F.E. Trotter, Inc. v. Watkins
| Decision Date | 10 March 1989 |
| Docket Number | No. 87-2817,87-2817 |
| Citation | 869 F.2d 1312 |
| Parties | F.E. TROTTER, INC.; W.H. McVay, Inc.; H.C. Cornuelle, Inc., all professional corporations, the duly appointed, qualified and acting Trustee Under the Will and of the Estate of James Campbell, Deceased, acting in their fiduciary and not in their corporate capacities, Plaintiffs-Appellants, v. James D. WATKINS, individually; H.H. Haynes, individually; Timothy C. Kelly, individually; P.W. Drennon, individually; Paul O'Connor, individually; Michael M. Dallam, individually; H. Gray, individually; T.E. Gunn, individually; Wayne K. Goodermote, individually; Harry B. Robins, Jr., individually; J.W. Cook, individually; Jack L. Busekrus, individually; Steven E. Starley, individually; Alan Zusman, individually; PRC SPEAS, a California corporation; PRC Planning & Economics, a California corporation; PRC Engineering, a California corporation, Defendants-Appellees, and J.J. Tanner, individually; Ronald Ahlfeldt, individually; Jerry Fisher, individually; Steven Alverson, individually; Doe Governmental Agencies 1-50, Doe Corporations 1-50, and John Does 1-50, Defendants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wayne Nasser, Ashford & Wriston, Honolulu, Hawaii, for plaintiffs-appellants.
R. Joseph Sher, Dept. of Justice, Washington, D.C., for all defendants-appellees except PRC.
Jerry M. Hiatt, Bays, Deaver, Hiatt, Kawachika & Lezak, Honolulu, Hawaii, for defendant-appellee PRC.
Appeal from the United States District Court for the District of Hawaii.
Before CHOY, O'SCANNLAIN and TROTT, Circuit Judges.
In 1981, pursuant to the Air Installation Compatible Use Zone (AICUZ) Program the Department of the Navy hired PRC Engineering to conduct a study of the operations, procedures and aircraft noise and accident potential of the Naval Air Station, Barbers Point, Oahu, Hawaii. After incorporating changes suggested by the Navy, PRC submitted a draft of this study to the Navy in February, 1984. The Navy released a final version of the study in July 1984. This study examined existing development and proposed land use plans in areas surrounding the station, and explored operational alternatives to mitigate the impacts from aircraft noise and accident potential.
The trustees of the Campbell Estate (Campbell), a major landowner in the vicinity of Barbers Point, filed a complaint in the United States District Court for the District of Hawaii against a number of Navy and PRC officials and employees in their individual capacities. 1 The complaint alleged that the approval, publication and dissemination of the 1984 AICUZ study "significantly impacted and blighted at least 1,793 acres of Plaintiffs' lands." More specifically, the complaint alleged that the preparation of the AICUZ had not been in conformity with applicable regulations and had intentionally overstated aircraft noise and improperly established accident potential zones. In doing so the Navy and PRC allegedly conspired to manipulate data in order to impact Campbell's lands. Claiming that these activities violated their fifth amendment rights, Campbell requested declaratory relief and $160 million in actual and punitive damages.
The district court granted defendants' motion to dismiss these claims, holding that the Navy defendants were entitled to qualified immunity from the damage claims, because the rights allegedly violated by the conduct of defendants were not clearly established at the time of the alleged violation. The court also assumed without deciding that the suit could be brought against the PRC defendants directly under the fifth amendment, according to the principles articulated in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The court then found that the PRC defendants were also entitled to qualified immunity. The court, in a holding not being appealed, also dismissed plaintiffs' claims for declaratory relief without prejudice. Finally, the court found that the complaint was not frivolous nor filed in bad faith, and denied the PRC defendants' motion for attorneys' fees.
The district court denied plaintiffs' motion to alter or amend judgment. The court adhered to its earlier conclusion that the rights allegedly violated were not clearly established rights. It further found that allowing plaintiffs to amend their complaint further would be futile, given that the court had already accepted all the plaintiffs' allegations as true for the purpose of ruling on immunity. The court declined to rule on potential additional grounds for dismissal.
Campbell timely appeals from these orders of dismissal and denial of leave to amend.
For certain constitutional violations, governmental officials may be sued in their individual capacities for monetary damages or injunctive or declaratory relief. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Weiss v. Lehman, 642 F.2d 265 (9th Cir.), vacated and remanded on other grounds, 454 U.S. 807, 102 S.Ct. 80, 70 L.Ed.2d 76 (1981). These actions are often termed "Bivens actions," because they are based on the principles first enunciated in Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Here, the asserted constitutional bases for the suit are the due process and takings clauses of the fifth amendment. The due process guarantees of the fifth amendment, both substantive and procedural may serve as the foundation for a Bivens action. Bothke v. Fluor Eng'rs & Constructors, Inc., 834 F.2d 804, 814 (9th Cir.1987); Davis, 442 U.S. at 228, 99 S.Ct. at 2264. Although we are unaware of any case extending Bivens to the fifth amendment's takings clause, we will assume without deciding that a Bivens action is also available under that constitutional provision.
Federal officials may raise a defense of qualified immunity to a Bivens action. Government officials performing discretionary functions enjoy qualified immunity from civil damages so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Appellants argue that qualified immunity is not available because the functions performed were not discretionary and because the law prevailing at the time of the alleged violations clearly established that the Navy's actions violated the fifth amendment. We are unpersuaded by either claim.
Qualified immunity shields only actions taken pursuant to discretionary functions. See, e.g., Davis v. Scherer, 468 U.S. 183, 196 n. 14, 104 S.Ct. 3012, 3020 n. 14, 82 L.Ed.2d 139 (1984). Campbell contends that qualified immunity does not attach because the Navy defendants' actions constituted breach of non-discretionary, or ministerial, duties. We reject this argument.
An AICUZ study analyzes aircraft noise and accident potential, determines land use compatibility, and explores operational alternatives and potential solutions to existing and potential land use conflicts. No law or regulation precisely specifies how this range of objectives should be accomplished. Indeed, these stated objectives do not lend themselves readily to formulaic determination. In producing an AICUZ the Navy is required to make particularized judgments about the present and potential land use compatibility between a Navy installation and the neighboring community, based on collected and projected data and operational decisions about the feasibility of mitigating the predicted impact. In our view, this exercise of judgment renders the production of an AICUZ a discretionary one. See Gagne v. City of Galveston, 805 F.2d 558, 560 (5th Cir.1986) ().
Appellants contend that the Navy's failure to gather accurate data on current aircraft activity for use in the preparation of the AICUZ should not be considered an exercise of discretionary judgment. Even if we were to accept the premise that these aspects of the AICUZ study constituted ministerial acts of counting and measurement, we would nonetheless reject the conclusion that no immunity attaches to the preparation of an AICUZ. Parsing discretionary acts into their discretionary and ministerial components and protecting only the former would sharply curtail the protection for discretionary duties that qualified immunity is meant to furnish. See Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 464 (1st Cir.1985). Few official actions consist entirely of the unfettered exercise of discretion; most have some ministerial element. In our characterization of a duty as ministerial or discretionary, we therefore consider the duty as a whole. Here, for the reasons given above, we find that the preparation of an AICUZ is a discretionary function.
Appellants' contention that the Navy violated the AICUZ program's procedures and guidelines by miscounting planes and overstating noise levels does not affect our determination that these duties were discretionary. "A law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains discretionary however egregiously it is abused." Davis, 468 U.S. at 196 n. 14, 104 S.Ct. at 3020 n. 14.
Having determined that the Navy's preparation of the AICUZ was a discretionary function, we must now determine whether the Navy defendants were entitled to qualified immunity for their actions. The relevant inquiry is whether a reasonable official could have believed his conduct was lawful in light of clearly established...
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