                             NOT FOR PUBLICATION                        FILED
                     UNITED STATES COURT OF APPEALS                      AUG 2 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 LORI LEE PONCE,                                 No.    13-36192

 Plaintiff-Appellant                             D.C. 3:11-cv-00172-AC


   v.                                            ORDER

 U.S. GOVERNMENT,

 Defendant-Appellee.

Before: TASHIMA, TALLMAN, and HURWITZ, Circuit Judges.

        The panel has unanimously voted to deny appellant’s petition for panel

rehearing. Judges Tallman and Hurwitz voted to deny the petition for rehearing en

banc, and Judge Tashima so recommends. The full court has been advised of the

petition for rehearing en banc, and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing

and rehearing en banc, Dkt. No. 41, is DENIED.

        The Memorandum Disposition filed on May 10, 2016, is hereby amended as

follows:

        At the end of Paragraph 2, the following footnote should be added:


                                          1
      <Here, rather than seeking injunctive relief to prompt a decision on the

merits of a claim for benefits, see, e.g., Rodriguez v. Donovan, 769 F.2d 1344,

1346-48 (9th Cir. 1985), Ponce seeks to recover damages from unnamed

governmental employees for delays incurred in the processing of her FECA

claims.>.

      No further petitions for rehearing or rehearing en banc will be entertained.




                                         2
                                    NOT FOR PUBLICATION                  FILED
                       UNITED STATES COURT OF APPEALS                     AUG 2 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

    LORI LEE PONCE,                               No.    13-36192

           Plaintiff - Appellant,                 D.C. No. 3:11-cv-00172-AC

     v.                                           AMENDED
                                                  MEMORANDUM*
    U.S. GOVERNMENT,

           Defendant - Appellee.

                      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.

          Lori 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).
                                          1
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.
                                         2
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

      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



3
         Here, rather than seeking injunctive relief to prompt a decision on the merits
of a claim for benefits, see, e.g., Rodriguez v. Donovan, 769 F.2d 1344, 1346-48 (9th
Cir. 1985), Ponce seeks to recover damages from unnamed governmental employees
for delays incurred in the processing of her FECA claims.
                                            3
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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