Full opinion text
MEMORANDUM AND ORDER YOUNG, Chief Judge. I. Introduction. This cause of action arises out of experiments conducted on individuals under the care of Massachusetts General Hospital and Brookhaven National Laboratory in the 1950’s and 1960’s. In the Second Amended Complaint (the “Complaint”), the plaintiffs (collectively, the “Plaintiffs”) allege that various doctors, institutions, and the United States government conspired to conduct “extensive, unproven and dangerous medical experiments on over 140 terminally ill patients, without their knowledge or consent.” Dkt. #21 at ¶ 2. The Plaintiffs seek redress from Lee Farr, M.D., and Associated Universities, Inc. (together, “Associated Universities”); William H. Sweet, M.D., and Massachusetts General Hospital (together, “Mass General”); the Massachusetts Institute of Technology (“MIT”); and the United States. This action has already been the subject of two written orders by this Court. See Heinrich v. Sweet, 44 F.Supp.2d 408 (D.Mass.1999) (“Heinrich I”); Heinrich v. Sweet, 49 F.Supp.2d 27 (D.Mass.1999) (“Heinrich II”). Before the Court now are a variety of dispositive motions filed by the various defendants: (a) A motion for partial summary judgment brought by MIT regarding the applicability of the Price-Anderson Act; (b) A motion to dismiss and a motion for judgment on the pleadings brought by Associated Universities and Mass General, respectively, arguing that the Plaintiffs’ state law causes of action are time-barred under applicable statutes of limitations; (c) Motions by each of the private defendants seeking either dismissal or judgment in its favor on the Bivens count of the Complaint, arguing that the Court cannot consider the private defendants to be federal actors for purposes of the Bivens claim or, alternatively, that the Plaintiffs have not stated a constitutional violation sufficient to support a Bivens claim; and (d) A motion to dismiss for lack of subject matter jurisdiction brought by the United States arguing that it cannot be held liable under the Federal Tort Claims Act due to the independent contractor and discretionary functions exceptions, see 28 U.S.C. §§ 2671, 2680(a). Because these various motions are factually related and legally interdependent, the Court has reserved judgment on them until such time that they could all be addressed simultaneously. That time has arrived. II. Factual Background. A complete factual description of the case is provided in Heinrich I and Heinrich II. The following background will focus on those facts relevant to the instant motions. A.The Formation of Associated Universities. Associated Universities was incorporated as a private, non-stock, educational and research institution under the laws of the state of New York on July 18, 1946. See Dkt. # 81, Ex. 1. The corporation was formed “[t]o acquire, plan, construct and operate laboratories and other facilities, either under contract with the Government of the United States or its agencies or otherwise, for research, development and education in the physical and biological sciences, including all aspects of the field of nuclear energy and its engineering and other applications, and to educate and train technical, research and student personnel. ...” Id. at 1. Additionally, Associated Universities was intended to act as “an agency through which universities and other research organizations will be enabled to cooperate with one another, with the Government of the United States and with other organizations toward the support and use of laboratories and other research facilities and toward the development of scientific knowledge.... ” Id. Associated Universities was founded by Harvard, Yale, Columbia, Cornell, Princeton, MIT, Rochester University, Johns Hopkins, and the University of Pennsylvania. See Dkt. # 21 at ¶ 26. It is governed by a self-perpetuating Board of Trustees that consists of representatives from each of the member universities. See Dkt. #81, Ex. 1; id., Ex. 4 at v. B. The Establishment of Brookhaven National Laboratory. On December 23, 1947, Associated Universities entered into a contract with the United States to administer Brookhaven National Laboratory (“Brookhaven”) in Upton, New York. See id. at Ex. 3. Associated Universities was to “organize, operate and maintain Brookhaven ... for the conduct of studies, experimental investigations and tests,” including “[t]he conduct of research and development in the atomic and related fields described in Section 3 of the Atomic Energy Act....” See id. at 2, 4. Section 3 of the Atomic Energy Act directed the Atomic Energy Commission (the “Commission”) “to exercise its powers in such manner as to insure the continued conduct of research and development activities ... by private or public institutions or persons and to assist in the acquisition of an ever-expanding fund of theoretical and practical knowledge ...” including the “utilization of fissionable and radioactive materials for medical, biological, health, or military purposes.... ” Atomic Energy Act of 1946, Pub.L. 79-585, § 3, 60 Stat. 755 (1946). Section 3 also instructed the Commission that any research conducted “shall contain such provisions to protect health, to minimize danger from explosion and other hazards to life or property, and to require the reporting and to permit the inspection of work performed thereunder, as the Commission may determine ....” Id. C. The Relationship Between Associated Universities and the Commission. Brookhaven itself is not a legally cognizable entity. The land, fixtures, equipment, and other property constituting the physical manifestation of Brookhaven were directly owned by the United States. See Dkt. # 81, Ex. 3 at 3, 11. The operation and management of Brookhaven, as well as all of the research and experimentation performed there, was provided by Associated Universities on an independent contractor basis. See id. at 2. This organizational structure was necessitated by the fact that, under the Atomic Energy Act of 1946, only the Commission could own a nuclear reactor that was capable of “producing within a reasonable period of time a sufficient quantity of fissionable material to produce an atomic bomb or other atomic weapon” and only the Commission could own fissionable materials. Atomic Energy Act of 1946, §§ 4, 5. The Director of Brookhaven was an employee of Associated Universities and reported to the Board of Trustees. See Dkt. # 81, Ex. 4 at Fig. 3. In return for providing its services, Associated Universities received a management fee plus the “costs and expenses” of work performed under the contract with the Commission. See id., Ex. 3 at 5. All rights to intellectual property arising out of the agreement, however, were to be disposed of completely at the discretion of the Commission. See id. at 21. Likewise, “[a]ll drawings, designs, specifications, data, and other memoranda of record value” prepared in connection with Brookhaven operations were the sole property of the United States. Id. at 22. All revenues generated by Brookhaven operations were credited against the cost of work, with the excess remitted to the Commission. See id. at 8. The Commission determined which research results would be published for public dissemination and which would remain classified. See id. at 4,19-20. Associated Universities was obligated to operate Brookhaven exclusively for the benefit of the Commission: “The Contractor [Associated Universities] shall perform such work and services as are in accordance with the general plans, programs and budgets, from time to time agreed upon by the Commission and the Contractor.” Id. at 3; see also Dkt. # 85, Ex. 6 at 1 (then-Brookhaven Director Philip Morse noting that “this Laboratory was created by the Atomic Energy Commission to provide unique facilities for nuclear research ... ”). Associated Universities needed the permission of the government to use any of the Brookhaven facilities for non-Commission work. See Dkt. # 81, Ex. 36. Funding for research was requested on a case by case basis from the Commission. See id. at Ex. 12. The Commission exercised controls over the operation of Brookhaven by requiring a review of all expenditures before Associated Universities would receive funds, see id. at Ex. 3 at 9, the right to inspect all documents generated by Associated Universities in performance of the work, see id. at 12, the right to inspect the operations in whatever manner and at such times as the Commission deems appropriate, see id. at 20, the right to require reports from Associated Universities, see id., and the right to terminate the contract for any reason, see id. at 25. Moreover, the Commission exercised substantial control over such Brookhaven labor matters as job descriptions, rates of pay, hours, hiring and termination. See id. at 18; id., App. A at 6-7. Such oversight was considered a matter of legal necessity. As the Ninth SemiAnnual Report of the Commission stated in 1951, “the proper discharge of the [Commission’s] responsibilities under the law requires that the [Commission] shall have full access to information concerning the contractor’s performance of the contract work and the power to exercise such control and supervision under the contract as the [Commission] may find necessary.” Dkt. # 85, Ex. 9 at 62. The Task Force on Basic AEC-Contractor Relationships issued a report in 1953 (“the Task Force Report”) that summarized the Commission’s responsibilities: [T]he Commission as the agency which formulates the atomic energy program and obtains funds from the Congress cannot by delegation to its contractors divest itself of responsibility for the proper expenditure of these funds. The Commission is accountable to the Congress and to the President for the progress of the program and the expenditure of public funds, and has the duty of informing itself concerning the activities of its contractors in order that it may report to the President and the Congress, satisfy itself as to the progress and economy of the work, and make decisions and plans for the future of the program. % sjí í¡« if: The contractor recognizes that the proper discharge of the [Commission’s] responsibilities under the law requires that the [Commission] shall have full access to information concerning the contractor’s performance of the contract work and the power to exercise such control and supervision under the contract as the [Commission] may find necessary. Id. at Ex. 7 at 4-5. The Task Force Report went on to summarize the basic mechanisms by which the Commission could exercise control over Brookhaven activities: The primary instruments for determining and controlling the contractor’s work are the program assumptions which are the basis for planning, the budget submissions, the approved financial plans, and directives authorizing specific projects. Continuing control to assure that the contractor adheres to established programs is exercised through such devices as monthly cost reports, regular progress reports, conferences with the contractor, review and observation of the work by [Commission] engineers and other specialists, inspection of finished products, and audits. Id. at 10. This conception of the Commission and its contractors as intertwined was reinforced by a speech delivered by Charles Vanden Bulck of the Commission on March 3, 1958 to the Atomic Industrial Forum, in which he described the relationship as making the “contractor and the [Commission] partners in the general sense of the word.” Id. at Ex. 8 at 19. As part of this “partnership,” the Commission agreed to indemnify Associated Universities for all liability awards issued against it, including personal injury awards, barring bad faith or willful misconduct on the part of Associated Universities. See Dkt. # 81, Ex. 3 at 15. D. The Conduct of Boron Neutron Capture Therapy Experiments. Dr. Farr was hired to serve as a “Senior Physician” and Chairman of the Medical Department at Brookhaven in 1949. See id. at Ex. 10. Although technically Dr. Farr must have been an employee of Associated Universities, his employment records show his employer as “Brookhaven National Laboratory.” See id. In a letter dated November 11, 1948, Dr. Farr made clear, as mention of his employment at Brookhaven, (1) that medical studies must be allowed to be carried out on “patients with disease” and that “[s]uch studies, practically, can be carried out only upon patients relieved from paying a significant part of the costs ...” and (2) that “the physician be enabled to bring to bear on the problem all the technics [sic] which may be available and not be limited to any one, particularly one of whose value we as yet have no valid information.” Dkt. # 85, Ex. 1. Dr. Farr concluded by stating that his final decision regarding the medical program at Brookhaven could not be given until the Commission approved these two conditions. See id. These statements by Dr. Farr contrast sharply with a consent form used by Associated Universities in the boron neutron capture therapy experiments, which provided, in part: To the patients admitted free of charge for study of imoved methods of treatment, the hospital gives at all times the most complete care possible. No treatments are employed except those which are designed for benefit of the patient and of other patients who suffer from similar conditions. No treatment is used in which the probable benefit is not believed to outweigh the possibility of untoward effects. Dkt. # 81, Exs. 21, 23. The initial description of the boron neutron capture therapy program advised the Commission that the experiments would be conducted on patients who only had a few months to live. See Dkt. # 85, Ex. 2. Funding proposals by Associated Universities to the Commission in 1958 and 1960, several years after the trials had begun, indicate that Associated Universities sought basic research into the question of whether “untoward effects” existed. See Dkt. #81, Ex. 18 (seeking funding for research whether “the harmlessness of the procedure in relation to all other central nervous system structures” could be shown); id. at Ex. 20 (seeking funding to determine whether it can be shown “(1) that the procedure indeed accomplishes its purpose; and (2) that the procedure causes no serious additional damage.”). The parties dispute the level of detail that the Commission used in reviewing the experiment proposals. The Revised Guide for Submission of Research Proposals issued by the Commission indicates that proposed research must be supported by “literature relevant to the proposal, the significance, and motivation [for the proposal] ... [the] objectives, its relation to present knowledge and to comparable work in progress elsewhere.... ” Id. at Ex. 12. E. The Relationship of the Defendants. The initial description of the boron neutron capture therapy program submitted to the Commission disclosed that inspiration for the proposal had come from “Dr. William Sweet and his group who are our collaborators.... ” Dkt. # 85, Ex. 2. As late as 1958, Dr. Sweet was still listed in Brookhaven materials as one of Associated Universities’ “Research Collaborators.” Dkt. # 81, Ex. 7 at XIII. MIT was one of only nine founding institutions of Associated Universities and held two positions on the Board of Trustees. See id. at Ex. 1. All activities of Brookha-ven, including its medical research program, must be reviewed and approved by the Board of Trustees. See id. at Ex. 5 at iv & Fig. 1. Associated Universities has described itself as the “agent” of all regional educational institutions, including MIT. See Dkt. #85, Ex. 6 at ENZ026 01871-72 (“This is a non-profit educational organization, chartered under the education laws of New York State, and acting as the agent of all educational and research institutions in this region.”). Dr. Gordon Brownell, who was on the faculty of MIT, was actively involved with the entire experiment including the early development of boron neutron capture therapy, the administration of injections to brain cancer patients, and the design, development, and operation of one of the reactors used in the experiment trials. See Dkt. # 53, Exs. 2, 3, 10. MIT was the owner and operator of the reactor for twenty-one of the trials and actively participated in the design of that reactor so that it could be used for such trials. See id. at Exs. 4,15,17. In its February 9, 1953 report to the Commission, Associated Universities acknowledged a relationship with Mass General: “Explorations are being carried out looking toward adding one or two university hospitals in addition to the Massachusetts General Hospital to the cooperating group.” Dkt. # 85, Ex. 11. The same report notes that “[collaboration by the Brookhaven medical staff on segments of problems with investigators in other institutions utilizing the special facilities at Brookhaven are desirable” and lists “Dr. W.H. Sweet et al” and work in the form of “preradiation studies on patients, and their postradiation evaluation, as well as extensions of toxicological observations on boron administration” as part of'the collaboration efforts. Id. The Brookhaven Annual Report dated July 1, 1954 reinforces this emphasis on group effort: “It is only through cooperation with other medical institutions that a problem as enormous as this can be completely attacked through the use of the special techniques and capabilities of those institutions in conjunction with Brookhaven’s special facilities.” Dkt. # 81, Ex. 4 at XV. III. Standards A. Motion to Dismiss. Taking all facts and inferences drawn therefrom in the Plaintiffs’ favor, this Court should only grant a motion to dismiss “if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.” Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.1998). Despite this low threshold, the pleading requirement is “not entirely a toothless tiger.” Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996). In order to survive a motion to dismiss, the Plaintiffs must set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery....” Cooperman v. Individual, Inc., 171 F.3d 43 (1st Cir.1999). As such, the Court need not accept “bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like.... ” Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). B. Motion to Dismiss for Lack of Subject Matter Jurisdiction. In passing on a motion to dismiss for lack of subject matter jurisdiction, a district court “must construe the complaint liberally, treating all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs.” Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). A district court, however, has “very broad discretion in determining the manner in which in which it will consider the issue of jurisdiction.” Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). Consequently, in deciding a motion to dismiss, a district court may (1) consider evidence submitted by the parties, such as depositions and exhibits; (2) entertain arguments not raised by the parties’ memoranda; and (3) resolve factual disputes, if necessary. See Jones-Booker v. United States, 16 F.Supp.2d 52, 58 (D.Mass.1998) (Alexander, C.M.J.). C. Motion for Judgment on the Pleadings. Federal Rule of Civil Procedure 12(c) allows a party, “[a]fter the pleadings are closed but within such time as not to delay the trial, [to] move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “In reviewing such a motion, the district court must accept all of the nonmoving party’s well-pleaded factual averments as true and draw all reasonable inferences in her favor.” Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st Cir.1998) (citations omitted). “Judgment on the pleadings under Rule 12(c) may not be entered unless it appears beyond a doubt that the nonmoving party can prove no set of facts in support of her claim which would entitle her to relief.” Id. D. Motion for Summary Judgment. Summary judgment is appropriate if, after reviewing the facts in the light most favorable to the nonmoving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and thát the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). IV. The Price-Anderson Act. A. Applicability of the Price-Anderson Act. MIT seeks partial summary judgment in its favor regarding the applicability of the Price-Anderson Act (the “Act”) to the Plaintiffs’ claims. In Heinrich II, this Court determined that New York law applied to the Plaintiffs’ state law claims, including New York statutes of limitations. See Heinrich, 49 F.Supp.2d at 36-37. Because the Act establishes a choice of law rule that requires application of the law of the state in which a nuclear incident occurs, the Court’s choice of law analysis may have been insufficiently refined. Specifically, if MIT’s contention that the Act applies to the Plaintiffs’ state law claims is correct, then two separate statute of limitations analyses will be required: one, under New York law, to govern the conduct that occurred in New York and one, under Massachusetts law, to govern the conduct that occurred in Massachusetts. The Price-Anderson Act was adopted in 1957 to foster the commercial development of nuclear energy by establishing a public-private insurance pool to cover potential damages resulting from peace-time nuclear accidents. See Duke Power Co. v. Carolina Env. Study Group, Inc., 438 U.S. 59, 63-65, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). “The Act required private nuclear power operators to obtain the amount of liability insurance available from private sources ... and provided a supplementary federal indemnity guarantee of $500 million.” Smith v. General Elec. Co., 938 F.Supp. 70, 73 (D.Mass.1996) (Stearns, J.). The Act limited liability for each individual nuclear incident at $560 million, see 42 U.S.C. § 2210(e)(1)(C)(ii), and mandated that “any legal liability ... [of any] person who may be liable for public liability” beyond the required private insurance amount be channeled to the federal insurance pool, id. at §§ 2014(t), (w), 2210(c), (d). In Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 258, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), the Supreme Court determined that a punitive damages award under Oklahoma state law for injuries resulting from nuclear radiation contamination was not preempted by the Act. Congress responded by amending the Act in 1988 to declare a “public liability action” to be a federal cause of action falling under the original and removal jurisdiction of the federal district court, 42 U.S.C. § 2210(n)(2), and to disallow punitive damages “against a person on behalf of whom the United States is obligated to make payments under an agreement of indemnification ...,” id. at § 2210(s). Specifically, the amended Act provides a federal statutory scheme for all “public liability actions” that allege bodily injury resulting from radioactive or other hazardous properties of federally regulated nuclear materials. Id. at § 2014(hh). Such actions include “any legal liability arising out of or resulting from a nuclear incident ...,” id. at § 2014(w), where “nuclear incident” is defined broadly to encompass “any occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death ...,”id. at § 2014(q). Following these amendments, three Courts of Appeals have held that the Act preempts state law claims that arise out of a “nuclear incident,” as defined in the Act. See Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir.1997) (holding that a plaintiff “can sue under the Price-Anderson Act, as amended, or not at all”); O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099-1100 (7th Cir.1994) (noting that “a state cause of action is not merely transferred to federal court; instead, a new federal cause of action supplants the prior state cause of action.”); In re TMI Litigation II, 940 F.2d 832, 854 (3d Cir.1991) (noting that “Congress clearly intended to supplant all possible state causes of action when the factual prerequisite of the statute are met.”). Although the 1988 amendments to -the Act clearly created a “federal cause of action,” Day v. NLO, Inc., 3 F.3d 153, 154 n. 3 (6th Cir.1993), it is a federal cause of action of a peculiar nature. The Act incorporates state law as the substantive rule of decision to govern the federal cause of action, so long as the state law is not inconsistent with the purposes of the Act. See 42 U.S.C. § 2014(hh). MIT argues that this section requires the Court to analyze the Plaintiffs’ state law claims according to the law of the state in which the respective incidents occurred. Thus, New York law would apply to the claims of those plaintiffs whose decedents were treated in New York, while Massachusetts law would apply to those plaintiffs whose decedents were treated in Massachusetts. Because state choice of law principles are also incorporated into the federal cause of action, see In re Hanford Nuclear Reservation Litig., 780 F.Supp. 1551, 1571 (E.D.Wash.1991) (noting that section 2014(hh) “mean[s] the whole law of the state, including any choice of law provisions”), Heinrich II remains almost entirely intact even if the Court determines the Act to apply. The only issue for reconsideration is the question of which state’s law governs the statute of limitations defense. In Heinrich II, this issue was treated as a question of federal law hinging on the procedural intricacies of transfer. If the Act applies, however, the question would need to be treated as matter of state law determined by reference to the law of the state in which the different treatments occurred. The Plaintiffs contest the rather clear language of the statute by arguing that “nuclear incident” should only be interpreted to mean an unintended escape or release of nuclear energy. Judge Beck-with adopted this interpretation in In re Cincinnati Radiation Litigation, 874 F.Supp. 796, 830-82 (S.D.Ohio 1995), reasoning that the “public liability” amendments to the Act were intended to address only “unintended” escapes of nuclear radiation. Several reported cases, however, appear to undermine this interpretation of the statute. See Day v. NLO, Inc., 851 F.Supp. 869 (S.D.Ohio 1994) (Act applies to claims of occupational exposure to radiation not alleged to have been caused by accidental release); Sawyer v. Commonwealth Edison Co., 847 F.Supp. 96 (N.D.Ill.1994) (Act applies to claim for injuries resulting from alleged ongoing occupational exposure); Coley v. Commonwealth Edison Co., 768 F.Supp. 625 (N.D.Ill.1991) (same); Building and Constr. Trades Dep’t v. Rockwell Int’l, 756 F.Supp. 492 (D.Colo.1991) (Act applies to intentional and negligent tort claims related to occupational exposure). As noted in Gilberg v. Stepan Co., 24 F.Supp.2d 325, 340 (D.N.J.1998), the Act “neither requires that a nuclear source be used as intended nor requires that the escape or release of nuclear material be unintended.” Instead, “[w]hat Price-Anderson does require is that the escape or release occur in connection with indemnified activity.... ” Id. Magistrate Judge Hedges’ exhaustive analysis of the statute and applicable case law shows that the necessary predicate to operation of the jurisdictional scheme is the existence of an indemnification agreement between the government and the defendant with respect to the complained of activity: “In the absence of an indemnification agreement, entered into under 42 U.S.C. § 2210 and covering the activities which gave rise to the liability alleged, there can be no ‘occurrence,’ that is, no event at the site of ‘licensed activity,’ that would constitute a ‘nuclear incident.’ ” Id. The determinative issue, therefore, is whether the indemnification agreements between the Commission and the various private defendants in this action covered the activities challenged by the Plaintiffs. If they did, the claims of plaintiffs Heinrich and Sienkew-itz would be subject to Massachusetts law because their decedents were treated in Massachusetts. See 42 U.S.C. § 2014(hh). Although the issue may eventually be revisited as between the private defendants and the United States, the Court must make a determination now regarding the applicability of the Act in order that the litigation proceed. It must be emphasized that this ruling is based only on a preliminary record and is intended in no way to bind any subsequent tribunal faced with the task of determining whether the United States in fact must indemnify a judgment rendered against the private defendants. Instead, the Court is simply treating the question as one of threshold importance: does an indemnification agreement exist between the United States and the various private defendants that presumptively applies to the challenged conduct in this litigation? If so, the Act will apply in this case, regardless of whether or not the indemnification agreement is later interpreted to reach the conduct of the private defendants. With that proviso in mind, the Court rules that the challenged conduct in the instant litigation (with the exception of the alleged boron injections, see supra n. 2) is subject to an indemnification agreement with the United States. There are a variety of reasons for so holding. First, the available evidence suggests that a valid and binding indemnification agreement does exist that may eventually be interpreted to cover the challenged conduct. See Dkt. # 119 at ¶ 3 & Ex. B; Dkt. # 81, Ex. 3 at 15. Second, holding that an indemnification obligation is in place and that the Act therefore applies does no harm to the Plaintiffs. Indeed, as will be seen below, it significantly aids them by preserving some of the state law claims that would otherwise be time-barred, including a potential claim for punitive damages. Third, it would be both impractical and inequitable to require the United States to litigate the issue of indemnification at this stage in the proceedings, yet some ruling on the issue of the applicability of the Act is required before the litigation can continue. All of these factors have been made clear to the parties. Both MIT and Mass General desire Price-Anderson applicability, despite knowledge that the Act will likely preserve state law claims that would otherwise be time-barred. The reason for this seemingly self-defeating litigation posture is that arguing against applicability of the Act now might prejudice MIT and Mass General in later attempts to argue that the United States must indemnify them. This the parties are understandably unwilling to do. Thus, MIT and Mass General have maintained that the United States is obligated to indemnify them for any liability which occurs out of the instant litigation with respect to the conduct of boron neutron capture therapy treatments. Because this theory of the case does not prejudice and indeed actually benefits the Plaintiffs, the Court holds that, for purposes of the present motions, an indemnity agreement between the United States and the private defendants is in place sufficient to trigger application of the Act. Thus, MIT’s motion for partial summary judgment on the applicability of the Price-Anderson Act is GRANTED. The Court rules that the Act governs the Plaintiffs’ state law claims insofar as they are premised on boron neutron capture therapy treatments, as opposed to boron injections. The Order issued in Heinrich II is thus hereby AMENDED to clarify the role of the Price-Anderson Act as a federal law overlay to these state law claims. Because the Act incorporates state law rules of decision, including choice of law rules, the Heinrich II Order remains in full force and effect with the exception of the Court’s determination that New York statutes of limitations apply to all state law claims. Instead, the Massachusetts Plaintiffs’ state law claims based on radiation treatment conduct that occurred in Massachusetts should be analyzed separately under the statutes of limitations of the state in which the challenged conduct occurred, i.e., Massachusetts. B. Associated Universities’ Request for Transfer Associated Universities contends that if the Court determines that the Act applies, the case should be bifurcated and retransfered in part to the Eastern District of New York. Specifically, Associated Universities argues that the Act requires transfer to the federal district court for the district in which a “nuclear incident” occurred. See 42 U.S.C. § 2210(n)(2) (“With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place ... shall have original jurisdiction [and] upon motion of the defendant ... any such action ... shall be removed or transferred to the United States district court having venue under this subsection”) (emphasis added). The cited statutory provision does not contemplate a case such as the one at bar, in which a common factual nucleus involving interrelated defendants encompasses conduct in more than one district. This Court will not interpret the Act to require that this case be separated into two different actions because such an increased expenditure of judicial and litigant resources would be precisely contrary to the intent of the statute. The Third Circuit has well analyzed this legislative intent: Prior to the Amendments Act [of 1988], the grant of federal jurisdiction and right of removal were available only in actions resulting from an extraordinary nuclear occurrence. The decision to expand the jurisdictional grant was based upon the fact that “[t]he experience with claims following the TMI [Three Mile Island] accident demonstrate^] the advantages of the ability to consolidate claims after the nuclear incident. Attorneys representing both plaintiffs and defendants in the TMI litigation testified ... that the ability to consolidate claims in federal court would greatly benefit the process for determining compensation for claimants.... The availability of the provisions for consolidation of claims in the event of any nuclear incident ... would avoid the inefficiencies resulting from duplicative determinations of similar issues in multiple jurisdictions that may occur in the absence of consolidation.” S.Rep. No. 218, 100th Cong., 2d Sess. 13, reprinted in 1988 U.S.Code Cong. & Admin. News 1476,1488. In re TMI II, 940 F.2d at 853 n. 18. Associated Universities’ requested transfer, though arguably required by the language of the statute, would be directly contrary to the very purpose of the 1988 legislative amendments. Thus, this Court will retain jurisdiction over the entire action, despite the applicability of the Act. V. Statute of Limitations Analysis for State Law Claims. Following Heinrich II, only the following five state law claims remain: Fraud (Count II); Failure to Obtain Informed Consent (Count VII); Wrongful Death (Count VIII); Negligence (Count X); and Negligent Misrepresentation (Count XI). Associated Universities and Mass General seek a ruling that all of these state law claims are time-barred. The following analysis is divided into sections on New York and Massachusetts law. New York law governs all Plaintiffs’ claims except the claims premised on boron neutron capture therapy treatments conducted in Massachusetts, which are governed by Massachusetts law. A. New York Statute of Limitations Analysis for Non-Fraud Claims. The longest possible limitations period applicable to the Plaintiffs’ non-fraud claims is six years. See Asbeka Indus. v. Travelers Indem. Co., 831 F.Supp. 74, 80 (E.D.N.Y.1993) (noting that some New York cases apply a six year limitations period to negligent misrepresentation claims). Because all of the challenged conduct occurred over thirty-five years ago, the Plaintiffs need the benefit of some tolling device in order to overcome the statute of limitations defense. New York courts have expressly declined to adopt a discovery rule for non-fraud state law claims. See Rizk v. Cohen, 73 N.Y.2d 98, 538 N.Y.S.2d 229, 232 n. 3, 535 N.E.2d 282 (1989) (noting that New York “has consistently refused to judicially adopt the so-called ‘discovery rule’ ”). Instead, under New York law for non-fraud claims, a plaintiff must rely on the doctrine of fraudulent concealment: a “defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.” Simcuski v. Saeli, 44 N.Y.2d 442, 448-49, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1978). However, “[t]he doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances.” Gross v. New York City Health & Hosps. Corp., 122 A.D.2d 793, 505 N.Y.S.2d 678, 679 (N.Y.A.D.1986). The Plaintiffs allege that the defendants fraudulently concealed the “true nature” of the experiments from them and their decedents and, consequently, the Plaintiffs did not discover the facts which form the basis of their claims until 1995. Dkt. #21 at ¶ 78. Associated Universities and Mass General argue that the Plaintiffs cannot satisfy the requirements of fraudulent concealment because New York requires that the defendant’s allegedly deceptive acts be distinct from- — and occur subsequent to— the allegedly wrongful acts that form the basis of the claim. See Dkt. # 98 at 1-2. Several reported cases back them up. See Rizk, 538 N.Y.S.2d at 233, 535 N.E.2d 282 (equitable estoppel inapplicable where “plaintiffs allegations do not establish that [defendant], acting with knowledge of prior malpractice, made ¡subsequent [sic] misrepresentations in an attempt to conceal his earlier negligence”); Chesrow v. Galiani, 234 A.D.2d 9, 650 N.Y.S.2d 158, 160 (N.Y.A.D.1996) (“[T]here can be no fraudulent misrepresentation where, as in the matter at bar, the plaintiff relies on the same act which forms the basis of his negligence claim ... as the foundation of an asserted equitable estoppel.”); Vinciguerra v. Jameson, 208 A.D.2d 1136, 617 N.Y.S.2d 942, 944 (N.Y.App.Div.1994) (“To succeed on her fraudulent concealment claim, plaintiff must establish that defendants had knowledge of their prior malpractice and made subsequent misrepresentations in an attempt to conceal their earlier negligence”); see also Smith v. Smith, 830 F.2d 11, 13 (2d Cir.1987) (applying New York law and holding that equitable estoppel can be invoked only “when some conduct by defendant after his initial wrongdoing has prevented the plaintiff from discovering or suing upon the initial wrong.”). Although the Plaintiffs offer several arguments in opposition, the above cases are fatal to them. First, the Plaintiffs attempt to argue that the alleged wrong was the proposal of the experiments rather than the conduct of them, such that the representations made to Plaintiffs’ decedents were “subsequent to” the alleged wrong. Dkt. # 108 at 11 n. 7. This argument misconceives the nature of the causes of action — if the alleged wrong was the mere proposal of the experiments, no cause of action would be stated because no injury would have been alleged. Rather, it is only the actual conduct of the experiments that could possibly give rise to a cause of action. Second, the Plaintiffs argue that the fact that the defendants made alleged misrepresentations prior to the conduct of the experiments simply reflects that this is an unusual case necessitating a departure from established principles. See id. at 11. Given the clear language from controlling New York case law, however, the Court declines the Plaintiffs’ invitation to fashion new state law rules of decision. Essentially, the Plaintiffs argue that the “defendants’ conduct in fraudulently assuring the plaintiffs that no procedure would be used on them unless it had therapeutic benefit and unless that benefit exceeded the untoward effects, lulled them into a false sense of security which dissuaded them from questioning whether a tort was committed and deprived them of the opportunity to refuse the treatment.” Id. at 12-13. It is this conduct, the Plaintiffs believe, that “equitably estops defendants from asserting the statute of limitations defense....” Id. at 13. This conduct, however, is indistinguishable from the conduct that forms the basis of the Plaintiffs’ causes of action. Under New York law, equitable estoppel must be premised on some facts other than those which form the basis of the time-barred causes of actions. See Smith, 830 F.2d at 13; Chesrow, 650 N.Y.S.2d at 160. In such a situation, dismissal of the non-fraud state law claims is appropriate: [N]o triable issue is presented with respect to whether the defendants fraudulently concealed facts which induced the plaintiff and his decedent to refrain from timely commencement of the action giving rise to an estoppel.... Neither the plaintiff nor his decedent had contact with the defendants after [the alleged tortious conduct] and before the Statute of Limitations ran ... and there was thus no occasion for the defendants to make any representations to them.... Phelps v. Greco, 177 A.D.2d 559, 576 N.Y.S.2d 158, 160 (N.Y.A.D.1991). Thus, the Court GRANTS the motions of Mass General and Associated Universities to dismiss the non-fraud state law claims, with the exception of radiation therapy claims brought by Massachusetts Plaintiffs premised on conduct that occurred in Massachusetts, as untimely filed under the respectively applicable statutes of limitations. B. New York Statute of Limitations Analysis for Fraud Claims. Unlike the non-fraud causes of actions, a claim of fraud in New York is subject to a discovery rule. A claim must be brought within six years of the alleged fraud or within two years of the time the plaintiff discovered or reasonably should have discovered the fraud. See N.Y.Civ.Prac.L. & R. 213(8), 203(g). Because this Court has already held that the Plaintiffs are not time-barred under a similar discovery rule analysis for certain federal law claims, see Heinrich I, 44 F.Supp.2d at 418 (refusing to dismiss claims as untimely under the Federal Tort Claims Act), the Plaintiffs appear to be on solid ground with respect to the New York fraud claims. As Associated Universities and Mass General argue, however, New York courts require that allegations of fraud be sufficiently distinct from a plaintiffs other causes of action in order to invoke the benefit of the longer statute of limitations period. See Cottonaro v. Southtowns Indus., Inc., 213 AD.2d 993, 625 N.Y.S.2d 773, 775 (N.Y.A.D.1995) (noting that “[w]here allegations of fraud are only incidental to another cause of action, the fraud Statute of Limitations cannot be invoked”); New York Seven-Up Bottling Co. v. Dow Chem. Co., 96 A.D.2d 1051, 466 N.Y.S.2d 478, 480 (N.Y.A.D.1983) (“The six-year fraud Statute of Limitations ... is only applicable when there would be no injury but for the fraud.... Where the allegations of fraud are only incidental to another cause of action, the fraud Statute of Limitations cannot be invoked.”). This has long been the rule in New York. See Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902, 904 (1937); Tulloch v. Haselo, 218 A.D. 313, 218 N.Y.S. 139, 142 (N.Y.A.D.1926); Glover v. National Bank of Commerce of New York, 156 A.D. 247, 141 N.Y.S. 409, 415-17 (N.Y.A.D.1913). As noted above with respect to the rule that fraudulent concealment must be distinct from an underlying causé of action sought to be rescued from the statute of limitations, the Plaintiffs have not alleged any conduct that would form the basis for a fraud claim separate from the conduct that forms all of their state law claims. The Plaintiffs argue that this analysis amounts to “rearguing for dismissal of the fraud claim, not making a statute of limitations argument.” Dkt. # 108 at 14 n. 8. They believe that Heinrich II forecloses such reargument. See id. at 13. The Plaintiffs’ argument, however, misconstrues Heinrich II and the law of the state of New York. First, in Heinrich II, this Court rejected the defendants’ claim that the fraud count should be dismissed for failure to comply with Rule 9(b); the separate argument that the fraud claim is untimely filed under state law was not addressed. Second, New York case law on the applicability of the fraud statute of limitations expressly corresponds with that state’s law on the viability of a fraud count separate from related causes of action. The Plaintiffs essentially concede this point when they argue that “[i]n the cases relied upon by defendants, the statute of limitations on all claims, except the fraud claim, had run and thus the case turned on whether there was an independent fraud claim at all.... ” Id. Because the other New York claims have been dismissed, this precise issue is before the Court. Therefore, under applicable New York law, the count for fraud must be dismissed: “It is ... a well-established principle of law that where an allegation of fraud is not essential to the cause of action pleaded except as an answer to an anticipated defense of statute of limitations, courts ‘look for the reality, and the essence of the action and not its mere name.’ ” Powers Mercantile Corp. v. Feinberg, 109 A.D.2d 117, 490 N.Y.S.2d 190, 192 (N.Y.A.D.1985). In other words, “[w]here the alleged fraud is merely ‘the means of accomplishing the [actionable act] and add[s] nothing to the causes of action ...,’ the statute of limitations applicable to fraud claims will not control.” Id. at 193. For this reason, the Court GRANTS the motions of Mass General and Associated Universities to dismiss the fraud count except insofar as the count is premised on radiation treatments conducted in Massachusetts. C. Massachusetts Statute of Limitations Analysis. The state law claims premised on the conduct of radiation treatments in Massachusetts are subject to Massachusetts statutes of limitations. Unlike New York, Massachusetts imposes a fiduciary duty on doctors to disclose known possible causes of action to patients. See Bourassa v. LaFortune, 711 F.Supp. 43, 47 (D.Mass.1989) (Harrington, J.). Consequently, in order to gain the benefit of fraudulent concealment tolling rules, the Massachusetts Plaintiffs challenging conduct in Massachusetts need not allege a separate, subsequent act of fraud as in New York: When a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under § G.L. c. 260, 12, for the period prior to the plaintiffs discovery of the cause of action. Where a fiduciary relationship exists, the failure adequately to disclose the facts that would give rise to knowledge of a cause of action constitutes fraudulent conduct and is equivalent to fraudulent concealment for purposes of applying § 12. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 519, 677 N.E.2d 159 (1997). The Massachusetts Plaintiffs need only show that the private defendants failed to disclose the facts which give rise to a possible cause of action, and that the Massachusetts Plaintiffs did not otherwise gain knowledge of those facts at an earlier time: An actual knowledge standard applies to a plaintiff who argues that a breach of fiduciary duty of disclosure constitutes fraudulent concealment under § G.L. c. 260, 12. Such a plaintiff need only show that the facts on which the cause of action is based were not disclosed to him by the fiduciary. The plaintiff is not required to have made an independent investigation. Id. at 519-20, 677 N.E.2d 159 (citations omitted). Thus, because the Massachusetts Plaintiffs allege that they did not gain actual knowledge of the “true nature” of the boron neutron capture therapy experiments until 1995, see Dkt. # 21 at ¶¶ 4, 78, 95, their claims are not time-barred under Massachusetts law. An independent ground for so holding is that both the Massachusetts Wrongful Death and Survival statutes expressly contain a discovery rule. See Mass.Gen.L. ch. 229, § 2 (Wrongful Death); Mass.Gen.L. ch. 260, § 10 (Survival). The Court’s reasoning in the April 20 Order, see Heinrich, 44 F.Supp.2d at 418 (denying the United States’ motion to dismiss the Plaintiffs’ claims as time-barred under the Federal Tort Claims Act), applies with equal force under Massachusetts discovery rule principles. Mass General attempts to counter this line of reasoning by arguing that the Massachusetts statutes did not contain a tolling provision during the túne when the experiments were conducted. See Pobieglo v. Monsanto Co., 402 Mass. 112, 116, 521 N.E.2d 728 (1988) (holding that “[a]pplication of a rule which would delay accrual until discovery would be in clear contravention of the legislative directive that the period of limitations runs from the date of death.”). Rather, it was only following Pobieglo that the Massachusetts legislature amended the Wrongful Death and Survival statutes to provide for a discovery rule. See Fowles v. Lingos, 30 Mass.App.Ct. 435, 437 n. 4, 569 N.E.2d 416 (1991). Mass General argues that the discovery rule amendments should not be applied retroactively. The cases cited in support of this argument, however, are inapposite. The issue was not raised in Fowles and, thus, any supportive language that the private defendants divine from that case is mere dictum. See id. (“The plaintiff does not argue that the amendment applies to this case.”). In Baldassari v. Public Finance Trust, 369 Mass. 33, 337 N.E.2d 701 (1975), the court was addressing two statutory amendments that had express effective dates, unlike the discovery rule amendments. In the absence of an express effective date provision, Massachusetts courts give statutes of limitations amendments full retroactive effect: “The general rule is that if a statute of limitations does not contain language clearly limiting its application to causes of action arising in the future, then it controls future procedure in reference to previously existing causes of action.” Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 453-54, 440 N.E.2d 1164 (1982); accord Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 191 n. 9 (1st Cir.1982) (“Massachusetts follows the general rule that, absent clear legislative intent, statutes affecting substantive rights are prospective, whereas statutes affecting procedure or remedies may be retroactive.”). This general rule of retroactivity applies to tolling rules, as well as statutory time periods. See Cioffi v. Guenther, 374 Mass. 1, 2-3, 370 N.E.2d 1003 (1977) (upholding retroactive application of statute which eliminated tolling provision for underage plaintiffs in medical malpractice cases). Massachusetts courts attach only one proviso to retroactive application of statutes of limitations: “If a statute of limitations restricts the time for enforcing such accrued rights, it is constitutional [only] if there is a reasonable time after the enactment of the statute for enforcing these rights.” Anderson, 387 Mass. at 454-55, 440 N.E.2d 1164 (amendment shortening plaintiffs’ filing window to six days held unreasonable as applied to them). In the instant case, the amendments to the Wrongful Death and Survival statutes expanded the window for filing a cause of action by incorporating a discovery rule; thus, no question is even raised of the propriety of retroactive application. In short, both because the Massachusetts Plaintiffs have satisfied the requirements to allege fraudulent concealment by virtue of a breach of fiduciary relationship under Mass.Gen.L. ch. 260, § 12, and because they are entitled to a discovery rule under the Massachusetts Wrongful Death and Survival Statutes, the Court DENIES the motions to dismiss the Massachusetts Plaintiffs’ remaining state law claims insofar as they are premised on the conduct of boron neutron capture therapy in Massachusetts. VI. Bivens. The private defendants bring five main arguments in support of their various motions for dismissal or summary judgment on the viability of the Plaintiffs’ Bivens claim. First, they contend that Bivens is not available against private defendants. Second, they argue that Bivens is not available against non-individual entities, even if suit can be brought against private defendants. Third, the private defendants believe that the Plaintiffs cannot show, as matter of law, that the private defendants acted under color of law, a prerequisite to Bivens liability. Finally, the private defendants contend that, even if they did act under color of law, the claim should be dismissed both because the Plaintiffs have failed to allege a violation of a constitutional right and because, even if they have, any such right was not clearly established at the time of the challenged conduct. This Court treats each issue as arising on a motion to dismiss, except with respect to the issue of whether the private defendants can be considered government actors. Because the Court has received extensive documents from Associated Universities and the Plaintiffs with respect to that issue, it is treated as a motion for summary judgment. A. Availability of Bivens Against Private Actors. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized an implied cause of action for damages against federal agents who allegedly violate a plaintiffs constitutional rights. The Supreme Court has not considered whether Bivens extends to suits against private parties acting under color of federal law. The First Circuit has stated, in dicta, that “[wjhile federal officers may, at times, be subject to suit for unconstitutional behavior, ..., there is no cause of action against private parties acting under color of federal law or custom.” Fletcher v. Rhode Island Hosp. Trust Nat’l Bank, 496 F.2d 927, 932 n. 8 (1st Cir.1974) (citation omitted); accord Kelley v. Action for Boston Community Dev., Inc., 419 F.Supp. 511, 525 (D.Mass.1976) (Tauro, J.). Other courts have read Fletcher as precluding a plaintiff from ever bringing a Bivens claim against a private party, even if that party has acted under color of federal law. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 720 n. 5 (10th Cir.1988); Alexander v. Pennsylvania Dep’t of Banking, No. 93-5510, 1994 WL 144305, at *3 (E.D.Pa. Apr.21, 1994); Lovelace v. Whitney, 684 F.Supp. 1438, 1442 n. 4 (N.D.Ill.1988); Stevens v. Morrison-Knudsen Saudi Arabia Consortium, 576 F.Supp. 516, 520-21 (D.Md.1983). In a later case, however, the First Circuit seemed to assume, without deciding, that a Bivens action could lie against a private party if it had acted under color of federal law. See Gerena v. Puerto Rico Legal Servs., Inc., 697 F.2d 447, 452 (1st Cir.1983). While other Courts of Appeals have considered this question, none has adopted the Fletcher position. Four Courts of Appeals have held that a private party acting in concert with a federal actor may be held liable under Bivens for constitutional harms. See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir.1987); Reuber v. United States 750 F.2d 1039, 1057 (D.C.Cir.1984); Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1222-23 (5th Cir.1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392, 1393 (6th Cir.1975). Three others have declined to answer whether a plaintiff may assert a Bivens claim against a private actor. See DeVargas, 844 F.2d at 720 n. 5; Morast v. Lance, 807 F.2d 926, 930-31 (11th Cir.1987); McNally v. Pulitzer Publ’g Co., 532 F.2d 69, 75-76 (8th Cir.1976); see also Lovelace, 684 F.Supp. at 1442 n. 4; Stevens, 576 F.Supp. at 520-21. Given the ambiguous nature of the First Circuit’s Fletcher opinion and the contrary consensus of the majority of the other Circuit Courts of Appeal, this Court holds that Bivens does extend to actions against private parties who act under color of federal law. B. Availability of Bivens Against Non-Individual Entities. A special issue remains with respect to the Bivens action against MIT, Mass General, and Associated Universities; namely, whether the Supreme Court’s decision in Federal Deposit Insurance Corporation v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), precludes a Bivens action against non-individual private entities, regardless of whether Bivens applies to private actors. In Meyer, the Supreme Court refused to extend Bivens to suits against federal agencies. The Court reasoned that extension of Bivens to entities would eviscerate one of the goals of Bivens, which is to deter individual officers from inflicting constitutional harms. See id. at 485, 114 S.Ct. 996. Because agencies are not entitled to qualified immunity while individual officials are, plaintiffs in a Bivens suit would invariably sue the federal agency rather than the official, thereby undermining the deterrent effect of the suit. As an alternate ground for its decision, the Meyer Court noted that the potential for direct suits against federal agencies raised serious concerns of federal fiscal policy that were best left for Congress to decide. See id. at 486, 114 S.Ct. 996. The D.C. Circuit has interpreted Meyer to preclude a Bivens action against a private entity with links to the federal government. See Kauffman v. Anglo-American Sch. Of Sofia, 28 F.3d 1223, 1224 (D.C.Cir.1994). In Kauffman, the plaintiff sued a private school after its governing board fired him from his position as the school’s director. See id. The school received funding from the State Department, which had created the school to provide elementary education to the children of diplomats stationed in Sofia, Bulgaria. See id. The court held that Meyer barred the plaintiffs Bivens claim even though the school was not a federal agency because it would frustrate the deterrent goal of Bivens and because the Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Id. at 1228 (citing Meyer, 510 U.S. at 484, 114 S.Ct. 996). By contrast, in Hammons v. Norfolk S. Corporation, 156 F.3d 701, 705-06 (6th Cir.1998), the Sixth Circuit held that Meyer does not bar Bivens actions against private entities engaging in federal action. The court criticized-the Kauffman court’s contention that deterrence is the primary goal of Bivens, and stated that while deterrence “is an important policy consideration,” the main goal of Bivens “is to provide a remedy for victims of constitutional violation.” Id. at 706 n. 10. The court also noted that under 42 U.S.C. § 1983, which “raise[s] identical concerns” as Bivens, corporations engaging in state action can be held liable for constitutional violations. Id. at 707. Thus, the court declined to “treat corporations that engage in federal action differently than corporations engaging in state action....” Id. at 708. The Sixth Circuit’s opinion in Hammons represents the better reasoned approach. Both of the grounds for the Supreme Court’s conclusion in Meyer are inapplicable in the case of a private entity defendant. First, because qualified immunity is available to all private defendants, whether entity or individual, see infra Section VI(E), the possibility of undermining deterrence by inducing plaintiffs to sue entities rather than individuals is not raised. One might object that plaintiffs will still concentrate their litigious efforts against entities due to their relatively deep pockets vis a vis individual private defendants. Such an objection unwittingly raises an even more important distinction from the Meyer facts: with