United States District Court, D. Colorado
PHILLIP M. JONES, Plaintiff.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
E. Blackburn, Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(1)
matter before me is Defendant's Motion To Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(1) [#13],
filed May 13, 2019. I grant the motion.
April 12, 2019, plaintiff, Phillip Jones, filed in the
District Court of Boulder County, Colorado, an appeal of the
Commissioner's August 13, 2018,  decision denying his claims
for disability insurance benefits and supplemental security
income benefits. (See Notice of Removal App., Exh.
1.) The Commissioner removed the action to this court
pursuant to 28 U.S.C. § 1442(a)(1). It now seeks to
dismiss, invoking the doctrine of derivative jurisdiction.
one hundred years ago, the United States Supreme Court held
that “[t]he jurisdiction of the federal court on
removal is, in a limited sense, a derivative jurisdiction. If
the state court lacks jurisdiction of the subject matter or
of the parties, the federal court acquires none, although it
might in a like suit originally brought there have had
jurisdiction.” Lambert Run Coal Co. v. Baltimore
& Ohio Railroad, 258 U.S. 377, 382, 42 S.Ct. 349,
351, 66 L.Ed. 671 (1922). See also Crow v. Wyoming Timber
Products Co., 424 F.2d 93, 96
(10th Cir. 1970); Colorado v. Nord, 377
F.Supp.2d 945, 949 (D. Colo. 2005). Although Congress has
since amended the general removal statute to eliminate
derivative jurisdiction as to removals under 28 U.S.C. §
1441(f),  the doctrine remains the law with respect
to removals under other statutory provisions, including under
section 1442. See In re Gray, 1998 WL 712663 at *1
(10th Cir. Oct. 13, 1998) (citing Arizona v.
Manypenny, 451 U.S. 232, 242 & n.17, 101 S.Ct. 1657,
1664 & n.17, 68 L.Ed.2d 58 (1981)); Bowers v. J &
M Discount Towing, LLC., 472 F.Supp.2d 1248, 1254
(D.N.M. 2006) (citing cases).
doctrine is dispositive here. A suit seeking review of a
final decision of the Commissioner of Social Security
“shall be brought in the district court of the United
States for the judicial district in which the plaintiff
resides, or has his principal place of business, or, if he
does not reside or have his principal place of business
within any such judicial district, in the United States
District Court for the District of Columbia.” 42
U.S.C.A. § 405(g). These are the express conditions of
the limited waiver of sovereign immunity under which Congress
has authorize suit against the government in this context.
See Federal Deposit Insurance Corp. v. Meyer, 510
U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994)
(“[T]he terms of [the United States'] consent to be
sued in any court define that court's jurisdiction to
entertain the suit.”) (citation and internal quotation
marks omitted); United States v. Mitchell, 463 U.S.
206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983)
(“It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is
a prerequisite for jurisdiction.”).
federal jurisdiction thus is exclusive, the District Court of
Boulder County, Colorado, lacked jurisdiction to consider the
appeal Mr. Jones of the disability determination. Because
section 1442(a) itself does not create or confer
jurisdiction, see Mesa v. California, 489 U.S. 121,
136, 109 S.Ct. 959, 968, 103 L.Ed.2d 99 (1989); Fent v.
Oklahoma Water Resource Board, 235 F.3d 553, 555
(10th Cir. 2000); Bowers, 472 F.Supp.2d
at 1264-65, this court “inherited the state court's
lack of jurisdiction.” Utah v. Ricks, 2016 WL
6090848 at *2 (D. Utah Oct. 18, 2016). See also
Nord, 377 F.Supp.2d at 949 (state court's
“jurisdictional status carries over to the federal
court”). Accordingly, this case must be dismissed.
IT IS ORDERED as follows:
Defendant's Motion To Dismiss Pursuant to Fed.R.Civ.P.
12(b)(1) [#13], filed May 13, 2019, is granted; and
this action is dismissed for lack of jurisdiction.
 “[#13]” is an example of
the convention I use to identify the docket number assigned
to a specific paper by the court's case management and
electronic case filing system (CM/ECF). I use this convention
throughout this order.
 Even if this action had been filed in
the federal district court initially, it appears eminently
clear the court would have lacked jurisdiction over Mr.
Jones's claims in any event.
See 42 U.S.C. §§ 405(g)
& 405(h) (suit seeking review of a final decision of the
Commissioner must be commenced within sixty days after the
receipt of notice of the right to appeal); 20 ...