Ministerio Roca Solida v. Sharon McKelvey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINISTERIO ROCA SOLIDA, AKA No. 13-16808

Solid Rock Ministry,

Plaintiff-Appellee, D.C. No.

2:12-cv-01488-

v. RCJ-VCF

SHARON MCKELVEY, Manager, Ash

Meadows Wildlife Refuge, in her OPINION

individual capacity,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted

November 18, 2015—San Francisco, California

Filed May 4, 2016

Before: M. Margaret McKeown, Johnnie B. Rawlinson,

and Barrington D. Parker,* Circuit Judges.

Opinion by Judge McKeown

*

The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the

U.S. Court of Appeals for the Second Circuit, sitting by designation.

2 MINISTERIO ROCA SALIDA V. MCKELVEY

SUMMARY**

Civil Rights

In an interlocutory appeal, the panel reversed the district

court’s denial of defendants’ motion to dismiss an action,

brought under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and

remanded for further proceedings.

Plaintiff, a non-profit religious organization that runs a

church camp on a parcel of land in Nye County, Nevada,

sought relief against the United States Fish and Wildlife

Service officer Sharon McKelvey in her individual capacity

for the allegedly unconstitutional diversion of a stream that

once flowed through plaintiff’s church camp property.

Plaintiff sought an injunction compelling McKelvey

personally to restore the stream to its route through church

property and a declaration that her actions violated plaintiff’s

constitutional rights, but it did not seek damages against her.

The panel held that relief under Bivens does not

encompass injunctive and declaratory relief where the

equitable relief sought requires official government action.

The panel held that only the United States—through its

officers—had the power to take the action that plaintiff

sought: returning the stream to its previous path through

plaintiff’s land. The panel held that Bivens was both

inappropriate and unnecessary for claims seeking solely

equitable relief against actions by the federal government.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MINISTERIO ROCA SALIDA V. MCKELVEY 3

COUNSEL

Stuart F. Delery, Assistant Attorney General, Washington,

D.C.; Daniel G. Bogden, United States Attorney, Las Vegas,

Nevada; 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, Nevada, for Plaintiff-

Appellee.

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 (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

4 MINISTERIO ROCA SALIDA V. MCKELVEY

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.

MINISTERIO ROCA SALIDA V. MCKELVEY 5

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

6 MINISTERIO ROCA SALIDA V. MCKELVEY

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, 136 S. Ct. 479 (2015) (mem.). The Federal

Circuit affirmed the dismissal. Ministerio Roca Solida,

778 F.3d at 1353 (quoting United States v. Tohono O’Odham

Nation, 131 S. Ct. 1723, 1727 (2011)). In his concurrence,

Judge Taranto raised concerns about the jurisdictional bars on

1

The remaining claims against the other government defendants

continue to move forward in the district court.

MINISTERIO ROCA SALIDA V. MCKELVEY 7

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 (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

2

While we are sympathetic to Roca Solida’s concern that it may not be

able to bring all of its collective claims against the United States in a

single court, either in the Federal Court of Claims or in federal district

court, the split jurisdiction issue arises out of provisions of the Tucker Act

and the Little Tucker Act, 28 U.S.C. §§ 1491 and 1346, which are not at

issue in this appeal.

8 MINISTERIO ROCA SALIDA V. MCKELVEY

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 (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. 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 (1980) (“Bivens

established that the victims of a constitutional violation by a

MINISTERIO ROCA SALIDA V. MCKELVEY 9

federal agent have a right to recover damages against the

official . . . .”); Butz v. Economou, 438 U.S. 478, 504 (1978)

(“[T]he decision in Bivens established that a citizen suffering

a compensable injury to a constitutionally protected interest

could invoke the general federal-question jurisdiction of the

district courts to obtain an award of monetary damages

against the responsible federal official.”).

In Farmer v. Brennan, the Supreme Court addressed

whether courts could grant appropriate equitable relief in a

suit brought under Bivens against individual-capacity

defendants, which also sought equitable relief against

defendants in their official capacity. 511 U.S. 825, 830–31

(1994). The Court concluded that, “[i]f the court finds the

Eighth Amendment’s subjective and objective requirements

satisfied, it may grant appropriate injunctive relief [,]” but

distinguished between the plaintiff’s damages claims against

defendants in their individual capacities and the plaintiff’s

related claims for injunctive relief. Id. at 846, 850–51. The

Tenth Circuit observed that Farmer does not authorize Bivens

actions for injunctive relief, but rather states “only that the

courts could ‘grant appropriate relief’ on a federal prisoner’s

Eighth Amendment claim for damages and injunctive relief

against prison officials in their individual and official

capacities.” Simmat, 413 F.3d at 1228 (quoting Farmer,

511 U.S. at 846) (emphasis added).

Bivens is both inappropriate and unnecessary for claims

seeking solely equitable relief against actions by the federal

government. By definition, Bivens suits are individual

capacity suits and thus cannot enjoin official government

action. In Vaccaro v. Dobre, we distinguished between

damages actions against individuals under Bivens and actions

for injunctive relief against the United States or its officers in

10 MINISTERIO ROCA SALIDA V. MCKELVEY

their official capacity. 81 F.3d 854, 856 (9th Cir. 1996). As

the Tenth Circuit succinctly put it, “There is no such animal

as a Bivens suit against a public official tortfeasor in his or

her official capacity.” Farmer v. Perrill, 275 F.3d 958, 963

(10th Cir. 2001).

An action against an officer, operating in his or her

official capacity as a United States agent, operates as a claim

against the United States. See id. In dismissing a Bivens

action, we explained that:

[The plaintiff] seeks to enjoin various

individual government officials, based on

[Bivens]. Bivens created a remedy for

violations of constitutional rights committed

by federal officials acting in their individual

capacities. In a paradigmatic Bivens action, a

plaintiff seeks to impose personal liability

upon a federal official based on alleged

constitutional infringements he or she

committed against the plaintiff. . . . This is

because a Bivens suit against a defendant in

his or her official capacity would merely be

another way of pleading an action against the

United States, which would be barred by the

doctrine of sovereign immunity. . . .

Here, [the plaintiff] has sued various

Federal officials in their official capacities. It

seeks to enjoin official action . . . [and] does

not claim damages based on the past

unconstitutional acts of Federal officials in

their individual capacities. Therefore, the

district court lacked subject matter jurisdiction

MINISTERIO ROCA SALIDA V. MCKELVEY 11

over the claim because the United States has

not consented to its officials being sued in

their official capacities.

Consejo de Desarrollo Economico de Mexicali, A.C. v.

United States, 482 F.3d 1157, 1173 (9th Cir. 2007).

This same principle came into play in a suit against the

U.S. Navy: “Because the plaintiff seeks injunctive relief,

which can be enforced only against a federal agency, and not

damages against an individual federal officer for the alleged

violation of the plaintiff’s constitutional rights, Bivens does

not provide the plaintiff an avenue for the relief he seeks.”

Abou-Hussein v. Mabus, 953 F. Supp. 2d 251, 264 (D.D.C.

2013) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001) (explaining that in contrast to injunctive relief, “we

have never considered [the Bivens remedy] a proper vehicle

for altering an entity’s policy”)).

We do not view the Seventh Circuit’s broad statement on

Bivens to undermine these well-established principles

distinguishing individual and official capacity suits. In

rejecting a categorical denial of Bivens actions that seek

purely equitable relief, the court observed that: “A Bivens

claim can be brought as an allegation that a constitutional

injury arose out of the actions of federal agents—regardless

of the nature of the relief sought.” Bunn v. Conley, 309 F.3d

1002, 1009 (7th Cir. 2002) (citing Farmer, 511 U.S. at 851).

However, the Seventh Circuit found that Bivens did not

provide a cause of action in Bunn because, “Bivens claims are

brought against the relevant officials in their individual

12 MINISTERIO ROCA SALIDA V. MCKELVEY

capacity, and [this] is plainly an official capacity action.”

Bunn, 309 F.3d at 1009.3

In this case, only the United States—through its

officers—has the power to take the action that Roca Solida

seeks: returning the stream to its previous path through Roca

Solida’s land.4 The Ash Meadows Refuge Manager might be

capable of effecting the remedy Roca Solida seeks, but

McKelvey as an individual has no authority to do so. A

Bivens action is not necessary in suits, such as this one, which

seek equitable relief against the federal government, because

the Administrative Procedure Act waives sovereign immunity

for such claims. 5 U.S.C. § 702 (“An action in a court of the

United States seeking relief other than money damages and

stating a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity or under

color of legal authority shall not be dismissed nor relief

therein be denied on the ground that it is against the United

States . . . .”). Roca Solida may yet be able to obtain the

equitable relief it wants, just not against McKelvey as an

individual.

3

We are likewise untroubled by the passing reference to injunctive relief

in F.E. Trotter, Inc. v. Watkins: “For certain constitutional violations,

governmental officials may be sued in their individual capacities for

monetary damages or injunctive or declaratory relief. These actions are

often termed ‘Bivens actions’ . . . .” 869 F.2d 1312, 1314 (9th Cir. 1989)

(citations omitted). The issue on appeal in Trotter related to qualified

immunity for monetary damages claims. The claims for declaratory relief

were dismissed in the district court and were not on appeal. Id. at 1313.

4

Roca Solida has been consistent in its aim. The Federal Circuit

observed that: “Roca Solida has made clear that its main aim has been to

secure restoration of the diverted stream to the path it once took through

Roca Solida’s land.” Ministerio Roca Solida, 778 F.3d at 1358.

MINISTERIO ROCA SALIDA V. MCKELVEY 13

Because “[d]ismissal can be based on the lack of a

cognizable legal theory,” Balistreri v. Pacifica Police Dep’t,

901 F.2d 696, 699 (9th Cir. 1988), Roca Solida’s failure to

state a cognizable Bivens action against McKelvey calls for

dismissal of the claim against her. Consequently, we do not

reach the question of whether alternative statutory avenues

for relief would also preclude a Bivens action.5 Because Roca

Solida does not seek damages against McKelvey, we likewise

need not reach the issue of qualified immunity.6 McKelvey’s

motion to dismiss for failure to state a claim should have been

granted.

REVERSED AND REMANDED.

5

In Wilkie, the Supreme Court set out the two-step analysis to determine

if a Bivens action is appropriate. First, the court must determine “whether

any alternative, existing process for protecting the interest amounts to a

convincing reason for the Judicial Branch to refrain from providing a new

and freestanding remedy . . . .” 551 U.S. at 550. If a statutory alternative

is not available, then the court must still determine if there are “factors

counselling hesitation” before finding a cause of action under Bivens. Id.

6

It is well understood that “[q]ualified immunity is only an immunity

from a suit for money damages, and does not provide immunity from a

suit seeking declaratory or injunctive relief.” Hydrick v. Hunter, 669 F.3d

937, 939–40 (9th Cir. 2012); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2080 (2011) (“Qualified immunity shields federal and state officials from

money damages . . . .”).