In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2019 No. 19-227

AISHA AGYIN, Plaintiff,

v.

SHAHRAM RAZMZAN, Defendant-Appellant,

UNITED STATES OF AMERICA, Appellee.*

On Appeal from the United States District Court for the Southern District of New York

ARGUED: FEBRUARY 4, 2020 DECIDED: JANUARY 26, 2021

Before: POOLER, LYNCH, and MENASHI, Circuit Judges.

* The Clerk of Court is directed to amend the caption as set forth above. After he was sued for medical malpractice in state court, Dr. Shahram Razmzan removed the case to federal court and moved to substitute the United States as the defendant in his place. Razmzan argued that the alleged malpractice occurred within the scope of his employment at a federally deemed community health center, entitling him to immunity and the substitution of the United States as the defendant under the Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n).

The U.S. District Court for the Southern District of New York (Karas, J.) disagreed in part. It concluded that some of the alleged malpractice occurred outside the scope of Razmzan’s employment because he had billed for some of his services privately, in contravention of the Federal Tort Claims Act Health Center Policy Manual (the “FTCA Manual”), and that he was therefore not covered by the FSHCAA implementing regulation, 42 C.F.R. § 6.6. The district court denied substitution of the United States as to that conduct and remanded the case in part to state court. Razmzan appealed.

The government argues that we lack jurisdiction to entertain this appeal because Razmzan appealed from an unreviewable remand order. Pursuant to 28 U.S.C. § 1447(d), remand orders are unreviewable except in cases that were originally removed under 28 U.S.C. § 1442 or § 1443. Because Razmzan removed this case under § 1442, we are not barred from reviewing the district court’s remand order. As to the merits of the appeal, we conclude that Razmzan was acting within the scope of his employment under the relevant law— New York law—for the acts for which he billed privately. The FTCA Manual is not entitled to deference to the extent that it provides otherwise. Accordingly, we REVERSE the district court’s order in

2 part and REMAND for further proceedings consistent with this opinion.

MATTHEW S. FREEDUS, Feldesman Tucker Leifer Fidell LLP, Washington, DC (Jonay F. Holkins and David A. Bender, on the brief), for Defendant-Appellant.

BENJAMIN H. TORRANCE, Assistant United States Attorney (Jennifer C. Simon, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

MENASHI, Circuit Judge:

In 2016, Aisha Agyin sued Dr. Shahram Razmzan in state court for medical malpractice related to his delivery of her stillborn child. At the time of the alleged malpractice, Razmzan was an employee of Hudson River Health Care, Inc. (“HRHCare”), a “deemed” community health center pursuant to the Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n). Under the FSHCAA, federally deemed community health centers and their employees are immune from malpractice suits for acts or omissions that occur within the scope of their employment. Based on this immunity, Razmzan removed the action to the U.S. District Court for the Sou