Western Radio Services Co. v. Usfs ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN RADIO SERVICES CO.; 
RICHARD L. OBERDORFER,
Plaintiffs-Appellants,
No. 08-35186
v.
UNITED STATES FOREST SERVICE;  D.C. No.
04-CV-01346-AA
LARRY TIMCHAK; JIM MCMILLIN;
OPINION
BOB ROCK; KRISTEN BAIL; JIM
SAUSER; DIANA HSIEH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
May 7, 2009—Portland, Oregon
Filed August 21, 2009
Before: William A. Fletcher, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
11485
11488 WESTERN RADIO SERVICES v. USFS
COUNSEL
Marianne Dugan, Eugene, Oregon, for the plaintiff-appellants.
Kevin Danielson, Portland, Oregon, for the defendants-
appellees.
OPINION
IKUTA, Circuit Judge:
Richard Oberdorfer and his company, Western Radio Ser-
vices (collectively, “Western”), brought an action against the
United States Forest Service and six of its officers under
Bivens v. Six Unknown Named Agents of the Bureau of Nar-
cotics, 403 U.S. 388 (1971),1 and the Administrative Proce-
1
Bivens was the first Supreme Court decision authorizing plaintiffs to
bring claims for money damages against individual federal officials based
on constitutional violations where no federal statute authorized such a suit;
courts have subsequently referred to these as “Bivens claims.”
WESTERN RADIO SERVICES v. USFS 11489
dure Act (APA), Pub. L. 79-404, 60 Stat. 237 (1946). The dis-
trict court dismissed the APA claims as moot and granted the
government’s motion for summary judgment on the Bivens
claims, holding that the APA provided an adequate alternative
remedy which foreclosed a remedy under Bivens. Western
appeals only the dismissal of the Bivens claims. We agree
with the district court that the APA provides Western an ade-
quate alternative remedy, and we affirm.
I
Because this appeal comes to us from the grant of a motion
for summary judgment, we relate the facts in the light most
favorable to Western. See Nolan v. Heald Coll., 551 F.3d
1148, 1150 (9th Cir. 2009).
Gray Butte is an 80-acre area within the Ochoco National
Forest in central Oregon. The Forest Service leases various
sites in the area to electronic communications companies,
including Western and two other companies, Slater Commu-
nications and Electronics and Day Wireless Systems. Each
lease agreement incorporates by reference the terms of the
Forest Service’s Gray Butte Electronic Site Management
Plan, which “establish[es] a guide for the land manager to
base decisions concerning the development of the site in con-
formance with” ten stated environmental objectives.
Western first constructed radio towers on Gray Butte in
1978, and it maintained good relations with the Forest Service
for the first five years of its operations there. In 1986, West-
ern began bringing administrative appeals of various Forest
Service decisions. In 1993, Western filed several lawsuits
challenging Forest Service permit and leasing decisions. After
Western began challenging Forest Service decisions, it experi-
enced unfavorable treatment from the Forest Service, includ-
ing unexplained delays in processing its applications and
rejections of its applications. On January 3, 1991, Western
applied to the Forest Service for permission to place addi-
11490 WESTERN RADIO SERVICES v. USFS
tional antennae on Gray Butte. Slater Communications
objected, and Western submitted a revised application. Years
later, in 1998, the Forest Service denied Western’s applica-
tion. Western appealed this denial, and in 1999 the Forest Ser-
vice withdrew its denial and took Western’s application back
under consideration. More years passed, and in 2002 and
2003, Western pressed Forest Service officials to take action
on its still-pending 1991 application. Between 2003 and 2007,
there were communications between Western and various
Forest Service officers, with the Forest Service continuing to
request additional documents and clarifications and adding
new procedural requirements to Western’s application.
While Western was attempting to secure permission to
install its side-hill antennae, Western also complained to the
Forest Service regarding problems it was having with other
Gray Butte lessees. In August 2000, Western informed a For-
est Service officer that Slater Communications was not in
compliance with the Site Plan, and that Slater Communica-
tions “would not allow inspection” by Western. Although
Western believed other lessees operated equipment that did
not “meet the technical standards” required by the applicable
regulations and the Site Plan, Western was unable to specify
the nature of the lessees’ noncompliance because Western
was unable to conduct its own inspection of the lessees’ sites.
In August 2002, the Forest Service began the process of
scheduling an inspection of Gray Butte. In response, Western
again raised complaints about other lessees’ noncompliance
with the Site Plan. Western also asked the Forest Service to
appoint representatives of other Gray Butte lessees, including
Western, to the inspection team. In September 2002, the For-
est Service inspected all three facilities at Gray Butte, but did
not include lessees on its inspection team. The Forest Service
found only minor deficiencies at Slater Communications and
Day Wireless. Following this inspection, Western continued
to send emails to the Forest Service accusing other lessees of
noncompliance and demanding enforcement of the Site Plan.
WESTERN RADIO SERVICES v. USFS 11491
On September 22, 2004, Western brought claims against
the Forest Service and the individual defendants under Bivens
and the APA, alleging that the defendants failed to stop other
lessees’ noncompliance with the Site Plan, failed to allow
Western to conduct site inspections of other lessees’ facilities,
and delayed taking action on Western’s application to install
the two additional “side-hill” antennae on Gray Butte. West-
ern claimed that these delays and inactions violated the First
Amendment (by treating Western unfavorably in retaliation
for its prior litigation against the Forest Service), the Fifth
Amendment (by treating Western less favorably than the other
lessees without a rational basis), and the APA (by unlawfully
withholding or unreasonably delaying administrative action).
In January 2006, Western submitted a revised application
seeking permission to construct four additional microwave
antennae on the side-hill locations. The Forest Service pre-
pared an environmental assessment for the proposal, and, on
September 4, 2007, issued an administrative decision allow-
ing Western to build two of the four proposed antennae. The
district court then dismissed Western’s APA inaction claims
as moot because the agency had acted. The court also granted
the defendants’ motion for summary judgment on Western’s
Bivens claims, holding that the APA provided an adequate
alternative remedy to a Bivens action.
Western appeals only the grant of summary judgment on
his Bivens claims. Our review is de novo. See Nolan, 551 F.3d
at 1150.
II
[1] At the outset, we note that the Supreme Court has held
that no Bivens remedy is available against a federal agency,
see FDIC v. Meyer, 510 U.S. 471, 484 (1994), and on that
ground we affirm the district court’s dismissal of Western’s
Bivens claims against the Forest Service itself. We therefore
turn to whether the circumstances of this case require us to
11492 WESTERN RADIO SERVICES v. USFS
recognize an implied right of action under Bivens against the
individual Forest Service officers for their alleged violations
of Western’s constitutional rights.
A
[2] In Bivens, the Supreme Court “recognized for the first
time an implied private action for damages against federal
officers alleged to have violated a citizen’s constitutional
rights.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Spe-
cifically, the Court in Bivens allowed a plaintiff to bring a
damages action in federal court against individual federal offi-
cials for violating the Fourth Amendment, despite the absence
of any federal statute authorizing such an action. See Bivens,
403 U.S. at 397. Within the next few years, the Supreme
Court extended Bivens in two additional cases where the
Court concluded an implied right of action for money dam-
ages was consistent with congressional intent. In Davis v.
Passman, the Court permitted a political appointee to bring a
sex-discrimination claim against a congressman, despite the
absence of such a remedy in Title VII of the Civil Rights Act
of 1964, because there was no evidence that Congress
intended to prevent political appointees from seeking relief
under a judicially created remedy. 442 U.S. 228, 247 (1979).
Similarly, in Carlson v. Green, the Court allowed a prisoner’s
action against prison officials for failure to provide proper
medical attention in violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment, notwith-
standing the availability of a remedy under the Federal Tort
Claims Act (FTCA), because there was evidence that Con-
gress did not intend the FTCA to be a substitute for recovery
under Bivens. 446 U.S. 14, 20 (1980).
[3] Since Carlson, however, the Supreme Court has “con-
sistently refused to extend Bivens liability to any new context
or new category of defendants.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001). The Court has focused
increased scrutiny on whether Congress intended the courts to
WESTERN RADIO SERVICES v. USFS 11493
devise a new Bivens remedy, and in every decision since Car-
lson, across a variety of factual and legal contexts, the answer
has been “no.” See, e.g., Chappell v. Wallace, 462 U.S. 296,
297 (1983) (declining to allow an implied right of action for
military personnel who allegedly suffered racial discrimina-
tion at the hands of their superior officers); Bush v. Lucas,
462 U.S. 367, 368 (1983) (declining to allow an implied right
of action for a federal civil-service employee who allegedly
suffered unconstitutional employment actions); Schweiker v.
Chilicky, 487 U.S. 412, 425 (1988) (declining to allow an
implied right of action for disabled persons who were alleg-
edly denied Social Security disability benefits in violation of
their due process rights); Wilkie v. Robbins, 551 U.S. 537,
561-62 (2007) (declining to allow an implied right of action
for a landowner who allegedly suffered harassment and intim-
idation by federal officials in violation of his rights under the
Fourth and Fifth Amendments).
[4] In Wilkie, the Court distilled its 35-year history of
Bivens jurisprudence into a two-step analysis for determining
congressional intent as to the appropriateness of a Bivens rem-
edy. See id. at 550. First, the Court determines whether there
is “any alternative, existing process for protecting” the plain-
tiff ’s interests. Id. Such an alternative remedy would raise the
inference that Congress “expected the Judiciary to stay its
Bivens hand” and “refrain from providing a new and free-
standing remedy in damages.” Id. at 550, 554. The Court has
explained that, “[w]hen the design of a Government program
suggests that Congress has provided what it considers ade-
quate remedial mechanisms for constitutional violations that
may occur in the course of its administration, we have not cre-
ated additional Bivens remedies.” Chilicky, 487 U.S. at 423;
see also Castaneda v. United States, 546 F.3d 682, 701 (9th
Cir. 2008). Accordingly, the Court has refrained from creating
a judicially implied remedy even when the available statutory
remedies “do not provide complete relief” for a plaintiff that
has suffered a constitutional violation. Corr. Servs. Corp., 534
U.S. at 69 (quoting Bush, 462 U.S. at 388). “So long as the
11494 WESTERN RADIO SERVICES v. USFS
plaintiff ha[s] an avenue for some redress, bedrock principles
of separation of powers foreclose[s] judicial imposition of a
new substantive liability.” Id.We have interpreted these cases as holding that, “[s]o long
as Congress’ failure to provide money damages, or other sig-
nificant relief, has not been inadvertent, courts should defer to
its judgment.” Berry v. Hollander, 925 F.2d 311, 314 (9th Cir.
1991) (internal quotation marks omitted); accord Adams v.
Johnson, 355 F.3d 1179, 1185 n.3 (9th Cir. 2004) (explaining
that the adequate alternative remedy “need not be perfectly
comprehensive”). In Chilicky, for example, the Court declined
to create a Bivens action for recovery of money damages for
“emotional distress and for loss of food, shelter and other
necessities” caused by the wrongful denial of Social Security
benefits. 487 U.S. at 419, 426. The Court reasoned that the
existence of a comprehensive and elaborate remedial scheme
for wrongly withheld Social Security disability benefits
evinced a “congressional unwillingness to provide consequen-
tial damages for unconstitutional deprivations” of those bene-
fits. Because Congress “provide[d] meaningful safeguards or
remedies” for the plaintiffs, and because “personal liability
for official acts” would “undoubtedly lead to new difficulties
and expense in recruiting administrators for the programs
Congress has established,” the Court held that Congress had
implicitly foreclosed a Bivens remedy even though it had not
provided complete relief to the plaintiffs. Id. at 425.
[5] Second, if the Court cannot infer that Congress intended
a statutory remedial scheme to take the place of a judge-made
remedy, the Court next asks whether there nevertheless are
“factors counseling hesitation” before devising such an
implied right of action. Wilkie, 551 U.S. at 550. Even where
Congress has given plaintiffs no damages remedy for a consti-
tutional violation, the Court has declined to create a right of
action under Bivens when doing so “would be plainly incon-
sistent with Congress’ authority in this field.” Chappell, 462
U.S. at 304. In Chappell, for example, enlisted military per-
WESTERN RADIO SERVICES v. USFS 11495
sonnel had no damages remedy of any kind against their supe-
riors for constitutional violations, but the Court nevertheless
declined to create a damages remedy under Bivens. 462 U.S.
at 301. The Court explained that “the unique disciplinary
structure of the Military Establishment and Congress’ activity
in the field constitute ‘special factors’ which dictate that it
would be inappropriate to provide enlisted military personnel
a Bivens-type remedy against their superior officers.” Id. at
304.
The Court also found “special factors counselling hesita-
tion” in Wilkie, and accordingly declined to create a Bivens
remedy. 551 U.S. at 550. In Wilkie, a ranch owner claimed
that officers of the Bureau of Land Management tried to
coerce him into granting the federal government an easement
over his land. The ranch owner alleged that Bureau officials
trespassed on his property; broke into his lodge and left trash
inside; videotaped his vacationing clients from a hilltop while
they “sought privacy to relieve themselves”; revoked the graz-
ing permit and special-use permit that allowed him to “run
guest cattle drives”; levied fines against him for trespassing
on federal land; convinced the local United States Attorney’s
office to bring a meritless criminal prosecution against him;
and tried to convince the local sheriff to impound his cattle.
Id. at 542-47. The ranch owner therefore brought Bivens
claims against the officers, alleging that they violated his
Fourth and Fifth Amendment rights by “retaliating against the
exercise of [his] ownership rights.” Id. at 549.
In the first step of its Bivens analysis, the Court examined
whether there was “any alternative, existing process” avail-
able to the ranch owner, and broke his claims “into four main
groups: torts or tort-like injuries inflicted on him, charges
brought against him, unfavorable agency actions, and offen-
sive behavior by Bureau employees falling outside those three
categories.” Id. at 551. Addressing the criminal charges, the
Court concluded that, “[f]or each charge,” the plaintiff “had
some procedure to defend and make good on his position . . .
11496 WESTERN RADIO SERVICES v. USFS
although he had mixed success, he had the means to be
heard.” Id. at 552. Addressing the unfavorable agency actions,
the Court concluded that, “[f]or each claim, administrative
review was available, subject to ultimate judicial review
under the APA.” Id. The Court further concluded that the
plaintiff had some type of remedy in tort for the alleged tres-
passes and vandalism, though noting some uncertainty as to
whether a remedy was available against the officers’ vid-
eotaping of his guests. Id. at 553. In sum, the Court concluded
that the plaintiff had “an administrative, and ultimately a judi-
cial, process for vindicating virtually all of his complaints.”
Id.Nonetheless, the Court held that the case could not be dis-
posed of at step one of its Bivens analysis because “the
forums of defense and redress” were “a patchwork, an assem-
blage of state and federal, administrative and judicial benches
applying regulations, statutes and common law rules.” Id. at
554. Thus, the Court stated, “[i]t would be hard to infer that
Congress expected the Judiciary to stay its Bivens hand, but
equally hard to extract any clear lesson that Bivens ought to
spawn a new claim.” Id. The Court therefore concluded that
Wilkie was a case “for Bivens step two, for weighing reasons
for and against the creation of a new cause of action, the way
common law judges have always done.” Id. The Court
explained that it must “make the kind of remedial determina-
tion that is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors counseling
hesitation before authorizing a new kind of federal litigation.”
Id. at 550 (quoting Bush, 462 U.S. at 378).
In the second step of this two-step analysis, the Court noted
that the plaintiff ’s allegation amounted to the claim that the
officers had pushed too hard on the government’s behalf, and
the Court reasoned that it would be too difficult to draw a line
between “legitimately hard bargaining” and “illegitimate pres-
sure.” Id. at 562. In light of the “serious difficulty of devising
a workable cause of action,” the Court concluded that “a gen-
WESTERN RADIO SERVICES v. USFS 11497
eral Bivens cure would be worse than the disease,” and there-
fore held that the plaintiffs had no implied right of action for
damages under Bivens. Id. at 561.
B
Applying Wilkie’s two-step analysis to this case, we begin
by asking whether the existence of “any alternative, existing
process” available to Western, or other indication of Congres-
sional intent, raises the inference that Congress “expected the
Judiciary to stay its Bivens hand.” Id. at 550, 554.
[6] At the outset, we note that Wilkie itself gave us a strong
indication that the APA constitutes an “alternative, existing
process” for Western’s damages claims based on agency
actions and inactions. The Court in Wilkie observed that the
ranch owner had an adequate remedy for the “unfavorable
agency actions,” because, “[f]or each [such] claim, adminis-
trative review was available, subject to ultimate judicial
review under the APA.” Id. at 552.2 Wilkie moved on to step
two because the plaintiff had only a patchwork of different
remedies for addressing the other, non-administrative claims.
Id. at 554.
[7] Although Wilkie does not explain in detail how it deter-
mined that the APA was an adequate alternative remedy for
unfavorable agency actions, our own consideration of the
APA leads to the same conclusion. The APA expressly
declares itself to be a comprehensive remedial scheme: it
states that a “person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial
2
The specific final agency actions in Wilkie were the Bureau’s cancella-
tion of the ranch owner’s right-of-way, its decision to reduce the length
of the special recreational use permit from five years to one and subse-
quent termination of that permit, and its revocation of his cattle-grazing
permit. Id. at 552-53.
11498 WESTERN RADIO SERVICES v. USFS
review,” 5 U.S.C. § 702, and then sets forth the procedures for
such review, see id. §§ 704, 706. “The APA’s comprehensive
provisions . . . allow any person ‘adversely affected or
aggrieved’ by agency action to obtain judicial review thereof,
so long as the decision challenged represents a ‘final agency
action for which there is no other adequate remedy in a
court.’ ” Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting
5 U.S.C. §§ 701-06). Specifically, the APA authorizes a
reviewing court to:
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action, find-
ings, and conclusions found to be . . . (A) arbitrary,
capricious, an abuse of discretion, or otherwise not
in accordance with law; [or] (B) contrary to constitu-
tional right, power, privilege, or immunity . . . .
5 U.S.C. § 706(1)-(2); see also Darby v. Cisneros, 509 U.S.
137, 143-47 (1993) (discussing the provisions and structure of
the judicial-review sections of the APA). Like the “adminis-
trative structure and procedures of the Social Security system”
at issue in Chilicky, the APA is vast in scope and affects “vir-
tually every American.” 487 U.S. at 424. Indeed, the APA is,
by its nature, broader in scope than the Social Security sys-
tem: absent some statutory or other exception, the APA’s
“comprehensive provisions” provide the backup or default
remedies for all interactions between individuals and all fed-
eral agencies, not just the Social Security Administration. 5
U.S.C. §§ 702, 704; Webster, 486 U.S. at 599. The fact that
APA’s procedures are available where no other adequate
alternative remedy exists further indicates Congress’s intent
that courts should not devise additional, judicially crafted
default remedies. See 5 U.S.C. § 704.
The APA does not provide for monetary damages, though
it does allow “specific relief,” including the payment of
WESTERN RADIO SERVICES v. USFS 11499
money to which a plaintiff is entitled. Bowen v. Massachu-
setts, 487 U.S. 879, 895 (1988). Nor does the APA allow
claims against individuals or provide a right to a trial by jury.
Both the Supreme Court and this court have concluded, how-
ever, that remedial schemes lacking such features may be ade-
quate alternatives, provided that the absence of such
procedural protections was not inadvertent on the part of Con-
gress. See Chilicky, 487 U.S. at 424-25; Libas Ltd. v. Carillo,
329 F.3d 1128, 1129 (9th Cir. 2003) (holding that no Bivens
remedy was available where a statutory scheme allowed
importers to challenge customs agents’ erroneous assessments
of import duties but did not provide for consequential dam-
ages or a right of action against the individual agents); Janicki
Logging Co. v. Mateer, 42 F.3d 561, 564-65 (9th Cir. 1994)
(holding that the Contract Dispute Act provided an adequate
alternative remedy to a Bivens action, even though it did not
provide for damages claims against individual officers or the
right to a jury trial).
[8] In sum, the design of the APA raises the inference that
Congress “expected the Judiciary to stay its Bivens hand” and
provides “a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in
damages,” Wilkie, 551 U.S. at 550, 554, notwithstanding the
unavailability of money damages against individual officers
or the right to a jury trial. With respect to agency action and
inaction, we conclude that Congress “has considered the uni-
verse of harms that could be committed in the program’s
administration and has provided what Congress believes to be
adequate remedies.” Adams, 355 F.3d at 1185. We therefore
conclude that the APA leaves no room for Bivens claims
based on agency action or inaction.
C
This conclusion resolves Western’s claims. Western alleges
that the individual defendants were responsible for the Forest
Service’s denial of Western’s application to place additional
11500 WESTERN RADIO SERVICES v. USFS
radio antennae on Gray Butte and its failure to take adminis-
trative action against other site lessees when it was required
by the Site Plan to do so. Provided Western complied with the
APA’s procedural requirements, see 5 U.S.C. § 704, such
agency actions and inactions could be challenged under the
APA, see id. at § 706(1)-(2); see also Wilkie, 551 U.S. at 552;
Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977,
979, 983-84 (9th Cir. 2006) (reviewing Forest Service action
under the APA). In light of Congress’s provision of an ade-
quate statutory remedial scheme, and because Congress could
reasonably conclude that limitations on the available remedies
were appropriate in this context, we conclude that Western
cannot maintain its Bivens claims against the individual
defendants for causing the Forest Service’s alleged actions
and inactions.
Western does not dispute that it has alternative remedies
under the APA; it did, after all, bring APA claims against the
Forest Service in this case. But Western raises several argu-
ments as to why we should nevertheless allow it an implied
right of action.
First, Western points to our decision in Castaneda, where
we followed the Supreme Court’s precedent in Carlson and
held that the FTCA did not preclude a Bivens action for a pris-
oner alleging violations of his Eighth Amendment rights by
prison officials. See 546 F.3d at 688. We noted various defi-
ciencies in the FTCA’s remedial scheme, and Western argues
that Carlson and Castaneda are controlling because the APA
has the same deficiencies. We disagree. In analyzing whether
the FTCA was an inadequate alternative remedy, Castaneda
mentioned the unavailability of monetary damages against
individuals and lack of a right to a jury trial. Id. at 689-90. But
as we have already explained, the case law of the Supreme
Court and this court makes clear that a remedial scheme may
be adequate even if it does not include these elements. See
Chilicky, 487 U.S. at 424-25, Libas Ltd., 329 F.3d at 1129.
Castaneda’s decision to allow a Bivens claim in the Eighth
WESTERN RADIO SERVICES v. USFS 11501
Amendment context was thus driven primarily by a unique
deficiency in the FTCA: its authorization of only those
actions allowed by “the law of the place where the act or
omission occurred.” Id. at 690. As we explained:
[T]he remedies we and the Supreme Court have held
to preclude Bivens were deliberately crafted by Con-
gress and applied uniformly throughout the republic.
We are aware of no case holding a remedial scheme
that is entirely parasitic on state law to be a substi-
tute for a Bivens remedy.
Castaneda, 546 F.3d at 690. No such concern is present with
the APA, a freestanding federal statute that applies uniformly
throughout the country. Because the APA’s remedial scheme
does not share the FTCA’s lack of uniformity, Castaneda is
not controlling.
Second, Western cites Carlson’s analysis of congressional
intent. In Carlson, the Court concluded that Congress did not
intend for the FTCA to be a substitute for Bivens because the
FTCA had already been enacted when Bivens was decided.
Moreover, Carlson noted that a post-Bivens amendment to the
FTCA did not include a statement of congressional intent to
create a substitute for Bivens. Western points to the fact that
the APA, like the FTCA, predated Bivens, and that Congress
similarly failed to address Bivens in a post-Bivens amendment
to the APA. According to Western, this legislative history
compels the inference that Congress did not intend the APA
to be a substitute for Bivens.
Again, we disagree. Carlson did not rely only on congres-
sional silence in post-Bivens amendments to the FTCA;
rather, Carlson noted that “the congressional comments
accompanying that amendment made it crystal clear that Con-
gress views FTCA and Bivens as parallel, complementary
causes of action.” 446 U.S. at 19-20 (emphasis added). The
Court quoted legislative history expressly stating that the
11502 WESTERN RADIO SERVICES v. USFS
FTCA “should be viewed as a counterpart to the Bivens case.”
Id. at 20 (quoting S. Rep. No. 93-588, p. 3 (1973)). Western
points to no similar indications of congressional intent with
respect to the APA. Both the Supreme Court and this court
have often declined to create Bivens actions to supplement
statutory remedies, even in situations where Congress gave no
affirmative indication that it intended to preclude judge-made
relief. See, e.g., Chilicky, 487 U.S. at 425-26; Bush, 462 U.S.
at 378; Adams, 355 F.3d at 1185; Libas Ltd., 329 F.3d at
1129; Janicki Logging, 42 F.3d at 564-65; Berry, 925 F.2d at
315-16. Congress’s silence in post-Bivens amendments to the
APA does not raise the inference that it intended to allow an
implied right of action.
Finally, Western argues that Wilkie is distinguishable from
this case because here the individual defendants’ alleged mis-
deeds were the result of illegitimate motives. Western claims
that the individual officers’ misdeeds were based on an illegit-
imate desire to retaliate against Western for exercising its
First Amendment right to petition the government for redress
of grievances and to discriminate against Western without a
rational basis. In Wilkie, by contrast, the Court refrained from
creating a Bivens remedy due to concerns about the “difficulty
in defining a workable cause of action” against government
employees for overzealous conduct based on legitimate moti-
vations. 551 U.S. at 555-56 (“[U]nlike punishing someone for
speaking out against the Government, trying to induce some-
one to grant an easement for public use is a perfectly legiti-
mate purpose.”). Because such “line-drawing difficulties” are
not present here, id. at 557, Western argues that Wilkie does
not prevent us from allowing it a right of action under Bivens.
Western’s argument misunderstands Wilkie, which consid-
ered the defendants’ legitimate motives at the second stage of
its two-step inquiry. In step one of the analysis, the Court con-
cluded that the alternative remedies available to the plaintiff
were “a patchwork” and therefore inadequate. Id. at 554. The
Court then moved on to “Bivens step two,” in which it consid-
WESTERN RADIO SERVICES v. USFS 11503
ered whether there were “special factors counselling hesita-
tion before authorizing a new kind of federal litigation” and
“weigh[ed] reasons for and against the creation of a new
cause of action.” Id. at 550, 554. Only at step two did the
Court consider the legitimacy of the defendants’ motives. In
the present case, our analysis ends at step one: we have deter-
mined that the APA is an adequate alternative remedy for
Western’s claims, and we therefore have no need to “weigh[ ]
reasons for and against the creation of a new cause of action.”
Wilkie, 551 U.S. at 554.
III
[9] Because Western’s claims against the individual defen-
dants are based on Forest Service actions or inactions, we
conclude that the remedies available to Western under the
APA constitute an “alternative, existing process” that
“amounts to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in
damages.” Id. at 550. Western’s alternative remedies under
the APA, although not perfectly comprehensive, are adequate.
Id. at 543; Adams, 355 F.3d at 1185 n.3. This conclusion ends
our two-step Bivens analysis, and so we need not determine
whether a Bivens right of action is applicable to a claim alleg-
ing a violation of the First Amendment. See Iqbal, 129 S. Ct.
at 1948 (noting prior decision refusing to extend Bivens to
First Amendment claims, but declining to reach the issue).
AFFIRMED.
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