# United States v. Smith (499 U.S. 160)

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Dissenting Opinion

    Stevens
United States Supreme Court
499 U.S. 160
United States v. Smith
No. 89-1646 Argued: Nov. 7, 1990. --- Decided: March 20, 1991
Syllabus
Respondents Smith filed suit in the District Court against one Dr. Marshall, alleging that he had negligently injured respondent Dominique Smith during his birth at a United States Army hospital in Italy. The court granted the Government's motion to substitute itself for Marshall pursuant to the Gonzalez Act, which provides that in a suit against military medical personnel for employment-related torts, the Government is to be substituted as the defendant and the suit is to proceed under the Federal Tort Claims Act (FTCA). The court then dismissed the suit on the ground that the FTCA excludes recovery for injuries sustained abroad. The Court of Appeals reversed, holding that neither the Gonzalez Act nor the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Act) required substitution of the Government or otherwise immunized Marshall. It ruled that § 5 of the Act-which, with two exceptions not here relevant, confers absolute immunity on Government employees by making an FTCA action against the Government the exclusive remedy for their employment-related torts-applies only when the FTCA provides a remedy.
Held: The Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government. Pp. 165-175.
(a) The Act's language confirms that § 5 makes the FTCA the exclusive mode of recovery. Congress recognized that requiring substitution of the Government would sometimes foreclose a tort plaintiff's recovery altogether when it provided in § 6 of the Act that suits proceeding under the FTCA are subject to the "limitations and exceptions" applicable to FTCA actions. Moreover, in light of § 5's two express exceptions preserving employee liability, a third exception preserving liability when the FTCA bars suit cannot be implied, absent a contrary legislative intent. Furthermore, the enactment of § 9 of the Act which provides for the substitution of the Tennessee Valley Authority as defendant in employment-related tort suits against its employees-supports no inference on the scope of § 5 immunity when the FTCA precludes suit against the United States. Pp. 165-169.
(b) Respondents' several arguments to support the decision below are rejected. Construing the Act to preclude Marshall's tort liability does not result in an implied repeal of the Gonzalez Act. The Gonzalez Act functions solely to protect military medical personnel from malpractice liability and does not create rights in favor of malpractice plaintiffs, whose rights arise instead under state or foreign law. Since respondents' rights as malpractice plaintiffs were not created by Congress, the rule disfavoring implied repeals is not implicated when Congress limits those rights. Similarly, respondents' suggestion that the Act was meant to apply solely to those Government employees not already protected from tort liability by a pre-existing federal immunity statute is inconsistent with the Act's purpose. The Act's plain language makes no distinction between employees who are covered under pre-Act immunity statutes and those who are not. Congress clearly was aware of the pre-Act immunity statutes. Congress' enactment of the two express limitations of immunity under § 5 of the Act indicates that if it intended to limit the Act's protection to employees not covered under the pre-Act immunity statutes, it would have said this expressly. Finally, since nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians, respondents' malpractice claim does not involve a violation of the Gonzalez Act. Thus, it does not fall within the Act's exception for suits brought for a violation of a United States statute under which action against an employee is otherwise authorized. Pp. 169-175.
885 F.2d 650 (CA9 1989), reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. ----.
David L. Shapiro, Washington, D.C., for petitioners.
Walter A. Oleniewski, Rockville, Md., for respondents.
Justice MARSHALL delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse