NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT YASHICA SHERMAN, an incompetent adult, by and through her guardian ad litem, David Sherman; et al.,

Plaintiffs

- Appellees,

v. RAKHI SINHA, D.O.,

Defendant

- Appellant, DIGNITY HEALTH, DBA California Hospital Medical Center,

Defendant

- Appellee, and GRAND MEDICAL ASSOCIATES; DOES, 1 through to 50, inclusive,

Defendants,

v. UNITED STATES OF AMERICA,

Movant

- Appellee. No. 19

- 55697
D.C. No. 2:19

- cv - 01584

- R

- SS

MEMORANDUM *

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

FEB 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Submitted J anuary 29, 2021 * * Pasadena, California Before: CALLAHAN and IKUTA, Circuit Judges, and BENCIVENGO, ** * District Judge. Co ncurrence by Judge IKUTA Dr. Rahki Sinha seeks review of the district court’s remand of a civil action against her to the state court. Although the scope of our review is limited , we conclude that the district court properly remanded the action to state court because Sinha’s removal was premature

. The underlying civil action against Sinha and others was filed in January 2019 in the California Superior Court for Los Angeles. On January 25, Sinha was served through substitute service by mail. Within a week the complaint was delivered to the U

. S

. Dep artment of Health and Human Services ( HH S). It appears, however, that the proffered complaint did not include the state court number or indicate that the complaint had been filed. Additional information was requested and was provided on February 26, 2019

.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designati on.3

On March 4, Sinha removed the case to federal court citing 42 U.S.C. § 233( l )(2), 28 U.S.C. § 1442, and 28 U.S.C

. § 2679(d)(3). On March 6, the U.S. Attorney for the Central District of California filed a notice pursuant to § 233( l )(1) in the state court stating that whether Sinha was “deemed to be an employee of the Public Health Service for purposes of 42 U.S.C. § 233 with respect to the actions or omissions that are the subject of [this] action is under consideration.” On March 27, the Un ited States filed a motion to remand the action to state court. Sinha opposed the motion and filed a motion to substitute the United States as defendant. The district court granted the motion to remand and denied as moot Sinha’s motion to substitute. Si nha filed a timely notice of appeal. Sinha sought removal under two distinct statutes. T he first, 42 U.S.C. § 233 provides that for claims for personal injury against certain federal officers and employees based on actions taken within their employment, an action against the United States is the exclusive remedy. Sinha asserted that she was employed by the South Central Family Health Center, which is a federally

- funded health center, and was “deemed” a federal employee pursuant to the Federal Supported H ealth Centers Assistance Act of 1992 (FSHCAA) , 42 U.S.C. § 233(g)

- (n). Section 233( l )(1) provides that if certain federal entities are sued in a state court, “the Attorney General, within 15 days after being notified of such filing,4

shall make an appearan ce in such court and advice such court as to whether

. . . [ the defendant ] . . . is deemed to be an employee of the Public Health Service for purposes of this section with respect to the actions or omissions that are the subject of such civil action.” 42 U.S.C. § 233( l )(2) provides that “if the Attorney General fails to appear in State court within the time period prescribe d ,” the federal defendant may petition to remove the case to the appropriate district court. However, Sinha’s motion also sought remov al pursuant to 28 U.S.C. § 1442(a)(1), which provides that if a civil action is commenced in state court against a federal officer “for or relating to any act under color of such office,” the federal defendant may remove the action to a federal district c ourt. Although a remand order is a final decision that might otherwise be subject to review on appeal, see Quackenbush v. Allstate Ins. Co

. , 517 U.S. 706, 714 (1996) , here we are constrained by 28 U.S.C. § 1447( d ), which states: An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherw ise. Sinha sought removal under § 233(l)(2) and § 1442(a)(1), and the district court addressed the two statutes separately. But the exception clause of 28 U.S.C. § 1447(d) does not allow us “to conduct plenary review of the district court’s remand order.” Cty . of San Mateo v. Chevron Corp. , 960 F.3d 586, 595 (9th Cir.5

2020). Instead, we may review the remand order “only to the extent that the order addresses” § 1442 or § 1443. Id .; see also Patel v. Del Taco, Inc. , 446 F.3d 996 (9th Cir. 2006). We therefore dismiss Sinha’s appeal to the extent that it seeks review of the portions of the district court’s order concerning § 233(l)(2). See id

. at 598. We agree with the district court that Sinha’s removal was premature and did not properly invoke the district court’s jurisdiction. Section 233( l )(1) allows the Attorney General “15 days after being notified” in which to make an appearance in the state court. Here, although Sinha initially informed HHS of the underlying complaint on January 31, she did not provi de HHS with critical information until February 26 and the Attorney General appeared in the state court on March 4, well within the 15 days allowed by § 233( l )(1). Sinha argues that the Attorney General did not “appear” in state court because the Attorney General did not defini tively advise the court of whether Sinha was considered a federal officer. However, she cites no authority in support of her position , and it is contrary to the statutory scheme and unworkable as a practical matter. Certification o f a public health organization under FSHCAA doe s not necessarily cover all of the organization’s employees or all of an employee’s
activities. Accordingly, a final determination of whether the federal government should represent a particular defendant in a civil action may take more tha n two6

weeks. Moreover, Sinha has not shown that either she or the state court was prejudiced or inconvenienc ed by the Attorney General’s statement to the state

court that coverage was under consideration. If allowed, the p remature removal of the case to the district court would bypass the Attorney General’s initial determination of whether a defendant public health worker should be deemed a federal officer. Pr oviding the Attorney General with the opportunity to consider th e issue is a prerequisite to federal jurisdiction. Indeed, t he third statu t e cited in Sinha’s removal petition, 28 U.S.C

. § 2679(d)(3), provides that where the Attorney General refuses to certify the scope of a defendant’s office, th e defendant may petition the state court to find that the defendant was acting within the scope of her federal office or employment and that if the court so certifies, the Attorney General may then remove the case to the appropriate district court. Thus, t he district court’s jurisdiction is properly invoked only after the Attorney General has had an opportunity to determine whether the defendant is deemed a federal officer.
Because Sinha sought to remove the civil action to the district court before expira tion of the time set for the Attorney General to determine whether she would be deemed a federal officer, the removal was premature and the district court ’s remand of the action to state court is affirmed. DISMISSED in part and AFFIRMED in part.She rman v . Sinha , No. 19-55697

IKUTA, J., spe c ia l ly

c onc u rring.
I would dism

iss in pa rt a nd a ffirm in pa rt. As the m a

jority c orre c tly sta te s,

we ha ve jurisdic t i on to re vie w the re m a n d orde r only to the e xte n t tha

t it a ddre sse s § 1442(a )(1). M a

j. a t 5. I the re fore a gre e with the m a jority ’ s dism issa l of Sinha ’ s

a ppe a l “ to the e xte nt tha

t it se e ks re vie w of the portions of the distric t c ourt’ s orde r

a ddre s sing § 233( l )(2).” Id. B e c a use the m a

jority dism i sse s this portion of Sinha ’ s

a ppe a l, howe ve r, the m a

j ority e rrs in ne ve rthe le ss a d dre ssing the que stion whe the r the d istric t c o urt wa s c orre c t in de te rm ining tha t Sinha ’ s re m ova l unde r § 233( l )(2)

wa s pre m a ture

. Se e id. a t 5–6.
Inste a d, we m a y re vie w the re m ova l orde r only to the e xte n t tha

t it a ddre sse s § 1442(a )(1). W he n

se e king to re m ove a

c a se unde r § 1442, de fe nda nts m ust file a notic e of re m ova l within thirty da y s of re c e iving, “ through se rvic e or othe rwise , . .

. a c o py of the initia l ple a d ing.” 28 U.S.C . § 1446(b)(1); se e also J ordan v

. N ationstar Mortg. LLC

, 781 F.3d 1178, 1179 (9th C ir. 2015) (“ Se c tion 1446(b)(1)

pe rm its de fe nda

nts to re m o ve sta

te -c ourt a c tions to fe d e ra l c ourt within thirty da y s of re c e iving a

n initia l ple a ding or othe r doc um e nt tha t re v e a l s a ba sis for

re m ova l.” ). He re , it is undispute d tha t Sinha wa s se rve d on Ja

n ua ry 25, 2019.
Sinha sought to re m ove this c a se on M a rc h 4, 2019, thirty -e ight da y s la t e r. The
notic e of re m ova l, to the e xte nt tha t it wa s ba se d on § 1442(a )(1), wa s the re fore



# FIL ED

FEB 2 2021
M OLLY C. DW Y ER, CLERK U. S. CO URT O F APPEALSuntim e l y . I would a ffirm the distric t c ourt’ s orde r re m a nding Sinha ’ s c a se to sta te

c ourt to the e xte nt tha

t it wa s re m ove d unde r § 1442(a )(1).

2