Liff v. Office of Inspector General for U.S. Department of Labor

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2017 Decided February 6, 2018

No. 16-5045

STEWART LIFF AND STEWART LIFF & ASSOCIATES, INC.,

APPELLEES

v.

OFFICE OF INSPECTOR GENERAL FOR THE U.S. DEPARTMENT

OF LABOR, ET AL.,

APPELLEES

DANIEL PETROLE, FORMER INSPECTOR GENERAL OF THE

OFFICE OF THE INSPECTOR GENERAL FOR THE U.S.

DEPARTMENT OF LABOR, IN HIS INDIVIDUAL AND/OR OFFICIAL

CAPACITIES, ET AL.,

APPELLANTS

Consolidated with 16-5370

Appeals from the United States District Court

for the District of Columbia

(No. 1:14-cv-01162)

Benjamin M. Shultz, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs was

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Michael S. Raab, Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

Paul Y. Kiyonaga argued the cause and filed the briefs for

plaintiffs-appellees.

Before: GARLAND, Chief Judge, and PILLARD and

WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Stewart Liff runs a human

resources consulting business that contracts with various

government and private clients – or he did, he alleges, prior to

the reputational injury caused by scurrilous reports from the

Office of Inspector General for the Department of Labor

(“DOL-OIG”) and the Office of Personnel Management

(“OPM”), disseminated by government officials and publicized

by the Washington Post. Liff, individually and through his

consulting business, Stewart Liff & Associates, Inc., sued

DOL, DOL-OIG and OPM alleging violations of his due

process rights and the Administrative Procedure Act. Liff

asserted a claim for damages under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), alleging that individual officers – acting DOL Inspector

General Daniel Petrole, DOL Deputy Secretary Seth Harris,

and OPM Director John Berry (collectively, “the Bivens

Defendants” or “Defendant-Appellants”), as well as two

unknown agents – violated his constitutional rights under the

Due Process Clause of the Fifth Amendment by issuing

erroneous reports that damaged Liff’s reputation, barred him

from future government contracts, and deprived him of his

liberty interest in pursuing his chosen profession.

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Defendants filed a motion to dismiss, in which Defendant-

Appellants Petrole, Harris, and Berry moved to dismiss Liff’s

Bivens claim on the basis that alternative remedies were

available to protect his constitutional interest and on qualified-

immunity grounds, arguing that they had violated no clearly

established constitutional right. The District Court denied the

motion as to the Bivens Defendants, reasoning that it was

“premature” to decide whether a Bivens remedy was available

and rejecting Defendant-Appellants’ assertion of qualified

immunity. The agencies and the Bivens Defendants sought

reconsideration of other aspects of the District Court’s

decision. The Bivens Defendants then appealed the District

Court’s initial decision on the motion to dismiss, asserting that

it was error not to decide the availability of a Bivens remedy

and that they were entitled to qualified immunity.

We reverse. The District Court should have decided the

availability of a Bivens remedy as a threshold question gating

whether the Bivens Defendants must defend against this suit in

their personal capacities. Reviewing that question of law

directly, we conclude that no Bivens remedy is available for

Liff’s claims. Congress has provided significant remedies for

disputes between contractors and the government entities that

engage them, as well as for persons aggrieved by the

government’s collection, maintenance, and dissemination of

information. In light of these alternative remedies and the

comprehensive remedial schemes they represent, we decline to

extend a Bivens remedy for Liff’s claims.

Background

We accept as true the well-pleaded allegations of the

Complaint for the purpose of this appeal, as did the District

Court. See Davis v. Billington, 681 F.3d 377, 379 (D.C. Cir.

2012); Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008).

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Liff is a “nationally-recognized consultant . . . on human

resources management issues.” Compl. I. After retiring from

a career in the Department of Veterans Affairs (“VA”), Liff

opened a consulting firm called Stewart Liff & Associates and

began providing training and resources on management issues

for various government entities. His clients included the VA,

the Departments of Labor, Defense, Agriculture, and Treasury,

OPM, the State of Georgia, and the World Bank. Compl.

¶¶ 15-16. Some 90% of Liff’s consulting and training work

was for federal agencies. Compl. ¶ 18.

In 2009, Liff was hired as a subcontractor to provide

consulting services to the Department of Labor Veterans’

Employment and Training Service (“DOL-VETS”), after

Assistant Secretary of Labor Ray Jefferson directed agency

contracting staff to look into procuring Liff’s services. Compl.

¶¶ 20-22. Liff alleges that Jefferson requested that DOL-VETS

staff Angela Freeman and Paul Briggs “determine whether Liff

could be hired to provide consulting services, in accordance

with the law and applicable ethical principles.” Compl. ¶ 21.

DOL-VETS eventually hired Liff as a subcontractor through

contractors For Your Information, Inc. and MSTI, Inc. Compl.

¶¶ 22-23. Liff’s work for DOL-VETS included three

“management assessment reports” on topics including

“program development methods and processes,” union

relations, “visual management strategies at DOL-VETS to

boost employee performance,” and ways to improve the

tracking and evaluation of agency programs. See Compl.

¶¶ 26-29.

The events giving rise to Liff’s claim begin with “an

expanded version of the first management assessment report”

suggesting changes to the DOL-VETS office. Compl.

¶¶ 32-33. Following complaints from DOL-VETS employees

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Freeman and Briggs about Liff’s report, DOL-OIG began an

investigation into Liff’s services. Under acting Inspector

General Petrole, DOL-OIG issued a report in July 2011, which

concluded that DOL-VETS improperly hired Liff under

pressure from Jefferson. Compl. ¶ 38. The DOL-OIG report

bore a banner stating that “[the report] and its contents are not

to be distributed outside of [the] agency.” Compl. ¶ 39

(emphasis omitted). However, the report eventually was

posted publicly on the internet, and the Washington Post

published an article in which “Liff was a central focus.”

Compl. ¶¶ 39, 45. Liff alleges that the report and related

publicity included “blatant misstatements and false

characterizations,” including about Liff’s relationship with

Jefferson, about Liff’s timekeeping practices, that one of Liff’s

“key roles . . . was that of a quasi interior designer ‘picking

colors,’” that Liff was paid some $700,000 for his consulting

work, and that Liff worked on a “secret report” for Jefferson,

“thereby suggesting that Liff had engaged in illicit, unethical

activities.” Compl. ¶ 42.

After this information became public, Deputy Secretary

Seth Harris issued a memorandum which “prais[ed] DOL-OIG

for its report and set[] forth concrete follow-up actions”

including a “vow[]” to “‘aggressively pursue’ Liff for ‘all valid

causes of action.’” Compl. ¶ 48. Liff “was not apprised of

these specific allegations” before Harris issued the

memorandum and “thus did not have an opportunity to

meaningfully respond.” Id. Like the DOL-OIG report,

Harris’s memorandum was posted online. Id.

Liff also worked with OPM. In July 2011, Liff learned

that the Office of the Inspector General for OPM (“OPM-

OIG”) “had initiated an investigation into how Liff’s services

as a subcontractor to OPM . . . had been arranged.” Compl.

¶ 47. In August 2011, OPM “terminat[ed] the task order under

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which Liff was providing human resources management

consulting,” for which Liff expected to be paid an outstanding

amount of “approximately $350,000.” Id. Liff did not receive

“any prior notice” of this termination “or opportunity to

meaningfully address” the underlying “negative

characterizations of [his] work.” Id.

In early 2012, Liff participated in an interview with an

OPM-OIG special agent. Compl. ¶ 49. Liff understood this

interview to be part of an investigation in which he would be a

witness. Id. On April 2, 2013, OPM-OIG issued a report which

“posited, without adequate support, that Liff’s services may

have been ‘wasteful’ of taxpayer resources as proper

procurement procedures for his services had not been used.”

Id. The next week, OPM Director Berry made public

statements disclaiming any future use of Liff’s services. In

particular, Berry wrote a publicly released letter to OPM-OIG

that stated that “he had taken steps to ‘ensure that OPM

immediately concluded any business involving Stewart Liff &

Associates, Inc.’” Compl. ¶ 50. Berry also commented in a

press conference that OPM would not use Liff’s consulting

services again. Because OPM “provides consulting services

through interagency agreements to some 150 other federal

agencies and entities,” OPM’s decision not to use Liff’s

services “contributed significantly to a broad preclusion of Liff

from future government consulting opportunities.” Id.

Liff alleges that the actions of DOL-OIG, OPM, and the

individual government officers involved have “broadly

precluded” him “from securing work in the federal sector as a

consultant or teacher” and that “many of [his] contacts in

government – key sources of potential work or referrals –

stopped returning his calls.” Compl. ¶ 52. In addition, he

“submitted competitive bids on a variety of government

contracts . . . but with one exception, has not been selected for

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any project.” Id. He has “attempted since July 2011 to ‘re-

brand’ himself as a human resources expert for private

companies, to little effect,” purportedly because of the

deleterious information publicly available as a result of the

DOL-OIG and OPM reports. Compl. ¶ 55.

Procedural History

The Bivens Defendants moved to dismiss the complaint,

arguing that there was no Bivens remedy for the reputational

harm that Liff alleged, that alternative remedies enacted by

Congress precluded judicial recognition of a Bivens remedy,

and that recognizing a Bivens action in this context would chill

speech by government officials. They also asserted a qualified-

immunity defense, contending that the alleged actions violated

no clearly established constitutional right. In addition,

Defendants argued that Liff’s constitutional claims were

untimely, as the analogous District of Columbia statute of

limitations had expired.

The District Court denied the motion as to the Bivens

Defendants. The District Court noted the argument that no

Bivens remedy was available, but declined to decide the issue,

explaining that it would await factual development because it

“appear[ed] both ill advised and premature to pronounce on the

availability of a Bivens remedy before deciding the threshold

question of whether a due-process violation ha[d] transpired.”

Liff v. Office of the Inspector Gen. for the U.S. Dep’t of Labor,

156 F. Supp. 3d 1, 18-19 (D.D.C. 2016). Turning to the

qualified-immunity issue, the District Court concluded that

Liff’s complaint sufficiently alleged that actions taken by

Harris, Petrole, and Berry interfered with Liff’s right to pursue

his chosen profession, both through de facto debarment from

contracting with OPM, as effected by Berry, and through the

“broad effect” of Harris’s and Petrole’s actions with respect to

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the DOL-OIG report. Id. at 19-20. The District Court then

found that the right was “sufficiently clear” to defeat the Bivens

Defendants’ qualified-immunity defense at the motion-to-

dismiss stage. Id. at 21.

Defendants moved for, and were granted, reconsideration

on the statute-of-limitations question, which the District Court

had declined to decide in the first instance. Defendants did not

seek reconsideration with respect to the Bivens and qualified-

immunity issues. Instead, the Bivens Defendants appealed

those holdings for our interlocutory review.

Discussion

I.

Defendant-Appellants seek this Court’s review of the

District Court’s denial of their motion to dismiss on qualified-

immunity grounds. The collateral-order doctrine permits

immediate appellate review of “a limited set of district-court

orders” that “finally determine claims of right separable from,

and collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself” to

justify delay. Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)

(quotation marks and citation omitted). A district court’s

denial of a qualified-immunity claim is one such exception

“because qualified immunity . . . is both a defense to liability

and a limited ‘entitlement not to stand trial or face the other

burdens of litigation.’” Id. at 672 (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). Because the “defense of qualified

immunity from a Bivens damages action directly implicates the

antecedent question whether to recognize that Bivens action at

all,” Davis, 681 F.3d at 380 (quotation marks omitted), that

question is appropriate for interlocutory appeal. See Iqbal, 556

U.S. at 673 (explaining the collateral-order posture of the

9

Bivens issue in Wilkie v. Robbins, 551 U.S. 537 (2007)); Doe

v. Rumsfeld, 683 F.3d 390, 393 (D.C. Cir. 2012).

We review de novo the District Court’s legal conclusions

denying a motion to dismiss. Davis, 681 F.3d at 380. “[W]e,

like the district court, accept as true the well-pleaded factual

allegations of the complaint.” Id. at 379.

II.

We begin with the availability of a Bivens remedy. The

District Court declined to rule on this question; however, it is

appropriate to determine the availability of a Bivens remedy at

the earliest practicable phase of litigation because it is

“‘antecedent’ to the other questions presented,” Hernandez v.

Mesa, 137 S. Ct. 2003, 2006 (2017).

In considering the availability of a Bivens remedy, we first

look for “an ‘alternative, existing process’ capable of

protecting the constitutional interests at stake.” Minneci v.

Pollard, 565 U.S. 118, 125 (2012) (citing Wilkie, 551 U.S. at

550); Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017) (noting

that “an alternative remedial structure . . . alone may limit the

power of the Judiciary to infer a new Bivens cause of action”).

“[A] remedial statute need not provide full relief” to prompt

judicial deference because the touchstone is “who should

decide whether such a remedy should be provided.” Wilson,

535 F.3d at 705 (quoting Bush v. Lucas, 462 U.S. 367 (1983)).

“The answer most often will be Congress,” Ziglar, 137 S. Ct.

at 1857, and “[w]hen the design of a [remedial scheme]

suggests that Congress has provided what it considers adequate

remedial mechanisms for constitutional violations,” courts

decline to create additional remedies. Schweiker v. Chilicky,

487 U.S. 412, 423 (1988); see also Spagnola v. Mathis, 859

F.2d 223, 228 (D.C. Cir. 1988) (explaining that “courts must

10

withhold their power to fashion damages remedies when

Congress has put in place a comprehensive system to

administer public rights, has ‘not inadvertently’ omitted

damages remedies for certain claimants, and has not plainly

expressed an intention that the courts preserve Bivens

remedies”).

Under this rationale, the Supreme Court has declined to

extend Bivens where Congress has provided at least a partial

remedy via statute, see Bush, 462 U.S. at 388 (federal

employment law); Chilicky, 487 U.S. at 424 (Social Security);

Wilkie, 551 U.S. at 550 (various statutes), as well as where

other causes of action provide redress, see Minneci, 565 U.S.

at 120 (state tort law); Ziglar, 137 S. Ct. at 1865 (habeas or

other equitable relief). Cf. Bivens, 403 U.S. at 394 (“The

interests protected by state laws regulating trespass and the

invasion of privacy, and those protected by the Fourth

Amendment’s guarantee against unreasonable searches and

seizures, may be inconsistent or even hostile.”). This Court

itself has recognized alternative remedial schemes precluding

Bivens actions in the context of the Civil Service Reform Act,

Title VII of the Civil Rights Act of 1964, the Freedom of

Information Act, the Veterans’ Judicial Review Act, and the

Privacy Act. See Wilson, 535 F.3d at 706 (collecting cases).

Where no alternative remedy is available, courts exercise

judgment regarding the propriety of extending a judicial

remedy, “paying particular heed . . . to any special factors

counselling hesitation before authorizing a new kind of federal

litigation.” Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at

378). Courts must conduct a “special factors” analysis when

considering “new” Bivens remedies – that is, Bivens claims in

cases with “meaningful enough” differences from previously

recognized contexts, see Ziglar, 137 S. Ct. at 1859.

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III.

Defendant-Appellants assert that many and various

statutes and regulations provide alternative remedies that block

Liff’s Bivens action. Before considering the substance of those

remedies, we first address whether we should evaluate the full

scope of alternatives as presented in this appeal. Liff argues

that Defendant-Appellants’ reliance on the Privacy Act, among

other remedial statutes, was not argued before the District

Court and therefore is not properly presented.

“It is the general rule, of course, that a federal appellate

court does not consider an issue not passed upon below.”

Singleton v. Wulff, 428 U.S. 106, 120 (1976) (citation omitted).

This rule embodies the principle that litigants should not be

surprised by a decision without having had an opportunity to

address the issue being decided. Id. However, courts of

appeals have discretion to resolve issues not raised in or

decided by the district court, as may be justified by the facts of

individual cases. Id. at 121. This Court has exercised this

discretion in various “exceptional cases or particular

circumstances,” including where the issue presents “a novel,

important, and recurring question of federal law,” or where the

new argument relates to a threshold question such as the clear

inapplicability of a statute. See Lesesne v. Doe, 712 F.3d 584,

588 (D.C. Cir. 2013) (citation omitted). The Court also has

found it appropriate to resolve issues not raised in the district

court where the case “involves a straightforward legal question,

and both parties have fully addressed the issue on appeal.”

Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir.

2010); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d

416, 419 n.5 (D.C. Cir. 1992) (exercising discretion to address

an issue first raised on appeal because “the issue is purely one

of law important in the administration of federal justice, and

resolution of the issue does not depend on any additional facts

12

not considered by the district court”). For example, in Lesesne

v. Doe, the Court interpreted on appeal whether the Prison

Litigation Reform Act’s exhaustion requirement applied to

certain claims, “a dispositive legal issue antecedent to [the

statute’s] application.” Lesesne, 712 F.3d at 588. In Prime

Time International Co. v. Vilsack, the Court reversed the

district court’s grant of summary judgment, concluding that a

legal issue raised for the first time on appeal was a dispositive

defense. Prime Time, 599 F.3d at 686. In appropriate

circumstances, this approach avoids unnecessary expenditure

of judicial resources and expedites final resolution of the

parties’ dispute.

Even assuming that Defendant-Appellants did not identify

below some of the specific remedial mechanisms advanced

here, we exercise our discretion to consider those arguments.

The question of the availability of a Bivens remedy in light of

the broader statutory scheme is an issue of law, and the parties

have addressed it extensively in their briefing before this Court.

Our de novo review of the District Court’s decision

underscores this point: the parties had every incentive to put

their best foot forward with respect to all legal issues presented

on appeal, given that we would start anew in evaluating their

arguments and deciding the law – and they did so. We note

also that the posture of this issue defeats the usual forfeiture

analysis. While Defendant-Appellants did not extensively

argue below the full breadth of alternative statutory schemes

that they now advance, the additional bases upon which they

now rely further the argument that they did put forward: claims

like Liff’s are covered by other remedial systems that Congress

has implemented, which block a Bivens action regardless of

whether they are adequate to provide all of the relief he seeks.

In that sense, the additional statutory bases asserted here

constitute further support of Defendant-Appellants’ argument

below. See Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007)

13

(invocation on appeal of regulatory basis for previously

asserted argument did not raise new issue). With respect to the

Privacy Act argument in particular – where Liff most

vociferously asserts forfeiture – we note that Defendant-

Appellants cited Wilson v. Libby in their brief on the motion to

dismiss for the proposition that “the existence of a

comprehensive statutory scheme addressing the subject matter

of the lawsuit” is a special factor that “frequently precludes a

Bivens remedy.” See Liff v. Office of the Inspector Gen. for the

U.S. Dep’t of Labor, Mot. to Dismiss, ECF No. 17 (May 11,

2015); JA73. If nothing else, that precedent denying a Bivens

remedy in light of the Privacy Act indicated the Act’s

relevance.

We turn now to the various remedies that Defendant-

Appellants argue preclude a Bivens remedy. The constellation

of statutes and regulations governing federal contracts, as well

as the Privacy Act, provide a remedy for Liff’s claims. And, to

the extent that these statutes leave gaps in the remedies

available to Liff, the presence of significant legislated remedies

in this arena counsels against the recognition of a judicially

created Bivens remedy.

A.

Many of Liff’s asserted harms relate to his purported

inability to obtain government contracts – at least, his inability

to obtain contracts as frequently as he used to, as Liff has won

at least one bid since the events upon which he bases his

Complaint. Defendant-Appellants identify myriad statutes and

regulations that provide remedies for contracting-related

disputes, which they allege would encompass many of Liff’s

asserted harms. These include the Tucker Act, which provides

a cause of action in the Court of Federal Claims and in district

courts for an interested party to object to an agency’s

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solicitation of bids or proposed award or award of a contract

for “any relief that the court considers proper,” 28 U.S.C.

§ 1491(b); the Federal Acquisition Regulation, which

establishes procedures for agency procurement protests, 48

C.F.R. § 33.103; the procurement protest system, which offers

mechanisms by which a losing bidder may protest the award of

a contract in violation of a statute or regulation, 31 U.S.C.

§ 3551 et seq.; and the Contract Disputes Act, which enables

contractors to submit a claim to a federal contracting officer

regarding disputes over the administration of a current contract,

41 U.S.C. § 7103. These provisions each provide some nature

of remedy for government contractors aggrieved by contracting

decisions and administration.

We do not parse the specific applicability of this web of

contracting-related remedies in Liff’s circumstances, but

instead note the spectrum of remedies they provide. Some, like

the Contract Disputes Act, relate to contracts already

underway, while others, like the Tucker Act, provide for

challenges at earlier stages of government contracting,

including when an agency first determines to solicit bids for a

project. They also provide remedies for reputational

debarment claims like Liff’s, to the extent that official findings

or reports are relied upon in later government contracting

decisions. For example, in NCL Logistics Co. v. United States,

a would-be contractor brought a Tucker Act claim after being

rejected for a contract due to a finding that it was

“nonresponsible” – that is, that the contractor had an

inadequate record of performance. 109 Fed. Cl. 596 (Fed. Cl.

2013). The court considered the contractor’s challenge to the

responsibility determination as based on flawed assumptions

and incomplete evidence, as the finding precluded the

contractor from winning the contract. Id. at 622-26. Similarly

here, if contracting entities relied on the DOL-OIG and OPM

15

reports to deny Liff’s bids for contracts, he could have

challenged that reliance under the contracting statutes.

Liff rejects these various remedies as inapt, as he “is not

making a bid protest, contesting a contract award or

challenging the administration of a contract,” see Appellee’s

Br. 29 – all claims he does not deny could be brought under

these various contract-related provisions. But it makes no

difference, for the purpose of our analysis and the availability

of a Bivens remedy, that Liff has framed claims that “are

manifestly not contract actions,” id. at 30. Cf. A & S Council

Oil Co., Inc. v. Lader, 56 F.3d 234, 241 (D.C. Cir. 1995)

(evaluating applicability of government contracting statutes

and noting that “plaintiffs’ claim that the wrong originated in

some statutory violation does not strip the case of its

contractual character”). Clearly, Liff alleges injury outside of

what may arise in contract: his asserted damages, for instance,

go beyond the contracts that he claims he lost as a result of his

alleged reputational harm. It is equally clear, however, that lost

contracts are an inherent piece of the bigger picture. Liff

himself alleges as much, including in his Bivens claim his loss

of “his legitimate expectation of income from the OPM task

orders/contract,” for example. Compl. ¶ 82. Moreover, if Liff

lost no contracts – if business continued as usual for Liff and

his consulting firm – he presumably would not have brought

this suit. But assuming as true Liff’s allegations that he did in

fact lose contracts, as we must at this phase in the litigation,

these contracting statutes and regulations provide him recourse

with respect to those losses.

It also makes no difference if the contract-based remedies

would not provide a full remedy for Liff. The question is

whether alternative remedies exist, not whether they cover the

full breadth of harm that a would-be Bivens plaintiff alleges.

Even if gaps remain in the overlapping and extensive

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contracting remedies, Congress’s activity in this area counsels

against a judicially created Bivens remedy. See Chilicky, 487

U.S. at 423. We see no indication that Congress

“inadvertently” omitted remedies excluded from this remedial

scheme or otherwise intended for the courts to take it upon

themselves to extend additional remedies. See Spagnola, 859

F.2d at 228. Accordingly, judicial recognition of a Bivens

remedy is not appropriate in light of the existence of this

“comprehensive remedial scheme.” See Wilson, 535 F.3d at

705. Other courts to consider this question similarly have held

that the extensive remedies for disputes arising from

government contracts preclude a Bivens action in this arena.

See M.E.S., Inc. v. Snell, 712 F.3d 666, 672 (2d Cir. 2013)

(rejecting Bivens remedy where “plaintiff’s constitutional

claims originate in contract obligations for which the

comprehensive procedural and substantive provisions of the

[Contract Disputes Act] afford meaningful – and exclusive –

remedies against the United States”); Evers v. Astrue, 536 F.3d

651, 659 (7th Cir. 2008) (no Bivens remedy for denied renewal

of contract and rejection of other bids); Janicki Logging Co. v.

Mateer, 42 F.3d 561, 565 (9th Cir. 1994) (no Bivens action for

cancellation of contract); see also Atterbury v. U.S. Marshals

Serv., 805 F.3d 398, 404 (2d Cir. 2015) (no Bivens remedy for

subcontractor due to Contract Disputes Act, applying special

factors analysis).

Of course, it may not always be the case that the particular

nature of the constitutional harm that a contractor alleges is

sufficiently connected to the contracting relationship between

the contractor and the government such that this particular

remedial scheme precludes judicial recognition of a Bivens

remedy – in fact, Liff’s allegations about potentially rights-

implicating statements by the Bivens Defendants arguably

present one such example, discussed below. Cf. Evers, 536

F.3d at 659 (explaining the “closer case” where government

17

officials “defamed [the contractor] by making negative false

statements to third parties,” which may allege a claim sounding

in tort). We do not pass upon other hypotheticals. But as to

Liff’s alleged injuries related to his ability to successfully bid

for and secure government contracts, the congressionally

created system for government-contract adjudication precludes

judicial extension of further remedies.

B.

As noted, Liff’s allegations do not all fit tidily within the

contract-related statutes and regulations that preclude his

Bivens action. Beyond Liff’s assertion that he is now unable to

obtain government contracts, Liff also alleges that reputational

damage from the reports of which he complains has impeded

his career in private contracting. Liff’s allegations that

government officials disseminated information that harmed

Liff’s reputation find an alternative remedy in the Privacy Act,

which precludes his requested Bivens remedy.

The Privacy Act “regulate[s] the collection, maintenance,

use, and dissemination of information by [Federal] agencies.”

Doe v. Chao, 540 U.S. 614, 618 (2004) (quoting the Privacy

Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 88 Stat. 1896). The

Act requires that agencies “maintain . . . only such information

about an individual as is relevant and necessary” for agency

purposes, 5 U.S.C. § 552a(e)(1), including “all records which

are used by the agency in making any determination about any

individual.” Id. § 552a(e)(5). Agencies also must “make

reasonable efforts to assure that [records about an individual]

are accurate, complete, timely, and relevant for agency

purposes,” before the agency “disseminat[es]” such records.

Id. § 552a(e)(6). The Privacy Act provides a statutory right for

a person to review the contents of government records about

them and seek correction “of any portion thereof which the

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individual believes is not accurate, relevant, timely, or

complete.” See id. § 552a(d). An individual can sue in federal

court if an agency denies their request to review records or

fails to maintain any record concerning any individual

with such accuracy, relevance, timeliness, and

completeness as is necessary to assure fairness in any

determination relating to the qualifications, character,

rights, or opportunities of, or benefits to the individual

that may be made on the basis of such record, and

consequently a determination is made which is adverse

to the individual.

Id. § 552a(g)(1). The Privacy Act also offers relief for some

claims based on the government’s information that is not

“within a system of records.” McCready v. Nicholson, 465

F.3d 1, 11 (D.C. Cir. 2006) (quotation marks omitted).

McCready illustrates that the Privacy Act encompasses

misstatements contained in a disparaging Inspector General’s

report and associated agency documents. Id. at 11-14. The

Privacy Act also applies when an “adverse determination ‘is

made’” by the agency that maintained the flawed record or by

an outside actor. See Dickson v. Office of Pers. Mgmt., 828

F.2d 32, 36-37 (D.C. Cir. 1987). Injunctive relief and monetary

damages are available. 5 U.S.C. § 552a(g)(2) & (4).

This Court and others have recognized the Privacy Act as

an alternative remedial scheme precluding a Bivens remedy in

other contexts. In Wilson v. Libby, for example, which

Defendant-Appellants cited before the District Court and rely

upon on appeal, this Court concluded that the Privacy Act

constitutes a legislated remedy, blocking a Bivens action over

the improper disclosure by government officers of the identity

of CIA operative Valerie Plame, which hindered her career.

535 F.3d at 709. See also Chung v. U.S. Dep’t of Justice, 333

19

F.3d 273, 274 (D.C. Cir. 2003) (affirming the dismissal of

Bivens action based on leaks of private information by

government officials because those claims were “encompassed

within the remedial scheme of the Privacy Act”). Likewise, in

Abdelfattah v. U.S. Department of Homeland Security, we

affirmed that the Privacy Act precluded a Bivens action

challenging the collection and maintenance of intelligence

information in a Department of Homeland Security database.

787 F.3d 524, 534 (D.C. Cir. 2015). While the Abdelfattah

plaintiff could seek expungement as equitable relief for

violations of the Constitution, as well as the Privacy Act, the

Court denied the availability of a Bivens damages claim arising

from the same constitutional claims. Id. at 534-35. The Sixth

Circuit has similarly held that the Privacy Act’s “meaningful

remedy” for claims arising from government records precludes

a Bivens remedy, Downie v. City of Middleburg Heights, 301

F.3d 688, 696 (6th Cir. 2002), and the Fourth Circuit has

suggested the same. See Chesser v. Chesser, 600 F. App’x 900,

901 (4th Cir. 2015) (citing Wilson, 525 F.3d 697, and Downie,

301 F.3d 688).

Liff argues scattershot that the Privacy Act cannot

preclude a Bivens remedy because, he asserts, the record is

undeveloped about whether there are records about him to

which the Privacy Act applies; his claims “go far beyond a

mere ‘disclosure’ of record information”; he could not

challenge his OPM debarment under the Privacy Act; the

Privacy Act does not deter individual government officials; and

only individuals, not corporations, can sue under the Privacy

Act. These arguments all boil down to one: the Privacy Act

does not provide a complete remedy for the injury Liff alleges.

Even assuming these limitations, Liff’s position is

unpersuasive. As described above, it makes no difference in

our Bivens inquiry whether the remedy that Congress has

provided is complete in the sense that it makes a party whole

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for the injury asserted. Our prior cases rejecting a Bivens

remedy in light of the Privacy Act confirm this principle. See

Wilson, 535 F.3d at 707 (although “three defendants in this case

are exempted,” “[t]he failure of the Privacy Act to provide

complete relief . . . does not undermine its status as a

‘comprehensive scheme’ that stops us from providing

additional remedies under Bivens”); Griffin v. Ashcroft, No. 02-

5399, 2003 WL 22097940, at *1 (D.C. Cir. Sept. 3, 2003) (no

Bivens remedy despite regulation providing that “inmate

records systems are exempt from the [Privacy Act’s]

amendment provision”). The Privacy Act represents

Congress’s legislative judgment about the appropriate

remedies with respect to the accuracy, fairness, and use of

government information, and the judicial system is not in a

position to revise that scheme by recognizing an additional

constitutional remedy for that kind of claim.

We accordingly conclude, as we have before, that the

Privacy Act inhibits the availability of a Bivens remedy with

respect to the information about Liff in the reports and public

statements on which he bases his claim.

IV.

Defendant-Appellants assert that the District Court erred

in denying their qualified-immunity defenses. Because we

have determined that Liff has no viable Bivens action against

Defendant-Appellants, we need not consider their qualified-

immunity defenses. See, e.g., Doe, 683 F.3d at 397.

Conclusion

For the forgoing reasons, we reverse the District Court’s

denial of the Bivens Defendants’ motion to dismiss.