Patricia G. Barnes v. MARTIN J. O’MALLEY, Commissioner of Social Security; JIMMY ELKINS, SSA Selection Officer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA G. BARNES,
Plaintiff-Appellant,
v.
MARTIN J. O’MALLEY, Commissioner of
Social Security; JIMMY ELKINS, SSA
Selection Officer,
Defendants-Appellees.
No. 23-15859
D.C. No.
3:18-cv-00199-MMD-CSD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted April 2, 2024**
Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
Plaintiff, Patricia G. Barnes, seeks review of two district court orders, one
dismissing her First Amendment claim, and the other granting summary judgment
for defendants denying her disparate impact claim brought against the Social
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 4 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Security Administration (“SSA”) under the Age Discrimination in Employment Act
(“ADEA”). Specifically, the district court determined that special factors counseled
against expanding Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics
to Barnes’ First Amendment retaliation claim. It also held that she had not presented
appropriate statistical evidence to show that the SSA’s employment practices caused
a disparate impact on people of a certain age group. This court has jurisdiction under
28 U.S.C. § 1291, and we affirm the decision of the district court.
When reviewing grants of summary judgment for ADEA claims, this court
reviews those grants de novo. See Palmer v. United States, 794 F.2d 534, 536 (9th
Cir. 1986). This court must determine whether there are any “genuine issue[s] of
material fact and whether the law was correctly applied” by the lower court. Id. We
view the “evidence in the light most favorable to the [nonmoving] party.” Id. We
review dismissals of claims de novo. See Vega v. United States, 881 F.3d 1146,
1152 (9th Cir. 2018).
This case largely centers on the ADEA’s prohibition on discriminating against
employees or applicants based on age. The statute states that “[a]ll personnel actions
affecting employees or applicants for employment who are at least 40 years of age
… shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a).
Disparate impact is one of the theories that can form the basis for an age
discrimination claim. In order to make out a case for disparate impact under the

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ADEA, a plaintiff must (1) identify an occurrence of certain outwardly neutral
employment practices, and (2) show that there was a significantly adverse or
disproportionate impact on persons of a certain age because of that employment
practice. See Palmer, 794 F.2d at 538 (internal citation and quotation marks
omitted).
Barnes initially contends that the district court failed to follow this court’s
mandate when it previously remanded her case. Barnes argues that the mandate
required the SSA to address why it limited the public notice of the recruitment to
certain offices. That contention, however, is incorrect. The prior panel only found
that a disparate impact resulting from the SSA’s hiring practices was plausible and
that the district court thus needed to assess that claim. This is what the district court
did when it developed the record on this issue. It complied with the court’s mandate.
Barnes next asserts that the district court incorrectly granted summary
judgment on her disparate impact claim. The district court found that despite the
opportunity that Barnes was afforded to present statistical evidence on the ages of
those who could access the job posting, she failed to present appropriate evidence to
establish a causal link between the SSA’s employment actions and a disparate impact
on applicants over the age of 40. While age data was provided for certain categories
of people who could have seen the posting—namely Boyd Law School students and
current Peace Corps members—there was no data presented about the ages of Boyd

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or Peace Corps alumni, students and alumni from other schools who had access to
Boyd’s online job board, or people within the SSA who were informed of the job
opening. We agree with the district court that Barnes has not presented the
appropriate evidence to show a disparate impact on individuals by virtue of their
age. Thus, the grant of summary judgment was proper.
Nor did the district court err in dismissing Barnes’s First Amendment claim.
She brough her claim under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, which allows for a limited right to sue federal officers for constitutional
violations. 403 U.S. 388 (1971). The Supreme Court has recently directly held that
“there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 596
U.S. 482, 499 (2022). This claim was thus properly dismissed.
AFFIRMED.

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