Opinion
No. 13-15225
07-13-2015
LARRY L. COX and RENEE M. COX, Plaintiffs - Appellees, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:11-cv-00454-RCJ-WGC MEMORANDUM Appeal from the United States District Court for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted July 6, 2015 San Francisco, California Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). --------
Plaintiffs-Appellees Larry and Renee Cox defaulted on a rural housing loan granted by Defendant-Appellee U.S. Department of Agriculture ("USDA"). When USDA initiated foreclosure proceedings, the Coxes elected to participate in Nevada's Foreclosure Mediation Program. The mediator found that USDA did not participate in mediation in good faith, chiefly because USDA regulations prevented the agency from entertaining the loan modifications that the Coxes requested. The Coxes petitioned in state court for an order modifying their loan.
USDA removed the petition to the District of Nevada under 28 U.S.C. § 1442(a)(1) and moved to dismiss pursuant to sovereign immunity and other doctrines. The district court held that it lacked subject matter jurisdiction and remanded to state court. USDA now appeals, arguing that remand was improper because USDA enjoys sovereign immunity from suit in Nevada state courts. We have jurisdiction under 28 U.S.C. § 1291, and reverse the district court's order remanding the petition to state court.
Because the record contains no evidence that USDA waived its sovereign immunity to the Coxes' petition, the Nevada state court lacked jurisdiction over the action. See Neb. ex rel. Dep't of Soc. Servs. v. Bentson, 146 F.3d 676, 679-80 (9th Cir. 1998). Accordingly, under the derivative jurisdiction doctrine, the district court also lacks jurisdiction over the petition on removal. See In re Elko Cnty. Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997). The district court therefore was bound to dismiss the petition rather than remand to state court. See id.
Because we conclude that the district court erred in failing to dismiss the petition for lack of jurisdiction, we do not reach the other issues raised on appeal.
The district court's remand order is REVERSED and the action REMANDED with instructions that the district court dismiss the Coxes' petition for lack of jurisdiction.