Atterbury v. United States Marshals Service, 805 F.3d 398

Atterbury was employed by Akal Security as a Court Security Officer (CSO) under a USMS contract that reserved USMS sole discretion to remove CSOs from the Court Security Program and incorporated detailed CSO Performance Standards.
Akal’s collective bargaining agreement (CBA) guaranteed that non‑probationary employees would not be disciplined or terminated without just cause, but stated that if USMS removed a CSO, Akal could terminate employment “without recourse” to CBA procedures.
Atterbury left his post feeling ill after notifying an acting lead CSO; Akal’s investigation initially found no violation, but USMS directed further inquiry and then removed him from the program for undermining confidence in his ability to perform duties.
Akal allowed Atterbury to submit a written response but did not tell him what conduct triggered removal; USMS denied his appeal and Akal terminated his employment.
Atterbury sued, asserting (1) a Bivens (Fifth Amendment Due Process) claim for money damages against USMS officials and (2) an APA claim challenging USMS’s removal as arbitrary and capricious; the district court dismissed the Bivens claim and held it lacked subject‑matter jurisdiction over the APA claim.
The Second Circuit affirmed dismissal of the Bivens claim but vacated the dismissal of the APA claim, holding the district court did have APA jurisdiction and remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Bivens remedy is available for Atterbury’s alleged deprivation of a property interest in continued CSO employment	Atterbury argued Bivens should extend because he was left without any meaningful statutory remedy for the deprivation of his property interest	Defendants argued alternative remedial schemes (CDA/CSRA) and other special factors counsel hesitation; CDA/CSRA preclude extending Bivens here	Court: Declined to recognize a new Bivens remedy; special factors (comprehensive statutory schemes and Congressional design decisions) foreclose Bivens extension
Whether the district court has APA jurisdiction to review USMS’s removal (or whether the Tucker Act bars the claim as essentially a contract action)	Atterbury argued his claim rests on a property interest created by the CBA and the Due Process Clause—an independent, non‑contractual source—so APA jurisdiction lies	Defendants argued the claim arises from Akal’s contract with USMS and thus falls within the Tucker Act/Court of Federal Claims exclusivity	Court: Claim is not essentially a Tucker Act contract action; source of rights is the CBA/Due Process Clause, so APA jurisdiction exists; Tucker Act does not bar the APA suit

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (recognition of an implied damages action under the Constitution)
Wilkie v. Robbins, 551 U.S. 537 (test for extending Bivens: availability of alternative processes and special factors counseling hesitation)
Carlson v. Green, 446 U.S. 14 (limited extension of Bivens outside Fourth Amendment context)
M.E.S., Inc. v. Snell, 712 F.3d 666 (2d Cir. 2013) (CDA as comprehensive remedial scheme that can preclude Bivens claims for contractors)
Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (CSRA as exclusive remedial scheme barring Bivens for federal employees)
Up State Fed. Credit Union v. Walker, 198 F.3d 372 (2d Cir. 1999) (Tucker Act may impliedly forbid APA relief for contract‑based claims)
Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982) (two‑prong test for distinguishing Tucker Act contract actions from APA actions)
Stein v. Bd. of the City of New York, 792 F.2d 13 (2d Cir. 1986) (collective bargaining agreement can create a constitutionally protected property interest in continued employment)