Second Circuit Weighs Competing Standards for Federal Officer Removal Under 28 U.S.C. § 1442, Finding Appellate Jurisdiction to Review Remand

In Razmzan v. United States, No. 19-227 (2d Cir. Jan. 26, 2021), the panel holds that removal of an action from state court under 28 U.S.C. § 1442, for federal officer or agent removal, was supported by the factual allegations and that the district court’s remand order could be reviewed on appeal under 28 U.S.C. § 1447(d).

Plaintiff Agyin filed a medical malpractice action in state court. The defendant obstetrician, Razmzan, worked part-time for Hudson River Health Care, Inc. (HRHCare), a “deemed” community health center pursuant to the Federally Supported Health Centers Assistance Act (FSHCAA), 42 U.S.C. § 233(g)-(n).

“Razmzan removed the case to the U.S. District Court for the Southern District of New York under 28 U.S.C. § 1442(a)(1) and 42 U.S.C. § 233(l)(2), and he moved for substitution of the United States as the defendant in his place.” The district court denied removal on the ground that “Razmzan acted outside the scope of his employment when he delivered Agyin’s children because he billed and received compensation for the delivery privately.”

While remand orders are typically beyond appellate review, 28 U.S.C. § 1447(d) makes two exceptions: cases removed under § 1442 (federal officers or agents) and § 1443 (civil rights cases). “Razmzan argues that he removed the case under § 1442 and that we therefore have jurisdiction to hear his appeal. Razmzan further argues that the district court erred when it concluded that he acted outside the scope of his employment for the services for which he billed privately.”

The Second Circuit holds that it has appellate jurisdiction. “To invoke [§ 1442], a defendant [such as Razmzan] who is not himself a federal officer must demonstrate that (1) the defendant is a ‘person’ under the statute, (2) the defendant acted ‘under color of federal office,’ and (3) the defendant has a ‘colorable federal defense.’’ Issues (1) and (3) were not in dispute, so only the “color of federal office” prong demands attention.

“Courts generally apply a broad construction—particularly with respect to private parties who claim to be ‘acting under’ a federal officer …. Not only must the words of § 1442 be construed broadly but a court also must ‘credit [the d]efendants’ theory of the case’ when evaluating the relationship between the defendants’ actions and the federal officer.”

Following decisions from several circuits, the panel concludes defendant falls within this exception because he “performed a job that—in the absence of the Federally Supported Health Centers Assistance Act and its provision for deeming health centers and their staffs to be federal employees—the federal government would have had to perform itself: He assisted and helped to carry out the duties of the federal government to provide medical care to the indigent …. Moreover, Razmzan received from the federal government a delegation of the same legal immunity that is extended to employees of the Public Health Service” and “acted pursuant to an employment contract with a federally supported community health center, which itself is subject to detailed requirements and oversight by the federal government.”

Even under a more exacting test applied by other courts—whether the person “acting under” a federal officer was “under the direct and detailed control of a federal agency or officer”—Razmzan still qualified under the exemption. “The federal government retained discretion to refuse to deem Razmzan an employee of the Public Health Service based on his individual failure to ‘comply with the policies and procedures that the [clinic] … implemented’ to reduce malpractice. 42 U.S.C. § 233(i). It also regulated his employment by requiring the clinic to ‘provide the required primary and approved additional health services of the center through staff,’ … ‘utilize staff that are qualified by training and experience to carry out the activities of the center,’ … ‘assess[] [Razmzan’s] clinical competence and/or fitness for duty,’ … and ‘review[] and verif[y]’ Razmzan’s ‘professional credentials, references, claims history, fitness, professional review organization findings, and license status,’ 42 U.S.C. § 233(h)(2).”

The government also raised a couple of procedural objections. First, it argued that Razmzan forfeited removal under § 1442 because he “failed to invoke that statute in his notice of removal.” The panel holds, though, that the same standard for a “short and plain statement” applied equally to complaints under Fed. R. Civ. P. 8(a) and notices of removal under 28 U.S.C. § 1446. Thus, the failure to cite the specific removal section was not decisive. Second, the panel holds that even though Razmzan filed his notice beyond the thirty-day limitations period commanded by 28 U.S.C. § 1446(b), the government failed to raise the objection on a timely basis under 28 U.S.C. § 1447(c) and thus forfeited the objection.

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