dissenting:
I respectfully dissent from the majority’s decision instructing the district court to remand the action to the state court. Based on the Gonzalez Act’s language and the congressional scheme for immunizing armed forces medical personnel from personal liability, I would affirm the district court’s exercise of jurisdiction and subsequent dismissal under the sovereign immunity doctrine. My position is: this plaintiff has no cause of action against this armed forces physician in a court in the United States.
The majority concludes that the district court lacked jurisdiction over the New-mans’ claim because such claim fell outside of the Federal Torts Claims Act (FTCA). I concede that the FTCA does not apply to the Newmans’ claim because it arose in a foreign country. The district court had jurisdiction to dismiss the claim.
Congress enacted the Gonzalez Act to immunize armed forces medical personnel from civil suit and personal liability for negligent acts performed in the scope of their employment. H.R.Rep. No. 333, 94th Cong.2d Sess. 2 (1976). To accomplish this goal, subsection (a) of the Act makes a suit against the United States the exclusive remedy for such malpractice:
The remedy against the United States provided by sections 1346(b) and 2672 of Title 28 for damages for personal injury ... caused by the negligent or wrongful act or omission of any [armed forces] physician ... in the performance of medical ... functions ... 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 ... whose act or omission gave rise to such action or proceeding.
10 U.S.C.A. § 1089(a) (West Supp.1988). The majority creates an exception to this exclusivity rule by allowing suits against medical personnel when the injured party cannot sue the United States under the FTCA.
Neither the Act’s language nor its sole purpose of immunizing medical employees from liability for negligent acts committed within the scope of such individuals’ duties supports such an exception. First, subsection (a), quoted above, does not expressly create any exceptions. Second, the legislative history fails to discuss any exceptions to the exclusivity rule. According to the Senate report, the purpose of the Act is as follows: “In short, defense medical personnel would be immunized from malpractice suits.” S.Rep. No. 94-1264, 94th Cong.2d Sess. 1, reprinted in 1976 U.S.Code Cong. & Admin.News 4443. The Senate report further states that the Senate Armed Services Committee recommended the Act “to provide an exclusive remedy against the United States in suits based upon medical malpractice on the part of military or civilian medical personnel of the armed forces_” S.Rep. No. 94-1264, 94th Cong.2d Sess. 1 (1976), U.S.Code Cong. & Admin.News 1976, p. 4443.
Finally, other circuits’ decisions have refused to interpret the Act as allowing a suit against an individual simply because the United States is immune from suit. For example, the Fifth Circuit stated:
The meaning [of section 1089(a) ] is clear: for the causes designated, a suit against the United States is the only remedy against the physician. When suit falls within these designated causes and there can be no recovery against the United States, the plaintiff has reached the end of the line.
Jones v. Newton, 775 F.2d 1316, 1318 (5th Cir.1985). The Sixth Circuit has similarly held that the Gonzalez Act bars a federal *979employee’s suit against an armed forces physician even though the Federal Employee Compensation Act precludes such employee from recovering against the United States under the FTCA. Baker v. Barber, 673 F.2d 147, 148-49 (6th Cir.1982).
The majority, however, concludes that sections 1089(c) and (f) demonstrate Congress’s intent to allow a party to sue armed forces medical personnel when the FTCA does not apply. I disagree. Subsection (c) serves two functions. Initially, subsection (c) implements the exclusivity provision by requiring the removal of state court actions to a federal district court and the substitution of the United States as the sole defendant if the alleged negligence occurred in the scope of the medical person’s duties. 10 U.S.C.A. § 1089(c) (1983).
In addition, subsection (c) contains a limited remand provision:
[If] a United States district court determine[s] on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States the case shall be remanded to the State Court. [Emphasis added.]
10 U.S.C. § 1089(c) (1983). Contrary to the majority’s interpretation, this provision does not require a remand if the individual cannot ultimately recover against the United States; permitting a remand under such circumstances would undermine the Act’s purpose of providing immunity to the medical personnel. See Powers v. Schultz, 821 F.2d 295, 298 (5th Cir.1987) (no remand under subsection (c) even though foreign country exception to FTCA precludes recovery against United States). Rather, this provision requires a remand only when the plaintiff’s complaint does not aver a cognizable cause of action under section 1089(a). See Powers 821 F.2d at 298. Under section 1089(a), a cause of action exists for claims of personal injury resulting from a military physician’s negligence in the scope of such physician’s duties. Because Dr. Soballe is an armed forces physician whose alleged negligence occurred in the performance of his duties as a military physician, a section 1089(a) cause of action exists; and therefore, the district court properly refused to remand the case.
Turning to subsection (f), the majority concludes that this subsection indicates that Congress did not intend subsection (a) to apply when the FTCA does not apply. Subsection (f) provides for liability insurance to cover military medical employees’ negligent actions performed within the scope of such employees’ duties in a foreign country. The majority interprets this provision as allowing suits against medical personnel in United States courts for medical malpractice occurring in foreign countries.
Given the Act’s purpose of immunizing medical personnel, subsection (f) can only encompass suits filed in a foreign country’s judicial system. See Powers, 821 F.2d at 297. Medical malpractice occurring in a military facility in a foreign country is actionable in the United States and the foreign country. Obviously, Congress cannot immunize such employees in foreign countries from suit in foreign courts. Therefore, Congress created subsection (f) to provide liability insurance, the only protection possible, for military physicians, in suits in foreign courts. Powers, 821 F.2d at 297.
Because Congress clearly intended to immunize medical personnel from suit in the United States courts, we must construe subsection (f) narrowly, as only serving the necessary function of covering employees where Congress could not immunize them. Furthermore, interpreting the Act to allow suits for foreign malpractice would lead to an anomalous result because an injured party cannot sue military medical employees in a United States court for alleged negligence committed in the performance of their medical duties in the United States. See 10 U.S.C. § 1089(a). I cannot believe that Congress intended to throw armed forces medical personnel stationed in foreign countries to the wolves while protecting similarly situated domestic personnel. Accordingly, I dissent.