& 08-1547: Migliaccio v. Castaneda/Henneford v. Castaneda - Amicus (Uninvited)

Nos. 08-1529 and 08-1547

In the Supreme Court of the United States

EUGENE MIGLIACCIO, ET AL., PETITIONERS

v.

YANIRA CASTANEDA, ET AL.

CHRIS HENNEFORD, PETITIONER

v.

YANIRA CASTANEDA, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FRANCISCO CASTANEDA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
BARBARA L. HERWIG
HOWARD S. SCHER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

DAVID S. CADE
Acting General Counsel
Department of Health and
Human Services
Washington, D.C.

QUESTION PRESENTED

Whether 42 U.S.C. 233(a), which provides that a suit against the United States under the Federal Tort Claims Act is exclusive of any other action against a commissioned officer or employee of the Public Health Service for injury resulting from the performance of medical functions, bars a suit against such an officer or employee based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

STATEMENT OF COMPLIANCE WITH

SUPREME COURT RULE 37.2(a)

Counsel of record received timely notice of the United States' intent to file this amicus curiae brief ten days before the due date. Pursuant to Rule 37.4, the consent of the parties is not required for the United States to file this brief.

In the Supreme Court of the United States

No. 08-1529

EUGENE MIGLIACCIO, ET AL., PETITIONERS

v.

YANIRA CASTANEDA, ET AL.

No. 08-1547

CHRIS HENNEFORD, PETITIONER

v.

YANIRA CASTANEDA, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRANCISCO CASTANEDA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The court of appeals held that 42 U.S.C. 233(a)-which makes an action against the United States under the Fed eral Tort Claims Act (FTCA) the exclusive remedy for all damage claims arising out of medical care provided by com missioned officers or employees of the federal Public Health Service (PHS) while acting within the scope of their employment-does not bar tort claims premised on Bivens

v. Six Unknown Named Agents of Federal Bureau of Nar cotics, 403 U.S. 388 (1971). The government has a signifi cant interest in proper resolution of that issue. The govern ment raises Section 233(a) as a bar to suit against individual PHS personnel when they are sued for conduct arising out of medical treatment. Further, the court of appeals' deci sion will likely have an adverse impact on the government's ability to recruit, hire, and retain medical personnel for the PHS, and may affect other federal entities that have medi cal missions covered by similar immunity statutes.

STATEMENT

1. The PHS, which is part of the Department of Health and Human Services (HHS), see 42 U.S.C. 201 et seq., em ploys, among others, over 6,000 commissioned officers as physicians, dentists, nurses, pharmacists, and other medical personnel, and nearly 14,000 civilian employees whose du ties involve patient care. PHS personnel are detailed to a number of agencies, including the Department of Homeland Security, Bureau of Prisons, Indian Health Service, and United States Marshals Service. They provide medical care in every State and in numerous foreign countries-often in communities most in need of medical care providers. PHS personnel also staff quarantine stations to limit the intro duction of communicable diseases into the United States and to prevent their spread. See 42 U.S.C. 264; 42 C.F.R. 71.32, 71.33.

PHS's Commissioned Corps is one of the seven uni formed services of the United States. 42 U.S.C. 201(p), 204, 207. The Commissioned Corps, which includes the Surgeon General, may be called into military service in times of war or national emergency, at which point its personnel become subject to the Uniform Code of Military Justice. 42 U.S.C. 217.1

2. a. Following a December 2005 conviction, Francisco Castaneda, an alien, was imprisoned by the California De partment of Corrections (DOC). During that incarceration, Castaneda met several times with DOC medical personnel regarding a lesion on his penis. Although those personnel recommended a biopsy, Castaneda did not receive one. Pet. App. 2a-3a.2

On March 27, 2006, Castaneda was transferred from DOC to Immigration and Customs Enforcement (ICE) custody in San Diego in connection with removal proceed ings that had been commenced against him. According to the complaint filed in district court, Castaneda immediately complained to medical staff-consisting of PHS person nel-that a lesion on his penis was growing, becoming pain ful, and producing a discharge. He was examined by a phy sician's assistant, who noted both Castaneda's personal history of genital warts and his family history of cancer, and recommended a urology consultation and a biopsy. Although that recommendation was approved, Castaneda did not receive a biopsy. Over the ensuing months, he re peatedly complained that his condition was worsening. He was seen by several different doctors (including urologists) and physician's assistants, some of whom were concerned about the possibility of cancer and recommended a biopsy. Others considered the problem to be genital warts. Pet. App. 3a-7a, 42a-48a.

In January 2007, Castaneda saw another urologist, who concluded that the lesion was "most likely penile cancer" and ordered a biopsy. On February 5, 2007, before the scheduled biopsy, Castaneda was released from ICE cus tody. Three days later, he went to a hospital and was diag nosed with penile cancer. A week after that, his penis was amputated, and he began undergoing chemotherapy for the metastasized cancer. He died in February 2008. Pet. App. 7a-8a.

b. Castaneda commenced this action months before his death.3 He asserted claims against the United States under the FTCA, against state officers and employees under 42 U.S.C. 1983, and against various federal officers and em ployees of the PHS under Bivens. Castaneda alleged that the individual federal defendants violated the Fifth and Eighth Amendments of the Constitution by failing to treat his known serious medical condition, purposefully denying treatment, and acting with deliberate indifference to his serious health needs. Pet. App. 8a.

At all relevant times, the individual federal defendants (petitioners in this Court) were either commissioned offi cers or civilian employees of the PHS. After certifying that petitioners had acted within the scope of their employment, the government, which then represented petitioners, moved to dismiss the claims against petitioners on the basis of 42 U.S.C. 233(a). Pet. App. 8a-9a. Section 233(a) provides:

The remedy against the United States provided by sections 1346(b) and 2672 of title 28 [the Federal Tort Claims Act] * * * for damage for personal injury, in cluding death, resulting from the performance of medi cal, surgical, dental, or related functions * * * by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or em ployment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.

42 U.S.C. 233(a).

The district court denied petitioners' motion to dismiss. Pet. App. 41a-80a. The court concluded, inter alia, that Section 233(a), via its reference to 28 U.S.C. 1346(b) and an ensuing "statutory trail" that the court believed led to Sec tion 2679(b)(2)(A), "incorporates the provision of the FTCA which explicitly preserves a plaintiff's right to bring a Bivens action." Id. at 59a, 61a.

c. The government, on behalf of petitioners, filed an interlocutory appeal. The government also admitted liabil ity on plaintiff's FTCA claim against the United States for medical negligence. Gov't Notice of Admission, CV 07-7241 Docket entry No. 110 (C.D. Cal. Apr. 24, 2008). Shortly thereafter, and before appellate briefing, the government authorized each petitioner to retain private counsel for rep resentation throughout the remainder of the litigation to ensure that each received independent legal advice and that their personal interests were separately considered and represented in the case. Private counsel took over briefing in the court of appeals, and the United States (which re mained a party in the underlying district court case) filed an amicus curiae brief in support of petitioners.

The court of appeals affirmed. Pet. App. 1a-40a. The court focused its analysis on Carlson v. Green, 446 U.S. 14 (1980), in which the Court had held that the availability of an FTCA remedy did not preclude a Bivens action against federal officials. According to the court of appeals, a Bivens action is available under Carlson unless (1) an alternative remedy is both (a) "explicitly declared to be a substitute" for a Bivens remedy and (b) "viewed as equally effective," or (2) there are "special factors" that militate against a Biv ens remedy. Pet. App. 10a. Applying that test, the court of appeals held that Section 233(a) did not preclude a Bivens claim-a result that it acknowledged "conflicts with" the Second Circuit's decision in Cuoco v. Moritsugu, 222 F.3d 99 (2000). Pet. App. 35a; see id. at 10a-40a.

The court of appeals determined that the FTCA remedy offered by Section 233(a) was not "equally effective" as a Bivens remedy for the same reasons an FTCA remedy was not deemed equally effective in Carlson: (1) FTCA dam ages, unlike Bivens damages, are not awarded against indi vidual defendants; (2) punitive damages are unavailable under the FTCA; (3) FTCA cases, unlike Bivens claims, are not tried before a jury; and (4) FTCA remedies are not gov erned by uniform nationwide rules. Pet. App. 13a-18a.

The court of appeals also determined that Congress did not "explicitly declare" in Section 233(a) that the FTCA was a substitute for a Bivens action. The court pointed out that Section 233(a) does not mention constitutional claims and that it was enacted before Bivens was decided. According to the court, Section 233(a) was intended only to preempt a particular set of common-law tort claims related to medical malpractice. The court also noted that other federal medi cal personnel are not afforded comparable immunity from constitutional claims. Pet. App. 18a-35a.

The court of appeals expressly disagreed with the Sec ond Circuit's conflicting decision in Cuoco. The court stated that the Second Circuit misread language in Carlson that appeared to confirm that Section 233(a) made the FTCA an exclusive remedy. Further, the court argued that the Sec ond Circuit failed to address the prong of Carlson's analysis stating that an alternative statutory remedy must be "equally effective" to a Bivens action. Pet. App. 35a-37a.

Finally, the court of appeals held that there were no "special factors" warranting hesitation in creating a cause of action under Bivens in this setting. In the court's view, Section 233(a) does not provide a comprehensive remedial scheme precluding Bivens relief. Pet. App. 37a-39a.

DISCUSSION

The Court should grant review of the court of appeals' decision holding that 42 U.S.C. 233(a) does not provide PHS personnel with immunity from Bivens claims arising out of the provision of medical care. First, that decision directly conflicts with the Second Circuit's decision in Cuoco v. Moritsugu, 222 F.3d 99 (2000). Second, the scope of Sec tion 233(a)'s grant of immunity presents an important fed eral question because the court of appeals' ruling may un dermine the ability of PHS to fulfill its statutory mandate and may affect the interpretation of immunity provisions governing other federal medical personnel. Third, the court of appeals' decision is contrary to the plain language of Section 233(a) and the Court's interpretation of that lan guage in Carlson v. Green, 446 U.S. 14 (1980).

A. The Courts Of Appeals Disagree On Whether Section 233(a)'s Grant Of Immunity Covers Bivens Claims

As the court of appeals acknowledged (Pet. App. 35a- 37a), its decision directly conflicts with the Second Circuit's decision in Cuoco. In Cuoco, the Second Circuit held that Section 233(a) barred a Bivens action brought against indi vidual PHS physicians and other employees working at a federal prison facility for inadequate medical care that al legedly rose to the level of an Eighth Amendment violation. The Second Circuit specifically rejected the plaintiff's argu ment "that § 233(a) provides immunity only from medical malpractice claims," because "there is nothing in the lan guage of § 233(a) to support that conclusion." Cuoco, 222 F.3d at 108. The Second Circuit thus held that PHS em ployees are absolutely immune from suits arising out of medical treatment, including suits claiming that such treat ment violated federal constitutional norms. Id. at 107-109.

A number of other courts of appeals have reached the same conclusion as Cuoco in unpublished decisions. See Anderson v. BOP, 176 Fed. Appx. 242, 243 (3d Cir.) (per curiam), cert. denied, 547 U.S. 1212 (2006); Butler v. Shearin, 279 Fed. Appx. 274, 275 (4th Cir. 2008) (per curiam), aff'g No. 04-2496, 2006 WL 6083567, at *7 (D. Md. Aug. 29, 2006); Cook v. Blair, 82 Fed. Appx. 790, 791 (4th Cir. 2003), aff'g No. 02-609, 2003 WL 23857310, at *2 (E.D.N.C. Mar. 21, 2003); Montoya-Ortiz v. Brown, 154 Fed. Appx. 437, 439 (5th Cir. 2005) (per curiam); Schrader v. Sandoval, No. 98-51036, 1999 WL 1235234, at *2 (5th Cir. Nov. 23, 1999); Walls v. Holland, No. 98-6506, 1999 WL 993765, at *2 (6th Cir. Oct. 18, 1999); Beverly v. Gluch, No. 89-1915, 1990 WL 67888, at *1 (6th Cir. May 23, 1990). In deed, even the Ninth Circuit had previously so held in un published decisions. See Miles v. Daniels, 231 Fed. Appx. 591, 591-592 (2007); Zanzucchi v. Wynberg, No. 90-15381, 1991 WL 83937, at *2 (May 21, 1991).4

The Court should grant the certiorari petitions to re solve the conflict between the Ninth Circuit's decision in this case and the decisions of the Second Circuit and other courts of appeals.

B. The Scope Of Section 233(a)'s Immunity Presents An Important Federal Question

The Court's review is further warranted because PHS conducts nationwide operations that should be subject to uniform immunity rules. The immunity conferred by Sec tion 233(a) is of material importance to PHS's personnel and operations. As a result of the decision below, PHS medical personnel serving in or deployed to the Ninth Cir cuit will be denied protection from suit that their colleagues in other parts of the country are afforded. That disparity will cause significant administrative problems, hindering the efforts of the government to recruit physicians and other medical providers to work in a large geographic re gion that relies heavily on PHS personnel to deliver health care services. The court of appeals' decision, if left stand ing, could force HHS to indemnify PHS personnel for the costs of defending or resolving Bivens claims arising out of performance of their medical duties-a potentially signifi cant drain on limited agency resources. In addition, that court's decision would affect the immunity provided to med ical personnel beyond the PHS, because 42 U.S.C. 233(g)- (n) confers on employees, officers, and certain individual contractors of federally funded community health centers the same immunity afforded PHS commissioned officers and employees. The court of appeals' interpretation of the scope of Section 233(a) therefore will create similar prob lems for the government in supporting these health centers.

The Ninth Circuit's interpretation of Section 233(a) also may have implications for medical personnel in other agen cies who operate under immunity provisions using similar language. See 38 U.S.C. 7316(a) (making the FTCA the exclusive remedy "for damages * * * allegedly arising from malpractice or negligence of a health care employee" of the Department of Veterans Affairs); 10 U.S.C. 1089(a) (making the FTCA the exclusive remedy "for damages * * * caused by the negligent or wrongful act or omission of any [medical personnel]" in the armed services). Indeed, in Carlson, this Court discussed the immunity provisions in 38 U.S.C. 7316(a) (formerly codified as 38 U.S. 4116(a) (1988)), 10 U.S.C. 1089(a), and Section 233(a) in a single breath-all as statutes "explicitly stating when [Congress] means to make FTCA an exclusive remedy." 446 U.S. at 20; see p. 18, infra.

C. The Ninth Circuit Erred In Holding That Section 233(a) Does Not Bar Bivens Claims Against PHS Personnel Based On Medical Treatment

1. a. The court of appeal's holding is contrary to the plain language of Section 233(a). Section 233(a) states:

The remedy against the United States provided by sections 1346(b) and 2672 of title 28 [the FTCA] * * * for damage for personal injury, including death, result ing from the performance of medical, surgical, dental, or related functions * * * by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by rea son of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.

42 U.S.C. 233(a).

The text unequivocally provides that the "remedy against the United States" under the FTCA for "damage for personal injury, including death, resulting from the per formance of medical, surgical, dental, or related functions" "by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment" "shall be exclusive of any other civil action or proceeding" arising out of the same subject matter. 42 U.S.C. 233(a) (emphasis added). The statute draws no dis tinction between "other civil action[s]" predicated on common-law tort theories and those based on the Constitu tion. It instead makes plain that the "exclusive" remedy for injuries resulting from medical treatment provided by PHS personnel is an action against the United States under the FTCA. The statute's text could not be clearer: it reflects Congress's intent to afford PHS officers and employees absolute immunity from "any" damages actions arising out of medical care provided in the course of their employment.

The limited legislative history concerning Section 233(a) confirms that statutory purpose. The overarching objective of the Emergency Health Personnel Act of 1970, Pub. L. No. 91-623, 84 Stat. 1868 (of which Section 233(a) was a part) was to facilitate PHS's provision of medical care in underserved areas. See _ 2, 84 Stat. 1868; H.R. Rep. No. 1662, 91st Cong., 2d Sess. 1 (1970). Because PHS personnel were not paid enough to afford malpractice insurance, the Surgeon General requested an amendment-Section 233(a)-to protect employees from damage suits arising out of the medical care they provided. See, e.g., 116 Cong. Rec. 42,543 (1970) (Rep. Staggers, the sponsor in the House of Representatives) (PHS physicians "cannot afford to take out the customary liability insurance as most doctors do," "because of the low pay that so many of those who work in the [PHS] receive."); id. at 42,977 (Sen. Javits) (PHS per sonnel "just could not afford to take out the customary lia bility insurance."); see also Cuoco, 222 F.3d at 108 ("[Sec tion 233(a)] may well enable the Public Health Service to attract better qualified persons to perform medical, surgi cal and dental functions in order to better serve, among others, federal prisoners."). Allowing a Bivens claim would thus undermine Section 233(a)'s grant of immunity to pro tect PHS personnel from personal financial liability arising out of their medical duties. And in doing so, it would under mine as well PHS's ability to recruit qualified medical per sonnel to furnish critically needed services.

b. Notwithstanding Section 233(a)'s plain language, the court of appeals held that the provision does not foreclose a Bivens actions. The court reached that conclusion based in part on the 1988 amendments to the FTCA. Pet. App. 24a-25a. Those amendments extended the personal immu nity provided by 28 U.S.C. 2679(b) (originally enacted in 1961, see Act of Sept. 21, 1961, Pub. L. No. 87-258, 75 Stat. 539) to a broader class of injuries while carving out Bivens claims from that enhanced scope. See Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, _ 5, 102 Stat. 4564. Prior to the 1988 amendments, Section 2679(b) made the FTCA the exclusive remedy only for injury resulting from a federal employee's operation of a motor vehicle.5 The Westfall Act, via new Section 2679(b)(1), extended the ex clusivity of the FTCA remedy to any injury "resulting from the negligent or wrongful act or omission" of any federal employee. 28 U.S.C. 2679(b)(1). At the same time, how ever, the Westfall Act added Section 2679(b)(2)(A), which states that Section 2679(b)(1)'s provision of an exclusive FTCA remedy "does not extend or apply to a civil action against an employee of the Government * * * brought for a violation of the Constitution." 28 U.S.C. 2679(b)(2)(A).

Based on Section 2679(b)(2)(A), the court of appeals read the Westfall Act to reinforce its view that Section 233(a)-though enacted long before the Westfall Act and in legislation separate from the FTCA more generally (see pp. 11-12, supra)-does not bar a claim based on the Constitu tion. Pet. App. 25a-26a. The district court went even fur ther. That court stated that Section 233(a)'s reference to "the remedy against the United States" provided by 28 U.S.C. 1346(b) of the FTCA incorporates Section 1346(b)(1)'s statement that the FTCA remedy is "[s]ubject to the provisions of chapter 171 of this title," and that, therefore, Section 2679(b)(2)(A)-a provision found in chap ter 171-directly limits Section 233(a)'s exclusivity. Pet. App. 59a-62a.6

Both courts erred in attaching such significance to 28 U.S.C. 2679(b)(2)(A). Section 2679(b)(2)(A) was added in 1988, eighteen years after Section 233(a)'s passage. It ex cluded constitutional torts only from the personal immunity that those same 1988 amendments to the FTCA newly con ferred. See 28 U.S.C. 2679(b)(1) (as amended by Westfall Act, Pub. L. No. 100-694, _ 5, 102 Stat. 4564). Nothing in the 1988 amendments to the FTCA or their legislative his tory purported to limit or otherwise have a bearing on the distinct (and more expansive) personal immunity conferred in separate statutes like Section 233(a). To the contrary, as the House Judiciary Committee Report noted, the 1988 amendments did "not change the law, as interpreted by the courts, with respect to the availability of other recognized causes of action, nor does it either expand or diminish rights established under other Federal statutes." H.R. Rep. No. 700, 100th Cong., 2d Sess. 7 (1988). Indeed, the absence in Section 233(a) of an exception for Bivens actions similar to that in Section 2679(b)(2)(A) seriously under mines the interpretation of the courts below.

To give operative legal effect here to Section 2679(b)(2)(A), a statute of general applicability, despite Section 233(a)'s unqualified mandate of exclusivity, would amount to an implied repeal of Section 233(a), a more spe cific statute. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007) ("normally the specific governs the general"). As this Court has noted, "repeals by implication are not favored." Randall v. Loftsgaarden, 478 U.S. 647, 661 (1986) (citation omitted).

The court of appeals also concluded that its decision was supported by Section 233's title in the public law ("Defense of certain malpractice and negligence suits"),7 on the ground that this title excludes constitutional torts. Pet. App. 22a-23a & n.11. The title of a statutory provision, however, cannot trump the unambiguous language of the statute's operative terms. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) ("[T]he title of a statute * * * [is] of use only when [it] shed[s] light on some ambig uous word or phrase.") (internal quotation marks and cita tion omitted; brackets in original). As discussed above, there is nothing ambiguous about Section 233(a). In any event, Section 233(a)'s title does not refer solely to actions sounding in common law or negligence. The term "mal practice," in particular, does not refer to a specific type of legal proceeding or claim but rather to the underlying conduct-i.e., the professional misfeasance that may give rise to a cause of action. See, e.g., Webster's Third New International Dictionary 1368 (1993) ("malpractice" is "a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury"). In addition, the title's ref erence to both "malpractice" and "negligence" suits strong ly suggests that "malpractice" refers to a species of tort beyond "negligence" and covers as well reckless or inten tional conduct-including deliberate indifference, the con stitutional standard for deficient medical care (Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

The court of appeals also reasoned that, because Section 233 was enacted in 1970, one year before the Court's deci sion in Bivens, Congress could not have had constitutional claims in mind. Pet. App. 21a. But that fact is irrelevant in light of Section 233(a)'s unqualified text stating that the FTCA remedy against the United States shall be the "ex clusive" remedy for injuries arising out of medical care pro vided by PHS personnel. Under the court of appeals' rea soning, no pre-Bivens statute-no matter how absolute its text or how categorical its intent-could create an exclusive remedy. Moreover, five years after Bivens, Congress passed the Gonzalez Act, Pub. L. No. 94-464, § 1(a), 90 Stat. 1985, which affords immunity to medical personnel in the armed forces and which, like Section 233(a), makes the FTCA remedy "exclusive of any other civil action or pro ceeding by reason of the same subject matter." 10 U.S.C. 1089(a). Congress relied on Section 233(a) as a model for that provision. See S. Rep. No. 1264, 94th Cong., 2d Sess. 8 (1976) ("legislation having a comparable effect presently exists for * * * medical personnel of the * * * Public Health Service"). As the accompanying Senate Report in dicated, "[t]his protection is designed to cover all potential financial liability." Id. at 2 (emphasis added). Thus, after Bivens, Congress reaffirmed the completeness of Section 233(a)'s immunity.8

2. The court of appeals' decision is also inconsistent with this Court's precedents. In Carlson, the Court held that the FTCA standing alone did not bar a Bivens claim against federal officials. 446 U.S. at 18-23. Carlson in volved the situation in which the relevant statute (the FTCA, as then written) was silent on the question whether remedies beyond an action against the United States were excluded.9 The Court stated that a Bivens claim is gener ally available unless (1) "special factors counsel[] hesitation in the absence of affirmative action by Congress;" or (2) "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective."10 Id. at 18-19. The Court in Carlson found neither condition satisfied there. In particular, the Court found nothing in the FTCA itself indicating that Congress meant to preclude Bivens actions; to the contrary, it stated that a post-Bivens amendment to the FTCA made it "crystal clear" that Con gress viewed the FTCA and Bivens as complementary. Id. at 19-20.

But Carlson did not involve Section 233(a)-an immu nity statute separate and apart from the FTCA that ex pressly made the FTCA remedy against the United States the "exclusive" remedy available for the type of injury as serted (personal injury arising from the provision of medi cal care by PHS personnel). As the Court in Carlson itself recognized, that distinction is dispositive. In rejecting the argument that the FTCA was the exclusive remedy for the constitutional tort alleged there, the Court in Carlson ex plained:

This conclusion is buttressed by the significant fact that Congress follows the practice of explicitly stating when it means to make FTCA an exclusive remedy. See 38 U.S.C. _ 4116(a), 42 U.S.C. _ 233(a), 42 U.S.C. _ 2458a, 10 U.S.C. _ 1089(a), and 22 U.S.C. _ 817(a) (malpractice by certain Government health personnel).

446 U.S. at 20 (emphasis added). By identifying Section 233(a) as a quintessential example of when Congress has made the FTCA an exclusive remedy, which precludes a Bivens action against individual federal officers and em ployees, Carlson strongly supports the government's inter pretation.11

Since Carlson, the Court has consistently expressed a strong reluctance to expand the availability of a Bivens cause of action. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) ("Because implied causes of action are dis favored, the Court has been reluctant to extend Bivens lia bility 'to any new context or new category of defendants.'") (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Wilkie v. Robbins, 127 S. Ct. 2588, 2597 (2007) (Bivens remedy "is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified."); Malesko, 534 U.S. at 68-69 ("Since Carlson, we have consistently refused to extend Bivens liability to any new context or new category of defendants. * * * So long as the plaintiff had an avenue for some re dress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability."); Schweiker v. Chilicky, 487 U.S. 412, 421-423 (1988) ("Our more recent decisions have responded cautiously to sugges tions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation."); Bush v. Lucas, 462 U.S. 367, 374-390 (1983) (refusing to provide Bivens-type remedy given alternative remedial scheme created by Congress).

Thus, as the D.C. Circuit has noted, "subsequent to Carlson, the Court clarified that there does not need to be an equally effective alternate remedy" in order to bar the fashioning of a cause of action under Bivens. Wilson v. Libby, 535 F.3d 697, 708 (2008), cert. denied, No. 08-1043 (June 22, 2009); see Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (en banc) ("As we read Chilicky and Bush together, then, courts must withhold their power to fashion damages remedies when Congress has put in place a com prehensive system to administer public rights, has 'not inad vertently' omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies."). Accordingly, the Court's pre cedents support the government's plain-text interpretation of Section 233(a) as precluding a Bivens remedy against individual PHS personnel, above and beyond the FTCA remedy against the United States that Congress expressly declared to be "exclusive."

CONCLUSION

The petitions for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
BARBARA L. HERWIG
HOWARD S. SCHER
Attorneys

DAVID S. CADE
Acting General Counsel
Department of Health and
Human Services

JULY 2009

1 The Secretary of HHS may also activate the National Disaster Medical System (NDMS) to provide health services to victims of a public-health emergency. 42 U.S.C. 300hh-11(a). The Secretary may appoint individuals to serve as intermittent NDMS personnel; such individuals are considered PHS employees for purposes of 42 U.S.C. 233(a). 42 U.S.C. 300hh-11(c).

2 All citations to "Pet. App." are to the appendix to the petition for a writ of certiorari filed in No. 08-1529.

3 The representative and heirs of Castaneda's estate have been sub stituted as plaintiffs. Pet. App. 8a.

4 In addition, all but two of the district court decisions of which the government is aware agree with the Second Circuit's conclusion. See, e.g., Brown v. McElroy, 160 F. Supp. 2d 699, 703 (S.D.N.Y. 2001); Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 299 (D. Conn. 2001); Semin ario Navarrete v. Vanyur, 110 F. Supp. 2d 605 (N.D. Ohio 2000); Lewis v. Sauvey, 708 F. Supp. 167, 168-169 (E.D. Mich. 1989); see also 08-1529 Pet. 6-7 n.4 (collecting unpublished district court decisions); but see Vinzant v. United States, No. CV 07-00024, 2008 WL 4414630, at * 4 n.3 (C.D. Cal. Sept. 24, 2008) (unpublished); McMullen v. Herschberger, No. 91-CIV-3235, 1993 WL 6219 (S.D.N.Y. Jan. 7, 1993) (unpublished; superseded by Cuoco).

5 The pre-Westfall Act provision read as follows:

The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

28 U.S.C. 2679(b) (1982).

6 Section 1346(b), part of the FTCA, provides in relevant part:

Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circum stances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. 1346(b)(1).

7 Section 233's title was changed to "Civil actions or proceedings against commissioned officers or employees" and the subtitle "Exclu siveness of remedy" was added to subsection (a) when the provision was codified in title 42. Compare Emergency Health Personnel Act of 1970, Pub. L. No. 91-623, _ 4, 84 Stat. 1870 (Dec. 31, 1970), with 42 U.S.C. 233 (1970). Title 42 has not, however, been enacted into positive law. See 1 U.S.C. 204(a) & note; United States Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 448 & n.3 (1993).

8 In any event, Congress would have been well aware of the concept of a constitutional tort when it enacted Section 233(a) in December 1970. See Bivens, 403 U.S. at 389 (noting that the Court's decision in Bell v. Hood, 327 U.S. 678 (1946), had held that a damage action against federal agents for constitutional violations stated a claim arising under the Constitution for purpose of federal question jurisdiction, but that Bell v. Hood had reserved judgment on whether the plaintiff had suc cessfully stated a cause of action). Indeed, the Court had granted cer tiorari in Bivens itself six months before Congress enacted Section 233(a). 399 U.S. 905 (1970).

9 As noted previously, Congress amended the FTCA in 1988 to ex empt Bivens actions from the newly conferred exclusive FTCA remedy against the United States for suits arising out of the conduct of federal employees in certain contexts. See 28 U.S.C. 2679(b)(2)(A); see also pp. 12-13, supra (discussing the Westfall Act).

10 The Court clarified that Congress did not have to recite any specific "magic words" to satisfy the alternative-remedy requirement. See Carlson, 446 U.S. at 19 n.5.

11 Although Congress's affirmative statement in Section 233(a) of the exclusivity of the FTCA remedy should resolve the matter, PHS's sta tus as a uniformed service (pp. 2-3, supra) and the important purpose of protecting PHS personnel in lieu of liability insurance (pp. 11-12, supra), combined with the FTCA's reticulated remedial scheme, consti tute "special factors counseling hesitation" against judicial creation of a cause of action under Bivens in this context.