Taking Targeted Immunity Statutes Seriously
For decades, the rules governing how and when parties allegedly injured by federal employees may obtain money damages have been generally consistent across the government. But two recent Supreme Court cases—including one from the Court’s most recent term—shed new light on relatively obscure agency-specific immunity statutes, indicating that sometimes the outcomes in tort litigation can still vary based on the occupation and agency affiliation of the involved government employee.
The 1946 Federal Tort Claims Act
(FTCA) waived sovereign immunity for most torts committed by federal employees acting within the scope of their employment. But the FTCA did not specifically immunize federal employees themselves from tort liability in the course of their duties. While judgment in an FTCA case constituted a bar
to further action against individual employees, federal personnel were otherwise subject to lawsuits in their individual capacity unless and until a judgment under the FTCA had been rendered.
Starting in the 1960s and 1970s, Congress set about shielding federal employees from this continued exposure to individual liability by enacting statutes designed to protect special categories of employees from specific federal agencies. For example, Congress conferred immunity from malpractice suits against medical professionals from several agencies. Separately, a provision of the 1987 National Defense Authorization Act shielded Department of Defense
(DOD) attorneys and paralegals from claims of legal malpractice. Such laws were modeled on the Federal Drivers Act
of 1961, which made the FTCA the exclusive remedy for injuries resulting from motor vehicles driven by federal employees pursuant to governmental business.
In 1988, Congress went further to protect individual employees from tort litigation by opting for a comprehensive approach that covered the entire federal government. In what has come to be known as the Westfall Act, Congress made liability under the FTCA against the United States the exclusive remedy
for torts committed by “any employee of the government while acting within the scope of his office or employment.” The impetus for Congress to adopt this government-wide immunity provision was the Supreme Court’s decision in Westfall v. Erwin
, in which the Court held that official immunity required a case-by-case analysis based on whether the allegedly tortious conduct was discretionary in nature. The Westfall Act shielded all federal employees from tort liability, with the exception of so-called Bivens
actions seeking damages for constitutional violations as well as other tort suits brought for breaking certain federal laws.
Unlike earlier statutes, the Westfall Act removed occupational classification and agency affiliation as predicates to personal immunity. Subsequent judicial interpretation of the Westfall Act confirmed that its grant of tort immunity to federal workers remains viable even when actual recovery against the United States under the FTCA is precluded. In other words, the immunity it gives federal employees is not dependent on the availability of an FTCA remedy.
But the Westfall Act did nothing to revoke the older, agency-tailored immunity statutes for specified occupations. The breadth of the Westfall Act’s coverage has raised the inevitable question of what, if any, purpose and effect these preexisting agency- and occupation-specific laws continue to serve. If recent Supreme Court decisions are any indication, the answer is quite a lot. Two unanimous rulings in the last several years illustrate that the targeted immunity statutes continue to mean what they say, irrespective of their apparent obsolescence in light of the Westfall Act’s more expansive language.
In its most recently-concluded term, the Supreme Court reviewed a DOD malpractice suit
brought by a veteran named Steven Levin who had undergone cataract surgery at a naval hospital. The trial court granted summary judgment for the government, but on appeal Levin challenged the court’s dismissal of a medical battery claim he had made against military doctors based on his alleged withdrawal of informed consent prior to surgery. The trial court had dismissed the battery claim based on the FTCA’s so-called “intentional tort exception,” which precludes
“any claim arising out of…battery” outside the law enforcement context. Levin countered that the DOD medical immunity statute from 1976—commonly referred to as the Gonzalez Act—specifically states
that the FTCA’s preclusion of intentional tort claims “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.”
The central issue in the case was whether the language of the Gonzalez Act waived an element of sovereign immunity granted by the FTCA—i.e., certain clinically-related intentional torts in the military healthcare context—or merely reinforced the immunity of military physicians from such claims. The Court accepted the former interpretation, holding that the latter would “inject ambiguity” into what the Gonzalez Act appears to state “in no uncertain terms.” Thus, despite the existence of the overarching immunity provided to employees through the Westfall Act, the specific terms of the Gonzalez Act abrogate the FTCA’s intentional tort exception for cases of medical battery in the Military Health System—thereby exposing the United States to suit.
Three years before the Supreme Court reached its decision in the Levin case, the Court examined
the role of the Public Health Service
(PHS) immunity statute
enacted in 1970. A detainee of U.S. Immigration and Customs Enforcement (ICE) had been treated by PHS employees
ultimately diagnosed with penile cancer, leading to amputation and eventually death. The government admitted liability for medical negligence under the FTCA, but the decedent’s estate also
sought to assert Bivens
claims against the individual PHS healthcare providers for “deliberate indifference” to serious medical needs in violation of the detainee’s constitutional rights.
The Westfall Act excludes
constitutional violations from its grant of immunity to federal employees. The preexisting PHS statute, however, does not. It bars
all civil actions and proceedings against PHS officers and employees arising out of their performance of medical functions within the scope of their employment, without providing any exception for constitutional or other federal violations.
The Court maintained
that its analysis “begins and ends with the text” of the PHS statute, which had been neither repealed nor amended by subsequent legislation. Although the Westfall Act extended tort immunity to all federal employees regardless of agency or occupation, it did not simultaneously narrow the scope of protections for previously immunized personnel.
Taken together, these two recent Supreme Court decisions provide a useful reminder that agency-specific immunity laws retain their vitality, despite the Westfall Act’s attempt to create a uniform statutory scheme for channeling tort actions exclusively through the mechanism provided by the FTCA. The Westfall Act does mean that federal employees of all agencies and occupations can carry on their work without fear of being sued for most torts committed within the scope of their employment. But litigants still need to be aware that in rare cases, the older agency-tailored statutes can nonetheless affect the extent of both government liability and individual immunity.