Castaneda v. Henneford ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANIRA CASTANEDA, as personal 
representative of Estate of
Francisco Castaneda; VANESSA
CASTANEDA, as heir and beneficiary
of the Estate, by and through her
mother and Guardian Ad Litem
Lucia Pelayo,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA;
GEORGE MOLINAR, in his individual
capacity; CLAUDIA MAZUR, in her No. 08-55684
individual capacity; DANIEL
D.C. No.
HUNTING, M.D.; S. PASHA, in his/
her individual capacity; M.  2:07-cv-07241-
DDP-JC
SHERIDAN, in his/her individual
capacity, OPINION
Defendants,
and
CHRIS HENNEFORD, in his individual
capacity; GENE MIGLIACCIO, in his
individual capacity; TIMOTHY
SHACK, M.D. in his individual
capacity; ESTHER HUI, M.D., in her
individual capacity; STEPHEN
GONSALVES, in his individual
capacity,
Defendants-Appellants.

13983
13984 CASTANEDA v. HENNEFORD
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
August 15, 200—Pasadena, California
Filed October 2, 2008
Before: Stephen Reinhardt, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
CASTANEDA v. HENNEFORD 13987
COUNSEL
John K. Rubiner, Bird, Marella, Boxer, Wolpert, Nessim,
Drooks & Lincenberg, P.C., Los Angeles, California; Mat-
thew S. Freedus and Robert Graham, Feldesman Tucker
Leifer Fidell LLP, Washington, D.C., for the defendants-
appellants.
Adele P. Kimmel, Public Justice, P.C., Washington, D.C.;
Conal Doyle, Willoughby Doyle LLP, Oakland, California,
for the plaintiffs-appellees.
Jeffrey Clair, United States Department of Justice, Civil Divi-
sion, Washington, D.C., for the amicus.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
This appeal requires us to decide whether 42 U.S.C.
§ 233(a) establishes the Federal Tort Claims Act (FTCA) as
the exclusive remedy for constitutional violations committed
13988 CASTANEDA v. HENNEFORD
by officers and employees of the Public Health Service
(PHS), precluding the cause of action recognized in Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcot-
ics, 403 U.S. 388 (1971). We hold that it does not.
Factual and Procedural Background1
A. Factual Background
Decedent Francisco Castaneda was imprisoned by the State
of California following a December 6, 2005 criminal convic-
tion and held in the custody of the California Department of
Corrections (DOC) until his early release date, March 26,
2006. Several times during his approximately three-and-a-
half-month incarceration, Castaneda met with DOC medical
personnel regarding a white-and-yellow raised lesion, then
measuring approximately two centimeters square, on the fore-
skin of his penis. Twice, in late December and late February,
DOC medical providers recommended that Castaneda be
referred to a urologist, and that he undergo a biopsy to rule
out the possibility of squamous cell cancer. This referral never
occurred during Castaneda’s detention by DOC, and on
March 27, Castaneda was transferred to the custody of Immi-
gration and Customs Enforcement (ICE) at the San Diego
Correctional Facility (SDCF).
Immediately upon his transfer, Castaneda brought his con-
dition to the attention of the SDCF medical personnel, mem-
bers of the Division of Immigration Health Services (DIHS).2
1
All facts, unless otherwise indicated, are drawn from Plaintiffs’ Third
Amended Complaint. On a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), we assume the truth of all allegations in the com-
plaint. Savage v. Glendale Union High Sch., Dist. No. 205, 343 F.3d 1036,
1039 n.1 (9th Cir. 2003).
2
DIHS, a division of the Department of Health and Human Services, “is
responsible for provision of direct primary health care at all ICE Service
Processing Centers and selected contract detention facilities throughout
the Nation.” Statement of Organization, Functions and Delegations of
Authority, 69 Fed. Reg. 56,433, 56,436 (Sept. 21, 2004).
CASTANEDA v. HENNEFORD 13989
By this time, the lesion on his penis had become painful,
growing in size, bleeding, and exuding discharge. Castaneda
met with PHS physician’s assistant Lieutenant Anthony
Walker,3 who recommended a urology consult and a biopsy
“ASAP,” noting both Castaneda’s history of genital warts and
his family history of cancer (his mother died at age 39 of pan-
creatic cancer). That consultation with an outside urologist,
John R. Wilkinson, M.D., did not occur until June 7, 2006.
Dr. Wilkinson “agree[d] that” Castaneda’s symptoms “re-
quire[d] urgent urologic assessment of biopsy and definitive
treatment,” citing the potential for “considerable morbidity
from even benign lesions which are not promptly and appro-
priately treated.” Although Dr. Wilkinson’s notes indicate that
he “offered to admit [Castaneda] for a urologic consultation
and biopsy,” DIHS physicians indicated their “wish to pursue
outpatient biopsy which would be more cost effective.” That
biopsy, however, did not occur. Instead, Plaintiffs allege that
DIHS officials deemed the biopsy, a standard diagnostic pro-
cedure to detect a life-threatening disease,4 to be an “elective
outpatient procedure” and declined to approve it.
3
The Public Health Service is one of the seven uniformed services of the
United States. 42 U.S.C. § 201(p). Organized along military lines, the PHS
is staffed by commissioned officers who maintain a statutorily defined
military rank equivalent. 42 U.S.C. § 207. Although the statute defines
PHS rank by equivalent U.S. Army rank (from Second Lieutenant to
Major General for the Surgeon General), id., PHS commissioned officers
are referred to by their equivalent U.S. Navy rank (from Ensign to Vice
Admiral for the Surgeon General), and wear the corresponding Navy uni-
form and insignia. See U.S. Public Health Service Commissioned Corps,
U.S. Dep’t of Health & Human Serv., About the Commissioned Corps:
Uniforms (June 24, 2008), http://www.usphs.gov/AboutUs/uniforms.aspx
(last accessed August 18, 2008). Although ordinarily a part of the Depart-
ment of Health and Human Services, the PHS, like the Coast Guard, may
be called into military service in times of war or national emergency,
whereupon its personnel become subject to the Uniform Code of Military
Justice. 42 U.S.C. § 217.
4
In 2008, an estimated 1250 men in the United States will develop
penile cancer and 290 men will die of it. Am. Cancer Soc’y, Cancer Facts
& Figures: 2008, available at http://www.cancer.org/downloads/STT/
13990 CASTANEDA v. HENNEFORD
Castaneda’s symptoms grew worse and worse. On June 12,
he filed a grievance report, asking for the surgery recom-
mended by Dr. Wilkinson and stating that he was “in a con-
siderable amount of pain and . . . in desperate need of medical
attention.” On June 23, he reported to Lt. Walker that his
lesion was emitting a foul odor, continued to leak pus, and
had increased in size, pressing further on his penis and
increasing his discomfort. He complained of increased swell-
ing, bleeding from the foreskin, and difficulty in urination. On
July 13, instead of scheduling a biopsy, ICE brought Cas-
taneda to the emergency room at Scripps Mercy Chula Vista.
The emergency room physician noted the fungating lesion5 on
Castaneda’s penis and referred Castaneda to urologist Daniel
Hunting, M.D., who, following a brief examination, deter-
mined that the lesion was “probably condyloma,” or genital
warts. Dr. Hunting referred Castaneda back to his “primary
treating urologist” at DIHS. Four days later, Lt. Walker noted
that the lesion continued to grow. On July 26, another physi-
cian’s assistant explained to Castaneda that “while a surgical
procedure might be recommended long-term, that does not
imply that the federal government is obligated to provide that
surgery if the condition is not threatening to life, limb or eye-
sight.”
2008CAFFfinalsecured.pdf. Most penile cancers are, like Castaneda’s,
“squamous cell carcinomas (cancer that begins in flat cells lining the
penis),” Nat’l Cancer Inst., U.S. Nat’l Inst. of Health, Penile Cancer,
http://www.cancer.gov/cancertopics/types/penile (last accessed August 18,
2008), which are typically diagnosed via one of several types of skin
biopsy, Am. Cancer Soc’y, Skin Cancer — Basal and Squamous Cell:
How Is Squamous and Basal Cell Skin Cancer Diagnosed? (June 10,
2008), http://www.cancer.org/docroot/CRI/content/CRI_2_4_3X_How_
is_skin_cancer_diagnosed_51.asp (last accessed August 18, 2008).
5
See Nat’l Cancer Inst., U.S. Nat’l Inst. of Health, Dictionary of Cancer
Terms, http://www.cancer.gov/templates/db_alpha.aspx?CdrID=367427
(last accessed August 18, 2008) (defining “fungating lesion” as a “type of
skin lesion that is marked by ulcerations (breaks on the skin or surface of
an organ) and necrosis (death of living tissue) and that usually has a bad
smell”).
CASTANEDA v. HENNEFORD 13991
On August 22, Castaneda saw another urologist, Robert
Masters, M.D. Dr. Masters concluded that Castaneda had gen-
ital warts and was in need of circumcision, which would both
relieve the “ongoing medical side effects of the lesion includ-
ing infection and bleeding” and provide a biopsy for further
analysis. This treatment was again denied as “elective in
nature.” The following month, Lt. Walker noticed “another
condyloma type lesion [ ] forming and foul odor emitting
from uncircumcised area with mushroomed wart.” On
November 14, DIHS noted that Castaneda’s “symptoms have
worsened. States he feels a constant pinching pain, especially
at night. States he constantly has blood and discharge on his
shorts . . . . Also complains of a swollen rectum which he
states makes bowel movements hard.” Castaneda was pre-
scribed laxatives. The following day, Castaneda complained
that the lesion was growing, that he could not stand and uri-
nate because the urine “sprays everywhere,” and that the
lesion continued to leak blood and pus, continually staining
his sheets and underwear. DHIS responded by increasing Cas-
taneda’s weekly allotment of boxer shorts.
On November 17, Castaneda was transferred from San
Diego to ICE’s San Pedro Service Processing Center. The
“Medical Summary of Federal Prisoner/Alien in Transit” filed
in connection with this transfer listed no “current medical
problems.” Nevertheless, an examination at the Los Angeles/
Santa Ana Staging area noted the presence of “other penile
anomalies.”
In early December, Castaneda’s counsel from the ACLU
became involved in his case, sending multiple letters notify-
ing ICE and Health Service Administration officials of Cas-
taneda’s medical problems and urging that he receive the
biopsy he had been prescribed almost a year earlier. Appar-
ently in response, Castaneda was sent to yet another urologist,
Lawrence S. Greenberg, M.D, on December 14. Dr. Green-
berg described Castaneda’s penis as a “mess,” and stated that
he required surgery. The ACLU continued to demand treat-
13992 CASTANEDA v. HENNEFORD
ment, to no apparent avail. Forty-one days later, January 25,
2007, Castaneda was seen by Asghar Askari, M.D., who diag-
nosed a fungating penile lesion that was “most likely penile
cancer” and, once again, ordered a biopsy.
On February 5, rather than provide the biopsy prescribed by
Doctors Wilkinson, Masters, Greenberg, and Askari, ICE
instead released Castaneda, who then proceeded on his own
to the emergency room of Harbor-UCLA Hospital in Los
Angeles. He was scheduled for a biopsy on February 12,
which confirmed that Castaneda was suffering from squa-
mous cell carcinoma of the penis. On February 14, Castane-
da’s penis was amputated, leaving only a two-centimeter
stump.
The amputation did not occur in time to save Castaneda’s
life. In addition to creating a 4.5 centimeter-deep tumor in his
penis, the cancer had metastasized to his lymph nodes and
throughout his body. Castaneda received chemotherapy
throughout 2007, but the treatment was ultimately unsuccess-
ful. Francisco Castaneda died February 16, 2008. He was
thirty-six years old.
B. Procedural Background
This action began November 2, 2007, as a suit brought by
Castaneda against the United States and a number of state and
federal officials and medical personnel. Castaneda alleged
inadequate medical care while in DOC and ICE custody that
amounted to malpractice, and a violation of his constitutional
rights. He asserted various malpractice and negligence claims
against the United States under the FTCA and against the
individual defendants under California law, and asserted con-
stitutional claims (violations of the Fifth, Eighth, and Four-
teenth Amendments) against the individual defendants under
Bivens and 42 U.S.C. § 1983. He sought compensatory and
punitive damages and declaratory relief. Following Castane-
da’s death, Plaintiffs-Appellants Yanira Castaneda, Castane-
CASTANEDA v. HENNEFORD 13993
da’s sister and his estate’s personal representative, and
Vanessa Castaneda, Castaneda’s daughter and sole heir, filed
an amended complaint, substituting themselves as plaintiffs
and adding various claims under California’s Wrongful Death
Statute, Cal. Code Civ. Proc. § 377.60 et seq., and Survival
Statute, Cal. Code Civ. Proc. § 377.20 et seq.
On January 14, 2008, Defendants-Appellants Commander
Chris Henneford, Captain Eugene A. Migliaccio, and Com-
mander Stephen Gonsalves, all commissioned officers of the
PHS, and Defendants-Appellants Timothy Shack, M.D., and
Esther Hui, M.D., both civilian employees of PHS (collec-
tively, PHS Defendants), moved to dismiss the case for lack
of subject matter jurisdiction under Federal Rule of Civil Pro-
cedure 12(b)(1). The PHS Defendants argued that they had
absolute immunity from Bivens actions because 42 U.S.C.
§ 233(a) provides that an FTCA suit against the United States
is the exclusive remedy for tortious acts committed by PHS
officers and employees in the course of their medical duties.
On March 11, the district court denied the motion to dis-
miss, holding that the plain language of § 233(a) “express[ly]
preserv[es]” plaintiffs’ constitutional claims. Castaneda v.
United States, 538 F. Supp. 2d 1279, 1290 (C.D. Cal. 2008).
Rejecting the reasoning of the Second Circuit’s decision in
Cuoco v. Moritsugu, 222 F.3d 99, 107-09 (2d Cir. 2000), the
district court held that § 233(a), through its reference to 28
U.S.C. § 1346(b), incorporated by reference the entirety of the
FTCA, including the general exclusivity provision of 28
U.S.C. § 2679(b), which expressly exempts constitutional
claims from the FTCA exclusivity, 28 U.S.C.
§ 2679(b)(2)(A). Castaneda, 538 F. Supp. 2d at 1288-91. It
also held that the legislative history of both § 233(a) and
§ 2679(b) supported the conclusion that § 233(a) was not
intended to preempt Bivens actions. Id. at 1291-95. The PHS
Defendants timely appealed.
13994 CASTANEDA v. HENNEFORD
Jurisdiction and Standard of Review
District court orders denying absolute immunity constitute
“final decisions” for the purposes of 28 U.S.C. § 1291, grant-
ing us jurisdiction over this interlocutory appeal. Mitchell v.
Forsyth, 472 U.S. 511, 524-27 (1985); Trevino v. Gates, 23
F.3d 1480, 1481 (9th Cir. 1994). We review such decisions de
novo. Trevino, 23 F.3d at 1482.
Discussion
[1] In Bivens, the Supreme Court established that victims
of constitutional violations by federal agents have a cause of
action under the Constitution to recover damages. As the
Supreme Court later clarified, however, this remedy has lim-
its:
Such a cause of action may be defeated in a particu-
lar case, however, in two situations. The first is when
defendants demonstrate “special factors counselling
hesitation in the absence of affirmative action by
Congress.” The second is when defendants show that
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.
Carlson v. Green, 446 U.S. 14, 18-19 (1980) (internal cita-
tions omitted) (quoting Bivens, 403 U.S. at 396). Under Carl-
son, then, a Bivens remedy will not lie (1) when an alternative
remedy is both (a) “explicitly declared to be a substitute” and
(b) is “viewed as equally effective,” or (2) in the presence of
“special factors” which militate against a direct recovery rem-
edy.
Carlson provides the starting point for our analysis in this
case. The facts and posture of Carlson closely resembled
those here: in Carlson, the plaintiff, the mother of a deceased
CASTANEDA v. HENNEFORD 13995
federal prisoner, brought suit against federal prison officials
on behalf of her son’s estate, alleging Eighth Amendment vio-
lations. Specifically, she alleged that the federal officials’
deliberate indifference to his serious medical needs, amount-
ing to an Eighth Amendment violation, caused the decedent,
a chronic asthmatic, to die of respiratory failure. Id. at 16 &
n.1. The defendants argued that the FTCA provided a substi-
tute remedy preempting one under Bivens. After noting the
two ways in which a Bivens remedy can be preempted, the
Court held that “[n]either situation obtains in this case.” Id. at
19. First, the Court held that “the case involve[d] no special
factors counseling hesitation.” Id. Second, there was no con-
gressional declaration foreclosing the Bivens claim and mak-
ing the FTCA exclusive. No statute declared the FTCA to be
a substitute for Bivens, and subsequent legislative history
“made it crystal clear that Congress views FTCA and Bivens
as parallel, complementary causes of action.” Id. at 20. The
Court further noted four ways in which the remedy in the
FTCA could not be seen as an “equally effective” substitute
for a Bivens remedy. Id. at 20-23; see also infra pp. 15-17.
In this case, too, we have an individual who has died, alleg-
edly due to the deliberate indifference of the federal officials
charged with his health and safety. Once again, the decedent’s
survivors bring a Bivens action, alleging Fifth and Eighth
Amendment violations.6 And, once again, the officials argue
6
Unlike the prisoner in Carlson, Castaneda was an immigration
detainee, not a criminal convict. The argument below framed the issue in
terms of a violation of the Eighth Amendment, Castaneda, 538 F. Supp.
2d at 1286, and the district court therefore ruled accordingly, id. at 1295-
98. Castaneda’s criminal sentence was complete by the time of his transfer
to ICE, and his civil detention in SDCF and San Jose was not “punish-
ment.” Plaintiffs’ claims against the PHS Defendants, strictly speaking,
are therefore rooted in the Fifth Amendment’s Due Process clause, not the
Eighth Amendment’s prohibition on cruel and unusual punishment. See
Bell v. Wolfish, 441 U.S. 520, 536-37 & n.16 (1979). In this case, how-
ever, that formal distinction is irrelevant: “[w]ith regard to medical needs,
the due process clause imposes, at a minimum, the same duty the Eighth
13996 CASTANEDA v. HENNEFORD
that the FTCA preempts any Bivens remedy. The difference
is that this time, they do so on the basis of 42 U.S.C. § 233(a),
which provides a remedy under the FTCA, rather than on the
basis of the FTCA itself.
42 U.S.C. § 233(a) provides:
The remedy against the United States provided by
sections 1346(b) and 2672 of Title 28 . . . 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 Public Health Service while acting
within the scope of his office or employment, shall
be exclusive of any other civil action or proceeding
by reason of the same subject-matter against the offi-
cer or employee . . . whose act or omission gave rise
to the claim.
There is no dispute that the PHS Defendants were, during all
relevant times, commissioned officers or employees of the
Public Health Service, and were acting within the scope of
their offices or employment. The PHS Defendants claim that
the exclusivity provision in § 233(a) acts either to expressly
substitute the FTCA for a Bivens remedy, or as a “special fac-
tor” that would preclude the Bivens remedy. We examine each
of these arguments in turn.
Amendment imposes.” Gibson v. County of Washoe, 290 F.3d 1175, 1187
(9th Cir. 2002).
Plaintiffs additionally claim a violation of the equal protection compo-
nent of the Due Process Clause of the Fifth Amendment, alleging that Cas-
taneda was invidiously denied medical care due to his immigration status
and without a rational basis. Carlson, too, involved an equal protection
claim: “that petitioners[’] . . . indifference was in part attributable to racial
prejudice.” 446 U.S. at 16 n.1; see also Davis v. Passman, 442 U.S. 228(1979) (Bivens relief is available to enforce the equal protection compo-
nent of the Fifth Amendment’s Due Process Clause).
CASTANEDA v. HENNEFORD 13997
A. Does § 233(a) Expressly Establish the FTCA as a
Substitute Remedy for Bivens?
As noted above, Carlson established a two-part test for
express Bivens preemption: Congress must provide an alterna-
tive remedy that is “explicitly declared to be a substitute for”
Bivens (rather than a complement to it) and Congress must
view that remedy as “equally effective.” 446 U.S. at 18-19.
Both these elements must be present for a court to find the
Bivens remedy expressly displaced. We first address the
“equally effective” question discussed in Carlson.
1. “Viewed as Equally Effective”
[2] The alternative remedy in Carlson, like the remedy
here, was the FTCA. In Carlson, the Supreme Court held that
Congress does not view the FTCA as providing relief that is
“equally effective” as Bivens relief. There is no basis here on
which to distinguish that holding from the case before us; if
anything, the FTCA is a less effective remedy now than it was
when Carlson was decided.
Carlson enumerated four factors, “each suggesting that the
Bivens remedy is more effective than the FTCA remedy.” 446
U.S. at 20. First, Bivens damages are awarded against individ-
ual defendants, while the FTCA damages are recovered from
the United States. “Because the Bivens remedy is recoverable
against individuals, it is a more effective deterrent than the
FTCA remedy against the United States. It is almost axiom-
atic that the threat of damages has a deterrent effect, particu-
larly so when the individual official faces personal financial
liability.” Id. at 21 (citations omitted). Second, punitive dam-
ages are not available under the FTCA, further undermining
its deterrent effect. “Punitive damages are ‘a particular reme-
dial mechanism normally available in the federal courts,’ and
are especially appropriate to redress the violation by a Gov-
ernment official of a citizen’s constitutional rights. . . . But
punitive damages in an FTCA suit are statutorily prohibited.
13998 CASTANEDA v. HENNEFORD
28 U.S.C. § 2674. Thus FTCA is that much less effective than
a Bivens action as a deterrent to unconstitutional acts.” Id. at
22 (quoting Bivens, 403 U.S. at 397) (citations omitted).
Third, Bivens cases may be tried before a jury; FTCA cases
cannot. Id. at 22-23. “Just as suffrage ensures the people’s
ultimate control in the legislative and executive branches, jury
trial is meant to ensure their control in the judiciary.” Blakely
v. Washington, 542 U.S. 296, 306 (2004). This is particularly
important in the context of constitutional torts, where the
actions of the government itself are on trial. Moreover, juries
are well-suited to the task of apportioning damages. As Con-
gress noted in explaining the need for jury trials under Title
VII, “[j]uries are fully capable of determining whether an
award of damages is appropriate and if so, how large it must
be to compensate the plaintiff adequately and to deter future
repetition of the prohibited conduct.” H.R. Rep. No. 102-40,
at 72 (1991). Lastly, the FTCA’s limitation that the United
States may be held liable “in accordance with the law of the
place where the act or omission occurred,” 28 U.S.C.
§ 1346(b)(1), would violate the policy “obvious[ly]” motivat-
ing Bivens “that the liability of federal officials for violations
of citizens’ constitutional rights should be governed by uni-
form rules.” Carlson, 446 U.S. at 23. This last factor was
especially important to the Supreme Court. In Carlson, the
plaintiff’s action would have failed under the survivorship law
of the forum state, Indiana. Id. at 17 n.4.7 The Court empha-
sized that “only a uniform federal rule of survivorship will
suffice to redress the constitutional deprivation here alleged
and to protect against repetition of such conduct.” Id. at 23.
7
In particular, Indiana law provided that a personal injury claim did not
survive where the acts complained of caused the victim’s death. Ind. Code
§ 34-1-1-1 (1976). Moreover, where the decedent was not survived by a
spouse or dependent next of kin, Indiana’s wrongful death statute limited
recovery to those expenses incurred in connection with the death itself.
Ind. Code § 34-1-1-2 (1976). Indeed, the district court held that, because
of the limitations in those two statutes, the plaintiff (the decedent’s
mother) could not even meet the amount-in-controversy then required by
28 U.S.C. § 1331(a), and dismissed the case for lack of subject matter
jurisdiction. Carlson, 446 U.S. at 17-18 & n.4.
CASTANEDA v. HENNEFORD 13999
None of the factors listed by the Supreme Court is any less
present in the case before us. The FTCA would be no more
a deterrent here than it was in Carlson, because FTCA dam-
ages remain recoverable only against the United States and
because punitive damages remain unavailable. 28 U.S.C.
§ 2674. Likewise, an FTCA plaintiff still cannot demand a
jury trial. 28 U.S.C. § 2402. Moreover, the FTCA remedy
continues to depend on the “law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1).
Nowhere does this reliance on state law present a greater
threat to uniformity of remedy than in actions “for damage for
personal injury, including death, resulting from the perfor-
mance of medical, surgical, dental, or related functions.” 28
U.S.C. § 322(a). Since Carlson was decided in 1980, the
United States has witnessed a revolution in state tort law,
focusing on medical malpractice in particular. Reacting to a
“crisis” in medical malpractice insurance costs and availabil-
ity, many states began in the mid-1980s to enact legislative
changes designed both to deter frivolous lawsuits and to limit
the size of damage awards even in meritorious ones. See
generally Cong. Budget Office, U.S. Cong., The Effects
of Tort Reform: Evidence from the States 2-3 (2004),
available at http://www.cbo.gov/ftpdocs/55xx/doc5549/
Report.pdf. Twenty-four states, for example, have abolished
the collateral-source rule, often permitting collateral-source
payments to offset damage awards. Am. Tort Reform Ass’n,
Tort Reform Record 14-18 (July 1, 2008), available at http://
www.atra.org/files.cgi/8291_Record_07-08.pdf. Similarly,
twenty-three states have placed statutory limits on non-
economic damages, many limiting medical malpractice
awards in particular. Id. at 32-39. Statutory damage caps for
malpractice can range from $250,000, see, e.g., Cal. Civ.
Code § 3333.2(b), to $1.25 million, Ind. Code § 34-18-14-
3(a); see also Haw. Rev. Stat. § 663-8.7 ($375,000); Fla. Stat.
§ 766.118(2) ($500,000); Kan. Stat. Ann. § 60-3407(a) ($1
million). Other states have introduced procedural innovations
to screen out meritless suits and encourage early settlement,
14000 CASTANEDA v. HENNEFORD
such as requiring that plaintiffs, prior to suit, obtain expert
certificates of merits, e.g., Va. Code § 8.01-20.1; W. Va.
Code § 55-7B-6, or submit their claims to medical screening
panels, e.g., Alaska Stat. § 09.55.536; Haw. Rev. Stat. § 671-
12, or participate in other compulsory alternative dispute reso-
lution bodies, e.g., Md. Code, Cts. & Jud. Proc. § 3-2A-04;
Wash. Rev. Code § 7.70.100.8 Were Plaintiffs’ sole remedy
for the alleged mistreatment and death of Castaneda a com-
mon law malpractice suit against the United States, as the
PHS Defendants argue, the damages they could recover, and
the quasi-substantive procedural hurdles they would have to
surmount to bring suit in the first place, would vary from state
to state even more now than in 1980.
[3] The Supreme Court has never revisited its conclusion
that the FTCA’s dependence on “the vagaries of the laws of
the several States” prevents it from serving as an equally
effective remedy for constitutional violations. Carlson, 446
U.S. at 23. While the Supreme Court has, in subsequent years,
found that the congressional institution of other remedial
schemes that are not fully compensatory may be a “special
factor” precluding Bivens relief, see Schweiker v. Chilicky,
487 U.S. 412 (1988) (Social Security); Bush v. Lucas, 462
U.S. 367 (1983) (federal civil service); see also Adams v.
Johnson, 355 F.3d 1179 (9th Cir. 2004) (federal income tax),
those cases cannot serve as a basis for distinguishing the
Supreme Court’s explicit determination in Carlson that the
very remedy at issue here, the FTCA, is not viewed by Con-
gress as equally effective as Bivens. Moreover, every one of
those subsequently examined schemes, however otherwise
undercompensatory, nonetheless provided a uniform remedy
8
We express no opinion here as to whether or how these or similar pro-
cedural requirements would apply in an FTCA suit against the United
States, although we note that several district courts have found certain of
these statutes to apply to FTCA actions. See, e.g., Stanley v. United States,
321 F. Supp. 2d 805, 807-08 (N.D. W. Va. 2004); Hill v. United States,
751 F. Supp. 909, 910 (D. Colo. 1990); Oslund v. United States, 701 F.
Supp. 710, 712-14 (D. Minn. 1988).
CASTANEDA v. HENNEFORD 14001
across the United States. Carlson’s holding that the FTCA, in
particular, is not “equally effective” because of its lack of
deterrent effect, its absence of a right to a jury trial, and its
dependence on variable state law remains binding on this
court, and, accordingly, following Carlson, we hold that
§ 233(a) does not preempt Bivens relief.
2. “Explicitly Declared To Be a Substitute”
[4] A careful analysis of the first prong of the Carlson “ex-
plicit[ ] . . . substitute . . . and . . . equally effective [remedy]”
standard, Carlson, 446 U.S. at 18-19, also compels the con-
clusion that § 233(a) does not preclude relief under Bivens.
The PHS Defendants maintain that, in § 233(a), Congress
“explicitly declared [the FTCA] to be a substitute for recovery
directly under the Constitution.” Id. Specifically, the PHS
Defendants urge that we read § 233(a)’s command that the
FTCA remedy “shall be exclusive of any other civil action or
proceeding” to necessarily include actions or proceedings
seeking a Bivens remedy. We decline to do so.
a. Text
[5] The plain text alone of § 233 makes it clear that Con-
gress did not explicitly declare § 233(a) to be a substitute for
a Bivens action. The section does not mention the Constitution
or recovery thereunder, let alone “explicitly declare[ ]” itself
to be a “substitute for recovery directly under the Constitu-
tion.” Carlson, 446 U.S. at 18-19.
[6] Moreover, § 233(a) cannot be read as an expression of
Congress’s desire to substitute the FTCA in place of Bivens
relief for the simple reason that Bivens relief did not exist
when § 233(a) was enacted. See Emergency Health Personnel
Act of 1970, Pub. L. No. 91-623, 84 Stat. 1868 (1970);
Bivens, 403 U.S. 388 (1971). Carlson requires an intention to
substitute one form of relief for another, but substitution does
not occur, and is in fact impossible, if the person or thing
14002 CASTANEDA v. HENNEFORD
being “replaced” does not exist. Because Bivens relief did not
exist at the time of § 233(a)’s enactment, as well as because
there is no mention of constitutional torts in its text, we can-
not read the text of § 233(a) as a declaration of Congress’s
intent to substitute the FTCA for Bivens relief.
b. History
[7] Our conclusion that § 233(a) does not constitute an
explicit declaration that the FTCA is a substitute for Bivens
actions is supported by the history of the legislation in ques-
tion. That history demonstrates that the exclusivity provision
of § 233(a) was intended to preempt a particular set of tort
law claims related to medical malpractice.
Although codification can produce the illusion of a time-
less, unitary law, statutes are passed in particular historic and
legal contexts and their language must be read and interpreted
with that context in mind. “[O]ur evaluation of congressional
action in 197[0] must take into account its contemporary legal
context.”9 Cannon v. Univ. of Chicago, 441 U.S. 677, 698-99
(1979); see also Se. Cmty. Coll. v. Davis, 442 U.S. 397, 411
(1979) (describing courts’ “obligation to honor the clear
meaning of a statute, as revealed by its language, purpose,
and history”) (emphasis added); Aldridge v. Williams, 44 U.S.
9Public context is especially important in examining “Congress’s enact-
ment (or reenactment) of . . . verbatim statutory text.” Alexander v. Sando-
val, 532 U.S. 275, 288 (2001). In this case, the key preemptive phrase,
“exclusive of any other civil action or proceeding by reason of the same
subject matter against the employee,” was identical to language in the Fed-
eral Drivers Act, which at the time provided that the FTCA was the exclu-
sive remedy “for personal injury, including 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.” 28 U.S.C. § 2679(b)
(1970). If constitutional tort suits against Public Health Service officers
and employees, arising out of performance of their medical duties, seemed
like a remote possibility in 1970, they would have seemed positively Dada
for suits against drivers of motor vehicles in 1961. See Pub. L. No. 87-258,
75 Stat. 539 (1961).
CASTANEDA v. HENNEFORD 14003
9, 24 (1845) (stating that courts interpreting legislation should
look, “if necessary, to the public history of the times in which
it was passed”). Thus, although the term “any other civil
action or proceeding” may appear clear in ahistorical isola-
tion, “[t]he meaning—or ambiguity—of certain words or
phrases may only become evident when placed in context.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132-33 (2000).
[8] As the Court noted in Carlson, the FTCA was enacted
long before Bivens recognized a right of action under the Con-
stitution. 446 U.S. at 19. Section 233(a), too, predated Bivens:
it was passed December 31, 1970, almost six months before
Bivens was decided the following June, and almost six years
before the Supreme Court’s decision in Estelle v. Gamble,
429 U.S. 97 (1976), established the “deliberate indifference”
standard for prisoner medical care under the Eighth Amend-
ment. Emergency Health Personnel Act of 1970, Pub. L. No.
91-623, 84 Stat. 1868 (1970). It is therefore unsurprising that
§ 233(a) says nothing about preempting direct constitutional
remedies—such remedies were not recognized at the time of
its passage. An ordinary reader, at the time of § 233(a)’s pas-
sage, would have understood “any other civil action or pro-
ceeding” with respect to “personal injury, including death,
resulting from the performance of medical, surgical, dental, or
related functions” to refer instead to a host of common-law
and statutory malpractice actions.10
[9] This understanding is borne out by the legislative his-
tory of § 233(a), which reveals that Congress’s exclusive con-
cern was with common law malpractice liability. The only
10
At oral argument, amicus the United States noted that while the
Supreme Court had not decided Bivens when § 233(a) was passed, it had
already granted certiorari in the case the previous June. See 399 U.S. 905(1970). This does not make the directive more “explicit”; at best, it intro-
duces a further element of ambiguity as to whether § 233(a) was intended
to preempt constitutional claims.
14004 CASTANEDA v. HENNEFORD
two statements on the floor of either house of Congress
respecting the bill mentioned only medical malpractice, with
nothing being said about constitutional violations. See 91
Cong. Rec. H42,543 (1970) (statement of Rep. Staggers) (“So
they have asked, if in the event there is a suit against a PHS
doctor alleging malpractice, the Attorney General of the
United States would defend them in whatever suit may
arise.”); 91 Cong. Rec. S42,977 (1970) (statement of Sen.
Javits) (“I am pleased to support . . . the provision for the
defense of certain malpractice and negligence suits by the
Attorney General.”). Representative Staggers noted that the
Surgeon General had requested the amendment because PHS
physicians “just cannot afford to take out the customary liabil-
ity insurance as most doctors do.” 91 Cong. Rec. H42,543.
The section itself was titled in the Statutes at Large11 “Defense
of Certain Malpractice and Negligence Suits.” 84 Stat. at
1870; see Almendarez-Torres v. United States, 523 U.S. 224,
234 (1998) (“[T]he title of a statute and the heading of a sec-
tion are tools available for a resolution of a doubt about the
meaning of a statute.”) (internal quotation marks omitted).
Thus, not only is the authoritative text of the statute silent as
to constitutional torts in particular, but the title and legislative
history, if anything, indicate an exclusive concern with state
malpractice claims.12
11
When § 233 was codified in the United States Code, it was given the
title “Exclusiveness of Remedy.” See 42 U.S.C. § 233. Title 42 of the
U.S.C., however, has not been enacted into positive law. See 1 U.S.C.
§ 204 note. To the extent title or heading can affect our reading of other-
wise ambiguous statutory language, then, it is the Statutes at Large that
provide us with the “legal evidence of [the] law[ ].” U.S. Nat’l Bank of
Oreg. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 & n.3.
12
We disagree with PHS Defendants’ and amicus the United States’
contention that “malpractice” here encompasses cruel and unusual punish-
ment or violations of due process under the Eighth or Fifth Amendments,
respectively. As we have noted, it certainly did not in 1970. The term mal-
practice, in ordinary speech, even now connotes negligence or incompe-
tence in performing one’s professional duties. See Black’s Law Dictionary
978 (8th ed. 2004) (defining “malpractice” as synonymous with “profes-
CASTANEDA v. HENNEFORD 14005
[10] Subsequent congressional action has revealed no incli-
nation to make the FTCA a substitute remedy for Bivens
actions. See Brown & Williamson, 529 U.S. at 143 (“At the
time a statute is enacted, it may have a range of plausible
meanings. Over time, however, subsequent acts can shape or
focus those meanings.”). The FTCA itself has been modified
to add an express exclusivity provision and to provide that the
sional negligence” and “medical malpractice” as a “doctor’s failure to
exercise the degree of care and skill that a physician or surgeon of the
same medical specialty would use under similar circumstances”). In
Estelle v. Gamble, the Supreme Court stressed the difference between mal-
practice and an Eighth Amendment violation: “Medical malpractice does
not become a constitutional violation merely because the victim is a pris-
oner. In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to seri-
ous medical needs.” 429 U.S. at 106.
While the acts giving rise to a constitutional action might also give rise
to one for malpractice, the two are nonetheless quite distinct. In Bivens,
the Supreme Court rejected a view of “the relationship between a citizen
and a federal agent unconstitutionally exercising his authority as no differ-
ent from the relationship between two private citizens,” noting that an
“agent acting—albeit unconstitutionally—in the name of the United States
possesses a far greater capacity for harm than an individual trespasser
exercising no authority other than his own.” 403 U.S. at 391-92.
That observation is particularly relevant here. To describe the allega-
tions in the complaint as averring mere “malpractice” is to miss the point.
Castaneda was not a walk-in patient at Defendants’ clinic; neither are
Defendants merely alleged to have misread a chart or fumbled a scalpel.
The ordinary doctor, no matter how careless, does not hold her patients
under lock and key, affirmatively preventing them from receiving the
medical care they need and demand. Even when denying his requests for
a biopsy in the fall of 2006, DIHS officials were aware that Castaneda “is
not able to be released to seek further care due to mandatory hold and[,]
according to ICE authorities, may be with this facility for a while.” The
Kafkaesque nightmare recounted in Plaintiffs’ complaint, which we
assume here to be true, draws its force not only from Defendants’ alleged
deliberate indifference, but also from Castaneda’s state-imposed helpless-
ness in the face of that indifference. The element of state coercion trans-
forms this into a species of action categorically different from anything
Congress would likely term “malpractice.”
14006 CASTANEDA v. HENNEFORD
provision does not bar actions for constitutional torts. In
response to the Supreme Court’s decision in Westfall v.
Erwin, 484 U.S. 292, 299 (1988),13 Congress passed the Fed-
eral Employees Liability Reform and Tort Compensation Act
of 1988 (LRTCA), Pub. L. No. 100-694 (1988). The LRTCA
expanded 28 U.S.C. § 2679(b), which previously made the
FTCA the exclusive remedy for injury resulting from a fed-
eral employee’s operation of a motor vehicle, to encompass
any “injury or loss of property, or personal injury or death
arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment.” 28 U.S.C.
§ 2679(b)(1). Because, under the FTCA, the United States is
substituted as the defendant in place of employees acting
within the scope of their official duties, the LRTCA acts as a
general grant of immunity to government employees for all
such acts. The amendment went on to clarify that general
immunity “does not extend or apply to a civil action against
an employee of the Government . . . which is brought for a
violation of the Constitution of the United States.” Id.§ 2679(b)(2)(A). In so doing, Congress made explicit what,
when Carlson was decided, had previously been implicit: that
“constitutional claims are outside the purview of the Federal
Tort Claims Act.” Billings v. United States, 57 F.3d 797, 800
(9th Cir. 1995). It would defy logic to suppose that § 233(a)
must be read, despite the lack of any statutory language or
legislative history counseling such a reading, to smuggle them
back in again for this one subset of defendants.
[11] What is more, the legislative history of the LRTCA
makes it clear that Congress viewed the general grant of
immunity it was extending to all employees, which expressly
exempted constitutional claims, to be identical to the immu-
13
In Westfall, the Supreme Court held that “absolute immunity does not
shield official functions from state-law tort liability unless the challenged
conduct is within the outer perimeter of an official’s duties and is discre-
tionary in nature.” 484 U.S. at 300.
CASTANEDA v. HENNEFORD 14007
nity it had already extended to PHS officers and employees
sixteen years earlier.14 The House Report, in discussing the
effect of the LRTCA, noted:
There is substantial precedent for providing an
exclusive remedy against the United States for the
actions of Federal employees. Such an exclusive
remedy has already been enacted to cover the activi-
ties of certain Federal employees, including . . .
...
3. Medical Personnel. — The FTCA is the exclu-
sive remedy for medical or dental malpractice on the
part of the medical personnel of most federal
employees.
H.R. Rep. No. 100-700, at 4 (1988), reprinted in 1988
U.S.C.C.A.N. 5945, 5948 (citing 42 U.S.C. § 233). The same
Report noted the “sharp distinction between common law
torts and constitutional or Bivens torts” and suggested that a
constitutional tort involves “a more serious intrusion of the
rights of an individual that merits special attention.” Id. at 6,
5948 U.S.C.C.A.N. at 5950. The Report emphasized that the
“ ‘exclusive remedy’ provision . . . [was] intended to substi-
tute the United States as the sole[ ] permissible defendant in
all common law tort actions,” id., but declared that the provi-
sion “expressly does not extend to . . . constitutional torts,” id.
at 5949.
Testifying before the House Committee on the Judiciary, a
senior Justice Department official stated:
[T]he exclusive remedy provision [of § 2679(b)(1)]
14
Cf. Carlson, 446 U.S. at 19-20 (examining legislative history of sub-
sequent amendments to the FTCA to determine whether Congress viewed
it as a substitute or complementary remedy).
14008 CASTANEDA v. HENNEFORD
is based on a very well-established precedent. Seven
such exclusive remedy provisions already exist.
They apply to drivers of vehicles, to physicians
employed by various agencies, and to Department of
Defense attorneys.
[The LRTCA] simply extends those provisions to
all Federal employees. Because of this precedent, we
have considerable experience with such exclusive
remedy provisions. They work well and fairly, have
been widely accepted, and are not controversial.
Legislation To Amend the Federal Tort Claims Act: Hearing
Before the Subcomm. on Administrative Law and Government
Relations of the H. Comm. on the Judiciary, 100th Cong. 58
(1988) (testimony of Robert L. Willmore, Deputy Assistant
Attorney General) (hereinafter Willmore Testimony). In the
very next breath, however, the Deputy Assistant Attorney
General agreed that “we want to avoid the constitutional torts
issue.” Id.; see also id. at 76 (statement of Willmore) (“H.R.
4358 would do nothing more than extend the protection now
enjoyed by doctors, drivers, and [Defense Department] attor-
neys to all federal employees.”), 78-79 (describing legislation
to make the FTCA exclusive of Bivens claims as “controver-
sial”).
The PHS Defendants argue that to construe § 233(a) to pre-
empt only common law and statutory tort actions would ren-
der it superfluous, since, post-LRTCA, PHS officers and
employees are already immune from those actions under
§ 2679(b)(1). Even if § 233 were now superfluous because of
the subsequent enactment of the LRTCA some 18 years later,
it unquestionably was not superfluous at the time it was
enacted.
We would certainly hesitate to read a statute in a manner
that would leave an entire subsection superfluous, and we do
not do so here. See Christensen v. Comm’r, 523 F.3d 957, 961
CASTANEDA v. HENNEFORD 14009
(9th Cir. 2008) (“We should avoid an interpretation that
would render [entire] subsections redundant.”). The canon
against redundancy is rooted in the notion (perhaps aspira-
tional) that Congress would not do anything as preposterous
as to pass a statute that was, in part or in whole, a nullity ab
initio. Cf. Int’l Ass’n of Machinists & Aerospace Workers v.
BF Goodrich Aerospace Aerostructures Group, 387 F.3d
1046, 1057 (9th Cir. 2004) (“ ‘[A]bsent clear congressional
intent to the contrary, the legislature did not intend to pass
vain or meaningless legislation.’ ”) (quoting Coyne & Delany
Co. v. Blue Cross & Blue Shield of Va., Inc., 102 F.3d 712,
715 (4th Cir. 1996)) (alterations omitted). The presumption
applies more weakly in situations, like this one, in which the
provision is potentially rendered superfluous by language
contained in a separate, later statute. Boise Cascade Corp. v.
U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991) (we must
“mak[e] every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent,
meaningless or superfluous.”) (emphasis added). Indeed,
“[r]edundancies across statutes are not unusual events in
drafting,” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253
(1992), and it would not be surprising to a frequent reader of
federal statutes that Congress might pass a later, more com-
prehensive statute that has the effect of rendering an earlier
statute redundant, at least in part.15 The Supreme Court has
already held that § 2679(b) applies to all federal employees,
15
See Germain, 503 U.S. at 256 (O’Connor, J., concurring in the judg-
ment) (“I think it far more likely that Congress inadvertently created a
redundancy than that Congress intended to withdraw appellate jurisdiction
over interlocutory bankruptcy appeals by the roundabout method of recon-
ferring jurisdiction over appeals from final bankruptcy orders.”); Zorich v.
Long Beach Fire Dep’t & Ambulance Serv., Inc., 118 F.3d 682, 686 (9th
Cir. 1997) (holding that a later, more general statute did not render a prior
one superfluous because they provide “two separate means of qualifying
for coverage”); cf. 2B Normal J. Singer, Sutherland Statutes and Statutory
Construction § 51:5 (7th ed. 2007) (“A later general act may be held to
supercede a prior narrower one where the later act purports to deal com-
prehensively with the subject to which it pertains.”).
14010 CASTANEDA v. HENNEFORD
regardless of whether they were covered by pre-LRTCA
immunities. See United States v. Smith, 499 U.S. 160, 172-73
(1991) (“The Liability Reform Act’s plain language makes no
distinction between employees who are covered under pre-
Act immunity statutes and those who are not.”).16
[12] In any event, we disagree that our reading makes the
text of § 233(a) superfluous, post-LRTCA. A review of the
rest of § 233 reveals why: subsection (a) remains the lynchpin
of the entire balance of the section. See Dolan v. United States
Postal Serv., 546 U.S. 481, 486 (2006) (“Interpretation of a
word or phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and con-
sulting any precedents or authorities that inform the analy-
sis.”). Other subsections of § 233 have extended subsection
(a) protection to private persons and entities (who are not oth-
erwise “employees” covered by FTCA) by stating that they
are to be “deemed to be an employee of the Public Health Ser-
vice.”17 Still other subsections involve the administration and
16
In Smith, the pre-LRTCA immunity in question was the Gonzalez Act,
10 U.S.C. § 1089(a), which, like § 233(a), provides that the FTCA is the
exclusive remedy for personal injury caused by armed forces physicians.
Below, this court, joining the Eleventh Circuit, held that § 1089(a) granted
immunity only for torts occurring in the United States. See Smith v. Mar-
shall, 885 F.2d 650, 652-54 (9th Cir. 1989); Newman v. Soballe, 871 F.2d
969, 974 (11th Cir. 1989). The Supreme Court reversed, holding that,
regardless of whether the Gonzalez Act would immunize foreign conduct,
the LRTCA did, and the individual defendants were therefore immune.
United States v. Smith, 499 U.S. at 172.
Smith thus presented the opposite question from that posed here: in
Smith, the pre-LRTCA immunity statute purportedly contained an excep-
tion to immunity not present in the LRTCA; in our case, PHS Defendants
argue that the LRTCA contains an exception to immunity not in the pre-
LRTCA immunity statute. Because we hold that § 233(a) does not provide
an immunity for Bivens torts, Smith is of little relevance to us here beyond
the proposition for which we cite it in the text above.
17
See § 233(g) (operators of health centers receiving federal funds under
42 U.S.C. § 254(b), (j) (officers, employees, or contractors of health center
operators), (m) (managed care plans entering into contracts with health
centers), (o) (health professionals volunteering at free clinics), (p) (profes-
sionals carrying out smallpox countermeasures in the event of “bioterrorist
incident” or other emergency).
CASTANEDA v. HENNEFORD 14011
limitation of this preemption.18 Section 233(a), by defining the
scope of immunity granted uniquely to PHS employees
(respecting only “the performance of medical, surgical, den-
tal, or related functions”), allows PHS and the Attorney Gen-
eral to provide a limited grant of immunity to volunteers and
recipients of federal funds. After the LRTCA, then, the ongo-
ing function of § 233, read as a whole, is to extend the FTCA
exclusivity to private entities, much like many other statutes
scattered throughout the U.S. Code. See, e.g., 23 U.S.C.
§ 510(g)(1) (immunizing official acts by employees of
National Academy of Sciences carrying out the future strate-
gic highway research program); 42 U.S.C. § 5055(f)(1)(A)
(volunteers of the Domestic Volunteer Services); 42 U.S.C.
§ 247d-6a(d)(2)(A) (Health and Human Services contractors
involved in research and development activities related to
“qualified countermeasures” against certain weapons of mass
destruction); 50 U.S.C. § 2783(b)(1) (government contractors
under Atomic Testing Liability Act). It would, indeed, be
superfluous to add an explicit exemption for such “deemed”
employees from Bivens actions because such private actors
are not subject to Bivens actions. Corr. Serv. Corp. v.
Malesko, 534 U.S. 61 (2001).
c. Context
[13] In addition to historical context, individual statutes are
located within a greater statutory and remedial context. We
must “find that interpretation which can most fairly be said to
be imbedded in the statute, in the sense of being most harmo-
nious with its scheme and with the general purposes that Con-
gress manifested.” United States v. Alghazouli, 517 F.3d
1179, 1184 (9th Cir. 2008) (quoting Comm’r v. Engle, 464
U.S. 206, 217 (1984)). As we have noted, § 233(a) is not the
18
See, e.g., § 233(h) (qualifications for designation under subsection
(g)), (k) (estimation of annual claims and establishment of fund), (n)
(reports to Congress detailing United States’ risk exposure by virtue of
deemed employees).
14012 CASTANEDA v. HENNEFORD
only statute that makes the FTCA the exclusive remedy for
injuries committed by certain classes of federal employees
(although their meaning is not before us here). Most, like
§ 233(a), concern federal medical personnel. Some expressly
limit themselves to actions involving “malpractice or negli-
gence.” 22 U.S.C. § 2702(a)(1) (State Department medical
personnel); 38 U.S.C. § 7316(a)(1)(A) (Veterans Health
Administration). Others specify in the text only a “negligent
or wrongful act or omission.” 10 U.S.C. § 1089(a) (Depart-
ment of Defense, Armed Forces Retirement Home, and Cen-
tral Intelligence Agency medical personnel); 42 U.S.C.A.
§ 2458a (NASA). Additionally, Department of Defense law-
yers are given immunity for any “negligent or wrongful act or
omission” connected with their provision of legal services. 10
U.S.C. § 1054(a). All, like § 233(a), mention “malpractice” in
their title. All of these classes of employee might, absent
§ 2679(b)(1), face substantial common law and statutory mal-
practice liability.19 Granting these individuals, along with all
federal employees driving motor vehicles (the former function
of § 2679(b)), immunity from state negligence actions served
a very real, obvious common purpose.20
PHS Defendants and amicus the United States, however,
have provided no explanation for why Congress would want
to provide these persons with the privilege, shared with no
other federal employees, to violate the Constitution without
19
Notably, all the above statutes were passed well before the LRTCA
gave a general grant of immunity to federal employees, with the exception
of 38 U.S.C. § 7316, which was added in 1991. Department of Veterans
Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-40, 105 Stat.
187 (1991). As we have seen, however, that statute was itself simply a
recodification of the much older pre-LRTCA immunity formerly located
at 38 U.S.C. § 4116(a). See id. § 402, 105 Stat. at 238 (renumbering
§ 4116 as § 7316).
20
See Willmore Testimony at 76 (describing pre-LRTCA immunities as
allowing “the United States . . . to develop a consistent and uniform
approach to medical malpractice and automobile tort litigation—two of
the most common types of common law torts”).
CASTANEDA v. HENNEFORD 14013
consequence. See Malesko, 534 U.S. at 76 (Stevens, J., dis-
senting) (“Nor have we ever suggested that a category of fed-
eral agents can commit Eighth Amendment violations with
impunity.”). Why should the physicians who treat our sol-
diers’ families21 be immune from constitutional torts while the
physicians who treat our veterans are not? Why distinguish
the Bureau of Prisons medical personnel who allowed a man
in federal custody to die in Carlson from the PHS personnel
who allegedly relegated a man in immigration detention to a
similar outcome here? What is it about Department of
Defense attorneys, alone among our government’s legions of
legal personnel, that they deserve such solicitude?
The LRTCA was passed to abolish such arbitrary distinc-
tions. In his written statement to Congress, the Deputy Assis-
tant Attorney General noted the absurdity of treating doctors,
drivers, and Defense Department lawyers differently from all
other federal employees. “For example, lawyers involved in
Department of Commerce contracting should be protected
from personal liability for their professional advice, just like
their counterparts in the Department of Defense.” Willmore
Testimony at 76. Yet twenty years later, his successors at the
Justice Department would have us re-introduce the exact same
disparity in miniature, immunizing one set of doctors and law-
yers from Bivens liability, and leaving the rest on the hook.
[14] Had Congress intended this result, it surely would
have said so—in the statute itself, in its title, or in the legisla-
tive history. Instead, the statute is silent as to the Constitution,
and both the title and contemporary and subsequent legislative
21
Military personnel themselves are generally unable to bring Bivens
actions for injuries that “ ‘arise out of or are in the course of activity inci-
dent to service.’ ” United States v. Stanley, 483 U.S. 669, 683 (1987)
(quoting Feres v. United States, 340 U.S. 135, 146 (1950)). Notably,
although it was ultimately disposed of on other grounds, at no point in the
Stanley litigation, which involved U.S. Army physicians’ secret experi-
mentation with LSD on unsuspecting soldiers, does it appear that it
occurred to anyone to invoke 10 U.S.C. § 1089.
14014 CASTANEDA v. HENNEFORD
history suggest that Congress intended to preclude only com-
mon law malpractice claims. This cannot be what the
Supreme Court meant by an explicitly declared substitute. We
therefore hold that § 233(a) does not explicitly declare the
FTCA to be a substitute remedy for Bivens actions against
PHS officers and employees.
3. Cuoco v. Moritsugu
We recognize that our holding in this case conflicts with
the Second Circuit’s decision in Cuoco v. Moritsugu, 222
F.3d 99. In Cuoco, the court relied on dicta in Carlson which
it read to imply that § 233(a) was an expressly declared sub-
stitute for Bivens. Id. at 108. In Carlson, the Supreme Court
wrote that its conclusion that the FTCA complements Bivens,
rather than replaces it,
is buttressed by the significant fact that Congress fol-
lows 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) (malprac-
tice by certain Government health personnel); 28
U.S.C. § 2679(b) (operation of motor vehicles by
federal employees); and 42 U.S.C. § 247b(k) (manu-
facturers of swine flu vaccine).
446 U.S. at 20 (emphasis added). In the middle of a discus-
sion about Bivens preemption, it is easy to skip over what,
buried in a string citation, the Supreme Court actually said
was preempted under § 233(a), et al., i.e., actions for “mal-
practice.” Indeed, the Court also cited 38 U.S.C. § 4116(a)
(1980), which by its terms expressly limited Veterans Health
Administration medical personnel’s immunity to actions “al-
legedly arising from malpractice or negligence.”22 Moreover,
22
Cuoco found this express limitation in § 4116(a)’s modern successor,
38 U.S.C. § 7316(a)(1), to be meaningful for interpreting § 233(a).
CASTANEDA v. HENNEFORD 14015
before the passage of the LRTCA’s general “exclusive reme-
dy” provision, the enumerated statutes were the only statutes
that provided that the FTCA to be exclusive of any remedy.
We believe that the better reading of the Court’s dictum in
Carlson is that just as Congress, through certain statutes,
made the FTCA a substitute remedy for medical malpractice
actions, so it could—but did not—declare the FTCA to be a
substitute remedy for federal constitutional claims.
Cuoco also failed to discuss whether Congress viewed the
remedies provided under the FTCA as “equally effective” as
those provided under Bivens, a question that the Carlson
Court explicitly answered in the negative. Because, under
Carlson, compliance with its “equally effective” prong is a
necessary pre-condition for holding a statutory remedy to be
a substitute for a Bivens cause of action, Cuoco’s failure to
address that prong or the answer provided by Carlson is con-
trary to governing Supreme Court precedent. Accordingly, we
cannot agree with the Second Circuit’s analysis or application
of Carlson.
B. Do “Special Factors” Exist Here Warranting a
Finding of Implicit Preemption?
[15] Both the Supreme Court and this court have recog-
nized that even where Congress fails to explicitly declare a
remedy to be a substitute for recovery directly under the Con-
stitution or to provide a remedy that is as effective a remedy
for a constitutional tort, a Bivens action may still be pre-
Because § 7316(a)(1) mentions “malpractice or negligence,” and § 233(a)
does not, the Second Circuit held that § 233(a)’s reach extended to consti-
tutional torts as well. 222 F.3d at 108. The Second Circuit did not mention
the presence of the term “malpractice” in § 233(a)’s title, perhaps over-
looked, since that title does not appear in the United States Code. At any
rate, we believe that Supreme Court did not find that omission to be a crit-
ical difference in Carlson, citing the two statutes, one right after the other,
as both standing for the proposition that the FTCA is the exclusive remedy
for “malpractice by certain Government health personnel.” 446 U.S. at 20.
14016 CASTANEDA v. HENNEFORD
cluded. As Carlson noted, a Bivens action will not lie “when
defendants demonstrate ‘special factors counselling hesitation
in the absence of affirmative action by Congress.’ ” 446 U.S.
at 18 (quoting Bivens, 403 U.S. at 396). “The presence of a
deliberately crafted statutory remedial system is one ‘special
factor’ that precludes a Bivens remedy.” Moore v. Glickman,
113 F.3d 988, 991 (9th Cir. 1997). PHS Defendant Cmdr.
Henneford and the United States contend that, even if
§ 233(a) is not an explicit substitution of the FTCA for
Bivens, it nonetheless constitutes a “deliberately crafted statu-
tory remedial system,” id., [Henneford Br. at 31] such that we
ought to find that the FTCA impliedly displaces Bivens for
suits against PHS officers and employees.
Neither Cmdr. Henneford nor any other PHS Defendant
appears to have raised any argument based on the presence of
“special factors” before the district court. [See Dk. # 19
(Notice of Motion and Motion to Dismiss for Lack of Juris-
diction); # 42 (Reply in Support of Motion to Dismiss for
Lack of Jurisdiction)] “Generally, in order for an argument to
be considered on appeal, the argument must have been raised
sufficiently for the trial court to rule on it.” A-1 Ambulance
Serv., Inc. v. County of Monterey, 90 F.3d 333, 338 (9th Cir.
1996).23
[16] In any case, we reject this argument as well. First,
while the Supreme Court and this court have subsequently
found various other remedial schemes to be “special factors”
precluding Bivens relief, see, e.g., Chilicky, 487 U.S. at 425;
Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989), those deci-
sions have not overruled Carlson’s square holding that there
are no special factors that preclude a Bivens action in a case
whose facts and posture mirror this one. 446 U.S. at 19 (hold-
ing that “the case involves no special factors counseling hesi-
23
For this reason, we will not pass on Cmdr. Henneford’s assertion in
his opening brief that the complaint does not aver sufficient facts to estab-
lish his personal involvement in the alleged constitutional deprivation.
CASTANEDA v. HENNEFORD 14017
tation in the absence of affirmative action by Congress”). As
noted earlier, here, as in Carlson, we have an individual who
has died, allegedly due to the deliberate indifference of the
federal officials charged with his health and safety. As in Car-
lson, the decedent’s survivors bring a Bivens action premised
on violations of the Fifth and Eighth Amendments, and the
officials argue that no Bivens remedy is available. Because the
present case is functionally identical to Carlson, Carlson’s
holding that no special factors preclude Bivens relief is bind-
ing on this court.24
[17] Second, “Chilicky and Kotarski hold that courts should
not create a Bivens remedy where the complexity of a federal
program, including a comprehensive remedial scheme, shows
that Congress has considered the universe of harms that could
be committed in the program’s administration and has pro-
vided what Congress believes to be adequate remedies.”
Adams, 355 F.3d at 1185. The FTCA is not such a scheme,
for the simple reason that it does not provide remedies that
Congress believes to be adequate: It provides the remedies
that individual states believe to be adequate remedies for
common law torts. Congress did not “deliberately craft” “a
comprehensive remedial scheme” when it adopted the
FTCA’s remedies; rather, it delegated the underlying reme-
dies to state legislatures and courts. We do not believe that
Congress intended to delegate to the states the mechanism by
which violations of federally established rights are remedied.
As noted above, the remedies we and the Supreme Court have
held to preclude Bivens were deliberately crafted by Congress
and applied uniformly throughout the republic. We are aware
of no case holding a remedial scheme that is entirely parasitic
on state law to be a substitute for a Bivens remedy. Instead,
the Supreme Court has announced its skepticism regarding
any such remedial scheme: “The question whether [an] action
for violations by federal officials of federal constitutional
24
For the same reason, our decision does not extend Bivens into a new
context. Cf. Commercial Serv. Corp. v. Malesko, 534 U.S. 61, 68 (2001).
14018 CASTANEDA v. HENNEFORD
rights should be left to the vagaries of the laws of the several
States admits of only a negative answer in the absence of a
contrary congressional resolution.” Carlson, 446 U.S. at 23.
Accordingly, the statutory remedies provided in the FTCA do
not constitute a comprehensive remedial scheme and cannot
serve as a “special factor” precluding Bivens relief.25
Conclusion
We agree with the district court that § 233(a) does not enti-
tle the PHS Defendants to absolute immunity from constitu-
tional torts.26
AFFIRMED.
25
Defendants point to no other special factors counseling hesitation in
the present case. This is to be expected, because Castaneda “seek[s] a
cause of action against an individual officer, otherwise lacking, as in Carl-
son.” Malesko, 534 U.S. at 74. The case does not involve any of the other
special factors that the Supreme Court has held preclude Bivens relief: a
lawsuit against a federal agency or private corporation, see Malesko, 534
U.S. 61; FDIC v. Meyer, 510 U.S. 471 (1994); the “unique disciplinary
structure of the Military Establishment,” United States v. Stanley, 483 U.S.
669 (1987); Chappell v. Wallace, 462 U.S. 296 (1983); or a constitutional
claim that cannot be defined into “a workable cause of action,” Wilkie v.
Robbins, 127 S. Ct. 2588 (2007). Defendants simply ask us to revisit Carl-
son’s holding that the FTCA is not a “special factor.” This we decline to
do.
26
Because Carlson requires us to affirm, as discussed throughout this
opinion, we need not reach the issues of statutory construction which
underlie the district court’s opinion.