Frank Giordano; Daniel M. Dilella 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)

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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

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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)

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(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

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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

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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.

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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

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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

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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).

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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).

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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)).

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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.

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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.

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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

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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).

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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).

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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.

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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).

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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

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20
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”).

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21
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.

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22
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

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23
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);

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24
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.

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25
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

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26
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.

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27
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).

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28
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

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29
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.

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30
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

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31
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,

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32
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).

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33
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.

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34
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

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35
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.

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36
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

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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

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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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