Western Radio Services Co. v. U.S. Forest Service

• Decision Date: 21 August 2009
• Docket Number: No. 08-35186.,08-35186.
• Citation: 578 F.3d 1116
• Parties: WESTERN RADIO SERVICES CO.; Richard L. Oberdorfer, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Larry Timchak; Jim McMillin; Bob Rock; Kristen Bail; Jim Sauser; Diana Hsieh, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

578 F.3d 1116

WESTERN RADIO SERVICES CO.; Richard L. Oberdorfer, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Larry Timchak; Jim McMillin; Bob Rock; Kristen Bail; Jim Sauser; Diana Hsieh, Defendants-Appellees.

No. 08-35186.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2009.

Filed August 21, 2009.

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

Kevin Danielson, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, Chief District Judge, Presiding.

Before WILLIAM A. FLETCHER, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),¹ and the Administrative Procedure 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 additional 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.

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

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, 114 S.Ct. 996, 127 L.Ed.2d 308 (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 recognize an implied right of action under Bivens against the individual Forest Service officers for their alleged violations of Western's constitutional rights.

A

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, ___ U.S. ___, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (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, 91 S.Ct. 1999. 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, 99 S.Ct. 2264, 60 L.Ed.2d 846 (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, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

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, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). The Court has focused increased scrutiny on whether Congress intended the courts to 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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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, 108 S.Ct. 2460, 101 L.Ed.2d 370 (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,...