Steven Alan Levin v. United States et al.

Oral argument transcript · No. 11-1351 · October Term 2012 · argued January 15, 2013 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• James A. Feldman, Washington, D.C., for the petitioner
• Pratik A. Shah, Assistant to the Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 11-1351, Levin v. United States. Mr. Feldman? ORAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER

James A. Feldman: Mr. Chief Justice, and may it please the Court: As the language and structure of the Gonzalez 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 Gonzalez Act, Congress both preserved a remedy for the victims of that tort, and, by virtue of the Gonzalez 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 Gonzalez Act. The Act has two clauses, an operative Alderson Reporting Company Official 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.

Justice Ginsburg: Mr. Feldman, but it says, first, "for purposes of this section." And, as I -- 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 2680(h)."

James A. Feldman: No, Your Honor. That's not right. We -- we -- that -- that -- 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 is performing those medical functions. By saying, "for purposes of this section," Congress limited it in accordance with the case -- the agency by agency approach that it had adopted in this area and limited it to just the cases that are covered by the Gonzalez Act; that is, by malpractice that's committed by doctors of the Department of Defense, the Alderson Reporting Company Official National Guard, the Armed Forces Retirement Home, and so on. And so the -- each clause serves quite an important function. Congress had before the Gonzalez Act -- they had already passed the 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 -- we think that the intentional tort exception should not apply to these cases because in medical batteries of the sort that we -- as alleged in this case, are so close 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 those sections.

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

James A. Feldman: The Veterans --

Justice Ginsburg: Yes. Alderson Reporting Company Official

James A. Feldman: The Veterans Administration, originally -- the original Veterans Administration statute, which was from about 1965, doesn't have this 1089(e) 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 1089(e), the statute here, has exactly the effect that I said. And they said, we are modeling it on that provision. 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 and passed 10 or 12 years apart, that Congress would have a -- they would use slightly different language to achieve, essentially, the same purpose.

Justice Breyer: What would -- what do you do, if anything, about those of us -- I hope more than one -- who actually look at legislative history, and the Alderson Reporting Company Official House and Senate Report -- the Senate Report says Subsection (e) would nullify a provision of the Tort Claims Act, which would otherwise exclude any action for assault and battery, then the House says about the same thing. So, when I look at those two things, I think the purpose of this Act was to do just exactly what the other side says, it was to get rid of assault and battery as an exception and said the government of the United States will pay for unlawful assault and battery. That's what the two reports say. That's why they passed it.

James A. Feldman: Right. I believe, actually, that's our -- that -- that's the way we read it, exactly like that, which is the -- by nullifying the intentional tort exception -- what the intentional tort exception provides is -- actually, what it says, is, "The provisions of the Federal Tort Claims Act shall not apply to any case arising out of assault, battery," and so on. And, by eliminating that, the -- the provisions of the Federal Tort Claims Act are otherwise totally applicable to cases of medical battery, like this, or other kinds of intentional tort. And so, for cases, covered by the Gonzalez Alderson Reporting Company Official Act -- that is, cases of medical malpractice committed within the scope of employment by the doctors of the certain specified agencies that Congress has named -- for those cases, there is no intentional tort exception, and, therefore, you can bring an action against the government.

Chief Justice Roberts: I don't quite understand your answer to Justice Ginsburg on the "for purposes of this section." What the section does is provide that the remedy against the United States is exclusive. But what the 1089(e) goes on to say is that the 26 -- the 2680(h) provision doesn't apply. So I don't see how that -- I mean, the -- the reference is to the exclusivity, not to the waiver of the limitation on -- on intentional torts.

James A. Feldman: Well, I don't think that that's right. I mean, I think, for purposes of this section, you have to read it in context. And the fact is that 2680 -- the term "2680(h) of Title 28" doesn't appear elsewhere in the Gonzales Act. The only work that that provision does in the law, section -- the intentional tort exception, 2680(h) of Title 28, the only work that that does is to make the -- is in the Federal Tort Claims Act, is to make the -- the Act inapplicable to those kinds of Alderson Reporting Company Official cases. So when they say, in simple terms, that shall not apply, all that could mean -- all that could possibly mean is you eliminate that, and then you have the Tort Claims Act how it is. And then what the four purposes of this section does is say, but we're not doing that across the board for every Federal employee everywhere or even every malpractice case. We are just doing it for the claims that are covered -- for the cases that are covered in this section -- for purposes of this section. In this section, if you look at (a), then, (a), which is the -- you know, basic exclusive remedy provision that Your Honor mentioned, what (a) does is deal specifically with -- intent with medical malpractice committed by doctors and personnel.

Justice Sotomayor: Well, one of the strongest arguments by your adversary has to do with the incongruity between these claims and the Westfall ruling by this Court. It's more a policy argument than a language argument, but how do you address the fact that we will be interpreting, essentially, two statutes that are almost identical, but with different conclusions now, if we were to adopt your view.

James A. Feldman: Right. I -- I think there Alderson Reporting Company Official are -- there are a few reasons why the statutes have to be construed differently. I mean, one is that, if you look at the Court's decision in Smith, where it construed that provision of the Westfall Act, it -- the Court never suggested that the language -- the part of the Westfall Act whose language is the same as this supported its conclusion there. It was relying on other provisions in the Westfall Act. In particular, there was a provision that said, "Once the government substitutes itself for the defendant, the case shall proceed, subject to all the exceptions and limitations in the Tort Claims Act." And the Court said, well, yes, that -- that gives us a clear understanding that, whether there's exceptions or not, we want that case to proceed -- to proceed. That provision isn't here in the Gonzalez Act. And there was another provision in the Westfall Act -- in the Smith case, in the Westfall Act, that dealt with making a specific exception for Bivens cases. And, again, that provision isn't here. And that --

Justice Scalia: But why -- why would Congress want to treat them differently?

James A. Feldman: Right. I think the reason is, when they were dealing in this case with this area in Alderson Reporting Company Official 1976, they were dealing with a specific problem of medical malpractice, and they were looking at that -- that problem, doctors, doctors had to get insurance, what are we going to do about that for Federal employees? And they were -- when they focused on that problem -- actually, as the Executive Branch itself said in a letter that was sent to the Senate committee, it said there's an urgent need, both, to assure adequate remedies for tort victims and to protect Federal employees. And that's what they were trying to do here, and I think you see it throughout the Gonzalez Act. But --

Justice Scalia: But why -- why did they feel the need here to assure adequate remedies for tort victims, where they did not in -- in the Westfall Act?

James A. Feldman: Well --

Justice Scalia: I mean -- you know, injured tort victims are injured tort victims. It does seem -- you know, rather odd that, in -- in one instance, Congress would be concerned and, the other, not concerned.

James A. Feldman: Right. I think the difference is that, here, they were dealing specifically with the Alderson Reporting Company Official problem of medical malpractice. 12 years later, when they got around to the Westfall Act, they weren't looking at medical malpractice. They were looking, generally, at a whole -- the whole problem of government employees being sued after this Court's decision in the Westfall case, a problem that particularly affected, actually, lower level government employees who were -- it's clear, couldn't take advantage of the discretionary function exception. And, when they are looking at the broad universe of employees, they took a different approach and decided, well, we're just going to -- some people are just going to be out of luck because this is the -- the determination that Congress made -- felt was appropriate there. But, when it was looking at the specific problem of medical malpractice in the Gonzalez Act, it definitely took the position, as everybody said at the time and as the structure of the Act itself showed, that they wanted to preserve remedies. And there are two provisions in the Westfall Act that make that clear --

Justice Alito: Well, maybe we could address this in slightly more concrete terms. You have two -- two situations. In one case, a Federal employee who's Alderson Reporting Company Official driving a car deliberately runs somebody down. And, in the second case, a government doctor grabs somebody who doesn't want an operation and performs the operation anyway. Now, as -- under your reading, there would -- there would be a claim against the government in the second situation, but not in the first situation; is that right?

James A. Feldman: That -- that's correct.

Justice Alito: Why would Congress want that?

James A. Feldman: The reason they'd want it is this: In the first situation, that -- that really arose -- that -- that problem came with the Tort Claims Act when it was first enacted in 1946. And, when Congress was looking at the universe of Federal employees, they felt -- and, especially, given the law at that time and that continued really up to the present, that, when a Federal employee or average Federal employee, for the types of intentional torts that they commit, especially a battery, it's extraordinarily unlikely that that's going to be within that scope of that employee's employment. And Congress felt, well, we want to just eliminate that altogether. It's not just to hold the Alderson Reporting Company Official government responsible for that kind of a claim, when some Federal clerk slugs someone or something like that, and that was the determination they made. When they got around to 1976, to dealing with the particular problem of medical malpractice, the -- it doesn't actually usually happen -- these kinds of claims don't arise -- I'm not aware of anywhere a doctor just grabs somebody and throws him, physically, into the operating room. They happen when the doctor is performing some procedure and performs a different procedure or a procedure that was not authorized by the patient. And that -- that is very closely related to core medical malpractice claims of exactly the sort that they were dealing with here. It's very closely related to informed consent claims, which I believe the government -- I read the government to be conceding, could be brought against the government. And they thought there was no reason to distinguish -- to distinguish one type of medical malpractice from another. We want all of these claims, we want to provide a remedy, and they all should be brought against the government. I would add one other --

Justice Kennedy: In law review commentaries Alderson Reporting Company Official and maybe in lower courts' opinion, is there -- is it fair to say that the weight of authority is to criticize the battery-negligence distinction as being productive of litigation and not really making a lot of sense?

James A. Feldman: I think that is fair to say, and -- you know, States -- a lot of States have dealt with this by dealing with -- in statutory -- in statutes, not in common law development, so they could kind of rationalize the system and say, look, this is the kinds of claims you're going to have. But the key thing is that everybody in the country, I think, under every State's law, if a doctor performs an operation that you didn't consent to, you have an action in tort. And that protects both you and provides an incentive -- an important incentive, to doctors and medical personnel, to be sure that they are only doing what they are authorized to do. There is not a hint that, when Congress was dealing with the Westfall Act -- I keep saying, "the Westfall Act" -- when Congress was dealing with the Gonzalez Act, there is not a hint that they were trying there to say, well, we want to save money or something by eliminating those kind of very, very traditional tort claims from those victims, and we don't want those people to have compensation. Alderson Reporting Company Official

Justice Ginsburg: Mr. Feldman, do I understand the mechanics of this right, that, if the injured person sued the United States directly, that suit would fail because the battery exclusion would apply, but it's only by suing the officer -- the doctor and then getting the United States substituted that the battery exception is abrogated; is that right?

James A. Feldman: No, I don't -- I don't believe that that's correct. There is nothing in this Act that says it should make any difference. There is nothing, certainly, in Subsection (e) or anywhere else in the Act that says it should make any difference, whether you are suing the government or suing the -- or suing the -- or suing the doctor. If you sue the government, the government says, well, we have a defense that the intentional tort exception applies. You would say, no, it says here, for purposes of this section, the intentional tort exception does not apply. And what that means, "for the purposes of this section," is for claims that are covered by this Act, which is claims that are medical tort claims brought against personnel of the affected agencies who are acting within the scope of their authority.

Justice Sotomayor: Are there any -- I'm sorry. Alderson Reporting Company Official Are there any other tort claims besides the lack of consent battery claim at issue here that could be encompassed by the Intentional Tort Act, as it relates to medical malpractice? Let's assume that it's not an operation, but sexual behavior with a patient in their hospital room, something of that nature. Is that covered under the Gonzalez Act, as a claim against the United States?

James A. Feldman: If it would be an assault or battery that was committed by -- within the scope of the professional's employment, then it would be. But it's always the question of whether it's within the scope of employment. And I think, usually, the -- the case law -- I mean, I think, usually, the cases are that a doctor who commits a sexual assault on a patient or something is not acting within -- in the kind of circumstances you are talking about, is not acting within the scope of employment. But that would be a case-by-case determination. There might be some kind of case where -- you know, it would depend on the facts of the case.

Justice Sotomayor: This exception you're -- Alderson Reporting Company Official you're talking about is regularly applied in the lower courts?

James A. Feldman: What -- I beg your pardon?

Justice Sotomayor: In the lower courts, this determination is regularly made?

James A. Feldman: The -- the scope of employment determination is made every day because that is made -- that is applicable throughout, in any kind of respondeat superior situation, whenever the employer of the medical professional is sued and that kind of thing -- or -- or nonmedical professional, for that matter. That --

Justice Scalia: Of course, when the government removes the case, it concedes that point, doesn't it, normally? Where a case is removed from State court, the government -- the Attorney General must certify that it was within the scope of employment, no?

James A. Feldman: That's correct. That's correct. And that is actually one of the two -- one of two of the key provisions of the Act, that kind of establish -- that could make it very clear that what Congress was trying to do was preserve remedies because, in that very provision, after it talks about removing when the Attorney General has certified that it's within the scope of employment, it says, "The case can be remanded if the removed case is one such that" there -- Alderson Reporting Company Official "that no remedy against the United States is available." And what that shows is that Congress knew that there would be actions that would continue to be brought against doctors. And they actually wanted to provide for that, right there, and say it should be -- those should be remanded to State court, and then they will proceed against the doctor in State court. Then there is -- so that there would be --

Justice Scalia: What was that case, where no action against the United States is available?

James A. Feldman: That would be a case, for example --

Justice Scalia: Not -- not by reason of the -- of the battery?

James A. Feldman: No, it wouldn't be -- if Congress didn't have this provision in the statute --

Justice Scalia: I understand.

James A. Feldman: -- it would have been by reason -- that would have been.

Justice Scalia: Yes, yes.

James A. Feldman: Another one would be a foreign tort, which is also another exception under the Tort Claims Act --

Justice Scalia: I see.

James A. Feldman: -- a discretionary function Alderson Reporting Company Official case, and there are some in the medical context.

Justice Scalia: I got you.

James A. Feldman: Or one of the other exceptions. All of those exception cases, they go on. They go on, and Congress -- Congress could have closed all of them down. And, in fact, if Congress was worried that there would be -- really, if their sole purpose here was to say, we don't want any actions to be brought against Federal employees, they should -- they could have just said, we don't want any actions to be brought against Federal employees. But, instead, they are providing for what happens and for the continuation of the action against the doctor.

Justice Alito: Now, the government has an alternative interpretation, and I know you think it's wrong. But would you go further and say that it's not a plausible interpretation?

James A. Feldman: I would. I think that because, as the court -- when the courts used -- you know, a number of different formulations to -- to talk about that -- I think you are referring to a kind of strict construction rule that -- that applies to waivers of sovereign immunity, which we don't think is applicable here. Alderson Reporting Company Official But, even where that rule does apply, really, the question is, is it a reasonable degree of clarity that Congress intended to waive immunity? Is it -- as the Court has said, is it clearly discernible from a fair reading of the statute that they intended to waive? And it has to be clear, and I think it is clear here. And that was what everybody at the time of the statute thought. It's what the government itself thought up through the time of the -- of the Smith case, 15 --

Justice Alito: But was the interpretation adopted by the district court and by the Ninth Circuit, but you still say is implausible.

James A. Feldman: I think so. I would add that -- I am not here to defend the Ninth Circuit's judgment, but I would add that they had a pro se litigant before them, and I don't think they had access to the full degree of presentation that they might have had, if -- if it had been more fully developed. But I do think that, when the Court is making that determination of what's clearly discernible from a fair reading of the statute, the Court has also made it clear, though, that what you don't do is take each word in the statute and say, we're going to take Alderson Reporting Company Official the most pro-government meaning of this word, and then you add them altogether. What you do is you look at the statute as a whole, you look at the context of the statute, you look at the structure of the statute, and then you say what is plausible, what is clearly discernible from a fair reading.

Justice Ginsburg: Mr. Feldman, when the Westfall Act, which doesn't abrogate the intentional tort provision, when that was passed, why -- was there any reason why Congress kept these five or six separate acts, like the Gonzalez Act, instead of saying, well, we did this piecemeal for particular agencies, and, now, we we’re dealing with Federal employees across the board, so there is no reason why we should have these five or six that go another way?

James A. Feldman: Well, I can give you the answer that the government gave in its brief in Smith, which is the Gonzalez Act and the other four or five statutes continue to serve two -- at least two vital functions, and one is specifically this: That they eliminate the -- the intentional tort exception and, therefore, allow relief for victims of intentional tort in this medical malpractice context, just like victims of other kinds of malpractice. Alderson Reporting Company Official The other thing is there are some cases, for instance, foreign torts, where there is another provision of the Gonzalez Act, 1089(f), that provides for indemnifying or holding harmless doctors, when judgments are against them in certain -- when there's a foreign tort, when the doctor has been detailed to a non-Federal agency, or if the circumstances are such as are likely to preclude a remedy under the Tort Claims Act. So, again, Congress in that -- that provision remains important because there could be a foreign judgment against the doctor or something, even after the Westfall Act, and that would -- that gives the authority to reimburse the doctor, if the agency determines that -- that that's appropriate. But that provision also shows that Congress intended that to preserve remedies here because it would have made no sense for Congress to say, we want to provide for the indemnification or reimbursement of the doctor, if what they really were trying to do was eliminate all the cases against doctors.

Justice Kagan: Mr. Feldman, is --

Justice Scalia: It -- it --

Chief Justice Roberts: Justice --

Justice Scalia: It's right on the same Alderson Reporting Company Official thing, so I -- that provision ends -- and I am strengthening you -- your last point -- that provision ends, "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." That clearly envisions that, in the ordinary case, those remedies against the United States would not be precluded.

James A. Feldman: That's right. And the -- and the choice that Congress had -- had here, really, was between taking intentional tort cases and allowing them to be continued to be brought against doctors and then subject to this kind of reimbursement provision, which they had provided for, or saying, no, we want these to just be brought against the government and to protect the Federal employees much more fully. And so that was the purpose of 1089(e). They said, we want to steer this into the same channel that all the other malpractice actions are going into.

Justice Kagan: Mr. Feldman, as I understand your argument and -- and the differences that you have with the government, you have one set of differences about the meaning of 1089(e), but then another set about this question of, if it were true that the government Alderson Reporting Company Official was immune from suit, could you bring a tort suit against the doctors? And the government said -- says no. And you say, yes, you might be able to do that. But do you have to answer that question, at all, in order to say that you're correct on 1089(e)?

James A. Feldman: No. I mean, that's -- that question isn't at issue in this case. That would really only be directly at issue if somebody brought a suit against the doctor. But --

Justice Kagan: So there is a lot of going back and forth about this question of what would happen if the government were immune, would the individual doctor be immune? But that is, essentially, irrelevant to the question before us; is that correct?

James A. Feldman: I -- I just wouldn't say it's irrelevant because what the -- the provisions that I have been talking about show is that Congress -- Congress was not trying, in this Act, unlike in the Westfall Act, which doesn't have either of these two provisions, the reimbursement and remand provision that I've talked about -- unlike in the Westfall Act, Congress wasn't trying to save money or other -- do something else by just eliminating remedies for victims. It was trying to -- as the Executive Branch Alderson Reporting Company Official said, as I said, to assure remedies for all tort victims and to protect doctors in a variety of different ways. And given that that's what they were trying to do in the Gonzalez Act, which is clear from the structure, that also helps clarify what 1080 -- or makes more clear what 1089(e) means.

Justice Kagan: Saying it a different way, I don't have to accept your broader argument; I can remain ambivalent about your broader argument and still accept your narrower argument.

James A. Feldman: Yes.

Justice Kagan: Is that correct?

James A. Feldman: Yes. That is correct. I would add that, with respect to the strict construction standard, I don't think it does apply in -- in this context. The Court has never applied it in the Federal Tort Claims Act context. In the Gonzalez Act, 1089(e), specifically, refers to the Federal Tort Claims Act. It says, "Section 2680(h) of Title 28." Each of the other provisions of the Gonzalez Act, for their operation, also depend on the Federal Tort Claims Act. The exclusive remedy provision talks about the Tort Claims Act. The reimbursement provision, the remand version, each of them -- the whole statute is really part of the Federal Tort Claims Act machinery. Alderson Reporting Company Official And, when Congress invoked that machinery here, I think it knew and I think it was consistent with this Court's precedents that the Court applied the same rule that it applied in the Dolan case, which is construing the words in accordance with their reason and normal tools of statutory construction, without a strict construction rule. Although, as I said, I do think that it is clear what the meaning of -- of the provision is, if they do -- you do apply the rule. Thank you.

Chief Justice Roberts: Thank you, Mr. Feldman. Mr. Shah? ORAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE RESPONDENTS

Pratik A. Shah: Mr. Chief Justice, and may it please the Court: Subsection (e) of the Gonzalez Act states, in pertinent part, that, "For purposes of this section," which refers to the Gonzales Act, "the FTCA's intentional tort exception shall not apply." The question in this case is whether those words unequivocally waive sovereign immunity for medical battery claims like Petitioner's. The answer is -- Alderson Reporting Company Official

Chief Justice Roberts: Well, the "unequivocally" -- we have a lot of cases that say you don't get -- you certainly get the benefit of the "unequivocally" standard, when you are talking about a waiver of sovereign immunity in the first instance, but you don't keep getting the benefit over and over again when you are talking about, as in this case, an exception to an exception to an exception.

Pratik A. Shah: Well, Your Honor, I think the -- the canon actually applies most strongly in this set of circumstances. And let me talk about Dolan and the line of cases which recognizes a very narrow exception to the normal presumption against waivers of sovereign immunity. Dolan and the -- and its predecessor cases recognize that the narrow exception to the canon, when construing the scope of exceptions that were enacted alongside the broad waiver of sovereign immunity in the FTCA itself. And the purpose of drawing that exception to the canon was it didn't want -- the Court didn't want to defeat Congress's purpose as manifest in the broad waiver itself. Those exceptions were cutting back on the contemporaneous waiver of sovereign immunity. The Court said, we don't want to cut back, given the uniquely Alderson Reporting Company Official broad waiver that the FTCA enacts. It's a narrow rule exception limited to those circumstances that hasn't been applied outside those circumstances. Unlike those cases, this case is not construing the scope of an exception that was enacted alongside the FTCA that was trying to cut back on the waiver of sovereign immunity. To put it more concretely, on the day before the Gonzalez Act was enacted, there was no question that sovereign immunity barred the type of claim at issue; that is, no one had any dispute that the FTCA's baseline of sovereign immunity applied and would have blocked this claim. The question is whether --

Chief Justice Roberts: Well, but that was because, at that point, there was an exception to the exception of sovereign immunity.

Pratik A. Shah: Correct.

Chief Justice Roberts: And you're going even a step further, to say you get the benefit of the unequivocal test that you've set forth at even the next stage.

Pratik A. Shah: Here's --

Chief Justice Roberts: No, you've already -- you've already used up your benefit of an unequivocal Alderson Reporting Company Official requirement when you've got the interpretation of the FTCA itself, which is the waiver of sovereign immunity.

Pratik A. Shah: Well, Your Honor, we haven't used it up because of the scope of interpreting Section 2680(h). You wouldn't apply the waiver because of the exception that was enacted in Dolan. That's Dolan itself. If we were just talking about construing the scope of Section 2680(h) itself, I would agree completely with you. What we have here is, some years later, we have a baseline of sovereign immunity. Everyone agrees that the FTCA and its exceptions have struck the appropriate balance.

Chief Justice Roberts: Wait a minute. You agree with me that you don't get the benefit of your higher standard of interpretation with respect to 2680(h)?

Pratik A. Shah: With respect to the terms of 2680(h) as enacted at that time. The difference --

Chief Justice Roberts: But then the -- then the heightened standard of use sort of resurrects again, when you get to considering an exception to 2680(h).

Pratik A. Shah: The reason, Your Honor, is that you have a baseline of sovereign immunity. What 26 -- in order for -- for the other side to prevail, Section Alderson Reporting Company Official 1089(e) has to waive sovereign immunity. It has to -- it has to enact a new waiver of sovereign immunity that, undisputedly, applied the day before the Gonzalez Act. That is when the canon should apply most strongly, when -- when the other side is saying that Congress --

Justice Sotomayor: What do you need more clear than "(h) doesn't apply"?

Pratik A. Shah: Well, Your Honor --

Justice Sotomayor: I mean, I don't know how much clearer Congress has to get than to say it's nullified.

Pratik A. Shah: Sure.

Justice Sotomayor: What more does it have to say; the exception doesn't apply, and then what's left?

Pratik A. Shah: Your Honor, if all it said is that the intentional tort exception does not apply, I would agree with you, that that would be enough. And that's exactly what Congress said in the 1988 --

Justice Scalia: But it didn't -- it didn't want to say it shall not apply for everything. It didn't want to eliminate the intentional tort exception for everybody, right? It only wanted to eliminate it for the people covered by -- by the Gonzalez Act. Alderson Reporting Company Official

Pratik A. Shah: That -- that may well be true, and Congress, when it enacted the 1988 VA Act, did it in the most direct way. It said, "The intentional tort exception shall not apply with respect to personnel employed by the VA." But it --

Justice Scalia: It might have said that, but, if it wanted to be more parsimonious in its language, it could simply say for purposes of this section.

Pratik A. Shah: Well --

Justice Scalia: Which section applies only to these particular individuals.

Pratik A. Shah: Justice Scalia, I think it might be helpful to take a step back. We have four statutes starting in 1965, then 1976. The Gonzalez Act was part of that chain. All four statutes in this relevant subsection, the analogue, the Subsection (e) here, said, "For purposes of this section, the intentional tort exception shall not apply." Then we get to 1988, the last one in the line, which is the VA amendment. It changes that language. It eliminates that opening proviso for purposes of this section. The legislative history accompanying it says, look, we want to allow intentional tort remedies for veterans. Alderson Reporting Company Official It does so -- the only reason I can conceive of that Congress would have done it is because it didn't think that the prior four model statutes did it clearly enough. And I think that is the reason. And -- and if we were in a normal statutory --

Justice Scalia: It was a -- it was a different Congress. They don't always use the same language. Come on.

Pratik A. Shah: Well, Your Honor, they used the identical language --

Justice Scalia: You're -- you're lucky they even remember the earlier statutes. (Laughter.)

Pratik A. Shah: Well, Your Honor, they use the identical language in every other provision of that statute. They made an affirmative decision to change the language of Subsection (e). Now, if this were an ordinary --

Justice Sotomayor: Now, what do you do with Justice Breyer's point -- or with your adversary's point? I know you'll tell us don't look at the Congressional Record because it suits you right now, because when it doesn't, you point to it extensively. But what do you do with the Veterans Act record that says, we are modeling ourselves after the Alderson Reporting Company Official Gonzalez Act, including its nullification of the intentional tort?

Pratik A. Shah: Well -- well, Your Honor, it said the first part. It did not say the second part. There is nothing in that legislative history that says it is -- it thought 1089(e) nullified the intentional tort exception. It says it's patterned after the Gonzalez Act, and then it changed the main language, the opening proviso of that provision. Now, if this were an ordinary case of statutory interpretation, this Court would have to figure out whether, by changing that language, did Congress just want to tinker with the language to clarify its intent? Did it intend to have a dispositive change by making that change in language? But this is not an ordinary case of statutory interpretation.

Justice Scalia: Well, listen, I -- you know, I don't -- I don't much care about legislative history, but -- but, if I did -- (Laughter.)

Justice Scalia: -- I wouldn't think that -- that you would say it is patterned after another Act, where you change a very basic provision, whether suit can be brought against the United States or not. Alderson Reporting Company Official

Pratik A. Shah: Well, Your Honor, it is patterned --

Justice Scalia: I mean, that's sort of rudimentary and fundamental to it. It doesn't seem to me they would say it's patterned after it. But -- you know, I -- I don't care. (Laughter.)

Pratik A. Shah: Well, Your Honor, it is patterned in the sense it does use the operative language. It takes out the key opening proviso, which is the entire dispute in this case. But legislative history, while it might be important if this were a normal statutory interpretation case, this Court has said, time and time again, you cannot look to the legislative history to supply an unequivocal waiver that is not present in the text itself.

Justice Kagan: Well, let's go back to the text then, Mr. Shah. As I understand your argument, it goes something like this: This provision is there to -- to prevent people from drawing a mistaken inference. And the inference would be that the doctors were liable because the government was not. Now, there are a thousand ways to do that pretty clearly. You could just say, irrespective of whether Alderson Reporting Company Official the government is liable, the doctors are not -- or some such thing.

Pratik A. Shah: Sure.

Justice Kagan: But, instead, what Congress did was it enacted a kind of "let's pretend" provision, right? Let's pretend that the government is liable, so then the inference won't arise. Now, that has to be not just not the best way of achieving Congress's objective; it has to be the worst, right, because, then, you're raising the inference that in fact the government is liable. Why would Congress have wanted to do that?

Pratik A. Shah: Well, Your Honor, I agree with you, Congress could have written this provision in a different way and more clear ways, but I think it's helpful --

Justice Kagan: I'm saying something more than that.

Pratik A. Shah: Sure.

Justice Kagan: It could not have written it in a worse way. (Laughter.)

Pratik A. Shah: Well, I would disagree with that. But let me -- let me take a step back here, on sort of the landscape in which Subsection (e) was enacted. Alderson Reporting Company Official Both sides agree that, without Subsection (e), covered medical personnel would have faced the risk of personal liability for medical battery claims. Both sides also agree that Subsection (e) was enacted to obviate that risk and, in fact, successfully does so under either side's construction. Everyone agrees on that. The dispute here is whether Congress accomplished that objective by, A, assuming the existence of an available tort remedy for purposes of the Gonzalez Act's conferral of immunity, as the text of the provision suggests; or, instead, whether it takes the substantial further step of actually amending the FTCA, which is a separate -- an entirely separate statute and, thereby, provide a remedy against the United States. The latter construction, I don't think is unmistakably correct, it's not unavoidable. And -- and, because of that, the unequivocal waiver requirement favors the government --

Justice Breyer: You're -- you're -- I'm picking up from -- I find Justice Scalia's hypothetical interpretations of legislative history very useful. So the -- the -- and I -- (Laughter.) Alderson Reporting Company Official

Justice Scalia: Thank you. Thank you, dear colleague. I appreciate that. (Laughter.)

Justice Breyer: The -- the thing where we are in this -- it' -- we have a -- we have a statute, 1089, basically, and it says you can sue the government for the tort of an employee -- I'm oversimplifying, I'm oversimplifying so. And we should interpret that narrowly, okay? We should interpret that -- absolutely has to be definite, and it is pretty definite. Now, what we have is an exception to that. And the exception is an exception for battery, but not battery. Can't sue the United States for battery. And we're supposed to interpret that, I guess, as broadly as possible. If you have a plausible argument that it could be broader, you get it, as long as it's plausible. Then what we have -- because, after all, after these two things, you can still sue the person who hit you over the head, you can go sue him in a State court, can't you? Now, oh, now, we bring a new Act there. And this new Act says, we are going to have a little exception to the exception. Right? And we are supposed to interpret that one, I guess, as narrowly as possible. You see -- so, now, what we are -- because Alderson Reporting Company Official that's an exception to something which should be interpreted as broadly as possible, which is an exception to something that should be interpreted as narrowly as possible. So I think I get it like Costello used to, I don't know what I'm talking about. (Laughter.)

Justice Breyer: Because there are a lot of words in these things. And -- and so given all these words and -- this is where the Chief Justice started -- I mean, can't we at least look at legislative history, to try to figure out what Congress was doing by the time we get to the exception to the exception to the exception?

Pratik A. Shah: No -- no, Your Honor. This Court has made quite clear you cannot look at the legislative history. And the fact that, if you find this confusing --

Justice Breyer: Yes.

Pratik A. Shah: -- Justice Breyer, if you find it's not --

Justice Breyer: Well, then you win, as long as I find it confusing. (Laughter.)

Pratik A. Shah: -- unequivocally clear, we win, Alderson Reporting Company Official and you don't look to the legislative history for clarity. That's the point of what --

Justice Breyer: Well, I don't find it all that confusing. What it says is that this battery exception, which is in (h), is not supposed to apply when we look at the military doctors. That's what it says.

Pratik A. Shah: Your Honor --

Justice Breyer: And if -- and you say, ah, but it says, "for purposes of this section." Okay. I look at "for purposes of this section," and the purposes of this section -- the very first whole sentence has to do with 1089. It has to do with the scope. It has to do with the general waiver.

Pratik A. Shah: Well, the "for purposes of this section" language, I think, is the key phrase, and this section refers to the Gonzalez Act. What the Gonzalez Act primarily does -- what Sections (a) through (c) are all about, are about conferring personal immunity. So I think --

Justice Scalia: I don't think those are the key words. I think the key words are "shall not apply." "Shall not apply."

Pratik A. Shah: Well, Your Honor --

Justice Scalia: It isn't shall be deemed Alderson Reporting Company Official inapplicable.

Pratik A. Shah: Your Honor, I think, when we are reading it --

Justice Scalia: It is not a hypothetical. It says, "They shall not apply to any cause of action," etc.

Pratik A. Shah: I think, when we are reading it against the canon -- the sovereign immunity canon, I think we would expect Congress to speak more clearly. And Congress gave us two examples of how it spoke more clearly in this very context. One is, in 1974, the sole -- the only time it amended Section 2680(h), it amended it within the -- the provision itself; that is, it amended the language of 2680(h) to add a law enforcement proviso that said, "This exception applies except with respect to law enforcement in certain circumstances." That's one way --

Justice Breyer: Okay. But why? Why would they have wanted to do that? That is to say, look, if you cut the exception to the exception to the exception, the presumption, da, da, da, out of it, what we've got on your interpretation is that a person who's hurt by a battery committed by a government official, given your interpretation, has no remedy at all. I mean, Alderson Reporting Company Official previously, he could have at least sued in State court.

Pratik A. Shah: Well --

Justice Breyer: Now, what you're saying is Congress tried to do with this language is say, hey, you can't sue in State court; and, by the way, when you try to sue the Federal government, we are not going to give you your suit, either. Why do that?

Pratik A. Shah: Well, Your Honor, I don't think -- I don't think that's true. I think before -- before the Gonzalez Act came along, there was a split in the circuits. That's why the Gonzalez Act came along. There were -- there were circuits that did not allow a claim to proceed personally against the physician. There were circuits that recognized absolute immunity against a personal suit, even while it was undisputed that battery claim could not proceed against the government. That -- and what -- what Congress said, if you want to look at legislative history, what the Senate Report says is, in light of this D.C. Circuit decision that went the other way, Congress enacted the Gonzalez Act because it was primarily concerned about conferring personal immunity. Every time the Senate Report talks about the purpose of the bill -- it's on page 1, heading, "Purpose Alderson Reporting Company Official of the Bill" -- it says conferring personal immunity, nothing about expanding the government's tort liability.

Justice Ginsburg: Mr. Shah, this is not always the government's position. In fact, in a brief to this Court, in the Smith case, the government took the position that Mr. Feldman is presenting to us. What occurred to turn on the light for the government, to see that it was wrong in the Smith case and come up with this -- the interpretation you are now advancing?

Pratik A. Shah: Sure, Justice Ginsburg. Well, the first thing I would say is that Section 1089(e) was not directly at issue in Smith, and the issue had really been litigated quite sparsely, both before and after Smith. Once this case presented itself, the government revisited its position. I think there were two --

Justice Kagan: But this is not a side issue, Mr. Shah. In fact, you used your understanding of 1089(e) as an argument to produce that the result this Court reached in Smith, so it was -- it was not a very large issue, but it was -- it was an argument. You said -- you know, we should reach the result that we -- that you wanted in Smith because Alderson Reporting Company Official 1089(e) would continue to have this effect.

Pratik A. Shah: Well, Your Honor, I don't agree with that characterization. The government's argument would have been identical, with or without 1089(e). But I don't want to quibble about --

Justice Kagan: It was a supportive argument. I am not saying that it was the but-for argument, but it was clearly a supportive argument in your brief.

Pratik A. Shah: Your Honor, if you want to read it that way, I think that's fine. I think --

Justice Scalia: Why -- why else was it there? Just for fun? (Laughter.)

Pratik A. Shah: No, I agree. It was in order to --

Justice Scalia: It was obviously there to support your position. Now, your position would have been the same. Now, that's true. Your position would have been identical, but the only purpose of that argument was to support that position.

Pratik A. Shah: Your Honor, I agree. It -- it supported that position --

Chief Justice Roberts: And that was successful. The Court relied on that argument several Alderson Reporting Company Official times in its opinion.

Pratik A. Shah: I don't believe so, Your Honor. I don't believe the Court --

Chief Justice Roberts: We certainly -- we certainly cited Smith.

Pratik A. Shah: Yes, but the Court did not interpret 1089(e). I think Smith -- what Smith hopefully said, Your Honor -- and this is one of the reasons why the government revisited its position -- what the Court said in the Smith decision -- you don't have to take my word of what the legislative history says. What the -- what the Court in Smith itself said is that the sole purpose of the Gonzalez Act -- not the primary purpose, not a purpose, not a chief purpose -- the sole purpose of the Gonzalez Act -- and it's talking about the Gonzalez Act as a whole -- was to confer personal immunity and not to create malpractice rights in favor of plaintiffs. What Justice Ginsburg --

Chief Justice Roberts: Your friend -- your friend says that, in Smith -- I'm sorry for the confusion -- the Court addressed your argument on the meaning of the Gonzalez Act several times.

Pratik A. Shah: Your Honor, it did not address Alderson Reporting Company Official 1089(e) at all, and -- and I think that's plain as day from -- from the opinion. What the Court said in Smith is that the purpose of the Gonzalez Act -- the sole purpose of the Gonzalez Act is to confer personal immunity. And what it also said is the Gonzalez Act does not create malpractice rights in favor of plaintiff. That was one of the things that the government looked at in reformulating its position and adopting its current position, was the decision in Smith, which came after our brief. The other thing we looked at --

Justice Kennedy: Well, you did -- you did say, in the reply brief, that the point of the Gonzalez Act, it says, "would enable plaintiffs to pursue those claims against the United States."

Pratik A. Shah: You are correct.

Justice Kennedy: I know you would have been disappointed if we didn't ask you about this.

Pratik A. Shah: Yes, you are correct. We said it. This is a change of position. We revisited it. There were a couple things we looked at in coming to our --

Justice Kennedy: And I -- but it -- and Justice Kagan indicated, this wasn't just an aside. Alderson Reporting Company Official This was rather a central theory for your interpretation of the Act; maybe not the only theory, but a central theory.

Pratik A. Shah: I -- again, I -- I disagree, fundamentally, with that characterization. It's two sentences in our brief. It's at the back end of the brief. It was not fundamental to the position in Smith. The Court did not rely on it at all in Smith. But, even if all that were true, I think the important thing is why we changed our position. The one is -- the first and foremost is the statements in the Court's decision in Smith itself, which, obviously, post-dated our brief --

Justice Scalia: I don't find that inconsistent with the position argued. There -- you are talking about the statement that the sole purpose was -- was to --

Pratik A. Shah: The two statements, the sole purpose of the Gonzalez Act is to confer immunity, not --

Justice Scalia: I don't think it is the sole purpose, even if you -- you accept your friend's interpretation.

Pratik A. Shah: But, no --

Justice Scalia: No, no. The sole purpose Alderson Reporting Company Official is to assure immunity to these doctors. Now, in assuring immunity to these doctors, we -- we are not going to leave these people without any remedy, and so we allowed them a remedy against the United States. That's subsidiary to the sole purpose of the Act. Sure, the sole purpose is to -- is to -- is to help these doctors. But, in order to do it and be fair at the same time, you have to allow suit against the United States. I think you could still say the sole purpose was to help the doctors.

Pratik A. Shah: Well, Your Honor, I would disagree with that. The other side's brief says, all along, the sole purpose of this Act was not just to confer personal immunity, but it had a dual purpose. The dual purpose was to confer personal immunity -- and this is, time and time again, in the other side's brief -- to -- to confer personal immunity and also to provide adequate remedies to tort plaintiffs. That was not, we submit, a purpose, let alone a primary purpose, of the Gonzalez Act.

Justice Ginsburg: Why would -- why would Congress -- I mean, the Veterans Administration Act came after the four or five others, and Congress thought it was patterning that Act after the Gonzalez Act. Why would Congress want to provide this Alderson Reporting Company Official battery remedy if a Veterans Administration medical person messed up, but not if it was an armed service doctor?

Pratik A. Shah: Of course, Congress doesn't say. I think there are two potential reasons, Justice Ginsburg. One might be the -- as -- as this Court has recognized, the special solicitude that Congress pays veterans, and it may have wanted to open up remedies to veterans that were unavailable to others. I think the second potential reason is the defense side reasons. The defendants in Veterans Act cases are civilian Veterans Administration employees. In a Gonzalez Act case, by and large, the defendants are going to be active military personnel. Congress is often hesitant to create -- expand judicial remedies against active military personnel because of the risk it poses to interfering with military function and order. So I think those are two reasons why Congress may have decided to -- to change course in the Veterans Act in 1988, after it had four provisions that said exactly the same thing, using the four purposes of this Act provision, it changed it, and it must have changed it for a reason. Two potential reasons are to change the result, which, of course, under which the government Alderson Reporting Company Official would win; or because it think -- it thought it needed to speak more clearly, in order to waive sovereign immunity. And, under the presumption against sovereign immunity waivers, the government would also prevail.

Justice Kagan: Mr. Shah, your basic theory of the case, which is that, in order to make absolutely certain that everyone gets the benefit of the intentional tort exception, both the government and individual doctors, in order to make that absolutely clear, Congress writes a provision saying that the intentional tort exception shall not apply. Now -- I mean, the -- the position, I have to say, seems to refute itself. If Congress wanted to make absolutely clear that the intentional tort exception would apply, it wouldn't have written a provision saying that it doesn't apply.

Pratik A. Shah: Well, the provision that you describe, Justice Kagan, is not this provision. It's the 1988 Veterans Act amendment, which says the intentional tort exception shall not apply. This provision says, "for purposes of this section," that is, for purposes of the Gonzalez Act's conferral of immunity in Subsection (a), that the -- the intentional tort exception shall not apply. Now, sometimes, when Congress uses the four Alderson Reporting Company Official purposes of this section's formulation, sometimes, it uses words like "assume that" or "consider that," as it -- as cited in the other side's brief, in footnote 4, on page 18. However, other times, when it uses "for purposes of this section," even though it intends somewhat of a counterfactual inquiry, it eliminates those words. In Title 10 itself, Section 10 USC 335 says, "for purposes of this section" -- the exact language is, "For purposes of this chapter, the term 'State' includes Guam and the Virgin Islands." Now, there's no dispute that Congress was not trying to add Guam and the Virgin Islands as the 51st and 52nd States of the Union. What it meant is, when applying the provisions of this section, treat Guam and Virgin Islands as if they are States. So --

Justice Breyer: Would you -- are you finished there?

Pratik A. Shah: Yes, sir.

Justice Breyer: Would -- would you go back for a minute and think, before this Act was passed -- the Gonzalez Act -- and think of the millions of government employees, and they're in different parts of the country, and some of them commit batteries. Now, you told me before that, where an Alderson Reporting Company Official injured person -- a plaintiff sues a government employee, and they sue under State tort law, and they say, this government employee committed a battery, okay, in the course of duty, you say there was an immunity there. Where did the immunity come from?

Pratik A. Shah: It was -- it was a common law absolute immunity.

Justice Breyer: From what?

Pratik A. Shah: One -- one case is the Martinez --

Justice Breyer: I mean, what was the theory of it? I mean, here it's just -- it's a person, he's at work, he does happen to work for the Federal government, instead of working for someone else --

Pratik A. Shah: Sure.

Justice Breyer: -- and everybody else, you have to respond, and you -- if liable, you'd have to pay damages for the battery. Now, where -- where did the immunity come from --

Pratik A. Shah: The theory was --

Justice Breyer: -- if the Federal employee did it?

Pratik A. Shah: The theory behind the individual immunity was the same -- essentially, the same theory Alderson Reporting Company Official behind the Westfall Act immunity that this Court rejected in the Westfall Act decision. So, up until Westfall, there was an argument that there was absolute immunity, that -- that the individual government employees had absolute immunity.

Justice Breyer: Why?

Pratik A. Shah: It was a common law immunity that -- it was an offshoot of the sovereign immunity, and it conferred it on the individual employee. This Court, of course, in Westfall, rejected that notion and said -- you know, that immunity doesn't apply, unless you are talking about both beings in the scope of employment and that apply -- that involve discretionary policy decisions at a high enough level. The last point I would make, Your Honor, is, even if you believed -- and I think you do -- that the texts were more naturally read to favor Petitioner, that is not enough. And I think you can look at this Court's decision in Nordic Village. The statutory provision in that case made certain Bankruptcy Court determinations binding on the government, "notwithstanding any assertion of sovereign immunity." The relevant language is reproduced on footnote 10, on page 41 of our brief. That language, "notwithstanding any Alderson Reporting Company Official assertion of sovereign immunity," sounds awfully like a waiver of sovereign immunity. It seems pretty explicit. But what this Court said, in applying the unequivocal waiver requirement, in finding that there was no waiver of sovereign immunity, despite that very explicit language, was that the statute, nonetheless, performed a significant function. Here, the same is true. Section 1089(e), though not authorizing monetary relief, still undisputedly performs a function here. It performs a function of securing the personal immunity conferred by Section 1089(a), that is, for purposes of the Gonzalez Act, the conferral of immunity under Section 1089(a). Just -- just as in Nordic Village, that is enough to construe the statute against a waiver of sovereign immunity.

Chief Justice Roberts: So you want us to decide the case with the unequivocal question before us, in other words, deciding whether that benefit to the government applies in this type of case.

Pratik A. Shah: Yes.

Chief Justice Roberts: It seems to me to be you are really upping the ante here, and it may well -- I have no idea why the government took the opposite position below, but that's -- that's putting a lot more Alderson Reporting Company Official at stake in this case than the particular statutory position.

Pratik A. Shah: Well, Your Honor, there are four courts that have decided -- conclusively spoken -- to my knowledge, four courts, in the history, that have interpreted this provision, Section 1089(e). All have come out in the government's favor. There were two district court decisions before the Smith case. Both came out in the government's favor. The only two decisions I am aware of are the two decisions in this case, conclusively interpreting 1089(e), the district court and the court of appeals. Both courts in this case relied on the unequivocal waiver requirement. And I think that that's -- it's not a stretch, at all, to apply the unequivocal waiver canon here. In fact, this case is far afield from Dolan. It would be a substantial expansion of the narrow exception in Dolan to say that the unequivocal waiver requirement didn't apply. There was no dispute that sovereign immunity applied the day before the Gonzalez Act was enacted. So the only question is whether the Gonzalez Act enacts a new waiver of sovereign immunity. That is the type of situation in which the canon applies most Alderson Reporting Company Official strongly. And Congress did it in a separate statute. Again, in Dolan, we were interpreting provisions that everyone agreed were part and parcel of the FTCA that -- that altered the balance of sovereign immunity. Here, the question is whether it even affects or amends the FTCA in the first place, whether it means to affect the sovereign immunity balance in the first place. That's an especially strong case in which we would want an unequivocal waiver requirement.

Justice Ginsburg: Mr. Shah, does it make any sense to distinguish between a medical malpractice, negligence and this unconsented operation, to split those two and say the government is liable for malpractice, but not for this unconsented action.

Pratik A. Shah: Your Honor, I think it makes a lot of sense, and here's why: When Congress enacted the intentional tort exception itself in 1946, one of the principal reasons it -- it did that was because intentional tort claims are sometimes easier to allege but more difficult to disprove. That is particularly true with respect to these sort of lack of consent claims, where you have a patient who has signed consent forms, agreed to a surgery, and says -- and the facts of this case, I Alderson Reporting Company Official think, are illustrative -- says right before the anesthesia kicked in, "I said I don't want the procedure anymore." Now, here, the government was successful in winning on summary judgment dismissal of the actual medical negligence claim, that the doctor's standard of care didn't -- that the doctor's care didn't meet the standard of care. The government won summary judgment on that because there -- there was no evidence -- no expert testimony that supported Petitioner's claim. But his claim that, "I said no right before the anesthesia kicked in," survived summary judgment. And I think it was correct to survive summary judgment, but the problem is that that survived summary judgment, even though the deposition testimony, as pointed out in the government's brief, everyone else in the operating room, including the doctor, said that this patient did not so object, just shows that these claims --

Justice Scalia: Mr. Shah, can I ask you why -- if your interpretation is correct, Subsection (e) did not read -- not for purposes of this section, but rather for purposes of Subsection (a), the provisions of 2680(h) shall not apply? Alderson Reporting Company Official

Pratik A. Shah: Well, Your -- may I -- may I respond, Your Honor? For -- this section -- Subsection (a), (b), and (c) all work in tandem. (D) is a settlement provision that really doesn't really have anything to do with this. So, when it says, "for purposes of this section," "Subsection (a)" and "this section" are essentially the only operative provisions of the Act. The only other provisions that do any work are (e) and (f), which come after, obviously, Subsection (e). So, when Congress used the term "for purposes of this section," I think the fair statement is it was referring to Subsections (a) through (c). Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Feldman, you have 4 minutes remaining. REBUTTAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER

James A. Feldman: I -- I just wanted to make a couple of quick points. One is the Court has not applied the clear statement -- the unequivocal statement standard at any time in the Tort Claims Act, not just when it's dealing with exceptions, but, if you go back to the very early cases, the Aetna case, the Yellow Cab case, really, right after the Act was passed, you can Alderson Reporting Company Official see that the Court is saying there, no, we want to interpret this Act to -- consistent with Congress's intent, the way it wanted it interpreted, which is with a fair reading of its words, not in one direction, not in the other. I just also wanted to clarify, in the Smith case because, of a possible misunderstanding, the Court definitely addressed the Gonzales Act, repeatedly, in its opinion in the Smith case, but it didn't -- the Court did not actually address 1089(e). The reason the government, though -- this was important to the government, and, actually, the government's reply brief in the Smith case was, I think, a hundred percent about the Gonzales Act -- was that the other side of the Gonzales Act was saying, if you construe the Westfall Act the way the government wants, that will be an implied repeal, but the Gonzales Act will have nothing left to do. And it was important for the government -- that's why they kept saying it. It was important for the government to say, no, the Gonzales Act does have things to do, this is not an implied repeal. And one of the things it does is exactly what we say Section 1089(e) does. If there are no further questions? Alderson Reporting Company Official

Chief Justice Roberts: Mr. Feldman, the Court invited you to brief and argue this case as an amicus curiae, and you have ably discharged that responsibility, for which the Court is grateful.

James A. Feldman: Thank you.

Chief Justice Roberts: The case is submitted. 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