Summary of a Recent
Judicial Development in
Administrative Law

Bivens Remedy Not Available in Action
Against Federal Meat Inspectors

Harrison M. Pittman
Staff Attorney

Summary of Decision

In Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir. 2005), the United States Court of Appeals for the Eighth Circuit dismissed an action brought by the operator of a meat processing facility against federal meat inspectors because the operator lacked a remedy for which it could bring an action against federal officials or employees.

Background

"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 . . . 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.'" Id. (quoting McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir. 1988)). In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized that an action may be brought against a government official or employee "if no equally effective remedy is available, no explicit congressional declaration precludes recovery, and no 'special factors counsel hesitation.'" BLACK'S LAW DICTIONARY 169 (6th ed. 1990) (quoting Rauschenburg v. Williamson, 785 F.2d 985 (11th Cir. 1986)). See also Nebraska Beef, 398 F.3d 1080, 1082n.1 (stating that Bivens "allows tort actions against federal officials and employees directly under the Constitution.") (citing Estate of Rosenburg by Rosenburg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995)).

In September of 2002, federal meat inspectors issued multiple Noncompliance Records for perceived regulatory violations on the part of plaintiff Nebraska Beef, Ltd. See id. at 1082. The plaintiff brought a Bivens action against the inspectors alleging damages to its reputation and business. See id. The inspectors filed a motion to dismiss, arguing that the plaintiff's action was barred because a Bivens remedy was not available to the plaintiff. See id. The federal district court denied the inspectors' motion and the inspectors appealed to the Eighth Circuit. See id.

Analysis and Holding

The court explained that the Supreme Court has been reluctant to extend Bivens remedies into new contexts and has declined to create new 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. (citation omitted). It further explained that when Congress has established a comprehensive regulatory scheme, the presence of a right of judicial review under the Administrative Procedures Act (APA) is sufficient to bar a Bivens action. See id. (citation omitted).

The court held that a Bivens remedy was not available to the operator. See id. It stated that

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 . . . that includes the right to judicial review under the APA. Finally, Congress has created a stringent exhaustion requirement for grievances filed against USDA employees . . . [under 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.

Id.

The court reversed the decision of the district court and remanded the matter with instructions to dismiss the complaint for failure to state a claim upon which relief can be granted. See id. at 1085.

The case was decided on February 28, 2005; this summary was posted July 29, 2005.