In Re: Commonwealth's Motion v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3853, No. 13-3854, No. 13-3855, No. 13-4070,

No. 13-4269, No. 13-4325

_____________

In Re: Commonwealth’s Motion to Appoint Counsel Against

or Directed to Defender Association of Philadelphia

The Defender Association of

Philadelphia,

Appellant in No. 13-3853

In Re: Proceedings Before the Court of Common Pleas of

Monroe County, Pa. to Determine Propriety of State

Court Representation by Defender Association of

Philadelphia

The Defender Association of

Philadelphia,

Appellant in No. 13-3854

In Re: Commonwealth’s Request for Relief Against or

Directed to Defender Association of Philadelphia

The Defender Association of

Philadelphia,

Appellant in No. 13-3855

In Re: Proceeding Before The Court of Common Pleas Of

Philadelphia To Determine The Propriety of The

Defender Association of Philadelphia's Representation of

William Johnson In Commonwealth of Pennsylvania

v. Johnson

Commonwealth of Pennsylvania,

Appellant in No. 13-4070

In Re: Commonwealth of Pennsylvania’s Rule to Show Cause

Filed in Commonwealth of Pennsylvania v. William

Housman

The Defender Association of

Philadelphia,

Appellant in 13-4269

In Re: Commonwealth’s Motion to Appoint New Counsel

Against or Directed to Defender Association of Philadelphia

Commonwealth of Pennsylvania,

Appellant in No. 13-4325

_____________

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

(Civil Action No. 2-13-mc-00062)

District Judge: Hon. Cynthia M. Rufe

(Civil Action No. 2-13-cv-02242)

District Judge: Hon. Berle M. Schiller

2

On Appeal from the United States District Court for the

Middle District of Pennsylvania

(Civil Action Nos. 1-13-cv-00510; 3-13-cv-00511; 1-13-cv-

00561; 1-13-cv-02103)

District Judge: Hon. A. Richard Caputo

_____________

Argued: June 25, 2014

Before: MCKEE, Chief Judge, FUENTES, GREENAWAY,

JR., Circuit Judges.

(Opinion Filed: June 12, 2015)

Hugh J. Burns, Jr., Esq. [ARGUED]

Thomas W. Dolgenos, Esq.

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Jaime M. Keating, Esq.

Cumberland County District Attorney’s Office

1 Courthouse Square

Carlisle, PA 17013

Christopher J. Schmidt

Pennsylvania Office of Attorney General

16th Floor, Strawberry Square

Harrisburg, PA 17120

Attorneys for Commonwealth of Pennsylvania

3

Patrick J. Carome, Esq.

Joshua M. Salzman, Esq.

Paul R.Q. Wolfson, Esq. [ARGUED]

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue, N.W.

Washington, DC 20006

David Richman, Esq.

Pepper Hamilton LLP

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

Attorney for Defender Association of Philadelphia

Lawrence S. Lustberg, Esq.

Benjamin Z. Yaster, Esq.

Gibbons P.C.

One Gateway Center

Newark, NJ 07102

Attorneys for Amici-Appellees National Asssociation of

Criminal Defense Lawyers, Pennsylvania Association of

Criminal Defense Lawyers

_____________

OPINION

_____________

FUENTES, Circuit Judge:

This case involves a concerted effort by the

4

Commonwealth of Pennsylvania and various Pennsylvania

counties to bar attorneys from the Capital Habeas Unit of the

Federal Community Defender Organization for the Eastern

District of Pennsylvania (“Federal Community Defender”)

from representing clients in state post-conviction proceedings.

In seven different Post-Conviction Review Act (“PCRA”)

cases in various Pennsylvania counties, hearings were

initiated to disqualify the Federal Community Defender as

counsel. In each case, the cited reason for disqualification was

based on the organization’s alleged misuse of federal grant

funds to appear in state proceedings.

The Federal Community Defender removed all of

these motions under the federal officer removal statute, 28

U.S.C. § 1442(a)(1), (d)(1). In response, the Commonwealth

filed motions under 28 U.S.C. § 1447(c) to return each case to

the state court, claiming that the federal officer removal

statute did not confer federal subject matter jurisdiction. The

Federal Community Defender then filed motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6), arguing that

the Commonwealth lacked a private right of action under

federal law, and alternatively that federal law preempted the

Commonwealth’s motions.

The District Courts split on the jurisdictional question.

In three cases, the Eastern District of Pennyslvania denied the

Commonwealth’s motions to remand and granted the Federal

Community Defender’s motions to dismiss. In four cases, the

Middle District of Pennsylvania granted the motions to

remand, and denied as moot the Federal Community

Defender’s motions to dismiss.

The threshold question before us is whether the

Federal Community Defender Organization’s invocations of

5

removal jurisdiction were proper. We conclude that they

were. On the merits of the Federal Community Defender’s

motions to dismiss, we conclude that the Commonwealth’s

attempts to disqualify it as counsel in PCRA proceedings are

preempted by federal law. Accordingly, we affirm the

judgments of the District Court for the Eastern District of

Pennsylvania, and we reverse the judgments of the Middle

District and remand with instructions to grant the Federal

Community Defender’s motions to dismiss.1

I. BACKGROUND

A. Statutory Framework

The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A,

requires each District Court to establish a plan to furnish

representation to indigent persons charged with federal

crimes. The CJA authorizes the Judicial Conference, the

congressionally created policy-making arm of the U.S.

Courts, to “issue rules and regulations governing the

operation of plans [of representation] formulated under [the

CJA].” § 3006A(h). The Judicial Conference has exercised

this authority by promulgating a comprehensive regulatory

framework for administering the CJA, which it sets out in its

Guide to Judiciary Policy (“Guide”), Vol. 7, Part A.2

1

Isaac Mitchell, the petitioner in the underlying post-

conviction proceeding that gave rise to Appeal No. 13-3817,

died while the appeal was pending. Accordingly, we have

dismissed that appeal as moot by separate order.

2

Available at http://www.uscourts.gov/rules-

policies/judiciary-policies/criminal-justice-act-cja-guidelines

(last visited May 27, 2015).

6

Under 18 U.S.C. § 3599(a)(2), the District Court must

appoint counsel to any indigent inmate, federal or state,

pursuing a federal habeas corpus challenge to a death

sentence. Further, habeas petitioners facing execution have

“enhanced rights of representation” under 18 U.S.C. § 3599,

as compared to non-capital defendants and other habeas

petitioners. Martel v. Clair, 132 S. Ct. 1276, 1284 (2012).

This enhanced right of representation includes more

experienced counsel, a higher pay rate, and more money for

investigative and expert services. Id. at 1285. These measures

“reflect a determination that quality legal representation is

necessary in all capital proceedings to foster fundamental

fairness in the imposition of the death penalty.” Id.

(alterations and quotation marks omitted). In some

circumstances, a federal court can appoint counsel to

represent a federal habeas corpus petitioner in state court for

the purpose of exhausting state remedies before pursuing

federal habeas relief. Harbison v. Bell, 556 U.S. 180, 190 n.7

(2009).

For districts where at least two-hundred people require

the appointment of counsel, the CJA allows for the creation of

two types of defender organizations. The first is a Federal

Public Defender, which is essentially a federal government

agency. The second is a Community Defender Organization.

See § 3006A(g)(2). A Community Defender Organization,

while not a federal agency, is defined as a “nonprofit defense

counsel service established and administered by any group

authorized by the plan to provide representation.”

§ 3006A(g)(2)(B). A Community Defender Organization’s

bylaws must appear in “the plan of the district or districts in

which it will serve,” and Congress requires it to “submit to

the Judicial Conference of the United States an annual report

setting forth its activities and financial position and the

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anticipated caseload and expenses for the next fiscal year.” Id.

B. The Federal Community Defender Organization

and the Administrative Office of the United States Courts

The Federal Community Defender is a Community

Defender Organization that represents indigent defendants

charged with federal crimes. Its Capital Habeas Unit specially

represents inmates sentenced to death in Pennsylvania in

federal habeas corpus proceedings.

The Federal Community Defender operates as a

distinct sub-unit of the Defender Assocation of Philadelphia.

It receives a periodic sustaining grant through

§ 3006A(g)(2)(B)(ii). This grant is paid “under the

supervision of the Director of the Administrative Office of the

United States Courts.” § 3006A(i). The Administrative Office

of the United States Courts (“AO”) is an agency within the

Judicial Conference. The Guide’s grant terms require the AO

to audit the Federal Community Defender every year. Unless

otherwise authorized by the AO, the Federal Community

Defender is prohibited from commingling grant funds with

non-grant funds and is required to use grant funds “solely for

the purpose of providing representation and appropriate other

services in accordance with the CJA.” J.A. 334; see also J.A.

338-39. If the Federal Community Defender fails to “comply

substantially” with the terms of the grant or is “unable to

deliver the representation and other services which are the

subject of th[e] agreement,” the Judicial Conference or the

AO “may reduce, suspend, or terminate, or disallow payments

under th[e] grant award as it deems appropriate.” J.A. at 341.

The U.S. District Court for the Eastern District of

Pennsylvania designates the Federal Community Defender to

facilitate CJA representation to eligible individuals. The

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Middle District of Pennsylvania includes the Federal

Community Defender as an organization that may be

appointed to represent indigent capital habeas petitioners.3

The Federal Community Defender acknowledges that

it sometimes appears in PCRA proceedings without a federal

court order directing it to do so. It alleges, however, that in

such cases it uses federal grant funds only for “preparatory

work that [will also be] relevant to a federal habeas corpus

petition” and only if it “has received a federal court order

appointing it as counsel for federal habeas proceedings or is

working to obtain such an appointment.” Second Step Br. 10.

Otherwise, it uses donated funds. See id. at 10-11.

C. The Genesis of the Disqualification Motions

These disqualification proceedings were spawned by a

concurrence written by then-Chief Justice Castille of the

Pennsylvania Supreme Court, in a decision denying PCRA

relief to a petitioner represented by the Federal Community

Defender. Chief Justice Castille criticized the organization’s

representation of capital inmates in state proceedings and

asked pointedly: “is it appropriate, given principles of

federalism, for the federal courts to finance abusive litigation

in state courts that places such a burden on this Court?”

Commonwealth v. Spotz, 18 A.3d 244, 334 (Pa. 2011)

(Castille, C.J., concurring). Chief Justice Castille answered in

the negative, commenting on the “obstructionist” tactics of

the Federal Community Defender attorneys and the

“perverse[ness]” of the commitment of federal resources to

3

Middle District Plan, § VII, available at

http://www.pamd.uscourts.gov/sites/default/files/cja_plan.pdf

(last visited May 27, 2015).

9

state post-conviction proceedings. Id. at 165.

D. Procedural History

Seizing on Chief Justice Castille’s comments, the

District Attorney of Philadelphia filed a “Petition for Exercise

of King’s Bench Jurisdiction Under 42 Pa. C.S. § 726”

directly with the Pennsylvania Supreme Court, requesting that

all Federal Community Defender counsel be disqualified from

continuing to represent clients in state PCRA proceedings

absent an authorization order from a federal court. In re:

Appearance of Federal FCDO in State Criminal Proceedings

(hereinafter King’s Bench Petition), No. 11-cv-7531, Doc. 1

at 11-42 (E.D. Pa. Dec. 8, 2011).

The Federal Community Defender removed the King’s

Bench Petition to federal court in the U.S. District Court for

the Eastern District of Pennyslvania. Its basis for removal was

the federal officer removal statute, 28 U.S.C. § 1442(a)(1),

(d)(1). Within six days, however, the Commonwealth

voluntarily dismissed the action.

The Commonwealth subsequently sought to disqualify

Federal Community Defender counsel in individual PCRA

proceedings. The Pennsylvania Supreme Court also initiated

inquiries into the Federal Community Defender’s continued

representation of PCRA petitioners. Before us now are seven

actions consolidated from the District Courts in the Eastern

10

and Middle Districts of Pennsylvania.4 In each case, a federal

4

The District Court judgments we review here are: In re

Commonwealth’s Motion to Appoint Counsel Against or

Directed to Defender Ass’n of Philadelphia, Respondent

(hereinafter Dowling), 1:13-CV-510, 2013 WL 4458848

(M.D. Pa. Aug. 16, 2013), reconsideration denied, 1:13-CV-

510, 2013 WL 5781732 (M.D. Pa. Oct. 25, 2013); In re

Proceedings Before the Court of Common Pleas of Monroe

Cnty., Pa. to Determine Propriety of State Court

Representation by Defender Ass’n of Philadelphia

(hereinafter Sepulveda), 3:13-CV-511, 2013 WL 4459005

(M.D. Pa. Aug. 16, 2013), reconsideration denied, 3:13-CV-

511, 2013 WL 5782383 (M.D. Pa. Oct. 25, 2013); In re

Commonwealth’s Request for Relief Against or Directed to

Defender Ass’n of Philadelphia, Respondent (hereinafter

Dick), 1:13-CV-561, 2013 WL 4458885 (M.D. Pa. Aug. 16,

2013), reconsideration denied, 1:13-CV-561, 2013 WL

5781760 (M.D. Pa. Oct. 25, 2013); In re: Commonwealth of

Pennsylvania’s Rule to Show Cause (hereinafter Housman),

No. 13-cv-2103, Doc. 14 (M.D. Pa. Oct. 25, 2013); In re

Proceeding Before Court of Common Pleas of Philadelphia

(hereinafter Johnson), CIV.A. 13-2242, 2013 WL 4774499

(E.D. Pa. Sept. 6, 2013); In re Commonwealth’s Motion to

Appoint New Counsel Against or Directed to Defender Ass’n

of Philadelphia (hereinafter Harris), MISC.A. 13-62, 2013

WL 4501056 (E.D. Pa. Aug. 22, 2013), reconsideration

denied, MISC.A. 13-62, 2013 WL 5498152 (E.D. Pa. Oct. 3,

2013). The action mooted by Isaac Mitchell’s death is In re:

Proceeding in Which the Commonwealth of Pennsylvania

Seeks to Compel the Defender Association of Philadelphia to

Produce Testimony and Documents and to Bar it from

Continuing to Represent Defendant Mitchell in State Court

(hereinafter Mitchell), 13-CV-1871, 2013 WL 4193960 (E.D.

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court assigned the Federal Community Defender to represent

these clients in federal habeas corpus proceedings, but not in

state PCRA proceedings. Like the King’s Bench Petition, the

main thrust of these motions, as well as the Pennsylvania

Supreme Court’s orders, is that Federal Community Defender

attorneys should be removed from the underlying PCRA

cases because they are misusing federal funds by representing

clients in state proceedings without an authorization order

from a federal court. A summary of the allegations in these

disqualification motions follows.

In Mitchell, the District Attorney of Philadelphia filed

a “Motion to Remov[e] Federal Counsel” in the Pennsylvania

Supreme Court. J.A. at 309-16. The DA alleged that (1) “the

presence of federally-funded [Federal Community Defender]

lawyers in this case [wa]s unlawful [under 18 U.S.C. § 3599],

as there has been no order from a federal court specifically

authorizing them to appear in state court,” J.A. at 310, and (2)

it was “a violation of the sovereignty of the Commonwealth

of Pennsylvania for lawyers funded by a federal government

agency for the purpose of appearing in federal courts to

instead appear in the state’s criminal courts,” J.A. at 312-13.

In a per curiam order, the Pennsylvania Supreme Court

found that the Commonwealth’s allegations were potentially

meritorious:

[T]he matter is REMANDED to the PCRA

court to determine whether current counsel, the

. . . [Federal Community Defender] . . . may

represent appellant [Mitchell] in this state

capital PCRA proceeding, or whether other

appropriate post-conviction counsel should be

Pa. Aug. 15, 2013).

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appointed. In this regard, the PCRA court must

first determine whether the [Federal

Community Defender] used any federal grant

monies to support its activities in state court in

this case. If the [Federal Community Defender]

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.

J.A. at 275 (emphasis added).5

The Supreme Court’s remand order in Mitchell was the

genesis of similar proceedings in the remaining PCRA cases

that are on review here. In Housman, the District Attorney of

Cumberland County filed an almost identical motion as the

DA in Mitchell. J.A. at 713-20. The DA in Housman

contended that, “[w]hen a PCRA court finds that [Federal

Community Defender] attorneys use federal funding in a state

proceeding, they must remove the [Federal Community

Defender] attorneys from the case.” J.A. at 718. The Attorney

General of Pennsylvania filed motions in three other cases,

Harris, Dowling, and Dick. J.A. at 456, 502; In re:

Commonwealth’s Request for Relief Against or Directed to

Defender Association of Philadelphia, No. 13-cv-561, Doc.

10-4 at 8 (M.D. Pa., March 28, 2013).

5

This order provoked a dissent from two of the justices, on

the basis that the legal issues “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.” J.A. at

278.

13

In Johnson and Sepulveda, the Pennsylvania Supreme

Court issued sua sponte orders to the PCRA trial courts. In

Johnson, the Supreme Court required that the Federal

Community Defender “produce a copy of any federal

appointment order it may have secured in this matter, within

ten (10) days of the issuance of this Order.” J.A. at 392. In

Sepulveda, the order was more detailed:

If federal funds were used to litigate the PCRA

below—and the number of [Federal Community

Defender] lawyers and witnesses involved, and the

extent of the pleadings, suggest the undertaking was

managed with federal funds—the participation of the

[Federal Community Defender] 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

[Federal Community Defender] may or should

lawfully represent appellant in this state capital PCRA

proceeding.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1151 (Pa. 2012)

(emphasis added).

The Federal Community Defender removed these

seven proceedings, producing seven separate federal civil

actions, four in the Middle District of Pennsylvania, and three

in the Eastern District of Pennsylvania.6 The Commonwealth

responded to each removal petition with a motion to remand,

6

Although the disqualification proceedings were removed to

federal court, the underlying PCRA actions remained in state

court.

14

claiming that federal jurisdiction was improper. The Federal

Community Defender simultaneously filed a motion to

dismiss on the merits under Federal Rule of Civil Procedure

12(b)(6). The District Courts split: judges in the Eastern

District found there was federal jurisdiction and granted the

Federal Community Defender’s motions to dismiss on the

merits. A judge deciding four of these actions in the Middle

District granted the Commonwealth’s motions to remand and

denied as moot the Federal Community Defender’s motions

to dismiss. Each party appeals the adverse rulings against it.

II. REMOVAL JURISDICTION

The first issue in this case is whether federal courts

have jurisdiction over the Commonwealth’s disqualification

motions. We have jurisdiction over these appeals under 28

U.S.C. § 1291; see also 28 U.S.C. § 1447(d). We review de

novo whether the District Court had subject matter

jurisdiction. Bryan v. Erie Cnty. Office of Children & Youth,

752 F.3d 316, 321 n.1 (3d Cir. 2014). A defendant seeking

removal must provide a “notice of removal . . . containing a

short and plain statement of the grounds for removal.” 28

U.S.C. § 1446. This notice “must allege the underlying facts

supporting each of the requirements for removal jurisdiction.”

Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014).

Because the Commonwealth facially attacks jurisidiction, we

construe the facts in the removal notice in the light most

favorable to the Federal Community Defender. See

Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d

Cir. 2014).

The Federal Community Defender proposes that

federal courts have mandatory jurisdiction under the federal

officer removal statute, 28 U.S.C. § 1442(a)(1), (d)(1). For

15

the following reasons, we agree.

A. Statutory Framework

The federal officer removal statute has existed in some

form since 1815. Willingham v. Morgan, 395 U.S. 402

(1969). The Statute’s “basic purpose” is:

[T]o protect the Federal Government from the

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

the scope of their authority.

Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 150 (2007)

(alterations and internal quotation marks omitted).

The federal officer removal statute’s current form, §

1442, is the result of many amendments that broadened a

1948 codification of the statute. Willingham, 395 U.S. at 406.

Following its most recent amendment in 2011, the statute

provides, in relevant 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

16

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.

...

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal

prosecution” 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.

28 U.S.C. § 1442(a)(1), (d)(1).

“Section 1442(a) is an exception to the well-pleaded

complaint rule, under which (absent diversity) a defendant

may not remove a case to federal court unless the plaintiff’s

complaint establishes that the case arises under federal law.”

Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12

(2006) (internal quotation marks omitted). Under this statute,

a colorable federal defense is sufficient to confer federal

jurisdiction. See id. Unlike the general removal statute, the

federal officer removal statute is to be “broadly construed” in

favor of a federal forum. See Sun Buick, Inc. v. Saab Cars

USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994).

17

The Removal Clarification Act of 2011, Pub. L. 112-

51, 125 Stat. 545 (2011), made two amendments to § 1442

that are relevant here. First, the Act clarified that the term

“civil action” includes ancillary proceedings, so long as a

“judicial order” is sought or issued. Id. at 545; see

§ 1442(d)(1). Second, it added the words “or relating to” after

“for” in § 1442(a). 125 Stat. 545. The House Committee on

the Judiciary wrote that the changes to the statute were meant

“to ensure that any individual drawn into a State legal

proceeding based on that individual’s status as a Federal

officer has the right to remove the proceeding to a U.S.

district court for adjudication.” H.R. Rep. No. 112-17, pt. 1

(2011), as reprinted in 2011 U.S.C.C.A.N. 420, 420.

Furthermore, adding the “or relating to” language is “intended

to broaden the universe of acts that enable Federal officers to

remove to Federal court.” Id. at 425.

B. Preliminary Considerations

As a preliminary matter, we must address a couple of

arguments raised by the Commonwealth. We note that the

proceedings are “civil actions” as defined by § 1442(a)(1),

(d)(1): they are ancillary proceedings in which a judicial order

was sought or, in the cases of Mitchell, Johnson, and

Sepulveda, issued. Contrary to the Commonwealth’s related

assertion, attorney disciplinary proceedings are not

categorically exempt from removal under § 1442. See

Kolibash v. Comm. on Legal Ethics of W. V. Bar, 872 F.2d

571, 576 (4th Cir. 1989) (allowing for attorney disciplinary

proceedings in front of the Committee on Legal Ethics of

West Virginia to be removed because the “state investigative

body operate[d] in an adjudicatory manner”). In any event,

the disqualification motions in this case are not attorney

18

disciplinary proceedings. See Commonwealth v. Spotz, No.

576 CAP, 2011 Pa. LEXIS 2368, at *6 (Pa. Oct. 3, 2011)

(Baer, J., dissenting) (contending that “unethical practices

engaged in by the [Federal Community Defender] attorneys

should be resolved by referral to the Disciplinary Board”).

C. Elements for Removal

In order for the Federal Community Defender to

properly remove under § 1442, it must meet four

requirements. The Federal Community Defender must show

that (1) it is a “person” within the meaning of the statute; (2)

the Commonwealth’s claims are based upon the Federal

Community Defender’s conduct “acting under” the United

States, its agencies, or its officers; (3) the Commonwealth’s

claims against it are “for, or relating to” an act under color of

federal office; and (4) it raises a colorable federal defense to

the Commonwealth’s claims. Ruppel v. CBS Corp., 701 F.3d

1176, 1180-81 (7th Cir. 2012); accord Feidt v. Owens

Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998).

D. Application of the Elements for Removal

We address each of the four elements in turn.

1. The Federal Community Defender is a “person”

The Federal Community Defender is a “person” within

the meaning of §1442(a)(1). Because the statute does not

define “person,” we look to 1 U.S.C. § 1, which defines the

term to “include corporations, companies, associations, firms,

partnerships, societies, and joint stock companies, as well as

individuals.” 1 U.S.C. § 1; see also Ruppel, 701 F.3d at 1181.

As a non-profit corporation, the Defender Association of

19

Phildelphia falls within this definition. Furthermore, as the

Second Circuit has recognized, “the legislative history is

devoid of evidence suggesting that Congress intended § 1442

not apply to corporate persons,” and “§ 1442 also lists other

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.”

Isaacson v. Dow Chem. Co., 517 F.3d 129, 135-36 (2d Cir.

2008). Consequently, we find that the Defender

Association—the umbrella organization and therefore the

named party in this case—satisfies the first requirement for

removal.

2. The Federal Community Defender was “acting

under” a federal officer or agency

The Federal Community Defender satisfies the next

element because the injuries the Commonwealth complains of

are based on the Federal Community Defender’s conduct

while it was “acting under” the AO. See Feidt, 153 F.3d at

127.

The words “acting under” describe “the triggering

relationship between a private entity and a federal officer.”

Watson, 551 U.S. at 149. The Supreme Court has stated that

“the word ‘under’ must refer 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 (quoting 18 Oxford English Dictionary

948 (2d ed. 1989)).

Furthermore, “precedent and statutory purpose make

clear that the private person’s ‘acting under’ must involve an

effort to assist, or to help carry out, the duties or tasks of the

20

federal superior.” Id. at 152. The Court has stressed that

“[t]he words ‘acting under’ are broad, and . . . that the statute

must be ‘liberally construed.’” Id. at 147 (quoting Colorado

v. Symes, 286 U.S. 510, 517 (1932)).

While the Court has not precisely determined “whether

and when particular circumstances may enable private

contractors to invoke the statute,” id. at 154, it has noted with

approval 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. at 153.

The Supreme Court cited by way of example Winters v.

Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th

Cir. 1998), in which the Fifth Circuit determined that Dow

Chemical was “acting under” color of federal office when it

manufactured Agent Orange for use in helping to conduct a

war pursuant to a contractual agreement with the United

States.

The Watson Court explained that in Winters and other

similar cases, the private contractor acted under a federal

officer or agency because the contractors “help[ed] the

Government to produce an item that it need[ed].” 551 U.S. at

153. This is because, the “assistance that private contractors

provide federal officers goes beyond simple compliance with

the law and helps officers fulfill other basic governmental

tasks.” Id. For example, in Winters, “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.

21

The Court contrasted government contractors with

other private parties lacking a contractual relationship with

the government. See id. It concluded that “compliance (or

noncompliance) with federal laws, rules, and regulations does

not by itself [bring a party] within the scope of the statutory

phrase ‘acting under’ a federal ‘official.’” Id. at 153. The

factual scenario in Watson itself is illustrative. In that case,

Phillip Morris could not remove a deceptive and unfair

business practices suit filed against it based merely on a

defense that it complied with Federal Trade Commission

regulations governing its advertising. Id. at 156. The Court

explained that Congress could not have meant for the statute

to sweep so broadly, for if mere compliance with federal law

were sufficient, then the meaning of “acting under” could

include taxpayers who complete federal tax forms; airline

passengers who obey prohibitions on smoking; or federal

prisoners who follow the rules and regulations governing

their conduct. Id. at 152. These types of relationships do not

warrant removal because state court prejudice would not be

expected. See id.

We adopt the principles outlined in Watson to guide

our understanding of whether the Federal Community

Defender was “acting under” a federal agency. Cf. Jacks v.

Meridian Res. Co., LLC, 701 F.3d 1224, 1231 (8th Cir. 2012)

(relying on same); Bennett v. MIS Corp., 607 F.3d 1076,

1086-87 (6th Cir. 2010) (same). The relationship between the

Federal Community Defender and the federal government is a

sufficiently close one to conclude that the Federal

Community Defender was “acting under” a federal agency—

the Judicial Conference and its subordinate, the AO—at the

time of the complained-of conduct.

22

The Federal Community Defender is a non-profit

entity created through the Criminal Justice Act that is

delegated the authority to provide representation under the

CJA and § 3599. Its “stated purposes must include

implementation of the aims and purposes of the CJA.” Guide,

Vol. 7A, Ch. 4, § 420.20(a). It also must adopt bylaws

consistent with representation under the CJA and a model

code of conduct similar to those governing Federal Public

Defender Organizations. See § 420.20(a) & (c). Through this

relationship, the Federal Community Defender “assists” and

helps the AO to “carry out[] the duties or tasks of a federal

superior,” which is to implement the CJA and § 3599 through

the provision of counsel to federal defendants and indigent

federal habeas corpus petitioners. See Watson, 551 U.S. at

152. Unlike the companies in Watson, the Federal

Community Defender provides a service the federal

government would itself otherwise have to provide. See id. at

154; Isaacson, 517 F.3d at 137 (“Unlike the tobacco

companies in Watson, Defendants received delegated

authority; they were not simply regulated by federal law.”).

Additionally, the nature of the Commonwealth’s

complaints pertains to the “triggering relationship” between

the Federal Community Defender and the AO, because the

Commonwealth targets the manner in which the Federal

Community Defender uses its federal money, not another

aspect of its representation of clients in state court. See

Watson, 551 U.S. at 149. As a condition of receiving federal

grant money, the Federal Community Defender must

maintain detailed financial records, submit an annual report of

activities and expected caseload, and return unexpended

balances to the AO. Additionally, the Federal Community

Defender is prohibited from commingling CJA funds with its

other funds. And “[u]nless otherwise authorized by the AO,

23

no employee of a grantee organization (including the federal

defender) may engage in the practice of law outside the scope

of his or her official duties with the grantee.” J.A. at 340. The

scope of when the Federal Community Defender acts under

the AO, whatever its limits, surely extends to whether it

sufficiently complies with its obligations under its grant,

specifically whether it is engaged in the unauthorized practice

of law, or is commingling funds in violation of the AO’s

directives.

The Commonwealth disagrees, contending that the

Federal Community Defender must show not only that it

“act[ed] under” color of federal office at the time of the

complained-of conduct, but also that the Federal Community

Defender acted pursuant to a federal duty in engaging in the

complained-of conduct. The Commonwealth argues that

because the Federal Community Defender cannot state a duty

to appear in PCRA proceedings on behalf of its clients, it

cannot be “acting under” a federal agency when it does so.

Framing the inquiry in this manner essentially collapses the

“acting under” inquiry into the requirement that the

complained-of conduct be “for, or relating to,” an act under

color of federal office. See In re Methyl Tertiary Butyl Ether

(“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 124-25 (2d Cir.

2007). Even if we were to address these requirements

simultaneously, whatever causation inquiry we import could

not be narrower than the one Congress has written into the

statute. As discussed below, we disagree that the Federal

Community Defender is required to allege that the

complained-of conduct itself was at the behest of a federal

agency. It is sufficient for the “acting under” inquiry that the

allegations are directed at the relationship between the

Federal Community Defender and the AO.

24

Given these considerations, we conclude that the

Federal Community Defender satisfies this requirement.

3. The Commonwealth’s claims concern acts “for

or relating to” an act under color of federal office

We conclude that the Federal Community Defender

satisfies the causation element because the Commonwealth’s

claims concern acts “for or relating to” the Federal

Community Defender’s federal office.

Prior to 2011, the proponent of jurisdiction was

required to show that it has been sued “for any act under color

of [federal] office.” 28 U.S.C. § 1442(a)(1) (2010) (emphasis

added).7 In other words, the proponent was required to “show

a nexus, a causal connection between the charged conduct

and asserted official authority.” Jefferson Cnty. v. Acker, 527

U.S. 423, 431 (1999) (quotation marks omitted).

For example, in Maryland v. Soper (No. 2), 270 U.S.

36 (1926), the Supreme Court decided that four prohibition

agents and their chauffeur could not take advantage of the

federal officer removal statute for their state prosecutions for

lying under oath to a coroner. According to the agents, what

required them to testify in front of the coroner was their

discovery of a man who was wounded, and who eventually

died, on their way back from investigating an illegal alcohol

still. Thus, they claimed that their federal duties were a cause

of their allegedly perjurous testimony. Id. at 41. The Court

7

Both before and after the 2011 amendments, however, the

statute also permitted the removal of actions brought “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).

25

determined that this connection was insufficient to justify

removal because testifying before the coroner was not part of

the agents’ official duties, and those were the acts that the

State relied on for prosecution. Id. at 42. The Court

acknowledged, however, that the acts need not be “expressly

authorized” by a federal statute, so long as the acts

complained of are “an inevitable outgrowth of” and “closely

interrelated” with the officer’s federal duty. Id.

By contrast, the Court found a sufficient causal

connection for removal jurisdiction in Acker, 527 U.S. 423.

There, two federal district court judges resisted payment of a

county’s occupational tax,8 claiming that it violated the

“intergovernmental tax immunity doctrine.” Id. at 429. After

the State brought a collection action against the judges in

state small claims court, the judges removed under § 1442

and asserted that the small claims suits were “for a[n] act

under color of office.” Id. at 432. The judges argued that there

was a sufficient causal relationship because the ordinance at

issue made it unlawful to engage in their federal occupation

without paying the tax. Id. For its part, the State argued that

the tax was levied against the judges personally, and not on

them as judges, so the collection suit was unrelated to their

federal office. Id. The Court decided that “[t]o choose

between those readings of the Ordinance is to decide the

merits of this case,” which it would not do at this stage. Id.;

see also id. at 431 (“We . . . do not require the officer

virtually to win his case before he can have it removed.”)

(quotation marks omitted). The Court concluded that the

8

Defined as “[a]n excise tax imposed for the privilege of

carrying on a business, trade, or profession.” TAX, Black’s

Law Dictionary (9th ed. 2009).

26

judges had made an adequate threshold showing at this stage

to grant federal courts jurisdiction under § 1442 because

“[t]he circumstances that gave rise to the tax liability, not just

the taxpayers’ refusal to pay, ‘constitute the basis’ for the tax

collection lawsuits at issue.” Id. at 433. The tax suits arose

out of the judges’ “holding court in the county and receiving

income for that activity” and therefore had a sufficient nexus

to the judges’ official duties. Id.

Thus, before 2011, proponents of removal jurisdiction

under § 1442 were required to “demonstrate that the acts for

which they [we]re being sued” occurred at least in part

“because of what they were asked to do by the Government.”

Isaacson, 517 F.3d at 137. In 2011, however, the statute was

amended to encompass suits “for or relating to any act under

color of [federal] office.” 28 U.S.C. § 1442(a)(1) (2011)

(emphasis added). Neither the Supreme Court nor any federal

appellate court has addressed the significance of the insertion

of the words “or relating to” in the statute. However, the

Supreme Court has defined the same words in the context of

another statute: “The ordinary meaning of the[] words

[‘relating to’] is a broad one—‘to stand in some relation; to

have bearing or concern; to pertain; refer; to bring into

association with or connection with.’” Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting

Black’s Law Dictionary 1158 (5th ed. 1979)); see also Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 & n.16 (1983)

(same). Thus, we find that it is sufficient for there to be a

“connection” or “association” between the act in question and

the federal office. Our understanding comports with the

legislative history of the amendment to § 1442(a)(1), which

shows that the addition of the words “or relating to” was

intended to “broaden the universe of acts that enable Federal

officers to remove to Federal court.” H.R. Rep. No. 112-17,

27

pt. 1 (2011), as reprinted in 2011 U.S.C.C.A.N. 420, 425.

In this case, the acts complained of undoubtedly

“relate to” acts taken under color of federal office. First, the

Federal Community Defender attorneys’ employment with

the Federal Community Defender is the very basis of the

Commonwealth’s decision to wage these disqualification

proceedings against them. The Commonwealth has filed these

motions to litigate whether the Federal Community Defender

is violating the federal authority granted to it. As the Supreme

Court has noted, whether a federal officer defendant has

completely stepped outside of the boundaries of its office is

for a federal court, not a state court, to answer. See Acker, 527

U.S. at 431-32; Willingham, 395 U.S. at 409 (“If the question

raised is whether they 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.”).

Moreover, the Federal Community Defender’s

representation of state prisoners in PCRA proceedings is

closely related to its duty to provide effective federal habeas

representation. As the Supreme Court has emphasized on

numerous occasions, the Antiterrorism and Effective Death

Penalty Act of 1996 significantly increased the extent to

which federal habeas relief is contingent on the preservation

and effective litigation of claims of error in state court,

including state post-conviction proceedings:

Under the exhaustion requirement, a habeas

petitioner challenging a state conviction must

first attempt to present his claim in state court.

28 U.S.C. § 2254(b). If the state court rejects

the claim on procedural grounds, the claim is

28

barred in federal court unless one of the

exceptions to the doctrine of Wainwright v.

Sykes, 433 U.S. 72, 82-84, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977), applies. And if the state

court denies the claim on the merits, the claim is

barred in federal court unless one of the

exceptions to § 2254(d) set out in §§ 2254(d)(1)

and (2) applies. Section 2254(d) thus

complements the exhaustion requirement and

the doctrine of procedural bar to ensure that

state proceedings are the central process, not

just a preliminary step for a later federal habeas

proceeding, see id., at 90, 97 S.Ct. 2497.

Harrington v. Richter, 562 U.S. 86, 103 (2011). As a result,

counsel in PCRA proceedings must be careful to comply with

state procedural rules, file within applicable limitations

periods, and fully exhaust their clients’ claims in order to

secure meaningful habeas review in federal court. The impact

PCRA litigation can have on a subsequent federal habeas

petition is, of course, one of the reasons the Federal

Community Defender represents prisoners in such litigation.

This impact is significant enough to convince us that the

Federal Community Defender’s actions in PCRA litigation

“relate to” its federal duties for purposes of removal

jurisdiction.

4. The Federal Community Defender raises

colorable defenses

The final element for removal requires the Federal

Community Defender to raise a “colorable federal defense” to

the Commonwealth’s claims. Acker, 527 U.S. at 431-32.

Since at least 1880, the Supreme Court has required that

29

federal officer removal be allowed if, and only if, “it appears

that a Federal question or a claim to a Federal right is raised

in the case, and must be decided therein.” Mesa v. California,

489 U.S. 121, 126-27 (1989) (quoting Tennessee v. Davis,

100 U.S. 257, 262 (1880)) (quotation marks and emphasis

omitted). This requirement assures that federal courts have

Article III jurisdiction over federal officer removal cases.

Mesa, 489 U.S. at 136.9

The Commonwealth contends that the federal defense

must coincide with an asserted federal duty. Not so. In Acker,

for example, the Supreme Court concluded that the

defendant-judges’ defense—that they enjoyed

“intergovernmental tax immunity”—brought them within the

removal statute, notwithstanding the fact that the judges’

duties did not require them to resist the tax. See 527 U.S. at

437. What matters is that a defense raises a federal question,

not that a federal duty forms the defense. True, many removal

cases involve defenses based on a federal duty to act, or the

lack of such a duty. See Mesa, 489 U.S. at 126-34. But the

fact that duty-based defenses are the most common defenses

does not make them the only permissible ones.

9

We note that, in this case, because the motions for

disqualification have as an element a nested federal question

that is both “disputed” and “substantial,” Article III “arising

under” jurisdiction likely exists even without the assertion of

a federal defense. Cf. Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005); Mesa, 489

U.S. at 129 (describing a federal officer removal case where

the plaintiff “could have brought suit in federal court based

on ‘arising under’ jurisdiction” because the plaintiff claimed

that a federal officer had failed to a comply with a federal

duty).

30

The Federal Community Defender raises three

colorable defenses. First, the Federal Community Defender

claims that it was not violating the terms of § 3599 when it

appeared in state court because it used non-federal funds

when necessary. Second, it argues that the Commonwealth’s

attempts to disqualify it on the alleged basis that it was

misusing federal grant money is preempted by federal law.

Third, it argues that the Commonwealth lacks a cause of

action to enforce the terms of the Federal Community

Defender’s grant with the AO under the CJA, § 3599, or

otherwise. Each of these three defenses is analogous to a

defense the Supreme Court has allowed to trigger

removability.

The Federal Community Defender’s first defense is a

“colorable federal defense” akin to the one raised in

Cleveland, C., C. & I.R. Co. v. McClung, 119 U.S. 454

(1886). In McClung, a railroad company sued a U.S. Customs

collector, McClung, in state court for recovery of a lien. The

company alleged that McClung had a duty under federal law

to notify the railroad company before delivering merchandise

to the consignees, even where the consignees had paid the

lien over to the collector. Id. at 454-56. McClung argued that

he had no duty to notify the railroad company under federal

law, which allowed him to remove. Id. at 462. In a later case

interpreting McClung, the Supreme Court explained that “[t]o

assert that a federal statute does not impose certain

obligations whose alleged existence forms the basis of a civil

suit is to rely on the statute in just the same way as asserting

that the statute does impose other obligations that may shield

the federal officer against civil suits.” Mesa, 489 U.S. at 130.

In both cases, the defenses “are equally defensive and equally

based in federal law.” Id.

31

The defense raised by the Federal Community

Defender is analogous to the defense raised in McClung. The

Commonwealth claims that the Federal Community Defender

has violated 18 U.S.C. § 3599 and the grant terms in its

contract with the AO, which implements the statute. The

Federal Community Defender responds that it has violated

neither set of requirements. Whether this is true is a

determination to be made by a federal court. We find this to

be a federal defense in that it requires interpretation of federal

statutes, the CJA and § 3599, as well as the Guide, which the

Judicial Conference promulgated to effectuate these statutes.

Contrary to the Commonwealth’s argument, this

defense is not foreclosed by the Supreme Court’s

interpretation of the boundaries of § 3599. See Harbison, 556

U.S. at 180. Harbison examined whether state clemency

proceedings were proceedings “subsequent” to federal habeas

for purposes of 18 U.S.C. § 3599(e). If they were, § 3599(e)

would require the district court to appoint an attorney, already

appointed for purposes of seeking federal habeas relief, to

represent the petitioner in those proceedings as well. The

Court determined that state clemency proceedings were

“subsequent” and that appointment of counsel was

authorized. Id. at 182-83. The Court contrasted state

clemency with state post-conviction relief, stating that “[s]tate

habeas is not a stage ‘subsequent’ to federal habeas. Just the

opposite: Petitioners must exhaust their claims in state court

before seeking federal habeas relief. See § 2254(b)(1).”

Harbison, 556 U.S. at 189. Thus, absent an authorization

order from a federal district court requiring exhaustion of

state remedies, federally funded counsel would not be

required in such situations. Id. at 190 n.7. The Court never

stated, however, that Federal Community Defender counsel

32

would be prohibited from representing clients in state habeas

proceedings in preparation for federal habeas corpus

representation. See id. Indeed, that is the question squarely

presented by the merits of this case. Because we must accept

the Federal Community Defender’s theory of the case at this

juncture, see Acker, 527 U.S. at 432, we find this defense to

be colorable.

Next, the Federal Community Defender claims that the

Commonwealth is impermissibly attempting to interfere in

the relationship between the Federal Community Defender

and the AO under the preemption principles laid out in

Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347-

48 (2001). This federal defense is similar to the one raised by

the judges in Acker, which was that Jefferson County’s tax

“risk[ed] interfering with the operation of the federal

judiciary in violation of the intergovernmental tax immunity

doctrine.” 527 U.S. at 431 (alterations in original and

quotation marks omitted). This, too, is a “colorable” defense

that the Federal Community Defender can raise in federal

court: it is plausible that the Congress intended for no one

other than the Judicial Conference and the AO to monitor and

enforce a Community Defender Organization’s compliance

with its grant terms.

Finally, the Federal Community Defender raises the

defense that the Commonwealth lacks a private right of action

to enforce § 3599 and the terms of the Federal Community

Defender’s grant with the AO. Similar to the preemption

defense, the lack of a right of action in the Commonwealth is

premised on the idea that Congress has delegated authority

only to the Judicial Conference and the AO to monitor and

enforce the CJA and § 3599. Thus, the Commonwealth’s

attempt to enforce these statutory provisions would interfere

33

with Congress’s intended mechanism for gaining compliance

with the CJA and § 3599.

The Federal Community Defender therefore satisfies

all of the requirements of § 1442(a)(1), and the

disqualification proceedings were properly removed.10

III. THE MERITS OF THE FEDERAL COMMUNITY

DEFENDER’S MOTIONS TO DISMISS

Satisfied that we have proper jurisdiction over these

consolidated appeals under the federal officer removal statute,

28 U.S.C. § 1442(a), we now turn to the merits of the Federal

Community Defender’s motions to dismiss under Rule

10

In its Third Step Brief, the Commonwealth argues for the

first time that, even if the federal courts have jurisdiction over

these proceedings, we should decline to exercise it under the

Younger abstention doctrine. Because the Commonwealth

failed to raise this issue in its First Step Brief, it has waived

the argument. Winston v. Children & Youth Servs., 948 F.2d

1380, 1384 (3d Cir. 1991). Furthermore, we decline to

exercise our discretion to look past the waiver because the

abstention argument lacks merit. The Commonwealth has

pointed us to no courts that have exercised Younger

abstention where the federal officer removal statute grants

jurisdiction. In fact, the courts we are aware of, that have

addressed the argument, have found such an exercise of

abstention to be inappropriate. See, e.g., Jamison v. Wiley, 14

F.3d 222, 239 (4th Cir. 1994) (“[T]he removal jurisdiction

granted by § 1442(a), which is designed to protect federal

employees against local prejudice, is mandatory, not

discretionary, and a district court has no authority to abstain

from the exercise of that jurisdiction on any ground other than

the two specified in 1447(c).”).

34

12(b)(6). To summarize, the Federal Community Defender’s

motions argue, in relevant part, that the Commonwealth lacks

a private right of action to enforce the CJA and § 3599, and,

alternatively, that the disqualification motions are preempted

by federal law.

As for the right of action argument, the

Commonwealth concedes that it lacks a right of action under

the CJA or § 3599. And without a private right of action, the

Commonwealth may not claim a direct violation of federal

law. See Wisniewski v. Rodale, Inc., 510 F.3d 294, 296-97 (3d

Cir. 2007); see also State of N.J., Dep’t of Envtl. Prot. &

Energy v. Long Island Power Auth., 30 F.3d 403, 421 n.34

(3d Cir. 1994) (noting that a State also needs a right of action

to enforce a federal law).

Rather, the Commonwealth argues that its

disqualification motions rest on state law. The named source

of state authority is Article V, § 10(c) of the Pennsylvania

constitution, which allows the Pennsylvania Supreme Court

to “prescribe general rules governing practice, procedure and

the conduct of all courts.” Accordingly, we look to the

Pennsylvania Supreme Court Orders issued for the substance

of the rule in this case. Those Orders provide that if the

Federal Community Defender fails to show that its actions

representing its clients are entirely “privately financed” with

non-federal funds, the state PCRA court is to disqualify the

Federal Community Defender as counsel. J.A. at 275

(Remand Order in Mitchell); see also Sepulveda, 55 A.3d at

1151 (sua sponte Order); J.A. at 392 (sua sponte Order in

Johnson).

It is unclear whether these Orders were in fact issued

pursuant to Article V, § 10(c) of the Pennsylvania

35

constitution. The Pennsylvania Supreme Court undoubtedly

has the power to enforce its rules of conduct. But the Orders

here are concerned with the unauthorized use of federal funds

and cite no generally applicable rule governing the practice of

law in Pennsylvania courts. Whether the Pennsylvania

Supreme Court relied on its § 10(c) authority is a question of

state law, and if that Court were to speak on the question, we

would be bound by its determination. We may sidestep this

issue, however, as the Federal Community Defender prevails

regardless of the answer. As explained above, the

disqualification proceedings may not enforce the federal

statutes at issue here. If, on the other hand, the

disqualification proceedings are based on state law, they

conflict with federal law and are therefore preempted.

The doctrine of conflict preemption “embraces two

distinct situations.” MD Mall Assocs., LLC v. CSX Transp.,

Inc., 715 F.3d 479, 495 (3d Cir. 2013), cert. denied, 134 S.

Ct. 905 (2014). The first is “where it is impossible for a

private party to comply with both state and federal law.”

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372

(2000). This type of conflict preemption is not present here,

because it would be possible for the Federal Community

Defender to comply with both federal law and the state rule

alleged by the Commonwealth by withdrawing as counsel in

these cases. The second type of conflict preemption arises

“where under the circumstances of a particular case, the

challenged state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Id. at 373 (alterations and internal

quotation marks omitted). This is the type of conflict

preemption that the Federal Community Defender presses.

The Supreme Court has instructed that, “particularly in

36

those [cases] in which Congress has legislated . . . in a field

which the States have traditionally occupied, . . . [courts] start

with the assumption that the historic police powers of the

States were not to be superseded by the Federal Act unless

that was the clear and manifest purpose of Congress.” Wyeth

v. Levine, 555 U.S. 555, 565 (2009) (citations and internal

quotation marks omitted); see also Fellner v. Tri-Union

Seafoods, L.L.C., 539 F.3d 237, 248 (3d Cir. 2008)

(explaining that, “because the States are independent

sovereigns . . . we have long presumed that Congress does not

cavalierly pre-empt state-law causes of action” (citation

omitted)). This presumption does not apply, however, when

Congress legislates in an area of uniquely federal concern.

See Buckman, 531 U.S. at 347.

The presumption against preemption does not apply

here. As a general matter, it is true that the States have a long

history of regulating the conduct of lawyers, who are officers

of the courts. See Bates v. State Bar of Ariz., 433 U.S. 350,

361-62 (1977). But the impetus for the proceedings here is

that the Federal Community Defender is allegedly applying

its federal grant funds to purposes not authorized by the

relevant federal statutes and grant terms. See, e.g., Sepulveda,

55 A.3d at 1151; J.A. at 275. As explained above, these

grants are paid under the supervision of the AO, a federal

agency within the Judicial Conference with regulatory control

over the Federal Community Defender. “[T]he relationship

between a federal agency and the entity it regulates is

inherently federal in character because the relationship

originates from, is governed by, and terminates according to

federal law.” Buckman, 531 U.S. at 347. Policing such

relationships “is hardly a field which the States have

traditionally occupied,” and thus there can be no presumption

against preemption here. Id. (citation and internal quotation

37

marks omitted).

In light of this determination, we find that the

disqualification proceedings are preempted. The overarching

purpose of the federal statutory provisions at issue here is to

provide “quality legal representation . . . in all capital

proceedings to foster fundamental fairness in the imposition

of the death penalty.” Martel, 132 S. Ct. at 1285 (internal

quotation marks omitted). To achieve this objective, Congress

has authorized grants to Community Defender Organizations

and tasked the AO with supervising grant payments. The

disqualification proceedings, however, seek to supplant the

AO by allowing the Commonwealth’s courts to determine

whether a Community Defender Organization has complied

with the terms of its federal grants and to attach consequences

to noncompliance.

Significantly, the disqualification proceedings are

preempted whether or not federal law authorizes the Federal

Community Defender to use grant funds for certain purposes

in PCRA cases. If the Federal Community Defender is

authorized to use grant funds, the Commonwealth plainly

cannot disqualify it for doing so without undermining

congressional objectives. But even if the Federal Community

Defender is not authorized to use grant funds, the

disqualification proceedings interfere with the regulatory

scheme that Congress has created.

As the Supreme Court has observed, “‘[c]onflict is

imminent whenever two separate remedies are brought to

bear on the same activity.’” Arizona v. United States, 132 S.

Ct. 2492, 2503 (2012) (quoting Wisconsin Dep’t of Indus.,

Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286

(1986)). “Sanctions are drawn not only to bar what they

38

prohibit but to allow what they permit, and the inconsistency

of sanctions [may] undermine[] the congressional calibration

of force.” Crosby, 530 U.S. at 380 (2000). This is especially

so when a federal agency is afforded the discretion to apply

those sanctions or stay its hand. See Buckman, 531 U.S. at

349-51; Farina v. Nokia Inc., 625 F.3d 97, 123 (3d Cir. 2010)

(noting that “regulatory situations in which an agency is

required to strike a balance between competing statutory

objectives lend themselves to a finding of conflict

preemption”).

Here, Congress has delegated supervisory authority

over CJA grants to the AO. The AO has the power to “reduce,

suspend, or terminate, or disallow payments . . . as it deems

appropriate” if the Federal Community Defender does not

comply with the terms of its grants. J.A. at 341. But if the

Commonwealth could sanction noncompliance, the AO could

be hindered in its ability to craft an appropriate response. For

example, the AO might be inhibited from exercising its

authority to reduce payments if it knew that the

Commonwealth might disqualify the Federal Community

Defender from representing indigent capital defendants as a

result. After all, as the District Court noted in Mitchell, “the

[AO’s] usual remedies, such as recoupment of distributed

funds, are more consistent with the CJA’s objectives because

they mitigate the disruption to the existing attorney-client

relationships.” 2013 WL 4193960, at *19. Allowing the

Commonwealth to attach consequences to the Federal

Community Defender’s relationship with the AO would

“exert an extraneous pull on the scheme established by

Congress” in a manner that conflicts with federal objectives.

Buckman, 531 U.S. at 353.

Consequently, we hold that the disqualification

39

proceedings brought against the Federal Community

Defender are preempted and must be dismissed.

IV. CONCLUSION

The federal officer removal statute provides removal

jurisdiction for federal courts to decide the motions to

disqualify filed in the Commonwealth’s PCRA proceedings.

Those disqualification proceedings are preempted by federal

law. We will therefore affirm the judgments of the Eastern

District of Pennsylvania and reverse the Middle District’s

judgments, remanding to the Middle District with instructions

that the Federal Community Defender’s motions to dismiss be

granted.11

11

We also wish to express our agreement with the sentiments

expressed in the concurrence, which further discusses the

context of this dispute.

40

McKEE, Chief Judge, concurring

I agree with the Majority’s conclusions that this action

was properly removed under the federal officer removal

statute, 28 U.S.C. §§1442(a)(1), (d)(1) (2012), and that any

state law cause of action is preempted. I therefore join the

Majority Opinion in its entirety. Nevertheless, I feel

compelled to write separately to amplify the context of this

dispute and to stress that the Commonwealth is not actually

proceeding on a state law theory at all, despite its claims to

the contrary.

I. Context

Although it does not alter our legal analysis of the

issues before us, it is difficult not to wonder why the

Commonwealth is attempting to bar concededly qualified

defense attorneys from representing condemned indigent

petitioners in state court. A victory by the Commonwealth in

this suit would not resolve the legal claims of these capital

habeas petitioners. Rather, it would merely mean that various

cash-strapped communities would have to shoulder the cost

of paying private defense counsel to represent these same

petitioners, or that local pro bono attorneys would have to

take on an additional burden. And it would surely further

delay the ultimate resolution of the petitioners’ underlying

claims.

Pennsylvania law instructs that, after the conclusion of

a death-sentenced prisoner’s direct appeal, “the trial judge

shall appoint new counsel for the purpose of post-conviction

collateral review, unless . . . [among other things] the

defendant has engaged counsel who has entered, or will

promptly enter, an appearance for the collateral review

proceedings.” Pa. R. Crim. P. 904(H)(1)(c). Death-sentenced

petitioners are thus entitled to counsel during PCRA

proceedings, and they may be represented by their counsel of

choice. Id. In the cases consolidated for this appeal, the

Federal Community Defender asserts that its attorneys,

members of the Pennsylvania bar, are functioning in that

capacity—counsel of choice for their condemned clients. The

Commonwealth does not challenge that representation.

1

As my colleagues in the Majority note, the genesis of

these disqualification motions was a concurring opinion by

then-Chief Justice Castille in Commonwealth v. Spotz, 18

A.3d 244 (Pa. 2011) (Castille, C.J., concurring).1 Maj. Op. 7-

8. The opinion severely criticized the tactics, motives,

integrity, and even the veracity of Federal Community

Defender attorneys who had intervened in state court PCRA

proceedings on behalf of a condemned prisoner. It is rife

with harsh critiques of the Federal Community Defender. See

Spotz, 18 A.3d at 334 (Castille, C.J., concurring) (“There is

no legitimate, ethical, good faith basis for [their] obstreperous

briefing.”).2 Chief Justice Castille lamented in his concurring

opinion in Spotz that the Federal Community Defender’s

“commitment of . . . manpower” in the PCRA proceedings

was “something one would expect in major litigation

involving large law firms.” Spotz, 18 A.3d at 332 (Castille,

C.J., concurring). However, I am not quite sure why the same

kind of meticulous devotion of resources should not be

available to someone who has been condemned to die by the

1

Then-Chief Justice Castille was joined by then-

Justice McAfferty and joined in part by then-Justice Melvin.

Although each of these jurists has since left the Pennsylvania

Supreme Court, I refer to them as “Chief Justice” or “Justice”

for the sake of simplicity.

2

The opinion further described the representation as

abusive and inappropriate. See Spotz, 165 A.3d at 330

(Castille, C.J., concurring) (“[I]it is time to take more

seriously requests by the Commonwealth to order removal of

the Defender in cases where, as is becoming distressingly

frequent, their lawyers act inappropriately.”); id. (“[I]t is not

clear that the courts of this Commonwealth are obliged to

suffer continued abuses by federal ‘volunteer’ counsel paid

by the federal courts.”); id. at 333 (“The Defender’s briefing

in this Court is similarly abusive.”); id. at 335 (noting that,

although the presence of the Federal Community Defender

“spares Pennsylvania taxpayers the direct expense of state-

appointed counsel[,] . . . that veneer ignores the reality of the

time lost and the expenses generated in the face of the

resources and litigation agenda of the Defender”); id. at 336

(referring to “the morass that is the Defender’s brief”).

2

state and who seeks to challenge the legality of that

punishment. State post-conviction proceedings are a critical

stage of litigation for those challenging their capital murder

convictions or death sentences. Surely, these cases are not

less important than the “high dollar” litigation to which large

law firms so often devote substantial resources.3

The ultimate fate of a habeas petitioner in federal court

depends to a very large extent on the performance of counsel

in state post-conviction proceedings. Indeed, as appreciated

by my colleagues, “state proceedings are the central process,

not just a preliminary step for a later federal habeas

proceeding.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

The state post-conviction stage is often a habeas petitioner’s

first opportunity to raise claims that certain constitutional

rights have been violated, and many such claims require

significant investigation. See Martinez v. Ryan, 132 S. Ct.

1309, 1317 (2012) (noting that, in that case, “the initial-

review collateral proceeding [was] the first designated

proceeding for a prisoner to raise a [Sixth Amendment] claim

of ineffective assistance at trial”); Commonwealth v. Grant,

813 A.2d 726, 735 (Pa. 2002) (noting that the practice of

most state and federal courts is to “only review those claims

on direct appeal that can be adequately reviewed on the

existing record[,]” and deciding that ineffective assistance of

counsel claims are properly presented in state collateral

proceedings). With very limited exceptions, a petitioner must

raise all claims during state post-conviction proceedings or

forfeit review of those claims in federal court. 28 U.S.C. §

2254(b)(1) (2012); see also Baldwin v. Reese, 541 U.S. 27, 29

(2004). Any federal review is almost always limited to the

results of the investigations that occurred during state post-

conviction proceedings.

Moreover, as any experienced practitioner appreciates,

it is exceedingly difficult to introduce additional evidence in

support of these claims in federal court. 28 U.S.C. §

3

In making this point, I do not mean to minimize the heinous

nature of the crimes which many of the Defender’s clients

were convicted of. However, that is simply not the point, nor

can it be relevant to the clients’ entitlement to counsel under

our system of justice.

3

2254(e)(2). Thus, after a state court has ruled on the merits of

a condemned petitioner’s post-conviction claim, “the die is

cast”—as that ruling will only be disturbed during federal

habeas corpus review if the state court’s judgment “was

contrary to, or involved an unreasonable application of,

clearly established Federal law.” Id. § 2254(d)(1). “[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.” Williams v. Taylor, 529

U.S. 362, 410 (2000). Thus, even if a federal court has a firm

belief that the state court’s ruling on a petitioner’s federal

claim was incorrect, the federal court usually must defer to

the state ruling. See Harrington, 562 U.S. at 101 (“A state

court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.”

(citation omitted)). It is readily apparent to the lawyers who

litigate and the judges who decide these cases that procedural

and substantive mistakes of state post-conviction counsel can

destroy the chances of vindicating even meritorious

constitutional claims in federal court.

Conversely, a thoroughly investigated and well-

presented petition for post-conviction relief in state PCRA

proceedings can ensure that petitioners’ claims are fully heard

and appropriately decided on the merits, rather than going

unresolved in federal court because of earlier procedural

defects. In addition to the important investigative and

substantive legal work that an attorney must undertake during

post-conviction proceedings in state court, attorneys must

fastidiously comply with state procedural rules and the one-

year statute of limitations contained in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA)—which can

be notoriously difficult to calculate—or risk being barred in

federal court on procedural grounds. See 28 U.S.C. § 2244(d);

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991) (“The

[independent and adequate state ground] doctrine applies to

bar federal habeas when a state court declined to address a

prisoner’s federal claims because the prisoner had failed to

meet a state procedural requirement.”); see also Pace v.

DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) (discussing

4

different means of calculating AEDPA’s one-year limitations

period).4

The labyrinthine complexity of federal habeas review

has caused one noted jurist to conclude that AEDPA’s

“thicket of procedural brambles” is one of the most difficult

legal schemes for an attorney to navigate. In re Davis, 565

F.3d 810, 827 (11th Cir. 2009) (Barkett, J., dissenting).

Indeed, AEDPA’s procedural obstacle course compares to the

notoriously vexing Rule Against Perpetuities insofar as both

enmesh the unwary (or unseasoned) lawyer in a procedural

minefield that can put him or her out of court.5 Even if a

petitioner’s claims are eventually heard in federal court,

initial missteps can increase the expense and time of the

litigation there. See, e.g., Maples, 132 S. Ct. at 916–17

(noting that the issue of whether a petitioner could excuse his

procedural default, caused by negligent attorneys’ missing a

state court filing deadline, had been litigated extensively

4

“In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claims is barred unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.” Coleman, 501 U.S. at 750. A procedural default

caused by state post-conviction counsel’s mistake may also

be excused if agency relationship between the lawyer and

client had been severed, see Maples v. Thomas, 132 S. Ct.

912 (2012), or (in more limited circumstances) if the state

post-conviction counsel was unconstitutionally inadequate,

see Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012).

However, relief on the basis of inadequate state post-

conviction counsel remains difficult to obtain. See Padilla v.

Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting

Strickland’s high bar is never an easy task.”).

5

See W. Barton Leach, Perpetuities: New Absurdity, Judicial

and Statutory Correctives, 73 HARV. L. REV. 1318, 1322

(1960) (“[T]he esoteric learning of the Rule Against

Perpetuities is, apart from dim memories from student days, a

monopoly of lawyers who deal in trusts and estates.”).

5

below). Deciding issues of life and death on such procedural

intricacies threatens to undermine trust and confidence in the

accuracy of the criminal justice system. See Brendan Lowe,

Will Georgia Kill an Innocent Man?, TIME, July 13, 2007,

http://content.time.com/time/nation/article/

0,8599,1643384,00.html (explaining that the requirements of

AEDPA made it difficult for petitioner Troy Davis to litigate

his claim of actual innocence).

Systematic attempts to disqualify competent Federal

Community Defender attorneys from representing clients in

state post-conviction proceedings are all the more perplexing

and regrettable when one considers the plethora of literature

discussing how inadequate representation at the state post-

conviction stage increases the cost of the criminal justice

system and creates a very real risk of miscarriages of justice.

See Ken Armstrong, Lethal Mix: Lawyers’ Mistakes,

Unforgiving Law, WASH. POST, Nov. 16, 2014, at A1. For

example, many petitioners have been barred from federal

court because their lawyer missed a deadline. See id. There

are numerous reasons why this should concern prosecutors as

much as defense counsel—not the least of which is that some

actually innocent petitioners only gain relief at the federal

habeas corpus stage of their post-conviction appeals process.

See id. (noting, by way of example, that “of the 12

condemned prisoners who have left death row in Texas after

being exonerated since 1987, five of them were spared in

federal habeas corpus proceedings”).6 There were at least

125 exonerations in 2014—the highest in recorded history.

See NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN

2014 at 1 (2015), available at https://www.law.

umich.edu/special/exoneration/Documents/Exonerations_in_2

014_report.pdf. Access to the Great Writ can be particularly

6

See also Berger v. United States, 295 U.S. 78, 88 (1935)

(“[W]hile [a prosecutor] may strike hard blows, he is not at

liberty to strike foul ones. It is as much his duty to refrain

from improper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to bring

about a just one.”).

6

critical to death-sentenced petitioners, some of whom may

have meritorious claims of actual innocence.7

Against this backdrop, the Federal Community

Defender has apparently concluded that representing these

petitioners at an earlier stage of their post-conviction appeals

process is consistent with its purpose, and the Administrative

Office of the United States Courts has neither voiced an

objection, nor chosen to interfere with this representation.

Rather, the Commonwealth (i.e., opposing counsel) is

attempting to disqualify highly qualified defense counsel

from representing these death-sentenced petitioners in state

court. The Commonwealth is obviously not objecting

because the Federal Community Defender is providing

inadequate representation and thereby denying the petitioners

the constitutional rights that all parties seek to respect.

Rather, the objection seems to be that the Federal Community

Defender is providing too much defense to the accused. To

again quote the criticism from the Spotz concurrence, they are

approaching the litigation the same way a large law firm

might approach representation of a client in “major litigation”

concerning large sums of money. See Spotz, 18 A.3d at 332

(Castille, C.J., concurring).

II. The Authority for the Disqualification Motions

The Majority Opinion notes that it is “unclear”

whether the Orders in this case were actually issued pursuant

to the “named source of state authority,” Article V, § 10(c) of

the Pennsylvania Constitution. Maj. Op. 31. It is not only

7

This is not to suggest that state courts are less capable of

ruling on constitutional claims, or that lawyers other than the

Federal Community Defender are less capable of litigating

them. However, it would be naïve to think that the

investigation, presentation, and preservation of these claims is

a simple task, or that the skill with which the claims are

presented to state and federal courts has no effect on how the

courts resolve those claims. The petitioners in these cases

understand the stakes of this litigation, and they have chosen

the Defender as their counsel of choice. Given that context

and the lack of sanctionable misbehavior by the Federal

Community Defender, I merely urge that we respect that

decision.

7

unclear, it is quite dubious. I separately address this issue to

highlight the absence of authority to support the

Commonwealth’s argument and to emphasize the extent to

which the legal underpinnings of the Commonwealth’s

argument have shifted during this litigation. The

Commonwealth’s current theory appears to be that state law

authorizes promulgation of new disqualification rules targeted

at specific Pennsylvania attorneys in specific cases. Although

both the weakness of that position as well as the extent to

which the Commonwealth has previously relied on a different

theory are worth emphasizing, I nevertheless agree with the

Majority’s conclusion that the Commonwealth’s claims are

preempted, even if they were properly based in state law.

A. The Commonwealth’s legal rationales

The Commonwealth did not initially rely on the

Pennsylvania Constitution in seeking disqualification of the

Federal Community Defender attorneys. Rather, the

Commonwealth claimed it was seeking to disqualify the

Federal Community Defender from appearing in state court

because of an alleged misuse of federal funds. The district

court in Mitchell, one of the cases that was consolidated for

this appeal, accurately described the Commonwealth’s

litigation theory as follows:

The Commonwealth’s seven-page motion

devoted almost two pages of citations to its

allegation that the presence of federally-funded

[Federal Community Defender] lawyers in

Mitchell’s state case was unlawful under federal

law. Mot. for Removal ¶ 6. It asserted no

corollary state law cause of action, and it made

no reference to an attorney disqualification

proceeding or to any violation of the rules of

professional conduct. The motion offered a

single state law citation: it pled jurisdictional

authority to pursue the matter under Section

10(c) of the state Constitution, the general

provision endowing the Pennsylvania Supreme

Court with the right to govern its courts. Id. ¶ 7.

Even this citation, however, was secondary to

its assertion, earlier in the paragraph, that it had

8

concurrent jurisdiction to enforce federal law.

Id.

In re Pennsylvania, No. 13-1871, 2013 WL 4193960,

at *15 (E.D. Pa. Aug. 15, 2013) (footnote omitted)

[hereinafter Mitchell]. As the Mitchell court noted, §

10 of the Pennsylvania Constitution was only used to

justify opposition to the Federal Community

Defender’s representation of capital defendants after

the Federal Community Defender removed this action

to federal court. However, even then, § 10 was more

of a passing reference than the foundation of the

Commonwealth’s arguments in the district courts.

Article V, § 10(c) of the Pennsylvania Constitution

allows the Pennsylvania Supreme Court to make “general

rules” to govern the state court system. PA. CONST., art. V §

10(c). However, §10(c) is not cited at all in the

Commonwealth’s briefs to this Court. Instead, the

Commonwealth stated generally that the disqualification

motions were rooted in the “sovereign authority of

Pennsylvania, including its power to supervise the practice of

law under Article V, § 10 of the State constitution.” Com.

First Step Br. 38. It later cited to Article V, § 10(a) of the

Pennsylvania Constitution as the basis for the state’s

sovereign power to “regulate[] the practice of law in

Pennsylvania State courts.” Com. Third Step Br. 37; see also

id. at 34.

By contrast, the basis for the Commonwealth’s

challenge to the Federal Community Defender at the

beginning of this litigation was federal law. The rules

articulated by the state Supreme Court in these consolidated

cases differed slightly in their wording, but the main thrust of

each was as follows:

If federal funds were used to litigate the PCRA

[proceeding] . . . the participation of the

[Federal Community Defender] 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

9

counsel and to consider whether the [Federal

Community Defender] may or should lawfully

represent appellant in this state capital PCRA

proceeding.

Maj. Op. 11 (quoting Commonwealth v. Sepulveda, 55 A.3d

1108, 1151 (Pa. 2012)). Not only was federal law the initial

basis for these Orders, it was the only justification given in

state court for disqualifying the Federal Community

Defender. Thus, far from proceeding on a state law theory,

the Commonwealth originally claimed that its opposition to

the Federal Community Defender’s representation was based

on the Commonwealth’s desire to enforce federal law.

The Commonwealth concedes that it lacks a right of

action under the Criminal Justice Act, 18 U.S.C. § 3006A et.

seq, and I agree with the Majority’s conclusion that the

Commonwealth may therefore not “claim a direct violation of

federal law.” Maj. Op. 31. Because the Commonwealth has

no right of action to enforce federal law directly, it also does

not have the authority to enforce compliance with federal law

indirectly through a new state rule targeted at specific

attorneys. See Astra USA, Inc. v. Santa Clara Cnty., Cal.,

131 S. Ct. 1342, 1345 (2011) (noting that direct and indirect

legal challenges are “one and the same” and must be treated

as such, “[n]o matter the clothing in which [litigants] dress

their claims” (quoting Tenet v. Doe, 544 U.S. 1, 8 (2005)

(internal quotation marks omitted)). The post hoc nature of

the Commonwealth’s assertion that the rules aimed at the

Federal Community Defender were actually made pursuant to

§ 10(c), and the absence of supporting authority for this

theory, seriously undermine the credibility of that assertion.

B. State law cause of action

As my colleagues appreciate, and as I explained at the

outset, the impetus for this litigation, and ultimately this new

“rule,” was the concurring opinion in Spotz that accused the

Federal Community Defender in the PCRA litigation of being

“abusive,” “obstructionist,” and “contemptuous.” 18 A.3d at

330–33 (Castille, C.J., concurring). It also referred to the

alleged use of federal funds for that purpose as “perverse.” Id.

10

at 331.8 The Pennsylvania Supreme Court then promulgated

what amounts to a new “rule” in cases where the Federal

Community Defender was representing a PCRA petitioner:

that the lower courts should consider disqualifying counsel if

they conclude that the Federal Community Defender is

misusing federal funds. See, e.g., Sepulveda, 55 A.3d at

1151. However, because this rule bears no resemblance to

the procedural rules that the state Supreme Court has

historically promulgated or enforced pursuant to § 10(c), the

proposition that § 10(c) actually provides authority for the

disqualification rule is tenuous at best.

8

The Commonwealth cites to the Spotz line of reasoning in

its brief to this Court, arguing that the Federal Community

Defender has “pursued a strategy to overwhelm the state

courts with volumes of claims and pleadings, many simply

frivolous, a strategy which burdens prosecutors and can shut

down a trial court for weeks.” Com. First Step Br. 48 (internal

quotation marks omitted). The criticism leveled at the Federal

Community Defender in Spotz, and repeated by the

Commonwealth in its briefing, goes beyond accusations of

zealousness or merely over-trying a case. The Chief Justice

and the concurring Justices accuse the Federal Community

Defender of engaging in tactics that are intended to obstruct

the state’s judicial process and thereby halt the state’s attempt

to enforce the death penalty. See Spotz, 18 A.3d at 331

(Castille, C.J., concurring). Later, in response to a motion

asking him to withdraw that concurring opinion, Chief Justice

Castille issued a Single Justice Opinion on Post-Decisional

Motions, which reaffirmed the importance of “principled

representation of indigent capital defendants” as being

“lawyering in the best tradition of the bar.” Commonwealth v

Spotz, 99 A.3d 866, 867 (2014) (Castille, C.J.). However, the

opinion again described representation of the Federal

Community Defender as advancing “an agenda beyond mere

zealous representation, one which routinely pushes, and in

frequent instances, as here, far exceeds ethical boundaries” in

pursuit of its “global agenda.” Id. at 867. The opinion then

sets forth examples to support its accusation that the Federal

Community Defenders “are at bottom gaming a system and

erecting roadblocks in aid of a singular goal—keeping

[their client] from being put to death.” Id. at 868 (emphasis

in original).

11

The Pennsylvania Constitution states, in relevant part,

that “[t]he Supreme Court shall have the power to prescribe

general rules governing practice, procedure and the conduct

of all courts . . . if such rules are consistent with this

Constitution and neither abridge, enlarge nor modify the

substantive rights of any litigant. . . .” PA. CONST., art. V §

10(c). Though § 10 gives the state Supreme Court authority

to “exercise general supervisory . . . authority” over the courts

and to prescribe “general rules” regulating the courts, nothing

about the rules announced in these cases is the least bit

“general.” PA. CONST., art. V § 10(a), (c). Instead, as my

colleagues note, the Pennsylvania Supreme Court decreed

that “if the Federal Community Defender fails to show that its

actions representing its clients are entirely ‘privately

financed’ with non-federal funds, the state PCRA court is to

disqualify the Federal Community Defender as counsel.”

Maj. Op. 31. Rather than being a general rule, the Order that

energizes this dispute is aimed squarely and solely at the

Federal Community Defender.

The Pennsylvania Supreme Court has exercised its §

10 power in a number of different ways, but it has not

previously promulgated a targeted rule like the one that is

purportedly present here. Moreover, its previous exercises of

§ 10 authority are so dissimilar from this case that they

provide little support for the Commonwealth’s current theory.

For example, the Court has promulgated and enforced general

rules of civil and appellate procedure.9 It has exercised its §

10(c) power to regulate judges, attorneys, and the practice of

law by creating and enforcing the Code of Judicial Conduct,

which regulates the activity of judges,10 and by defining and

9

See Commonwealth v. Rose, 82 A.3d 426 (Pa. 2013);

Laudenberger v. Port Auth. of Allegheny Cnty., 436 A.2d 147,

155 (Pa. 1981) (referring to the state Supreme Court’s

“constitutional rule-making authority”).

10

See Commonwealth v. Melvin, 103 A.3d 1, 14 (Pa. Super.

Ct. 2014).

12

regulating the practice of law in Pennsylvania.11 It has also

maintained its exclusive authority over the regulation of

attorneys in the state by invalidating legislation that attempted

to regulate this area.12 In a more unique use of this power, the

state court established procedures to implement a new

constitutional rule announced by the United States Supreme

Court.13 Taken together, these cases stand for the proposition

that the state court, ethics board, or other appropriate entity

can make and enforce clearly-established, generally

applicable rules of conduct to govern the conduct of judges

and lawyers in state courts.

In re Merlo, the main case cited by the

Commonwealth in support of its actions here, is an illustrative

example of the Pennsylvania Supreme Court’s § 10 power.

17 A.3d 869 (2011). Though the Commonwealth asserts that

Merlo supports its claim, the run-of-the-mill attorney

discipline case is so dissimilar from the instant case that it

actually undercuts the Commonwealth’s positon. In Merlo, a

local judge who had been suspended for absenteeism and for

being abusive towards parties petitioned to set aside her

suspension on the ground that the Supreme Court did not

have the power to suspend her. Id. at 871. The state Supreme

Court had suspended the judge after concluding that the

Judicial Conduct Board had probable cause to file a formal

charge against her. That charge asserted various violations of

the Rules Governing Standards of Conduct of Magisterial

District Judges. In its decision, Pennsylvania Supreme Court

explained that an earlier amendment to the state constitution

11

See Lenau v. Co-eXprise, Inc., 102 A.3d 423, 432–33 (Pa.

Super. Ct. 2014).

12

See Wajert v. State Ethics Comm’n, 420 A.2d 439, 442 (Pa.

1980).

13

See Commonwealth v. Hackett, 99 A.3d 11, 26 (Pa. 2014)

(interpreting Atkins v. Virginia, 536 U.S. 304 (2002), which

held that intellectually disabled people could not be executed,

but which initially gave states the ability to establish

procedures to assess whether capital defendants were

intellectual disabled).

13

had not stripped it of its general and broad power to supervise

attorneys and enforce the state ethics rules. Id.

Merlo thus demonstrates how the Pennsylvania

Supreme Court regulates attorney discipline: by applying

general rules of conduct equally to all lawyers. The

additional cases cited by the Commonwealth also generally

support the position that the Pennsylvania Supreme Court has

retained the power to regulate the conduct of lawyers through

enforcement of the state’s ethical and conduct rules. See

Office of Disciplinary Counsel v. Jepsen, 787 A.2d 420, 424–

25 (Pa. 2002) (holding that the Court of Judicial Discipline

does not have exclusive authority over regulating lawyers’

conduct).14 It is clear that Pennsylvania courts and the state

14

The cases relied on by the Commonwealth also explain that

courts themselves, not merely the state disciplinary board,

have the power to enforce the state ethical rules against

lawyers who appear before them. Slater v. Rimar, Inc., 338

A.2d 584, 587 (1975) (explaining that a judge may disqualify

an attorney appearing before him who is conflicted out of

representing his client); Am. Dredging Co. v. City of Phila.,

389 A.2d 568, 571–72 (1978) (noting that a trial court has the

power and duty to ensure that lawyers appearing before it

comply with the Code of Professional Responsibility, and

considering the merits of whether an attorney betrayed the

confidence of a client). Finally, the authority cited by the

Commonwealth makes clear that a state’s ability to regulate

lawyers is undoubtedly one of its important roles—though

that power is not without limits. See, e.g., Leis v. Flynt, 439

U.S. 438, 442–43 (1979) (holding that out-of-state attorneys

did not have a federal constitutional right to appear pro hac

vice in Ohio court); Bates v. State Bar of Ariz., 433 U.S. 350,

97 S. Ct. 2691, 2694 (1977) (holding that a state rule barring

lawyers from advertising their services was not challengeable

under the Sherman Act but also that the state rule, as applied,

violated the attorneys’ First Amendment free speech rights).

The Commonwealth also referred to Hoover v. Ronwin, 466

U.S. 558 (1984), and Goldfarb v. Va. State Bar, 421 U.S. 773

(1975), which involved challenges under the Sherman Act to

the grading of the Arizona bar exam and a fee schedule

published by a Virginia county bar, respectively. Neither

supports the Commonwealth’s argument that its state

14

disciplinary board have the authority to discipline any

attorney whose conduct so transcends the bounds of propriety

as to be sanctionable. However, none of the generally

applicable rules that regulate the conduct of Pennsylvania

lawyers were even cited in the disqualification orders before

us.15 To the extent that the Federal Community Defender’s

zealousness violates generally-applicable codes of conduct,

the appropriate remedy would appear to be enforcing those

codes of conduct in specific instances against specific

attorneys rather than systematically depriving condemned

prisoners of their counsel of choice as a matter of policy.

The issue here is not whether the Pennsylvania

Supreme Court can enforce Pennsylvania’s ethical rules; it

surely can, but the Disqualification Orders in these cases were

not issued pursuant to a charge that the Federal Community

Defender violated a specific rule of conduct. Rather, the

question here is what rule or law is actually being enforced.

The Federal Community Defender argues that the

Commonwealth is impermissibly trying to enforce federal

law. The Commonwealth now relies upon a state law cause

of action. However, the Commonwealth has not directed us

to a previous instance where § 10 has been used to support

what it attempts in this case: enforcement of a specific rule

that is aimed directly at a single legal office or attorney based

on conduct which has not been found to violate any of

constitution is a proper basis of authority for the

disqualification motions in to this case.

15

The Commonwealth argued at a hearing in the district court

in the Mitchell litigation that Pennsylvania Rule of

Professional Conduct 8.3(a) was the true basis of the

disqualification motion. That rule “instructs attorneys to

inform ‘the appropriate professional authority’ if he or she

‘knows that another lawyer has committed a violation of the

Rules of Professional Conduct that raises a substantial

question as to that lawyer's honesty, trustworthiness or fitness

as a lawyer.’” Mitchell, 2013 WL 4193960, at *14 (citing

204 Pa. Code § 8.3(a)). This is the only mention of an

existing Rule of Professional Conduct of which I am aware.

The Commonwealth appears to have abandoned this

argument on appeal.

15

Pennsylvania’s general rules governing the conduct of

lawyers. The absence of any such citation is understandable,

as I have not been able to find any such case. Therefore, even

if it were not preempted, the purported disqualification rule

here would not be authorized under state law.16

III. Conclusion

Though this dispute has been cloaked in claims of state

authority and appeals to principles of federalism, I am

unfortunately forced to conclude that this suit actually arises

out of simple animosity or a difference in opinion regarding

how capital cases should be litigated. Given the costs of

capital litigation and the very real stakes for the petitioners in

these cases, it is extremely regrettable that this debate has

now played out in our judicial forum.

16

Like my colleagues, I recognize that the Pennsylvania

Supreme Court is the ultimate arbiter of the meaning of the

state constitution. However, neither the Majority Opinion nor

this opinion relies on an interpretation of state law. Moreover,

as explained, federal law preempts any state law cause of

action.

16