IN RE COMMONWEALTH’S MOTION TO APPOINT NEW COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA
FRANCIS BAUER HARRIS COMMONWEALTH OF PENNSYLVANIA
CYNTHIA M. RUFE, J.
Before the Court is the Commonwealth’s Motion for Reconsideration of its Memorandum Opinion dated August 22, 2013, and the Defender Association of Philadelphia’s response thereto. For the reasons below, the Motion will be denied.
I. Standard of Review
A motion for reconsideration, or, to use the words of Fed.R.Civ.P. 59(e), a motion to alter or amend judgment, “is extremely limited. Such motions are not to be used as an opportunity to relitigate the case; rather, they may be used only to correct manifest errors of law or fact or to present newly discovered evidence.” The Third Circuit has held that “a judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion [to be reconsidered]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.”
The Commonwealth has not alleged that an intervening change in the law has occurred. Nor does it seriously contend that it has discovered new evidence that was not available at the time the motion was decided. Instead, it states that “through continued research” it has “discovered” a series of cases that were decided before this Court issued its Order on August 22, 2013. It should go without saying that “new evidence” means material discovered after a judgment or order that could not have been found with due diligence beforehand and that could be used to prove a fact. New evidence is not additional legal argumentation that the Commonwealth could have relied on in its briefing but did not, and it is certainly not a case that the Court has already cited.
Because there has been no intervening change in controlling law nor has the Commonwealth adduced new evidence, the only possible ground for reconsideration is to correct a clear error of law or fact or to prevent manifest injustice. The Commonwealth has failed to allege any ground sufficient to grant its motion.
A. The “Heightened Burden” Argument
In its Motion, the Commonwealth argues that the FCDO as a “private party” needs to meet a higher burden for removal than a federal officer and then jumps to the conclusion that this “heightened burden” means that the federal officer removal statute should be strictly construed and all doubts resolved in favor of remand. Because remand is favored, the argument continues, this Court should grant the Commonwealth’s motion for reconsideration.
Based on the cases cited by the Commonwealth, the Court understands it to argue that because the FCDO is not itself a federal officer, it needs to establish that it acted under the “direct and detailed control” of a federal officer in performing the acts relevant to the removed controversy. Otherwise, the FCDO may not remove pursuant to 28 U.S.C. § 1442. This argument just renews the Commonwealth’s earlier rejected position (and one that it conceded in a different, related case) that the FCDO does not act under a federal officer. The Commonwealth has failed to demonstrate that the Court’s prior ruling was erroneous, let alone clearly so.
The Commonwealth’s briefing states that because the FCDO is not a federal officer, “[t]his Court should have applied the standard that removal statutes are to be strictly construed, with all doubts to be resolved in favor of remand.” But in support of that proposition, which runs directly counter to Supreme Court case law,  the Commonwealth cites a case interpreting 28 U.S.C. § 1441, the general removal statute, not the federal officer removal statute at issue here. The Commonwealth cites nothing to suggest that when a non-federal officer acts under a federal officer, the interpretation of § 1442 changes dramatically; the cases merely make the commonsense point that when a private party seeks the protection of the Federal Officer Removal Statute, it needs to establish that for the purposes of the lawsuit at hand it may as well be a federal officer. Characterizing this requirement as a “special burden” does not make removal impossible. And even if a strict construction of § 1442 were appropriate, that would not end the inquiry into whether the FCDO may remove, as the Commonwealth appears to argue it would.
The FCDO has convinced the Court that it acts under federal officers because it conducts federally-funded legal assistance programs and provides a service to indigent defendants that the “Government itself would [otherwise] have had to perform.” The Court will not disturb its prior ruling here.
B. The “Person” Argument
Next, the Commonwealth argues for the first time that the FCDO is not a “person” for federal removal purposes but a “group” or subunit of the Defender Association of Philadelphia.The FCDO responds that the removing party in the case is the ...