Anne Talignani v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1631

ANNE TALIGNANI, as Special Administrator of the Estate of

David Talignani, deceased,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 19-cv-1018 — Mark A. Beatty, Magistrate Judge.

____________________

SUBMITTED NOVEMBER 9, 2021∗ — DECIDED FEBRUARY 10, 2022

____________________

Before EASTERBROOK, KANNE, and BRENNAN, Circuit

Judges.

BRENNAN, Circuit Judge. A patient died after surgery at a

university hospital and his estate sued the United States

∗ This case was originally set for oral argument, which the parties

jointly moved to waive. We granted their motion and this case was sub-

mitted on the briefs and the record. See FED. R. APP. P. 34(a)(1) & (2)(C).

2 No. 21-1631

under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The

Act waives sovereign immunity for certain torts committed by

“employee[s] of the Government.” Because the estate’s claim

does not involve a government employee, the district court

correctly entered summary judgment for the United States.

I

David Talignani was a United States military veteran. In

2015, he consulted a neurosurgeon with the Department of

Veterans Affairs Saint Louis Health Care System (“VA”). The

neurosurgeon recommended that he undergo neck surgery,

but because the VA could not perform a timely surgery, the

surgeon suggested Talignani obtain “evaluation and treat-

ment” at Saint Louis University Hospital (“Hospital”). Talig-

nani agreed and expressed a preference for the Hospital

because he had previously undergone a surgery there.

To begin the referral process, a nurse practitioner submit-

ted an internal consult request seeking the VA’s approval to

secure treatment for Talignani at a non-VA provider. This re-

quest was granted, meaning the VA agreed to pay for “evalu-

ation and treatment rendered pursuant to the non-VA

provider’s plan of care.” The VA then sent a request for out-

patient services to the Hospital. The Hospital agreed to treat

Talignani and, in preparation, asked the VA to conduct sev-

eral pre-operative tests. In January 2016, Dr. Phillippe Mercier

performed neck surgery on Talignani using the Hospital’s fa-

cility and staff. Talignani died shortly after being released.

As administrator of her deceased husband’s estate, Anne

Talignani (or “the estate”) alleges her husband was “pre-

scribed excessive pain medication prior to his discharge from

St. Louis University Hospital,” which proximately caused his

No. 21-1631 3

death. She first sought recourse by filing an administrative

complaint with the VA, which was denied. Then, she filed this

federal lawsuit. The government moved for summary judg-

ment, arguing that her claim did not involve an “employee of

the Government.” In support of its motion, the government

submitted two affidavits from VA employees; in response, the

estate did not submit any evidence. The district court ruled

for the government and this timely appeal followed. We re-

view the district court’s summary-judgment decision de

novo. Woodson v. United States, 990 F.3d 515, 519 (7th Cir.

2021).

II

The Federal Tort Claims Act “waive[s] the sovereign im-

munity of the United States for certain torts committed by fed-

eral employees.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (cit-

ing 28 U.S.C. § 1346(b)). “[I]n the unique context of the FTCA,

all elements of a meritorious claim are also jurisdictional.”

Brownback v. King, 141 S. Ct. 740, 749 (2021). So, failure to es-

tablish any element also eliminates the basis for subject matter

jurisdiction. Id.

To establish a claim under the Act, the plaintiff must show,

among other things, that his injury was caused by an “em-

ployee of the Government.” 28 U.S.C. § 1346(b); Meyer, 510

U.S. at 477. Whether a person is an “employee of the Govern-

ment” is “a pure question of law and a matter of statutory in-

terpretation.” Ezekiel v. Michel, 66 F.3d 894, 899 (7th Cir. 1995).

The statutory definition of “employee of the Government”

at 28 U.S.C. § 2671 controls, even if it contradicts the phrase’s

ordinary meaning. Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020)

(“When a statute includes an explicit definition, we must

4 No. 21-1631

follow that definition, even if it varies from a term’s ordinary

meaning.” (quoting Digit. Realty Tr., Inc. v. Somers, 138 S. Ct.

767, 776 (2018))). An “‘[e]mployee of the Government’ in-

cludes” five categories of personnel:

1. “officers or employees of any federal agency”;

2. “members of the military or naval forces of the

United States”;

3. “members of the National Guard [with certain con-

ditions]”;

4. “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 with-

out compensation”; and

5. “any officer or employee of a Federal public de-

fender organization [with one exception].”

See 28 U.S.C. § 2671.

We pause to make two observations. First, § 2671 begins

with the word “includes,” which ordinarily introduces exem-

plary, not exhaustive language. Richardson v. Nat'l City Bank

of Evansville, 141 F.3d 1228, 1232 (7th Cir. 1998) (“‘Include’ is

a word of illustration, not limitation.”); ANTONIN SCALIA &

BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 132–33 (2012). So, § 2671 does not necessarily

contain every instance in which a person is an “employee of

the Government.”

Second, this case does not concern categories 2, 3, or 5 of

the statutory definition because the military, National Guard,

or Federal public defenders are not involved. So, we focus on

categories 1 and 4. Category 1—“officers or employees of any

No. 21-1631 5

federal agency”—we will call the federal-employee clause.1

Category 4—“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 compensa-

tion”—we will call the official-capacity clause.

The Supreme Court and this court have previously inter-

preted § 2671. These decisions inform our reading of the fed-

eral-employee and official-capacity clauses, and thus our de-

cision here.

First up are two Supreme Court decisions. In Logue v.

United States, 412 U.S. 521 (1973), the Court determined that

county jail employees were not “employee[s] of the Govern-

ment.” Under the federal-employee clause, the plaintiffs ar-

gued that the county jail was a “federal agency.” 412 U.S. at

526. Under the official-capacity clause, the plaintiffs claimed

that the jail employees were “acting on behalf of” a federal

agency—the Federal Bureau of Prisons. Id.

Whether the county jail was a federal agency turned on

§ 2671’s contractor exemption. To resolve this question, the

Court approved the use of the “law of torts and agency to de-

fine ‘contractor.’” Id. at 528. Under these principles, courts

look to the “division of responsibility” and who controls the

“day-to-day operations” to assess the “traditional distinction”

between employees and independent contractors. See id. at

527–29. Although the contract between the Bureau of Prisons

and the county jail prescribed standards and rules, “the

1 “[F]ederal agency” is further defined to exclude “contractors.” 28

U.S.C. § 2671. This is called the “contractor exemption.” Logue v. United

States, 412 U.S. 521, 526 (1973). The terms “officers,” “employees,” and

“contractors” are undefined.

6 No. 21-1631

agreement [gave] the United States no authority to physically

supervise the conduct of the jail’s employees.” Id. at 529–30.

Accordingly, the Court upheld the court of appeals’ “holding

that the [county jail] employees were employees of a ‘contrac-

tor with the United States,’ and not, therefore, employees of a

‘Federal agency.’” Id.

The Logue plaintiffs also argued that the county jail em-

ployees were “employee[s] of the Government” under the of-

ficial-capacity clause. Id. at 526. 2 The Court first noted that the

legislative history “sheds virtually no light on the congres-

sional purpose in enacting the ‘acting on behalf of’ language

of § 2671.” Id. at 530. The government’s position was that “the

language is designed to cover special situations such as the

‘dollar-a-year’ man who is in the service of the Government

without pay, or an employee of another employer who is

placed under direct supervision of a federal agency pursuant

to contract or other arrangement.” Id. at 531. In contrast, cir-

cuit judges who dissented from the denial of rehearing en

banc expressed the view that a person “act[s] on behalf of a

federal agency” when he “assume[s] obligations and respon-

sibilities virtually identical to those of a salaried Federal em-

ployee.” Id. The Court rejected this proposition because it

would render § 2671’s exclusion of contractors “virtually

meaningless.” Id. at 532. But the Court did not expressly adopt

2 The court of appeals in Logue did not address this argument in its

original panel opinion. See Logue v. United States, 459 F.2d 408 (5th Cir.

1972). Three judges dissented from the denial of rehearing en banc, point-

ing out that the plaintiff’s argument under the official-capacity clause

“was barely mentioned in the panel’s opinion, much less refuted by it.”

Logue v. United States, 463 F.2d 1340, 1342 (5th Cir. 1972) (Brown, C.J., dis-

senting from denial of rehearing en banc).

No. 21-1631 7

the government’s competing interpretation of § 2671, only

saying the legislative history “afford[ed] some support” to

that view. Id. at 531.

The Court next encountered § 2671 three years later in

United States v. Orleans, 425 U.S. 807 (1976), where it analyzed

whether a federally funded “community action agency” was

a “federal agency” or a “contractor.” 425 U.S. at 809. The

Court summarized Logue’s guidance regarding the federal

agency-contractor distinction: “[T]he question here is not

whether the community action agency receives federal money

and must comply with federal standards and regulations, but

whether its day-to-day operations are supervised by the Fed-

eral Government.” Id. at 815. Applying this standard to the

facts, the Court said, “[t]he underlying statute emphasizes

that a community action agency is a local, not a federal, enter-

prise; thus agents and employees of a local community action

agency are not ‘employee[s] of the [Federal] government.’” Id.

at 816 (first alteration added). The Court then relied on legis-

lative history to confirm its view. Id. at 817–19. Unlike Logue,

Orleans only mentioned the federal-employee clause—it did

not address the meaning of the official-capacity clause.

Turning to this court’s precedents, the parties point us to

two key cases: Quilico v. Kaplan, 749 F.2d 480 (7th Cir. 1984),

and Ezekiel v. Michel, 66 F.3d 894 (7th Cir. 1995). Both were

decided after Logue and Orleans.

Quilico involved physicians temporarily serving at a VA

hospital. The court reviewed Logue and Orleans, ascribing to

these cases the creation of the “strict control test.” 749 F.2d at

482. “Under this test, before the defendants may be consid-

ered government employees, it must be demonstrated that

the government is authorized to direct or control the detailed

8 No. 21-1631

performance of the defendants’ work.” Id. Notwithstanding

its recognition of this test, the Quilico court held “the strict

control test … is inappropriate in determining whether Con-

gress intended that a [temporary VA] physician is to be im-

munized from liability” because if the strict control test were

applied, “almost all physicians and surgeons operating

within the VA program who are sued for medical malpractice,

including those permanently employed, would not be im-

mune.” Id. at 485. As a result, “anytime a physician or surgeon

is called upon to exercise independent judgment, he or she

would face the risk of liability,” and “this obviously was not

the intent of Congress.” Id.

Having decided the strict control test did not apply to phy-

sicians, this court once more turned to congressional intent to

interpret the relevant statutes. Id. According to the court, the

“legislative history … indicate[d] that it was the intent of Con-

gress that the immunity granted to the VA physicians and

surgeons be broad.” Id. at 486–87. Equally obvious was Con-

gress’s intent to extend immunity—via a statute making the

FTCA the exclusive remedy for suits against VA health care

employees—to those physicians serving on a temporary ba-

sis. Id. at 487. In effect, the temporary-service doctors were

treated as employees, receiving the benefit of immunity from

liability. The Quilico court did not mention the official-capac-

ity clause.

In Ezekiel, this court again interpreted § 2671, this time for

physicians completing their medical residency at a VA hospi-

tal. The plaintiff argued that a medical resident was an inde-

pendent contractor, not an employee. See 66 F.3d at 899. But

the court disagreed, holding that “[t]he statutory scheme un-

der which Dr. Michel was appointed … clearly establishes

No. 21-1631 9

that he was a federal employee rather than an independent

contractor.” Id. at 900. So, Ezekiel relied on statutory language,

rather than the strict control test, to determine whether a med-

ical resident was a federal employee, expressly reaffirming

Quilico’s rejection of the strict control test where the “physi-

cians [are] clearly covered by the FTCA.” Id. at 902–03.

Ezekiel identified a caveat, though. The strict control test

may “be a rational approach” in situations where the physi-

cian’s provision of services was “pursuant to a contractual

agreement” and the physician’s relation “to the government

is not unambiguously governed by statute to be an employer-

employee relationship.” Id. With this in mind, the court alter-

natively held that a medical resident would be an employee

even under the strict control test because he was being trained

and subject to “a higher degree of supervision and control …

than would a private physician acting as an independent con-

tractor under contract with the government.” Id. Like Quilico,

the court’s analysis did not distinguish between the federal-

employee and official-capacity clauses.

To summarize the applicable precedents from the Su-

preme Court (Logue and Orleans) and our court (Quilico and

Ezekiel), courts may reference traditional principles of agency

law, i.e., the strict control test, when interpreting the unde-

fined terms “employee” and “contractor.” But courts should

begin with the statutory language if federal law creates the

relationship under review. If the statutory framework makes

clear that an individual is an employee or a contractor, the

analysis ends. See Ezekiel, 66 F.3d at 900–03.

This provides the approach to applying the federal-em-

ployee clause. But, as explained above, an “employee of the

Government” includes both “employees of any federal

10 No. 21-1631

agency” and “persons acting on behalf of a federal agency in

an official capacity.” These clauses are separate and distinct.

To date, neither the Supreme Court nor this court has inter-

preted the phrase “persons acting on behalf of a federal

agency in an official capacity.”3 Instead, the case law focuses

on who qualifies as an “employee[] of [a] federal agency.”

Failing to give meaning to both clauses violates the surplus-

age canon that recommends, “[i]f possible, every word and

every provision is to be given effect.” SCALIA & GARNER, supra,

at 174. And the plain meaning of § 2671 contemplates daylight

between the two clauses—a situation where a person is not an

“officer[] or employee[] of any federal agency” yet acts “on

behalf of a federal agency in an official capacity.” 28 U.S.C.

§ 2671.

With this in mind, we turn to the official-capacity clause.

Although not tasked with describing each scenario in which

a person may be an “employee of the Government” under this

clause, we briefly summarize judicial opinions and statutes

that offer us some guidance.

A good place to start is the government’s position in Logue,

where it contended the official-capacity clause covered at

least two “special situations”: (1) “the ‘dollar-a-year’ man

who is in the service of the Government without pay,” and

3The Ninth Circuit has read Logue to apply the control test to both

clauses. Sisto v. United States, 8 F.4th 820, 830 (9th Cir. 2021) (“[T]he Su-

preme Court applies the ordinary ‘control test’ to [the official-capacity

clause] of § 2671.”). But Logue did not adopt an interpretation of the offi-

cial-capacity clause. Similarly, the Second Circuit has treated both clauses

identically, concluding that they are to “be applied with an eye to general

agency law.” Witt v. United States, 462 F.2d 1261, 1263 (2d Cir. 1972). This

approach, though, would erode any distinction between the two clauses.

No. 21-1631 11

(2) “an employee of another employer who is placed under

direct supervision of a federal agency pursuant to contract or

other arrangement.” Id. at 531.

The first “special situation,” those serving the United

States without pay, is supported by Congress’s express recog-

nition that certain federal volunteers are “employee[s] of the

Government” for purposes of the Act. See, e.g., 16 U.S.C.

§ 4604(c)(2) (volunteers with Department of the Interior’s

Take Pride in America Program); 42 U.S.C. §§ 7142(b)(3),

7142c(b)(2)(A) (volunteers with the Department of Energy’s

National Atomic Museum and American Museum of Science

and Energy); 42 U.S.C. § 12655n(b)(3) (participants—who re-

ceive a living allowance—in the American Conservation and

Youth Service Corps). Similarly, Job Corps enrollees, who re-

ceive free vocational training and a basic living allowance, are

designated as “employee[s] of the Government.” 29 U.S.C.

§§ 3198, 3200(a), 3207(a)(4).

Elsewhere in the U. S. Code, law enforcement officers who

do not work for a federal agency, yet temporarily serve in a

federal capacity, are designated “employee[s] of the Govern-

ment.” See 2 U.S.C. § 1974(b) (special officers of the Capitol

Police, temporarily appointed officers who ordinarily serve

with a different government agency); 49 U.S.C. § 44922(e)

(state or local law enforcement officers who are deputized by

the Transportation Security Administration to carry out fed-

eral airport security); see also Provancial v. United States, 454

F.2d 72, 75 (8th Cir. 1972) (holding that deputized special of-

ficers of the Department of Interior were “employee[s] of the

Government” under the official-capacity clause).

As for the judiciary, courts have recognized that, in some

cases, a private party cooperating with law enforcement, e.g.,

12 No. 21-1631

a confidential informant, may be an “employee of the Gov-

ernment.” See U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va.,

LLC, 899 F.3d 236, 250 (4th Cir. 2018); Patterson & Wilder Const.

Co. v. United States, 226 F.3d 1269, 1278 (11th Cir. 2000); Leaf v.

United States, 661 F.2d 740, 741 (9th Cir. 1981).

Volunteers, special law enforcement officers, and confi-

dential informants—a noncomprehensive list—demonstrate

the daylight between the federal-employee and official-capac-

ity clauses. These positions represent the unusual scenario

where an individual is not a federal officer or employee, nor

a federal contractor, yet represents the federal government in

an official capacity and thus falls within the Act’s coverage.

These examples adequately sketch the official-capacity

clause’s contours for our purposes.

III

The estate bears the burden to prove that the surgeon, Dr.

Mercier, was an “employee of the Government.” See Tri-State

Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir.

2003) (“A party bringing suit against the United States bears

the burden of proving that the government has unequivocally

waived its immunity.”). Using the two available options un-

der § 2671 applicable here—the federal-employee clause or

the official-capacity clause—and relying on the statutory lan-

guage and case law discussed above, the estate could meet

that burden by offering evidence that would permit a reason-

able juror to conclude one of the following:

No. 21-1631 13

1. Dr. Mercier4 was an “employee” of the VA;

2. Dr. Mercier was an “employee” of the Hospital and

the Hospital was a “federal agency,” not a contrac-

tor;

3. Dr. Mercier was “acting on behalf of [the VA] in an

official capacity, temporarily or permanently in the

service of the United States”; or

4. Dr. Mercier was otherwise an “employee of the

Government” under an inexhaustive interpretation

of “includes.”

But the estate did not submit any evidence. The record con-

sists solely of two declarations provided by the government.

To the extent the estate relies on the pleadings, it “violat[es]

the rule that a non-moving party may not rely solely on the

allegations in [its] complaint to defeat summary judgment.”

Shermer v. Ill. Dep’t of Transp., 171 F.3d 475, 478 (7th Cir. 1999).

The undisputed facts in the record establish that Dr. Mer-

cier was not employed by the VA in January 2016 or any other

time, nor did he hold privileges at the VA hospital. Instead,

the VA authorized payment for Talignani’s neck surgery ac-

cording to an outside provider’s plan of care, not its own. That

4 We agree with the district court that the sole issue before us is

whether Dr. Mercier was an “employee of the Government.” The estate

mentions “staff” but does not identify anyone else or explain why that

information is unavailable. FED. R. CIV. P. 56(d). Because the plaintiff bears

the burden of proving that the alleged injury was caused by an “employee

of the Government,” a vague reference to “staff” is insufficient. Tonelli v.

United States, 60 F.3d 492, 496 (8th Cir. 1995) (affirming summary judg-

ment against plaintiffs who “did not provide sufficient details” regarding

alleged misconduct by unnamed postal employees).

14 No. 21-1631

outside provider became the Hospital when it referred Talig-

nani for evaluation and treatment. The VA conducted a few

pre-operative procedures, but Dr. Mercier performed the sur-

gery with the assistance of Hospital staff and without VA su-

pervision. Based on these undisputed facts, the district court

properly entered summary judgment for the United States.

The evidence indisputably shows that Dr. Mercier was not a

VA employee, and the statutory framework and traditional

principles of agency law demonstrate that the Hospital was

not a federal agency.

This removes the federal-employee clause from the pic-

ture. Beginning with the statutory text, Ezekiel, 66 F.3d at 903,

the provision authorizing the VA to make payments to non-

VA hospitals for medical treatment does not subject non-VA

facilities to employment terms or conditions—it treats non-

VA facilities as contractors. See 38 U.S.C. § 1703 (2018). Indeed,

the government points out that the statute, as it existed at the

time of the surgery, referred to these outpatient care agree-

ments as “contracts.” Id. This stands in contrast to Quilico and

Ezekiel, which involved a statutory provision permitting the

Secretary of Veterans Affairs to “employ” individuals for var-

ious positions. 38 U.S.C. § 7405.

Traditional principles of agency law confirm this view.

Logue, 412 U.S. at 528. The VA did not control or supervise the

surgery conducted by Dr. Mercier in any way, thus negating

any potential agency relationship between the VA and the

Hospital. Moreover, the mere payment for services rendered

does not create a principal-agent relationship. See Orleans, 425

U.S. at 816 (“The Federal Government in no sense controls

‘the detailed physical performance’ of all the programs and

projects it finances by gifts, grants, contracts, or loans.”).

No. 21-1631 15

A familiar scenario illustrates this point. An individual

schedules a routine medical procedure at his local doctor’s of-

fice, for which his private insurance company pays. If the pro-

cedure goes awry, no one expects that the patient could sue

the insurer for medical malpractice. Rather, the suit is

properly brought against the entity responsible for the alleged

negligence—those involved in administering treatment. So

too here. The VA’s payment for Talignani’s medical care did

make it legally responsible for that care.

As to the official-capacity clause, there is no evidence that

Dr. Mercier was acting on behalf of the VA in an official ca-

pacity. Instead, the record shows that Dr. Mercier operated

independently, using the Hospital’s resources. As the district

court observed, “[t]here is no indication that Dr. Mercier

maintained an office at the VA or used support staff, supplies,

or equipment furnished by the VA.” Finally, we note that the

estate does not suggest Dr. Mercier is otherwise an “employee

of the Government,” assuming § 2671 should be read as an

inexhaustive list.

The estate failed to make a strong showing under either

the federal-employee or official-capacity clauses. The undis-

puted evidence shows that (1) Dr. Mercier was not employed

by the VA, and (2) the Hospital was not a federal agency—

thus, the federal-employee clause is ruled out. The estate also

offered no evidence that Dr. Mercier was (3) acting on behalf

of the VA in an official capacity, or (4) otherwise an “em-

ployee of the Government” under an inexhaustive interpreta-

tion of “includes.”

For these reasons, the Act’s limited waiver of sovereign

immunity does not extend to this lawsuit. We AFFIRM the de-

cision of the district court.