Barring Bivens: The Court finds an immunity for Public Health Service personnel
on May 4, 2010 at 7:02 pm
Below, Masha Hansford of Stanford Law School recaps yesterday’s decision in Hui v. Castaneda.Â (In March, Luke Appling of Harvard Law School previewed and recapped the oral arguments for SCOTUSblog.)Â Check the Hui v. Castaneda (08-1529) SCOTUSwiki page for additional information.
Yesterday, the Court issued its opinion in Hui v. Castaneda (No. 08-1529). At issue in the case was whether 42 U.S.C. Â§ 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 Castanedaâ€™s conditioned worsened, PHS repeatedly denied the requests, deeming a biopsy â€œelective.â€ 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.
Castanedaâ€™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 â€œbegins and ends with the text of Â§ 233(a)â€ and avoiding any foray into legislative history, the Court concluded that the broad language of Â§ 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, â€œ[l]anguage this broad easily accommodates both known and unknown causes of action.â€Â 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, Congressâ€™s decision not to enact a similar exception to Â§ 233(a) immunity â€œis telling.â€
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 â€œfor a particular constitutional violationâ€? Second, can a claim lie against a particular set of defendants or are they are immune from a Bivens suit?Â The Court explained that Carlson only addressed the first question; indeed, the defendants in Carlson â€œinvoked no official immunity.â€ Carlson is thus â€œinappositeâ€ 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 petitionersâ€™ broader appeal to the Bivens-limiting Wilkie v. Robbins (2007) and Bush v. Lucas (1983).Â It distinguished those cases, like Carlson, as involving â€œonly the existence of an implied cause of action for an alleged constitutional violation,â€ while â€“ by contrast â€“ the case at hand presents a â€œseparate question.â€
In arguing that a Bivens claim should lie, respondents advanced a series of arguments relying on the Westfall Actâ€™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 â€œFTCA remedy,â€ thereby rejecting the argument that Section 233(a) incorporates by reference the entire FTCA â€“ including the Westfall Act and its exceptions from immunity. It also rejected respondentsâ€™ 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 respondentsâ€™ argument that because Section 233(a) lacks a mechanism for confirming that defendantsâ€™ 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 respondentsâ€™ 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 â€œunquestionably availableâ€ in this case.Â Â The Court similarly declined to consider the policy arguments advanced by respondents and their amici.Â In doing so, it emphasized the â€œconfinesâ€ of the judicial role that â€œrequireâ€ it to adhere to the text â€“ which here â€œplainlyâ€ 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 Â§ 233(a) at any time if it wishes to exempt Bivens actions from the immunity provided by the statute.