955 F.3d 795
9th Cir.2020Background
- Dwight Stirling, a California JAG attorney and California Bar member, sued Lawrence Minasian (a JAG Regional Defense Counsel licensed in Arkansas/Tennessee but not California) in state court alleging unauthorized practice of law.
- Minasian serves as a Title 32 JAG attorney in the California Army National Guard and is supervised, appointed, and evaluated by Title 10 federal officers in the Trial Defense Service (TDS).
- Minasian removed the case to federal court under 28 U.S.C. § 1442(a)(1) (federal-officer removal); Stirling moved to remand, arguing Title 32 service is under state control and thus removal was improper.
- The district court denied remand and dismissed the case on issue-preclusion grounds; Stirling appealed only the remand denial.
- The Ninth Circuit evaluated whether Minasian was a "person acting under" a federal officer, focusing on federal supervision, a causal nexus between federal-directed duties and the challenged conduct, and whether Minasian had a colorable federal defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action is a "civil action" for §1442 removal | Stirling: this is an unauthorized-practice complaint akin to non-civil/discpl. matters not covered by §1442 | Minasian: petition seeks a judicial order under Cal. Bus. & Prof. Code §6126.3, so it is a civil action | Held: It is a "civil action" within §1442(d)(1) and removable |
| Whether Minasian was "acting under" a federal officer for §1442(a)(1) removal | Stirling: Title 32 status places Guardsmen under state control, so Minasian acted under state authority | Minasian: appointed, supervised, rated, and directed by Title 10 federal officers and performed duties authorized by federal regulations | Held: Minasian was "acting under" a federal officer; removal proper |
| Whether a causal nexus exists between federal duties and plaintiff's claims | Stirling: practice in Title 32 is state-controlled; no federal causal nexus | Minasian: his practice was performed pursuant to federal orders, supervision, and federal TDS regulations | Held: Causal nexus satisfied (actions assisted federal duties) |
| Whether Minasian has a colorable federal defense (Supremacy Clause/preemption) | Stirling: state bar determination and state interests control unauthorized-practice claims | Minasian: federal regulations authorize TDS attorneys to practice irrespective of state licensure; Supremacy Clause preemption is colorable | Held: Minasian asserted a colorable federal defense sufficient for removal |
Key Cases Cited
- Bowen v. Oistead, 125 F.3d 800 (9th Cir. 1997) (recognized substantial federal financing/regulation of National Guard service under Title 32)
- Perpich v. Dep't of Def., 496 U.S. 334 (1990) (dual enlistment and federal availability of National Guard for national defense)
- Feres v. United States, 340 U.S. 135 (1950) (Feres doctrine on immunity for service-related claims)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (federal-officer removal statute must be liberally construed)
- Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095 (9th Cir. 2018) (three-part test for federal-officer removal)
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (elements of federal-officer removal analyzed)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (definition of a "colorable" federal defense)
- Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003) (distinguishing when National Guard members serve federal vs. state interests)
- Riggs v. Airbus Helicopters, 939 F.3d 981 (9th Cir. 2019) (extensive federal regulation alone does not always establish federal-officer removal)