Thursday, June 3, 2010


Associate Justice Sonia Sotomayor

This term President Obama's first pick to fill a vacancy on the Supreme Court, Associate Justice Sonia Sotomayor has delivered the opinion of the Supreme Court in six cases. Those cases are, by order of date released: Mohawk Industries v. Carpenter, Wood v. Allen, Milavetz, Gallop, & Milavetz P.A. v. United States, Hui v. Casteneda, and Carr v. United States.

Sotomayor delivered the opinion of a unanimous Supreme Court in Hui v. Casteneda. The facts of the case are gruesome and ultimately not closely related to the claims of the plaintiff in the District Court.  Remember that appellate courts deal with issues of law not issues of fact.

Francisco Casteneda was detained by Immigrations and Customs Enforcement (ICE) at San Diego. Details about Casteneda are abbreviated in the Court's opinion. Casteneda testified before the House Committee on Immigration, Citizenship, Refugees, Border Security, and International Law.

Casteneda came to America with his mother and siblings when he 10 years old. They came as refugees from El Salvador. His mother was working on finalizing the immigration status of her children when she died of cancer. The family was living in Los Angeles, California where Casteneda went to school until going to work at age 17. After his mother's death he worked in construction until he got involved with drugs. He was arrested, tried, convicted, served four months in California's custody and transferred to ICE.

Once in custody of ICE he immediately complained of a large lesion on his penis. Several requests were made to have a biopsy made, by Casteneda and medical professionals attending to him. ICE claimed the test was an elective procedure and refused to perform the biopsy. Finally the test was ordered. Rather than conduct the biopsy, Casteneda was released from custody. Subsequently it was determined he had penile cancer, the offending member was amputated, the cancer had spread, and Casteneda eventually died. He filed suit prior to his death. He was 35 years old.

Francisco Casteneda
 photo from

The chapter and verse on the graphic details are recorded at in an Amended Order Denying Hui's Motion to Dismiss by the district court.

If Health Care Reform for the American people looked anything like the government run health care offered, or more aptly - denied, by ICE then I'd have opposed it also. ICE did not run their health delivery system the way Medicare operates, by delivering health care. ICE ran its health care delivery system like they were an insurance company. This needs to change but quick!

Fortunately there is a pending bill before the House of Representatives that addresses this situation. H.R. 4470 the Strong STANDARDS Act, introduced by Representative Diane E. Watson, [D] Ca- 33, is pending before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

Representative Diane Watson

H.R. 4470 provides that detainees will receive appropriate levels of medical care, and that decisions regarding health care decisions will be made within a 72 hour period from when the request is made and communicated to the detainee immediately. The companion bill in the Senate is S. 1550, introduced by Senator Robert Menendez [D] NJ. A related bill is H.R. 4321, the CIR ASAP or the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009.

Back to Justice Sotomayor's opinion. This case is about whether Casteneda had a viable claim under the Court's ruling in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971) or whether relief was limited to the Federal Tort Claims Act (FTCA) 28 U.S.C. §§ 1346, 2671 ̶ 2680. If Biven's applied then Hui, the Public Health Service (PHS) physician ,could be personally liable.

If FTCA applies then relief can only be sought from the United States. Hui's claim of immunity is based on 42 U.S.C. §233(a) which provides an exclusive remedy for claims against PHS for the conduct of their commissioned officers or employees. That exclusive remedy is to sue only the United States.

The District Court denied Hui's Motion to Dismiss, the Ninth Circuit Court of Appeals agreed with the District Court. A conflict exists between the manner in which the Ninth Circuit decided the essential questions in the case and how the Second Circuit Court of Appeals ruled on these issues. The Supreme Court weighed in to resolve the conflict between the circuits.

Sotomayor's opinion interpreted 42 U.S.C. §233(a) while distinguishing the case of Carlson v. Green, 446 U. S. 14. For those who want to see a perfect example of statutory analysis, Sotomayor expertly interprets what the Congress meant by the term exclusive, demonstrated how subsequent legislation impacts the understanding of this section of the law, and how the statute comports with case law.

The Carlson case did not apply in this case because the petitioner in Carlson did not claim official immunity. Instead the Carlson court considered a different question, whether there had been an Eighth Amendment violation of the Cruel and Unusual Punishment Clause.

This opinion is likewise an example of judicial restraint. Do you remember all of those horrendous facts depicting the plight of Francisco Casteneda? Shouldn't the Court do something about that so others won't suffer injury at the hands of the government? Sotomayor reminds us that while something should be done, legislating does not belong within the confines of the Supreme Court.

Sotomayor says:
This case reached the Court on an Interlocutory Appeal, which means the proceedings in the District Court were put on hold until the Court made a final ruling on the question in this case.
In construing §233(a) in petitioners' (Hui) favor, we are mindful of the confines of our judicial role. Respondents' amici caution that providing special immunity for PHS personnel is contrary to the public interest. Respondents likewise contend that allowing Bivens claims against PHS personnel is necessary to ensure an adequate standard of care in federal detention facilities, and they further urge that permitting such actions would not endanger PHS’ institutional interests as it would simply place PHS personnel in the same position as other federal employees who perform similar functions. See Brief for Respondents52–55, 60–61. We are required, however, to read the statute according to its text. Because §233(a) plainly precludes a Bivens action against petitioners for the harms alleged in this case, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
So, is that it for Casteneda? Well, that depends on lawyering. Always read the footnotes. In this case footnote 6. "We express no opinion as to whether a Bivens remedy is otherwise available in these circumstances, as the question is not presented in this case." Did I just hear a door open?

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