Sentenza

SUPREME COURT OF THE UNITED STATES LEVIN v. UNITED STATES ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SUPREME COURT OF THE UNITED STATES
LEVIN v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 11–1351. Argued January 15, 2013—Decided March 4, 2013
The Federal Tort Claims Act (FTCA) waives the Government's sovereign immunity from tort suits, 28 U. S. C. §1346(b)(1), but exceptsfrom the waiver certain intentional torts, including battery, §2680(h). The FTCA, as originally enacted, afforded tort victims a remedyagainst the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. 10 U. S. C. §1089(a).The Act also provides that, “[f]or purposes of this section,” the 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.” §1089(e). Congress subsequentlyenacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA's remedy against the United States exclusive for torts committed by federal employees acting within the scope of theiremployment, 28 U. S. C. §2679(b)(1). Under the Liability Reform Act,federal employees are shielded without regard to agency affiliation orline of work. Petitioner Levin suffered injuries as a result of cataract surgeryperformed at a U. S. Naval Hospital. He filed suit, naming the UnitedStates and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeonhad acted within the scope of his employment, the District Court re2
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Syllabus
leased him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA's intentional tort exception. Levin countered that the Gonzalez Act, in particular, §1089(e), renders that exception inapplicablewhen a plaintiff alleges medical battery by a military physician. The District Court granted the Government's motion to dismiss. Affirming, the Ninth Circuit concluded that §1089(e) served only to buttress the immunity from personal liability granted military medical personnel in §1089(a), and did not negate the FTCA's intentional tort exception.
Held: The Gonzalez Act direction in §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 actingwithin the scope of his employment. Pp. 8–15.
(a)
To determine whether the Government's immunity is waived for batteries, the Court looks to §1089(e)'s language, “giving the ‘words used' their ‘ordinary meaning.' ” Moskal v. United States, 498 U. S. 103, 108. Levin claims that the operative clause of §1089(e), which provides that the FTCA's intentional tort exception “shall not apply”to medical malpractice claims, is qualified by the provision's introductory clause “[f]or purposes of this section,” which confines the operative clause to claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. The Government, in contrast, argues that §1089(e)'s introductory clause instructs courts to pretend, “[f]or purposes of” the Gonzalez Act, that §2680(h) does not secure the Government against liabilityfor intentional torts, including battery, even though §2680(h) does provide that shelter. The choice between the parties' dueling constructions is not a difficult one. Section 1089(e)'s operative clausestates, in no uncertain terms, that the FTCA's intentional tort exception, §2680(h), “shall not apply,” and §1089(e)'s introductory clause confines the abrogation of §2680(h) to medical personnel employed bythe agencies listed in the Gonzalez Act. Had Congress wanted toadopt the Government's counterfactual interpretation, it could haveused more precise language, as it did in §1089(c), a subsection adjacent to §1089(e). Pp. 8–11.
(b)
Under the Government's interpretation of §1089(e), the Liability Reform Act would displace much of the Gonzalez Act. That reading conflicts with the view the Government stated in United States v. Smith, 499 U. S. 160. There, the question was whether a person injured abroad due to a military doctor's negligence may seek compensation from the doctor in a U. S. court, for the FTCA gave them no recourse against the Government on a “claim arising in a foreign country,” 28 U. S. C. §2680(k). In arguing that such persons also
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lacked recourse to a suit against the doctor, the Government contended that the Liability Reform Act made “[t]he remedy against theUnited States” under the FTCA “exclusive.” §2679(b)(1). This interpretation, the Government argued, would not override the GonzalezAct, which would continue to serve two important functions: Title 10
U. S. C. §1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law might govern; andthe Gonzalez Act would allow an FTCA suit against the United States if the doctor performed a procedure to which the plaintiff did not consent. Adopting the Government's construction, the Court heldthat §2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when the FTCA provides no remedy against the United States. 499
U. S., at 166. Under the Government's current reading of §1089(e),the Liability Reform Act overrides the Gonzalez Act except in the atypical circumstances in which indemnification of the doctor under§1089(f)(1) remains possible, while under Levin's reading, the Gonzalez Act does just what the Government said it did in Smith. Pp. 11–
13.
(c) The Government attempts to inject ambiguity into §1089(e) byclaiming that 38 U. S. C. §7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs, expresses Congress' intent to abrogate §2680(h) with the unmistakable clarity the Gonzalez Act lacks. But this Court sees nothing dispositively different about the wording of the two provisions, and neither did the Government when it argued in the District Court that§1089(e) and §7316(f) are functionally indistinguishable. Pp. 13–14.
663 F. 3d 1059, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, which was unanimous except insofar as SCALIA, J., did not join footnotes 6 and 7.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 11–1351
STEVEN ALAN LEVIN, PETITIONER v.
UNITED STATES ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 4, 2013]
JUSTICE GINSBURG delivered the opinion of the Court.*
Petitioner Steven Alan Levin, a veteran, suffered injuries as a result of cataract surgery performed at the U. S.Naval Hospital in Guam. He asserts that, just prior to theoperation, concern about equipment in the operating roomled him to withdraw his consent to the surgery. Seeking compensation from the United States, Levin sued underthe Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346(b), 2671–2680, which waives the Government's sovereignimmunity from tort suits, but excepts from the waivercertain intentional torts, including battery, §2680(h).Levin relied on the Gonzalez Act, 10 U. S. C. §1089, whichmakes the remedy against the United States under theFTCA preclusive of any suit against armed forces medical personnel, §1089(a). In the provision at issue in this case, §1089(e), the Gonzalez Act declares that, “[f]or purposes of ” the Act, the intentional tort exception to the FTCA“shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.” ——————
* JUSTICE SCALIA joins this opinion, except as to footnotes 6 and 7.
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The Government reads §1089(e) simply to shore up §1089(a)'s immunization of medical personnel against tortliability. Levin, in contrast, reads §1089(e) to establish his right to bring a claim of medical battery against theUnited States under the FTCA without encountering theintentional tort exception. The U. S. District Court for the District of Guam, affirmed by the Ninth Circuit, dismissedLevin'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 toremove 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, theFTCA 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 theGovernment's immunity from suit on “[a]ny claim arisingout of . . . battery.” We have referred to §2680(h) as the “intentional tort exception.” E.g., United States v. Shearer, 473 U. S. 52, 54 (1985).1
—————— 1This shorthand description is not entirely accurate. Section 2680(h)
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Originally, the FTCA afforded tort victims a remedyagainst the United States, but did not preclude lawsuitsagainst 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-specificstatutes designed to shield precisely drawn classes of employees from the threat of personal liability. United States v. Smith, 499 U. S. 160, 170 (1991). One such measure was the Medical Malpractice Immunity Act, 90Stat. 1985, 10 U. S. C. §1089, passed in 1976 and com- monly known as the Gonzalez Act.2 That Act, controlling in —————— does not remove from the FTCA's waiver all intentional torts, e.g., conversion and trespass, and it encompasses certain torts, e.g., misrepresentation, that may arise out of negligent conduct. See United States
v. Neustadt, 366 U. S. 696, 702 (1961).
2The agency-specific statutes were patterned on the Federal DriversAct, 75 Stat. 539, 28 U. S. C. §§2679(b)–(e) (1970 ed.), passed in 1961and amended in 1988 by Pub. L. 100–694, §5(b), 102 Stat. 4564. The Drivers Act made an action against the United States under the FTCA the “exclusive” remedy for “personal injury . . . resulting from the operation by any employee of the Government of any motor vehiclewhile acting within the scope of his office or employment.” §2679(b). Statutes conferring immunity on medical personnel of the Department of Veterans Affairs, 79 Stat. 1156, 38 U. S. C. §4116 (1970 ed.), nowcodified at 38 U. S. C. §7316 (2006 ed.), and the Public Health Service, 84 Stat. 1870, 42 U. S. C. §233 (2006 ed.), followed in 1965 and 1970,respectively. In 1976, in addition to the Gonzalez Act, Congress enacted a statute immunizing medical personnel of the National Aeronautics and Space Administration, 90 Stat. 1988, 42 U. S. C. §2458a (1982 ed.), now codified at 51 U. S. C. §20137 (2006 ed., Supp. IV). And in 1980, it enacted a personal immunity statute covering medical personnel of the Department of State, 94 Stat. 2155, 22 U. S. C. §2702 (2006 ed.).
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this case, makes claims against the United States under the FTCA the “exclusive” remedy for injuries resulting from malpractice committed by medical personnel of thearmed forces and other specified agencies. 10 U. S. C. §1089(a).3
A subsection of the Gonzalez Act key to the issue before us, §1089(e), refers to the FTCA's intentional tort exception. It provides: “For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act oromission in the performance of medical, dental, or related health care functions.” Section 1089(e) was patterned on aprovision in a statute, enacted six years earlier, that conferred immunity on medical personnel of the PublicHealth Service. See 84 Stat. 1870, 42 U. S. C. §233(e) (1976 ed.) (“For purposes of this section, the provisions of [§2680(h)] shall not apply to assault or battery arising out of negligence in the performance of medical . . . func——————
3In 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, theDepartment of Defense, the Armed Forces Retirement Home, or the Central Intelligence Agency in the performance of medical, dental, orrelated 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 supportingpersonnel (or the estate of such person) whose act or omission gave riseto such action or proceeding. This subsection shall also apply if thephysician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) involved is serving under apersonal services contract entered into under section 1091 of this title.”
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tions.”). Targeted immunity statutes enacted around thesame 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 theAdministration.”); 51 U. S. C. §20137(e) (“For purposes of this section, the provisions of [§2680(h)] shall not apply to any cause of action arising out of a negligent or wrong- ful act or omission in the performance of medical . . . functions.”).
In 1988, departing from the above-described agencyspecific approach, Congress enacted comprehensive legislation titled the Federal Employees Liability Reform andTort Compensation Act (Liability Reform Act), 102 Stat. 4563, and often called the Westfall Act. This embracive measure makes the remedy against the United States under the FTCA exclusive for torts committed by federal employees acting within the scope of their employment, 28
U. S. C. §2679(b)(1). Shielding all federal employees from personal liability without regard to agency affiliation or line of work, the personal immunity provision of the Liability Reform Act tracks the text of §1089(a). The comprehensive enactment, however, did not repeal the Gonzalez Act, Smith, 499 U. S., at 172, or, presumably, any of theother 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
6 LEVIN v. UNITED STATES
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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 ofan artificial replacement lens. Levin signed forms consenting to the operation, which took place on March 12,2003. Shortly before the surgery began, Levin alleges, heorally withdrew his consent twice, but Dr. Bishop con-ducted the operation nevertheless. Due to complications occurring while the surgery was underway, Levin developedcorneal edema, a condition that left him with diminished eyesight, discomfort, problems with glare and depth-offield vision, and in need of ongoing medical treatment.
Levin sought compensation for the untoward results ofthe 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'srepresentation that Dr. Bishop was acting within thescope 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 testimonyin support of his negligence allegations, the court grantedthe Government's motion for summary judgment on thatclaim.
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Next, the Government moved to dismiss the batteryclaim. The District Court no longer had jurisdiction overLevin's case, the Government argued, because the FTCA'sintentional tort exception, §2680(h), disallows suits against the United States for battery. Levin countered that the Gonzalez Act, in particular, §1089(e), renders theintentional 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-matterjurisdiction. 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 theNinth Circuit, §1089(e) had a limited office, serving only tobuttress the immunity from personal liability grantedmilitary medical personnel in §1089(a). “[C]lever tort plaintiffs,” the court conjectured, might argue in futurecases 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 theGonzalez 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
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disposition.4
We granted certiorari, 567 U. S. ___ (2012), recognizing that Courts of Appeals have divided on the questionwhether the controlling provision of the Gonzalez Act, §1089(e), authorizes battery claims against the UnitedStates 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 suitsalleging malpractice by military medical personnel); and Lojuk v. Quandt, 706 F. 2d 1456, 1463 (CA7 1983) (same). See also Franklin v. United States, 992 F. 2d 1492, 1501 (CA10 1993) (38 U. S. C. §7316(f), concerning Department of Veterans Affairs' medical personnel, includes an “es- sentially identical counterpart” to §1089(e), which sim- ilarly “nullif[ies] §2680(h) and thereby expand[s] the injured party's remedy against the government under the FTCA”).5
II A We note at the outset that medical malpractice claims —————— 4In accord with the Ninth Circuit, the Government maintains that sovereign immunity is never waived absent unequivocal congressionalstatement 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.
5We appointed James A. Feldman to brief and argue the position ofthe petitioner as amicus curiae. 568 U. S. ___ (2012). Amicus Feldman has ably discharged his assigned responsibilities and the Court thankshim for his well stated arguments.
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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 theymay 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), hastwo components: an introductory clause and an operativeclause. 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 intentionaltort exception, “shall not apply to any cause of action arising out of . . . negligent or wrongful” conduct taken “inthe performance of medical, dental or related health carefunctions.” §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 armedforces 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 notapply” 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 thequalification: It confines the operative clause to claims covered by “this section,” i.e., claims alleging malpracticeby personnel in the armed forces and the other agenciesspecified in the Gonzalez Act. Because Levin's claim concerning Dr. Bishop's alleged battery fits that category,
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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 theGovernment against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. Congress included this counterfactual instruction inthe Gonzalez Act, the Government successfully argued inthe Ninth Circuit, “to guard against the negative inferencethat, 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 Governmentasserts, §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 notapply,” and §1089(e)'s introductory clause confines theabrogation of §2680(h) to medical personnel employed bythe agencies listed in the Gonzalez Act.6
The Government invites us to read the phrase “section2680(h) . . . shall not apply,” to convey “§2680(h) does apply,” a reading most unnatural. Had Congress wantedto guard against any inference that individual employeesmay be liable, despite §1089(a)'s statement that the ——————
6Corroborating this plain reading, the Senate Report on the Gonzalez Act explains that §1089(e) was enacted to “nullify a provision of theFederal Tort Claims Act which would otherwise exclude any action for assault and battery” from FTCA coverage. S. Rep. No. 94–1264, p. 9 (1976).
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remedy against the United States is exclusive, see supra, at 4,
n.
3, Congress might have stated, “subsection (a) applieseven 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 canesugar, 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 section402(b)(1) of this title, a divorced wife shall be deemed not to be married throughout the month in which she becomesdivorced.”).
We note, furthermore, that in 10 U. S. C. §1089(c), asubsection 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 tortaction 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 inanother section of the same Act, it is generally presumed that Congress acts intentionally and purposely in thedisparate inclusion or exclusion.” (internal quotation marks omitted)).
B Were we to accept the Government's interpretation of
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§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 thedoctor 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 anagency to indemnify military doctors “assigned to a foreigncountry” 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 individualmilitary 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 aprocedure 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
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immunity as to medical malpractice claims sounding in intentional tort, 10 U. S. C. §1089(e), will enable plaintiffsto 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 LiabilityReform 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 theGovernment'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 doesindeed override the Gonzalez Act save in two slim applications: If a military doctor employed by the United States issued in a foreign court, or is detailed to a non-federalinstitution, 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 batteriescommitted by military personnel within the scope of their employment, thereby permitting civil actions against theUnited States by persons situated as Levin is.
C Endeavoring to inject ambiguity into §1089(e) notwith14
LEVIN v. UNITED STATES
Opinion of the Court
standing its direction that “section 2680(h) . . . shall not apply,” the Government refers to 38 U. S. C. §7316, aparallel statute that confers immunity on medical personnel of the Department of Veterans Affairs (VA). As enacted in 1965, §7316's statutory predecessor had no provisionakin to §1089(e). See 79 Stat. 1156, 38 U. S. C. §4116 (1970 ed.). Congress added such a provision in 1988, but itwas 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 title28 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 ortreatment.” 38 U. S. C. §7316(f). This phrasing, whichrefers 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 Governmentacknowledges. But §7316(f) does so, the Governmentadds, with the unmistakable clarity the Gonzalez Act lacks.
We see nothing dispositively different about the wording of the two provisions.7 Neither did the Government earlier on. In the District Court, the Government arguedthat §1089(e) and §7316(f) are functionally indistinguishable. See Record 366 (“§1089(e) has language that isidentical to . . . §7316(f)”); id., at 435 (“originally [Levin] talked about the doctor being under the VA; in fact, thedoctor 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 agreewith the Government's earlier view, and not with the freshly minted revision.
—————— 7See S. Rep. No. 100–215, p. 171 (1987) (§7316(f) was “patterned after” §1089(e)).
Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court
* * * For the reasons stated, we hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA's intentional tort exception and therefore permits Levin's suit against the United States alleging medical battery bya 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 proceedingsconsistent with this opinion.
It is so ordered.