LEVIN v. UNITED STATES
On March 12, 2003, Steven Levin was scheduled to undergo cataract surgery performed by Lieutenant Commander Frank Bishop, M.D., a United States Navy surgeon in Guam. Levin previously gave his written consent to the procedure but claims that he attempted to orally withdraw it prior to the surgery. He suffered complications from the surgery and faces continuing treatment with unclear likelihood of success. Levin sued Dr. Bishop for battery and negligent medical malpractice. The United States substituted itself for Dr. Bishop and filed a motion for summary judgment. The district court granted summary judgment for the negligent medical malpractice claim, not the battery claim. The United States then filed for dismissal of the battery claim and alleged that the Federal Tort Claims Act preserved sovereign immunity against battery claims. The district court dismissed the claim. The United States Court of Appeals for the Ninth Circuit affirmed.
Does the Federal Tort Claims Act prevent the United States from being prosecuted for battery caused by military medical personnel acting within the scope of employment?
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
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 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. Bluemink, 511 F. 2d 399, 404 (CADC 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 (1991) . One such measure was the Medical Malpractice Immunity Act, 90Stat. 1985, 10 U. S. C. §1089, passed in 1976 and commonly 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 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), 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 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 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 “essentially identical counterpart” to §1089(e), which similarly “nullif[ies] §2680(h) and thereby expand[s] the injured party’s remedy against the government under the FTCA”). 6II 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 directive: 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. §78o–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 wording 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 (“§1089(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.
1 * Justice Scalia joins this opinion, except as to footnotes 6 and 7.
2 This shorthand description is not entirely accurate. Section 2680(h) does not remove from the FTCA’s waiver all intentional torts, e.g., conversion and trespass, and it encompasses certain torts, e.g., misrepresentation, that may arise out of negligent conduct. See United States v. Neustadt, 366 U. S. 696, 702 (1961) .
3 The agency-specific statutes were patterned on the Federal Drivers Act, 75Stat. 539, 28 U. S. C. §§2679(b)–(e) (1970 ed.), passed in 1961 and amended in 1988 by Pub. L. 100–694, §5(b), 102Stat. 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, 79Stat. 1156, 38 U. S. C. §4116 (1970 ed.), now codified at 38 U. S. C. §7316 (2006 ed.), and the Public Health Service, 84Stat. 1870, 42 U. S. C. §233 (2006 ed.), followed in 1965 and 1970, respectively. In 1976, in addition to the Gonzalez Act, Congress enacted a statute immunizing medical personnel of the National Aeronautics and Space Administration, 90Stat. 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, 94Stat. 2155, 22 U. S. C. §2702 (2006 ed.).
4 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 personnel (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 investigations) 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 physician, 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 supporting personnel (or the estate of such person) involved is serving under a personal services contract entered into under section 1091 of this title.”
5 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.
6 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.
7 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).
8 See S. Rep. No. 100–215, p. 171 (1987) (§7316(f) was “patterned after” §1089(e)).
ORAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-1351, Levin v. United States.
James A. Feldman: Mr. Chief Justice, and may it please the Court:
As the language and structure of the Gonzalez Act demonstrate, Congress did not completely eliminate the long-recognized tort remedy that's available to essentially everybody else in the country when doctors perform surgery without a patient's consent.
By abrogating the intentional tort exception to the FTCA for the class of cases covered by the Gonzalez Act, Congress both preserved a remedy for the victims of that tort, and, by virtue of the Gonzalez Act's exclusive remedy provision, they made certain that the Federal employees themselves would not be sued.
As everyone understood at the time of the enactment, that was the meaning of the terms of the Gonzalez Act.
The Act has two clauses, an operative clause and an introductory clause.
The operative clause says in simple declarative terms that the intentional tort exception to the Federal Tort Claims Act shall not apply to any cause of action arising out of a wrongful act or omission in the performance of medical functions.
Justice Ruth Bader Ginsburg: Mr. Feldman, but it says first for purposes of this section.
And as I understand your argument, those words don't count.
In other words, you would be making -- you would interpret the statute the same way if the sentence started with the provisions of Section 2680(h).
James A. Feldman: No, Your Honor, that's not right.
We -- that -- the part after the introductory clause says:
"The provisions of the intentional tort exception shall not apply to medical malpractice cases. "
And that would make it apply across the government to any government employee who is performing those medical functions.
By saying for purposes of this section, Congress limited it in accordance with the case -- the agency by agency approach that it had adopted in this area, and limited it to just the cases that are covered by the Gonzalez Act; that is, by malpractice that's committed by doctors of the Department of Defense, the National Guard, the Armed Forces Retirement Home, and so on.
And so the -- each clause serves quite an important function.
Congress had before the Gonzalez Act -- they had already passed the statutes dealing, for example, with the Public Health Service that's essentially written in the same terms, with the Veterans Administration -- although part of that would have been added later -- with the State Department doctors, and so on.
And so they were proceeding on an agency-by-agency basis, and the way to accomplish that was to first say, We -- we think that the intentional tort exception should not apply to these cases, because medical batteries of the sort that we -- as alleged in this case are so close to the kinds of medical malpractice cases that are going to be brought against the government anyhow.
But then in each statute, they say for purposes of this section, because it's only the agencies, only the personnel covered by those sections, and the torts covered by those sections.
Justice Ruth Bader Ginsburg: In the Veterans Administration, it doesn't say that, does it?
James A. Feldman: The Veterans Administration -- originally, the original Veterans Administration statute, which was from about 1965, doesn't have this 1089(e) intentional tort exception at all in it.
But then they added it later about 10 years after this statute, and then they added a provision that was slightly worded differently, but it achieves exactly the same result.
Instead of saying for purposes of this section, it says
"by the personnel named in Section A, which accomplishes exactly the same thing. "
And actually if you look at the history of that statute, the Senate report on that statute quite clearly recites that Congress understood that 1089(e), the statute here, has exactly the effect that I said.
And they said, We are modeling it on that provision, and then they did tinker with the wording, and there's actually no explanation for the specific change.
But it's not uncommon that in statutes that have been reviewed by different committees and passed 10 or 12 years apart, that Congress would have a -- they would use slightly different language to achieve essentially the same purpose.
Justice Stephen G. Breyer: What would -- what do you do, if anything, about those of us, I hope more than one, who actually look at legislative history and the House and Senate Report, the Senate Report says subsection (e) would nullify a provision of the Tort Claims Act which would otherwise exclude any action for assault and battery.
Then the House says about the same thing.
So when I look at those two things, I think the purpose of this Act was to do just exactly what the other side says: It was to get rid of assault and battery as an exception and said the government of the United States will pay for unlawful assault and battery.
That's what the two reports say.
That's why they passed it.
James A. Feldman: Right.
I believe actually that's our -- that's the way we read it, exactly like that, which is the -- by nullifying the intentional tort exception -- what the intentional tort exception provides is -- actually what it says is:
"The provisions of the Federal Tort Claims Act shall not apply to any case arising out of assault, battery. "
and so on.
And by eliminating that, the provisions of the Federal Tort Claims Act are otherwise totally applicable to cases of medical battery, like this, or other claims of intentional tort.
And so for cases covered by the Gonzalez Act; that is, cases of medical malpractice committed within the scope of employment by the doctors of the certain specified agencies that Congress has named for those cases, there is no intentional tort exception, and therefore, you can bring an action against the government.
Chief Justice John G. Roberts: I don't quite understand your answer to Justice Ginsburg on the for purposes of this section.
What the section does is provide that the remedy against the United States is exclusive.
But what 1089(e) goes on to say is that the 2680(h) provision doesn't apply.
So I don't see how that -- I mean, the -- the reference is to the exclusivity, not to the waiver of the limitation on -- on intentional torts.
James A. Feldman: Well, I don't think that that's right.
I mean, I think for purposes of this section you have to read it in context.
And the fact is that 2680 -- the term 2680(h) of Title 28 doesn't appear elsewhere in the Gonzales Act.
And the only work that that provision does in the law, section -- the intentional tort exception, 2680(h) of Title 28, the only work that that does is to make the -- is in the Federal Tort Claims Act, is to make the Act inapplicable to those kinds of cases.
So when they say in simple terms that shall not apply, all that could mean, all that could possibly mean, is you eliminate that and then you have the Tort Claims Act how it is.
And then what the four purposes of this section does is say, but we're not doing that across the board for every Federal employee everywhere or even every malpractice case.
We are just doing it for the claims that are covered, for the cases that are covered in this section, for purposes of this section.
In this section, if you look at (a) then, which is the basic exclusive remedy provision that Your Honor mentioned, what (a) does is deal specifically with -- with medical malpractice committed by doctors and personnel.
Justice Sonia Sotomayor: One of the strongest arguments by your adversary has to do with the incongruity between these claims and the Westfall ruling by this Court.
It's more a policy argument than a language argument, but how do you address the fact that we will be interpreting essentially two statutes that are almost identical but with different conclusions if we were to adopt your view.
James A. Feldman: Right.
I think there are -- there are a few reasons why the statutes have to be construed differently.
I mean, one is that if you look at the Court's decision in Smith where it construed that provision of the Westfall Act, it -- the Court never suggested that the language -- the part of the Westfall Act whose language is the same as this supported its conclusion there.
It was relying on other provisions in the Westfall Act.
In particular there was a provision that said:
"Once the government substitutes itself for the defendant, the case shall proceed subject to all the exceptions and limitations in the Tort Claims Act. "
And the Court said: Well, yes, that gives us a clear understanding that, whether there's exceptions or not, we want that case to proceed -- to proceed.
That provision isn't here in the Gonzalez Act.
And there was another provision in the Westfall Act -- in the Smith case, in the Westfall Act that dealt with making a specific exception for Bivens cases and again that provision isn't here.
Justice Antonin Scalia: Why would Congress want to treat them differently?
James A. Feldman: Right.
I think the reason is when they were dealing in this case with this area in 1976 they were dealing with a specific problem of medical malpractice and they were looking at that problem, doctors, doctors had to get insurance, what are we going to do about that for Federal employees.
And they -- when they focused on that problem, actually the Executive Branch itself said in a letter that was sent to the Senate committee, it said there's an urgent need both to assure adequate remedies for tort victims and to protect Federal employees.
And that's what they were trying to do here and I think you see it throughout the Gonzalez Act.
Justice Antonin Scalia: But why did they feel the need here to assure adequate remedies for tort victims where they did not in the Westfall Act?
I mean, you know, injured tort victims are injured tort victims.
It does seem, you know, rather odd that in one instance Congress would be concerned and the other not concerned.
James A. Feldman: Right.
I think the difference is that here they were dealing specifically with the problem of medical malpractice.
12 years later when they got around to the Westfall Act, they weren't looking at medical malpractice; they were looking generally at the whole problem of government employees being sued after this Court's decision in the Westfall case, a problem that particularly affected actually lower level government employees who it's clear couldn't take advantage of the discretionary function exception.
And when they are looking at the broad universe of employees, they took a different approach and decided, well, we're just going to -- some people are just going to be out of luck because this is the determination that Congress made, felt was appropriate there.
But when it was looking at the specific problem of medical malpractice in the Gonzalez Act, it definitely took the position, as everybody said at the time and as the structure of the Act itself showed, that they wanted to preserve remedies and there are two provisions in the Westfall Act that make that clear--
Justice Samuel Alito: Well, maybe we could address this in slightly more concrete terms.
You have two -- two situations.
In one case a Federal employee who's driving a car deliberately runs somebody down; and in the second case, a government doctor grabs somebody who doesn't want an operation and performs the operation anyway.
Now, as -- under your reading, there would be a claim against the government in the second situation, but not in the first situation; is that right?
James A. Feldman: --That's correct.
Justice Samuel Alito: Why would Congress want that?
James A. Feldman: The reason they'd want it is this: In the first situation, that really arose -- that problem came with the Tort Claims Act when it was first enacted in 1946.
And when Congress was looking at the universe of Federal employees, they felt, and especially given the law at that time and that continued really up to the present, that when a Federal employee or average Federal employee for the types of intentional torts that they commit, especially a battery, it's extraordinarily unlikely that that's going to be within that scope of that employee's employment.
And Congress felt, well, we want to just eliminate that altogether.
It's not just to hold the government responsible for that kind of a claim when some Federal clerk slugs someone or something like that, and that was the determination they made.
When they got around to 1976 to dealing with the particular problem of medical malpractice, it doesn't actually usually happen -- these kinds of claims don't arise -- I'm not aware of any where a doctor just grabs somebody and throws him physically into the operating room.
They happen when the doctor is performing some procedure and performs a different procedure or a procedure that was not authorized by the patient.
And that -- that is very closely related to core medical malpractice claims of exactly the sort that they were dealing with here.
It's very closely related to informed consent claims, which I believe the government -- I read the government to be conceding could be brought against the government, and they thought there was no reason to distinguish -- to distinguish one type of medical malpractice from another.
We want all of these claims, we want to provide a remedy and they all should be brought against the government.
I would add one other--
Justice Anthony Kennedy: In law review commentaries and maybe in lower courts' opinion, is there -- is it fair to say that the weight of authority is to criticize the battery-negligence distinction as being productive of litigation and not really making a lot of sense?
James A. Feldman: --I think that is fair to say, and, you know, States -- a lot of States have dealt with this by dealing in statutory -- in statutes, not in the common law development, so they could kind of rationalize the system and say, look, this is the kinds of claims you're going to have.
But the key thing is that everybody in the country, I think, under every State's law, if a doctor performs an operation that you didn't consent to, you have an action in tort.
And that protects both you and provides an incentive, an important incentive, to doctors and medical personnel to be sure that they are only doing what they are authorized to do.
There is not a hint that when Congress was dealing with the Westfall Act -- I keep saying the Westfall Act -- when Congress was dealing with the Gonzalez Act, there is not a hint that they were trying there to say, well, we want to save money or something by eliminating those kind of very, very traditional tort claims from those victims and we don't want those people to have compensation.
Justice Ruth Bader Ginsburg: Mr. Feldman, do I understand the mechanics of this right that if the injured person sues the United States directly, that suit would fail because the battery exclusion would apply, but it's only by suing the officer, the doctor, and then getting the United States substituted that the battery exception is abrogated; is that right?
James A. Feldman: No, I don't believe that that's correct.
There is nothing in this Act that says it should make any difference.
There is nothing certainly in subsection (e) or anywhere else in the Act that says it should make any difference whether you are suing the government or suing the -- or suing the doctor.
You sue the government, the government says, well, we have a defense that the intentional tort exception applies.
You would say, no, it says here for purposes of this section the intentional tort exception does not apply.
And what that means,
"for the purposes of this section. "
is for claims that are covered by this Act, which is claims that are medical tort claims brought against personnel of the affected agencies who are acting within the scope of their authority.
Justice Sonia Sotomayor: Are there any -- I'm sorry.
Are there any other tort claims besides the lack of consent battery claim at issue here that could be encompassed by the Intentional Tort Act as it relates to medical malpractice?
Let's assume that it's not an operation, but sexual behavior with a patient in their hospital room, something of that nature.
Is that covered under the Gonzalez Act as a claim against the United States?
James A. Feldman: If it would be an assault or battery that was committed by -- within the scope of the professional's employment, then it would be.
But it's always the question of whether it's within the scope of employment.
And I think usually the case law -- I mean, I think usually the cases are that a doctor who commits a sexual assault on a patient or something is not acting within, in the kind of circumstances you are talking about, is not acting within the scope of employment.
But that would be a case-by-case determination.
There might be some kind of case where be.
It would depend on the facts of the case.
Justice Sonia Sotomayor: This exception you're talking about is regularly applied in the lower courts?
James A. Feldman: I beg your pardon?
Justice Sonia Sotomayor: In the lower courts, this determination is regularly made?
James A. Feldman: The scope of employment determination is made every day, because that is made -- that is applicable throughout in any kind of respondeat superior situation whenever the employer of the medical professional is sued and that kind of thing, or nonmedical professional for that matter.
Justice Antonin Scalia: When the government removes the case, it concedes that point, doesn't it, normally?
Where a case is removed from State court, the government, the Attorney General, must certify that it was within the scope of employment?
James A. Feldman: That's correct.
And that is actually one of the two -- one of two of the key provisions of the Act that kind of establish, that could make it very clear that what Congress was trying to do was preserve remedies, because in that very provision after it talks about removing when the Attorney General has certified that it's within the scope of employment, it says:
"The case can be remanded if the removed case is one such that there -- that no remedy against the United States is available. "
And what that shows is that Congress knew that there would be actions that would continue to be brought against doctors and they actually wanted to provide for that right there and say it should be -- those should be remanded to State court and then they will proceed against the doctor in State court.
Then there is -- so that there would be--
Justice Antonin Scalia: What was that case, where no action against the United States is available?
James A. Feldman: --That would be a case, for example--
Justice Antonin Scalia: Not by reason of the battery?
James A. Feldman: --No, it wouldn't be -- if Congress didn't have this provision in the statute, it would have been by reason -- that would have been.
Justice Antonin Scalia: Yes, yes.
James A. Feldman: Another one would be a foreign tort, which is also another exception under the Tort Claims Act--
Justice Antonin Scalia: I see.
James A. Feldman: --a discretionary function case, and there are some in the medical context.
Justice Antonin Scalia: I got you.
James A. Feldman: Or one of the other exceptions.
All of those exception cases, they go on.
They go on, and Congress could have closed all of them down and, in fact, if Congress was worried that there would be -- really, if their sole purpose here was to say, We don't want any actions to be brought against Federal employees, they could have just said, We don't want any actions to be brought against federal employees.
But instead, they are providing for what happens and for the continuation of the action against the doctor.
Justice Samuel Alito: Now, the government has an alternative interpretation and I know you think it's wrong, but would you go further and say that it's not a plausible interpretation?
James A. Feldman: I would.
I think that because as the court -- when the courts used, you know, a number of different formulations to talk about that -- I think you are referring to a kind of strict construction rule that applies to waivers of sovereign immunity, which we don't think is applicable here.
But even where that rule does apply, really the question is, is it a reasonable degree of clarity that Congress intended to waive immunity?
As the Court has said, is it clearly discernible from a fair reading of the statute that they intended to waive?
And it has to be clear, and I think it is clear here.
And that was what everybody at the time of the statute thought.
It's what the government itself thought up through the time of the Smith case, 15--
Justice Samuel Alito: But it wasn't the interpretation adopted by the district court and by the Ninth Circuit, which you still say is implausible.
James A. Feldman: --I think so.
I would add that I am not here to defend the Ninth Circuit's judgment, but I would add that they had a pro se litigant before them and I don't think they had access to the full degree of presentation that they might have had if it had been more fully developed.
But I do think that when the Court is making that determination of what's clearly discernible from a fair reading of the statute, the Court has also made it clear, though, that what you don't do is take each word in the statute and say, We're going to take the most pro-government meaning of this word and then you add them altogether.
What you do is you look at the statute as a whole, you look at the context of the statute, you look at the structure of the statute, and then you say what is plausible, what is clearly discernible from a fair reading.
Justice Ruth Bader Ginsburg: Mr. Feldman, when the Westfall Act, which doesn't abrogate the intentional tort provision, when that was passed, why -- was there any reason why Congress kept the five or six separate acts like the Gonzalez Act, instead of saying, Well, we did this piecemeal for particular agencies, and now we were dealing with Federal employees across the board, so there is no reason why we should have these five or six that go another way?
James A. Feldman: Well, I can give you the answer that the government gave in its brief in Smith, which is the Gonzalez Act and the other four or five statutes continue to serve two, at least two vital functions, and one is specifically this, that they eliminate the intentional tort exception and, therefore, allow relief for victims of intentional tort in this medical malpractice context just like victims of other kinds of malpractice.
The other thing is, there are some cases, for instance, foreign torts, where there is another provision of the Gonzalez Act, 1089(f), that provides for indemnifying or holding harmless doctors when judgments are against them in certain -- when there's a foreign tort, when a doctor has been detailed to a nonfederal agency, or if the circumstances are such as are likely to preclude a remedy under the Tort Claims Act.
So again, Congress in that -- that provision remains important because there could be a foreign judgment against the doctor or something even after the Westfall Act and that gives the authority to reimburse the doctor if the agency determines that that's appropriate.
But that provision also shows that Congress intended that to preserve remedies here, because it would have made no sense for Congress to say, We want to provide for the indemnification or reimbursement of the doctor, if what they really were trying to do was eliminate all the cases against doctors.
Justice Elena Kagan: Mr. Feldman--
Justice Antonin Scalia: Justice -- it's right on the same thing.
That provision ends, and I am strengthening your last point.
That provision ends:
"If the circumstances are such as are likely to preclude the remedies of third persons against the United States described in Section 1346(b) of Title 28. "
That clearly envisions that in the ordinary case those remedies against the United States would not be precluded.
James A. Feldman: That's right.
And the -- and the choice that Congress had here really was between taking intentional tort cases and allowing them to be continued to be brought against doctors and then subject to this kind of reimbursement provision which they had provided for or say, No, we want these to just be brought against the government and to protect the Federal employees much more fully.
And so that was the purpose of 1089(e)?
They said, We want to steer this into the same channel that all the other malpractice actions are going into.
Justice Elena Kagan: --Mr. Feldman, as I understand your argument and the differences that you have with the government, you have one set of differences about the meaning of 1089(e), but then another set about this question of, if it were true that the government was immune from suit, could you bring a tort suit against the doctors?
And the government said -- says no, and you say yes, you might be able to do that.
But do you have to answer that question at all in order to say that you're correct on 1089(e)?
James A. Feldman: No.
I mean, that's -- that question isn't at issue in this case.
That would really only be directly at issue if somebody brought a suit against the doctor.
Justice Elena Kagan: So there is a lot of going back and forth about this question of what would happen if the government were immune, would the individual doctor be immune, but that is essentially irrelevant to the question before us; is that correct?
James A. Feldman: I just wouldn't say it's irrelevant, because what the provisions that I have been talking about show is that Congress -- Congress was not trying in this Act, unlike in the Westfall Act, which doesn't have either of these two provisions, the reimbursement and remand provision that I've talked about -- unlike in the Westfall Act, Congress wasn't trying to save money or other -- do something else by just eliminating remedies for victims.
It was trying to, as the Executive Branch said, as I said, to assure remedies for all tort victims and to protect doctors in a variety of different ways.
And given that that's what they were trying to do in the Gonzalez Act, which is clear from the structure, that also helps clarify what 1080 or makes more clear what 1089(e) means.
Justice Elena Kagan: Saying it a different way, I don't have to accept your broader argument.
I can remain ambivalent about your broader argument and still accept your narrower argument?
James A. Feldman: Yes.
Justice Elena Kagan: Is that correct?
James A. Feldman: Yes, that is correct.
I would add that, with respect to the strict construction standard, I don't think it does apply in this context.
The Court has never applied it in the Federal Tort Claims Act context.
In the Gonzalez Act 1089(e) specifically refers to the Federal Tort Claims Act.
It says Section 2680(h) of Title 28.
Each of the other provisions of the Gonzalez Act for their operation also depend on the Federal Tort Claims Act.
The exclusive remedy provision talks about the Tort Claims Act.
The reimbursement provision, the remand version, each of them -- the whole statute is really part of the Federal Tort Claims Act machinery.
And when Congress invoked that machinery here, I think it knew and I think it was consistent with this Court's precedents that the Court applied the same rule that it applied in the Dolan case, which is construing the words in accordance with their reason and normal tools of statutory construction without a strict construction rule.
Although, as I said, I do think that it is clear what the meaning of -- of the provision is if you do apply the rule.
Chief Justice John G. Roberts: Thank you, Mr. Feldman.
ORAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE RESPONDENTS
Pratik A. Shah: Mr. Chief Justice, and may it please the Court:
Subsection (e) of the Gonzalez Act states in pertinent part that: For purposes of this section, which refers to the Gonzales Act,
"the FTCA's intentional tort exception shall not apply. "
The question in this case is whether those words unequivocally waive sovereign immunity for medical battery claims like petitioner's.
Chief Justice John G. Roberts: Unequivocally -- we have a lot of cases that say you don't get -- you certainly get the benefit of the unequivocally standard when you are talking about a waiver of sovereign immunity in the first instance, but you don't keep getting the benefit over and over again when you are talking about in this case an exception to an exception to an exception.
Pratik A. Shah: Well, Your Honor, I think the canon actually applies most strongly in this set of circumstances.
And let me talk about Dolan and the line of cases which recognizes a very narrow exception to the normal presumption against waivers of sovereign immunity.
Dolan and its predecessor cases recognize that the narrow exception to the canon when construing the scope of exceptions that were enacted alongside the broad waiver of sovereign immunity in the FTCA itself.
And the purpose of drawing that exception to the canon was it didn't want -- the Court didn't want to defeat Congress's purpose as manifest in the broad waiver itself.
Those exceptions were cutting back on the contemporaneous waiver of sovereign immunity.
The Court said, We don't want to cut back, given the uniquely broad waiver that the FTCA enacts, the narrow rule exception limited to those circumstances, that hasn't been applied outside those circumstances.
Unlike those cases, this case is not construing the scope of an exception that was enacted alongside the FTCA that was trying to cut back on the waiver of sovereign immunity.
To put it more concretely, on the day before the Gonzalez Act was enacted, there was no question that sovereign immunity barred the type of claim at issue.
That is, no one had any dispute that the FTCA's baseline of sovereign immunity applied and would have blocked this claim.
The question is whether--
Chief Justice John G. Roberts: Well, but that was because at that point there was an exception to the exception of sovereign immunity.
Pratik A. Shah: --Correct.
Chief Justice John G. Roberts: And you're going even a step further to say you get the benefit of the unequivocal test that you've set forth at even the next stage.
Pratik A. Shah: Here's--
Chief Justice John G. Roberts: You've already -- you've already used up your benefit of an unequivocal requirement when you've got the interpretation of the FTCA itself, which is the waiver of sovereign immunity.
Pratik A. Shah: --Well, Your Honor, we haven't used it up because of the scope of interpreting Section 2680(h).
You wouldn't apply the waiver because of the exception that was enacted in Dolan.
That's Dolan itself.
If we were just talking about construing the scope of Section 2680(h) itself, I would agree completely with you.
What we have here is some years later we have a baseline of sovereign immunity.
Everyone agrees that the FTCA and its exceptions have struck the appropriate balance.
Chief Justice John G. Roberts: Wait a minute.
You agree with me that you don't get the benefit of your higher standard of interpretation with respect to 2680(h)?
Pratik A. Shah: With the respect to the terms of 2680(h) as enacted at that time.
Chief Justice John G. Roberts: But then the -- then the heightened standard of use sort of resurrects again when you get to considering an exception to 2680(h).
Pratik A. Shah: --The reason, Your Honor, is that you have a baseline of sovereign immunity.
What 26 -- in order for -- for the other side to prevail, Section 1089(e) has to waive sovereign immunity.
It has to -- it has to enact a new waiver of sovereign immunity that undisputedly applied the day before the Gonzalez Act.
That is when the canon should apply most strongly, when -- when the other side is saying that Congress--
Justice Sonia Sotomayor: What do you need more clear than (h) doesn't apply?
Pratik A. Shah: --Well, Your Honor--
Justice Sonia Sotomayor: I mean, I don't know how much clearer Congress has to get than to say it's nullified.
Pratik A. Shah: --Sure.
Justice Sonia Sotomayor: What more does it have to say; the exception doesn't apply and then what's left.
Pratik A. Shah: Your Honor, if all it said is that the intentional tort exception does not apply, I would agree with you that that would be enough, and that's exactly what Congress said in the 1988--
Justice Antonin Scalia: But it didn't want to say it shall not apply for everything.
It didn't want to eliminate the intentional tort exception for everybody, right?
It only wanted to eliminate it for the people covered by -- by the Gonzalez Act.
Pratik A. Shah: --That may well be true, and Congress, when it enacted the 1988 VA Act, did it in the most direct way.
"The intentional tort exception shall not apply with respect to personnel employed by the VA. "
Justice Antonin Scalia: It might have said that, but if it wanted to be more parsimonious in its language it could simply say for purposes of this section, which section applies only to these particular individuals.
Pratik A. Shah: Justice Scalia, I think it might be helpful to take a step back.
We have four statutes starting in 1965, then 1976.
The Gonzalez Act was part of that chain.
All four statutes in this relevant subsection, the analogue, the subsection (e) here, said,
"For purposes of this section, the intentional tort exception shall not apply. "
Then we get to 1988, the last one in the line, which is the VA amendment.
It changes that language.
It eliminates that opening proviso for purposes of this section.
The legislative history accompanying it says: Look, we want to allow intentional tort remedies for veterans.
It does so -- the only reason I can conceive of that Congress would have done it is because it didn't think that the prior four model statutes did it clearly enough.
And I think that is the reason.
And -- and if we were in a normal statutory--
Justice Antonin Scalia: It was a -- it was a different Congress.
They don't always use the same language.
Pratik A. Shah: --Well, Your Honor, they used the identical language--
Justice Antonin Scalia: You're -- you're lucky they even remember the earlier statutes.
Pratik A. Shah: --Well, Your Honor, they use the identical language in every other provision of that statute.
They made an affirmative decision to change the language of subsection (e).
Now, if this were an ordinary--
Justice Sonia Sotomayor: Now, what do you do with Justice Breyer's point or with your adversary's point?
I know you'll tell us don't look at the Congressional Record because it suits you right now, because when it doesn't you point to it extensively.
But what do you do with the Veterans Act record that says, we are modeling ourselves after the Gonzalez Act, including its nullification of the intentional tort?
Pratik A. Shah: --Well, Your Honor, it said the first part; it did not say the second part.
There is nothing in that legislative history that says it is -- it thought 1089(e) nullified the intentional tort exception.
It says it's patterned after the Gonzalez Act, and then it changed the main language, the opening proviso of that provision.
Now, if this were an ordinary case of statutory interpretation, this Court would have to figure out whether by changing that language, did Congress just want to tinker with the language to clarify its intent?
Did it intend to have a dispositive change by making that change in language?
But this is not an ordinary case of statutory interpretation.
Justice Antonin Scalia: Well, listen, I -- you know, I don't -- I don't much care about legislative history, but -- but if I did, I wouldn't think that -- that you would say it is patterned after another Act where you change a very basic provision, whether suit can be brought against the United States or not.
Pratik A. Shah: Well, Your Honor, it is patterned--
Justice Antonin Scalia: I mean, that's sort of rudimentary and fundamental to it.
It doesn't seem to me they would say it's patterned after it.
But, you know, I -- I don't care.
Pratik A. Shah: --Well, Your Honor, it is patterned in the sense it does use the operative language.
It takes out the key opening proviso, which is the entire dispute in this case.
But legislative history, while it might be important if this were a normal statutory interpretation case, this Court has said time and time again you cannot look to the legislative history to supply an unequivocal waiver that is not present in the text itself.
Justice Elena Kagan: Well, let's go back to the text then, Mr. Shah.
As I understand your argument, it goes something like this.
This provision is there to -- to prevent people from drawing a mistaken inference.
And the inference would be that the doctors were liable because the government was not.
Now, there are a thousand ways to do that pretty clearly.
You could just say: Irrespective of whether the government is liable, the doctors are not, or some such thing.
Pratik A. Shah: Sure.
Justice Elena Kagan: But instead what Congress did was it enacted a kind of let's pretend provision, right?
Let's pretend that the government is liable, so then the inference won't arise.
Now, that has to be not just not the best way of achieving Congress's objective; it has to be the worst, right?
Because then you're raising the inference that in fact the government is liable.
Why would Congress have wanted to do that?
Pratik A. Shah: Well, Your Honor, I agree with you Congress could have written this provision in a different way and more clearly.
But I think it's helpful--
Justice Elena Kagan: I'm saying something more than that.
Pratik A. Shah: --Sure.
Justice Elena Kagan: It could not have written it in a worse way.
Pratik A. Shah: Well, I would disagree with that.
But let me -- let me take a step back here on sort of the landscape in which subsection (e) was enacted.
Both sides agree that without subsection (e), covered medical personnel would have faced the risk of personal liability for medical battery claims.
Both sides also agree that subsection (e) was enacted to obviate that risk and in fact successfully does so under either side's construction.
Everyone agrees on that.
The dispute here is whether Congress accomplished that objective by, A, assuming the existence of an available tort remedy for purposes of the Gonzalez Act's conferral of immunity, as the text of the provision suggests, or instead whether it takes the substantial further step of actually amending the FTCA, which is a separate -- an entirely separate statute and thereby provides a remedy against the United States.
The latter construction I don't think is unmistakably correct, it's not unavoidable and -- and because of that, the unequivocal waiver requirement favors the government--
Justice Stephen G. Breyer: And you're -- you're -- I'm picking up from -- I find Justice Scalia's hypothetical interpretations of legislative history very useful.
So the -- the--
Justice Antonin Scalia: Thank you.
Thank you, dear colleague.
I appreciate that.
Justice Stephen G. Breyer: The -- the thing where we are in this -- we have a -- we have a statute, 1089 basically, and it says you can sue the government for the tort of an employee.
I'm oversimplifying, I'm oversimplifying.
And we should interpret that narrowly, okay?
We should interpret that absolutely has to be definite, and it is pretty definite.
Now what we have is an exception to that.
And the exception is an exception for battery, but not battery.
Can't sue the United States for battery.
And we're supposed to interpret that, I guess, as broadly as possible.
If you have a plausible argument that it could be broader, you get it, as long as it's plausible.
Then what we have, because after all, after these two things, you can still sue the person who hit you over the head.
You can go sue him in a State court, can't you?
Now, oh, now we bring a new Act there.
And this new Act says, We are going to have a little exception to the exception.
And we are supposed to interpret that one, I guess, as narrowly as possible.
So now, what we are -- because that's an exception to something which should be interpreted as broadly as possible which is an exception to something that should be interpreted as narrowly as possible.
So I think I get it like Costello used to, I don't know what I'm talking about.
There are a lot of words in these things.
And -- and so given all these words and -- this is where the Chief Justice started -- I mean, can't we at least look at legislative history to try to figure out what Congress was doing by the time we get to the exception to the exception to the exception?
Pratik A. Shah: --No -- no, Your Honor.
This Court has made it quite clear you cannot look at the legislative history.
And the fact that if you find this confusing--
Justice Stephen G. Breyer: Yes.
Pratik A. Shah: --Justice Breyer, if you find it's not--
Justice Stephen G. Breyer: Well, then you win as long as I find it confusing.
Pratik A. Shah: --unequivocally clear, we win, and you don't look to the legislative history for clarity.
That's the point of what--
Justice Stephen G. Breyer: Well, I don't find it all that confusing.
What it says is that this battery exception, which is in (h), is not supposed to apply when we look at the military doctors.
That's what it says.
And you say, Ah, but it says for purposes of this section.
I look at for purposes of this section and the purposes of this section, the very first whole sentence has to do with 1089.
It has to do with the scope, it has to do with the general waiver.
Pratik A. Shah: --Well, the for purposes of this section language I think is the key phrase and this section refers to the Gonzalez Act.
What the Gonzalez Act primarily does, what sections (a) l through (c) are all about, are about conferring personal immunity.
Justice Antonin Scalia: I don't think those are the key words.
I think the key words are shall not apply.
Shall not apply.
It isn't shall be deemed inapplicable.
Pratik A. Shah: Your Honor, I think when we are reading it--
Justice Antonin Scalia: It is not a hypothetical.
"they shall not apply to any cause of action. "
Pratik A. Shah: --I think when we are reading it against the canon, the sovereign immunity canon, I think we would expect Congress to speak more clearly.
And Congress gave us two examples of how it spoke more clearly in this very context.
One is in 1974, the sole -- the only time it amended Section 2680(h), it amended it within the provision itself.
That is, it amended the language of 2680(h) to add a law enforcement proviso that said, This exception applies except with respect to law enforcement in certain circumstances.
Justice Stephen G. Breyer: Why?
Why would they have wanted to do that?
That is to say, Look, if you cut the exception to the exception to the exception, the presumption, da, da, da, out of it, what we've got on your interpretation is that a person who's hurt by a battery committed by a government official, given your interpretation, has no remedy at all.
I mean, previously he could have at least sued in state court.
Now what you're saying is Congress tried to do with this language is say, Hey, you can't sue in state court, and by the way, when you try to sue the Federal Government, we are not going to give you your suit, either.
Why do that?
Pratik A. Shah: Your Honor, I don't think that's true.
I think before -- before the Gonzalez Act came along, there was a split in the circuit.
That's why the Gonzalez Act came along.
There were circuits that did not allow a claim to proceed personally against the physician.
There were circuits that recognized absolute immunity against a personal suit even while it was undisputed that battery claim could not proceed against the government.
That -- and what Congress said, if you want to look at legislative history, what the Senate Report says is in light of this D.C. circuit decision that went the other way, Congress enacted the Gonzalez Act.
Because it was primarily concerned about conferring personal immunity.
Every time the Senate Report talks about the purpose of the bill -- it's on page 1, heading: Purpose of the Bill -- it says conferring personal immunity.
Nothing about expanding the Government's tort liability.
Justice Ruth Bader Ginsburg: Mr. Shah, this is not always the Government's position.
In fact, in a brief to this Court in the Smith case, the Government took the position that Mr. Feldman is presenting to us.
What occurred to turn on the light for the Government to see that it was wrong in the Smith case and come up with this -- the interpretation you are now advancing?
Pratik A. Shah: Sure, Justice Ginsburg.
Well, the first thing I would say is that Section 1089(e) was not directly at issue in Smith and the issue had really been litigated quite sparsely both before and after Smith.
Once this case presented itself, the government revisited its position.
I think there were two--
Justice Elena Kagan: But this is not a side issue, Mr. Shah.
In fact, you used your understanding of 1089(e) as an argument to produce the result this Court reached in Smith.
So it was -- it was not a very large issue, but it was -- it was an argument.
You said, you know, we should reach the results that you wanted in Smith because 1089(e) would continue to have this effect.
Pratik A. Shah: --Well, Your Honor, I don't agree with that characterization.
The Government's argument would have been identical with or without 1089(e).
But I don't want to quibble about--
Justice Elena Kagan: It was a supportive argument.
I am not saying that it was the but-for argument, but it was clearly a supportive argument in your brief.
Pratik A. Shah: --Your Honor, if you want to read it that way, I think that's fine.
Justice Antonin Scalia: Why else was it there?
Just for fun?
Pratik A. Shah: --No, I agree.
Justice Antonin Scalia: It was obviously there to support your position.
Now, your position would have been the same, that's true.
Your position would have been identical, but the only purpose of that argument was to support that position.
Pratik A. Shah: Your Honor, I agree--
Chief Justice John G. Roberts: And that was successful.
The Court relied on that argument several times in its opinion.
Pratik A. Shah: --I don't believe so, Your Honor.
I don't believe the Court--
Chief Justice John G. Roberts: We certainly -- we certainly cited Smith.
Pratik A. Shah: --Yes, but the Court did not interpret 1089(e).
I think Smith -- what Smith hopefully said, Your Honor -- and this is one of the reasons why the Government revisited its position -- what the Court said in the Smith decision -- you don't have to take my word of what the legislative history says.
What the Court in Smith itself said is that the sole purpose of the Gonzalez Act -- not the primary purpose, not a purpose, not a chief purpose -- the sole purpose of the Gonzalez Act -- and it's talking about the Gonzalez Act as a whole -- was to confer personal immunity and not to create malpractice rights in favor of plaintiffs.
What Justice Ginsburg--
Chief Justice John G. Roberts: Your friend -- your friend says that in Smith -- I'm sorry for the confusion -- the Court addressed your argument on the meaning of the Gonzalez Act several times.
Pratik A. Shah: --Your Honor, it did not address 1089(e) at all, and I think that's plain as day from the opinion.
What the Court said in Smith is that the purpose of the Gonzalez Act, the sole purpose of the Gonzalez Act is to confer personal immunity, and what it also said is the Gonzalez Act does not create malpractice rights in favor of plaintiff.
That was one of the things that the Government looked at in reformulating its position and adopting its current position, was the decision in Smith, which came after our brief.
The other thing we looked at--
Justice Anthony Kennedy: Well, you did say in the reply brief that the point of the Gonzalez Act, it says,
"would enable plaintiffs to pursue those claims against the United States. "
Pratik A. Shah: --You are correct.
Justice Anthony Kennedy: I know you would have been disappointed if we didn't ask you about this.
Pratik A. Shah: Yes, you are correct.
We said it.
This is a change of position.
We revisited it.
There were a couple things we looked at in coming to our--
Justice Anthony Kennedy: And I -- and Justice Kagan indicated, this wasn't just an aside.
This was rather a central theory for your interpretation of the Act; maybe not the only theory but a central theory.
Pratik A. Shah: --Again, I -- I disagree fundamentally with that characterization.
It's two sentences in our brief.
It's at back-end of the brief.
It was not fundamental to the position in Smith.
The Court did not rely on it at all in Smith.
But even if all that were true, I think the important thing is why we changed our position.
The one is, the first and foremost is the statements in the Court's decision in Smith itself which obviously--
Justice Antonin Scalia: I don't find that inconsistent with the position argued.
You are talking about the statement that the sole purpose was -- was to--
Pratik A. Shah: --The two statements, the sole purpose of the Gonzalez Act is to confer immunity, not--
Justice Antonin Scalia: --I don't think it is the sole purpose even if you accept your friend's interpretation.
Pratik A. Shah: --But, no--
Justice Antonin Scalia: No, no, the sole purpose is to assure immunity to these doctors.
Now, in assuring immunity to these doctors, we are not going to leave these people without any remedy, and so we allowed them a remedy against the United States.
That's subsidiary to the sole purpose of the Act.
Sure, the sole purpose is to -- is to -- is to help these doctors.
But in order to do it and be fair at the same time, you have to allow suit against the United States.
I think you could still say the sole purpose was to help the doctors.
Pratik A. Shah: --Well, Your Honor, I would disagree with that.
The other side's brief says all along the sole purpose of this Act was not just to confer personal immunity, but it had a dual purpose.
The dual purpose was to confer personal immunity, and this is time and time again in the other side's brief, to confer personal immunity and also to provide adequate remedies to tort plaintiffs.
That was not, we submit, a purpose, let alone a primary purpose--
Justice Ruth Bader Ginsburg: Why would -- why would Congress, I mean, the Veterans Administration Act came after the four or five others and Congress thought it was patterning that act after the Gonzalez Act.
Why would Congress want to provide this battery remedy if a Veterans Administration medical person messed up but not if it was an armed service doctor?
Pratik A. Shah: --Of course, Congress doesn't say.
I think there are two potential reasons, Justice Ginsburg.
One might be the, as this Court has recognized, the special solicitude that Congress pays veterans, and it may have wanted to open up remedies to veterans that were unavailable to others.
I think the second potential reason is the defense side reasons.
The defendants in Veterans Act cases are civilian Veterans Administration employees.
In a Gonzalez Act case, by and large the defendants are going to be active military personnel.
Congress is often hesitant to create -- expand judicial remedies against active military personnel because of the risk it poses to interfering with military function and order.
So I think those are two reasons why Congress may have decided to change course in the Veterans Act in 1988.
After it had four provisions that said exactly the same thing, using the four purposes of this Act provision, it changed it and it must have changed it for a reason.
Two potential reasons are to change the result, which of course under which the government would win; or, because it think -- it thought it needed to speak more clearly in order to waive sovereign immunity, and under the presumption against sovereign immunity waivers, the government would also prevail.
Justice Elena Kagan: Mr. Shah, your basic theory of the case, which is that in order to make absolutely certain that everyone gets the benefit of the intentional tort exception, both the government and individual doctors, in order to make that absolutely clear, Congress writes a provision saying that the intentional tort exception shall not apply.
Now -- I mean, the position, I have to say, seems to refute itself.
If Congress wanted to make absolutely clear that the intentional tort exception would apply, it wouldn't have written a provision saying that it doesn't apply.
Pratik A. Shah: Well, the provision that you describe, Justice Kagan, is not this provision.
It's the 1988 Veterans Act amendment, which says the intentional tort exception shall not apply.
This provision says, for purposes of this section, that is, for purposes of the Gonzalez Act's conferral of immunity in subsection (a), that the intentional tort exception shall not apply.
Now, sometimes when Congress uses the four purposes of this section's formulation, sometimes it uses words like assume that or consider that, as it -- as cited in the other side's brief in footnote 4 on page 18.
However, other times when it uses for purposes of this section, even though it intends somewhat of a counterfactual inquiry, it eliminates those words.
In Title 10 itself, section 10 USC 335 says for purposes of this section.
The exact language is:
"For purposes of this chapter, the term State includes Guam and the Virgin Islands. "
Now, there's no dispute that Congress was not trying to add Guam and the Virgin Islands as the 51st and 52nd States of the Union.
What it meant is, when applying the provisions of this section treat Guam and Virgin Islands as if they are States.
Justice Stephen G. Breyer: Would you -- are you finished there?
Pratik A. Shah: --Yes, sir.
Justice Stephen G. Breyer: Would you go back for a minute and think before this Act was passed, the Gonzalez Act, and think of the millions of government employees, and they're in different parts of the country, and some of them commit batteries.
Now, you told me before that where an injured person, a plaintiff, sues a government employee and they sue under State tort law and they say, this government employee committed a battery, okay, in the course of duty, you say there was an immunity there.
Where did the immunity come from?
Pratik A. Shah: It was -- it was a common law absolute immunity.
Justice Stephen G. Breyer: From what?
Pratik A. Shah: One case is the Martinez--
Justice Stephen G. Breyer: I mean, what was the theory of it?
I mean, here it's just -- it's a person, he's at work, he does happen to work for the Federal government instead of working for someone else--
Pratik A. Shah: --Sure.
Justice Stephen G. Breyer: --and everybody else, you have to respond, and if liable, you'd have to pay damages for the battery.
Where did the immunity come from--
Pratik A. Shah: The theory was--
Justice Stephen G. Breyer: --if the employee did it?
Pratik A. Shah: --The theory behind the individual immunity was the same, essentially the same theory behind the Westfall Act immunity that this Court rejected in the Westfall Act decision.
So up until Westfall there was an argument that there was absolute immunity, that -- that the individual government employees had absolute immunity.
Justice Stephen G. Breyer: Why?
Pratik A. Shah: It was a common law immunity that -- it was an offshoot of the sovereign immunity, and it conferred it on the individual employee.
This Court of course in Westfall rejected that notion and said, you know, that immunity doesn't apply unless you are talking about both being in the scope of employment and that apply -- that involve discretionary policy decisions at a high enough level.
The last point I would make, Your Honor, is, even if you believed -- and I think you do -- that the texts were more naturally read to favor Petitioner, that is not enough.
And I think you can look at this Court's decision in Nordic Village.
The statutory provision in that case made certain Bankruptcy Court determinations binding on the government notwithstanding any assertion of sovereign immunity.
The relevant language is reproduced on footnote 10 on page 41 of our brief.
"notwithstanding any assertion of sovereign immunity. "
sounds awfully like a waiver of sovereign immunity.
It seems pretty explicit.
But what this Court said in applying the unequivocal waiver requirement in finding that there was no waiver of sovereign immunity despite that very explicit language, was that the statute nonetheless performed a significant function.
Here, the same is true.
Section 1089(e), though not authorizing monetary relief, still undisputedly performs a function here.
It performs a function of securing the personal immunity conferred by section 1089(a), that is, for purposes of the Gonzalez Act, the conferral of immunity under section 1089(a).
Just as in Nordic Village, that is enough to construe the statute against a waiver of sovereign immunity.
Chief Justice John G. Roberts: So you want us to decide the case with the unequivocal question before us, in other words deciding whether that benefit to the government applies in this type of case.
Pratik A. Shah: Yes.
Chief Justice John G. Roberts: It seems to me that you are really upping the ante here, and it may well -- I have no idea why the government took the opposite position below, but that's -- that's putting a lot more at stake in this case than the particular statutory position.
Pratik A. Shah: Well, Your Honor, there are four courts that have decided -- conclusively spoken -- to my knowledge, four courts in the history that have interpreted this provision, section 1089(e).
All have come out in the government's favor.
There were two district court decisions before the Smith case.
Both came out in the government's favor.
The only two decisions I am aware of are the two decisions in this case, conclusively interpreting 1089(e), the district court and the court of appeals.
Both courts in this case relied on the unequivocal waiver requirement.
And I think that that's -- it's not a stretch at all to apply the unequivocal waiver canon here.
In fact, this case is far afield from Dolan.
It would be a substantial expansion of the narrow exception in Dolan to say that the unequivocal waiver requirement didn't apply.
There was no dispute that sovereign immunity applied the day before the Gonzalez Act was enacted.
So the only question is whether the Gonzalez Act enacts a new waiver of sovereign immunity.
That is the type of situation in which the canon applies most strongly.
And Congress did it in a separate statute.
Again, in Dolan we were interpreting provisions that everyone agreed were part and parcel of the FTCA that -- that altered the balance of sovereign immunity.
Here the question is whether it even affects or amends the FTCA in the first place, whether it means to affect the sovereign immunity balance in the first place.
That's an especially strong case in which we would want an unequivocal waiver requirement.
Justice Ruth Bader Ginsburg: Mr. Shah, does it make any sense to distinguish between a medical malpractice, negligence, and this un-consented operation, to split those two and say the government is liable for malpractice but not for this un-consented action.
Pratik A. Shah: Your Honor, I think it makes a lot of sense, and here's why.
When Congress enacted the intentional tort exception itself in 1946, one of the principal reasons it did that was because intentional tort claims are sometimes easier to allege but more difficult to disprove.
That is particularly true with respect to these sort of lack of consent claims, where you have a patient who has signed consent forms, agreed to a surgery, and says -- and the facts of this case I think are illustrative -- says right before the anesthesia kicked in,
"I said I don't want the procedure any more. "
Now, here the government was successful in winning on summary judgment dismissal of the actual medical negligence claim, that the doctor's standard of care didn't -- that the doctor's care didn't meet the standard of care.
The government won summary judgment on that because there was no evidence, no expert testimony that supported Petitioner's claim.
But his claim that I said no right before the anesthesia kicked in survived summary judgment.
And I think it was correct to survive summary judgment, but the problem is that that survived summary judgment even though the deposition testimony, as pointed out in the government's brief, everyone else in the operating room, including the doctor, said that this patient did not so object, just shows that these claims--
Justice Antonin Scalia: Mr. Shah, can I ask you why, if your interpretation is correct, subsection (e) did not read -- not for purposes of this section, but rather for purposes of subsection (a), the provisions of 2680(h) shall not apply?
Pratik A. Shah: --May I respond, Your Honor?
This section, subsection (a), (b) and (c) all work in tandem.
(D) is a settlement provision that really doesn't really have anything to do with this.
So when it says for purposes of this section, subsection (a) and this section are essentially the only operative provisions of the Act.
The only other provisions that do any work are (e) and (f), which come after, obviously, subsection (e).
So when Congress used the term for purposes of this section, I think the fair statement is it was referring to subsections (a) through (c).
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Feldman, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER
James A. Feldman: I just wanted to make a couple of quick points.
One is, the Court has not applied the clear statement -- the unequivocal statement standard at any time in the Tort Claims Act, not just when it's dealing with exceptions, but if you go back to the very early cases, the Aetna case, the Yellow Cab case, really, right after the Act was passed, you can see that the Court is saying there, no, we want to interpret this Act consistent with Congress's intent, the way it wanted it interpreted, which is with a fair reading of its words, not in one direction, not in the other.
I just also wanted to clarify in the Smith case, because of a possible misunderstanding.
The Court definitely addressed the Gonzales Act repeatedly in its opinion in the Smith case, but it didn't -- the Court did not actually address 1089(e).
The reason the Government, though, this was important to the Government, and actually, the Government's reply brief in the Smith case was, I think, a hundred percent about the Gonzales Act, was that the other side of the Gonzales Act was saying, If you construe the Westfall Act the way the Government wants, that will be an implied repeal, but the Gonzales Act will have nothing left to do.
And it was important for the Government, that's why they kept saying it, it was important for the Government to say, No, the Gonzales Act does have things to do, this is not an implied repeal.
And one of -- of the things it does is exactly what we say Section 1089(e) does.
If there are no further questions?
Chief Justice John G. Roberts: Mr. Feldman, the Court invited you to brief and argue this case as an amicus curiae, and you have ably discharged that responsibility, for which the Court is grateful.
James A. Feldman: Thank you.
Chief Justice John G. Roberts: The case is submitted.