Diaz-Romero v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1607

WILFREDO DIAZ-ROMERO, M.D.; LUZ ARIANA ORTIZ-COLON;
CONJUGAL PARTNERSHIP DIAZ-ORTIZ,

Plaintiffs, Appellants,

v.

MICHAEL B. MUKASEY,* Attorney General; RICHARD E. CHAVEZ,
Warden of the Metropolitan Detention Center, Guaynabo, PR;
EDWARD GONZALEZ, Warden, in his official and personal capacities;
NOEMI POTTS, in her official and personal capacities;
DR. OLGA GRAJALES, in her official and personal capacities;
A-Z INSURANCE COMPANIES; JANE DOE; RICHARD ROE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,

and Smith,** District Judge.

Julio C. Alejandro Serrano, with whom Nicolas Nogueras, Jr.,

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey has been substituted for former Attorney General
Alberto R. Gonzales.
**
Of the District of Rhode Island, sitting by designation.
and Nicolas Nogueras Law Office were on brief, for appellants.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson
Pérez Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

January 31, 2008
 HOWARD, Circuit Judge. The district court dismissed the

complaint of Wilfredo Diaz-Romero for lack of subject matter

jurisdiction. We affirm because Diaz-Romero's status as a

commissioned officer of the Public Health Service ("PHS") bars his

suit for service connected injuries.

I. Facts

Because the complaint was resolved on a motion to

dismiss, the facts are set forth as alleged in the complaint and

inferences taken in the light most favorable to Diaz-Romero, the

non-moving party. Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d

92, 94 (1st Cir. 2007).

Wilfredo Diaz-Romero was a commissioned officer with the

PHS, an agency of the Department of Health and Human Services.

Like the armed service branches, the PHS is a "uniformed service"

of the United States. 42 U.S.C. § 201(p). While serving with the

PHS, Diaz-Romero was assigned to the Federal Bureau of Prisons'

("BOP") Metropolitan Detention Center in Guaynabo, Puerto Rico as

"Clinical Director."

The PHS and the BOP have a detailed Memorandum of

Understanding ("MOU") in place that governs conditions of

employment for PHS officers placed with the BOP.1 In particular,

1
The MOU was filed as an exhibit to the government's motion to
dismiss. We are permitted to rely on this document in resolving
the jurisdictional question. See Gonzalez v. United States, 284
F.3d 281, 288 (1st Cir. 2002); Aversa v. United States, 99 F.3d
1200, 1210 (1st Cir. 1996).

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the MOU establishes both a discipline and evaluation process for

commissioned officers of the PHS assigned to the BOP. Diaz-

Romero's role within the PHS and his salary were both outside the

BOP's control.

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.

Following the second incident Diaz-Romero suffered a

series of adverse employment actions. A performance evaluation of

him was revised downward. He was also suspended, with pay, from

his duties as Clinical Director and then demoted to the inferior

position of "Medical Officer." Ultimately, both Diaz-Romero's

assignment with the BOP and his commission with the PHS were

terminated.

These unfavorable employment actions prompted Diaz-

Romero, his spouse, and their conjugal partnership, to file this

action. The suit named the United States Attorney General and the

warden of the Metropolitan Detention Center in their official

capacities, as well as several other current and former BOP and PHS

employees in both their personal and official capacities.

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 Diaz-Romero asserted that he was punished for defending

against the sexual harassment claim and not because of the incident

with the inmate. He brought a bevy of claims, including claims

under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 2671 et seq., alleging that the defendants

engaged in a conspiracy to violate his constitutional rights and

created a hostile work environment. Specifically, Diaz-Romero

claimed the defendants violated the Fourth, Fifth, Ninth, and

Fourteenth Amendments and committed torts under article 1802 of the

Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5191.2 He sought

both compensatory and punitive damages.

In dismissing Diaz-Romero's claims for lack of subject

matter jurisdiction, the district court ruled that the FTCA and

Bivens claims were barred by the doctrine of Feres v. United

States, 340 U.S. 135 (1950), which limits suits for injuries

arising "incident to military service." The court noted that,

pursuant to 42 U.S.C. § 213(f)3, Diaz-Romero was, at all times

2
Although Diaz-Romero also filed claims pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and 42
U.S.C. §§ 1983, 1985, and 1986, he does not appeal the district
court's resolution of those claims.
3
This statute reads:

Active service of commissioned officers of the [Public
Health] Service shall be deemed to be active military
service in the Armed Forces of the United States for
purposes of all laws related to discrimination on the

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relevant to the complaint, deemed to be in active military service

in the Armed Forces. Because Diaz-Romero was in active service in

the Armed Forces at the time of his injuries, the court reasoned,

the injuries he suffered were "incident to military service" and

thus triggered the Feres doctrine's bar.

II. Discussion

Diaz-Romero appeals the district court's dismissal of his

FTCA4 and Bivens claims, contending that the court erroneously

relied on the Feres doctrine. We review a dismissal for lack of

subject matter jurisdiction pursuant to the Feres doctrine de novo.

See Day v. Mass. Air Nat'l Guard, 167 F.3d 678, 681 (1st Cir.

1999).

A. FTCA claims

The United States has consented, in the FTCA, to be sued

for damages for personal injury caused by "the negligent or

basis of race, color, sex, ethnicity, age, religion,
and disability.
4
Diaz-Romero identifies three torts under Puerto Rico law that
underlie his FTCA claims: (1) abuse of process; (2) intentional
infliction of emotional distress; and (3) hostile workplace
environment. Although the district court did not examine his
tort claims in any detail, and instead dismissed the case on
jurisdictional grounds, we note that Diaz-Romero only alleges one
tort claim that we conclude is clearly colorable under the FTCA
and Puerto Rico law - intentional infliction of emotional
distress. The tort of abuse of process is specifically excepted
from the FTCA. See 28 U.S.C. § 2680(h). Moreover, although
Diaz-Romero asserts that Puerto Rico law recognizes the tort of
hostile workplace environment, he fails to provide any case law
in support of his contention.

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wrongful act or omission" of a federal employee "while acting

within the scope of his employment," if under the same

circumstances a private employer would be liable for the acts of

his employee under the local law. 28 U.S.C. §§ 1346(b), 2674,

2675(a). The Feres doctrine is a judicially crafted exception to

the FTCA. See Feres, 340 U.S. at 135; Day 167 F.3d at 681. It

bars military service members from bringing FTCA suits against the

United States for injuries that "arise out of or are in the course

of activity incident to service." See Feres, 340 U.S. at 146.

Courts have identified a number of justifications for the doctrine.

One of the most often cited justifications is that, absent the

Feres doctrine, the judiciary would become ensnared in "sensitive

military affairs at the expense of military discipline and

effectiveness." See United States v. Johnson, 481 U.S. 681, 690

(1987)(quoting United States v. Shearer, 473 U.S. 52, 59 (1985));

see also Day 167 F.3d at 682 (noting the Supreme Court's emphasis

on the doctrine's purpose of avoiding undue judicial interference

in military discipline and "grievance matters").

Although we have not previously explicitly held that the

Feres doctrine applies to commissioned officers in the PHS, Diaz-

Romero does not contest the doctrine's general applicability to

members of the PHS. We conclude that Feres applies to the PHS.

The similarities and relation between the armed service branches

and the PHS merit the Feres doctrine's extension to health service

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officers. The PHS is, along with the armed service branches,

designated as a uniformed service of the United States. 42 U.S.C.

§ 201(p). It is organized along military lines, each commissioned

officer grade having a statutorily stated military rank equivalent.

42 U.S.C. § 207. Commissioned officers of the PHS, or their

surviving beneficiaries, are entitled to many of the same statutory

rights, benefits, privileges, and immunities provided to

commissioned officers of the United States Army or their surviving

beneficiaries, 42 U.S.C. § 213a(a), and PHS regulations specify

that failure to follow the orders of superior officers will result

in disciplinary action. Commissioned Corps Personnel Manual,

Chapter CC46, Subchapter CC46.4. Importantly, in times of war or

emergency the President may transform the PHS into a regular branch

of the armed services, subject to the Uniform Code of Military

Justice. 42 U.S.C. § 217. It is not surprising then, that other

circuits considering this question have concluded that the Feres

doctrine applies to commissioned officers in the PHS. See Scheppan

v. United States, 810 F.2d 461, 463 (4th Cir. 1987); Alexander v.

United States, 500 F.2d 1, 4 (8th Cir. 1974); see also Levin v.

United States, 403 F. Supp. 99, 103 (D. Mass. 1975)("There is no

reasonable way, in law or logic, to distinguish the position of the

PHS officer from that of the military man, for purposes of tort

suits."). We join the other circuits.

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 Even though the Feres doctrine applies to Diaz-Romero as

a health officer, there is an additional question that must be

answered in order to determine whether the doctrine bars his tort

claims. That question is whether the injuries he suffered were

"incident to service." As we have noted, determining whether an

injury was incident to service involves

asking whether it occurred on a military
facility, whether it arose out of military
activities or at least military life, whether
the alleged perpetrators were superiors or at
least acting in cooperation with the military,
and--often stressed as particularly important,
whether the injured party was himself in some
fashion on military service at the time of the
incident. No single element in the equation,
the Supreme Court has said, is decisive.
Day, 167 F.3d at 682 (internal citation omitted).

Here, the incidents that are alleged to have caused Diaz-

Romero's injuries occurred while Diaz-Romero was actively serving

in his PHS assigned post with the BOP. Specifically, Diaz-Romero

claims that supervisors injured him by applying BOP regulations

against him. See Chatman v. Hernandez, 805 F.2d 453, 457 (1st Cir.

1986) (concluding injury was incident to service because, among

other things, "[a]t the time of alleged wrongs in this case,

appellant was in fact a serviceman on active duty."); see also

Levin, 403 F. Supp. at 103 (noting plaintiff's injuries were

"clearly 'service connected'" where harassment on job caused

plaintiff, a commissioned officer in the PHS, to commit suicide).

Moreover, the alleged perpetrators in this case, Diaz-Romero's

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supervisors at the BOP, were acting in cooperation with the PHS, in

that the PHS placed Diaz-Romero with the BOP and that the BOP's

control over Diaz-Romero was subject to the MOU between the PHS and

the BOP.

Diaz-Romero argues that his injuries were not incident to

service because his service with the BOP was not like military

service. He notes that the BOP is guided by civilian objectives

and principles and that the defendants did not act pursuant to

military commands. Consequently, his thesis runs, one of the Feres

doctrine's primary purposes, preventing judicial involvement in

sensitive military affairs at the expense of military discipline

and effectiveness, would not be served by barring his lawsuit.

This argument is more properly aimed at the invocation of

Feres in the first place rather than the application of Feres's

"incident to service" test to the injuries alleged, and we have

already determined that the Feres doctrine applies to commissioned

officers of the PHS. Put simply, the largely fact-specific

"incident to service" test is not amenable to Diaz-Romero's

argument.

Moreover, the specific point of his argument -- that

applying the Feres doctrine to bar his lawsuit would not serve the

purposes of the doctrine -- also misses the mark. As we noted

earlier, one of the purposes of the Feres doctrine is to prevent

the judiciary from becoming embroiled in sensitive military affairs

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at the expense of military discipline and effectiveness. Because

of the similarities between the PHS and other armed service

branches, courts have noted that barring tort suits by commissioned

officers of the PHS for service-related injuries serves this same

purpose. See Alexander, 500 F.2d at 4 ("[The similarities] to

military service illustrate how the concern voiced in Feres

regarding the effect of tort suits on discipline and internal

structure appl[ies] with equal force to the Public Health

Service."); see also Levin, 403 F. Supp. at 103 (rejecting as

"invalid" plaintiff's assertion that disciplinary concerns were of

minimal importance in the PHS).

It is not difficult to see how the discipline and

effectiveness purpose of the Feres doctrine is served by barring

Diaz-Romero's action. Diaz-Romero claims that he suffered a number

of injuries while serving with the BOP. These injuries include:

(1) a demotion from Clinical Director to Medical Officer; (2)

eventual termination of his commission; and (3) injuries stemming

from the BOP's evaluation process. He claims that the defendants'

application of BOP regulations caused his injuries.

Forming an intrinsic part of these regulations is the MOU

between the BOP and the PHS. In the MOU, the PHS and the BOP

created an internal structure to deal with disciplinary actions

taken against PHS officers and the BOP's evaluation of PHS

officers. For example: (1) The PHS must exercise professional

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oversight of PHS commissioned officers assigned to the BOP; (2) the

BOP is tasked with advising the PHS of disciplinary actions taken

against PHS commissioned officers; (3) the PHS is ultimately

responsible for actions taken against PHS commissioned officers

with respect to substandard performance or misconduct; and (4) all

evaluations of PHS officers must be completed in accordance with

PHS procedures. Unquestionably, Diaz-Romero's lawsuit would

require judicial inquiry into the disciplinary scheme and

evaluation procedures set forth in the MOU. Such an inquiry would

frustrate the Feres doctrine's purpose of avoiding interference

with disciplinary schemes implemented by the uniformed services, in

this case those of the PHS.

B. Bivens claims

In addition to his claims under the FTCA, Diaz-Romero

sued his federal supervisors under Bivens in both their official

and individual capacities. These claims require only the briefest

treatment. The Feres doctrine applies with equal force to bar

Bivens suits if the suits are based on injuries that "arise out of

or are in the course of activity incident to service." See Wright

v. Park, 5 F.3d 586, 590 (1st Cir. 1993) (noting Supreme Court's

decision in United States v. Stanley, 483 U.S. 669 (1987) "makes

pellucid that the exception to Bivens liability . . . is

coextensive with the exception to tort liability established by

Feres and its progeny"). We have already concluded that Feres bars

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Diaz-Romero's FTCA claims; it necessarily follows that his Bivens

claims, based on the same events that gave rise to his FTCA claims,

are barred as well.

Affirmed.

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