Dwight Stirling v. Larry Minasian

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.