Plaintiff filed a 1983 action against a police officer claiming that he had violated his federal civil rights by killing a man who was a father figure to him. On the defendant’s motion, the district court dismissed the action finding that the plaintiff lacked Article III standing because plaintiff did not allege any not allege amy custodial, biological, or legal relationship between himself and the decedent. The panel holds that this ruling was a determination on the merits, entitled to issue preclusive effect with respect to Article III standing even though the district court erred in so characterizing what more properly was a merits ruling. Then plaintiff refiled the action in state court, and defendant removed to federal court. Held, by removing the case to federal court, the defendant waived the issue preclusive effect of the prior order of dismissal. One cannot invoke federal jurisdiction merely to claim that federal courts lack jurisdiction since otherwise the plaintiff is left without any court to vindicate his rights.