Irma Herrera v. United States

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2428 IRMA HERRERA, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cv-05238 — Franklin U. Valderrama, Judge. ____________________ ARGUED MAY 19, 2026 — DECIDED AUGUST 14, 2026 ____________________ Before BRENNAN, Chief Judge, and ST. EVE and KOLAR, Cir- cuit Judges. PER CURIAM. Irma Herrera alleges her obstetricians com- mitted medical malpractice when she gave birth at a commu- nity health clinic in Chicago. She sued them in state court, seeking damages for her serious injuries. But the health clinic receives federal funding, so Herrera’s only remedy runs against the United States under the Federal Tort Claims Act. See 42 U.S.C. § 233(a), (g). The Attorney General removed 2 No. 25-2428 Herrera’s case to federal court after certifying that the doctors were acting within the scope of their employment at the time she was injured. Id. § 233(c). The district court dismissed her case for failure to exhaust her administrative remedies. 28 U.S.C. § 2401(b). Seeking to save her claim, Herrera complied with the Westfall Act’s sav- ing provision, id. § 2679(d)(5), returned to federal court, and filed this case. In Evans v. United States, this court considered a procedur- ally identical, and factually similar, case. 132 F.4th 473, 475– 79 (7th Cir. 2025). Evans holds that the saving provision of the Westfall Act does not apply to medical malpractice cases re- moved under 42 U.S.C. § 233(c). Id. 1 So, the district court dis- missed Herrera’s case. But she contends Evans was wrongly decided, raising statutory arguments not presented to the panel in that case. We decline to overrule Evans. The doctrine of stare decisis “promotes the evenhanded, predictable, and consistent devel- opment of legal principles, fosters reliance on judicial deci- sions, and contributes to the actual and perceived integrity of the judicial process.” Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1065 (7th Cir. 2000) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). This court overturns its own recent prec- edent only when given a “compelling reason to do so.” 1 “Saving, not savings, is the precise word for a statutory provision exempting from coverage something that would otherwise be included.” McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081–82 (11th Cir. 2017) (quoting BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 797 (3d ed. 2011)) (citation modified). For consistency, we use “saving provision” throughout, even though Evans used “savings pro- vision” and “savings clause” interchangeably. 132 F.4th at 475–76. No. 25-2428 3 Bethesda Lutheran Homes and Servs., Inc. v. Born, 238 F.3d 853, 858 (7th Cir. 2001). Herrera has not pointed to any such rea- sons; she simply argues that Evans was wrongly decided. Without more, we choose to stand by our prior panel prece- dent. As we have reminded members of the medical malpractice bar before, it is “no secret” whether a clinic or its doctors “may be sued for malpractice only under the Federal Tort Claims Act.” Arteaga v. United States, 711 F.3d 828, 834 (7th Cir. 2013). The Health Resources and Services Administration maintains a database of all clinics and health centers “deemed” employ- ees of the Public Health Service—meaning the remedy for torts committed by their employees may lie only against the United States under the Federal Tort Claims Act. See Federal Tort Claims Act Search Tool, HRSA DATA WAREHOUSE (last ac- cessed July 14, 2026), https://data.hrsa.gov/topics/health-cen- ters/ftca-search-tool; see also 42 U.S.C. § 233(g). To avoid Her- rera’s fate, this database should be the first stop for plaintiffs’ attorneys dealing with similar cases. AFFIRMED 4 No. 25-2428 BRENNAN, Chief Judge, dissenting. At twenty-three-years of age, Irma Herrera was forced to have a hysterectomy after she gave birth to her third child. She alleges that negligent care by her obstetricians during and after her delivery caused her to suffer a “massive hemorrhage” and organ failure due to shock from the bleeding. So, she sued them in state court, alleging they committed medical malpractice. Five months after Herrera filed suit, an unexpected party intervened: the United States of America. As it turned out, the clinic where Herrera gave birth received federal funding from the U.S. Public Health Service. That meant the clinic had been “deemed … an employee of the Public Health Service” under 42 U.S.C. § 233(g), so Herrera’s only remedy ran against the United States under the Federal Tort Claims Act. See id. § 233(a). What happened next is the crux of the dispute in this case. The U.S. Attorney for the Northern District of Illinois certified that Herrera’s doctors were acting within the scope of their employment when they treated her and removed the case to federal court, as 42 U.S.C. § 233(c) permits. Then, he averred that “the United States is substituted as the defendant in lieu of” the individual defendants. 1 Now proceeding in federal court, the government moved to dismiss Herrera’s case be- cause she did not exhaust her administrative remedies. See 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is [timely] presented … to the ap- propriate Federal agency.”). The court granted that motion. Herrera is not the first person to have been surprised that her tortfeasor qualified as a government agent. Indeed, this 1 Notice of Removal, No. 1:19-cv-02966, Dkt. 1 at 3 (N.D. Ill. 2019). No. 25-2428 5 problem can be traced back over sixty years to the early days of the Federal Tort Claims Act. See, e.g., Whistler v. United States, 252 F. Supp. 913, 914–15 (N.D. Ind. 1966). That is why Congress added a saving provision to the Westfall Act (for- mally known as the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694). If a plaintiff mistakenly files in state court first because she as- sumes her tortfeasors are private citizens, her claim “shall be deemed to be timely presented … if … the claim would have been timely had it been filed on the date the underlying civil action was commenced” and if the plaintiff presents her claim “to the appropriate Federal agency within 60 days after dis- missal of the civil action.” 28 U.S.C. § 2679(d)(5). Hoping to take advantage of the saving provision, Herrera complied with its terms to the letter. Once her administrative claim was denied, she filed this suit in federal court, arguing her claim should be deemed timely. While her suit was pending, this court decided Evans v. United States, 132 F.4th 473 (7th Cir. 2025). There, the court held that the saving provision did not apply to cases removed from state court under the 42 U.S.C. § 233(c). Id. at 475. That is because the Westfall Act does not govern in cases “when the government deems the sued medical professional to be a fed- eral employee, certifies that he was acting within the scope of his employment, and replaces him as a party under” § 233. Id. But I see a fatal flaw with this holding: it is not possible for the United States to automatically replace individual defend- ants under § 233 alone. Asking us to overturn Evans, Herrera observes that the plain text of the statute contains no language permitting substitution of the United States as a defendant in medical malpractice tort actions. That sets it apart from the 6 No. 25-2428 Westfall Act, which contains express language mandating substitution: “the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2). So, the Evans deci- sion was built on an assumption that lacked support in the operative statute. I respectfully dissent because I believe Evans should be overruled. The plain text of the statute, read in tandem with the Westfall Act, shows that any time the United States auto- matically substitutes itself as the defendant in a medical mal- practice tort action, it does so under the Westfall Act. That means that act’s saving provision applies. This opinion proceeds in three parts. First, I outline the history of exclusivity provisions applied to the Federal Tort Claims Act, which provides necessary background for under- standing the statute here. Next, and importantly, I explain why the plain text of 42 U.S.C. § 233(c) contravenes Evans. Fi- nally, I discuss why the principle of stare decisis does not counsel against overturning Evans. The “compelling reason” justifying a departure from precedent is that—without no- tice—the government changed its policy in cases removed un- der § 233(c). That incorrectly led us to incorporate this policy change into our law. This court should not surrender its pre- rogative to “say what the law is” to the Executive Branch. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385 (2024) (quot- ing Marbury v. Madison, 1 Cranch 137, 177 (1803)). I A Congress enacted the Federal Tort Claims Act (the FTCA or the Act) in 1946. Pub. L. No. 79-601, §§ 401–24, 60 Stat. 812, 842–47 (1946). The “product of nearly thirty years of No. 25-2428 7 congressional consideration,” Indian Towing Co. v. United States, 350 U.S. 61, 68 (1955), this Act “streamlined litigation for parties injured by federal employees acting within the scope of their employment.” Brownback v. King, 592 U.S. 209, 211 (2021). At first, the Act was not exclusive. Cf. Levin v. United States, 568 U.S. 503, 506–07 (2013). It “afforded tort victims a remedy against the United States, but did not preclude [suits] against individual tortfeasors.” Id. at 507. In other words, Congress had not immunized these federal employees from tort liabil- ity; it simply supplied a deeper pocket for recovery. That changed in 1961. Congress began experimenting with immunizing tortfeasors from personal liability in the Federal Drivers Act. Pub. L. No. 87-258, 75 Stat. 539 (1961). The Driv- ers Act made the FTCA action against the United States “exclusive” for torts “resulting from the operation by any em- ployee of the Government of any motor vehicle while acting within the scope of his office or employment.” Id. Beyond its immunity provisions, the Drivers Act had to address a critical procedural challenge. Many victims did not know that the driver who caused their injuries was a federal employee. And even if they did, they might not be sure that the employee was acting within the scope of his employment at the time of the incident. Both strategic and unwitting plain- tiffs, then, would sue the tortfeasor in state court first. The for- mer could extensively litigate whether the employee acted within the scope of his employment in state court, foiling Congress’s choice to funnel such suits into federal court. And the latter might accidentally forfeit their only remedy by fail- ing to follow the FTCA’s statute of limitations. 8 No. 25-2428 Congress’s solution to this problem was the two-pronged “scope certification” and removal procedure. See Hui v. Cas- taneda, 559 U.S. 799, 810–11 (2010). When a case filed in state court should have been filed as an FTCA action in federal court, the Attorney General first certifies that “the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose.” 28 U.S.C. § 2679(d) (1982 ed.). Upon such certification, the action then “shall be removed without bond at any time before trial” to the appropriate federal district court. Id. At that point, “the proceedings [are] deemed a tort action brought against the United States” under the FTCA and “all ref- erences thereto.” Id. (emphasis added). The Drivers Act did not, however, reference substituting the United States as the defendant. The only language in the statute that could author- ize such a change is the “deem[ing]” provision. Id. B Throughout the next two decades, Congress enacted more immunity provisions based on the Drivers Act. Most of these provisions were identical, or nearly identical, to that act. See, e.g., Pub. L. No. 89-311, § 6, 79 Stat. 1156–57 (1965) (medical professionals in the Department of Veterans Affairs, today codified at 38 U.S.C. § 7316); Pub. L. No. 94-464, 90 Stat. 1985– 89 (1976) (the Gonzalez Act, covering military medical profes- sionals, codified at 10 U.S.C. § 1089 & 51 U.S.C. § 20137); Pub. L. No. 96-465, § 2201, 94 Stat. 2153–57 (1980), codified at 22 U.S.C. § 2702 (State Department officials); Pub. L. No. 98-525, § 1631, 98 Stat. 2646–47 (1984) (torts related to radiation from atomic weapons testing programs); Pub. L. No. 99-661, § 1356, 100 Stat. 3996–98 (1986), codified at 10 U.S.C. § 1054 (military No. 25-2428 9 legal malpractice). All these statutes contained the same scope certification and removal procedures for state court cases. In 1970, Congress replicated the text of the Drivers Act for employees of the Public Health Service—the statute relevant here. The Service, a collection of federal agencies, organizes public health initiatives throughout the country and runs sev- eral government-owned hospitals and research institutes. See About Us, COMMISSIONED CORPS OF THE U.S. PUBLIC HEALTH SERVICE (last accessed July 14, 2026), https://www.usphs.gov/. So, Congress amended the Public Health Service Act (PHSA) to immunize the Service’s employees against medical mal- practice claims. Pub. L. No. 91-623, § 4, 84 Stat. 1870–71 (1970). The language in the PHSA amendments is virtually the same as the Drivers Act. Upon certification and removal, a case against a covered employee 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). This statute also includes no language regarding substitution. C Before 1988, then, Congress had enacted a patchwork of provisions immunizing a few pockets of federal employees from tort liability. That changed with the Westfall Act. Using the Federal Drivers Act as a framework, Congress made the FTCA remedy exclusive for all cases against all employees of the federal government who commit torts in the scope of their employment. 28 U.S.C. § 2679(b). In some ways, the Westfall Act perfectly replicated the im- munity provisions that came before. In other ways, it made meaningful changes. No portion of that act reflects this more than the scope certification procedures in § 2679(d)(1)–(2). 10 No. 25-2428 Most previous immunity provisions allowed scope certifica- tion and removal only in cases first filed in state court, but the Westfall Act added one for cases filed against individual de- fendants in federal court. Id. § 2679(d)(1). And though the Westfall Act included the traditional language about the ac- tion being “deemed to be an action or proceeding brought against the United States” after removal, it also added new language saying that “the United States shall be substituted as the party defendant.” Id. § 2679(d)(2). The only pre-Westfall Act immunity provision sharing both features was the National Swine Flu Immunization Pro- gram of 1976. Pub. L. No. 94-380, § 2, 90 Stat. 1113–17. Also known as the “Swine Flu Act,” this statute piloted the use of federal scope certification procedures and automatic, manda- tory substitution of the United States as defendant in all ac- tions involving scope certification. Brown v. United States, 715 F.2d 463, 465, 467–68 (9th Cir. 1983). On this one point, the Westfall Act had more in common with the Swine Flu Act than its direct predecessor, the Drivers Act. Congress made one final change in the Westfall Act, rele- vant here. It added a saving provision, id. § 2679(d)(5), which solved the long-standing “quandary in which a plaintiff may find himself if he has no reason to suspect that the defendant [tortfeasor] is a government employee.” Houston v. USPS, 823 F.2d 896, 901 (5th Cir. 1987). Federal courts had long applied the FTCA’s statute of limitations to these cases, so Congress intervened to fix the problem through the saving provision. Crucially, the Westfall Act’s saving provision expressly tied relief to substitution—not to removal or certification. By its plain terms, it applies whenever “an action or proceeding in which the United States is substituted as the party defendant No. 25-2428 11 under this subsection is dismissed” for failure to exhaust ad- ministrative remedies. 28 U.S.C. § 2679(d)(5) (emphasis added). Under the Westfall Act, of course, removal, certifica- tion, and substitution go together—in cases where the plain- tiff does not request judicial review of the government’s scope certification, “the United States must be substituted as the de- fendant.” Osborn v. Haley, 549 U.S. 225, 241 (2007) (emphasis added). 2 In sum, if a plaintiff sues a government employee in state court, and if the Attorney General certifies that the employee was acting within the scope of employment under the West- fall Act, the United States is automatically substituted as the defendant in place of the employee. This case asks whether the last step is also true under the Westfall Act’s predecessors. D When Congress enacted the Westfall Act, it chose not to repeal any of the preexisting immunity provisions. That in- cludes the 1970 amendments to the PHSA, found at 42 U.S.C. § 233. How the Westfall Act interacts with those statutes has been a source of controversy since it was first enacted. See United States v. Smith, 499 U.S. 160, 169–173 (1991). 2 Throughout this dissent, I describe Westfall Act substitution as “au- tomatic.” I recognize that the Supreme Court has held that substitution might not proceed when plaintiffs challenge the Attorney General’s scope certification decision. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). Still, the Court noted in Lamagno that such cases are “unusual” be- cause “the United States, by certifying, is acting against its financial inter- est, exposing itself to liability.” Id. at 427. In most cases, then, it is fair to call this kind of substitution “automatic,” as the Court indicated in Osborn. 549 U.S. at 246. 12 No. 25-2428 The issues raised by § 233 are becoming more salient be- cause Congress has dramatically expanded the statute’s scope. Though Congress has not amended the original skele- ton since enactment in 1970, see § 233(a)–(f), it added several pieces through the Federally Supported Health Centers Assis- tance Act and subsequent legislation. Pub. L. No. 102-501, 106 Stat. 3268–72 (1992). Prompted by “concern[s] about the level of malpractice premiums for federally-funded neighborhood health centers,” Evans, 132 F.4th at 478, this act created a pro- cedure for deeming clinics and their doctors “employee[s] of the Public Health Service,” allowing any medical malpractice claims to run against the United States. 42 U.S.C. § 233(g)(1)(A). Over time, this statute has ballooned into a complex “thicket,” which “is hardly a model of clarity.” Blumberger v. Tilley, 115 F.4th 1113, 1126 (9th Cir. 2024). Adding complexity is the fact that the number of “deemed” health clinics and em- ployees covered by this statute has grown exponentially in the last decade. This court noted in 2013 that there were “at least three such centers in Chicago besides” the one involved in that case. Arteaga v. United States, 711 F.3d 828, 834 (7th Cir. 2013). That number has increased fivefold. See “Federal Tort Claims Act Search Tool,” HRSA Data Warehouse (last ac- cessed July 14, 2026), https://data.hrsa.gov/topics/health-cen- ters/ftca-search-tool. In this circuit alone, there are nearly eighty “deemed” clinics, indicating that this statute is poised to become more prominent over time. Id. II This case presents the question of whether the United States can be automatically substituted as the party defendant under 42 U.S.C. § 233(c). As the government admits, only one No. 25-2428 13 piece of the statute could accomplish this: the language stat- ing that after certification and removal, the proceedings are “deemed a tort action brought against the United States.” Id. Herrera contends that § 233(c) does not contain the manda- tory substitution language added to the Westfall Act—“the United States shall be substituted”—so the “deeming” provi- sion cannot facilitate “substitution.” To make that call, we must determine the ordinary or legal meaning of the phrase “deemed a tort action brought against the United States.” Craig v. City of Richmond, 179 F.4th 535, 540 (7th Cir. 2026). This court did not consider that issue in Evans; it assumed the government can “substitute[] itself as a de- fendant under § 233(c)” alone. Evans, 132 F.4th at 478; see also id. at 475, 479. Both the text and the statutory history challenge that assumption. A case “deemed” a tort action brought against the United States is one that satisfies the jurisdictional re- quirements of the Federal Tort Claims Act without literally substituting the United States as defendant. To read it any other way renders that language superfluous and contradicts historical practice. A I begin with the plain text of 42 U.S.C. § 233(c). But because that statute is nearly identical to both the Westfall Act and the historical exclusivity provisions discussed above, § 233 should be read in pari materia with these other provisions. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 252–55 (2012). Further, the Westfall Act amended the Federal Drivers Act. Those statutes share many similarities, so the 14 No. 25-2428 “Reenactment Canon” of interpretation also applies. Id. at 256–60. This canon directs interpreters to look at “statutory history” and consider whether Congress reenacted the same language or made significant changes. If the latter, any change “is presumed to entail a change in meaning.” Id. at 256. As the Supreme Court has said, “if a word is ob- viously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Sekhar v. United States, 570 U.S. 729, 733 (2013). Finally, I note the importance of the canon against sur- plusage and the presumption of consistent usage. See Su- pervalu, Inc. v. United Food and Comm. Workers Unions and Empls. Midwest Pension Fund, 155 F.4th 913, 927–28 (7th Cir. 2025). Though evidence in the text of a statute can rebut these presumptions, courts generally assume that similar language in related statutes mean the same thing. Id. So too do we presume different words mean different things—es- pecially when they are used in the same sentence. With these interpretive principles in mind, I start by comparing the text of the two statutes. The PHSA amend- ment, 42 U.S.C. § 233(c), says that upon scope certification, a case commenced in state court: shall be removed [to federal court] … and the proceeding deemed a tort action brought against the United States under the provi- sions of title 28 and all references thereto. The Westfall Act, 28 U.S.C. § 2679(d)(2), is largely the same, but it adds a key phrase. After scope certification, the case: shall be removed [to federal court] …. Such action or proceeding shall be deemed to be an No. 25-2428 15 action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. The minor differences between the two statutes do not matter. See SCALIA & GARNER, supra, at 256 (the reenactment canon “does not apply to stylistic or nonsubstantive changes.”). For our purposes, what matters are the major similarity and difference. Both have a “deeming” provision. But only the Westfall Act has a clause on mandatory substitution. This comparison raises the first doubt about Evans. If the “deeming” provision facilitated substitution of the United States as the defendant, why would Congress (1) keep that provision in the Westfall Act, but (2) add that “the United States shall be substituted” as defendant? Reading the statute this way risks rendering the express substitution language in the Westfall Act superfluous. On the text of these statutes, I see no reason to read the deeming provisions as meaning different things. So, I pre- sume consistent usage of “deemed” across § 233(c) and the Westfall Act. This is especially justified because the Federal Drivers Act, the predecessor to both § 233 and § 2679, also used the same word in the same context. It would be strange to assume Congress changed the phrase’s meaning when it reenacted the same language in both places. Consider now the ordinary and legal meaning of “deem.” When a court “deems” something to be true, it makes it so— even if it is not literally true. Deem, BLACK’S LAW DICTIONARY (4th ed. 1968) (“To hold; consider; adjudge; … determine; treat as if; construe.”) (emphasis added). That comports with the 16 No. 25-2428 ordinary meaning of the term: “to come to view, judge, or classify after some reflection,” or “hold.” Deem, WEBSTER’S THIRD NEW INT’L DICTIONARY 589 (1966). 3 In other words, when a court “deems” something to be true, it creates a legal fiction. It would be odd to assume a case “deemed to be an action brought against the United States” must become one in fact. To see this point, turn to the other two places the word “deem” is used in this statutory scheme. 42 U.S.C. § 233(g) and (o)–(q) allows the Attorney General to “deem” people, and even organizations, as “employees” of the Public Health Service, although they are not literal employees of the agency (and some are not even human beings). And the Westfall Act saving provision allows a claim to “be deemed to be timely pre- sented.” 28 U.S.C. § 2679(d)(5) (emphasis added). Of course, such a claim does not satisfy the literal terms of the Federal Tort Claims Act’s statute of limitations. Id. § 2401. Rather, it is “treat[ed] as if” it is timely. Deem, BLACK’S LAW DICTIONARY (4th ed. 1968). That is the whole point of “deeming” some- thing to be true—it makes it so in fiction, not in fact. Putting these points together, the best interpretation of the deeming provision is that it does not automatically substitute the United States as the defendant in removed actions. In- stead, it does the exact opposite. It allows cases to proceed in federal court after scope certification and removal, even when 3 The definition of “deem” has remained stable over time, but I rely on dictionaries from the time § 233 was enacted. See United States v. Wooden, 174 F.4th 551, 558 (7th Cir. 2026). Its current definition supports my point even more directly: to “deem” is to “treat (something) as if (1) it were really something else, or (2) it has qualities that it does not have.” Deem, BLACK’S LAW DICTIONARY (12th ed. 2024). No. 25-2428 17 the United States has not been substituted as the party de- fendant. B Unsurprisingly, the statutory history supports the plain meaning of the text. For decades, courts deciding cases under federal tort immunity provisions did not act as if automatic substitution was available under the removal provisions. Though substitution did occur, it proceeded through “the or- dinary rules of … procedure,” Hui, 559 U.S. at 811, including motions made under the Federal Rules of Civil Procedure to add the United States as a defendant. For a few illustrative examples, see Certain Underwriters at Lloyd’s v. United States, 511 F.2d 159, 161 (5th Cir. 1975) (PHSA); Flickinger v. United States, 523 F. Supp. 1372, 1373–74 (W.D. Pa. 1981) (same); Kel- ley v. United States, 568 F.2d 259, 261–64 (2d Cir. 1978) (Drivers Act); Tazelaar v. United States, 558 F. Supp. 1369, 1370 (N.D. Ill. 1983) (same); Benitez v. Presbiterian Hosp., 539 F. Supp. 470, 471 (D.P.R. 1982) (Veterans Affairs statute); Lewis v. Schacher, No. 86-3865, 1986 WL 10803 (E.D. Pa. 1986) (Gonzalez Act). See also Smith, 499 U.S. at 162–63 (substitution by motion). Most strikingly, there were several cases in which the United States was not added as a defendant at all. This fact is particularly strong evidence that the “deeming” provision does not provide for automatic substitution. A longstanding principle of cases under the Federal Tort Claims Act is that “an agency or government employee cannot be sued eo nom- ine,” or by its own name, under the Act. Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). This requirement is jurisdictional. Id.; see also F.D.I.C. v. Meyer, 510 U.S. 471, 476–77 (1994). The grant of jurisdiction for FTCA claims authorizes “civil actions on claims against the United States.” 28 U.S.C. § 1346(b)(1) 18 No. 25-2428 (emphasis added). There is no such thing as an “official capac- ity” FTCA suit; the action must run against the United States. Plaintiffs cure these defects through a motion to amend the complaint under Rule 15. Jackson v. Kotter, 541 F.3d 688, 693–97 (7th Cir. 2008); City of Whittier v. U.S. Dep’t of Just., 598 F.2d 561, 562–64 (9th Cir. 1979). Currently, if a plaintiff sues an individual defendant in federal court, and the attorney general does not engage in scope certification, see 28 U.S.C. § 2679(d)(1), the action will be dismissed for lack of subject matter jurisdiction absent an amended complaint. Historically, though, in many cases the United States was not substituted as a defendant at all after scope certification and removal. See, e.g., Van Houten v. Ralls, 411 F.2d 940, 942 (9th Cir. 1969) (Drivers Act); McGowan v. Williams, 623 F.2d 1239, 1241 (7th Cir. 1980) (same); Wollman v. Gross, 637 F.2d 544, 546 (8th Cir. 1980) (same); Nasuti v. Scannell, 792 F.2d 264, 265 (1st Cir. 1986); Quilico v. Kaplan, 749 F.2d 480, 481 (7th Cir. 1984) (Veterans Affairs statute); Powers v. Schultz, 821 F.2d 295, 296 (5th Cir. 1987) (district court grants motion to substitute in Gonzalez Act case, but no change in the case caption); Lien v. Beehner, 453 F. Supp. 604, 605–06 (N.D.N.Y. 1978) (PHSA case with no substitution). And in other cases, the court con- sidered a motion to substitute many months after the govern- ment removed the case. E.g., Apple v. Jewish Hosp. and Med. Ctr., 570 F. Supp. 1320, 1322 (E.D.N.Y. 1983); Miller v. United States, 741 F.2d 148, 151 (7th Cir. 1984). If the deeming provision was supposed to facilitate substi- tution, it did not do so in these cases. More importantly, such cases should have been dismissed for lack of subject matter jurisdiction. That they were not reveals the main effect of the “deeming” provisions: they satisfied the FTCA’s No. 25-2428 19 jurisdictional requirements without formally substituting the United States as the defendant in the case. That comports with the ordinary meaning of the text. Courts treat “deemed” cases as if they satisfy the plain terms of the jurisdictional statute. Some courts explicitly recognized the connection between the deeming provision and FTCA jurisdiction. In Henderson v. United States, for example, several injured plaintiffs sued a government employee in Oklahoma state court under the Federal Drivers Act. 429 F.2d 588, 589 (10th Cir. 1970). After certification and removal, the government tried to dismiss the case on statute of limitations grounds. 4 But the district court denied the motion, and the Tenth Circuit affirmed. In its view, the “deeming” language transformed the case, such that “the United States became a party as a matter of law when the ac- tion was filed in the state court, regardless of when it was for- mally substituted as a party defendant.” Id. at 590–91. That is, the text of the Drivers Act made the case run against the United States independent of who was listed in the caption. Nearly fifteen years later, this court adopted similar rea- soning. In Miller v. United States, the government argued that a suit was untimely “because plaintiff did not formally add the United States as a party defendant until … more than six months after” her administrative claim was filed. 741 F.2d at 151. The court disagreed. Noting the action was “deemed a tort action brought against the United States … upon certifi- cation and removal” (not substitution), the court held that “the United States became a proper party to the action long 4 The conduct in Henderson occurred before the FTCA’s statute of lim- itations was amended to require exhaustion of administrative remedies. See Pub. L. No. 89-506, § 10, 80 Stat. 308 (1966). 20 No. 25-2428 before the statute of limitations expired.” Id. (citation modi- fied). Miller survived in federal court for nearly six months without the United States being added as a defendant, even though that should have been a jurisdictional defect. In this way, cases removed and certified under the pre- Westfall Act immunity provisions became de facto “official capacity FTCA suits,” even though such cases are not allowed otherwise. This court recognized as much in McGowan v. Wil- liams. 5 That case held that the FTCA’s statute of limitations began running when the plaintiff filed in state court, not when the government removed the case. 623 F.2d at 1240. Along the way, the court cited the Tenth Circuit’s Henderson decision for the proposition that the “Attorney General’s certification means that the plaintiff can no longer sue the driver in his in- dividual capacity.” Id. at 1242. This court expressly tied this point to the deeming provision. Id.; see also Thomason v. Sanchez, 539 F.2d 955, 958 (3d Cir. 1976) (the Drivers Act “had the effect of limiting anyone injured by Sanchez in his official capacity to a lawsuit under the [FTCA]” (emphasis altered)). The government does point to two pre-Westfall Act cases which may appear to involve automatic substitution under the Federal Drivers Act. Carr v. United States, 422 F.2d 1007, 1009 (4th Cir. 1970), and United States v. Le Patourel, 571 F.2d 405, 406 and n.1 (8th Cir. 1978). But neither case describes how substitution occurred. Without more, I assume that these cases involved substitution by an independent motion—as was the most common method at the time. See, e.g., Wilkinson v. United States, 677 F.2d 998, 999, 1001 (4th Cir. 1982) (motion 5 The Supreme Court cited McGowan with approval in Lamagno, 515 U.S. at 425. No. 25-2428 21 used for substitution); United States v. Slone, 405 F.2d 1033, 1034 (8th Cir. 1969) (same). And even if they did not, these one-off examples would not overcome the weight of practice. In contrast to these ambiguous examples, another statute shows the importance of text authorizing substitution: the Swine Flu Act. As noted above, this act was the only pre-West- fall Act statute containing language about substitution. In the early 1980s, the D.C. Circuit considered a mass tort suit about the federal government’s hasty efforts to vaccinate people against the Swine Flu. Hunt v. United States, 636 F.2d 580, 589– 90 (D.C. Cir. 1980); see also In re Swine Flu Immunization Prods. Liab. Litig., 533 F. Supp. 703, 705 n.2 (D. Utah 1982) (summa- rizing the nationwide litigation). That court’s description of the Swine Flu Act noted the statute’s “unique approach to the problem of liability” re- quired treating “the United States [a]s a substitute defend- ant.” Hunt, 636 F.2d at 591, 597. In a similar case, the Ninth Circuit was even more explicit. Claims against manufacturers covered by the act must “be brought against the United States, utilizing the procedures of the Tort Claims Act, with the United States substituting … as the party defendant.” Brown, 715 F.2d at 465. When it summarized the substitution clause, the court bluntly observed, “The only reason why the United States had to be named the defendant here is simply because the Swine Flu Act says so.” Id. at 467–68. And in a footnote, the court rejected the government’s attempt to equate the Swine Flu Act with the Drivers Act and the other “federal mal- practice immunity statutes.” Id. at 467 n.5. Congress knew how to draft a statute unambiguously providing for automatic substitution. It did so in the Swine Flu Act, and again in the Westfall Act. But when it enacted the 22 No. 25-2428 latter, it chose not to amend the other pre-Westfall Act im- munity statutes to make this procedure available. 6 Courts should not amend the statute for Congress. * * * In pre-Westfall Act federal tort suits, courts did not often consider the question of how, or whether, the United States became a defendant. When they did, they confirmed the plain meaning of the “deemed a tort action” language. Rather than substituting the government as the defendant, the statute per- mitted cases to proceed in federal court without substitution. Of course, the “deeming” provision also made substitution appropriate under the ordinary rules of civil procedure. Cf. McGowan, 623 F.2d at 1242–44. But the whole point of the pro- vision is that it obviated the need for such a change. III Evans assumed substitution could occur under § 233(c) alone. But as I understand the plain meaning of that statute, nothing in its text supports that assumption. That means the opinion incorrectly held that the Westfall Act’s saving provi- sion did not apply. To be fair, the panel of our court that decided Evans is not to blame. The fault for this confusion lies with the Executive 6 Congress did so for good reasons. For example, it avoided the exact problem that the Supreme Court faced in Lamagno. Before proceeding with the case in federal court under the Drivers Act, the Court exercised a gate- keeping function, deciding whether the case should be remanded to state court. Lamagno, 515 U.S. at 425–26; see also 28 U.S.C. § 2679(d) (1982 ed.); Van Houten, 411 F.2d at 942–43 (determining scope of remand provision). Congress removed the language creating that rule in the Westfall Act, but that language remains in § 233(c). No. 25-2428 23 Branch. At some point