MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

The United States has filed a Notice of Removal (ECF 1), by which it removed from the Maryland Health Claims Alternative Dispute Resolution Office ("HCADRO") a medical malpractice claim filed by Gail Wilson, plaintiff. In doing so, the Government relied on two statutes: the federal officer removal statute, 28 U.S.C. § 1442, and the removal statute codified in 28 U.S.C. § 2679, a provision of the Federal Tort Claims Act ("FTCA") that is commonly known as the "Westfall Act."1 Both of these statutes authorize, under certain circumstances, the removal to federal court of a "civil action ... commenced in a State court." 28 U.S.C. § 1442(a)(1); see also 28 U.S.C. § 2679(d)(2) (authorizing removal of "any civil action or proceeding commenced upon [a certain type of tort] claim in a State court").

The Court, sua sponte, raised the jurisdictional question of whether the HCADRO is a "State court," within the meaning of either statute. On August 17, 2011, after the parties had briefed the issue, the Court held a hearing to consider the issue of subject matter jurisdiction. For the reasons that follow, I conclude that the HCADRO qualifies as a "State court" within the meaning of 28 U.S.C. § 1442, and thus the removal was lawful.

Factual and Procedural Background

This case represents the second iteration of a medical malpractice suit involving Ms. Wilson. In an earlier suit, filed in federal court on August 30, 2010, Wilson alleged that the defendant physicians were professionally negligent in regard to her medical care. See Gail Wilson v. U.S. Dept. of Veterans Affairs, et al., Civ. No. ELH-10-2385 (D.Md.) ("Wilson I"). In particular, she claimed that, on May 29, 2009, a "long piece of surgical tubing" was left "imbedded" in her right foot during surgery to correct a "possible nerve entrapment." Donald H. Gottlieb, M.D., defendant, a physician employed by the federal government at the Veterans Affairs Medical Center in Baltimore, performed the surgery. In addition to Dr. Gottlieb, plaintiff sued Dr. Ngozi Kelech Ezeude, another federally-employed physician, who allegedly treated plaintiff for pain and inflammation at the surgical site following the surgery. Plaintiff also named as defendants the United States Department of Veterans Affairs and the Baltimore VA Medical Center. Although the United States itself was not listed as a defendant in the caption of the complaint, plaintiff identified the United States as "the Defendant" in the complaint's first paragraph. See Wilson I, ECF 1.

The Government moved to dismiss Wilson I, claiming that plaintiff failed to allege that she had filed her claims, accompanied by a certificate of a qualified expert, with the HCADRO. See Wilson I, ECF 9 & 10. The Government argued that, pursuant to the Maryland Health Care Malpractice Claims Act (the "Malpractice Claims Act"), Md. Code (2006 Repl. Vol., 2010 Supp.), §§ 3-2A-01 et. seq. of the Courts & Judicial Proceedings Article ("C.J."), the filing of a claim and expert certificate with the HCADRO is a condition precedent to maintenance of a medical malpractice action in Maryland. See, e.g., Carroll v. Konits, 400 Md. 167, 172, 929 A.2d 19, 22 (2007). This Court agreed and, on February 8, 2011, I granted the motion to dismiss in Wilson I, without prejudice. Plaintiff was afforded the opportunity to amend her complaint to allege compliance with the conditions precedent. She did not file an amended complaint, however. Accordingly, the Court issued an order closing the case on March 15, 2011. See Wilson I, ECF 11.

Although plaintiff did not amend her complaint in Wilson I, she had, in fact, filed a claim with the HCADRO, on or about January 4, 2011. Then, on May 5, 2011, the United States initiated the present case ("Wilson II") by filing a Notice of Removal (ECF 1), removing the HCADRO proceeding to this Court, pursuant to the federal officer removal statute and the Westfall Act. See 28 U.S.C. §§ 1442(a)(1), 2679(d)(2). Along with its Notice of Removal, the United States filed a copy of plaintiff's "Claim Form," filed in the HCADRO, attached to which was a letter setting forth plaintiff's "Basis of Claim" (ECF 2).2 The Claim Form identified three "health care providers": Dr. Gottlieb and Dr. Ezeude, as well as a third physician, Dr. Janette A. Thompson.3 The Basis of Claim reiterated plaintiff's previous allegations of malpractice against Dr. Gottlieb, and alleged that Dr. Thompson unsuccessfully performed a procedure on plaintiff's foot almost three years before the surgery performed by Dr. Gottlieb.4 The Notice of Removal identified three other exhibits: summonses received by Dr. Gottlieb and Dr. Thompson,5 and a certification by United States Attorney Rod J. Rosenstein that the three physicians "were acting within the scope of their employment as employees of the United States at the time of the incident out of which plaintiff's claim arose."

On May 13, 2011, before any response to plaintiff's claim was filed by the United States or the three individual physicians,6 I issued an Order (ECF 10), inquiring whether the Court possessed subject matter jurisdiction. In particular, I noted that both the federal officer removal statute and the Westfall Act grant removal jurisdiction with respect to a proceeding commenced in a "State court." See 28 U.S.C. §§ 1442(a)(1), 2679(d)(2). Because the HCADRO is an administrative agency in the executive branch of Maryland's state government, it was not clear to me that the HCADRO constituted a "State court" for purposes of removal. Therefore, I directed the parties to brief the issue of subject matter jurisdiction.

Courts have "an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz Corp. v. Friend, ___ U.S. ___, 130 S.Ct. 1181, 1193, 175 L.Ed.2d 1029 (2010). With regard to removed cases, 28 U.S.C. § 1447(c) requires: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."

Judge Richard D. Bennett of this Court has previously concluded that whether "removal was improper ... because the underlying action was pending before a state administrative agency and not a state court raises [a] jurisdictional defect," which can be considered by the court, sua sponte. Gottlieb v. Lincoln Nat'l Life Ins. Co., 388 F.Supp.2d 574, 579 & n. 3 (D.Md. 2005). Although the Fourth Circuit has not addressed the issue, the Third Circuit has likewise considered, sua sponte, whether removal from a state administrative agency satisfied subject matter jurisdiction. See Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1261 (3d Cir.1994) ("Although Sun Buick did not contend in its brief that the Board of Vehicles was not a `court' for purposes of [the removal statute], we raised the issue sua sponte pursuant to our obligation to be assured of our own jurisdiction.").7

Plaintiff filed a "Response to Defendant's Notice of Removal" on May 25, 2011, in opposition to defendants' Notice of Removal, asserting that the case was not removed from a state court, and asking the Court to "deny" defendants' Notice of Removal (ECF 14).8 The United States filed a memorandum on June 10, 2011 ("Def. Memo.") (ECF 16), arguing that the HCADRO constitutes a "State court" for purposes of the federal officer removal statute and the Westfall Act. In a letter to counsel dated July 27, 2011 (ECF 18), the Court posed several questions for consideration at the hearing on August 17, 2011. Thereafter, plaintiff filed a supplemental submission (ECF 19).

To be sure, not every defect in removal is jurisdictional. A mere "error in the removal process," such as failure of all defendants to join in the removal or failure to remove timely, is not jurisdictional and is waivable by the parties. Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir.2006); see also Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196-97 (4th Cir.2008). However, I join Judge Bennett and the Third Circuit in concluding that the requirement of removal from a "State court" is jurisdictional. Unlike mere requirements of timeliness or form, the requirement that a removed case have been pending in a state court goes to the heart of whether the controversy is appropriate for judicial resolution. It is to that issue that I now turn.

Discussion

The federal officer removal statute provides for the removal of a "civil action or criminal prosecution commenced in a State court" against "any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1) (emphasis added). Invocation of the federal officer removal statute is "predicated on the allegation of a colorable federal defense" by the defendant officer. Mesa v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); see Jamison v. Wiley, 14 F.3d 222, 238-39 & n. 17 (4th Cir.1994).

The Westfall Act provides that a tort suit against the United States under the FTCA is the exclusive remedy for a claim of "injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). The Westfall Act's removal provision states, id. § 2679(d)(2) (emphasis added):

The requirement of removal from a "State court" is not peculiar to the federal officer removal statute and the Westfall Act. It is also a feature of the general removal statute, 28 U.S.C. § 1441. That provision authorizes removal of cases from "State court" on the basis of federal question jurisdiction or diversity jurisdiction.

Notably, I am unaware of any reported decision of this Court or the Fourth Circuit deciding whether the HCADRO is a "State court" for purposes of removal. In the context of this case, however, I am satisfied that it is.

The HCADRO is the successor to an agency known as the Health Claims Arbitration Office ("HCAO"). A handful of reported decisions of this Court considered whether the HCAO was a state court for removal purposes, although they ultimately did not resolve the issue.9 See Chaghervand v. CareFirst, 909 F.Supp. 304, 308 (D.Md.1995) (declining to resolve contention that "the Maryland Health Claims Arbitration Office is not a `state court' for purposes of removal," because removal was improper on other grounds); Whitcomb v. Potomac Physicians, P.A., 832 F.Supp. 1011, 1012-13 (D.Md.1993) (same); see also Jackson v. Roseman, 878 F.Supp. 820 (D.Md.1995) (remanding to HCAO based on improper removal on other grounds, without considering whether HCAO was a state court for removal purposes). Defendants rely on an unreported decision from this Court, discussed infra, in which Judge Frederic Smalkin determined that the HCAO was a "State court" for purposes of removal under the general removal statute, 28 U.S.C. § 1441. See Carroll v. Total Health Care, Civ. No. FNS-95-791 (D. Md. April 6, 1995).10

"Whether removal can extend to proceedings before administrative agencies has generated substantial debate in the federal courts." Rockville Harley-Davidson, Inc. v. Harley-Davidson Motor Co., 217 F.Supp.2d 673, 676 (D.Md.2002). As Judge Motz explained in Harley-Davidson: "Several circuits have applied a functional test, allowing removal in cases in which a state administrative agency functions as a court. Other courts have found it impermissible to ever remove an action pending before a state agency `regardless of how court-like the proceedings may be,'" id. (citations omitted), applying what might be termed a "literal test." Compare, e.g., Floeter v. C.W. Transp., Inc., 597 F.2d 1100, 1101-02 (7th Cir.1979) (applying functional test); Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 43-44 (1st Cir.1972) (same), with Porter Trust v. Rural Water Sewer & Solid Waste Mgmt. Dist. No. 1, 607 F.3d 1251, 1254-55 (10th Cir.2010) (applying literal test); Oregon Bureau of Labor & Indus. ex rel. Richardson v. U.S. West Commc'ns, Inc., 288 F.3d 414, 417-18 (9th Cir.2002) (same); see also Sun Buick, supra, 26 F.3d at 1261-64 (criticizing functional test, but stopping short of rejecting it because administrative agency at issue "would not qualify [as a state court] under any circumstances"); Tool & Die Makers Lodge No. 78 Int'l Ass'n of Machinists v. Gen'l Elec. Co. X-Ray Dept., 170 F.Supp. 945, 949-50 (E.D.Wis.1959) (district court decision that has been characterized as the "genesis" of the functional test).

The Fourth Circuit appeared to endorse the functional test in the context of the federal officer removal statute in Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571, 576 (4th Cir. 1989) (holding that the West Virginia State Bar Committee on Legal Ethics was a "State court" for purposes of removal, and citing favorably to Volkswagen de Puerto Rico, supra, 454 F.2d 38). Consequently, subsequent decisions in this Court have applied the functional test. See, e.g., Woodruff v. Hartford Life Group Ins. Co., 378 F.Supp.2d 546, 548-49 (D.Md.2005) (discussing split over literal test and functional test, but holding removal from Maryland Office of Administrative Hearings improper on other grounds); Gottlieb, supra, 388 F.Supp.2d at 579-82 (applying functional test and holding that Maryland Insurance Administration was not a court from which proceedings could be removed); Harley-Davidson, 217 F.Supp.2d at 676-80 (applying functional test and holding that Maryland Motor Vehicle Administration was not a court from which proceedings could be removed). Notably, however, Woodruff, Gottlieb, and Harley-Davidson all arose under the general removal statute, 28 U.S.C. § 1441, and not the federal officer removal statute.

Under the literal test, the HCADRO obviously is an administrative agency, and not a court. Essentially, plaintiff urges application of the literal test. She cites the Ninth Circuit's decision in Oregon Bureau of Labor, supra, 288 F.3d 414, which adopted the literal test, and argues that the "term `State court' is unambiguous and clear," and does not encompass an executive-branch administrative agency such as the HCADRO. However, as noted, this Court is bound to apply the functional test, in light of the Fourth Circuit's decision in Kolibash.

As Judge Motz explained in Harley-Davidson, the functional test "involves two steps":

Harley-Davidson, 217 F.Supp.2d at 676 (quoting Floeter, supra, 597 F.2d at 1102; internal citations omitted).

As to the first step of the functional test, defendants submit that the "HCADRO's powers and procedures closely mirror those exercised by a court." Def. Memo. at 8. With regard to the second step, they argue that the interest of the federal government and its employees in litigating Westfall Act immunity in federal court outweighs Maryland's interest in compliance with the procedures mandated by the State's Malpractice Claims Act. In particular, defendants suggest that the purpose underpinning the Malpractice Claims Act, which "is to screen malpractice claims, ferret out meritless ones, and, in theory, thereby lower the cost of malpractice insurance and the overall costs of health care," Adler v. Hyman, 334 Md. 568, 575, 640 A.2d 1100, 1103 (1994), is "not implicated" in a malpractice suit against a federally-employed physician. Further, they point out that "federally-employed physicians are immune from liability under the Westfall Act, and generally do not purchase malpractice insurance." Def. Memo. at 13. Accordingly, defendants reason that, because no malpractice insurers will defend or indemnify the physician defendants in this case, "the present case will not affect the availability or cost of malpractice insurance in Maryland, [and] so the state's interest in ensuring the availability of affordable malpractice insurance is not implicated here." Id.

As indicated, in applying the functional test, I must first consider the "`functions, powers, and procedures'" of the HCADRO. Harley-Davidson, 217 F.Supp.2d at 676 (citation omitted). The Malpractice Claims Act establishes the HCADRO as a unit of the executive branch of Maryland's state government. C.J. § 3-2A-03(a). Under the Malpractice Claims Act, a "person having a claim against a health care provider for damage due to a medical injury" must file the claim with the HCADRO. C.J. § 3-2A-04(a)(1)(i). In turn, the director of the HCADRO must cause the claim to be served on the defendant health care provider and, "if the claim is against a physician, the Director shall forward copies of the claim to the State Board of Physicians." C.J. § 3-2A-04(a)(1)(i) to (ii).

Within 90 days after filing a claim, the claimant ordinarily must file a "certificate of a qualified expert," accompanied by a report of the expert, attesting "to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury." C.J. § 3-2A-04(b)(1)(i)(1), (b)(3)(i).11 See, e.g., Carroll, supra, 400 Md. 167, 177-80, 929 A.2d at 25-26. A defendant who disputes liability must file a similar expert certificate and report, "attesting to compliance with standards of care, or that the departure from standards of care is not the proximate cause of the alleged injury." C.J. § 3-2A-04(b)(2)(i). In the case of a claim against a physician, the HCADRO sends copies of the expert certificates and reports to the State Board of Physicians. C.J. § 3-2A-04(b)(6).

After the claimant's expert certificate is filed, the HCADRO and the parties select an arbitration panel from lists maintained by the HCADRO of eligible attorneys, health care providers, and members of the general public.12 Unless the parties choose otherwise, the claim is then heard by the arbitration panel, after a fixed period of time for discovery. See C.J. § 3-2A-05. The arbitration proceedings are governed by the Maryland Rules, which are the rules of procedure generally applicable in Maryland judicial proceedings, see C.J. §§ 3-2A-02(d), 3-2A-05(b)(2), and are subject to the requirements that apply generally to arbitration proceedings under the Maryland Uniform Arbitration Act ("MUAA"), C.J. §§ 3-201 et seq. This includes decision making and exercise of power by a majority of the arbitration panel, see C.J. §§ 3-212, 3-215; an evidentiary hearing held by the arbitration panel, with notice to the parties, see C.J. § 3-213; the rights to be heard, to present evidence, and to cross-examine witnesses, see C.J. § 3-214; the right to representation by an attorney, see C.J. § 3-216; and the authority of the arbitration panel to exercise subpoena power and administer oaths, see C.J. § 3-217. See C.J. § 3-2A-05(b)(1) (incorporating C.J. §§ 3-212 to 3-217 into the Malpractice Claims Act). However, a panel's subpoena can only be enforced by obtaining a court order. See C.J. § 3-217(c). Moreover, the "technical rules of evidence" do not apply. C.J. § 3-214(b).

Arbitration under the Malpractice Claims Act is limited in several important ways, however. First, the parties can opt out of arbitration entirely. At any time between the filing of the claimant's expert certificate and sixty days after all parties have filed expert certificates, any party can waive arbitration unilaterally. See C.J. § 3-2A-06B(a) to (d)(1). Second, at any time before the claim is heard by the panel, the parties can jointly waive arbitration. See C.J. §§ 3-2A-06A(a) to (b), 3-2A-06B(d)(2).13 In either event, within sixty days after arbitration is waived, the plaintiff must file a complaint in the appropriate court, either a Maryland circuit court or the federal court. See C.J. §§ 3-2A-06A(c), 3-2A-06B(f).14 During the ensuing litigation, the parties are permitted, but not required, to engage in a non-binding "neutral case evaluation" to be performed by a panel selected through the HCADRO, in much the same manner as an arbitration. See C.J. §§ 3-2A-06A(f), 3-2A-06B(i).

If the parties do not waive arbitration, an evidentiary proceeding ensues. See C.J. § 3-2A-05. Once the panel reaches a decision and issues an award, any party may reject the arbitration panel's award "for any reason." C.J. § 3-2A-06(a). The party who rejects the award must file a notice of rejection of the award with the panel and the HCADRO, ordinarily within thirty days after the award is issued, see id., and concurrently must "file an action in court to nullify the award." C.J. § 3-2A-06(b)(1). Unlike a proceeding to modify or vacate a garden-variety arbitration award under the MUAA, a court action to nullify an award from an HCADRO arbitration panel is, in essence, a de novo proceeding. The case may be tried to a jury or to the court. C.J. § 3-2A-06(b)(2). However, the panel's award ordinarily "is admissible as evidence in the judicial proceeding" and is "presumed to be correct," with "the burden ... on the party rejecting it to prove that it is not correct." C.J. § 3-2A-06(d). But, if either party contends that the award should be modified or vacated for a reason that is a ground for modification or vacatur of arbitration awards generally under the MUAA, that allegation must be "made by preliminary motion, and shall be determined by the court without a jury prior to trial." C.J. § 3-2A-06(c).15 If the court concludes that the award should be vacated under the MUAA standard, "trial of the case shall proceed as if there had been no award," id., and the arbitrators' award is not admissible in evidence. C.J. § 3-2A-06(d).

On the other hand, if no party rejects the arbitration panel's award, the award becomes "final and binding on the parties." In that circumstance, the director of the HCADRO is authorized to submit the award for confirmation by the appropriate Maryland circuit court, in accordance with the procedure for confirmation of arbitration awards under the MUAA. C.J. § 3-2A-05(i).

In short, the Malpractice Claims Act encourages, but does not mandate, arbitration of medical malpractice claims. Even if a claim is submitted to arbitration, any party may reject the arbitration award "for any reason." C.J. § 3-2A-06(a). The only truly mandatory aspects of the Malpractice Claims Act procedure are submission of the claim to the HCADRO in advance of filing a complaint in a court (which ensures notification to the State Board of Physicians of medical malpractice claims against individual physicians), and, in most cases, each party's submission of a certificate and report of a qualified expert.16

In Gottlieb, supra, 388 F.Supp.2d 574, Judge Bennett utilized the functional test in determining whether a proceeding conducted in the Maryland Office of Administrative Hearings ("OAH"), adjudicating an insurance regulatory dispute filed with the Maryland Insurance Administration ("MIA"), was a proceeding in a "State court" for purposes of the general removal statute. See id. at 575-76.17 Judge Bennett concluded that, although the MIA, acting through the OAH, "utilizes many court-like procedures, it lacks traditional judicial powers and therefore is not the functional equivalent of a court." Gottlieb, 388 F.Supp.2d at 580. He explained, id. at 580-81 (internal citations omitted):

Similarly, in Harley-Davidson, Judge Motz concluded that the Maryland Motor Vehicle Administration was "not the functional equivalent of a court because it does not exercise judicial power." 217 F.Supp.2d at 677. Judge Motz explained, id. at 677-78 (internal citations and footnotes omitted):

In Woodruff, Judge Titus ultimately did not need to determine whether the OAH was a "State court," because removal was improper on other grounds; however, he was skeptical that OAH could be considered a "State court" under the general removal statute. See Woodruff, 378 F.Supp.2d at 548-49.

Like the MIA, the OAH, and the Motor Vehicle Administration, the HCADRO — or, at least, an arbitration panel convened by the HCADRO — has an adjudicatory role. It can issue process and subpoenas and conduct evidentiary hearings. Procedures in the HCADRO are substantially governed by the Maryland Rules, which establish the procedures for all judicial proceedings in Maryland.

The HCADRO is limited in many of same the ways as the agencies in Gottlieb and Harley-Davidson. It cannot enforce its own subpoenas, and its determinations are given effect through confirmation proceedings that must be conducted by a court. The Malpractice Claims Act does not indicate that the HCADRO has any injunctive powers. Indeed, arbitration proceedings in the HCADRO are totally optional — they can be waived unilaterally by either party.

Moreover, even if the parties proceed to arbitration in the HCADRO and the arbitration panel renders an award, any party may reject the award for any reason, and may institute what is essentially a completely de novo medical malpractice proceeding in court. In that event, the only effect of the award is that it may be introduced in evidence and is presumptively correct. Thus, in cases in which the health care provider defendant is the party against whom the arbitration panel ruled, the award has the effect of shifting the burden of proof to the defendant.

In terms of the power and binding effect of its decisions, the HCADRO seems less court-like than the OAH in Gottlieb. The award of an arbitration panel in the HCADRO has significantly less weight than an ALJ's ruling, such as in Gottlieb, because the ALJ's decision is reviewed by a State circuit court under a deferential "substantial evidence" standard. See, e.g., Lawson v. Bowie State Univ., 421 Md. 245, 256, 26 A.3d 866, 873 (2011) (stating that judicial review of an OAH decision is "`limited to determining if there is substantial evidence in the record as a whole to support the [ALJ's] findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law'") (citation omitted); see also Motor Vehicle Admin. v. Loane, 420 Md. 211, 222, 22 A.3d 833, 840 (2011). In contrast, a party who loses before the HCADRO is entitled to a trial de novo.

Yet, in Total Health Care, Judge Smalkin determined that the HCAO, the predecessor to the HCADRO, qualified as a "State court" under the general removal statute. In support of that conclusion, Judge Smalkin stated: "Proceedings before the Health Claims Arbitration Office are judicial in nature and are mandatory, unless waived. Witnesses appear, evidence can be subpoenaed, and rulings are made on questions of law and fact. The award of the panel automatically becomes embodied in a judgment unless exception is taken to it." However, Judge Smalkin did not have the benefit of the subsequent decisions by other judges of this Court in Gottlieb, Harley-Davidson, and Woodruff, in which the Court applied the functional test and did not conclude that state administrative agencies were "State courts" for purposes of the general removal statute. It is also salient that Judge Smalkin considered a version of the statute that has since been superseded. Under the version of the Malpractice Claims Act then in effect, a party had no ability unilaterally to waive arbitration in the HCAO. In my view, this is a significant difference in the power and authority of the tribunal.

I need not determine, however, whether Judge Smalkin was correct in determining that the HCADRO's predecessor was a "State court" for purposes of the general removal statute, nor do I need to determine whether the HCADRO qualifies as a "State court" under that statute. This is because the case sub judice was removed under the federal officer removal statute and the Westfall Act, rather than the general removal statute. As I have noted, the functional test encompasses two steps. The second step, which has been characterized as the "`more critical inquiry,'" is an "evaluation of the respective state and federal interests in the dispute." Harley-Davidson, 217 F.Supp.2d at 679 (citation omitted). As I shall explain, the Fourth Circuit's decision in Kolibash compels the conclusion that the removal statute under which a given case has been removed has critical importance for the second step of the functional test.

In Kolibash, the Fourth Circuit concluded that a West Virginia State Bar disciplinary proceeding against the United States Attorney for the Northern District of West Virginia could be removed to federal court under the federal officer removal statute. See Kolibash, 872 F.2d at 577. There, the State disciplinary body initiated proceedings against the U.S. Attorney, based on his alleged failure adequately to supervise an Assistant United States Attorney working under him. The Assistant was accused of taking prosecutorial actions in a federal criminal proceeding involving a former client from the period when the prosecutor was in private practice. Id. at 572. The U.S. Attorney removed the proceeding to federal district court, but the district court remanded, "declaring that `licensure of professionals is basically a state function,'" and that "members of the State Bar `who serve as federal officials are no less subject to the requirements of the Code of Professional Responsibility that is the cornerstone of licensure to practice the profession' in West Virginia." Id. (quoting district court). The Fourth Circuit held that it had authority to review the district court's remand order, and reversed. Id. at 573.

Applying the functional test, the Kolibash Court held that the West Virginia State Bar Committee on Legal Ethics constituted a "State court" for purposes of 28 U.S.C. § 1442. Of relevance here, the Court described the functions of the Committee on Legal Ethics, id. at 576:

In the Kolibash Court's view, these court-like features of the Committee were sufficient to bring it within the scope of the federal officer removal statute, in light of the strong federal interests at stake, which came to bear at the second step of the functional test. To be sure, the Court also noted that the Committee on Legal Ethics was "defined as an instrumentality of the West Virginia Supreme Court of Appeals." Id. But, the agency's placement in the judicial branch versus the executive branch did not seem to be determinative in the Court's analysis.

Rather, applying the second step of the functional test, the Kolibash Court emphasized the important federal interest at stake. The Court explained: "The central concern of the [federal officer] removal statute is that a federal officer or agent shall not be forced to answer for acts performed under color of his office in anything but a federal forum." Id. It reasoned that the "underlying rationale" of 28 U.S.C. § 1442 is that "`Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum.'" Id. at 574 (quoting Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969)). Weighing the strong federal interest underlying the federal officer removal statute against the competing state interest in regulation of licensed attorneys, the Kolibash Court said: "Regulation of the legal profession admittedly implicates significant state interests, but the federal interest in protecting federal officials in the performance of their federal duties is paramount." Kolibash, 872 F.2d at 575. Given the strong federal interest in the provision of a federal forum, the Court held: "If a state investigative body operates in an adjudicatory manner, and if a federal officer or his agent is subject to its process, the statutory requirements of § 1442(a)(1) are satisfied." Id. at 576.

The HCADRO's adjudicatory powers are, in essence, subject to the agreement of the parties to utilize its powers. Those powers, if utilized, are similar to those of Maryland agencies that have been held not to be State courts for purposes of the general removal statute. But, Kolibash teaches that, in the context of the federal officer removal statute, the powerful interest in ensuring that "a federal officer or agent shall not be forced to answer for acts performed under color of his office in anything but a federal forum" strongly tilts in favor of recognizing an adjudicatory state agency as a State court. Id.

As I see it, Kolibash and the case sub judice are distinguishable from Gottlieb, Harley-Davidson, and other cases that have determined that a state administrative agency was not a "State court" under the general removal statute. Gottlieb involved a dispute between an insurance company and its Maryland customers regarding the insurance company's alleged noncompliance with state insurance law. See Gottlieb, 388 F.Supp.2d at 575. The parties were private individuals and a private insurance company, and removal was predicated on diversity jurisdiction under the general removal statute. Id. Applying the second step of the functional test, Judge Bennett described the state interest in such a dispute as "substantial," and observed that, in contrast, "the federal interest in the underlying dispute is slight. No issue of federal law is involved." Id. at 582. Similarly, in Harley-Davidson, in which diversity was also the basis for removal, Judge Motz said: "The sole federal interest at stake in this dispute is in providing a forum to diverse parties. Such an interest is inadequate in light of the state's substantial interest in administering a state program and preserving the oversight role of a state agency." Harley-Davidson, 217 F.Supp.2d at 680.

In contrast to Gottlieb and Harley-Davidson, removal in this case, as in Kolibash, is based on the federal officer removal statute, which inherently implicates overriding federal interests. By definition, a powerful interest in provision of a federal forum is present in every case arising under 28 U.S.C. § 1442. I do not subscribe to the Government's view that the purposes of the Malpractice Claims Act are "not implicated" in a malpractice suit against a federally-employed physician.18 However, the State interests served by the HCADRO procedure must yield to the significant federal interest in provision of a federal forum for the litigation of claims against federal employees sued for acts taken under color of their office. If West Virginia's interest in attorney discipline and regulation of members of its state bar was insufficient, in Kolibash, to outweigh the federal interests served by 28 U.S.C. § 1442, Maryland's interest in promoting arbitration of medical malpractice claims surely cannot outweigh those federal interests either.

In sum, although the HCADRO is obviously not a court, it has the minimum of court-like functions that suffice to render an agency a "State court" for purposes of the federal officer removal statute under Kolibash: it "operates in an adjudicatory manner, and ... a federal officer or his agent is subject to its process." Kolibash, 872 F.2d at 576. Like the Committee on Legal Ethics in Kolibash, the HCADRO is "authorized to hold evidentiary hearings, subpoena witnesses, [and] take testimony under oath in an adversary proceeding." Id. Because the HCADRO possesses those attributes, and because the interests served by the federal officer removal statute outweigh Maryland's interests in providing a state administrative forum, "the statutory requirements of § 1442(a)(1) are satisfied." Id.

I realize that the foregoing analysis logically implies that a given state agency could be a "State court" under the federal officer removal statute, and not a "State court" under the general removal statute. It might seem anomalous that Congress could have intended the term "State court" to have different meanings in adjacent provisions of the United States Code. But if that result seems unusual, it is nonetheless inherent in application of the functional test, which the Fourth Circuit adopted in Kolibash as controlling circuit precedent. In my view, Kolibash compels the conclusion that the HCADRO qualifies as a "State court" for purposes of 28 U.S.C. § 1442.19 Accordingly, the Court possesses subject matter jurisdiction in this case.