Opposition Brief — United States v. Smith

In The

Supreme Court of the United States

October Term, 1989

*

UNITED STATES OF AMERICA, ET AL.

Petitioners,

MARCUS 5S. SMITH, ET AL.,

Respondents.

—o

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

>

BRIEF OF RESPONDENTS

MARCUS, HILDEGARD AND DOMINIQUE SMITH

IN OPPOSITION

*

Water A. Ovenrewsxi*

Asury Jom. Garoner

SiuimMan, Rocers, Ganpat, Porpy

& Ecwrre, PA.

One Montrose Metro

11921 Rockville Pike, Suite 300

Rockville, MD 20852

(301) 230-5218

“Counsel of Record

May 18, 1990

(12 RL) LAW BRD) PRINTING. CO). GD 2 oem

(mM CALL COM LMT co Me Pe

RECT AVAL ADIL CHD

QUESTION PRESENTED

Whether the Federal Employees Liability Reform and

Tort Compensation Act supercedes the Gonzalez Act and

deprives the Smiths of the cause of action against a

military physician (expressly recognized in subsection (f)

of the Gonzalez Act) for medical negligence committed

within the scope of his military medical duties overseas.

iv

TABLE OF AUTHORITIES

Cases

Aviles v. Lutz, 887 F2d 1046 (10th Cir. 1989)......... 22

Bradley v. Kissinger, 418 F. Supp. 64 (D.D.C. 1976) .... 10

Chew Heong v. United States, 112 U.S. 536 (1884)...... 9

Henderson v. Bluemink, 511 F.2d 399 (D.C. Cir. 1974) .... 17

Mitchell v. Carison, 896 F.2d 128 (Sth Cir. 1990)..... 22

Morton v. Mancari, 417 U.S. 535 (1974) , 10

Newman v. Soballe, 871 F.2d 969 (lith Cir. 1989)

..4 7, 14, 21, 22

Posadas v. National City Bank of New York, 296 US

497 (1936) 10

Rayonier, Incorporated v. United States, 352 U.S. 315

(1957) | 15

——- Sev. and Loan Ass'n v. Federal Home Loan

Bank of San Francisco, 724 F. Supp. 683 (N._D. Cal

1989) 12

Smuth v. Marshall, 885 F.2d 650 (9th Cir 1989) passim

State of South Carolina v. Stoll, 84 U.S. (17 Wall.)

425 (1873) )

Linsted States v. Vuitch. 402 US. 62 (1971) 9

Washington v. U.S. Postal Service, 1990 W.L. 36239

(N.D. Tl. 1990) 12

Westfall ». Erwin, 484 US. 292 (1988) 15, 16, 22, 23

ed >

Vv

TABLE OF AUTHORITIES - Continued

Wood v. United States, 41 U.S. (16 Pet.) 342 (1842)..... 4

STATUTES:

Federal Employees Liability Reform and Tort

Com tion Act of 1988, Pub. L. No. 100-694,

102 Stat. 4563 (1988) (codified at 28 U.S.C.

§ 2679 (Supp. 1989))...... 22... 6. cece cence eens passim

a 12, 16

ee eisbescecsecccccccccccccccceces 5

errr beessecdsccccccccccccocess passim

ccc e ec cccceccescccectooscecces 13

ccc crpeccccssseccsccccccccccces 13

ere ceseccccesscoccsccccccces 2, 5, 24

Nee ccasccccsccccces 12

ee esas ccecccccsercccvcccccccce 12, 19

Neen en seseccccesceees 20

a5 UGC. 6 BEFPDMI)..................---.0000000e. 18

28 U.S.C. § 2679(b)(2)....... eee ee 3, 11, 18, 19, 20

MT ikrcrcscrsccsescescccccccvccscess 19

ese cbbececeserccencccccescce: 19

EEE PTT TTTTETETET TTT TT 21

ee . cceccccscvencess 21, 22, 23

Ce 12, 13, 16

38 U.S.C. § 4116(a)........

vi

TABLE OF AUTHORITIES - Continued

Page

BD WE BH GRU cc cvccccccccccccseceenseccvesscces 13

Ge Ge Oe esc cccccccsent oeeeeeceessereeseess 12, 16

GD WA © Tie ccc cccccccccsSeccccccccscccecsccess 11

GB CRE © Bes vc cc ccccccccccscccecccesccesoscess 12

MISCELLANEOUS:

S. Rep. No. 94-1264, 1976 U.S. Code Cong. and

Se, Wen GED « ng 0'6.06806646660000060 00004 11, 16

No. 89-1646

>

In The

Supreme Court of the United States

October Term, 1989

2

UNITED STATES OF AMERICA, ET AL.,

Petitioners,

V.

MARCUS 5S. SMITH, ET AL.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF OF RESPONDENTS

MARCUS, HILDEGARD AND DOMINIQUE SMITH

IN OPPOSITION

2

Respondents Marcus, Hildegard and Dominique

‘Smith respectfully ask that the Petition for a Writ of

Certiorari sought by the United States to review the judg-

ment of the United States Court of Appeals for the Ninth

Circuit entered September 26, 1989 be denied.

SUMMARY OF THE ARGUMENT

The Petition for a Writ of Certiorari is based upon a

fundamental misstatement of the holding of the United

States Court of Appeals for the Ninth Circuit in Smith v.

Marshall, 885 F.2d 650 (9th Cir. 1989).

Contrary to the United States’ assertion, the court of

appeals did not hold that the Federal Employees Liability

Reform and Tort Compensation Act (“the FELRTCA”) is

inapplicable “whenever an exception to the Federal Tort

Claims Act would preclude an award of damages against

the United States”. Petition at 8.

To the contrary, the court of appeals held (1) that as a

military physician Dr. Marshall is susceptible to suit for

medical negligence committed within the scope of his

military medical duties overseas as provided in the

Gonzalez Act, 10 U.S.C. §1089(f); (2) that Dr. Marshall

enjoys immunity from personal liability (i.e. indemnifica-

tion by the United States) for any judgment rendered

against him in that action as provided in the Gonzalez

Act; and (3) that the FELRTCA does not deprive the

Smiths of the cause of action against Dr. Marshall pro-

vided in the Gonzalez Act.

The holding in Smith is consistent with the language,

purpose and legislative history of the Gonzalez Act, a

federal statute which specifically addresses the immunity

vel non of military physicians for claims based on medical

negligence committed within the scope of their military

medical duties overseas.

The holding in Smith is also consistent with the FEL-

RTCA, which was enacted to protect federal employees

from a perceived erosion in common law tort immunity

and was not intended to affect the immunity of federal

employees already protected by the Gonzalez Act and

other federal immunity statutes.

Consistent with this purpose, the FELRTCA and its

legislative history provide no evidence that Congress in-

tended to supercede or impliedly repeal the Gonzalez

Act. To the contrary, the FELRTCA expressly states that

the exclusive remedy provision (on which the United

States relies for the proposition that Dr. Marshall is abso-

lutely immune from suit) “does not extend or apply to a

civil action against an employee of the Government

which is brought for a violation of a statute of the United

States under which such action against the individual is

otherwise authorized.” See 28 U.S.C. §2679(b)(2).

As such, established principles of statutory construc-

tion support the court of appeals’ holding that the FEL-

RTCA does not supercede the Gonzalez Act, that Dr.

Marshall is susceptible to suit under the Gonzalez Act

and is entitled to immunity from personal liability for any

judgment entered against him in the Smiths’ action.

There is no controversy among the courts of appeals

concerning the proper resolution of the issue in Smith. To

the contrary, in the only other discovered case addressing

whether the FELRTCA supercedes a pre-existing federal

immunity statute, the United States Court of Appeals for

the Eleventh Circuit also held that a military physician-

defendant was specifically protected by the Gonzalez Act

and was therefore not among those federal employees

affected by the FELRTCA. See Newman v. Soballe, 871 F.2d

969 (11th Cir. 1989).

If the United States were to prevail on the position

advanced in the Petition, the parents of a severely injured

tort victim, now seven years old and without cognitive

life, will never recover damages that would at least ad-

dress the enormous cost of caring for their brain-devas-

tated child, and a military physician will avoid a

judgment for which the United States would ultimately

have indemnified him.

The court of appeals in Smith properly held that the

FELRTCA does not support this result and that the

Gonzalez Act expressly precludes it.

+>

REASONS WHY THE WRIT SHOULD BE DENIED

I. THE UNITED STATES MISSTATES THE HOLDING

OF THE COURT OF APPEALS IN SMITH ov. MAR-

SHALL

The United States’ assertion that the Supreme Court

of the United States should grant certiorari to review the

decision of the United States Court of Appeals for the

Ninth Circuit in Smith v. Marshall, 885 F.2d 650 (9th Cir.

1989), is based on a fundamental misstatement of the

holding in that case.

Contrary to the United States’ assertion, the court of

appeals in Smith v. Marshall did not hold that the FEL-

RTCA is inapplicable “and thus exposes federal employ-

ees to suit in their individual capacity - whenever an

exception to the Federal Tort Claims Act would preclude

an award of damages against the United States.” Petition

at 8. On the contrary, the court of appeals was not called

upon to decide an issue of such breadth. Instead, the

court of appeals properly delineated the only issues be-

fore it as follows: 1) whether an American military physi-

cian working in a foreign country is immune from a

malpractice suit under the Gonzalez Act, 10 U.S.C. § 1089

(1976)' and 2) whether an American military physician

working in a foreign country is immune from suit under

the recently-enacted Federal Employees Liability Reform

and Tort Compensation Act of 1988, Pub. L. No. 100-694,

102 Stat. 4563 (1988) (codified as amended at 28 U.S.C.

§ 2679 (Supp.1989)) See Smith v. Marshall, 885 F.2d at 651,

App. at 1-2a.?

Resolving the first of these issues, the court of ap-

peals properly held that the Gonzalez Act expressly gov-

erns the immunity vel non of military physicians who

commit acts of negligence within the scope of their mili-

tary medical duties, that subsection (f) of the Gonzalez

' The Gonzalez Act, 10 U.S.C. § 1089, also known as the

Medical Malpractice Immunity Act, is part of Chapter 55 of the

United States Code, entitled “[mjedical and dental care”. The

purpose of Chapter 55 “is to create and maintain high morale

in the uniformed services by providing an improved and uni-

form program of medical and dental care for members and

certain former members of those services, and for their depen-

dents.” See 10 U.S.C. § 1071.

2 Citations to “App.” are to the Appendix to the Petition.

Act plainly permits suit against individual military physi-

cians for medical negligence committed overseas,? that

subsection (f) of the Gonzalez Act accords such physi-

cians immunity from personal liability through indemni-

fication for any judgment rendered against them, and that

the Gonzalez Act therefore “does not give Dr. Marshall

[absolute] immunity from the Smiths’ suit.”4 See Smith v.

Marshall, 885 F.2d at 653, App. at 6a.

310 U.S.C. § 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 insur-

ance for any person described in subsection (a) for

damages for personal injury, including death, caused

by such person’s negligent or wrongful act or omis-

sion 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 for-

eign 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.

* The court of appeals properly noted that this conclusion

is consistent with the position of the majority of courts which

have interpreted the Gonzalez Act and with the legislative

history, which demonstrates that Congress did not intend to

leave victims of medical negligence committed by American

military physicians in foreign countries without a judicial rem-

edy. Smith v. Marshall, 885 F.2d at 653, App. at 6a.

After the filing of briefs on Dr. Marshall’s suscep-

tibility to suit under the Gonzalez Act, the United States

withdrew its Gonzalez Act argument entirely, thereby

conceding that Dr. Marshall is susceptible to suit under

the Gonzalez Act for medical negligence committed by

him overseas and must be indemnified for a judgment

subsequently rendered against him. In its place, the Unit-

ed States asserted that the FELRTCA, which was enacted

during the pendency of the appeal, provided an “inde-

pendent source” of immunity for Dr. Marshall which

superceded [and therefore impliedly repealed] the

Gonzalez Act. Id. at 654. The United States relied solely

upon this interpretation of the FELRTCA to support its

contention that Dr. Marshall was entitled to absolute

immunity. See Smith v. Marshall, 885 F.2d at 651, App. at

3a.

Rejecting this contention, the court of appeals con-

cluded that the FELRTCA “did not take away the Smiths’

[Gonzalez Act] cause of action against Dr. Marshall,” that

the FELRTCA is therefore inapplicable to this case, and

that “we join the Eleventh Circuit in holding that [the]

FELRTCA does not bar medical malpractice claims

brought against military personnel serving abroad.” Id. at

656, App. at 12-13a.

5 The United States did so based on the Eleventh Circuit's

decision in Newman v. Soballe, 871 F.2d 969 (11th Cir. 1989),

which was decided after oral argument in Smith. See Smith v.

Marshall, 885 F.2d at 651, App. at 3a.

Thus, Smith v. Marshall does not hold that the FEL-

RTCA is inapplicable whenever an exception to the Fed-

eral Tort Claims Act would preclude an award of

damages against the United States, only that the FEL-

RTCA does not bar medical malpractice claims cognizable

under the Gonzalez Act for the medical negligence of

military personnel serving abroad. Id.

Significantly, the United States has not asked this

Court to review those aspects of the Smith decision which

concern Dr. Marshall’s susceptibility to suit and entitle-

ment to indemnification under the Gonzalez Act. Instead,

the United States asks this Court to review the court of

appeals’ holding that the FELRTCA does not supercede

the Smiths’ Gonzalez Act remedy against Dr. Marshall.

Il. THE COURT OF APPEALS IN SMITH v. MAR-

SHALL PROPERLY HELD THAT THE FEDERAL

EMPLOYEES LIABILITY REFORM AND TORT

COMPENSATION ACT DOES NOT SUPERCEDE

OR IMPLIEDLY REPEAL THE GONZALEZ ACT

Underlying each of the positions advanced by the

United States is the erroneous assertion that FELRTCA

© For this proposition, the United States apparently relies

on a portion of the Smith opinion, not part of the holding, in

which the court of appeals reasoned that the Gonzalez Act

expressly provides for a remedy against an individual military

physician for medical negligence committed within the scope

of his military medical duties in a foreign country and conse-

quently that a subsequently-enacted statute which, like the

FELRTCA, simply fails to address a remedy for the same

wrong was insufficient to “take away” the Smiths’ Gonzalez

Act remedy.

impliedly repealed the Gonzalez Act. As set forth below,

established principles of statutory construction preclude

such a finding and further establish that Smith v. Marshall

was properly decided.

It is an established rule of statutory construction that

implied repeals are not favored and that if effect can

reasonably be given to consecutive statutes, the presump-

tion is that the earlier statute is intended to remain in

force.” United States v. Vuitch, 402 U.S. 62 (1971); Chew

Heong v. United States, 112 U.S. at 536.

Established principles of statutory construction also

dictate that a statute dealing with a narrow, precise and

specitic subject is not submerged by a later-enacted stat-

ute covering a more generalized spectrum and that ab-

sent a clear intention otherwise, a specific statute will not

be controlled or nullified by a general one, regardless of

? To find an implied repeal,

[t}]here must be a positive repugnancy between the

provisions of the new laws and those of the old, and

even then the old law is repealed by implication only

pro tanto, to the extent of the repugnancy .. . It must

appear that the later provision is certainly and clear-

ly in hostility to the former. If, by any reasonable

construction, the two statutes can stand together,

they must so stand. If harmony is impossible, and

only in that event, the former law is repealed in part,

or wholly, as the case may be.

Chew Heong v. United States, 112 U.S. 536 (1884), quoting Wood v.

United States, 41 U.S. (16 Pet.) 342 (1842) and State of South

Carolina v. Stoll, 84 U.S. (17 Wall.) 425 (1873).

10

the priority of enactment.® Morton v. Mancari, 417 U.S.

535, 550-51 (1974). “The issue breaks down to whether a

clear intention otherwise” can be discovered, whether, in

short, it can be fairly concluded that the [later statute]

operated as a pro tanto repeal of [the earlier one].” Bradley

v. Kissinger, 418 F. Supp. 64 (D.D.C. 1976). Such an inten-

tion on the part of the legislature to repeal must be clear

and manifest. Posadas v. National City Bank of New York,

296 U.S. 497, 503 (1936). It is not enough to show that the

two statutes produce differing results when applied to

the same facts for that no more than states the problem;

rather, when two statutes are capable of co-existence, it is

the duty of the courts to regard each as effective. Morton

v. Mancari, 417 U.S. at 551.

As between the FELRTCA and the Gonzalez Act, only

the Gonzalez Act addresses the narrow issue as to the

form of immunity applicable to a military physician with

respect to claims arising out of medical negligence com-

mitted within the scope of his military medical duties

8 In Morton v. Mancari, this Court articulated:

The reason and philosophy of the rule is that when

the mind of a legislator has been turned to the de-

tails of a subject, and he has acted upon it, a subse-

quent statute in general terms, or treating the subject

in a general manner, and not expressly contradicting

the original act, shall not be considered as intended

to affect the more particular or positive previous

provisions, unless it is absolutely necessary to give

the latter one such a construction, in order that its

words shall have any meaning at all.

417 U.S. at 551.

11

in a foreign country.? As such, unless the FELRTCA ex-

pressly repeals the Gonzalez Act, there is no foundation

for a finding that the FELRTCA applies to this case.

Far from expressly repealing the Gonzalez Act, the

FELRTCA expressly contemplates that other federal stat-

utes may authorize actions against individual federal em-

ployees and expressly provides that the FELRTCA shall

not be construed in derogation of such statutes. See 28

U.S.C. § 2679(b)(2). Thus, Section 5 of the FELRTCA states

that the exclusive remedy provision on which the United

States relies “does not extend or apply to a civil action

against an employee of the Government which is brought

for a violation of the Constitution of the United States

. or for a violation of a statute of the United States

under which such action against an individual is other-

wise authorized.” See 28 U.S.C. § 2679(b)(2), App. at

22a.

* As set forth in the legislative history of the Gonzalez Act,

Congress expressly recognized that the Federal Tort Claims Act

does not apply to actions arising overseas and designed sub-

section (f) indemnification to immunize a military physician

from personal liability for all claims arising in foreign coun-

tries. See S. Rep. No. 94-1264, 1976 U.S. Code Cong. and Ad-

min. News 4443, 4451.

10 While the United States questions, without the benefit

of authority, whether a Gonzalez Act suit against a military

physician is properly characterized as a “violation” of the

Gonzalez Act within the meaning of Section 5, no discovered

cases have held otherwise.

In addition, at least one court has held that the FELRTCA

does not immunize an individual federal employee from suit

under 42 U.S.C. § 1985, a federal statute which provides a

(Continued on following page)

12

Thus, Congress has nowhere demonstrated an inten-

tion to repeal the Gonzalez Act or the host of other pre-

FELRTCA immunity statutes tailored to the concerns of

specific branches or functions of government. See e.g. 22

U.S.C. § 2702 (1980) (immunity statute covering State

Department employees); 38 U.S.C § 4116 (1965) (immu-

nity statute covering Veterans Administration employ-

ees); 42 U.S.C. § 2458a (1976) (immunity statute covering

NASA employees); 42 U.S.C. § 233 (1970) (immunity stat-

ute covering Public Health Service employees); 10 U.S.C.

§ 1054 (1986) (immunity statute covering Department of

Defense employees).

That Congress did not intend the 1988 enactment of

the FELRTCA to impliedly repeal pre-existing immunity

statutes is further demonstrated by its 1988 amendment

of the Veterans Administration Medical Malpractice Im-

munity Act, 38 U.S.C. § 4116"! to state that “the exception

[to the United States’ liability under the Federal Tort

(Continued from previous page)

remedy for specified conduct (conspiracy to interfere with civil

rights) which cannot accurately be described as a “violation”

of 42 U.S.C. § 1985. Washington v. U.S. Postal Service, 1990 W.L.

36239 (N.D.IIl. 1990). Another court has held that the FEL-

RTCA does not immunize federal employees from suits which

“arise under” the United States Constitution or federal stat-

utes. See Saratoga Sav. and Loan Ass'n v. Federal Home Loan Bank

of San Francisco, 724 F. Supp. 683 (N.D. Cal. 1989).

" Significantly, the Gonzalez Act was patterned after and

is substantially similar to 38 U.S.C. § 4116, a statute which

Congress enacted in 1965 to immunize Veterans Administra-

tion employees from personal liability for malpractice

(Continued on following page)

13

Claims Act, 28 U.S.C. § 1346(b)] provided in section

2680(h) of title 28 [retaining the United States’ sovereign

immunity for assault and battery] shall not apply” to

claims arising under that Act. This amendment demon-

strates Congress’ understanding that specific federal im-

munity statutes would remain effective notwithstanding

the FELRTCA. The 1988 amendment of the Veterans Ad-

ministration Medical Malpractice Immunity Act to pro-

vide a remedy for assault and battery,'? a cause of action

likely to arise out of a physician’s failure to provide a

patient with informed consent, also evidences Congress’

intent to tailor immunity statutes to the particular func-

tions of specific federal employees and to compensate

victims of their negligence.

Because the FELRTCA and its legislative history do

not support a finding that the FELRTCA impliedly re-

peals or otherwise supercedes the Gonzalez Act, the court

of appeals properly reconciled the statutes by holding, in

conformity with the only other court of appeals to have

addressed this issue, that as a military physician Dr.

Marshall is specifically protected by the Gonzalez Act

(Continued from previous page)

judgments and to compensate malpractice victims. See 38

U.S.C. § 4116. In addition to having identical purposes, each

act contains an almost identical opening subsection in which

the Federal Tort Claims Act is made the “exclusive remedy” for

specific torts. See 10 U.S.C. § 1089(a) and 38 U.S.C. § 4116(a).

Each act also contains a subsection which, in almost identical

terms, permits suit against an individual physician for medical

negligence arising in a foreign country and provides that the

physician shall be indemnified for any judgment rendered

against him in that action. See 10 U.S.C. § 1089(f) and 38 U.S.C.

§ 4116(e).

12 The Gonzalez Act so provides at 10 U.S.C. § 1089%e).

14

and is not among those federal employees affected by the

FELRTCA. See Newman v. Soballe, 871 F.2d at 969, 971

(11th Cir. 1989), and Section V, infra.

Ill. THE HOLDING OF THE COURT OF APPEALS IN

SMITH v. MARSHALL IS CONSISTENT WITH

THE PURPOSE AND LEGISLATIVE HISTORY OF

THE GONZALEZ ACT AND THE FEDERAL EM-

PLOYEES LIABILITY REFORM AND TORT COM-

PENSATION ACT

Properly stated, the holding in Smith is consistent

with the FELRTCA’s stated purpose “to protect federal

employees from personal liability for common law torts

committed within the scope of their employment”. See

Petition at 13, 21a. Indeed, the court of appeals held that

the Gonzalez Act plainly immunizes Dr. Marshall from

personal liability for any judgment rendered against him

in the Smiths’ action. As such, the holding in Smith does

not expose Dr. Marshall or other federal employees to

personal liability’? and is consistent with the stated pur-

pose of the Gonzalez Act and the FELRTCA.

Moreover, as stated in its preface, the FELRTCA was

enacted to protect federal employees from a perceived

erosion in common law tort immunity caused by this

13 Thus, the United States’ assertion that Smith v. Marshall

“renewls] the threat of individual liability,” “impedels] the

ability of the government to perform its responsibilities” and

“expose[s] a half million urban federal employees in the Ninth

Circuit to liability” is plainly wrong. Petition at 9.

15

Court’s decision in Westfall v. Erwin,'4 484 U.S. 292 (1988),

not to amend or repeal immunity statutes already enacted

by Congress.'5 Indeed, this Court in Westfall appeared

14 Because the defendants in Westfall were executive

branch employees not covered by then-existing federal immu-

nity statutes, the sole issue in Westfall was the immunity vel

non to be accorded those employees under coramon law princi-

ples of immunity. In resolving this issue, this Court explained

that official immunity should obtain only when the central

purpose of official immunity, promoting effective government,

outweighs the human cost associated with depriving a tort

victim of a judicial remedy:

This Court has always recognized . . . that official

immunity comes at a great cost. An injured party

with an otherwise meritorious tort claim is denied

compensation simply because he had the misfortune

to be injured by a federal official. Moreover, absolute

immunity contravenes the basic tenet that individu-

als be held accountable for their wrongful conduct.

We therefore have held that absolute immunity for

federal officials is justified only when the contribu-

tions of immunity to effective government in partic-

ular contexts outweigh the perhaps recurring harm

to individual citizens.

484 U.S. at 294. This Court consequently held that federal

employees are not entitled to common law immunity unless

the challenged conduct is within the outer perimeter of the

employees’ duties and is discretionary in nature.

'S In addition, the established principle that liability under

the Federal Tort Claims Act is determined according to the

substantive law of the place in which the alleged negligence

occurred may mandate a finding that the substantive law of

Italy, not the [American] common-law of tort, will govern this

action. See e.g. Rayonier, Incorporated v. United States, 352 US.

(Continued on following page)

16

to endorse the Gonzalez Act and other existing function-

specific immunity statutes by articulating that whether

immunity is warranted in a particular context should

depend on the degree to which the official function

would suffer under the threat of potential litigation and

consequently that a determination as to the propriety of

shielding an official from suit should be based on a

“functional” inquiry, i.e., immunity attaches to particular

official functions, not to particular offices. In this Court’s

view, the adoption of a functional approach properly

addressed the concern that federal officials enjoy immu-

nity only insofar as the benefits of immunity outweigh

the costs. See Westfall v. Erwin, 484 U.S. at 296, n. 3.

Significantly, neither the Westfall decision nor the

legislative history of the subsequently-enacted FELRTCA

supports the United States’ assertion that the FELRTCA

was designed to cover the entire federal work force with

one unified scheme of immunity, thereby superceding

and impliedly repealing all pre-existing immunity stat-

utes (including those which, like the Gonzalez Act, ex-

pressly recognize that military physicians should be

qualifiedly rather than absolutely immune from tort lia-

bility in specific circumstances). See also 38 U.S.C. § 4116;

42 US.C. § 233; 10 U.S.C. § 1054 (other federal immunity

(Continued from previous page)

315 (1957). Neither the FELRTCA nor its legislative history

suggests that the FELRTCA was intended to apply in this

circumstance. The Gonzalez Act, on the other hand, was de-

signed to apply in precisely this circumstance. See S. Rep. No.

94-1264, 1976 U.S. Code Cong. and Admin. News 4443, 4451.

17

statutes which expressly provide that Veterans Adminis-

tration medical personnel, Public Health Service medical

personnel, and Department of Defense legal personnel

should be qualifiedly rather than absolutely immune for

tort claims arising in foreign countries.) To the contrary,

by suggesting that “Congress is in the best position to

legislate [applicable immunity standards]”, this Court in-

vited Congress to address the desirability of additional

function-specific immunity statutes tailored, like the

Gonzalez Act, to minimize the human cost of immunity

and to assure that deserving claimants not be deprived of

remedies without a significant and corresponding benefit

to the efficiency of government.1¢

IV. THE HOLDING OF THE COURT OF APPEALS IN

SMITH v. MARSHALL DOES NOT CONTRAVENE

THE EXPRESS LANGUAGE OF THE FEDERAL

EMPLOYEES LIABILITY REFORM AND TORT

COMPENSATION ACT

The United States asserts that the holding in Smith

contravenes the exclusive remedy provision of Section 5

16 Significantly, it has been recognized that the chief policy

underlying the creation of immunity for lower governmental

officials, the desire to encourage “the fearless, vigorous and

effective administration of policies of government,” does not

apply to the exercise of medical discretion. This is because the

threat of liability for medical negligence does not deter the

fearless exercise of medical discretion within government ser-

vice any more than it deters the fearless exercise of medical

discretion outside government service. See Henderson v. Blue-

mink, 511 F.2d 399, 403 (D.C. Cir. 1974).

18

of the FELRTCA’”. Even assuming arguendo that the FEL-

RTCA applies to medical negligence claims arising in a

foreign country, Section 5 does not mandate a finding that

federal employees are universally immunized for all torts

committed within the scope of employment regardless of

whether an alternative federal tort remedy obtains

against the United States or against the individual under

other federal statutes. Thus, while Congress could ex-

pressly have stated that “any other civil action against the

employee is precluded without regard to the existence of

a remedy against the United States or the existence of a

remedy against the individual under any other federal

statute,” it did not do so in Section 5 or elsewhere in the

FELRTCA.

Moreover, other portions of Section 5 of the FEL-

RTCA, codified at 28 U.S.C. § 2679(b)(2), preclude a find-

ing that Congress intended to immunize all federal

employees from suits specifically authorized under the

17 Section 5 provides:

[t]he remedy against the United States provided by

i346(b) and 2672 of this title . . . 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 omis-

sion occurred.

See 28 U.S.C. § 2679(b)(1).

19

Gonzalez Act. These expressly provide that the “exclu-

sive remedy” provision on which the United States relies

“does not extend or apply to a civil action against an

employee of the Government which is brought for a

violation of a statute of the United States under which

such action against the individual is otherwise autho-

rized”. See 28 U.S.C. § 2679(b)(2) and discussion at Sec-

tion II, supra.

In a futile attempt to counter the clear import of this

provision, the United States asserts that the FELRTCA

supercedes the Gonzalez Act by providing, in subpara-

graph (4) of Section 6, codified at 28 U.S.C. § 2679(d)(4),

that an action or proceeding subject to paragraphs 1, 2

and 3 of the FELRTCA (including the exclusive remedy

provision) “shall proceed in the same manner as any

action against the United States filed pursuant to section

1346(b) of this title and shall be subject to the limitations

and exceptions applicable to those actions.” 28 U.S.C.

§ 2679(d)(4). Clearly, this provision articulates circum-

stances under which suit against the United States must be

dismissed, is insufficient to preclude suit against the re-

sponsible individual expressly authorized under other

immunity statutes, and therefore does not warrant an

inference that Congress intended to preclude a Gonzalez

Act suit against an individual physician for medical neg-

ligence committed within the scope of his military medi-

cal duties in a foreign country.

In a further attempt to support the assertion that the

FELRTCA “expressly” immunizes Dr. Marshall from suits

expressly authorized under the Gonzalez Act, the United

States turns to Section 6 of the FELRTCA, codified at 28

U.S.C. § 2679(d), which provides for substitution of the

20

United States as defendant (upon certification by the

Attorney General that the employee was acting within

the scope of his office or employment) and provides for

remand upon the district court’s determination that the

employee was not acting within the scope of his employ-

ment.

The United States seeks to infer from these provi-

sions of Section 6 that an action may not be remanded

(and therefore may not be maintained) against the employ-

ee unless the challenged conduct was outside the scope of

his employment. Clearly, Congress envisioned that suits

against individual federal employees which arise under

the Constitution and federal statutes (as provided in Sec-

tion 5 of the FELRTCA, codified at 28 U.S.C. § 2679(b)(2)),

would necessarily be pursued in federal court and there-

fore would not be remanded to state court.'* Beyond this,

the very fact that Congress envisioned and approved the

pursuit of constitutional or federal statutory actions

against individual federal employees is, without more,

sufficient evidence that Smith v. Marshall was properly

decided.

Finally, the manner in which Congress chose to inte-

grate the FELRTCA within Chapter 171 of the Federal

Tort Claims Act precludes a finding that Congress intend-

ed to foreclose suit against an individual based on

‘8 The FELRTCA contains no provision expressly or impli-

edly excepting it from the operation of 28 U.S.C. § 1447, the

federal statute which applies to all remands for lack of jurisdic-

tion. -

21

the foreign country exception to the Federal Tort Claims

Act.19 See 28 U.S.C. § 2680(k). Incontrovertibly, the FEL-

RTCA is part of Chapter 171 of the Federal Tort Claims

Act, a chapter which also includes the Section 2680 excep-

tions to the liability of the United States under the Feder-

al Tort Claims Act. Significantly, Section 2680 expressly

states that the provisions of Chapter 171 (including the

FELRTCA) shall not apply to claims arising in a foreign

country. See 28 U.S.C. § 2680(k). This express limitation

on the scope of the FELRTCA also supports the court of

appeals’ holding that the FELRTCA does not supercede

the Gonzalez Act or otherwise apply to this case. See

Newman v. Soballe, 879 F.2d at 971.

V. THERE IS NO CONTROVERSY AMONG THE

COURTS OF APPEALS CONCERNING THE

HOLDING IN SMITH v. MARSHALL

Erroneously, the United States asserts in its Petition

that the Fifth and Tenth Circuits have concluded that the

FELRTCA applies to all tort suits against federal employ-

ees who have acted within the scope of their employ-

ment, whether or not a claim falls within an exception to

19 That Congress chose to place the FELRTCA amendment

to the Federal Tort Claims Act within the confines of Chapter

171 cannot be ascertained from the amendment as it appears in

the Appendix to the Petition. Only by reading the amendment

in the United States Code or other integrated publications is it

apparent that the scope of the FELRTCA is expressly limited by

the subsection 2680 exceptions to the tort liability of the United

States, including Section 2680(k), which excepts the United

States from liability for claims arising in a foreign country.

22

the Federal Tort Claims Act. Petition at 11-12, citing Mit-

chell v. Carlson, 896 F.2d 128, 134-35 (5th Cir. 1990); Aviles

v. Lutz, 887 F.2d 1046, 1049 (10th Cir. 1989) (emphasis

original). In actuality, neither Mitchell nor Aviles involved

the issue as to whether the FELRTCA supercedes or re-

places a pre-existing federal immunity statute expressly

designed to cover the specific employee and conduct

there at issue.

Indeed, of all discovered cases concerning the FEL-

RTCA, only one case (in addition to Smith) has addressed

whether the FELRTCA supercedes another federal immu-

nity statute. See Newman v. Soballe, 871 F.2d at 969. In

Newman, as in Smith, the issue was whether t) er “RTCA

superceded the Gonzalez Act with resp » claims

against military physicians arising out of me.i uegli-

gence committed in a foreign country. Resoiving this

issue in the negative, the United States Court of Appeals

for the Eleventh Circuit properly held that “[a]s a military

physician, [the defendant] is specifically protected by the

Gonzalez Act and is therefore not among those federal

employees affected by the Westfall decision or the [FEL-

RTCA].” Id. at 971. The Court further noted that the

FELRTCA is part of Chapter 171 of the Federal Tort

Claims Act, the provisions of which, by the express terms

of Section 2680, do not apply to any claim arising in a

foreign country. Id. See also 28 U.S.C. § 2680(k).

As such, the only courts of appeals to have addressed

whether the FELRTCA supercedes the Gonzalez Act's

provision for a suit against an individual military physi-

cian based on medical negligence claims arising overseas

have unequivocally held that it does not. Consequently,

23

there is no split in the circuits concerning the holding

here at issue.

VI. THE HOLDING OF THE COURT OF APPEALS IN

SMITH v. MARSHALL IS A CORRECT STATE-

MENT OF FEDERAL STATUTORY LAW AND

ANY AMENDMENTS THERETO SHOULD BE

LEFT TO CONGRESS

Incontrovertibly, the United States’ arguments are

designed to one overwhelming end; to prevent Marcus

and Hildegard Smith from recovering for the heartbreak-

ing, emotionally and financially devastating injuries

which their son Dominique, now seven years old and

without cognitive life, suffered as an infant in Dr. Mar-

shall’s care. Clearly, Congress did not intend by enacting

the statutes at issue to deprive deserving claimants of a

remedy and would not have sanctioned the manner in

which the United States, for the last four years, has used

first one statute and then the other to prevent an inno-

cent, devastated family from obtaining the compensation

that would at least address the cost of caring for their

brain-devastated child. Nor did Congress intend to pre-

vent recompense simply because the child’s father had

the misfortune to be stationed abroad in the service of his

country when his child was born.

Clearly, both the Gonzalez Act and the FELRTCA

evince Congress’ intention to protect federal employees

from personal tort liability while simultaneously “provid-

ing persons injured by the common law torts of federal

employees with an appropriate remedy against the

United States.” App. at 20a. Equally clearly, the holding

of the court of appeals in Smith v. Marshall unequivocally

24

accords with the purpose of each statute by permitting

the Smiths to pursue a cause of action expressly recog-

nized in subsection (f) of the Gonzalez Act and by con-

firming the United States’ obligation, also set forth in

subsection (f), to immunize Dr. Marshall from personal

tort liability by indemnifying him from the judgment

entered in the Smiths’ action.?°

Under these circumstances, it is impossible to discern

error in the decision of the court of appeals. Indeed, if

there is error, as the United States asserts, it must be in

Congress’ failure to have expressly repealed all pre-exist-

ing immunity statutes when it enacted the FELRTCA, not

in the court of appeals’ failure to have adjudicated the

repeal of the Gonzalez Act and the many other specific,

well-tailored immunity statutes carefully crafted by Con-

gress during the past several decades. If Congress intend-

ed to repeal these statutes, there is today no evidence of

that intent, and it should be left to Congress to address

this issue in the future.

+

20 Curiously, the United States’ position in this matter

exposes military physicians now protected by Gonzalez Act

indemnification to the threat of personal liability for medical

malpractice judgments entered in foreign courts. Thus, the

United States conceded below that the Federal Tort Claims Act

has no jurisdictional reach in foreign tort actions and that the

only form of immunity available to military physicians sued in

foreign courts is the indemnification provided by subsection (f)

of the Gonzalez Act. The United States’ position that the FEL-

RTCA supercedes the Gonzalez Act would, if accepted, deprive

all military physicians now practicing overseas of the benefit

of their only source of immunity from personal liability for

foreign judgments, an untenable result which Congress did not

legislate or intend.

25

CONCLUSION

For the aforestated reasons, Respondents Marcus,

Hildegard and Dominique Smith respectfully request that

the Petition for a Writ of Certiorari be denied.

Respectfully submitted,

Wa ter A. OLENIEWSKI"*

AsHLeY Joe GARDNER

SHULMAN, Rocers, GANDAL, PoRrny

& Ecxer, P.A.

One Montrose Metro

11921 Rockville Pike, Suite 300

Rockville, MD 20852

(301) 230-5218

Attorneys fur Respondents

*Counsel of Record

May 18, 1990