Levin v. United States, No. 11-1351; U.S. Supreme Court; opinion by Ginsburg, J.; decided March 4, 2013. On certiorari to the U.S. Court of Appeals for the Ninth Circuit,

The Federal Tort Claims Act (FTCA) waives the government’s sovereign immunity from tort suits, 28 U.S.C. § 1346(b)(1), but excepts from the waiver certain intentional torts, including battery, § 2680(h). The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant.

Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. See 10 U.S.C. § 1089(a). The act also provides that, "[f]or purposes of this section," the intentional-tort exception to the FTCA "shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical … functions." See § 1089(e).

Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment, 28 U.S.C. § 2679(b)(1). Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work.

Petitioner Levin suffered injuries as a result of cataract surgery performed at a U.S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the district court released him and substituted the United States as sole defendant. The government moved to dismiss the battery claim, relying on the FTCA’s intentional-tort exception. Levin countered that the Gonzalez Act, in particular, § 1089(e), renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The district court granted the government’s motion to dismiss. Affirming, the Ninth Circuit concluded that § 1089(e) served only to buttress the immunity from personal liability granted military medical personnel in § 1089(a), and did not negate the FTCA’s intentional-tort exception.

Held: The Gonzalez Act direction in § 1089(e) abrogates the FTCA’s intentional-tort exception and therefore permits Levin’s suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. Pp. 8-15.

(a) To determine whether the government’s immunity is waived for batteries, the court looks to § 1089(e)’s language, "giving the ‘words used’ their ‘ordinary meaning.’" Moskal v. United States, 498 U.S. 103, 108. Levin claims that the operative clause of § 1089(e), which provides that the FTCA’s intentional-tort exception "shall not apply" to medical-malpractice claims, is qualified by the provision’s introductory clause "[f]or purposes of this section," which confines the operative clause to claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. The government, in contrast, argues that § 1089(e)’s introductory clause instructs courts to pretend, "[f]or purposes of" the Gonzalez Act, that § 2680(h) does not secure the government against liability for intentional torts, including battery, even though § 2680(h) does provide that shelter. The choice between the parties’ dueling constructions is not a difficult one. Section 1089(e)’s operative clause states, in no uncertain terms, that the FTCA’s intentional-tort exception, § 2680(h), "shall not apply," and § 1089(e)’s introductory clause confines the abrogation of § 2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act. Had Congress wanted to adopt the government’s counterfactual interpretation, it could have used more precise language, as it did in § 1089(c), a subsection adjacent to § 1089(e). Pp. 8-11.

(b) Under the government’s interpretation of § 1089(e), the Liability Reform Act would displace much of the Gonzalez Act. That reading conflicts with the view the government stated in United States v. Smith, 499 U.S. 160. There, the question was whether a person injured abroad due to a military doctor’s negligence may seek compensation from the doctor in a U.S. court, for the FTCA gave them no recourse against the government on a "claim arising in a foreign country," 28 U.S.C. § 2680(k). In arguing that such persons also lacked recourse to a suit against the doctor, the government contended that the Liability Reform Act made "[t]he remedy against the United States" under the FTCA "exclusive." See § 2679(b)(1). This interpretation, the government argued, would not override the Gonzalez Act, which would continue to serve two important functions: Title 10 U.S.C. § 1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law might govern; and the Gonzalez Act would allow an FTCA suit against the United States if the doctor performed a procedure to which the plaintiff did not consent. Adopting the government’s construction, the court held that § 2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when the FTCA provides no remedy against the United States. 499 U.S. at 166. Under the government’s current reading of § 1089(e), the Liability Reform Act overrides the Gonzalez Act except in the atypical circumstances in which indemnification of the doctor under § 1089(f)(1) remains possible, while under Levin’s reading, the Gonzalez Act does just what the government said it did in Smith. Pp. 11-13.

(c) The government attempts to inject ambiguity into § 1089(e) by claiming that 38 U.S.C. § 7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs, expresses Congress’ intent to abrogate § 2680(h) with the unmistakable clarity the Gonzalez Act lacks. But this court sees nothing dispositively different about the wording of the two provisions, and neither did the government when it argued in the district court that § 1089(e) and § 7316(f) are functionally indistinguishable. Pp. 13-14.

663 F.3d 1059, reversed and remanded.