Levin v. United States

PETITIONER:Steven A. Levin
RESPONDENT:United States, et al.
LOCATION: United States Naval Hospital Guam

DOCKET NO.: 11-1351
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 568 US (2013)
GRANTED: Sep 25, 2012
ARGUED: Jan 15, 2013
DECIDED: Mar 04, 2013

James A. Feldman – Court-appointed amicus curiae supporting the petitioner
Pratik A. Shah – Assistant to the Solicitor General, Department of Justice, for the respondent

Facts of the case

On March 12, 2003, Steven Levin was scheduled to undergo cataract surgery performed by Lieutenant Commander Frank Bishop, M.D., a United States Navy surgeon in Guam. Levin previously gave his written consent to the procedure but claims that he attempted to orally withdraw it prior to the surgery. He suffered complications from the surgery and faces continuing treatment with unclear likelihood of success. Levin sued Dr. Bishop for battery and negligent medical malpractice. The United States substituted itself for Dr. Bishop and filed a motion for summary judgment. The district court granted summary judgment for the negligent medical malpractice claim, not the battery claim. The United States then filed for dismissal of the battery claim and alleged that the Federal Tort Claims Act preserved sovereign immunity against battery claims. The district court dismissed the claim. The United States Court of Appeals for the Ninth Circuit affirmed.


Does the Federal Tort Claims Act prevent the United States from being prosecuted for battery caused by military medical personnel acting within the scope of employment?

Media for Levin v. United States

Audio Transcription for Oral Argument – January 15, 2013 in Levin v. United States

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

John G. Roberts, Jr.:

Justice Ginsburg has our opinion this morning in case 11-1351, Levin versus United States.

Ruth Bader Ginsburg:

This case involves the interaction between two federal statutes, the Federal Tort Claims Act and the Gonzalez Act.

The Tort Claims Act waives the sovereign immunity of the United States from tort suits subject to several exceptions.

The exception key to this case is known as the intentional tort exception.

It preserves the Government’s immunity from claims arising out of among other things, assaults or batteries committed by federal employees.

The petitioner, Steven Alan Levin was injured during a medical operation performed by a surgeon serving in the U.S. Navy.

Seeking monetary redress, Levin filed suit under the Tort Claims Act naming the United States and the surgeon as defendants.

He alleged that the surgeon committed a battery by performing the operation despite Levin’s pre-surgery withdrawal of consent.

The Government moved to release the surgeon from the suit so that the United States would be the sole defendant.

It invoked the first provision of the Gonzalez Act, 10 U.S.C. 1089 (a), which shields medical personnel serving in the military from liability for acts they commit within the scope of their employment.

Tort suits involving military medical personnel, thus must proceed if at all exclusively against the United States under the Tort Claims Act.

After the District Court released the surgeon, the Government moved to dismiss Levin’s battery claim.

The Tort Claims Act afforded Levin no remedy, the government argued, because the intentional tort exception contained in that act bars battery claims against the United States.

To counter that argument, Levin relied on a later provision of the Gonzalez Act, Section 1089 (e) which reads, “For purposes of the Gonzalez Act, the Tort Claims Act acts intentional tort exception shall not apply to any claim arising out of a negligent or wrongful act in the performance of medical functions.”

That provision, Levin urged, abrogates the Tort Claims Act intentional tort exception when the injured party alleges malpractice by a military doctor.

And the abrogation allows him to seek damages from the United States.

The District Court affirmed by the Ninth Circuit granted the Government’s motion to dismiss.

Those courts thought that 1089 (e), the provision on which Levin relied, served only to buttress the immunity from personal liability extended to military personnel in 1089 (a) and gave no green light to Levin’s suit against the United States under the Tort Claims Act.

We reverse and hold that the Gonzalez Act abrogates the Tort Claims Act’s intentional tort exception for claims alleging that a military doctor operated without the patient’s consent, Section 1089 (e) states in no uncertain terms that the intentional tort exception shall not apply.

The introductory clause to that provision simply limits the reach of the “shall not apply instruction” to claims covered by the Gonzalez Act, that is claims against military medical personnel.

We are not persuaded by the Government’s contrary reading of 1089 (e).

According to the Government, 1089 (e) instructs courts to pretend that the Tort Claims Act intentional tort exception does not immunize the Government against liability for battery claims even though the exception does in fact provides such shelter.

This — let’s pretend reading, it seems to us quite unnatural that Congress intended 1089 (e) only to safeguard the personnel immunity already extended to military medical personnel by 1089 (a).

One would expect Congress to have said just that and surely not to decree that the intentional tort exception shall not apply.

In some because Levin has asserted the battery claim arising out of the conduct of a military doctor covered by the Gonzalez Act.

Section 1089 (e) authorizes Levin to proceed against the United States under the Tort Claims Act free from the bar of the intentional tort exception.

Our decision reversing the Ninth Circuit’s judgment is unanimous with one qualification.

Justice Scalia does not join footnote six and seven which contain citations to Senate Reports.