Liff v. Office of Inspector General for U.S. Department of Labor , 881 F.3d 912 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 2017 Decided February 6, 2018
No. 16-5045
STEWART LIFF AND STEWART LIFF & ASSOCIATES, INC.,
APPELLEES
v.
OFFICE OF INSPECTOR GENERAL FOR THE U.S. DEPARTMENT
OF LABOR, ET AL.,
APPELLEES
DANIEL PETROLE, FORMER INSPECTOR GENERAL OF THE
OFFICE OF THE INSPECTOR GENERAL FOR THE U.S.
DEPARTMENT OF LABOR, IN HIS INDIVIDUAL AND/OR OFFICIAL
CAPACITIES, ET AL.,
APPELLANTS
Consolidated with 16-5370
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cv-01162)
Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs was
2
Michael S. Raab, Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Paul Y. Kiyonaga argued the cause and filed the briefs for
plaintiffs-appellees.
Before: GARLAND, Chief Judge, and PILLARD and
WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Stewart Liff runs a human
resources consulting business that contracts with various
government and private clients – or he did, he alleges, prior to
the reputational injury caused by scurrilous reports from the
Office of Inspector General for the Department of Labor
(“DOL-OIG”) and the Office of Personnel Management
(“OPM”), disseminated by government officials and publicized
by the Washington Post. Liff, individually and through his
consulting business, Stewart Liff & Associates, Inc., sued
DOL, DOL-OIG and OPM alleging violations of his due
process rights and the Administrative Procedure Act. Liff
asserted a claim for damages under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), alleging that individual officers – acting DOL Inspector
General Daniel Petrole, DOL Deputy Secretary Seth Harris,
and OPM Director John Berry (collectively, “the Bivens
Defendants” or “Defendant-Appellants”), as well as two
unknown agents – violated his constitutional rights under the
Due Process Clause of the Fifth Amendment by issuing
erroneous reports that damaged Liff’s reputation, barred him
from future government contracts, and deprived him of his
liberty interest in pursuing his chosen profession.
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Defendants filed a motion to dismiss, in which Defendant-
Appellants Petrole, Harris, and Berry moved to dismiss Liff’s
Bivens claim on the basis that alternative remedies were
available to protect his constitutional interest and on qualified-
immunity grounds, arguing that they had violated no clearly
established constitutional right. The District Court denied the
motion as to the Bivens Defendants, reasoning that it was
“premature” to decide whether a Bivens remedy was available
and rejecting Defendant-Appellants’ assertion of qualified
immunity. The agencies and the Bivens Defendants sought
reconsideration of other aspects of the District Court’s
decision. The Bivens Defendants then appealed the District
Court’s initial decision on the motion to dismiss, asserting that
it was error not to decide the availability of a Bivens remedy
and that they were entitled to qualified immunity.
We reverse. The District Court should have decided the
availability of a Bivens remedy as a threshold question gating
whether the Bivens Defendants must defend against this suit in
their personal capacities. Reviewing that question of law
directly, we conclude that no Bivens remedy is available for
Liff’s claims. Congress has provided significant remedies for
disputes between contractors and the government entities that
engage them, as well as for persons aggrieved by the
government’s collection, maintenance, and dissemination of
information. In light of these alternative remedies and the
comprehensive remedial schemes they represent, we decline to
extend a Bivens remedy for Liff’s claims.
Background
We accept as true the well-pleaded allegations of the
Complaint for the purpose of this appeal, as did the District
Court. See Davis v. Billington, 681 F.3d 377, 379 (D.C. Cir.
2012); Wilson v. Libby, 535 F.3d 697, 701 (D.C. Cir. 2008).
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Liff is a “nationally-recognized consultant . . . on human
resources management issues.” Compl. I. After retiring from
a career in the Department of Veterans Affairs (“VA”), Liff
opened a consulting firm called Stewart Liff & Associates and
began providing training and resources on management issues
for various government entities. His clients included the VA,
the Departments of Labor, Defense, Agriculture, and Treasury,
OPM, the State of Georgia, and the World Bank. Compl.
¶¶ 15-16. Some 90% of Liff’s consulting and training work
was for federal agencies. Compl. ¶ 18.
In 2009, Liff was hired as a subcontractor to provide
consulting services to the Department of Labor Veterans’
Employment and Training Service (“DOL-VETS”), after
Assistant Secretary of Labor Ray Jefferson directed agency
contracting staff to look into procuring Liff’s services. Compl.
¶¶ 20-22. Liff alleges that Jefferson requested that DOL-VETS
staff Angela Freeman and Paul Briggs “determine whether Liff
could be hired to provide consulting services, in accordance
with the law and applicable ethical principles.” Compl. ¶ 21.
DOL-VETS eventually hired Liff as a subcontractor through
contractors For Your Information, Inc. and MSTI, Inc. Compl.
¶¶ 22-23. Liff’s work for DOL-VETS included three
“management assessment reports” on topics including
“program development methods and processes,” union
relations, “visual management strategies at DOL-VETS to
boost employee performance,” and ways to improve the
tracking and evaluation of agency programs. See Compl.
¶¶ 26-29.
The events giving rise to Liff’s claim begin with “an
expanded version of the first management assessment report”
suggesting changes to the DOL-VETS office. Compl.
¶¶ 32-33. Following complaints from DOL-VETS employees
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Freeman and Briggs about Liff’s report, DOL-OIG began an
investigation into Liff’s services. Under acting Inspector
General Petrole, DOL-OIG issued a report in July 2011, which
concluded that DOL-VETS improperly hired Liff under
pressure from Jefferson. Compl. ¶ 38. The DOL-OIG report
bore a banner stating that “[the report] and its contents are not
to be distributed outside of [the] agency.” Compl. ¶ 39
(emphasis omitted). However, the report eventually was
posted publicly on the internet, and the Washington Post
published an article in which “Liff was a central focus.”
Compl. ¶¶ 39, 45. Liff alleges that the report and related
publicity included “blatant misstatements and false
characterizations,” including about Liff’s relationship with
Jefferson, about Liff’s timekeeping practices, that one of Liff’s
“key roles . . . was that of a quasi interior designer ‘picking
colors,’” that Liff was paid some $700,000 for his consulting
work, and that Liff worked on a “secret report” for Jefferson,
“thereby suggesting that Liff had engaged in illicit, unethical
activities.” Compl. ¶ 42.
After this information became public, Deputy Secretary
Seth Harris issued a memorandum which “prais[ed] DOL-OIG
for its report and set[] forth concrete follow-up actions”
including a “vow[]” to “‘aggressively pursue’ Liff for ‘all valid
causes of action.’” Compl. ¶ 48. Liff “was not apprised of
these specific allegations” before Harris issued the
memorandum and “thus did not have an opportunity to
meaningfully respond.” Id. Like the DOL-OIG report,
Harris’s memorandum was posted online. Id.
Liff also worked with OPM. In July 2011, Liff learned
that the Office of the Inspector General for OPM (“OPM-
OIG”) “had initiated an investigation into how Liff’s services
as a subcontractor to OPM . . . had been arranged.” Compl.
¶ 47. In August 2011, OPM “terminat[ed] the task order under
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which Liff was providing human resources management
consulting,” for which Liff expected to be paid an outstanding
amount of “approximately $350,000.” Id. Liff did not receive
“any prior notice” of this termination “or opportunity to
meaningfully address” the underlying “negative
characterizations of [his] work.” Id.
In early 2012, Liff participated in an interview with an
OPM-OIG special agent. Compl. ¶ 49. Liff understood this
interview to be part of an investigation in which he would be a
witness. Id. On April 2, 2013, OPM-OIG issued a report which
“posited, without adequate support, that Liff’s services may
have been ‘wasteful’ of taxpayer resources as proper
procurement procedures for his services had not been used.”
Id. The next week, OPM Director Berry made public
statements disclaiming any future use of Liff’s services. In
particular, Berry wrote a publicly released letter to OPM-OIG
that stated that “he had taken steps to ‘ensure that OPM
immediately concluded any business involving Stewart Liff &
Associates, Inc.’” Compl. ¶ 50. Berry also commented in a
press conference that OPM would not use Liff’s consulting
services again. Because OPM “provides consulting services
through interagency agreements to some 150 other federal
agencies and entities,” OPM’s decision not to use Liff’s
services “contributed significantly to a broad preclusion of Liff
from future government consulting opportunities.” Id.
Liff alleges that the actions of DOL-OIG, OPM, and the
individual government officers involved have “broadly
precluded” him “from securing work in the federal sector as a
consultant or teacher” and that “many of [his] contacts in
government – key sources of potential work or referrals –
stopped returning his calls.” Compl. ¶ 52. In addition, he
“submitted competitive bids on a variety of government
contracts . . . but with one exception, has not been selected for
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any project.” Id. He has “attempted since July 2011 to ‘re-
brand’ himself as a human resources expert for private
companies, to little effect,” purportedly because of the
deleterious information publicly available as a result of the
DOL-OIG and OPM reports. Compl. ¶ 55.
Procedural History
The Bivens Defendants moved to dismiss the complaint,
arguing that there was no Bivens remedy for the reputational
harm that Liff alleged, that alternative remedies enacted by
Congress precluded judicial recognition of a Bivens remedy,
and that recognizing a Bivens action in this context would chill
speech by government officials. They also asserted a qualified-
immunity defense, contending that the alleged actions violated
no clearly established constitutional right. In addition,
Defendants argued that Liff’s constitutional claims were
untimely, as the analogous District of Columbia statute of
limitations had expired.
The District Court denied the motion as to the Bivens
Defendants. The District Court noted the argument that no
Bivens remedy was available, but declined to decide the issue,
explaining that it would await factual development because it
“appear[ed] both ill advised and premature to pronounce on the
availability of a Bivens remedy before deciding the threshold
question of whether a due-process violation ha[d] transpired.”
Liff v. Office of the Inspector Gen. for the U.S. Dep’t of Labor,
156 F. Supp. 3d 1, 18-19 (D.D.C. 2016). Turning to the
qualified-immunity issue, the District Court concluded that
Liff’s complaint sufficiently alleged that actions taken by
Harris, Petrole, and Berry interfered with Liff’s right to pursue
his chosen profession, both through de facto debarment from
contracting with OPM, as effected by Berry, and through the
“broad effect” of Harris’s and Petrole’s actions with respect to
8
the DOL-OIG report. Id. at 19-20. The District Court then
found that the right was “sufficiently clear” to defeat the Bivens
Defendants’ qualified-immunity defense at the motion-to-
dismiss stage. Id. at 21.
Defendants moved for, and were granted, reconsideration
on the statute-of-limitations question, which the District Court
had declined to decide in the first instance. Defendants did not
seek reconsideration with respect to the Bivens and qualified-
immunity issues. Instead, the Bivens Defendants appealed
those holdings for our interlocutory review.
Discussion
I.
Defendant-Appellants seek this Court’s review of the
District Court’s denial of their motion to dismiss on qualified-
immunity grounds. The collateral-order doctrine permits
immediate appellate review of “a limited set of district-court
orders” that “finally determine claims of right separable from,
and collateral to, rights asserted in the action, too important to
be denied review and too independent of the cause itself” to
justify delay. Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)
(quotation marks and citation omitted). A district court’s
denial of a qualified-immunity claim is one such exception
“because qualified immunity . . . is both a defense to liability
and a limited ‘entitlement not to stand trial or face the other
burdens of litigation.’” Id. at 672 (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). Because the “defense of qualified
immunity from a Bivens damages action directly implicates the
antecedent question whether to recognize that Bivens action at
all,” Davis, 681 F.3d at 380 (quotation marks omitted), that
question is appropriate for interlocutory appeal. See Iqbal, 556
U.S. at 673 (explaining the collateral-order posture of the
9
Bivens issue in Wilkie v. Robbins, 551 U.S. 537 (2007)); Doe
v. Rumsfeld, 683 F.3d 390, 393 (D.C. Cir. 2012).
We review de novo the District Court’s legal conclusions
denying a motion to dismiss. Davis, 681 F.3d at 380. “[W]e,
like the district court, accept as true the well-pleaded factual
allegations of the complaint.” Id. at 379.
II.
We begin with the availability of a Bivens remedy. The
District Court declined to rule on this question; however, it is
appropriate to determine the availability of a Bivens remedy at
the earliest practicable phase of litigation because it is
“‘antecedent’ to the other questions presented,” Hernandez v.
Mesa, 137 S. Ct. 2003, 2006 (2017).
In considering the availability of a Bivens remedy, we first
look for “an ‘alternative, existing process’ capable of
protecting the constitutional interests at stake.” Minneci v.
Pollard, 565 U.S. 118, 125 (2012) (citing Wilkie, 551 U.S. at
550); Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017) (noting
that “an alternative remedial structure . . . alone may limit the
power of the Judiciary to infer a new Bivens cause of action”).
“[A] remedial statute need not provide full relief” to prompt
judicial deference because the touchstone is “who should
decide whether such a remedy should be provided.” Wilson,
535 F.3d at 705 (quoting Bush v. Lucas, 462 U.S. 367 (1983)).
“The answer most often will be Congress,” Ziglar, 137 S. Ct.
at 1857, and “[w]hen the design of a [remedial scheme]
suggests that Congress has provided what it considers adequate
remedial mechanisms for constitutional violations,” courts
decline to create additional remedies. Schweiker v. Chilicky,
487 U.S. 412, 423 (1988); see also Spagnola v. Mathis, 859
F.2d 223, 228 (D.C. Cir. 1988) (explaining that “courts must
10
withhold their power to fashion damages remedies when
Congress has put in place a comprehensive system to
administer public rights, has ‘not inadvertently’ omitted
damages remedies for certain claimants, and has not plainly
expressed an intention that the courts preserve Bivens
remedies”).
Under this rationale, the Supreme Court has declined to
extend Bivens where Congress has provided at least a partial
remedy via statute, see Bush, 462 U.S. at 388 (federal
employment law); Chilicky, 487 U.S. at 424 (Social Security);
Wilkie, 551 U.S. at 550 (various statutes), as well as where
other causes of action provide redress, see Minneci, 565 U.S.
at 120 (state tort law); Ziglar, 137 S. Ct. at 1865 (habeas or
other equitable relief). Cf. Bivens, 403 U.S. at 394 (“The
interests protected by state laws regulating trespass and the
invasion of privacy, and those protected by the Fourth
Amendment’s guarantee against unreasonable searches and
seizures, may be inconsistent or even hostile.”). This Court
itself has recognized alternative remedial schemes precluding
Bivens actions in the context of the Civil Service Reform Act,
Title VII of the Civil Rights Act of 1964, the Freedom of
Information Act, the Veterans’ Judicial Review Act, and the
Privacy Act. See Wilson, 535 F.3d at 706 (collecting cases).
Where no alternative remedy is available, courts exercise
judgment regarding the propriety of extending a judicial
remedy, “paying particular heed . . . to any special factors
counselling hesitation before authorizing a new kind of federal
litigation.” Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at
378). Courts must conduct a “special factors” analysis when
considering “new” Bivens remedies – that is, Bivens claims in
cases with “meaningful enough” differences from previously
recognized contexts, see Ziglar, 137 S. Ct. at 1859.
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III.
Defendant-Appellants assert that many and various
statutes and regulations provide alternative remedies that block
Liff’s Bivens action. Before considering the substance of those
remedies, we first address whether we should evaluate the full
scope of alternatives as presented in this appeal. Liff argues
that Defendant-Appellants’ reliance on the Privacy Act, among
other remedial statutes, was not argued before the District
Court and therefore is not properly presented.
“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (citation omitted).
This rule embodies the principle that litigants should not be
surprised by a decision without having had an opportunity to
address the issue being decided. Id. However, courts of
appeals have discretion to resolve issues not raised in or
decided by the district court, as may be justified by the facts of
individual cases. Id. at 121. This Court has exercised this
discretion in various “exceptional cases or particular
circumstances,” including where the issue presents “a novel,
important, and recurring question of federal law,” or where the
new argument relates to a threshold question such as the clear
inapplicability of a statute. See Lesesne v. Doe, 712 F.3d 584,
588 (D.C. Cir. 2013) (citation omitted). The Court also has
found it appropriate to resolve issues not raised in the district
court where the case “involves a straightforward legal question,
and both parties have fully addressed the issue on appeal.”
Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir.
2010); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d
416, 419 n.5 (D.C. Cir. 1992) (exercising discretion to address
an issue first raised on appeal because “the issue is purely one
of law important in the administration of federal justice, and
resolution of the issue does not depend on any additional facts
12
not considered by the district court”). For example, in Lesesne
v. Doe, the Court interpreted on appeal whether the Prison
Litigation Reform Act’s exhaustion requirement applied to
certain claims, “a dispositive legal issue antecedent to [the
statute’s] application.” Lesesne, 712 F.3d at 588. In Prime
Time International Co. v. Vilsack, the Court reversed the
district court’s grant of summary judgment, concluding that a
legal issue raised for the first time on appeal was a dispositive
defense. Prime Time, 599 F.3d at 686. In appropriate
circumstances, this approach avoids unnecessary expenditure
of judicial resources and expedites final resolution of the
parties’ dispute.
Even assuming that Defendant-Appellants did not identify
below some of the specific remedial mechanisms advanced
here, we exercise our discretion to consider those arguments.
The question of the availability of a Bivens remedy in light of
the broader statutory scheme is an issue of law, and the parties
have addressed it extensively in their briefing before this Court.
Our de novo review of the District Court’s decision
underscores this point: the parties had every incentive to put
their best foot forward with respect to all legal issues presented
on appeal, given that we would start anew in evaluating their
arguments and deciding the law – and they did so. We note
also that the posture of this issue defeats the usual forfeiture
analysis. While Defendant-Appellants did not extensively
argue below the full breadth of alternative statutory schemes
that they now advance, the additional bases upon which they
now rely further the argument that they did put forward: claims
like Liff’s are covered by other remedial systems that Congress
has implemented, which block a Bivens action regardless of
whether they are adequate to provide all of the relief he seeks.
In that sense, the additional statutory bases asserted here
constitute further support of Defendant-Appellants’ argument
below. See Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007)
13
(invocation on appeal of regulatory basis for previously
asserted argument did not raise new issue). With respect to the
Privacy Act argument in particular – where Liff most
vociferously asserts forfeiture – we note that Defendant-
Appellants cited Wilson v. Libby in their brief on the motion to
dismiss for the proposition that “the existence of a
comprehensive statutory scheme addressing the subject matter
of the lawsuit” is a special factor that “frequently precludes a
Bivens remedy.” See Liff v. Office of the Inspector Gen. for the
U.S. Dep’t of Labor, Mot. to Dismiss, ECF No. 17 (May 11,
2015); JA73. If nothing else, that precedent denying a Bivens
remedy in light of the Privacy Act indicated the Act’s
relevance.
We turn now to the various remedies that Defendant-
Appellants argue preclude a Bivens remedy. The constellation
of statutes and regulations governing federal contracts, as well
as the Privacy Act, provide a remedy for Liff’s claims. And, to
the extent that these statutes leave gaps in the remedies
available to Liff, the presence of significant legislated remedies
in this arena counsels against the recognition of a judicially
created Bivens remedy.
A.
Many of Liff’s asserted harms relate to his purported
inability to obtain government contracts – at least, his inability
to obtain contracts as frequently as he used to, as Liff has won
at least one bid since the events upon which he bases his
Complaint. Defendant-Appellants identify myriad statutes and
regulations that provide remedies for contracting-related
disputes, which they allege would encompass many of Liff’s
asserted harms. These include the Tucker Act, which provides
a cause of action in the Court of Federal Claims and in district
courts for an interested party to object to an agency’s
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solicitation of bids or proposed award or award of a contract
for “any relief that the court considers proper,” 28 U.S.C.
§ 1491(b); the Federal Acquisition Regulation, which
establishes procedures for agency procurement protests, 48
C.F.R. § 33.103; the procurement protest system, which offers
mechanisms by which a losing bidder may protest the award of
a contract in violation of a statute or regulation, 31 U.S.C.
§ 3551 et seq.; and the Contract Disputes Act, which enables
contractors to submit a claim to a federal contracting officer
regarding disputes over the administration of a current contract,
41 U.S.C. § 7103. These provisions each provide some nature
of remedy for government contractors aggrieved by contracting
decisions and administration.
We do not parse the specific applicability of this web of
contracting-related remedies in Liff’s circumstances, but
instead note the spectrum of remedies they provide. Some, like
the Contract Disputes Act, relate to contracts already
underway, while others, like the Tucker Act, provide for
challenges at earlier stages of government contracting,
including when an agency first determines to solicit bids for a
project. They also provide remedies for reputational
debarment claims like Liff’s, to the extent that official findings
or reports are relied upon in later government contracting
decisions. For example, in NCL Logistics Co. v. United States,
a would-be contractor brought a Tucker Act claim after being
rejected for a contract due to a finding that it was
“nonresponsible” – that is, that the contractor had an
inadequate record of performance. 109 Fed. Cl. 596 (Fed. Cl.
2013). The court considered the contractor’s challenge to the
responsibility determination as based on flawed assumptions
and incomplete evidence, as the finding precluded the
contractor from winning the contract. Id. at 622-26. Similarly
here, if contracting entities relied on the DOL-OIG and OPM
15
reports to deny Liff’s bids for contracts, he could have
challenged that reliance under the contracting statutes.
Liff rejects these various remedies as inapt, as he “is not
making a bid protest, contesting a contract award or
challenging the administration of a contract,” see Appellee’s
Br. 29 – all claims he does not deny could be brought under
these various contract-related provisions. But it makes no
difference, for the purpose of our analysis and the availability
of a Bivens remedy, that Liff has framed claims that “are
manifestly not contract actions,” id. at 30. Cf. A & S Council
Oil Co., Inc. v. Lader, 56 F.3d 234, 241 (D.C. Cir. 1995)
(evaluating applicability of government contracting statutes
and noting that “plaintiffs’ claim that the wrong originated in
some statutory violation does not strip the case of its
contractual character”). Clearly, Liff alleges injury outside of
what may arise in contract: his asserted damages, for instance,
go beyond the contracts that he claims he lost as a result of his
alleged reputational harm. It is equally clear, however, that lost
contracts are an inherent piece of the bigger picture. Liff
himself alleges as much, including in his Bivens claim his loss
of “his legitimate expectation of income from the OPM task
orders/contract,” for example. Compl. ¶ 82. Moreover, if Liff
lost no contracts – if business continued as usual for Liff and
his consulting firm – he presumably would not have brought
this suit. But assuming as true Liff’s allegations that he did in
fact lose contracts, as we must at this phase in the litigation,
these contracting statutes and regulations provide him recourse
with respect to those losses.
It also makes no difference if the contract-based remedies
would not provide a full remedy for Liff. The question is
whether alternative remedies exist, not whether they cover the
full breadth of harm that a would-be Bivens plaintiff alleges.
Even if gaps remain in the overlapping and extensive
16
contracting remedies, Congress’s activity in this area counsels
against a judicially created Bivens remedy. See Chilicky, 487
U.S. at 423. We see no indication that Congress
“inadvertently” omitted remedies excluded from this remedial
scheme or otherwise intended for the courts to take it upon
themselves to extend additional remedies. See Spagnola, 859
F.2d at 228. Accordingly, judicial recognition of a Bivens
remedy is not appropriate in light of the existence of this
“comprehensive remedial scheme.” See Wilson, 535 F.3d at
705. Other courts to consider this question similarly have held
that the extensive remedies for disputes arising from
government contracts preclude a Bivens action in this arena.
See M.E.S., Inc. v. Snell, 712 F.3d 666, 672 (2d Cir. 2013)
(rejecting Bivens remedy where “plaintiff’s constitutional
claims originate in contract obligations for which the
comprehensive procedural and substantive provisions of the
[Contract Disputes Act] afford meaningful – and exclusive –
remedies against the United States”); Evers v. Astrue, 536 F.3d
651, 659 (7th Cir. 2008) (no Bivens remedy for denied renewal
of contract and rejection of other bids); Janicki Logging Co. v.
Mateer, 42 F.3d 561, 565 (9th Cir. 1994) (no Bivens action for
cancellation of contract); see also Atterbury v. U.S. Marshals
Serv., 805 F.3d 398, 404 (2d Cir. 2015) (no Bivens remedy for
subcontractor due to Contract Disputes Act, applying special
factors analysis).
Of course, it may not always be the case that the particular
nature of the constitutional harm that a contractor alleges is
sufficiently connected to the contracting relationship between
the contractor and the government such that this particular
remedial scheme precludes judicial recognition of a Bivens
remedy – in fact, Liff’s allegations about potentially rights-
implicating statements by the Bivens Defendants arguably
present one such example, discussed below. Cf. Evers, 536
F.3d at 659 (explaining the “closer case” where government
17
officials “defamed [the contractor] by making negative false
statements to third parties,” which may allege a claim sounding
in tort). We do not pass upon other hypotheticals. But as to
Liff’s alleged injuries related to his ability to successfully bid
for and secure government contracts, the congressionally
created system for government-contract adjudication precludes
judicial extension of further remedies.
B.
As noted, Liff’s allegations do not all fit tidily within the
contract-related statutes and regulations that preclude his
Bivens action. Beyond Liff’s assertion that he is now unable to
obtain government contracts, Liff also alleges that reputational
damage from the reports of which he complains has impeded
his career in private contracting. Liff’s allegations that
government officials disseminated information that harmed
Liff’s reputation find an alternative remedy in the Privacy Act,
which precludes his requested Bivens remedy.
The Privacy Act “regulate[s] the collection, maintenance,
use, and dissemination of information by [Federal] agencies.”
Doe v. Chao, 540 U.S. 614, 618 (2004) (quoting the Privacy
Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 88 Stat. 1896). The
Act requires that agencies “maintain . . . only such information
about an individual as is relevant and necessary” for agency
purposes, 5 U.S.C. § 552a(e)(1), including “all records which
are used by the agency in making any determination about any
individual.” Id. § 552a(e)(5). Agencies also must “make
reasonable efforts to assure that [records about an individual]
are accurate, complete, timely, and relevant for agency
purposes,” before the agency “disseminat[es]” such records.
Id. § 552a(e)(6). The Privacy Act provides a statutory right for
a person to review the contents of government records about
them and seek correction “of any portion thereof which the
18
individual believes is not accurate, relevant, timely, or
complete.” See id. § 552a(d). An individual can sue in federal
court if an agency denies their request to review records or
fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and
completeness as is necessary to assure fairness in any
determination relating to the qualifications, character,
rights, or opportunities of, or benefits to the individual
that may be made on the basis of such record, and
consequently a determination is made which is adverse
to the individual.
Id. § 552a(g)(1). The Privacy Act also offers relief for some
claims based on the government’s information that is not
“within a system of records.” McCready v. Nicholson, 465
F.3d 1, 11 (D.C. Cir. 2006) (quotation marks omitted).
McCready illustrates that the Privacy Act encompasses
misstatements contained in a disparaging Inspector General’s
report and associated agency documents. Id. at 11-14. The
Privacy Act also applies when an “adverse determination ‘is
made’” by the agency that maintained the flawed record or by
an outside actor. See Dickson v. Office of Pers. Mgmt., 828
F.2d 32, 36-37 (D.C. Cir. 1987). Injunctive relief and monetary
damages are available. 5 U.S.C. § 552a(g)(2) & (4).
This Court and others have recognized the Privacy Act as
an alternative remedial scheme precluding a Bivens remedy in
other contexts. In Wilson v. Libby, for example, which
Defendant-Appellants cited before the District Court and rely
upon on appeal, this Court concluded that the Privacy Act
constitutes a legislated remedy, blocking a Bivens action over
the improper disclosure by government officers of the identity
of CIA operative Valerie Plame, which hindered her career.
535 F.3d at 709. See also Chung v. U.S. Dep’t of Justice, 333
19
F.3d 273, 274 (D.C. Cir. 2003) (affirming the dismissal of
Bivens action based on leaks of private information by
government officials because those claims were “encompassed
within the remedial scheme of the Privacy Act”). Likewise, in
Abdelfattah v. U.S. Department of Homeland Security, we
affirmed that the Privacy Act precluded a Bivens action
challenging the collection and maintenance of intelligence
information in a Department of Homeland Security database.
787 F.3d 524, 534 (D.C. Cir. 2015). While the Abdelfattah
plaintiff could seek expungement as equitable relief for
violations of the Constitution, as well as the Privacy Act, the
Court denied the availability of a Bivens damages claim arising
from the same constitutional claims. Id. at 534-35. The Sixth
Circuit has similarly held that the Privacy Act’s “meaningful
remedy” for claims arising from government records precludes
a Bivens remedy, Downie v. City of Middleburg Heights, 301
F.3d 688, 696 (6th Cir. 2002), and the Fourth Circuit has
suggested the same. See Chesser v. Chesser, 600 F. App’x 900,
901 (4th Cir. 2015) (citing Wilson, 525 F.3d 697, and Downie,
301 F.3d 688).
Liff argues scattershot that the Privacy Act cannot
preclude a Bivens remedy because, he asserts, the record is
undeveloped about whether there are records about him to
which the Privacy Act applies; his claims “go far beyond a
mere ‘disclosure’ of record information”; he could not
challenge his OPM debarment under the Privacy Act; the
Privacy Act does not deter individual government officials; and
only individuals, not corporations, can sue under the Privacy
Act. These arguments all boil down to one: the Privacy Act
does not provide a complete remedy for the injury Liff alleges.
Even assuming these limitations, Liff’s position is
unpersuasive. As described above, it makes no difference in
our Bivens inquiry whether the remedy that Congress has
provided is complete in the sense that it makes a party whole
20
for the injury asserted. Our prior cases rejecting a Bivens
remedy in light of the Privacy Act confirm this principle. See
Wilson, 535 F.3d at 707 (although “three defendants in this case
are exempted,” “[t]he failure of the Privacy Act to provide
complete relief . . . does not undermine its status as a
‘comprehensive scheme’ that stops us from providing
additional remedies under Bivens”); Griffin v. Ashcroft, No. 02-
5399, 2003 WL 22097940, at *1 (D.C. Cir. Sept. 3, 2003) (no
Bivens remedy despite regulation providing that “inmate
records systems are exempt from the [Privacy Act’s]
amendment provision”). The Privacy Act represents
Congress’s legislative judgment about the appropriate
remedies with respect to the accuracy, fairness, and use of
government information, and the judicial system is not in a
position to revise that scheme by recognizing an additional
constitutional remedy for that kind of claim.
We accordingly conclude, as we have before, that the
Privacy Act inhibits the availability of a Bivens remedy with
respect to the information about Liff in the reports and public
statements on which he bases his claim.
IV.
Defendant-Appellants assert that the District Court erred
in denying their qualified-immunity defenses. Because we
have determined that Liff has no viable Bivens action against
Defendant-Appellants, we need not consider their qualified-
immunity defenses. See, e.g., Doe, 683 F.3d at 397.
Conclusion
For the forgoing reasons, we reverse the District Court’s
denial of the Bivens Defendants’ motion to dismiss.