United States District Court, D. Maryland
MEMORANDUM AND ORDER DENYING EMERGENCY
J. Garbis United States District Judge.
Court has before it Defendant's Emergency Motion to Stay
Remand Order Pending Filing of Notice of Appeal; or In The
Alternative, Emergency Motion for Reconsideration; or In The
Alternative; Motion for Appropriate Relief [ECF No. 89] and
the materials submitted relating thereto. The Court has held
a telephonic hearing and has had the benefit of the arguments
Memorandum and Order Re: Remand [ECF No. 86], issued
September 20, 2017, the Court granted Plaintiff's Motion
to Remand [ECF No. 68]. The Court entered an Order Remanding
Case [ECF No. 87] to the state court on the same day.
alleges that the Court's Order Remanding Case was
erroneously issued and that appellate review is not
prohibited by 28 U.S.C. § 1447(d) because removal should
have been permitted under 28 U.S.C. § 1442 (federal
officer or federal agency jurisdiction). The Court, having
considered Defendant's current contentions, confirms its
decision that remand is appropriate as held in the Memorandum
and Order Re: Remand and, again states that even if the Court
had jurisdiction, it would abstain from proceeding with the
case in federal court.
asserted precedents do not support his entitlement to have
his state court attorney grievance proceedings adjudicated by
the federal, rather than state, court systems.
Defendant cites Sawyer v. Foster Wheeler LLC, 860
F.3d 249 (4th Cir. 2017). Sawyer states that a
government contractor could remove a state tort action to
federal court based on the contractor's assertion that it
had a colorable federal defense of government-contractor
immunity. Id. at 256. However, Defendant's
position as a relator in a previous qui tam action
does not confer him federal jurisdiction in his
current attorney removal proceeding case. Even
though the federal officer removal statute under 28 U.S.C.
§ 1442 covers actions “for or relating to any act
under color of such office, ” Defendant's
participation in the qui tam proceedings was not
done under color of office. And, as explained in this
Court's first remand order, putting aside the question of
whether a qui tam relator is analogous to a
government contractor, Defendant has not shown a colorable
federal defense. Attorney Grievance Commission of
Maryland v. Rheinstein, Civ. No. MJG-16-1591, ECF No.
30, at 5-7 (Mar. 17, 2017).
also cites U.S. ex rel. Kelly v. Boeing Co., 9 F.3d
743 (9th Cir. 1993). Boeing considered the
constitutionality of the qui tam provisions in the
False Claim Act. It has nothing to do with subject matter
jurisdiction or removal to federal court. Defendant picks a
choice quote from the part of the opinion that discusses
whether a qui tam plaintiff has standing to sue
under the False Claims Act, which is not at issue here.
Def.'s Emergency Mot. ¶ 2.
Defendant cites Vermont Agency of Nat. Res. v. U.S. ex
rel. Stevens, 529 U.S. 765 (2000). In Vermont Agency
of Nat. Res., a private relator attempted to bring suit
in federal court on behalf of the United States against a
State under the False Claims Act. The Supreme Court held that
although a private individual has standing to bring suit in
federal court on behalf of the United States under the False
Claims Act, the Act does not subject a State to liability in
such actions. Id. at 788. The jurisdictional
question was whether a State was a “person” for
purposes of qui tam liability. This is irrelevant to
the analysis of the instant case presenting the question of
whether Rheinstein committed attorney misconduct as a
Defendant cites Northrop Grumman Tech. Servs., Inc. v.
DynCorp Int'l LLC, 2016 WL 3346349, at *1 (E.D. Va.
June 16, 2016), a case in which the district court granted a
plaintiff's emergency motion to stay the remand order
until the appeal was resolved. On its own, the decision does
not present a reason why, in this case, the Court should
provide Defendant his requested delay of the state attorney
this Court may not reconsider its ruling. See In re
Lowe, 102 F.3d 731, 736 (4th Cir. 1996)
(“Accordingly, we hold that a federal court loses
jurisdiction over a case as soon as its order to remand the
case is entered. From that point on, it cannot reconsider its
ruling . . .”). The case that Defendant cites to
challenge this proposition addresses an attempt to secure a
more favorable state forum by using a motion for voluntary
dismissal. Wingo v. State Farm Fire & Cas. Co., 2013
WL 4041477, at *1 (W.D. Mo. Aug. 8, 2013). It is entirely
has not explained why he has not - or at least not yet -
filed an appeal from the Court's Order on the § 1442
claim of federal jurisdiction and sought promptly to have the
appellate court to stay the instant case pending resolution
of his appeal. Perhaps he will now do so. In any event, with
the state court trial set to proceed in little over a week,
this Court does not find it appropriate to grant Defendant
the delay in facing the grievance proceedings pending against
Defendant's Emergency Motion to Stay Remand Order Pending
Filing of Notice of Appeal; or In The Alternative, Emergency
Motion for Reconsideration; or In The ...