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No. 9393295
United States Court of Appeals for the Ninth Circuit
Guillermo Acosta, Jr. v. Kilolo Kijakazi
No. 9393295 · Decided April 21, 2023
No. 9393295·Ninth Circuit · 2023·
FlawFinder last updated this page Apr. 2, 2026
Case Details
Court
United States Court of Appeals for the Ninth Circuit
Decided
April 21, 2023
Citation
No. 9393295
Disposition
See opinion text.
Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO ACOSTA, Jr., No. 22-55288
Plaintiff-Appellant, D.C. No.
2:21-cv-05974-JFW-JPR
v.
KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM*
of Social Security; NANCY A.
BERRYHILL, Former Acting Commissioner
of the Social Security Administration; JESSE
GALLEGOS; GARY GONZALEZ; DOES,
1-10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted April 19, 2023**
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Colleen McMahon, United States District Judge for
the Southern District of New York, sitting by designation.
Guillermo Acosta, Jr., (“Acosta”) appeals the district court’s denial of his
motion for leave to file an amended complaint in his suit against the Commissioner
of the Social Security Administration (“SSA”) and his former supervisors
(collectively, “Defendants”) arising from his 2015 termination from the SSA.1 We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in denying Acosta’s motion because further
amendment would be futile under the derivative jurisdiction doctrine, which
dictates that the federal court’s jurisdiction is “derivative” of the state court’s
jurisdiction in cases removed to the federal court. In re Elko Cnty. Grand Jury,
109 F.3d 554, 555 (9th Cir. 1997). If the state court lacks subject matter
jurisdiction, the federal court acquires none, even if “in a like suit originally
brought in federal court it would have had jurisdiction.” Minnesota v. United
States, 305 U.S. 382, 389 (1939). In this case, the state court did not have
jurisdiction because sovereign immunity bars Acosta’s state and common law
claims, see Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976), and his Title
VII claims can be brought only in federal court, 28 U.S.C. § 1346(b)(1). Because
1
Although Acosta’s notice of appeal states that he appeals the district court’s
dismissal of his complaint, he concedes in his reply that he does not challenge the
dismissal. Because he has affirmatively waived this argument for the purpose of
this appeal we need not reach it. See Etemadi v. Garland, 12 F.4th 1013, 1026 (9th
Cir. 2021) (“[W]aiver is the intentional relinquishment of a known right.”), reh’g
granted, opinion withdrawn, 36 F.4th 1238 (9th Cir. 2022).
2
the state court did not have jurisdiction, the federal court does not acquire
jurisdiction on removal and the district court was required to dismiss the complaint
for lack of jurisdiction. See Cox v. U.S. Dep’t of Agric., 800 F.3d 1031, 1032 (9th
Cir. 2015). Further amendment of the complaint would be futile because the
district court lacked jurisdiction. Missouri ex rel. Koster v. Harris, 847 F.3d 646,
656 (9th Cir. 2017) (“[A] district court does not err in denying leave to amend
where the amendment would be futile.” (internal quotation marks omitted)).
Acosta’s arguments for why the derivative jurisdiction doctrine should not
apply are unavailing. First, although Congress abrogated the derivative
jurisdiction doctrine with respect to 28 U.S.C. § 1441, it did not do so with respect
to 28 U.S.C. § 1442, the basis for Defendants’ removal. We have reaffirmed that
the derivative jurisdiction doctrine continues to apply to removal under § 1442.
See Cox, 800 F.3d at 1032. Second, even if Acosta is correct that the derivative
jurisdiction doctrine creates a procedural defect to removal that can be waived,
Defendants did not waive the issue. Defendants promptly raised the derivative
jurisdiction doctrine in their motion to dismiss. See Bracken v. Okura, 869 F.3d
771, 776 n.3 (9th Cir. 2017) (finding that a party did not waive an issue when they
asserted it in an opposition to a motion to dismiss and in a motion for
reconsideration).
3
AFFIRMED.2
2
Because we affirm the district court’s denial of Acosta’s motion on the basis of
the derivative jurisdiction doctrine, we do not reach Acosta’s argument that the
district court erred in denying leave to amend based on Acosta’s failure to follow
the district court’s Local Rules and Standing Order.
4
Plain English Summary
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C.
Key Points
01NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C.
02COURT OF APPEALS FOR THE NINTH CIRCUIT GUILLERMO ACOSTA, Jr., No.
03KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM* of Social Security; NANCY A.
04BERRYHILL, Former Acting Commissioner of the Social Security Administration; JESSE GALLEGOS; GARY GONZALEZ; DOES, 1-10, inclusive, Defendants-Appellees.
Frequently Asked Questions
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C.
FlawCheck shows no negative treatment for Guillermo Acosta, Jr. v. Kilolo Kijakazi in the current circuit citation data.
This case was decided on April 21, 2023.
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