Subject:  UNITED STATES v. SMITH, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



UNITED STATES et al. v. SMITH et al.


certiorari to the united states court of appeals for the ninth circuit

No. 89-1646.  Argued November 7, 1990 -- Decided March 20, 1991

Respondents Smith filed suit in the District Court against one Dr.
Marshall, alleging that he had negligently injured respondent Dominique
Smith during his birth at a United States Army hospital in Italy.  The
court granted the Government's motion to substitute itself for Marshall
pursuant to the Gonzalez Act, which provides that in a suit against
military medical personnel for employment-related torts, the Government is
to be substituted as the defendant and the suit is to proceed under the
Federal Tort Claims Act (FTCA).  The court then dismissed the suit on the
ground that the FTCA excludes recovery for injuries sustained abroad.  The
Court of Appeals reversed, holding that neither the Gonzalez Act nor the
Federal Employees Liability Reform and Tort Compensation Act of 1988 (Act)
required substitution of the Government or otherwise immunized Marshall.
It ruled that MDRV 5 of the Act -- which, with two exceptions not here
relevant, confers absolute immunity on Government employees by making an
FTCA action against the Government the exclusive remedy for their
employment-related torts -- applies only when the FTCA provides a remedy.

Held: The Act immunizes Government employees from suit even when an FTCA
exception precludes recovery against the Government.  Pp. 5-13.

    (a) The Act's language confirms that MDRV 5 makes the FTCA the
exclusive mode of recovery.  Congress recognized that requiring
substitution of the Government would sometimes foreclose a tort plaintiff's
recovery altogether when it provided in MDRV 6 of the Act that suits
proceeding under the FTCA are subject to the "limitations and exceptions"
applicable to FTCA actions.  Moreover, in light of MDRV 5's two express
exceptions preserving employee liability, a third exception preserving
liability when the FTCA bars suit cannot be implied, absent a contrary
legislative intent.  Furthermore, the enactment of MDRV 9 of the Act --
which provides for the substitution of the Tennessee Valley Authority as
defendant in employment-related tort suits against its employees --
supports no inference on the scope of MDRV 5 immunity when the FTCA
precludes suit against the United States.   Pp. 5-9.

    (b) Respondents' several arguments to support the decision below are
rejected.  Construing the Act to preclude Marshall's tort liability does
not result in an implied repeal of the Gonzalez Act.  The Gonzalez Act
functions solely to protect military medical personnel from malpractice
liability and does not create rights in favor of malpractice plaintiffs,
whose rights arise instead under state or foreign law.  Since respondents'
rights as malpractice plaintiffs were not created by Congress, the rule
disfavoring implied repeals is not implicated when Congress limits those
rights.  Similarly, respondents' suggestion that the Act was meant to apply
solely to those Government employees not already protected from tort
liability by a pre-existing federal immunity statute is inconsistent with
the Act's purpose.  The Act's plain language makes no distinction between
employees who are covered under pre-Act immunity statutes and those who are
not.  Congress clearly was aware of the preAct immunity statutes.
Congress' enactment of the two express limitations of immunity under MDRV 5
of the Act indicates that if it intended to limit the Act's protection to
employees not covered under the pre-Act immunity statutes, it would have
said this expressly.  Finally, since nothing in the Gonzalez Act imposes
any obligations or duties of care upon military physicians, respondents'
malpractice claim does not involve a violation of the Gonzalez Act.  Thus,
it does not fall within the Act's exception for suits brought for a
violation of a United States statute under which action against an employee
is otherwise authorized.  Pp. 9-13.

885 F. 2d 650, reversed and remanded.

Marshall, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Blackmun, O'Connor, Scalia, Kennedy, and Souter, JJ.,
joined.  Stevens, J., filed a dissenting opinion.

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Subject: 89-1646 -- OPINION, UNITED STATES v. SMITH

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1646



UNITED STATES, et al., PETITIONERS v. MARCUS S. SMITH et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[March 20, 1991]



    Justice Marshall delivered the opinion of the Court.
    The Federal Employees Liability Reform and Tort Compensation Act of
1988 (Liability Reform Act or Act) limits the relief available to persons
injured by Government employees acting within the scope of their
employment.  For persons so injured, the Act provides that "[t]he remedy
against the United States" under the Federal Tort Claims Act (FTCA) "is
exclusive of any other civil action or proceeding for money damages."  28
U. S. C. MDRV 2679(b)(1).  Subject to certain exceptions, the FTCA permits
a person injured by a Government employee acting within the scope of his or
her employment to seek tort damages against the Government.  One exception
bars such recovery for injuries sustained outside the country.  See 28 U.
S. C. MDRV 2680(k).  This case presents the question whether a person
injured abroad by a military physician, and whom the FTCA foreign-country
exception therefore precludes from suing the Government, may nonetheless
seek damages from the particular Government employee who caused the injury.
We hold that the Liability Reform Act bars this alternative mode of
recovery.

I
    In 1982, while working on the medical staff of the United States Army
hospital in Vicenza, Italy, Dr. William Marshall served as attending
physician to Hildegard Smith during the delivery of her son Dominique.  At
this time, Ms. Smith's husband, Marcus Smith, was an Army Sergeant
stationed in Italy.  According to the Smiths, Dominique was born with
massive brain damage.  In 1987, the Smiths, who are respondents in this
Court, sued Dr. Marshall in the United States District Court for the
Central District of California, basing jurisdiction on diversity of
citizenship.  The Smiths alleged that Dr. Marshall's negligence during the
delivery caused Dominique's injuries. {1}
    The Government intervened and sought to have itself substituted for Dr.
Marshall as the defendant pursuant to the Gonzalez Act, 10 U. S. C. MDRV
1089.  The Gonzalez Act provides that in suits against military medical
personnel for torts committed within the scope of their employment, the
Government is to be substituted as the defendant and the suit is to proceed
against the Government under the FTCA.  See 15 1089(a), (b).  The
Government also argued that, because the action arose overseas, the FTCA
exception excluding recovery for injuries sustained abroad, 28 U. S. C.
MDRV 2680(k), precluded Government liability.  Consequently, the Government
concluded, the action should be dismissed.  The District Court granted the
Government's motion for substitution and dismissed the action.  See App. to
Pet. for Cert. 17a-18a. {2}
    In 1988, while respondents' appeal was pending, Congress enacted the
Liability Reform Act as an amendment to the FTCA.  Congress took this
action in response to our ruling in Westfall v. Erwin, 484 U. S. 292
(1988), which held that the judicially created doctrine of official
immunity does not provide absolute immunity to Government employees for
torts committed in the scope of their employment.  In West fall, we ruled
that such official immunity would have to be determined on a case-by-case
basis, according to whether "the contribution to effective government in
particular contexts" from granting immunity "outweighs the potential harm
to individual citizens."  484 U. S., at 299.  The Liability Reform Act
establishes the absolute immunity for Government employees that the Court
declined to recognize under the common law in Westfall.  The Act confers
such immunity by making an FTCA action against the Government the exclusive
remedy for torts committed by Government employees in the scope of their
employment. {3}
    On appeal in the present case, the Government relied on this new
statute to support the District Court's dismissal of respondents' action.
{4}  The Government argued that the Liability Reform Act essentially had
the same effect as that which the District Court had found to result from
the Gonzalez Act.  Because Dr. Marshall's alleged malpractice occurred in
the scope of his employment, the Government argued, respondents' action
should proceed against it as an FTCA action. {5}  The Government further
contended that, because of the FTCA exception under MDRV 2680(k) barring
recovery for injuries occurring overseas, the District Court's ruling
dismissing the suit should be affirmed.
    The Ninth Circuit reversed, holding that neither the Gonzalez Act nor
the Liability Reform Act required substitution of the Government as the
defendant in this suit or otherwise immunized Dr. Marshall from liability.
See 885 F. 2d 650 (1989). {6}  With respect to the Liability Reform Act,
the Ninth Circuit reasoned that although the Act renders a suit against the
Government under the FTCA the exclusive remedy for employment-related torts
committed by Government employees, the Act applies only when the FTCA in
fact provides a remedy.  Because MDRV 2680(k) of the FTCA precludes any
remedy against the Government in cases arising from injuries incurred
abroad, the Ninth Circuit concluded that respondents' tort claim against
Dr. Marshall was not barred by the Liability Reform Act.  Id., at 654-655.
    We granted certiorari, 496 U. S. --- (1990), to resolve a conflict
among the Circuits over whether the Liability Reform Act immunizes
Government employees from suit even when an FTCA exception precludes
recovery against the Government. {7}  We conclude the Act does confer such
immunity and therefore reverse.

II
    Section 5 of the Liability Reform Act states that "[t]he remedy"
against the Government under the FTCA "is exclusive of any other civil
action or proceeding for money damages . . . against the employee" and then
reemphasizes that "[a]ny other civil action or proceeding for money damages
. . . against the employee . . . is precluded."  28 U. S. C. MDRV
2679(b)(1).  The central question in this case is whether, by designating
the FTCA as the "exclusive remedy," MDRV 5 precludes an alternative mode of
recovery against a Government employee in cases where the FTCA itself does
not provide a means of recovery.
    Two provisions in the Liability Reform Act confirm that MDRV 5 makes
the FTCA the exclusive mode of recovery for the tort of a Government
employee even when the FTCA itself precludes Government liability.  The
first is MDRV 6 of the Act.  As noted, see n. 5, supra, MDRV 6 directs the
Attorney General in appropriate tort cases to certify that a Government
employee named as defendant was acting within the scope of his employment
when he committed the alleged tort.  Section 6 also provides that the suit
"shall proceed in the same manner as any action against the United States
filed pursuant to [the FTCA] and shall be subject to the limitations and
exceptions applicable to those actions."  28 U. S. C. MDRV 2679(d)(4)
(emphasis added).  One of these "exceptions" -- expressly designated as
such under MDRV 2680 -- is the provision barring Government liability for
torts "arising in a foreign country."  MDRV 2680(k).  The "limitations and
exceptions" language in MDRV 6 of the Liability Reform Act persuades us
that Congress recognized that the required substitution of the United
States as the defendant in tort suits filed against Government employees
would sometimes foreclose a tort plaintiff's recovery altogether.
    The second basis of our interpretation arises from the express
preservations of employee liability in MDRV 5.  Section 5 declares that the
FTCA is not the exclusive remedy for torts committed by Government
employees in the scope of their employment when an injured plaintiff
brings: (1) a Bivens action, {8} seeking damages for a constitutional
violation by a Government employee; or (2) an action under a federal
statute that authorizes recovery against a Government employee.  See MDRV
2679(b)(2).  Congress' express creation of these two exceptions convinces
us that the Ninth Circuit erred in inferring a third exception that would
preserve tort liability for Government employees when a suit is barred
under the FTCA.  "Where Congress explicitly enumerates certain exceptions
to a general prohibition, additional exceptions are not to be implied, in
the absence of evidence of a contrary legislative intent."  Andrus v.
Glover Construction Co., 446 U. S. 608, 616-617 (1980). {9}
    The Ninth Circuit based its contrary construction of the Liability
Reform Act on one of the Act's specialized provisions.  Section 9 of the
Act provides that the Tennessee Valley Authority (TVA) shall be substituted
as defendant in any suit against a TVA employee arising from "act[ions]
within the scope of his office or employment," 16 U. S. C. MDRV
831c-2(b)(1), and that an action against the TVA is "ex[c]lusive of any
other civil action or proceeding," 16 U. S. C. MDRV 831c-2(a)(1).  Under
the TVA exception to the FTCA, 28 U. S. C. MDRV 2680(l), the Government may
not be held liable for any claim arising from the TVA's activities.  The
Ninth Circuit inferred from the enactment of MDRV 9 that Congress must have
expected that MDRV 5 would not shield TVA employees from liability where
suit against the United States was precluded by MDRV 2680(l).  See 885 F.
2d, at 655.  And because only TVA employees were singled out for a special
grant of immunity, the court concluded that all other Government employees
must remain subject to liability where the FTCA precludes suit against the
United States.  See ibid.
    The Ninth Circuit's analysis rests on a misunderstanding of the purpose
and effect of MDRV 9.  By its terms, MDRV 9 does not invest TVA employees
with more immunity than MDRV 5 affords other Government employees.  Rather,
MDRV 9 provides merely that a suit against the TVA, 16 U. S. C. MDRV
831c-2(a)(1), rather than one against the United States, 28 U. S. C. MDRV
2679(b)(1), shall be the exclusive remedy for the employment-related torts
of TVA employees.  This adjustment of the Liability Reform Act's immunity
scheme is perfectly sensible, for although the United States may not be
held liable for the TVA's activities, the TVA itself "[m]ay sue and be sued
in its corporate name."  16 U. S. C. MDRV 831c(b).  Courts have read this
"sue or be sued" clause as making the TVA liable to suit in tort, subject
to certain exceptions.  See, e. g., Peoples Nat. Bank of Huntsville, Ala.
v. Meredith, 812 F. 2d. 682, 684-685 (CA11 1987); Queen v. Tennessee Valley
Authority, 689 F. 2d 80, 85 (CA6 1982), cert. denied, 460 U. S. 1082
(1983).  In our view, the most plausible explanation for MDRV 9 is that, in
view of lower court cases establishing the TVA's own tort liability
independent of the FTCA, Congress decided to clarify that the TVA should be
substituted in suits brought against TVA employees.
    Seen in this light, the enactment of MDRV 9 supports no inference
either way on the scope of MDRV 5 immunity when suit against the United
States is precluded under the FTCA.  Both the plain language and
legislative history of MDRV 9 indicate that the provision was intended to
give TVA employees the same degree of immunity as MDRV 5 gives other
Government employees.  Compare 28 U. S. C. MDRV 2679(b)(1), with 16 U. S.
C. MDRV 831c-2(a)(1).  See also 134 Cong. Rec. S16375 (Oct. 14, 1988)
(remarks of Sen. Heflin).  But because the scope of immunity conferred to
employees is the same, MDRV 9 has no bearing upon whether Congress viewed
MDRV 5 as protecting Government employees from liability when suit against
the United States is precluded under the FTCA. {10}

III


A
    In support of the decision below, respondents advance reasoning not
relied upon by the Ninth Circuit.  They invoke the well-established
principle of statutory interpretation that implied repeals should be
avoided.  See, e. g., Randall v. Loftsgaarden, 478 U. S. 647, 661 (1986) ("
`repeals by implication are not favored' " (citations omitted)).
Respondents contend that the Government's construction of the Liability
Reform Act precluding tort liability for Dr. Marshall results in an implied
repeal of the Gonzalez Act, 10 U. S. C. MDRV 1089, which regulates suits
against military medical personnel.  We disagree.
    The Gonzalez Act is one of a series of immunity statutes enacted prior
to the Liability Reform Act that were designed to protect certain classes
of Government employees from the threat of personal liability. {11}  For
torts committed by military medical personnel within the scope of their
employment, the Gonzalez Act provides that a suit against the Government
under the FTCA is the exclusive remedy.  10 U. S. C. MDRV 1089(a). {12}
    Two Courts of Appeals, including the Ninth Circuit in the decision
below, have held that the Gonzalez Act's grant of absolute immunity from
suit protects only military medical personnel who commit torts within the
United States and not those committing torts abroad.  See 885 F. 2d, at
652-654; Newman v. Soballe, 871 F. 2d 969 (CA11 1989).  In reaching this
conclusion, these courts relied largely on MDRV 1089(f) of Title 10, which
permits agency heads to indemnify or insure foreign-based military medical
personnel against liability for torts committed abroad while in the scope
of their employment. {13}  The Ninth and Eleventh Circuits construe MDRV
1089(f) to limit the protection available to foreign-based military medical
personnel to indemnification or insurance, instead of the immunity that is
otherwise available to them when stationed within the United States. {14}
Under this interpretation, the Gonzalez Act would not preclude respondents
from suing Dr. Marshall directly in a United States court.  Respondents
contend that extending the Liability Reform Act to foreign-based military
medical personnel therefore would effect an implied repeal of their
"Gonzalez Act remedy."  See Brief for Respondents 8, 33, 46.
    We reject the last step in respondent's argument.  For purposes of this
case, we need not question the lower court's determination that the
Gonzalez Act would not immunize Dr. Marshall from a malpractice action
brought under state or foreign law.  Even if the lower court properly
interpreted the Gonzalez Act, it does not follow, however, that application
of the Liability Reform Act to an action founded on state or foreign law
effects a "repeal" of the Gonzalez Act.  The Gonzalez Act functions solely
to protect military medical personnel from malpractice liability; it does
not create rights in favor of malpractice plaintiffs.  What respondents
describe as their "Gonzalez Act remedy" is in fact a state- or foreignlaw
remedy that would not be foreclosed by Gonzalez Act immunity.
Consequently, the rule disfavoring implied repeals simply is not implicated
by the facts of this case, because the Liability Reform Act does not repeal
anything enacted by the Gonzalez Act.  The Liability Reform Act adds to
what Congress created in the Gonzalez Act, namely protection from liability
for military doctors.  Respondents' rights, on the other hand, arise solely
out of state or foreign law.  Because Congress did not create respondents'
rights, no implied repeal problem arises when Congress limits those rights.
{15}

B
    Respondents next raise a second and slightly different argument
involving the Gonzalez Act.  They contend that the Liability Reform Act was
meant to apply solely to those Government employees not already protected
from tort liability in some fashion by a pre-existing federal immunity
statute.  Under respondents' construction of the Act, military medical
personnel and other Government employees who were already protected by
other statutes, see n. 11, supra, cannot now benefit from the more generous
immunity available under the Liability Reform Act.  In our view, such a
construction is inconsistent with Congress' purpose in enacting the
Liability Reform Act.
    The Liability Reform Act's plain language makes no distinction between
employees who are covered under pre-Act immunity statutes and those who are
not.  Section 5 states that, with respect to a tort committed by "any
employee of the Government" within the scope of employment, the FTCA
provides the exclusive remedy.  See 28 U. S. C. MDRV 2679(b)(1) (emphasis
added).  No language in MDRV 5 or elsewhere in the statute purports to
restrict the phrases "any employee of the Government," as respondents urge,
to reach only employees not protected from liability by another statute.
When Congress wanted to limit the scope of immunity available under the
Liability Reform Act, it did so expressly, as it did in preserving employee
liability for Bivens actions and for actions brought under a federal
statute authorizing recovery against the individual employee.  MDRV
2679(b)(2); see also supra, at 6.  In drafting the Liability Reform Act,
Congress clearly was aware of the pre-Act immunity statutes.  See H. R.
Rep. 100-700, p. 4 (1988) (citing these statutes, including the Gonzalez
Act).  We must conclude that if Congress had intended to limit the
protection under the Act to employees not covered under the pre-Act
statutes, it would have said as much. {16}

C
    Finally, respondents argue that their claim falls within one of the two
express exceptions under the Liability Reform Act -- the exception
permitting suits "brought for a violation of a statute of the United States
under which such action against an individual [employee] is otherwise
authorized."  MDRV 2679(b)(2)(B).  Respondents assert that they have
satisfied both conditions set forth in this exception.  They contend that
(1) their claim against Dr. Marshall is "authorized" by the Gonzalez Act
and that (2) because the Gonzalez Act permits suits against military
doctors for negligence in certain instances, such claims of negligence
constitute claims of a Gonzalez Act "violation."  We need not decide
whether a tort claim brought under state or foreign law could be deemed
authorized by the Gonzalez Act, for we find that respondents' second
argument -- that a claim for malpractice involves "a violation of" the
Gonzalez Act -- is without merit.  Nothing in the Gonzalez Act imposes any
obligations or duties of care upon military physicians.  Consequently, a
physician allegedly committing malpractice under state or foreign law does
not "violate" the Gonzalez Act.
    The dissent disagrees.  According to the dissent, unless MDRV
2679(b)(2)(B) "was intended to preserve the Gonzalez Act remedy, it was
essentially without purpose."  Post, at 8.  However, the dissent never
attempts to square this assertion with the plain language of MDRV
2679(b)(2)(B), which permits only those suits against Government employees
"brought for a violation of a statute of the United States under which such
action against an [employee] is otherwise authorized" (emphasis added).  At
no point does the dissent indicate how a military physician's malpractice
under state or foreign law could be deemed a "violation" of the Gonzalez
Act.  Nor can the dissent avoid this obstacle merely by invoking the canon
of statutory construction that every provision of a law should be given
meaning.  See post, at 9, and n. 8.  It is true that the legislative
history fails to disclose (and neither we nor the dissent has attempted to
discover) what cause(s) of action Congress sought to preserve when it
enacted MDRV 2679(b)(2)(B), but a malpractice suit alleging a "violation"
of the Gonzalez 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 throughout the hearings and in the
House Report, that [the Liability Reform Act] not curtail any preexisting
remedies of tort victims."  Post, at 8.  The truth is, however, that the
legislative history reveals considerably less solicitude for tort
plaintiffs' rights than the dissent suggests.  As we have already noted,
see n. 9, supra, the House Report expressly warned that, under the
Liability Reform Act, "any claim against the government that is precluded
by [FTCA] exceptions" -- which obviously would include claims barred by the
exception for causes of action arising abroad -- "also is precluded against
an employee."  H. R. Rep. 100-700, at 6 (emphasis added).  This
congressional intent was clearly implemented in MDRV 5 of the Act, and we
are obliged to give it effect.

IV
    For the reasons set forth above, the judgment of the Court of Appeals
is reversed, and the case is remanded for further proceedings consistent
with this opinion.

So ordered.


 
 
 
 
 

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1
    Respondents brought their claim under California law, Italian law, and
"general American principles of law."  See Complaint MDRV 19.

2
    As an alternative ground for dismissal, the District Court cited
respondents' failure to present their claim to the appropriate federal
agency within the time required under 28 U. S. C. MDRV 2401(b).  See App.
to Pet. for Cert. 17a-18a.

3
    Section 5 of the Act provides:

    "The remedy against the United States provided by [the FTCA] 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."  28 U. S. C. MDRV
2679(b)(1).

4
    Pursuant to MDRV 8(b), the Liability Reform Act applies to all
proceedings pending on the date of its enactment.  102 Stat. 4565-4566,
note following 28 U. S. C. MDRV 2679.  Respondents do not dispute that the
Act applies in this case.

5
    Under MDRV 6 of the Liability Reform Act, the Attorney General is
required to certify that the original defendant (the Government employee)
"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. MDRV 2679(d)(1).  Once
certification occurs, the action "shall be deemed an action against the
United States [under the FTCA] and the United States shall be substituted
as the party defendant."  Ibid.  Where the Attorney General refuses to
issue such certification, the Act permits the employee to seek a judicial
determination that he was acting within the scope of his employment. MDRV
2679(d)(3).

6
    Following the Liability Reform Act's enactment and the Eleventh
Circuit's decision in Newman v. Soballe, 871 F. 2d 969 (1989), the
Government withdrew reliance on the Gonzalez Act as a basis for affirming
the District Court's ruling.  However, Dr. Marshall, appearing pro se,
requested the Ninth Circuit to address the applicability of the Gonzalez
Act.  See Brief for United States 5, n. 3.  Following the rationale of
Newman v. Soballe, supra, the Ninth Circuit held that the Gonzalez Act made
the FTCA the exclusive remedy only for malpractice committed by stateside
military medical personnel and that the Act left foreign-based military
medical personnel like Dr. Marshall subject to malpractice liability.  See
885 F. 2d, at 651-654.  Because the Government did not raise the Gonzalez
Act issue in its petition for certiorari, we need not address that portion
of the lower court's ruling that denied Dr. Marshall immunity under the
Gonzalez Act.  In any event, that question is rendered irrelevant in this
case by our holding that the Liability Reform Act confers Dr. Marshall
immunity.

7
    The First, Fifth and Tenth Circuits all have held that the Liability
Reform Act applies even when an FTCA exception precludes liability against
the Government.  See Nasuti v. Scannell, 906 F. 2d 802, 810, n. 14 (CA1
1990); Mitchell v. Carlson, 896 F. 2d 128 (CA5 1990); Aviles v. Lutz, 887
F. 2d 1046 (CA10 1989).  The Eleventh Circuit has taken the opposite
position.  See Newman v. Soballe, supra, at 971.

8
    See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

9
    The legislative history fully supports our construction.  In
particular, the House Committee Report provides:

    "The `exclusive remedy' provision . . . 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 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 his or her estate."  H. R. Rep. No. 100-700, p. 6 (1988)
(emphasis added).

    The Ninth Circuit deemed the Report "internally inconsistent," 885 F.
2d, at 656, because of other language in the Report stating that "[u]nder
[the Liability Reform Act], no one who previously had the right to initiate
a lawsuit will lose that right," H. R. Rep., supra, at 7.  The Ninth
Circuit understood this passage to suggest that Congress did not intend to
narrow existing rights of recovery.  However, this language must be read in
conjunction with a preceding sentence in the Report, which states that the
Act "contains provisions to ensure that no one is unfairly affected by [the
Act's] procedural ramifications" and that, where "an injury has occurred
before [the Act] is enacted, but no lawsuit has yet been filed . . . , the
claimant will have to pursue a remedy against the United States, not
against the employee."  Ibid.  When read in context, the passage relied on
by the Ninth Circuit indicates that those with existing lawsuits would be
permitted to continue to prosecute them by substituting the Government for
the employee.  The passage supports only the conclusion that the Liability
Reform Act preserved the procedural right to initiate an action.  It does
not suggest that the Act did not narrow existing substantive rights of
recovery.

10
    We note, moreover, that Congress included within MDRV 9 a provision
parallel to that under MDRV 5 preserving employee liability for Bivens
actions.  See 16 U. S. C. MDRV 831c-2(a)(2).  Likewise, MDRV 9 contains
language parallel to the "limitations and exceptions" language within MDRV
6. See 16 U. S. C. MDRV 831c-2(b)(4) (indicating that action against TVA
under MDRV 9 "shall be subject to the limitations and exceptions applicable
to" actions against the TVA generally).

11
    The Gonzalez Act was passed in response to the decision in Henderson v.
Bluemink, 167 U. S. App. D. C. 161, 511 F. 2d 399 (1974), which held that
an Army physician did not have absolute immunity from suit for alleged
malpractice committed within the scope of his employment.  See S. Rep. No.
94-1264, p. 4 (1976).  Similar pre-immunity statutes were enacted for other
medical personnel employed by the Government, including those in the State
Department, see 22 U. S. C. MDRV 2702, the Veterans' Administration, see 38
U. S. C. MDRV 4116, and the Public Health Service, see 42 U. S. C. MDRV
233.  Another immunity statute was enacted to shield Defense Department
attorneys from claims of legal malpractice.  See 10 U. S. C. MDRV 1054.
Finally, before it was expressly repealed by the superseding provisions of
the Liability Reform Act, the Federal Drivers Act, 28 U. S. C. MDRV
2679(b)-(e) (1982 ed.), made the FTCA the exclusive remedy for torts
committed by Government employees while operating a motor vehicle within
the scope of their employment.

12
    Section 1089(a) provides:

    "The remedy against the United States provided by [the FTCA] for
damages for personal injury, including death, caused by the negligent or
wrongful act or omission of any physician, dentist, nurse, pharmacist, or
paramedical or other supporting personnel . . . of the armed forces . . .
while acting within the scope of his duties or employment . . . shall
hereafter be exclusive of any other civil action or proceeding by reason of
the same subject matter against such physician, dentist, nurse, pharmacist,
or paramedical or other supporting personnel (or the estate of such person)
whose act or omission gave rise to such action or proceeding."

13
    Section 1089(f) provides:

    "The head of the agency concerned may, to the extent that the head of
the agency concerned considers appropriate, hold harmless or provide
liability insurance for any person described in subsection (a) for damages
for personal injury, including death, caused by such person's negligent or
wrongful act or omission in the performance of medical, dental, or related
health care functions (including clinical studies and investigations) while
acting within the scope of such person's duties if such person is assigned
to a foreign country . . . ."

14
    See also Jackson v. Kelly, 557 F. 2d 735, 740-741 (CA10 1977)
(endorsing this view in dictum).  But cf. Powers v. Schultz, 821 F. 2d 295
(CA5 1987) (reasoning that MDRV 1089(f)'s indemnify-or-insure language
applies only when foreign-based personnel are sued in foreign courts and
that such personnel remain immune from suit in a United States court).

15
    The dissent contends that we have rendered "virtually meaningless" the
insure-or-indemnify clause of MDRV 1089(f) of the Gonzalez Act by holding
that the Liability Reform Act bars any malpractice action in state or
federal court against a foreign-based military physician.  See post, at 2.
This is not true.  In the wake of the Liability Reform Act, insurance or
indemnification against malpractice suits in domestic courts is no longer
needed, but MDRV 1089(f) still serves to protect foreign-based military
personnel against malpractice suits in foreign courts.  See Powers v.
Schultz, 821 F. 2d, at 297.

16
    The House Committee Report echoes the all-encompassing language of the
statute: "The `exclusive remedy' provision . . . 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."  H. R. Rep., No. 100-700, at 6 (emphasis added).





Subject: 89-1646 -- DISSENT, UNITED STATES v. SMITH

 


 
SUPREME COURT OF THE UNITED STATES


No. 89-1646



UNITED STATES, et al., PETITIONERS v. MARCUS S. SMITH et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[March 20, 1991]



    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.
{1}  Regulations issued pursuant to subsection (f) make the United States
the real party in interest in such a tort action. {2} 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 15 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.

I


    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. {3}

    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 9-11, 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 11.  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.

II


    The Liability Reform Act was a direct response to this Court's decision
in Westfall v. Erwin, 484 U. S. 292 (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.  We held unanimously that
nondiscretionary conduct was not entitled to such immunity.  Id., at 297.

    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. 100700, p. 3 (1988).

    Section 2 of the Liability Reform Act contains a detailed statement of
Congress' reasons for enacting the statute. {4}  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. MDRV 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. {5}

    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, {6} 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 MDRV 5(b)(2), 28 U. S. C.
MDRV 2679(b)(2).  As amended, MDRV 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. MDRV 2679(b) (2).


    As to MDRV 5(b)(2)(A), Congress made explicit throughout the hearings
its intent to exclude constitutional violations from the Liability Reform
Act's coverage. {7}  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 MDRV 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 MDRV 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 MDRV 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 MDRV 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 MDRV 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 MDRV 5(b)(2)(B)
superfluous. {8}  Indeed, the Court never says what kind of statutory
violation MDRV 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. 100700, at 7. {9}

    The description of MDRV 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 (emphasis added).

    The Court argues that the "Gonzalez Act remedy" has not been impliedly
repealed because "the Gonzalez Act functions solely to protect military
medical personnel from malpractice liability; it does not create rights in
favor of malpractice plaintiffs."  Ante, at 11.  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. {10}  Moreover, this provision of the Gonzalez Act
amounted to an express preservation of a common-law remedy.  Because MDRV
5(b)(2)(B) of the Liability Reform Act is otherwise virtually meaningless,
{11} 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. {12}  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 their preexisting 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 MDRV 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. {13}

    In Westfall v. Erwin, 484 U. S. 292 (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.  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.

 
 
 
 
------------------------------------------------------------------------------
1
    The Gonzalez Act, also known as the Medical Malpractice Immunity Act,
authorizes indemnification as follows:
    "(f) The head of the agency concerned or his designee may, to the
extent that he or his designee deems appropriate, hold harmless or provide
liability insurance for any person described in subsection (a) for damages
for personal injury, including death, caused by such person's negligent or
wrongful act or omission in the performance of medical, dental, or related
health care functions (including clinical studies and investigations) while
acting within the scope of such person's duties if such person is assigned
to a foreign country or detailed for service with other than a Federal
department, agency, or instrumentality or if the circumstances are such as
are likely to preclude the remedies of third persons against the United
States described in section 1346(b) of title 28, for such damage or
injury."  90 Stat. 1986(f), as amended, 10 U. S. C. MDRV 1089(f).

Another subsection makes the same indemnification arrangement available to
members of the National Aeronautics and Space Administration.  See 90 Stat.
1989, 42 U. S. C. MDRV 2458a(f).

2
    According to the Department's regulations:
    "6. Extent of Protection.  Reference (b) [the Gonzalez Act] extends
coverage within the United States and its possessions by making suit
against the United States under the Federal Tort Claims Act the exclusive
remedy for an injured party.  Where the Federal Tort Claims Act does not
apply (as, for example, where the acts giving rise to the claim occurred
outside the United States), coverage is provided by allowing the Secretary
of Defense to hold harmless or provide liability insurance for health care
personnel.
    "7. Exercise of Authority.  By reference (a), the Secretary of Defense
delegated to the Secretary of the Navy the authority to hold harmless or
provide liability insurance for Navy health care personnel.  All persons
referred to in paragraph 4 above and in subsection (a) of reference (b) are
hereby held harmless for damages resulting from negligent or wrongful acts
or omissions while acting within the scope of duties and assigned to duty
in a foreign country, or detailed for service with other than a Federal
agency, or if the circumstances are such as are likely to preclude remedy
against the United States under the Federal Tort Claims Act, as provided by
subsection (f) of reference (b)."  Department of the Navy, SECNAV
INSTRUCTION 6300.3, JAG:14C (Mar. 14, 1978), App. to Brief for Respondents
2a-3a.

3
    As the Senate Report explained:
    "By making the Federal Tort Claims Act an exclusive remedy, a claimant
is forced to sue the United States for damages rather than a government
employee in his personal capacity.  At least four existing statutes make
the Federal Tort Claims Act an exclusive remedy in order to protect a
certain class of government employee from personal liability.
    "In 1961 the Government Driver's Act (Public Law 87-258) made the
Federal Tort Claims Act the exclusive remedy for damages sustained as a
result of the negligent operation of a motor vehicle by a federal driver
acting within the scope of his employment.  The result was to protect
federal employees in their individual capacity from tort liability arising
from the operation of motor vehicles.
    "In 1965, Congress enacted a bill patterned after the Government
Driver's Act which protected medical personnel of the Veterans'
Administration for individual tort liability from malpractice when acting
within the scope of their employment (Public Law 89-311).
    "Similar legislation making the Federal Tort Claims Act the exclusive
remedy for malpractice was enacted in 1970 to immunize medical personnel of
the Public Health Service from personal liability arising out of
performance of their medical duties (Public Law 91-623).
    "More recently, the Foreign Relations Authorization Act of fiscal year
of 1977 (Public Law 94-350) immunized medical personnel of the State
Department from personal liability for medical malpractice.
    "In all essential respects these four statutes are similar.  Each
statute abolished old rights recognized by the common law to obtain the
legislative object of protecting certain federal employees from suit in
their individual capacities.
    "H. R. 3954 is modeled after these statutes."  S. Rep. No. 94-1264, p.
3 (1976).

4
    In MDRV 2 of Pub. L. 100-694, 102 Stat. 4563, Congress set forth the
findings and purposes of the Liability Reform Act:

    "(2) The United States, through the Federal Tort Claims Act, is
responsible to injured persons for the common law torts of its employees in
the same manner in which the common law historically has recognized the
responsibility of an employer for torts committed by its employees within
the scope of their employment.

    . . . . .


    "(4) Recent judicial decisions, and particularly the decision of the
United States Supreme Court in Westfall v. Erwin, have seriously eroded the
common law tort immunity previously available to Federal employees.
    "(5) This erosion of immunity of Federal employees from common law tort
liability has created an immediate crisis involving the prospect of
personal liability and the threat of protracted personal tort litigation
for the entire Federal workforce.

    . . . . .


    "(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated
that the Congress is in the best position to determine the extent to which
Federal employees should be personally liable for common law torts, and
that legislative consideration of this matter would be useful."  102 Stat.
4563-4564, note following 28 U. S. C. MDRV 2671.

5
    Senator Grassley, one of the sponsors of the legislation explained:
    "As my colleagues know, the FTCA has generally worked well over the
past four decades in providing fair and expeditious compensation to persons
injured by the common law torts of Federal employees.  This bill, by
covering Westfall-type cases under the FTCA, assures that victims of common
law torts of Federal employees will be fairly compensated.  At the same
time, it provides a needed measure of employee protection from personal
liability.
    "Mr. President, I would like to emphasize that this bill does not have
any effect on the so-called Bivens cases or Constitutional tort claims.
Although this too is an area of concern to me -- and I have introduced
corrective legislation in the past -- the bill that we pass today has no
impact on these cases, which can continue to be brought against individual
Government officials."  134 Cong. Rec. 29933 (1988).

6
    Thus, a representative of the Department of Justice testified:
    "H. R. 4358 would do nothing more than extend the protection now
enjoyed by doctors, drivers, and DoD attorneys to all federal employees.
It also will ensure equitable and consistent treatment for persons injured
by federal conduct, without regard to the status of the employee whose
actions are alleged to have caused the injury."  Hearings on H. R. 4358 et
al. before the Subcommittee on Administrative Law and Governmental
Relations of the House Committee on the Judiciary, 100th Cong., 2d Sess.,
76 (1988) (hereinafter House Hearings).

The point was reiterated by others during the hearings and debate.  See
id., at 34 ("In no way, in no way at all, does this measure infringe or
diminish any legal rights of individuals") (statement of Rep. Wolf); id.,
at 44 ("[W]e want to protect the employees without diminishing the rights
of anyone who might be injured") (statement of Chairman Frank); 134 Cong.
Rec. 15963 (1988) ("Other remedies under other acts, Civil Rights Act, are
not affected at all") (statement of Chairman Frank).

7
    See, e. g., House Hearings 40, 58, 127, 195.

8
    The Court's approach today runs counter to the well-established rule
that meaning should be attributed to each subsection of a statute.  See
United States v. Morton, 467 U. S. 822, 828 (1984); see also 2A N. Singer
Sutherland on Statutory Construction MDRV 46.06, p. 104 (C. Sands 4th rev.
ed. 1984) ("A statute should be construed so that effect is given to all of
its provisions, so that no part will be inoperative or superfluous, void or
insignificant") (footnotes omitted).

9
    The Court today attempts to explain the House Report's language away by
claiming that because it appears in a section pertaining to implementation
of the Act, it says nothing more than that those plaintiffs who had actions
pending would be permitted to pursue them by substituting the Government
for the individual employee.  See ante, at 6, n. 9.  However, similar
language also appears in the House Report before any discussion of what
would happen during the transition period.  According to the House Report,
the Liability Reform Act "does not change the law, as interpreted by the
Courts, with respect to the availability of other recognized causes of
action; nor does it either expand or diminish rights established under
other Federal statutes."  H. R. Rep. No. 100-700, p. 7 (1988).  Such
language indicates that Congress was concerned not just with preserving
procedural rights, as the Court would have it, but also with preserving
existing substantive rights.

10
    The Eleventh Circuit recognized that subsection (f) could not be
ignored: "Because subsection (f) was written into the Gonzalez Act, we are
required to give it meaning."  Newman v. Soballe, 871 F. 2d 969, 974
(1989).  The Tenth Circuit also acknowledged, albeit in dicta, that
subsection (f) of the Gonzalez Act provided an important remedy:

"The purpose of [subsection (f)] is to provide a method for the assumption
by the government of responsibility for damage claims against its military
medical personnel arising from medical care given in foreign countries in
the scope of their employment.  Behind it is the desire to protect military
medical personnel from the ever-present danger of personal liability . . .
while preserving a means for compensating malpractice victims for their
injuries. . . .  Instead of granting military medical personnel practicing
in foreign countries absolute immunity from suit for acts within the scope
of their employment, Congress elected to have the government protect them
through indemnification or insurance.  The effect of this approach rather
than absolute immunity is to ensure a remedy to victims of malpractice by
military medical personnel assigned to a foreign country."  Jackson v.
Kelly, 557 F. 2d 735, 740-741 (CA10 1977).

11
    The theoretical possibility of litigation in a foreign court, see ante,
at 12, n. 15, was never even mentioned in the legislative history of either
the Gonzalez Act or the Liability Reform Act.

12
    The only remedy that remains available to respondents after the Court's
decision today is the possibility of a private bill.  See Office of
Personnel Management v. Richmond, 496 U. S. --- (slip op. 16) (1990).
Ironically, the Court, by its restrictive reading, now leaves families of
service personnel who have been injured by federal health workers in
foreign countries with little choice but to seek private bills in order to
receive compensation; this is the very policy that Congress sought to avoid
when it enacted the FTCA over 40 years ago.  At the time of the FTCA's
enactment, Congress sought to rectify the shortcomings of a system that was
"unduly burdensome to the Congress" and was "unjust to the claimants"
because it did not "accord to injured parties a recovery as a matter of
right but base[d] any award that may be made on considerations of grace."
H. R. Rep. No. 1287, 79th Cong., 1st Sess., 2 (1945).  Congress intended
the FTCA to "establish a uniform system" to replace the existing system of
private bills.  Id., at 3.

13
    In response to this dissent, the Court has restated its argument that
respondent did not "violate" the Gonzalez Act.  See ante, at 14.  As a
matter of pure grammar, the Court is, of course, correct.  It nevertheless
remains true that this literal reading of the Liability Reform Act fails to
answer two critical questions: (1) What legislative purpose is served by
depriving malpractice victims, such as petitioner, of their Gonzalez Act
remedy?  (2) If MDRV 5(b)(2)(B) does not preserve that remedy, then what
was its purpose?  If forced to choose between an assumption that Congress
used imperfect grammar to achieve a benign purpose identified in the
legislative history and an assumption that it inadvertently achieved a
heartless purpose disclaimed in the legislative history, I have no
difficulty in choosing the former.
