SAM FRIEDENBERG, personal representative of the estate of Marc Sanford; DEREK LARWICK, personal representative of the estate of Richard Bates; LORRE SANFORD, an individual v. LANE COUNTY; LANE COUNTY MENTAL HEALTH, AKA Lane County Behavioral Health; CARLA AYRES; ERIK MORRIS; FRANCES FREUND; JULIE RIUTZEL v. UNITED STATES OF AMERICA
No. 21-35078
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 19, 2023
D.C. No. 6:18-cv-00177-MK. Appeal from the United States District Court for the District of Oregon.
FOR PUBLICATION
OPINION
Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges, and John R. Tunheim,* District Judge.
Opinion by Judge Paez;
Dissent by Judge Nguyen
SUMMARY**
Federal Immunity / Removal
The panel reversed the district court‘s order remanding to state court Plaintiffs’ action alleging negligence and wrongful death claims against federally funded community health centers and their employees (“Defendants“), and remanded to the district court to enter an order substituting the United States as the defendant and deeming the action as one brought under the Federal Tort Claims Act.
The Federally Supported Health Centers Assistance Act (“FSHCAA“) provides that health centers receiving funding under
The panel first addressed whether there was jurisdiction to review the district court‘s remand order. Ordinarily, a remand order is not reviewable on appeal, except for cases removed pursuant to
Next, the panel turned to whether
The panel next considered whether
Finally, the parties contested whether Defendants’ tortious conduct fell outside of their
The panel reversed the district court‘s order remanding the case to state court, and remanded to the district court to enter an order substituting the United States as the defendant and deeming the action as one brought under the Federal Tort Claims Act.
Judge Nguyen dissented because in her view this Court lacks jurisdiction over the appeal. She wrote that a fair reading of the notice of removal here showed that the Lane County defendants never asserted their intention to remove this case under
COUNSEL
Matthew S. Freedus (argued) and Rosie Dawn Griffin, Feldesman Tucker Leifer Fidell LLP, Washington, D.C.; Stephen E. Dingle, Lane County Office of County Counsel, Eugene, Oregon; for Defendants-Appellants.
Travis S. Eiva (argued), Eiva Law, Eugene, Oregon, for Plaintiffs-Appellees Sam Friedenberg, Derek Larwick, and Lorre Sanford.
Kevin B. Soter (argued), Mark B. Stern, and Dana Kaersvang, Appellate Staff Attorneys; Scott Erik Asphaug, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; United States Department of Justice; Washington, D.C.; Kevin C. Danielson, Assistant United States Attorney; Office of the United States Attorney; Portland, Oregon; for Defendant-Appellee
OPINION
PAEZ, Circuit Judge:
This case concerns the scope of immunity granted to federally funded community health centers and their employees when they are deemed Public Health Service (“PHS“) employees under the Federally Supported Health Centers Assistance Act (“FSHCAA“),
The FSHCAA provides that health centers that receive funding under
Defendants Lane County, Lane County Mental Health (“LCMH“), and its employees, Carla Ayres, Erik Morris, Frances Freund, and Julie Riutzel (collectively, “Defendants“) contend that they are entitled to
We disagree.
There is a preliminary jurisdictional issue that we must address before reaching the merits of Defendants’ appeal. Defendants appeal the district court‘s order remanding this case to the Lane County Circuit Court, where it was originally filed. Ordinarily, a remand order is not reviewable on appeal. There is an exception, however, for cases removed pursuant to
I.
In March 2015, Michael Bryant (“Bryant“) was convicted of criminal mischief and criminal trespass in the Springfield City Municipal Court in Oregon. Bryant suffers from schizophrenia and bipolar disorder with serious symptoms of psychosis. The court, as a condition of his probation, referred Bryant to a Jail Diversion Program in Lane County, Oregon, which allows mentally ill persons convicted of crimes to avoid incarceration if they comply with a mental health treatment plan. The court ordered Bryant to report to LCMH for treatment and to “follow all directives of LCMH.”
Lane County receives
In June 2014, the U.S. Department of Health and Human Services (“HHS“) issued a formal notice deeming Lane County, its health centers, and health center employees—including LCMH and its employees—as PHS employees under
In March 2015, Bryant started his treatment with LCMH as required by the court‘s order. Plaintiffs allege, however, that from roughly March 2015 to November 2015, Bryant repeatedly violated his probation by refusing to take his prescribed medication and missing medical appointments without reason. Plaintiffs contend that despite Bryant‘s repeated failures to comply with his treatment plan, no one at LCMH reported his violations to the court.
On November 15, 2015, Bryant had a psychotic breakdown, attacked his parents with a baseball bat, killed his father, and seriously injured his mother. Bryant also killed the family dog and set the family home on fire. Bryant then took the family‘s SUV and drove to Springfield, Oregon, where he ran over and killed pedestrian Richard Bates. After killing Bates, Bryant drove to Eugene, Oregon, where he ran over pedestrians Lorre and Marc Sanford. Marc Sanford died from his injuries and Lorre Sanford was severely injured.
In November 2017, Plaintiffs filed this action in the Lane County Circuit Court against Defendants. Plaintiffs alleged multiple claims of negligence and wrongful death, arguing that they were injured as a result of Defendants’ failure to report Bryant‘s repeated probation violations to the court, which would have caused the court to incarcerate him.
Defendants removed the case to federal court. They argued that the United States should be substituted as the defendant and the action should be treated as one brought under the FTCA because all Defendants were deemed PHS employees. Among other grounds for removal, Defendants cited
Plaintiffs moved to remand, arguing that the district court lacked jurisdiction. The magistrate judge determined that federal jurisdiction existed to hold a
After holding the
Defendants requested a stay of the remand order pending appeal on the ground that the case was removed, in part, pursuant to the federal officer removal statute,
The district court granted the stay, recognizing that the Supreme Court‘s then looming decision in BP P.L.C. could impact whether the court‘s remand order is reviewable on appeal. See 141 S. Ct. 222 (2020), cert. granted. Defendants’ appeal followed.
II.
We review de novo whether the district court‘s basis for remand is reviewable on appeal. Atl. Nat‘l Tr. LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 938 (9th Cir. 2010) (citation omitted). If appellate jurisdiction exists, we review de novo the district court‘s remand order for lack of subject-matter jurisdiction. Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 938 (9th Cir. 2006) (citations omitted). The district court‘s denial of absolute immunity is also reviewed de novo. Slater v. Clark, 700 F.3d 1200, 1203 (9th Cir. 2012) (citing Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc)).
III.
We first address whether we have jurisdiction to review the district court‘s remand order. Ordinarily, a district court‘s remand order is not reviewable on appeal. See
We previously interpreted
The parties disagree about whether Defendants removed the case under
A.
As a threshold matter, Plaintiffs waived their objection to the timeliness of Defendants’ removal by failing to properly raise it in district court.
A district court may only remand a case to state court for procedural defects “upon a timely motion to remand.” Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014) (citing
Plaintiffs failed to raise their timeliness objection within the statutory 30-day deadline. See
Nonetheless, Plaintiffs urge us to excuse their delay because the objection was allegedly unripe when they filed their motion to remand. They argue that the objection would have been futile because the district court decided to hold a
B.
The United States’ argument that this case was never removed pursuant to
The Supreme Court stated in BP P.L.C. that a defendant‘s compliance with
Defendants argue that
The [district] [c]ourt has jurisdiction pursuant to . . .
28 U.S.C. § 1442(a)(1) . . . to assess whether the alleged acts or omissions in the state action arose out of ‘the performance of medical, surgical, dental or related functions’ within the scope of defendants’ deemed PHS employment and, in turn, whether the United States must be substituted as the only proper defendant.
Plaintiffs do not take issue with Defendants’ reference to
The United States nevertheless contends that this case “was removed solely pursuant to [§ 233].” It argues that: (1) the notice of removal only states that the case is removable under
As a threshold matter, the notice of removal does not only cite to
Even if this were the only reference to
The Government and dissent argue that Defendants’ reference to
To invoke
First, the individual Defendants allege that they are “person[s].”
Third, Defendants allege a “colorable federal defense” by stating that Defendants’ answer to Plaintiffs’ amended complaint asserts their respective rights to absolute immunity provided under the PHSA and FSHCAA.
Finally, Defendants specifically invoke
Plaintiffs’ objection to Defendants’ focus on
When the notice of removal is read in the light most favorable to Defendants as the removing parties, the allegations are sufficient to put Plaintiffs on notice that
For purposes of determining whether a defendant invoked
IV.
We turn to the merits of Defendants’ appeal to assess whether
A.
As a general principle, the United States “may not be sued without its consent.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA, however, is an example of the federal government consenting to be sued for certain types of actions. The FSHCAA extends the FTCA to certain public health entities, their employees, and qualified contractors receiving federal grants.
The relevant entities covered by the FSHCAA are community health centers that receive federal funding under
Under
(establishing that for entities deemed to be PHS employees “[t]he remedy . . . shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States“). An entity must be “deemed” an employee of the PHS by the HHS to receive such protection.
The parties do not dispute that Defendants were deemed PHS employees during the relevant period in this case. Rather, the dispute turns on an interpretation of
The magistrate judge agreed with Plaintiffs and determined that § 233 immunity does not apply in this case because “Plaintiffs are not the ‘patient’ within the meaning of
(B) The deeming of any entity or officer, governing board member, employee, or contractor of the entity to be an employee of the Public Health Service for purposes of this section shall apply with respect to services provided-- (i) to all patients of the entity, and (ii) subject to subparagraph
(C), to individuals who are not patients of the entity.
only covers claims made by parties who received direct medical care. The district court agreed and remanded the case to state court. For the reasons explained below, we hold that this was error.
1.
We agree with Defendants that § 233 immunity does not turn on who
Nothing in
Plaintiffs do not seriously dispute this point, as the issue in this case does not turn on whether a third-party may sue for damages in connection with services provided to a patient. Plaintiffs nonetheless contend that § 233 immunity is unavailable in this case because
2.
Plaintiffs contend that § 233 immunity extends lesser protection to deemed PHS employees under
Plaintiffs argue that the tortious conduct here, which is LCMH‘s failure to inform the municipal court of Bryant‘s violations of his treatment plan, did not occur during the Defendants’ provision of medical services to Bryant. Thus, Plaintiffs posit that § 233 immunity does not apply.
Defendants counter that
Section 233(g)(1)(A) states in plain terms that “[t]he remedy against the United States for . . . an entity who is deemed to be an employee of the Public Health Service pursuant to this paragraph shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States is exclusive pursuant to subsection (a).”
Nor does the text in
Furthermore, there is nothing in the legislative history that suggests “deemed” PHS employees receive lesser protection than actual PHS employees. To the contrary, Congress intended for deemed PHS employees to receive protection “in the same manner” as traditional PHS employees during the coverage period. H.R. Rep. No. 104-398, at 4.6 As Defendants note, Congress was concerned with the lack of health center participation in the § 330 grant program because community health centers lacked clarity on whether certain services would be covered, such as services provided to non-patients. Id. at 7. Sections 233(g)(1)(B) and (C) were enacted to clear up such confusion, not to limit the protection afforded to deemed PHS employees. See also id. at 7, 11.
There is nothing to suggest that Congress intended to limit the scope of protection by enacting
Plaintiffs next argue that “[n]othing in the legislative history indicates that Congress intended to provide immunity to health centers for general tort liability arising from slip and falls, employment claims, or vehicular torts that occur outside of the actual provision of medical services to patients.” But this case does not involve such conduct. This argument is thus inapposite.
Plaintiffs also contend that § 233 was enacted to cover only medical malpractice claims. Several courts have grappled with this issue and have rejected this interpretation. Indeed, most of the cases Plaintiffs rely on so conclude.7
Any other reading would render the “related functions” language in the statute superfluous. See Pomeroy v. United States, 2018 WL 1093501, at *2 (D. Mass. Feb. 27, 2018) (“The statute must cover a broader scope of activity than the delineated categories alone, or else ‘related functions’ would be mere superfluity.” (citation omitted)). We must give meaning to the plain text of the statute, and here,
B.
Having defined the scope of § 233 immunity, we consider whether it applies in this case. We conclude that it does.
The alleged tortious conduct in this case is Defendants’ failure to notify the municipal court of Bryant‘s violations of his probation order by failing to comply with his mental health treatment plan.8 The question then is whether Defendants’ failure to report Bryant‘s violations of his treatment plan to the municipal court is a “related function” under
Few cases have assessed the meaning of “related function” under
Mele v. Hill Health Center is instructive. 609 F. Supp. 2d 248 (D. Conn. Mar. 31, 2009). The plaintiff, Mele, was a criminal defendant who was ordered to participate in a health center‘s federally funded health program that provided behavioral health services for individuals with substance abuse. Id. at 254. Mele, however, was ultimately terminated from the program because he violated his treatment plan. Id. Mele sued the health center and its employees for violating his Constitutional rights when they “terminated him from [the] drug treatment
In Teresa T. v. Ragaglia, the plaintiffs sued a doctor for failing to report suspected child abuse. 154 F. Supp. 2d 290, 293 (D. Conn. Jul. 16, 2001). Although the failure to report did not involve a direct medical service, the court determined that the doctor‘s failure to report the suspected child abuse was a “related function” to the provision of medical services. Id. at 299–300. The court reasoned that the failure to report was “related” to medical services because the duty to report was imposed on doctors acting within their professional capacity. Id. at 300. While the court reasoned that the duty to report was “triggered” during a medical examination of the child, the tortious conduct did not occur during the provision of medical services. Id. As in this case, the tortious conduct in Teresa T. was the failure to meet an alleged reporting obligation related to the evaluation of a patient.
Similarly, in Z.B. ex rel. Next Friend v. Ammonoosuc Community Health Services, Inc., the court reasoned that a medical professional‘s failure to report suspected child abuse was “related” to medical services because the duty to report “arises out of the employees’ status as medical professionals.” 2004 WL 1571988, at *3 (D. Me. June 13, 2004), report and recommendation adopted sub nom. Z.B. ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc., 2004 WL 1925538 (D. Me. Aug. 31, 2004). In that case, like here, medical services were not provided directly to the plaintiff who was the child. Id. Rather, the medical services were provided to the plaintiff‘s mother, during which the medical professionals learned of potential child abuse and had a duty to report suspected child abuse. Id. The court concluded that the tortious conduct was “related” to the provision of medical services to the plaintiff‘s mother given that the duty to report arose out of the defendants’ status as medical professionals and because the services were provided to the mother due to concerns over the child‘s welfare. Id. That case did not turn on the provision of medical treatment, but rather, whether the plaintiff‘s harm was related to it.9
Plaintiffs’ proposition that § 233 immunity applies only when the injury occurs “during the provision of medical treatment to a patient” ignores the statutory text.
We recognize that there are cases that declined to extend § 233 immunity to defendants because the alleged tortious conduct had nothing to do with the provision of medical services and thus could not be a “related function.”10 The alleged tortious conduct here, however, is not so far removed from medical services that it cannot qualify as related conduct. Rather, this case approximates the cases discussed above where district courts found that the tortious conduct was “related” to the provision of medical services. As in Mele, where the district court reasoned that a health center‘s termination of a prisoner from a jail diversion program was “related” to the provision of medical services, here, the Defendants’ failure to report Bryant‘s violations of his treatment plan to the court was “related” to the provision of medical services. See 609 F. Supp. 2d at 256.
Further, as in Teresa T. and Z.B., the alleged wrongdoing in this case is directed at the Defendants’ failure to report Bryant‘s violations of his treatment plan in their capacities as medical professionals. See 154 F. Supp. 2d at 300; 2004 WL 1571988, at *3. Indeed, any duty that the Defendants had to report Bryant‘s violations and potential threat to the public was tied to their status as medical health professionals.11 In the above cases, the conduct in question had a distinct connection to the provision of medical, surgical, or dental services. See id. Such conduct falls within the ambit of § 233.
In sum, Defendants’ failure to report is intertwined with their provision of medical services to Bryant, or at the very least, is “related” to them. Accordingly, we conclude that the tortious conduct in this case qualifies as a “related function” under
C.
Finally, the parties contest whether Defendants’ tortious conduct fell outside of their § 330 grant activities.12 Under
Plaintiffs first argue that the tortious conduct in this case does not relate to Defendants’ grant-supported activity because Lane County never mentioned the “Jail Diversion Program” in its grant application. We reject this argument. Plaintiffs fail to cite any authority stating that such specification is required. Indeed, the FTCA Manual that Plaintiffs rely on only instructs grant applicants to specify the services that they plan to perform and the locations for such services.13 An applicant need not identify the specific names of the programs that will refer patients to the applicant health centers. Indeed, the single case that Plaintiffs rely on states as much and does not support Plaintiffs’ argument. See Estate of Booker v. Greater Philadelphia Health Action, Inc., 10 F. Supp. 3d 656, 669–70 (E.D. Pa. Mar. 31, 2014) (determining that deemed health center‘s “Employee Health Program” was grant-supported activity even though the center‘s application did not mention the program by name but only noted the program‘s substance and services).
Here, Lane County references its plans to provide mental health treatment services to underserved patients in the community in its grant application. Lane County‘s participation in the Jail Diversion Program “as a patient referral service is [just] one community-based intervention through which Lane County meets the needs of its target population.”
Plaintiffs’ argument that the Jail Diversion Program is state funded and thus falls outside of the grant‘s scope also lacks merit.14 Even assuming that “grant-supported activity” only includes activity that is directly paid for by federal funds, Plaintiffs’ arguments fail because they ignore the “related to” language in
That requirement is easily satisfied here. It is undisputed that Lane County‘s grant covers its efforts to provide mental health services to vulnerable communities in its covered areas, and that the Jail Diversion Program provides needed mental health services to adults and juveniles in those areas who encounter the criminal justice system. Given that the expressed purposes of the program and the federally funded activities are similar, the acts and omissions in this case at least “relate to” Lane County‘s grant-supported activity.
Accordingly, Defendants’ tortious conduct falls within the scope of their § 330 grant. Because Defendants meet the qualifications set forth in
V.
We reverse the district court‘s order remanding this case to state court. We remand to the district court to enter an order substituting the United States as the
REVERSED AND REMANDED
NGUYEN, Circuit Judge, dissenting:
We do not, in my view, have jurisdiction over this appeal. Because the majority concludes otherwise, I respectfully dissent. As the majority acknowledges, unless an exception applies, we lack jurisdiction to review remand orders. The Lane County defendants invoke the exception for “an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title.”
The notice of removal, seventeen pages long, is entirely dedicated to explaining why there is federal jurisdiction pursuant to
The third passing reference to
The Court has jurisdiction pursuant to the PHS Act, FSHCAA, the Federal Tort Claims Act (FTCA),
28 U.S.C. § 2679(d)(3) ,28 U.S.C. § 1442(a)(1) , and28 U.S.C. § 1331 , to assess whether the alleged acts or omissions in the state action arose out of “the performance of medical, surgical, dental or related functions” within the scope of defendants’ deemed PHS employment and, in turn, whether the United States must be substituted as the only proper defendant.”
Notice of Removal at 3 (citations omitted). A string citation, without more, does not give sufficient notice that the Lane County defendants “assert the case is removable ‘in accordance with or by reason of‘”
It does not take much to give notice of a ground for removal. But a fair reading of the notice of removal here shows that the
Notes
(A) [A]n entity described in paragraph (4), and any officer, governing board member, or employee of such an entity... shall be deemed to be an employee of the Public Health Service [t]he remedy against the United States for a [deemed PHS employee] shall be exclusive of any other civil action or proceeding to the same extent as the remedy against the United States is exclusive pursuant to subsection (a).