Negative § 233 Deeming Advice Bars FSHCAA Removal, and § 1442’s 30-Day Clock Runs from the Petition When Federal-Officer Grounds Are Apparent

Introduction

Gonzalez v. El Centro Del Barrio is a Fifth Circuit decision arising from a putative class action filed in Texas state court after a 2024 cyberattack allegedly exposed patients’ private information maintained by a federally funded community health center, El Centro Del Barrio (doing business as CentroMed).

The appeal did not address the merits of the data-breach claims. Instead, it focused narrowly on forum: whether CentroMed could remove the case to federal court under (1) the Federally Supported Health Centers Assistance Act removal mechanism in 42 U.S.C. § 233, and/or (2) the federal officer removal statute, 28 U.S.C. § 1442.

The district court remanded to state court. The Fifth Circuit affirmed, holding that removal was improper under both statutes.

Summary of the Opinion

  • § 233 removal rejected: CentroMed could not remove under 42 U.S.C. § 233(l)(2) because the Attorney General timely appeared in state court within the 15-day window and advised that CentroMed was not deemed a Public Health Service (PHS) employee for purposes of the acts or omissions alleged (a data breach), meaning the case was not subject to § 233.
  • § 1442 removal rejected as untimely: CentroMed’s federal officer removal was subject to the ordinary 30-day deadline in 28 U.S.C. § 1446(b)(1) because the petition itself revealed the necessary facts to assert § 1442. CentroMed removed 37 days after service—too late.
  • Appellate review permitted: Although remand orders are generally unreviewable, the court concluded it could review the § 233 issue because the remand effectively denied absolute immunity and could also review because § 1442 removals are reviewable under 28 U.S.C. § 1447(d).

Analysis

Precedents Cited

1) § 233 immunity and its procedural triggers

The opinion anchored § 233’s function—substitution of the United States and FTCA exclusivity—on Hui v. Castaneda, which the Fifth Circuit cited for the proposition that § 233(a) provides “absolute immunity” for covered PHS medical or related functions within the scope of employment. The court also relied on Hui v. Castaneda for appellate jurisdiction: orders effectively denying such immunity can constitute “final decisions” under 28 U.S.C. § 1291.

The Fifth Circuit’s statutory-reading approach to § 233(l) aligned with the Ninth Circuit’s reading in Blumberger v. Tilley. While acknowledging § 233 is “hardly a model of clarity,” the court adopted the core point that § 233(l)(1) requires a case-specific determination—whether the entity is deemed a PHS employee “with respect to the actions or omissions that are the subject” of the suit, not merely whether the entity was deemed for the calendar year.

On whether § 233(l)(1) permits an “interim” appearance stating that the determination is not yet made, the Fifth Circuit noted a circuit split without resolving it: Allen v. Christenberry and Doe v. Centerville Clinics Inc. were cited for the view that the Attorney General may appear within 15 days and indicate the case-specific determination is still pending; Blumberger v. Tilley was cited for the contrary view that the Attorney General must give the required advice within 15 days. The Fifth Circuit avoided the conflict because, on the record, the Attorney General’s negative advice was filed within the 15-day window.

Finally, the court cited El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health & Hum. Servs. for a key structural point: Congress “almost certainly did not intend” § 233(l)(2) to serve as a vehicle to obtain judicial review of a negative deeming determination by the Secretary/HHS via removal.

2) Federal officer removal framework and timing

The court described § 1442 as jurisdictional, quoting Guadalupe-Blanco River Auth. v. City of Lytle, which itself quoted Mesa v. California, to emphasize that § 1442 primarily furnishes a federal forum for qualifying defendants.

For timing, the court relied on Morgan v. Huntington Ingalls, Inc. for the general proposition that § 1442 removals follow § 1446’s 30-day clock. It then applied Fifth Circuit timing doctrine from Parish of Plaquemines v. Chevron USA, Inc.: if the initial pleading “affirmatively reveal[s]” the information needed for federal officer removal, then § 1446(b)(1) governs and the 30-day period runs from receipt/service of that pleading.

The court rejected the idea that later government filings restarted or triggered a new 30-day window under § 1446(b)(3), relying on Decatur Hosp. Auth. v. Aetna Health, Inc. (later paper must be the point at which the theory becomes apparent) and also on the rule (as cited in Parish of Plaquemines v. Chevron USA, Inc.) that a triggering paper must result from the plaintiff’s voluntary act.

3) Statutory interpretation and reviewability

On textual interpretation, the court invoked United States v. Lauderdale Cnty. for the “begins and ends with the language” canon where the text is plain.

CentroMed argued, in substance, for a judicial-review-friendly reading of § 233(l)(2), but the court held that the “strong presumption” favoring judicial review applies only where the statute is “reasonably susceptible to divergent interpretation,” citing Guerrero-Lasprilla v. Barr. Because the court found § 233(l)’s removal trigger unambiguous, it declined to extend § 233(l)(2) to permit removal after a timely negative deeming advice.

On the appellate court’s independent duty to ensure jurisdiction, it cited La. Indep. Pharmacies Ass'n v. Express Scripts, Inc.. For de novo review of jurisdiction and removal propriety, it cited Oviedo v. Hallbauer.

Legal Reasoning

A. The § 233 holding: removal is available only when the Attorney General fails to appear within 15 days

The court’s central interpretive move was to read § 233(l)(1) and § 233(l)(2) as a tightly linked mechanism:

  1. What § 233(l)(1) requires: Within 15 days after notification, the Attorney General must appear in state court and advise “whether the Secretary has determined” that the entity “is deemed” a PHS employee “for purposes of this section with respect to the actions or omissions that are the subject” of the suit. The Fifth Circuit read this as a case-specific coverage/deeming advice, not a generic “deemed for the year” statement.
  2. What happens if the advice is affirmative: Because § 233(l)(1) states that such advice is “deemed to satisfy” § 233(c)’s certification requirement, an affirmative advice triggers mandatory removal and substitution/FTCA routing.
  3. What happens if the advice is negative: A negative advice means § 233’s protective pipeline does not activate for that suit. The Fifth Circuit treated the negative advice as the endpoint for the § 233 removal inquiry; disagreement with the executive branch’s case-specific determination does not create a removal right.
  4. When § 233(l)(2) applies: The court read § 233(l)(2) narrowly and literally: it authorizes removal only “[i]f the Attorney General fails to appear” within 15 days. Here, the Attorney General appeared and filed timely negative advice. Therefore, § 233(l)(2) never came into play.

This reasoning is significant because it prevents § 233(l)(2) from becoming an indirect appeal route for adverse HHS/DOJ coverage decisions. The court explicitly reinforced that point with El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health & Hum. Servs..

B. The § 1442 holding: the 30-day clock ran from service of the petition

The Fifth Circuit resolved the federal officer issue on timing alone, not substantive eligibility. It held:

  • The petition itself “affirmatively reveal[ed]” what CentroMed needed to assert federal officer removal—specifically, allegations tied to a period when CentroMed had been deemed a PHS employee—so the operative deadline was § 1446(b)(1): 30 days from receipt/service of the petition.
  • CentroMed removed 37 days after service. That is untimely.
  • The Attorney General’s state-court filings did not supply a new § 1446(b)(3) trigger because (per Decatur Hosp. Auth. v. Aetna Health, Inc.) they did not make a previously unapparent theory apparent, and (per Parish of Plaquemines v. Chevron USA, Inc.) they were not voluntary acts of the plaintiff.

Practically, the decision underscores that a defendant cannot wait for governmental confirmation or intervention-related filings before removing under § 1442 if the initial pleading already discloses the basis for removal.

Impact

1) Tightening the § 233(l) “escape hatch”

The opinion clarifies (within the Fifth Circuit) that § 233(l)(2) is a narrow backstop designed to prevent paralysis when the Attorney General does not appear—not a mechanism to litigate or relitigate a negative case-specific deeming/coverage outcome in federal court. That reading:

  • Encourages federally supported health centers to treat HHS/DOJ’s case-specific determination as dispositive for removal under § 233(l), absent failure-to-appear.
  • Limits the ability of deemed entities to use removal as leverage in non-malpractice disputes (including cyber/data-breach class actions) when the executive branch concludes the claims are outside § 233(a)’s “medical, surgical, dental, or related functions.”

2) Emphasizing diligence for § 1442 removals

On § 1442, the case serves as a cautionary precedent: when the petition supplies the facts that would support federal officer removal, the 30-day clock starts immediately on service. Defendants cannot safely wait for agency communications or Attorney General filings without risking waiver by untimeliness.

3) Forum outcomes in data-breach litigation involving federally funded providers

Although the court did not decide whether § 233(a) substantively covers data-breach claims, its acceptance of the Attorney General’s negative case-specific deeming advice (as sufficient to foreclose § 233(l)(2) removal) will tend to keep similar data-breach class actions in state court unless another federal jurisdictional basis exists (or unless DOJ/HHS takes a different position in a different case).

Complex Concepts Simplified

“Deemed” Public Health Service (PHS) employee
Some federally funded health centers can be treated like federal PHS employees for certain lawsuits, which can convert the case into one against the United States under the FTCA. Deeming is not blanket immunity for all conduct; it is tied to covered functions and a case-specific determination under § 233(l).
FTCA substitution
If § 233 applies, the United States replaces the health center/individual as defendant, and the claim proceeds (if at all) under the Federal Tort Claims Act, with its procedural requirements and limitations.
§ 233(l)(1) advice vs. § 233(l)(2) removal
Section 233(l)(1) requires the Attorney General to show up quickly in state court (within 15 days of notice) and tell the court whether HHS has determined the entity is deemed for purposes of the acts at issue. Section 233(l)(2) lets the defendant remove only if the Attorney General fails to appear in that time.
Federal officer removal (§ 1442) and the 30-day clock
Even if a defendant believes it qualifies for § 1442, it must remove on time. If the initial petition already shows the basis for § 1442, the defendant has 30 days from service of that petition—not 30 days from later developments.

Conclusion

Gonzalez v. El Centro Del Barrio establishes a clear procedural rule in the Fifth Circuit: a health center cannot invoke 42 U.S.C. § 233(l)(2) to remove when the Attorney General timely appears and provides the § 233(l)(1) advice—even if that advice is negative. The decision also reinforces that 28 U.S.C. § 1442 removals must comply with § 1446(b)(1) when the petition itself reveals the basis for removal, and later government filings generally do not restart the removal clock.

The broader significance is practical and jurisdictional: federally supported health centers facing non-traditional claims (such as data-breach class actions) should not assume § 233 will deliver a federal forum, and defendants contemplating § 1442 removal must act promptly based on what the plaintiff’s petition already shows.