Velanta Monique Babbitt, in her individual capacity v. Dignity Health, a California corporation

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VELANTA MONIQUE BABBITT, in her
individual capacity and as parent and
guardian of B. D., a minor,
Plaintiff-Appellee,
v.
DIGNITY HEALTH, a California
corporation,
Defendant-Appellee,
v.
SEBHAT AFEWORK, M.D.,
Defendant-Appellant,
v.
UNITED STATES OF AMERICA,
Movant-Appellee.
No. 18-56576
D.C. No.
2:18-cv-06528-DMG-FFM
Central District of California,
Los Angeles
ORDER
Before: KLEINFELD, NGUYEN, and BADE, Circuit Judges.
The memorandum disposition filed August 10, 2020, is withdrawn and
replaced with the disposition filed concurrently with this order.
FILED
JAN 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VELANTA MONIQUE BABBITT, in her
individual capacity and as parent and
guardian of B. D., a minor,
Plaintiff-Appellee,
v.
DIGNITY HEALTH, a California
corporation,
Defendant-Appellee,
v.
SEBHAT AFEWORK, M.D.,
Defendant-Appellant,
v.
UNITED STATES OF AMERICA,
Movant-Appellee.
No. 18-56576
D.C. No.
2:18-cv-06528-DMG-FFM
MEMORANDUM*
FILED
JAN 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted March 6, 2020
Submission Withdrawn September 2, 2021
Resubmitted January 31, 2023
Pasadena, California
Before: KLEINFELD, NGUYEN, and BADE, Circuit Judges.**
We decided this case previously, holding that we lacked jurisdiction to
review the district court order remanding it to state court. See K.C. v. Khalifa, 816
F. App’x. 111 (9th Cir. 2020). We held the mandate and withdrew the case from
submission pending the Supreme Court’s decision in BP P.L.C. v. Mayor and City
Counsel of Baltimore, 141 S. Ct. 1532 (2021), and its ruling on Afework’s petition
for certiorari, Afework v. Babbitt, 141 S. Ct. 2754 (2021). After the Court decided
BP, and denied Afework’s petition for certiorari, we ordered supplemental
briefing. Now, with the benefit of the BP decision and the parties’ supplemental
briefing, we decide the case again. Our conclusion is that the outcome is not
changed.
** The original panel, consisting of Judge Kleinfeld, Judge Nguyen, and
Judge Pauley, heard oral argument on March 6, 2020. Judge Pauley died on July 6,
after our earlier decision, but before we withdrew the case from submission, and
Judge Bade was drawn to replace him. She has read the briefs, reviewed the
record, and watched the oral argument.
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This case was filed in state court and removed to federal court. The district
court ordered it remanded to state court.1 Ordinarily, remands are unreviewable
under 28 U.S.C. § 1447(d), but there is a statutory exception to that limitation if the
case was removed under 28 U.S.C. § 1442 (federal officer removal). Afework
removed the case under that section and also 42 U.S.C. § 233 (public health service
officers, and employees and persons deemed to be public health service employees
under 42 U.S.C. § 233(g)(1)). In BP, the Court held that if a case is removed under
§ 1442, and later remanded, we have jurisdiction to review the entire remand order,
not just the portion of the order addressing § 1442. 141 S. Ct. at 1538. And, it
explained, rather than construing the § 1447 exception to nonreviewability
narrowly, as some courts had held, the statute should be given a “fair reading.” Id.
at 1538 (internal quotations omitted).
The district court held that the § 1442 removal was late. A notice of removal
must, under 28 U.S.C. § 1446, be filed within 30 days of receipt by the defendant
of service or receipt of a copy of the complaint. 28 U.S.C. § 1446(b). The date of
service or receipt was contested. Afework declared that he was never served, and
1 Previously, there were other defendants from a consolidated case on this
appeal, including Dr. Khalifa, but a state court dismissed the claims against Khalifa
with prejudice and the other claims in the consolidated case were settled, so only
Dr. Afework’s attempt at removal remains on this appeal. K.C. v. Khalifa, 857 F.
App’x. 958, 958-59 (9th Cir. 2021).
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learned of the case from a letter to him by co-defendant Dignity Health on July 27,
2018. The plaintiff, Babbitt, provided a proof of service stating that Afework was
served March 26, 2018. That was more than 30 days before the July 27 removal.
The district court found that service was in fact accomplished March 26, and we
cannot conclude that this finding is clearly erroneous. See S.E.C. v. Internet Sols.
for Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007) (“[T]he district court’s factual
findings regarding jurisdiction are reviewed for clear error.”) (quotation marks and
citation omitted)). Accordingly, the removal, insofar as it was based on § 1442,
was too late, as the district court concluded.
As for the § 233 removal, the statute provides that the Attorney General
must appear in the state court where the action was filed within 15 days of being
notified of the filing and advise the court whether the individual or entity has been
deemed to be a public health service employee. § 233(l)(1). If the Attorney
General fails to appear, the entity or individual may remove the action.
§ 233(l)(2). Afework removed the case eleven days after giving notice of it to the
Attorney General. The district court accordingly remanded the § 233 removal on
the basis that it was too early, denying the Attorney General his 15 days to appear
and advise. It was, so we affirm on this ground as well. Afework presents good
arguments for why the timing provisions of § 233 so applied undermine the
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purpose of the statute, and that the Attorney General did not comply with his
obligations under § 233, but we are compelled by the language of the statute to
conclude that when he removed the case, the statutory condition precedent “if the
Attorney General fails to appear within the time period prescribed” was not met.
§ 233(l)(2).
AFFIRMED.
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