Razmzan v. United States ( 2021 )

19-227-cv
Razmzan v. United States
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2019
No. 19-227
AISHA AGYIN,
Plaintiff,
v.
SHAHRAM RAZMZAN,
Defendant-Appellant,
UNITED STATES OF AMERICA,
Appellee.*
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: FEBRUARY 4, 2020
DECIDED: JANUARY 26, 2021
Before: POOLER, LYNCH, and MENASHI, Circuit Judges.
* The Clerk of Court is directed to amend the caption as set forth above.
After he was sued for medical malpractice in state court,
Dr. Shahram Razmzan removed the case to federal court and moved
to substitute the United States as the defendant in his place. Razmzan
argued that the alleged malpractice occurred within the scope of his
employment at a federally deemed community health center,
entitling him to immunity and the substitution of the United States as
the defendant under the Federally Supported Health Centers
Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n).
The U.S. District Court for the Southern District of New York
(Karas, J.) disagreed in part. It concluded that some of the alleged
malpractice occurred outside the scope of Razmzan’s employment
because he had billed for some of his services privately, in
contravention of the Federal Tort Claims Act Health Center Policy
Manual (the “FTCA Manual”), and that he was therefore not covered
by the FSHCAA implementing regulation, 42 C.F.R. § 6.6. The district
court denied substitution of the United States as to that conduct and
remanded the case in part to state court. Razmzan appealed.
The government argues that we lack jurisdiction to entertain
this appeal because Razmzan appealed from an unreviewable
remand order. Pursuant to 28 U.S.C. § 1447(d), remand orders are
unreviewable except in cases that were originally removed under 28
U.S.C. § 1442 or § 1443. Because Razmzan removed this case under
§ 1442, we are not barred from reviewing the district court’s remand
order. As to the merits of the appeal, we conclude that Razmzan was
acting within the scope of his employment under the relevant law—
New York law—for the acts for which he billed privately. The FTCA
Manual is not entitled to deference to the extent that it provides
otherwise. Accordingly, we REVERSE the district court’s order in
2
part and REMAND for further proceedings consistent with this
opinion.
MATTHEW S. FREEDUS, Feldesman Tucker Leifer Fidell
LLP, Washington, DC (Jonay F. Holkins and David A.
Bender, on the brief), for Defendant-Appellant.
BENJAMIN H. TORRANCE, Assistant United States
Attorney (Jennifer C. Simon, Assistant United States
Attorney, on the brief), for Audrey Strauss, United States
Attorney for the Southern District of New York, New
York, NY, for Appellee.
MENASHI, Circuit Judge:
In 2016, Aisha Agyin sued Dr. Shahram Razmzan in state court
for medical malpractice related to his delivery of her stillborn child.
At the time of the alleged malpractice, Razmzan was an employee of
Hudson River Health Care, Inc. (“HRHCare”), a “deemed”
community health center pursuant to the Federally Supported Health
Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n). Under
the FSHCAA, federally deemed community health centers and their
employees are immune from malpractice suits for acts or omissions
that occur within the scope of their employment. Based on this
immunity, Razmzan removed the action to the U.S. District Court for
the Southern District of New York and filed a motion to substitute the
United States as the defendant.
After the case was removed, the government argued that
Razmzan was not entitled to immunity and substitution because he
3
acted outside the scope of his employment when he billed for his
services privately, in contravention of the Federal Tort Claims Act
Health Center Policy Manual (the “FTCA Manual”), removing him
from coverage under 42 C.F.R. § 6.6. The district court (Karas, J.)
agreed with the government in part, denied substitution of the United
States with respect to the conduct for which Razmzan billed privately,
and remanded part of the case to state court. Razmzan appealed.
Under 28 U.S.C. § 1447(d), we lack jurisdiction to review a
remand order unless the case was removed under 28 U.S.C. § 1442 or
§ 1443. The government argues that we lack jurisdiction because
Razmzan did not remove this case under either section. We disagree.
Razmzan invoked 28 U.S.C. § 1442(a)(1) in his notice of removal and
adequately pleaded the required elements, giving us appellate
jurisdiction over the question of whether removal was proper.
Because, on reviewing that question, we conclude that removal was
proper, we have jurisdiction to review the underlying merits of the
district court’s remand order.
As to the merits, we conclude that Razmzan acted within the
scope of his employment when performing the services for which he
billed privately. Under 42 U.S.C. § 233, Razmzan’s scope of
employment is determined by the “law of the place”—here, the law
of the State of New York. Under New York law, Razmzan acted
within the scope of his employment for these services because he
acted in furtherance of his employment contract with HRHCare and
to benefit HRHCare. To the extent the FTCA Manual provides
otherwise, it is not entitled to deference. Because we conclude that
Razmzan acted within the scope of his employment for the services
for which he billed privately, we reverse the district court’s order in
part and remand for further proceedings consistent with this opinion.
4
BACKGROUND
Razmzan is an experienced obstetrician and gynecologist who
served as a part-time employee for HRHCare. During the relevant
period, HRHCare was a federally deemed community health center,
receiving federal grant funds under Section 330 of the Public Health
Service Act, 42 U.S.C. § 254b. In 2010, HRHCare hired Razmzan to
serve as the medical director of its Park Care site in Yonkers, New
York. Razmzan’s employment contract stated that his
“responsibilities … include[d] the care of HRHCare’s hospitalized
and outpatient Ob-Gyn patients in [HRHCare’s] Yonkers, NY offices”
and that he would “manage HRHCare’s patients when they require
hospitalization.” Supp. App’x 30. As compensation for his services,
Razmzan was to receive an annual salary of $165,000 but, in addition,
was “responsible for”—and entitled to—“all hospital billing and
collections” for services he provided at hospitals. Id. at 31.
In his notice of removal, Razmzan alleged that his employment
agreement with HRHCare was designed to “compensate him directly
through a salary with respect to his outpatient services to HRHCare
patients and indirectly by allowing him to bill and collect payment
for the inpatient services he rendered to HRHCare patients … at the
hospital.” Id. at 9. According to Razmzan, “[t]his arrangement was
designed to benefit HRHCare” because HRHCare “could not afford
to pay Dr. Razmzan, given his level and years of experience, on a
salaried basis for his outpatient and inpatient services,” so “[b]y
designing an agreement that effectively assigned the revenue
HRHCare would have otherwise received to Dr. Razmzan for
inpatient services to its patients, HRHCare benefited by securing a
highly experienced OBGYN to serve its patients without having to
commit itself to a fixed salary that would adequately compensate
5
Dr. Razmzan.” Id. at 9-10. The district court accepted this account of
the contract. App’x 66-67.
The FSHCAA authorizes the Secretary of the Department of
Health and Human Services to deem certain health centers that
receive federal funds, and their employees, to be employees of the
Public Health Service (“PHS”) for the purposes of 42 U.S.C. § 233.
Under § 233(a), PHS employees are entitled to the protections of the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), including
“absolute immunity … for actions arising out of the performance of
medical or related functions within the scope of their employment.”
Hui v. Castaneda, 559 U.S. 799, 806 (2010). To obtain deemed federal
status, HRHCare was required to submit an application on behalf of
itself and its employees each year. And each year during the relevant
period, HRHCare submitted deeming applications on behalf of itself
and its employees, including Razmzan. Those deeming applications
were granted, and “[o]nce the Secretary makes a determination that
an entity … is deemed to be an employee of the Public Health Service
for purposes of [§ 233], the determination [is] … final and binding
upon the Secretary and the Attorney General and other parties to any
civil action or proceeding.” 42 U.S.C. § 233(g)(1)(F).
When a deemed employee is sued “for damage for personal
injury, including death, resulting from the performance of medical,
surgical, dental, or related functions … the Attorney General, within
15 days after being notified of such filing, shall make an appearance
… and advise … as to whether the Secretary has determined” that the
employee is “deemed to be an employee of the Public Health Service
… with respect to the actions or omissions that are the subject of such
civil action or proceeding.” Id. § 233(a), (l)(1). If the Attorney General
does so, the civil action or proceeding “shall be removed without
6
bond at any time before trial … 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.” Id. § 233(c). “If the Attorney General fails to appear in
State court within the time period prescribed … upon petition of” the
employee, “the civil action or proceeding shall be removed to the
appropriate United States district court.” Id. § 233(l)(2).
Agyin was a patient of HRHCare who received prenatal care
from HRHCare throughout her pregnancy with twins. When Agyin
was thirty-seven weeks pregnant, she saw Razmzan for a prenatal
visit at an HRHCare clinic. Concerned about the risks of Agyin’s
pregnancy, Razmzan recommended that Agyin deliver the next day
and scheduled a delivery at St. John’s Riverside Hospital. Razmzan
performed the delivery of Agyin’s twins at the hospital, and one of
the twins was stillborn. After Agyin was discharged from the
hospital, Razmzan met with her at least two more times at the
HRHCare clinic. In accordance with his employment contract,
Razmzan billed and received payment privately for the delivery of
Agyin’s twins. He did not bill privately for the outpatient services he
provided to Agyin at the HRHCare clinic.
Agyin sued Razmzan for medical malpractice in New York
state court. Razmzan removed the case to the U.S. District Court for
the Southern District of New York under 28 U.S.C. § 1442(a)(1) and 42
U.S.C. § 233(l)(2), and he moved for substitution of the United States
as the defendant in his place. The district court heard argument on
Razmzan’s motion and concluded that Razmzan acted outside the
scope of his employment when he delivered Agyin’s children because
he billed and received compensation for the delivery privately. In its
ruling, the district court deferred to the FTCA Manual, a Department
7
of Health and Human Services (HHS) policy document which
provides that “FTCA coverage will apply to the provider … as long
as … [t]he funds received by the provider … are transferred directly
to the health center.” 1 Razmzan moved for reconsideration, and after
hearing argument, the district court denied his motion. Razmzan then
appealed.
DISCUSSION
The government argues that we lack jurisdiction to hear this
appeal under 28 U.S.C. § 1447(d) because Razmzan did not remove
the case under 28 U.S.C. § 1442 or § 1443. Razmzan argues that he
removed the case under § 1442 and that we therefore have jurisdiction
to hear his appeal. Razmzan further argues that the district court
erred when it concluded that he acted outside the scope of his
employment for the services for which he billed privately. We review
an appeal from an order of remand de novo. See Shapiro v. Logistec USA,
Inc., 412 F.3d 307, 310 (2d Cir. 2005). We also review scope-of-
employment determinations de novo. McHugh v. Univ. of Vt., 966 F.2d
67, 72 (2d Cir. 1992).
I
We begin with the question of our jurisdiction to hear this
appeal. The exercise of appellate jurisdiction here is proper because
Razmzan’s notice of removal asserted a colorable claim for removal
under § 1442. That alone is sufficient for us to exercise appellate
jurisdiction over the question of § 1442 removal, even if we were
1 Health Res. & Servs. Admin., U.S. Dep’t of Health & Hum. Servs., Federal
Tort Claims Act Health Center Policy Manual at 13 (July 21, 2014), available at
https://bphc.hrsa.gov/sites/default/files/bphc/ftca/pdf/ftcahcpolicymanualpdf.pdf
(last visited Jan. 19, 2021).
8
ultimately to conclude that the removal itself was improper. See, e.g.,
Veneruso v. Mount Vernon Neighborhood Health Ctr., 586 F. App’x 604,
606 (2d Cir. 2014) (noting that only a “bare or frivolous invocation” of
§ 1442 “would require us to dismiss the appeal for lack of appellate
jurisdiction”).
Furthermore, we conclude that removal under § 1442 was
proper here because Razmzan was acting under a federal officer when
he treated Agyin at the hospital and the other requirements of § 1442
are met. We reject the government’s contentions that Razmzan’s
removal was procedurally defective because it was untimely or
inadequately pleaded. We address each of these issues in turn.
A
Section 1442 authorizes “[t]he United States or any agency
thereof or any officer (or any person acting under that officer) of the
United States or of any agency thereof” to remove actions “for or
relating to any act under color of such office.” 2 Under § 1442, “federal
officer removal must be predicated on the allegation of a colorable
federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989).
As this court has explained, “To invoke the statute, a defendant
who is not himself a federal officer must demonstrate that (1) the
defendant is a ‘person’ under the statute, (2) the defendant acted
‘under color of federal office,’ and (3) the defendant has a ‘colorable
2 See In re Commonwealth’s Motion to Appoint Counsel Against or Directed to
Def. Ass’n of Phila., 790 F.3d 457, 467 (3d Cir. 2015) (noting that Congress’s
addition of “the ‘or relating to’ language [was] ‘intended to broaden the
universe of acts that enable Federal officers to remove to Federal court’”)
(quoting H.R. Rep. No. 112-17, pt. 1, at 6 (2011), as reprinted in 2011
U.S.C.C.A.N. 420, 425).
9
federal defense.’” Cuomo v. Crane Co., 771 F.3d 113, 115 (2d Cir. 2014)
(quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir. 2008));
see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,
488 F.3d 112, 124 (2d Cir. 2007).
Razmzan is a “person,” see 1 U.S.C. § 1, and he has raised a
colorable federal defense. In the district court, Razmzan prevailed in
raising a federal defense with respect to his conduct at the clinic.
App’x 71. That defense alone suffices for removal under § 1442
because he raised it at the time of filing his notice of removal. See
Pantalone v. Aurora Pump Co., 576 F. Supp. 2d 325, 329 (D. Conn. 2008)
(“The propriety of removal under the statute should be considered at
the time of removal.”). Neither the district court nor the government
now disputes that Razmzan raised a colorable federal defense as to
his conduct at the clinic at the time of removal. The only open
question therefore is whether Razmzan “acted ‘under color of federal
office’”—that is, whether he was “acting under” a federal officer and
acted “under color of such office”—when he provided medical
services at the clinic and/or the hospital.
1
While the general removal statute must be strictly construed,
see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941), both
§ 1442 and especially its “acting under” provision must be read
broadly, see Isaacson, 517 F.3d at 136 (“The words ‘acting under’ are to
be interpreted broadly, and the statute as a whole must be liberally
construed.”); see also Crane Co., 771 F.3d at 115 (“The Supreme Court
has cautioned that the scope of the federal officer removal statute ‘is
not narrow or limited.’”) (quoting Willingham v. Morgan, 395 U.S. 402,
406 (1969)). Courts generally apply a broad construction—
10
particularly with respect to private parties who claim to be “acting
under” a federal officer. See Gurda Farms, Inc. v. Monroe Cty. Legal
Assistance Corp., 358 F. Supp. 841, 843 (S.D.N.Y. 1973) (“Even a cursory
survey of the application of the statute reveals it has been construed
broadly, and its ‘persons acting under’ provision particularly so.”).
Not only must the words of § 1442 be construed broadly but a court
also must “credit [the d]efendants’ theory of the case” when
evaluating the relationship between the defendants’ actions and the
federal officer. Isaacson, 517 F.3d at 137 (citing Jefferson Cnty. v. Acker,
527 U.S. 423, 432 (1999)).
Congress used the words “acting under” to describe “the
triggering relationship between a private entity and a federal officer.”
Watson v. Philip Morris Cos., 551 U.S. 142, 149 (2007). That relationship
involves “an effort to assist, or to help carry out, the duties or tasks of
the federal superior.” Id. at 152. The Supreme Court has said, for
example, that a private company acting pursuant to a contract with
the federal government has this relationship. Indeed, “courts have
unhesitatingly treated the ‘acting under’ requirement as satisfied
where a contractor seeks to remove a case involving injuries arising
from equipment that it manufactured for the government.” Sawyer v.
Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017) (emphasis
omitted).
When “Dow Chemical fulfilled the terms of a contractual
agreement by providing the Government with a product that it used
to help conduct a war,” Dow Chemical acted under the United States.
Watson, 551 U.S. at 153-54. Dow Chemical was “acting under” a
federal officer because it “performed a job that, in the absence of a
contract with a private firm, the Government itself would have had
to perform.” Id. at 154; see also Papp v. Fore-Kast Sales Co., 842 F.3d 805,
11
812 (3d Cir. 2016) (“The classic case of such assistance as it relates to
government contractors is when the private contractor acted under a
federal officer or agency because the contractors helped the
Government to produce an item that it needed.”) (internal quotation
marks and alterations omitted); Ruppel v. CBS Corp., 701 F.3d 1176,
1181 (7th Cir. 2012) (“‘Acting under’ covers situations … where the
federal government uses a private corporation to achieve an end it
would have otherwise used its own agents to complete.”). In reaching
its conclusion in Watson, the Supreme Court considered whether there
had been a “delegation of legal authority” from the federal
government to the private party or a “contract, … payment, …
employer/employee relationship, or … principal/agent arrangement”
between the federal government and the private party. 551 U.S. at 156.
A district court in our circuit previously concluded that
“attorneys in an [Office of Economic Opportunity] funded legal
services program” were “‘persons acting under’ a federal officer
within the meaning of § 1442(a)(1).” Gurda, 358 F. Supp. at 843. The
court identified prior cases in which courts had “upheld the removal
of an action … against a private insurance company which had
contracted with the federal government to administer benefit
provisions of Medicare” and had “sustained the removal of a
garnishment action against a doctor who treated patients under
Medicare” because “the defendant had been acting under the
direction of the Secretary of Health, Education, and Welfare.” Id. at
844 (citing Kuenstler v. Occidental Life Ins. Co., 292 F. Supp. 532 (C.D.
Cal. 1968), and Allen v. Allen, 291 F. Supp. 312 (S.D. Iowa 1968)). The
court endorsed the view that “sound policy requires the availability
of a federal forum for adjudication of the legal status of persons who
colorably have been acting under federal direction” and found it
12
instructive that the private party had “performed work contemplated
by a federal statute.” Gurda, 358 F. Supp. at 844 (alteration omitted).
In a recent case, the Third Circuit concluded that the Federal
Community Defender, “a non-profit entity created through the
Criminal Justice Act that is delegated the authority to provide
representation under the CJA,” acted under a federal officer—the
Administrative Office of U.S. Courts. In re Commonwealth’s Motion, 790
F.3d at 469. The court explained that the Federal Community
Defender was statutorily required to have “stated purposes [that]
include implementation of the aims and purposes of the CJA” and to
“adopt bylaws consistent with representation under the CJA and a
model code of conduct similar to those governing Federal Public
Defender Organizations.” Id. Through its relationship with the
federal government, “the Federal Community Defender ‘assists’ and
helps the AO to ‘carry out the duties or tasks of a federal superior,’
which is to implement the CJA and [18 U.S.C.] § 3599 through the
provision of counsel to federal defendants and indigent federal
habeas corpus petitioners.” Id. (alteration omitted).
Even more recently, the Eleventh Circuit concluded that a non-
profit utility cooperative acted under a federal officer because such
cooperatives “exist to provide a public function conceived of and
directed by the federal government,” namely “bringing electricity to
sparsely populated rural areas that would not otherwise receive
electricity.” Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1143 (11th
Cir. 2017).
Razmzan falls neatly into these precedents. He performed a job
that—in the absence of the Federally Supported Health Centers
Assistance Act and its provision for deeming health centers and their
13
staffs to be federal employees—the federal government would have
had to perform itself: He assisted and helped to carry out the duties
of the federal government to provide medical care to the indigent. See
H.R. Rep. No. 104-398, at 5 (1995), as reprinted in 1995 U.S.C.C.A.N.
767, 769 (“The Federal government makes primary health care
services available to medically underserved populations …. [T]he
Department of Health and Human Services (HHS) makes grants to
public or private nonprofit entities to provide primary health care
services to specified underserved populations, regardless of their
ability to pay.”). 3 “Cases in which the Supreme Court has approved
removal involve defendants working hand-in-hand with the federal
government to achieve a task that furthers an end of the federal
government.” Ruppel, 701 F.3d at 1181. This is such a case.4
Moreover, Razmzan received from the federal government a
delegation of the same legal immunity that is extended to employees
of the Public Health Service, see Notice of Deeming Action, Supp.
App’x 21-22, and he acted pursuant to an employment contract with
3 See also H.R. Rep. No. 104-398, at 6 (“National Health Service Corps
physicians … provide much of the staffing for [federally supported
community] health centers.”); H.R. Rep. No. 102-823, at 5 (1992), as reprinted
in 1992 U.S.C.C.A.N. 2627, 2627 (“The Community and Migrant Health
Centers are the largest users of National Health Service Corps (NHSC)
physicians, and have historically depended on the program for more than
one-half of their physical staff. Sixty-five percent of NHSC physicians are
placed at the centers.”).
4 See also Health Res. & Servs. Admin., Agency Overview (last updated
Jan. 2021), https://www.hrsa.gov/sites/default/files/hrsa/about/hrsa-agency-
overview.pdf (“HRSA programs provide health care to people who are
geographically isolated and those who are economically or medically
vulnerable.”).
14
a federally supported community health center, which itself is subject
to detailed requirements and oversight by the federal government.5
2
Some courts also inquire into whether the person “acting
under” a federal officer was “under the direct and detailed control of
a federal agency or officer.” N.G. v. Downey Reg’l Med. Ctr., 140
F. Supp. 3d 1036, 1041 (C.D. Cal. 2015).6 Even assuming that inquiry
is required, Razmzan and the clinic that employed him would meet
that test. HRHCare was obliged to submit a deeming application
under 42 U.S.C. § 233(g)(1)(D) that certified its:
5 See H.R. Rep. No. 102-823, at 5 (“Federal requirements associated with the
grants are administratively burdensome and address all areas of
operation.”).
6 See also Watson, 551 U.S. at 153 (“[L]ower courts have held that
Government contractors fall within the terms of the federal officer removal
statute … [where the relationship] is an unusually close one involving
detailed regulation, monitoring, or supervision.”); Ellis v. Pneumo Abex
Corp., 798 F. Supp. 2d 985, 989 (C.D. Ill. 2011) (“The moving party must also
show that the claim ‘depends on the defendant’s following the directions
issued by that federal officer.’”); Freiberg v. Swinerton & Walberg Prop. Servs.,
245 F. Supp. 2d 1144, 1152 (D. Colo. 2002) (“The official must have direct
and detailed control over the defendant.”); Pack v. AC & S, Inc., 838 F. Supp.
1099, 1103 (D. Md. 1993) (“‘Direct control’ is established by showing strong
government intervention and the possibility that a defendant will be sued
in state court as a result of the federal control.”). But see Baker v. Atl. Richfield
Co., 962 F.3d 937, 944-45 (7th Cir. 2020) (“It is sufficient for the ‘acting under’
inquiry that the allegations are directed at the relationship between the
Companies and the federal government.”); Isaacson, 517 F.3d at 137-38 (“To
show causation, Defendants must only establish that the act that is the
subject of Plaintiffs’ attack … occurred while Defendants were performing
their official duties.”).
15
(1) implementation of appropriate policies and
procedures to reduce the risk of malpractice and
litigation; (2) review and verification of professional
credentials and privileges, references, claims history,
fitness, professional review organization findings, and
licensure status of health professionals; (3) cooperation
with the Department of Justice (DOJ) in the defense of
claims and actions to prevent claims in the future; and
(4) cooperation with DOJ in providing information
related to previous malpractice claims history.
Notice of Deeming Action, Supp. App’x 21-22. “In addition to the
relevant statutory and regulatory requirements, every deemed health
center is expected to follow HRSA’s FTCA-related policies and
procedures, which may be found online at
http://www.bphc.hrsa.gov.” Id. at 22. Those policies include a 94-page
Health Center Program Compliance Manual, which imposes
requirements for clinic operations including “Clinical Staffing,”
“Accessible Locations and Hours of Operation,” “Continuity of Care
and Hospital Admitting,” and even “Board Composition.” 7 The
policies also include a 151-page Health Center Program Site Visit
Protocol that provides for “Operational Site Visits” to occur “at least
once per project/designation period” in order to verify “compliance
with the Health Center Program.” 8
7 Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs.,
Health Center Program Compliance Manual (“Compliance Manual”) (last
updated Aug. 20, 2018), available at https://bphc.hrsa.gov/sites/default/files/
bphc/programrequirements/pdf/hc-compliance-manual.pdf.
8 Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs.,
Health Center Program Site Visit Protocol at 1-2 (last updated Feb. 27, 2020),
available at https://bphc.hrsa.gov/sites/default/files/bphc/programrequirements/
pdf/site-visit-protocol.pdf.
16
Although Razmzan “did not have a contract directly with the
United States,” and instead “was providing services … pursuant to a
subcontract,” he was still acting under a federal officer. Badilla v. Nat’l
Air Cargo, Inc., No. 12-CV-1066, 2014 WL 6390324, at *2, *4-7
(W.D.N.Y. Nov. 17, 2014). 9 The federal government retained
discretion to refuse to deem Razmzan an employee of the Public
Health Service based on his individual failure to “comply with the
policies and procedures that the [clinic] … implemented” to reduce
malpractice. 42 U.S.C. § 233(i). It also regulated his employment by
requiring the clinic to “provide the required primary and approved
additional health services of the center through staff,” Compliance
Manual at 28, “utilize staff that are qualified by training and
experience to carry out the activities of the center,” id., “assess[]
[Razmzan’s] clinical competence and/or fitness for duty,” id. at 29,
and “review[] and verif[y]” Razmzan’s “professional credentials,
references, claims history, fitness, professional review organization
findings, and license status,” 42 U.S.C. § 233(h)(2).
In sum, Razmzan was “acting under” a federal officer because
he performed work that, absent the program in which he participated,
the government would have had to perform itself; his work assisted
the mission of the federal agency that oversaw his work; and he was
subject to federal oversight and control. The argument for his ability
to remove his case is stronger than that of, for example, a private
company acting under a contract with the government. Unlike a
9 Cf. Restatement (Third) of Agency § 3.15 cmt. b (2006) (“When an agent is
itself a corporation or other legal person, its officers, employees, partners,
or members who are designated to work on the principal’s account are
subagents.”); id. § 3.15 (“The relationship[] … between the subagent and the
appointing agent’s principal [is a] relationship[] of agency.”).
17
contractor, the government actually treated Razmzan as the
equivalent of a government employee for the purposes of immunity
under § 233. Less has been held to suffice in other cases. 10
In fact, contrary to its position in this case, the government itself
has invoked § 1442 on behalf of deemed employees such as Razmzan.
See, e.g., Oviedo v. Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011); Nichols
v. Sabzwari, No. 4:17-CV-01621, 2017 WL 6389634, at *1 (D.S.C. Nov.
13, 2017); Gabriel v. Alger, No. 14-CV-03022, 2015 WL 1042507, at *1
(D. Colo. Mar. 5, 2015); Dominguez ex rel. Dominguez v. Verna, No. 10-
CV-4296, 2010 WL 4942225, at *3 (S.D.N.Y. Dec. 3, 2010). It did not err
in doing so.
The contrast between this case and a prior case, in which a
panel decided by summary order that a clinic was not “acting under”
a federal officer, illustrates why appellate review is proper. In
Veneruso, the court concluded that Mount Vernon Neighborhood
Health Center, “a federal grant recipient under the Public Health
Service Act,” was not acting under a federal officer when it received
distributions from a joint venture partner in violation of New York
law. 586 F. App’x at 605-08. The court explained that “Mount Vernon
does not and cannot contend that any of the many federal regulations
to which it is subject directed it to receive … the [illegal]
10See, e.g., Gates v. A.O. Smith Water Prods. Co., No. 3:13-CV-1435, 2014 WL
104965, at *3 (N.D.N.Y. Jan. 9, 2014) (noting that allegations that “contracts
were governed by an extensive set of federal standards and specifications
and that the Navy was involved in the design and manufacture of
equipment, including valves, from Crane” were sufficient “to show that
Crane acted ‘under’ Naval authorities in building and supplying
components, including valves, to assist the Navy in producing naval
vessels”).
18
[d]istributions.” Id. at 608. The implication is that if federal
regulations had directed the challenged conduct, the clinic would
have been acting under a federal officer and removal would have
been appropriate. That is the case here. In this case, 42 U.S.C. § 254b
identifies “obstetrics [and] gynecology” as “required primary health
services” that the clinic was required to provide in order to receive
PHS grants, see 42 U.S.C. § 254b(k)(3)(A), and to “maintain coverage
as a deemed PHS employee,” Notice of Deeming Action, Supp. App’x
22. Thus, Razmzan’s challenged conduct was directed by federal
regulation and he was acting under a federal officer.
3
Although this reading of § 1442 would permit deemed PHS
employees to remove cases under § 1442, in addition to § 233, it
would not render § 233 superfluous because removal under § 233
provides different rights to the removing party than does removal
under § 1442. Contra K.C. v. Cal. Hosp. Med. Ctr., No. 2:18-CV-06619,
2018 WL 5906057, at *6 (C.D. Cal. Nov. 8, 2018).
District courts in this circuit have considered removal under the
Westfall Act, 28 U.S.C. § 2679, a provision similar to § 233, and its
relationship to removal under § 1442. Those courts have recognized
that there may be “two ‘separate and alternative statutes, both of
which authorize removal of cases to federal court.’” Charles v. Inam,
No. 99-CV-12427, 2001 WL 79900, at *2 (S.D.N.Y. Jan. 30, 2001). 11
Although two removal statutes may be “largely overlapping, the
11See also Thornton-Burns Owners Corp. v. Navas, No. 13-CV-4241, 2014 WL
1392026, at *4 (E.D.N.Y. Apr. 9, 2014); A.Q.C. ex rel. Castillo v. Bronx-Lebanon
Hosp. Ctr., No. 11-CV-2656, 2012 WL 170902, at *4 (S.D.N.Y. Jan. 20, 2012);
De Masi v. Schumer, 608 F. Supp. 2d 516, 522-23 (S.D.N.Y. 2009).
19
distinction between the two provisions is important.” A.Q.C., 2012
WL 170902, at *4.
The distinctions are no less important here. First, a case may be
removed pursuant to § 1442 only “within 30 days” of receipt of the
initial pleading. 28 U.S.C. § 1446. This time limitation may be waived
by the other parties, but an untimely removal under § 1442 remains
subject to objection from those parties. By contrast, a case may be
removed under § 233 “at any time before trial.” 42 U.S.C. § 233. 12 This
extra time allows defendants to report the case to the Attorney
General and to learn whether the Attorney General will certify their
immunity from suit before deciding whether they must remove the
case by themselves. Second, a party who removed pursuant to § 1442
is entitled to appeal an order remanding the case for lack of subject
matter jurisdiction. 28 U.S.C. § 1447(d). By contrast, a party who
removed pursuant to § 233 has no such right to appeal. See id. Third,
a party who removed pursuant to § 233(l)(2) is entitled to an
automatic stay of proceedings in the state court, while a party who
removed pursuant to § 1442 is not.
Had Congress not enacted § 233—and had there been a timely
motion to remand after Razmzan’s untimely removal under § 1442—
Razmzan may not have been able to have his colorable federal defense
adjudicated by a federal court. We are not faced with that situation,
given the waiver of the timeliness objection, 13 but it demonstrates
that this reading of § 1442 does not render § 233 superfluous.
12 See also A.Q.C., 2012 WL 170902, at *4 (noting the distinction between a
statute that permits removal “at any time before trial” and § 1442, with its
thirty-day time limitation).
13 We address the timeliness of the removal infra in Part I.C.
20
The government appears to be aware that removal under § 1442
and removal under § 233 provide different rights because the
government has removed cases under both statutory provisions rather
than relying only on § 233. See, e.g., Nichols, 2017 WL 6389634, at *1;
Rosenblatt v. St. John’s Episcopal Hosp., No. 11-CV-1106, 2012 WL
294518, at *1 (E.D.N.Y. Jan. 31, 2012); Oviedo, 655 F.3d at 422;
Dominguez, 2010 WL 4942225, at *3.
In general, § 233 lays out a detailed scheme requiring reporting
to the Attorney General, intervention by the Attorney General, and an
automatic stay in the state court. Only one element of that scheme—
the first sentence of § 233(l)(2), permitting removal—might overlap
with § 1442. It is not obvious that this small overlap would require us
to modify what would otherwise be the natural reading of § 1442
based on the lex specialis canon. But it is not a pure overlap because,
as explained above, removal under each provision has different
consequences. See In re Anheuser-Busch Beer Labeling Mktg. & Sales
Practices Litig., 644 F. App’x 515, 530 (6th Cir. 2016) (noting that a court
has “no occasion to apply the canon of lex specialis derogat legi generali”
when each statute “has its own scope and purpose” and the two
statutes “do not conflict”). For that reason, it is natural to understand
§ 233 as providing supplemental removal rights to persons in a
specific situation, even though such persons also may sometimes
remove under § 1442.
B
The government argues that even if Razmzan could qualify for
removal under § 1442, he failed to invoke that statute in his notice of
removal. Under 28 U.S.C. § 1446, Razmzan was required to provide
“a short and plain statement of the grounds for removal” in his notice
21
of removal. See Georgia v. Rachel, 384 U.S. 780, 793 n.21 (1966). This
requirement was “borrowed from the pleading requirement set forth
in Federal Civil Rule 8(a).” 14C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 3733 (rev. 4th ed. 2020). By
adopting it, “Congress … intended to simplify the pleading
requirements for removal and to clarify that courts should apply the
same liberal rules [to removal allegations] that are applied to other
matters of pleading.” Dart Cherokee Basin Operating Co. v. Owens, 574
U.S. 81, 87 (2014) (internal quotation marks omitted). Thus, “the same
liberal rules employed in testing the sufficiency of a pleading should
apply to appraise the sufficiency of a defendant’s notice of removal.”
Wright & Miller, supra, § 3733; see also Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008) (concluding that “it was
inappropriate” to impose “a higher pleading standard” on a notice of
removal “than the one imposed on a plaintiff in drafting an initial
complaint”).
Accordingly, “[t]he absence of detailed grounds setting forth
[a] basis for removal is not fatal to defendants’ right to remove.”
Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962). To invoke § 1442,
“the allegation that petitioners were officers acting under color of
office in the employment of the United States [is] sufficient.” Id. It is
enough “if the court is provided the facts from which its jurisdiction
can be determined.” Wright & Miller, supra, § 3733. 14 A petition may
14For that reason, a party’s failure “to make reference to an applicable
removal provision in [a] removal petition is not fatal … but instead is
merely a technical defect.” Mignogna v. Sair Aviation, Inc., 679 F. Supp. 184,
187 (N.D.N.Y. 1988); see also Jurist v. Long Island Power Auth., No. 19-CV-
3762, 2020 WL 1149750, at *7 n.9 (E.D.N.Y. Mar. 10, 2020) (“[F]ailure to
explicitly invoke section 1442(a)(1) in the Amended Notice of Removal does
not preclude the Court from finding removal proper under that section.”);
22
even “contain inconsistent allegations.” White v. Wellington, 627 F.2d
582, 587 (2d Cir. 1980).
Our court has stated that when “determining whether
jurisdiction is proper, we look only to the jurisdictional facts alleged
in the Notices of Removal.” In re MTBE Prods. Liab. Litig., 488 F.3d at
124. Because a case may be “properly removed … under 28 U.S.C.
§ 1442(a)(1)” even though a party “failed to do so according to the
timeliness provisions of § 1446(b),” we need only decide whether
Razmzan alleged the “three necessary elements for removal under
§ 1442(a)(1).” Pantalone, 576 F. Supp. 2d at 329, 334-35. 15 “To invoke
[§ 1442], a defendant who is not himself a federal officer must [allege]
that (1) the defendant is a ‘person’ under the statute, (2) the defendant
acted ‘under color of federal office,’ and (3) the defendant has a
‘colorable federal defense.’” Crane Co., 771 F.3d at 115 (quoting
Isaacson, 517 F.3d at 135). Razmzan meets these requirements.
First, Razmzan alleged that he was a “person.” See Notice of
Removal ¶¶ 1-2, 28, Supp. App’x 1-2, 8-9 (“Defendant Dr. Shahram
Razmzan is, and at all times relevant to this action was, a physician
licensed by the State of New York to practice obstetrics and
Harlem River Produce Co. v. Aetna Cas. & Sur. Co., 257 F. Supp. 160, 164
(S.D.N.Y. 1965) (same).
15 “[A]ll of the circuit courts that have considered the question have
concluded that a district court is prohibited from remanding a case sua
sponte based on a procedural defect absent a motion to do so from a party.”
Ellenburg, 519 F.3d at 198. Moreover, remand based “on a defect in removal
procedure—such as the untimeliness of removal—must be effected ‘within
30 days after the filing of the notice of removal.’” Cassara v. Ralston, 832
F. Supp. 752, 753 (S.D.N.Y. 1993). No party moved for remand during the
thirty-day period following Razmzan’s notice of removal. See infra Part I.C.
23
gynecology.”). Second, he alleged that he acted “under color of
federal office.” See Notice of Removal ¶¶ 2, 37-40, Supp. App’x 2, 11-
12 (“As an employee of HRHCare, Dr. Razmzan is deemed to be a
federal PHS employee and immune from civil actions arising out of
the performance of his medical, surgical, or related functions within
the scope of his employment with HRHCare.”). Third, he alleged a
“colorable federal defense.” See Notice of Removal ¶¶ 4-6, 22-23, 39-
40, Supp. App’x 2-3, 7-8, 11-12 (“Section 233(a) extends absolute
immunity to PHS personnel by making the remedy against the United
States under the FTCA the exclusive remedy for such actions.”).
Finally, he explicitly invoked 28 U.S.C. § 1442(a)(1) as a ground for
removal. See Notice of Removal ¶ 47, Supp. App’x 14 (“Pursuant to
42 U.S.C. § 233(l)(2), 28 U.S.C. § 2679(d)(3), and 28 U.S.C. § 1442(a)(1),
Dr. Razmzan is authorized to, and hereby does, remove to this Court
the civil action.”). Under the pleading standards for a notice of
removal, these allegations are sufficient.
C
Finally, the government argues that even if Razmzan qualified
for removal under § 1442 and adequately pleaded grounds for
removal under that statute in his notice of removal, his removal under
§ 1442 would be procedurally defective because of the timing
requirements of 28 U.S.C. § 1446. Generally, the “notice of removal of
a civil action or proceeding shall be filed within 30 days after the
receipt by the defendant … of a copy of the initial pleading.” 28 U.S.C.
§ 1446(b). Here, Agyin’s complaint was filed on February 25, 2016.
Verified Compl., Supp. App’x 41. Razmzan, however, did not file the
notice of removal until June 21, 2017. Notice of Removal, Supp. App’x
14.
24
But that deadline does not end our analysis. The thirty-day time
limitation “is ‘merely a formal and modal requirement and is not
jurisdictional.’” Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1046 (2d Cir.
1991) (quoting Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th
Cir. 1980)). Therefore, if an opposing party does not object to an
untimely notice of removal by timely filing a motion to remand, the
objection is waived. See id.; Leininger v. Leininger, 705 F.2d 727, 729 (5th
Cir. 1983) (“[T]he time limitation for removal is not jurisdictional; it is
merely modal and formal and may be waived.”). 16
The motion to remand must be filed within thirty days of the
filing of the notice of removal. See 28 U.S.C. § 1447(c) (“A motion to
16 See also Connecticut v. Williams, No. 3:17-CV-02023, 2018 WL 1532608, at
*4 n.5 (D. Conn. Mar. 29, 2018) (“The thirty-day deadline for filing is
waivable and does not affect whether the Court has subject matter
jurisdiction. … ‘Although the time limit is mandatory and a timely objection
to a late petition will defeat removal, a party may waive the defect or be
estopped from objecting to the untimeliness by sitting on his rights.’”)
(quoting Fristoe, 615 F.2d at 1212); Bedminster Fin. Grp. v. Umami Sustainable
Seafood, Inc., No. 12-CV-5557, 2013 WL 1234958, at *2 (S.D.N.Y. Mar. 26,
2013) (“It is ‘well-established that the time limitation for removal and/or
joinder of all defendants is not jurisdictional, and may be waived’ by
plaintiffs.”); Zerafa v. Montefiore Hosp. Hous. Co., 403 F. Supp. 2d 320, 328
(S.D.N.Y. 2005) (“[C]ourts have determined that § 1446(b)’s … time
limitation is procedural; therefore, plaintiff must move for remand within
thirty days of removal or the untimeliness of removal is waived.”); Legal
Aid Soc’y v. City of New York, No. 97-CV-7566, 1998 WL 689950, at *1
(S.D.N.Y. Sept. 30, 1998) (“Because the time limit is not jurisdictional, it may
be extended in light of evidence of waiver or estoppel on the part of the
plaintiff.”); Hartford Ins. Co. v. Compania Dominicana de Aviacion, No. 90-CV-
0622, 1990 WL 198744, at *3 (E.D.N.Y. Nov. 19, 1990) (“The thirty day
requirement in § 1446(b) is not jurisdictional. Moreover, failure to challenge
a non-jurisdictional defect in a removal petition can amount to a waiver.”)
(internal citations omitted).
25
remand the case on the basis of any defect other than the lack of
subject matter jurisdiction must be made within 30 days after the
filing of the notice of removal under section 1446(a).”); Zerafa, 403
F. Supp. 2d at 328 (“[P]laintiff must move for remand within thirty
days of removal or the untimeliness of removal is waived.”). In this
case, no party filed such a motion or otherwise objected to the
timeliness of Razmzan’s removal—until oral argument in this case,
two and a half years after the notice of removal was filed.
Accordingly, even if Razmzan’s removal under § 1442 was
untimely, any objection to that untimeliness has been waived. See
Leininger, 705 F.2d at 729 (“It is undisputed that the suit was not
timely removed. … At no time has either party moved to remand ….
Thus the parties have waived the time limitation for removal.”).
D
Because Razmzan properly removed this case from state court
under 28 U.S.C. § 1442 and the procedural defects the government has
identified in that removal notice do not alter our jurisdiction, we may
address the merits of this appeal. 17
The government suggests that we may review the remand
order “only to the extent it addresses the removal bases explicitly
excepted from § 1447(d)—in this case, removal under 28 U.S.C.
17The government filed notices of supplemental authority identifying K.C.
ex rel. Dunmore v. Khalifa, 816 F. App’x 111 (9th Cir. 2020), and Thomas v.
Phoebe Putney Health Sys., Inc., 972 F.3d 1195 (11th Cir. 2020), for the
proposition that 28 U.S.C. § 1447(d) bars appellate review of remand orders
in cases removed under 42 U.S.C. § 233. But, as explained in Parts I.A. and
I.B., Razmzan removed this case under 28 U.S.C. § 1442, thus qualifying for
an exception from § 1447(d)’s bar. Accordingly, Khalifa and Thomas do not
affect our analysis in this case.
26
§ 1442.” Letter from Audrey Strauss, Acting U.S. Att’y for the
S.D.N.Y., to Catherine O’Hagan Wolfe, Clerk of Ct. (July 16, 2020),
ECF No. 140 (quoting Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.)
Inc., 965 F.3d 792, 819 (10th Cir. 2020)). In Suncor Energy, however, the
Tenth Circuit determined that the appellant had not properly
removed the case under § 1442. 965 F.3d at 819-27. The court then
concluded that because removal under § 1442 was not proper, it did
not have appellate jurisdiction to review the district court’s dismissal
of the appellant’s other theories of removal (which were not
independently reviewable under § 1447(d)). Id. at 819.
The Tenth Circuit cited our decision in State Farm Mutual Auto
Insurance Co. v. Baasch, 644 F.2d 94, 97 (2d Cir. 1981), among other
cases, for this proposition. Id. at 802. In Baasch, we dismissed an
appeal because the case had not been properly removed under either
§ 1442 or § 1443. 18 Neither Suncor nor Baasch addresses the question
in this case: whether, after we conclude that removal under § 1442
was proper, we may proceed to review the rest of the district court’s
remand order dealing with subjects other than an alternative theory
of removal. In each of those cases, the court rejected the defendant’s
§ 1442 or § 1443 removal arguments. See Suncor, 965 F.3d at 827
(“ExxonMobil failed to establish proper grounds for federal officer
removal.”); Baasch, 644 F.2d at 97 (“Baasch’s case does not come near
18 We note that the issue in Suncor is pending before the Supreme Court in
BP P.L.C. v. Mayor & City Council of Balt. (No. 19-1189). The government in
that case has argued that under § 1447(d) “[t]he entire ‘order’ remanding
th[e] case—and not just certain parts of the reasoning supporting the
remand—is … ‘reviewable by appeal.’” Br. for the U.S. as Amicus Curiae
Supporting Petr’rs at 8, BP P.L.C. v. Mayor & City Council of Balt., 2020 WL
5847132 (2020) (No. 19-1189) (quoting 28 U.S.C. § 1447(d)).
27
to meeting the Supreme Court’s limited criteria for invoking the civil
rights removal statute.”); see also Mayor & City Council of Balt. v. BP
P.L.C., 952 F.3d 452, 468 (4th Cir. 2020) (“[T]he relationship between
Baltimore’s claims and any federal authority over a portion of certain
Defendants’ production and sale of fossil fuel products is too tenuous
to support removal under § 1442.”).
Here, by contrast, Razmzan was entitled to remove the case
under § 1442. Section 1447(d) permits us to review “an order
remanding a case to the State court from which it was removed
pursuant to section 1442.” Thus, we may review the merits of
Razmzan’s appeal of the district court’s order. 19
II
Razmzan is entitled to immunity from suit and to substitution
of the United States as the defendant if this suit concerns actions he
took within the scope of his employment as a deemed federal
employee. See 42 U.S.C. § 233(a). Under § 233, the remedy for personal
injury resulting from medical malpractice by a deemed employee
acting within the scope of his employment is set out by 28 U.S.C.
§ 1346(b), the FTCA. The parties agree that under the FTCA, New
York law governs the scope-of-employment analysis. They also agree
that New York law prescribes a fact-dependent multi-factor inquiry
19 The government argues that the Supreme Court’s decision in Powerex
Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007), along with the district
court’s conclusion that it lacked subject matter jurisdiction over this case,
precludes the exercise of appellate jurisdiction. But the government’s
reliance on Powerex is inapposite because Powerex was decided before
§ 1447(d) was amended to exclude from its jurisdictional bar cases
“removed pursuant to section 1442.” See Removal Clarification Act of 2011,
Pub. L. No. 112-51, 125 Stat. 545 (2011).
28
for determining whether an act was performed within an employee’s
scope of employment. Razmzan argues that under New York law, the
medical services he provided with respect to the delivery were within
the scope of his employment even though he billed for his services
privately. The government disagrees, arguing that because Razmzan
billed for his services privately, his actions did not benefit HRHCare
and he acted outside the scope of his employment. The district court
agreed with the government, in part based on its reading of 42 C.F.R.
§ 6.6 and the FTCA Manual’s policy on alternative billing
arrangements. Yet neither 42 C.F.R. § 6.6 nor the FTCA Manual
purports to alter New York’s scope-of-employment analysis. Indeed,
neither the regulation nor the manual would be able to alter the
application of that state-law test. Razmzan is correct that he provided
delivery services within the scope of his employment under New
York law.
A
Under the FSHCAA, deemed PHS employees are entitled to
immunity under 42 U.S.C. § 233(a). That section provides that the
exclusive remedy for damage for personal injury resulting from
medical malpractice is prescribed by the FTCA. Under the FTCA, the
“law of the place” governs the scope-of-employment analysis. See 28
U.S.C. § 1346(b)(1); Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016).
The “law of the place” here is New York law because the relevant
conduct took place in New York. See id.; Taber v. Maine, 67 F.3d 1029,
1033 (2d Cir. 1995). Under New York law, “an employee acts within
the scope of his employment when (1) the employer is, or could be,
exercising some control, directly or indirectly, over the employee’s
activities, and (2) the employee is doing something in furtherance of
the duties he owes to his employer.” Fountain, 838 F.3d at 135 (internal
29
quotation marks and alteration omitted). To determine whether “the
employee is doing something in furtherance of the duties he owes to
his employer”:
we must consider (1) the connection between the time,
place and occasion for the act; (2) the history of the
relationship between the employer and employee as
spelled out in actual practice; (3) whether the act is one
commonly done by such an employee; (4) the extent of
departure from normal methods of performance; and
(5) whether the specific act was one that the employer
could reasonably have anticipated.
Sharkey v. Lasmo (AUL Ltd.), 992 F. Supp. 321, 329 (S.D.N.Y. 1998)
(citing Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979)). An employee
must also act at least “in part to benefit the employer.” Id.We conclude that Razmzan was acting within the scope of his
employment when he performed the delivery services. Razmzan was
fulfilling his contractual duties to HRHCare—pursuant to a contract
that HRHCare designed for its own benefit—and HRHCare benefited
from his private billing by being able to retain an experienced
OB/GYN and to secure inpatient treatment for its patients. App’x 66-
67. He delivered Agyin’s twins “as a result of his employment
contract with HRHCare,” Supp. App’x 11, the day after he treated her
at one of HRHCare’s clinical locations. His private billing was
anticipated by HRHCare in that contract; as the district court
explained, HRHCare “agreed on an employment contract that would
compensate him … indirectly for the inpatient services he rendered
to the center’s patients.” App’x 66. In fact, Razmzan maintained a
separate billing account specifically for inpatient services provided to
HRHCare patients at a hospital. Supp. App’x 10.
30
Moreover, the district court noted that “this arrangement was
designed to benefit HRH[Care] by shifting the risk of not having
sufficient volume of inpatient services to support the fixed salary that
HRH[Care] would have … had to pay to secure the doctor’s inpatient
services for its patients.” App’x 67. Therefore, “[i]t was in HRHCare’s
interest and benefit to assign Dr. Razmzan the rights to revenue for
inpatient services rather than having to pay a fixed salary with the
risk that it would either overpay or underpay Dr. Razmzan for
inpatient services.” Id. Because Razmzan was acting in furtherance of
the duties he owed HRHCare when he provided delivery services at
the hospital and billed privately, and because he acted at least in part
to benefit HRHCare, he acted within the scope of his employment
under New York law.
B
The district court rejected this conclusion, in part, based on its
reading of four cases: Delgado v. Our Lady of Mercy Med. Ctr., No. 06-
CV-5261, 2007 WL 2994446, at *3 (S.D.N.Y. Oct. 12, 2007), Rosenblatt v.
St. John’s Episcopal Hosp., No. 11-CV-1106, 2012 WL 294518, at *3
(E.D.N.Y. Jan. 31, 2012), Miller v. Toatley, 137 F. Supp. 2d 724, 726
(W.D. La. 2000), and Lacey-Echols ex rel. Lacey v. Murphy, No. 02-CV-
2281, 2003 WL 23571269, at *3 (D.N.J. Dec. 17, 2003). Each case
addresses scope-of-employment determinations for doctors who
treated patients at a hospital, like Razmzan did here. Even accepting
these cases as persuasive authority, none requires the conclusion that
Razmzan acted outside the scope of his employment.
In Lacey-Echols, the court held that a doctor acted outside the
scope of his employment when he “directly billed and accepted fees”
from hospitalized patients. 2003 WL 23571269, at *3. Unlike Razmzan,
31
the doctor in Lacey-Echols did not have a written employment contract
that would permit the court to conclude that he was treating patients
within “the scope of his employment at [the center] … rather than [as]
a physician in private practice.” Id. at *2, *8. Similarly, in Miller, the
court denied immunity to a doctor whose contract required
“[p]ayment for care [to] be billed through [the center]” but who billed
for services privately. 137 F. Supp. 2d at 726. Unlike that doctor, who
violated his contract by billing privately for hospital services,
Razmzan adhered to his contract by billing privately for the hospital
services in this case.
Neither Rosenblatt nor Delgado involved doctors who billed
privately for hospital services. See Rosenblatt, 2012 WL 294518, at *3
(“[F]or her treatment of Monzon, Dr. Rahman only received the
regular compensation she gets from the Center.”); Delgado, 2007 WL
2994446, at *3 (“Yara was not compensated for the treatment he
provided Delgado apart from the regular compensation he receives
as an employee of Soundview.”). In these cases, the scope-of-
employment determination turned on the employment relationship
between the community health center and the doctor. See Rosenblatt,
2012 WL 294518, at *3, *6-8; Delgado, 2007 WL 2994446, at *3. Because
neither case involved a doctor who billed privately for hospital
services, neither case stands for the proposition that a doctor
necessarily acts outside the scope of his or her employment by billing
privately. Accordingly, the cases on which the district court relied do
not justify a departure from New York law regarding Razmzan’s
scope of employment.
32
C
Neither 42 C.F.R. § 6.6 nor the FTCA Manual undermine this
result. Section 6.6 states that “[w]ith respect to covered individuals,
only acts or omissions within the scope of their employment … are
covered.” 42 C.F.R. § 6.6(c); see also id. § 6.6(d) (“Only acts and
omissions related to the grant-supported activity of entities are
covered.”). The regulation therefore restates the proposition that the
FSHCAA provides immunity only for conduct undertaken within the
scope of the defendant’s employment. See 42 U.S.C. § 233(a), (g). As
explained above, Razmzan’s provision of delivery services was
within the scope of his employment at HRHCare and in furtherance
of HRHCare’s grant-supported activities. Accordingly, 42 C.F.R. § 6.6does not alter our conclusion with respect to the scope-of-
employment analysis.
The FTCA Manual may suggest a different conclusion. See
FTCA Manual, supra note 1, at 13 (“FTCA coverage will apply to the
provider … as long as … [t]he funds received by the provider … are
transferred directly to the health center.”). But to the extent the FTCA
Manual attempts to alter the scope-of-employment analysis, it is not
entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944).
A guidance document such as the FTCA Manual is entitled to
deference depending “upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which give it power
to persuade.” Skidmore, 323 U.S. at 140; see Estate of Landers v. Leavitt,
545 F.3d 98, 107 (2d Cir. 2008). “Yet even under this approach, courts
will not rely on agency interpretations that are inconsistent with
unambiguous statutory language.” Catskill Mountains Chapter of Trout
Unlimited, Inc. v. EPA, 846 F.3d 492, 510 (2d Cir. 2017). The FTCA is
33
unambiguous that Razmzan’s scope of employment is to be
determined by New York law. 28 U.S.C. § 1346(b)(1); see also Fountain,
838 F.3d at 135. A guidance document published by HHS cannot alter
that unambiguous directive. Accordingly, we look to New York law
to determine whether Razmzan acted within the scope of his
employment.
A federal agency may receive deference with respect to the
interpretation of a federal statute it administers. See United States v.
Mead Corp., 533 U.S. 218, 227-28 (2001). New York’s law regarding the
scope of employment is not such a statute, and therefore the FTCA
Manual could not alter how a court applies that law even if it
attempted to do so. For these reasons, we do not defer to the FTCA
Manual either with respect to the application of § 1346 or with respect
to the application of New York law on the scope of employment.
CONCLUSION
For these reasons, we REVERSE the district court’s order in
part and REMAND for further proceedings consistent with this
opinion. 20
20Because we reverse the relevant portion of the district court’s remand
order, we do not address Razmzan’s arguments about the district court’s
denial of his motion for reconsideration.
34