                           PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 12-1103


KENNETH ACKERMAN; JAMES ACKERMAN; APRIL ACKERMAN; MARY
ACKERMAN, Individually and as Personal Representative of
the   Estate  of   Thomas   Ackerman;  CHARLES   V.  ADAMS;
CHRISTIANNE M. ADAMS; JOHN ALEXIS; CHARLES J. ARKINS; LULA
M. ARKINS; THOMAS J. ARNO; AMY H. ARNO, Both individually
and as next friends of A.A. and E.A.; ROBERT A. ASKIN;
HELEN V. ASKIN; RICK G. ASTARITA; PATSY L. ASTARITA, Both
individually and as next friends of A. N.A. and G.M.A.,
E.A., Individually; LIONEL J. BANE; LOU ANN BANE; TIMOTHY
BANKS; SUSAN E. BANKS; KRISTIN E. BANKS; DEBRA L. BARE;
LARRY G. BARE; CODY BARE; TONTA FREUND; THOMAS J. BARGER;
KRISTIN C. BARGER, Both individually and as next friends of
K.B., F.B., G.B., N.B.; SEBASTIANO BARRESI; STEVE BAVETT;
ANNA M. BAVETT, As next friend of N.L. and as next friends
of M.B.; GRACE BAYNE; DANIEL BEAUCHEMIN; STELLA E.
BEAUCHEMIN; JOANN K. BELLINGTON, Individually and as
Personal Representative of the Estate of William B.
Bellington; JOHN G.BERGER; DANNY L. BLANKENSHIP; RENEE D.
BLANKENSHIP; MARY BLEVINS; MICHAEL D. BLEVINS; TIMOTHY R.
BLEVINS; JENNIFER M. BLEVINS, Both individually and as next
friends of S.A.B.; JOSHUA R. BLEVINS; HOWARD H. BOND;
RONALD BONNER; RUTH M. BONNER; KENNETH M. BRADLEY; CAROL J.
BRADLEY; BERNADETTE M. BRANNON; RAYMOND E. BREHM, JR.;
CONSTANCE M. BREHM; LOIS J. BRODOWSKI; PAUL J. BROOKS;
MICHELLE D. BROOKS, Both individually and as next friends
of S.D.B.; ZACHARY T. BROOKS, Individually; ALEXANDER M.
BROOKS, Individually; PEEBLE M. BROWNLEE; DONALD C. BURKE;
LISA A. BURKE; JULIA BURKE; MATTHEW BURKE; EDWARD C.
BURTON, JR.; CANDY L. HOBSON-BURTON, Both individually and
as next friends of M.H-B.; MARK A. BURTON, Individually;
CHARLES D. BURTON, Individually; MARCIA BYRNE; PAUL P.
BYRNE; URSULA CAIN-JORDAN; DALE B. JORDAN; JOHN F.
CALLAHAN; DOROTHY H. CALLAHAN; LUKE J. CANFIELD; JANELLE M.
CANFIELD, Both individually and as next friends of S.A.C.;
MARK S. CANHAM; individually and as next friend of M.C.;
JAMES M. CANNELLA; MARCIE G. CANNELLA; CHARLES DAVID CAYCE,
IV; RANDY LOUGHRY, Individually and as next friends of
C.S.L., C.D.L.; KIMBERLEE A. LOUGHRY; RONALD A. CLARK;
CAROL F. CLARK; ALBERT P. CLASS; CAROLYN L. CLASS; MICHAEL
COFIELL; DARLENE S. COFIELL; NANCY L. CONNOLLY; MARY D.
CONWAY; CHARLES H. COON, JR.; DEBORAH A. COON; LAUREN COON;
JORDAN COON; JAMESON COOPER; KATHERINE A. COOPER, Both
individually and as next friends of I.C., E.C., R.C.; JOHN
L. COUNCILMAN; DEBORAH J. COUNCILMAN; COLLEEN CRAVEN; HARRY
F. CRAVEN; ELIZABETH A. D'ANGELO; ROBERT F. D'ANGELO;
CAROLINE DASCHER, individually and as next friends of M.D.,
E.D. and N.D.; KENNETH W. DASCHER, JR.; JESSE L. COLEMAN;
PATRICIA H. COLEMAN; JOHN C. COLT; FRANCES H. COLT; JOHN S.
COMBS; SEA UN COMBS; OWEN CONNOLLY; DONNA J. DAVIDS; JOHN
H. DAVIDS; EMILY GLASER; MARK GLASER; DOUGLAS W. TOWNSLEY,
POA for Helen A. Crowe; JOHN T. DITILLO; RICHARD W. DOYLE;
SHIRLEY A. DOYLE; ALBERT K. DUNSTAN; ALEXANDER A. DUNSTAN;
CELESTE   DUNSTAN;  CHRISTIE  E.   DUNSTAN;  GLORIA  DAVIS,
individually and as next friend of C.D.; WILLIAM F. DAVIS,
individually and as next friend of C.D.; CHRISTOPHER
P.DELVECCHIO; individually and as next friend of J.D.;
PAMELA A. DELVECCHIO, individually and as next fried of
J.D.; JEFFREY DIFATTA, Individually; TERESA L. DIFATTA,
individually and as next friend of S.D.; TIMOTHY DIFATTA,
Individually; VINCENT DIFATTA, individually and as next
friend of S.M.D.; DAVID P. DIGIORGIO, individually and as
next friend of P.A.D. and M.L.G.; MALLORY S. LEGGE-
DIGIORGIO, individually and as next friend of P.A.D. and
M.L.D.; BARBARA DUVALL; JAMES R. EAVERS; PATSY A. EAVERS;
ELAINE H. EHRHARDT; JESSICA CARLOZO; JOSEPH CARLOZO; NICOLE
CARLOZO; LARRY L. ELLIOTT; LAURA ELLIOTT; PAULA A. ELLIOTT;
BEATRICE ELMO; PETER ELMO; ERNESTO ERCOLANO; PHYLLIS
ERCOLANO; CYRUS R. ETEMAD-MOGHADAM, individually and as
next friend of F.R.E-M. and R.A.E-M.; MELODY A. ETEMAD-
MOGHADAM, individually and next friend of F.R.E-M.and
R.A.E-M.; ANASTASIA FAKAS, individually and as next friend
of N.F.; JOHN FAKAS, Individually; WILLIAM J. FAKAS,
individually and next friend of N.F.; JOAN L. FALANGA;
JEROME K. FERRARA, as next friend of K.P.F. and N.J.F.;
KRISTINA FERRARA, as next friend of J.L. and K.H.; CAROL L.
FIALKOWSKI; GEORGE V. FIALKOWSKI; DEMETRIOS FILIPIDIS,
individually and as next friend of G.F.; ROBIN L.
FILIPIDIS, individually and as next friend of G.F.; AILEEN
FLANAGAN, as next friend of G.F.; JOHN S. FLANAGAN, as next
friend of G.F.; DAMION M. FORD; RICHARD A. FORD, III;
KATHLEEN FOX; RONALD L. FOX; SODUS CYNTHIA, individually
and as next friend of G.G. and A.G.; RALPH M FRENCH; GERARD
FREY; JOHN P. FRIES; BARRY G. GABLER, individually and as
next friend of G.G. and A.G.; AUDREY GALLO; ROBERT A.
GALLO; LYNNE M. SCHMIDT-FRIES; JO ANN E. GEARE; CHELSEA

                               2
GEBHARDT; FRED C. GEBHARDT, individually and as Personal
Representative of the Estate of Teri J. Gebhardt; JOCELYN
GEBHARDT, Individually; PETER C. GEORGOPOULOS; SUSAN E.
GEORGOPOULOS; BETTE L. GILL; ROXANNA M. GUINAN; JEFFREY
GUINAN; FALLON GUINAN; WILLIAM GILL; JAMES D. GILPATRICK;
MICHAELE A. GILPATRICK; SCOTT M. GOLLY; JUDITH H. GOULD;
THOMAS H. GOULD; BONNIE L. GRANT; ROBERT F. GRANT; EILEEN
M. GRETES; WILLIAM G. GRETES; MELISSA GRIFFITH; MICHAEL
GRIFFITH; MILTON GRIFFITH; MICHAEL A. GUZMAN, individually
and as next friend of T.G.; STACEY L. GUZMAN, individually
and as next friend of T.G.; SHIRLEY HALL; STEVEN HALL;
THELMA E. HAMEL; MICHAEL HARMON, POA for William B. Harmon
and individually and as next friend of Z.H.; DAWNE JABOBS,
individually and as next friend of Z.H.; PATRICIA O'NEILL,
Personal Representative of the Estate of Elizabeth C.
Gendimenico; MEGAN HEAGY; MICHAEL HEAGY; PATRICIA A. HEAGY;
STEVEN M. HEAGY, JR.; STEVEN M. HEAGY, SR.; LISA R.
HESSELTINE, individually and as next friend of K.H.; MARK
C. HESSELTINE, individually and as next friend of K.H.;
BARBARA A. HOLLER; JIMMY J. HOLLER; LARRY W. HOOPER; PAMELA
E. HOOPER; GWYN HOUSTON, as next friend of D.M.; JANICE A.
HOUSTON, as next friend of D.M.; RITA HOWARTH, as next
friend of P.H.; STEVEN E. HOWARTH, as next friend of P.H.;
DAWNE JABOBS, as next friend of K.H.; DAVID J. HOYT,
individually and as next friend of E.E.H. and L.M.H.;
KETHLEEN H. HOYT, individually and as next friend of E.E.H.
and L.M.H.; VIRGINIA A. HOYT, individually; ALLISON L.
HUNTER; BONNIE L. HUNTER; JAMES D. HUNTER; JEFFREY M.
HUNTER; JAMES D. HUNTER, JR.; SCOTT IANNANTUONO, as next
friend of B.I., J.I. and M.I.; KIMBERLY S. IANNANTUONO, as
next friend of B.I., J.I. and M.I.; CHRISTOPHER JAMISON, as
next friend of C.J., Jr.; MICHELE R. JAMISON, as next
friend of C.J., Jr.; HARRY J. CIMBOLO; ARLENE E. JANUARY;
GLENN K. JANUARY; STEPHEN D. JANUARY; MICHAEL C. JANUS,
individually and as next friend of A.J. and A.J.; TAMMY L.
JANUS, individually and as next friend of A.J. and A.J.;
GREGORY B. JOHNSON, as next friends of R.J. and H.J.;
JENNIFER JOHNSON, as next friends of R.J. and H.J.; BARBARA
A. JUNG; WALTER G. JUNG; HARRIET F. KAHL; HENRY V. KAHL;
TRAVIS BOWEN, individually; ALP A. KAYABASI, individually
and as next friend of C.A.K. and A.D.K.; CHRISTY L.
KAYABASI, individually and as next friend of C.A.K. and
A.D.K.; LOURDES Z. KEISER; RANDALL S. KEISER; COLLEEN
KELLY; JOAN M. KELLY; MICHAEL KELLY; CHRISTINA M. KING,
individually and as next friend of L.K.; JACQUELINE M.
KING; MARK B. KING, individually and as next friend of
L.K.; SUSAN KLUGE, as next friend of R.K. and M.K.; BRENDAN

                               3
C. KLUGE, III, individually; BRENDAN C. KLUGE, JR., as next
friend of R.K. and M.K.; CAROLE A. KLUNK, Individually and
as Personal Representative of the Estate of Joseph A.
Klunk; STERLING LYTLE, Personal Representative of Estate of
Harold J. Kelly; DEVIN PORTZKO; KELLY PROTZKO; RYAN
PROTZKO; LEAH LANGRILL CHILDS; ERIKA KOLAKOWSKI; GLEELA D.
KOLAKOWSKI; JAN E. KOLAKOWSKI; EDWARD D. KOSIBA; JUDITH A.
KOSIBA; KENNETH E. KRAUSZ; MARIE C. KRAUSZ; JOHN F. KRESS;
SHARON J. KRESS; KEVIN J. KRIVACSY, Individually and as
Personal Representative of the Estate of Ruth A. Krivacsy;
JAMES P. KUHLMAN, individually and as next friend of S.A..;
JULIE C. KUHLMAN, individually and as next friend of
S.A.K.; SCOTT C. KUHLMAN, Individually; MARY M. LANGRALL;
CLARKE JR. LANGRALL; JOHN S. LANGRILL; JOSHUA LANGRILL;
LINDA D. LANGRILL; FRANCIS X. LAUER; JUDITH A. LAUER;
ROBERT   S.   LINDSAY,   Individually   and   as   Personal
Representative of the Estate of Sharon V. Lindsay; HOPE
LOOKINGLAND;   MICHAEL   LOOKINGLAND;   CARL   R.   LUPICA,
individually and as next friend of A.C.L. and V.J.L.; DAWN
L. LUPICA, individually and as next friend of A.C.L. and
V.J.L.; ANNABEL E. LUSARDI, individually and as next friend
of M.L., N.L. and C.L.; THOMAS J. LUSARDI, individually and
as next friend of M.L., N.L. and C.L.; ALICIA LYNCH;
MICHAEL J. LYNCH; JOSEPH E. MACATEE; SAMUEL MACATEE; BETH
G. MACMILLAN, individually and as next friend of K.M., J.M.
and J.M.; PAUL MACMILLAN, individually and as next friend
of K.M., J.M. and J.M.; FREDERICK C. MANFRA; MARLENE F.
MANFRA; STEPHANIE J. MANFRA; JOHN W. MARSHALL, individually
and as next friends of O.G-M.; PAULA M. MARSHALL,
individually and as next friends of L.G-M. and M.G-M.;
BRIAN R. MASTERSON; LYNN M. MASTERSON, Both individually
and as next friends of C.M., L.M.; LINDA MAZZIOTT; VINCENT
T. MAZZIOTT; EVELYN J. MCDERMOTT; TYLER M. MCDERMOTT;
KATHLEEN P. MCGRAW, Both individually and as next friends
of J.W.M.; LAUREN A. MCGRAW; ROBERT S. MCGRAW; CARL WAYNE
MELLOTT; JOAN B. MIRARCHI; RALPH J. MIRARCHI; BARBARA L.
MOORE; CHARLES J. MOORE, III; DENNIS J. MORRISON; NINA
MORRISON; JAMES MOULSDALE; PAMELA S. MOULSDALE, Both
individually and as next friends of M.G.M.; ISA MUFAREH;
RUTH E. MUFAREH; KAREN NICKEL, Both individually and as
next friends of G.N.; SCOTT D. NICKEL; SCOTT DENNIS NICKEL,
Personal Representative of the Estate of Celina M. Rossini;
LAURA NOCAR; JAMES M. NORMAN; EMILY C. NOVAK, Both
individually and as next friends of R.S.N., Jr., J.D.N.,
C.R. N.; RONALD S. NOVAK; FRANCES NOWACKI; LOUIS M.
NOWACKI; DAVID O'NEIL; FATEMEH O'NEIL; SEAN RODGERS OWENS;
KATHERINE W. PARRIS; WAYNE H. PARRIS; LANELL W. PATRICK,

                               4
Both individually and as next friends of R.L.P., III;
ROBERT L. PATRICK, JR.; MARGARET PEACH; WILLIAM PEACH;
JESSICA SIMMS; SUSAN C. MARSHALL, Recovable Trust; GERTRUDE
R. PEARSON; HENRY R. PEARSON, JR.; ANTHONY PERFETTI; SHARON
A. PERFETTI, Individually and as next friends of M.P., G.P.
and M.P.; NORMA M. PERRIELLO; PATRICK J. PERRIELLO; THE
PATRICK AND NORMA PERRIELLO LIVING TRUST; NICOLE M. BORYS-
PIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P.,   I.S.P.  and   X.K.P.;   M.    JEORGEA C.  PETERS,
Individually and as next friend of M.V.P.; STEVEN G.
PETERS, Individually; KURT PETERSON, As next friend of
S.P., C.P., R.P. and J.P.; MARY B. PETERSON, As next friend
of S.P., C.P., R.P. and J.P.; JUDY R. PETRALIA; ANTHONY
PETRALIA, JR.; JANE L. PHILPOT; JOHN W. PHILPOT, SR.; LEE
G. PIERCE; CYNTHIA M. PIRACCI; FRANCIS L. PIRACCI; RALPH J.
PIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P., I.S.P. and X.K.P.; ASHLEY PLACK, Individually;
HARRY J. PLACK, individually and as next friend of H.J.P.,
III, E.P. and T.P.; MARY C. PLACK, individually and as next
friend of H.J.P., III, E.P. and T.P.; AVRIL D. PLUNKETT,
individually and as next friend of C.P. and N.P.; MICHAEL
H. PLUNKETT, individually and as next friend of C.P. and
N.P.; ALEXANDRA PONERES; CHRISTOS PONERES; ELIAS PONERES;
EVANGELOS PONERES; DONNA L. POTTER, individually and as
next friend of .B.M.P.; ROBERT K. POTTER, individually and
as next friend of B.M.P.; MARGARET PUSATERI, Individually
and as Personal Representative of the Estate of James
Pusateri; DAVID A. RAINEY; ELIZABETH S. AINEY; LEWIS
RAMAGE; NANCY C. RAMAGE; NACHLAPPAN RAMAN; VIMALA RAMAN;
CAITLIN   RAMSEY,   Individually;    CATHERINE  A.  RAMSEY,
individually and as next friend of A.R.; DAVID K. RAMSEY,
individually and as next friend of A.R.; EMILY RAMSEY,
Individually; JUDY C. RAMSEY; KIMBERLY B. RAMSEY; KRISTIN
D. RAMSEY; TYLER RAMSEY, Individually; WILLIAM J. RAMSEY;
ROMAN E. RATYCH; BETH A. RHUDY, individually and as next
friend of P.R., G.R. and H.R.; PHILLIP RHUDY, individually
and as next friend of P.R., G.R. and H.R.; CHARLES A.
RITCHEY, individually and as next friend of C.A.R. and
C.A.R.; JOELL L. RITCHEY, individually and as next friend
of C.A.R. and C.A.R.; PATRICIA A. RITTER; DAVID P.
STOLLERY; CAITLIN DAIL; SHELLEY DISHAROON, as next friend
of C.D.; ANITA E. HANSEN, Individually; GAYLEN D. ROBERTS;
RONALD H. ROBERTS; JANE A. RODANO; SALVATORE J. RODANO;
ELLEN M. ROMANKO; THOMAS A. ROMANKO; KATHY ROUBAL; CHELSEA
ROUSE; STEPHEN R. ROUSE; GLENN O. RUBEL, individually and
as next friend of M.R. and C.R.; MARIA L. RUBEL,
individually and as next friend of M.R. and C.R.; MICHAEL

                               5
E. RUDASILL, individually and as next friend of C.R.;
BARBARA RUGGIERO; MARK A. RUGGIERO; JANICE MEYER; LINDA C.
RUTH; RICHARD A. RUTH; BERNEATHA J. SAMPLE; DALE H. SAMPLE;
GREGORY H. SAMPLE, individually and as next friend of H.S.,
J.S. and A.S.; HARVEY F. SAMPLE; SCOTT A. SAMPLE; STEVEN D.
SAMPLE; TINA SAMPLE, individually and as next friend of
H.S., J.S. and A.S.; ALEXANDER SAPIENZA; ANGELINA SAPIENZA;
NICHOLAS SAPIENZA; SALVATORE SAPIENZA; AMANDA R. SCHABDACH;
BRUCE J. SCHABDACH; MARY M. SCHABDACH; BETH F. SCHEIR,
individually and as next friend of E.S. and A.S.; SCOTT W.
SCHEIR, individually and as next friend of E.S. and A.S.;
JOHN G. SCHENK; PATRICIA F. SCHENK; FRANK SCHLOSSER; GLORIA
R. SCHLOSSER; ROBERT SCHMID; JOYCELYN B. QUARANTA; MARIA
SCHMIDT, individually and as next friend of A.S. and A.S.;
MICHAEL T. SCHMIDT, individually and as next friend of A.S.
and A.S.; CHRISTINE M. SCHUELER; ROBERT W. SCHUELER, JR.;
CLIFFORD E. SCHULTE; FRANCINE SCOTT, individually and as
next friend of T.S. and A.S.; JEREMY SCOTT, individually
and as next friend of T.S. and A.S.; KATHLEEN D. SCOTT;
PAUL C. SCOTT; GREGORY N. SELTZER; JUDITH A. SELTZER;
ANDREW D. SHAFF; MARISA SHAFF; NATALIE A. SHAFF; WAYNE D.
SHAFF; IRMA C. SHANAHAN; JOSEPH V. SHANAHAN; KENNETH M.
SIMMONS, individually and as next friend of S.M.S.; MICHAEL
R. SIMMONS, individually; VICTORIA B. SIMMONS, individually
and as next friend of S.M.S.; VINCENT B. SIMMONS,
individually; CHARLES B. SINGLETON; VIRGINIA L. SINGLETON;
CAITLIN M. SONN; JONATHON D. SONN; LETITIA A. SONN; LINDA
KAY FISHER, as Personal Representative of the Estate of
Edward S. Stifler and Co-Personal Representative of the
Estate of Katherine L. Stifler; MICHAEL HENLEY; MILISSA
LESTER; THERESE M. SORRENTINO; MARC A. SPATARO; TERRI
SPATARO; ARMAND M. ST. CROIX; BARBARA A. ST. CROIX; HENRY
STANLEY, individually and as next friend of J.S.; JOANNE
STEPHEN, individually and as next friend of B.S. and S.S.;
HARRY C. STEPHEN, JR., individually and as next friend of
B.S. and S.S.; LESTER E. STEWART, individually and as next
friend of A.A.S.; CYNTHIA L. WARNER, as Co-Personal
Representative of the Estate of Katherine L. Stifler;
ALICIA C. WOODMAN, individually and as next friend of
A.A.S.; COLLEEN B. MCDONOUGH; CAROL LEE STORY; RICHARD W.
STORY; CAROL A. SWAM; HENDRIK J. THEUNS; SUSAN L. THEUNS;
DUREL C. THOMAS; PATRICIA L. THOMAS; ELAINE THOMPSON,
individually and as next friend of J.T. and G.T.; JEFFREY
THOMPSON, individually and as next friend of J.T. and G.T.;
WAYNE   PAUL   THOMPSON,   JR.;   CATHERINE  C.   THRAPPAS,
individually and as next friend of A.T. and L.T.; VINCENT
J. THRAPPAS, individually and as next friend of A.T. and

                               6
L.T.; JOSEPH R. TITO; MARY ELLEN TRACEY; ALLEN ROGER
TRACEY, JR.; CAROLYN M. TURNER, individually and as next
friend of G.T.; STEVEN E. TURNER, individually and as next
friend of G.T.; JOSEPH R. TWANMOH; VALERIE H. TWANMOH;
ANDREA L. TYMINSKI; JOSEPH J. TYMINSKI; TINA M. VALMAS,
individually and as next friend of F.G.V.; THEODORE P.
VALMAS, IV, individually and as next friend of F.G.V.;
THEODORE P. VALMAS, V, Individually; HEATHER L. WARNER;
STANLEY B. WARNER; LIDIA J. GUZMAN; DINA N. VENDELIS,
individually and as next friend of J.V., A.V. and C.V.;
MANUEL A. VENDELIS, individually and as next friend of
J.V., A.V. and C.V.; PAT VILLAVICENCIO; ELEANOR M.
VOLLERTHUM; WILLIAM VOLLERTHUM; STEPHEN WAGNER, as next
friend of J.W. and T.W.; TRACI A. WAGNER, as next friend of
J.W. and T.W.; COURTNAY WALKER, individually and as next
friend of G.W. and K.W.; KENNETH D. WALKER, individually
and as next friend of G.W. and K.W.; STEPHEN E. WALTERMYER;
THERESA K. WALTERMYER; JOHN J. WALTERS; PATRICIA J.
WALTERS;   KAREN  WASIELEWSKI;   THEODORE  M.   WASIELEWSKI;
GERALYN WEINBERGER; RICHARD WEINBERGER; MAIJA WENTWORTH;
MICHAEL E. WENTWORTH, JR.; MICHAEL C. WHITACRE; VERNA
BILLINGSLEA WHITE; KELLY STRACKE, individually and as next
friend of M.C.; NOVELLA WIEGAND, individually and as next
friend of K.L.W. and J.W.; TONY M. WIEGAND, individually
and as next friend of K.L.W. and J.R.W.; HOWARD WILLIS,
individually and as next friend of K.W.; MARGARET S.
WINKELMAN, individually and as next friend of K.W.; WILLIAM
R. WINKELMAN, individually and as next friend of K.W.;
CHARLES D. WINKLER; LYNN A. WINKLER; DONNA M. WOLFF; JOHN
P. WOLFF, JR.; MARK D. WOLLENWEBER, individually and as
next friend of M.W., Jr. and M.W.; MARY C. WOLLENWEBER,
individually and as next friend of M.W., Jr. and M.W.;
CYNTHIA WURSTA; JAY P. WURSTA; EILEEN M. YANCONE; VICTOR
YANCONE; CHING CHU YEH; HOMER REN YEH; SHERWOOD YELTON,
JR., individually and as next friend of N.Y. and D.Y.,

              Plaintiffs - Appellees,

         v.

EXXONMOBIL CORPORATION, f/k/a Exxon Corporation, d/b/a
Crossroads Exxon; JOHN R. HICKS, d/b/a Crossroads Exxon,

              Defendants - Appellants.




                               7
Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:11-cv-03442-WDQ)


Argued:   January 30, 2013             Decided:   August 7, 2013


Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed by published opinion.    Chief Judge Traxler wrote the
opinion, in which Judge Gregory concurred. Judge Duncan wrote a
separate opinion concurring in the judgment.


ARGUED: Andrew Gendron, VENABLE, LLP, Baltimore, Maryland, for
Appellants.   Paul D. Raschke, LAW OFFICES OF PETER G. ANGELOS,
Baltimore, Maryland, for Appellees.     ON BRIEF: Michael J. De
Vinne, VENABLE, LLP, Baltimore, Maryland, James F. Sanders, NEAL
& HARWELL, PLC, Nashville, Tennessee, for Appellant Exxon Mobil
Corporation; Paul W. Ishak, April C. Ishak, STARK AND KEENAN,
P.A., Bel Air, Maryland, for Appellant John R. Hicks.         H.
Russell Smouse, Joyce R. Lombardi, LAW OFFICES OF PETER G.
ANGELOS, Baltimore, Maryland, for Appellees.




                               8
TRAXLER, Chief Judge:

       ExxonMobil       Corporation         (“Exxon”)          and     John    R.     Hicks

(together,       “Defendants”)         appeal        a     district        court      order

abstaining from exercising jurisdiction under the Colorado River

doctrine in a case brought against Defendants.                             See Colorado

River Water Conservation Dist. v. United States, 424 U.S. 800

(1976).      Finding no reversible error, we affirm.

                                            I.

       In June 2004, hundreds of residents of Fallston, Maryland,

filed    a    putative      class    action       (the    “Koch”       action)       against

Defendants       in   Maryland      state    court.            The    complaint      alleged

several      state    law   causes    of    action       for    the    contamination     of

their properties by gasoline and the gasoline additive methyl

tertiary-butyl        (“MTBE”)       from    an     Exxon        station      that    Hicks

operated.

       Exxon later removed the case by invoking federal officer

jurisdiction, see 28 U.S.C. § 1442(a), and it was transferred to

the Multidistrict Litigation Panel and assigned to the Southern

District of New York.            See In re MTBE Prods. Liab. Litig., 399

F. Supp. 2d 340, 344 (S.D.N.Y. 2005).                    However, in May 2007, the

United States Court of Appeals for the Second Circuit determined

in an unrelated case that the history of MTBE production and

marketing did not support federal officer removal.                             See In re

MTBE    Prods.    Liab.     Litig.,    488       F.3d    112,    130    (2d   Cir.     2007)

                                             9
(holding      that     the    federal    officer     removal      statute    did     not

support      removal    because      “the    defendants    have     not     met    their

burden of providing ‘candid, specific and positive’ allegations

that they were acting under federal officers when they added

MTBE” (citation omitted)).               Accordingly, Koch was remanded to

the Harford County Circuit Court.

       In February 2010, the state-court judge granted the Koch

Plaintiffs’ request for class certification.                     On June 16, 2011,

however, the judge reconsidered sua sponte his earlier grant of

certification and decertified the class.                   On October 26, 2011,

the state-court judge met with counsel in chambers and asked the

Koch   Plaintiffs       to    file   a   new     action   for    the   former     class

members so that he could consolidate it with the existing one

and thereby adjudicate the claims of the named plaintiffs in

Koch as well as the former class members.                         As a result, on

November 2, 2011, more than 750 former class members filed a new

action in the Harford County Circuit Court.                     The new action (the

“Ackerman” action) alleged the same facts and state law claims

as Koch.      That same day, the Koch Plaintiffs informed the judge

that they planned to amend their complaint.

       On November 18, 2011, the court informed the parties that

it   would    “issue,        at   some   point,    some   sort    of   an    Order   of

Consolidation” that combined the two cases.                     J.A. 136.    Ten days

later, the court told counsel that it had delayed issuing the

                                            10
consolidation       order     only    because        it   was   still     considering

certain questions concerning the logistics of trial.

       On   November    29,     2011,    Defendants        removed    Ackerman     from

state court under authority of the Energy Policy Act of 2005,

Pub L. No. 109-58, § 1503, 119 Stat. 594, 1076 (2005), which

authorizes the removal of MTBE-related claims and actions filed

after August 8, 2005.           On December 1, 2011, the Koch Plaintiffs

then    amended     their     state-court        complaint       to   add    all    the

individual     plaintiffs       named     in     Ackerman.        After     the    Koch

complaint     was     amended    to     add    the    Ackerman    plaintiffs,       the

Defendants did not remove Koch or ask the state court to strike

the amendment.

       The same day the Koch Plaintiffs amended their state-court

complaint, the Ackerman Plaintiffs filed a motion in federal

court seeking to remand that case to state court, arguing that

removal was time-barred and that the Defendants waived their

right to remove by litigating for several years in state court.

Alternatively,        the   Ackerman          Plaintiffs     requested      that    the

district court abstain under the Colorado River doctrine, which

permits     federal    courts,       under     exceptional      circumstances,       to

refrain from exercising jurisdiction in deference to pending,

parallel state proceedings.               See Colorado River, 424 U.S. at

817-18.



                                          11
       The district court denied the remand motion, see Ackerman

v. ExxonMobil Corp., 821 F. Supp. 2d 811, 814-15 (D. Md. 2012),

but    granted       the     motion      to    abstain.         When       concluding      that

abstention was proper, the district focused in large part on the

length of time that the Koch action had been pending in state

court and the progress that had been made on the case in the

state system.         See id. at 820.            As the district court noted, the

Koch case had proceeded in state court for years before the

Ackerman       claims      were    extracted         and    separately       re-filed,      and

extensive discovery efforts had been conducted over the course

of    those    years.        Document         discovery      began    in    2006,    and    the

parties       have   since       conducted       numerous      depositions,         including

depositions of named and proposed class representatives; served

and     responded       to       numerous        interrogatories;           requested       and

produced       hundreds       of    thousands          of    pages    of    documents      and

photographs.           Balancing         these    facts      and     the    other    relevant

factors       against      its     own   duty     to    exercise       jurisdiction,        the

district       court       ultimately         concluded       that     “this     litigation

presents the rare, exceptional circumstances when wise judicial

administration counsels abstention.”                         Id. at 821.            The court

therefore stayed Ackerman pending the resolution of the Koch

proceedings in state court.

       The Defendants now appeal, arguing that the district court

erred    by    granting       the     Plaintiffs’           motion    to    abstain.        The

                                                12
Plaintiffs have not cross-appealed the denial of the motion to

remand. 1

                                                   II.

       “Despite         what     may    appear       to       result     in       a   duplication         of

judicial         resources,         the      rule        is     well    recognized               that    the

pendency         of    an    action         in     the        state    court          is    no     bar    to

proceedings           concerning        the      same     matter        in    the      Federal          court

having jurisdiction.”                  McLaughlin v. United Va. Bank, 955 F.2d

930,       934    (4th       Cir.      1992)        (internal           quotation               marks    and

alteration omitted)).                   “Indeed, with regard to parallel state

and federal proceedings, the Supreme Court has held, over and

over, as have we, that in the usual case the federal courts must

hear the cases that fall within their jurisdiction.”                                              Id.; see

Colorado         River,      424    U.S.      at    817       (emphasizing            the       “virtually

unflagging         obligation          of   the     federal           courts      to       exercise       the

jurisdiction given them”).

       The       duty       to     exercise         jurisdiction,              however,           is      not

absolute;         “federal         courts          may        decline        to       exercise          their

jurisdiction,           in       otherwise         exceptional           circumstances,                 where

denying      a        federal      forum         would        clearly    serve             an    important

countervailing interest.”                    Quackenbush v. Allstate Ins. Co., 517


       1
       Upon learning of the proceedings in this case, the state
court sua sponte stayed all proceedings in Koch pending
resolution of this appeal.


                                                    13
U.S.    706,    716    (1996)    (citation         and   internal      quotation      marks

omitted).             The     Supreme         Court      has   identified           various

circumstances where abstention may be warranted, including cases

where    exercising         federal    jurisdiction       would     interfere       with    a

pending state criminal proceeding, see Younger v. Harris, 401

U.S. 37 (1971), and cases involving complex state administrative

procedures, see Burford v. Sun Oil Co., 319 U.S. 315 (1943).

       At issue in this case is the form of abstention approved by

the    Court    in    Colorado        River    Water     Conservation        District      v.

United States, 424 U.S. 800 (1976) – abstention in favor of

ongoing,        parallel         state        proceedings         in        cases     where

“considerations of wise judicial administration, giving regard

to     conservation         of    judicial         resources      and       comprehensive

disposition of litigation” clearly favor abstention.                           Id. at 817

(alteration and internal quotation marks omitted).

       The     threshold      question        in   a   Colorado    River      inquiry      is

whether the pending state and federal suits are parallel.                               See

Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 463

(4th Cir. 2005).             If parallel suits exist, the district court

must then “carefully balance several factors, with the balance

heavily weighted in favor of the exercise of jurisdiction.”                             Id.

(internal quotation marks omitted).                    The factors relevant to the

inquiry      include    “the      relative         inconvenience       of    the    federal

forum, the relative order of the two suits, the source of law in

                                              14
the case, and the relative progress of the two proceedings.”

Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000).

     Because       Colorado          River        abstention     is    premised     on

consideration of “wise judicial administration” rather than the

“weightier     considerations         of     constitutional      adjudication     and

state-federal       relations”             underpinning        other       abstention

doctrines, Colorado River, 424 U.S. at 818, its application is

proper in a “more limited” range of circumstances, id.                            When

courts consider requests to abstain, the task “is not to find

some substantial reason for the exercise of federal jurisdiction

by the district court; rather, our task is to ascertain whether

there    exist     exceptional            circumstances,       the     clearest    of

justifications,         .    .   .   to      justify    the    surrender    of    that

jurisdiction.”          Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp.,   460     U.S.       1,   25-26     (1983)    (internal    quotation      marks

omitted).

                                           III.

     The Defendants challenge the court’s decision to abstain,

arguing that the district court erred by finding the Koch and

Ackerman actions parallel.                 The Defendants challenge only the

district court’s threshold determination that the Koch action

was parallel to Ackerman.                 They do not challenge the court’s

balancing of the Colorado River factors, and they concede that

if this court concludes that the state and federal actions are

                                             15
parallel, then the district court’s decision to abstain should

be affirmed.      See Brief of Appellants at 42-43 & n.135.

          State and federal actions are parallel “if substantially

the   same     parties   litigate       substantially        the   same   issues     in

different forums.”          Chase Brexton, 411 F.3d at 464 (internal

quotation marks omitted).            The Defendants agree that the Koch

action    as   amended    on    December        1,   2011,   is    parallel    to   the

Ackerman action, given that almost-the-same plaintiffs 2 are suing

the     same   defendants       on   the    same      state-law      claims.        The

Defendants argue, however, that the amendment itself is void,

and that the Ackerman action and the pre-amendment Koch action

are not parallel.        According to the Defendants, the amendment is

void ab initio by operation of 28 U.S.C. 1446(d) and because the

amendment      could     have    been      enjoined      under      the   “expressly

authorized” exception to the Anti-Injunction Act, 28 U.S.C. §

2283.




      2
       All of the plaintiffs in Ackerman are plaintiffs in Koch,
but the seven named plaintiffs in Koch are not plaintiffs in
Ackerman. Because the claims of all plaintiffs can be resolved
in the state proceeding, the fact that the federal action
includes seven fewer plaintiffs than the state action does not
prevent the actions from being parallel for Colorado River
purposes.   See Chase Brexton Health Servs., Inc. v. Maryland,
411 F.3d 457, 464 (4th Cir. 2005) (concluding that actions were
not parallel where, inter alia, five federal plaintiffs were not
parties to the underlying state proceedings and noting that “the
parties involved [must] be almost identical”).


                                           16
                                        A.

       Under § 1446(d), removing defendants must promptly provide

written notice of the removal to opposing parties and to the

state court.          See 28 U.S.C. § 1446(d).            The statute specifies

that removal is effected by the filing of the notice of removal

with   the     state-court    clerk,   at    which      point    “the   State    court

shall proceed no further unless and until the case is remanded.”

Id. (emphasis added).          Defendants argue that under § 1446(d),

any    post-removal      action   taken      by   the    state     court   is    void.

Although the Defendants have not sought an order invalidating

the amendment from the state court or the district court, they

argue that, even absent any injunction, the amendment to the

Koch complaint was void ab initio because “[t]he § 1446(d) bar

is self-acting.”        Brief of Appellants at 32.

       Because § 1446(d) explicitly states that “the State court

shall proceed no further” once removal is effected, 28 U.S.C. §

1446(d), we agree with the Defendants that the statute deprives

the state court of further jurisdiction over the removed case

and that any post-removal actions taken by the state court in

the removed case action are void ab initio.                     See South Carolina

v.    Moore,    447    F.2d   1067,    1072-73     (4th     Cir.    1971);      accord

Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st

Cir. 1983) (“[A]ny action taken by the Puerto Rico court after



                                        17
removal was effected was a nullity anyway, with or without the

order against further proceedings.”).

     Section    1446(d),        however,    speaks    only   in   terms      of   the

removed case.       See 28 U.S.C. § 1446(d) (“Promptly after the

filing of such notice of removal of a civil action . . . .”

(emphasis   added));      id.    (“[T]he    State    court   shall     proceed     no

further    unless   and    until     the    case     is   remanded.”    (emphasis

added)).    Because the statute focuses only on the removed case,

it deprives the state court of jurisdiction and restricts the

state court’s actions only as to the removed case.                     See Kansas

Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc. (“KPERS”),

77 F.3d 1063, 1069 (8th Cir. 1996) (“[T]he removal statute only

commands the state court to stay the case that was actually

removed . . . .” (emphasis added)); Lou v. Belzberg, 834 F.2d

730, 740 (9th Cir. 1987) (“[A] federal court may enjoin the

continued prosecution of the same case in state court after its

removal.” (emphasis added)).          There simply is no language in the

statute that reasonably can be interpreted as constraining the

state court’s authority over any case other than the case that

was removed to federal court.               Section 1446(d) may be self-

acting, in that improper post-removal actions are void whether

or not a court has so declared, see Polyplastics, 713 F.2d at

880, but it acts only within its reach.                    Because § 1446(d)’s

prohibition    against     post-removal      proceedings      does     not   extend

                                       18
beyond the removed case, § 1446(d) does not render void the

December 1 amendment of the Koch action.

                                         B.

       Contrary to the Defendants’ argument, our conclusion that §

1446(d) does not invalidate the amendment of the Koch complaint

does not change when the Anti-Injunction Act is added to the

mix.     Before addressing the merits of this argument, we will

first sketch out the basics of the Anti-Injunction Act and the

district court’s approach to the issue.

                                       (1)

       The Anti-Injunction Act provides that “[a] court of the

United States may not grant an injunction to stay proceedings in

a State court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.”           28 U.S.C. § 2283.         The Act “is an

absolute prohibition against enjoining state court proceedings,

unless    the     injunction     falls        within   one   of     [the]   three

specifically defined exceptions.”               Atlantic Coast Line R.R. Co.

v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286 (1970).

Because    the     Act    reflects     and      respects     “the    fundamental

constitutional independence of the States and their courts, the

exceptions       should    not    be     enlarged      by    loose     statutory

construction.”      Id. at 287.



                                         19
     At issue in this case is the Act’s “expressly authorized”

exception.       A federal statute expressly authorizes an injunction

of state-court proceedings when the statute creates “a specific

and uniquely federal right or remedy, enforceable in a federal

court of equity, that could be frustrated if the federal court

were not empowered to enjoin a state court proceeding.”                         Mitchum

v. Foster, 407 U.S. 225, 237 (1972).                       Section 1446(d), with its

“proceed no further” directive, has generally been understood to

expressly authorize injunctions of state courts ignoring that

directive.       See id. at 234 & n.12; Fulford v. Transport Servs.

Co., 412 F.3d 609, 612 (5th Cir. 2005).

     Although this court has yet to address the issue, other

courts    have      concluded         that,        under    certain    circumstances,

§ 1446(d) also authorizes injunctions against separate “copycat”

actions – actions involving essentially the same parties and

claims    that     are    filed   in    state       court    after    removal   of    the

original action.          See Quackenbush v. Allstate Ins. Co., 121 F.3d

1372, 1378 (9th Cir. 1997); KPERS, 77 F.3d 1070-71; Frith v.

Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975);

see also Davis Int’l, LLC v. New Start Group Corp., 488 F.3d

597, 605 (3d Cir. 2007) (“Courts considering the question have

unanimously        held   that    a     plaintiff’s         fraudulent      attempt    to

subvert      the     removal      statute            implicates       the    ‘expressly



                                              20
authorized’ exception to the Anti-Injunction Act and may warrant

the granting of an anti-suit injunction.”).

       As the Ninth Circuit has observed, “[i]t would be of little

value to enjoin continuance of a state case after removal and

then permit the refiling of essentially the same suit.”                                            Lou,

834 F.2d at 741.           Accordingly, these courts have held that §

1446(d)      authorizes        the        issuance       of     an      injunction            against

separate,     state-court           copycat       proceedings           commenced         for       the

purpose of subverting federal jurisdiction over a removed case.

See,    e.g.,     KPERS,       77      F.3d     at      1069     (“[A]fter          removal         the

plaintiff     cannot      file      essentially          the    same     case       in    a    second

state action to subvert federal jurisdiction.”); Lou, 834 F.2d

at 741 (“[W]here a second state court suit is fraudulently filed

in an attempt to subvert the removal of a prior case, a federal

court may enter an injunction.”).

       The    district         court       here      began       its     analysis             of   the

abstention       with    the        question       of        whether     the    actions            were

parallel,        which     turned          on     whether        the         Koch        Plaintiffs

successfully amended their complaint or whether the amendment

was void ab initio.            See Ackerman, 821 F. Supp. 2d at 816.                               When

considering the validity of the amendment, the district court

noted     that    it     had     not      issued        an     injunction       of       the       Koch

proceedings       and    that       the    Defendants          had     not    even       sought      an

injunction.       See id. at 817.               As to whether an injunction would

                                                21
be     permissible   under    the   Anti-Injunction    Act,    the   court

concluded, consistent with the line of cases discussed above,

that    the   “expressly     authorized”   exception   would   permit    an

injunction in cases where the plaintiff “fraudulently files a

second state lawsuit to undermine the removal statutes.”                Id.

at 817 (internal quotation marks omitted).         The court indicated,

however, that the exception would not apply to the facts of this

case:

            [T]he Defendants have not sought, nor has this
       Court granted, an injunction of the Koch proceedings.
       Thus, nothing prohibits the state court from amending
       the Koch complaint to include the Plaintiffs here.
       Although the Plaintiffs concede that Koch was amended
       after the removal of this action “to blunt” the
       perceived “dilatory tactics of the Defendants,” the
       amendment was not an attempt to fraudulently undermine
       the removal statutes.   The Plaintiffs told the state
       court and the Defendants weeks before removal that
       Koch would be amended. Koch was not amended to obtain
       a favorable decision on an issue this Court has
       already decided, nor have the Plaintiffs misled the
       Court about the existence and amendment of Koch.
       Absent fraud, a secondary state action should not be
       enjoined.

            The primary purposes of amending Koch were not to
       fraudulently defeat this Court’s jurisdiction, but to
       comply with the state court’s instructions and to ease
       administration   of    the   litigation  after   class
       decertification.   The parties had already extensively
       litigated the matter in state court. . . . After
       decertification, the state court asked the Koch
       plaintiffs to amend Koch and file new actions for the
       former class members, which the court planned to
       consolidate after determining the budget, location,
       and other logistics of trial.




                                     22
Id. at 817-18 (citations omitted).                    The district court further

explained that, even if an injunction were permissible under the

Anti-Injunction Act, it would not exercise its discretion to

enjoin     proceedings     in    Koch:     “[E]ven          if    an   injunction       were

permissible, the Court would not be bound to issue it.                           In light

of the unusual circumstances of this litigation, the Court finds

that enjoining the Koch amendment would undermine the important

goal of preserving an effective dual system of federal and state

courts.”      Id.   at    818    (citation       and      internal     quotation       marks

omitted)).

                                          (2)

     The     Defendants     contend      that       the     amendment     of    the    Koch

complaint     was   a    clear   attempt       by     the      Plaintiffs   to    subvert

removal jurisdiction and that an injunction barring proceedings

on   the    amended      complaint       would      be      permissible        under    the

“expressly     authorized”       exception       to      the     Anti-Injunction       Act.

And in the Defendants’ view, the fact that the amendment was

enjoinable means that the amendment is void:

     [I]f a state-court proceeding is prohibited by §
     1446(d), that proceeding is automatically null [and]
     absolutely void, . . .       whether enjoined or not.
     Thus, if a district court has the power to enjoin a
     nearly-but-not-quite-identical action filed in state
     court with intent to subvert the district court’s
     jurisdiction over a previously removed action . . .
     then   that  second action,    even  though  captioned
     differently and assigned a different docket number,
     must also be null [and] void . . . .


                                          23
Reply       Brief    at     6    (emphasis          added;    footnotes        and   internal

quotation marks omitted).

       We disagree.              As discussed above, § 1446(d) invalidates

post-removal actions taken in state court in the removed case,

but    it    does    not        reach   (and    therefore       does     not     invalidate)

actions taken in cases other than the removed case.                                   Section

1446(d) may serve as the statutory authority for an injunction

against a separately filed copycat action, see, e.g., KPERS, 77

F.3d    at    1069,       but     serving      as    the     source    of     authority     for

injunctions that might be issued from time to time is not the

same as invalidating from the get-go every action that might

someday be enjoined.

       When an exception to the Anti-Injunction Act is present, a

district court may issue an injunction, but it is not required

to do so.       Because “principles of comity, federalism, and equity

always restrain federal courts’ ability to enjoin state court

proceedings,” In re Diet Drugs Prods. Liab. Litig., 369 F.3d

293,    306     (3d       Cir.     2004),       whether       to      enjoin     state-court

proceedings         is    always    discretionary.             See    Chick    Kam   Choo    v.

Exxon Corp., 486 U.S. 140, 151 (1988) (“Of course, the fact that

an injunction may issue under the Anti-Injunction Act does not

mean that it must issue.                 On remand the District Court should

decide whether it is appropriate to enter an injunction.”).                                 As

discussed      above,       §    1446(d)    does       not    render    void     state-court

                                                24
actions taken in non-removed cases, and those actions may not be

treated as if they were void simply because a district court

might   have   elected   to    exercise     its   discretion    to    enjoin   the

state proceedings.

                                      C.

     For the reasons explained above, we reject the Defendants’

claim that the amendment of the Koch complaint was void, whether

by operation of § 1446(d) alone or by operation of § 1446(d) in

conjunction    with   the     “expressly    authorized”   exception      to     the

Anti-Injunction Act.

     The   determination       that   the    Koch   amendment    is    not     void

effectively ends the inquiry into parallelism.                  The Defendants

did not ask the state court or the district court to strike the

amendment or to enjoin the Plaintiffs from proceeding on the

amended Koch complaint, nor do they argue on appeal that the

district court should have enjoined the Koch proceedings sua

sponte.    Because the amendment is not void under § 1446(d), we

therefore have no basis to disregard the otherwise valid state-

court amendment of the Koch complaint.              Accordingly, because the

action now pending in state court is the Koch action as amended

to include the Ackerman plaintiffs, the district court properly

concluded that the actions are parallel for purposes of Colorado




                                      25
River abstention. 3         See Chase Brexton, 411 F.3d at 464                     (“Suits

are   parallel       if     substantially        the    same     parties          litigate

substantially the same issues in different forums.” (internal

quotation marks omitted)).

      And the determination that the Koch and Ackerman actions

are   parallel     effectively       ends     our    inquiry     into       the   court’s

decision     to    abstain.         As    previously     noted,       the    Defendants

explicitly do not challenge the district court’s balancing of

the   Colorado      River     factors      and      concede    that     if    the      Koch

amendment is not void, “the district court’s decision to abstain

and stay should be upheld.”              Brief of Appellant at 43 n.135.

                                           IV.

      In the course of arguing that the amendment of the Koch

complaint was void, the Defendants identify certain errors in

the district court’s analysis of the Anti-Injunction Act.                              They

argue that the district court improperly required a tort-like

intent to deceive, when all that is required to enjoin a copycat

action is the intent to subvert removal jurisdiction, which the

Defendants        contend     was        conclusively     established             by    the

Plaintiffs’       concession     before      the      district    court       that      the


      3
        The Defendants understandably do not argue that the
temporary stay by the state court of proceedings in Koch pending
resolution of this appeal prevents Koch from being parallel to
Ackerman.



                                            26
amendment was intended to “blunt” the effect of the removal.

The    Defendants      thus       contend    that      the   court     clearly       erred    by

finding as a factual matter that the Plaintiffs had no intent to

subvert jurisdiction and erred by concluding that the “expressly

authorized” exception was inapplicable.

       As the Defendants argue, the Plaintiffs’ conceded intent to

blunt    the      removal       might    well   be     sufficient      to     establish      the

intent       to     subvert      jurisdiction          necessary       to     authorize       an

injunction under the Anti-Injunction Act.                         See, e.g., KPERS, 77

F.3d    at    1069-70       &    n.5    (explaining       that    in    federal       question

cases, a plaintiff attempts to subvert federal jurisdiction when

he seeks to have the claims in the removed case resolved in

state court rather than federal court).

       The issue in this case, however, is a bit more complicated

than the Defendants would like it to be.                         As the district court

noted, see Ackerman, 821 F. Supp. 2d at 818, there were some

“unusual          circumstances”         that    opened         the    door     to     federal

involvement in this case: a state-court action not requested by

the Koch Plaintiffs (the sua sponte decertification of the class

action) and the Plaintiffs’ compliance with the state court’s

request that it file the separate Ackerman complaint.                                       These

facts,       of    course,       would    not        preclude    a     finding       that    the

Plaintiffs intended to subvert jurisdiction.                           Nonetheless, even

if the court’s determination that the Plaintiffs did not intend

                                                27
to    subvert    jurisdiction        was   clearly       erroneous,     the      district

court   clearly     had    the     discretion      to    consider     these      “unusual

circumstances” when determining the advisability of issuing an

injunction permitted under the Anti-Injunction Act.                         Because the

Anti-Injunction Act’s “core message is one of respect for state

courts,” Smith v. Bayer Corp., 131 S. Ct. 2368, 2375 (2011), we

believe it was within the district court’s discretion to decide

that the unusual circumstances behind the federal involvement in

the matter would counsel against the issuance of an injunction.

See    id.   (“[A]ny      doubts     as    to    the     propriety    of     a    federal

injunction against state court proceedings should be resolved in

favor   of   permitting        the   state      courts    to     proceed.”       (internal

quotation marks omitted)).

       In the end, however, we do not think it necessary in this

case to decide whether the court clearly erred when concluding

that the Plaintiffs did not intend to subvert jurisdiction or

otherwise       erred   when     analyzing      the     scope    of   the    “expressly

authorized” exception to the Anti-Injunction Act, because the

asserted     errors     in     the    district         court’s     analysis       of   the

exception played no role in the district court’s resolution of

the issues raised on appeal.

       Although the district court indicated that the “expressly

authorized” exception would not apply to this case, the court’s

analysis did not stop there.               The court also explained that even

                                           28
if an injunction were permissible under the Anti-Injunction Act,

it would decline to issue one.              See Ackerman, 821 F. Supp. 2d at

818 (“In light of the unusual circumstances of this litigation,

the    Court   finds    that    enjoining       the    Koch     amendment       would

undermine the important goal of preserving an effective dual

system of federal and state courts.”                 (internal quotation marks

omitted)).       The    district      court’s    resolution       of    the    Anti-

Injunction     Act   question   therefore       turned    not    on    the    court’s

arguably incorrect understanding of the “expressly authorized”

exception,      but     on      the        court’s       unchallenged-on-appeal

determination that an injunction would not be advisable even if

permissible.

       Moreover, the errors identified by the Defendants have no

bearing on the only abstention issue the Defendants raise on

appeal – whether the Koch amendment was void, such that the

state and federal actions were not parallel.                   Even if we assume

that   §   1446(d)    authorizes      an    injunction    of    separate      actions

filed for the purpose of subverting federal jurisdiction and

that the amendment here was indisputably an attempt to subvert

federal jurisdiction, those assumptions only establish that an

injunction would be permissible under the “expressly authorized”

exception to the Anti-Injunction Act.                 But as we have already

explained, the abstract enjoinability of the Koch amendment does

not establish that the amendment was void.

                                           29
     At bottom, this case is about abstention, not the Anti-

Injunction Act.         The Defendants did not ask the district court

to enjoin the Koch proceedings, do not argue on appeal that the

district court erred by not issuing an injunction sua sponte,

and do not ask us to issue an injunction of the state-court

proceedings.        The Anti-Injunction Act came into the case only

indirectly, when the Defendants opposed Plaintiffs’ abstention

request     by    arguing      that   the        amendment   was   void,   and   the

Defendants pursue the issue on appeal only in the context of

their claim that the enjoinability of the Koch amendment renders

it void.         Under these circumstances, we believe it prudent to

leave the questions about the precise scope and applicability of

the “expressly authorized” exception for another case where the

issues are properly presented.

                                            V.

     To summarize, we hold that 28 U.S.C. § 1446(d) affects only

the jurisdiction of the state court only with regard to the case

actually    removed      to    federal      court.       Because    Koch   was   not

removed, the state court maintained jurisdiction over it, and

the amendment to the complaint in that case was not void ab

initio.     That the district court might have had authority to

issue an injunction striking the amendment does not make the

amendment        void   when    the    district        court   never   issued    an

injunction.       The district court thus was correct to consider the

                                            30
amended   Koch   complaint     in   determining       whether   the    Koch   and

Ackerman actions were parallel, and the court did not abuse its

discretion    when   concluding       that      exceptional     circumstances

warranted    abstention   in    favor      of   the   pending   Koch    action.

Accordingly, for the foregoing reasons, we hereby affirm the

district court’s order.

                                                                       AFFIRMED




                                      31
DUNCAN, Circuit Judge, concurring in the judgment:

        I admire the majority’s deft circumnavigation of serious

errors of fact and law in pursuit of an ultimately defensible

result.       I write separately because the district court’s errors

were so many and of such significance that I cannot share the

majority’s       confidence          that       they    did    not     contribute        to     that

result.        More importantly, I believe that leaving those errors

not    only     unaddressed         but        unacknowledged        will    allow,       if    not

encourage, their repetition.

       My fundamental concern with the majority’s opinion is that

in its magnanimity to a profoundly flawed disposition below, it

omits    critical          facts    at    the     expense      of    our    well-established

obligation       to    exercise          the    jurisdiction         that    we       have.     See

Colorado River Water Conservation Dist. v. United States, 424

U.S.    800,    813,       817     (1976)      (federal       courts     have     a    “virtually

unflagging          obligation”            to        exercise        jurisdiction             absent

“exceptional          circumstances”).                  For     example,        it      fails     to

recognize the significance of the Energy Policy Act of 2005 in

its analysis; it cites the Act only once, and even then merely

in passing in explaining the procedural history of the case.

See Majority Op. at 11.

       By     way     of     further        example,       I     fully      agree       with    the

majority’s       conclusion         that       the     removal      statute,      28    U.S.C.     §

1446(d), is not self-acting, and that the Koch amendment was not

                                                  32
void ab initio.         See Majority Op. at 17-18.                However, I feel

compelled to point out what the majority does not: the futility

of Defendants’ seeking an injunction to bar the amendment, when

the district court erroneously believed it lacked authority to

grant one.     Indeed, Defendants had no reason to request such an

injunction in advance of Plaintiffs’ motion, and instead had

every reason to believe there was no need to seek one because

the state court action had been stayed.

     I concur in the judgment because of my respect both for my

colleagues and for our deferential standard of review.                    However,

I set forth the district court’s errors in some detail here

because I believe it to be incumbent upon us to provide such

guidance     and   in   the    hope     that      it   will      discourage     their

reoccurrence.



                                        I.

                               A. Error of Fact

     I believe the district court’s finding of fact regarding

the propriety of Plaintiffs’ amendment of the Koch complaint is

clearly erroneous.           The district court concluded that “[t]he

primary    purposes     of   amending      Koch     were   not    to   fraudulently

defeat this Court’s jurisdiction, but to comply with the state

court’s    instructions        and    to     ease      administration      of    the

litigation after class decertification.”                   821 F. Supp. 2d 811,

                                        33
818 (D. Md. 2012).       However, Plaintiffs conceded all that need

be shown to establish an improper intent by stating that they

filed the amendment “to blunt the perceived dilatory tactics of

the Defendants,”--i.e., to subvert Defendants’ proper removal of

the Ackerman action.         See id.   Regardless of any other asserted

purposes, Plaintiffs have acknowledged that they acted with the

intent to defeat federal jurisdiction over their claims.                This

error is particularly significant because of the stringency with

which abstention analysis is to be applied.

                              B. Errors of Law

                                       1.

     I fully understand the majority’s preference for avoiding

dealing with the district court’s view of its authority (or lack

thereof) under the Anti-Injunction Act, 28 U.S.C. § 2283 (the

“AIA”).     I am far less sanguine that the court’s confusion in

that regard did not contribute to its ultimate conclusion.                I

therefore feel the issue requires consideration.

     To start, nothing in the text of the AIA requires that a

defendant     request   an    injunction    issued   under   one   of   its

exceptions.     Rather, the AIA states simply: “A court of the

United States may not grant an injunction to stay proceedings in

a State court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.”         28 U.S.C. § 2283 (emphasis added).

                                       34
The plain meaning of this language is that one circumstance in

which the district court may enjoin a state court proceeding

arises when the court has been “expressly authorized” to do so

by Congress, 1 which generally has nothing to do with whether or

not a party explicitly sought the injunction.

     As the Supreme Court has explained, the AIA “is a necessary

concomitant of the Framers’ decision to authorize, and Congress’

decision   to   implement,   a   dual      system      of    federal     and   state

courts.    It represents Congress’ considered judgment as to how

to balance the tensions inherent in such a system.”                      Chick Kam

Choo v. Exxon Corp., 486 U.S. 140, 146 (1988).                  It would seem to

me inconsistent with this careful scheme to render a federal

court’s    authority   to    enjoin        a   state        proceeding    entirely

dependent on strategic decisions made by the parties, rather

     1
       As the majority explains, it is well established that the
removal statute provides the necessary express authorization in
certain circumstances.      See Majority Op. at 19-20.        By
establishing that removal is effected by a defendant’s filing a
notice of removal in state court, and ordering that “the State
court shall proceed no further unless and until the case is
remanded,” 28 U.S.C. § 1446(d) expressly authorizes a federal
court to enjoin the continued prosecution of the same case in
state court after it is removed.     See Mitchum v. Foster, 407
U.S. 225, 234 & n.12 (1972); Vendo Co. v. Lektro-Vend Corp., 433
U.S. 623, 640 (1977) (plurality opinion).     The majority also
acknowledges, as did the district court (ostensibly), that many
courts have extended this express authorization to “copycat”
actions   filed  in   state   court after   removal,  permitting
injunctions to prevent a plaintiff from filing exactly the same
case in state court after it is removed, particularly where the
latter is filed with the intent to subvert federal jurisdiction.
See Majority Op. at 20-21.


                                      35
than on the “considered judgment” of Congress embodied in the

AIA.

       Furthermore, interpreting the AIA in other contexts, the

Supreme Court has made clear that, where it is not barred by the

Act,       a   federal    court’s      authority     to       enjoin     a    state      court

proceeding is bounded only by the court’s sound discretion, not

by the precise procedural mechanism employed by a party to the

action.           See   McFarland      v.   Scott,   512       U.S.    849,        858   (1994)

(affirming the district court’s discretion to issue a stay of

execution under the AIA’s “expressly authorized” exception even

where       the    defendant     had    not    filed      a    formal     habeas         corpus

petition,         because   28    U.S.C.      §    2251       provides       the    requisite

express authorization). 2           Accordingly, unlike the district court,

I would not find Defendants’ failure to explicitly request an




       2
       Further support for viewing the district court’s authority
to enjoin a state proceeding, where the court is “expressly
authorized,” as inherent and independent rather than subservient
to a party’s request, may be found in the All-Writs Act, which
affirmatively grants federal courts license to “issue all writs
necessary   or   appropriate   in   aid   of   their   respective
jurisdictions and agreeable to the usages and principles of
law.”    28 U.S.C. § 1651(a).     In this context, courts have
recognized that injunctions exist outside of the traditional
injunction framework governed by Fed. R. Civ. P. 65. See In re
Baldwin-United Corp., 770 F.2d 328, 338-39 (2d Cir. 1985)
(contrasting the concerns motivating ordinary injunctions with
those underlying injunctions issued under the All-Writs Act “to
prevent . . . parties from thwarting the court’s ability to
reach and resolve the merits of the federal suit before it”).


                                              36
injunction in opposing Plaintiffs’ motion determinative, or even

persuasive, on the facts of this case.

      The district court went on to say that even if it had the

authority to grant an injunction, it would not have done so.

Here, the district court’s analysis, although perhaps ultimately

defensible   in      its    conclusion,     is    troubling    because     it

misconstrues the removal statute and ignores the policy goals

behind that statute.

                                     2.

      This brings me to a second legal error apparent in the

district court’s reasoning.         As part of its misreading of the

removal   statute,    the   district      court   concluded,   in   my   view

erroneously, that the Ackerman claims as amended to the Koch

action would not be removable.         This was apparently relevant to

the district court’s analysis because it allowed the court to

distinguish the Koch amendment from what it “may appear to be,”

that is, “‘an end run around 28 U.S.C. § 1446(d),’” 821 F. Supp.

2d at 818 (citation omitted), and to downplay the import of

federal jurisdiction over the properly removed Ackerman action.

The court thus attributed this case’s presence in federal court

to bad luck, or perhaps bad strategy: “Had the Plaintiffs merely

amended   Koch--rather      than   filing    this   separate    action--the

Defendants would not have been able to remove these claims.”

Id.

                                     37
       The       district   court’s   statements    do   not   comport   with   my

reading of the Energy Policy Act of 2005, which the majority

does not address at all.              As it relates to MTBE cases, the Act

memorializes certain Congressional findings regarding the role

of the Clean Air Act Amendments of 1990 in causing the fuel

industry to make investments in MTBE production capacity and

delivery of MTBE-containing gasoline to consumers.                  See Pub. L.

No. 109-58, § 1502, 119 Stat. 594.                The Act also allows for the

removal of MTBE-related “claims and legal actions filed after

the date of enactment.”               Id. § 1503 (emphasis added). 3        This

right of removal must apply to the Ackerman claims because they

are MTBE-related claims filed after August 8, 2005, which is all

that § 1503 requires.            If Congress intended to provide removal

only       for   independent   legal    actions    filed   after   the   date   of

enactment, it would not have included the word “claims” in the

text of the Act, which is otherwise redundant given that any

claim that is removable must be contained within some sort of

legal action.



       3
       Initial drafts also included “a safe harbor provision
retroactively limiting or even eliminating liability for MTBE
producers and distributors.”    In re MTBE Prods. Liab. Litig.,
674 F. Supp. 2d 494, 498 (S.D.N.Y. 2009) (citing 149 Cong. Rec.
S15212 (daily ed. Nov. 20, 2003) (statement of Sen. Diane
Feinstein)).   Following objections from members of Congress, a
compromise was attained whereby the safe harbor was replaced by
§ 1503’s right of removal. Id.


                                          38
      As   soon     as    the     class    of    property    owners       in    Koch     was

decertified,      all     of     the   non-named    class     members--the            future

Ackerman      Plaintiffs--were             effectively       severed           from      any

involvement       in      that     action.         Whether        these     individuals

subsequently chose to file their claims as an amendment to the

Koch action, as more than 750 individual actions, or as one

separate action later consolidated with Koch, does not change

the fact that these were newly filed claims.

                                            3.

      Though the limitations period for the Ackerman Plaintiffs’

claims was tolled by the pendency of the putative class action

in Koch, their claims do not relate back to the original Koch

filing.    On this point the district court erred yet again.                             See

821 F. Supp. 2d at 818-19.                The Ackerman Plaintiffs’ claims are

new   causes      of     action        seeking    distinct        damages      based     on

individualized harm.             See Grand-Pierre v. Montgomery Cnty., 627

A.2d 550, 553-54 (Md. Ct. Spec. App. 1993) (“When amendment is

sought to add a new party to the proceedings . . . any cause of

action as to that party is, of course, a new action. . . .

Unless the additional plaintiff[s] will merely be sharing in the

damage     award,        and     not    ‘pyramiding’        the     original          amount

requested, relation back will not be applied[.]”).                             Given that

the new claims were first filed as an independent legal action

in Ackerman, it is difficult to see how the district court could

                                            39
justify its finding that they merely sought to share in the Koch

Plaintiffs’ damages request.

      Indeed, pursuant to 28 U.S.C. § 1446(b)(3), the thirty-day

removal window is revived for circumstances such as these, in

which it may be ascertained from a party’s filing that a case

has become newly removable.                     Thus, the plain language of both

the Energy Policy Act of 2005 and the removal statute bolsters

the   conclusion          that      the   post-amendment        Koch   action       would   be

removable.              This   in    turn   supports      the    exercise      of    federal

jurisdiction over the Ackerman Plaintiffs’ claims.

      Consequently,                 contrary         to   the      district          court’s

determination, we cannot blame the creation of this procedural

quagmire on Plaintiffs’ accidental misstep, nor some instruction

of    the    state        court,      nor   Defendants’        failure    to    explicitly

request          an     injunction.         Rather,       responsibility        lies     with

Plaintiffs’            deliberate      manipulation       of    federal    jurisdiction,

which       we        ultimately      permit,     but     unfortunately        without      an

explanation of the serious concerns implicated.



                                                II.

      The removal process utilized by Defendants on the Ackerman

Plaintiffs’ claims is consistent with the principles of comity

embodied in the AIA, as well as the preference inherent in the

Energy Policy Act of 2005 to allow defendants to litigate MTBE

                                                40
claims filed after August 8, 2005 in federal court if they so

choose.    We have explained that this right of removal resulted

from   extensive     Congressional           negotiations,         and    represents        a

concerted effort to provide some benefit to MTBE defendants in

recognition     of    Congress’s           prior    role      in   facilitating           the

widespread use of MTBE as a gasoline additive.

       Unlike the majority, I am unable to conclude that these

errors in the district court’s analysis played no role in its

decision   to   abstain,       or     in    “the     issues    raised        on    appeal.”

Majority Op. at 28.            At the very least, if--as the majority

asserts--“this       is    a   case    about        abstention,        not    the       Anti-

Injunction Act,” Majority Op. at 29, then abstention ought to be

analyzed    thoroughly         and     with        due   consideration            for     the

presumptions that guide it.                After such an analysis, I believe

the district court would have exercised its discretion soundly

by declining to abstain from exercise of federal jurisdiction.

       Nonetheless, as the majority recognizes, the issuance of an

anti-suit injunction is highly discretionary.                            See Chick Kam

Choo, 486 U.S. at 151 (“Of course, the fact that an injunction

may issue under the Anti-Injunction Act does not mean that it

must issue.”).        I concur in the result here because I do not

feel    comfortable       ordering     the       district      court     to       grant   an

injunction, despite its flawed analysis.                    Cf. Bryan v. BellSouth

Commc’ns, Inc., 492 F.3d 231, 242 (4th Cir. 2007) (“Because the

                                            41
decision     to   enjoin   a    state   court    proceeding      .   .    .    is    a

discretionary one, our disagreement with the manner in which the

district     court   approached     the      question   .   .    .   given         the

particular circumstances of this case, [does not] prevent[] us

from affirming the court’s decision[.]”) (citation omitted).

     Given    the    district    court’s     decision   not     to   enjoin        the

amendment in state court, I cannot conclude that its decision to

abstain    constitutes     an   abuse   of   discretion.        Because       of   the

narrow scope of our appellate review, I would affirm on the

narrowest possible grounds, and join only in the judgment of the

majority.




                                        42
