Nebraska Beef, Ltd. v. GreeningNebraska Beef, Ltd. v. Greening
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),
I.
Pursuant to the FMIA, the USDA has promulgated a comprehensive regulatory scheme governing meat packing and processing. See
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.
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 interеst. 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 concomitаnt 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 viоlation 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 exрensive 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.
The following year, in Behrens v. Pelletier, the Court restated its holding in Johnson, observing that: “summary judgment determinations are appealаble 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 аnd 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 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, cоmmon 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 sеe 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 rеmedy “is not a logical predicate to the resolution of ... the qualified immunity issue“).
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 expliсitly 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 аgainst individual agency officers. Id.
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 сlaim upon which relief can be granted.