Munsell v. Dept. of Agriculture, 509 F.3d 572 (D.C. Cir. 2007). | jgersen | August 20, 2017


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Munsell v. Dept. of Agriculture, 509 F.3d 572 (D.C. Cir. 2007).

Munsell v. Dept. of Agriculture, 509 F.3d 572 (D.C. Cir. 2007) provides an overview the statutory history of the Meat Inspection Act, the Poultry Products Inspection Act, and the Food Safety Inspection Service—the other major federal food inspection agency. Although all of the claims brought were eventually dismissed, the case illustrates a fairly common procedural posture for those hoping to challenge the inspection regime.

EDWARDS, Senior Circuit Judge:

In October 2004, appellants, Montana Quality Foods and Processing, Inc. and its president John W. Munsell (“Munsell/MQF”), filed a lawsuit in District Court against the Department of Agriculture (“USDA”), the Secretary of Agriculture in his official capacity, and Nathaniel Clark, who was then the District Office Manager of USDA's Food Safety and Inspection Service (“FSIS”) in Minneapolis, Minnesota, in his personal capacity. Munsell/MQF claimed that FSIS officials used USDA enforcement powers to retaliate against Munsell for statements he made concerning USDA's handling of an E. coli outbreak in 2002. In August 2005, appellants filed an amended complaint, adding as a plaintiff the American Association of Meat Processors (“AAMP”), a trade association representing small meat processors that are subject to USDA inspection and oversight. Munsell/MQF, on their own behalf, and AAMP, on behalf of its association members, each sought declaratory and injunctive relief, presumably under the Administrative Procedure Act (“APA”), challenging a USDA enforcement Directive and seeking protection from future acts of retaliation by FSIS officials. Munsell/MQF also sought a money damages remedy 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), on the grounds that Munsell's First Amendment rights were violated when agency officials retaliated against him.
In 2005, during the course of the litigation in the District Court, Munsell sold all of MQF's meat processing facilities, thereby eliminating all of MQF's business operations that were subject to USDA regulation and oversight. The Government filed a motion to dismiss, challenging appellants' standing, claiming that the action by Munsell/MQF was moot, and asserting that the entire action should be dismissed because appellants had failed to exhaust their administrative remedies. The District Court declined to rule on standing and mootness and instead granted the motion to dismiss **48 *575 on exhaustion grounds. The District Court first held that the governing statutory exhaustion requirement under 7 U.S.C. § 6912(e) is jurisdictional. The District Court then determined that appellants had failed to exhaust the applicable administrative appeal procedure prescribed by 9 C.F.R. § 306.5, concluded that the court lacked subject matter jurisdiction, and dismissed all of appellants' APA claims. The District Court also found that Munsell/MQF's Bivens action was barred due to their failure to exhaust administrative remedies. Munsell v. Dept. of Agric., 435 F.Supp.2d 149 (D.D.C.2006). Munsell/MQF and AAMP appealed the District Court's dismissal, and the Government parties cross-appealed on standing and mootness. Guided by the Supreme Court's decision in Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), and other relevant precedent, we hold that 7 U.S.C. § 6912(e) does not impose a jurisdictional exhaustion requirement. We therefore conclude that the District Court erred in holding that plaintiffs' failure to exhaust their administrative remedies deprived the court of subject matter jurisdiction.
We affirm the judgment in favor of appellees on different grounds, however. First, we affirm the dismissal of Munsell/MQF's claims for injunctive and declaratory relief on standing and mootness grounds. Second, we affirm the dismissal of Munsell/MQF's Bivens action, because, even assuming that such an action might lie against USDA officials, Munsell/MQF failed to exhaust their administrative remedies before seeking judicial relief on their constitutional claims. Third, we dismiss for want of standing AAMP's action seeking protection for its members from future acts of retaliation by USDA, and dismiss AAMP's claims on behalf of Munsell/MQF as moot. Finally, although we find that the action filed by AAMP challenging USDA's enforcement Directive on behalf of its members is not moot and it does not fail for want of standing or exhaustion, we affirm the dismissal of AAMP's action for injunctive and declaratory relief because it is unripe for judicial review.
Congress enacted the Federal Meat Inspection Act in 1907 in response to unsanitary conditions in the nation's meat packing industry. The purpose of the Act is to assure that meat and meat food products are “wholesome, not adulterated, and properly marked, labeled, and packaged.” 21 U.S.C. § 602. The Act directs USDA to inspect the sanitary conditions of meat processing plants and to “prescribe the rules and regulations of sanitation under which these establishments [are] maintained.” Id. § 608. The Act grants the Secretary authority to “make such rules and regulations as are necessary for the efficient execution” of the Act. Id. § 621.
In 1996, USDA's FSIS issued a final rule requiring all meat processing plants to develop and implement controls to address food safety hazards that are likely to occur in their operation. See 61 Fed.Reg. 38,806 (July 25, 1996). This regulation is known as Hazard Analysis and Critical Control Point (“HACCP”). See 9 C.F.R. pt. 417. Under HACCP, plants are given considerable flexibility to design plans that achieve the ends of preventing food safety hazards. See id. § 417.2. FSIS inspectors evaluate plants' hazard prevention through direct observation and testing, and by examining plants' records. See id. § 417.8.
There are a range of enforcement actions that FSIS may take, including withholding the mark of inspection from meat products or suspending the assignment of inspectors to a plant. See 9 C.F.R. pt. 500. Without USDA approval, a meat processing **49 *576 plant is effectively expelled from the marketplace. These enforcement actions can be financially ruinous, especially for smaller firms.
FSIS actions regulating meat processors may be appealed administratively. Id. §§ 500.5(c)-(e). Enforcement actions that are not held “in abeyance” can be appealed through a formal hearing process. Id. § 500.5(d). However, when an enforcement action is held in abeyance, administrative appeals must be made to the “immediate supervisor” of the official making the enforcement determination. Id. §§ 306.5, 500.5(c).
Munsell's family first started operating a meat processing plant in Montana in 1946. Am. Compl. ¶ 14, Joint Appendix (“JA”) 19. During the time frame relevant to this case, the processing plant was incorporated in the name of MQF, with Munsell as MQF's chief executive officer and owner. MQF's meat processing business typically bought ten-pound lots of coarse ground beef (“chubs”) from larger meat suppliers and further processed the beef for sale to individual consumers. Id. ¶ 15, JA 19. The plant was subject to inspection and regulation by USDA under the Federal Meat Inspection Act.
For a time preceding the events leading to this litigation, Munsell had been displeased with USDA's oversight of MQF's meat processing operation. In September 2001, he urged agency officials to adopt two procedural changes that he believed would protect small meat processors from economic harm resulting from contamination at large meat facilities. In particular, Munsell suggested the segregation of large plant meat products and the creation of a record of source beef to facilitate the traceback of adulterated meat to contamination in large plants. Id. ¶ 30, JA 24. FSIS officials declined to adopt Munsell's recommendations.
Roughly five months later, on January 28, 2002, FSIS alerted Munsell that a ground beef sample taken from MQF's facilities five days prior tested positive for E. coli contamination. Id. ¶ 21, JA 21. Munsell voluntarily agreed to recall 270 pounds of ground beef he had provided to customers. Id. MQF was also required to reassess its HACCP and submit to 15 days of sampling of its products. Id. ¶ 22, JA 21–22.
Two days later, Munsell asked FSIS officials to test unopened chubs of beef that MQF had on hand from the two firms that had supplied the coarse ground beef that had tested positive for E. coli on January 28. But FSIS officials declined to test the unopened chubs of beef. Id. ¶ 25, JA 22. Based on his fear that a large supplier was distributing contaminated beef, Munsell began segregating his meat by supplier, to more readily facilitate traceback to identify the source of any new contamination. Id. ¶ 26, JA 22–23.
Shortly thereafter, Munsell complained to Nathaniel Clark, the District Office Manager of the Minneapolis office of the FSIS, about how FSIS was handling the E. coli outbreak, and reiterated his belief that procedures needed to be put in place to traceback contaminated meat found at small processors. An FSIS official continued taking samples of MQF's meat between February 19 and 21, 2002, and again found E. coli contamination. Based on his earlier segregation of meat by supplier, Munsell determined that the source of the contamination was a large supplier, ConAgra. Id. ¶ 26, JA 23. The next day Munsell requested FSIS officials to test an unopened chub—before it passed through MQF's facility—to confirm that ConAgra was the source of the contamination. FSIS officials refused. Id. ¶ 27, JA 23.
During the month of February 2002, Munsell also communicated with congressional **50 *577 officials concerning his own plant and his fears of an E. coli threat at a large meat processor. On February 7 and 8, Munsell contacted the offices of Senator Max Baucus and Congressman Denny Rehberg of Montana to express his concerns. Id. ¶ 31, JA 24. On February 8, Senator Baucus and Congressman Rehberg sent a letter to Nathaniel Clark, expressing Munsell's concerns and suggesting that Clark hold a meeting with Munsell in order to address them. Letter from Senator Max Baucus and Congressman Denny Rehberg to Dr. Nathaniel Clark, District Manager, FSIS (Feb. 8, 2002), JA 201–02. On February 25, Munsell informed congressional staff that he could verify that the E. coli contamination found at MQF was brought into his plant from a large supplier. He expressed concern that large amounts of unprocessed beef could be distributed across the country, potentially leading to consumer illness and death. Am. Compl. ¶ 32, JA 25.
Munsell alleges that FSIS inspectors then took retaliatory action against him. Clark contacted Munsell on February 26, 2002, to notify him that FSIS planned to suspend inspection of MQF's facilities. Id. ¶ 40, JA 27. The next day FSIS issued a formal Notice of Intended Enforcement to Munsell. Id. On March 5, 2002, an FSIS official notified Munsell that his proposed corrective action of insisting that large plant suppliers provide MQF with “certification for pathogen free beef” had been rejected, and that the FSIS had decided to move forward with the enforcement action. Id.
On March 8, 2002, facing the prospect of having FSIS inspection suspended, Munsell proposed a regime of sampling and laboratory analysis of incoming beef. On March 12, 2002, with this costly measure in place, Clark informed Munsell that FSIS would hold MQF's suspension in abeyance—meaning that inspections would continue to be carried out. Id. ¶ 41, JA 27–28. With the suspension in abeyance, however, the formal hearing appeals process described in 9 C.F.R. § 500.5(d) was foreclosed.
Between February 26 and July 1, 2002, FSIS required MQF to rewrite its HACCP plan on at least ten separate occasions. Am. Compl. ¶ 43, JA 28. Munsell alleges that these demands for revised plans sometimes came from the agency without explanations, that FSIS rejected revised plans that MQF had drawn verbatim from the guidance of USDA officials, and that FSIS rejected plan revisions that had previously been approved. Id.Eventually, MQF was forced to hire expert consultants to usher the HACCP process to conclusion and approval. Id. Munsell alleges that, from February 26 to July 3, 2002, due to FSIS's misconduct, MQF was unable to grind its own beef, i.e., beef not purchased as chubs from large plants.
While the HACCP rewrite process was underway, Munsell continued to complain about FSIS's actions towards him, as well as the general way in which E. coli contamination was being handled. On March 21, 2002, Montana congressional delegation staff and Munsell held a conference call with FSIS Associate Deputy Administrator for Field Operations William Smith to seek resolution of Munsell's concerns. Decl. of John W. Munsell ¶ 23, JA 192. At that meeting, Munsell complained to FSIS about its decisions to initiate enforcement actions against MQF, reject MQF's HACCP revisions, and require MQF to conduct testing and analysis of incoming beef in order to have the suspension of inspectors held in abeyance. Id. On May 3, 2002, Munsell met with FSIS management in Minneapolis to complain of the actions taken against MQF. Id. ¶ 24, JA 192–93.
*578 **51 Munsell's concerns about E. coli contamination at ConAgra were borne out. On June 30, 2002, ConAgra announced a recall of 350,000 pounds of contaminated beef. Am. Compl. ¶ 37, JA 26. Munsell's conflict with USDA was not over, however. The next day he again communicated to USDA staff his displeasure with “USDA's continuing rejection of my HACCP plan revisions.” Decl. of John W. Munsell ¶ 25, JA 193. Notwithstanding a letter dated July 22, 2002, in which Smith stated to members of Congress that “ the concerns raised by Mr. Munsell have been satisfactorily addressed,” id. ¶ 26, JA 193, Munsell continued to press his complaints, emailing FSIS officials in October 2002 and lobbying Senator Conrad Burns to hold congressional hearings on his concerns. Id. ¶ 27–28, JA 194.
On March 31, 2004, FSIS revised Directive 10,010.1, which governs how FSIS officials handle E. colisampling. FSIS Directive, 10,010.1 Revision 1 (Mar. 31, 2004), JA 156–83. On October 13, 2004, Munsell and MQF filed suit in the District Court. AAMP was later added as a plaintiff. All appellants sought injunctive and declaratory relief against USDA under the APA. In addition, Munsell and MQF sought damages against an individual FSIS officer, District Manager Clark, under a Bivens theory of liability.
After initiation of this suit, Munsell divested MQF of its meat processing facility, and Munsell/MQF were no longer subject to USDA regulation and oversight. Decl. of Cheryl A. Hicks, ¶ 12, JA 42; Application for Federal Meat, Poultry, or Import Inspection (Aug. 1, 2005) (change of ownership), JA 49–50; Email from John Munsell to Wendy Wirth (July 15, 2005) (authorizing reassignment of MQF's USDA establishment number to new owners), JA 52; Grant of Inspection (Aug. 1, 2005) (updating FSIS grant of inspection to reflect change of owner), JA 54.
[The court analyzed the question and determined there was no jurisdictional bar to hearing the case, but the forward looking claims brought by Munsell were moot because he no longer owned the company and the backward looking claims had not exhausted the agency appeals process and so could not yet yet be resolved in court.]
E. The Bivens Claim
In addition to their action seeking injunctive and declaratory relief under the APA, Munsell/MQF also seek damages from Nathaniel Clark, a USDA official who oversaw the disputed enforcement actions against MQF. Appellants invite this court to allow a Bivens cause of action in a case such as this, in which it has been alleged that USDA officials pursued retaliatory enforcement actions in order to chill constitutionally protected speech. Appellants' Br. at 26–30.
In 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 Supreme Court held that a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” Id. at 389., 91 S.Ct. 1999 In that case, agents of the Federal Bureau of Narcotics entered into the petitioner's home and arrested him without a warrant or probable cause. The Bivens Court rejected the view that state law causes of action—primarily based on privacy rights—provided a sufficient remedy to protect petitioner's Fourth Amendment interests. Reasoning that Fourth Amendment protections were not limited by state law, that interests protected by state trespass and invasion of privacy laws may be “inconsistent or even hostile” to those protected by the Fourth Amendment, and that “damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty,” the Court held that “petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.” Id. at 390–97, 91 S.Ct. 1999.
The Court subsequently applied Bivens in other contexts.  In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court found that the Due Process Clause of the Fifth Amendment created a right of action for damages where a woman had been dismissed from her employment in the offices of a Congressman on the basis of her sex. The Court reasoned that the Civil Rights Act, by excluding legislative employees, did not evidence a congressional intent to foreclose a constitutional damages remedy. 442 U.S. at 247, 99 S.Ct. 2264. And in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court found that the Eighth Amendment created a cause of action against federal prison officials, complementary to the remedy under the Federal Tort Claims Act against the federal government. 446 U.S. at 19–23, 100 S.Ct. 1468. And in Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), the Court found that federal prosecutors and postal inspectors who use their powers to retaliate against individuals for engaging in protected speech are “subject **61 *588 to an action for damages on the authority of Bivens.547 U.S. at 256, 126 S.Ct. 1695.
In Carlson, the Court established two exceptions to the Bivens doctrine, stating
Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate special factors counseling hesitation in the absence of affirmative action by Congress. The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.
446 U.S. at 18–19, 100 S.Ct. 1468 (internal quotation marks and citations omitted). Applying the criteria announced in Carlson, the Court has found that Bivens actions are barred against federal officers in several contexts. In each of these cases, the Court has found that constitutional damages actions were inappropriate where a sufficient alternative remedial structure already existed.
In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Court determined that there was no Bivens remedy for a federal employee seeking recovery for First Amendment violations alleged to have occurred in his workplace. The Court summed up the Bivens inquiry as follows:
The federal courts' statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts' power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.
462 U.S. at 378, 103 S.Ct. 2404. After reviewing the “elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations,” id. at 388, 103 S.Ct. 2404, designed to redress complaints from federal employees, and weighing “the respective costs and benefits that would result from the addition of another remedy for violations of employees' First Amendment rights,” id., the Court declined “to create a new substantive legal liability without legislative aid ... because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.” Id. at 390, 103 S.Ct. 2404 (internal quotation marks omitted).
Applying the standards announced in Passman and Bush v. Lucas, the Court has found other administrative schemes sufficient to obviate the need for a Bivens remedy. In Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the Supreme Court held that the Social Security Act's scheme of administrative and judicial remedies was sufficient to eliminate the need for a Bivens remedy. Considering Bivens claims on behalf of members of the armed services, the Court has also held that “the unique disciplinary structure of the Military Establishment” constituted a special factor making a Bivens action “inappropriate.” United **62 *589 States v. Stanley, 483 U.S. 669, 679, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).
Most recently, in Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), the Supreme Court affirmed the “familiar sequence” for determining whether to extend a Bivens remedy. 127 S.Ct. at 2598. First, the Court analyzed whether an “alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing” a Bivens remedy. Second, the Court made a “remedial determination that is appropriate for a common-law tribunal, paying particular heed ... to any special factors counseling hesitation.” Id. (internal quotation marks and citations omitted).
In Wilkie, petitioner claimed to have been the subject of a multiyear campaign of harassment by government officials—including trespass, unfavorable regulatory actions, and interference in his business operations—carried out to force him to grant an easement to his property. The Court found that petitioner had “an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints.” Id. at 2600. The Court found, however, that this “patchwork” of state and federal remedies—which included review under the APA—did not lead to an inference that “Congress expected the Judiciary to stay its Bivens hand,” and, therefore, the Court engaged in the common-law balancing inquiry. Id.
In conducting this inquiry, the Court in Wilkie distinguished the case in which a petitioner “describes the wrong ... as retaliation for standing on his right as a property owner to keep the Government out,” from a case in which a petitioner claims that “the Government may not retaliate [against him] for exercising First Amendment speech rights.” Id. at 2601. The decision notes that in a typical First Amendment retaliation case, the “purpose and motivation” behind the Government's conduct is to chill speech—which is always impermissible. Id. On the other hand, in a property rights case of the sort under review in Wilkie, the Government was merely “trying to induce someone to grant an easement for public use” which was “a perfectly legitimate purpose.” Id. The petitioner did not challenge “the object the Government [sought] to achieve.” Id. And, “for the most part,” the petitioner did not claim that the “means the Government used were necessarily illegitimate.” Id. Rather, the Wilkie petitioner simply claimed that Government officials “demanded too much and went too far.” Id. The Court concluded that “the line-drawing difficulties [created by the petitioner's claims] are immediately apparent,” id., and ultimately declined to allow an action under Bivens.
It is not entirely clear what the result should be in a case of this sort, involving a claim that FSIS officials used USDA enforcement powers to retaliate against Munsell for statements he made concerning USDA's handling of an E. coli outbreak in 2002. The Government argues that the APA provides a sufficient remedy for Munsell, and therefore no Bivens action is needed. Br. for Appellees at 25–29. The APA does indeed create a mechanism for persons subject to USDA enforcement actions to pursue challenges based on alleged constitutional violations. See 5 U.S.C. § 706(2)(B). In Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir.2005), the court held that APA review is thus a viable alternative sufficient to bar a Bivens remedy against USDA enforcement officials. Observing that “[t]he Supreme Court has been wary of extending Bivensremedies into new contexts,” 398 F.3d at 1084, the Nebraska Beef court held that, “[w]hen Congress has created a comprehensive **63 *590 regulatory regime, the existence of a right to judicial review under the APA is sufficient to preclude a Bivens action.” Id.
The Eighth Circuit decision in Nebraska Beef leaves some weighty issues unanswered. The decision was rendered before the Supreme Court issued Wilkie. This is noteworthy, because, rather than apply the traditional common-law balancing inquiry endorsed by Wilkie, Nebraska Beef applies the Eighth Circuit's “presumption against judicial recognition of direct actions for violations of the Constitution by federal officials or employees.” Id. (quoting McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir.1988)). In addition, the constitutional wrong that the plaintiff sought to remedy in Nebraska Beef is unclear. We do not know whether the alleged misconduct in Nebraska Beef was motivated by a “legitimate purpose” as in Wilkie or involved a First Amendment retaliation claim of the sort at issue in this case. Cf. Hartman, 547 U.S. at 256, 126 S.Ct. 1695. Finally, we are unaware of any Supreme Court decision holding that APA review alone is sufficient to eliminate the need for a Bivens remedy.
The Government argues that, “[e]ven apart from the mechanism that Congress has provided for reviewing constitutional challenges to FSIS action, special factors would preclude the creation of a damages remedy against the officials charged with protecting the nation's meat supply.” Br. for Appellees at 29. The Government's “special factors” argument is not without force:
[T]he Federal Meat Inspection Act was passed after Upton Sinclair's book, THE JUNGLE, exposed the unsanitary conditions in the meat packing industry. A system of federal inspection was created and the inspectors subjected to strict regulation lest their corruption—or the appearance of it—undermine the quality of meat or the public's trust in their supervision of meat quality. The Federal Meat Inspection Act [“FMIA”] provided that the federal inspectors shall have access to all parts of a plant at all times, and included a broad anti-gratuity provision forbidding officers or employees authorized to perform duties under the FMIA from accepting gratuities.
Congress was thus at pains to shield the decisions of federal food safety officials from improper influence by the meat processing plants they regulate. The threat of a damages action can influence an official's conduct as much, if not more, than the temptation of a gratuity, since such a threat can be used by an unscrupulous plant to inhibit aggressive regulation.
Where, as here, federal officials administer a comprehensive federal regulatory regime in which relationships between the regulator and the regulated are frequently hostile and adversarial, it is for Congress to decide whether the public interest would be furthered by a cause of action requiring regulators to pay damages personally unless they can convince a jury that their conduct in aggressively regulating was not the product of an unconstitutional motive. Congress's failure to expose federal food safety officials to personal liability cannot be deemed inadvertent. Accordingly, a court may not imply such a remedy....
Br. for Appellees at 29–31 (internal citations and quotation marks omitted).
Even assuming, arguendo, that the existence of APA review might factor into a determination as to whether a Bivens remedy is available, its relevance would be minimal in a case involving claimants who are ineligible for relief under the APA. Because appellants such as Munsell/MQF **64 *591 are no longer subject to USDA oversight, their claims under the APA are moot. The only viable relief for appellants like Munsell/MQF, who allegedly have been driven from business by the retaliatory actions of agency officials, would be backward-looking damages claims. Munsell/MQF allege that USDA officials engaged in a series of enforcement actions with the purpose of harassing Munsell for his constitutionally protected speech. Appellants argue that these officials, animated by retributive animus, ultimately succeeded in driving Munsell/MQF out of the meat processing business. Thus, in a case of this sort, were the possibility of APA review deemed sufficient to foreclose a Bivens remedy, the very success of the unconstitutional conduct in removing Munsell/MQF from the regulated arena would make APA review unavailable and insulate the conduct entirely from judicial review. That would make little sense.
* * * 
We need not now decide whether to extend the Bivens remedy to the current case. Even assuming, arguendo, that appellants might have a Bivens action, they have failed to exhaust their administrative remedies on their constitutional claims. Just as the PLRA exhaustion requirement applies to Bivens actions against prison officials, see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(under PLRA, “federal prisoners suing under [Bivens] must first exhaust inmate grievance procedures”), 7 U.S.C. § 6912(e)'s express language makes it clear that judicial review is only available to appellants like Munsell/MQF after all administrative remedies have been exhausted.
There is a strong rationale for requiring constitutional claims against USDA to be raised first in the administrative process, as mandated by § 6912(e). In Bivens actions, plaintiffs typically claim that government officials have exceeded the scope of their authority and, in doing so, violated rights protected by the Constitution. Bringing such claims to the agency in the first instance allows the agency to clarify its position about the conduct of the accused official. Cf. Wilkie, 127 S.Ct. at 2601. In these fact intensive cases, an administrative process will also create a record on which a Bivens claim can be evaluated. Bringing the complaint directly to the agency also may allow the agency to remedy the alleged offending conduct and, at the least, avoid continuing constitutional harm.
The administrative process in this case is not burdensome. 9 C.F.R. § 306.5 establishes an extremely straightforward process for appealing the decisions of FSIS officials: “Any appeal from a decision of any Program employee shall be made to his/her immediate supervisor having jurisdiction over the subject matter of **65 *592 the appeal....” Munsell took advantage of that process for his claims that the agency was acting unreasonably by failing to require the traceback of contaminated meat and placing an unjustified burden on small meat processors. He did not, however, raise his constitutional claims while pursuing challenges to the enforcement action. It would have been a simple matter for Munsell to do this, and it would have given the agency an opportunity to “nip in the bud” any unconstitutional conduct on the part of one of its officers.
The fact that USDA's administrative appeals process does not allow for money damages does not create an exception to the exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The rationale for requiring exhaustion does not depend on the existence of money damages as a remedy. So long as the administrative process offers the possibility of some redress for the alleged unconstitutional conduct—including reprimanding the responsible official and barring similar future conduct—the administrative process can serve its proper function.
* * *
For the foregoing reasons, appellants' actions are hereby dismissed.
So ordered.

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August 20, 2017

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