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  • Exclusive Remedy Of FTCA












  • Exclusive Remedy Of FTCA

    UNITED STATES OF AMERICA, ET AL., PETITIONERS V. MARCUS S. SMITH, ET AL.

    No. 89-1646

    In The Supreme Court Of The United States

    October Term, 1989

    The Solicitor General, On Behalf Of The United States Of America And William Marshall, Jr., M.D., Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Ninth Circuit In This Case.

    Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

    PARTIES TO THE PROCEEDING

    The petitioners are Dr. William Marshall, Jr., an Army physician, the original defendant below, and the United States of America, which was substituted as defendant by order of the district court.

    The respondents, plaintiffs below, are Marcus S. Smith, Hildegard U. Smith, and Dominique Smith.

    TABLE OF CONTENTS
    Question Presented
    Parties To The Proceeding
    Opinions below
    Jurisdiction
    Statutory provisions involved
    Statement
    Reasons for granting the petition
    Conclusion

    OPINIONS BELOW

    The opinion of the court of appeals (App., infra, 1a-14a) is reported at 885 F.2d 650. The oral opinion and order of the district court (App., infra, 15a-18a) are unreported.

    JURISDICTION

    The judgment of the court of appeals was entered on September 26, 1989. A petition for rehearing was denied on January 25, 1990 (App., infra, 19a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

    STATUTORY PROVISIONS INVOLVED

    The relevant provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563-4567, and of the Gonzalez Act, 10 U.S.C. 1089, are set forth in an appendix (App., infra, 20a-31a).

    QUESTION PRESENTED

    Whether the Federal Employees Liability Reform and Tort Compensation Act of 1988 -- which provides that the exclusive remedy for torts committed by federal employees acting within the scope of their employment is a suit against the United States under the Federal Tort Claims Act -- is inapplicable when an exception to the Federal Tort Claims Act forecloses an award of damages against the United States.

    STATEMENT

    1. In Westfall v. Erwin, 484 U.S. 292 (1988), this Court held that federal employees are immune from liability for common law torts committed within the scope of their employment only if the relevant acts or omissions are discretionary in nature. The Court added, however, that Congress was "in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context" and that "(l)egislated standards governing the immunity of federal employees involved in state-law tort actions would be useful." Id. at 300. In response, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Reform Act), Pub. L. No. 100-694, 102 Stat. 4563-4567. The Act's declared purpose is "to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." Section 2(b), 102 Stat. 4564.

    To that end, the Reform Act makes the Federal Tort Claims Act the exclusive remedy for state-law torts committed by federal employees acting within the scope of their employment. Section 5 of the Reform Act provides (28 U.S.C. 2679(b)(1)):

          The remedy against the United States provided by (the FTCA, 28
          U.S.C. 1346(b), 2672) for injury or loss of property, or
          personal injury or death arising or resulting from the negligent
          or wrongful act or omission of any employee of the Government
          while acting within the scope of his office or employment is
          exclusive of any other civil action or proceeding for money
          damages by reason of the same subject matter against the
          employee whose act or omission gave rise to the claim or against
          the estate of such employee.  Any other civil action or
          proceeding for money damages arising out of or relating to the
          same subject matter against the employee or the employee's
          estate is precluded without regard to when the act or omission
          occurred.
    

    The Act is triggered by a certification that a federal employee named as a defendant in a civil action "was acting within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. 2679(d). The Attorney General (or his designate) is authorized to issue such certifications. 28 U.S.C. 2679(d)(1)-(2). If the Attorney General declines to certify that an employee was acting within the scope of his or her employment, the employee may petition the court in which the suit is pending for such a certification. 28 U.S.C. 2679(d)(3). When the Attorney General or a court has made such a certification, the suit is deemed an action against the United States; the United States is substituted for the employee as the defendant; and, if the suit is pending in state court, it is removed to federal district court. 28 U.S.C. 2679(d)(1)-(3).

    The Reform Act makes clear that once the United States has been substituted as the defendant, it may invoke all defenses that would have been available to it if the suit had initially been brought against it under the Federal Tort Claims Act. Upon certification that an employee was acting within the scope of his or her employment, an action initiated against the employee "proceed(s) in the same manner as any action against the United States filed pursuant to section 1346(b) of (Title 28) and (is) subject to the limitations and exceptions applicable to those actions." 28 U.S.C. 2679(d)(4). Similarly, in addition to authorizing the government to assert judicial or legislative immunity if it would have been available to the employee originally named as the defendant, Section 4 of the Reform Act recognizes the government's right to "any other defenses to which the United States is entitled." 28 U.S.C. 2674.

    2. This case is a medical malpractice action arising out of services performed by petitioner William Marshall, Jr., M.D., in his capacity as a military physician. At the time of the events giving rise to this action, respondent Marcus Smith was a United States Army Sergeant stationed in Italy. In 1982, his wife, respondent Hildegard Smith, was admitted to the United States Army hospital in Vicenza, Italy, where she gave birth to the Smiths' son, Dominique. Dr. Marshall participated in the delivery. Respondents' complaint alleges that, while acting within the scope of his duties as a military physician, Dr. Marshall was negligent and that this negligence resulted in severe injury to Dominique.

    Respondents commenced this action in 1987 in the United States District Court for the Central District of California. The complaint named Dr. Marshall as the sole defendant and based federal jurisdiction on diversity of citizenship. Invoking the Gonzalez Act, 10 U.S.C. 1089 (App., infra, 28a-31a), a statute predating the Reform Act that regulates the remedies available for malpractice by military physicians, the United States moved for an order substituting it for Dr. Marshall as the defendant and dismissing the action under 28 U.S.C. 2680(k). That FTCA exception bars suit against the United States on "(a)ny claim arising in a foreign country." The district court granted the motion. App., infra, 15a-18a.

    3. While the case was pending in the court of appeals, Congress enacted the Reform Act. Section 8(b) made the Act's provisions applicable to "all claims, civil actions, and proceedings pending on * * * the date of (its) enactment." App., infra, 25a. Accordingly, in a supplemental brief filed with the court of appeals, the United States argued that the Reform Act required substitution of the United States for Dr. Marshall as the defendant and dismissal under 28 U.S.C. 2680(k) -- the same disposition as the district court had ordered upon the authority of the Gonzalez Act. /1/ In the same filing, based upon a review of the Gonzalez Act prompted by the Eleventh Circuit's decision in Newman v. Soballe, 871 F.2d 969 (1989), the government withdrew its reliance upon that statute. /2/

    The court of appeals reversed, holding that neither the Gonzalez Act nor the Reform Act mandated the substitution of the United States for Dr. Marshall as the defendant in the action. App., infra, 1a-14a.

    1. With respect to the Gonzalez Act, the court observed that, "(r)ead alone, section 1089(a) does not reveal whether its provisions apply to cases in which sections 1346(b) and 2672 of the FTCA do not provide an alternative remedy." App., infra, 4a. However, the panel continued, the "plain meaning" of Section 1089(f) -- which authorizes indemnification of military physicians under specified situations (among them, the situation in which the doctor "is assigned to a foreign country") -- is that "physicians will continue to be personally liable in the * * * situations specified." App., infra, 5a. The court found additional support for this conclusion in cases from other courts and in the legislative history of the Gonzalez Act. Id. at 6a-9a. We do not seek further review of this ruling.
    2. The court of appeals also held that the Reform Act is "inapplicable to this case." App., infra, 10a. The court noted that Section 5 of the Reform Act, 28 U.S.C. 2675(b)(1), provides that "(t)he remedy against the United States" conferred by the FTCA "is exclusive of any other civil action or proceeding for money damages . . . against the employee whose act or omission gave rise to the claim" and that Section 2680(k) would preclude an action against the United States on petitioners' claim. App., infra, 10a-11a. Under these circumstances, the court reasoned, petitioners "have no remedy against the United States" under the FTCA and, consequently, the Reform Act "does not operate to provide Dr. Marshall with immunity." Id. at 11a.

    The court found further support for this conclusion in the provisions of the Act dealing with employees of the Tennessee Valley Authority. In the court's view, those provisions extended to TVA employees immunity that had been withheld from government employees involved in tort claims arising in foreign countries. App., infra, 11a-12a.

    The court described the Reform Act's legislative history as "somewhat contradictory." App., infra, 12a. On the one hand, the court understood the Act's declared purpose and statements from the House Report and individual members of Congress to suggest that the Reform Act was not intended to withdraw any rights that an injured plaintiff might previously have had to pursue relief from an individual federal employee. Ibid. On the other hand, the court referred to a passage in the House Report stating that "suits against Federal employees are precluded even where the United States has a defense which prevents an actual recovery" and that "any claim against the government that is precluded by the exceptions set forth in (28 U.S.C. 2680) is precluded against an employee (or) his or her estate." Id. at 12a-13a (quoting H.R. Rep. No. 700, 100th Cong., 2d Sess. 6-7 (1988)). Dismissing the report as "internally inconsistent" (App., infra, 13a), the court adhered to its construction of the statutory language (ibid.).

    4. The court denied a petition for rehearing and suggestion of rehearing en banc addressed to the Reform Act's application to this case. App., infra, 19a.

    REASONS FOR GRANTING THE PETITION

    The court of appeals held that the Reform Act does not apply -- and thus exposes federal employees to suit in their individual capacity -- whenever an exception to the Federal Tort Claims Act would preclude an award of damages against the United States. This ruling cannot be reconciled with the text of the Reform Act, its stated purpose, or legislative history addressing the precise point at issue. It also conflicts squarely with decisions of several other courts of appeals.

    The question on which the Ninth Circuit has parted from other circuits is of great importance to the federal government. The Reform Act was passed because Congress found that the threat of individual liability resulting from this Court's decision in Westfall v. Erwin, supra, was impeding the ability of the government to perform its responsibilities. The Ninth Circuit's interpretation of the Reform Act would renew that threat not only with respect to acts of federal employees in foreign countries, but also as to a wide variety of other potential claims, including those arising from such torts as defamation, misrepresentation, and interference with contractual relations, from the handling of mail, and from customs and tax matters. There are more than a half million civilian federal employees in the Ninth Circuit who are immediately exposed to liability by the court of appeals' decision. That decision is also likely to undercut the smooth and certain operation of the Reform Act in those circuits that have not yet passed on its applicability in this context.

    1. a. The Ninth Circuit limited its analysis of the language of the Reform Act to the first sentence of Section 5 of the statute, 28 U.S.C. 2679(b)(1). That sentence states that "(t)he remedy against the United States" provided by the Federal Tort Claims Act for personal injury or property damage arising from "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee * * * or against the estate of such employee." App., infra, 22a. In the court's view, this provision applies only when the FTCA provides a "remedy" against the United States that is not precluded by an exception to the FTCA. Id. at 11a. This reading of the text is strained on its own terms, but in any event is foreclosed by other provisions of the Act. /3/

    The very next sentence in Section 5 of the Reform Act directly contradicts the Ninth Circuit's construction. It provides that "(a)ny other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred." Thus, the first sentence cannot be read to preserve the possibility of an action against the individual employee when suit against the United States is barred; such an action, which necessarily arises out of the "same subject matter" as an action against the United States, "is precluded." Read as a whole, Section 5 of the Act permits only one interpretation. A person injured by a federal employee acting within the scope of his or her employment has only one recourse: the "remedy" provided by the Federal Tort Claims Act in an action against the United States -- whatever the extent of that remedy may be.

    Two other provisions of the Act confirm this interpretation. Under Section 6, whenever the Attorney General or a court has certified that a federal employee who has been named as defendant in a suit was acting within the scope of his or her office or employment, "any (such) action or proceeding * * * shall proceed in the same manner as any action against the United States filed pursuant to (28 U.S.C. 1346(b)) and shall be subject to the limitations and exceptions applicable to those actions." 28 U.S.C. 2679(d)(4). The "limitations and exceptions" applicable to FTCA actions, of course, must include the exceptions enumerated in 28 U.S.C. 2680. As Section 4 of the Reform Act, 28 U.S.C. 2674, confirms, "(w)ith respect to any claim under (28 U.S.C. 2671-2680)," including those in which the United States has been substituted pursuant to a certification that an employee was within the scope of his employment, the United States may assert -- in addition to any judicial and legislative immunity available to the employee involved -- "any other defenses to which the United States is entitled." /4/

    As both the Fifth and Tenth Circuits have concluded, the Reform Act's text compels the conclusion that -- subject to the exceptions stated in Section 5 of the Act, 28 U.S.C. 2679(b)(2) -- the statute applies to all tort suits against federal employees who have acted within the scope of their employment, whether or not a claim falls within an exception to the FTCA. Mitchell v. Carlson, 896 F.2d 128, 134-135 (5th Cir. 1990); Aviles v. Lutz, 887 F.2d 1046, 1049 (10 Cir. 1989). See p. 15, infra. The Reform Act makes a suit under the FTCA the exclusive remedy for injuries resulting from the actions of federal employees; precludes any other suit arising from the same subject matter; provides that the suit against the United States shall be subject to the limitations and exceptions of the FTCA; and preserves any defenses available to the United States in such actions. These provisions, most of which were not addressed in the court of appeals' opinion, foreclose that court's construction.

    b. The Reform Act's legislative history, and legislative findings enacted as part of the Act, also speak to the precise point in question. The House Report states (H.R. Rep. No. 700, supra, at 6-7 (emphasis added)): /5/

          The "exclusive remedy" provision of Section 5 is intended to
          substitute the United States as the solely permissible defendant
          in all common law tort actions against Federal employees who
          acted in the scope of employment.  Therefore, suits against
          Federal employees are precluded even where the United States has
          a defense which prevents an actual recovery.  Thus, any claim
          against the government that is precluded by the exceptions set
          forth in Section 2680 of Title 28, U.S.C. also is precluded
          against an employee in (sic) his or her estate.  See Edelman v.
          Federal Housing Administration, 382 F.2d 594 (2d Cir. 1967);
          Safeway Portland E.F.C.U. v. Federal Deposit Insurance
          Corporation, 506 F.2d 1213 (9th Cir. 1974);  Vantrease v. United
          States, 400 F.2d 853 (6th Cir. 1968);  Powers v. Schultz, 821
          F.2d 295 (5th Cir. 1987).
    

    Each of the cited cases held that a statute making an action against the United States the exclusive remedy for tort claims arising from the actions of specified individuals or agencies applied even when an exception to the Federal Tort Claims Act foreclosed any relief. The most authoritative legislative history unequivocally confirms the Reform Act's plain meaning.

    This interpretation of the statute -- that federal employees acting within the scope of their employment have complete immunity from state-law tort claims, including those to which the United States has a defense -- is also consistent with the basic concerns underlying the enactment of the Reform Act. As we have noted, the Act was a response to this Court's decision in Westfall v. Erwin, supra. In findings enacted as part of the statute (App., infra, 20a), Congress declared that for many years prior to that decision, "Federal employees (had) been protected from personal common law tort liability by a broad based immunity" and thus "the Federal Tort Claims Act (had) served as the sole means for compensating persons injured by the tortious conduct of Federal employees." Congress understood the Westfall decision, however, to have "seriously eroded the common law tort immunity previously available to Federal employees." Ibid.

    Noting the detrimental consequences for the government of personal exposure to tort liability, as well as this Court's suggestion that legislation would be "useful" (App., infra, 20a), Congress undertook to "remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment" (H.R. Rep. No. 700, supra, at 4; see id. at 2). The Act's stated purpose was "to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." App., infra, 21a. Under the Ninth Circuit's interpretation, the Act would fall short of this clearly expressed purpose. /6/

    2. The Ninth Circuit's holding is in square conflict with decisions from other circuits. In Aviles v. Lutz, supra, the Tenth Circuit held that the Reform Act required the substitution of the United States for employees who had been sued for defamation and interference with contractual rights -- even though suit against the United States was barred by an FTCA exception for such claims, 28 U.S.C. 2680(h). The court explained that the continued pursuit of the action against the individual defendants was "foreclosed by the plain language of (28 U.S.C. 2679) and its legislative history." 887 F.2d at 1049.

    Similarly, in Mitchell v. Carlson, supra, the Fifth Circuit held that an action alleging assault and battery could not be pursued against an individual employee, even though suit against the United States was barred by 28 U.S.C. 2680(h). The court stated (896 F.2d at 134):

          (T)he mandate in Section 5 of the (Reform Act) is clear.  An
          action against a federal employee who has been certified as
          acting in the scope of her employment must proceed exclusively
          against the United States under the FTCA * * * .  We must accept
          the clear mandate of the law.  Since there is no remedy for
          assault and battery in the FTCA, Congress intended to leave a
          plaintiff such as Mitchell without a remedy for injuries
          sustained as a result of a federal employee's alleged assault
          and battery while in the course of employment.
    

    In reaching this conclusion, the Fifth Circuit cited Aviles v. Lutz, supra, with approval. It also noted that its decision was in conflict with the Ninth Circuit's decision in this case; after reviewing the Ninth Circuit's reasoning, the Mitchell court "decline(d) to follow the Ninth Circuit case." 896 F.2d at 136. /7/

    Two other decisions, from the Fifth and Eleventh Circuits, have applied the Reform Act to cases brought by employees against co-employees; in those cases, the remedy against the government is limited to benefits under the Federal Employees Compensation Act, 5 U.S.C. 8101 et seq. See Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989); Lunsford v. Price, 885 F.2d 236, 237-239 (5th Cir. 1989) (suit against TVA employees). These decisions, which held that injured claimants who had no remedy in tort against the government were also barred from suing individual employees, are inconsistent with the reasoning of the court of appeals in this case.

    Finally, in an analogous case, Springer v. Bryant, No. 89-7272 (Apr. 2, 1990), the Eleventh Circuit held that Section 9 of the Reform Act required dismissal of a wrongful death action commenced against TVA employees. Even though under Alabama law such an action is deemed punitive in character, and thus foreclosed by the TVA's sovereign immunity from punitive damages, the court held that suit could not be pursued against the employees. It observed that the purpose of the Reform Act was "to create absolute immunity for federal employees who, within the scope of their employment, commit common law torts." /8/

    3. The certain and uniform application of the Reform Act is of great importance to the federal government. Congress enacted that legislation less than a year after this Court's decision in Westfall v. Erwin, supra, having found that the absence of complete immunity for federal employees had "created an immediate crisis involving the prospect of personal liability" and that this prospect would "seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts." Pet. App. 21a.

    The Ninth Circuit's holding severely undercuts the efficacy of the solution that Congress devised for this crisis. There are a number of exceptions to FTCA liability. For example, 28 U.S.C. 2680(b) and (c) preclude the imposition of liability on the United States for claims arising out of the miscarriage of mail, the collection of taxes, and the detention of goods in custody. Under the court of appeals' analysis, individual postal or customs workers will be exposed to the threat of suits in their individual capacity for such matters, based on simple negligence. Similarly, federal employees would be subject to personal suit on claims of the types enumerated in 28 U.S.C. 2680(h), such as misrepresentation, defamation, or interference with contract rights.

    Exposing employees to suits of this type will do much to restore the threat that the Reform Act was designed to remove. Given the advantages to the ordinary plaintiff of bringing suit against the government, it is fair to assume that most individuals who sue federal employees do so because there is a legal obstacle to an action against the United States. The Ninth Circuit's refusal to apply the Reform Act to suits of that type thus would deprive federal employees of protection where it is most needed. And, as Congress noted when it enacted the Reform Act, the threat of these suits falls most heavily on "'rank and file' workers" who cannot establish that their acts were discretionary within the meaning of Westfall v. Erwin, supra. H.R. Rep. No. 700, supra, at 3.

    Unless further review is granted, the immediate effects of the court of appeals' ruling are likely to be severe. Over half a million civilian federal workers are employed in the states comprising the Ninth Circuit. /9/ Those employees now face the prospect of personal liability in circumstances where their counterparts in other states would enjoy the protection of the Reform Act. Moreover, in those circuits that have not passed upon the applicability of the Reform Act, the decision in this case seems likely to inspire filings against individual employees and to interfere with the Reform Act's effective operation. The Reform Act's procedures are designed to assure that if individual employees are sued, the question whether they have acted within the scope of their employment will be quickly and surely resolved and the United States will be substituted at the outset of the litigation. The conflict created by the Ninth Circuit's decision will interfere with the smooth and certain application of those provisions.

    Finally, this is an issue on which nationwide uniformity is particularly important. There is no reason why a federal employee's exposure to personal liability should turn on the place of employment.

    4. Because the Ninth Circuit held that the Reform Act does not apply to cases in which the foreign tort exception bars a suit against the United States, it did not reach the question whether the Act applies to military physicians who are also subject to the provisions of the Gonzalez Act. In Newman v. Soballe, supra, the Eleventh Circuit concluded that the Reform Act does not apply in that context; it explained that "(a)s a military physician, Dr. Soballe is specifically protected by the Gonzalez Act and is therefore not among those federal employees affected by the Westfall decision or the (Reform Act)." 871 F.2d at 971. This potential alternative basis for affirming the court of appeals judgment does not affect the suitability of this case for further review.

    First, the court of appeals did not dispose of the case on that basis. It did not hold that the Reform Act was superseded by the Gonzalez Act; rather, it construed the Reform Act to be inapplicable on its own terms. For the reasons set forth above, that interpretation of the Reform Act warrants this Court's attention on its own merits.

    Second, the Reform Act should not be construed to draw a distinction between military medical personnel (and others to whom statutes similar to the Gonzalez Act apply) and other federal employees. /10/ By its terms, Section 5 of Reform Act, 28 U.S.C. 2679(b)(1), extends to "any employee of the Government," a group that unquestionably includes military physicians. The legislative history suggests that Congress believed it was conferring the same protection on federal employees generally that military medical employees already enjoyed. H.R. Rep. No. 700, supra, at 4. It would thus be ironic and unwarranted now to hold that those medical personnel enjoy less protection from individual actions than their counterparts in the federal service. /11/

    Moreover, there is a provision of the Reform Act that specifically defines those remedies against individual employees that are excluded from its coverage. Under 28 U.S.C. 2679(b)(2), the Reform Act is not applicable to actions against individuals for violation of constitutional rights or to actions "brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized." In this case, Dr. Marshall has not been sued for a "violation" of the Gonzalez Act, and thus the action is not authorized by the express limitations on the Reform Act. See H.R. Rep. 700, supra, at 7. Particularly in view of the fact that the Reform Act specifies categories of cases to which it does not apply, there is no room for the implied exception found by the Eleventh Circuit in Newman v. Soballe, supra.

    CONCLUSION

    The petition for a writ of certiorari should be granted.

    Respectfully submitted.

    KENNETH W. STARR

    Solicitor General

    STUART M. GERSON

    Assistant Attorney General

    DAVID L. SHAPIRO

    Deputy Solicitor General

    STEPHEN L. NIGHTINGALE

    Assistant to the Solicitor General

    BARBARA L. HERWIG

    JOHN F. DALY

    Attorneys

    APRIL 1990

    /1/ Under the provisions of Section 6 of the Reform Act, 28 U.S.C. 2679(d)(1), substitution of the United States is normally based on an administrative certification that "the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose." In the present case -- in which the district court had ordered substitution pursuant to the Gonzalez Act prior to enactment of the Reform Act -- the Department of Justice inadvertently neglected to issue a formal certification under Section 2679 during the pendency of the case in the courts below. A certification has recently been issued. It has never been disputed in this case that Dr. Marshall's actions were within the scope of his employment as an Army physician.

    /2/ In Newman, a case decided after the entry of the district court's judgment in this case, the Eleventh Circuit held that the Gonzalez Act did not require substitution of the United States for a military physician sued for negligence committed abroad. The court relied principally on 10 U.S.C. 1089(f), which authorizes indemnification of military doctors held liable for malpractice committed abroad; in the court's view, this provision reflected an intention on the part of Congress to permit lawsuits against individual doctors when an FTCA exception foreclosed suit against the United States. See 871 F.2d at 971-977. Although there was a conflict among the courts of appeals on this question, compare Jackson v. Kelly, 557 F.2d 735, 740-741 (10th Cir. 1977); Pelphrey v. United States, 674 F.2d 243, 246 (4th Cir. 1982) (Gonzalez Act or equivalent statute does not require substitution of United States where FTCA exception is applicable), with Powers v. Schultz, 821 F.2d 295 (5th Cir. 1987) (Gonzalez Act requires substitution and dismissal when suit against the United States is foreclosed), the government determined that it would not continue to invoke the Gonzalez Act in cases of this kind, and would thereafter rely solely on the Reform Act.

    Dr. Marshall filed a request pro se that the court of appeals nevertheless consider the Gonzalez Act issue. See Request of William Marshall, Jr., In Propria Persona, Sept. 11, 1989.

    /3/ See United States v. Morton, 467 U.S. 822, 828 (1984) ("We do not * * * construe statutory phrases in isolation; we read statutes as a whole.").

    /4/ The court of appeals suggested that Section 9 of the Reform Act, 102 Stat. 4566, which deals with suits against TVA employees, supports its interpretation of the statute. However, it is clear that Section 9 merely provides protection for employees of the TVA parallel to that conferred on employees of the United States. Under that Section, an action against the TVA is the exclusive remedy for injuries allegedly inflicted by TVA employees acting within the scope of their employment; the TVA is responsible for issuing certifications on the scope of employment question; the TVA is substituted as the defendant; the action proceeds subject to limitations and exceptions applicable to suits against the TVA; and the TVA may assert any defenses to which it is entitled. Because Section 9 tracks the provisions of the Reform Act applicable to the United States (except that it provides for an exclusive remedy against the TVA, rather than the United States), it does not limit, expressly or by implication, the scope of those more general provisions. As the sponsor of the amendment adding Section 9 to the Reform Act explained, it "merely provides that the same protections enjoyed by Federal employees should be enjoyed by TVA employees." 134 Cong. Rec. S15,559 (daily ed. Oct. 12, 1988) (remarks of Sen. Heflin). The Fifth Circuit has rejected the inference that the Ninth Circuit drew from Section 9. Mitchell v. Carlson, 896 F.2d 128, 135 n.7 (5th Cir. 1990).

    /5/ This House Report was the only committee report accompanying the Reform Act. The Act was discussed only briefly on the floor of each House. See 134 Cong. Rec. H4718-H4719 (daily ed. June 27, 1988); id. at H4804 (daily ed. June 28, 1988); id. at S15,597-S15,600 (daily ed. Oct. 12, 1988); id. at H10,677-H10,678 (daily ed. Oct. 20, 1988).

    /6/ None of the excerpts that the court of appeals quoted from the Act's legislative history supports that court's interpretation. For example, although the Act makes clear that its purpose includes providing persons injured by federal employees with "an appropriate remedy against the United States," the remainder of the Act and its legislative history establish that Congress considered the FTCA, subject to its exceptions and limitations, to constitute an "appropriate" (and fully sufficient) remedy. In its legislated findings, Congress determined that for many years "the Federal Tort Claims Act (had) served as the sole means for compensating persons injured by the tortious conduct of Federal employees" and that Westfall v. Erwin, supra, would "diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employee torts." App., infra, 20a, 21a. Similarly, the Ninth Circuit erred in relying on a statement in the House report that "no one who previously had the right to initiate a lawsuit will lose that right," H.R. Rep. No. 700, supra, at 7. That statement appears in a discussion of the effective date provisions of the Act; read in its context, it refers to provisions preserving claims that might otherwise have been jeopardized by the immediate applicability of such FTCA procedural requirements as the filing of an administrative claim. In Mitchell v. Carlson, 896 F.2d at 136, the Fifth Circuit reviewed the materials cited by the Ninth Circuit in this case and observed that "(i)solated language found scattered throughout the legislative history is insufficient persuasion that Congress intended to frustrate the very purpose of the (Reform Act), to protect its employees from the distraction and burden of litigation based upon their employment activities."

    /7/ Two other courts of appeals have applied the Reform Act to cases in which FTCA exceptions bar suit against the United States, albeit without discussing the question whether the Act mandates that result. See Jordan v. Hudson, 879 F.2d 98 (4th Cir. 1989) (discretionary function exception of 28 U.S.C. 2680(a)); Moreno v. Small Business Administration, 877 F.2d 715 (8th Cir. 1989) (claims of defamation and interference with contract, both of which are within the exception of 28 U.S.C. 2680(h)).

    /8/ District courts in two other circuits have also reached results consistent with our position. See McDonald v. Hassard, 89-2 U.S. Tax Cas. (CCH) Paragraph 9561 (D. Me. July 13, 1989) (ordering substitution despite applicability of tax and customs exception of 28 U.S.C. 2680(c)); Gogek v. Brown University, 729 F. Supp. 926 (D.R.I. 1990) (same; contract interference claim barred by 28 U.S.C. 2680(h)); Verma v. United States, No. 87-2294 (D.D.C. July 24, 1989) (same; recovery barred by Feres doctrine).

    Other district courts have, like the Ninth Circuit, refused to apply the Reform Act where the result would be dismissal of the suit. Nasuti v. United States, No. 89-774-N (D. Mass. July 25, 1989), appeal pending, No. 89-1830 (1st Cir.); Dagnan v. Gouger, No. CIV-1-88-452 (E.D. Tenn. July 18, 1989). The Dagnan opinion was subsequently vacated pursuant to a settlement.

    In Newman v. Soballe, 871 F.2d 969 (1989), the Eleventh Circuit held that neither the Reform Act nor the Gonzalez Act required the substitution of the United States for a military physician sued for alleged malpractice abroad. There is language in the opinion that is consistent with the Ninth Circuit's interpretation of the Reform Act in this case; the Eleventh Circuit stated that the Reform Act "only applies in situations where the FTCA itself would apply" and that the FTCA does not apply to cases subject to an FTCA exception such as the foreign-tort exception, 28 U.S.C. 2680(k). 871 F.2d at 971. However, particularly in light of the Eleventh Circuit's subsequent decisions in Springer v. Bryant, supra, and Sowell v. American Cyanamid, supra, the Newman decision is now most fairly read to turn on a narrower, alternative ground -- that employees covered by the Gonzalez Act are not affected by the Reform Act. See 871 F.2d at 971.

    We address the potential applicability of that ground to this case below. See pp. 20-22, infra.

    /9/ See United States Office of Personnel Management, Federal Civilian Workforce Statistics: Biennial Report of Employment by Geographic Areas 21 (Dec. 31, 1988). This figure does not include military personnel stationed in those states, who would also be affected by the court of appeals' ruling.

    /10/ In addition to the Gonzalez Act, which covers military medical personnel, there are comparable statutes covering medical personnel of the State Department, 22 U.S.C. 2702, the Veterans Administration, 38 U.S.C. 4116, NASA, 42 U.S.C. 2458a, and the Public Health Service, 42 U.S.C. 233. An analogous statute protects legal personnel of the Department of Defense from legal malpractice liability. 10 U.S.C. 1054.

    /11/ When the House Report on the Reform Act noted the legislation's intention that "any claim against the government that is precluded by the exceptions set forth in (28 U.S.C. 2680) is also precluded against an employee (or) his or her estate," it cited Powers v. Schultz, supra, with approval. In that case, the Fifth Circuit held -- contrary to the Ninth Circuit's ruling and the government's concession in this case -- that the Gonzalez Act "makes suit against the United States the only remedy for negligent acts of a military physician acting within the scope of his duties, regardless of whether suit is foreclosed on other grounds, be it the absence of liability * * * , or the foreign-country exception to the FTCA, as here." 821 F.2d at 298.

    Whether or not the Committee Report was "correct" in its understanding of the Gonzalez Act, it confirms the intention of the Reform Act to create a uniform regime for all federal employees, including those in Dr. Marshall's position in this case. It was not Congress's intention to confer on a plaintiff a greater right to sue a government employee for injury occurring overseas if the injury was caused by an Army surgeon than that plaintiff would have if the injury was caused by an Army truck driver.

    APPENDIX



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