Wilson v. Gottlieb

• Decision Date: 23 September 2011
• Docket Number: Civil Action No. ELH-11-1205
• Parties: GAIL WILSON, Plaintiff, v. DR. DONALD H. GOTTLIEB, et al., Defendants.
• Court: U.S. District Court — District of Maryland

GAIL WILSON, Plaintiff,

v.DR. DONALD H. GOTTLIEB, et al., Defendants.

Civil Action No. ELH-11-1205

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Dated: September 23, 2011

MEMORANDUM OPINION

The United States has filed a Notice of Removal (ECF 1), by which it removed from the Maryland Health Claims Alternative Dispute Resolution Office ("HCADRO") a medical malpractice claim filed by Gail Wilson, plaintiff. In doing so, the Government relied on two statutes: the federal officer removal statute, 28 U.S.C. § 1442, and the removal statute codified in 28 U.S.C. § 2679, a provision of the Federal Tort Claims Act ("FTCA") that is commonly known as the "Westfall Act."¹ Both of these statutes authorize, under certain circumstances, the removal to federal court of a "civil action . . . commenced in a State court." 28 U.S.C. § 1442(a)(1); see also 28 U.S.C. § 2679(d)(2) (authorizing removal of "any civil action or proceeding commenced upon [a certain type of tort] claim in a State court").

The Court, sua sponte, raised the jurisdictional question of whether the HCADRO is a "State court," within the meaning of either statute. On August 17, 2011, after the parties had briefed the issue, the Court held a hearing to consider the issue of subject matter jurisdiction.For the reasons that follow, I conclude that the HCADRO qualifies as a "State court" within the meaning of 28 U.S.C. § 1442, and thus the removal was lawful.

Factual and Procedural Background

This case represents the second iteration of a medical malpractice suit involving Ms. Wilson. In an earlier suit, filed in federal court on August 30, 2010, Wilson alleged that the defendant physicians were professionally negligent in regard to her medical care. See Gail Wilson v. U.S. Dept. of Veterans Affairs, et al., Civ. No. ELH-10-2385 (D. Md.) ("Wilson I"). In particular, she claimed that, on May 29, 2009, a "long piece of surgical tubing" was left "imbedded" in her right foot during surgery to correct a "possible nerve entrapment." Donald H. Gottlieb, M.D., defendant, a physician employed by the federal government at the Veterans Affairs Medical Center in Baltimore, performed the surgery. In addition to Dr. Gottlieb, plaintiff sued Dr. Ngozi Kelech Ezeude, another federally-employed physician, who allegedly treated plaintiff for pain and inflammation at the surgical site following the surgery. Plaintiff also named as defendants the United States Department of Veterans Affairs and the Baltimore VA Medical Center. Although the United States itself was not listed as a defendant in the caption of the complaint, plaintiff identified the United States as "the Defendant" in the complaint's first paragraph. See Wilson I, ECF 1.

The Government moved to dismiss Wilson I, claiming that plaintiff failed to allege that she had filed her claims, accompanied by a certificate of a qualified expert, with the HCADRO. See Wilson I, ECF 9 & 10. The Government argued that, pursuant to the Maryland Health Care Malpractice Claims Act (the "Malpractice Claims Act"), Md. Code (2006 Repl. Vol., 2010 Supp.), §§ 3-2A-01 et. seq. of the Courts & Judicial Proceedings Article ("C.J."), the filing of aclaim and expert certificate with the HCADRO is a condition precedent to maintenance of a medical malpractice action in Maryland. See, e.g., Carroll v. Konits, 400 Md. 167, 172, 929 A.2d 19, 22 (2007). This Court agreed and, on February 8, 2011, I granted the motion to dismiss in Wilson I, without prejudice. Plaintiff was afforded the opportunity to amend her complaint to allege compliance with the conditions precedent. She did not file an amended complaint, however. Accordingly, the Court issued an order closing the case on March 15, 2011. See Wilson I, ECF 11.

Although plaintiff did not amend her complaint in Wilson I, she had, in fact, filed a claim with the HCADRO, on or about January 4, 2011. Then, on May 5, 2011, the United States initiated the present case ("Wilson II") by filing a Notice of Removal (ECF 1), removing the HCADRO proceeding to this Court, pursuant to the federal officer removal statute and the Westfall Act. See 28 U.S.C. §§ 1442(a)(1), 2679(d)(2). Along with its Notice of Removal, the United States filed a copy of plaintiff's "Claim Form," filed in the HCADRO, attached to which was a letter setting forth plaintiff's "Basis of Claim" (ECF 2).² The Claim Form identified three "health care providers": Dr. Gottlieb and Dr. Ezeude, as well as a third physician, Dr. Janette A. Thompson.³ The Basis of Claim reiterated plaintiff's previous allegations of malpractice against Dr. Gottlieb, and alleged that Dr. Thompson unsuccessfully performed a procedure on plaintiff's foot almost three years before the surgery performed by Dr. Gottlieb.⁴ The Notice of Removalidentified three other exhibits: summonses received by Dr. Gottlieb and Dr. Thompson,⁵ and a certification by United States Attorney Rod J. Rosenstein that the three physicians "were acting within the scope of their employment as employees of the United States at the time of the incident out of which plaintiff's claim arose."

On May 13, 2011, before any response to plaintiff's claim was filed by the United States or the three individual physicians,⁶ I issued an Order (ECF 10), inquiring whether the Court possessed subject matter jurisdiction. In particular, I noted that both the federal officer removal statute and the Westfall Act grant removal jurisdiction with respect to a proceeding commenced in a "State court." See 28 U.S.C. §§ 1442(a)(1), 2679(d)(2). Because the HCADRO is an administrative agency in the executive branch of Maryland's state government, it was not clear to me that the HCADRO constituted a "State court" for purposes of removal. Therefore, I directed the parties to brief the issue of subject matter jurisdiction.

Courts have "an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010). With regard to removed cases, 28 U.S.C. § 1447(c) requires: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."

Judge Richard D. Bennett of this Court has previously concluded that whether "removal was improper . . . because the underlying action was pending before a state administrativeagency and not a state court raises [a] jurisdictional defect," which can be considered by the court, sua sponte. Gottlieb v. Lincoln Nat'l Life Ins. Co., 388 F. Supp. 2d 574, 579 & n.3 (D. Md. 2005). Although the Fourth Circuit has not addressed the issue, the Third Circuit has likewise considered, sua sponte, whether removal from a state administrative agency satisfied subject matter jurisdiction. See Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1261 (3d Cir. 1994) ("Although Sun Buick did not contend in its brief that the Board of Vehicles was not a 'court' for purposes of [the removal statute], we raised the issue sua sponte pursuant to our obligation to be assured of our own jurisdiction.").⁷

Plaintiff filed a "Response to Defendant's Notice of Removal" on May 25, 2011, in opposition to defendants' Notice of Removal, asserting that the case was not removed from a state court, and asking the Court to "deny" defendants' Notice of Removal (ECF 14).⁸ The United States filed a memorandum on June 10, 2011 ("Def. Memo.") (ECF 16), arguing that the HCADRO constitutes a "State court" for purposes of the federal officer removal statute and the Westfall Act. In a letter to counsel dated July 27, 2011 (ECF 18), the Court posed several questions for consideration at the hearing on August 17, 2011. Thereafter, plaintiff filed a supplemental submission (ECF 19).

To be sure, not every defect in removal is jurisdictional. A mere "error in the removal process," such as failure of all defendants to join in the removal or failure to remove timely, is not jurisdictional and is waivable by the parties. Payne ex rel. Estate of Caldaza v. Brake, 439 F.3d 198, 203 (4th Cir. 2006); see also Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196-97 (4th Cir. 2008). However, I join Judge Bennett and the Third Circuit in concluding that the requirement of removal from a "State court" is jurisdictional. Unlike mere requirements of timeliness or form, the requirement that a removed case have been pending in a state court goes to the heart of whether the controversy is appropriate for judicial resolution. It is to that issue that I now turn.

Discussion

The federal officer removal statute provides for the removal of a "civil action or criminal prosecution commenced in a State court" against "any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1) (emphasis added). Invocation of the federal officer removal statute is "predicated on the allegation of a colorable federal defense" by the defendant officer. Mesa v. California, 489 U.S. 121, 129 (1989); see Jamison v. Wiley, 14 F.3d 222, 238-39 & n.17 (4th Cir. 1994).

The Westfall Act provides that a tort suit against the United States under the FTCA is the exclusive remedy for a claim of "injury or loss of property, or personal injury or death arising or 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). The Westfall Act's removal provision states, id. § 2679(d)(2) (emphasis added):

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

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