United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
before the Court is defendant Southern Illinois Hospital
Services d/b/a Memorial Hospital of Carbondale's
(“Memorial Hospital”) motion to remand (doc.
120). Based on the following, the Court finds that it lacks
subject matter jurisdiction, grants the motion to remand and
remands this matter to the Jackson County, Illinois Circuit
21, 2016, dismissed defendants United States of America and
Dr. Woo Hyun Sohn removed this matter to this Court based on
42 U.S.C. § 233, the Federally Supported Health Centers
Assistance Act (“FSHCAA”) (doc. 1). The dispute
arises out of an alleged defective robot-assisted
hysterectomy underwent by plaintiff on April 25, 2014, at
Memorial Hospital. Plaintiff asserts the surgery was
performed deviant to the applicable standard of medical care
in that she has suffered from numerous ailments and maladies
post-surgery, all related to the botched procedure.
November 21, 2017, then defendant United States of America,
substituted for Dr. Woo Hyun Sohn under the FSHCAA (doc. 33),
moved for summary judgment due to plaintiff's failure to
exhaust her administrative remedies prior to adding the
United States as a party to her case (doc. 83). The Court
granted the motion, with prejudice, on May 22, 2018 (doc
116). Accordingly, only defendants Memorial Hospital and
Intuitive Surgical, Inc. remain in the litigation. The
question before the Court thus, is whether the Court retains
jurisdiction over the remaining state law claims when the
government is no longer a party in a suit removed and brought
to federal court via 42 U.S.C. § 233. The Court answers
in the negative.
Westfall Act v. Federally Supported Health Centers Assistance
courts are courts of limited jurisdiction and may only hear
cases authorized by the Constitution or Congress.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Any uncertainty as to federal jurisdiction
must be resolved in favor of remand. Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).
Here, 42 U.S.C. § 233, the FSHCAA, bestowed jurisdiction
on this Court when it was removed to the Southern District of
Illinois. Under section 233(a), a Federal Tort Claims Act
(“FTCA”) lawsuit against the United States is the
sole remedy “for damage or personal injury, including
death, resulting from the performance of medical, surgical,
dental, or related functions . . . by any commissioner
officer or employee of the Public Health Service while acting
within the scope of his office or employment.” Under
the FSHCAA, entities and individuals are “deemed”
to be employees of the Public Health Service solely for
purposes of the remedy described above in section 233(a). At
all relevant times to the allegations in the second amended
complaint, Dr. Sohn was an employee of Shawnee Health Service
and Development Corporation, and Shawnee Health Service and
Development Corporation was a deemed employee of the Public
Health Service in accordance with the FSHCAA. See 42
U.S.C. § 233(g)-(n). Additionally, the United States
Attorney certified that Shawnee Health Service and
Development Corporation was a deemed federal entity and that
Dr. Sohn was acting within the scope of his deemed employment
as an employee of the Public Health Service at the time of
the alleged incident. See Certification of Scope of
Employment (doc. 1, ex. C). In such cases, “[u]pon
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 civil action or
proceeding commenced in a State court shall be removed . . .
to the district court of the United States[.]” 42
U.S.C. § 233(c).
Notice of Removal (doc. 1), the FSHCAA is the only provision
cited as grounds for removal and plainly states that
“this action is removable pursuant to 42 U.S.C. §
233.” Id. at 3. The Court is aware that
previously, in its November 9, 2016 Order, it sua
sponte addressed jurisdiction and labeled the underlying
matter a “Westfall action” pursuant to 28 U.S.C.
§ 2679. See doc. 35 at 5. This label was in
error. Under the Westfall Act, federal employees are offered
absolute immunity from common-law tort claims arising out of
acts they undertake in the course of their official duties.
Osborn v. Haley, 549 U.S. 225, 229 (2007). Dr. Sohn
however, was not a federal employee, he was a deemed employee
of the Public Health Service under the provisions of the
FSHCAA. While both the Westfall and FSCHCA Acts behave
similarly in their allowance for the substitution of the
United States as a defendant and providing remedies against
the United States for certain wrongful conduct, they are not
one in the same; particularly, when it comes to their
a case brought pursuant to § 2679, when properly
certified, establishes conclusive federal jurisdiction, even
if the United States is later dismissed. See 28
U.S.C. § 2679 (d); see also Mitchell v. Alton
Memorial Hospital, 2016 WL 1637978, *2 (S.D. Ill. Apr.
26, 2016) (Herndon) (“The Westfall Act changes the
remand analysis. Because the Westfall Act makes the Attorney
General's certification conclusive for removal purposes,
certified Westfall cases differ ‘from the typical case
remanded for want of subject-matter jurisdiction'”)
(internal citation omitted). That is not true of the FSHCAA.
Under the FSHCAA, if an action is not available against the
United States, as is the case here, then the “case
shall be remanded to the State Court[.]” 42
U.S.C. § 233(c) (emphasis added). So, while similar, the
Acts are interpreted as two separate statutes that have very
different consequences when claims are no longer viable
against the United States.
the FSHCAA, section 233(a) makes the remedy against the
United States under the FTCA exclusive of any other civil
action claiming damages due to injury stemming from a Public
Health Service employee's alleged negligence. It is an
act of limited scope applying only to those deemed employees
of the Public Health Service. The broader reaching coverage
of the Westfall Act, applying to “employees of the
government, ” does not overlap with the provisions of
the FSHCAA. See Hui v. Castaneda, 599 U.S. 799, 800
(2010) (“Because § 233(a) refers only to
‘[t]he remedy ... provided by [the FTCA]
(emphasis added), only those portions of the FTCA that
establish its remedy are incorporated by § 233(a)[.] . .
. Section 2679(b) [the Westfall Act] is not such a
provision.”). As such, it is futile to try and argue
that the remand provisions of Westfall may be incorporated
here as to keep the case in federal court. See id.
at 800-01 (explaining that to layer all of the FTCA's
procedures contained in the Westfall Act, section 2679, into
42 U.S.C. § 233(a), would be to effectively imply a
repeal of the FSHCAA and “[r]epeals by implication are
not favored and will not be presumed absent a clear and
manifest legislative intent to repeal. Nothing suggests that
Congress intended §2679(b) to repeal §233(a)'s
more comprehensive immunity”) (internal citation
as to the underlying litigation, the Court is governed by 42
U.S.C. § 233. Section 233 provides the sole and
exclusive means for bringing claims for personal injury
against the United States when, as here, the offending
physician was employed by a deemed employee of the Public
Health Service and was certified acting within the scope of
his employment at the time of the incident. This case is
unlike others in which the Westfall and FSHCAA Acts are both
implicated upon removal.
example, in Alexander v. Mount Sinai Hosp. Medical
Center, while the Attorney General made his
certifications pursuant to section 233, the United States
invoked both section 233 and section 2679 upon removal. 484
F.3d 889, 896 (7th Cir. 2007). In discussing
subject matter jurisdiction, the Seventh Circuit ruled that
under section 233, parties cannot challenge such
certification and under section 2679(d), the certification is
conclusive for purposes of removal. Id. at 897.
Thus, because of the invocation of the Westfall Act in the
notice of removal, the case was properly in federal court.
See Id. at 896, referencing Osborn v.
Haley, 549 U.S. 225 (2007) for its proposition that
subject matter jurisdiction exists indefinitely under section
2679 once proper certifications are made (“In the
instant case, the Attorney General certified pursuant to
section 233 that Sinai was a federally funded health center
and that Dr. Onyema was acting within the scope of his
employment at Sinai at the time of the incidents giving rise
to the complaint. In the notice of removal, the United States
invoked both section 233 and section 2679(d)(2). Given
the invocation of section 2679(d)(2), the very section
the Supreme Court analyzed in Osborn, the question
of subject matter jurisdiction has been answered
[affirmatively] by Osborn.”) (emphasis added).
Here, the Westfall Act is not implicated - only section 233 -
and accordingly, the Court is not bound by the subject matter
jurisdiction analysis prompted by Westfall's provisions.
Rather, the Court is bound by the provision of 42 U.S.C.
§ 233(c) which states that when “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[.]”
result of the above analysis, the Court no longer finds a
federal question to support jurisdiction after its dismissal
of the United States in its May 22, 2018 Order. Thus, the