Allen v. Christenberry

• Decision Date: 16 April 2003
• Docket Number: No. 02-13283.,02-13283.
• Citation: 327 F.3d 1290
• Parties: Kathy ALLEN, individually and as mother and next friend of her baby son who suffered intrauterine death at 35 weeks of gestation, whose name as used in this complaint will be Dakota Allen, Plaintiff-Appellant, v. Kyle P. CHRISTENBERRY, Dr., W. Newton Godfree, Dr., QHG of Gadsden Inc., d.b.a. Gadsden Regional Medical Center, Emcare, Inc., Vernon Johnson, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1290

327 F.3d 1290

Kathy ALLEN, individually and as mother and next friend of her baby son who suffered intrauterine death at 35 weeks of gestation, whose name as used in this complaint will be Dakota Allen, Plaintiff-Appellant, v. Kyle P. CHRISTENBERRY, Dr., W. Newton Godfree, Dr., QHG of Gadsden Inc., d.b.a. Gadsden Regional Medical Center, Emcare, Inc., Vernon Johnson, M.D., Defendants-Appellees.

No. 02-13283.

United States Court of Appeals, Eleventh Circuit.

April 16, 2003.

Rehearing Denied May 28, 2003.

Stewart E. Burns, Douglas Burns, Burns, Burns & Burns, Gadsden, AL, for Plaintiff-Appellant.

Dorothy A. Powell, Mark W. Lee, Robert E. Parsons, Parsons, Lee & Juliano, P.C., Jason A. Shamblin, Birmingham, AL, for Defendants-Appellees.

Kathleen A. Kane, Barbara L. Herwig, App. Staff/Civ. Div./U.S. Dept. of Justice, Washington, DC, for Amicus Curiae, U.S.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, HULL and ALARCON^*, Circuit Judges.

CARNES, Circuit Judge:

This appeal stems from a medical malpractice lawsuit filed in state court by Kathy Allen against Dr. Kyle Christenberry and Dr. W. Newton Godfree. The defendant doctors removed the case to federal court ten days before the trial in state court was scheduled to begin, on the asserted ground that they were federal employees under the Federally Supported Health Centers Assistance Act of 1995 (FSHCAA), Pub.L. No. 104-73, 109 Stat. 777 (1995) (codified at 42 U.S.C. § 233). Allen moved the federal district court to remand the case to state court, but it denied her motion, concluding that the defendant doctors had properly removed the case and that they were entitled to the protections of 42 U.S.C. § 233(a). We disagree, because the FSHCAA provides specific prerequisites for removal of a case under its provisions, and they were not met in this case. For that reason, we will reverse the judgment of the district court and instruct it to remand the case to state court.

I.

During her pregnancy in 1996, Kathy Allen received prenatal care from Etowah Quality of Life, Inc. ("the Etowah Center"), a federally funded community health center. The Etowah Center has been deemed by the Department of Health and Human Services (HHS), in accordance with the FSHCAA, to be eligible for coverage under the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346(b)(1); 42 U.S.C. § 233(a), (g)(1)(A). Approximately 34 to 35 weeks into her pregnancy, Allen was diagnosed with premature rupture of the fetal membranes and received care from Drs. Christenberry and Godfree at Gadsden Regional Medical Center. They provided services to her under a contract with the Etowah Center.¹ After that treatment, an ultrasound test revealed that the baby had died in utero.

Allen filed a medical malpractice action against Drs. Christenberry and Godfree and several other defendants on June 6, 1997, in state court in Etowah County, Alabama. The defendant doctors moved to dismiss the case on the ground that the state court did not have jurisdiction over the claims against them because they were federal employees whose actions in providing care and treatment to Allen were covered by the FTCA. The state court denied their motion on January 16, 1998, and discovery in the case proceeded. On April 24, 2001, the state court set a trial date of November 26, 2001.

Drs. Christenberry and Godfree made some early ineffective attempts to have HHS or the Department of Justice defend the suit. On July 1, 1997, Wayne Rowe, the chief executive officer of the Etowah Center, forwarded Allen's complaint to the Office of the General Counsel of HHS and requested that it move to dismiss the two doctors as named defendants or otherwise defend the suit on their behalf. On July 17, 1997, Elizabeth Gianturco, the chief of HHS's Litigation Branch, requested additional information from Rowe and asked that he also send the information to Roger Einerson in the Torts Branch of the Department of Justice. Gianturco advised Rowe that before it could request that the Department of Justice represent the defendant doctors, HHS needed to determine whether the doctors were covered under the FTCA and were working within the scope of their employment. On August 4, 1997, Rowe sent the requested documentation to Gianturco and indicated a copy to Einerson. Several months later, on November 12, 1997, counsel for the defendant doctors sent a letter to the FTCA Coordinator of the Public Health Service (PHS) and enclosed a copy of the complaint, their motion to dismiss, and Allen's response to the motion to dismiss. The record does not contain evidence of any other contact or attempted contact between the two doctors and HHS, or between them and the Department of Justice, during the four year period from November 12, 1997 to November 16, 2001.

On November 16, 2001, over four years from the date of the last letter to PHS on behalf of Drs. Christenberry and Godfree, and only ten days from the scheduled start date of the trial in state court, the two doctors sent a letter to Jeffrey Axelrad, Director of the Torts Branch at the Department of Justice. They requested that the Attorney General certify that they were acting within the scope of their federal employment at the Etowah Center when Allen's malpractice claim arose and move to substitute the United States as a defendant under the FTCA.

On November 20, 2001, the United States, acting through the United States Attorney for the Northern District of Alabama, filed a "Notice Pursuant to 42 U.S.C. § 233(l)(1)" in state court. The notice stated that the Attorney General had been notified for the first time of the lawsuit on November 16, 2001, and it "advise[d] this Honorable Court that the Secretary of the United States Department of Health and Human Services ha[d] under consideration" whether Drs. Christenberry and Godfree were to be deemed employees of PHS under 42 U.S.C. § 233(l)(1). The notice acknowledged the possibility that they "may be deemed" employees covered by 42 U.S.C. § 233(a). Also on November 20, 2001, HHS informed the two doctors that they were not going to be deemed employees of PHS and that decision was final and binding upon the Attorney General and the parties in the lawsuit.

Notwithstanding the letter from HHS, Drs. Christenberry and Godfree removed the case to federal district court on November 21, 2001. They based that removal on several statutes, including 42 U.S.C. § 233, 28 U.S.C. § 1331, and 28 U.S.C. § 1446(b). On the same day as the removal, they also filed in the district court a "Motion for De Novo Determination of Status of Defendants as Employees of Public Health Service." Allen moved, on November 27, 2001, to remand the case to state court.

The district court denied Allen's motion to remand, because it concluded that Drs. Christenberry and Godfree had given timely notice of the suit to their immediate superior, Wayne Rowe, as required by the FSHCAA, and in the district court's view they were contractors entitled to the protections of 42 U.S.C. § 233(a). The court concluded that "[t]he action has been timely removed by the defendants or, by operation of law, has been or should have been removed by the Attorney General." To permit interlocutory review of its decision, the district court entered an order stating that its decision involved a controlling issue of law as to which there is a substantial ground for difference of opinion and that an immediate appeal could materially advance the ultimate termination of the litigation. Based upon that certification, Allen filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b), which we granted.

II.

We begin our consideration of 42 U.S.C. § 233(a) with the recognition that removal statutes should be construed narrowly, with doubts resolved against removal. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941)). The FSHCAA provides authority to remove cases to federal court only in specific and limited circumstances. Because those circumstances were not present in this case, Drs. Christenberry and Godfree did not properly remove this action to federal court.

The FSHCAA makes the remedy provided against the United States under the FTCA the exclusive remedy for the medical malpractice of employees or contractors of PHS.² 42 U.S.C. § 233(a). In order to be covered under the FTCA, an entity, an employee of the entity, or a contractor of the entity seeking coverage must be deemed an employee of PHS. 42 U.S.C. § 233(g)(1)(A). Drs. Christenberry and Godfree claim that they are contractors of the Etowah Center, a federally supported health center which itself is deemed an employee of PHS, and for that reason they should be deemed employees of PHS and entitled to the protections of the FTCA.

Section 233(b) provides that the Attorney General "shall defend any civil action" brought in court against any officer or employee of PHS acting in the scope of his employment. 42 U.S.C. § 233(b). The Attorney General may remove a case under § 233(c) this way:

Upon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending....

Id. § 233(c).

Section 233(l)(1) provides that if a civil action is filed in state court against an eligible entity or an employee or contractor of the entity, "the Attorney General, within 15 days after being notified of such filing, shall make an appearance in such court and advise such court" whether the Secretary of HHS has determined that the entity, employee, or contractor is ...