Judge Barbara M. Scheper, Case Number: 21STCV19115, Date: 2023-09-14 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV19115, Date: 2023-09-14 Tentative Ruling

Case Number: 21STCV19115 Hearing Date: September 14, 2023 Dept: 30

Dept. 30

Calendar No.

Blumberger vs. California Hospital Medical Center, et. al., Case No. 21STCV19115

Tentative Ruling re: Defendant’s Petition to Substitute the United States as Defendant

Defendant Ian B. Tilley, M.D. (Defendant) moves for an order deeming Defendant a Public Health Service (PHS) employee under 42 U.S.C. § 233, et seq. and substituting the United States as defendant. The motion is denied.

“When federal employees are sued for damages for harms caused in the course of their employment, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–2680, generally authorizes substitution of the United States as the defendant. Section 233(a) makes the FTCA remedy against the United States ‘exclusive of any other civil action or proceeding’ for any personal injury caused by a PHS officer or employee performing a medical or related function ‘while acting within the scope of his office or employment.’ ” (Hui v. Castaneda (2010) 559 U.S. 799, 801–802.)

Plaintiff commenced this action on May 20, 2021. On July 22, 2021, pursuant to 42 U.S.C. § 233(l)(1), the U.S. Attorney filed a notice in this Court to advise that it was considering whether Defendant was deemed to be an employee of the Public Health Service (PHS) for purposes of 42 U.S.C. § 233. On July 21, 2022, the United States Attorney advised that Plaintiff was deemed not to be a PHS employee for purposes of 42 U.S.C. § 233.

On August 26, 2022, Defendant removed this action to federal court, citing 42 U.S.C. § 233(l)(2) and 42 U.S.C. § 1442(a)(1). Plaintiff and the United States both filed motions to remand. The district court granted the motions to remand on November 2, 2022, finding that Defendant’s Notice of Removal was improper under section 233(l)(2) and untimely under 28 U.S.C. § 1446(b). The district court’s remand order “expressly decline[d] to consider the merits of Tilley’s dispute over the Government’s determination that Tilley does not qualify as a federal officer for purposes of § 1442.

Contrary to Defendant’s argument, Section 233(a) does not allow this Court to grant the requested certification and substitute the United States. Under section 233(a), the remedy against the United States provided by 28 U.S.C. §§ 1346(b) and 2672 is made the exclusive remedy “for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment.” Even assuming the immunity applies, nothing in this provision allows the Court to substitute the United States as defendant in this action. While 28 U.S.C. § 2679(d)(3) allows an employee to challenge the Attorney General’s refusal to certify scope of office or employment before a court and thereafter substitute the United States, Defendant does not purport to rely upon that provision here, and in any case, he has not served the United States as required by that section.

Defendant cites Hui v. Castaneda (2010) 559 U.S. 799, for the statement that “a defendant may make that proof [that the alleged misconduct occurred in the course of the PHS defendant's duties] pursuant to the ordinary rules of evidence and procedure. . . . Thus, while scope certification may provide a convenient mechanism for establishing that the alleged misconduct occurred within the scope of the employee's duties, the procedure authorized by § 2679(d) is not necessary to effect substitution of the United States.” (559 U.S. at 811.) Here, the Supreme Court was responding to the argument that a defendant must obtain scope certification from the Attorney General under the Federal Tort Claims Act (FTCA) prior to invoking section 233 immunity in federal actions: “Respondents first note § 233's lack of a procedure for ‘scope certification’ in federal-court actions. Under the FTCA, ‘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’ transforms an action against an individual federal employee into one against the United States. § 2679(d)(1). Because § 233 does not provide a similar mechanism for scope certification in federal-court actions, respondents contend that PHS defendants seeking to invoke the immunity provided by § 233(a) must rely on the FTCA's scope certification procedure, set forth in § 2679(d).” (Id. at 810.)

To the extent that Defendant seeks to prove his section 233 immunity to dismiss this action, the Court agrees with Plaintiff that Defendant’s petition would be an improper motion for summary judgment. Furthermore, the above discussion in Hui is inapplicable here because section 233 does provide a procedure for substitution of the United States in state court actions. Under subdivision (c), if the Attorney General certifies “that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose,” any civil action commenced in State court shall be removed by the Attorney General to the proper district court “and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references.” (§ 233(c).) The availability of alternative procedures for substitution under section 233 explains the statement in Hui that “the procedure authorized by § 2679(d) is not necessary to effect substitution of the United States” (Id. at 811), and is more plausible than Plaintiff’s suggestion that section 233(a) impliedly allows for substitution of the United States despite containing no express language to that effect. The Attorney General did not certify that Defendant was acting in the scope of his employment, and the procedures under section 233 do not provide this Court discretion to substitute the United States regardless. Accordingly, the motion is denied.