Wayson v. Rundell
Order on Motion to Remand to State Court
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARK N. WAYSON,
ORDER AND OPINION
Motion at Docket 51]
I. MOTION PRESENTED
At docket 51, plaintiff Mark Wayson moves to remand this matter to state court.
At docket 53, defendant Linda Rundell opposes the motion. Plaintiff replies at
docket 55. Oral argument was not requested, and it would not assist the court.
This action arises out of Linda Rundell’s alleged finding, as the acting state
director of the Bureau of Land Management (“BLM”), that Mark Wayson “forcibly
committed a crime against BLM employee Carol Hammond.”1 On January 13, 2006,
plaintiff Mark Wayson filed an amended complaint in Superior Court for the State of
Alaska, Fourth Judicial District at Fairbanks, alleging that defendant Rundell damaged
plaintiff’s reputation and violated plaintiff’s constitutional rights by finding that Wayson
Amended Complaint at 2, exh. 2, doc. 6.
committed a crime against a federal employee and by obstructing the investigation of
Wayson’s complaint of misconduct by Robert Schneider, a BLM employee.
In January 2006, former United States Attorney Timothy Burgess certified that
defendant Rundell “was acting within the scope of her employment with the [BLM] at the
time of the allegations in Plaintiff’s Complaint.”2 Defendant Rundell removed this
matter to federal court pursuant to 28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 2679(d)(2).3
In subsequent motion practice, Wayson clarified that his complaint solely asserts a
Bivens4 claim against defendant Rundell in her individual capacity. Consequently, by
order dated May 15, 2006, the court vacated the United State’s Attorney’s certification
that defendant Rundell acted within the scope of her employment.5 Plaintiff now moves
to remand this matter to state court. This court has federal question jurisdiction under
38 U.S.C. § 1331.
Plaintiff requests the court to remand plaintiff’s complaint to state court on the
grounds that defendant Rundell removed this case to federal court based on the United
States Attorney’s certification that Rundell’s actions were within the scope of her
employment with the BLM, and the court subsequently vacated that certification.
Plaintiff’s argument is unavailing. In its order vacating the certification, the court
expressly stated that plaintiff’s Bivens claim “is still properly before this court because
defendant’s notice of removal also listed 28 U.S.C. § 1442(a)(1) as a basis for removal,”
which provides for removal of actions in which an officer of the United States is sued in
his or her individual capacity for any act under color of such office.6 Moreover, it is well
Notice of Removal at 2, doc. 1.
Section 1442(a)(1) provides for removal of cases in which an officer of the United
States is sued in his or her “individual capacity for any act under color of such office.”
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
Doc. 21 at 5.
established that district courts have jurisdiction over Bivens actions. Bivens actions are
“brought against employees of the federal government in their individual capacities and
are brought to redress violations of citizens’ constitutional rights. They are firmly within
the subject matter jurisdiction of the district courts.”7
For the reasons set out above, plaintiff’s motion to remand at docket 51 is
DATED at Anchorage, Alaska, this 27th day of July 2007.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Janicki Logging Co. v. Mateer, 42 F.3d 561, 563 (9th Cir. 1994).
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