Levin v. United States – Oral Argument – January 15, 2013

Media for Levin v. United States

Audio Transcription for Opinion Announcement – March 04, 2013 in Levin v. United States

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Case 11-1351, Levin v. United States.

Mr. Feldman?

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.

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.

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.

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.

Stephen G. Breyer:

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.

John G. Roberts, Jr.:

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.

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.

James A. Feldman:

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.

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.

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–

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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.

James A. Feldman:

I would add one other–

Anthony M. 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.

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.

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.

Sonia Sotomayor:

This exception you’re talking about is regularly applied in the lower courts?

James A. Feldman:

I beg your pardon?

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.

Antonin Scalia:

When the government removes the case, it concedes that point, doesn’t it, normally?

Antonin Scalia:

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–

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–

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.

Antonin Scalia:

Yes, yes.

James A. Feldman:

Another one would be a foreign tort, which is also another exception under the Tort Claims Act–

Antonin Scalia:

I see.

James A. Feldman:

–a discretionary function case, and there are some in the medical context.

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.

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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.

James A. Feldman:

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.

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.

Elena Kagan:

Mr. Feldman–

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.

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.

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.

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.

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.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Feldman.

Mr. Shah?

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.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

Well, but that was because at that point there was an exception to the exception of sovereign immunity.

Pratik A. Shah:

–Correct.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

The difference–

John G. Roberts, Jr.:

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–

Sonia Sotomayor:

What do you need more clear than (h) doesn’t apply?

Pratik A. Shah:

–Well, Your Honor–

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.

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–

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.

It said:

Pratik A. Shah:

“The intentional tort exception shall not apply with respect to personnel employed by the VA. “

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–

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–

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–

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.

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–

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.

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.

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–

Elena Kagan:

I’m saying something more than that.

Pratik A. Shah:

–Sure.

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.

Pratik A. Shah:

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–

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–

[Laughter]

Antonin Scalia:

Thank you.

Thank you, dear colleague.

I appreciate that.

[Laughter]

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.

Right?

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.

[Laughter]

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.

Pratik A. Shah:

This Court has made it quite clear you cannot look at the legislative history.

And the fact that if you find this confusing–

Stephen G. Breyer:

Yes.

Pratik A. Shah:

–Justice Breyer, if you find it’s not–

Stephen G. Breyer:

Well, then you win as long as I find it confusing.

[Laughter]

Pratik A. Shah:

–unequivocally clear, we win, and you don’t look to the legislative history for clarity.

That’s the point of what–

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.

Okay.

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.

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–

Antonin Scalia:

It is not a hypothetical.

It says

“they shall not apply to any cause of action. “

etc.

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.

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.

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–

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–

Elena Kagan:

It was a supportive argument.

Elena Kagan:

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.

I think–

Antonin Scalia:

Why else was it there?

Just for fun?

[Laughter]

Pratik A. Shah:

–No, I agree.

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–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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–

Anthony M. 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.

Anthony M. Kennedy:

I know you would have been disappointed if we didn’t ask you about this.

Pratik A. Shah:

Yes, you are correct.

Pratik A. Shah:

We said it.

This is a change of position.

We revisited it.

There were a couple things we looked at in coming to our–

Anthony M. 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–

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–

Antonin Scalia:

–I don’t think it is the sole purpose even if you accept your friend’s interpretation.

Pratik A. Shah:

–But, no–

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–

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.

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.

So–

Stephen G. Breyer:

Would you — are you finished there?

Pratik A. Shah:

–Yes, sir.

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.

Stephen G. Breyer:

From what?

Pratik A. Shah:

One case is the Martinez–

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.

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–

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.

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.

That language,

“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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

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–

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.

Pratik A. Shah:

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).

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Feldman, you have 4 minutes remaining.

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?

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

The case is submitted.