Denise Evans v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1151
D ENISE EVANS ,
Plaintiff-Appellant,
v.
U NITED STATES OF A MERICA ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:22-cv-01627 — Gary Feinerman, Judge.
____________________
A RGUED D ECEMBER 1, 2023 — D ECIDED MARCH 13, 2025
____________________
Before WOOD,* ST . EVE, and LEE , Circuit Judges.
LEE , Circuit Judge. In this case, we are asked to decide
whether the savings provision in the Federal Employees Lia-
bility Reform and Tort Compensation Act of 1988 (commonly
* Circuit Judge Wood retired on May 1, 2024, and did not participate
in the decision of this opinion, which is being resolved under 28 U.S.C.
§ 46(d) by a quorum of the panel.

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2 No. 23-1151
known as the Westfall Act), 28 U.S.C. § 2679(d)(5), applies in
a medical malpractice case when the government deems the
sued medical professional to be a federal employee, certifies
that he was acting within the scope of his employment, and
replaces him as a party under the Public Health Service Act
(PHSA), 42 U.S.C. § 233(c). Because the savings provision lim-
its its application to actions where the United States is substi-
tuted as a party under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671–2680, we conclude that the savings
provision does not apply here and affirm.
I.
Shortly after a hysterectomy, Denise Evans was diagnosed
with a ureteral injury on August 14, 2019. She sued the sur-
geon and associated medical entities for negligence in state
court. As it turns out, the surgeon was employed by a feder-
ally-funded health center, and the Attorney General deemed
the surgeon an employee of the Public Health Service (a de-
partment within the United States Department of Health and
Human Services (HHS)) and certified that he was acting
within the scope of his employment. See id. § 233(c), (g)(1).
This certification paved the way for the United States to
substitute itself for the surgeon and health center as a defend-
ant in Evans’s state lawsuit pursuant to § 233(c) of the PHSA.
And once it did so, the government removed the case to fed-
eral court and requested dismissal of the claims against it
without prejudice due to Evans’s failure to exhaust adminis-
trative remedies. The district court agreed, dismissed the
claims against the government without prejudice, and re-
manded the claims against the non-governmental defendants
to state court.

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No. 23-1151 3
Undeterred, Evans proceeded to exhaust her administra-
tive remedies by mailing to HHS a claim, which the agency
received on September 23, 2021. Six months later, after HHS
failed to render a final disposition of her claim, Evans filed
this lawsuit against the United States under the FTCA, assert-
ing one count of medical negligence.
The government again moved to dismiss the suit (this time
with prejudice), contending that the negligence claim was
barred by the FTCA’s two-year statute of limitations, 28
U.S.C. § 2401(b). In response, Evans argued that the two-year
limitations period was not fatal to her claim due to the savings
clause in the Westfall Act. 28 U.S.C. § 2679(d)(5). She also in-
voked the doctrine of equitable tolling to save her claim. The
district court disagreed on both points and dismissed the suit.
Because we conclude that the Westfall Act’s savings provision
does not apply when the United States substitutes itself as a
party under § 233(c) of the PHSA and equitable tolling is in-
applicable here, we affirm.
II.
We review a district court’s dismissal of a complaint de
novo, Schlemm v. Pizzala, 94 F.4th 688, 690 (7th Cir. 2024), and
we review a court’s determination whether to equitably toll a
limitations period for abuse of discretion, Lax v. Mayorkas, 20
F.4th 1178, 1181 (7th Cir. 2021).
A. The Westfall Act
“The United States, as sovereign, is immune from suit save
as it consents to be sued.” United States v. Sherwood, 312 U.S.
584, 586 (1941) (citations omitted). The FTCA, however, pro-
vides a limited waiver of sovereign immunity and allows a
plaintiff to sue the United States to address harm caused by

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4 No. 23-1151
the negligent or wrongful act or omission of a federal em-
ployee while acting within the scope of his office or employ-
ment. 28 U.S.C. § 2675(a).
In 1988, the Supreme Court decided Westfall v. Erwin, 484
U.S. 292 (1988). There, it held that “to gain immunity from suit
for a common-law tort, a federal employee would have to
show (1) that he was acting within the scope of his employ-
ment, and (2) that he was performing a discretionary func-
tion.” De Martinez v. Lamagno, 515 U.S. 417, 425–26 (1995) (cit-
ing Westfall, 484 U.S. at 299). Believing that this decision un-
duly restricted the availability of immunity for government
employees, Congress amended the FTCA by enacting the
Westfall Act. Id. Three provisions in the Westfall Act are rele-
vant here.
First, when a plaintiff sues a federal employee, the Westfall
Act allows the United States to substitute itself as a defendant
in place of that employee, so long as the Attorney General cer-
tifies that the employee committed the challenged conduct
while acting within the scope of his employment. See 28 U.S.C.
§ 2679(d)(1).1
1 The Westfall Act provides the exclusive remedy against the United
States for any injury, loss of property, personal injury, or death arising
from the negligent or wrongful act or omission of any federal employee
while acting within the scope of the employee’s office or employment. 28
U.S.C. § 2679(b)(1). However, actions against federal employees for violat-
ing either the Constitution or a statute under which actions against an in-
dividual are authorized are not subject to this limitation. See id.
§ 2679(b)(2).

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No. 23-1151 5
Second, when a plaintiff commences such a lawsuit in
state court, the Act allows the United States to remove the ac-
tion to the appropriate district court any time before trial. See
id. § 2679(d)(2).
Third, the Westfall Act contains what is commonly re-
ferred to as a “savings provision.” This provision earns its
name by extending the FTCA’s two-year statute of limita-
tions, 28 U.S.C. § 2401(b), in those cases when a court dis-
misses a claim because the plaintiff failed to exhaust adminis-
trative remedies.2 The savings provision states in relevant
part:
(5) Whenever an action or proceeding in which the
United States is substituted as the party defendant
under this subsection is dismissed for failure first
to present a claim pursuant to section 2675(a) of
this title, such a claim shall be deemed to be timely
presented under section 2401(b) of this title if—
(A) the claim would have been timely had it been filed
on the date the underlying civil action was com-
menced, and
2 Section 2401(b) of the FTCA provides:
A tort claim against the United States shall be forever barred un-
less it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing, by certified or regis-
tered mail, of notice of final denial of the claim by the agency to
which it was presented.
28 U.S.C. § 2401(b).

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6 No. 23-1151
(B) the claim is presented to the appropriate Federal
agency within 60 days after dismissal of the civil ac-
tion.
28 U.S.C. § 2679(d)(5).
B. The Public Health Service Act
Congress enacted the PHSA in 1944 to enable the federal
government to meet the country’s growing public health
needs. Public Health Service Act, Pub. L. 78-410, 58 Stat. 682–
792 (1944). In 1970, it amended the Act to increase the availa-
bility of medical care in underserved communities. See Emer-
gency Health Personnel Act, Pub. L. 91-623, 84 Stat. 1868, 1870
(1970); H.R. Rep. No. 91-1662, at 1 (1970), as reprinted in 1970
U.S.C.C.A.N. 5775–76.
In furtherance of this goal, “[s]ection 233(a) [of the PHSA]
grants absolute immunity to PHS officers and employees for
actions arising out of the performance of medical or related
functions within the scope of their employment by barring all
actions against them for such conduct.” Hui v. Castaneda, 559
U.S. 799, 806 (2010). At the same time, the PHSA permits a
plaintiff to sue the United States for “personal injury, includ-
ing death, resulting from the performance of medical, surgi-
cal, dental, or related functions” by such PHS individuals. 42
U.S.C. § 233(a); see Hui, 559 U.S. at 806 (noting that the statute
“limits recovery for such conduct to suits against the United
States”).
In 1992, concerned about the level of malpractice premi-
ums for federally-funded neighborhood health centers, Con-
gress further amended the PHSA by enacting the Federally
Supported Health Centers Assistance Act (FSHCAA). See Fed-
erally Supported Health Centers Assistance Act, Pub. L. 102-

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No. 23-1151 7
501, 106 Stat. 3268–72 (1992); 42 U.S.C. § 233(g). Among other
things, the FSHCAA allows public or non-profit private enti-
ties receiving funds under federal health grant programs (as
well as their officers, employees, and contractors) to be
“deemed” PHS entities or employees, thereby falling within
the liability limitations contained in § 233(a). 42 U.S.C.
§ 233(g)(1); see 42 U.S.C. § 254b. This is the situation we have
here.
Finally, when a plaintiff files suit against a PHS officer or
employee acting within the scope of his employment (or a
medical professional deemed to be such), § 233(c) provides
that the proceeding “shall be removed” to federal court.
The question here is whether the Westfall Act’s savings
provision that extends the FTCA’s two-year limitations pe-
riod applies to an action where the government substitutes it-
self as a defendant under § 233(c) and removes the case to fed-
eral court. See P.W. by Woodson v. United States, 990 F.3d 515,
522 n.4 (7th Cir. 2021) (noting this is an open question in our
circuit).
C. The Savings Provision, § 2679(d)(5)
To answer this question, we look first and foremost to the
text of the savings provision itself. Landreth Timber Co. v.
Landreth, 471 U.S. 681, 685 (1985) (“It is axiomatic that ‘[t]he
starting point in every case involving construction of a statute
is the language itself.’”) (quoting Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)).
Where “the statute’s language is plain, ‘the sole function of
the courts is to enforce it according to its terms.’” United States
v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting Cami-
netti v. United States, 242 U.S. 470, 485 (1917)).

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8 No. 23-1151
The first clause of § 2679(d)(5) conditions the provision’s
applicability to those instances when “an action or proceeding
in which the United States is substituted as the party defendant un-
der this subsection is dismissed for failure first to present a
claim pursuant to section 2675(a) of this title ….” 28 U.S.C.
§ 2679(d)(5) (emphasis added). The phrase “this subsection”
has only one referent—§ 2679(d). In this case, the United
States replaced the surgeon as a defendant pursuant to
§ 233(c) of the PHSA, not § 2679(d) of the FTCA. Thus, by its
terms, the savings provision does not apply. This rather
straightforward interpretative exercise appears to answer the
question before us.
Resisting this textual reading, Evans’s counsel during oral
argument pointed to the portion of § 233(c) providing that
“the proceeding is deemed a tort action brought against the
United States under the provisions of Title 28 and all refer-
ences thereto.” 42 U.S.C. § 233(c). As she sees it, this means
that after the government’s substitution, the case should pro-
ceed as though all provisions in Title 28 apply, including the
savings provision. This argument, however, is not only belied
by § 2679(d)(5)’s text, but by the structure and history of the
PHSA itself.
For if Congress had intended the PHSA to incorporate the
FTCA wholesale, it is difficult to see why § 233(c) would have
its own certification provision, rather than simply relying on
the certification procedures in the FTCA. Compare 42 U.S.C.
§ 233(c), with 28 U.S.C. § 2679(d)(1). Nor would it explain why
Congress added a more limited tolling provision in the PHSA
in 2003 without incorporating or even mentioning the savings
provision in the Westfall Act. See Smallpox Emergency Per-
sonnel Protection Act, § 3, Pub. L. 108-20, 117 Stat. 638, 646

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No. 23-1151 9
(2003) (codified at 42 U.S.C. § 233(p)).3 Indeed, the Supreme
Court has rejected a previous attempt to argue that § 233 in-
corporates the FTCA in its entirety. See Hui, 559 U.S. at 811
(rejecting argument that the language in § 233(a) reflected
Congress’s desire to incorporate the FTCA into § 233).
We have had little occasion to address the interplay be-
tween the Westfall Act and the PHSA. Evans cites several
cases, but they are unhelpful. Many involve situations where
the United States substituted itself as a defendant either under
§ 2679(d) alone or under both § 2679(d) and § 233. See, e.g.,
Blanche v. United States, 811 F.3d 953, 957, 959–61 (7th Cir.
2016); Huertero v. United States, 601 F. App’x 169, 171 (3d Cir.
2015); Arroyo v. United States, 656 F.3d 663, 668 (7th Cir. 2011);
Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76,
78 (2d Cir. 2005); McLaurin v. United States, 392 F.3d 774, 777
(5th Cir. 2004). The closest we have come to addressing this
issue is in a footnote in Chronis v. United States, but (as Evans
concedes) that was dicta. See 932 F.3d 544, 549 n.5 (7th Cir.
2019). And “dicta, even if repeated, does not constitute prece-
dent and does not alter the plain text of … [a statute].” Okla-
homa v. Castro-Huerta, 597 U.S. 629, 645 (2022).
In sum, the text of § 2679(d) demonstrates that Congress
intended the savings provision in the Westfall Act to apply
only when the United States replaces a federal employee as a
defendant under § 2679(d), not § 233(c). Because that did not
3 The provision states: “[t]he time limit for filing a claim under this
subsection, or for filing an action based on such claim, shall be tolled dur-
ing the pendency of a request for benefits or compensation[.]” 42 U.S.C.
§ 233(p)(3)(A)(ii).

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10 No. 23-1151
happen here, the savings provision does not preserve Evans’s
claim.
D. Equitable Tolling
Evans also argues that the district court abused its discre-
tion by declining to equitably toll the two-year statute of lim-
itations. According to Evans, when she filed her state court
complaint, she did not know that the surgeon was employed
by a federally funded health center, and this excused her un-
timeliness.
“Equitable tolling is a rare remedy to be applied in unu-
sual circumstances, not a cure-all for an entirely common state
of affairs.” Wallace v. Kato, 549 U.S. 384, 396 (2007). “Generally,
a litigant seeking equitable tolling bears the burden of estab-
lishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In Arteaga v. United States, we observed that whether a doc-
tor is an employee of a federally funded health center is “no
secret.” 711 F.3d 828, 834 (7th Cir. 2013). “The website of the
Public Health Service identifies all the health centers that by
virtue of receiving funds from the Service may be sued for
malpractice only under the Federal Tort Claims Act.” Id. And
because “[m]embers of the medical malpractice bar should
know enough to consult the website when approached by a
prospective client[,]” “the remedy is not to punish the defend-
ant by depriving him of the protection of the statute of limita-
tions; it is for the plaintiff to sue the lawyer who misadvised
him for legal malpractice.” Id.
We have since on multiple occasions reminded the plain-
tiff’s bar of the PHS database. Each time, we have rebuffed

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No. 23-1151 11
attempts to rely on the doctrine of equitable tolling based on
assertions that the claimant did not know that the doctor in
question was employed by a qualifying health center. P.W.,
990 F.3d at 524; Blanche, 811 F.3d at 962. We broadcast the re-
minder again today.
Evans also argues that she was the victim of extraordinary
circumstances because, in her view, our cases strongly im-
plied that the Westfall Act’s savings clause applied to actions
removed under § 233. As discussed above, this reading of our
caselaw is incorrect. What is more, as the Supreme Court
stated in Menominee Indian Tribe of Wisconsin v. United States,
misreading case precedent is “fundamentally no different
from a garden variety claim of excusable neglect[.]” 577 U.S.
250, 257–58 (2016) (internal quotation marks omitted) (distin-
guishing cases in which a party relies on binding precedent
that is subsequently reversed).
Accordingly, the district court did not abuse its discretion
in holding that the doctrine of equitable estoppel does not ap-
ply to Evans’s claims.
III. Conclusion
For these reasons, the judgment is AFFIRMED.

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