United States District Court, N.D. California.

Helen PEREZ, Plaintiff,



No. 12?5403?SC.

March 21, 2013.

Brian Leroy Larsen, Law Offices of Brian L. Larsen, San Francisco, CA, for Plaintiff.

Jennifer S. Wang, United States Attorney's Office, Alex Gene Tse, Melinda Haag, U.S. Attorneys Office, San Francisco, CA, for Defendant.


SAMUEL CONTI, District Judge.


*1 Plaintiff Helen Perez (“Perez”) brings this action in connection with an alleged slip-and-fall injury she sustained on the premises of Defendant Consolidated Tribal Health Project, Inc. (“Tribal Health”). Perez initially filed a complaint in Mendocino County Superior Court. The U.S. Attorney subsequently removed on the grounds that Tribal Health is funded pursuant to the Indian Self?Determination and Education Assistance Act (“ISDEAA”), 25 U.S .C. ? 450 et seq., and thus Perez's claims are governed by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. ? 1346(b). ECF No. 1 (Notice of Removal (“NOR”)). Perez now moves to remand the action back to state court. ECF No. 16 (“Mot.”). Tribal Health has opposed the motion, ECF No. 21 (“Opp'n”), but Perez has not filed a reply brief. Pursuant to Civil Local Rule 7?1(b), the Court finds this matter appropriate for resolution without oral argument. For the reasons set forth below, Perez's motion to remand is DENIED.


On March 3, 2011, Perez visited Tribal Health's facilities in Redwood Valley, California for a medical appointment.FN1 See ECF No. 1?1 (“Compl.”). During her visit, Perez slipped and fell in Tribal Health's restroom. Id. Perez alleges that Tribal Health was “careless, negligent, and departed from accepted and standard medical standards, generally, and specifically, in failing to properly maintain their office and restroom, causing [her] to sustain personal injuries.” Id. In her motion for remand, Perez concedes that her Complaint “was not a model of clarity,” and that she intended only to bring a cause of action for general negligence, not medical malpractice. Mot. at 7?8.

FN1. In her Complaint, Plaintiff alleges that her appointment was either on March 3, 2012 or March 3, 2010. Plaintiff's Motion states that, due to a scrivener's error, the Complaint sets for the wrong date. Mot. at 7.

Since at least 2005, Tribal Health has operated under a compact and funding agreement with the United States Department of Health and Human Services (“HHS”) pursuant to the ISDEAA. Pete Decl.FN2 Exs. A (“Tribal Health?U.S. Compact”), B (“CY2011 Funding Agreement”). The Tribal Health?U.S. Compact provides that “FTCA coverage of [ Tribal Health] and its employees shall be governed by Pub.L. 93?638, as amended, and federal regulations relating thereto.” Tribal Health?U.S. Compact Art. IV ? 7(a). The Funding Agreement is incorporated into the compact, id. Art. VIII ? 1, and obligates Tribal Health to provide for a number of programs, services, functions, and activities, including general health services and general program administration, CY2011 Funding Agreement ? 2(A), (C). Under the CY2011 Funding Agreement, general program administration includes responsibility for “facilities, personnel, property and supply, housekeeping, and telecommunications management,” as well as the maintenance of “functional and safe equipment and physical plant.” Id. ? 2(C)(2)(3).

FN2. Preston Pete, Consolidated Health's finance director, filed a declaration in opposition to Perez's motion to remand. ECF No. 23 (“Pete Decl.”).

Perez filed this action in Mendocino County Superior Court on March 5, 2012. Tribal Health filed a demurrer in Superior Court, arguing that, as a tribal business entity, it was entitled to sovereign immunity. ECF No. 19 (“Pl.'s RJN”) Ex. B. Judge Cindee Mayfield overruled the demurrer, finding that the issue called for consideration of evidence beyond that presented on the face of the Complaint. Id. The U.S Attorney received notice of the action on October 12, 2012 and removed the action to federal court on behalf of Tribal Health on October 19, 2012. NOR ? 2.

*2 After removal, Tribal Health moved to dismiss on the grounds that (1) only the United States is a proper defendant in an FTCA action, and (2) Perez failed to file an administrative claim with HHS as required by the FTCA. ECF No. 4 (“MTD”). Perez failed to respond to the motion and the Court issued an order to show cause. At the show cause hearing, Perez's counsel argued that the case was improperly removed. The Court directed Perez to file a motion to remand, which Perez subsequently did.


In her motion to remand, Perez argues that the Court lacks subject-matter jurisdiction under 28 U.S.C. ? 1331, because she does not seek relief under federal law and a federal question is not apparent from the face of her complaint. Mot. at 9?10. But ? 1331 does not control here because Perez has brought suit against an agency of the United States. Accordingly, the Court's jurisdiction should be assessed under 28 U.S.C. ? 1442(a).FN3

FN3. Perez also argues that the action was untimely removed. However, under the FTCA, the United States has the right to remove an action to a federal district court “at any time before trial.” 28 U.S.C. ? 2679(d)(2).

Section 1442(a) allows for the removal to federal court of any civil action against the “United States or any agency thereof ... for or relating to any act under color of such office ....“ 28 U.S.C. ? 1442(a)(1). Section 1442 is to be “interpreted broadly in favor of removal.” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.2006). “A party seeking removal under section 1442 must demonstrate that (a) it is a ‘person’ within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a ‘colorable federal defense.’ ” Id. at 1251. Here, all three requirements are met.

With respect to the first requirement of ? 1442, Tribal Health is a federal entity covered by the FTCA for purposes of Perez's negligence claim under the ISDEAA. The ISDEAA provides that tribal organizations may enter into “self-determination contracts” with the Department of the Interior (“DOI”) and HHS to administer programs or services that would otherwise have been administered by the federal government. 25 U.S.C. ? 450f. It also provides that for the purposes of personal injury claims “resulting from the performance ... of medical, surgical, dental, or related functions,” tribal organizations carrying out self-determination contracts are “deemed to be part of [HHS's] Public Health Service.” Id. ? 450f (d).

Perez argues that 25 U.S.C. ? 450f is inapplicable here because her injury arose out of a slip and fall, not a personal injury “resulting from the performance ... of medical, surgical, dental, or related functions.” Mot. at 11?12. But her injury did result from Tribal Health's performance of medical functions. Perez visited Tribal Health for a medical appointment. In any event, to the extent that there is any ambiguity concerning the statutory language “resulting from the performance ... of medical ... functions,” HHS and DOI have promulgated regulations clarifying that ambiguity. Pursuant to 25 C.F.R. ? 900.204, the “FTCA [is] the exclusive remedy for a non-medical related tort claim arising out of the performance of a self-determination contract [.]” FN4

FN4. Perez also argues that HHS admits that the FTCA only protects health centers from medical malpractice claims, pointing to an HHS website which states that federally support health centers are “immune from suit for medical malpractice claims.” Mot. at 15. But nothing on that website states that a health center's immunity is limited to medical malpractice claims.

*3 As to the second requirement of ? 1442, there is a causal nexus between Tribal Health's actions as a federal entity and Perez's claims. Perez's claims arise out of her medical appointment at Tribal Health on March 3, 20011. Perez alleges that Tribal Health provided her with medical care and that it “was careless, negligent, and departed from accepted ... standard[s] ... in failing to properly maintain their office and restroom.” Compl. Tribal Health operates under a compact and funding from HHS, and the compact and funding agreement obligate Tribal Health to provide general health services, as well as maintenance and management of its facilities. See Tribal Health?U.S. Compact; CY2011 Funding Agreement.

With respect to the third requirement of ? 1442, Tribal Health has asserted a colorable federal defense of sovereign immunity. The FTCA constitutes a waiver of federal sovereign immunity because it permits torts claims against the federal government in certain instances, but it requires plaintiffs to present their claims to the appropriate Federal agency prior filing to suit. See 28 U.S.C. ? 2675. Tribal Health argues that Perez has failed to meet this requirement.FN5 See MTD.

FN5. Perez's motion to remand also includes a demand for a jury trial. That request is DENIED. Pursuant to 28 U.S.C. ? 2402, any action brought under the FTCA must tried by the court without a jury.


For the reasons set forth above, Plaintiff Helen Perez's motion to remand is DENIED. Defendant Tribal Health's motion to dismiss is still pending before the Court. Perez shall respond to that motion within fourteen (14) days of the signature date of this Order. Failure to do so may result in dismissal of this action with prejudice.