                              NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                     JUN 23 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


    KENT TERRY, Sr.; JOSEPHINE TERRY,               No. 14-15284
    in their individual capacities as the parents
    of Brian A. Terry, deceased, and as pending     D.C. No. 2:12-cv-02659-DGC
    applicants to be co-Personal
    Representatives of the Estate of Brian A.
    Terry,                                          MEMORANDUM*

               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.

                      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.
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.




                                         2
      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


                                           3
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


                                          4
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,


                                          5
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.




                                         6
