Steven Levin v. United States

Section 1089(e) of the Gonzalez Act does not waive the government’s sovereign immunity for common law battery claims.

Levin brought suit against the United States for negligent medical malpractice and battery after suffering complications following an eye surgery at the Ophthalmology Department of the U.S. Naval Hospital on Guam. The district court granted the United States’s motion to dismiss the battery claim for lack of subject-matter jurisdiction, on the grounds that the Federal Tort Claims Act (FTCA) expressly preserves sovereign immunity against battery claims. Levin appealed the dismissal, arguing that the district court has jurisdiction based on both the FTCA and the Gonzalez Act. According to Levin, § 1089(e) of the Gonzalez Act waives the FTCA’s preservation of sovereign immunity. Subsection (e) states: “For purposes of this section, the [FTCA’s preservation of immunity against battery claims] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance” of medical functions. While acknowledging the viability of Levin’s reading, the Ninth Circuit disagreed and found that the district court properly dismissed the battery claim for lack of subject-matter jurisdiction. In considering the provision’s plain language and legislative purpose, the Court read § 1089(e) “not as a waiver of sovereign immunity for battery claims brought against the United States, but as an expression of personal immunity from battery claims brought against military personnel.” The Court found this consistent with the Gonzalez Act’s primary purpose of “protect[ing] military medical personnel from malpractice liability.” Moreover, Levin’s reading of subsection (e) runs contrary to the well-established rule that waivers of sovereign immunity “must be unequivocally expressed,” as the Gonzalez Act makes no mention of such a waiver. AFFIRMED.