Unpublished Disposition, 855 F.2d 861 (9th Cir. 1986)

MEMORANDUM^* 

Daniel L. Spoor, Kathleen S. Spoor, and Robert J. Wright appeal pro se the dismissal of the Spoors' cross-claim against the United States. The district court dismissed the claim on the grounds that the court lacked subject matter jurisdiction because the Spoors had failed to establish that the United States had waived its sovereign immunity. On appeal, the Spoors and Wright assert that 28 U.S.C. § 2410 provides the requisite waiver of immunity. We dismiss Wright from the appeal for lack of standing and affirm the dismissal of the Spoors' cross-claim against the United States.

On June 26, 1986, the Federal Land Bank of Spokane ("FLBS") instituted a foreclosure action in state court on a parcel of property. The FLBS named as defendants Daniel L. and Kathleen S. Spoor ("Spoors"), who were the original mortgagors; Robert J. Wright ("Wright"), who was the current title holder of record; and the United States, which had a lien on the property through the Farmers Home Administration ("FmHA").

On August 5, 1986, the Spoors answered the complaint. The answer included a counterclaim against the bank and a cross-claim against the United States.¹  The Spoors alleged misconduct on the part of government officials, and sought ten million dollars in compensatory damages as well as ten million dollars in punitive damages. The complaint did not provide a statement or any authority to show that the United States had waived its sovereign immunity.

The United States removed the action to federal district court pursuant to 28 U.S.C. § 1442(a) (1), then moved for dismissal of the Spoors' cross-claim on the grounds that the United States had not waived its sovereign immunity. The Spoors filed a "Response to Motion to Dismiss" which consisted of conclusory allegations that the FmHA and the FLBS could not file suit against anyone unless they also could be sued. It did not contain any authority to show the United States had waived its immunity.

On September 29, 1986, the magistrate issued his findings and recommendation. The magistrate found that the doctrine of derivative jurisdiction applied to the case, and that the Spoors had not shown that the United States had consented to be sued in state court. The magistrate then recommended dismissal of the cross-claim--for lack of jurisdiction--and remand of the rest of the case.

After finding "no error" in the magistrate's findings and recommendation, the district court adopted them, dismissed the Spoors' action against the United States, and remanded the remainder of the case to state court. The Spoors and Wright, who was not a party to the Spoors' cross-claim, timely appealed the dismissal.

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

Although Wright is named as an appellant in this action, he was not a party to the affirmative claims brought by the Spoors. He thus has no standing to appeal the dismissal of the Spoors' cross-claim against the United States. See Bryant v. Technical Research Co., 654 F.2d 1337, 1343 (9th Cir. 1981).

The doctrine of derivative jurisdiction--which states that the removal jurisdiction of the federal court derives entirely from that of the state court--applies in cases filed prior to June 19, 1986. Guidry v. Durkin, 834 F.2d 1465, 1468 & n. 4 (9th Cir. 1987); Wilson v. Bill Barry Enterprises, Inc., 822 F.2d 859, 861 & n. 2 (9th Cir. 1987). Claims filed on or after that date are not subject to the doctrine, but instead fall under 28 U.S.C.A. Sec. 1441(e) (West Supp.1988).²  Id.; see also Sorosky v. Burroughs Corp., 826 F.2d 794, 801 (9th Cir. 1987). That statute allows a federal district court to exercise removal jurisdiction in cases where there is no state court jurisdiction, so long as there is a basis for federal subject matter jurisdiction.

In the instant case, the FLBS initiated its action on or after June 26, 1986, one week after the June 19, 1986 effective date of Sec. 1441(e). The Spoors' cross-claim was filed six weeks later, on August 13, 1986. Whether measured by the date that the original claim against the Spoors was filed, or more appropriately, by the date that the Spoors' cross-claim was filed, the case falls within Sec. 1441(e). The district court, however, analyzed the case under the doctrine of derivative jurisdiction instead of under Sec. 1441(e).³  The court thus applied the wrong legal standard to determine that it did not have jurisdiction over the Spoors' cross-claim.

Despite this error, the district court was correct in dismissing the Spoors' action against the United States. The Spoors did not allege--in either their cross-claim or "Response to Motion to Dismiss"--any basis for a waiver of immunity in state or federal court. Moreover, their contention on appeal that 28 U.S.C. § 2410 provides the necessary waiver of sovereign immunity lacks merit.⁴ 

"The United States does not waive sovereign immunity by implication; any waiver must be unequivocally expressed." Metropolitan Water Dist. of Southern Cal. v. United States, 830 F.2d 139, 142 (9th Cir. 1987), cert. granted, 108 S. Ct. 1572 (1988). Any statutory waiver of immunity must be strictly construed. Block v. North Dakota ex rel. Bd. of Univ. & School Lands, 461 U.S. 273, 287 (1983); see also Lehman v. Nakshian, 453 U.S. 156, 161 (1981) ("this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.") (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).

Section 2410 only provides a waiver of sovereign immunity in specific types of actions. Those actions are listed in 28 U.S.C. § 2410(a), which states in relevant part

the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter--

(1) to quiet title to,

(2) to foreclose a mortgage or other lien upon,

(3) to partition,

(4) to condemn, or

(5) of interpleader or in the nature of interpleader with respect to, real or personal property on which the United States has or claims a mortgage or other lien.

The Spoors' cross-claim against the United States does not fall within any of these provisions. Thus, 28 U.S.C. § 2410 does not provide a waiver of sovereign immunity which would support federal or state court jurisdiction over the Spoors' cross-claim.

Similarly, none of the other statutes mentioned in the Spoors' cross-claim would support a finding of jurisdiction. The pertinent sections of the Farm Credit Act, 12 U.S.C. §§ 2001-2055, address the creation of the Federal Land Bank system and its management. Section 2012(4) provides that although the federal land banks are instrumentalities of the federal government, they may " [s]ue and be sued" as a "body corporate". There is no provision in the Act, however, constituting the waiver of sovereign immunity necessary to support a suit directly against the United States. In addition, no provision within the relevant part of the Consolidated Farm and Rural Redevelopment Act, 7 U.S.C. §§ 1921-2006, provides the requisite waiver of sovereign immunity.

Since the Spoors have provided no basis for a waiver of sovereign immunity against suit in state or federal court, dismissal of their action against the United States was appropriate. Thus, while the district court erred by applying the doctrine of derivative jurisdiction, it did not err in dismissing the cross-claim.

We therefore DISMISS Wright from the appeal and AFFIRM the dismissal of the Spoors' cross-claim against the United States.