Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 1 of 10 Page ID #164
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`Case No. 3:20-cv-01302-GCS
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`A.W., a Minor, by and through her
`mother and next friend, HEATHER
`TURNER,
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`Plaintiff,
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`vs.
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`GRANITE CITY ILLINOIS
`HOSPITAL COMPANY, LLC,
`SOUTHERN ILLINOIS
`HEALTHCARE FOUNDATION, INC.,
`and MELVIN MERRITT,
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`Defendants.
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`MEMORANDUM & ORDER
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`SISON, Magistrate Judge:
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`INTRODUCTION AND BACKGROUND
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`On September 2, 2020, minor Plaintiff A.W. filed a complaint against Defendants
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`Dr. Melvin Merritt and Southern Illinois Healthcare Foundation, Inc. (“SIHF”), by and
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`through her mother and Next Friend, Heather Turner. (Doc. 1, Exh. A). In her complaint,
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`Plaintiff alleges medical malpractice and negligence against both defendants.
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`Specifically, Plaintiff states that, as an employee and agent of SIHF, Defendant Merritt
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`negligently employed a vacuum procedure to induce A.W.’s labor even though A.W.’s
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`large size made such a procedure dangerous. See (Doc. 1, Exh. A). As a result of the
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`dangerous procedure, A.W. was deprived of oxygen and suffered hypoxia and brain
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`injuries at birth. (Doc. 1, Exh. A, Counts I & II). Plaintiff seeks monetary damages from
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 2 of 10 Page ID #165
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`both defendants for A.W.’s extensive medical care and treatment, physical and mental
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`pain and suffering, and the deprivation of A.W.’s normal enjoyments of life. (Doc. 1, Exh.
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`A, Count III).
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`Plaintiff initially brought this claim in the Third Judicial Circuit of Madison
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`County, Illinois. (Doc. 3). However, on or before January 1, 2015, the Associate
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`Administrator, Bureau of Primary Health Care, Health Resources and Services
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`Administration, Department of Health and Human Services deemed Defendant SIHF a
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`Public Health Service employee under 42 U.S.C. § 233(g). (Doc. 1, Exh. B). Since that date
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`and pursuant to the Federally Supported Health Centers Assistance Act (“FSHCAA”),
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`SIHF was covered by Federal Tort Claims Act malpractice coverage; as an employee or
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`contractor of SIHF, Defendant Merritt was also covered. (Doc. 1, Exh. B).1 On December
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`7, 2020, Defendants removed the case to this Court pursuant to 42 U.S.C. § 233(c). (Doc.
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`1). At the same time, and on behalf of the defendants, the United States of America moved
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`to dismiss the defendants with prejudice and to substitute the United States as a
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`defendant. (Doc. 3).
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`On January 7, 2021, Plaintiff filed a motion to remand the case back to the Third
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`Judicial Circuit of Madison County, Illinois, alleging that Defendants’ motion to remove
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`lacked the evidence required by the statutory language of 42 U.S.C. § 233(g)(2)(5)(B).
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`(Doc. 16). Shortly thereafter, on January 15, 2021, Plaintiff filed a motion for an extension
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`of time to respond to Defendants’ motion to substitute and for limited discovery, arguing
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`Plaintiff rejects this contention of fact, alleging that Defendant Merritt may not meet the criteria
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`required by § 233 to qualify for coverage and substitution. (Doc. 23, p. 2). For the reasons outlined below,
`the Court finds that Defendant Merritt is qualified for coverage under § 233.
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 3 of 10 Page ID #166
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`that limited discovery was necessary to determine whether Defendant Merritt was a
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`contractor or employee of SIHF, though Plaintiff conceded that SIHF itself was covered
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`by § 233. (Doc. 20).2 All three motions before the Court involve the same argument
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`regarding Defendant Merritt’s status as an employee or a contractor. As such, the Court
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`proceeds to consider Defendants’ motion to substitute (Doc. 3), Plaintiff’s motion to
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`remand (Doc. 16), and Plaintiff’s motion for limited discovery. (Doc. 20).
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`For the following reasons, Defendants’ motion to substitute is GRANTED.
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`Plaintiff’s motion for limited discovery and Plaintiff’s motion to remand are DENIED.
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`ANALYSIS
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`When a Public Health Service’s employee or officer’s performance of medical
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`functions causes damages, including personal injury or death, the only available remedy
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`is a Federal Torts Claims Act lawsuit against the United States. See 42 U.S.C. § 233(a).
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`However, the Secretary of Health and Human Services, or the Secretary’s designee (the
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`“Secretary”), may provide liability insurance for any officer or employee of a Public
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`Health Service acting within the scope of their employment. See 42 U.S.C. § 233(f). The
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`Secretary may deem an entity a Public Health Service and may deem an individual to be
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`a covered employee of that Public Health Service if certain conditions are met. See 42
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`U.S.C. § 233(g).
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`Although the United States asserts that it provided Plaintiff with limited discovery pertaining to
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`Defendant Merritt’s employment status with SIHF shortly after Plaintiff’s motion for discovery (Doc. 21,
`3), Plaintiff still alleges that further discovery is necessary to determine whether Defendant Merritt is a
`contractor for, rather than an employee of, SIHF. (Doc. 24, p. 2).
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 4 of 10 Page ID #167
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`If a plaintiff files suit against a covered employee or Public Health Service in state
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`court, upon certification by the Attorney General that the defendants acted within the
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`scope of their employment during the incident in question, the proceeding must be
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`removed to the United States district court covering the area where the suit was initially
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`pending. See 42 U.S.C. § 233(c). That proceeding is also “deemed a tort action brought
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`against the United States under the provisions of Title 28 and all references thereto.” Id.
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`After removal, the court must dismiss the certified parties from the case and substitute
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`the United States; the case then proceeds under the Federal Tort Claims Act (commonly
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`referred to as the “Westfall Act”). See 28 U.S.C. § 2679(d)(2); Alexander v. Mount Sinai Hosp.
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`Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). Such certification also extends to employees
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`of the certified federally-funded public health center. See Helms v. Atrium Health Care, et
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`al., No. 10-547-GPM, 2010 WL 3937606, at *2 (S.D. Ill. Oct. 5, 2010).
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`Though similar, the FSHCAA is in addition to and distinct from the Westfall Act,
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`which provides a limited waiver of the sovereign immunity of the United States in cases
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`concerning federal employees. Whereas the FSHCAA provides specific protections for
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`covered public health service employees, the Westfall Act provides broader coverage for
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`covered “government employees.” 28 U.S.C. § 2679(b)(1). Just as in the FSHCAA, the
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`Attorney General may deem a defendant employee of a federal agency a “government
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`employee;” that defendant would then be substituted with the United States in pending
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`litigation. See generally, 28 U.S.C. § 2679.
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`Plaintiff correctly points out that the Westfall Act explicitly excludes contractors
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`from coverage. (Doc. 23, p. 2, citing 28 U.S.C. § 2671). However, unlike the Westfall Act,
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 5 of 10 Page ID #168
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`the FSHCAA specifically includes contractors as individuals that qualify for potential
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`protection. For instance, Section 233 provides that the “deeming of any entity or officer,
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`governing board member, employee, or contractor of the entity to be an employee of the
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`Public Health Service for purposes of this section shall apply with respect to services
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`provided . . .” 42 U.S.C. § 233(g)(1)(B) (emphasis added). Subsection (D) of that same
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`section further states that the government “may not . . . deem an entity or an officer,
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`governing board member, employee, or contractor of the entity” for coverage unless that
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`party first appropriately applies for such coverage. 42 U.S.C. § 233(g)(1)(D) (emphasis
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`added). Finally, subsection (E) mandates that the government’s determination that “an
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`entity or an officer, governing board member, employee, or contractor of the entity is
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`deemed to be an employee of the Public Health Service for purposes of this section shall
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`apply for the period specified by the Secretary under subparagraph (A).” 42 U.S.C. §
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`233(g)(1)(E) (emphasis added).
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`Defendants removed this case from the Third Judicial Circuit to this Court
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`pursuant to certification under 42 U.S.C. § 233(c). (Doc. 1). Furthermore, the Chief of the
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`Civil Division for the United States Attorney’s Office for the Southern District of Illinois3
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`has certified that SIHF and Defendant Merritt are “deemed” to be federal employees
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`acting within the scope of their employment at the time of the incident giving rise to
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`Plaintiff’s complaint. See (Doc. 1, Exh. C). Accordingly, the only remedy available to
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`A United States Attorney is permitted to issue such certification in lieu of the Attorney General, or
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`to delegate that authority. See 28 C.F.R. § 15.4(a). Here, a United States Attorney delegated that authority
`to the Chief of the Civil Division for the United States Attorney’s Office for the Southern District of Illinois.
`(Doc. 3, p. 2).
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 6 of 10 Page ID #169
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`Plaintiff is a Federal Torts Claims Act lawsuit against the United States pursuant to 42
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`U.S.C. § 233(a) and (c).
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`Plaintiff argues that limited discovery is necessary to determine Defendant
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`Merritt’s employment status and that this discovery could support remanding the case
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`and denying Defendants’ motion to substitute. Specifically, Plaintiff asserts that it is
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`possible that Defendant Merritt works less than the 32.5 hours per week at SIHF required
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`for contractors to receive coverage under the FSHCAA. (Doc. 16, p. 2); see also 42 U.S.C.
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`§ 233(g)(5)(A)). Plaintiff additionally contends that further discovery could reveal
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`whether Defendant Merritt should correctly be excluded from coverage under the
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`FSHCAA. (Doc. 24, p. 3). Section 233(i), for instance, outlines the factors the Attorney
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`General considers in disqualifying someone from protection or coverage after a deeming
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`determination has been made. 42 U.S.C. § 233(i). However, because the Court cannot
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`review the Secretary’s determination, both arguments fail.
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`Once the Secretary deems an individual to be an employee of a Public Health
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`Service, that determination is binding on the Secretary, the Attorney General, and all
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`other parties to the civil action, including the Court. See 42 U.S.C. § 233(g)(1)(F); see also
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`Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007). Such a
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`determination also includes contractors. For instance, in Alexander, the Secretary deemed
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`the defendant doctor a contractor of a Public Health Service under the FSHCAA. Id. at
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`890. However, the plaintiff challenged the district court’s subject matter jurisdiction on
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`the grounds the United States was improperly substituted for the defendant. Specifically,
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`the plaintiff argued that the defendant did not personally contract with a federally-
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 7 of 10 Page ID #170
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`funded health center, as required by the FSHCAA. Id. During the litigation, the
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`government admitted that the defendant was mistakenly deemed a contractor of a Public
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`Health Service without meeting the FSHCAA’s qualifications. Id. at 892-893.
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`Nevertheless, the Seventh Circuit Court of Appeals affirmed the district court’s finding
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`of subject matter jurisdiction. Id. at 895. The Court noted that the “final and binding
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`nature of the government’s determination would be meaningless if the losing party could
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`challenge the government’s interpretation of each word in § 233(g)(1)(F).” Moreover, the
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`Court held that even if the United States were no longer a defendant in the case, the
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`district court would properly retain subject matter jurisdiction. Id. (analogizing remand
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`after the Attorney General certification under the FSHCAA to Osborn v. Haley, 127 S. Ct.
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`881, 895 (2007), in which the Supreme Court held that the Westfall Act ensured a case in
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`which the Attorney General certified a defendant as acting within the scope of their
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`employment would never be remanded to the state system). Accordingly, even if Plaintiff
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`is correct in her contention that Defendant Merritt does not work enough hours to qualify
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`as a contractor under the FSHCAA, or that Defendant Merritt is excluded from
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`consideration under § 233(i), the Court cannot invalidate the Secretary’s decision to deem
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`Defendant Merritt a contractor of SIHF.4
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`The Court further notes that even if Defendant Merritt works less than 32.5 hours per week with
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`SIHF, the FSHCAA provides exceptions to this requirement for those working in obstetrics and gynecology.
`See 42 U.S.C. § 233(g)(5)(B). Defendant Merritt is an OBGYN, qualifying for this exception. Furthermore,
`the United States contends that it provided Plaintiff with documentation showing that Defendant Merritt
`qualifies as a contractor under the FSHCAA. (Doc. 21, p. 4). Plaintiff does not respond to this contention
`despite being directed by the Court to address the discovery it received after filing her request for limited
`discovery. (Doc. 22).
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 8 of 10 Page ID #171
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`Plaintiff urges the Court to consider Alexander as indicative of a circuit-split
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`regarding the FSHCAA. Plaintiff alleges that the Fifth Circuit applies the “strict control
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`test” in examining whether an individual requesting coverage through a qualified Public
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`Health Service is an employee or a contractor. (Doc. 24, p. 3). Specifically, Plaintiff points
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`to Creel v. United States as outlining the appropriate test for courts to determine whether
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`an individual is a contractor or employee for purposes of litigation under the Federal Tort
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`Claims Act. 598 F.3d 210 (5th Cir. 2010). However, this case considered whether an
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`individual qualified for coverage under the Westfall Act, rather than under the FSHCAA.
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`Id. at 212, n.1 (emphasis added). Unlike the FSHCAA, the Westfall Act excludes
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`contractors from coverage. Therefore, the motion to substitute considered by the Fifth
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`Circuit analyzed whether an individual was a contractor or employee of a covered entity
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`under the Westfall Act. This test is inapplicable here because Defendants filed their
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`motion to substitute under the FSHCAA.5
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`Plaintiff also points to Ezekiel v. Michel as an example of a contrary Seventh Circuit
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`case in which the Seventh Circuit Court of Appeals held that the plaintiff bears the burden
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`of contradicting the Attorney General’s certification that a physician was acting within
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`the scope of their employment. 66 F.3d 894, 899 (7th Cir. 1995)(citing Hamrick v. Franklin,
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`931 F.2d 1209 (7th Cir. 1991) cert. denied 502 U.S. 869 (1991)), overruled by Osborn v. Haley,
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`The same analysis applies with equal force to Plaintiff’s citations to United States v. Orleans, 425 U.S.
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`807, 813-814 (1976); Woodruff v. United States, 389 F.3d 1117, 1128 (10th Cir. 2004); Robb v. United States, 80
`F.3d 884, 888 (4th Cir. 1995); U.S. Tobacco Cooperative, Inc. v. Big South Wholehouse of Virginia, LLC, 899 F.3d
`236, 248 (4th Cir. 2018); and Bryant v. United States, No. CIV 98–1495 PCT RCB, 2000 WL 33201357 (D. Ariz.
`Jan. 11, 2000), each of which cite to the Westfall Act.
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 9 of 10 Page ID #172
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`127 S. Ct. 881 (2007). However, in this case, the Court again examined a motion to dismiss
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`the defendants under the Westfall Act. Id. (emphasis added).
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`Moreover, even if this case were applicable to the FSHCAA, the Supreme Court
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`overruled this standard in Osborn v. Haley. In that case, the Court held that the Attorney
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`General’s certification conclusively establishes that a physician was acting within the
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`scope of employment at the time of the events underlying the litigation. See Osborn, 127
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`S. Ct. at 894 (citing 28 U.S.C. § 2679 (d)(2)). Through its designee, the Attorney General
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`has certified that Defendant Merritt acted within the scope of his employment while
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`treating Plaintiff; that certification is conclusive of the issue. (Doc. 1, Exh. C). The parties
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`do not require further discovery into Defendant Merritt’s status as an employer or
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`contractor under the FSHCAA because such discovery would be futile. The Court finds
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`that the Attorney General’s certification conclusively establishes both that the United
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`States should be substituted for Defendant Merritt and that this case cannot be remanded
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`to the Third Judicial Circuit of Madison County, Illinois.
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`CONCLUSION
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`For the foregoing reasons, Defendants’ motion to substitute (Doc. 3) is
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`GRANTED. The Court directs the Clerk of the Court to dismiss Defendants Merritt and
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`Southern Illinois Healthcare Foundation, Inc., with prejudice and add the United States
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`as a defendant to this case. Plaintiff’s motion to remand (Doc. 16) and motion for an
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`extension of time to conduct limited discovery (Doc. 20) are DENIED.
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`Case 3:20-cv-01302-GCS Document 29 Filed 02/18/21 Page 10 of 10 Page ID #173
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`IT IS SO ORDERED.
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`Dated: February 17, 2021.
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`Digitally signed
`by Judge Sison 2
`Date: 2021.02.17
`16:24:01 -06'00'
`______________________________
`GILBERT C. SISON
`United States Magistrate Judge
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