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Argument recap: Could Congress be any clearer in waiving the government’s immunity?

On Tuesday, January 15, the Court heard arguments in Levin v. United States, which – as discussed in our preview – presents the question whether the Gonzalez Act waived the United States’s sovereign immunity as to battery claims arising from the conduct of military medical personnel.  As the argument unfolded, it became apparent that most of the Justices would likely answer that question in the affirmative – at least if they were to treat it as an ordinary question of statutory interpretation and were not required to apply a heightened “strict construction” standard.  Thus, the government’s counsel faced the formidable task of persuading the Court not only that such a standard should apply in this case, but that the Gonzalez Act’s seemingly unambiguous waiver language does not meet it.

The argument

Arguing as an amicus in support of Levin was James Feldman, who was appointed to that position by the Court.  At the outset, he faced questioning from Justice Ginsburg on his interpretation of the relevant Gonzalez Act provision, 28 U.S.C. § 1089(e), which provides: “For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply” to medical malpractice torts.  Wouldn’t Feldman’s interpretation, she asked, effectively read the phrase “For purposes of this section” out of the statute?  Feldman said no, arguing that the language operates to limit the waiver of sovereign immunity “to just the cases that are covered by the Gonzalez Act” – that is, only to torts committed by members of the particular agencies listed in the statute.  That approach, he argued, was consistent with Congress’s practice of addressing medical battery claims “on an agency-by-agency basis.”

Picking up on that discussion, other Justices questioned whether Feldman’s interpretation can be reconciled with the Westfall Act, which provides individual immunity to all federal employees but does not authorize medical battery claims against the government.  Justices Sotomayor and Scalia asked why Congress would have wanted to provide a remedy for victims injured by medical personnel of some federal agencies but not others.  Feldman responded that Congress was focused on the specific problem of medical malpractice claims against government physicians when it enacted the Gonzalez Act.  In response to that concern, Congress created a scheme intended both to “assure adequate remedies for tort victims and to protect Federal employees.”  By contrast, Feldman argued, when Congress enacted the Westfall Act twelve years later, “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 Westfall v. Erwin, in which the Court held that the common-law doctrine of official immunity does not provide absolute immunity to government employees for torts committed within the scope of their employment.

Justice Alito then raised the issue of whether Section 1089(e) could satisfy the heightened standard required for waivers of sovereign immunity, asking Feldman if he believed the government’s position was not only wrong, but also “not a plausible interpretation.”  Feldman responded that under the Court’s precedent, the strict construction standard that generally governs in the waiver context is inapplicable when construing the scope of a Federal Tort Claims Act (FTCA) exception.  In any event, he argued, it is clear even under a strict construction standard that Congress intended to waive immunity as to these types of claims.

Next to argue was Assistant to the Solicitor General Pratik Shah on behalf of the government.  He immediately faced tough questioning from the Chief Justice on the government’s position that any waiver of sovereign immunity must be unequivocally expressed.  In the Chief Justice’s view, that rule may apply “when you are talking about a waiver of sovereign immunity in the first instance,” but this case involves a series of exceptions to the government’s baseline immunity.  The government does not “keep getting the benefit” of the strict construction rule “when you are talking about . . . an exception to an exception to an exception.”  Shah responded that the heightened standard applies in this case because, unlike exceptions enacted contemporaneously with the FTCA, Section 1089(e) is part of an entirely separate statute: “[O]n the day before the Gonzalez Act was enacted, there was no question that sovereign immunity barred the type of claim at issue.”

Shah’s challenge became even more difficult as several Justices expressed the view that Section 1089(e) clearly waived the government’s immunity.  “I don’t know how much clearer Congress has to get,” Justice Sotomayor said, while Justice Breyer added, “I don’t find it all that confusing.  What it says is that this battery exception . . . is not supposed to apply when we look at the military doctors.”   Justice Scalia agreed: “I think the key words are ‘shall not apply.’  Shall not apply.  It isn’t [‘]shall be deemed inapplicable.[’]”  Justice Kagan went further, telling Shah that “Congress could not have written [Section 1089(e)] in a worse way” if the government’s interpretation were correct, because the statute as written “rais[es] the inference that in fact the government is liable.”

In response, Shah again invoked the strict construction standard: “[E]ven if you believed – and I think you do – that the texts were more naturally read to favor Petitioner, that is not enough.”  The Chief Justice seemed concerned that the government’s position would require the Court to decide the broader question of “whether that benefit to the government applies in this type of case.”  In asking the Court to reach that issue, he said, the government was “really upping the ante” and was “putting a lot more at stake in this case” than the narrow statutory question presented.


It appears likely that the Court will reverse the Ninth Circuit’s decision and hold that Section 1089(e) waives the government’s sovereign immunity as to claims like Levin’s.  It is unclear, however, how the Court will handle the question regarding the applicable standard of review – that is, whether the strict construction rule advocated by the government should apply in this context.  Given that many of the Justices seem to believe that Section 1089(e) could hardly be clearer, the Court may well decide that it need not reach that issue in this case.  By holding that Section 1089(e) is sufficiently clear to meet either standard, the Court could leave the more difficult question for another day.

Recommended Citation: Kevin Amer, Argument recap: Could Congress be any clearer in waiving the government’s immunity?, SCOTUSblog (Jan. 20, 2013, 11:13 AM),