COMMONWEALTH'S MOTION TO APPOINT NEW COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, RESPONDENT et al v. HARRIS
Filing
42
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 8/22/2013. 8/23/2013 ENTERED AND COPIES E-MAILED.(kk, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
IN RE: COMMONWEALTH’S MOTION
:
TO APPOINT NEW COUNSEL
:
AGAINST OR DIRECTED TO DEFENDER
:
ASSOCIATION OF PHILADELPHIA
:
COMMONWEALTH OF PENNSYLVANIA,
:
:
v.
:
:
FRANCIS BAUER HARRIS.
:
MISCELLANEOUS ACTION
NO. 13-62
MEMORANDUM OPINION
RUFE, J.
AUGUST 22, 2013
This matter comes before the Court having been removed by the Federal Community
Defender Organization (“FCDO”) from the Lancaster County Court of Common Pleas.1 On
February 11, 2013, prior to removal, Pennsylvania Attorney General Kathleen G. Kane filed a
Motion to Appoint Counsel in the underlying Post-Conviction Relief Act (“PCRA”) proceeding,
Commonwealth v. Harris, No. CP-36-CR-0000672-1997 (the “Disqualification Motion”). In the
Disqualification Motion, the Commonwealth seeks to disqualify Defendant Francis Bauer
Harris’s FCDO counsel from representing Mr. Harris in his state court PCRA proceedings on the
grounds that such representation violates federal law. Without removing the underlying PCRA
proceeding, the FCDO removed the Disqualification Motion to this Court and thereafter, filed a
Motion to Dismiss, arguing that the Commonwealth is without standing to enforce the statute
under which it seeks to disqualify FCDO counsel. The Commonwealth then filed a Motion to
Remand, asserting that the Federal Officer Removal Statute, 28 U.S.C. § 1442, pursuant to which
the Disqualification Motion was removed, does not allow removal in this case. The Court held
1
Notice of Removal [Doc. No. 2] at 1.
oral argument on the pending motions and permitted supplemental briefing. The Motion to
Remand and the Motion to Dismiss are now ripe for disposition.
I.
BACKGROUND
A.
Background of Francis Bauer Harris’s Criminal Proceedings
Francis Bauer Harris was convicted of first degree murder on October 4, 1997, in the
Lancaster County Court of Common Pleas, and after a penalty phase proceeding, was sentenced
to death.2 On November 20, 2002, the Pennsylvania Supreme Court affirmed the conviction and
sentence, and on December 8, 2003, the United States Supreme Court denied a Petition for Writ
of Certiorari.3 On March 15, 2004, then-Governor Edward Rendell signed a death warrant,
which scheduled Mr. Harris’s execution for May 13, 2004.
Mr. Harris petitioned this Court for a stay of execution, and at the same time, requested
leave to proceed in forma pauperis and asked that counsel be appointed to represent him.4 The
matter was docketed as a capital habeas petition at Civil Action No. 04-1237, on March 22,
2004. By Order dated March 29, 2004, after a telephone conference with FCDO counsel and the
Lancaster County District Attorney’s Office, this Court stayed Mr. Harris’s execution, granted
his motion to proceed IFP, and pursuant to 21 U.S.C. § 848(q)(4)(B), appointed the FCDO “to
represent Petitioner [Harris] in his to-be-filed Petition for Writ of Habeas Corpus.”5
2
Doc. No. 2 ¶ 4.
3
Id. ¶ 5 (citing Commonwealth v. Harris, 817 A.2d 1033 (Pa. 2002) and Harris v. Pennsylvania, 540 U.S.
1081 (2003)).
4
Harris v. Beard, Civ. A. No. 04-1237, Doc. No. 1.
5
Civ. A. No. 04-1237, Doc. No. 4 ¶ 2.
2
FCDO counsel then filed a Petition for Writ of Habeas Corpus in this Court on Mr.
Harris’s behalf on October 12, 2004.6 On November 22, 2004, FCDO attorneys also filed a
PCRA petition in the Lancaster County Court of Common Pleas on Mr. Harris’s behalf.7 The
Court thereafter granted Mr. Harris’s Motion to place the federal habeas proceeding in suspense
pending exhaustion of state court remedies, stating that it would revisit the issue of whether
suspense or dismissal without prejudice was warranted during the pendency of the state
proceedings.8 By Opinion and Order dated September 22, 2005, the Court dismissed the Petition
without prejudice pending exhaustion of state court remedies.9
Litigation in Mr. Harris’s underlying state post-conviction proceedings has been ongoing
since that time. On February 11, 2013, the Commonwealth for the first time raised an objection
to the FCDO’s representation of Mr. Harris in state court, filing the Disqualification Motion that
is the subject of these proceedings.
B.
Background of What the FCDO Calls “The Commonwealth’s Campaign
Against the FCDO”
The FCDO asserts that following a concurring opinion by the Chief Justice of the
Pennsylvania Supreme Court in an unrelated criminal appeal, which questioned whether FCDO
attorneys may appear in PCRA proceedings,10 the Office of the Philadelphia District Attorney
petitioned the Pennsylvania Supreme Court to exercise its “King’s Bench Jurisdiction” pursuant
to 42 Pa. C.S. § 726 to bar FCDO attorneys from appearing in any PCRA proceedings, based on
the FCDO’s purported improper use of federal funds in representing defendants in these
6
Civ. A. No. 04-1237, Doc. No. 12.
7
Doc. No. 2 ¶ 9.
8
Civ. A. No. 04-1237, Doc. No. 19.
9
Civ. A. No. 04-1237, Doc. Nos. 25, 26.
10
Commonwealth v. Spotz, 18 A.3d 244, 329-49 (Pa. 2011) (Castille, C.J., concurring).
3
proceedings. The FCDO removed the King’s Bench Proceeding to federal court on December 8,
2011; six days later the Commonwealth voluntarily dismissed the petition.11 After voluntary
dismissal of the King’s Bench Proceeding, the Commonwealth, through various county District
Attorney’s Offices and the Office of the Attorney General, continued to pursue the objective of
the King’s Bench Proceeding through piecemeal litigation, challenging the appearance of FCDO
counsel in several individual, capital PCRA proceedings (including that of Mr. Harris).
On January 10, 2013, the Pennsylvania Supreme Court issued a per curiam order in
Commonwealth v. Mitchell, No. 617,12 in which it remanded a case to the PCRA court to
determine whether the FCDO could continue to represent the defendant in PCRA proceedings.
The Pennsylvania Supreme Court instructed the PCRA court, on remand, to determine whether
the FCDO used any federal grant monies to support its activities and directed that if the FCDO
could not demonstrate that all of their actions in PCRA court were privately financed, counsel
should be removed.13
Following the Mitchell remand, the Attorney General filed the Disqualification Motion in
Mr. Harris’s PCRA proceedings.14 In the Motion, the Commonwealth asserts that pursuant to 18
U.S.C. § 3599, the FCDO may not represent Mr. Harris in his PCRA proceeding and citing
Mitchell, argues that the PCRA court should hold a hearing to determine whether the FCDO has
used or will use federal grant money to support its state court activities. The FCDO timely
removed the Motion to this Court. This case is one of several cases removed by the FCDO to
11
E.D. Pa. Civ. A. No. 11-7531 (Dalzell, J.).
12
Commonwealth v. Mitchell, CP-51-CR-0204961-1998, D56/1 (see Exhibit 4 to FCDO’s Mot. to
Dismiss [Doc. No. 5]).
13
14
Id.
Commonwealth’s Motion to Appoint Counsel (“Disqualification Motion”), [Doc, No. 2, Ex. A].
4
federal court after the Commonwealth filed a disqualification motion citing improper use of
federal funds.15
C.
Background of the Criminal Justice Act
The Criminal Justice Act (“CJA”),16 was enacted “to promote the cause of criminal
justice by providing for the representation of defendants who are financially unable to obtain an
adequate defense in criminal cases in the courts of the United States.”17 The CJA authorizes,
inter alia, the appointment of counsel for indigent inmates seeking habeas corpus relief under 28
U.S.C. § 2254,18 and makes appointment mandatory for those indigents seeking relief from a
death sentence.19 Pursuant to the CJA, each federal district court must implement a plan for the
furnishing of this representation; the plan may establish a federal “Community Defender
Organization” (“CDO”), “a nonprofit defense counsel service established and administered by
any group authorized by the plan to provide representation.”20 The Federal Community
Defender Organization (“FCDO”) appearing in the instant case is one such organization and is a
division of the Defender’s Association of Philadelphia.
15
See, e.g., E.D. Pa. Civ. A. Nos. 13-1871 (McLaughlin, J.), 13-2242 (Schiller, J.), M.D. Pa. Civ. A. Nos.
13-510, 13-511, 13-561 (Caputo, J.). As of the date of this Opinion, Judge McLaughlin and Judge Caputo have filed
opinions on the motions to remand in their respective cases.
16
18 U.S.C. § 3006A.
17
S. Rep. No. 88-346 (1963), reprinted in 1964 U.S.C.C.A.N. 3000, 3000.
18
18 U.S.C. § 3006A(a)(2)(B).
19
18 U.S.C. § 3599(a)(2).
20
18 U.S.C. § 3006A(g)(2)(B). The Defender Association of Philadelphia’s Federal Court Division is a
CDO within the meaning of 18 U.S.C. § 3006A(g)(2)(B). The Federal Court Division of the Defender Association
of Philadelphia is often referred to as the “Federal Community Defender Organization, Eastern District of
Pennsylvania” or “FCDO” for short. For purposes of these proceedings, “FCDO” will denote the Federal Court
Division of the Defender Association. While CDO’s, like the FCDO, are established pursuant to § 3006A(g)(2)(B),
federal public defender organizations are established pursuant to § 3006A(g)(2)(A).
5
The CJA requires that counsel be appointed for an indigent defendant “[i]n any post conviction
proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set
aside a death sentence.”21 It further requires that each United States district court implement a
plan for furnishing representation in accordance with the CJA, and authorizes the Judicial
Conference of the United States to issue rules and regulations governing the operation of such
plans.22 The United States District Court for the Eastern District of Pennsylvania’s Plan
authorizes the FCDO to provide representation to persons so entitled under the CJA, and FCDO
attorneys are required to abide by CJA Guidelines.23
In addition to representing federal criminal defendants and capital defendants in § 2254
proceedings, FCDO attorneys appear on behalf of federal clients in PCRA proceedings before
Pennsylvania state courts. They do so either (1) on the purported authority of a federal court
order to exhaust their client’s state court remedies or (2) as Pennsylvania-barred attorneys
appointed by the PCRA court or retained by a defendant to provide representation on a pro bono
basis. The FCDO asserts that the research and investigation of federal claims, which are
essential to federal habeas representation, may be compensated with CJA funds even where the
work is done in the PCRA proceedings, before a federal habeas petition is filed. However, work
that need not be undertaken to provide federal habeas representation (such as appearing at state
court hearings) is not compensated with CJA funds and instead, is underwritten by private funds
or furnished pro bono with the knowledge and approval of the Administrative Office (“AO”) of
the United States Courts.
21
22
18 U.S.C. § 3599(a)(2).
18 U.S.C. § 3006A(a), (h).
23
See Guide to Judiciary Policy, Vol. 7, Pt. A (2011), available at
http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms/GuideToJudiciaryPolicyVolu
me7.aspx; see also Exhibit 3 to FCDO’s Mot. to Dismiss [Doc. No. 5-6].
6
Under the CJA, appropriations are “made under the supervision of the Director of the
[AO]”24 who carries out that responsibility under the direction of the Judicial Conference of the
United States.25 The AO has enacted a comprehensive regulatory scheme governing the
appointment of counsel and compensation, and the conditions attached to the FCDO’s receipt of
federal funds.26 The AO Guidelines require segregation of grant funds from private funds, return
of unused funds to the AO, and the submission of annual reports regarding the grantee’s
activities, financial position, and anticipated caseload and expenses for the next fiscal year.27
Grantees are required to keep detailed financial records and are audited by the AO each year to
ensure compliance with the terms and conditions of the grant award.28 If the grantee fails to
comply with the terms and conditions of the grant award, the AO is empowered to reduce,
suspend, terminate, or disallow further payments.29
II.
MOTION TO REMAND
A.
Legal Standard for Removal
The FCDO filed its Notice of Removal pursuant to 28 U.S.C. § 1442, which provides in
pertinent part:
(a) A civil action or criminal prosecution that is commenced in a State court
and that is against or directed to any of the following may be removed by
them to the district court of the United States for the district and division
embracing the place wherein it is pending: (1) The United States or any
agency thereof or any officer (or any person acting under that officer) of the
24
18 U.S.C. § 3006A(i)
25
18 U.S.C. § 3006A(g)(2)(B).
26
See AO Guidelines, Ex. 3 to the Mot. to Dismiss.
27
Id. at 2-3.
28
Id. at 4.
29
Id. at 9.
7
United States or of any agency thereof, in an official or individual capacity,
for or relating to any act under color of such office or on account of any right,
title or authority claimed under any Act of Congress for the apprehension or
punishment of criminals or the collection of the revenue.30
Section 1442, commonly referred to as the “Federal Officer Removal Statute,” authorizes the
removal of any ancillary civil proceeding, separate and apart from an underlying action, if such
proceeding is directed to or against a federal officer, or person acting under a federal officer, for
conduct relating to any act done under color of the office.31 “Although the general removal
statute, 28 U.S.C. § 1441, is to be strictly construed in favor of state court adjudication, the
federal officer removal statute, 28 U.S.C. § 1442, upon which removal was premised in this
matter, should be broadly construed in favor of a federal forum.”32
To establish removal jurisdiction under section 1442(a)(1), the removing party, here the
FCDO, “must establish that (1) it is a ‘person’ within the meaning of the statute; (2) the
plaintiff’s claims are based upon the defendant’s conduct ‘acting under’ a federal office; (3) it
raises a colorable federal defense; and (4) there is a causal nexus between the claims and the
conduct performed under color of a federal office.”33 Additionally, the removing party must
establish that the removed action is a “civil action,” as defined by § 1442(d)(1), directed at the
removing party, and which is removed without removing the underlying action.
30
28 U.S.C. § 1442(a)(1).
31
See, e.g., Vedros v. Northrop Grumman Shipbuiding, Inc., No. 11-67281, 2012 WL 3155180, at *2
(E.D. Pa. Aug. 2, 2012).
32
Calhoun v. Murray, 507 F. App’x 251, 260 (3d Cir. 2012) (citing Abels v. State Farm Fire & Cas. Co.,
770 F.2d 26, 29 (3d Cir. 1985) and Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994).
33
Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California,
489 U.S. 121, 129 (1989)).
8
B.
Discussion
The final two requirements need little discussion. It is without question that the FCDO
removed only the Disqualification Motion and not the underlying criminal prosecution, and that
it is a “civil action” before this Court. Although the Commonwealth maintains that the
Disqualification Motion is directed to Mr. Harris, not the FCDO, because it seeks to have
counsel appointed to represent Mr. Harris, the Motion is more reasonably read as a motion to
disqualify the FCDO, which is directed at the FCDO itself (since Mr. Harris is already
represented by the FCDO, there is no need to have counsel appointed unless the FCDO is
disqualified).
The crux of the dispute between the parties concerns whether the FCDO, as a private
nonprofit organization, “acts under” a federal officer or agency for the purpose of § 1442
removal.34 The Commonwealth argues that the FCDO does not act under a federal agency when
it appears in state court, and therefore removal would never be proper with respect to FCDO
state court representation. The Commonwealth’s argument, however, overreaches.
A private person is “acting under” a federal officer or agency for the purpose of the
federal officer removal statute where such person’s efforts “assist, or [] help carry out, the duties
or tasks of the federal superior.”35 Accordingly, courts have held that “attorneys employed by
organizations conducting federally-funded legal assistance programs for [] indigent [persons] act
34
It is undisputed that the FCDO is part of the Defender’s Association of Philadelphia, an independent,
non-profit corporation. Corporate persons are “persons” within the meaning of the statute. Bouchard v. CBS Corp.,
No. 11-66270, 2012 WL 1344388, at *9 (E.D. Pa. Apr. 17, 2012). Therefore, the FCDO is a “person” for the
purpose of the Court’s analysis. The Commonwealth does not argue to the contrary.
35
Watson v. Philip Morris Cos., 551 U.S. 142, 152 (2007) (emphasis omitted).
9
under officer of the United States within the meaning of the removal statute.”36 Here, the FCDO
provides a service to indigent defendants that the “Government itself would [otherwise] have had
to perform,” and thus, acts under a federal officer or agency for the purpose of the federal officer
removal statute.37
The Commonwealth argues that there is no causal nexus between the claims and the
conduct performed under color of the federal office; that is, even assuming the FCDO may at
times “act under” a federal officer or agency, it does not do so when appearing in state court
PCRA proceedings, which must be exhausted before a federal habeas petition may be filed.
While the Court recognizes the basic logic of this argument, it fails to defeat removal here.
The “‘under color of office’ [requirement is] meant . . . to preserve the pre-existing
requirement of a federal defense for removal,”38 and here, the FCDO’s defense itself shows the
causal nexus that exists between the claims and the conduct performed under color of the federal
office. According to the FCDO, its state court activities are mixture of federally funded
activities and privately funded activities; the aspect of state court representation that is done in
preparation of the federal habeas petition is permitted by § 3599, and is performed “under color”
of a federal office. Therefore, in asserting this defense, the FCDO satisfies both the “causal
nexus” and the “federal defense” requirements of the removal statute.
The viability of the FCDO’s defense is of no moment in the determination of whether
removal is proper as the Supreme Court does not require the removing party to “win [its] case
36
Dixon v. Georgia Indigent Legal Servs., Inc.. 388 F. Supp. 1156, 1161 (S.D. Ga. 1974), aff’d 532 F.2d
1373 (5th Cir. 1976); see also Gurda Farms, Inc. v. Monroe County Legal Assistance Corp., 358 F. Supp. 841
(S.D.N.Y. 1973).
37
Watson, 551 U.S. at 154.
38
Mesa, 489 U.S. at 135.
10
before [it] can have [the case] removed.”39 Additionally, the Supreme Court has rejected a
“narrow, grudging interpretation” of the federal officer removal statute, recognizing the
importance of federal defenses being determined in a federal court.40 While the Court recognizes
“strong judicial policy against federal interference with state criminal proceedings,”41 the Court
finds that in this case, public policy favors having a federal entity interpret this federal defense,
particularly as there is no interference with the state courts’ determination of the merits of Mr.
Harris’s PCRA Petition.
Despite the Commonwealth’s insistence that the state court’s interest in regulating the
practice of law is paramount and warrants remand, removal does not prevent the Courts of the
Commonwealth from regulating the practice of law. If the FCDO’s appearance in state court
were to violate Pennsylvania Supreme Court ethical rules, disqualification or other disciplinary
action may be taken by an authorized body. Here, the Commonwealth does not advance any
independent state ethical rule that prohibits the FCDO from representing Mr. Harris in his PCRA
proceedings; disqualification is sought solely on the basis of a federal funding statute. To the
extent the general state interest in regulating the practice of law may be implicated, it is
insufficient to override the policy underlying federal officer removal statute which supports
removal in this matter.
39
Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (internal quotation omitted).
40
See id.; see also Mesa, 489 U.S. at 126 (“[T]he Federal Government can act only through its officers and
agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those
officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet
warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for
their protection,-if their protection must be left to the action of the State court,-the operations of the general
government may at any time be arrested at the will of one of its members.”) (internal quotation marks and citation
omitted).
41
Mesa, 489 U.S. at 138 (internal quotation omitted).
11
C.
Abstention
The Commonwealth argues that even if the Court finds that removal is proper under the
federal officer removal statute, Younger Abstention prohibits removal.42 The FCDO asserts that
the Commonwealth’s Younger argument is misplaced because according to the FCDO, the
jurisdiction conferred by § 1442 is mandatory and therefore, the doctrine does not apply in the
§ 1442(a) context.
Younger Abstention, named for Younger v. Harris,43 requires that a federal court abstain
“in certain circumstances from exercising jurisdiction over a claim where resolution of that claim
would interfere with an ongoing state proceeding.”44 The doctrine “reflects a strong federal
policy against federal-court interference with pending state judicial proceedings absent
extraordinary circumstances.”45 Younger Abstention is appropriate “only when (1) there are
ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate
important state interests; and (3) the state proceedings afford an adequate opportunity to raise
federal claims.”46 “Even when the three-prong test is met, Younger abstention is not appropriate
when ‘(1) the state proceedings are being undertaken in bad faith or for purposes of harassment
or (2) some other extraordinary circumstances exist . . . .’”47
42
See Doc. No. 7 at 21-30.
43
401 U.S. 37 (1971).
44
Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010).
45
Hill v. Barnacle, No. 13-1205, 2013 WL 1760898, at *1 (3d Cir. Apr. 25, 2013) (quoting Gwynedd
Properties, Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir. 1992) (internal quotation marks omitted)).
46
Miller, 598 F.3d at 146 (quoting Kendall v. Russell, 572 F.3d 126, 131 (3d Cir. 2009) (internal quotation
marks omitted)).
47
Lazaridis v. Wehmer, 591 F.3d 666, 670 n.4 (3d Cir. 2010) (quoting Schall v. Joyce, 885 F.2d 101, 106
(3d Cir. 1989) (omission in original)).
12
Neither party has cited and the Court’s research revealed no cases in which a court
applied Younger Abstention in the context of federal officer removal. The Commonwealth states
that “[i]n the absence of guidance from the Supreme Court, there is no clear indication that
Younger does not apply to cases that have been removed,”48 citing two cases, one from the
Fourth Circuit,49 the other from the Sixth Circuit,50 in which Younger Abstention was applied in
removed cases. Both cases, however, involved removal pursuant to 28 U.S.C. § 1441, the
general removal statute. This argument is not persuasive in the context of federal officer
removal because it does not address the countervailing policy of the federal officer removal
statue. In fact, the Fourth Circuit has held that “the removal jurisdiction granted by § 1442(a),
which is designed to protect federal employees against local prejudice, is mandatory, not
discretionary, and a district court has no authority to abstain from the exercise of that jurisdiction
on any ground other than the two specified in 1447(c).”51 Accordingly, the Court should be
hesitant to apply Younger abstention in the context of § 1442 removal.
However, the Court need not decide whether Younger Abstention could ever apply to a
case removed pursuant to § 1441 because in this case, the state court’s interest in deciding the
Disqualification Motion, is outweighed by the federal interest in interpreting this federal funding
statute. As stated above, the Court is not persuaded by the Attorney General Office’s attempts to
advance “regulation of the practice of law” as the important state interest warranting remand or
abstention. This Court’s decision to allow removal does not prohibit the Pennsylvania Supreme
48
Doc. No. 22 at 7 (quoting Daniel C. Norris, The Final Frontier of Younger Abstention: The Judiciary’s
Abdication of the Federal Court Removal Statute, 31 Fla. St. U. L. Rev. 193, 219 (2003)).
49
Emp’rs Res. Mgmt. Co. v. Shannon, 65 F.3d 1126 (4th Cir. 1995).
50
Lutz v. Calme, No. 98-6570, 1999 WL 1045163 (6th Cir. Nov. 9, 1999).
51
Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir. 1994) (citation omitted).
13
Court from regulating which attorneys may practice law in Pennsylvania or the conduct of
attorneys who practice there to the extent such attorneys engage in unethical behavior or
otherwise fail to comply with court rules. The Commonwealth herein seeks disqualification
solely on the basis of a federal funding statute and in this context, abstention is not warranted.52
D.
Conclusion
For the foregoing reasons, the Court finds that removal pursuant to 28 U.S.C. § 1442 was
proper. Accordingly, the Motion to Remand will be denied.
III.
FCDO’S MOTION TO DISMISS
Having determined that the case is properly before the Court, the FCDO’s Motion to
Dismiss must be considered. The FCDO argues that the Disqualification Motion should be
dismissed because § 3599, pursuant to which the Commonwealth seeks to disqualify the FCDO,
does not provide a private right of action. The Commonwealth responds that it need only
demonstrate that it generally has standing to file a disqualification motion is state criminal
proceedings, not that it has standing to bring a claim pursuant to § 3599.
52
Though the Court will not go so far as to say that “the state proceedings are being undertaken in bad
faith or for purposes of harassment,” see Lazaridis, 591 F.3d at 670 n.4, the Court notes that it appears that the
success of the Commonwealth’s Disqualification Motion would likely be detrimental to state court interests. As the
FCDO states in its Brief in Opposition to the Motion to Remand:
If the Commonwealth were to succeed in removing the FCDO, Mr. Harris would be entitled to
new representation pursuant to Pennsylvania Rule of Criminal Procedure 904(H), a fact the
Commonwealth does not dispute. That representation would be at the expense of the
Commonwealth or Lancaster County or both and would result in protracted delay of the PCRA
proceedings while new counsel learns the facts and undertakes an investigation into Mr. Harris’s
federal claims.
Doc. No. 27 at 31.
14
In its Disqualification Motion, the Commonwealth defines the question at issue in the
Motion as “whether FCDO, a federal entity, can represent a state court litigant.”53 The Motion
goes on to state “a background of the issue,” and in doing so, begins with the text of 18 U.S.C.
§ 3599, arguing that the statute permits appointment of counsel in § 2554 and “every subsequent
stage of available judicial proceedings” but that “[a]n initial PCRA petition cannot legally be
considered a ‘subsequent stage of available judicial proceedings’ to federal habeas corpus
proceeding under 28 U.S.C. § 2254,” and therefore, “there is no federal action or federal
appointment order authorizing FCDO’s representation of Harris.”54 The Commonwealth further
states that the state court to which the motion is directed “has the authority to enforce federal law
and remove the FCDO”55 and appoint new counsel.
It is evident, from this last statement in particular, that the purpose of the Motion is to
disqualify the FCDO based on federal law. The Motion seeks to disqualify the FCDO because,
according to the Commonwealth, such representation is not permitted by virtue of a federal
statute. Said differently, it is a suit to enforce § 3599. While the Commonwealth argues that the
FCDO “mischaracterizes” its motion as seeking an adjudication of the use of federal funds when
the real “thrust” of its motion is the propriety of FCDO representation in state court, this does not
alter the conclusion that the Motion “is in essence a suit to enforce the statute itself.”56 The
question thus becomes whether the Commonwealth has standing to seek enforcement of § 3599.
The Court finds that it does not.
53
Disqualification Motion ¶ 5.
54
Disqualification Motion ¶¶ 9, 15.
55
Disqualification Motion ¶ 10.
56
Astra USA, Inc. v. Santa Clara Cnty., 131 S. Ct. 1342, 1348 (2011).
15
“Like substantive federal law itself, private rights of action to enforce federal law must be
created by Congress.”57 Because of this, the Third Circuit “employ[s] a two-step inquiry for
determining whether a private right of action exists under a federal statute: (1) whether Congress
intended to create a personal right in the plaintiff; and (2) whether Congress intended to create a
personal remedy for that plaintiff.”58 A party asserting a violation of a federal statute “must
address both aspects of this rights-remedies dichotomy.”59 In the absence of an express private
right of action, courts may infer an implied private right of action only if both aspects of this
dichotomy have been satisfied.60 Where, as here, a statute provides for “agency enforcement”
(that is, delegation to a federal agency to enforce the law), it “creates a strong presumption
against implied private rights of action.”61 The two-step inquiry applies to states as well as
private parties seeking implied rights of action.62
Here, the Commonwealth does not make any effort to argue that an explicit or implied
right of action may be read into § 3599, as it surely cannot given the strong presumption against
an implied private right of action in this case.63 Rather, the Commonwealth argues that the
foregoing principles do not apply in this case because the FCDO created this action by removing
it to federal court. Given that this is not “a traditional civil action commenced via a complaint in
state court,” and instead is a motion filed during the course of state criminal proceedings, the
57
McGovern v. City of Philadelphia, 554 F.3d 114, 116 (3d Cir. 2009) (citing Touche Ross & Co. v.
Redington, 442 U.S. 560, 578 (1979)).
58
Id.
59
Id.
60
Id.
61
Wisniewski v. Rodale, Inc. , 510 F.3d 294, 305 (3d Cir. 2007) (emphasis added).
62
See New Jersey Dep’t of Envtl. Protection & Energy v. Long Island Power Auth., 30 F.3d 403, 421 n.34
(3d Cir. 1994).
63
See Wisniewski, 510 F.3d at 305.
16
Commonwealth asserts that it need only show that it has the authority to seek “a court order
concerning whether the FCDO can be appointed to represent a state PCRA petitioner before
federal habeas corpus review.”64 The Court disagrees.
The Commonwealth cannot evade Congressional limits on the enforcement of federal law
by characterizing its motion as a disqualification proceeding where the disqualification sought is
solely based on federal law. Restrictions on private rights of action apply whenever a party is “in
substance” attempting to enforce a provision of federal law.65 Because the Commonwealth seeks
to do just that, it must show that it has a right to do so. The Commonwealth has not made this
showing and thus, the private right of action doctrine prevents it from raising its claims.
Both parties advance several policy arguments in support of their respective positions,
with the Commonwealth again advancing the state court’s interest in regulating the practice of
law. The Court, however, does not interpret the Commonwealth’s argument to be that the FCDO
attorneys representing Mr. Harris are not authorized to practice law in Pennsylvania or are
otherwise in violation of Pennsylvania Supreme Court’s ethical rules. The only basis for
disqualification is the Commonwealth’s construction of a federal funding statute, and the state
has not established its interest in ensuring that any federal funds are properly expended.
Additionally, the Court is mindful that it “must prevent litigants from using motions to disqualify
opposing counsel for tactical purposes.”66 Disqualification is a harsh measure, and “motions to
disqualify opposing counsel generally are not favored.”67
64
Doc. No. 10 at 15.
65
See Astra USA, Inc., 131 S. Ct. at 1345.
66
Hamilton v. Merill Lynch, 645 F. Supp. 60, 61 (E.D. Pa. 1986).
67
Commw. Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1203 (E.D .Pa. 1992) (internal quotation
omitted).
17
The Court recognizes that the effect of its decision is to foreclose review of the scope of
representation permitted under § 3599 in state-court PCRA proceedings. However, recognizing
the Commonwealth’s right to proceed in this instance “could spawn a multitude of dispersed and
uncoordinated lawsuits” by state actors seeking to disqualify opposing counsel in death penalty
proceedings, and “the risk of conflicting adjudications would be substantial.”68
Given that § 3599 does not provide the Commonwealth the private right of action to
enforce the statute and in an effort to discern the policy and motivation underlying the filing of
these disqualification motions, the Court, during oral argument, questioned the Commonwealth
regarding the impetus for filing these motions. The Commonwealth was unable to provide the
Court with a clear explanation. The FCDO expressed the apparent contradiction in the
Commonwealth’s position well in its brief in opposition to the Motion to Remand:
If the Commonwealth were to succeed in removing the FCDO, Mr. Harris
would be entitled to new representation pursuant to Pennsylvania Rule of
Criminal Procedure 904(H), a fact the Commonwealth does not dispute. That
representation would be at the expense of the Commonwealth or Lancaster
County or both and would result in protracted delay of the PCRA proceedings
while new counsel learns the facts and undertakes an investigation into Mr.
Harris’s federal claims. The sincerity of the Commonwealth’s avowed interest
in avoiding delay and ensuring the proper expenditure of federal funds
pursuant to the CJA can hardly be credited in these circumstances. If the
Commonwealth’s “vital interest” is in eliminating a formidable adversary in
capital case litigation, that is hardly a legally cognizable justification for the
disqualification of counsel or for abstention.69
68
Astra USA, Inc., 131 S. Ct. at 1349. Though of no moment to the Court’s analysis and without reaching
a conclusion on the substantive merits of the Commonwealth’s claim, the Court notes a fundamental defect in the
Commonwealth’s argument. According to the Commonwealth, § 3599 permits the FCDO to represent a litigant in
federal habeas corpus proceedings and “throughout every subsequent stage of judicial proceedings.” 18 U.S.C. §
3599(a)(2), (e) (emphasis added). Because federal habeas corpus relief cannot be granted under 28 U.S.C. § 2244
unless a petitioner first exhausts his administrative remedies in state court, the Commonwealth argues that an initial
PCRA petition cannot legally be considered to be a “subsequent stage of available judicial proceedings,” and
therefore, the FCDO representation of a petitioner in these proceedings is prohibited by § 3599. However, the mere
fact that § 3599 does not provide funding for CJA counsel’s representation in state PCRA proceedings, does not
mean that CJA counsel cannot represent a petitioner in such proceedings, nor does it necessarily suggest that CJA
counsel is never entitled to funding for work relating to state proceedings. Although this is not necessarily fatal to a
substantive review of the Commonwealth’s claim, it weakens the Commonwealth’s position considerably.
69
Doc. No. 27 at 31.
18
Here, FCDO counsel are Pennsylvania-barred attorneys who are qualified, capable, and
competent to appear on behalf of Mr. Harris in state court, which they have done for more than
eight-and-a-half years first by Federal Court appointment and then at Mr. Harris’s request
without opposition from the Commonwealth. There is no asserted threat to the integrity and
authority of Pennsylvania courts to regulate the practice of law; rather, the Disqualification
Motion is made on the purported authority of federal law. The Court is unable to discern the
impetus underlying the filing of the Disqualification Motion in the absence of any discernible
state interest, and the lack of such interest supports the ultimate dispositions of the matter before
the Court.70
In its response to the Motion to Dismiss, the Commonwealth asserts that “[i]f this Court
concludes removal was proper, and was inclined to grant FCDO’s motion to dismiss, this Court
should first allow the Commonwealth to amend its pleading as obviously the Commonwealth did
not anticipate that its state court motion in a criminal case would become a complaint in a civil
action in federal court.”71 However, because the Court finds that the Commonwealth lacks
standing to assert a claim to enforce § 3599, an amendment would be futile. Consequently, the
Court dismisses this action with prejudice to the reassertion of claims under § 3599.72
70
The Court is puzzled by the Commonwealth’s purported interest in “remedying” the FCDO failure to
comply with its federal funding obligations. The remedy for a violation of AO Guidelines is a disallowance or a
reduction of payments under the grant award. Here, however, the Commonwealth seeks disqualification. Thus, the
success of the Commonwealth’s Motion does not provide the remedy contemplated by the statute. This conflict in
remedy undermines the Commonwealth’s assertion that it seeks to remedy a violation of the statute and further
supports the finding that the Commonwealth does not have the authority to enforce this statute as it does not have
the authority to provide the proper remedy.
71
Doc. No. 10 at 24 n.4 (citing Fed. R. Civ. P. 15(a)(2)).
72
At oral argument the Court inquired as to whether Mr. Harris should be represented in these
proceedings. The FCDO responded that “practice within this district, and the absence of any conflict of interest
between the FCDO and Harris, suggest that there is no need for Mr. Harris to be separately represented.” Doc. No.
32 at 19. Since this action has been dismissed the issue is moot.
19
IV.
CONCLUSION
For the foregoing reasons, the Motion to Remand will be denied and the Motion to
Dismiss will be granted. The Disqualification Motion will be dismissed with prejudice.
An appropriate Order follows.
20
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