explaining 9 that under FSHCAA, federally funded health centers and their employees can be “deemed” 10 federal employees for the purposes of malpractice liability and that “[w]hen deemed employees 11 are sued for actions taken within the scope of their employment, the United States is . . . 12 substituted as the defendant and the action proceeds as an FTCA suit”
How later courts described this case
- explaining 9 that under FSHCAA, federally funded health centers and their employees can be “deemed” 10 federal employees for the purposes of malpractice liability and that “[w]hen deemed employees 11 are sued for actions taken within the scope of their employment, the United States is . . . 12 substituted as the defendant and the action proceeds as an FTCA suit”
- establishing that removal is effected when “defendants . . . give written notice thereof to all adverse parties and . . . file a copy of the notice with the clerk of such State court” (quoting 28 U.S.C. § 1446 (d))
- “The time limit in § 1446 is merely a formal and modal requirement and is not 22 jurisdictional.” (citation omitted)
- emphasizing that the “unequivocally clear and certain” standard under Section 1446(b)(3) is a “high bar”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAIZEL BLUMBERGER, No. 22-56032
Plaintiff-Appellee, D.C. No.
v. 2:22-cv-06066-
FLA-JC
IAN B. TILLEY, M.D.,
Defendant-Appellant, OPINION
and
CALIFORNIA HOSPITAL
MEDICAL CENTER; DIGNITY
HEALTH; DOES, 1 through 6 and 7
through 50,
Defendants,
v.
UNITED STATES OF AMERICA,
Movant-Appellee.
2 BLUMBERGER V. TILLEY
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted November 14, 2023
Pasadena, California
Filed September 9, 2024
Before: Barrington D. Parker, Jr.,* Jay S. Bybee, and
Roopali H. Desai, Circuit Judges.
Opinion by Judge Bybee;
Partial Dissent by Judge Desai
SUMMARY **
Removal / Federally Supported Health Centers
Assistance Act
The panel (1) vacated the district court’s order
remanding Raizel Blumberger’s medical malpractice suit
against Dr. Ian Tilley to state court; (2) reversed the district
court’s conclusion that the Attorney General satisfied its
advice requirement obligations to the state court under the
*
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BLUMBERGER V. TILLEY 3
Federally Supported Health Centers Assistance Act
(FSHCAA); and (3) held that the government was obligated
to remove the case to federal court in accordance with the
FSHCAA.
Under the FSHCAA, employees of federally funded
health centers can be deemed federal employees of the
United States Public Health Service for the purpose of
malpractice liability. When a deemed federal employee is
sued for medical malpractice for acts or omissions within the
scope of his employment, the United States is substituted as
the defendant, and the malpractice action proceeds against
the government under the Federal Tort Claims Act. 42
U.S.C. § 233(g). If a malpractice suit is filed in state court,
the Attorney General must appear within fifteen days of
receiving notice of the action pursuant to § 233(l)(1), advise
the state court whether the defendant is a deemed a federal
employee, and if so, remove the case to federal court. If the
Attorney General fails to properly appear, the defendant can
remove the proceeding.
After Blumberger sued Dr. Tilley for medical
malpractice, the Attorney General appeared in state court
and notified the court that Dr. Tilley’s status as a deemed
employee under § 233 was under consideration. One year
later, after the Attorney General advised the court that Dr.
Tilley was not a deemed employee, Dr. Tilley removed the
case under the federal officer removal statute, 28 U.S.C.
§ 1442, and under § 233(l)(1). The district court remanded,
finding that Dr. Tilley’s removal was untimely under § 1442
and that the Attorney General satisfied its advice obligations
under § 233(l)(1).
4 BLUMBERGER V. TILLEY
The panel held that the district court analyzed the
timeliness of Dr. Tilley’s § 1442 removal under the wrong
legal standard and remanded on that basis.
Notwithstanding the potential untimeliness of Dr.
Tilley’s § 1442 removal, the panel determined that it had
jurisdiction to review the district court’s § 233 analysis. The
panel concluded that the Attorney General was obligated
under § 233(l)(1) to advise the state court that Dr. Tilley had
been a deemed employee during the relevant time
period. The panel reversed the district court’s conclusion
that the Attorney General’s state-court notice that Dr.
Tilley's status was "under consideration" satisfied the
requirements of § 233(l)(1) and held that the government
was obligated to remove the case to federal court. If the
Attorney General subsequently determines before trial that
Dr. Tilley was not acting within the scope of his employment
and therefore was not entitled to malpractice coverage, the
Attorney General is free to seek remand to state court. And
Dr. Tilley would be entitled to a hearing in a federal court to
determine his status.
Judge Desai dissented in part from Section III of the
majority’s opinion addressing removal under § 233. At
bottom, § 233 allows a defendant to remove in only one
circumstance—when the Attorney General fails to appear.
Because that did not happen here, Dr. Tilley’s removal under
§ 233(l)(2) was improper.
BLUMBERGER V. TILLEY 5
COUNSEL
Matthew S. Freedus (argued), Rosie D. Griffin, and Brendan
M. Tyler, Feldesman Leifer LLP, Washington, D.C., for
Defendants-Appellants.
Samuel J. Winokur (argued) and Barry B. Novack, Law
Offices of Barry Novack, Beverly Hills, California, for
Plaintiff-Appellee.
Kevin B. Soter (argued), Dana Kaersvang and Mark B.
Stern, Appellate Staff Attorneys, Civil Division; E. Martin
Estrada, United States Attorney; Brian M. Boynton,
Principal Deputy Assistant Attorney; United States
Department of Justice, Washington, D.C.; Ryan C.
Chapman, Assistant United States Attorney, Office of the
United States Attorney, Los Angeles, California; for
Movant-Appellee.
OPINION
BYBEE, Circuit Judge:
The ultimate issue in this case is simple enough: We are
asked to decide whether Plaintiff-Appellee Raizel
Blumberger’s medical malpractice suit against Defendant-
Appellant Dr. Ian Tilley was—or should have been—
removed to federal court. Having said that, everything else
gets pretty complicated. But “resolving hard cases is part of
the judicial job description,” Dubin v. United States, 599
U.S. 110, 132 n.10 (2023), and “hard interpretive
conundrums, even relating to complex rules, can often be
solved,” Kisor v. Wilkie, 588 U.S. 558, 575 (2019).
6 BLUMBERGER V. TILLEY
The solution in this case requires that we consider two
statutes dealing with removal to federal court: 28 U.S.C.
§ 1442 and 42 U.S.C. § 233. We first conclude that the
district court’s analysis of the timeliness of Dr. Tilley’s
§ 1442 removal proceeded under the wrong legal standard,
and we remand on that basis. We then hold that even an
untimely § 1442 removal nevertheless confers appellate
jurisdiction to review the other bases for the district court’s
remand order. We reverse the district court’s conclusion that
the Attorney General’s July 26, 2021, notice to the state
court that Dr. Tilley’s deeming status was “under
consideration” satisfied the advice requirement of
§ 233(l)(1). Consequently, we hold that the government was
obligated to remove the case to federal court in accordance
with § 233(c). We therefore vacate the district court’s
remand order.
I. BACKGROUND
A. Statutory Scheme
The United States Public Health Service (PHS) is a
federal uniformed service within the Department of Health
and Human Services (HHS). When an employee of the PHS
is sued for medical malpractice arising from acts or
omissions within the scope of his employment, the United
States is substituted as the defendant, and the malpractice
action proceeds against the government under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–80. See
42 U.S.C. § 233(a). This remedy is “exclusive of any other
civil action or proceeding,” 42 U.S.C. § 233(a), and it
“grants absolute immunity to PHS officers and employees
for actions arising out of the performance of medical or
related functions within the scope of their employment,” Hui
v. Castaneda, 559 U.S. 799, 806 (2010).
BLUMBERGER V. TILLEY 7
To attract medical providers to federally funded health
centers, Congress passed the Federally Supported Health
Centers Assistance Act (FSHCAA). Under FSHCAA,
federally funded health centers and their employees can be
“deemed” federal employees of the PHS for the purposes of
malpractice liability. See 42 U.S.C. § 233(g). The immunity
for deemed PHS employees is identical to the immunity for
true PHS employees. See id. § 233(g)(1)(A). When deemed
employees are sued for actions taken within the scope of
their employment, the United States is similarly substituted
as the defendant and the action proceeds as an FTCA suit.
Id.; id. § 233(a). 1
1
We have set forth here the relevant portions of 42 U.S.C. § 233:
(a) Exclusiveness of remedy — The remedy against
the United States provided by sections 1346(b) and
2672 of title 28, or by alternative benefits provided by
the United States where the availability of such
benefits precludes a remedy under section 1346(b) of
title 28, for damage for personal injury, including
death, resulting from the performance of medical,
surgical, dental, or related functions, including the
conduct of clinical studies or investigation, by any
commissioned officer or employee of the Public
Health Service while acting within the scope of his
office or employment, shall be exclusive of any other
civil action or proceeding by reason of the same
subject-matter against the officer or employee (or his
estate) whose act or omission gave rise to the claim.
***
(c) Removal to United States district court; procedure;
proceeding upon removal deemed a tort action against
United States; hearing on motion to remand to
determine availability of remedy against United
States; remand to State court or dismissal — Upon a
8 BLUMBERGER V. TILLEY
certification by the Attorney General that the
defendant was acting in the scope of his employment
at the time of the incident out of which the suit arose,
any such civil action or proceeding commenced in a
State court shall be removed without bond at any time
before trial by the Attorney General to the district court
of the United States of the district and division
embracing the place wherein it is pending and the
proceeding deemed a tort action brought against the
United States under the provisions of title 28 and all
references thereto. Should a United States district
court determine on a hearing on a motion to remand
held before a trial on the merit that the case so removed
is one in which a remedy by suit within the meaning
of subsection (a) of this section is not available against
the United States, the case shall be remanded to the
State Court . . . .
***
(l) Timely response to filing of action or proceeding
(1) If a civil action or proceeding is filed in a State
court against any entity described in subsection
(g)(4) of this section or any officer, governing board
member, employee, or any contractor of such an
entity for damages described in subsection (a) of this
section, the Attorney General, within 15 days after
being notified of such filing, shall make an
appearance in such court and advise such court as to
whether the Secretary has determined under
subsections (g) and (h) of this section, that such
entity, officer, governing board member, employee,
or contractor of the entity is deemed to be an
employee of the Public Health Service for purposes
of this section with respect to the actions or
omissions that are the subject of such civil action or
proceeding. Such advice shall be deemed to satisfy
the provisions of subsection (c) of this section that
the Attorney General certify that an entity, officer,
BLUMBERGER V. TILLEY 9
To say that “[o]ur inquiry in this case begins and ends
with the text of § 233[],” Hui, 559 U.S. at 805, understates
the task before us. The statutory scheme is enormously
complicated. A health center receiving federal funds may
file an application with the Secretary of HHS to be “deemed”
an employee of the PHS. See 42 U.S.C. § 233(g)(1)(A), (D);
see also id. § 233(h) (setting forth the deeming criteria).
Upon approval, the entity—along with its officers, board
members, and employees—are deemed PHS employees for
one calendar year. Id. § 233(g)(1)(A). This deeming status
applies with respect to suits initiated by any patient of the
entity. Id. § 233(g)(1)(B)(i). The Secretary’s deeming
determination is generally “final and binding upon the
Secretary and the Attorney General.” 2 Id. § 233(g)(1)(F).
governing board member, employee, or contractor
of the entity was acting within the scope of their
employment or responsibility.
(2) If the Attorney General fails to appear in State
court within the time period prescribed under
paragraph (1), upon petition of any entity or officer,
governing board member, employee, or contractor
of the entity named, the civil action or proceeding
shall be removed to the appropriate United States
district court. The civil action or proceeding shall
be stayed in such court until such court conducts a
hearing, and makes a determination, as to the
appropriate forum or procedure for the assertion of
the claim for damages described in subsection (a) of
this section and issues an order consistent with such
determination.
2
The statute also provides a mechanism for withdrawing deemed status
for employees of a deemed entity prior to any suit being filed. The
Attorney General may, in consultation with the Secretary of HHS and
after notice and a hearing, determine that an employee of a deemed entity
“shall not be deemed an employee of the Public Health Service . . . if
10 BLUMBERGER V. TILLEY
The Secretary’s prospective deeming decision, however,
does not automatically immunize a covered entity or
employee from a particular malpractice suit. Instead, to be
eligible for FTCA immunity, the “act or omission [giving]
rise to the claim” must also have occurred while the
defendant was “acting within the scope of his office or
employment.” Id. § 233(a). Only then must the Attorney
General defend a civil action against a deemed employee.
Id. § 233(b).
Who determines whether a defendant was acting within
the scope of his employment and when such determination
must be made is at the heart of the controversy before us.
When “any person referred to in subsection (a)” is sued, he
must deliver “all process served upon him . . . to his
immediate superior or to whomever was designated by the
Secretary to receive such papers.” Id. Such notice shall be
delivered “promptly.” 28 C.F.R. § 15.2(b). The person to
whom the defendant delivers that process must in turn
“promptly furnish copies of the pleading and process therein
to the United States attorney for the district embracing the
place wherein the proceeding is brought, to the Attorney
General, and to the Secretary.” 42 U.S.C. § 233(b). After
receiving notice of a proceeding, the Attorney General may
certify “that the defendant was acting in the scope of his
employment at the time of the incident out of which the suit
arose.” Id. § 233(c). Upon making that certification, if the
suit was filed in state court, the Attorney General must
remove the case to federal court, which he may do “at any
time before trial.” Id. The federal court may subsequently,
treating such individual as an employee would expose the Government
to an unreasonably high degree of risk of loss” for certain enumerated
reasons. 42 U.S.C. § 233(i)(1).
BLUMBERGER V. TILLEY 11
upon motion to remand, hold a hearing as to whether the case
“is one in which a remedy by suit within the meaning of
subsection (a) of this section is not available against the
United States.” Id. That is, the court may hold a hearing as
to whether the deemed employee was acting within the scope
of his employment when he committed the allegedly tortious
conduct.
All of this leaves open the possibility that the Attorney
General may not be in a position to make a scope-of-
employment certification upon receiving notice of the
proceeding. It is this possibility that is the subject of the
present controversy. If the suit was originally filed in state
court, the Attorney General “shall make an appearance” in
state court “within 15 days” of receiving notice of the action.
Id. § 233(l)(1). At that appearance, the Attorney General
must “advise such court as to whether the Secretary has
determined” that the entity or employee “is deemed to be an
employee of the Public Health Service . . . with respect to the
actions or omissions that are the subject of such civil action
or proceeding.” Id. If the Attorney General notifies the state
court that the Secretary has deemed the defendant a PHS
employee with respect to the acts or omissions that gave rise
to the suit, that advice “satisf[ies] the provisions of
subsection (c) that the Attorney General certify that an
entity[] . . . [or] employee . . . was acting within the scope of
their employment or responsibility.” Id. As explained
above, an affirmative scope-of-employment certification
under subsection (c) obligates the Attorney General to
remove the case to federal court. See id. § 233(c).
The statute contemplates that the Attorney General might
fail to appear within the 15 days prescribed by
subsection (l)(1). “If the Attorney General fails to appear in
State court within” 15 days, the case “shall be removed” to
12 BLUMBERGER V. TILLEY
federal court “upon petition of any entity . . . [or] employee
. . . of the entity.” Id. § 233(l)(2). In other words, if the
Attorney General fails to make an appearance in state court,
the defendant can remove the proceeding to federal court
under subsection (l)(2) without action by the Attorney
General. If the case has been removed by an employee
without action by the Attorney General, the state court is
deprived of jurisdiction, and the case is stayed until the
federal court “conducts a hearing, and makes a
determination, as to the appropriate forum or procedure for
the assertion of the claim.” Id.
B. Procedural Posture
Eisner Pediatric and Family Medical Services (Eisner) is
a community health center that receives federal grant funds
under 42 U.S.C. § 254b. In 2017, HHS deemed Eisner an
employee of the PHS for the 2018 calendar year. The notice
also extended deemed status to Eisner’s employees—Dr. Ian
Tilley among them—for performing medical, surgical,
dental, or related functions while acting within the scope of
their employment.
On January 3, 2018, Dr. Tilley, an attending physician,
and Dr. Jennifer Sternberg, a resident, delivered Raizel
Blumberger’s baby. At the time, the doctors were working
at California Hospital Medical Center, located just blocks
from Eisner in downtown Los Angeles. The doctors
allegedly “failed to provide proper medical care to address a
laceration that occurred during childbirth, and failed to
timely suspect, refer, diagnose and treat the wound so as to
cause [Blumberger] to suffer pain, suffering and other
injuries.” Unlike Eisner, California Hospital Medical Center
is not federally funded, but the relationship between the two
entities is not readily apparent from this record.
BLUMBERGER V. TILLEY 13
The timeline here is of some consequence. Blumberger
filed her complaint on May 20, 2021, in California Superior
Court. The summons and complaint were served on Dr.
Tilley on June 1, 2021. Dr. Tilley answered on July 16,
2021. The answer raised sixteen affirmative defenses, none
of which involved his status as a deemed PHS employee. On
the record before us, we have no reason to believe that Dr.
Tilley was subjectively aware of his deemed status when
filing the answer. On July 20, 2021—four days after Dr.
Tilley’s answer—Eisner notified HHS of the complaint
against Dr. Tilley.
The Attorney General, through the local United States
Attorney, appeared in state court on July 26, 2021. 3 The
government notified the state court that “whether Defendant
Ian B. Tilley, M.D.[,] is deemed to be an employee of the
Public Health Service for purposes of 42 U.S.C. § 233 with
respect to the actions or omissions that are the subject of the
above captioned action, is under consideration.” The
Attorney General did not remove the case to federal court.
Nearly one year later, on July 21, 2022, the government
amended the notice. In relevant part, the notice stated that
Dr. Tilley “is not deemed to be an employee of the [PHS] . . .
with respect to the actions or omissions that are the subject
of the above captioned action.”
Dr. Tilley putatively removed the case to the U.S. District
Court for the Central District of California on August 26,
2022. 4 He asserted two bases for removing the case. First,
3
The notice was dated July 22, 2021, but it was stamped “RECEIVED”
on July 26, 2021.
4
Dr. Tilley’s counsel attempted to file the notice of removal on
August 25, 2022, but encountered difficulties with CM/ECF. The notice
was therefore considered filed the following day.
14 BLUMBERGER V. TILLEY
he argued that he was entitled to federal officer removal
pursuant to 28 U.S.C. § 1442(a)(1) because he “was acting
under Eisner’s federal grantor agency, HHS.” Second, he
argued that removal was proper under 42 U.S.C. § 233(l)(2).
Dr. Tilley contended that the government’s appearance in
state court was deficient because the Attorney General was
required to advise the state court of Dr. Tilley’s positive
deeming status for the 2018 year. Dr. Tilley argued that,
although the Attorney General was not obligated to appear
in state court to affirm whether Dr. Tilley was acting within
the scope of his employment, the Attorney General was at
least obligated to advise the state court that Dr. Tilley was
deemed to be a PHS employee because he was employed by
Eisner. Because the Attorney General did not fulfill that
obligation, Dr. Tilley argued, the government failed to
appear as required under subsection (l)(1), thus making
defendant-initiated removal proper under subsection (l)(2).
The district judge remanded the case. The court found
Dr. Tilley’s § 1442 removal untimely. It reasoned that Dr.
Tilley’s purported basis for federal officer removal existed
when the complaint was filed in state court, which triggered
a 30-day removal clock under 28 U.S.C. § 1446(b)(1).
Because the complaint was filed on May 20, 2021, Dr.
Tilley’s removal more than a year later was untimely. The
court similarly rejected Dr. Tilley’s basis for removal under
§ 233(l)(2). It explained that under subsection (l)(1), the
government need only advise the state court as to whether
the Secretary has made a deeming decision, which the
government did here. Put differently, the district court
surmised that “removal is improper . . . if the Attorney
General appeared within 15 days after being notified of the
state court action, even if that appearance was only to advise
the court that no determination had yet been made.”
BLUMBERGER V. TILLEY 15
Dr. Tilley timely appealed. Because the propriety of the
district court’s remand order turns on questions of statutory
interpretation, our review is de novo. See Ehart v. Lahaina
Divers, Inc., 92 F.4th 844, 849 (9th Cir. 2024); Tanoh v. Dow
Chem. Co., 561 F.3d 945, 952 (9th Cir. 2009).
II. SECTION 1442 AND APPELLATE JURISDICTION
As complicated as parsing § 233 may be, we have one
matter to attend to first: our own appellate jurisdiction. In
general, “[a]n order remanding a case to the State court from
which it was removed is not reviewable on appeal.” 28
U.S.C. § 1447(d). However, “an order remanding a case to
the State court from which it was removed pursuant to
section 1442 . . . shall be reviewable by appeal or
otherwise.” Id. Crucially, the Supreme Court has held that
when removal was effectuated in part pursuant to § 1442, an
appellate court possesses jurisdiction to review the entire
remand order—not only those components pertaining to
§ 1442. BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1538
(2021) (“Here, everyone admits the defendants’ notice of
removal . . . cit[ed] § 1442 as one of its grounds for removal.
Once that happened and the district court ordered the case
remanded to state court, the whole of its order became
reviewable on appeal.”).
These rules give rise to two threshold questions. First,
was Dr. Tilley’s § 1442 removal untimely? Second, if so, is
the case still one “removed pursuant to section 1442” such
that we retain appellate jurisdiction over the rest of the
remand order? 28 U.S.C. § 1447(d). We conclude that the
district court applied the wrong legal standard in answering
the first question, so we remand on this issue to resolve
certain factual uncertainties. Notwithstanding the
uncertainty about the timeliness of Dr. Tilley’s § 1442
16 BLUMBERGER V. TILLEY
removal, we conclude that we still have appellate
jurisdiction to review the entire remand order, including the
district court’s § 233 holding. We take these issues in turn.
A. Whether Dr. Tilley’s § 1442 Removal Was Timely
A case is removable under § 1442 if the “party seeking
removal [can] demonstrate that (a) it is a ‘person’ within the
meaning of the statute; (b) there is a causal nexus between
its actions, taken pursuant to a federal officer’s directions,
and plaintiff’s claims; and (c) it can assert a ‘colorable
federal defense.’” Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1251 (9th Cir. 2006) (citation omitted).
Section 1446(b) provides the rules governing the timeliness
of removal. The default rule is that the party seeking
removal must remove “within 30 days after the receipt . . .
of a copy of the initial pleading.” 28 U.S.C. § 1446(b)(1).
But “if the case stated by the initial pleading is not
removable,” a party may remove a case within 30 days “of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable.” Id. § 1446(b)(3).
Was the case stated by Blumberger’s initial pleading
removable under § 1442? We think not. The 30-day clock
under § 1446(b)(1) begins to run “only when that pleading
affirmatively reveals on its face the facts necessary for
federal court jurisdiction.” Rea v. Michaels Stores Inc., 742
F.3d 1234, 1238 (9th Cir. 2014) (per curiam) (emphasis
added) (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d
689, 691–92 (9th Cir. 2005)). Our decision in Dietrich v.
Boeing Co., 14 F.4th 1089 (9th Cir. 2021), provides a
clarifying example in the context of federal officer removal.
There, the plaintiff sued Boeing, alleging that she had been
exposed to asbestos when her family members were in the
BLUMBERGER V. TILLEY 17
employ of the company. “[H]er family members were
exposed to asbestos through Boeing’s work for the United
States military,” but the complaint did not mention this
relationship—“a connection that would have alerted Boeing
to a possible basis for removal to federal court under the
federal officer removal statute.” Id. at 1091. The court
therefore concluded that “Dietrich’s initial complaint d[id]
not set forth a ground for removal,” id. at 1093, even though
Boeing likely could have discovered this connection from a
review of its own records.
As in Dietrich, the face of the complaint before us does
not allege sufficient facts to alert Dr. Tilley to his potential
basis for removal based on his relationship with HHS. The
complaint does not mention Eisner at all, let alone its status
as a deemed PHS entity. Instead, the complaint suggests that
Dr. Tilley was employed by California Hospital Medical
Center, which was not a federally funded entity. Nothing in
the record suggests that Dr. Tilley was subjectively aware of
Eisner’s (and therefore, his) deemed status when the
complaint was filed on May 20, 2021; it seems implausible
that if Dr. Tilley was aware of his deemed status, he would
have chosen not to raise it as one of his sixteen affirmative
defenses in filing his answer. Instead, it appears to us that
Dr. Tilley was oblivious to his potential claim to § 233
immunity as an Eisner employee—and thus the potential for
federal officer removal based on his relationship with
HHS—until the government first appeared in state court on
July 26, 2021. By that point, in accordance with § 233(b),
Eisner had informed the Secretary of HHS of the suit, and
HHS had advised the Attorney General. The district court
thus erred in analyzing the timeliness of Dr. Tilley’s § 1442
removal under § 1446(b)(1) instead of § 1446(b)(3).
18 BLUMBERGER V. TILLEY
Starting the 30-day clock under § 1446(b)(3) is more
difficult than under § 1446(b)(1). See Dietrich, 14 F.4th at
1093 (recognizing that § 1446(b)(3) “seems to require a
greater level of certainty or that the facts supporting
removability be stated unequivocally” (citation omitted)).
The clock runs only upon receipt of a “paper from which it
may first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3). We have held
that “an amended pleading, motion, order, or other paper
must make a ground for removal unequivocally clear and
certain” to trigger § 1446(b)(3)’s temporal limitation.
Dietrich, 14 F.4th at 1095. This is a high bar, for good
reason. It avoids bad-faith gamesmanship by “preventing
plaintiffs from strategically starting the removal clock
without the defendants’ realization.” Id. at 1094.
The government’s July 26, 2021, state-court notice
provided anything but “unequivocally clear and certain”
support for removal under § 1442. The government’s notice
was definitionally indeterminate, stating that Dr. Tilley’s
deemed status “with respect to the actions or omissions that
are the subject of the above captioned action[] is under
consideration.” Because the government’s notice did not say
that Dr. Tilley was a deemed PHS employee, Dr. Tilley could
not have been certain from the government’s notice alone
whether the Secretary had deemed him a PHS employee for
the 2018 calendar year. Perhaps that should have clued Dr.
Tilley to investigate his status further—after all, the
government’s notice referenced § 233 explicitly and implied
that Dr. Tilley might be “deemed to be an employee of the
Public Health Service.” But we have “emphasized that a
defendant does not have a duty of inquiry if the initial
pleading or other document is indeterminate with respect to
BLUMBERGER V. TILLEY 19
removability.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786,
791 (9th Cir. 2018) (citation and quotation marks omitted).
Nor do we think the government’s subsequent notice that
Dr. Tilley was not deemed a PHS employee is
“unequivocally clear and certain” to support § 1442
removal. To the contrary, the government’s adverse decision
that Dr. Tilley was not so deemed suggests that Dr. Tilley did
not qualify for § 1442 removal because he was not acting
under the direction of a federal officer and is unable to assert
a viable federal defense. Even more, it did not notify Dr.
Tilley with any certainty that he was deemed a PHS
employee for the 2018 calendar year. Of course, it was at
this point that Dr. Tilley first learned with near certainty that
the government would not remove the case on his behalf.
But that is a far cry from notice that a “ground for removal
was unequivocally clear and certain.” Dietrich, 14 F.4th at
1095 (emphasis added). And even if Dr. Tilley should have
removed at this point, he was not necessarily obligated to do
so within 30 days of receiving the government’s adverse
notice. Cf. id. at 1094 (distinguishing “facts sufficient to
allow removal with facts sufficient to require removal within
thirty days”).
Left with only the foregoing, we might have been
inclined to conclude that Dr. Tilley’s § 1442 removal was
timely. We have recognized that “the defendant may remove
at any time” “as long as the complaint or ‘an amended
pleading, motion, order or other paper’ does not reveal that
the case is removable.” Rea, 742 F.3d at 1238; accord
Kenny, 881 F.3d at 791. But we think there may be some
“other paper” that makes Dr. Tilley’s asserted ground for
removal unequivocally clear and certain: HHS’s 2017 notice
deeming Eisner a PHS entity for the 2018 calendar year.
This paper may satisfy § 1446(b)(3)’s requirements. In
20 BLUMBERGER V. TILLEY
particular, the document makes clear that Eisner is deemed a
PHS entity for the 2018 year and that “[c]overage extends to
deemed entities and their . . . full- and part-time employees.”
Because Dr. Tilley’s § 1442 removal rests entirely on his
status as an employee of a deemed PHS entity, HHS’s notice
provides unequivocally clear and certain support for Dr.
Tilley’s contention that he was acting “pursuant to a federal
officer’s directions” when treating Blumberger and that there
is a “colorable federal defense” pertaining to the medical
malpractice claims. Durham, 445 F.3d at 1251 (citation
omitted).
It is not clear from the record before us whether and
when Dr. Tilley received the deeming notice; in fact, the
record is not clear as to when Dr. Tilley learned of his
deemed status in the first place. We therefore remand to the
district court to determine when Dr. Tilley’s 30 days under
§ 1446(b)(3) began to run, if at all. If it determines that Dr.
Tilley’s § 1442 notice was timely, then the district court
should proceed to decide whether Dr. Tilley was an “officer
(or any person acting under [an] officer) of the United States
or of any agency thereof.” 28 U.S.C. § 1442(a)(1); see
generally Doe v. Cedars-Sinai Health Sys., 106 F.4th 907
(9th Cir. 2024). We express no view on the merits of this
question.
B. Whether We Have Appellate Jurisdiction to Review the
§ 233 Ruling Even If Dr. Tilley’s § 1442 Removal Was
Untimely
Dr. Tilley argues that even if his § 1442 removal was
untimely, we still have appellate jurisdiction to review the
district court’s § 233 ruling. This is an issue of first
impression, and we conclude that we can review the
remainder of the district court’s order.
BLUMBERGER V. TILLEY 21
Section 1447(d) governs our jurisdiction to review a
remand order. The provision precludes appellate review of
a remand order, “except that an order remanding a case to
the State court from which it was removed pursuant to
section 1442 or 1443 of this title shall be reviewable by
appeal or otherwise.” 28 U.S.C. § 1447(d). In other words,
we may review a remand order if removal occurred
“pursuant to section 1442.” Id. And as the Supreme Court
held in BP, a removal pursuant to § 1442 confers appellate
jurisdiction to review the entire remand order—not only the
components of that order arising out of the federal officer
removal. 141 S. Ct. at 1538. The question, then, is whether
an untimely removal under § 1442 is nevertheless a case
“removed pursuant to section 1442” within the meaning of
the statute.
We start with § 1446(d). That section provides:
“Promptly after the filing of such notice of removal of a civil
action[,] the defendant or defendants shall give written
notice thereof to all adverse parties and shall file a copy of
the notice with the clerk of such State court, which shall
effect the removal.” 28 U.S.C. § 1446(d). At that point, the
case is removed, “and the State court shall proceed no further
unless and until the case is remanded.” Id. The first clause
of this subsection provides a timing rule: After filing a
notice of removal in federal court, the defendant must
promptly give notice to adverse parties and the state court.
The actions in the second clause describe what “shall effect
the removal”—that is, the dissemination of notice to the
adverse parties and the filing of a copy of the notice with the
clerk of the state court.
Satisfying the notice requirements of § 1446(d) does not,
of course, guarantee that the removed case will remain in
federal court. Section 1447(c) provides for remand on the
22 BLUMBERGER V. TILLEY
basis of “any defect,” including timeliness. See id. § 1447(c)
(“A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under
section 1446(a).”). The time limit in § 1446 is “merely a
formal and modal requirement and is not jurisdictional.”
Friedenberg v. Lane County, 68 F.4th 1113, 1121 (9th Cir.
2023) (quoting Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th
Cir. 2014)). For that reason, a failure to raise timeliness as
an issue forfeits an objection to this procedural defect. A
procedural defect may affect the federal court’s subsequent
decision to remand, but it does not change the fact that
satisfying the notice requirements removes the case in the
first place. The cases and commentary are clear that even
temporary removal is removal, and “[t]he jurisdiction of the
state court over the action is immediately ousted and the
federal court assumes jurisdiction for all purposes.” Moore’s
Fed. Prac. § 1446.2[4], at 653 (2023 ed.) (citation omitted);
see Resol. Tr. Corp. v. Bayside Devs., 43 F.3d 1230, 1238
(9th Cir. 1994) (“Thus, the clear language of the general
removal statute provides that the state court loses jurisdiction
upon the filing of the petition for removal.” (emphasis
added)); Moore’s Fed. Prac., supra, § 1447.2[2][a], at 655
(“[R]emoval is effected automatically by the filing of the
notice of removal. If the federal court later determines that
the removal was improper, remand under § 1447(c) is the
statutory procedure by which the action is returned to the
state court.”); cf. Brooks v. Liberty Life Assurance Co. of
Bos., 937 F.3d 1144, 1145 (8th Cir. 2019) (“And the federal
statute is clear: removal is effective upon ‘fil[ing] a copy of
the notice [of removal] with the clerk of [the] State court,’
regardless of how state law might treat the notice after it is
BLUMBERGER V. TILLEY 23
filed.” (alterations in original) (emphasis omitted) (quoting
28 U.S.C. § 1446(d))).
The Supreme Court’s decision in BP supports our
conclusion. The Court there considered, among other issues,
the circumstances under which a case is removed pursuant
to § 1442(a)(1). The majority opined that the removal
“statute requires the defendant to provide affected parties
and courts with a notice stating its grounds for removal.
§§ 1446(a), (d). The combination of these actions ‘effect[s]
the removal.’ § 1446(d).” BP, 141 S. Ct. at 1538 (alteration
in original). Conspicuously, the Court cited only § 1446(a)
and (d) as the precondition to effecting removal, rather than
referencing the timeliness requirements in § 1446(b). The
Court continued, “To remove a case ‘pursuant to’ § 1442 or
§ 1443, then, just means that a defendant’s notice of removal
must assert the case is removable ‘in accordance with or by
reason of’ one of those provisions.” Id. (emphasis added)
(footnote omitted). “Once that happened and the district
court ordered the case remanded to state court, the whole of
its order became reviewable on appeal.” Id. BP thus
confirms that comporting with the procedures of § 1446(a)
and (d) removes the case to federal court; nothing more is
required.
Beyond the opinion’s express reasoning, the logic of BP
similarly supports our interpretation. BP supposed that there
might be improper § 1442 removals that nevertheless confer
appellate jurisdiction to review the other components of the
remand order. See id. at 1542–43 (discussing frivolous
§ 1442 removals). The Court also suggested that “a court of
appeals [might] find[] the § 1442 or § 1443 issue a difficult
and close one, but believe[] removal is clearly and easily
warranted on another basis.” Id. at 1542. This necessarily
contemplates appellate jurisdiction even when a case was not
24 BLUMBERGER V. TILLEY
properly removed under § 1442. Adopting a contrary
reading would render BP pure dicta in its entirety: If a
proper § 1442 removal was required to confer appellate
jurisdiction over the entire remand order, an appellate court
would have no need to consider the other grounds for
removal on appeal, as § 1442 would already supply a
permissible basis for removal. If § 1442 removal was
improper, the court would have no appellate jurisdiction,
including jurisdiction to consider the other bases for
removal. The only way to make sense of BP is to
acknowledge that there might be some instances when the
§ 1442 basis for removal is infirm but the court of appeals
nevertheless retains jurisdiction to review the whole remand
order.
We recently applied this logic to a similar set of
circumstances in Friedenberg. The defendants sought
removal on both § 1442 and § 233 grounds, but the § 1442
removal was untimely. The plaintiffs, however, “failed to
raise their timeliness objection within the statutory 30-day
deadline.” Friedenberg, 68 F.4th at 1121. We concluded
that they had waived their objection and that the case had
therefore been removed pursuant to § 1442. Accordingly,
we had appellate jurisdiction to review the defendants’ § 233
arguments. See id. at 1124. Here, of course, the government
did object to the untimeliness of the § 1442 removal. But for
the reasons we have already explained, that merely
preserved the possibility for remanding on timeliness
grounds—it did not alter the fact that the case had been
removed pursuant to § 1442 for the purposes of establishing
our appellate jurisdiction.
We are not oblivious to the policy-laden concerns
espoused by the government in response. The government
fears strategic gamesmanship insofar as “defendants might
BLUMBERGER V. TILLEY 25
seek to remove cases like this one at any point” under an
untimely § 1442 removal for the sole purpose of preserving
appellate jurisdiction over the entire remand order. But such
policy arguments cannot—and should not—change our
conclusion here. First, “the statute tempers its obvious
concern with efficiency when it comes to cases removed
pursuant to § 1442 . . . . For that subset of cases, Congress
has expressed a heightened concern for accuracy, authorized
appellate review, and accepted the delay it can entail.” BP,
141 S. Ct. at 1542. Second, Congress has already crafted
deterrents to frivolous invocations of § 1442, including by
allowing “a district court [to] order a defendant to pay the
plaintiff’s costs and expenses (including attorney’s fees) if it
frivolously removes a case from state court. Additionally,
the Federal Rules of Civil Procedure allow courts to sanction
frivolous arguments made in virtually any context.” Id. at
1542–43. Third, these policy concerns cannot trump the text
of the statute; “[t]o the extent that . . . these other measures
[are] insufficient, Congress is of course free to revise its
work anytime. But that forum, not this one, is the proper
place for such lawmaking.” Id. at 1543. Finally, the other
bases for removal still need to be timely. Otherwise, the
appellate court will simply not reach the substantive validity
of any other basis for removal when reviewing the entire
remand order.
In sum, we conclude that we have appellate jurisdiction
to wade into the § 233 dispute notwithstanding any
untimeliness in Dr. Tilley’s § 1442 removal.
III. SECTION 233
At last, we return to the thicket of § 233. It is hardly a
model of clarity, so we proceed with caution in addressing
this central question: Was the Attorney General required
26 BLUMBERGER V. TILLEY
under § 233(l)(1) to inform the state court of Dr. Tilley’s
deemed status for 2018, such that the government was
obligated to remove the case to federal court? 5 We answer
in the affirmative. In Part III.A, we show why the text of the
statute compels this conclusion. In Part III.B, we explain
how our interpretation also finds support in the presumption
of judicial review. In Part III.C, we consider what remedy
Dr. Tilley has—if any—to enforce the government’s
removal obligation.
A. Text of § 233
Section 233(l)(1) instructs the Attorney General to
appear in state court within 15 days of receiving notice of an
action against a deemed employee. In making that
appearance, the Attorney General must “advise [the state]
court as to whether the Secretary has determined under
subsections (g) and (h), that such entity . . . [or] employee
. . . is deemed to be an employee of the Public Health Service
for purposes of this section with respect to the actions or
omissions that are the subject of such civil action or
proceeding.” 42 U.S.C. § 233(l)(1). All parties agree that if
the Attorney General advises the state court in the
affirmative, “[s]uch advice shall be deemed to satisfy the
provisions of subsection (c) that the Attorney General certify
that an . . . employee . . . was acting within the scope of their
employment,” id., which in turn requires the Attorney
General to remove the action to federal court, id. § 233(c).
5
Our dissenting colleague implies that this question is not properly
before us on appeal. See Dissent at 55–56, 59. We believe it is. The
parties extensively briefed whether the Attorney General’s notice was
sufficient under § 233(l)(1), and, as a corollary, whether the Attorney
General was obligated to remove the case. The issue was also raised
repeatedly at oral argument.
BLUMBERGER V. TILLEY 27
The action proceeds as a “tort action brought against the
United States” under the FTCA. Id. Once the case has been
removed, the district court may conduct a hearing on a
motion to remand filed by any party. Id.
The parties dispute precisely what the advice required by
subsection (l)(1) demands of the Attorney General. Dr.
Tilley urges us to focus on the phrase “whether the Secretary
has determined . . . that such . . . employee . . . is deemed to
be an employee of the Public Health Service.” On Dr.
Tilley’s reading of § 233(l)(1), the Attorney General was
obligated to advise the state court that the Secretary had
deemed Dr. Tilley to be a PHS employee during 2018 and
should have removed the case to federal court on that basis
pursuant to § 233(c). The government and Blumberger
contest this reading, instead focusing on the phrase
“deemed . . . with respect to the actions or omissions that are
the subject of such civil action or proceeding.” In their view,
this advice requirement is a de facto scope-of-employment
certification, but one made by the Secretary and not the
Attorney General.
Unfortunately, “both sides have tendered plausible
constructions of a text . . . [that is] far from clear.” De
Martinez v. Lamagno, 515 U.S. 417, 434 (1995). The answer
lies somewhere in the middle, but it is closer to Dr. Tilley’s
position. In the end, we conclude that subsection (l)(1)
requires the Attorney General to provide positive advice to
the state court when the employee was deemed for the time
period at issue and the lawsuit arises out of a class or
category of medical conduct for which the employee was
deemed.
Our analysis of the text proceeds in three parts. We first
reiterate the distinction between the Secretary’s prospective
28 BLUMBERGER V. TILLEY
deeming decision and the Attorney General’s ex-post
coverage determination. Then, we explain why § 233(l)(1)’s
reference to “the actions or omissions that are the subject” of
the lawsuit refers to the general categories of conduct for
which a person may be deemed under § 233(g). We
conclude by showing the error of treating § 233(l)(1) as a de
facto scope-of-employment decision.
1. “Deemed” vs. “covered”
Before addressing § 233(l)(1) itself, we must reiterate a
distinction between a “deemed” employee and a “covered”
employee. That distinction runs throughout FSHCAA and is
key to unlocking the statute’s meaning. An employee’s
“deemed” status is a prospective decision made by the
Secretary of HHS to treat the employee as if he were an
employee of the PHS. See 42 U.S.C. § 233(g)(1)(A). The
deeming decision is made before any litigation is filed; it is
an ex-ante determination made on a yearly basis as to an
employee’s status. Id. “Once the Secretary makes a
determination that an . . . employee . . . of an entity is
deemed to be an employee of the Public Health Service for
purposes of this section, the determination shall be final and
binding upon the Secretary and the Attorney General . . . .”
Id. § 233(g)(1)(F).
Being deemed a PHS employee, however, does not
automatically entitle the employee to immunity from suit.
Deemed PHS employees—like regular PHS employees—
receive immunity only from actions that occurred “within
the scope of [their] office or employment at the time of the
incident out of which the suit arose.” Id. § 233(c). The
“scope of employment” determination is the Attorney
General’s to make. Id.; see also 28 U.S.C. § 2679(d)(1)
(similar). Only certain actions or omissions are therefore
BLUMBERGER V. TILLEY 29
“covered.” See Coverage, Black’s Law Dictionary (12th ed.
2024) (“Inclusion of a risk under an insurance policy,” and
“is often used interchangeably with insurance or
protection.”). We repeat: “Deemed” and “covered” are
different determinations made by different department
heads. The first denotes whether the Secretary has
determined that a qualified entity’s employees have PHS
status for a “calendar year.” 42 U.S.C. § 233(g)(1)(A). The
second, whether the Attorney General has determined that a
PHS employee was acting within the scope of his
employment “at the time of the incident out of which the suit
arose.” Id. § 233(c).
The division of labor that Congress has made between
the Secretary (who determines an entity’s deemed status) and
the Attorney General (who determines an employee’s
coverage status) reflects the unique expertise of the two
actors. HHS possesses comparative expertise in
administering healthcare policies and services. See, e.g.,
Goffney v. Becerra, 995 F.3d 737, 746 (9th Cir. 2021)
(recognizing HHS’s “core expertise . . . [in] the
administration of the Medicare program”). In administering
FSHCAA, the agency draws from that expertise when
deciding whether to deem an entity a PHS employee. Before
approving a deeming application, the Secretary must have
“reviewed and verified professional credentials, references,
claims history, fitness, professional review organization
findings, and license status of its physicians and other
licensed or certified health care practitioners,” 42 U.S.C.
§ 233(h)(2), and he must ensure that the entity “has
implemented appropriate policies and procedures to reduce
the risk of malpractice,” id. § 233(h)(1). The Attorney
General, by contrast, possesses expertise in litigation
involving the United States. He is charged with vindicating
30 BLUMBERGER V. TILLEY
the interests of the United States in court and defending the
public fisc; indeed, FSHCAA tasks the Attorney General
with “defend[ing] any civil action or proceeding brought in
any court against any person” covered by the statute. Id.
§ 233(b). The Attorney General is intimately familiar with
the legal doctrine governing scope of employment in tort
cases. See id. § 233(c); see also, e.g., 28 U.S.C. § 2679(c)
(“The Attorney General shall defend any civil action or
proceeding brought in any court against any employee of the
Government . . . .”). The different actors are tasked with
different responsibilities, reflecting their different expertise.
The Secretary makes the ex-ante deeming decision by
relying on his public health expertise; the Attorney General
makes the ex-post scope-of-employment certification by
relying on his experience defending the United States’s
interests in court. The logic of the statute depends on
policing the boundaries between the Secretary’s deeming
decision and the Attorney General’s coverage determination.
The Third Circuit’s recent nonprecedential decision in
Doe v. Centerville Clinics Inc., No. 23-2738, 2024 WL
3666164 (3d Cir. Aug. 6, 2024) (nonprecedential), illustrates
the dangers of eliding this distinction. There, the Third
Circuit rejected an argument by Centerville Clinic that,
“because it was a ‘deemed’ PHS employee under § 233 when
the events giving rise to this action occurred, it ha[d] the
right to remove and removal under § 233(l)(1) should be
automatic upon the Attorney General’s appearance.” Id. at
*2. The court accused Centerville of “misread[ing] the
statute” by “conflating the Attorney General’s prior deeming
determination with its specific coverage determination.” Id.
But as we have emphasized, the Secretary—not the Attorney
General—makes the prior deeming determination. Indeed,
the Secretary’s deeming determination is binding on the
BLUMBERGER V. TILLEY 31
Attorney General. See 42 U.S.C. § 233(g)(1)(F). Congress
understood the difference between the Secretary’s decision
deeming a facility qualified under § 233(g)(1)(A) and the
Attorney General’s litigation-specific decision under
§ 233(c) that a deemed employee was covered with respect
to a particular incident. The Attorney General’s ex-post
scope-of-employment determination is relevant to whether
the defendant is ultimately covered—not whether the
defendant has been deemed. As we explain next, § 233(l)(1)
obligates the Attorney General to report on the Secretary’s
deeming decision, not to report the Attorney General’s
ultimate coverage decision.
2. Section 233(l)(1) refers to enumerated categories of
medical conduct
With the important distinction in mind between being
deemed and being covered, we now consider § 233(l)(1).
Many of the traditional tools of statutory interpretation we
have at our disposal point in different directions when
applied to § 233(l)(1). The weight of textual support for
each side, however, is not in equipoise; the statute’s text and
structure generally favor a reading of subsection (l)(1) that
requires the Attorney General to advise the state court
whether the employee was deemed a PHS employee by the
Secretary for the relevant time period and was providing the
categories of medical services for which he was deemed.
To start, the statute’s operative language focuses on the
Secretary’s ex-ante deeming decision—not the Attorney
General’s ex-post coverage decision. Subsection (l)(1)
requires the Attorney General to report “whether the
Secretary has determined under subsections (g) and (h)” that
the employee is “deemed” to be a PHS employee. 42 U.S.C.
§ 233(l)(1). As we have explained, “deemed” is a value-
32 BLUMBERGER V. TILLEY
laden term in the context of FSHCAA, referring to the
decision by the Secretary to treat certain entities as PHS
employees for a calendar year. Subsection (l)(1)’s cross-
references to subsections (g) and (h) confirm as much,
referring expressly to the provisions of FSHCAA governing
the Secretary’s prospective deeming decision. See, e.g., id.
§ 233(g)(1)(A) (“[S]ubject to the approval by the Secretary
. . . [an employee] shall be deemed to be an employee of the
Public Health Service for a calendar year . . . .”).
The Secretary’s ex-ante deeming decision applies with
respect to certain categories of acts or omissions. The statute
imbues the phrase “actions or omissions” with a particular
meaning. Full- and part-time employees are deemed with
respect to “the performance of medical, surgical, dental, or
related functions.” Id. § 233(a). Part-time contractors,
however, are deemed only with respect to “services in the
fields of family practice, general internal medicine, general
pediatrics, or obstetrics and gynecology.” Id.
§ 233(g)(5)(B). A full-time heart surgeon at a deemed entity
is deemed even with respect to dental functions. If she
performs a root canal on a patient and is sued for medical
malpractice arising from that procedure, she is deemed with
respect to the acts or omissions giving rise to the suit—
although she might not be covered if she was acting beyond
the scope of her employment as a heart surgeon. If the heart
surgeon is a part-time contractor of the entity, she would
neither be deemed nor covered with respect to the dental
procedure. The Secretary’s prospective deeming decision
thus applies with respect to only certain classes of acts or
omissions, which may differ depending on one’s
employment status.
Friedenberg corroborates this reading of the statute.
There, “Plaintiffs alleged negligence and wrongful death
BLUMBERGER V. TILLEY 33
claims against Defendants for violating their duty to report a
court-ordered . . . patient’s refusal to comply with the
medical terms of his probation.” 68 F.4th at 1118. The
defendants removed the action to federal court, claiming
§ 233 immunity as deemed PHS employees. Id. The district
court rejected their immunity argument, reasoning that the
defendants’ deemed status applies only with respect to
plaintiffs who are also patients of the deemed entity. Id.
We reversed. Although we were not construing the scope
of § 233(l)(1), we noted that “§ 233 immunity does not turn
on who brings the claim, but rather whether the conduct
giving rise to the claim arose out of the Defendants’
performance of ‘medical, surgical, dental, or related
functions.’” Id. at 1125–26 (quoting 42 U.S.C. § 233(a)).
We continued, “the statute contemplates the types of actions
for which deemed PHS employees are covered . . . . [T]he
claim must result from the performance of these services.”
Id. at 1126; see also id. at 1127 (“[D]eemed PHS employees
are entitled to immunity from claims resulting from
providing ‘medical, surgical, dental, or related’ services to
‘patients’ . . . .” (quoting 42 U.S.C. § 233(a), (g)(1)(B)); id.
(“[A]s long as a claim is derived from providing services to
subjects of the healthcare provider, the deemed PHS
employee is immune from suit.”). Reading Friedenberg in
combination with § 233(l)(1) confirms that the Attorney
General must notify the state court whether the defendant
was deemed during the relevant time period and whether the
complaint arises out of the performance of services listed in
§ 233(a) (for all employees and full-time contractors) or
§ 233(g)(5)(B) (for all part-time contractors).
Section 233(i) bolsters our conclusion that “actions or
omissions” is a categorical status that relates to the effect of
the ex-ante deeming decision. “Notwithstanding
34 BLUMBERGER V. TILLEY
subsection (g)(1)”—the prospective deeming section—the
Attorney General may, in consultation with the Secretary,
categorically exclude an employee from the PHS-deemed
status of his employer “if treating such individual as such an
employee would expose the Government to an unreasonably
high degree of risk of loss.” Id. § 233(i)(1). Having made
such a determination, the Attorney General notifies the
employee, and the exclusion “appl[ies] only to acts or
omissions occurring after the date such notice is received.”
Id. § 233(i)(2) (emphasis added). In this context, “acts or
omissions” is tethered to the class of services for which the
employee was previously deemed. It is not a synonym for
scope of employment but is instead a categorical, forward-
looking phrase.
It is through this lens that we understand
subsection (l)(1)’s phrase, “deemed . . . with respect to the
actions or omissions” giving rise to the lawsuit. A defendant
satisfies these requirements if he was deemed for the
relevant time period and was providing services for which
§ 233 would supply immunity. In those cases, the Attorney
General is required to provide positive notice to the state
court. The Attorney General may reply in the negative if the
acts or omissions identified in the complaint fall outside the
category of services for which the defendant is deemed, such
as a part-time contractor sued for negligent dental care. The
Attorney General may also reply in the negative if the
defendant was not deemed for the time period encompassing
the relevant acts or omissions. We note that the “with respect
to the actions or omissions” language will most often apply
in cases involving part-time contractors, because their § 233
immunity is limited to specific categories of services. Full-
and part-time employees, however, are generally covered for
all “medical, surgical, dental, or related functions,” id.
BLUMBERGER V. TILLEY 35
§ 233(a), so when a plaintiff brings a medical malpractice
suit against an employee for actions that occurred during the
deemed time period, the “actions or omissions” limitation
will play almost no role. 6
3. Section 233(l)(1) does not entail a scope-of-
employment determination
The Attorney General advances a contrary reading of the
statute, urging that the phrase “with respect to the actions or
omissions that are the subject of [the] civil action or
proceeding” is equivalent to a scope-of-employment
assessment, but one made by the Secretary. We decline to
adopt this reading for several reasons.
First, we apply “the meaningful-variation canon.” Sw.
Airlines Co. v. Saxon, 596 U.S. 450, 457 (2022) (citing
Antonin Scalia & Bryan A. Garner, Reading Law 170
(2012)). Section 233 uses the phrase “scope of
employment” in several places. E.g., 42 U.S.C. § 233(a),
(c), (f). We assume this variation in language was intentional
and that Congress did not intend to treat “actions or
omissions” synonymously with “scope of employment.”
Significantly, the phrase “scope of employment” is used in
§ 233(l)(1), but it does not appear in the first sentence, which
governs notice to the state court. Instead, it appears in the
6
Our reading does not render this language superfluous, contrary to the
dissent’s suggestion, see Dissent at 63–64, because the provision still
does substantial work in cases involving part-time contractors.
Regardless, “even if there is some surplusage, the [Supreme] Court has
stated that ‘[r]edundancy is not a silver bullet’ when interpreting
statutes.” Oklahoma v. Castro-Huerta, 597 U.S. 629, 649 (2022) (second
alteration in original) (citation omitted). Particularly in a statute of this
complexity, “some degree of statutory redundancy is not unusual.”
Marquez-Reyes v. Garland, 36 F.4th 1195, 1204 (9th Cir. 2022).
36 BLUMBERGER V. TILLEY
second sentence: “Such advice shall be deemed to satisfy
the provisions of subsection (c) that the Attorney General
certify that an [entity or employee] was acting within the
scope of their employment or responsibility.” Reading these
two sentences together, when the Attorney General advises
the state court of the deemed status of the employee, “[s]uch
advice shall be deemed” to mean that the employee was
acting within the scope of his employment. Id. § 233(l)(1)
(emphasis added). The advice is not itself a final
determination that the employee was acting in the scope of
his employment. He is simply deemed to be such. See
Sturgeon v. Frost, 139 S. Ct. 1066, 1081 (2019) (noting that
“deemed” creates a useful legal fiction to treat “something
to be what it is not” (citation omitted)); Deem, Black’s Law
Dictionary (7th ed. 1999) (“To treat (something) as if . . . it
were really something else.”). It is a rebuttable presumption,
a categorical consequence of the Secretary’s deeming
decision, and is subject to the Attorney General’s further
inquiry. The Attorney General may certify “at any time” that
the defendant was acting within the scope of his
employment, or the Attorney General may move in the
federal district court to remand the case “on the merit that
the case so removed is one in which a remedy by suit within
the meaning of subsection (a) . . . is not available against the
United States.” 42 U.S.C. § 233(c). In contrast to the
Secretary’s deeming decision, the question of scope of
employment is one that the Attorney General must make. Id.
Our dissenting colleague concedes that there is
meaningful variation between the phrases “actions or
omissions” and “scope of employment.” See Dissent at 65.
The inference she draws runs in the opposite direction,
however; she suggests that “actions or omissions” includes
several components, including scope of employment. See
BLUMBERGER V. TILLEY 37
id. For support, Judge Desai points to 42 C.F.R. § 6.6(c),
which provides, “With respect to covered individuals, only
acts and omissions within the scope of their employment . . .
are covered.” It is tempting to read this regulation as
embedding the scope of employment certification within the
phrase “acts and omissions.” See Dissent at 63–64. But we
must resist that temptation lest we conflate distinct concepts
and phrases. The statute speaks of people who are
“deemed . . . with respect to the actions or omissions that are
the subject of such civil action or proceeding.” 42 U.S.C.
§ 233(l)(1) (emphasis added). The regulation speaks to
“covered individuals,” 42 C.F.R. § 6.6(c) (emphasis added),
not deemed individuals. Those phrases have different
meanings. Indeed, the statute uses the phrase “covered
person” elsewhere, but not in § 233(l)(1). See, e.g., 42
U.S.C. § 233(p)(1), (p)(7)(B). A covered individual has
immunity from suit. But as we have explained, mere
deeming status does not guarantee coverage. The regulation
also defines the phrase “[c]overed acts and omissions,” id.
§ 6.6 (emphasis added), not “actions or omissions that are
the subject of” the lawsuit, 42 U.S.C. § 233(l)(1). A person
might be deemed with respect to the actions that give rise to
the lawsuit and yet not be immune because only actions
within the scope of employment are covered.
Second, and relatedly, the information the Attorney
General must give is “whether the Secretary has determined”
the deemed status of the employee under subsection (g). Id.
§ 233(l)(1) (emphasis added); see id. § 233(g)(1)(A). As
explained above, that refers to the ex-ante deeming decision
made by the Secretary of HHS. The government’s reading
presupposes an additional deeming decision by the
Secretary—one that occurs after litigation has commenced
and applies with respect to the “actions or omissions” giving
38 BLUMBERGER V. TILLEY
rise to the suit. The dissent adopts that view, too, by
suggesting that the phrase “acts or omissions” includes as a
necessary component a scope of employment certification.
See Dissent at 65. The statute, however, nowhere provides
for such an ex-post deeming decision by the Secretary, only
an ex-post scope-of-employment certification by the
Attorney General in subsection (c). 42 U.S.C. § 233(c).
Because subsection (l)(1) cross-references the Secretary’s
prospective deeming decision, we are satisfied that it does
not create some sort of additional decision by the Secretary.
For that reason, Allen v. Christenberry, 327 F.3d 1290,
1295 (11th Cir. 2003), has little to offer us here. The
Attorney General and Blumberger cite Allen for the
proposition that “[t]he statute does not provide for removal
upon notification that no decision has been reached yet.” Id.
at 1295. The dissent follows their lead, reading Allen to
foreclose our conclusion that the Attorney General was
obligated to remove this case. See Dissent at 58. But Allen
involved a unique set of circumstances not present here. The
Secretary had received a deeming application by the doctors,
but it had not yet made an ex-ante deeming determination by
the time the lawsuit was filed. The notice HHS sent to the
doctors instead “stated that the Secretary of HHS was still
considering whether to deem them employees of the
PHS. . . . [N]o decision had been made as of that date.”
Allen, 327 F.3d at 1295. The Attorney General appeared
within fifteen days of the lawsuit, but it “did not advise the
court of any determination by HHS, because none had been
made as of that time.” Id. at 1294. Allen says nothing about
whether the statute contemplates an ex-post deeming
decision by the Secretary, nor does it say anything about
whether the statute authorizes removal even when the
BLUMBERGER V. TILLEY 39
Attorney General has not made a final decision about scope
of employment.
Third, that the statute allots only 15 days for the Attorney
General to make an appearance and give the required advice
after receiving notice of the suit weighs against the Attorney
General’s construction of § 233. That is a very compressed
timeframe in which to make a full-blown scope-of-
employment assessment. Such a requirement would
obligate the Attorney General to receive notice of the case
from HHS, conduct a full-blown investigation into the
circumstances of the suit (which would include identifying
and interviewing witnesses, reviewing employment
contracts, and gathering other documents), render a scope-
of-employment determination, communicate that decision to
the Secretary of HHS, wait for the Secretary’s decision, and
then ultimately advise the state court of the Secretary’s
determination. Even if such expediency were possible, it
makes more sense to construe § 233(l)(1) as requiring a
simple up-down certification to the state court that the
defendant has been deemed a PHS employee for the time
period in question with respect to the category of services
identified in the complaint. That requires access to only two
documents—the deeming notice issued by HHS and the
complaint. The Attorney General then has time to decide
whether the deemed employee was acting within the scope
of his employment, and he may argue to the federal district
court upon removal that the case should be remanded
because the conduct at issue fell outside the scope of the
defendant’s employment. See id. § 233(c).
Fourth, it makes sense that Congress would have placed
the onus for notifying the state court on the Attorney General
and not on the Secretary or the employee. If the United
States is to be substituted in for the employee, the Attorney
40 BLUMBERGER V. TILLEY
General is responsible for defending the PHS in court, not
the Secretary. Moreover, in many cases, the employee will
likely be unaware of his deemed status at the time the suit is
filed. Even if the medical center ultimately corresponds with
the Secretary of HHS, the employee may be entirely
oblivious to his status and the entity’s communication. The
Attorney General’s notice of the employee’s deemed status
serves to advise not only the state court, but also the
employee, of the potential for § 233 immunity.
These principles are on full display in this case. Eisner
notified the Secretary of HHS of the suit against Dr. Tilley,
and the Secretary notified the Attorney General. Within 15
days, the Attorney General was obligated to advise the state
court whether the Secretary had deemed Dr. Tilley to be a
PHS employee during 2018 and whether the complaint arose
out of “the performance of medical, surgical, dental, or
related functions.” This was a simple up-or-down decision.
It was a question of Dr. Tilley’s legal status. In this case, the
question of Dr. Tilley’s status could be answered by looking
at the “Notice of Deeming Action” issued by HHS’s Health
Resources and Services Administration (HRSA), and the
complaint. HRSA issued the notice on August 11, 2017, to
Eisner. The notice covered Eisner and its employees from
January 1 to December 31, 2018, and recited that it was
issued pursuant to 42 U.S.C. § 233(g)–(n). The notice
further stated that it covered Eisner’s employees “for
damage for personal injury, including death, resulting from
the performance of medical, surgical, dental, or related
functions.” And the complaint clearly states that
Blumberger’s cause of action arose out of conduct that is
medical or surgical in nature, alleging that Dr. Tilley
“negligently failed to provide proper medical care.”
BLUMBERGER V. TILLEY 41
Despite the clarity of those documents, the Attorney
General failed to give the state court notice in July 2021 that
Dr. Tilley had been deemed a PHS employee during 2018
and was providing medical services of the type for which he
might enjoy immunity from malpractice liability. Instead,
the Attorney General advised the state court that Dr. Tilley’s
deemed status was “under consideration.” A year later, in
July 2022, the Attorney General provided an amended notice
to the state court. This time, it misleadingly advised the state
court that Dr. Tilley was “not deemed to be an employee of
the Public Health Service for purposes of 42 U.S.C. § 233
with respect to the actions or omissions that are the subject
of the above captioned action.” We assume that the notice
meant to state that Dr. Tilley was not acting within the scope
of his employment at the time of the incident out of which
the suit arose. See 42 U.S.C. § 233(c). But, as discussed,
the Attorney General need only have confirmed that Dr.
Tilley had been deemed and that the lawsuit arose out of a
category of covered services.
To be clear, nothing in the statute precludes the Attorney
General from also reporting its coverage determination to
the state court, even simultaneously with the § 233(l)(1)
advisal to the state court that an employee has been deemed.
There is nothing inappropriate with the Attorney General
reporting in the same notice both its own litigation-related
coverage decision and the Secretary’s prospective deeming
decision. But it is an employee’s deemed status, not covered
status, that triggers the removal provisions of § 233(l)(1).
Any advice the Attorney General may give to the state court
about its ultimate coverage decision has no legal
consequence—one way or another—under § 233(l)(1). So,
if the Attorney General advises that the defendant was
deemed with respect to the actions or omissions giving rise
42 BLUMBERGER V. TILLEY
to the suit but that the defendant was not acting within the
scope of his employment, removal is necessary. The
Attorney General may then seek “a hearing on a motion to
remand,” id. § 233(c), arguing “that the case so removed is
one in which a remedy by suit within the meaning of
subsection (a) . . . is not available,” id., because the
defendant was not “acting within the scope of his office or
employment,” id. § 233(a). In this case, the Attorney
General could have advised that Dr. Tilley was deemed—but
not covered 7—with respect to the actions or omissions
giving rise to the lawsuit. The Attorney General would then
have had to remove the case under § 233(c), but it could have
sought remand by arguing that Dr. Tilley was not acting
within the scope of his employment during the allegedly
tortious conduct. But as we have discussed, the Attorney
General blended the two inquiries, inaccurately reporting Dr.
Tilley’s deemed status when it intended to report its ultimate
coverage determination.
The dissent claims that our “interpretation is
impractical” by “compel[ling] the Attorney General to
replace a defendant and remove a case even when the
defendant is obviously not covered.” Dissent at 66. Even if
those concerns were relevant in our interpretive endeavor,
we believe the dissent’s fears are overblown. If the “even
when the defendant obviously is not covered,” id. at 66, a
party may decide not to oppose remand to the state court. In
those cases, there are costs to opposing remand. “An order
remanding the case may require payment of just costs and
actual expenses, including attorney fees,” if a party
7
We express no view as to whether Dr. Tilley was acting within the scope
of his employment, or otherwise covered, with respect to the actions or
omissions giving rise to the lawsuit.
BLUMBERGER V. TILLEY 43
baselessly opposes the government’s motion to remand. 28
U.S.C. § 1447(c); see also BP, 141 S. Ct. at 1542. And “the
Federal Rules of Civil Procedure allow courts to sanction
frivolous arguments made in virtually any context.” BP, 141
S. Ct. at 1543. Regardless, although the dissent is correct
that our interpretation may lead to certain inefficiencies, our
sole “task is to discern and apply the law’s plain meaning as
faithfully as we can, not ‘to assess the consequences of each
approach and adopt the one that produces the least
mischief.’” Id. (citation omitted).
In sum, the Attorney General did not give the state court
timely notice of the Secretary’s decision, as required by
§ 233(l)(1). Had it done so, the Attorney General would
have been obligated to remove the case to federal court. If
the Attorney General subsequently determined before trial
that Dr. Tilley was not acting within the scope of his fictive
PHS employment, the Attorney General was free to seek
remand to state court. Id. § 233(c). And Dr. Tilley would
have been entitled to a hearing in a federal court to determine
his status. Id.
B. The Presumption of Reviewability
A contrary reading of the statute would effectively
insulate the Attorney General’s deeming advice to the state
court—and the ultimate decision not to certify scope of
employment—from judicial review. If subsection (l)(1)
allows the Attorney General to advise in the negative
because it decides that the employee was not acting within
the scope of his employment, the employee has no
meaningful forum in which to challenge the government’s
failure to certify scope of employment.
There are a number of reasons why we should decline a
reading of FSHCAA that would deprive an employee of a
44 BLUMBERGER V. TILLEY
federal hearing to determine his status. First, FSHCAA itself
contemplates a federal forum for resolving any disputes over
the employee’s PHS status. It expressly provides for a
federal hearing in two instances. First, if the Attorney
General removes the case from state court to federal district
court, the court may conduct “a hearing on a motion to
remand.” Id. § 233(c). Second, if the Attorney General fails
to appear in state court, the defendant-employee may remove
the case and the district court must conduct a hearing and
make “a determination[] as to the appropriate forum.” Id.
§ 233(l)(2). We are reluctant to read into FSHCAA a path
by which the Attorney General can avoid a federal forum for
such a hearing.
The dissent (at 68–69) and government point out,
properly, that the Westfall Act provides expressly for a
hearing in the event that the Attorney General refuses to
certify scope of employment for federal employees who are
sued. See 28 U.S.C. § 2679(d)(3) (“In the event that the
Attorney General has refused to certify scope of office or
employment under this section, the employee may at any
time before trial petition the court to find and certify that the
employee was acting within the scope of his office or
employment.”). The dissent and government also point out,
again correctly, that FSHCAA contains no such explicit
provision, and so, they argue, we should assume that
Congress meant to preclude judicial review of refusal-of-
coverage decisions under § 233.
The narrow construction of § 233 by reference to
§ 2679(d)(3) is plausible, but it is not so unequivocally clear
as to overcome the Supreme Court’s strong presumption in
favor of judicial review. The case most directly on point is
De Martinez v. Lamagno, 515 U.S. 417 (1995), which
involved a challenge to the status of a federal employee
BLUMBERGER V. TILLEY 45
under the Westfall Act. In 1991, Dirk Lamagno, a Drug
Enforcement Administration agent, collided with Katia De
Martinez’s car in Colombia—allegedly while Lamagno was
intoxicated. Because Lamagno enjoyed diplomatic
immunity from suit in Colombian courts, De Martinez filed
a diversity action in U.S. District Court for the Eastern
District of Virginia. Id. at 420–21. In relevant part, like
FSHCAA, the Westfall Act authorizes the Attorney General
to certify that an employee “was acting within the scope of
his office or employment at the time of the incident out of
which the claim arose.” 28 U.S.C. § 2679(d)(1). If the
Attorney General so certifies, the United States is substituted
as the defendant, the employee is dismissed from the action,
and the case then proceeds as an FTCA action against the
government. See De Martinez, 515 U.S. at 419–20.
In Lamagno’s case, the Attorney General certified that
Lamagno was acting within the scope of his employment at
the time of the accident. Id. at 421. This certification would
have been fatal to De Martinez’s tort claim because the
FTCA’s waiver of sovereign immunity contains an exception
for claims arising in a foreign country. See 28 U.S.C.
§ 2680(k). So, if the United States were substituted as the
defendant, De Martinez would have been “left without a tort
action against any party.” De Martinez, 515 U.S. at 420. De
Martinez therefore sought judicial review of the Attorney
General’s scope-of-employment certification.
The Supreme Court ultimately held the scope-of-
employment certification judicially reviewable. To begin,
the Court recognized that “Congress did not address this
precise issue unambiguously, if at all,” and that the statute
was “open to divergent interpretation.” Id. at 424; see id. at
434 (“[B]oth sides have tendered plausible constructions of
a text most interpreters have found far from clear.”). But it
46 BLUMBERGER V. TILLEY
recognized a “strong presumption that Congress intends
judicial review” of such decisions. Id. at 424 (quoting
Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670
(1986)). The Court emphasized that “when a Government
official’s determination of a fact or circumstances—for
example, ‘scope of employment’—is dispositive of a court
controversy, federal courts generally do not hold the
determination unreviewable.” Id. It elaborated, “we have
stated time and again that judicial review of executive action
‘will not be cut off unless there is persuasive reason to
believe that such was the purpose of Congress.’” Id.
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)).
Nothing in the text or history of the Westfall Act indicated
that Congress intended “to make the Attorney General’s
delegate the final arbiter of ‘scope-of-employment’
contests.” Id. at 425.
The Supreme Court’s rationale rejected a negative-
implication argument similar to the one raised here by the
government and dissent. See Dissent at 68–69. In particular,
the Westfall Act provides expressly that an “employee may
at any time before trial petition the court to find and certify
that the employee was acting within the scope of his office
or employment.” 28 U.S.C. § 2679 (emphasis added). The
Westfall Act contains no comparable provision authorizing
an aggrieved plaintiff to petition a court for review of the
Attorney General’s refusal to certify scope of employment.
Relying on the weighty presumption in favor of
reviewability, the Court repudiated the notion that Congress
meant to exclude, by negative implication, a plaintiff from
seeking judicial review merely because the statute provides
unambiguously for one specific form of review.
De Martinez is not a perfect analogue, but it sets forth
principles that are directly applicable here. In De Martinez,
BLUMBERGER V. TILLEY 47
the Attorney General had an incentive to certify
affirmatively Lamagno’s scope of employment; doing so
would have triggered sovereign immunity, thereby shielding
its employee Lamagno from personal tort liability and
without cost to the United States. Here, the Attorney General
has an incentive not to make an affirmative scope-of-
employment certification for the same reason—certifying
Dr. Tilley’s scope of employment would potentially subject
the government to tort liability. And that incentive seems far
stronger in the instant case than in Lamagno’s case. Here,
the government may be liable for the ultimate judgment; in
De Martinez, the government would not have been directly
subject to liability if Lamagno was not acting within the
scope of his employment.
As the dissent correctly observes, the Attorney General’s
decision to certify or not to certify Dr. Tilley’s scope of
employment would not be entirely dispositive of the action,
unlike in De Martinez. See Dissent at 68–69. Blumberger’s
tort action would simply proceed against Dr. Tilley rather
than against the government, so the scope-of-employment
decision matters considerably less to the medical
malpractice plaintiff here than it did in De Martinez.
Someone will have to respond to Blumberger’s claims. But
De Martinez and this case represent two sides of the same
coin: a scope-of-employment certification would essentially
be dispositive of Dr. Tilley’s immunity from suit as a PHS
employee. If the Attorney General made a positive
certification, the United States would be substituted as the
defendant, shielding Dr. Tilley from personal liability
altogether. We do not in any way impugn the integrity of the
Attorney General or his representatives who must make
scope-of-employment decisions. But the Attorney General
has a duty to defend federal employees who are acting in the
48 BLUMBERGER V. TILLEY
scope of their employment and, otherwise, to defend the
public fisc by denying the responsibility of the United States.
De Martinez instructs us to “adopt the reading that
accords with traditional understandings and basic principles:
that executive determinations generally are subject to
judicial review.” 515 U.S. at 434. If Congress intended “to
commit the critical ‘scope-of-employment’ inquiry to the
unreviewable judgment of the Attorney General or her
delegate, and thus to alter fundamentally the answer to the
‘who decides’ question,” we would expect Congress to do so
clearly. Id. at 426. But if one thing about § 233 is plain, it
is that Congress did not plainly commit this inquiry to the
unreviewable judgment of the Attorney General.
The government’s and dissent’s argument about the
express review provision in the Westfall Act gives us pause,
but it does not change our bottom line for two reasons. First,
“[t]he force of any negative implication . . . depends on
context.” NLRB v. SW Gen., Inc., 580 U.S. 288, 302 (2017)
(quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 381
(2013)). We are instructed to “assume[] that, when Congress
enacts statutes, it is aware of th[e Supreme] Court’s relevant
precedents.” Bartenwerfer v. Buckley, 598 U.S. 69, 80
(2023). De Martinez, which was decided six months before
§ 233(l)(1) was enacted, reiterated the Court’s 1986
declaration that “federal judges traditionally proceed from
the ‘strong presumption that Congress intends judicial
review.’” 515 U.S. at 424 (citation omitted); see also Pub.
L. No. 104-73, 109 Stat. 780. Put another way, Congress
emphasized a default rule (judicial review), which Congress
could alter only by clear statutory command. See id. at 424–
25. Congress could have repeated the Westfall Act’s express
review provision here; great clarity would have followed.
But in light of the Court’s recent presumption in favor of
BLUMBERGER V. TILLEY 49
judicial review, Congress could well have understood that
federal courts would review the scope of employment
determination unless Congress specified otherwise.
Accordingly, had Congress wanted to depart from that
default rule in FSHCAA, it would have done so in
unambiguous language, not “the statutory fog we confront
here.” Id. at 425.
Second, and following closely from the last point,
Congress is unequivocal when it intends to override the
presumption of judicial review. For example, when dealing
with HHS’s Provider Reimbursement Review Board,
Congress stated in no uncertain terms that “[t]he
determinations and other decisions described in
section 1359ww(d)(7) of this title shall not be reviewed by
the Board or by any court.” 42 U.S.C. § 1395oo(g)(2); see
also, e.g., 26 U.S.C. § 6038A(4)(B) (“[S]uch determination
by the Secretary shall be binding and shall not be reviewed
by any court.”); cf., e.g., 26 U.S.C. § 7436 (“A decision
entered in any proceeding conducted under this subsection
shall not be reviewed in any other court . . . .”). So, although
the negative-implication canon offers some support to the
dissent’s reading, “this principle (‘expressio unius est
exclusion alterius’) can be employed as easily to support the
opposite interpretation.” United States v. Ray, 375 F.3d 980,
990 (9th Cir. 2004). Forced to choose between two negative
implications, we are reluctant to disturb what we view as the
better reading of § 233(l)(1)—that Congress did in fact
provide for a hearing on scope of employment, albeit in a
more convoluted way than in § 2679. That conclusion is
consistent with the principles underlying De Martinez.
Because the force of the negative implication is
relatively weak, the dissent charts another path to avoid the
De Martinez presumption: positing that judicial review
50 BLUMBERGER V. TILLEY
remains available to Dr. Tilley in state court or an APA
action. See Dissent at 70. Neither suggestion withstands
scrutiny. A state-court hearing is unavailing for several
reasons. 8 Nothing in the text of § 233 authorizes such a state
court hearing, unlike § 2679(d)(3). A state-court hearing
might also be at odds with federalism and supremacy
principles. Precedent sharply cabins a state court’s ability to
interfere with the operation of federal administrative power.
See, e.g., Clinton v. Jones, 520 U.S. 681, 691 n.13 (1997);
Hancock v. Train, 426 U.S. 167, 178 (1976). It is hardly
surprising, then, that federal district courts have “exclusive
jurisdiction” over tort actions against the United States. 28
U.S.C. § 1346(b)(1). Allowing a state court to require the
substitution of the United States as a defendant by overriding
the Attorney General’s decision not to certify scope of
employment runs headlong into that exclusive federal
jurisdiction requirement.
The possibility of APA review fares no better and raises
more questions than answers. Is the Attorney General’s
advice to the state court a final agency action for purposes of
the APA? 9 And if the APA were an adequate avenue for
8
At oral argument, the government suggested that it had no opposition
to state-court review of the Attorney General’s decision not to certify
scope of employment. In papers filed with the state court, however, the
government did express opposition: “Unlike the Westfall Act . . . 42
U.S.C. § 233 contains no provision that specifically authorizes a deemed
PHS employee to petition a state court for a scope of employment
certification after denial by the Attorney General.” Dkt. No. 52 Ex. B at
2. We grant Tilley’s requests for judicial notice, Dkt. Nos. 52 & 53, of
the state-court filings relevant to this case. See Fed. R. Evid. 201(b)(2).
9
We have no need to answer that question today, but at least one of our
district court colleagues has answered in the negative. See Pediatric &
Fam. Med. Found. v. U.S. Dep’t of Health & Hum. Servs., No. 17-CV-
732, 2017 WL 8220596, at *7 (C.D. Cal. July 6, 2017).
BLUMBERGER V. TILLEY 51
judicial review, why did the De Martinez Court make no
mention of it when applying the presumption of
reviewability? Moreover, for those who care about the
policy consequences of our decision, an APA action would
create greater inefficiency than it solves. In all likelihood, it
would require a simultaneous, collateral proceeding. Would
the state-court suit be stayed in the interim? Could the state-
court plaintiff participate in the APA action? Would
collateral estoppel limit the arguments that could be made in
one forum or the other? 10 Must the APA action proceed in
the District of Columbia?
In the end, we are satisfied that our reading of § 233(l)(1)
is correct as a textual matter and comports with the Supreme
Court’s admonition that we should construe such provisions
in favor of judicial review of scope-of-employment
decisions.
C. The Appropriate Remedy to Enforce the Government’s
Removal Obligation
The Attorney General was obligated to advise the state
court in the affirmative of Dr. Tilley’s deemed status with
respect to the relevant actions or omissions, so it was also
10
The dissent’s reliance on El Rio Santa Cruz Neighborhood Health Ctr.,
Inc. v. U.S. Dep’t of Health & Hum. Servs., 396 F.3d 1265 (D.C. Cir.
2005), is misplaced. There, the D.C. Circuit considered whether the
statute’s removal provisions create a cause of action to challenge a
negative ex-ante deeming decision—i.e., the Secretary’s decision not to
prospectively and categorically deem all the entity’s physicians
employees of the PHS under § 233(g)(1)(A). An APA action, the court
reasoned, exists to challenge HHS’s prospective deeming decision. See
id. at 1272–73. But El Rio says nothing about the availability of the APA
to challenge the Attorney General’s failure to certify scope of
employment once litigation against a handful of deemed employees has
begun.
52 BLUMBERGER V. TILLEY
obligated to remove the case to federal court. See 42 U.S.C.
§ 233(l)(1) (noting that such advice shall be deemed to
satisfy § 233(c)’s scope-of-employment certification); id.
§ 233(c) (requiring removal by the Attorney General upon
certification that the defendant was acting within the scope
of his employment).
In most cases, the Attorney General would be able to
satisfy this removal requirement “at any time before trial.”
Id. § 233(c). Going forward, we trust that the Attorney
General will act in good faith to remove cases as
expeditiously as possible to avoid unnecessary delay,
expense, and uncertainty. Upon removal, the Attorney
General, defendant, or plaintiff can move within 30 days to
remand the case on the basis that Dr. Tilley was not acting
within the scope of his employment.
In this case, however, the government should have
provided affirmative advice to the state court in July 2021,
within 15 days of receiving notice of the suit against Dr.
Tilley. Instead, it stated that Dr. Tilley’s status was “under
consideration,” and then nearly one year later, it advised the
state court that Dr. Tilley was not deemed a PHS employee
with respect to the actions or omissions giving rise to this
suit. This was incorrect, but it is hard to fault the
government; before our decision today, the advice
requirement of § 233(l)(1) was subject to different
interpretations, each one plausible. Given the significant
time that has passed since the government should have
advised the state court of Dr. Tilley’s status, we choose to
vacate the district court’s order remanding the lawsuit to
state court and we remand this case to the district court for
further proceedings consistent with § 233. See 28 U.S.C.
§ 2106 (“[A] court of appellate jurisdiction may . . . remand
the cause and . . . require such further proceedings to be had
BLUMBERGER V. TILLEY 53
as may be just under the circumstances.”); cf., e.g., United
States v. Bacon, 979 F.3d 766, 769–70 (9th Cir. 2020) (en
banc) (applying the discretion afforded to appellate courts
when fashioning remand remedies). The district court
should, upon a timely motion to remand, hold a hearing to
determine whether “the case so removed is one in which a
remedy by suit within the meaning of subsection (a) . . . is
not available against the United States . . . .” 42 U.S.C.
§ 233(c). At that hearing, the United States is free to contest
whether Dr. Tilley was acting within the scope of his
employment vis-à-vis the alleged acts of negligence.
In light of our disposition, we decline to consider
whether Dr. Tilley’s removal under § 233(l)(2) was
improper, but nothing in Part I of Judge Desai’s dissent casts
doubt on our conclusions above. We similarly decline to
consider whether the Attorney General’s July 2021 notice to
the state court was so inadequate that we should consider the
notice a failure to appear for purposes of § 233(l)(2). Nor do
we decide whether, even if § 233(l)(2) removal was
available to him, Dr. Tilley was required to remove on that
basis within 30 days of the government’s deficient state-
court notice. See 28 U.S.C. § 1446(b)(3).
IV. CONCLUSION
To summarize, we vacate the district court’s order as to
the § 1442 removal and remand for the district court to
determine when Dr. Tilley first knew of his deemed status
for the 2018 year and when he first received the deeming
notice. The district court should then assess the timeliness
of Dr. Tilley’s § 1442 removal under the § 1446(b)(3)
standard. If the district court concludes that Dr. Tilley’s
§ 1442 removal was timely, it should decide whether Dr.
54 BLUMBERGER V. TILLEY
Tilley was acting under a federal officer for purposes of
§ 1442.
Notwithstanding the potential untimeliness of Dr.
Tilley’s § 1442 removal, we have jurisdiction to review the
district court’s § 233 analysis. We conclude that the
Attorney General was obligated under § 233(l)(1) to advise
the state court that Dr. Tilley had been deemed a PHS
employee with respect to the actions or omissions giving rise
to the lawsuit. We reverse the district court’s conclusion that
the Attorney General’s July 26, 2021, state-court notice
satisfied the requirements of § 233(l)(1). The Attorney
General should have removed the case in July 2021 or
shortly thereafter.
We thus vacate the district court’s remand order. “The
district court shall enter an order recalling the remand and
shall notify the Los Angeles County Superior Court that the
district court has resumed jurisdiction over the action.”
Acad. of Country Music v. Cont’l Cas. Co., 991 F.3d 1059,
1070 (9th Cir. 2021). We remand the case for proceedings
consistent with this opinion. See 28 U.S.C. § 2106. Each
party shall bear its own costs.
REVERSED in part, VACATED in part, and
REMANDED.
BLUMBERGER V. TILLEY 55
DESAI, Circuit Judge, dissenting in part:
I respectfully dissent from Section III of the majority’s
opinion addressing removal under 42 U.S.C. § 233. 1 A state
court action may be removed under § 233 in only two
circumstances: (1) the Attorney General can remove the case
after certifying that a “defendant was acting in the scope of
his employment at the time of the incident” giving rise to the
suit, 42 U.S.C. § 233(c), or (2) a defendant can remove the
case if the Attorney General “fails to appear” in state court
“within the time period prescribed” in § 233(l)(1), 42 U.S.C.
§ 233(l)(2). Neither happened here. The Attorney General
appeared in state court within the time period prescribed in
§ 233(l)(1), but he did not certify that Dr. Tilley was acting
in the scope of his employment at the time of the incident
giving rise to Blumberger’s malpractice suit. Thus, the
answer to the only question on appeal concerning § 233—
whether Dr. Tilley properly removed the case to federal
court—is no.
The majority circumvents this otherwise unavoidable
conclusion by addressing an entirely different question:
“Was the Attorney General required under § 233(l)(1) to
inform the state court of Dr. Tilley’s deemed status for 2018,
such that the government was obligated to remove the case
to federal court?” 2 Maj. Op. at 25–26. The majority
1
I agree with the majority that it is unclear on this record whether Dr.
Tilley’s 28 U.S.C. § 1442 removal was timely, but even an untimely
§ 1442 removal gives us appellate jurisdiction to review Dr. Tilley’s
§ 233 removal.
2
The majority claims this question is properly before us because the
“parties extensively briefed whether the Attorney General’s notice was
sufficient under § 233(l)(1).” Maj. Op. at 26 n.5. But the parties
discussed the sufficiency of the Attorney General’s notice when
56 BLUMBERGER V. TILLEY
manufactures this inquiry because it fears that answering the
question presented will lead to gamesmanship in future cases
if the Attorney General timely appears in state court but fails
to certify that the defendant was acting in the scope of his
employment. The majority is not wrong to fear such
potential consequences, but we cannot rewrite the language
of the statute to protect against the possibility of unfortunate
results. Beyond that, the majority’s holding will lead to
absurd and impractical results and unduly burden the
government. Indeed, the majority plucks the word “deemed”
from § 233(l)(1) and reads it in isolation to create a per se
removal rule every time a PHS employee is sued for medical
malpractice, even if the employee was acting outside the
scope of his employment. The majority’s approach erases
language from § 233, eliminates the Attorney General’s role
under the statute, and gives a procedural advantage to
doctors in malpractice cases that belong in state court. I
cannot go along with this approach.
I. Dr. Tilley’s removal under § 233(l)(2) was improper.
The sole question before us regarding § 233 is whether
Dr. Tilley properly removed the case. I would hold that he
did not. Under § 233(l)(1), the Attorney General must appear
within fifteen days and advise the state court whether the
Secretary has deemed the defendant a PHS employee “with
addressing whether Dr. Tilley properly removed under § 233(l)(2) based
on the Attorney General’s alleged failure to appear under § 233(l)(1).
That is the question I address in Section I below, and one the majority
never confronts. It expressly “decline[s] to consider” whether the
Attorney General’s “notice to the state court was so inadequate that we
should consider the notice a failure to appear for purposes of § 233(l)(2)”
or whether “Dr. Tilley’s removal under § 233(l)(2) was improper.” Maj.
Op. at 53. Indeed, the majority sidesteps the question presented in this
case in lieu of one that can produce the majority’s favored result.
BLUMBERGER V. TILLEY 57
respect to the actions or omissions that are the subject of
such civil action or proceeding.” “If the Attorney General
fails to appear in State court within the time period
prescribed under paragraph (1), upon petition of any entity
or officer, governing board member, employee, or contractor
of the entity named, the civil action or proceeding shall be
removed to the appropriate United States district court.” 42
U.S.C. § 233(l)(2).
In July 2021, the Attorney General timely appeared and
advised the state court that whether Dr. Tilley was “deemed”
a PHS employee “with respect to the actions or omissions
that are the subject of the above captioned action” was
“under consideration.” A year later, the Attorney General
updated this notice and advised the court that Dr. Tilley was
“not deemed” a PHS employee “with respect to the actions
or omissions that are the subject of the above captioned
action.”
Dr. Tilley then removed under § 233(l)(2). He argued the
Attorney General “failed to appear” under § 233(l)(1) when
he first advised the court that Dr. Tilley’s coverage status was
still “under consideration.” 3 In Dr. Tilley’s view, the
Attorney General must definitively advise the court whether
Dr. Tilley is covered the first time the Attorney General
appears in state court. Not so. Subsection (l)(1) requires only
that the Attorney General appear in court within fifteen days
after being notified of the filing and advise the court
“whether” the government has made a coverage
determination. The Attorney General did just that: he
3
Dr. Tilley also argued the Attorney General “failed to appear” because
he should have advised the court that Dr. Tilley was covered based solely
on his status as an Eisner employee. But as discussed below, the Attorney
General was not required to do so.
58 BLUMBERGER V. TILLEY
advised the state court that the coverage determination was
“under consideration.”
Section 233 allows a defendant to remove only if the
Attorney General fails to appear within the time prescribed.
It does not allow removal if the Attorney General appears
and advises the court that the defendant is not covered. 42
U.S.C. § 233(l)(2); see El Rio Santa Cruz Neighborhood
Health Ctr., Inc. v. U.S. Dep’t of Health & Hum. Servs., 396
F.3d 1265, 1271 (D.C. Cir. 2005). Nor does it allow
“removal upon notification that no decision has been reached
yet.” Allen v. Christenberry, 327 F.3d 1290, 1295 (11th Cir.
2003). In Allen, the Eleventh Circuit held that the defendant
doctors’ removal was improper because, as here, “[t]he
Attorney General did appear . . . to give notice that no
decision had been made,” yet “the defendant doctors
themselves removed the case to federal court, something the
statute does not permit.” Id. (emphasis added). The majority
contends that Allen “has little to offer us here” because the
Secretary “had not yet made an ex-ante deeming
determination by the time the lawsuit was filed.” Maj. Op. at
38. But just as the Secretary had deemed Eisner a PHS entity
here, in Allen the Secretary had deemed the health center a
PHS entity, and the doctors were contractors of the health
center. Allen, 327 F.3d at 1292. The majority assumes that,
because Dr. Tilley was an Eisner employee and Eisner had
received a deeming notice, removal is a foregone conclusion.
The Eleventh Circuit reversed the district court for making
the same assumption in Allen. Id. at 1293, 1295 (rejecting
the district court’s view that the case “should have been
removed by the Attorney General” because the doctors
“were contractors [of a deemed health center] entitled to the
protections of 42 U.S.C. § 233”).
BLUMBERGER V. TILLEY 59
At bottom, § 233 allows a defendant to remove in only
one circumstance—when the Attorney General fails to
appear. Because that did not happen here, Dr. Tilley’s
removal under § 233(l)(2) was improper.
II. The majority’s manufactured remedy for Dr. Tilley’s
improper removal under § 233 is unsupported.
The majority never addresses whether Dr. Tilley’s
removal under § 233(l)(2) was proper. The only answer to
that question is no, and that should end our inquiry under
§ 233. But instead of deciding that question, the majority
invents a solution for Dr. Tilley’s improper removal by
concluding that the Attorney General should have removed
the case. Even if that were an issue properly before us, the
majority’s conclusion is unsupported. The text of § 233(l)(1)
did not compel the Attorney General to advise the state court
that Dr. Tilley’s status as a “deemed” employee extended to
the conduct alleged in the lawsuit. The majority’s holding to
the contrary distorts the statute’s text, renders much of the
statute superfluous, assumes facts not before us, and is
impractical. And a general policy favoring judicial review of
agency decisions cannot save the majority’s flawed
interpretation.
A. The text of § 233 did not compel the Attorney
General to remove.
Section 233(l)(1) requires that the Attorney General
advise the state court whether the Secretary has deemed the
defendant a PHS employee “with respect to the actions or
omissions that are the subject of such civil action or
proceeding.” This advice to the court also satisfies § 233(c),
which allows the Attorney General to certify that the
defendant was acting in the scope of his employment during
the incident giving rise to the complaint. The Attorney
60 BLUMBERGER V. TILLEY
General’s advice under § 233(l)(1) is thus tied to the specific
conduct alleged in the complaint—it tells the state court
whether the alleged conduct falls under the defendant’s
§ 233(a) coverage as a “deemed” PHS employee.
Indeed, while the Secretary makes a prospective decision
deeming a person eligible for § 233 coverage, that coverage
is limited in many ways that depend on the facts in the
lawsuit. The coverage applies only to injuries “resulting
from the performance of medical, surgical, dental, or related
functions” by a person “acting within the scope of his office
or employment.” 42 U.S.C. § 233(a). And the person’s acts
or omissions must involve services to the health center’s
patients (or non-patients if certain criteria are met) and must
relate to the health center’s grant-supported activities. 42
U.S.C. § 233(g)(1)(C); 42 C.F.R. § 6.6(c), (d).
In other words, the Secretary’s prospective deeming
notice is only a precondition to the government’s ultimate
decision to grant coverage. But whether a particular
employee’s acts or omissions are indeed covered can be
determined only after the lawsuit is filed. Consider a dentist
employed by a deemed health center who “moonlights” as a
plastic surgeon for private clients on the weekends. See
Health Res. & Servs. Admin., HHS, Federal Tort Claims
Act: Health Center Policy Manual, at 8 (explaining that
coverage does not extend to “moonlighting” activities,
defined as “professional activities outside of covered entity
employment responsibilities and is not within the covered
entity’s approved scope of project”). If a state court plaintiff
sued the dentist for performing negligent dental work at the
health center, the Attorney General likely must appear and
remove the case. § 233(c), (l)(1). But if a plaintiff sued the
dentist for a botched surgery performed during his
moonlighting activity, § 233(l)(1) allows the Attorney
BLUMBERGER V. TILLEY 61
General to advise the court that the employee was not
deemed a PHS employee “with respect to the actions or
omissions that are the subject of” the lawsuit. Under the
majority’s new rule, the Attorney General no longer makes a
coverage decision, and removal is required under both
scenarios.
Here, the Secretary deemed Eisner a PHS employee for
calendar year 2018. Consistent with § 233(a), the deeming
notice stated that it covered Eisner for injuries “resulting
from the performance of medical, surgical, dental, or related
functions by PHS employees while acting within the scope
of such employment,” and the coverage “extend[ed] to”
Eisner’s officers, employees, and certain contractors. The
notice did not specify whether any contracts or other criteria
would permit coverage for services provided to non-Eisner
patients. See 42 C.F.R. § 6.6(c), (d); § 233(g)(1)(C).
Blumberger did not sue Eisner. She sued Dr. Tilley—an
Eisner employee—for services he performed at a different,
non-federally funded hospital. As the majority concedes, we
do not know the circumstances of Dr. Tilley’s work at the
other hospital or whether Eisner required him to provide
those services. Maj. Op. at 12 (noting that “the relationship
between the two entities is not readily apparent from this
record”). We only know that the government ultimately
determined that Dr. Tilley was not deemed a PHS employee
“with respect to the acts or omissions” in this lawsuit.
The majority fails to grapple with any of this. It instead
concludes that the Attorney General must do no more than
point to the piece of paper deeming Eisner a PHS entity,
certify that any Eisner employee performing any medical
services for any patient is covered, and remove the case to
federal court. That is not what the statute requires.
62 BLUMBERGER V. TILLEY
First, the majority’s interpretation would render much of
§ 233 meaningless. If the Attorney General must step in and
remove every medical malpractice case when the defendant
is employed by a deemed PHS entity, then what is the point
of subsections (c) or (l)(1)? There would be no reason for the
Attorney General to advise the court whether the defendant
has been “deemed” an employee “with respect to the actions
or omissions” alleged in the case, § 233(l)(1) (emphasis
added), nor would there be any reason for the Attorney
General to certify that the defendant was acting within the
scope of his employment, § 233(c). The majority all but
concedes this. Maj. Op. at 35 (noting that, under its
interpretation, the “acts or omissions” clause in subsection
(l)(1) “will play almost no role” for employees). “Under
accepted canons of statutory interpretation, we must make
every effort not to interpret a provision in a manner that
renders other provisions of the same statute inconsistent,
meaningless or superfluous.” In re HP Inkjet Printer Litig.,
716 F.3d 1173, 1184 (9th Cir. 2013) (cleaned up). Yet the
majority’s interpretation of § 233(l)(1) does just that.
My colleagues spill much ink distinguishing the
Secretary’s “ex-ante” deeming decision from the Attorney
General’s “ex-post” coverage decision. Maj. Op. at 28–31.
This distinction does not support the majority’s reading of
the statute. Although the Secretary makes a prospective
decision deeming PHS employees eligible for § 233
coverage, subsection (l)(1) asks the Attorney General to
advise the court whether that prior deeming decision extends
to “the actions or omissions that are the subject of [the] civil
action or proceeding.” That is, the Attorney General must
review the facts in the complaint and decide whether the
alleged conduct falls within the scope of the Secretary’s
decision deeming the defendant eligible for § 233 coverage.
BLUMBERGER V. TILLEY 63
The majority contends that the Third Circuit’s recent
unpublished opinion in Doe v. Centerville Clinics Inc., No.
23-2738, 2024 WL 3666164, at *1 (3d Cir. Aug. 6, 2024)
“illustrates the dangers of eliding [the] distinction” between
the Secretary’s deeming decision and the Attorney General’s
coverage decision. Maj. Op. at 30. Just the opposite. The
Third Circuit interpreted the plain text of § 233 and
understood the difference between the prior “deeming”
decision and the specific coverage decision under subsection
(l)(1). It correctly explained that “[a] prior annual
determination under § 233(g) that [the defendant] is deemed
a PHS employee—perhaps made well before the conduct
related to the suit occurred—cannot satisfy § 233(l)(1)’s
requirement that the government’s coverage determination
account for the specifics of the conduct related to the
pending lawsuit.” Id. at *2. The majority’s contention that
subsection (l)(1) refers only to the pre-litigation deeming
notice and does not allow the Attorney General to make a
case-specific coverage decision cannot be squared with the
language of the statute.
Second, the majority reads the “acts or omissions” clause
in § 233(l)(1) far too narrowly. The majority contends that
“acts or omissions” refers only to whether the conduct
alleged in the lawsuit involves “medical, surgical, dental, or
related functions.” 42 U.S.C. § 233(a). But that is only one
component of § 233 coverage. A health center’s coverage
extends only to employees who are, among other things:
performing medical, dental, or surgical services; providing
services that relate to the health center’s grant-funded
activities; treating the health center’s patients unless certain
criteria are met; and acting within the scope of their
employment. 42 U.S.C. § 233(a), (g)(1); 42 C.F.R. § 6.6(b)–
(d). The “acts or omissions” at issue in the lawsuit must
64 BLUMBERGER V. TILLEY
satisfy these criteria for the Secretary’s deeming decision to
cover the defendant. Section 233’s implementing regulations
bolster this interpretation. In a section titled “Covered acts
or omissions,” the regulations list these separate components
of § 233 coverage. 42 C.F.R. § 6.6 (emphasis added).
An example highlights the problem with reading “acts or
omissions” as narrowly as the majority suggests. One
coverage requirement is that the employee’s acts or
omissions must occur “on [or] after the effective date of the
Secretary’s” deeming notice. 42 C.F.R. § 6.6(a). If a lawsuit
alleged that an employee performed negligent medical care
before the Secretary’s deeming notice, the Attorney General
could advise the state court under subsection (l)(1) that the
defendant is not deemed an employee for purposes of the
acts or omissions alleged in the case. The majority concedes
as much. Yet under the majority’s view, the Attorney General
cannot advise the state court that a defendant is not deemed
an employee for acts or omissions that fail to satisfy another
component of coverage, such as scope of employment or
services to covered patients. The one exception, in the
majority’s view, is the coverage criteria requiring that the
services are medical, dental, or surgical. This illogical
interpretation finds no support in the language of § 233(l)(1).
The statute broadly asks whether the defendant is deemed an
employee “with respect to the acts or omissions” giving rise
to the complaint. It does not parse out a small subset of
coverage criteria.
Friedenberg v. Lane County does not support the
majority’s reading of “acts or omissions.” 68 F.4th 1113 (9th
Cir. 2023). That case considered the scope of § 233
immunity for deemed health care centers and their
employees. Id. at 1118. But its holding was narrow. It held
only that § 233 coverage does not turn on whether the
BLUMBERGER V. TILLEY 65
plaintiff in the tort action is the patient. Id. at 1126 (“While
the claim must result from the performance of [covered]
services, the claimant need not be a patient nor a recipient of
medical or dental care for a deemed PHS employee to invoke
§ 233 immunity.” (emphasis added)). Instead, “PHS
employees are entitled to immunity from claims resulting
from providing” covered services, regardless of the plaintiff.
Id. at 1127 (citing 42 U.S.C. § 233(a), (g)(1)(B)).
Friedenberg tells us nothing about the scope of “acts or
omissions” in § 233(l)(1).
The majority also posits that “Congress did not intend to
treat ‘actions or omissions’ synonymously with ‘scope of
employment.’” Maj. Op. at 35. True, but that does not justify
the majority’s myopic reading of “acts or omissions.”
Whether a doctor is deemed a PHS employee “with respect
to the acts or omissions” at issue in the lawsuit includes
several components. Scope of employment is only one of
them. It thus makes sense that Congress used the broader
term “acts or omissions” in the first part of subsection (l)(1)
to reference the defendant’s coverage as a deemed PHS
employee, and later used narrower language to reference one
component of that coverage.
Third, the majority assumes facts not before us. Even
after acknowledging that the relationship between Eisner
and the non-federally funded hospital where Dr. Tilley
treated Blumberger “is not readily apparent from this
record,” the majority concludes that Eisner’s status as a
deemed PHS entity extends to Dr. Tilley’s services at the
non-PHS hospital. The majority focuses on § 233(l)(1)’s
reference to “the Secretary,” concluding that this must refer
only to the Secretary’s prospective deeming decision without
considering the conduct alleged in the lawsuit. But again, the
Secretary’s deeming notice is only a precondition to
66 BLUMBERGER V. TILLEY
coverage. The Secretary cannot make a deeming decision
“with respect to the acts or omissions that are the subject of
such civil action or proceeding” before the lawsuit is even
filed. Subsection (l)(1) thus requires that the government
decide whether the Secretary’s prior deeming decision
covers the conduct at issue in the complaint. And here, the
government decided that it did not. The majority assumes
that decision was “incorrect,” Maj. Op. at 52, but nothing in
the record supports that conclusion.
Fourth, the majority’s interpretation is impractical. I
agree with the majority that the government’s scope of
employment decision will often take more than fifteen days.
But the Attorney General can, as he did here, appear and
advise the court that a decision has not yet been made. And
if the government later determines that a defendant’s conduct
is covered, the Attorney General can remove “at any time
before trial” under § 233(c). Although fifteen days is a short
window, it was intended to protect covered employees
against default judgments if the Attorney General failed to
appear. See H.R. Rep. 104–398, at 7 (104th Cong., 1st Sess.
1995). It does not suggest that subsection (l)(1) should be
interpreted to mean the Attorney General can only point to
the Secretary’s prior deeming notice and cannot consider
whether that notice covers the conduct alleged in the lawsuit.
Such a strained interpretation would lead to absurd results.
It would compel the Attorney General to replace a defendant
and remove a case even when the defendant obviously is not
covered (e.g., the hypothetical health center dentist
moonlighting as a plastic surgeon for private clients).
The majority suggests that nothing stops the Attorney
General from advising the state court that the defendant is
not covered, which would have “no legal consequence”
because he nevertheless must remove the case to federal
BLUMBERGER V. TILLEY 67
court. Maj. Op. at 41. This only highlights the absurdity of
the majority’s view. The Attorney General’s notice under
subsection (l)(1) that the defendant was deemed a PHS
employee with respect to the acts or omissions at issue in the
lawsuit “shall be deemed to satisfy the provisions of
subsection (c) that the Attorney General certify that [the
defendant] was acting within the scope of their employment
or responsibility.” If the Attorney General decides that the
Secretary’s deeming decision extends to the conduct alleged
in the lawsuit, he thus necessarily decides that the conduct
was within the scope of the defendant’s employment. My
colleagues in the majority try to blunt the severity of their
new rule by suggesting that the Attorney General can always
move to remand if the government later concludes that the
conduct alleged in the lawsuit was not within the scope of
the defendant’s employment. But this purported “no harm,
no foul” approach suffers from a fatal flaw. Under 28 U.S.C.
§ 1447(c), a motion to remand must be filed within thirty
days and, in many cases, the government will not be able to
make a scope of employment decision within that timeframe.
In any event, requiring the government to remove a case only
to move to remand its own removal is inefficient and
impractical.
In sum, § 233(l)(1) requires that the Attorney General
advise the state court whether the conduct at issue in the
lawsuit falls under the defendant’s § 233 coverage as a
deemed PHS employee. It does not require that the Attorney
General merely point to the Secretary’s prior deeming notice
without considering the facts alleged in the case.
68 BLUMBERGER V. TILLEY
B. A “presumption of reviewability” does not require
removal.
The majority contends that the government’s reading of
the statute “would effectively insulate the Attorney
General’s deeming advice to the state court—and the
ultimate decision not to certify scope of employment—from
judicial review.” Maj. Op. at 43. That is neither relevant nor
accurate.
For starters, a presumption favoring judicial review of
agency decisions does not impact the limited question before
us. Section 233 allows doctors to remove in one
circumstance: when the Attorney General fails to appear. 42
U.S.C. § 233(l)(2). That did not happen here, and we may
not rewrite the statute to allow removal based on a general
policy favoring judicial review. E.g., Lamie v. U.S. Tr., 540
U.S. 526, 538 (2004) (stating that it is not the court’s role to
“soften the import of Congress’ chosen words even if we
believe the words lead to a harsh outcome”); Blount v. Rizzi,
400 U.S. 410, 419 (1971) (“[I]t is for Congress, not this
Court, to rewrite the statute.”). If Congress intended to grant
defendants broad removal rights to seek federal court review
of coverage determinations, it would have said so. Indeed, in
the Westfall Act, Congress expressly granted federal
employees the right to “petition the court to find and certify
that the employee was acting within the scope of his office
or employment.” 28 U.S.C. § 2679(d)(3). No such language
exists in § 233.
The majority’s reliance on De Martinez v. Lamagno, 515
U.S. 417 (1995) is thus misplaced. There, the Supreme Court
considered whether the Westfall Act allowed a plaintiff to
seek court review of the government’s scope of employment
determination after the government certified that a defendant
BLUMBERGER V. TILLEY 69
was acting within the scope of his employment, substituted
in as the defendant, then asserted that the United States was
immune. Id. at 420. The Court noted that the Westfall Act’s
provisions “work together to assure that” scope of
employment disputes “may be resolved in federal court,”
including the provision “specifically allow[ing] employees
whose certification requests have been denied by the
Attorney General[] to contest the denial in court.” Id. at 431
(citing 28 U.S.C. § 2679(d)(3)). 4 And when discussing the
policy favoring judicial review, the Court focused on the
dispositive nature of the government’s scope of employment
determination. Id. at 424 (explaining that, when a
government official’s decision “is dispositive of a court
controversy, federal courts generally do not hold the
determination unreviewable”). Because the United States
was immune from suit, its certification that the defendant
was acting within the scope of his employment defeated the
plaintiff’s claims.
This reasoning does not apply here. The Westfall Act,
unlike § 233, has explicit language allowing a defendant to
petition for federal court review. See Hui v. Castaneda, 559
U.S. 799, 807 (2010) (finding it “telling” that Congress used
different language in the Westfall Act than in § 233);
O’Brien v. United States, 56 F.4th 139, 146 (1st Cir. 2022)
(“The differences between the Westfall Act and [§ 233] . . .
are real, not simply technical.”). We should “presume that
4
The majority posits that, because De Martinez was decided six months
before § 233(l)(1) was enacted, “Congress could well have understood
that federal courts would review the scope of employment determination
unless Congress specified otherwise.” Maj. Op. at 49. That is pure
speculation, and it ignores that the Court expressly relied on the Westfall
Act’s provision for federal court petitions, yet Congress declined to enact
a similar provision in § 233.
70 BLUMBERGER V. TILLEY
such drafting decisions are deliberate.” United States v.
Alexander, 725 F.3d 1117, 1121 (9th Cir. 2013). And the
government’s determination that Dr. Tilley is not covered
under § 233 would not dispose of Blumberger’s case. She
can still proceed against Dr. Tilley and the other defendants
in state court.
What’s more, Dr. Tilley is not left without any avenue for
judicial review of the government’s coverage decision. He
could seek review in state court, or he could file an APA
action in federal court challenging the government’s
negative coverage determination. Indeed, the D.C. Circuit
has held that doctor defendants may file an APA claim
challenging the government’s negative coverage decision, in
part because “Congress almost certainly did not intend for
the FSHCAA removal provisions of § 233(l)(2) to provide a
review procedure for a negative deeming determination by
the Secretary.” El Rio Santa Cruz, 396 F.3d at 1271. In short,
Dr. Tilley may have other ways to challenge the
government’s coverage decision, but he cannot remove the
case to federal court under § 233.
* * *
Section 233 allows defendants to remove only if the
Attorney General fails to appear within fifteen days. The
Attorney General timely appeared, so Dr. Tilley’s removal
was improper. We cannot cure that improper removal by
rewriting the statute to require the Attorney General to
remove the case. Nothing in § 233 requires the Attorney
General to remove, and for reasons we cannot know on this
record, the government decided that Dr. Tilley was not
“deemed” a PHS employee “with respect to” medical
services he performed at a non-federally funded hospital.
The majority oversteps by blindly rejecting the
BLUMBERGER V. TILLEY 71
government’s decision and compelling removal. In doing so,
the majority creates a per se removal rule for all PHS
employees going forward, regardless of whether they were
acting in the scope of their employment. Such a per se
removal rule is contrary to the plain language of § 233 and,
despite the potential for gamesmanship by the government
under the statutory language as written, it is for congress not
the courts to amend the statute if it wishes to avoid the
unintended consequences of its law. I respectfully dissent.