Hui v. Castenda (08-1529) and Renico v. Lett (09–338)

May 10, 2010 Supreme Court Update

Greetings, Court fans!

President Obama has just announced his pick to replace retiring Justice Stevens - Elena Kagan. As the current Solicitor General, Kagan is the top appellate lawyer for the government. If confirmed, Kagan will be the only sitting Justice who has not served as a judge on a lower court. She would be only the fourth female Justice appointed to the Court. Kagan was confirmed as SG with relative ease, but this confirmation battle could be a lot tougher. We'll be watching!

Now, back to the business at hand. In two decisions last week, the Court instructed lower courts that their desire to redress wrongs visited upon individuals was limited, by statutory immunity for Public Health Service officials, in the case of Hui v. Castenda (08-1529), and by the narrow scope of habeas corpus review, in the case of Renico v. Lett (09–338).

In Hui, Public Health Service ("PHS") officials denied the respondent's repeated requests for a biopsy and treatment of what later proved to be a fatal testicular cancer during his detention by U.S. Immigration and Customs Enforcement. Before his death, respondent initiated a Bivens action against the PHS officials for deliberate indifference to his serious medical needs in violation of his rights under the Fifth, Eighth, and Fourteenth Amendments. The PHS officials asserted immunity from suit under 42 U.S.C. § 233(a), which provides, in relevant part, that "the remedy against the United States provided by [the Federal Tort Claims Act ('FTCA')] for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the [PHS} while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding." The FTCA authorizes the United States to substitute as the defendant when federal employees are sued for damages caused by them in the course of their employment. Unlike Bivens actions, FTCA actions do not allow for punitive damages or a jury trial. The Ninth Circuit affirmed the district court's judgment that § 233(a) did not preclude respondent's Bivens claims, citing the Court's decision in Carlson v. Green, that a Bivens remedy is unavailable only when an alternative remedy is both expressly declared to be a substitute and can be viewed as equally effective. A unanimous Court, led by Justice Sotomayor, reversed, holding that § 233(a) clearly precluded any actions involving PHS officials other than FTCA actions. Carlson was inapposite, as it addressed only the availability of a remedy, not the defendant's immunity, or amenability to suit in the first instance. Moreover, the fact that § 233(a) predated the Court's recognition of Bivens actions was irrelevant, because § 233(a)'s declaration that the FTCA remedy was "exclusive of any other civil action" was broad enough to "easily accommodate[] both known and unknown causes of action."

In Renico, a 6-3 majority reversed a grant of habeas corpus to the respondent, who argued that his retrial and conviction after mistrial violated the Double Jeopardy Clause. The Court used the occasion to emphasize that the relevant question on a habeas petition filed by a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is whether the state court decision was an unreasonable application of clearly established federal law, as determined by the Supreme Court—and not whether the state court made the right decision, or committed an abuse of discretion, or acted contrary to federal law as interpreted by a lower federal court. The respondent's first trial in Michigan for first degree murder ended in mistrial after jury deliberations of just a few hours over two days. The trial judge declared the mistrial after a short—and, by most accounts, imprecise and less than thorough—colloquy with the foreperson of the jury. The respondent was retried before a different judge and jury and convicted of second-degree murder. On direct appeal, the Michigan Court of Appeals threw out the conviction, holding that the State was barred from retrying the respondent because the first trial judge had announced a mistrial without any manifest necessity for doing so. The Michigan Supreme Court reversed, finding that the first trial judge had not abused her discretion in declaring mistrial. On habeas review, the federal district court and the Sixth Circuit sided with the respondent. Specifically, the Sixth Circuit found that the trial judge's errors, which effectively exerted inappropriate pressure on the foreperson to say that the jury would not be able to reach a verdict, were so egregious that the Michigan Supreme Court's finding of no abuse of discretion was objectively unreasonable.

The Court, led by the Chief, reversed. The Court observed that the appropriate question on federal habeas review was not whether the trial judge should have declared a mistrial, or even whether it was an abuse of discretion for her to have done so, but rather, whether the Michigan Supreme Court's determination that there was no abuse of discretion was "an unreasonable application of . . . clearly established Federal law." And, "the more general the rule at issue—and thus the greater the potential for reasoned disagreement among fair-minded judges—the more leeway state courts have in reaching outcomes in case-by-case determinations." Here, clearly established federal law, as set forth by the Court in United States v. Perez, provided that a defendant may be retried following the discharge of a deadlocked jury, so long as the trial court exercised its sound discretion in concluding that the jury was deadlocked and thus that there was a "manifest necessity" for a mistrial. The decision whether to grant a mistrial was reserved to the broad discretion of the trial judge. The Court had never required trial judges to wait until the jury had deliberated for a minimum period of time, to question the jurors individually, to consult with or obtain the consent of counsel, to consider any other means of breaking an impasse, or to make explicit findings of "manifest necessity" for a mistrial on the record. Given this state of the law, the Court found that the Michigan Supreme Court's reading of the trial court record, while by no means the only plausible reading, or even the correct reading, was not an unreasonable reading. Thus, the Sixth Circuit's ruling in respondent's favor "failed to grant the Michigan courts the dual layers of deference required by AEDPA and [the Court's] double jeopardy precedents." The Court further admonished the Sixth Circuit for relying in part on that Circuit's own gloss on federal law, because only "clearly established Federal law, as determined by the Supreme Court," can serve to authorize habeas relief.

Justice Stevens, joined by Justice Sotomayor, and by Justice Breyer in part, dissented. Justice Stevens described the origins of "a defendant's valued right to have his trial completed by a particular tribunal," reviewed the events leading up to the first trial judge's declaration of mistrial, and found that the trial judge "did not fully appreciate the scope or significance of the ancient right at stake." In the dissenters' view, the trial judge wrongfully exerted pressure so as to prevent the jury from reaching a verdict, cutting off deliberations well before the point when it was clear they would no longer be fruitful. In fact, the judge's actions were contrary to standard trial-court guidelines. Given the trial judge's clear error, the Michigan Supreme Court's decision supporting it was also error. In the final part of the dissent, which Justice Breyer did not join, Justice Stevens took issue with the majority's invocation of "deference" in describing the standard for federal habeas review. Not only does the AEDPA never use the term deference, legislative history suggests that Congress meant to preserve robust federal-court review. Justice Stevens concluded: "If a federal judge were firmly convinced that such a decision were wrong, then in my view not only would he have no statutory duty to uphold it, but he might also have a constitutional obligation to reverse it. And regardless of how one conceptualizes the distinction between an incorrect and an 'unreasonable' state-court ruling under [the AEDPA], one must always determine whether the ruling was wrong to be able to test the magnitude of any error. Substantive and methodological considerations compel federal courts to give habeas claims a full, independent review—and then to decide for themselves. Even under AEDPA, there is no escaping the burden of judgment."

Now you can get back to reading the blogs about the prospects for Kagan's confirmation.


From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400