Dwight Stirling v. Larry Minasian ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWIGHT D. STIRLING, No. 18-55834
Plaintiff-Appellant,
D.C. No.
v. 8:18-cv-00205-
AG-JCG
LARRY MINASIAN, Lt. Col.,
Erroneously Sued As David
Minasian, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Filed April 8, 2020
Before: Mary M. Schroeder and Michelle T. Friedland,
Circuit Judges, and Roslyn O. Silver, * District Judge
Opinion by Judge Schroeder
*
The Honorable Roslyn O. Silver, United States District Judge for
the District of Arizona, sitting by designation.
2 STIRLING V. MINASIAN
SUMMARY **
Removal Jurisdiction / Federal Officer
The panel affirmed the district court’s order denying
Dwight Stirling’s motion to remand his case to California
state court after the defendant removed the case to federal
court.
Stirling is an attorney in the Judge Advocate General
Corps (“JAG”) of the California Army National Guard, and
a member of the California State Bar. Stirling sought to
obtain a ruling that his JAG colleague Lawrence Minasian
was engaged in the unauthorized practice of law because
Minasian was licensed only in states outside of California.
Minasian is an attorney licensed in Tennessee and Arkansas,
who lives in California and serves as a Regional Defense
Counsel in the California Army National Guard’s JAG Trial
Defense Service (TDS).
28 U.S.C. § 1442(a)(1) allows for the removal to federal
court of a “civil action or criminal prosecution” against the
“United States or any agency thereof or any officer (or any
person acting under that officer) of the United States.”
The panel held that Minasian was entitled to remove this
case to federal court as a “person acting under” an officer of
the United States.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
STIRLING V. MINASIAN 3
The panel rejected Stirling’s argument that this was not
a “civil action or criminal prosecution” under 28 U.S.C.
§ 1442(a)(1). First, the panel held that Minasian was a
“person” within the meaning of the statute. Second, the
panel held that there was a causal nexus between Stirling’s
claims and Minasian’s actions taken pursuant to a federal
officer’s directions, where Minasian was directly supervised
by a federal Title 10 officer who served as the Chief of the
Army National Guard Trial Defense Service, and Minasian’s
practice reflected the type of federal supervision and
management envisioned by the applicable federal
regulations and guidance. Third, the panel held that
Minasian raised a colorable federal defense under the
Supremacy Clause whereby Minasian was appointed and
practiced under a federal regulatory scheme that preempted
a claim by a private individual that would have the effect of
invalidating those federal regulations in states, like
California, that do not require all TDS attorneys to become
members of the State Bar.
COUNSEL
Corey Lovato (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
David Pinchas (argued), Assistant United States Attorney;
David M. Harris, Chief, Civil Division; Nicola T. Hanna,
United States Attorney; United States Attorney’s Office, Los
Angeles, California; for Defendant-Appellee.
4 STIRLING V. MINASIAN
OPINION
SCHROEDER, Circuit Judge:
Dwight Stirling is an attorney in the Judge Advocate
General Corps (JAG) of the California Army National
Guard. He is a member of the California State Bar, but not
all of his colleagues are. Applicable federal law requires
only membership in good standing of the bar of any state,
territory, or the District of Columbia to practice as a JAG
attorney in limited ways, including (as relevant to this case)
when those attorneys defend members of the California
Army National Guard in administrative actions,
investigations, or inquiries. See, e.g., National Guard
Regulation (“NGR”) 27-12 § 2-1. The California Bar has
concluded, in response to complaints from Stirling, that such
practice is also consistent with California law. Nevertheless,
Stirling has tried unsuccessfully for a number of years to
obtain a ruling that his JAG colleagues must also be
members of the California Bar. See In re Lusk, No. SACV
16-0930 AG (JCGx), 2016 WL 4107671 (C.D. Cal. July 30,
2016), appeal dismissed sub nom. Stirling v. Lusk, No. 16-
56199, 2017 WL 7733073 (9th Cir. Nov. 16, 2017).
Stirling now appeals the district court’s order denying his
motion to remand the case to California state court, where he
wants to pursue his claim that a JAG colleague, defendant
Lawrence Minasian, is engaged in the unauthorized practice
of law because Minasian is licensed only in states outside of
California. Minasian, represented by the United States
Attorney, removed Stirling’s action against him to federal
court.
The precise issue we must decide is a narrow one.
28 U.S.C. § 1442(a)(1) allows for the removal to federal
court of “[a] civil action or criminal prosecution” against
STIRLING V. MINASIAN 5
“[t]he United States or any agency thereof or any officer (or
any person acting under that officer) of the United States.”
The issue presented in this appeal is whether Minasian was
entitled to remove this case to federal court as a “person
acting under” an officer of the United States.
The issue has been framed by the background of these
proceedings. Minasian is an attorney licensed in Tennessee
and Arkansas. He lives in California and serves as a
Regional Defense Counsel in the California Army National
Guard’s JAG Trial Defense Service (TDS). In response to a
complaint from Stirling, the California State Bar previously
determined that, as a National Guard attorney, Minasian is
not engaged in the unauthorized practice of law in
California. Nonetheless, Stirling filed this action against
Minasian in state court, seeking a writ seizing Minasian’s
law practice for having engaged in the unauthorized practice
of law. Minasian removed the case to federal court on the
basis that this case challenges Minasian’s actions taken
while acting under an officer of the United States, and
moved to dismiss. Stirling sought to remand the case back
to state court, contending that Minasian is not entitled to
removal under 28 U.S.C. § 1442(a)(1), because when
Minasian is serving in the California Army National Guard
he is subject to state laws and state control. See NGR 500-5
§ 10-3(a).
The district court denied Stirling’s motion to remand and
then dismissed the entire case on the ground of issue
preclusion, reasoning that the same issues had already been
resolved against Stirling in his earlier, similar case against a
different JAG colleague. On appeal, Stirling challenges only
the denial of remand. While Stirling’s reasons for wanting
Minasian declared unqualified to serve as a JAG attorney in
California are not clear, Stirling’s desire to have the dispute
6 STIRLING V. MINASIAN
resolved in California state court is apparent. He cannot
achieve this, however, because Minasian was “acting under”
an officer of the United States, so removal to federal court
was proper.
Members of the California Army National Guard, like
their counterparts in other states, serve both the state in
which they are located, as well as the federal government
when needed. See Bowen v. Oistead, 125 F.3d 800, 802 n.1
(9th Cir. 1997). Members simultaneously enlist in the state
National Guard and in the National Guard of the United
States. See Perpich v. Dep’t of Def., 496 U.S. 334, 345
(1990) (describing dual enlistment provisions enacted after
WWI). When members are called into federal active duty
status, they serve pursuant to Title 10 of the United States
Code (“Armed Forces”), which pertains to all active duty
members of the armed services of the United States. See
10 U.S.C. § 101(d)(1) (defining “active duty”).
When members are not on federal active duty, they are
in federal reserve status. Bowen, 125 F.3d at 804 n.4. One
form of federal reserve status is service in a “hybrid” status
pursuant to Title 32 of The United States Code (“National
Guard”), in which members provide military support as state
National Guard members under state control while also in
the service of the federal government and funded by the
federal government. See 10 U.S.C. § 101(d)(5) (defining
“full-time National Guard duty” service pursuant to
provisions of Title 32); Stirling v. Brown, 227 Cal. Rptr. 3d
645, 651 (Ct. App. 2018) (“Title 32 status is a hybrid in that
a National Guard member operates under state active duty
and under state control but in the service of the federal
government. While under title 32 status, the National Guard
service member is on state active duty funded by the federal
government, but authorized, organized, implemented and
STIRLING V. MINASIAN 7
administered by the state.”). As we explained in Bowen, the
Title 32 “hybrid” program is “authorized by federal statute
and [was] created to provide full-time military support
personnel to assist in the administration of the National
Guard of the various states.” 125 F.3d at 802 (citation
omitted). Both Stirling and Minasian are JAG officers and
Title 32 Guard members, serving pursuant to 32 U.S.C.
§ 502(f).
Aside from federal active duty pursuant to Title 10 and
hybrid duty pursuant to Title 32, a member of a state
National Guard may also serve in a non-hybrid form of state
active duty. Such members act “under state control for state
purposes” and—unlike those on Title 32 hybrid duty—“at
state expense.” Brown, 227 Cal. Rptr. 3d at 650 (quoting
NGR 500-5 § 10-2(a)). This case does not involve anyone
serving in this capacity.
Title 32’s introductory sections epitomize the hybrid
nature of the National Guard. The initial section establishes
that National Guard members serving under Title 32 are
trained and organized at the expense of the federal
government in order to provide for the common defense,
pursuant to Article I, Section 8, Clause 16 of the
Constitution. 32 U.S.C. §§ 101(4), 101(6). The next section
explains that the Army National Guard exists to ensure that
the strength of the United States Army be maintained at all
times and that the Army National Guard must be made
available for active duty service during emergencies. Id.
§ 102. That purpose is mirrored in Title 10’s description of
the Army Reserve. See 10 U.S.C. § 10102 (the Army
reserve is “to provide trained units and qualified persons
available for active duty in the armed forces, in time of war
or national emergency”).
8 STIRLING V. MINASIAN
National Guard regulations embody the hybrid nature of
Title 32 service. The key regulation is NGR 500-5 § 10-3(a).
It provides that Title 32 members are “employed in the
service of the United States for a primarily federal purpose,”
but while in reserve status under Title 32 they operate “under
the command and control of the state and thus in a state
status.” NGR 500-5 § 10-3(a) (quotation marks omitted).
Subsection (c) of the regulation provides historical examples
of Title 32 National Guard members ordered to emergency
federal duty. National Guard members were needed to
provide “security at many of the nation’s airports after
September 11, 2001,” and to participate “in Hurricanes
Katrina and Rita-related disaster relief operations.” Id. § 10-
3(c).
The case law therefore recognizes that when called into
active federal service, National Guard members are under
federal control, but when they are in reserve status under
Title 32, they operate under state control. See, e.g., Clark v.
United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)
(“[M]embers of the National Guard only serve the federal
military when they are formally called into the military
service of the United States. At all other times, National
Guard members serve solely as members of the State militia
under the command of a state governor.”); United States v.
Hutchings, 127 F.3d 1255, 1258 (10th Cir. 1997) (same);
Knutson v. Wis. Air Nat’l Guard, 995 F.2d 765, 767 (7th Cir.
1993) (same).
Accordingly, Stirling’s major argument in this case is
that because National Guard members in reserve status are
under state control, Minasian’s practice of law must be
solely a matter of state interest, with his appointment and
practice traceable only to state law and not to any federal
authority or federal officials. We disagree.
STIRLING V. MINASIAN 9
We considered the status of Title 32 National Guard
members in Bowen, 125 F.3d 800. The issue was whether
immunity under the Feres doctrine barred the suit of a Title
32 Alaska Air National Guard member against the Alaska
National Guard, among other defendants. Id. at 802–03.
The Feres doctrine prohibits members of the armed services
from suing the federal government for injuries that resulted
from their duties. Feres v. United States, 340 U.S. 135, 146
(1950). The plaintiff sought damages for, among other
things, wrongful termination and contended that the Feres
doctrine could apply only if he had been serving the federal
government in Title 10 active duty status. Bowen, 125 F.3d
at 804. We held Feres immunity applied, because of state
National Guards’ “integral role” in “the nation’s defense
force and the substantial degree to which the state National
Guards are financed, regulated, and controlled by the federal
government even when not called into active federal
service.” Id. at 805.
The issue in this case involves removal. Removal was
proper if this is “[a] civil action or criminal prosecution” and
Minasian demonstrated he was “acting under” an officer of
the United States. See 28 U.S.C. § 1442(a)(1). As an initial
matter, we reject Stirling’s argument that this is not a “civil
action or criminal prosecution.” As used in 28 U.S.C.
§ 1442, that term “include[s] any proceeding . . . to the
extent that in such proceeding a judicial order . . . is sought
or issued.” Id. § 1442(d)(1). Here, Stirling filed a petition
“asking the Orange County Superior Court to file an
application with the Fresno County Superior Court seeking
assumption by the Fresno County Superior Court over
Lawrence Minasian’s practice of law” pursuant to California
Business & Professions Code section 6126.3. That statute,
one of California’s provisions enforcing the ban on the
unauthorized practice of law, describes a process by which a
10 STIRLING V. MINASIAN
superior court, in the county where a person is practicing law
without a license, can assume jurisdiction over that person’s
practice. See Cal. Bus. & Prof. Code § 6126.3(e). Stirling’s
invocation of this statute shows that he ultimately seeks, at a
minimum, a judicial order assuming jurisdiction over
Minasian’s practice. See id.
Stirling relies on statements in unrelated case law that
describe “disciplinary proceedings heard by the [California]
State Bar Court” as “sui generis, neither civil nor criminal in
character.” See In re Rose, 993 P.2d 956, 440 (Cal. 2000)
(quoting Yokozeki v. State Bar, 521 P.2d 858, 865 (Cal.
1974)). But, even if that could mean that some attorney
disciplinary proceedings adjudicated by the California State
Bar Court are not covered by the definition of “civil action
or criminal prosecution” in 28 U.S.C. § 1442—an issue we
do not decide—Stirling’s argument fails because this action
does not involve a disciplinary proceeding before the
California State Bar Court. Cf. In re Commonwealth’s
Motion to Appoint Counsel Against or Directed to Def. Ass’n
of Phila., 790 F.3d 457, 467 (3d Cir. 2015) (motions by the
Commonwealth of Pennsylvania seeking to disqualify their
opposing counsel “are not attorney disciplinary
proceedings”).
As to whether Minasian was “acting under” a federal
officer, this statutory language “must be ‘liberally
construed’” in favor of removal. Watson v. Philip Morris
Cos., 551 U.S. 142, 147 (2007) (quoting Colorado v. Symes,
286 U.S. 510, 517 (1932)). There is a three-part inquiry
when assessing the propriety of a removal under this
provision. Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099
(9th Cir. 2018). That test requires that the “defendant in a
state court action . . . ‘demonstrate that (a) it is a person
within the meaning of the statute; (b) there is a causal nexus
STIRLING V. MINASIAN 11
between its actions, taken pursuant to a federal officer’s
directions, and plaintiff’s claims; and (c) it can assert a
colorable federal defense.’” Id. (quoting Durham v.
Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.
2006)). Each part of this test is satisfied here.
First, as Stirling does not dispute, Minasian is a “person”
within the meaning of the statute. See 1 U.S.C. § 1 (noting
“person” includes “individuals”).
Second, there is a causal nexus between Stirling’s claims
and Minasian’s actions pursuant to a federal officer’s
directions. Our inquiry focuses on whether Minasian was
involved in “an effort to assist, or to help carry out, the duties
or tasks of [a] federal superior.” Watson, 551 U.S. at 152
(emphasis omitted). The relationship between someone
acting under a federal officer and the federal officer
“typically involves ‘subjection, guidance, or control.’”
Fidelitad, 904 F.3d at 1099 (quoting Watson, 551 U.S.
at 151). “[E]xtensive ‘federal regulation alone’” is
insufficient. Riggs v. Airbus Helicopters, 939 F.3d 981, 987
(9th Cir. 2019) (quoting Fidelitad, 904 F.3d at 1100),
petition for cert. filed, No. 19-1158 (U.S. Mar. 20, 2020).
Here, the record reflects that Minasian was directly
supervised by Colonel Timothy Rieger, a federal Title 10
officer who serves as the Chief of the Army National Guard
Trial Defense Service. There is no dispute that Colonel
Rieger is an officer of the United States. And Colonel
Rieger’s declaration establishes that Minasian was
practicing law in California—and doing so without being a
member of the California Bar—pursuant to his orders from
federal superiors including Colonel Rieger. After explaining
that he serves under federal orders pursuant to Title 10,
Colonel Rieger stated,
12 STIRLING V. MINASIAN
I am LTC Minasian’s direct supervisor. I rate
his performance and oversee his day to day
work and assign him tasks. I am also required
to ensure that he conforms to the military
rules of professional responsibility . . . . No
State officer conducts such oversight over
LTC Minasian’s practice.
Rieger Decl. ¶ 6.
Minasian’s practice reflects the type of federal
supervision and management envisioned by the applicable
federal regulations and guidance. Regional Defense Counsel
in TDS, including Minasian, are JAG attorneys who provide
legal defense services to Title 32 National Guard members.
See NGR 27-12 § 1-1. Title 10 federal officers appoint TDS
Regional Defense Counsel. Dep’t of the Army, Legal
Support to the Operational Army, Field Manual 1-04 App’x
B § B-2 (2013) (“FM 1-04”). Additionally, Title 10 officers
supervise and evaluate TDS attorneys. National Guard
regulations describe that the Chief of the Army National
Guard TDS, who is a Title 10 federal officer, is responsible
for “[t]echnical supervision, management, direction, and
legal defense training for all members of the [Army National
Guard] TDS while in a Title 32 . . . status.” NGR 27-12 § 1-
4(e)(2).
National Guard regulations also provide that TDS
attorneys like Minasian may serve “a Federal function not
subject to regulation by the States.” NGR 27-12 § 2-2(a).
As a Regional Defense Counsel representing National Guard
members in adverse administrative actions, investigations,
or inquiries, Minasian does not appear in California civil
court or any other state court, and he performs legal work
pursuant to federal regulation. See generally NGR 27-12.
STIRLING V. MINASIAN 13
And, crucially, this case presents a challenge to actions that
directly applicable federal regulations authorized Minasian
to perform “regardless of” his “states of licensure.” See id.
§ 2-1. For these reasons, the causal nexus requirement is
met.
Third, Minasian has raised a colorable federal defense
under the Supremacy Clause. As discussed, Minasian was
appointed by and reports to a federal officer and is permitted
by federal regulation to practice law, in a specific and limited
capacity, without becoming a member of the California Bar.
Minasian has a colorable defense that this federal regulatory
scheme preempts a claim by a private individual that would
have the effect of invalidating those federal regulations in
states, like California, that do not require all TDS attorneys
to become members of the California Bar. We do not
express a view on whether this defense is “in fact
meritorious”; we hold only that it is “colorable.” See Leite
v. Crane Co., 749 F.3d 1117, 1124 (9th Cir. 2014). We also
express no view on whether a similar defense would be
colorable against a claim brought in a state that does
expressly require membership in its bar as a condition of
JAG service in that state’s National Guard. See, e.g., Ariz.
Rev. Stat. § 26-1006(A)-(B); Nev. Rev. Stat. § 412.264(1)-
(2).
The provisions of 28 U.S.C. § 1442(a)(1) allow for
removal of an action against the United States, an officer of
the United States, or an individual acting under such U.S.
officer. As the relevant laws, regulations, and record in this
case all demonstrate, a Title 10 federal officer supervises
Minasian’s work pursuant to federal regulation. Thus, a
federal forum must be available to Minasian to defend
against this action.
14 STIRLING V. MINASIAN
Because Minasian properly removed this action as
someone “acting under” a federal officer, we need not decide
whether the United States itself is appropriately viewed as a
“real party in interest” defendant to the case, or whether the
case was removable under the statute that is specific to
removal by members of the armed forces of the United
States, 28 U.S.C. § 1442a.
The district court correctly denied Stirling’s motion to
remand the matter to California state court, because
Minasian was “acting under” a federal officer within the
meaning of 28 U.S.C. § 1442(a)(1).
AFFIRMED.