On May 3, the Supreme Court decided Hui v. Castenada, No. 08-1529, holding that a federal statute permitting an action against the United States for injuries, including death, resulting from the performance of medical services by Public Health Service (PHS) officers and employees, but barring actions against such personnel individually, bars Bivens actions alleging constitutional violations in connection with those services.
While he was detained by immigration authorities, Francisco Castenada complained of a bleeding lesion, which grew and worsened during the ten months while he was in custody. Although a PHS physician's assistant and several outside consultants repeatedly recommended a biopsy to determine whether Castenada had cancer, the PHS physician who was treating him denied the biopsy request as "elective" and instead treated Castenada with antibiotics and over-the-counter pain relievers. Promptly after Castenada's release, a biopsy confirmed that he had cancer, and he died a year later. Before his death, he filed an action asserting a Federal Tort Claims Act (FTCA) claim against the United States for negligence and a Bivens claim against the PHS physician and her supervisor for deliberate indifference to his serious medical needs in violation of several constitutional provisions. The individual defendants moved to dismiss, claiming that they were immune from such claims under 42 U.S.C. § 233(a), which provides that an FTCA action against the United States based on the performance of medical functions by any PHS officer or employee "shall be exclusive of any other civil action or proceeding by reason of the same subject matter." The district court held that the statute did not provide immunity against Bivens claims, and the Ninth Circuit affirmed.
The Supreme Court reversed unanimously. It held that the issue begins and ends with the statutory text of section
233(a), which plainly precludes a Bivens action by providing that an FTCA claim is the only remedy for conduct of the type that injured Castenada. This reading of the statute is compelled by its use of the broad words "exclusive" and "any" as well as its inclusive reference to all civil proceedings. It is also supported by the fact that, when the FTCA was amended to make its remedy exclusive for most claims against other categories of federal employees, Congress used essentially the same language as in section 233(a) but provided an explicit exception for constitutional violations—thus showing that Congress did not understand the section 233(a) language to imply such an exception.