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Argument preview: A waiver of sovereign immunity for medical battery claims?

On relatively rare occasions, the Supreme Court will grant a petition for certiorari prepared and submitted by an individual who is not represented by an attorney.  This Term presents the highly unusual circumstance in which the Court has agreed to hear two such cases in a single year.  The first of those cases, Levin v. United States, will be argued on Tuesday.  At issue is the relationship between two federal statutes – the Federal Tort Claims Act (FTCA) and the Gonzalez Act – in the context of medical malpractice claims against the United States.  Specifically, may a civilian bring a battery claim against the United States for injuries allegedly caused by military medical personnel during the performance of their duties, or are such claims barred by sovereign immunity?


Steven Levin is a military veteran who was referred to the Ophthalmology Department of the U.S. Naval Hospital on Guam for treatment of a cataract.  A Navy physician recommended that Levin undergo a surgical procedure, and Levin provided written consent.  However, Levin’s complaint alleges that he verbally withdrew his consent just prior to the operation.  According to Levin, the physician nevertheless performed the surgery, which caused complications for which Levin requires ongoing medical treatment.

After exhausting his administrative remedies, Levin filed suit in the U.S. District Court for the District of Guam, alleging negligence and battery.  The complaint named both the United States and the physician as defendants, but the United States was substituted for the doctor as authorized by statute.  The court granted summary judgment to the government on the negligence claim but denied summary judgment on the battery claim, finding a genuine issue of material fact as to whether Levin had consented to the surgery.

Subsequently, however, the court granted the government’s motion to dismiss the battery claim for lack of subject matter jurisdiction.  The court held that the claim was barred by a provision of the FTCA, codified at 28 U.S.C. § 2680(h), known as the “intentional tort” exception.  The FTCA provides a waiver of the United States’s sovereign immunity for certain tort claims, and thus generally authorizes suits against the government for torts committed by government employees acting within the scope of their duties.  Section 2680(h), however, carves out an exception that preserves the government’s immunity against certain torts, including “[a]ny claim arising out of . . . battery.”  The district court agreed with the government that that provision precludes Levin’s battery claim.

The Ninth Circuit’s decision

Levin appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.  He argued that the immunity preserved by Section 2680(h) was waived by a later-enacted statute, the Gonzalez Act.  That law protects medical personnel in the armed forces and other specified agencies from individual malpractice liability for conduct within the scope of their employment.  It accomplishes that goal by making the FTCA’s damages remedy against the United States the exclusive means of recovery for plaintiffs alleging malpractice by covered employees.  Levin’s waiver argument was based on a specific provision of the Gonzalez Act, 10 U.S.C. § 1089(e):

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 (including clinical studies and investigations).

The Ninth Circuit “concede[d] that Levin’s reading of the Gonzalez Act is plausible,” but ultimately concluded that Section 1089(e) did not waive the government’s immunity as to battery claims.  It did so for three reasons.

First, the court believed that Levin’s interpretation conflicted with the statutory phrase “[f]or purposes of this section.”  In the court’s view, that phrase indicates that Section 1089(e) should be read “not as a waiver of sovereign immunity for battery claims brought against the United States, but as an expression of personal immunity from battery claims brought against military medical personnel.”  The court reasoned that (1) because the Gonzalez Act makes the FTCA “remedy against the United States” the exclusive remedy for malpractice claims, but (2) there is no “remedy against the United States” for battery claims (because of Section 2680(h)), a “clever tort plaintiff[]” could argue that “a battery remedy must still exist against his individual military healthcare provider.”  Under the court’s reading, Section 1089(e) forecloses such a claim by assuming, for purposes of the Gonzalez Act only, that there is an available remedy for battery against the United States.

Second, the court held that “Levin’s reading runs counter to well-established guidelines for interpreting waivers of sovereign immunity.”  Under Supreme Court precedent, a waiver of sovereign immunity must be expressed unequivocally in the statutory text.  In the court’s view, Section 1089(e) does not meet that standard but instead provides, at best, “an implied waiver.”

Third, the court relied on the Supreme Court’s decision in United States v. Smith, in which the Court held that the Westfall Act – which contains a similar “exclusive remedy” provision – immunizes individual government employees from suit “even when an FTCA exception precludes recovery against the Government.”  The court of appeals noted that Smith “recognized the harsh consequences of its interpretation,” which would bar some plaintiffs from any recovery at all, “but ruled against the tort plaintiff anyway.”

Supreme Court proceedings

Proceeding without an attorney, Levin filed a petition for certiorari, which the Supreme Court granted on September 25, 2012.  In the Supreme Court, parties who are proceeding pro se do not  normally brief and argue the case themselves; instead, the Court in this case appointed a Washington, D.C., attorney, James A. Feldman, to brief and argue the case as an amicus in support of Levin.

In his briefs on the merits, Feldman contends that the text, structure, and history of the Gonzalez Act all demonstrate that Congress intended to preserve a tort remedy for plaintiffs claiming medical battery by military employees.  He argues that the plain language of Section 1089(e) – which states that the FTCA’s intentional tort exception “shall not apply” to tort actions arising from the conduct of medical personnel – abrogates the exception for cases within the scope of the Gonzalez Act.  He argues that the Ninth Circuit’s contrary interpretation requires a “counterfactual assumption,” which requires “a court to pretend that the intentional tort exception does not apply,” even though, under the Ninth Circuit’s view, that exception would in fact apply.  Had Congress intended the statute to function that way, Feldman argues, it would have used terms such as “deemed” or “considered.”  Indeed, Feldman notes, Congress regularly uses those terms when it intends a counterfactual meaning, including in at least one other provision of the Gonzalez Act.  Feldman further contends that the broader structure and legislative history of the statute reflect Congress’s intention to preserve medical tort remedies by channeling them into two categories – suits against the government under the FTCA and suits against individual employees (who may be eligible for government indemnification or insurance).

In addition, Feldman challenges the Ninth Circuit’s decision on policy grounds, arguing that it would create confusion and arbitrary outcomes by making the availability of a consent-based malpractice claim turn on whether it is classified as negligence or battery in a given state.  The result, he argues, would be to leave victims of some of the most serious torts entirely without a remedy – an outcome that Congress could not have intended.

The government responds by invoking the principle that waivers of sovereign immunity must be unequivocally expressed.  Under that rule, it contends, Feldman’s reading “can prevail only if the sole plausible interpretation of Section 1089(e) is that it waives the government’s immunity from suit.”  Echoing the court of appeals, the government argues that Feldman cannot meet that high threshold because Section 1089(e) is best read to “call[] for acting as if a remedy against the United States were available in order 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.”

The government further argues that Feldman’s interpretation would create certain statutory anomalies.  According to the government, Feldman’s view “would permit an FTCA remedy against the United States if a claim were brought against covered medical personnel individually, but presumably not if the identical claim were instead brought against the United States under the FTCA directly.”  Additionally, the government asserts that Feldman’s construction would permit a battery claim against medical personnel covered by the Gonzalez Act, but not against medical personnel covered only by the Westfall Act (which applies to all federal employees).

Finally, the government takes issue with Feldman’s policy arguments.  As to the claim that Congress could not have intended to treat medical battery plaintiffs differently from medical negligence plaintiffs, the government argues that the rationale underlying the FTCA’s intentional tort exception – “to protect the United States from liability for certain torts that would be easy to allege but difficult to defend” – is equally relevant in the medical malpractice context.  And the government disputes that its interpretation would lead to arbitrary outcomes, arguing that the question of whether a particular tort claim sounds in battery for purposes of Section 2680(h) is a matter of federal, not state, law.


This case gives the Court an opportunity to provide guidance to lower courts on how the “clear statement” rule governing waivers of sovereign immunity should be applied in practice.  To be sure, the Court has consistently held that such waivers must be unequivocally expressed in the statutory text and that any ambiguities are to be resolved in favor of preserving the government’s immunity.  At the same time, the Court has cautioned that this rule is not so restrictive as to require Congress to use “magic words” to effect a waiver.

Here, the Court must decide how those principles apply to the construction of statutory language (“the provisions of section 2680(h) of title 28 shall not apply . . .”) that, at least at first blush, would appear to authorize claims against the government but that does not by its terms state that immunity is being waived.  The Court’s resolution of this issue will not only determine the availability of a remedy for plaintiffs like Levin, but, depending on how broadly the Court writes its opinion, could have ramifications for the application of clear statement rules in other contexts, such as federal preemption.

Recommended Citation: Kevin Amer, Argument preview: A waiver of sovereign immunity for medical battery claims?, SCOTUSblog (Jan. 11, 2013, 12:23 PM),