Sam Friedenberg v. Lane County
68 F.4th 1113
9th Cir.2023Background
- Lane County Mental Health (LCMH) and employees were formally "deemed" Public Health Service (PHS) employees by HHS for calendar year 2015 under the Federally Supported Health Centers Assistance Act (FSHCAA) and received § 330 grant funding to provide mental-health services.
- Michael Bryant, on probation with a court-ordered referral to a Jail Diversion Program, repeatedly missed appointments and refused medication while under LCMH supervision; LCMH allegedly did not report these probation violations to the municipal court.
- In November 2015 Bryant committed multiple violent acts, including killings and serious injuries (including the death of Marc Sanford and Richard Bates); plaintiffs sued LCMH, Lane County, and individual employees in state court for negligence and wrongful death, alleging failure to report.
- Defendants removed to federal court, invoking 42 U.S.C. § 233 (deemed PHS immunity / FTCA substitution) and citing 28 U.S.C. § 1442 as an alternative federal-officer removal ground; the government declined substitution, finding §233 inapplicable.
- The district court held §233 immunity did not apply because plaintiffs were not patients and remanded to state court; defendants appealed. The Ninth Circuit (majority) (a) found appellate jurisdiction (§1442 invoked; plaintiffs waived timeliness objection), and (b) reversed, holding §233 immunity applies because the alleged failure to report is a "related function" within §233 and within §330 grant-related activity; it remanded with instructions to substitute the United States and treat the suit as an FTCA action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction to review remand order (was case removed under §1442; was removal timely) | Removal under §1442 was not properly invoked and, in any event, defendants’ removal was untimely. | Notice of removal cited §233 and explicitly cited §1442 as an alternative ground; plaintiffs waived any timeliness objection by not raising it within 30 days. | Plaintiffs waived timeliness; the notice sufficiently invoked §1442 as an alternative ground, so the entire remand order is reviewable on appeal. |
| Whether deemed PHS employees receive §233 immunity and whether it is limited to claims by "patients" or only malpractice claims | §233(g) limits coverage to harms arising from services ‘‘provided to patients’’ (or direct medical services), so plaintiffs (non-patients) are not covered. | §233(g)(1)(A) makes remedy against the United States exclusive "to the same extent" as §233(a); deemed employees get the same coverage as actual PHS employees, including damages from "medical...or related functions." | §233 immunity does not turn on who the plaintiff is; deemed employees are entitled to immunity to the same extent as actual PHS employees for medical, surgical, dental, or related functions. |
| Whether failure to report a patient’s probation/treatment noncompliance is a "related function" under §233(a) | Failure to report is administrative/non-medical and therefore outside §233’s "related functions." | The duty to report was tied to defendants’ roles as mental-health professionals; reporting obligations are intertwined with provision of treatment and thus are a "related" medical function. | The alleged failure to report is a "related function" under §233(a); it is sufficiently connected to medical services to trigger immunity. |
| Whether the alleged conduct was within §330 grant‑supported activities (42 C.F.R. §6.6) | The Jail Diversion Program was not identified in the §330 grant and is state-funded, so the conduct falls outside grant-supported activity. | The grant covers provision of mental-health services to underserved populations; the Jail Diversion Program refers patients into those federally supported services and is therefore related to grant activity. | The acts and omissions are at least "related to" the grant-supported mental-health activities; §330 coverage requirement is satisfied. |
Key Cases Cited
- BP P.L.C. v. Mayor of Baltimore, 141 S. Ct. 1532 (2021) (when a case is removed pursuant to §1442, a court of appeals may review the district court’s remand order in its entirety)
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (§1442 should be interpreted broadly in favor of removal for federal officers and agents)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (pleading standards for removal: removal notice must allege facts from which jurisdiction can be determined; legal conclusions alone are insufficient)
- United States v. Mitchell, 463 U.S. 206 (1983) (the United States may not be sued without its consent; FTCA is a waiver of sovereign immunity)
- Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) (FSHCAA §233 is not limited to traditional medical‑malpractice labels; scope is determined by whether claim arises from medical or related functions)
- Mele v. Hill Health Ctr., 609 F. Supp. 2d 248 (D. Conn. 2009) (failure to follow through with or to continue a patient in a treatment program was deemed a "related" function for §233 purposes)