Commonwealth v. Dowling (In re Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Ass'n of Phila.)

Decision Date25 October 2013
Docket NumberCIVIL ACTION NO. 1:13-CV-510
PartiesIn Re: Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia, Respondent, Filed In COMMONWEALTH OF PENNSYLVANIA, v. KEVIN DOWLING.
CourtU.S. District Court — Middle District of Pennsylvania



Presently before the Court is the Community Defender Organization, Eastern District of Pennsylvania's (the "FCDO")1 Motion for Reconsideration (Doc. 44) of the August 16, 2013 Memorandum and Order granting the Commonwealth of Pennsylvania's (the "Commonwealth") Motion to Remand and denying as moot the FCDO's Motion to Dismiss. See In re Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia, Respondent, Filed In Commonwealth v. Dowling, No. 13-CV-510, 2013 WL 4458848 (M.D. Pa. Aug. 16, 2013) (hereinafter Dowling). Because the FCDO fails to establish the need to correct a clear error of law, the motion for reconsideration will be denied.

I. Background

As the relevant facts are set forth in the August 16, 2013 Memorandum, they will not be repeated at length herein. See generally Dowling, 2013 WL 4458848, at *1-4. Forpurposes of resolving the instant motion for reconsideration, it is sufficient to note that the underlying proceeding in this action, the Commonwealth's Motion to Appoint Counsel, was filed in Kevin Dowling's ("Mr. Dowling") pending Post Conviction Relief Act ("PCRA") proceedings challenging his conviction and sentence of death. See id. Although styled as a request to appoint counsel, Mr. Dowling is currently represented in the PCRA proceedings by the FCDO. Thus, in actuality, the Motion to Appoint Counsel requests a hearing to determine whether the FCDO can continue to represent Mr. Dowling in his PCRA proceedings in light of the Pennsylvania Supreme Court's per curiam order in the PCRA case of Commonwealth v. Mitchell, No. 617 CAP.

The FCDO removed the Commonwealth's Motion to Appoint Counsel to this Court pursuant to 28 U.S.C. § 1442. Subsequently, the Commonwealth filed a motion to remand and the FCDO filed a motion to dismiss. On August 16, 2013, I granted the Commonwealth's motion to remand on the basis that the FCDO failed to establish that it "act[s] under" a federal officer for purposes of § 1442(a)(1). See Dowling, 2013 WL 4458848, at *14. As a result, the FCDO's motion to dismiss was denied as moot. See id.2

The FCDO filed a motion for reconsideration of the August 16, 2013 Memorandum and Order on August 20, 2013, (Doc. 44), and a brief in support on August 26, 2013. (Doc. 45.) The Commonwealth filed a timely brief in opposition. (Doc. 47.) The motion for reconsideration is now ripe for disposition.

II. Legal Standard

A motion for reconsideration is governed by Rule 59(e) of the Federal Rules of Civil Procedure, which allows a party to move to alter or amend a judgment within twenty-eight (28) days of entry. Fed. R. Civ. P. 59(e). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citation omitted). A judgment may be altered or amended if the party seeking reconsideration establishes at least one of the following grounds: "(1) an intervening change in controlling law; (2) the availability of new evidence that was not available when the court granted the motion; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café, by Lou Ann, Inc., v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A motion for reconsideration is not to be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant." Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002). "[R]econsiderationmotions may not be used to raise new arguments or present evidence that could have been raised prior to the entry of judgment." Hill v. Tammac Corp., No. 05 1148, 2006 WL 529044, at *2 (M.D. Pa. Mar. 3, 2006). Lastly, the reconsideration of a judgment is an extraordinary remedy, and such motions should be granted sparingly. D'Angio v. Borough of Nescopeck, 56 F. Supp. 2d 502, 504 (M.D. Pa. 1999).

III. Discussion

At issue in the instant motion for reconsideration is the federal officer removal statute, 28 U.S.C. § 1442. The statute provides, in pertinent part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. . . .

28 U.S.C. § 1442(a)(1) (2013). Jurisdiction under § 1442(a)(1), according to the Third Circuit, requires that:

a defendant . . . must establish that (1) it is a "person" within the meaning of the statute; (2) the plaintiff's claims are based upon the defendant's conduct "acting under" a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office.

Feidt v. Owens Corning Fiberglass Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v. California, 489 U.S. 121, 129, 109 S. Ct. 959, 965, 103 L. Ed. 2d 99 (1989); Willingham v. Morgan, 395 U.S. 402, 409, 89 S. Ct. 1813, 1817, 23 L. Ed. 2d 396 (1969)).

In the August 16, 2013 decision, I determined that the FCDO failed to establish jurisdiction pursuant to § 1442(a)(1). See generally Dowling, 2013 WL 4458848, at *12-14. In that Memorandum, I concluded that the FCDO was a "person" within the meaning of the statute, and I further assumed that the third and fourth Feidt factors, the colorable federaldefense and causal nexus inquiries, respectively, were satisfied. See id. at *5-6. Nevertheless, the proceeding was remanded to the Court of Common Pleas because the FCDO failed to establish the "acting under" requirement for federal officer removal. I reasoned:

[E]ven if the FCDO is "acting under" a federal officer in the course of its representation of clients in federal court, it does not follow that it also "act[s] under" a federal officer in its performance of tasks for which the Government bears no responsibility, such as appearing in state post-conviction capital proceedings to exhaust claims for federal habeas review. Indeed, "[c]ritical under the statute is to what extent defendants acted under federal direction at the time they were engaged in the conduct now being sued upon." In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 125 (2d Cir. 2007) (emphasis added) (noting that the "acting under" and causal connection considerations tend to collapse into a single requirement and stating that "removal will not be proper where a private party establishes only that the acts complained of were performed under the 'general auspices' of a federal officer."); Parlin v. DynCorp Int'l, Inc., 579 F. Supp. 2d 629, 635 (D. Del. 2008).

Id. at *12.

The FCDO seeks reconsideration of this determination. According to the FCDO, this analysis collapsed the "acting under" and causal nexus requirements for federal officer removal into a single inquiry. The result, the FCDO argues, was "stiffening the 'acting under' requirement by demanding a showing of nexus between the FCDO's state court litigation and its federal contract," which had the impact of denying effect to the 2011 amendments to § 1442(a)(1). (Doc. 45, 10.) Essentially, the FCDO asserts that its investigation and research of claims while appearing in PCRA proceedings should be analyzed as part of the "for or relating to any act under color of [federal] office" inquiry.

Because the FCDO's motion for reconsideration addresses both the "acting under" and causal nexus requirements under Feidt, and because I only assumed the causal nexus inquiry was satisfied in my prior decision, they will both be discussed herein. Under Supreme Court precedent, to satisfy the "acting under" requirement of § 1442(a)(1), a private person's actions "must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior." Watson v. Philip Morris Cos., 551 U.S. 142, 146, 127 S. Ct.2301, 168 L. Ed. 2d 42 (2007) (emphasis omitted). The Watson Court also distinguished between private contractors doing business in areas that are subject to intense regulation, which could not remove an action under § 1442(a)(1) on that basis alone, with private contractors under close supervision by the federal government, which could:

The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform.
These circumstances distinguish Winters from this case. For present purposes that distinction is sufficient. And we need not further examine here (a case where private contracting is not at issue) whether and when particular circumstances may enable private contractors to invoke the statute.

Id. at 153-54...

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