United States v. Smith (499 U.S. 160)/Dissent Stevens

Justice STEVENS, dissenting.

The Department of Defense (Department) provides medical and dental care for families of service personnel stationed abroad. Subsection (f) of the Gonzalez Act authorizes the Department to indemnify its health care personnel serving overseas in the event that they are sued for malpractice. Regulations issued pursuant to subsection (f) make the United States the real party in interest in such a tort action. The regulations provide victims of malpractice with a remedy against the United States, even in cases in which the nominal, individual defendant may have no assets.

This Gonzalez Act remedy protects both doctors and patients involved in malpractice claims arising out of the performance of health care services for American military personnel and their dependents assigned to duty in foreign countries. The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Liability Reform Act) that the Court construes today says nothing about this special situation; yet, the effect of today's decision is to render subsection (f) of the Gonzalez Act virtually meaningless. There is nothing in the legislative history of the Liability Reform Act to indicate that Congress intended this result. On the contrary, there is strong evidence in both the legislative history, and in the language of §§ 2 and 5(b)(2)(B) of the statute, that Congress intended to preserve pre-existing remedies. This point is clarified by examining the two statutes separately and in chronological order.

* The principal purpose of the Gonzalez Act is succinctly stated in its preamble. It was enacted

"[t]o provide for an exclusive remedy against the United     States in suits based upon medical malpractice on the part of      medical personnel of the armed forces, the Defense      Department, the Central Intelligence Agency, and the National      Aeronautics and Space Administration, and for other      purposes." 90 Stat.1985.

To achieve its purpose, Congress simply followed the precedent set by four previous amendments to the Federal Tort Claims Act (FTCA), none of which had curtailed any pre-existing remedies.

For claims not covered by the FTCA, such as for those claims arising in foreign countries, the Gonzalez Act authorized medical personnel to be insured or indemnified by the Federal Government. See n. 1, supra. By that arrangement, Congress protected Government doctors from personal liability for services performed in the course of their overseas duties, and at the same time, preserved the common-law remedy for American victims of medical malpractice.

The Court does not disagree with this interpretation of the Gonzalez Act, see ante, at 170-171, or with the Court of Appeals' conclusion that respondent's claim was viable prior to the enactment of the Liability Reform Act in 1988. See ante, at 172. Thus, the question is whether the Liability Reform Act withdrew the remedy for malpractice claims arising outside of the United States that had been expressly preserved by subsection (f) of the Gonzalez Act.

The Liability Reform Act was a direct response to this Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). In Westfall, we resolved a conflict among the Courts of Appeals on the question whether conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state-law tort liability. Id., at 295, 108 S.Ct., at 583. We held unanimously that nondiscretionary conduct was not entitled to such immunity. Id., at 297, 108 S.Ct., at 584.

Congress enacted the Liability Reform Act to protect all federal employees from the risk of personal liability that was thought to have been created by Westfall. Congress was particularly concerned that lower level employees, the rank and file "who are least likely to exercise discretion in carrying out their duties," were among those who were most likely to be affected by the Westfall decision. H.R.Rep. No. 100-700, p. 3 (1988), U.S.Code Cong. & Admin.News 1988, p. 5946.

Section 2 of the Liability Reform Act contains a detailed statement of Congress' reasons for enacting the statute. Congress summarized its purpose as follows: "It is the purpose of this Act 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."  102 Stat. 4564, note following 28 U.S.C. § 2671     (emphasis added).

Notably, neither that statement, nor anything in the legislative history of the Act, reveals any intent on the part of Congress to limit the scope of pre-existing remedies available to victims of torts committed by federal employees.

There were two recurring themes throughout the hearings on the bill that gave rise to the Liability Reform Act. One theme was that this legislation was not intended to curtail any existing remedies already available to tort victims against federal employees, and the other was that Congress sought to protect all federal employees from suit by substituting the United States for the individual tortfeasor as the responsible party-a substitution that would normally benefit the injured party who would no longer have to worry about whether he or she would be able to collect the judgment. The bill was supported by the Department of Justice and two unions representing federal employees.

Members of Congress not only articulated their intent to preserve the scope of existing remedies during the hearings, but also reinforced that intent by amending the original bill to include § 5(b)(2), 28 U.S.C. § 2679(b)(2). As amended, § 5(b)(2) provides:

"(2) Paragraph (1) does not extend or apply to a civil     action against an employee of the Government-

"(A) which is brought for a violation of the     Constitution of the United States, or

"(B) which is brought for a violation of a statute of     the United States under which such action against an      individual is otherwise authorized." 28 U.S.C. § 2679(b)(2).

As to § 5(b)(2)(A), Congress made explicit throughout the hearings its intent to exclude constitutional violations from the Liability Reform Act's coverage. The Justice Department endorsed that view: "It also is important to emphasize the [Liability Reform     Act] would apply only to cases alleging injury caused by      ordinary common law tortious conduct.  By common law tortious      conduct, we mean not just causes of action based upon the      "common" or case law of the several states, but also causes      of action codified in state statutes that permit recovery for      negligence, such as, for example, wrongful death statutes.      The term does not include, and [the Liability Reform Act] is      not intended to apply to cases that allege violations of      constitutional rights, or what commonly are known as Bivens      cases.  Persons alleging constitutional torts will, under      [the Liability Reform Act], remain free to pursue a remedy      against the individual employee if they so choose." House     Hearings 78.

The Justice Department explained that the issue of constitutional torts was a controversial one, and one that was not affected by the Court's decision in Westfall because Westfall was limited to common-law torts. Id., at 79. Members of Congress stressed that constitutional torts would not be encompassed by this legislation, and thus, there was no need to address the issue. See, e.g., id., at 40, 195. During the hearings, however, there was some suggestion that an action could involve both a common-law tort and a constitutional violation. See, e.g., id., at 42, 127, 173. In response to this concern, Congress apparently added § 5(b)(2)(A) to make explicit what it had assumed all along: that victims of constitutional violations would remain free to pursue a remedy against the individual employee if they chose to do so.

As to § 5(b)(2)(B), Congress provided no specific explanation for its inclusion, other than its general concern with preserving all pre-existing remedies available to victims of torts committed by federal employees. Just as Congress added § 5(b)(2)(A) to ensure that constitutional torts would not be included within the scope of the Liability Reform Act, similarly, it must have added § 5(b)(2)(B) to ensure that preexisting remedies protected by a statute would not be affected as well. Congress did not need to add this amendment, any more than it needed to add § 5(b)(2)(A), because just as constitutional torts are, for the most part, outside the realm of common-law torts, similarly statutory violations are also outside the realm of common-law torts. Nevertheless, this action is consistent with Congress' general intent, expressed throughout the hearings and in the House Report, that it not curtail any pre-existing remedies of tort victims. Unless the amendment was intended to preserve the Gonzalez Act remedy, it was essentially without purpose-a result Congress clearly could not have intended.

The Court's reading of the Liability Reform Act makes § 5(b)(2)(B) superfluous. Indeed, the Court never says what kind of statutory violation § 5(b)(2)(B) is meant to protect, nor does Congress provide any specific guidance. To avoid the Court's result of turning this subsection into surplusage, it should be construed to accomplish the purpose repeatedly identified in the hearings, which is to avoid any interpretation of the Act that would limit the scope of preexisting common-law remedies. This purpose was unequivocally identified in the House Report on the bill. It explains: "Under H.R. 4612, no one who previously had the right to initiate a lawsuit will lose that right." H.R.Rep. No. 100-700, at 7, U.S.Code Cong. & Admin.News 1988, p. 5951.

The description of § 5 in the section-by-section analysis of the Liability Reform Act is consistent with the view that it was intended to describe the remedy available to a plaintiff in a common-law cause of action for malpractice arising in foreign countries that was specifically authorized by subsection (f) of the Gonzalez Act. The House Report states that the section "would make it clear that the remedy provided in this legislation does not extend to constitutional torts or to causes of action specifically authorized to be brought against an individual by another statute of the United States." Id., at 8, U.S.Code Cong. & Admin.News 1988, p. 5952 (emphasis added).

The Court argues that the "Gonzalez Act remedy" has not been impliedly repealed because "[t]he Gonzalez Act functions solely to protect military medical personnel from malpractice liability; it does not create rights in favor of malpractice plaintiffs." Ante, at 172. This is not strictly accurate because subsection (f) of the Gonzalez Act, as implemented by regulation, did provide malpractice plaintiffs with an important remedy against the United States as the real party in interest that they did not previously have. Moreover, this provision of the Gonzalez Act amounted to an express preservation of a common-law remedy. Because § 5(b)(2)(B)of the Liability Reform Act is otherwise virtually meaningless, I believe it should be construed to preserve that remedy. Otherwise, without any justification for doing so, the Liability Reform Act has silently repealed this provision of the Gonzalez Act.

Under the Court's holding, the Liability Reform Act has closed the door to all federal and state courts for American victims of malpractice by federal health care personnel stationed abroad. No legislative purpose is achieved by that holding because these personnel are already protected from personal liability by the Gonzalez Act and the indemnity regulation. The only significant effect of this holding is to deprive an important class of potential plaintiffs of their pre-existing judicial remedy. Respondents, and other plaintiffs like them, are now precluded from pursuing theirpre- existing common-law claims against an allegedly negligent doctor working abroad, even though the doctor is indemnified by the Federal Government. I cannot believe that Congress intended that result. I am therefore persuaded that § 5(b)(2)(B) should be read in a way that prevents it from being nothing more than a meaningless appendage and allows it to fulfill its intended purpose of preserving pre-existing claims.

In Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), we said that "Congress is 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 we suggested that "[l]egislated standards governing the immunity of federal employees involved in state-law tort actions would be useful." Id., at 300, 108 S.Ct., at 585. Today, the Court, by deciding that a section of Congress' handiwork is a nullity, once again invites Congress to step in and "provide guidance."

I respectfully dissent.