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Attorney Grievance Commission of Maryland v. Rheinstein

United States District Court, D. Maryland

September 22, 2017

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND Plaintiff
v.
JASON EDWARD RHEINSTEIN Defendant

          MEMORANDUM AND ORDER DENYING EMERGENCY MOTION

          Marvin J. Garbis United States District Judge.

         The 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 of counsel.

         In the 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.

         Defendant 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.

         Defendant's asserted precedents do not support his entitlement to have his state court attorney grievance proceedings adjudicated by the federal, rather than state, court systems.

         First, 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).

         Defendant 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.

         Next, 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 Maryland-barred lawyer.

         Finally, 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 grievance proceeding.

         Moreover, 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 irrelevant.

         Defendant 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 him.

         Accordingly, 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 ...


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