2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-12-2015

In Re: Commonwealth's Motion

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Recommended Citation

"In Re: Commonwealth's Motion" (2015). 2015 Decisions. Paper 611.

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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
2

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
3

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-cv00561; 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
4

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 
5

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 
6

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

(last visited May 27, 2015).
7

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 
8

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 
9

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).
10

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 
11

and Middle Districts of Pennsylvania.4In 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-CV510, 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-CV511, 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. 
12

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).
13

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.
14

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.
15

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 
16

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 
17

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). 
18

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 
19

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 
20

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 
21

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.
22

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. 
23

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, 
24

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. 
25

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).7In 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). 
26

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).
27

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, 
28

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 
29

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 
30

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).
31

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. 
32

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 
33

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 
34

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).”).
35

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 
36

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 
37

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 
38

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 
39

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 
40

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.
1

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.
2

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 thenJustice 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 stateappointed 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”). 
3

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 initialreview 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 postconviction 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. 
4

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 wellpresented 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 oneyear 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 
5

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 postconviction 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.”).
6

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 postconviction 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.”).
7

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.
8

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 
9

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 
10

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.
11

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).
12

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.9It 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).
13

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). 
14

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 
15

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. 
16

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.