this along with my colleague derek adams on behalf of appellants khalifa enough work i'd like to reserve three minutes of time if i may all right there are three fundamental issues that i think  all of which call for reversal in this case which i'd like to highlight number one the district courts in both of these cases applied the wrong standard to review it's well established that officer removal statutes are to be given a presumption in favor of removal not against so by giving the wrong presumption the court that produced the wrong outcome number two the immunity that's at stake here which is an immunity from suit not merely immunity from liability is the same immunity that public health service officials receive federal public health service officials receive doctors af are deemed by the secretary of h h s department of health and human services to be that type of officer for purposes of that absolute immunity number three given that that the immunity is the same and that immunity is an immunity from suit demands it requires the same review or comparable judicial review available to federal employees who have a dispute with the united states government as to whether or not they were acting within the scope of their employment and that's precisely what section two hundred and thirty three l two under the under title we view the court as having jurisdiction as to the entire arena and order on two grounds and then jurisdiction to review the order to the extent that it denies immunity on a general officer removal statute so that's an express exception that was added to the statute in two thousand and eleven under the clear removal clarification act that exception allows for this court to review the entire order not parts independent and equally forceful for this court's jurisdiction is that section two hundred and thirty three else who commanded a hearing in the district court and under the the supreme court  recognized that if the removal is not personal into a jurisdictional basis or a procedural defect under one thousand four hundred and forty seven c then arena and orders reviewable this particular basis that was contrary to the express intent of congress which did not give magistrates that authority likewise in this case two hundred and thirty three dollars l two has a commanding language within it there is only really one issue in dispute that's the way this fifteen day clause piece works when you step past that we could talk about that hopefully soon when you step past that fifteen day provision that language otherwise is unequivocal on in big us and commands the district court to conduct a hearing and commands using the word shall and shall to man's a stay of all proceedings until this threshold determination is made in conduct for a court to conduct a hearing and make a determination and issue an order that is a robust single sentence that basically commanded the district court to do something that it did not do so in that when it removed i'm sorry when it reminded the case or purported to remain the case to state court it did so in direct contravention with that command we believe that is that falls outside of the the two bases which preclude appellate review the rd argument and i think i would view them in this sequence the rd argument we immunity is important that's well established it's separate from the merits of the case that's well established and it's also unreviewable later and we believe there are two aspects to that order that are it are important and separate from the merits one is the statute commanded a hearing in federal court so that commanded a federal form for this dispute that's very much like if not is an officer removal statute providing a federal form for the  only help me with something on the procedural i think it's your procedural point when i read to thirty two hundred and thirty three l one my reading was similar to yours and it says that the attorney general shall make an appearance in such court and advise such court as to whether the secretary has made the deeming determination as to the entity and i thought well he's supposed to do two things not one appear and see whether the entity has been deemed and he only did one of those things he just appeared so procedurally the thing was wrong that's your argument i think yes right  however the th circuit didn't buy it and i wonder how do you address the courts that have not walked that that that he has to tell whether the entity has been deemed  hope that it's not courts plural your honor i'm only aware of that weapon the th circuit decision i believe that decision really has not withstood the scrutiny and the test of time it came out early and it got the right result but for the wrong reason and i think that the rio decision really needs to be looked at to shed light on what is truly at issue in the removal scheme in the rio decision got right what the allen decision dispute that was at stake in that case which is that threshold advanced theming determination that the secretary makes which is really a kin to insurance determinations like an application for an insurance policy the secretary decides in advance of the year that the policy is sought whether you get it or not l rios said section two hundred and thirty three dollars l two is not the mechanism to resolve a dispute on that because l two really only comes into play after necessarily after this there is a policy in place so but if i could move back to the alan case just to give you a few more hopefully details that are hopefully i we if if we go your way then we would have to explain why we disagree with our sister circuit director honor and on that on that score there is a lot of examples of the disagreement with your sister circuit as one and then just twenty three days ago a district court within that circuit distinguished we put i'm sorry we did this at the last minute but it just came down saw that it was just a district court decision correct your honor and i think when george and that's in the th circuit is that right i sure hope it is but the district court can't overturn a circuit court decision for rex your honor but i think what it does is it shows what's wrong with it and that the the piece that the government would be relying on here was correctly identified as directed by the chief judge by chief judge land in that in that very circuit and then there's also the greater philadelphia case out of philadelphia where that court in a different circuit recognized the flaws in allen there's a decision out of maine the penobscot decision i also believe  that talking about a bunch of district yes is going to go your way correct correct on or there is i do not believe other than the rio there is a circuit court decision that takes aim at alan but i believe since alan and i can return to correct so they don't have to buy crap practice cover correct and all the attorney general needs to do is check with the secretary see if it's on the dean's list and if it is and that's it that's right and then they could have a hearing and say well yeah but the doctor was moonlighting for himself not for the dean dentity right yet district court in the eternity found that it was untimely and so therefore that  lower court's got wrong matter so much the presumption in favor versus against jurisdiction why it matters so much is that the application the extension of the liberally you know broadly construct that is to be construed liberally in this context but that deadline does not apply to two hundred and thirty three l two to thirty three else who has no outer that line and that's and that's for good reason because it the analog which it is following the statutory analog which it sort of braces and follows comes out of two thousand six hundred and seventy nine dollars which is the provision for ordinary federal employees that shows congress wants individuals who are disputed have a dispute with the government as to their immunity to be able to bring that forward any time before trial that's the deadline if you will and it's an incredibly generous one recognize that but that was the judgment that congress made for good reason because federal munity is so important and it's not always crystal clear whether it's going to apply or whether there's going to be a dispute as to it and so even if the wisdom comes late it's ok to remove as long as the state court process the state trial has not begun and there are there are a number of examples of cases removed on the eve of trial and the courts don't like it but they recognize it's permissible so that's why i'm saying the timing issue doesn't extend across all of it it only applies twenty one million four hundred and forty two thousand two hundred and thirty l two to thirty three l to has no timing and i would like to say on we are argument try to put blame on them for creating the confusion here and causing the delay their response to that was you can't blame a nonparty for your own decisions we have nothing to do with that but the problem with that is that non party status means that they can't invoke a timing issue because and this is well established only a party can file a motion on procedural grounds to remain under one thousand four hundred and forty seven see the plaintiffs did not file a motion to remain and the government claiming it's a non party did but that's not a basis to invoke a timing objection so that's what i'd say if the khalifah as to af work that was timely removed there was a removal within thirty days from the date of the letter that is dr aff work notice and do you want me to save a little bit of time oh i started thought this is going to extend only through my the time th it please the court martin to tar on behalf of the united states these cases should be dismissed based on the straightforward application of the rule that remain and orders are not appealable the supreme court and this court in case exception under section one hundred and forty two a one for federal officers or individuals acting under federal officers but that does not apply here for two independent reasons st both defendants remove one of those provisions were untimely under the thirty day requirement nd even if this court were to reach the merits the just defendants simply were not officers or acting under federal officers there t that nd one strikes me is the interesting issue in this case as i understand the general scheme of the statute these entities that are private entities they don't get a government paycheck but they do government contracted for work for poor people and other groups that the government wants to get medical care for that they get deemed to be federal employees had just as though they did get a government paycheck so once and the deeming is done in advance and as i understand it the purpose of that is so that these entities don't have to spend money that the government  wind up getting stuck for for malpractise insurance premiums and the dimming is done the previous year for this following year and then they're government employees the same thing so why shouldn't they be treated the same way responses your honor st a textual one the deeming determination is made for purposes of this section that is twenty eight u s c section two hundred and thirty three not for any other purpose grants but in that nine hundred and seventy six dollars supreme court case an oz board made clear merely because you receive federal grants that's not enough well more resources but if you're deemed to be just like a federal agency or employee that is enough again your honor texturally your deemed under for purposes of this section or this narrow section in section two hundred and thirty three which is talking about removal it's not talking about for any other purpose and if congress had intended to create this gaping loophole that would allow all sorts of cases to be removed from person to the federal office or move a provision one would expected congress to say so it's when they say so and to thirty three no your honor except for purposes of this section and i don't want to i want to make clear that we're talking about the purpose of this section is to provide the exclusive remedy just as though they did get a government paycheck it's for purposes of this section to describe when a particular entity can be deemed an en for that initial determination and when for a specific allegation a specific complaint if you want running stuff i don't text you rely on for that distinction which distinction your honor you're saying they're deemed for  one purpose but not another and not deemed to be federal employees for removal but they are deemed to be well i can't tell exactly what you think the deeming is for to clarify to take a step back to explain this stature and regulatory regime the statute expressive says you're deemed to be an employee employer under the public health service for purposes of this section it doesn't say for any other section and that means something that means the deemed entity is able to for example have access to a federal program that provides with lower prescription drug prices and it allows you to charge more for services under medicare but that doesn't mean determination  well acting within the scope of full sure that it matters because you could work part time for the deemed entity that provides medical services for poor people and then the doctor could also be making some more money on the side by doing private cases you could have a private practice outside the deemed to t v but even under defendant's reading i think even in that outside scenario that person would be able to remove so if i could just deeming for purposes of this section which gets you certain government benefits but when we're talking about what government benefit is there under that section except the exclusiveness of remedy what once you are deemed an entity you are able to have these ancillary benefits but when what be ancillary benefits i don't see any except exclusiveness i mean anybody who gets a federal grant to do anything an artist to do a sculpture  can get the federal contract but they don't get the exclusiveness of remedy that's provided for deemed entity is it i can't see what benefits you're talking about the exclusive use of remedy to be clear only applies when you're acting within the scope of your employment for the actions or missions that are going to say yeah that's was that's the moonlighting case i think you keep saying that there are other benefits you get if the entity you work for is deemed and i keep asking what benefits and i don't understand your answer yet there are regulatory benefits that come along with that it's cited i think in the supplemental excerpts of record when we referenced what benefits one of you tell me a break how sure that the two benefits i noted before you have access to higher billing rates under medicare and you're able to access a federal program that provides you with access to lower priced prescription drug benefits and i want to be clear we're not talking about a few doctors here and there under the defendants if you have a case we're talking about potentially hundreds of thousands of deemed employees who have access to section four hundred and forty two dollars and if that sort of sea change were expected we would expect congress to say so expressly and i'd also refer this court the question is whether they did in fact say it right here and when it said you're deemed an entity for this limited purpose under this section and it didn't say you also have your dream individual or you're doing government energy for another so i understand what you're saying though i'm still having trouble reconciling it with subsection a tell me in the subsection why is it enough if the attorney general makes an appearance but that's not advice such court why shouldn't the and the writ is also falling within the fifteen days is subject to a hearing in district court and the district court then decides whether the that positive deeming their determination was correct or not however there is no analogous provision in section two hundred and thirty three  anywhere else that would provide a negative just dreaming determination getting into federal court and if i could just refer back your honor to section two hundred and thirty three l one it's to refer to the advice appear in advice it's talking about as to whether the secretary has determined under subsection g and h that you're an employee but also says for purposes of this section with respect to the actions were omissions that are the subject of the civil action or proceeding and that determination simply cannot be made when the entity is initially did he deemed an employee at the beginning of the year so there are two separate determinations there's the initial dimming determination but there's also the coverage determination and that's why i mean the scope the scope so it's talking about yet with respect to the actions or omissions that are the subject of the civil action or proceeding and so under defendant's view of the statute that line is simply read out of the shall be a hearing what see addresses and then on and section two hundred and thirty three dollars l one we're talking about with respect to the actions were missions that are subject of the civil action or proceeding and under defendant's view that line is simply read out of the statute ok that's where i ask you which one is read out i'm not finding the words that you think are sure it's the provision that start i think it's about i'm not sure which version of it maybe six lines down with respect to the actions were emissions that are the subject of a civil action or proceeding that's contemplating not the initial determination because it simply couldn't have happened because the allegations in the complaint didn't happen yet that's talking about with respect to the particular allegations in the complaint and to the extent there were any doubt about that l one and l two as i think defendants agree must be read together i am missing something it looks to me like with respect to the actions or omissions that are the subject of such civil action that just would mean with respect to this particular medical malpractise case if you with respect to whether you're acting within the scope of your employment which is something that cannot be determined when there's an initial deeming determination and so for example then if you read down and look at section two hundred and thirty three dollars l two it's describing how under that onerous this advice requirement is and it says if the attorney general fails to appear in fifteen days the defendant is allowed to remove it's not saying fails to appear and as anything else the only requirement of section two hundred and thirty three a one is that the attorney general has to and this is right from the statute advise such court as to whether the secretary i needed to terminations i can't make sense of the fifteen day deadline for the attorney general less it simply means checking with the department of health and social services on whether the entity is in the deemed list that's the only thing you could possibly do that faced and i can't see the point of making the deadline fifteen days as congress did unless what it means to do is enable the doctor to avoid a default judgment because so low and plenty of time to file an answer within thirty days your honor is correct that the purpose of the fifteen day requirement is to allow the doctor is to prevent default judgments and that is served when the attorney general appears and advised the state court as to whether a determination has been made yet this doesn't it doesn't do the job if he appears with does not advise the state court of of whether the entity is deemed if he just the shows up but he doesn't advise whether the entities deemed then the doctors still hanging out there the attorney general sticking his nose and but he's not saying whether the doctor is previous a federal employee or not so the doctor still has to hire private counsel as his development mel and sure does if if he has medical malpractise insurance he's was pursuant to an independent contracting relationship where of course but if if doctors can't count on being deemed and treated as federal employees then they're poor people's health services outfit has to buy medical malpractise insurance a major overhead item and the grant has to cover your honor there's a critical point here in this scheme that there has developed the h scheme this is far back is march twenty four teams would not be covered because you're not allowed to enter into this continuous staffing arrangement with a non deemed entity farm out your doctor's for profit and four for after work thanks but just to follow up for a moment on on such klinefelter question what's the purpose of the attorney general merely notifying the state court that the defendants claim for f t c a coverage is under consideration your honor realistically i think it's quite unlikely that a state court would then enter a default judgment when it knows that the united states is considering that particular scope of coverage here and in these cases for example short shortly thereafter the government then notified the state courts in both cases that this sort of independent contracting scheme and for the particular allegations of this complaint fell outside the scope of coverage so it's that particular purpose i see a run over realistically i think most they judges and state courts in my experience really don't have that kind of deference for the federal so telling me what to think about realistically as opposed to what the rules are i can also only speak to what practically occurred in these cases and so that after the h s and the attorney general inform the district court there's a determination as quickly as possible now that was slow down in this case because we asked the defendants and i think for more and let me ask you didn't provide it let me ask you something about that contract in relationship ordinarily a doctor will work as an employee of a medical group and the doctor will have privileges or the medical group will have an arrangement with the hospital so that all its doctors have privileges at the hospital and the doctors perform hospital type procedures at the hospital is there something different here so the purpose of this program is as your honor noted is to provide under served populations with care and so that sort of care is supposed to be primary care and that's simply not what i mean the doctors the o b g y n clinics for poor women they can't deliver babies now i'm not saying that at all your honor but it's one hundred hospitals very simple in this particular case and this is doctor was employed by california hospital he was employed by the o b g y n group but he was your honor but he was providing they were both providing services at california hospital that's where the alleg jurisdiction in district court the twenty a j letter that defendants filed that case and other district court cases they say they're fundamentally different because those aren't cases where the attorney general appeared within fifteen days and so for example the district court from georgia case is totally different not on point and to your point why it could be decided in the th circuit with alan is binding precedent i'm happy to answer any other questions the i think thirty three points number one i was in there asked for permission to do this is about the merits so i don't think it's entirely proper but i want to respond to the part about the merits number one i didn't ask for permission to  referred to as a two hundred and forty seven call panel they laid it out in painful detail and then they attached the contract with the hospital to carry out the function they gave it to the government they asked for permission to do it in painful detail the government said yes you may do it then a couple of claims almost identical to the claims that are at issue here were brought and the government covered that and then in two thousand and fifteen years into this arrangement the government sent a letter to eisner saying we're dropping this arrangement we approved in the past but we're now changing it and then that letter said that's going to be effective sixty days from now all the events in this case preceded that letter that's what i'll say to the merits but that is for the merits number two the the meaning of the sentence that the government says has been written out of the statute has easy to understand meaning and you can tie it right to the notice of deeming that the government itself issues in those notices and there are multiple in the record they say this deem status is much like an occurrence based insurance policy so what has to happen for an occurrence based insurance policy when a claim arises you have to do two things there's two variables at issue number one do you have a policy number two do you have a policy at the time of the events giving rise to the claim so just being deemed in the present isn't good enough you've got to determine with your deemed in the moment that the events that give rise to the claim occurred and so she wanted your honor's questions earlier that is easy to do and can be done in fifteen days because all you have to do is look at two things what are the data the events and the claim