MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

On August 28, 2009, defendants Federal Aviation Administration (FAA), United States Department of Transportation, and United States of America, filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56.1 Plaintiffs Reunion, Inc., Cypress Brake Properties, L.P., and Annandale Investors, L.P. (collectively Reunion) responded in opposition to the motion and filed a cross-motion or partial summary judgment on counts three (Administrative Procedures Act), four (Declaratory Judgment), five (injunction), six (ejectment), seven (unlawful entry and detainer), and eight (summary removal of holdover tenant) insofar as these counts relate to the FAA, Department of Transportation and the United States. A number of events have transpired since the briefing on these motions concluded, including the filing of an amended complaint adding causes of action, including a cause of action under the Freedom of Information Act, as to which claim Reunion has moved for summary judgment. In addition, based on the fact that the United States has filed a separate complaint for condemnation relating to the property involved in this action, defendants herein have recently moved to dismiss portions of plaintiffs' complaint in this cause as moot. The court, having considered these various motions and responses thereto, concludes that the Governments' motion to dismiss should be granted, and that the Owners' motion for partial summary judgment on counts three, four, five, six, seven and eight should be denied.2

The facts giving rise to this lawsuit are briefly set forth below.3 Pursuant to a lease agreement dated December 17, 1996, the United States, through the FAA, leased from Reunion's predecessors in title certain property located in Madison County, Mississippi, for use as a Very High Frequency Omnirange Radar Tactical Air Navigation (VORTAC) facility, which is used in aircraft navigation. Beginning three years prior to the September 30, 2008 termination date established in the lease agreement, Reunion informed the FAA, through a regional FAA representative, that the continued presence of the VORTAC facility on the property conflicted with Reunion's plans for development of the property and that therefore, Reunion did not intend to renew or extend the lease agreement. The FAA initially responded in May 2006 that the FAA had a continuing need for the facility and that, "failing a negotiated resolution, the FAA would `convert' the property to government ownership." Over the next three years, the parties continued in discussions concerning the expiration of the lease, with Reunion taking the position throughout the discussions that the FAA needed to pursue plans for relocating the facility before the lease expired, and the FAA taking the position that the facility in that location was needed, that removal or relocation was not possible, and ultimately, that if Reunion would not extend the lease, the FAA would purchase the property.

In fact, Reunion did not agree to extend the lease, and as of September 30, 2008, the FAA had not taken steps to vacate the property or to condemn the property. Accordingly, on October 16, 2008, Reunion sent a written demand to the FAA that it quit and vacate the VORTAC property. The FAA did not vacate the property, nor did it take appropriate steps to condemn the property, and on April 29, 2009, Reunion filed the present action against the FAA/United States seeking declaratory and injunctive relief under the Declaratory Judgment Act and Administrative Procedures Act and various other state and federal laws, based on allegations that the FAA's failure to timely and correctly follow its own regulations resulted in the FAA's becoming a holdover tenant following expiration of the lease, and that the FAA's continued occupancy of the VORTAC property following expiration of the lease deprived Reunion of its property without due process of law and amounted to a taking without just compensation, in violation of the Fifth Amendment to the United States Constitution. As relief, Reunion sought a declaratory judgment that the FAA and its agents and officials have been unlawfully occupying the VORTAC property since October 1, 2008 in violation of plaintiff's Fifth Amendment rights to due process and that such occupancy is a taking without just compensation, and a declaratory judgment that Reunion is entitled to immediate and exclusive possession of the VORTAC property. Reunion sought an order ejecting and/or removing the FAA from the property and enjoining the FAA, and its agents and servants, from continuing to occupy the property and from resisting Reunion's efforts to oust or remove them from the property.

In addition to its claims against the FAA/United States, Reunion also purported to assert Bivens claims against as-yet-unidentified FAA officials, John Doe One and Jane Doe One, in their individual capacities, for "pursuing a course of action that they knew was in violation of the FAA's own regulations, and that they knew would result in [Reunion] being deprived of [its] property without due process of law, and without just compensation, in violation of [its] rights under the Fifth Amendment," and against FAA officials John Doe Two and Jane Doe Two, in their individual capacities, for continuing to possess the VORTAC property in violation of Reunion's Fifth Amendment right to due process and just compensation.

On April 30, 2009, one day after filing the present action in this court, Reunion filed a separate suit in the Court of Federal Claims, alleging, just as it has here, that the United States has continued to occupy the property after the expiration of the lease without compensation in violation of the Takings Clause of the Fifth Amendment, and also alleging an APA claim based on the same allegation as here, that the FAA has violated its own regulations by failing to vacate plaintiffs' property upon expiration of the lease. See Reunion, Inc. v. U.S., 90 Fed.Cl. 576, 578 (2009). In that action, Reunion additionally asserted a contractual theory for recovery of damages, alleging that when the FAA refused to vacate the VORTAC property upon expiration of the lease, it breached its contractual obligations respecting occupation of the property.

In response to Reunion's complaint in the Court of Federal Claims and a motion by Reunion to strike the Government's jurisdictional defenses, the United States agreed that under the Tucker Act, 28 U.S.C. § 1491, the Court of Federal Claims had jurisdiction over Reunion's takings claim.4 The Government also admitted that a taking had occurred and advised that it would file a condemnation action in the district court by December 31, 2009. In light of that explicit admission, in an opinion entered December 10, 2009, the Court of Federal Claims found the Government was liable for a "temporary taking" of the VORTAC property,5 and that Reunion was entitled to just compensation from the United States for the period between the end of the lease and whatever date the United States ultimately filed its condemnation action in district court.6

On December 31, 2009, the United States, as promised, filed a Complaint in Condemnation and Declaration of Taking in this court pursuant to 40 U.S.C. § 3114, as Civil Action Number 3:09CV269HTWLRA. This filing, as well as the fact that the Court of Federal Claims had issued its opinion establishing the United States' liability on Reunion's takings claim in that court, prompted this court to inquire of the parties as to their respective positions on the effect of these events on the pending motions and/or the issues/causes of action in the present action. In an initial, email response, Reunion acknowledged that as a result of the United States' Declaration of Taking, any claims in this case that concern Reunion's alleged immediate, ongoing right of possession of the VORTAC property have become moot, since by virtue of the Declaration of Taking, the United States now has a legal right to exercise dominion and control over the subject property.7 Reunion thus conceded that counts two (mandamus), five (injunction), six (ejectment), seven (unlawful entry and detainer) and eight (summary removal of holdover tenant) are moot, as is its motion for summary judgment relating to these counts, and it therefore expressly consented to dismissal of these counts without prejudice. Reunion further acknowledged that its claims under the APA (count three) and the Declaratory Judgment Act (count four) "plainly have aspects that relate to Reunion's alleged immediate, ongoing right to possession of the property," and it consented to dismissal of these claims without prejudice "insofar as, but only insofar as" these claims relate to the issue of immediate, ongoing right of possession. However, it was "not yet prepared to say" that these claims are limited to the issue of the immediate, ongoing right of possession,8 and it suggested that it is the Government's burden to show that the Declaration of Taking had mooted these claims in their entirety.

The Government, as had Reunion, initially responded via email, in which it agreed that counts two, five, six, seven and eight, all of which clearly relate solely to Reunion's effort to have the FAA removed from the property, had become moot by virtue of the Declaration of Taking, though the Government took the position that the dismissal should be with prejudice. The Government further contended that count four, for declaratory judgment, has likewise become moot, since Reunion's rights have now been conclusively established by the Declaration of Taking; and it asserted that the APA count has become moot, though no clear basis was identified for this assertion. The United States has since formalized its position with respect to the effect of the Declaration of Taking by filing a motion to dismiss, setting forth its position that the Declaration of Taking has rendered counts two through eight moot. Therein, it also reiterates its position, set forth in its original motion to dismiss, that the Reunion has no cognizable Bivens claim against the Doe and Roe defendants. The court has carefully considered the parties' positions and concludes as follows.

The parties expressly agree that the effect of the Government's Declaration of Taking is to render moot Reunion's claims to establish its right to possession of the subject property to the exclusion of the Government and to remove the Government from the property.9 To the extent there are disagreements between the parties, such disagreements apparently relate only to whether a dismissal of claims on this basis should be with or without prejudice, and whether the APA and/or Declaratory Judgment Act counts are entirely moot, or only partially moot.

As to the first issue, the court is of the opinion that all of Reunion's causes of action involving its alleged right to immediate, ongoing possession of the subject property are permanently moot. Such claims will therefore be dismissed with prejudice. This conclusion clearly applies to counts two, five, six, seven and eight, which indisputably relate solely to this issue. See Hearn v. Sanders, No. CV 09-2220-PA (AGR), 2009 WL 3073128, *4 n. 5 (C.D.Cal. Sept. 19, 2009) ("A dismissal for mootness should be with prejudice `[i]f defendant can never again engage in the challenged conduct.'") (quoting Landers v. Curran & Connors, Inc., No. C 05-03169 WHA, 2006 WL 708948, *2 (N.D.Cal. Mar. 21, 2006)).

In count three of the complaint, brought under the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq., Reunion challenges the FAA's alleged decision to disregard its own regulations and to make itself a holdover tenant following expiration of the lease. As relief, Reunion requests that the court compel the FAA to remove itself from the VORTAC property and "hold unlawful and set aside" the FAA's action in making itself a holdover tenant. Reunion admits that the United States' Declaration of Taking has directly rendered moot the part of this count which seeks to have the FAA removed from the property, but, again, is unwilling to concede that the count is moot in its entirety. In the court's opinion, however, the only relief that was ever available to Reunion under the APA was the FAA's removal from the VORTAC property; and since that relief is no longer available, the entire claim is now moot.

Congress has waived sovereign immunity for cases that fall within the judicial review provisions of the APA, 5 U.S.C. §§ 701-06. Section 702 of the APA states:

5 U.S.C. § 702. Section 704 of the APA provides that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. Under these provisions, in order for a district court to have jurisdiction under the APA in a nonstatutory review action, the claim must be for "relief other than money damages," id. § 702, and there must be "no other adequate remedy in a court," id. § 704. See Bowen v. Massachusetts, 487 U.S. 879, 891-92, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988).

In this case, Reunion's APA count does not demand an award of monetary damages, but rather asks that the FAA be removed from the property and that the FAA's decision to become a holdover tenant be "held unlawful and set aside." In the briefing on the Government's initial motion to dismiss, Reunion took the position that this was clearly a demand for nonmonetary relief and hence cognizable under the APA. For its part, the Government acknowledged that on its face, Reunion's complaint did not ask for monetary relief. The Government maintained, however, that Reunion's putative claims for equitable relief, i.e., injunctive and declaratory relief, were merely disguised claims for monetary damages, which are not cognizable under the APA, see 5 U.S.C. § 702, and/or which are within the exclusive jurisdiction of the Court of Federal Claims under the Tucker Act, see Amoco Prod. Co. v. Hodel, 815 F.2d 352, 361 (5th Cir. 1987) (stating that "a plaintiff cannot avoid Tucker Act jurisdiction simply by characterizing an action as equitable relief"). In response, Reunion pointed out that "[i]f the declaratory or injunctive relief a claimant seeks has significant prospective or considerable value apart from merely determining monetary liability of the government. . . the district court may assume jurisdiction over the nonmonetary claims." Amoco Prod. Co., 815 F.2d at 361-362 (quoting Hahn v. United States, 757 F.2d 581, 590 (3d Cir.1985)). Reunion then declared: "No one can deny that an order recognizing [Reunion's] right to possession of the [property] in question would have `significant prospective effect or considerable value apart from merely determining monetary liability of the government.'"

Given that the United States has filed a Declaration of Taking so that "an order recognizing [Reunion's] right to possession of the [VORTAC property]" is no longer available, the only conceivable remedy available to Reunion if the court were to "hold unlawful and set aside" the FAA's decision to remain in possession of the VORTAC property following expiration of the lease agreement, would be monetary relief. This relief is not available under the APA.10

A similar analysis applies to Reunion's claim for declaratory judgment. The Government initially moved to dismiss Reunion's declaratory judgment claim (as well as most of its other claims) for lack of subject matter jurisdiction on the basis that Reunion's claim was actually a disguised claim for a money judgment in excess of $10,000 and that therefore, jurisdiction properly lay in the Court of Federal Claims under the Tucker Act, 28 U.S.C. §§ 1346(a)(2) & 1491(a). Under the Tucker Act, any claim against the United States exceeding $10,000 in amount, and founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, falls within the exclusive jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1346(a)(2) & 28 U.S.C. § 1491(a)(1); Amoco Prod. Co., 815 F.2d at 358. The Government now takes the position that the claim for declaratory judgment has become moot, since the rights of the parties vis-a-vis the property are clearly established by the Declaration of Taking, which has become effective by operation of law.

A review of the declaratory judgment count shows that, in addition to seeking a declaratory judgment that it is entitled to immediate and exclusive possession of the VORTAC property and is entitled to use self-help to remove defendants from the property — claims which Reunion concedes are moot — count four of Reunion's complaint seeks a declaratory judgment that the FAA and Doe Two and Roe Two have been unlawfully occupying the property since October 1, 2008 in violation of plaintiffs' Fifth Amendment due process rights and their right to just compensation for a taking for public use. The fact that the United States filed a Declaration of Taking on December 31, 2009, and has lawfully occupied the property since that date, obviously moots any request for an adjudication that the FAA's occupancy of the property since that date has been unlawful. However, to the extent Reunion seeks a declaratory judgment that its due process rights were violated and/or that a taking without just compensation occurred due to the FAA's occupancy of the property from the time the lease expired to the date the Declaration of Taking was filed, the claim was not rendered moot by the Declaration of Taking.11 Nevertheless, at least with respect to the takings claim, since the FAA cannot be removed from the property, the only possible aim of the declaratory judgment count at this point would be to establish a right to recover just compensation for the FAA's temporary taking of the property during the period between termination of the lease and the Declaration of Taking; and exclusive jurisdiction over such claim is in the Court of Federal Claims. See Amoco Prod. Co., 815 F.2d at 361 ("[W]here the real effort of the complaining party is to obtain money from the federal government, the exclusive jurisdiction of the [Court of Federal Claims] . . . cannot be evaded or avoided by framing a district court complaint to appear to seek only injunctive, mandatory or declaratory relief against government officials or the government itself.") (citation omitted).12

In light of the Declaration of Taking, Reunion's further claim for a declaratory judgment that its due process rights were violated by defendants' occupancy of the property from the time the lease expired to the date the United States filed its Declaration of Taking, can only be intended as a predicate for monetary liability, and ultimately as a basis for securing monetary relief. However, such monetary relief is not available in this court. The court recognizes that Reunion has asserted in this case a claim for money damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.; yet it has no cognizable claim under the FTCA for any alleged due process violation. See F.D.I.C. v. Meyer, 510 U.S. 471, 477-478, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994) (holding that constitutional tort claim (for alleged violation of due process rights) is not "cognizable" under FTCA, § 1346(b)).13 And while it has undertaken to bring a Bivens claim against the Doe and Roe defendants, the court concludes infra that no Bivens claim is available to them. Therefore, the court concludes that Reunion's declaratory judgment due process claim is, in effect, a claim for money damages, over which this court lacks subject matter jurisdiction. See Strong v. Dept. of Army, 414 F.Supp.2d 625, 630 (S.D.Miss.2005) (finding that Court of Federal Claims had exclusive jurisdiction over due process claim seeking damages of more than $10,000).

Count one of Reunion's complaint is a putative Bivens damages claim against individual FAA officials who are alleged to have violated FAA regulations, resulting in the alleged seizure of Reunion's property without due process of law and without just compensation.14 In Bivens, the Court held that where a Government employee acting under color of federal law violates individual rights, courts may recognize an action for damages against that federal employee. Bivens v. Six Unknown Federal Agents, 403 U.S. 388, 395-96, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, Bivens damages claims are not available for every constitutional violation by federal defendants. Most recently, in Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), the Supreme Court outlined a two-step analysis for whether to imply a Bivens cause of action:

551 U.S. at 550, 127 S.Ct. at 2588.

Ultimately, as Reunion has characterized them, the actions of FAA officials with respect to the VORTAC property lease, and their alleged failure to take appropriate and timely steps to either vacate or condemn the property to avoid becoming a holdover tenant, as dictated by its own regulations, amounted to a decision by the FAA to become a holdover tenant, for which Reunion sought review under the APA. This court herein does hold that relief is no longer available under the APA since the United States has filed its Declaration of Taking. Nevertheless, as Reunion has expressly acknowledged, for that period of time during which the FAA occupied the property after the lease expired but before the Declaration of Taking was filed, the APA provided for review of and explicit (nonmonetary) remedies for the alleged actions by the defendant FAA officials that resulted in Reunion's alleged deprivation of its property without due process.15 See Wilkie, 551 U.S. at 550, 127 S.Ct. 2588 (observing that landowner had an adequate remedy for alleged "unfavorable agency actions," because, "administrative review was available, subject to ultimate judicial review under the APA");16 see also Western Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) (concluding that "the APA leaves no room for Bivens claims based on agency action or inaction," reasoning that "`the design of the APA raises the inference that Congress "expected the Judiciary to stay its Bivens hand' and provides `a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages,' notwithstanding the unavailability of money damages against individual officers or the right to a jury trial") (quoting Wilkie, 551 U.S. at 550, 554, 127 S.Ct. 2588). Furthermore, numerous cases have recognized that a plaintiff does not have an implied cause of action under Bivens for a Fifth Amendment takings claim because there is an express cause of action for such a claim under the Tucker Act, 28 U.S.C. § 1491. See, e.g., Anoushiravani v. Fishel, No. CV 04-212-MO, 2004 WL 1630240, 8-9 (D.Or. July 19, 2004) (stating that "because the Tucker Act, in coordination with the Fifth Amendment, provides an express remedy for plaintiff's takings claim against defendant (federal official), the court does not imply a cause of action for such claims under Bivens"). For these reasons, the court concludes that Reunion's putative Bivens claim should be dismissed.

In conclusion, based on all of the foregoing, it is ordered that defendants' motion to dismiss [Dkt. #7] is granted, and it is further ordered that plaintiffs' motion for partial summary judgment on counts three, four, five, six, seven and eight [Dkt. # 12], is denied. It is further ordered that defendants' motion to dismiss [Dkt. # 25] is granted in part, as set forth herein, but ruling on that part of this motion to dismiss pertaining to Reunion's FOIA claim is reserved at this time.