Talignani v. United States

• Decision Date: 10 February 2022
• Docket Number: No. 21-1631,21-1631
• Citation: 26 F.4th 379
• Parties: Anne TALIGNANI, as Special Administrator of the Estate of David Talignani, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

26 F.4th 379

Anne TALIGNANI, as Special Administrator of the Estate of David Talignani, deceased, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 21-1631

United States Court of Appeals, Seventh Circuit.

Submitted November 9, 2021^*

Decided February 10, 2022

John T. Papa, Edward John Szewczyk, Attorneys, Pratt & Tobin, P.C., East Alton, IL, for Plaintiff-Appellant.

David J. Pfeffer, Attorney, Office of the United States Attorney, Civil Division, for Defendant-Appellee.

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 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 treatment" at Saint Louis University Hospital ("Hospital"). Talignani agreed and expressed a preference for the Hospital because he had previously undergone a surgery there.

To begin the referral process, a nurse practitioner submitted an internal consult request seeking the VA's approval to secure treatment for Talignani at a non-VA provider. This request was granted, meaning the VA agreed to pay for "evaluation and treatment rendered pursuant to the non-VA provider's plan of care." The VA then sent a request for outpatient services to the Hospital. The Hospital agreed to treat Talignani and, in preparation, asked the VA to conduct several pre-operative tests. In January 2016, Dr. Phillippe Mercier performed neck surgery on Talignani using the Hospital's facility 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 "prescribed excessive pain medication prior to his discharge from St. Louis University Hospital," which proximately caused his 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 judgment, 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 review 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 immunity of the United States for certain torts committed by federal employees." FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing 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 , ––– U.S. ––––, 141 S. Ct. 740, 749, 209 L.Ed.2d 33 (2021). So, failure to establish 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 "employee of the Government." 28 U.S.C. § 1346(b) ; Meyer , 510 U.S. at 477, 114 S.Ct. 996. Whether a person is an "employee of the Government" is "a pure question of law and a matter of statutory interpretation." 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 , ––– U.S. ––––, 141 S. Ct. 486, 490, 208 L.Ed.2d 295 (2020) ("When a statute includes an explicit definition, we must follow that definition, even if it varies from a term's ordinary meaning." (quoting Digit. Realty Tr., Inc. v. Somers , ––– U.S. ––––, 138 S. Ct. 767, 776, 200 L.Ed.2d 15 (2018) )). An " ‘[e]mployee of the Government’ includes" 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 conditions]";

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 compensation"; and

5. "any officer or employee of a Federal public defender 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 exemplary, 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 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 compensation"—we will call the official-capacity clause.

The Supreme Court and this court have previously interpreted § 2671. These decisions inform our reading of the federal-employee and official-capacity clauses, and thus our decision here.

First up are two Supreme Court decisions. In Logue v. United States , 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), the Court determined that county jail employees were not "employee[s] of the Government." Under the federal-employee clause, the plaintiffs argued that the county jail was a "federal agency." 412 U.S. at 526, 93 S.Ct. 2215. 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 define ‘contractor.’ " Id. at 528, 93 S.Ct. 2215. 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, 93 S.Ct. 2215. Although the contract between the Bureau of Prisons and the county jail prescribed standards and rules, "the agreement [gave] the United States no authority to physically supervise the conduct of the jail's employees." Id. at 529–30, 93 S.Ct. 2215. Accordingly, the Court upheld the court of appeals' "holding that the [county jail] employees were employees of a ‘contractor with the United States,’ and not, therefore, employees of a ‘Federal agency.’ " Id.

The Logue plaintiffs also argued that the county jail employees were "employee[s] of the Government" under the official-capacity clause. Id. at 526, 93 S.Ct. 2215.² The Court first noted that the legislative history "sheds virtually no light on the congressional purpose in enacting the ‘acting on behalf of’ language of § 2671." Id. at 530, 93 S.Ct. 2215. 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, 93 S.Ct. 2215. In contrast, circuit 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 responsibilities virtually identical to those of a salaried Federal employee." Id. The Court rejected this proposition because it would render § 2671's exclusion of contractors "virtually meaningless." Id. at 532, 93 S.Ct. 2215. But the Court did not expressly adopt the government's competing interpretation of § 2671, only saying the legislative history "afford[ed] some support" to that view. Id. at 531, 93 S.Ct. 2215.

The Court next encountered § 2671 three years later in United States v. Orleans , 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), where it analyzed whether a federally funded "community action agency" was a "federal agency" or a "contractor." 425 U.S. at 809, 96 S.Ct. 1971. 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 Federal Government." Id. at 815, 96 S.Ct. 1971. 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, enterprise; thus agents and employees of a local community action agency are not ‘employee[s] of the [Federal] government.’ " Id. at 816, 96 S.Ct. 1971 (first alteration added). The Court then relied on legislative history to confirm its view. Id. at 817–19, 96 S.Ct. 1971. Unlike Logue, Orleans only mentioned the federal-employee clause—it did not address the meaning of the official-capacity clause.

Turning to this...