United States v. Smith
499 U.S. 160 (1991)

Annotate this Case

U.S. Supreme Court

United States v. Smith, 499 U.S. 160 (1991)

United States v. Smith

No. 89-1646

Argued Nov. 7, 1990

Decided March 20, 1991

499 U.S. 160

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Respondents Smith filed suit in the District Court against one Dr. Marshall, alleging that he had negligently injured respondent Dominique Smith during his birth at a United States Army hospital in Italy. The court granted the Government's motion to substitute itself for Marshall pursuant to the Gonzalez Act, which provides that, in a suit against military medical personnel for employment-related torts, the Government is to be substituted as the defendant and the suit is to proceed under the Federal Tort Claims Act (FTCA). The court then dismissed the suit on the ground that the FTCA excludes recovery for injuries sustained abroad. The Court of Appeals reversed, holding that neither the Gonzalez Act nor the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Act) required substitution of the Government or otherwise immunized Marshall. It ruled that § 5 of the Act -- which, with two exceptions not here relevant, confers absolute immunity on Government employees by making an FTCA action against the Government the exclusive remedy for their employment-related torts -- applies only when the FTCA provides a remedy.

Held: The Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government. Pp. 499 U. S. 165-175

(a) The Act's language confirms that § 5 makes the FTCA the exclusive mode of recovery. Congress recognized that requiring substitution of the Government would sometimes foreclose a tort plaintiff's recovery altogether when it provided in § 6 of the Act that suits proceeding under the FTCA are subject to the "limitations and exceptions" applicable to FTCA actions. Moreover, in light of § 5's two express exceptions preserving employee liability, a third exception preserving liability when the FTCA bars suit cannot be implied, absent a contrary legislative intent. Furthermore, the enactment of § 9 of the Act -- which provides for the substitution of the Tennessee Valley Authority as defendant in employment-related tort suits against its employees -- supports no inference on the scope of § 5 immunity when the FTCA precludes suit against the United States. Pp. 499 U. S. 165-169

(b) Respondents' several arguments to support the decision below are rejected. Construing the Act to preclude Marshall's tort liability does

Page 499 U. S. 161

not result in an implied repeal of the Gonzalez Act. The Gonzalez Act functions solely to protect military medical personnel from malpractice liability, and does not create rights in favor of malpractice plaintiffs, whose rights arise instead under state or foreign law. Since respondents' rights as malpractice plaintiffs were not created by Congress, the rule disfavoring implied repeals is not implicated when Congress limits those rights. Similarly, respondents' suggestion that the Act was meant to apply solely to those Government employees not already protected from tort liability by a preexisting federal immunity statute is inconsistent with the Act's purpose. The Act's plain language makes no distinction between employees who are covered under pre-Act immunity statutes and those who are not. Congress clearly was aware of the pre-Act immunity statutes. Congress' enactment of the two express limitations of immunity under § 5 of the Act indicates that, if it intended to limit the Act's protection to employees not covered under the pre-Act immunity statutes, it would have said this expressly. Finally, since nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians, respondents' malpractice claim does not involve a violation of the Gonzalez Act. Thus, it does not fall within the Act's exception for suits brought for a violation of a United States statute under which action against an employee is otherwise authorized. Pp. 499 U. S. 169-175.

885 F.2d 650 (CA9 1989), reversed and remanded.

MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 499 U. S. 175.

Justice MARSHALL delivered the opinion of the Court.

The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Liability Reform Act or Act) limits the relief available to persons injured by Government employees acting within the scope of their employment. For persons so injured, the Act provides that "[t]he remedy against the

Page 499 U. S. 162

United States" under the Federal Tort Claims Act (FTCA) "is exclusive of any other civil action or proceeding for money damages." 28 U.S.C. § 2679(b)(1). Subject to certain exceptions, the FTCA permits a person injured by a Government employee acting within the scope of his or her employment to seek tort damages against the Government. One exception bars such recovery for injuries sustained outside the country. See 28 U.S.C. § 2680(k). This case presents the question whether a person injured abroad by a military physician, and whom the FTCA foreign-country exception therefore precludes from suing the Government, may nonetheless seek damages from the particular Government employee who caused the injury. We hold that the Liability Reform Act bars this alternative mode of recovery.

I

In 1982, while working on the medical staff of the United States Army hospital in Vicenza, Italy, Dr. William Marshall served as attending physician to Hildegard Smith during the delivery of her son Dominique. At this time, Ms. Smith's husband, Marcus Smith, was an Army Sergeant stationed in Italy. According to the Smiths, Dominique was born with massive brain damage. In 1987, the Smiths, who are respondents in this Court, sued Dr. Marshall in the United States District Court for the Central District of California, basing jurisdiction on diversity of citizenship. The Smiths alleged that Dr. Marshall's negligence during the delivery caused Dominique's injuries. [Footnote 1]

The Government intervened and sought to have itself substituted for Dr. Marshall as the defendant pursuant to the Gonzalez Act, 10 U.S.C. § 1089. The Gonzalez Act provides that, in suits against military medical personnel for torts committed within the scope of their employment, the Government is to be substituted as the defendant and the suit is to

Page 499 U. S. 163

proceed against the Government under the FTCA. See §§ 1089(a), (b). The Government also argued that, because the action arose overseas, the FTCA exception excluding recovery for injuries sustained abroad, 28 U.S.C. § 2680(k), precluded Government liability. Consequently, the Government concluded, the action should be dismissed. The District Court granted the Government's motion for substitution and dismissed the action. See App. to Pet. for Cert. 17a-18a. [Footnote 2]

In 1988, while respondents' appeal was pending, Congress enacted the Liability Reform Act as an amendment to the FTCA. Congress took this action in response to our ruling in Westfall v. Erwin,484 U. S. 292 (1988), which held that the judicially created doctrine of official immunity does not provide absolute immunity to Government employees for torts committed in the scope of their employment. In Westfall, we ruled that such official immunity would have to be determined on a case-by-case basis, according to whether "the contribution to effective government in particular contexts" from granting immunity "outweighs the potential harm to individual citizens." 484 U.S. at 484 U. S. 299. The Liability Reform Act establishes the absolute immunity for Government employees that the Court declined to recognize under the common law in Westfall. The Act confers such immunity by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment. [Footnote 3]

Page 499 U. S. 164

On appeal in the present case, the Government relied on this new statute to support the District Court's dismissal of respondents' action. [Footnote 4] The Government argued that the Liability Reform Act essentially had the same effect as that which the District Court had found to result from the Gonzalez Act. Because Dr. Marshall's alleged malpractice occurred in the scope of his employment, the Government argued, respondents' action should proceed against it as an FTCA action. [Footnote 5] The Government further contended that, because of the FTCA exception under § 2680(k) barring recovery for injuries occurring overseas, the District Court's ruling dismissing the suit should be affirmed.

The Ninth Circuit reversed, holding that neither the Gonzalez Act nor the Liability Reform Act required substitution of the Government as the defendant in this suit or otherwise immunized Dr. Marshall from liability. See 885 F.2d 650 (1989). [Footnote 6] With respect to the Liability Reform Act, the

Page 499 U. S. 165

Ninth Circuit reasoned that, although the Act renders a suit against the Government under the FTCA the exclusive remedy for employment-related torts committed by Government employees, the Act applies only when the FTCA in fact provides a remedy. Because § 2680(k) of the FTCA precludes any remedy against the Government in cases arising from injuries incurred abroad, the Ninth Circuit concluded that respondents' tort claim against Dr. Marshall was not barred by the Liability Reform Act. Id. at 654-655.

We granted certiorari, 496 U.S. 924 (1990), to resolve a conflict among the Circuits over whether the Liability Reform Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government. [Footnote 7] We conclude the Act does confer such immunity, and therefore reverse.

II

Section 5 of the Liability Reform Act states that "[t]he remedy" against the Government under the FTCA "is exclusive

Page 499 U. S. 166

of any other civil action or proceeding for money damages . . . against the employee," and then reemphasizes that "[a]ny other civil action or proceeding for money damages . . . against the employee . . . is precluded." 28 U.S.C. § 2679(b)(1). The central question in this case is whether, by designating the FTCA as the "exclusive remedy," § 5 precludes an alternative mode of recovery against a Government employee in cases where the FTCA itself does not provide a means of recovery.

Two provisions in the Liability Reform Act confirm that § 5 makes the FTCA the exclusive mode of recovery for the tort of a Government employee even when the FTCA itself precludes Government liability. The first is § 6 of the Act. As noted, see n. 5, supra, § 6 directs the Attorney General in appropriate tort cases to certify that a Government employee named as defendant was acting within the scope of his employment when he committed the alleged tort. Section 6 also provides that the suit

"shall proceed in the same manner as any action against the United States filed pursuant to [the FTCA] and shall be subject to the limitations and exceptions applicable to those actions."

28 U.S.C. § 2679(d)(4) (emphasis added). One of these "exceptions" -- expressly designated as such under § 2680 -- is the provision barring Government liability for torts "arising in a foreign country." § 2680(k). The "limitations and exceptions" language in § 6 of the Liability Reform Act persuades us that Congress recognized that the required substitution of the United States as the defendant in tort suits filed against Government employees would sometimes foreclose a tort plaintiff's recovery altogether.

The second basis of our interpretation arises from the express preservations of employee liability in § 5. Section 5 declares that the FTCA is not the exclusive remedy for torts committed by Government employees in the scope of their employment when an injured plaintiff brings: (1) a Bivens action, [Footnote 8]

Page 499 U. S. 167

seeking damages for a constitutional violation by a Government employee; or (2) an action under a federal statute that authorizes recovery against a Government employee. See § 2679(b)(2). Congress' express creation of these two exceptions convinces us that the Ninth Circuit erred in inferring a third exception that would preserve tort liability for Government employees when a suit is barred under the FTCA.

"Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent."

Andrus v. Glover Construction Co.,446 U. S. 608, 446 U. S. 616-617 (1980). [Footnote 9]

Page 499 U. S. 168

The Ninth Circuit based its contrary construction of the Liability Reform Act on one of the Act's specialized provisions. Section 9 of the Act provides that the Tennessee Valley Authority (TVA) shall be substituted as defendant in any suit against a TVA employee arising from "act[ions] within the scope of his office or employment," 16 U.S.C. § 831c-2(b)(1), and that an action against the TVA is "ex[c]lusive of any other civil action or proceeding," 16 U.S.C. § 831c-2(a)(1). Under the TVA exception to the FTCA, 28 U.S.C. § 2680(1), the Government may not be held liable for any claim arising from the TVA's activities. The Ninth Circuit inferred from the enactment of § 9 that Congress must have expected that § 5 would not shield TVA employees from liability where suit against the United States was precluded by § 2680(1). See 885 F.2d at 655. And because only TVA employees were singled out for a special grant of immunity, the court concluded that all other Government employees must remain subject to liability where the FTCA precludes suit against the United States. See ibid.

The Ninth Circuit's analysis rests on a misunderstanding of the purpose and effect of § 9. By its terms, § 9 does not invest TVA employees with more immunity than § 5 affords other Government employees. Rather, § 9 provides merely that a suit against the TVA, 16 U.S.C. § 831c-2(a)(1), rather than one against the United States, 28 U.S.C. § 2679(b)(1), shall be the exclusive remedy for the employment-related torts of TVA employees. This adjustment of the Liability Reform Act's immunity scheme is perfectly sensible, for, although the United States may not be held liable for the TVA's activities, the TVA itself "[m]ay sue and be sued in its corporate name." 16 U.S.C. § 831c(b). Courts have read this "sue or be sued" clause as making the TVA liable to suit

Page 499 U. S. 169

in tort, subject to certain exceptions. See, e.g., Peoples Nat. Bank of Huntsville, Ala. v. Meredith, 812 F.2d 682, 684-685 (CA11 1987); Queen v. Tennessee Valley Authority, 689 F.2d 80, 85 (CA6 1982), cert. denied, 460 U.S. 1082 (1983). In our view, the most plausible explanation for § 9 is that, in view of lower court cases establishing the TVA's own tort liability independent of the FTCA, Congress decided to clarify that the TVA should be substituted in suits brought against TVA employees.

Seen in this light, the enactment of § 9 supports no inference either way on the scope of § 5 immunity when suit against the United States is precluded under the FTCA. Both the plain language and legislative history of § 9 indicate that the provision was intended to give TVA employees the same degree of immunity as § 5 gives other Government employees. Compare 28 U.S.C. § 2679(b)(1), with 16 U.S.C. § 831c-2(a)(1). See also 134 Cong.Rec. S16375 (Oct. 14, 1988) (remarks of Sen. Heflin). But because the scope of immunity conferred to employees is the same, § 9 has no bearing upon whether Congress viewed § 5 as protecting Government employees from liability when suit against the United States is precluded under the FTCA. [Footnote 10]

III

A

In support of the decision below, respondents advance reasoning not relied upon by the Ninth Circuit. They invoke the well established principle of statutory interpretation that implied repeals should be avoided. See, e.g., Randall v. Loftsgaarden,

Page 499 U. S. 170

478 U. S. 647, 478 U. S. 661 (1986) ("repeals by implication are not favored'" (citations omitted)). Respondents contend that the Government's construction of the Liability Reform Act precluding tort liability for Dr. Marshall results in an implied repeal of the Gonzalez Act, 10 U.S.C. § 1089, which regulates suits against military medical personnel. We disagree.

The Gonzalez Act is one of a series of immunity statutes enacted prior to the Liability Reform Act that were designed to protect certain classes of Government employees from the threat of personal liability. [Footnote 11] For torts committed by military medical personnel within the scope of their employment, the Gonzalez Act provides that a suit against the Government under the FTCA is the exclusive remedy. 10 U.S.C. § 1089(a). [Footnote 12]

Page 499 U. S. 171

Two Courts of Appeals, including the Ninth Circuit in the decision below, have held that the Gonzalez Act's grant of absolute immunity from suit protects only military medical personnel who commit torts within the United States, and not those committing torts abroad. See 885 F.2d at 652-654; Newman v. Soballe, 871 F.2d 969 (CA11 1989). In reaching this conclusion, these courts relied largely on § 1089(f) of Title 10, which permits agency heads to indemnify or insure foreign-based military medical personnel against liability for torts committed abroad while in the scope of their employment. [Footnote 13] The Ninth and Eleventh Circuits construe § 1089(f) to limit the protection available to foreign-based military medical personnel to indemnification or insurance, instead of the immunity that is otherwise available to them when stationed within the United States. [Footnote 14] Under this interpretation, the Gonzalez Act would not preclude respondents from suing Dr. Marshall directly in a United States court. Respondents contend that extending the Liability Reform Act to foreign-based military medical personnel therefore would effect an implied repeal of their "Gonzalez Act remedy." See Brief for Respondents 8, 33, 46.

Page 499 U. S. 172

We reject the last step in respondent's argument. For purposes of this case, we need not question the lower court's determination that the Gonzalez Act would not immunize Dr. Marshall from a malpractice action brought under state or foreign law. Even if the lower court properly interpreted the Gonzalez Act, it does not follow, however, that application of the Liability Reform Act to an action founded on state or foreign law effects a "repeal" of the Gonzalez Act. The Gonzalez Act functions solely to protect military medical personnel from malpractice liability; it does not create rights in favor of malpractice plaintiffs. What respondents describe as their "Gonzalez Act remedy" is in fact a state- or foreign-law remedy that would not be foreclosed by Gonzalez Act immunity. Consequently, the rule disfavoring implied repeals simply is not implicated by the facts of this case, because the Liability Reform Act does not repeal anything enacted by the Gonzalez Act. The Liability Reform Act adds to what Congress created in the Gonzalez Act, namely protection from liability for military doctors. Respondents' rights, on the other hand, arise solely out of state or foreign law. Because Congress did not create respondents' rights, no implied repeal problem arises when Congress limits those rights. [Footnote 15]

B

Respondents next raise a second and slightly different argument involving the Gonzalez Act. They contend that the Liability Reform Act was meant to apply solely to those Government employees not already protected from tort liability in some fashion by a preexisting federal immunity

Page 499 U. S. 173

statute. Under respondents' construction of the Act, military medical personnel and other Government employees who were already protected by other statutes, seen 11, supra, cannot now benefit from the more generous immunity available under the Liability Reform Act. In our view, such a construction is inconsistent with Congress' purpose in enacting the Liability Reform Act.

The Liability Reform Act's plain language makes no distinction between employees who are covered under pre-Act immunity statutes and those who are not. Section 5 states that, with respect to a tort committed by "any employee of the Government" within the scope of employment, the FTCA provides the exclusive remedy. See 28 U.S.C. § 2679(b)(1) (emphasis added). No language in § 5 or elsewhere in the statute purports to restrict the phrases "any employee of the Government," as respondents urge, to reach only employees not protected from liability by another statute. When Congress wanted to limit the scope of immunity available under the Liability Reform Act, it did so expressly, as it did in preserving employee liability for Bivens actions and for actions brought under a federal statute authorizing recovery against the individual employee. § 2679(b)(2); see also supra at 6. In drafting the Liability Reform Act, Congress clearly was aware of the pre-Act immunity statutes. See H.R.Rep. 100-700, p. 4 (1988) (citing these statutes, including the Gonzalez Act). We must conclude that, if Congress had intended to limit the protection under the Act to employees not covered under the pre-Act statutes, it would have said as much. [Footnote 16]

C

Finally, respondents argue that their claim falls within one of the two express exceptions under the Liability Reform

Page 499 U. S. 174

Act -- the exception permitting suits

"brought for a violation of a statute of the United States under which such action against an individual [employee] is otherwise authorized."

§ 2679(b)(2)(B). Respondents assert that they have satisfied both conditions set forth in this exception. They contend that (1) their claim against Dr. Marshall is "authorized" by the Gonzalez Act and that (2) because the Gonzalez Act permits suits against military doctors for negligence in certain instances, such claims of negligence constitute claims of a Gonzalez Act "violation." We need not decide whether a tort claim brought under state or foreign law could be deemed authorized by the Gonzalez Act, for we find that respondents' second argument -- that a claim for malpractice involves "a violation of" the Gonzalez Act -- is without merit. Nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or foreign law does not "violate" the Gonzalez Act.

The dissent disagrees. According to the dissent, unless § 2679(b)(2)(B) "was intended to preserve the Gonzalez Act remedy, it was essentially without purpose." Post at 183. However, the dissent never attempts to square this assertion with the plain language of § 2679(b)(2)(B), which permits only those suits against Government employees

"brought for a violation of a statute of the United States under which such action against an [employee] is otherwise authorized."

(Emphasis added.) At no point does the dissent indicate how a military physician's malpractice under state or foreign law could be deemed a "violation" of the Gonzalez Act. Nor can the dissent avoid this obstacle merely by invoking the canon of statutory construction that every provision of a law should be given meaning. See post at 183, and n. 8. It is true that the legislative history fails to disclose (and neither we nor the dissent has attempted to discover) what cause(s) of action Congress sought to preserve when it enacted § 2679(b)(2)(B), but a malpractice suit alleging a "violation" of the Gonzalez

Page 499 U. S. 175

Act cannot have been one of them. The Gonzalez Act simply does not impose any duties of care upon military physicians that could be violated.

The dissent resists this conclusion because it is impressed by

"Congress' general intent, expressed throughout the hearings and in the House Report, that [the Liability Reform Act] not curtail any preexisting remedies of tort victims."

Post at 183. The truth is, however, that the legislative history reveals considerably less solicitude for tort plaintiffs' rights than the dissent suggests. As we have already noted, see n. 9, supra, the House Report expressly warned that, under the Liability Reform Act, "any claim against the government that is precluded by [FTCA] exceptions" -- which obviously would include claims barred by the exception for causes of action arising abroad -- "also is precluded against an employee." H.R.Rep. 100-700, at 6, U.S.Code Cong. & Admin.News 1988, p. 5950 (emphasis added). This congressional intent was clearly implemented in § 5 of the Act, and we are obliged to give it effect.

IV

For the reasons set forth above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion

So ordered.

[Footnote 1]

Respondents brought their claim under California law, Italian law, and "general American principles of law." See Complaint

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