the clock now in addition to answer any questions that your honors may have this morning i would like to look over to substance the substantive areas st i would like to add a little bit of context to mr missions practice and explain why it is that he should be a member of the california state bar and secondly i would like to expand upon the the notion that the united states is not a real party in interest to this matter to begin with mr major practices in a state agency the california military department under state law the california military and veterans code in that capacity he serves in the trial defense service or ts in which he represents the national guard service members serving under title thirty two when details pursuant to rule five hundred and two point one do you one of the california manual for courts martial i defend uniformed military personnel subject to adverse action as i'm sorry can i just interrupt with a question about this so i think your point about this is that he should be not considered something other than a federal officer i guess he is the state lawyer and you're trying to argue that it's doesn't use operating in the jag program isn't here at least operating under the direction and control of a federal officer running the jag program  persons deemed qualified by the state staff judge advocate to perform the necessary duties as counsel in state courts martial may be detailed as defense counsel or associate defense counsel in general or special courts martial or as trial courts general and general courts mar let me ask you let me ask you a question though so i mean that's true i believe the record establishes that he is both a jag attorney for the california national guard and a jag attorney for the federal be ordered and in combat or he could be in the obligation is believed colonel rigger said he has a dual obligation and most of the nd obligation is that in supervising him again obligation to make sure that when he is there he is deployed that he is capable of being deployed so and he wants pro hot beach a status and there is some issue about whether or not he ethically comply with the requirements in tennessee i'm the federal officer he's not working for me but i have the obligation to determine whether or not he can practice in federal court so and i believe i believe in the affidavit which is not been disputed by colonel rieger he said that he's out an obligation and didn't talk about his obligations to supervise him in the state courts he talked about his obligation to supervise him because he may be deployed so if in fact he's a member of the tennessee bar and he committed an ethical violation wouldn't that be relevant to his responsibility to supervise him federally so that he was under his supervision as a federal employee or his supervision which he had control of to determine whether or not he could be deployed w but the obligation of the federal government is to determine whether or not they're going to fund them yes so if they're in violations that would preclude their then the state getting funding and one of those obligations i haven't looked at the law but it's got to be because he has a dual obligation he certainly serves in the state court but he also has to comply with federal requirements and one of those federal requirements would be just as  to pro hockey che is to ensure that he is ethically complying with his obligations under an hour in the tennessee ethical requirement isn't that right so in that limited sense not able to make hiring decisions for him they cannot discipline him they cannot fire him they have no direct control well they have the analysts are telling me that regular is wrong they have the obligation then to support  or or provide information where if he has not been complying and that could include for example ethical violations in his his state of in mission here it would be tennessee at least one of them well your honor i would note that mr mason lives in california he practices in california state park and courts in the courts martial his day to day rating is done by the federal  official obviously just to solve a conflict of interest that would arise otherwise since the the his actual employer is still the state of california that is the party that brings the charges in the court martial proceedings so as a defense attorney in order to solve that conflict of interest then yes he is supervised by the by these federal officials and if he does commit an ethical violation he has done so under california law while serving in a california agency as a california state employee there's no reason that the california bar should not be aware of that i notice that i'm a but but they can take it but colonel raider can take that into account in deciding what is his primary determination whether or not he should be deployed because he has to you would say he has no obligation to supervise and with respect to his his state conduct but he still has an obligation to supervise him because he is with the federal national guard and he could be deployed and so if there is any ethical violations tennessee or california he's going to side he has to take that into the situation well your honor that would be i think that confuses his federal recognition with his employment his federal recognition yes the state that he has to maintain membership in both the state national guard and the federal national guard of the united states however he serves in only one capacity at any time well enough there but why are you saying that that colonel regular could not take into account in determining his obligation whether he used to be deployed whether or not he's committed ethical violations state ethical violations sure but if he were to be deployed then he would be federalized under title ted and removed from his title took thirty two do saturday night have to make that determination yes they could take into account everything that was brought to their attention which would be not that he was practicing stick or he was doing something in state title ten but while he serves under title thirty two neither colonel rieger nor any other federal official would have the power to discipline him or to terminate him or to do any sort of what they can or recommend they could recommend it to the state officials but it's the state officials that martial so we've taken up your time i'll give you a minute for about an hour afterward or morning your honour's an assistant united states attorney david pincus and it is my privilege to represent lieutenant colonel lawrence massey in the california army national guard jag officer and the united states of america as real party in interest in two thousand and sixteen l for his state bar rejected major sterlin disappointed by that result major sterling this petition to seize the military law department created by federal law particularly national guard regulation twenty seven desh twelve this would be an unprecedented usurpation of the federal program an appeal may just throwing only challenges the district courts remand order at a minimum though the united states as a real party in interest had an absolute right to federal for for its federal defenses not least of which is that it never consented to this kind of seizure in addition lieutenant colonel  sufficient role and supervision and management by federal officers that he qualified as the person acting under a federal officer and then one more capacity and you should know the plan is counsel and sad that that's not the case because he the key document in this case is a national guard regulation twenty seven dash twelve it talks about how these regardless of state license are these jag officers are permitted to represent clients state court state court cases and state court state excuse me states courts martial are not covered they are subject to the state regulation now in california there is no restriction on the tenant kind of menow see it's participation in state courts martial and that's found in the california refer you to army regulation twenty seven dash one which is i think it was amended maybe last year state that allegations of  suspected violations involving army national guard judge advocate serving as defense counsel will be referred to the chief of the army trial defense services federal officer will foreign army regulation twenty seven this one which is a federal regulation i think this is this distinction that they're trying to make as a state officer versus a state employee rather which he's not he's a soldier and a federal officer i doesn't really work and this court has said that this is a hybrid organization for some purposes they are federal other purposes they're state and this particular program national guard regulation twenty seven s twelve is specifically contemplates that they regardless of state licensure they will participate in these administrative actions but not in state states courts martial unless the state approves it which they did here i think and as i understand what plans counsel the sane is that the focus on the word control and that the government or the governor of the state of california controls all of the jag activities in state court so he is assuming from that that there can't be any supervision i think that is what he's saying but i think it's wrong the governor doesn't take action on state matters but is that the word control i think the words used are supervision evaluation management a direction the word control is the legal term i guess that gets us  major i mean lieutenant colonel nelson was acting under federal offices for purposes of removal now but there's no need for this court to decide the merits of these federal defenses detailed to the state court martial you know the thing that so strange had this argument that they're making is that the state of california state bar doesn't have any concern that there's been an unlawful unlawful practice of law here the state's menu for courts martial doesn't either it's pacifically says detail shall be granted to members of t d s organizations even if they're not members of the state bar in california you don't even have to be for it to be a military judge you don't even have to be a member of the state bar and this judge advocates all agree there is no conflict between national guard two thousand seven hundred and twelve and california love the only person who thinks that there is a conflict is dr sturk dr sterling but in this very day in a footnote in his appellate reply brief i think it's footnote six basically admits that he has no standing is he is the is the gentle advocate general corps that he's serving you know created by the federal statute it is it is why there is this difference between the state judge and a federal judge you can you explain what that there wouldn't be any question here the fact is in total thirty two dollars status is what what brings this case on if i understand the central one central interest of the federal government is you want to be able to get the national guard to serve in an emergency under the federal government yes but they also do training all over the place and if something happens within another state where they're training you need to have flexibility like civility and this is unprecedented idea that you can apply the state statute in the california business protect and professions to the military and to the federal program is  move people around absolutely in oh if unless there's any further questions i would submit the argument that we made in our answer in brief and ask that the court affirm all the orders of the district much so i quickly would like to address the idea that these the federal officials cannot disciplined the state judge advocates that is actually covered in both taylor v jones and association of civilian technicians we united states by the th circuit in the d c circuit respectively both found that the federal officials that men sure that the federal regulations are followed by title thirty two judge advocates cannot discipline  those service members how rd to service members that they cannot discipline their service members in that court and taylor b jones also held that it would elevate form over substance to consider that to be a suit against the united states because those federal officials cannot discipline those letters look at whether or not they can supervise than and he certainly colonel rager has some responsibility if he determine that there was  can recommend he can he can issue and in that sense he has a real vital function i've looked at and i know he doesn't make the final decision yes your honor it is if in fact it's the state staff judge advocate which is the head attorney of the state national guard that would make that determination has the ultimate power over mr missions practice not career but they could take into consideration when colonel rager has said they could take it into consideration but they excuse me they could take his recommendation to consideration but her reader has no authority to make any sort of final determination so colonel rieger says that he assigns him tasks do you deny that that's true  you stop assigning him tasks if you didn't think he was behaving well he could but he could not terminate them ok thank you thank you both sides for the helpful arguments the case is submitted