Hui v. Castaneda (08-1529)

Appealed from the United States Court of Appeals for the Ninth Circuit (Oct. 2, 2008)

Oral argument: March 2, 2010

FEDERAL TORT CLAIMS ACT, CONSTITUTIONAL LAW, MEDICAL NEGLIGENCE, BIVENS ACT

This case involves a lawsuit brought by the estate of decedent, Mr. Castaneda, against two Public Health Service (“PHS”) officials (collectively, the “Petitioners”) for failing to provide proper medical care to Mr. Castaneda during his custody in a state immigration facility. Mr. Castaneda had a growing, fungating lesion on his penis but was denied a simple skin biopsy from PHS officials. Consequently, Mr. Castaneda died of penile cancer at the age of 36. At issue here is whether the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“FTCA”), providing that federal employees are not protected from constitutional tort claims, extends to 422 U.S.C. § 233(a) of the Emergency Health Personnel Act, which covers PHS officials. The Supreme Court’s decision in this case may significantly affect the extent to which prisoners may seek recourse if denied constitutionally guaranteed access to adequate medical care while under state custody. This case may also affect public health personnel: while a decision for Respondents may discourage federal employees from committing constitutional violations, it may also negatively impact employment.

Question Presented

(1) 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?

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Issue

Whether a lawsuit claiming that federal employees of the Public Health Service committed medical negligence may be filed under a federal statute that makes the United States the defendant, or whether the employees may be sued personally for violating the Constitution.

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Facts

This case centers on interpreting the scope of immunity afforded to personal health service officials within the context of 42 U.S.C. § 233(a) of the Emergency Health Personnel Act. This statute covers the employees of the Public Health Service, and 28 U.S.C. §2679(b), or the Federal Tort Claims Act (“FTCA”), applies to federal employees generally. The FTCA provides immunity to all federal employees for common-law tort causes of actions, but explicitly allows for personal liability for constitutional violations. See 28 U.S.C. §2679(b)1?2. Yanira Castaneda, as personal representative of the estate of Francisco Castaneda, et al. (the “Respondents”), argue that § 233(a) grants a Bivens remedy — that is, personal liability for constitutional violations, following the case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics — because the statute incorporates the FTCA. See Brief for Respondent Yanira Castaneda, as Personal Representative of the Estate of Francisco Castaneda, et al. at 21-22. The Petitioners, Esther Hui, a civilian physician in the Public Health Service responsible for treating Mr. Castaneda during his detention, and Stephen Gonsalves, a commissioned officer of the U.S. Public Health Service, contend that because § 233(a) specifically states that the exclusive remedy for claimants is a claim against the United States, it effectively bars a Bivens remedy and does not incorporate the FTCA exception. See Brief for Petitioner Commander Stephen Gonsalves at 23; Brief for Petitioner Esther Hui at 19.

Mr. Castaneda was incarcerated by the State of California in December 2005. See Brief for Petitioner Commander Stephen Gonsalves at 4. While under state custody, Mr. Castaneda complained to medical staff about a painful penile lesion that led to excessive bleeding and discharge. See Brief for Petitioner Esther Hui at 3; Brief for Respondent Yanira Castaneda at 2. During the course of his stay in detention, Mr. Castaneda was seen by numerous medical personnel, including by Dr. Hui, who believed that Mr. Castaneda needed a skin biopsy to definitely rule out the possibility of cancer. See Brief for Respondent Yanira Castaneda at 3. Dr. Hui, however, repeatedly failed to arrange for the test to be administered and denied acceptance of an outside physician’s offer to conduct the biopsy on Mr. Castaneda’s penis. See id.

Mr. Castaneda’s condition worsened, affirmed by his appearance and echoed in the opinions of several outside physicians, who noted that Mr. Castaneda’s penis “now appear[ed] to be ‘exploding’ . . .” Brief for Respondent Yanira Castaneda at 6?7. On five separate occasions, Mr. Castaneda continued to report pain, discharge, foul odor, and blood from the lesions on his penis. See id. at 7; Brief for Petitioner Esther Hui at 6. Medical personnel, however, denied Mr. Castaneda a diagnostic test and instead gave him antihistamine and other pain relievers. See Brief for Respondent Yanira Castaneda at 7.

On November 17, 2006, Mr. Castaneda was seen by a private urologist who concluded that Mr. Castaneda had penile cancer; a recommendation for a biopsy was then approved. See Brief for Petitioner Esther Hui at 6. However, prior to the scheduled biopsy, Mr. Castaneda was released from state custody, and three days later, he saw a private doctor, who diagnosed him with squamous cell carcinoma. See id. at 6?7. He received chemotherapy and his penis was amputated; however, the cancer had spread, and he died two years later, on February 16, 2008. See id.

The Respondents asserted Federal Tort claims against the United States and Bivens claims against the Petitioners, alleging Fifth and Eighth Amendment violations for negligent medical care to Mr. Castaneda’s health needs. The Petitioners moved to dismiss the Bivens claims, which the District Court denied. The court of appeals then upheld the denial of immunity from Bivens, and the Supreme Court subsequently granted certiorari.

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Discussion

At the heart of this case is whether a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which held that federal employees are subject to suits based on constitutional claims, can be brought against individual Public Health Officers (“PHS”) for failing to provide proper medical care to its prisoners. Dr. Hui and Commander Gonsalves of the Public Health Service (collectively, the “Petitioners”) argue that the plain language of 42 U.S.C. § 233(a) precludes a Bivens cause of action against federal employees, limiting actions to claims against the United States. See Brief for Petitioner Esther Hui at 10. In response, Yanira Castaneda, as personal representative of the estate of Francisco Castaneda, et.al. (the “Respondents”), contend that the plain language of § 233(a) incorporating § 1346(b) of the Federal Employees Liability Reform and Tort Compensation Act (“FTCA”), which allows Bivens claims, along with congressional intent and this Court’s jurisprudence, makes clear that federal employees, including PHS personnel, are subject to Bivens claims and should be liable for unconstitutionally denying medical care to individuals under their custody. See Brief for Respondent Yanira Castaneda, as Personal Representative of the Estate of Francisco Castaneda, et al. at 17. A decision either way may significantly affect the character of the Public Health Service and the services it provides, along with impacting the prevalence of constitutional violations; it will also affect the recourse prisoners have to redress violations of their constitutional rights.

Amicus comprised of active duty and inactive retired commissioned officers of the United States Public Health Services (“USPHS”) argue that subjecting public medical personnel to medical malpractice claims would severely harm PHS’s ability to recruit and retain qualified personnel. See Brief of Amici Curiae Commissioned Officers Association of the United States Public Health Service, Inc., et al. (“COA”), in Support of Petitioners at 6. According to USPHS, medical personnel serving the public would feel obligated to purchase individual malpractice insurance to protect against the high costs associated with potential litigation. See id. USPHS asserts that this presents a steep financial burden because public sector employees are not paid nearly as much as private sector employees, and this would deter them from seeking employment with USPHS. See id. at 5?6. USPHS claims that this burden would be further exacerbated because public servants would have to pay even higher protection coverage since they, also unlike private sector personnel, would be exposed to constitutional tort claims, which professional liability policies do not cover. See id. at 6?7. The net effect, USPHS maintains, would be to force the lowest-paid medical practitioners to pay the highest costs to protect themselves, inevitably leading to a decline in the recruitment and retention of qualified personnel, and limiting USPHS’s ability to respond to the needs of poor communities. See id. at 6, 9. Likewise, such a threat, USPHS contends, would also discourage medical personnel to work in detention facilities and federal prisons where they would be more likely to be subject to constitutional tort claims. See id.

Amici American Civil Liberties Union (“ACLU”), on the other hand, asserts that the harm here – deliberate neglect or intentional harm by public medical personnel - can only be remedied through Bivens. See Brief of Amicus Curiae ACLU in Support of Respondents at 9. The ACLU points to case law stating that the purpose of Bivens “is to deter individual federal officers from committing constitutional violations.” See id. at 10 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)). In the view of the ACLU and amicus National Immigrant Justice Center (“NIJC”), the Bivens remedy is necessary to discourage federal employees from committing such constitutional violations and prevent future tragedies as well as to expose sub par treatment of immigrant detainees. See id. at 10?11; Brief of Amicus Curiae National Immigrant Justice Center (“NIJC”) in Support of Respondents at 21.

Moreover, amici consisting of members of Congress including Rep. John Conyers, Jr., Rep. Zoe Lofgren, and Rep. Jerrold Nadler (“Conyers, et al.”), who have a unique interest in the issue presented in this case and can speak directly about congressional intent regarding the FTCA, contend that in enacting § 1346(b), Congress intended for constitutional claims to be allowed against federal employees, outside the FTCA’s purview. See Brief of Amici Curiae Conyers, et al., in Support of Respondents at 16. Conyers, et al., argue that Congress sought to create a uniform rule applicable to all federal employees, including those covered by the immunity statutes; a ruling for Petitioners would thwart this Congressional plan. See id. In support of this, the National Experts on Health Services for Detained Persons (the “National Experts”) also assert that there is no special congressional mandate which immunizes PHS employees from constitutional claims under Bivens. See Brief of Amicus Curiae National Experts on Health Services for Detained Persons in Support of Respondents at 7.

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Analysis

This case focuses on the proper statutory interpretation and application of several separate statutes: 42 U.S.C. § 233(a) and the Federal Tort Claims Act (“FTCA”) codified in 28 U.S.C. §§ 346(b) and 2672. At issue is whether § 233(a), governing Public Health Service (“PHS”) employees, incorporates the FTCA provision allowing a claim to be made against individual federal employees for Constitutional violations, or whether its exclusivity provision provides immunity for PHS personnel for all claims.

Statutory Interpretation

Respondents Yanira Castaneda, the personal representative of the estate of Francisco Castaneda, et al. (“Respondents”), argue that § 233(a) incorporates the FTCA provision that expressly preserves a Bivens remedy. See Brief for Respondent Yanira Castaneda, as Personal Representative of the Estate of Francisco Castaneda, et al., at 21-22. Section 233(a) states “[t]he remedy against the United States provided by sections 1346(b) and 2672 of [the FTCA] . . . for damage or for personal injury, including death, resulting from the performance of medical . . . or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action . . . against the officer or employee . . . .” 42 U.S.C. § 233(a). According to Respondents, the exclusivity provided in § 233 does not include constitutional violations, as the FTCA provides for; § 233 expressly states that it is subject to § 1346(b). See Brief for Respondents at 22. Respondents point out that, therefore, § 1346(b) incorporates 28 U.S.C. § 2679, which declares that the exclusive remedy against the United States that the FTCA provides does not extend to actions brought against federal employees for constitutional violations; this provision allows for individual liability for all federal employees. See Brief for Respondents at 22-23. Therefore, Respondents argue that following the statutory trail shows that a Bivens remedy is available in this case. See id. at 23.

Petitioners, Stephen Gonsalves, a commissioned officer, and Esther Hui, a civilian PHS physician, argue that § 233(a) bars a Bivens remedy for claimants, exclusively allowing suits against the United States. See Brief for Petitioner Commander Stephen Gonsalves at 23; See Brief for Petitioner Esther Hui at 19. To support their claim, Petitioners look to the text of § 233(a), arguing that its plain language provides immunity for PHS officers and employees acting within the scope of their employment: the only remedy for injury is against the United States under the FTCA. See Brief for Petitioner Esther Hui at 22; See Brief for Petitioner Commander Stephen Gonsalves at 26. Petitioners argue that not only is the language unambiguous, the purpose of the statute was “to protect PHS personnel who, in light of their low salaries, could not afford the cost of liability insurance” — therefore predicating against Bivens claims. See Brief for Petitioner Commander Stephen Gonsalves at 28. Petitioners contend that while Congress had taken pains to include an exception for Bivens claims in § 2679(b), it purposely excluded that exception in § 233(a). See id. at 34-37. Petitioners therefore argue that Congress intended to give PHS officers extra protection with § 233(a). See id. at 37.

Petitioners also point to the title of § 233(a), which includes “negligence suits” in addition to “malpractice.” See Brief for Petitioner Esther Hui at 39-40. The lower court interpreted malpractice to mean medical negligence only, but petitioners argue if that were the case there would be no reason to also include the term negligence; thus, malpractice must mean more than just negligence in this case. See id.; see Brief for Petitioner Commander Stephen Gonsalves at 30-31. Petitioners look to definitions of malpractice used by the courts before Congress enacted § 233(a), which support the conclusion that malpractice includes all acts and omissions of a physician or surgeon. See Brief for Petitioner Esther Hui at 39-40 (citing Bakewell v. Kahle, 125 Mont. 89, 93 (1951)).

Respondents counter this argument by considering the entire title of § 233(a) — “Defense of Certain Malpractice and Negligence Suits” — and point out that constitutional tort, which is different from simple malpractice and negligence under Supreme Court precedent, is not included. See Brief for Respondents at 35-36. Furthermore, Respondents argue that the inclusion of the word “certain” in the title indicates that PHS personnel are entitled to immunity from some malpractice and negligence suits, not all. See id. at 37. Therefore, Respondents argue, § 233(a) was not intended to prohibit Bivens remedies. See id. at 38.

Respondents also urge that the statute be considered as a whole, and point to §§ 233(c) and (f) for further proof that § 233(a)’s language allows for Bivens actions against PHS officials. See Brief for Respondents at 25, 28. They point out that § 233(c) does not allow for scope certification, meaning that the federal government cannot substitute in as the defendant and that a federal employee cannot claim immunity until scope certification has taken place. See id. at 25-26. Respondents argue that Bivens actions are exceptions under cases certified by § 2679(d), and therefore defendants cannot seek scope certification under § 2679(d) and at the same time claim immunity from a Bivens claim. See id. at 26-28.

Case Precedent

Respondents point to Supreme Court precedent to support the claim that § 233(a) does not immunize PHS officials from Bivens remedies. See Brief for Respondents at 49. In Carlson v. Green, Respondents claim that the Court found Bureau of Prison (“BOP”) personnel as well as PHS personnel liable for deliberate indifference to a federal prisoner’s serious medical needs, thereby upholding the availability of a Bivens remedy. See id. Respondents contend that the officials in Carlson and the officials in this case perform the same function and that being employed by a different federal agency is irrelevant; thus, immunity should also be barred here. See id. at 51-52. Respondents contend that Congress could not have intended to make PHS officials immune while making BOP officials liable. See id. at 60-61.

Petitioners counter that the language relied on in Carlson is mere dictum, and recent decisions held that Congress precluded a Bivens remedy by stating that the existing statutes provide the exclusive means of redress. See Brief for Petitioner Commander Stephen Gonsalves at 44, 46 (citing Bush v. Lucas, 462 U.S. 367, 373 (1983)). Additionally, Petitioners point out that the Court has stated that a Bivens action is permissible only when there is “no exclusive statutory alternative remedy.” Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see Brief for Petitioner Esther Hui at 14; See Brief for Petitioner Commander Stephen Gonsalves at 46. Petitioners argue that, in this case, the FTCA is an express, exclusive statutory remedy and therefore Carlson and Bivens do not apply. See Brief for Petitioner Commander Stephen Gonsalves at 44-47.

Conclusion

In this case, the Supreme Court will determine whether an individual, whom Public Health Service officials neglected to provide proper medical care while in custody in a state immigration facility, is entitled to a Bivens remedy. The parties offer differing accounts of the statutory language and legislative history of the relevant federal statute, 42 U.S.C. § 233(a). Additionally, the parties each point to court precedents to support their respective positions.

Authors

Prepared by: Catherine Suh and Andrew Kaplan

Edited by: Lara Haddad

Additional Sources

http://www.justice-denied.net/Bivens_Justice.htm

http://biotech.law.lsu.edu/map/ConstitutionalTorts-BivensActions.html

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