Frank Giordano v. Andrews Hohns

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 24-1305

________________

FRANK GIORDANO; DANIEL M. DILELLA,

Appellants

v.

ANDREWS HOHNS; NOAH GRIFFIN; JAMES

SWANSON; JANE AND JOHN DOES (1-10); UNITED

STATES OF AMERICA

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:23-cv-01614)

District Judge: Honorable Nitza I. Quiñones Alejandro

________________

Argued on November 8, 2024

Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges

(Opinion filed: November 18, 2025)

George A. Bochetto

Kiersty DeGroote [ARGUED]

David P. Heim [ARGUED]

Bochetto & Lentz

1524 Locust Street

Philadelphia, PA 19102

Counsel for Appellants

Landon Y. Jones, III

Rebecca S. Melley [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellees

________________

OPINION OF THE COURT

________________

KRAUSE, Circuit Judge.

Given the wide range of federally affiliated programs in

the United States, it is not always clear who counts as a federal

employee, but that status can make a world of difference when

a putative employee-defendant is sued. In general, when a

federal employee is sued in state court for on-the-job tortious

conduct, the Westfall Act, 28 U.S.C. §§ 2671, 2674, 2679, in

conjunction with the Federal Tort Claims Act, id. § 2671 et

seq. (FTCA), authorizes the Attorney General to substitute the

United States for the individual defendant, to remove the case

2

to federal court, and to have the claim dismissed on

sovereign-immunity grounds. But that shield from individual

liability is only available if the defendant qualifies as an

“[e]mployee of the government,” id. § 2671, and the Attorney

General certifies that the employee “was acting within the

scope of his office or employment,” id. § 2679(d)(1).

Here, Appellees Andrew Hohns, Noah Griffin, and

James Swanson (the Defendants) are three members of the

United States Semiquincentennial Commission, who made

statements critical of the Commission’s then Chairman and

Executive Director, Appellants Daniel DiLella and Frank

Giordano. When DiLella and Giordano were eventually asked

to step down from those roles, they brought a tort action against

the Defendants in the Philadelphia Court of Common Pleas.

But their suit was short-lived. Invoking the Westfall Act, the

Attorney General certified that the Defendants’ statements

were made “within the scope of [their] office or employment,”

id. § 2679(d)(1), removed the case to federal court, and

successfully moved for dismissal on the basis of sovereign

immunity.

Giordano and DiLella argue that was error because the

Defendants do not qualify as “[e]mployee[s] of the

government,” id. § 2671, and, even if they did, their statements

were not made in the course of their employment. Perceiving

no error, we will affirm.

I. Background

In 2026, this country is poised to celebrate its 250th

anniversary. To prepare for that momentous occasion,

Congress passed the United States Semiquincentennial

Commission Act, Pub. L. No. 114-196, 130 Stat. 685 (2016)

3

(the Commission Act), which created the United States

Semiquincentennial Commission—a bipartisan entity tasked

with “planning, encouraging, developing, and coordinating the

Nation’s 250-year anniversary celebrations,” J.A. 35; see

Commission Act § 4(a). The Commission “serve[s] as the

point of contact of the Federal Government for all State, local,

international, and private sector initiatives regarding the

Semiquincentennial of the founding of the United States.” Id.

§ 5(e); see also id. § 6.

The Commission consists of 24 voting members—four

Senators, four House members, and sixteen private citizens

appointed by congressional leadership—as well as several

nonvoting members, including the Secretary of the Interior, the

Secretary of State, the Attorney General, the Secretary of

Defense, the Secretary of Education, the Librarian of Congress,

the Secretary of the Smithsonian Institution, and the Archivist

of the United States. Id. § 4(b). Congress later added the

National Endowment for the Arts chair, the National

Endowment for the Humanities chair, the Institute of Museum

and Library Services director, and the Chief Justice (or his

substitute) to the list of non-voting members. United States

Semiquincentennial Commission Amendments Act, Pub. L.

No. 116-282, § 2(a), 134 Stat. 3386 (2020) (the Commission

Amendments Act).

As for the Commission’s governing structure, the

Chairperson is selected from among the private-citizen

members by the President of the United States and is himself

authorized to hire an Executive Director. Commission Act

§§ 4(b), 8(c). In addition, the Commission Act empowers the

Secretary of the Interior to select a nonprofit to serve as

“administrative secretariat”—the entity responsible for

4

performing the Commission’s “financial and administrative

services.” Id. §§ 5(e), 9(b).

That background sets the scene for the entrance of the

parties to this case. When the Commission was founded,

DiLella was appointed a private-citizen member and named

Chairperson, originally by President Trump and later by

President Biden, who reappointed him. DiLella, in turn, hired

Giordano as Executive Director. See Commission Act § 8(c).

Hohns, Griffin, and Swanson were also among the appointed

private-citizen members. In addition to serving as a

Commissioner, Hohns was the founder of a nonprofit,

USA250, that he championed for the administrative secretariat

role. When another entity was selected, Hohns allegedly laid

blame at the feet of DiLella and Giordano, and conflict—

culminating in the underlying suit here—swiftly ensued.

In January 2023, DiLella and Giordano filed a

complaint against the Defendants for defamation, false light,

tortious interference, and civil conspiracy in the Philadelphia

Court of Common Pleas. As alleged in the complaint, Hohns,

angered at being overlooked for a leadership role and at his

nonprofit’s unsuccessful bid for the administrative secretariat

role, formed a “personal animus,” J.A. 78, against DiLella and

Giordano and began publicly accusing them of “mismanaging

the Commission, wasting public funds, engaging in cronyism,

violating the Commission’s internal rules and by-laws, and

breaching their fiduciary duties,” J.A. 71. Griffin and Swanson

then allegedly joined Hohns in a “malicious effort . . . to wrest

leadership of the Commission from Plaintiffs,” “engag[ing] in

a campaign of libel, slander, and smearing.” Id. As part of that

campaign, Hohns allegedly “participated in penning a letter”

on the letterhead of then Congressman Robert Brady that

5

questioned DiLella’s conduct as Chairperson, J.A. 78-79, and

then used that letter to denigrate DiLella’s leadership at the first

Commission meeting, J.A. 79. The Defendants also allegedly

“hijacked a September 2021 Commission meeting by

interrupting DiLella,” to complain about mismanagement of

the Commission, J.A. 80, and then contacted the media and

“influential elected officials within Congress . . . making the

same or similar false and defamatory claims,” J.A. 81-82.

According to the complaint, this defamation damaged

DiLella’s and Giordano’s reputations, undermined their

authority, caused them emotional distress, and eventually

resulted in their removal from the leadership of the

Commission. Even though a subsequent internal investigation

revealed there was “no evidence of the alleged wrongdoing”

by Commission leadership, the allegedly defamatory

statements also had severe consequences for DiLella and

Giordano in their personal and professional lives outside of the

Commission. J.A. 82.

Soon after the complaint was filed in state court, the

Attorney General intervened on behalf of the Defendants,

removed the case to the Eastern District of Pennsylvania under

the Westfall Act, certified that the Defendants were acting

within the scope of their federal employment under 28 U.S.C.

§ 2679(d)(2), and substituted the United States as defendant in

their place. Over the objections of DiLella and Giordano, the

District Court determined that substitution was proper, decided

discovery was unnecessary to confirm that conclusion, and

then granted the Government’s motion to dismiss.

DiLella and Giordano filed this timely appeal.

6

II. Jurisdiction and Standard of Review

The District Court had jurisdiction to accept the

certification and dismiss the case under 28 U.S.C. § 2679 and

28 U.S.C. § 1346(b)(1). We have jurisdiction under 28 U.S.C.

§ 1291. This appeal presents two issues: (1) whether the

District Court erred by accepting the certification and

substituting the United States as defendant, and (2) whether the

District Court should have permitted discovery before

dismissing the case. We review the dismissal de novo. See

Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir. 1993). We

also conduct plenary review of the District Court’s

determination that the Defendants were federal employees

“acting within the scope of employment,” id., but we review

its “decision to deny jurisdictional discovery . . . for abuse of

discretion,” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446,

455 (3d Cir. 2003).

III. Discussion

The federal government serves the nation not only

through the well-known institutions that comprise the three

branches, but also through a wide range of federally organized

or funded entities, as well as local agencies and contractors. As

a result, determining who qualifies as an “[e]mployee of the

government” can sometimes prove challenging. 28 U.S.C.

§ 2671. This case requires us to take up that challenge in the

context of the FTCA and Westfall Act. To determine whether

those statutes cover the private-citizen Commissioners of the

Semiquincentennial Commission, we consider below (A) the

history and function of the Westfall Act, (B) the hallmarks of

a federal agency under the FTCA and Westfall Act,

(C) whether the Commission possesses those hallmarks,

(D) whether the Defendants qualify as “[e]mployee[s] of the

7

government,” id., and (E) if they do, whether their statements

were made within the scope of their employment.

A. History and Function of the Westfall Act

As a sovereign, the United States generally enjoys

blanket immunity from suit unless it chooses to waive that

immunity. Millbrook v. United States, 569 U.S. 50, 52 (2013).

Congress took that step in the FTCA, which, as a “limited

waiver of sovereign immunity,” opened the federal

government to liability “to the same extent as a private party

for certain torts of federal employees acting within the scope

of their employment.” United States v. Orleans, 425 U.S. 807,

813 (1976). But that waiver carried an unintended

consequence: As interpreted by the Supreme Court in Westfall

v. Erwin, 484 U.S. 292 (1988), the FTCA subjected federal

employees to personal tort liability for their public service.

Congress disagreed with that reading, and in 1988, passed the

Westfall Act, which immunized federal employees from

work-related tort liability and authorized the federal

government to intervene in such cases. See 28 U.S.C.

§ 2679(b)(1)-(2); Osborn v. Haley, 549 U.S. 225, 229 (2007).

The Westfall Act thus incorporated the common law concept

of respondeat superior, which imputes liability to employers

for their employees’ torts, as here, against the federal

government. See Gutierrez de Martinez v. Lamagno, 515 U.S.

417, 420 (1995); Carroll v. Trump, 49 F.4th 759, 765 (2d Cir.

2022).

Since that time, the FTCA and Westfall Act have

worked in tandem to provide the “exclusive” remedy in any

“civil action or proceeding for money damages,” 28 U.S.C.

§ 2679(b)(1), stemming from “torts committed by federal

employees acting within the scope of their employment,” Levin

8

v. United States, 568 U.S. 503, 509 (2013) (citing 28 U.S.C.

§ 2679(b)(1)). Once a suit is brought against a federal

employee, the Attorney General can certify “that the defendant

employee was acting within the scope of his office or

employment at the time of the incident out of which the claim

arose” and substitute the United States for the individual

defendant. 28 U.S.C. § 2679(d)(1)-(2).1 Thus, federal

employees are shielded from personal tort liability for conduct

on the job, and the federal government steps in to protect them

from the burden of defending a lawsuit. See Osborn, 549 U.S.

at 248, 252. If that lawsuit is pending in state court, it is then

removed to federal district court, with the United States

substituting for its employee. 28 U.S.C. § 2679(d)(2).

That is not to say the Attorney General’s decision to

certify under the Westfall Act is wholly unreviewable. While

1

The first subsection of § 2679(d) addresses certification and

substitution in a case originally filed in federal district court,

while the second subsection addresses removal, as well as

certification and substitution, in a case originally filed in state

court. The language regarding certification and substitution in

each subsection is almost identical: “Upon certification by the

Attorney General that the defendant employee was acting

within the scope of his office or employment at the time of the

incident out of which the claim arose, any civil action or

proceeding commenced upon such claim . . . shall be deemed

[to be] an action against the United States . . . and the United

States shall be substituted as the party defendant.” 28 U.S.C.

§ 2679(d)(1)-(2). The subsection on removal also provides

that the “certification of the Attorney General shall

conclusively establish scope of office or employment for

purposes of removal.” Id. § 2679(d)(2).

9

the Attorney General’s certification “conclusively

establish[es] scope of office or employment for purposes of

removal,” id. (emphasis added), it does not definitively resolve

the issue of substitution, see Osborn, 549 U.S. at 252. In fact,

“[s]ection 2679(d)(2) does not preclude a district court from

resubstituting the federal official as defendant . . . if the court

determines, postremoval, that the Attorney General’s

scope-of-employment certification was incorrect.” Id. at 242.

Certification merely provides “prima facie evidence that the

employee’s challenged conduct was within the scope of

employment.” Schrob v. Catterson, 967 F.2d 929, 935 (3d Cir.

1992) (collecting cases). So, the district court is ultimately

tasked with confirming that substitution is appropriate. See

Osborn, 549 U.S. at 252.

In doing so, the district court must assure itself (1) that

the individual defendant is an “[e]mployee of the government”

as defined by the FTCA, see 28 U.S.C. § 2671,2 and (2) that

the alleged tort occurred within the scope of that defendant’s

employment—which is a question of state law, CNA v. United

States, 535 F.3d 132, 138 (3d Cir. 2008). The district court can

also authorize limited discovery into those issues if necessary,

but it is not required to do so when the material facts are not

disputed. See infra Section III.E.

If a defendant is not a covered employee or was acting

“beyond the scope of his employment,” the suit proceeds

against the original, individual defendant under traditional tort

principles. Osborn, 549 U.S. at 231. But, if the court is

2

The Westfall Act incorporates the FTCA’s definition of

government employee. See Carroll v. Trump, 49 F.4th 759,

767 (2d Cir. 2022).

10

satisfied that the requirements for substitution are met, the case

instead proceeds against the United States, subject to the

FTCA’s waiver of sovereign immunity. Of course, there are

exclusions from that waiver that “preclude[] recovery against

the Government,” United States v. Smith, 499 U.S. 160, 165

(1991), and if one of those exclusions covers the particular tort

at issue, the district court must dismiss the suit, leaving the

plaintiff “without a tort action against any party,” Lamagno,

515 U.S. at 420; see also Smith, 499 U.S. at 165.

As relevant here, the FTCA expressly excludes

defamation claims from the federal government’s immunity

waiver,3 which is why—notwithstanding the FTCA’s waiver

of sovereign immunity for many other torts—the

Government’s substitution doomed DiLella and Giordano’s

case in the District Court. See 28 U.S.C. § 2680(h). But

DiLella and Giordano argue that substitution was improper in

the first place because the Defendants were not

(1) “[e]mployee[s] of the government,” id. § 2671, who

(2) were acting within the scope of their employment. We

address these arguments in turn.

B. The Hallmarks of a Federal Agency Under the

FTCA and Westfall Act

Despite Congress’s desire to protect federal employees,

the FTCA and Westfall Act were “never intended” to apply to

3

The FTCA does not waive sovereign immunity as to claims

“arising out of . . . libel, slander, misrepresentation, deceit, or

interference with contract rights.” 28 U.S.C. § 2680(h); see

also Brumfield v Sanders, 232 F.3d 376, 383 (3d Cir. 2000)

(“[T]he defamation exception to the FTCA [can]not be avoided

by ‘attaching a different label to the tort.’” (citation omitted)).

11

employees of “all federally funded programs.” Orleans, 425

U.S. at 813 (emphasis added). Instead, these statutes apply

only to “[e]mployee[s] of the government,” as defined by 28

U.S.C. § 2671. Of the several categories of federal workers

included in that definition, only two potentially cover members

of the Commission: “officers or employees of any federal

agency” and “persons acting on behalf of a federal agency in

an official capacity, temporarily or permanently in the service

of the United States, whether with or without compensation.”4

28 U.S.C. § 2671. Either definition requires the existence of a

“federal agency.” So, before we can decide whether the

Defendants are covered by the Westfall Act, we must

determine if their employer, the Commission, is a federal

agency. We thus consider (1) the statutory definition of a

federal agency and (2) caselaw interpreting that definition,

before (3) distilling from that case law the indicia of a federal

agency under § 2671.

1. The Statutory Definition

As with any question of statutory interpretation, we start

with the text. See Pellegrino v. U.S. Transp. Sec. Admin., Div.

of Dep’t of Homeland Sec., 937 F.3d 164, 170 (3d Cir. 2019)

(en banc). The Westfall Act states that “federal agency”:

4

The full definition “includes (1) officers or employees of any

federal agency, members of the military or naval forces of the

United States, members of the National Guard while engaged

in training or duty . . . and persons acting on behalf of a federal

agency in an official capacity, temporarily or permanently in

the service of the United States, whether with or without

compensation, and (2) any officer or employee of a Federal

public defender organization . . . .” 28 U.S.C. § 2671.

12

includes the executive departments, the judicial

and legislative branches, the military

departments, independent establishments of the

United States, and corporations primarily acting

as instrumentalities or agencies of the United

States, but does not include any contractor with

the United States.

28 U.S.C. § 2671.5 As our sister circuits have also observed,

Congress’s use of the word “includes” indicates that § 2671’s

enumerated list is illustrative, not exhaustive.6 See Carroll, 49

F.4th at 768-69; Talignani v. United States, 26 F.4th 379, 382

(7th Cir. 2022); United States v. LePatourel, 571 F.2d 405, 408

(8th Cir. 1978). So, what follows “includes” are examples of

entities fitting the category of a “federal agency,” but after that

5

While this definition is specific to the FTCA, Congress

defined “agency” more generally elsewhere in Title 28 to

“include[] any department, independent establishment,

commission, administration, authority, board or bureau of the

United States or any corporation in which the United States has

a proprietary interest, unless the context shows that such term

was intended to be used in a more limited sense.” 28 U.S.C.

§ 451. The lists in both provisions indicate that many types of

organizations may qualify as agencies.

6

Notably, the Supreme Court recognized the significance of

“includes” as illustrative shortly before Congress enacted the

FTCA in 1946, see Fed. Land Bank of St. Paul v. Bismarck

Lumber Co., 314 U.S. 95, 100 (1941); Groman v. Comm’r of

Internal Revenue, 302 U.S. 82, 86 (1937), making it

“particularly probative” of § 2671’s original meaning. See

Carroll, 49 F.4th at 769 n.7.

13

non-exhaustive list comes an example of an entity outside that

category, namely, “any contractor.” 28 U.S.C. § 2671.

On which side of that line is the Commission? It

obviously is not an “executive department[],” a “judicial or

legislative branch[],” or a “military department[].” Id. Nor

does any party suggest it is a corporation. So is it an

“independent establishment[] of the United States,” id., or—

because § 2671 is illustrative, not exhaustive—something

comparable?

By its terms, an “independent establishment[] of the

United States” is an institution,7 separate and apart from the

three branches of government or the military,8 yet still “of the

7

See Establishment, Black’s Law Dictionary (3d ed. 1933)

(“Institution, place where conducted and equipment; industrial

plant and appurtenances; place of business and fixtures;

residence with grounds, furniture, equipage, etc.”).

8

See Independent, Black’s Law Dictionary (3d ed. 1933) (“Not

dependent; not subject to control, restriction, modification, or

limitation from a given outside source.”). Though executive

agencies have often been described as “independent” in that

their leadership historically has been insulated from executive

removal, see, e.g., Seila L. LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197, 204-06 (2020); Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477, 483 (2010). But cf. Trump

v. Slaughter, No. 25-332, 2025 WL 2692050 (2025) (granting

certiorari to decide whether Humphrey’s Executor v. United

States, 295 U.S. 602 (1935), should be overruled); Trump v.

Wilcox, 145 S. Ct. 1415, 1420 (2025) (Kagan, J., dissenting)

(“[T]he majority all but declares Humphrey’s itself the

14

United States”—i.e., belonging to the federal government. Cf.

Of, Black’s Law Dictionary (3d ed. 1933) (indicating “origin,

source, descent, and the like” or “[a]ssociated with or

connected with”). Consistent with this understanding,

Congress has, from time to time, used the term “independent

establishment” when creating a discrete government entity for

a specific purpose, like the National Center for Productivity

and Quality of Working Life, see 15 U.S.C. § 2411, or the

Armed Forces Retirement Home, see 24 U.S.C. § 411, that do

not fall within an existing department.9 But what are the

distinctive features of such entities? How are they, or, for that

matter, “corporations primarily acting as instrumentalities or

agencies of the United States,” 28 U.S.C. § 2671,

distinguishable from state or local agencies that have federal

funding and oversight, or from “contractor[s] with the United

States” that are also independent of the other branches yet

authorized to act on behalf of the federal government? We

look to precedent for answers.

emergency.”), we are unaware of any cases that designate such

agencies “independent establishments” instead of “executive

departments” for purposes of § 2671.

9

Cf. 5 U.S.C. § 104 (defining “independent establishment” as

“an establishment in the executive branch (other than the

United States Postal Service or the Postal Regulatory

Commission) which is not an Executive department, military

department, Government corporation, or part thereof, or part of

an independent establishment”); Am. Foreign Serv. Ass’n v.

Trump, 768 F. Supp. 3d. 6, 12 (D.D.C. 2025) (observing that

the “Foreign Affairs Reform and Restructuring

Act . . . recognized USAID as an ‘independent establishment’

outside of [the State] Department” under 5 U.S.C. § 104).

15

2. Case Law Distinguishing Federal

Agencies

Although the Supreme Court has not explicitly defined

“federal agency” in the context of the FTCA and Westfall Act,

a common theme emerges from its precedent attempting to

draw lines between federal agencies and outside entities: The

distinguishing feature of a federal agency for purposes of the

FCTA and Westfall Act is the federal government’s level of

control over the organization. We briefly survey that case law

to discern which aspects of federal control have carried most

significance.

The Supreme Court first confronted this issue in

Maryland ex rel. Levin v. United States, a case arising from our

Circuit, which addressed whether National Guard members

who were not on active duty qualified as federal employees for

purposes of the FTCA. 381 U.S. 41, 46, 48, amended by, 382

U.S. 159 (1965). We had previously distinguished between

Guardsmen who were activated into federal service and those

who were not to determine whether the federal or state

government exercised control over the individual. Compare

O’Toole v. United States, 206 F.2d 912, 915 (3d Cir. 1953)

(holding that a Guardsman on federal orders was a federal

employee when there was “a direct chain of control and

command from the President through the Guard’s commanding

general to the enlisted members”), with Maryland ex rel. Levin

v. United States, 329 F.2d 722, 729 (3d Cir. 1964) (holding that

a Guardsman, when not federally activated, “was an employee

of the State of Maryland” because he was ultimately “subject

to the supervision and control . . . of [Maryland’s] Adjutant

General”), aff’d, 381 U.S. 41 (1965), amended by, 382 U.S.

159 (1965).

16

The Supreme Court agreed with that distinction.

Maryland, 381 U.S. at 52-53. The Court considered federal

funding and regulatory requirements to be relevant, but not

dispositive. Id. at 48. Despite the fact that the Guardsmen

were paid from federal funds and followed federal

requirements, the Court viewed intervening control by the state

as the key determinative factor.10 Id. Because the Department

of Defense treated certain civilian personnel as state employees

and the state exercised “supervision” over both military and

civilian National Guard members, the Court held them to be

“employee[s] of the State of Maryland,” not the federal

government. Id. at 46; see also id. at 53.

Later, in Logue v. United States, the Court examined the

line between private contractors and federal agencies,

observing that the FTCA’s definition of the latter incorporates

the traditional tort-law distinction between contractors and

employees. 412 U.S. 521, 527-28 (1973). Looking to the

traditional criterion of “authority” to control the contractor’s

“detailed physical performance,” id., the Court held that

employees of a county jail contracted by the Federal Bureau of

Prisons were not “employee[s] of the [g]overnment” for whom

the United States was liable under the FTCA, id. at 526. Again,

local operational control and oversight trumped federal

funding and regulatory requirements: Even though the county

was required to comply with Bureau of Prisons regulations, the

BOP did not supervise the facility or employees. In short, the

10

Maryland ex rel. Levin v. United States, 381 U.S. 41 (1965),

amended by, 382 U.S. 159 (1965), predated an amendment to

the FTCA that classified National Guard members as

employees of the federal government. See 28 U.S.C. § 2671.

That definition of employee has since expanded further.

17

facility was not a federal agency because “day-to-day

operations of the contractor’s facilities were to be in the hands

of the contractor,” not the federal government. Id. at 529.

In United States v. Orleans, the Court expanded

Logue’s holding beyond the contractor exception, once again

focusing on control as the key factor in distinguishing federal

agencies from other entities.11 Formation and purpose, as well

as governance and operational control, took precedence over

funding in Orleans when the Court was asked “whether a

community action agency funded under the Economic

Opportunity Act of 1964 is a federal instrumentality or agency”

under the FTCA. 425 U.S. at 809.

Recognizing that the distinction between a contractor

and an agency is informed by “well-established concepts of

master and servant relationships” in common law, id. at 820;

see also id. at 815 n.4, the Court once again held that the

“critical element,” id. at 814, was not whether the entity

received federal funds or was subject to federal regulation, but

“whether or not there was day-to-day [federal] control of a

program,” id. at 816 n.5; see also id. at 815. It observed that a

community action agency was either a “State or political

subdivision of a State . . . or a public or private nonprofit

agency or organization which has been designated by a State

or such a political subdivision,” id. at 809 (alteration in

original) (citation omitted), even if it was “created for the

11

The Supreme Court has also imported the idea of day-to-day

control in other areas, observing that “characterizing an entity

as ‘federal’ for some purpose . . . require[s] a threshold

showing of substantial federal supervision of the private

activities.” Forsham v. Harris, 445 U.S. 169, 180 n.11 (1980).

18

purpose of carrying out the community action programs

contained in the Economic Opportunity Act of 1964,” id. at

811.

And the Court noted that these entities were “to be

administered by a community action board composed of local

officials,” while employees of the federal Office of Economic

Opportunity were barred from serving on the board. Id. at 817

(emphasis in original). Considering these factors, the Court

concluded that even though “the Federal Government

suppl[ied] financial aid, advice, and oversight . . . to assure that

federal funds not be diverted to unauthorized purposes,” id. at

818, these entities were “not federal agencies or

instrumentalities, nor [we]re their employees federal

employees within the meaning of the Federal Tort Claims

Act,” id. at 819.

We, in turn, have applied these teachings in our own

caselaw, treating federal control over an entity as the key

inquiry. In Gibson v. United States, for example, we

characterized Orleans and Logue as focusing on federal

“operational control,” and we determined that the United States

could not be held vicariously liable under the FTCA for a

federal contractor running a federal job corps center when it

did not control the center’s “day-to-day” operations. 567 F.2d

1237, 1240-42 & n.8 (3d Cir. 1977); see also Norman v. United

States, 111 F.3d 356, 357 (3d Cir. 1997) (recognizing that

federal control is the critical distinguishing factor between

federal-agency employees and independent contractors). Our

sister circuits have likewise relied on Maryland, Logue,

Orleans and their progeny in distinguishing contractors and

19

other entities from agencies, based on the federal government’s

authority to exert control over an organization.12

Having determined that federal control is the

distinguishing feature of a federal agency, we next consider the

characteristics indicative of that control.

3. Indicia of Federal Control

Despite clarifying that control is the key inquiry, our

precedent does not delineate the characteristics that evince the

requisite federal control. Depending on the nature of the entity,

control may look quite different. On the one hand, looking for

“day-to-day” control is, to some extent, a familiar inquiry when

determining whether a seemingly private or local entity is a

federal agency because, although many such organizations

12

See, e.g., Kuntz v. Lamar Corp., 385 F.3d 1177, 1184-85 (9th

Cir. 2004) (distinguishing an electrical cooperative from a

federal agency); Berkman v. United States, 957 F.2d 108, 114

(4th Cir. 1992) (distinguishing a contractor working with the

Federal Aviation Administration from an agency); Mendrala

v. Crown Mortg. Co., 955 F.2d 1132, 1135-38, 1142-43 (7th

Cir. 1992) (concluding that the Federal Home Loan Mortgage

Corporation was not a corporation “primarily acting as [an]

instrumentalit[y] or agenc[y] of the United States”); Lewis v.

United States, 680 F.2d 1239, 1240-41 (9th Cir. 1982)

(distinguishing a Federal Reserve Bank from agencies);

Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian

Inst., 566 F.2d 289, 296 & n.6 (D.C. Cir. 1977) (determining

that the Smithsonian is a federal agency); Pearl v. United

States, 230 F.2d 243, 245 (10th Cir. 1956) (looking to control

to determine whether a corporation was “primarily acting as

(an) instrumentality of the United States”).

20

perform federal functions, “traditional agency principles”

dictate that federal tort liability—and immunity—“depends

upon the principal’s ability to control the actions of his

agent.”13 Lewis v. United States, 680 F.2d 1239, 1243 (9th Cir.

1982). On the other hand, “day-to-day” control is an awkward

fit for entities such as Congress, the courts, and cabinet

departments—all of which are clearly agencies under the

FTCA’s definition—because those organizations are part and

parcel of the federal government, not a third party over which

the federal government has reached out to exert control. But,

of course, those entities, housed within the federal

bureaucracy, are still subject to the government’s control and

corresponding FTCA liability. See Vincent v. United States,

513 F.2d 1296, 1297 (8th Cir. 1975) (recognizing a difference

between entities that are not “separate and distinct from the

United States” and those that federal control transforms into

agencies under the FTCA).

So federal control is always the yardstick, but as control

may manifest differently depending on the organization, courts

consider a variety of factors. Some of our sister circuits have

attempted to catalogue them. For example, drawing on

13

For example, the community action agency addressed in

Orleans was not a federal entity but instead a “State or political

subdivision of a State . . . or a public or private nonprofit

agency or organization.” United States v. Orleans, 425 U.S.

807, 809 (1976) (alteration in original) (quoting 42 U.S.C.

§ 2790(a)). Federal grant funding and regulation were not

enough to transform these local entities into federal agencies.

Likewise, in Logue, Maryland, and Gibson, the entities in

question were not federally controlled because there was some

intervening level of supervision—either private or state.

21

Maryland, Logue, Orleans, and their progeny, the Seventh

Circuit examines “(1) the federal government’s ownership

interest in the entity; (2) federal government control over the

entity’s activities; (3) the entity’s structure; (4) government

involvement in the entity’s finances; and (5) the entity’s

function or mission.” Mendrala v. Crown Mortg. Co., 955

F.2d 1132, 1136 (7th Cir. 1992). The D.C. Circuit, in assessing

whether the Smithsonian was an FTCA agency, observed that

the “nature of its function as a national museum and center of

scholarship, coupled with the substantial governmental role in

funding and oversight” made that institution an “independent

establishment[] of the United States” under the FTCA.

Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian

Inst., 566 F.2d 289, 296 (D.C. Cir. 1977). And the Ninth

Circuit likewise observed that, in addition to “the critical factor

[of] the existence of federal government control over the

‘detailed physical performance’ and ‘day to day operation’” of

the organization, Lewis, 680 F.2d at 1240-41 (quoting Orleans,

425 U.S. at 814; Logue, 412 U.S. at 528), relevant factors

include “whether the entity is an independent corporation,

whether the government is involved in the entity’s finances,

and whether the mission of the entity furthers the policy of the

United States,” id. (citations omitted); see also Pearl v. United

States, 230 F.2d 243, 245 (10th Cir. 1956) (considering federal

ownership and financial oversight of a federally chartered

corporation).

Although we have not previously articulated a specific

test for federal control under the FTCA and Westfall Act, we

have done so in analogous contexts. See, e.g., Staten v. Hous.

Auth. of Pittsburgh, 638 F.2d 599, 602-04 (3d Cir. 1980)

(assessing whether a state housing authority was a federal

agency for purposes of the Civil Rights Attorney’s Fees

22

Awards Act of 1976). In particular, when evaluating which

entities are entitled to Eleventh Amendment immunity, we

perform a fact-intensive, individualized inquiry, asking three

basic questions: (1) “whether the state treasury is legally

responsible for an adverse judgment entered against the alleged

arm of the State;” (2) “whether the entity is treated as an arm

of the State under state case law and statutes;” and

(3) “whether, based largely on the structure of its internal

governance, the entity retains significant autonomy from state

control.” Maliandi v. Montclair State Univ., 845 F.3d 77, 83

(3d Cir. 2016).

The first of these begs the question we are attempting to

answer today—whether the federal government is on the hook

for the judgment.14 But the second is more relevant,

14

DiLella and Giordano point out that, unlike in some other

enabling acts, Congress did not expressly state that the

Commission is subject to the FTCA in the Commission Act,

and would have us attach significance to this fact to the extent

it incorporates the question of whether “the State has expressly

immunized itself from the entity’s liabilities.” See Maliandi v.

Montclair State Univ., 845 F.3d 77, 90 (3d Cir. 2016). We

decline to do so. After all, “[n]ot every silence is pregnant.”

Mendrala, 955 F.2d 1135 (alteration in original) (citation

omitted); see also id. at 1135-36 (rejecting a similar argument

that Congress’s failure to expressly designate the FHLMC as a

federal agency resolved the question of FTCA immunity and

instead analyzing it under a five-part test). True, if Congress

chooses to, it may expressly immunize a particular

organization under the FTCA. See, e.g., National Gambling

Impact Study Commission Act, 18 U.S.C. § 1955 note, § 6(e);

23

encompassing “how state law treats the agency generally,

whether the entity is separately incorporated, whether the

agency can sue or be sued in its own right, . . . whether it is

immune from state taxation[,] . . . the entity’s authority to

exercise the power of eminent domain, application of state

administrative procedure and civil service laws to the entity,

the entity’s ability to enter contracts and make purchases on its

own behalf, and whether the entity owns its own real estate.”

Id. at 91 (quoting Fitchik v. N.J. Transit Rail Operations, Inc.,

873 F.2d 655, 659 (3d Cir. 1989)). Each of these inquiries

evinces the sovereign’s control over and relationship with an

Commission on the Advancement of Women and Minorities in

Science, Engineering, and Technology Development Act, 42

U.S.C. § 1885a note, § 5(i). But such an affirmation is not

required, and Congress itself has attempted to foreclose this

argument: In one of the very acts cited by DiLella and

Giordano, Congress made explicit that its affirmation “shall

not be construed to imply that any commission is not a ‘Federal

agency’ or that any of the members or personnel of a

commission is not an ‘employee of the Government’” under

the FTCA and Westfall Act. Pub. L. No. 105-30, § 2, 111 Stat.

248 (1997) (amending the National Gambling Impact Study

Commission Act). Granted, Congress included that statement

on construction in an amendment, which DiLella and Giordano

take to mean that an otherwise silent law does not grant FTCA

immunity. But it is well settled that Congress may amend in

order to clarify, rather than change, a law. See, e.g., Brown v.

Thompson, 374 F.3d 253, 259 (4th Cir. 2004). Ultimately,

DiLella and Giordano fail to explain why we must interpret a

close-in-time amendment specifying the proper construction as

a change, rather than a clarification, and apply that

interpretation here.

24

organization. And the third factor is directly relevant to

control: the “entity’s governing structure and the oversight and

control exerted by a State’s governor and legislature.” Id. at

96; see also id. at 96-97. These last two considerations can

help guide our inquiry here.

Recognizing that in each instance, we are faced with a

fact-intensive inquiry, we distill from the caselaw and our

Eleventh Amendment test four guiding factors that evince

federal control sufficient to identify a federal agency under the

FTCA and Westfall Act: (1) formation and purpose,

(2) governance, (3) financial oversight, and (4) operational

control. Each factor should be considered, but—as the critical

distinguishing line between federal agencies and other

organizations is the federal government’s power to exert

day-to-day operational control—the fourth factor is the most

weighty.

First, we consider whether Congress or the executive

created an entity and housed it within the federal government,

or whether the organization is local or private in nature. See,

e.g., Orleans, 425 U.S. at 816-17; Mendrala, 955 F.2d at

1138-39; Lewis, 680 F.2d at 1241; Goddard v. D.C.

Redevelopment Land Agency, 287 F.2d 343, 345 (D.C. Cir.

1961). Does the enabling act direct states or municipalities to

create organizations to form a specific function, see Orleans,

425 U.S. at 817, or does it act directly to form a federal

creature? When an organization is formed by, housed under,

or otherwise supervised by state, local, or private authority, it

is less likely to be a federal agency without a clear showing of

day-to-day federal control. See, e.g., id. at 816 (observing that

the community action agencies were “local, not . . . federal,

enterprise[s]”); Lewis, 680 F.2d at 1241 (observing that

25

Federal Reserve Banks, “though heavily regulated, are locally

controlled by their member banks”); cf. Harris v. Boreham,

233 F.2d 110, 115-16 (3d Cir. 1956) (holding that a municipal

employee was not transformed into a federal employee, even

though he was appointed by the Secretary of Interior and paid

from federally appropriated funds). As part of this inquiry,

courts can look to whether the entity was formed for a national

or local purpose. Compare Orleans, 425 U.S. at 816 (local),

with Expeditions Unlimited, 566 F.2d at 296 (national).15

Second, we ask who is leading the organization and how

they are selected, employed, and, if applicable, removed.

Specific inquiries here include whether some or all of the

leadership consists of, or is appointed and removed by, the

federal government. The more that an entity’s board and

executive suite are staffed or appointed by members of the

federal government, the closer the relationship with the federal

government, while state, local, or private leadership, or

15

The Ninth Circuit has suggested that courts should consider

“whether the mission of the entity furthers the policy of the

United States,” Lewis, 680 F.2d at 1240-41, but we view that

inquiry as too broad. When Congress directs states to create

local agencies through grants, such as in Orleans, this too,

fulfills a federal policy interest. See 425 U.S. at 817. The

purpose of considering an entity’s mission is that it sheds light

on whether the agency is functioning as a federal arm, see

Goddard v. D.C. Redevelopment Land Agency, 287 F.2d 343,

345 (D.C. Cir. 1961), or whether a source of local control

intervenes in exercising a local purpose, see Orleans, 425 U.S.

at 816. Though it may be less likely that an organization

formed for a local purpose will be a federal agency, it is not

impossible. See Goddard, 287 F.2d at 345.

26

intercession by state, local, or private decision-makers, suggest

the opposite.16 Supervision and removability of leadership by

the federal government is also indicative of federal control, as

is the ultimate ownership of the entity.

Third, we look for specific federal financial oversight or

involvement, as opposed to private, state, or local funding.

16

See Mendrala, 955 F.2d at 1138 & n.7 (comparing the FDIC

board, which “consists of the Comptroller of the Currency, the

Director of the Office of Thrift Supervision and three members

appointed by the President” with FHLMC’s board, controlled

by “private shareholders,” with only a minority being

presidentially appointed). Compare Expeditions Unlimited,

566 F.2d at 296 n.5 (observing that “[e]ight of the seventeen

Regents of the [Smithsonian] acquire their positions by virtue

of holding other high positions in the federal government” and

the remainder “are appointed by joint resolution of Congress”),

with Orleans, 425 U.S. at 817 (“[T]he Economic Opportunity

Act provides that a community action agency is to be

administered by a community action board composed of local

officials, representatives of the poor and members of business,

labor, and other groups in the community; no employee of the

OEO can serve on the board.” (emphasis in original) (citation

omitted)); compare Maliandi, 845 F.3d at 97-98, and Bowers

v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 548-49 (3d

Cir. 2007) (determining that the presence of

state-government-appointed and removable board members

indicated state control), with Kovats v. Rutgers, The State

Univ., 822 F.2d 1303, 1311 (3d Cir. 1987) (determining, for

purposes of whether state sovereign immunity applied, that the

presence of non-gubernatorially appointed board members

indicated autonomy).

27

Compare O’Toole, 206 F.2d at 915, with Logue, 412 U.S. at

528-29, and Maryland, 329 F.2d at 729. At the same time, the

mere existence of federal financial backing does not tip the

scales. See Orleans, 425 U.S. at 816; cf. Forsham, 445 U.S. at

180 (“Grants of federal funds generally do not . . . serve to

convert the acts of the recipient from private acts to

governmental acts absent extensive, detailed, and virtually

day-to-day supervision.”). As the Supreme Court has

observed, the federal government regulates a myriad of

organizations through “gifts, grants, contracts, or loans,” but

“[i]t is inconceivable that Congress intended to have waiver of

sovereign immunity follow congressional largesse.” Orleans,

425 U.S. at 816; see also Pearl, 230 F.2d at 245 (noting that

federal control over the Civil Air Patrol was “only such as is

common to virtually all private corporations granted federal

charters”).

Rather, the relevant inquiry is whether the funding

arrangement reveals a close relationship with the federal

government. As demonstrated by Orleans, pairing funding

with “advice[] and oversight only to assure that federal funds

not be diverted to unauthorized purposes” is not enough to

convert a contractor into an agency. 425 U.S. at 818; cf.

Forsham, 445 U.S. at 180 n.11. Likewise, in Staten v. Housing

Authority of Pittsburgh, in determining that a state housing

authority was not a federal agency for purposes of the Civil

Rights Attorney’s Fees Awards Act of 1976, we considered the

existence of federal funding, but noted that the state housing

authority, not the federal government had “exclusive control

over the federal grant funds,” tipping the scales against finding

it a federal agency. 638 F.2d at 604. On the sliding scale, the

government’s authority to oversee funds demonstrates more

control, and direct appropriations from Congress evince a

28

particularly close tie to the federal government. See Goddard,

287 F.2d at 345 (noting that appropriations supported a

determination that the District of Columbia Redevelopment

Land Agency was a federal agency under the FTCA);

Expeditions Unlimited, 566 F.2d at 296 n.4 (noting that the

Smithsonian was 75 percent funded by appropriations); see

also Mendrala, 955 F.2d at 1138 (recognizing lack of

appropriations); Lewis, 680 F.2d at 1242 (same).

In addition, close regulation and financial oversight

may indicate government control. Relevant considerations

include annual audits by the Government Accountability

Office (GAO) or a similar entity, Pearl, 230 F.2d 245, and

requirements about who can prepare a budget, Maliandi, 845

F.3d at 97. The dividing line is between these closely regulated

and supervised entities, and those—like the Civil Air Patrol—

whose level of regulation and supervision is “common to

virtually all private corporations granted federal charters.”

Pearl, 230 F.2d at 245.

Fourth, and most importantly, courts consider evidence

of day-to-day operational control. Much like in the funding

context, the fact that an organization is subject to regulation or

must meet federal standards is not enough, because such

requirements are common to many non-agencies. See Orleans,

425 U.S. at 815; Leone v. United States, 910 F.2d 46, 50 (2d

Cir. 1990); Mendrala, 955 F.2d at 1138. Instead, we look at

relationships with federal agencies and leadership, federal

ownership,17 federal reporting, tax status, application of

administrative-procedure laws, and any other indicia of federal

17

This factor is of particular importance when looking at a

corporation. See Mendrala, 955 F.2d at 1138.

29

supervision. Mendrala, 955 F.2d at 1138; Pearl, 230 F.2d at

245; cf. Maliandi, 845 F.3d at 91 (quoting Fitchik, 873 F.2d at

659). For example, the federal government may exert control

over how an organization hires and governs employees by

applying civil-service laws and employee programs that are not

generally applicable, such as federal retirement programs,

travel reimbursement, employment protections, ethics rules, or

salary scales. See Lewis, 680 F.2d at 1241; Maliandi, 845 F.3d

at 97. Likewise, requirements of adherence to procurement

regulations—which may overlap somewhat with financial

oversight—are also indicative of federal control. See

Maliandi, 845 F.3d at 97. Even a factor as mundane as the

number and location of meetings may be relevant. Id. Simply

put, the ability to “determine the general policies that govern

the operations” of an organization is day-to-day control.

Mendrala, 955 F.2d at 1138 (citation omitted).

In contrast, the ability of non-federal authorities to

intercede in decision-making demonstrates a weakened federal

grasp, as does the power for an entity to act independently—

such as owning its own property. See Lewis, 680 F.2d at

1241-42; Maliandi, 845 F.3d at 96-97. For example, the ability

of a Federal Reserve Bank to set interest rates charged to

member banks “without day to day direction” on such core

policy matters also militated against status as a federal agency.

Lewis, 680 F.2d at 1241. In essence, the organization’s

freedom to maneuver on its own when it comes to logistical

and administrative matters is a key determinant of control.

In sum, an organization’s federal-agency status will be

clear in many cases, but to decide whether the FTCA and

Westfall Act apply when that status is not clear, we look to the

level of federal control, weighing the entity’s formation and

30

purpose, governance, financial oversight, and day-to-day

operational control. Having identified the relevant factors, we

now apply them to the Commission.

C. The Commission Is a Federal Agency

The Commission fits neatly into the FTCA’s definition

of federal agency as an independent establishment, with each

of the four federal-control factors favoring that status, though

some more strongly than others.

1. Formation and Purpose

The Commission was created by Congress to act as a

planning committee and liaison to the federal government for

the Nation’s 250th anniversary celebrations—a

quintessentially federal purpose. Although it promotes, not

just federal but also local, state, and international “activities,”

Congress designed the Commission to have national scope and

to coordinate among federal and non-federal entities alike.

Commission Act §§ 2(b), 4(a), 5(a), (e). Congress contrasted

the Commission’s task of “prepar[ing] an overall program”

with “plans and programs developed by State, local, and

private groups,” and named the Commission as the “point of

contact of the Federal Government for all State, local,

international, and private sector initiatives.” Id. § 5(a), (b), (e).

This national coordination enterprise reflects a federal, rather

than local, undertaking. See Orleans, 425 U.S. at 816; see also

Expeditions Unlimited, 566 F.2d at 296. Unlike the

community action agencies in Orleans, there is no state or local

control whatsoever. See 425 U.S. at 809, 811.

The Commission is not housed within any existing

federal agency, but exists as a freestanding organization,

31

befitting an “independent establishment[]” under the FTCA.

28 U.S.C. § 2671. Tellingly, when discussing coordination

with federal agencies and use of the postal service,18 the Act

refers to “other federal agencies” and “other agencies of the

Federal Government,” further indicating that Congress

intended to set up the Commission as a federal entity. Id.

§§ 6(b), 7(c) (emphasis added).

Despite these indicia of federal purpose, DiLella and

Giordano attempt to draw a distinction between an entity with

a fixed lifespan like the Commission and a permanent entity,

such as the Smithsonian. But the D.C. Circuit in Expeditions

Unlimited did not remark on the Smithsonian’s permanence

when it determined that the FTCA applied. See generally 566

F.2d 289. Moreover, the Commission’s recommended

activities, which include the “development of . . . museums,”

Commission Act § 5(c)(2)(D), and its coordinating role in the

“encouragement . . . of scholarly works,” id. § 6(b)(3)(A) are

quite similar to the Smithsonian’s “function as a national

museum and center of scholarship,” Expeditions Unlimited,

566 F.2d at 296. So we see no basis to conclude that the

Commission’s temporary nature meaningfully distinguishes it

from the Smithsonian, or diminishes its national formation and

purpose.

In short, this factor strongly favors the Commission’s

status as a federal agency.

18

The Commission is authorized to use the “United States

mails in the same manner and under the same conditions as

other agencies of the Federal Government.” Commission Act

§ 7(c).

32

2. Governance

The Commission’s leadership structure also supports

that conclusion. It is made up of twenty-four voting

members—nearly half of whom are federal officials, and

high-ranking officials at that. They include four Senators, four

members of the House of Representatives, sixteen

private-citizen members, and twelve nonvoting ex officio

members—the Secretary of the Interior, the Secretary of State,

the Attorney General, the Secretary of Defense, the Secretary

of Education, the Librarian of Congress, the Secretary of the

Smithsonian Institution, the Archivist of the United States, the

National Endowment for the Arts chair, the National

Endowment for the Humanities chair, the Institute of Museum

and Library Services director, and the Chief Justice (or his

substitute). Commission Act § 4(b); see also Commission

Amendments Act § 2(a)(1) (altering the Commission’s

membership). That composition signals that the federal

government is steering the ship.

Even the private-citizen members have the imprimatur

of the federal government, as they are appointed by

congressional leadership and the chairperson is selected from

that pool by the President. See Commission Act § 4(b)(3).

True, the private-citizen Commissioners are insulated from

traditional federal oversight to the extent they are removable

only by the Commission—rather than an outside federal

authority. Commission Amendments Act § 2(a). Even then,

however, Congress controls how the Commission may

terminate a Commissioner—an internal Commission vote—

and requires “notice and approval of the relevant appointing

authority,” i.e., the particular member of Congress who

appointed the Commissioner. Id.

33

DiLella and Giordano also assert a difference between

the Smithsonian and the Commission in terms of governance,

but their argument actually confirms why the governance

factor favors the Commission’s status as a federal agency.

They point out that “there is no comparison,” Reply Br. 3,

between the two entities because “[e]ight of the seventeen

Regents of the [Smithsonian] acquire their positions by virtue

of holding other high positions in the federal government,”

Expeditions Unlimited, 566 F.2d at 296 n.5. Meanwhile, eight

of the twenty-four members of the Commission are members

of Congress, the sixteen private-citizen members are all

appointed by congressional leaders, and twelve non-voting

members are high-ranking federal officials. Commission Act

§ 4(b); Commission Amendments Act § 2. So, in fact, there is

little daylight between the Smithsonian—in DiLella and

Giordano’s view, a federal agency—and the Commission

when it comes to the governance factor.

Because the Commission is comprised entirely of

federal officials or individuals appointed by federal officials,

this factor also bolsters the case for federal control.

3. Financial Oversight

Because Congress both provides significant funding to

the Commission and oversees its spending through reporting

requirements, this factor, too, supports federal-agency status.

As for funding, although the Commission is authorized

to raise its own money, Commission Act §§ 7(e), 9, it has

overwhelmingly relied on Congress rather than grants or

contracts, receiving almost $50 million in direct congressional

34

appropriations,19 see Commission Amendments Act § 2(d), (f)

(authorizing appropriations). Those direct appropriations,

funneled into the coffers of the Commission, are a strong

indication of federal control. Compare Goddard, 287 F.2d at

345 (placing substantial weight on the fact that “the Agency

receives direct appropriations from Congress”), and

Expeditions Unlimited, 566 F.2d at 296 n.4 (“Approximately

75% of the Institution’s operating funds come from federal

appropriations.”), with Mendrala, 955 F.2d at 1138 (“[T]he

FHLMC receives no appropriations from Congress.”), and

Lewis, 680 F.2d at 1242 (similar). Thus, in contrast to Staten,

where the federal government provided funding but the state

housing authority had “exclusive control over the federal grant

funds,” here, Congress retains exclusive control over whether

the Commission receives appropriations. 638 F.2d at 604.

As to spending power, the Commission is bound by the

terms of the Commission Act, and the Commission’s finances

are controlled by the administrative secretariat—the nonprofit

organization hired by the Secretary of Interior. Commission

Act § 9(b). The Commission must also answer to the federal

government on its activities, including preparing a report for

the President, id. § 5(c), and sending annual reports with an

19

See Consolidated Appropriations Act, 2024, Pub. L. No.

118-42, 138 Stat. 25, 283; Consolidated Appropriations Act,

2023, Pub. L. No. 117-328, 136 Stat. 4459, 4819 (2022);

Consolidated Appropriations Act, 2022, Pub. L. No. 117-103,

136 Stat. 49, 408; Consolidated Appropriations Act, 2021, Pub.

L. No. 116-260, 134 Stat. 1182, 1483 (2020); Further

Consolidated Appropriations Act, 2020, Pub. L. No. 116-94,

133 Stat. 2534, 2692 (2019); Consolidated Appropriations Act,

2019, Pub. L. No. 116-6, 133 Stat. 13, 212.

35

accounting of funds to Congress, id. § 9(d). Although the

limited nature of this reporting may be more indicative of

general oversight, rather than operational control, see Pearl,

230 F.2d at 245 (noting that the Civil Air Patrol was merely

required to give Congress an annual report, a fact that

counseled against federal-agency status), that reporting, when

coupled with the direct appropriations and the extent of federal

funding, weighs in favor of federal control.

4. Day-to-Day Operational Control

The last factor we consider, the extent of federal control

over the entity’s day-to-day operations, clinches the

Commission’s character as a federal entity.

Although Congress gave the Commission some latitude

in carrying out its agenda, it also provided concrete federal

mandates that constrain that discretion. Key guardrails include

instructing the Commission to emphasize events in specific

“locations of historical significance,” Commission Act

§ 5(b)(2), prescribing the use of a time capsule and other

materials, id. § 7(f), (g), setting quorum requirements, id.

§ 4(e), and naming a date of termination, id. § 10.

Congress even directed the location of meetings,

initially mandating that all assemblies be held in Independence

Hall in Philadelphia and only later relaxing that requirement.

Id. § 4(d); Commission Amendments Act § 2(a). In specifying

not only what the Commission must do, but also how the

Commission must do it, the Commission Act assures

Congress’s continuing control over how the Commission

operates to commemorate the nation’s Semiquincentennial.

Cf. Maliandi, 845 F.3d at 97 (noting that state control over “the

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number and location of meetings allowed” indicated that a

university was an arm of the state).

That control is also apparent in the Commission’s

ownership interest (or lack thereof) in its own intellectual

property. While in existence, the Commission may acquire and

use property and has the “exclusive right” to use and license its

intellectual property. Commission Amendments Act § 2(d).

Upon its dissolution, however, that property will be used at the

direction of the Secretary of the Interior for the National Park

Service, or disposed of. Commission Act § 7(g); cf. Maliandi,

845 F.3d at 97 (treating the fact that a university “had to turn

over ownership of all patents and copyrights to the State” as

evidence that it was controlled by the state).

The Commission’s terms and conditions of

employment, on balance, likewise reflect federal control. On

one hand, the Commission Act allows the Chairperson to hire

and fire staff without regard to civil-service laws and to set

salaries for staff outside of certain federal restrictions.

Commission Act § 8(c)(1), 8(c)(3)(A). On the other hand, staff

salaries cannot exceed a federal threshold under the United

States Code, id. § 8(c)(3)(B); an outside “employee of the

Federal Government may be detailed to the Commission

without reimbursement” while maintaining their civil service

protections, id. § 8(d); and the Chairperson’s procurement of

temporary services is subject to federal payment limitations,

id. § 8(e). And although private-citizen Commissioners are

volunteers, they are reimbursed for travel expenses “at rates

authorized for an employee of an agency.” Id. § 8(a)-(b).

These attributes of federal employment cut in favor of

the Commission’s federal-agency status. So do the

Commission’s interactions with what the Commission Act

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tellingly calls “other federal agencies.” Id. § 6(b) (emphasis

added) (citation modified). The Commission Act specifies

coordination between the Commission and several entities, in

particular the Department of the Interior. Id. §§ 6, 7(b). For

example, the Commission Act requires the Secretary of the

Interior to conduct a study on preservation and development of

historic sites and battlefields. Id. § 6(b)(2). The Secretary

must then share that study with the Commission for inclusion

in its report to the President about how the nation should

commemorate the Semiquincentennial. Id. §§ 5(c), 6(b)(2).

Likewise, the leaders of the Library of Congress, the

Smithsonian, and the National Archives “shall cooperate with

the Commission” by helping to develop historical exhibits and

collections. Id. § 6(b)(3)(B). Officers of these federal entities,

too, must submit recommendations to the Commission for

inclusion in the report to the President. Id. § 6(b)(3)(C). All

in all, the level of close coordination and mandated cooperation

between the Commission and “other federal agencies” is

further evidence of day-to-day control by the federal

government. Id. § 6(b).

In short, the Commission’s day-to-day control—the

most weighty of the four factors—also lands on the

federal-agency side of the scale.

* * *

The upshot of our review is that all four factors reflect

the control over the Commission necessary to render it a

federal agency: It is congressionally created with a national

purpose; it is governed by federal leaders and appointees; it

receives significant appropriations and financial oversight

from Congress; and its day-to-day operations are either

38

directed by the Commission Act or controlled, directly or

indirectly, by Congress.

The Commission thus qualifies as a federal agency

under the FTCA and Westfall Act.

D. The Defendants Are Employees of the

Government

Given that the Commission is a federal agency, we must

next determine whether the Defendants qualify as employees

of the government under the FTCA and Westfall Act.

As relevant here, Section 2671’s broad definition of

“[e]mployee of the government” includes (1) “officers or

employees of any federal agency” and (2) “persons acting on

behalf of a federal agency in an official capacity,” either

“temporarily or permanently,” “with or without

compensation.” 28 U.S.C. § 2671. Once again, the statute’s

definition begins with the word “includes,” indicating that the

list is illustrative, rather than exhaustive. See Talignani, 26

F.4th at 382 (“[Section] 2671 does not necessarily contain

every instance in which a person is an ‘employee of the

Government.’”).

The existence of “officers or employees” as a

standalone category of personnel indicates that “persons acting

on behalf of a federal agency” sweeps in a distinct and broader

class of persons. Thus, a person may be “an ‘employee of the

government’ under § 2671 even though he [i]s not an

‘employee’ of a federal agency.” Logue, 412 U.S. at 530. By

way of example, elsewhere in the United States Code,

Congress has provided that certain volunteers and those

temporarily serving in federal positions qualify as

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“employee[s] of the government” for purposes of the FTCA.

See Talignani, 26 F.4th at 385 (collecting statutes); Pellegrino,

937 F.3d at 169, 171 (noting that a state or local law

enforcement officers who is deputized into federal service with

the Transportation Security Administration is treated as an

“[e]mployee of the government” under the FTCA); Provancial

v. United States, 454 F.2d 72, 75 (8th Cir. 1972) (recognizing

that local police officers deputized by the Department of

Interior were “employee[s] of the government”). The Supreme

Court, too, recognized the possibility that the definition may

encompass non-traditional employees, such as “the

‘dollar-a-year’ man who is in the service of the Government

without pay, or an employee of another employer who is placed

under direct supervision of a federal agency pursuant to

contract or other arrangement.” Logue, 412 U.S. at 531.

For today’s purposes, though, we need not demarcate

the outer bounds of an “[e]mployee of the government” under

§ 2671 or decide whether the Commissioners are best viewed

as “employees” or “persons acting on behalf of” the

Commission because, either way, the Commissioners fall

within the broad category envisioned by Congress. They are

federally appointed members of a federal agency who

voluntarily serve on the agency’s behalf and are subject to

oversight and removal by both the agency and their federal

appointers. The Defendants are thus “[e]mployee[s] of the

government.” 28 U.S.C. § 2671.

DiLella and Giordano object that, as private-citizen

Commissioners, the Defendants should not qualify because

they were “not . . . officer[s] or employee[s] of the Federal

Government” at the time of their appointments. Commission

Act § 3(2)(A). But whether someone is a private citizen before

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their appointment says nothing about their status after entering

federal service. Once on the Commission, the private-citizen

Commissioners meet the FTCA’s definition of an “[e]mployee

of the government.” 28 U.S.C. § 2671.

In sum, the District Court correctly concluded that the

Defendants meet the first of the two Westfall Act criteria. The

remaining question is whether their allegedly defamatory

statements were made within the scope of their employment,

or whether the District Court, before concluding they were,

should have permitted discovery on that issue.

E. The Defendants Were Acting Within the Scope

of Their Employment

To conclude that substitution was proper, and thus that

the Government’s sovereign immunity bars DiLella and

Giordano’s claims, the District Court needed to find that the

Defendants acted within the scope of their employment, as

applied under principles of state agency law. See Brumfield v.

Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (noting that, in the

Westfall Act context, whether “individual defendants acted

within the scope of their employment . . . is a matter

of . . . state law”).

Here, Pennsylvania law provides that “conduct is within

the scope of employment if, but only if: (a) it is the kind [the

employee] is employed to perform; (b) it occurs substantially

within the authorized time and space limits[; and] (c) it is

actuated, at least in part, by a purpose to serve the master.” See

CNA v. United States, 535 F.3d 132, 146 (3d Cir. 2008)

(alterations in original) (quoting Brumfield, 232 F.3d at 380).

As factual findings are sometimes needed to make those

assessments, see id. at 141, DiLella and Giordano argue that,

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even if the Defendants are federal employees, the District

Court abused its discretion in determining that they were acting

within the scope of their employment without first allowing

discovery.

As a general matter, there is no right to discovery in a

Westfall Act case. Certification “is prima facie evidence” that

the alleged tort occurred within the scope of a defendant’s

employment, and the plaintiff bears the burden to come

forward with specific facts to rebut the certification. Schrob,

967 F.2d at 935-36. But Westfall certification occurs at the

pleading stage, where the plaintiff’s contentions about the

defendant’s conduct are typically confined to the facts alleged

in the complaint. So, when there is reason to believe that the

Attorney General’s certification “is based on a different

understanding of the facts than is reflected in the complaint,”

we have encouraged district courts to “permit[] reasonable

discovery.” Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994).

On the other hand, “[p]ermitting additional discovery when the

Attorney General’s certification is not based on a different

understanding of the facts . . . would undermine the intent of

the Westfall Act to protect federal employees from responding

to state law tort claims.” Brumfield, 232 F.3d at 380 (quoting

Brumfield v. Sanders, 50 F. Supp. 2d 381, 385 (W.D. Pa.

1999)).

Here, the Government based its certification on two

sources: “[1] the complaint, as well as [2] materials prepared

in anticipation of litigation provided by staff of the United

States Attorney’s Office.” J.A. 209. For its part, the

complaint—which relies on statements that the Defendants

allegedly made in the letter purportedly from Congressman

Brady, in a Commission meeting, and in interactions with the

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press—supports the inference that the Defendants were acting

within the scope of their employment. But the Government

also relied on “materials prepared in anticipation of litigation,”

J.A. 209, which theoretically could have given the Attorney

General “a different understanding of the facts than is reflected

in the complaint,” Melo, 13 F.3d at 747, when he certified that

the Defendants were acting within the scope of their

employment. But speculation is not sufficient—a plaintiff still

must identify some reason to believe that the Attorney

General’s understanding of the facts differs from facts in the

complaint, and specify what discovery would show that

difference. Here, DiLella and Giordano do neither.

At argument, they were unable to articulate any

different understanding of the facts that might emerge from the

Attorney General’s “materials prepared in anticipation of

litigation,” J.A. 209, to identify what, if any, discovery they

would ask for on remand, or to explain how discovery would

help defeat certification. Nor is it apparent that discovery

would even be permissible, given that the materials appear

subject to work-product or attorney-client privilege.

We are left, then, with no indication that certification

was based on any “different understanding of the facts” than

that supported by the complaint, and we cannot say, in such

circumstances, that the District Court abused its discretion in

denying jurisdictional discovery. See Brumfield, 232 F.3d at

380 (identifying no abuse of discretion in similar

circumstances). To the contrary, “permitting additional

discovery” in these circumstances “would undermine the intent

of the Westfall Act,” id., and that result was properly rejected.

In the absence of any proffered evidence that certification was

based on different facts, or that any discovery would have

43

revealed a different understanding of the facts, we cannot say

that the District Court abused its discretion.

IV. Conclusion

For the foregoing reasons, the District Court’s judgment

will be affirmed.

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