Friedenberg et al v. Lane County et al

Filing 91

OPINION AND ORDER: Defendants' motion 79 is GRANTED, and the Court STAYS its remand order 76 to allow defendants to appeal the order. The STAY shall remain in effect until that appeal has been resolved. Signed on 1/26/2021 by Judge Ann L. Aiken. (ck)

Case 6:18-cv-00177-MK

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

SAM FRIEDENBERG, personal
representative of the estate of MARC
SANFORD; DEREK LARWICK, personal
representative of the estate of RICHARD
BATES; and LORRE SANFORD, an
individual,

Case No. 6:18-cv-00177-MK
OPINION AND ORDER

Plaintiffs,
vs.
LANE COUNTY; LANE COUNTY
MENTAL HEALTH aka LANE COUNTY
BEHAVIORAL HEALTH; CARLA AYRES;
ERIK MORRIS; FRANCES FREUND; and
JULIE RIUTZEL,
Defendants.

AIKEN, District Judge:
Before the Court is defendants’ motion to stay remand order pending appeal.
Doc. 79. For the reasons that follow, defendants’ motion is GRANTED.

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Plaintiffs filed this wrongful death action in Lane County Circuit Court against
defendants, Lane County, Lane County Mental Health (“LCMH”), and several LCMH
employees. Pursuant to section 233(l)(2) of the Federally Supported Health Care
Assistance Act of 1999 (“FSHCAA”), 42 U.S.C. § 233, defendants removed the case to
this Court, alleging that the individual defendants were “deemed” employees of the
United States Public Health Service (“PHS”) and were acting within the scope of that
employment at the time of the alleged misconduct.1 Defendants further alleged that
that this designation affords LCMH employees the same immunity afforded to PHS
employees pursuant to the FSHCAA, see 42 U.S.C. §§ 233(a), (g), and they sought to
have the United States substituted as the defendant and the suit converted to an
action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1).
Plaintiff filed a Motion for Remand to State Court, citing lack of jurisdiction,
but the Court denied the motion and ordered a § 233(l)(2) hearing “for the specific
purpose of determining the appropriate forum or procedure for the assertion of
plaintiffs’ claim for damages.” Doc. 21 at 7. Before the hearing, the United States
filed a Statement of Interest (doc. 39) and defendants filed a Motion to Join and

Under the FSHCAA, suits against employees of deemed entities may be removed from state
court to federal court in two ways. First, the Attorney General or her designee may “at any time before
trial” certify that the defendants are entitled to FTCA coverage or appear within 15 days of notification
of the filing of the case in state court and advise the court whether the Secretary has determined that
the defendants are entitled to coverage. 42 U.S.C. § 233(c), (l)(1). Second, if the Attorney General or
her designee “fails to appear in State court within [the 15-day] time period,” the defendants may
remove the case to the appropriate United States district court. 42 U.S.C. § 233(l)(2). Upon removal
under § 233(l)(2), the action shall be stayed “until such court conducts a hearing, and makes a
determination, as to the appropriate forum or procedure for the assertion of the claim for damages”
and issues an order consistent with such determination.” Id.
1

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Compel (doc. 42). The Court stayed briefing on defendants’ Motion to Join and
Compel pending ruling on the matters in the § 233(l)(2) hearing. Doc. 43.
Following the hearing, United States Magistrate Judge Mustafa T. Kasubhai
issued findings and recommendation (“F&R”) concluding that defendants are not
entitled to immunity under 42 U.S.C. § 233(a) because defendants alleged misconduct
did not fall within “the performance of medical . . . or related functions[.]” Doc. 66.
As a result, Judge Kasubhai recommended that the case be remanded to state court
and that defendants’ Motion to Join and Compel be denied as moot. Id. This Court
adopted the F&R in full. Doc. 76.
Then, pursuant to defendants’ motion (doc. 78), this Court stayed the order of
remand temporarily, to allow for briefing and oral argument on the matter. Docs. 82,
86. The parties appeared for oral argument on January 21, 2021. Doc. 90.
Defendants seek to stay remand of this action pending appeal of the Court’s
Order on the § 233 issue.2 The decision to grant or deny a stay pending appeal is
subject to the Court’s discretion and is exercised only if warranted by the
“circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009). In
the exercise of this discretion, courts consider:
(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.

Defendants also request certification under 28 U.S.C. § 1292(b). Doc. 78 at 2. The Court
declines to do so. As defendants note, such certification “is unnecessary” in this case. Id.
2

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Hilton v. Braunskill, 481 U.S. 770, 776 (1987). These “stay factors contemplate
individualized judgments in each case, [and] the formula cannot be reduced to a set
of rigid rules.”

Id. at 777.

In the Ninth Circuit, courts employ a sliding-scale

approach where a stay may be granted if the moving party demonstrates “a
substantial case on the merits and that the balance of hardship tips sharply in favor
of a stay.” See Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir. 2011).3

Here,

defendants have made that showing.
Although the Court stands by its earlier ruling, the somewhat novel § 233 issue
presents a close question. Further, the issue currently pending before the Supreme
Court in BP P.L.C. v. Mayor and City Council of Baltimore, 952 F.3d 452 (4th Cir.
2020), cert. granted, 141 S. Ct. 222 (U.S. Oct. 2, 2020) (No. 19-1189) (argued Jan. 19,
2021), may impact the parties’ dispute over whether this Court’s remand order is
reviewable on appeal.
Moreover, the balance of hardships strongly favors staying the remand order.
Although a delay in resolving this litigation does burden plaintiffs, if defendants are
correct that they are entitled to immunity under § 233(a) and (g), a remand order

In Leiva-Perez v. Holder, the Ninth Circuit observed that, although the stay factors are the
same factors applied when considering a preliminary injunction, “a flexible approach is even more
appropriate in the stay context[:]”
3

Whereas the extraordinary remedy of injunction is the means by which a court directs
the conduct of a party with the backing of its full coercive powers, a stay operates only
upon the judicial proceeding itself either by halting or postponing some portion of the
proceeding, or by temporarily divesting an order of enforceability. . . . In other words,
although a stay pending appeal certainly has some functional overlap with an
injunction, . . ., stays are typically less coercive and less disruptive than are
injunctions.
640 F.3d 962, 966 (9th Cir. 2011) (quotations and citations omitted, alterations normalized, and
emphasis in original).

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would subject defendants to the burdens of state court litigation, and their right to be
free from litigation will be compromised and lost to a degree. Section 233(l)(2) also
strongly supports continuing the stay in these circumstances by imposing a stay by
operation of law upon removal to federal court.
Accordingly, defendants’ motion (doc. 79) is GRANTED, and the Court STAYS
its remand order (doc. 76) to allow defendants to appeal the order. The STAY shall
remain in effect until that appeal has been resolved.
IT IS SO ORDERED.
26th
Dated this _____ day of January 2021.

/s/Ann Aiken
__________________________
Ann Aiken
United States District Judge

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