United States Court of Appeals, District of Columbia Circuit
October 26, 2017
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
Michael S. Raab, Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Y. Kiyonaga argued the cause and filed the briefs for
Before: Garland, Chief Judge, and Pillard and Wilkins,
WILKINS, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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.
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 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.
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
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 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 ...