# Gonzalez v. El Centro Del Barrio

> Court of Appeals for the Fifth Circuit · February 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11252024

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 6, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** United States Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case: 25-50092 Document: 73-1 Page: 1 Date Filed: 02/06/2026

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
February 6, 2026
No. 25-50092
____________ Lyle W. Cayce
Clerk
Arturo Gonzalez,

Plaintiff—Appellee,

versus

El Centro Del Barrio, doing business as CentroMed,

Defendant—Appellant.
______________________________

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:24-CV-852
______________________________

Before Haynes, Duncan, and Ramirez, Circuit Judges.
Haynes, Circuit Judge:
The underlying case is a class action asserting claims arising out of a
data breach. This appeal concerns only whether the defendant below can seek
a federal forum under 42 U.S.C. § 233 or 28 U.S.C. § 1442. The district court
remanded this case to state court. We likewise conclude that removal was
improper under both statutes and AFFIRM the district court’s remand.
I. Background
El Centro Del Barrio, doing business as CentroMed, is a Texas
nonprofit organization that operates as a community health center. As part of
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its operations, CentroMed collects and stores on its network some of its
patients’ personal information. As alleged, cybercriminals infiltrated
CentroMed’s network and gained access to numerous individuals’ private
information in 2024. After the data breach was discovered, Arturo Gonzalez,
individually and on behalf of those similarly situated, filed a class action
petition in Bexar County, Texas. Gonzalez claims that CentroMed failed “to
take and implement adequate and reasonable measures to ensure that
[Plaintiffs’] Private Information was safeguarded.” Relying on both 42
U.S.C. § 233 and 28 U.S.C. § 1442, CentroMed removed the case to the
federal court.
A. Statutory Framework
The first statute on which CentroMed relies, 42 U.S.C. § 233, allows
for removal by a deemed employee of the Public Health Service (“PHS”) in
a narrow set of circumstances. 42 U.S.C. § 233(l)(1)–(2). The PHS is
supervised by the Department of Health and Human Services (“HHS”). Id.
§ 202. Under § 233(a) of the Public Health Services Act (“PHSA”), a PHS
employee is provided “absolute immunity . . . 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). Where such a
claim is asserted, the United States is substituted for the defendant and the
action proceeds under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346, 2671–80. See 42 U.S.C. § 233(a), (c).
In the Federally Supported Health Centers Assistance Act
(“FSHCAA”), 1 Congress extended this immunity to certain private health

_____________________
1
See Federally Supported Health Centers Assistance Act, Pub. L. No. 102–501,
106 Stat. 3268, 3268–72 (1992); see also Federally Supported Health Centers Assistance
Act, Pub. L. No. 104–73, 109 Stat. 777, 777–83 (1995).

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centers that receive federal funds. 42 U.S.C. §§ 233(g)(4), 254b. For a
federally-funded health center to avail itself of this immunity, the HHS
Secretary must first “deem” the health center to be part of the PHS for a
given calendar year, which involves seeking approval for grant funds and
submitting an application to HHS demonstrating that it meets the
enumerated requirements. See id. § 233(g)(1)(A), (g)(1)(D), (g)(4), (h). But
the deeming decision alone does not provide immunity. For an action to be
covered, it must seek personal injury damages “resulting from the
performance of medical, surgical, dental, or related functions” that were
conducted by a PHS employee “acting within the scope of
[its] . . . employment.” Id. § 233(a); see also Hui, 559 U.S. at 806.
When an action is filed against a federally-funded health center in state
court, § 233 sets out the process for removal to federal court. The center
must “promptly furnish copies of the pleading” to the appropriate United
States attorney, the Attorney General, and the Secretary of HHS. 42 U.S.C.
§ 233(b). After receiving notice, the Attorney General may certify “that the
defendant was acting in the scope of [its] employment at the time of the
incident,” and, where that is the case, removal is required. Id. § 233(c). More
precisely, however, § 233 clarifies that, “within 15 days” of notification of
the action, the Attorney General “shall make an appearance in such court
and advise such court as to whether the Secretary has determined” that the
center “is deemed to be an employee of the [PHS] for purposes of [§ 233]
with respect to the actions or omissions that are the subject of such civil
action or proceeding.” Id. § 233(l)(1). “Such advice” is “deemed to satisfy”
§ 233(c)—the scope of employment certification. Id. But “[i]f the Attorney
General fails to appear in State court” within 15 days, the health center may
remove. Id. § 233(l)(2).
The second statute on which CentroMed relies allows certain federal
officers to remove a state-court action to federal court. 28 U.S.C. § 1442.

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Specifically, the federal officer removal statute allows “any officer (or any
person acting under that officer) of the United States or of any agency
thereof, in an official or individual capacity, for or relating to any act under
color of such office” to remove an action filed in state court to federal court.
Id. § 1442(a)(1). This “is a pure jurisdictional statute, seeking to do nothing
more than grant district court jurisdiction over cases in which a federal officer
is a defendant.” Guadalupe-Blanco River Auth. v. City of Lytle, 937 F.2d 184,
185 (5th Cir. 1991) (quoting Mesa v. California, 489 U.S. 121, 136 (1989)). The
federal officer must remove the action within 30 days after it receives a
pleading or other paper from which the right to remove is ascertainable. See
Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 607 (5th Cir. 2018) (citing
28 U.S.C. § 1446(b)(1), (3)).
B. Procedural History
CentroMed receives federal funding under the PHSA, 42 U.S.C.
§§ 233(g)(4), 254b, and has, in some circumstances, been “deemed” a PHS
employee. After CentroMed was served in this case on June 26, 2024, it
delivered the pleading to HHS and requested coverage. The Attorney
General, through the United States Attorney for the Western District of
Texas, 2 first appeared in state court on July 12, 2024. The Attorney General
clarified that notice of the action was received from HHS on July 8, 2024,
and informed the state court that, as of that time, HHS had “not yet
provided its report as to whether the deemed status of CentroMed under 42
U.S.C. §§ 233(g) and (h) extends to the acts or omissions that are the subject
of this civil action.” Then, on July 23, 2024, 15 days after receiving notice of

_____________________
2
The United States Attorney for the relevant district “is authorized to make the
statutory certification that the covered person was acting at the time of the incident out of
which the suit arose under circumstances in which Congress has provided by statute that
the remedy provided by the [FTCA] is made the exclusive remedy.” 28 C.F.R. § 15.4(b).

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the petition, the Attorney General notified the state court that CentroMed
“was not deemed to be a [PHS] employee for purposes of the acts or
omissions giving rise to the suit and that this action therefore [was] not
subject to the provisions of 42 U.S.C. § 233,” so it would not intervene.
Nonetheless, CentroMed removed 37 days after it was served, arguing
that it was entitled to a federal forum under both 42 U.S.C. § 233 and 28
U.S.C. § 1442. Gonzalez promptly filed a motion to remand, contending that
the district court lacked jurisdiction because CentroMed did not have a right
to remove on either basis. The United States, as a non-party, also urged the
district court to remand.
The district court granted Gonzalez’s motion to remand. The district
court concluded that CentroMed had no right to remove under § 233(l)(2)
because the Attorney General timely appeared in state court, and its removal
under § 1442(a)(1) was untimely. CentroMed promptly appealed.
II. Jurisdiction & Standard of Review
Though the parties do not discuss jurisdiction at length, we have “an
independent obligation to assess the basis for subject matter jurisdiction
before wielding the judicial power of the United States.” La. Indep.
Pharmacies Ass’n v. Express Scripts, Inc., 41 F.4th 473, 478 (5th Cir. 2022)
(citations omitted). With that in mind, we turn to jurisdiction.
To be sure, orders remanding a case to state court are ordinarily
unreviewable. 28 U.S.C. § 1447(d). However, that rule notes that a removal
under § 1442 is reviewable.
With respect to § 233, we can review because the district court
effectively concluded that CentroMed was unable to avail itself of immunity
under § 233. In Hui, the Supreme Court approved the Ninth Circuit’s
conclusion in a similar context that “district court orders denying absolute

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immunity constitute ‘final decisions’ for purposes of 28 U.S.C. § 1291.” 559
U.S. at 804 n.4 (citation omitted). Accordingly, a district court’s effective
denial of § 233 immunity is subject to appellate review.
As for the standard of review, we review de novo issues of subject-
matter jurisdiction and issues related to “the propriety of removal.” Oviedo
v. Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011).
III. Discussion
CentroMed contends on appeal that its removal was proper under
both § 233 and § 1442. In its view, the district court was wrong to conclude
that CentroMed was unable to remove under § 233(l)(2) and that its removal
under § 1442(a)(1) was untimely. Gonzalez and the United States, as amicus
curiae, disagree and argue that the district court was correct to remand. We
start with § 233 and end with § 1442.
A. Removal under 42 U.S.C. § 233
The relevant issue with respect to § 233 is whether CentroMed was
entitled to remove under § 233(l)(2). The parties and the United States each
take different views of how § 233 operates and dispute when § 233(l)(2)
permits a defendant to remove.
CentroMed argues on appeal that because the Attorney General did
not appear or remove as required, it was permitted to do so under § 233(l)(2).
We disagree in all respects. In reaching this conclusion, we explain that the
Attorney General complied with § 233(l)(1) and removal was accordingly
inappropriate under § 233(l)(2).
1. The Attorney General’s notice complied with § 233(l)(1)
We must first determine what § 233(l)(1) required of the Attorney
General. Although § 233 “is hardly a model of clarity,” Blumberger v. Tilley,

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115 F.4th 1113, 1126 (9th Cir. 2024), cert. denied, 145 S. Ct. 2818 (2025), its
text explains exactly what the Attorney General must tell the state court.
Start with § 233(l)(1)’s text. If a lawsuit is filed in state court against a
deemed PHS employee seeking damages described in subsection (a): 3
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), that such entity . . . is deemed to be an
employee of the [PHS] for purposes of this section with
respect to the actions or omissions that are the subject of such
civil action or proceeding. 4
42 U.S.C. § 233(l)(1).
The key issue here concerns what § 233(l)(1) requires the Attorney
General to tell the state court. CentroMed argues that the Attorney General
needs only to inform the state court as to whether the health center had been
deemed a PHS employee for the given year. The text belies this assertion.
“The task of statutory interpretation begins and, if possible, ends with
the language of the statute.” United States v. Lauderdale Cnty., 914 F.3d 960,

_____________________
3
In relevant part, § 233(a) explains that the remedy against the United States set
out in 28 U.S.C. §§ 1346(b) and 2672 “for damage for personal injury, including death,
resulting from the performance of medical, surgical, dental, or related functions . . . by
any . . . employee of the [PHS] while acting within the scope of his . . . employment, shall
be exclusive of any other civil action or proceeding . . . .” 42 U.S.C. § 233(a).
4
The statute further clarifies that “[s]uch advice shall be deemed to satisfy the
provisions of subsection (c) that the Attorney General certify that an entity, officer,
governing board member, employee, or contractor of the entity was acting within the scope
of their employment or responsibility.” 42 U.S.C. § 233(l)(1). Subsection (c) clarifies that
when the Attorney General certifies 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 . . . .” Id. § 233(c). Accordingly,
an answer in the affirmative from the Attorney General requires removal.

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964 (5th Cir. 2019) (citation omitted). “When the language is plain, we must
enforce the statute’s plain meaning, unless absurd.” Id. (citation modified).
The statute’s language is clear.
While the entity needs to have been deemed an employee of the PHS
for the year, that fact is necessary but not sufficient. 42 U.S.C. § 233(l)(1).
The statute goes on to explain that the Attorney General is to notify the state
court if the health center is deemed to be a PHS employee “with respect to
the actions or omissions that are the subject of such civil action or
proceeding.” Id. A health center is deemed to be a PHS employee only with
respect to actions for damages “resulting from the performance of medical,
surgical, dental, or related functions.” Id. § 233(a). So, § 233(l)(1) asks the
Attorney General to notify the state court as to whether the defendant was
deemed to be a PHS employee during the relevant time period and whether
the complaint arises from the performance of services listed in § 233(a). 5 Id.
§ 233(l)(1); see also Blumberger, 115 F.4th at 1130 (reaching this conclusion).
The statute calls for a case-specific deeming determination.
Here, the Attorney General’s notice satisfied § 233(l)(1). Contrary to
CentroMed’s assertions on appeal, the record obviates any issues related to
the timing of the Attorney General’s notice. 6 Further, though the Attorney
_____________________
5
This is what § 233(l)(1) requires at a minimum. This case does not concern other
issues that may be presented by the statute’s “acts or omissions” language. See, e.g.,
Blumberger v. Tilley, 115 F.4th at 1145 (Desai, J., dissenting in part) (discussing that,
although the majority opinion concluded that “acts or omissions” refers “to whether the
conduct alleged in the lawsuit involves ‘medical, surgical, dental, or related functions,’”
that language should extend to the other components of § 233 coverage such as whether
the employee was “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”). Because these other issues are not presented here,
we need not reach them.
6
CentroMed also takes issue with the timing of the Attorney General’s notice to
the state court. Not all circuit courts to address this issue have agreed on what the Attorney

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General initially informed the state court that HHS had not yet made the
case-specific deeming determination, the record clarifies that, via a
subsequent notice filed 15 days after receiving notice of the petition, the
Attorney General notified the state court that it would not intervene because
CentroMed “was not deemed to be a [PHS] employee for purposes of the
acts or omissions giving rise to the suit and that this action therefore [was]
not subject to the provisions of 42 U.S.C. § 233.” The Attorney General
explained that the United States had determined that the claims resulting
from a criminal data breach did not fall within § 233(a)’s scope because the
claims were not for medical malpractice of the type that the statute is
intended to cover. The Attorney General’s reply in the negative is precisely
the sort of case-specific deeming determination that § 233(l)(1) requires.
We conclude that the Attorney General’s negative reply complied
with and satisfied § 233(l)(1), and the Attorney General was not required to
agree that this action can be removed.

_____________________
General must do within 15 days. Compare Allen v. Christenberry, 327 F.3d 1290, 1295 (11th
Cir. 2003) (Attorney General may appear within 15 days and state that the case-specific
deeming determination has yet to be made), and Doe v. Centerville Clinics Inc., No. 23-2738,
2024 WL 3666164, at *2 (3d Cir. Aug. 6, 2024) (same), cert. denied, 145 S. Ct. 1427 (2025),
reh’g denied, 145 S. Ct. 2726 (2025), with Blumberger, 115 F.4th at 1133 (Attorney General
must appear and give the required advice within 15 days). But we need not wade into this
debate. Although CentroMed has argued that the Attorney General’s supplemental notice
informing the state court of the case-specific deeming determination occurred outside the
15-day time period, the record demonstrates otherwise. CentroMed’s assertion otherwise
relies on a copy of the notice that bears a generic document stamp. As the United States
explained in a letter to the court, the stamp on which CentroMed relies does not appear to
have been applied by the state-court clerk’s office. Instead, the state-court docket clarifies
that the notice was filed on July 23, 2024, and a file stamped copy of the notice appears in
the record, clarifying that the Attorney General’s supplemental notice was filed on July 23,
2024—within 15 days of the Attorney General’s notice of the action.

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2. CentroMed was not permitted to remove under § 233(l)(2)
We must now determine whether CentroMed was permitted to
remove this action under § 233(l)(2).
The statute explains that “[i]f the Attorney General fails to appear in
State court within the time period prescribed under paragraph (1)”—15
days—“upon petition of any entity . . ., the civil action or proceeding shall be
removed.” 42 U.S.C. § 233(l)(2). This text makes plain that removal is
permitted only when the Attorney General does not appear as the statute
requires. 7
CentroMed cannot demonstrate that its removal was proper under
§ 233(l)(2). CentroMed’s arguments in support of removal all depend on its
contention that the Attorney General, for one reason or another, failed to
comply with § 233. But as noted above, the Attorney General complied with
§ 233(l)(1). The Attorney General provided the notice required by
§ 233(l)(1) within the required time frame. As a result, CentroMed was not
permitted to remove under § 233(l)(2).
Because the text is clear, the presumption that executive
determinations are subject to judicial review is inapplicable. The “strong
presumption” “that executive determinations generally are subject to
judicial review” applies “when a statutory provision is reasonably
susceptible to divergent interpretation.” Guerrero-Lasprilla v. Barr, 589 U.S.
221, 229 (2020) (citation modified). But here, the statute’s text is clear.
Congress intended that the case-specific deeming determination be made by
_____________________
7
The Attorney General’s appearance and negative reply here plainly prevented
CentroMed’s removal. As noted above, because the Attorney General appeared and
notified the state court of the case-specific deeming determination within 15 days, we need
not resolve any issues related to whether the Attorney General’s appearance alone prevents
removal under § 233(l)(2).

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HHS and the Attorney General. A difference in opinion about that
determination does not qualify as grounds for removal. 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) (“A review of the removal remedy under the
FSHCAA indicates 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.”). 8
* * *
CentroMed did not have a right to remove under § 233(l)(2) because,
within 15 days of receiving notice, the Attorney General appeared in state
court and advised the court that CentroMed was not “deemed to be an
employee of the [PHS] 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); id. § 233(l)(2). Accordingly, the district court did not
err by concluding that CentroMed’s removal under § 233(l)(2) was
improper.
B. Removal under 28 U.S.C. § 1442
CentroMed next asserts that its removal was proper under the federal
officer removal statute, 28 U.S.C. § 1442(a)(1). CentroMed contends that its
removal was timely because it removed the case within 30 days after the
Attorney General filed its first notice in state court. We disagree.

_____________________
8
As an alternative argument, both Gonzalez and the United States contend that
this action does not fall into § 233(a)’s scope. As a result, they say that the action is
inappropriate on § 233 grounds, necessitating remand. But we need not reach this question
because we conclude that CentroMed was not entitled to remove this action under
§ 233(l)(2).

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The § 1446(b)(1) standard is appropriate, requiring removal within 30
days of receipt of the pleading, because the petition “affirmatively reveal[ed]
on [its] face the information [CentroMed] needed to invoke federal-officer
removal.” Parish of Plaquemines v. Chevron USA, Inc., 7 F.4th 362, 368–69
(5th Cir. 2021); see also Morgan, 879 F.3d at 607. The petition clearly alleged
that CentroMed failed to protect its patients’ personal information during
the time when CentroMed had been deemed a PHS employee. 9
Under § 1446(b)(1), CentroMed’s removal was untimely. Instead of
removing within 30 days, CentroMed removed this action 37 days after it was
served with the petition. That was too late. Accordingly, the district court
properly determined that CentroMed’s removal under the federal officer
removal statute was untimely. 10
IV. Conclusion
For the reasons discussed above, we AFFIRM the district court’s
order of remand.

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9
This conclusion is supported by the fact that the Attorney General’s state-court
filings do not support removal under § 1446(b)(3) because “no aspect of” the removal
theory “would have only become apparent” at that time, Decatur Hosp. Auth. v. Aetna
Health, Inc., 854 F.3d 292, 297 (5th Cir. 2017), and the filing did not “result from the
voluntary act of [the] plaintiff.” Parish of Plaquemines, 7 F.4th at 373 (citation modified).
10
Gonzalez and the United States both alternatively contend that removal under
28 U.S.C. § 1442(a)(1) was substantively improper. Because we conclude that
CentroMed’s removal was untimely, we need not reach these alternative arguments.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11252024. Public record. Not legal advice.