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Date: 01-07-2018

Case Style: Dwight D. Stirling v. Governor Edmund G. Brown, Jr.

Case Number: G053998

Judge: Fybel, Acting P.J.

Court: California Court of Appeals Fourth Appellate District on appeal from the Superior Court, Riverside County

Plaintiff's Attorney: Corey Lovato

Defendant's Attorney: Xavier Becerra, Chris A. Knudsen, Fiel D. Tigno and Michael D. Gowe

Description: The California Military Whistleblower Protection Act, Military and
Veterans Code section 56 (Section 56), affords certain rights and protections to service
members of the California National Guard who face actual or threatened adverse
personnel actions in retaliation for reporting waste, fraud, abuse of authority, violation of
law, or threats to the public health and safety. A service member may file an allegation
that a prohibited personnel action has been taken. The allegation is filed with the state
inspector general, who must expeditiously determine whether there is sufficient evidence
to conduct an investigation and, if so, expeditiously conduct an investigation and prepare
a report on the results.
Under Section 56, subdivision (e) (Section 56(e)), if the inspector general is
not outside the immediate chain of command of both the service member submitting the
allegation and the individual or individuals alleged to have taken the challenged
personnel action, then the inspector general must refer the allegation to the Chief of the
National Guard Bureau and the Governor. At issue in this case is the scope of the
Governor’s responsibilities upon receiving an allegation referred by the inspector general.
Major Dwight D. Stirling, a part-time judge advocate in the California
National Guard, brought a petition for writ of mandate in the trial court to compel
Governor Edmund G. Brown, Jr. (the Governor) to act on Stirling’s whistleblower
allegation in accordance with Section 56, subdivisions (d) and (f)(1). Stirling argues that
Section 56(e) requires the Governor to undertake the same preliminary determination,
investigation, and reporting that is required of the inspector general under Section 56,
subdivisions (d) and (f)(1). The Attorney General, representing the Governor, argues
Section 56(e) does not require the Governor to take any particular action on a
whistleblower allegation and permits the Governor to defer to the Chief of the National
Guard Bureau, who is a federal military officer responsible for heading the federal
agency that controls the United States Army National Guard.
3
The trial court sustained without leave to amend the Attorney General’s
demurrer to Stirling’s amended petition for writ of mandate. Because we are reviewing a
judgment following an order sustaining a demurrer without leave to amend, our analysis
is necessarily limited to the pleadings and matters of which we may take judicial notice.
(Santa Ana Police Officers Assn. v. City of Santa Ana (2017) 13 Cal.App.5th 317, 323.)
We conclude Section 56 is unambiguous, and its plain language does not
require the Governor to undertake the procedures required of the inspector general in
response to a whistleblower allegation. We also conclude, based on the appellate record,
that Section 56 does not violate California’s equal protection clause because in all cases a
whistleblower allegation is referred to an impartial decision maker who has discretion
whether to undertake a full investigation.
FACTS AND PROCEDURAL HISTORY
I.
Allegations of the Writ Petition
Stirling alleged the following facts in his amended petition for writ of
mandate.
Stirling is employed by the California Military Department (CMD) as a
part-time judge advocate, which is a military attorney. He serves in the California
National Guard and holds the rank of major. He has consistently received superior
performance evaluations and “the highest possible marks for rectitude over the course of
his 15-year career in the CMD.”
In March 2014, Stirling became aware that nonattorneys were practicing
law in the CMD’s legal department. He alleged: “After alerting senior judge advocates
in the CMD about the matter, [Stirling] learned that the senior judge advocates he alerted
had themselves authorized the non-attorneys’ practice of law in the first place. When the
4
illegal activity was not stopped, [Stirling] discharged his ethical duty by reporting the
matter to the State Bar in April of 2014.”
In October 2014, the CMD retaliated against Stirling by initiating a
“secretive professional responsibility investigation” against him “while simultaneously
reassigning him to a remote facility.” The CMD allegedly directed Stirling to work alone
and not to have contact with “his legal colleagues.” More than 20 months after the
investigation was initiated, Stirling had not been told of the nature of the allegations,
interviewed by an investigator, or allowed to present evidence.
The CMD “flagged” Stirling. Flagging is “an unfavorable personnel action
that bars him from being promoted, receiving awards, attending school, and many other
administrative benefits.”1
Stirling alleged he has not been able to receive favorable
personnel actions in that: “He cannot . . . take the courses necessary for promotion, be
promoted, or receive awards. [Stirling]’s career progression has been stunted, placed in
legal limbo. He has sustained—and continues to sustain—irreparable damage to his
career progression, financial compensation, and professional reputation as a result of the
retaliation.”
In January 2015, Stirling filed a whistleblower allegation under the
California Military Whistleblower Protection Act. When Stirling filed his whistleblower
allegation, his supervisor was Colonel David Kauffman, a senior judge advocate in the
CMD. Kauffman also was the inspector general, and, therefore, he referred the
whistleblower allegation to the Governor pursuant to Section 56(e). The Governor has

1
The applicable federal army regulations define the word “Flag” as “the suspension of
favorable personnel actions.” (U.S. Dept. of Army Reg., No. 600-8-2 (2012) § 1-1.) The
Army Regulations state that “[a] properly imposed Flag” prohibits certain personnel
actions, including appointment, reappointment, reenlistment, transfer, promotion in
grade, and recommendation for and receipt of awards and decorations. (Id., No. 600-8-2,
§ 3-1(a), (d) & (e).)
5
not performed any of the acts the inspector general would be required to perform in
investigating a whistleblower allegation under Section 56.
II.
Handling of Stirling’s Whistleblower Allegation
The inspector general also referred Stirling’s whistleblower complaint to
the Chief of the National Guard Bureau, who in turn referred the complaint to the
Department of the Army Inspector General. Investigation by the Department of the
Army Inspector General was ongoing as of February 2016.
PROCEDURAL HISTORY
Stirling filed his petition for writ of mandate in the Superior Court in
December 2015 and filed an amended petition in June 2016. As relief, the amended
petition sought a writ of mandate commanding the Governor “to conduct the ministerial
steps with regard to [Stirling]’s whistleblower complaint that the [inspector general] must
perform in similar circumstances.” In the event the court construed Section 56,
subdivisions (d) and (f)(1) as not requiring gubernatorial action, Stirling asked the court
to declare Section 56 to be in violation of the equal protection clause of the California
Constitution.
The trial court sustained without leave to amend the Governor’s demurrer
to the amended petition. The court concluded that Stirling did not allege any failure to
perform a mandatory ministerial duty or an equal protection violation. In a minute order,
the court stated: “[Stirling] concedes that the Governor has received and reviewed the
complaint, which is all § 56(e) requires. As for equal protection, every complaint is
referred to a neutral fact-finder. If anything, [Stirling] is in a better position than other
members of the National Guard because the Department of the Army Inspector General
must comply with all seven steps of Army Regulation 20-1, whereas the [inspector
general] has to consider an investigation in accordance with steps 1-3 of Army
Regulation 20-1.”
6
Stirling filed a notice of appeal before entry of judgment. In response to
our notice of possible dismissal for lack of jurisdiction, Stirling submitted to us a signed
judgment of dismissal entered in December 2016.
DISCUSSION
I.
Request for Judicial Notice
The Attorney General has filed a request for judicial notice of six exhibits.
Exhibits B, E, and F are copies of certain United States Department of the Army
Regulations, and Exhibit D is a copy of National Guard Regulations, No. 500-5, as
approved August 18, 2010 (NGR No. 500-5). The request is granted as to Exhibits B, D,
E, and F. (Evid. Code, § 452, subd. (b); Cal Rules of Court, rule 8.252(a).)
Exhibit A is a copy of a declaration filed in a federal court action,
Dwight D. Stirling v. California Military Dept. (C.D. Cal.) No. 8:16-cv-
00436-JVS-DFM. Although we grant the request for judicial notice of the declaration
(Evid. Code, § 452, subd. (d)), we cannot take judicial notice of the matters asserted in it
or accept them as true (Board of Pilot Commissioners v. Superior Court (2013) 218
Cal.App.4th 577, 597). Exhibit C, which is a transcript of the hearing on the Attorney
General’s demurrer to Stirling’s amended petition in this matter, is not the proper subject
of judicial notice. The request is denied as to Exhibit C.
II.
The National Guard: Background Law
The National Guard is an unusual military force because it serves both as
the militias for the 50 states, the District of Columbia, Puerto Rico, Guam, and the
American Virgin Islands, and as the reserve force for the United States Army and Air
Force. “The [National] Guard occupies a distinct role in the federal structure that does
not fit neatly within the scope of either state or national concerns. In each state the
National Guard is a state agency, under state authority and control. At the same time,
7
federal law accounts, to a significant extent, for the composition and function of the
Guard. Accordingly, the Guard may serve the state in times of civil strife within its
borders while also being available for federal service during national emergencies.”
(Knutson v. Wisconsin Air Nat. Guard (7th Cir. 1993) 995 F.2d 765, 767, cert. den.
(1993) 510 U.S. 933.)
All persons enlisting in a state National Guard/militia simultaneously enlist
in the United States National Guard. (Perpich v. Department of Defense (1990) 496 U.S.
334, 345.) “In the latter capacity they became a part of the Enlisted Reserve Corps of the
Army, but unless and until ordered to active duty in the Army, they retain their status as
members of a separate State Guard unit.” (Ibid.) “[U]ntil they are called into active
federal service, the various state National Guards are governed not by the federal
government, but by the individual states.” (Holmes v. California Nat. Guard (2001) 90
Cal.App.4th 297, 317 (Holmes).)
The Governor and his or her appointee, the Adjutant General, command the
National Guard in each state. The United States Department of Defense, the Secretaries
of the Army and the Air Force, and the National Guard Bureau prescribe regulations and
issue orders to organize, discipline, and govern the National Guard. (32 U.S.C. § 110;
see Charles v. Rice (1st Cir. 1994) 28 F.3d 1312, 1315.) “Through the Department of
Defense’s National Guard Bureau, the Department of the Army extends federal
recognition to state National Guard units that comply with federal criteria; it may
withdraw recognition if a unit ceases to comply. [Citation.] These state National Guard
units are known as the Army National Guard. [Citation.] Together, all federally
recognized state units comprise one of the reserve components of the Army, known as the
Army National Guard of the United States.” (In re Sealed Cases (D.C. Cir. 2009) 551
F.3d 1047, 1048.)
The California National Guard and the Office of the Adjutant General are
included within the CMD. (Mil. & Vet. Code, §§ 50, 51.) The Governor is the
8
commander in chief of the California National Guard. (Cal. Const., art. V, § 7.) The
Adjutant General is the head of the CMD. (Mil. & Vet. Code, § 52.)
The President of the United States is the commander in chief of the
National Guard when under active federal duty status. (U.S. Const., art. II, § 2, cl. 1.)
The Chief of the National Guard Bureau is the federal military authority who is
responsible for the organization and operation of the National Guard Bureau. (10 U.S.C.
§ 10501(a), (b).) The Chief of the National Guard Bureau is “the channel of
communications on all matters pertaining to the National Guard, the Army National
Guard of the United States, and the Air National Guard of the United States between
(1) the Department of the Army and Department of the Air Force, and (2) the several
States.” (Id., § 10501(b).)
The dual function of the National Guard and dual enlistment by its
members mean a service member may serve in any one of three statuses: (1) state active
duty status, (2) Title 10 (active federal duty) status, or (3) Title 32 (hybrid) status.
State active duty has been explained as follows: “States are free to employ
their National Guard forces under state control for state purposes and at state expense as
provided in the state’s constitution and statutes. As such service is performed in
accordance with state law, National Guard members performing this type duty are said to
be in state active duty status. National Guard Soldiers and Airmen serving in a state
active duty status are under the command and control of the Governor and the state or
territorial government. State governments bear all of the associated costs of National
Guard members performing duties in a state active duty status. [¶] . . . National Guard
members, operating in a state active duty status, perform duties authorized by state law
that may include domestic law enforcement support and mission assurance operations.
National Guard units performing such duties are subject to compliance with state
financial and monetary policies, and are paid with state funds in accordance with state
laws.” (NGR No. 500-5, § 10-2(a) & (b).)
9
Title 10 status means the National Guard member has been called into
active federal duty under the command of the President of the United States. NGR 500-5
explains: “The War Powers Clause of the Constitution grants the federal government the
authority to mobilize and deploy National Guard units and personnel for federal missions
both at home and throughout the world. Such federal service is performed under the
authority of Title 10 U.S. Code, with command and control resting solely with the
President and the Federal Government. When employed at home or abroad in Title 10
duty status, National Guard forces are relieved of duties as a member of their state
National Guard, released from all state control, and become elements of the Reserve
Component of the federal military force as members of the Army National Guard of the
United States (ARNGUS) or the Air National Guard of the United States (ANGUS).
National Guard units and members in a Title 10 duty status are members of the
Department of Defense and subject to compliance with related financial policies and
regulations.” (NGR No. 500-5, § 10-4(a).)
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
administered by the state. (Holmes, supra, 90 Cal.App.4th at p. 317.) “This provision for
state forces to operate in the service of the Federal Government is unique to the National
Guard and is codified under the authority of Title 32 U.S. Code. When conducting
domestic law enforcement support and mission assurance operations under the authorities
of Title 32, National Guard members are under the command and control of the state and
thus in a state status, but are paid with federal funds. Under Title 32, the Governor
maintains command and control of National Guard forces even though those forces are
being employed ‘in the service of the United States’ for a primarily federal purpose.”
(NGR No. 500-5, § 10-3(a).)
10
III.
Section 56(e) by Its Plain Language Does Not Require the
Governor to Undertake the Procedures Required
of the Inspector General in Response
to a Whistleblower Allegation.
Section 56, in broad terms, does three things. First, Section 56, subdivision
(b)(1)(A) prohibits a person from restricting any CMD member from communicating
with a member of Congress, the Governor, a member of the Legislature, or any state or
federal inspector general. Second, section 56, subdivision (b)(2) prohibits a person from
taking or threatening to take an unfavorable personnel action, or withholding or
threatening to withhold taking a favorable personnel action, against a CMD member for
making a communication to “any person,” including, but not limited to, a member of
Congress, the Governor, a member of the Legislature, or any state or federal inspector
general.
Third, and most relevant here, subdivisions (c) through (g) of Section 56 set
forth the procedures and rights by which allegations made by CMD members for
violations of Section 56, subdivision (b) are to be investigated and reported upon.
Subdivision (c) provides: “Notwithstanding any other law, if a member of the
department submits to an inspector general an allegation that a personnel action
prohibited by paragraph (2) of subdivision (b) has been taken or has been threatened to be
taken against the member of the department, the inspector general shall take action as
provided by subdivision (d).”
2
Section 56, subdivision (d) imposes on an inspector general receiving an
allegation under subdivision (c) the obligation to do all of the following:

2
The inspector general is responsible for investigating complaints or allegations
regarding violations of the law, gross mismanagement, gross waste of funds, abuse of
authority, and substantial and specified danger to public health or safety. (Mil. & Vet.
Code, § 55, subd. (h)(1).)
11
“(1) Expeditiously determine whether there is sufficient evidence, in accordance with
federal regulations governing federal inspectors general, to warrant an investigation of
the allegation. [¶] (2) Conduct a separate investigation of the information that the
member making the allegation believes constitutes evidence of wrongdoing under both of
the following circumstances: [¶] (A) There has not been a previous investigation. [¶]
(B) There has been a previous investigation but the inspector general determines that the
previous investigation was biased or otherwise inadequate. [¶] (3) Upon determining
that an investigation of an allegation is warranted, expeditiously investigate the
allegation.”
After the completion of the investigation, the inspector general must submit
a report on the results to the Adjutant General within specified time frames. (§ 56,
subd. (f)(1).)
Stirling submitted his Section 56 whistleblower allegation to the inspector
general who, in the usual course of events, would have handled the allegation in the
manner prescribed by Section 56, subdivisions (d) and (f)(1). The inspector general was
not, however, outside Stirling’s immediate chain of command and therefore referred the
allegation to the Chief of the National Guard Bureau and the Governor pursuant to
Section 56(e).3
The Governor referred Stirling’s whistleblower allegation to the Chief of
the National Guard Bureau.
Stirling argues that Section 56(e) must be interpreted as requiring the
Governor to undertake an investigation and prepare a report in accordance with Section
56, subdivisions (d) and (f)(1); that is, when a whistleblower allegation is referred to the
Governor, he or she steps into the shoes of the inspector general. The Attorney General

3
The full text of Section 56(e) is: “If the inspector general is not outside the immediate
chain of command of both the member submitting the allegation and the individual or
individuals alleged to have taken a personnel action prohibited by paragraph (2) of
subdivision (b), the inspector general shall refer the allegation to the Chief of the
National Guard Bureau and the Governor.”
12
argues that under the plain language of Section 56(e) the Governor was not required
undertake an investigation into Stirling’s whistleblower allegations.
In a matter involving statutory interpretation, our fundamental task is to
discern the Legislature’s intent in order to effectuate the law’s purpose. (People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141; Fluor Corp. v. Superior Court (2015) 61 Cal.4th
1175, 1198 (Fluor).) We approach this task by first examining the statute’s words,
giving them their ordinary, usual, and commonsense meanings. (People v. Gonzalez,
supra, 2 Cal.5th at p. 1141; Fluor, supra, 61 Cal.4th at p. 1198.) We examine the
language of the entire statute and related statutes and harmonize the terms when possible.
(People v. Gonzalez, supra, 2 Cal.5th at p. 1141.) The plain meaning of the statute
controls if the statutory language is unambiguous. (Fluor, supra, 61 Cal.4th at p. 1198.)
If the statutory language is reasonably susceptible to more than one interpretation, then
extrinsic aids, such as statutory purpose, legislative history, and public policy, may be
considered to determine legislative intent. (Ibid.)
Section 56(e) states “[i]f the inspector general is not outside the immediate
chain of command” then “the inspector general shall refer the allegation to the Chief of
the National Guard Bureau and the Governor.” Section 56(e) says nothing more about
the Governor’s responsibilities. Section 56(e) does not impose any obligation on the
Governor, and cannot impose any obligation on the Chief of the National Guard Bureau,
who is a federal official. Section 56(e) says nothing about what the Governor is supposed
to do with a whistleblower allegation. For example, Section 56(e) does not say the
Governor, on receipt of an allegation, “shall proceed in accordance with subdivisions (d)
and (f)(1)” or like language. Subdivisions (d) and (f)(1) of Section 56 only set forth what
the inspector general must do upon receiving a whistleblower allegation.
We see nothing ambiguous about Section 56(e) standing alone or as part of
Section 56 as a whole. If the Legislature had intended to impose duties upon the
13
Governor under Section 56(e), it easily could have done so, as it did in subdivisions (d)
and (f)(1) of Section 56.
Stirling does not assert an ambiguity in any particular word or phrase of
Section 56. He is not urging us to accept a definition or construction of a particular word
or phrase but is asking us to construe Section 56 by adding terms to it. This distinction is
important. Our task when construing a statute is “simply to ascertain and declare what is
in terms or in substance contained therein, not to insert what has been omitted.” (Code
Civ. Proc., § 1858.) “It is . . . against all settled rules of statutory construction that courts
should write into a statute by implication express requirements which the Legislature
itself has not seen fit to place in the statute.” (In re Rudy L. (1994) 29 Cal.App.4th 1007,
1011.)
We are also constrained by the separation of powers doctrine from
construing Section 56 as imposing obligations on the Governor to investigate military
whistleblower allegations. Article III, section 3 of the California Constitution divides the
power of the state government into the legislative, executive, and judicial branches, and
prohibits any person charged with exercising power belonging to any one of those
branches from exercising any function belonging to the other two. The purpose of the
separation of powers doctrine is to prevent one branch of government from exercising the
constitutional power vested in another branch. (In re Rosenkrantz (2002) 29 Cal.4th 616,
662.) Although the separation of powers doctrine does not prohibit the Legislature from
enacting laws that might affect the Governor’s actions (see Manduley v. Superior Court
(2002) 27 Cal.4th 537, 557), implying an obligation on the Governor’s part under Section
56(e), when none expressly exists, is inconsistent with the doctrine.
Because we conclude that Section 56(e) is unambiguous, its plain meaning
controls, and we do not consider extrinsic aids. (Fluor, supra, 61 Cal.4th at p. 1198.)
We may reject a literal construction of a statute if doing so would frustrate its purpose or
lead to an absurd result. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27;
14
Flannery v. Prentice (2001) 26 Cal.4th 572, 576-578.) But the result contemplated by the
plain language of Section 56(e) is not absurd.
IV.
Section 56 Does Not Violate the Equal Protection Clause
of the California Constitution.
Stirling contends Section 56 violates California’s equal protection clause
(Cal. Const., art. I, § 7, subd. (a)) if it is construed as not requiring the Governor to
conduct an investigation into his whistleblower allegation. The state equal protection
clause, though substantially similar to the federal one, is “possessed of an independent
vitality” and in a given case “may demand an analysis different from that which would
obtain if only the federal standard were applicable.” (Serrano v. Priest (1976) 18 Cal.3d
728, 764.)
“‘“The concept of the equal protection of the laws compels recognition of
the proposition that persons similarly situated with respect to the legitimate purpose of
the law receive like treatment.”’ [Citation.] ‘The first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.’ [Citations.]
This initial inquiry is not whether persons are similarly situated for all purposes, but
whether they are similarly situated for purposes of the law challenged.” (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253.) Two groups are similarly situated for equal
protection analysis if they are “‘sufficiently similar with respect to the purpose of the law
in question that some level of scrutiny is required in order to determine whether the
distinction [in treatment] is justified.’” (Woods v. Horton (2008) 167 Cal.App.4th 658,
670.)
Section 56(e) in effect creates two classifications of California National
Guard service members: (1) those not within the inspector general’s chain of command,
and (2) those within the inspector general’s chain of command. These two groups are
15
similarly situated with respect to the purposes of Section 56. When enacting the
California Military Whistleblower Protection Act, the Legislature found and declared:
“(d) The California Military Department Inspector General and the California Military
Whistleblower Protection Act are intended to mirror federal law and regulations that
govern federal inspector generals, specifically the federal Inspector General Act of 1978
and the federal Military Whistleblower Protection Act. Members of the Military
Department should be free to communicate and report waste, fraud, abuse of authority,
violations of law, or threats to the public health and safety without fear of retribution. [¶]
(e) Public servants best serve the citizenry when they can be candid and honest without
reservation in conducting the people’s business.” (Historical and Statutory Notes, 46
West’s Ann. Mil. & Vet. Code (2017 Supp.) foll. § 55, p. 4.)
The policy of encouraging California National Guard service members to
report waste, fraud, abuse of authority, violations of law, or threats to the public health
and safety without fear of retribution, extends equally to service members within the
inspector general’s chain of authority and those not within the inspector general’s chain
of authority. The distinction between those two groups was made, not because the
purpose of section 56 was different for each, but to avoid the conflict of interest that
might arise if the complaining service member is in the inspector general’s immediate
chain of command.
But Section 56 does not, in effect, afford unequal rights and protections to
the two classifications of California National Guard service members. There is no
unequal treatment between these two groups because, for both classifications, the
whistleblower allegation is referred to an impartial decision maker who is not compelled
to undertake an investigation. Under Section 56, subdivision (d), the inspector general
has discretion to determine whether an allegation warrants an investigation. The
Governor likewise may decline to investigate a whistleblower allegation. Section 56 thus
16
guarantees a member of neither classification a full investigation of a whistleblower
allegation.
Section 56, subdivision (d)(1) states the inspector general shall
“[e]xpeditiously determine whether there is sufficient evidence, in accordance with
federal regulations governing federal inspectors general, to warrant an investigation of
the allegation.” (Italics added.) Stirling argues the italicized language means the
inspector general must conduct the seven-step investigation process required by United
States Army Regulation, No. 20-1, as approved November 29, 2010 (AR No. 20-1), for
investigation by the United States Army Inspectors General of allegations of impropriety,
mismanagement, unethical behavior, or misconduct.
4
The seven-step process set forth in
AR No. 20-1, section 7-1b, encompasses the entire investigation process, starting with
receiving the inspector general action request and concluding with notifying the claimant
in writing of the results of the investigation and closing the action request. Section 56,
subdivision (d)(1) only concerns the state inspector general’s preliminary determination
whether to investigate the allegation and therefore cannot be read as requiring the
inspector general to conduct the entire seven-step investigation process of AR No. 20-1.
Section 56, subdivision (d)(1) at most would incorporate step 1, which is “receive the
inspector general action request” and step 2, which is “conduct inspector general
preliminary analysis.” (AR No. 20-1, § 7-1b(1) & (2).)
A service member, such as Stirling, who is within the inspector general’s
immediate chain of command has the added protection that the whistleblower allegation
is referred to the Chief of the National Guard Bureau. AR No. 20-1 applies to the Army
National Guard of the United States and the United States Army Reserve. (AR No. 20-1,

4
The relevant federal regulation is section 7-1b(1)-(7) of AR No. 20-1. Section 7-1(b)
states the United States Army Inspectors General “will use the 7-step IGAP outlined in
‘The Assistance and Investigations Guide’ to perform IG investigative inquiries and
investigations.” (Ibid.)
17
“Applicability.”) Here, the Chief of the National Guard Bureau referred Stirling’s
whistleblower allegation to the Department of the Army Inspector General, who accepted
the allegation and commenced an investigation. That investigation would have to be
undertaken in compliance with AR No. 20-1, section 7-1b(1)-(7).
The Chief of the National Guard Bureau might not be able to affect
Stirling’s employment record because Stirling, while on Title 32 status, is considered a
state employee. (Holmes, supra, 90 Cal.App.4th at p. 317; Chester v. State v. California
(1994) 21 Cal.App.4th 1002, 1004, fn. 4.) But nothing bars the Chief of the National
Guard Bureau from investigating Stirling’s whistleblower allegation. If the Department
of the Army Inspector General finds wrongdoing, it would be expected that the Governor,
the Adjutant General, or the inspector general would take the necessary corrective action.

Outcome: The judgment is affirmed. In the interest of justice, the parties shall bear
their own costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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