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 district court 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 . . . .”).