El Centro del Barrio, dba CentroMed v. Arturo Gonzalez

Jurisdiction under two removal statutes is at issue. A provision of the Public Health Service Act, 42 U.S.C. § 233(l), provides for removal of civil actions against defendants the Secretary of Health and Human Services has—under 42 U.S.C. § 233(g) and (h)—deemed to be Public Health Service employees for purposes of § 233(a)’s suit immunity. The Attorney General must appear in state court within fifteen days of notice of the action, and must advise the state court “whether the Secretary has determined under subsections (g) and (h)” that the defendant is deemed an employee of the Public Health Service “with respect to the actions or omissions that are the subject of” the action. Id. § 233(l)(1). The appearance and advice “shall be deemed to satisfy § 233(c),” which requires removal. “If the Attorney General fails to appear” within that period, the action “shall be removed” to federal district court on the deemed employee’s petition. Id. § 233(l)(2). The federal officer removal statute, 28 U.S.C. § 1442(a)(1), separately affords removal jurisdiction to adjudicate federal defenses of “any person acting under” a federal officer. The questions presented are:

1. Whether the Attorney General’s timely state court appearance extinguishes removal jurisdiction under 42 U.S.C. § 233(l)(1), including a deemed Public Health Service employee’s removal right under 42 U.S.C. § 233(l)(2).

2. Whether the thirty-day procedural time limit for removal in 28 U.S.C. § 1446(b)(1) is triggered at service based solely on a deemed defendant’s subjective knowledge of its own federal status.