Sam Friedenberg v. Lane County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAM FRIEDENBERG, personal No. 21-35078

representative of the estate of Marc

Sanford; DEREK LARWICK, D.C. No.

personal representative of the estate of 6:18-cv-00177-

Richard Bates; LORRE SANFORD, MK

an individual,

Plaintiffs-Appellees, OPINION

v.

LANE COUNTY; LANE COUNTY

MENTAL HEALTH, AKA Lane

County Behavioral Health; CARLA

AYRES; ERIK MORRIS; FRANCES

FREUND; JULIE RIUTZEL,

Defendants-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

2 FRIEDENBERG V. LANE COUNTY

Argued and Submitted February 9, 2022

Portland, Oregon

Filed May 19, 2023

Before: Richard A. Paez and Jacqueline H. Nguyen,

Circuit Judges, and John R. Tunheim,* District Judge.

Opinion by Judge Paez;

Dissent by Judge Nguyen

SUMMARY**

Federal Immunity / Removal

The panel reversed the district court’s order remanding

to state court Plaintiffs’ action alleging negligence and

wrongful death claims against federally funded community

health centers and their employees (“Defendants”), and

remanded to the district court to enter an order substituting

the United States as the defendant and deeming the action as

one brought under the Federal Tort Claims Act.

The Federally Supported Health Centers Assistance Act

(“FSHCAA”) provides that health centers receiving funding

under § 330 of the Public Health Service Act (“PHSA”) may

*

The Honorable John R. Tunheim, Chief United States District Judge for

the District of Minnesota, 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.

FRIEDENBERG V. LANE COUNTY 3

be deemed Public Health Service (“PHS”) employees. PHS

employees are granted immunity from certain claims arising

out of their performance of “medical, surgical, dental or

related functions.” 42 U.S.C. § 233(a). Plaintiffs alleged

that Defendants violated their duty to report a court-ordered

Lane County Mental Health patient’s refusal to comply with

the terms of his probation. Plaintiffs alleged they were

injured as a result of Defendants’ failure to report a patient’s

repeated failures to comply with his mental health treatment

plan. Defendants contended that they were entitled to § 233

immunity. The district court held that § 233 immunity did

not apply to Defendants and remanded to state court.

The panel first addressed whether there was jurisdiction

to review the district court’s remand order. Ordinarily, a

remand order is not reviewable on appeal, except for cases

removed pursuant to 28 U.S.C. § 1442. The parties

disagreed about whether Defendants removed the case under

§ 1442. As a threshold matter, the panel held that plaintiffs

waived their objection to the timeliness of Defendants’

removal by failing to properly raise it in district court. Next,

the panel held that the United States’ argument that this case

was never removed pursuant to § 1442 failed. The notice of

removal did not cite only to § 233 as a basis for removal

jurisdiction. The notice of removal set forth additional

grounds by referencing, among other statutes, § 1442 as a

basis for federal question jurisdiction. The panel held that

Defendants’ notice of removal contained sufficient facts to

invoke § 1442 as a basis of removal. The district court’s

entire order is reviewable on appeal, and there is jurisdiction

to review the district court’s remand order.

Next, the panel turned to whether § 233 immunity

applied in this case. Congress extended the immunity

protection provided to actual PHS employees in § 233(a) to

4 FRIEDENBERG V. LANE COUNTY

“deemed” PHS employees under § 233(g). The parties did

not dispute that Defendants were deemed PHS employees

during the relevant period. The panel agreed with

Defendants that § 233 immunity did not turn on who brings

the claim, but rather on whether the conduct giving rose to

the claim arose out of the Defendants’ performance of

“medical, surgical, dental or related functions.” Nothing in

§ 233(g)(1)(B) limits immunity protection to a particular

class of plaintiffs; rather, the statute contemplates the types

of actions for which deemed PHS employees are

covered. To the extent the district court ruled that § 233 did

not apply in this case because Plaintiffs were not “patients,”

that was legal error. The panel also held that Plaintiffs’

argument that deemed employees receive limited protection

under § 233 lacked merit. The panel rejected Plaintiffs’

contention that § 233 was enacted only to cover medical

malpractice claims. Section 233(a) plainly encompasses

damages stemming from the performance of medical and

“related” functions.

The panel next considered whether § 233 immunity

applied in this case. The panel held that Defendants’ failure

to report the patient’s violations of his treatment plan to the

municipal court was a “related function” under § 233(a).

Any duty that the Defendants had to report the patient’s

violations and potential threat to the public was tied to their

status as medical health professionals. The panel concluded

that that the tortious conduct in this case qualified as a

“related function” under § 233(a).

Finally, the parties contested whether Defendants’

tortious conduct fell outside of their § 330 grant

activities. The panel rejected Plaintiffs’ argument that the

tortious conduct in this case did not relate to Defendants’

grant-supported activity because Lane County never

FRIEDENBERG V. LANE COUNTY 5

mentioned the “Jail Diversion Program” in its grant

application. An applicant need not identify the specific

names of the programs that will refer patients to the applicant

health centers. The panel also rejected Plaintiffs’ argument

that the Jail Diversions Program was state funded and thus

fell outside of the grant’s scope. Accordingly, Defendants’

tortious conduct fell within the scope of their § 330 grant.

The panel concluded that because the Defendants met the

qualifications set forth in § 233(a), they were entitled to

immunity in this case.

The panel reversed the district court’s order remanding

the case to state court, and remanded to the district court to

enter an order substituting the United States as the defendant

and deeming the action as one brought under the Federal

Tort Claims Act.

Judge Nguyen dissented because in her view this Court

lacks jurisdiction over the appeal. She wrote that a fair

reading of the notice of removal here showed that the Lane

County defendants never asserted their intention to remove

this case under § 1442. She would dismiss the appeal for

lack of jurisdiction.

COUNSEL

Matthew S. Freedus (argued) and Rosie Dawn Griffin,

Feldesman Tucker Leifer Fidell LLP, Washington, D.C.;

Stephen E. Dingle, Lane County Office of County Counsel,

Eugene, Oregon; for Defendants-Appellants.

Travis S. Eiva (argued), Eiva Law, Eugene, Oregon, for

Plaintiffs-Appellees Sam Friedenberg, Derek Larwick, and

Lorre Sanford.

6 FRIEDENBERG V. LANE COUNTY

Kevin B. Soter (argued), Mark B. Stern, and Dana

Kaersvang, Appellate Staff Attorneys; Scott Erik Asphaug,

Acting United States Attorney; Brian M. Boynton, Acting

Assistant Attorney General; United States Department of

Justice; Washington, D.C.; Kevin C. Danielson, Assistant

United States Attorney; Office of the United States Attorney;

Portland, Oregon; for Defendant-Appellee United States of

America.

OPINION

PAEZ, Circuit Judge:

This case concerns the scope of immunity granted to

federally funded community health centers and their

employees when they are deemed Public Health Service

(“PHS”) employees under the Federally Supported Health

Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233 (“§

233”).

The FSHCAA provides that health centers that receive

funding under § 330 of the Public Health Service Act

(“PHSA”), 42 U.S.C. § 254b (“§ 330”), may be deemed PHS

employees. 42 U.S.C. § 233(g). PHS employees are granted

immunity from certain claims arising out of their

performance of “medical, surgical, dental or related

functions.” 42 U.S.C. § 233(a). When § 233 immunity

applies, the United States is substituted as the defendant and

the action proceeds as one brought under the Federal Torts

Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680.

Defendants Lane County, Lane County Mental Health

(“LCMH”), and its employees, Carla Ayres, Erik Morris,

FRIEDENBERG V. LANE COUNTY 7

Frances Freund, and Julie Riutzel (collectively,

“Defendants”) contend that they are entitled to § 233

immunity in a state court tort action brought by Plaintiffs

Lorre Sanford and represented decedents (collectively,

“Plaintiffs”). In state court, Plaintiffs alleged negligence and

wrongful death claims against Defendants for violating their

duty to report a court-ordered LCMH patient’s refusal to

comply with the medical terms of his probation. Defendants

removed the case to federal court on the grounds that they

were immune from suit as “deemed” PHS employees. The

district court disagreed, reasoning that as “deemed” rather

than actual PHS employees, Defendants were not entitled to

§ 233 immunity because Plaintiffs were not LCMH

“patients” when they suffered injuries.

We disagree. Section 233 immunity does not turn on

who brings the claim, and neither does it require that the

alleged tort occur during the provision of services. Rather,

§ 233 immunity depends on whether the claim arose out of

the defendant’s performance of “medical, surgical, dental, or

related functions.” 42 U.S.C. § 233(a). Because we hold

that Defendants’ conduct qualifies as a “related” function

under § 233, we reverse the district court’s remand order and

direct the district court, on remand, to substitute the United

States as the defendant. Id.

There is a preliminary jurisdictional issue that we must

address before reaching the merits of Defendants’ appeal.

Defendants appeal the district court’s order remanding this

case to the Lane County Circuit Court, where it was

originally filed. Ordinarily, a remand order is not reviewable

on appeal. There is an exception, however, for cases

removed pursuant to 28 U.S.C. § 1442 (“§ 1442). See 28

U.S.C. § 1447(d) (“§ 1447(d)”). Because this case was

removed, in part, under § 1442, the district court’s remand

8 FRIEDENBERG V. LANE COUNTY

order is reviewable on appeal. BP P.L.C. v. Mayor of

Baltimore, 141 S. Ct. 1532, 1538 (2021). We therefore have

jurisdiction to address the merits of Defendants’ appeal.

I.

In March 2015, Michael Bryant (“Bryant”) was

convicted of criminal mischief and criminal trespass in the

Springfield City Municipal Court in Oregon. Bryant suffers

from schizophrenia and bipolar disorder with serious

symptoms of psychosis. The court, as a condition of his

probation, referred Bryant to a Jail Diversion Program in

Lane County, Oregon, which allows mentally ill persons

convicted of crimes to avoid incarceration if they comply

with a mental health treatment plan. The court ordered

Bryant to report to LCMH for treatment and to “follow all

directives of LCMH.”

Lane County receives PHSA § 330 grant funding to

provide primary care and related services to medically

underserved populations. Lane County administers the §

330 grant project through its Community Health Centers

division. That division provides various health services to

the community, including psychiatric and mental health

services. LCMH is one of several service-delivery sites

within Lane County’s grant project.

In June 2014, the U.S. Department of Health and Human

Services (“HHS”) issued a formal notice deeming Lane

County, its health centers, and health center employees—

including LCMH and its employees—as PHS employees

under FSHCAA § 233 for calendar year 2015. The notice

states that, for any action based on acts or omissions that

occurred during calendar year 2015, LCMH and its

employees have “liability protection . . . for damage for

personal injury, including death, resulting from the

FRIEDENBERG V. LANE COUNTY 9

performance of medical . . . or related functions . . . while

acting within the scope of such employment.”

In March 2015, Bryant started his treatment with LCMH

as required by the court’s order. Plaintiffs allege, however,

that from roughly March 2015 to November 2015, Bryant

repeatedly violated his probation by refusing to take his

prescribed medication and missing medical appointments

without reason. Plaintiffs contend that despite Bryant’s

repeated failures to comply with his treatment plan, no one

at LCMH reported his violations to the court.

On November 15, 2015, Bryant had a psychotic

breakdown, attacked his parents with a baseball bat, killed

his father, and seriously injured his mother. Bryant also

killed the family dog and set the family home on fire. Bryant

then took the family’s SUV and drove to Springfield,

Oregon, where he ran over and killed pedestrian Richard

Bates. After killing Bates, Bryant drove to Eugene, Oregon,

where he ran over pedestrians Lorre and Marc Sanford.

Marc Sanford died from his injuries and Lorre Sanford was

severely injured.

In November 2017, Plaintiffs filed this action in the Lane

County Circuit Court against Defendants. Plaintiffs alleged

multiple claims of negligence and wrongful death, arguing

that they were injured as a result of Defendants’ failure to

report Bryant’s repeated probation violations to the court,

which would have caused the court to incarcerate him.

Defendants removed the case to federal court. They

argued that the United States should be substituted as the

defendant and the action should be treated as one brought

under the FTCA because all Defendants were deemed PHS

employees. Among other grounds for removal, Defendants

cited § 233 as a basis for removal, which allows a health

10 FRIEDENBERG V. LANE COUNTY

center to remove a case when the United States fails to

inform the state court whether the FTCA remedy is

available. 42 U.S.C. § 233(l)(2) (establishing that if an

action qualifying for immunity under § 233 is filed in state

court, the “proceeding shall be removed to the appropriate

United States district court”).1

Plaintiffs moved to remand, arguing that the district

court lacked jurisdiction. The magistrate judge determined

that federal jurisdiction existed to hold a § 233 hearing.2

After holding the § 233 hearing, the magistrate judge

concluded that § 233 immunity did not apply to Defendants

and recommended that the action be remanded to state court.

The magistrate judge reasoned that § 233 immunity for

“deemed” PHS employees only extends to claims brought by

“patients” of a community health center or non-patients who

received direct services as approved under the statute. The

district court adopted the recommendation and ordered the

case remanded to state court.

Defendants requested a stay of the remand order pending

appeal on the ground that the case was removed, in part,

pursuant to the federal officer removal statute, § 1442. In

response, Plaintiffs argued for the first time that the case was

not removed pursuant to § 1442, and that even if § 1442 was

1

Section 233 provides that upon removal predicated on § 233(l)(2), “the

action shall be stayed . . . 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 . . . and issues an order consistent with

that determination.” 42 U.S.C. § 233(l)(2).

2

The United States (“United States” or “Government”) declined to

intervene or substitute as a defendant because it determined that § 233

immunity did not apply to Defendants’ alleged actions. Nonetheless, it

appeared in this case as an interested party under 28 U.S.C. § 517.

FRIEDENBERG V. LANE COUNTY 11

the basis for removal, Defendants’ motion to remand was

untimely.

The district court granted the stay, recognizing that the

Supreme Court’s then looming decision in BP P.L.C. could

impact whether the court’s remand order is reviewable on

appeal. See 141 S. Ct. 222 (2020), cert. granted.

Defendants’ appeal followed.

II.

We review de novo whether the district court’s basis for

remand is reviewable on appeal. Atl. Nat’l Tr. LLC v. Mt.

Hawley Ins. Co., 621 F.3d 931, 938 (9th Cir. 2010) (citation

omitted). If appellate jurisdiction exists, we review de novo

the district court’s remand order for lack of subject-matter

jurisdiction. Lively v. Wild Oats Mkts., Inc., 456 F.3d 933,

938 (9th Cir. 2006) (citations omitted). The district court’s

denial of absolute immunity is also reviewed de novo. Slater

v. Clark, 700 F.3d 1200, 1203 (9th Cir. 2012) (citing Lacey

v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en

banc)).

III.

We first address whether we have jurisdiction to review

the district court’s remand order. Ordinarily, a district

court’s remand order is not reviewable on appeal. See 28

U.S.C. § 1447(d). There is an exception, however, for cases

removed pursuant to § 1442. See id. (“[A]n 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.”). Section 1442 permits “[f]ederal

officers, and their agents, [to] remove cases based on acts

performed under color of their federal office if they assert a

colorable federal defense[.]” Durham v. Lockheed Martin

12 FRIEDENBERG V. LANE COUNTY

Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citing 28 U.S.C.

§ 1442(a)(1)).

We previously interpreted § 1447(d) to mean that we

may only review the part of the district court’s remand order

that was based on the court’s § 1442 analysis. See County of

San Mateo v. Chevron Corp., 960 F.3d 586, 598 (9th Cir.

2020), cert. granted, judgment vacated sub nom. Chevron

Corp. v. San Mateo County, 141 S. Ct. 2666 (2021). The

Supreme Court has since clarified that when a case is

removed pursuant to § 1442, the whole of the district court’s

order is reviewable on appeal. See BP P.L.C., 141 S. Ct. at

1538. Accordingly, “courts of appeals have jurisdiction to

review a remand order in its entirety so long as the case was

removed under [§] 1442.” Dietrich v. Boeing Co., 14 F.4th

1089, 1093 (9th Cir. 2021) (citation omitted).

The parties disagree about whether Defendants removed

the case under § 1442. Plaintiffs contend that Defendants

filed an untimely notice of removal and therefore did not

properly remove the case under § 1442. The United States

contends that even if the removal was timely, Defendants did

not invoke § 1442 as a basis for removal because, among

other reasons, § 1442 was only referenced three times in the

notice of removal as a comparative statute to § 233.

Defendants contend that even though they focused their

removal strategy on § 233, they also cited § 1442 as an

alternative basis for removal which is sufficient for

establishing federal appellate jurisdiction. We agree with

Defendants.

A.

As a threshold matter, Plaintiffs waived their objection

to the timeliness of Defendants’ removal by failing to

properly raise it in district court.

FRIEDENBERG V. LANE COUNTY 13

A district court may only remand a case to state court for

procedural defects “upon a timely motion to remand.” Smith

v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014) (citing 28

U.S.C. § 1447(c)). If a plaintiff objects to removal for a

defendant’s failure to meet the removal deadline, he must do

so in a timely motion to remand. See 28 U.S.C. § 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 . . .

.”). As we explained in Smith, “the [thirty-day] statutory

time limit for removal petitions is merely a formal and modal

requirement and is not jurisdictional.” See 761 F.3d at 1045

(citation and internal quotation marks omitted). Thus,

“[a]lthough the time limit [to remove a case] is mandatory

and a timely objection to a late petition will defeat removal,

a party may waive the defect . . . by sitting on his rights.” Id.

(citations and internal quotation marks omitted). That is

what Plaintiffs did here.

Plaintiffs failed to raise their timeliness objection within

the statutory 30-day deadline. See 28 U.S.C. § 1447(c).

Notably, although Plaintiffs filed a motion to remand, they

failed to object to the timeliness of Defendants’ removal

under § 1442. Accordingly, Plaintiffs waived their objection

to this procedural defect.

Nonetheless, Plaintiffs urge us to excuse their delay

because the objection was allegedly unripe when they filed

their motion to remand. They argue that the objection would

have been futile because the district court decided to hold a

§ 233(c) hearing, and thus, removal under § 1442 only

became relevant after the hearing. The statute, however,

clearly establishes that procedural objections become ripe

when a defendant files the notice of removal. There is

nothing in the relevant federal statutes, rules, or case law that

14 FRIEDENBERG V. LANE COUNTY

suggests a plaintiff may delay raising a timeliness objection

pending the outcome of a § 233(c) hearing. Moreover,

Plaintiffs could have raised a timeliness objection in their

initial motion to remand which they filed before the

magistrate judge decided to hold the § 233(c) hearing.

Plaintiffs’ decision to focus their motion on contesting the §

233(c) hearing does not alter this fact.3 Because Plaintiffs

failed to comply with the statutory requirements for

objecting to a procedural defect in Defendants’ notice of

removal, Plaintiffs’ timeliness arguments are waived.

B.

The United States’ argument that this case was never

removed pursuant to § 1442 also fails.

The Supreme Court stated in BP P.L.C. that a

defendant’s compliance with § 1446 is what effectuates

removal. See BP P.L.C., 141 S. Ct. at 1538. The Court

explained that “[t]o 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

3

Plaintiffs urge us to follow the district court’s reasoning in K.C. v. Cal.

Hosp. Med. Ctr, 2018 WL 5906057, at *6 (C.D. Cal. Nov. 8, 2018). We

decline to do so because 1) K.C. predates the Supreme Court’s decision

in BP P.L.C., and 2) the case does not support Plaintiffs’ argument. In

K.C., the plaintiff properly raised an timeliness objection to the

defendant’s removal under § 1442, and the district court remanded the

case, in part, because the removal was untimely. Id. We affirmed. K.

C. by & through Dunmore v. Khalifa, 816 F. App’x 111, 112–13 (9th

Cir. 2020), cert. denied sub nom. Afework v. Babbitt, 141 S. Ct. 2754

(2021), and vacated in part, 857 F. App’x 958 (9th Cir. 2021). Unlike

in K.C., Plaintiffs failed to raise their timeliness objection within the

statutory deadline. While K.C. is nonbinding authority, it does highlight

the fact that Plaintiffs could have made a timely objection despite the §

233(c) hearing. K.C. does not help Plaintiffs’ argument.

FRIEDENBERG V. LANE COUNTY 15

reason of’ one of those provisions.” Id. (citations omitted).

The Court further stated that a defendant does just that “by

citing § 1442 as one of its grounds for removal.” Id. “Once

that happened and the district court ordered the case

remanded to state court, the whole of its order became

reviewable on appeal.” Id.

Defendants argue that § 1442 is an alternative basis for

removal under the court’s federal question jurisdiction. The

notice of removal states:

The [district] [c]ourt has jurisdiction pursuant

to . . . 28 U.S.C. § 1442(a)(1) . . . to assess

whether the alleged acts or omissions in the

state action arose out of ‘the performance of

medical, surgical, dental or related functions’

within the scope of defendants’ deemed PHS

employment and, in turn, whether the United

States must be substituted as the only proper

defendant.

Plaintiffs do not take issue with Defendants’ reference to §

1442(a)(1) as a basis for removal.

The United States nevertheless contends that this case

“was removed solely pursuant to [§ 233].” It argues that: (1)

the notice of removal only states that the case is removable

under § 233; (2) the notice of removal only cites to § 1442

three times as a non-substantive comparative statute to §

233; (3) Defendants’ citation to § 1442 was conclusory; and

(4) Defendants’ post-removal litigation conduct confirms

the case was not removed pursuant to § 1442. We disagree

with these arguments.

16 FRIEDENBERG V. LANE COUNTY

As a threshold matter, the notice of removal does not

only cite to § 233 as a basis for removal jurisdiction. Indeed,

the United States’ argument to the contrary omits much of

the sentence on which it relies. That sentence states in broad

terms that “[p]ursuant to 42 U.S.C. § 233(l)(2), 28 U.S.C. §

2679(d)(3), and on the grounds set forth below, defendants .

. . respectfully remove [this case] to this Court.” The

sentence not only invokes § 233 as a basis for removal, but

it also invokes removal under the Westfall Act, 28 U.S.C. §

2679, a statute similar to § 233. Moreover, the

Government’s argument ignores the phrase “and on the

grounds set forth below.” The notice of removal proceeds to

set forth additional grounds by referencing, among other

statutes, § 1442 as a basis for federal question jurisdiction.

Even if this were the only reference to § 1442 in the

notice of removal, nothing in § 1442 or § 1443 states that the

removal notice must repeatedly cite all the statutory grounds

for removal or discuss each statute in detail to invoke it as a

basis for removal. It is common practice for defendants to

remove a case pursuant to multiple federal statutes. See BP

P.L.C., 141 S. Ct. at 1538 (recognizing that “a party may

assert multiple grounds for removing a case to federal

court”). According to BP P.L.C., a defendant removes a case

pursuant to a statute, such as § 1442, “by citing [the statute]

as one of its grounds for removal.” Id. That is what

Defendants did here.

The Government and dissent argue that Defendants’

reference to § 1442 was conclusory and therefore cannot

support removal. That argument is not persuasive as it fails

to engage with the appropriate standard. We must interpret

§ 1442 “broadly in favor of removal.” Durham, 445 F.3d at

1252. Notably, while removal under 28 U.S.C. § 1441 is to

be strictly construed, the federal officer removal statute is to

FRIEDENBERG V. LANE COUNTY 17

receive a generous interpretation. See id. (“We take from

this history a clear command from both Congress and the

Supreme Court that when federal officers and their agents

are seeking a federal forum, we are to interpret § 1442

broadly in favor of removal.”). And while it is true that a

defendant seeking to remove an action may not offer mere

legal conclusions, see Leite v. Crane Co., 749 F.3d 1117,

1122 (9th Cir. 2014) (citation omitted), “[t]he absence of

detailed grounds setting forth [a] basis for removal is not

fatal to defendants’ right to remove,” Agyin v. Razmzan, 986

F.3d 168, 181 (2d Cir. 2021) (citation and internal quotation

marks omitted). It is enough “if the court is provided the

facts from which its jurisdiction can be determined.” Id.

(citations omitted); see also Leite, 749 F.3d at 1120–22

(reasoning that the defendant alleged facts satisfying each of

the requirements for federal officer removal to survive a

facial attack). Applying these principles, Defendants’ notice

of removal contains sufficient facts to invoke § 1442 as a

basis for removal.

To invoke § 1442, the removing party must allege in the

removal notice that “(1) it is a ‘person’ within the meaning

of the statute, (2) a causal nexus exists between plaintiffs’

claims and the actions [it] took pursuant to a federal officer’s

direction [i.e., it acted under color of federal office], and (3)

it has a ‘colorable’ federal defense to plaintiffs’ claims.”

Leite, 749 F.3d at 1120 (citation omitted); see also Agyin,

986 F.3d at 174 (citation omitted). The allegations in

Defendants’ notice of removal satisfy these requirements.

First, the individual Defendants allege that they are

“person[s].” 1 U.S.C. § 1 (“[T]he words ‘person’ and

‘whoever’ include corporations, companies, associations,

firms, partnerships, societies, and joint stock companies, as

well as individuals[.]”). The removal notice states that the

18 FRIEDENBERG V. LANE COUNTY

individual Defendants are comprised of an administrator and

mental health providers.

Second, Defendants allege that they acted under color of

federal office. As support for that allegation, the removal

notice states that LCMH’s employees are deemed “PHS

employees for purposes of the immunity afforded by 42

U.S.C. § 233(a)” and are “immune from any civil action or

proceeding arising out of the performance of [their] medical,

surgical, or related functions within the scope of [their]

employment with Lane County and LCMH.”

Third, Defendants allege a “colorable federal defense”

by stating that Defendants’ answer to Plaintiffs’ amended

complaint asserts their respective rights to absolute

immunity provided under the PHSA and FSHCAA.

Finally, Defendants specifically invoke § 1442(a)(1) as

a basis for removal under the court’s federal question

jurisdiction. The notice of removal states that “[t]he Court

has jurisdiction pursuant to . . . 28 U.S.C. § 1442(a)(1) . . . to

assess whether the alleged acts or omissions in the state

action arose out of ‘the performance of medical, surgical,

dental or related functions’ within the scope of defendants’

deemed PHS employment and, in turn, whether the United

States must be substituted as the only proper defendant.”

Under the pleading standards for removal, these allegations

are sufficient. See Leite, 749 F.3d at 1120–21.

Plaintiffs’ objection to Defendants’ focus on § 233 as a

basis for removal also lacks merit. The removal notice

sufficiently invokes § 1442 as an alternative basis for

removal even if that provision was not the linchpin of

Defendants’ removal strategy. Moreover, the inquiry here is

whether the notice of removal on its face sufficiently invokes

§ 1442 as a basis for removal jurisdiction. See id. at 1121.

FRIEDENBERG V. LANE COUNTY 19

When the notice of removal is read in the light most

favorable to Defendants as the removing parties, the

allegations are sufficient to put Plaintiffs on notice that §

1442 was an alternative ground for removal.

For purposes of determining whether a defendant

invoked § 1442 as a basis for removal, a defendant’s citation

to “§ 1442 as one of its grounds for removal” is sufficient

under Supreme Court authority. BP P.L.C., 141 S. Ct. at

1538. Because Defendants did that here, the district court’s

entire order is reviewable on appeal. We therefore have

jurisdiction to review the district court’s remand order.

IV.

We turn to the merits of Defendants’ appeal to assess

whether § 233 immunity applies in this case. Because this

is a matter of first impression in our circuit, we briefly

review the scope of § 233 immunity provided to community

health centers and their employees.

A.

As a general principle, the United States “may not be

sued without its consent.” United States v. Mitchell, 463

U.S. 206, 212 (1983). The FTCA, however, is an example

of the federal government consenting to be sued for certain

types of actions. The FSHCAA extends the FTCA to certain

public health entities, their employees, and qualified

contractors receiving federal grants.

The relevant entities covered by the FSHCAA are

community health centers that receive federal funding under

§ 330 to serve underprivileged populations regardless of

their ability to pay for service. H.R. Rep. No. 104-398, at 5

(1995). Congress enacted the FSHCAA to prevent these

community health centers from having to use their federal

20 FRIEDENBERG V. LANE COUNTY

funds to purchase costly medical malpractice insurance,

which is “one of the most significant expenses for health

centers.” Id.

Under § 233(a), actual PHS employees, whether

“commissioned officer[s] or employee[s] of the Public

Health Service,” qualify for immunity under the FTCA for

damages resulting “from the performance of medical,

surgical, dental, or related functions . . . while acting within

the scope of [their] office or employment.” 42 U.S.C. §

233(a).4 Congress extended the protection provided to

actual PHS employees in § 233(a) to “deemed” PHS

employees under § 233(g). 42 U.S.C. § 233(g)(1)(A)5

4

42 U.S.C. § 233(a) states: 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.

5

42 U.S.C. § 233(g)(1) provides in part:

(A) [A]n entity described in paragraph (4), and any

officer, governing board member, or employee of such

an entity . . . shall be deemed to be an employee of the

Public Health Service . . . [t]he remedy against the

United States for a [deemed PHS employee] shall be

exclusive of any other civil action or proceeding to the

same extent as the remedy against the United States is

exclusive pursuant to subsection (a).

FRIEDENBERG V. LANE COUNTY 21

(establishing that for entities deemed to be PHS employees

“[t]he remedy . . . shall be exclusive of any other civil action

or proceeding to the same extent as the remedy against the

United States”). An entity must be “deemed” an employee

of the PHS by the HHS to receive such protection. 42 U.S.C.

§ 233(g)– (h). The HHS makes this determination after

reviewing an entity’s application and assessing whether it

meets certain qualifications. Id.

The parties do not dispute that Defendants were deemed

PHS employees during the relevant period in this case.

Rather, the dispute turns on an interpretation of § 233(g).

Defendants contend that § 233(g)(1)(A) grants deemed PHS

employees the same protection as actual PHS employees

under § 233(a). Plaintiffs contend, on the other hand, that §

233(g)(1)(B) limits protection for deemed PHS employees

to claims where “the tortious conduct occurs during ‘services

provided to patients.’”

The magistrate judge agreed with Plaintiffs and

determined that § 233 immunity does not apply in this case

because “Plaintiffs are not the ‘patient’ within the meaning

of § 233(g)(1)(B).” See 42 U.S.C. § 233(g)(1)(B) (“The

deeming of any entity . . . [applies] to services provided--(i)

to all patients of the entity and (ii) subject to subparagraph

(C), to individuals who are not patients of the entity.”). In

other words, the magistrate judge reasoned that § 233(g)

(B) The deeming of any entity or officer, governing

board member, employee, or contractor of the entity to

be an employee of the Public Health Service for

purposes of this section shall apply with respect to

services provided-- (i) to all patients of the entity, and

(ii) subject to subparagraph

(C), to individuals who are not patients of the entity.

22 FRIEDENBERG V. LANE COUNTY

only covers claims made by parties who received direct

medical care. The district court agreed and remanded the

case to state court. For the reasons explained below, we hold

that this was error.

1.

We agree with Defendants that § 233 immunity does not

turn on who 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.” 42 U.S.C. § 233(a).

Nothing in § 233(g)(1)(B) limits immunity protection to

a particular class of plaintiffs. Rather, the statute

contemplates the types of actions for which deemed PHS

employees are covered. Such actions include claims

regarding “services provided to all patients of the entity,”

and in limited circumstances “to non-patients.” 42 U.S.C. §

233(g)(1)(B). While the claim must result from the

performance of these 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. To the extent the

district court ruled that § 233 did not apply in this case

because Plaintiffs were not “patients,” that was legal error.

This is illustrated in the cases we discuss below, where

courts have recognized claims filed by third parties against

deemed PHS employees.

Plaintiffs do not seriously dispute this point, as the issue

in this case does not turn on whether a third-party may sue

for damages in connection with services provided to a

patient. Plaintiffs nonetheless contend that § 233 immunity

is unavailable in this case because § 233(g) limits the

protection deemed PHS employees are afforded.

FRIEDENBERG V. LANE COUNTY 23

2.

Plaintiffs contend that § 233 immunity extends lesser

protection to deemed PHS employees under § 233(g) than it

does to actual PHS employees under § 233(a). According to

Plaintiffs, while § 233(a) provides actual PHS employees

protection from any claims arising out of their performance

of medical or related functions, § 233(g) protects deemed

PHS employees only in cases where the tortious conduct

“occurs during the provision of medical services to a

patient.”

Plaintiffs argue that the tortious conduct here, which is

LCMH’s failure to inform the municipal court of Bryant’s

violations of his treatment plan, did not occur during the

Defendants’ provision of medical services to Bryant. Thus,

Plaintiffs posit that § 233 immunity does not apply.

Defendants counter that § 233(g) is not as limited as

Plaintiffs suggest. Rather, they assert that deemed PHS

employees receive protection “to the same extent” as actual

PHS employees, which includes immunity from any claims

for damages that resulted from the Defendants’ performance

of “medical, surgical, dental, or related functions[,]” 42

U.S.C. § 233(a) (emphasis added), to patients and other

individuals, 42 U.S.C. § 233(g)(1)(B). According to

Defendants, “[n]othing in § 233(a) or (g) limits [the] . . .

grant of absolute immunity to claims brought by plaintiffs

directly harmed at the hands of a deemed provider.” A plain

reading of the statute (and the legislative history) supports

Defendants’ interpretation.

Section 233(g)(1)(A) states in plain terms that “[t]he

remedy against the United States for . . . an entity who is

deemed to be an employee of the Public Health Service

pursuant to this paragraph shall be exclusive of any other

24 FRIEDENBERG V. LANE COUNTY

civil action or proceeding to the same extent as the remedy

against the United States is exclusive pursuant to subsection

(a).” 42 U.S.C. § 233(g)(1)(A) (emphasis added). The “to

the same extent” language suggests that the protection in §

233(g) is the same as in § 233(a). Plaintiffs’ argument would

render this statutory phrase meaningless.

Nor does the text in § 233(g)(1)(B) undermine

Defendants’ interpretation. Plaintiffs contend that Congress

included § 233(g)(1)(B) to limit coverage with “respect to

services provided” to “patients of the entity” and that we

must “give meaning and effect to the limiting words

chosen.” While we acknowledge Congress’s intent in

enacting § 233(g)(1)(B), we are not persuaded that this

language limits immunity to “tortious conduct” that “occurs

in the setting of the actual provision of medical services.”

Rather, when § 233(g)(1)(B) is read in conjunction with §

233(g)(1)(A) and § 233(a), it is clear that deemed PHS

employees are entitled to immunity from claims resulting

from providing “medical, surgical, dental, or related”

services to “patients” and some “individuals who are not

patients of the entity.” 42 U.S.C. § 233(a), (g)(1)(B). The

statutory text clearly shows that immunity is not tied to

whether the tort transpired in caring for the patient. Rather,

the language illustrates that as long as a claim is derived from

providing services to subjects of the healthcare provider, the

deemed PHS employee is immune from suit.

Furthermore, there is nothing in the legislative history

that suggests “deemed” PHS employees receive lesser

protection than actual PHS employees. To the contrary,

Congress intended for deemed PHS employees to receive

protection “in the same manner” as traditional PHS

employees during the coverage period. H.R. Rep. No. 104-

FRIEDENBERG V. LANE COUNTY 25

398, at 4.6 As Defendants note, Congress was concerned

with the lack of health center participation in the § 330 grant

program because community health centers lacked clarity on

whether certain services would be covered, such as services

provided to non-patients. Id. at 7. Sections 233(g)(1)(B) and

(C) were enacted to clear up such confusion, not to limit the

protection afforded to deemed PHS employees. See also id.

at 7, 11.

There is nothing to suggest that Congress intended to

limit the scope of protection by enacting § 233(g), and there

are no cases interpreting the provision as having such an

effect. Accordingly, Plaintiffs’ argument that deemed PHS

employees receive limited protection under § 233 lacks

merit.

Plaintiffs next argue that “[n]othing in the legislative

history indicates that Congress intended to provide

immunity to health centers for general tort liability arising

from slip and falls, employment claims, or vehicular torts

that occur outside of the actual provision of medical services

to patients.” But this case does not involve such conduct.

This argument is thus inapposite.

Plaintiffs also contend that § 233 was enacted to cover

only medical malpractice claims. Several courts have

6

The legislative history is clear on this point. See H.R. Rep. No. 104-

398, at 4 (“Health centers and their employees, officers, and contractors

are covered for malpractice claims in the same manner as employees of

the Public Health Service who provide medical care.”); see also id. at 10

(“Under current law (section 224 of the Public Health Service Act),

certain Federally assisted health centers, and their physicians and other

health care practitioners, are covered for malpractice claims under the

[FTCA] . . . in the same manner as are employees of the Public Health

Service who provide medical care.”).

26 FRIEDENBERG V. LANE COUNTY

grappled with this issue and have rejected this interpretation.

Indeed, most of the cases Plaintiffs rely on so conclude.7

Those courts have held so for good reason. While

Congress’s concerns regarding malpractice insurance

premiums were the driving force behind the legislation,

Congress did not limit § 233 immunity to “only” malpractice

claims when it could have. See Cuoco v. Moritsugu, 222

F.3d 99, 108 (2d Cir. 2000); see also Logan v. St. Charles

Health Council, Inc., 2006 WL 1149214, at *2 (W.D. Va.

May 1, 2006) (“Congress, in drafting the statute, failed to

use plain language limiting the statute to medical

malpractice suits . . . .”). Accordingly, the scope of § 233

immunity does not depend on whether the claim is framed as

one of medical malpractice, but rather whether the claim is

the result of the defendant’s “performance of medical,

surgical, dental, or related functions” in providing services

to both patients and nonpatients alike. 42 U.S.C. § 233(a),

(g).

Any other reading would render the “related functions”

language in the statute superfluous. See Pomeroy v. United

7

See Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000) (“Cuoco

asserts that § 233(a) provides immunity only from medical malpractice

claims. But there is nothing in the language of § 233(a) to support that

conclusion. When Congress has sought to limit immunity to medical

malpractice claims it has done so explicitly.” (citation omitted)); Logan

v. St. Charles Health Council, Inc., 2006 WL 1149214, at *2 (W.D. Va.

May 1, 2006) (same); Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 299

(D. Conn. Jul. 16, 2001) (same); see also Z.B. ex rel. Next Friend v.

Ammonoosuc Cmty. Health Servs., Inc., 2004 WL 1571988, at *3 (D.

Me. June 13, 2004), report and recommendation adopted sub nom. Z.B.

ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc., 2004 WL

1925538 (D. Me. Aug. 31, 2004); Bennett v. United States, 375 F. Supp.

3d 1180, 1187 (W.D. Wash. Mar. 22, 2019); Blackburn v. United States,

2021 WL 3027979, at *6 (10th Cir. 2021).

FRIEDENBERG V. LANE COUNTY 27

States, 2018 WL 1093501, at *2 (D. Mass. Feb. 27, 2018)

(“The statute must cover a broader scope of activity than the

delineated categories alone, or else ‘related functions’ would

be mere superfluity.” (citation omitted)). We must give

meaning to the plain text of the statute, and here, § 233(a)

plainly encompasses damages stemming from the

performance of medical and “related” functions. As

explained further below, the tortious conduct in this case

meets these criteria.

B.

Having defined the scope of § 233 immunity, we

consider whether it applies in this case. We conclude that it

does.

The alleged tortious conduct in this case is Defendants’

failure to notify the municipal court of Bryant’s violations of

his probation order by failing to comply with his mental

health treatment plan.8 The question then is whether

Defendants’ failure to report Bryant’s violations of his

treatment plan to the municipal court is a “related function”

under § 233(a).

Few cases have assessed the meaning of “related

function” under § 233(a), and neither we nor the Supreme

Court have had occasion to weigh in. See Brignac v. United

States, 239 F. Supp. 3d 1367, 1376 (N.D. Ga. Mar. 9, 2017).

While not binding, we find persuasive several district court

cases that have interpreted this language. We hold that the

8

Defendants also refer to Plaintiffs’ allegations that Defendants’

treatment plan for Bryant was ineffective. Plaintiffs have stated on

numerous occasions, however, that this case is not about the Defendants’

failure to treat Bryant, but rather, their failure to report his violations to

the municipal court. The crux of the allegations in the First Amended

Complaint supports this theory.

28 FRIEDENBERG V. LANE COUNTY

conduct here is at least a medically “related function” under

§ 233(a).

Mele v. Hill Health Center is instructive. 609 F. Supp.

2d 248 (D. Conn. Mar. 31, 2009). The plaintiff, Mele, was

a criminal defendant who was ordered to participate in a

health center’s federally funded health program that

provided behavioral health services for individuals with

substance abuse. Id. at 254. Mele, however, was ultimately

terminated from the program because he violated his

treatment plan. Id. Mele sued the health center and its

employees for violating his Constitutional rights when they

“terminated him from [the] drug treatment program.” Id. at

252. The district court determined that the United States

should be substituted as the sole defendant because the

defendants’ alleged wrongdoing “related” to the provision of

the deemed PHS employees’ medical services to Mele. Id.

at 256. According to the court, there was no evidence to

suggest that the defendants’ “decision to terminate [Mele’s]

treatment was based on reasons unrelated to his medical

care.” Id. The facts here are analogous.

In Teresa T. v. Ragaglia, the plaintiffs sued a doctor for

failing to report suspected child abuse. 154 F. Supp. 2d 290,

293 (D. Conn. Jul. 16, 2001). Although the failure to report

did not involve a direct medical service, the court determined

that the doctor’s failure to report the suspected child abuse

was a “related function” to the provision of medical services.

Id. at 299–300. The court reasoned that the failure to report

was “related” to medical services because the duty to report

was imposed on doctors acting within their professional

capacity. Id. at 300. While the court reasoned that the duty

to report was “triggered” during a medical examination of

the child, the tortious conduct did not occur during the

provision of medical services. Id. As in this case, the

FRIEDENBERG V. LANE COUNTY 29

tortious conduct in Teresa T. was the failure to meet an

alleged reporting obligation related to the evaluation of a

patient.

Similarly, in Z.B. ex rel. Next Friend v. Ammonoosuc

Community Health Services, Inc., the court reasoned that a

medical professional’s failure to report suspected child

abuse was “related” to medical services because the duty to

report “arises out of the employees’ status as medical

professionals.” 2004 WL 1571988, at *3 (D. Me. June 13,

2004), report and recommendation adopted sub nom. Z.B.

ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc.,

2004 WL 1925538 (D. Me. Aug. 31, 2004). In that case, like

here, medical services were not provided directly to the

plaintiff who was the child. Id. Rather, the medical services

were provided to the plaintiff’s mother, during which the

medical professionals learned of potential child abuse and

had a duty to report suspected child abuse. Id. The court

concluded that the tortious conduct was “related” to the

provision of medical services to the plaintiff’s mother given

that the duty to report arose out of the defendants’ status as

medical professionals and because the services were

provided to the mother due to concerns over the child’s

welfare. Id. That case did not turn on the provision of

medical treatment, but rather, whether the plaintiff’s harm

was related to it.9

9

There are several other district court cases that follow the same

reasoning. See, e.g., C.K. v. United States, 2020 WL 6684921, at *6

(S.D. Cal. Nov. 12, 2020) (reasoning that “administrative or operational

duties could qualify as related functions where they were connected to

the provision of medical care” (citation omitted)); Pomeroy, 2018 WL

1093501, at *2–3 (stating that a nursing home’s negligent provision of

solid food to a woman with a known swallowing disability constitutes a

related function); Trap v. United States, 2016 WL 6609212, at *3 (C.D.

30 FRIEDENBERG V. LANE COUNTY

Plaintiffs’ proposition that § 233 immunity applies only

when the injury occurs “during the provision of medical

treatment to a patient” ignores the statutory text. Such an

interpretation would unduly limit the immunity protection

under § 233(a) and render meaningless the portion of the

statute that covers “related” medical functions.

We recognize that there are cases that declined to extend

§ 233 immunity to defendants because the alleged tortious

conduct had nothing to do with the provision of medical

services and thus could not be a “related function.”10 The

alleged tortious conduct here, however, is not so far removed

from medical services that it cannot qualify as related

conduct. Rather, this case approximates the cases discussed

above where district courts found that the tortious conduct

was “related” to the provision of medical services. As in

Mele, where the district court reasoned that a health center’s

Cal. Mar. 7, 2016) (concluding that acts of retaliation against a prisoner

such as subjecting him to extended periods in inclement weather and

denying him “food . . . on day-long trips outside the prison for his

medical appointments” were “related” to the provision of medical

services); Mele v. Hill Health Ctr., 2008 WL 160226, at *3 (D. Conn.

Jan. 8, 2008) (reasoning that § 233 immunity applied to a doctor’s

disclosure of patient information because such actions concerned “the

medical functions of providing treatment and the related function of

ensuring the privacy of patient medical information”).

10

See Mendez v. Belton, 739 F.2d 15, 19–20 (1st Cir. 1984) (declining

to extend § 233 immunity to a medical provider who sued her employer

for racial and sexual discrimination when it denied her of certain staff

privileges); Logan, 2006 WL 1149214, at *1–3 (declining to extend §

233 immunity to a medical provider who sued her employer for

fraudulently using her name to write prescriptions she did not authorize);

La Casa de Buena Salud v. United States, 2008 WL 2323495, at *20–22

(D.N.M. Mar. 21, 2008) (declining to extend § 233 immunity to a doctor

who murdered a former patient at a private location while off duty).

FRIEDENBERG V. LANE COUNTY 31

termination of a prisoner from a jail diversion program was

“related” to the provision of medical services, here, the

Defendants’ failure to report Bryant’s violations of his

treatment plan to the court was “related” to the provision of

medical services. See 609 F. Supp. 2d at 256.

Further, as in Teresa T. and Z.B., the alleged wrongdoing

in this case is directed at the Defendants’ failure to report

Bryant’s violations of his treatment plan in their capacities

as medical professionals. See 154 F. Supp. 2d at 300; 2004

WL 1571988, at *3. Indeed, any duty that the Defendants

had to report Bryant’s violations and potential threat to the

public was tied to their status as medical health

professionals.11 In the above cases, the conduct in question

had a distinct connection to the provision of medical,

surgical, or dental services. See id. Such conduct falls

within the ambit of § 233.

In sum, Defendants’ failure to report is intertwined with

their provision of medical services to Bryant, or at the very

least, is “related” to them. Accordingly, we conclude that

the tortious conduct in this case qualifies as a “related

function” under § 233(a).

11

As alleged in the First Amended Complaint, Plaintiffs claim they were

harmed as a result of the Defendants’ failure to report Bryant’s

violations. While Plaintiffs do not specify the source of any such duty

that Defendants owed Plaintiffs in their operative complaint, the legal

sufficiency of their allegations is not dispositive. As Defendants note,

the viability of Plaintiffs’ underlying claims is not determinative of

whether Defendants are entitled to § 233 immunity. The important

question is whether the alleged acts or omissions in this case are

“medical, surgical, dental, or related functions” under § 233(a). Whether

Plaintiffs can state a claim for relief is for the district court to address in

the first instance.

32 FRIEDENBERG V. LANE COUNTY

C.

Finally, the parties contest whether Defendants’ tortious

conduct fell outside of their § 330 grant activities.12 Under

42 C.F.R. § 6.6, “[o]nly acts and omissions related to the

grant-supported activity of entities are covered” even if the

other requirements for immunity under § 233 have been met.

42 C.F.R. § 6.6(d).

Plaintiffs first argue that the tortious conduct in this case

does not relate to Defendants’ grant-supported activity

because Lane County never mentioned the “Jail Diversion

Program” in its grant application. We reject this argument.

Plaintiffs fail to cite any authority stating that such

specification is required. Indeed, the FTCA Manual that

Plaintiffs rely on only instructs grant applicants to specify

the services that they plan to perform and the locations for

such services.13 An applicant need not identify the specific

names of the programs that will refer patients to the applicant

health centers. Indeed, the single case that Plaintiffs rely on

states as much and does not support Plaintiffs’ argument.

See Estate of Booker v. Greater Philadelphia Health Action,

Inc., 10 F. Supp. 3d 656, 669–70 (E.D. Pa. Mar. 31, 2014)

(determining that deemed health center’s “Employee Health

Program” was grant-supported activity even though the

12

Defendants also argue that the individual Defendants were acting

within the scope of their employment under Oregon state law when they

committed the tortious conduct in this case. Plaintiffs do not contest this

point; rather, Plaintiffs contend that Defendants’ tortious conduct fell

outside the scope of their grant-supported activity, which is a separate

inquiry.

13

Federal Tort Claims Act, Health Center Policy Manual (“FTCA

Manual”), at 8 (HHS 2014), https://bphc.hrsa.gov/ftca/pdf/ftcahcpolicy

manualpdf.pdf.

FRIEDENBERG V. LANE COUNTY 33

center’s application did not mention the program by name

but only noted the program’s substance and services).

Here, Lane County references its plans to provide mental

health treatment services to underserved patients in the

community in its grant application. Lane County’s

participation in the Jail Diversion Program “as a patient

referral service is [just] one community-based intervention

through which Lane County meets the needs of its target

population.”

Plaintiffs’ argument that the Jail Diversion Program is

state funded and thus falls outside of the grant’s scope also

lacks merit.14 Even assuming that “grant-supported activity”

only includes activity that is directly paid for by federal

funds, Plaintiffs’ arguments fail because they ignore the

“related to” language in 42 C.F.R. § 6.6(d). 42 C.F.R. §

6.6(d) (“Only acts and omissions related to the grant-

supported activity of entities are covered.” (emphasis

added)); see Z.B., 2004 WL 1571988, at *4. Indeed, “it is

the term ‘related to’ in the regulation that is crucial.” Z.B.,

2004 WL 1571988, at *4. Thus, if the County’s Jail

Diversion Program is “related to” activity that is supported

by the grant at issue, nothing further is required. See id.

That requirement is easily satisfied here. It is undisputed

that Lane County’s grant covers its efforts to provide mental

health services to vulnerable communities in its covered

areas, and that the Jail Diversion Program provides needed

mental health services to adults and juveniles in those areas

who encounter the criminal justice system. Given that the

14

The record suggests that the Jail Diversion Program is only partially

state funded as its costs were included in the grant application’s total-

budget.

34 FRIEDENBERG V. LANE COUNTY

expressed purposes of the program and the federally funded

activities are similar, the acts and omissions in this case at

least “relate to” Lane County’s grant-supported activity.

Accordingly, Defendants’ tortious conduct falls within

the scope of their § 330 grant. Because Defendants meet the

qualifications set forth in § 233(a), they are entitled to

immunity in this case.

V.

We reverse the district court’s order remanding this case

to state court. We remand to the district court to enter an

order substituting the United States as the defendant and

deeming the action as one brought under the FTCA.

REVERSED AND REMANDED

NGUYEN, Circuit Judge, dissenting:

We do not, in my view, have jurisdiction over this

appeal. Because the majority concludes otherwise, I

respectfully dissent. As the majority acknowledges, unless

an exception applies, we lack jurisdiction to review remand

orders. The Lane County defendants invoke the exception

for “an order remanding a case to the State court from which

it was removed pursuant to section 1442 or 1443 of this

title.” 28 U.S.C. § 1447(d). But even a cursory review of

the notice of removal makes clear that the Lane County

defendants did not in fact remove this case under § 1442.

The notice of removal, seventeen pages long, is entirely

dedicated to explaining why there is federal jurisdiction

pursuant to 42 U.S.C. § 233. It says unequivocally that the

case is removed pursuant to § 233(l)(2). See Notice of

FRIEDENBERG V. LANE COUNTY 35

Removal at 3 (“[T]his action is properly removed under 42

U.S.C. § 233(l)(2), a federal officer removal statute enacted

specifically for the benefit of deemed PHS employees.”). It

cites § 1442 in passing just three times. Two of those

citations are only by way of comparison with removal under

§ 233(l)(2). See Notice of Removal at 3 (“Section 233(l)(2)

serves a purpose similar to the general officer removal

statute at 28 U.S.C. § 1442(a)(1) – i.e., to provide a right to

a federal forum for a judicial determination as to the

availability of a federal officer immunity defense.”); id. at 9

(“Section 233(l)(2) is in substance and effect an officer

removal statute, akin to (but even more generous than) the

general officer removal statute at 28 U.S.C. § 1442(a)(1).”).

The third passing reference to § 1442 is in a string

citation, which the majority excerpted in part. Maj. Op. at

15. The entire sentence reads:

The Court has jurisdiction pursuant to the

PHS Act, FSHCAA, the Federal Tort Claims

Act (FTCA), 28 U.S.C. § 2679(d)(3), 28

U.S.C. § 1442(a)(1), and 28 U.S.C. § 1331,

to assess whether the alleged acts or

omissions in the state action arose out of “the

performance of medical, surgical, dental or

related functions” within the scope of

defendants’ deemed PHS employment and,

in turn, whether the United States must be

substituted as the only proper defendant.”

Notice of Removal at 3 (citations omitted). A string citation,

without more, does not give sufficient notice that the Lane

County defendants “assert the case is removable ‘in

accordance with or by reason of’” § 1442. BP P.L.C. v.

36 FRIEDENBERG V. LANE COUNTY

Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538

(2021). Moreover, this sentence—in contrast to those

invoking § 233(l)(2)—states that § 1442 is a basis for

jurisdiction, not a basis for removal. More importantly,

because the rest of the notice of removal is focused solely on

§ 233, this stray reference to § 1442 does not put other

litigants or the court on notice that § 1442 is a basis for

removal. In fact, like the notice of removal, the Lane County

defendants’ filings below mentioned § 1442 only as a

comparator to § 233(l)(2). As a result, none of the district

court’s orders analyzed § 1442 as a basis for removal, and it

was not until the Lane County defendants filed a notice of

appeal that they invoked § 1442 as a basis for removal. See

BP, 141 S. Ct. at 1538 (“[T]he statute allows courts of

appeals to examine the whole of a district court’s ‘order,’

not just some of its parts or pieces.”) (emphasis added).

It does not take much to give notice of a ground for

removal. But a fair reading of the notice of removal here

shows that the Lane County defendants never asserted their

intention to remove this case under § 1442. I would

therefore dismiss the appeal for lack of jurisdiction.