Kathy Allen, individually and as mother and next friend of her baby son who suffered intrauterine death at 35 weeks of gestation, whose name in this complaint will be Dakota Allen v. Kyle P. Christenberry, Dr., W. Newton Godfree, Dr., QHG of Gadsen I

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
No. 02-13283 ELEVENTH CIRCUIT
____________________________ APRIL 16, 2003
D. C. Docket No. 01-02992-CV-PT-M THOMAS K. KAHN
CLERK

KATHY ALLEN,
individually and as mother and
next friend of her baby son who
suffered intrauterine death at
35 weeks of gestation, whose
name as used in this complaint
will be Dakota Allen,

Plaintiff-Appellant,

versus

KYLE P. CHRISTENBERRY, Dr.,
W. NEWTON GODFREE, Dr.,
QHG OF GADSDEN INC.,
d.b.a. Gadsden Regional Medical Center,
EMCARE, INC.,
VERNON JOHNSON, M.D.,

Defendants-Appellees.
____________________________
Appeal from the United States District Court
for the Northern District of Alabama
____________________________
(April 16, 2003)
Before CARNES, HULL and ALARCON*, Circuit Judges.

CARNES, Circuit Judge:

This appeal stems from a medical malpractice lawsuit filed in state court by

Kathy Allen against Dr. Kyle Christenberry and Dr. W. Newton Godfree. The

defendant doctors removed the case to federal court ten days before the trial in

state court was scheduled to begin, on the asserted ground that they were federal

employees under the Federally Supported Health Centers Assistance Act of 1995

(FSHCAA), Pub. L. No. 104-73, 109 Stat. 777 (1995) (codified at 42 U.S.C. §

233). Allen moved the federal district court to remand the case to state court, but

it denied her motion, concluding that the defendant doctors had properly removed

the case and that they were entitled to the protections of 42 U.S.C. § 233(a). We

disagree, because the FSHCAA provides specific prerequisites for removal of a

case under its provisions, and they were not met in this case. For that reason, we

will reverse the judgment of the district court and instruct it to remand the case to

state court.

*
Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

2
 I.

During her pregnancy in 1996, Kathy Allen received prenatal care from

Etowah Quality of Life, Inc. (“the Etowah Center”), a federally funded community

health center. The Etowah Center has been deemed by the Department of Health

and Human Services (HHS), in accordance with the FSHCAA, to be eligible for

coverage under the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346(b)(1);

42 U.S.C. § 233(a), (g)(1)(A). Approximately 34 to 35 weeks into her pregnancy,

Allen was diagnosed with premature rupture of the fetal membranes and received

care from Drs. Christenberry and Godfree at Gadsden Regional Medical Center.

They provided services to her under a contract with the Etowah Center.1 After that

treatment, an ultrasound test revealed that the baby had died in utero.

Allen filed a medical malpractice action against Drs. Christenberry and

Godfree and several other defendants on June 6, 1997, in state court in Etowah

County, Alabama. The defendant doctors moved to dismiss the case on the ground

1
The parties dispute whether the contract was between the Etowah Center and Drs.
Christenberry and Godfree as individuals or between the Etowah Center and the professional
corporation for which they work. Only if the contract was with the two doctors as individuals
can they be deemed employees of the Public Health Service under 42 U.S.C. § 233(g)(1)(A). See
Dedrick v. Youngblood, 200 F.3d 744, 746 (11th Cir. 2000) (holding §§ 233(g)(1)(A) and (g)(5)
require a contractor be an individual who contracts directly with an eligible entity instead of
through his employer). We need not resolve this dispute, because we conclude that even if the
contract was with the two doctors as individuals, the case was not properly removed from state
court under the FSHCAA.

3
that the state court did not have jurisdiction over the claims against them because

they were federal employees whose actions in providing care and treatment to

Allen were covered by the FTCA. The state court denied their motion on January

16, 1998, and discovery in the case proceeded. On April 24, 2001, the state court

set a trial date of November 26, 2001.

Drs. Christenberry and Godfree made some early ineffective attempts to

have HHS or the Department of Justice defend the suit. On July 1, 1997, Wayne

Rowe, the chief executive officer of the Etowah Center, forwarded Allen’s

complaint to the Office of the General Counsel of HHS and requested that it move

to dismiss the two doctors as named defendants or otherwise defend the suit on

their behalf. On July 17, 1997, Elizabeth Gianturco, the chief of HHS’s Litigation

Branch, requested additional information from Rowe and asked that he also send

the information to Roger Einerson in the Torts Branch of the Department of

Justice. Gianturco advised Rowe that before it could request that the Department

of Justice represent the defendant doctors, HHS needed to determine whether the

doctors were covered under the FTCA and were working within the scope of their

employment. On August 4, 1997, Rowe sent the requested documentation to

Gianturco and indicated a copy to Einerson. Several months later, on November

12, 1997, counsel for the defendant doctors sent a letter to the FTCA Coordinator

4
of the Public Health Service (PHS) and enclosed a copy of the complaint, their

motion to dismiss, and Allen’s response to the motion to dismiss. The record does

not contain evidence of any other contact or attempted contact between the two

doctors and HHS, or between them and the Department of Justice, during the four

year period from November 12, 1997 to November 16, 2001.

On November 16, 2001, over four years from the date of the last letter to

PHS on behalf of Drs. Christenberry and Godfree, and only ten days from the

scheduled start date of the trial in state court, the two doctors sent a letter to

Jeffrey Axelrad, Director of the Torts Branch at the Department of Justice. They

requested that the Attorney General certify that they were acting within the scope

of their federal employment at the Etowah Center when Allen’s malpractice claim

arose and move to substitute the United States as a defendant under the FTCA.

On November 20, 2001, the United States, acting through the United States

Attorney for the Northern District of Alabama, filed a “Notice Pursuant to 42

U.S.C. § 233(l)(1)” in state court. The notice stated that the Attorney General had

been notified for the first time of the lawsuit on November 16, 2001, and it

“advise[d] this Honorable Court that the Secretary of the United States Department

of Health and Human Services ha[d] under consideration” whether Drs.

Christenberry and Godfree were to be deemed employees of PHS under 42 U.S.C.

5
§ 233(l)(1). The notice acknowledged the possibility that they “may be deemed”

employees covered by 42 U.S.C. § 233(a). Also on November 20, 2001, HHS

informed the two doctors that they were not going to be deemed employees of

PHS and that decision was final and binding upon the Attorney General and the

parties in the lawsuit.

Notwithstanding the letter from HHS, Drs. Christenberry and Godfree

removed the case to federal district court on November 21, 2001. They based that

removal on several statutes, including 42 U.S.C. § 233, 28 U.S.C. § 1331, and 28

U.S.C. § 1446(b). On the same day as the removal, they also filed in the district

court a “Motion for De Novo Determination of Status of Defendants as Employees

of Public Health Service.” Allen moved, on November 27, 2001, to remand the

case to state court.

The district court denied Allen’s motion to remand, because it concluded

that Drs. Christenberry and Godfree had given timely notice of the suit to their

immediate superior, Wayne Rowe, as required by the FSHCAA, and in the district

court’s view they were contractors entitled to the protections of 42 U.S.C. §

233(a). The court concluded that “[t]he action has been timely removed by the

defendants or, by operation of law, has been or should have been removed by the

Attorney General.” To permit interlocutory review of its decision, the district

6
court entered an order stating that its decision involved a controlling issue of law

as to which there is a substantial ground for difference of opinion and that an

immediate appeal could materially advance the ultimate termination of the

litigation. Based upon that certification, Allen filed a petition for permission to

appeal pursuant to 28 U.S.C. § 1292(b), which we granted.

II.

We begin our consideration of 42 U.S.C. § 233(a) with the recognition that

removal statutes should be construed narrowly, with doubts resolved against

removal. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (citing Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S. Ct. 868, 872 (1941)). The

FSHCAA provides authority to remove cases to federal court only in specific and

limited circumstances. Because those circumstances were not present in this case,

Drs. Christenberry and Godfree did not properly remove this action to federal

court.

The FSHCAA makes the remedy provided against the United States under

the FTCA the exclusive remedy for the medical malpractice of employees or

contractors of PHS.2 42 U.S.C. § 233(a). In order to be covered under the FTCA,

2
42 U.S.C. § 233(a) provides:

The remedy against the United States provided by section[] 1346(b) . . . for

7
an entity, an employee of the entity, or a contractor of the entity seeking coverage

must be deemed an employee of PHS. 42 U.S.C. § 233(g)(1)(A). Drs.

Christenberry and Godfree claim that they are contractors of the Etowah Center, a

federally supported health center which itself is deemed an employee of PHS, and

for that reason they should be deemed employees of PHS and entitled to the

protections of the FTCA.

Section 233(b) provides that the Attorney General “shall defend any civil

action” brought in court against any officer or employee of PHS acting in the

scope of his employment. 42 U.S.C. § 233(b). The Attorney General may remove

a case under § 233(c) this way:

Upon 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 or proceeding
commenced 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 of the district and division embracing the place wherein
it is pending. . . .

Id. § 233(c).

damage for personal injury, including death, resulting from the performance of
medical, surgical, dental, or related functions, including the conduct of clinical
studies or investigation, by any commissioned officer or employee of the Public
Health Service while acting within the scope of his office or employment, shall be
exclusive of any other civil action or proceeding by reason of the same
subject-matter against the officer or employee (or his estate) whose act or
omission gave rise to the claim.

8
 Section 233(l)(1) provides that if a civil action is filed in state court against

an eligible entity or an employee or contractor of the entity, “the Attorney General,

within 15 days after being notified of such filing, shall make an appearance in

such court and advise such court” whether the Secretary of HHS has determined

that the entity, employee, or contractor is “deemed to be an employee of the Public

Health Service for purposes of this section . . . .” Id. § 233(l)(1). If he advises the

court that HHS has determined that the employee is deemed an employee of PHS –

which also amounts to a certification that the employee was acting within the

scope of employment – the Attorney General must remove the case to federal

court. Id. § 233(c), (l)(1).

If the Attorney General does not make an appearance within 15 days, §

233(l)(2) provides that the entity, employee, or contractor can remove the case to

district court. Id. § 233(l)(2). If that happens, the case is stayed until the district

court conducts a hearing and makes a determination as to the appropriate forum

for assertion of the claim. Id.

In this case, the Attorney General did appear in the state court proceeding

within 15 days of being notified of the lawsuit, but he did not advise the court of

any determination by HHS, because none had been made as of that time. HHS did

make a determination, deciding that Drs. Christenberry and Godfree were not

9
deemed employees of PHS, and it was that determination which prompted the two

doctors to remove the case to federal court.

The reason the removal by Drs. Christenberry and Godfree was improper is

that the statute authorizes removal in only two circumstances, and neither occurred

here. If the Attorney General had notified the court that HHS had determined that

the doctors were deemed employees of PHS, effectively certifying that they had

been acting within the scope of their employment with it, removal would have

been proper (indeed mandatory). 42 U.S.C. § 233(c), (l)(1). But that did not

happen.

The “Notice Pursuant to 42 U.S.C. § 233(l)(1)” that the United States

Attorney filed on November 20, 2001, four days after the Attorney General had

been notified of the lawsuit, did not advise the court that HHS deemed Drs.

Christenberry and Godfree employees of PHS for purposes of the lawsuit. Instead,

the notice stated that the Secretary of HHS was still considering whether to deem

them employees of PHS. It noted that in the future they “may” be deemed PHS

employees, which also meant, of course, that they might not be. The notice

communicated to the court that it was possible they would be deemed PHS

employees, but no decision had been made as of that date. The statute does not

provide for removal upon notification that no decision has been reached yet. Even

10
if it did, the defendant doctors could not have removed the case under § 233(c),

because that section provides for removal by the Attorney General, not by the

defendants.

If the Attorney General had failed to appear in state court within 15 days of

being notified of the suit, Drs. Christenberry and Godfree could have removed the

case to federal court themselves. Id. § 233(l)(2). But that did not happen, either.

The Attorney General did appear through the United States Attorney within four

days of being notified on November 16, 2001, to give notice that no decision had

been made but one was forthcoming. The next day after the Attorney General

appeared the defendant doctors themselves removed the case to federal court,

something the statute does not permit.

Drs. Christenberry and Godfree argue that the Attorney General actually had

received notice of the lawsuit by way of their letters to HHS in 1997, which was

four years before they removed the case to federal court (which happened just days

before the scheduled start of the state trial). Four years is certainly longer than 15

days, but it is too long to do the doctors any good. Section 233(l)(2) itself does

not specify a time limit for removal just as it does not specify which district court

is the “appropriate United States district court” for removal. See 42 U.S.C. §

233(l)(2). Those matters are left to the general removal statute, which is 28 U.S.C.

11
§ 1446(b). See generally, Things Remembered, Inc. v. Petrarca, 516 U.S. 124,

129, 116 S. Ct. 494, 497 (1995) (applying both 28 U.S.C. § 1447(d), which is the

general statute governing appellate review of remand orders, and 28 U.S.C. §

1452, which governs removals and remand orders in bankruptcy proceedings, to

determine whether district court’s remand order was reviewable and noting there is

no reason the two statutes “cannot comfortably coexist”); Lazuka v. FDIC, 931

F.2d 1530, 1536 (11th Cir. 1991) (holding the limitation period in 28 U.S.C. §

1446(b) applied to removal by FDIC under 28 U.S.C. § 1819 because § 1819 did

not have a separate procedure). If the Attorney General was notified in 1997, as

Drs. Christenberry and Godfree contend, they had thirty days from that

notification in which to remove this case. They did not do so.

We also conclude that HHS’s determination, which came a day before the

removal, that Drs. Christenberry and Godfree were not to be deemed employees

did not create federal question jurisdiction under 28 U.S.C. § 1331. They base

their argument to the contrary on our decision in Flohr v. Mackovjak, 84 F.3d 386

(11th Cir. 1996), which does not support their position. Flohr involved the

collateral order doctrine and a question of appellate jurisdiction. We held only

that we had jurisdiction to review the district court’s denial of the United States’

motion to substitute itself as defendant, because denying the motion to substitute

12
effectively denied immunity to the defendant – a civilian employee of the United

States Army. Id. at 390. The lawsuit in Flohr was already properly in federal

court under 28 U.S.C. § 1442(a)(1) because the defendant indisputably was a

federal employee. Section 1442 does not require a prior determination of the

defendant’s employment status by the Executive Branch or an appearance by the

Attorney General for proper removal in those circumstances; instead, it allows

removal of a civil action commenced in a state court against “[a]ny officer of the

United States or any agency thereof, or person acting under him, for any act under

color of such office” by that defendant. 28 U.S.C. § 1442(a)(1).

In contrast, in the FSHCAA Congress left the determination of the

defendants’ employment status to the Secretary of HHS and predicated removal

upon either an affirmative deeming by the Secretary or the Attorney General’s

failure to appear and advise the court within a prescribed period of time. See 42

U.S.C. § 233(g)-(h), (l). Neither occurred in this case, and we may not rewrite the

statute.3

3
We also reject Drs. Christenberry and Godfree’s argument that they properly removed
this case pursuant to 28 U.S.C. § 1446(b). Generally, a defendant can only remove a case to
federal court within 30 days after receiving the pleading. 28 U.S.C. § 1446(b). But, § 1446(b)
provides, “If the case stated by the initial pleading is not removable, a notice of removal may be
filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is
or has become removable.” The defendant doctors contend that the November 20, 2001 letter
from HHS informing them that they were not deemed employees of PHS constituted “other

13
 III.

Because the district court erred in denying Allen’s motion to remand, its

order denying remand is REVERSED and the case is REMANDED with

instructions to remand this case to state court.

paper” within the meaning of § 1446(b). However, this argument necessarily depends on the
proposition HHS’s determination that they were not PHS employees created federal question
jurisdiction under § 1331. Section 1446 does not separately provide jurisdiction. Because HHS’s
determination did not create federal question jurisdiction, removal under § 1446 was improper.

14