Paul Lietz v. Andrew Wilpher ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL LIETZ, No. 19-35593
Plaintiff-Appellant, D.C. No. 1:18-cv-00554-EJL
v.
MEMORANDUM*
ANDREW WILPHER, Chief of Staff Boise
VA Medical Center; KERI BARBERO,
Chairperson, Disruptive Behavior Committee
Boise VA Medical Center; DOES, John and
Jane Doe 1-25,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted April 14, 2022
Seattle, Washington
Before: HAWKINS and FORREST, Circuit Judges, and RESTANI,** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
1
Plaintiff Paul Lietz appeals the district court’s dismissal of his Bivens1 First
Amendment retaliation claim against several staff members at the Boise Veterans
Affairs Medical Center (the VA). We reject the VA’s assertion that we lack
jurisdiction under 38 U.S.C. § 511 because in the specific context of this case Lietz
does not seek review of any underlying decision made by the VA in “the course of
making benefits determinations.” Veterans for Common Sense v. Shinseki, 678 F.3d
1013, 1025 (9th Cir. 2012) (en banc) (internal quotation marks and citation omitted);
see Gila River Indian Cmty. v. Dep’t of Veterans Affs., 899 F.3d 1076, 1080 (9th Cir.
2018).
On the merits, to determine whether a cause of action exists under Bivens, the
Supreme Court has set forth a two-step analysis. First, we ask whether the claim
“arises in a new context or involves a new category of defendants.” Hernandez v.
Mesa, __ U.S. __, 140 S. Ct. 735, 743 (2020) (internal quotation marks and citation
omitted). “We regard a context as ‘new’ if it is ‘different in a meaningful way from
previous Bivens cases decided by [the Supreme] Court.’” Id. (citation omitted). If
the claim does arise in a new context, at step two we consider “whether there are any
special factors that counsel hesitation about granting the extension.” Id. (internal
quotation marks and citation omitted).
1
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
2
We conclude that Lietz’s Bivens claim arises in a new context. Although the
Ninth Circuit previously extended Bivens to First Amendment claims, the Supreme
Court has never expressly done so. Compare Boule v. Egbert, 998 F.3d 370, 392 (9th
Cir. 2021) (finding that a Bivens remedy was available for a First Amendment
retaliation claim), with Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have
never held that Bivens extends to First Amendment claims.”). We further conclude
that the “comprehensive, remedial structure” of the Veterans’ Judicial Review Act
(VJRA) is a special factor that counsels hesitation against extending Bivens to this
context. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (declining to extend
Bivens to a veteran’s First Amendment retaliation claim). Given the VJRA’s
comprehensive nature, that Congress did not include a cause of action for Lietz’s
retaliation claim suggests that his inability to obtain damages “was not inadvertent
on the part of Congress,” but instead “raises the inference that Congress expected
the Judiciary to stay its Bivens hand.” W. Radio Servs. Co. v. U.S. Forest Serv., 578
F.3d 1116, 1122–23 (9th Cir. 2009) (internal quotation marks and citation omitted).
Accordingly, we decline to recognize a Bivens cause of action for Lietz’s First
Amendment retaliation claim.
AFFIRMED.
3