NOT FOR PUBLICATION FILED SEP 4 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
A. H., a minor by and through her Guardian No. 22-56061 Ad Litem Sandra Guzman; SANDRA GUZMAN, individually, D.C. No. 2:22-cv-07148-DSF-PVC Plaintiffs-Appellees,
v. MEMORANDUM*
AHMAD KHALIFA, M.D.; BORZOUYEH POURSHARIF, M.D.; EISNER PEDIATRIC & FAMILY MEDICAL CENTER, DBA Eisners Health Los Angeles Womens Center,
Defendants-Appellants,
FARNAAZ KIA, M.D.; DIGNITY HEALTH, Erroneously sued as California Hospital Medical Center,
Defendants-Appellees,
and
DOES, 1 to 100,
Defendant,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.
UNITED STATES OF AMERICA,
Movant-Appellee.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 14, 2023 Pasadena, California
Before: PARKER,** BYBEE, and DESAI, Circuit Judges. Partial Dissent by Judge DESAI.
In this appeal, we must determine whether Defendants-Appellants Dr. Ahmad
Khalifa, Dr. Borzouyeh Poursharif, and Eisner Pediatric and Family Medical
Services (“Eisner”) properly removed Plaintiffs-Appellees A.H. and Sandra
Guzman’s medical malpractice suit to federal court. This inquiry requires us to
determine how two removal statutes—28 U.S.C. § 1442 and 42 U.S.C. § 233—
interact. Our concurrently-filed opinion in Blumberger v. Tilley, No. 22-56032 (9th
Cir. Sept. 3, 2024), considers a case presenting nearly identical facts, so both the
reasoning and outcome of that decision guide ours here. We assume familiarity with
** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 2 both the facts and the statutory background of this case. Consistent with
Blumberger, we vacate the district court’s order remanding the case to state court,
and we remand for further proceedings consistent with § 233.
1. First, we conclude that the district court’s analysis of the timeliness of Drs.
Khalifa and Poursharif’s § 1442 removal proceeded under the wrong legal standard,
and we remand on that basis. For the reasons we explain in the concurrently-filed
opinion, the district court’s analysis of federal-officer removal should have
proceeded under § 1446(b)(3) rather than § 1446(b)(1). Blumberger, slip op. at 13–
19. In particular, Plaintiffs-Appellees have not pointed to any facts in the record that
would suggest that the doctors were aware of Eisner’s deemed status before the
complaint was filed, and the complaint itself contains no information that would
have put the doctors on notice of their deemed status. In fact, Plaintiffs-Appellees’
complaint alleged that Drs. Khalifa and Poursharif performed labor and delivery
services at California Hospital Medical Center, which, unlike Eisner, was not
“deemed” an employee of the PHS. On these bare facts, it was not apparent from
the face of the complaint that the doctors could have removed the case to federal
court.1 See Blumberger, slip op. at 15–16; 28 U.S.C. § 1446(b)(1). We remand to
1 That Eisner itself was also sued does not change the analysis with respect to the doctor defendants. The removal clock is personal to each defendant. See Destfino 3 the district court to determine when the doctors’ 30 days under § 1446(b)(3) began
to run based on receipt of the deeming notice, consistent with our decision in
Blumberger and our precedents on 1446(b)(3). Blumberger, slip op. at 19.
Conversely, Eisner’s § 1442 removal was untimely. As a federally-funded
medical center, Eisner had been party to the deeming process with HHS, so it was
on notice from the filing of the complaint that it could have asserted federal officer
removal under § 1442 based on its relationship with HHS. See 28 U.S.C.
§ 1446(b)(1).
2. Even if, assuming arguendo, Defendants-Appellees’ § 1442 removal was
untimely under § 1446(b)(3), we nevertheless may review the remainder of the
district court’s order because the case was removed “pursuant to section 1442.”
Blumberger, slip op. at 22; 28 U.S.C. § 1447(d).
3. We reverse the district court’s conclusion that the Attorney General’s
October 4, 2021, notice to the state court that Drs. Khalifa and Poursharif’s deeming
statuses were “under consideration” satisfied the advice requirement of § 233(l)(1).
“[S]ubsection (l)(1) requires the Attorney General to provide positive advice to the
v. Reiswig, 630 F.3d 952, 955 (9th Cir. 2011) (“[E]ach defendant has thirty days to remove after being brought into the case.”). Whether Eisner knew of its own deemed status has little bearing on whether the doctors’ 30 days began to run when the complaint was filed. 4 state court when the employee was deemed for the time period at issue and the
lawsuit arises out of a class or category of medical conduct for which the employee
was deemed.” Blumberger, slip op. at 27. Eisner Pediatric and Family Medical
Services and its employees—including Drs. Khalifa and Poursharif—were deemed
employees of the PHS by HHS for the 2020 calendar year, which covered Eisner’s
employees “for damage for personal injury, including death, resulting from the
performance of medical, surgical, dental, or related functions.” Plaintiffs-Appellees’
complaint states that their causes of action arose out of conduct that was medical or
surgical in nature during 2020. At its October 4, 2021, appearance, the Attorney
General needed only to confirm that Defendants-Appellants had been deemed and
that the lawsuit arose out of a category of covered services.
Instead, the Attorney General notified the state court that Defendants-
Appellants’ deeming status was “under consideration.” Nearly one year later, the
Attorney General amended its notice, advising the state court that Drs. Khalifa and
Poursharif “are not deemed to be employees of the Public Health Service . . . with
respect to the actions or omissions that are the subject of the above captioned action.”
For the reasons explained in our concurrently-filed Blumberger opinion, the
Attorney General therefore did not give the state court timely notice of the
Secretary’s decision, as required by § 233(l)(1). “Had it done so, the Attorney
5 General would have been obligated to remove the case to federal court.”
Blumberger, slip op. at 45. Of course, this would not have precluded the Attorney
General from arguing at a subsequent hearing in district court that the doctors were
not acting within the scope of their fictive PHS employment, and indeed the Attorney
General is still not precluded from making such argument. He may still seek remand
on that basis. See id. (citing 42 U.S.C. § 233(c)). But Defendants-Appellants are
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NOT FOR PUBLICATION FILED SEP 4 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
A. H., a minor by and through her Guardian No. 22-56061 Ad Litem Sandra Guzman; SANDRA GUZMAN, individually, D.C. No. 2:22-cv-07148-DSF-PVC Plaintiffs-Appellees,
v. MEMORANDUM*
AHMAD KHALIFA, M.D.; BORZOUYEH POURSHARIF, M.D.; EISNER PEDIATRIC & FAMILY MEDICAL CENTER, DBA Eisners Health Los Angeles Womens Center,
Defendants-Appellants,
FARNAAZ KIA, M.D.; DIGNITY HEALTH, Erroneously sued as California Hospital Medical Center,
Defendants-Appellees,
and
DOES, 1 to 100,
Defendant,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.
UNITED STATES OF AMERICA,
Movant-Appellee.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding
Argued and Submitted November 14, 2023 Pasadena, California
Before: PARKER,** BYBEE, and DESAI, Circuit Judges. Partial Dissent by Judge DESAI.
In this appeal, we must determine whether Defendants-Appellants Dr. Ahmad
Khalifa, Dr. Borzouyeh Poursharif, and Eisner Pediatric and Family Medical
Services (“Eisner”) properly removed Plaintiffs-Appellees A.H. and Sandra
Guzman’s medical malpractice suit to federal court. This inquiry requires us to
determine how two removal statutes—28 U.S.C. § 1442 and 42 U.S.C. § 233—
interact. Our concurrently-filed opinion in Blumberger v. Tilley, No. 22-56032 (9th
Cir. Sept. 3, 2024), considers a case presenting nearly identical facts, so both the
reasoning and outcome of that decision guide ours here. We assume familiarity with
** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 2 both the facts and the statutory background of this case. Consistent with
Blumberger, we vacate the district court’s order remanding the case to state court,
and we remand for further proceedings consistent with § 233.
1. First, we conclude that the district court’s analysis of the timeliness of Drs.
Khalifa and Poursharif’s § 1442 removal proceeded under the wrong legal standard,
and we remand on that basis. For the reasons we explain in the concurrently-filed
opinion, the district court’s analysis of federal-officer removal should have
proceeded under § 1446(b)(3) rather than § 1446(b)(1). Blumberger, slip op. at 13–
19. In particular, Plaintiffs-Appellees have not pointed to any facts in the record that
would suggest that the doctors were aware of Eisner’s deemed status before the
complaint was filed, and the complaint itself contains no information that would
have put the doctors on notice of their deemed status. In fact, Plaintiffs-Appellees’
complaint alleged that Drs. Khalifa and Poursharif performed labor and delivery
services at California Hospital Medical Center, which, unlike Eisner, was not
“deemed” an employee of the PHS. On these bare facts, it was not apparent from
the face of the complaint that the doctors could have removed the case to federal
court.1 See Blumberger, slip op. at 15–16; 28 U.S.C. § 1446(b)(1). We remand to
1 That Eisner itself was also sued does not change the analysis with respect to the doctor defendants. The removal clock is personal to each defendant. See Destfino 3 the district court to determine when the doctors’ 30 days under § 1446(b)(3) began
to run based on receipt of the deeming notice, consistent with our decision in
Blumberger and our precedents on 1446(b)(3). Blumberger, slip op. at 19.
Conversely, Eisner’s § 1442 removal was untimely. As a federally-funded
medical center, Eisner had been party to the deeming process with HHS, so it was
on notice from the filing of the complaint that it could have asserted federal officer
removal under § 1442 based on its relationship with HHS. See 28 U.S.C.
§ 1446(b)(1).
2. Even if, assuming arguendo, Defendants-Appellees’ § 1442 removal was
untimely under § 1446(b)(3), we nevertheless may review the remainder of the
district court’s order because the case was removed “pursuant to section 1442.”
Blumberger, slip op. at 22; 28 U.S.C. § 1447(d).
3. We reverse the district court’s conclusion that the Attorney General’s
October 4, 2021, notice to the state court that Drs. Khalifa and Poursharif’s deeming
statuses were “under consideration” satisfied the advice requirement of § 233(l)(1).
“[S]ubsection (l)(1) requires the Attorney General to provide positive advice to the
v. Reiswig, 630 F.3d 952, 955 (9th Cir. 2011) (“[E]ach defendant has thirty days to remove after being brought into the case.”). Whether Eisner knew of its own deemed status has little bearing on whether the doctors’ 30 days began to run when the complaint was filed. 4 state court when the employee was deemed for the time period at issue and the
lawsuit arises out of a class or category of medical conduct for which the employee
was deemed.” Blumberger, slip op. at 27. Eisner Pediatric and Family Medical
Services and its employees—including Drs. Khalifa and Poursharif—were deemed
employees of the PHS by HHS for the 2020 calendar year, which covered Eisner’s
employees “for damage for personal injury, including death, resulting from the
performance of medical, surgical, dental, or related functions.” Plaintiffs-Appellees’
complaint states that their causes of action arose out of conduct that was medical or
surgical in nature during 2020. At its October 4, 2021, appearance, the Attorney
General needed only to confirm that Defendants-Appellants had been deemed and
that the lawsuit arose out of a category of covered services.
Instead, the Attorney General notified the state court that Defendants-
Appellants’ deeming status was “under consideration.” Nearly one year later, the
Attorney General amended its notice, advising the state court that Drs. Khalifa and
Poursharif “are not deemed to be employees of the Public Health Service . . . with
respect to the actions or omissions that are the subject of the above captioned action.”
For the reasons explained in our concurrently-filed Blumberger opinion, the
Attorney General therefore did not give the state court timely notice of the
Secretary’s decision, as required by § 233(l)(1). “Had it done so, the Attorney
5 General would have been obligated to remove the case to federal court.”
Blumberger, slip op. at 45. Of course, this would not have precluded the Attorney
General from arguing at a subsequent hearing in district court that the doctors were
not acting within the scope of their fictive PHS employment, and indeed the Attorney
General is still not precluded from making such argument. He may still seek remand
on that basis. See id. (citing 42 U.S.C. § 233(c)). But Defendants-Appellants are
“entitled to a hearing in a federal court to determine [their] status.” Id.
4. Lastly, the Attorney General was obligated to remove the case with respect
to Eisner itself. As discussed, the Attorney General was required to advise the state
court that Eisner had been “deemed” a PHS employee with respect to the acts or
omissions giving rise to the suit within fifteen days upon receiving notice. Id., [draft
op. at 36–38]. Eisner was “deemed” for the relevant time period, and the lawsuit
arises out of the provision of a class of care for which Eisner was covered.
Furthermore, even if the Attorney General need not have provided the state court
with a definitive answer in its first appearance in state court, it was obligated to
remove after it provided its amended notice of Eisner’s “deemed” status on
September 1, 2022. 42 U.S.C. § 233; see Blumberger, slip op. at 43. Although we
do not read into the statute a specific time limitation within which the government
6 must remove the case, the government has not provided any reasonable justification
for its failure to remove the case to federal court.
Instead, Plaintiffs-Appellees, “[b]ased on the Government’s representation,”
prepared a stipulation to dismiss the claims against Eisner for prenatal care “to
expedite” the case and avoid removal to federal court. However, neither Eisner nor
the district court judge signed the stipulation, and the issue was not addressed in the
district court’s order granting the motion to remand the case to state court. Plaintiffs-
Appellees contend in their briefing that “for all practical purposes the only live
claims in this case are based on the labor and delivery at California Hospital.” But
they have not moved to dismiss Eisner or their claims against it, see Cal. Civ. Code
§ 581(c), and Eisner remains a named defendant in the state court proceedings, see
A.H. v. Khalifa, No. 21-ST-CV-05325 (Cal. Super. Ct. filed Feb. 9, 2021). Indeed, it
is unclear whether Plaintiffs-Appellees would still desire to dismiss their claims
against Eisner upon remand. Thus, we vacate the district court’s order as to Eisner.
***
In sum, the government was obligated to remove the case to federal court in
accordance with § 233(l)(1) and (c). We therefore vacate the district court’s remand
order, and we remand the case to the district court for further proceedings consistent
7 with § 233 and our opinion in Blumberger. See Blumberger, slip op. at 58. Each
party shall bear its own costs.
REVERSED in part, VACATED in part, and REMANDED.
8 FILED SEP 4 2024 A.H. v. Khalifa, No. 22-56061 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DESAI, Circuit Judge, dissenting in part:
I respectfully dissent from Sections 3 and 4 of the majority’s disposition
addressing removal under 42 U.S.C. § 233. I would hold that Dr. Khalifa, Dr.
Poursharif, and Eisner improperly removed the case under 42 U.S.C. § 233(l)(2). A
state court defendant can remove a case under § 233(l)(2) only if the Attorney
General “fails to appear” in state court “within the time period prescribed” in
§ 233(l)(1). That did not happen here. The Attorney General appeared in state court
within the time period prescribed in § 233(l)(1) and advised the state court that
whether the defendants were “deemed” PHS employees “with respect to the actions
or omissions that are the subject of the above captioned action” was “under
consideration.” As explained in my dissent in Blumberger v. Tilley, No. 22-56032
(9th Cir. Aug. 29, 2024), slip op. at 63–64 (Desai, J., dissenting), the Attorney
General did not “fail to appear,” and the defendants’ removal was improper.1 I thus
1 I agree with my colleagues that the Attorney General later became obligated to remove the case on behalf of Eisner when the Attorney General filed an amended notice confirming Eisner’s deemed status “to the extent that the action is brought for prenatal care provided by Eisner . . . prior to hospital admission.” It is unclear on this record whether there are any pending claims against Eisner. The plaintiffs previously submitted a proposed stipulation to dismiss the claims against Eisner for prenatal care, but Eisner did not agree to that stipulation. If there are pending claims against Eisner that have not been formally dismissed in state court, the Attorney General must remove the case on behalf of Eisner. 42 U.S.C. § 233(l)(1), (c).
1 dissent from the portion of the majority’s decision vacating the district court’s
remand order under 42 U.S.C. § 233.