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U.S. Supreme Court: No Bivens Remedy Available Against PHS Staff

On May 3, 2010, the U.S. Supreme Court held that employees of the U.S. Public Health Service (PHS) may not be sued for constitutional violations under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

While detained by Immigration and Customs Enforcement (ICE), Francisco Castaneda requested medical treatment for an “irregular, raised lesion” on his penis that was growing in size, bleeding and causing pain. Despite being told by three specialists that Castaneda needed a biopsy of the lesion, Esther Hui, a PHS physician, disregarded those recommendations. Castaneda was instead given ibuprofen and antibiotics, plus an extra set of boxer shorts.

In January 2007, Castaneda was finally approved for a biopsy after a fourth specialist recommended the procedure. Instead of performing the biopsy, however, ICE released Castaneda from custody. A week later he had the biopsy at a local hospital and the lesion was determined to be cancerous. Castaneda had his penis amputated and underwent chemotherapy, but later died after treatment proved unsuccessful.

Castaneda’s estate filed suit against the United States under the Federal Tort Claims Act (FTCA), claiming medical negligence. His estate also sued Dr. Hui and other PHS staff claiming constitutional violations under Bivens.

The district court and the U.S. Court of Appeals for the Ninth Circuit held that Castaneda’s estate could proceed against the PHS defendants in their individual capacities under Bivens notwithstanding 42 U.S.C. § 233(a), which seemed to make the FTCA the exclusive remedy for acts or omissions by PHS officials. [See: PLN, April 2010, p.46; Sept. 2008, p.32].

According to the Ninth Circuit, a Bivens remedy is rendered unavailable “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,” citing Carlson v. Green, 446 U.S. 14 (1980). Because none of those factors existed with respect to § 233(a), the appellate court concluded that Castaneda’s estate could proceed under Bivens.

The Supreme Court granted certiorari and reversed. While the Ninth Circuit had relied heavily on Carlson to support its decision, the Supreme Court considered Carlson “inapposite to the issue in th[e] case.” To invoke a Bivens action, the Court explained, the defendants must first be amenable to suit. In Carlson, amenability was not an issue as the defendants did not claim immunity. In Castaneda’s case, however, the defendants did invoke immunity. Thus, the Court wrote, “the question in this case is answered solely by reference to whether [§ 233(a)] gives [the defendants] the immunity they claim.”

Looking at the text of § 233(a), the Supreme Court concluded that the PHS defendants were entitled to immunity. “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,” the Court wrote. Further, it was irrelevant that § 233(a) was enacted before Bivens was decided, as the language of § 233(a) was written broadly enough to “accommodate[] both known and unknown causes of action.”

The Supreme Court acknowledged that its decision amounted to “special immunity” for PHS employees given that other federal officials are subject to Bivens; nevertheless, the Court emphasized that it was “required [] to read the statute according to its terms.”

The judgment of the Ninth Circuit was accordingly reversed and the case remanded for further proceedings. The impact of this decision primarily will be felt in the federal prison system, as most Bureau of Prisons facilities utilize PHS staff. See: Hui v. Castaneda, 130 S.Ct. 1845 (2010).

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Related legal case

Hui v. Castaneda