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Torts — Sovereign immunity — FTCA

U.S. Supreme Court

Civil

Torts — Sovereign immunity — FTCA

The Gonzalez Act direction in 10 U.S.C. 1089(e) abrogates the FTCA’s intentional tort exception and therefore permits suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment.

To determine whether the Government’s immunity is waived for batteries, the Court looks to §1089(e)’s language, “giving the ‘words used’ their ‘ordinary meaning.’ ” Moskal v. United States, 498 U. S. 103. Levin claims that the operative clause of §1089(e), which provides that the FTCA’s intentional tort exception “shall not apply” to medical malpractice claims, is qualified by the provision’s introductory clause “[f]or purposes of this section,” which confines the operative clause to claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. The Government, in contrast, argues that §1089(e)’s introductory clause instructs courts to pretend, “[f]or purposes of” the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. The choice between the parties’ dueling constructions is not a difficult one. Section 1089(e)’s operative clause states, in no uncertain terms, that the FTCA’s intentional tort exception, §2680(h), “shall not apply,” and §1089(e)’s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act. Had Congress wanted to adopt the Government’s counterfactual interpretation, it could have used more precise language, as it did in §1089(c), a subsection adjacent to §1089(e).

663 F. 3d 1059, reversed and remanded.

11-1351 Levin v. U.S.

Ginsburg, J.

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