972 F.3d 1195
11th Cir.2020Background
- Parents sued Dr. Cheryl Tolliver and Albany Area Primary Healthcare, Inc. (AAP Healthcare) in Georgia state court for medical malpractice after their 21‑month‑old son, Darius, died following treatment at Phoebe Putney Memorial Hospital (Putney Hospital).
- AAP Healthcare received federal health‑center grant funding and had been "deemed" a Public Health Service (PHS) employee under the Federally Supported Health Centers Assistance Act (FSHCAA) for its designated grant sites; Putney Hospital was not a designated grant site.
- The United States removed the suit to federal court, certifying under 42 U.S.C. § 233 that Tolliver and AAP were deemed PHS employees acting within the scope of employment and moved to substitute the United States as defendant and to dismiss for failure to exhaust FTCA administrative remedies.
- After further review, the government withdrew its § 233 scope‑of‑employment certification, concluding the challenged care was not related to AAP Healthcare’s grant‑supported activities and Darius was not an AAP patient at a designated site; the government stipulated to remand and decertified coverage.
- Tolliver and AAP then sought a Westfall Act § 2679(d)(3) certification from the district court; the district court denied certification, found no federal jurisdiction, and remanded to state court for lack of subject‑matter jurisdiction.
- The defendants appealed; the Eleventh Circuit held that 28 U.S.C. § 1447(d) bars appellate review of remands for lack of subject‑matter jurisdiction and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument (Thomases) | Defendant's Argument (Tolliver & AAP) | Held |
|---|---|---|---|
| Whether appellate review is available of the district court’s remand under Osborn v. Haley (i.e., does Osborn’s exception apply) | Remand valid; Osborn inapplicable because removal was under § 233 | Osborn applies because government also referenced Westfall/§2679 and defendants sought §2679(d)(3) certification | Osborn does not apply; removal was under §233, and §233(c) permits district‑court remand; §1447(d) bars appellate review |
| Whether the district court erred by remanding without conducting a §233(c) hearing | Remand proper; reasons given were colorable | District court failed to hold required hearing under §233(c) before remand | Even if a hearing was required and omitted, §1447(d) bars appellate review of a jurisdiction‑based remand |
| Whether defendants could independently invoke Westfall §2679(d)(3) to obtain scope certification | Remand stands regardless; §2679(d)(3) irrelevant to appellate review | Tolliver/AAP contend they could invoke §2679(d)(3) and thereby preserve federal jurisdiction | Court declined to decide if §2679(d)(3) was available but held that, even assuming it might be, §1447(d) still bars appellate review |
| Whether the district court’s substantive scope‑of‑employment determination was reviewable on appeal | Scope finding was correct; remand appropriate | District court misapplied scope rules and erred in denying certification | Court did not review merits: appeal dismissed for lack of appellate jurisdiction under §1447(d) |
Key Cases Cited
- Hui v. Castaneda, 559 U.S. 799 (2010) (FTCA is exclusive remedy for PHS employees acting within scope)
- Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act §2679(d)(2) certifications permit appellate review of remand orders)
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (§1447(d) bars review of remands for lack of subject‑matter jurisdiction even if defect arose post‑removal)
- Kircher v. Putnam Funds Trust, 547 U.S. 633 (2006) (remand orders based on §1447(c) are insulated from appellate review despite legal error)
- Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976) (§1447(d) must be read with §1447(c) regarding remands for jurisdictional defects)
- Briscoe v. Bell, 432 U.S. 404 (1977) (remand orders on §1447(c) grounds are not reviewable)
- Overlook Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194 (11th Cir. 2019) (appellate courts must accept district court’s colorable characterization of remand basis)