Proceeding before the Court of Common Pleas of Philadelphia v. Johnson

790 F.3d 457

• Court: Court of Appeals for the Third Circuit
• Decided: June 12, 2015
• Docket: Nos. 13-3853, 13-3854, 13-3855, 13-4070, 13-4269, 13-4325
• Status: Published

Opinions

OPINION

FUENTES, Circuit Judge:

This case involves a concerted effort by the 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 th¿ 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 Pennsylvania 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 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

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, — U.S. —, 132 S.Ct. 1276, 1284, 182 L.Ed.2d 135 (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, 129 S.Ct. 1481, 173 L.Ed.2d 347 (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 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 Association 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 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, 610 Pa. 17, 18 A.3d 244, 334 (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 state post- ■ conviction proceedings. Id. at 165, 18 A.3d 244.

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. ll-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 Pennsylvania. . 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, and Middle Districts of Pennsylvania.⁴ In each case, a federal 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 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).

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, 618 Pa. 262, 55 A.3d 1108, 1151 (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, 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 jurisdiction, 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 the following reasons, we agree.

The federal officer removal statute has existed in some form since 1815. Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (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. Philip Morris Cos., Inc., 551 U.S. 142, 150, 127 S.Ct. 2301, 168 L.Ed.2d 42 (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, 89 S.Ct. 1813. 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 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 re-. moval 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 plaintiffs complaint establishes that the case arises under federal law.” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n. 12, 126 S.Ct. 2145, 165 L.Ed.2d 92 (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).

The Removal Clarification Act of 2011, Pub.L. 11251, 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 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 Coming 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 ; see also Ruppel, 701 F.3d at 1181. As a non-profit corporation, the Defender Association of Philadelphia 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, 127 S.Ct. 2301. 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, 127 S.Ct. 2301 (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 federal superior.” Id. at 152, 127 S.Ct. 2301. The Court has stressed that “[t]he words acting under are broad, and ... that the statute must be ‘liberally construed.’ ” Id. at 147, 127 S.Ct. 2301 (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932)).

While the Court has not precisely determined “whether and when particular circumstances may enable private contractors to invoke the statute,” id. at 154, 127 S.Ct. 2301, 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, 127 S.Ct. 2301. 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, 127 S.Ct. 2301. 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, 127 S.Ct. 2301.

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, 127 S.Ct. 2301. The factual scenario in Watson itself is illustra-. tive. 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, 127 S.Ct. 2301. 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, 127 S.Ct. 2301. 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.

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, 127 S.Ct. 2301. 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, 127 S.Ct. 2301; 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, 127 S.Ct. 2301. 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, 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.

Given these considerations, we conclude that the Federal Community Defender satisfies this requirement.

3. The Commonwealth’s claims concern acts “for or relating to” án 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 “/or any act under color of [federal] office.” 28 U.S.C. § 1442(a)(1) (2010) (emphasis added).⁷ In 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, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quotation marks omitted).

For example, in Maryland v. Soper (No. 2), 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459 (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 per-jurious testimony. Id. at 41, 46 S.Ct. 192. The Court 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, 46 S.Ct. 192. 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, 119 S.Ct. 2069. 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, 119 S.Ct. 2069. 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, 119 S.Ct. 2069. 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, 119 S.Ct. 2069 (“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 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, 119 S.Ct. 2069. 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, 112 S.Ct. 2031, 119 L.Ed.2d 157 (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, 103 S.Ct. 2890, 77 L.Ed.2d 490 (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, 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, 119 S.Ct. 2069; Willingham, 395 U.S. at 409, 89 S.Ct. 1813 (“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 ha-beas 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 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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 119 S.Ct. 2069. Since at least 1880, the Supreme Court has required that 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, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) (quoting Tennessee v. Davis, 100 U.S. 257, 262, 25 L.Ed. 648 (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, 109 S.Ct. 959.⁹

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, 119 S.Ct. 2069. 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, 109 S.Ct. 959. But the fact that duty-based defenses are the most common defenses does not make them the only permissible ones.

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, 7 S.Ct. 262, 30 L.Ed. 465 (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, 7 S.Ct. 262. McClung argued that he had no duty to notify the railroad company-under federal law, which allowed him to remove. Id. at 462, 7 S.Ct. 262. 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, 109 S.Ct. 959. In both cases, the defenses “are equally defensive and equally based in federal law.” Id.

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, 129 S.Ct. 1481. 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, 129 S.Ct. 1481. 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, 129 S.Ct. 1481. 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, 129 S.Ct. 1481. The Court never stated, however, that Federal Community Defender counsel 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, 119 S.Ct. 2069, we find this defense to be colorable.

Next, the Federal Community Defender claims that the Commonwealth is im-permissibly 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, 121 S.Ct. 1012, 148 L.Ed.2d 854 (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, 119 S.Ct. 2069 (alterations in original and quotation marks omitted). This, too, is a “color-able” 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 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 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 Y, § 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 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.” MB Mall Assocs., LLC v. CSX Transp., Inc., 715 F.3d 479, 495 (3d Cir.2013), cert. denied, — U.S. —, 134 S.Ct. 905, 187 L.Ed.2d 778 (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, 120 S.Ct. 2288, 147 L.Ed.2d 352 (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, 120 S.Ct. 2288 (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 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, 129 S.Ct. 1187, 173 L.Ed.2d 51 (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, 121 S.Ct. 1012.

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, 97 S.Ct. 2691, 53 L.Ed.2d 810 (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, 618 Pa. 262, 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, 121 S.Ct. 1012. 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 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 PCKA 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 eyen 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, — U.S. —, 132 S.Ct. 2492, 2503, 183 L.Ed.2d 351 (2012) (quoting Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986)). “Sanctions are drawn not only to bar what they 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, 120 S.Ct. 2288 (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, 121 S.Ct. 1012; 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, 121 S.Ct. 1012.

Consequently, we hold that the disqualification 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

1 . Isaac Mitchell, the petitioner in the underlying post-conviction 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/rules-policies/judiciary-policies/criminal-justice-act-cja-guidelines (last visited May 27, 2015).

3 . Middle District Plan, § VII, available at http://www.pamd.uscourts.gov/sites/default/ files/cja_plan.pdf (last visited May 27, 2015).

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-CV-510, 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-CV-511, 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, L13-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.Pa. Aug. 15, 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.

6 . Although the disqualification proceedings were removed to federal court, the underlying PCRA actions remained in state 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).

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).

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. 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); Mesa, 489 U.S. at 129, 109 S.Ct. 959 (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).

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) ("[Tjhe 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).”).

11 . We also wish to express our agreement with the sentiments expressed in the concurrence, which further discusses the context of this dispute.