Newman v. Soballe

• Decision Date: 27 April 1989
• Docket Number: No. 87-6097,87-6097
• Citation: 871 F.2d 969
• Parties: Mildred M. NEWMAN, and Melvin D. Newman, Plaintiffs-Appellants, v. Peter SOBALLE, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 969

871 F.2d 969

57 USLW 2646

Mildred M. NEWMAN, and Melvin D. Newman, Plaintiffs-Appellants, v. Peter SOBALLE, M.D., Defendant-Appellee.

No. 87-6097.

United States Court of Appeals Eleventh Circuit.

April 27, 1989.

Ashley Joel Gardner, Walter A. Oleniewski, Shulman, Rogers, Gandal, Pordy & Ecker, Rockville, Md., for plaintiffs-appellants.

Dexter W. Lehtinen, U.S. Atty., Susan Hill Ponzoli, Asst. U.S. Atty., Miami, Fla., Nikki Calvano, Joanne R. Marvin, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CLARK, Circuit Judge:

The Newmans originally brought this malpractice suit against Dr. Soballe in the United States District Court for the Southern District of California alleging that Dr. Soballe, while acting within the scope of his duties as a military physician at the United States Naval Hospital in Okinawa, Japan, negligently failed to properly diagnose and treat two subcutaneous cysts in Mildred Newman's groin. As the wife of Lieutenant Commander Melvin Newman, United States Navy, Mildred Newman is entitled to military medical treatment. In Japan on November 21, 1984, Dr. Soballe performed an operation on Ms. Newman and this operation allegedly caused Ms. Newman unnecessary pain and injury. After the complaint was filed, Dr. Soballe represented to the California district court that he was a citizen of Florida, as are the Newmans, and moved to dismiss the action for lack of diversity or other federal jurisdiction.

On March 24, 1987, the Newmans refiled their complaint in Florida state court. The United States, on behalf of Dr. Soballe, then filed a petition for removal to federal court pursuant to 10 U.S.C. Sec. 1089(c). ¹ The government also moved to substitute the United States, in the place of Dr. Soballe, as the proper party defendant on the ground that 10 U.S.C. Sec. 1089(a) prescribes that a federal tort claim against the United States under the Federal Torts Claims Act (FTCA) is the Newmans' exclusive remedy for Dr. Soballe's medical negligence. ² The district court granted both of the government's motions and, over the Newmans' counter-motions, dismissed the action for lack of subject matter jurisdiction. The district court held that, pursuant to 10 U.S.C. Sec. 1089, (the Gonzalez Act), the FTCA was the plaintiffs' exclusive remedy but that the FTCA specifically does not apply to torts arising in foreign countries (Order of Dismissal pp. 1-2). ³ This appeal follows and we find that the district court erred in holding that it had jurisdiction over the case because the plaintiffs' exclusive remedy was under the FTCA and then dismissing the case for lack of jurisdiction because the FTCA does not apply. It is obvious on the face of the statute, 28 U.S.C. Sec. 2680(k), that "any claim arising in a foreign country" is not within the scope of the FTCA or 28 U.S.C. Sec. 1346(b). Because the district court has no jurisdiction of the removal of the state court action under Sec. 1346(b), it has no power to assume jurisdiction and then hold that the FTCA does not apply. Therefore, we reverse.

The issue in this case is whether the Gonzalez Act requires the substitution of the United States as a proper party defendant and thereby confers subject matter jurisdiction to federal courts when a nonmember of the military alleges that a doctor employed by the United States Navy committed malpractice at an overseas hospital. If the Gonzalez Act confers such jurisdiction, federal courts would be forced to dismiss these overseas medical malpractice suits based on the United States' sovereign immunity under 28 U.S.C. Sec. 2680(k). We need not address the constitutionality of such a scheme, because we decide that, under the facts of this case, the Gonzalez Act was never meant to immunize Dr. Soballe from personal liability or to leave Ms. Newman without a judicial remedy.

I. Subsection (f) of the Gonzalez Act Allows Suit Against Individual Medical Personnel in Certain Situations.

In the normal situation, a person injured by an employee acting within the scope of employment may sue either the employee, liable individually, or the employer, liable vicariously, for the injury sustained. By analogy, a party injured by a federal employee should be able to bring suit against the individual federal employee or against the United States as the employer. On the one hand, the FTCA is the statute that authorizes suit against the United States and, subject to certain exceptions, it does provide that the United States shall be liable in the same manner and to the same extent as a private individual in like circumstances. On the other hand, a new 1988 amendment to the FTCA and certain statutes such as the Gonzalez Act, generally immunize certain federal employees from personal tort liability and force a plaintiff to pursue a remedy only against the United States under the FTCA. See, e.g., the Drivers Act, 28 U.S.C. Sec. 2679, the Veterans Administration Act, 38 U.S.C. Sec. 4116, and the Foreign Relations Authorization Act, 22 U.S.C. Sec. 2702. These immunity statutes, however, do not necessarily apply to every situation concerning a suit against a federal employee and careful consideration must be given to each statute to see whether it forces an injured party in a particular situation to seek redress only against the United States under the FTCA.

For example, the new amendment to the FTCA, enacted after the complaint in this case was filed, provides that whenever an individual United States employee is sued in common law tort for acts committed within the scope of employment, the exclusive remedy is against the United States. See Federal Employee Liability Reform & Tort Compensation Act of 1988, 1988 Amendment to 28 U.S.C. Sec. 2679. This amendment, enacted to negate the recent Supreme Court decision of Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), is expressly designed to immunize from personal tort liability those federal employees not protected by other immunity statutes. See H.Rep. 100-700, 100th Cong.2d Sess. 2, U.S.Code Cong. & Admin.News 1988, p. 5945.

As a military physician, Dr. Soballe is specifically protected by the Gonzalez Act and is therefore not among those federal employees affected by the Westfall decision or the amendment. Cf. H.Rep. 100-700, 100th Cong.2d Sess. 4, 7, U.S.Code Cong. & Admin.News 1988, pp. 5947, 5950. More importantly, the amendment is part of the FTCA and only applies in situations where the FTCA itself would apply. The new amendment and subsection 2680(k) are both part of the same chapter of the FTCA, chapter 171. Subsection 2680(k) expressly holds that the provisions of chapter 171 shall not apply to claims arising in a foreign country. Because the Newmans' claim arises in a foreign country, the new amendment does not apply to this case and we must look to the Gonzalez Act to resolve this case.

We agree with the government that the starting point in statutory interpretation is the language of the statute itself. United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986). Thus, we begin our analysis by turning to the language of the Gonzalez Act. Subsection (a) provides that the remedy against the United States for military malpractice, when certain personnel are acting within the scope of their employment, shall be exclusive. Subsection (c) provides for the removal to federal court of a military medical malpractice action in state court upon certification by the Attorney General that the personnel sued was acting within the scope of employment when the tort was committed. Finally, subsection (f) authorizes the heads of agencies to indemnify or provide liability insurance for, among other things, medical personnel assigned to a foreign country. ⁴ The government argues that subsection (a) plainly grants blanket immunity to all military medical personnel regardless of where they are stationed and that subsection (f) applies only when personnel are assigned to a foreign country and suit is brought in that country's court system.

Where a statute is clear on its face, its plain meaning should be given effect without reference to legislative history. James, 478 U.S. at 606, 106 S.Ct. at 3122. The Gonzalez Act, however, is far from clear. While subsection (a) "plainly" states that an action against the United States is to be exclusive, subsection (f) "plainly" states that a person under subsection (a) may be held harmless or provided liability insurance if, among other things, that individual is assigned to a foreign country. Thus, while subsection (a) anticipates actions against the United States, subsection (f) anticipates actions against the individual. In reading the statute as a whole, as we are required to do, Carchman v. Nash, 473 U.S. 716, 743 n. 11, 105 S.Ct. 3401, 3415 n. 11, 87 L.Ed.2d 516 (1985), we find that these two subsections create an ambiguity and we therefore look to the legislative history for guidance.

The legislative history does state that the purpose of the Gonzalez Act is to protect certain medical personnel from individual liability. It appears, however, that Congress did not contemplate that both stateside and foreign personnel would enjoy the same form of protection under the Act. The legislative analysis of this statute is revealing:

Subsection (a) of the new section 1089 makes the remedy against the United States provided by 28 USC 1346(b) and 28 USC 2672 the exclusive remedy for damages arising from medical malpractice by certain U.S. medical personnel.... [The FTCA] makes the United States liable, under the local law of the place where the tort occurred, in the same manner and to the same extent as a private individual under like circumstances.... Suits for damages for personal injury against...