*1 SMITH STATES UNITED al. v. et al. et March 1990 Decided Argued November No. 89-1646. *2 Marshall, J., opinion Court, delivered the in which Rehn- quist, J., White, Blackmun, O’Connor, C. and Scalia, Kennedy, and Souter, JJ., joined. Stevens, J., dissenting opinion, filed a post, p. 175.
Deputy Shapiro argued Solicitor General the cause for the United States. With him on the briefs were Solicitor Gen- Attorney Starr, eral Stephen Assistant Gerson, General L. Nightingale, Herwig, Daly. Barbara L. and F. John argued A. respondents.
Walter Oleniewski the cause for Ashley himWith on the brief was Joel Gardner. opinion delivered the of the Court.
Justice Marshall Employees Liability The Federal Reform and Tort Com- Act) pensation (Liability Act of 1988 Reform Act or limits the persons injured by relief available to acting employment. persons within the of their For so injured, provides “[t]he the Act (FTCA) Tort Claims States” under the Federal
United money proceeding for civil “is exclusive of other §2679(b)(1). Subject damages.” certain ex- S. 28 U. C. person injured permits ceptions, a Govern- the FTCA employ- employee acting his or her within the ment damages against the Government. One to seek tort ment recovery injuries exception sustained outside bars 2680(k). country. presents This C. case S. See U. injured by military person question abroad whether a the physician, exception foreign-country whom the FTCA may precludes suing none- Government, from therefore damages particular Government em- seek theless injury. ployee that the who caused the We hold *3 recovery. alternative mode of Reform Act bars this I working of the United In on the medical staff while Italy, Army hospital Dr. Marshall Vicenza, States in William during attending Hildegard physician the as to Smith served delivery Dominique. time, At Ms. Smith’s this her son Army Sergeant in husband, was an stationed Smith, Marcus Dominique Italy. According with Smiths, was born the damage. re- Smiths, In the who are massive brain spondents in United in Dr. Marshall Court, sued California, District of States District for the Court Central citizenship. basing jurisdiction diversity The Smiths on during delivery alleged negligence Dr. Marshall’s Dominique’sinjuries.1 caused sought to itself
The Government and have sub- intervened pursuant to for stituted Dr. Marshall as the defendant pro- 10 U. S. C. 1089. The Gonzalez against personnel for that in suits torts vides employment, the Govern- committed within the their and suit is to is to be substituted as the defendant ment law, law, brought Italian Respondents their claim under California ¶ Complaint 19. “general principles of law.” See American proceed against the under Government the FTCA. See (b). §§1089(a), argued The Government also that, because exception excluding overseas, the FTCA action arose re- covery injuries §2680(k), abroad, sustained 28 U. C.S. liability. precluded Consequently, Government the Gov- concluded, ernment the action should be dismissed. The granted the District Court Government’s motion for substitu- App. tion and dismissed the action. See to Pet. for Cert. 17a-18a.2 respondents’ appeal pending, Congress
In 1988, while was enacted the Reform Act as an amendment to the response ruling FTCA. in took this action to our (1988), in Erwin, U. S. which held that Westfall judicially immunity created of official doctrine does not immunity absolute Government employment. torts committed West- immunity fall, we ruled such official would have to be case-by-case according determined on basis, to whether government particular “the contribution effective con immunity granting “outweighs potential texts” from harm to S., individual citizens.” U. at 299. The Liabil ity Reform Act establishes the absolute for Gov recognize ernment Court declined to under the commonlaw Act confers such im Westfall. munity by making FTCA Government the exclusive for torts committed *4 scope employment.3 in the of 2 dismissal, ground As an alternative for the District Court cited re spondents’ present appropriate failure to agency their claim to the federal 2401(b). required App. § within the time under 28 U. C. to Pet. S. See for Cert. 17a-18a. 3 provides: Section 5 the Act of provided by
“The against the United States in- [the FTCA] for jury injury property, personal arising or loss of or or resulting death or wrongful any or omission negligent employee the act or of the Gov- acting scope employment ernment while within the of his office or is exclu- proceeding money damages by sive of for other civil action or reason of present appeal case, the Government relied on the On support the District Court’s dismissal of this new statute to argued respondents’ that the Li The Government action.4 essentially ability had the same effect as that Reform Act the had found to result from Gonza the District Court which alleged malpractice Dr. Marshall’s oc lez Act. Because employment, scope the ar Government curred his against respondents’ proceed gued, it as an action should that, further contended FTCA action.5 Government 2680(k) barring exception re of the FTCA under because covery occurring injuries the overseas, District Court’s ruling dismissing be affirmed. the suit should holding the that neither Gon- reversed,
The Ninth Circuit
required
Liability
substitution
Reform Act
zalez Act nor the
suit or otherwise
the
as
defendant
the Government
liability.
F.
2d 650
Dr.
immunized Marshall from
(1989).6
Liability
respect
the
Act,
to the
Reform
With
employee
gave
subject
against the
whose act or omission
the same
matter
employee. Any
civil
other
against
rise to the claim or
the estate
relating
damages arising out of
to the
proceeding
money
action
or
employee
employee’s
pre-
estate
subject
or the
same
matter
the
regard
act or
occurred.” 28 U. S. C.
cluded
to when the
omission
without
2679(b)(1).
applies
proceedings
§8(b),
Liability Reform Act
to all
Pursuant to
the
4666-4566,
following
note
pending on the date of its enactment.
Stat.
applies in
Respondents
dispute
§2679.
do not
that the Act
28 U. C.S.
this case.
Attorney
re
§6
General is
the
Under
the
(the
employee)
certify
original
quired
that the
defendant
the
employment
office or
at the time of
acting
“was
within
of his
§2679(d)(1).
claim arose.”
S. C.
Once
of which the
28 U.
incident out
be
occurs,
action “shall
deemed
certification
be
States shall
substi
[under
FTCA]
United
United States
Attorney
Ibid.
party
Where
General
tuted as the
defendant.”
certification,
employee
permits
seek
to issue such
refuses
acting
employ
he
of his
judicial
was
within
determination
2679(d)(3).
ment.
6Following
Act’s enactment and the Eleventh Cir
(1989),
Soballe,
'We
certiorari,
I—I hH Liability “[t]he Section 5 of the Reform Act states that remedy” against the Government under the FTCA “is exclu- withdrew reliance on the Gonzalez Act as a basis affirming for the District However, ruling. Marshall, Court’s appearing se, Dr. pro requested the Ninth Circuit to applicability address the of the Gonzalez Act. See Brief for Following United States n. 3. Soballe, rationale of Newman v. supra, the Ninth Circuit held that the Gonzalez Act made the FTCA the remedy only exclusive malpractice committed military stateside medical foreign-based and that the Act left per subject sonnel like Dr. malpractice liability. Marshall 2d, See 885 F. 651-654. Because the Government did not raise the Gonzalez Act issue petition certiorari, its we portion need not address of the lower ruling court’s that denied Dr. Marshall under the Gonzalez Act. any event, question is rendered irrelevant in this case our hold ing that the Reform Act confers Dr. immunity. Marshall First, Fifth and Tenth Circuits all have held that the Re applies form Act exception precludes even when an FTCA liability against Scannell, (CA1 Government. Nasuti v. 802, 810, 906 F. 2d n. 14 (CA5 1990); Carlson, Mitchell v. F. 1990); 2d 128 Lutz, Aviles v. 887 F. (CA10 1989). 2d 1046 The Eleventh Circuit has opposite posi taken the Soballe, tion. supra, See Newman v. at 971. *6 money proceeding any or for dam- civil action sive of other reemphasizes employee” ages against that and then . the . . money damages proceeding “[a]ny for action or other civil precluded.” employee against 28 U. is S. C. . ... . . the 2679(b)(1). § question in this case whether, is The central §5 remedy,” pre- designating “exclusive as the FTCA the recovery against a Government an alternative mode cludes employee FTCA itself not a in the does cases where recovery. means of § provisions that 5 in the Reform confirm
Two recovery mode of tort the exclusive makes FTCA employee pre- itself even when FTCA of a Government § liability. The is 6 of Act. As first cludes Government Attorney § ap- supra, General see n. directs noted, employee certify propriate tort a Government cases acting his within the em- as defendant was named alleged ployment tort. Section 6 when he committed proceed provides same manner the suit “shall also pursuant [the filed the United States as exceptions subject FTCA] the limitations and and shall be §2679(d)(4) (em- applicable C. to those actions.” U. S. added). “exceptions” expressly desig- phasis ofOne these — §2680 barring provision Gov- nated as under —is foreign country.” liability “arising in a for torts ernment 2680(k). § exceptions” language in 6 The “limitations persuades us rec- Reform Act of the required ognized that the substitution United States as employ- in tort suits filed Government defendant plaintiff’s recovery a tort ees sometimes foreclose would altogether. interpretation of our arises the ex-
The second basis
liability
press
employee
preservations
5. Section 5 de-
exclusive
torts
that the FTCA
clares
of their
committed
Government
(1)
brings:
injured plaintiff
employment
Bivens
ac-
when an
seeking damages
tion,8
for a constitutional violation
(2)
employee;
an action under a federal stat-
recovery against
ute that authorizes
a Government em-
2679(b)(2).
ployee.
Congress’ express
creation of
exceptions
these two
convinces us that the Ninth Circuit
inferring
exception
preserve
erred in
a third
that would
tort
for Government
when a suit is barred
Congress explicitly
under the FTCA. “Where
enumerates
*7
exceptions
general prohibition,
excep-
certain
to a
additional
implied,
tions are not to be
in the absence of evidence of a
contrary legislative intent.” Andrus v. Glover Construction
(1980).9
Co., 446
608,
U. S.
616-617
8See Bivens v.
Agents,
Six Unknown Fed. Narcotics
ability Valley that the Tennessee Au- Act provides 9 of the Section (TVA) defendant suit be as shall substituted thority within the “act[ions] from arising a TVA against employee 2(b)(1), §C. 16 U. S. his office or employment,” 831c— of any is “ex[c]Iusive TVA against and that §831c-2(a)(l). 16 U. S. C. proceeding,” other civil action or U. C. FTCA, to the S. exception Under the TVA for any be held liable may not §2680(0, the Government Circuit activities. The Ninth the TVA’s arising claim from must have § 9 that from enactment of inferred li- employees not shield TVA § 5 would expected was precluded the United States where suit ability TVA 2680(i). only And because 2d, 885 F. at 655. See grant immunity, for a special were out singled that all other Government court concluded where the FTCA precludes must remain subject ibid. suit the United States. misunderstanding rests on a The Ninth Circuit’s analysis *8 terms, in- § 9 does not By § of 9. its purpose and effect §5 immunity than affords vest with more employees TVA § 9 Rather, provides merely other employees. 831c-2(a)(l), § 16 U. S. C. rather against TVA, that a suit § States, 2679(b)(1), 28 U. S. C. than the United against one for the employment-related shall be exclusive the Liability This of adjustment torts of TVA employees. sensible, for al- Reform Act’s scheme immunity perfectly be held liable may the United States not though sued in its TVA sue and be activities, “[m]ay itself TVA’s §831c(b). have read Courts name.” 16 U. S. C. corporate the TVA liable to suit making this or be clause as “sue sued” right to initiate an action. It does preserved procedural rights narrow substantive of suggest that Act did not recovery.
169 subject exceptions. g., Peoples tort, See, in to certain e. Huntsville, Bank Meredith, Nat. 812 F. Ala. v. 2d of (CA11 1987); Valley Authority, Queen 684-685 v. Tennessee (CA6 1982), F. 2d 80, denied, 85 460 cert. U. S. 1082 (1983). § explanation plausible In our view, the most 9 is establishing that, view of lower court cases the TVA’sown liability independent Congress tort FTCA, decided to clarify brought that the TVA should be substituted suits against employees. TVA § light, supports
Seen enactment of no infer- §5 way immunity ence either on the when suit precluded the United States is under the FTCA. plain § language legislative history Both the of 9 indicate provision give that the was intended to TVA § degree immunity gives same as 5 other Government em- ployees. § Compare 2679(b)(1), 28 U. S. C. with 16U. S. C. §831c-2(a)(l). (1988) (re- Cong. also Rec. 31054 Heflin). marks of Sen. But because § bearing upon conferred to is the 9 has no same, protecting whether viewed 5 as Government em- ployees when suit the United States is precluded under the FTCA.10
I—I HHHH A support respondents below, the decision advance rea- soning upon by They not relied the Ninth Circuit. invoke principle statutory interpretation the well-established implied repeals g., See, should be avoided. e. Randall v. note, moreover, provision We within 9 par included §5 employee liability allel to that under preserving for Bivens actions. 831c-2(a)(2). Likewise, § language parallel See U. S. C. 9 contains *9 exceptions” language §6. the “limitations and within See 16 U. S. C. 831c-2(b)(4) § (indicating § against that action TVA under 9 “shall be sub ject to the exceptions applicable against limitations and to” actions generally). TVA
170 (1986) Loftsgaarden, (“‘repeals by implica- 661 647, 478 U. S. omitted)). (citations Respondents tion are not favored’” Liability construction of the that the Government’s contend precluding tort Dr. Marshall results Reform § repeal implied 1089, 10 U. Act, an of the Gonzalez S. C. against personnel. regulates suits medical which disagree. We immunity statutes of a series
The Gonzalez Act is one designed prior Act that were to the enacted protect from the certain Government classes by liability.11 personal mili- For torts committed threat of employment, scope tary personnel within the of their against provides a suit the Government the GonzalezAct remedy. 10 U. S. C. the exclusive under the FTCA is 1089(a).12 11 response passed in to the decision in Henderson Act was (1974), Bluemink, D. F. 399 which held App. S. C. 511 2d 167 U. immunity al Army not have absolute from suit for physician did scope employment. of his leged malpractice committed within (1976). 94-1264, en Rep. p. pre-immunity statutes were No. 4 Similar S. Government, including employed by the acted for other medical Ad the Veterans’ Department, see U. S. C. those the State Service, ministration, §4116, Health see 38 U. and the Public see S. C. shield Defense 233. Another statute was enacted to U. S. C. attorneys legal malpractice. S. C. Department claims of See U. pro Finally, superseding expressly repealed § 1054. before it was Act, S. C. the Federal Drivers U. visions of (1982 §2679(b)-(e) ed.), remedy for torts FTCA the exclusive made the operating motor vehicle committed while employment. within 1089(a)provides: Section provided FTCA] for [the “The the United States death, negligent or personal injury, including caused damages for dentist, nurse, or any pharmacist, wrongful physician, or act omission of . . . ... the armed forces supporting personnel or paramedical other employment. . . shall hereaf- acting of his duties or while within proceeding by reason of the action or ter be exclusive of other civil dentist, nurse, pharmacist, subject physician, matter same
171 Two of the Appeals, including Courts Ninth Circuit in the decision have held below, that Gonzalez Act’s of grant ab- immunity solute from suit military medical protects only per- sonnel who commit torts within the United States and not committing those torts 2d, abroad. See 885 F. at 652-654; (CA11 1989). Soballe, Newman v. F. 2d In reaching 1089(f) conclusion, these courts relied on largely Title permits which heads to agency indemnify or insure foreign-based military for torts in committed abroad while employ- 1089(f) ment.13 Ninth and Eleventh Circuits construe to limit available to protection foreign-based military medical personnel insurance, indemnification or instead of is available to otherwise them when sta- tioned within the United States.14 Under this interpreta- tion, the Gonzalez Act not preclude respondents would suing Dr. Marshall in a directly United States court. Re- spondents contend that extending Liability Reform Act to foreign-based military medical personnel therefore would ” effect an of their implied repeal “Gonzalez remedy. Brief for 46. 8, 33, Respondents (or paramedical supporting personnel person) or other estate such whose act gave proceeding.” or omission rise to such action or 1089(f) provides: Section agency
“The head of
may,
concerned
the extent
the head of
agency
appropriate,
concerned considers
hold harmless or
li-
ability
(a)
any person
insurance for
in
damages
described
subsection
personal
death,
injury,
including
person’s negligent
caused
such
wrongful
performance
dental,
act or
medical,
omission
or related
health care
(including
investigations)
functions
clinical studies and
while
acting
person’s
within
person
such
duties if
assigned
foreign country
. .
.
.”
(CA10
1977)
Kelly,
See also
Jackson
557 F. 2d
740-741
dictum).
(CA5
(endorsing
Schultz,
this view in
But cf. Powers v.
statute. Under construction of the tary and other Government already protected by statutes, who were other see n. 11, supra, generous immunity cannot now benefit from the more Liability under view, available Reform Act. our Congress’ purpose with construction inconsistent en- acting Reform Act. plain language Reform Act’s makes no dis- pre-Act
tinction between who are covered under immunity statutes and those who are not. Section 5 states respect “any employee with that, to tort committed employment, the Government” within the the FTCA 2679(b)(1) provides remedy. the exclusive See 28 U. S. C. added). §5 (emphasis language in No or elsewhere in the purports phrases “any employee *12 statute restrict respondents urge, only employees Government,” as to reach protected liability by not another statute. When Con- gress immunity wanted to limit the available under Liability expressly, pre- Act, Reform it did so as it did employee serving liability for Bivens actions and for actions brought authorizing recovery against under a federal statute 2679(b)(2); § employee. supra, the individual see also drafting 166-167.
clearly pre-Act was aware of the statutes. See (1988) Rep. (citing p. H. R. these 100-700, statutes, includ- Act). ing the Gonzalez We must conclude that if protection employ- under the had intended to limit the Act to pre-Act statutes, ees not covered under the it would have much.16 said as
C Finally, respondents argue that their claim falls within one express exceptions of the two under the Report The House Committee echoes the all-encompassing language remedy’ provision of the statute: “The ‘exclusive ... is intended to substi solely permissible tute the United States as the in all defendant common against law tort actions Federal who acted of em added). 100-700, Rep. (emphasis ployment.” H. R. No. at 6 for a “brought suits violation permitting Act —the exception under which such action the United States of a statute of is otherwise authorized.” [employee] an individual against 2679(b)(2)(B). assert that satisfied they have Respondents They in this contend exception. conditions set forth both (1) Dr. Marshall is “authorized” claim against (2) the Gonzalez Act per- Act and that because the Gonzalez in certain negligence mits doctors suits against a constitute claims of negligence claims of instances, need decide a whether Act “violation.” We Gonzalez or law be state could foreign claim under brought tort Act, for we that re- the Gonzalez find deemed authorized a in- malpractice claim argument second spondents’ —that “a of” the Gonzalez Act —is without merit. volves violation du- imposes any obligations Act or Nothing the Gonzalez Consequently, physi- ties of upon military physicians. care state under committing malpractice foreign cian allegedly Act. law does not “violate” Gonzalez to the unless According dissent, disagrees. dissent 2679(b)(2)(B) preserve “was intended to Post, at 183. without remedy, essentially purpose.” it was assertion attempts square the dissent never However, 2679(b)(2)(B), permits only which language with the plain for a employees “brought those suits statute States under which such violation United (em- is otherwise [employee] authorized” *13 added). At no does the dissent how a indicate phasis point under state law malpractice foreign physician’s Act. a “violation” of the Nor can could be Gonzalez deemed merely by invoking obstacle the canon dissent avoid every provision that law should construction statutory n. 8. It is that post, be and true given meaning. (and neither fails to disclose we nor the history the legislative discover) cause(s) to what of action dissent attempted has it enacted 2679(b)(2)(B), when preserve sought of the a “violation” but suit Gonzalez alleging malpractice Act cannot have been one of them. The Gonzalez Act simply does not impose any duties of care upon military physicians that could be violated.
The dissent resists this conclusion because it is impressed by “Congress’ general intent, expressed the hear- throughout and the House ings that Report, [the Act] not curtail any remedies of tort pre-existing victims.” Post, at 183. truth is, however, The the legislative history reveals considerably less solicitude for tort plaintiffs’ rights than the dissent As we have suggests. already noted, see n. 9, the House supra, Report expressly that, warned under the Liability Act, claim “any government is precluded by exceptions” [FTCA] obviously —which would include claims barred by the exception for causes of ac- tion abroad —“also is arising precluded employee.” added). H. R. 100-700, at 6 Rep. (emphasis This congres- sional intent was clearly implemented Act, of the we are it obliged give effect.
IV For the reasons above, set forth the judgment of the Court reversed, Appeals and the case is remanded for further consistent proceedings with this opinion.
So ordered. Justice Stevens, dissenting.
The of Defense Department (Department) provides medi- cal and dental care for families of service personnel stationed (f) abroad. Subsection authorizes the Department its health care indemnify personnel serving overseas in the event are sued they for malpractice.1 1 The Gonzalez also Malpractice known as the Medical Immunity- Act, authorizes indemnification as follows: “(f) agency designee head of the concerned or his may, to the extent that he or designee appropriate, his deems hold harmless or liabil- (a) ity any person insurance for in subsection damages described personal injury, death, including person’s caused negligent or *14 (f) pursuant the
Regulations make to subsection issued party in a tort action.2 the interest such States real United remedy malpractice regulations with a victims nomi- the in cases which States, even the United may no assets. have defendant nal, individual pa- remedy protects and both doctors This Gonzalez arising malpractice out of the claims tients involved performance for American care services of health medical, dental, or related performance wrongful or omission act investigations) and while (including clinical studies care functions health assigned person’s person if such is to duties acting within the of such depart- with other than a Federal foreign country or for service detailed are as ment, instrumentality or if the circumstances such are agency, or persons against the likely preclude third United States to the remedies of 1346(b) damage injury.” or of title for described in section 1089(f). amended, 1986(f), 10 U. S. C. Stat. as arrangement available the indemnification Another makes same subsection Space Administration. See the Aeronautics to members of National §2458a(f). 42 U. Stat. S. C. Department’s regulations: According Navy to (b) extends [the Act] Reference “6. Extent of Protection. by making possessions suit coverage States and its within United Tort Claims Act exclusive under the Federal United States injured the Federal Tort Claims Act does not party. for Where (as, example, giving acts rise to the claim occurred out- apply for where the provided by allowing Secretary States), coverage the United side provide liability or insurance health care Defense to hold harmless personnel. (a), Secretary Authority. By reference of Defense
“7. Exercise of Navy Secretary authority to hold harmless or delegated personnel. persons All provide liability Navy health care re- insurance (a) (b) paragraph 4 above and in subsection of reference are ferred to in wrongful hereby resulting negligent or damages held harmless for acting assigned of duties and acts or omissions while within with duty foreign country, in a or detailed for service other than Federal likely preclude remedy are such as are agency, if the circumstances provided Federal Tort Claims as against the United States under the (f) (b).” Navy, Department of SECNAV subsection reference (Mar. 14, 1978), 6300.3, App. to Brief for Re- INSTRUCTION JAG:14C spondents 2a-3a.
personnel dependents assigned duty foreign and their in Employees Liability countries. The Federal Reform and Act) Compensation (Liability Tort Act of today says nothing special the Court construes about this yet, today’s situation; effect of decision is to render sub- (f) virtually meaningless. section of the GonzalezAct There nothing legislative history of the Act to indicate that intended this result. On the contrary, strong legislative there is in evidence both his- 5(b)(2)(B) tory, §§ language and in the and of the statute, preserve pre-existing intended to remedies. point by examining sepa- This is clarified the two statutes rately chronological and in order.
I principal purpose succinctly The of the Gonzalez Act is preamble. stated in its It was enacted “[t]o remedy against for an exclusive the United upon malpractice States suits based medical on the part personnel of medical forces, the armed the De- Department, Intelligence Agency, fense the Central Space the National Aeronautics and Administration, and purposes.” for other 90 Stat. 1985. purpose, Congress simply
To achieve its followed the precedent previous set four amendments to the Federal (FTCA), Tort Claims Act none of which had curtailed pre-existing remedies.3 Report As the explained: Senate
“By making the remedy, Federal Tort Act an Claims exclusive a claimant is forced to sue the damages government United States for rather than a employee personal in his capacity. At least four statutes make the Federal Tort Claims remedy protect Act an exclusive order to a cer- government tain class of employee personal liability. (Public 87-258) “In 1961 the Government Law Driver’s Act made the Federal Tort remedy Claims Act damages the exclusive for sustained aas negligent operation result of the aof motor vehicle a federal driver act- ing within the employment. his protect The result was to federal FTCA, as those
For claims not covered arising foreign Act author- countries, the Gonzalez claims to be insured or indemnified ized medical supra. By arrange- See n. Federal Government. personal Congress protected Government doctors from ment, performed in the course of overseas for services preserved the common-law duties, time, and at the same malpractice. American victims of interpretation disagree with does not Court *16 Ap- or with the Court of 170-171, at ante, see respondent’s prior peals’ claim viable was conclusion Liability Reform Act 1988. See of the enactment question Liability Re- is whether the ante, Thus, at 172. malpractice arising remedy for claims Act withdrew the form expressly pre- that had been of the United States outside (f) by of the GonzalezAct. served subsection HH h-4 response Liability Act a direct to this was (1988). 292 Erwin, 484 S. U. Court’s decision Westfall liability arising capacity from tort from in their individual operation of motor vehicles. 1965, patterned
“In after the Government Driv- Congress a bill enacted personnel of the Administra- protected er’s Act which medical Veterans’ acting liability malpractice from when within tion individual tort 89-311). (Public employment of their Law Act the legislation making the Federal Tort Claims exclusive “Similar personnel medical malpractice enacted in 1970to immunize was liability personal arising perform- out of the Public Health Service from 91-623). (Public ance of medical Law their duties year recently, Foreign Act of fiscal “More Relations Authorization (Public 94-350) of the De- 1977 Law immunized State malpractice. partment personal for medical from these four statutes are Each statute respects “In all essential similar. legislative law obtain the rights recognized the common abolished old employees from in their object protecting certain federal suit individual capacities. 94-1264, Rep. p. S. No. after these statutes.” “H. R. 3954 is modeled
(1976). among Ap- we resolved a conflict Westfall, Courts of peals question on the whether conduct federal officials discretionary being in nature, must be as well as within the employment, absolutely of their before the conduct is liability. immune state-law tort Id., at 295. We held unanimously nondiscretionary conduct was not entitled immunity. to such Id., 297. Liability
Congress protect enacted Reform Act to all personal liability federal from the risk of that was thought Congress to have been created was Westfall. particularly employees, concerned that lower level rank likely carrying and file “whoare least to exercise discretion in among likely out duties,” were those who were most Rep. be affected R. decision. H. No. 100- Westfall (1988). p. Section of the contains a detailed Congress’ enacting statement of reasons for the statute.4 purpose summarized its as follows: 100-694, §2 4 In of Pub. L. Stat. set forth the find ings purposes Reform Act: *17 “(2) States, through Act, respon- The United the Federal Tort Claims injured persons employees sible to for the common law torts of its in the historically same manner in recognized which the common law has the responsibility employer employees of an for torts committed its within scope employment. the of their
“(4) judicial decisions, Recent particularly and the decision of the United Supreme Erwin, States Court in seriously Westfall v. have the eroded immunity law previously common tort employees. available to Federal “(5) employees This erosion of of Federal from common law liability tort has created an immediate involving prospect per- crisis of liability protracted personal litigation sonal and the threat of tort for the Federal entire workforce.
“(7) opinion Erwin, Supreme its in Westfall v. Court indicated position that the is in the best to determine the extent to which personally torts, Federal should be liable for common law and legislative consideration of this matter would be useful.” 102 Stat. 4563-4564, following note 28 U. S. C. 2671. protect em- purpose to Federal of this Act
“It is the personal torts ployees for common law from employment, while of their within committed injured by providing persons common law torts appropriate remedy employees with an Federal following note the United States.” Stat. added). (emphasis C. U. S. anything legisla-
Notably, nor statement, neither that part history any intent on the of Con- reveals tive pre-existing to gress remedies available limit the employees.5 federal of torts committed victims recurring throughout hearings were themes There two gave Act. One rise the bill that on legislation to curtail was not intended theme was that already any victims available to tort remedies employees,6 was the other federal and sponsors legislation, Grassley, explained: one of the Senator know, my colleagues generally FTCA over the has worked well “As expeditious compensation per- fair past providing and four decades employees. bill, by injured the common law torts of Federal This sons FTCA, covering Westfall-type under assures that victims of com- cases fairly compensated. At the law torts Federal will be mon time, protection provides employee per- it a needed measure of same liability. sonal emphasize President, like to that this bill have “Mr. I would does not Al- the so-called Bivens cases or Constitutional tort claims. effect on concern I have though this too is an area of to me—and introduced correc- today past pass impact bill that we on legislation in the has no tive —the cases, brought against to be which can continue individual Govern- these (1988). Cong. Rec. 29933 ment officials.” 134 6Thus, Department representative of Justice testified: nothing protection do more than extend the now en- “H. R. 4358 would doctors, drivers, attorneys employees. and DoD to all It joyed federal persons injured by treatment for equitable will ensure consistent also *18 conduct, regard to employee without the status of the whose ac- federal alleged injury.” Hearings on H. 4358 al. are to have caused R. et tions the Subcommittee on Administrative Law Governmental Rela- before sought protect all federal from suit sub- stituting the United States for the individual tortfeasor as responsible party normally substitution that would —a injured party longer worry benefit the who would no have to about whether he or she judg- would be able to collect the supported by Department ment. The bill was of Justice representing employees. and two unions federal only Members of articulated their intent to preserve during hearings, remedies by amending original but also reinforced that intent bill 2679(b)(2). 5(b)(2), to include 28 U. S. C. As amended, 5(b)(2) provides: “(2) (1) Paragraph apply does not extend or to a civil employee of the Government— “(A) brought which is for a violation of the Constitu- tion of the United States, or
“(B) brought which is for a violation of a statute of the United States under which such action an indi- §2679(b) vidual is otherwise authorized.” 28 U. S. C. (2). §5(b)(2)(A), Congress explicit throughout
As to made hearings its intent to exclude constitutional violations from coverage.7 Depart- Reform Act’s The Justice ment endorsed that view: Judiciary,
tions of the House Sess., Committee on the Cong., 100th 2d (1988) (hereinafter Hearings). House point during was reiterated others the hearings and debate. See (“In id., all, way, way at no no does measure infringe or dimin- individuals”) (statement any legal rights ish Rep. Wolf); id., at 44 (“[W]e protect want to without diminishing rights (statement anyone might injured”) who Frank); be Cong. Chairman (1988) (“Other acts, Rec. remedies under other Rights Civil are all”) (statement Frank). not affected at of Chairman 7See, 58, g., Hearings e. House 195. *19 [Liability important emphasize the Re- “It also is injury apply only alleging Act] to cases would form By by ordinary common law tortious conduct. caused just we mean not causes conduct, tortious commonlaw upon several or case law the the ‘common’ action based codifiedin state statutes of action but also causes states, recovery negligence, permit as, exam- in- ple, wrongful The term does not statutes. death Act] [the is not intended to and Reform clude, apply allege violations constitutional to, cases that commonly rights, are known as Bivens cases. or what [the alleging will, Li- torts under constitutional Persons pursue remedy ability free to a Act], remain employee they if so choose.” individual Hearings House 78. explained Department of constitu- issue
The Justice and one that was af- one, tional torts was a controversial because fected Court’s decision Westfall Westfall at 79. Members of Id., to common-lawtorts. was limited Congress be torts would not en- stressed that constitutional compassed legislation, thus, there was no need to During g., 40, e. at 195. See, id., the issue. address suggestion hearings, that an however, there was some a a tort and constitutional vi- could involve both common-law g., response See, id., 173. to this e. olation. 5(b)(2)(A) apparently Congress to make ex- concern, added along: plicit it assumed all that victims constitu- what had pursue would remain free to tional violations they employee if chose to do so. the individual 5(b)(2)(B), Congress explana- provided specific §to no As pre- general concern with inclusion, tion other than its for its serving pre-existing remedies available to victims of torts all employees. Just as added committed federal 5(b)(2)(A) would not to ensure constitutional torts be included within 5(b)(2)(B) pre-
similarly, added to ensure that it must have protected statute would not be af- remedies fected as well. did not need to add this amend- §5(b)(2)(A), ment, more than it needed to add because just part, as are, constitutional torts for the most outside the similarly statutory realm of common-lawtorts, violations are *20 also outside the realm of common-lawtorts. Nevertheless, Congress’ general this action is consistent with ex- intent, pressed throughout hearings Report, the and in the House any pre-existing that it not curtail remedies of tort victims. preserve Unless the amendment was intended to the Gonza- remedy, essentially purpose lez Act it was without result —a Congress clearly could not have intended. reading Liability The Court’s of the Reform Act makes 5(b)(2)(B) superfluous.8 says Indeed, the Court never 5(b)(2)(B) statutory pro- what kind of violation is meant to any specific guidance. tect, nor does To turning avoid the Court’s result of this subsection sur- into plusage, accomplish purpose it should be construed to the repeatedly hearings, any identified which is to avoid interpretation pre- of the Act limit that would purpose unequivo- common-lawremedies. This was cally Report explains: identified the House on the bill. It previously right “Under H. R. 4612, no one who had the to right.” Rep. initiate a H. lawsuit will lose that R. No. 100- 700, at 7.9 approach today The to the Court’s runs counter well-established rule meaning
that should be attributed subsection of a to each statute. See Morton, United States (1984); Sands, 467 U. see also 2A S. C. (rev. 1984) §46.06, Statutory p. on Sutherland Construction 4th ed. (“A given is provi statute should be construed so that effect to all of its sions, part inoperative superfluous, so that no will be insignifi void or cant”) (footnotes omitted). today attempts explain Report’s
9 The Court language to House away claiming appears in a pertaining imple because it section to says nothing plaintiffs mentation of the it more than that those who pending permitted pursue had actions would be them substituting the ante, 167-168, employee. for the individual at n. 9. However, language appears in Report similar also the House before happen during period. discussion of what would According the transition Report, law, change to the House Reform Act “does not analysis section-by-section description of 5 The the view that it is consistent with Reform Act plaintiff in to a available to describe was intended malpractice arising in for- action for cause of common-law specifically eign (f) subsection authorized countries that was Report The states House Act. Gonzalez remedy provided in that the make it clear section “would legislation torts or to causes not extend constitutional does brought against specifically an in- to be authorized of dividual (emphasis at Id., States.” United another statute of added). remedy” argues has not “Gonzalez Court “[t]he impliedly repealed Act func- because
been solely protect from mal- tions rights malprac- practice liability; it in favor of does not create strictly plaintiffs.” 172. This accurate Ante, tice *21 (f) implemented as Act, the because by of Gonzalez subsection plaintiffs malpractice regulation, provide an im- with did party portant remedy against as the real in the United States they previously Moreover, have.10 this interest that did not Courts, respect availability to interpreted by as the with the of other rights action; expand or diminish recognized of nor does it either causes 100-700, p. Rep. H. No. other statutes.” R. 7 established under Federal (1988). just language was concerned not Such indicates that it, preserving procedural rights, as the Court would have but also with n with rights. preserving substantive 10 (f) ig be recognized The Circuit that subsection could not Eleventh (f) was written into the Gonzalez we are nored: “Because subsection 969, Soballe, give v. 871 974 required meaning.” to it Newman F. 2d (1989). acknowledged, dicta, in The albeit that subsec Tenth Circuit also (f) important remedy: provided the an tion of Gonzalez Act (f)] assumption to a for purpose is method [subsection “The of damage against military government responsibility of for claims its given foreign personnel arising medical care countries in medical from employment. protect military to scope of Behind it is desire their ever-present danger personal . . personnel from . medical compensating malpractice for preserving while a for victims their means military personnel practicing . . . injuries. granting Instead of medical immunity for within the foreign countries from suit acts absolute express pres- provision of the to an Gonzalez Act amounted 5(b)(2)(B) remedy. of a Because ervation common-law virtually meaningless,11 Liability Reform Act otherwise is preserve remedy. I believe it should be construed doing justification Otherwise, so, without Liabil- provision ity silently repealed this Reform Act has Act. Gonzalez holding,
Under the Reform Act has Court’s closed the door to all federal and state courts American malpractice victims of health care sta- federal legislative purpose is achieved tioned abroad.12 No already protected holding personnel are from because these personal liability by indemnity Act and the Gonzalez regulation. only significant holding The effect of this deprive important potential plaintiffs class of of their remedy. Respondents, pre-existing judicial plain- and other precluded pursuing pre- like are now their them, tiffs employment, Congress government protect to have the them elected through approach indemnification or insurance. The effect rather remedy malpractice by than absolute a to victims of is to ensure country.” personnel assigned foreign Jackson v. (1977). 735, Kelly, F. 2d 740-741 ante, court, possibility foreign litigation The theoretical see legislative history n. never of either the was even mentioned Act or the Reform Act. only respondents available to after the that remains today private bill. possibility Court’s decision is the of a Per Officeof (1990). Richmond, Management Ironically, 496 U. S. sonnel *22 Court, by of reading, its restrictive now leaves families service injured foreign in who have been federal health workers countries with private compensation; little choice but to seek in order to receive bills very policy Congress sought that to avoid when it enacted the is the FTCA enactment, years ago. Congress At the FTCA’s over the time of rectify system “unduly sought shortcomings to a that was burden of Congress” “unjust to the claimants” it some to and was because did injured recovery right matter parties not “accord to a as a of but base[d] may grace.” Rep. R. award that be made on considerations H. (1945). Sess., Cong., Congress 79th intended the No. 1st FTCA system” replace existing system private to “establish a uniform Id., at 3. bills. allegedly negligent an claims common-law though working the doctor is indemni- abroad, even
doctor I that Con- cannot believe fied Federal Government. persuaded gress that I am therefore that result. intended 5(b)(2)(B) way prevents it from in a that be read should meaningless appendage being nothing and allows more than a preserving pre-existing purpose of it to fulfill its intended claims.13 (1988), said that we 484 U. S. Erwin, In Westfall guidance
“Congress position for the in the best inquiry empirical complex highly into whether ab- and often particular and we in a context” is warranted solute suggested governing “[legislated the immu- standards that nity in tort actions involved state-law of federal Today, Court, at 300. decid- Id., be useful.” would ing nullity, Congress’ ais once a handiwork that section guidance.” step “provide again invites respectfully I dissent. its response dissent, argument has that to this Court restated ante, at 174. Marshall Act. See As Dr. did not “violate” Gonzalez course, is, pure correct. It nevertheless grammar,
matter of the Court Liability Reform Act fails to reading true remains that this literal (1) legislative purpose is questions: two What served de answer critical victims, respondents, priving malpractice such as (2) 6(b)(2)(B) remedy, what remedy? preserve §If then was does assumption between purpose? If forced to choose its legis imperfect benign purpose identified grammar to achieve used inadvertently history assumption it achieved a heartless and an lative history, difficulty I have no choos purpose legislative disclaimed ing the former.