Randal Ricci v. Darrin Salzman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3035
R ANDAL R ICCI,
Plaintiff-Appellant,
v.
D ARRIN SALZMAN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-6993 — Matthew F. Kennelly, Judge.
____________________
A RGUED SEPTEMBER 17, 2020 — D ECIDED OCTOBER 1, 2020
____________________
Before KANNE and HAMILTON, Circuit Judges. *
KANNE , Circuit Judge. This case calls for us to determine
whether the district court properly dismissed the plaintiff’s
amended complaint without prejudice under the doctrine of
derivative jurisdiction even though that complaint invoked
* Circuit Judge Barrett was a member of the panel when this case was
submitted but did not participate in the decision and judgment. The ap-
peal is resolved by a quorum of the panel pursuant to 28 U.S.C. § 46(d).

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2 No. 19-3035
federal jurisdiction. We affirm the district court because the
derivative jurisdiction doctrine barred it from exercising juris-
diction over the case and dismissal without prejudice was the
appropriate result.
I. BACKGROUND
Randal Ricci was awarded custody of his minor daughter
in state-court divorce proceedings.1 Ricci’s daughter receives
supplemental security income from the Social Security Ad-
ministration (“SSA”) and requires a “representative payee” to
receive and manage her benefits. For nearly three years, Ricci
served as representative payee. In August 2018, however, De-
fendants—SSA employees—removed Ricci as representative
payee because they determined that he was not his daughter’s
legal guardian.
Ricci filed a pro se action in state court requesting that the
court require Defendants to reinstate him as representative
payee. Defendants, as federal employees, removed the case to
federal court under the federal officer removal statute, 28
U.S.C. § 1442. Then, Defendants moved to dismiss the action
under the doctrine of derivative jurisdiction. They argued that
the state court had no jurisdiction over the case when it was
originally filed, and therefore, the federal court could not hear
the case after it was removed. Ricci, this time with counsel,
amended his complaint to invoke federal jurisdiction under
28 U.S.C. § 1361, which vests federal courts with jurisdiction
over mandamus actions against federal employees. Defend-
ants again moved to dismiss under the derivative jurisdiction
1 These facts are drawn from Ricci’s amended complaint and are taken
as true for purposes of this appeal. Gomez v. Randle, 680 F.3d 859, 861 (7th
Cir. 2012).

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No. 19-3035 3
doctrine. Ricci responded that his amended complaint cured
any procedural defect in removal caused by the doctrine.
The district court agreed with Defendants, granted their
motion, and dismissed the amended complaint without prej-
udice under the derivative jurisdiction doctrine. The court
also instructed Ricci to initiate a new federal action if he
wished to pursue his claims. Ricci filed this appeal instead.
II. A NALYSIS
The district court’s dismissal of Ricci’s amended com-
plaint under the derivative jurisdiction doctrine presents a
question of law that we review de novo. See Slaney v. Int’l Am-
ateur Athletic Fed’n, 244 F.3d 580, 588 (7th Cir. 2001); Lopez v.
Sentrillon Corp., 749 F.3d 347, 350 (5th Cir. 2014) (reviewing
dismissal under the derivative jurisdiction doctrine de novo).
Ricci makes two arguments on appeal. First, he argues that
the state court did have jurisdiction over his initial action, so
the derivative jurisdiction doctrine poses no bar to his case
continuing in federal court. Second, Ricci argues that even if
the state court did not have jurisdiction over his initial action,
this court has twice signaled that a plaintiff may cure a defect
in removal created by the derivative jurisdiction doctrine
simply by filing an amended complaint that invokes federal
jurisdiction. See Hammer v. U.S. Dep’t of Health & Human Servs.,
905 F.3d 517, 535 (7th Cir. 2018); Rodas v. Seidlin, 656 F.3d 610,
629 (7th Cir. 2011). And because Ricci’s amended complaint
invoked federal mandamus jurisdiction, he argues that it
should not have been dismissed.
Ricci’s first argument can be dealt with fairly quickly be-
cause he never made it in the district court. In response to De-
fendants’ motion to dismiss, Ricci argued only that our Rodas

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4 No. 19-3035
and Hammer decisions allowed him to avoid the derivative ju-
risdiction bar because his amended complaint invoked fed-
eral mandamus jurisdiction. He did not argue that the state
court had jurisdiction in the first place. In fact, Ricci explained
to this court in his reply brief that he “did not argue about the
state[] court’s jurisdiction because it was not material to his
theory of the case.” That, he argues, was “neither accident nor
neglect and is not a forfeiture.” But it is waiver; Ricci made “a
deliberate decision not to present a ground for relief that
might be available in the law.” United States v. Cook, 406 F.3d
485, 487 (7th Cir. 2005). Because Ricci did not make his state-
court-jurisdiction argument in the district court “and instead
raised it for the first time in [his] appellate brief, [he has]
waived it for purposes of this appeal.” Henry v. Hulett, 969
F.3d 769, 786 (7th Cir. 2020) (en banc). 2
Ricci also contends that an appellant may raise on appeal
any issue decided by the district court. But this argument
2 Defendants, too, confuse waiver with forfeiture. Whereas waiver “is
a deliberate decision not to present a ground for relief that might be avail-
able in the law,” Cook, 406 F.3d at 487, “[f]orfeiture occurs when a party
fails to make an argument because of accident or neglect,” Sansone v. Bren-
nan, 917 F.3d 975, 983 (7th Cir. 2019). We have tried to be careful in recent
years to distinguish the two. See Henry, 969 F.3d at 786 (“Waiver and for-
feiture are distinct legal concepts.”); Reed v. Columbia St. Mary’s Hosp., 915
F.3d 473, 478 (7th Cir. 2019) (“Some of our opinions use the terms waiver
and forfeiture interchangeably, but … we need to pay attention to the dif-
ference.”). The difference often matters because we can sometimes review
forfeited issues for plain error, but we can’t review waived issues at all.
Henry, 969 F.3d at 786. It isn’t so important here, though, because we
wouldn’t review the issue either way. Id. (explaining the “rare situa-
tion[s]” in which we review forfeited arguments in civil cases).

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No. 19-3035 5
similarly falls victim to Ricci’s own briefing, which stresses
that the district court entered dismissal “without discussing
whether the state court had jurisdiction over any portion of
the controversy” and “[w]ithout resolving this question.” We
decline to address an issue that Ricci concedes was not fully
argued, discussed, or resolved in the district court. We there-
fore assume without deciding that the state court did not have
subject-matter jurisdiction over Ricci’s claims for injunctive
relief against these federal officials. Cf. 42 U.S.C. § 405(g) (ju-
dicial review under the Social Security Act is available only in
U.S. district courts).
Moving on to Ricci’s second argument on appeal: that the
district court should not have dismissed his amended com-
plaint without prejudice under the derivative jurisdiction
doctrine. Traditionally stated, this doctrine provides that “if
the state court lacks jurisdiction over the subject matter or the
parties, the federal court acquires none upon removal, even
though the federal court would have had jurisdiction if the
suit had originated there.” Arizona v. Manypenny, 451 U.S. 232,
242 n.17 (1981) (citing, among other cases, Minnesota v. United
States, 305 U.S. 382, 389 (1939)). We have since clarified that
this doctrine “is best understood as a procedural bar to the
exercise of federal judicial power. That is, the doctrine creates
a procedural defect in removal, but is not an essential ingre-
dient to federal subject matter jurisdiction.” Rodas, 656 F.3d at
619. As such, it can be forfeited if not timely raised before the
trial court. Id. at 623, 629. Moreover, “[t]he doctrine provides
a background rule against which all of the removal statutes
operate; it applies unless abrogated.” Id. at 618.
Congress has abrogated the doctrine with respect to the
general removal statute, 28 U.S.C. § 1441(f) (“The court to

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6 No. 19-3035
which a civil action is removed under this section is not pre-
cluded from hearing and determining any claim in such civil
action because the State court from which such civil action is
removed did not have jurisdiction over that claim.” (emphasis
added)). But it has not abrogated the doctrine with respect to
the federal officer removal statute at issue here, 28 U.S.C.
§ 1442. Rodas, 656 F.3d at 616 (“[T]he doctrine of derivative ju-
risdiction has been abrogated in the general removal statute
… but not the federal officer removal statute.”); see also Lopez,
749 F.3d at 350 (“[A]ny ambiguity about the endurance of the
derivative action doctrine as applied to removals under § 1442
was eliminated when Congress amended § 1441 in 2002 to
add the words ‘removed under this section.’”). On that much,
the parties seem to agree.
Ricci argues that we have nevertheless approved a proce-
dure that permits a plaintiff to bypass the derivative jurisdic-
tion bar by filing an amended complaint that properly in-
vokes federal jurisdiction. He points to language from Rodas
and Hammer. We think Ricci puts too much stock in these
cases.
It’s true that in Rodas we stated “that any defect in removal
created by the doctrine of derivative jurisdiction would be
cured if [the plaintiff] simply filed an amended complaint.”
656 F.3d at 629. But as the district court recognized, Rodas only
held that because the doctrine is not strictly jurisdictional, it
can be waived or forfeited and must be asserted before a rul-
ing on the merits. Id. at 623. The Rodas defendants did not
raise their derivative jurisdiction argument until after judg-
ment was entered, so it was forfeited and the court was not
barred from exercising its jurisdiction. Id. at 614, 623–24. Ac-
cordingly, courts in this circuit have widely recognized that

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No. 19-3035 7
the “Rodas exception” applies “only in the context of a case
where the dispute has proceeded to a disposition on the mer-
its.” Pelto v. Office of Reg’l Chief Counsel, No. 11-CV-815-WMC,
2013 WL 5295678, at *3 (W.D. Wis. Sept. 19, 2013); accord Brown
v. Hosp. “A”, No. 2:17-CV-125, 2017 WL 5989717, at *2 (N.D.
Ind. Dec. 4, 2017); Abu-Humos v. First Merit Bank, No. 15-CV-
6961, 2015 WL 7710374, at *1 n.1 (N.D. Ill. Nov. 30, 2015). Here,
Defendants asserted the doctrine in their very first responsive
pleading in federal court, and no substantive issues have been
decided. So Rodas is inapposite.
Ricci then points to similar language in Hammer. There, af-
ter the case was removed from state court, the Department of
Health and Human Services (“HHS”) timely moved for dis-
missal under the derivative jurisdiction doctrine, and the
plaintiff moved to remand the case back to state court. Ham-
mer, 905 F.3d at 524. The district court remanded the case for
lack of removal jurisdiction under § 1442, but we concluded
on appeal that the district court did have removal jurisdiction
and “should not have remanded this case to state court.” Id.
at 535.
We then turned to “the appropriate remedy.” Id. HHS
wanted outright dismissal, but we declined “because the mer-
its of HHS’s defense ha[d] not been resolved” and “[t]he dis-
trict court, in the first instance, must evaluate … the propriety
of dismissal under the doctrine of derivative jurisdiction.” Id.
We then stated—and this is what Ricci clings to—that the
plaintiff “could, if she so chooses, amend her motion for de-
claratory relief to constitute a proper complaint that engages
with the federal court’s jurisdiction. Such a modification
would cut out the intermediate step between dismissal of this
case and the filing of a new one … .” Id.

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8 No. 19-3035
We do not believe that in Hammer we “attempt[ed] to ab-
rogate” the derivative jurisdiction doctrine “in a few sen-
tences of dicta.” Citizens for Appropriate Rural Roads v. Foxx, 815
F.3d 1068, 1079 (7th Cir. 2016) (quoting New York v. Army Corps
of Eng’rs, 896 F. Supp. 2d 180, 196 (E.D.N.Y. 2012)). And dicta
it was, so we are free to depart from it. Wilder v. Apfel, 153 F.3d
799, 803 (7th Cir. 1998) (“Dicta are the parts of an opinion that
are not binding on a subsequent court … .”). More fundamen-
tally, “it rests with Congress to determine not only whether the
United States may be sued, but in what courts the suit may be
brought.” Minnesota, 305 U.S. at 388 (emphasis added). Con-
gress has not abrogated the doctrine with respect to removals
under § 1442, and neither have we.
Nor did we hamstring the doctrine by fashioning a new
rule permitting plaintiffs to sidestep it with an amended com-
plaint. Hammer relied only on Rodas for its suggestion that the
plaintiff could avoid the derivative jurisdiction bar by amend-
ing her complaint. Hammer, 905 F.3d at 535 (citing Rodas, 656
F.3d at 625). But again, the Rodas defendants forfeited the de-
rivative jurisdiction argument. And in Rodas, we made clear
that even though the doctrine is only a “procedural bar”—and
even though “the justification for the rule is hardly obvi-
ous”—it is nevertheless “binding on us.” Rodas, 656 F.3d at
615. It therefore “remain[s] mandatory. We must apply [it] if
properly invoked.” Walker v. Weatherspoon, 900 F.3d 354, 356
(7th Cir. 2018); see also Eberhart v. United States, 546 U.S. 12, 19
(2005) (holding that non-jurisdictional claim-processing rules
“assure relief to a party properly raising them”); S. Ill. Power
Coop. v. EPA, 863 F.3d 666, 669 n.2 (7th Cir. 2017) (explaining
that a non-jurisdictional rule is nevertheless “mandatory”
where the defendant “invokes its benefit”).

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No. 19-3035 9
When the derivative jurisdiction doctrine is timely raised,
then, it properly results in dismissal without prejudice. This
should come as no surprise, for that is the remedy that district
courts have routinely applied. E.g., Ajabu v. Harvey, No. 18 C
1243, 2018 WL 3586588, at *5–6 (S.D. Ind. July 28, 2018)
(“[U]nder the doctrine of derivative jurisdiction, dismissal
without prejudice is the proper result.”); Brown, 2017 WL
5989717, at *2; Abu-Humos, 2015 WL 7710374, at *1 n.1; Pelto,
2013 WL 5295678, at *3. And it is the remedy that other circuits
have widely affirmed. E.g., Lopez, 749 F.3d at 351; Palmer v.
City Nat. Bank, of W. Va., 498 F.3d 236, 249 (4th Cir. 2007); see
also Rodriguez v. United States, 788 F. App’x 535, 536 (9th Cir.
2019); Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 208,
216 (1st Cir. 1987).
In sum, we hold that when a defendant timely raises the
derivative jurisdiction doctrine, it erects a mandatory bar to
the court’s exercise of federal jurisdiction, and a plaintiff can-
not circumvent that bar merely by filing an amended com-
plaint invoking federal jurisdiction.
We are cognizant, however, of the practical issues that
could arise if a defendant raises the doctrine in a case that’s
far along—say, at summary judgment or on the eve of trial.
What if, by that point, the statutory limitations period has ex-
pired and the plaintiff cannot initiate a new action?
Federal law suggests an answer to this problem. Under 28
U.S.C. § 1447(c), “[a] motion to remand [a] case on the basis of
any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of [a] notice of removal
under section 1446(a).” That the derivative jurisdiction doc-
trine is not jurisdictional but “creates a procedural defect in
removal” therefore “suggests that derivative jurisdiction

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10 No. 19-3035
should ordinarily be raised within 30 days.” Rodas, 656 F.3d
at 629. True, 28 U.S.C. § 1447(c) “by its terms … applies only
to plaintiffs who seek to remand a case.” Id. Nonetheless,
“procedural defects in removal … generally must be raised
within 30 days,” id. at 621, so we think it appropriate to adopt
a similar rule requiring defendants to assert the derivative ju-
risdiction doctrine within 30 days from removal. If raised
within 30 days, it results in dismissal without prejudice. But
after that window passes, it is forfeited and the plaintiff may
proceed.
There is sufficient basis for such a rule. Again, “despite its
perhaps improvident name,” the derivative jurisdiction doc-
trine “is best understood as a procedural bar to the exercise of
federal judicial power.” Id. at 619. It thus causes a defect in
removal “other than lack of subject matter jurisdiction.” 28
U.S.C. § 1447(c). And because “derivative jurisdiction counts
as a procedural defect, not a subject-matter-jurisdiction de-
fect,” “it ‘must [be] made within 30 days’ of … removal.” Fed.
Home Loan Mortg. Corp. v. Gilbert, 656 F. App’x 45, 53 (6th Cir.
2016) (Sutton, J., concurring) (quoting 28 U.S.C. § 1447(c)) (cit-
ing Rodas, 656 F.3d at 621); see also McMahon v. Bunn–O–Matic
Corp., 150 F.3d 651, 653 (7th Cir. 1998) (“[A]ny defect in the
removal process other than the lack of subject-matter jurisdic-
tion must be raised within 30 days or is forfeited.”), abrogated
on other grounds by Kaiser v. Johnson & Johnson, 947 F.3d 996,
1013 (7th Cir. 2020). “In that vein, it seems noteworthy that in
every case we located in which the Supreme Court discussed
the matter of derivative jurisdiction, the matter appears to
have been raised promptly upon removal, prior to adjudica-
tion on the merits.” Rodas, 656 F.3d at 624 (citing cases).

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No. 19-3035 11
And a 30-day rule makes good sense. It puts the onus on
defendants to raise the doctrine in a timely fashion and af-
fords them its full benefit when they do. It also spares plain-
tiffs the misfortune of litigating a case until the eve of judg-
ment, just to be booted from court without the ability to initi-
ate a new action because the limitations period quietly ex-
pired in the meantime.
Finally, nothing in our precedent requires that we permit
future defendants to assert the derivative jurisdiction doctrine
at any point before judgment. We held in Rodas that raising
the doctrine after judgment is entered is clearly too late, but
that is not to say that it would be timely if raised at any point
before then. We have never held that a defendant can string a
plaintiff along until a jury is empaneled only to trigger the de-
rivative jurisdiction bar at the last minute. There would be no
reason for such a rule; after all, the doctrine causes a defect in
removal, so the applicability of the doctrine is apparent from
that moment, and 30 days is ample time to raise it.
Of course, none of that rescues Ricci’s case. Defendants
raised the derivative jurisdiction doctrine one week after re-
moval and again three weeks after Ricci filed his amended
complaint. That’s exactly how it should be done.
III. CONCLUSION
We therefore AFFIRM the district court’s dismissal of
Ricci’s amended complaint without prejudice. We, like the
district court, remind Ricci that if he wishes to pursue his
claims, the doors to the federal courthouse are open to him if
he files a new complaint.

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