The United State Court of Appeals for the Ninth Circuit affirmed a district court’s denial of a motion to remand the litigation to state court. 

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 issue presented is a “narrow one” whether a National Guard JAG is  practicing under federal law

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 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.

The federal interest prevails

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.

Result

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).