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Supreme Court hears arguments on government immunity, takings

The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. The first, Levin v. United States [transcript, PDF; JURIST report] concerned whether the Gonzales Act [10 USC § 1089 text] properly immunizes government medical personnel against battery suits. The Gonzales Act allows that certain medical malpractice suits may only be brought against the US under the Federal Torts Claims Act (FTCA) [official website], but the FTCA includes a waiver for battery suits. Steven Levin's attorney argued that the Gonzales Act was created precisely to allow medical malpractice suits against the government as opposed to individuals employed by the government:

[W]hat the intentional tort exception provides is—actually what it says is: "The provisions of the Federal Tort Claims Act shall not apply to any case arising out of assault, battery," and so on. And by eliminating that, the provisions of the Federal Tort Claims Act are otherwise totally applicable to cases of medical battery, like this, or other claims of intentional tort. And so for cases covered by the Gonzalez Act; that is, cases of medical malpractice committed within the scope of employment by the doctors of the certain specified agencies that Congress has named for those cases, there is no intentional tort exception, and therefore, you can bring an action against the government.
The government argued that, for the petitioner to win, the Gonzales Act has to waive sovereign immunity explicitly: "There is nothing in that legislative history that says it is—it thought 1089(e) nullified the intentional tort exception. It says it's patterned after the Gonzalez Act, and then it changed the main language, the opening proviso of that provision."

The court also heard arguments in Koontz v. St. Johns River Water Management District [transcript, PDF; JURIST report] where it considered if the government taking of land after an owner refuses to act in compliance with a permit is a violation of the Takings Clause of the Fifth Amendment [backgrounder]. Carl Koontz refused to contribute money to protect the wetlands in order to get a permit to redevelop some acres of land. The St. Johns River Water Management District then denied his permit, but did not take his land. Koontz's attorney argued that although not an official taking, forcing Koontz to make a conservation easement on his property violated Nolan v. California Coastal Commission and Dolan v. Tigard [opinions]. The water management district suggested Koontz failed to take sufficient actions to get his permit. "The parties agree that Florida may require a landowner to perform mitigation as a condition for a permit that would allow the destruction of a wetlands. The parties disagreed as to how much mitigation was appropriate in this case. The district thought that Mr. Koontz's proposal was insufficient to mitigate the damage to wetlands. Mr. Koontz rejected the district's counterproposals and he refused to do anything more. And the district denied his permit application because he refused to do anything more."

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