McLaurin v. U.S.

• Decision Date: 02 December 2004
• Docket Number: No. 04-60163.,04-60163.
• Citation: 392 F.3d 774
• Parties: Shirley McLAURIN, Individually and on Behalf of the Heirs of Milton Stubbs, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

392 F.3d 774

Shirley McLAURIN, Individually and on Behalf of the Heirs of Milton Stubbs, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 04-60163.

United States Court of Appeals, Fifth Circuit.

December 2, 2004.

Suzanne Griggins Keys (argued), Byrd, Martin & Gibbs, Jackson, MS, for Plaintiff-Appellant.

David Harrison Fulcher (argued), Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Shirley McLaurin ("McLaurin"), individually and on behalf of the heirs of Milton Stubbs, appeals the district court's denial of her motion to remand and the dismissal of her suit for failure to exhaust administrative remedies. The district court ruled that defendant-appellee United States of America (the "government") timely removed the suit and that McLaurin failed to exhaust her administrative remedies under the Federal Tort Claims Act ("FTCA").¹ We affirm.

I. FACTS AND PROCEEDINGS

In January 1996, Milton Stubbs ("Stubbs") was taken to the emergency room at Forrest General Hospital ("FGH") in Hattiesburg, Mississippi, complaining of chest pain. As Stubbs was a patient of the Family Health Center ("Health Center")² in Sumrall, Mississippi, FGH called Dr. Saad Khan ("Khan"), who worked for the FHC, to treat Stubbs.

When Dr. Khan discovered that Stubbs had a condition that could inhibit blood clotting, he admitted Stubbs to FGH. During the night, Stubbs fell in the bathroom of his room. The next day, Khan noticed a bump on Stubbs's head but allegedly ordered no specific tests to assess the extent of the injury. Neither did Khan return to examine Stubbs before FGH discharged him that afternoon. The discharge papers, completed by FGH nurses, noted the bump on Stubbs's head, as well as a small puncture wound.

Two days later, Stubbs returned to FGH. Dr. Khan ordered a CAT scan because Stubbs appeared disoriented. The CAT scan revealed a subdural hematoma. Doctors performed surgery on Stubbs to stop the hematoma. Further bleeding occurred, however, and Stubbs died.

In November, McLaurin filed a wrongful death suit in state court against FGH, Khan, and three FGH nurses, on behalf of herself and Stubbs's heirs under Mississippi Code Annotated § 11-7-13. Dr. Khan retained counsel, and pretrial discovery began, during which Dr. Khan provided proof of private medical malpractice insurance coverage through St. Paul Insurance Company.

The case was set for trial against Dr. Khan on July 29, 2002.³ On the eve of trial, the judge recognized Dr. Khan and recalled that he had once been a patient of Dr. Kahn. The judge offered to recuse himself if either party objected. McLaurin's counsel objected, and the judge recused himself.

The parties then attempted to set a trial date with the new judge to whom the case had been assigned. In August 2002, six years after McLaurin had filed suit, Dr. Khan notified the United States Department of Health and Human Services ("DHHS") of McLaurin's suit against him and requested that he (Dr. Khan) be certified as an employee of the United States on the grounds that the Health Center receives federal funds.⁴ The DHHS reviewed the referral and determined that Dr. Khan was entitled to certification as a government employee. In October 2002, the DHHS referred the matter to the United States Attorney for the Southern District of Mississippi.

In February 2003, the government certified that Dr. Khan was acting within the scope of his office or employment at the time of the Stubbs incident and removed the case to the district court under 29 U.S.C. § 2679(d)(2). The government then filed a Notice of Substitution and Motion to Amend Caption of Case under Section 2679(d)(2), seeking to substitute the government as the proper party defendant with respect to the claims against Dr. Khan. The district court granted the motion, substituted the government as the proper party defendant, and dismissed Dr. Khan with prejudice.

In March 2003, McLaurin filed a Motion to Remand, in which she asserted that Dr. Khan had waived his right to removal under Section 2679(d)(2) by failing to furnish the government prompt notice of the suit. In April, the government filed a Motion to Dismiss for failure to exhaust administrative remedies. After two hearings on the motions, the district court denied McLaurin's motion to remand and granted the government's motion to dismiss without prejudice for lack of subject matter jurisdiction, based on McLaurin's failure to exhaust her administrative remedies under the FTCA. McLaurin timely filed her notice of appeal.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's denial of a motion to remand.⁵

B. The FTCA

Section 2679 of the FTCA 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 conduct of any employee of the Government while acting within the scope of his office or employment."⁶ The Federally Supported Health Centers Assistance Act of 1995 ("FSHCAA") extends FTCA coverage to employees of the Public Health Service ("PHS"). Under the FSHCAA, the PHS may deem employees of qualified and eligible community health care centers as government employees entitled to immunity under the FTCA.⁷ Once the PHS deems an employee of a qualified community health care center to be a PHS employee, the employee enjoys absolute immunity from common law tort claims, and an injured party's exclusive remedy is against the government under the FTCA.⁸ In short, the FSHCAA makes the FTCA the exclusive remedy for actions against employees of the PHS "resulting from the performance of medical ... or related functions"⁹ and "protects commissioned officers or employees of the [PHS] from being subject to suit while performing medical and similar functions by requiring that such lawsuits be brought against the United States instead."¹⁰

Once the PHS deems the employee a federal employee, the government must determine whether the "employee was acting within the scope of his office or employment at the time out of which the incident arose," and must so certify if the employee is found to have been thus acting.¹¹ If scope certification is made, the FTCA allows the government to remove the suit against the employee to federal court and substitute the government as the proper party defendant.¹² The dispute here concerns whether the government timely removed this action to federal court under Section 2679. McLaurin does not challenge the government's determination that the Health Center is a qualified community health care center or that Dr. Khan — as an employee of the Health Center — is a federal employee for purposes of Section 2679. Neither does McLaurin dispute that Dr. Khan was acting within the course and scope of his employment at the time of the incidents alleged in her complaint. Her sole complaint is timeliness.

McLaurin argues that the government waived its right to removal because Dr. Khan failed to notify it promptly of McLaurin's suit against him. McLaurin cites to Section 2679(c) as support for this proposition:

The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him ... to his immediate superior... and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.¹³

McLaurin argues that because Section 2679(c) requires that a federal employee "promptly furnish copies of the pleadings and process" to the government, and because Dr. Khan failed to do so, he — and thus the government — waived the right to remove this suit to federal court. In effect, McLaurin argues that Section 2679(c) is a condition precedent to removal under Section 2679(d)(2).

The government counters with the argument that Section 2679(d)(2) merely requires removal "before trial." The government relies on the language of Section 2679(d)(2):

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim 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 for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provision of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope or office of employment for purposes of removal.¹⁴

Similarly, the government notes that the FSHCAA provides that "any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial...."¹⁵ The government contends that because it removed this matter before trial, it fulfilled the only statutory prerequisite to removal.

The unambiguous language of Section 2679(d)(2) requires only that the government remove "before trial" a suit in which the PHS has deemed a qualified health care center employee as a federal employee.¹⁶ Congress has placed no other time limitation or requirement on removal in a suit under Section 2679.¹⁷ "[T]he...