Levin v. United States
663 F.3d 1059
9th Cir.2011Background
- Levin sued the United States and Navy surgeon for battery and medical malpractice after a cataract surgery with informed consent.
- The United States substituted itself for Dr. Bishop under the Gonzalez Act, which protects military medical personnel from malpractice liability and makes FTCA the exclusive remedy.
- The district court granted summary judgment on the malpractice claim for lack of expert testimony; the battery claim survived for trial.
- The United States moved to dismiss the battery claim for lack of subject-matter jurisdiction, arguing FTCA's immunity for battery applies and § 1089(e) does not waive it.
- Levin appeals only the battery dismissal, arguing that § 1089(e) waives sovereign immunity for battery.
- The Ninth Circuit affirms the district court, holding § 1089(e) does not waive sovereign immunity for battery and the FTCA's immunity remains intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Gonzalez Act §1089(e) waive sovereign immunity for battery claims? | Levin: §1089(e) waives immunity for battery claims. | United States: §1089(e) does not waive immunity; FTCA §2680(h) preserves immunity for battery. | No; §1089(e) does not waive immunity for battery. |
| Is Levin’s reading of §1089(e) the best interpretation after statutory context and purpose? | Levin’s interpretation is plausible and consistent with purpose to offset FTCA relief for battery. | Court should read §1089(e) as a limitation on the FTCA’s battery immunity, not a waiver. | Best interpretation rejects Levin; does not create waiver. |
| Are there governing sovereign-immunity-waiver standards that foreclose Levin’s reading? | Levin relies on potential implied waiver via §1089(e). | Waivers must be unequivocally expressed; no unequivocal waiver exists. | Levin's reading is not an unequivocal waiver; rejected. |
| Does Franklin v. United States affect this case’s interpretation of §1089(e)? | Franklin supports interpreting similar language as a waiver. | Franklin is unpersuasive and inconsistent with Smith and immunity principles. | Franklin is unpersuasive; follows Smith's limited immunity approach. |
Key Cases Cited
- United States v. Sherwood, 312 U.S. 584 (1941) (sovereign immunity requires unequivocal express waiver)
- King v. United States, 395 U.S. 1 (1969) (waivers must be unequivocally expressed)
- Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983) (strict construction of waivers in sovereign-immunity cases)
- Hodge v. Dalton, 107 F.3d 707 (9th Cir. 1997) (limitations on waivers must be strictly observed)
- Smith v. United States, 499 U.S. 160 (1991) (FELRTCA immunity framework; govt liability not broadened by offset reasoning)
- Jimenez v. Quarterman, 555 U.S. 113 (2009) (statutory interpretation guiding purpose and context)
- Franklin v. United States, 992 F.2d 1492 (10th Cir. 1993) (distinguishes waiver from government-offset reasoning)