Appellate Law

CA1: Public Health Service is treated like other uniformed services for purposes of FTCA and Bivens

By S. COTUS

Diaz-Romero v. Ashcroft, No. 07-1607.  The plaintiff is a commissioned officer of the Public Health Service, an agency of the Department of Health and Human Services, which is a "uniformed service" of the United States. 42 U.S.C. § 201(p).  (And yes, they wear uniforms.  But wouldn't it be funny, if there was a typo and they wore unicorns?  That would be pretty zany, because they would always bump into each other, right?)  The facts are strange.  He was seconded to the Bureau of Prisons and:

During Diaz-Romero's stint with the BOP he was involved in two incidents. First, another BOP employee filed a sexual harassment complaint against him, although an Equal Employment Opportunity Commission investigator later concluded that the complaint was unfounded. Second, he failed to report to management that an inmate greeted him by placing her cheek next to his and "throwing" a kiss to the air.

Then a bunch of adverse employment actions transpired.  ?Diaz-Romero asserted that he was punished for defending against the sexual harassment claim and not because of the incident with the inmate.?  He asserts a bunch of theories of jurisdiction, namely the FTCA and Bivens.  The District Court says Feres applies to the PHS.

Applying Feres to both the Bivens and the tort claims, the First finds that even though he was at a civilian prison, handle this claim would require the courts to inquire into the military?s disciplinary scheme.

Full post as published by Appellate Law and Practice on January 31, 2008 (boomark / email).