Court Notes Government’s Changed Position in Levin v. United States

March 4th, 2013

Today the Supreme Court decided Levin v. United States, holding that the Gonzalez Act abrogates the Federal Tort Claims Acts intentional tort exception, thus allowing Levin’s suit to proceed.

In the course of the opinion, Justice Ginsburg notes that the government has abandoned a previous position taken in the 1991 case of Smith v. United States.

The Government now disavows the reading of §1089(e) it advanced in Smith. See Brief for United States 24, n. 8.

This is yet another case where the Solicitor General has abandoned the positions taken by previous administrations, often without any explanation, save for a difference in policy. Chief Justice Roberts has taken note of this practice, noting in a case this term “We are seeing a lot of that lately.” There are strong reliance interests in the positions taken by the federal government. When the government changes their positions following an election, or even worse, in the course of litigation, parties cannot know what is expected of them. That leads to uncertainty and confusion in the law.

The Court-appointed amicus points out the government’s previous position:

2. The government has previously expressed precisely that understanding of the meaning of the Gonzalez Act. In its brief in Smith, the government explained that:

in providing that the FTCA exception for intentional torts does not apply to medical malpractice claims, the [Gonzalez] Act has the effect of permitting FTCA actions against the United States based upon allegations that a doctor has performed medical procedures to which the plaintiff did not consent. 10 U.S.C. 1089(e). *16 Smith, U.S. Br. at 32-33.

In its briefing in Smith, the government repeated that explanation twice more with respect to Section 1089(e) and an additional time in discussing a similar statute addressing VA medical personnel.3 That is petitioner’s position in this case.

However, in a footnote, Solicitor General Verrilli departed  with the government’s earlier position.

Amicus notes (at 15-16) that the government’s brief in Smith expressed the view that Section 1089(e) provides an FTCA remedy against the United States for medical malpractice claims sounding in intentional tort. The government does not adhere to the statements in that brief. The meaning of Section 1089(e) was not at issue in Smith, and the Court’s statement in Smith that the Gonzalez Act “does not create rights in favor of malpractice plaintiffs” (499 U.S. at 172) calls into question the correctness of the statements in the government’s brief in that case. Perhaps most notably, the government’s brief in Smith did not mention the strict construction rule for waivers of sovereign immunity. Application of that rule to Section 1089(e) favors the interpretation pressed by the government in this litigation and accepted by both courts below.

In its reply brief, Amicus hammers home the fact that the government has changed its position:

Both at the time the Gonzalez Act was enacted and at least through United States v. Smith, 499 U.S. 160 (1991), everyone, including the government, read Section 1089(e) to eliminate the intentional tort exception for the specified malpractice claims. When every reader comes away with the same understanding of a provision, it is powerful evidence that the shared understanding is the provision’s natural meaning.

The Executive Branch told Congress at the time it was considering the Gonzalez Act that, as a result of Section 1089(e), “[t]he exception in section 2680(h) of title 28 [the intentional tort exception] … would not bar a claim otherwise covered by the new [Gonzalez Act],” and that it would therefore “assure an adequate remedy in all cases against the United States for injury caused” by medical personnel of the *5 specified agencies. S. Rep. No. 94-1264, at 13 (1976). . . . The Executive Branch remained consistent for many years. In 1990, in its briefing to this Court in Smith, the Executive Branch three times explained that “the provision of the Gonzalez Act waiving sovereign immunity as to medical malpractice claims sounding in intentional tort, 10 U.S.C. 1089(e), will enable plaintiffs to pursue those claims against the United States.” 89-1646 U.S. Reply Br. at 12; see Amicus Br. 15-16 & n.3.

The government offers very little in response.

Amicus is also not persuaded by the government’s representation to the Court:

As for its representations to this Court in Smith, the government asserts that “[t]he meaning of Section 1089(e) was not at issue in Smith.” U.S. Br. 24 *7 n.8. But the meaning of the Gonzalez Act was sufficiently at issue in Smith for the Court to address it several times, see 499 U.S. at 169-75, and the government’s repeated explanations of Section 1089(e) in its opening and reply briefs in Smith demonstrate that the government viewed that provision in particular as significant. See Amicus Br. 15-16 & n.3. Because of the importance of the Gonzalez Act in Smith, the government had every incentive to read it carefully. And, significantly, the government had the same incentives it has today to avoid liability. Its representation in Smith that Section 1089(e) would allow claims to be brought under the FTCA is therefore especially telling.

I have chronicled the Supreme Court’s disatisfaction with this practice. For example, in Kiobel:

During oral argument in Kiobel II, Justice Scalia asked the Solicitor General, “Why should — why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not only in several courts of appeals, but even up here.”

General Verrilli answered, not too persuasively, “It’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law.”

Chief Justice Roberts was none too pleased with that response, and chimed in, “Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”

And in US Airways, Inc. v. McCutchen  (11-1285), Chief Justice Roberts continued that theme when he seized upon a Deputy SG in a relatively mundane ERISA case, where the current Secretary of Labor departed from a position by President Bush’s Secretary of Labor.

CHIEF JUSTICE ROBERTS: Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view — that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?

MR. PALMORE: We do have a new secretary under a new administration. But that -­

The Chief was not pleased, noting that “we are seeing a lot of that lately.”

CHIEF JUSTICE ROBERTS: It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change. We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.

The Chief continued, and called the SG’s position “a little disingenous.”

MR. PALMORE: With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly ten years ago in the Court’s review. CHIEF JUSTICE ROBERTS: Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.

A few weeks ago, the Court granted cert in  Sandifer v. United States Steel Corp, which raises this exact issue, as noted by Judge Posner’s opinion.

The Department of Labor has participated as an amicus curiae in this appeal on the side of the plaintiffs, and we end by considering what weight we should give its views.   During the Clinton Administration the Department took a narrow view of the meaning of the term “clothes” for purposes of determining whether time spent in changing in and out of work clothes could be excluded under section 203(o ) from the FLSA’s minimum wage and overtime provisions.   See U.S. Dep’t of Labor, Opinion Letter, 2001 WL 58864 (Jan. 15, 2001);  Opinion Letter, 1997 WL 998048 (Dec. 3, 1997).   During the Bush Administration the Department took a broad view—broader than we take—of what “clothes” means in the FLSA, and added that clothes-changing time excluded under section 203(o ) could not be a “principal activity” under the Portal–to–Portal Act. U.S. Dep’t of Labor, Opinion Letter, 2007 WL 2066454 (May 14, 2007);  Opinion Letter, 2002 WL 33941766 (June 6, 2002).   After the change in administrations in 2009 the Department reverted to the Clinton Administration’s position on “changing clothes” and also rejected the Bush Administration’s position on “principal activity.”  U.S. Dep’t of Labor, Administrator’s Interpretation No. 2010–2, 2010 WL 2468195 (June 16, 2010).   Such oscillation is a normal phenomenon of American politics.   Democrats are friendlier to unions than Republicans are, though we cannot see how a decision in favor of the plaintiffs in this case would help unions.  (No union is a party to this case or an amicus curiae.)

Naturally the Department of Labor does not acknowledge that its motive in switching sides was political;  that would be a crass admission in a brief or in oral argument, and unlikely to carry weight with the judges.   The Department says instead that it is right as a matter of law and that the position the Department took in the Bush years is wrong;  it adds that since it enforces the Fair Labor Standards Act its (current) position should carry weight with us.   But all the Department does to demonstrate the “rightness” of its current position is to echo the plaintiffs’ arguments.   Nowhere in the Department’s brief is there a reference to any institutional knowledge of labor markets possessed by the Department’s staff—or to anything indeed to which the parties might not have complete access—that might help the court to decide the case sensibly;  and at the oral argument the Department’s lawyer acknowledged this void.   All that the Department has contributed to our deliberations, therefore, though it is not quite nothing, is letting us know that it disagrees with the position taken by the Bush Department of Labor;  for if it were silent, from which one might infer that it agreed with that position, it would be inviting U.S. Steel to argue that the Department of Labor had been consistent, at least since 2001, and thus across Administrations controlled by opposite political parties, in rejecting the plaintiffs’ position.

It would be a considerable paradox if before 2001 the plaintiffs would win because the President was a Democrat, between 2001 and 2009 the defendant would win because the President was a Republican, and in 2012 the plaintiffs would win because the President is again a Democrat.   That would make a travesty of the principle of deference to interpretations of statutes by the agencies responsible for enforcing them, INS v. Cardoza–Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), since that principle is based on a belief either that agencies have useful knowledge that can aid a court or that they are delegates of Congress charged with interpreting and applying their organic statutes consistently with legislative purpose.   We are not surprised to discover that courts of appeals that have reached varied conclusions on the issues presented by this appeal have come together in spurning, as Judge Wilkinson has put it, “the gyrating agency letters on the subject.”  Sepulveda v. Allen Family Foods, Inc., supra, 591 F.3d at 216 n. 3;  see also Salazar v. Butterball, LLC, supra, 644 F.3d at 1139;  Franklin v. Kellogg Co., supra, 619 F.3d at 612–14;  Alvarez v. IBP, Inc., supra, 339 F.3d at 905 n. 9;  contra, Anderson v. Cagle’s, Inc., supra, 488 F.3d at 956–57.

I fully expect this issue to be teed up again with the Sandifer case.