Attorney Grievance Commission of Maryland v. Rheinstein

Filing 30

MEMORANDUM AND ORDER granting 12 Plaintiff Attorney Grievance Commission of Maryland's Motion to Remand. Signed by Judge Marvin J. Garbis on 3/17/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND

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Plaintiff
VS.

* CIVIL ACTION NO. MJG-16-1591

JASON EDWARD RHEINSTEIN

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Defendant
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MEMORANDUM AND ORDER RE: REMAND
The Court has before it Plaintiff Attorney Grievance
Commission of Maryland’s Motion for Remand for Lack of Federal
Jurisdiction [ECF No. 12] and the materials submitted relating
thereto.
I.

The Court finds a hearing unnecessary.

BACKGROUND
On February 17, 2016, the Attorney Grievance Commission of

Maryland (“AGC”) filed, in the Maryland Court of Appeals, a
Petition for Disciplinary or Remedial Actions [ECF No. 2]
against Jason Edward Rheinstein (“Rheinstein”).

On February 19,

2016, the Court of Appeals of Maryland transmitted the Petition
to the Circuit Court for Anne Arundel County to hold a judicial
hearing pursuant to Maryland Rule 16-757. [ECF No. 3].
On May 23, 2016, Rheinstein filed a Notice of Removal [ECF
No. 5] in this Court.

Rheinstein contends that this Court can
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exercise jurisdiction over the case by virtue of 28 U.S.C.
§ 1441 (federal question jurisdiction) and 28 U.S.C. § 1442
(federal officer jurisdiction).
By the instant motion, the AGC seeks remand due to the
absence of federal jurisdiction and, alternatively, contends
that even if there were federal jurisdiction, this Court should
abstain.

II. JURISDICTIONAL PRINCIPLES
Rheinstein, the party invoking federal jurisdiction, has
the burden of establishing that removal is proper and that the
Court has subject matter jurisdiction. Mulcahey v. Columbia
Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994).
Removal statutes should be strictly construed, and if
“federal jurisdiction is doubtful, a remand is necessary.” Id.
Even there is federal jurisdiction; federal courts must
abstain from interfering in state proceedings “absent
extraordinary circumstances.” Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 431 (1982).

III. DISCUSSION
As discussed herein, Rheinstein has failed to establish
that the Court can exercise jurisdiction over the instant case.

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Moreover, even if the Court were to have jurisdiction, it would
abstain and remand the case to proceed in state court.

A.

Federal Question Jurisdiction

Federal question jurisdiction is provided by 28 U.S.C.
§ 1331 which states:
The district courts shall have original
jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of
the United States.
To determine whether federal question jurisdiction exists,
a court must look to the complaint to decide whether the cause
of action is created by federal or state law. Mulcahey, 29 F.3d
at 151.

If the cause of action is created by state law,

“federal question jurisdiction depends on whether the
plaintiff’s demand ‘necessarily depends on resolution of a
substantial question of federal law.’” Id.

Federal question

jurisdiction over a state law claim will arise if the claim
states a federal issue that is actually disputed and
substantial, “which a federal forum may entertain without
disturbing” the balance of federal and state judicial
proceedings.

Grable & Sons Metal Products, Inc. v. Darue

Engineering & Mfg., 545 U.S. 308, 314 (2005).
The instant suit presents claims arising under the Maryland
Attorneys’ Rules of Professional Conduct.

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The fact that some —

but by no means all1 — of Rheinstein’s alleged unethical actions
related to cases in federal court2 does not render the instant
case one presenting claims based upon federal law.
The Maryland Court of Appeals is the “ultimate arbiter of
any claims concerning attorney misconduct in the State of
Maryland, and the rules and procedures governing an Attorney
Grievance action are predicated upon the Court of Appeals having
jurisdiction to hear such a case.” Attorney Grievance Comm. v.
Pak, 400 Md. 567, 600 (2007); see also Md. Rule 19-308.5 (“[A]n
attorney admitted by the Court of Appeals to practice in this
State is subject to the disciplinary authority of this State,
regardless of where the attorney’s conduct occurs.”)
Accordingly, the Court does not have federal question
jurisdiction over the instant case.

B.

Federal Officer Removal

Federal officer jurisdiction is provided by 28 U.S.C.
§ 1442(a)(1) that permits the removal of “[a] civil action or

Moreover, even if all of Rheinstein’s alleged unethical
actions had occurred in federal cases, the instant case would,
nevertheless, not necessarily be within the federal question
jurisdiction of this Court.
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The AGC Complaint alleges that in certain related cases in
federal and state court, Rheinstein filed frivolous complaints
and motions, sent profane and threatening emails to opposing
counsel, and in a hearing erroneously led a state court to
believe that the opposing party and its officers were under an
investigation by the Department of Justice, among other things.
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criminal prosecution that is commenced in a State court and that
is against . . . any officer (or any person acting under
that officer) of the United States or of any agency thereof, in
an official or individual capacity, for or relating to any act
under color of such office . . . .”3
Federal officer jurisdiction “must be predicated upon
averment of a federal defense.” Mesa v. California, 489 U.S.
121, 139 (1989).

In Kolibash v. Comm. on Legal Ethics of W. Va.

Bar, 872 F.2d 571, 574 (4th Cir. 1989), the Fourth Circuit
allowed removal of a state disciplinary proceeding involving a
United States Attorney by liberally construing the defendant
United States Attorney’s answer as “akin to pleading a defense
of [prosecutorial] immunity.”
Rheinstein contends that, as counsel for the relator4 in a
qui tam proceeding under the False Claims Act, 31 U.S.C. § 3729
et seq. (“FCA”), he acted as an agent of the United States and

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Removal is appropriate where the proceeding is a civil
action or a criminal prosecution, however a “disciplinary
proceeding does not function as a civil action because it does
not involve two parties, one seeking damages or equitable relief
from another... Nor does a disciplinary proceeding function as a
criminal prosecution since punishment of an attorney is not the
goal of the disciplinary process.” Matter of Doe, 801 F.Supp.
478, 483 (D.N.M. 1992). In the instant case, this disciplinary
proceeding does not qualify as a civil action or criminal
prosecution.
4
Qui tam relators are not officers of the United States;
rather a relator “is merely a representative agent of the
Government, not an appointed ‘officer.’” Friedman v. Rite Aid
Corp., 152 F.Supp.2d 766, 771 (E.D. Pa. 2001).
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that claims predicated upon his acts as federal agent may be
removed. See Watson v. Philip Morris Companies, Inc., 551 U.S.
142, 151 (2007)(“Where a private person acts as an assistant to
a federal official in helping that official to enforce federal
law, some of these same considerations may apply.”(emphasis
added)).
Although counsel for a relator is an agent for the
Government for standing purposes in an FCA case, counsel is not
subject to the same type of control that a federal prosecutor is
and does not take direction from a Government officer.5
Moreover, Rheinstein has failed to show that he “was required by
the government to take actions that subjected [him] to liability
under state law.” Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d
838, 846 (S.D. Ill. 2006).
The U.S. District Court for the District of Maryland has
adopted the Maryland Rules of Professional Conduct, thus there
is no conflict between the ethical duties Rheinstein owed as
counsel for a relator and that he owed as a member of the
Maryland Bar. See Local Rule 704 (D.Md. 2016).

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Compare Winters v. Diamond Shamrock Chem. Co., 149 F.3d
387, 398 (5th Cir. 1998)(allowing removal under § 1442 in a case
against the manufacturers of Agent Orange because the Government
exercised control over the composition and production of Agent
Orange and compelled the defendants to deliver it under threat
of criminal sanctions).
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The ethical misconduct claims asserted by the AGC Complaint
are not based on the fact that Rheinstein was counsel in federal
qui tam litigation.

In fact, Rheinstein is alleged to have

engaged in a course of unethical conduct in regard to related
state and federal cases.
Rheinstein has not presented any plausible federal law
defense.

Moreover, Rheinstein’s attempted reliance upon 28

U.S.C. § 1442(a)(2) is unavailing.6
Accordingly, the Court does not have federal officer
jurisdiction over the instant case.

C.

Abstention Principles

Even if this Court were found to have the ability to
exercise jurisdiction over the instant case, it would abstain to
exercise that jurisdiction.
The Supreme Court recognizes “a strong federal policy
against federal-court interference with pending state judicial
proceedings absent extraordinary circumstances.” Middlesex Cty.
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28 U.S.C. § 1442(a)(2) provides removal for “[a] property
holder whose title is derived from any such officer, where such
action or prosecution affects the validity of any law of the
United States.” Rheinstein contends — without presenting
authority or persuasive reasoning — that a state court would not
have access to records of the pertinent qui tam cases, as they
are under seal and subject to the control of the federal court,
and would not have the power to obtain testimony from key
witnesses, such as government agents. Nor has Rheinstein
presented any plausible basis for concluding that § 1442(a)(2)
is at all pertinent to the instant motion.
7

Ethics Comm., 457 U.S. at 431.

Federal courts must abstain from

interfering if the state court proceedings “constitute an
ongoing state judicial proceeding,” if the proceedings
“implicate important state interests,” and if there is “an
adequate opportunity in the state proceedings to raise
constitutional challenges.” Id. at 432.
The attorney disciplinary action against Rheinstein is an
ongoing state judicial proceeding involving important state
interests in regard to the regulation of attorney misconduct.
The state courts provide adequate opportunity for Rheinstein to
defend himself and to raise any available constitutional issues.
The instant case presents no circumstances, much less
extraordinary circumstances, warranting the exercise of federal
jurisdiction over the instant case.
Accordingly, were the Court to have found federal
jurisdiction, it would nevertheless have abstained and remanded
the case to proceed in state court.

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V.

CONCLUSION
For the foregoing reasons:
1. Plaintiff Attorney Grievance Commission of Maryland’s
Motion for Remand for Lack of Federal Jurisdiction
[ECF No. 12] is GRANTED.
2. By separate Order the Court shall remand the case to
state court.

SO ORDERED, on Friday, March 17, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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