Giordano v. Hohns, 2025 U.S. App. LEXIS 30115 (November 18, 2025) Krause, Circuit Judge.
Judges: Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges.
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 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.
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.
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.
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 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.
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.
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 revealed a different understanding of the facts, we cannot say that the District Court abused its discretion.
For the foregoing reasons, the District Court’s judgment will be affirmed.
• The Appellees are three members of the United States Semiquincentennial Commission, who made statements critical of the Commission’s then Chairman and Executive Director, the Appellants here.
• Those who asked to step down from the commission brought a tort action against the Defendants in the Court of Common Pleas in Philadelphia County.
• The Attorney General certified the case under the Westfall Act and removed the case to federal court.
• The case was dismissed on the basis of sovereign immunity.
• Giordano and DiLella argue their dismissal was error because the Defendants do not qualify as employees of the government and even if they did, their statements were not made in the course of their employment.
• The Third Circuit affirmed.
• This is a very good discussion of the history and function of the Westfall Act.
• The court also had a thorough discussion of when an agency is a government agency and when statements made are made in the course and scope of employment.
• The court will look at, among other things, finding arrangements and whether they reveal the close relationship of the federal government.
• Here the commission fits neatly into the Federal Tort Claims Act definition of federal agency as an independent establishment, with each of the four federal-control factors favoring that status.
