Defining “Federal Agencies” Under the FTCA and Westfall Act: The Third Circuit’s Four‑Factor Control Test in Giordano v. Hohns

I. Introduction

The Third Circuit’s precedential decision in Frank Giordano & Daniel M. DiLella v. Andrews Hohns, et al. (No. 24‑1305, opinion filed Nov. 18, 2025) addresses a deceptively simple question with far‑reaching consequences: when does a federally created body qualify as a “federal agency” for purposes of the Federal Tort Claims Act (FTCA) and the Westfall Act, and are its members “employees of the government” entitled to substitution and immunity?

The case arises from a bitter internal dispute within the United States Semiquincentennial Commission, the congressionally created body tasked with planning the Nation’s 250th anniversary commemorations in 2026. The Commission’s then‑Chairman, Daniel DiLella, and its Executive Director, Frank Giordano, alleged that three fellow private‑citizen Commissioners— Andrew Hohns, Noah Griffin, and James Swanson—mounted a defamatory campaign to oust them from leadership, including accusations of mismanagement, waste, cronyism, and fiduciary breaches.

When DiLella and Giordano sued the Commissioners for defamation and related torts in Pennsylvania state court, the United States Attorney General certified under the Westfall Act that the defendants were acting within the scope of their federal employment, removed the case to federal court, and substituted the United States as defendant. Because the FTCA expressly excludes defamation claims from its waiver of sovereign immunity, the district court dismissed the suit. The Third Circuit now affirms.

In doing so, the court (Judge Krause writing for a unanimous panel of Judges Bibas and Scirica) lays down a structured, four‑factor framework for identifying “federal agencies” under 28 U.S.C. § 2671, emphasizes federal “control” as the decisive consideration, and clarifies the treatment of members of national commissions as “employees of the government” under the Westfall Act. It also reaffirms tight limits on discovery in challenges to Westfall certifications.

II. Summary of the Opinion

A. Core Holdings

  1. The Semiquincentennial Commission is a “federal agency” under the FTCA and Westfall Act.
    The court holds that the Commission qualifies as an “independent establishment[] of the United States” within § 2671. To reach that conclusion, it distills from Supreme Court and circuit precedent four “guiding factors” evidencing federal control:
    1. Formation and purpose;
    2. Governance;
    3. Financial oversight; and
    4. Day‑to‑day operational control (the “most weighty” factor).
  2. Private‑citizen Commissioners are “employees of the government.”
    Because the Commission is a federal agency, its members—although described in the enabling statute as “private citizens”—are either “officers or employees of [a] federal agency” or “persons acting on behalf of a federal agency in an official capacity, temporarily or permanently, with or without compensation” under § 2671. They therefore fall within the Westfall Act.
  3. The Attorney General’s scope‑of‑employment certification stands; no discovery is required.
    The certification is “prima facie evidence” that the alleged torts were within the scope of employment. The plaintiffs offered no specific facts suggesting a different factual understanding by the Attorney General and could not articulate what discovery would reveal. The district court did not abuse its discretion by denying jurisdictional discovery and accepting the certification.
  4. FTCA’s defamation exception bars the suit once the United States is substituted.
    Because the FTCA does not waive sovereign immunity for defamation‑type claims (libel, slander, misrepresentation, deceit, interference with contract rights, § 2680(h)), substitution of the United States as defendant required dismissal, leaving plaintiffs without a tort remedy against any party.

B. Practical Consequence in This Case

For Giordano and DiLella, the decision is outcome‑determinative. Having lost the ability to sue the individual Commissioners, and unable to sue the United States for defamation because of the FTCA’s exceptions, they are left without a judicial remedy for the alleged reputational and economic harms they suffered from the internal “smear campaign” they describe.

III. Factual and Statutory Background

A. The Semiquincentennial Commission

Congress passed the United States Semiquincentennial Commission Act in 2016 to prepare for the 250th anniversary of the founding of the United States. The Commission’s mandate is expressly national and coordinative:

  • “planning, encouraging, developing, and coordinating the Nation's 250‑year anniversary celebrations,” and
  • serving as “the point of contact of the Federal Government for all State, local, international, and private sector initiatives regarding the Semiquincentennial.”

Key structural features include:

  • Membership: 24 voting members:
    • 4 U.S. Senators;
    • 4 Members of the House of Representatives;
    • 16 private‑citizen members appointed by congressional leaders.
  • Non‑voting ex officio members: senior federal officials, including the Secretaries of Interior, State, Defense, and Education, the Attorney General, Librarian of Congress, Secretary of the Smithsonian, Archivist of the United States, and later the chairs of the NEA and NEH, the Director of IMLS, and the Chief Justice or his designee.
  • Leadership: The Chairperson is selected from among the private‑citizen members by the President; the Chairperson hires an Executive Director.
  • Administrative secretariat: The Secretary of the Interior designates a nonprofit to provide financial and administrative services.

DiLella was appointed as a private‑citizen Commissioner and selected as Chairperson (initially by President Trump, then reappointed by President Biden). He hired Giordano as Executive Director. Defendants Hohns, Griffin, and Swanson were also private‑citizen Commissioners. Hohns, in addition, had founded a nonprofit (USA250) that unsuccessfully sought to be the Commission’s administrative secretariat.

B. Alleged Defamation and State‑Court Suit

According to the complaint, after USA250 was not selected, Hohns developed a “personal animus” toward DiLella and Giordano. He allegedly:

  • helped draft a letter (on Congressman Robert Brady’s letterhead) criticizing DiLella’s conduct as Chairperson;
  • used that letter at the first Commission meeting to attack DiLella’s leadership;
  • “hijacked” a September 2021 Commission meeting with accusations of mismanagement; and
  • worked with Griffin and Swanson to communicate similar allegations to the media and senior members of Congress.

The complaint asserts that this campaign of “libel, slander, and smearing” undermined the plaintiffs’ authority, caused emotional and reputational harm, and ultimately resulted in their removal from Commission leadership, despite a later internal investigation that allegedly found “no evidence” of wrongdoing by Commission leadership.

In January 2023, Giordano and DiLella sued the individual Commissioners in the Philadelphia Court of Common Pleas, alleging:

  • defamation,
  • false light invasion of privacy,
  • tortious interference, and
  • civil conspiracy.

C. The Federal Tort Claims Act and Westfall Act

The FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, is a limited waiver of the United States’ sovereign immunity for certain torts committed by “employees of the government” acting within the scope of their employment. The Westfall Act, enacted in 1988 in response to Westfall v. Erwin, immunizes federal employees from personal liability for such work‑related torts and substitutes the United States as the sole defendant.

Mechanically, the Westfall Act allows the Attorney General to:

  1. certify that the defendant “employee was acting within the scope of his office or employment” at the time of the incident;
  2. remove a state‑court case to federal court; and
  3. substitute the United States as defendant, making the FTCA the “exclusive” remedy for the tort claim.

But two conditions must be met:

  1. The defendant must be an “employee of the government” as defined in § 2671; and
  2. The challenged conduct must have occurred within the scope of that employment under relevant state law.

Here, after removal to the Eastern District of Pennsylvania, the Attorney General certified that the Commissioners’ statements were within the scope of their federal employment and substituted the United States as defendant. Because FTCA § 2680(h) expressly excludes claims “arising out of ... libel [and] slander” and related torts, the district court dismissed the suit on sovereign‑immunity grounds. The appeal followed.

IV. Precedents and Doctrinal Lineage

A. FTCA “Agency” and “Employee” Concepts

Section 2671 defines “federal agency” to:

“include[] 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.”

“Employee of the government” in turn includes:

“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.”

The opinion emphasizes, consistent with prior caselaw, that Congress’s use of “includes” signals that these lists are illustrative, not exhaustive. Thus, courts must ask whether an entity resembles the enumerated federal institutions more than it resembles a “contractor.”

B. Supreme Court Guidance on Agency vs. Non‑Agency

1. Maryland ex rel. Levin v. United States

In Maryland ex rel. Levin, the Supreme Court held that non‑activated National Guard members (at that time) were state rather than federal employees for FTCA purposes. Even though federal funds and federal regulations were present, the key was that:

  • the Guardsmen were ultimately supervised and controlled by state officials (the Adjutant General), and
  • the Department of Defense treated them as state employees.

Takeaway: federal funding and regulation alone are insufficient; the location of actual control—here, in the state—determines employment status.

2. Logue v. United States

Logue addressed whether a county jail holding federal prisoners under contract with the Bureau of Prisons was part of a “federal agency.” The Court drew on common‑law master‑servant principles and held:

  • a contractor is not a federal agency where the government does not control the “detailed physical performance” and “day‑to‑day operations” of the facility;
  • federal standards and regulations, standing alone, do not create agency status.

Again, the decisive factor was where daily operational control resided—in the county, not the federal Bureau of Prisons.

3. United States v. Orleans

Orleans extended Logue’s reasoning to community action agencies funded under the Economic Opportunity Act. The Court noted that those agencies were:

  • created at the state or local level,
  • administered by community boards with no federal employees, and
  • subject only to federal funding conditions and general oversight.

The Court held that they were not federal agencies or instrumentalities; their employees were not federal employees for FTCA purposes. The “critical element” was again:

“not whether the entity receives federal funds or is subject to federal regulation, but whether or not there was day‑to‑day [federal] control of a program.”

C. Third Circuit and Other Circuits’ Approaches

The opinion traverses Third Circuit and sister‑circuit cases that have implicitly or explicitly used control‑based analyses:

  • Third Circuit:
    • Gibson v. United States: federal contractor operating a job corps center was not a federal agency due to lack of federal control over “day‑to‑day” operations.
    • Norman v. United States: reiterated that the presence or absence of federal control is decisive in distinguishing employees of an agency from independent contractors.
    • Staten v. Housing Authority of Pittsburgh: a state housing authority that received federal funds but retained “exclusive control” over those funds was not a federal agency for purposes of the Civil Rights Attorney’s Fees Awards Act.
    • Maliandi v. Montclair State Univ. and earlier Eleventh Amendment cases: though evaluating state “arm of the state” status rather than FTCA coverage, they deploy a structured, multi‑factor control analysis (treasury, how state law characterizes the entity, and structural autonomy) that the court borrows by analogy.
  • Other circuits:
    • Mendrala v. Crown Mortgage Co. (7th Cir.): developed a five‑factor test focused on ownership, control, structure, finances, and function.
    • Expeditions Unlimited Aquatic Enters. v. Smithsonian Inst. (D.C. Cir.): held the Smithsonian to be an “independent establishment” and thus a federal agency, stressing its national function, federal funding, and tight governmental oversight.
    • Lewis v. United States (9th Cir.) and Pearl v. United States (10th Cir.): further refined the centrality of practical federal control (as opposed to mere regulation or chartering) in differentiating federal agencies from other nationally significant but autonomous entities (e.g., Federal Reserve Banks, Civil Air Patrol).

The Third Circuit in Giordano crystallizes this scattered precedent into an explicit, four‑factor control test tailored to FTCA and Westfall Act questions.

V. The Court’s Legal Reasoning

A. Defining “Federal Agency” Under § 2671: The Four‑Factor Control Test

1. Textual Analysis of § 2671

The opinion begins with statutory text:

  • “Federal agency” includes executive departments, the judicial and legislative branches, military departments, “independent establishments,” and certain corporations.
  • It explicitly excludes “any contractor with the United States.”

Because “includes” is illustrative rather than restrictive, the court must decide whether a given body is sufficiently like the listed federal institutions—and sufficiently unlike a contractor—to count as a “federal agency.”

The key interpretive moves:

  • The court treats “independent establishments of the United States” as entities created by or embedded in the federal government, yet not housed within an existing department—consistent with how Congress has used the term in scattered statutes (e.g., for the Armed Forces Retirement Home or independent executive establishments).
  • It recognizes that many entities may serve federal policies; the question is whether they are organs of the federal government as such, not merely local or private actors receiving federal support.

2. Control as the “Distinguishing Feature”

Synthesizing Maryland, Logue, and Orleans, the court identifies federal control—particularly over day‑to‑day operations—as the “distinguishing feature” of a federal agency under the FTCA and Westfall Act. Mere funding, regulation, or policy alignment is not enough.

3. Importing Structure from Eleventh Amendment Doctrine

Noting that it had not previously articulated a detailed FTCA agency test, the Third Circuit borrows structure from its “arm of the state” Eleventh Amendment cases (Maliandi, Fitchik). There, the court assesses:

  • who pays judgments,
  • how state law characterizes and structures the entity, and
  • the degree of state control over governance and autonomy.

Analogously, in the FTCA context, the Third Circuit looks at how the federal government creates, funds, structures, and directs the entity, focusing on real‑world control rather than formal labels.

4. The Four Guiding Factors

The court distills a four‑factor test to determine whether an organization is a “federal agency” under § 2671:

  1. Formation and Purpose
    Is the entity created directly by Congress or the Executive and housed within the federal system, or is it a state/local/private creation? Is its mission national in character or primarily local? Evidence includes:
    • text of the enabling act,
    • whether the act directs states/municipalities to set up bodies, or instead creates a freestanding federal body,
    • the scope of its charge (national coordination versus local implementation).
  2. Governance
    Who runs the entity and how are they selected and removed?
    • Are leaders federal officials, appointed by federal officials, and removable under federally specified mechanisms?
    • Or is leadership controlled by state/local officials, private interests, or member organizations?
    The heavier the federal presence in board composition and appointment/ removal powers, the more strongly the factor points toward agency status.
  3. Financial Oversight
    How is the entity funded and who controls the funds?
    • Direct congressional appropriations generally cut in favor of agency status.
    • Grants with local control and merely standard grant conditions (as in Orleans and Staten) weigh against.
    • Formal reporting obligations to Congress or GAO and close financial regulation suggest federal oversight, though general “no‑abuse‑of‑funds” conditions alone are not dispositive.
  4. Operational (Day‑to‑Day) Control (the “most weighty” factor)
    This asks how deeply the federal government directs daily operations:
    • Are major operational details (meeting locations, quorum rules, programmatic priorities, personnel rules, property disposition) set by statute or federal regulation?
    • Do federal civil‑service, ethics, travel, or procurement rules apply?
    • Is the entity required to coordinate with, report to, or be supervised by existing federal agencies in conducting its core work?
    • Does the entity own property and act largely independently, or is property ultimately controlled by the U.S.?

The court emphasizes that all factors are relevant, but the fourth— operational control—is decisive where it clearly points in one direction.

B. Applying the Test: The Commission as a Federal Agency

1. Formation and Purpose

  • Congressional creation: The Commission was directly created by an Act of Congress, rather than by state or private initiative pursuant to a federal grant program.
  • National mission: It has an explicitly national coordinating role—serving as the “point of contact of the Federal Government” for Semiquincentennial initiatives in all jurisdictions and internationally.
  • No state/local intermediary: Unlike the community action agencies in Orleans, there is no intermediate state or local body empowered to control it.

The court analogizes the Commission to the Smithsonian—another Congress‑ created institution with national scope—rather than to locally controlled entities merely carrying out federally funded programs.

2. Governance

The composition of the Commission’s leadership strongly suggests federal control:

  • Eight of 24 voting members are members of Congress.
  • The remaining 16 voting members, though described as “private citizens,” are appointed by congressional leaders.
  • Twelve non‑voting members are high‑ranking federal officials or their designees.
  • The President appoints the Chairperson from among the private‑citizen members.
  • Removal of private‑citizen Commissioners occurs via Commission vote but only with “notice and approval of the relevant appointing authority”— the specific congressional official who appointed them.

The court notes that, in some respects, the Commission’s governance structure is at least as federally dominated as that of the Smithsonian, whose Board of Regents was central to the D.C. Circuit’s conclusion in Expeditions Unlimited.

3. Financial Oversight

Financial arrangements further tie the Commission to the federal government:

  • The Commission has received roughly $50 million in direct appropriations from Congress.
  • It may also raise private funds, but the “overwhelming” source of its funding is congressional appropriations.
  • The Commission’s financial and administrative operations are handled by an “administrative secretariat” selected by the Secretary of the Interior.
  • The Commission must:
    • report to the President, and
    • submit annual reports, including an accounting of funds, to Congress.

While federal grants alone would not be enough to confer agency status, the combination of direct appropriations, Interior’s role in overseeing the administrative secretariat, and mandated reporting to the President and Congress supports a finding of federal control.

4. Operational Control (The “Clincher”)

The court finds day‑to‑day control “clinches” the analysis:

  • Statutory micromanagement: Congress directs:
    • meeting locations (initially Independence Hall in Philadelphia),
    • quorum rules,
    • termination date,
    • emphasis on “locations of historical significance,”
    • use of a time capsule and other specified commemorative activities.
  • Property control: While operating, the Commission can own and license intellectual property, but upon termination, its property must be used or disposed of at the direction of the Secretary of the Interior for the National Park Service.
  • Employment conditions and benefits:
    • The Chairperson may hire staff without regard to civil‑service laws and set salaries, but:
    • staff salaries cannot exceed a federal statutory cap;
    • federal employees may be detailed to the Commission while retaining their civil‑service protections;
    • procurement of temporary services is subject to federal payment limitations;
    • private‑citizen Commissioners are reimbursed for expenses “at rates authorized for an employee of an agency.”
  • Inter‑agency coordination: The Commission Act:
    • requires close coordination with the Department of the Interior and other federal cultural institutions (Library of Congress, Smithsonian, National Archives);
    • obligates those entities to cooperate in developing exhibits and scholarly works; and
    • requires them to submit studies and recommendations to the Commission for inclusion in its report to the President.

These statutory prescriptions, together with federal oversight of property and personnel, amount to the kind of pervasive operational control that the Supreme Court has deemed decisive in distinguishing agencies from contractors or merely federally assisted entities.

5. Conclusion on Agency Status

Because all four factors—especially operational control—indicate robust federal control, the court holds that the Semiquincentennial Commission is a “federal agency” under § 2671 and therefore within the FTCA and Westfall Act framework.

C. Commissioners as “Employees of the Government”

Having found that the Commission is a federal agency, the next step is to decide whether its voting members—particularly the private‑citizen Commissioners—are “employees of the government.”

Section 2671’s definition is broad. It covers:

  1. “officers or employees of any federal agency,” and
  2. “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.”

Key points in the court’s reasoning:

  • The disjunctive structure suggests that “persons acting on behalf of a federal agency” reaches a broader category than formal “officers or employees.”
  • Supreme Court dicta in Logue contemplated that the term includes “dollar‑a‑year” personnel and employees of other entities placed under direct federal supervision.
  • Congress in other statutes has expressly treated volunteers, deputized state/local officers, and similar non‑traditional workers as “employees of the government” for FTCA purposes.

In this case, the court finds it unnecessary to choose between the narrower and broader prongs: the Commissioners plainly fall within at least the second category:

  • They are federally appointed members of a federal agency;
  • They serve in an official, not personal, capacity;
  • They act “on behalf of” the Commission in conducting its business; and
  • They remain subject to oversight and removal processes prescribed by Congress and tied to their appointing federal officials.

The plaintiffs relied heavily on the fact that the Commission Act labels these appointees “private citizens” and states that they “shall not be an officer or employee of the Federal Government” at the moment of appointment. The court rejects this formalistic argument: whatever their status before appointment, once they accept Commission roles and perform Commission work, they come within § 2671’s capacious language.

D. Scope of Employment and Denial of Discovery

1. Scope of Employment: Governing Law and Burden

The second Westfall condition is that the conduct at issue occurred within the scope of employment. That is a question of state law. Under Pennsylvania law, conduct falls within the scope of employment if:

  1. it is the kind of conduct the employee is employed to perform;
  2. it occurs substantially within authorized time and space limits; and
  3. it is actuated, at least in part, by a purpose to serve the employer.

Westfall certification is not conclusive on substitution, but it is “prima facie evidence” that these conditions are met. The burden thus shifts to the plaintiff to produce specific facts rebutting that conclusion.

2. Discovery Standard in Westfall Challenges

The court reiterates the standard from Schrob, Melo, and Brumfield:

  • There is no automatic right to discovery on the scope‑of‑employment issue.
  • Discovery is appropriate if there is “reason to believe” that the Attorney General’s certification rests on a factual understanding that differs from the allegations in the complaint.
  • Mere speculation that the government relied on undisclosed materials is insufficient; plaintiffs must identify:
    • what factual discrepancies might exist, and
    • what specific discovery would likely reveal those discrepancies.

3. Application to the Facts

Here, the certification expressly rests on:

  • the complaint itself; and
  • “materials prepared in anticipation of litigation” by the U.S. Attorney’s Office.

The complaint’s own allegations show that the challenged statements were made:

  • in internal Commission communications (letters and meeting interventions about Commission leadership and management);
  • during Commission meetings; and
  • in communications with the press and influential Members of Congress about the functioning of the Commission—matters squarely within the oversight and governance role of Commissioners.

The court concludes that these allegations themselves support the inference that the Commissioners were acting within the scope of their duties: evaluating the performance and integrity of Commission leadership, raising concerns in Commission fora, and communicating with relevant stakeholders.

On discovery, the plaintiffs argued that the Attorney General’s reliance on unspecified internal materials warranted jurisdictional discovery. But:

  • They could not articulate any plausible way in which those materials might reveal facts that would take the conduct outside the scope of employment.
  • They did not specify any particular discovery requests or identify topics that would undercut the certification.
  • Many such internal materials would in any event be shielded by work‑product or attorney‑client privilege.

Under these circumstances, the Third Circuit holds that the district court did not abuse its discretion by:

  • denying discovery; and
  • accepting the certification and concluding that the statements were within the scope of federal employment.

E. Consequence: FTCA Defamation Exception and Dismissal

Once the United States is properly substituted, the FTCA’s waiver of sovereign immunity—and its exceptions—govern. Section 2680(h) bars claims arising out of libel, slander, misrepresentation, deceit, and interference with contract rights. The Third Circuit notes:

  • defamation‑type claims cannot be re‑labeled as other torts to escape this exception;
  • where an FTCA exception applies, plaintiffs may end up with “no tort action against any party” (citing Lamagno and Smith), a result Congress accepted when it passed the Westfall Act.

Accordingly, even though the plaintiffs’ allegations, if true, depict serious professional and reputational harm, their claims cannot proceed against either the individual Commissioners or the United States.

VI. Impact and Implications

A. A Generalizable Framework for Hybrid Federal Bodies

The most significant doctrinal contribution of Giordano is the Third Circuit’s explicit adoption of a structured, four‑factor, control‑based test for determining when a hybrid or special‑purpose body is a “federal agency” under § 2671. This framework will be directly relevant to:

  • temporary national commissions (e.g., investigative or commemorative commissions);
  • standing advisory bodies with federal and non‑federal members;
  • federally chartered corporations and quasi‑public institutions.

Courts in the Third Circuit confronting FTCA/Westfall questions about such entities now have a clear analytic template focused on formation, governance, funding, and especially operational control.

B. Westfall Immunity for Members of National Commissions

By holding that private‑citizen Commissioners are “employees of the government,” the opinion substantially clarifies that:

  • individuals appointed by federal officials to serve on national commissions can be protected by Westfall immunity for torts committed in the course of their Commission work, even if unpaid;
  • their actions in internal oversight, criticism, and governance of federal commissions are likely within the scope of employment; and
  • plaintiffs harmed by alleged defamation within such federal bodies may find themselves without recourse due to the FTCA’s defamation exception.

This may encourage frank internal criticism and whistleblowing within commissions by reducing fear of personal tort liability. Conversely, it may raise concerns about accountability when Commission members allegedly abuse their positions to pursue personal vendettas.

C. Tightened Access to Discovery in Westfall Challenges

Giordano reinforces a relatively stringent standard for obtaining jurisdictional discovery to challenge Westfall certifications:

  • certification is strong prima facie evidence of scope of employment;
  • discovery will not be granted based on mere conjecture about what internal DOJ materials might contain;
  • plaintiffs must articulate plausible factual disputes and targeted discovery needs.

This approach furthers the Westfall Act’s purpose of sparing federal employees the burdens of litigation, but it also makes it harder for plaintiffs to pierce erroneous certifications where evidence of ultra‑vires behavior lies largely in the hands of the government.

D. Cross‑Doctrinal Resonance

While the opinion is formally confined to the FTCA/Westfall context, the four‑factor test may prove influential in other contexts where the term “federal agency” or “independent establishment” appears, such as:

  • statutory coverage of ethics, procurement, or whistleblower statutes;
  • questions about whether an entity is subject to GAO audit mandates or congressional oversight tools; and
  • potentially, though more controversially, in debates about the status of entities for separation‑of‑powers or appointments‑clause analysis.

The panel’s brief references to contemporary Supreme Court cases revisiting the scope of “independent agencies” in the removal context underscore that “independence” can have different meanings in different doctrinal settings. Here, “independent establishment” is used to signal a federal entity outside existing departments, not necessarily one insulated from presidential control.

VII. Complex Concepts Simplified

A. Sovereign Immunity and the FTCA

The United States, as a sovereign, cannot be sued unless it consents. The FTCA is a statute in which Congress consents—subject to many conditions and exceptions—to be sued for certain torts committed by federal employees acting within the scope of their employment. But:

  • The FTCA is a limited waiver; courts interpret it strictly.
  • Section 2680 lists categories of claims Congress chose not to allow, including defamation (libel and slander).

B. The Westfall Act and Substitution

Before 1988, federal employees could sometimes be personally liable for torts committed in the course of their federal work. The Westfall Act changed that. It:

  • makes the FTCA the exclusive remedy for such torts;
  • permanently immunizes federal employees from personal liability for work‑related torts; and
  • requires substitution of the United States as defendant when the conditions are met.

Effectively, the Act implements a kind of government‑wide respondeat superior: if the employee is in scope, the federal government, not the individual, is on the hook—subject to the FTCA’s waivers and exceptions.

C. “Employee of the Government”

Contrary to everyday usage, “employee of the government” under § 2671 is a term of art that includes:

  • formal officers and civil servants of federal agencies;
  • members of the armed forces and National Guard (with qualifications);
  • federal public defenders; and
  • “persons acting on behalf of a federal agency” in an official capacity, with or without pay.

This last category is deliberately broad and can include volunteers, deputized state/local officials, and, as Giordano holds, private‑citizen members of a federal commission.

D. “Federal Agency” and “Independent Establishment”

A “federal agency” under § 2671 is not just any entity that touches federal funds. It must be part of the federal government’s institutional structure. Indicators include:

  • creation by Congress or the Executive;
  • federal appointment of leadership;
  • direct appropriations from Congress; and
  • federal rules governing day‑to‑day operations.

An “independent establishment of the United States” is simply a federal entity that is not housed inside a cabinet department or the military—such as certain boards, commissions, and special‑purpose agencies.

E. Scope of Employment

Whether an employee’s conduct is within the “scope of employment” is governed by the law of the state where the act occurred. In general, courts ask:

  • Was the conduct of the type the employee was hired (or appointed) to perform?
  • Did it occur at work or in a sufficiently work‑related time/place?
  • Was the employee, at least in part, trying to serve the employer’s interests, even if also acting out of personal motives?

Importantly, the fact that conduct is allegedly tortious or even malicious does not automatically take it outside the scope of employment if it occurs in the course of performing assigned duties.

VIII. Critical Observations

A. Balancing Immunity and Accountability

Giordano starkly illustrates how the Westfall/FTCA framework can leave plaintiffs with no remedy:

  • The very finding that the defendants were federal employees acting in scope protects them from personal liability;
  • once the United States is substituted, FTCA exceptions (like the defamation bar) can foreclose any suit against the government.

This outcome reflects Congress’s policy choice to prioritize protecting federal personnel (including now commission members) from litigation risks, even at the price of under‑compensating victims of certain torts. Some may view this as appropriately shielding public servants; others may see it as excessively insulating federal actors from accountability in reputational harm cases.

B. The Breadth of “Employee” Status

The court’s reading of “employee of the government” solidifies a trend toward treating those who serve on federal commissions—even temporarily, part‑time, and without pay—as federal actors for FTCA purposes. That has two important consequences:

  • It brings them under the umbrella of federal indemnification and immunity; but
  • It may also subject them to other federal laws governing ethics, conflicts of interest, and recordkeeping, though those issues were not before the court.

Entities that recruit prominent private figures to serve on federal boards may need to more clearly explain these legal consequences to potential appointees.

C. Discovery Constraints and Information Asymmetry

By making discovery contingent on a concrete showing that DOJ relied on a different factual narrative than the complaint, the court protects federal defendants from protracted jurisdictional skirmishing. At the same time, this standard arguably entrenches information asymmetry:

  • Critical evidence about scope of employment (e.g., internal emails, instructions, or policies) often resides with the government;
  • plaintiffs may not know enough to “specify” discrepancies without some limited discovery.

The court appears to resolve that tension in favor of the Westfall Act’s goal of early resolution. Litigants challenging certifications in the Third Circuit will need to be unusually precise and concrete in articulating factual disputes and targeted discovery needs.

IX. Conclusion

Giordano v. Hohns is a significant addition to Third Circuit precedent on the FTCA and Westfall Act. It:

  • adopts a clear, four‑factor, control‑oriented test for determining when an entity is a “federal agency” under § 2671;
  • confirms that the United States Semiquincentennial Commission is such a federal agency—an “independent establishment” of the United States;
  • treats private‑citizen members of that Commission as “employees of the government” or, at minimum, persons “acting on behalf of a federal agency,” bringing them within Westfall protection; and
  • reaffirms that Westfall certifications are prima facie valid and that discovery to challenge them will be allowed only upon a concrete showing of factual dispute.

The immediate effect is to bar Giordano and DiLella’s defamation‑based claims, given the FTCA’s defamation exception. More broadly, the decision clarifies that members of federal commissions—especially those created, funded, and directed by Congress—are likely to be treated as federal employees for tort‑immunity purposes. Future litigants and drafters of enabling legislation will need to navigate this landscape carefully, understanding that Congress’s design choices about governance, funding, and operational detail can determine whether a new entity is a “federal agency” and whether its members enjoy Westfall immunity.