Case 19-227, Document 147, 01/26/2021, 3020722, Page1 of 34
`
`19-227-cv
`Razmzan v. United States
`
`In the
`United States Court of Appeals
`FOR THE SECOND CIRCUIT
`
`AUGUST TERM 2019
`No. 19-227
`
`AISHA AGYIN,
`Plaintiff,
`
`v.
`
`SHAHRAM RAZMZAN,
`Defendant-Appellant,
`
`UNITED STATES OF AMERICA,
`Appellee.*
`
`On Appeal from the United States District Court
`for the Southern District of New York
`
`ARGUED: FEBRUARY 4, 2020
`DECIDED: JANUARY 26, 2021
`
`Before:
`
`POOLER, LYNCH, and MENASHI, Circuit Judges.
`
`* The Clerk of Court is directed to amend the caption as set forth above.
`
`CERTIFIED COPY ISSUED ON 01/26/2021
`
`

`

`Case 19-227, Document 147, 01/26/2021, 3020722, Page2 of 34
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`After he was sued for medical malpractice in state court,
`Dr. Shahram Razmzan removed the case to federal court and moved
`to substitute the United States as the defendant in his place. Razmzan
`argued that the alleged malpractice occurred within the scope of his
`employment at a federally deemed community health center,
`entitling him to immunity and the substitution of the United States as
`the defendant under the Federally Supported Health Centers
`Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n).
`
`The U.S. District Court for the Southern District of New York
`(Karas, J.) disagreed in part. It concluded that some of the alleged
`malpractice occurred outside the scope of Razmzan’s employment
`because he had billed for some of his services privately, in
`contravention of the Federal Tort Claims Act Health Center Policy
`Manual (the “FTCA Manual”), and that he was therefore not covered
`by the FSHCAA implementing regulation, 42 C.F.R. § 6.6. The district
`court denied substitution of the United States as to that conduct and
`remanded the case in part to state court. Razmzan appealed.
`
`The government argues that we lack jurisdiction to entertain
`this appeal because Razmzan appealed from an unreviewable
`remand order. Pursuant to 28 U.S.C. § 1447(d), remand orders are
`unreviewable except in cases that were originally removed under 28
`U.S.C. § 1442 or § 1443. Because Razmzan removed this case under
`§ 1442, we are not barred from reviewing the district court’s remand
`order. As to the merits of the appeal, we conclude that Razmzan was
`acting within the scope of his employment under the relevant law—
`New York law—for the acts for which he billed privately. The FTCA
`Manual is not entitled to deference to the extent that it provides
`otherwise. Accordingly, we REVERSE the district court’s order in
`
`2
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`

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`part and REMAND for further proceedings consistent with this
`opinion.
`
`
`
`
`
`MATTHEW S. FREEDUS, Feldesman Tucker Leifer Fidell
`LLP, Washington, DC (Jonay F. Holkins and David A.
`Bender, on the brief), for Defendant-Appellant.
`
`BENJAMIN H. TORRANCE, Assistant United States
`Attorney (Jennifer C. Simon, Assistant United States
`Attorney, on the brief), for Audrey Strauss, United States
`Attorney for the Southern District of New York, New
`York, NY, for Appellee.
`
`
`
`MENASHI, Circuit Judge:
`
`In 2016, Aisha Agyin sued Dr. Shahram Razmzan in state court
`for medical malpractice related to his delivery of her stillborn child.
`At the time of the alleged malpractice, Razmzan was an employee of
`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). Under
`the FSHCAA, federally deemed community health centers and their
`employees are immune from malpractice suits for acts or omissions
`that occur within the scope of their employment. Based on this
`immunity, Razmzan removed the action to the U.S. District Court for
`the Southern District of New York and filed a motion to substitute the
`United States as the defendant.
`
`After the case was removed, the government argued that
`Razmzan was not entitled to immunity and substitution because he
`
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`acted outside the scope of his employment when he billed for his
`services privately, in contravention of the Federal Tort Claims Act
`Health Center Policy Manual (the “FTCA Manual”), removing him
`from coverage under 42 C.F.R. § 6.6. The district court (Karas, J.)
`agreed with the government in part, denied substitution of the United
`States with respect to the conduct for which Razmzan billed privately,
`and remanded part of the case to state court. Razmzan appealed.
`
`Under 28 U.S.C. § 1447(d), we lack jurisdiction to review a
`remand order unless the case was removed under 28 U.S.C. § 1442 or
`§ 1443. The government argues that we lack jurisdiction because
`Razmzan did not remove this case under either section. We disagree.
`Razmzan invoked 28 U.S.C. § 1442(a)(1) in his notice of removal and
`adequately pleaded the required elements, giving us appellate
`jurisdiction over the question of whether removal was proper.
`Because, on reviewing that question, we conclude that removal was
`proper, we have jurisdiction to review the underlying merits of the
`district court’s remand order.
`
`As to the merits, we conclude that Razmzan acted within the
`scope of his employment when performing the services for which he
`billed privately. Under 42 U.S.C. § 233, Razmzan’s scope of
`employment is determined by the “law of the place”—here, the law
`of the State of New York. Under New York law, Razmzan acted
`within the scope of his employment for these services because he
`acted in furtherance of his employment contract with HRHCare and
`to benefit HRHCare. To the extent the FTCA Manual provides
`otherwise, it is not entitled to deference. Because we conclude that
`Razmzan acted within the scope of his employment for the services
`for which he billed privately, we reverse the district court’s order in
`part and remand for further proceedings consistent with this opinion.
`
`4
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`BACKGROUND
`
`Razmzan is an experienced obstetrician and gynecologist who
`served as a part-time employee for HRHCare. During the relevant
`period, HRHCare was a federally deemed community health center,
`receiving federal grant funds under Section 330 of the Public Health
`Service Act, 42 U.S.C. § 254b. In 2010, HRHCare hired Razmzan to
`serve as the medical director of its Park Care site in Yonkers, New
`York. Razmzan’s
`employment
`contract
`stated
`that his
`“responsibilities … include[d] the care of HRHCare’s hospitalized
`and outpatient Ob-Gyn patients in [HRHCare’s] Yonkers, NY offices”
`and that he would “manage HRHCare’s patients when they require
`hospitalization.” Supp. App’x 30. As compensation for his services,
`Razmzan was to receive an annual salary of $165,000 but, in addition,
`was “responsible for”—and entitled to—“all hospital billing and
`collections” for services he provided at hospitals. Id. at 31.
`
`In his notice of removal, Razmzan alleged that his employment
`agreement with HRHCare was designed to “compensate him directly
`through a salary with respect to his outpatient services to HRHCare
`patients and indirectly by allowing him to bill and collect payment
`for the inpatient services he rendered to HRHCare patients … at the
`hospital.” Id. at 9. According to Razmzan, “[t]his arrangement was
`designed to benefit HRHCare” because HRHCare “could not afford
`to pay Dr. Razmzan, given his level and years of experience, on a
`salaried basis for his outpatient and inpatient services,” so “[b]y
`designing an agreement that effectively assigned the revenue
`HRHCare would have otherwise received to Dr. Razmzan for
`inpatient services to its patients, HRHCare benefited by securing a
`highly experienced OBGYN to serve its patients without having to
`commit itself to a fixed salary that would adequately compensate
`
`5
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`Dr. Razmzan.” Id. at 9-10. The district court accepted this account of
`the contract. App’x 66-67.
`
`The FSHCAA authorizes the Secretary of the Department of
`Health and Human Services to deem certain health centers that
`receive federal funds, and their employees, to be employees of the
`Public Health Service (“PHS”) for the purposes of 42 U.S.C. § 233.
`Under § 233(a), PHS employees are entitled to the protections of the
`Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), including
`“absolute immunity … 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). To obtain deemed federal
`status, HRHCare was required to submit an application on behalf of
`itself and its employees each year. And each year during the relevant
`period, HRHCare submitted deeming applications on behalf of itself
`and its employees, including Razmzan. Those deeming applications
`were granted, and “[o]nce the Secretary makes a determination that
`an entity … is deemed to be an employee of the Public Health Service
`for purposes of [§ 233], the determination [is] … final and binding
`upon the Secretary and the Attorney General and other parties to any
`civil action or proceeding.” 42 U.S.C. § 233(g)(1)(F).
`
`When a deemed employee is sued “for damage for personal
`injury, including death, resulting from the performance of medical,
`surgical, dental, or related functions … the Attorney General, within
`15 days after being notified of such filing, shall make an appearance
`… and advise … as to whether the Secretary has determined” that the
`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. § 233(a), (l)(1). If the Attorney General
`does so, the civil action or proceeding “shall be removed without
`
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`bond at any time before trial … 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.” Id. § 233(c). “If the Attorney General fails to appear in
`State court within the time period prescribed … upon petition of” the
`employee, “the civil action or proceeding shall be removed to the
`appropriate United States district court.” Id. § 233(l)(2).
`
`Agyin was a patient of HRHCare who received prenatal care
`from HRHCare throughout her pregnancy with twins. When Agyin
`was thirty-seven weeks pregnant, she saw Razmzan for a prenatal
`visit at an HRHCare clinic. Concerned about the risks of Agyin’s
`pregnancy, Razmzan recommended that Agyin deliver the next day
`and scheduled a delivery at St. John’s Riverside Hospital. Razmzan
`performed the delivery of Agyin’s twins at the hospital, and one of
`the twins was stillborn. After Agyin was discharged from the
`hospital, Razmzan met with her at least two more times at the
`HRHCare clinic. In accordance with his employment contract,
`Razmzan billed and received payment privately for the delivery of
`Agyin’s twins. He did not bill privately for the outpatient services he
`provided to Agyin at the HRHCare clinic.
`
`Agyin sued Razmzan for medical malpractice in New York
`state court. 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 heard argument on
`Razmzan’s motion and concluded 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. In its
`ruling, the district court deferred to the FTCA Manual, a Department
`
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`of Health and Human Services (HHS) policy document which
`provides that “FTCA coverage will apply to the provider … as long
`as … [t]he funds received by the provider … are transferred directly
`to the health center.”1 Razmzan moved for reconsideration, and after
`hearing argument, the district court denied his motion. Razmzan then
`appealed.
`
`DISCUSSION
`
`The government argues that we lack jurisdiction to hear this
`appeal under 28 U.S.C. § 1447(d) because Razmzan did not remove
`the case under 28 U.S.C. § 1442 or § 1443. 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. We review
`an appeal from an order of remand de novo. See Shapiro v. Logistec USA,
`Inc., 412 F.3d 307, 310 (2d Cir. 2005). We also review scope-of-
`employment determinations de novo. McHugh v. Univ. of Vt., 966 F.2d
`67, 72 (2d Cir. 1992).
`
`I
`
`We begin with the question of our jurisdiction to hear this
`appeal. The exercise of appellate jurisdiction here is proper because
`Razmzan’s notice of removal asserted a colorable claim for removal
`under § 1442. That alone is sufficient for us to exercise appellate
`jurisdiction over the question of § 1442 removal, even if we were
`
`1 Health Res. & Servs. Admin., U.S. Dep’t of Health & Hum. Servs., Federal
`Tort Claims Act Health Center Policy Manual at 13 (July 21, 2014), available at
`https://bphc.hrsa.gov/sites/default/files/bphc/ftca/pdf/ftcahcpolicymanualpdf.pdf
`(last visited Jan. 19, 2021).
`
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`ultimately to conclude that the removal itself was improper. See, e.g.,
`Veneruso v. Mount Vernon Neighborhood Health Ctr., 586 F. App’x 604,
`606 (2d Cir. 2014) (noting that only a “bare or frivolous invocation” of
`§ 1442 “would require us to dismiss the appeal for lack of appellate
`jurisdiction”).
`
`Furthermore, we conclude that removal under § 1442 was
`proper here because Razmzan was acting under a federal officer when
`he treated Agyin at the hospital and the other requirements of § 1442
`are met. We reject the government’s contentions that Razmzan’s
`removal was procedurally defective because it was untimely or
`inadequately pleaded. We address each of these issues in turn.
`
`A
`
`Section 1442 authorizes “[t]he United States or any agency
`thereof or any officer (or any person acting under that officer) of the
`United States or of any agency thereof” to remove actions “for or
`relating to any act under color of such office.”2 Under § 1442, “federal
`officer removal must be predicated on the allegation of a colorable
`federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989).
`
`As this court has explained, “To invoke the statute, a defendant
`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
`
`
`2 See In re Commonwealth’s Motion to Appoint Counsel Against or Directed to
`Def. Ass’n of Phila., 790 F.3d 457, 467 (3d Cir. 2015) (noting that Congress’s
`addition of “the ‘or relating to’ language [was] ‘intended to broaden the
`universe of acts that enable Federal officers to remove to Federal court’”)
`(quoting H.R. Rep. No. 112-17, pt. 1, at 6 (2011), as reprinted in 2011
`U.S.C.C.A.N. 420, 425).
`
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`federal defense.’” Cuomo v. Crane Co., 771 F.3d 113, 115 (2d Cir. 2014)
`(quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir. 2008));
`see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,
`488 F.3d 112, 124 (2d Cir. 2007).
`
`Razmzan is a “person,” see 1 U.S.C. § 1, and he has raised a
`colorable federal defense. In the district court, Razmzan prevailed in
`raising a federal defense with respect to his conduct at the clinic.
`App’x 71. That defense alone suffices for removal under § 1442
`because he raised it at the time of filing his notice of removal. See
`Pantalone v. Aurora Pump Co., 576 F. Supp. 2d 325, 329 (D. Conn. 2008)
`(“The propriety of removal under the statute should be considered at
`the time of removal.”). Neither the district court nor the government
`now disputes that Razmzan raised a colorable federal defense as to
`his conduct at the clinic at the time of removal. The only open
`question therefore is whether Razmzan “acted ‘under color of federal
`office’”—that is, whether he was “acting under” a federal officer and
`acted “under color of such office”—when he provided medical
`services at the clinic and/or the hospital.
`
`1
`
`While the general removal statute must be strictly construed,
`see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941), both
`§ 1442 and especially its “acting under” provision must be read
`broadly, see Isaacson, 517 F.3d at 136 (“The words ‘acting under’ are to
`be interpreted broadly, and the statute as a whole must be liberally
`construed.”); see also Crane Co., 771 F.3d at 115 (“The Supreme Court
`has cautioned that the scope of the federal officer removal statute ‘is
`not narrow or limited.’”) (quoting Willingham v. Morgan, 395 U.S. 402,
`406 (1969)). Courts generally apply a broad construction—
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`particularly with respect to private parties who claim to be “acting
`under” a federal officer. See Gurda Farms, Inc. v. Monroe Cty. Legal
`Assistance Corp., 358 F. Supp. 841, 843 (S.D.N.Y. 1973) (“Even a cursory
`survey of the application of the statute reveals it has been construed
`broadly, and its ‘persons acting under’ provision particularly so.”).
`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. Isaacson, 517 F.3d at 137 (citing Jefferson Cnty. v. Acker,
`527 U.S. 423, 432 (1999)).
`
`Congress used the words “acting under” to describe “the
`triggering relationship between a private entity and a federal officer.”
`Watson v. Philip Morris Cos., 551 U.S. 142, 149 (2007). That relationship
`involves “an effort to assist, or to help carry out, the duties or tasks of
`the federal superior.” Id. at 152. The Supreme Court has said, for
`example, that a private company acting pursuant to a contract with
`the federal government has this relationship. Indeed, “courts have
`unhesitatingly treated the ‘acting under’ requirement as satisfied
`where a contractor seeks to remove a case involving injuries arising
`from equipment that it manufactured for the government.” Sawyer v.
`Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017) (emphasis
`omitted).
`
`When “Dow Chemical fulfilled the terms of a contractual
`agreement by providing the Government with a product that it used
`to help conduct a war,” Dow Chemical acted under the United States.
`Watson, 551 U.S. at 153-54. Dow Chemical was “acting under” a
`federal officer because it “performed a job that, in the absence of a
`contract with a private firm, the Government itself would have had
`to perform.” Id. at 154; see also Papp v. Fore-Kast Sales Co., 842 F.3d 805,
`
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`812 (3d Cir. 2016) (“The classic case of such assistance as it relates to
`government contractors is when the private contractor acted under a
`federal officer or agency because the contractors helped the
`Government to produce an item that it needed.”) (internal quotation
`marks and alterations omitted); Ruppel v. CBS Corp., 701 F.3d 1176,
`1181 (7th Cir. 2012) (“‘Acting under’ covers situations … where the
`federal government uses a private corporation to achieve an end it
`would have otherwise used its own agents to complete.”). In reaching
`its conclusion in Watson, the Supreme Court considered whether there
`had been a “delegation of legal authority” from the federal
`government to the private party or a “contract, … payment, …
`employer/employee relationship, or … principal/agent arrangement”
`between the federal government and the private party. 551 U.S. at 156.
`
`A district court in our circuit previously concluded that
`“attorneys in an [Office of Economic Opportunity] funded legal
`services program” were “‘persons acting under’ a federal officer
`within the meaning of § 1442(a)(1).” Gurda, 358 F. Supp. at 843. The
`court identified prior cases in which courts had “upheld the removal
`of an action … against a private insurance company which had
`contracted with the federal government to administer benefit
`provisions of Medicare” and had “sustained the removal of a
`garnishment action against a doctor who treated patients under
`Medicare” because “the defendant had been acting under the
`direction of the Secretary of Health, Education, and Welfare.” Id. at
`844 (citing Kuenstler v. Occidental Life Ins. Co., 292 F. Supp. 532 (C.D.
`Cal. 1968), and Allen v. Allen, 291 F. Supp. 312 (S.D. Iowa 1968)). The
`court endorsed the view that “sound policy requires the availability
`of a federal forum for adjudication of the legal status of persons who
`colorably have been acting under federal direction” and found it
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`instructive that the private party had “performed work contemplated
`by a federal statute.” Gurda, 358 F. Supp. at 844 (alteration omitted).
`
`In a recent case, the Third Circuit concluded that the Federal
`Community Defender, “a non-profit entity created through the
`Criminal Justice Act that is delegated the authority to provide
`representation under the CJA,” acted under a federal officer—the
`Administrative Office of U.S. Courts. In re Commonwealth’s Motion, 790
`F.3d at 469. The court explained that the Federal Community
`Defender was statutorily required to have “stated purposes [that]
`include implementation of the aims and purposes of the CJA” and to
`“adopt bylaws consistent with representation under the CJA and a
`model code of conduct similar to those governing Federal Public
`Defender Organizations.” Id. Through its relationship with the
`federal government, “the Federal Community Defender ‘assists’ and
`helps the AO to ‘carry out the duties or tasks of a federal superior,’
`which is to implement the CJA and [18 U.S.C.] § 3599 through the
`provision of counsel to federal defendants and indigent federal
`habeas corpus petitioners.” Id. (alteration omitted).
`
`Even more recently, the Eleventh Circuit concluded that a non-
`profit utility cooperative acted under a federal officer because such
`cooperatives “exist to provide a public function conceived of and
`directed by the federal government,” namely “bringing electricity to
`sparsely populated rural areas that would not otherwise receive
`electricity.” Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1143 (11th
`Cir. 2017).
`
`Razmzan falls neatly into these precedents. 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
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`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. See
`H.R. Rep. No. 104-398, at 5 (1995), as reprinted in 1995 U.S.C.C.A.N.
`767, 769 (“The Federal government makes primary health care
`services available to medically underserved populations …. [T]he
`Department of Health and Human Services (HHS) makes grants to
`public or private nonprofit entities to provide primary health care
`services to specified underserved populations, regardless of their
`ability to pay.”).3 “Cases in which the Supreme Court has approved
`removal involve defendants working hand-in-hand with the federal
`government to achieve a task that furthers an end of the federal
`government.” Ruppel, 701 F.3d at 1181. This is such a case.4
`
`Moreover, Razmzan received from the federal government a
`delegation of the same legal immunity that is extended to employees
`of the Public Health Service, see Notice of Deeming Action, Supp.
`App’x 21-22, and he acted pursuant to an employment contract with
`
`
`3 See also H.R. Rep. No. 104-398, at 6 (“National Health Service Corps
`physicians … provide much of the staffing for [federally supported
`community] health centers.”); H.R. Rep. No. 102-823, at 5 (1992), as reprinted
`in 1992 U.S.C.C.A.N. 2627, 2627 (“The Community and Migrant Health
`Centers are the largest users of National Health Service Corps (NHSC)
`physicians, and have historically depended on the program for more than
`one-half of their physical staff. Sixty-five percent of NHSC physicians are
`placed at the centers.”).
`4 See also Health Res. & Servs. Admin., Agency Overview (last updated
`Jan. 2021), https://www.hrsa.gov/sites/default/files/hrsa/about/hrsa-agency-
`overview.pdf (“HRSA programs provide health care to people who are
`geographically isolated and those who are economically or medically
`vulnerable.”).
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`a federally supported community health center, which itself is subject
`to detailed requirements and oversight by the federal government.5
`
`2
`
`Some courts also inquire into whether the person “acting
`under” a federal officer was “under the direct and detailed control of
`a federal agency or officer.” N.G. v. Downey Reg’l Med. Ctr., 140
`F. Supp. 3d 1036, 1041 (C.D. Cal. 2015).6 Even assuming that inquiry
`is required, Razmzan and the clinic that employed him would meet
`that test. HRHCare was obliged to submit a deeming application
`under 42 U.S.C. § 233(g)(1)(D) that certified its:
`
`
`5 See H.R. Rep. No. 102-823, at 5 (“Federal requirements associated with the
`grants are administratively burdensome and address all areas of
`operation.”).
`6 See also Watson, 551 U.S. at 153 (“[L]ower courts have held that
`Government contractors fall within the terms of the federal officer removal
`statute … [where the relationship] is an unusually close one involving
`detailed regulation, monitoring, or supervision.”); Ellis v. Pneumo Abex
`Corp., 798 F. Supp. 2d 985, 989 (C.D. Ill. 2011) (“The moving party must also
`show that the claim ‘depends on the defendant’s following the directions
`issued by that federal officer.’”); Freiberg v. Swinerton & Walberg Prop. Servs.,
`245 F. Supp. 2d 1144, 1152 (D. Colo. 2002) (“The official must have direct
`and detailed control over the defendant.”); Pack v. AC & S, Inc., 838 F. Supp.
`1099, 1103 (D. Md. 1993) (“‘Direct control’ is established by showing strong
`government intervention and the possibility that a defendant will be sued
`in state court as a result of the federal control.”). But see Baker v. Atl. Richfield
`Co., 962 F.3d 937, 944-45 (7th Cir. 2020) (“It is sufficient for the ‘acting under’
`inquiry that the allegations are directed at the relationship between the
`Companies and the federal government.”); Isaacson, 517 F.3d at 137-38 (“To
`show causation, Defendants must only establish that the act that is the
`subject of Plaintiffs’ attack … occurred while Defendants were performing
`their official duties.”).
`
`15
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`

`Case 19-227, Document 147, 01/26/2021, 3020722, Page16 of 34
`
`and
`appropriate policies
`(1) implementation of
`procedures to reduce the risk of malpractice and
`litigation; (2) review and verification of professional
`credentials and privileges, references, claims history,
`fitness, professional review organization findings, and
`licensure status of health professionals; (3) cooperation
`with the Department of Justice (DOJ) in the defense of
`claims and actions to prevent claims in the future; and
`(4) cooperation with DOJ in providing information
`related to previous malpractice claims history.
`Notice of Deeming Action, Supp. App’x 21-22. “In addition to the
`relevant statutory and regulatory requirements, every deemed health
`center is expected to follow HRSA’s FTCA-related policies and
`procedures,
`which
`may
`be
`found
`online
`at
`http://www.bphc.hrsa.gov.” Id. at 22. Those policies include a 94-page
`Health Center Program Compliance Manual, which
`imposes
`requirements for clinic operations including “Clinical Staffing,”
`“Accessible Locations and Hours of Operation,” “Continuity of Care
`and Hospital Admitting,” and even “Board Composition.” 7 The
`policies also include a 151-page Health Center Program Site Visit
`Protocol that provides for “Operational Site Visits” to occur “at least
`once per project/designation period” in order to verify “compliance
`with the Health Center Program.”8
`
`
`7 Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs.,
`Health Center Program Compliance Manual (“Compliance Manual”) (last
`updated Aug. 20, 2018), available at https://bphc.hrsa.gov/sites/default/files/
`bphc/programrequirements/pdf/hc-compliance-manual.pdf.
`8 Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs.,
`Health Center Program Site Visit Protocol at 1-2 (last updated Feb. 27, 2020),
`available at https://bphc.hrsa.gov/sites/default/files/bphc/programrequirements/
`pdf/site-visit-protocol.pdf.
`
`16
`
`

`

`Case 19-227, Document 147, 01/26/2021, 3020722, Page17 of 34
`
`Although Razmzan “did not have a contract directly with the
`United States,” and instead “was providing services … pursuant to a
`subcontract,” he was still acting under a federal officer. Badilla v. Nat’l
`Air Cargo, Inc., No. 12-CV-1066, 2014 WL 6390324, at *2, *4-7
`(W.D.N.Y. Nov. 17, 2014). 9 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,” Compliance
`Manual at 28, “utilize staff that are qualified by training and
`experience to carry out the activities of the center,” id., “assess[]
`[Razmzan’s] clinical competence and/or fitness for duty,” id. at 29,
`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).
`
`In sum, Razmzan was “acting under” a federal officer because
`he performed work that, absent the program in which he participated,
`the government would have had to perform itself; his work assisted
`the mission of the federal agency that oversaw his work; and he was
`subject to federal oversight and control. The argument for his ability
`to remove his case is stronger than that of, for example, a private
`company acting under a contract with the government. Unlike a
`
`
`9 Cf. Restatement (Third) of Agency § 3.15 cmt. b (2006) (“When an agent is
`itself a corporation or other legal person, its officers, employees, partners,
`or members who are designated to work on the principal’s account are
`subagents.”); id. § 3.15 (“The relationship[] … between the subagent and the
`appointing agent’s principal [is a] relationship[] of agency.”).
`
`17
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`

`Case 19-227, Document 147, 01/26/2021, 3020722, Page18 of 34
`
`contractor, the government actually treated Razmzan as the
`equivalent of a government employee for the purposes of immunity
`under § 233. Less has been held to suffice in other cases.10
`
`In fact, contrary to its position in this case, the government itself
`has invoked § 1442 on behalf of deemed employees such as Razmzan.
`See, e.g., Oviedo v. Hallbauer, 655 F.3d 419, 422 (5th Cir. 2011); Nichols
`v. Sabzwari, No. 4:17-CV-01621, 2017 WL 6389634, at *1 (D.S.C. Nov.
`13, 2017); Gabriel v. Alger, No. 14-CV-03022, 2015 WL 1042507, at *1
`(D. Colo. Mar. 5, 2015); Dominguez ex rel. Dominguez v. Verna, No. 10-
`CV-4296, 2010 WL 4942225, at *3 (S.D.N.Y. Dec. 3, 2010). It did not err
`in doing so.
`
`The contrast between this case and a prior case, in which a
`panel decided by summary order that a clinic was not “acting under”
`a federal officer, illustrates why appellate review is proper. In
`Veneruso, the court concluded that Mount Vernon Neighborhood
`Health Center, “a federal grant recipient under the Public Health
`Service Act,” was not acting under a federal officer when it received
`distributions from a joint venture partner in violation of New York
`law. 586 F. App’x at 605-08. The court explained that “Mount Vernon
`does not a