Steven Levin v. USA, et al
Filing
FILED OPINION (DIARMUID F. O'SCANNLAIN, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) AFFIRMED. Judge: DFO , Judge: RCT Authoring, Judge: MDS . FILED AND ENTERED JUDGMENT. [7977144]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN ALAN LEVIN,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; FRANK
M. BISHOP, LCDR, MC, USNR
3855,
Defendants-Appellees,
and
ROBERT WRESCH,
Movant-Appellee.
No. 09-16362
D.C. No.
1:05-cv-00008
OPINION
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted October 11, 2011*
Honolulu, Hawaii
Filed November 23, 2011
Before: Diarmuid F. O’Scannlain, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tallman
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Steven Alan Levin, Agat, Guam, pro se plaintiff-appellant.
Daniel Tenny, United States Department of Justice, Civil
Division, Washington, D.C., for the defendant-appellee.
OPINION
TALLMAN, Circuit Judge:
After his unsuccessful cataract surgery, Plaintiff-Appellant
Steven Levin brought a claim for battery against the United
States government and his United States Navy surgeon. The
United States invoked the Gonzalez Act, 10 U.S.C. § 1089,
immunizing individual military medical personnel from malpractice liability. We consider for the first time in our circuit
whether § 1089(e) of the Gonzalez Act waives the government’s sovereign immunity for common law battery claims.
We hold that it does not, and we affirm the district court’s dismissal of Levin’s complaint for lack of subject-matter jurisdiction.
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I
At some point prior to 2003, Levin was referred to the Ophthalmology Department of the U.S. Naval Hospital on Guam
for evaluation of a cataract in his right eye. Lieutenant Commander Frank M. Bishop, M.D., performed the evaluation. He
suggested a surgical procedure called “phakoemulsification
with intraocular lens placement.”
After discussing the procedure with Dr. Bishop, Levin gave
his informed consent. He signed two consent forms, one entitled “Request for Administration of Anesthesia and for Performance of Operations and Other Procedures,” and another
entitled “Consent for Anesthesia Service.” Dr. Bishop performed the eye surgery in March 2003.
Although Levin had previously given his informed consent
to the procedure in writing, he claims he twice attempted
orally to withdraw that consent just before the surgery. Levin
suffered complications following the procedure, the full
extent of which are unclear. Both sides agree that Levin
requires continuing treatment and faces uncertain prospects
for success.
Levin filed this suit in the United States District Court for
the District of Guam, alleging negligent medical malpractice
and battery. Levin cited the Federal Tort Claims Act (FTCA)
as one of the bases for federal jurisdiction. His complaint
named two defendants: Dr. Bishop and the United States. The
United States immediately substituted itself for Dr. Bishop, as
the Gonzalez Act authorizes.
The parties commenced discovery. Despite many deadline
extensions, Levin was unable to come forward with any
expert testimony supporting his malpractice claim. At the
close of discovery, the United States filed a motion for summary judgment on both the malpractice and battery claims.
The district court recognized that, in the absence of expert tes-
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timony, there was no triable issue of fact on Levin’s malpractice claim. The court thus granted summary judgment on the
claim under Federal Rule of Civil Procedure 56. The court
denied the United States’ motion for summary judgment on
the battery claim, however. The court reasoned that a genuine
issue of material fact existed as to Levin’s consent to the surgery, thus making summary judgment inappropriate.
After being denied summary judgment on the battery claim,
the United States altered its strategy. It filed a motion to dismiss the battery claim for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). The United
States argued that the district court lacked jurisdiction because
the FTCA expressly preserves sovereign immunity against
battery claims. The district court agreed and dismissed the
battery claim.
Levin appeals only the dismissal of the battery claim; he
does not seek review of the negligent malpractice claim. Proceeding pro se, he argues that the district court still has jurisdiction to hear his battery claim based on the statutory
interplay between the FTCA and the Gonzalez Act.
II
We have jurisdiction under 28 U.S.C. § 1291 and review de
novo the district court’s dismissal for lack of subject-matter
jurisdiction. See Green v. United States, 630 F.3d 1245, 1248
(9th Cir. 2011).
III
[1] “The United States, as sovereign, is immune from suit
save as it consents to be sued . . . .” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). Waivers
of the government’s sovereign immunity “cannot be implied
but must be unequivocally expressed.” United States v. King,
395 U.S. 1, 4 (1969). The Federal Tort Claims Act is one such
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unequivocal waiver. See 28 U.S.C. §§ 1346, 2671-2680
(2008). The act grants federal courts subject-matter jurisdiction over certain tort actions against the United States. 28
U.S.C. § 1346(b). But the FTCA does not waive sovereign
immunity over all tort actions. Importantly for this case, the
act expressly preserves sovereign immunity against “[a]ny
claim arising out of . . . battery.” 28 U.S.C. § 2680(h). Levin
concedes that this express preservation of sovereign immunity, standing alone, would bar federal jurisdiction over his
battery claim. He maintains, however, that the Gonzalez Act
waives the sovereign immunity that the FTCA otherwise preserves, and thus calls our attention to the wording of 10
U.S.C. § 1089.
[2] Enacted in 1976, the Gonzalez Act is part of a series of
statutes protecting government employees from individual tort
liability. United States v. Smith, 499 U.S. 160, 170 (1991).
The act immunizes military medical personnel by designating
remedies against the United States under the FTCA—not lawsuits against individual healthcare providers serving the
military—as the exclusive means of recovery for plaintiffs
alleging malpractice. 10 U.S.C. § 1089(a) (2008). According
to the U.S. Supreme Court, the Gonzalez Act “functions
solely to protect military medical personnel from malpractice
liability . . . .” Smith, 499 U.S. at 172 (emphasis added).
According to Levin, however, the Gonzalez Act has an additional function: waiving sovereign immunity against battery
claims.
[3] Levin centers his argument on a particular subsection
of the Gonzalez Act, 10 U.S.C. § 1089(e), which states:
For purposes of this section, the [FTCA’s preservation of immunity against battery claims] shall not
apply to any cause of action arising out of a negligent or wrongful act or omission in the performance
of medical, dental, or related health care functions
....
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Id. Levin interprets subsection (e) to waive sovereign immunity against battery claims by negating the FTCA’s preservation of sovereign immunity against battery claims. While this
appears to be a viable reading at first blush, a more careful
review shows that Levin’s argument is untenable for two reasons.
A
First, while we concede that Levin’s reading of the Gonzalez Act is plausible, we hold that it is not the best reading of
the statute. Statutory interpretation begins with the statute’s
plain language. Jimenez v. Quarterman, 555 U.S. 113, 118
(2009). Words and phrases must not be read in isolation, but
with an eye toward the “purpose and context of the [whole]
statute.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006).
[4] Looking at the plain language of subsection (e), we are
immediately confronted with its restrictive introductory
clause: “For purposes of this section . . . .” 10 U.S.C.
§ 1089(e). We have already discussed that the primary purpose of the Gonzalez Act is “to protect military medical personnel from malpractice liability . . . .” Smith, 499 U.S. at
172. To be consistent with this purpose, we read subsection
(e) not as a waiver of sovereign immunity for battery claims
brought against the United States, but as an expression of personal immunity from battery claims brought against military
medical personnel.
[5] It seems clear that the Gonzalez Act makes the FTCA
the exclusive remedy for tort actions against military medical
personnel. The Gonzalez Act states that “[t]he remedy against
the United States” provided by the FTCA excludes “any other
civil action or proceeding” against the military healthcare provider. 10 U.S.C. § 1089(a). But because the FTCA provides
no “remedy against the United States” for battery, the Gonzalez Act could provide wiggle room for clever tort plaintiffs.
A plaintiff could argue that with no “remedy against the
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United States” for battery, a battery remedy must still exist
against his individual military healthcare provider. Subsection
(e) is best read to foreclose this argument given congressional
protection of military medical personnel against malpractice
liability. This interpretation is not only consistent with the
purpose of the Gonzalez Act, but also with its legislative history:
Subsection (e) would nullify a provision of the
[FTCA] which would otherwise exclude any action
for assault and battery from the coverage of the
[FTCA]. In some jurisdictions it might be possible
for a claimant to characterize negligence or a wrongful act as a tort of assault and battery. In this way,
the claimant could sue the medical personnel in his
individual capacity . . . simply as a result of how he
pleaded his case. In short, subsection (e) makes the
[FTCA] the exclusive remedy for any action, including assault and battery, that could be characterized
as malpractice.
S. Rep. No. 94-1264, at 9 (1976) (emphasis added). By “nullifying” the FTCA’s preservation of sovereign immunity “for
purposes of” the Gonzalez Act, subsection (e) works to protect military medical personnel from artfully pled malpractice
claims. We hold it does not waive sovereign immunity.
B
Second, Levin’s reading runs counter to well-established
guidelines for interpreting waivers of sovereign immunity. As
stated above, waivers of sovereign immunity “must be
unequivocally expressed.” King, 395 U.S. at 4. The plaintiff
“bears the burden of pointing to such an unequivocal waiver
of immunity.” Holloman v. Watt, 708 F.2d 1399, 1401 (9th
Cir. 1983). If the statute that waives sovereign immunity
places “limitations and conditions upon the waiver,” those
limitations are to be “strictly observed and exceptions thereto
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are not to be implied.” Hodge v. Dalton, 107 F.3d 705, 707
(9th Cir. 1997) (internal quotation marks omitted) (quoting
Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981)). When in
doubt, courts will “strictly construe[ ]” waivers of sovereign
immunity “in favor of the sovereign.” Harger v. Dep’t of
Labor, 569 F.3d 898, 903 (9th Cir. 2009) (internal quotation
marks omitted) (quoting Lane v. Pena, 518 U.S. 187, 192
(1996)).
Levin’s reading of the Gonzalez Act, while plausible, does
not “point[ ] to . . . an unequivocal waiver of immunity.” Holloman, 708 F.2d at 1401. To the contrary, his reading builds
inference upon inference to reach, at best, an implied waiver.
He reasons that if the FTCA’s preservation of immunity
“shall not apply,” then a concomitant waiver of immunity
shall apply, even if no such waiver is mentioned anywhere in
the Gonzalez Act or its legislative history. This circular
reading—where one statute references another statute to reach
a result expressed by neither—cannot result in a waiver when
nothing short of an unequivocal expression will do. Unfortunately for Levin, the only unequivocal expression in this case
is the FTCA’s clear preservation of sovereign immunity
against “[a]ny claim arising out of . . . battery . . . .” 28 U.S.C.
§ 2680(h). We must reject implied exceptions to this provision of the FTCA, Hodge, 107 F.3d at 707, and therefore
decline to adopt Levin’s interpretation of the Gonzalez Act.
IV
In arguing that the Gonzalez Act waives sovereign immunity, Levin relies heavily on the Tenth Circuit’s decision in
Franklin v. United States, 992 F.2d 1492 (10th Cir. 1993).
Franklin involved a statute very similar to the Gonzalez Act,
former 38 U.S.C. § 4116 (now 38 U.S.C. § 7316). This statute
protects medical employees of the Veterans Health Administration (VHA) from personal liability. See 38 U.S.C.
§ 7316(a) (2008). The statutory language at issue in Franklin,
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subsection 7316(f), is very similar to subsection (e) of the
Gonzalez Act:
The [FTCA’s preservation of immunity against battery] shall not apply to any claim arising out of a
negligent or wrongful act or omission of any person
described in subsection (a) in furnishing medical
care or treatment . . . while in the exercise of such
person’s duties in or for the [VHA].
38 U.S.C. § 7316(f). The Franklin court read this provision
the same way Levin reads the Gonzalez Act’s subsection (e):
as a waiver of sovereign immunity for battery claims. We find
the Tenth Circuit’s decision in Franklin unpersuasive for two
reasons.
A
First, the Franklin court’s interpretation of § 7316, like
Levin’s interpretation of the Gonzalez Act, ignores the wellestablished principle that waivers of sovereign immunity
“cannot be implied but must be unequivocally expressed.”
King, 395 U.S. at 4.
Our sister circuit began its analysis on the right path. It correctly recognized, as we do, that the language of § 7316(f) has
the same purpose as subsection (e) of the Gonzalez Act: prohibiting battery claims against individual medical personnel.
Franklin, 992 F.2d at 1500. Thus, subsection (f), like subsection (e) of the Gonzalez Act, “resolve[s]” the clever-plaintiff
problem we discuss above. Id. (explaining that because there
is “no possible remedy under the FTCA, a cause of action [for
battery] against the responsible health worker could be maintained” if not for the protection provided in subsection (f)).
We agree that this is the proper, limited interpretation of the
subsection’s text.
But the Franklin court went a step further. It held that subsection (f), in expressing congressional intent to grant individ-
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ual immunity against battery, failed to express legislative
intent to preserve sovereign immunity against battery. Id.
(postulating different ways Congress “could have” phrased
§ 7316(f) to more clearly express its intent that sovereign
immunity be preserved). Only if Congress had “indicate[d]
more generally” that individual immunity for VHA personnel
“was not contingent on the existence of a substitute remedy
under the FTCA,” would the Tenth Circuit leave plaintiffs
“without redress.” Id. (emphasis added). It appears the court
thus reasoned that preservations of sovereign immunity—not
waivers—must be “unequivocally expressed” in the statute.
With respect to our colleagues in Franklin, we think this reasoning gets it exactly backwards. It presumes that a statute
waives sovereign immunity simply because it does not clearly
state the contrary proposition. Such a presumption would turn
our circuit’s settled case law on its head, not to mention the
Supreme Court’s jurisprudence, and we must respectfully
reject it.
B
Second, the Franklin court reasoned that “extensions of VA
personal immunity should be contingent on the government’s
correlative assumption of FTCA liability.” Id. Unfortunately
for plaintiffs like Levin, the Supreme Court expressly rejected
an identical argument in Smith. Smith, 499 U.S. at 165. In
Smith, the plaintiff argued that Congress would not have
intended to immunize individual officials through the Federal
Employees Liability Reform and Tort Compensation Act
(FELRTCA) unless the government accepted a corresponding
expansion of liability to allow some chance of recovery. Id.
The Court rejected this quid-pro-quo reasoning. The Court
held that the FELRTCA “immunizes Government employees
from suit even when an FTCA exception precludes recovery
against the Government.” Id. (emphasis added). The Court
recognized the harsh consequences of its interpretation but
ruled against the tort plaintiff anyway. Id. at 166 (conceding
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that its reading of the FELRTCA could “foreclose a tort plaintiff’s recovery altogether”).
The Tenth Circuit attempted to distinguish Smith based on
a perceived difference in the statute at issue: “[I]n contrast to
[statutes such as § 7316 or the Gonzalez Act], the text and
history of the [FELRTCA] reflect no intent to offset personal
immunity with government liability.” Franklin, 992 F.2d at
1501. We find this distinction illusory. We search in vain for
language of “intent to offset personal immunity with government liability” anywhere in the text or legislative history of
the Gonzalez Act. We therefore reject the Tenth Circuit’s
quid-pro-quo rationale for expanding liability in Franklin, and
adhere to the Supreme Court’s more limited view of immunity in Smith.
V
[6] Because Levin’s surgery was performed by Navy personnel, not employees of the VHA, we do not reach his argument that § 7316 applies. The district court properly
dismissed Levin’s battery claim for lack of subject-matter
jurisdiction.
AFFIRMED.
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