Solida v. McKelvey

• Decision Date: 04 May 2016
• Docket Number: No. 13–16808.,13–16808.
• Citation: 820 F.3d 1090
• Parties: Ministerio Roca SOLIDA, aka Solid Rock Ministry, Plaintiff–Appellee, v. Sharon McKELVEY, Manager, Ash Meadows Wildlife Refuge, in her individual capacity, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

820 F.3d 1090

Ministerio Roca SOLIDA, aka Solid Rock Ministry, Plaintiff–Appellee

v.Sharon McKELVEY, Manager, Ash Meadows Wildlife Refuge, in her individual capacity, Defendant–Appellant.

No. 13–16808.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 2015.

Filed May 4, 2016.

Stuart F. Delery, Assistant Attorney General, Washington, D.C.; Daniel G. Bogden, United States Attorney, Las Vegas, NV; Michael S. Raab, and Lowell V. Sturgill, Jr. (argued), Civil Division, Appellate Staff, Washington, D.C., for Defendant–Appellant.

Joseph F. Becker (argued), NPRI Center for Justice and Constitutional Litigation, Reno, NV, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. 2:12–cv–01488–RCJ–VCF.

Before: M. MARGARET McKEOWN, JOHNNIE B. RAWLINSON, and BARRINGTON D. PARKER,^* Circuit Judges.

OPINION

McKEOWN

, Circuit Judge:

This interlocutory appeal addresses the question of whether a federal officer can be sued in her individual capacity for purely injunctive relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)

. The unique, judicially-created Bivens remedy provides plaintiffs an avenue for damages against constitutional violations by federal officers. In this case, Ministerio Roca Solida (“Roca Solida”) seeks relief from the United States and from a federal officer for the allegedly unconstitutional diversion of a stream that once flowed through Roca Solida's church camp property. One sliver of the suit is a Bivens claim against United States Fish and Wildlife Service (“FWS”) officer Sharon McKelvey in her individual capacity. Through its Bivens action, Roca Solida seeks an injunction compelling McKelvey personally to restore the stream to its route through church property and a declaration that her actions violated Roca Solida's constitutional rights, but it does not seek damages against her. The district court denied the government's motion to dismiss, decided that the Bivens claim could proceed, and held that McKelvey was not protected by qualified immunity. Because Roca Solida seeks to compel official government action, and does not seek damages against McKelvey, we conclude that Roca Solida failed to state a Bivens claim against McKelvey in her individual capacity and we reverse.

Background

Roca Solida is a non-profit religious organization that runs a church camp on a parcel of land in Nye County, Nevada. The camp is one of several privately owned parcels within the Ash Meadows National Wildlife Refuge (the “Ash Meadows Refuge”), which historically included a large marsh that falls partially within the Carson Slough. The Slough, a unique and delicate ecosystem, was destroyed by peat-mining, ranching and crop production during the 1960s and 1970s. Since the federal government obtained the Ash Meadows Refuge land in the 1980s, the FWS has been attempting to restore the land to its natural condition. One aspect of the wildlife restoration projects has been to divert water sources previously used for irrigation back to natural channels that lead to the Carson Slough marsh.

Roca Solida purchased 40 acres of land within the boundaries of Ash Meadows in 2006 and built a church camp. A stream that found its source in the Carson Slough has allegedly traversed the property since at least 1881. The church camp used the stream for baptisms and other religious purposes, as well as for recreation and irrigation.

In 2010, Sharon McKelvey, Manager of the Ash Meadows Refuge, began a project to divert water from the stream. Roca Solida claims that the project diverted water into channels on higher ground outside the bounds of the church's property. Deprived of the water that once ran through its property, Roca Solida says it was unable to continue the religious and recreational activities that relied on the stream's water. As a consequence of the diversion, Roca Solida claims that the first measurable rainfall led the channels to overflow, causing at least $86,639 worth of damage to the church property.

Roca Solida asserts a number of constitutional and statutory claims relating to the government's diversion of the stream and the subsequent flooding. Its first amended complaint alleges violations of the Takings Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, the Free Exercise Clause of the First Amendment, and the Federal Tort Claims Act, 28 U.S.C. § 2674

(“FTCA”).

Although Roca Solida sought equitable relief and monetary damages against all of the government defendants, including McKelvey, only the FTCA and Takings Clause claims allege money damages. McKelvey is not the appropriate defendant for either of these damages claims. Roca Solida conceded that “Defendant's substitution of the United States ... is appropriate and warranted under the FTCA.... [and Roca Solida] also believes that the United States is the appropriate defendant for the Takings Claim....” Thus, Roca Solida seeks only declaratory and injunctive relief against McKelvey in her individual capacity, which is the subject of this appeal.¹

McKelvey filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

, arguing that Roca Solida had failed to present a cognizable and plausible claim against her individually under Bivens and that she was, in any event, entitled to qualified immunity. The district court denied McKelvey's motion to dismiss and held, without further clarification, that: “Plaintiff may maintain a Bivens action against McKelvey in her individual capacity for due process, free exercise, and takings violations because the U.S. Supreme Court has not explicitly prohibited Bivens actions for these violations. Additionally, the Court finds that qualified immunity does not apply.”

Two days after filing suit in the District of Nevada, Roca Solida also filed suit in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491

, claiming damages against the United States in excess of $10,000. The Court of Federal Claims dismissed the suit without prejudice because “plaintiff had already filed a complaint against the United States in another court based on substantially the same operative facts.” Ministerio Roca Solida v. United States, 114 Fed.Cl. 571, 572 (2014), aff'd, 778 F.3d 1351 (Fed.Cir.2015), cert. denied sub nom.

Ministerio Roca Solida, Inc. v. United States, ––– U.S. ––––, 136 S.Ct. 479, 193 L.Ed.2d 349 (2015) (mem.). The Federal Circuit affirmed the dismissal. Ministerio Roca Solida, 778 F.3d at 1353 (quoting United States v. Tohono O'Odham Nation, 563 U.S. 307, 131 S.Ct. 1723, 1727, 179 L.Ed.2d 723 (2011) ). In his concurrence, Judge Taranto raised concerns about the jurisdictional bars on Roca Solida's claims. Id. at 1357 (“[This case] may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking....”).²

In September of 2013, McKelvey filed an interlocutory appeal to challenge the denial of qualified immunity and, by necessity, the validity of the underlying Bivens cause of action brought against her in her individual capacity. See Wilkie v. Robbins, 551 U.S. 537, 549 n. 4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007)

(granting jurisdiction for interlocutory appeals where the cause of action was “directly implicated by the defense of qualified immunity”). The individual-capacity claim against McKelvey is the subject of this appeal.

Analysis

This appeal begins and ends with the threshold question of whether a Bivens action can provide the injunctive and declaratory relief that Roca Solida seeks against McKelvey in her individual capacity. In answering no, we join our sister circuits in holding that relief under Bivens does not encompass injunctive and declaratory relief where, as here, the equitable relief sought requires official government action. See Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir.2007)

(“The only remedy available in a Bivens action is an award for monetary damages from defendants in their individual capacities.”); see also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir.2005)

(“Some courts have characterized constitutional claims to enjoin federal officials as Bivens claims [,] .... however, ... a Bivens claim lies against the federal official in his individual capacity—not, as here, against officials in their official capacity.”).

In Bivens, the Supreme Court provided a judicially-created cause of action for damages arising out of constitutional violations by federal officers, holding that “petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the [Fourth] Amendment.” 403 U.S. at 397, 91 S.Ct. 1999

(emphasis added). The Court explained that the remedy filled a gap in cases where sovereign immunity bars a damages action against the United States.

[S]ome form of damages is the only possible remedy for someone in Bivens' alleged position. It will be a rare case indeed in which an individual in Bivens' position will be able to obviate the harm by securing injunctive relief from any court. However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit.... For people in Bivens' shoes, it is damages or nothing.

Id. at 409–10, 91 S.Ct. 1999

. In later cases, the Court continued to emphasize that money damages is the remedy under Bivens. See, e.g.,

Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ( “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official....”); Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) ( “[T]he decision in Bivens established that a citizen suffering a...