EVANS v. UNITED STATES (2025)

In this case, we are asked to decide whether the savings provision in the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly 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 limits its application to actions where the United States is substituted 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 surgeon and associated medical entities for negligence in state court. As it turns out, the surgeon was employed by a federally-funded health center, and the Attorney General deemed the surgeon an employee of the Public Health Service (a department 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 defendant in Evans's state lawsuit pursuant to § 233(c) of the PHSA. And once it did so, the government removed the case to federal court and requested dismissal of the claims against it without prejudice due to Evans's failure to exhaust administrative remedies. The district court agreed, dismissed the claims against the government without prejudice, and remanded the claims against the non-governmental defendants to state court.

Undeterred, Evans proceeded to exhaust her administrative 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, asserting 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 invoked 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 inapplicable 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, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). The FTCA, however, provides a limited waiver of sovereign immunity and allows a plaintiff to sue the United States to address harm caused by the negligent or wrongful act or omission of a federal employee while acting within the scope of his office or employment. 28 U.S.C. § 2675(a).

In 1988, the Supreme Court decided Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (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 employment, and (2) that he was performing a discretionary function.” De Martinez v. Lamagno, 515 U.S. 417, 425–26, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (citing Westfall, 484 U.S. at 299, 108 S.Ct. 580). Believing that this decision unduly 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 relevant 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 certifies that the employee committed the challenged conduct while acting within the scope of his employment. See 28 U.S.C. § 2679(d)(1).¹

Second, when a plaintiff commences such a lawsuit in state court, the Act allows the United States to remove the action to the appropriate district court any time before trial. See id. § 2679(d)(2).

Third, the Westfall Act contains what is commonly referred to as a “savings provision.” This provision earns its name by extending the FTCA's two-year statute of limitations, 28 U.S.C. § 2401(b), in those cases when a court dismisses a claim because the plaintiff failed to exhaust administrative 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 commenced, and

(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

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 availability of medical care in underserved communities. See Emergency 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, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010). At the same time, the PHSA permits a plaintiff to sue the United States for “personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions” by such PHS individuals. 42 U.S.C. § 233(a); see Hui, 559 U.S. at 806, 130 S.Ct. 1845 (noting that the statute “limits recovery for such conduct to suits against the United States”).

In 1992, concerned about the level of malpractice premiums for federally-funded neighborhood health centers, Congress further amended the PHSA by enacting the Federally Supported Health Centers Assistance Act (FSHCAA). See Federally Supported Health Centers Assistance Act, Pub. L. 102-501, 106 Stat. 3268–72 (1992); 42 U.S.C. § 233(g). Among other things, the FSHCAA allows public or non-profit private entities 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 period applies to an action where the government substitutes itself as a defendant under § 233(c) and removes the case to federal 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, 105 S.Ct. 2297, 85 L.Ed.2d 692 (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, 95 S.Ct. 1917, 44 L.Ed.2d 539 (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, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)).

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 under 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 references thereto.” 42 U.S.C. § 233(c). As she sees it, this means that after the government's substitution, the case should proceed 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 Personnel Protection Act, § 3, Pub. L. 108-20, 117 Stat. 638, 646 (2003) (codified at 42 U.S.C. § 233(p)).³ Indeed, the Supreme Court has rejected a previous attempt to argue that § 233 incorporates the FTCA in its entirety. See Hui, 559 U.S. at 811, 130 S.Ct. 1845 (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 between 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 precedent and does not alter the plain text of ․ [a statute].” Oklahoma v. Castro-Huerta, 597 U.S. 629, 645, 142 S.Ct. 2486, 213 L.Ed.2d 847 (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 happen here, the savings provision does not preserve Evans's claim.

D. Equitable Tolling

Evans also argues that the district court abused its discretion by declining to equitably toll the two-year statute of limitations. 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 untimeliness.

“Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.” Wallace v. Kato, 549 U.S. 384, 396, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). “Generally, a litigant seeking equitable tolling bears the burden of establishing 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, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

In Arteaga v. United States, we observed that whether a doctor 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 defendant by depriving him of the protection of the statute of limitations; it is for the plaintiff to sue the lawyer who misadvised him for legal malpractice.” Id.

We have since on multiple occasions reminded the plaintiff's bar of the PHS database. Each time, we have rebuffed 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 reminder again today.

Evans also argues that she was the victim of extraordinary circumstances because, in her view, our cases strongly implied 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, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016) (internal quotation marks omitted) (distinguishing 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 apply to Evans's claims.

III. Conclusion

For these reasons, the judgment is AFFIRMED.

FOOTNOTES

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 violating either the Constitution or a statute under which actions against an individual are authorized are not subject to this limitation. See id. § 2679(b)(2).

2.   Section 2401(b) of the FTCA provides:A tort claim against the United States shall be forever barred unless 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 registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401(b).

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 during the pendency of a request for benefits or compensation[.]” 42 U.S.C. § 233(p)(3)(A)(ii).

Lee, Circuit Judge.