Public Health Bivens Claims
The courts are usually reticent to allow Bivens claims in public health cases. In Nebraska Beef v. Greening, 398 F.3d 1080 (8th Cir. 2005) , plaintiff brought a Bivens suit against U.S. Dept. of Agriculture food safety inspectors for damages to its reputation and business. The appellate court dismissed the suit, noting that the Supreme Court has been reluctant to extend Bivens suits to new areas. The court explained that there is a "presumption against judicial recognition of direct actions for violations of the Constitution by federal officials or employees," and "if Congress has not explicitly created such a right of action, and if it has created other remedies to vindicate (though less completely) the particular rights being asserted in a given case, the chances are that the courts will leave the parties to the remedies Congress has expressly created for them." Id. at 1084. In Nebraska Beef, the court found that Congress had already created a comprehensive regulatory regime, and the existence of a right to judicial review under the Administrative Procedure Act is sufficient to preclude a Bivens action.
United States Public Health Service employees were found liable under Bivens for the conscious disregard of the medical needs of an INS detainee, who died of cancer after being repeatedly denied medical care.[Castaneda v. United States, 546 F.3d 682 (9th Cir. 2008) ] The court rejected claims by the defendants that the case should have been brought as a negligence action under the Federal Tort Claims Act , finding that their intentional actions went beyond negligent care and that congress did not intend to make the FTCA the sole remedy against PHS employees.