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/  2:07-cv-07241- her individual capacity; M. 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
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.

13984 CASTANEDA v. HENNEFORD
COUNSEL

John K. Rubiner, Bird, Marella, Boxer, Wolpert, Nessim,

Drooks & Lincenberg, P.C., Los Angeles, California; Matthew S. Freedus and Robert Graham, Feldesman Tucker

Leifer Fidell LLP, Washington, D.C., for the defendantsappellants.

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 Division, 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

CASTANEDA v. HENNEFORD 13987
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 Narcotics, 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 conviction 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-ahalf-month incarceration, Castaneda met with DOC medical

personnel regarding a white-and-yellow raised lesion, then

measuring approximately two centimeters square, on the foreskin 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 Immigration and Customs Enforcement (ICE) at the San Diego

Correctional Facility (SDCF). 

Immediately upon his transfer, Castaneda brought his condition to the attention of the SDCF medical personnel, members of the Division of Immigration Health Services (DIHS).2

1All 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 complaint. Savage v. Glendale Union High Sch., Dist. No. 205, 343 F.3d 1036,

1039 n.1 (9th Cir. 2003). 

2DIHS, 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). 

13988 CASTANEDA v. HENNEFORD
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 pancreatic 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 “require[d] urgent urologic assessment of biopsy and definitive

treatment,” citing the potential for “considerable morbidity

from even benign lesions which are not promptly and appropriately 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 procedure to detect a life-threatening disease,4

 to be an “elective

outpatient procedure” and declined to approve it. 

3The 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 uniform 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 Department 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/

CASTANEDA v. HENNEFORD 13989
Castaneda’s symptoms grew worse and worse. On June 12,

he filed a grievance report, asking for the surgery recommended by Dr. Wilkinson and stating that he was “in a considerable 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 swelling, bleeding from the foreskin, and difficulty in urination. On

July 13, instead of scheduling a biopsy, ICE brought Castaneda 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, determined 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 physician’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 eyesight.” 

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”). 

13990 CASTANEDA v. HENNEFORD
On August 22, Castaneda saw another urologist, Robert

Masters, M.D. Dr. Masters concluded that Castaneda had genital warts and was in need of circumcision, which would both

relieve the “ongoing medical side effects of the lesion including 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 prescribed laxatives. The following day, Castaneda complained

that the lesion was growing, that he could not stand and urinate 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 Castaneda’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 notifying ICE and Health Service Administration officials of Castaneda’s medical problems and urging that he receive the

biopsy he had been prescribed almost a year earlier. Apparently in response, Castaneda was sent to yet another urologist,

Lawrence S. Greenberg, M.D, on December 14. Dr. Greenberg described Castaneda’s penis as a “mess,” and stated that

he required surgery. The ACLU continued to demand treatCASTANEDA v. HENNEFORD 13991
ment, to no apparent avail. Forty-one days later, January 25,

2007, Castaneda was seen by Asghar Askari, M.D., who diagnosed 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 squamous cell carcinoma of the penis. On February 14, Castaneda’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 unsuccessful. 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 constitutional claims (violations of the Fifth, Eighth, and Fourteenth Amendments) against the individual defendants under

Bivens and 42 U.S.C. § 1983. He sought compensatory and

punitive damages and declaratory relief. Following Castaneda’s death, Plaintiffs-Appellants Yanira Castaneda, Castane13992 CASTANEDA v. HENNEFORD
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 Commander 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 (collectively, PHS Defendants), moved to dismiss the case for lack

of subject matter jurisdiction under Federal Rule of Civil Procedure 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 dismiss, 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. 

CASTANEDA v. HENNEFORD 13993
Jurisdiction and Standard of Review

District court orders denying absolute immunity constitute

“final decisions” for the purposes of 28 U.S.C. § 1291, granting 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 limits:

Such a cause of action may be defeated in a particular 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 citations omitted) (quoting Bivens, 403 U.S. at 396). Under Carlson, 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 remedy. 

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

13994 CASTANEDA v. HENNEFORD
federal prisoner, brought suit against federal prison officials

on behalf of her son’s estate, alleging Eighth Amendment violations. Specifically, she alleged that the federal officials’

deliberate indifference to his serious medical needs, amounting 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 substitute 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 congressional declaration foreclosing the Bivens claim and making 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, allegedly 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

6Unlike 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 “punishment.” 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, however, that formal distinction is irrelevant: “[w]ith regard to medical needs,

the due process clause imposes, at a minimum, the same duty the Eighth

CASTANEDA v. HENNEFORD 13995
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 officer 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 factor” 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 component of the Due Process Clause of the Fifth Amendment, alleging that Castaneda 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 component of the Fifth Amendment’s Due Process Clause). 

13996 CASTANEDA v. HENNEFORD
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 alternative 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 individual 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 axiomatic that the threat of damages has a deterrent effect, particularly so when the individual official faces personal financial

liability.” Id. at 21 (citations omitted). Second, punitive damages are not available under the FTCA, further undermining

its deterrent effect. “Punitive damages are ‘a particular remedial mechanism normally available in the federal courts,’ and

are especially appropriate to redress the violation by a Government official of a citizen’s constitutional rights. . . . But

punitive damages in an FTCA suit are statutorily prohibited.

CASTANEDA v. HENNEFORD 13997
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 Congress 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]” motivating Bivens “that the liability of federal officials for violations

of citizens’ constitutional rights should be governed by uniform 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 emphasized 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. 

13998 CASTANEDA v. HENNEFORD
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 damages 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 performance 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 availability, 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 noneconomic 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,

CASTANEDA v. HENNEFORD 13999
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 resolution 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 common 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 Congress as equally effective as Bivens. Moreover, every one of

those subsequently examined schemes, however otherwise

undercompensatory, nonetheless provided a uniform remedy

8We express no opinion here as to whether or how these or similar procedural 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). 

14000 CASTANEDA v. HENNEFORD
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 “explicit[ ] . . . substitute . . . and . . . equally effective [remedy]”

standard, Carlson, 446 U.S. at 18-19, also compels the conclusion 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 Congress 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 Constitution.” 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

CASTANEDA v. HENNEFORD 14001
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 cannot 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 question. 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 timeless, 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 enactment (or reenactment) of . . . verbatim statutory text.” Alexander v. Sandoval, 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 Federal Drivers Act, which at the time provided that the FTCA was the exclusive 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). 

14002 CASTANEDA v. HENNEFORD
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 isolation, “[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 Constitution. 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 Amendment. 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 passage, would have understood “any other civil action or proceeding” 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 history of § 233(a), which reveals that Congress’s exclusive concern was with common law malpractice liability. The only

10At 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 introduces a further element of ambiguity as to whether § 233(a) was intended

to preempt constitutional claims. 

CASTANEDA v. HENNEFORD 14003
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 liability 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 section 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

11When § 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 otherwise 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. 

12We disagree with PHS Defendants’ and amicus the United States’

contention that “malpractice” here encompasses cruel and unusual punishment or violations of due process under the Eighth or Fifth Amendments,

respectively. As we have noted, it certainly did not in 1970. The term malpractice, in ordinary speech, even now connotes negligence or incompetence in performing one’s professional duties. See Black’s Law Dictionary

978 (8th ed. 2004) (defining “malpractice” as synonymous with “profes14004 CASTANEDA v. HENNEFORD
[10] Subsequent congressional action has revealed no inclination 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 malpractice and an Eighth Amendment violation: “Medical malpractice does

not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious 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 different 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 allegations 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 helplessness in the face of that indifference. The element of state coercion transforms this into a species of action categorically different from anything

Congress would likely term “malpractice.” 

CASTANEDA v. HENNEFORD 14005
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 Federal 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 federal 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 immu13In 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 discretionary in nature.” 484 U.S. at 300. 

14006 CASTANEDA v. HENNEFORD
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 activities of certain Federal employees, including . . . 

. . .

3. Medical Personnel. — The FTCA is the exclusive 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 substitute the United States as the sole[ ] permissible defendant in

all common law tort actions,” id., but declared that the provision “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)]

14Cf. Carlson, 446 U.S. at 19-20 (examining legislative history of subsequent amendments to the FTCA to determine whether Congress viewed

it as a substitute or complementary remedy). 

CASTANEDA v. HENNEFORD 14007
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] attorneys to all federal employees.”), 78-79 (describing legislation

to make the FTCA exclusive of Bivens claims as “controversial”). 

The PHS Defendants argue that to construe § 233(a) to preempt only common law and statutory tort actions would render 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

14008 CASTANEDA v. HENNEFORD
(9th Cir. 2008) (“We should avoid an interpretation that

would render [entire] subsections redundant.”). The canon

against redundancy is rooted in the notion (perhaps aspirational) 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 comprehensive 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,

15See Germain, 503 U.S. at 256 (O’Connor, J., concurring in the judgment) (“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 reconferring 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 comprehensively with the subject to which it pertains.”). 

CASTANEDA v. HENNEFORD 14009
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 preAct 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 consulting any precedents or authorities that inform the analysis.”). Other subsections of § 233 have extended subsection

(a) protection to private persons and entities (who are not otherwise “employees” covered by FTCA) by stating that they

are to be “deemed to be an employee of the Public Health Service.”17 Still other subsections involve the administration and

16In 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. Marshall, 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 exception to immunity not present in the LRTCA; in our case, PHS Defendants

argue that the LRTCA contains an exception to immunity not in the preLRTCA 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. 

17See § 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) (professionals carrying out smallpox countermeasures in the event of “bioterrorist

incident” or other emergency). 

14010 CASTANEDA v. HENNEFORD
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, dental, or related functions”), allows PHS and the Attorney General to provide a limited grant of immunity to volunteers and

recipients of federal funds. After the LRTCA, then, the ongoing 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 strategic 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 harmonious with its scheme and with the general purposes that Congress 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

18See, 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). 

CASTANEDA v. HENNEFORD 14011
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 negligence.” 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) (Department of Defense, Armed Forces Retirement Home, and Central Intelligence Agency medical personnel); 42 U.S.C.A.

§ 2458a (NASA). Additionally, Department of Defense lawyers 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 malpractice 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

19Notably, 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). 

20See 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”). 

14012 CASTANEDA v. HENNEFORD
consequence. See Malesko, 534 U.S. at 76 (Stevens, J., dissenting) (“Nor have we ever suggested that a category of federal agents can commit Eighth Amendment violations with

impunity.”). Why should the physicians who treat our soldiers’ 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 distinctions. In his written statement to Congress, the Deputy Assistant 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 lawyers 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 legislative history. Instead, the statute is silent as to the Constitution,

and both the title and contemporary and subsequent legislative

21Military personnel themselves are generally unable to bring Bivens

actions for injuries that “ ‘arise out of or are in the course of activity incident 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 experimentation with LSD on unsuspecting soldiers, does it appear that it

occurred to anyone to invoke 10 U.S.C. § 1089. 

CASTANEDA v. HENNEFORD 14013
history suggest that Congress intended to preclude only common 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 substitute 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 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); 28

U.S.C. § 2679(b) (operation of motor vehicles by

federal employees); and 42 U.S.C. § 247b(k) (manufacturers of swine flu vaccine).

446 U.S. at 20 (emphasis added). In the middle of a discussion 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 “malpractice.” 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 “allegedly arising from malpractice or negligence.”

22 Moreover,

22Cuoco found this express limitation in § 4116(a)’s modern successor,

38 U.S.C. § 7316(a)(1), to be meaningful for interpreting § 233(a).

14014 CASTANEDA v. HENNEFORD
before the passage of the LRTCA’s general “exclusive remedy” 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 contrary 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 recognized that even where Congress fails to explicitly declare a

remedy to be a substitute for recovery directly under the Constitution or to provide a remedy that is as effective a remedy

for a constitutional tort, a Bivens action may still be preBecause § 7316(a)(1) mentions “malpractice or negligence,” and § 233(a)

does not, the Second Circuit held that § 233(a)’s reach extended to constitutional 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 overlooked, 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 critical 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.

CASTANEDA v. HENNEFORD 14015
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 statutory 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 Jurisdiction); # 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 decisions 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 (holding that “the case involves no special factors counseling hesi23For this reason, we will not pass on Cmdr. Henneford’s assertion in

his opening brief that the complaint does not aver sufficient facts to establish his personal involvement in the alleged constitutional deprivation. 

14016 CASTANEDA v. HENNEFORD
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 Carlson, 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 binding 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 provided 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 remedies 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

24For 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).

CASTANEDA v. HENNEFORD 14017
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 entitle the PHS Defendants to absolute immunity from constitutional torts.26

AFFIRMED.

25Defendants 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 Carlson.” 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 Carlson’s holding that the FTCA is not a “special factor.” This we decline to

do. 

26Because 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. 

14018 CASTANEDA v. HENNEFORD