David Harper v. Michael Nedd ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID HARPER, No. 22-35036
Plaintiff-Appellee,
D.C. No.
v. 1:21-cv-00197-
CRK
MICHAEL D. NEDD, Deputy
Director; KEVIN T. GRAHAM, Chief,
Defendants-Appellants, OPINION
and
U.S. DEPARTMENT OF THE
INTERIOR; DEB HAALAND,
Defendants.
Appeal from the United States District Court
for the District of Idaho
Claire R. Kelly, International Trade Judge, Presiding
Argued and Submitted March 29, 2023
University of Idaho, Moscow
Filed June 26, 2023
Before: Richard C. Tallman, Ryan D. Nelson, and Danielle
J. Forrest, Circuit Judges.
Opinion by Judge R. Nelson
2 HARPER V. NEDD
SUMMARY*
Civil Rights/Bivens
In an interlocutory appeal, the panel reversed the district
court’s denial of defendants’ motion to dismiss an action
alleging due process violations and seeking damages pursuant
to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
David Harper, a former Bureau of Land Management
(“BLM”) Law Enforcement Ranger in Idaho, challenged
adverse employment actions taken against him by the
Department of the Interior and BLM officials. He sued
defendants alleging a violation of his Fifth Amendment right
to due process.
The panel held that Harper had no claim for money
damages under Bivens. Citing Egbert v. Boule, 142 S. Ct.
1793 (2022), the panel stated that the Supreme Court means
what it says: Bivens claims are limited to the three contexts
the Court has previously recognized and are not to be
extended unless the Judiciary is better suited than Congress to
provide a remedy. Here, Harper’s claims arose in a different
context than what the Court has recognized. Congress has
also already provided a remedy in this context under the Civil
Service Reform Act of 1978. Because this case involves an
alternative remedial structure, this case exists in a novel
context outside the preexisting Bivens framework. Extending
Bivens here would risk impermissible intrusion into the
functioning of both the Legislative and Executive Branches.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HARPER V. NEDD 3
COUNSEL
Dana L. Kaersvang (argued) and Barbara L. Herwig,
Appellate Staff Attorneys; Peter L. Wucetich, Assistant
United States Attorney; Joshua D. Hurwit, United States
Attorney; Brian M. Boynton, Principal Deputy Assistant
Attorney General; United States Department of Justice;
Washington, D.C.; for Defendants-Appellants.
Randolph B. Neal (argued), Law Office of Randolph B.
Neal, Idaho Falls, Idaho, for Plaintiff-Appellee.
OPINION
R. NELSON, Circuit Judge:
We assess a Fifth Amendment Bivens action given
Egbert v. Boule, 142 S. Ct. 1793 (2022). The Supreme Court
means what it says: Bivens claims are limited to the three
contexts the Court has previously recognized and are not to
be extended unless the Judiciary is better suited than
Congress to provide a remedy. Here, David Harper’s claims
arise in a different context than what the Court has
recognized. Congress has also already provided a remedy in
this context under the Civil Service Reform Act of 1978. As
such, we reverse the district court’s expansion of Bivens and
remand for proceedings consistent with this opinion.
I
Harper, a former Bureau of Land Management (BLM)
Law Enforcement Ranger in Idaho, challenges adverse
employment actions taken against him by the Department of
the Interior (DOI) and BLM officials. In 2018, a DOI Office
4 HARPER V. NEDD
of the Inspector General (OIG) special agent interviewed
Harper regarding allegations that a BLM manager had
engaged in sexual harassment. Harper first denied that the
alleged conduct occurred. But upon further questioning,
Harper backtracked, acknowledging that the manager had
sent him “some joking text messages,” including sexual
animations.
Based on the OIG interview, Harper was found to have a
“lack of candor.” Harper alleges that he was never told he
lacked candor, and the OIG never investigated him further
in connection with his interview responses. Harper
attributes the “lack of candor” finding to Kevin Graham, a
BLM human relations advisor. Graham at first
recommended suspending Harper for 14 days but later
recommended removal. Graham allegedly instructed BLM
officials to adopt both recommendations. The BLM
suspended Harper for 14 days without pay for serious
misconduct and permanently reassigned him to a non-law
enforcement position.
Harper appealed this adverse decision to the BLM’s
Idaho State Director (Director). The Director appointed an
investigator, who concluded that there was “no credible
evidence to sustain the charge of lack of candor.” Before the
Director issued his decision, Michael Nedd—BLM’s Deputy
Director of Operations—allegedly stepped in and upheld the
reassignment, but noted Harper could apply for future law
enforcement vacancies. Harper then requested review by
DOI human resource officials who found that BLM had
followed the appropriate processes.
Harper later applied for another BLM law enforcement
ranger position in Idaho and received a tentative offer, but
the offer was rescinded. Harper alleges that Nedd and
HARPER V. NEDD 5
Graham directly intervened to prevent his hiring. Harper has
also unsuccessfully applied to other similar law enforcement
positions.
Harper sued Nedd and Graham, asserting a violation of
his Fifth Amendment right to due process and seeking
damages under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants moved to dismiss, arguing that Harper had no
Bivens claim and that Defendants were entitled to qualified
immunity. The district court rejected Defendants’ Bivens
challenge and denied qualified immunity. We now address
Graham and Nedd’s interlocutory appeal “because the
existence of the cause of action is an antecedent legal
question defining the claim, and it is directly implicated by
the defense of qualified immunity.” Mejia v. Miller, 61 F.4th
663, 665 (9th Cir. 2023) (internal citation omitted).
II
We have jurisdiction under 28 U.S.C. § 1291. See
Pettibone v. Russell, 59 F.4th 449, 452 (9th Cir. 2023). We
review the district court’s decision on a motion to dismiss de
novo. Fayer v. Vaughn, 649 F.3d 1061, 1063–64 (9th Cir.
2011) (per curiam). “A motion to dismiss will only be
granted if the complaint fails to allege ‘enough facts to state
a claim to relief that is plausible on its face.’” Id. at 1064(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Factual allegations are accepted as true and
pleadings are construed in the light most favorable to the
non-moving party. Id. But “conclusory allegations of law
and unwarranted inferences are insufficient to defeat a
motion to dismiss.” Id. (quoting Adams v. Johnson, 355 F.3d
1179, 1183 (9th Cir. 2004)).
6 HARPER V. NEDD
III
We conclude Harper has no claim for damages under
Bivens.
A
Under 42 U.S.C. § 1983, plaintiffs may sue state officials
acting under the color of state law for money damages for
violating the constitution. No federal statute, however,
extends a cause of action against federal officials.
Fifty years ago, in Bivens, the Supreme Court held that
the plaintiff had an implied cause of action for damages
against federal officials for a Fourth Amendment
unreasonable search and seizure. 403 U.S. at 396–97.
Following Bivens, the Court recognized just two other types
of implied damages claims under the Constitution. In Davis
v. Passman, it applied Bivens to a former congressional
staffer’s gender-based employment discrimination claim
under the Fifth Amendment’s Due Process Clause. 442 U.S.
228, 248–49 (1979). And it did so in Carlson v. Green,
recognizing an Eighth Amendment claim against federal
prison officials for failing to treat a prisoner’s severe asthma.
446 U.S. 14, 16 n.1., 19 (1980). The Supreme Court has
never recognized another Bivens claim in the last 43 years.
Post-Carlson, expanding Bivens to any other contexts
became a “disfavored judicial activity.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017) (internal quotation marks and
citation omitted). Since Carlson, the Court has consistently
refused to extend Bivens in the twelve times the issue has
come before it. See Tate v. Harmon, 54 F.4th 839, 843 (4th
Cir. 2022). And in the past six years alone, the Court has
issued three opinions reinforcing a bar to expanding Bivens,
explaining that it has “come to appreciate more fully the
HARPER V. NEDD 7
tension between judicially created causes of action and the
Constitution’s separation of legislative and judicial power.”
Egbert, 142 S. Ct. at 1803 (cleaned up); see also Hernandez
v. Mesa, 140 S. Ct. 735, 741 (2020); Ziglar, 137 S. Ct. at
1857.
This recent trilogy of cases is instructive. We must apply
a two-step framework, asking first whether the claim arises
in a new context, and second, if so, whether other special
factors counsel hesitation against extending Bivens.
Hernandez, 140 S. Ct. at 743; see Ziglar, 137 S. Ct. at 1859–
60.
As to the first step, the Supreme Court has articulated a
broad understanding of whether a context is new.
Hernandez, 140 S. Ct. at 743. If the case is “different in a
meaningful way” from the Court’s three previous Bivens
cases, then the context is “new.” Id.A case might differ in a meaningful way
because of the rank of the officers involved;
the constitutional right at issue; the generality
or specificity of the official action; the extent
of judicial guidance as to how an officer
should respond to the problem or emergency
to be confronted; the statutory or other legal
mandate under which the officer was
operating; the risk of disruptive intrusion by
the Judiciary into the functioning of other
branches; or the presence of potential special
factors that previous Bivens cases did not
consider.
Ziglar, 137 S. Ct. at 1860. In contrast, step two’s “special
factors” inquiry is not governed by “an exhaustive list,” but
8 HARPER V. NEDD
concerns whether Congress might disapprove of creating the
new damages remedy and whether the Judiciary is well
suited, absent congressional direction, to weigh the costs and
benefits of allowing a damages action to proceed.
Hernandez, 140 S. Ct. at 743.
Egbert—issued after the district court’s decision
below—further clarified that these two steps “often resolve
to a single question: whether there is any reason to think that
Congress might be better equipped to create a damages
remedy.” 142 S. Ct. at 1803. “[I]f there is any reason to
think that ‘judicial intrusion’ into a given field might be
‘harmful’ or ‘inappropriate,’” or “even if there is the
‘potential’ for such consequences, a court cannot afford a
plaintiff a Bivens remedy.” Id. at 1805 (emphasis original)
(first quoting United States v. Stanley, 483 U.S. 669, 681
(1987); and then quoting Ziglar, 137 S. Ct. at 1859–60,
1864–65).
We have addressed the Bivens question post-Egbert and
similarly declined to extend Bivens to a new cause of action.
See, e.g., Mejia, 61 F.4th at 669; Pettibone, 59 F.4th at 456–
57. In Mejia, we held that a Fourth Amendment excessive
force claim brought under the Federal Tort Claims Act
against a BLM officer presented a new Bivens context in part
because, as here, the BLM official constituted a new
category of defendants. 61 F.4th at 668–69. In so doing, we
referenced the Supreme Court’s decision in Wilkie v.
Robbins, 551 U.S. 537 (2007), which previously declined to
extend Bivens to a due process claim against a BLM official.
Mejia, 61 F.4th at 668. In Wilkie, the Supreme Court noted
that Congress was better suited to evaluate the effect of “‘a
new species of litigation’ against those who act on the
public’s behalf.” 551 U.S. at 562. Applying this logic in
Mejia, we concluded that “given this new context, special
HARPER V. NEDD 9
factors counsel against implying a cause of action here”
because there would be “‘systemwide consequences’ for
BLM’s mandate to maintain order on federal lands, and
uncertainty about these consequences provides a reason not
to imply such a cause of action.” 61 F.4th at 668–69
(cleaned up) (quoting Egbert, 142 S. Ct. at 1803–04).
In Pettibone we found that the plaintiff’s Fourth
Amendment Bivens claim presented a new context because
“the rank of the officers involved; . . . the generality or
specificity of the official action; . . . the statutory or other
legal mandate under which the officer was operating; [and]
the risk of disruptive intrusion by the Judiciary into the
functioning of other branches” all presented different
dimensions apart from the Fourth Amendment claim in
Bivens. 59 F.4th at 455 (alterations in original) (quoting
Ziglar, 137 S. Ct. at 1859–60). We held that the plaintiff’s
claim presented a new context, even though it was a Fourth
Amendment claim like in Bivens. See id. Bivens concerned
agents of the Federal Bureau of Narcotics who, without a
warrant, “entered [Bivens’s] apartment[,] . . . manacled
[him] in front of his wife and children, and threatened to
arrest the entire family” before “search[ing] the apartment
from stem to stern.” 403 U.S. at 389. In contrast, in
Pettibone, Russell, a high-level supervisor of the Federal
Protective Service, was of a different rank than the federal
narcotics agents in Bivens, and Russell’s alleged “ordering
or acquiescing in unconstitutional conduct, took place at a
higher level of generality than the actions of the agents in
Bivens, who personally seized Bivens and searched his
apartment.” 59 F.4th at 455.
We also held that directing a multi-agency operation to
protect federal property involved a different legal mandate
than in Bivens. Id. And since Russell was carrying out an
10 HARPER V. NEDD
executive order, there was a greater “risk of disruptive
intrusion by the Judiciary into the functioning of other
branches” than in Bivens. Id. (quoting Ziglar, 137 S. Ct. at
1860). These distinctions were “more than sufficient to
make this a new Bivens context,” and thus we did not expand
Bivens. Id.B
With this background in mind, we decline to extend
Bivens here. This case presents both a meaningfully
different context than past Bivens cases, and several factors
signal that Congress, not the Judiciary, is better suited to
formulate a damages remedy.
1
Harper argues that his claim does not present a new
context because it arises under the Fifth Amendment’s Due
Process Clause and is indistinguishable from the claim in
Davis. But as even the district court noted, this case “can be
said to arise in a new context.” Harper v. U.S. Dep’t of the
Interior, 571 F. Supp. 3d 1147, 1164 n.7 (D. Idaho 2021).
We agree with this part of the district court’s analysis.
The Supreme Court has identified that “a case that
involves ‘a new category of defendants’” presents a new
context. Egbert, 142 S. Ct. at 1803 (quoting Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 68 (2001)). The defendant
in Davis was a United States Congressman. 442 U.S. at 230.
Applying a case about an elected official within the
Legislative Branch to BLM employees within the Executive
Branch would expand Davis to a new category of
defendants.
Moreover, additional factors, such as “the statutory or
other legal mandate under which the officer was operating”
HARPER V. NEDD 11
further show that this case presents a new Bivens context.
Ziglar, 137 S. Ct. at 1860. This case involves an internal
Executive Branch employment dispute governed by a
separate legal mandate, the Civil Service Reform Act of
1978 (CSRA), Pub. L. 95-454, 92 Stat. 1111 (1978)
(codified in various sections of 5 U.S.C.). No such
framework existed in Davis. 442 U.S. at 231, 247.
The CSRA establishes detailed procedures governing
federal employee discipline, including methods by which
employees may challenge adverse disciplinary actions.
Serious adverse employment actions may generally be
appealed to the Merit Systems Protection Board (MSPB),
with judicial review of those decisions available in federal
court. See 5 U.S.C. §§ 7512, 7513(d), 7703(b)(1). For less
severe personnel actions, employees may seek corrective
action from the Office of Special Counsel. See 5 U.S.C. §
1214(a)(3). The DOI also has its own internal grievance
procedures for personnel actions outside of MSPB
jurisdiction.
Because this case involves an alternative remedial
structure, this case exists in a novel context outside the
preexisting Bivens framework.1
1
Harper alleges that Defendants conspired to deprive him of an appeal
to the MSPB. But Harper requested a review from DOI human resource
officials, who separately found that BLM had followed the appropriate
processes, and Harper does not allege any involvement of Defendants or
impropriety on the part of DOI human resources in reaching that finding.
Therefore, even accepting as true Harper’s allegation that Defendants’
conduct was aimed to deprive him of CRSA procedures, Harper still
benefitted from an existing alternative remedial scheme.
12 HARPER V. NEDD
2
We next examine whether, given that this case arises in
another context, any factors counsel against expanding
Bivens. Again, the Supreme Court has instructed that such
an expansion is a “disfavored judicial activity.” Ziglar, 137
S. Ct. at 1857 (internal quotation marks and citation
omitted). We conclude that no other factors warrant
recognizing a new Bivens action.
“Under Egbert, rarely if ever is the Judiciary equally
suited as Congress to extend Bivens even modestly.” Mejia,
61 F.4th at 669. That is because “[t]he creation of a new
cause of action is inherently legislative, not adjudicative.”
Id. Essentially then, future extensions of Bivens are dead on
arrival. This case presents no exception. Extending Bivens
here risks impermissible intrusion into the functioning of
both the Legislative and Executive Branches. As discussed,
the CSRA guides the Executive Branch in addressing
disciplinary disputes. Because Congress passed the CSRA
to achieve these goals, extending Bivens to allow
government employees to sue their supervisors for damages
over disciplinary actions would significantly intrude into
those functions. We decline Harper’s invitation to do so.
The district court found that the CSRA did not foreclose
Harper’s Bivens claim because he alleged that Defendants
took “ultra vires actions” that “corrupted” the CSRA process
and violated his Fifth Amendment rights. Harper, 571 F.
Supp. 3d at 1163, 1166. According to the district court,
Harper’s claims were distinguishable from case law refusing
to extend Bivens in the context of the CSRA because the
“sole purpose and effect” of Defendants’ alleged actions
“was to obstruct the legitimate procedures for appealing
personnel actions set forth in the CSRA.” Id. at 1166. The
HARPER V. NEDD 13
district court reasoned that it was “doubtful that Congress
intentionally chose to leave plaintiffs in Harper’s position
without a remedy.” Id.
But both Egbert and our case law establish that this was
the wrong framing. Under Egbert, “a court may not fashion
a Bivens remedy if Congress already has provided, or has
authorized the Executive to provide, ‘an alternative remedial
structure.’” 142 S. Ct. at 1804 (quoting Ziglar, 137 S. Ct. at
1858). Here, “the relevant question is not . . . whether the
court should provide for a wrong that would otherwise go
unredressed.” Id. Our proper inquiry is whether the
Judiciary, “rather than the political branches, is better
equipped to decide whether existing remedies should be
augmented by the creation of a new judicial remedy.” Id.(quotation marks and citation omitted). Indeed, “the CSRA
precludes even those Bivens claims for which the act
prescribes no alternative remedy.” Saul v. United States, 928
F.2d 829, 840 (9th Cir. 1991).
Here, as in Egbert, Congress has provided alternative
remedies for aggrieved individuals like Harper. See, e.g., 5
U.S.C. §§ 1214(a)(3), 7512–13(d), 7703(b)(1). Harper
pursued this alternative remedial scheme. Specifically,
Harper appealed his reassignment to the MSPB, albeit his
appeal was rejected for lack of jurisdiction; the BLM Idaho
State Director investigated after he filed an administrative
grievance; and, after his grievance was denied, Harper
sought Department-level review and DOI’s Chief Human
Capital Officer determined that he received all process
available to him and that BLM had followed all the
appropriate procedures in handling his case. Harper asserts
that in removing him from his law enforcement role,
Defendants gave him a slight raise to avoid MSPB
jurisdiction. Regardless of whether this was Defendants’
14 HARPER V. NEDD
intent, extending Bivens to such a context would undermine
Congress’s apparent determination that the level of
discipline Harper received was not severe enough to warrant
further protections. Thus, “[s]o long as Congress or the
Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence, the
courts cannot second-guess that calibration by
superimposing a Bivens remedy.” Egbert, 142 S. Ct. at
1807.
Congress is better suited to determine appropriate
remedies here, as it has already done so in the CSRA. No
doubt Harper desires greater remedies; but CSRA remedies
are what Congress established. We do not second guess
Congress’s determination.2 See Saul, 928 F.2d at 840.
Indeed, we have held that “[t]he CSRA’s comprehensive
remedial provisions convince us that there was no
inadvertence by Congress in omitting a damages remedy
against supervisors whose work-related actions allegedly
violate a subordinate’s constitutional rights.” Id. And under
Egbert, “[a] court faces only one question: whether there is
any rational reason (even one) to think that Congress is
better suited to ‘weigh the costs and benefits of allowing a
damages action to proceed.’” 142 S. Ct. at 1805 (quoting
Ziglar, 137 S. Ct. at 1858) (emphasis in original). The
CRSA provides that rational reason.
2
Harper also suggests that his Bivens claim should survive because his
complaint sought equitable relief. But we have “distinguished between
damages actions against individuals under Bivens and actions for
injunctive relief against the United States or its officers in their official
capacity.” Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016).
“By definition, Bivens suits are individual capacity suits and thus cannot
enjoin official government action.” Id.HARPER V. NEDD 15
IV
Harper’s claims arise in a different context than the
limited and narrow Bivens actions recognized by the
Supreme Court decades ago. And Congress has already
provided, and is better suited to address, remedies for
Harper’s claims here. Thus, we decline to extend Bivens;
Harper has no Bivens cause of action.3
REVERSED AND REMANDED.
3
Because we find Harper’s Bivens claim foreclosed, we need not address
whether Graham and Nedd are entitled to qualified immunity.