Below, Luke Appling of Harvard Law School recaps Tuesday’s oral argument in Hui v. Castaneda.  Luke’s preview of the proceedings is available here.  Check the Hui v. Castaneda (08-1529 and 08-1547) SCOTUSwiki page for additional updates.

During Tuesday's oral argument in Hui v. Castaneda, the Court wrestled with the meaning of Section 233(a) and the effect of the later-enacted Westfall Act, while largely avoiding the more ideologically charged questions about the proper role of Bivens actions.

Arguing on behalf of the petitioners, Ms. Elaine Goldenberg argued that Section 233(a) precludes Bivens actions by making the FTCA the exclusive remedy.  Justice Sotomayor questioned whether that could have been Congress's intent, given that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) had not been decided when Section 233(a) was enacted.  Justice Kennedy, on the other hand, countered that such immunity clauses are designed to apply to both foreseen and unforeseen causes of action, a proposition with which Ms. Goldenberg agreed.  Objecting to what he described as attempts to "psychoanalyze" what Congress may have known, Justice Scalia sought to focus on the text of Section 233(a).  In response, Ms. Goldenberg argued that Section 233(a)'s grant of immunity from "any other civil action" except for the FTCA is very broad and applies to Bivens actions.

Justices Ginsburg and Stevens raised several concerns with the petitioners' argument.  Justice Ginsburg first noted that the Westfall Act applies to all federal employees, including PHS personnel.  While agreeing, Ms. Goldenberg argued that PHS personnel can take advantage of both the immunities provided by the Westfall Act and the more specific immunities afforded by Section 233(a).  When Justice Ginsburg asked whether recovery would be limited under the FTCA in light of California law, Ms. Goldenberg responded that the cap only applies to non-economic damages, and there may be ways to circumvent the cap in this case.  Finally, Justice Stevens observed that, in Carlson v. Green (1980), the government did not argue that the defendant PHS employee was immune from Bivens actions under Section 233(a).  Ms. Goldenberg responded that it is not clear why the defense was not raised there; in any event, however, the real significance of Carlson is that the Court identified Section 233(a) as an example of Congress's explicit preclusion of non-FTCA remedies.

Arguing on behalf of the United States as an amicus in support of the petitioners, Assistant to the Solicitor General Pratik Shah reiterated that the plain terms of Section 233(a) are broad enough to preclude Bivens actions even if Congress did not specifically contemplate such actions.  Justice Sotomayor questioned why Congress would immunize PHS personnel from Bivens actions through Section 233(a) but subject other prison personnel to such actions under the Westfall Act.  Mr. Shah argued that Congress sought to revitalize the PHS by providing this immunity.  In response, Justice Scalia argued that, because Section 233(a) and the Westfall Act were enacted by different Congresses, there was no need to reconcile the different treatment they provide to PHS and other personnel, a point with which Mr. Shah agreed.

On behalf of the respondents, Mr. Conal Doyle argued that Section 233(a) does not preclude Bivens actions because it does not specifically indicate that the FTCA is a substitute for Bivens.  Moreover, he argued, the later-enacted Westfall Act clarifies that Congress did not intend the FTCA to be such a substitute.  But questions from the Justices "“ from both ends of the ideological spectrum "“ suggested that the Court was quite skeptical of that argument.  For example, Justice Scalia emphasized that Section 233(a) makes the FTCA the exclusive remedy and asked whether the respondents were arguing that the Westfall Act repealed Section 233(a).  When Justices Ginsburg and Breyer similarly asked whether the Westfall Act amended Section 233(a) by implication, Mr. Doyle answered that it did so "in effect" because it is incorporated by reference through the act.

Mr. Doyle also advanced a different interpretation of Carlson, which in his view was significant insofar as it required an explicit declaration by Congress that another remedy was intended to preclude a Bivens action.  Yet Justice Ginsburg interjected that this was a "surprising statement" because the Court in Carlson had identified Section 233(a) as an example of Congress having made the FTCA the exclusive remedy, and Justice Breyer agreed that Carlson's reference to Section 233(a) is "the problem for [the respondent] in this case."  Mr. Doyle responded that the Carlson Court cites Section 233(a) as an example of exclusivity, but with regard to malpractice claims rather than Bivens claims.

In her rebuttal, Ms. Goldenberg argued that in cases since Carlson, the Court has found the existence of an alternative remedial scheme sufficient to prevent the recognition of a Bivens action.  The Court asked no questions during the rebuttal.

Posted in Hui v. Castaneda, Merits Cases, Uncategorized