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- - 3 - 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 …
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