O'Brien v. United States

United States Court of Appeals
For the First Circuit
No. 22-1014
BRAD O'BRIEN, Personal Representative of the Estate of Melissa
Allen,
Plaintiff, Appellant,
v.
UNITED STATES ET AL.,
Defendants, Appellees,
FERNANDO ROCA, MD,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and McElroy,* District Judge.
Adam R. Satin, with whom Andrew C. Meyer, Jr. and Lubin &
Meyer, P.C. were on brief, for appellant.
Dana Kaersvang, Trial Attorney, Civil Division, United States
Department of Justice, with whom Rachael S. Rollins, United States
Attorney, and Erin E. Brizius, Assistant United States Attorney,
were on brief, for appellee United States.
* Of the District of Rhode Island, sitting by designation.
December 19, 2022
SELYA, Circuit Judge. In this case, the plaintiff
brought a wrongful death action in state court. He alleged medical
malpractice against (inter alia) a physician who worked for a
federally funded health center. The patient (the plaintiff's
decedent) was unaffiliated with the health center. The United
States removed the action to federal court and sought to substitute
itself as a defendant in the physician's place and stead. To
justify removal and substitution, the United States invited the
district court to invoke the provisions of the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (the Westfall
Act), 28 U.S.C. § 2679. The district court accepted the
government's invitation, invoked the Westfall Act, substituted the
United States for the physician, and subsequently granted the
government's motion to dismiss the plaintiff's amended complaint
for failure to state a claim upon which relief could be granted.
The plaintiff appealed. In this court, the government
conceded it had led the district court into a dead end: it
repudiated its earlier reliance on the Westfall Act and, instead,
attempted to salvage the substitution order under a provision of
the Public Health Service Act (PHSA), 42 U.S.C. § 233. This shift
in direction brought new issues into play and left gaps in the
evidentiary record. Those gaps must be filled by further
proceedings in the district court, which can then resolve the new
issues that have emerged as a result of the government's about-
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face. We therefore vacate the substitution order, vacate the
partial final judgment entered below, and remand to the district
court for further proceedings consistent with this opinion.
I
We begin with the relevant facts. Because this appeal
follows the allowance of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), we draw those facts from the plaintiff's
amended complaint and other materials in the record that may be
considered at the motion-to-dismiss stage. See Aguilar v. U.S.
Immigr. & Customs Enf't, 510 F.3d 1, 8 (1st Cir. 2007); Banco
Santander de P.R. v. Lopez-Stubbe (In re Colonial Mortg. Bankers
Corp.), 324 F.3d 12, 14-16 (1st Cir. 2003); Beddall v. State St.
Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998).
A
Plaintiff-appellant Brad O'Brien is the surviving
partner of Melissa Allen and the personal representative of her
estate. The sequence of events leading up to Allen's demise is
largely undisputed. On July 26, 2016, Allen suffered multiple
seizures at her home. She was brought to Lowell General Hospital
(the Hospital) in Lowell, Massachusetts, and admitted at 5:00 a.m.
There, emergency department staff found that Allen was seven months
pregnant and suffering from severe hypertension.1 Dr. Fernando
1 According to the undisputed facts, neither Allen nor anyone
else had known of her pregnancy until then.
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Roca, an obstetrician who was present in the Hospital, was summoned
to consult. At 5:22 a.m., Allen was transferred to the labor and
delivery unit, where Dr. Roca oversaw her care. While there, Allen
suffered another seizure. At 6:54 a.m., Dr. Roca decided that it
was necessary to perform a cesarean section, and a baby girl was
delivered approximately ten minutes later.
Following the birth of her baby, Allen was moved to the
intensive care unit. By that time, she was unresponsive, her
pupils were unequal and non-reactive, and she had no reflexes. A
brain scan revealed "devastating neurological injury." Allen was
then flown by helicopter to a tertiary care hospital in Boston,
where she died eleven days later. The causes of death were listed
as "intracranial hemorrhage and eclampsia."
B
Inasmuch as this case started with a state-court suit
against Dr. Roca, we add some context about his involvement. Even
though he provided care to Allen at the Hospital, Dr. Roca worked
for Lowell Community Health Center (the Health Center), an entity
that receives federal grant funds under 42 U.S.C. § 254b.
As of a date no later than January 1, 2015, the Health
Center was deemed to be a Public Health Service (PHS) "employee"
for purposes of 42 U.S.C. § 233. Its "deemed" status was renewed
periodically and was in effect at the time of the events giving
rise to the plaintiff's complaint.
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As a Health Center employee, Dr. Roca was purportedly
"permitted," at least "[i]n case[s] of emergency, . . . to do
everything possible to save the patient's life or to save the
patient from serious harm." Separately, Dr. Roca's employment
contract with the Health Center required him to "maintain
[clinical] privileges at a hospital within a reasonable vicinity
of [the Health Center]" — a radius that included the Hospital.
Moreover, the contract required that he comply with "all rules,
regulations and by-laws promulgated by [the Health Center] and
such other hospitals at which [he] ha[d] clinical privileges."
In an apparent effort to satisfy the first requirement,
Dr. Roca applied for — and received — clinical privileges at the
Hospital. To satisfy the second requirement, Dr. Roca needed to
comply with "all rules, regulations and by-laws" of both the Health
Center and the Hospital. The record does not contain any compendia
of these rules, regulations, and by-laws — but it does contain
evidence that the Health Center required Dr. Roca to participate
in the Health Center's "departmental call schedule," which
included responsibility for "addressing all [Health Center]
patient care responsibilities when such patients . . . present[ed]
at [the Hospital]." In addition, there is evidence that the Health
Center allowed Dr. Roca to set aside "[o]ne day of the week or a
portion thereof" to perform "operative procedures" at the
Hospital.
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The record is silent as to the capacity in which Dr.
Roca came to attend to Allen's care in the Hospital. We do know,
however, that Allen was not a Health Center patient.
C
This brings us to the travel of the case. On June 20,
2019, the plaintiff — on behalf of Allen's estate — brought suit
in a Massachusetts state court. He alleged, among other things,
that the Hospital and Dr. Roca negligently caused Allen's death.
In due course, the Department of Health and Human
Services (HHS) notified the Attorney General's representative, the
United States Attorney for the District of Massachusetts, that a
claim had been brought "against [Dr. Roca], a former employee of
[the Health Center]." The government subsequently appeared in the
state court "for the limited purpose of notifying the court
regarding whether or not the Secretary of HHS has concluded that
[Dr. Roca] was 'deemed' to be an 'employee of the Public Health
Service' with respect to the actions or omissions that are the
subject of this civil action." See 42 U.S.C. § 233(l)(1). The
government represented that "HHS ha[d] not yet provided its full
report as to whether [Dr. Roca] has deemed status under 42 U.S.C.
§§ 233(g) and (h) [and] whether that extends to the acts or
omissions that are the subject of this civil action." See id.Nor had the Attorney General yet "been provided with sufficient
information" to determine "whether the acts alleged fall within
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the scope of 42 U.S.C. § 233(a), the applicable provisions of the
[Federally Supported Health Centers Assistance Act], and/or were
otherwise within the scope of the entity or individual's 'deemed'
employment." The government assured the court that the Attorney
General would make such a determination "[o]nce HHS has completed
its review and provided its report." The record does not contain
anything indicating whether the HHS review was ever completed or
whether such a report was ever compiled.
On March 23, 2021, the plaintiff filed an amended
complaint, adding claims and defendants. As relevant here, the
amended complaint alleged eight counts against Dr. Roca for, among
other things, wrongful death. All eight counts implicated Dr.
Roca's allegedly negligent treatment of Allen at the Hospital and
sought damages for that alleged malpractice.
Three weeks after the amended complaint was filed, the
government removed the case to the federal district court pursuant
to 42 U.S.C. § 233(c). In its notice of removal, the government
represented that Dr. Roca "was at all relevant times employed by"
the Health Center and "acting within the scope of such employment."
See 42 U.S.C. § 233(c). The plaintiff did not challenge the
propriety of the removal through a motion for remand. See id.2
2 Given the absence of any such challenge, we take no view as
to whether 42 U.S.C. § 233(c) provides an independent basis for
removal of a case filed in state court against an entity receiving
funds under 42 U.S.C. § 254b or any employee of such an entity.
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The government then moved to substitute itself as the
named defendant in place of Dr. Roca. The notice of substitution
represented that "Dr. Roca was an employee of [the Health Center]
during the time alleged in the Amended Complaint" and that "[the
Health Center] and its employees were deemed eligible for Federal
Tort Claims Act malpractice coverage effective January 1, 2015."
Thus, the government concluded:
Dr. Roca was, at the time of the acts alleged
in th[e] Amended Complaint, acting in the
course and scope of his employment pursuant to
the Federally Supported Health Care Centers
Assistance Act of 1995 (Pub. L. 102-501) and
42 U.S.C. § 233(a). As such, any claims for
negligence related to alleged acts or
omissions of Dr. Roca fall within the [Federal
Tort Claims Act], and the exclusive remedy for
the plaintiff in this case is against the
United States of America.
In further support of substitution, the government filed
a certification signed by the Acting United States Attorney for
the District of Massachusetts. This certification neither
mentioned nor relied upon 42 U.S.C. § 233. Rather — citing the
Westfall Act, 28 U.S.C. § 2679 — the Acting United States Attorney
certified that:
Compare Celestine v. Mount Vernon Neighborhood Health Ctr., 403
F.3d 76, 81-82 (2d Cir. 2005) (holding that 42 U.S.C. § 233(c)
provides an independent basis for removal under such
circumstances), with El Rio Santa Cruz Neighborhood Health Ctr.,
Inc. v. U.S. Dep't of Health & Hum. Servs., 396 F.3d 1265, 1268
(D.C. Cir. 2005) (stating that 42 U.S.C. § 233(l) details the "two
circumstances in which [such a] case can be removed" to a federal
district court).
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On the basis of the information now available
with respect to the incidents alleged in the
Amended Complaint, defendant [Dr. Roca] was
acting at the time of the incidents under
circumstances in which Congress has provided
by statute that the remedy provided by the
Federal Tort Claims Act is made the exclusive
remedy.
The district court granted the government's motion for
substitution, noting that, pursuant to the Westfall Act, "the
Acting United States Attorney has certified that [Dr. Roca] was
acting within the scope of his employment for purposes of the
Federal Tort Claims Act at the time of the incidents giving rise
to" the amended complaint. The government then moved to dismiss
the eight counts against it for lack of subject matter jurisdiction
and failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (6).
The government argued that the court lacked subject matter
jurisdiction because the plaintiff had failed to exhaust
administrative remedies as required by the Federal Tort Claims Act
(FTCA). See 28 U.S.C. § 2675(a). In the alternative, the
government sought dismissal on statute-of-limitations grounds.
See id. § 2401(b). The plaintiff opposed the motion, arguing in
part that the government should not have been substituted for Dr.
Roca.
The district court found the plaintiff's opposition
unpersuasive and granted the government's motion. See O'Brien v.
Lowell Gen. Hosp., No. 21-10621, 2021 WL 5111857, at *5 (D. Mass.
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Nov. 3, 2021). The court rejected the plaintiff's contention that
the substitution of the United States for Dr. Roca was improper.
See id. at *2-3. It ruled that — contrary to the plaintiff's
assertion — "Dr. Roca acted within the scope of his federal
employment at the time of the events giving rise to" the
plaintiff's claims. Id. at *3. The court reasoned, albeit on an
incomplete record, that "[a]s a condition of his contract with his
employer, [the Health Center], a federally funded facility, Dr.
Roca was required to maintain privileges at the Hospital and to
provide care in emergency situations, i.e. to provide the care at
issue here." Id. In support, the court stated that Dr. Roca's
"actions were taken pursuant to his contractual obligations and
were meant to serve his employer." Id. The court then held that
the substitution of the United States for Dr. Roca was warranted
under the Westfall Act and that the plaintiff's claims therefore
arose under the FTCA. See id.The court proceeded to dismiss the eight counts
originally brought against Dr. Roca on statute-of-limitations
grounds. See id. at *4-5. Because the United States had been
substituted for Dr. Roca, the court applied the two-year statute
of limitations applicable to claims arising under the FTCA, see
id. at *4; see also 28 U.S.C. § 2401(b), rather than the three-
year statute of limitations applicable to medical malpractice
claims arising under Massachusetts law, see Mass. Gen. Laws ch.
- 11 -
260, § 4. And having found the plaintiff's claims to be time-
barred, the court chose to bypass the government's exhaustion-of-
remedies defense. See O'Brien, 2021 WL 5111857, at *3-5.
The plaintiff filed a notice of appeal, which was
premature because the case was still pending against the Hospital
and other defendants. We held the appeal in abeyance while the
plaintiff sought and received a partial final judgment. See Fed.
R. Civ. P. 54(b). Based on the district court's Rule 54(b)
certification, see O'Brien v. Lowell Gen. Hosp., 594 F. Supp. 3d
161, 162 (D. Mass. 2022), we allowed the appeal to proceed.
II
On appeal, this case has taken on new dimensions. The
plaintiff challenges both the order allowing substitution and the
order allowing the government's motion to dismiss. With respect
to the first of these challenges, the plaintiff argues that the
United States should not have been permitted to substitute itself
for Dr. Roca under the Westfall Act because Dr. Roca was "acting
outside of the scope of his employment at the time" of the events
giving rise to the suit. Instead of meeting this argument head-
on, the government now concedes that the Westfall Act's
substitution provisions do not apply in this case. But although
the government confesses error in this regard, it asserts that the
error was harmless: substitution was proper, it suggests, under
the PHSA, specifically, 42 U.S.C. § 233.
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Even though the government sketched the framework of
this argument in its reply memorandum on the motion to dismiss, it
neither developed the argument in the district court nor relied
upon it at that time. In view of the government's changed
position, we directed it to provide additional information
regarding whether the requirements of 42 U.S.C. § 233 had been
satisfied. The government responded in the affirmative, insisting
that the services rendered by Dr. Roca fit within parameters
previously determined by the Secretary of HHS (the Secretary) to
come within the reach of section 233. Thus — the government
submitted — Dr. Roca qualified for substitution and FTCA coverage
in this case.
III
"We review de novo a district court's allowance of a
motion to dismiss for failure to state a claim under Rule
12(b)(6)." Rivera v. Kress Stores of P.R., Inc., 30 F.4th 98, 102
(1st Cir. 2022). So, too, we review de novo a district court's
grant of a motion to substitute the United States in lieu of a
named defendant. See Kearns v. United States, 23 F.4th 807, 811
(8th Cir. 2022); McIntyre v. United States, 545 F.3d 27, 40 (1st
Cir. 2008). In conducting this tamisage, we are not wedded to the
district court's reasoning but, rather, may resolve the appeal on
any basis that is apparent from the record. See Alston v. Spiegel,
988 F.3d 564, 571 (1st Cir. 2021).
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A
Although the government has abandoned its reliance on
the Westfall Act, 28 U.S.C. § 2679(d), our analysis necessarily
begins with an explanation of the mechanics of that statute's
substitution provisions and why those provisions do not apply in
this case. The Westfall Act provides, in relevant part, that
"[w]hen a federal employee is sued for wrongful or negligent
conduct," the Attorney General may "certify that the employee 'was
acting within the scope of his office or employment at the time of
the incident out of which the claim arose.'" Osborn v. Haley, 549
U.S. 225, 229-30 (2007) (quoting 28 U.S.C. § 2679(d)(1), (2)).
When the Attorney General so certifies, "the employee is dismissed
from the action, . . . the United States is substituted as
defendant in place of the employee," and "[t]he litigation is
thereafter governed by the [FTCA]." Id. at 230.
Here, the Attorney General, through the Acting United
States Attorney for the District of Massachusetts, certified —
pursuant to the Westfall Act — that Dr. Roca was acting within the
scope of his employment when he administered care to Allen; and
the district court, in reliance upon that Westfall Act
certification, allowed the substitution of the United States for
Dr. Roca. The district court later stated that substitution was
appropriate because "Dr. Roca's treatment of [the] decedent was an
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act within the scope of his [federal] employment."3 O'Brien, 2021
WL 5111857, at *3.
The tectonic plate shifted, though, when the government
confessed error in this court. It acknowledged that —
notwithstanding its previous filings — the Westfall Act does not
apply at all to the issue of substitution in this case because Dr.
Roca was not a federal employee. See Thomas v. Phoebe Putney
Health Sys., Inc., 972 F.3d 1195, 1203 (11th Cir. 2020) (explaining
that reliance on Westfall Act was "mistaken" in case brought
against employees of federally funded health center "because
§ 2679(d) applies only to 'employees of the government'"
(alteration omitted)); see also Vélez-Díaz v. Vega-Irizarry, 421
F.3d 71, 75 (1st Cir. 2005) (explaining that Westfall Act allows
for substitution of United States when "a federal employee [is]
named as a defendant" (quoting Lyons v. Brown, 158 F.3d 605, 606
(1st Cir. 1998))).4 But in an effort to snatch victory from the
3 The district court hinged its analysis of the substitution
question on 28 U.S.C. § 2679(d)(1), which applies to cases
originally brought in a federal court. See O'Brien, 2021 WL
5111857, at *2-3. The court's analysis should have proceeded under
28 U.S.C. § 2679(d)(2), which applies to cases commenced in a state
court. Here, however, that bevue is beside the point.
4 Our decision in Gonzalez v. United States, 284 F.3d 281 (1st
Cir. 2002), as corrected (May 8, 2002), does not throw shade on
this confession of error. Although Gonzalez may be read to suggest
that the Westfall Act allows the government to substitute itself
for a named defendant when a case is brought against a PHS
employee, see id. at 286, the substitution decision there was not
challenged on appeal, and we had no reason to address whether 28
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jaws of defeat, the government offered a new rationale for
substitution: it said that a different statute, the PHSA, 42
U.S.C. § 233, authorizes substitution where, as here, a suit is
brought against a "deemed" employee of the PHS. See Thomas, 972
F.3d at 1198 (explaining that the Westfall Act and 42 U.S.C. § 233establish two "separate statutory scheme[s]" for substitution).
The differences between the Westfall Act and the
relevant portions of the PHSA are real, not simply technical. The
Westfall Act applies generally to federal employees acting within
the scope of their employment. See Vélez-Díaz, 421 F.3d at 75.
The PHSA, however, applies to private employees, not government
actors; and to obtain its protection with respect to tort claims,
an individual must not only be acting within the scope of his
employment but also must check a series of other boxes. The
government now contends that its substitution for Dr. Roca was
U.S.C. § 2679(d)(2) provided a proper basis for substitution.
Thus, the question remains open. See United States v. DiPina, 178
F.3d 68, 73 (1st Cir. 1999) (explaining that if, "in a prior
decision, we have not considered an issue directly and assessed
the arguments of parties with an interest in its resolution, that
[prior] decision does not bind us in a subsequent case where the
issue is adequately presented and squarely before us"); E.E.O.C.
v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986) (noting that "an issue
of law must have been heard and decided" to constitute binding
precedent).
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appropriate under the PHSA and urges us to affirm the substitution
on that alternate ground.5
B
We pause to put the government's new contention into
context. The PHSA protects officers and employees of the PHS from
personal liability "for damage for personal injury, including
death, resulting from the performance of medical, surgical,
dental, or related functions" while acting within the scope of
their employment. 42 U.S.C. § 233(a); see Hui v. Castaneda, 559
U.S. 799, 806 (2010) (holding that PHS officers and employees are
"absolute[ly] immun[e] . . . for actions arising out of the
performance of medical or related functions within the scope of
their employment"). In lieu of personal liability, the statute
makes available a tort action against the United States under the
FTCA as the "exclusive" remedy for certain "act[s] or omission[s]"
on the part of PHS employees resulting in personal injury or death.
42 U.S.C. § 233(a).
5 In his response to the government's supplemental filing,
the plaintiff asserts that the government has waived this argument.
We reject this assertion. Waiver doctrine is less readily applied
to bar new arguments offered on behalf of an appellee. Cf. Alston,
988 F.3d at 571 (noting that court of appeals "may affirm an order
of dismissal on any ground made manifest by the record"). And in
any event, we have discretion to overlook waiver in the interests
of justice. See United States v. Tkhilaishvili, 926 F.3d 1, 19
(1st Cir. 2019); Correa v. Hosp. S.F., 69 F.3d 1184, 1196 (1st
Cir. 1995). We think that the interests of justice counsel in
favor of overlooking any waiver here.
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When an action is commenced against a PHS employee for
personal injury or death resulting from the performance of medical
functions rendered in the course of his employment, Congress has
tasked the Attorney General with defending the action. See id.§ 233(a)-(b), (d). And when such an action is commenced against
a PHS employee in a state court, the PHSA mandates removal to the
federal district court "[u]pon a certification by 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." Id. § 233(c). The United States is then substituted as
the defendant, and the case proceeds against the United States
under the FTCA. See id. § 233(a), (c). If, however, the "district
court determine[s] on a hearing on a motion to remand" that a
remedy against the United States under section 233(a) is
inappropriate, "the case shall be remanded to the State Court."
Id. § 233(c).6
6 In this respect, the PHSA's removal and substitution
provisions differ from those of the Westfall Act. Under the
Westfall Act, "the Attorney General's [scope of employment]
certification 'is conclusive for purposes of removal.'" Alexander
v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 896 (7th Cir. 2007)
(quoting 28 U.S.C. § 2679(d)(2)). Even if the Attorney General's
certification is erroneous, "district courts [have] no authority
to return cases to state courts." Osborn, 549 U.S. at 241. The
upshot is that "[f]or purposes of establishing a forum to
adjudicate the case . . . § 2679(d)(2) renders the Attorney
General's certification dispositive." Id. at 242. The same is
not true under the PHSA: 42 U.S.C. § 233(c) "expressly
contemplates" the possibility of remand and requires federal
district courts to send cases back to state court if they determine
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The situation is substantially similar but subtly
different for certain federally funded health centers and their
employees. Under the Federally Supported Health Centers
Assistance Act of 1995 (FSHCAA), public or non-profit private
health centers receiving federal funds under 42 U.S.C. § 254b — as
well as officers, board members, employees, and certain
contractors of such entities — are eligible for the same PHSA and
FTCA protections as are enjoyed by PHS employees.7 See id.
§ 233(g)(1)(A). To gain this prophylaxis, a federally funded
health center or any particular individual associated with it must
be "deemed to be an employee" of the PHS. Id. Health centers and
affiliated individuals (such as employees) that are so "deemed"
are — subject to certain conditions — eligible for FTCA protection
"to the same extent" as PHS employees. Id. § 233(g)(1)(A)-(B).
This means, among other things, that if an action is
brought in state court against a "deemed" PHS employee, the FSHCAA
provides mechanisms both for removing the case to the federal
district court and for substituting the United States as the named
defendant in the "deemed" employee's stead. One such mechanism
that a "remedy by suit against the United States is not available."
Thomas, 972 F.3d at 1203.
Federally funded health centers are health centers that
7
receive grants under 42 U.S.C. § 254b. Such health centers are
located in medically underserved areas and/or serve medically
underserved populations. See Consejo de Salud de la Comunidad de
la Playa de Ponce, Inc. v. González-Feliciano, 695 F.3d 83, 86 n.1
(1st Cir. 2012).
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directs that, within fifteen days of being notified of such a case,
the Attorney General may appear in state court and "advise such
court as to whether the Secretary has determined" that the
defendant "is deemed to be an employee of the [PHS] . . . with
respect to the actions or omissions that are the subject of [the]
civil action or proceeding." Id. § 233(l)(1). If the Attorney
General advises the court that the defendant has been "deemed" a
PHS employee "with respect to the actions or omissions" giving
rise to the plaintiff's claims, removal is in order. Id.; see id.
§ 233(c). And once a case has been removed to the federal court,
the United States may move for substitution so that the case will
proceed under the FTCA. See id. § 233(a), (c); see also Thomas,
972 F.3d at 1198.
The authority to deem an entity or affiliated individual
an employee of the PHS — both generally and for purposes of a
specific lawsuit — rests with the Secretary. See 42 U.S.C.
§ 233(g)(1). To obtain deemed status, a health center must submit
an application to the Secretary attesting that it and/or particular
officers, board members, employees, or contractors satisfy certain
statutory criteria. See id. § 233(g)(1)(D); see also id.
§§ 233(g)(1)(B)-(C), (h). The Secretary must make a "deeming"
determination within thirty days of receipt of the application.
See id. § 233(g)(1)(E). Once the Secretary has determined that an
entity or individual is deemed to be an employee of the PHS, that
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determination goes into effect for "a calendar year that begins
during a fiscal year." Id. § 233(g)(1)(A); § 233(k). The
Secretary's "deeming" determination is then renewable on an annual
basis, provided that the entity submits yearly applications
verifying that it and/or its officers, board members, employees,
or contractors continue to meet the requisite statutory criteria.
See id. § 233(g)(1)(D); see also Agyin v. Razmzan, 986 F.3d 168,
172 (2d Cir. 2021); Thomas, 972 F.3d at 1197 n.1.
We hasten to add that the Secretary's annual "deeming"
determination does not conclusively establish PHSA and FTCA
coverage with respect to a particular lawsuit when — as in this
case — an action is brought against a physician affiliated with a
federally funded health center. Rather, coverage hinges on the
circumstances in which care has been provided. See 42 U.S.C.
§ 233(g)(1)(B)-(C). With respect to patients of the health center,
coverage is straightforward: the Secretary's "deeming"
determination "appl[ies] with respect to services provided" to
"all patients of the entity." Id. § 233(g)(1)(B)(i).
The question of coverage is more nuanced where, as here,
care is provided to an individual who is not a health center
patient. In that circumstance, the "deeming of" an entity or
individual as an employee of the PHS only applies "if the Secretary
determines, after reviewing an application submitted under
subparagraph (D), that the provision of the services to such
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individual[]" meets at least one of three conditions. Id.
§ 233(g)(1)(B)-(C). Specifically, the provision of such services
must either:
(i) benefit[] patients of the entity and
general populations that could be served by
the entity through community-wide
intervention efforts within the communities
served by such entity;
(ii) facilitate[] the provision of services to
patients of the entity; or
(iii) [be] otherwise required under an
employment contract (or similar arrangement)
between the entity and [the particular]
officer, governing board member, employee, or
contractor of the entity.
Id. § 233(g)(1)(C); see 42 C.F.R. § 6.6(d). Under subparagraph
(D), "[t]he Secretary may not . . . deem an entity or an officer,
governing board member, employee, or contractor of the entity to
be an employee of the [PHS] . . . , and may not apply such deeming
to services" provided to persons who are not patients of the
entity, "unless the entity has submitted an application for such
deeming to the Secretary." 42 U.S.C. § 233(g)(1)(D). Congress
has afforded the Secretary the power to prescribe the "form" and
"manner" of such applications. Id.HHS regulations reaffirm that FTCA coverage extends to
"services provided to individuals who are not patients of a covered
entity . . . only if the Secretary determines that" at least one
of the three conditions listed at 42 U.S.C. § 233(g)(1)(C) has
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been satisfied. 42 C.F.R. § 6.6(d). The Secretary has crafted
two methods for making that determination. See id. § 6.6(e)(4).
The first method allows a health center or affiliated individual
to submit an "application . . . seek[ing] a particularized
determination" that coverage extends to the care at issue. Id.
The second method involves a predetermination by the Secretary
that FTCA coverage extends in certain circumstances without any
need for a "specific application" on the part of the entity or
affiliated individual. Id. To qualify for this predetermined
coverage, the care rendered or the "activity or arrangement in
question" must "fit[] squarely" into one of a number of scenarios
described in the regulation. Id.; see id. § 6.6(e)(4)(i)-(iv)
(describing scenarios). If there is no square fit, the party
seeking coverage must attempt to obtain "a particularized
determination" through the first method. Id. § 6.6(e)(4).
C
With this backdrop in place, we return to the case at
hand. As we have said, the government has reinvented its theory
of substitution: it has forgone its earlier reliance on the
Westfall Act and now relies instead on the PHSA. Although the
government concedes that neither the Health Center nor Dr. Roca
sought a particularized determination that the care he provided to
Allen triggered FTCA coverage, it nonetheless claims that
substitution is appropriate under the PHSA because the care
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rendered by Dr. Roca to Allen fits squarely within one or more of
the scenarios described in 42 C.F.R. § 6.6(e)(4)(i)-(iv). In
particular, the government urges us to find that the care provided
by Dr. Roca fits squarely within the scenarios described in
subsections (ii) and (iv).
The plaintiff sees things differently. He notes that
the Secretary has never made a particularized "deeming"
determination regarding Dr. Roca; that the existing record does
not support the government's claim that the regulation applies;
and that, in all events, Dr. Roca should not be regarded as acting
within the scope of federal employment. He also questions whether
the Secretary has the authority to predetermine that the scenarios
listed in 42 C.F.R. § 6.6(e) automatically qualify a "deemed" PHS
employee for coverage under the FTCA. In the plaintiff's words,
that type of "blanket deem[ing]" contravenes the text of 42 U.S.C.
§ 233(g)(1)(D), which prohibits the Secretary from "apply[ing]" a
deeming decision to cover services provided to non-patients of a
health center "unless the [health center] has submitted an
application for such deeming to the Secretary." 42 U.S.C.
§ 233(g)(1)(D). The statute, on the plaintiff's reading, does not
give the Secretary the authority to "waive" the requirement that
applications be submitted and considered on a "case-by-case"
basis. For all of these reasons, he claims that the substitution
of the United States for Dr. Roca was improvident.
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IV
The answer to the question of whether Dr. Roca's care
fits squarely within one or more of the described scenarios is
inscrutable on the existing record.8 The government principally
relies on the scenario found at 42 C.F.R. § 6.6(e)(4)(ii). Under
this scenario, a "deemed" PHS employee qualifies for FTCA coverage
when providing periodic on-call or emergency room coverage at a
hospital to non-health center patients if that "[p]eriodic
hospital call or hospital emergency room coverage is required by
the hospital as a condition for obtaining hospital admitting
privileges." 42 C.F.R. § 6.6(e)(4)(ii). To fit within this
scenario, "[t]here must also be documentation for the particular
health care provider [showing] that th[e] coverage is a condition
of employment at the health center." Id.As a fallback, the government cites to the scenario
limned in 42 C.F.R. § 6.6(e)(4)(iv). This scenario applies to
"[c]overage [provided] in [c]ertain [i]ndividual [e]mergenc[y]"
situations. To fit within this scenario, a number of criteria
must be satisfied. First, a "health center provider" must be
"providing or undertaking to provide covered services to [either]
a health center patient within the approved scope of project of
8 For purposes of this discussion, we do not address the
plaintiff's overarching challenge to the legality of certain of
the Secretary's regulations.
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the [health] center, or to an individual who is not a patient of
the health center under the conditions set forth in [42 C.F.R.
§ 6.6]." Id. § 6.6(e)(4)(iv). Second, while providing or
undertaking to provide such services, "the provider [must be]
asked, called upon, or undertake[] . . . to temporarily treat or
assist in treating [a] non-health center patient" experiencing an
emergency. Id. Third, the provision of care must be "at or near
th[e] location" where the provider was originally providing care.
Id. And, finally, "the health center must have documentation (such
as employee manual provisions, health center bylaws, or an employee
contract) [showing] that the provision of individual emergency
treatment, when the practitioner is already providing or
undertaking to provide covered services, is a condition of
employment at the health center." Id.
On the government's new theory of the case, its right to
substitution depends on whether the care administered by Dr. Roca
to Allen fits squarely within one or both of these scenarios. The
rub, however, is that neither of these scenarios was before the
district court. Indeed, the regulation that creates the scenarios
was never mentioned in that court. It is not surprising, then,
that the record is bereft of much of the documentation needed to
assess the applicability vel non of these scenarios. In short,
the record — as presently constituted — simply does not allow us
to make a reasoned determination as to whether the care
- 26 -
administered to Allen by Dr. Roca fits squarely within either of
the scenarios that the government labors to invoke.
The government admits as much but tells us that we may
fill the gaps by resorting to imagined knowledge of "standard
practices" and by accepting new evidentiary proffers. On this
gap-filled record, though, we lack a sufficient basis for
determining what practices are "standard" in the community
hospital setting. In addition, we repeatedly have cautioned that
appeals cannot be decided on the basis of evidentiary materials —
other than those that are susceptible to judicial notice — not
incorporated in the district court record. See, e.g., United
States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983) ("We are an
appellate tribunal, not a nisi prius court; evidentiary matters
not first presented to the district court are, as the greenest of
counsel should know, not properly before us." (emphasis in
original)).
To say more would be to paint the lily. The government
has confessed error, acknowledging that the district court's
favorable decision on a critical issue — whether the United States
should be substituted for Dr. Roca — rests on a porous foundation.
To shore up that porous foundation, the government asks us to put
our stamp of approval on an alternative theory for substitution.
But the government has not pointed to evidence in the record
sufficient to support its new theory and — equally as important —
- 27 -
the plaintiff has had no opportunity to offer evidence relating to
that theory, to challenge the government's suggested evidence, or
to present his legal arguments. To cinch the matter, the district
court has had no opportunity to consider the government's revamped
position and to give us the benefit of its thinking. See CSX
Transp., Inc. v. Healey, 861 F.3d 276, 287 (1st Cir. 2017)
(explaining that "[w]e often hesitate to address in the first
instance issues on which we lack the benefit of a district court's
consideration"); see also Rivera-Corraliza v. Morales, 794 F.3d
208, 217 (1st Cir. 2015) (remanding when court of appeals did not
have benefit of district court's evaluation of arguments).
This is a court of appeals, and that nomenclature aptly
describes our core function. Appellate courts are, by definition,
courts of review. They are not courts of first instance. In the
awkward posture in which this case now stands, we think it both
fair and prudent to vacate the substitution order, vacate the
partial final judgment entered below, and remand for further
proceedings consistent with this opinion. On remand, the district
court should allow such limited discovery as may be necessary for
the resolution of the substitution issue. See N. Am. Cath. Educ.
Programming Found., Inc. v. Cardinale, 567 F.3d 8, 18 (1st Cir.
2009).
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V
We need go no further. The question of whether the
United States should be substituted for Dr. Roca is a threshold
question. Until that question is resolved, there is no way to
know whether the FTCA applies to this suit. Consequently, there
would be no point in addressing either the issue of whether the
FTCA's exhaustion-of-remedies requirement, 28 U.S.C. § 2675(a),
forecloses the exercise of subject matter jurisdiction or the issue
of whether the plaintiff's action is time-barred. For the reasons
elucidated above, both the substitution order and the partial final
judgment are vacated and the case is remanded for further
proceedings consistent with this opinion. The parties shall bear
their own costs.
Vacated and remanded.
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