Blumberger v. Tilley
Under the Public Health Service Act, a federally funded community health center and its employees are treated as federal employees under certain circumstances. When an employee of a federally funded community health center is sued, the center informs the government, which them advises the court whether 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 the lawsuit. If the government determines that the answer is yes, the employee may have qualified immunity from suit and is entitled to representation by the federal government in the lawsuit.
In this medical malpractice case, after a patient suffered from complications while giving birth at the California Hospital Medical Center, she sued the hospital and her doctor, Ian Tilley, in California state court. Dr. Tilley also works for the Eisner Pediatric and Family Center, a federally-funded community health center. Pursuant to the Public Health Service Act, Eisner forwarded a copy of the suit to the Department of Health and Human Services. Two days later, an Assistant United States Attorney filed a notice in the California state court stating that the federal government was considering whether it deemed Dr. Tilley to be an employee of the Public Health Service with respect to the actions at issue in the lawsuit.
The case proceeded in state court for another year, at which time the Assistant United States Attorney filed an amended notice stating that Dr. Tilley was not an employee of the Public Health Service for purposes the lawsuit. Dr. Tilley then removed the case from state court to federal district court, invoking the federal-officer removal statute and the removal provisions of the Public Health Service Act. The plaintiff moved to remand. Granting the motion, the district court held that Dr. Tilley’s removal under the federal-officer removal statute was untimely and that the removal provisions of the Public Health Service Act – which allow removal actions where the federal government has not timely appeared in the state court action – did not apply.
On appeal, a divided panel of the Ninth Circuit reversed. The court applied a “presumption of reviewability” of the government’s actions in the state court, and concluded that the federal government should have deemed Dr. Tilley to be an employee of the Service and itself removed the case to federal court. The court stated that the federal district court should determine whether Dr. Tilley was entitled to removal, and it also directed the district court to reevaluate the timeliness of removal under the federal-officer removal statute.
On behalf of the the plaintiff, we filed a petition for rehearing en banc. The petition explains that the presumption of reviewability cannot provide a basis for removal jurisdiction, that the two statutory removal provisions were exclusive, and that the panel opinion creates a split with three other courts of appeals. The petition is pending.