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Reconciling the FTCA and the Gonzalez Act

Blogs from January, 2019


An interesting case was recently argued in the Supreme Court that concerns various aspects of our practice. The case is entitled Levin v. United States, and it is an appeal from the Ninth Circuit case 663 F.3d 1059 (2011). Of concern to our practice is how the courts will interpret certain aspects of the Federal Tort Claims Act (FTCA), specifically with regard to suits against medical personnel employed by the U.S. government.

In this case, the Plaintiff was recommended to undergo a surgery on his eye by his doctor at a U.S. Naval Hospital in Guam. He signed consent forms in advance of the procedure. Just before the procedure, he alleges that he tried to orally revoke his informed consent. The procedure resulted in injuries, which resulted in this litigation.

He originally alleged malpractice under a negligence theory, and he also alleged the intentional tort claim of battery, under the theory that he revoked informed consent.  He was unable to find expert medical testimony to support his negligence theory, and so that claim was dismissed on summary judgment. What remained was his battery claim.

By the time the case rose on appeal to the Ninth Circuit, the question was how the Gonzalez Act and the FTCA were to be reconciled in the context of this case. The FTCA waives the United States’ sovereign immunity from lawsuits, but only as to negligence actions. It expressly provides that it does not waive immunity for battery actions. In other words, the U.S. IS immune from such suits. However, the Gonzalez Act contains language that purports to waive such immunity in suits “arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.”

The Ninth Circuit held that the Gonzalez Act does not provide a waiver of immunity.  It employed a two-part rationale. First, the court noted that if the Gonzalez Act did, such a waiver would defeat the clear language of the FTCA, which clearly contemplates a waiver for negligence claims, and a non-waiver for battery claims. Second, the court noted that case law provides that waivers of sovereign immunity must be clear and unequivocal, and while the FTCA uses clear and unequivocal language, the Gonzalez Act’s language is ambiguous and requires inference to reach the conclusion that Levin advanced.

The Supreme Court granted certiorari, and oral arguments occurred a couple of weeks ago. The oral arguments reveal that a majority of justices seem to think differently than the Ninth Circuit. The base issue that the Supreme Court seems to be dealing with is, how clear and unequivocal must a waiver of sovereign immunity be?

It is possible, that, in deciding this issue, depending on the language used, the Court could loosen the standard for waiver of sovereign immunity. This could result in more litigation against the United States.

The arguments also indicate, however, that the justices seem to be sure that the Gonzalez Act is not as ambiguous as the Ninth Circuit would have you believe. If five or more justices can agree on that, then it is possible that the larger issue of how clear a waiver must be will not be reached by this opinion, and that question will be left for another day.

In the context of our practice, even the narrower question will have effects. We will be watching this case and report on the outcome when the opinion is issued.