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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1351
_________________
STEVEN ALAN LEVIN, PETITIONER
v. UNITED
STATES et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[March 4, 2013]
Justice Ginsburg delivered the opinion of the
Court.[
1]*
Petitioner Steven Alan Levin, a veteran,
suffered injuries as a result of cataract surgery performed at the
U. S. Naval Hospital in Guam. He asserts that, just prior to the
operation, concern about equipment in the operating room led him to
withdraw his consent to the surgery. Seeking compensation from the
United States, Levin sued under the Federal Tort Claims Act (FTCA),
28 U. S. C. §§1346(b), 2671–2680, which waives the
Government’s sovereign immunity from tort suits, but excepts from
the waiver certain intentional torts, including battery, §2680(h).
Levin relied on the Gonzalez Act, 10 U. S. C. §1089,
which makes the remedy against the United States under the FTCA
preclusive of any suit against armed forces medical personnel,
§1089(a). In the provision at issue in this case, §1089(e), the
Gonzalez Act declares that, “[f]or purposes of” the Act, 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.”
The Government reads §1089(e) simply to shore up
§1089(a)’s immunization of medical personnel against tort
liability. Levin, in contrast, reads §1089(e) to establish his
right to bring a claim of medical battery against the United States
under the FTCA without encountering the intentional tort exception.
The U. S. District Court for the District of Guam, affirmed by
the Ninth Circuit, dismissed Levin’s battery claim based on the
reading of the Gonzalez Act proffered by the Government. We find
the Government’s reading strained, and Levin’s, far more compatible
with the text and purpose of the federal legislation. We therefore
reverse the Ninth Circuit’s judgment.
I
A
The FTCA, enacted in 1946, “was designed
primarily to remove the sovereign immunity of the United States
from suits in tort.”
Richards v.
United States,
369 U.S.
1, 6 (1962). The Act gives federal district courts exclusive
jurisdiction over claims against the United States for “injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission” of federal employees acting
within the scope of their employment. 28 U. S. C.
§1346(b)(1). Substantively, the FTCA makes the United States liable
“to the same extent as a private individual under like
circumstances,” §2674, under the law of the place where the tort
occurred, §1346(b)(1), subject to enumerated exceptions to the
immunity waiver, §§2680(a)–(n). The exception relevant in this case
is §2680(h), which,
inter alia, preserves the Government’s
immunity from suit on “[a]ny claim arising out of . . .
battery.” We have referred to §2680(h) as the “intentional tort
exception.”
E.g.,
United States v.
Shearer,
473 U.S.
52, 54 (1985).[
2]
Originally, the FTCA afforded tort victims a
remedy against the United States, but did not preclude lawsuits
against individual tortfeasors. See
Henderson v.
Blue-
mink, 511 F.2d 399, 404 (CADC 1974). Judgment against the
United States in an FTCA action would bar a sub- sequent action
against the federal employee whose conduct gave rise to the claim,
28 U. S. C. §2676, but plaintiffs were not obliged to
proceed exclusively against the Government. They could sue as sole
or joint defendants federal employees alleged to have acted
tortiously in the course of performing their official duties.
In time, Congress enacted a series of
agency-specific statutes designed to shield precisely drawn classes
of employees from the threat of personal liability.
United
States v.
Smith,
499
U.S. 160, 170 (1991). One such measure was the Medical
Malpractice Immunity Act, 90Stat. 1985, 10 U. S. C.
§1089, passed in 1976 and com- monly known as the Gonzalez
Act.[
3] That Act, controlling
in this case, makes claims against the United States under the FTCA
the “exclusive” remedy for injuries resulting from malpractice
committed by medical personnel of the armed forces and other
specified agencies. 10 U. S. C. §1089(a).[
4]
A subsection of the Gonzalez Act key to the
issue before us, §1089(e), refers to the FTCA’s intentional tort
exception. It provides: “For purposes of this section, the
provisions of section 2680(h) of title 28 shall not apply to any
cause of action arising out of a negligent or wrongful act or
omission in the performance of medical, dental, or related health
care functions.” Section 1089(e) was patterned on a provision in a
statute, enacted six years earlier, that conferred immunity on
medical personnel of the Public Health Service. See 84Stat. 1870,
42 U. S. C. §233(e) (1976 ed.) (“For purposes of this
section, the provisions of [§2680(h)] shall not apply to assault or
battery arising out of negligence in the performance of medical
. . . functions.”). Targeted immunity statutes enacted
around the same time as the Gonzalez Act similarly shielded medical
personnel employed by specific agencies. See
supra, at 3,
n. 2. Each such measure contained a provision resembling
§1089(e). See 22 U. S. C. §2702(e) (“For purposes of this
section, the provisions of [§2680(h)], shall not apply to any tort
enumerated therein arising out of negligence in the furnishing of
medical care or related services.”); 38 U. S. C. §7316(f)
(“The exception provided in [§2680(h)] shall not apply to any claim
arising out of a negligent or wrongful act or omission of any
person described in subsection (a) in furnishing medical care or
treatment . . . while in the exercise of such person’s
duties in or for the Administration.”); 51 U. S. C.
§20137(e) (“For purposes of this section, the provisions of
[§2680(h)] shall not apply to any cause of action arising out of a
negligent or wrong- ful act or omission in the performance of
medical . . . functions.”).
In 1988, departing from the above-described
agency-specific approach, Congress enacted comprehensive
legislation titled the Federal Employees Liability Reform and Tort
Compensation Act (Liability Reform Act), 102Stat. 4563, and often
called the Westfall Act. This embracive measure makes the remedy
against the United States under the FTCA exclusive for torts
committed by federal employees acting within the scope of their
employment, 28 U. S. C. §2679(b)(1). Shielding all
federal employees from personal liability without regard to agency
affiliation or line of work, the personal immunity provision of the
Liability Reform Act tracks the text of §1089(a). The comprehensive
enactment, however, did not repeal the Gonzalez Act,
Smith,
499 U. S., at 172, or, presumably, any of the other laws
covering medical personnel employed at particular agencies. Unlike
the Gonzalez Act and kindred statutes, the Liability Reform Act
does not reference, as §1089(e) does, the FTCA’s intentional tort
exception, 28 U. S. C. §2680(h).
B
The petitioner, Steven Alan Levin, a veteran,
was diagnosed with a cataract in his right eye. He sought treatment
at the United States Naval Hospital in Guam and was evaluated
by Lieutenant Commander Frank Bishop, M. D., an
ophthalmologist serving in the U. S. Navy. Dr. Bishop
recommended that Levin undergo “phacoemulsification with
intraocular lens placement,” a surgical procedure involving
extraction of the cataract and insertion of an artificial
replacement lens. Levin signed forms consenting to the operation,
which took place on March 12, 2003. Shortly before the surgery
began, Levin alleges, he orally withdrew his consent twice, but Dr.
Bishop con- ducted the operation nevertheless. Due to complications
oc- curring while the surgery was underway, Levin developed corneal
edema, a condition that left him with diminished eyesight,
discomfort, problems with glare and depth-of-field vision, and in
need of ongoing medical treatment.
Levin sought compensation for the untoward
results of the surgery. After exhausting administrative remedies,
he commenced a civil action in the U. S. District Court for
the District of Guam. Naming the United States and Dr. Bishop as
defendants, Levin asserted claims of battery, based on his alleged
withdrawal of consent to the surgery, and negligence, based on
alleged flaws in Dr. Bishop’s performance of the operation.
Accepting the Government’s representation that Dr. Bishop was
acting within the scope of his employment while performing the
surgery, the District Court granted the Government’s motion to
release Dr. Bishop and substitute the United States as sole
defendant. When Levin failed to produce expert testimony in support
of his negligence allegations, the court granted the Government’s
motion for summary judgment on that claim.
Next, the Government moved to dismiss the
battery claim. The District Court no longer had jurisdiction over
Levin’s case, the Government argued, because the FTCA’s intentional
tort exception, §2680(h), disallows suits against the United States
for battery. Levin countered that the Gonzalez Act, in particular,
§1089(e), renders the intentional tort exception inapplicable when
a plaintiff alleges medical battery by an armed forces physician.
The District Court rejected Levin’s plea and granted the
Government’s motion to dismiss for lack of subject-matter
jurisdiction. App. to Pet. for Cert. 14a–41a.
On appeal to the Ninth Circuit, Levin did not
question the adverse judgment on his negligent performance claim,
but he renewed the argument that the battery claim, based on his
alleged withdrawal of consent, survived. That was so, he
maintained, because §1089(e) negated §2680(h), the FTCA’s
intentional tort exception. The Court of Appeals thought Levin’s
construction of the Gonzalez Act “plausible,” but “not the best
reading of the statute.” 663 F.3d 1059, 1062 (2011). As perceived
by the Ninth Circuit, §1089(e) had a limited office, serving only
to buttress the immunity from personal liability granted military
medical personnel in §1089(a). “[C]lever tort plaintiffs,” the
court conjectured, might argue in future cases that because the
FTCA does not authorize battery claims against the United States,
such claims may be asserted against military doctors
notwithstanding §1089(a).
Ibid. Section 1089(e) foreclosed
that argument, but the provision did nothing more, the court
concluded. Satisfied that §1089(e) served the dominant purpose of
the Gonzalez Act—to immunize covered medical personnel against
malpractice liability—and did not unequivocally waive the
United States’ sovereign immunity from battery claims, the
Ninth Circuit affirmed the District Court’s disposition.[
5]
We granted certiorari, 567 U. S. ___
(2012), recognizing that Courts of Appeals have divided on the
question whether the controlling provision of the Gonzalez Act,
§1089(e), authorizes battery claims against the United States when
military doctors operate without the patient’s consent. Compare 663
F. 3d, at 1063 (case below), with
Keir v.
United
States, 853 F.2d 398, 409–410 (CA6 1988) (§1089(e) waives
sovereign immunity for battery suits alleging malpractice by
military medical personnel); and
Lojuk v.
Quandt, 706
F.2d 1456, 1463 (CA7 1983) (same). See also
Franklin v.
United States, 992 F.2d 1492, 1501 (CA10 1993) ( 38
U. S. C. §7316(f), concerning Department of Veterans
Affairs’ medical personnel, includes an “es- sentially identical
counterpart” to §1089(e), which sim- ilarly “nullif[ies] §2680(h)
and thereby expand[s] the injured party’s remedy against the
government under the FTCA”).[
6]
II
A
We note at the outset that medical malpractice
claims may be based on negligence, in which case the FTCA’s waiver
of the Government’s sovereign immunity is not in doubt. See 28
U. S. C. §1346(b)(1);
supra, at 2. Or they may be
based on alleged lack of consent, therefore qualifying as
batteries. Whether the Government’s immunity is waived for such
claims depends on the meaning of 10 U. S. C. §1089(e).
See
supra, at 4.
In determining the meaning of a statute, “we
look first to its language, giving the words used their ordinary
meaning.”
Moskal v.
United States,
498 U.S.
103, 108 (1990) (citation and internal quotation marks
omitted). The provision of the Gonzalez Act at issue, §1089(e), has
two components: an introductory clause and an operative clause. The
introductory clause prefaces §1089(e) with “[f]or purposes of this
section.” The operative clause instructs that 28 U. S. C.
§2680(h), the FTCA’s intentional tort exception, “shall not apply
to any cause of action arising out of . . . negligent or
wrongful” conduct taken “in the performance of medical, dental or
related health care functions.” §1089(e).
We set out below the parties’ dueling
constructions of §1089(e). Levin reads §1089(e) to negate §2680(h)
for battery claims involving medical personnel of the armed forces
and other specified agencies. He trains first on the operative
clause of §1089(e), which contains this direc- tive: The
intentional tort exception to the FTCA “shall not apply” to claims
alleging medical malpractice. But, he points out, if left
unqualified, the operative clause would expose the United States to
liability for medical malpractice committed by federal employees
across all agencies. The introductory clause, Levin maintains,
supplies the qualification: It confines the operative clause to
claims covered by “this section,”
i.e., claims alleging
malpractice by personnel in the armed forces and the other agencies
specified in the Gonzalez Act. Because Levin’s claim concerning Dr.
Bishop’s alleged battery fits that category, Levin concludes, he
may sue to recover from the United States.
The Government, in contrast, reads §1089(e)’s
introductory clause as instructing 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. Congress
included this counterfactual instruction in the Gonzalez Act, the
Government successfully argued in the Ninth Circuit, “to guard
against the negative inference that, if no remedy against the
United States were available for a medical battery claim, a remedy
against an individual defendant must exist.” Brief for United
States 8. Warding off this mistaken inference, the Government
asserts, §1089(e) eliminates any doubt that the military medical
personnel covered by §1089(a) are personally immune from
malpractice liability. Ensuring that immunity, the Government
reminds us, was the very purpose of the Gonzalez Act.
The choice between these alternative readings of
§1089(e) is not difficult to make. Section §1089(e)’s operative
clause states, in no uncertain terms, that the intentional tort
exception to the FTCA, §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.[
7]
The Government invites us to read the phrase
“section 2680(h) . . . shall not apply,” to convey
“§2680(h) does apply,” a reading most unnatural. Had Congress
wanted to guard against any inference that individual employees may
be liable, despite §1089(a)’s statement that the remedy against the
United States is exclusive, see
supra, at 4, n. 3, Congress
might have stated, “subsection (a) applies even when §2680(h)
precludes recovery against the United States under the FTCA.” Or,
Congress might have provided that §2680(h) shall be “deemed” or
“considered” inapplicable, a formulation commonly employed to
direct courts to make counterfactual assumptions. See,
e.g.,
7 U. S. C. §7283(b) (“For purposes of this section, raw
cane sugar, refined beet sugar, and in-process sugar eligible for a
loan . . . shall not be considered an agricultural
commodity.”); 15 U. S. C. §78
o–11(e)(3)(B) (2006
ed., Supp. V) (“For purposes of this subsection, the Federal
National Mortgage Association, the Federal Home Loan Mortgage
Corporation, and the Federal home loan banks shall not be
considered an agency of the United States.”); 42 U. S. C.
§416(b) (“For purposes of subparagraph (C) of section 402(b)(1) of
this title, a divorced wife shall be deemed not to be married
throughout the month in which she becomes divorced.”).
We note, furthermore, that in 10
U. S. C. §1089(c), a subsection of the Gonzalez Act
adjacent to §1089(e), Congress used the counterfactual formulation
absent in §1089(e). Section 1089(c) provides that certain actions
brought against military employees acting within the scope of their
employment “shall be . . . deemed a tort action brought
against the United States under the provisions of title 28.” See
Barnhart v.
Sigmon Coal Co.,
534
U.S. 438, 452 (2002) (“[W]hen Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.” (internal quotation marks omitted)).
B
Were we to accept the Government’s
interpretation of §1089(e), the Liability Reform Act would displace
much of the Gonzalez Act. To explain why this is so, we describe
the situation before the Court in
United States v.
Smith,
499 U.S.
160.
Smith presented the question whether persons
injured abroad due to a military doctor’s negligence may seek
compensation in a U. S. court from the doctor who caused the
injury. Because the FTCA excludes from the Government’s waiver of
immunity “[a]ny claim arising in a foreign country,” 28
U. S. C. §2680(k), the plaintiffs in
Smith had no
remedy against the United States. They also lacked recourse to a
suit in this country against the doctor, the Government urged, for
the Liability Reform Act made “[t]he remedy against the United
States” under the FTCA “exclusive of any other civil action.”
§2679(b)(1). Were that the case, the plaintiffs responded, the
Liability Reform Act would effectively repeal the Gonzalez Act. See
Brief for Respondents in
Smith, O. T. 1990, No. 89–1646,
pp. 33–46. In particular, they observed, 10 U. S. C.
§1089(f)(1) authorizes the head of an agency to indemnify military
doctors “assigned to a foreign country” whose negligent conduct
injures a patient. But the indemnification provision would have no
work to do, the plaintiffs argued, if the Liability Reform Act
foreclosed suit against the doctor.
Not so, the Government responded. The Gonzalez
Act would continue to serve two important functions. First,
§1089(f)(1) would authorize indemnification of individual military
doctors sued abroad where foreign law, rather than the FTCA, might
govern. Brief for United States in
Smith 34 (citing
Powers v.
Schultz, 821 F.2d 295, 297–298 (CA5 1987)).
Second, the Gonzalez Act would allow an FTCA suit against the
United States if the doctor’s malpractice ranked as “intentional,”
i.e., if he performed a procedure to which the plaintiff did
not consent. See Brief for United States in
Smith 32–34;
Reply Brief in
Smith 12 (“[T]he provision of the Gonzalez
Act waiving sovereign immunity as to medical malpractice claims
sounding in intentional tort, 10 U. S. C. §1089(e), will
enable plaintiffs to pursue those claims against the United
States.”). Thus, the Government told this Court, “in view of the
continued need for the provisions of the Gonzalez Act even after
the enactment of the [Liability] Reform Act, leaving that statute
on the books was an entirely sensible drafting decision.”
Id., at 13.
Adopting the Government’s construction of the
Liability Reform Act, we held in
Smith that §2679(b)(1)
grants all federal employees, including medical personnel, immunity
for acts within the scope of their employment, even when an FTCA
exception (such as §2680(k)) left the plaintiff without a remedy
against the United States. 499 U. S., at 166. Our decision in
Smith was thus informed by the Government’s position that
the Gonzalez Act would remain “ ‘an operative part of the
integrated statutory scheme.’ ” Reply Brief in
Smith 12
(quoting
United States v.
Fausto,
484 U.S.
439, 453 (1988)).
The Government now disavows the reading of
§1089(e) it advanced in
Smith. See Brief for United States
24, n. 8. Under its current reading, the Liability Reform Act
does indeed override the Gonzalez Act save in two slim
applications: If a military doctor employed by the United States is
sued in a foreign court, or is detailed to a non-federal
institution, indemnification of the doctor under §1089(f)(1) would
remain possible. See
id., at 26. Under Levin’s reading of
§1089(e), the Gonzalez Act does just what the Government said that
legislation did in briefing
Smith: It renders §2680(h)
inapplicable to medical batteries committed by military personnel
within the scope of their employment, thereby permitting civil
actions against the United States by persons situated as Levin
is.
C
Endeavoring to inject ambiguity into §1089(e)
notwithstanding its direction that “section 2680(h) . . .
shall not apply,” the Government refers to 38 U. S. C.
§7316, a parallel statute that confers immunity on medical
personnel of the Department of Veterans Affairs (VA). As enacted in
1965, §7316’s statutory predecessor had no provision akin to
§1089(e). See 79Stat. 1156, 38 U. S. C. §4116 (1970 ed.).
Congress added such a provision in 1988, but it was not a carbon
copy of §1089(e). In particular, the new provision did not include
the words that preface §1089(e). It reads: “The exception provided
in section 2680(h) of title 28 shall not apply to any claim arising
out of a negligent or wrongful act or omission of any person
described in subsection (a) of this section in furnishing medical
care or treatment.” 38 U. S. C. §7316(f). This phrasing,
which refers to “any person described in [§7316(a)]”—
i.e.,
any “health care employee of the” VA—does indeed express Congress’
intent to abrogate §2680(h), the Government acknowledges. But
§7316(f) does so, the Government adds, with the unmistakable
clarity the Gonzalez Act lacks.
We see nothing dispositively different about the
word- ing of the two provisions.[
8] Neither did the Government earlier on. In the District
Court, the Government argued that §1089(e) and §7316(f) are
functionally indistinguishable. See Record 366 (Ҥ1089(e) has
language that is identical to . . . §7316(f)”);
id., at 435 (“originally [Levin] talked about the doctor
being under the VA; in fact, the doctor is a Navy doctor, but the
statute is exactly the same”);
id., at 447–448 (Dr. Bishop
was “[n]ot an employee of the VA[,] . . . [but] it’s an
academic argument because the exact same language [appears in]
§1089(e)”). We agree with the Government’s earlier view, and not
with the freshly minted revision.
* * *
For the reasons stated, we hold that the
Gonzalez Act direction in 10 U. S. C. §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. Accordingly, we
reverse the judgment of the Court of Appeals and remand the case
for further proceedings consistent with this opinion.
It is so ordered.
