O'Brien v. United States

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: GELPÍ, Circuit Judge.
• Citation: O'Brien v. United States, 155 F.4th 50 (1st Cir. 2025)
• Docket Number: 24-1844
• Decision Date: 11 September 2025
• Parties: Brad O'BRIEN, Personal Representative of the Estate of Melissa Allen, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

155 F.4th 50

Brad O'BRIEN, Personal Representative of the Estate of Melissa Allen, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.

No. 24-1844

United States Court of Appeals, First Circuit

September 11, 2025

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]

Adam R. Satin, with whom Andrew C. Meyer, Jr. and Lubin & Meyer, P.C. were on brief, for appellant.

Kevin Benjamin Soter, with whom Brett A. Shumate, Acting Assistant Attorney General, Leah B. Foley, United States Attorney, and Dana Kaersvang, Attorney, Appellate Staff, Civil Division, were on brief, for appellees.

Before Gelpí, Kayatta, Circuit Judges, and Smith,^* District Judge.

GELPÍ, Circuit Judge.

Plaintiff-Appellant Brad O'Brien ("O'Brien") filed a wrongful death medical malpractice suit as the personal representative of the estate of Melissa Allen ("Allen"), who died eleven days after receiving medical care at Lowell General Hospital ("LGH" or "the Hospital"). The suit alleged that LGH and its providers -- including Dr. Fernando Roca ("Dr. Roca") -- were negligent in the care of Allen, acts which O'Brien contends resulted in Allen's death. The district court dismissed the suit for failure to make timely presentment under the Federal Tort Claims Act ("FTCA"). We affirm.

I. BACKGROUND

O'Brien is the surviving partner of Allen and the personal representative of her estate. The tragic events leading up to Allen's death are largely undisputed. On July 26, 2016, Allen suffered multiple seizures at her home. She was brought to LGH's emergency room and later admitted to the Hospital. Hospital staff determined that Allen was seven months pregnant and suffering from severe hypertension. Dr. Roca, an obstetrician, was on call at LGH and attended to Allen. Dr. Roca determined it was necessary to perform an emergency caesarian section and, subsequently, delivered Allen's baby girl. Following the birth, an unresponsive Allen was transferred to the intensive care unit where 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 cause of death was listed as "intracranial hemorrhage and eclampsia."

In March 2021, O'Brien sued Dr. Roca and LGH in state court. At the time Dr. Roca rendered care, he worked for Lowell Community Health Center ("LCHC"), a center receiving federal grants under 42 U.S.C. § 245b. Also at the time of the relevant events, LCHC was a "deemed" Public Health Service ("PHS") program for purposes of 42 U.S.C. § 233.¹ Dr. Roca needed clinical privileges at a nearby hospital as a condition of his employment; he obtained those privileges at LGH. To maintain privileges, Dr. Roca was required to participate in the Hospital's on-call rotation system and treat incoming patients under the same.

Under the Federal Employees Liability Reform and Tort Compensation Act ("the Westfall Act"), the government substituted itself for Dr. Roca and removed the case to federal court. The Westfall Act provides:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his . . . employment at the time of the incident out of which the claim arose, any civil action . . . commenced upon such claim in a State court shall be removed . . . to the district court of the United States . . . and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(2). The district court upheld substitution and dismissed the case, holding that O'Brien's claims were time-barred by the two-year limitations period under the FTCA. O'Brien appealed.

On appeal, the government acknowledged its argument incorrectly relied on the Westfall Act, which applies to government employees, instead of the PHSA, which applies to health centers.² The government argued that substitution was still proper, although for different reasons than would have applied under the Westfall Act. We vacated the substitution order and remanded given the error "brought new issues into play and left gaps in the evidentiary record." O'Brien, 56 F.4th at 141. On remand, the government again moved for substitution, this time based on the PHSA. On September 6, 2024, the district court granted the government's motion and dismissed O'Brien's complaint. O'Brien again appeals.

A. STANDARD OF REVIEW

We "review the grant of a motion to dismiss de novo, accepting well-pled facts as true and drawing all inferences in favor of the non-moving party." 3137, LLC v. Town of Harwich, 126 F.4th 1, 8 (1st Cir. 2025) (quoting Rivera-Rosario v. LSREF2 Island Holdings, Ltd., 79 F.4th 1, 4 (1st Cir. 2023)). "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." O'Brien, 56 F.4th at 145.

We also review scope of employment determinations under the same de novo standard. McIntyre ex rel. Estate of McIntyre v. United States, 545 F.3d 27, 40 (1st Cir. 2008) (citing Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)).³

B. STATUTORY BACKGROUND

The PHSA, 42 U.S.C. § 233, "protects PHS employees from personal liability for injuries resulting from the performance of medical services rendered within the scope of their employment." O'Brien v. Roca, 719 F. Supp. 3d 158, 161 (D. Mass.), reconsideration denied sub nom., O'Brien v. Lowell Gen. Hosp., 749 F. Supp. 3d 209 (D. Mass. 2024) (citing 42 U.S.C. § 233(a)). Pursuant to the PHSA, suits brought against employees of public health centers receiving federal funds are governed under the FTCA, 28 U.S.C. § 1346. Thus, when an action is filed against a PHS employee in state court, the PHSA requires the government to be substituted as the defendant and the case to be removed to federal court upon the Attorney General's certification that the PHS employee acted within the scope of his or her employment. See 42 U.S.C. § 233(c). In other words, "[w]hen federal employees are sued for damages for harms caused in the course of their employment, the [FTCA] generally authorizes substitution of the United States as the defendant." Hui, 559 U.S. at 801, 130 S.Ct. 1845. As we explained in Morales-Melecio v. United States (Dep't of Health & Hum. Servs.):

The FTCA constitutes a limited waiver of [the United States'] sovereign immunity, allowing, in relevant part, for damages claims to be brought against the United States for any "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."

890 F.3d 361, 366 (1st Cir. 2018) (quoting 28 U.S.C.§ 1346(b)(1)).⁴

The Federally Supported Health Centers Assistance Act of 1995 ("FSHCAA") amended the PHSA to allow for certain health care entities to apply for federal funds and to extend, to health centers, the "same PHSA and FTCA protections as are enjoyed by PHS employees." See O'Brien, 56 F.4th at 148 (citing 42 U.S.C. § 233(g)(1)(A)). "[A] federally funded health center or any particular individual associated with it must be 'deemed to be an employee' of the PHS" in order for the protections to apply. Id. These deeming determinations are made by the Secretary of the Department of Health and Human Services ("Secretary"). If deemed, a health center is generally covered under the FTCA when treating its own patients; however, deeming does not conclusively establish liability protection for services rendered to someone who was not a patient of the health center.⁵ Id. at 149. Covered entities have to "comport with specific requirements laid out in 233(g) and accompanying [HHS] regulations." Bray v. Bon Secours Mercy Health, Inc., 97 F.4th 403, 407 (6th Cir. 2024)(citing 42 C.F.R. § 6.6).⁶

Further, an "act or omission [giving] rise to the claim" must also have occurred while the defendant was "acting within the scope of his office or employment." 42 U.S.C. § 233(a). The Attorney General determines whether to certify "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). "If the Attorney General advises [a] 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." O'Brien, 56 F.4th at 148 (citing § 233(l)(1)).

If the covered individual provided services to a non-patient of the covered entity, however, malpractice liability protection requires either: (1) a specific determination by the Secretary as to the specific arrangement at issue pursuant to 42 C.F.R. § 6.6(d)⁷ or (2) that the services provided "fall squarely within" one of the listed scenarios the Secretary has already categorically deemed covered under 42 C.F.R. § 6.6(e)(4). Bray, 97 F.4th at 407.

II. DISCUSSION

O'Brien makes four principal arguments on appeal. First, he contends that the district court erred in holding that the regulation promulgated by the Secretary did not violate the PHSA's statutory scheme. Second, O'Brien argues that the district court erred in finding that deeming extended to Dr. Roca's treatment of Allen. Third, O'Brien believes his time to file a claim did not begin accruing until he first spoke to his lawyer in September 2017. Lastly, O'Brien contends that, even if his claim accrued before he spoke with his lawyer, the FTCA's Savings Clause saves his claim. We analyze each argument seriatim, concluding that the district court correctly allowed the substitution of the United States as the defendant and properly dismissed the case. We, thus, affirm.

A. The Regulation's Validity

As noted, by statute, health centers and their employees are generally deemed federal employees only when providing services to individuals who are health center patients.⁸ The Secretary's regulation includes two methods for determining whether FTCA coverage extends to non-patient...