Anne Talignani v. United States, 26 F.4th 379

David Talignani, a VA patient, was referred for neck surgery to Saint Louis University Hospital after the VA could not provide timely treatment; the VA authorized payment for non-VA care under the provider’s plan of care.
Dr. Phillippe Mercier performed the surgery at the Hospital using Hospital staff and facilities; Talignani died shortly after discharge.
Anne Talignani (executor of the estate) alleged excessive prescribed pain medication at discharge caused the death and filed an FTCA suit against the United States after the VA denied her administrative claim.
The government moved for summary judgment, submitting two VA declarations; the estate submitted no evidentiary response and relied on its complaint.
The district court granted summary judgment for the United States; the Seventh Circuit reviewed de novo and affirmed, holding the estate failed to prove Mercier was an "employee of the Government" under 28 U.S.C. § 2671.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Mercier was an "employee of the Government" under the FTCA (federal-employee clause)	Mercier provided care pursuant to a VA referral/payment, so he should be covered as a government employee	Mercier was not employed by the VA, had no VA privileges, and acted as a Hospital physician	Mercier was not a VA employee; estate produced no evidence to create a dispute. Summary judgment affirmed
Whether the Hospital was a "federal agency" rather than a contractor	VA payment and referral made the Hospital effectively a federal actor	Statutory scheme and lack of VA day-to-day control show the Hospital was a contractor, not a federal agency	Hospital treated as contractor; federal-employee clause inapplicable
Whether Mercier was "acting on behalf of the VA in an official capacity" (official-capacity clause)	Referral/payment and treatment under VA authorization could show Mercier acted in an official VA capacity	No evidence of VA supervision, use of VA offices/staff/equipment, or other indicia of official capacity	No evidence Mercier acted in an official VA capacity; estate failed to meet burden
Procedural/burden issue on summary judgment	Estate relied on complaint and administrative denial without evidentiary submissions	Plaintiff must prove waiver of sovereign immunity; cannot rely solely on pleadings at summary judgment	Estate bore burden to prove FTCA coverage and failed to present evidence; summary judgment proper

Logue v. United States, 412 U.S. 521 (1973) (contractor exemption and use of control/day-to-day supervision test to distinguish federal employees from contractors)
United States v. Orleans, 425 U.S. 807 (1976) (federal supervision of day-to-day operations determines agency vs. local contractor status)
Quilico v. Kaplan, 749 F.2d 480 (7th Cir. 1984) (rejected strict control test for VA physicians covered by statutory framework; focus on congressional intent)
Ezekiel v. Michel, 66 F.3d 894 (7th Cir. 1995) (medical residents covered as federal employees where statutory scheme so provides; statutory text can displace control test)
FDIC v. Meyer, 510 U.S. 471 (1994) (FTCA waives sovereign immunity for torts by federal employees)
Brownback v. King, 141 S. Ct. 740 (2021) (elements of an FTCA claim are jurisdictional)
Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571 (D.C. Cir. 2003) (placing burden on party suing United States to show waiver of sovereign immunity)