Jorgensen v. State of Alaska et al

Filing 27

ORDER Denying Motion to Remand at Docket 16 . (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRIGADIER GENERAL CATHERINE
JORGENSEN,
Plaintiff,

Case No. 3:15-cv-00003-RRB
ORDER DENYING MOTION
TO REMAND AT DOCKET 16

vs.
STATE OF ALASKA; STATE OF
ALASKA DEPARTMENT OF
MILITARY and VETERANS AFFAIRS;
and BRIGADIER GENERAL LEON M.
BRIDGES,
Defendants.

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.1 At Docket 16 Plaintiff has
moved to remand this matter to the state courts. Defendants have opposed the motion2 and

1

Docket 1. The Court notes that in so doing, the State has waived its Eleventh
Amendment immunity. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,
620 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004); Stewart v. North Carolina,
393 F.3d 484, 488 (4th Cir. 2005).
2

Docket 19.

ORDER DENYING MOTION TO REMAND AT DOCKET 16
Jorgensen v. Alaska, Case No. 3:15-cv-00003-RRB – 1

Plaintiff has replied.3 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.4
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.5 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

3

Docket 21.

4

D.Ak LR 7.2(a)(3).

5

Jorgensen v. Alaska, Case No. 3AN-14-11030 CI.

ORDER DENYING MOTION TO REMAND AT DOCKET 16
Jorgensen v. Alaska, Case No. 3:15-cv-00003-RRB – 2

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.6 Subject-matter jurisdiction can be
neither waived nor conferred by consent.7 Furthermore, any order or judgment entered by a
court lacking subject matter jurisdiction is a nullity and void.8
Removal is proper if the action is one over which this Court would have original
jurisdiction.9 Subject-matter jurisdiction is conferred on this Court if one of two conditions exist:
(1) a diversity of citizenship between the parties;10 or (2) the case arises under the
Constitution, laws or treaties of the United States.11 There being present no diversity of

6

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

7

Pennsylvania v. Union Gas Co., 491 U.S. 1, 26 (1989), overruled on other grounds
by Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Luong, 627 F.3d 1306,
1310 (9th Cir. 2010).
8

Orff v. United States, 358 F.3d 1137, 1149 (9th Cir. 2004).

9

28 U.S.C. § 1441(a).

10

28 U.S.C. § 1332.

11

28 U.S.C. § 1331.

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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.12
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.13
III.

DISCUSSION
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.14 It is likewise
undisputed that Plaintiff’s continued employment as a federal technician is dependent upon

12

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1086–87 (9th
Cir. 2009) (internal quotation marks, alterations, and citations omitted).
13

28 U.S.C. § 1367(a); 1441(c).

14

That is, at the time of Plaintiff’s termination, the Alaska National Guard had not been
“federalized.”
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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.”15
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.”16 Moreover, jurisdiction of this Court is
predicated upon the existence of a federal question, not on status of the defendants.17 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.

15

Plaintiff’s Motion to Remand, Docket 16, p. 22, n. 58.

16

Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989); see Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (stating that an official capacity claim is “another way of
pleading an action against an entity of which an officer is an agent.”) (internal quotation marks
and citation omitted)).
17

Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001) relied upon by Plaintiff is
inapposite. Federal jurisdiction in Himsel rested upon the Federal Tort Claims Act claim
against a federal employee. Plaintiffs voluntarily dismissed their claims against the federal
employees, eliminating the federal question, and the case was remanded to the state court.
In this case, removing BG Bridges, standing alone, does not necessarily eliminate the federal
question.
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Injunctive relief is inherently civil in nature.18 Furthermore, the gravamen underlying Plaintiff’s
claim is that her termination was wrongful, also a civil, not criminal, action.
Plaintiff argues that in her action she is challenging solely her dismissal as Land
Component Commander of the ANG, not her dismissal as a federal technician. This argument
is directly contrary to the allegations of her complaint. In her Complaint, Plaintiff alleges: “By
virtue of the procedural safeguards against adverse actions provided by federal and Alaska
law, BG Jorgensen has a legitimate expectation that no adverse action would be taken against
her without due process.”19 In her Prayer for Relief Plaintiff requests that the “Court enter an
injunction pursuant to Alaska Civil Rule 65(a) that prohibit defendants from temporarily or
permanently removing BG Jorgensen from her positions without due process, and in
accordance with Alaska and Federal law.”20 It is undisputed that Plaintiff’s continued federal
employment as a technician is dependent upon her holding a position in the ANG: the two are
inextricably intertwined. How, as Plaintiff asserts, her Complaint does not raise a question of
federal law is both unexplained and inexplicable.
At the heart of this case is 32 U.S.C. § 709, which provides in relevant part:
(a) Under regulations prescribed by the Secretary of the Army or the Secretary
of the Air Force, as the case may be, and subject to subsections (b) and (c),
persons may be employed as technicians in—
(1) the organizing, administering, instructing, or training of the National
Guard;
* * * *
18

See Fed. R. Civ. P. 65;

19

Complaint for Injunctive Relief, Docket 1-1, p. 11 (emphasis added).

20

Id. (emphasis added).

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(b) Except as authorized in subsection (c), a person employed under
subsection (a) must meet each of the following requirements:
(1) Be a military technician (dual status) as defined in section 10216(a)
of title 10.
(2) Be a member of the National Guard.
(3) Hold the military grade specified by the Secretary concerned for that
position.
(4) While performing duties as a military technician (dual status), wear
the uniform appropriate for the member’s grade and component of the
armed forces.
(c)
(1) A person may be employed under subsection (a) as a non-dual
status technician (as defined by section 10217 of title 10) if the
technician position occupied by the person has been designated by the
Secretary concerned to be filled only by a non-dual status technician.
(2)The total number of non-dual status technicians in the National
Guard is specified in section 10217(c)(2) of title 10.
* * * *
(e) A technician employed under subsection (a) is an employee of the
Department of the Army or the Department of the Air Force, as the case may
be, and an employee of the United States. However, a position authorized by
this section is outside the competitive service if the technician employed in that
position is required under subsection (b) to be a member of the National Guard.
(f) Notwithstanding any other provision of law and under regulations prescribed
by the Secretary concerned—
(1) a person employed under subsection (a) who is a military technician
(dual status) and otherwise subject to the requirements of subsection (b) who—
(A) is separated from the National Guard or ceases to
hold the military grade specified by the Secretary concerned for
that position shall be promptly separated from military technician
(dual status) employment by the adjutant general of the
jurisdiction concerned; and
(B) fails to meet the military security standards established
by the Secretary concerned for a member of a reserve
component under his jurisdiction may be separated from
employment as a military technician (dual status) and
concurrently discharged from the National Guard by the adjutant
general of the jurisdiction concerned;
(2) a technician may, at any time, be separated from his technician
employment for cause by the adjutant general of the jurisdiction concerned;

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(3) a reduction in force, removal, or an adverse action involving
discharge from technician employment, suspension, furlough without pay, or
reduction in rank or compensation shall be accomplished by the adjutant
general of the jurisdiction concerned;
(4) a right of appeal which may exist with respect to paragraph (1), (2),
or (3) shall not extend beyond the adjutant general of the jurisdiction concerned;
and
(5) a technician shall be notified in writing of the termination of his
employment as a technician and, unless the technician is serving under a
temporary appointment, is serving in a trial or probationary period, or has
voluntarily ceased to be a member of the National Guard when such
membership is a condition of employment, such notification shall be given at
least 30 days before the termination date of such employment.
The Court has considered the other arguments raised by Plaintiff and finds them to be
either unpersuasive or without merit.
IV.

CONCLUSION/ORDER
This Court has federal question jurisdiction over this action, and its removal was

proper. Accordingly, Plaintiff’s Motion to Remand at Docket 16 is hereby DENIED.
IT IS SO ORDERED this 21st day of January, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

ORDER DENYING MOTION TO REMAND AT DOCKET 16
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