Derivative jurisdiction is a theory that holds that a federal district court does not acquire subject matter jurisdiction by removal if the state court lacked jurisdiction over the original action.” Fed. Home Loan Mortg. Corp. v. Gilbert, 656 Fed.Appx. 45, 49 (6th Cir. 2016) (quotations omitted); Hines v. Astrue, 876 F.Supp.2d 1001, 1004 (S.D. Ohio 2012) (“Under the derivative jurisdiction doctrine, because the state court (where the action was initially filed) did not have subject matter jurisdiction over Plaintiff's claim, this Court also lacks subject matter jurisdiction upon a 28 U.S.C. § 1442 removal.”)
” Hines v. Astrue, 876 F.Supp.2d 1001, 1003 (S.D. Ohio 2012) (citing Jourdan v. Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991)); see also E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought.”).
Pursuant to the derivative jurisdiction doctrine, this Court regularly dismisses actions filed against federal officers and/or agencies after they are removed under 28 U.S.C. § 1442. See e.g., Mines v.Comm'n of Soc. Sec., 876 F. Supp. 2d 1001, 1004 (S.D. Ohio 2012); Waters v.FBI, Case No. 2:11-cv-17, slip op. (S.D. Ohio April 26, 2011); Graber v. Astrue, 2:07-cv-1254, 2009 WL 728564, * 4 (S.D. Ohio 2009); Ohio v.Smith, No. 2:06-cv-1022, 2007 WL 1114252 (S.D. Ohio April 12, 2007). Indeed, this Court has dismissed at least two such cases that were originally filed as petitions for writs of mandamus in the Ohio Supreme Court.
Upon consideration of the SSA's motion, the undersigned issued a Report and Recommendation recommending that the complaint be dismissed without prejudice for lack of subject matter jurisdiction because there was no “final decision” from the SSA to review. (Docket No. 27 at 5 (citing Hines v. Astrue, 876 F.Supp.2d 1001, 1004 (S.D. Ohio 2012)).)
As a result, “[a]bsent an unequivocal waiver of [that] sovereign immunity and consent to be sued, a court does not have jurisdiction over any claims made against the United States and its agencies.” Hines v. Astrue, 876 F.Supp.2d 1001, 1004 (S.D. Ohio 2012); see also United States v. Mitchell, 445 U.S. 535, 538 (1980) (“[T]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. A waiver of sovereign immunity
There is no jurisdiction on which this Court could predicate review of Plaintiff's claim because there is no “final decision” of the Commissioner. Hines v. Astrue, 876 F.Supp.2d 1001, 1004 (S.D. Ohio 2012). Because this Court lacks subject matter jurisdiction, it does not reach Defendant's alternative request for a ruling that it is entitled to judgment as a matter of law under Rule 56(c) (Docket No. 11 at 5-6); Plaintiff's request for a preliminary injunction (Docket No. 1 at 6); or Plaintiff's request for a declaratory judgment (Docket No. 13 at 7-8).
Without a final decision, the court does not have subject matter jurisdiction to review the matters asserted in the complaint. Hines v. Astrue, 876 F. Supp. 2d 1001, 1004 (S.D. Ohio 2012). In the instant case, Defendant has provided a Declaration of Huwaida Hasan, District Manager of the Grand River Social Security Office in Detroit, Michigan, that is supported by numerous exhibits.
Plaintiff has the burden of demonstrating subject-matter jurisdiction, and he filed no reply concerning his failure to exhaust. See Hines v. Astrue, 876 F. Supp. 2d 1001, 1004, n. 2 (S.D. Ohio Feb. 21, 2012) (stating that "even if Plaintiff had properly filed her complaint in this Court, her Social Security claim would still be subject to dismissal because ... she failed to present any evidence that she exhausted her administrative remedies). Based on the foregoing, even if the Notice was in error, this Court is without jurisdiction to evaluate Plaintiff's challenge to it based on his failure to pursue that claim with the agency.
See the following district courts where their circuits have not had the occasion to rule on the issue post-2002 amendment: (Fifth Circuit) Olivier Plantation, LLC v. St. Bernard Parish, 744 F. Supp. 2d 575, 587 (E.D. La. 2010); In re Katrina Canal Breaches Consol. Litig., Civ. A. No. 05-4182, 2007 WL 1461036, at *2 (E.D. La. 2007); JAJ Ventures, 2009 WL 911020, at *3; (Sixth Circuit) Hines v. Astrue, Civ. A. No. 3:11-CV-409, 2012 WL 2892236, at *2 (S.D. Ohio Feb. 21, 2012); Johnson v. Louisville Int'l Airport, Civ. A. No. 3:11-CV-216-H, 2011 WL 2710364, at * 11 (W.D. Ky. July 12, 2011) ; (Ninth Circuit) F.B.I, v. Superior Ct. of Cal, 507 F. Supp. 2d 1082, 1092 (N.D. Cal. 2007) (citing In re Elko Cnty. Grand Jury, 109 F.3d at 556); (Tenth Circuit) Bowers v. J & M Disc. Towing, LLC, 472 F. Supp. 2d 1248, 1265 (D.N.M. 2006) (citing Fent v. Okla. Water Res. Bd., 235 F.3d 553, 555 (10th Cir. 2000)); (Eleventh Circuit) Nelson v. U.S. Sec'y of Hous. & Urban Dev., Civ. A. No. 3:10-CV-1118-J-37-MCR, 2011 WL 5357844, at *6 (M.D. Fla. Nov. 4, 2011); (D.C. Circuit) McKoy-Shields v. First Washington Realty, Inc., Civ. A. No. 11-CV-01419-RLW, 2012 WL 1076195, at *2 (D.D.C. Mar. 30, 2012) . For these reasons, the Court concludes that with respect to the continuing viability of derivative jurisdiction, Congress has articulately chosen to abrogate the common law doctrine for removals effectuated exclusively under Section 1441.