NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 18-1778 __________

KENDELL CHARLES ALEXANDER, SR., Appellant

v.

ROBERT ORTIZ __________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. No. 1:15-cv-06981) Honorable Jerome B. Simandle, U.S. District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on May 28, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

(Opinion filed: May 29, 2020)

__________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Kendell Alexander, a former federal inmate who worked in his prison’s UNICOR

facility,1 brought a Fifth Amendment claim under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

(1971), against his manager, Robert Ortiz,

for allegedly denying him pay increases, overtime opportunities, and promotions on

account of race. The District Court granted Ortiz’s motion to dismiss. For the following

reasons, we will affirm.2

A. Discussion3

The Supreme Court has “clearly communicate[d] that expanding Bivens beyond

those contexts [it has] already recognized . . . is disfavored.” Bistrian v. Levi,

(3d Cir. 2018). Thus, before allowing a damages remedy for a federal officer’s

constitutional violations, a court must first compare the claim to those previously

recognized under Bivens and ask whether the claim either “arises in a new context or

involves a new category of defendants.” Hernandez v. Mesa,

(2020)

1 UNICOR is a wholly owned corporation of the federal government that seeks to “provide employment for the greatest number of those inmates in [federal] . . . correctional institutions . . . as is reasonably possible.”

(b)(1). 2 The Court appointed Christian J. Pistilli, Esq. and Noam Kutler, Esq. to represent Alexander on appeal. They have ably discharged that responsibility, for which the Court is grateful. 3 The District Court had jurisdiction under

, and we have jurisdiction under

. On appeal, Alexander has not contested the District Court’s dismissal of his First Amendment retaliation claim against Ortiz, so we deem that claim abandoned and will not discuss it here. See Free Speech Coal., Inc. v. Att’y Gen.,

(3d Cir. 2012). 2 (internal quotation marks and citation omitted). If it does, the next question is whether

there are “any special factors [that] counse[l] hesitation” in extending Bivens.

(alterations in original) (internal quotation marks and citation omitted). If the court

answers both questions in the affirmative, it may not expand Bivens to cover the claim.

Alexander argues (1) his claim arises in an existing context and against a category

of defendants the Supreme Court already recognized in Davis v. Passman,

(1979); and (2) even if the context is considered new, no special factors weigh against

creating a Bivens remedy. We reject both contentions.

1. New Context

Alexander challenges the District Court’s determination that his racial

discrimination claim against his UNICOR supervisor arises in a context different from

Davis, which involved a gender discrimination claim against a congressman. See 442

U.S. at 230–31. We think the District Court correctly reasoned that “Davis, while

addressing a Fifth Amendment discrimination claim, concerns a congressional” rather

than “prison employment context.” JA 25.

The Supreme Court’s conception of “new context” is “broad,” Hernandez,

, and includes such considerations as whether a different type of officer is sued

or the officer is subject to different “statutory or other legal mandate[s],” Ziglar v.

Abbasi,

(2017). A UNICOR manager and a congressman are

officers from different branches of the federal government, and as the District Court

recognized, a UNICOR workplace and a congressional office are “vastly different,”

operating under separate sets of legal mandates. JA 25–26.

3 Because “[n]one of the [Supreme Court’s] prior Bivens cases addressed federal

prisoners in the prison employment context,” JA 25, the District Court correctly

determined that Alexander’s claim arises in a new context.

2. Special Factors Counseling Hesitation

Alexander also urges that the District Court erroneously denied him a Bivens

remedy out of concern for the separation of powers. We see no flaw in the District

Court’s special-factors analysis.

The District Court began with the premises that “separation-of-powers principles

are or should be central to the analysis” and that, when considering “whether the

Judiciary is well suited, absent congressional action or instruction, to consider and weigh

the costs and benefits of allowing a damages action to proceed,” any “hesitat[ion] before

answering that question in the affirmative” indicates Congress, not the court, should

decide whether to create a damages remedy. JA 32–33 (quoting Ziglar, 137 S. Ct. at

1857–58).

With this “particularly weighty” concern for not intruding on the other branches in

mind, Bistrian,

, the District Court observed that “the prison workplace is

an area that is heavily regulated by the legislative and executive branches.” JA 34.

Indeed, Congress envisioned that UNICOR would be managed within the executive

branch by a board appointed by the President, see

, and did not suggest

any role for the federal courts. And especially telling is that Congress knew how to

create a remedy for injuries suffered in UNICOR workplaces but chose to do so within

the executive branch and, even then, only for physical injuries. As the District Court

4 pointed out, in

(c)(4), “Congress specifically created a mechanism

[through UNICOR and the Federal Bureau of Prisons] by which prisoners could be

compensated for workplace injuries and illnesses, but did not extend that remedy to other

forms of workplace discrimination or constitutional violations.” JA 33–34; see also 28

C.F.R. pt. 301. We agree this remedial scheme for physical injuries is a strong signal that

Congress did not intend to create a judicially enforceable remedy for constitutional

violations and that any decision to do so must be left to Congress.

In sum, the District Court’s conclusion that “the prison workplace context is a

special factor precluding extending the Bivens remedy,” JA 32, is correct.

B. Conclusion

For the foregoing reasons, we will affirm the District Court’s order dismissing

Alexander’s complaint.

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