El Rio Santa Cruz Neigh. v. U.S. Dept. of Health

• Citation: 396 F.3d 1265
• Decision Date: 08 February 2005
• Docket Number: No. 04-5089.,04-5089.
• Parties: EL RIO SANTA CRUZ NEIGHBORHOOD HEALTH CENTER, INC., et al., Appellees, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES and Tommy G. Thompson, Secretary, Department of Health and Human Services, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

396 F.3d 1265

EL RIO SANTA CRUZ NEIGHBORHOOD HEALTH CENTER, INC., et al., Appellees, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES and Tommy G. Thompson, Secretary, Department of Health and Human Services, Appellants.

No. 04-5089.

United States Court of Appeals, District of Columbia Circuit.

Argued November 5, 2004.

Decided February 8, 2005.

Appeal from the United States District Court for the District of Columbia (No. 03cv01753).

Howard S. Scher, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Jeffrey S. Bucholtz, Deputy Assistant Attorney General, and Robert S. Greenspan, Attorney.

James L. Feldesman argued the cause for appellees. With him on the brief were Khatereh S. Ghiladi and Robert A. Graham.

Before: HENDERSON and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge.

The Federally Supported Health Centers Assistance Act of 1995 ("FSHCAA"), Pub.L. No. 104-73, 109 Stat. 777 (codified as amended at 42 U.S.C. § 233), makes federally-funded community health centers and their employees, officers, and individual contractors eligible for medical malpractice coverage under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (2000), to the same extent as federal employees of the United States Public Health Service. See 42 U.S.C. § 233(g). The El Rio Santa Cruz Neighborhood Health Center, Inc. ("the Center") in Arizona and physicians before the court provide obstetric and gynecological services for patients of the Center. As a non-profit clinic that receives federal funds, the Center receives professional liability coverage from the federal government pursuant to the FSHCAA. See id. When the physicians were sued in the Arizona State court for malpractice, the Center notified the United States Department of Health and Human Services ("HHS") of the suit and submitted information for a determination of the physicians' coverage under the FTCA. HHS denied the physicians coverage because they had contracted with the Center through their professional corporations. Joined by the Center, the physicians filed a separate lawsuit challenging the denial of coverage under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and the district court ruled in their favor.

HHS appeals the grant of summary judgment to the Center and the physicians, challenging both the district court's jurisdiction under the APA and its findings that HHS failed to examine relevant evidence, namely the physicians' separate guarantees to the Center of their personal performance, and to treat similar cases similarly. Upon de novo review, we hold that the district court had jurisdiction of the APA claim because the removal remedy under the FSHCAA was not an adequate remedy that precluded APA review, and that HHS was arbitrary and capricious in failing to address evidence before it in concluding that the physicians were ineligible for medical malpractice coverage pursuant to the FSHCAA. Accordingly, we affirm the grant of summary judgment remanding the matter to HHS.

I.

A.

Under the FTCA, 28 U.S.C. §§ 1346(b), 2672-80, and Public Health Service Act ("PHSA"), 42 U.S.C. § 233 (2000), Congress protected officers and employees of the Public Health Service from personal liability for the negligent or wrongful act or omission while acting within the scope of their employment by providing that the United States may assume any such liability. 28 U.S.C. § 2672. In enacting the FSHCAA, 42 U.S.C. § 233(g), Congress extended FTCA coverage for Public Health Service employees to public or non-profit private entities receiving federal funds under the PHSA, 42 U.S.C. § 254b, and to their officers, board members, employees, and contractors who are physicians or other licensed or certified health care practitioners, and meet certain criteria. Id. § 233(g)(1)(A); see id. § 233(e), (h), (i). Upon approval by the HHS Secretary of an application, such individual is "deemed to be an employee of the Public Health Service." Id. § 233(g)(1)(F). The Attorney General, upon notice from a deemed defendant, shall defend against, or compromise, civil actions or proceedings for such damage or injury. Id. § 233(b), (d). The remedy against the United States, as relevant here, for "damages for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions ... by any commissioned officers or employee of the Public Health Service" is "exclusive." Id. § 233(g)(1)(A). Congress enacted the FSHCAA to relieve publicly funded health centers of the burden of rising malpractice insurance costs. H.R.Rep. No. 104-398, at 5-6 (1995), reprinted in 1995 U.S.C.C.A.N. 767, 769; H.R.Rep. No. 102-823(II), at 5-6 (1992).

In order to be considered for FTCA coverage, a health center must submit an application to the HHS Secretary verifying that the health center, and the appropriate officer, board member, employee, or contractor of the health center, meet FSHCAA requirements. 42 U.S.C. § 233(g)(1)(D); see id. § 233(g)(1)(B)-(C), (h). The Secretary is required to determine within 30 days of receipt of the application whether the applicant is to be deemed covered by the FTCA. Id. § 233(g)(1)(E). Once the Secretary has determined that an applicant is covered, this determination is final and binding upon the Secretary, Attorney General, and other parties to a civil action or proceeding. Id. § 233(g)(1)(F). However, the Attorney General, in consultation with the Secretary, and after notice and opportunity for a hearing, may determine, based on five criteria, that covering an individual health care professional "would expose the Government to an unreasonably high degree of risk of loss," and that the individual "shall not be deemed to be an employee of the Public Health Service" for FSHCAA purposes. Id. § 233(i).

Once a civil action or proceeding is filed in state or local court against a public health or non profit entity or its officers or employees or contractors, the statute provides for two circumstances in which the case can be removed to the federal district court. First, if the Attorney General appears in state or local court within 15 days after being notified of the filing of the case and advises that the Secretary has deemed the defendant to be a Public Health Service employee, the case shall be removed to the federal district court. Id. § 233(l)(1); see id. § 233(c). Second, if the Attorney General fails timely to appear, the case shall be removed to federal district court upon petition by a defendant. Id. § 233(l)(2). The case then shall be stayed until the district court conducts a hearing and determines the appropriate forum or procedure for the assertion of the claim. Id.

B.

The undisputed facts are that in January 2002, the physicians were sued for medical malpractice by Sergio Puig and others ("plaintiffs") in State court in Arizona. The complaint and summonses were served on the physicians on July 17, 2002. By letter of January 23, 2003 ("Gianturco letter"), Elizabeth Jordan Gianturco, Chief of the Claims and Employment Branch, denied El Rio's request for representation pursuant to the FSHCAA "because [the individual physicians] cannot be deemed employees of the Public Health Service because their contracts were between the health center and a professional corporation," and therefore did "not meet the criteria under the FSHCAA for coverage under the [ ] FTCA."

On March 21, 2003, the physicians removed the malpractice action to the federal district court in Arizona pursuant to 28 U.S.C. § 1441 and 42 U.S.C. § 233. They filed two pleadings on May 14, 2003 in the Arizona district court. The first was a complaint for declaratory and injunctive relief that they were covered by the FTCA. The second was a petition pursuant to 42 U.S.C. § 233(l)(2) for determination of their FTCA coverage. On June 5, 2003, the Arizona federal district court ruled that the physicians' notice of removal was untimely and remanded the case to the State court; the court also ruled that the remand rendered the complaint for declaratory and injunctive relief moot.

On August 18, 2003, the physicians and the Center (hereinafter "the physicians") filed a complaint for declaratory and injunctive relief against HHS and its Secretary under 28 U.S.C. §§ 1331, 1346(a), 1361, and the APA, 5 U.S.C. §§ 701-06 in the district court in the District of Columbia. Ten days later they filed in the Arizona State court a motion to dismiss the malpractice lawsuit for lack of subject matter jurisdiction on the ground that the plaintiffs had admitted the physicians' status as federal employees. The Arizona State court, on October 7, 2003, denied the physicians' motion to dismiss, and, according to the parties' briefs, stayed the malpractice action pending resolution of their APA claim in federal court in the District of Columbia.

On January 15, 2004, the district court in the District of Columbia ruled that it had federal question jurisdiction under 28 U.S.C. § 1331 to entertain the physicians' challenge to HHS's coverage determination, and that no statute barred its review under the APA of the negative coverage decision. On the merits, the district court granted the physicians' motion for summary judgment and remanded for want of reasoned decisionmaking. The court reversed HHS's refusal to deem the physicians as Public Health Service employees, which contradicted HHS's position in a similar case, because HHS had ignored each physician's contractual liability as guarantors.

On appeal, HHS challenges the grant of summary judgment to the physicians on three principal grounds, each of which the physicians dispute. Our review is de novo. See DBI Architects v. Am. Express Travel-Related Servs. Co., ...