Petition for Writ of Certiorari — Centerville Clinics Inc., Petitioner v. Jane Doe

NO. ______

IN THE

Supreme Court of the United States

______________

CENTERVILLE CLINICS INC.,

Petitioner,

v.

JANE DOE, 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 Third 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

QUESTIONS PRESENTED

Jurisdiction under two removal statutes is at

issue. A provision of the Public Health Service Act, 42

U.S.C. § 233(l), provides for removal of any civil action

or proceeding against a defendant the Secretary of the

Department of Health and Human Services has

deemed to be a Public Health Service employee for

purposes of 42 U.S.C. § 233(a) suit immunity. The

federal officer removal statute, 28 U.S.C. § 1442(a)(1),

affords removal jurisdiction to adjudicate “colorable”

federal defenses of “any officer (or any person acting

under that officer) of the United States or of any

agency thereof” sued “for or relating to” acts taken

under color of office.

The questions presented are:

1. Whether 42 U.S.C. § 233(l)(1) obligates the

Attorney General to appear in state court and report

the Secretary’s prior grant of federal employee status

to effectuate removal to federal court—as the Ninth

Circuit determined in Blumberger v. Tilley, 115 F.4th

1113 (9th Cir. 2024)—or, as the Third Circuit

concluded, merely requires an appearance by the

Attorney General, which, if timely, precludes the

defendant from removing under § 233(l)(2).

2. Whether § 1442(a)(1)’s requirement of a

colorable federal defense is satisfied by a deemed

Public Health Service employee’s claim to 42 U.S.C. §

233(a) immunity—as the Second Circuit concluded in

Agyin v. Razmzan, 986 F.3d 168 (2d Cir. 2021)—or, as

the Third Circuit concluded, is insufficient to

establish a colorable federal defense.

i

PARTIES TO THE PROCEEDING

All parties are listed in the caption. Petitioner

Centerville Clinics Inc. was the defendant in

Pennsylvania’s Washington County Court of Common

Pleas and in the United States District Court for the

Western District of Pennsylvania and the appellant in

the Third Circuit. Respondent Jane Doe was the

plaintiff and putative class representative in the state

and district courts and the appellee in the Third

Circuit. Respondent United States entered a limited

appearance in state court but did not participate in

the district court proceedings. Before the Third

Circuit, the United States appeared as an amicus in

support of Appellee Doe.

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

Doe v. Centerville Clinics Inc., No. 2023-2922

(Wash. Cnty. Ct. of Common Pleas) (filed May

8, 2023, removed June 15, 2023)

Doe v. Centerville Clinics Inc., No. 23-cv-1107,

2023 WL 5984337 (W.D. Pa. Sept. 14, 2023)

ii

Doe v. Centerville Clinics Inc., No. 23-2738,

2024 WL 3666164 (3d Cir. Aug. 6, 2024)

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

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES .................................... vi

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

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

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

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

REASONS FOR GRANTING THE PETITION .........7

I.

The Third Circuit’s Construction of 42 U.S.C.

§ 233(l) Conflicts with a Decision of the Ninth

Circuit and Cannot be Squared with this

Court’s Precedents ..............................................8

II.

The Third Circuit’s Interpretation of 28 U.S.C.

§ 1442(a)(1) Misapplies this Court’s Precedents

and Conflicts with Decisions of the Second and

Ninth Circuits ...................................................15

III. The Third Circuit’s Decision Must be

Corrected ...........................................................19

iv

CONCLUSION ..........................................................23

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

Appendix B ..............................................................10a

Appendix C ..............................................................18a

Appendix D ..............................................................20a

Appendix E ..............................................................44a

Appendix F ..............................................................47a

v

TABLE OF AUTHORITIES

Cases

Agyin v. Razmzan,

986 F.3d 168 (2d Cir. 2021) .................. 3, 8, 15, 18, 22

Allen v. Christenberry,

327 F.3d 1290 (11th Cir. 2003) .............................9, 13

Arizona v. Manypenny,

451 U.S. 232 (1981) ...................................................17

Blumberger v. Tilley,

115 F.4th 1113 (9th Cir. 2024) ... 3, 8–10, 12–15, 18–21

Celestine v. Mount Vernon Neighborhood

Health Ctr.,

403 F.3d 76 (2d Cir. 2005) ........................................14

Cohens v. Virginia,

19 U.S. 264 (1821) .......................................................8

Colo. River Water Conservation Dist. v. U.S.,

424 U.S. 800 (1976) .....................................................8

Colorado v. Symes,

286 U.S. 510 (1932) ...................................................17

Cuoco v. Moritsugu,

222 F.3d 99 (2d Cir. 2000) ..........................................4

De Martinez v. Lamagno,

515 U.S. 417 (1995) ....................................... 11, 12, 20

vi

El Rio Santa Cruz Neighborhood Health Ctr.

v. U.S. Dep’t of Health & Hum. Servs.,

396 F.3d 1265 (D.C. Cir. 2005) .................................13

Friedenberg v. Lane County,

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

Health and Hosp. Corp. of Marion Cnty.

v. Talevski,

599 U.S. 166 (2023) ...................................................21

Hui v. Castaneda,

559 U.S. 799 (2010) ................................... 3, 15, 16, 21

Hunter v. Bryant,

502 U.S. 224 (1991) ...................................................12

Jefferson Cnty., Ala. v. Acker,

527 U.S. 423 (1999) ....................................... 15, 17, 18

Mayor & Aldermen of City of Nashville

v. Cooper,

73 U.S. 247 (1867) .....................................................16

Mesa v. California,

489 U.S. 121 (1989) ...................................................16

Mitchell v. Forsyth,

472 U.S. 511 (1985) .............................................12, 22

Osborn v. Haley,

549 U.S. 225 (2007) .............................................15–16

Sherman v. Sinha,

843 F. App’x 870 (9th Cir. 2021) .................................9

vii

Smith v. United States,

502 U.S. 1017 (1991) .................................................20

Tennessee v. Davis,

100 U.S. 257 (1880) ...................................................17

Three Lower Cnties. Cmty. Health Servs.,

Inc. v. Maryland,

498 F.3d 294 (4th Cir. 2007) ...............................21, 22

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ...................................................17

Willingham v. Morgan,

395 U.S. 402 (1969) .............................................15, 17

Constitutional Provisions, Statutes, and Rules

U.S. Constitution Art. III.................... 8, 11, 12, 15, 16

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) ........................................... 3, 4, 7, 9, 22

Federally Supported Health Centers

Assistance Act of 1995

Pub. L. No. 104-73, 109 Stat. 777

(Dec. 26, 1995) .............................................................3

42 U.S.C. § 233 .......................................... 2, 4, 6, 7, 14

viii

42 U.S.C. § 233(a).................. 3, 6, 7, 10, 15, 16, 18, 21

42 U.S.C. § 233(g) ............................ 3–5, 10, 11, 13, 17

42 U.S.C. § 233(h) ................................. 3–5, 10, 11, 13

42 U.S.C. § 233(l)(1) .............................. 5, 9–11, 14, 15

42 U.S.C. § 233(l)(2) ...................................... 5, 6, 7, 13

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

28 U.S.C. § 1442(a)(1) ....................... 2, 6, 7, 15, 17–21

28 U.S.C. § 2679(d)(1)–(3) .........................................16

Other Authorities

141 Cong. Rec. H14273–07, 1995 WL 733808

(daily ed. Dec. 12, 1995) (statement of Rep.

Wyden) .........................................................................4

Akash Pillai et al., Kaiser Family

Foundation, Recent Trends in Community

Health Center Patients, Services, and

Financing (Apr. 19, 2024) .........................................19

Black’s Law Dictionary (10th ed. 2014) ...................16

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

1995 U.S.C.C.A.N. 767 ..........................................4, 22

ix

NO. ______

IN THE

Supreme Court of the United States

CENTERVILLE CLINICS INC.,

Petitioner,

v.

JANE DOE,

and

Respondent,

UNITED STATES,

Respondent.

______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

______________

PETITION FOR WRIT OF CERTIORARI

______________

Centerville

Clinics

Inc.

(Centerville)

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Third Circuit.

OPINIONS BELOW

The Third Circuit’s unpublished decision is

reported at 2024 WL 3666164 and reproduced at App.

1a–9a. The district court’s unpublished remand order

1

is available at 2023 WL 5984337 and included at App.

10a–17a.

JURISDICTION

The Third Circuit entered judgment on August

6, 2024 and denied a timely petition for panel and en

banc rehearing on October 9, 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 28 U.S.C. § 1442(a)(1)—are reproduced at

App. 20a–29a and App. 40a–42a, respectively.

STATEMENT

This case arises from a federally-designated

health center’s alleged failure to safeguard its

patients’ confidential information, and a resulting

dispute as to who has the final word on the merits of

the health center’s statutory immunity defense: the

Attorney General or the appropriate federal court.

Plaintiff Jane Doe, a patient of Centerville,

filed suit in Pennsylvania’s Washington County Court

of Common Pleas in 2023, alleging harms arising from

Centerville’s purported use of tracking software on its

website and patient portal. App. 3a, 16a. Plaintiff

styled her complaint as a proposed class action,

defining the class as Centerville patients whose

private health care data was disclosed to

unauthorized third parties. App. 3a, 10a.

Centerville is a non-profit, community-based

“health center” funded in part under 42 U.S.C. § 254b

2

and deemed by the Secretary of the 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. 4a, 5a, 10a, 14a. Deemed

equivalent to a true PHS employee, Centerville is

likewise 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 any civil action or proceeding “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 Blumberger v. Tilley, 115

F.4th 1113, 1117 (9th Cir. 2024); Friedenberg v. Lane

County, 68 F.4th 1113, 1125 (9th Cir. 2023); Agyin v.

Razmzan, 986 F.3d 168, 172 (2d Cir. 2021).

Centerville’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

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.

102-501, 106 Stat. 3268 (Oct. 24, 1992) (enacting

three-year demonstration project); Pub. L. No. 10473, 109 Stat. 777 (Dec. 26, 1995) (making program

permanent and adding procedural protections for

health centers and their personnel). The FSHCAA’s

protections allow health centers “to reallocate

desperately needed health care dollars from the

coffers of private medical malpractice insurance

companies to direct services for hundreds of

3

thousands more poor and rural Americans.” 141

Cong. Rec. H14273–07, 1995 WL 733808 (daily ed.

Dec. 12, 1995) (statement of Rep. Wyden). 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. 1 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 federal 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. A deeming

determination, when positive, is reflected in an HHSissued Notice of Deeming Action (essentially, a

certificate of insurance) for a “calendar year.” 42

U.S.C. § 233(g)(1)(A).

When a deemed PHS employee is sued in state

court, the Attorney General must appear within

fifteen days of notice “and advise such court as to

whether the Secretary has determined under

subsections (g) and (h), that such entity . . . is deemed

to be an employee of the Public Health Service for

1 “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.” Friedenberg, 68 F.4th at 1128; see id.

at 1127 n.7 (citing Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir.

2000)).

4

purposes of this section with respect to the actions or

omissions that are the subject of such civil action or

proceeding.” 42 U.S.C. § 233(l)(1). Removal is

effectuated by the Attorney General’s reporting of the

defendant’s deemed status for the year in which the

events giving rise to the suit occurred. Id. § 233(l)(1).

If the Attorney General “fails” to timely fulfill its

obligation under § 233(l)(1), a deemed defendant may

remove the action itself for a judicial determination

“as to the appropriate forum or procedure” for the

plaintiff’s claims. Id. § 233(l)(2).

Here, fourteen days after receiving notice of

plaintiff’s action, the Attorney General—through a

local Assistant United States Attorney—appeared in

state court “for the limited purpose of notifying the

Court as to whether the Secretary of the U.S.

Department of Health and Human Services. . . has

advised that Centerville [] has been ‘deemed’ to be an

‘employee of the Public Health Service’ with respect

to the actions or omissions that are the subject of this

civil action,” as required by 42 U.S.C. § 233(l)(1). App.

48a. Rather than notify the state court that the

Secretary had deemed Centerville to be a PHS

employee under 42 U.S.C. § 233(g) and (h) with

respect to the period in which the alleged acts or

omissions occurred, the Attorney General’s designee

instead indicated it was awaiting the Secretary’s

recommended coverage determination, which the

Attorney General would then consider in making its

own coverage decision. App. 5a, 48a–49a.

Based on its deemed federal status and the

United States’s failure to remove, Centerville

removed plaintiff’s suit to the United States District

5

Court for the Western District of Pennsylvania,

pursuant to 42 U.S.C. § 233(l)(2) and 28 U.S.C.

§ 1442(a)(1), seeking adjudication of its federal

immunity defense and substitution of the United

States in its place in accordance with 42 U.S.C.

§ 233(a). App. 3a, 11a. Plaintiff moved to remand

within thirty days.

Without argument, the district court granted

plaintiff’s remand motion, concluding: (1) Centerville

was precluded from removing the case under § 233

because “the Attorney General had made a timely

appearance” in state court; and (2) Centerville was

not entitled to remove under § 1442 because “[t]o

permit Centerville to raise § 233 [as its colorable

federal defense] for purposes of § 1442, when it didn’t

abide by the removal procedures of § 233 would

sidestep the framework of § 233.” App. 15a. The

district court remanded “without prejudice to the

United States Attorney General removing the action

upon making the requisite scope certification.” App.

16a. Five days later, the Attorney General notified the

state court of its negative coverage determination,

providing: “the United States Attorney for the

Western District of Pennsylvania has determined

that Defendant Centerville Clinics, Inc. is not deemed

to be an employee of the Public Health Service with

respect to the alleged acts or omissions giving rise to

this case,” and that the “United States will not

intervene in this case or remove it to federal court.”

App. 44a.

The Third Circuit affirmed the district court’s

remand order, concluding that Centerville, despite its

final and binding deemed federal status for the

6

relevant period, had no removal right under either 42

U.S.C. § 233(l)(2) or 28 U.S.C. § 1442(a)(1). App. 6a–

7a, 9a. In the Third Circuit’s estimation, the Attorney

General’s initial, “limited purpose,” App. 48a,

appearance cut off Centerville’s access to a federal

forum under both removal statutes, making the

Attorney General the final arbiter of Centerville’s

immunity defense. App. 3a. The Third Circuit read

§ 233(l) of the PHS Act, as amended by the FSHCAA,

as authorizing the Attorney General to preclude

federal jurisdiction merely by appearing in state

court. App. 6a. As to federal officer removal, the Third

Circuit held that because Ҥ 233 immunity was the

sole basis Centerville provided to satisfy

§ 1442(a)(1)’s federal-defense requirement . . . .

Centerville ha[d] not met its burden of establishing

that it raised a colorable federal defense.” App. 9a.

The underlying state court proceedings and the

Third Circuit’s mandate are both stayed pending

resolution of this petition. No court has reached the

merits of Centerville’s § 233(a) immunity defense.

REASONS FOR GRANTING THE PETITION

This case, in the context of two officer removal

statutes, presents a fundamental “who decides”

question—that is, who determines whether a deemed

federal employee is immune under § 233(a) in any

given lawsuit: the Attorney General, unreviewably,

or, when that executive branch decision is contested,

the appropriate federal court.

In its answer to that fundamental question, the

decision below is in direct conflict with the Ninth

7

Circuit’s intervening decision in Blumberger v. Tilley,

115 F.4th 1113 (9th Cir. 2024), petitions for reh’g en

banc denied, No. 22-56032, Dkt. 83 (9th Cir. Dec. 19,

2024) and with the Second Circuit’s decision in Agyin

v. Razmzan, 986 F.3d 168 (2d Cir. 2021), and is at

odds with the authorities on which each relies,

including this Court’s longstanding precedent.

Certiorari is warranted to resolve the conflict,

preserve Article III adjudication of official immunity

defenses, and ensure that federal courts exercise their

“virtually unflagging obligation” to exercise their

jurisdiction. Colo. River Water Conservation Dist. v.

U.S., 424 U.S. 800, 817 (1976); see also Cohens v.

Virginia, 19 U.S. 264, 404 (1821) (Marshall, C.J.)

(“We have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which

is not given.”).

I.

The Third Circuit’s Construction of 42

U.S.C. § 233(l) Conflicts with a Decision of

the Ninth Circuit and Cannot be Squared

with this Court’s Precedents

Review is warranted to resolve a conflict

between the decision below and a subsequent decision

of the Ninth Circuit in construing the meaning and

jurisdictional import of 42 U.S.C. § 233(l). A month

after the Third Circuit issued the decision below, its

construction of § 233(l)—as permitting the Attorney

General to misreport a defendant’s deemed federal

status and thereby preclude jurisdiction and judicial

review—was outright rejected by the Ninth Circuit.

Blumberger, 68 F.4th at 1128–29. The Ninth Circuit’s

majority opinion, unlike the decision below, is in

8

accord with this Court’s decisions addressing judicial

review of executive action and removal jurisdiction to

assess a federal defense.

In Blumberger, the Ninth Circuit reversed a

district court’s conclusion—nearly identical to the one

affirmed below—“that the Attorney General’s . . .

notice to the state that [the defendant’s] deeming

status was ‘under consideration’ satisfied the advice

requirement of § 233(l)(1).” Id. at 1117, 1140. 2 There,

the Ninth Circuit construed § 233(l)(1) to obligate the

Attorney General to advise the state court of the HHS

Secretary’s “ex-ante” conferral of deemed federal

status within fifteen days of notice, and, on that

timely report, to mandate removal, regardless of the

Attorney General’s separate, “ex-post” coverage

decision. Id. at 1129 (Ҥ 233(l)(1) obligates the

Attorney General to report on the Secretary’s

deeming decision, not to report the Attorney General’s

ultimate coverage decision.”).

As the Ninth Circuit explained, the “key to

unlocking” the meaning of § 233(l) is in

understanding the distinction Congress drew

between the “different determinations made by

different department heads.” Id. at 1127–29. The

FSHCAA provides the Secretary, who has “expertise

in administering healthcare policies and services,”

2 The district court below (at App.13a–15a)—in concluding that

the Attorney General’s timely appearance alone precluded

removal under § 233(l)(1) and (2)—relied primarily on decisions

the Ninth Circuit either reversed (i.e., Blumberger v. California

Hosp. Med. Ctr., No. 22-cv-6066, 2022 WL 16698682 (C.D. Cal.

Nov. 2, 2022)), abrogated (i.e., Sherman v. Sinha, 843 F. App’x

870 (9th Cir. 2021)), or distinguished (i.e., Allen v. Christenberry,

327 F.3d 1290 (11th Cir. 2003)).

9

exclusive authority to designate health centers and

their personnel as federal employees for purposes of

§ 233(a) immunity. Id. at 1128. To carry out that

responsibility, the Secretary must “prescribe” an

“application,” § 233(g)(1)(D), to ensure, among other

things, that each health center “has implemented

appropriate policies and procedures to reduce the risk

of malpractice and the risk of lawsuits arising out of

any health or health related functions performed by

the entity.” § 233(h)(1). The Secretary’s approval of

that application—its deeming determination—

prospectively applies to a specified calendar year and

affords the health center applicant (and its personnel)

a federal-employee status that is “final and binding”

on the Attorney General in any subsequent litigation.

§ 233(g)(1)(F). In contrast, the Attorney General, with

expertise in representing the interests of the United

States and defending the public fisc, is tasked with

making a “litigation-specific” coverage decision and

defending individuals or entities covered by § 233(a).

§ 233(b), (c). Blumberger, 68 F.4th at 1128–29. 3

Given the Act’s clear “division of labor,” it

makes sense, as the Blumberger court observed, for

the Secretary’s deeming determination—the only

determination referenced in § 233(l)(1)—to confer

federal jurisdiction and obligate the Attorney General

to remove the action. Id. at 1128. As the Ninth Circuit

made pellucid—“it is an employee’s deemed status,”

As the Ninth Circuit noted, the existence of federal

jurisdiction—to adjudicate the immunity defense—neither

diminishes nor alters the government’s ability to represent its

interests. Id. at 1135, 1140 (noting Attorney General “is free to

contest” a deemed defendant’s claimed immunity in a “hearing”)

(citing § 233(c)).

3

10

determined by the Secretary under § 233(g) and (h),

“not covered status,” determined by the Attorney

General under § 233(c), “that triggers the removal

provisions of § 233(l)(1).” Id. at 1134 (emphasis

added). Thus, “[a]ny advice the Attorney General may

give to the state court about its ultimate coverage

decision has no legal consequence—one way or

another—under § 233(l)(1).” Id. The Attorney

General’s ex-post coverage determination, in other

words, can neither retroactively strip a health

center’s deemed federal status nor deprive the court

of its jurisdiction over the immunity defense.

Underscoring the circuit split, the Ninth

Circuit asserts pointblank: “Doe v. Centerville Clinics

Inc. . . . illustrates the dangers of eliding th[e] distinction”

between

deeming

and

coverage

determinations. Id. at 1128. The Third Circuit’s

“insulat[ion of] the Attorney General’s deeming

advice to the state court—and the ultimate decision

not to certify scope of employment—from judicial

review” is indeed dangerous. Id. at 1135. The decision

yields at least two foreseeable and highly disfavored

consequences. First, the deemed federal employee is

left with “no meaningful forum in which to challenge

the government’s failure to certify scope of

employment.” Id.; see also id. at 1138 (rejecting notion

“judicial review remains available to Dr. Tilley in

state court or an APA action”). Second, Article III

judges are reduced to “petty functionaries . . . required

to rubber-stamp the decision of a scarcely

disinterested executive officer, but stripped of

capacity to evaluate independently whether that

decision is correct.” De Martinez v. Lamagno, 515 U.S.

417, 426 (1995). Such a “strange course becomes all

11

the more surreal when [as here] one adds to the scene

the absence of an obligation on the part of the

Attorney General’s delegate to conduct a fair

proceeding, indeed, any proceeding.” Id. at 429

(rejecting outcome in which “courts could do no more,

and no less, than convert the executive’s scarcely

disinterested decision into a court judgment”).

The Third Circuit’s reading of § 233(l) is

irreconcilable with “‘the strong presumption that

Congress intends judicial review.’” Blumberger, 114

F.4th at 1137–38 (citing De Martinez, 515 U.S. at 424,

in turn citing precedent spanning from 1835 to

1986). 4 This Court has consistently stated that

judicial review of dispositive executive branch actions

“will not be cut off unless there is persuasive reason

to believe that such was the purpose of Congress.” De

Martinez, 515 U.S. at 424–25 (citation omitted). As

Blumberger notes, the PHS Act contains no “clear

statutory command” that “could alter fundamentally

the answer to the ‘who decides’ question.”

Blumberger, 115 F.4th at 1137 (citing De Martinez,

515 U.S. at 426). 5

4 The decision below, despite the parties’ extensive briefing on

the issue, ignores altogether this Court’s approach to judicial

review.

5 Significantly, § 233(l)—by mandating removal, a stay of

proceedings, and an Article III adjudication of the immunity

defense—comports with, if not codifies, much of this Court’s

longstanding immunity jurisprudence. See, e.g., Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (official immunity is “an

entitlement not to stand trial or face the other burdens of

litigation”); Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam) (hence, the Court has “repeatedly [] stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation”).

12

Finally, despite the Third Circuit’s purported

reliance on the Eleventh Circuit’s decision in Allen v.

Christenberry, 327 F.3d 1290 (11th Cir. 2003), the

decision below stands alone in its erroneous

interpretation of § 233(l). The decision cites Allen as

purportedly holding that § 233(l)(2) “does not permit”

removal where the “Attorney General did appear”

within the statutory period and advised the state

court “that no [coverage] decision had been made but

one was forthcoming.” App.7a, n.11 (citing and

quoting, with alteration, Allen, 327 F.3d at 1295). But

the Third Circuit’s alteration—i.e., its insertion of the

word “coverage” into the quoted language—

completely changes the meaning of the “decision” to

which Allen referred. The “decision” in Allen—which

“had not been made but . . . was forthcoming”—was

the ex-ante “HHS determination” under § 233(g) and

(h), not (as the Third Circuit would have it) the

Attorney General’s coverage determination under

§ 233(c). Compare id., with Allen, 327 F.3d at 1295;

see Blumberger, 115 F.4th at 1132–33. 6

6 As the Ninth Circuit noted, “Allen involved a unique set of

circumstances.” Blumberger, 115 F.4th at 1132. When Allen was

decided, more than twenty years ago, HHS “[did] not maintain

any database of individual providers” of deemed health centers,

so both deeming and coverage determinations were made after,

and only in response to, a lawsuit. El Rio Santa Cruz

Neighborhood Health Ctr. v. U.S. Dep’t of Health & Hum. Servs.,

396 F.3d 1265, 1273 (D.C. Cir. 2005) (finding Secretary was

violating 42 U.S.C. § 233(g)(1)(A)—(E) requirements by not

making “advance” deeming determinations); see Blumberger,

115 F.4th at 1139 n.10 (noting El Rio “says nothing about the

availability of the APA to challenge the Attorney General’s

failure to certify scope of employment once litigation . . . has

begun”).

13

Properly read, Allen is discordant with the

Third Circuit’s decision and in harmony with

Blumberger. The Allen court expressly recognized

that “Congress left the determination of the

defendants’ employment status to the Secretary of

HHS and predicated removal upon either an

affirmative deeming by the Secretary or the Attorney

General’s failure to appear and advise the court

within a prescribed period of time.” Allen, 327 F.3d at

1296 (emphasis added). Allen further acknowledges

that if the Attorney General’s notice to the state court

had confirmed the Secretary’s positive, ex-ante

deeming determination as to the relevant period—as

the Attorney General’s notice did here (App. 48a,

¶ 3)—such advice would have required removal under

§ 233(l)(1). Id. at 1294 (“If [the Attorney General]

advises the court that HHS has determined that the

employee is deemed an employee of PHS . . . the

Attorney General must remove the case to federal

court”); accord Celestine v. Mount Vernon

Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.

2005) (Ҥ 233(l)(1) itself says that compliance with its

terms also serves to ‘satisfy the provisions of

subsection (c).’”).

At bottom, the Ninth Circuit fully embraced

the very argument rejected below: “‘because

[Centerville] was a ‘deemed’ PHS employee under

§ 233 when the events giving rise to this action

occurred, it ha[d] the right to remove and removal

under § 233(l)(1) should be automatic upon the

Attorney General’s appearance.” Blumberger, 115

F.4th at 1128–29 (quoting decision below at App. 5a).

This Court should grant review to resolve the conflict,

correct the Third Circuit’s departure from the

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accepted role of Article III courts in reviewing

executive branch action, and ensure uniformity in the

application of statutory procedures designed to

safeguard deemed PHS defendants.

II.

The Third Circuit’s Interpretation of 28

U.S.C. § 1442(a)(1) Misapplies this Court’s

Precedents and Conflicts with Decisions

of the Second and Ninth Circuits

Review of the Third Circuit’s decision is

warranted for a second and independent reason. The

decision flouts this Court’s precedents construing the

federal officer removal statute, 28 U.S.C. § 1442(a)(1),

and creates a direct conflict with the Second Circuit’s

decision in Agyin v. Razmzan, 986 F.3d 168 (2d Cir.

2021), and the Ninth Circuit’s decision in Blumberger,

as to whether a deemed PHS employee’s claimed

§ 233(a) immunity is a colorable federal defense.

In holding that an HHS-designated PHS

employee fails to raise a colorable federal defense

absent the Attorney General’s certification, App. 9a,

the decision below impermissibly obligates deemed

federal employees to “virtually” “‘win [their] case

before [they] can have it removed.’” Jefferson Cnty.,

Ala. v. Acker, 527 U.S. 423, 431 (1999) (quoting

Willingham v. Morgan, 395 U.S. 402, 407 (1969)). In

the context of § 233(a) immunity, the Attorney

General’s litigation-specific certification “transforms

an action against an individual federal employee into

one against the United States.” Hui, 559 U.S. at 810.

Once secured, certification presumptively validates

the federal defense, virtually securing the “win” a

deemed PHS employee seeks. Cf. Osborn v. Haley, 549

15

U.S. 225, 252 (2007) (“Upon certification, the action is

‘deemed to be . . . brought against the United States,’

unless and until the district court determines that the

federal officer . . . was acting outside the scope of his

employment.”) (construing 28 U.S.C. § 2679(d)(1)–

(3)). But the Third Circuit ignores a fundamental

principle of officer removals: the ultimate validity of

the federal defense “is a distinct subject . . . .

involv[ing] wholly different inquiries. . . . [with] no

connection whatever with the question of

jurisdiction.” Mesa v. California, 489 U.S. 121, 129

(1989) (quoting Mayor & Aldermen of City of

Nashville v. Cooper, 73 U.S. 247, 254 (1867)).

Even at the merits stage, as this Court

observed more than a decade ago, “there is no reason

to think that scope certification by the Attorney

General is a prerequisite to immunity under § 233(a).”

Hui, 559 U.S. at 811. Where the Attorney General’s

certification is unnecessary to secure official

immunity, his failure or refusal to certify cannot, as

the Third Circuit concluded, strip an asserted

immunity defense of its federal color for jurisdictional

purposes.

To be sufficiently “colorable” to confer Article

III jurisdiction, a federal defense need simply be

“plausible [and] reasonably [] asserted, given the facts

presented and the current law.” Colorable Claim,

Black’s Law Dictionary (12th ed. 2024). The “raising

of a federal question in the officer’s removal petition .

. . constitutes the federal law under which the action

. . . arises for Art. III purposes.” Mesa, 489 U.S. at 136.

HHS’s “final and binding” determination conferring

federal employee status, which neither the

16

Secretary nor the Attorney General can

retroactively revoke, § 233(g)(1)(F), is more than

sufficient to meet that test. Cf. Tennessee v. Davis,

100 U.S. 257, 262 (1879) (permitting federal officer

removal as long as “a Federal question or a claim to a

Federal right is raised in the case, and must be

decided therein”); Mayor & Aldermen, 73 U.S. at 252

(concluding removal jurisdiction exists so long as

“there [is] a single . . . ingredient” “of a Federal

character”).

By conflating the Secretary’s ex-ante deeming

determination and the Attorney General’s ex-post

coverage decision, the Third Circuit impermissibly

merges the necessary jurisdictional and merits

inquiries, yielding the sort of “narrow, grudging

interpretation” of § 1442(a)(1) this Court has long and

steadfastly rejected. Willingham, 395 U.S. at 407;

accord Arizona v. Manypenny, 451 U.S. 232, 242

(1981); Acker, 527 U.S. at 431. The decision is

incongruous with the Court’s rule—which “scarcely

need be said”—that the federal officer removal statute

is “liberally construed” to protect federal interests.

See Colorado v. Symes, 286 U.S. 510, 517 (1932);

accord Watson v. Philip Morris Cos., 551 U.S. 142, 147

(2007). The decision below likewise cannot be squared

with the Court’s repeated recognition that a removing

defendant’s assertion of federal immunity fulfills the

statute’s colorable defense requirement. Indeed,

trying “the validity of the defense of official immunity

. . . in a federal court” is “one of the most important

reasons for removal.” Willingham, 395 U.S. at 407

(rejecting “anomalous result of allowing removal only

when the officers had a clearly sustainable defense”).

17

The “test for removal,” in other words, “should

be broader, not narrower, than the test for official

immunity.” Id. at 405. Acker illustrates the point:

there, the Court concluded the defendant’s intergovernmental tax immunity defense was colorable for

removal purposes, then rejected it on its merits. Acker,

527 U.S. at 431. Concurring in the result, Justice

Scalia reiterated that the provision of “a federal forum

in which to litigate the merits of the immunity

defenses” is “the main point” of § 1442(a)(1). Id. at 447

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

The Third Circuit’s narrow construction of

§ 1442(a)(1) not only defies this Court’s longstanding

precedent, but also creates a direct conflict with the

Second Circuit’s 2021 application of the statute to a

deemed PHS employee’s removal where, as here, the

defendant claimed § 233(a) immunity as a federal

defense. See Agyin, 986 F.3d at 174. Faithful to this

Court’s instruction that federal officer removals

“must be liberally construed,” and that courts must

“credit [the d]efendants’ theory of the case” in

assessing jurisdiction, the Agyin court held that a

deemed PHS defendant raises a colorable federal

defense in asserting § 233(a) immunity and otherwise

meets criteria to remove under § 1442(a)(1) as a

person acting under federal officers. Id. at 174–75

(citing Acker, 527 U.S. at 432); see id. at 185, 187

(endorsing deemed PHS defendant’s immunity

defense on the merits by ordering United States’s

substitution over its steadfast opposition).

The Blumberger court—likewise tasked with

assessing whether a deemed PHS defendant’s

assertion of § 233(a) immunity was sufficient to

18

satisfy § 1442(a)(1)’s colorable federal defense

requirement—reiterated its alignment with the

Second Circuit on the issue. See Blumberger, 115

F.4th at 1123. There, in direct conflict with the

decision below, the Ninth Circuit concluded that

“HHS’s [deeming] notice provides unequivocally clear

and certain support for [the deemed physician]’s

contention that he was acting ‘pursuant to a federal

officer’s directions’ when treating [the plaintiff] and

that there is a ‘colorable federal defense’ pertaining to

the medical malpractice claims.” Id. (emphasis

added); see also Friedenberg, 68 F.4th at 1124.

III.

The Third Circuit’s Decision Must be

Corrected

This Court should grant review to resolve the

conflict between the courts of appeals and to reject the

Third Circuit’s purpose-defeating construction of two

officer removal statutes. The questions presented are

important and recurring, calling for prompt

resolution and a uniform national rule.

The interpretation of the relevant removal

statutes implicates the United States’s pecuniary

interest and impacts more than 1,300 federallyfunded, safety-net health care providers that

collectively serve more than 30 million individuals

annually. See Akash Pillai et al., 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-in-community-healthcenter-patientsservices-and-financing/. The United States itself

recognizes that the jurisdictional issues are of

19

“exceptional importance,” having asserted as much in

petitioning the Ninth Circuit to rehear Blumberger en

banc. See United States’s Pet. for Reh’g En Banc,

Blumberger v. Tilley, No. 22-56032, Dkt. No. 82 (9th

Cir., filed Nov. 25, 2024) (requesting Ninth Circuit

conform its construction of § 233(l) to that of the

decision below).

Although unpublished, the lower court’s

decision will no doubt “have a lingering effect in the

Circuit” and beyond. Smith v. United States, 502 U.S.

1017, 1020 (1991) (Blackmun, J., dissenting from

denial of certiorari); cf. C.I.R. v. McCoy, 484 U.S. 3, 7

(1987) (“[T]hat the Court of Appeals[] order under

challenge here is unpublished carries no weight in

[this Court’s] decision to review the case.”). That effect

is to undo the purpose of both § 233(l) and

§ 1442(a)(1): to ensure prompt access to a federal

forum to assess claimed immunity. By treating the

Attorney General’s coverage decision as the

jurisdictional linchpin for both statutes, the Third

Circuit transforms procedural safeguards into

mechanisms by which the executive branch may

preclude federal jurisdiction and prevent judicial

review of its own “scarcely disinterested” decisions.

De Martinez, 515 U.S. at 432. Litigants, including the

United States, have already urged district and

appeals courts in the second, fourth, and ninth

circuits to adopt the Third Circuit’s rule. 7

See, e.g., United States’s Pet. for Reh’g En Banc at 10–11,

Blumberger v. Tilley, No. 22-56032 (9th Cir. Nov. 25, 2024), ECF

No. 82 (citing decision below); U.S.’s Reply in Support of Mot. to

Remand at 5, L.J.C. v. Dignity Health, No. 24-4731 (C.D. Cal.

Aug. 9, 2024), ECF No. 24, 2024 WL 4143762 (same); see also,

7

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No purpose is served by allowing the questions

presented to further percolate in the lower courts. As

to the first, Blumberger “implement[s] Congress’s

choices rather than remake[s] them,” Health and

Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166,

178 (2023), in keeping with § 233(l)’s language and

purpose and this Court’s longstanding approach to

judicial review. On the second question, the Agyin

court’s application of § 1442(a)(1) to deemed health

centers and their personnel, and its conclusion that

§ 233(a) immunity is a colorable federal defense, is

consistent with this Court’s longstanding federal

officer removal jurisprudence. Geographic divergence

and inconsistency in access to a federal forum—and

thus to official immunity—in a nationwide, federallyfunded program is untenable. Hui, 559 U.S. at 805

(resolving two-circuit conflict on scope of § 233(a)

e.g., Br. of Defendants-Appellees and Defendant-CrossClaimant-Appellee at 10 n.3, Kelley v. Richford Health Ctr., No.

23-344 (2d Cir. Sept. 25, 2023), ECF No. 90, 2023 WL 6388135

(citing district court decision); U.S.’s Reply Br. in Support of Mot.

to Remand at 2, Gerson v. Petaluma Health Ctr., Inc., No. 233870 (N.D. Cal. Sept. 30, 2023), ECF No. 23, 2023 WL 10448616

(same); U.S.’s Mot. to Remand at 12, L.J.C. v. Dignity Health,

No. 24-4731 (C.D. Cal. June 21, 2024), ECF No. 13, 2024 WL

4143764 (same); U.S.’s Mot. to Remand at 8, Bradford v. Asian

Health Services, No. 24-1060 (N.D. Cal. Mar. 22, 2024), ECF No.

17, 2024 WL 1828851 (same); U.S.’s Mot. to Remand at 7,

Margolies v. Lifelong Med. Care, No. 24-340 (N.D. Cal. Feb. 22,

2024), ECF No. 16, 2024 WL 1960835 (citing district court

decision); U.S.’s Mot. to Remand at 7, Scott v. Lifelong Med.

Care, No. 24-341 (N.D. Cal. Feb. 22, 2024), ECF No. 12, 2024 WL

2880242 (same); Mem. of Law in Support of Plaintiff’s Mot. to

Remand at 8, Doe v. Three Lower Cnties. Cmy. Servs., Inc., No.

23-2811 (D. Md. Nov. 17, 2023), ECF No. 20-1, 2023 WL 9839926

(same).

21

immunity). The current circuit conflict has subjected,

and will subject, health centers engaged in identical,

federally-approved activity to vastly different

outcomes in vindicating their statutory rights, based

purely on location.

Finally, the question presented is recurring,

and delay in correcting the Third Circuit’s error and

definitively resolving the issue will irreparably harm

health centers and their patients. Permitting further

litigation in the lower courts over threshold

jurisdictional questions erodes absolute immunity,

which, more than a “mere defense to liability” is a

right not to be a party to litigation, “effectively lost if

a case is erroneously permitted to go to trial.” See

Mitchell, 472 U.S. at 526. Curtailing official

immunity, in turn, diverts resources, time, and

attention away from scores of vulnerable health

center patients. The Third Circuit’s rule frustrates

the overarching purpose of § 233(a) immunity: the

efficient and effective advancement of public health.

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 Third Circuit’s decision forces health

centers to do precisely what Congress sought to

prevent: spend their scarce resources on costly private

liability insurance. See H.R. Rep. No. 104-398 at 5–7.

22

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

Centerville Clinics Inc.

JANUARY 2025

23