Agyin v. Razmzan

• Decision Date: 26 January 2021
• Docket Number: August Term 2019,No. 19-227,19-227
• Citation: 986 F.3d 168
• Parties: Aisha AGYIN, Plaintiff, v. Shahram RAZMZAN, Defendant-Appellant, United States of America, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

986 F.3d 168

Aisha AGYIN, Plaintiff,

v.Shahram RAZMZAN, Defendant-Appellant,United States of America, Appellee.^*

No. 19-227

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: February 4, 2020

Decided: January 26, 2021

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.

Before: Pooler, Lynch, and Menashi, Circuit Judges.

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 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.

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 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, 130 S.Ct. 1845, 176 L.Ed.2d 703 (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 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 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...