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Subject: 89-1646 -- OPINION, UNITED STATES v. SMITH




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1646



UNITED STATES, et al., PETITIONERS v. MARCUS S. SMITH et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[March 20, 1991]



    Justice Marshall delivered the opinion of the Court.
    The Federal Employees Liability Reform and Tort Compensation Act of
1988 (Liability Reform Act or Act) limits the relief available to persons
injured by Government employees acting within the scope of their
employment.  For persons so injured, the Act provides that "[t]he remedy
against the United States" under the Federal Tort Claims Act (FTCA) "is
exclusive of any other civil action or proceeding for money damages."  28
U. S. C. MDRV 2679(b)(1).  Subject to certain exceptions, the FTCA permits
a person injured by a Government employee acting within the scope of his or
her employment to seek tort damages against the Government.  One exception
bars such recovery for injuries sustained outside the country.  See 28 U.
S. C. MDRV 2680(k).  This case presents the question whether a person
injured abroad by a military physician, and whom the FTCA foreign-country
exception therefore precludes from suing the Government, may nonetheless
seek damages from the particular Government employee who caused the injury.
We hold that the Liability Reform Act bars this alternative mode of
recovery.

I
    In 1982, while working on the medical staff of the United States Army
hospital in Vicenza, Italy, Dr. William Marshall served as attending
physician to Hildegard Smith during the delivery of her son Dominique.  At
this time, Ms. Smith's husband, Marcus Smith, was an Army Sergeant
stationed in Italy.  According to the Smiths, Dominique was born with
massive brain damage.  In 1987, the Smiths, who are respondents in this
Court, sued Dr. Marshall in the United States District Court for the
Central District of California, basing jurisdiction on diversity of
citizenship.  The Smiths alleged that Dr. Marshall's negligence during the
delivery caused Dominique's injuries. {1}
    The Government intervened and sought to have itself substituted for Dr.
Marshall as the defendant pursuant to the Gonzalez Act, 10 U. S. C. MDRV
1089.  The Gonzalez Act provides that in suits against military medical
personnel for torts committed within the scope of their employment, the
Government is to be substituted as the defendant and the suit is to proceed
against the Government under the FTCA.  See 15 1089(a), (b).  The
Government also argued that, because the action arose overseas, the FTCA
exception excluding recovery for injuries sustained abroad, 28 U. S. C.
MDRV 2680(k), precluded Government liability.  Consequently, the Government
concluded, the action should be dismissed.  The District Court granted the
Government's motion for substitution and dismissed the action.  See App. to
Pet. for Cert. 17a-18a. {2}
    In 1988, while respondents' appeal was pending, Congress enacted the
Liability Reform Act as an amendment to the FTCA.  Congress took this
action in response to our ruling in Westfall v. Erwin, 484 U. S. 292
(1988), which held that the judicially created doctrine of official
immunity does not provide absolute immunity to Government employees for
torts committed in the scope of their employment.  In West fall, we ruled
that such official immunity would have to be determined on a case-by-case
basis, according to whether "the contribution to effective government in
particular contexts" from granting immunity "outweighs the potential harm
to individual citizens."  484 U. S., at 299.  The Liability Reform Act
establishes the absolute immunity for Government employees that the Court
declined to recognize under the common law in Westfall.  The Act confers
such immunity by making an FTCA action against the Government the exclusive
remedy for torts committed by Government employees in the scope of their
employment. {3}
    On appeal in the present case, the Government relied on this new
statute to support the District Court's dismissal of respondents' action.
{4}  The Government argued that the Liability Reform Act essentially had
the same effect as that which the District Court had found to result from
the Gonzalez Act.  Because Dr. Marshall's alleged malpractice occurred in
the scope of his employment, the Government argued, respondents' action
should proceed against it as an FTCA action. {5}  The Government further
contended that, because of the FTCA exception under MDRV 2680(k) barring
recovery for injuries occurring overseas, the District Court's ruling
dismissing the suit should be affirmed.
    The Ninth Circuit reversed, holding that neither the Gonzalez Act nor
the Liability Reform Act required substitution of the Government as the
defendant in this suit or otherwise immunized Dr. Marshall from liability.
See 885 F. 2d 650 (1989). {6}  With respect to the Liability Reform Act,
the Ninth Circuit reasoned that although the Act renders a suit against the
Government under the FTCA the exclusive remedy for employment-related torts
committed by Government employees, the Act applies only when the FTCA in
fact provides a remedy.  Because MDRV 2680(k) of the FTCA precludes any
remedy against the Government in cases arising from injuries incurred
abroad, the Ninth Circuit concluded that respondents' tort claim against
Dr. Marshall was not barred by the Liability Reform Act.  Id., at 654-655.
    We granted certiorari, 496 U. S. --- (1990), to resolve a conflict
among the Circuits over whether the Liability Reform Act immunizes
Government employees from suit even when an FTCA exception precludes
recovery against the Government. {7}  We conclude the Act does confer such
immunity and therefore reverse.

II
    Section 5 of the Liability Reform Act states that "[t]he remedy"
against the Government under the FTCA "is exclusive of any other civil
action or proceeding for money damages . . . against the employee" and then
reemphasizes that "[a]ny other civil action or proceeding for money damages
. . . against the employee . . . is precluded."  28 U. S. C. MDRV
2679(b)(1).  The central question in this case is whether, by designating
the FTCA as the "exclusive remedy," MDRV 5 precludes an alternative mode of
recovery against a Government employee in cases where the FTCA itself does
not provide a means of recovery.
    Two provisions in the Liability Reform Act confirm that MDRV 5 makes
the FTCA the exclusive mode of recovery for the tort of a Government
employee even when the FTCA itself precludes Government liability.  The
first is MDRV 6 of the Act.  As noted, see n. 5, supra, MDRV 6 directs the
Attorney General in appropriate tort cases to certify that a Government
employee named as defendant was acting within the scope of his employment
when he committed the alleged tort.  Section 6 also provides that the suit
"shall proceed in the same manner as any action against the United States
filed pursuant to [the FTCA] and shall be subject to the limitations and
exceptions applicable to those actions."  28 U. S. C. MDRV 2679(d)(4)
(emphasis added).  One of these "exceptions" -- expressly designated as
such under MDRV 2680 -- is the provision barring Government liability for
torts "arising in a foreign country."  MDRV 2680(k).  The "limitations and
exceptions" language in MDRV 6 of the Liability Reform Act persuades us
that Congress recognized that the required substitution of the United
States as the defendant in tort suits filed against Government employees
would sometimes foreclose a tort plaintiff's recovery altogether.
    The second basis of our interpretation arises from the express
preservations of employee liability in MDRV 5.  Section 5 declares that the
FTCA is not the exclusive remedy for torts committed by Government
employees in the scope of their employment when an injured plaintiff
brings: (1) a Bivens action, {8} seeking damages for a constitutional
violation by a Government employee; or (2) an action under a federal
statute that authorizes recovery against a Government employee.  See MDRV
2679(b)(2).  Congress' express creation of these two exceptions convinces
us that the Ninth Circuit erred in inferring a third exception that would
preserve tort liability for Government employees when a suit is barred
under the FTCA.  "Where Congress explicitly enumerates certain exceptions
to a general prohibition, additional exceptions are not to be implied, in
the absence of evidence of a contrary legislative intent."  Andrus v.
Glover Construction Co., 446 U. S. 608, 616-617 (1980). {9}
    The Ninth Circuit based its contrary construction of the Liability
Reform Act on one of the Act's specialized provisions.  Section 9 of the
Act provides that the Tennessee Valley Authority (TVA) shall be substituted
as defendant in any suit against a TVA employee arising from "act[ions]
within the scope of his office or employment," 16 U. S. C. MDRV
831c-2(b)(1), and that an action against the TVA is "ex[c]lusive of any
other civil action or proceeding," 16 U. S. C. MDRV 831c-2(a)(1).  Under
the TVA exception to the FTCA, 28 U. S. C. MDRV 2680(l), the Government may
not be held liable for any claim arising from the TVA's activities.  The
Ninth Circuit inferred from the enactment of MDRV 9 that Congress must have
expected that MDRV 5 would not shield TVA employees from liability where
suit against the United States was precluded by MDRV 2680(l).  See 885 F.
2d, at 655.  And because only TVA employees were singled out for a special
grant of immunity, the court concluded that all other Government employees
must remain subject to liability where the FTCA precludes suit against the
United States.  See ibid.
    The Ninth Circuit's analysis rests on a misunderstanding of the purpose
and effect of MDRV 9.  By its terms, MDRV 9 does not invest TVA employees
with more immunity than MDRV 5 affords other Government employees.  Rather,
MDRV 9 provides merely that a suit against the TVA, 16 U. S. C. MDRV
831c-2(a)(1), rather than one against the United States, 28 U. S. C. MDRV
2679(b)(1), shall be the exclusive remedy for the employment-related torts
of TVA employees.  This adjustment of the Liability Reform Act's immunity
scheme is perfectly sensible, for although the United States may not be
held liable for the TVA's activities, the TVA itself "[m]ay sue and be sued
in its corporate name."  16 U. S. C. MDRV 831c(b).  Courts have read this
"sue or be sued" clause as making the TVA liable to suit in tort, subject
to certain exceptions.  See, e. g., Peoples Nat. Bank of Huntsville, Ala.
v. Meredith, 812 F. 2d. 682, 684-685 (CA11 1987); Queen v. Tennessee Valley
Authority, 689 F. 2d 80, 85 (CA6 1982), cert. denied, 460 U. S. 1082
(1983).  In our view, the most plausible explanation for MDRV 9 is that, in
view of lower court cases establishing the TVA's own tort liability
independent of the FTCA, Congress decided to clarify that the TVA should be
substituted in suits brought against TVA employees.
    Seen in this light, the enactment of MDRV 9 supports no inference
either way on the scope of MDRV 5 immunity when suit against the United
States is precluded under the FTCA.  Both the plain language and
legislative history of MDRV 9 indicate that the provision was intended to
give TVA employees the same degree of immunity as MDRV 5 gives other
Government employees.  Compare 28 U. S. C. MDRV 2679(b)(1), with 16 U. S.
C. MDRV 831c-2(a)(1).  See also 134 Cong. Rec. S16375 (Oct. 14, 1988)
(remarks of Sen. Heflin).  But because the scope of immunity conferred to
employees is the same, MDRV 9 has no bearing upon whether Congress viewed
MDRV 5 as protecting Government employees from liability when suit against
the United States is precluded under the FTCA. {10}

III


A
    In support of the decision below, respondents advance reasoning not
relied upon by the Ninth Circuit.  They invoke the well-established
principle of statutory interpretation that implied repeals should be
avoided.  See, e. g., Randall v. Loftsgaarden, 478 U. S. 647, 661 (1986) ("
`repeals by implication are not favored' " (citations omitted)).
Respondents contend that the Government's construction of the Liability
Reform Act precluding tort liability for Dr. Marshall results in an implied
repeal of the Gonzalez Act, 10 U. S. C. MDRV 1089, which regulates suits
against military medical personnel.  We disagree.
    The Gonzalez Act is one of a series of immunity statutes enacted prior
to the Liability Reform Act that were designed to protect certain classes
of Government employees from the threat of personal liability. {11}  For
torts committed by military medical personnel within the scope of their
employment, the Gonzalez Act provides that a suit against the Government
under the FTCA is the exclusive remedy.  10 U. S. C. MDRV 1089(a). {12}
    Two Courts of Appeals, including the Ninth Circuit in the decision
below, have held that the Gonzalez Act's grant of absolute immunity from
suit protects only military medical personnel who commit torts within the
United States and not those committing torts abroad.  See 885 F. 2d, at
652-654; Newman v. Soballe, 871 F. 2d 969 (CA11 1989).  In reaching this
conclusion, these courts relied largely on MDRV 1089(f) of Title 10, which
permits agency heads to indemnify or insure foreign-based military medical
personnel against liability for torts committed abroad while in the scope
of their employment. {13}  The Ninth and Eleventh Circuits construe MDRV
1089(f) to limit the protection available to foreign-based military medical
personnel to indemnification or insurance, instead of the immunity that is
otherwise available to them when stationed within the United States. {14}
Under this interpretation, the Gonzalez Act would not preclude respondents
from suing Dr. Marshall directly in a United States court.  Respondents
contend that extending the Liability Reform Act to foreign-based military
medical personnel therefore would effect an implied repeal of their
"Gonzalez Act remedy."  See Brief for Respondents 8, 33, 46.
    We reject the last step in respondent's argument.  For purposes of this
case, we need not question the lower court's determination that the
Gonzalez Act would not immunize Dr. Marshall from a malpractice action
brought under state or foreign law.  Even if the lower court properly
interpreted the Gonzalez Act, it does not follow, however, that application
of the Liability Reform Act to an action founded on state or foreign law
effects a "repeal" of the Gonzalez Act.  The Gonzalez Act functions solely
to protect military medical personnel from malpractice liability; it does
not create rights in favor of malpractice plaintiffs.  What respondents
describe as their "Gonzalez Act remedy" is in fact a state- or foreignlaw
remedy that would not be foreclosed by Gonzalez Act immunity.
Consequently, the rule disfavoring implied repeals simply is not implicated
by the facts of this case, because the Liability Reform Act does not repeal
anything enacted by the Gonzalez Act.  The Liability Reform Act adds to
what Congress created in the Gonzalez Act, namely protection from liability
for military doctors.  Respondents' rights, on the other hand, arise solely
out of state or foreign law.  Because Congress did not create respondents'
rights, no implied repeal problem arises when Congress limits those rights.
{15}

B
    Respondents next raise a second and slightly different argument
involving the Gonzalez Act.  They contend that the Liability Reform Act was
meant to apply solely to those Government employees not already protected
from tort liability in some fashion by a pre-existing federal immunity
statute.  Under respondents' construction of the Act, military medical
personnel and other Government employees who were already protected by
other statutes, see n. 11, supra, cannot now benefit from the more generous
immunity available under the Liability Reform Act.  In our view, such a
construction is inconsistent with Congress' purpose in enacting the
Liability Reform Act.
    The Liability Reform Act's plain language makes no distinction between
employees who are covered under pre-Act immunity statutes and those who are
not.  Section 5 states that, with respect to a tort committed by "any
employee of the Government" within the scope of employment, the FTCA
provides the exclusive remedy.  See 28 U. S. C. MDRV 2679(b)(1) (emphasis
added).  No language in MDRV 5 or elsewhere in the statute purports to
restrict the phrases "any employee of the Government," as respondents urge,
to reach only employees not protected from liability by another statute.
When Congress wanted to limit the scope of immunity available under the
Liability Reform Act, it did so expressly, as it did in preserving employee
liability for Bivens actions and for actions brought under a federal
statute authorizing recovery against the individual employee.  MDRV
2679(b)(2); see also supra, at 6.  In drafting the Liability Reform Act,
Congress clearly was aware of the pre-Act immunity statutes.  See H. R.
Rep. 100-700, p. 4 (1988) (citing these statutes, including the Gonzalez
Act).  We must conclude that if Congress had intended to limit the
protection under the Act to employees not covered under the pre-Act
statutes, it would have said as much. {16}

C
    Finally, respondents argue that their claim falls within one of the two
express exceptions under the Liability Reform Act -- the exception
permitting suits "brought for a violation of a statute of the United States
under which such action against an individual [employee] is otherwise
authorized."  MDRV 2679(b)(2)(B).  Respondents assert that they have
satisfied both conditions set forth in this exception.  They contend that
(1) their claim against Dr. Marshall is "authorized" by the Gonzalez Act
and that (2) because the Gonzalez Act permits suits against military
doctors for negligence in certain instances, such claims of negligence
constitute claims of a Gonzalez Act "violation."  We need not decide
whether a tort claim brought under state or foreign law could be deemed
authorized by the Gonzalez Act, for we find that respondents' second
argument -- that a claim for malpractice involves "a violation of" the
Gonzalez Act -- is without merit.  Nothing in the Gonzalez Act imposes any
obligations or duties of care upon military physicians.  Consequently, a
physician allegedly committing malpractice under state or foreign law does
not "violate" the Gonzalez Act.
    The dissent disagrees.  According to the dissent, unless MDRV
2679(b)(2)(B) "was intended to preserve the Gonzalez Act remedy, it was
essentially without purpose."  Post, at 8.  However, the dissent never
attempts to square this assertion with the plain language of MDRV
2679(b)(2)(B), which permits only those suits against Government employees
"brought for a violation of a statute of the United States under which such
action against an [employee] is otherwise authorized" (emphasis added).  At
no point does the dissent indicate how a military physician's malpractice
under state or foreign law could be deemed a "violation" of the Gonzalez
Act.  Nor can the dissent avoid this obstacle merely by invoking the canon
of statutory construction that every provision of a law should be given
meaning.  See post, at 9, and n. 8.  It is true that the legislative
history fails to disclose (and neither we nor the dissent has attempted to
discover) what cause(s) of action Congress sought to preserve when it
enacted MDRV 2679(b)(2)(B), but a malpractice suit alleging a "violation"
of the Gonzalez Act cannot have been one of them.  The Gonzalez Act simply
does not impose any duties of care upon military physicians that could be
violated.
    The dissent resists this conclusion because it is impressed by
"Congress' general intent, expressed throughout the hearings and in the
House Report, that [the Liability Reform Act] not curtail any preexisting
remedies of tort victims."  Post, at 8.  The truth is, however, that the
legislative history reveals considerably less solicitude for tort
plaintiffs' rights than the dissent suggests.  As we have already noted,
see n. 9, supra, the House Report expressly warned that, under the
Liability Reform Act, "any claim against the government that is precluded
by [FTCA] exceptions" -- which obviously would include claims barred by the
exception for causes of action arising abroad -- "also is precluded against
an employee."  H. R. Rep. 100-700, at 6 (emphasis added).  This
congressional intent was clearly implemented in MDRV 5 of the Act, and we
are obliged to give it effect.

IV
    For the reasons set forth above, the judgment of the Court of Appeals
is reversed, and the case is remanded for further proceedings consistent
with this opinion.

So ordered.








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1
    Respondents brought their claim under California law, Italian law, and
"general American principles of law."  See Complaint MDRV 19.

2
    As an alternative ground for dismissal, the District Court cited
respondents' failure to present their claim to the appropriate federal
agency within the time required under 28 U. S. C. MDRV 2401(b).  See App.
to Pet. for Cert. 17a-18a.

3
    Section 5 of the Act provides:

    "The remedy against the United States provided by [the FTCA] for injury
or loss of property, or personal injury or death arising or resulting from
the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment is exclusive of
any other civil action or proceeding for money damages by reason of the
same subject matter against the employee whose act or omission gave rise to
the claim or against the estate of such employee.  Any other civil action
or proceeding for money damages arising out of or relating to the same
subject matter against the employee or the employee's estate is precluded
without regard to when the act or omission occurred."  28 U. S. C. MDRV
2679(b)(1).

4
    Pursuant to MDRV 8(b), the Liability Reform Act applies to all
proceedings pending on the date of its enactment.  102 Stat. 4565-4566,
note following 28 U. S. C. MDRV 2679.  Respondents do not dispute that the
Act applies in this case.

5
    Under MDRV 6 of the Liability Reform Act, the Attorney General is
required to certify that the original defendant (the Government employee)
"was acting within the scope of his office or employment at the time of the
incident out of which the claim arose."  28 U. S. C. MDRV 2679(d)(1).  Once
certification occurs, the action "shall be deemed an action against the
United States [under the FTCA] and the United States shall be substituted
as the party defendant."  Ibid.  Where the Attorney General refuses to
issue such certification, the Act permits the employee to seek a judicial
determination that he was acting within the scope of his employment. MDRV
2679(d)(3).

6
    Following the Liability Reform Act's enactment and the Eleventh
Circuit's decision in Newman v. Soballe, 871 F. 2d 969 (1989), the
Government withdrew reliance on the Gonzalez Act as a basis for affirming
the District Court's ruling.  However, Dr. Marshall, appearing pro se,
requested the Ninth Circuit to address the applicability of the Gonzalez
Act.  See Brief for United States 5, n. 3.  Following the rationale of
Newman v. Soballe, supra, the Ninth Circuit held that the Gonzalez Act made
the FTCA the exclusive remedy only for malpractice committed by stateside
military medical personnel and that the Act left foreign-based military
medical personnel like Dr. Marshall subject to malpractice liability.  See
885 F. 2d, at 651-654.  Because the Government did not raise the Gonzalez
Act issue in its petition for certiorari, we need not address that portion
of the lower court's ruling that denied Dr. Marshall immunity under the
Gonzalez Act.  In any event, that question is rendered irrelevant in this
case by our holding that the Liability Reform Act confers Dr. Marshall
immunity.

7
    The First, Fifth and Tenth Circuits all have held that the Liability
Reform Act applies even when an FTCA exception precludes liability against
the Government.  See Nasuti v. Scannell, 906 F. 2d 802, 810, n. 14 (CA1
1990); Mitchell v. Carlson, 896 F. 2d 128 (CA5 1990); Aviles v. Lutz, 887
F. 2d 1046 (CA10 1989).  The Eleventh Circuit has taken the opposite
position.  See Newman v. Soballe, supra, at 971.

8
    See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

9
    The legislative history fully supports our construction.  In
particular, the House Committee Report provides:

    "The `exclusive remedy' provision . . . is intended to substitute the
United States as the solely permissible defendant in all common law tort
actions against Federal employees who acted in the scope of employment.
Therefore, suits against Federal employees are precluded even where the
United States has a defense which prevents actual recovery.  Thus, any
claim against the government that is precluded by the exceptions set forth
in Section 2680 of Title 28, U. S. C.[,] also is precluded against an
employee in his or her estate."  H. R. Rep. No. 100-700, p. 6 (1988)
(emphasis added).

    The Ninth Circuit deemed the Report "internally inconsistent," 885 F.
2d, at 656, because of other language in the Report stating that "[u]nder
[the Liability Reform Act], no one who previously had the right to initiate
a lawsuit will lose that right," H. R. Rep., supra, at 7.  The Ninth
Circuit understood this passage to suggest that Congress did not intend to
narrow existing rights of recovery.  However, this language must be read in
conjunction with a preceding sentence in the Report, which states that the
Act "contains provisions to ensure that no one is unfairly affected by [the
Act's] procedural ramifications" and that, where "an injury has occurred
before [the Act] is enacted, but no lawsuit has yet been filed . . . , the
claimant will have to pursue a remedy against the United States, not
against the employee."  Ibid.  When read in context, the passage relied on
by the Ninth Circuit indicates that those with existing lawsuits would be
permitted to continue to prosecute them by substituting the Government for
the employee.  The passage supports only the conclusion that the Liability
Reform Act preserved the procedural right to initiate an action.  It does
not suggest that the Act did not narrow existing substantive rights of
recovery.

10
    We note, moreover, that Congress included within MDRV 9 a provision
parallel to that under MDRV 5 preserving employee liability for Bivens
actions.  See 16 U. S. C. MDRV 831c-2(a)(2).  Likewise, MDRV 9 contains
language parallel to the "limitations and exceptions" language within MDRV
6. See 16 U. S. C. MDRV 831c-2(b)(4) (indicating that action against TVA
under MDRV 9 "shall be subject to the limitations and exceptions applicable
to" actions against the TVA generally).

11
    The Gonzalez Act was passed in response to the decision in Henderson v.
Bluemink, 167 U. S. App. D. C. 161, 511 F. 2d 399 (1974), which held that
an Army physician did not have absolute immunity from suit for alleged
malpractice committed within the scope of his employment.  See S. Rep. No.
94-1264, p. 4 (1976).  Similar pre-immunity statutes were enacted for other
medical personnel employed by the Government, including those in the State
Department, see 22 U. S. C. MDRV 2702, the Veterans' Administration, see 38
U. S. C. MDRV 4116, and the Public Health Service, see 42 U. S. C. MDRV
233.  Another immunity statute was enacted to shield Defense Department
attorneys from claims of legal malpractice.  See 10 U. S. C. MDRV 1054.
Finally, before it was expressly repealed by the superseding provisions of
the Liability Reform Act, the Federal Drivers Act, 28 U. S. C. MDRV
2679(b)-(e) (1982 ed.), made the FTCA the exclusive remedy for torts
committed by Government employees while operating a motor vehicle within
the scope of their employment.

12
    Section 1089(a) provides:

    "The remedy against the United States provided by [the FTCA] for
damages for personal injury, including death, caused by the negligent or
wrongful act or omission of any physician, dentist, nurse, pharmacist, or
paramedical or other supporting personnel . . . of the armed forces . . .
while acting within the scope of his duties or employment . . . shall
hereafter be exclusive of any other civil action or proceeding by reason of
the same subject matter against such physician, dentist, nurse, pharmacist,
or paramedical or other supporting personnel (or the estate of such person)
whose act or omission gave rise to such action or proceeding."

13
    Section 1089(f) provides:

    "The head of the agency concerned may, to the extent that the head of
the agency concerned considers appropriate, hold harmless or provide
liability insurance for any person described in subsection (a) for damages
for personal injury, including death, caused by such person's negligent or
wrongful act or omission in the performance of medical, dental, or related
health care functions (including clinical studies and investigations) while
acting within the scope of such person's duties if such person is assigned
to a foreign country . . . ."

14
    See also Jackson v. Kelly, 557 F. 2d 735, 740-741 (CA10 1977)
(endorsing this view in dictum).  But cf. Powers v. Schultz, 821 F. 2d 295
(CA5 1987) (reasoning that MDRV 1089(f)'s indemnify-or-insure language
applies only when foreign-based personnel are sued in foreign courts and
that such personnel remain immune from suit in a United States court).

15
    The dissent contends that we have rendered "virtually meaningless" the
insure-or-indemnify clause of MDRV 1089(f) of the Gonzalez Act by holding
that the Liability Reform Act bars any malpractice action in state or
federal court against a foreign-based military physician.  See post, at 2.
This is not true.  In the wake of the Liability Reform Act, insurance or
indemnification against malpractice suits in domestic courts is no longer
needed, but MDRV 1089(f) still serves to protect foreign-based military
personnel against malpractice suits in foreign courts.  See Powers v.
Schultz, 821 F. 2d, at 297.

16
    The House Committee Report echoes the all-encompassing language of the
statute: "The `exclusive remedy' provision . . . is intended to substitute
the United States as the solely permissible defendant in all common law
tort actions against Federal employees who acted in the scope of
employment."  H. R. Rep., No. 100-700, at 6 (emphasis added).