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

Media for Hui v. Castaneda

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

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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?

Elaine J. Goldenberg:

There are a number of them, Your Honor.

Most of them apply to Federal medical workers, although not all of them.

There is 10 U.S.C. section 1089, the Gonzalez Act, which is discussed in our brief and in the government’s brief, which applies to Army doctors.

There are statutes applying to NASA doctors, to Veterans Administration doctors, to certain medical volunteers.

So there are a number of these statutes passed over a period of several decades.

But in–

Anthony M. Kennedy:

But it seems to me that, quite apart from the Westfall Act, there’s a more — more basic answer that you would make to Justice Sotomayor’s question.

And that is, because the nature of immunity clauses are to make the employees secure against unforeseen causes of action as well as foreseen.

I think that’s a principled answer you could make.

If I made that answer, do you have authority I could cite for that proposition?

Elaine J. Goldenberg:

–Well, I think that this Court has, you know, broadly speaking, in talking about judicially created immunities — that immunity is for hard cases as well as easy cases.

And the Van de Kamp decision that this Court recently issued with respect to judicial immunity I think says–

Anthony M. Kennedy:

Okay.

Elaine J. Goldenberg:

–something along those lines.

But I think it’s true, certainly, that — it’s true that Congress, when it passed section 233, didn’t know for sure that there was going to be a Bivens cause of action that was going to be allowed.

But it spoke very broadly.

It said

“any other civil action or proceeding. “

And when it did that, it surely meant civil actions or proceedings that were created by the courts at some later point in time as well as those that existed at the time.

Anthony M. Kennedy:

If we limit it, then Congress would have to reenact a statute every time there was some new cause of action?

Elaine J. Goldenberg:

Exactly, Your Honor.

And I think the problem with the interpretation that makes the interpretation of the statute depend on the timing of the Bivens decision is pointed up by two different statutory provisions and the odd results that you would have.

One is that the Gonzalez Act, which I referred to earlier — it’s 10 U.S.C. section 1089 — was enacted in 1976, it has immunity-conferring language that’s extremely similar to the immunity-conferring language of section 233(a).

In fact, we know that when Congress enacted the Gonzalez Act, it looked at and thought about section 233(a), and yet if it mattered whether Bivens had yet been decided, the Gonzalez Act would bar Bivens claims, but 233(a) wouldn’t, even though you can’t make that kind of distinction based on their text.

Antonin Scalia:

Of course, I don’t look to see what Congress intended.

I look to see what the statute says.

I don’t know that we — we — we psychoanalyze the text of a statute on the basis of what the Congress at that time knew.

The text says what it says.

Elaine J. Goldenberg:

Yes, Your Honor, I agree.

And the text here is very broad and very clear that it’s any other civil action or proceeding that–

Antonin Scalia:

That’s what it says.

Elaine J. Goldenberg:

–that results from the same subject matter.

And I think one thing that’s important is that “subject matter” here clearly means the same set of facts or the same set of circumstances.

So that, it — it’s not the case that you only get immunity where your cause of action is somehow similar to the cause of action you have under the FTCA.

If you — you get immunity if you have any claim against the individuals that comes out of the — the same set of facts, even if it were true that there was some requirement of an FTCA remedy, which we don’t believe there is.

And what’s absolutely clear here as well is that Respondents do have an FTCA remedy against the United States.

They have brought an FTCA claim against the United States.

The United States has admitted liability on that claim.

That’s found at page 328 of the Joint Appendix.

And so the question now is, what damages will the Respondents recover from the United States?

And — and in that setting, most certainly the claim against the individuals is barred by section 233(a).

John Paul Stevens:

Would you comment on–

Ruth Bader Ginsburg:

And that’s a — there’s a ceiling, because the Tort Claims Act refers to the law of the place where the act or omission occurred.

In this case it’s California?

Elaine J. Goldenberg:

Well, Your Honor, California law is what’s been discussed in the briefs.

I understand that it’s possible that Respondents might argue that some of the acts or omissions here took place in the District of Columbia, because that’s the place where some of the decisions were made about the treatment authorization requests.

But California law is what has been asserted so far in the case.

That’s true.

Ruth Bader Ginsburg:

Which would put a lid on the damages, since this is a death case, of 250,000?

Elaine J. Goldenberg:

Not exactly, Your Honor.

There is no limit whatsoever on the economic damages in a case arising out of professional negligence.

There is, under California law, a $250,000 cap on noneconomic damages.

As we have said in our briefs, we think that in this case, where Respondents have argued intentional wrongdoing by the United States, for which they can recover under the FTCA, if they can prove that something more than negligence was at issue, then it’s possible under California law, although California law is not entirely clear, that they could actually exceed that $250,000 cap for noneconomic damages.

John Paul Stevens:

–May I ask you to comment on the fact that, in the Carlson case, apparently the assistant surgeon general was, in fact, a defendant, and the government failed to make this defense?

Elaine J. Goldenberg:

Your Honor, I’m not certain why the defense wasn’t raised in the case.

John Paul Stevens:

But if you’re right, they should have.

Elaine J. Goldenberg:

Well, not necessarily, because there may be factual issues that — that we’re not now aware of.

In other words, it may be that the government concluded that, despite what was alleged in the complaint, that when that particular individual took the acts complained of, he wasn’t somehow wearing his PHS hat, he was operating in some other capacity.

So — but that’s obviously just speculation.

And it’s — it is not clear why that defense wasn’t raised.

Elaine J. Goldenberg:

What is clear is that it was not raised and, not only that, but in the court of appeals and in this Court, there is no reference made to the fact that he’s in the Public Health Service.

John Paul Stevens:

Now, that’s kind of interesting that apparently the government was not aware of the breadth of the position they’re — you’re now taking.

Elaine J. Goldenberg:

Well, I’m not sure that’s necessarily the conclusion I would draw.

As I say, there may be factual reasons why it wasn’t raised.

There may be strategic reasons why it wasn’t raised.

It’s hard to speculate on that so long after the — after the fact.

But what is clear from Carlson is that the way that section 233(a) did arise in that case is that the Court used it as a specific example to contrast with the FTCA itself, and said that section 233 was a place where Congress had made known explicitly its intent that the FTCA be the exclusive remedy and that other remedies be precluded.

That’s the way that 233(a) was argued in the briefs in that case, and that’s how the Court used it.

And that’s obviously extremely supportive of the Petitioners’ plea for immunity here.

This Court has already essentially recognized in Carlson, in reasoning in support of its holding, that that is the role that 233(a) plays, and the Court must have been talking about barring Bivens claims because that’s what Carlson was about.

So that’s the significance of 233(a) in that case.

The Respondents also — on a subject we haven’t touched on yet, I think, look at the title of section 233(a) and some of its other subsections, and there I think it’s clear that the title can’t vary the clear statutory text in any way.

Even if the title were relevant here, it talks about negligence and malpractice.

And we’ve cited in our reply brief, at pages 18 to 19, the authorities showing that when the statute was enacted in 1970, malpractice was thought to sweep very broadly to cover any bad acts, any malpractice, and so it doesn’t operate — the title here can’t operate as a limitation on the scope of this provision.

With respect to the history, the one other thing that I wanted to point out that I didn’t get to in my answer before is another odd result that you would have, if you looked at when Bivens was decided and made that your deciding factor, is that the FTCA’s judgment bar, at 28 U.S.C. section 2676, which was enacted in 1948, which says that when you take a claim against the United States under the FTCA all the way to judgment, you are barred from raising any other civil action or proceeding by reason of the same subject matter.

So very similar language to what we have here.

That wouldn’t bar Bivens claims, even though every court of appeals to have looked at the issue has said that it does cover Bivens claims in a different sense.

Anthony M. Kennedy:

Well, that would bar a later Bivens claim.

I assume you could bring a Bivens action first, and the bar provision would not apply, assuming you can bring the Bivens claim.

Elaine J. Goldenberg:

Yes, I think that’s right.

But the — all I’m trying to say is that it’s the “any other civil action or”–

Anthony M. Kennedy:

Yes.

Elaine J. Goldenberg:

–proceedings

“language in the judgment bar. “

“If you looked at whether Bivens had been decided yet, it wouldn’t cover Bivens because the statute was enacted prior to the time that Bivens was decided. “

“It was enacted in 1948. “

“So it’s not — it doesn’t make sense to make your statutory interpretation, your interpretation of those words, hinge on the fact that Bivens had or hadn’t been decided yet. “

“If there are no further questions, I’d like to reserve my remaining time for rebuttal. “

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Shah.

Pratik A. Shah:

Mr. Chief Justice, and may it please the Court: By its plain terms, section 233(a) precludes any civil action against officers and employees of the Public Health Service arising out of performance of their medical duties.

Instead, it makes an action against the United States under the Federal Tort Claims Act the exclusive remedy for injury arising out of PHS-provided care.

Unlike the Westfall Act, section 233 contains no carve-out for constitutional claims, nor is there any textual basis for which to imply one.

Accordingly, this Court should reverse the Ninth Circuit’s decision allowing Respondents’ Bivens claims against the individual Petitioners on top of their FTCA claims against the United States.

Now, even assuming Congress did not specifically have Bivens claims in mind at the time that they enacted this statute, that’s no reason to limit the plain terms of section 233(a).

First, Justice Kennedy, going to your question about whether there’s authority for that proposition that when Congress doesn’t specifically anticipate a certain set of facts yet the plain terms control, that that is the correct result, this Court has stated both in the RICO context as well as in other contexts that the fact that Congress doesn’t specifically contemplate application of the statute to particular circumstances simply demonstrates the breadth of the statute and not any ambiguity.

Those statements are set forth on page 15 of our brief, Sedima, Yeskey, and others.

The second point I would make is the best indication of Congress’s broad intent is simply the plain terms of the statute.

Congress could have enacted a statute that only provided immunity for, say, negligent performance of medical duties.

It included no such limitation in 233(a).

It could have made the FTCA remedy exclusive of, say, only common law causes of action or State law causes of action, or even existing causes of action.

It did not do that.

It said it is the exclusive remedy for any other civil action by reason of the same subject matter.

Congress could–

Ruth Bader Ginsburg:

Mr. Shah, is that — is that the same — in all the statutes that Carlson cites on page 20, when they say that Congress follows the practice of explicitly stating what it means to make the FTCA an exclusive remedy, there’s this — the Gonzalez Act and there’s 233(a), and then there is the swine flu.

Are they all — are all those provisions, provisions like 233(a), that say “any civil action”?

Pratik A. Shah:

–Yes, Your Honor, in terms of that latter phrasing

“exclusive of any other civil action or proceeding. “

For example, the Gonzalez Act, which is reproduced in the gray brief on page 1a of our — of the government’s appendix, it uses very similar language.

It says: The FTCA remedy shall be exclusive of any other civil action or proceeding by reason of the same subject matter.

That’s identical language to that used in 233(a).

Now, there is a way in which 233(a) is even broader than any of those other statutes in its description of what type of performance of medical duties is covered.

There, there is no modifier of negligence or wrongful act or omission.

It simply says: Any performance of medical duties is covered.

In the Gonzalez Act, which we would submit has as quite broad language and should have the same effect, they at least have a qualifier of negligent or wrongful act or omission.

Not that that should create a change in result, but it just goes to show the incredibly broad language that Congress used to show — that Congress used in 233(a).

And I think on the Gonzalez Act point — and Justice Sotomayor, I think this goes to your question about whether there are other statutes — even though that Congress may not have contemplated Bivens at the time, the Gonzalez Act was passed in 1976, 5 years after Bivens had decided, and yet Congress used the identical language or nearly identical language as present in 233(a) in enacting the Gonzalez Act.

Presumably, Congress was aware of the potential for Bivens liability at the time, yet they chose to use the same categorical text.

And in the legislative history of the Gonzalez Act, they say they used that text for the specific purpose of ensuring total financial immunity — immunity from total financial liability for DOD and armed forces medical personnel.

Sonia Sotomayor:

Can you tell me how many PHS personnel work in settings outside custodial settings?

Pratik A. Shah:

Outside which?

Sonia Sotomayor:

Custodial settings.

Pratik A. Shah:

Well, Your Honor, there’s 6,000 — approximately 6,000 commissioned officers.

Of those, slightly more than 1,000 of the commissioned PHS officers work in either the Bureau of Prisons or in ICE detention facilities.

So the remaining 5,000 of the commissioned officers may not work in what you would call a strictly custodial context.

A bulk — the majority of them work for the Indian Health Service, and that’s true for both employees and the–

Sonia Sotomayor:

I’m sorry.

For the Indian–

Pratik A. Shah:

–For the Indian Health Service.

Sonia Sotomayor:

–And is there a reason Congress would want to immunize PHS personnel against Bivens claims in a custodial setting, but not immunize Bureau of Prison personnel?

Pratik A. Shah:

Well, Your Honor, I think they would want to immunize Bureau of Prison personnel.

And, in fact, that’s where a majority of these types of claims come up.

That, of course, is another custodial setting, and — and I think Congress would have been aware–

Sonia Sotomayor:

But not every doctor — if they come under the FTCA, they — their — constitutional claims are not immunized against them–

Pratik A. Shah:

–Oh, I see.

Sonia Sotomayor:

–unless they are PHS personnel.

Pratik A. Shah:

Right.

You’re right.

If they were — if they were a BOP employee–

Sonia Sotomayor:

Right.

Pratik A. Shah:

–as opposed to PHS personnel, then you’re right, they would fall under the Westfall Act, and there would be the carve-out for constitutional claim.

Now, what we do know is that Congress enacted this special protection for Public Health Service personnel and singled them out at the Surgeon General’s request in 1970.

And I think it’s important to remember, in 1970 — this is pre-Westfall Act — it was not at all clear that Federal medical personnel were immune even from common law negligence, for example.

And so even from that point, putting Bivens liability aside, Congress chose to accord special protection to PHS personnel above and beyond that entitled to those who they were working with side by side, say in the Bureau of Prisons or in detention–

Samuel A. Alito, Jr.:

Are they paid less than other — than other Federal employees who perform similar functions?

And what do — what do physicians who are not — were not employees of the Public Health Service do about liability for Bivens actions?

Are they responsible for getting their own malpractice insurance?

Pratik A. Shah:

–Well — well, Your Honor, in terms of the — in terms of the ordinary claims, the common law claims, of course, that would be covered by the Westfall Act.

In terms of Bivens, in terms of insurance against Bivens claims in particular, my understanding — and this is anecdotal — is that most — most of the medical personnel in the Bureau of Prisons do not have any other protection beyond that that’s provided by the Westfall Act.

That is, they don’t have separate policies.

Pratik A. Shah:

There is — at least according to the citation in Respondents’ brief about a Web site that shows that you can get Bivens insurance.

It’s not clear to me whether that’s available to Federal — Federal medical personnel, at least in the amounts of insurance that might be necessary to adequately protect them–

Antonin Scalia:

Of course, we’re — you know, we’re talking here as though Congress is a perpetual unchanging institution.

Why would it have done this for Public Health Service employees and not have done this for Bureau?

It wasn’t the same Congress that passed those two Acts.

The one may have been a stingier Congress than the other, or there — there may have been more lobbying by one of the other groups in one case.

I don’t see any reason why we have to philosophically reconcile the — the granting of — of greater immunity to Public Health Service employees.

Pratik A. Shah:

–Justice Scalia, I completely agree.

I think it’s correct that the important fact is the fact that Congress accorded them special protection.

Again, this was — this was at the request, the specific request of the Surgeon General, and they did this to help revitalize the Public Health Service.

Now, I don’t think that it’s — that the Public Health Service — it’s anomalous that they get this protection.

I think they’re in many ways similarly situated to medical personnel who have served for DOD in the armed forces.

Like DOD medical personnel, PHS officers can be assigned to very difficult situations and settings, sometimes in armed conflict, other custodial settings, and they can be ordered to perform certain medical conditions.

In the Gonzalez Act legislative history, Congress says that that was a reason — an additional reason as to why they wanted to accord immunity.

And I think PHS personnel are similarly situated.

If this Court were looking for a reason, the fact is they were accorded the same immunity, and that’s the dispositive factor.

Antonin Scalia:

Just as a matter of curiosity, do all of these immunity provisions come out of the same committee?

Or can one assume that the Public Health Service may have come out of one committee of Congress, the Bureau of Prisons may have come out of another committee of Congress, the DOD may have come out of a third committee of Congress?

Pratik A. Shah:

Right.

I don’t know if they all came out of the same committee, but these certainly span a wide spectrum of years, all the way from the 1960s to — to the late 1970s, in terms of when these various immunity provisions were enacted.

Some of them happened at the same time, like, I believe, the provision for NASA personnel was added at the same time the Gonzalez Act was passed.

Samuel A. Alito, Jr.:

If section 2679(b)(2), instead of saying paragraph (1) does not extend nor apply, had said the remedy against the United States provided by sections 1346(b), et cetera, and repeated that language from (b)(1), and then said:

“Is not the exclusive remedy in any civil action against an employee of the government. “

and continued with subsection (2), then the result here would be different, wouldn’t it?

Pratik A. Shah:

Your Honor, it may be a closer case but I don’t think that the result would be different, and here’s why: If you look at the text of 233(a) — and this is on the very last page of the — of the government’s brief — it does refer to the FTCA in terms of the remedy that a — that a plaintiff should seek, but it’s not — it does not look to the FTCA to make that remedy exclusive.

Instead, it provides independent language, independent of the FTCA, to make the remedy exclusive.

It says,

“The remedy against the United States. “

under the FTCA — that’s what it references —

“for damage for personal injury including death resulting from. “

Pratik A. Shah:

medical performance — and then it has its own language —

“shall be exclusive of any other civil action or proceeding by reason of the same subject matter. “

It does not reference the FTCA in that latter clause, and it’s that latter clause that makes the remedy exclusive.

So, regardless of the language of the Westfall Act, I think — I don’t think it would make a difference to the result if Congress had used the wording that you suggest, Justice Alito.

The one — the one final point I’d like to make is I think it bears emphasizing that this is not a case where there is no other relief than a Bivens remedy available.

The FTCA remedy is not only available generally, but the United States has already admitted liability on Respondents’ medical negligence claim in this case.

The only difference from Respondents’ amount — from Respondents’ perspective now is the amount of damages that are recoverable, and we would submit–

Ruth Bader Ginsburg:

Could the — could the plaintiff contest the certification that this was within the scope — and say it was so egregious, it was outside the scope, and, therefore, it doesn’t come — come within 233(a) or anything else, and so we have a straight claim against the defendants?

Pratik A. Shah:

–To my knowledge, plaintiffs have not made that argument in this case, that they were not acting within the scope.

Ruth Bader Ginsburg:

Or they would lose their argument against the — I mean, they would lose their claim against the government if they were taking that position?

Pratik A. Shah:

They would lose their FTCA claim against the government, then, Your Honor.

If there are no further questions.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Shah.

Mr. Doyle.

Conal Doyle:

Mr. Chief Justice, and may it please the Court: Section 233 does not bar Bivens claims here for two principal reasons.

First, 233 does not abrogate a constitutional cause of action because it cannot satisfy Carlson’s explicit declaration test, which is a type of clear statement rule.

Ruth Bader Ginsburg:

Now, that’s quite a surprising statement for you to make, when the very first statute that Carlson mentions is 233(a).

Conal Doyle:

Your Honor, I believe you’re referring to the dicta in Carlson on page 20.

Ruth Bader Ginsburg:

Yes.

Conal Doyle:

And it’s interesting to note how that issue was raised.

In the briefs, it wasn’t raised arguing that 233(a) bars Bivens claims; the government didn’t make that argument.

And, in fact, it was raised in the Respondents’ cert petition or brief in opposition for the proposition that — that the language of that statute actually allowed a Bivens claim because it didn’t preclude it.

And in — in response the government actually argued that because Bivens hadn’t been decided in — in 1970, that it could not have possibly preserved Bivens claims.

So it was actually the opposite issue that was — that was addressed in Carlson–

Ruth Bader Ginsburg:

Well, it certainly doesn’t get that out of the way.

It’s put on page 20, because one of the reasons why Carlson enables — allows the Bivens Act is that it doesn’t contain language and the — and it — it seems to me that this — that this paragraph is contrasting statutes with Carlson, because in Carlson there is no — there is no other statute.

Conal Doyle:

–Justice Ginsburg, if I may reply, I believe that that’s not the proper way to read that dicta for two reasons.

First, I think Justice Stevens mentioned the Assistant Surgeon General of the United States was actually a defendant in the case, and so although this 233(a) immunity wasn’t — wasn’t decided in Carlson, certainly the Court was aware that a — that a Public Health Service defendant was in the case, and they wouldn’t have permitted an action to move forward against that defendant had they believed that 233 barred Bivens.

And, second, it — it specially characterizes the explicit declaration as applying to malpractice, not Bivens claims.

Conal Doyle:

And other — for example, another statute in the category there was the Federal Drivers Act, and certainly it’s hard to imagine how a Federal driver could be liable under — under Bivens.

And so I think a better reading of that dicta is that the Court is just saying: Here’s an example; these statutes show that when Congress makes an explicit declaration, but the issue is explicit as to what?

And it’s clear I think from reading that dicta based on the existence of the Surgeon General in the case and the fact that the dicta was qualified, that it didn’t apply to Bivens.

But moving back to the Carlson test, 233 can’t satisfy the test because Carlson never even — or Congress never considered whether the FTCA was a substitute for Bivens in 1970.

And this point is underscored by the fact that the statute was enacted before Bivens and that the cause of action at issue here wasn’t recognized until 10 years later in Carlson.

And, second, when Congress did finally consider for the first time whether the FTCA was an adequate substitute for Bivens in 1988, it expressly preserved, rather than barred, Bivens claims in the Westfall Act.

And the Westfall Act was a comprehensive statute that was intended to provide an overhaul of personal immunity at the request of this Court in Westfall v. Erwin, and it applied to all Federal employees, including members of the Public Health Service.

And that was the holding of this Court in Smith.

And Petitioners’ reading here would actually require this Court to write in an implied exception to the Westfall Act that doesn’t exist, that would exempt out Public Health Service personnel from the explicit carve-out of Bivens.

Moreover, the Petitioners’ reading here–

Antonin Scalia:

You claim the Westfall Act implicitly repealed 233(a)?

Is that what you say?

Conal Doyle:

–No, Your Honor, there’s no implicit repeal here, although we can–

Antonin Scalia:

Well, that provision says that it’s exclusive, and you’re saying the Westfall Act says it’s not exclusive.

Conal Doyle:

–Your Honor, there’s no implicit repeal here for the — because 233(a) still has independent work to do.

But we do concede that under our reading, there would be no — it wouldn’t really do any more work for Public Health Service employees, because they have a broader protection under the Westfall Act, because it applies to any wrongful act or omission.

Antonin Scalia:

But it isn’t just made superfluous.

It is repealed.

The provision of it that says “it shall be exclusive” is repealed.

Conal Doyle:

The provision–

Antonin Scalia:

Implicitly, because it’s not specifically referred to.

Conal Doyle:

–Well, there were no — there would be no repeal because there are a number of other provisions within section 233 itself that it’s relevant to.

And so the Public Health Service Act–

Ruth Bader Ginsburg:

That’s just (a).

We’re just talking about (a).

Conal Doyle:

–Yes, but these other provisions refer back to (a).

And if I could–

Stephen G. Breyer:

I don’t understand your Westfall Act argument.

I must be missing something.

My understanding is, many years ago, Congress passes a statute and says: Give absolute immunity from Bivens actions.

Stephen G. Breyer:

Sue the government; don’t sue the employee.

It says that, basically.

A long time ago.

Then, sometime after, Congress passes another statute, and in paragraph (a) of that statute, it says: An even larger group of people, just sue the government.

And then it says: As to this larger group of people, paragraph (1) of this statute doesn’t apply to Bivens actions.

So, what does that got to do with this earlier statute?

Doesn’t it refer to it.

I don’t — in other words, I understand your Carlson argument.

I got that one, but I don’t understand this argument if I have the statutes right.

Conal Doyle:

–Well, Your Honor, I think that — and I don’t mean to repeat myself, but to answer that question–

Stephen G. Breyer:

Well, is there an answer to the question?

Because that would be important.

Conal Doyle:

–I believe there is.

But I think that the fundamental issue you have to look at, Your Honor, is whether, in 1970, Congress intended to abrogate a constitutional cause of action.

And in this Court’s line of clear statements–

Stephen G. Breyer:

That’s your Carlson argument.

I got that one.

Conal Doyle:

–Okay.

Stephen G. Breyer:

I understand that one.

The one I don’t understand is what’s the relation of the Westfall Act to this argument?

Conal Doyle:

There’s — there’s two relationships between the Westfall Act and the Public Health Service Act.

First, the Westfall Act simply applies on its face to all government employees.

This Court has held that, and so–

Stephen G. Breyer:

Yes, right.

They give the government employees the same kind of immunity that — a little more limited, and that’s in paragraph (1).

And then paragraph (2) says: Paragraph (1) doesn’t apply to Bivens actions.

It doesn’t say anything about the earlier statute.

It applies to a different group of people.

It has all kinds of requirements, nothing involved with 233.

Okay.

Stephen G. Breyer:

So, what is it to do with this case?

Now, what I’m thinking now from your hesitation is it has nothing to do with the case; it’s the Carlson thing that is the important thing.

Now, you tell me why I’m wrong.

Conal Doyle:

–Justice Breyer, if I could answer.

This Court, in Smith, held that the immunity conferred by section (1) applies to all Federal employees.

And you have to read (1) and (2) together.

I mean, you can’t divorce them, because section (1) grants immunity, but subsection (2) affects it and — and helps define it by saying that–

Stephen G. Breyer:

You’re talking about the Westfall Act.

Absolutely right.

Conal Doyle:

–Yes.

And that said–

Stephen G. Breyer:

I just say, what does the Act have to do with this older Act?

Conal Doyle:

–Well, it isn’t — the older Act refers to the Federal Tort Claims Act as providing the exclusive remedy in this case.

And the FTCA is the only remedial scheme in the case.

So, in other words, 233 doesn’t set forth within it different remedies that prospective plaintiffs can get against the Public Health Services.

It decided to define it by referring to the–

FTCA.

And when you go to the–

Stephen G. Breyer:

Westfall — Westfall Act is not — is not the FTCA, is it?

Conal Doyle:

–It is.

Right.

Stephen G. Breyer:

Oh, it is the — in other words, you think — I thought the FTCA Act is an Act that gives you action against the government.

Conal Doyle:

The Westfall Act is just simply an amendment to the FTCA.

Stephen G. Breyer:

So it says: This Act is the exclusive remedy — the FTCA is an exclusive remedy for all employees, but this provision which gives us an exception does not give you the exception, does not make it exclusive for Bivens actions.

Okay.

You go ahead.

You explain it to me.

I don’t want to keep repeating my skepticism, I want to listen.

[Laughter]

Conal Doyle:

Okay.

Conal Doyle:

Well, the first clause of section 233(a) states that — that the remedy against the United States provided by 1346(b) is remedy available.

And so you go to 1346(b), and Congress defined the 1346(b) — I believe it’s on page 5a of the — of our appendix — and says that — that the remedy is subject to the entire provisions of the FTCA.

And so you have to look to the entire provisions of the FTCA to determine what the remedy is, because–

Ruth Bader Ginsburg:

What — what says 233(a), where does that say anything other than — I mean, it reads like it’s immunity from any civil action.

That’s — those are the words I think that you have to overcome.

It says: Plaintiff has a substitute remedy against the United States under the Federal Tort Claims Act, and the employee is immune from any civil action.

And then you say, but any civil action doesn’t include Bivens actions.

And you must be saying that the later Act shrinks the former Act.

Conal Doyle:

–The later Act amended the former Act; that’s correct, Your Honor.

Ruth Bader Ginsburg:

It amended 233(a)–

Conal Doyle:

It — it did, in–

Ruth Bader Ginsburg:

–without mentioning it?

Conal Doyle:

–effect, because it’s incorporated by reference through the Act.

So 1346(b), the first sentence says

“subject to the provisions of chapter 171. “

which is the entire FTCA.

And within that chapter, there’s a provision entitled “Exclusiveness of Remedy”.

And that defines — and that really addresses the precise issue before the Court, whether the FTCA is the exclusive remedy here for a Bivens action.

And it specifically says in that section that Bivens actions are excluded.

And so if you want to find out what remedy is available to a prospective plaintiff, you have to look at how Congress defined the remedy, and it specifically defined it by limiting it under its Exclusiveness Clause to common law torts, not Bivens claims.

But I think one of the key principles here that we have to acknowledge is that you defer — the Court defers to Congress in policy considerations like this because presumably Congress is in a better position than the Court to — to weigh policy decisions like providing immunity to certain government employees.

But the deference there is only appropriate where Congress has actually faced the issue and balanced the policy considerations.

And it could not have done so in 1970, because Bivens hadn’t been decided; Estelle v. Gamble hadn’t been decided until 1976, which — which established the deliberate indifference standard; and then Carlson wasn’t decided until 1980.

And when Congress, for the first time, actually looked at the issue–

Antonin Scalia:

Well, you say any — any other civil action that — that did not exist prior to the enactment of 233(a) would not be covered by its exclusion because Congress couldn’t have known that this civil action existed, so that it only covered those causes of action that existed at the time the statute was passed?

Conal Doyle:

–Only — only as to constitutional causes of action, Justice Scalia.

And I think–

Antonin Scalia:

Why?

I mean, if your theory is it doesn’t preclude anything they didn’t know about, if they didn’t know about something, whether it’s constitutional or not, what — what reason is there to say it’s precluded?

Conal Doyle:

–Well, I think that the issue here is, is that when Congress is going to — was going to abrogate a constitutional right or recognize a constitutional remedy, it has to do so in a clear way.

Conal Doyle:

And in, for example, Webster v. Doe or, in effect, the Blatchfield — Blatchford case, has very similar language.

It’s all civil actions, and that’s in a context of whether Indians can bring an action against the State under the Eleventh Amendment.

In that case, the Court held that all civil actions did not include the right to bring an action against the Eleventh Amendment — a State under the Eleventh Amendment, because you’re dealing with a constitutional issue.

And in this case — I think that goes to Justice Kennedy’s point — we’re not saying that, you know, any cause of action that perhaps was created after 1970 wouldn’t be barred, but when you’re talking about a constitutional cause of action, there is a difference.

And you — Congress has to at least consider the issue, balance the policy considerations, and make an informed decision in order for this Court to abrogate a constitutional right.

Anthony M. Kennedy:

And Carlson is your best authority for that?

Even though I don’t think Carlson is directly on point, Carlson is still your best authority?

Conal Doyle:

Well, Carlson sets forth the clear statement rule here, the explicit declaration test, and then–

Anthony M. Kennedy:

In a different context, but that — but Carlson is still your best authority for that proposition?

Conal Doyle:

–I think Webster v. Doe is another example of a case where this Court would not abrogate a constitutional right based on fairly clear language that said the director of the CIA had discretion to terminate anybody.

And in that case, he terminated a CIA employee because he was homosexual, and he brought a variety of different constitutional causes of action.

And then, you know, the Court held that to abrogate a constitutional cause of action, there has to be — there has to be a clear statement.

And so we don’t believe there has been that clear statement, but–

John Paul Stevens:

Do think your clear statement argument would apply even if Carlson had been decided before the statute was enacted?

Conal Doyle:

–Well, that’s true, Your Honor.

John Paul Stevens:

Okay.

Conal Doyle:

And so, it’s not–

John G. Roberts, Jr.:

Well, I would have thought it wouldn’t apply as strongly because they would have been saying any action at a time when they knew that particular action existed.

Conal Doyle:

–It wouldn’t — it wouldn’t apply as — as strongly, but I — I don’t think that the sequence of enactment is dispositive, I think is the point.

John G. Roberts, Jr.:

Oh, so you’re saying — your response to Justice Stevens follows because you say they — unless they say a Bivens action is excluded, it’s not.

Conal Doyle:

Or constitutional, but it has to be clear that Congress addressed the issue and considered abrogating a constitutional claim.

I mean, that’s what the cases are clear about.

And so–

Ruth Bader Ginsburg:

So the Gonzalez Act is after Bivens.

Conal Doyle:

–It is.

Ruth Bader Ginsburg:

But you say the same thing — even though Bivens was before Congress — and even though the Gonzalez Act doesn’t have an exception for Bivens claims, you read one into the Gonzalez Act?

Conal Doyle:

Your Honor, I — I would say the Gonzalez Act also wouldn’t bar Bivens claims, because it’s just the sequence of enactment — but I mean, if it was — if it had shown in some way that Congress considered the constitutional issue — and the legislative history of the Gonzalez Act shows that it did not at that time — if there was some indication in the language of the statute or anywhere that a constitutional–

Antonin Scalia:

Legislative history will do, so — so we don’t require this clear statement, right?

Conal Doyle:

–I’m sorry, Justice Scalia, I didn’t hear your question.

Antonin Scalia:

Legislative history will do the job, so you’re abandoning the — the proposition that there has to be a clear statement by Congress.

Conal Doyle:

No, Your Honor.

And if I — if I meant to imply that, I misspoke.

Antonin Scalia:

That’s what you said.

I thought you said if — if it was clear from the legislative history that Congress considered Bivens actions and nonetheless enacted language similar to 233(a), that wouldn’t be enough.

Conal Doyle:

It — it — I think that in the statute, in the — in the text of the statute itself, there has to be some evidence from Congress that it considered it.

I think that you can look at other factors to try to figure out what — what Congress was thinking, of course.

However, in this case, I think the point is clear that whether you look at the legislative history, whether you look at the alternative remedial scheme–

Antonin Scalia:

Now you’re confusing me again.

[Laughter]

Is — is — is important what Congress was thinking or what Congress said?

I thought your proposition was, unless the statute says that it bans constitutional actions, it doesn’t.

Is that your proposition?

Conal Doyle:

–That — that’s correct.

You have to start with the text.

Antonin Scalia:

Then it doesn’t matter what Congress was thinking, does it?

Unless Congress says that, your — your position is–

Conal Doyle:

Well, obviously if — if the statute unambiguously bars constitutional claims by mentioning the Constitution, I don’t think you look at the legislative history.

That’s correct, Your Honor.

Antonin Scalia:

–But, ah, but if it doesn’t unambiguously bar it, you can then look to legislative history and say although it didn’t bar it, the legislative history shows that it was intended to bar it.

Conal Doyle:

I think that if — if — if any statute is ambiguous–

Antonin Scalia:

You are abandoning Carlson then.

Conal Doyle:

–you can look to the legislative history.

Antonin Scalia:

I thought Carlson was your big case.

Conal Doyle:

Well, I believe it is, Your Honor.

And — and — and the Carlson test–

Antonin Scalia:

You just abandoned its proposition that there has to be a statement in the statute.

Conal Doyle:

–Your Honor, all I’m saying is that–

John G. Roberts, Jr.:

You’re not abandoning it; you’re taking it further.

You’re taking Carlson further.

It doesn’t have to be — no?

Conal Doyle:

–All I’m saying is, I believe, is that — is that in this case, if you look at the actual statute that’s at issue, no matter what test you use, whether you — whether you — whether you like legislative history, whether you — whether you only look at plain text, or whether you want to look at what’s the alternative remedy, is it equivalent to a constitutional claim, this statute doesn’t pass muster.

It is clear that Congress never considered whether or not to abrogate a constitutional cause of action in 1970.

Stephen G. Breyer:

I think his point is it doesn’t matter whether they did or didn’t consider it; the question is the statute was decided by Justice Brennan as an example of a statute where Congress did explicitly say whatever it thought that this particular remedy was a remedy exclusive, an exclusive remedy, and that satisfied the second requirement of Carlson.

That was Justice Ginsburg’s first question.

And — and there — that’s, I think, the problem for you in this case.

Conal Doyle:

Your Honor, again, I don’t want to repeat my answer to that question, but just to emphasize that — that the Court in Carlson did not specifically say that Bivens claims were barred by reference to 233.

It mentioned malpractice.

And there is a distinct difference between malpractice and deliberate indifference in 1980, because Estelle had been decided 4 years earlier.

So, one of the other anomalies here is that looking at — at — at the practical effect, going to your implied repeal question, Justice Scalia, the only work that — that 233(a) would have left to do under the Petitioners’ reading is — is to bar Bivens claims.

And when Congress enacted the statute in 1970, Bivens didn’t even exist.

And so, the protection that — the — the position that we are advocating protects doctors because the Westfall Act extends much broader immunity to common law torts, to any wrongful act or omission, not just actions performing medical functions.

And so, this is completely consistent with Congress’s intent in 1970 when constitutional claims didn’t even exist.

And so, when Congress looked at the issue, examined it and decided whether — whether there’s a difference between Bivens and the common law and whether the FTCA was adequate to substitute for Bivens, it made a decision to expressly preserve Bivens actions in this case.

And even if, Your Honors, you believe that 233 bars Bivens claims here, you have to reconcile it with the Westfall Act, because the Westfall Act expressly preserves Bivens claims.

And it is a comprehensive statute; it is a later passed statute; and it is specific to the issue before the Court, which is can — can a Bivens claim be brought against a Public Health Service doctor?

Ruth Bader Ginsburg:

The Westfall Act could be read to say we’re now covering all these people who did not have, who were not sheltered by immunity before, but this amendment saves out Bivens claims.

One could read that as self-contained and not touching other statutes that existed independently before.

Conal Doyle:

Your Honor, I — I — I don’t think that’s a reasonable reading, because at the time of the Westfall Act’s passage in 1988, no court had held that Bivens claims were barred by section 233 or any other pre-Act immunity statute like the Gonzalez Act or and the VA Act.

And the legislative history of the Westfall Act shows that, in 1988, Congress believed that the Westfall Act would simply extend the protections available to — to government employees before Westfall v. Erwin, and that — and that people would still be able to bring constitutional claims against members of the Federal government.

And so, Congress had no reason in 1988 to go back and amend the — the earlier passed 233, because there was no indication — judicial construction or the legislative history — that 233 ever barred Bivens claims in the first place.

And so, adopting the Petitioners’ position in this case would — would subvert congressional intent, because it would say that, you know, when Congress finally weighed all of the considerations in the case, decided whether Bivens and the FTCA were adequate, it decided to — it decided to preserve Bivens claims rather than bar them.

And — and — and so, accepting the Petitioners’ position would just subvert that intent based on an Act that was passed prior to Bivens existing, prior to a constitutional cause of action being accepted for this type of action, and it — and it would just be completely inconsistent with what Congress has — has done to protect Federal employees.

John Paul Stevens:

May I just be sure I understand your argument?

Is the Westfall Act — would it have covered every immunity that the Public Health Act previously provided?

So, is it correct that the — the prior statute is now totally unnecessary and does nothing except preserve the Bivens — preserve the immunity for Bivens actions?

Conal Doyle:

No, Your Honor, I don’t think I got to finish that answer before.

But if you look at — at the appendix to our — our brief from page 28 to 62, there’s two pages in there, page 29 and page 55, that show that section (a) still has meaning, because there’s a host of non-Federal employees, people that — that are government contractors that provide services to free health clinics and the like that can be deemed employees of the Public Health Service and then take advantage of their immunity.

But otherwise, they wouldn’t be able to take advantage of the immunity under FTCA, because they aren’t Federal employees.

So 233(a) still has work to do, even under our construction.

And so, surely, it would not protect Public Health Service employees any more because they have greater protections in the Westfall Act, and, again, the Petitioners’ reading here would — the only work it would have left to do would be to bar Bivens claims, but Bivens didn’t even exist in 1970, when — that the Act was passed.

Conal Doyle:

That doesn’t — that doesn’t make much common sense.

And before I — I conclude, I just want to speak for a moment about, you know, the importance of this case under the — the Bivens jurisprudence.

I mean, the purpose of Bivens — this Court has acknowledged recently in Meyer and Malesko is to provide deterrence to — to Federal officers.

And this is exactly the type of case that — that — where deterrence is important, because government employees should not feel that they can — they can–

Stephen G. Breyer:

Can’t they sue the Federal Government and collect money?

Conal Doyle:

–Not for the — not for a Bivens claim, and–

Stephen G. Breyer:

No, I mean, can’t your clients — anybody who has a case like yours — can’t they sue the Federal Government and collect damages for their claim?

Conal Doyle:

–It depends.

Sometimes they can’t.

Stephen G. Breyer:

Did your clients sue the Federal Government?

Conal Doyle:

Yes.

Stephen G. Breyer:

Did they collect money?

Conal Doyle:

No, they haven’t collected money yet.

Stephen G. Breyer:

No.

But if they win, will they?

Conal Doyle:

On one claim, but one of our claims, the most important claim here, is — is — will be extinguished under California law, which highlights why, you know, Congress would not want to — why this Court in Carlson, first of all, said that the FTCA is not an effective substitute for Bivens, and Congress ratified that decision 8 years later in the Westfall Act by finding the same thing, that — that Bivens claims and the FTCA are complementary and parallel causes of action, because for the very reason that, under California law in this case, a survival claim for pre-death pain and suffering for — for Mr. Castaneda, who endured an incredible ordeal for 2 years at the hands of a government medical provider, that that — that claim would be barred.

And so I would urge this Court to follow its — its precedent in Carlson and recognize that Congress, 8 years later in the Westfall Act, actually ratified that holding that said that the FTCA is not an adequate substitute for a Bivens action for the reasons I’ve set forth.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Goldenberg, you have 3 minutes remaining.

Elaine J. Goldenberg:

Just two quick points, if I may.

One is that I think you can’t read this Court’s Bivens jurisprudence to set forth any kind of clear statement rule in this context.

In many cases after Carlson was decided, this Court has looked for indications that Congress thought the judiciary should stay its hands, and it has found those indications in the mere existence of some kind of statutory scheme, even where Congress has said nothing express about whether that scheme should be exclusive or not.

If it can be the case that, simply by setting forth an elaborate scheme, Congress can indicate its intent that this particular implied cause of action shouldn’t go forward, then it must be true also that where Congress expressly says that it shouldn’t go forward, that that can be given effect.

And I point out that there is not a cutting off of a constitutional right here.

It’s just that there is a specific cause of action that isn’t going to be allowed to go forward because it’s one that this Court would imply.

Secondly, just to go back to my answer to Justice Kennedy’s question before, the case that I meant to cite to you was Van de Kamp v. Goldstein, 129 Supreme Court 855, and that talked about absolute immunity reflecting a balance of evils.

Here, I think Congress has done that balancing.

Congress has decided that it would rather protect the PHS, make sure that causes of action and liability aren’t hanging over the heads of PHS officers, even if that means that some individuals don’t get recovery against certain specific PHS personnel on their claims, when they can of course recover from the United States.

If there are no further questions, we’d ask that the decision of the Ninth Circuit be reversed.

John G. Roberts, Jr.:

Thank you, counsel.

Counsel.

The case is submitted.