COMMONWEALTH'S MOTION TO APPOINT NEW COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA, RESPONDENT et al v. HARRIS

Filing 47

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 10/2/2013. 10/3/2013 ENTERED AND COPIES E-MAILED.(kk, )

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

MISCELLANEOUS ACTION
N0.13-62

v.
FRANCIS BAUER HARRIS

MEMORANDUM OPINION
OCTOBER 2, 2013

RUFE,J.

Before the Court is the Commonwealth's Motion for Reconsideration of its
Memorandum Opinion dated August 22, 2013, and the Defender Association of Philadelphia's
response thereto. 1 For the reasons below, the Motion will be denied.
I.

Standard of Review

A motion for reconsideration, or, to use the words of Fed. R. Civ. P. 59( e), a motion to
alter or amend judgment, "is extremely limited. Such motions are not to be used as an
opportunity to relitigate the case; rather, they may be used only to correct manifest errors of law

1

Throughout this litigation, the parties and the Court have referred to the party seeking removal
to this court as the Federal Capital Defender Office ("FCDO"). As discussed more fully below at
Part II.B, the actual party seeking removal is the Defender Association, of which the FCDO is a
part. Because the activities that form the basis for the dispute between the Commonwealth and
the Defender Association concern representation by attorneys who are members of the FCDO
(and by extension the Defender Association), the Court will continue to use the terms FCDO and
Defender Association interchangeably, except in its discussion in Part II.B.

or fact or to present newly discovered evidence."2 The Third Circuit has held that "a judgment
may be altered or amended if the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling law; (2) the availability of new
evidence that was not available when the court granted the motion [to be reconsidered]; or (3) the
need to correct a clear error oflaw or fact or to prevent manifest injustice.''

II.

3

Discussion

The Commonwealth has not alleged that an intervening change in the law has occurred.
Nor does it seriously contend that it has discovered new evidence that was not available at the
time the motion was decided. Instead, it states that "through continued research" it has
"discovered" a series of cases that were decided before this Court issued its Order on August 22,
2013. 4 It should go without saying that "new evidence" means material discovered after a
judgment or order that could not have been found with due diligence beforehand and that could
2

Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011); see also Howard Hess Dental Labs. Inc. v.
Dentsply Int '1, Inc., 602 F .3d 23 7, 251 (3d Cir. 201 0); Harsco Corp. v. Zlotnicki, 779 F .2d 906,
909 (3d Cir. 1985).
3
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669,677 (3d Cir. 1999).
4
The Court finds it particularly curious that the Commonwealth identifies as new evidence
"three orders and opinions by Judge Richard A. Caputo" of the Middle District ofPennsylvania.
Doc. No. 44-1, at 9. In its Order, this Court cited the same causes of action that the
Commonwealth cites in its Motion for Reconsideration. The orders of Judge Caputo entered on
August 16, 2013, were in no way unavailable before this Court's Order of August 22, 2013.
More to the point, the Commonwealth asserted early in these proceedings that this Court should
abstain from ruling on the FCDO's motion to dismiss in part because of the Commonwealth's
"important interest in ensuring that the practice of law in Pennsylvania state courts is ethical."
Doc. No.6, at 16. Notwithstanding Judge Caputo's Orders, two cases from the Eastern District
ofPennsylvania with materially indistinguishable facts have come down in favor of the FCDO.
No. 13-cv-2242 (Order of Sept. 6, 2013); No. 13-cv-1871 (Order of Aug. 15, 2013). The
Commonwealth's heavy reliance on Judge Caputo's decision while turning a blind eye to cases
from this jurisdiction that are also directly on point and directly adverse to its position smacks of
the kind oflawyerly gamesmanship that the Pennsylvania Rules of Professional Conduct seek to
stem. See Pa. R. Professional Conduct 3.3(a)(2). And although the Commonwealth filed is
motion for reconsideration one day before Judge Schiller's order in No. 13-2242, the Court notes
that the Commonwealth's duties of candor "continue to the conclusion of the proceeding.'' !d.
3 .3(c).
2

be used to prove a fact. 5 New evidence is not additional legal argumentation that the
Commonwealth could have relied on in its briefing but did not, and it is certainly not a case that
the Court has already cited.
Because there has been no intervening change in controlling law nor has the
Commonwealth adduced new evidence, the only possible ground for reconsideration is to correct
a clear error of law or fact or to prevent manifest injustice. The Commonwealth has failed to
allege any ground sufficient to grant its motion.

A. The "Heightened Burden" Argument
In its Motion, the Commonwealth argues that the FCDO as a "private party" needs to
meet a higher burden for removal than a federal officer and then jumps to the conclusion that this
"heightened burden" means that the federal officer removal statute should be strictly construed
and all doubts resolved in favor of remand. Because remand is favored, the argument continues,
this Court should grant the Commonwealth's motion for reconsideration.
Based on the cases cited by the Commonwealth, the Court understands it to argue that
because the FCDO is not itself a federal officer, it needs to establish that it acted under the
"direct and detailed control" of a federal officer in performing the acts relevant to the removed
controversy. 6 Otherwise, the FCDO may not remove pursuant to 28 U.S.C. § 1442. This
argument just renews the Commonwealth's earlier rejected position (and one that it conceded in
a different, related casef that the FCDO does not act under a federal officer. The

5

See Black's Law Dictionary 635 (9th Ed. 2009) (defining "evidence" as "[s]omething
(including testimony, documents and tangible objects) that tends to prove or disprove the
existence of an alleged fact").
6
E.g., New Jersey Dep't ofEnvtl. Prot. v. Dixo Co., Inc., 2006 WL 2716092, at *3 (D.N.J. Sept.
22, 2006).
7
No. 13-cv-1871, June 27, 2013, Hr'g Tr. 54:13-16.
3

Commonwealth has failed to demonstrate that the Court's prior ruling 8 was erroneous, let alone
clearly so.
The Commonwealth's briefing states that because the FCDO is not a federal officer,
"[t]his Court should have applied the standard that removal statutes are to be strictly construed,
with all doubts to be resolved in favor ofremand." 9 But in support of that proposition, which
runs directly counter to Supreme Court case law, 10 the Commonwealth cites a case interpreting
28 U.S.C. § 1441, the general removal statute, not the federal officer removal statute at issue
here. 11 The Commonwealth cites nothing to suggest that when a non-federal officer acts under a
federal officer, the interpretation of§ 1442 changes dramatically; the cases merely make the
commonsense point that when a private party seeks the protection of the Federal Officer
Removal Statute, it needs to establish that for the purposes of the lawsuit at hand it may as well
be a federal officer. 12 Characterizing this requirement as a "special burden" does not make
removal impossible. And even if a strict construction of§ 1442 were appropriate, that would not
end the inquiry into whether the FCDO may remove, as the Commonwealth appears to argue it
would. 13

8

Doc. No. 43.
Doc. No. 44-1, at 6.
10
Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007) ("The words 'acting
under' are broad, and this Court has made clear that the statute must be 'liberally construed."').
11
Doc. No. 44-1, at 6 (citing Brown v. Jevic, 575 F.3d 322 (3d Cir. 2009)). Brown also analysed
the bankruptcy removal statutes and the Class Action Fairness Act of2005. Id. at 325.
12
Freiberg v. Swinerton & Walberg Prop. Servs., Inc., 245 F. Supp. 2d 1144, 1150 (D. Colo.
2002) ("[P]rivate actors seeking to benefit from[§ 1442's] provisions bear a special burden of
establishing the official nature of their activities.").
13
As the Commonwealth puts it: "this Court applied a broad construction of§ 1442 when it
should have applied the more strict construction of§ 1442 in favor of state court adjudication of
the Commonwealth's state court pleading to appoint new counsel for Harris for his state court
proceeding. Consequently, the Commonwealth respectfully requests that this Court grant the
Commonwealth's instant motion to reconsider and remand this case to state court." Doc. No. 44-

9

4

The FCDO has convinced the Court that it acts under federal officers because it conducts
federally-funded legal assistance programs and provides a service to indigent defendants that the
"Government itselfwould [otherwise] have had to perform." 14 The Court will not disturb its prior
ruling here.

B. The "Person "Argument
Next, the Commonwealth argues for the first time that the FCDO is not a "person" for
federal removal purposes but a "group" or subunit of the Defender Association of Philadelphia.

15

The FCDO responds that the removing party in the case is the Defender Association of
Philadelphia, an independent, non-profit corporation.
In its Memorandum Opinion of August 26, 2013, this Court held that the FCDO is a
person for the purposes of its analysis of the pending motions. It based its ruling on the fact that
the FCDO is a part of the Defender Association of Philadelphia. It would have been more precise
to state that for the purposes of the Court's discussion, the Court would, as a shorthand, refer to
the Defender Association as the FCDO because the Commonwealth appears to object to the
Defender Association's practices in managing the FCDO. In any event, the removing party is
indeed the Defender Association ofPhiladelphia.
The Defender Association manages the FCDO and acts under a federal officer for all the
reasons stated above and in this Court's Memorandum Opinion of August 26, 2013. Because the
FCDO is a part of the Defender Association, it is not possible to direct a civil action against the
FCDO without simultaneously targeting the Defender Assocation. The Defender Association is a

1 at 7. The sentence beginning "Consequently" is a classic non sequitur; a strict reading of the
statute would not bar removal in all cases.
14
!d. at 154.
15
Although "a motion for reconsideration should not raise new arguments that the party could
have made previously," Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013), in the interest of
completeness and because it raises jurisdictional issues, the Court will address this argument.
5

nonprofit corporation. It is beyond dispute that corporate entities are "persons" within the
meaning of the removal statute. 16 The fact that both parties and this Court have consistently
referred to the party seeking removal here as "the FCDO" does not change the fact that the party
alleged to have violated 18 U.S.C. § 3599 and the person who removed pursuant to§ 1442 is the
Defender Association.

III.

Conclusion

A motion for reconsideration is not an opportunity to relitigate issues that have been
thoroughly addressed before. Absent a change in controlling law, newly discovered evidence, a
showing of clear legal error beyond a mere difference of opinion, or the need to prevent manifest
injustice, a motion to alter or amend a judgment will be denied. This motion disingenuously casts
legal argument that the Court has already rejected as "new evidence." It also advances a specious
and sophistic characterization of the legal status of the removing party. For the reasons stated in
this Opinion and the Opinion of August 22, 2013, the Commonwealth's Motion for
Reconsideration is denied. An appropriate Order follows.

16

Bouchard v. CBS Corp., No. 11-66270, 2012 WL 1344388, at *9 (E.D. Pa. Apr. 17, 2012).
6