The opinion
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3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 SAN JOSE DIVISION
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7 KHAN SADOZAI, Case No. 21-cv-01409-BLF
8 Plaintiff,
ORDER GRANTING MOTION TO
9 v. DISMISS WITHOUT PREJUDICE
10 DEFENSE LANGUAGE INSTITUTE, [Re: ECF No. 11]
11 Defendant.
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13 Before the Court is Defendant Defense Language Institute’s motion to dismiss Plaintiff
14 Khan Sadozai’s complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff
15 was employed as an assistant professor by Defendant, which is part of the U.S. Army.
16 ECF No. 1-1 at 3. Plaintiff alleges that Defendant subjected him to employment discrimination due
17 to his national, tribal, and regional origins, as well as his dialect and religion. Id. at 5-6. Plaintiff
18 asserts (1) an unspecified intentional tort claim including for “Emotional Distress damages” and
19 claims under (2) Title VII; (3) the No FEAR Act; and (4) the California Fair Employment and
20 Housing Act. Id. at 3-4.
21 Plaintiff filed his complaint in California state court on November 24, 2020.
22 See ECF No. 1-1. The case was removed to federal court on February 26, 2021. See ECF No. 1 ¶ 1.
23 Defendant filed its Motion to Dismiss on April 12, 2021. See ECF No. 11 (“Mot.”). Plaintiff filed
24 an Opposition on June 13, 2021. See ECF No. 16. Defendant filed a Reply on June 17, 2021.
25 See ECF No. 17. The Court held a hearing on the Motion on October 7, 2021.
26 I. LEGAL STANDARD
27 A party may challenge the Court’s subject matter jurisdiction by bringing a motion to dismiss
1 or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack,
2 the movant asserts that the lack of subject matter jurisdiction is apparent from the face of the
3 complaint. Id.
4 II. DISCUSSION
5 This case was removed from state court under 28 U.S.C. § 1442. See ECF No. 1 at 1.
6 Plaintiff argues removal under this statute was not proper because it applies only to cases against
7 federal officers—not agencies. Opp. at 2-3. But the text of the statute unambiguously provides
8 otherwise. 28 U.S.C. § 1442 (allowing removal of a case against “[t]he United States or any agency
9 thereof”) (emphasis added). Under the derivative jurisdiction doctrine, federal courts only have
10 jurisdiction over cases removed pursuant to 28 U.S.C. § 1442 if the state court had jurisdiction in
11 the first place. See In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997); FBI v.
12 Super. Ct. of Cal., No. C-07-01876 PJH (JCS), 507 F.Supp.2d 1082, 1091-92 (N.D. Cal.
13 Aug. 22, 2007). The derivative jurisdiction requirement applies to cases removed under
14 28 U.S.C. § 1442 that could have been (but were not) removed under 28 U.S.C. § 1441, which has
15 no derivative jurisdiction requirement. See FBI, 507 F.Supp.2d at 1090-91; DeJohn v. USDA, 2017
16 WL 5900047, at *3 n.2 (E.D. Cal. Nov. 30, 2017) (“[T]he court is unaware of any authority allowing
17 it to construe this case as being removed under a different statute than the one which defendant
18 chose to invoke.”); Munshower v. City of Lodi, 2016 WL 6875905, at *2 (E.D. Cal. Nov. 22, 2016).
19 The Court finds that the state court did not have jurisdiction over any of Plaintiff’s claims.
20 Sovereign immunity bars Plaintiff’s state law claims. See Brown v. GSA, 425 U.S. 820, 835 (1976).
21 Title VII and tort claims against federal employees can only be brought in federal court.
22 28 U.S.C. § 1346(b)(1); Bullock v. Napolitano, 666 F.3d 281, 285-86 (4th Cir. 2012). And the
23 No FEAR Act provides no private cause of action. See Moore v. Grundmann,
24 No. 11-cv-1570-GPC-WMC, 2013 WL 2177775, at *7 (S.D. Cal. May 20, 2013) (citing Glaude v.
25 U.S., 248 Fed. App’x. 175, 177 (Fed. Cir. 2007).)
26 Based on the state court’s lack of jurisdiction, this Court does not have subject matter
27 jurisdiction over any of Plaintiff’s claims, because it lacks derivative jurisdiction required for cases
1 briefed by the parties. See Echevarria v. Aerotek, Inc., 814 Fed.Appx. 321, 322 (9th Cir. 2020).
2 || I. ORDER
3 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss pursuant to
4 Rule 12(b)(1). Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. If Plaintiff chooses
5 to refile his case in federal court, the Court advises Plaintiff to address any deficiencies in its
6 complaint that Defendant identified in its briefing.
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8 Dated: October 7, 2021 kom Lh han tn
9 NM
BETH LABSON FREEMAN
10 United States District Judge
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