PATRICK E. HIGGINBOTHAM, Circuit Judge:
Jesus Ivan Lopez filed state law claims in state court against Sentrillion Corporation, a general contractor, for injuries he sustained during a construction project for the United States Custom and Border Protection. Sentrillion filed third-party indemnity and contribution claims under the Federal Tort Claims Act (FTCA) against the United States. The United States, in turn, removed the case to federal court under 28 U.S.C. § 1442(a) and then immediately moved to dismiss under the derivative jurisdiction doctrine. The district court dismissed all claims against the United States and remanded the remaining claims — Lopez's state law claims against Sentrillion — to state court. Sentrillion now appeals both the dismissal and remand. We affirm the district court.
Lopez filed suit in state court against his employer Sentrillion (the appellant here), asserting state law claims arising out of a workplace injury that occurred on July 25, 2011. At the time of the accident, Lopez was working for Ramon R. Vaquera d/b/a Yucca Contracting, a subcontractor for Sentrillion, the general contractor, on a project for the United States Customs and Border Protection. Sentrillion filed a Third Party Petition in state court against the United States on October 4, 2012, seeking contribution and indemnification under the FTCA. The United States removed the case to federal court under 28 U.S.C. § 1442(a), the federal officer removal statute, on October 24.
The following day, the United States moved to dismiss the claims against it for lack of jurisdiction pursuant to the derivative jurisdiction doctrine. The district court initially denied the motion to dismiss, reasoning that the derivative jurisdiction doctrine did apply to removals under § 1442 but that the United States had waived the doctrine by removing the case to federal court. On the United States' motion for reconsideration, however, the district court granted the motion to dismiss the third party claims against the United States. It continued to maintain that the derivative jurisdiction doctrine applied to removals under § 1442. But on reconsideration, it determined that Supreme Court precedent precluded its earlier finding that the United States had waived the derivative jurisdiction doctrine, at least here where the United States moved to dismiss the day after it removed the case to federal court. It explained that "when the [derivative jurisdiction] doctrine is raised promptly upon removal prior to adjudication of the merits, the doctrine must be invoked to limit the federal court's jurisdiction, if any, to that of the state court." The district court thus dismissed Sentrillion's third-party claims against the United States for lack of jurisdiction on July 8, 2013.
The district court then determined that it lacked supplemental jurisdiction over the pendent state-law claims because there is no claim over which the court had original jurisdiction. It concluded that the doctrine of derivative jurisdiction "prevented
While the United States' motion to dismiss for lack of jurisdiction was pending, the United States filed a second motion to dismiss, arguing that any claim for contribution or indemnification that Sentrillion has against the government arose from its contract with the United States and therefore, under the Contract Disputes Act,
As an initial matter, Lopez argues that this Court lacks jurisdiction to review the appeal from the remand order. 28 U.S.C. § 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise." The language of the statute creates an unambiguous exception to the general rule of unreviewability for cases removed to federal court pursuant to § 1442, as was the case here. Lopez urges us to disregard this clear language and hold instead that the exception is limited to review of orders remanding suits against federal officers, which it alleges was Congress' intent in passing the Removal and Clarification Act of 2011.
Sentrillion argues that the district court erred in dismissing Sentrillion's third-party FTCA claims against the United States based on the derivative jurisdiction doctrine. We review questions of law de novo.
The district court determined that the derivative jurisdiction doctrine stripped it of jurisdiction over the third-party claims against the United States, and it therefore dismissed those claims on July 8, 2013. The derivative jurisdiction doctrine maintains that when a case is removed from state to federal court, the jurisdiction of the federal court is derived from the state court's jurisdiction. Thus, "[w]here the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although in a like suit originally brought in a federal court it would have had jurisdiction."
We disagree. In 1986, Congress amended 28 U.S.C. § 1441(e) to add language that eliminated the application of the derivative jurisdiction. That amendment provided that "the court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have any jurisdiction over that claim."
But any ambiguity about the endurance of the derivative jurisdiction doctrine as applied to removals under § 1442 was eliminated when Congress amended § 1441 in 2002 to add the words "removed under this section." Thus, as amended and renumbered, 28 U.S.C. § 1441(f) now provides: "The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have any jurisdiction over that claim."
Sentrillion urges us to hold that the 1986 amendment to § 1441 abrogated the derivative
Thus, we affirm the district court's holding that it was bound by extant Supreme Court precedent to dismiss Sentrillion's claims against the United States under the derivative jurisdiction doctrine.
Sentrillion also contends that the district court erred in remanding the state law claims that remained after the district court dismissed the FTCA against the United States. The district court correctly noted that Sentrillion's third-party
But Sentrillion is mistaken both as a matter of fact and a matter of law. Following its dismissal under the derivative jurisdiction doctrine of the claims against the United States, the district court granted Lopez's motion to remand the state law claims to state court, and it did so explicitly on two grounds. The district court first looked to whether dismissal of the FTCA claim pursuant to the doctrine of derivative jurisdiction should be considered a jurisdictional defect barring it from original jurisdiction. It determined that the doctrine is jurisdictional and prevented the district court from establishing original jurisdiction because the state court lacked jurisdiction to adjudicate the FTCA claim. Thus, without original jurisdiction as to the only asserted federal claim, the district court determined it lacked a "jurisdictional anchor" to assert jurisdiction over the remaining state law claims, even if those claims derive from a common nucleus of operative fact. But the district court then separately determined that, assuming arguendo that the doctrine of derivative jurisdiction did not deprive it of original jurisdiction over Sentrillion's FTCA claim, the statutory factors of 28 U.S.C. § 1367(c) and common law factors weighed in favor of declining to exercise supplemental jurisdiction over the pendent state law claims.
Here, Sentrillion challenges on appeal only the subject matter jurisdiction basis for the district court's remand order, and ignores altogether the district court's alternative holding that if it possessed original jurisdiction, it would decline to exercise supplemental jurisdiction based on the balance of the 28 U.S.C. § 1367(c) statutory and common law factors. By not briefing any challenge to the district court's alternative § 1367(c) basis for remand, Sentrillion has waived it.