Petition for Writ of Certiorari — Sandhills Medical Foundation, Inc., Petitioner v. Joann Ford, et al.

NO. ______

IN THE

Supreme Court of the United States

______________

SANDHILLS MEDICAL FOUNDATION, INC.,

Petitioner,

v.

JOANN FORD, on behalf of herself and

all others similarly situated

Respondent,

and

UNITED STATES,

Respondent.

______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

______________

MATTHEW SIDNEY FREEDUS

Counsel of Record

ROSIE DAWN GRIFFIN

FELDESMAN LEIFER LLP

1129 20th Street NW, Suite 400

Washington, DC 20036

202.466.8960

mfreedus@feldesman.com

rgriffin@feldesman.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

42 U.S.C. § 233(a) provides Public Health

Service officers and employees—and those deemed

equivalent via § 233(g)—comprehensive immunity

from suit by making the Federal Tort Claims Act a

plaintiff’s exclusive remedy in “any . . . civil action or

proceeding . . . resulting from the performance of

medical, surgical, dental, or related functions”

undertaken within their scope of employment.

The question presented is:

Does “related functions” in 42 U.S.C. § 233(a)’s

recitation of immunized conduct mean functions

related to medical, surgical, or dental functions—as

the Ninth Circuit concluded in Friedenberg v. Lane

County, 68 F.4th 1113 (9th Cir. 2023)—or, as the

Fourth Circuit concluded, mean activity in “a field of

health care outside of medicine, surgery, or

dentistry,” App. 18a, such that § 233(a) immunizes

only the “performance of the provision of health care.”

App. 20a.

i

PARTIES TO THE PROCEEDING

All parties are listed in the caption. Petitioner

Sandhills Medical Foundation, Inc. was a defendant

in the United States District Court for the District of

South Carolina and an appellee in the United States

Court of Appeals for the Fourth Circuit. Respondent

Joann Ford was the plaintiff and putative class

representative in the district court and appellant in

the court of appeals. Respondent United States was a

defendant in the district court following its

substitution in place of Petitioner. In the appeals

court, the United States was an appellee but

realigned with Respondent Ford by motion for

purposes of briefing.

CORPORATE DISCLOSURE STATEMENT

Petitioner has no parent corporation and no

shareholders own ten percent or more of its stock.

RELATED PROCEEDINGS

This case

proceedings:

arises

from

the

following

•

Ford v. Sandhills Medical Foundation, Inc.,

No. 2021-cp-13-0039 (S.C. Ct. C.P., filed

June 18, 2021) (removed to federal district

court July 26, 2021)

•

Ford v. Sandhills Med. Found., Inc., No.

4:21-cv-02307 (D.S.C. June 2, 2022)

(ordering substitution of the United States

ii

in place of defendant Sandhills Medical

Foundation, Inc.)

•

Ford v. Sandhills Med. Found., Inc., No. 222268 (4th Cir. Mar. 29, 2024) (vacating

substitution order and remanding for

further proceedings)

There are no other proceedings in state or

federal trial or appellate courts, or in this Court,

directly related to this case within the meaning of this

Court’s Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................2

STATUTORY PROVISIONS INVOLVED .................2

STATEMENT ..............................................................2

REASONS FOR GRANTING THE PETITION .........6

I.

The Fourth Circuit’s Restriction of § 233(a)

Immunity to Torts Occurring During the

Provision of Medical Care Creates a Conflict in

the Lower Courts ................................................6

II.

The Fourth Circuit’s Construction of

§ 233(a) Conflicts with this Court’s

Statutory Interpretation Precedent .................11

III. The Fourth Circuit’s Decision Must be

Corrected ...........................................................17

CONCLUSION ..........................................................22

Appendix A ................................................................1a

Appendix B ................................................................3a

Appendix C ..............................................................26a

Appendix D ..............................................................47a

Appendix E ..............................................................49a

iv

TABLE OF AUTHORITIES

Cases

In re Agent Orange Prod. Liab. Litig.,

818 F.2d 194 (2d Cir. 1987) .................................16

Agyin v. Razmzan,

986 F.3d 168 (2d Cir. 2021) .................................18

Aleuta v. Cmty. Clinic of Maui, Inc.,

No. 1:24-cv-00431 (D. Haw.) ...............................21

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) ..............................................12

Barnes v. Sea Mar Cmty. Health Ctrs.

No. 2:22-cv-181, 2022 WL 1541927

(W.D. Wash.) ........................................................21

Bradford v. Asian Health Services,

No. 24-cv-01060, 2024 WL 2883672

(N.D. Cal. June 7, 2024) ......................................21

Brignac v. United States,

239 F. Supp. 3d 1367 (N.D. Ga. 2017) ..................8

Capellan v. Fla. Cmty. Health Ctrs., Inc.,

No. 9:24-cv-81037 (S.D. Fla.) ...............................21

Carachuri-Rosendo v. Holder,

560 U.S. 563 (2010) ..............................................13

Cir. City Stores, Inc. v. Adams,

532 U.S. 105 (2001) .............................. 6, 11, 14, 15

v

CSX Transp., Inc. v. Ala. Dept. of Revenue,

562 U.S. 277 (2011) ..............................................12

Cuoco v. Moritsugu,

222 F.3d 99 (2d Cir. 2000) ...............................5–10

Delagarza v. El Centro Del Barrio,

No. 5:24-cv-00613 (W.D. Tex.) .............................20

Doe v. Neighborhood Healthcare,

No. 21-cv-1587, 2022 WL 17663520

(S.D. Cal. Sept. 8, 2022).......................................21

Dubin v. United States,

599 U.S. 110 (2023) ........................................13, 14

Fischer v. United States,

144 S. Ct. 2176 (2024)............................................7

Founding Church of Scientology of Wash.,

D.C., Inc. v. Fed. Bureau of

Investigation,

459 F. Supp. 748 (D.D.C. 1978) ...........................16

Friedenberg v. Lane County,

68 F.4th 1113 (9th Cir. 2023) ................ 3, 6–11, 19

Fulton v. Fla. Cmty. Health Ctrs., Inc.,

No. 9:24-cv-81033 (S.D. Fla.) ...............................21

Gerson v. Petaluma Health Ctr., Inc.,

No. 3:23-cv-03870 (N.D. Cal.) ..............................21

Gonzalez v. El Centro Del Barrio,

No. 5:24-cv-00852 (W.D. Tex.) .............................20

vi

Gooch v. United States,

297 U.S. 124 (1936) ..............................................12

Gustafson v. Alloyd, Co.,

513 U.S. 561 (1995) ........................................11, 12

Hale v. ARcare, Inc.,

No. 22-cv-00117, 2024 WL 1016361

(E.D. Ark. Mar. 8, 2024) ................................20, 21

Health and Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) ..............................................10

Hui v. Castaneda,

559 U.S. 799 (2010) ............................ 3, 7, 8, 15, 16

Johnson v. Cmty. Clinic of Maui, Inc.,

No. 24-cv-00443 (D. Haw.) ...................................21

Johnson v. Petaluma Health Ctr., Inc.,

No. 3:23-cv-03777 (N.D. Cal.) ..............................21

Kaiwi v. Cmty. Clinic of Maui, Inc.,

No. 1:24-cv-00440 (D. Haw.) ................................21

Krandle v. Refuah Health Ctr., Inc.,

No. 22-cv-5039, 2024 WL 1075359

(S.D.N.Y. Mar. 12, 2024) ........................... 9, 10, 20

L.V. v. AltaMed Health Serv. Corp.,

No. 23-cv-09658 (C.D. Cal.) .................................21

Lockhart v. El Centro Del Barrio,

No. 5:23-cv-01156 (W.D. Tex.) .............................20

vii

Lyston v. Cmty. Health Care, Inc.,

No. 24-cv-00097 (D.N.J.)......................................20

Margolies v. Lifelong Med. Care,

No. 24-cv-00340 (N.D. Cal.) .................................21

Marin v. El Centro Del Barrio,

No. 5:24-cv-00571 (W.D. Tex.) .............................20

Marshall v. Lamoille Health Partners, Inc.,

No. 22-cv-166, 2023 WL 2931823 (D. Vt.

Apr. 13, 2023) .......................................................20

Mitchell v. Forsyth,

472 U.S. 511 (1985) ..............................................21

Mixon v. CareSouth Carolina, Inc.,

No. 22-cv-269, 2022 WL 1810615 (D.S.C.

June 2, 2022) ........................................................20

Orr v. Florida Cmty. Health Ctrs., Inc.,

No. 9:24-cv-81032 (S.D. Fla.) ...............................21

Pomeroy v. United States,

17-cv-10211, 2018 WL 1093501 (D.

Mass. Feb. 27, 2018) ..............................................9

Robinson v. Shell Oil, Co.,

519 U.S. 337 (1997) ................................................7

Simmons v. Fla. Cmty. Health Ctrs., Inc.,

No. 24-cv-81036 (S.D. Fla.) ..................................21

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) ..............................................13

viii

Sparnicht v. Fla. Cmty. Health Ctrs., Inc.,

No. 9:24-cv-81034 (S.D. Fla.) ...............................21

Three Lower Cnties. Cmty. Health Servs.,

Inc. v. Maryland,

498 F.3d 294 (4th Cir. 2007)................................17

United States v. Aguilar,

515 U.S. 593 (1995) ..............................................12

United States v. Powell,

423 U.S. 87 (1975) ..........................................12, 13

United States v. Rodgers,

466 U.S. 475 (1984) ........................................12, 13

Williams v. Taylor,

529 U.S. 362 (2000) ................................................7

Yates v. United States,

574 U.S. 528 (2015) ........................ 6, 11, 12, 14, 15

Statutes

28 U.S.C. § 1254(1)......................................................2

28 U.S.C. § 1442(a)(1) .................................................4

28 U.S.C. § 2675(a)....................................................16

42 U.S.C. § 233(a)................ 2–8, 10–14, 16–18, 20, 21

42 U.S.C. § 233(g) ........................................................3

42 U.S.C. § 233(g)(1)(A) ........................................4, 18

42 U.S.C. § 233(g)(1)(B) ..............................................4

ix

42 U.S.C. § 233(g)(1)(C) ..............................................4

42 U.S.C. § 233(g)(1)(D) ..............................................4

42 U.S.C. § 233(h) .......................................................3

42 U.S.C. § 233(h)(1) .................................................18

42 U.S.C. § 233(l)(2) ....................................................4

42 U.S.C. § 254b ..................................................2, 3, 4

Emergency Health Personnel Act of

1970, Pub. L. No. 91-623, 84 Stat.

1868 (Dec. 31, 1970) ...............................................3

Federally Supported Health Centers

Assistance Act of 1992, Pub. L. No.

102-501, 106 Stat. 3268 (Oct. 24,

1992) .......................................................................4

Federally Supported Health Centers

Assistance Act of 1995, Pub. L. No.

104-73, 109 Stat. 777 (Dec. 26, 1995) ....................4

Other Authorities

141 Cong. Rec. H14273-07 ........................................19

A. Pillai, Kaiser Family Foundation,

Recent Trends in Community Health

Center Patients, Services, and

Financing (Apr. 19, 2024),

https://www.kff.org/medicaid/issuebrief/recent-trends-in-communityhealth-center-patients-services-andfinancing/..............................................................17

x

Gov’t Accountability Office, G.A.O. 19496, Health Centers: Trends in

Revenue and Grants Supported by

the Community Health Center Fund

(2019),

https://www.gao.gov/products/gao19-496 ...................................................................18

H.R. Rep. No. 104-398 (1995), reprinted

in 1995 U.S.C.C.A.N. 767 .......................... 4, 17–19

Nat’l Ass’n of Cmty. Health Ctrs.,

Community Health Center

Chartbook 2024 (Mar. 2023),

https://www.nachc.org/resource/com

munity-health-center-chartbook/ ..................18, 22

U.S. Public Health Service, Doctrine

(Jan. 2021),

https://dcp.psc.gov/ccmis/PDF_docs/

USPHS%20Commissioned%20Corps

%20Doctrine.pdf...................................................18

xi

NO. ______

IN THE

Supreme Court of the United States

SANDHILLS MEDICAL FOUNDATION, INC.,

Petitioner,

v.

JOANN FORD,

Respondent,

and

UNITED STATES,

Respondent.

______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

______________

PETITION FOR WRIT OF CERTIORARI

______________

Petitioner Sandhills Medical Foundation, Inc.

(Sandhills) respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s decision is reported at 97

F.4th 252 and reproduced at App. 3a–25a. The district

1

court’s order substituting the United States in place

of Petitioner Sandhills pursuant to 42 U.S.C. § 233(a)

is unreported. It is available at 2022 WL 1810614 and

included at App. 26a–46a.

JURISDICTION

The Fourth Circuit entered judgment on March

29, 2024, and denied a timely petition for panel and

en banc rehearing on May 28, 2024. On August 6,

2024, Chief Justice John Roberts extended the time

within which to file a petition for a writ of certiorari

through October 25, 2024. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions—42 U.S.C.

§ 233 and 42 U.S.C. § 254b—are reproduced in the

Appendix at 49a–68a and 69a–116a, respectively.

STATEMENT

This case arises from a federally-supported

health center’s alleged failure to safeguard its

patients’ confidential information, and a resulting

dispute as to the proper defendant to answer for

plaintiff’s claims.

Plaintiff Joann Ford, a patient of Petitioner

Sandhills, filed suit in Pennsylvania’s Chesterfield

County Court of Common Pleas in 2021, alleging

Sandhills failed to safeguard personally identifiable

and protected health information it had collected from

her as a condition, and in the course, of providing her

2

health care. App. 5a, 8a. 1 Plaintiff’s information was

disclosed when Sandhills’s data storage platform was

breached by third-party threat actors. App. 6a–7a.

Sandhills is a community-based “health center”

funded in part under 42 U.S.C. § 254b and deemed by

the Secretary of the United States Department of

Health and Human Services (HHS) to be a Public

Health Service (PHS) employee under 42 U.S.C.

§ 233(g) and (h). App. 6a, 27a. Deemed equivalent to

a PHS employee, Sandhills is entitled to the

protections of the Emergency Health Personnel Act of

1970, Pub. L. No. 91-623, 84 Stat. 1868 (Dec. 31,

1970), codified at 42 U.S.C. § 233(a) et seq., which

immunizes PHS employees from civil actions “arising

out of the performance of medical or related functions

within the scope of their employment by barring all

actions against them for such conduct.” Hui v.

Castaneda, 559 U.S. 799, 806 (2010); accord

Friedenberg v. Lane County, 68 F.4th 1113, 1125 (9th

Cir. 2023). Considering the breadth of § 233(a), this

Court previously held, unanimously, that PHS Act

immunity is sufficiently “comprehensive” to cover

“both known and unknown causes of action.” Hui, 559

U.S. at 806, 810.

Sandhills’s status as a “deemed” PHS employee

is authorized by the Federally Supported Health

Centers Assistance Act (FSHCAA) of 1992, as

amended, which extends to § 254b health centers—

and their officers, board members, employees, and

1 Plaintiff styled her complaint as a proposed nationwide class

action. App. 8a. The complaint defines the putative class as

including current and former Sandhills patients “whose PII or

PHI was exposed to an unauthorized party.” Id.

3

certain contractors—the same absolute immunity 42

U.S.C. § 233(a) has afforded to PHS employees since

1970. 42 U.S.C. § 233(g)(1)(A); see Pub. L. No. 102501, 106 Stat. 3268 (Oct. 24, 1992) (enacting threeyear demonstration project); Pub. L. No. 104-73, 109

Stat. 777 (Dec. 26, 1995) (making program permanent

and adding procedural protections for benefit of

health centers and their personnel). The FSHCAA

was passed after Congress determined: (1) private

malpractice insurance expenses constituted one of

health centers’ most significant expenses; (2) over $50

million had been spent on insurance premiums for

Fiscal Year 1989; and (3) less than ten percent of

money spent on premiums had been “paid out in

actual claims payments and related costs.” H.R. Rep.

No. 104-398 at 4–6 (1995), reprinted in 1995

U.S.C.C.A.N. 767, 769. As amended, the statute

provides for a prospective application-and-approval

process through which health centers request and

receive “final and binding” confirmation from HHS

that they are deemed to be PHS employees for a

specified period. 42 U.S.C. § 233(g)(1)(A)–(D); see also

H.R. Rep. No. 104-398, at 3–4.

Based on its deemed federal status, Sandhills

removed Plaintiff’s suit to the United States District

Court for the District of South Carolina, pursuant to

42 U.S.C. § 233(l)(2) and 28 U.S.C. § 1442(a)(1), and

moved to substitute the United States in its place to

vindicate its § 233(a) immunity. App. 5a, 9a–10a. The

district court granted the motion, concluding

Sandhills was “entitled to absolute immunity,” App.

35a, because Plaintiff’s claims, based on “the alleged

data breach . . . arose out of Sandhills’s performance

of medical or related functions within the scope of its

4

employment as a deemed PHS employee.” App. 37a

(citing Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.

2000)). Noting its construction of § 233(a) aligned

with that of courts across the country, the district

court determined that Congress’s inclusion of “related

functions” in the provision’s recitation of immunized

conduct covers PHS employee “job functions . . .

‘interwoven’ with providing medical care.” App. 38a

(collecting cases). In the district court’s estimation,

Sandhills’s activity in protecting patient information

fulfilled a function “interwoven” with its medical

functions, in part based on Sandhills’s statutory

obligations to maintain patient confidentiality, a

factor other courts had found helpful in assessing the

connection between medical and other functions. App.

38a–40a.

After substituting the United States in

Sandhills’s place, the district court dismissed the

action because Plaintiff had failed to exhaust her

administrative remedies under the Federal Tort

Claims Act (FTCA). App. 11a–12a. Plaintiff’s appeal

to the Fourth Circuit challenged only the district

court’s substitution order. App. 12a.

The Fourth Circuit reversed. App. 25a. In its

view, Sandhills’s safeguarding of patient information

“is too removed from the provision of health care to

amount to a ‘related’ function,” App. 12a, which it

construed to mean “a field of health care outside of

medicine, surgery, or dentistry,” App. 18a. Applying

that construction, the Fourth Circuit concluded that

Sandhills was not immune from suit because its

failure to protect its patients’ information did not

occur “because of Sandhills’[s] performance of the

5

provision of health care.” App. 20a. The Fourth

Circuit’s interpretation of “related functions” is a

result of its expressed desire to find a “limiting

principle” to curtail the scope of § 233(a) immunity.

See App. 21a. In reaching its holding, the court cited,

but did not examine, this Court’s decisions in Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 114–15

(2001) and Yates v. United States, 574 U.S. 528, 544

(2015) (plurality opinion). App. 17a.

The Fourth Circuit did not acknowledge the

conflict between its decision and Friedenberg v. Lane

County, 68 F.4th 1113 (9th Cir. 2023), which rejected

the position that § 233(a) “limits protection for

deemed PHS employees to claims where the tortious

conduct occurs during services provided to patients,”

id. at 1125 (quotation marks omitted). The Fourth

Circuit likewise did not address the conflict its

holding creates with the decisions Friedenberg

endorsed.

REASONS FOR GRANTING THE PETITION

I.

The Fourth Circuit’s Restriction of

§ 233(a) Immunity to Torts Occurring

During the Provision of Medical Care

Creates a Conflict in the Lower Courts

The Fourth Circuit’s significant narrowing of

§ 233(a) immunity—as applying only to PHS

employees’ “performance of the provision of health

care,” App. 20a—creates an untenable conflict with

the Ninth Circuit’s decision in Friedenberg v. Lane

County, 68 F.4th 1113 (9th Cir. 2023), and the Second

Circuit’s decision in Cuoco v. Moritsugu, 222 F.3d 99

6

(2d Cir. 2000). The Fourth Circuit’s unnatural

construction reduces Congress’s provision of

“comprehensive” immunity to nothing more than

garden-variety medical malpractice coverage,

permitting its application only where a plaintiff is

“injured by any health care provided by [a PHS

employee].” Compare App. 22a with Hui, 559 U.S. at

806, 810 (recognizing “broad” language in § 233(a)

confers a “comprehensive immunity” right). In

contrast, Friedenberg and Cuoco read the statute in

alignment with the maxim that to avoid rendering

Congress’s chosen words superfluous—thereby

undermining statutory purpose—courts consider both

“specific context” and “the broader context of the

statute as a whole” and “must ‘give effect, if possible,

to every clause and word of [the] statute.’” Fischer v.

United States, 144 S. Ct. 2176, 2183 (2024) (alteration

in original) (quoting Williams v. Taylor, 529 U.S. 362,

404 (2000), and Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997)).

In Friedenberg, the Ninth Circuit concluded

that Congress, in “plain text,” provided an immunity

right to PHS employees that “plainly encompasses

damages stemming from the performance of medical

and ‘related’ functions.” Friedenberg, 68 F.4th at 1128

(reversing district court denial of immunity from suit

alleging health center personnel failed to report

psychiatric patient’s noncompliance with courtordered treatment). Considering the meaning of

“related functions” as an issue “of first impression in

[that] circuit,” the Ninth Circuit held the relevant

“statutory language clearly shows that immunity is

not tied to whether the tort transpired in caring for

the patient,” id. at 1127, and, consistent with this

7

Court’s holding in Hui, 559 U.S. at 801–02, “does not

depend on whether the [plaintiff’s] claim is framed as

one of medical malpractice.” Friedenberg, 68 F.4th

1127–28 (collecting decisions of courts in First,

Second, Fourth, Ninth, and Tenth circuits in accord).

Although the meaning and scope of the

statute’s inclusion of “related functions” within its

expression of immunized conduct had not been

subject to the Ninth Circuit’s construction prior to

Friedenberg, the court did not work on a blank slate.

Critical to the lower court conflict at issue here is the

Ninth Circuit’s endorsement in Friedenberg of the

Second Circuit’s decision in Cuoco, 222 F.3d at 108.

There, more than twenty years prior, the Second

Circuit had likewise examined the “plain meaning” of

§ 233(a) and rejected the notion that its immunity is

limited to medical malpractice claims, finding

“nothing in the language of § 233(a) to support that

conclusion” and observing that—unlike in § 233(a)—

“[w]hen Congress has sought to limit immunity to

medical malpractice claims it has done so explicitly.”

Cuoco, 222 F.3d at 108; see also Brignac v. United

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

(explaining Cuoco rejected “proposition that § 233(a)

applies only to medical malpractice suits or that

immunity in turn only extends to medical employees

in malpractice cases” (internal quotations and

citations omitted)). 2

Cuoco involved the constitutional claims of a preoperative

transgendered individual who sought to receive estrogen

treatments while detained in a federal prison facility. 222 F.3d

at 103. The diagnosis and treatment allegations at issue in

Cuoco—which the Second Circuit viewed as “the heartland of

2

8

The Fourth Circuit reached the opposite

conclusion. Purporting to apply a plain language

approach, the Fourth Circuit opined:

As a matter of plain meaning, medical,

surgical, and dental care all fit into one

category – they are adjectives that

describe various fields of health care.

Staying true to Congress’[s] intent, we

read a “related” function as fitting

within that category, or in other words,

a field of health care outside of medicine,

surgery, or dentistry.

App. 17a–18a (footnote omitted). The Fourth Circuit’s

unnaturally cramped reading stems from its

perception that there was “no limiting principle to

Sandhills’[s] position.” App. 21a. But as the Ninth

Circuit had concluded in Friedenberg, the very

reading on which the Fourth Circuit landed “would

render the ‘related functions’ language in the statute

superfluous.” Friedenberg, 68 F.4th at 1128

(endorsing holding expressed in Pomeroy v. United

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

2018), that “statute must cover a broader scope of

activity than the delineated categories alone, or else

‘related functions’ would be mere superfluity”).

Reading “related functions” out of the statute exposes

medical functions”—made it a straightforward case. Krandle v.

Refuah Health Ctr., Inc., No. 22-cv-4977, 2024 WL 1075359, at

*4 (S.D.N.Y. Mar. 12, 2024). This was so even though defendant

“Moritsugu’s alleged misdeeds related only to his decision, as the

principal medical official for the Bureau of Prisons, not to

authorize a particular medical treatment for Cuoco.” Id. (quoting

Cuoco, 222 F.3d at 109).

9

health centers (in the Fourth Circuit in particular) to

lawsuits and liability resulting from official conduct

numerous courts have recognized as immunized. Id.

at 1129 n.9. The Fourth Circuit’s decision eliminates

immunity from actions resulting from a range of

administrative and operational duties related to

medical care, e.g., hiring, physician credentialing, and

supervision decisions; providers’ obligations to report

suspected abuse and foreseeable risks to both patients

and third parties; and the provision of required

support services such as nutrition, residential

monitoring, care plan adherence, and case

management.

Although the Ford court cited Friedenberg for

the truism that the FSHCAA extends PHS Act

immunity to federally-supported health centers, App.

13a, the court did not reconcile its decision with the

Ninth Circuit’s clearly contrary holding. As to Cuoco,

the Fourth Circuit incorrectly implied the Second

Circuit’s holding limited immunity to actions based

on conduct undertaken “in [a health center’s] capacity

as a doctor responsible for, [or] in the course of

rendering medical treatment.” App. 20a (second

alteration in original). Cuoco in no way suggested that

§ 233(a) immunity is limited to “doctor[s] responsible

for treatment” or to actions arising from “rendering

medical treatment.” Krandle v. Refuah Health Ctr.,

Inc., No. 22-cv-5039, 2024 WL 1075359, at *4

(S.D.N.Y. March 12, 2024) (publication forthcoming).

It is not the job of the courts to “reimagine

Congress’s handiwork.” Health and Hosp. Corp. of

Marion Cnty. v. Talevski, 599 U.S. 166, 178 (2023). In

assessing the reach of § 233(a) immunity, the Ninth

10

Circuit’s decision “implement[s] Congress’s choices

rather than remake[s] them.” Id.; see Friedenberg, 68

F.4th at 1127–28. The Court should grant certiorari

to correct the Fourth Circuit’s construction of § 233(a)

as meaning much less than what Congress, in plain

language, expressed.

II.

The Fourth Circuit’s Construction of

§ 233(a) Conflicts with this Court’s

Statutory Interpretation Precedent

Review of the Fourth Circuit’s decision is

warranted for a second reason. The decision’s

atextual result stems from the lower court’s

formalistic application of two familiar and closely

related canons of construction—noscitur a sociis and

ejusdem generis—in a manner that conflicts with this

Court’s

established

statutory

interpretation

precedent. The Fourth Circuit cited two decisions of

this Court—Circuit City Stores, Inc. v. Adams, 532

U.S. 105 (2001) and Yates v. United States, 574 U.S.

528 (2015) (plurality opinion)—as the basis for its

construction of “related functions” to mean “various

fields of health care,” having concluded that “the

language ‘related functions’ acts as a general catchall

for . . . the performance of medical, surgical, [or]

dental’ functions.” App. 17a (alteration in original).

The decision cannot be reconciled with the precedent

it purports to follow.

The Court uses noscitur a sociis to “avoid

ascribing to one word a meaning so broad that it is

inconsistent with its accompanying words, thus

giving unintended breadth to the Acts of Congress.”

Yates, 574 U.S. 528, at 543 (quoting Gustafson v.

11

Alloyd Co., 513 U.S. 561, 575 (1995)). It “typically

use[s] ejusdem generis to ensure that a general word

will not render specific words meaningless,” CSX

Transp., Inc. v. Ala. Dept. of Revenue, 562 U.S. 277,

295 (2011), proceeding on the inference that

Congress, in supplying a list of specific items followed

by a “catchall” phrase, was “focused on [a] common

attribute when it used the catchall phrase.” Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 224–25 (2008) (citing

United States v. Aguilar, 515 U.S. 593, 615 (1995)

(Scalia, J., concurring in part and dissenting in part)).

The Court has long and clearly instructed that

however well established, any interpretive canon is,

at most, “only an instrumentality for ascertaining the

correct meaning of words when there is uncertainty.”

United States v. Powell, 423 U.S. 87, 91, (1975)

(quoting Gooch v. United States, 297 U.S. 124, 128

(1936)). After all, “[r]esolution of the pros and cons of

whether a statute should sweep broadly or narrowly

is for Congress.” United States v. Rodgers, 466 U.S.

475, 484 (1984). Accordingly, lower courts are

cautioned against “woodenly apply[ing] limiting

principles every time Congress includes a specific

example along with a general phrase.” Ali, 552 U.S.

at 227 (citation omitted). Congress did not draft the

relevant portion of § 233(a) in a manner inviting

application of limiting canons to ascertain uncertain

meaning. The Fourth Circuit’s error in nonetheless

applying the canons is well summed up in its own

acknowledgement that after both “employing the

canons of construction and considering the plain

meaning of the words in § 233(a), we discern no

ambiguity in the phrase ‘related functions.’” App. 19a.

Aside from having a “plain meaning,” App. 17a, 19a,

12

§ 233(a)’s key phrase does not follow the syntactic

format the canons aid in interpreting: a list of specific

nouns followed by a catchall noun that includes the

specific items and others of like kind. Cf. Southwest

Airlines Co. v. Saxon, 596 U.S. 450, 454, 463 (2022)

(construing statute’s exemption of “seamen, railroad

employees, or any other class of workers engaged in

foreign or interstate commerce”); Powell, 423 U.S. at

318, n.3 (analyzing statute proscribing mailing of

“pistols, revolvers, and other firearms capable of

being concealed on the person”). Rather than

following that familiar format, § 233(a) provides a

disjunctive list of four categorical adjectives—

“medical, surgical, dental, or related”—each of which

modifies the broad, general noun—“functions”—that

follows. The fourth adjective, “related,” does some

extra work: it both conveys a fourth category of

functions for which PHS employees are immunized

and defines itself by relation to the three preceding

categories of functions. Each type of function is

expressed in “sweeping” language, defying the Fourth

Circuit’s narrow construction. Cf. Rodgers, 466 U.S.

at 480 (rejecting “narrow, technical definition” of

statutory term when it “clashes strongly” with

“sweeping” language in same sentence).

The Fourth Circuit’s decision produces a

“result that the English language tells us not to

expect.” Carachuri-Rosendo v. Holder, 560 U.S. 563,

575 (2010) (noting Court is “very wary” of such

results) (internal citations and quotation marks

omitted). “Related,” the Court has observed, is

“context specific,” referring to “a relationship or nexus

of some kind,” the “nature and strength [of which] will

be informed by context.” Dubin v. United States, 599

13

U.S. 110, 119 (2023) (internal citations omitted). In

its search for a limiting principle, the Fourth Circuit

looked past the key limit Congress did place on

“related functions” in § 233(a)—that such functions

must relate to “medical, surgical, [or] dental . . .

functions.” § 233(a). “Related functions” is not a

catchall phrase. It is, instead, a broad category of

functions onto itself, like the three general categories

that precede it. A medical function, in other words, is

not a “related” function any more than a medical

function is a surgical function or a dental function.

Tellingly, the Fourth Circuit makes no effort to

identify what might constitute a “related” function if

such functions really mean functions within fields of

health care that are not medical, surgical, or dental.

In contrast, both Circuit City and Yates

concerned statutes in which Congress did provide a

list of specific nouns (seamen and railroad employees;

records and documents) followed by a more general

noun (class of workers; tangible object). In each, the

general noun can fairly be construed to include the

preceding, specific nouns: seamen and railroad

employees are classes of workers; documents and

records are, of course, tangible objects. Cir. City, 532

U.S. at 138; Yates, 574 U.S. at 550. The Court limited

the general nouns to something narrower than all

classes of workers and all tangible objects,

respectively, because a literal reading would have

resulted in superfluity and conflicted with purpose.

In Circuit City, the Court construed a general

phrase exempting from enforced arbitration the

employment contracts of “any other class of workers

engaged in foreign or interstate commerce” to a

14

narrower subset than virtually all such contracts,

because a literal reading would have “failed to give

independent effect to the statute’s enumeration of the

specific categories of workers which precedes it.” Id.

at 111, 112. Statutory purpose also played a role:

sweeping a broad swath of contracts out of the Act’s

scope would have significantly undermined the

enforcement of arbitration agreements in federal

courts under a law enacted in “response to hostility of

American courts to the enforcement of arbitration

agreements.” Id. at 111, 118–19.

In Yates, the plurality construed “tangible

object” with reference to nearby text setting forth the

actions Congress criminalized when done to

documents, records, and tangible objects: altering,

destroying, mutilating, concealing, covering up,

falsifying, or making a false entry in. Yates, 574 U.S.

at 550–52. The Court concluded that the final two

verbs, “‘falsif[y]’ and ‘mak[e] a false entry in,’ typically

take as grammatical objects records, documents, or

things used to record or preserve information, such as

logbooks or hard drives.” Id. at 529; see also id. at 551

(“[F]ocusing on the verbs, the category of nouns

appears to be filekeeping.”) (Alito, J., concurring).

Bolstering this construction was the fact that reading

“tangible object” in § 1519 of that Act to mean “any

and every physical object” would make another

distinct section of Sarbanes-Oxley entirely surplus.

Id. at 542.

The Fourth Circuit’s wooden application of a

limiting principle does violence to the statute’s plain

language to solve a superfluity problem that doesn’t

exist. As the Court recognized in Hui, Congress

15

employed broad language in § 233(a) to provide PHS

employees a comprehensive immunity right. Hui, 559

U.S. at 806, 810. 3 Congress conferred the immunity

right to further public health, while, in the same

provision, protecting the federal fisc by limiting the

remedy for covered PHS employee conduct to only

that available under the FTCA. The FTCA, rather

than the PHS Act, imposes the limiting principle the

Fourth Circuit sought: it is a carefully tailored,

limited waiver of sovereign immunity that excludes,

for example, most intentional torts and all class

action suits. 28 U.S.C. § 2675(a) (requiring

satisfaction of administrative prerequisites to suit);

In re Agent Orange Prod. Liab. Litig., 818 F.2d 194,

198 (2d Cir. 1987) (holding district court lacked

jurisdiction over FTCA class action where

“administrative prerequisites of suit have not been

satisfied by or on behalf of each individual claimant”)

(collecting cases); see also Founding Church of

Scientology of Wash., D.C., Inc. v. Fed. Bureau of

Investigation, 459 F. Supp. 748, 754 (D.D.C. 1978)

(“All the courts that have considered this issue have

concluded that every member of a class must exhaust

his administrative remedies.”) (collecting circuit court

authority).

3 The Hui Court noted “[t]he breadth of the words ‘exclusive’ and

‘any’” and “the provision’s inclusive reference to all civil

proceedings arising out of ‘the same subject-matter’” as

indicative of Congress’s intent to “bar all actions against” PHS

employees “actions arising out of the performance of medical or

related functions within the scope of their employment.” Hui,

559 U.S. at 806.

16

III.

The Fourth Circuit’s Decision Must be

Corrected

The question presented in this petition is both

important and recurring, calling for prompt

resolution and a uniform national rule. Congress’s

provision of official immunity to PHS personnel, and

its extension of that immunity to the legislativelycreated health center program, furthers public health

and makes good economic sense. See Three Lower

Cnties. Cmty. Health Servs., Inc. v. Maryland, 498

F.3d 294, 303 (4th Cir. 2007) (health centers serve

“vital function in delivering healthcare to

underserved populations” nationwide); H.R. Rep. No.

104-398 at 6 (recognizing “significant savings . . .

redirected to patient care” through FSHCAA

enactment). The Fourth Circuit’s decision threatens

both objectives.

The impact of the Fourth Circuit’s decision is

not limited to Sandhills. Its reduction of PHS Act

immunity alters the scope of official immunity for not

only federally-funded health centers like Sandhills—

which collectively serve tens of millions of patients

each year—but also commissioned officers and

employees of the PHS. 4 The immunity § 233(a)

The health center program consists of more than 1,300

federally-funded, safety-net health care providers that

collectively served more than 30 million individuals in the most

recent year for which data is available. See A. Pillai, Kaiser

Family Foundation, Recent Trends in Community Health Center

Patients, Services, and Financing (Apr. 19, 2024),

https://www.kff.org/medicaid/issue-brief/recent-trends-incommunity-health-center-patients-services-and-financing/. The

PHS Commissioned Corps, a uniformed service, includes

4

17

confers on actual and deemed PHS personnel is, by

design, “the same,” § 233(g)(1)(A), because, as the

main source of care for low-income individuals and

families nationwide, health centers “perform[] a job

that . . . the federal government would have had to

perform itself: assist[ing] and help[ing] to carry out

the duties of the federal government to provide

medical care to the indigent.” Agyin v. Razmzan, 986

F.3d 168, 177 (2d Cir. 2021). 5

If the issue presented is not resolved, the

overarching purpose of § 233(a) immunity—to

advance public health—will be frustrated. Congress

used broad—but clear—language to shield actual and

deemed PHS employees from all liability arising out

of their official conduct, so they can confidently and

fully devote themselves to the performance of their

“health and health-related functions” as Congress

intended. 42 U.S.C. § 233(h)(1); H.R. Rep. No. 104-398

approximately 6,000 officers stationed at more than 800 duty

stations throughout the United States who are subject to both

national and international deployment in response to public

health emergencies. U.S. PHS Doctrine at 2, 4, 11 (Jan. 2021),

https://dcp.psc.gov/ccmis/PDF_docs/USPHS%20Commissioned

%20Corps%20Doctrine.pdf

5 In some communities, “these centers may be the only primary

care providers available to certain vulnerable populations.”

Gov’t Accountability Office, G.A.O. 19-496, Health Centers:

Trends in Revenue and Grants Supported by the Community

Health

Center

Fund

at

1

(2019),

https://www.gao.gov/products/gao-19-496. See also generally,

Nat’l Ass’n of Cmty. Health Ctrs. Community Health Center

Chartbook

2024

(Jan.

2022),

https://www.nachc.org/resource/community-health-centerchartbook/ (hereinafter NACHC Chartbook).

18

at 5–7 (noting 1995 FSHCAA legislation was enacted

to resolve “uncertainty over the scope of FTCA

coverage under the program”). Under the Fourth

Circuit’s interpretation, health centers will be forced

to do precisely what Congress sought to prevent:

spend their scarce resources on costly liability

insurance to cover their official, day-to-day activities. 6

No purpose is served by allowing this purely

legal issue to further percolate in the lower courts.

The Ninth and Second Circuits have correctly decided

the question in keeping with the statute’s language

and its cost-effective, public health purpose, following

this Court’s longstanding statutory construction

precedent. Geographic divergence and uncertainty as

to the extent of official immunity in a nationwide,

federally-funded program is destructive, particularly

for the many health centers that operate across state

lines and Circuit boundaries.

Finally, the question presented is recurring,

and delay in correcting the Fourth Circuit’s error and

Congress enacted FSHCAA to allows health centers “to

reallocate desperately needed health care dollars from the

coffers of private medical malpractice insurance companies to

direct services for hundreds of thousands more poor and rural

Americans.” 141 Cong. Rec. H14273–07, 1995 WL 733808 (daily

ed. Dec. 12, 1995) (statement of Rep. Wyden); see also, e.g., id.

(statement of Rep. Bilirakis) (FSHCAA’s original purpose “was

to relieve health centers of the burdensome costs of private

malpractice insurance by extending [FTCA] coverage to health

center employees”). That said, “[w]hile 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.”

Friedenberg, 68 F.4th at 1128; see id. at 1127 n.7.

6

19

definitively resolving the issue will irreparably harm

health centers and their patients. 7 Permitting further

7 The proliferation of class action lawsuits against deemed PHS

employee health centers arising out of data-breach and

cybersecurity incidents confirms the unending nature of the

“related functions” issue absent a definitive rule. The following

class actions, grouped by circuit, are illustrative:

Second Circuit: Krandle v. Refuah Health Cntr., Inc., No. 22-cv4977, 2024 WL 1075359, at *3, *9–10 (S.D.N.Y. Mar. 12, 2024)

(holding, in putative class action, that “[deemed health center]’s

alleged duty to safeguard PII and PHI is a ‘medical . . . or related

function’”); Marshall v. Lamoille Health Partners, Inc., No. 22cv-166, 2023 WL 2931823, at *4–5 (D. Vt. Apr. 13, 2023) (holding

“protection from cyberattack” is not a “related function” within

the meaning of § 233(a)).

Third Circuit: Lyston v. Cmty. Health Care, Inc., No. 24-cv-00097

(D.N.J. filed Jan. 5, 2024), ECF No. 18 (consolidating five

separate putative class actions against deemed health center).

Fourth Circuit: Mixon v. CareSouth Carolina, Inc., No. 22-cv269, 2022 WL 1810615, at *7 (D.S.C. June 2, 2022) (substituting

U.S. in deemed health center’s place in data-breach class action).

Fifth Circuit: Lockhart v. El Centro Del Barrio, No. 5:23-cv01156 (W.D. Tex. filed Sept. 18, 2023), ECF No. 19 (consolidating

four separate putative class actions against deemed health

center); Marin v. El Centro Del Barrio, No. 5:24-cv-00571 (W.D.

Tex. filed May 24, 2024); Gonzalez v. El Centro Del Barrio, No.

5:24-cv-00852 (W.D. Tex. filed Aug. 2, 2024 ); Delagarza v. El

Centro Del Barrio, No. 24-cv-00613 (W.D. Tex. filed June 4,

2024).

Eighth Circuit: Hale v. ARcare, Inc., No. 3:22-cv-00117, 2024 WL

1016361, at *3 (E.D. Ark. Mar. 8, 2024) (denying deemed health

center defendant’s claim to § 233(a) immunity from putative

class action arising out of data-breach incident), appeal filed, No.

24-1726 (8th Cir. Apr. 8, 2024).

20

litigation in the lower courts erodes the absolute

immunity at issue, which, more than a “mere defense

to liability” is a right not to be a party to litigation.

See Mitchell v. Forsyth, 472 U.S. 511, 525–27 (1985)

(concluding absolute immunity “is effectively lost if a

case is erroneously permitted to go to trial”).

Curtailing official immunity, in turn, diverts

resources, time, and attention away from scores of

vulnerable health center patients: approximately one

in eleven people in the United States, one in three

people living in poverty, one in nine children, one in

Ninth Circuit: Doe v. Neighborhood Healthcare, No. 21-cv-1587,

2022 WL 17663520, at *1, *8 (S.D. Cal. Sept. 8, 2022) (affording

deemed health center § 233(a) immunity for an “alleged data

breach” by substituting United States in its place, over U.S.’s

objection); Johnson v. Petaluma Health Ctr., Inc., No. 3:23-cv03777 (N.D. Cal. filed July 28, 2023); Gerson v. Petaluma Health

Ctr., Inc., No. 3:23-cv-03870 (N.D. Cal. filed Aug. 2, 2023);

Margolies v. Lifelong Med. Care, No. 3:24-cv-00340 (N.D. Cal.

filed Jan. 19, 2024); Bradford v. Asian Health Servs., No. 24-cv01060, 2024 WL 2883672 (N.D. Cal. June 7, 2024), appeal filed,

No. 24-3702 (9th Cir. June 13, 2024); L.V. v. AltaMed Health

Serv. Corp., No. 2:23-cv-09658 (C.D. Cal. filed Nov. 14, 2023);

Aleuta v. Cmty. Clinic of Maui, Inc., No. 1:24-cv-00431 (D. Haw.

filed Oct. 2, 2024); Kaiwi v. Cmty. Clinic of Maui, Inc., No. 1:24cv-00440 (D. Haw. filed Oct. 8, 2024); Johnson v. Cmty. Clinic of

Maui, Inc., No. 1:24-cv-00443 (D. Haw. filed Oct. 11, 2024);

Barnes v. Sea Mar Cmty. Health Ctrs. No. 2:22-cv-181, 2022 WL

1541927, at *3 (W.D. Wash. Apr. 27, 2022), rep. and rec. adopted,

2022 WL 1540462 (May 16, 2022).

Eleventh Circuit: Orr v. Fla. Cmty. Health Ctrs., Inc., No. 9:24cv-81032 (S.D. Fla. filed Aug. 26, 2024); Capellan v. Fla. Cmty.

Health Ctrs., Inc., No. 9:24-cv-81037 (S.D. Fla. filed Aug. 26,

2024); Sparnicht v. Fla. Cmty. Health Ctrs., Inc., No. 9:24-cv81034 (S.D. Fla. filed Aug. 26, 2024); Fulton v. Fla. Cmty. Health

Ctrs., Inc., No. 9:24-cv-81033 (S.D. Fla. filed Aug. 26, 2024);

Simmons v. Fla. Cmty. Health Ctrs., Inc., No. 9:24-cv-81036

(S.D. Fla. filed Aug. 26, 2024).

21

four people of a racial or ethnic minority, one in five

uninsured persons, and one in six Medicaid

beneficiaries. NACHC Chartbook, Fig. 2-1.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

MATTHEW SIDNEY FREEDUS

Counsel of Record

ROSIE DAWN GRIFFIN

FELDESMAN LEIFER LLP

1129 20th Street NW, Suite 400

Washington, DC 20036

202.466.8960

mfreedus@feldesman.com

rgriffin@feldesman.com

Counsel for Petitioner

Sandhills Medical Foundation,

Inc.

OCTOBER 2024

22