individual who has been deemed to be a public health service member with respect i'm sorry your honor club reserve one minute our time he was a part time public service member right well your honor his employment on behalf of hudson river river health care as we put in the petition says part time he had no other form of employment i guess that that's one of our issues we'll talk about but he had no other source of employment he was never paid by the hospital where the surgery was performed that it was not your own he billed separately yes he did ok go on i think i excel right where i will go then so the real issue here even though there is quite a bit of common ground and that he a deemed federal employee for purposes of the care that he provided to this health centers patients he that was final and binding an irrevocable and he was amusing with respect to all care prior to the delivery and after the the delivery according to the district court decision below now the where we diverge is whether in the middle of the continuum of medical care when he performed the delivery of this health centers patient that he saw the day before the delivery in the health center whether that portion of the continuum of care was in the scope of his employment for the health center for the sole issue of whether the sole dispute is whether by billing on his own national practitioner identifier number that put him outside the scope of employment that sole fact because when you apply every other factor in the state law scope of employment test it's very clear that he's acting on behalf of the health center they hired him to provide inpatient and outpatient services to provide care to their patients in the hospital outside the hospital to supervise those patients in the hospital and outside the hospital health care center have any inpatient pati honor they do so they're not it's not the case that a reference to in patients necessarily means in patients in other hospitals there is there is another words a referent of potential referent for inpatient services that does not include what happened here that's not to say a month and need to concede somehow that it doesn't include it but i was asking the question because i  was concerned that if they had no indication patients at their own facilities that would kind of clinched the case for you but yes and apparently has not this is these health centers are primarily ambulatory care operations that do have obstetrician gynecologist and if you look at the statute that this immunity arises under references surgical provisions and it references the practices so that they will see a patient for prenatal care at the health center during the course of the pregnancy at some point in time there's a decision made as to when to deliver or the mother goes into labor and in that decisions made for everyone in this case the decision was made at the health center as between the plaintiff and doctor rosmah zhan talking about when to deliver he made advice as to when to deliver which was the following day and then all obstetricians who deliver babies have to have admitt privileges at the hospital so there's no way to understand the contract is when it's talks about hospitalized patients it's talking about people who are hospitalized at the clinic it means hospitalized in a separate hospital like yes your honor yes absolutely so and in particular w talking about primarily our obstetrics that's when you have hospitalized patients that you can follow from the health center into the hospital there can be conduct logical procedures surgeries births babies that's the most common but there are others hysterectomy is that sort of thing is there any anything in the record to reflect whether it is standard practice i mean is it would seem that if a patient is going to an o b g y n for prenatal care that patient is not looking to find a new doctor when it's time to have the baby that would make sense to me but i'm just wondering is there anything in the record of what the normal practice is this doctor resumes on in other words typically see the patient weeks months or or one of his colleagues and then either he or one of his colleagues from the health care center is the person who actually delivers the baby one time comes i think if you ask most mothers they would say what's typical and preferred is they want their o b to do the delivery i would think yes but on occasion that doesn't happen and on this particular in this particular case a colleague of dr rozen is on another employee of the health center was the regular o b and then he wasn't available at the time for this last visit dr rozen saw the patient and made the determination given her medical history and the circumstances that she needed to deliver soon he ordered it right but if that hadn't happened then it would have been the other director in the health care brief it was not a factual finding below but it is in fact in the contract it's not uncommon at all for physicians to maintain private insurance and this case is a perfect illustration of why that is it's because of bad coverage decisions the office of general counsel for the department of health and human services denied coverage for this entire case the government didn't move in voluntarily to substitute for any portion of the case we had to affirmatively push for a substitution as to a large portion so they make bad decisions the case of greater philadelphia we cite and keys are two other examples of how private malpractise insurance he did your honor and what and what i would say about that too is it's very interesting that the government suggests that that's an admission when in the case of mclaren versus united states in the th circuit united states literally urged the court in the court accepted this argument that there's absolutely nothing wrong with having private insurance in this immunity at the same time because there are gaps and we've we're discovering that  fraught with them i chose his knowledge of the situation that at some point the government would not be covering him when he went to the hospital where he was billing patients directly i would respectfully disagree on or i think what it reflects is there risk in this fit in this area and the risk is illustrated by this policy that effectively for clues any financial arrangement like the one we have here and for closes or precludes the state scope of an employment  then the health center gave the money back to him and said ok that's per agreement the government would say apparently that's not proper although my point is that it renders it utterly form over substance it is there is the right to assign payment that was forty three shall be reviewable by appeal so isn't this a case that was removed pursuant to section one thousand four hundred and forty two not for four reasons one he's just not a federal employee and he does not argue that he is an employee of a private clinic that private a federal employee and this statute by the way doesn't talk about employees talks about officers which is another word i mean what does that mean in the case of deemed employees well so the deeming as a legal fiction in order to extend  to thirty three and fourteen for you conclusion does have a triple cite to those things but that's that brings me back to the point i was making earlier that throughout the notion of removal there is not a single mention of any fact that would bring him within that coverage you're saying individual can remove that's all correct but the problem the problem is of course with that means is that if he were on the merits work properly deemed a federal employee and the district court got it wrong it would be insulated from review several reasons you are saying the only way that he gets to have any removal of the case assuming that he's right on the merits that's that's his vehicle for presenting those merits to the district court and the general new york response if you're a law it does apply but it's more complicated than they make it out to be it's not a simple question of scope of employment on their responding answer period or what matters is that legal fiction deemed employment and that deeming is a federal law question and we s two steps well the the statute sets out a bunch of things about the scope of the project and talks about how a covered entity has a project that has to be approved by the secretary  then the regulations in turn talk about how the scope of employment has to be within the scope of that project and so that is what and then that in turn has been interpreted by the manual which sets out the alternate building rule that was interpret on behalf of the covered entity within the scope of employment it has to be within the scope of the approved project but why why isn't this exactly that his contract says your job with us is to follow these patients and it certainly would be kind of ridiculous if we held ourselves out as offering prenatal care but after the last point you're on your own you have to find another doctor to deliver the baby and that's not what happens the f t c a manual specifically contemplated a section called continuity of care and it specifically contemplates exactly this type of situation where someone is seen in a clinic and then has to be taken to a hospital but because the clinic said when that happens you build directly instead of the hospital the health care center saying we'll build directly we'll get the money and you are additional compensation on top of your regular salary for birth and babies we will give you ninety nine point nine percent or even one hundred percent of what we get from the patient or the patients insurance or medicaid or ever it comes from for payment we give that over to you with that make that change the result in this case in your view i think if you had an express agreement of that type of a signing over that type of payment that would change this case but that's not what we have so the substance is the same but because not doctor resumes and who god knows has no reason to know all these details of  regulation but because the health care center because their general counsel didn't read the manual right and didn't figure out a way to accomplish economically what they wanted to accomplish the everybody loses their federal insurance over the think it's supposition on the doctor's part that that's what they wanted to accomplish that's what they did accomplish and exactly what they did accomplish letting him keep the money we go unless of the reasons why he's some speculative stuff they couldn't afford to make  a salary arrangement with him so they made this kind of piece work but you keep the money arrangement but economically regardless of why they did it that's exactly what they did they did the equivalent we get the money and then we assign it over to you well we just kick it back to you without making a assignment so was i made a direct assignment they said we're going to get this money but we're assigning to you our right to collect the money would that change the result from what you're advocating here  are the ones in the hospital so if he refused to treat if he's treated them at the clinic and they had to be hospitalized and he said no somebody else should treat them at that point would he not be in breach of his contract with you to reach here and i'm not i don't know enough about the specifics of what might happen in those circumstances if you made alternative coverage i don't know that they would have an action for breach of contract but my point about the contract is it doesn't say he can keep the money it says he's responsible for billing but again just as contemplated this in the alternate billing section of the manual where it says yes this happens sometimes when we have this continuity of care that you go back to the mail before the time is up so your position is not that the manual is an interpretation of the f t c a but it defines the scoop of the so st of all i don't think it's the f t c it's the health centers act that's second of all the regulation itself is it is a notice in common promulgated interpretation of that statute and that's where it says you have to be acting on behalf of the covered entity and then i think the manual it is a proper interpretation that's less of that out and says when we're talking about acting on behalf of the covered and indeed we have things like the alternate billing arrangement where we contemplate continuity of care and we contemplate that you might be billing you the dock you might be billing on your own but if you do that you've got to pay it back over to the clinic and that just makes that fits within the commonsense definition of the clinic acting on behalf of the clinic they're the ones who have control of the money maybe they do choose to assign it maybe they choose to partly assign him but they're the ones who get it and can control it and they know about it they have notice that this is going on they have notice that this is a billing arrangement and then they can make their own decision and i don't know exactly what would happen in all those other hypothetical cases but in this case he didn't pay that money back and but there's nothing wrong with his not paying it back because they agreed to go outside the scope of the coverage this is a private doctor at a private hospital billing privately and he's now claiming he should get the publicly funded benefit of acting on behalf of the  publicly funded entity if he had paid them over if he had remitted that money then he could make that claim and he would fit within the alternate bowing arrangement that h h s is contemplating but he did we needed the money to the government you made no to the to the clinic the clinic is a private granted they are not a government entity there you were in the government now any how would he be paid for his services he that would be between him and the clinic but he would either receive a salary or he get a cut one way or the other part time employee of the clinic and he got a salary and he was paid for that he was paid almost two hundred thousand dollars a year for me they didn't want to come place this arrangement where he gets paid the billing for the hospital you're saying he's not covered by the statute because he bill directly and took the proceeds but if he had billed directly remitted proceeds to the government the government gave them all back to him because that's what they wanted to accomplish and he becomes to the clinic and that would have to be that i would have to be says that a i have to don't actually have to have a different contract you would have to but what i was one of what i'm asking is the if they just decide it's more efficient for him to bill and take the money himself as opposed to going back and forth that's coverage to say that this has to be the type of arrangement so that we have notice and that we have control when you say we say we i mean it's still it still seems to me a rather peculiar way of thinking about when a doctor is acting on behalf of the health care center that employs him to focus on where the money goes rather than to focus on the duties and the care of the patients which is what we're all supposed to be concerned with you're here he's hired to do this job he's hired by this health care center to do the very thing that he did and they say your compensation for that is we're paying you a salary but you're also going to be compensated by collecting what you can call act on this work that we are requiring you to do on our behalf i don't we don't agree with that latter part of the answer petition the contract that that's what the clinic agreed to again they say he can build they don't say he can keep it if the court were to read it as saying he can't keep it and that has to be read in light of the next sentence which says you also have to keep your own men know it's a good thing he did have malpractise insurance because otherwise he would have been totally screwed here because you denied coverage for things that he actually was covered under everyone now agrees by the federal deeming that is the outpatient work that he did but if he didn't have a lawyer paid for by his malpractise insurance to come in and fight the government on that he would about nicole he did get coverage for the clinic treatment he did eventually but the government did not come in and say we're aware of defending you on this but not on that they said no and he had to come in and file a lawsuit or take an action and make a motion to do it every day to do represented by a lawyer who thankfully he had medical malpractise insurance coverage because otherwise he would have been looking in the marketplace to pay a lawyer to do if in fact objection and over the failure of the u s attorney to come in and recognize that immunity so we can't believe we didn't make a colorable showing when we already got immunity for the lion share not the issue the issue is how do you get to the court of appeals the statute says because you certainly were able to remove the case under two hundred and thirty three but if you removed it under two hundred and thirty three and then there's not appellate jurisdiction if it's sent back maybe  defense which is a very low hurdle that you're acting on behalf of or under the office of a federal office and here we have a final and binding determination that affords a federal and unity which was awarded which is i think that means the to the agency and he's working for the agency and the agency is the federal he's deemed a public health service officer which is a uniform that's one of our uniform services that don't fight earlier i don't believe a different contract is needed i don't think it's fair for the government to refer to that issue as supposition the findings below are the below and the district court said and found that this contract benefited the health center by lowering its base cost to get a very experienced provider to cover this full range and shift the risk which is what contracts do shift the risk over to the provider that there might not be enough deliveries to make up for what his real base salary which would be which i know you know close to two hundred thousand is a lot of money but it isn't a lot in westchester or that area for these with thirty years experience it's just not the full salary and that was contemplated that was  ask to be a public health service official for a period of time in advance of that period so you know whether you have coverage or you you know that's the final and binding decision by the secretary thereafter when a lawsuit arises out of that period of time there's a subsequent decision that's made as to whether the immunity that you were given that's final and binding applies to that lawsuit now whether it applies to that lawsuit is a question of two elements that are in section two hundred and thirty three  was doing the bidding of his employer who required him to go in and do that and they compensated him by for that by assigning him the billing rate that's a state law question and that has been there is no occasion for a manual to interpret scope of employment by the agency it just not it's not appropriate the statutes plane it's had a meaning that can be understood through common canons of construction for decades it is explicitly referred to  reference under new york state law what an employee's contract says he does or doesn't do is central to our lease is a major factor in determining what right your honor and the man and many employers have manuals of some kind and i understand that but it's binding on the employer right it's it comes from a higher source that tells the employer this is what your rules are supposed to be you know i think the issue is really how important is this manual but true that it's necessarily more important under federal law or less important or state law it's a kind of it's not a who's making this contract has a parent company or something that says here are the kinds of contracts you're authorized to make and you know i think it would be a decent argument anyway that that's incorporated by reference into your  contract with you all the way up into the last part of your honor and what i would say to that is the policy can't change the scope of employment test can it be considered absolutely and the compensation structure can be considered absolutely i think every case that's been delgado rosenblatt all of arrow all those cases concerned are considered the monetary piece but not in isolation and not is the sole dispositive factor i think they portray a spectrum this case falls in the middle and i believe we believe falls on the side of within the scope because we've all due respect i think the contract says and that can't be a challenge i don't think fairly here because it was found by the lower court and the only way to challenge that would be to give us the hearing we did ask for that wasn't given then it could open in theory the factual pattern back up but as it stands on appeal the district court found as a matter of the findings on appeal that this contract benefited the health center under new york state law that's the ballgame really is doing the bidding of a separate employer and you can't dictate how you're going to get paid by that separate employer you can't dictate what you're going to do one employer can dictate what you're going to do in a half of another employer so there's too many cross connecting threads in strands to suggest that this contract him he would be self employed at the hospital right as he builds for himself they are making a contract that involves another lawyer is it not possible to read the contract that when it says ok we're going to pay you for what you do at the clinic but when you're at the hospital we expect you're going to treat the patients there but you get a bill privately and you're working for yourself basically when you do it i think that's how the government like to interpret it but that is asking you to point to something that excludes that interpretation like can't we read the contract that way well because it refers to all the responsibilities that were performed in one document he performed the responsibility that gave rise to this claim and it's contemplated in that document it doesn't say and will refer to you and your separate incorporated status certain responsibilities for which you can handle the billing separately he said when you do this on our behalf you know that's your that's the answer i think you can exam i will reserve