IDAHO GIRL LOSES BIVENS CLAIM OVER PROTECTED WITNESS.

A child sexually abused by a convicted felon in the witness protection program cannot recover against the federal agents responsible for him because the abuse wasn't reasonably foreseeable, the Ninth U.S. Circuit Court of Appeals ruled Aug. 21.

Lawrence v. U.S. et al. (01-36142) involved Fernando Bello, alias Fernando Soler, who was employed at Challenge Group Home for juveniles in Idaho at the time he began abusing the girl. It continued after he left the job and she was placed in his custody as his foster child.

She sued the United States under the Federal Tort Claims Act and made Bivens claims against both U.S. Marshal Matt Hanrahan, who was assigned to protect Bello, and U.S Probation Officer Timothy Messuri, who was to supervise him.

U.S. District Judge Lynn Winmill dismissed the claims, and the Ninth Circuit panel affirmed the rulings.

Federal agents may be sued for monetary damages under a 1971 Supreme Court ruling, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, but several tests must be applied.

One is that the plaintiff's constitutional right is clearly established, and the Ninth Circuit said this girl clearly had a right to personal security.

But another is whether the federal agents' actions were objectively reasonable, and the appellate panel said they were in this case.

Although they allowed Bello to take the job at the group home, "Bello's criminal history consisted of a drug trafficking conviction, but no crimes of violence or sexual abuse," Judge Donald Lay wrote for the panel.

"Although it might have been foreseeable that Bello would distribute illegal drugs to the children at CGH, it was not foreseeable that he would sexually abuse them."

The panel also affirmed the lower court's ruling that the United States cannot be sued under the FTCA, because the agents were carrying out a discretionary function.