United States District Court, D. Alaska
ORDER DENYING MOTION TO REMAND AT DOCKET 16.
RALPH R. BEISTLINE, District Judge.
I. PENDING MOTION/BACKGROUND
Plaintiff Brigadier General Catherine Jorgensen filed this action in the Alaska Superior Court. Defendants State of Alaska, Alaska Department of Military and Veterans Affairs, and Brigadier General Leon M. Bridges removed it to this Court. At Docket 16 Plaintiff has moved to remand this matter to the state courts. Defendants have opposed the motion and Plaintiff has replied. The Court has determined that oral argument would not materially assist in resolving the issue presented. Accordingly, the matter is submitted for decision on the moving and opposing papers without oral argument.
Plaintiff is a dual-status employee: a Brigadier General in the Alaska National Guard ("ANG") and a full-time federal civil technician. On October 20, 2014, the Governor ordered BG Bridges to remove Plaintiff from her National Guard position, which order BG Bridges carried out. On October 24, 2014, due to her removal from her military assignment, the Human Resources Officer of the Departments of the Army and Air Force issued a termination of Plaintiff's civilian military reserve technician position. Plaintiff challenged these actions. On November 19, 2014, the original termination notice was revised and discussions/negotiations between Plaintiff and the State followed. These discussions/negotiations were unfruitful, and Plaintiff was notified that she would be removed from her position effective December 31, 2014.
On December 30, 2014, Plaintiff initiated this Action in the Alaska Superior Court, Third Judicial District alleging that removal from her positions violated due process and was not in accordance with state and federal law. In her Complaint Plaintiff seeks a temporary restraining order and preliminary injunction prohibiting Defendants from removing her from her positions. On December 31, 2014, the Alaska Superior Court issued a Temporary Restraining Order enjoining termination of Plaintiff pending a preliminary injunction hearing. On January 8, 2015, Defendants removed this action to this Court.
II. ISSUE PRESENTED/APPLICABLE LAW
The sole question presented by the motion is whether or not this Court has subject-matter jurisdiction over the controversy. It is axiomatic that Federal courts possess only that power authorized by Constitution and statute, which may not be expanded by judicial decree. It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing jurisdiction rests upon the party asserting jurisdiction. Subject-matter jurisdiction can be neither waived nor conferred by consent. Furthermore, any order or judgment entered by a court lacking subject matter jurisdiction is a nullity and void.
Removal is proper if the action is one over which this Court would have original jurisdiction. Subject-matter jurisdiction is conferred on this Court if one of two conditions exist: (1) a diversity of citizenship between the parties; or (2) the case arises under the Constitution, laws or treaties of the United States. There being present no diversity of citizenship, subject-matter jurisdiction in this case lies with this Court only if the case involves a question of federal law. The Ninth Circuit has stated the federal-question requirements as:
Federal courts may exercise federal-question jurisdiction over an action in two situations. First, and most commonly, a federal court may exercise federal-question jurisdiction if a federal right or immunity is an element, and an essential one, of the plaintiff's cause of action. Thus, the federal question on which jurisdiction is premised cannot be supplied via a defense; rather, the federal question must be disclosed upon the face of the complaint, unaided by the answer. Second, a federal court may have such jurisdiction if a state-law claim necessarily raises a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally-approved balance of federal and state judicial responsibilities. Such a federal issue must be a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum.
If this Court has federal-question jurisdiction in this case, to the extent that resolution involves issues of state law, it may exercise supplemental jurisdiction over those claims.
In seeking remand, Plaintiff raises three basic arguments: (1) BG Bridges is not a federal employee; (2) the complaint is not a "civil action" under 28 U.S.C. § 1442; and (3) the complaint does not assert a federal claim governed by 28 U.S.C. § 1441. It is undisputed that in her capacity as a member of the ANG Plaintiff is a state employee. It is likewise undisputed that Plaintiff's continued employment as a federal technician is dependent upon her continued service as a member of the ANG, i.e., her removal as a member of the ANG automatically results in the simultaneous termination of her federal employment.
Initially, this Court finds somewhat perplexing the effect of Plaintiff's "agreement" to dismiss BG Bridges as a defendant. Plaintiff argues that dismissal of BG Bridges "would require remand back to the state court since the only claim is against the State of Alaska." BG Bridges is being sued in his capacity as the acting Adjutant General, not in his individual capacity. It is well-settled that "a suit against a state official in his or her official capacity... is no different from a suit against the state itself." Moreover, jurisdiction of this Court is predicated upon the existence of a federal question, not on status of the defendants. Thus, the presence or absence of BG Bridges as a defendant has no effect on the jurisdiction of this Court.
Likewise, the Court finds Plaintiff's argument that this not a "civil action" specious. The relief sought is injunctive, i.e., precluding termination of Plaintiff as a member of the ANG and its necessarily concurrent effect of removing her from her federal position as a technician. Injunctive relief is inherently civil in nature. Furthermore, the gravamen ...