Raizel Blumberger v. Ian Tilley
115 F.4th 1113
9th Cir.2024Background
- Eisner Pediatric & Family Medical Services (a federally funded health center) was prospectively "deemed" a PHS employee for calendar year 2018; that deeming extended to its employees (including Dr. Ian Tilley) for specified medical functions.
- Plaintiff Raizel Blumberger sued Dr. Tilley in California state court for alleged medical malpractice arising from childbirth on Jan. 3, 2018; complaint filed May 20, 2021; service June 1, 2021; answer July 16, 2021.
- Eisner notified HHS of the suit on July 20, 2021; the U.S. Attorney (on behalf of the Attorney General) appeared in state court on July 26, 2021 and said Tilley’s deemed status was “under consideration”; an amended notice in July 2022 stated Tilley was not deemed with respect to the claims.
- Dr. Tilley removed to federal court on Aug. 26, 2022 asserting federal-officer removal under 28 U.S.C. § 1442 and removal under 42 U.S.C. § 233(l)(2); the district court remanded and found the § 1442 removal untimely and the AG’s July 26, 2021 notice sufficient under § 233(l)(1).
- Ninth Circuit review: it held the district court used the wrong timeliness standard for § 1442 removal, remanded that issue for factual resolution under § 1446(b)(3), and—importantly—concluded it had appellate jurisdiction to review the district court’s § 233 ruling and reversed the district court on § 233(l)(1).
Issues
| Issue | Blumberger's Argument | Tilley's / Government's Argument | Held |
|---|---|---|---|
| Was § 1442 removal timely? | Blumberger: removal untimely (30‑day clock began on complaint). | Tilley: § 1446(b)(3) governs; clock began on later papers (e.g., HHS deeming notice or AG appearance). | District court applied wrong standard; remanded to determine when § 1446(b)(3) 30‑day period began (factbound). |
| Does an untimely § 1442 removal nevertheless confer appellate jurisdiction to review the whole remand? | Blumberger: no, untimely § 1442 bars appellate review. | Tilley: yes; once removal invoked § 1442 and § 1446(a)/(d) notice filed, BP allows review of entire remand order. | Court held appellate jurisdiction exists (BP logic): even an infirm § 1442 removal can make the whole remand order reviewable. |
| Did the AG’s July 26, 2021 notice satisfy § 233(l)(1)’s advice requirement (and thus avoid mandatory removal under § 233(c))? | Blumberger/Govt: yes—the AG complied by appearing and advising the status. | Tilley: no—the AG should have affirmatively advised the court that the Secretary had deemed Tilley for 2018 (or otherwise removed). | Court reversed: the July 26 notice (“under consideration”) did not satisfy § 233(l)(1); AG was required to advise the state court that Tilley was deemed with respect to the actions/omissions at issue, triggering removal. |
| Remedy and next steps | Blumberger: remand to state court should stand. | Tilley: vacate remand; federal court should regain jurisdiction for § 233 process/hearing. | Court vacated district-court remand in part, directed recall of remand and remand to district court to (1) resolve § 1442 timeliness, and (2) proceed under § 233 (hearing on scope if remand motion filed). |
Key Cases Cited
- BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532 (2021) (holding that when removal cites § 1442 the court of appeals may review the whole remand order)
- De Martinez v. Lamagno, 515 U.S. 417 (1995) (presumption that executive scope‑of‑employment determinations are judicially reviewable)
- Hui v. Castaneda, 559 U.S. 799 (2010) (FSHCAA/§ 233 immunities and substitution mechanics)
- Dietrich v. Boeing Co., 14 F.4th 1089 (9th Cir. 2021) (§ 1446 timing: initial pleading must affirmatively reveal removability to start 30‑day clock)
- Rea v. Michaels Stores Inc., 742 F.3d 1234 (9th Cir. 2014) (§ 1446(b)(1) pleading‑reveals rule)
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (elements for federal‑officer removal under § 1442)
- Friedenberg v. Lane County, 68 F.4th 1113 (9th Cir. 2023) (waiver of timeliness objection can make untimely § 1442 removal operative for appellate review of § 233 issues)
- Kenny v. Wal‑Mart Stores, Inc., 881 F.3d 786 (9th Cir. 2018) (no duty to investigate removability when initial documents are indeterminate)
- Allen v. Christenberry, 327 F.3d 1290 (11th Cir. 2003) (§ 233(l)(2) removal improper where AG appeared and advised no decision had yet been made)