United States District Court, C.D. California
ORDER GRANTING PLAINTIFFS' AMENDED MOTION TO
REMAND AND UNITED STATES OF AMERICA'S MOTION TO
L. REAL, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Amended Motion to Remand, filed
on November 21, 2017, and Movant United States of
America's Motion to Remand, filed on November 29, 2017.
(Dkt. Nos. 20, 24). Having been fully briefed by the parties,
this Court took the matters under submission on November 30,
February 1, 2016, Plaintiffs filed suit in the Los Angeles
Superior Court alleging that they sustained injuries during
labor and delivery due to Defendants' malpractice.
Defendants sought coverage from the United States under the
Federal Tort Claims Act (“FTCA”). On November 22,
2016, the United States Attorney for the Central District of
California filed a notice in the Superior Court informing the
court that Defendants were not entitled to coverage.
Defendants filed a separate lawsuit challenging denial of
coverage, which has not yet been resolved (“Parallel
Proceeding”). On October 30, 2017, Defendants removed
this case under the Federally Supported Health Centers
Assistance Act (“FSHCAA”). Trial was scheduled to
begin in the Los Angeles Superior Court on January 9, 2018.
Defendants seek an order from this Court substituting the
United States in their place and compelling the United States
to waive its sovereign immunity under the FTCA. Plaintiffs
and the United States move to remand for lack of subject
matter jurisdiction and untimely removal.
defendant may remove a civil action from state court if the
action could have originally been filed in federal court. 28
U.S.C. § 1441(a). “The removal statute is strictly
construed, and any doubt about the right of removal requires
resolution in favor of remand.” Moore-Thomas v.
Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
2009). “[T]he defendant always has the burden of
establishing that removal is proper.” Id.
United States “is immune from suit save as it consents
to be sued…and the terms of its consent to be sued in
any court define the Court's jurisdiction to entertain
the suit.” Lehman v. Nakshian, 453 U.S. 156,
160 (1981). The FTCA represents a limited waiver of federal
sovereign immunity and allows the United States to be held
liable for the torts of its employees. See United States
v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992). Under
the FSCHAA, FTCA coverage may be granted to certain federally
qualified health centers and their employees. 42 U.S.C.
§ 233(a). If covered by the FTCA, the qualified health
center is immune from suit and the United States will remove
the state court action and substitute itself as the
defendant. 42 U.S.C. § 233(a), (c). Whether FTCA
coverage applies “depend[s] upon the determination or
certification (as appropriate) by the Attorney General that
the individual or entity is covered by [the FSHCAA] and was
acting within the scope of employment, in accordance with
normal Department of Justice procedures.” Final Rule,
FSCHCAA, 60 Fed. Reg. 22, 530, 22, 531 (May 8, 1995).
defendants can remove a suit under the FSHCAA in two ways.
First, the Attorney General or his designee may at “any
time before trial” certify that the defendants are
entitled to FTCA coverage or appear within 15 days of
notification of the filing of the case in state court and
advise the court whether the Secretary has determined that
the defendants are entitled to coverage. 42 U.S.C. §
233(c), (l)(1). Second, if the Attorney
General or his designee “fails to appear in State court
within [this 15-day] time period, ” the defendants may
remove the case for “a hearing, and…a
determination, as to the appropriate forum or procedure for
the assertion of the claim for damages.” 42 U.S.C.
neither provision provides a basis for removal. Section
233(l)(1) does not provide a basis for removal
because the Attorney General's designee, the United
States Attorney for the Central District of California, filed
a notice in state court informing the court that Defendants
were not entitled to FTCA coverage. Section
233(l)(2) does not provide a basis for removal
because the Attorney General's designee did not
“fail to appear in State court.”
argue that section 233(l) allows removal for the
purpose of challenging the negative coverage decision.
Defendants cite no authority for this argument. See
Moore-Thomas, 553 F.3d at 1244 (“[T]he defendant
always has the burden of establishing that removal is
proper.”). Moreover, section 233 removal allows the
district court only to conduct a hearing to determine
“the appropriate forum or procedure for assertion of
the claim.” 42 U.S.C. § 233(l)(2). Review
of a negative coverage decision plainly exceeds this scope.
Even “the legislative history indicates [that a section
233(l)(2) hearing] was intended to protect a covered
defendant against a default judgment due to the Attorney
General's untimeliness, rather than a negative coverage
determination.” El Rio Santa Cruz Neighborhood
Health Center, Inc. v. U.S. Dep't of Health and Human
Servs., 396 F.3d 1265, 1272 (D.C. Cir. 2005). Defendants
cannot remove under section 233 to challenge the negative
argue that under section 233(l)(1), the Attorney
General can appear in state court only when certifying FTCA
coverage. The statute reads that the Attorney General may
appear “and advise such court as to whether
the Secretary has determined” that the defendants are
entitled to coverage. 42 U.S.C. § 233 (l)(1)
(emphasis added). “Whether” means the United
States may or may not choose to certify Defendants.
The Attorney General can appear to inform the state court
that coverage has been denied. Defendants' argument
next argue that the Attorney General's state court notice
was not an “appearance” but a “notice of
nonappearance.” This Court disagrees. The notice reads
that Defendants “are not deemed to be employees of the
Public Health Services for purposes of 42 U.S.C. § 233
with respect to the actions or omissions that are the subject
of this proceeding” and, as a result, the United States
would not “participate in this proceeding or remov[e]
this case to federal court.” This notice informed the
state court that Defendants were not entitled to coverage.
The very filing of this notice constitutes an appearance.
See Allen v. Christenberry, 327 F.3d 1290, 1295
(11th Cir. 2003) (“The Attorney General did appear
through the United States Attorney… [by filing a
notice stating] that no decision had been made but one was
section 233(c) arguments are inapposite as that provision
applies only when the United States issues an affirmative
coverage decision and the Attorney General has removed the
case. 42 U.S.C. § 233(c); Allen, 327 F.3d at
do not raise any basis for removal apart from section 233.
Therefore, remand is appropriate.
IS HEREBY ORDERED that Plaintiffs' Amended
Motion to Remand and the United States of America's