Harper v. Department of Interior, 571 F.Supp.3d 1147

Background

Harper, a BLM law‑enforcement ranger, was interviewed by OIG about a separate sexual‑harassment matter; months later BLM issued a Proposal and Eggers Decision finding he lacked candor, suspending him 14 days and reassigning him to a non‑LEO role.
Harper submitted written and oral responses and appealed to the MSPB (appeal dismissed for lack of jurisdiction after BLM issued a second reassignment letter); he then filed an internal BLM grievance.
Investigator Hedrick issued a preliminary report exonerating Harper and criticizing agency ethics; Deputy Director Nedd then assumed jurisdiction, halted Hedrick’s work, denied the grievance, and the DOI denied Harper’s subsequent appeal.
Harper later had a tentative LEO job offer rescinded after agency officials (Nedd, Graham) allegedly intervened; Harper sued asserting (1) Bivens due‑process claim; (2) defamation per se; (3) negligent supervision; and (4) negligent training.
Defendants moved to dismiss arguing CSRA preemption of Bivens, FTCA exhaustion and statutory exclusions for torts, failure to state claims, and qualified immunity. The court denied dismissal of the Bivens and defamation claims, and dismissed negligent supervision and negligent training without prejudice (FTCA claims dismissed for lack of FTCA exhaustion).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bivens damages/action is preempted by the CSRA	Harper: defendants took unauthorized, ultra vires actions to corrupt CSRA remedies; this deprived him of the CSRA process and is not a CSRA "personnel action" precluding Bivens	Defs: CSRA provides exclusive remedy for personnel actions so Bivens is preempted	Court: denied dismissal — alleged ultra vires interference with CSRA remedies supports a Bivens claim (equitable relief available under §1331 too)
Qualified immunity for individual defendants (Graham, Nedd)	Harper: alleges deprivation of clearly established Fifth Amendment due‑process rights	Defs: actions were routine personnel decisions; reasonable officers would not know conduct was unlawful	Court: denied dismissal — right to due process was clearly established and alleged facts plausibly show a reasonable official would know the actions were unlawful
FTCA jurisdiction/exhaustion for negligent supervision/training and other torts	Harper: DOI Appeal presented same facts and exhausted administrative remedies	Defs: DOI Appeal did not comply with FTCA presentation rules (no SF‑95 or a sum‑certain demand)	Court: FTCA claims dismissed for lack of jurisdiction — plaintiff failed to present a sum‑certain administrative claim; negligent supervision/training dismissed without prejudice
Defamation per se and FTCA exclusion	Harper: sues Graham and Nedd individually, alleges false statements (lack of candor) harming his profession — alleges they acted outside scope of employment	Defs: defamation excluded from FTCA (§2680(h)); thus no waiver of sovereign immunity	Court: denied dismissal as to defamation per se against Graham and Nedd in their individual capacities; FTCA exclusion not fatal where individuals sued and Westfall certification not invoked; other defamation claims dismissed

Key Cases Cited

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of implied damages remedy against federal officers for Fourth Amendment violations)
Davis v. Passman, 442 U.S. 228 (recognition of Bivens‑type remedy for Fifth Amendment claims)
Carlson v. Green, 446 U.S. 14 (Bivens remedy recognized under Eighth Amendment)
Butz v. Economou, 438 U.S. 478 (Bivens as a means to seek damages for constitutional injuries by federal officials)
Bush v. Lucas, 462 U.S. 367 (CSRA can preclude Bivens where statutory scheme supplies a comprehensive remedial structure)
Schweiker v. Chilicky, 487 U.S. 412 (Bivens unavailable where Congress provided remedial scheme suggesting intentional omission of damages remedy)
Ziglar v. Abbasi, 137 S. Ct. 1843 (extensions of Bivens are disfavored; courts must consider alternative remedies and special factors)
Wilkie v. Robbins, 551 U.S. 537 (two‑part test for recognizing new Bivens context — alternatives and special factors)
Webster v. Doe, 486 U.S. 592 (statutory preclusion of judicial review requires clear Congressional intent)
American Fed'n of Gov't Emps. Loc. 1 v. Stone, 502 F.3d 1027 (9th Cir.) (CSRA does not necessarily bar equitable constitutional relief)
Mathews v. Eldridge, 424 U.S. 319 (framework for assessing due‑process protections)