FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN RADIO SERVICES CO.; 

RICHARD L. OBERDORFER,

Plaintiffs-Appellants, No. 08-35186

v. D.C. No.

UNITED STATES FOREST SERVICE;  04-CV-01346-AA

LARRY TIMCHAK; JIM MCMILLIN;

OPINION BOB ROCK; KRISTEN BAIL; JIM

SAUSER; DIANA HSIEH,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted

May 7, 2009—Portland, Oregon

Filed August 21, 2009

Before: William A. Fletcher, Carlos T. Bea, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

11485
COUNSEL

Marianne Dugan, Eugene, Oregon, for the plaintiff-appellants.

Kevin Danielson, Portland, Oregon, for the defendantsappellees.

OPINION

IKUTA, Circuit Judge:

Richard Oberdorfer and his company, Western Radio Services (collectively, “Western”), brought an action against the

United States Forest Service and six of its officers under

Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971),1

 and the Administrative Proce1Bivens was the first Supreme Court decision authorizing plaintiffs to

bring claims for money damages against individual federal officials based

on constitutional violations where no federal statute authorized such a suit;

courts have subsequently referred to these as “Bivens claims.” 

11488 WESTERN RADIO SERVICES v. USFS
dure Act (APA), Pub. L. 79-404, 60 Stat. 237 (1946). The district court dismissed the APA claims as moot and granted the

government’s motion for summary judgment on the Bivens

claims, holding that the APA provided an adequate alternative

remedy which foreclosed a remedy under Bivens. Western

appeals only the dismissal of the Bivens claims. We agree

with the district court that the APA provides Western an adequate alternative remedy, and we affirm.

I

Because this appeal comes to us from the grant of a motion

for summary judgment, we relate the facts in the light most

favorable to Western. See Nolan v. Heald Coll., 551 F.3d

1148, 1150 (9th Cir. 2009).

Gray Butte is an 80-acre area within the Ochoco National

Forest in central Oregon. The Forest Service leases various

sites in the area to electronic communications companies,

including Western and two other companies, Slater Communications and Electronics and Day Wireless Systems. Each

lease agreement incorporates by reference the terms of the

Forest Service’s Gray Butte Electronic Site Management

Plan, which “establish[es] a guide for the land manager to

base decisions concerning the development of the site in conformance with” ten stated environmental objectives. 

Western first constructed radio towers on Gray Butte in

1978, and it maintained good relations with the Forest Service

for the first five years of its operations there. In 1986, Western began bringing administrative appeals of various Forest

Service decisions. In 1993, Western filed several lawsuits

challenging Forest Service permit and leasing decisions. After

Western began challenging Forest Service decisions, it experienced unfavorable treatment from the Forest Service, including unexplained delays in processing its applications and

rejections of its applications. On January 3, 1991, Western

applied to the Forest Service for permission to place addiWESTERN RADIO SERVICES v. USFS 11489
tional antennae on Gray Butte. Slater Communications

objected, and Western submitted a revised application. Years

later, in 1998, the Forest Service denied Western’s application. Western appealed this denial, and in 1999 the Forest Service withdrew its denial and took Western’s application back

under consideration. More years passed, and in 2002 and

2003, Western pressed Forest Service officials to take action

on its still-pending 1991 application. Between 2003 and 2007,

there were communications between Western and various

Forest Service officers, with the Forest Service continuing to

request additional documents and clarifications and adding

new procedural requirements to Western’s application. 

While Western was attempting to secure permission to

install its side-hill antennae, Western also complained to the

Forest Service regarding problems it was having with other

Gray Butte lessees. In August 2000, Western informed a Forest Service officer that Slater Communications was not in

compliance with the Site Plan, and that Slater Communications “would not allow inspection” by Western. Although

Western believed other lessees operated equipment that did

not “meet the technical standards” required by the applicable

regulations and the Site Plan, Western was unable to specify

the nature of the lessees’ noncompliance because Western

was unable to conduct its own inspection of the lessees’ sites.

In August 2002, the Forest Service began the process of

scheduling an inspection of Gray Butte. In response, Western

again raised complaints about other lessees’ noncompliance

with the Site Plan. Western also asked the Forest Service to

appoint representatives of other Gray Butte lessees, including

Western, to the inspection team. In September 2002, the Forest Service inspected all three facilities at Gray Butte, but did

not include lessees on its inspection team. The Forest Service

found only minor deficiencies at Slater Communications and

Day Wireless. Following this inspection, Western continued

to send emails to the Forest Service accusing other lessees of

noncompliance and demanding enforcement of the Site Plan.

11490 WESTERN RADIO SERVICES v. USFS
On September 22, 2004, Western brought claims against

the Forest Service and the individual defendants under Bivens

and the APA, alleging that the defendants failed to stop other

lessees’ noncompliance with the Site Plan, failed to allow

Western to conduct site inspections of other lessees’ facilities,

and delayed taking action on Western’s application to install

the two additional “side-hill” antennae on Gray Butte. Western claimed that these delays and inactions violated the First

Amendment (by treating Western unfavorably in retaliation

for its prior litigation against the Forest Service), the Fifth

Amendment (by treating Western less favorably than the other

lessees without a rational basis), and the APA (by unlawfully

withholding or unreasonably delaying administrative action).

In January 2006, Western submitted a revised application

seeking permission to construct four additional microwave

antennae on the side-hill locations. The Forest Service prepared an environmental assessment for the proposal, and, on

September 4, 2007, issued an administrative decision allowing Western to build two of the four proposed antennae. The

district court then dismissed Western’s APA inaction claims

as moot because the agency had acted. The court also granted

the defendants’ motion for summary judgment on Western’s

Bivens claims, holding that the APA provided an adequate

alternative remedy to a Bivens action. 

Western appeals only the grant of summary judgment on

his Bivens claims. Our review is de novo. See Nolan, 551 F.3d

at 1150.

II

[1] At the outset, we note that the Supreme Court has held

that no Bivens remedy is available against a federal agency,

see FDIC v. Meyer, 510 U.S. 471, 484 (1994), and on that

ground we affirm the district court’s dismissal of Western’s

Bivens claims against the Forest Service itself. We therefore

turn to whether the circumstances of this case require us to

WESTERN RADIO SERVICES v. USFS 11491
recognize an implied right of action under Bivens against the

individual Forest Service officers for their alleged violations

of Western’s constitutional rights.

A

[2] In Bivens, 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.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Specifically, the Court in Bivens allowed a plaintiff to bring a

damages action in federal court against individual federal officials for violating the Fourth Amendment, despite the absence

of any federal statute authorizing such an action. See Bivens,

403 U.S. at 397. Within the next few years, the Supreme

Court extended Bivens in two additional cases where the

Court concluded an implied right of action for money damages was consistent with congressional intent. In Davis v.

Passman, the Court permitted a political appointee to bring a

sex-discrimination claim against a congressman, despite the

absence of such a remedy in Title VII of the Civil Rights Act

of 1964, because there was no evidence that Congress

intended to prevent political appointees from seeking relief

under a judicially created remedy. 442 U.S. 228, 247 (1979).

Similarly, in Carlson v. Green, the Court allowed a prisoner’s

action against prison officials for failure to provide proper

medical attention in violation of the Eighth Amendment’s

prohibition against cruel and unusual punishment, notwithstanding the availability of a remedy under the Federal Tort

Claims Act (FTCA), because there was evidence that Congress did not intend the FTCA to be a substitute for recovery

under Bivens. 446 U.S. 14, 20 (1980). 

[3] Since Carlson, however, the Supreme Court has “consistently refused to extend Bivens liability to any new context

or new category of defendants.” Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001). The Court has focused

increased scrutiny on whether Congress intended the courts to

11492 WESTERN RADIO SERVICES v. USFS
devise a new Bivens remedy, and in every decision since Carlson, across a variety of factual and legal contexts, the answer

has been “no.” See, e.g., Chappell v. Wallace, 462 U.S. 296,

297 (1983) (declining to allow an implied right of action for

military personnel who allegedly suffered racial discrimination at the hands of their superior officers); Bush v. Lucas,

462 U.S. 367, 368 (1983) (declining to allow an implied right

of action for a federal civil-service employee who allegedly

suffered unconstitutional employment actions); Schweiker v.

Chilicky, 487 U.S. 412, 425 (1988) (declining to allow an

implied right of action for disabled persons who were allegedly denied Social Security disability benefits in violation of

their due process rights); Wilkie v. Robbins, 551 U.S. 537,

561-62 (2007) (declining to allow an implied right of action

for a landowner who allegedly suffered harassment and intimidation by federal officials in violation of his rights under the

Fourth and Fifth Amendments).

[4] In Wilkie, the Court distilled its 35-year history of

Bivens jurisprudence into a two-step analysis for determining

congressional intent as to the appropriateness of a Bivens remedy. See id. at 550. First, the Court determines whether there

is “any alternative, existing process for protecting” the plaintiff ’s interests. Id. Such an alternative remedy would raise the

inference that Congress “expected the Judiciary to stay its

Bivens hand” and “refrain from providing a new and freestanding remedy in damages.” Id. at 550, 554. The Court has

explained that, “[w]hen the design of a Government program

suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that

may occur in the course of its administration, we have not created additional Bivens remedies.” Chilicky, 487 U.S. at 423;

see also Castaneda v. United States, 546 F.3d 682, 701 (9th

Cir. 2008). Accordingly, the Court has refrained from creating

a judicially implied remedy even when the available statutory

remedies “do not provide complete relief” for a plaintiff that

has suffered a constitutional violation. Corr. Servs. Corp., 534

U.S. at 69 (quoting Bush, 462 U.S. at 388). “So long as the

WESTERN RADIO SERVICES v. USFS 11493
plaintiff ha[s] an avenue for some redress, bedrock principles

of separation of powers foreclose[s] judicial imposition of a

new substantive liability.” Id.

We have interpreted these cases as holding that, “[s]o long

as Congress’ failure to provide money damages, or other significant relief, has not been inadvertent, courts should defer to

its judgment.” Berry v. Hollander, 925 F.2d 311, 314 (9th Cir.

1991) (internal quotation marks omitted); accord Adams v.

Johnson, 355 F.3d 1179, 1185 n.3 (9th Cir. 2004) (explaining

that the adequate alternative remedy “need not be perfectly

comprehensive”). In Chilicky, for example, the Court declined

to create a Bivens action for recovery of money damages for

“emotional distress and for loss of food, shelter and other

necessities” caused by the wrongful denial of Social Security

benefits. 487 U.S. at 419, 426. The Court reasoned that the

existence of a comprehensive and elaborate remedial scheme

for wrongly withheld Social Security disability benefits

evinced a “congressional unwillingness to provide consequential damages for unconstitutional deprivations” of those benefits. Because Congress “provide[d] meaningful safeguards or

remedies” for the plaintiffs, and because “personal liability

for official acts” would “undoubtedly lead to new difficulties

and expense in recruiting administrators for the programs

Congress has established,” the Court held that Congress had

implicitly foreclosed a Bivens remedy even though it had not

provided complete relief to the plaintiffs. Id. at 425. 

[5] Second, if the Court cannot infer that Congress intended

a statutory remedial scheme to take the place of a judge-made

remedy, the Court next asks whether there nevertheless are

“factors counseling hesitation” before devising such an

implied right of action. Wilkie, 551 U.S. at 550. Even where

Congress has given plaintiffs no damages remedy for a constitutional violation, the Court has declined to create a right of

action under Bivens when doing so “would be plainly inconsistent with Congress’ authority in this field.” Chappell, 462

U.S. at 304. In Chappell, for example, enlisted military per11494 WESTERN RADIO SERVICES v. USFS
sonnel had no damages remedy of any kind against their superiors for constitutional violations, but the Court nevertheless

declined to create a damages remedy under Bivens. 462 U.S.

at 301. The Court explained that “the unique disciplinary

structure of the Military Establishment and Congress’ activity

in the field constitute ‘special factors’ which dictate that it

would be inappropriate to provide enlisted military personnel

a Bivens-type remedy against their superior officers.” Id. at

304.

The Court also found “special factors counselling hesitation” in Wilkie, and accordingly declined to create a Bivens

remedy. 551 U.S. at 550. In Wilkie, a ranch owner claimed

that officers of the Bureau of Land Management tried to

coerce him into granting the federal government an easement

over his land. The ranch owner alleged that Bureau officials

trespassed on his property; broke into his lodge and left trash

inside; videotaped his vacationing clients from a hilltop while

they “sought privacy to relieve themselves”; revoked the grazing permit and special-use permit that allowed him to “run

guest cattle drives”; levied fines against him for trespassing

on federal land; convinced the local United States Attorney’s

office to bring a meritless criminal prosecution against him;

and tried to convince the local sheriff to impound his cattle.

Id. at 542-47. The ranch owner therefore brought Bivens

claims against the officers, alleging that they violated his

Fourth and Fifth Amendment rights by “retaliating against the

exercise of [his] ownership rights.” Id. at 549. 

In the first step of its Bivens analysis, the Court examined

whether there was “any alternative, existing process” available to the ranch owner, and broke his claims “into four main

groups: torts or tort-like injuries inflicted on him, charges

brought against him, unfavorable agency actions, and offensive behavior by Bureau employees falling outside those three

categories.” Id. at 551. Addressing the criminal charges, the

Court concluded that, “[f]or each charge,” the plaintiff “had

some procedure to defend and make good on his position . . .

WESTERN RADIO SERVICES v. USFS 11495
although he had mixed success, he had the means to be

heard.” Id. at 552. Addressing the unfavorable agency actions,

the Court concluded that, “[f]or each claim, administrative

review was available, subject to ultimate judicial review

under the APA.” Id. The Court further concluded that the

plaintiff had some type of remedy in tort for the alleged trespasses and vandalism, though noting some uncertainty as to

whether a remedy was available against the officers’ videotaping of his guests. Id. at 553. In sum, the Court concluded

that the plaintiff had “an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints.”

Id.

Nonetheless, the Court held that the case could not be disposed of at step one of its Bivens analysis because “the

forums of defense and redress” were “a patchwork, an assemblage of state and federal, administrative and judicial benches

applying regulations, statutes and common law rules.” Id. at

554. Thus, the Court stated, “[i]t would be hard to infer that

Congress expected the Judiciary to stay its Bivens hand, but

equally hard to extract any clear lesson that Bivens ought to

spawn a new claim.” Id. The Court therefore concluded that

Wilkie was a case “for Bivens step two, for weighing reasons

for and against the creation of a new cause of action, the way

common law judges have always done.” Id. The Court

explained that it must “make the kind of remedial determination that is appropriate for a common-law tribunal, paying

particular heed, however, to any special factors counseling

hesitation before authorizing a new kind of federal litigation.”

Id. at 550 (quoting Bush, 462 U.S. at 378).

In the second step of this two-step analysis, the Court noted

that the plaintiff ’s allegation amounted to the claim that the

officers had pushed too hard on the government’s behalf, and

the Court reasoned that it would be too difficult to draw a line

between “legitimately hard bargaining” and “illegitimate pressure.” Id. at 562. In light of the “serious difficulty of devising

a workable cause of action,” the Court concluded that “a gen11496 WESTERN RADIO SERVICES v. USFS
eral Bivens cure would be worse than the disease,” and therefore held that the plaintiffs had no implied right of action for

damages under Bivens. Id. at 561.

B

Applying Wilkie’s two-step analysis to this case, we begin

by asking whether the existence of “any alternative, existing

process” available to Western, or other indication of Congressional intent, raises the inference that Congress “expected the

Judiciary to stay its Bivens hand.” Id. at 550, 554.

[6] At the outset, we note that Wilkie itself gave us a strong

indication that the APA constitutes an “alternative, existing

process” for Western’s damages claims based on agency

actions and inactions. The Court in Wilkie observed that the

ranch owner had an adequate remedy for the “unfavorable

agency actions,” because, “[f]or each [such] claim, administrative review was available, subject to ultimate judicial

review under the APA.” Id. at 552.2 Wilkie moved on to step

two because the plaintiff had only a patchwork of different

remedies for addressing the other, non-administrative claims.

Id. at 554.

[7] Although Wilkie does not explain in detail how it determined that the APA was an adequate alternative remedy for

unfavorable agency actions, our own consideration of the

APA leads to the same conclusion. The APA expressly

declares itself to be a comprehensive remedial scheme: it

states that a “person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to judicial

2The specific final agency actions in Wilkie were the Bureau’s cancellation of the ranch owner’s right-of-way, its decision to reduce the length

of the special recreational use permit from five years to one and subsequent termination of that permit, and its revocation of his cattle-grazing

permit. Id. at 552-53. 

WESTERN RADIO SERVICES v. USFS 11497
review,” 5 U.S.C. § 702, and then sets forth the procedures for

such review, see id. §§ 704, 706. “The APA’s comprehensive

provisions . . . allow any person ‘adversely affected or

aggrieved’ by agency action to obtain judicial review thereof,

so long as the decision challenged represents a ‘final agency

action for which there is no other adequate remedy in a

court.’ ” Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting

5 U.S.C. §§ 701-06). Specifically, the APA authorizes a

reviewing court to: 

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (A) arbitrary,

capricious, an abuse of discretion, or otherwise not

in accordance with law; [or] (B) contrary to constitutional right, power, privilege, or immunity . . . .

5 U.S.C. § 706(1)-(2); see also Darby v. Cisneros, 509 U.S.

137, 143-47 (1993) (discussing the provisions and structure of

the judicial-review sections of the APA). Like the “administrative structure and procedures of the Social Security system”

at issue in Chilicky, the APA is vast in scope and affects “virtually every American.” 487 U.S. at 424. Indeed, the APA is,

by its nature, broader in scope than the Social Security system: absent some statutory or other exception, the APA’s

“comprehensive provisions” provide the backup or default

remedies for all interactions between individuals and all federal agencies, not just the Social Security Administration. 5

U.S.C. §§ 702, 704; Webster, 486 U.S. at 599. The fact that

APA’s procedures are available where no other adequate

alternative remedy exists further indicates Congress’s intent

that courts should not devise additional, judicially crafted

default remedies. See 5 U.S.C. § 704.

The APA does not provide for monetary damages, though

it does allow “specific relief,” including the payment of

11498 WESTERN RADIO SERVICES v. USFS
money to which a plaintiff is entitled. Bowen v. Massachusetts, 487 U.S. 879, 895 (1988). Nor does the APA allow

claims against individuals or provide a right to a trial by jury.

Both the Supreme Court and this court have concluded, however, that remedial schemes lacking such features may be adequate alternatives, provided that the absence of such

procedural protections was not inadvertent on the part of Congress. See Chilicky, 487 U.S. at 424-25; Libas Ltd. v. Carillo,

329 F.3d 1128, 1129 (9th Cir. 2003) (holding that no Bivens

remedy was available where a statutory scheme allowed

importers to challenge customs agents’ erroneous assessments

of import duties but did not provide for consequential damages or a right of action against the individual agents); Janicki

Logging Co. v. Mateer, 42 F.3d 561, 564-65 (9th Cir. 1994)

(holding that the Contract Dispute Act provided an adequate

alternative remedy to a Bivens action, even though it did not

provide for damages claims against individual officers or the

right to a jury trial). 

[8] In sum, the design of the APA raises the inference that

Congress “expected the Judiciary to stay its Bivens hand” and

provides “a convincing reason for the Judicial Branch to

refrain from providing a new and freestanding remedy in

damages,” Wilkie, 551 U.S. at 550, 554, notwithstanding the

unavailability of money damages against individual officers

or the right to a jury trial. With respect to agency action and

inaction, we conclude that Congress “has considered the universe of harms that could be committed in the program’s

administration and has provided what Congress believes to be

adequate remedies.” Adams, 355 F.3d at 1185. We therefore

conclude that the APA leaves no room for Bivens claims

based on agency action or inaction. 

C

This conclusion resolves Western’s claims. Western alleges

that the individual defendants were responsible for the Forest

Service’s denial of Western’s application to place additional

WESTERN RADIO SERVICES v. USFS 11499
radio antennae on Gray Butte and its failure to take administrative action against other site lessees when it was required

by the Site Plan to do so. Provided Western complied with the

APA’s procedural requirements, see 5 U.S.C. § 704, such

agency actions and inactions could be challenged under the

APA, see id. at § 706(1)-(2); see also Wilkie, 551 U.S. at 552;

Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977,

979, 983-84 (9th Cir. 2006) (reviewing Forest Service action

under the APA). In light of Congress’s provision of an adequate statutory remedial scheme, and because Congress could

reasonably conclude that limitations on the available remedies

were appropriate in this context, we conclude that Western

cannot maintain its Bivens claims against the individual

defendants for causing the Forest Service’s alleged actions

and inactions.

Western does not dispute that it has alternative remedies

under the APA; it did, after all, bring APA claims against the

Forest Service in this case. But Western raises several arguments as to why we should nevertheless allow it an implied

right of action.

First, Western points to our decision in Castaneda, where

we followed the Supreme Court’s precedent in Carlson and

held that the FTCA did not preclude a Bivens action for a prisoner alleging violations of his Eighth Amendment rights by

prison officials. See 546 F.3d at 688. We noted various deficiencies in the FTCA’s remedial scheme, and Western argues

that Carlson and Castaneda are controlling because the APA

has the same deficiencies. We disagree. In analyzing whether

the FTCA was an inadequate alternative remedy, Castaneda

mentioned the unavailability of monetary damages against

individuals and lack of a right to a jury trial. Id. at 689-90. But

as we have already explained, the case law of the Supreme

Court and this court makes clear that a remedial scheme may

be adequate even if it does not include these elements. See

Chilicky, 487 U.S. at 424-25, Libas Ltd., 329 F.3d at 1129.

Castaneda’s decision to allow a Bivens claim in the Eighth

11500 WESTERN RADIO SERVICES v. USFS
Amendment context was thus driven primarily by a unique

deficiency in the FTCA: its authorization of only those

actions allowed by “the law of the place where the act or

omission occurred.” Id. at 690. As we explained: 

[T]he remedies we and the Supreme Court have held

to preclude Bivens were deliberately crafted by Congress and applied uniformly throughout the republic.

We are aware of no case holding a remedial scheme

that is entirely parasitic on state law to be a substitute for a Bivens remedy.

Castaneda, 546 F.3d at 690. No such concern is present with

the APA, a freestanding federal statute that applies uniformly

throughout the country. Because the APA’s remedial scheme

does not share the FTCA’s lack of uniformity, Castaneda is

not controlling.

Second, Western cites Carlson’s analysis of congressional

intent. In Carlson, the Court concluded that Congress did not

intend for the FTCA to be a substitute for Bivens because the

FTCA had already been enacted when Bivens was decided.

Moreover, Carlson noted that a post-Bivens amendment to the

FTCA did not include a statement of congressional intent to

create a substitute for Bivens. Western points to the fact that

the APA, like the FTCA, predated Bivens, and that Congress

similarly failed to address Bivens in a post-Bivens amendment

to the APA. According to Western, this legislative history

compels the inference that Congress did not intend the APA

to be a substitute for Bivens. 

Again, we disagree. Carlson did not rely only on congressional silence in post-Bivens amendments to the FTCA;

rather, Carlson noted that “the congressional comments

accompanying that amendment made it crystal clear that Congress views FTCA and Bivens as parallel, complementary

causes of action.” 446 U.S. at 19-20 (emphasis added). The

Court quoted legislative history expressly stating that the

WESTERN RADIO SERVICES v. USFS 11501
FTCA “should be viewed as a counterpart to the Bivens case.”

Id. at 20 (quoting S. Rep. No. 93-588, p. 3 (1973)). Western

points to no similar indications of congressional intent with

respect to the APA. Both the Supreme Court and this court

have often declined to create Bivens actions to supplement

statutory remedies, even in situations where Congress gave no

affirmative indication that it intended to preclude judge-made

relief. See, e.g., Chilicky, 487 U.S. at 425-26; Bush, 462 U.S.

at 378; Adams, 355 F.3d at 1185; Libas Ltd., 329 F.3d at

1129; Janicki Logging, 42 F.3d at 564-65; Berry, 925 F.2d at

315-16. Congress’s silence in post-Bivens amendments to the

APA does not raise the inference that it intended to allow an

implied right of action. 

Finally, Western argues that Wilkie is distinguishable from

this case because here the individual defendants’ alleged misdeeds were the result of illegitimate motives. Western claims

that the individual officers’ misdeeds were based on an illegitimate desire to retaliate against Western for exercising its

First Amendment right to petition the government for redress

of grievances and to discriminate against Western without a

rational basis. In Wilkie, by contrast, the Court refrained from

creating a Bivens remedy due to concerns about the “difficulty

in defining a workable cause of action” against government

employees for overzealous conduct based on legitimate motivations. 551 U.S. at 555-56 (“[U]nlike punishing someone for

speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose.”). Because such “line-drawing difficulties” are

not present here, id. at 557, Western argues that Wilkie does

not prevent us from allowing it a right of action under Bivens.

Western’s argument misunderstands Wilkie, which considered the defendants’ legitimate motives at the second stage of

its two-step inquiry. In step one of the analysis, the Court concluded that the alternative remedies available to the plaintiff

were “a patchwork” and therefore inadequate. Id. at 554. The

Court then moved on to “Bivens step two,” in which it consid11502 WESTERN RADIO SERVICES v. USFS
ered whether there were “special factors counselling hesitation before authorizing a new kind of federal litigation” and

“weigh[ed] reasons for and against the creation of a new

cause of action.” Id. at 550, 554. Only at step two did the

Court consider the legitimacy of the defendants’ motives. In

the present case, our analysis ends at step one: we have determined that the APA is an adequate alternative remedy for

Western’s claims, and we therefore have no need to “weigh[ ]

reasons for and against the creation of a new cause of action.”

Wilkie, 551 U.S. at 554.

III

[9] Because Western’s claims against the individual defendants are based on Forest Service actions or inactions, we

conclude that the remedies available to Western under the

APA constitute an “alternative, existing process” that

“amounts to a convincing reason for the Judicial Branch to

refrain from providing a new and freestanding remedy in

damages.” Id. at 550. Western’s alternative remedies under

the APA, although not perfectly comprehensive, are adequate.

Id. at 543; Adams, 355 F.3d at 1185 n.3. This conclusion ends

our two-step Bivens analysis, and so we need not determine

whether a Bivens right of action is applicable to a claim alleging a violation of the First Amendment. See Iqbal, 129 S. Ct.

at 1948 (noting prior decision refusing to extend Bivens to

First Amendment claims, but declining to reach the issue). 

AFFIRMED.

WESTERN RADIO SERVICES v. USFS 11503
PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted

© 2009 Thomson Reuters/West.