881 F.3d 912
D.C. Cir.2018Background
- Stewart Liff, a longtime federal HR consultant, alleges DOL-OIG and OPM reports (and related public statements) falsely disparaged him, leading to lost government contracts and reputational harm to his business.
- DOL-OIG issued a report in July 2011; that report and subsequent DOL and OPM public statements were published and widely publicized, including by the Washington Post.
- Liff claims the reports contained false characterizations and that DOL Deputy Secretary Seth Harris and OPM Director John Berry (and acting DOL IG Daniel Petrole) publicly acted on those reports without giving Liff notice or an opportunity to respond.
- Liff sued individually and through his firm, asserting a Bivens damages claim for violation of his Fifth Amendment due-process rights (loss of liberty interest to pursue his profession), among other claims; he sought money damages and other relief.
- The district court denied the defendants’ motion to dismiss the Bivens claims and rejected qualified-immunity at that stage, but declined to decide Bivens availability; defendants appealed interlocutorily.
- The D.C. Circuit reversed: it held the court should decide Bivens availability as a threshold matter and concluded no Bivens remedy was available because Congress provided alternative, comprehensive remedial schemes (contracting remedies and the Privacy Act).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of a Bivens remedy for reputational/de facto debarment claims | Liff: constitutional due-process injury from false government reports warrants Bivens damages | Defs: Congress provided adequate alternative remedies (contracting statutes, Privacy Act); courts should not create Bivens extension | No Bivens remedy: alternative statutory schemes (contract remedies; Privacy Act) preclude Bivens extension |
| Whether the district court should decide Bivens availability at motion-to-dismiss stage | Liff: premature before factual development on due-process violation | Defs: Bivens availability is an antecedent legal question suitable for early decision | Bivens availability is a threshold legal question to be decided early; the court may decide it before merits/qual. immunity |
| Applicability of contracting remedial schemes to plaintiff's lost-contract injuries | Liff: his claim is not purely a contract action and seeks broader relief | Defs: Tucker Act, procurement protest system, Contract Disputes Act, FAR collectively provide meaningful remedies for contracting-related harms | Court: Contract-related statutes provide alternative remedies for lost-bid/contract harms and counsel against Bivens remedy |
| Whether the Privacy Act bars Bivens for dissemination/maintenance of inaccurate agency records | Liff: Privacy Act may not fully address his claims (record system, corporate plaintiff limits, gaps) | Defs: Privacy Act regulates collection/accuracy/dissemination of agency records and provides review, amendment, and damages; thus it is an adequate remedy | Court: Privacy Act constitutes a comprehensive remedial scheme that precludes a Bivens damages action for these information-dissemination claims |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (establishing implied damages remedy for certain constitutional violations)
- Ashcroft v. Iqbal, 556 U.S. 662 (recognizing collateral-order posture for qualified-immunity appeals and Bivens context)
- Wilkie v. Robbins, 551 U.S. 537 (courts must consider alternative remedies and special factors before extending Bivens)
- Minneci v. Pollard, 565 U.S. 118 (availability of alternative process can preclude Bivens)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (courts should be cautious extending Bivens and consider special factors)
- Bush v. Lucas, 462 U.S. 367 (declining Bivens where comprehensive statutory remedies exist)
- Schweiker v. Chilicky, 487 U.S. 412 (withholding Bivens when Congress provided comprehensive remedial scheme)
- Wilson v. Libby, 535 F.3d 697 (D.C. Cir.: Privacy Act precluded Bivens for disclosure harm)
- Davis v. Billington, 681 F.3d 377 (D.C. Cir. standard: accept well-pleaded allegations on motion to dismiss)
- Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524 (D.C. Cir.: Privacy Act precludes Bivens for information-maintenance claims)