Childs v. San Diego Family Housing LLC

JEFFREY T. MILLER, United States District Judge

Christian Ballmer Clark, Katherine Elaine Cervantes, Lenden Franklin Webb, Webb Law Group, APC, San Diego, CA, for Plaintiff Lena Childs.

Christian Ballmer Clark, Lenden Franklin Webb, Webb Law Group, APC, San Diego, CA, for Plaintiffs Donald Childs, Minor Child.

Kristin Nell Reyna, Timothy Alexander Hanna, Gordon Rees Scully Mansukhani, LLP, San Diego, CA, for Defendants San Diego Family Housing LLC, Lincoln Military Property Management LP.

Christina Ashley Matian, Vikas Nagpal, Bremer Whyte Brown & O'Meara, LLP, San Diego, CA, for Defendant Indepth Corporation.

ORDER RE: SUBJECT MATTER JURISDICTION

JEFFREY T. MILLER, United States District Judge.

Presently before the court is the United States and Defendants San Diego Family Housing LLC and Lincoln Military Property Management LP's Supplemental Briefs on the question of whether the court possesses subject matter jurisdiction over this dispute. (Doc. Nos. 138; 140; 144; 146). Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for resolution without oral argument. For the reasons set forth below, the court finds it lacks subject matter jurisdiction and REMANDS this action to San Diego Superior Court.

BACKGROUND

The instant action arises from allegations of mold and other water-intrusion issues occurring on military housing property.

On August 8, 2016, Plaintiffs Donald and Lena Childs, with their minor children,

leased a dwelling at 1333 Saipan Road, Coronado, CA ("the Saipan Property"). (Doc. Nos. 1-3 at ¶¶ 18-19, 21; 69 at 6; 128-4 at 2). The Saipan Property is located in Silver Strand I, within the boundaries of Naval Amphibious Base Coronado ("NAB Coronado"). (Doc. Nos. 1 at ¶ 9; 69 at 6; 128-4 at 2).

On or about August 1, 2001, the United States Navy ("Navy") and Lincoln/Clark San Diego, LLC entered into an Operating Agreement to form Defendant San Diego Family Housing LLC ("SDFH"). (Doc. No. 1 at ¶ 15). SDFH is a public-private venture ("PPV") formed under the Military Housing Privatization Initiative ("MHPI") that operates and manages the Saipan Property. (Doc. No. 128-3 at ¶ 2). Under the MHPI, branches of the Armed Forces can establish PPVs with private companies to operate and manage housing on military property. Id. at ¶ 3. SDFH, in turn, contracted with Defendant Lincoln Military Property Management ("LMPM") to provide property management services. (Doc. Nos. 1-3 at ¶ 9; 69 at 6; 128-3 at ¶ 7).

On May 2, 2019, Plaintiffs filed this suit in San Diego Superior Court. (Doc. No. 1-2). On December 5, 2019, SDFH and LMPM—with Defendant InDepth Corporation's consent—removed the case to this court on the basis of federal enclave, federal agency, and federal officer jurisdiction. (Doc. No. 1 at ¶ 3). The Parties did not dispute, at the time of removal, that the court possessed subject matter jurisdiction over this case because the events alleged in Plaintiffs' Complaint allegedly occurred on a federal enclave. (Doc. No. 34 at 4).

On December 4, 2023, after the case had already progressed for several years, the United States, a non-party, filed a Statement of Interest contending for the first time that the Saipan Property was not within a federal enclave and that the court, therefore, lacked subject matter jurisdiction over this case. (Doc. No. 138 at 4). On December 8, 2023, Defendants SDFH and LMPM filed a response to the United States' Statement. (Doc. No. 140).

On December 13, 2023, the United States filed an ex parte application for leave to file a second supplemental brief on the issue of whether the Saipan Property was located within a federal enclave. (Doc. No. 141). As it was critically important for the court to resolve this question, the court granted the United States' ex parte application —over SDFH and LMPM's objection. (Doc. Nos. 142, 143). Per the court's order, the United States filed a second supplemental brief on December 18, 2023. (Doc. No. 144). On January 5, 2024, SDFH and LMPH filed a response. (Doc. No. 146).

LEGAL STANDARD

"At the core of the federal judicial system is the principle that the federal courts are courts of limited jurisdiction." Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979); Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) ("Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.") (internal quotation marks omitted). Under 28 U.S.C. § 1441(a), a party may remove a claim originating in state court to federal court, only when the claim could have initially been brought in federal court. See 28 U.S.C. § 1441(a) ("Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.").

"The removal statute is strictly construed against removal jurisdiction[.]"

Calif. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "[T]he burden of establishing federal jurisdiction falls to the party invoking the statute." Calif. ex rel. Lockyer, 375 F.3d at 838; see also Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction.").

A federal court must have subject matter jurisdiction to properly adjudicate a dispute. If a court determines it lacks subject matter jurisdiction over a removed action at any stage of the proceedings, it must remand the action. See Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for lack of subject matter jurisdiction "is mandatory, not discretionary."); see 28 U.S.C.S. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").

ANALYSIS I. Evidentiary Objections

At the outset, the court first addresses the various objections SDFH and LMPM lodged to evidence submitted by the United States.

A. Declaration of Lonie K Cyr

In support of its second supplemental brief, the United States submits the declaration of Lonie K. Cyr, a Senior Land Surveyor at Naval Facilities Engineering Systems Command, Southwest ("NAVFAC Southwest"). Declaration of Lonie K. Cyr in Support of the United States' Second Statement of Interest ("Cyr Decl.," Doc. No. 144-1). SDFH and LMPM object to various portions of Mr. Cyr's declaration as being speculative and conclusory, for lack of foundation and personal knowledge, and for making improper legal conclusions. (Doc. No. 146-3 at 2-7). SDFH and LMPM's objections are OVERRULED-IN-PART and SUSTAINED-IN-PART.

"Personal knowledge may be inferred from declarations that concern areas within the declarant's job responsibilities." Silva v. AvalonBay Cmtys., Inc., No. LA CV15-04157 JAK (PLAx), 2015 WL 11422302, at *4 n.1, 2015 U.S. Dist. LEXIS 140673, at *10 n.1 (C.D. Cal. Oct. 8, 2015). Here, Mr. Cyr avers he currently serves as a Senior Land Surveyor at NAVFAC Southwest and has worked at the Cadastral Department at NAVFAC Southwest for seventeen years. Cyr Decl., at ¶ 1. In his current position, Mr. Cyr states he has the "authority and responsibility for managing United States Navy and Marine Corps land interests." Id. Mr. Cyr further avers he reviewed "United States Navy and California State Lands Commission documents" in preparation for his declaration. Id. The above is sufficient to lay a proper foundation and for the court to infer Mr. Cyr possesses relevant personal knowledge as to the United States' acquisition of the various parcels of land comprising NAB Coronado. SDFH and LMPM's objections on these grounds are, therefore, OVERRULED.

To the extent, however, that Mr. Cyr's declaration sets forth legal conclusions as to whether the United States exercises exclusive jurisdiction over the parcel of land on which the Saipan Property now sits, SDFH and LMPM's objections are SUSTAINED. "[A] lay witness cannot offer testimony to establish a legal conclusion."

Lee v. City of Madera, No. CIV F 04-5607 AWI DLB, 2008 WL 5042856 at *4, 2008 U.S. Dist. LEXIS 95438 at *10 (E.D. Cal. Nov. 20, 2008); see e.g., Roosevelt Irrigation Dist. v. United States, No. CV-15-00448-PHX-JJT, 2019 WL 1087939, at *4-5, 2019 U.S. Dist. LEXIS 36530, at *13-14 (D. Ariz. Mar. 7, 2019) (precluding witness from testifying as to the legal conclusion of whether the United States possessed a legal interest in certain property).

B. Parcel Map

In support of its second supplemental brief, the United States also submits a map of NAB Coronado allegedly identifying the boundaries of various parcels of land acquired by the United States—relative to the location of the Saipan Property. (Doc. No. 144-2). As SDFH and LMPM correctly note, the Government provides no indication of this map's origin. (Doc. No. 146-3 at 7-8). Because the court cannot readily determine the accuracy of the information contained in this map—and cannot simply assume this information to be true—it SUSTAINS SDFH and LMPM's objections. See e.g., Malheur Forest Fairness Coal. v. Iron Triangle, Ltd. Liab. Co., No. 2:22-cv-01396-HZ, 699 F.Supp.3d 1086, 1102-03, 2023 U.S. Dist. LEXIS 185203 at *11 (D. Or. Oct. 13, 2023) (declining to take judicial notice of map where court could not assume accuracy of information contained within it).

II. Federal Subject Matter Jurisdiction

The court next turns to the question of whether it possesses subject matter jurisdiction over this case. In their Notice of Removal, SDFH and LMPM invoked the court's federal subject matter jurisdiction on two bases. (Doc. No. 1 at ¶ 3). First, SDFH and LMPM contend Plaintiffs' suit is removable pursuant to 28 U.S.C. § 1331, because the events alleged in Plaintiffs' Complaint occurred on a federal enclave. Id. Second, SDFH and LMPM contend Plaintiffs' suit is removable pursuant to 28 U.S.C. § 1442, because SDFH and LMPM were, at all relevant times, acting under a federal officer, and because SDFH is a federal agency. Id. The court considers each of these alleged bases for subject matter jurisdiction, in turn, below.

A. Federal Enclave Jurisdiction under 28 U.S.C. § 1331

The court first considers whether the Saipan Property is located within the boundaries of a federal enclave, such that the court has federal enclave jurisdiction over this matter. This question, in turn, requires an understanding of the nature of federal jurisdiction over lands acquired by the United States.

i. Overview of Federal Enclave Jurisdiction

A federal enclave is land over which the federal government exercises exclusive legislative jurisdiction. See Paul v. United States, 371 U.S. 245, 263-64, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); United States v. Jenkins, 734 F.2d 1322, 1326 (9th Cir. 1983); see also, e.g., Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1236-37 (10th Cir. 2012); Cabrales v. BAE Sys. San Diego Ship Repair, Inc., No. 21-cv-02122-AJB-DDL, 2023 WL 8458247 at *4, 2023 U.S. Dist. LEXIS 217240 at *15 (S.D. Cal. Dec. 6, 2023); Hillman v. Leixcon Consulting, Inc., No. LA-16-CV-001186, 2016 WL 10988766 at *4, 2016 U.S. Dist. LEXIS 200818 at *9 (C.D. Cal. July 27, 2016). The federal enclave doctrine stems from the Enclave Clause of the Constitution, which grants the federal government power "[t]o exercise exclusive Legislation ... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other

needful Buildings." U.S. Const. art. I, § 8, cl. 17. "'Exclusive' jurisdiction for Enclave Clause purposes is equivalent to the sweeping power that Congress exerts over the District of Columbia, the first subject of the clause." Club One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1151 n.6 (9th Cir. 2020). It "assumes the absence of any interference with the exercise of the functions of the Federal Government ... so as to debar the State from exercising any legislative authority[.]" Silas Mason Co. v. Tax Com. of Wash., 302 U.S. 186, 197, 58 S.Ct. 233, 82 L.Ed. 187 (1937).

In contrast to having exclusive jurisdiction, "the United States may have only a proprietary interest in land." Coso Energy Developers v. Cty. of Inyo, 122 Cal. App. 4th 1512, 1520, 19 Cal.Rptr.3d 669 (2004). "The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the States equally with the property of private individuals." Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995, 29 L.Ed. 264 (1885).

In general, there are two methods by which the federal government may acquire exclusive jurisdiction over lands within a state: "by consensual acquisition of land, or by nonconsensual acquisition followed by the State's subsequent cession of legislative authority over the land." Kleppe v. New Mexico, 426 U.S. 529, 542, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976); see also Silas, 302 U.S. at 197, 58 S.Ct. 233. "Significantly, under either method, the state must agree to the transfer of jurisdiction for it to be valid." United States v. Davis, 726 F.3d 357, 363 (2d Cir. 2013).

In addition, for land acquired by the United States after 1940, the Act of October 9, 1940, 40 U.S.C. § 255 (re-codified as 40 U.S.C. § 3112) applies. See Doe v. Camp Pendleton & Quantico Hous. Ltd. Liab. Co., No. 20-cv-224-GPC-AHG, 2020 WL 1890576 at *4, 2020 U.S. Dist. LEXIS 67104 at *9 (S.D. Cal. Apr. 16, 2020). Under the Act, "United States agencies and authorities may accept exclusive or partial jurisdiction over lands acquired by the United States by filing a notice with the Governor of the state in which the land is located or by taking other similar appropriate action." Adams v. United States, 319 U.S. 312, 313, 63 S.Ct. 1122, 87 L.Ed. 1421 (1943); United States v. Cassidy, 571 F.2d 534, 536 (10th Cir. 1978) ("As to lands acquired by the United States after 1940, it has been held that the United States does not acquire jurisdiction over lands acquired by it unless it gives notice of acceptance.").

Even after the United States accepts exclusive jurisdiction over state land, the federal government may subsequently take steps to reestablish state jurisdiction. Swords v. Kemp, 423 F. Supp. 2d 1031, 1035 (N.D. Cal. 2005) (citing Cal. Gov. Code § 113). Under California Government Code Section 113, the United States does so by first requesting that the state accept such a retrocession in writing. Id. The State Lands Commission must then hold a hearing to determine "whether acceptance of the retrocession is in the best interest of the state" and "certified copies of the Commissions orders or resolutions must be recorded in the office of the county recorder." Id.

ii. Jurisdictional Status of the Saipan Property

With the above principles in mind, the court turns to the question of whether there is sufficient evidence the Saipan Property is located within the boundaries of a federal enclave.

According to the Government, NAB Coronado comprises several different parcels of land acquired between 1941 through 1976. Cyr Decl. at ¶ 3. In 1941, the United

States acquired various parcels of land that make up NAB Coronado—Parcels A through E—in a Civil Condemnation Proceeding, Case No. 120-SD. Cyr. Decl. at ¶ 4; 144-4 at 43-53, 81 (identifying Parcels A through E). Based on the evidence on the record, the United States retroceded any exclusive jurisdiction it may have possessed over Parcels A through E in 1973. (Doc. No. 138-1).

According to the Government, the United States then acquired additional parcels of land making up NAB Coronado—including land where the Saipan Property is now located—in 1955, in a second Civil Condemnation proceeding, Case No. 1802-SD. Cyr. Decl. at ¶ 6. The action further consolidated this newly acquired land with Parcels A through E to create Parcel G. Id. There is no evidence on the record that the United States accepted exclusive jurisdiction of these additional parcels of land by filing a notice of acceptance or taking other similar appropriate action. Id. at ¶¶ 6, 8. For these reasons, the Government contends the United States possesses only a proprietary interest in the land upon which the Saipan Property sits. (Doc. No. 144 at 6-7).

According to SDFH and LMPM, in 1941, the Saipan Property was located in what was referred in the 1941 Civil Condemnation Proceeding as Parcel F. (Doc. Nos. 146 at 6-7; 144-4 at 81 (identifying Parcel F)). Land was allegedly then created in Parcel F by dredging and filling a portion of San Diego Bay. (Doc. Nos. 146 at 6-7). SDFH and LMPM contend the United States has sole ownership and exercises exclusive jurisdiction over land created in this manner. Id. at 7-8.

Here, even if the court were to credit SDFH and LMPM's version of how the United States acquired the land upon which the Saipan Property now sits, SDFH and LMPM have still not provided sufficient evidence to show the Saipan Property exists within the boundaries of a federal enclave.

Although not entirely clear, SDFH and LMPM appear to present two theories as to how the United States possesses exclusive jurisdiction over the Saipan Property. First, SDFH and LMPM contend land created by dredging and filling navigable coastal waters are automatically under the federal government's exclusive jurisdiction. Id. at 8. SDFH and LMPM infer this must be true because the United States exercises jurisdiction over the navigable waters of the United States. Id.

SDFH and LMPM's first theory fails to differentiate between when the United States exercises jurisdiction and when it exercises exclusive jurisdiction. See Allison, 689 F.3d at 1237 ("The central principle of federal enclave doctrine is that Congress has exclusive legislative authority over these enclaves."). SDFH and LMPM have not cited any legal authority holding the United States possesses exclusive jurisdiction over state coastal waters. Indeed, SDFH and LMPM's suggestion state coastal waters are under the federal government's exclusive jurisdiction is contrary to law.

The Ninth Circuit's decision in Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991) case is instructive. In Beveridge, plaintiffs challenged the City of Santa Barbara's municipal ordinance forbidding the mooring and anchoring of vessels to the east of Stearns Wharf. Id. at 861. Specifically, plaintiffs contended the federal government had exclusive jurisdiction over the coastal waters of the United States and the city ordinance was, therefore, an invalid attempt by the local government to regulate an area preempted by the federal government. Id. The Ninth Circuit rejected this argument, noting it had found previously there was congressional intent for

there to be "joint federal/state regulation of ocean waters within three miles of shore." Id.; see also, e.g., Barber v. Hawaii, 42 F.3d 1185, 1191 (9th Cir. 1994) ("[T]he purpose of the [Submerged Lands Act] was not for the Federal Government to retain exclusive jurisdiction over navigation of the waters above the submerged lands, but for the Federal Government to retain concurrent jurisdiction over those waters.") (emphasis added).

SDFH and LMPM have also not identified —nor has the court been able to locate —any binding or persuasive authority supporting an argument that coastal land the United States "creates" is automatically subject to the exclusive jurisdiction of the federal government. The United States v. F.E.B. Corp., 52 F.4th 916 (11th Cir. 2022) decision—relied upon heavily by SDFH and LMPM—is not on point. (Doc. No. 146 at 8). The question in F.E.B. Corp. was whether the United States held title to an island created by the United States— not whether the United States possessed exclusive jurisdiction over it. F.E.B. Corp., 52 F.4th at 919.

SDFH and LMPM's citation to the Submerged Lands Act, 43 U.S.C. §§ 1311 et seq. is equally unpersuasive. (Doc. No. 146 at 8). The Submerged Lands Act is directed to title—not jurisdiction. Doucette v. San Diego Unified Port Dist., No. 95-56126, 1997 WL 632596 at *1, 1997 U.S. App. LEXIS 28476 at *3 (9th Cir. Oct. 10, 1997) ("In passing the Submerged Lands Act, however, Congress merely dictated that lands beneath navigable waters within three miles of state boundaries belong to the respective states."). Again, ownership and exclusive jurisdiction are two distinct concepts. Surplus Trading Co. v. Cook, 281 U.S. 647, 650, 50 S.Ct. 455, 74 L.Ed. 1091 (1930) ("[I]t is not unusual for the United States to own within a State lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the State.").

Indeed, in Doucette, albeit in an unpublished memorandum disposition, the Ninth Circuit stated California held the authority to regulate San Diego Bay. 1997 WL 632596, at *3, 1997 U.S. App. LEXIS 28476, at *9 ("[W]e conclude that [California] holds the authority to regulate the Bay[.]").

As an alternative theory, SDFH and LMPM contend California ceded exclusive jurisdiction of the land where the Saipan Property now sits to the United States. (Doc. No. 146 at 8-9). Specifically, in their Notice of Removal, SDFH and LMPM contend the United States acquired the land on which the Saipan Property is located —along with the lands that comprise present-day California—in 1848, from Mexico, in the Treaty of Guadalupe Hidalgo. (Doc. No. 1 at ¶ 9); see Thompson v. Doaksum, 68 Cal. 593, 596, 10 P. 199 (1886) ("The lands within the territorial limits of the state of California were ceded to our general government by the republic of Mexico under the treaty of Guadalupe Hidalgo of February 2, 1848.").

The court notes that while SDFH and LMPM appear to conflate these two theories, this alternative theory as to how the United States possesses exclusive jurisdiction over the Saipan Property is fundamentally inconsistent with SDFH and LMPM's contention the United States has always had exclusive jurisdiction over this "United States made" land. This is because SDFH and LMPM's second theory presumes California, at some point, held exclusive jurisdiction over the land underlying the Saipan Property. Otherwise, it would be unnecessary for California to have ceded jurisdiction over this land in order for the United States to possess exclusive jurisdiction over it.

In 1850, the United States admitted California to the Union. See An Act for the Admission of the State of California into the Union, 9 Stat. 452 (Sept. 9, 1850).

However, "when the United States admitted California into the Union, it did not reserve exclusive jurisdiction over the federal lands within the state, and therefore retained only the rights of an ordinary proprietor." Graupner v. Lewis Ltd. Consultants, LLC, No. ED CV 12-1388-JFW (OPx), 2012 WL 12895714, at *2, 2012 U.S. Dist. LEXIS 194116, at *5 (C.D. Cal. Oct. 26, 2012); see also Hillman v. Leixcon Consulting, Inc., No. LA-16-CV-001186, 2016 WL 10988766 at *3, 2016 U.S. Dist. LEXIS 200818 at *8 (C.D. Cal. July 27, 2016) ("In 1850, when the United States admitted California to the Union, it did not reserve exclusive jurisdiction over federal lands within California.").

SDFH and LMPM contend the land upon which the Saipan Property sits was then ceded to the United States under California's 1897 cession statute, which states:

The State of California hereby cedes to the United States of America exclusive jurisdiction over all lands within this State now held, occupied or reserved by the Government of the United States for military purposes or defense, or which may hereafter be ceded or conveyed to the United States for such purposes; provided that a sufficient description by metes and bounds and a map or plat of such lands be filed in the proper office of record in the county in which the same are situated[.]

(Doc. Nos. 1 at ¶ 9; 1-6 at 15-16; 146 at 8-9).

Under the explicit terms of the 1897 statute, cession occurs if at least two specific requirements are met: (1) if the United States provides a sufficient description of the metes and bounds of this land; and (2) a map or plat of such lands is filed in the proper office of record in the county in which the land is located. See Gillespie v. Centerra Servs. Int'l, Inc., No. EDCV 21-2028 JGB (SHKx), 2022 WL 16964007, at *15, 2022 U.S. Dist. LEXIS 211071, at *46 (C.D. Cal. Sep. 7, 2022); Hillman, 2016 WL 10988766, at *6, 2016U.S. Dist. LEXIS 200818, at *14.

"In 1943, California codified that statute as Government Code § 114." Jackson v. Mission Essential Pers., LLC, No. CV 11-1444-R, 2012 WL 13015000 at *1, 2012 U.S. Dist. LEXIS 199920 at *3 (C.D. Cal. Apr. 13, 2012). The 1984 version of the statute still provides that: "[a] sufficient description by metes and bounds and a map or plat of the lands shall first be filed in the proper office of record in the county in which the lands are situated." (Doc. No. 146-1 at 11-12).

SDFH and LMPM contend the above two requirements were met because a map outlining Parcel F was attached in Civil Condemnation Proceeding No. 1802-SD and "appears" to bear a County map stamp. (Doc. No. 146 at 8-9). The court does not agree. Even if a map of Parcel F may have been filed, there is no evidence in the record that the United States also provided a metes and boundary description of Parcel F. Instead, as SDFH and LMPM themselves note, Parcel F is not mentioned in the condemnation documents. Id. at 9.

Regardless, SDFH and LMPM have also not provided evidence the United States accepted jurisdiction of this land from California as required under the Act of October 9, 1940. Indeed, Mr. Cyr's declaration explicitly indicates the Navy has no record of such an acceptance. Cyr. Decl. at ¶ 8. "[I]n the absence of an explicit acceptance of jurisdiction by the federal government, the federal government's possession is 'simply that of an ordinary proprietor' and does not give rise to federal subject matter jurisdiction[.]" Cmty. Hous. P'ship v. Byrd, No. 13-3031 JSC, 2013 WL 6087350 at *4, 2013 U.S. Dist. LEXIS 164661 at *12 (N.D. Cal. Nov. 19, 2013); see Adams, 319 U.S. at 313, 63 S.Ct. 1122

("Since the government had not accepted jurisdiction in the manner required by the Act, the federal court had no jurisdiction of this proceeding."); United States v. Stone, No. CR12-0072-JCC, 2013 WL 6185169 at *2, 2013U.S. Dist. LEXIS 168336 at *6 (E.D. Cal. Nov. 26, 2013) ("[T]he United States government does not have exclusive or concurrent jurisdiction over land acquired from a state after 1940 unless it explicitly accepts jurisdiction by filing notice with the state.").

For the same reasons, if the court were to credit the Government's version of how the United States acquired the land upon which the Saipan Property now sits, there would still be insufficient evidence that the federal government possesses exclusive jurisdiction over this land. Absent evidence on the record the United States accepted exclusive jurisdiction of the additional parcels of land acquired in Civil Condemnation Proceeding No. Case No. 1802-SD, the court cannot conclude this land is a federal enclave.

For the reasons stated above, the court concludes there is insufficient evidence the Saipan Property is located within the boundaries of a federal enclave.

III. Whether the Court has Federal Officer/Federal Agency Jurisdiction under 28 U.S.C. § 1442

The court next looks to whether it has federal officer or federal agency jurisdiction over this case under 28 U.S.C. § 1442(a)(1).

A. Federal Officer Jurisdiction

In their Notice of Removal, SDFH and LMPM contend this action is also removable because, at all relevant times, SDFH and LMPM were acting under officers of the Navy "to fulfill the governmental function of housing military service members and their families." (Doc. No. 1 at ¶¶ 3, 30).

The federal officer removal statute permits removal of a state-court action against an "officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). "To invoke § 1442(a)(1) removal, a defendant in a state court action 'must demonstrate that (a) it is a 'person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiffs claims; and (c) it can assert a 'colorable federal defense.'" Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018) (quoting Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)).

Here, the court finds SDFH and LMPM have not satisfied their burden of proving the "causal nexus" requirement for removal jurisdiction is factually supported. See Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 684 (9th Cir. 2022) ("[D]efendants seeking removal still bear the burden of proving by a preponderance of the evidence that the ... causal nexus requirement[ ] for removal jurisdiction [is] factually supported.") (internal quotation marks omitted).

"To demonstrate a causal nexus, the private person must show: (1) that the person was 'acting under' a federal officer in performing some 'act under color of federal office,' and (2) that such action is causally connected with the plaintiffs claims against it." Cty. of San Mateo v. Chevron Corp., 32 F.4th 733, 755 (9th Cir. 2022). The causal nexus inquiry "focuses on whether the defendant was involved in an effort to assist, or to help carry out, the duties or tasks of a federal superior." Lake v. Ohana Military Cmtys., LLC, 14 F.4th 993, 1004 (9th Cir. 2021) (internal quotation marks omitted).

Here, SDFH and LMPM do not contend they were acting directly under the instructions

of a federal officer. SDFH and LMPM have not pointed to any evidence in the record of communications between SDFH, LMPM, and a federal officer about Plaintiffs' complaints. Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099-1100 (9th Cir. 2018) (noting lack of evidence of any communication between defendant and federal officer regarding actions taken by defendant against plaintiff).

In the absence of such an explicit directive, SDFH and LMPM contend they were acting pursuant to the instructions of the Navy because of their adherence to a Mold Management Plan ("O&M Plan"). (Doc. No. 146 at 14). The O&M Plan is an "internal policy for the management of water-intrusion and mold-related conditions" in LMPM-managed military family housing. (Doc. No. 130-4 at 1). It sets forth certain "procedures and policies" LMPM employees must follow "when addressing potential water intrusion and mold conditions." Id. According to SDFH and LMPM, the O&M Plan was developed "with the Navy's input and approval[.]" (Doc. No. 128-3 at ¶ 19).

As the Ninth Circuit recently noted in Lake v. Ohana Military Communities, LLC, however, "§ 1442(a)(1) does not allow removal simply because a federal agency directs, supervises, and monitors a company's activities in considerable detail." 14 F.4th at 1004 (internal quotation marks omitted). The Lake decision is particularly instructive here. In Lake, the Ninth Circuit considered whether federal officer jurisdiction existed over a case originally filed in state court directed to the alleged failures of Ohana Military Communities, LLC ("Ohana")—a PPV formed under the MHPI—to inform residents about pesticide contamination in military housing property. Id. at 998.

The Ninth Circuit held federal officer jurisdiction did not exist because the "'central issue' in the causal nexus analysis —whether a federal officer directed the defendant to take the action challenged— [was] unmet." Id. at 1005. The Ninth Circuit based its decision on the fact that: (1) defendants had not argued that the Navy had control over Ohana's decision to disclose pesticide contamination; (2) the Navy disclaimed management and control over Ohana; (3) and the Navy's consent power over certain aspects of this arrangement did not meet casual nexus standard. Id. at 10045.

Although the Lake decision would appear to be strikingly similar, SDFH and LMPM contend Lake is nonetheless distinguishable because Ohana's relationship with the Navy was far more tenuous than SDFH and LMPM's, and because unlike in Lake, SDFH and LMPM were required to follow the O&M Plan. (Doc. No. 146 at 14).

The evidence on the record does not support SDFH and LMPM's arguments the challenged actions (or omissions) in this case were controlled by the Navy. Like in Lake, the Operating Agreement between the Navy and Lincoln/Clark San Diego, LLC disclaims Navy responsibility over management and control decisions, stating Lincoln/Clark San Diego, LLC—and not the Navy—has "exclusive management and control" over SDFH, including "full authority to take all actions necessary or appropriate to pursue the business and carry out" SDFH's purpose. (Doc. No. 130 at 20); see also Lethgo v. CP IV Waterfront, LLC, No. 22-00052 JAOWRP, 2022 WL 2177125 at *4, 2022 U.S. Dist. LEXIS 107381 at *10 (D. Haw. June 16, 2022) (finding lack of causal nexus where, among other things, agreement between private corporation and Navy disclaimed Navy responsibility). As the Ninth Circuit noted, the Navy itself regards PPV housing as "owned by a private entity and governed by a business agreement in which the Navy has limited rights and

responsibilities[.]" Lake, 14 F.4th at 1004-05 (internal quotation marks omitted).

The fact that the Navy reviewed and approved the O&M Plan is also insufficient to show SDFH and LMPM's actions were controlled by the Navy. As the Ninth Circuit held in Lake, "[t]he Navy's consent power over aspects of the housing arrangement" does not satisfy the causal nexus requirement. 14 F.4th at 1005. Instead, "[r]equiring federal agency consent on collateral points 'fall[s] within the simple compliance with the law circumstance[.]'" Id. (quoting Riggs v. Airbus Helicopters, Inc., 939 F.3d 981, 989 (9th Cir. 2019)); see Cty. of San Mateo v. Chevron Corp., 32 F.4th 733, 757 (9th Cir. 2022) ("[A] person's compliance with the law (or acquiescence to an order)" does not "amount to 'acting under' a federal official who is giving an order or enforcing the law.") (internal quotation marks omitted); Early v. Northrop Grumman Corp., No. 2:13-cv-3130-ODW(MRWx), 2013 WL 3872218, at *5, 2013 U.S. Dist. LEXIS 104628, at *13 (C.D. Cal. July 24, 2013) (rejecting defendant's arguments it acted under a federal officer because it was required by agreement to comply with certain Air Force standards); see also Clover v. Camp Pendleton & Quantico Hous. LLC, 525 F. Supp. 3d 1140, 1144 (S.D. Cal. 2021) ("Although Defendants have pointed to a Navy-approved mold management plan and other Navy guidance on how to manage the property, there is nothing to suggest that the government was exercising its discretion and that Defendants were merely following orders as given.").

Finally, SDFH and LMPM's specific allegations as to how decisions they made were directed by the Navy is contrary to evidence. See Early, 2013 WL 3872218, at *5, 2013 U.S. Dist. LEXIS 104628, at *13 (a defendant "has the burden to exclude the possibility that whatever acts it took or did not take were not justified by federal direction."). For example, SDFH and LMPM contend LMPM was prevented from testing Plaintiffs' home for mold without a recommendation from a third-party consultant, as doing so "would have gone against the Navy's mold testing policy." (Doc. No. 146 at 14). This is not, however, what the O&M Plan actually provides. Instead, the O&M Plan states if a resident requests mold testing, maintenance technicians must inform the resident that LMPM "follows EPA and industry guidelines that call for mold testing only if that testing is recommended by a third-party inspector in their professional judgment." (Doc. No. 130-4 at 9). The O&M Plan further states that if the resident insists, the requests should be brought to the District Manager or Maintenance Supervisor. Id. Nowhere does the O&M Plan dictate mold testing is prohibited without a recommendation from a third-party consultant. Although SDFH and LMPM additionally claim the Navy audits their mold remediation decisions, there is no evidence LMPM submitted a work order request to address Plaintiffs' complaints that was denied by the Navy.

As another example, SDFH and LMPM contend the Navy provides SDFH with periodic "letter directives." (Doc. Nos. 128-4 at 110-131; 146 at 13). SDFH and LMPM do not, however, contend any of these letter directives affected their decisions in this case. Further, the majority of these "directives" appear to merely describe legal regulations the Navy expects entities created under the MHPI to follow. (Doc. No. 128-4 at 115 (describing requirement codified in 10 USC § 2891a(d)(i) and relaying expectation by Navy that entities created under MHPI comply with this statutory requirement)). These directives are insufficient to show SDFH and LMPM were "acting under" the Navy in this case. In order for a private person to be "acting

under" a federal officer, the relationship "must go beyond simply complying with the law, even if the laws are highly detailed[.]" Goncalves v. Rady Children's Hosp. San Diego, 865 F.3d 1237, 1245 (9th Cir. 2017) (internal quotation marks omitted).

For the reasons stated above, the court finds SDFH and LMPM have failed to establish at least the causal nexus requirement for federal officer jurisdiction.

B. Federal Agency Jurisdiction

As a final ground for federal subject matter jurisdiction in their Notice of Removal, SDFH and LMPM contend this case is removable pursuant to 28 U.S.C. § 1442(a)(1), because SDFH is a federal agency. (Doc. No. 1 at ¶ 3).

28 U.S.C. § 1442(a)(1) also permits removal of a state-court action against "[t]he United States or any agency thereof." As used in § 1442(a)(1), a "federal agency" is defined as "any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense." 28 U.S.C. § 451; see Lake, 14 F.4th at 1005 n.5 (citing 28 U.S.C. § 451 in determining whether action was removable under federal agency jurisdiction); Carney v. City of San Diego, No. 21cv392 DMS (MDD), 2021 WL 2886049 at *2, 2021 U.S. Dist. LEXIS 128439 at *4 (S.D. Cal. July 9, 2021) (explaining that "28 U.S.C. § 451 defines 'agency' for the purposes of Title 28[.]").

The Ninth Circuit has set forth a six-factor test for determining whether an entity falls within 28 U.S.C. § 451's definition of "federal agency":

(1) the extent to which the alleged agency performs a governmental function; (2) the scope of government involvement in the organization's management; (3) whether its operations are financed by the government; (4) whether persons other than the government have a proprietary interest in the alleged agency and whether the government's interest is merely custodial or incidental; (5) whether the organization is referred to as an agency in other statutes; and (6) whether the organization is treated as an arm of the government for other purposes, such as amenability to suit under the Federal Tort Claims Act.

Lake, 14 F.4th at 1005 (quoting In re Hoag Ranches, 846 F.2d 1225, 1227-28 (9th Cir. 1988)).

The Ninth Circuit's Lake decision is, again, instructive. In Lake, the Ninth Circuit found none of the In re Hoag factors supported finding Ohana—a PPV created pursuant to the MHPI—to be a "federal agency." Id. In a similar vein, none of the six In re Hoag factors support finding SDFH to be an "agency" here. Indeed, as the court notes below, although SDFH and LMPM contend the Lake decision is distinguishable, many of the arguments SDFH and LMPM raise as to why SDFH is a "federal agency" are the same as those already considered and rejected by the Ninth Circuit.

With respect to the first In re Hoag factor—whether SDFH performs a governmental function—the Ninth Circuit already found in Lake that "[m]erely leasing housing to a servicemember cannot itself be a governmental function" as a service member's Basic Allowance for Housing ("BAH") "can be used on or off a military base." 14 F.4th at 1005. "Otherwise, every private housing (or other service) provider that leases to a service-member would perform a governmental function." Id.

In an attempt to distinguish Lake, SDFH and LMPM contend SDFH performs

a government function because unlike private landlords, SDFH is required to ensure a military service member's BAH is sufficient to cover the cost of housing. (Doc. No. 146 at 20). While SDFH and LMPM argue this is a "key difference," the court is unclear as to its significance. Even private landlords may be subject to government regulations limiting the amounts they can charge for rent. See Peace Ranch LLC v. Newsom, No. 2:21-cv-01651-JAM-AC, 2022 WL 378264 at *1, 2022 U.S. Dist. LEXIS 22842 at *3 (E.D. Cal. Feb. 7, 2022) ("Since 2019, California state law limits the amount an owner of residential property can increase rent."). This does not mean all such landlords are performing a government function. For these reasons, the court finds the first In re Hoag factor does not support finding SDFH to be a "federal agency."

Moving to the second In re Hoag factor, "the scope of government involvement" in SDFH's management also does not support finding SDFH to be a "federal agency." Here, SDFH and LMPM contend the degree of control the Navy exercises over SDFH is far more significant than the PPV at issue in Lake. (Doc. No. 146 at 12-13, 20). The court does not agree.

Like the MHPI PPV in Lake, the federal government's involvement in SDFH's management is limited. The Operating Agreement entered into between the Navy and Lincoln/Clark San Diego, LLC specifically disclaims Navy responsibility over SDFH's management. (Doc. No. 130 at 20). Instead, the Operating Agreement explicitly grants Lincoln/Clark San Diego, LLC—and not the Navy—the authority to perform a host of managerial responsibilities including: (1) to "expend the capital and revenues" of SDFH; (2) to "employ, compensate, and dismiss ... employees, agents, independent contractors, attorneys, and accountants"; (3) to enter into agreements it deems "necessary or appropriate to accomplish" SDFH's purpose; (4) to borrow money; (5) to purchase insurance; (6) to deposit and maintain SDFH's funds—and other such managerial responsibilities. Id. at 20-21. In contrast, the Navy possesses only limited consent power—such as the authority to request that a failing property manager be replaced, to consent to mergers, or to consent to whether to encumber additional debt. Id. at 59-64. As the Ninth Circuit noted in Lake, the government does not "control" an agency where the government is "removed from participation in day-to-day management," even if a corporation remains subject to federal regulation. 14 F.4th at 1006 (internal quotation marks omitted). At most, as in Lake, in light of the limited extent of the federal government's involvement in SDFH's management, this factor "does not weigh heavily in either direction." Id.

With respect to the third In re Hoag factor, there is no evidence SDFH's "operations are financed by the government." While the United States may have made an initial contribution to capitalize SDFH, "[a]n initial financial contribution does not show ongoing operational financing." Lake, 14 F.4th at 1006. Absent evidence the Navy is continuing to finance SDFH's operations, the Navy's initial financial contribution, alone, does not support finding SDFH to be a "federal agency."

Continuing to the fourth In re Hoag factor, it is indisputable "persons other than the government" have a proprietary interest in SDFH. Specifically, the Operating Agreement indicates Lincoln/Clark San Diego, LLC also made a capital contribution and possesses a "Membership Interest" in SDFH. (Doc. No. 130 at 11, 54-55). This factor, therefore, also does not support finding SDFH to be a "federal agency." With respect to the fifth In re Hoag factor, SDFH and LMPM contend SDFH could qualify as an "agency" pursuant to other statutes—but provides no legal authority actually supporting this statement. Contrary to SDFH and LMPM's argument, the question is not whether SDFH could qualify as an agency pursuant to other federal statutes. Instead, the court must consider whether there is evidence SDFH is considered a federal agency under other federal statutes. See Waldron v. FDIC, 935 F.3d 844, 848 (9th Cir. 2019) (finding FDIC to be a "federal agency" where there was legal authority supporting the fact that it was considered a federal agency under other statutes, including the Federal Tort Claims Act). Absent such evidence or legal authority, this factor also does not support finding SDFH to be a "federal agency."

Finally, SDFH and LMPM do not address the sixth factor—whether SDFH is treated as an arm of the government for other purposes. Any arguments this factor supports finding SDFH to be a "federal agency" are, therefore, waived. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (the court reviews only "issues which are argued specifically and distinctly" by the parties); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (courts "will not manufacture arguments for [either party], and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review.").

Based on the above, the court concludes the balance of factors "tips towards treating" SDFH as a private entity, not a federal agency. Lake, 14 F.4th at 1006. As such, SDFH and LMPM have not established that the court has federal agency jurisdiction over this dispute.

CONCLUSION

For the reasons set forth above, the court REMANDS this action to San Diego Superior Court for lack of subject matter jurisdiction. LMPM and SDFH's Motion for Summary Judgment (Doc. No. 128) and Motion to Seal (Doc. No. 129) are additionally DENIED WITHOUT PREJUDICE as moot.

IT IS SO ORDERED.