The opinion of the court was delivered by: Ludwig, District Judge.
Defendant United States moves to dismiss this action on the
ground that it is barred by the Federal Torts Claims Act,
28 U.S.C. § 1346. Fed.R.Civ.P. 12. Before the issue can be reached,
it is necessary to decide the propriety of the substitution of
the United States as a party defendant. Because the record on
that subject is not ready for a ruling, the disposition of the
dismissal motion will be deferred.
Plaintiff Zulay Rendon is the parent of Karina Garcia, a minor,
whose care by a number of physicians is alleged to have resulted
in avascular necrosis. On September 17, 1999 this medical
malpractice action was begun in the Common Pleas Court of
Philadelphia, and on November 24, 1999 it was removed here by the
United States. The removal petition included a general
certification that one of the defendants, Philadelphia Health
Services, was a covered entity under the Public Health Service
Act, as amended by the Federally Supported Health Centers
Assistance Act, 42 U.S.C. § 233. It also stated that Philadelphia
Health Services was an employee of the United States, but did not
set forth that Philadelphia Health Service's medical staff were
acting within the scope of their employment at the time of the
On January 11, 2000 an order was entered substituting the
United States for Philadelphia Health Services. On February 11,
2000 plaintiff filed a "Motion for Judicial Review" of the
removal certification challenging it because it was based on "a
different understanding of the facts than is reflected in the
Plaintiff's Complaint."*fn1 On February 18, 2000 the U.S.
Attorney supplemented the removal petition with a certification
that the physicians in question were acting within the scope of
their governmental employment.
Under the Public Health Service Act, the United States, in
certain circumstances, may "deem" entities and their employees to
be a part of the Public Health Services (PHS), thereby bringing
them within the jurisdiction of the Federal Torts Claims Act
(FTCA). 42 U.S.C. § 233. Under § 233, the FTCA is the exclusive
remedy for medical malpractice committed by PHS employees acting
within the scope of their employment. 42 U.S.C. § 233(a), (g).
Once the Secretary for Health and Human Resources makes the
requisite determination, it "shall be final and binding upon the
Secretary and Attorney General and other parties to any civil
action or proceeding." 42 U.S.C. § 233(g)(1)(F). Thereafter, a
personal injury action instituted against such an entity or
employee in state court is removable upon the certification of
the Attorney General "that the defendant was acting in the scope
of his employment at the time of the incident out of which the
suit arose." 42 U.S.C. § 233(c). The action "shall be removed. .
. . to the district court of the United States of the district
and division embracing the place where it is pending and the
proceeding deemed a tort action brought against the United States
under the provisions of Title 28 and all references thereto."
Insofar as plaintiff challenges the Secretary's decision to
"deem" Philadelphia Health Services a PHS entity, such
review is foreclosed.*fn2 The statute itself suggests that this
decision is unreviewable. 42 U.S.C. § 233(g). See Brown v.
Health Service, Inc., 971 F. Supp. 518, 521 (M.D.Ala. 1997) ("The
statute does not provide for judicial review of the individual
administrative decisions which culminate in FTCA protection").
Once deemed, review of the Secretary's decision is precluded for
all parties, including the United States; and the United States,
upon suit, must determine whether the incident occurred within
the scope of employment. 42 U.S.C. § 233(b), (c).
The decision to certify scope of employment, however, is
reviewable, albeit narrowly. While there is no reported case
construing review of certification under 42 U.S.C. § 233, our
Court of Appeals has held such certification decisions are
reviewable in the context of the Federal Employees Liability
Reform and Tort Compensation Act, which amended the FTCA,
28 U.S.C. § 1346(b), 2671-2680. See Melo v. Hafer, 912 F.2d 628,
641 (3d Cir. 1990) ("There is no reason why Congress would have
provided employees with judicial review of the scope of
employment certification decisions while denying a similar review
of certification decisions to dissatisfied plaintiffs"). Schrob
v. Catterson delineated the type of review:
The scope of certification is prima facie evidence
that the employee's challenged conduct occurred
within the scope of employment, but it is not
conclusive. Thus, a plaintiff challenging the
certification has the burden of coming forward with
specific facts rebutting it. If the facts can be
determined without an evidentiary hearing, the court
can rule on a pretrial motion to substitute or set
aside the substitution based on the certification,
pleadings, documentary evidence, and affidavits.
On the other hand, if there is a genuine issue of
fact material to the scope of employment question,
the district court should permit discovery and
conduct a hearing, if necessary. But the district
court should ensure that both the discovery and the
hearing are circumscribed as narrowly as possible,
although these matters are within its discretion.
967 F.2d 929, 936 (3d Cir. 1992).
More recently, the scope of review was further clarified in
[T]he Attorney General may file a certification . . .
whenever he or she concludes that an employee
defendant was acting within the scope of his or her
employment at the relevant time or times. This may
include cases in which the plaintiff alleges conduct
which is beyond the scope of defendant's employment,
but which the Attorney General determines did not
The Attorney General's certification should state
the basis for his or her conclusion. If this is done,
the certification will focus the subsequent
proceedings on the motion for substitution and the
certification can be given prima facie effect in
those proceedings that Congress intended it to have.
If the Attorney General's certification is based
upon a different understanding of the facts than is
reflected in the complaint, the plaintiff should be
permitted reasonable discovery and should then be
called upon to come forward, as if responding to a
motion for summary judgment, with competent evidence
supporting the facts upon which he would predicate
liability, as well as any other ...