Nebraska Beef, Ltd. v. Greening

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1918

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Nebraska Beef, Ltd., *

*

Plaintiff/Appellee, *

*

v. *

* Appeal from the United States

Dennis Greening; Donald Seitz; * District Court for the

Chander Dev; Duane Shonka; * District of Nebraska.

Michael Fast, *

*

Defendants/Appellants, *

*

John Doe, 1, Other FSIS Employees; *

Jane Doe, 1, Other FSIS Employees; *

John Doe, 2, Other FSIS Employees; *

Jane Doe, 2, Other FSIS Employees, *

*

Defendants. *

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Submitted: December 16, 2004

Filed: February 28, 2005

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Before WOLLMAN, MAGILL, and COLLOTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Nebraska Beef, Ltd., brought a Bivens1 suit against federal food safety

inspectors (Inspectors) from the United States Department of Agriculture (USDA)

based on actions taken by the Inspectors pursuant to the Federal Meat Inspection Act

(FMIA), 21 U.S.C. § 601 et. seq. The Inspectors appeal from the district court’s

denial of their motion to dismiss on the basis of qualified immunity. Because a

Bivens remedy is not available to Nebraska Beef, we reverse.

I.

Pursuant to the FMIA, the USDA has promulgated a comprehensive regulatory

scheme governing meat packing and processing. See 9 C.F.R. pt. 417. Nebraska

Beef operates a packing and processing plant subject to inspection under the FMIA

and its implementing regulations. On September 3, 2002, the Inspectors conducted

a public health assessment of Nebraska Beef’s plant and issued Noncompliance

Records (NRs) for perceived regulatory violations. Following several procedural

actions, Nebraska Beef and the USDA entered into a mutual consent decision to

resolve the NRs. According to Nebraska Beef, the Inspectors maliciously issued

fifty-eight additional NRs in contravention of the consent decision.

Nebraska Beef initiated a Bivens action against the Inspectors for damages to

its reputation and business. The Inspectors filed a motion to dismiss on several

grounds including qualified immunity and the nonavailability to Nebraska Beef of a

Bivens remedy. It is from the denial of that motion that the Inspectors filed this

interlocutory appeal.

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971). Bivens allows tort actions against federal officials and employees

directly under the Constitution. See Estate of Rosenberg by Rosenberg v. Crandell,

56 F.3d 35, 36 (8th Cir. 1995).

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II.

Nebraska Beef asserts that we lack jurisdiction to consider the availability of

a Bivens remedy. The Supreme Court first recognized jurisdiction over an

interlocutory appeal from a denial of qualified immunity in Mitchell v. Forsyth, 472

U.S. 511 (1985). In Drake v. Scott, we held that this jurisdiction encompassed the

related issue of whether a complaint failed to state a claim, holding that when an

interlocutory appeal of a denial of qualified immunity is properly before us, we may

decide “closely related issues of law.” 812 F.2d 395, 399 (8th Cir. 1987), aff’d on

reh’g, 823 F.2d 239 (8th Cir. 1987). The defendants in Drake had asserted qualified

immunity but had also argued that Drake’s due-process claim failed as a matter of law

because Drake had no property interest. Id. at 398. We noted that “[i]f Drake

possesses no property interest, he cannot succeed on his claim, and we need not reach

the immunity issue.” Id. at 399. We observed that the property-interest question was

“analytically antecedent to, and in a sense also pendent to, the qualified-immunity

issue.” Id.

Subsequent to Drake, the Supreme Court considered a Bivens claim that

alleged an infringement of Fifth Amendment due-process “liberty interests” in Siegert

v. Gilley, 500 U.S. 226, 229 (1991). The Supreme Court instructed that:

A necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is ‘clearly established’ at the

time the defendant acted is the determination of whether the plaintiff has

asserted a violation of a constitutional right at all. Decision of this

purely legal question permits courts expeditiously to weed out suits

which fail the test without requiring a defendant who rightly claims

qualified immunity to engage in expensive and time consuming

preparation to defend the suit on its merits. One of the purposes of

immunity, absolute or qualified, is to spare a defendant not only

unwarranted liability, but unwarranted demands customarily imposed

upon those defending a long drawn out lawsuit.

Id. at 232.

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The Supreme Court revisited the jurisdictional limits of an interlocutory appeal

from a denial of qualified immunity in Johnson v. Jones, 515 U.S. 304 (1995). The

Court examined whether appellate courts had jurisdiction to consider pretrial

“evidence insufficiency” claims in an interlocutory appeal from the denial of qualified

immunity. Id. at 308. The Court stressed that the issue on appeal concerned “a fact-

related dispute” as to whether the pretrial record contained evidence sufficient to

show a genuine issue of fact for trial. Id. at 307 (original emphasis). The Court

cautioned against expansive jurisdiction, observing that an interlocutory appeal “can

threaten [district court] proceedings with delay, adding costs and diminishing

coherence” and that such an appeal “risks additional, and unnecessary, appellate court

work either when it presents appellate courts with less developed records or when it

brings them appeals that, had the trial simply proceeded, would have turned out to be

unnecessary.” Id. at 309. The Court concluded that a question involving only

evidence sufficiency, i.e., which facts a party may be able to prove at trial, is not

appealable. Id. at 313.

The following year, in Behrens v. Pelletier, the Court restated its holding in

Johnson, observing that: “summary judgment determinations are appealable when

they resolve a dispute concerning an abstract issue of law relating to qualified

immunity—typically, the issue whether the federal right allegedly infringed was

‘clearly’ established.” 516 U.S. 299, 313 (1996) (internal citations and quotations

omitted) (original emphasis).

The question before us, then, is whether, in light of Siegert, Johnson, and

Behrens, the availability of a Bivens remedy is an issue of law that is “closely related”

to or “inextricably intertwined” with the denial of qualified immunity.2 Although the

2

In Kincade v. City of Blue Springs, Mo, 64 F.3d 389, 394-95 (8th Cir. 1995),

we equated our “closely related” definition to the “inextricably intertwined” language

used in Swint v. Chambers County Comm’n, 514 U.S. 35 (1995). Cf. Prescott v.

Little Six, Inc., 387 F.3d 753, 756 n. 2 (8th Cir. 2004).

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lack of a Bivens remedy would not entitle the plaintiffs to qualified immunity,3 the

issue is “analytically antecedent to, and in a sense also pendent to, the qualified

immunity issue.” Drake, 812 F.2d at 399. It is a purely legal question that presents

none of the judicial economy concerns addressed in Johnson. In fact, common sense

tells us that addressing this potentially dispositive legal question serves the interests

of judicial economy. If we remanded to the district court and the plaintiffs prevailed

at trial, we would likely see the same appeal again, after the cost and time of litigating

a lawsuit which, if no Bivens remedy exists, is doomed from its inception.

Accordingly, we conclude that we have jurisdiction to consider the availability of a

Bivens remedy. See Moreno v. Small Bus. Admin., 877 F.2d 715, 716 (8th Cir. 1989)

(question of qualified immunity on interlocutory appeal is moot when Bivens action

is precluded by comprehensive regulatory scheme); see also Hill v. Dep’t of the Air

Force, 884 F.2d 1318, 1320 (10th Cir. 1989) (deciding interlocutory appeal based on

lack of Bivens remedy and not reaching issue of qualified immunity); cf. Merritt v.

Shuttle, Inc., 187 F.3d 263, 268-69 (2d Cir. 1999) (resolving predicate issue of

subject matter jurisdiction is “necessary to ensure meaningful review of” denial of

qualified immunity). But see Triad Assocs., Inc. v. Robinson, 10 F.3d 492, 496-97

n. 2 (7th Cir. 1993) (refusing to extend pendent jurisdiction to “collateral” legal issues

of standing unrelated to qualified immunity and finding no “‘compelling reasons’ for

not deferring the limitations questions until the end of the lawsuit”); Kwai Fun Wong

v. United States, 373 F.3d 952, 961 (9th Cir. 2004) (stating that resolving the

availability of a Bivens remedy “is not a logical predicate to the resolution of. . . the

qualified immunity issue”).

3

We note that dictum in Buchholz v. Aldaya 210 F.3d 862 (8th Cir. 2000)

suggests otherwise. We stated in Buchholz, citing Drake, that “[i]f defendants prevail

on [establishing that Buchholz has no cause of action], ‘it follows a fortiori’ they are

entitled to qualified immunity.” Id. at 865. This assertion, which had no effect on the

holding in Buchholz, does not inexorably flow from our holding in Drake.

Concluding that a Bivens action is unavailable precludes the need to decide whether

the defendants are entitled to qualified immunity; it does not entitle them to qualified

immunity.

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III.

The Supreme Court has been wary of extending Bivens remedies into new

contexts, Schweiker v. Chilicky, 487 U.S. 412, 421 (1988), and has not created

additional Bivens remedies “[w]hen the design of a Government program suggests

that Congress has provided what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course of its administration.” Id. at

423. We have noted that this is the case even when the administrative remedy does

not provide complete relief. Sinclair v. Hawke, 314 F.3d 934, 940 (8th Cir. 2003).

There is a “presumption against judicial recognition of direct actions for

violations of the Constitution by federal officials or employees,” and “[i]f Congress

has not explicitly created such a right of action, and if it has created other remedies

to vindicate (though less completely) the particular rights being asserted in a given

case, the chances are that the courts will leave the parties to the remedies Congress

has expressly created for them.” McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir.

1988). When Congress has created a comprehensive regulatory regime, the existence

of a right to judicial review under the APA is sufficient to preclude a Bivens action.

Sinclair, 314 F.3d at 940. Parties may not avoid administrative review simply by

fashioning their attack on an agency decision as a constitutional tort claim against

individual agency officers. Id.

Three factors counsel against extending a Bivens remedy to an action brought

against the Inspectors. First, Congress has not explicitly created any direct right of

action against USDA employees alleged to have committed constitutional violations.

Second, the USDA has promulgated a comprehensive regulatory scheme pursuant to

the FMIA that includes the right to judicial review under the APA.4 Finally, Congress

4

These procedures include provisions for an administrative appeal from an

adverse decision by a USDA inspector. See 9 C.F.R. §§ 500.2(c) and 500.5 (2005).

The Secretary of Agriculture has also promulgated “Uniform Rules of Practice”

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has created a stringent exhaustion requirement for grievances filed against USDA

employees, see 7 U.S.C. § 6912(e), which further evidences its intent to have

grievances aired to and addressed by the agency prior to our review.

Given the above factors, as well as the Supreme Court’s caution against

extending Bivens remedies to new contexts, we conclude that such a remedy is not

available to Nebraska Beef. Cf. Sinclair, 314 F.3d at 942-43 (observing that personal

liability for bank regulators in the “complex regulatory environment” of the banking

industry is for Congress to decide). Because we resolve the instant case on the lack

of a Bivens remedy, we do not reach the issue of qualified immunity. We reverse the

district court’s denial of the Inspector’s motion to dismiss and remand with an order

to dismiss the complaint for failure to state a claim upon which relief can be granted.

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which establish procedures for making an appeal to the agency. See 7 C.F.R. § 1.130

et. seq. (2005). Under those regulations, an aggrieved party may file a complaint if

there “is reason to believe that a person has violated or is violating any provision of

[inter alia, the FMIA] or of any regulation, standard, instruction or order issued

pursuant thereto.” Id. at § 1.133(b)(1). A final order by the USDA’s Judicial Officer

is subject to judicial review. Id. at § 1.145(i).

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