United States District Court, D. Oregon
SAM FRIEDENBERG, personal representative of the estate of MARC SANFORD; DEREK LARWICK, personal representative of the estate of RICHARD BATES; and LORRE SANFORD, an individual, Plaintiffs,
LANE COUNTY, LANE COUNTY MENTAL HEALTH aka LANE COUNTY BEHAVIORAL HEALTH; CARLA AYRES, ERIK MORRIS; FRANCES FREUND; and JULIE RIUTZEL, Defendants.
A. RUSSO UNITED STATES MAGISTRATE JUDGE
move the Court to remand this case to state court asserting
lack of jurisdiction. Pls.' Mot. to Remand 1 (doc.
9). Oral argument was held on April 25, 2018. For the
reasons set forth below, plaintiffs' motion is DENIED.
criminal conviction in Oregon state court, Michael Bryant
(“Bryant”) was referred to a Jail Diversion
Program administered by Lane County Mental Health
(“LCMH”) as a term of his probation. During his
time at LCMH, Bryant was under the care of the individual
defendants. Subsequent to Bryant's release, he committed
three homicides and injured two other individuals. Plaintiffs
here are one of the injured persons and personal
representatives for two of the decedents.
assert LCMH's employees are “deemed” Public
Health Service (“PHS”) employees based on
documentation provided to them by the Secretary of the United
States Department of Health and Human Services
(“HHS”). Defs.' Notice of Removal, Ex. D at 4
(notice of deeming action for 2015) (doc. 1).
Defendants contend this designation affords LCMH employees
the same immunity afforded to PHS employees pursuant to the
Federally Supported Health Centers Assistance Act
(“FSHCAA”). See 42 U.S.C. § 233.
November 13, 2017, plaintiffs filed this action in Oregon
state court serving notice to Lane County and the United
States Attorney's Office for the District of Oregon.
Defs.' Notice of Removal, Ex. A (doc. 1);
Pls.' Mot. to Remand, Ex. A at 21 (doc.
9). Between November 2017 and January 2018,
defendants corresponded with the HHS Office of General
Counsel regarding plaintiffs' state court claim. See
generally, Defs.' Notice of Removal, Exs. F-I
(doc. 1). After requesting documents related to
Bryant's court mandated probation orders, HHS sent emails
advising defendants: (1) their claims were “not
covered” pursuant to the Federal Tort Claims Act
(“FTCA”) and FSHCAA; (2) defendants should
“take whatever action necessary to protect the interest
of [their] client;” and (3) “[t]here [was] no
procedure within the agency to appeal a denial of
coverage.” Defs.' Notice of Removal, Exs. H-I
January 10, 2018, defendants' filed an answer to
plaintiffs' amended complaint in Oregon state court.
Defs.' Notice to Removal, Ex. C (doc. 1). On
January 29, 2018, defendants filed a notice of removal to
federal court. Defs.' Notice of Removal (doc.
1). On February 28, 2018, plaintiffs filed a motion to
remand this action to Oregon state court. Pls.' Mot. for
Remand (doc. 9). Prior to oral argument on the
pending motion, the United States requested leave to file a
statement of interest, which the Court permitted; however,
the United States ultimately declined to participate in oral
argument citing time constraints. See generally,
Minute Order (doc. 17).
defendant may remove an action filed in state court to
federal court if there is diversity or federal question
jurisdiction. 28 U.S.C. §§ 1441(a), 1441(b). Upon a
motion to remand, a federal court may remand a case to state
court for lack of subject matter jurisdiction at any time
before the court issues a final judgment. 28 U.S.C.
§ 1447(c). The party opposing the motion for remand
has the burden of establishing federal jurisdiction.
See Moore-Thomas v. Alaska Airlines, Inc.,
553 F.3d 1241, 1244 (9th Cir. 2009).
broadly assert the Court lacks jurisdiction to resolve this
case because the claims at issue are “purely based on
state common law negligence and there is no diversity between
the parties.” Pls.' Mot. for Remand 2-3 (doc.
9). Essentially, plaintiffs argue this Court lacks
subject matter jurisdiction; and that 42 U.S.C. § 233(a)
does not apply in this case. Id.
to the Public Health Service Act, the exclusive remedy
against PHS employees acting within the scope of their
employment is a tort action against the United States under
the FTCA. See generally, 42 U.S.C. § 233. To
effectuate this provision, Congress provided that
“[u]pon a certification by the Attorney General that
the defendant was acting in the scope of his employment at
the time of the incident out of which the suit arose, any
such civil action . . . commenced in a State court shall be
removed . . . at any time before trial by the Attorney
General . . . and the proceeding deemed a tort action brought
against the United States.” Id. § 233(c).
Specifically, the FSHCAA “created a process by which
‘public and nonprofit private entities' receiving
federal funds pursuant to 42 U.S.C. § 254b(c)(1)(A) and
[the] health practitioners that such entities employ
‘shall be deemed to be [employees] of the Public Health
Service.' 42 U.S.C. § 233(g)(1)(A).”
Lomando v. United States, 667 F.3d 363, 371 (3d Cir.
2011); see also Estrella v. Yahav, 2016 WL
1230555, at *3 (D.N.J. Mar. 29, 2016).
FSHCAA extends protection to “employees” of
public or nonprofit private entities that receive certain
federal health funds, submit an annual application to HHS,
meet certain criteria, and obtain annual approval by the
Secretary of HHS. See 42 U.S.C. § 233(g), (h). Upon
approval of the required application, the Secretary of HHS
“deems” these entities ...