Hui v. Castaneda - Oral Argument - March 02, 2010

Hui v. Castaneda

Media for Hui v. Castaneda

Audio Transcription for Opinion Announcement - May 03, 2010 in Hui v. Castaneda

Audio Transcription for Oral Argument - March 02, 2010 in Hui v. Castaneda

John G. Roberts, Jr.:

Well, counsel, we're still here.

[Laughter]

Elaine J. Goldenberg:

I'm very glad, Your Honor.

John G. Roberts, Jr.:

And we'll hear argument in Case 08-1529, Hui v. Castaneda.

Ms. Goldenberg.

Elaine J. Goldenberg:

Mr. Chief Justice, and may it please the Court: In section 233(a), Congress extended an absolute immunity to officers and employees of the Public Health Service.

That provision, reflecting Congress's policy judgment that the immunity was necessary to revitalize the Public Health Service, makes a claim against the United States under the Federal Tort Claims Act the exclusive remedy for injury or death resulting from the performance of medical or related functions and precludes any other civil action or proceeding against the individuals by reason of the same subject matter.

Without grappling with the language of section 233(a), Respondents have tried in a number of different ways to imply a limitation into the test for constitutional claims, but none of those arguments creates any ambiguity in the statute, for three reasons.

First, the Bivens exception, found in the Westfall Act itself, applies only to the immunity set forth in the Westfall Act and says nothing about the scope of the entirely separate and distinct immunity set forth in section 233.

Ruth Bader Ginsburg:

What are the immunities set forth in the Westfall Act?

I thought that they were -- they applied to all Federal employees?

Elaine J. Goldenberg:

Yes, Your Honor, that's correct.

Ruth Bader Ginsburg:

Including the Public Health Service.

Elaine J. Goldenberg:

Yes, that's correct.

Public Health Service employees can take advantage both of the immunities set forth in the Westfall Act and also of the separate, preexisting, more specific immunity that's afforded to them by section 233(a).

And this Court's decision in Smith, I think, made clear that those two immunities can coexist.

There's no conflict between them.

And what this Court said in Smith is that the Westfall Act immunity adds to the prior immunity, and employees can take advantage of both of them.

Sonia Sotomayor:

Counsel, our job is to determine Congress's intent when it passed 233(a).

What we do know is that there was no Bivens immunity at the time; the FTCA had only a limited application under certain driver-related accidents.

So we really don't have anything to tell us, because they didn't even know that there was a constitutional claim that could be raised, what they would have intended or not intended.

And I thought that Justice Ginsburg's point would be that the Westfall Act tells us what they intended, because by its nature it applied to all employees and didn't differentiate among them, and copied 233's immunity, so that one can look at it and say, ah, that speaks of Congress's intent.

Elaine J. Goldenberg:

Well, certainly it's true that when Congress enacted the Westfall Act it could have broadly said, for instance, notwithstanding any other provision of law, no Federal employee shall assert a statutory immunity to constitutional claims.

But it didn't do that.

It did something much more narrow than that, which is that what it said was in section 2679(b)(2), paragraph (1) -- the immunity for Federal employees that was just set forth shall not apply to constitutional claims.

And that's--

Sonia Sotomayor:

Is there any other Act besides 233(a) that is similar--

Elaine J. Goldenberg:

--Yes.

Sonia Sotomayor:

--that gives separate immunity?

Which are those?