Paul Lietz v. Andrew Wilpher

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2022
• Docket: 19-35593
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL LIETZ, No. 19-35593

Plaintiff-Appellant, D.C. No. 1:18-cv-00554-EJL

v. MEMORANDUM* ANDREW WILPHER, Chief of Staff Boise VA Medical Center; KERI BARBERO, Chairperson, Disruptive Behavior Committee Boise VA Medical Center; DOES, John and Jane Doe 1-25,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted April 14, 2022 Seattle, Washington

Before: HAWKINS and FORREST, Circuit Judges, and RESTANI,** Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 1 Plaintiff Paul Lietz appeals the district court’s dismissal of his Bivens1 First

Amendment retaliation claim against several staff members at the Boise Veterans

Affairs Medical Center (the VA). We reject the VA’s assertion that we lack

jurisdiction under 38 U.S.C. § 511 because in the specific context of this case Lietz

does not seek review of any underlying decision made by the VA in “the course of

making benefits determinations.” Veterans for Common Sense v. Shinseki, 678 F.3d

1013, 1025 (9th Cir. 2012) (en banc) (internal quotation marks and citation omitted);

see Gila River Indian Cmty. v. Dep’t of Veterans Affs., 899 F.3d 1076, 1080 (9th Cir.

2018).

On the merits, to determine whether a cause of action exists under Bivens, the

Supreme Court has set forth a two-step analysis. First, we ask whether the claim

“arises in a new context or involves a new category of defendants.” Hernandez v.

Mesa, __ U.S. __, 140 S. Ct. 735, 743 (2020) (internal quotation marks and citation

omitted). “We regard a context as ‘new’ if it is ‘different in a meaningful way from

previous Bivens cases decided by [the Supreme] Court.’” Id. (citation omitted). If

the claim does arise in a new context, at step two we consider “whether there are any

special factors that counsel hesitation about granting the extension.” Id. (internal

quotation marks and citation omitted).

1 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

2 We conclude that Lietz’s Bivens claim arises in a new context. Although the

Ninth Circuit previously extended Bivens to First Amendment claims, the Supreme

Court has never expressly done so. Compare Boule v. Egbert, 998 F.3d 370, 392 (9th

Cir. 2021) (finding that a Bivens remedy was available for a First Amendment

retaliation claim), with Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have

never held that Bivens extends to First Amendment claims.”). We further conclude

that the “comprehensive, remedial structure” of the Veterans’ Judicial Review Act

(VJRA) is a special factor that counsels hesitation against extending Bivens to this

context. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (declining to extend

Bivens to a veteran’s First Amendment retaliation claim). Given the VJRA’s

comprehensive nature, that Congress did not include a cause of action for Lietz’s

retaliation claim suggests that his inability to obtain damages “was not inadvertent

on the part of Congress,” but instead “raises the inference that Congress expected

the Judiciary to stay its Bivens hand.” W. Radio Servs. Co. v. U.S. Forest Serv., 578

F.3d 1116, 1122–23 (9th Cir. 2009) (internal quotation marks and citation omitted).

Accordingly, we decline to recognize a Bivens cause of action for Lietz’s First

Amendment retaliation claim.

AFFIRMED.