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Contractor Loses Bivens Appeal Over Reputation Assassination

By George Khoury, Esq. on February 08, 2018 | Last updated on March 21, 2019

In line with recent rulings limiting the reach of Bivens claims, the U.S. Circuit Court of Appeals for the District of Columbia, in Liff v. Dept. of Labor, reversed a lower federal court, and refused to extend Bivens to a federal contractor's claim.

Stewart Liff, who ran Stewart Liff and Associates, was, at one time, a successful human resources expert and government contractor. However, he alleged that he was the subject of a reputation assassination that resulted in him essentially losing all his government contract work, which made up about 90 percent of his business. Liff claimed that as a result of a public agency report (that stated spending on his services was wasteful) going public, and other reputational harms, he lost nearly all his business.

Where There's a Remedy, There's No Bivens

In refusing to allow the Bivens claim to move forward, the appellate court explained that Liff had other options for legal recourse, which all but renders Bivens unavailable. As a federal contractor there are quite a few different provisions that he could have availed himself of when he stopped being awarded contracts as frequently, or at all.

Additionally, as to his loss of reputation from the agency report going public, the court also noted that other courts have refused to extend Bivens in parallel situations because the Privacy Act provides an adequate remedy for that violation.

Bivens on the Backslide

Since last summer, everyone's favorite Constitutional law scholar, Erwin Chemerinski has been warning about the limits being placed on Bivens claims. The D.C. Circuit's decision here applied some of those recent cases, particularly SCOTUS's recent refusal to extend Bivens to new types of claims.

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