David Harper v. Michael Nedd

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.