Ingram v. Faruque

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 6, 2013

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

DELBERT INGRAM,

Plaintiff-Appellant,

v.

HASHIB D. FARUQUE, M.D.; YAN
FENG, M.D.; DAVID WOOD, DONNA No. 11-6341
DELISE; KYLE INHOFE; LT.
MICHAEL STEVENSON; CAPTAIN
TIM COLLINS; DEPARTMENT OF
VETERAN AFFAIRS,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:11-CV-00188-C)

Eric D. Cotton, The Cotton Law Firm, PLLC, Edmond, Oklahoma, for Plaintiff-
Appellant.

Suzanne Mitchell, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, and Laura M. Grimes, Assistant United States Attorney, with her on the brief),
Oklahoma City, Oklahoma, for Defendants-Appellees.

Before MATHESON, EBEL, and MURPHY, Circuit Judges.
EBEL, Circuit Judge.

INTRODUCTION

Plaintiff-Appellant Delbert Ingram appeals from a district court’s dismissal of his

claims against Defendants-Appellees (“Defendants”). Mr. Ingram sued Defendants-

Appellees—Dr. Hashib D. Faruque, Dr. Yan Feng, Donna Delise, Kyle Inhofe,

Lt. Michael Stevenson, and Captain Tim Collins1— claiming that Defendants had

violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by

holding him in a psychiatric ward for over twenty-four hours without his consent.

Defendants filed motions to dismiss, arguing that, among other things, the district court

lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act

(“FTCA”) provided the sole remedy for Mr. Ingram’s claims, and that the court therefore

should not authorize a judicial remedy under Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). Fed. R. Civ. P. 12(b)(1).

1
Mr. Ingram also initially named as defendants David Wood, director of the Oklahoma
City Department of Veterans Affairs Medical Center, in his official capacity, and the
Department of Veteran Affairs, but he later voluntarily dismissed these two parties.

2
 The district court agreed that it lacked subject matter jurisdiction over Mr.

Ingram’s claims, and therefore granted Defendants’ motions to dismiss. Specifically, the

court concluded that Mr. Ingram had a remedy available under 38 U.S.C. § 7316 (“VA

Immunity Statute”), which applies the remedy available against the United States under

the FTCA to damages arising from the provision of medical services by health care

employees of the Veteran’s Administration (“VA”). Because of the availability of a

remedy under the VA Immunity Statute, it concluded that Mr. Ingram did not have a

cause of action under Bivens.

Having jurisdiction under 28 U.S.C. § 1291, we affirm on the basis that Mr.

Ingram has, or has had, an adequate alternative remedy available through the VA

Immunity Statute and the FTCA,2 and it is therefore not appropriate to authorize a Bivens

remedy for Mr. Ingram. Accordingly, the district court did not err in ruling that it lacked

subject matter jurisdiction over Mr. Ingram’s claims.

BACKGROUND

I. Factual Background

2
Plaintiff did not assert a claim under the FTCA and therefore the district court did not
express any opinion whether Mr. Ingram’s potential FTCA claim might now be barred
for procedural or timeliness reasons, or otherwise. Likewise, we do not address that
issue.

3
 Mr. Ingram is an employee at the Oklahoma City Department of Veterans Affairs

Medical Center (“VAMC”). At the time of the incidents resulting in this appeal, VAMC

police received a report from one of Mr. Ingram’s coworkers, stating that Mr. Ingram had

said that he had been thinking about killing his supervisor. Defendant Captain Collins

(VAMC’s Assistant Chief of Police) reported the threat to Dr. Nasreen Bukhari (not a

party to this action), who recommended that Mr. Ingram receive a psychiatric assessment.

Dr. Bukhari informed Defendant Inhofe (VAMC’s Chief of Human Resources) and

Defendant Delise (VAMC’s Acting Assistant Director) of the situation. Mr. Inhofe and

Ms. Delise decided to talk to Mr. Ingram about the reported threat and ask him to go to

the Emergency Room for evaluation, in accordance with Dr. Bukhari’s instructions. Mr.

Ingram agreed to go to the emergency room with Mr. Inhofe and Ms. Delise. Captain

Collins directed Defendant Lt. Stevenson (a VAMC police officer) to escort Mr. Inhofe,

Ms. Delise, and Mr. Ingram to the emergency room.

In the emergency room, Mr. Inhofe and Ms. Delise accompanied Mr. Ingram to a

padded isolation room. Subsequently, another physician, Dr. Karunesh Singhal (not a

party to this action) filled out an affidavit stating that Mr. Ingram “has threatened to

assault his supervisor and in my evaluation is having homicidal ideation,” and that on that

basis, Mr. Ingram was sufficiently ill “that immediate emergency action [was]

necessary.” Aplt. App. at 78. When Mr. Ingram attempted to leave the emergency room,

4
Lt. Stevenson informed him that, although he was not under arrest, he was not free to

leave the emergency room. Mr. Ingram asserts that Lt. Stevenson said this “with his hand

on his firearm,” and that after making this statement, Lt. Stevenson shut and locked the

door to the isolation room. Aplt. Br. 4.

Mr. Inhofe and Ms. Delise waited with Mr. Ingram until Defendant Dr. Faruque (a

VAMC staff psychiatrist) arrived. After Dr. Faruque arrived, he examined Mr. Ingram.

During the examination, Mr. Ingram admitted saying something about “doing foolish

things to [his supervisor],” but denied having the intent to hurt or kill her. Aplt. App. at

104. Dr. Faruque’s report following the examination recommended “[i]npatient

admission to provide safe environment and further assessment.”3 Aplt. App. at 104. Mr.

3
Mr. Ingram claims that Dr. Faruque informed Mr. Ingram that even though he “found
that Plaintiff’s thought content had no suicidal, violent or paranoid ideations, Defendant
Faruque informed Plaintiff ‘in order to save my job and clear your name, I am going to
have to commit you to the psychiatric ward.’” Aplt. App. at 10. Mr. Ingram further
contends that Dr. Faruque told him that “[a]s of this moment you have no say in this
matter, you have no rights,” and that “[y]ou are either going voluntarily or by force.” Id.
at 10-11. While Dr. Faruque’s report following the examination did state that Mr.
Ingram’s “[t]hought content has no suicidal, violent or paranoid ideations,” the report
also recommended intake for further assessment, Id. at 104, and his affidavit before the
district court stated that he “determined that, because of the severity of the reported
threats and his obvious agitation, Mr. Ingram required a more thorough psychiatric
evaluation than I could perform in the limited time available to me in the Emergency
Room setting,” id. at 102.

5
Ingram agreed to be admitted for further evaluation. Dr. Faruque’s report states that he

shared this plan with Dr. Singhal, and that he “emphasized that [Mr. Ingram] is not to

leave [the] ER except for transfer to [the psychiatric ward],” and “suggested that [Mr.

Ingram] be transferred from [the] ER to [the psychiatric ward] under police escort.” Id.

at 105.

After arriving in the psychiatric ward, Defendant Dr. Feng (another VAMC staff

psychiatrist) interviewed Mr. Ingram for the inpatient admission evaluation. Mr. Ingram

denied making threats about his supervisor and stated that he wished to leave the hospital.

But Dr. Feng informed Mr. Ingram that “because of the report of the threat and the Third

Party Affidavit [signed by Dr. Singhal], [she] was obligated to conduct an investigation

to determine whether he and other people would be safe if he were discharged from the

hospital.” Id. at 106. She told Mr. Ingram that he could voluntarily sign himself in for

assessment, or that she would initiate the paperwork to obtain an Emergency Order of

Detention.

After this conversation, Mr. Ingram agreed to admit himself to the hospital, and

signed a voluntary consent form. But subsequently, although he repeatedly requested to

leave, Mr. Ingram was held in the psychiatric ward for over twenty-four hours before

being medically cleared and released.

II. Procedural Background
6
 Mr. Ingram subsequently filed an action against Defendants in their individual

capacities. He asserted that they had collectively violated his rights under the Fourth and

Fifth Amendments by detaining him against his will, and he sought a remedy.

Defendants filed motions to dismiss, arguing that, among other things, the court lacked

subject matter jurisdiction over Mr. Ingram’s claims. See Fed. R. Civ. P. 12(b)(1).

A primary argument of the Defendants was that Mr. Ingram should not be

permitted to pursue a cause of action under Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971), because under the VA Immunity Statute, the FTCA provided the sole

remedy for his claims. The district court agreed, concluding that Mr. Ingram’s claims fell

under the VA Immunity Statute, and that he therefore could not bring an action under

Bivens. Accordingly, it ruled that it lacked subject matter jurisdiction over Mr. Ingram’s

claims, and dismissed the claims against all Defendants without prejudice. Within thirty

days, Mr. Ingram filed a motion for reconsideration, which was denied by the district

court. Mr. Ingram timely appeals.

STANDARD OF REVIEW

Rule 12(b)(1) motions can take the form of either a “facial” or a “factual” attack

on the court’s subject matter jurisdiction. Stuart v. Colo. Interstate Gas Co., 271 F.3d

1221, 1225 (10th Cir. 2001). Where the party challenging subject-matter jurisdiction

mounts a facial attack, “the district court must accept the allegations in the complaint as

7
true.” Id. But if the challenging party brings a factual attack by “go[ing] beyond

allegations contained in the complaint and challeng[ing] the facts upon which subject

matter jurisdiction is based . . . [the] court has wide discretion to allow affidavits, other

documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id.

(internal quotation marks omitted). Here, the district court determined that it would

“consider the materials appended to the parties’ briefs,” Aplt. App. at 166; thus, we will

treat this as a factual attack and likewise consider the materials presented by the parties to

the district court.

“We review de novo . . . the district court’s determination of subject-matter

jurisdiction . . . .” Rio Grande Silvery Minnow (Hybognathus Amarus) v. Bureau of

Reclamation, 599 F.3d 1165, 1175 (10th Cir. 2010). Moreover, “[w]e review the

[district] court’s findings of jurisdictional facts for clear error,” and “[a] finding is clearly

erroneous when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.”

Id. (second alteration in original) (internal quotation marks omitted). But we will “view

the evidence in the light most favorable to the district court’s ruling.” Id. (internal

quotation marks omitted). Thus, “[i]f the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of appeals may not

reverse.” Id. (internal quotation marks omitted).

8
 DISCUSSION

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), the U.S. Supreme “Court recognized for the first time an implied private

action for damages against federal officers alleged to have violated a citizen’s

constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (internal quotation

marks omitted). In Bivens, the Court “held that a victim of a Fourth Amendment

violation by federal officers may bring suit for money damages against the officers in

federal court.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (citing Bivens, 403

U.S. 388). Following Bivens, the Supreme Court has authorized actions under Bivens on

only two occasions: first, the Court authorized a cause of action under Bivens to redress a

violation of the equal protection component of the Due Process Clause of the Fifth

Amendment, see Davis v. Passman, 442 U.S. 228 (1979), and second, the Court

authorized a Bivens remedy for the estate of a prisoner who had allegedly died as the

result of government officials’ deliberate indifference to his medical needs, in violation

of his rights under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).

But since the Supreme Court’s last decision to authorize a Bivens remedy in 1980,

the Court has “refused to extend Bivens liability to any new context or new category of

defendants.” Malesko, 534 U.S. at 68. Indeed, even though the “Court has had to decide

in several different instances whether to imply a Bivens action[,] . . . in each instance it

9
has decided against the existence of such an action.” Minneci v. Pollard, 132 S. Ct. 617,

622 (2012).

The standards for determining whether a Bivens remedy is appropriate have

evolved over time. In Green, the Court explained that a Bivens action is available unless

(1) “defendants demonstrate special factors counselling hesitation in the absence of

affirmative action by Congress,” or (2) “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.” 446 U.S. at 18–19 (emphasis

omitted). But since Green, the Supreme Court has relaxed these requirements, and has

declined to fashion a Bivens remedy, even where statutory remedies may not be equally

effective.

For instance, in Bush v. Lucas, the Court explained that the question whether a

Bivens cause of action is available “cannot be answered simply by noting that existing

remedies do not provide complete relief for the plaintiff.” 462 U.S. 367, 388 (1983). In

Bush, even though the Court “assum[ed] . . . a federal right ha[d] been violated and

Congress ha[d] provided a less than complete remedy for the wrong,” id. at 373, the

Court declined to fashion a Bivens remedy for a federal employee who claimed that his

superior had violated his rights under the First Amendment, id. at 368. The Court held

that because the claim at issue “ar[o]se out of an employment relationship that [was]

10
governed by comprehensive procedural and substantive provisions giving meaningful

remedies against the United States, it would be inappropriate for [the] Court to

supplement that regulatory scheme with a new nonstatutory damages remedy.” Id. at

367.

Similarly, in Schweiker v. Chilicky, the Court stated that “[t]he absence of

statutory relief for a constitutional violation . . . does not by any means necessarily imply

that courts should award money damages against the officers responsible for the

violation.” 487 U.S. 412, 421-22 (1988). Indeed, the Court held that “the concept of

‘special factors counselling hesitation in the absence of affirmative action by Congress’

has proved to include an appropriate judicial deference to indications that congressional

inaction has not been inadvertent.” Id. at 423. Accordingly, it declined to authorize a

Bivens remedy to address the improper denial of Social Security disability benefits, id. at

414, even though the Court acknowledged that “Congress ha[d] failed to provide for

‘complete relief,’” id. at 425, and “[t]he creation of a Bivens remedy would obviously

offer the prospect of relief for injuries that must now go unredressed,” id.

Consistent with Bush and Schweiker, in its recent jurisprudence, the Supreme

Court has generally prescribed two steps to apply when determining whether to recognize

a Bivens remedy. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007); accord Minneci, 132

S. Ct. at 623. First, “[t]here is the question whether any alternative, existing process for

11
protecting the interest amounts to a convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550.

Second, “even in the absence of an alternative, a Bivens remedy is a subject of

judgment;” and therefore “the federal courts must make the kind of remedial

determination that is appropriate for a common-law tribunal, paying particular heed . . . to

any special factors counseling hesitation before authorizing a new kind of federal

litigation.” Id.

In determining whether there is a Bivens remedy available to Mr. Ingram, we will

first consider whether the VA Immunity Statute provides an alternative, existing process

that amounts to a convincing reason to refrain from creating a new Bivens remedy. We

conclude that it does; specifically, we hold that the text of the VA Immunity Statute

creates an exclusive remedy that precludes a Bivens claim. We then consider whether

Mr. Ingram’s claims fall within the scope of the VA Immunity Statute, such that he is

precluded from bringing a cause of action under Bivens. We conclude that they do.

Mr. Ingram therefore may not pursue a cause of action under Bivens. Accordingly, we

need not consider whether there are other “special factors counselling hesitation before

authorizing” a Bivens remedy. See id.

I. The VA Immunity Statute Provides an Alternative, Existing Process That
Precludes a Bivens Remedy

12
 Mr. Ingram argues that he should be allowed to pursue a cause of action under

Bivens, because he contends that Defendants held him against his will in violation of his

rights under the Fourth and Fifth Amendments to the U.S. Constitution. But the district

court determined that the VA Immunity Statute provided Mr. Ingram with a remedy for

his claims, such that he did not have available a cause of action under Bivens. This

section will first set out the legal framework for analyzing the VA Immunity Statute, and

will then consider whether the Statute precludes a cause of action under Bivens.

A. The VA Immunity Statute

As context for analyzing the VA Immunity Statute, “[t]he doctrine of sovereign

immunity prohibits suits against the United States except in those instances in which it

has specifically consented to be sued.” Fent v. Okla. Water Res. Bd., 235 F.3d 553, 556

(10th Cir. 2000) (internal quotation marks omitted). “The FTCA constitutes a limited

waiver of the federal government’s sovereign immunity from private suit.” Estate of

Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005). “When

federal employees are sued for damages for harms caused in the course of their

employment, the [FTCA] generally authorizes substitution of the United States as the

defendant.” Hui v. Castaneda, 559 U.S. 799, 130 S. Ct. 1845, 1848 (2010) (citation

omitted). And “[t]he prerequisite for liability under the FTCA is a ‘negligent or wrongful

act or omission of any employee of the [Government] while acting within the scope of his

13
office or employment, under circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of the place where the act or

omission occurred.’” Id. at 1853 n.8 (quoting 28 U.S.C. § 1346(b)). In other words, the

FTCA allows the United States to be sued for claims arising out of negligent or wrongful

acts or omissions of its employees, when such employees are acting within the scope of

their duties. 28 U.S.C. § 1346(b)(1).

The VA Immunity Statute applies the remedy available against the United States

under the FTCA to damages arising from the provision of medical services by health care

employees of the VA. See 38 U.S.C. § 7316(a)(1), (f). Section 7316(a)(1) states:

The remedy . . . against the United States provided by sections 1346(b) and
2672 of title 28 . . . for damages for personal injury, including death,
allegedly arising from malpractice or negligence of a health care employee
of the Administration in furnishing health care or treatment while in the
exercise of that employee’s duties in or for the Administration shall be
exclusive of any other civil action or proceeding by reason of the same
subject matter against the health care employee (or employee’s estate)
whose act or omission gave rise to such claim.

38 U.S.C. § 7316(a)(1).

There are some exceptions to the FTCA’s waiver of sovereign immunity.

Specifically, 28 U.S.C. § 2680(h) states that the provisions of the FTCA

shall not apply to . . . [a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights . . . .

14
28 U.S.C. § 2680(h). Thus, under the general provisions of the FTCA, the United States

cannot be sued for claims arising out of these enumerated intentional torts. See id. But

in the context of the VA Immunity Statute, § 7316(f) states:

The exception provided in section 2680(h) of title 28 shall not apply to any
claim arising out of a negligent or wrongful act or omission of any person
described in subsection (a) in furnishing medical care or treatment
(including medical care or treatment furnished in the course of a clinical
study or investigation) while in the exercise of such person’s duties in or
for the Administration.

38 U.S.C. § 7316(f). In other words, “§ 2680(h) does not bar application of the FTCA to

[intentional] tort claims arising out of the conduct of VA medical personnel within the

scope of” 38 U.S.C. §7316(f). Franklin v. United States, 992 F.2d 1492, 1502 (10th Cir.

1993).4

B. The VA Immunity Statute Provides an Exclusive Remedy

We now consider whether the VA Immunity Statute provides an alternative,

existing process that amounts to a convincing reason to refrain from creating a new

4
In Franklin, we analyzed 38 U.S.C. § 4116, which is the precursor to the statute at issue
in this case (38 U.S.C. § 7316). 992 F.2d at 1500 n.8, 1502 (explaining that “§ 4116 was
repealed and reenacted as § 7316,” and that “[t]he version set out under the new
designation includes no pertinent substantive changes”). But the relevant language that
was formerly contained in § 4116(a) is substantially similar to the language currently
contained in §7316(a); thus, our holding in Franklin applies equally to 38 U.S.C. § 7316.

15
Bivens remedy. We conclude that the Statute provides an exclusive remedy that

precludes the creation of a remedy under Bivens.

In our analysis, there are two relevant provisions of the VA Immunity Statute at

issue—§ 7316(a)(1) and § 7316(f). We will consider each in turn.

1. Section § 7316(a)(1)

The Supreme Court has determined that language similar to that contained in

§ 7316(a)(1) creates an exclusive cause of action that precludes a Bivens remedy. In Hui,

the Supreme Court concluded that 42 U.S.C. § 233(a) precluded a Bivens action against

U.S. Public Health Service (“PHS”) personnel. 130 S. Ct. at 1848. In relevant part,

§ 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, including the conduct of clinical studies or investigation, 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 (or his estate) whose act or omission gave
rise to the claim.

42 U.S.C. § 233(a).

As background, in Hui, a man was detained by U.S. Immigration and Customs

Enforcement at the San Diego Correctional Facility. 130 S. Ct. at 1848. While there, he

sought a biopsy for a lesion, but a biopsy was never provided. Id. at 1848–89. After his

16
release from prison, later biopsy results confirmed that the detainee was suffering from

cancer, and after unsuccessful treatment, he died. Id. at 1849.

Before his death, the detainee brought a cause of action under Bivens, suing PHS

personnel for a violation of his constitutional rights. Id. at 1849. PHS personnel moved

to dismiss on the grounds that Ҥ 233(a) g[a]ve[] them absolute immunity from Bivens

actions by making a suit against the United States under the FTCA the exclusive remedy

for harms caused by PHS personnel in the course of their medical or related duties.” Id.

at 1849-50. The district court denied the motion, and the Ninth Circuit affirmed. Id. at

1850. Among other things, the Ninth Circuit applied the holding in Green that “a Bivens

remedy is unavailable only when an alternative remedy is both expressly declared to be a

substitute and can be viewed as equally effective,” and concluded that “§ 233(a) d[id] not

expressly make the remedy under the FTCA a substitute for relief under Bivens.” Id.

Moreover, “[f]or essentially the reasons given in [Green], the [Ninth Circuit] Court of

Appeals also determined that the FTCA remedy is not equally effective as a Bivens

remedy.” Id. (citation omitted).

The Supreme Court reversed the Ninth Circuit’s decision, holding that the text of

§ 233(a) precluded a Bivens action against petitioners. Id. at 1855. Specifically, the

Court concluded that § “233(a) makes the FTCA remedy against the United States

‘exclusive of any other civil action or proceeding’ for any personal injury caused by a

17
PHS officer or employee performing a medical or related function ‘while acting within

the scope of his office or employment,’” and it held that “[b]ased on the plain language of

§ 233(a) . . . PHS officers and employees are not personally subject to Bivens actions for

harms arising out of such conduct.” Id. at 1848.

In this case, the language of 38 U.S.C. § 7316(a)(1) mirrors the language of §

233(a). Both 38 U.S.C. § 7316(a) and 42 U.S.C. § 233(a) state that, under these

provisions, “[t]he remedy against the United States provided by sections 1346(b) and

2672 of title 28 . . . shall be exclusive of any other civil action or proceeding by reason of

the same subject-matter against the . . . employee . . . whose act or omission gave rise to

[the] claim.” 38 U.S.C. § 7316(a)(1) (emphases added); accord 42 U.S.C. § 233(a). In

Hui, the Court stated:

By its terms, § 233(a) limits recovery for such conduct to suits against the
United States. The breadth of the words “exclusive” and “any” supports
this reading, as does the provision’s inclusive reference to all civil
proceedings arising out of “the same subject-matter.”

130 S. Ct. at 1851. The same is true here; the wording of § 7316(a)(1) indicates that the

VA Immunity Statute is an exclusive remedy.

Mr. Ingram argues the Supreme Court’s holding in Carlson v. Green requires that

he be allowed to proceed with a cause of action under Bivens. In Green, a respondent

sued on behalf of her deceased son’s estate, alleging that he had died from injuries

18
inflicted by federal prison officials in violation of his rights under the Eighth

Amendment. 446 U.S. at 16. In authorizing a cause of action under Bivens, the Court

rejected prison officials’ argument that the remedy available under the FTCA precluded

respondent’s Bivens claim. Id. at 19-20. Although both Green and Mr. Ingram’s case

involve the question whether the remedy available under the FTCA precludes a Bivens

claim, Green does not control this case.

Green’s claim against federal prison officials for alleged violations of his Eighth

Amendment rights did not implicate the VA Immunity Statute. Thus, the Court in Green

was not considering the VA Immunity Statute when it determined that the FTCA did not

foreclose a cause of action under Bivens. And, the Supreme Court recognized in Hui that

some statutory provisions may make the FTCA an exclusive remedy, such that it is not

appropriate for courts to authorize a cause of action under Bivens. 130 S. Ct. at 1848.

Thus, although there may be circumstances where the availability of a remedy under the

FTCA may not foreclose a Bivens action, Green, 446 U.S. at 19–20, other statutory

provisions relating to the FTCA do preclude such a remedy. The Supreme Court has held

that one such provision is 42 U.S.C. § 233(a). Hui, 130 S. Ct. at 1855. Similarly, we

hold that § 7316(a)(1) makes the VA Immunity Statute an exclusive remedy and

therefore precludes a claim under Bivens.

2. Section § 7316(f)
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 Section 7316(f) expands § 7316(a)(1) to provide a remedy under the FTCA for

intentional torts arising in the context of VA health care employees providing medical

care or treatment. See 38 U.S.C. § 7316(f). This provision was added to the VA

Immunity Statute in 1988.5 Pub. L. 100-322. Under § 7316(f), the exception to the

waiver of sovereign immunity for certain intentional torts that is contained in 28 U.S.C. §

2680(h) does not apply to “any claim arising out of a negligent or wrongful act or

omission of any . . . [health care employee of the VA] in furnishing medical care or

treatment . . . while in the exercise of such person’s duties in or for the Administration.”

38 U.S.C. § 7316(f). Thus, § 7316(f) allows the United States to be sued under the FTCA

for certain intentional torts committed by VA health care employees in the context of

providing medical care. See Franklin, 992 F.2d at 1502.

In Franklin, we previously considered the purpose and effect of subsection (f).

Specifically, we explained that, prior to the amendment of the VA Immunity Statute to

include subsection (f), “in circumstances where the government’s waiver of sovereign

immunity was excluded by § 2680(h) and, therefore, the injured party had no possible

5
At the time subsection (f) was added, the VA Immunity Statute was codified at 38
U.S.C. § 4116.

20
remedy under the FTCA, a cause of action against the responsible health worker could be

maintained.” Id. at 1500.

This had created a difficulty, because, depending on state law, malpractice actions

might be based on a theory of negligence or a theory of battery. See id. And unless a

statutory exception applies, a person cannot bring a claim for battery under the FTCA.

28 U.S.C. § 2680(h). Thus, under the FTCA generally, “[i]f the negligence theory [of

malpractice] applies, redress against the government under the FTCA is available, while

if the battery theory controls, the action is specifically excluded from the government’s

waiver of sovereign immunity under the FTCA.” Franklin, 992 F.2d at 1496 (citations

omitted). Before the enactment of § 7316(f), this was true under the VA Immunity

Statute. But “[e]ventually, Congress recognized this situation—and, specifically, the

example of medical battery—as a problem to be corrected.” Id. at 1500. To illustrate

this point, we quoted in Franklin the following legislative history for § 7316(f):

For many years, VA medical personnel have been protected from personal
liability in medical malpractice actions arising out of allegedly negligent
conduct in the furnishing of medical care or treatment to veterans.
However, the Government does not extend this immunity to actions arising
out of intentional conduct—so-called “intentional torts.” In some
instances, State law characterizes an act of medical malpractice as an
intentional tort, leaving VA medical personnel potentially liable for an
action for which the law intends the Government to assume liability. As an
example, if a patient consents to an operation on his left elbow, but the
physician mistakenly operates on the right elbow, responsibility for this
action would lie with the United States. However, if the suit was based on

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 a theory that a battery occurred, which is defined as any contact with a
person without that person’s consent, the Government is not allowed to
assume the employee’s liability. In essence, State law, which controls the
character of the action brought against VA medical personnel, could defeat
the intent of the Federal law to provide such employees with immunity.

Id. at 1500 (quoting H.R.Rep. No. 100–191, 100th Cong., 2d Sess. 19 (1988), reprinted in

1988 U.S.C.C.A.N. 432, 450).

Although Congress was specifically concerned with medical battery, the remedy

available under § 7316(f) is not limited to battery. Instead, by rendering 28 U.S.C. §

2680(h) inapplicable, § 7316(f) allows the United States to be sued for “assault, battery,

false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights,” 28 U.S.C. 2680(h), when

such claims arise in the context of VA health care employees providing medical care or

treatment, 38 U.S.C. § 7316(f). As we noted in Franklin, Congress could have resolved

the problem in a variety of ways, and it need not have waived sovereign immunity for all

of the intentional torts listed in 28 U.S.C. § 2680(h), but “Congress chose . . . ‘to expand

the circumstances under which the Federal government accepts liability for the acts of its

employees acting within the scope of their employment so as to cover actions of VA

health-care employees that are characterized as intentional torts under the laws of various

states.’” Franklin, 992 F.2d at 1500 (emphasis in original) (quoting 1988 U.S.C.C.A.N.

at 502–03)). Thus, in the context of VA health care employees providing medical care or

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treatment, § 7316(f) provides a remedy under the FTCA for claims of intentional torts,

including false arrest and false imprisonment.

In sum, § 7316(f) provides alternative, existing process for protecting the interests

implicated in this appeal, see Wilkie, 551 U.S. at 550, by expanding the scope of

§ 7316(a)(1) and providing a remedy under the FTCA for intentional torts arising in the

context of VA health care employees providing medical care or treatment. 38 U.S.C. §

7316(f). Section 7316(f) therefore “insulate[s] the individual government employee by

nullifying § 2680(h) and thereby expanding the injured party’s remedy against the

government under the FTCA.” Franklin, 992 F.2d at 1501.

For the foregoing reasons, we conclude that there is an adequate alternative

remedy available under the VA Immunity Statute; indeed, the Statute provides an

exclusive remedy that precludes a cause of action under Bivens for claims that fall within

the scope of the Statute. Accordingly, we now consider whether Mr. Ingram’s claims fall

within the scope of the VA Immunity Statute.

II. Mr. Ingram’s Claims Fall Within the Scope of the VA Immunity Statute

Mr. Ingram argues that his claims do not fall within the scope of the VA Immunity

Statute for two reasons. First, he contends that the VA Immunity Statute is not

implicated, because his claims do not arise from malpractice or negligence. Specifically,

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he “alleges that his confinement was not the result of medical evidence, evaluation or

opinion, but instead was a result of intentional acts of Defendants unrelated to any

medical opinion of physicians.” Aplt. Br. at 13. Second, he also argues that Defendants

are not qualified for immunity under the Statute because they do not fall within the

definition of “other supporting personnel.”

As background, Mr. Ingram alleges in his complaint that he was “wrongfully and

unlawfully detained and held in the psychiatric ward as a result of the actions of

Defendant Furuque [sic], Defendant Feng, . . . Defendant DeLise [sic], Defendant Inhofe,

Defendant Lt. Stevenson, and Defendant Captain Collins, who were acting within the

course and scope of their employment with [the VA].” Aplt. App. at 12. He goes on to

argue that: “Defendants conducted an objectively unreasonable and insufficient

investigation to determine whether there was a sufficient basis for holding Plaintiff

against his will in the psychiatric ward,” and that “[b]ased upon the actions, assertions,

and statements of Defendants, Plaintiff was coerced into signing the consent for

admission form against his will.” Id. He also contends that “[t]he conduct of Defendants

resulted in Plaintiff Delbert Ingram being falsely, maliciously, and unlawfully detained

and held in the psychiatric ward.” Id. And finally, he asserts that “Defendants Furuque

[sic], Feng, . . . DeLise [sic], Inhofe, Lt. Stevenson, and Captain Collins’ actions were

[done with] willful, wanton, intentional, and . . . reckless disregard.” Id. at 15.

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 As to Mr. Ingram’s first argument, it is plain that his claims fall within the scope

of the VA Immunity Statute. As discussed above, the VA Immunity Statute immunizes

VA health care employees for “damages . . . allegedly arising from malpractice or

negligence of a health care employee of the [VA],” 38 U.S.C. § 7316(a)(1), as well as

claims for “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse

of process, libel, slander, misrepresentation, deceit, or interference with contract rights,”

28 U.S.C. § 2680(h), that “aris[e] out of a negligent or wrongful act or omission of

any . . . [health care employee] in furnishing medical care or treatment,” 38 U.S.C. at

§ 7316(f). Mr. Ingram’s claims arise from the medical care he received at the VAMC.

Specifically, his claims indicate either that Defendants’ actions were negligent and fell

below an objective standard of care, which would implicate a claim of malpractice, see

Id. § 7316(a)(1), or that they were wrongful acts or omissions that would implicate a

claim for an intentional tort, within the context of providing medical care or treatment,

see 38 U.S.C. §§ 2680(h) & 7316(f). And because he argues that he was unlawfully

detained and held as a result of Defendants’ “willful, wanton, intentional, and . . .

reckless disregard,” Aplt. App at 15, it is evident that he is arguing that Defendants

committed an intentional tort—specifically, false arrest or false imprisonment—for which

a remedy under the FTCA is provided by § 7316(f). Thus, his claims fall within the

scope of the VA Immunity Statute.

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 As to Mr. Ingram’s second argument, we conclude that the district court did not

err in determining that the Defendants were immune to suit as “health care employee[s]”

within the meaning of the VA Immunity Statute. Section 7316(a)(2) provides:

the term “health care employee of the Administration” means a physician,
dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant,
expanded-function dental auxiliary, pharmacist, or paramedical (such as
medical and dental technicians, nursing assistants, and therapists), or other
supporting personnel.

38 U.S.C. § 7316(a).

Mr. Ingram argues that Defendants are not “other supporting personnel,” but we

need not consider that argument as to Defendants Dr. Faruque and Dr. Feng, because

both doctors are “physicians”—specifically, VAMC staff psychiatrists. The district court

found that the actions of both Dr. Faruque and Dr. Feng

were actions relevant to the provision of medical care[,] . . . . that each
action was undertaken based on decisions and information pertinent to
Defendants as a result of their specialized education and training in the field
of medicine/psychology[,] . . . . [and] that their contact with Plaintiff arose
as a result of the need for an evaluation by a medical professional.

Aplt. App. at 167. We agree. Because both doctors are physicians and their interactions

with Mr. Ingram were in the scope of their duties and in the course of furnishing medical

care, see 38 U.S.C. § 7316(a), (f), they are entitled to immunity under the VA Immunity

Statute.

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 As to the other Defendants, the district court determined that they were acting as

supporting personnel to medical providers in their interactions with Mr. Ingram. Section

7316(a)(2) does not provide a definition for “other supporting personnel.” But the phrase

is not limited to “medical personnel”—in other words, it is not necessary under the

statute that “other supporting personnel” must themselves be qualified to practice

medicine or be regularly employed as medical personnel. See 38 U.S.C. § 7316(a)(2).

Instead, the statute defines “health care employee” as

physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician
assistant, expanded-function dental auxiliary, pharmacist, or paramedical
(such as medical and dental technicians, nursing assistants, and therapists),
or other supporting personnel.

Id. (emphases added). Thus, employees of the VA may be “health care employee[s]”

under the statute if they are employed as one of the listed types of medical personnel, or

if they are providing support to such medical personnel. See id. And for other

supporting personnel to qualify for immunity under § 7316(a)(1) or § 7316(f), they must

provide support for medical personnel, id. § 7316(a)(2), “in furnishing medical care or

treatment . . . while in the exercise of [their] duties in or for the Administration,” id. §

7316(f); accord Id. § 7316(a)(1).

Here, the district court found that “[b]ut for the perceived need to provide medical

care to Plaintiff in the form of psychiatric care, neither Defendants Stevenson nor Collins

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would have had any contact with Plaintiff.” Similarly, it found that “Defendants

DeLise’s [sic] and Inhofe’s interaction with Plaintiff arose solely at the behest of or in

support of the medical personnel who were evaluating Plaintiff’s condition.” Aplt. App.

at 170. Viewing the evidence in the light most favorable to the district court’s ruling, the

court’s findings regarding the interactions between Mr. Ingram and Defendants Delise,

Inhofe, Stevenson, and Collins were not clearly erroneous. Rio Grande Silvery Minnow,

599 F.3d at 1175. Each of these Defendants testified that he or she was acting within the

scope of his or her duties and pursuant to instructions from medical personnel.

Accordingly, the record before the district court supports that these Defendants interacted

with Mr. Ingram only to provide support to medical personnel in furnishing medical care

to Mr. Ingram.

Mr. Ingram’s sole argument as to why Defendants could not have been other

“supporting personnel,” is that they were acting under the direction of Dr. Bukhari, and

Mr. Ingram contends that Dr. Bukhari did not “t[ake] any action that could give rise to a

malpractice claim.”6 Aplt. Br. at 16. Mr. Ingram misses the point. Dr. Bukhari is not a

6
Mr. Ingram does not make any other arguments as to why Defendants Inhofe, Delise,
Stevenson, and Collins are not “other supporting personnel” under the VA Immunity
Continued . . .

28
party to this action, and it is irrelevant whether Mr. Ingram’s allegations would give rise

to a cause of action against Dr. Bukhari under the VA Immunity Statute. The only

relevant question to consider in determining whether the four Defendants are other

“supporting personnel” is whether they were providing support to medical personnel in

furnishing health care or treatment. Id. Because their interactions with Mr. Ingram took

place solely in the context of providing support to medical personnel in furnishing

medical care to Mr. Ingram, we agree that they are “other supporting personal” under the

VA Immunity Statute.

In sum, Mr. Ingram’s claims fall within the scope of the VA Immunity Statute,

and the Defendants fall within the Statute’s definition of health care employees. And

because we hold that the FTCA provides an alternative, existing process for addressing

Mr. Ingram’s interests that is exclusive of any other cause of action arising from the same

subject matter, Mr. Ingram may not pursue a cause of action under Bivens. For that

______________________________________

Cont.

Statute, and “[t]his court . . . will not craft a party’s arguments for him,” Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).

29
reason, the district court did not err in concluding that it lacked subject-matter jurisdiction

to consider Mr. Ingram’s claims.

CONCLUSION

Mr. Ingram has an alternative, existing process for protecting his interests

available through the VA Immunity Statute. And the language of the Statute provides for

an exclusive remedy that precludes Mr. Ingram from pursuing a cause of action under

Bivens. Because Mr. Ingram’s claims fall within the scope of the VA Immunity Statute,

we AFFIRM the district court’s decision concluding that it lacked subject matter

jurisdiction and dismissing Mr. Ingram’s claims without prejudice.

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