PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT



                     No. 21-1047


              RONALD E GILLETTE,
                             Appellant

                          v.

       WARDEN GOLDEN GROVE ADULT
         CORRECTIONAL FACILITY


On Appeal from the District Court of the Virgin Islands
               (Division of St. Croix)
         District Court No. 1-17-cv-00042
    District Judge: Honorable Wilma A. Lewis


               Argued on May 11, 2022

Before: JORDAN, MATEY and ROTH, Circuit Judges

            (Opinion filed: July 21, 2023)
Joseph A. DiRuzzo, III             (Argued)
Daniel M. Lader
DiRuzzo & Company
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301

             Counsel for Appellant

Bradley Hinshelwood               (Argued)
United States Department of Justice
Room 7256
950 Pennsylvania Avenue, NW
Washington, DC 20530

Adam Sleeper
Office of United States Attorney
5500 Veterans Drive
Suite 260
United States Courthouse
St. Thomas, VI 00802

Angela P. Tyson-Floyd
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, VI 00820

             Counsel for Appellee




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                 OPINION OF THE COURT


ROTH, Circuit Judge.

        To aid his pending habeas corpus petition in the Virgin
Islands Superior Court, Ronald Gillette subpoenaed the United
States Attorney’s Office (USAO) in the District of the Virgin
Islands for documents related to his convictions under the laws
of the Virgin Islands. The federal government was not a party
to the habeas action and no convictions under federal law were
being questioned in it. When Gillette did not receive the
subpoenaed documents, he filed a motion to compel. The
USAO removed the proceedings to the District Court and then
moved to quash the subpoena. The District Court granted the
motion to quash. Gillette appealed.

       The government contends that we lack jurisdiction over
Gillette’s appeal because the United States never waived its
sovereign immunity concerning non-monetary actions against
it. According to the government, because there was no waiver,
the Superior Court lacked jurisdiction over the USAO, and, as
a result, since the District Court derived its jurisdiction over
Gillette’s subpoena-enforcement action from 

(a)(1), the District Court also lacked jurisdiction, and so
do we.

        We agree with the government. As explained in greater
detail below, we will dismiss Gillette’s appeal for lack of
jurisdiction.




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                                I.

        Gillette is a serial sex offender. In the 1980s in New
Mexico, he received a twenty-seven-year sentence for sex
crimes. After his release, he never registered as a sex offender.
On a tip, law enforcement found that Gillette had been living
with a fifteen-year-old boy and had engaged in sexual contact
with that child and another child. A grand jury indicted Gillette
under both federal and Virgin Islands law. At a bench trial in
District Court, Gillette was convicted on twenty counts of
territorial-law offenses. The federal charges were dismissed.
The court sentenced Gillette to 155 years’ imprisonment. We
affirmed Gillette’s conviction on direct appeal. 1

       After exhausting his direct-appeal rights, Gillette filed a
habeas petition in the Virgin Islands Superior Court. He sought
to subpoena the USAO, and the Superior Court issued a
subpoena duces tecum to the USAO. As required by
Department of Justice regulations concerning subpoenas, 2 the
USAO requested that Gillette submit “a summary of the
information” sought “and its relevance to the proceeding.” 3
Gillette never did so; instead, he moved for contempt and


1
  United States v. Gillette, 

 (3d Cir. 2013).
2
  Regulations setting out how an agency should respond to
discovery are promulgated pursuant to 

. The
regulations that were drawn up by the Department of Justice
are often referred to as Touhy regulations, see United States ex
rel. Touhy v. Ragen, 

 (1951), in which the
Supreme Court rejected a challenge to such regulations.
Gillette did not comply with the Touhy regulations.
3
  JA 42; see 

(d).




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sanctions against the USAO for failing to respond to his
subpoena.

       The USAO then removed the proceedings to the District
Court pursuant to 

(a)(1). 4 There, the USAO
moved to quash the subpoena, and Gillette sought the
appointment of counsel. The Magistrate Judge granted the
motion to quash and denied Gillette’s request for counsel. The
District Court affirmed the Magistrate Judge’s order. Gillette
appealed.

                                II.

                                A.

        The government’s primary argument is that we lack
jurisdiction over Gillette’s subpoena-enforcement action
because the United States never waived its sovereign
immunity. Gillette, however, contends that the government
forfeited its position on sovereign-immunity. Thus, before
reaching the merits of the government’s appeal, we must
decide whether we have jurisdiction to consider it.


4
  Section 1442(a)(1) provides that any “civil action . . . that is
commenced in a State court and that is against or directed to
any of the following may be removed by them to the district
court of the United States for the district and division
embracing the place wherein it is pending: (1) The United
States or any agency thereof . . . for or relating to any act under
color of such office or on account of any right, title or authority
claimed under any Act of Congress for the apprehension or
punishment of criminals or the collection of the revenue.”




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        Gillette claims that the government forfeited its
sovereign-immunity argument in the District Court by not
sufficiently preserving it there. Specifically, the government
removed Gillette’s subpoena-enforcement action from the
Superior Court to the District Court under § 1442(a)(1). 5
According to Gillette, the government’s failure to challenge the
District Court’s jurisdiction upon removal was a procedural
defect in the government’s removal petition and therefore
amounted to a forfeiture. The government disagrees, asserting
that it may raise a question of subject-matter jurisdiction at any
time.

        When a case is removed to federal court under
§ 1442(a)(1), the District Court derives its subject-matter
jurisdiction from the court from which the case was removed. 6
We have held that the question of a federal court’s so-called
“derivative jurisdiction” is one of subject-matter jurisdiction:
“[I]f the state court had no jurisdiction, the federal court can
acquire none, and must dismiss.” 7 As with any other question


5
   While Congress has abrogated the derivative-jurisdiction
doctrine for removals under 

, Congress has
not abrogated the doctrine for removals under § 1442(a)(1).
See, e.g., Lopez v. Sentrillon Corp., 

, 350–51 (5th
Cir. 2014) (holding that Congress did not abrogate the
derivative-jurisdiction doctrine for cases removed under
§ 1442).
6
  Witherow v. Firestone Tire & Rubber Co., 

, 167–
68 (3d Cir. 1976) (holding that “it is undisputably the law[] that
removal jurisdiction is derivative—that the federal court
‘derives’ its jurisdiction from the state court . . ..”).
7
  

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of subject-matter jurisdiction, 8 we have held that a question of
derivative jurisdiction can be raised at any time and thus cannot
be waived or forfeited. 9

        Gillette asks us to reconsider our precedents and follow
decisions made by our sister circuits holding that questions of
“derivative jurisdiction” may be waived or forfeited. 10 We
decline Gillette’s invitation. As the Supreme Court explained,
“[w]he[n] the state court lacks jurisdiction of the subject matter
or of the parties, the federal court acquires none, although in a
like suit originally brought in a federal court it would have had
jurisdiction.” 11 We see no reason to disregard the Supreme
Court’s command.


8
   See, e.g., Wayne Land & Mineral Grp. LLC v. Delaware
River Basin Comm’n, 

, 522 n.9 (3d Cir. 2018)
(explaining that “subject[-]matter jurisdiction may be
contested at any time”).
9
  Bradshaw v. General Motors Corp., 

, 112 (3d
Cir. 1986); Gleason v. United States, 

, 173–74 (3d
Cir. 1972); Stapleton v. $2,438,110, 

, 1217–18
(3d Cir. 1972).
10
   See, e.g., Rodas v. Seidlin, 

 (7th Cir. 2011);
State of N.D. v. Fredericks, 

, 336–37 (8th Cir.
1991); Morda v. Klein, 

 (6th Cir. 1989);
Foval v. First Nat’l Bank of Commerce in New Orleans, 

 (5th Cir. 1988); Sorosky v. Burroughs Corp., 

, 800–01 (9th Cir. 1987).
11
   Minnesota v. United States, 

 (1939); see
also Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 

 (1922); General Inv. Co. v. Lake Shore & M.S.
Ry. Co., 

 (1922).




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                               B.

        Next, we turn to the merits of the government’s
sovereign-immunity argument: Did the United States waive its
sovereign immunity over Gillette’s subpoena-enforcement
action in such a way that the Superior Court had jurisdiction
over it? “As a sovereign, the United States is immune from
suit unless it consents to be sued.” 12 For example, under § 702
of title 5 of the U.S. Code, the United States has waived
sovereign immunity in non-monetary actions “in a court of the
United States.” 13 Whether the United States has waived its
sovereign immunity is a jurisdictional question. 14

        Gillette argues that no issue of sovereign immunity
exists here because the Superior Court, as a court in a territory
of the United States, is a federal court. Thus, Gillette
essentially contends that the United States waived its sovereign
immunity over his action under § 702. Section 702 provides
a waiver of sovereign immunity in an “action in a court of the
United States seeking relief other than money damages”
against an agency or officer of the United States.

       We disagree with Gillette that the Superior Court is a
court of the United States for two reasons. First, we look to the
Revised Organic Act of the Virgin Islands. Specifically, the
Revised Organic Act distinguishes between the District Court
of the Virgin Islands, which “shall have the jurisdiction of a

12
   See, e.g., White-Squire v. U.S. Postal Serv., 

 (3d Cir. 2010).
13
   See, e.g., 

.
14
   See, e.g., White-Squire, 

; United States v.
Bein, 

 (3d Cir. 2000).




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District Court of the United States,” and “the local courts of the
Virgin Islands,” which are “established by local law.” 15
Indeed, the Organic Act contemplates that “local law” will vest
“local courts” with jurisdiction over certain matters, and, for
any matter in which local law has not vested local courts with
jurisdiction, the Organic Act vests original jurisdiction in the
District Court. 16 As for jurisdiction over “offenses against the
criminal laws of the Virgin Islands,” the District Court shares
concurrent jurisdiction with “the courts of the Virgin Islands
established by local law.” 17 In short, the Revised Organic Act
contemplates the Superior Court being a creature of “local
law”—not a federal court or a court of the United States.

        Second, we look to the removal statute itself. The
removal statute applicable here permits a “civil action . . . that
is commenced in a State court” to be removed. 18 That statute
defines “State court” to include “a court of a United States
territory or insular possession.” 19 Thus, the removal statute
does not contemplate the Superior Court to be a federal court
or court of the United States; instead, it considers the Superior
Court to be effectively the same as a “State court.”

       In sum, under the Revised Organic Act, the Superior
Court is a court established by Virgin Islands local law; and,
under the removal statute, Gillette’s subpoena-enforcement
action came to federal court from a “State court.” Thus, the
Superior Court is neither a federal court nor a court of the

15
   Compare 

(a); 

 § 1612(b).
16
   Id. § 1612(b).
17
   Id. § 1612(c).
18
   Id. § 1442(a) (emphasis added).
19
   Id. § 1442(d)(6).




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United States. For that reason, § 702 provides no basis for a
waiver of the United States’s sovereign immunity.

        Given that Gillette points to no waiver of the United
States’s sovereign immunity, the United States has not waived
its sovereign immunity over Gillette’s subpoena-enforcement
action.

                            III.

       For the foregoing reasons, we will dismiss Gillette’s
appeal for lack of jurisdiction.




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