Levin v. United States (11-1351)

argument 11-1351

Levin v. United States

Supreme Court of the United States 57 min 6 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central issue being argued in Levin v. United States?

John G. Roberts 0:01

We'll hear argument first this morning in Case 11-1351, Levin v. United States. Mr. Feldman.

Andrew J. Feldman 0:08

Mr. Chief Justice, and may it please the Court, as the language and structure of the Gonzales Act demonstrate, Congress did not completely eliminate the long-recognized tort remedy that's available to essentially everybody else in the country when doctors perform surgery without a patient's consent. By abrogating the intentional tort exception to the FTCA for the class of cases covered by the Gonzales Act, Congress both preserved a remedy for the victims of that tort, and by virtue of the Gonzales Act's exclusive remedy provision, they made certain that the Federal employees themselves would not be sued. As everyone understood at the time of the enactment, that was the meaning of the terms of the Gonzales Act.

Andrew J. Feldman 0:51

The Act has two clauses, an operative clause and an introductory clause. The operative clause says in simple declarative terms that the intentional tort exception to the Federal Tort Claims Act shall not apply to any cause of action arising out of a wrongful act or omission in the performance of medical functions.

Ruth Bader Ginsburg 1:10

But it says first, for purposes of this section, and as I understand your argument, those words don't count. In other words, you would be making You would interpret the statute the same way if the sentence started with the provisions of Section 2680H. MR.

Andrew J. Feldman 1:33

No, Your Honor, that's not right. We — the part after the introductory clause says the provisions of the intentional tort exception shall not apply to medical malpractice cases, and that would make it apply across the government to any government employee who who's performing those medical functions. By saying for purposes of this section, Congress limited it in accordance with the agency-by-agency approach that it had adopted in this area and limited it to just the cases that are covered by the Gonzales Act. That is, by malpractice that's committed by doctors of the Department of Defense, the National Guard, the Armed Forces Retirement Home, and so on. And so each clause serves quite an important function.

Andrew J. Feldman 2:18

Congress had before the Gonzales Act, they had already passed statutes dealing, for example, with the public health service that's essentially written in the same terms, with the Veterans Administration, although part of that was then added later, with the State Department doctors, and so on. And so they were proceeding on an agency-by-agency basis, and the way to accomplish that was to first say, we think that the intentional tort exception should not apply to these cases because medical batteries of the sort that is alleged in this case are so close to to the kinds of medical malpractice cases that are going to be brought against the government anyhow. But then in each statute, they say for purposes of this section, because it's only the agencies, only the personnel covered by those sections and the torts covered by that section.

Ruth Bader Ginsburg 3:01

The Veterans Administration, it doesn't say that, does it? The

Andrew J. Feldman 3:04

Veterans Administration originally, the original Veterans Administration statute, which was from about 1965, doesn't have this 1089E intentional tort exception at all in it. But then they added it later, about 10 years after this statute, and then they added a provision that was slightly worded differently. But it achieves exactly the same result. Instead of saying for purposes of this section, it says by the personnel named in Section A, which accomplishes exactly the same thing. And actually, if you look at the history of that statute, the Senate report on that statute quite clearly recites that Congress understood that 1089E The statute here has exactly the effect that I said, and they said we are modeling it on that provision.

Andrew J. Feldman 3:53

And then they did tinker with the wording, and there's actually no explanation for the specific change. But it's not uncommon that in statutes that have been reviewed by different committees in the past 10 or 12 years apart, that Congress would use slightly different language to achieve essentially the same purpose.