Opinion
3:21-cv-00878-AC
01-24-2022
MICHAEL JAMES HARNED, individually; and as Personal Representative of the Estate of HANNAH C AMELIA YARBOUR-HARNED; and as legal guardian of SHAY ANGELINA YARBOUR, a minor child, Plaintiffs, v. GREGORY GUFFANTI, M.D.; and MERCK & CO., a foreign corporation, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
Introduction
Before this court is the motion to remand ("Motion") filed by plaintiff Michael James Harned, on behalf of Hannah Camelia Yarbour-Harned and as guardian of Shay Angelina Yarbour, ("Harned") seeking remand from federal court to state court pursuant to 28 U.S.C. § 1447(c). Harned argues that removal was improper because, contrary to what is alleged in the notice of removal, defendant Gregory Guffanti, M.D. ("Guffanti") is not protected under the Federal Tort Claims Act ("FTC A"), thus this court has no jurisdiction over the matter. For the reasons set forth below, the Motion should be denied.
Procedural Background
On March 11, 2021, Harned filed a wrongful death action in Clackamas County Circuit Court alleging medical malpractice against Guffanti. On March 15, 2021, Harned filed his First Amended Complaint adding products liability claims against defendant Merck & Co., Inc. ("Merck"). In the First Amended Complaint, Harned alleges that Guffanti negligently prescribed medication manufactured by Merck to his wife, Hannah Yarbour-Harned, which caused her death.
On June 10, 2021, the United States, together with Guffanti and Merck, removed this case to federal court pursuant to 42 U.S.C. § 233(c), arguing that the Federally Supported Health Centers Assistance Act ("FSHCAA") and the FTCA provide the exclusive remedy for Plaintiffs in this case. The United States further urges this court to substitute it for Guffanti as defendant because Guffanti is immune from the suit.
On June 26, 2021, Harned filed this Motion seeking to remand the suit, primarily arguing that the FTCA and FSHCAA do not extend immunity from suit to Guffanti or his employer, thereby making removal improper.
Legal Standard
A 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). Upon removal, "the defendant always has the burden of establishing that removal is proper." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). A plaintiff who believes an action has been improperly removed to federal court may file a motion to remand pursuant to 28 U.S.C. § 1447(c), which provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." "The removal statute is strictly construed, and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas, 553 F.3d at 1244.
As a general principle, the United States "may not be sued without its consent", United States v. Mitchell, 463 U.S. 206, 212 (1983); however, the FTCA provides consent to be sued for certain types of actions. Specifically, the FTCA provides that the United States may be sued "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 42 U.S.C. §1346(b). The FTCA presents 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).
In 1992, Congress enacted the FSHCAA, 42 U.S.C. §233, which extends immunity under the FTCA to certain entities and their employees who are "deemed" to be U.S. Public Health Service ("PHS") officers. Section 233(c) provides that "upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed ... to the district court of the United States of the district and division embracing the place wherein it is pending, and the proceeding deemed a tort action brought against the United States[.]" 42 U.S.C. §233(c). At the notice of removal stage, the defendant may allege simply that the jurisdictional threshold has been met. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89(2014).
The United States removed this case pursuant to the FSHCAA. Under its provisions, challenges to removal brought by a plaintiff are resolved on a motion to remand where both parties submit evidence relevant to whether federal jurisdiction exists. 42 U.S.C. § 233(c). Where jurisdiction is disputed, the court determines by a preponderance of the evidence whether federal jurisdiction exists. Dart, 574 U.S. at 89. Similarly, the FSHCAA provides that if the district court finds the removed case is one in which a remedy against the United States, as provided by 28 U.S.C. §§ 1346(b) and 2672, is not available, then the case shall be remanded to the state court of original filing. 42 U.S.C. § 233(c). Under regulations promulgated pursuant to § 233, immunity and substitution of the United States as defendant are appropriate only where: (1) the health service defendant is a deemed employee of PHS, 42 C.F.R. § 6.6(a); (2) the "claims . . . result[ed] from the performance of a medical, surgical, dental, or related functions," 42 C.F.R. § 6.6(b); and (3) for individuals, the alleged "acts and omissions [occurred] within the scope of their employment." 42 C.F.R. § 6.6(c).
Discussion
I. Basis for Removal
In passing the FSHCAA, Congress established a framework for providing federal grants to community health centers in underserved areas. Under the new law, the United States allowed for 'deemed public health centers' to bypass the increasing costs of private malpractice insurance. See e.g. Cctstaneda v. United States, 546 F.3d 682, 684 (9th Cir. 2008) (discussing that prior to the FSHCAA, many states, reacting to a wave of medical tort litigation and rapidly increasing medical malpractice insurance costs, enacted legislative changes aimed at indemnifying community medical providers and deterring frivolous lawsuits). Under the FSHCAA, the FTCA provides the exclusive remedy for medical malpractice by a health care provider who falls within the definition of 42 U.S.C. §233(g;. Hui v. Castaneda, 559 U.S. 799, 801 (2010); D.L. v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). The statute also requires substitution of the United States as defendant when federal employees are sued for damages for harms caused in the course of their employment. Id. When a plaintiff alleges medical malpractice against a PHS entity or employee, removal to federal court is proper where the Attorney General certifies that the defendant was acting within the scope of his employment at the time of the events giving rise to the claim. 42 U.S.C. § 233(c).
In filing for removal, the United States presented evidence that Guffanti was an employee of NHC at all times relevant to this dispute. (Decl. Meredith Torres Ex. 1, Notice of Removal, ECF No. 1 -1). It also presented evidence that NHC was a deemed-PHS entity at all times relevant to this dispute and that Guffanti was acting within the scope of his employment when he prescribed medicine to the decedent. (Certification pursuant to 42 U.S.C. §233(c), Notice of Removal, ECF No. 1-2). Whether removal was proper under 42 U.S.C. § 233 turns on the veracity of these claims.
II. Subject Matter Jurisdiction
A. Deeming Determination
Harned argues that the deeming of NHC as a PHS is self-serving, occasioned only by the filing of this action in 2021, and should not be recognized. The United States responds that the deeming of NHC as a PHS has been repeatedly sought and received every year since at least 2017 and supports this claim with evidence. It also argues that the deeming determination for the period relevant to this dispute (2017-2018) was obtained prior to any of the events giving rise to this lawsuit.
The record supports the United States' position. There is sufficient evidence that NHC is and was a PHS-deemed entity before and during all events relevant to this dispute. There is no evidence of a causal relationship between Guffanti's alleged negligence and the deeming determination. Further, to the extent that NHC receives benefit by being deemed a PHS, such benefit is a deliberate act of Congress via the FSHCAA. Congress passed the FSHCAA to ease the financial burdens of malpractice insurance for health clinics, such as NHC, who provide lower cost medical services to medically underserved communities. H.R. Rep. No. 104-398 at 5-8 (1995). Harned has offered no evidence to show that NHC sought PHS status in response to Harned's complaint filed in 2021. The evidence in the record instead shows that the NHC has been repeatedly deemed a PHS every year since at least 2017 and fails to show any plausible causal link between the deeming determination and the filing of this action. (Decl. Meredith Torres Ex. 1, Notice of Removal, ECF No. 1-1). Deeming determinations are considered final and binding on all parties to any subsequent civil proceeding. 42 U.S.C. § 233(g)(1)(F). Even if a causal link were established, it is not clear whether this would be a relevant consideration for this Motion.
B. Guffanti 's Employee Status
Harned next argues that he lacks information of Guffanti's employment status as it relates to NHC. He argues that Guffanti might have been a contractor or volunteer and that discovery is needed to make this determination. In response, the United States submitted additional evidence in the form of Guffanti's employment records, W-2 Wage and Tax records, Guffanti's signed employment agreement, and numerous sworn declarations confirming his employment status. (Decl. Sarah Feldman Ex. 1-6, ECF No. 19).
Here again, the record supports the United States' position. Where, as here, the defendant successfully carries their burden to establish federal jurisdiction on removal, the plaintiff must create doubt as to the existence of such jurisdiction because "the defendant always has the burden of establishing that removal is proper" and "any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas, 553 F.3d at 1244. Without any evidence to the contrary, the court finds that defendant has carried its burden of showing that Guffanti is, and was at all times relevant to this dispute, an employee of a PHS-deemed employer for removal purposes. Moreover, Harned's actual knowledge is irrelevant to the question of employment status for the purpose of applying the FSHCAA and FTCA. Stated differently, the relevant inquiry is whether Guffanti was an employee of NHC, not whether Harned had actual knowledge that Guffanti was an employee.
C. Guffanti's Scope of Employment
Harned next argues that Guffanti's alleged medical negligence was not within the scope of his employment. According to Harned, the certification by the U.S. Attorney's Chief of Civil Division that Guffanti was acting within the scope of his employment is "devoid of credibility and amounts to a conclusory statement by a government administrator and not a medical expert". (PL's Motion, at 4). He suggests that a doctor who negligently prescribes medication cannot possibly be acting within the scope of their employment. Id. In response, the United States points to the language of 42 U.S.C. § 233(c), which expressly charges the Attorney General with this determination, and it argues that the scope-of-employment certification that was filed with its notice of removal is prima facie evidence that the employee was acting within his employment and is "conclusive until challenged." Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curium).
The United States is correct. Section 233(c) provides that "[u]pon certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident. . . [the action] shall be removed [and] deemed a tort action brought against the United States." If the scope of employment decision is challenged, "the party seeking review bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Green, 8 F.3d at 698. To overcome a certification, a plaintiff must allege sufficient facts that, taken as true, establish that the defendant's actions exceeded the scope of his employment. Saleh v. Bush, 848 F.3d 880, 889 (9th Cir. 2017).
Here, Harned does not allege any facts to rebut the Chiefs certification. The parties agree Guffanti prescribed medication, and the Chief determined that writing prescriptions falls within his scope of employment. (Notice of Removal, ECF No. 1-2). "Where a plaintiff fails to allege sufficient facts to rebut the certification, the United States must be substituted as the defendant." Id. Harned's arguments also fail to recognize the statutory requirement that the Attorney general, or an agent thereof, make this certification decision. 42 U.S.C. § 233 (c). The statute explicitly charges the Attorney General with determining whether the defendant was acting within the scope of their employment at the relevant time. Because Harned provides no contradictory evidence or set of facts, the court finds the scope of employment certification by the U.S. Attorney's Chief to be conclusive for purposes of this Motion. Saleh, 848 F.3d at 889.
Accordingly, the court finds that the United States has carried its burden of showing removal is proper under 42 U.S.C. §233, and that Guffanti is, and has been, an employee of a PHS-deemed entity, and was acting within the scope of his employment during his alleged negligent acts.
III. Availability of a Bivens Action
Harned argues that he should be permitted to pursue his claims pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971). In Bivens, the court allowed a private action for damages where a federal officer acting under the color of federal authority had allegedly violated the plaintiffs constitutional rights. Id. at 397. The Court in Bivens was willing to provide for such action in part because no direct action against the government was available to Bivens. Id. at 410 (Harlan, J., concurring). Here, the opposite is true. 42 U.S.C. §233 provides Harned a direct and exclusive right of action for damages against the United States. As the Supreme Court has observed, "the immunity provided by §233(a) precludes Bivens actions against individual PHS officers or employees for harms arising out of conduct described in that section." Hid v. Castaneda, 559 U.S. 799, 812 (2010). As In Hui, the applicability of Bivens to this matter "begins and ends with the text of §233(a)". Id. at 805.
IV. Remaining Arguments
Harned raises several additional arguments that fall outside the scope of this jurisdictional inquiry. The court declines to address them here as they are more relevant to the pending motion to dismiss, which will be determined in a separate ruling.
Conclusion
Based on the foregoing, the United States has met its burden to establish that removal to this court was proper. Accordingly, the action is properly before this court, and Harned's motion to remand (ECF No. 12) should be DENIED.
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.