Sam Friedenberg v. Lane County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM FRIEDENBERG, personal No. 21-35078
representative of the estate of Marc
Sanford; DEREK LARWICK, D.C. No.
personal representative of the estate of 6:18-cv-00177-
Richard Bates; LORRE SANFORD, MK
an individual,
Plaintiffs-Appellees, OPINION
v.
LANE COUNTY; LANE COUNTY
MENTAL HEALTH, AKA Lane
County Behavioral Health; CARLA
AYRES; ERIK MORRIS; FRANCES
FREUND; JULIE RIUTZEL,
Defendants-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
2 FRIEDENBERG V. LANE COUNTY
Argued and Submitted February 9, 2022
Portland, Oregon
Filed May 19, 2023
Before: Richard A. Paez and Jacqueline H. Nguyen,
Circuit Judges, and John R. Tunheim,* District Judge.
Opinion by Judge Paez;
Dissent by Judge Nguyen
SUMMARY**
Federal Immunity / Removal
The panel reversed the district court’s order remanding
to state court Plaintiffs’ action alleging negligence and
wrongful death claims against federally funded community
health centers and their employees (“Defendants”), and
remanded to the district court to enter an order substituting
the United States as the defendant and deeming the action as
one brought under the Federal Tort Claims Act.
The Federally Supported Health Centers Assistance Act
(“FSHCAA”) provides that health centers receiving funding
under § 330 of the Public Health Service Act (“PHSA”) may
*
The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRIEDENBERG V. LANE COUNTY 3
be deemed Public Health Service (“PHS”) employees. PHS
employees are granted immunity from certain claims arising
out of their performance of “medical, surgical, dental or
related functions.” 42 U.S.C. § 233(a). Plaintiffs alleged
that Defendants violated their duty to report a court-ordered
Lane County Mental Health patient’s refusal to comply with
the terms of his probation. Plaintiffs alleged they were
injured as a result of Defendants’ failure to report a patient’s
repeated failures to comply with his mental health treatment
plan. Defendants contended that they were entitled to § 233
immunity. The district court held that § 233 immunity did
not apply to Defendants and remanded to state court.
The panel first addressed whether there was jurisdiction
to review the district court’s remand order. Ordinarily, a
remand order is not reviewable on appeal, except for cases
removed pursuant to 28 U.S.C. § 1442. The parties
disagreed about whether Defendants removed the case under
§ 1442. As a threshold matter, the panel held that plaintiffs
waived their objection to the timeliness of Defendants’
removal by failing to properly raise it in district court. Next,
the panel held that the United States’ argument that this case
was never removed pursuant to § 1442 failed. The notice of
removal did not cite only to § 233 as a basis for removal
jurisdiction. The notice of removal set forth additional
grounds by referencing, among other statutes, § 1442 as a
basis for federal question jurisdiction. The panel held that
Defendants’ notice of removal contained sufficient facts to
invoke § 1442 as a basis of removal. The district court’s
entire order is reviewable on appeal, and there is jurisdiction
to review the district court’s remand order.
Next, the panel turned to whether § 233 immunity
applied in this case. Congress extended the immunity
protection provided to actual PHS employees in § 233(a) to
4 FRIEDENBERG V. LANE COUNTY
“deemed” PHS employees under § 233(g). The parties did
not dispute that Defendants were deemed PHS employees
during the relevant period. The panel agreed with
Defendants that § 233 immunity did not turn on who brings
the claim, but rather on whether the conduct giving rose to
the claim arose out of the Defendants’ performance of
“medical, surgical, dental or related functions.” Nothing in
§ 233(g)(1)(B) limits immunity protection to a particular
class of plaintiffs; rather, the statute contemplates the types
of actions for which deemed PHS employees are
covered. To the extent the district court ruled that § 233 did
not apply in this case because Plaintiffs were not “patients,”
that was legal error. The panel also held that Plaintiffs’
argument that deemed employees receive limited protection
under § 233 lacked merit. The panel rejected Plaintiffs’
contention that § 233 was enacted only to cover medical
malpractice claims. Section 233(a) plainly encompasses
damages stemming from the performance of medical and
“related” functions.
The panel next considered whether § 233 immunity
applied in this case. The panel held that Defendants’ failure
to report the patient’s violations of his treatment plan to the
municipal court was a “related function” under § 233(a).
Any duty that the Defendants had to report the patient’s
violations and potential threat to the public was tied to their
status as medical health professionals. The panel concluded
that that the tortious conduct in this case qualified as a
“related function” under § 233(a).
Finally, the parties contested whether Defendants’
tortious conduct fell outside of their § 330 grant
activities. The panel rejected Plaintiffs’ argument that the
tortious conduct in this case did not relate to Defendants’
grant-supported activity because Lane County never
FRIEDENBERG V. LANE COUNTY 5
mentioned the “Jail Diversion Program” in its grant
application. An applicant need not identify the specific
names of the programs that will refer patients to the applicant
health centers. The panel also rejected Plaintiffs’ argument
that the Jail Diversions Program was state funded and thus
fell outside of the grant’s scope. Accordingly, Defendants’
tortious conduct fell within the scope of their § 330 grant.
The panel concluded that because the Defendants met the
qualifications set forth in § 233(a), they were entitled to
immunity in this case.
The panel reversed the district court’s order remanding
the case to state court, and remanded to the district court to
enter an order substituting the United States as the defendant
and deeming the action as one brought under the Federal
Tort Claims Act.
Judge Nguyen dissented because in her view this Court
lacks jurisdiction over the appeal. She wrote that a fair
reading of the notice of removal here showed that the Lane
County defendants never asserted their intention to remove
this case under § 1442. She would dismiss the appeal for
lack of jurisdiction.
COUNSEL
Matthew S. Freedus (argued) and Rosie Dawn Griffin,
Feldesman Tucker Leifer Fidell LLP, Washington, D.C.;
Stephen E. Dingle, Lane County Office of County Counsel,
Eugene, Oregon; for Defendants-Appellants.
Travis S. Eiva (argued), Eiva Law, Eugene, Oregon, for
Plaintiffs-Appellees Sam Friedenberg, Derek Larwick, and
Lorre Sanford.
6 FRIEDENBERG V. LANE COUNTY
Kevin B. Soter (argued), Mark B. Stern, and Dana
Kaersvang, Appellate Staff Attorneys; Scott Erik Asphaug,
Acting United States Attorney; Brian M. Boynton, Acting
Assistant Attorney General; United States Department of
Justice; Washington, D.C.; Kevin C. Danielson, Assistant
United States Attorney; Office of the United States Attorney;
Portland, Oregon; for Defendant-Appellee United States of
America.
OPINION
PAEZ, Circuit Judge:
This case concerns the scope of immunity granted to
federally funded community health centers and their
employees when they are deemed Public Health Service
(“PHS”) employees under the Federally Supported Health
Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233 (“§
233”).
The FSHCAA provides that health centers that receive
funding under § 330 of the Public Health Service Act
(“PHSA”), 42 U.S.C. § 254b (“§ 330”), may be deemed PHS
employees. 42 U.S.C. § 233(g). PHS employees are granted
immunity from certain claims arising out of their
performance of “medical, surgical, dental or related
functions.” 42 U.S.C. § 233(a). When § 233 immunity
applies, the United States is substituted as the defendant and
the action proceeds as one brought under the Federal Torts
Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680.
Defendants Lane County, Lane County Mental Health
(“LCMH”), and its employees, Carla Ayres, Erik Morris,
FRIEDENBERG V. LANE COUNTY 7
Frances Freund, and Julie Riutzel (collectively,
“Defendants”) contend that they are entitled to § 233
immunity in a state court tort action brought by Plaintiffs
Lorre Sanford and represented decedents (collectively,
“Plaintiffs”). In state court, Plaintiffs alleged negligence and
wrongful death claims against Defendants for violating their
duty to report a court-ordered LCMH patient’s refusal to
comply with the medical terms of his probation. Defendants
removed the case to federal court on the grounds that they
were immune from suit as “deemed” PHS employees. The
district court disagreed, reasoning that as “deemed” rather
than actual PHS employees, Defendants were not entitled to
§ 233 immunity because Plaintiffs were not LCMH
“patients” when they suffered injuries.
We disagree. Section 233 immunity does not turn on
who brings the claim, and neither does it require that the
alleged tort occur during the provision of services. Rather,
§ 233 immunity depends on whether the claim arose out of
the defendant’s performance of “medical, surgical, dental, or
related functions.” 42 U.S.C. § 233(a). Because we hold
that Defendants’ conduct qualifies as a “related” function
under § 233, we reverse the district court’s remand order and
direct the district court, on remand, to substitute the United
States as the defendant. Id.
There is a preliminary jurisdictional issue that we must
address before reaching the merits of Defendants’ appeal.
Defendants appeal the district court’s order remanding this
case to the Lane County Circuit Court, where it was
originally filed. Ordinarily, a remand order is not reviewable
on appeal. There is an exception, however, for cases
removed pursuant to 28 U.S.C. § 1442 (“§ 1442). See 28
U.S.C. § 1447(d) (“§ 1447(d)”). Because this case was
removed, in part, under § 1442, the district court’s remand
8 FRIEDENBERG V. LANE COUNTY
order is reviewable on appeal. BP P.L.C. v. Mayor of
Baltimore, 141 S. Ct. 1532, 1538 (2021). We therefore have
jurisdiction to address the merits of Defendants’ appeal.
I.
In March 2015, Michael Bryant (“Bryant”) was
convicted of criminal mischief and criminal trespass in the
Springfield City Municipal Court in Oregon. Bryant suffers
from schizophrenia and bipolar disorder with serious
symptoms of psychosis. The court, as a condition of his
probation, referred Bryant to a Jail Diversion Program in
Lane County, Oregon, which allows mentally ill persons
convicted of crimes to avoid incarceration if they comply
with a mental health treatment plan. The court ordered
Bryant to report to LCMH for treatment and to “follow all
directives of LCMH.”
Lane County receives PHSA § 330 grant funding to
provide primary care and related services to medically
underserved populations. Lane County administers the §
330 grant project through its Community Health Centers
division. That division provides various health services to
the community, including psychiatric and mental health
services. LCMH is one of several service-delivery sites
within Lane County’s grant project.
In June 2014, the U.S. Department of Health and Human
Services (“HHS”) issued a formal notice deeming Lane
County, its health centers, and health center employees—
including LCMH and its employees—as PHS employees
under FSHCAA § 233 for calendar year 2015. The notice
states that, for any action based on acts or omissions that
occurred during calendar year 2015, LCMH and its
employees have “liability protection . . . for damage for
personal injury, including death, resulting from the
FRIEDENBERG V. LANE COUNTY 9
performance of medical . . . or related functions . . . while
acting within the scope of such employment.”
In March 2015, Bryant started his treatment with LCMH
as required by the court’s order. Plaintiffs allege, however,
that from roughly March 2015 to November 2015, Bryant
repeatedly violated his probation by refusing to take his
prescribed medication and missing medical appointments
without reason. Plaintiffs contend that despite Bryant’s
repeated failures to comply with his treatment plan, no one
at LCMH reported his violations to the court.
On November 15, 2015, Bryant had a psychotic
breakdown, attacked his parents with a baseball bat, killed
his father, and seriously injured his mother. Bryant also
killed the family dog and set the family home on fire. Bryant
then took the family’s SUV and drove to Springfield,
Oregon, where he ran over and killed pedestrian Richard
Bates. After killing Bates, Bryant drove to Eugene, Oregon,
where he ran over pedestrians Lorre and Marc Sanford.
Marc Sanford died from his injuries and Lorre Sanford was
severely injured.
In November 2017, Plaintiffs filed this action in the Lane
County Circuit Court against Defendants. Plaintiffs alleged
multiple claims of negligence and wrongful death, arguing
that they were injured as a result of Defendants’ failure to
report Bryant’s repeated probation violations to the court,
which would have caused the court to incarcerate him.
Defendants removed the case to federal court. They
argued that the United States should be substituted as the
defendant and the action should be treated as one brought
under the FTCA because all Defendants were deemed PHS
employees. Among other grounds for removal, Defendants
cited § 233 as a basis for removal, which allows a health
10 FRIEDENBERG V. LANE COUNTY
center to remove a case when the United States fails to
inform the state court whether the FTCA remedy is
available. 42 U.S.C. § 233(l)(2) (establishing that if an
action qualifying for immunity under § 233 is filed in state
court, the “proceeding shall be removed to the appropriate
United States district court”).1
Plaintiffs moved to remand, arguing that the district
court lacked jurisdiction. The magistrate judge determined
that federal jurisdiction existed to hold a § 233 hearing.2
After holding the § 233 hearing, the magistrate judge
concluded that § 233 immunity did not apply to Defendants
and recommended that the action be remanded to state court.
The magistrate judge reasoned that § 233 immunity for
“deemed” PHS employees only extends to claims brought by
“patients” of a community health center or non-patients who
received direct services as approved under the statute. The
district court adopted the recommendation and ordered the
case remanded to state court.
Defendants requested a stay of the remand order pending
appeal on the ground that the case was removed, in part,
pursuant to the federal officer removal statute, § 1442. In
response, Plaintiffs argued for the first time that the case was
not removed pursuant to § 1442, and that even if § 1442 was
1
Section 233 provides that upon removal predicated on § 233(l)(2), “the
action shall be stayed . . . until such court conducts a hearing, and makes
a determination, as to the appropriate forum or procedure for the
assertion of the claim for damages . . . and issues an order consistent with
that determination.” 42 U.S.C. § 233(l)(2).
2
The United States (“United States” or “Government”) declined to
intervene or substitute as a defendant because it determined that § 233
immunity did not apply to Defendants’ alleged actions. Nonetheless, it
appeared in this case as an interested party under 28 U.S.C. § 517.
FRIEDENBERG V. LANE COUNTY 11
the basis for removal, Defendants’ motion to remand was
untimely.
The district court granted the stay, recognizing that the
Supreme Court’s then looming decision in BP P.L.C. could
impact whether the court’s remand order is reviewable on
appeal. See 141 S. Ct. 222 (2020), cert. granted.
Defendants’ appeal followed.
II.
We review de novo whether the district court’s basis for
remand is reviewable on appeal. Atl. Nat’l Tr. LLC v. Mt.
Hawley Ins. Co., 621 F.3d 931, 938 (9th Cir. 2010) (citation
omitted). If appellate jurisdiction exists, we review de novo
the district court’s remand order for lack of subject-matter
jurisdiction. Lively v. Wild Oats Mkts., Inc., 456 F.3d 933,
938 (9th Cir. 2006) (citations omitted). The district court’s
denial of absolute immunity is also reviewed de novo. Slater
v. Clark, 700 F.3d 1200, 1203 (9th Cir. 2012) (citing Lacey
v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en
banc)).
III.
We first address whether we have jurisdiction to review
the district court’s remand order. Ordinarily, a district
court’s remand order is not reviewable on appeal. See 28
U.S.C. § 1447(d). There is an exception, however, for cases
removed pursuant to § 1442. See id. (“[A]n 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.”). Section 1442 permits “[f]ederal
officers, and their agents, [to] remove cases based on acts
performed under color of their federal office if they assert a
colorable federal defense[.]” Durham v. Lockheed Martin
12 FRIEDENBERG V. LANE COUNTY
Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citing 28 U.S.C.
§ 1442(a)(1)).
We previously interpreted § 1447(d) to mean that we
may only review the part of the district court’s remand order
that was based on the court’s § 1442 analysis. See County of
San Mateo v. Chevron Corp., 960 F.3d 586, 598 (9th Cir.
2020), cert. granted, judgment vacated sub nom. Chevron
Corp. v. San Mateo County, 141 S. Ct. 2666 (2021). The
Supreme Court has since clarified that when a case is
removed pursuant to § 1442, the whole of the district court’s
order is reviewable on appeal. See BP P.L.C., 141 S. Ct. at
1538. Accordingly, “courts of appeals have jurisdiction to
review a remand order in its entirety so long as the case was
removed under [§] 1442.” Dietrich v. Boeing Co., 14 F.4th
1089, 1093 (9th Cir. 2021) (citation omitted).
The parties disagree about whether Defendants removed
the case under § 1442. Plaintiffs contend that Defendants
filed an untimely notice of removal and therefore did not
properly remove the case under § 1442. The United States
contends that even if the removal was timely, Defendants did
not invoke § 1442 as a basis for removal because, among
other reasons, § 1442 was only referenced three times in the
notice of removal as a comparative statute to § 233.
Defendants contend that even though they focused their
removal strategy on § 233, they also cited § 1442 as an
alternative basis for removal which is sufficient for
establishing federal appellate jurisdiction. We agree with
Defendants.
A.
As a threshold matter, Plaintiffs waived their objection
to the timeliness of Defendants’ removal by failing to
properly raise it in district court.
FRIEDENBERG V. LANE COUNTY 13
A district court may only remand a case to state court for
procedural defects “upon a timely motion to remand.” Smith
v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014) (citing 28
U.S.C. § 1447(c)). If a plaintiff objects to removal for a
defendant’s failure to meet the removal deadline, he must do
so in a timely motion to remand. See 28 U.S.C. § 1447(c)
(“A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal . . .
.”). As we explained in Smith, “the [thirty-day] statutory
time limit for removal petitions is merely a formal and modal
requirement and is not jurisdictional.” See 761 F.3d at 1045(citation and internal quotation marks omitted). Thus,
“[a]lthough the time limit [to remove a case] is mandatory
and a timely objection to a late petition will defeat removal,
a party may waive the defect . . . by sitting on his rights.” Id.(citations and internal quotation marks omitted). That is
what Plaintiffs did here.
Plaintiffs failed to raise their timeliness objection within
the statutory 30-day deadline. See 28 U.S.C. § 1447(c).
Notably, although Plaintiffs filed a motion to remand, they
failed to object to the timeliness of Defendants’ removal
under § 1442. Accordingly, Plaintiffs waived their objection
to this procedural defect.
Nonetheless, Plaintiffs urge us to excuse their delay
because the objection was allegedly unripe when they filed
their motion to remand. They argue that the objection would
have been futile because the district court decided to hold a
§ 233(c) hearing, and thus, removal under § 1442 only
became relevant after the hearing. The statute, however,
clearly establishes that procedural objections become ripe
when a defendant files the notice of removal. There is
nothing in the relevant federal statutes, rules, or case law that
14 FRIEDENBERG V. LANE COUNTY
suggests a plaintiff may delay raising a timeliness objection
pending the outcome of a § 233(c) hearing. Moreover,
Plaintiffs could have raised a timeliness objection in their
initial motion to remand which they filed before the
magistrate judge decided to hold the § 233(c) hearing.
Plaintiffs’ decision to focus their motion on contesting the §
233(c) hearing does not alter this fact.3 Because Plaintiffs
failed to comply with the statutory requirements for
objecting to a procedural defect in Defendants’ notice of
removal, Plaintiffs’ timeliness arguments are waived.
B.
The United States’ argument that this case was never
removed pursuant to § 1442 also fails.
The Supreme Court stated in BP P.L.C. that a
defendant’s compliance with § 1446 is what effectuates
removal. See BP P.L.C., 141 S. Ct. at 1538. The Court
explained that “[t]o remove a case ‘pursuant to’ § 1442 or §
1443, then, just means that a defendant’s notice of removal
must assert the case is removable ‘in accordance with or by
3
Plaintiffs urge us to follow the district court’s reasoning in K.C. v. Cal.
Hosp. Med. Ctr, 2018 WL 5906057, at *6 (C.D. Cal. Nov. 8, 2018). We
decline to do so because 1) K.C. predates the Supreme Court’s decision
in BP P.L.C., and 2) the case does not support Plaintiffs’ argument. In
K.C., the plaintiff properly raised an timeliness objection to the
defendant’s removal under § 1442, and the district court remanded the
case, in part, because the removal was untimely. Id. We affirmed. K.
C. by & through Dunmore v. Khalifa, 816 F. App’x 111, 112–13 (9th
Cir. 2020), cert. denied sub nom. Afework v. Babbitt, 141 S. Ct. 2754
(2021), and vacated in part, 857 F. App’x 958 (9th Cir. 2021). Unlike
in K.C., Plaintiffs failed to raise their timeliness objection within the
statutory deadline. While K.C. is nonbinding authority, it does highlight
the fact that Plaintiffs could have made a timely objection despite the §
233(c) hearing. K.C. does not help Plaintiffs’ argument.
FRIEDENBERG V. LANE COUNTY 15
reason of’ one of those provisions.” Id. (citations omitted).
The Court further stated that a defendant does just that “by
citing § 1442 as one of its grounds for removal.” Id. “Once
that happened and the district court ordered the case
remanded to state court, the whole of its order became
reviewable on appeal.” Id.
Defendants argue that § 1442 is an alternative basis for
removal under the court’s federal question jurisdiction. The
notice of removal states:
The [district] [c]ourt has jurisdiction pursuant
to . . . 28 U.S.C. § 1442(a)(1) . . . to assess
whether the alleged acts or omissions in the
state action arose out of ‘the performance of
medical, surgical, dental or related functions’
within the scope of defendants’ deemed PHS
employment and, in turn, whether the United
States must be substituted as the only proper
defendant.
Plaintiffs do not take issue with Defendants’ reference to §
1442(a)(1) as a basis for removal.
The United States nevertheless contends that this case
“was removed solely pursuant to [§ 233].” It argues that: (1)
the notice of removal only states that the case is removable
under § 233; (2) the notice of removal only cites to § 1442
three times as a non-substantive comparative statute to §
233; (3) Defendants’ citation to § 1442 was conclusory; and
(4) Defendants’ post-removal litigation conduct confirms
the case was not removed pursuant to § 1442. We disagree
with these arguments.
16 FRIEDENBERG V. LANE COUNTY
As a threshold matter, the notice of removal does not
only cite to § 233 as a basis for removal jurisdiction. Indeed,
the United States’ argument to the contrary omits much of
the sentence on which it relies. That sentence states in broad
terms that “[p]ursuant to 42 U.S.C. § 233(l)(2), 28 U.S.C. §
2679(d)(3), and on the grounds set forth below, defendants .
. . respectfully remove [this case] to this Court.” The
sentence not only invokes § 233 as a basis for removal, but
it also invokes removal under the Westfall Act, 28 U.S.C. §
2679, a statute similar to § 233. Moreover, the
Government’s argument ignores the phrase “and on the
grounds set forth below.” The notice of removal proceeds to
set forth additional grounds by referencing, among other
statutes, § 1442 as a basis for federal question jurisdiction.
Even if this were the only reference to § 1442 in the
notice of removal, nothing in § 1442 or § 1443 states that the
removal notice must repeatedly cite all the statutory grounds
for removal or discuss each statute in detail to invoke it as a
basis for removal. It is common practice for defendants to
remove a case pursuant to multiple federal statutes. See BP
P.L.C., 141 S. Ct. at 1538 (recognizing that “a party may
assert multiple grounds for removing a case to federal
court”). According to BP P.L.C., a defendant removes a case
pursuant to a statute, such as § 1442, “by citing [the statute]
as one of its grounds for removal.” Id. That is what
Defendants did here.
The Government and dissent argue that Defendants’
reference to § 1442 was conclusory and therefore cannot
support removal. That argument is not persuasive as it fails
to engage with the appropriate standard. We must interpret
§ 1442 “broadly in favor of removal.” Durham, 445 F.3d at
1252. Notably, while removal under 28 U.S.C. § 1441 is to
be strictly construed, the federal officer removal statute is to
FRIEDENBERG V. LANE COUNTY 17
receive a generous interpretation. See id. (“We take from
this history a clear command from both Congress and the
Supreme Court that when federal officers and their agents
are seeking a federal forum, we are to interpret § 1442
broadly in favor of removal.”). And while it is true that a
defendant seeking to remove an action may not offer mere
legal conclusions, see Leite v. Crane Co., 749 F.3d 1117,
1122 (9th Cir. 2014) (citation omitted), “[t]he absence of
detailed grounds setting forth [a] basis for removal is not
fatal to defendants’ right to remove,” Agyin v. Razmzan, 986
F.3d 168, 181 (2d Cir. 2021) (citation and internal quotation
marks omitted). It is enough “if the court is provided the
facts from which its jurisdiction can be determined.” Id.(citations omitted); see also Leite, 749 F.3d at 1120–22
(reasoning that the defendant alleged facts satisfying each of
the requirements for federal officer removal to survive a
facial attack). Applying these principles, Defendants’ notice
of removal contains sufficient facts to invoke § 1442 as a
basis for removal.
To invoke § 1442, the removing party must allege in the
removal notice that “(1) it is a ‘person’ within the meaning
of the statute, (2) a causal nexus exists between plaintiffs’
claims and the actions [it] took pursuant to a federal officer’s
direction [i.e., it acted under color of federal office], and (3)
it has a ‘colorable’ federal defense to plaintiffs’ claims.”
Leite, 749 F.3d at 1120 (citation omitted); see also Agyin,
986 F.3d at 174 (citation omitted). The allegations in
Defendants’ notice of removal satisfy these requirements.
First, the individual Defendants allege that they are
“person[s].” 1 U.S.C. § 1 (“[T]he words ‘person’ and
‘whoever’ include corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as
well as individuals[.]”). The removal notice states that the
18 FRIEDENBERG V. LANE COUNTY
individual Defendants are comprised of an administrator and
mental health providers.
Second, Defendants allege that they acted under color of
federal office. As support for that allegation, the removal
notice states that LCMH’s employees are deemed “PHS
employees for purposes of the immunity afforded by 42
U.S.C. § 233(a)” and are “immune from any civil action or
proceeding arising out of the performance of [their] medical,
surgical, or related functions within the scope of [their]
employment with Lane County and LCMH.”
Third, Defendants allege a “colorable federal defense”
by stating that Defendants’ answer to Plaintiffs’ amended
complaint asserts their respective rights to absolute
immunity provided under the PHSA and FSHCAA.
Finally, Defendants specifically invoke § 1442(a)(1) as
a basis for removal under the court’s federal question
jurisdiction. The notice of removal states that “[t]he Court
has jurisdiction pursuant to . . . 28 U.S.C. § 1442(a)(1) . . . to
assess whether the alleged acts or omissions in the state
action arose out of ‘the performance of medical, surgical,
dental or related functions’ within the scope of defendants’
deemed PHS employment and, in turn, whether the United
States must be substituted as the only proper defendant.”
Under the pleading standards for removal, these allegations
are sufficient. See Leite, 749 F.3d at 1120–21.
Plaintiffs’ objection to Defendants’ focus on § 233 as a
basis for removal also lacks merit. The removal notice
sufficiently invokes § 1442 as an alternative basis for
removal even if that provision was not the linchpin of
Defendants’ removal strategy. Moreover, the inquiry here is
whether the notice of removal on its face sufficiently invokes
§ 1442 as a basis for removal jurisdiction. See id. at 1121.
FRIEDENBERG V. LANE COUNTY 19
When the notice of removal is read in the light most
favorable to Defendants as the removing parties, the
allegations are sufficient to put Plaintiffs on notice that §
1442 was an alternative ground for removal.
For purposes of determining whether a defendant
invoked § 1442 as a basis for removal, a defendant’s citation
to “§ 1442 as one of its grounds for removal” is sufficient
under Supreme Court authority. BP P.L.C., 141 S. Ct. at
1538. Because Defendants did that here, the district court’s
entire order is reviewable on appeal. We therefore have
jurisdiction to review the district court’s remand order.
IV.
We turn to the merits of Defendants’ appeal to assess
whether § 233 immunity applies in this case. Because this
is a matter of first impression in our circuit, we briefly
review the scope of § 233 immunity provided to community
health centers and their employees.
A.
As a general principle, the United States “may not be
sued without its consent.” United States v. Mitchell, 463
U.S. 206, 212 (1983). The FTCA, however, is an example
of the federal government consenting to be sued for certain
types of actions. The FSHCAA extends the FTCA to certain
public health entities, their employees, and qualified
contractors receiving federal grants.
The relevant entities covered by the FSHCAA are
community health centers that receive federal funding under
§ 330 to serve underprivileged populations regardless of
their ability to pay for service. H.R. Rep. No. 104-398, at 5
(1995). Congress enacted the FSHCAA to prevent these
community health centers from having to use their federal
20 FRIEDENBERG V. LANE COUNTY
funds to purchase costly medical malpractice insurance,
which is “one of the most significant expenses for health
centers.” Id.
Under § 233(a), actual PHS employees, whether
“commissioned officer[s] or employee[s] of the Public
Health Service,” qualify for immunity under the FTCA for
damages resulting “from the performance of medical,
surgical, dental, or related functions . . . while acting within
the scope of [their] office or employment.” 42 U.S.C. §
233(a).4 Congress extended the protection provided to
actual PHS employees in § 233(a) to “deemed” PHS
employees under § 233(g). 42 U.S.C. § 233(g)(1)(A)5
4
42 U.S.C. § 233(a) states: The remedy against the United States
provided by sections 1346(b) and 2672 of Title 28, or by alternative
benefits provided by the United States where the availability of such
benefits precludes a remedy under section 1346(b) of Title 28, for
damage for personal injury, including death, resulting from the
performance of medical, surgical, dental, or related functions, including
the conduct of clinical studies or investigation, by any commissioned
officer or employee of the Public Health Service while acting within the
scope of his office or employment, shall be exclusive of any other civil
action or proceeding by reason of the same subject-matter against the
officer or employee (or his estate) whose act or omission gave rise to the
claim.
5
42 U.S.C. § 233(g)(1) provides in part:
(A) [A]n entity described in paragraph (4), and any
officer, governing board member, or employee of such
an entity . . . shall be deemed to be an employee of the
Public Health Service . . . [t]he remedy against the
United States for a [deemed PHS employee] shall be
exclusive of any other civil action or proceeding to the
same extent as the remedy against the United States is
exclusive pursuant to subsection (a).
FRIEDENBERG V. LANE COUNTY 21
(establishing that for entities deemed to be PHS employees
“[t]he remedy . . . shall be exclusive of any other civil action
or proceeding to the same extent as the remedy against the
United States”). An entity must be “deemed” an employee
of the PHS by the HHS to receive such protection. 42 U.S.C.
§ 233(g)– (h). The HHS makes this determination after
reviewing an entity’s application and assessing whether it
meets certain qualifications. Id.The parties do not dispute that Defendants were deemed
PHS employees during the relevant period in this case.
Rather, the dispute turns on an interpretation of § 233(g).
Defendants contend that § 233(g)(1)(A) grants deemed PHS
employees the same protection as actual PHS employees
under § 233(a). Plaintiffs contend, on the other hand, that §
233(g)(1)(B) limits protection for deemed PHS employees
to claims where “the tortious conduct occurs during ‘services
provided to patients.’”
The magistrate judge agreed with Plaintiffs and
determined that § 233 immunity does not apply in this case
because “Plaintiffs are not the ‘patient’ within the meaning
of § 233(g)(1)(B).” See 42 U.S.C. § 233(g)(1)(B) (“The
deeming of any entity . . . [applies] to services provided--(i)
to all patients of the entity and (ii) subject to subparagraph
(C), to individuals who are not patients of the entity.”). In
other words, the magistrate judge reasoned that § 233(g)
(B) The deeming of any entity or officer, governing
board member, employee, or contractor of the entity to
be an employee of the Public Health Service for
purposes of this section shall apply with respect to
services provided-- (i) to all patients of the entity, and
(ii) subject to subparagraph
(C), to individuals who are not patients of the entity.
22 FRIEDENBERG V. LANE COUNTY
only covers claims made by parties who received direct
medical care. The district court agreed and remanded the
case to state court. For the reasons explained below, we hold
that this was error.
1.
We agree with Defendants that § 233 immunity does not
turn on who brings the claim, but rather whether the conduct
giving rise to the claim arose out of the Defendants’
performance of “medical, surgical, dental or related
functions.” 42 U.S.C. § 233(a).
Nothing in § 233(g)(1)(B) limits immunity protection to
a particular class of plaintiffs. Rather, the statute
contemplates the types of actions for which deemed PHS
employees are covered. Such actions include claims
regarding “services provided to all patients of the entity,”
and in limited circumstances “to non-patients.” 42 U.S.C. §
233(g)(1)(B). While the claim must result from the
performance of these services, the claimant need not be a
patient nor a recipient of medical or dental care for a deemed
PHS employee to invoke § 233 immunity. To the extent the
district court ruled that § 233 did not apply in this case
because Plaintiffs were not “patients,” that was legal error.
This is illustrated in the cases we discuss below, where
courts have recognized claims filed by third parties against
deemed PHS employees.
Plaintiffs do not seriously dispute this point, as the issue
in this case does not turn on whether a third-party may sue
for damages in connection with services provided to a
patient. Plaintiffs nonetheless contend that § 233 immunity
is unavailable in this case because § 233(g) limits the
protection deemed PHS employees are afforded.
FRIEDENBERG V. LANE COUNTY 23
2.
Plaintiffs contend that § 233 immunity extends lesser
protection to deemed PHS employees under § 233(g) than it
does to actual PHS employees under § 233(a). According to
Plaintiffs, while § 233(a) provides actual PHS employees
protection from any claims arising out of their performance
of medical or related functions, § 233(g) protects deemed
PHS employees only in cases where the tortious conduct
“occurs during the provision of medical services to a
patient.”
Plaintiffs argue that the tortious conduct here, which is
LCMH’s failure to inform the municipal court of Bryant’s
violations of his treatment plan, did not occur during the
Defendants’ provision of medical services to Bryant. Thus,
Plaintiffs posit that § 233 immunity does not apply.
Defendants counter that § 233(g) is not as limited as
Plaintiffs suggest. Rather, they assert that deemed PHS
employees receive protection “to the same extent” as actual
PHS employees, which includes immunity from any claims
for damages that resulted from the Defendants’ performance
of “medical, surgical, dental, or related functions[,]” 42
U.S.C. § 233(a) (emphasis added), to patients and other
individuals, 42 U.S.C. § 233(g)(1)(B). According to
Defendants, “[n]othing in § 233(a) or (g) limits [the] . . .
grant of absolute immunity to claims brought by plaintiffs
directly harmed at the hands of a deemed provider.” A plain
reading of the statute (and the legislative history) supports
Defendants’ interpretation.
Section 233(g)(1)(A) states in plain terms that “[t]he
remedy against the United States for . . . an entity who is
deemed to be an employee of the Public Health Service
pursuant to this paragraph shall be exclusive of any other
24 FRIEDENBERG V. LANE COUNTY
civil action or proceeding to the same extent as the remedy
against the United States is exclusive pursuant to subsection
(a).” 42 U.S.C. § 233(g)(1)(A) (emphasis added). The “to
the same extent” language suggests that the protection in §
233(g) is the same as in § 233(a). Plaintiffs’ argument would
render this statutory phrase meaningless.
Nor does the text in § 233(g)(1)(B) undermine
Defendants’ interpretation. Plaintiffs contend that Congress
included § 233(g)(1)(B) to limit coverage with “respect to
services provided” to “patients of the entity” and that we
must “give meaning and effect to the limiting words
chosen.” While we acknowledge Congress’s intent in
enacting § 233(g)(1)(B), we are not persuaded that this
language limits immunity to “tortious conduct” that “occurs
in the setting of the actual provision of medical services.”
Rather, when § 233(g)(1)(B) is read in conjunction with §
233(g)(1)(A) and § 233(a), it is clear that deemed PHS
employees are entitled to immunity from claims resulting
from providing “medical, surgical, dental, or related”
services to “patients” and some “individuals who are not
patients of the entity.” 42 U.S.C. § 233(a), (g)(1)(B). The
statutory text clearly shows that immunity is not tied to
whether the tort transpired in caring for the patient. Rather,
the language illustrates that as long as a claim is derived from
providing services to subjects of the healthcare provider, the
deemed PHS employee is immune from suit.
Furthermore, there is nothing in the legislative history
that suggests “deemed” PHS employees receive lesser
protection than actual PHS employees. To the contrary,
Congress intended for deemed PHS employees to receive
protection “in the same manner” as traditional PHS
employees during the coverage period. H.R. Rep. No. 104-
FRIEDENBERG V. LANE COUNTY 25
398, at 4.6 As Defendants note, Congress was concerned
with the lack of health center participation in the § 330 grant
program because community health centers lacked clarity on
whether certain services would be covered, such as services
provided to non-patients. Id. at 7. Sections 233(g)(1)(B) and
(C) were enacted to clear up such confusion, not to limit the
protection afforded to deemed PHS employees. See also id.
at 7, 11.
There is nothing to suggest that Congress intended to
limit the scope of protection by enacting § 233(g), and there
are no cases interpreting the provision as having such an
effect. Accordingly, Plaintiffs’ argument that deemed PHS
employees receive limited protection under § 233 lacks
merit.
Plaintiffs next argue that “[n]othing in the legislative
history indicates that Congress intended to provide
immunity to health centers for general tort liability arising
from slip and falls, employment claims, or vehicular torts
that occur outside of the actual provision of medical services
to patients.” But this case does not involve such conduct.
This argument is thus inapposite.
Plaintiffs also contend that § 233 was enacted to cover
only medical malpractice claims. Several courts have
6
The legislative history is clear on this point. See H.R. Rep. No. 104-
398, at 4 (“Health centers and their employees, officers, and contractors
are covered for malpractice claims in the same manner as employees of
the Public Health Service who provide medical care.”); see also id. at 10
(“Under current law (section 224 of the Public Health Service Act),
certain Federally assisted health centers, and their physicians and other
health care practitioners, are covered for malpractice claims under the
[FTCA] . . . in the same manner as are employees of the Public Health
Service who provide medical care.”).
26 FRIEDENBERG V. LANE COUNTY
grappled with this issue and have rejected this interpretation.
Indeed, most of the cases Plaintiffs rely on so conclude.7
Those courts have held so for good reason. While
Congress’s concerns regarding malpractice insurance
premiums were the driving force behind the legislation,
Congress did not limit § 233 immunity to “only” malpractice
claims when it could have. See Cuoco v. Moritsugu, 222
F.3d 99, 108 (2d Cir. 2000); see also Logan v. St. Charles
Health Council, Inc., 2006 WL 1149214, at *2 (W.D. Va.
May 1, 2006) (“Congress, in drafting the statute, failed to
use plain language limiting the statute to medical
malpractice suits . . . .”). Accordingly, the scope of § 233
immunity does not depend on whether the claim is framed as
one of medical malpractice, but rather whether the claim is
the result of the defendant’s “performance of medical,
surgical, dental, or related functions” in providing services
to both patients and nonpatients alike. 42 U.S.C. § 233(a),
(g).
Any other reading would render the “related functions”
language in the statute superfluous. See Pomeroy v. United
7
See Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000) (“Cuoco
asserts that § 233(a) provides immunity only from medical malpractice
claims. But there is nothing in the language of § 233(a) to support that
conclusion. When Congress has sought to limit immunity to medical
malpractice claims it has done so explicitly.” (citation omitted)); Logan
v. St. Charles Health Council, Inc., 2006 WL 1149214, at *2 (W.D. Va.
May 1, 2006) (same); Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 299
(D. Conn. Jul. 16, 2001) (same); see also Z.B. ex rel. Next Friend v.
Ammonoosuc Cmty. Health Servs., Inc., 2004 WL 1571988, at *3 (D.
Me. June 13, 2004), report and recommendation adopted sub nom. Z.B.
ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc., 2004 WL
1925538 (D. Me. Aug. 31, 2004); Bennett v. United States, 375 F. Supp.
3d 1180, 1187 (W.D. Wash. Mar. 22, 2019); Blackburn v. United States,
2021 WL 3027979, at *6 (10th Cir. 2021).
FRIEDENBERG V. LANE COUNTY 27
States, 2018 WL 1093501, at *2 (D. Mass. Feb. 27, 2018)
(“The statute must cover a broader scope of activity than the
delineated categories alone, or else ‘related functions’ would
be mere superfluity.” (citation omitted)). We must give
meaning to the plain text of the statute, and here, § 233(a)
plainly encompasses damages stemming from the
performance of medical and “related” functions. As
explained further below, the tortious conduct in this case
meets these criteria.
B.
Having defined the scope of § 233 immunity, we
consider whether it applies in this case. We conclude that it
does.
The alleged tortious conduct in this case is Defendants’
failure to notify the municipal court of Bryant’s violations of
his probation order by failing to comply with his mental
health treatment plan.8 The question then is whether
Defendants’ failure to report Bryant’s violations of his
treatment plan to the municipal court is a “related function”
under § 233(a).
Few cases have assessed the meaning of “related
function” under § 233(a), and neither we nor the Supreme
Court have had occasion to weigh in. See Brignac v. United
States, 239 F. Supp. 3d 1367, 1376 (N.D. Ga. Mar. 9, 2017).
While not binding, we find persuasive several district court
cases that have interpreted this language. We hold that the
8
Defendants also refer to Plaintiffs’ allegations that Defendants’
treatment plan for Bryant was ineffective. Plaintiffs have stated on
numerous occasions, however, that this case is not about the Defendants’
failure to treat Bryant, but rather, their failure to report his violations to
the municipal court. The crux of the allegations in the First Amended
Complaint supports this theory.
28 FRIEDENBERG V. LANE COUNTY
conduct here is at least a medically “related function” under
§ 233(a).
Mele v. Hill Health Center is instructive. 609 F. Supp.
2d 248 (D. Conn. Mar. 31, 2009). The plaintiff, Mele, was
a criminal defendant who was ordered to participate in a
health center’s federally funded health program that
provided behavioral health services for individuals with
substance abuse. Id. at 254. Mele, however, was ultimately
terminated from the program because he violated his
treatment plan. Id. Mele sued the health center and its
employees for violating his Constitutional rights when they
“terminated him from [the] drug treatment program.” Id. at
252. The district court determined that the United States
should be substituted as the sole defendant because the
defendants’ alleged wrongdoing “related” to the provision of
the deemed PHS employees’ medical services to Mele. Id.
at 256. According to the court, there was no evidence to
suggest that the defendants’ “decision to terminate [Mele’s]
treatment was based on reasons unrelated to his medical
care.” Id. The facts here are analogous.
In Teresa T. v. Ragaglia, the plaintiffs sued a doctor for
failing to report suspected child abuse. 154 F. Supp. 2d 290,
293 (D. Conn. Jul. 16, 2001). Although the failure to report
did not involve a direct medical service, the court determined
that the doctor’s failure to report the suspected child abuse
was a “related function” to the provision of medical services.
Id. at 299–300. The court reasoned that the failure to report
was “related” to medical services because the duty to report
was imposed on doctors acting within their professional
capacity. Id. at 300. While the court reasoned that the duty
to report was “triggered” during a medical examination of
the child, the tortious conduct did not occur during the
provision of medical services. Id. As in this case, the
FRIEDENBERG V. LANE COUNTY 29
tortious conduct in Teresa T. was the failure to meet an
alleged reporting obligation related to the evaluation of a
patient.
Similarly, in Z.B. ex rel. Next Friend v. Ammonoosuc
Community Health Services, Inc., the court reasoned that a
medical professional’s failure to report suspected child
abuse was “related” to medical services because the duty to
report “arises out of the employees’ status as medical
professionals.” 2004 WL 1571988, at *3 (D. Me. June 13,
2004), report and recommendation adopted sub nom. Z.B.
ex rel. Kilmer v. Ammonoosuc Cmty. Health Servs., Inc.,
2004 WL 1925538 (D. Me. Aug. 31, 2004). In that case, like
here, medical services were not provided directly to the
plaintiff who was the child. Id. Rather, the medical services
were provided to the plaintiff’s mother, during which the
medical professionals learned of potential child abuse and
had a duty to report suspected child abuse. Id. The court
concluded that the tortious conduct was “related” to the
provision of medical services to the plaintiff’s mother given
that the duty to report arose out of the defendants’ status as
medical professionals and because the services were
provided to the mother due to concerns over the child’s
welfare. Id. That case did not turn on the provision of
medical treatment, but rather, whether the plaintiff’s harm
was related to it.9
9
There are several other district court cases that follow the same
reasoning. See, e.g., C.K. v. United States, 2020 WL 6684921, at *6
(S.D. Cal. Nov. 12, 2020) (reasoning that “administrative or operational
duties could qualify as related functions where they were connected to
the provision of medical care” (citation omitted)); Pomeroy, 2018 WL
1093501, at *2–3 (stating that a nursing home’s negligent provision of
solid food to a woman with a known swallowing disability constitutes a
related function); Trap v. United States, 2016 WL 6609212, at *3 (C.D.
30 FRIEDENBERG V. LANE COUNTY
Plaintiffs’ proposition that § 233 immunity applies only
when the injury occurs “during the provision of medical
treatment to a patient” ignores the statutory text. Such an
interpretation would unduly limit the immunity protection
under § 233(a) and render meaningless the portion of the
statute that covers “related” medical functions.
We recognize that there are cases that declined to extend
§ 233 immunity to defendants because the alleged tortious
conduct had nothing to do with the provision of medical
services and thus could not be a “related function.”10 The
alleged tortious conduct here, however, is not so far removed
from medical services that it cannot qualify as related
conduct. Rather, this case approximates the cases discussed
above where district courts found that the tortious conduct
was “related” to the provision of medical services. As in
Mele, where the district court reasoned that a health center’s
Cal. Mar. 7, 2016) (concluding that acts of retaliation against a prisoner
such as subjecting him to extended periods in inclement weather and
denying him “food . . . on day-long trips outside the prison for his
medical appointments” were “related” to the provision of medical
services); Mele v. Hill Health Ctr., 2008 WL 160226, at *3 (D. Conn.
Jan. 8, 2008) (reasoning that § 233 immunity applied to a doctor’s
disclosure of patient information because such actions concerned “the
medical functions of providing treatment and the related function of
ensuring the privacy of patient medical information”).
10
See Mendez v. Belton, 739 F.2d 15, 19–20 (1st Cir. 1984) (declining
to extend § 233 immunity to a medical provider who sued her employer
for racial and sexual discrimination when it denied her of certain staff
privileges); Logan, 2006 WL 1149214, at *1–3 (declining to extend §
233 immunity to a medical provider who sued her employer for
fraudulently using her name to write prescriptions she did not authorize);
La Casa de Buena Salud v. United States, 2008 WL 2323495, at *20–22
(D.N.M. Mar. 21, 2008) (declining to extend § 233 immunity to a doctor
who murdered a former patient at a private location while off duty).
FRIEDENBERG V. LANE COUNTY 31
termination of a prisoner from a jail diversion program was
“related” to the provision of medical services, here, the
Defendants’ failure to report Bryant’s violations of his
treatment plan to the court was “related” to the provision of
medical services. See 609 F. Supp. 2d at 256.
Further, as in Teresa T. and Z.B., the alleged wrongdoing
in this case is directed at the Defendants’ failure to report
Bryant’s violations of his treatment plan in their capacities
as medical professionals. See 154 F. Supp. 2d at 300; 2004
WL 1571988, at *3. Indeed, any duty that the Defendants
had to report Bryant’s violations and potential threat to the
public was tied to their status as medical health
professionals.11 In the above cases, the conduct in question
had a distinct connection to the provision of medical,
surgical, or dental services. See id. Such conduct falls
within the ambit of § 233.
In sum, Defendants’ failure to report is intertwined with
their provision of medical services to Bryant, or at the very
least, is “related” to them. Accordingly, we conclude that
the tortious conduct in this case qualifies as a “related
function” under § 233(a).
11
As alleged in the First Amended Complaint, Plaintiffs claim they were
harmed as a result of the Defendants’ failure to report Bryant’s
violations. While Plaintiffs do not specify the source of any such duty
that Defendants owed Plaintiffs in their operative complaint, the legal
sufficiency of their allegations is not dispositive. As Defendants note,
the viability of Plaintiffs’ underlying claims is not determinative of
whether Defendants are entitled to § 233 immunity. The important
question is whether the alleged acts or omissions in this case are
“medical, surgical, dental, or related functions” under § 233(a). Whether
Plaintiffs can state a claim for relief is for the district court to address in
the first instance.
32 FRIEDENBERG V. LANE COUNTY
C.
Finally, the parties contest whether Defendants’ tortious
conduct fell outside of their § 330 grant activities.12 Under
42 C.F.R. § 6.6, “[o]nly acts and omissions related to the
grant-supported activity of entities are covered” even if the
other requirements for immunity under § 233 have been met.
42 C.F.R. § 6.6(d).
Plaintiffs first argue that the tortious conduct in this case
does not relate to Defendants’ grant-supported activity
because Lane County never mentioned the “Jail Diversion
Program” in its grant application. We reject this argument.
Plaintiffs fail to cite any authority stating that such
specification is required. Indeed, the FTCA Manual that
Plaintiffs rely on only instructs grant applicants to specify
the services that they plan to perform and the locations for
such services.13 An applicant need not identify the specific
names of the programs that will refer patients to the applicant
health centers. Indeed, the single case that Plaintiffs rely on
states as much and does not support Plaintiffs’ argument.
See Estate of Booker v. Greater Philadelphia Health Action,
Inc., 10 F. Supp. 3d 656, 669–70 (E.D. Pa. Mar. 31, 2014)
(determining that deemed health center’s “Employee Health
Program” was grant-supported activity even though the
12
Defendants also argue that the individual Defendants were acting
within the scope of their employment under Oregon state law when they
committed the tortious conduct in this case. Plaintiffs do not contest this
point; rather, Plaintiffs contend that Defendants’ tortious conduct fell
outside the scope of their grant-supported activity, which is a separate
inquiry.
13
Federal Tort Claims Act, Health Center Policy Manual (“FTCA
Manual”), at 8 (HHS 2014), https://bphc.hrsa.gov/ftca/pdf/ftcahcpolicy
manualpdf.pdf.
FRIEDENBERG V. LANE COUNTY 33
center’s application did not mention the program by name
but only noted the program’s substance and services).
Here, Lane County references its plans to provide mental
health treatment services to underserved patients in the
community in its grant application. Lane County’s
participation in the Jail Diversion Program “as a patient
referral service is [just] one community-based intervention
through which Lane County meets the needs of its target
population.”
Plaintiffs’ argument that the Jail Diversion Program is
state funded and thus falls outside of the grant’s scope also
lacks merit.14 Even assuming that “grant-supported activity”
only includes activity that is directly paid for by federal
funds, Plaintiffs’ arguments fail because they ignore the
“related to” language in 42 C.F.R. § 6.6(d). 42 C.F.R. §
6.6(d) (“Only acts and omissions related to the grant-
supported activity of entities are covered.” (emphasis
added)); see Z.B., 2004 WL 1571988, at *4. Indeed, “it is
the term ‘related to’ in the regulation that is crucial.” Z.B.,
2004 WL 1571988, at *4. Thus, if the County’s Jail
Diversion Program is “related to” activity that is supported
by the grant at issue, nothing further is required. See id.That requirement is easily satisfied here. It is undisputed
that Lane County’s grant covers its efforts to provide mental
health services to vulnerable communities in its covered
areas, and that the Jail Diversion Program provides needed
mental health services to adults and juveniles in those areas
who encounter the criminal justice system. Given that the
14
The record suggests that the Jail Diversion Program is only partially
state funded as its costs were included in the grant application’s total-
budget.
34 FRIEDENBERG V. LANE COUNTY
expressed purposes of the program and the federally funded
activities are similar, the acts and omissions in this case at
least “relate to” Lane County’s grant-supported activity.
Accordingly, Defendants’ tortious conduct falls within
the scope of their § 330 grant. Because Defendants meet the
qualifications set forth in § 233(a), they are entitled to
immunity in this case.
V.
We reverse the district court’s order remanding this case
to state court. We remand to the district court to enter an
order substituting the United States as the defendant and
deeming the action as one brought under the FTCA.
REVERSED AND REMANDED
NGUYEN, Circuit Judge, dissenting:
We do not, in my view, have jurisdiction over this
appeal. Because the majority concludes otherwise, I
respectfully dissent. As the majority acknowledges, unless
an exception applies, we lack jurisdiction to review remand
orders. The Lane County defendants invoke the exception
for “an order remanding a case to the State court from which
it was removed pursuant to section 1442 or 1443 of this
title.” 28 U.S.C. § 1447(d). But even a cursory review of
the notice of removal makes clear that the Lane County
defendants did not in fact remove this case under § 1442.
The notice of removal, seventeen pages long, is entirely
dedicated to explaining why there is federal jurisdiction
pursuant to 42 U.S.C. § 233. It says unequivocally that the
case is removed pursuant to § 233(l)(2). See Notice of
FRIEDENBERG V. LANE COUNTY 35
Removal at 3 (“[T]his action is properly removed under 42
U.S.C. § 233(l)(2), a federal officer removal statute enacted
specifically for the benefit of deemed PHS employees.”). It
cites § 1442 in passing just three times. Two of those
citations are only by way of comparison with removal under
§ 233(l)(2). See Notice of Removal at 3 (“Section 233(l)(2)
serves a purpose similar to the general officer removal
statute at 28 U.S.C. § 1442(a)(1) – i.e., to provide a right to
a federal forum for a judicial determination as to the
availability of a federal officer immunity defense.”); id. at 9(“Section 233(l)(2) is in substance and effect an officer
removal statute, akin to (but even more generous than) the
general officer removal statute at 28 U.S.C. § 1442(a)(1).”).
The third passing reference to § 1442 is in a string
citation, which the majority excerpted in part. Maj. Op. at
15. The entire sentence reads:
The Court has jurisdiction pursuant to the
PHS Act, FSHCAA, the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2679(d)(3), 28
U.S.C. § 1442(a)(1), and 28 U.S.C. § 1331,
to assess whether the alleged acts or
omissions in the state action arose out of “the
performance of medical, surgical, dental or
related functions” within the scope of
defendants’ deemed PHS employment and,
in turn, whether the United States must be
substituted as the only proper defendant.”
Notice of Removal at 3 (citations omitted). A string citation,
without more, does not give sufficient notice that the Lane
County defendants “assert the case is removable ‘in
accordance with or by reason of’” § 1442. BP P.L.C. v.
36 FRIEDENBERG V. LANE COUNTY
Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538
(2021). Moreover, this sentence—in contrast to those
invoking § 233(l)(2)—states that § 1442 is a basis for
jurisdiction, not a basis for removal. More importantly,
because the rest of the notice of removal is focused solely on
§ 233, this stray reference to § 1442 does not put other
litigants or the court on notice that § 1442 is a basis for
removal. In fact, like the notice of removal, the Lane County
defendants’ filings below mentioned § 1442 only as a
comparator to § 233(l)(2). As a result, none of the district
court’s orders analyzed § 1442 as a basis for removal, and it
was not until the Lane County defendants filed a notice of
appeal that they invoked § 1442 as a basis for removal. See
BP, 141 S. Ct. at 1538 (“[T]he statute allows courts of
appeals to examine the whole of a district court’s ‘order,’
not just some of its parts or pieces.”) (emphasis added).
It does not take much to give notice of a ground for
removal. But a fair reading of the notice of removal here
shows that the Lane County defendants never asserted their
intention to remove this case under § 1442. I would
therefore dismiss the appeal for lack of jurisdiction.