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A skeptical Court turns again to Bivens actions

Below, Luke Appling of Harvard Law School previews Hui v. Castaneda, the second case in which the Court will hear oral arguments this morning.  Check the Hui v. Castaneda (08-1529 and 08-1547) SCOTUSwiki page for additional updates.

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).