Steven Levin could not spend a small fortune to hire one of the elite members of the Supreme Court bar to file his case in the U.S. Supreme Court. Armed with a rudimentary knowledge of the law and a determination to get justice, he joined the ranks of the successful pro se petitioners when the justices granted review in his case last fall.
On Tuesday, the court heard arguments in Levin v. U.S., which asks the justices whether the federal Gonzalez Act permits Levin to sue the United States for a battery committed by military medical personnel. Under that act, the United States is substituted as the sole defendant for tort claims against military medical personnel, who are granted immunity from suit when performing medical functions.
At the heart of the dispute is whether language in the Gonzalez Act waives the United States’ sovereign immunity for medical battery claims despite an exception to the waiver of sovereign immunity for assault and battery claims in the Federal Tort Claims Act.
Levin, a resident of Guam, had gone to the island’s U.S. Naval Hospital for an evaluation of cataracts in his right eye. He signed a written consent form for surgery but claimed that he orally withdrew that consent twice immediately before the surgery. The surgeon performed the surgery anyway. Levin suffered severe complications from the surgery and has little useful sight in the eye.
Helping Levin to unravel the statutory interpretation puzzle during Tuesday’s arguments before the justices was James Feldman of Washington, a former assistant to the solicitor general, who was appointed by the court as amicus curiae to make the argument on behalf of Levin. Feldman’s legal team included Stephanos Bibas of the University of Pennsylvania Law School Supreme Court Clinic and Irving Gornstein of Georgetown University Law Center Supreme Court Clinic. Assistant to the Solicitor General Pratik Shah argued for the United States.
A U.S. Navy veteran, yachtmaster and writer for stage and screen, Levin, who does not have a telephone, agreed to answer a few questions via email from the Supreme Court Brief about his odyssey to the highest court in the land. He is a 1972 graduate of Stanford University and currently serves as a legal assistant intern in the Guam attorney general’s office after earning certification as a paralegal last year.
Supreme Court Brief: Are you a native of Guam, and if not, when and how did you come to live there?
Levin: I am not a Guam native. I arrived here in ’94 on my sailboat to look for work after cruising about the world.
SCB: Did you represent yourself throughout the court proceedings in your case?
Levin: I had an attorney who filed the original complaint in the district court. He left in disgrace but turned the case over to another attorney who would not put in an appearance, but who advised me for a while as I acted pro se. Soon after that, I retained another attorney, who opposed the motion to dismiss. When that motion succeeded, his representation ceased by prior agreement that he would represent me only at the Guam District Court.
I asked for pro bono counsel to appeal in the Ninth Circuit. At first that was denied. Later it was granted, but I did not see eye to eye with the appointed counsel and was not satisfied with her law firm, so from then on I represented myself. I did the petition to the Supreme Court myself because I could not afford an attorney to do that and I had already done the Ninth Circuit appeal.
SCB: Do you have any background or training in the law?
Levin: I had none until after the appeal to the Ninth Circuit. Then I took some classes at the university here. Most notably a class in legal research, reasoning and writing. Also I did a lot of studying on my own using material accessible through the Internet.
SCB: How did you prepare for the proceedings in the district and circuit courts?
Levin: I used the local law library with access to Westlaw and Lexis in addition to online research and studying of various articles about how to write briefs. Westlaw and Lexis have online tutorials that I studied. I did not do very much for the district court because I had an attorney. When I first appealed to the Ninth Circuit, I carefully read all the cited cases in the dismissal order, all the cited cases in all the cited cases, and studied that order carefully. I thought it was very unreasonable and that I could effectively criticize the reasoning in it. After that, for the petition to the Supreme Court, I did a lot of study and preparation by reading material available on the Internet.
SCB: How difficult was it to prepare the petition for the U.S. Supreme Court?
Levin: Not that difficult. I reworked the material I had for the Ninth Circuit to make it more suitable for a petition, emphasizing the “cert-worthiness” and honing the argument that the Ninth Circuit panel erred. Formatting was something I had to learn about. I hired experienced legal printers to print the petition. They helped with pesky little formatting problems, not with substance.
SCB: How did you go about identifying the issue and writing the petition?
Levin: The issue arose from the government’s motion to dismiss and the response by my attorney. I pinpointed 10 U.S.C. 1089(e) from the response. When I first wrote the issue for the Ninth Circuit, I just wrote that it was the meaning and effect of 1089(e). Later I learned more about how to write the issue.
SCB: Did you receive any advice or help from anyone?
Levin: About writing the various documents involved? Not really. The only thing I remember is that the attorney I was interning for at the Guam AG’s office told me that it was important that the case be of the first instance. So, I added the final sentence to the “ISSUES PRESENTED” that the Supreme Court had never considered the issues.
SCB: Did lawyers contact you asking to handle your Supreme Court case? It is a common occurrence these days for Supreme Court practitioners to compete for cases.
Levin: Yes. About a dozen. In fact, I first learned that cert was granted from their emails on October 3 even though the Court granted cert on September 25.
SCB: After waging this legal battle by yourself for so long, how do you feel about having a court-appointed lawyer?
Levin: I think Mr. Feldman and his team are doing a great job. They have access to researched material that I would not have had. My only concern is that there is a narrow focus on the issue, and not on a couple of sub-issues I raised in the Ninth Circuit. I brought them up in an email letter I wrote to the merits clerk in the Supreme Court. They are 1) that the district court order of dismissal is so unreasonable, erroneous and forced that it is an indication of a predisposition that should disqualify the district court judge; and 2) that discovery was inadequate, so the court should urge that it may be reopened. These sub-issues are extremely important to me because the resolution of the case must come after a fair and full trial or settlement. The sub-issues are necessary for fairness to be assured and for the truth to come out and to be proved.
SCB: How is your eyesight today?
Levin: The un-consented and unsuccessful surgery was on my right eye. Since then I have had a droopy eyelid. That eye has had several corrective surgeries; two full corneal transplants, one refractive incision, two laser treatments and one DSEK (replacement on the inner layer of corneal cells). It has undergone nine years of frequent visits to ophthalmologists, many tests and at least one treatment by injection. Today the eye is virtually useless for all but checking if a car is in the blind spot when I am driving. The vision is blurred and distorted, and there is a large floater. Right now and usually I just keep the right eye closed when doing any sort of looking at anything in particular; reading, watching TV or a movie, using a computer. On the plus side, my other eye has always been my dominant eye.
SCB: This has been a long road for you, almost 10 years. Have there been times when you thought about giving up? What kept you going?
Levin: Never. Desire for justice. Anger at the way the government has behaved in addition to anger at the lies of the surgeon and at the hemming, hawing and “forgetting” of the other medical personnel present at the surgery in question.
Marcia Coyle can be contacted at firstname.lastname@example.org.