State of Nebraska, Ex Rel., Dep't of Soc. Servs. Internal Revenue Serv. v. David A. Bentson, 146 F.3d 676 (9th Cir. 1998). · Go Syfert
State of Nebraska, Ex Rel., Dep't of Soc. Servs. Internal Revenue Serv. v. David A. Bentson, 146 F.3d 676 (9th Cir. 1998). Cases Citing This Book View Copy Cite
“a defendant's power to remove a case to federal court is independent of the federal court's power to hear it.... once a case is properly removed, a district court has the authority to decide whether it has subject matter jurisdiction over the claims.”
48 citation events (35 in the last 25 years) across 10 distinct courts.
Strongest positive: Linda Thompson v. Army and Air Force Exchange Service (ca7, 2025-01-08)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Linda Thompson v. Army and Air Force Exchange Service
7th Cir. · 2025 · quote attribution · 1 verbatim quote · confidence high
a defendant's power to remove a case to federal court is independent of the federal court's power to hear it.
examined Cited as authority (verbatim quote) Moreland v. Van Buren GMC (3×) also: Cited as authority (rule)
E.D.N.Y · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
a defendant's power to remove a case to federal court is independent of the federal court's power to hear it.... once a case is properly removed, a district court has the authority to decide whether it has subject matter jurisdiction over the claims.
discussed Cited as authority (quoted) State Engineer of Nevada v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians (2×) also: Cited as authority (rule)
D. Nev. · 1999 · quote attribution · 1 verbatim quote · confidence low
once a case is properly removed, a district court has the authority to decide whether it has subject matter jurisdiction over the claims.
discussed Cited as authority (rule) Simpson v. Ohana Military Communities, LLC
D. Haw. · 2024 · confidence medium
Dept. of Social Services v. Bentson, 146 F.3d 676, 679-80 (9th Cir. 1998) (noting the inclusion of a federal agency gave rise to the case’s removability, and the dismissal of the agency destroyed subject matter jurisdiction, necessitating remand of the remaining claims to state court); see also Kim v. Queen’s Med.
discussed Cited as authority (rule) Vargas v. Freeman CA1/3
Cal. Ct. App. · 2024 · confidence medium
Dept. of Social Services v. Bentson (9th Cir. 1998) 146 F.3d 676, 678 [order dismissing federal defendant, which preceded remand of state law claims to state court, was appealable].) Vargas also contends his proposed amended complaint falls within an exception to claim preclusion for a prior action seeking declaratory relief.
cited Cited as authority (rule) Timothy Demartini v. Michael Demartini
9th Cir. · 2020 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998); Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1315 (9th Cir. 1986).
discussed Cited as authority (rule) Horne v. Internal Revenue Service (2×) also: Cited "see"
9th Cir. · 2016 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir. 1998).
cited Cited as authority (rule) Cox v. United States Department of Agriculture
9th Cir. · 2015 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 679-80 (9th Cir. 1998).
cited Cited as authority (rule) Cabalce v. VSE Corp.
D. Haw. · 2013 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998). .
cited Cited as authority (rule) City of Cookeville, Tennessee v. Upper Cumberland Electric Membership Corporation
6th Cir. · 2007 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir.1998) (express deprivation of subject matter jurisdiction under 26 U.S.C. § 6305 ).
cited Cited as authority (rule) City of Cookeville v. Upper Cumberland Electric Membership Corp.
6th Cir. · 2007 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir.1998) (express deprivation of subject matter jurisdiction under 26 U.S.C. § 6305 ).
cited Cited as authority (rule) Lively v. Wild Oats Markets
9th Cir. · 2006 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998); United States v. Peninsula Commc’ns., Inc., 287 F.3d 832, 836 (9th Cir. 2002).
cited Cited as authority (rule) Emma C. Lively v. Wild Oats Markets, Inc., a Delaware Corporation
9th Cir. · 2006 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998); United States v. Peninsula Commc’ns., Inc., 287 F.3d 832, 836 (9th Cir.2002).
cited Cited as authority (rule) Jagdishbhai and Hansaben Patel v. Del Taco, Inc.
9th Cir. · 2006 · confidence medium
Dep’t of Social Services v. Bentson, 146 F.3d 676, 678 (9th Cir.1998).
discussed Cited as authority (rule) Patel v. Del Taco, Inc.
9th Cir. · 2006 · confidence medium
Dep’t of Social Services v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998). [3] A petition for removal under § 1443(1) must satisfy the two-part test articulated by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-92, 794-804 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824-28 (1966).
cited Cited as authority (rule) Adam v. Hawaii
9th Cir. · 2005 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998), and we affirm.
cited Cited as authority (rule) Inland Valley Development Agency v. Patel
9th Cir. · 2004 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998), and we affirm.
discussed Cited as authority (rule) Special Investments Inc. v. Aero Air Inc.
9th Cir. · 2004 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir.1998); Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986). 3 Of course, a district court can decide an issue of personal jurisdiction before it decides an issue of subject matter jurisdiction, or, at least, may do so where that will dispose of the case See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 , 119 S.Ct. 1563, 1572 , 143 L.Ed.2d 760 (1999).
cited Cited as authority (rule) Special Investments Inc. v. Aero Air Inc.
9th Cir. · 2004 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir.1998); Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986). .
discussed Cited as authority (rule) Isaacson v. Dow Chemical Co.
unknown court · 2004 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998); Dalrymple v. Grand River Dam Auth., 145 F.3d 1180 , 1184 n. 6 (10th Cir.1998) (deeming the amendment a legislative reversal of International Primate).
cited Cited as authority (rule) Stock v. Commissioner
9th Cir. · 2003 · confidence medium
We review de novo, Nebraska v. Bentson, 146 F.3d 676, 678 (9th Cir.1998), and we affirm.
cited Cited as authority (rule) State Engineer of Nevada v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians
9th Cir. · 2003 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 679 (9th Cir.1998) (“A defendant’s power to remove a case to federal court is independent of the federal court’s power to hear it.
cited Cited as authority (rule) State Engineer, of the State of Nevada Water Commissioners, of the Sixth Judicial District Court v. South Fork Band of the Te-Moak Tribe of Western Sho-Shone Indians of Nevada Marvin McDade in His Capacity as Chairman of the South Fork Band Council, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, State Engineer, of the State of Nevada Water Commissioners, of the Sixth Judicial District Court, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada Marvin McDade in His Capacity as Chairman of the South Fork Band Council, United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, State Engineer, of the State of Nevada Water Commissioners, of the Sixth Judicial District Court, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada Marvin McDade in His Capacity as Chairman of the South Fork Band Council, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, State Engineer, of the State of Nevada Water Commissioners, of the Sixth Judicial District Court, and Pershing County Water Conservation District, Petitioner-Intervenor v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada Marvin McDade in His Capacity as Chairman of the South Fork Band Council United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada
6th Cir. · 2003 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 679 (9th Cir.1998) ("A defendant's power to remove a case to federal court is independent of the federal court's power to hear it.
cited Cited as authority (rule) WFS Financial, Inc. v. Khashan
9th Cir. · 2003 · confidence medium
Servs. v. Bentson 146 F.3d 676, 678 (9th Cir.1998), and order awarding attorneys’ fees for an abuse of discretion, Dahl v. Rosenfeld, 316 F.3d 1074, 1077 (9th Cir.2003).
cited Cited as authority (rule) Hawaii v. Brown
9th Cir. · 2002 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998), and for an abuse of discretion the denial of a motion for reconsideration, Sch.
cited Cited as authority (rule) Hawaii v. Jim
9th Cir. · 2002 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998), and we affirm.
cited Cited as authority (rule) Carpenter v. Commissioner
9th Cir. · 2002 · confidence medium
See 28 U.S.C. § 1442 (a)(1); Nebraska v. Bentson, 146 F.3d 676, 678 (9th Cir.1998); Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1034 (9th Cir.1985).
discussed Cited as authority (rule) Humetrix, Inc., a California Corporation Bettina Experton, Doctor v. Gemplus S.C.A., a French Corporation Guy Guistini, and Marc Lassus Bruno Lassus, Doctor Inovaction S.A.R.L., a French Corporation Pierre Andrei Max Micoud, Doctor, Humetrix, Inc., a California Corporation, and Bettina Experton, Doctor v. Gemplus S.C.A., a French Corporation Marc Lassus Bruno Lassus, Doctor Guy Guistini Pierre Andrei Max Micoud, Doctor, and Inovaction S.A.R.L., a French Corporation
9th Cir. · 2001 · confidence medium
Serv. v. Bentson, 146 F.3d 676, 678 (1998) (noting that removal statute "regulates jurisdiction and procedure" and therefore may be applied "to cases pending at the time of its enactment"). 61 Where, as here, Congress makes clear its intent to apply an amendment of a procedural provision retroactively, courts must honor and effectuate that intention.
discussed Cited as authority (rule) Humetrix, Inc. v. Gemplus S.C.A.
9th Cir. · 2001 · confidence medium
Servs. v. Bentson, 146 F.3d 676, 678 (1998) (noting that removal statute “regulates jurisdiction and procedure” and therefore may be applied “to cases pending at the time of its enactment”).
discussed Cited as authority (rule) California ex rel. Sacramento Metropolitan Air Quality Management District v. United States
9th Cir. · 2000 · confidence medium
Dep’t of Social Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir.1998) (holding that the federal removal statute allows a covered person to remove an action to district court based on the defense of sovereign immunity).
discussed Cited as authority (rule) PEOPLE OF THE STATE OF CALIFORNIA v. United States
9th Cir. · 2000 · confidence medium
Dep't of Social Servs. v. Bentson, 146 F.3d 676, 678 (9th Cir. 1998) (holding that the federal removal statute allows a covered person to remove an action to district court based on the defense of sovereign immunity).
discussed Cited as authority (rule) Golden Eagle Ins. Corp. v. Allied Technology Group
C.D. Cal. · 1999 · confidence medium
Trust, 463 U.S. 1 , 24 n. 27, 103 S.Ct. 2841 , 2854 n. 27, 77 L.Ed.2d 420 (1983) (noting that dismissal of the claim is a district court’s appropriate course of action where the doctrine of derivative jurisdiction prevents it from exercising subject matter jurisdiction over it); Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir.1998) (noting that district court “simply gave effect to the jurisdictional realities” when it dismissed claim over which it lacked subject matter jurisdiction because of the doctrine of derivative jurisdiction).
discussed Cited "see" United Surety & Indemnity Co. v. Yabucoa Volunteers of America Elderly Housing, Inc.
D.P.R. · 2015 · signal: see · confidence high
Docket #1; see State of Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir. 1998) (explaining that Section 1442 was amended in 1996 to expressly allow for removal by federal agencies).
cited Cited "see" California v. NRG Energy Inc.
9th Cir. · 2004 · signal: see · confidence high
See Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir.1998).
Retrieving the full opinion text from the archive…
STATE OF NEBRASKA, EX REL., DEPARTMENT OF SOCIAL SERVICES; Internal Revenue Service, Plaintiffs-Appellees,
v.
David A. BENTSON, Defendant-Appellant
Donald G. Moats, Law Offices of Donald G. Moats, Lafayette, California, for appellant., Teresa T. Milton, Assistant Attorney General, Washington, DC, for appellee.
Lay, Kozinski, Nelson.
Cited by 38 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 72%
Citer courts: D. Nevada (1)
T.G. NELSON, Circuit Judge:

Defendant David A. Bentson appeals the district court’s order dismissing the Internal Revenue Service (“IRS”) as a party and remanding to state court his action seeking to enjoin the assessment and collection of alleged past-due child support payments. Bentson contends that the district court erred first by exercising removal jurisdiction and second by dismissing the IRS as a party prior to remanding the ease. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

In 1986, the State of Nebraska (“the State”) filed an action against David Bentson in' the Superior Court of Contra Costa County, California, seeking to collect some unpaid child support payments which had been assigned to it. The court entered an order directing Bentson to pay $9,290 to the State. A satisfaction of that judgment was entered in 1992.

The State then petitioned the United States Secretary of Health, Education, and Welfare, under the federal Social Security Act, 42 U.S.C. § 452(b), to certify additional child support arrearages, previously denied by the California court, to the IRS for collection. This petition was granted. Accordingly, the IRS notified Bentson that it had initiated collection proceedings against him and subsequently served him with various notices of intention to levy before filing a lien against .his property in Contra Costa County.

[*678] Bentson countered by obtaining a San Francisco Superior Court judgment permanently enjoining the State from collecting the additional payments. The State refused to comply.- Consequently, the Superior Court scheduled a civil contempt proceeding against the State and included the IRS as the State’s collection agent. Before the date of the hearing, the IRS removed the case to the United States District Court for the Northern District of California, pursuant to 28 U.S.C. § 1442(a)(1). Bentson then filed a motion to remand the case back to state court, arguing that the removal was improper under 26 U.S.C. § 6305(b), which generally prohibits federal court jurisdiction over matters concerning the IRS’s collection of child support payments. The district court disagreed with Bentson and dismissed the IRS from the action before remanding the case back to state court. This timely appeal followed.

II.

The existence of subject matter jurisdiction is a question of law subject to de novo review. Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997). A district court’s decision to remand a removed case is also reviewed de novo. Cranford Country Homeowners Ass’n v. Delta Sav. & Loan, 77 F.3d 1163, 1165 (9th Cir.1996).

III.

As a threshold matter, we must determine whether we can even consider Bent-son’s objections to the district court’s remand order, because, under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal.... ” However, notwithstanding that section, because the dismissal of the IRS analytically preceded the remand order, we may review the validity of that dismissal even though the remand itself is immune from appellate review. See Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986).

IV.

Next, we must consider whether the case was removable in the first instance. Under the removal statute in effect when this case was filed, an agency of the United States, as opposed to a federal officer, could not remove a case from state to federal court. See 28 U.S.C. § 1442(a)(1) (1991); International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 79, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991). However, Congress subsequently enacted the Federal Courts Improvement Act of 1996, Pub.L. 104-317, 110 Stat. 3847, 3850, which amended the removal statute to expressly allow for removal by federal agencies. See 28 U.S.C. § 1442(a)(1) (1997) (stating that a civil action brought against “[t]he United States or any agency thereof’ is removable). Because § 1442 is a statute which regulates jurisdiction and procedure, the new law applies to cases pending at the time of its enactment. See Landgraf v. USI Film Prods., 511 U.S. 244, 274-75, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Thus, since this case was brought against an agency of the United States, it was removable under § 1442 as amended. 28 U.S.C. § 1442(a)(1).

V.

Having determined both the scope of our appellate review and the propriety of the case’s removal under the plain text of the removal statute, we now must address the relationship among the three statutory commands which give rise to this appeal: 28 •U.S.C. § 1442(a)(1) (“ § 1442”), 26 U.S.C. § 6305(b) (“ § 6305”), and 28 U.S.C. § 1447(c) (“ § 1447”). As discussed above, § 1442 states that civil actions brought against federal agencies in state court are removable. However, § 6305 expressly deprives the federal courts of jurisdiction over actions brought to restrain the assessment and collection of an alleged past-due child support obligation, and § 1447 provides that “[i]f at any time [after removal and] before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”

The IRS removed this action to the district court, and Bentson moved to remand. The court held that removal was proper under § 1442, yet, under § 6305, subject matter[*679] jurisdiction was lacking over the claims against the IRS. It therefore dismissed the IRS as a party. That dismissal destroyed the court’s subject matter jurisdiction over the entire ease, as the presence of a federal agency was what gave rise to its initial re-movability. Accordingly, the court remanded the action back to the state' court, pursuant to § 1447.

Bentson argues that, by depriving federal courts of subject matter jurisdiction over these types of claims, § 6305 has effectively rendered the case non-removable. We disagree. A defendant’s power to remove a case to federal court is independent of the federal court’s power to hear it. These are analytically distinct inquiries and should not be confused. Once a ease is properly removed, a district court has the authority to decide whether it has subject matter jurisdiction over the claims. See 28 U.S.C. § 1447(c) (“If at any time [after removal and] before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

Moreover, if the action had been filed directly in federal court, the district court would have the authority to decide whether it had subject matter jurisdiction over the case. Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir.1996). The fact that the case was removed to the district court, rather than originally filed there, does not change the analysis. Removal of this case was proper under the plain language of § 1442, giving the district court the authority to determine whether it had subject matter jurisdiction over the claim against the IRS.

It did not, because § 6305 expressly deprives the federal courts of such jurisdiction. Seizing upon this apparent lack of judicial power, Bentson argues that, pursuant to the command of § 1447(c), § 6305 required the district court to immediately remand the case. Thus, the argument continues, the pri- or dismissal of the IRS as a party was not within the district court’s power. Under § 1447, he argues, all the court could do was remand the entire case. Once again, we disagree.

In addition to depriving federal courts of jurisdiction over these types of claims, § 6305 additionally provides that nothing in that section should be construed to preclude remedies against the state in a state court or before an administrative agency. This language implies the absence of a remedy against federal agencies in any court, be it federal or state. Section 6305 was enacted against the backdrop of the well-established sovereign immunity of the United States from suit absent a waiver. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (“The United States ... is immune from suit save as it consents to be sued.”); Pub.L. 93-647,. § 101(b)(1) (adding § 6305 in 1975). Therefore, by enacting § 6305, Congress intended that neither state nor federal courts would have jurisdiction over claims seeking to restrain an agency of the, United States in this type of collection effort.

Thus, the California Superior Court erroneously included the IRS in its contempt proceeding. Without an express waiver of the IRS’s sovereign immunity .as an agency of the United States, the state court lacked jurisdiction. Once the case was removed, the parties and their claims were appropriately before the district court under the removal statute. The district court then had before it a party, the IRS, over which neither it nor the state court could have jurisdiction. Moreover, the district court did not have jurisdiction to decide the ease as to the State. By dismissing the IRS as a party prior to remand, the district court simply gave effect to the jurisdictional realities of the situation before it. This was an appropriate exercise of the district court’s authority, and we decline to overturn it.

CONCLUSION

The case was properly removed, giving the district court the- authority to consider the question of subject matter jurisdiction. Once the court determined that it lacked subject matter jurisdiction over the claims against the IRS, it properly dismissed those claims before remanding the remainder of the case to state court. The- district court’s disposi[*680] tion of the case was proper and is therefore AFFIRMED.

AFFIRMED.