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.

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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. § 233

establish 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

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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 —

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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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