Lori Lee Ponce v. U.s. Government

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI LEE PONCE,
Plaintiff - Appellant,
v.
U.S. GOVERNMENT,
Defendant - Appellee.
No. 13-36192
D.C. No. 3:11-cv-00172-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted May 4, 2016
Portland, Oregon
Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.
Tori Lee Ponce appeals the district court’s dismissal of her third amended
complaint and denial of leave to amend to assert a Bivens1 claim against unnamed
employees of the Department of Labor (“the Doe Defendants”). The Doe
Defendants allegedly initially denied, and then granted in part, Ponce’s claim for
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
1 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
FILED
MAY 10 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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benefits under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C.
§ 8101 et seq. in violation of her constitutional rights. We have jurisdiction under
28 U.S.C. § 1291 and affirm.2
1. Whether to recognize a Bivens claim is governed by a two-pronged
inquiry. First “is the question whether any alternative, existing process for
protecting the [constitutional] interest amounts to a convincing reason for the
Judicial Branch to refrain from providing a new and freestanding remedy in
damages.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007). Second, even if no such
process exists, “a Bivens remedy is a subject of judgment: ‘the federal courts must
make the kind of remedial determination that is appropriate for a common-law
tribunal, paying particular heed, however, to any special factors counselling
hesitation before authorizing a new kind of federal litigation.’” Id. (quoting Bush v.
Lucas, 462 U.S. 367, 378 (1983)). The district court relied solely on the first prong
of the inquiry, concluding that “the comprehensive remedial scheme of [FECA] in
the federal employment context prevents the recognition of a Bivens remedy.”
2. We agree. Ponce’s claim arises “out of an employment relationship that
is governed by comprehensive procedural and substantive provisions giving
2 The district court dismissed Ponce’s third amended complaint on sovereign
immunity grounds because it sought damages against the United States. On appeal,
Ponce challenges only the court’s denial of leave to amend to assert a Bivens claim
against the Doe Defendants.

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meaningful remedies against the United States.” Bush, 462 U.S. at 368. A Bivens
remedy is inappropriate because, through FECA, “Congress has provided what it
considers adequate remedial mechanisms for constitutional violations that may
occur in the course of its administration.” Schweiker v. Chilicky, 487 U.S. 412, 423
(1988).
3. The FECA statutory scheme is materially indistinguishable from the
Social Security legislation reviewed in Schweiker. FECA provides for an initial
determination by an agency of a claimant’s eligibility for benefits, followed by
multiple levels of review, including de novo review and the ability to present new
evidence. Compare 487 U.S. at 424 (detailing the Social Security process), with 20
C.F.R. § 10.600 et seq. (detailing FECA process). Moreover, the remedy Ponce
seeks is virtually identical to the one sought in Schweiker: “consequential damages
for hardships resulting from an allegedly unconstitutional denial of a statutory right.”
487 U.S. at 428. “In light of the comprehensive statutory schemes involved, the
harm resulting from the alleged constitutional violation can in neither case be
separated from the harm resulting from the denial of the statutory right.” Id. Nor
does the possibility that the remedy in a Bivens action would be more favorable than
those available under FECA justify the recognition of a Bivens claim. See
Schweiker, 487 U.S. at 425; Bush, 462 U.S. at 372.
AFFIRMED.

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