Levin v. United States

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LEVIN v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 11–1351. Argued January 15, 2013—Decided March 4, 2013
The Federal Tort Claims Act (FTCA) waives the Government’s sover-
eign immunity from tort suits, 28 U.S. C. §1346(b)(1), but excepts
from the waiver certain intentional torts, including battery, §2680(h).
The FTCA, as originally enacted, afforded tort victims a remedy
against the United States, but did not preclude suit against the al-
leged tortfeasor as sole or joint defendant. Several agency-specific
statutes postdating the FTCA, however, immunized certain federal
employees from personal liability for torts committed in the course of
their official duties. One such statute, the Gonzalez Act, makes the
remedy against the United States under the FTCA preclusive of any
suit against armed forces medical personnel. 10 U.S. C. §1089(a).
The Act also provides that, “[f]or purposes of this section,” the inten-
tional tort exception to the FTCA “shall not apply to any cause of ac-
tion arising out of a negligent or wrongful act or omission in the per-
formance of medical . . . functions.” §1089(e). Congress subsequently
enacted comprehensive legislation, the Federal Employees Liability
Reform and Tort Compensation Act (Liability Reform Act), which
makes the FTCA’s remedy against the United States exclusive for
torts committed by federal employees acting within the scope of their
employment, 28 U.S. C. §2679(b)(1). Under the Liability Reform Act,
federal employees are shielded without regard to agency affiliation or
line of work.
Petitioner Levin suffered injuries as a result of cataract surgery
performed at a U. S. Naval Hospital. He filed suit, naming the United
States and the surgeon as defendants and asserting, inter alia, a
claim of battery, based on his alleged withdrawal of consent to oper-
ate shortly before the surgery took place. Finding that the surgeon
had acted within the scope of his employment, the District Court re-
2 LEVIN v. UNITED STATES
Syllabus
leased him and substituted the United States as sole defendant. The
Government moved to dismiss the battery claim, relying on the
FTCA’s intentional tort exception. Levin countered that the Gonza-
lez Act, in particular, §1089(e), renders that exception inapplicable
when a plaintiff alleges medical battery by a military physician. The
District Court granted the Government’s motion to dismiss. Affirm-
ing, the Ninth Circuit concluded that §1089(e) served only to buttress
the immunity from personal liability granted military medical per-
sonnel in §1089(a), and did not negate the FTCA’s intentional tort ex-
ception.
Held: The Gonzalez Act direction in §1089(e) abrogates the FTCA’s in-
tentional 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. Pp. 8–15.
(a) To determine whether the Government’s immunity is waived for
batteries, the Court looks to §1089(e)’s language, “giving the ‘words
used’ their ‘ordinary meaning.’ ” Moskal v. United States, 498 U.S.
103, 108. Levin claims that the operative clause of §1089(e), which
provides that the FTCA’s intentional tort exception “shall not apply”
to medical malpractice claims, is qualified by the provision’s intro-
ductory clause “[f]or purposes of this section,” which confines the op-
erative clause to claims alleging malpractice by personnel in the
armed forces and the other agencies specified in the Gonzalez Act.
The Government, in contrast, argues that §1089(e)’s introductory
clause instructs 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. The choice between the parties’ dueling con-
structions is not a difficult one. Section 1089(e)’s operative clause
states, in no uncertain terms, that the FTCA’s intentional tort excep-
tion, §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. Had Congress wanted to
adopt the Government’s counterfactual interpretation, it could have
used more precise language, as it did in §1089(c), a subsection adja-
cent to §1089(e). Pp. 8–11.
(b) Under the Government’s interpretation of §1089(e), the Liabil-
ity Reform Act would displace much of the Gonzalez Act. That read-
ing conflicts with the view the Government stated in United States v.
Smith, 499 U.S. 160. There, the question was whether a person in-
jured abroad due to a military doctor’s negligence may seek compen-
sation from the doctor in a U. S. court, for the FTCA gave them no re-
course against the Government on a “claim arising in a foreign
country,” 28 U.S. C. §2680(k). In arguing that such persons also
Cite as: 568 U. S. ____ (2013) 3
Syllabus
lacked recourse to a suit against the doctor, the Government con-
tended that the Liability Reform Act made “[t]he remedy against the
United States” under the FTCA “exclusive.” §2679(b)(1). This inter-
pretation, the Government argued, would not override the Gonzalez
Act, which would continue to serve two important functions: Title 10
U.S. C. §1089(f)(1) would authorize indemnification of individual
military doctors sued abroad where foreign law might govern; and
the Gonzalez Act would allow an FTCA suit against the United
States if the doctor performed a procedure to which the plaintiff did
not consent. Adopting the Government’s construction, the Court held
that §2679(b)(1) grants all federal employees, including medical per-
sonnel, immunity for acts within the scope of their employment, even
when the FTCA provides no remedy against the United States. 499
U.S., at 166. Under the Government’s current reading of §1089(e),
the Liability Reform Act overrides the Gonzalez Act except in the
atypical circumstances in which indemnification of the doctor under
§1089(f)(1) remains possible, while under Levin’s reading, the Gonza-
lez Act does just what the Government said it did in Smith. Pp. 11–
13.
(c) The Government attempts to inject ambiguity into §1089(e) by
claiming that 38 U.S. C. §7316, a parallel statute that confers im-
munity on medical personnel of the Department of Veterans Affairs,
expresses Congress’ intent to abrogate §2680(h) with the unmistaka-
ble clarity the Gonzalez Act lacks. But this Court sees nothing dis-
positively different about the wording of the two provisions, and nei-
ther did the Government when it argued in the District Court that
§1089(e) and §7316(f) are functionally indistinguishable. Pp. 13–14.
663 F.3d 1059, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, which was unani-
mous except insofar as SCALIA, J., did not join footnotes 6 and 7.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
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, Wash-
ington, 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.*
Petitioner Steven Alan Levin, a veteran, suffered inju-
ries 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.”
——————
* JUSTICE SCALIA joins this opinion, except as to footnotes 6 and 7.
2 LEVIN v. UNITED STATES
Opinion of the Court
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 Govern-
ment’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 em-
ployment. 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 im-
munity 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).1
——————
1 This shorthand description is not entirely accurate. Section 2680(h)
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
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 defend-
ants 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, 90
Stat. 1985, 10 U.S. C. §1089, passed in 1976 and com-
monly known as the Gonzalez Act.2 That Act, controlling in
——————
does not remove from the FTCA’s waiver all intentional torts, e.g.,
conversion and trespass, and it encompasses certain torts, e.g., misrep-
resentation, that may arise out of negligent conduct. See United States
v. Neustadt, 366 U.S. 696, 702 (1961).
2 The agency-specific statutes were patterned on the Federal Drivers
Act, 75 Stat. 539, 28 U.S. C. §§2679(b)–(e) (1970 ed.), passed in 1961
and amended in 1988 by Pub. L. 100–694, §5(b), 102 Stat. 4564. The
Drivers Act made an action against the United States under the FTCA
the “exclusive” remedy for “personal injury . . . resulting from the
operation by any employee of the Government of any motor vehicle
while acting within the scope of his office or employment.” §2679(b).
Statutes conferring immunity on medical personnel of the Department
of Veterans Affairs, 79 Stat. 1156, 38 U.S. C. §4116 (1970 ed.), now
codified at 38 U.S. C. §7316 (2006 ed.), and the Public Health Service,
84 Stat. 1870, 42 U.S. C. §233 (2006 ed.), followed in 1965 and 1970,
respectively. In 1976, in addition to the Gonzalez Act, Congress enact-
ed a statute immunizing medical personnel of the National Aeronautics
and Space Administration, 90 Stat. 1988, 42 U.S. C. §2458a (1982 ed.),
now codified at 51 U.S. C. §20137 (2006 ed., Supp. IV). And in 1980, it
enacted a personal immunity statute covering medical personnel of the
Department of State, 94 Stat. 2155, 22 U.S. C. §2702 (2006 ed.).
4 LEVIN v. UNITED STATES
Opinion of the Court
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 excep-
tion. It provides: “For purposes of this section, the provi-
sions 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 . . . func-
——————
3 In
full, §1089(a) reads:
“The remedy against the United States provided by sections 1346(b)
and 2672 of title 28 for damages for personal injury, including death,
caused by the negligent or wrongful act or omission of any physician,
dentist, nurse, pharmacist, or paramedical or other supporting person-
nel (including medical and dental technicians, nursing assistants, and
therapists) of the armed forces, the National Guard while engaged in
training or duty under section 316, 502, 503, 504, or 505 of title 32, the
Department of Defense, the Armed Forces Retirement Home, or the
Central Intelligence Agency in the performance of medical, dental, or
related health care functions (including clinical studies and investiga-
tions) while acting within the scope of his duties or employment therein
or therefor shall hereafter be exclusive of any other civil action or
proceeding by reason of the same subject matter against such physi-
cian, dentist, nurse, pharmacist, or paramedical or other supporting
personnel (or the estate of such person) whose act or omission gave rise
to such action or proceeding. This subsection shall also apply if the
physician, dentist, nurse, pharmacist, or paramedical or other support-
ing personnel (or the estate of such person) involved is serving under a
personal services contract entered into under section 1091 of this title.”
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
tions.”). 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 sub-
section (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 legis-
lation 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 Lia-
bility Reform Act tracks the text of §1089(a). The compre-
hensive 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 partic-
ular agencies. Unlike the Gonzalez Act and kindred stat-
utes, the Liability Reform Act does not reference, as
§1089(e) does, the FTCA’s intentional tort exception, 28
6 LEVIN v. UNITED STATES
Opinion of the Court
U. S. C. §2680(h).
B
The petitioner, Steven Alan Levin, a veteran, was diag-
nosed with a cataract in his right eye. He sought treat-
ment 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 “phacoemulsifi-
cation with intraocular lens placement,” a surgical proce-
dure involving extraction of the cataract and insertion of
an artificial replacement lens. Levin signed forms con-
senting 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 de-
fendant. 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.
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
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 Gov-
ernment’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 Gon-
zalez 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
8 LEVIN v. UNITED STATES
Opinion of the Court
disposition.4
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”).5
II
A
We note at the outset that medical malpractice claims
——————
4 In accord with the Ninth Circuit, the Government maintains that
sovereign immunity is never waived absent unequivocal congressional
statement to that effect. See Brief for United States 14–15 (citing FAA
v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 5)); United States v.
Bormes, 568 U. S. ___, ___ (2012) (slip op., at 4). Levin, on the other
hand, urges that, in view of the FTCA’s sweeping waiver of immunity,
§1346(b)(1), exceptions to that waiver, contained in §2680, should not
be accorded an unduly generous interpretation. See Brief for Court-
Appointed Amicus Curiae in Support of Petitioner 40 (citing Dolan v.
Postal Service, 546 U.S. 481, 492 (2006)). We need not settle this
dispute. For the reasons stated, infra this page and 9–14, we conclude
that §1089(e) meets the unequivocal waiver standard.
5 We appointed James A. Feldman to brief and argue the position of
the petitioner as amicus curiae. 568 U. S. ___ (2012). Amicus Feldman
has ably discharged his assigned responsibilities and the Court thanks
him for his well stated arguments.
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
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 qualify-
ing 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 in-
structs 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 malprac-
tice 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,
10 LEVIN v. UNITED STATES
Opinion of the Court
Levin concludes, he may sue to recover from the United
States.
The Government, in contrast, reads §1089(e)’s introduc-
tory 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, includ-
ing battery, even though §2680(h) does provide that shel-
ter. 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 availa-
ble for a medical battery claim, a remedy against an indi-
vidual 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 immun-
ity, 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 opera-
tive clause states, in no uncertain terms, that the inten-
tional 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.6
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
——————
6 Corroborating this plain reading, the Senate Report on the Gonzalez
Act explains that §1089(e) was enacted to “nullify a provision of the
Federal Tort Claims Act which would otherwise exclude any action for
assault and battery” from FTCA coverage. S. Rep. No. 94–1264, p. 9
(1976).
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
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 pro-
vided 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 commod-
ity.”); 15 U.S. C. §78o–11(e)(3)(B) (2006 ed., Supp. V) (“For
purposes of this subsection, the Federal National Mort-
gage Association, the Federal Home Loan Mortgage Cor-
poration, 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), Con-
gress 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 provi-
sions of title 28.” See Barnhart v. Sigmon Coal Co., 534
U.S. 438, 452 (2002) (“[W]hen Congress includes particu-
lar 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
12 LEVIN v. UNITED STATES
Opinion of the Court
§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 negli-
gence 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 ob-
served, 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 mal-
practice 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
Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court
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 re-
main “ ‘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 applica-
tions: 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) notwith-
14 LEVIN v. UNITED STATES
Opinion of the Court
standing 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 person-
nel of the Department of Veterans Affairs (VA). As enacted
in 1965, §7316’s statutory predecessor had no provision
akin to §1089(e). See 79 Stat. 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.7 Neither did the Government
earlier on. In the District Court, the Government argued
that §1089(e) and §7316(f) are functionally indistinguish-
able. 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.
——————
7 See S. Rep. No. 100–215, p. 171 (1987) (§7316(f) was “patterned
after” §1089(e)).
Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court
* * *
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.