Hui v. Castaneda

From ScotusWiki

Argued March 2, 2010.

Authorship: Luke Appling of Harvard Law School and Masha Hansford of Stanford Law School

Issue: Does 42 U.S.C. § 233(a) make the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions?

1 Briefs and Documents
2 Opinion Recap
3 Argument Recap
4 Pre-Argument Articles
- 4.1 Argument Preview
5 Links and Further Information
- 5.1 Media Links

Briefs and Documents

Decision

REVERSED AND REMANDED in a 9-0 decision with an opinion written by Justice Sotomayor.

Oral Argument

Transcript (March 2, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion below (9^th Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of United States
Petition for certiorari (08-1547)
Petitioner's reply (08-1547)
Brief amicus curiae of Commissioned Officers Association of the United States Public Health Service, Inc. (08-1547)

Opinion Recap

Masha Hansford originally wrote the following for SCOTUSblog:

On May 3, the Court issued its opinion in Hui v. Castaneda (No. 08-1529). At issue in the case was whether 42 U.S.C. § 233(a), a statute governing the Public Health Service, makes the Federal Tort Claims Act (FTCA) the exclusive remedy for claims arising from medical care provided by Public Health Service (PHS) personnel, thus barring Bivens actions against them. In a unanimous thirteen-page opinion by Justice Sotomayor, the Court answered that question in the affirmative, reversing the Ninth Circuit and holding that Section 233(a) provides PHS officers and employees with immunity from Bivens actions for constitutional harms committed in the line of duty.

In 2006, Francisco Castaneda was detained by U.S. Immigration and Customs Enforcement (ICE). Castaneda complained to PHS employees at the facility about a penile lesion that was increasing in size, painful, and emitting a discharge. Several physicians recommended a biopsy to determine if the lesion was cancerous; however, even as Castaneda’s conditioned worsened, PHS repeatedly denied the requests, deeming a biopsy “elective.” After ICE released him, Castaneda received a biopsy, which confirmed that he had penile cancer, and further tests showed that it had metastasized. Castaneda had his penis amputated and underwent chemotherapy, but he died a year after his release.

Castaneda’s estate brought FTCA and Bivens claims against his PHS doctor and the supervising PHS officer, alleging that their deliberate indifference to his serious medical needs violated his rights under the Fifth, Eighth, and Fourteenth Amendments. In response, the PHS personnel filed a motion to dismiss, arguing that Section 233(a) provides them with absolute immunity from Bivens actions by making a suit against the United States under the FTCA the exclusive remedy for the injuries to Castaneda.

Quickly summarizing the tragic facts of this case and deftly dismissing the seeming tension with Carlson v. Green (1980), in which the Court held that the availability of an FTCA remedy did not preclude a Bivens action, the Court resolved the question with startling ease. Indicating that the inquiry “begins and ends with the text of § 233(a)” and avoiding any foray into legislative history, the Court concluded that the broad language of § 233(a) provides PHS personnel with absolute immunity by limiting recovery to suits against the United States. The Court was untroubled that Section 233(a) predated Bivens: although Congress could not have been aware of the Bivens remedy in creating the immunity, “[l]anguage this broad easily accommodates both known and unknown causes of action.” It also noted that the Westfall Act contains language similar to Section 233(a) and an explicit exception for constitutional claims; thus, the Court reasoned, Congress’s decision not to enact a similar exception to § 233(a) immunity “is telling.”

The Court distinguished Carlson, on which the Ninth Circuit relied below, explaining that there are two distinct questions under Bivens. First, does a Bivens claim lie “for a particular constitutional violation”? Second, can a claim lie against a particular set of defendants or are they are immune from a Bivens suit? The Court explained that Carlson only addressed the first question; indeed, the defendants in Carlson “invoked no official immunity.” Carlson is thus “inapposite” to the question in this case: whether the FTCA creates official immunity for the PHS workers. Cabining its holding to the immunity question, the Court resisted petitioners’ broader appeal to the Bivens-limiting Wilkie v. Robbins (2007) and Bush v. Lucas (1983). It distinguished those cases, like Carlson, as involving “only the existence of an implied cause of action for an alleged constitutional violation,” while – by contrast – the case at hand presents a “separate question.”

In arguing that a Bivens claim should lie, respondents advanced a series of arguments relying on the Westfall Act’s exception for constitutional claims. One by one, the Court rejected these arguments. First, it explained that Section 233(a) incorporates only provisions that establish the “FTCA remedy,” thereby rejecting the argument that Section 233(a) incorporates by reference the entire FTCA – including the Westfall Act and its exceptions from immunity. It also rejected respondents’ argument that the Westfall Act exception directly applies to PHS personnel, noting that such a reading would require the Westfall Act to partially repeal the more specific Section 233(a) by implication. The Court also rejected respondents’ argument that because Section 233(a) lacks a mechanism for confirming that defendants’ actions occurred within the scope of employment, PHS defendants must use the general FTCA certification mechanism, which is subject to the Westfall Act exception.

Finally, the Court rejected respondents’ argument that the FTCA is not truly an exclusive remedy because Section 233(f) envisions suits by injured parties who lack an FTCA remedy. Such an argument does not apply here, the Court explained, because the FTCA remedy is “unquestionably available” in this case. The Court similarly declined to consider the policy arguments advanced by respondents and their amici. In doing so, it emphasized the “confines” of the judicial role that “require[]” it to adhere to the text – which here “plainly” precludes Bivens actions.

As a result of this decision, respondents and those who are similarly situated may seek redress only under the FTCA, which does not provide for a jury trial and strictly caps damages. However, Congress can amend § 233(a) at any time if it wishes to exempt Bivens actions from the immunity provided by the statute.

Argument Recap

Luke Appling originally wrote the following for SCOTUSblog:

During the oral argument in Hui v. Castaneda, the Court wrestled with the meaning of Section 233(a) and the effect of the later-enacted Westfall Act, while largely avoiding the more ideologically charged questions about the proper role of Bivens actions.

Arguing on behalf of the petitioners, Ms. Elaine Goldenberg argued that Section 233(a) precludes Bivens actions by making the FTCA the exclusive remedy. Justice Sotomayor questioned whether that could have been Congress’s intent, given that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) had not been decided when Section 233(a) was enacted. Justice Kennedy, on the other hand, countered that such immunity clauses are designed to apply to both foreseen and unforeseen causes of action, a proposition with which Ms. Goldenberg agreed. Objecting to what he described as attempts to “psychoanalyze” what Congress may have known, Justice Scalia sought to focus on the text of Section 233(a). In response, Ms. Goldenberg argued that Section 233(a)’s grant of immunity from “any other civil action” except for the FTCA is very broad and applies to Bivens actions.

Justices Ginsburg and Stevens raised several concerns with the petitioners’ argument. Justice Ginsburg first noted that the Westfall Act applies to all federal employees, including PHS personnel. While agreeing, Ms. Goldenberg argued that PHS personnel can take advantage of both the immunities provided by the Westfall Act and the more specific immunities afforded by Section 233(a). When Justice Ginsburg asked whether recovery would be limited under the FTCA in light of California law, Ms. Goldenberg responded that the cap only applies to non-economic damages, and there may be ways to circumvent the cap in this case. Finally, Justice Stevens observed that, in Carlson v. Green (1980), the government did not argue that the defendant PHS employee was immune from Bivens actions under Section 233(a). Ms. Goldenberg responded that it is not clear why the defense was not raised there; in any event, however, the real significance of Carlson is that the Court identified Section 233(a) as an example of Congress’s explicit preclusion of non-FTCA remedies.

Arguing on behalf of the United States as an amicus in support of the petitioners, Assistant to the Solicitor General Pratik Shah reiterated that the plain terms of Section 233(a) are broad enough to preclude Bivens actions even if Congress did not specifically contemplate such actions. Justice Sotomayor questioned why Congress would immunize PHS personnel from Bivens actions through Section 233(a) but subject other prison personnel to such actions under the Westfall Act. Mr. Shah argued that Congress sought to revitalize the PHS by providing this immunity. In response, Justice Scalia argued that, because Section 233(a) and the Westfall Act were enacted by different Congresses, there was no need to reconcile the different treatment they provide to PHS and other personnel, a point with which Mr. Shah agreed.

On behalf of the respondents, Mr. Conal Doyle argued that Section 233(a) does not preclude Bivens actions because it does not specifically indicate that the FTCA is a substitute for Bivens. Moreover, he argued, the later-enacted Westfall Act clarifies that Congress did not intend the FTCA to be such a substitute. But questions from the Justices – from both ends of the ideological spectrum – suggested that the Court was quite skeptical of that argument. For example, Justice Scalia emphasized that Section 233(a) makes the FTCA the exclusive remedy and asked whether the respondents were arguing that the Westfall Act repealed Section 233(a). When Justices Ginsburg and Breyer similarly asked whether the Westfall Act amended Section 233(a) by implication, Mr. Doyle answered that it did so “in effect” because it is incorporated by reference through the act.

Mr. Doyle also advanced a different interpretation of Carlson, which in his view was significant insofar as it required an explicit declaration by Congress that another remedy was intended to preclude a Bivens action. Yet Justice Ginsburg interjected that this was a “surprising statement” because the Court in Carlson had identified Section 233(a) as an example of Congress having made the FTCA the exclusive remedy, and Justice Breyer agreed that Carlson’s reference to Section 233(a) is “the problem for [the respondent] in this case.” Mr. Doyle responded that the Carlson Court cites Section 233(a) as an example of exclusivity, but with regard to malpractice claims rather than Bivens claims.

In her rebuttal, Ms. Goldenberg argued that in cases since Carlson, the Court has found the existence of an alternative remedial scheme sufficient to prevent the recognition of a Bivens action. The Court asked no questions during the rebuttal.

Pre-Argument Articles

Argument Preview

Luke Appling originally wrote the following for SCOTUSblog:

Section 233(a) of Title 42 of the United States Code provides that recovery against the United States under the Federal Tort Claims Act (FTCA) “shall be exclusive of any other civil action or proceeding” in cases seeking damages for injuries resulting from medical treatment provided by an employee of the U.S. Public Health Service (PHS). Shortly after Section 233(a) was enacted, the Supreme Court issued its opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), establishing that – even in the absence of legislation authorizing a suit – a victim of a constitutional violation can bring an action for damages directly under the Constitution. Today in No. 08-1529, Hui v. Castaneda, the Court will consider whether Section 233(a) precludes an action under Bivens.

In 2006, Francisco Castaneda, an alien, was held in the custody of the U.S. Immigration and Customs Enforcement (ICE) pending removal proceedings against him. While at the ICE facility, Castaneda reportedly complained to medical staff (who were PHS personnel) about a painful and growing lesion on his penis and a family history of cancer. Petitioner Esther Hui, a PHS physician, examined Castaneda but later declined an oncologist’s offer to admit him to a hospital for a biopsy to determine whether the lesion was cancerous. Petitioner Stephen Gonsalves, a PHS health services administrator, wrote a memorandum in which he described the biopsy as “elective” and indicated that the care Mr. Castaneda was receiving was “necessary, appropriate, and in accordance with our policies.” Although the lesion worsened while Castaneda was in custody, no biopsy was conducted at that time. After Castaneda was released, however, he went to a private hospital, where he was diagnosed with penile cancer and subsequently had his penis amputated. The cancer had metastasized, and Castaneda died in February 2008.

Shortly before his death, Castaneda filed a lawsuit that included FTCA claims against the United States and Bivens claims against petitioners Hui and Gonsalves – the latter of whom, he alleged, violated the Fifth and Eighth Amendments through their deliberate indifference to his health and purposeful denials of treatment. The United States certified that petitioners had been acting within the scope of their employment and then moved to dismiss, arguing that under Section 233(a) the FTCA was the exclusive remedy available to Castaneda’s heirs and the representative of his estate, who had been substituted for Castaneda after his death and are respondents in the case now before the Court. The district court denied the motion to dismiss, and Hui and Gonsalves (who were subsequently represented by private counsel after the government admitted liability on the FTCA claim against it) appealed. On appeal, the Ninth Circuit affirmed, relying on Carlson v. Green (1980), in which the Court held that the availability of an FTCA remedy did not preclude a Bivens action. Hui and Gonsalves then filed a petition for certiorari in which they argued (among other things) that the Ninth Circuit’s decision directly conflicted with a Second Circuit decision holding that Section 233(a) barred a Bivens action against a PHS physician at a federal prison. The Supreme Court granted cert. on September 30, 2009.

The separate merits briefs filed by petitioners Hui and Gonsalves make two core arguments. First, they argue that the text of Section 233(a) makes clear that the FTCA is the exclusive remedy in cases like this one, thereby precluding Bivens actions against PHS personnel: it provides that, in claims resulting from the medical functions of PHS officers or employees, suits against the United States under the FTCA “shall be exclusive of any other civil action or proceeding.” This reading of Section 233(a) is confirmed, they argue, by language in Carlson (which cites Section 233(a) as “a prime example of a statute that makes the FTCA remedy exclusive”), Congress’s acquiescence in lower-court decisions reaching that conclusion, and the fact that the text of the Westfall Act contains language very similar to Section 233(a) but expressly includes language allowing Bivens claims. This reading is also supported by the legislative history of Section 233(a), which makes clear that Congress was concerned with providing PHS personnel with complete immunity from personal liability to aid recruiting and retention.

Second, Hui and Gonsalves argue, the Court has clarified in recent cases like Wilkie v. Robbins (2007) that Bivens actions are not available when Congress has provided an alternative remedy or where there are special circumstances. They argue that, under Bush v. Lucas (1983) and Schweiker v. Chilicky (1988), the presence of an alternative remedy – particularly when Congress has deemed it “exclusive” – precludes Bivens actions even if the alternative is not “equally effective” in the sense of providing the same damages or process available under Bivens. The FTCA is such an alternative in this case, as it permits Castaneda to recover damages from the United States for the negligence he alleges. Because the remedy need not be equal to what would be available under Bivens, concerns (such as those cited by the Ninth Circuit in its opinion below) regarding the FTCA’s limitations on damages are irrelevant. Moreover, there are special factors that counsel against recognizing a Bivens remedy here – namely, Congress’s concern that allowing personal liability would hamper the recruitment and retention of PHS personnel.

In their brief on the merits, respondents similarly make two principal arguments. First, they argue that Section 233(a) actually preserves a Bivens remedy by incorporating the FTCA provision which expressly preserves it: Section 233(a) references 28 U.S.C. 1346(b), which is subject to Chapter 171 of Title 28, which codifies the Westfall Act. Section 2679 of the Westfall Act, in particular, makes clear that the FTCA does not preclude Bivens actions. In fact, respondents argue, because Section 2679 applies to all federal employees, it would therefore preserve the Bivens remedy even if Section 233(a) did not explicitly reference it. But in any event, respondents argue, their reading of Section 233(a) is confirmed by two other subsections in that provision: subsection (c), which does not contain a procedure necessary for the government to substitute itself for a PHS employee facing a Bivens suit; and subsection (f), which by authorizing the government to insure or indemnify PHS personnel thereby suggests that Congress did not intend to confer complete immunity on them. Moreover, because Section 233(a) was enacted before the Court even recognized Bivens actions, Congress could not have intended it to preclude such actions – which also explains why the title of Section 233(a) refers only to malpractice and negligence suits and not to constitutional torts.

The respondents next argue that the Court’s Bivens jurisprudence confirms that Section 233(a) does not immunize petitioners from Bivens liability. Indeed, the Court in Carlson had already considered – and upheld the availability of – what the respondents characterize as an analogous Bivens suit against PHS personnel for deliberate indifference to a prisoner’s medical needs. Just as in Carlson, respondents argue, Congress here did not intend the FTCA to be a substitute for Bivens. Also as in Carlson, the FTCA is an inadequate remedy because damages are limited and recovery against the United States will not deter constitutional violations by individuals. Finally, there are no special factors counseling against a Bivens action here because government indemnification would prevent personal liability under Bivens from harming recruiting efforts.

The United States filed an amicus brief in support of the petitioners in which it reiterated their arguments regarding the plain language and legislative history of Section 233(a). The government also argues that the Westfall Act’s carve-out to preserve the availability of Bivens merely created a carve-out from the new immunity that the Act conferred and did not affect the preexisting immunity from suit in Section 233(a).

Links and Further Information

Media Links

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