United States v. Smith – Oral Argument – November 07, 1990

Media for United States v. Smith

Audio Transcription for Opinion Announcement – March 20, 1991 in United States v. Smith

del

William H. Rehnquist:

We’ll hear argument next in No. 89-1646, United States v. Marcus Smith.

Please proceed, Mr. Shapiro.

David L. Shapiro:

Thank you, Mr. Chief Justice, and may it please the Court:

In this case the respondents brought an action against Dr. William Marshall, a U.S. Army physician, alleging malpractice occurring while Dr. Marshall was stationed overseas in Italy.

The Government moved to substitute the United States as defendant, because Dr. Marshall was acting in the scope of his employment at the time of the acts complained of, and moved to dismiss the action because under an exception to the Tort Claims Act for claims arising in a foreign country, recovery could not be had against the United States.

The motions were granted by the district court, and on appeal, the court of appeals reversed, holding that the provision requiring substitution of the United States and precluding an action against the individual did not apply when an exception to the Tort Claims Act barred recovery against the United States.

Because of a conflict among the circuits, the case was brought here for review.

Sandra Day O’Connor:

Well, now, Mr. Shapiro, the Government did not bring here the question about the Gonzalez Act, and–

David L. Shapiro:

That is correct, Your Honor.

Sandra Day O’Connor:

–That strikes me as a little unusual.

It’s very difficult to know how the statutory scheme fits together if you don’t know the meaning of the Gonzalez Act.

David L. Shapiro:

Well, the meaning of the Gonzalez Act is very much part of the case, Your Honor.

The question… we think the broad question whether this action precluded… is precluded by the Tort Reform Act of 1980… 1988 fairly does embrace the Gonzalez Act issue.

In any event, the respondents have relied entirely on the Gonzalez Act as a basis for affirming the judgment below.

And we agree that–

Sandra Day O’Connor:

So you think we do have to get into it, and understand at least what the Gonzalez Act means?

David L. Shapiro:

–Yes, Your Honor.

Sandra Day O’Connor:

Are you going to tell us what you think it means?

David L. Shapiro:

Well, I’m going to try–

Sandra Day O’Connor:

Because it’s a mystery to me.

David L. Shapiro:

–I’m going to try.

We do believe that the case presents two very closely related questions.

One is whether the Tort Reform Act of 1988 in its own terms applies to require substitution of the United States and precludes an action against Dr. Marshall in the circumstances of this case.

We submit, in disagreement with the court below, that it plainly does, both in the light of the language of the statute, its clearly expressed purpose, and its history.

The second question in the case, which is the question you, Justice O’Connor, referred to, is whether the Gonzalez Act of 1976 precludes the application of the reform act in this case.

Our position is that it does not.

That there is no conflict between the provisions of the Gonzalez Act and the broad protection afforded by the Reform Act, and that in the event of any conflict the provisions of the Reform Act are required to–

Sandra Day O’Connor:

Does the Gonzalez Act grant any affirmative right to sue the physician?

David L. Shapiro:

–No, it does not, Your Honor.

And I think that’s a critical point of disagreement between us and the respondents.

David L. Shapiro:

The respondents attempt to suggest throughout their brief a point which was not at all the basis of the decision below, and that is that they are pursuing a remedy under the Gonzalez Act.

They are not.

That was evident from their complaint.

The basis of their assertion of Federal jurisdiction was diversity of citizenship.

They allege malpractice by the doctor under Italian law, under California law, and under something described as general American law, which perhaps was an effort to resuscitate Swift against Tyson, but was clearly not a reference to the Gonzalez Act.

What the Gonzalez Act does, we submit, is to protect physicians in two ways.

First and most significantly, it protects physicians against suit by… requiring the substitution of the United States as a defendant.

And indeed, the Fifth Circuit held a few years ago that that preclusion, that protection, applied under the circumstances of this case.

Sandra Day O’Connor:

But that doesn’t apply if the tort occurs outside the United States?

David L. Shapiro:

Your Honor, the Gonzalez Act itself is less than completely clear on whether the preclusion of that act applies in the circumstances of this case.

The court below held that it did not.

We are not objecting to that ruling here.

A number of courts have held that in contrast to the powers–

Sandra Day O’Connor:

So we can assume that the Gonzalez Act just doesn’t apply if the tort occurs outside the United States?

David L. Shapiro:

–The Gonzalez Act does not preclude… that is, we do not challenge the holding of the court below that the Gonzalez Act does not preclude the action against the doctor in this case, the Gonzalez Act itself.

The other–

Sandra Day O’Connor:

But it doesn’t give a cause of action?

David L. Shapiro:

–That is correct.

That is correct.

The other form of protection that was given to doctors and related medical and dental personnel under the Gonzalez Act was to authorize indemnification in situations where the doctors might be held liable under some other law.

For example, if they were sued in a foreign country and held liable under foreign law, and perhaps if they were sued in other situations where the Tort Claims Act was not available.

But the only function of the Gonzalez Act, subsection (f), we submit, was to authorize indemnification of doctors.

It did not create a cause of action against them.

It did not authorize a cause of action against them.

And that is why, in our view, there is–

John Paul Stevens:

But it is true, is it not, Mr. Shapiro, that it would have permitted a cause of action against the doctor on these very facts?

David L. Shapiro:

–It would not have precluded it.

John Paul Stevens:

It would not have precluded it.

It would… there would have been no obstacle, and it would have indemnified the doctor.

So that what would have happened, assuming the complaint is meritorious, that if there had been no Reform Act, just under the Gonzalez Act this plaintiff would have recovered and the Government would have picked up the tab for the doctor.

David L. Shapiro:

The Gonzalez Act itself did not require indemnification.

It authorizes it, but the regulations–

John Paul Stevens:

But there had been a… the Secretary had taken the appropriate action–

David L. Shapiro:

–Yes, yes–

John Paul Stevens:

–so that that is what would have happened in this case if there had been no Reform Act.

David L. Shapiro:

–That is true, Your Honor.

John Paul Stevens:

So that if the Reform Act is read the way you read it, this doctor now loses.

And you are saying that didn’t change the statutory scheme?

David L. Shapiro:

We’re saying that there is no repeal of any aspect of the Gonzalez Act.

How… the Reform Act we do agree, indeed it’s the basis of our argument, changes the result in this case, yes, Your Honor, but we don’t regard that–

John Paul Stevens:

You don’t regard that as an implied repeal?

David L. Shapiro:

–No, Your Honor, we don’t.

And–

Byron R. White:

Does this mean this act isn’t applicable?

Is that it?

David L. Shapiro:

–The Gonzalez Act provides that a doctor may be indemnified in situations where under some other law the doctor is held liable.

We don’t believe that the Reform Act repeals the Gonzalez Act any more than a decision by Italy or California to abolish the tort of malpractice would repeal the Gonzalez Act.

John Paul Stevens:

No, but it limits its application to providing protection in the case there might be recovery under foreign law in a foreign jurisdiction.

David L. Shapiro:

It limits its application.

John Paul Stevens:

That’s all that’s left of it.

David L. Shapiro:

Well, there may be other situations in which indemnification–

John Paul Stevens:

But not the principal ones of suits against… there were three in the original act, but now we’re down to part of one.

David L. Shapiro:

–Well, it may include another, because there may be situations in which a doctor is lent to a State or a private institution, and is sued in situations where the case cannot be regarded as one within the scope of his Federal employment, and therefore one where the Tort Claims Act remedy is relevant.

To return, if I may for a minute, I would like to return to this also, but to return for a minute to the broader question in this case on which there is this conflict among the circuits.

We submit that the Reform Act in its own terms clearly does require substitution of the United States and precludes the action against the individual.

Indeed the respondents appear to have conceded that point in their brief.

They do not pursue it.

They rely only on the argument that the… whatever action was available under the Gonzalez Act is preferred… is preserved.

In our view that concession is correct.

We think there is no question under the text of the Reform Act that substitution of the United States is required here, and that the action against Dr. Marshall is precluded.

David L. Shapiro:

To begin with the text of the Reform Act, it starts in what is now subsection (b)(1) of section 2679, by saying that the remedy against the United States provided by 1346(b) is exclusive of any other civil action–

Sandra Day O’Connor:

Well, the problem with that is that the Federal Tort Claims Act doesn’t apply to torts overseas.

So it isn’t all that clear on the face of it, is it–

David L. Shapiro:

–Your Honor, we don’t believe–

Sandra Day O’Connor:

–that the Reform Act affects this?

That’s, I guess, one of the concerns of the Ninth Circuit.

David L. Shapiro:

–Well, the Ninth… the Ninth Circuit did certainly address that question squarely, but we think it didn’t read the act as a whole, or… nor did it focus on the legislative findings.

That is, you start with what is now 2679(b)(1).

We concede that that section standing alone is capable of two different readings, although we contend the far more plausible reading is that you have to take the Tort Claims Act remedy with its exceptions and limitations.

We believe that that reading is confirmed beyond any doubt first by subsection (b)(4), which is a part of the same statute, and which says that upon certification that an employee was acting within the scope of his employment.

The action against the United States shall proceed and shall be subject to the limitations and exceptions applicable to those sections.

Sandra Day O’Connor:

Well, but it says an action or proceeding subject in paragraph 1, and if you read paragraph 1 as not applying overseas, then how does that help you?

David L. Shapiro:

Well, Your Honor, we think… we think it’s clear that paragraph (b)(1) itself… we concede that it is capable of two readings, but that standing alone the far more plausible one is the one we urge.

And we, I’m sure, would be here today making the same argument if (b)(4) were not there.

But we think that (b)(4) confirms the natural reading of (b)(1) that the action can go forward, must go forward, subject to the limitations and exceptions of the act itself, including those in 2680.

Indeed that’s confirmed by the legislative history.

The House Committee report said, and I quote,

“Any claim against the Government that is precluded by the exceptions in 2680 is also precluded against an employee, or his or her estate. “

We also believe that that reading is consistent with the legislative findings that were made in the Reform Act, that were incorporated in the act in section 2.

Those findings start by suggesting that this Court’s decision in Westfall against Erwin, which had… just previously been announced, seriously eroded the common law immunity previously available to… Federal employees.

In the view of Congress, the erosion of that immunity had created an immediate crisis, and I am reading again from the findings

“involving the prospect of liability and the threat of protracted litigation. “

So, Justice Stevens, to return to an earlier question of yours, Congress was concerned not only with the threat of liability, but with the threat of protracted personal tort litigation for the entire Federal work force.

And Congress does not suggest in doing that that the employees whose conduct falls within the exceptions of section 2680 are in any sense different from Federal employees whose conduct is subject to, not only to suit under the Tort Claims Act, but to recovery as well.

And the findings go on to say that granting broad protection to individual employees is necessary to the morale and well-being of the Federal work force.

I should emphasize, if I may, that the respondents at the end of their brief have seriously overstated the consequences of the position that the Government is urging here.

They suggest that the effect is to… really is to leave the respondents without any remedy whatever.

It is true that our position is that respondents cannot recover either under Federal or State law in court for the wrongs they allege.

But they do have a remedy, they did at the time, and they still do, under the Military Claims Act, 10 U.S.C. Section 2733.

Millions of dollars are paid every year under that statute on the basis of claims of malpractice in situations where the recovery is not available under the Federal Tort Claims Act.

David L. Shapiro:

It is also true that under a program called the Civilian Health and Military Medical Program of the Uniformed Services, a substantial percentage of the child’s care, costs of medical care, are covered until the child is 21, and if the child is severely handicapped, then for the rest of their life.

John Paul Stevens:

Mr. Shapiro, those were all in effect at the time the Gonzalez Act was applied, weren’t they?

Adopted?

David L. Shapiro:

Yes, Your Honor.

I’m not quite sure of the timing, but I think that they were.

The Gonzalez Act, Your Honor, was not intended to protect or to provide a remedy for individuals.

That was–

John Paul Stevens:

No, it’s pretended to protect the doctors–

David L. Shapiro:

–Yes.

John Paul Stevens:

–is what it was doing.

It provided complete protection to the doctors, but it preserved the remedy.

Whereas this other statute provides complete protection to the employee by taking away some remedies.

David L. Shapiro:

This returns, and I think it’s more than a matter of semantics, Justice Stevens.

It returns to what I think is a critical distinction between preserving a remedy, authorizing a remedy, or creating a remedy.

And–

John Paul Stevens:

Well, it’s critical for your reading of the savings clause about no violation of the statute.

That’s… I understand, I understand your argument there.

David L. Shapiro:

–Yes, yes.

John Paul Stevens:

And literally you perhaps have the better of it, but one can assume that perhaps there is some legislative history suggesting Congress did not intend to take away, except for those created by the Westfall case, what had thought to be other Tort Claim Act… other statutory remedies.

David L. Shapiro:

There is an indication–

John Paul Stevens:

And let me ask you one other thing, because you might want to address them both together.

Is it correct that there is an absence in the legislative history of the Reform Act of any specific consideration of medical malpractice claims?

David L. Shapiro:

–The only references, I believe, in the legislative history to medical malpractice are references to the Gonzalez Act as an example of situations in which actions are precluded, and a reference to the Powers case, which is very much like this case, in which the Fifth Circuit held that an action of this type was precluded by the Gonzalez Act itself.

But no general discussion of malpractice.

I think it’s fair to say that Congress was concerned about all potential tort liability of all Federal employees, and of course, there is no question at all that a great many malpractice claims are within the scope of the Reform Act.

And it’s our contention that all malpractice claims are.

With respect to the focus of the Gonzalez Act, we do believe, as I think you agree, that the purpose of the Gonzalez Act was to protect physicians, that the… and related medical personnel.

That the primary means for affording that protection was to preclude suit against them as individuals and to require suit against the United States.

It is not clear from either the text of the act itself or its history to what extent that preclusion was total.

And every court that faced that question of the Gonzalez Act recognized that it was a difficult question.

David L. Shapiro:

We do believe, in view of subsection (f) and the legislative history, that it’s not appropriate to contest–

John Paul Stevens:

Well, it is clear.

I mean this much at least is clear, is if there’s no remedy under the Federal Tort Claims Act, then the case would be remanded to a state court, a provision that’s not in the Reform Act.

And therefore they clearly contemplated, in the case of a foreign suit, it would go forward.

David L. Shapiro:

–Your Honor, the provision–

John Paul Stevens:

That’s clear, isn’t it?

David L. Shapiro:

–I don’t believe so.

John Paul Stevens:

Oh, I’m sorry.

David L. Shapiro:

There’s a provision of the old Drivers Act, which was very similar to the remand provision of this act, which was interpreted by the courts to apply only when it was determined that the employee was not acting within the scope of his employment.

That is, the remand provision–

John Paul Stevens:

Yes, but this remand provision refers to the absence of a remedy.

That’s what it… that’s not the scope of employment.

David L. Shapiro:

–So did the old provision of the Drivers Act.

John Paul Stevens:

Oh, I’m sorry, I didn’t–

David L. Shapiro:

That is, the question what the… phrase absence of a remedy means was much debated in the lower courts.

We think it’s been resolved by the new provisions of the Reform Act.

But under the old provisions, it was held under the Drivers Act by several courts that the phrase the absence of a remedy referred to the availability under 1346 of a suit against the United States and not to the possibility that there might be internal exceptions within the act itself.

So that the only situation which a remedy was absent in the view of those courts was where the employee was not acting within the scope of his employment.

If I may return to a point which I think was implicit in your earlier question, the issue whether the broad scope of the Reform Act is in any way limited by the Gonzalez Act, we think is illuminated by the fact that the Reform Act itself contains two very specific exceptions in subsection (b)(2): an action may be brought against an individual for a violation of the Constitution, a Bivens action which, of course, is not this case, or may be brought against an individual for a violation of the statute of the United States.

I don’t want to rehearse my earlier effort to answer Justice O’Connor, but we do think it’s clear that this action against Dr. Marshall is not an action for a violation of the statute of the United States.

The complaint that was filed in the case clearly did not regard it as such.

Now this Court has said in Andrews against Glover and a number of other cases that when there is a specific enumerated exception in an act, this Court should be very reluctant to apply an additional exception in the absence of very clear legislative intent.

We submit that there is no such legislative intent, either clear or cloudy in this case.

Now, the respondents try to answer that by invoking another doctrine of statutory construction, the doctrine involving a presumption against implied repeals.

We have attempted, I think, already to explain why in our view there is no implied repeal in this case.

Not only is there still room for the Gonzalez Act itself to operate, but the Gonzalez Act itself simply authorized indemnification of a physician when in fact a physician was held liable under the provisions of some other law.

So that if the other law under which a doctor might be held liable prevents the suit against the doctor, that simply reduces the need for indemnification.

It does not, in our view, in any way repeal the statute.

We do, however, go on in our brief, and I would like to underscore that to the extent this Court believes there is any tension or conflict between that provision of the Gonzalez Act and the broad scope of the Reform Act, that this case, like the case of Gordon against the New York Stock Exchange and other cases, is a case where the later statute must be given precedence if it’s to be given its full scope.

There is no doubt, we believe, that Congress intended to protect Federal employees not only from liability but from the threat of protracted litigation.

David L. Shapiro:

That’s made very specific in the finding.

That purpose would be severely undermined if the Gonzalez Act, however it might be read, were to undercut the language of the… the language and purpose of the Reform Act in this case.

If I may, I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

–Very well, Mr. Shapiro.

Mr. Oleniewski, we’ll hear from you.

Walter A. Oleniewski:

Mr. Chief Justice, and may it please the Court:

We believe that the concessions made by the Government in this case are critical to the resolution of this case, and primarily those concessions deal with the Gonzalez Act.

Basically, what the Ninth Circuit Court of Appeals did is they addressed two questions.

The first question was, one, whether a military doctor who is working in a foreign country is immune under the Gonzalez Act from suits for medical malpractice.

And the court in that situation said that the doctor was not so immune and could be sued, regardless where the suit was brought.

Byron R. White:

Are you defending the rationale of the court of appeals?

Walter A. Oleniewski:

Yes, Your Honor.

Byron R. White:

Well, they didn’t need to get to the Gonzalez Act at all.

They just said that the Reform Act by its own terms just doesn’t apply to this case.

Walter A. Oleniewski:

Which is true, Your Honor.

Byron R. White:

Well, that isn’t… the Government says it isn’t.

Walter A. Oleniewski:

But the first issue that the Ninth Circuit addressed in its opinion was the Gonzalez Act.

Once they addressed that issue and found that there was a remedy under the Gonzalez Act, they then turned to an analysis of the, what is called Reform Act, to determine whether or not Dr. Marshall was immune under the Reform Act.

Byron R. White:

Um-hum.

Walter A. Oleniewski:

And–

William H. Rehnquist:

Do you defend their, the Ninth Circuit’s reasoning about the Reform Act?

Walter A. Oleniewski:

–Well, I am not sure, Your Honor, how clear–

William H. Rehnquist:

You’re not sure what it was?

Walter A. Oleniewski:

–Well, I think the court went part way.

They did indeed, as counsel for the Government has said, they did make a statement in the course of the opinion that because there was no remedy under the Federal Tort Claims Act, that Dr. Marshall was not immune.

You have to also understand that as they concluded their opinion, the very last sentence before the conclusion was that we hold, as did the Eleventh Circuit in Newman v. Soballe, that the doctor is not immune from a lawsuit.

Now–

William H. Rehnquist:

To win here, you don’t have to defend every sentence in the Ninth Circuit’s opinion.

Do you agree with the statement that because the… there was no cause of action against the United States because it was in a foreign question… foreign country, therefore the Reform Act didn’t apply?

Walter A. Oleniewski:

–In the limited circumstances of this case, I would, Your Honor.

Walter A. Oleniewski:

And the reason being, this case involved a claim that arose in a foreign country, and because it was different than all the other exceptions contained under 2680.

As Justice O’Connor pointed out earlier, and as the legislative history has pointed out in the Gonzalez Act, Congress recognized that they could not legislate and they could not impose their laws on the sovereign of another country.

That is why the Federal Tort Claims Act does not apply in a foreign country.

Byron R. White:

But even if… even if you thought the court of appeals was wrong in that specific statement, you… you wouldn’t lose.

Walter A. Oleniewski:

That’s correct, Your Honor.

Byron R. White:

That’s what you’re arguing?

Walter A. Oleniewski:

That’s correct.

Byron R. White:

That’s right.

Walter A. Oleniewski:

And their holding, as they said in their last sentence of their opinion before the conclusion, was the same as the holding in Newman v. Soballe.

Now, Newman v. Soballe clearly stated, and again it gets back now to the concessions of what the Government has conceded.

Newman v. Soballe said that a military doctor is protected by the Gonzalez Act and is therefore not among those Federal employees affected by the Westfall decision or the Reform Act.

Byron R. White:

Well, do you think that the Gonzalez Act conveys a cause of action on a plaintiff who has been allegedly injured by a Federal doctor?

Walter A. Oleniewski:

I prefer to refer to it as a remedy, Your Honor, but I would also agree that a cause of action would be an acceptable synonym.

And indeed, although the Government is arguing here today that the Gonzalez Act does not provide a remedy, in their petition for certiorari, at page 5 of their petition they say that the Gonzalez Act regulates the remedies available for malpractice by military physicians.

And on the very next page of that opinion, of that petition, they say that the Eleventh Circuit in Newman v. Soballe clearly held that Congress intended for the Gonzalez Act to permit suits against a military doctor when the Federal Tort Claims Act excepted… when the Federal Tort Claims Act exceptions foreclosed suit against the United States.

And they then said–

Antonin Scalia:

Excuse me, I–

Walter A. Oleniewski:

–they wouldn’t appeal from that.

Antonin Scalia:

–That could mean to permit suits where suits are otherwise available, but not to create a cause of action.

What, what language do you rely upon in the Gonzalez Act as conferring a cause of action?

Walter A. Oleniewski:

Well, first of all, the Gonzalez Act in 1089(a) does talk about a cause of action under the Federal Tort Claims Act.

In 1089(f)–

Antonin Scalia:

Well, wait a minute.

What does it say about that?

It says that that… that remedy under the Tort Claims Act–

Walter A. Oleniewski:

–Is exclusive.

Antonin Scalia:

–shall be exclusive.

Now that doesn’t confer any cause of action, does it?

Walter A. Oleniewski:

That… other than what might be available through the Federal Tort Claims Act, Your Honor.

Antonin Scalia:

Well, that’s right.

Antonin Scalia:

It certainly confers no new cause of action.

It says the Tort Claims Act remedy shall be exclusive.

What other language in the Gonzalez Act?

Walter A. Oleniewski:

Then we go to 1089(f), which indicates that the Secretary may hold the doctor harmless or indemnify him in situations where he may be detailed to a foreign country–

Antonin Scalia:

Right.

Walter A. Oleniewski:

–or a Federal institution, or under some other circumstances–

Antonin Scalia:

That doesn’t create a cause of action either.

It just says if he is held liable, you can identify… indemnify.

Walter A. Oleniewski:

–Well, that’s why I prefer to refer to it as a remedy, Your Honor, because as the Government has taken the position… for example, prior to the Westfall legislation, when we only had the Gonzalez Act… the Gonzalez Act was enacted in 1976, and since 1976 until 1989 the Government made the argument that the Gonzalez Act provided an exclusive remedy only through the United States under the Federal Tort Claims Act.

They refused, until the Newman decision in 1989, to acknowledge that suit can be permitted against an individual doctor.

Antonin Scalia:

Did they say that it provided an exclusive remedy under the Tort Claims Act, or did, do they say that it provided that the remedy under the Tort Claims Act is exclusive?

Walter A. Oleniewski:

The latter, Your Honor.

Antonin Scalia:

The latter.

I don’t see that it creates any remedy at all.

It just speaks to exclusivity of other remedies, and to indemnification for payment that is made under causes of action that elsewhere exist.

Walter A. Oleniewski:

Well, Your Honor, the Government has already conceded that they had no disagreement and they were not appealing from the rationale of either Newman or Smith with regard to the fact that a doctor can be sued in his individual capacity, and the Government would then indemnify him.

Antonin Scalia:

Well, they said they are not appealing from it, but to the extent that you make an argument based upon the Gonzalez Act that relates to the interpretation of the Reform Act, I don’t understand them to have waived their position.

Walter A. Oleniewski:

Well, with regard to the Reform Act, because it did not carry a provision similar to what’s contained in 1089(f), and because of the legislative history which cites the Gonzalez Act with some approval, we believe that Congress intended for 1089(f) to remain viable so that an individual doctor would still be protected from individual liability for, among other things, suits that occur either in a foreign country or in the United States if the claim arose in a foreign country.

As a matter of fact, in the same year that the Reform Act was enacted, Congress amended the Veterans Administration statute, 38 U.S.C. 4116.

It also contains a similar provision to what is contained in 1089(f), providing for indemnification of Veterans Administration doctors.

They passed that in the same year that they passed the Reform Act.

They obviously intended words such as the indemnification in 1089(f) to have effect.

The Government has conceded that as an alternative basis for affirming that the rationale that was interpreted by the courts below interpreting Gonzalez could be a separate basis for affirming.

With regard to the–

Byron R. White:

Well, I thought they just said that maybe we ought to, we ought to remand to have the Gonzalez Act further considered.

But I thought the Government says we ought to decide it here, and that Gonzalez… that the Gonzalez Act can’t be an alternative ground for affirmance.

Walter A. Oleniewski:

–Well, in their petition at page 20–

Byron R. White:

I’m talking about their brief on the merits.

Walter A. Oleniewski:

–Your Honor, with regard to the brief on the merits, what they are arguing in there is that the Gonzalez Act continues to have viability, but the viability is now limited to (1) a suit against the doctor in a foreign country and (2) to an intentional tort, such an assault and battery.

Byron R. White:

Well, they say it’s of no utility in this case.

Walter A. Oleniewski:

Well, I’m not sure how they arrive at that, Your Honor.

Byron R. White:

Well, but that’s what they urge.

Walter A. Oleniewski:

I understand.

William H. Rehnquist:

Yes.

May I say a word to you, Mr. Oleniewski?

We granted certiorari in this case, of course, to resolve the question presented in the question… in the petition for certiorari.

And your, naturally you have concern as to what the ultimate outcome of the case is for your client about remanding and so forth.

But we’re here to decide as best we can the question presented in the petition.

Walter A. Oleniewski:

I think, Your Honor, that the question presented in the petition wasn’t necessarily the decision that was reached by the Ninth Circuit.

The Ninth Circuit did, as you pointed out earlier, did mention in passing that there was no remedy available under the Federal Tort Claims Act, and that’s why Dr. Marshall is not immune.

But I also indicate that because this is an incident that occurred in a foreign country, and because the Federal Tort Claims Act and Congress recognize that does not extent to a foreign country, that is why in this situation the Reform Act does not apply.

With regard to the Reform Act, there seems again to be some discussion about what the respondents’ position is with regard to 28 U.S.C. 2679(b)(2).

That is the provision that has the two exceptions within the Reform Act, the two exceptions being to bring a suit against a Federal employee in his individual capacity either for a violation of the Constitution of the United States or, two, for a violation of a statute of the United States under which such action against the individual is otherwise authorized.

Now, although Government seems to think we don’t rely upon that statute, we do.

Obviously we did not rely upon that statute when the lawsuit was filed, because the lawsuit was filed more than a year before the statute was enacted, and obviously we could not have.

The statute was not enacted until this matter had already gone through the district court and was in the court of appeals.

But it’s clear that the statutes that Congress contemplated had to include, among others, the Gonzalez Act.

The only legislative history that we have from Congress on that talks in terms of preserving legal remedies that existed before, not changing any legal remedies that existed before.

And so as they were passing this legislation to protect what they perceived was a change in the law caused by this Court’s decision in Westfall v. Erwin, they did not change any of the other statutes that already existed, among them the Gonzalez Act.

Now, the use of the term “violation”, I am not sure why Congress used that word.

There is no mention in the legislative history why they used that word.

It’s a shorthand term.

Certainly with regard to the Constitution you can’t bring an action against someone for violating the Constitution.

You bring an action against someone for violating the rights that another person has under the Constitution.

And for the same logic, the law… violation of a statute of the United States would also say that you can sue an individual where there has been a violation of a statute where this Federal statute permitted a remedy against the individual doctor.

Again, the Gonzalez Act, 1089(f).

There’s been some discussion also about whether or not a remedy has been created.

Clearly before the Westfall legislation was enacted, the Gonzalez Act did permit, under 1089(f), a doctor to be indemnified, which obviously meant, according to the Ninth Circuit and the Eleventh Circuit, that he could be sued in his individual capacity.

But before the Newman decision, the Government relied upon cases like Powers v. Schultz, and in those cases they were making the same argument that they’re making now.

And the argument there was that there was only a remedy if you could be sued in a foreign country.

Walter A. Oleniewski:

That was rejected by Newman, that was rejected by Smith, and the Westfall legislation doesn’t in any way indicate that those interpretations should be changed.

In the case of Powers v. Schultz, when the Government won that decision, the plaintiff was dismissed from court and there was no remedy for that plaintiff.

Under Newman and under Smith, because the doctor was allowed to be sued in his individual capacity, it allowed a suit to proceed against the doctor and for a potential remedy against the doctor.

We believe that there is sufficient rationale in the holding of the Smith case, and particularly as it applies to adopting the holding in Newman v. Soballe, that the Gonzalez Act is still a viable statute, and as a viable statute, a remedy is available against the doctor individually, regardless of where the suit is filed.

John Paul Stevens:

May I ask you a question?

Earlier I think you said the statute… the Reform Act did not expressly amend any other statute, something like that.

Did it expressly repeal or supersede the Motor Vehicle Act?

Walter A. Oleniewski:

Yes.

And that’s a good point, Justice Stevens, because in your inquiry of Government counsel you had asked about a comparison of the provisions in the Drivers Act and in the Gonzalez Act.

In the Gonzalez Act, the remand provision under 1089(c) is a remand of a case to State court where there is no remedy.

The Drivers Act, as it existed, did not have similar language.

The Drivers Act language was limited to remand when the driver was found to be outside the scope of his employment, not whether or not a remedy was available to him.

But it’s clear that the Drivers Act was assimilated into, and has now been to an extent broadened to become the Reform Act.

John Paul Stevens:

May I ask you another… I may make you a little far afield, but I am curious.

Under the Drivers Act, or under the Reform Act since then, has it been decided whether an intentional tort may be sued upon?

Walter A. Oleniewski:

I’m not–

John Paul Stevens:

Say a driver, you know, some wild allegation he intentionally insulted someone.

Would that be covered by–

Walter A. Oleniewski:

–Other than the Gonzalez Act and the VA statute and a couple of the other piecemeal statutes providing for medical doctors’ immunization, which has subsections providing for intentional torts, I am not aware of any provision that would permit a suit for an intentional tort under either the Drivers Act or the Reform Act.

So,–

John Paul Stevens:

–I suppose if we, if we accept the Government’s position here, a suit against the doctor for an intentional tort would also be barred, if the Gonzalez Act is superseded by the Reform Act?

Walter A. Oleniewski:

–I would think, to carry their logic, it would have to be.

John Paul Stevens:

Yeah.

Walter A. Oleniewski:

Because they are picking and choosing those provisions of the Gonzalez Act that they believe have been repealed.

John Paul Stevens:

Well, they’re saying that whatever is outside the scope of the Reform Act remains.

That’s what they say.

But if the… but if the tort, basic tort act precludes recovery for intentional torts… I guess that is one of the exemptions, isn’t it?

Walter A. Oleniewski:

That’s correct.

John Paul Stevens:

Well, then… and if the statute applies to bar any action except under the Reform Act, that would mean an intentional tort action would be barred, I would think–

Walter A. Oleniewski:

Yes.

Walter A. Oleniewski:

I think there could be an argument made that a doctor could no longer… or that 1089(e), which provides for an intentional tort to be brought against the United States, that an argument can be made that that is no longer in existence.

I don’t think that’s the case, because I think it’s clear from the legislative history and the way that Congress cited the Gonzalez Act that they were satisfied with the Gonzalez Act.

David H. Souter:

–What is your response here to Mr. Shapiro’s argument based on 2679(d)(4) to the effect that, in the provision there, that once there has been a scope certification and a substitution of the United States, the action proceeds subject to the limitations and exceptions applicable to those actions?

His argument is that there would be no utility in that reference to subject to limitations and exceptions if remedy were to be… were to be limited to cases in which recovery is possible.

Walter A. Oleniewski:

Justice Souter, prior to enactment of the Reform Act, the Gonzalez Act essentially carried those same provisions.

But because the Gonzalez Act also carried subsection (f), it really didn’t apply in certain specified situations for military doctors.

It’s our contention that Gonzalez Act is still viable, and that that all-encompassing language of (d)(4) doesn’t really apply to Dr. Marshall.

David H. Souter:

If we don’t accept your position on the Gonzalez Act, does this argument defeat you under the Reform Act?

Walter A. Oleniewski:

No, because in this particular case… again, it is an incident that occurred in a foreign country, and Congress doesn’t really extend to a foreign country.

That’s why we don’t believe–

David H. Souter:

Well, isn’t that one of the limitations and exceptions to which (d)(4) refers?

Walter A. Oleniewski:

–Well, if you look at the introductory language to 2680, the language specifically says that this section and this chapter shall not apply to any of the following, which includes a foreign country.

The Reform Act happens to be located in that chapter, Chapter 171 of the Federal Tort Claims Act.

So by its own terms would not apply.

David H. Souter:

What, what then do we make of (d)(4)?

What is its utility?

Walter A. Oleniewski:

Basically, in any type of a common law tort situation it would be available as an exclusive remedy.

David H. Souter:

Um-hum.

Walter A. Oleniewski:

As the legislative history clearly points out at page 3 of the House Report, the examples of the kinds of claims that may be brought against Federal employees includes suits for clerical negligence in typing or filing documents, errors in benefit determination, suits against park rangers.

Those were the things that Congress had in mind when they were enacting the Reform Act or the Westfall legislation.

David H. Souter:

So it would basically, in most cases it would refer, then, to limitations and so on under the local law?

Walter A. Oleniewski:

Yes.

David H. Souter:

Yeah, okay.

Walter A. Oleniewski:

Thank you.

William H. Rehnquist:

Thank you, Mr. Oleniewski.

Mr. Shapiro, do you have rebuttal?

David L. Shapiro:

Thank you, Mr. Chief Justice.

Just two points, one to correct the record on one point.

The remand provisions of the old Drivers Act were word for word the same as the remand provisions of the Gonzalez Act.

Reading from the old Drivers Act, it says

David L. Shapiro:

“Should a United States district court determine that the case so removed is one in which a remedy by suit within the meaning of subsection (b) is not available against the United States, the case shall be remanded to the State court. “

And as I suggested earlier, that was interpreted to mean that the case shall be remanded when it was determined that the employee was not acting within the scope of his employment.

One other–

Antonin Scalia:

Mr. Shapiro–

David L. Shapiro:

–I’m sorry.

Antonin Scalia:

–Mr. Shapiro, while you’re on the Gonzalez Act-type things, could you explain to me the purpose of the last part of subsection (f) of the Gonzalez Act?

If the exclusiveness of remedy recited in the Gonzalez Act, which language is very much like the exclusiveness recitation in the Reform Act, if that exclusiveness prevents an action against the employee, even where there would be no action available against the United States, what is the purpose of that provision which allows the head of the agency to get liability insurance, if the circumstances are such as are likely to preclude the remedies of third persons against the United States?

I… you know, I read that as embodying the assumption that if the circumstances are such as are likely to preclude remedies against the United States, there is a remedy against the employee, and therefore he’s going to need insurance.

Isn’t that assumption sort of implicit in that?

David L. Shapiro:

Yes, I think it is, Your Honor.

I mean, that’s one of the puzzlements of this case that led us ultimately not to pursue the argument that the Gonzalez Act itself precludes this action.

Antonin Scalia:

Yes, but the point is that the first part of the Gonzalez Act uses language that’s very similar to the language you’re relying on in the Reform Act.

David L. Shapiro:

That’s true.

Antonin Scalia:

And if… if in the Gonzalez Act they didn’t think that that language precluded the suit against the individual, why would they in the Reform Act?

David L. Shapiro:

The Gonzalez Act is simply cloudy on this point, and the other two parts of subsection (f) may well embrace points that are consistent with a broader reading of subsection (a) of the Gonzalez Act.

That clause, as a general catch-all clause, seems to give what we regard as the less plausible reading of the general provision of Gonzalez.

But when you turn to the Reform Act, every bit of evidence available, the text of subsection (4), the legislative findings, the legislative history, lead in precisely the opposite direction.

And we believe, as the courts that have construed the Gonzalez Act believe, that the general language about the remedy being exclusive is susceptible of different readings.

Those courts have agreed that our reading is the more plausible one.

But reading it in conjunction with subsection (f), they have felt constrained to conclude that the Gonzalez Act itself did not preclude the remedy.

That factor simply is not present under the Reform Act, and the broad purpose of the Reform Act to give this kind of protection, we believe is evident both from the language from the statute and its history.

But you’re quite right that that part of subsection (f) is simply there, and it’s puzzling.

Yes, Justice Stevens?

John Paul Stevens:

Mr. Shapiro, I’m just curious.

Other than the Gonzalez Act and the Motor Vehicle statute, are there other statutes where there was specific problems within the general area of coverage of the Federal Tort Claims Act were addressed by special legislation?

David L. Shapiro:

There are other statutes similar to the Gonzalez Act.

Counsel referred to the Veterans Act, the Public Health Service Act, the State Department Act, all of which have provisions which are somewhat similar.

But I should mention in that connection that the 1988 amendment to the Veterans Act that is referred to simply incorporates into it the allowance of actions for intentional torts, or at least the revision, and xx effective revision of the intentional tort exception to the Tort Claims Act, so that a malpractice action may be brought against a physician that sounds in battery.

That that was the purpose of the 1988 amendment.

There are such statutes, other such statutes.

David L. Shapiro:

If there are no further questions, we would submit the case.

William H. Rehnquist:

Thank you, Mr. Shapiro.

The case is submitted.

The honorable court is now adjurned until Tuesday next at ten o’clock.