Commonwealth of Pennsylvania v. Sepulveda et al
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 8/16/13. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
In Re: Proceedings Before the Court of
Common Pleas of Monroe County, Pa. to
Determine Propriety of State Court
Representation by Defender Association
CIVIL ACTION NO. 3:13-CV-511
COMMONWEALTH OF PENNSYLVANIA,
In Manuel Sepulveda’s (“Mr. Sepulveda”) pending Post Conviction Relief Act
(“PCRA”) proceeding challenging his conviction in the Court of Common Pleas of Monroe
County, Pennsylvania, the PCRA court scheduled a hearing to determine whether the
Federal Community Defender Organization, Eastern District of Pennsylvania (the “FCDO”)1
may or should lawfully continue to represent Mr. Sepulveda in his PCRA proceeding.
Relying on the federal officer removal statute, 28 U.S.C. § 1442, Respondent Defender
Association of Philadelphia removed the proceeding involving the hearing to this Court.2
The named movant Defender Association of Philadelphia’s Federal Court
Division is a Community Defender Organization 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 FCDO. The FCDO is not a juridical entity,
but rather is a subunit of the named movant, Respondent Defender Association of
At least six other similarly situated proceedings have been removed to federal
court. Three are pending in this District, Commonwealth v. Housman, No. 132103 (M.D. Pa.) (Caputo, J.); Commonwealth v. Dick, No. 13-561 (M.D. Pa.)
(Caputo, J.); Commonwealth v. Dowling, No. 13-510 (M.D. Pa.) (Caputo, J.), and
three are pending in the United States District Court for the Eastern District of
Pennsylvania, Commonwealth v. Johnson, No. 13-2242 (E.D. Pa.) (Schiller, J.);
Commonwealth v. Mitchell, No. 13-1871 (E.D. Pa.) (McLaughlin, J.);
Mr. Sepulveda’s PCRA proceeding, however, has not been removed and remains in state
court. Now before the Court are the Commonwealth’s Motion to Remand (Doc. 9) and the
Defender Association of Philadelphia’s Motion to Dismiss (Doc. 8) the proceeding.
The underlying proceeding in this removed action seemingly implicates several
issues of federal law involving the construction of federal statutes and the application of
relevant federal decisional authority and legal principles. Nonetheless, I am of the view that
the FCDO fails to satisfy its burden to establish the existence of federal jurisdiction under
the federal officer removal statute. Specifically, because the “acting under” requirement for
removal under 28 U.S.C. § 1442(a)(1) is not satisfied in this case, the Commonwealth’s
motion to remand this action to the Court of Common Pleas of Monroe County will be
granted. And, since the Commonwealth’s motion to remand will be granted, the FCDO’s
motion to dismiss will be denied as moot.
Relevant Factual Background
Manuel Sepulveda was convicted of two counts of first-degree murder and related
counts, and sentenced to death on January 27, 2003, in the Court of Common Pleas of
Monroe County, Pennsylvania. Mr. Sepulveda’s convictions and sentence of death were
affirmed by the Pennsylvania Supreme Court on August 19, 2004. Mr. Sepulveda’s petition
for certiorari review was denied on February 21, 2006.
Thereafter, Mr. Sepulveda filed a motion in this Court for leave to proceed in forma
pauperis and appointment of federal habeas corpus counsel. See Sepulveda v. Beard, et
al., No. 06-cv-0731, (M.D. Pa. Apr. 7, 2006). On that same day, Mr. Sepulveda’s request
to proceed in forma pauperis was granted, and the Capital Habeas Unit of the Federal
Public Defender Office for the Middle District of Pennsylvania and the FCDO were
Commonwealth v. Harris, No. 13-062 (E.D. Pa.) (Rufe, J.).
appointed as co-counsel for Mr. Sepulveda’s to-be-filed habeas corpus petition.
On June 7, 2006, after the Governor of Pennsylvania signed a warrant scheduling
execution for July 27, 2006, Mr. Sepulveda petitioned this Court for a stay of execution,
which was granted on June 14, 2006.
Thereafter, on August 16, 2006, the FCDO, in the person of then-FCDO lawyer
Michael Wiseman, entered its appearance for Mr. Sepulveda in the Court of Common Pleas
on the homicide case.
Following a series of Orders on his applications for extensions of time, Mr. Sepulveda
filed a timely petition for habeas corpus relief in this Court on December 4, 2006. On
December 6, 2006, on Mr. Sepulveda’s unopposed motion, the federal habeas corpus
proceedings were stayed pending exhaustion of state remedies.
On January 2, 2007, Mr. Sepulveda filed an amended PCRA petition. After holding
an evidentiary hearing, the PCRA court denied Mr. Sepulveda’s petition on October 11,
2007. Mr. Sepulveda appealed to the Pennsylvania Supreme Court.
On November 28, 2012, the Pennsylvania Supreme Court issued an Opinion holding
that Mr. Sepulveda’s trial “counsel’s performance related to the development and
presentation of mitigating evidence was constitutionally deficient.” Commonwealth v.
Sepulveda, 55 A.3d 1108, 1130 (Pa. 2012). Thus, the Pennsylvania Supreme Court
remanded to the PCRA court for the limited purpose of determining whether counsel’s
deficient performance prejudiced Mr. Sepulveda. See id. at 1131. The Pennsylvania
Supreme Court concluded its opinion by addressing the FCDO’s appearance as counsel
in the PCRA proceeding:
[T]he FCDO simply entered its appearance in this case to represent appellant
in his state postconviction challenge. The FCDO filed a petition for a writ of
habeas corpus on appellant's behalf in the U.S. District Court for the Middle
District of Pennsylvania on December 4, 2006. The PCRA court notes in its
opinion that federal counsel were appointed by a federal district court judge to
file a federal habeas corpus petition; instead, the FCDO proceeded to
Pennsylvania state court. The federal proceedings have been stayed pending
resolution of appellant's PCRA claims.
Appellant is represented by three FCDO lawyers: Michael Wiseman, Esquire,
Keisha Hudson, Esquire, and Elizabeth Larin, Esquire. Attorney Wiseman is
lead counsel and he signed the brief. Recently, in another capital matter,
Commonwealth v. Abdul–Salaam, 42 A.3d 983 (Pa. 2012), the FCDO withdrew
its appearance and advised that Attorney Wiseman, lead counsel there too,
would be representing Abdul–Salaam on a pro bono basis, listing a private
address for Wiseman. No such notice has been entered here. It is unclear
whether Attorney Wiseman remains a member of the FCDO for some cases,
while acting as “ pro bono ” counsel in other cases. If federal funds were used
to litigate the PCRA below- and the number of FCDO lawyers and witnesses
involved, and the extent of the pleadings, suggest the undertaking was
managed with federal funds- the participation of the FCDO in the case may
well be unauthorized by federal court order or federal law. Accordingly, on
remand, the PCRA court is directed to determine whether to formally appoint
appropriate post-conviction counsel and to consider whether the FCDO may
or should lawfully represent appellant in this state capital PCRA proceeding.
See 18 U.S.C. § 3599(a)(2) (authorizing appointment of counsel to indigent
state defendants actively pursuing federal habeas corpus relief from death
Id. at 1151.
Commonwealth v. Mitchell
Less than two months after it rendered its decision in Sepulveda, 55 A.3d 1108, the
Pennsylvania Supreme Court, on January 10, 2013, issued a per curiam order in the PCRA
case of Commonwealth v. Mitchell, No. 617 CAP (the “Mitchell Order”). Upon consideration
of the Commonwealth’s motion to remove counsel in Mitchell, the Pennsylvania Supreme
Court remanded to the PCRA court to “determine whether current counsel, the Federal
Community Defender Organization (“FCDO”) may represent appellant in this state capital
PCRA proceeding; or whether other appropriate post-conviction counsel should be
appointed.” Id. To resolve that issue, the Pennsylvania Supreme Court provided the
[T]he PCRA court must first determine whether the FCDO used any federal
grant monies to support its activities in state court in this case. If the FCDO
cannot demonstrate that its actions here were all privately financed, and
convincingly attest that this will remain the case going forward, it is to be
removed. If the PCRA court determines that the actions were privately
financed, it should then determine “after a colloquy on the record, that the
defendant has engaged counsel who has entered, or will promptly enter, an
appearance for the collateral review proceedings.” See Pa. R. Crim. P.
904(H)(1)(c). We note that the order of appointment produced by the FCDO,
issued by the U.S. District Court for the Eastern District of Pennsylvania at No.
2:11-cv-02063-MAM, and dated April 15, 2011, appointed the FCDO to
represent appellant only for purposes of litigating his civil federal habeas
corpus action, and the authority of the FCDO to participate in this state
collateral proceeding is not clear. See 18 U.S.C. § 3599(a)(2) (authorizing
appointment of counsel to indigent state defendants actively pursuing federal
habeas corpus relief from death sentence).
Justice Todd, joined by Justice Baer, filed a dissenting statement, noting that the
court directed “the removal of counsel without any stated analysis of the issues involved,
issues which require the construction of federal statutes and other authority, consideration
of the relationship between federal and state court systems in capital litigation, and
consideration of counsel’s role therein.” Commonwealth v. Mitchell, No. 617 CAP (Todd, J.,
The Disqualification Hearing Order
In view of the Pennsylvania Supreme Court’s remand instructions, the PCRA court,
on February 4, 2013, scheduled a hearing for March 1, 2013 “for the sole purpose of
addressing the Supreme Court’s mandate directing this Court ‘to determine whether to
formally appoint appropriate post-conviction counsel and to consider whether the FCDO
may or should lawfully represent appellant in this state capital PCRA proceeding.’” (Doc. 1,
The Notice of Removal
The FCDO, on February 21, 2013, removed the proceeding (the “Disqualification
Proceeding”) relating to the judicial determination of whether the FCDO may lawfully
represent Mr. Sepulveda in his PCRA action pursuant to 28 U.S.C. § 1442. (Doc. 1.) The
FCDO did not remove the underlying action in which Mr. Sepulveda is challenging his
conviction under the PCRA, and that action remains in state court. (Id. at ¶ 6.) The Notice
of Removal asserts that the Disqualification Proceeding is properly removed to this Court
because “it is directed against a person, i.e., the FCDO, acting under an officer or agency
of the United States, for or relating to the FCDO’s acts ‘under color of such office,’ 28
U.S.C. § 1442(a)(1), and is a proceeding that seeks a judicial order, 28 U.S.C. § 1442(c).”
(Id. at ¶ 19.)
The FCDO also argues that a number of colorable federal defenses will be raised in
opposition to the Disqualification Proceeding. These defenses include, among others: (1)
preemption; (2) primary jurisdiction; and (3) that the Disqualification Proceeding seeks to
deprive the FCDO and its lawyers of their First Amendment rights and their equal
protections rights under the Fourteenth Amendment. The FCDO further maintains that the
Commonwealth’s position is predicated on an incorrect interpretation of federal law. (Id. at
The FCDO’s Motion to Dismiss and the Commonwealth’s Motion to Remand
Following the removal of the proceeding concerning the FCDO’s representation of
Mr. Sepulveda, the FCDO filed a motion to dismiss the proceeding pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 8.) The FCDO asserts that the
Disqualification Proceeding fails to state a claim on which relief can be granted because
sole responsibility for the enforcement of the funding provisions on which the
Commonwealth relies, 18 U.S.C. § 3006A and 18 U.S.C. § 3599, lies with the Administrative
Office of the United States Courts (“AO”). Thus, the FCDO contends that the federal
statutes the Commonwealth seeks to enforce do not endow any non-federal entity with a
right of action.
However, to the extent that the Commonwealth is not barred from
proceeding under these statutes, the FCDO requests that the action be stayed and referred
to the AO under the doctrine of primary jurisdiction.
On March 25, 2013, the Commonwealth filed a motion to remand this proceeding to
the Court of Common Pleas of Monroe County. (Doc. 9.) The Commonwealth argues that
remand is necessitated in this case because the FCDO is unable to establish that it “act[s]
under” a federal officer or agency as required by 28 U.S.C. § 1442(a)(1) and that the
Disqualification Proceeding does not qualify as a “civil proceeding” as defined by §
1442(d)(1). Additionally, the Commonwealth asserts that Younger abstention prohibits
removal of the instant proceeding.
After the time to brief the motions expired, oral argument was held on both motions
on June 19, 2013. The motions are thus ripe for disposition.
II. Legal Standard
Under 28 U.S.C. § 1447(c), a party may bring a motion to remand an action removed
from state to federal court. The general removal statute, 28 U.S.C. § 1441, is to be strictly
construed in favor of state court adjudication. See Abels v. State Farm Fire & Cas. Co., 770
F.2d 26, 29 (3d Cir. 1985); see also In re Asbestos Prods. Liab. Litig. (No. IV), 770 F. Supp.
2d 736, 741 (E.D. Pa. 2011) (“the presumption under the general removal statute favors
remand [ ] due to the limited jurisdiction of federal courts”). Conversely, 28 U.S.C. § 1442,
the federal officer removal statute upon which removal was based in this proceeding, is to
be broadly construed in favor of a federal forum. See Sun Buick v. Saab Cars USA, Inc.,
26 F.3d 1259, 1262 (3d Cir. 1994); see also In re Asbestos, 770 F. Supp. 2d at 741 (“the
presumption under the federal officer removal statute favors removal [ ] for the benefit of
the federal officer involved the case”). This is so because “‘one of the primary purposes for
the federal officer removal statute- as its history clearly demonstrates- was to have federal
defenses litigated in the federal courts.’” Calhoun v. Murray, 507 F. App’x 251, 260 (3d Cir.
2012) (quoting Willingham v. Morgan, 395 U.S. 402, 407, 89 S. Ct. 1813, 23 L. Ed. 2d 396
(1969)). “As with removal petitions based on other statutes, the burden of establishing the
propriety of removal and the existence of federal jurisdiction under section 1442(a)(1) is
upon the removing party.” N.J. Dep’t of Envtl Prot. v. Dixo Co., No. 06-1041, 2006 WL
2716092, at *2 (D.N.J. Sept. 22, 2006); In re Asbestos Litig., 661 F. Supp. 2d 451, 453 (D.
Del. 2009) (same); see also Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.
1990) (“party who urges jurisdiction on a federal court bears the burden of proving that
jurisdiction exists”). But the Supreme Court has held that “the right of removal is absolute
for conduct performed under color of federal office, and has insisted that the policy favoring
removal ‘should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).’”
Arizona v. Manypenny, 451 U.S. 232, 242, 101 S. Ct. 1657, 68 L. Ed. 2d 58 (1981) (citation
As noted, before the Court are the FCDO’s motion to dismiss and the
Commonwealth’s motion to remand. Because the motion to remand raises an issue of
jurisdiction, the Commonwealth’s motion will be addressed first.
The federal officer removal statute, 28 U.S.C. § 1442, 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 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. . . .
28 U.S.C. § 1442(a)(1) (2013). A “civil action” is defined by the federal officer removal
statute to include:
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. If removal is sought for a proceeding
described in the previous sentence, and there is no other basis for removal,
only that proceeding may be removed to the district court.
Id. at § 1442(d)(1).3
According to the United States Court of Appeals for the Third Circuit, jurisdiction
under § 1442(a)(1) requires that:
a defendant . . . 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.
Feidt v. Owens Corning Fiberglass Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v.
California, 489 U.S. 121, 129, 109 S. Ct. 959, 965, 103 L. Ed. 2d 99 (1989); Willingham v.
Morgan, 395 U.S. 402, 409, 89 S. Ct. 1813, 1817, 23 L. Ed. 2d 396 (1969)).
“Person” Within the Meaning of Section 1442; Colorable Federal Defense; and
Section 1442 does not define the term “person.” See generally 28 U.S.C. § 1442.
Courts in the Third Circuit have routinely recognized that corporate entities qualify as
persons under the federal officer removal statute. See, e.g., Lewis v. Asbestos Corp., Ltd.,
No. 10-650, 2012 WL 3240941, at *4 (D.N.J. Aug. 7, 2012); Hagen v. Benjamin Foster Co.,
739 F. Supp. 2d 770, 776 (E.D. Pa. 2010); Reg’l Med. Transp., Inc. v. Highmark, Inc., No.
04-1969, 2008 WL 936925, at *5 (E.D. Pa. Apr. 2, 2008). The vast majority of other federal
courts have reached the same conclusion. See, e.g., Bennett v. MIS Corp., 607 F.3d 1076,
1085 (6th Cir. 2010); Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir. 2008) (section
1442's text covers “non-natural entities, such as the United States and its agencies, which
suggests that interpreting ‘person’ to include corporations is consistent with the statutory
scheme.”); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998)
(“corporate entities qualify as “persons” under § 1442(a)(1)”); Glein v. Boeing Co., No. 10-
Prior to the 2013 amendments to § 1442, the definition of a “civil action” in the
federal officer removal statute was set forth in subsection (c). See 28 U.S.C. §
1442 (2011), amended by 28 U.S.C. § 1442 (2013).
452, 2010 WL 2608284, at *2 (S.D.Ill. June 25, 2010); McGee v. Arkel Int’l, LLC, 716 F.
Supp. 2d 572, 575 (S.D. Tex. 2009). Applying this reasoning, the FCDO qualifies as a
“person” under the federal officer removal statute.
Feidt also requires the removing party to raise a colorable federal defense. “The
question before the court on this prong is ‘not whether [a] claimed defense is meritorious,
but only whether a colorable claim to such a defense has been made.’” N.J. Dep’t of Envtl.
Prot. v. Exxon Mobil Corp., 381 F. Supp. 2d 398, 403 (D.N. J. 2005) (quoting Fung v. Abex
Corp., 816 F. Supp. 569, 573 (N.D. Cal. 1992)).
The Supreme Court made clear in Mesa v. California, 489 U.S. 121, 109 S. Ct. 959,
103 L. Ed. 2d 99 (1989) that the assertion of a colorable federal defense is essential to
removal jurisdiction under § 1442(a)(1). See id. at 139, 109 S. Ct. 959 (“Federal officer
removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal
“But while Mesa affirmatively settled that Section 1442(a)(1) requires a
colorable federal defense to effect removal under the statute, it did not clarify what defenses
qualify as such.” Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 778 (E.D. Pa. 2010).
The Supreme Court has, however, explained:
The federal officer removal statute is not ‘narrow’ or ‘limited.’ At the very least,
it is broad enough to cover all cases where federal officers can raise a
colorable defense arising out of their duty to enforce federal law. One of the
primary purposes of the removal statute- as its history clearly demonstrateswas to have such defenses litigated in the federal courts.
Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969). As
a result, an “officer need not win his case before he can have it removed.” Id. at 407, 89
The Commonwealth has not addressed in detail the colorable federal defense
requirement in its submission. Thus, I will assume that the FCDO satisfies this requirement.
Feidt further requires a causal nexus between the claims and the conduct performed
under color of a federal office. “[A] defendant seeking removal must ‘by direct averment
exclude the possibility that [the defendant’s action] was based on acts or conduct of his not
justified by his federal duty.’” Hagen, 739 F. Supp. 2d at 785 (quoting Mesa, 489 U.S. at
132, 109 S. Ct. 959). This inquiry is distinct from the “acting under” requirement under the
federal officer removal statute. Parlin v. DynCorp Int’l, Inc., 579 F. Supp. 2d 629, 635 (D.
Del. 2008); see also Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (color of
federal authority requirement is distinct from the “acting under” requirement). However,
some courts have noted that
these considerations “‘tend to collapse into a single
requirement.’” Parlin, 579 F. Supp. 2d at 635 (quoting Reg'l Med. Transp., Inc. v. Highmark,
Inc., 541 F. Supp. 2d 718, 724 (E.D. Pa. 2008)).
As with the colorable federal defense consideration, the Commonwealth’s
submission provides little argument with respect to whether the FCDO satisfies the causal
nexus requirement. As such, I will assume this requirement is met. Nevertheless, although
these three Feidt requirements are met, the FCDO must also establish that is “act[s] under”
a federal officer in order to invoke removal jurisdiction under § 1442(a)(1).
“Acting Under” a Federal Officer
The focal point of the Commonwealth’s motion to remand is the second Feidt inquiry.
To remove the Disqualification Proceeding under the federal officer removal statute, the
FCDO must show that it was “acting under” a federal officer. See Isaacson v. Dow Chem.
Co., 517 F.3d 129, 136 (2d Cir. 2008). “The words ‘acting under’ are broad, and . . . the
statute must be ‘liberally construed.’” Watson v. Philip Morris Cos., 551 U.S. 142, 147, 127
S. Ct. 2301, 168 L. Ed. 2d 42 (2007) (citing Colorado v. Symes, 286 U.S. 510, 517, 52 S.
Ct. 635, 76 L. Ed. 2d 1253 (1932)). “There is no precise standard for the requisite control
to bring an entity within the ‘acting under’ clause, but the determination is dependent upon
the facts and conduct giving rise to the alleged cause of action.” Scrogin v. Rolls-Royce
Corp., No. 3:10cv442, 2010 WL 3547706, at *4 (D. Conn. Aug. 16, 2010) (citing In re Methyl
Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 125 (2d Cir. 2007)). But the Supreme
Court has stated to satisfy the “acting under” requirement of § 1442(a)(1), a private person's
actions “must involve an effort to assist, or to help carry out, the duties or tasks of the
federal superior.” Watson, 551 U.S. at 152, 127 S.Ct. 2301.
In the Notice of Removal, the FCDO asserts that is assists the Government in
“providing representation to indigent defendants, a service that the Government itself would
have to perform under the CJA.” (Doc. 1, ¶ 27.) Essentially, the FCDO argues that as a
federal grantee/contractor pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, it “act[s]
under” the AO.4
The Commonwealth, however, citing the Supreme Court’s decision in Watson,
argues that the FCDO is unable to satisfy the federal officer removal statute because “no
federal agency is obligated to appear in state court and the instant Motion to Appoint
Counsel concerns FCDO’s appearances in state court rather than its appearances in federal
court.” (Doc. 23, 19.) Thus, the Commonwealth insists that the FCDO is not helping the
Federal Government produce an item it needs when the FCDO represents indigent criminal
defendants in state court.
The FCDO’s contention that it “act[s] under” the AO for purposes of the federal officer
removal statute requires consideration of the Criminal Justice Act and an understanding of
the relationship between Community Defender Organizations and the AO. Moreover, as
the Commonwealth asserts that the resolution of the FCDO’s private contractor argument
is controlled by Watson v. Philip Morris Cos., 551 U.S. 142, 146, 127 S. Ct. 2301, 168 L.
Ed. 2d 42 (2007), a discussion of that decision follows as well.
The Criminal Justice Act and the Relationship Between Community
Defender Organizations and the Administrative Office of the United
The Criminal Justice Act authorizes the appointment of counsel for financially eligible
The FCDO does not allege that it is a federal agency under § 1442. (Doc. 29, 1113.)
individuals seeking habeas corpus relief under 18 U.S.C. §§ 2241, 2254, and 2255
whenever “the court determines that the interests of justice so require.” 18 U.S.C. §
3006A(a)(2)(B). In post conviction proceedings under § 2254 or § 2555 to vacate or set
aside a death sentence, “any defendant who is or becomes financially unable to obtain
adequate representation or investigative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more attorneys . . . .” 18 U.S.C. § 3599(a)(2).
Section 3599(e) provides:
Unless replaced by similarly qualified counsel upon the attorney's own motion
or upon motion of the defendant, each attorney so appointed shall represent
the defendant throughout every subsequent stage of available judicial
proceedings, including pretrial proceedings, trial, sentencing, motions for new
trial, appeals, applications for writ of certiorari to the Supreme Court of the
United States, and all available post-conviction process, together with
applications for stays of execution and other appropriate motions and
procedures, and shall also represent the defendant in such competency
proceedings and proceedings for executive or other clemency as may be
available to the defendant.
Id. at § 3599(e).5
In Harbison v. Bell, 556 U.S. 180, 182-83, 129 S. Ct. 1481, 173 L. Ed. 2d 347
(2009), the Court addressed “whether § 3599(e)’s reference to ‘proceedings for
executive or other clemency as may be available to the defendant’ encompasses
state clemency proceedings.” In finding that § 3599(e) authorizes federally
appointed counsel to represent clients in such proceedings, the Court considered
the text of § 3599(e) and noted that “[i]t is the sequential organization of the
statute and the term ‘subsequent’ that circumscribe counsel's representation, not a
strict division between federal and state proceedings.” Id. at 188, 129 S. Ct. 1481.
The Court also indicated that the Government’s concern that § 3599(e) as
interpreted by the Court that federally funded counsel would need to represent
petitioners in any state habeas proceeding occurring after appointment of counsel
to be unfounded because state habeas is not a stage “subsequent” to federal
habeas. See id. at 189, 129 S. Ct. 1481. Thus, even though “state postconviction
litigation sometimes follows the initiation of federal habeas because a petitioner
has failed to exhaust does not change the order of proceedings contemplated by
the statute.” Id. at 190, 129 S. Ct. 1481. Nevertheless, in light of § 3599(e)’s
provision that counsel may represent clients in “other appropriate motions and
procedures,” the Court noted that “a district court may determine on a
case-by-case basis that it is appropriate for federal counsel to exhaust a claim in
the course of her federal habeas representation.” Id. at 190 n.7, 129 S. Ct. 1481.
Under the Criminal Justice Act, federal district courts must place in operation a plan
for furnishing representation to indigent criminal defendants. See 18 U.S.C. § 3006A(a).
A district in which at least two hundred persons annually require the appointment of
counsel may establish a “Federal Public Defender Organization,” a “Community Defender
Organization,” or both. See id. at § 3006A(g)(1).
The Criminal Justice Act Plan for the United States District Court for the Middle
District of Pennsylvania provides that “the federal public defender organization of the Middle
District of Pennsylvania, previously established in this district pursuant to the provisions of
the CJA, is hereby recognized as the federal public defender organization for this district.”
In death penalty proceedings under § 2254 and § 2255, the Middle District Plan permits the
appointment of counsel from a number of sources, including the Defender Association of
Philadelphia’s Capital Habeas Unit, i.e., the FCDO.
The Plan of the United States District Court for the Eastern District of Pennsylvania
Pursuant to the Criminal Justice Act of 1964, as amended, designates the FCDO as the
Community Defender Organization to “facilitate the representation of persons entitled to
appointment of counsel under the Criminal Justice Act.”
A “Community Defender Organization” under the Criminal Justice Act is defined as
“a nonprofit defense counsel service established and administered by any group authorized
by the plan to provide representation.” 18 U.S.C. § 3006A(g)(2)(B).6 Community Defender
Organizations “shall submit to the Judicial Conference of the United States an annual report
setting forth its activities and financial position and the anticipated caseload and expenses
The FCDO, as explained above, is a division within the Defender Association of
Philadelphia, which is a non-profit organization that provides legal representation
to indigent criminal defendants in federal and state courts. (Doc. 17, 4.) The
FCDO’s activities are supported by a combination of federal funds received under
the Criminal Justice Act and private charitable contributions. (Id.)
for the next fiscal year.” Id. Community Defender Organizations may apply for approval
from the Judicial Conference to receive an initial grant to establish the organization and in
lieu of payments for representation and services under subsections (d) and (e) of § 3006A,
Community Defender Organizations may “receive periodic sustaining grants to provide
representation and other expenses pursuant to this section.” Id. The Judicial Conference
is also tasked with issuing rules and regulations for governance of plans established under
§ 3006A. See id. at § 3006A(h). Appropriations under the Criminal Justice Act “shall be
made under the supervision of the Director of the Administrative Office of the United States
Courts.” Id. at § 3006A(i).
The AO, acting under the supervision and direction of the Judicial Conference,
“administers the federal defender and attorney program on a national basis; is responsible
for training related to furnishing representation under the CJA; and provides legal, policy,
management, and fiscal advice to the Conference and its . . . defenders and their staffs.”
United States Courts, http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel.aspx
(last visited July 22, 2013).
Community Defender Organizations seeking grant funds must apply on a form
prepared by the AO. See 7 Guide to Judiciary Policy: Defender Services, pt. A, § 420,
available at http://www.uscourts.gov/uscourts/FederalCourts/AppointmentOfCounsel/vol7/Vol_07.pdf (last visited July 22, 2013). The receipt and use of funds is subject to
certain conditions, and Community Defender Organizations must agree to and accept these
conditions before grant payments are issued. See id. Among others, the terms and
conditions include that: “grant funds will be maintained separately and will not be
commingled with any non-grant funds maintained by grantee;” “the grantee must submit
reports each year setting forth its activities and financial position and the anticipated
caseload and expense for the next fiscal year;” and “the grantee must keep financial books
. . . unless a wavier is granted by the AO [and] such records must be maintained and
submitted in such manner and form as required by the AO.” Id. at Appx. 4A, available at
04-Appx4A.pdf (last visited July 22, 2013). If a grantee fails to comply with the terms and
conditions of its grant award, the Judicial Conference or its authorized representative “may
reduce, suspend, or terminate, or disallow payments under th[e] grant award as it deems
Based on these guidelines and regulations, the FCDO asserts that it operates under
congressional authorization and is subject to federal control. (Doc. 1, ¶ 26.) The FCDO thus
concludes that it “act[s] under” a federal officer and/or agency for purposes of the federal
officer removal statute. The Commonwealth, however, contends that this showing fails to
satisfy the “acting under” analysis set forth by the Supreme Court in Watson.
Watson v. Philip Morris Cos.
The Supreme Court addressed the “acting under” requirement in the context of the
federal officer removal statute in Watson v. Philip Morris Cos., 551 U.S. 142, 146, 127 S.
Ct. 2301, 168 L. Ed. 2d 42 (2007). The Commonwealth argues that the Supreme Court’s
decision in Watson provides the framework for the “acting under” inquiry for the federal
officer removal statute, and, pursuant to Watson, remand of the Disqualification Proceeding
is compelled in this action. For the reasons detailed below, I agree with the Commonwealth
in both respects.
In Watson, the petitioners filed a civil action in state court claiming that the
respondents, the Philip Morris Companies, violated state laws prohibiting unfair and
deceptive business practices by advertising certain cigarette brands as “light” when, in fact,
the respondents manipulated testing results by designing its cigarettes and employing
techniques that caused the cigarettes to register lower levels of tar and nicotine than would
actually be delivered to consumers. See Watson, 551 U.S. at 146, 127 S. Ct. 2301. Relying
on the federal officer removal statute, the respondents removed the action to federal court.
See id. The district court held that the statute authorized removal because the petitioner’s
complaint attacked the respondents’ use of the Government’s method of testing cigarettes
and thus the action involved conduct by the respondents that was taken under the Federal
Trade Commission (“FTC”). See id.
The district court certified the question for interlocutory review, and the United States
Court of Appeals for the Eighth Circuit affirmed. See id. at 147, 127 S. Ct. 2301. As with
the district court, the Eighth Circuit found significant the FTC’s detailed supervision of the
cigarette testing process. See id. The Supreme Court granted certiorari to address the
question “whether the fact that a federal regulatory agency directs, supervises, and monitors
a company's activities in considerable detail brings that company within the scope of the
italicized language (“acting under” an “officer” of the United States) and thereby permits
removal.” Id. at 145, 127 S. Ct. 2301 (emphasis in original).7
While recognizing the words “acting under” are broad, the Court emphasized that
“broad language is not limitless.” Id. at 148, 127 S. Ct. 2301. The Court thus considered
the statute’s language, context, history, and purpose to determine the scope and breadth
of § 1442(a)(1). See id. After considering the history of the statute, the Court noted that
early Supreme Court precedent “illustrate[s] that the removal statute’s basic purpose is to
protect the Federal Government from interference with its operations that would ensue were
a State able, for example, to arrest and bring to trial in a State court for an alleged offense
against the law of the State, officers and agents of the Federal Government acting within
Section 1442(a)(1) as construed by the Supreme Court in Watson has since
undergone minor amendments. See 28 U.S.C. § 1442(a)(1) (1996), amended by 28
U.S.C. § 1442(a)(1) (2011). Section 1442(a)(1) continues to require a private
person to be “acting under” a federal officer as set forth in Watson.
the scope of their authority.” Id. at 150, 127 S. Ct. 2301 (internal quotations, citations, and
Significantly, state courts may display “local prejudice” against
unpopular federal officials or federal laws, States may impede the enforcement of federal
law, or States may deprive federal officials of a federal forum in which to assert federal
immunity defenses. See id. These concerns can also arise when private persons act as
assistants to federal officers carrying out the performance of their official duties. See id.
Against that historical backdrop, the Watson Court analyzed the phrase “acting
under” as used in § 1442(a)(1), and found use of the word “under” “refer[red] to what has
been described as a relationship that involves ‘acting in a certain capacity, considered in
relation to one holding a superior position or office.’” Id. at 151, 127 S. Ct. 2301 (quoting 18
Oxford English Dictionary 948 (2d ed. 1989)). Such a relationship often involves subjection,
guidance, or control. See id. (citing Webster’s New International Dictionary 2765 (2d ed.
1953)). Moreover, the Supreme Court found that its precedent and the statute’s purpose
confirmed that a private person’s “acting under” “must involve an effort to assist, or to help
carry out, the duties or tasks of the federal superior.” Id. at 152, 127 S. Ct. 2301 (citing
Davis v. South Carolina, 107 U.S. 597, 600, 2 S. Ct. 636, 27 L. Ed. 574 (1883)). The Court
emphasized that mere compliance (or noncompliance) with federal laws, rules and
regulations does not bring a private actor within the scope of the federal officer removal
statute even if “the regulation is highly detailed and even if the private firm’s activities are
highly supervised and monitored.” Id. at 152-53, 127 S. Ct. 2301.
The Watson Court next considered the respondents’ argument that “lower courts
have held that Government contractors fall within the terms of the federal officer removal
statute, at least when the relationship between the contractor and the Government is an
unusually close one involving detailed regulation, monitoring, or supervision.” Id. The
respondents thus questioned why if a private contractor can act under a federal officer
based on close supervision, would the result not be the same when a private party is
subject to intense regulation. See id. The Supreme Court explained:
The answer to this question lies in the fact that the private contractor [in cases
where close supervision by a federal officer or agency is sufficient] is helping
the Government to produce an item that it needs. The assistance that private
contractors provide federal officers goes beyond simple compliance with the
law and helps officers fulfill other basic governmental tasks. In the context of
Winters, for example, Dow Chemical fulfilled the terms of a contractual
agreement by providing the Government with a product that it used to help
conduct a war. Moreover, at least arguably, Dow performed a job that, in the
absence of a contract with a private firm, the Government itself would have
had to perform.
Id. at 153-54, 127 S. Ct. 2301 (referring to Winters v. Diamond Shamrock Chem. Co., 149
F.3d 387 (5th Cir. 1998)). The Court found this examination sufficiently addressed the
respondent’s argument in light of the fact that private contracting was not at issue in the
Lastly, the respondents in Watson asserted that its activities exceeded the mere
compliance with regulations because the FTC, after initially testing cigarettes for tar and
nicotine, delegated that authority to an industry-financed testing laboratory. See id. at 154,
127 S. Ct. 2301. The Court rejected the respondents’ argument because it “found no
evidence of any delegation of legal authority from the FTC to the industry association to
undertake testing on the Government agency's behalf. Nor is there evidence of any
contract, any payment, any employer/employee relationship, or any principal/agent
arrangement.” Id. at 156, 127 S. Ct. 2301. And, without evidence of a special relationship,
the Court found the respondents’ analogy to Government contracting flawed because it was
left with only detailed rules, which sounded as regulation, and not delegation of authority.
See id. at 157, 127 S. Ct. 2301.
Analysis of the “Acting Under” Requirement
Citing § 3006A, § 3599, and Watson, the Commonwealth insists that the FCDO fails
to satisfy its burden as the removing party in establishing the existence of federal jurisdiction
under § 1442(a)(1). According to the Commonwealth, the FCDO’s private contractor
argument makes little sense because when the FCDO “appears in state court proceedings
before federal habeas review it is not assisting or helping carry out the duties of its federal
superior,” (Doc. 23, 9), since no federal agency has “a duty to appoint legal representation
to criminal defendants in state court.” (Id. at 19.) Without such an obligation to appoint
counsel or appear in state post-conviction proceedings, the Commonwealth concludes that
the FCDO cannot satisfy the federal officer removal statute because it is not helping the
Government produce something it needs.
The FCDO, however, asserts that it adequately alleges that it “act[s] under” the AO
as a federal grantee/contractor. In that regard, “[a]s a community defender organization,
the FCDO assists the Government to implement the aims and purposes of the CJA, by
representing indigent defendants.” (Doc. 28, 16.) The FCDO suggests that it satisfies the
federal officer removal statute because it “operates under congressional authorization and
is therefore subject to federal guidelines and regulations.” (Id at 17; see also Doc. 1, ¶ 27
(“The receipt and use of grant funds are subject to conditions set forth in Appx 4A of the
Guidelines . . . . [T]he FCDO is subject to federal control.”).) The FCDO also criticizes the
Commonwealth’s construction of the federal officer removal statute. It maintains that the
Commonwealth’s arguments in support of remand are hinged to the merits of the underlying
controversy, and, at this point in the proceeding, it would be improper to decide the merits
of the case. (Doc. 28,19-21.)
In view of the above cited authority and upon consideration of the arguments of the
parties, the FCDO fails to satisfy its burden and demonstrate the existence of federal
jurisdiction under § 1442(a)(1). In Watson, the Supreme Court explained that a “private
person’s ‘acting under’ must involve an effort to assist, or to help carry out, the duties or
tasks of the federal superior.” Watson, 55 U.S. at 152, 127 S. Ct. 2301. In essence, the
Court held that helping carry out or assisting with a governmental task or duty is a
necessary condition for a private entity to be considered “acting under” a federal officer or
agency for purposes of § 1442(a)(1). The FCDO asserts that it assists the Government by
representing indigent defendants, which it suggests is bolstered by the fact that the
Guidelines for Administering the Criminal Justice Act and Related Statutes require that a
Community Defender Organization’s “stated purposes must include implementation of the
aims and purposes of the CJA.” However, the FCDO has not identified any federal agency
or officer that is tasked with or has a duty to appoint, arrange, or provide legal
representation for indigent capital criminal defendants in state post-conviction proceedings
to preserve claims for federal habeas review. A necessary condition to invoke the federal
officer removal statute, the assistance or carrying out of duties of a federal superior, is
therefore absent in this case.8 As a result, even if the FCDO is “acting under” a federal
officer in the course of its representation of clients in federal court, it does not follow that it
also “act[s] under” a federal officer in its performance of tasks for which the Government
bears no responsibility, such as appearing in state post-conviction capital proceedings to
exhaust claims for federal habeas review. Indeed, “[c]ritical under the statute is to what
extent defendants acted under federal direction at the time they were engaged in the
conduct now being sued upon.” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488
For this reason, and in light of the fact that they pre-date Watson, the district court
cases relied on by the FCDO as supporting its claim that it “act[s] under” the AO
are not persuasive. See, e.g., Dixon v. Ga. Indigent Legal Servs., Inc., 388 F.
Supp. 1156 (S.D. Ga. 1974) (finding that “attorneys employed by organizations
conducting federally-funded legal assistance programs for the indigent act under
officers of the United States within the meaning of the removal statute[.]”); Gurda
Farms, Inc. v. Monroe Cnty. Legal Assistance Corp., 358 F. Supp. 841 (S.D.N.Y.
1973) (“In light of the foregoing description of the relationship between [the
Office of Economic Opportunity] and its legal service programs, I conclude that
the defendants in the instant actions are persons ‘acting under’ a federal officer
within the meaning of § 1442(a)(1).”).
F.3d 112, 125 (2d Cir. 2007) (emphasis added) (noting that the “acting under” and causal
connection considerations tend to collapse into a single requirement and stating that
“removal will not be proper where a private party establishes only that the acts complained
of were performed under the ‘general auspices’ of a federal officer.”); Parlin v. DynCorp Int’l,
Inc., 579 F. Supp. 2d 629, 635 (D. Del. 2008). As a corollary, if the FCDO’s status as a
federal grantee alone authorizes removal under § 1442(a)(1), numerous other entities and
organizations that receive federal grants would also fall within the purview of the federal
officer removal statute. Allowing these entities to remove proceedings to federal court
simply because they receive grant funds subject to federal conditions and regulations
without also finding that the entities are assisting or carrying out duties of the Federal
Government would be inconsistent with the Watson Court’s construction of § 1442(a)(1).
Moreover, the FCDO’s argument that it satisfies the “acting under” requirement of §
1442(a)(1) as a federal contractor/grantee because it operates “under congressional
authorization” and is “subject to federal guidelines and regulations,” (Doc. 28, 17), is similar
to the position advanced by the Philip Morris Companies and rejected by the Supreme
Court in Watson. As the Supreme Court noted, intense regulation alone is insufficient to
turn a private contractor into a private firm “acting under” a federal officer or agency. See
Watson, 551 U.S. at 153, 127 S. Ct. 2301 (“a highly regulated firm cannot find a statutory
basis for removal in the fact of federal regulation alone.”). The Watson Court noted a
crucial distinction between cases where a contractor and the Government are in an
unusually close relationship “involving detailed regulation, monitoring, and supervision,” and
those instances where a company is simply subject to “intense regulation.” Id. In the
former, the private contractor assists the Government by providing an “item that it needs,”
which, in the contractor’s absence, the Government itself would have to produce. Id.
The FCDO and the Government are not in such a relationship that render it “acting
under” a federal officer for purposes of the federal officer removal statute. Among other
things, the FCDO is required to segregate grant funds, submit reports detailing its financial
activities, and keep financial books under the terms of its funding grant. But, these
requirements sound in regulation. And being subject to intense regulation alone does not
entitle a private entity to remove an action under § 1442(a)(1). See Watson, 551 U.S. at
Furthermore, the FCDO’s submissions nor its arguments demonstrate that it is in
such an unusually close relationship with the AO or the Federal Government to make the
federal officer removal statute applicable to this proceeding. The FCDO, as discussed, is
subject to guidelines and regulations including the terms of its funding grant. But the FCDO
has not suggested that its representation of clients is performed at the direction of the AO,
that the AO dictates its litigation strategies or legal theories in individual cases, that the AO
reviews its work product, or that the AO otherwise takes an active role in monitoring and/or
participating in client representation. Of course, a third-party cannot dictate the FCDO’s
legal representation of its clients. See, e.g., Polk Cnty. v. Dodson, 454 U.S. 312, 318-22,
102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (“a defense lawyer is not, and by the nature of his
function cannot be, the servant of an administrative superior,” and a lawyer shall not permit
a person “who recommends, employs, or pays him to render legal services for another to
direct or regulate his professional judgment in rendering such legal services.”);9 see also
Ferri v. Ackerman, 444 U.S. 193, 204, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979)
(“indispensable element of the effective performance of [appointed counsel’s]
In Dodson, the issue before the Court was “whether a public defender acts ‘under
color of state law’ when representing an indigent defendant in a state criminal
proceeding.” Dodson, 454 U.S. at 314, 102 S. Ct. 445. Significantly, the Court
held that a public defender does not act under color of state law when performing
“a lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.” Id. at 325, 102 S. Ct. 445.
responsibilities is the ability to act independently of the Government and to oppose it in
adversary litigation.”). Nonetheless, it is this lack of monitoring or close supervision that
distinguishes the relationship between the FCDO and the AO from cases that have found
an unusually close relationship between a private contractor and a federal officer or agency
for purposes of § 1442(a)(1). For example, in Bennett v. MIS Corp., 607 F.3d 1076, 1088
(6th Cir. 2010) the United States Court of Appeals for the Sixth Circuit concluded that a
private mold remediation firm was “acting under” the Federal Aviation Administration
because it “helped FAA officers carry out their task of ridding a federal employee occupied
building of an allegedly hazardous contaminant, a job that in the absence of a contract with
MIS or another private mold remediation firm the FAA itself would have had to perform.” Id.
(citation, internal quotation, and alterations omitted). In finding the private contractor and
the FAA in an unusually close relationship, the Sixth Circuit emphasized that the FAA
contracts included precise specifications and required the contractor to follow explicit
parameters, the contractor’s work was closely monitored by federal officers, the FAA
contracting officers had authority to require that the contractor dismiss incompetent
employees, and the FAA controlled the working hours of the contractor’s employees. See
id. at 1087.
Here, in comparison, for the reasons detailed above, the FCDO is not providing a
service the Government “needs” when it represents criminal defendants in state postconviction proceedings prior to federal habeas review. Nor in the absence of the FCDO
would the Government be obligated to provide representation itself in such circumstances.
Accordingly, there is no unusually close relationship between the FCDO and the Federal
Government, and removal of the Disqualification Proceeding was improper.
Lastly, the FCDO suggests that conducting such an analysis at this stage of the
proceeding is premature. Specifically, it contends that finding that no federal officer or
agency is required to appoint counsel for indigent capital criminal defendants in their state
post-conviction proceedings on the Commonwealth’s motion to remand would
inappropriately result in an accelerated decision on the merits of whether the Criminal
Justice Act prohibits Community Defender Organizations from appearing in state court.
Concluding that there is no federal officer or agency obligated to represent or appoint
counsel to represent indigent capital state criminal defendants in their state post-conviction
proceedings is distinct from resolving the Disqualification Proceeding. That is, I am able to
determine that the FCDO fails to establish the “acting under” requirement of the federal
officer removal statute without determining that the FCDO should be removed as counsel
in the PCRA proceeding. Thus, while I hold that the FCDO has not met its burden to
establish federal jurisdiction under § 1442(a)(1), I make no finding that the Criminal Justice
Act bars the FCDO from appearing in state court. See supra note 5.
Since the FCDO fails to establish that it is “acting under” a federal officer for
purposes of § 1442(a)(1), the Commonwealth’s remaining arguments for remand, i.e., the
applicability of Younger abstention to this proceeding and whether the Disqualification
Proceeding is a “civil action” as defined by § 1442(d)(1), need not be addressed. And, as
the proceeding will be remanded, the FCDO’s motion to dismiss will be denied as moot.
An appropriate order follows.
August 16, 2013
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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