NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA G. BARNES, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O’MALLEY, Commissioner of 

Social Security; JIMMY ELKINS, SSA 

Selection Officer, 

Defendants-Appellees.

No. 23-15859 

D.C. No. 

3:18-cv-00199-MMD-CSD 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Submitted April 2, 2024**

Pasadena, California

Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.

Plaintiff, Patricia G. Barnes, seeks review of two district court orders, one 

dismissing her First Amendment claim, and the other granting summary judgment 

for defendants denying her disparate impact claim brought against the Social 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 4 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Security Administration (“SSA”) under the Age Discrimination in Employment Act 

(“ADEA”). Specifically, the district court determined that special factors counseled 

against expanding Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics

to Barnes’ First Amendment retaliation claim. It also held that she had not presented 

appropriate statistical evidence to show that the SSA’s employment practices caused 

a disparate impact on people of a certain age group. This court has jurisdiction under 

28 U.S.C. § 1291, and we affirm the decision of the district court.

When reviewing grants of summary judgment for ADEA claims, this court 

reviews those grants de novo. See Palmer v. United States, 794 F.2d 534, 536 (9th 

Cir. 1986). This court must determine whether there are any “genuine issue[s] of 

material fact and whether the law was correctly applied” by the lower court. Id. We 

view the “evidence in the light most favorable to the [nonmoving] party.” Id. We 

review dismissals of claims de novo. See Vega v. United States, 881 F.3d 1146, 

1152 (9th Cir. 2018).

This case largely centers on the ADEA’s prohibition on discriminating against 

employees or applicants based on age. The statute states that “[a]ll personnel actions 

affecting employees or applicants for employment who are at least 40 years of age 

... shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). 

Disparate impact is one of the theories that can form the basis for an age 

discrimination claim. In order to make out a case for disparate impact under the 
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ADEA, a plaintiff must (1) identify an occurrence of certain outwardly neutral 

employment practices, and (2) show that there was a significantly adverse or 

disproportionate impact on persons of a certain age because of that employment 

practice. See Palmer, 794 F.2d at 538 (internal citation and quotation marks

omitted).

Barnes initially contends that the district court failed to follow this court’s 

mandate when it previously remanded her case. Barnes argues that the mandate 

required the SSA to address why it limited the public notice of the recruitment to 

certain offices. That contention, however, is incorrect. The prior panel only found

that a disparate impact resulting from the SSA’s hiring practices was plausible and 

that the district court thus needed to assess that claim. This is what the district court 

did when it developed the record on this issue. It complied with the court’s mandate. 

Barnes next asserts that the district court incorrectly granted summary 

judgment on her disparate impact claim. The district court found that despite the 

opportunity that Barnes was afforded to present statistical evidence on the ages of 

those who could access the job posting, she failed to present appropriate evidence to 

establish a causal link between the SSA’s employment actions and a disparate impact 

on applicants over the age of 40. While age data was provided for certain categories 

of people who could have seen the posting—namely Boyd Law School students and 

current Peace Corps members—there was no data presented about the ages of Boyd 
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or Peace Corps alumni, students and alumni from other schools who had access to 

Boyd’s online job board, or people within the SSA who were informed of the job 

opening. We agree with the district court that Barnes has not presented the 

appropriate evidence to show a disparate impact on individuals by virtue of their 

age. Thus, the grant of summary judgment was proper.

Nor did the district court err in dismissing Barnes’s First Amendment claim. 

She brough her claim under Bivens v. Six Unknown Named Agents of Fed. Bureau 

of Narcotics, which allows for a limited right to sue federal officers for constitutional 

violations. 403 U.S. 388 (1971). The Supreme Court has recently directly held that 

“there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 596 

U.S. 482, 499 (2022). This claim was thus properly dismissed. 

AFFIRMED.