Conklin v. Kane

Filing 28

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Juan R Sanchez on 9/5/14. (ao)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHEN G. CONKLIN
v.
YVETTE KANE

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CIVIL ACTION
No. 13-3058

MEMORANDUM
Juan R. Sánchez, J.

September 5, 2014

This Memorandum addresses several motions filed by pro se Plaintiff Stephen G.
Conklin in connection with a sanctions proceeding removed to this Court pursuant to 28 U.S.C.
§§ 1442(a)(1), 1442(d)(1), and 1446. The underlying sanctions proceeding arises out of a
lawsuit Conklin initiated in state court against Yvette Kane, a federal judge sitting in the Middle
District of Pennsylvania, via a writ of summons. 1 Judge Kane’s attorney at the time, Assistant
United States Attorney (AUSA) Mark E. Morrison, removed the suit to federal court, but the
case was later remanded because removal was premature. Following remand, Conklin moved
for sanctions against Judge Kane and Morrison for, among other things, their role in removing
the case. After the state court scheduled a hearing on the motion, Morrison removed the
sanctions proceeding, and Conklin filed a timely motion to remand. Conklin later filed a motion
for this Court’s recusal. Having concluded there is no basis for recusal, the proceeding was
removable under 28 U.S.C. § 1442, and the notice of removal was timely filed, this Court will
deny Conklin’s motions to recuse and remand. Moreover, because it is apparent from the record
that Conklin’s underlying motion for sanctions is meritless, it too will be denied.

1

Although Conklin’s writ of summons does not refer to Defendant Kane’s status as a federal
judge, she is referred to herein as Judge Kane.

BACKGROUND
Conklin is a frequent litigant in the Middle District of Pennsylvania, and has, over a
number of years, been involved in multiple lawsuits presided over by Judge Kane. See, e.g.,
Conklin v. Purcell, Krug & Haller et al., No. 05-1726 (M.D. Pa. Aug. 23, 2005); Conklin v.
Warrington Twp. et al., No. 06-2245 (M.D. Pa. Nov. 20, 2006); Conklin v. Anthou, No. 1002501 (M.D. Pa. Dec. 7, 2010). In one of those cases, Conklin unsuccessfully sought Judge
Kane’s recusal, complaining that he and his attorney, Don Bailey, could not get a fair trial in the
Middle District because of bias and prejudice against them. See generally Conklin v. Anthou, No.
10-02501, 2011 WL 1303299 (M.D. Pa. Apr. 5, 2011).
More recently, Conklin initiated the above-captioned action against Judge Kane by filing
a writ of summons in the Dauphin County Court of Common Pleas on April 4, 2013. Service of
the writ of summons was completed on May 24, 2013, but Conklin had still not filed a complaint
or otherwise disclosed the nature of his suit by that date. On June 7, 2013, Morrison, acting on
behalf of Judge Kane, removed the case to federal court, relying on the federal officer removal
statute, 28 U.S.C. § 1442(a)(3). On August 27, 2013, Judge Timothy J. Savage, sitting by
designation in the Middle District of Pennsylvania, remanded the case back to state court,
concluding that because Conklin had not filed a complaint in state court, the district court could
not confirm that reliance on the federal officer removal statute was appropriate. Judge Savage
also observed the defendant had not filed a praecipe requesting the Prothonotary to issue a rule to
file a complaint pursuant to Pennsylvania Rule of Civil Procedure 1037(a), and “[h]ad she done

2

so, she would have forced Conklin to state what his claims are and what relief he is seeking.”
Mem. Op. 2 n.1, Conklin v. Kane, No. 13-01531 (M.D. Pa. Aug. 27, 2013), ECF No. 7. 2
Once the case resumed in state court, Morrison filed a praecipe for a rule to file a
complaint. Instead of filing the complaint and moving forward with the case, on October 31,
2013, Conklin filed a document titled “Plaintiff’s Emergency Motion for Sanctions With Request
for Hearing; Discovery.” See Morrison’s Brief in Opp’n to Pl.’s Emergency Mot. for Sanctions
Ex. B (Sanctions Motion). The Sanctions Motion, which is the subject of the proceeding
removed to this Court, was directed toward Judge Kane and Morrison. In it, Conklin argued
Morrison was not authorized under the United States Attorney’s Manual to represent Judge Kane
in the state court action. He also maintained that removing the case before Conklin filed a
complaint was an “egregious abuse of process” done for improper purposes to harass and
intimidate Conklin and cause unnecessary delay and expense.

Sanctions Motion 9.

As

sanctions, Conklin sought an injunction enjoining Morrison from representing Judge Kane and
“punitive relief.” In addition, Conklin argued Judge Kane should be estopped from obtaining
judgment for failure to prosecute because Morrison never properly served the rule to file a
complaint on Conklin, thus exempting him from any requirement to file a complaint in the action
he initiated more than six months earlier.
Shortly before filing the Sanctions Motion in state court, Conklin, through his attorney
Don Bailey, filed a complaint in the Middle District of Pennsylvania naming as defendants,
among others, Judge Kane, Morrison, and Peter J. Smith, the United States Attorney for the

2

Pennsylvania Rule of Civil Procedure 1037(a) provides “[i]f an action is not commenced by a
complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff
to file a complaint. If a complaint is not filed within twenty days after service of the rule, the
prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.” Pa. R. Civ. P.
1037(a).
3

Middle District of Pennsylvania. The complaint in this separate federal action, which is also
before this Court, sets forth various constitutional violations and specifically alleges that “[b]y
removing plaintiff’s Writ the defendants illegally terminated plaintiff’s state filed case
unlawfully seeking to prevent his opportunity to preserve his rights and further seeking to put the
control of the administration of his case directly in the most powerful prosecutorial office in the
nation.” Compl. ¶ 100, Conklin v. Kane, No. 13-2618, (M.D. Pa. Oct. 23, 2013). 3 With the
Sanctions Motion pending and a complaint filed in federal court naming Morrison and Judge
Kane as codefendants, Morrison withdrew his appearance as counsel for Judge Kane in the state
court action, and private counsel entered his appearance for Judge Kane on November 15, 2013.
On November 25, 2013, the Dauphin County Court issued an order scheduling a hearing on the
Sanctions Motion for December 9, 2013.

On December 6, 2013, Morrison filed a notice

removing the sanctions proceeding to this Court pursuant to 28 U.S.C. §§ 1442(a)(1), 1442(d)(1),
and 1446.

On January 6, 2014, Conklin filed the instant motion to remand the sanctions

proceeding back to state court.

3

During a teleconference held on the record with all parties to this removed sanctions
proceeding, Conklin argued his Sanctions Motion is entirely distinct from the federal complaint
because the Sanctions Motion is directed only at actions taken by Judge Kane and Morrison after
the state court case was remanded, whereas the federal complaint challenges actions taken in
connection with the initial removal. See Teleconference Tr. 32 (stating the federal complaint “is
for everything before remand, and the state thing is for everything after remand”). This
distinction is false. Even a cursory review of the Sanctions Motion reveals that it is predicated in
large part on Morrison’s filing of the notice of removal—the same action forming the basis of his
suit filed in federal court. See Sanctions Motion 8-9 (describing the removal action commenced
by Morrison and Judge Kane as “an egregious abuse of process; and, for purposes of this motion
. . . representative of an ongoing pattern of abuse in violation of Rule(s) 1023.1 et seq., and, Fed.
R. Civ. P. 11”); id. at 9 (stating Judge Kane and Morrison “commenced removal, in violation of
the foregoing Rules(s), for improper purposes of harassing and intimidating Plaintiff”).
Moreover, Conklin attached to the Sanctions Motion what he refers to as a “Safe Harbor” letter,
in which he demanded $20,000 as a sanction for filing the notice of removal.
4

DISCUSSION
Before turning to the merits of his other motions, this Court must address Conklin’s
motion for recusal. Conklin seeks recusal pursuant to 28 U.S.C. § 455(a), which requires a judge
to disqualify himself when “a reasonable person, with knowledge of all the facts, would conclude
that the judge’s impartiality might reasonably be questioned.” In re Kensington Int’l Ltd., 353
F.3d 211, 220 (3d Cir. 2003); accord United States v. Wecht, 484 F.3d 194, 213 (3d Cir. 2007).
Ultimately, whether recusal is appropriate is dependent upon whether the judge harbors “a deepseated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994).
Conklin’s chief complaint is what he refers to as the “inexcusable delay” associated with
the time that has elapsed between his motion for remand and its disposition. He contends this
Court is holding his case hostage for unspecified “nefarious purposes.” Mot. to Recuse 6.
Nothing in his motion, however, addresses how, if at all, this Court’s impartiality might
reasonably be questioned based on the delay Conklin perceives in adjudicating his motions.
Conklin also neglects to mention his own responsibility for the delay about which he complains.
Under the Middle District of Pennsylvania’s Local Rules of Civil Procedure, a party has fourteen
days after a filing a motion to file a brief in support. Conklin filed his motion for remand on
January 6, 2014, and his supporting brief on January 22, 2014. After the opposition was filed on
February 7, Conklin sought from this Court an extension of time to file a reply. This Court
granted him an extension until March 10, 2014. During that same period, Judge Kane moved to
dismiss the Sanctions Motion, which required another round of briefing. Conklin asked for
another extension to respond to the motion to dismiss, which was also granted, extending his
deadline to respond until April 14, 2014. Judge Kane then filed a reply on May 1. Because

5

Conklin sought and received multiple extensions in connection with briefing these motions, any
delay in resolving them is partially attributable to his own actions. 4 In any event, the manner in
which a court controls its docket is discretionary. See In re Fine Paper Antitrust Litig., 685 F.2d
810, 817 (3d Cir. 1982).

Conklin’s allegations of inexcusable delay therefore provide no

grounds for recusal and his motion will be denied. 5
Next, this Court must consider whether it may properly exercise removal jurisdiction
over this proceeding. Removal to federal court under 28 U.S.C. § 1442(a)(1) is proper if the
action is a “civil action” that is “directed to . . . any officer . . . of the United States . . . in an
official or individual capacity, for or relating to any act under color of such office.” Id. Section
1442(d)(1) clarifies that a “civil action” includes “any proceeding (whether or not ancillary to
another proceeding) to the extent that in such proceeding a judicial order, including a subpoena
for testimony or documents, is sought or issued.” 28 U.S.C. § 1442(d)(1). Conklin directed the
Sanctions Motion against Morrison, an officer of the United States, for acts taken as an AUSA
representing a federal judge. Nevertheless, in his reply brief, Conklin challenges whether this
proceeding is removable under § 1442, arguing Morrison was not acting “under color of such
office” when he acted on behalf of Judge Kane because he did not have authority to do so in a
state court proceeding not filed against her in her capacity as a federal judge.
4

Conklin’s motion for recusal, filed on August 13, 2014, has not been briefed. Conklin never
filed a brief in support, nor has a response been filed. Nevertheless, to avoid any further delay
associated with briefing this frivolous motion, the Court has decided to rule on it without the
benefit of a response.
5

Conklin also asserts this removed proceeding should have been assigned to Judge Savage. The
manner in which cases are assigned is irrelevant to whether this Court’s impartiality might be
reasonably be questioned. Moreover, Conklin did not raise this issue until filing his recusal
motion on August 13, 2014, approximately eight months after this Court was assigned the case,
and as he acknowledges, the Middle District of Pennsylvania has no local rule regarding the
assignment or reassignment of related cases.
6

To qualify for removal under § 1442, a federal officer must simply make an “adequate
threshold showing” that the acts at issue were taken under color of office. Jefferson Cnty., Ala.
v. Acker, 527 U.S. 423, 431-32 (1999). 6 This requirement is satisfied if the officer raises “a
colorable assertion of causality between the charged conduct and the asserted official federal
authority.” In re Pennsylvania, No. 13-1871, 2013 WL 4193960, at *9 (E.D. Pa. Aug. 15, 2013)
(citing Jefferson Cnty., 527 U.S. at 431-32). Though Conklin maintains Morrison essentially
acted on his own and outside his capacity as a federal officer when representing Judge Kane, the
Supreme Court has held that “[i]f the question raised is whether [federal officers] were engaged
in some kind of ‘frolic of their own’ in relation to respondent, then they should have the
opportunity to present their version of the facts to a federal, not a state, court.” Willingham v.
Morgan, 395 U.S. 402, 409 (1969). Here, Conklin moved for sanctions against Morrison for acts
taken in his capacity as an AUSA representing a federal judge. This alone is more than sufficient
to find the existence of removal jurisdiction under § 1442, a provision “which is broadly
construed.” Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994) (citing
Kolibash v. Comm. on Legal Ethics of the W. Va. Bar, 872 F.2d 571, 576 (4th Cir. 1989)). 7

6

Under Jefferson County, a federal officer seeking to remove a case pursuant to § 1442 must
also raise “a colorable federal defense.” 527 U.S. at 431. In connection with the instant
removed proceeding, this Court is called upon to determine, among other things, whether
Morrison acted appropriately as counsel under Federal Rule of Civil Procedure 11 when
removing an action to federal court and whether Conklin has standing to challenge the decision
by the United States Attorney’s Office to provide representation to Judge Kane under the United
States Attorney’s Manual and 28 C.F.R. § 50.15, a federal regulation. Conklin does not argue
there are no colorable federal defenses associated with the removed proceeding, and this Court
concludes such defenses are present.
7

Conklin also argues that because only Morrison filed the notice of removal, the proceeding
should not have been removed as to Judge Kane. This argument fails because “it is settled that
the filing of a petition for removal by a single federal officer removes the entire case to the
federal court.” Fowler v. S. Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir. 1965); see also
Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998) (“Federal officer removal
7

The closer question is not a jurisdictional but a procedural one—whether Morrison timely
filed his notice of removal pursuant to 28 U.S.C. § 1446(g). Conklin filed the Sanctions Motion,
which gave rise to the removable proceeding, on October 31, 2013. He argues the notice of
removal was untimely when filed on December 6, 2013—thirty-six days after the filing of the
Sanctions Motion—because under § 1446, there is a thirty-day limit for filing a notice of
removal. Morrison contends the notice of removal was timely under § 1446(g) because the
thirty-day clock runs from the date he received notice of the order setting a hearing on the
Sanctions Motion (which was issued on November 25, 2013), not the motion itself.
Under § 1446(g), in connection with a proceeding removable under § 1442(a) in which “a
judicial order for testimony or documents is sought or issued or sought to be enforced,” the
removing party may file a notice of removal “not later than 30 days after receiving, through
service, notice of any such proceeding.” 28 U.S.C. § 1446(g). Conklin’s motion for sanctions
sought the imposition of sanctions or, alternatively, a hearing, discovery, and an order to show
cause why Judge Kane and Morrison should not be subject to sanctions. See, e.g., Sanctions
Motion 1. Because Conklin’s October 31, 2013, motion sought a judicial order for testimony or
documents, the motion itself, which was served on Morrison, provided notice of a removable
proceeding. Cf. In re Pennsylvania, 2013 WL 4193960, at *12 (“Section 1446(g) contemplates
the removal of a proceeding once the federal officer receives ‘notice’ that it will be asked to
produce testimony or documents.”).
The inquiry does not end there because subsection (g), which was added to § 1446 in
2011, has been interpreted to “contemplate[] that the same § 1442(a) proceeding could be
removed at more than one juncture.” Id. at *11; see 28 U.S.C. § 1446(g) (stating a notice of
constitutes an exception to the general removal rule under 28 U.S.C. § 1441 and § 1446 which
require all defendants to join in the removal petition.”).
8

removal is timely if it is filed within thirty days of receiving notice regarding “a proceeding in
which a judicial order for testimony or documents is sought or issued or sought to be enforced”)
(emphasis added). This Court agrees with the district court’s interpretation of the statute in In re
Pennsylvania, the only case to have considered subsection (g), and finds that § 1446(g)
contemplates permitting a federal officer to remove the same proceeding at multiple junctures.
Thus, although the thirty-day clock was triggered when Conklin filed his motion for sanctions,
this Court must determine whether the state court order scheduling a hearing “re-triggered” that
clock.
To the extent § 1446(g) is ambiguous on this point, its legislative history reveals the
provision was drafted with help from the Department of Justice to provide federal officers with
multiple opportunities to remove a proceeding in which their testimony or documents are sought.
See H.R. Rep. No. 112-117(I) at 6 (2011). As the district court observed, the House Report
explained that the Justice Department typically ignored subpoenas at first, but wanted to
maintain its ability to “re-trigger” the removal period when it received notice of a party’s motion
to enforce, the point at which the Department could no longer ignore the subpoena. Id.; In re
Pennsylvania, 2013 WL 4193960, at *11.

Moreover, because § 1446(g) applies only to

proceedings removable under § 1442, the federal officer removal statute, it must be considered in
tandem with this provision, which reflects the underlying principle “[t]hat a federal officer or
agent shall not be forced to answer for acts performed under color of his office in anything but a
federal forum.” Kolibash, 872 F.2d at 576. To effectuate this principle, the federal officer
removal statute must be “broadly construed.” Sun Buick, Inc., 26 F.3d at 1262; Willingham, 395
U.S. at 407 (“Congress has decided that federal officers . . . require the protection of a federal

9

forum. This policy should not be frustrated by a narrow, grudging interpretation of
§ 1442(a)(1).”).
In light of these principles and policies, the Court finds the state court’s November 25,
2013, order scheduling a hearing on the Sanctions Motion retriggered the thirty-day clock and,
accordingly, Morrison’s notice of removal filed on December 6, 2013, is timely under § 1446(g).
As a practical matter, the court order scheduling the hearing for a date certain was the first event
that made clear that the federal officer (Morrison) needed to take action, thus triggering another
opportunity for removal.

See In re Pennsylvania, 2013 WL 4193960, at *12 (“Congress

intended to provide a federal officer with an opportunity to remove a proceeding when it would
be clear that [the officer] needed to take action, even if it meant re-setting the clock to allow for a
second or third chance”) (alterations omitted). Although the order setting the hearing did not
explicitly require the production of documents or Morrison’s testimony, it was the functional
equivalent of such an order, given the context in which it was issued. As noted above, Conklin
sought, through a hearing, testimony or documents in connection with his Sanctions Motion.
The state court order responded to those requests and when it ordered a hearing on the motion
rather than disposing of it on the papers, 8 Morrison could reasonably infer his testimony would
be required, as assessing the propriety of issuing sanctions is often, if not always, a fact-based
enterprise. Further, the motion accused Morrison of removing the case for an improper purpose,
and thus put his conduct and his state of mind directly at issue. For these reasons, the notice of
removal is timely and the motion for remand will be denied.
8

See Pa. R. Civ. P. 208.4 (“At the initial consideration of a motion, the court may enter an order
that . . . disposes of the motion, or . . . sets forth the procedures the court will use for deciding the
motion which may include . . . the holding of an evidentiary hearing.”); Pa. R. Civ. P. 1023.1
Note (“The court in its discretion at any stage of the proceedings may deny a motion for
sanctions without hearing or argument.”).
10

Although the state court elected to hold a hearing regarding Conklin’s Sanctions Motion,
this Court declines to follow suit. Having had the benefit of the parties’ briefs and supporting
documentation, and after holding a teleconference on the record, there is a sufficiently developed
factual record before this Court to conclude Conklin’s Sanctions Motion is meritless. The Court
will construe the motion as based on Federal Rule of Civil Procedure 11, 9 which provides, in
pertinent part, that every pleading, written motion, and other paper must be signed by at least one
attorney of record who represents that
to the best of the person’s knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances: (1) it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; (2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery; and (4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a lack of
information.
Fed. R. Civ. P. 11(b).
Based on the Rule’s language, sanctions are generally only imposed on those who sign an
offending document—whether an attorney or an unrepresented party. Because Judge Kane was
represented and did not sign the notice of removal or any other document filed in the state court
litigation, she is not subject to any sanctions related to those filings. Although the Court may
consider whether a client should be held accountable for her part in causing a violation of Rule
9

Rule 11 is only cited in passing in the motion, but to the extent Pennsylvania Rule of Civil
Procedure 1023.1, which governs the imposition of sanctions in state court, conflicts with Rule
11, the federal rule applies pursuant to the Erie doctrine. See Bus. Guides, Inc. v. Chromatic
Commc’ns Enter., Inc., 498 U.S. 533, 552 (1991) (finding Rule 11 is procedural in nature and
“consistent with the Rule Enabling Act’s grant of authority [to] streamline the administration and
procedure of the federal courts.”); Hanna v. Plumer, 380 U.S. 460, 472 (1965) (“One of the
shaping purposes of the Federal Rules is to bring about uniformity in the federal courts by
getting away from local rules.”).
11

11, see Fed. R. Civ. P. 11 advisory committee’s note, Conklin does not contend Judge Kane
misrepresented any facts or otherwise personally engaged in specific sanctionable conduct. Even
if the attempted removal of the state court case warranted sanctions, which it does not, the
propriety of removing a case is a legal issue that cannot form the basis for imposing monetary
sanctions against Judge Kane. See Fed. R. Civ. P. 11(c)(5)(A) (stating a court may not impose
monetary sanctions on a represented party for a violation of Rule 11(b)(2), which addresses the
taking of frivolous legal positions).
As to Morrison, the standard for testing an attorney’s conduct to determine whether to
impose sanctions is whether the conduct was “objectively reasonable under the circumstances.”
Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994). This inquiry is guided by the principle that
“[s]anctions are to be applied only in the exceptional circumstance where a claim or motion is
patently unmeritorious or frivolous.” Ario v. Underwriting Members of Syndicate, 618 F.3d 277,
297 (3d Cir. 2010). Conklin sought relief against Morrison in state court on three bases: (1)
Morrison removed the case without a legal foundation and for an improper purpose; (2) Morrison
had no authority under the United States Attorney’s Manual to act on Judge Kane’s behalf; (3)
Morrison’s failure to serve Conklin with the rule to file a complaint constituted grounds to enjoin
him from seeking a judgment of non-prosecution in the state court case. Not one of these
arguments supports the imposition of sanctions.
First, Morrison’s decision to file the notice of removal is not subject to sanctions because
it was objectively reasonable under the circumstances and the basis for doing so was not
“patently unmeritorious or frivolous.” Id. The available facts all show that Conklin’s state court
suit was most likely filed against Judge Kane in her official capacity. Conklin has demonstrated
a clear pattern of animus toward members of the federal judiciary, Judge Kane in particular. See,

12

e.g., Anthou, 2011 WL 1303299, at *2 (noting Conklin’s numerous “disrespectful and
impertinent references to [Judge Kane] and other named judicial officers in the Middle District
of Pennsylvania” in his recusal motion).

Informed by Conklin’s litigation history, it was

reasonable for Morrison to believe Conklin initiated suit against Judge Kane based on acts
related to her status as a federal judge. This conclusion is buttressed by Conklin’s steadfast
refusal to divulge any facts related to the lawsuit he filed in state court. After initiating the
lawsuit on April 4, 2013, Conklin did not file a complaint, despite having had the opportunity to
do so both before and after the case was removed and later remanded. Doing so would have
immediately clarified whether there was, or was not, a legal basis to remove this case under the
federal officer removal statute. When this Court asked Conklin to clarify the nature of his state
court claims on the record for the purposes of deciding the Sanctions Motion, Conklin again
refused. See Teleconference Tr. 28 (Conklin stating, when asked about the basis for his state
court complaint, “[t]hat’s not up for discussion. There’s no [c]omplaint, there’s no federal
question, and that goes right back to to this removal and for the hearing thing.”).
For over a year, Conklin has suppressed the only remaining unavailable facts that bear
upon his Sanctions Motion, facts which are entirely under his control. In light of Conklin’s
refusal to specify the nature of his claims, this Court can only logically infer that his lawsuit was
in fact directed toward a judicial officer. Moreover, although Judge Savage concluded removal
was premature when the notice was filed in June 2013, there was still an arguable legal basis for
removing the case when Morrison did. As noted above, unlike other removal statutes, the federal
officer removal statute is interpreted broadly in favor of removal to effectuate congressional
intent that federal officers have access to a federal forum. Willingham, 395 U.S. at 407; see also
Acker, 527 U.S. at 431 (noting “[u]nder the federal officer removal statute, suits against federal

13

officers may be removed despite the nonfederal cast of the complaint”). That Judge Savage
decided to remand the action does not in and of itself make Morrison’s decision to remove the
case frivolous.
Second, Conklin has no standing, through a Sanctions Motion or otherwise, to challenge
the United States’ decision to assign an AUSA to represent Judge Kane in a state matter it
believed was filed against her in her capacity as a federal judge. See Falkowski v. EEOC, 783
F.2d 252, 253-54 (D.C. Cir. 1986) (holding the Department of Justice’s refusal to provide
government employee with counsel in action brought against her by subordinate was an action
committed to agency discretion and not subject to review). Conklin’s suggestion that his state
court case involves alleged conduct by Judge Kane outside the scope of her employment is not
only unsupported by any complaint filed in state court, it is also irrelevant to the decision of the
United States Attorney’s Office to represent her, as “it is for the Government to determine
whether federal employees should receive representation.” Rodriguez v. Shulman, 843 F. Supp.
2d 96, 100 (D.D.C. 2012); 28 C.F.R. § 50.15 (“[A] federal employee . . . may be provided
representation in civil . . . proceedings in which [she] is sued . . . when the actions for which
representation is requested reasonably appear to have been performed within the scope of the
employee’s employment and the Attorney General or his designee determines that providing
representation would otherwise be in the interest of the United States.”). Even if Conklin did
have standing to challenge the decision to represent Judge Kane, because this Court has
concluded it was reasonable for Morrison to assume that Conklin’s suit was directed toward

14

Judge Kane in her capacity as a judge, any such challenge by Conklin would not provide a basis
for imposing sanctions. 10
Conklin’s third basis for sanctions, Morrison’s failure to serve Conklin with the rule to
file a complaint, is now moot. On September 18, 2013, the prothonotary issued the rule upon
Conklin to file a complaint, but as Conklin represented in his motion, he had not been served
with the rule as of the filing of his Sanctions Motion. His Sanctions Motion therefore challenged
what he believed at the time was Judge Kane and Morrison’s intent to seek a non-prosecution
judgment as of November 1, 2013. No non pros judgment was entered on November 1, 2013.
Instead, the defect in service was remedied by Judge Kane’s private counsel, and Conklin was
served with the rule to file a complaint on November 19, 2013, (the very relief Conklin requested
in his motion). See Sanctions Motion 14 (seeking relief requiring Judge Kane to retain a private
attorney to serve and issue the rule to file a complaint upon Conklin). Incidentally, Conklin still
failed to file a complaint. Because no complaint had been filed by December 9, 2013, in
accordance with the relevant procedural rules, Conklin was served with a notice of intent to enter
judgment of non-prosecution. On December 23, 2013, Judge Kane filed a praecipe for entry of
judgment of non-prosecution in the state court action, and judgment was entered against Conklin.
In sum, because this proceeding was properly removed and there is no reason to impose
sanctions in these circumstances, the Court will deny Conklin’s motion to remand and his motion
10

Moreover, Conklin is not entitled to any relief for any purported violation of the United States
Attorney’s Manual. See, e.g., United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000)
(“To begin, it is clear that the USAM does not create any substantive or procedural rights,
including discovery rights. The USAM explicitly states that [t]he Manual provides only internal
Department of Justice guidance. It is not intended to, does not, and may not be relied upon to
create any rights, substantive or procedural, enforceable at law by any party in any manner civil
or criminal.”); United States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999) (“[V]iolations of
[DOJ] Manual policies by DOJ attorneys or other federal prosecutors afford a defendant no
enforceable rights.”).
15

for sanctions. However, because there is still no complaint in state court, there remains no basis
for removal other than the sanctions proceeding disposed of by this Memorandum and the
accompanying Order.

Although it appears the state court case is now closed because Conklin

has chosen the entry of judgment against him in lieu of filing a complaint, this Court has no
jurisdiction to take any action other than that contemplated by the ancillary removed proceeding.
See 28 U.S.C. § 1442(d)(1). What, if anything, remains of Conklin’s state court action must
therefore be remanded.
An appropriate order follows.
BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

16

.