PS-035                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4106
                                       ___________

                                STEPHEN G. CONKLIN,
                                                 Appellant

                                             v.

                                  YVETTE KANE
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-13-cv-03058)
                       District Judge: Honorable Juan R. Sánchez
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 7, 2015
               Before: FISHER, SHWARTZ and COWEN, Circuit Judges

                            (Opinion filed: December 8, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Stephen G. Conklin appeals from the order of the District Court denying his

motion for sanctions against Mark E. Morrison, who is an attorney with the United States


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Attorney’s Office, and the Honorable Yvette Kane, who is a judge of the United States

District Court for the Middle District of Pennsylvania. Morrison represented Judge Kane

in connection with certain proceedings described herein. We will affirm.

                                              I.

       This appeal presents several technical procedural issues arising from the parties’

litigation of this case in both state and federal court. Substantively, however, this case is

about nothing. Conklin has been a frequent litigant before Judge Kane. In 2013, he filed

suit against Judge Kane in the Pennsylvania Court of Common Pleas for Dauphin

County. He did so by filing a praecipe for a writ of summons, which does not contain

any allegations or causes of action. The Dauphin County court ultimately entered a

judgment of non pros against Conklin when he refused to file a complaint. Conklin has

never identified in either state or federal court any substantive claim against Judge Kane

that he wishes to pursue.

       Instead, he has chosen to litigate collateral procedural issues. Judge Kane,

represented by Morrison, initially removed Conklin’s writ of summons to federal court

pursuant to the “federal officer” removal statute, 28 U.S.C. § 1442. The District Court

remanded the matter to Dauphin County because, without Conklin having filed an actual

complaint, it could not determine the nature of the action and thus could not determine

whether the action satisfied the requirements for federal officer removal. (M.D. Pa. Civ.

No. 1-13-cv-01531.) On remand, Morrison filed on Judge Kane’s behalf a praecipe for a

rule to file a complaint. The rule to file a complaint subjected Conklin to a judgment of
                                              2
non pros if he failed to file a state-court complaint against Judge Kane. See Pa. R. Civ. P.

1037(a).

       Conklin did not file a state-court complaint against Judge Kane. Instead, he

responded to these developments in two other ways. First, he filed a counseled federal

complaint against Judge Kane alleging that her removal of the Dauphin County action

violated his unspecified civil rights. The District Court dismissed that complaint, and we

affirmed. See Conklin v. Kane, 610 F. App’x 98, 100 (3d Cir. 2015).

       Second, Conklin filed a motion in the Dauphin County action for sanctions against

Morrison and Judge Kane, which is the motion at issue here. Conklin based that motion

too in part on the removal of his writ of summons. Conklin also asserted that (1)

Morrison and the United States Attorney’s Office were not authorized under federal law

to represent Judge Kane and (2) Morrison failed to serve Conklin with the rule to file a

complaint. Conklin’s request for relief included a request for punitive relief and an order

barring Morrison from representing Judge Kane in the Dauphin County action.1

       The Dauphin County court later scheduled a hearing on Conklin’s motion for

sanctions. Before the hearing date, Morrison removed the sanctions proceeding to federal

court, once again relying on the federal officer removal statute. Conklin then filed a

motion to remand and later filed a motion to disqualify the District Judge. Both Morrison


1
 Conklin also requested an order directing Morrison to serve him with the rule to file a
complaint, but Judge Kane’s subsequent counsel served Conklin with a copy more than
one month before the Dauphin County court’s ultimate entry of a judgment of non pros.

                                             3
and Judge Kane opposed Conklin’s motion for sanctions.

       By order entered September 5, 2014, the District Court denied Conklin’s motions

for remand and disqualification, denied his motion for sanctions against Morrison, and

dismissed his motion for sanctions against Judge Kane.2 The District Court also took

note of intervening developments in state court. Shortly after removal of this sanctions

proceedings, the Dauphin County court entered its judgment of non pros against Conklin

for his failure to file a complaint. Conklin did not appeal that ruling. Thus, as the

District Court noted, it appears that the Dauphin County action is concluded. Because the

District Court had jurisdiction only over the ancillary sanctions proceeding and not the

Dauphin County action as a whole, however, the court remanded “what, if anything,

remains of Conklin’s state court action.” Conklin appeals pro se.3


2
 The District Court dismissed Conklin’s motion for sanctions against Judge Kane
because she was represented by Morrison and did not sign any of the allegedly
sanctionable filings. The District Court denied Conklin’s motion for sanctions against
Morrison on the merits. Conklin has raised no specific challenge to the District Court’s
dismissal of his motion for sanctions as to Judge Kane. Thus, our discussion will focus
on Morrison.
3
  The District Court had jurisdiction pursuant to Article III of the United States
Constitution and 28 U.S.C. § 1442 as discussed below. We have jurisdiction under 28
U.S.C. § 1291. Although the District Court remanded “what, if anything, remains” of
this matter to state court, its decision is final because it finally resolves Conklin’s request
for sanctions on the merits and there is nothing further left to be done in the District
Court. See Roxbury Condo. Ass’n v. Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d
Cir. 2003); Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Invs., 951
F.2d 1399, 1403-04 (3d Cir. 1991). Conklin has not sought review of the District Court’s
order remanding this matter to state court, so we do not further address that issue. We
review the District Court’s subject matter jurisdiction de novo. See Farina v. Nokia Inc.,
625 F.3d 97, 110 (3d Cir. 2010). We review for abuse of discretion the District Court’s
                                                 4
                                             II.

       We will affirm primarily for the reasons explained by the District Court, but we

will address three issues that Conklin raises on appeal. Before we do, we begin with the

District Court’s Article III jurisdiction. Morrison removed the sanctions proceeding

pursuant to the federal officer removal statute, 28 U.S.C. § 1442. The statute permits

federal officers to remove ancillary proceedings so long as certain statutory requirements

are met. See 28 U.S.C. § 1442(a)(1), (d)(1). In addition to those statutory requirements,

a federal officer may remove a proceeding under this statute only if he or she asserts a

“colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989). The assertion

of a colorable federal defense confers Article III jurisdiction on the District Court. See

id. at 136.

       Conklin has not argued that Morrison failed to assert a colorable federal defense

for Article III purposes, and our review confirms that Morrison has. Morrison argued,

among other things, that sanctions were not warranted because his representation of

Judge Kane was authorized by federal law. See 28 C.F.R. § 50.15. That colorable

federal defense was sufficient to confer Article III jurisdiction on the District Court. See,

e.g., In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def.

Ass’n of Phila., 790 F.3d 457, 473 (3d Cir. 2015) (holding that the Federal Community


denial of a motion for disqualification, see United States v. Ciavarella, 716 F.3d 705, 717
n.4 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014), and its denial of sanctions, see In
re Prosser, 777 F.3d 154, 161 (3d Cir. 2015).

                                              5
Defender asserted a colorable federal defense by arguing that its representation of state-

court prisoners was authorized by federal law), petitions for cert. filed, Nos. 15-491 &

15-494 (U.S. Oct. 13, 2015).

         For the first time on appeal, Conklin argues that the District Court nevertheless

lacked jurisdiction under the doctrine of “derivative jurisdiction.” This doctrine renders a

District Court powerless to act in a proceeding removed from state court if the state court

itself lacked jurisdiction over that proceeding. See Minnesota v. United States, 305 U.S.

382, 389 (1939). Congress has abrogated this doctrine for proceedings removed under

the general removal statute, see 28 U.S.C. § 1441(f), but the doctrine still applies to

proceedings removed under § 1442, see Rodas v. Seidlin, 656 F.3d 610, 615-16 (7th Cir.

2011).

         Conklin argues that the Dauphin County court, and thus the District Court, lacked

jurisdiction over this sanctions proceeding. According to Conklin, the Dauphin County

court never reclaimed jurisdiction after the District Court remanded the writ of summons

because the District Court did not send the Dauphin County court a “certified copy” of

the remand order as required by 28 U.S.C. § 1447(c). See Agostini v. Piper Aircraft

Corp., 729 F.3d 350, 355 (3d Cir. 2013) (“[T]he mailing of a certified copy of the remand

order to state court is the event that formally transfers jurisdiction from a district court

within this Circuit to a state court”). There is no dispute that the District Court actually

mailed a copy of its remand order or that the Dauphin County court received it. Conklin

nevertheless argues that the remand was defective because, as appears to be the case, the
                                               6
copy of the remand order was not “certified.” If there were any merit to Conklin’s

argument, then it presumably would mean that everything the Dauphin County court did

following remand is a nullity and that the District Court should have certified its initial

remand order and returned the parties to state court to start over from the beginning.

       Conklin’s argument, however, lacks merit. Although the copy of the remand order

that the District Court mailed to the Dauphin County court does not appear to be certified,

the District Court mailed that order along with a copy of its docket entries reflecting the

entry of that order and the Dauphin County court received them. (M.D. Pa. Civ. No. 1-

13-cv-01531, ECF Nos. 9 & 11-1 at 16-21.) The Dauphin County court thereafter

resumed exercising jurisdiction. Conklin did not object to the Dauphin County court’s

exercise of jurisdiction, and he instead affirmatively sought relief from that court by

filing his motion for sanctions. Thus, the District Court clearly remanded this matter to

the Dauphin County court and both that court and the parties clearly understood that fact.

Under these circumstances, the District Court’s mailing of its remand order and docket

entries constitutes “sufficient compliance” with the certification requirement. Johnson v.

Estelle, 625 F.2d 75, 78 (5th Cir. 1980) (per curiam).4


4
  We also note that Conklin has waived this argument. Truly jurisdictional issues cannot
be waived, but “[t]he doctrine of derivative jurisdiction, despite its perhaps improvident
name, is best understood as a . . . defect in removal, . . . not an essential ingredient to
federal subject matter jurisdiction.” Rodas, 656 F.3d at 619. Thus, Conklin waived this
argument by raising it for the first time on appeal. We nevertheless address its merits in
order to alleviate any potential uncertainty regarding the validity of the proceedings that
the Dauphin County court conducted following the District Court’s initial remand.

                                              7
       Conklin also argues that the District Court’s order remanding the writ of summons

is law of the case because the District Court’s determination that removal of the writ of

summons was improper means that removal of the sanctions proceeding was improper as

well. Conklin is mistaken. When the District Court remanded the writ of summons, it

concluded merely that removal of the Dauphin County action was not (yet) appropriate

because Conklin had raised no actual substantive claim against Judge Kane. In the

absence of any substantive claim, the District Court was unable to determine whether

Judge Kane could assert a colorable federal defense to such a claim or whether the

requirements of the federal officer removal statute were satisfied.

       This sanctions proceeding is different. Conklin’s motion for sanctions made

specific allegations against Morrison, and Morrison raised at least one colorable federal

defense to those allegations. Those allegations also enabled the District Court to

determine whether the sanctions proceeding satisfied the requirements of the federal

officer removal statute. The District Court determined that it did, and we agree for the

reasons that the District Court adequately explained and as summarized in the margin.5




5
  A federal officer may remove a proceeding under § 1442 if the proceeding is against
him or her for acts committed “under color” of a federal office. 28 U.S.C. § 1442(a)(1).
Morrison’s representation of Judge Kane in his official capacity as an attorney with the
United States Attorney’s Office clearly satisfies that requirement. Conklin argues that
such representation was not authorized by federal law, but “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.” In re Commonwealth’s Motion, 790 F.3d at 472
(citing, inter alia, Willingham v. Morgan, 395 U.S. 402, 409 (1969)).
                                              8
       The final issue we address is Conklin’s argument that Morrison’s notice of

removal was untimely. Notices of removal are subject to a 30-day deadline. See 28

U.S.C. § 1446(b). A specific provision governs how this deadline applies when a

proceeding that is removable under § 1442 involves “a judicial order for testimony or

documents.” 28 U.S.C. § 1446(g). The 30-day period to remove such proceedings runs

from the date on which a person receives notice that “a judicial order for testimony or

documents is sought or issued or sought to be enforced.” Id.

       The District Court determined that this sanctions proceeding involved a “judicial

order for testimony” because Conklin requested, and the Dauphin County court

scheduled, a hearing at which it appeared that Morrison’s testimony would be required.

The District Court further concluded that Morrison’s notice was timely because he filed it

within 30 days of the Dauphin County court’s order scheduling that hearing.

       Conklin does not contest the manner in which the District Court applied this

provision or the District Court’s calculation of the deadline.6 Instead, he argues that this

provision does not apply in the first place because the Dauphin County court’s order


6
 Morrison filed his notice of removal more than 30 days after receiving notice of
Conklin’s motion for sanctions but within 30 days of the Dauphin County court’s order
scheduling a hearing on that motion. The District Court concluded that § 1446(g) permits
multiple events during a single proceeding to trigger the 30-day clock because the 30-day
deadline runs from the date on which “a judicial order for testimony or documents is
sought or issued or sought to be enforced.” 28 U.S.C. § 1446(g) (emphasis added). The
District Court further concluded that, although Morrison did not file his notice within 30
days of when Conklin “sought” a judicial order for testimony in his motion for sanctions,
Morrison filed it within 30 days of when the Dauphin County court “issued” such an
order by scheduling a hearing. Whether § 1446(b)’s 30-day clock can be triggered more
                                             9
scheduling a hearing was not a “judicial order for testimony.” The parties have not cited,

and we have not located, any appellate authority addressing the meaning of this term or

any other issue arising under § 1446(g). Section 1446(g) applies to proceedings that are

removable under § 1442, however, and removability under § 1442 must be broadly rather

than narrowly construed. See In re Commonwealth’s Motion, 790 F.3d at 467 (citing

Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994)). The District

Court explained why the Dauphin County court’s order scheduling a hearing likely was

the functional equivalent of an order requiring Morrison’s testimony and, under the

specific circumstances presented here, we agree.

       Conklin’s remaining arguments challenge the District Court’s denial of sanctions

on the merits and the District Judge’s refusal to recuse himself. We have reviewed those

arguments, including the argument that Chief Judge McKee of this Court appointed the

District Judge by designation in order to “fix” this case. We conclude that these

arguments lack merit either for the reasons adequately explained by the District Court or

for reasons that do not require discussion.

                                              III.

       For these reasons, we will affirm the judgment of the District Court.




than once under § 1446(g) is a novel issue that it appears no Court of Appeals has
addressed. We need not address that issue because Conklin has not raised it on appeal
and “[i]t is well settled that § 1446(b)’s thirty-day time limit for removal is a procedural
provision, not a jurisdictional one.” Farina, 625 F.3d at 114.
                                               10
