71 F.4th 1181
9th Cir.2023Background
- Harper, a former BLM law-enforcement ranger in Idaho, was interviewed by a DOI OIG agent about alleged sexual-harassment texts; after initially denying the conduct he later conceded receiving joking sexual animations.
- The OIG interview led to a finding of "lack of candor;" BLM HR advisor Graham recommended suspension then removal; BLM imposed a 14-day suspension and permanently reassigned Harper to non‑law‑enforcement duties.
- Harper administratively appealed: an internal investigator found no credible evidence for lack of candor; DOI human-resources review concluded BLM followed appropriate procedures; Harper’s MSPB appeal was rejected for lack of jurisdiction.
- Harper later had a tentative offer for a law-enforcement position rescinded and alleged Nedd (Deputy Director) and Graham blocked his rehiring; he applied elsewhere without success.
- Harper sued Nedd and Graham under Bivens alleging a Fifth Amendment due-process violation and sought damages; the district court declined to dismiss and denied qualified immunity; defendants appealed the Bivens/qualified-immunity threshold question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harper may sue federal supervisors for money damages under Bivens for a Fifth Amendment due-process violation | Davis controls; a damages remedy should be implied for Harper’s due-process claim | Bivens should not be extended to this new context; no implied remedy | No — Bivens not extended; Harper has no damages claim |
| Whether this case presents a "new context" under Bivens/Davis | Facts arise under the Fifth Amendment like Davis, so not new | Different category of defendants (BLM execs) and different legal setting (Executive Branch employment) — so new | New context — different defendants and legal mandate than Davis |
| Whether the Civil Service Reform Act (CSRA) and other administrative remedies preclude a Bivens remedy | Alleged ultra vires conduct corrupted CSRA process so Bivens still available | CSRA and Executive remedies are alternative remedial scheme; Congress is better suited to provide damages | CSRA/administrative scheme displaces Bivens; Congress/Executive are better suited to decide remedies |
| Whether court should resolve qualified immunity at this stage | N/A (plaintiff seeks to proceed) | Qualified-immunity defense was raised but depends on existence of Bivens cause | Court declined to reach qualified immunity because Bivens claim is foreclosed |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of implied Fourth Amendment damages remedy)
- Davis v. Passman, 442 U.S. 228 (implying Bivens remedy for Fifth Amendment gender-discrimination claim)
- Carlson v. Green, 446 U.S. 14 (Eighth Amendment Bivens action for inadequate medical care)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (two-step framework and caution against expanding Bivens)
- Hernandez v. Mesa, 140 S. Ct. 735 (application of the Ziglar framework to cross-border shooting claim)
- Egbert v. Boule, 142 S. Ct. 1793 (recent clarification that courts should not extend Bivens when Congress is better suited to provide a remedy)
- Wilkie v. Robbins, 551 U.S. 537 (refusal to extend Bivens in the context of executive-branch regulatory action)
- Pettibone v. Russell, 59 F.4th 449 (9th Cir.) (refusing to extend Bivens where officer rank and official duties differed from Bivens)
- Mejia v. Miller, 61 F.4th 663 (9th Cir.) (post-Egbert decline to expand Bivens to BLM context)
- Saul v. United States, 928 F.2d 829 (9th Cir. 1991) (CSRA’s comprehensive remedial provisions foreclose Bivens damages against supervisors)