Yashica Sherman v. Rakhi Sinha

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 2021
• Docket: 19-55697
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YASHICA SHERMAN, an incompetent No. 19-55697 adult, by and through her guardian ad litem, David Sherman; et al., D.C. No. 2:19-cv-01584-R-SS

Plaintiffs-Appellees, MEMORANDUM* v.

RAKHI SINHA, D.O.,

Defendant-Appellant,

DIGNITY HEALTH, DBA California Hospital Medical Center,

Defendant-Appellee,

and

GRAND MEDICAL ASSOCIATES; DOES, 1 through to 50, inclusive,

Defendants,

v.

UNITED STATES OF AMERICA,

Movant-Appellee.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted January 29, 2021** Pasadena, California

Before: CALLAHAN and IKUTA, Circuit Judges, and BENCIVENGO,*** District Judge. Concurrence by Judge IKUTA

Dr. Rahki Sinha seeks review of the district court’s remand of a civil action

against her to the state court. Although the scope of our review is limited, we

conclude that the district court properly remanded the action to state court because

Sinha’s removal was premature.

The underlying civil action against Sinha and others was filed in January

2019 in the California Superior Court for Los Angeles. On January 25, Sinha was

served through substitute service by mail. Within a week the complaint was

delivered to the U.S. Department of Health and Human Services (HHS). It

appears, however, that the proffered complaint did not include the state court

number or indicate that the complaint had been filed. Additional information was

requested and was provided on February 26, 2019.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation.

2 On March 4, Sinha removed the case to federal court citing 42 U.S.C.

§ 233(l)(2), 28 U.S.C. § 1442, and 28 U.S.C. § 2679(d)(3). On

March 6, the U.S. Attorney for the Central District of California filed a notice

pursuant to § 233(l)(1) in the state court stating that whether Sinha was “deemed to

be an employee of the Public Health Service for purposes of 42 U.S.C. § 233 with

respect to the actions or omissions that are the subject of [this] action is under

consideration.”

On March 27, the United States filed a motion to remand the action to state

court. Sinha opposed the motion and filed a motion to substitute the United States

as defendant. The district court granted the motion to remand and denied as moot

Sinha’s motion to substitute. Sinha filed a timely notice of appeal.

Sinha sought removal under two distinct statutes. The first, 42 U.S.C. § 233

provides that for claims for personal injury against certain federal officers and

employees based on actions taken within their employment, an action against the

United States is the exclusive remedy. Sinha asserted that she was employed by

the South Central Family Health Center, which is a federally-funded health center,

and was “deemed” a federal employee pursuant to the Federal Supported Health

Centers Assistance Act of 1992 (FSHCAA), 42 U.S.C. § 233(g)-(n).

Section 233(l)(1) provides that if certain federal entities are sued in a state

court, “the Attorney General, within 15 days after being notified of such filing,

3 shall make an appearance in such court and advice such court as to whether . . .

[the defendant] . . . is deemed to be an employee of the Public Health Service for

purposes of this section with respect to the actions or omissions that are the subject

of such civil action.” 42 U.S.C. § 233(l)(2) provides that “if the Attorney General

fails to appear in State court within the time period prescribed,” the federal

defendant may petition to remove the case to the appropriate district court.

However, Sinha’s motion also sought removal pursuant to 28 U.S.C. §

1442(a)(1), which provides that if a civil action is commenced in state court

against a federal officer “for or relating to any act under color of such office,” the

federal defendant may remove the action to a federal district court.

Although a remand order is a final decision that might otherwise be subject

to review on appeal, see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714

(1996), here we are constrained by 28 U.S.C. § 1447(d), which states:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

Sinha sought removal under § 233(l)(2) and § 1442(a)(1), and the district

court addressed the two statutes separately. But the exception clause of 28 U.S.C.

§ 1447(d) does not allow us “to conduct plenary review of the district court’s

remand order.” Cty. of San Mateo v. Chevron Corp., 960 F.3d 586, 595 (9th Cir.

4 2020). Instead, we may review the remand order “only to the extent that the order

addresses” § 1442 or § 1443. Id.; see also Patel v. Del Taco, Inc., 446 F.3d 996

(9th Cir. 2006). We therefore dismiss Sinha’s appeal to the extent that it seeks

review of the portions of the district court’s order concerning § 233(l)(2). See id.

at 598.

We agree with the district court that Sinha’s removal was premature and did

not properly invoke the district court’s jurisdiction. Section 233(l)(1) allows the

Attorney General “15 days after being notified” in which to make an appearance in

the state court. Here, although Sinha initially informed HHS of the underlying

complaint on January 31, she did not provide HHS with critical information until

February 26 and the Attorney General appeared in the state court on March 4, well

within the 15 days allowed by § 233(l)(1).

Sinha argues that the Attorney General did not “appear” in state court

because the Attorney General did not definitively advise the court of whether

Sinha was considered a federal officer. However, she cites no authority in support

of her position, and it is contrary to the statutory scheme and unworkable as a

practical matter. Certification of a public health organization under FSHCAA does

not necessarily cover all of the organization’s employees or all of an employee’s

activities. Accordingly, a final determination of whether the federal government

should represent a particular defendant in a civil action may take more than two

5 weeks. Moreover, Sinha has not shown that either she or the state court was

prejudiced or inconvenienced by the Attorney General’s statement to the state

court that coverage was under consideration.

If allowed, the premature removal of the case to the district court would

bypass the Attorney General’s initial determination of whether a defendant public

health worker should be deemed a federal officer. Providing the Attorney General

with the opportunity to consider the issue is a prerequisite to federal jurisdiction.

Indeed, the third statute cited in Sinha’s removal petition, 28 U.S.C.

§ 2679(d)(3), provides that where the Attorney General refuses to certify the scope

of a defendant’s office, the defendant may petition the state court to find that the

defendant was acting within the scope of her federal office or employment and that

if the court so certifies, the Attorney General may then remove the case to the

appropriate district court. Thus, the district court’s jurisdiction is properly invoked

only after the Attorney General has had an opportunity to determine whether the

defendant is deemed a federal officer.

Because Sinha sought to remove the civil action to the district court before

expiration of the time set for the Attorney General to determine whether she would

be deemed a federal officer, the removal was premature and the district court’s

remand of the action to state court is affirmed.

DISMISSED in part and AFFIRMED in part.

6 FILED FEB 2 2021 Sherman v. Sinha, No. 19-55697 IKUTA, J., specially concurring. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I would dismiss in part and affirm in part. As the majority correctly states,

we have jurisdiction to review the remand order only to the extent that it addresses

§ 1442(a)(1). Maj. at 5. I therefore agree with the majority’s dismissal of Sinha’s

appeal “to the extent that it seeks review of the portions of the district court’s order

addressing § 233(l)(2).” Id. Because the majority dismisses this portion of Sinha’s

appeal, however, the majority errs in nevertheless addressing the question whether

the district court was correct in determining that Sinha’s removal under § 233(l)(2)

was premature. See id. at 5–6.

Instead, we may review the removal order only to the extent that it addresses

§ 1442(a)(1). When seeking to remove a case under § 1442, defendants must file a

notice of removal within thirty days of receiving, “through service or otherwise, . .

. a copy of the initial pleading.” 28 U.S.C. § 1446(b)(1); see also Jordan v.

Nationstar Mortg. LLC, 781 F.3d 1178, 1179 (9th Cir. 2015) (“Section 1446(b)(1)

permits defendants to remove state-court actions to federal court within thirty days

of receiving an initial pleading or other document that reveals a basis for

removal.”). Here, it is undisputed that Sinha was served on January 25, 2019.

Sinha sought to remove this case on March 4, 2019, thirty-eight days later. The

notice of removal, to the extent that it was based on § 1442(a)(1), was therefore untimely. I would affirm the district court’s order remanding Sinha’s case to state

court to the extent that it was removed under § 1442(a)(1).