the Roman Catholic Bishop of Monterey v. Salomon Cota

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ROMAN CATHOLIC BISHOP OF
MONTEREY,
Plaintiff,
v.
SALOMON COTA,
Defendant,
and
UNITED STATES OF AMERICA,
Real-party-in-interest-
Defendant-Appellee,
v.
SAVE THE VALLEY, LLC,
Intervenor-Appellant.
No. 16-55353
D.C. No.
2:15-cv-08065-JFW-RAO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 6, 2018
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY,** District
Judge.
Save the Valley, LLC, appeals an order denying Save the Valley’s motion
to remand a proceeding to the Santa Barbara County Superior Court. A district
court’s denial of a motion to remand is not a final decision on the merits under 28
U.S.C. § 1291. Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1274–75
(9th Cir. 1990). That general rule against appellate review of interlocutory orders
does not apply if the order “effectively sends a party out of court.” Ramirez v. Fox
Television Station, Inc., 998 F.2d 743, 746 (9th Cir. 1993) (quoting United States
v. Lee, 786 F.2d 951, 956 (9th Cir. 1986)). Here, even if the order denying the
motion to remand did not itself end the litigation, the district court’s
simultaneously-filed order denying Save the Valley’s motion to intervene did, and
therefore would have been appealable as a final judgment. See United States v.
City of Oakland, 958 F.2d 300, 302 (9th Cir. 1992) (citing Stringfellow v.
Concerned Neighbors in Action, 480 U.S. 370, 377 (1987)). We therefore construe
the appeal as taken from the denial of intervention and exercise appellate
jurisdiction.
** The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

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Save the Valley is entitled on appeal to argue that the district court lacked
subject matter jurisdiction to enter the order denying intervention. See Moe v.
United States, 326 F.3d 1065, 1070 (9th Cir. 2003). Thus we consider Save the
Valley’s sole argument on appeal, which is that the removal was improper. This
argument fails.
1. Under the federal officer removal statute, the United States may remove
to federal court any “proceeding” in which a judicial order is “sought or issued,”
provided that the proceeding is “against or directed to” the federal government “or
any agency thereof or any officer . . . of the United States.” 28 U.S.C. § 1442.
Here, final judgment in the underlying quiet title action was issued in 1906.
Because there was no ongoing “proceeding” other than the motion to intervene, the
United States effectively removed only the motion to intervene, not the prior
action, no matter how the notice of removal was phrased. See Ristuccia v. Adams,
406 F.2d 1257, 1258 (9th Cir. 1969) (per curiam) (“It would seem obvious that to
remove an action to the federal courts from a state court, it must first be pending in
the state court.”). As to that removal, because the United States is a named
defendant in the proposed complaint in intervention, the action is “against or
directed to” the United States. The government therefore properly removed the
proceedings related to Save the Valley’s motion to intervene under the federal
officer removal statute.

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2. However, even if we assume that the entire action that resulted in the
1906 judgment was removed to federal court, removal was proper because the
United States neither waived sovereign immunity nor its right of removal. Save
the Valley seeks redress for actions the United States allegedly took in its capacity
as owner of land in the Santa Ynez Valley. By contrast, in the underlying quiet
title action, the United States merely appeared to defend the interests of the Santa
Ynez Band of the Chumash Mission Indians against the Roman Catholic Bishop of
Monterey. The United States did not waive its sovereign immunity or its right of
removal by participating in the state court action. See United States v. Mitchell,
463 U.S. 206, 212 (1983) (noting that “[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”); Willingham v. Morgan, 395 U.S. 402, 407 (1969) (noting that
“the right of removal under § 1442(a)(1) is . . . absolute” and that “one of the most
important reasons for removal is to have the validity of the defense of official
immunity tried in a federal court”).
Therefore, we AFFIRM the judgment of the district court.

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