                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       FEB 15 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

THE ROMAN CATHOLIC BISHOP OF                    No.   16-55353
MONTEREY,
                                                D.C. No.
                Plaintiff,                      2:15-cv-08065-JFW-RAO

  v.
                                                MEMORANDUM*
SALOMON COTA,

                Defendant,

and

UNITED STATES OF AMERICA,

       Real-party-in-interest-
       Defendant-Appellee,

 v.

SAVE THE VALLEY, LLC,

                Intervenor-Appellant.

                    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.
                               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.


                                         2
      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.


                                          3
      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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