BRAD O‘BRIEN, Personal Representative of the Estate of Melissa Allen v. UNITED STATES ET AL.
No. 22-1014
United States Court of Appeals For the First Circuit
December 19, 2022
Before Lynch and Selya, Circuit Judges, and McElroy, District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton,
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.
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),
I
We begin with the relevant facts. Because this appeal follows the allowance of a motion to dismiss under
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,
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
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
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.
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,
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
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
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
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
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 that42 U.S.C. § 233(l) details the “two circumstances in which [such a] case can be removed” to a federal district court).
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
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. 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
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
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,
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
III
“We review de novo a district court‘s allowance of a motion to dismiss for failure to state a claim under
A
Although the government has abandoned its reliance on the Westfall Act,
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 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
jaws of defeat, the government offered a new rationale for substitution: it said that a different statute, the PHSA,
The differences between the Westfall Act and the relevant portions of the PHSA are real, not simply technical.
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.
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
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.
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.”
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
We hasten to add that the Secretary‘s annual “deeming” determination
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 individual[]” meets at least one of three conditions.
(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.
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
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
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
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
As a fallback, the government cites to the scenario limned in
the [health] center, or to an individual who is not a patient of the health center under the conditions set forth in [
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 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 — 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).
V
We need go no further. The question of whether the United States should be substituted
Vacated and remanded.