Illustration by Phil Foster

March 2009
By Sandra Hernandez

It has been 37 years since the U.S. Supreme Court's landmark Bivens ruling cleared the way for individuals to sue federal employees for constitutional violations. But in all that time, few plaintiffs have prevailed. For example, only 4 of the 12,000 Bivens actions filed through 1985 were successfully litigated, according to a Georgetown Law Journal article. Now, however, things may be changing, thanks in no small way to Conal Doyle, a partner at Willoughby Doyle in Oakland.

For the past two years Doyle, 38, has waged an uphill battle on behalf of the family of Francisco Castaneda, a Salvadoran immigrant who said he repeatedly sought medical care while in federal immigration custody, but who later died of cancer. Doyle—in collaboration with Public Justice, a Washington, D.C.based public-interest law firm—sued individual doctors employed by the federal government for violating Castaneda's Fifth Amendment due process rights. Although lawyers for the government admitted that government negligence caused his death, they said Castaneda's family could sue only under the Federal Tort Claims Act (28 U.S.C. §§ 2671—2680), which caps monetary awards and has no provision for punitive damages or jury trials.

Doyle's breakthrough came in October when the Ninth U.S. Circuit Court of Appeals ruled that the family could sue individual public health officials using a Bivens action (Castaneda v. United States, 546 F.3d 682 (9th Cir. 2008)). Legal experts say that ruling is likely to encourage others to file similar claims.

"This decision should be read as an explicit acknowledgement of the Bivens action as a remedy," says John Nockleby, a professor at Loyola Law School in Los Angeles. "It means that public health officials involved in medical care for detained individuals have the potential for individual liability if they abuse their charges by ignoring important medical conditions."

Still, the Ninth Circuit opinion is at odds with an earlier decision by the Second Circuit in Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). In that case, the court ruled that public health doctors were immune from a Bivens action brought pro se by an inmate who said she was denied estrogen treatment while incarcerated. This split between the two circuits raises the possibility that the U.S. Supreme Court will step in. Meanwhile, the Ninth Circuit has denied federal officials' petition for an en banc review.

The Castaneda ruling comes amid increased enforcement of existing immigration laws, which has led to a huge surge in the number of foreign nationals held in federal detention centers. And since 2004, at least 71 foreign nationals have died while in federal immigration custody—many of them detained in California, according to published reports. Castaneda's lawsuit is one of three resulting cases involving Bivens actions that have been filed here.

"Bivens actions are very important in the immigration context," says Erwin Chemerinsky, a constitutional law scholar and dean of UC Irvine's nascent law school. "For people who are detained, who are suffering or dying, they have no other form of relief—they have no other recourse but Bivens."