Petition for Writ of Certiorari — Jason Edward Rheinstein, Petitioner v. Attorney Grievance Commission of Maryland

Supreme Court briefJul 25, 2019

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JASON EDWARD RHEINSTEIN,

Petitioner,

V. -

ATTORNEY GRIEVANCE

COMMISSION OF MARYLAND,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

JASON EDWARD RHEINSTEIN

PETITIONER PRO SE

P.O. Box 1369

SEVERNA PARK, MD 21146

(410) 340-8396

JASON@JER- CONSULTING. COM

JULY 25, 2019

SUPREME COURT PRESS

♦

(888) 958- 5705

♦

BOSTON, MASSACHUSETTS

QUESTION PRESENTED

Whether, once an appeal of a remand order has

been explicitly authorized by 28 U.S.C. § 1447(d), the

appellate court has jurisdiction to review the entire

order and all of the legal issues entailed in the decision to remand, as the majority of circuits to consider

the issue had previously held, or whether the appellate court's jurisdiction to review a remand order is

limited to the portion of the remand order addressing

particular issues as the Fourth Circuit held in this case.

PARTIES INVOLVED

The style of the case identifies the parties involved.

Petitioner Jason Edward Rheinstein is an individual

Maryland resident who is an attorney licensed to

practice law in Maryland and several other jurisdictions. Respondent Attorney Grievance Commission of

Maryland is an administrative agency in the judicial

branch of Maryland State Government, which regulates

Maryland attorneys.1

1 This case involves the removal of a state court proceeding to

federal court. In the state court proceedings, the Attorney Grievance

Commission of Maryland is the "Petitioner" and Jason Edward

Rheinstein is the "Respondent." There are documents in the Appendix from the state court proceedings. As they appear in the

Appendix documents, the term "Petitioner" refers to the Attorney

Grievance Commission of Maryland, and the term "Respondent"

refers to Jason Edward Rheinstein.

111

LIST OF PROCEEDINGS

Attorney Grievance Commission of Maryland v.

Jason Edward Rheinstein

United States District Court, Maryland

Civil Action No. 17-cv-2550

Decision Dates: September 20, 2017,

September 22, 2017

Attorney Grievance Commission of Maryland v.

Jason Edward Rheinstein

United States Court of Appeals, Fourth Circuit

Case No. 17-2127

Decision Date: February 5, 2019

Date of Order Denying Petition for Rehearing and

Rehearing en bane: March 11, 2019

TABLE OF CONTENTS

Page

QUESTION PRESENTED

PARTIES INVOLVED

LIST OF PROCEEDINGS

iii

TABLE OF AUTHORITIES

vii

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISION INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

A. Overview of Case and the Discovery

Responses Leading to Petitioner's Removal

of the Case

B. Removal to the District Court

Asserted Basis for Removal Under

§ 1442(a)(1) (Federal Officer Jurisdiction)

Asserted Basis for Removal Under § 1441

and § 1331 (Federal Question Jurisdiction)

C. The Motion for Remand, the District Court's

Orders and the Fourth Circuit Appeal

REASONS FOR GRANTING THE WRIT

I. THERE IS A CLEAR SPLIT, AMONG THE

CIRCUITS TO HAVE CONSIDERED THE ISSUE,

AS TO WHETHER AN APPELLATE COURT MAY

TABLE OF CONTENTS — Continued

Page

REVIEW THE ENTIRE REMAND ORDER (AND

ALL THE LEGAL ISSUES ENTAILED THEREIN)

IN CASES WHERE REVIEW IS EXPLICITLY

AUTHORIZED BY 28 U.S.C. § 1447(d)

FOR THE REASONS STATED BY THE SEVENTH

CIRCUIT IN Lu JUNHONG, THAT DECISION

AND THE DECISIONS OF THE SIXTH AND

FIFTH CIRCUITS IN MAYS AND DECATUR

HOSPITAL, RESPECTIVELY, WERE CORRECT

WHEREAS THE DECISIONS OF THE EIGHTH

CIRCUIT IN JACKS AND THE FOURTH CIRCUIT

IN THIS CASE WERE ERRONEOUS

THIS CASE PRESENTS AN IDEAL VEHICLE FOR

RESOLVING A QUESTION OF EXCEPTIONAL

IMPORTANCE THAT WILL RECUR IN THE

FUTURE; A UNIFORM INTERPRETATION OF

§ 1447(d) Is NECESSARY TO ENSURE THAT

PARTIES ARE NOT TREATED DIFFERENTLY

DEPENDING UPON WHERE THE CASE IS

LITIGATED

CONCLUSION

APPENDIX TABLE OF CONTENTS

Opinion of the Fourth Circuit

(February 5, 2019)

Memorandum and Order Denying Emergency

Motion (September 22, 2017)

TABLE OF CONTENTS — Continued

Page

Memorandum and Order Re: Remand

of the District Court of Maryland

(September 20, 2017)

Order Remanding Case of the District Court of

21a

Maryland (September 20, 2017)

Memorandum and Order Re: Remand

of the District Court of Maryland

(March 17, 2017)

23a

Order of the Fourth Circuit Denying Petition for

Rehearing En banc (March 11, 2019)

31a

Notice of Appeal

(September 25, 2017)

32a

Petition for Disciplinary or Remedial Action

[AGC Complaint] (February 17, 2016)

35a

AGC Answers to Rheinstein's Corrected First Set

of Interrogatories—Relevant Excerpts

(August 30, 2017)

62a

AGC Schedule A: Answers to Interrogatories and

Responses to Request for Production of

Documents—Relevant Excerpts

(August 21, 2017)

65a

Deposition of AGC Designee Marianne J. Lee

Transcript—Relevant Excerpt

(August 7, 2017)

70a

vii

TABLE OF AUTHORITIES

Page

CASES

Atty. Griev. Comm'n. v. Donnelly,

458 Md. 237 (2018)

Brill v. Countrywide Home Loans, Inc,

427 F.3d 446 (7th Cir. 2005)

17, 18, 23

Brockovich v. Cmty. Med. Ctrs.,

2007 U.S. Dist. LEXIS 21355

(E.D. Ca. 2007)

Cord v. Smith,

338 F.2d 516 (9th Cir. 1964)

Decatur Hosp. Auth. v. Aetna Health, Inc.,

854 F.3d 292 (5th Cir. 2017)

15, 20, 21, 23

Grable & Sons Metal Products v. Darue Eng'g.

& Mfg., 545 U.S. 308 (2005)

10, 11

In re Snyder,

472 U.S. 634 (1985)

Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224 (8th Cir. 2012)

passim

Kakarala v. Wells Fargo Bank, NA.,

136 S.Ct. 1153 (2016) (Thomas, J.,

dissenting from the denial of certiorari)

Kircher v. Putnam Funds Trust,

547 U.S. 633 (2006)

passim

Kolibash v. Committee on Legal Ethics of West

Virginia Bar, 872 F.2d 571 (4th Cir. 1989)

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015)

passim

viii

TABLE OF AUTHORITIES—Continued

Page

Mays v. City of Flint,

871 F.3d 437 (6th Cir. 2017)

19, 21, 23

McCallum v. CSX Transp., Inc.,

149 F.R.D. 104 (M.D. N.C. 1993)

Riley v. St. Luke's Episcopal Hosp.,

252 F.3d 749 (5th Cir. 2001)

Sawyer v. Foster Wheeler, LLC,

860 F.3d 249 (4th Cir. 2017)

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976)

14, 25

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995)

United States ex rel. Kelly v. Boeing Co.,

9 F.3d 743 (9th Cir. 1993)

United States ex rel. Mergent Servs. v.

Flaherty, 540 F.3d 89 (2d Cir. 2008)

United States ex rel. Stillwell v. Hughes

Helicopters, Inc.,

714 F.Supp. 1084 (C.D. Cal. 1989)

Vt. Agency of Natural Res. v. United States ex

rel. Stevens, 529 U.S. 765 (2000)

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996)

Zeringue v. Crane Co.,

846 F.3d 785 (5th Cir. 2017)

passim

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. III

8, 12

STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. § 1292(b)

17, 21, 22, 25

28 U.S.C. § 1331

passim

28 U.S.C. § 1332(d)

28 U.S.C. § 1333

16, 17

28 U.S.C. § 1367

28 U.S.C. § 1441

passim

28 U.S.C. § 1442

passim

28 U.S.C. § 1442(a)(1)

7, 8, 13

28 U.S.C. § 1443

2, 21, 22

28 U.S.C. § 1446(b)(3)

28 U.S.C. § 1447(c)

28 U.S.C. § 1447(d)

passim

31 U.S.C. § 3729 et seq.

8, 9, 10

TABLE OF AUTHORITIES—Continued

Page

JUDICIAL RULES

Fed. R. App. P 35

Md. Dist. Ct. Rule 704

Middle Dist. Ct. of NC Rule 505

MLRPC 3.1

5, 6, 10, 11

OTHER AUTHORITIES

Edward H. Cooper,

15A Wright & Miller Federal Practice &

Procedure § 3914.11 (2014 rev.)

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jason Edward Rheinstein, respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fourth

Circuit (the "Fourth Circuit") in this case.2

OPINIONS BELOW

The opinion of the Fourth Circuit (App. la-3a) is

unreported. Atty. Griev. Comm'n. of Md. v. Rheinstein,

750 Fed. Appx. 225 (4th Cir. 2019). The Fourth Circuit's

order denying Petitioner's Petition for Rehearing or

Rehearing En Banc (App.31a) is also unreported. The

appeal was taken from unreported opinions of the

United States District Court for the District of Maryland (the "District Court") entered on September 20,

2017 (App.9a-21a) and September 22, 2017 (App.4a8a).3

JURISDICTION

The Fourth Circuit issued its panel decision on

February 5, 2019. Petitioner timely filed a petition

2 In the Fourth Circuit, this case was styled as Atty. Griev.

Comm'n. of Md. v. Jason Edward Rheinstein, No. 17-2127.

3 An earlier unreported opinion of the District Court, which is referenced in the September 20, 2017 opinion, appears at App.23a-30a.

for panel rehearing or rehearing en banc, and the

Fourth Circuit denied that petition on March 11, 2019.

The Chief Justice extended the time for filing this

petition to July 25, 2019. See No. 18A1285. This Court

has jurisdiction to review the decision of the Fourth

Circuit pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. § 1447(d)

An order remanding a case to the State court from

which it was removed is not reviewable on appeal

or otherwise, except that an order remanding a

case to the State court from which it was removed

pursuant to section 1442 or 1443 of this title shall

be reviewable by appeal or otherwise.

INTRODUCTION

This petition raises an exceptionally important and

recurring question inuring to the jurisdiction of the

courts of appeal to review remand orders that Congress

has explicitly exempted from the general bar of 28

U.S.C. § 1447(d), namely remand orders in cases

removed pursuant to § 1442 or § 1443. The circuits have

split on the question as to whether, once an appeal of

a remand order has been specifically authorized by

§ 1447(d), the appellate court has jurisdiction to review

the entire order And all of the issues entailed in the decision to remand or whether the appellate court's juris-

diction is limited to a portion of the remand order

pertaining to specific legal issues.

The issue in this case arises because the Petitioner

removed this case from state court to federal court

and asserted two bases for removal: federal officer

jurisdiction pursuant to § 1442 and federal question

jurisdiction pursuant to § 1441/§ 1331. The federal

district court remanded the case, and the Petitioner

appealed to the Fourth Circuit. The Fourth Circuit

concluded that § 1442 did not support removal and

that its jurisdiction to review the remand order was

limited to that issue. As such, it dismissed the portion

of Petitioner's appeal pertaining to federal question

jurisdiction.

The Fourth Circuit's decision to dismiss the appeal

in part was erroneous and inconsistent with prior

decisions of this Court, the decisions of other circuits,

and the plain language and intent of § 1447(d), The

Fourth Circuit should have followed the approach of

the Seventh Circuit in Lu Junhong v. Boeing Co., 792

F.3d 805 (7th Cir. 2015) and determined that "once

an appeal of a remand "order" has been authorized

by statute, the appellate court may consider all of the

legal issues entailed in the decision to remand."4 The

Seventh Circuit's approach has been followed by two

4 Had the Fourth Circuit followed the approach of the Seventh

Circuit, it would have reviewed the entire remand order and all

the legal issues entailed in the decision to remand, including,

whether federal question jurisdiction existed in this case. Ultimately, this Court should vacate the Fourth Circuit's decision,

and remand the case to that Court for it to consider the entire

remand order, and all the legal issues entailed in the decision to

remand.

other circuits and it is entirely consistent with the

plain language and intent of § 1447(d) as well as

prior decisions of this Court. It is also the approach

that has been advocated by the leading treatise on

the subject of federal practice and procedure.

This case presents an ideal opportunity for the

Court to articulate a uniform interpretation of § 1447(d)

consistent with the plain language of that provision and

resolve the circuit split on an issue that will undoubtedly recur in the future. Certiorari is warranted.

41*STATEMENT OF THE CASE5

A. Overview of Case and the Discovery Responses

Leading to Petitioner's Removal of the Case

On February 17, 2016, Respondent initiated this

case with the filing of a complaint (the "Complaint")

in the Maryland state court alleging various violations

of the then-extant Maryland Lawyers' Rules of Pro5 Citations to the Appendix to the Petition are provided herein

in the form of (App.41-114) where "41-114" is the page number in the

Appendix. Citations to the Joint Appendix filed in the Fourth

Circuit (ECF No. 55) are provided herein in the form of (JA #/#/#)

whereIlillt" is the cited page number. Citations to the Opening

Brief of Appellant (ECF No. 83), which was filed by Petitioner

in the Court below, appear as "Open. Br. at lilt" where "lilt' is the

cited page number. Citations to the Response Brief of Appellee

(ECF No. 97), which was filed by Respondent in the Court below,

appear as "Resp. Br. at lilt" where ## is the cited page number.

Citations to the Reply Brief of Appellant (ECF No. 126), which

was filed by Petitioner in the Court below, appear as "Repl. Br.

at 444" where "lilt" is the cited page number.

fessional Conduct (MLRPC) in connection with litigation involving Petitioner's former clients and the

clients of an opposing counsel named Matthew .G.

Hjortsberg ("Hjortsberg"), who in March 2012, filed a

grievance with the Respondent against Petitioner.

(App.35a-61a).

During the state court proceedings, Petitioner

obtained discovery from Respondent in the form of

deposition testimony (App.70a-75a) and interrogatory

responses (App.62a-64a) conclusively establishing

the facts that, inter alia, Respondent is asserting (i) a

claim that Petitioner violated MLRPC 3.16 by developing and filing a qui tam case, in which two of

Hjortsberg's clients were defendants (hereinafter

"Qui Tam I")7, in the District Court on June 20, 2012

6 MLRPC 3.1 provides

A lawyer shall not bring or defend a proceeding, or

assert or controvert an issue therein, unless there is

a basis for doing so that is not frivolous, which

includes, for example, a good faith argument for an

extension, modification or reversal of existing law. A

lawyer may nevertheless so defend the proceeding as

to require that every element of the moving party's

case be established.

7 The interrogatory responses attached, and incorporated by

reference, a document called "Schedule A," which purported to

show each rule that was allegedly violated by each of the

respective actions of Petitioner that were enumerated in the

Complaint. See App.65a-69a. Schedule A was consistent with

the deposition testimony of Respondent's designee, and with

respect to the filing of Qui Tam I, revealed that Respondent

alleges Petitioner violated, inter alia, MLRPC 3.1. (App.70a74a). The deposition testimony and Schedule A revealed the exact

same thing with respect to the filing of the second qui tam case at

issue. (App.74a-75a).

(hereinafter "Operative Claim No. 1"); and (ii) a claim

that Respondent violated MLRPC 3.1 by developing and

filing a second qui tam case in which several of

Hjortsberg's clients were defendants (hereinafter "Qui

Tam II"),8 in the District Court on July 13, 2012

(hereinafter "Operative Claim No. 2").9 The fact that

the Respondent was asserting the Operative Claims

was significant because it necessarily meant that the

Respondent was placing the merits of the Qui Tam

Cases at issue in this case, since a claim that a case

is "frivolous" (and therefore that its filing violated

MLRPC 3.1) is inherently a claim about the merits of

the case.10

8 Hereinafter, Qui Tam I and Qui Tam II are sometimes collectively

referred to as the "Qui Tam Cases." The Qui Tam Cases both related

to real estate transactions involving FHA-insured mortgages that

were alleged to have been fraudulently procured and to have

resulted in losses to the Government. (See JA 346-61). The Qui

Tam Cases remained under seal for nearly 2.5 years after which

time the Government declined intervention in both cases in

November 2014. (App.58a, ¶ 66). However, with respect to the

transactions and scheme at issue in Qui Tam I, the Government

pursued and ultimately obtained guilty pleas from defendants

in three parallel criminal cases (the "QTI Parallel Criminal

Cases"). See Open. Br. at 15-16.

9 Hereinafter, Operative Claim No. 1 and Operative Claim No.

2 are sometimes collectively referred to as the "Operative Claims."

It is irrefutable that no court has ever found any filing by

Petitioner to be "frivolous" or sanctionable. (JA 17-18).

10 See Repl. Br. at 29 n. 20 (citing Atty. Griev. Comm'n. v.

Donnelly, 458 Md. 237, 314 (2018)). Petitioner sought to have

the matter tried in the federal court in order to, inter alia,

guarantee the availability of critical witnesses and information

necessary to resolve the Operative Claims. Repl. Br. at 21-22.

Removal to the District Court

In accordance with 28 U.S.C. § 1446(b)(3), within

30 days after receiving the aforementioned discovery

from Respondent establishing the fact that Respondent

was asserting the Operative Claims,11 on September

1, 2017, Petitioner filed a timely notice of removal

and removed this case to the District Court pursuant

to 28 U.S.C. § 1442(a)(1),12 and in the alternative, 28

U.S.C. § 1441 (the general removal statute) and 28

U.S.C. § 1331. (JA 8-38).13

1. Asserted Basis for Removal Under § 1442(a)(1)

(Federal Officer Jurisdiction)

Petitioner asserted that, with respect to the

Operative Claims, he satisfied all three elements for

removal under the FORS. Open. Br. at 42-78; Repl.

Br. at 4-27.14

11 It is notable that, at the beginning of the case in May 2016,

Petitioner attempted removal based upon the face of the

Complaint itself, but the Respondent effectively denied the fact

it was asserting the Operative Claims, and the District Court

determined the fact could not be ascertained from the face of the

Complaint itself. See App.28a ("The ethical misconduct claims

asserted by the AGC Complaint are not based on the fact that

[Petitioner] was counsel in federal qui tam litigation").

12 Hereinafter, 28 U.S.C. § 1442(a)(1) is sometimes referred to

as the "Federal Officer Removal Statute" or the "FORS."

13 In Kolibash v. Committee on Legal Ethics of West Virginia

Bar, 872 F.2d 571, 575 (4th Cir. 1989), the Fourth Circuit held

that attorney disciplinary cases are subject to the removal statutes.

14 It is well-established that a private person seeking to remove

a case to federal court under the FORS must satisfy three elements

with respect to at least one of the claims in the case: (1) the

With respect to the "acting under" element, Petitioner asserted that a qui tam relator and his attorney

are a type of government contractor who acts under

the Executive in preparing, filing and prosecuting qui

tam litigation to assist the Government in recovering

monetary losses sustained through fraud. Open. Br.

at 47-55; Repl. Br. at 5-11.15

"acting under" element; (2) the "federal defense" element; and

(3) the "for or relating to" element. Sawyer v. Foster Wheeler,

LLC, 860 F.3d 249, 254 (4th Cir. 2017). "[R]emoval of the entire

case is appropriate so long as a single claim satisfies the [FORS]."

Zeringue v. Crane Co., 846 F.3d 785, 794 (5th Cir. 2017).

15 For the proposition that a qui tam relator is a type of government

contractor, Petitioner cited United States ex rel. Kelly v. Boeing

Co., 9 F.3d 743 (9th Cir. 1993) ("[T]he FCA's qui tam provisions

operate as an enforceable unilateral contract.") and Vt. Agency

of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765,

773 (2000) (Holding relators have Article III standing in qui tam

cases because the FCA effects a partial contractual assignment of

the Government's damages claim). For the proposition that an

FCA relator acts under the Executive, Petitioner cited Brockovich

v. Cmty. Med. Ctrs., 2007 U.S. Dist. TEXTS 21355 at *16-17 (E.D.

Ca. 2007) ("Qui tam statutes generally have important procedural

safeguards, since they involve "the delegation of some sovereign

attributes" from the government to the private citizen . . . the

Executive Branch must retain control over a qui tam relator to

satisfy the Take Care Clause of the United States Constitution

. . ."); Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749, 753 (5th

Cir. 2001) ("The Executive retains significant control over

litigation pursued under the FCA by a qui tam relator"); and

United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714

F. Supp. 1084 (C.D. Cal. 1989) ("The relator is subject to a host,

of controls designed to permit the reassertion of executive

litigative authority"). For the proposition that an attorney for a

qui tam relator also functions as a type of government contractor

that effectively doubles as an attorney for the Government,

Petitioner cited, inter alia, United States ex rel. illergent Servs.

v. Flaherty, 540 F.3d 89 (2d Cir. 2008) (holding that a qui tam

With respect to the "federal defense" element,

Petitioner asserted he has numerous colorable federal

defenses to the Operative Claims. For example, as to

Operative Claim No. 1, Petitioner asserted that Qui

Tam I was not "frivolous," and thus, he has a defense

to Respondent's claim, hinging upon a question arising

under the federal False Claims Act, 31 U.S.C. § 3729

et seq. (the "FCA"). See Open. Br. at 56-64; Rept. Br.

at 15-27. He asserted that the plausibility of the defense

is supported by, inter alia, the results in the QTI

Parallel Criminal Cases, in one of which the Government obtained a monetary judgment for the losses it

sustained in 26 of the 27 transactions at issue in Qui

Tam I. /d.16 Petitioner asserted that the results in

the three QTI Parallel Criminal Cases established

that the methodology used to identify the transactions

at issue in Qui Tam I was objectively reasonable. Id.

With respect to Operative Claim No. 2, Petitioner

asserted that Qui Tam II was not "frivolous," and thus,

he also has a defense to that claim, hinging upon a

question arising under the FCA. Id at 64. He asserted

that the plausibility of the defense is supported by,

inter alia, the fact that the Government investigated

the transactions at issue in Qui Tam II for nearly 2.5

years before making its intervention decision and

that the same methodology used to identify the transactions at issue in Qui Tam I had also been used to

relator who is not an attorney cannot prosecute a qui tam case

because the relator's attorney effectively doubles as an attorney

for the Government and only a licensed attorney can represent

another in litigation).

16 It is notable that Respondent has never disputed any of the

facts underpinning any of Petitioner's alleged federal defenses.

See generally Resp. Br. at 23-45.

identify the transactions at issue in Qui Tarn II. Id.

at 64-65.

With respect to the "for or relating to" element,

Petitioner asserted it is clearly satisfied in this case

because, as to the Operative Claims, the asserted

official authority and the charged conduct are one in

the same. Open. Br. at 77-78; Repl. Br. at 27-28.

Namely, the development and filing of the Qui Tam

Cases in the District Court, something Petitioner and

his former client assert they were authorized to do by

the FCA. Id.

2. Asserted Basis for Removal Under § 1441

and § 1331 (Federal Question Jurisdiction)

Petitioner alternatively asserted a basis for

removal under § 1441 and § 1331, namely federal

question jurisdiction. First, citing Grable & Sons

Metal Products v. Darue Eng'g. & Mfg., 545 U.S. 308

(2005), Petitioner asserted that the Operative Claims

hinge upon a substantial question of federal law

because the issue of whether or not the Qui Tarn Cases

were "frivolous" (and hence whether MLRPC 3.1 was

violated in filing them) hinges purely upon resolution

of a question arising under the FCA. Open. Br. at 5758, 79; Repl. Br. at 29-30.

Petitioner further argued that, in the first instance,

the Operative Claims raise a question of federal law

for another reason, and that due to preemption, the

state code of professional conduct could not have been

violated, as to the Operative Claims, so long as the

District Court's own code of professional conduct was

not violated. Open. Br. at 72-75, 80; Repl. Br. at 2930. This is because neither MLRPC 3.1 nor any other

state rule of professional conduct directly applies to

any action (including the filing of the Qui Tam Cases)

taken by an attorney in the District Court. Id Rather,

Petitioner asserted, the District Court's own rules of

professional conduct apply and questions arising under

those rules are matters of federal law.17 In sum,

Petitioner argued, so long as the District Court's own

rules of professional conduct were not violated in the

Petitioner's filing of the Qui Tam Cases, the Operative

Claims necessarily fail because neither MLRPC 3.1

nor any other state rule could have been violated. As

such, Petitioner maintained, the Operative Claims

hinge upon a substantial question of federal law, and

the District Court had jurisdiction to hear those

claims pursuant to 28 U.S.C. § 1331. See Grable, 545

17 Petitioner cited McCallum v. CSX Transp., Inc., 149 F.R.D.

104, 108 (M.D. N.C. 1993) for the proposition that "[This Court

in In re Snyder, 472 U.S. 634, 645 n. 6 (1985)1 has made it clear

beyond peradventure that a federal court's decision to admit to

practice or discipline an attorney arises from an exercise of that

court's inherent power. Furthermore, the standards which arise

from exercise of that power must be found in federal law."

Petitioner asserted that, although the District Court, through

its Local Rule 704, has adopted the MLRPC, this does not

necessarily mean that the interpretation or application of any

given rule will necessarily be the same in the federal court as it

is in the state court. McCallum, 149 F.R.D. at 108 ("This Court

has adopted a code of conduct in its local rules. Local Rule 505

utilizes the Code of Professional Responsibility promulgated by

the Supreme Court of North Carolina. Notwithstanding, this

Court must look to federal law in order to interpret and apply

those rules. That is, even when a federal court utilizes state ethics

rules, it cannot abdicate to the state's view of what constitutes

professional conduct . . . ") (internal citation omitted).

U.S. at 308.18 Petitioner maintained that this case

forms one case or controversy as defined in Article III

of the United States Constitution, and therefore, that

the District Court had supplemental jurisdiction over

all of Respondent's remaining claims pursuant to 28

U.S.C. § 1367. Open. Br. at 80.

C. The Motion for Remand, the District Court's

Orders and the Fourth Circuit Appeal

On September 5, 2017, Respondent filed a motion

for remand arguing lack of federal jurisdiction. Over

Petitioner's opposition, the District Court granted the

motion for remand on September 20, 2017. (App.9a22a). The District Court rejected both of Petitioner's

asserted bases for federal jurisdiction and concluded

that it did not have jurisdiction to hear the case. Id.

Later, on September 20, 2017, Petitioner filed an

emergency motion for reconsideration. The District

Court denied the motion on September 22, 2017.

(App.4a-8a). On September 25, 2017, Petitioner filed a

timely notice of appeal seeking review of the District

Court's orders by the Fourth Circuit. (App.32a-34a).

The parties filed briefs in the Fourth Circuit, and

thereafter, on February 5, 2019, a panel of the Fourth

Circuit issued an unpublished per curiam opinion in

this matter. (App.la-3a). Without any discussion or

18 Put another way, Petitioner asserted that he was entitled, in

the first instance, to have any claims regarding his conduct in

the filing of the Qui Tam Cases judged by the District Court.

See Open. Br. at 80 (citing Cord v. Smith, 338 F.2d 516, 524

(9th Cir. 1964) ("When an attorney appears before a federal

court, he is acting as an officer of that court, and it is that court

which must judge his conduct")).

analysis, the panel concluded that the "[Petitioner]

failed to meet his burden of establishing that" he

satisfied the three elements required for a private

person to remove an action under the FORS. (App.2a).

Based upon this conclusion, the panel affirmed the

District Court's decision with respect to the portion

thereof pertaining to the FORS. Id. Based upon the

conclusion that § 1447(d) barred it from considering

the Petitioner's asserted alternative basis for removal

federal question jurisdiction), the Fourth Court

dismissed the remainder of Petitioner's appeal without

addressing that issue. (App.2a-3a).19 On February 19,

2019, Petitioner filed a Petition for Rehearing and

Rehearing En Banc, which the Fourth Circuit denied

on March 11, 2019. (App.31a).

Petitioner contends that the Fourth Circuit erred

in dismissing his appeal in part. Petitioner contends

that once review of a remand order has been authorized

by 28 U.S.C. § 1447(d), the appellate court has jurisdiction to review the entire remand order and all the

legal issues entailed in the decision to remand. As

such, Petitioner contends that, rather than limiting its

review to any issues surrounding the applicability of

the FORS, the Fourth Circuit should have considered

the entirety of Petitioner's appeal, and thus, it should

have addressed Petitioner's asserted alternative basis

for removal

federal question jurisdiction) and

any other issues entailed in the decision to remand.

19 It is highly notable that even Respondent did not argue that

the Fourth Circuit lacked jurisdiction to hear any portion of Petitioner's appeal. See generally Resp. Br. at 23-45.

REASONS FOR GRANTING THE WRIT

THERE IS A CLEAR SPLIT, AMONG THE CIRCUITS TO

HAVE CONSIDERED THE ISSUE, AS TO WHETHER AN

APPELLATE COURT MAY REVIEW THE ENTIRE

REMAND ORDER (AND ALL THE LEGAL ISSUES

ENTAILED THEREIN) IN CASES WHERE REVIEW IS

EXPLICITLY AUTHORIZED BY 28 U.S.C. § 1447(d)

Generally, "Mlle policy of Congress opposes

interruptions of the litigation of the merits of a

removed cause by prolonged litigation of questions of

jurisdiction of the district court to which the case is

removed." Kircher v. Putnam Funds Trust, 547 U.S.

633, 640 (2006). As such, "[nor over a century now,

statutes have accordingly limited the power of federal

appellate courts to review orders remanding cases

removed by defendants from state to federal court."

Id. (citing Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336, 346-48 (1976)). The current incarnation

of the statute limiting appellate review of remand

orders is 28 U.S.C. § 1447(d). Kircher, 547 U.S. at

640. 20 The bar of § 1447(d) has been held to apply

equally to cases removed under the general removal

statute and to those removed under other provisions.

Id. (citing Things Remembered, Inc. v. Petrarca, 516

U.S. 124, 128 (1995)).

20 In Thermtron Prods., this Court held that § 1447(d)'s bar on

appellate review of remand orders was limited to remands based

on the grounds specified in § 1447(c). Those grounds are a defect

in removal procedure or lack of subject matter jurisdiction.

Notwithstanding its general policy, Congress has

at times, exempted certain remand "orders" from

§ 1447(d)'s bar. Kircher, 547 U.S. at 641 n. 8. Indeed,

as the plain language of § 1447(d) reveals, an example

of remand "orders" explicitly exempted from the bar

to appellate review are "orders" in cases (such as

this) removed pursuant to 28 U.S.C. § 1442. Decatur

Hosp. Auth. v. Aetna Health, Inc., 854 F.3d 292, 295

(5th Cir. 2017).

Although § 1447(d) explicitly authorizes appellate

review of remand "orders" in cases removed pursuant

to § 1442, there is controversy over the scope of

review that is permissible in such cases. Is the appellate

court's review limited to just the portion of the

remand order pertaining to § 1442 (and/or other legal

issues for which there exists a specific exemption

from the § 1447(d) bar) or may the appellate court

review the entire remand order and all the legal issues

entailed in the decision to remand?

There is a clear split among the circuits regarding

this question. Prior to the Fourth Circuit's decision in

the case sub judice, over the past several years, four

circuits had addressed the question.

In Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224

(8th Cir. 2012), the Eighth Circuit addressed the

issue. In that case, the plaintiff, Shannon Jacks, on

behalf of herself and others similarly situated, sued

the defendants in a Missouri state court alleging state

law violations in connection with health insurance

plans the defendants administered. Id. at 1228. Thereafter, the defendants removed the action to federal

court asserting three bases for removal: (1) federal

officer jurisdiction pursuant to § 1442; (2) the Class

Action Fairness Act (CAFA); and (3) federal question

jurisdiction pursuant to 28 U.S.C. § 1441 and § 1331.

Id. The district court granted a motion by Ms. Jacks

to remand the case, and the defendants appealed to

the Eighth Circuit, which was confronted with the

question regarding the permissible scope of appellate

review for a remand order where the review was

specifically authorized by § 1447(d). Id. at 1228-29.

In its opinion, the Court noted that neither side had

cited authority or presented a coherent argument

regarding the question. Id. Nonetheless, ultimately,

the Eighth Circuit held that even when § 1447(d) or

another statute authorizes review of a remand order,

only the issue behind the exception to § 1447(d) is

reviewable. Id Based upon that determination, the

Court concluded that it had jurisdiction to review

issues regarding two of the three asserted bases of

removal: § 1442 and the CAFA. Id. At the same time,

the Court concluded that it lacked jurisdiction to

review any issues concerning the defendants third

basis of removal: federal question jurisdiction. Id.

A few years after Jacks, the Seventh Circuit was

confronted with the same question in Lu Junhong v.

Boeing Co., 792 F.3d 805 (7th Cir. 2015). In that

case, the plaintiffs, passengers on an Asiana Airlines

flight that crashed into a seawall upon attempting to

land at SFO International Airport in 2013, filed

lawsuits against Boeing in the Illinois state courts

contending that the design of various aircraft systems

had contributed to the crash. Id at 807. Boeing removed

the suits to federal court and asserted two bases of

removal: (1) federal officer jurisdiction pursuant to

§ 1442; and admiralty jurisdiction pursuant to § 1441

and § 1333. Id. at 807-08. The U.S. District Court for

the Northern District of Illinois remanded the suits

for lack of subject matter jurisdiction, and Boeing

appealed to the Seventh Circuit. Id. at 808. After

reviewing Boeing's argument with regard to § 1442,

the Seventh Circuit concluded, as had the lower court,

that § 1442 did not support removal. Id. at 810. The

plaintiffs took the position that, upon reaching the

conclusion that § 1442 did not apply, the appeal was

done on the purported basis that § 1447(d)'s bar to

appellate review precluded the Seventh Circuit from

considering Boeing's asserted alternative basis for

removal (admiralty jurisdiction). Id. at 811. Citing

this Court's decision in Yamaha Motor Coip., U.S.A.

v. Calhoun, 516 U.S. 199, 205 (1996), Boeing argued

that once an appeal of an order has been explicitly

authorized by statute, the appellate court reviews

the whole order and not just particular issues or

reasons. /d.21 Applying Yamaha Motor and its own

earlier precedent in Brill v. Countrywide Home Loans,

Inc, 427 F.3d 446 (7th Cir. 2005),22 the Seventh Circuit

agreed with Boeing and noted in relevant part:

21 In Yamaha Motor, this Court addressed the permissible scope

of review for interlocutory orders certified for appeal pursuant

to 28 U.S.C. § 1292(b). 792 F.3d at 811. The statute permits the

appellate court to review an interlocutory order if the district

court certifies that particular issues meet the statutory requirements. This Court held that once an appeal of such an interlocutory order is accepted, the appellate court reviews the entire

"order" rather than just particular issues. Id.

22 In Brill, the Seventh Circuit had held that once an appeal of

a remand order was authorized by CAFA, it could review the

entire remand order and all the legal issues entailed in the

decision to remand, including federal question jurisdiction. 792

F.3d at 811. After determining that CAFA did not support removal,

Section 1447(d) itself authorizes review of the

remand order, because the case was removed

(in part) pursuant to § 1442 . . . [O]nce an

appeal of a remand "order" has been authorized by statute, the court of appeals may

consider all of the legal issues entailed in

the decision to remand.

. . . [A]nother court of appeals has come to a

contrary conclusion. Jacks v. Meridian

Resource Co., 701 F.3d 1224, 1229 (8th Cir.

2012), holds that, even when a statute authorizes review of a remand order, only the issue

behind the exception to § 1447(d) is reviewable; consideration of other issues is blocked

by § 1447(d), the court stated. For this proposition, it cited—nothing. Jacks did not discuss

the significance of the statutory reference to

review of an "order." It did not mention

Yamaha Motor. It did not mention Brill . . .

[*** ]

The [Supreme] Court remarked in Kircher,

[supra,] 547 U.S. at 641 n.8, that Congress

has on occasion made the rule of § 1447(d)

inapplicable to particular "orders"--and for

this the Court cited, among other statutes,

§ 1447(d) itself. We take both Congress and

Kircher at their word in saying that, if appellate review of an "order" has been authorized,

that means review of the "order." Not par-

the Court went on to conclude that removal had been proper based

upon federal question jurisdiction.

titular reasons for an order, but the order

itself.

[***[

If we go beyond the text of § 1447(d) to the

reasons that led to its enactment, we reach

the same conclusion. The Supreme Court

has said that § 1447(d) was enacted to prevent appellate delay in determining where

litigation will occur. Since the suit must be

litigated somewhere, it is usually best to get

on with the main event. But once Congress

has authorized appellate review of a remand

order—as it has authorized review of suits

removed on the authority of § 1442—a court

of appeals has been authorized to take the

time necessary to determine the right forum.

The marginal delay from adding an extra

issue to a case where the time for briefing,

argument, and decision has already been

accepted is likely to be small.

Lu Junhong, 792 F.3d at 811-13 (emphasis added;

internal citations omitted).23

Citing Lu Junhong in 2017, the Sixth Circuit

followed suit in Mays v. City of Flint, 871 F.3d 437,

442 (6th Cir. 2017) and concluded that once it had

been authorized by § 1447(d) to review a remand order,

23 Interestingly, after deciding that it had jurisdiction to review

the entirety of the remand order, the Seventh Circuit in Lu

Junhong went on to review Boeing's second asserted basis of

removal (admiralty jurisdiction). Id. at 813-18. Upon completing

that review, the Court decided that admiralty jurisdiction

existed; and therefore, that remand had been improper. Id.

it could review the whole order. The Court noted in

relevant part, "This timely appeal of the remand order

is authorized by 28 U.S.C. § 1447(d) because the

[defendants] removed the case under 28 U.S.C. § 1442.

Our jurisdiction to review the remand order also

encompasses review of the district court's decision on

the alternative ground for removal under 28 U.S.C.

§ 1441" (emphasis added).

Also citing Lu Junhongin 2017, the Fifth Circuit

followed suit in Decatur Hospital, supra, 854 F.3d at

295, and came to the same conclusion regarding its

ability to review the entirety of a remand order that

it had been authorized to review by § 1447(d). The

Court noted in relevant part, "Like the Seventh

Circuit, we take both Congress and Kircher[, supra,

547 U.S. at 641 n.8] at their word in saying that, if

appellate review of an 'order' has been authorized,

that means review of the 'order.' Not particular reasons

for an order, but the order itself' (emphasis added;

internal quotation marks and brackets omitted).

Thereafter, as noted supra, in its February 2019

opinion in this case, the Fourth Circuit concluded, as

had the Eighth Circuit in Jacks, that its jurisdiction

to review the remand order extended only to the portion

of the order addressing the issue behind the exception

to § 1447(d). (App.2a-3a). For that reason, upon deciding

that § 1442 did not support removal of this case, the

Court did not address the secondary basis of removal

asserted by Petitioner (i.e., federal question jurisdiction). Id. The Fourth Circuit's decision further exacerbated the already-existing and clear circuit split

and presents a strong reason for this Court to grant

certiorari and decide the question presented.24

II.

FOR THE REASONS STATED BY THE SEVENTH CIRCUIT

IN LU JUNHONG, THAT DECISION AND THE

DECISIONS OF THE SIXTH AND FIFTH CIRCUITS IN

MA YS AND DECATUR HOSPITAL, RESPECTIVELY,

WERE CORRECT WHEREAS THE DECISIONS OF THE

EIGHTH CIRCUIT IN JACKS AND THE FOURTH

CIRCUIT IN THIS CASE WERE ERRONEOUS

Lu Junhong and the decisions that followed it,

were correct, as they were fully consistent with this

Court's precedents as well as the purpose and plain

language of § 1447(d). As the Seventh Circuit explained

in Lu Junhong and as the Fifth Circuit reiterated in

Decatur Hospital, this Court's decision in Kircher

recognizes that Congress intended to exempt some

remand "orders" from § 1447(d)'s bar. 547 U.S. at 641

n.8. The plain language of § 1447(d) clearly contemplates that the exemption is not for particular

reasons or issues associated with a remand "order,"

but rather the remand "order" itself in any cases

removed pursuant to § 1442 or § 1443. This language

suggests that Congress intended the appellate courts

be able to review the entirety of the "order" and any

reasons or issues therein. Interpreting § 1447(d) in

this manner is entirely consistent with the manner

in which this Court interpreted 28 U.S.C. § 1292(b)

in Yamaha Motor. Namely, permitting appellate review

24 It should be noted that, as of this writing, other than the Fourth,

Fifth, Sixth, Seventh, and Eighth Circuits, the Petitioner is not

aware of any other circuits to have addressed the question

presented in this case.

of the entire "order" rather than just particular issues.

As the Seventh Circuit noted in Lu Junhong, there is

no reason to treat orders subject to appellate review,

pursuant to § 1447(d), any differently from orders

subject to appellate review, pursuant to § 1292(b).

Furthermore, it would not advance the purpose

of § 1447(d) to interpret the statute as only permitting review of particular reasons or issues in

remand "orders" where review has been explicitly

authorized. The purpose of the statute, as was aptly

articulated by the Seventh Circuit in Lu Junhong, is

to prevent delay in determining the forum in which

litigation will occur. 792 F.3d at 813. Once appellate

review of a remand order has been authorized by

Congress, however, limiting the scope of review of

such "order" would not significantly prevent any delay

because the additional time required to decide an extra

issue in a case already pending before the appellate

court would be marginal. Id. Indeed, the leading

treatise on Federal Practice & Procedure recognizes

this fact and supports the approach taken by the

courts in Lu Junhong and the cases that followed it:

Review should be extended to all possible

grounds for removal underlying the order.

Once an appeal is taken there is very little

to be gained by limiting review; the only plausible concern is that an expanded scope of

review will encourage defendants to rely on

strained arguments under § 1442 or § 1443 in

an effort to support appeal on other grounds.

Sufficient sanctions are available to deter

frivolous removal arguments that this fear

should be put aside against the sorry possibility that experience will give it color.

Lu Junhong, 792 F.3d at 812 (quoting Edward H.

Cooper, 15A Wright & Miller Federal Practice & Procedure § 3914.11 (2014 rev.)) (emphasis added; internal

brackets and ellipses omitted).

In contrast to the approach taken by the courts

in Lu Junhong, Mays, and Decatur Hosp., there do

not exist any compelling reasons that particularly

support the approach taken by the Eighth Circuit in

Jacks and the Fourth Circuit in this case—that even

when § 1447(d) authorizes review of a remand order,

only the issue behind the exception to § 1447(d) is

reviewable. See 792 F.3d at 812. Both circuits failed

to discuss the significance of § 1447(d)'s references to

review of an "order." Id. They further did not mention

Kircher, Yamaha Motor or any other relevant authorities such as Brill. Id.

Perhaps even more importantly, the decisions in

Jacks and this case are not consistent with the plain

language or purpose of § 1447(d) and they do not

comport with this Court's decisions in Kircher and

Yamaha Motor. They further do not comport with the

approach advocated by the leading treatise on the

subject. For these reasons, the approach taken by the

Eighth Circuit in Jacks and the Fourth Circuit in

this case is simply wrong. Thus, this Court should

grant certiorari to correct the Fourth Circuit's error

and hold that the right approach is the one taken by

the courts in Lu Junhong, Mays, and Decatur Hospital.

III. THIS CASE PRESENTS AN IDEAL VEHICLE FOR

RESOLVING A QUESTION OF EXCEPTIONAL IMPORTANCE THAT WILL RECUR IN THE FUTURE; A UNIFORM INTERPRETATION OF § 1..447(d) IS NECESSARY

TO ENSURE THAT PARTIES ARE NOT TREATED

DIFFERENTLY DEPENDING UPON WHERE THE CASE

IS LITIGATED

This case presents a clean vehicle for this Court

to decide the question presented and articulate a

uniform interpretation of § 1447(d) that is consistent

with the plain language of the statute. The material

facts are all undisputed: (1) Petitioner removed the

case from a state court to federal court; (2) Petitioner

asserted two bases for removal: federal officer jurisdiction and federal question jurisdiction; (3) The District Court granted a motion by Respondent and

remanded the case; (4) Petitioner appealed the remand

order to the Fourth Circuit; (5) The Fourth Circuit,

after opining that federal officer jurisdiction did not

support removal of the case, dismissed the remainder

of Petitioner's appeal on the purported basis that

§ 1447(d) deprived it of jurisdiction to consider the

remaining issues in the remand order; and (6) The

majority of circuits to have considered the issue

before this case had concluded that once § 1447(d)

authorizes appellate review of a remand order, the

appellate court reviews the entire "order" and not just

particular issues or reasons. No other issues cloud

this Court's review of the case.

Because the question presented is the subject of

a circuit split and because it inures to the jurisdiction

of the courts of appeal to review remand orders specifically exempted from § 1447(d)'s bar on appellate

review, the question is one of exceptional importance.

See e.g., Fed. R. App. P. 35(b)(1)(B). Since parties

removing cases frequently cite more than one basis

of removal (e.g., § 1442 and § 1441/§ 1331), the issue

presented by this case will undoubtedly recur in

the future. Thus, it is clearly in the public interest

for this Court to grant review of this case. See e.g.,

Comments to Fed. R. App. P. 35 ("Intercircuit conflicts create problems. When the circuits construe the

same federal law differently, parties' rights and

duties depend upon where a case is litigated . . . ").

In sum, just as this Court took the opportunity

in Yamaha Motors to articulate a uniform interpretation of § 1292(b) consistent with the statute's

plain language,25 it should take the opportunity in

this case to articulate a uniform interpretation of

§ 1447(d) consistent with the plain language of that

statute.26

25 516 U.S. at 204-05.

26 To the extent that this case presents the Court with an

opportunity to articulate a uniform interpretation of § 1447(d)

consistent with the plain language of the statute, it presents the

Court with the chance to revisit and/or further clarify its decision

in Thermtron Prods., supra, 423 U.S. at 336, a case that many

people believe was decided incorrectly because the Court, in that

case, adopted an atextual reading of the statute. See Kakarala

v. Wells Fargo Bank, NA., 136 S.Ct. 1153 (2016) (Thomas, J.,

dissenting from the denial of certiorari).

CONCLUSION

The Petition for Writ of Certiorari should be

GRANTED.

Respectfully submitted,

JASON EDWARD RHEINSTEIN

PETITIONER PRO SE

P.O. BOx 1369

SEVERNA PARK, MD 21146

(410) 340-8396

JASON@JER-CONSULTING. COM

JULY 25, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.