Left Fork Mining Company, Inc. v. Irving Hooker, et al.

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 (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 AFFIRM.

I.

Plaintiffs-Appellants are the owners, operators, and other parties1 with a financial interest

in the Straight Creek underground coal mine in Bell County, Kentucky, and include the Left

Fork Mining Company ("Left Fork”), which leases and operates the mine.2 Straight Creek is an

underground slope mine containing two separate seams of coal: the upper seam is the Rim Seam

and the lower seam is the Straight Creek Seam. Until its flooding, Left Creek mined in three

sections of the Rim Seam, while working to rehabilitate the Straight Creek Seam. Mines like

Straight Creek are subject to regular safety inspections pursuant to the Federal Mine Health and

Safety Act of 1977 ("Mine Act”) (30 U.S.C. § 801 et. seq.). The Mine Act authorizes the

Secretary of Labor to promulgate mandatory health and safety regulations for all mines

(30 C.F.R. § 75.370 et seq.). The Federal Mine Safety and Health Administration ("MSHA”), a

division of the Department of Labor ("DOL”), acts on behalf of the Secretary of Labor and

enforces the Mine Act. The Mine Act generally requires at least four annual inspections and, in

some instances, more frequent, "spot,” inspections, such as in the event of excessive methane

1Left Fork operates Straight Creek under a lease agreement with Manalapan Land Company, Ltd. and

Black Star Mining Company, Ltd. Under the agreement, Left Fork pays Manalapan and Black Star royalties for the

coal mined on their property. Left Fork then supplies the coal to Cumberland River Energies, LLC, which sells the

coal to various third-party purchasers. Bennett Resources LLC leases mining equipment to Left Fork. Collectively,

these companies make up the appellants in this case.

2On November 11, 2013, Left Fork, Bennett Resources, LLC, and Cumberland River Energies, LLC filed

for bankruptcy under Chapter 7. Although the pending lawsuit was listed in the respective bankruptcy schedules,

none of the parties attempted to substitute the appointed bankruptcy trustees in the pending district court action. On

March 17, 2014 the district court dismissed the complaint and the Plaintiffs-Appellants filed a notice of appeal on

April 14, 2014. The appointed trustees hold the exclusive right to assert the instant appeal on behalf of Left Fork,

Bennett Resources, LLC, and Cumberland River Energies, LLC. Therefore, those parties must file a motion for

substitution in accordance with Fed. R. App. P. 43(a) and (b).

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 3

liberation. 30 U.S.C. § 813(i). Defendants-Appellees Irvin Hooker,3 Clayton "Eddie” Sparks,

Dannie Lewis, Dennis Cotton, Charles Maggard, and Sam Creasy are mine inspectors or

supervisors employed by the MSHA (collectively, "MSHA employees”). The Mine Act

mandates that an inspector must issue a citation to a mine operator for any conditions the

inspector observes that are in violation of the Mine Act or its attendant regulations. 30 U.S.C.

§ 814(a).

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.4

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

3The death of Irving Hooker, a public officer sued in his official capacity, during the pendency of this

appeal does not necessitate substitution. See Fed. R. App. P. 43(c)(2) ("When a public officer who is a party to an

appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not

abate. The public officer's successor is automatically substituted as a party. Proceedings following the substitution

are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the

parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does

not affect the substitution.”)

4Mine operators may contest orders issued under section 103, 107 (and any modification therein) within

30 days of issuance. 29 C.F.R. § 2700.22. The Administrative Law Judge's decision in this case suggests that Left

Fork contested the No Access Order, Imminent Danger Order, and accompanying citations. Those cases were

assigned to a different Administrative Law Judge, however, and the record does not indicate the outcomes.

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 4

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 citation issued on March 22, 2011.5 Left Fork counters that it could not abate

the condition because the MSHA would not allow Left Fork access to the mine. On April 8,

2011, Left Fork submitted a second plan for abatement which was denied in writing on April 11,

2011.

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.6

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.7 The Commission, which bears

singular responsibility for adjudicating disputes under the Mine Act (such as challenges to orders

5It is unclear from the record whether Left Fork contested the Abatement Order when it was first issued.

6Left Fork states that the MSHA approved Left Fork's plans for abatement on January 13, 2012, but only

on the condition that Left Fork would begin construction within three days. Despite approving Left Fork's plan,

MSHA employees refused to allow Left Fork to stop the flooding or retrieve any equipment that could be salvaged.

7The Mine Act's Procedural Rules provide that an operator may contest a citation or an order issued under

section 104 of the Act, 30 U.S.C. 814, or a modification of a citation or an order issued under section 104 of the Act.

See 29 C.F.R. § 2700.20.

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 5

issued by the MSHA), is an independent adjudicative agency created by Congress to provide

impartial review of legal disputes arising under the Mine Act. See 30 U.S.C. §§ 823(a) and (d).

The Commission's Administrative Law Judges ("ALJs”) decide cases at the trial level and the

five-member Commission provides appellate review. Id. Further appeals of the Commission's

decisions are to the appropriate United States court of appeals. 30 U.S.C.A. § 816 (a)(1). The

Commission is authorized to grant hearings, including on an expedited basis, and to grant

temporary relief as requested by mine operators. Id.

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.

Despite the ALJ's favorable ruling, Left Fork experienced significant flood damage in the

interim.8 Left Fork filed the instant action against the MSHA employees, seeking "[r]easonable

compensation for the denial of [Left Fork's] rights and the unlawful destruction of [Left Fork's]

Property and Equipment in an amount to be determined at trial.” PageID 18.

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.

8Recognizing that a favorable decision may come too late to prevent flood damage to Left Fork's property,

at the conclusion of the hearing, the ALJ urged the parties to "meet and work out a plan to prevent destruction of a

mine,” and then contact his office. PageID 34. However, no such contact occurred.

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 6

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.

II.

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

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) ("[O]nly a complaint that

states a plausible claim for relief survives a motion to dismiss.”). In other words, even if Left

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 7

Fork has a "cause of action, [the] complaint might nevertheless be dismissed under Rule 12

(b)(6) unless it can be determined that judicial relief is available.” Davis v. Passman, 442 U.S.

228, 244 (1979) (considering whether a judicially-created damages-remedy is an appropriate

form of relief).

III.

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 (1963) (citing Bivens, 403 U.S. at 390). 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 (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 (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 (2007) (citing

Bush v. Lucas, 462 U.S. 367, 378 (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,

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 8

Left Fork has met the two threshold considerations for a Bivens claim. We therefore proceed to

the two-step inquiry outlined in Wilkie.

A.

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.

The Mine Act's extensive and comprehensive review process is precisely the kind of

remedial structure that precludes a judicially-created remedy. Although the Supreme Court has

not ruled on the applicability of a Bivens remedy in Mine Act cases, the Court has held that the

Act "establishes a detailed structure for reviewing violations of 'any mandatory health or safety

standard, rule, order, or regulation promulgated' under the Act.” Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 207 (1994) (quoting § 30 U.S.C. 814(a)). Under the Mine Act, mine

operators may contest citations or orders issued under sections 104 and 107 within thirty days.

See 30 U.S.C. §§ 815(a), (d). Such challenges are first heard by an ALJ, and may also be heard

by the Commission at its discretion. 30 U.S.C. § 823(d)(2). In addition to the procedure for

contesting an order, the Mine Act authorizes the Commission to grant temporary relief from any

order (including those issued under sections 103(k) and 104) or modification thereof. 30 U.S.C.

§ 815(b)(2);9 see also Performance Coal Co. v. Fed. Mine Safety & Health Review Comm'n,

642 F.3d 234, 239 (D.C. Cir. 2011). The Mine Act also prescribes specific circumstances under

which judicial review of the administrative proceedings is permitted. Under section 106(a)(1),

9"An applicant may file with the Commission a written request that the Commission grant temporary relief

from any modification or termination of any order or from any order issued under section 814 of this title together

with a detailed statement giving the reasons for granting such relief. The Commission may grant such relief under

such conditions as it may prescribe, if— (A) a hearing has been held in which all parties were given an opportunity

to be heard; (B) the applicant shows that there is substantial likelihood that the findings of the Commission will be

favorable to the applicant; and(C) such relief will not adversely affect the health and safety of miners. No temporary

relief shall be granted in the case of a citation issued under subsection (a) or (f) of section 814 of this title. The

Commission shall provide a procedure for expedited consideration of applications for temporary relief under this

paragraph.” 30 U.S.C. § 815(b)(2).

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 9

"[a]ny person adversely affected or aggrieved by an order of the Commission issued under this

chapter may obtain review of such order in any United States court of appeals for the circuit in

which the violation is alleged to have occurred or in the United States Court of Appeals for the

District of Columbia Circuit.” 30 U.S.C. § 816(a)(1).

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 does not necessitate financial compensation

either.

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, see also Bush, 462 U.S. at 378. Therefore, the

lack of money damages under the Mine Act does not automatically entitle Left Fork to a

judicially created remedy under Bivens.

B.

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

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 10

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. 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.

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 11

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.

Schweiker suggests that "meaningful” should be understood based on Congressional intent and

not a plaintiff's perspective alone. In Schweiker, employees of the Social Security

Administration allegedly violated the plaintiff's due process rights in denying disability claims.

However, because the Social Security Act provided a mechanism for redress, including the

reinstatement of benefits when denial was erroneous, the Supreme Court found special factors

counseling hesitation. Id. The Supreme Court was not persuaded by the fact that the Social

Security Act did not provide any monetary remedy for a constitutional violation claimed, or for

the emotional distress and delay that a denial of benefits might occasion. Id. This is because

Congress is presumed to have balanced governmental efficacy with individual rights in designing

the statute. Id. Left Fork argues that the alternate existing remedies in Schweiker and Bush were

more effective in making the plaintiffs whole than Left Fork's remedies under the Mine Act. We

cannot consider the efficacy of the remedy without also asking whether Congress intended the

existing remedies to be supplemented by judicial action. In this case we think that it did not.

Supreme Court jurisprudence holding that "effective” relief is not always "complete” relief, and

the Mine Act's clear limitations on judicial remedies, counsel us against recognizing Bivens

relief in this case.

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 (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

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 12

a substitute for recovery directly under the Constitution and viewed as equally effective.”

Carlson, 446 U.S. at 18-19. 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 (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. 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. 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 236. ("[J]udicial review of congressional

employment decisions is constitutionally limited only by the reach of the Speech or Debate

Clause of the Constitution,” therefore, judicial review was warranted in the case to the extent that

the Congressman was not shielded by the Clause.) Unlike in Davis, the Mine Act explicitly

circumscribes judicial review in this case.

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 (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

No. 14-5450 Left Fork Mining Co., et al. v. Hooker, et al. Page 13

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 (citing Twombly, 550 U.S. at 555;

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 AFFIRM the district court’s decision.