FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAIZEL BLUMBERGER, 

Plaintiff-Appellee, 

 v. 

IAN B. TILLEY, M.D., 

Defendant-Appellant, 

and 

CALIFORNIA HOSPITAL 

MEDICAL CENTER; DIGNITY 

HEALTH; DOES, 1 through 6 and 7 

through 50, 

Defendants, 

 v. 

UNITED STATES OF AMERICA, 

Movant-Appellee.

No. 22-56032 

D.C. No. 

2:22-cv-06066-

FLA-JC 

OPINION
2 BLUMBERGER V. TILLEY

Appeal from the United States District Court

for the Central District of California

Fernando L. Aenlle-Rocha, District Judge, Presiding

Argued and Submitted November 14, 2023

Pasadena, California

Filed September 9, 2024

Before: Barrington D. Parker, Jr.,* Jay S. Bybee, and 

Roopali H. Desai, Circuit Judges.

Opinion by Judge Bybee;

Partial Dissent by Judge Desai

SUMMARY**

Removal / Federally Supported Health Centers 

Assistance Act

The panel (1) vacated the district court’s order 

remanding Raizel Blumberger’s medical malpractice suit 

against Dr. Ian Tilley to state court; (2) reversed the district 

court’s conclusion that the Attorney General satisfied its 

advice requirement obligations to the state court under the 

* The Honorable Barrington D. Parker, Jr., United States Circuit Judge 

for the U.S. Court of Appeals for the Second Circuit, sitting by 

designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
BLUMBERGER V. TILLEY 3

Federally Supported Health Centers Assistance Act 

(FSHCAA); and (3) held that the government was obligated 

to remove the case to federal court in accordance with the 

FSHCAA.

Under the FSHCAA, employees of federally funded 

health centers can be deemed federal employees of the 

United States Public Health Service for the purpose of 

malpractice liability. When a deemed federal employee is 

sued for medical malpractice for acts or omissions within the 

scope of his employment, the United States is substituted as 

the defendant, and the malpractice action proceeds against 

the government under the Federal Tort Claims Act. 42 

U.S.C. § 233(g). If a malpractice suit is filed in state court, 

the Attorney General must appear within fifteen days of 

receiving notice of the action pursuant to § 233(l)(1), advise 

the state court whether the defendant is a deemed a federal 

employee, and if so, remove the case to federal court. If the 

Attorney General fails to properly appear, the defendant can 

remove the proceeding.

After Blumberger sued Dr. Tilley for medical 

malpractice, the Attorney General appeared in state court 

and notified the court that Dr. Tilley’s status as a deemed 

employee under § 233 was under consideration. One year 

later, after the Attorney General advised the court that Dr. 

Tilley was not a deemed employee, Dr. Tilley removed the 

case under the federal officer removal statute, 28 U.S.C. 

§ 1442, and under § 233(l)(1). The district court remanded, 

finding that Dr. Tilley’s removal was untimely under § 1442 

and that the Attorney General satisfied its advice obligations 

under § 233(l)(1).
4 BLUMBERGER V. TILLEY

The panel held that the district court analyzed the 

timeliness of Dr. Tilley’s § 1442 removal under the wrong 

legal standard and remanded on that basis. 

Notwithstanding the potential untimeliness of Dr. 

Tilley’s § 1442 removal, the panel determined that it had 

jurisdiction to review the district court’s § 233 analysis. The 

panel concluded that the Attorney General was obligated 

under § 233(l)(1) to advise the state court that Dr. Tilley had 

been a deemed employee during the relevant time 

period. The panel reversed the district court’s conclusion 

that the Attorney General’s state-court notice that Dr. 

Tilley's status was "under consideration" satisfied the

requirements of § 233(l)(1) and held that the government 

was obligated to remove the case to federal court. If the 

Attorney General subsequently determines before trial that 

Dr. Tilley was not acting within the scope of his employment 

and therefore was not entitled to malpractice coverage, the 

Attorney General is free to seek remand to state court. And 

Dr. Tilley would be entitled to a hearing in a federal court to 

determine his status.

Judge Desai dissented in part from Section III of the 

majority’s opinion addressing removal under § 233. At 

bottom, § 233 allows a defendant to remove in only one 

circumstance—when the Attorney General fails to appear. 

Because that did not happen here, Dr. Tilley’s removal under 

§ 233(l)(2) was improper.
BLUMBERGER V. TILLEY 5

COUNSEL

Matthew S. Freedus (argued), Rosie D. Griffin, and Brendan 

M. Tyler, Feldesman Leifer LLP, Washington, D.C., for 

Defendants-Appellants.

Samuel J. Winokur (argued) and Barry B. Novack, Law 

Offices of Barry Novack, Beverly Hills, California, for 

Plaintiff-Appellee.

Kevin B. Soter (argued), Dana Kaersvang and Mark B. 

Stern, Appellate Staff Attorneys, Civil Division; E. Martin 

Estrada, United States Attorney; Brian M. Boynton, 

Principal Deputy Assistant Attorney; United States 

Department of Justice, Washington, D.C.; Ryan C. 

Chapman, Assistant United States Attorney, Office of the 

United States Attorney, Los Angeles, California; for 

Movant-Appellee.

OPINION

BYBEE, Circuit Judge:

The ultimate issue in this case is simple enough: We are 

asked to decide whether Plaintiff-Appellee Raizel 

Blumberger’s medical malpractice suit against DefendantAppellant Dr. Ian Tilley was—or should have been—

removed to federal court. Having said that, everything else 

gets pretty complicated. But “resolving hard cases is part of 

the judicial job description,” Dubin v. United States, 599 

U.S. 110, 132 n.10 (2023), and “hard interpretive 

conundrums, even relating to complex rules, can often be 

solved,” Kisor v. Wilkie, 588 U.S. 558, 575 (2019).
6 BLUMBERGER V. TILLEY

The solution in this case requires that we consider two 

statutes dealing with removal to federal court: 28 U.S.C. 

§ 1442 and 42 U.S.C. § 233. We first conclude that the 

district court’s analysis of the timeliness of Dr. Tilley’s 

§ 1442 removal proceeded under the wrong legal standard, 

and we remand on that basis. We then hold that even an 

untimely § 1442 removal nevertheless confers appellate 

jurisdiction to review the other bases for the district court’s 

remand order. We reverse the district court’s conclusion that 

the Attorney General’s July 26, 2021, notice to the state 

court that Dr. Tilley’s deeming status was “under 

consideration” satisfied the advice requirement of 

§ 233(l)(1). Consequently, we hold that the government was 

obligated to remove the case to federal court in accordance 

with § 233(c). We therefore vacate the district court’s 

remand order.

I. BACKGROUND

A. Statutory Scheme

The United States Public Health Service (PHS) is a 

federal uniformed service within the Department of Health 

and Human Services (HHS). When an employee of the PHS 

is sued for medical malpractice arising from acts or 

omissions within the scope of his employment, the United 

States is substituted as the defendant, and the malpractice 

action proceeds against the government under the Federal 

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–80. See

42 U.S.C. § 233(a). This remedy is “exclusive of any other 

civil action or proceeding,” 42 U.S.C. § 233(a), and it 

“grants absolute immunity to PHS officers and employees 

for actions arising out of the performance of medical or 

related functions within the scope of their employment,” Hui 

v. Castaneda, 559 U.S. 799, 806 (2010).
BLUMBERGER V. TILLEY 7

To attract medical providers to federally funded health 

centers, Congress passed the Federally Supported Health 

Centers Assistance Act (FSHCAA). Under FSHCAA, 

federally funded health centers and their employees can be 

“deemed” federal employees of the PHS for the purposes of 

malpractice liability. See 42 U.S.C. § 233(g). The immunity 

for deemed PHS employees is identical to the immunity for 

true PHS employees. See id. § 233(g)(1)(A). When deemed 

employees are sued for actions taken within the scope of 

their employment, the United States is similarly substituted 

as the defendant and the action proceeds as an FTCA suit. 

Id.; id. § 233(a).1

1 We have set forth here the relevant portions of 42 U.S.C. § 233:

(a) Exclusiveness of remedy — The remedy against 

the United States provided by sections 1346(b) and 

2672 of title 28, or by alternative benefits provided by 

the United States where the availability of such 

benefits precludes a remedy under section 1346(b) of 

title 28, for 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.

* * *

(c) Removal to United States district court; procedure; 

proceeding upon removal deemed a tort action against 

United States; hearing on motion to remand to 

determine availability of remedy against United 

States; remand to State court or dismissal — Upon a 
8 BLUMBERGER V. TILLEY

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 and the 

proceeding deemed a tort action brought against the 

United States under the provisions of title 28 and all 

references thereto. Should a United States district 

court determine on a hearing on a motion to remand 

held before a trial on the merit that the case so removed 

is one in which a remedy by suit within the meaning 

of subsection (a) of this section is not available against 

the United States, the case shall be remanded to the 

State Court . . . .

* * *

(l) Timely response to filing of action or proceeding

(1) If a civil action or proceeding is filed in a State 

court against any entity described in subsection 

(g)(4) of this section or any officer, governing board 

member, employee, or any contractor of such an 

entity for damages described in subsection (a) of this 

section, the Attorney General, within 15 days after 

being notified of such filing, shall make an 

appearance in such court and advise such court as to 

whether the Secretary has determined under 

subsections (g) and (h) of this section, that such 

entity, officer, governing board member, employee, 

or contractor of the entity 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 or 

proceeding. Such advice shall be deemed to satisfy 

the provisions of subsection (c) of this section that 

the Attorney General certify that an entity, officer, 
BLUMBERGER V. TILLEY 9

To say that “[o]ur inquiry in this case begins and ends 

with the text of § 233[],” Hui, 559 U.S. at 805, understates 

the task before us. The statutory scheme is enormously 

complicated. A health center receiving federal funds may 

file an application with the Secretary of HHS to be “deemed” 

an employee of the PHS. See 42 U.S.C. § 233(g)(1)(A), (D); 

see also id. § 233(h) (setting forth the deeming criteria). 

Upon approval, the entity—along with its officers, board 

members, and employees—are deemed PHS employees for 

one calendar year. Id. § 233(g)(1)(A). This deeming status 

applies with respect to suits initiated by any patient of the 

entity. Id. § 233(g)(1)(B)(i). The Secretary’s deeming 

determination is generally “final and binding upon the 

Secretary and the Attorney General.”2 Id. § 233(g)(1)(F). 

governing board member, employee, or contractor 

of the entity was acting within the scope of their 

employment or responsibility.

(2) If the Attorney General fails to appear in State 

court within the time period prescribed under 

paragraph (1), upon petition of any entity or officer, 

governing board member, employee, or contractor 

of the entity named, the civil action or proceeding 

shall be removed to the appropriate United States 

district court. The civil action or proceeding shall 

be stayed in such court until such court conducts a 

hearing, and makes a determination, as to the 

appropriate forum or procedure for the assertion of 

the claim for damages described in subsection (a) of 

this section and issues an order consistent with such 

determination.

2 The statute also provides a mechanism for withdrawing deemed status 

for employees of a deemed entity prior to any suit being filed. The 

Attorney General may, in consultation with the Secretary of HHS and 

after notice and a hearing, determine that an employee of a deemed entity 

“shall not be deemed an employee of the Public Health Service . . . if 
10 BLUMBERGER V. TILLEY

The Secretary’s prospective deeming decision, however, 

does not automatically immunize a covered entity or 

employee from a particular malpractice suit. Instead, to be 

eligible for FTCA immunity, the “act or omission [giving] 

rise to the claim” must also have occurred while the 

defendant was “acting within the scope of his office or 

employment.” Id. § 233(a). Only then must the Attorney 

General defend a civil action against a deemed employee. 

Id. § 233(b).

Who determines whether a defendant was acting within 

the scope of his employment and when such determination 

must be made is at the heart of the controversy before us. 

When “any person referred to in subsection (a)” is sued, he 

must deliver “all process served upon him . . . to his 

immediate superior or to whomever was designated by the 

Secretary to receive such papers.” Id. Such notice shall be 

delivered “promptly.” 28 C.F.R. § 15.2(b). The person to 

whom the defendant delivers that process must in turn 

“promptly furnish copies of the pleading 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 Secretary.” 42 U.S.C. § 233(b). After 

receiving notice of a proceeding, the Attorney General may 

certify “that the defendant was acting in the scope of his 

employment at the time of the incident out of which the suit 

arose.” Id. § 233(c). Upon making that certification, if the 

suit was filed in state court, the Attorney General must 

remove the case to federal court, which he may do “at any 

time before trial.” Id. The federal court may subsequently, 

treating such individual as an employee would expose the Government 

to an unreasonably high degree of risk of loss” for certain enumerated 

reasons. 42 U.S.C. § 233(i)(1).
BLUMBERGER V. TILLEY 11

upon motion to remand, hold a hearing as to whether the case 

“is one in which a remedy by suit within the meaning of 

subsection (a) of this section is not available against the 

United States.” Id. That is, the court may hold a hearing as 

to whether the deemed employee was acting within the scope 

of his employment when he committed the allegedly tortious 

conduct. 

All of this leaves open the possibility that the Attorney 

General may not be in a position to make a scope-ofemployment certification upon receiving notice of the 

proceeding. It is this possibility that is the subject of the 

present controversy. If the suit was originally filed in state 

court, the Attorney General “shall make an appearance” in 

state court “within 15 days” of receiving notice of the action. 

Id. § 233(l)(1). At that appearance, the Attorney General 

must “advise such court as to whether the Secretary has 

determined” that the entity or employee “is deemed to be an 

employee of the Public Health Service . . . with respect to the 

actions or omissions that are the subject of such civil action 

or proceeding.” Id. If the Attorney General notifies the state 

court that the Secretary has deemed the defendant a PHS 

employee with respect to the acts or omissions that gave rise 

to the suit, that advice “satisf[ies] the provisions of 

subsection (c) that the Attorney General certify that an 

entity[] . . . [or] employee . . . was acting within the scope of 

their employment or responsibility.” Id. As explained 

above, an affirmative scope-of-employment certification 

under subsection (c) obligates the Attorney General to 

remove the case to federal court. See id. § 233(c).

The statute contemplates that the Attorney General might 

fail to appear within the 15 days prescribed by 

subsection (l)(1). “If the Attorney General fails to appear in 

State court within” 15 days, the case “shall be removed” to 
12 BLUMBERGER V. TILLEY

federal court “upon petition of any entity . . . [or] employee 

. . . of the entity.” Id. § 233(l)(2). In other words, if the 

Attorney General fails to make an appearance in state court, 

the defendant can remove the proceeding to federal court 

under subsection (l)(2) without action by the Attorney 

General. If the case has been removed by an employee 

without action by the Attorney General, the state court is 

deprived of jurisdiction, and the case is stayed until the 

federal court “conducts a hearing, and makes a 

determination, as to the appropriate forum or procedure for 

the assertion of the claim.” Id.

B. Procedural Posture

Eisner Pediatric and Family Medical Services (Eisner) is 

a community health center that receives federal grant funds 

under 42 U.S.C. § 254b. In 2017, HHS deemed Eisner an 

employee of the PHS for the 2018 calendar year. The notice 

also extended deemed status to Eisner’s employees—Dr. Ian 

Tilley among them—for performing medical, surgical, 

dental, or related functions while acting within the scope of 

their employment. 

On January 3, 2018, Dr. Tilley, an attending physician, 

and Dr. Jennifer Sternberg, a resident, delivered Raizel 

Blumberger’s baby. At the time, the doctors were working 

at California Hospital Medical Center, located just blocks 

from Eisner in downtown Los Angeles. The doctors 

allegedly “failed to provide proper medical care to address a 

laceration that occurred during childbirth, and failed to 

timely suspect, refer, diagnose and treat the wound so as to 

cause [Blumberger] to suffer pain, suffering and other 

injuries.” Unlike Eisner, California Hospital Medical Center 

is not federally funded, but the relationship between the two 

entities is not readily apparent from this record.
BLUMBERGER V. TILLEY 13

The timeline here is of some consequence. Blumberger 

filed her complaint on May 20, 2021, in California Superior 

Court. The summons and complaint were served on Dr. 

Tilley on June 1, 2021. Dr. Tilley answered on July 16, 

2021. The answer raised sixteen affirmative defenses, none 

of which involved his status as a deemed PHS employee. On 

the record before us, we have no reason to believe that Dr. 

Tilley was subjectively aware of his deemed status when 

filing the answer. On July 20, 2021—four days after Dr. 

Tilley’s answer—Eisner notified HHS of the complaint 

against Dr. Tilley. 

The Attorney General, through the local United States 

Attorney, appeared in state court on July 26, 2021.3 The 

government notified the state court that “whether Defendant 

Ian B. Tilley, M.D.[,] is 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 the 

above captioned action, is under consideration.” The 

Attorney General did not remove the case to federal court. 

Nearly one year later, on July 21, 2022, the government 

amended the notice. In relevant part, the notice stated that

Dr. Tilley “is not deemed to be an employee of the [PHS] . . . 

with respect to the actions or omissions that are the subject 

of the above captioned action.” 

Dr. Tilley putatively removed the case to the U.S. District 

Court for the Central District of California on August 26, 

2022.4 He asserted two bases for removing the case. First, 

3 The notice was dated July 22, 2021, but it was stamped “RECEIVED” 

on July 26, 2021. 

4 Dr. Tilley’s counsel attempted to file the notice of removal on 

August 25, 2022, but encountered difficulties with CM/ECF. The notice 

was therefore considered filed the following day.
14 BLUMBERGER V. TILLEY

he argued that he was entitled to federal officer removal 

pursuant to 28 U.S.C. § 1442(a)(1) because he “was acting 

under Eisner’s federal grantor agency, HHS.” Second, he 

argued that removal was proper under 42 U.S.C. § 233(l)(2). 

Dr. Tilley contended that the government’s appearance in 

state court was deficient because the Attorney General was 

required to advise the state court of Dr. Tilley’s positive 

deeming status for the 2018 year. Dr. Tilley argued that, 

although the Attorney General was not obligated to appear 

in state court to affirm whether Dr. Tilley was acting within 

the scope of his employment, the Attorney General was at 

least obligated to advise the state court that Dr. Tilley was 

deemed to be a PHS employee because he was employed by 

Eisner. Because the Attorney General did not fulfill that 

obligation, Dr. Tilley argued, the government failed to 

appear as required under subsection (l)(1), thus making 

defendant-initiated removal proper under subsection (l)(2). 

The district judge remanded the case. The court found 

Dr. Tilley’s § 1442 removal untimely. It reasoned that Dr.

Tilley’s purported basis for federal officer removal existed 

when the complaint was filed in state court, which triggered 

a 30-day removal clock under 28 U.S.C. § 1446(b)(1). 

Because the complaint was filed on May 20, 2021, Dr. 

Tilley’s removal more than a year later was untimely. The 

court similarly rejected Dr. Tilley’s basis for removal under 

§ 233(l)(2). It explained that under subsection (l)(1), the 

government need only advise the state court as to whether

the Secretary has made a deeming decision, which the 

government did here. Put differently, the district court 

surmised that “removal is improper . . . if the Attorney 

General appeared within 15 days after being notified of the 

state court action, even if that appearance was only to advise 

the court that no determination had yet been made.” 
BLUMBERGER V. TILLEY 15

Dr. Tilley timely appealed. Because the propriety of the 

district court’s remand order turns on questions of statutory 

interpretation, our review is de novo. See Ehart v. Lahaina 

Divers, Inc., 92 F.4th 844, 849 (9th Cir. 2024); Tanoh v. Dow 

Chem. Co., 561 F.3d 945, 952 (9th Cir. 2009).

II. SECTION 1442 AND APPELLATE JURISDICTION

As complicated as parsing § 233 may be, we have one 

matter to attend to first: our own appellate jurisdiction. In 

general, “[a]n order remanding a case to the State court from

which it was removed is not reviewable on appeal.” 28 

U.S.C. § 1447(d). However, “an order remanding a case to 

the State court from which it was removed pursuant to 

section 1442 . . . shall be reviewable by appeal or 

otherwise.” Id. Crucially, the Supreme Court has held that 

when removal was effectuated in part pursuant to § 1442, an 

appellate court possesses jurisdiction to review the entire 

remand order—not only those components pertaining to 

§ 1442. BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1538 

(2021) (“Here, everyone admits the defendants’ notice of 

removal . . . cit[ed] § 1442 as one of its grounds for removal. 

Once that happened and the district court ordered the case 

remanded to state court, the whole of its order became 

reviewable on appeal.”).

These rules give rise to two threshold questions. First, 

was Dr. Tilley’s § 1442 removal untimely? Second, if so, is 

the case still one “removed pursuant to section 1442” such 

that we retain appellate jurisdiction over the rest of the 

remand order? 28 U.S.C. § 1447(d). We conclude that the 

district court applied the wrong legal standard in answering 

the first question, so we remand on this issue to resolve 

certain factual uncertainties. Notwithstanding the 

uncertainty about the timeliness of Dr. Tilley’s § 1442 
16 BLUMBERGER V. TILLEY

removal, we conclude that we still have appellate 

jurisdiction to review the entire remand order, including the 

district court’s § 233 holding. We take these issues in turn.

A. Whether Dr. Tilley’s § 1442 Removal Was Timely

A case is removable under § 1442 if the “party seeking 

removal [can] demonstrate that (a) it is a ‘person’ within the 

meaning of the statute; (b) there is a causal nexus between 

its actions, taken pursuant to a federal officer’s directions, 

and plaintiff’s claims; and (c) it can assert a ‘colorable 

federal defense.’” Durham v. Lockheed Martin Corp., 445 

F.3d 1247, 1251 (9th Cir. 2006) (citation omitted). 

Section 1446(b) provides the rules governing the timeliness 

of removal. The default rule is that the party seeking 

removal must remove “within 30 days after the receipt . . . 

of a copy of the initial pleading.” 28 U.S.C. § 1446(b)(1). 

But “if the case stated by the initial pleading is not 

removable,” a party may remove a case within 30 days “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.” Id. § 1446(b)(3). 

Was the case stated by Blumberger’s initial pleading 

removable under § 1442? We think not. The 30-day clock 

under § 1446(b)(1) begins to run “only when that pleading 

affirmatively reveals on its face the facts necessary for 

federal court jurisdiction.” Rea v. Michaels Stores Inc., 742

F.3d 1234, 1238 (9th Cir. 2014) (per curiam) (emphasis 

added) (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 

689, 691–92 (9th Cir. 2005)). Our decision in Dietrich v. 

Boeing Co., 14 F.4th 1089 (9th Cir. 2021), provides a 

clarifying example in the context of federal officer removal. 

There, the plaintiff sued Boeing, alleging that she had been 

exposed to asbestos when her family members were in the 
BLUMBERGER V. TILLEY 17

employ of the company. “[H]er family members were 

exposed to asbestos through Boeing’s work for the United 

States military,” but the complaint did not mention this 

relationship—“a connection that would have alerted Boeing 

to a possible basis for removal to federal court under the 

federal officer removal statute.” Id. at 1091. The court 

therefore concluded that “Dietrich’s initial complaint d[id] 

not set forth a ground for removal,” id. at 1093, even though 

Boeing likely could have discovered this connection from a 

review of its own records.

As in Dietrich, the face of the complaint before us does 

not allege sufficient facts to alert Dr. Tilley to his potential 

basis for removal based on his relationship with HHS. The 

complaint does not mention Eisner at all, let alone its status 

as a deemed PHS entity. Instead, the complaint suggests that 

Dr. Tilley was employed by California Hospital Medical 

Center, which was not a federally funded entity. Nothing in 

the record suggests that Dr. Tilley was subjectively aware of 

Eisner’s (and therefore, his) deemed status when the 

complaint was filed on May 20, 2021; it seems implausible 

that if Dr. Tilley was aware of his deemed status, he would 

have chosen not to raise it as one of his sixteen affirmative 

defenses in filing his answer. Instead, it appears to us that 

Dr. Tilley was oblivious to his potential claim to § 233 

immunity as an Eisner employee—and thus the potential for 

federal officer removal based on his relationship with 

HHS—until the government first appeared in state court on 

July 26, 2021. By that point, in accordance with § 233(b), 

Eisner had informed the Secretary of HHS of the suit, and 

HHS had advised the Attorney General. The district court 

thus erred in analyzing the timeliness of Dr. Tilley’s § 1442 

removal under § 1446(b)(1) instead of § 1446(b)(3).
18 BLUMBERGER V. TILLEY

Starting the 30-day clock under § 1446(b)(3) is more 

difficult than under § 1446(b)(1). See Dietrich, 14 F.4th at 

1093 (recognizing that § 1446(b)(3) “seems to require a 

greater level of certainty or that the facts supporting 

removability be stated unequivocally” (citation omitted)). 

The clock runs only upon receipt of a “paper from which it 

may first be ascertained that the case is one which is or has 

become removable.” 28 U.S.C. § 1446(b)(3). We have held 

that “an amended pleading, motion, order, or other paper 

must make a ground for removal unequivocally clear and 

certain” to trigger § 1446(b)(3)’s temporal limitation. 

Dietrich, 14 F.4th at 1095. This is a high bar, for good 

reason. It avoids bad-faith gamesmanship by “preventing 

plaintiffs from strategically starting the removal clock 

without the defendants’ realization.” Id. at 1094.

The government’s July 26, 2021, state-court notice 

provided anything but “unequivocally clear and certain” 

support for removal under § 1442. The government’s notice 

was definitionally indeterminate, stating that Dr. Tilley’s 

deemed status “with respect to the actions or omissions that 

are the subject of the above captioned action[] is under 

consideration.” Because the government’s notice did not say 

that Dr. Tilley was a deemed PHS employee, Dr. Tilley could 

not have been certain from the government’s notice alone 

whether the Secretary had deemed him a PHS employee for 

the 2018 calendar year. Perhaps that should have clued Dr.

Tilley to investigate his status further—after all, the 

government’s notice referenced § 233 explicitly and implied

that Dr. Tilley might be “deemed to be an employee of the 

Public Health Service.” But we have “emphasized that a 

defendant does not have a duty of inquiry if the initial 

pleading or other document is indeterminate with respect to 
BLUMBERGER V. TILLEY 19

removability.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 

791 (9th Cir. 2018) (citation and quotation marks omitted).

Nor do we think the government’s subsequent notice that 

Dr. Tilley was not deemed a PHS employee is 

“unequivocally clear and certain” to support § 1442 

removal. To the contrary, the government’s adverse decision 

that Dr. Tilley was not so deemed suggests that Dr. Tilley did 

not qualify for § 1442 removal because he was not acting 

under the direction of a federal officer and is unable to assert 

a viable federal defense. Even more, it did not notify Dr. 

Tilley with any certainty that he was deemed a PHS 

employee for the 2018 calendar year. Of course, it was at 

this point that Dr. Tilley first learned with near certainty that 

the government would not remove the case on his behalf. 

But that is a far cry from notice that a “ground for removal

was unequivocally clear and certain.” Dietrich, 14 F.4th at 

1095 (emphasis added). And even if Dr. Tilley should have 

removed at this point, he was not necessarily obligated to do 

so within 30 days of receiving the government’s adverse 

notice. Cf. id. at 1094 (distinguishing “facts sufficient to 

allow removal with facts sufficient to require removal within 

thirty days”).

Left with only the foregoing, we might have been 

inclined to conclude that Dr. Tilley’s § 1442 removal was 

timely. We have recognized that “the defendant may remove 

at any time” “as long as the complaint or ‘an amended 

pleading, motion, order or other paper’ does not reveal that 

the case is removable.” Rea, 742 F.3d at 1238; accord 

Kenny, 881 F.3d at 791. But we think there may be some 

“other paper” that makes Dr. Tilley’s asserted ground for 

removal unequivocally clear and certain: HHS’s 2017 notice 

deeming Eisner a PHS entity for the 2018 calendar year. 

This paper may satisfy § 1446(b)(3)’s requirements. In 
20 BLUMBERGER V. TILLEY

particular, the document makes clear that Eisner is deemed a 

PHS entity for the 2018 year and that “[c]overage extends to 

deemed entities and their . . . full- and part-time employees.” 

Because Dr. Tilley’s § 1442 removal rests entirely on his 

status as an employee of a deemed PHS entity, HHS’s notice 

provides unequivocally clear and certain support for Dr. 

Tilley’s contention that he was acting “pursuant to a federal 

officer’s directions” when treating Blumberger and that there 

is a “colorable federal defense” pertaining to the medical 

malpractice claims. Durham, 445 F.3d at 1251 (citation 

omitted).

It is not clear from the record before us whether and 

when Dr. Tilley received the deeming notice; in fact, the 

record is not clear as to when Dr. Tilley learned of his 

deemed status in the first place. We therefore remand to the 

district court to determine when Dr. Tilley’s 30 days under 

§ 1446(b)(3) began to run, if at all. If it determines that Dr.

Tilley’s § 1442 notice was timely, then the district court

should proceed to decide whether Dr. Tilley was an “officer 

(or any person acting under [an] officer) of the United States 

or of any agency thereof.” 28 U.S.C. § 1442(a)(1); see 

generally Doe v. Cedars-Sinai Health Sys., 106 F.4th 907 

(9th Cir. 2024). We express no view on the merits of this 

question.

B. Whether We Have Appellate Jurisdiction to Review the 

§ 233 Ruling Even If Dr. Tilley’s § 1442 Removal Was 

Untimely

Dr. Tilley argues that even if his § 1442 removal was 

untimely, we still have appellate jurisdiction to review the 

district court’s § 233 ruling. This is an issue of first 

impression, and we conclude that we can review the 

remainder of the district court’s order.
BLUMBERGER V. TILLEY 21

Section 1447(d) governs our jurisdiction to review a 

remand order. The provision precludes appellate review of 

a remand order, “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 otherwise.” 28 U.S.C. § 1447(d). In other words, 

we may review a remand order if removal occurred 

“pursuant to section 1442.” Id. And as the Supreme Court 

held in BP, a removal pursuant to § 1442 confers appellate 

jurisdiction to review the entire remand order—not only the 

components of that order arising out of the federal officer 

removal. 141 S. Ct. at 1538. The question, then, is whether 

an untimely removal under § 1442 is nevertheless a case 

“removed pursuant to section 1442” within the meaning of 

the statute.

We start with § 1446(d). That section provides: 

“Promptly after the filing of such notice of removal of a civil 

action[,] the defendant or defendants shall give written 

notice thereof to all adverse parties and shall file a copy of 

the notice with the clerk of such State court, which shall 

effect the removal.” 28 U.S.C. § 1446(d). At that point, the 

case is removed, “and the State court shall proceed no further 

unless and until the case is remanded.” Id. The first clause 

of this subsection provides a timing rule: After filing a 

notice of removal in federal court, the defendant must 

promptly give notice to adverse parties and the state court. 

The actions in the second clause describe what “shall effect 

the removal”—that is, the dissemination of notice to the 

adverse parties and the filing of a copy of the notice with the 

clerk of the state court.

Satisfying the notice requirements of § 1446(d) does not, 

of course, guarantee that the removed case will remain in 

federal court. Section 1447(c) provides for remand on the 
22 BLUMBERGER V. TILLEY

basis of “any defect,” including timeliness. See id. § 1447(c) 

(“A motion to remand the case on the basis of any defect 

other than lack of subject matter jurisdiction must be made 

within 30 days after the filing of the notice of removal under 

section 1446(a).”). The time limit in § 1446 is “merely a 

formal and modal requirement and is not jurisdictional.” 

Friedenberg v. Lane County, 68 F.4th 1113, 1121 (9th Cir. 

2023) (quoting Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th 

Cir. 2014)). For that reason, a failure to raise timeliness as 

an issue forfeits an objection to this procedural defect. A

procedural defect may affect the federal court’s subsequent 

decision to remand, but it does not change the fact that 

satisfying the notice requirements removes the case in the 

first place. The cases and commentary are clear that even 

temporary removal is removal, and “[t]he jurisdiction of the 

state court over the action is immediately ousted and the 

federal court assumes jurisdiction for all purposes.” Moore’s 

Fed. Prac. § 1446.2[4], at 653 (2023 ed.) (citation omitted); 

see Resol. Tr. Corp. v. Bayside Devs., 43 F.3d 1230, 1238 

(9th Cir. 1994) (“Thus, the clear language of the general 

removal statute provides that the state court loses jurisdiction 

upon the filing of the petition for removal.” (emphasis 

added)); Moore’s Fed. Prac., supra, § 1447.2[2][a], at 655 

(“[R]emoval is effected automatically by the filing of the 

notice of removal. If the federal court later determines that 

the removal was improper, remand under § 1447(c) is the 

statutory procedure by which the action is returned to the 

state court.”); cf. Brooks v. Liberty Life Assurance Co. of 

Bos., 937 F.3d 1144, 1145 (8th Cir. 2019) (“And the federal 

statute is clear: removal is effective upon ‘fil[ing] a copy of 

the notice [of removal] with the clerk of [the] State court,’ 

regardless of how state law might treat the notice after it is 
BLUMBERGER V. TILLEY 23

filed.” (alterations in original) (emphasis omitted) (quoting 

28 U.S.C. § 1446(d))).

The Supreme Court’s decision in BP supports our 

conclusion. The Court there considered, among other issues, 

the circumstances under which a case is removed pursuant 

to § 1442(a)(1). The majority opined that the removal 

“statute requires the defendant to provide affected parties 

and courts with a notice stating its grounds for removal. 

§§ 1446(a), (d). The combination of these actions ‘effect[s] 

the removal.’ § 1446(d).” BP, 141 S. Ct. at 1538 (alteration 

in original). Conspicuously, the Court cited only § 1446(a) 

and (d) as the precondition to effecting removal, rather than 

referencing the timeliness requirements in § 1446(b). The 

Court continued, “To remove a case ‘pursuant to’ § 1442 or 

§ 1443, then, just means that a defendant’s notice of removal 

must assert the case is removable ‘in accordance with or by 

reason of’ one of those provisions.” Id. (emphasis added)

(footnote omitted). “Once that happened and the district 

court ordered the case remanded to state court, the whole of 

its order became reviewable on appeal.” Id. BP thus 

confirms that comporting with the procedures of § 1446(a) 

and (d) removes the case to federal court; nothing more is 

required.

Beyond the opinion’s express reasoning, the logic of BP

similarly supports our interpretation. BP supposed that there 

might be improper § 1442 removals that nevertheless confer 

appellate jurisdiction to review the other components of the 

remand order. See id. at 1542–43 (discussing frivolous 

§ 1442 removals). The Court also suggested that “a court of 

appeals [might] find[] the § 1442 or § 1443 issue a difficult 

and close one, but believe[] removal is clearly and easily 

warranted on another basis.” Id. at 1542. This necessarily 

contemplates appellate jurisdiction even when a case was not 
24 BLUMBERGER V. TILLEY

properly removed under § 1442. Adopting a contrary 

reading would render BP pure dicta in its entirety: If a 

proper § 1442 removal was required to confer appellate 

jurisdiction over the entire remand order, an appellate court 

would have no need to consider the other grounds for 

removal on appeal, as § 1442 would already supply a 

permissible basis for removal. If § 1442 removal was 

improper, the court would have no appellate jurisdiction, 

including jurisdiction to consider the other bases for 

removal. The only way to make sense of BP is to 

acknowledge that there might be some instances when the 

§ 1442 basis for removal is infirm but the court of appeals 

nevertheless retains jurisdiction to review the whole remand 

order.

We recently applied this logic to a similar set of 

circumstances in Friedenberg. The defendants sought 

removal on both § 1442 and § 233 grounds, but the § 1442 

removal was untimely. The plaintiffs, however, “failed to 

raise their timeliness objection within the statutory 30-day 

deadline.” Friedenberg, 68 F.4th at 1121. We concluded 

that they had waived their objection and that the case had 

therefore been removed pursuant to § 1442. Accordingly, 

we had appellate jurisdiction to review the defendants’ § 233 

arguments. See id. at 1124. Here, of course, the government 

did object to the untimeliness of the § 1442 removal. But for 

the reasons we have already explained, that merely 

preserved the possibility for remanding on timeliness 

grounds—it did not alter the fact that the case had been 

removed pursuant to § 1442 for the purposes of establishing 

our appellate jurisdiction.

We are not oblivious to the policy-laden concerns 

espoused by the government in response. The government 

fears strategic gamesmanship insofar as “defendants might 
BLUMBERGER V. TILLEY 25

seek to remove cases like this one at any point” under an 

untimely § 1442 removal for the sole purpose of preserving 

appellate jurisdiction over the entire remand order. But such 

policy arguments cannot—and should not—change our 

conclusion here. First, “the statute tempers its obvious 

concern with efficiency when it comes to cases removed 

pursuant to § 1442 . . . . For that subset of cases, Congress 

has expressed a heightened concern for accuracy, authorized 

appellate review, and accepted the delay it can entail.” BP, 

141 S. Ct. at 1542. Second, Congress has already crafted 

deterrents to frivolous invocations of § 1442, including by 

allowing “a district court [to] order a defendant to pay the 

plaintiff’s costs and expenses (including attorney’s fees) if it 

frivolously removes a case from state court. Additionally, 

the Federal Rules of Civil Procedure allow courts to sanction 

frivolous arguments made in virtually any context.” Id. at 

1542–43. Third, these policy concerns cannot trump the text 

of the statute; “[t]o the extent that . . . these other measures 

[are] insufficient, Congress is of course free to revise its 

work anytime. But that forum, not this one, is the proper 

place for such lawmaking.” Id. at 1543. Finally, the other 

bases for removal still need to be timely. Otherwise, the 

appellate court will simply not reach the substantive validity 

of any other basis for removal when reviewing the entire 

remand order.

In sum, we conclude that we have appellate jurisdiction 

to wade into the § 233 dispute notwithstanding any 

untimeliness in Dr. Tilley’s § 1442 removal.

III. SECTION 233

At last, we return to the thicket of § 233. It is hardly a 

model of clarity, so we proceed with caution in addressing 

this central question: Was the Attorney General required 
26 BLUMBERGER V. TILLEY

under § 233(l)(1) to inform the state court of Dr. Tilley’s 

deemed status for 2018, such that the government was 

obligated to remove the case to federal court?5 We answer 

in the affirmative. In Part III.A, we show why the text of the 

statute compels this conclusion. In Part III.B, we explain 

how our interpretation also finds support in the presumption 

of judicial review. In Part III.C, we consider what remedy

Dr. Tilley has—if any—to enforce the government’s 

removal obligation.

A. Text of § 233

Section 233(l)(1) instructs the Attorney General to 

appear in state court within 15 days of receiving notice of an 

action against a deemed employee. In making that 

appearance, the Attorney General must “advise [the state] 

court as to whether the Secretary has determined under 

subsections (g) and (h), that such entity . . . [or] employee 

. . . 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 or 

proceeding.” 42 U.S.C. § 233(l)(1). All parties agree that if 

the Attorney General advises the state court in the 

affirmative, “[s]uch advice shall be deemed to satisfy the 

provisions of subsection (c) that the Attorney General certify 

that an . . . employee . . . was acting within the scope of their 

employment,” id., which in turn requires the Attorney 

General to remove the action to federal court, id. § 233(c). 

5 Our dissenting colleague implies that this question is not properly 

before us on appeal. See Dissent at 55–56, 59. We believe it is. The 

parties extensively briefed whether the Attorney General’s notice was 

sufficient under § 233(l)(1), and, as a corollary, whether the Attorney 

General was obligated to remove the case. The issue was also raised 

repeatedly at oral argument.
BLUMBERGER V. TILLEY 27

The action proceeds as a “tort action brought against the 

United States” under the FTCA. Id. Once the case has been 

removed, the district court may conduct a hearing on a 

motion to remand filed by any party. Id.

The parties dispute precisely what the advice required by 

subsection (l)(1) demands of the Attorney General. Dr. 

Tilley urges us to focus on the phrase “whether the Secretary 

has determined . . . that such . . . employee . . . is deemed to 

be an employee of the Public Health Service.” On Dr. 

Tilley’s reading of § 233(l)(1), the Attorney General was 

obligated to advise the state court that the Secretary had 

deemed Dr. Tilley to be a PHS employee during 2018 and 

should have removed the case to federal court on that basis

pursuant to § 233(c). The government and Blumberger 

contest this reading, instead focusing on the phrase 

“deemed . . . with respect to the actions or omissions that are 

the subject of such civil action or proceeding.” In their view, 

this advice requirement is a de facto scope-of-employment 

certification, but one made by the Secretary and not the 

Attorney General.

Unfortunately, “both sides have tendered plausible 

constructions of a text . . . [that is] far from clear.” De 

Martinez v. Lamagno, 515 U.S. 417, 434 (1995). The answer 

lies somewhere in the middle, but it is closer to Dr. Tilley’s 

position. In the end, we conclude that subsection (l)(1) 

requires the Attorney General to provide positive advice to 

the state court when the employee was deemed for the time 

period at issue and the lawsuit arises out of a class or 

category of medical conduct for which the employee was 

deemed.

Our analysis of the text proceeds in three parts. We first 

reiterate the distinction between the Secretary’s prospective 
28 BLUMBERGER V. TILLEY

deeming decision and the Attorney General’s ex-post 

coverage determination. Then, we explain why § 233(l)(1)’s 

reference to “the actions or omissions that are the subject” of 

the lawsuit refers to the general categories of conduct for 

which a person may be deemed under § 233(g). We 

conclude by showing the error of treating § 233(l)(1) as a de 

facto scope-of-employment decision.

1. “Deemed” vs. “covered”

Before addressing § 233(l)(1) itself, we must reiterate a 

distinction between a “deemed” employee and a “covered” 

employee. That distinction runs throughout FSHCAA and is 

key to unlocking the statute’s meaning. An employee’s 

“deemed” status is a prospective decision made by the 

Secretary of HHS to treat the employee as if he were an 

employee of the PHS. See 42 U.S.C. § 233(g)(1)(A). The 

deeming decision is made before any litigation is filed; it is 

an ex-ante determination made on a yearly basis as to an 

employee’s status. Id. “Once the Secretary makes a 

determination that an . . . employee . . . of an entity is 

deemed to be an employee of the Public Health Service for 

purposes of this section, the determination shall be final and 

binding upon the Secretary and the Attorney General . . . .” 

Id. § 233(g)(1)(F). 

Being deemed a PHS employee, however, does not 

automatically entitle the employee to immunity from suit. 

Deemed PHS employees—like regular PHS employees—

receive immunity only from actions that occurred “within 

the scope of [their] office or employment at the time of the 

incident out of which the suit arose.” Id. § 233(c). The 

“scope of employment” determination is the Attorney 

General’s to make. Id.; see also 28 U.S.C. § 2679(d)(1) 

(similar). Only certain actions or omissions are therefore 
BLUMBERGER V. TILLEY 29

“covered.” See Coverage, Black’s Law Dictionary (12th ed. 

2024) (“Inclusion of a risk under an insurance policy,” and 

“is often used interchangeably with insurance or 

protection.”). We repeat: “Deemed” and “covered” are 

different determinations made by different department 

heads. The first denotes whether the Secretary has 

determined that a qualified entity’s employees have PHS 

status for a “calendar year.” 42 U.S.C. § 233(g)(1)(A). The 

second, whether the Attorney General has determined that a 

PHS employee was acting within the scope of his 

employment “at the time of the incident out of which the suit 

arose.” Id. § 233(c).

The division of labor that Congress has made between 

the Secretary (who determines an entity’s deemed status) and 

the Attorney General (who determines an employee’s 

coverage status) reflects the unique expertise of the two 

actors. HHS possesses comparative expertise in 

administering healthcare policies and services. See, e.g., 

Goffney v. Becerra, 995 F.3d 737, 746 (9th Cir. 2021) 

(recognizing HHS’s “core expertise . . . [in] the 

administration of the Medicare program”). In administering 

FSHCAA, the agency draws from that expertise when 

deciding whether to deem an entity a PHS employee. Before 

approving a deeming application, the Secretary must have 

“reviewed and verified professional credentials, references, 

claims history, fitness, professional review organization 

findings, and license status of its physicians and other 

licensed or certified health care practitioners,” 42 U.S.C. 

§ 233(h)(2), and he must ensure that the entity “has 

implemented appropriate policies and procedures to reduce 

the risk of malpractice,” id. § 233(h)(1). The Attorney 

General, by contrast, possesses expertise in litigation 

involving the United States. He is charged with vindicating 
30 BLUMBERGER V. TILLEY

the interests of the United States in court and defending the 

public fisc; indeed, FSHCAA tasks the Attorney General 

with “defend[ing] any civil action or proceeding brought in 

any court against any person” covered by the statute. Id.

§ 233(b). The Attorney General is intimately familiar with 

the legal doctrine governing scope of employment in tort 

cases. See id. § 233(c); see also, e.g., 28 U.S.C. § 2679(c) 

(“The Attorney General shall defend any civil action or 

proceeding brought in any court against any employee of the 

Government . . . .”). The different actors are tasked with 

different responsibilities, reflecting their different expertise. 

The Secretary makes the ex-ante deeming decision by 

relying on his public health expertise; the Attorney General 

makes the ex-post scope-of-employment certification by 

relying on his experience defending the United States’s 

interests in court. The logic of the statute depends on 

policing the boundaries between the Secretary’s deeming 

decision and the Attorney General’s coverage determination.

The Third Circuit’s recent nonprecedential decision in 

Doe v. Centerville Clinics Inc., No. 23-2738, 2024 WL 

3666164 (3d Cir. Aug. 6, 2024) (nonprecedential), illustrates 

the dangers of eliding this distinction. There, the Third 

Circuit rejected an argument by Centerville Clinic that, 

“because it was a ‘deemed’ PHS employee under § 233 when 

the events giving rise to this action occurred, it ha[d] the 

right to remove and removal under § 233(l)(1) should be 

automatic upon the Attorney General’s appearance.” Id. at 

*2. The court accused Centerville of “misread[ing] the 

statute” by “conflating the Attorney General’s prior deeming 

determination with its specific coverage determination.” Id. 

But as we have emphasized, the Secretary—not the Attorney 

General—makes the prior deeming determination. Indeed, 

the Secretary’s deeming determination is binding on the 
BLUMBERGER V. TILLEY 31

Attorney General. See 42 U.S.C. § 233(g)(1)(F). Congress 

understood the difference between the Secretary’s decision 

deeming a facility qualified under § 233(g)(1)(A) and the 

Attorney General’s litigation-specific decision under 

§ 233(c) that a deemed employee was covered with respect 

to a particular incident. The Attorney General’s ex-post 

scope-of-employment determination is relevant to whether 

the defendant is ultimately covered—not whether the 

defendant has been deemed. As we explain next, § 233(l)(1) 

obligates the Attorney General to report on the Secretary’s 

deeming decision, not to report the Attorney General’s 

ultimate coverage decision.

2. Section 233(l)(1) refers to enumerated categories of 

medical conduct

With the important distinction in mind between being 

deemed and being covered, we now consider § 233(l)(1). 

Many of the traditional tools of statutory interpretation we 

have at our disposal point in different directions when 

applied to § 233(l)(1). The weight of textual support for 

each side, however, is not in equipoise; the statute’s text and 

structure generally favor a reading of subsection (l)(1) that 

requires the Attorney General to advise the state court 

whether the employee was deemed a PHS employee by the 

Secretary for the relevant time period and was providing the 

categories of medical services for which he was deemed.

To start, the statute’s operative language focuses on the 

Secretary’s ex-ante deeming decision—not the Attorney 

General’s ex-post coverage decision. Subsection (l)(1) 

requires the Attorney General to report “whether the 

Secretary has determined under subsections (g) and (h)” that 

the employee is “deemed” to be a PHS employee. 42 U.S.C. 

§ 233(l)(1). As we have explained, “deemed” is a value-
32 BLUMBERGER V. TILLEY

laden term in the context of FSHCAA, referring to the

decision by the Secretary to treat certain entities as PHS 

employees for a calendar year. Subsection (l)(1)’s crossreferences to subsections (g) and (h) confirm as much, 

referring expressly to the provisions of FSHCAA governing 

the Secretary’s prospective deeming decision. See, e.g., id.

§ 233(g)(1)(A) (“[S]ubject to the approval by the Secretary 

. . . [an employee] shall be deemed to be an employee of the 

Public Health Service for a calendar year . . . .”).

The Secretary’s ex-ante deeming decision applies with 

respect to certain categories of acts or omissions. The statute 

imbues the phrase “actions or omissions” with a particular 

meaning. Full- and part-time employees are deemed with 

respect to “the performance of medical, surgical, dental, or 

related functions.” Id. § 233(a). Part-time contractors, 

however, are deemed only with respect to “services in the 

fields of family practice, general internal medicine, general 

pediatrics, or obstetrics and gynecology.” Id.

§ 233(g)(5)(B). A full-time heart surgeon at a deemed entity 

is deemed even with respect to dental functions. If she 

performs a root canal on a patient and is sued for medical 

malpractice arising from that procedure, she is deemed with 

respect to the acts or omissions giving rise to the suit—

although she might not be covered if she was acting beyond 

the scope of her employment as a heart surgeon. If the heart 

surgeon is a part-time contractor of the entity, she would 

neither be deemed nor covered with respect to the dental 

procedure. The Secretary’s prospective deeming decision 

thus applies with respect to only certain classes of acts or 

omissions, which may differ depending on one’s 

employment status.

Friedenberg corroborates this reading of the statute. 

There, “Plaintiffs alleged negligence and wrongful death 
BLUMBERGER V. TILLEY 33

claims against Defendants for violating their duty to report a 

court-ordered . . . patient’s refusal to comply with the 

medical terms of his probation.” 68 F.4th at 1118. The 

defendants removed the action to federal court, claiming 

§ 233 immunity as deemed PHS employees. Id. The district 

court rejected their immunity argument, reasoning that the 

defendants’ deemed status applies only with respect to 

plaintiffs who are also patients of the deemed entity. Id.

We reversed. Although we were not construing the scope 

of § 233(l)(1), we noted that “§ 233 immunity does not turn 

on who brings the claim, but rather whether the conduct 

giving rise to the claim arose out of the Defendants’ 

performance of ‘medical, surgical, dental, or related 

functions.’” Id. at 1125–26 (quoting 42 U.S.C. § 233(a)). 

We continued, “the statute contemplates the types of actions 

for which deemed PHS employees are covered . . . . [T]he 

claim must result from the performance of these services.” 

Id. at 1126; see also id. at 1127 (“[D]eemed PHS employees 

are entitled to immunity from claims resulting from 

providing ‘medical, surgical, dental, or related’ services to 

‘patients’ . . . .” (quoting 42 U.S.C. § 233(a), (g)(1)(B)); id.

(“[A]s long as a claim is derived from providing services to 

subjects of the healthcare provider, the deemed PHS 

employee is immune from suit.”). Reading Friedenberg in 

combination with § 233(l)(1) confirms that the Attorney 

General must notify the state court whether the defendant 

was deemed during the relevant time period and whether the 

complaint arises out of the performance of services listed in 

§ 233(a) (for all employees and full-time contractors) or 

§ 233(g)(5)(B) (for all part-time contractors).

Section 233(i) bolsters our conclusion that “actions or 

omissions” is a categorical status that relates to the effect of 

the ex-ante deeming decision. “Notwithstanding 
34 BLUMBERGER V. TILLEY

subsection (g)(1)”—the prospective deeming section—the 

Attorney General may, in consultation with the Secretary,

categorically exclude an employee from the PHS-deemed 

status of his employer “if treating such individual as such an 

employee would expose the Government to an unreasonably 

high degree of risk of loss.” Id. § 233(i)(1). Having made 

such a determination, the Attorney General notifies the 

employee, and the exclusion “appl[ies] only to acts or 

omissions occurring after the date such notice is received.” 

Id. § 233(i)(2) (emphasis added). In this context, “acts or 

omissions” is tethered to the class of services for which the 

employee was previously deemed. It is not a synonym for 

scope of employment but is instead a categorical, forwardlooking phrase.

It is through this lens that we understand 

subsection (l)(1)’s phrase, “deemed . . . with respect to the 

actions or omissions” giving rise to the lawsuit. A defendant 

satisfies these requirements if he was deemed for the 

relevant time period and was providing services for which 

§ 233 would supply immunity. In those cases, the Attorney 

General is required to provide positive notice to the state 

court. The Attorney General may reply in the negative if the 

acts or omissions identified in the complaint fall outside the 

category of services for which the defendant is deemed, such 

as a part-time contractor sued for negligent dental care. The 

Attorney General may also reply in the negative if the 

defendant was not deemed for the time period encompassing 

the relevant acts or omissions. We note that the “with respect 

to the actions or omissions” language will most often apply 

in cases involving part-time contractors, because their § 233 

immunity is limited to specific categories of services. Fulland part-time employees, however, are generally covered for 

all “medical, surgical, dental, or related functions,” id.
BLUMBERGER V. TILLEY 35

§ 233(a), so when a plaintiff brings a medical malpractice 

suit against an employee for actions that occurred during the 

deemed time period, the “actions or omissions” limitation 

will play almost no role.

6

3. Section 233(l)(1) does not entail a scope-ofemployment determination

The Attorney General advances a contrary reading of the 

statute, urging that the phrase “with respect to the actions or 

omissions that are the subject of [the] civil action or 

proceeding” is equivalent to a scope-of-employment 

assessment, but one made by the Secretary. We decline to 

adopt this reading for several reasons.

First, we apply “the meaningful-variation canon.” Sw.

Airlines Co. v. Saxon, 596 U.S. 450, 457 (2022) (citing 

Antonin Scalia & Bryan A. Garner, Reading Law 170 

(2012)). Section 233 uses the phrase “scope of 

employment” in several places. E.g., 42 U.S.C. § 233(a), 

(c), (f). We assume this variation in language was intentional 

and that Congress did not intend to treat “actions or 

omissions” synonymously with “scope of employment.” 

Significantly, the phrase “scope of employment” is used in 

§ 233(l)(1), but it does not appear in the first sentence, which 

governs notice to the state court. Instead, it appears in the 

6 Our reading does not render this language superfluous, contrary to the 

dissent’s suggestion, see Dissent at 63–64, because the provision still 

does substantial work in cases involving part-time contractors. 

Regardless, “even if there is some surplusage, the [Supreme] Court has 

stated that ‘[r]edundancy is not a silver bullet’ when interpreting 

statutes.” Oklahoma v. Castro-Huerta, 597 U.S. 629, 649 (2022) (second 

alteration in original) (citation omitted). Particularly in a statute of this 

complexity, “some degree of statutory redundancy is not unusual.” 

Marquez-Reyes v. Garland, 36 F.4th 1195, 1204 (9th Cir. 2022).
36 BLUMBERGER V. TILLEY

second sentence: “Such advice shall be deemed to satisfy 

the provisions of subsection (c) that the Attorney General 

certify that an [entity or employee] was acting within the 

scope of their employment or responsibility.” Reading these 

two sentences together, when the Attorney General advises 

the state court of the deemed status of the employee, “[s]uch 

advice shall be deemed” to mean that the employee was 

acting within the scope of his employment. Id. § 233(l)(1) 

(emphasis added). The advice is not itself a final 

determination that the employee was acting in the scope of 

his employment. He is simply deemed to be such. See

Sturgeon v. Frost, 139 S. Ct. 1066, 1081 (2019) (noting that 

“deemed” creates a useful legal fiction to treat “something 

to be what it is not” (citation omitted)); Deem, Black’s Law 

Dictionary (7th ed. 1999) (“To treat (something) as if . . . it 

were really something else.”). It is a rebuttable presumption, 

a categorical consequence of the Secretary’s deeming 

decision, and is subject to the Attorney General’s further 

inquiry. The Attorney General may certify “at any time” that 

the defendant was acting within the scope of his 

employment, or the Attorney General may move in the 

federal district court to remand the case “on the merit that 

the case so removed is one in which a remedy by suit within 

the meaning of subsection (a) . . . is not available against the 

United States.” 42 U.S.C. § 233(c). In contrast to the 

Secretary’s deeming decision, the question of scope of 

employment is one that the Attorney General must make. Id.

Our dissenting colleague concedes that there is 

meaningful variation between the phrases “actions or 

omissions” and “scope of employment.” See Dissent at 65. 

The inference she draws runs in the opposite direction, 

however; she suggests that “actions or omissions” includes 

several components, including scope of employment. See 
BLUMBERGER V. TILLEY 37

id. For support, Judge Desai points to 42 C.F.R. § 6.6(c), 

which provides, “With respect to covered individuals, only 

acts and omissions within the scope of their employment . . . 

are covered.” It is tempting to read this regulation as 

embedding the scope of employment certification within the 

phrase “acts and omissions.” See Dissent at 63–64. But we 

must resist that temptation lest we conflate distinct concepts 

and phrases. The statute speaks of people who are 

“deemed . . . with respect to the actions or omissions that are 

the subject of such civil action or proceeding.” 42 U.S.C. 

§ 233(l)(1) (emphasis added). The regulation speaks to 

“covered individuals,” 42 C.F.R. § 6.6(c) (emphasis added), 

not deemed individuals. Those phrases have different 

meanings. Indeed, the statute uses the phrase “covered 

person” elsewhere, but not in § 233(l)(1). See, e.g., 42 

U.S.C. § 233(p)(1), (p)(7)(B). A covered individual has 

immunity from suit. But as we have explained, mere 

deeming status does not guarantee coverage. The regulation 

also defines the phrase “[c]overed acts and omissions,” id.

§ 6.6 (emphasis added), not “actions or omissions that are 

the subject of” the lawsuit, 42 U.S.C. § 233(l)(1). A person 

might be deemed with respect to the actions that give rise to 

the lawsuit and yet not be immune because only actions 

within the scope of employment are covered.

Second, and relatedly, the information the Attorney 

General must give is “whether the Secretary has determined” 

the deemed status of the employee under subsection (g). Id.

§ 233(l)(1) (emphasis added); see id. § 233(g)(1)(A). As 

explained above, that refers to the ex-ante deeming decision 

made by the Secretary of HHS. The government’s reading 

presupposes an additional deeming decision by the 

Secretary—one that occurs after litigation has commenced

and applies with respect to the “actions or omissions” giving 
38 BLUMBERGER V. TILLEY

rise to the suit. The dissent adopts that view, too, by 

suggesting that the phrase “acts or omissions” includes as a 

necessary component a scope of employment certification. 

See Dissent at 65. The statute, however, nowhere provides 

for such an ex-post deeming decision by the Secretary, only

an ex-post scope-of-employment certification by the 

Attorney General in subsection (c). 42 U.S.C. § 233(c). 

Because subsection (l)(1) cross-references the Secretary’s 

prospective deeming decision, we are satisfied that it does 

not create some sort of additional decision by the Secretary.

For that reason, Allen v. Christenberry, 327 F.3d 1290, 

1295 (11th Cir. 2003), has little to offer us here. The 

Attorney General and Blumberger cite Allen for the 

proposition that “[t]he statute does not provide for removal 

upon notification that no decision has been reached yet.” Id.

at 1295. The dissent follows their lead, reading Allen to 

foreclose our conclusion that the Attorney General was 

obligated to remove this case. See Dissent at 58. But Allen

involved a unique set of circumstances not present here. The 

Secretary had received a deeming application by the doctors, 

but it had not yet made an ex-ante deeming determination by 

the time the lawsuit was filed. The notice HHS sent to the 

doctors instead “stated that the Secretary of HHS was still 

considering whether to deem them employees of the 

PHS. . . . [N]o decision had been made as of that date.” 

Allen, 327 F.3d at 1295. The Attorney General appeared 

within fifteen days of the lawsuit, but it “did not advise the 

court of any determination by HHS, because none had been 

made as of that time.” Id. at 1294. Allen says nothing about 

whether the statute contemplates an ex-post deeming 

decision by the Secretary, nor does it say anything about 

whether the statute authorizes removal even when the 
BLUMBERGER V. TILLEY 39

Attorney General has not made a final decision about scope 

of employment.

Third, that the statute allots only 15 days for the Attorney 

General to make an appearance and give the required advice

after receiving notice of the suit weighs against the Attorney 

General’s construction of § 233. That is a very compressed 

timeframe in which to make a full-blown scope-ofemployment assessment. Such a requirement would 

obligate the Attorney General to receive notice of the case 

from HHS, conduct a full-blown investigation into the 

circumstances of the suit (which would include identifying 

and interviewing witnesses, reviewing employment 

contracts, and gathering other documents), render a scopeof-employment determination, communicate that decision to 

the Secretary of HHS, wait for the Secretary’s decision, and 

then ultimately advise the state court of the Secretary’s 

determination. Even if such expediency were possible, it 

makes more sense to construe § 233(l)(1) as requiring a 

simple up-down certification to the state court that the 

defendant has been deemed a PHS employee for the time 

period in question with respect to the category of services 

identified in the complaint. That requires access to only two 

documents—the deeming notice issued by HHS and the 

complaint. The Attorney General then has time to decide 

whether the deemed employee was acting within the scope 

of his employment, and he may argue to the federal district 

court upon removal that the case should be remanded 

because the conduct at issue fell outside the scope of the 

defendant’s employment. See id. § 233(c).

Fourth, it makes sense that Congress would have placed 

the onus for notifying the state court on the Attorney General 

and not on the Secretary or the employee. If the United 

States is to be substituted in for the employee, the Attorney 
40 BLUMBERGER V. TILLEY

General is responsible for defending the PHS in court, not 

the Secretary. Moreover, in many cases, the employee will 

likely be unaware of his deemed status at the time the suit is 

filed. Even if the medical center ultimately corresponds with 

the Secretary of HHS, the employee may be entirely 

oblivious to his status and the entity’s communication. The

Attorney General’s notice of the employee’s deemed status 

serves to advise not only the state court, but also the 

employee, of the potential for § 233 immunity.

These principles are on full display in this case. Eisner 

notified the Secretary of HHS of the suit against Dr. Tilley, 

and the Secretary notified the Attorney General. Within 15

days, the Attorney General was obligated to advise the state 

court whether the Secretary had deemed Dr. Tilley to be a 

PHS employee during 2018 and whether the complaint arose 

out of “the performance of medical, surgical, dental, or 

related functions.” This was a simple up-or-down decision. 

It was a question of Dr. Tilley’s legal status. In this case, the 

question of Dr. Tilley’s status could be answered by looking 

at the “Notice of Deeming Action” issued by HHS’s Health 

Resources and Services Administration (HRSA), and the 

complaint. HRSA issued the notice on August 11, 2017, to 

Eisner. The notice covered Eisner and its employees from 

January 1 to December 31, 2018, and recited that it was 

issued pursuant to 42 U.S.C. § 233(g)–(n). The notice 

further stated that it covered Eisner’s employees “for 

damage for personal injury, including death, resulting from 

the performance of medical, surgical, dental, or related 

functions.” And the complaint clearly states that 

Blumberger’s cause of action arose out of conduct that is 

medical or surgical in nature, alleging that Dr. Tilley 

“negligently failed to provide proper medical care.” 
BLUMBERGER V. TILLEY 41

Despite the clarity of those documents, the Attorney 

General failed to give the state court notice in July 2021 that 

Dr. Tilley had been deemed a PHS employee during 2018

and was providing medical services of the type for which he 

might enjoy immunity from malpractice liability. Instead, 

the Attorney General advised the state court that Dr. Tilley’s 

deemed status was “under consideration.” A year later, in 

July 2022, the Attorney General provided an amended notice 

to the state court. This time, it misleadingly advised the state 

court that Dr. Tilley was “not 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 the above captioned action.” We assume that the notice 

meant to state that Dr. Tilley was not acting within the scope 

of his employment at the time of the incident out of which 

the suit arose. See 42 U.S.C. § 233(c). But, as discussed, 

the Attorney General need only have confirmed that Dr. 

Tilley had been deemed and that the lawsuit arose out of a 

category of covered services.

To be clear, nothing in the statute precludes the Attorney 

General from also reporting its coverage determination to 

the state court, even simultaneously with the § 233(l)(1) 

advisal to the state court that an employee has been deemed. 

There is nothing inappropriate with the Attorney General 

reporting in the same notice both its own litigation-related 

coverage decision and the Secretary’s prospective deeming 

decision. But it is an employee’s deemed status, not covered 

status, that triggers the removal provisions of § 233(l)(1). 

Any advice the Attorney General may give to the state court 

about its ultimate coverage decision has no legal 

consequence—one way or another—under § 233(l)(1). So, 

if the Attorney General advises that the defendant was 

deemed with respect to the actions or omissions giving rise 
42 BLUMBERGER V. TILLEY

to the suit but that the defendant was not acting within the 

scope of his employment, removal is necessary. The 

Attorney General may then seek “a hearing on a motion to 

remand,” id. § 233(c), arguing “that the case so removed is 

one in which a remedy by suit within the meaning of 

subsection (a) . . . is not available,” id., because the 

defendant was not “acting within the scope of his office or 

employment,” id. § 233(a). In this case, the Attorney 

General could have advised that Dr. Tilley was deemed—but 

not covered7—with respect to the actions or omissions 

giving rise to the lawsuit. The Attorney General would then 

have had to remove the case under § 233(c), but it could have 

sought remand by arguing that Dr. Tilley was not acting 

within the scope of his employment during the allegedly 

tortious conduct. But as we have discussed, the Attorney 

General blended the two inquiries, inaccurately reporting Dr. 

Tilley’s deemed status when it intended to report its ultimate 

coverage determination.

The dissent claims that our “interpretation is 

impractical” by “compel[ling] the Attorney General to 

replace a defendant and remove a case even when the 

defendant is obviously not covered.” Dissent at 66. Even if 

those concerns were relevant in our interpretive endeavor, 

we believe the dissent’s fears are overblown. If the “even 

when the defendant obviously is not covered,” id. at 66, a 

party may decide not to oppose remand to the state court. In 

those cases, there are costs to opposing remand. “An order 

remanding the case may require payment of just costs and 

actual expenses, including attorney fees,” if a party 

7 We express no view as to whether Dr. Tilley was acting within the scope 

of his employment, or otherwise covered, with respect to the actions or 

omissions giving rise to the lawsuit.
BLUMBERGER V. TILLEY 43

baselessly opposes the government’s motion to remand. 28 

U.S.C. § 1447(c); see also BP, 141 S. Ct. at 1542. And “the 

Federal Rules of Civil Procedure allow courts to sanction 

frivolous arguments made in virtually any context.” BP, 141 

S. Ct. at 1543. Regardless, although the dissent is correct 

that our interpretation may lead to certain inefficiencies, our 

sole “task is to discern and apply the law’s plain meaning as 

faithfully as we can, not ‘to assess the consequences of each 

approach and adopt the one that produces the least 

mischief.’” Id. (citation omitted).

In sum, the Attorney General did not give the state court 

timely notice of the Secretary’s decision, as required by 

§ 233(l)(1). Had it done so, the Attorney General would 

have been obligated to remove the case to federal court. If 

the Attorney General subsequently determined before trial 

that Dr. Tilley was not acting within the scope of his fictive 

PHS employment, the Attorney General was free to seek 

remand to state court. Id. § 233(c). And Dr. Tilley would 

have been entitled to a hearing in a federal court to determine 

his status. Id.

B. The Presumption of Reviewability

A contrary reading of the statute would effectively 

insulate the Attorney General’s deeming advice to the state 

court—and the ultimate decision not to certify scope of 

employment—from judicial review. If subsection (l)(1) 

allows the Attorney General to advise in the negative 

because it decides that the employee was not acting within 

the scope of his employment, the employee has no 

meaningful forum in which to challenge the government’s 

failure to certify scope of employment.

There are a number of reasons why we should decline a 

reading of FSHCAA that would deprive an employee of a 
44 BLUMBERGER V. TILLEY

federal hearing to determine his status. First, FSHCAA itself 

contemplates a federal forum for resolving any disputes over 

the employee’s PHS status. It expressly provides for a 

federal hearing in two instances. First, if the Attorney 

General removes the case from state court to federal district 

court, the court may conduct “a hearing on a motion to 

remand.” Id. § 233(c). Second, if the Attorney General fails 

to appear in state court, the defendant-employee may remove 

the case and the district court must conduct a hearing and 

make “a determination[] as to the appropriate forum.” Id.

§ 233(l)(2). We are reluctant to read into FSHCAA a path 

by which the Attorney General can avoid a federal forum for 

such a hearing.

The dissent (at 68–69) and government point out, 

properly, that the Westfall Act provides expressly for a 

hearing in the event that the Attorney General refuses to 

certify scope of employment for federal employees who are 

sued. See 28 U.S.C. § 2679(d)(3) (“In the event that the 

Attorney General has refused to certify scope of office or 

employment under this section, the employee may at any 

time before trial petition the court to find and certify that the 

employee was acting within the scope of his office or 

employment.”). The dissent and government also point out, 

again correctly, that FSHCAA contains no such explicit 

provision, and so, they argue, we should assume that 

Congress meant to preclude judicial review of refusal-ofcoverage decisions under § 233.

The narrow construction of § 233 by reference to 

§ 2679(d)(3) is plausible, but it is not so unequivocally clear 

as to overcome the Supreme Court’s strong presumption in 

favor of judicial review. The case most directly on point is 

De Martinez v. Lamagno, 515 U.S. 417 (1995), which 

involved a challenge to the status of a federal employee 
BLUMBERGER V. TILLEY 45

under the Westfall Act. In 1991, Dirk Lamagno, a Drug 

Enforcement Administration agent, collided with Katia De 

Martinez’s car in Colombia—allegedly while Lamagno was 

intoxicated. Because Lamagno enjoyed diplomatic 

immunity from suit in Colombian courts, De Martinez filed 

a diversity action in U.S. District Court for the Eastern 

District of Virginia. Id. at 420–21. In relevant part, like 

FSHCAA, the Westfall Act authorizes the Attorney General 

to certify that an employee “was acting within the scope of 

his office or employment at the time of the incident out of 

which the claim arose.” 28 U.S.C. § 2679(d)(1). If the 

Attorney General so certifies, the United States is substituted 

as the defendant, the employee is dismissed from the action,

and the case then proceeds as an FTCA action against the 

government. See De Martinez, 515 U.S. at 419–20.

In Lamagno’s case, the Attorney General certified that 

Lamagno was acting within the scope of his employment at 

the time of the accident. Id. at 421. This certification would 

have been fatal to De Martinez’s tort claim because the 

FTCA’s waiver of sovereign immunity contains an exception 

for claims arising in a foreign country. See 28 U.S.C. 

§ 2680(k). So, if the United States were substituted as the 

defendant, De Martinez would have been “left without a tort 

action against any party.” De Martinez, 515 U.S. at 420. De 

Martinez therefore sought judicial review of the Attorney 

General’s scope-of-employment certification.

The Supreme Court ultimately held the scope-ofemployment certification judicially reviewable. To begin, 

the Court recognized that “Congress did not address this 

precise issue unambiguously, if at all,” and that the statute 

was “open to divergent interpretation.” Id. at 424; see id. at 

434 (“[B]oth sides have tendered plausible constructions of 

a text most interpreters have found far from clear.”). But it 
46 BLUMBERGER V. TILLEY

recognized a “strong presumption that Congress intends 

judicial review” of such decisions. Id. at 424 (quoting 

Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670 

(1986)). The Court emphasized that “when a Government 

official’s determination of a fact or circumstances—for 

example, ‘scope of employment’—is dispositive of a court 

controversy, federal courts generally do not hold the 

determination unreviewable.” Id. It elaborated, “we have 

stated time and again that judicial review of executive action 

‘will not be cut off unless there is persuasive reason to 

believe that such was the purpose of Congress.’” Id.

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). 

Nothing in the text or history of the Westfall Act indicated 

that Congress intended “to make the Attorney General’s 

delegate the final arbiter of ‘scope-of-employment’ 

contests.” Id. at 425.

The Supreme Court’s rationale rejected a negativeimplication argument similar to the one raised here by the 

government and dissent. See Dissent at 68–69. In particular, 

the Westfall Act provides expressly that an “employee may 

at any time before trial petition the court to find and certify 

that the employee was acting within the scope of his office 

or employment.” 28 U.S.C. § 2679 (emphasis added). The 

Westfall Act contains no comparable provision authorizing 

an aggrieved plaintiff to petition a court for review of the 

Attorney General’s refusal to certify scope of employment. 

Relying on the weighty presumption in favor of 

reviewability, the Court repudiated the notion that Congress 

meant to exclude, by negative implication, a plaintiff from 

seeking judicial review merely because the statute provides 

unambiguously for one specific form of review.

De Martinez is not a perfect analogue, but it sets forth 

principles that are directly applicable here. In De Martinez, 
BLUMBERGER V. TILLEY 47

the Attorney General had an incentive to certify 

affirmatively Lamagno’s scope of employment; doing so 

would have triggered sovereign immunity, thereby shielding 

its employee Lamagno from personal tort liability and 

without cost to the United States. Here, the Attorney General 

has an incentive not to make an affirmative scope-ofemployment certification for the same reason—certifying 

Dr. Tilley’s scope of employment would potentially subject 

the government to tort liability. And that incentive seems far 

stronger in the instant case than in Lamagno’s case. Here, 

the government may be liable for the ultimate judgment; in 

De Martinez, the government would not have been directly 

subject to liability if Lamagno was not acting within the 

scope of his employment.

As the dissent correctly observes, the Attorney General’s 

decision to certify or not to certify Dr. Tilley’s scope of 

employment would not be entirely dispositive of the action, 

unlike in De Martinez. See Dissent at 68–69. Blumberger’s 

tort action would simply proceed against Dr. Tilley rather 

than against the government, so the scope-of-employment 

decision matters considerably less to the medical 

malpractice plaintiff here than it did in De Martinez. 

Someone will have to respond to Blumberger’s claims. But 

De Martinez and this case represent two sides of the same 

coin: a scope-of-employment certification would essentially 

be dispositive of Dr. Tilley’s immunity from suit as a PHS 

employee. If the Attorney General made a positive 

certification, the United States would be substituted as the 

defendant, shielding Dr. Tilley from personal liability 

altogether. We do not in any way impugn the integrity of the 

Attorney General or his representatives who must make 

scope-of-employment decisions. But the Attorney General 

has a duty to defend federal employees who are acting in the 
48 BLUMBERGER V. TILLEY

scope of their employment and, otherwise, to defend the 

public fisc by denying the responsibility of the United States. 

De Martinez instructs us to “adopt the reading that 

accords with traditional understandings and basic principles: 

that executive determinations generally are subject to 

judicial review.” 515 U.S. at 434. If Congress intended “to 

commit the critical ‘scope-of-employment’ inquiry to the 

unreviewable judgment of the Attorney General or her 

delegate, and thus to alter fundamentally the answer to the 

‘who decides’ question,” we would expect Congress to do so 

clearly. Id. at 426. But if one thing about § 233 is plain, it 

is that Congress did not plainly commit this inquiry to the 

unreviewable judgment of the Attorney General. 

The government’s and dissent’s argument about the 

express review provision in the Westfall Act gives us pause,

but it does not change our bottom line for two reasons. First, 

“[t]he force of any negative implication . . . depends on 

context.” NLRB v. SW Gen., Inc., 580 U.S. 288, 302 (2017) 

(quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 

(2013)). We are instructed to “assume[] that, when Congress 

enacts statutes, it is aware of th[e Supreme] Court’s relevant 

precedents.” Bartenwerfer v. Buckley, 598 U.S. 69, 80 

(2023). De Martinez, which was decided six months before 

§ 233(l)(1) was enacted, reiterated the Court’s 1986 

declaration that “federal judges traditionally proceed from 

the ‘strong presumption that Congress intends judicial 

review.’” 515 U.S. at 424 (citation omitted); see also Pub. 

L. No. 104-73, 109 Stat. 780. Put another way, Congress 

emphasized a default rule (judicial review), which Congress 

could alter only by clear statutory command. See id. at 424–

25. Congress could have repeated the Westfall Act’s express 

review provision here; great clarity would have followed. 

But in light of the Court’s recent presumption in favor of 
BLUMBERGER V. TILLEY 49

judicial review, Congress could well have understood that 

federal courts would review the scope of employment 

determination unless Congress specified otherwise. 

Accordingly, had Congress wanted to depart from that 

default rule in FSHCAA, it would have done so in 

unambiguous language, not “the statutory fog we confront 

here.” Id. at 425.

Second, and following closely from the last point, 

Congress is unequivocal when it intends to override the 

presumption of judicial review. For example, when dealing 

with HHS’s Provider Reimbursement Review Board, 

Congress stated in no uncertain terms that “[t]he 

determinations and other decisions described in 

section 1359ww(d)(7) of this title shall not be reviewed by 

the Board or by any court.” 42 U.S.C. § 1395oo(g)(2); see 

also, e.g., 26 U.S.C. § 6038A(4)(B) (“[S]uch determination 

by the Secretary shall be binding and shall not be reviewed 

by any court.”); cf., e.g., 26 U.S.C. § 7436 (“A decision 

entered in any proceeding conducted under this subsection 

shall not be reviewed in any other court . . . .”). So, although 

the negative-implication canon offers some support to the 

dissent’s reading, “this principle (‘expressio unius est 

exclusion alterius’) can be employed as easily to support the 

opposite interpretation.” United States v. Ray, 375 F.3d 980, 

990 (9th Cir. 2004). Forced to choose between two negative 

implications, we are reluctant to disturb what we view as the 

better reading of § 233(l)(1)—that Congress did in fact 

provide for a hearing on scope of employment, albeit in a 

more convoluted way than in § 2679. That conclusion is 

consistent with the principles underlying De Martinez.

Because the force of the negative implication is 

relatively weak, the dissent charts another path to avoid the 

De Martinez presumption: positing that judicial review 
50 BLUMBERGER V. TILLEY

remains available to Dr. Tilley in state court or an APA 

action. See Dissent at 70. Neither suggestion withstands 

scrutiny. A state-court hearing is unavailing for several 

reasons.8 Nothing in the text of § 233 authorizes such a state 

court hearing, unlike § 2679(d)(3). A state-court hearing 

might also be at odds with federalism and supremacy 

principles. Precedent sharply cabins a state court’s ability to 

interfere with the operation of federal administrative power. 

See, e.g., Clinton v. Jones, 520 U.S. 681, 691 n.13 (1997); 

Hancock v. Train, 426 U.S. 167, 178 (1976). It is hardly 

surprising, then, that federal district courts have “exclusive 

jurisdiction” over tort actions against the United States. 28 

U.S.C. § 1346(b)(1). Allowing a state court to require the 

substitution of the United States as a defendant by overriding 

the Attorney General’s decision not to certify scope of 

employment runs headlong into that exclusive federal 

jurisdiction requirement.

The possibility of APA review fares no better and raises 

more questions than answers. Is the Attorney General’s 

advice to the state court a final agency action for purposes of 

the APA?9 And if the APA were an adequate avenue for 

8 At oral argument, the government suggested that it had no opposition 

to state-court review of the Attorney General’s decision not to certify 

scope of employment. In papers filed with the state court, however, the 

government did express opposition: “Unlike the Westfall Act . . . 42 

U.S.C. § 233 contains no provision that specifically authorizes a deemed 

PHS employee to petition a state court for a scope of employment 

certification after denial by the Attorney General.” Dkt. No. 52 Ex. B at 

2. We grant Tilley’s requests for judicial notice, Dkt. Nos. 52 & 53, of 

the state-court filings relevant to this case. See Fed. R. Evid. 201(b)(2).

9 We have no need to answer that question today, but at least one of our 

district court colleagues has answered in the negative. See Pediatric & 

Fam. Med. Found. v. U.S. Dep’t of Health & Hum. Servs., No. 17-CV732, 2017 WL 8220596, at *7 (C.D. Cal. July 6, 2017).
BLUMBERGER V. TILLEY 51

judicial review, why did the De Martinez Court make no 

mention of it when applying the presumption of 

reviewability? Moreover, for those who care about the 

policy consequences of our decision, an APA action would 

create greater inefficiency than it solves. In all likelihood, it 

would require a simultaneous, collateral proceeding. Would 

the state-court suit be stayed in the interim? Could the statecourt plaintiff participate in the APA action? Would 

collateral estoppel limit the arguments that could be made in 

one forum or the other?10 Must the APA action proceed in 

the District of Columbia?

In the end, we are satisfied that our reading of § 233(l)(1) 

is correct as a textual matter and comports with the Supreme 

Court’s admonition that we should construe such provisions 

in favor of judicial review of scope-of-employment 

decisions.

C. The Appropriate Remedy to Enforce the Government’s 

Removal Obligation

The Attorney General was obligated to advise the state 

court in the affirmative of Dr. Tilley’s deemed status with 

respect to the relevant actions or omissions, so it was also 

10 The dissent’s reliance on El Rio Santa Cruz Neighborhood Health Ctr., 

Inc. v. U.S. Dep’t of Health & Hum. Servs., 396 F.3d 1265 (D.C. Cir. 

2005), is misplaced. There, the D.C. Circuit considered whether the 

statute’s removal provisions create a cause of action to challenge a 

negative ex-ante deeming decision—i.e., the Secretary’s decision not to 

prospectively and categorically deem all the entity’s physicians 

employees of the PHS under § 233(g)(1)(A). An APA action, the court 

reasoned, exists to challenge HHS’s prospective deeming decision. See 

id. at 1272–73. But El Rio says nothing about the availability of the APA 

to challenge the Attorney General’s failure to certify scope of 

employment once litigation against a handful of deemed employees has 

begun.
52 BLUMBERGER V. TILLEY

obligated to remove the case to federal court. See 42 U.S.C. 

§ 233(l)(1) (noting that such advice shall be deemed to 

satisfy § 233(c)’s scope-of-employment certification); id.

§ 233(c) (requiring removal by the Attorney General upon 

certification that the defendant was acting within the scope 

of his employment).

In most cases, the Attorney General would be able to 

satisfy this removal requirement “at any time before trial.” 

Id. § 233(c). Going forward, we trust that the Attorney 

General will act in good faith to remove cases as 

expeditiously as possible to avoid unnecessary delay, 

expense, and uncertainty. Upon removal, the Attorney 

General, defendant, or plaintiff can move within 30 days to 

remand the case on the basis that Dr. Tilley was not acting 

within the scope of his employment.

In this case, however, the government should have 

provided affirmative advice to the state court in July 2021, 

within 15 days of receiving notice of the suit against Dr. 

Tilley. Instead, it stated that Dr. Tilley’s status was “under 

consideration,” and then nearly one year later, it advised the 

state court that Dr. Tilley was not deemed a PHS employee 

with respect to the actions or omissions giving rise to this 

suit. This was incorrect, but it is hard to fault the 

government; before our decision today, the advice 

requirement of § 233(l)(1) was subject to different 

interpretations, each one plausible. Given the significant 

time that has passed since the government should have 

advised the state court of Dr. Tilley’s status, we choose to 

vacate the district court’s order remanding the lawsuit to 

state court and we remand this case to the district court for 

further proceedings consistent with § 233. See 28 U.S.C. 

§ 2106 (“[A] court of appellate jurisdiction may . . . remand 

the cause and . . . require such further proceedings to be had 
BLUMBERGER V. TILLEY 53

as may be just under the circumstances.”); cf., e.g., United 

States v. Bacon, 979 F.3d 766, 769–70 (9th Cir. 2020) (en 

banc) (applying the discretion afforded to appellate courts 

when fashioning remand remedies). The district court 

should, upon a timely motion to remand, hold a hearing to 

determine whether “the case so removed is one in which a 

remedy by suit within the meaning of subsection (a) . . . is 

not available against the United States . . . .” 42 U.S.C.

§ 233(c). At that hearing, the United States is free to contest 

whether Dr. Tilley was acting within the scope of his 

employment vis-à-vis the alleged acts of negligence.

In light of our disposition, we decline to consider 

whether Dr. Tilley’s removal under § 233(l)(2) was 

improper, but nothing in Part I of Judge Desai’s dissent casts 

doubt on our conclusions above. We similarly decline to 

consider whether the Attorney General’s July 2021 notice to 

the state court was so inadequate that we should consider the 

notice a failure to appear for purposes of § 233(l)(2). Nor do 

we decide whether, even if § 233(l)(2) removal was 

available to him, Dr. Tilley was required to remove on that 

basis within 30 days of the government’s deficient statecourt notice. See 28 U.S.C. § 1446(b)(3).

IV. CONCLUSION

To summarize, we vacate the district court’s order as to 

the § 1442 removal and remand for the district court to 

determine when Dr. Tilley first knew of his deemed status 

for the 2018 year and when he first received the deeming 

notice. The district court should then assess the timeliness 

of Dr. Tilley’s § 1442 removal under the § 1446(b)(3) 

standard. If the district court concludes that Dr. Tilley’s 

§ 1442 removal was timely, it should decide whether Dr. 
54 BLUMBERGER V. TILLEY

Tilley was acting under a federal officer for purposes of 

§ 1442.

Notwithstanding the potential untimeliness of Dr. 

Tilley’s § 1442 removal, we have jurisdiction to review the 

district court’s § 233 analysis. We conclude that the 

Attorney General was obligated under § 233(l)(1) to advise 

the state court that Dr. Tilley had been deemed a PHS 

employee with respect to the actions or omissions giving rise 

to the lawsuit. We reverse the district court’s conclusion that 

the Attorney General’s July 26, 2021, state-court notice 

satisfied the requirements of § 233(l)(1). The Attorney 

General should have removed the case in July 2021 or 

shortly thereafter.

We thus vacate the district court’s remand order. “The 

district court shall enter an order recalling the remand and 

shall notify the Los Angeles County Superior Court that the 

district court has resumed jurisdiction over the action.” 

Acad. of Country Music v. Cont’l Cas. Co., 991 F.3d 1059, 

1070 (9th Cir. 2021). We remand the case for proceedings 

consistent with this opinion. See 28 U.S.C. § 2106. Each 

party shall bear its own costs.

REVERSED in part, VACATED in part, and 

REMANDED.
BLUMBERGER V. TILLEY 55

DESAI, Circuit Judge, dissenting in part:

I respectfully dissent from Section III of the majority’s 

opinion addressing removal under 42 U.S.C. § 233.1 A state 

court action may be removed under § 233 in only two 

circumstances: (1) the Attorney General can remove the case 

after certifying that a “defendant was acting in the scope of 

his employment at the time of the incident” giving rise to the 

suit, 42 U.S.C. § 233(c), or (2) a defendant can remove the 

case if the Attorney General “fails to appear” in state court 

“within the time period prescribed” in § 233(l)(1), 42 U.S.C. 

§ 233(l)(2). Neither happened here. The Attorney General 

appeared in state court within the time period prescribed in 

§ 233(l)(1), but he did not certify that Dr. Tilley was acting 

in the scope of his employment at the time of the incident 

giving rise to Blumberger’s malpractice suit. Thus, the 

answer to the only question on appeal concerning § 233—

whether Dr. Tilley properly removed the case to federal 

court—is no. 

The majority circumvents this otherwise unavoidable 

conclusion by addressing an entirely different question: 

“Was the Attorney General required under § 233(l)(1) to 

inform the state court of Dr. Tilley’s deemed status for 2018, 

such that the government was obligated to remove the case 

to federal court?”2 Maj. Op. at 25–26. The majority 

1 I agree with the majority that it is unclear on this record whether Dr. 

Tilley’s 28 U.S.C. § 1442 removal was timely, but even an untimely 

§ 1442 removal gives us appellate jurisdiction to review Dr. Tilley’s 

§ 233 removal. 

2 The majority claims this question is properly before us because the 

“parties extensively briefed whether the Attorney General’s notice was 

sufficient under § 233(l)(1).” Maj. Op. at 26 n.5. But the parties 

discussed the sufficiency of the Attorney General’s notice when 
56 BLUMBERGER V. TILLEY

manufactures this inquiry because it fears that answering the 

question presented will lead to gamesmanship in future cases 

if the Attorney General timely appears in state court but fails 

to certify that the defendant was acting in the scope of his 

employment. The majority is not wrong to fear such 

potential consequences, but we cannot rewrite the language 

of the statute to protect against the possibility of unfortunate 

results. Beyond that, the majority’s holding will lead to 

absurd and impractical results and unduly burden the 

government. Indeed, the majority plucks the word “deemed” 

from § 233(l)(1) and reads it in isolation to create a per se 

removal rule every time a PHS employee is sued for medical 

malpractice, even if the employee was acting outside the 

scope of his employment. The majority’s approach erases 

language from § 233, eliminates the Attorney General’s role 

under the statute, and gives a procedural advantage to 

doctors in malpractice cases that belong in state court. I 

cannot go along with this approach. 

I. Dr. Tilley’s removal under § 233(l)(2) was improper. 

The sole question before us regarding § 233 is whether 

Dr. Tilley properly removed the case. I would hold that he 

did not. Under § 233(l)(1), the Attorney General must appear 

within fifteen days and advise the state court whether the 

Secretary has deemed the defendant a PHS employee “with 

addressing whether Dr. Tilley properly removed under § 233(l)(2) based 

on the Attorney General’s alleged failure to appear under § 233(l)(1). 

That is the question I address in Section I below, and one the majority 

never confronts. It expressly “decline[s] to consider” whether the 

Attorney General’s “notice to the state court was so inadequate that we 

should consider the notice a failure to appear for purposes of § 233(l)(2)” 

or whether “Dr. Tilley’s removal under § 233(l)(2) was improper.” Maj. 

Op. at 53. Indeed, the majority sidesteps the question presented in this 

case in lieu of one that can produce the majority’s favored result. 
BLUMBERGER V. TILLEY 57

respect to the actions or omissions that are the subject of 

such civil action or proceeding.” “If the Attorney General 

fails to appear in State court within the time period 

prescribed under paragraph (1), upon petition of any entity 

or officer, governing board member, employee, or contractor 

of the entity named, the civil action or proceeding shall be 

removed to the appropriate United States district court.” 42 

U.S.C. § 233(l)(2).

In July 2021, the Attorney General timely appeared and 

advised the state court that whether Dr. Tilley was “deemed” 

a PHS employee “with respect to the actions or omissions 

that are the subject of the above captioned action” was 

“under consideration.” A year later, the Attorney General 

updated this notice and advised the court that Dr. Tilley was 

“not deemed” a PHS employee “with respect to the actions 

or omissions that are the subject of the above captioned 

action.”

Dr. Tilley then removed under § 233(l)(2). He argued the 

Attorney General “failed to appear” under § 233(l)(1) when 

he first advised the court that Dr. Tilley’s coverage status was 

still “under consideration.”3 In Dr. Tilley’s view, the 

Attorney General must definitively advise the court whether 

Dr. Tilley is covered the first time the Attorney General 

appears in state court. Not so. Subsection (l)(1) requires only 

that the Attorney General appear in court within fifteen days 

after being notified of the filing and advise the court 

“whether” the government has made a coverage 

determination. The Attorney General did just that: he 

3 Dr. Tilley also argued the Attorney General “failed to appear” because 

he should have advised the court that Dr. Tilley was covered based solely 

on his status as an Eisner employee. But as discussed below, the Attorney 

General was not required to do so. 
58 BLUMBERGER V. TILLEY

advised the state court that the coverage determination was 

“under consideration.”

Section 233 allows a defendant to remove only if the 

Attorney General fails to appear within the time prescribed. 

It does not allow removal if the Attorney General appears 

and advises the court that the defendant is not covered. 42 

U.S.C. § 233(l)(2); see El Rio Santa Cruz Neighborhood 

Health Ctr., Inc. v. U.S. Dep’t of Health & Hum. Servs., 396 

F.3d 1265, 1271 (D.C. Cir. 2005). Nor does it allow 

“removal upon notification that no decision has been reached 

yet.” Allen v. Christenberry, 327 F.3d 1290, 1295 (11th Cir. 

2003). In Allen, the Eleventh Circuit held that the defendant 

doctors’ removal was improper because, as here, “[t]he 

Attorney General did appear . . . to give notice that no 

decision had been made,” yet “the defendant doctors 

themselves removed the case to federal court, something the 

statute does not permit.” Id. (emphasis added). The majority 

contends that Allen “has little to offer us here” because the 

Secretary “had not yet made an ex-ante deeming 

determination by the time the lawsuit was filed.” Maj. Op. at 

38. But just as the Secretary had deemed Eisner a PHS entity 

here, in Allen the Secretary had deemed the health center a 

PHS entity, and the doctors were contractors of the health 

center. Allen, 327 F.3d at 1292. The majority assumes that, 

because Dr. Tilley was an Eisner employee and Eisner had 

received a deeming notice, removal is a foregone conclusion. 

The Eleventh Circuit reversed the district court for making 

the same assumption in Allen. Id. at 1293, 1295 (rejecting 

the district court’s view that the case “should have been 

removed by the Attorney General” because the doctors 

“were contractors [of a deemed health center] entitled to the 

protections of 42 U.S.C. § 233”). 
BLUMBERGER V. TILLEY 59

At bottom, § 233 allows a defendant to remove in only 

one circumstance—when the Attorney General fails to 

appear. Because that did not happen here, Dr. Tilley’s 

removal under § 233(l)(2) was improper. 

II. The majority’s manufactured remedy for Dr. Tilley’s 

improper removal under § 233 is unsupported. 

The majority never addresses whether Dr. Tilley’s 

removal under § 233(l)(2) was proper. The only answer to 

that question is no, and that should end our inquiry under 

§ 233. But instead of deciding that question, the majority 

invents a solution for Dr. Tilley’s improper removal by 

concluding that the Attorney General should have removed 

the case. Even if that were an issue properly before us, the 

majority’s conclusion is unsupported. The text of § 233(l)(1) 

did not compel the Attorney General to advise the state court 

that Dr. Tilley’s status as a “deemed” employee extended to 

the conduct alleged in the lawsuit. The majority’s holding to 

the contrary distorts the statute’s text, renders much of the 

statute superfluous, assumes facts not before us, and is 

impractical. And a general policy favoring judicial review of 

agency decisions cannot save the majority’s flawed 

interpretation.

A. The text of § 233 did not compel the Attorney 

General to remove.

Section 233(l)(1) requires that the Attorney General 

advise the state court whether the Secretary has deemed the 

defendant a PHS employee “with respect to the actions or 

omissions that are the subject of such civil action or 

proceeding.” This advice to the court also satisfies § 233(c), 

which allows the Attorney General to certify that the 

defendant was acting in the scope of his employment during 

the incident giving rise to the complaint. The Attorney 
60 BLUMBERGER V. TILLEY

General’s advice under § 233(l)(1) is thus tied to the specific 

conduct alleged in the complaint—it tells the state court 

whether the alleged conduct falls under the defendant’s 

§ 233(a) coverage as a “deemed” PHS employee. 

Indeed, while the Secretary makes a prospective decision 

deeming a person eligible for § 233 coverage, that coverage 

is limited in many ways that depend on the facts in the 

lawsuit. The coverage applies only to injuries “resulting 

from the performance of medical, surgical, dental, or related 

functions” by a person “acting within the scope of his office 

or employment.” 42 U.S.C. § 233(a). And the person’s acts 

or omissions must involve services to the health center’s 

patients (or non-patients if certain criteria are met) and must 

relate to the health center’s grant-supported activities. 42 

U.S.C. § 233(g)(1)(C); 42 C.F.R. § 6.6(c), (d). 

In other words, the Secretary’s prospective deeming 

notice is only a precondition to the government’s ultimate 

decision to grant coverage. But whether a particular 

employee’s acts or omissions are indeed covered can be 

determined only after the lawsuit is filed. Consider a dentist 

employed by a deemed health center who “moonlights” as a 

plastic surgeon for private clients on the weekends. See 

Health Res. & Servs. Admin., HHS, Federal Tort Claims 

Act: Health Center Policy Manual, at 8 (explaining that 

coverage does not extend to “moonlighting” activities, 

defined as “professional activities outside of covered entity 

employment responsibilities and is not within the covered 

entity’s approved scope of project”). If a state court plaintiff 

sued the dentist for performing negligent dental work at the 

health center, the Attorney General likely must appear and 

remove the case. § 233(c), (l)(1). But if a plaintiff sued the 

dentist for a botched surgery performed during his 

moonlighting activity, § 233(l)(1) allows the Attorney 
BLUMBERGER V. TILLEY 61

General to advise the court that the employee was not 

deemed a PHS employee “with respect to the actions or 

omissions that are the subject of” the lawsuit. Under the 

majority’s new rule, the Attorney General no longer makes a 

coverage decision, and removal is required under both 

scenarios.

Here, the Secretary deemed Eisner a PHS employee for 

calendar year 2018. Consistent with § 233(a), the deeming 

notice stated that it covered Eisner for injuries “resulting 

from the performance of medical, surgical, dental, or related 

functions by PHS employees while acting within the scope 

of such employment,” and the coverage “extend[ed] to” 

Eisner’s officers, employees, and certain contractors. The 

notice did not specify whether any contracts or other criteria 

would permit coverage for services provided to non-Eisner 

patients. See 42 C.F.R. § 6.6(c), (d); § 233(g)(1)(C).

Blumberger did not sue Eisner. She sued Dr. Tilley—an 

Eisner employee—for services he performed at a different, 

non-federally funded hospital. As the majority concedes, we 

do not know the circumstances of Dr. Tilley’s work at the 

other hospital or whether Eisner required him to provide 

those services. Maj. Op. at 12 (noting that “the relationship 

between the two entities is not readily apparent from this 

record”). We only know that the government ultimately 

determined that Dr. Tilley was not deemed a PHS employee 

“with respect to the acts or omissions” in this lawsuit.

The majority fails to grapple with any of this. It instead 

concludes that the Attorney General must do no more than 

point to the piece of paper deeming Eisner a PHS entity, 

certify that any Eisner employee performing any medical 

services for any patient is covered, and remove the case to 

federal court. That is not what the statute requires.
62 BLUMBERGER V. TILLEY

First, the majority’s interpretation would render much of 

§ 233 meaningless. If the Attorney General must step in and 

remove every medical malpractice case when the defendant 

is employed by a deemed PHS entity, then what is the point 

of subsections (c) or (l)(1)? There would be no reason for the 

Attorney General to advise the court whether the defendant 

has been “deemed” an employee “with respect to the actions 

or omissions” alleged in the case, § 233(l)(1) (emphasis 

added), nor would there be any reason for the Attorney 

General to certify that the defendant was acting within the 

scope of his employment, § 233(c). The majority all but 

concedes this. Maj. Op. at 35 (noting that, under its 

interpretation, the “acts or omissions” clause in subsection 

(l)(1) “will play almost no role” for employees). “Under 

accepted canons of statutory interpretation, we must make 

every effort not to interpret a provision in a manner that 

renders other provisions of the same statute inconsistent, 

meaningless or superfluous.” In re HP Inkjet Printer Litig., 

716 F.3d 1173, 1184 (9th Cir. 2013) (cleaned up). Yet the 

majority’s interpretation of § 233(l)(1) does just that. 

My colleagues spill much ink distinguishing the 

Secretary’s “ex-ante” deeming decision from the Attorney 

General’s “ex-post” coverage decision. Maj. Op. at 28–31. 

This distinction does not support the majority’s reading of 

the statute. Although the Secretary makes a prospective 

decision deeming PHS employees eligible for § 233 

coverage, subsection (l)(1) asks the Attorney General to 

advise the court whether that prior deeming decision extends 

to “the actions or omissions that are the subject of [the] civil 

action or proceeding.” That is, the Attorney General must 

review the facts in the complaint and decide whether the 

alleged conduct falls within the scope of the Secretary’s 

decision deeming the defendant eligible for § 233 coverage. 
BLUMBERGER V. TILLEY 63

The majority contends that the Third Circuit’s recent 

unpublished opinion in Doe v. Centerville Clinics Inc., No. 

23-2738, 2024 WL 3666164, at *1 (3d Cir. Aug. 6, 2024) 

“illustrates the dangers of eliding [the] distinction” between 

the Secretary’s deeming decision and the Attorney General’s 

coverage decision. Maj. Op. at 30. Just the opposite. The 

Third Circuit interpreted the plain text of § 233 and 

understood the difference between the prior “deeming” 

decision and the specific coverage decision under subsection 

(l)(1). It correctly explained that “[a] prior annual 

determination under § 233(g) that [the defendant] is deemed 

a PHS employee—perhaps made well before the conduct 

related to the suit occurred—cannot satisfy § 233(l)(1)’s 

requirement that the government’s coverage determination 

account for the specifics of the conduct related to the 

pending lawsuit.” Id. at *2. The majority’s contention that 

subsection (l)(1) refers only to the pre-litigation deeming 

notice and does not allow the Attorney General to make a 

case-specific coverage decision cannot be squared with the 

language of the statute.

Second, the majority reads the “acts or omissions” clause 

in § 233(l)(1) far too narrowly. The majority contends that 

“acts or omissions” refers only to whether the conduct 

alleged in the lawsuit involves “medical, surgical, dental, or 

related functions.” 42 U.S.C. § 233(a). But that is only one 

component of § 233 coverage. A health center’s coverage 

extends only to employees who are, among other things: 

performing medical, dental, or surgical services; providing 

services that relate to the health center’s grant-funded 

activities; treating the health center’s patients unless certain 

criteria are met; and acting within the scope of their 

employment. 42 U.S.C. § 233(a), (g)(1); 42 C.F.R. § 6.6(b)–

(d). The “acts or omissions” at issue in the lawsuit must 
64 BLUMBERGER V. TILLEY

satisfy these criteria for the Secretary’s deeming decision to 

cover the defendant. Section 233’s implementing regulations 

bolster this interpretation. In a section titled “Covered acts 

or omissions,” the regulations list these separate components 

of § 233 coverage. 42 C.F.R. § 6.6 (emphasis added).

An example highlights the problem with reading “acts or 

omissions” as narrowly as the majority suggests. One 

coverage requirement is that the employee’s acts or 

omissions must occur “on [or] after the effective date of the 

Secretary’s” deeming notice. 42 C.F.R. § 6.6(a). If a lawsuit 

alleged that an employee performed negligent medical care 

before the Secretary’s deeming notice, the Attorney General 

could advise the state court under subsection (l)(1) that the 

defendant is not deemed an employee for purposes of the 

acts or omissions alleged in the case. The majority concedes 

as much. Yet under the majority’s view, the Attorney General 

cannot advise the state court that a defendant is not deemed 

an employee for acts or omissions that fail to satisfy another

component of coverage, such as scope of employment or 

services to covered patients. The one exception, in the 

majority’s view, is the coverage criteria requiring that the 

services are medical, dental, or surgical. This illogical 

interpretation finds no support in the language of § 233(l)(1). 

The statute broadly asks whether the defendant is deemed an 

employee “with respect to the acts or omissions” giving rise 

to the complaint. It does not parse out a small subset of 

coverage criteria.

Friedenberg v. Lane County does not support the 

majority’s reading of “acts or omissions.” 68 F.4th 1113 (9th 

Cir. 2023). That case considered the scope of § 233 

immunity for deemed health care centers and their 

employees. Id. at 1118. But its holding was narrow. It held 

only that § 233 coverage does not turn on whether the 
BLUMBERGER V. TILLEY 65

plaintiff in the tort action is the patient. Id. at 1126 (“While 

the claim must result from the performance of [covered] 

services, the claimant need not be a patient nor a recipient of 

medical or dental care for a deemed PHS employee to invoke 

§ 233 immunity.” (emphasis added)). Instead, “PHS 

employees are entitled to immunity from claims resulting 

from providing” covered services, regardless of the plaintiff. 

Id. at 1127 (citing 42 U.S.C. § 233(a), (g)(1)(B)). 

Friedenberg tells us nothing about the scope of “acts or 

omissions” in § 233(l)(1). 

The majority also posits that “Congress did not intend to 

treat ‘actions or omissions’ synonymously with ‘scope of 

employment.’” Maj. Op. at 35. True, but that does not justify 

the majority’s myopic reading of “acts or omissions.” 

Whether a doctor is deemed a PHS employee “with respect 

to the acts or omissions” at issue in the lawsuit includes 

several components. Scope of employment is only one of 

them. It thus makes sense that Congress used the broader 

term “acts or omissions” in the first part of subsection (l)(1) 

to reference the defendant’s coverage as a deemed PHS 

employee, and later used narrower language to reference one 

component of that coverage. 

Third, the majority assumes facts not before us. Even 

after acknowledging that the relationship between Eisner 

and the non-federally funded hospital where Dr. Tilley 

treated Blumberger “is not readily apparent from this 

record,” the majority concludes that Eisner’s status as a 

deemed PHS entity extends to Dr. Tilley’s services at the 

non-PHS hospital. The majority focuses on § 233(l)(1)’s 

reference to “the Secretary,” concluding that this must refer 

only to the Secretary’s prospective deeming decision without 

considering the conduct alleged in the lawsuit. But again, the 

Secretary’s deeming notice is only a precondition to 
66 BLUMBERGER V. TILLEY

coverage. The Secretary cannot make a deeming decision 

“with respect to the acts or omissions that are the subject of 

such civil action or proceeding” before the lawsuit is even 

filed. Subsection (l)(1) thus requires that the government 

decide whether the Secretary’s prior deeming decision 

covers the conduct at issue in the complaint. And here, the 

government decided that it did not. The majority assumes 

that decision was “incorrect,” Maj. Op. at 52, but nothing in 

the record supports that conclusion. 

Fourth, the majority’s interpretation is impractical. I 

agree with the majority that the government’s scope of 

employment decision will often take more than fifteen days. 

But the Attorney General can, as he did here, appear and 

advise the court that a decision has not yet been made. And 

if the government later determines that a defendant’s conduct 

is covered, the Attorney General can remove “at any time 

before trial” under § 233(c). Although fifteen days is a short 

window, it was intended to protect covered employees 

against default judgments if the Attorney General failed to 

appear. See H.R. Rep. 104–398, at 7 (104th Cong., 1st Sess. 

1995). It does not suggest that subsection (l)(1) should be 

interpreted to mean the Attorney General can only point to 

the Secretary’s prior deeming notice and cannot consider 

whether that notice covers the conduct alleged in the lawsuit. 

Such a strained interpretation would lead to absurd results. 

It would compel the Attorney General to replace a defendant 

and remove a case even when the defendant obviously is not 

covered (e.g., the hypothetical health center dentist 

moonlighting as a plastic surgeon for private clients). 

The majority suggests that nothing stops the Attorney 

General from advising the state court that the defendant is 

not covered, which would have “no legal consequence” 

because he nevertheless must remove the case to federal 
BLUMBERGER V. TILLEY 67

court. Maj. Op. at 41. This only highlights the absurdity of 

the majority’s view. The Attorney General’s notice under 

subsection (l)(1) that the defendant was deemed a PHS 

employee with respect to the acts or omissions at issue in the 

lawsuit “shall be deemed to satisfy the provisions of 

subsection (c) that the Attorney General certify that [the 

defendant] was acting within the scope of their employment 

or responsibility.” If the Attorney General decides that the 

Secretary’s deeming decision extends to the conduct alleged 

in the lawsuit, he thus necessarily decides that the conduct 

was within the scope of the defendant’s employment. My 

colleagues in the majority try to blunt the severity of their 

new rule by suggesting that the Attorney General can always 

move to remand if the government later concludes that the 

conduct alleged in the lawsuit was not within the scope of 

the defendant’s employment. But this purported “no harm, 

no foul” approach suffers from a fatal flaw. Under 28 U.S.C. 

§ 1447(c), a motion to remand must be filed within thirty 

days and, in many cases, the government will not be able to 

make a scope of employment decision within that timeframe. 

In any event, requiring the government to remove a case only 

to move to remand its own removal is inefficient and 

impractical.

In sum, § 233(l)(1) requires that the Attorney General 

advise the state court whether the conduct at issue in the 

lawsuit falls under the defendant’s § 233 coverage as a 

deemed PHS employee. It does not require that the Attorney 

General merely point to the Secretary’s prior deeming notice 

without considering the facts alleged in the case. 
68 BLUMBERGER V. TILLEY

B. A “presumption of reviewability” does not require 

removal.

The majority contends that the government’s reading of 

the statute “would effectively insulate the Attorney 

General’s deeming advice to the state court—and the 

ultimate decision not to certify scope of employment—from 

judicial review.” Maj. Op. at 43. That is neither relevant nor 

accurate. 

For starters, a presumption favoring judicial review of 

agency decisions does not impact the limited question before 

us. Section 233 allows doctors to remove in one 

circumstance: when the Attorney General fails to appear. 42 

U.S.C. § 233(l)(2). That did not happen here, and we may 

not rewrite the statute to allow removal based on a general 

policy favoring judicial review. E.g., Lamie v. U.S. Tr., 540 

U.S. 526, 538 (2004) (stating that it is not the court’s role to 

“soften the import of Congress’ chosen words even if we 

believe the words lead to a harsh outcome”); Blount v. Rizzi, 

400 U.S. 410, 419 (1971) (“[I]t is for Congress, not this 

Court, to rewrite the statute.”). If Congress intended to grant 

defendants broad removal rights to seek federal court review 

of coverage determinations, it would have said so. Indeed, in 

the Westfall Act, Congress expressly granted federal 

employees the right to “petition the court to find and certify 

that the employee was acting within the scope of his office 

or employment.” 28 U.S.C. § 2679(d)(3). No such language 

exists in § 233. 

The majority’s reliance on De Martinez v. Lamagno, 515 

U.S. 417 (1995) is thus misplaced. There, the Supreme Court 

considered whether the Westfall Act allowed a plaintiff to 

seek court review of the government’s scope of employment 

determination after the government certified that a defendant 
BLUMBERGER V. TILLEY 69

was acting within the scope of his employment, substituted 

in as the defendant, then asserted that the United States was 

immune. Id. at 420. The Court noted that the Westfall Act’s 

provisions “work together to assure that” scope of 

employment disputes “may be resolved in federal court,” 

including the provision “specifically allow[ing] employees 

whose certification requests have been denied by the 

Attorney General[] to contest the denial in court.” Id. at 431 

(citing 28 U.S.C. § 2679(d)(3)).4 And when discussing the 

policy favoring judicial review, the Court focused on the 

dispositive nature of the government’s scope of employment 

determination. Id. at 424 (explaining that, when a 

government official’s decision “is dispositive of a court 

controversy, federal courts generally do not hold the 

determination unreviewable”). Because the United States 

was immune from suit, its certification that the defendant 

was acting within the scope of his employment defeated the 

plaintiff’s claims. 

This reasoning does not apply here. The Westfall Act, 

unlike § 233, has explicit language allowing a defendant to 

petition for federal court review. See Hui v. Castaneda, 559 

U.S. 799, 807 (2010) (finding it “telling” that Congress used 

different language in the Westfall Act than in § 233); 

O’Brien v. United States, 56 F.4th 139, 146 (1st Cir. 2022) 

(“The differences between the Westfall Act and [§ 233] . . . 

are real, not simply technical.”). We should “presume that 

4 The majority posits that, because De Martinez was decided six months 

before § 233(l)(1) was enacted, “Congress could well have understood 

that federal courts would review the scope of employment determination 

unless Congress specified otherwise.” Maj. Op. at 49. That is pure 

speculation, and it ignores that the Court expressly relied on the Westfall 

Act’s provision for federal court petitions, yet Congress declined to enact 

a similar provision in § 233.
70 BLUMBERGER V. TILLEY

such drafting decisions are deliberate.” United States v. 

Alexander, 725 F.3d 1117, 1121 (9th Cir. 2013). And the 

government’s determination that Dr. Tilley is not covered 

under § 233 would not dispose of Blumberger’s case. She 

can still proceed against Dr. Tilley and the other defendants 

in state court.

What’s more, Dr. Tilley is not left without any avenue for 

judicial review of the government’s coverage decision. He 

could seek review in state court, or he could file an APA 

action in federal court challenging the government’s 

negative coverage determination. Indeed, the D.C. Circuit 

has held that doctor defendants may file an APA claim 

challenging the government’s negative coverage decision, in 

part because “Congress almost certainly did not intend for 

the FSHCAA removal provisions of § 233(l)(2) to provide a 

review procedure for a negative deeming determination by 

the Secretary.” El Rio Santa Cruz, 396 F.3d at 1271. In short, 

Dr. Tilley may have other ways to challenge the 

government’s coverage decision, but he cannot remove the 

case to federal court under § 233.

* * *

Section 233 allows defendants to remove only if the 

Attorney General fails to appear within fifteen days. The 

Attorney General timely appeared, so Dr. Tilley’s removal 

was improper. We cannot cure that improper removal by 

rewriting the statute to require the Attorney General to 

remove the case. Nothing in § 233 requires the Attorney 

General to remove, and for reasons we cannot know on this 

record, the government decided that Dr. Tilley was not

“deemed” a PHS employee “with respect to” medical 

services he performed at a non-federally funded hospital. 

The majority oversteps by blindly rejecting the 
BLUMBERGER V. TILLEY 71

government’s decision and compelling removal. In doing so, 

the majority creates a per se removal rule for all PHS 

employees going forward, regardless of whether they were 

acting in the scope of their employment. Such a per se 

removal rule is contrary to the plain language of § 233 and, 

despite the potential for gamesmanship by the government 

under the statutory language as written, it is for congress not 

the courts to amend the statute if it wishes to avoid the 

unintended consequences of its law. I respectfully dissent.