McLaurin v. United States

United States Court of Appeals
Fifth Circuit

FILED
Revised December 20, 2004 December 2, 2004

IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT

No. 04-60163

SHIRLEY McLAURIN, Individually and on
Behalf of the Heirs of MILTON STUBBS,
Deceased

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

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

1
28 U.S.C. § 2671, et seq.
2
It is unclear from the record whether this entity is the
Family Health Center or the Southeast Mississippi Rural Health
Initiative, Inc. For purposes of this opinion, we refer to it as
the “Health Center.”

2
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

3
FGH settled with McLaurin before trial, and the state court
dismissed the FGH nurses before trial under the Mississippi Tort
Claims Act.
4
The DHHS had deemed the Health Center as an entity eligible
for medical malpractice coverage under the FTCA. See 42 U.S.C. §
233(h).

3
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

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 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

5
Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638
(5th Cir. 2003). McLaurin does not dispute that she failed to
exhaust her administrative remedies under the FTCA.
6
28 U.S.C. § 2679(b)(1).
7
42 U.S.C. § 233(g)(1)(A) & (G).
8
See id. § 233(g)(1)(A).

5
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.

9
See id. § 233(a).
10
Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000).
11
28 U.S.C. § 2679(d)(1)-(3).
12
Id. § 2679(d)(1)-(2).

6
 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

13
28 U.S.C. § 2679(c) (emphasis added).

7
 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

14
See id. § 2679(d)(2) (emphasis added).
15
42 U.S.C. § 233(c)(emphasis added).
16
28 U.S.C. § 2679(d)(2).
17
See, e.g., Sullivan v. United States, 21 F.3d 198, 205-06
(7th Cir. 1994) (noting that “at any time before trial” is only
temporal limitation on certification procedure and that “we believe
it would be unfair in these circumstances to impose a deadline for
section 2679(c) notice that the Act itself does not impose.”);
Guerrero v. Alivio Med. Ctr., Inc., No. 03 C 2492, 2003 WL
21688240, at * 1 (N.D. Ill.) (noting that requirement under 28
U.S.C. § 1446(b) that defendant file removal notice within thirty
days of receipt of initial pleading does not apply to suits removed

8
starting point in every case involving construction of a statute is

the language itself.”18 Indeed, “Congress is not to be presumed to

have used words for no purpose.”19 Congress explicitly allows

removal under Section 2679(d)(2) to occur “at any time before

trial.”20

McLaurin asserts that to interpret the statute to allow

removal at any time before trial is to read the word “promptly” out

of Section 2679(c). This is not so. It is true that Dr. Khan

failed to deliver the suit papers to his supervisor immediately.

It is also true, however, that —— in the statute —— “promptly”

modifies the actions that the supervisor must take when he delivers

under Section 2679(d)(2) because suit may be removed “at any time
before trial”); Perry v. United States, 936 F. Supp. 867, 878 (S.D.
Ala. 1996) (“The FTCA . . . states that the United States may
remove a case at any time before trial; there are no other
requirements for or limitations on the removal of a case under §
2679(d)(2); Wilson v. Jones, 902 F. Supp. 673, 677-78 (E.D. Va.
1995) (finding that removal was timely because “the state
proceeding ha[d] not gone to trial”); Kizer v. Sherwood, 311 F.
Supp. 809, 811 (M.D. Pa. 1970) (finding that removal under Section
2679 was timely even after entry of default judgment in state court
because parties could still proceed to trial on damages and such
trial had not yet begun).
18
United States v. Mathena, 23 F.3d 87, 91 (5th Cir. 1994)
(quoting Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322,
330 (1978)).
19
Platt v. Union Pac. R.R. Co., 99 U.S. 48, 58 (1878).
20
Although McLaurin and Dr. Khan were on the eve of trial when
the original state judge recused himself, the government removed
this suit and moved to dismiss McLaurin’s complaint for failure to
exhaust before the parties proceeded to trial in state district
court.

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the suit papers to the government.21 It is the supervisor, not the

employee, who must “promptly” deliver the suit papers to the

government. As the government correctly notes, the statute

mandates only that “the employee . . . 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 supervisor or

the person designated to receive such paperwork.22 This language

authorizes the government to determine the time within which the

employee must deliver the suit papers to his supervisor.

McLaurin correctly notes that 28 C.F.R. § 15.1 requires the

employee to deliver the suit papers promptly to his supervisor.

Section 15.1 provides:

Any Federal employee against whom a civil action or
proceeding is brought for damages . . . on account of the
employee’s performance of medical care, treatment, or
investigation in the scope of his office or employment .
. . shall promptly deliver all process and pleadings
served upon the employee . . . to the employee’s
immediate superior . . . In addition, upon the employee’s
receipt of such process or pleadings, or any prior
information regarding the commencement of such a civil
action or proceedings, he shall immediately so advise his
superior or the designee thereof by telephone or
telegraph.23

We conclude, though, that the statutory and regulatory provisions

on timeliness —— the use of the term “promptly” in both Sections

2679(c) and 15.1 —— do not inure to the benefit of tort plaintiffs

21
See 28 U.S.C. § 2679(c).
22
Id.
23
28 C.F.R. § 15.1(a).

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but to the benefit of the government, which, under both provisions,

waives its sovereign immunity and runs the risk of incurring a

judgment once it certifies the employee as a federal employee. As

the FTCA is a waiver of the government’s sovereign immunity, we

must strictly construe the statute; any ambiguities will be

resolved in favor of the sovereign.24 There is nothing in the

statute or the regulation to indicate that the “prompt” delivery

requirement is a condition precedent to removal or that, absent a

“prompt” delivery, the government waives its right to removal.

Further, our conclusion that the statutory requirements inure to

the government’s benefit is buttressed by the language in Section

2679(c), which allows the Attorney General to determine the time

within which the employee must deliver the suit papers to the

government.25 Accordingly, we construe the statute as urged by the

government and rule that the “prompt” delivery requirement inures

to its benefit, and not that of the plaintiff.26 The district

24
See Lane v. Pena, 518 U.S. 187, 192 (1996); Leleux v. United
States, 178 F.3d 750, 754 (5th Cir. 1999); Linkous v. United
States, 142 F.3d 271, 275 (5th Cir. 1998).
25
28 U.S.C. § 1679(c) (“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 . . . .”).
26
McLaurin also appears to argue that Dr. Khan waived
entitlement to FTCA coverage by not “promptly” delivering the suit
papers to either his employer or the government. Several courts
have discussed whether a federal-employee defendant waives
entitlement to coverage under the FTCA by failing to satisfy
conditions precedent to coverage under Section 2679. Federal and
state courts that have addressed this issue routinely hold that a

11
court did not err when it concluded that the government timely

removed this suit under Section 2679(d)(2).27

C. Private Medical Malpractice Insurance

McLaurin also argues that Dr. Khan waived entitlement to

coverage under the FTCA because he is covered by private medical

malpractice insurance. McLaurin notes that the basic purpose of

defendant waives entitlement to coverage under the FTCA only if he
completely fails to comply with the provisions of Section 2679(c).
See, e.g., Combs v. United States, 768 F. Supp. 584, 592 (E.D. Ky.
1991) (noting that because defendant and his insurer failed to
assert Section 2679 defenses or deliver suit papers to Government,
plaintiffs could recover against defendant personally as well as
against United States under theory of respondeat superior); Tassin
v. Neneman, 766 F. Supp. 974, 976-77 (D. Kan. 1991) (noting that
because defendant failed to deliver process and pleadings to
attorney general and to obtain attorney general certification, “the
defendant has failed to satisfy the statutory prerequisites, in
effect waiving the immunity granted by the Act, and therefore the
immunity defense is invalid.”); Jones v. Littlejohn, 474 S.E.2d
714, 715-16 (Ga. Ct. App. 1996) (noting that because the defendant
failed to deliver suit papers to supervisor and failed to obtain
Government certification, exclusivity provision not triggered, and
state court retained jurisdiction over suit); Brennan v. Fatata, 78
Misc.2d 966, 967, 359 N.Y.S.2d 91, 92 (N.Y.Sup. Ct. 1974)(“If the
defendants are to obtain the benefits of the Federal preemption of
section [2679], they must follow its provisions by turning suit
papers over to the United States Attorney General . . . who will
then certify the scope of Federal employment and the action will be
removed to Federal court . . . It is implicit in the statute that
if the defendants do not turn over their suit papers. . . the State
action continues against the defendants personally.”). These cases
are inapposite. In them, the defendants failed completely to follow
the procedural framework under Section 2679 to obtain
coverage/immunity under the FTCA. Here, Dr. Khan delivered the
suit papers to the government —— albeit eventually —— and the
government certified Dr. Khan as acting within the scope of
employment.
27
Indeed, we have previously held that remand is not even
permitted once the government certifies the scope of employment and
removes the suit under Section 2679(d)(2). See Garcia v. United
States, 88 F.3d 318, 322 (5th Cir. 1996).

12
the FSHCAA is to extend the coverage protections of the FTCA to

public health care providers by operating as their de facto medical

insurer.28 McLaurin argues that Dr. Khan’s coverage by private

medical malpractice insurance amounts to a waiver of FTCA coverage

because it undermines the statutory purpose of the FSHCAA.

McLaurin cites to no authority to support this imaginative

argument.

That the purchase of private medical malpractice insurance is

a waiver of FTCA coverage is belied by the explicit language of the

FSHCAA itself. Section 233(g)(2) provides that

[i]f, with respect to an entity or person deemed to be an
employee for purposes of paragraph (1), a cause of action
is instituted against the United States pursuant to this
section, any claim of the entity or person for benefits
under an insurance policy with respect to medical
malpractice relating to such cause of action shall be
subrogated to the United States.29

The FSHCAA thus envisions that a physician might be covered by

private medical malpractice insurance even though the PHS might, at

some point, deem him to be a federal employee for purposes of the

FTCA. Indeed, under the explicit language of Section 233(g)(2), the

benefits of private medical malpractice insurance inures to the

28
See H.R. REP. NO. 104-398, at 4-8 (1995), reprinted in 1995
U.S.C.C.A.N. 767, 769-71 (providing legislative intent of FSHCAA);
see also H.R. Rep. No. 102-823(II), at 6 (1992) (providing that
FTCA coverage extended to allow federally funded health care
centers to “redirect funds now spent on malpractice insurance
premiums toward improving or expanding their services to their
target populations.”).
29
42 U.S.C. § 233(g)(2).

13
government’s benefit because the government is subrogated to any

rights that Dr. Khan may have to recover from St. Paul Insurance

Company. To find that a medical practitioner such as Dr. Khan

cannot obtain private medical malpractice insurance —— or, in so

doing, waives entitlement to coverage under the FTCA —— would

detrimentally affect those practitioners who work at federally-

funded institutions. If a medical practitioner such as Dr. Khan

cannot obtain private medical malpractice insurance, he practices

medicine at his own risk, because the PHS will not deem a physician

a federal employee until after suit is filed against him.30 We

reject this argument.

D. Equitable Considerations

Finally, McLaurin inists that the “extremely untimely removal

of this case is not consistent with the traditional equitable

considerations that inform judicial construction of the FTCA.” She

notes that circuit and district courts have applied equitable

doctrines to the FTCA.31 McLaurin thus argues that equitable

30
See El Rio Santa Cruz Neighborhood Health Ctr. v. Dep’t of
Health & Human Servs., 300 F. Supp. 2d 32, 37 n. 4 (D.D.C. 2004)
(“Though not directly at issue in this lawsuit, this policy [of
deeming a physician a federal employee within 30 days of receipt of
the application] contributed, if not created, the problem
plaintiffs now face, and completely undermines the purpose of the
Act, since the contractors/physicians cannot know if they are
covered until after they are sued, and thus, they proceed at their
own risk if they forego obtaining their own malpractice insurance.”
(emphasis added)).
31
See, e.g., Mottley v. United States, 295 F.3d 820, 823-24
(8th Cir. 2002) (“We apply the doctrine of equitable tolling to
FTCA claims against the government.”); Perez v. United States, 167

14
considerations require remand here because of the government’s

unpardonable dilatoriness.

We do not agree that equitable considerations require remand

in this instance. The FTCA imposes a two-year statute of

limitations on suits against the government.32 Nevertheless,

Congress has provided that a plaintiff whose case is dismissed

without prejudice for failure to exhaust administrative remedies

may file an administrative claim within 60 days following

dismissal.33 This provision “insures [sic] that a plaintiff . . .,

though no doubt inconvenienced, will not be prejudiced by her

failure to first file an administrative claim with the appropriate

federal agency within the two-year time period.”34

F.3d 913, 917 (5th Cir. 1999) (noting that equitable tolling
applies in FTCA cases).
32
28 U.S.C. § 2401(b) (“A tort claim against the United States
shall be forever barred unless it is presented in writing to the
appropriate federal agency within two years after such claim
accrues . . . .”).
33
See 28 U.S.C. § 2679(d)(5)(A)-(B) (“Whenever an action or
proceeding in which the United States is substituted as the party
defendant under this subsection is dismissed for failure first to
present a claim pursuant to section 2675(a) of this title, such a
claim shall be deemed to be timely presented under section 2401(b)
of this title if . . . the claim would have been timely had it been
filed on the date the underlying civil action was commenced, and
the claim is presented to the appropriate Federal agency within 60
days after dismissal of the civil action.”).
34
Warner v. Joyner, 996 F. Supp. 581, 584 (S.D. Miss. 1997);
see also Jackson v. United States, 789 F. Supp. 1109 (D. Colo.
1992) (refusing to waive filing of administrative claim because
procedures established by FTCA constitute waiver of sovereign
immunity and must therefore be strictly construed).

15
 Stubbs died in January 1996. McLaurin sued Dr. Khan in

November, well within the two-year statute of limitations. Her

administrative claim would therefore have been timely had she filed

it in November 1996. The district court dismissed McLaurin’s suit

without prejudice. If McLaurin files an administrative claim

within 60 days of dismissal, it will be timely. Although we are

not indifferent to McLaurin’s frustration, we are satisfied that

Congress has provided plaintiffs such as McLaurin an adequate

remedy. Equitable considerations do not warrant remand here.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is, in all respects,

AFFIRMED.

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