NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the
Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the
preliminary print goes to press.
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.
