KENT TERRY, Sr. v. William Newell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENT TERRY, Sr.; JOSEPHINE TERRY,
in their individual capacities as the parents
of Brian A. Terry, deceased, and as pending
applicants to be co-Personal
Representatives of the Estate of Brian A.
Terry,
Plaintiffs - Appellants,
v.
WILLIAM NEWELL; JANE DOE
NEWELL; GEORGE GILLETT; JANE
DOE GILLETT; DAVID VOTH; JANE
DOE VOTH; HOPE MACALLISTER;
JOHN DOE MACALLISTER; TONYA
ENGLISH; JOHN DOE ENGLISH;
WILLIAM MCMAHON; JANE DOE
MCMAHON; EMORY THOMAS
HURLEY; JANE DOE HURLEY,
Defendants - Appellees.
No. 14-15284
D.C. No. 2:12-cv-02659-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted March 17, 2016
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FILED
JUN 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: W. FLETCHER, RAWLINSON, and HURWITZ, Circuit Judges.
The parents of deceased Border Patrol Agent Brian Terry appeal the district
court’s dismissal of this Bivens action against employees of the Bureau of Alcohol,
Tobacco, Firearms and Explosives and an Assistant United States Attorney
(collectively, the “Officials”).
This action arises out of the notorious “Operation Fast and Furious” (the
“Operation”). The Operation, designed and implemented by the Officials, allowed
individuals with clean backgrounds to purchase firearms and then “gunwalk” them
to Mexican cartel members. The Officials hoped that by tracking the guns, they
would ultimately be able to dismantle the cartel. Agent Terry was shot and killed
near the Mexico border in December 2010 by cartel operatives using firearms
“gunwalked” under the Operation.
The Terrys’ amended complaint alleged that the Officials violated the
substantive Due Process Clause of the Fifth Amendment by knowingly creating an
increased risk of danger to Agent Terry. The district court dismissed the complaint,
declining to recognize a Bivens remedy because statutory benefits available to the
Terrys were a “convincing reason for the Judicial Branch to refrain from providing
a new and freestanding remedy in damages.” We have jurisdiction under 28 U.S.C.
§ 1291 and affirm, albeit on a different ground.

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1. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court recognized “for the first time an implied
private action for damages against federal officers alleged to have violated a citizen’s
constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To
date, the Supreme Court has recognized a Bivens remedy for violations of the Fourth
Amendment, Bivens, 403 U.S. at 389; the procedural component of the Due Process
Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 234 (1979); and
the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 17-18 (1980). Since 1980,
however, the Court has “consistently refused to extend Bivens liability to any new
context or new category of defendants.” Malesko, 534 U.S. at 68; see, e.g., Bush v.
Lucas, 462 U.S. 367, 390 (1983) (no Bivens claim against a federal official for
violation of federal employee’s First Amendment rights); United States v. Stanley,
483 U.S. 669, 683-84 (1987) (no Bivens claim for injuries arising out of military
service); Schweiker v. Chilicky, 487 U.S. 412, 420 (1988) (no Bivens claim against
Social Security Administration officials for wrongful termination of benefits).
2. 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, 551 U.S. at 550. Second, even if no such process exists, “a

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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, 462 U.S. at 378).
3. The district court concluded that, taken together, the benefits provided to
the Terrys under the Federal Employees Retirement System, 5 U.S.C. §§ 8401, et
seq., the Federal Employees Compensation Act, 5 U.S.C. §§ 8101, et seq., and the
Public Safety Officer Benefits Act, 42 U.S.C. § 3796, constitute a convincing reason
not to authorize a Bivens remedy.
4. These statutes ensure benefits to survivors of federal law enforcement
officers regardless of wrongdoing by others. Because they neither provide a forum
for adjudicating allegations of official wrongdoing nor deter unconstitutional
conduct, the Terrys contend that the statutes do not amount to a convincing reason
for the courts to decline to recognize a Bivens action. But, even assuming the
district court erred in finding to the contrary, we nonetheless decline to authorize a
Bivens remedy for the Terrys’ claim. The Supreme Court has recognized
“Congress’ institutional competence in crafting appropriate relief for aggrieved
federal employees as a ‘special factor counseling hesitation in the creation of a new
remedy,’” Malesko, 534 U.S. at 68 (quoting Bush, 462 U.S. at 380), and has warned
us against recognizing a Bivens action that would raise questions of “federal

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personnel policy,” Bush, 462 U.S. at 380-81 (internal quotation marks omitted).
“‘Congress is in a far better position than a court to evaluate the impact of a new
species of litigation’ against those who act on the public’s behalf.” Wilkie, 551 U.S.
at 562 (quoting Bush, 462 U.S. at 389); see also Farkas v. Williams, --- F.3d ---,
2016 WL 2994810, at *2-3 (9th Cir. 2016) (“Even inadequate statutory remedies
counsel against recognizing a Bivens claim if there are indications that congressional
inaction has not been inadvertent.”).
5. These warnings against the expansion of Bivens liability have particular
force here, where the claim is that a federal law enforcement officer—whose job
already subjected him to considerable danger—was placed in even greater danger
by the actions and omissions of other federal law enforcement personnel. Cf.
Chappell v. Wallace, 462 U.S. 296, 304 (1983) (declining to authorize a Bivens
remedy for military personnel against their superior officers). Although all
acknowledge that the Operation was disastrous and we assume for today’s purposes
that it was ill-conceived, adjudication of such claims would necessarily embroil the
courts in policy determinations beyond their institutional capacity and role. The
availability of Bivens liability against law enforcement officials when an operation
proves improvident or poses unnecessary danger to other law enforcement officials
could deter development of effective law enforcement strategies, and would expose
federal agencies to significant financial burdens. See FDIC v. Meyer, 510 U.S. 471,

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486 (1994) (noting the “potentially enormous financial burden” of agency liability
as a special factor counselling hesitation in creation of a Bivens remedy). Insofar
as the Terrys seek a public forum in which to assert the irresponsibility of the
Officials’ actions, we sympathize. But under step two of the analysis required by
Wilkie, we are constrained to conclude that a Bivens action is not available for them
to do so.
AFFIRMED.

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