Celestine v. Mount Vernon Neighborhood Health Cen.

• Decision Date: 28 October 2003
• Docket Number: No. 03 CIV.4297(CM).,03 CIV.4297(CM).
• Parties: Jeanina CELESTINE, Plaintiff, v. MOUNT VERNON NEIGHBORHOOD HEALTH CENTER, Defendant.
• Court: U.S. District Court — Southern District of New York

289 F.Supp.2d 392

Jeanina CELESTINE, Plaintiff, v. MOUNT VERNON NEIGHBORHOOD HEALTH CENTER, Defendant.

No. 03 CIV.4297(CM).

United States District Court, S.D. New York.

October 28, 2003.

Michael P. Bloomfield, Bronx, NY, for Jeanina Celestine, plaintiff.

Lara K. Eshkenazi, United States Attorney Office, New York City, for Mt. Vernon Neighborh, Mount Vernon Neighborhood Health Center, defendant.

DECISION AND ORDER GRANTING THE MOTION TO SUBSTITUTE THE UNITED STATES AS THE PARTY DEFENDANT, DENYING PLAINTIFF'S CROSS-MOTION TO REMAND AND DISMISSING COMPLAINT FOR WANT OF JURISDICTION

MCMAHON, District Judge.

FACTS

On or about September 3, 2002, plaintiff commenced a medical malpractice action against Defendant Mount Vernon Neighborhood Health Center ("Mount Vernon Health") in the State Supreme Court, Westchester County, by filing a "Summons with Notice" pursuant to N.Y. CPLR § 305(b). The Summons with Notice was properly served upon Carole Morris. Carole Morris is the Executive Director of Health & Human Services. In her summons, Plaintiff states the nature of the action as follows: "to recover damages for personal injuries sustained as a result of the negligence and malpractice of the Defendants on or about the 7th day of March, 2000." Eshkenazi Decl., Ex A.

Pursuant to the Public Health Service Act ("PHS Act"), Mount Vernon Health, as a federally supported health care facility in New York, was deemed to be an employee of the United States Public Health Service ("the PHS"), a Government agency, effective June 23, 1996, for purposes of tort actions seeking damages for personal injury resulting from the performance of medical-related functions. See 42 U.S.C. § 233(a), (g) and (h); Eshkennazi Decl., Ex. B, Declaration of Constance L. Foster, dated May 30, 2003 ("Foster Decl.") at ¶ 5; Id., Ex. 1 ("Deeming Letter").

On May 30, 2003, the Department of Health and Human Services notified the United States Attorney's Office of the Southern District of New York of plaintiff's pending case in state court and requested that it be removed to federal court. Supplemental Declaration of Constance L. Foster, dated October 10, 2003.

On June 12, 2003, James Comey, the United States Attorney for the Southern District of New York certified, pursuant to 28 U.S.C. § 2679(d), that Mount Vernon Health, as an entity, was acting within the scope of its defined employment as an employee of the United States at the time of the incident described in the summons. Mr. Comey further certified that, pursuant to 42 U.S.C. § 233(g), Defendant is deemed to be an employee of the United States of America (the "United States" or the "Government") for purposes of the Federal Tort Claims Act only for any acts or omissions that occurred on or after June 23, 1996. Eshkenazi Decl., Ex. C, Certification of James B. Comey, United States Attorney for the Southern District of New York, dated June 12, 2003.

Upon the June 12, 2003 certification, Defendant removed the action to this Court. The statutory bases for removal, as stated by the Attorney General, were 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2). Specifically, the Attorney General claims that Defendant Mount Vernon Health Qualifies as a Public Health Service employee under 42 U.S.C. § 233(h).

Plaintiff has not filed any administrative claims with the United States Department of Health and Human Services ("HHS"). Foster Decl. at ¶ 4.

Defendant now moves to (1) substitute the United States as Defendant for Mount Vernon Health pursuant to 28 U.S.C. § 2679, and (2) upon substitution, to dismiss this action pursuant to 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.

Plaintiff opposes Defendant's motion and submits a cross-motion seeking remand solely on the basis that the Government failed to timely certify that Mount Vernon Health is an entity deemed to be a federal employee pursuant to 42 U.S.C. § 233.

DISCUSSION

I. Certification and Removal

Section 2679(b)(1) of the Federal Tort Claims Act provides that a suit against the United States is the exclusive remedy for damages for injury or loss of property "resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). This provision provides individual Government officers and employees acting within the scope of their employment with absolute immunity against common law tort claims. See Rivera v. United States, 928 F.2d 592, 608-09 (2d Cir.1991).

The PHS Act, as amended by the Federally Supported Health Centers Assistance Act of 1995, 42 U.S.C. § 201 et. seq. (the "FSHCAA"), and in particular 42 U.S.C. § 233(g), provides that eligible community health centers and their employees are employees of the PHS for certain purposes. The Secretary of Health and Human Services deems a community health center a PHS employee after the center has qualified for certain federal assistance. 42 U.S.C. § 233(g)(1)(A)(G). Once deemed a PHS employee, a community health center enjoys immunity from those acts that relate to its employment, and any actions against it are treated as actions against the United States. 42 U.S.C. § 233(a).

Accordingly, the FSHCAA makes the FTCA "the exclusive remedy for specified actions against members of the Public Health Service," Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.2000), and protects "employees of the Public Health Service from being subject to suit while performing medical and similar functions by requiring that such suits be brought against the United States instead." Id. at 108.

Pursuant to 42 U.S.C. § 233(c), certification by the Attorney General or his designee prompts the removal of a civil action commenced in state court to the United States district court, and "the proceeding is deemed a tort action brought against the United States under the provisions of title 28 and all references thereto." 42 U.S.C. § 233(c). United States Attorneys "are authorized to make the certifications provided for in ... 28 U.S.C. 2679(d) ... and 42 U.S.C. § 233(c) ... with respect to civil actions or proceedings brought against Federal employees in their respective districts." 28 C.F.R. § 15.3(a). The law further provides that upon certification and removal, the "United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2).

In this case, Plaintiff does not dispute that Mount Vernon Health qualifies as a public health center under 42 U.S.C. § 233(h). Nor does she dispute that this Court lacks subject matter jurisdiction over plaintiff's tort claims against the United States because she failed to exhaust her administrative remedies as required by the Federal Tort Claims Act, 28 U.S.C. §§ 1246(b), 2671-80. Instead, Plaintiff contends only that the Government is not entitled to removal because United States Attorney Comey's certification of Mount Vernon Health as an employee of the United States pursuant to 42 U.S.C. § 233, filed over 180 days after Plaintiff filed her summons with notice, was untimely. Plaintiff's Mem. at 2-3; Plaintiff's Reply Mem. at 2-3.

In support of her position, Plaintiff cites to 42 U.S.C. § 233(l), entitled "Timely response to filing of action or proceeding," which states in relevant part:

(1) If a civil action or proceeding is filed in a State court against any entity described in subsection (g)(4) of this section ... the Attorney General, within 15 days after being notified of such filing, shall make an appearance in such court and advise such court as to whether the Secretary has determined under subsections (g) and (h) of this section, that such entity ... is deemed to be an employee of the Public Health Service for purposes of this section with respect to the actions or omissions that are the subject of such civil action or proceeding. Such advice shall be deemed to satisfy the provisions of subsection (c) of this section that the Attorney General certify that an entity ... was acting within the scope of their employment or responsibility.

(2) If the Attorney General fails to appear in State court within the time period prescribed under paragraph (1), upon petition of any entity or ... employee ... of the entity named, the civil action or proceeding shall be removed to the appropriate United States district court. The civil action or proceeding shall be stayed in such court until such court conducts a hearing, and makes a determination, as to the appropriate forum or procedure for the assertion of the claim for damages described in subsection (a) of this section and issues an order consistent with such determination.

Thus, Section 233(l) allows a public health center and/or its employees being sued to remove the case if the Attorney General does not appear within 15 days to advise the Court as to whether such an entity or employee was acting within the scope of employment, and should be deemed a federal employee. See U.S.C. § 233(l)(2). If such a party removes an action pursuant to 42 U.S.C. § (1)(2), the court will conduct a hearing to determine the proper forum for the case. Id.

Plaintiff contends that because its Summons with Notice, filed in State court on September 3, 2002, constituted "notice" to the Government for the purposes of § 233(l), the Government's failure to appear in state court within 15 days resulted in improper certification.¹ Plaintiff further argues that the removal statutory scheme, including 42 U.S.C. § 201 et. seq. and 28 U.S.C. § 1441, mandates that the removal process "not have taken longer than 75 days" Plaintiff's Reply Mem. at 3.² In lieu of granting the Government's motion to dismiss, plaintiff urges that the Court conduct a hearing and make a determination "as to the appropriate forum or procedure for the assertion of the claim for damages" pursuant to Section 233(l)(2). Plaintiff's Mem. at 7. Plaintiff's position arises from her misreading of the relevant statutes.

Section 233(l) does not...