Levin v. United States

• Decision Date: 04 March 2013
• Docket Number: No. 11–1351.,11–1351.
• Citation: 185 L.Ed.2d 343,568 U.S. 503,133 S.Ct. 1224
• Parties: Steven Alan LEVIN, Petitioner v. UNITED STATES et al.
• Court: U.S. Supreme Court

568 U.S. 503

133 S.Ct. 1224

185 L.Ed.2d 343

Steven Alan LEVIN, Petitioner

v.UNITED STATES et al.

No. 11–1351.

Supreme Court of the United States

Argued Jan. 15, 2013.

Decided March 4, 2013.

James A. Feldman, appointed by this Court, for Petitioner.

Pratik A. Shah, for Respondents.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Principal Deputy Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Pratik A. Shah, Assistant to the Solicitor General, Mark B. Stern, Daniel Tenny, Attorneys, Department of Justice, Washington, DC, for Respondents.

Justice GINSBURG delivered the opinion of the Court.^*

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, 82 S.Ct. 585, 7 L.Ed.2d 492 (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, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985).¹

Originally, the FTCA afforded tort victims a remedy against the United States, but did not preclude lawsuits against individual tortfeasors. See Henderson v. Bluemink, 511 F.2d 399, 404 (C.A.D.C.1974). Judgment against the United States in an FTCA action would bar a subsequent 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, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). One such measure was the Medical Malpractice Immunity Act, 90 Stat.1985, 10 U.S.C. § 1089, passed in 1976 and commonly known as the Gonzalez Act.²

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).³

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 84 Stat. 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 1228, 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 wrongful 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), 102 Stat. 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, 111 S.Ct. 1180, 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 conducted the operation nevertheless. Due to complications occurring 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...