In a landmark holding released in May, the U.S. Supreme Court held in Hui v. Castaneda , 2010 WL 1740524 (U.S.), that the Public Health Service Act (PHSA), 42 U.S.C.A. § 233(a), precludes Bivens-type actions against U.S. Public Health Service (PHS) personnel for constitutional violations arising out of the performance of their official duties.
A Bivens action is one seeking damages against a federal agent for violation of a constitutional right. The 1971 decision in Bivens v. Six Unknown Named Agents held that such plaintiffs have a private right of action for damages against offending federal agents if no other federal remedy is available and Congress has not expressly restricted the right to recovery in the specific situation.
The Castaneda decision leaves the survivors of immigration detainee Francisco Castaneda without recourse against the medical providers who refused to offer him proper care. The claimants’ sole available remedy has now been declared to be through a claim against the United States in accordance with the Federal Tort Claims Act (FTCA).
A Serious Lapse
In 2006, Francisco Castaneda was detained by U.S. Immigration and Customs Enforcement for suspected immigration violations and was taken to the San Diego Correctional Facility (SDCF). When he arrived there, he had an unusual raised lesion on his penis, which he immediately brought to the attention of the doctor in charge of his care, Dr. Esther Hui, a civilian PHS employee assigned through the Division of Immigration Health Services (DIHS). Commander Stephen Gonsalves, a commissioned PHS officer, was a Health Services Administrator at SDCF during the relevant period. For nearly a year, Castaneda tried to get a biopsy to determine the cause of the lesion, but despite the advice of a doctor and three physician assistants urging a biopsy, Hui and Gonsalves repeatedly stood in the way. They said that a biopsy was an “elective procedure” that Castaneda was not entitled to undergo. It made no difference that the lesion was growing, that it was bleeding or that it interfered with Castaneda’s ability to urinate and to sleep.
After a fourth specialist recommended a biopsy in January 2007, the procedure was finally authorized. However, instead of getting treatment, Castaneda was simply released from custody on Feb. 5. A week later, biopsy results showed that Castaneda had advanced penile cancer, requiring the removal of his penis the day after he received the biopsy results. Castaneda also underwent chemotherapy. These treatments could not save him, however, and Castaneda died in February 2008.
Claims Against Government
Castaneda’s family brought claims against the government under the FTCA, as well as Bivens claims against Hui and Gonsalves for violation of Castaneda’s constitutional rights under the Fifth, Eighth and Fourteenth Amendments. Hui and Gonsalves moved to dismiss, asserting that 42 U.S.C. § 233(a) offered them absolute immunity from suit by making the exclusive remedy in the case of an FTCA claim against the United States.
Section 233(a) provides, in pertinent part, “[t]he remedy against the United States provided by §§ 1346(b) and 2672 of title 28 for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, 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 or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.”
The district court denied the motions to dismiss, concluding that the text and history of Section 233(a) showed Congress intended to preserve Bivens actions. Petitioners Hui and Gonsalves filed an interlocutory appeal. The 9th U.S. circuit Court of Appeals affirmed.
In its decision, the 9th Circuit cited Carlson v. Green for the proposition that a Bivens remedy is precluded only when an alternative remedy is both expressly declared to be a substitute and can be viewed as equally effective, or when special factors militate against direct recovery.
Taking these factors into account, the court found that a Bivens remedy was not precluded because the remedy available under the FTCA fell short. A Bivens remedy was superior because under the FTCA: damages cannot be awarded against an individual; punitive damages are unavailable; a jury trial is precluded; and uniform federal laws, rather than state law, determine liability. The 9th Circuit looked at the text and history of Section 233(a) and noted that it does not mention the Constitution or recovery thereunder. The court also found it significant that Section 233(a) was enacted prior to the Supreme Court’s decision in Bivens.
The Supreme Court Reverses
The Supreme Court began its explanation for its reversal of the lower courts’ rulings by cutting right to the chase: “Our inquiry in this case begins and ends with the text of Section 233(a),” stated the court.
It went on to say that Section 233(a) grants “absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct. By its terms, Section 233(a) limits recovery for such conduct to suits against the United States. The breadth of the words ‘exclusive’ and ‘any’ supports this reading, as does the provision’s inclusive reference to all civil proceedings arising out of ‘the same subjectmatter.’ We have previously cited Section 233(a) to support the contention that ‘Congress follows the practice of explicitly stating when it means to make FTCA an exclusive remedy.’ Carlson, 446 U.S., at 20, 100 S.Ct. 1468. The meaning of Section 233(a) has become no less explicit since we last made that observation.”
The court was not impressed with the respondents’ argument that, because Bivens was decided after Section 233(a) was enacted, a Bivens claim should lie.
“Our reading of Section 233(a)’s text is not undermined by the fact that the provision preceded our decision in Bivens. Contrary to the view of the Court of Appeals, that a Bivens remedy had not yet been recognized when Section 233(a) was enacted, does not support the conclusion that Congress, in making the remedy provided by the FTCA exclusive of any other civil action,’ did not mean what it said. Language that broad easily accommodates both known and unknown causes of action,” stated the court.
The court was also unpersuaded by the respondents’ and the court of appeals’ assertions that the teachings of Carlson v. Green applied to the Castaneda case. In declaring Carlson inapposite, the court stated, “There are two separate inquiries involved in determining whether a Bivens action may proceed against a federal agent: whether the agent is amenable to suit, and whether a damages remedy is available for a particular constitutional violation absent authorization by Congress.” Here, agents Hui and Gonsalves were immune from suit in accordance with the terms of Section 233(a).
The federal government has already conceded that Castaneda received substandard care, and that he probably died because of it. Still, the letter of the law limits his heirs’ ability to get just compensation. Perhaps more importantly, the law as interpreted by the Supreme Court in Hui v. Castaneda does nothing to deter others in the Public Health Service from repeating the wrongs of the medical personnel in charge of Castaneda’s care.
Francisco Castaneda’s story, along with several similarly horrifying stories of other immigrants denied adequate medical care, have become rallying points for immigration reform activists who argue that the immigration enforcement system is broken. The federal government often leaves detainees in the hands of little-supervised contract caretakers who appear more than willing to cut corners when it comes to housing, feeding and providing medical care to them.
To address the problem, a bill ( S. 1550 ) was introduced in the U.S. Senate in 2009 titled the “Safe Treatment, Avoiding Needless Deaths, and Abuse Reduction in the Detention System Act,” also known as the Strong STANDARDS Act. Among other things, it directs the Secretary of Homeland Security to ensure that all immigration detainees are treated humanely and given proper medical care. The bill and its congressional counterpart, H.R. 4470 , have been referred to committee.
Janice G. Inman is an attorney and the editor-in-chief of Medical Malpractice Law & Strategy, an affiliate of The Legal. This article originally appeared in the New Jersey Law Journal. •