UNITED STATES v. SMITH
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 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.
The Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government. Pp. ___.
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.
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. 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. 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.
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. 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 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. 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 Westfall, 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 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 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.
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. 2679(b)(1). The central question in this case is whether, by designating the FTCA as the "exclusive remedy," 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 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 6 of the Act. As noted, see n. 5, supra, 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
The second basis of our interpretation arises from the express preservations of employee liability in 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 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
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. 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. 831c-2(a)(1). Under the TVA exception to the FTCA, 28 U.S.C. 2680(1), the Government may not be held liable for any claim arising from the TVA's activities. The Ninth Circuit inferred from the enactment of 9 that Congress must have expected that 5 would not shield TVA employees from liability where suit against the United States was precluded by 2680(1). 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 9. By its terms, 9 does not invest TVA employees with more immunity than 5 affords other Government employees. Rather, 9 provides merely that a suit against the TVA, 16 U.S.C. 831c-2(a)(1), rather than one against the United States, 28 U.S.C. 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. 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 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 9 supports no inference either way on the scope of 5 immunity when suit against the United States is precluded under the FTCA. Both the plain language and legislative history of 9 indicate that the provision was intended to give TVA employees the same degree of immunity as 5 gives other Government employees. Compare 28 U.S.C. 2679(b)(1), with 16 U.S.C. 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, 9 has no bearing upon whether Congress viewed 5 as protecting Government employees from liability when suit against the United States is precluded under the FTCA. 10
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. Lofsgaarden, 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. 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. 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 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 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 foreign - law 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
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 preexisting 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 6 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. 2679(b)(1) (emphasis added). No language in 6 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. 2679(b)(2); see also supra at ___. 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
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." 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 2679(b)(2)(B) "was intended to preserve the Gonzalez Act remedy, it was essentially without purpose." Post at ___. However, the dissent never attempts to square this assertion with the plain language of 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 ___, 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 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 ___. 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, U.S. Code Cong. & Admin.News 1988, p. 5950 (emphasis added). This congressional intent was clearly implemented in 5 of the Act, and we are obliged to give it effect.
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.
[ Footnote 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. 2401(b). See App. to Pet. for Cert. 17a-18a.
[ Footnote 3 ] Section 5 of the Act provides:
[ Footnote 4 ] Pursuant to 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. 2679. Respondents do not dispute that the Act applies in this case.
[ Footnote 5 ] Under 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. 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. 2679(d)(3).
[ Footnote 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.
[ Footnote 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.
[ Footnote 9 ] The legislative history fully supports our construction. In particular, the House Committee Report provides:
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, U.S. Code Cong. Admin.News 1988, p. 5951. 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
[ Footnote 10 ] We note, moreover, that Congress included within 9 a provision parallel to that under 5 preserving employee liability for Bivens actions. See 16 U.S.C. 831c-2(a)(2). Likewise, 9 contains language parallel to the "limitations and exceptions" language within 6. See 16 U.S.C. 831c-2(b)(4) (indicating that action against TVA under 9 "shall be subject to the limitations and exceptions applicable to" actions against the TVA generally).
[ Footnote 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), U.S. Code Cong. & Admin.News 1976, p. 4443. 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. 2702, the Veterans' Administration, see 38 U.S.C. 4116, and the Public Health Service, see 42 U.S.C. 233. Another immunity statute was enacted to shield Defense Department attorneys from claims of legal malpractice. See 10 U.S.C. 1054. Finally, before it was expressly repealed by the superseding provisions of the Liability Reform Act, the Federal Drivers Act, 28 U.S.C. 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.
[ Footnote 12 ] Section 1089(a) provides:
[ Footnote 13 ] Section 1089(f) provides:
[ Footnote 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 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).
[ Footnote 15 ] The dissent contends that we have rendered "virtually meaningless" the insure-or-indemnify clause of 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 ___. 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 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.
[ Footnote 16 ] The House Committee Report echoes the all-encompassing language of the statute:
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 2 and 5(b)(2)(B) of the statute, that Congress intended to preserve preexisting 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
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 ___, 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 ___. 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 (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. 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. 4 Congress summarized its purpose as follows:
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 [457 U.S. ___] 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:
As to 5(b)(2)(B), Congress provided no specific explanation for its inclusion, other than its general concern with preserving all preexisting 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 preexisting 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. 8 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. 9
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
The Court argues that the "Gonzalez Act remedy" has not been impliedly repealed, because
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 preexisting 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 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 preexisting claims. 13
In Westfall v. Erwin, 484 U.S. 292 (1988), we said that
I respectfully dissent.
[ Footnote 1 ] The Gonzalez Act, also known as the Medical Malpractice Immunity Act, authorizes indemnification as follows:
[ Footnote 2 ] According to the Department's regulations:
[ Footnote 3 ] As the Senate Report explained:
[ Footnote 4 ] In 2 of Pub.L. 100-694, 102 Stat. 4563, Congress set forth the findings and purposes of the Liability Reform Act:
[ Footnote 5 ] Senator Grassley, one of the sponsors of the legislation explained:
[ Footnote 6 ] Thus, a representative of the Department of Justice testified:
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).
[ Footnote 7 ] See, e.g., House Hearings 40, 58, 127, 195.
[ Footnote 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 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).
[ Footnote 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 ___, 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
[ Footnote 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:
[ Footnote 11 ] The theoretical possibility of litigation in a foreign court, see ante at ___, n. 15, was never even mentioned in the legislative history of either the Gonzalez Act or the Liability Reform
[ Footnote 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. ___ (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.
[ Footnote 13 ] In response to this dissent, the Court has restated its argument that respondent did not "violate" the Gonzalez Act. See ante at ___. 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 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.