Razmzan v. United States, 986 F.3d 168

Background

Plaintiff Aisha Agyin sued Dr. Shahram Razmzan in New York state court for malpractice after he delivered her stillborn twin.
At the time Razmzan was a part‑time employee/medical director of HRHCare, a federally deemed community health center; his contract provided a salary for outpatient care and permitted him to bill separately for inpatient/hospital services.
Razmzan removed to federal court invoking 28 U.S.C. § 1442 and 42 U.S.C. § 233 and moved to substitute the United States as defendant based on FSHCAA immunity for deemed PHS employees.
The district court denied substitution and remanded as to the hospital/delivery claims, concluding Razmzan acted outside the scope of employment because he billed privately and relying on the FTCA Manual and 42 C.F.R. § 6.6.
On appeal the Second Circuit held it had jurisdiction (Razmzan’s § 1442 removal was a colorable basis and procedural objections were waived) and concluded as a matter of New York law that Razmzan’s privately billed inpatient work was within the scope of his employment.
The court rejected deference to the FTCA Manual to the extent it would displace state law and reversed the district court in part, remanding for further proceedings.

Issues

Issue	Plaintiff's Argument (Agyin)	Defendant's Argument (Razmzan)	Held
Appellate jurisdiction to review partial remand	Remand order is final and not reviewable under § 1447(d)	Removal invoked § 1442; notice of removal sufficiently pleaded a colorable federal‑officer defense so appellate review is available	Court: § 1442 removal was colorable and procedural objections waived; appellate jurisdiction proper to review remand issues
Whether Razmzan was "acting under" a federal officer for § 1442 removal	He was not performing duties under federal direction sufficient to qualify	His work for a deemed health center implemented federal programs and delegated PHS status; he aided federal duties	Court: Razmzan was acting under federal authority; § 1442 removal proper
Whether privately billed inpatient services were within scope of employment (governed by NY law)	Private billing shows the doctor acted outside the employer’s scope and did not benefit HRHCare	Contract contemplated private hospital billing as part of employment arrangement; services furthered HRHCare’s duties and benefited the center	Court: Under New York multi‑factor test the delivery services were within scope and at least partially for HRHCare’s benefit; substitution warranted
Whether FTCA Manual / 42 C.F.R. § 6.6 alter scope‑of‑employment analysis	The regulation/manual exclude coverage when funds are not transferred to the center	State law controls scope; the manual cannot override unambiguous statutory directive that FTCA uses “law of the place”	Court: FTCA Manual not entitled to Skidmore deference to displace New York law; state law governs scope and favors Razmzan

Key Cases Cited

Hui v. Castaneda, 559 U.S. 799 (U.S. 2010) (FSHCAA/§ 233 confers FTCA immunity for PHS employees performing medical functions)
Watson v. Philip Morris Cos., 551 U.S. 142 (U.S. 2007) (interpretation of "acting under" for federal‑officer removal)
Mesa v. California, 489 U.S. 121 (U.S. 1989) (federal‑officer removal requires a colorable federal defense)
Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir. 2008) (elements for § 1442 removal for private parties)
Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014) (discussion of § 1442 standards)
In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (look to removal notice allegations to determine jurisdictional facts)
Fountain v. Karim, 838 F.3d 129 (2d Cir. 2016) (FTCA scope‑of‑employment uses "law of the place")
Riviello v. Waldron, 47 N.Y.2d 297 (N.Y. 1979) (New York multi‑factor scope‑of‑employment test)
Skidmore v. Swift & Co., 323 U.S. 134 (U.S. 1944) (standards for deference to agency guidance)
Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012) (examples of "acting under" when private parties help the federal government accomplish tasks)