Raizel Blumberger v. Ian B. Tilley, et al.

The Federally Supported Health Centers Assistance Act provides federally funded health centers with protections from liability in malpractice actions by “deeming” them to be Public Health Service (PHS) employees under certain circumstances. Where a defendant seeks to take advantage of these protections in a state court proceeding, it must notify the Attorney General of the action, and the Attorney General must, within 15 days, appear in the action and “advise such court whether the Secretary [of Health and Human Services] has determined … that [the defendant] 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,” and, if so, to remove the case to district court. 42 U.S.C. § 233(l)(1). The questions presented are:

1. Whether, as the Ninth Circuit held, but contrary to the views of three other circuits, a defendant who disagrees with the Attorney General’s timely state-court filing under section 233(l)(1) may remove the action to federal district court to review the correctness of that filing, despite the absence of any statutory basis for removal.

2. Whether, as the Ninth Circuit held, but in direct conflict with a decision of the Third Circuit, section 233(l)(1) requires the Attorney General to remove any state court action against an entity that had prospectively been deemed a PHS employee for some purposes, without consideration as to whether the specific case falls within the scope of any such deeming.