Hardnett v. Bessent

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DARRYLE C. HARDNETT,
Plaintiff,
v.
SCOTT BESSENT, Secretary Department
of the Treasury, et al.,
Defendants.
Case No.: 25-CV-2212 JLS (JLB)
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
(ECF No. 3)
Presently before the Court is Defendants Scott Bessent’s and Department of the
Treasury’s (“Defendants”) Motion to Dismiss Complaint (“Mot.,” ECF No. 3). 	Also
before the Court are Plaintiff Darryle C. Hardnett’s Opposition to Defendants’ Motion to
Dismiss Complaint (“Opp’n,” ECF No. 5) and Defendants’ Reply in Support of Motion to
Dismiss 	Complaint 	(“Reply,” 	ECF 	No. 	6). 	Having 	carefully 	reviewed 	Plaintiff’s
Complaint (“Compl.,” ECF No. 1-2), the Parties’ arguments, and the law, the Court
GRANTS the Motion and DISMISSES WITH PREJUDICE Plaintiff’s Complaint.
/ / /
/ / /
/ / /
/ / /
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BACKGROUND
On July 14, 2025, pro se Plaintiff filed this action in the Superior Court of California,
County of San Diego against “Scott Besent,1 Secretary, Department of the Treasury
(Internal Revenue Service).”2 Compl. at 6. 	Plaintiff alleges that Defendants wrongfully
terminated him and subjected him to race discrimination and harassment in violation of 42
U.S.C. § 1981. Id. ¶¶ 3, 5–7. Plaintiff states that during his employment with the Internal
Revenue Service (“IRS) he “was subjected to repeated acts of racial discrimination and
was treated less favorably than non-Black employees.” 	Id. at 6. Plaintiff further alleges
that he was wrongfully terminated “after being notified via email of successfully
completing Revenue Agent training,” allegedly making Plaintiff “the first Revenue Agent
to be terminated immediately following training.” Id.
On August 27, 2025, Defendants removed the action to federal court “pursuant to
the federal officer and federal agency removal statute, 28 U.S.C. § 1442(a)(1).” Mot. at 3;
see ECF No. 1 (“Not. of Removal”). On September 3, 2025, Defendants filed the present
Motion arguing lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Mot.
at 3.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) allows a party to file a motion to dismiss a
case for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When a party files
such a motion, “there is a presumption of a lack of jurisdiction until the plaintiff
affirmatively proves otherwise.” Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp.
704, 706 (D. Ariz. 1996). In a facial attack on subject matter jurisdiction, such as the one
here, courts must consider the allegations of the complaint to be true and draw all
reasonable inferences in the plaintiff’s favor. See Wolfe v. Strankman, 392 F.3d 358, 362
1 The Court notes that Plaintiff misspelled Defendant Scott Bessent’s name in his Complaint.
2 It is unclear whether Plaintiff intended to name the Department of the Treasury as a Defendant.
Construing pro se Plaintiff’s Complaint liberally, the Court assumes Plaintiff intended to name both Scott
Bessent and the Department of the Treasury as Defendants.
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(9th Cir. 2004), overruled on other grounds by, Munoz v. Superior Ct. of L.A. Cnty., 91
F.4th 977 (9th Cir. 2004). Additionally, courts have a duty to liberally construe a pro se
litigant’s pleadings. 	See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988).
DISCUSSION
Defendants argue they are immune from suit under sovereign immunity. Mot. at 4.
Thus, Defendants conclude that the Court lacks subject matter jurisdiction under the
doctrine of derivative jurisdiction. Id. at 4–9.
I. 	Sovereign Immunity
When a party sues the federal government, the law on which such action is based
must contain an explicit waiver of sovereign immunity for subject matter jurisdiction to
exist, as “[i]t is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.” 	United States v. Mitchell,
463 U.S. 206, 212 (1983). 	A waiver of sovereign immunity must be “‘unequivocally
expressed’ in the text of a relevant statute[,]” and “‘[a]ny ambiguities in the statutory
language are to be construed in favor of immunity.’” Daniel v. Nat’l Park Serv., 891 F.3d
762, 768–69 (9th Cir. 2018) (first quoting United States v. Bormes, 568 U.S. 6, 9–10
(2012); then quoting FAA v. Cooper, 566 U.S. 284, 290 (2012)). “In sovereign immunity
analysis, any lawsuit against an agency of the United States or against an officer of the
United States in his or her official capacity is considered an action against the United
States.” 	Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003) (citing Sierra Club
v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001)). “A party bringing a cause of action against
the federal government bears the burden of showing an unequivocal waiver of immunity.”
Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987) (citing Holloman v. Watt, 708
F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984)).
Here, Plaintiff names Scott Bessent, in his official capacity as Secretary of the
Department of the Treasury, and the Department of the Treasury as Defendants. 	See
Compl. at 2. 	Therefore, Plaintiff bears the burden of showing an unequivocal waiver of
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sovereign immunity under 42 U.S.C. § 1981. 	See Baker, 817 F.2d at 562. Plaintiff does
not address Defendants’ arguments related to sovereign immunity in his Complaint or
Opposition. 	See generally Compl.; Opp’n. Therefore, Plaintiff has failed to identify any
explicit waiver of sovereign immunity. See Eiselin v. USCIS San Diego, 23-CV-1961 JLS
(AHG), 2024 WL 733644, at *3 (S.D. Cal. Feb. 22, 2024) (finding no waiver of sovereign
immunity where “[p]laintiff’s filings [did] not identify a statutory waiver of sovereign
immunity, nor discuss sovereign immunity at all”). 	Due to Plaintiff’s pro se status, the
Court will address whether claims under § 1981 are barred by sovereign immunity.
“Section 1981 gives all citizens of the United States ‘the same right in every State
or Territory to make and enforce contracts . . . as is enjoyed by white citizens.’” Dears v.
Sec’y of Health and Hum. Servs., No. 20-CV-12-BAS-AGS, 2020 WL 1062941, at *3 (S.D.
Cal. Mar. 4, 2020) (quoting 42 U.S.C. § 1981). “For claims arising under 42 U.S.C. § 1983
and § 1985, the Ninth Circuit found ‘no evidence in either statute that Congress intended
to subject federal agencies to § 1983 and § 1985 liability.’” Id. (quoting Jachetta v. United
States, 653 F.3d 898, 908 (9th Cir. 2011)). The Ninth Circuit has yet to address directly
whether § 1981 claims are barred by sovereign immunity. Id. However, the Fifth, Seventh,
and Eleventh Circuits have “held that sovereign immunity bars § 1981 claims as well.”
Gottschalk v. City and Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1162 (N.D. Cal. Aug.
12, 2013) (dismissing §§ 1981, 1983, and 1985 claims against federal defendants with
prejudice). The Court follows other courts in concluding that the “Ninth Circuit has used
similar reasoning in rejecting § 1983 claims against federal government actors, it seems
likely that it would follow other circuits in finding § 1981 inapplicable to federal
government actors.”3 Id.; see also Dears, 2020 WL 1062941, at *3 (dismissing claim under
3 Further, other courts “have found § 1981 claims inapplicable to federal actors because they are acting
not ‘under color of state law,’ as the statute states, but under color of federal law.” Gottschalk, 964 F.
Supp. 2d at 1162 (first citing Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005), and then citing Davis-
Warren Auctioneers, J.V. v. F.D.I.C., 215 F.3d 1159, 1161 (10th Cir. 2000)); see also Magassa v. Wolf,
487 F. Supp. 3d 994, 1005–07 (W.D. Wash. 2020) (dismissing § 1981 claim against a federal agent acting
in the course of his federal duties for lack of subject matter jurisdiction).
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§ 1981 on sovereign immunity grounds); Jean-Baptiste v. U.S. Dep’t of Justice, No. 23-
432 (RC), 2024 WL 1253858, at *4 (D.D.C. Mar. 25, 2024) (“There is nothing in the text
of Section[] 1981 . . . that suggests the United States has waived its immunity to suit under
these statutes. In fact, courts have expressly held the opposite.”).
In conclusion, because § 1981 does not explicitly waive the federal government’s
sovereign immunity, the Court lacks subject matter jurisdiction.
II. 	Derivative Jurisdiction
This action was removed by Defendants from state court pursuant to 28 U.S.C. §
1442(a)(1)—resulting in the Court’s jurisdiction being derivative of the state court’s
jurisdiction. 	See Not. of Removal; In re Elko Grand Jury, 109 F.3d 554, 555 (9th Cir.
1997) (“[W]e note that because this case was removed from state court pursuant to § 1442,
our jurisdiction is derivative of the state court’s jurisdiction.”). “The doctrine of derivative
jurisdiction provides that ‘if the state court lacks jurisdiction of the subject-matter or of the
parties, the federal court acquires none upon removal, although it might in a like suit
originally brought there have had jurisdiction.’” 	Rubie’s LLC v. First Am. Title Co., No.
18-CV-1052-DAD-SKO, 2018 WL 6419674, at *3 (E.D. Cal. Dec. 6, 2018) (quoting
Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922)) (cleaned up).
“[T]he long-standing derivative jurisdiction doctrine provides that if a state court lacks
jurisdiction over a case, a federal court does not acquire jurisdiction on removal.”
Rodriguez v. United States, 788 Fed. App’x 535, 536 (9th Cir. 2019) (citing Minnesota v.
United States, 305 U.S. 382, 389 (1939)).
While Congress abolished this doctrine with respect to the general removal statute,
28 U.S.C. § 1441(a), the Ninth Circuit has “recently affirmed that the doctrine still applies
to the federal officer removal statute,” 28 U.S.C. § 1442(a)(1). Id. (citing Cox v. U.S. Dep’t
of Agric., 800 F.3d 1031, 1032 (9th Cir. 2015)). The Ninth Circuit in Cox held that because
there was no evidence of sovereign immunity waiver, the state court lacked jurisdiction
over the action. Cox, 800 F.3d at 1032. Because the state court lacked jurisdiction and the
action was removed under § 1442(a)(1), the district court also lacked jurisdiction over the
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petition on removal under the derivative jurisdiction doctrine, and “therefore was bound to
dismiss the petition rather than remand to state court.” 	Id. (citing In re Elko Cnty. Grand
Jury, 109 F.3d at 555).
Therefore, “[a]s the state court was without jurisdiction over this case, this action
must be dismissed for lack of subject matter jurisdiction under the derivative jurisdiction
doctrine.” 	Eiselin, 2024 WL 733644, at *3 (first citing Cox, 800 F.3d at 1032; and then
citing Kleidman v. Barash, No. CV 22-610-DMG (JPRX), 2022 WL 1613019, at *2 (C.D.
Cal. Apr. 21, 2022), aff’d, 2023 WL 9470708 (9th Cir. July 3, 2023)).4
III. 	Leave to Amend
A district court should typically “not dismiss a pro se complaint without leave to
amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured
by amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker
v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988)). 	But under the derivative
jurisdiction doctrine, “a case filed in state court over which that court lacks jurisdiction is
void from its very beginning.” 	Rubie’s LLC, 2018 WL 6419674, at *4. As a result, this
Court “has no jurisdiction to acquire over the case via removal.” Id. The Court thus cannot
grant Plaintiff leave to amend. 	See Thibodeaux v. U.S. Postal Serv., No. 20-CV-0651
W (LL), 2021 WL 242974, at *2 (S.D. Cal. Jan. 25, 2021) (denying leave to amend where
action was dismissed pursuant to the derivative jurisdiction doctrine); Acosta v. Kijakazi,
No. 22-55288, 2023 WL 3033499, at *1 (9th Cir. Apr. 21, 2023) (finding “further
4 Defendants correctly assert that even if the Court were to liberally construe Plaintiff’s Complaint as a
Title VII claim, the Court still lacks jurisdiction. See, e.g., Bullock v. Napolitano, 666 F.3d 281, 284, 286
(4th Cir. 2012) (“Congress waived sovereign immunity for Title VII suits brought by federal employees
against the United States, but it explicitly provided for jurisdiction only in federal courts . . . [U]nder this
doctrine of derivative jurisdiction, because the [state court] did not have subject-matter jurisdiction over
[plaintiff’s] Title VII claim against the Secretary, neither did the district court after the Secretary removed
the action under 28 U.S.C. § 1442(a).”); Sadozai v. Def. Language Inst., No. 21-CV-1409-BLF, 2021 WL
4710564, at *1–2 (N.D. Cal. Oct. 7, 2021) (dismissing Title VII claim under derivative jurisdiction
because a Title VII claim can only be brought in federal court); Robinson v. United States Dep’t of Health
& Hum. Res., No. 21-1644 (CKK), 2021 WL 4798100, at *4 (D.D.C. Oct. 14, 2021) (“The United States’s
waiver of sovereign immunity, therefore, does not extend to Title VII claims filed in [state court], leaving
that court without jurisdiction over Title VII claims filed against federal agencies . . . .”).
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amendment would be futile under the derivative jurisdiction doctrine,” as the “district court
lacked jurisdiction”).
CONCLUSION
In light of the foregoing, the Court GRANTS Defendant’s Motion to Dismiss (ECF
No. 3) and DISMISSES WITH PREJUDICE and WITHOUT LEAVE TO AMEND
Plaintiff’s Complaint (ECF No. 1-2). 	As this concludes the litigation in this matter, the
Clerk of the Court SHALL CLOSE the file.
IT IS SO ORDERED.
Dated: March 23, 2026
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