BERNICE BOUIE DONALD, Circuit Judge.
This is an appeal from the district court's dismissal of a claim for money damages brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court found that the existence of an alternate remedial scheme created by statute precluded a judicially-created damages remedy in this case. For the reasons stated herein, we
Plaintiffs-Appellants are the owners, operators, and other parties
During a routine inspection on March 22, 2011, MSHA inspector Tom Middleton noted elevated methane gas readings from behind a seal meant to confine methane and other dangerous gases and prevent entry to the Straight Creek mine's ventilation system. Given the high likelihood of a significant and substantial safety threat, Middleton issued an order ("Imminent Danger Order") under section 107(a) of the Mine Act, 30 U.S.C. § 817(a) and a citation under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). In the event of an accident, which includes an unplanned inundation of a mine by a gas, section 103(k) of the Mine Act, 30 U.S.C. § 817(a), authorizes MSHA agents to issue orders they deem appropriate to ensure safety of any persons in the mine. Acting pursuant to this authorization, Middleton issued a second order ("No Access Order" or "K Order") proscribing Left Fork's access to the mine. The No Access Order closed the mine for all activity, but was modified by Middleton multiple times that day to allow for ventilation, conducting of required examinations, re-energizing of power, monitoring of the seals, and de-watering of the mine. Middleton also issued a second citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a) for maintenance issues related to a crack above mine seals that was allegedly leaking.
Left Fork advised Middleton that the elevated methane readings were likely the result of a faulty ventilation curtain and proposed investigating the situation. But because the No Access Order was already in place, Middleton did not permit access to the mine and Left Fork was required to submit an abatement plan to repair the seals.
The next day, Left Fork complied and submitted an abatement plan seeking approval to repair the crack in the strata above the seal. MSHA did not respond in writing to the submitted abatement plan. Instead, a few days later, on March 29, 2011, Middleton issued an order pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 814(b) ("Abatement Order" or "Original B Order") alleging that Left Fork failed to submit a plan to repair affected seals in accordance with the second
Between May 2011 and January 2012, the No Access Order was modified to remove electrical power and stop all work at the mine. This period was also characterized by a series of back-and-forth negotiations between the parties. Left Fork would submit a plan, the MSHA would request changes, Left Fork would comply, and the MSHA would request more changes. On January 11, 2012, MSHA employee Dannie Lewis inspected the mine and noted numerous hazards. The same day, Lewis modified the Abatement Order ("Modified Abatement Order" or "Modified B Order") to require that Left Fork de-energize all power and withdraw all miners. When the mine was de-energized, underground electric water pumps shut down and the mine began to flood.
On January 17, 2012, Left Fork filed a Notice of Contest before the Federal Mine Safety and Health Review Commission ("Commission") challenging the issuance of the Modified Abatement Order pursuant to section 100.6 of the Mine Act.
Left Fork requested an expedited hearing, which was held on January 30-31, 2012, almost three weeks after the mine began to flood. Notably, Left Fork did not request temporary relief in the interim. On April 3, 2012, an ALJ invalidated the Abatement Order and Modified Abatement Order against Left Fork and held that (1) although the excessive methane levels "did meet the criteria for the application of the safety standard for excessive methane," the MSHA erred in modifying the Abatement Order (which was erroneously issued in the first place), and (2) the MSHA should have either issued a new citation or modified the Imminent Danger Order to achieve the same result of shutting off power and withdrawing miners, concluding "Simply put, the [MSHA] Inspector and his Supervisor chose the wrong method to close down the Straight Creek [] Mine." PageID 30. Neither party appealed from the ALJ's decision.
In its complaint, Left Fork alleged that the MSHA employees violated Left Fork's Fifth Amendment rights to due process of law when they ordered the de-energizing of Straight Creek mine. Left Fork also claimed that when MSHA employees ordered the de-energizing of Straight Creek mine, they did so maliciously and with the knowledge that the mine would flood and cause Left Fork property damage. Left Fork asserts that the MSHA employees were motivated by the desire to retaliate or punish Left Fork over the dispute regarding how to fix the mine seals. Left Fork also alleged a series of state common-law tort claims, including trespass, intentional interference with contract, abuse of process, and civil conspiracy.
In response, the MSHA employees filed a motion to dismiss indicating, inter alia, that Left Fork's state common-law tort claims should be dismissed on absolute immunity grounds and that the Mine Act's statutory scheme precludes a cause of action under Bivens. Alternatively, the MSHA employees argued that Left Fork's allegations did not amount to a constitutional violation and, even if they did, the MSHA employees were entitled to qualified immunity. The district court found that Left Fork did not satisfy the requirements of the Federal Torts Claims Act ("FTCA") for bringing various state common-law tort claims against the MSHA employees and that Left Fork was precluded by the Mine Act from seeking a remedy under Bivens. Having found that Left Fork had no cause of action under Bivens, the district court declined to address the alternate arguments made by the MSHA employees and dismissed Left Fork's case with prejudice.
On appeal, Left Fork does not challenge the district court's dismissal of the state common-law tort claims. Therefore we consider only the dismissal of Left Fork's constitutional claim pursuant to Bivens.
We review de novo the district court's dismissal of a case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Bright v. Gallia Cnty., 753 F.3d 639, 648 (6th Cir.2014); Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir.2008). In so doing, we accept all material allegations contained in the complaint as true, and construe them in the light most favorable to the non-moving party. Top Flight Entm't, Ltd. v. Schuette, 729 F.3d 623, 630 (6th Cir.2013). To the extent that any of the factual assertions are in conflict, we accept the facts as stated by Left Fork in its complaint and consider whether those facts constitute constitutional violations that warrant relief under Bivens. To find that Left Fork's complaint survives a motion to dismiss, we must find that it contains some viable legal theory under which the claimants may seek relief. See Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005); Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d
In Bivens, in the absence of a federal statute that provides for damages against a federal employee for allegedly violating the Constitution, the Supreme Court recognized a limited, implied cause of action against federal employees for particularly egregious violations of the Fourth Amendment in an unlawful search and seizure case brought by a private citizen. See Wheeldin v. Wheeler, 373 U.S. 647, 649-52, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (citing Bivens, 403 U.S. at 390, 91 S.Ct. 1999). The Supreme Court awarded a judicially-created damages remedy, finding that Bivens would otherwise be without any remedy for an unconstitutional invasion of his rights by federal agents. Bivens, 403 U.S. at 390, 91 S.Ct. 1999 (emphasis added). Since then, the Supreme Court has extended the Bivens rationale to allow direct claims arising under the Fifth Amendment. See Thomas v. Shipka, 818 F.2d 496, 500 (6th Cir.1987).
Under Bivens, a plaintiff must initially demonstrate (1) a challenged action attributable to a person acting under color of federal law, and (2) conduct that deprives the party of a constitutionally protected interest. Schweiker v. Chilicky, 487 U.S. 412, 418-21, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). If those elements are satisfied, the Court then proceeds to a two-step inquiry to ascertain whether a Bivens damages remedy should be inferred. Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (citing Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). A Bivens remedy is available only if (1) there are no "alternative, existing process[es]" for protecting a constitutional interest and, (2) even in the absence of an alternative, there are no "special factors counselling hesitation before authorizing a new kind of federal litigation." Id. Left Fork has demonstrated that the challenged action here (the de-energizing of the Straight Creek mine) was attributable to individuals employed by a federal agency (the MSHA) who were acting under color of federal law (the Mine Act). Left Fork has also demonstrated that the de-energizing of the mine resulted in damage to property, ostensibly in violation of the Fifth Amendment, which protects individuals from being "deprived of life, liberty, or property without due process of law." U.S. Const., Amend. V. Accordingly, Left Fork has met the two threshold considerations for a Bivens claim. We therefore proceed to the two-step inquiry outlined in Wilkie.
The district court's careful discussion of the Supreme Court's analysis in Wilkie is persuasive. Because the motion to dismiss was predicated only on the first step of the Wilkie analysis, which is a prerequisite for the second step, the district court appropriately limited its discussion to the first step. The district court properly concluded that the statutory scheme set forth by Congress pursuant to the Mine Act provides an alternative existing process for protecting Left Fork's constitutional interest and therefore precludes Left Fork from invoking a cause of action under Bivens.
Left Fork argues that the Mine Act's remedial structure is insufficient to prevent losses to its property or to subsequently make it whole. Even if Left Fork is correct, it does not mean that an alternative, existing process for protecting its constitutional interest is absent. The opportunity for administrative review under the Mine Act exists precisely so that mine operators and miners can protect their constitutional interests. Indeed, Left Fork utilized this very opportunity in filing a Notice of Contest with the Commission which resulted in the ALJ invalidating the contested orders. After availing itself of this remedy, Left Fork now seeks money damages on account of property loss which occurred during the interim. To the extent that the Mine Act does not permit such relief, Left Fork is correct that there is no "alternative, existing process" for receiving financial compensation. Left Fork is also correct that the ALJ's vacatur of the Abatement Order as issued and modified by the MSHA employees did not prevent the Straight Creek mine from flooding. And while it is true that the Mine Act does not provide a damages remedy when an MSHA employee's order is subsequently deemed invalid, the adequate alternative remedy contemplated by Bivens
As the district court noted, the Supreme Court has made it clear that the lack of money damages for constitutional torts is insufficient to give rise to a new Bivens remedy when an alternative remedial scheme exists, and even in the absence of an alternative, "a Bivens remedy is a subject of judgment." Wilkie, 551 U.S. at 550, 127 S.Ct. 2588, see also Bush, 462 U.S. at 378, 103 S.Ct. 2404. Therefore, the lack of money damages under the Mine Act does not automatically entitle Left Fork to a judicially created remedy under Bivens.
Assuming arguendo that Left Fork's complaint survives the first step of the Bivens test for relief, we next consider whether there are special factors that counsel hesitation before we authorize a new kind of federal litigation for coal mine operators who are regulated by the Mine Act. Given that the motion to dismiss Left Fork's complaint was predicated on the failure to satisfy the first step of the Bivens test for relief, the district court's inquiry did not extend into an explicit analysis of the second step. However, the court indirectly noted that (1) the congressional intent behind the Mine Act (i.e. to provide comprehensive and non-judicial remedies for aggrieved mine operators), and (2) the existence of statutory mechanisms giving meaningful, if not complete, relief, were both special factors that counseled hesitation in authorizing Bivens relief in this case. We agree that special factors counseling hesitation are present in this case.
The first special factor counseling hesitation in this case is that the Mine Act established a comprehensive remedial structure, as explained in detail above. The lack of money damages and judicial review available under the Mine Act should not be presumed to be "inadvertent." Jones v. Tenn. Valley Auth., 948 F.2d 258, 263-64 (6th Cir.1991). ("[C]ourts must give appropriate deference to indications that congressional inaction has not been inadvertent and should not create Bivens remedies when the design of a government program suggests that Congress has provided what it considers to be adequate remedies for constitutional violations.") (emphasis added). Congressional intent based on the legislative history of the Mine Act also supports this presumption. Id. That the plaintiffs cannot seek relief in the form of damages does not compel us to second-guess the remedial scheme devised by Congress by creating a new freestanding claim for damages. Id.
Moreover, the Mine Act expressly authorizes direct judicial review in only two provisions: actions enjoining habitual operator violations of health and safety standards and actions to collect payment of civil penalties. 30 U.S.C. §§ 818(a) and 820(j). Both of these provisions empower the Secretary of Labor to seek district court review but do not afford the same right to mine operators. Thunder Basin, 510 U.S. at 209 & n. 11, 114 S.Ct. 771. Instead, mine operators "are to complain to the Commission and then to the court of appeals." Id. Such a limitation implies that Congress intended challenges by mine operators under the Mine Act to be limited to a single review process. Allowing a Bivens claim to proceed here would be tantamount to a multi-review process.
Further, the Supreme Court has held that "Such `special factors' include the existence of statutory mechanisms giving meaningful remedies against the United States, even though those remedies do not provide `complete relief' to the claimant." Schweiker, 487 U.S. at 423, 108 S.Ct. 2460.
Left Fork argues on appeal that a remedy must be "equally effective" in order to preclude a Bivens claim. Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)(granting a federal prisoner a Bivens remedy for violations of his constitutional rights even though the allegations could also support a suit against the United States under the FTCA). This argument is unpersuasive. If Congress explicitly declares a statutory scheme to be "equally effective" as a constitutional remedy, the availability of a constitutional remedy is eliminated. However, even if Congress does not do so, a constitutional remedy is not automatically available. We must nevertheless consider whether special factors, such as Congressional intent to preclude a judicially-created constitutional remedy, exist. In Carlson, the FTCA would have provided relief to the plaintiff but the Supreme Court allowed a Bivens claim against federal prison officials for Eighth Amendment violations because Congress had not "explicitly declared" that the FTCA was "to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson, 446 U.S. at 18-19, 100 S.Ct. 1468. Indeed, unlike the Mine Act, it is clear that "Congress views FTCA and Bivens as parallel, complementary causes of action ... this provision should be viewed as a counterpart to the Bivens case and its progenty [sic]." Id. at 20, 100 S.Ct. 1468 (citing S.Rep.No.93-588, p. 3 (1973) (legislative history to the 1973 amendment to the FTCA)). Here, Congress has explicitly limited judicial review through the Mine Act.
In addition to Carlson, the Supreme Court has extended Bivens relief in only one other case. See Davis, 442 U.S. at 244, 99 S.Ct. 2264. Like Carlson, Davis diverges significantly from the instant case. Davis involved a secretary to a Congressman who claimed that her Fifth Amendment rights were violated when her employment was terminated on the basis of gender. Davis, 442 U.S. at 244, 99 S.Ct. 2264. For seeking redress, she claimed that she had no effective means of relief other than under Bivens. Id. Despite the existence of a remedy under Title VII, the Supreme Court allowed Davis' discrimination claim because there was no evidence that Congress intended to preclude a judicially created remedy. Davis, 442 U.S. at
Special circumstances notwithstanding, Left Fork claims damages under Bivens because the alleged constitutional violations by the MSHA employees involved improper motive and illegality. See e.g., Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (holding that individuals do not have the right to be free from retaliatory criminal prosecutions unless they were brought without probable cause). Citing to the Mine Act's provisions for imposing criminal penalties against mine operators, 30 U.S.C. § 820(d), Left Fork likens the MSHA employees' actions to those of federal agents in bringing unlawful criminal prosecutions. Left Fork's analogy is inconsonant because the MSHA employees' issuance and modification of the Abatement Order, the action which underlies this lawsuit, only served to de-energize the Straight Creek Mine and withdraw miners; no penalties, civil or criminal, were imposed on Left Creek through the challenged orders. Therefore the element of probable cause that is integral to examining the validity of a criminal prosecution is entirely absent in this case.
Even if a finding of improper motive were to somehow dispense with our consideration of "special circumstances" in this case, Left Fork has done little to show how the MSHA employees' actions stemmed from improper motive, aside from stating that they were. Top Flight, 729 F.3d at 630 (holding that the bald assertion of legal conclusions is not enough to constitute a claim for relief.) Moreover, the record contains no evidence of improper motive. Therefore, we find that Left Fork has not sufficiently pled improper motive in its complaint to withstand a motion to dismiss. "[U]nadorned, the-defendant-unlawfully-harmed-me accusation" is insufficient to support an action. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Fed.R.Civ.P. 12(b)(6)).
Given the Mine Act's comprehensive process for protecting constitutional interests, which expressly incorporates judicial review, we decline to create a judicial remedy in this case. Left Fork is precluded from obtaining relief under Bivens and the district court properly dismissed its complaint for failure to state a claim upon which relief can be granted. For the foregoing reasons, we