the next case is candace thomas and others versus albany area primary health care and appellants mr nelson is here for the someone who is a federally supported personnel all of the personal funding for albany area of primary health care is provided by the federal government dr talwar was sued in state court raised the the potential defense by the federal court claims that and after the case had been pending for some period of time the government removed the case pursuant to section two thirty three  ninety two where the case where the this case becomes i guess unusual or interesting is that the government after following the certification and after following multiple amendments over a course of a month representing the doctor call over was in fact a public health service employees so there were most the words of think the following st they file the certification late and then they filed yet another document that when they receive debris from the plane of abandon their argument even though it was the plane is burden to prove why there or not the government certification was correct and so this case does fall within the those cases osborne versus haley and the sort of the weight of a circuit authority including the alexander versus mount sinai decision conclusively established even if the employee defendant is later found not to be covered by the federal tort claims act and so what we're asking the court to do this  right i don't know the answer to that you that the government essentially filed a certification after they had a year and then to valuate the record and then when when the at the leaves fall of a motion to remain motion to dismiss they did not challenge that and in fact the record reflects that dr colliver is in fact covered under the federal tort claims that so the record reflects that she is specifically listed as a physician under the federally supported personal justification table which is page sixty three of one hundred and ninety three a document one hundred and twenty one and then ask you a question before your time runs out how do we deal reversed and find that subject matter jurisdiction exists and allow if necessary the district court to develop the record as would ordinarily have occurred under this set of circumstances and hold a hearing cautioned against it as the basis for when the government removes the case and certifies the physician is an employee under the public health service that there's essentially an any shoveling provision that prevents it from b forth because it's not the size of the intermodal confused in there already a determination that the that the hospital and the doctors are activity was not related to grant supported activity  based on the limited record that's what the district court found but i don't think that is either binding on the state court or precludes the development of additional evidence and we have raised on the in our brief as well that the district court erred in finding the st instance because we did file a motion that the statute does not really provide an avenue for dr tal over to challenge the government but remember at the time that all of this was occurring the government was representing both dr colliver albany area health care and the government and it basically can pitch elated for dr colliver and all the albany care and in fact is now arguing on behalf of the plainest which is sort of a dog with adversarial process that we have to we had to file to some vehicle to raise this issue which we did i'm not locations listed in the grant application phoebe putney was not specifically listed but what was listed was that albany area health care would provide hospitals coverage and after hours coverage for  if this patient had been a patient of patient evolve in the area of primary health care there would be no dispute that she would be covered by the federal tort claims act and so we that gets into even though dr tom ever treated various pursuant to an agreement with phoebe put me and was covered under private malpractise insurance private malpractise insurance policy request from a private health care provider this was an admission through an emergency room after hours with dr col over being the long call physician for patients so this is a very different area of primary health care are there one hundred percent of the time and they're there to provide care for the albany area of primary health care patients under a separate agreement if a community health care their g after she does there are three classes of patients she provides care for albany area primary health care patients patients who are community health care provider admits a patient to the hospital mass for her to provide hospitals coverage and the rd category would be sort of incidental to our work as both albany area primary health care which is patients who are mid on an emergent basis who do not have at the hospital of that very moment the the either the community pediatrician to be able to come in and see and that's the case here because the record is that that doctor tolerable for providing services after hours this was a four thirty in the morning five thirty in the morning transfer on a sunday morning to monday morning i believe timeframe and so we would contend that that is incidental to her clearly the funding plan that was albany area primary health care and  can't not be we can then she cannot be a public health service employee in this situation when her salary is paid for entirely by the government and that's what the record reflects i think the well that's that that is the issue that this is the conundrum that has been created by the government's certification decertification and that's this is exactly the issue and you're all raises a good point i'm not sure that the three was ever properly invoked by my client but that does what you say is the the question i have is in westfall because the statute itself doesn't really address what happened here which is here the government certifies ok and then it decides i'm going to take back the certification because i was incorrect when we erred in our factual analysis but invoked three but the attorney general had not refused to certify they had certified and then they withdrew and rescinded the certification right and i think that that gets back to i believe the deed three invocation by my client may have been in error because really it should have what we should have said and invoked as the two and simply said that as a subject matter of subject matter jurisdiction the government has certified d that point if i recall the record correctly and so i would have i think the d three motion was in effect a response in some ways to that to the motion for a man perhaps not articulated this clearly in hindsight in this complex issue as we would have liked but again this is an unusual case in which the really that the government takes one position after having the record in front of it for a centrally year and then continues to maintain it for a month in the court and then withdraw that suddenly after after taking all of these steps and i think that goes back to the tw orders there is nothing like that in the public health services if you go to the certification we don't have a certification under the west we have a certification doctor number one dash two that is a certification under thirty three under the public health services act now a lot has been made the government federal employee what we have here is a certification under the public health service act and as the supreme court and its own words has relentlessly repeated any revamped order on the ground jurisdiction because of the discussion about the merits before i'll just say a few things about it this is a statute that limits coverage  doctors are covered when they're treating health center patients but of course for non patients they're only covered if the secretary determines that certain conditions are met  he's spending all their money on insurance premiums but this is an unusual statute that puts the taxpayers on the hook for the negligence of a private party and it's very expensive congress wisely limited it so it doesn't follow the doctor wherever the doctor happens to go and put the taxpayer on the hook for everything the doctor does it covers doctors when they  go someplace else they're treating other people then you know it's only under certain circumstances this is not within the regulations circumstances there could have requested a particular arise determination if they thought that contract life life specifies that she would be provided additional malpractise coverage beyond pepperidge for patients whose primary care physician is not also directly employed by the health center so this is not within the scope of what congress provided and the health center i think it's telling they recognize that in these contracts and provided other  the government that this case should be decided on the jurisdictional issue i won't go into detail on that unless the court would like me to address it now but we agree that the government the government's position as explain d today should should be decisive of this case but i would like to cover some of the facts in the case that says that show that the district court correctly decided that  over should not be afforded federal tort claims act immunity for the claims related to the death of various thomas and firstly it's important that dairy is thomas was not  other other than this hospital is treatment he was not a prior patient of albany area health care and in fact he had an established relationship with another pediatrician tanya smith who's not an employee of albany area health care he had seen dr smith for twenty six visits during his twenty months since birth at the time of this occurrence and so it's it's pretty clear that he he was an established patient of a pediatrician who was totally unrelated to this all these were not all he was not a prior patient of the hospital's staff position well they're the defense have have introduced a bill that appears to indicate that his circumcision upon his birth was performed by a hospitalist of albany area health care but just practically speaking he was delivered at phoebe putney and so his circumcision was going to be performed by one of the pediatric hospital is there and pursuant to the contract between phoebe putney and albany area health care albany area health care provides two hundred and forty seven pediatric hospital is coverage so really there was not another another option other than that one of the albany area health care hospital is was going to perform that circumcision just just because of the fact that that's the location he was delivered but other than that circumstance for the other the hospital had previously billed for care provided areas thomas i believe it was only with regard to the circumcision as i as i've stated he was delivered at phoebe putney so he was billed by phoebe putney but the only indication of any relationship with hospitalization for his delivery minutes remaining so he was not a patient of albany area health care and so under the statute and the regulations that have been promulgated to interpret the statute non patients of the provider are only covered in very limited circumstances and this case does not fit any of those limited circumstances and that's important because the  standard that's been published by the department of health and human services is that if it doesn't fit squarely within the promulgated exceptions the provider should apply to the secretary for a determination that this certain activity with regard to non patients should be covered by the immunity of the federal tort claims act and that never occurred in this case all the area primary health care did not apply for a determination that it's two hundred and forty seven staffing at phoebe putney hospital should be considered related to its grant activity and should include treatment to non patients so the only other situations under which non patients are considered to be covered as grant related activity are set out in forty two c f r sections fixpoint fifty and there the two sub sections of that regulation that apply that could potentially apply but don't apply here are number two which is hospital related activity which covers periodic hospital call or hospital emergency room coverage required by the hospital as a condition of obtaining hospital admitted admitting privileges and there must be documentation for the perth particular health care provider that the coverage is a condition of employment of the health center and that's not the three likewise doesn't apply that applies to periodic or occasional cross coverage again this was not periodic and it was not occasional she was in the hospital as the entirety of her employment the record no your honor i was i would submit that albany area health care has federal grant funding for its pediatric primary care that it delivers in the specific exceptions in that regulation apply and squarely apply the language that's been used by that of the department of health and human services and in some different district court opinions  exceptions published in the federal regulations are not squarely a political witch in this case they're not squarely applicable the correct course of action to a stablished federal tort claims act immunity coverage specifically on that and then the total for that amount is three million nine hundred and fifty eight thousand nine hundred and seventy dollars that is the amount for personnel costs if you go to page two pages before page sixty one dollars of document twelve it lists under the budget the federal portion for personal charges is three million nine hundred and fifty eight thousand nine hundred and seventy dollars and so it is our position that dr colliver salary is entirely funded as is every physician salary is entirely funded by federal grant support there may be other issues in terms of how much they pay for other locations but the record is that elise is the doctor tal afar who's working at the hospital she is being paid one hundred percent of the time by a federal grant now i want to go back to the issue of two thousand six hundred and seventy nine and i want to point out that while the government has essentially suggested that was just a string site in their motion for substitution of the gets back to the issue which is we've asked the score to conclude which is that even if their certification is and they are the court should find that the district court has subject matter jurisdiction  versus haley decision and alexander versus mount sinai which which also and other circuit decisions which followed the seven circuit decision which all stand for the proposition one which is when the government o we would also ask that the court we believe the court should conclude that dr collar is in fact a covered employee under the federal tort claims that for the reasons we've set out in our briefing and argument by the record even if the