                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 11-2146
                                      ____________

                 THE CONSTITUTIONAL GUIDED WALKING TOURS;
                       JONATHAN H. BARI; LESLIE S. BARI,

                                                                  Appellants

                                             v.

      INDEPENDENCE VISITOR CENTER CORPORATION; WILLIAM W. MOORE;
  NATIONAL PARK SERVICE, An Agency of the United States; DENNIS REIDENBACH,
Individually and in his Official Capacity as Northeast Regional Director of the NPS; CYNTHIA
 MACLEOD, Individually and in her Official Capacity as Superintendent of the INHP; DARLA
   SIDLES, Individually and in her Official Capacity as Deputy Superintendent of the INHP
                                      ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 09-cv-03083)
                     District Judge: Honorable C. Darnell Jones, II
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 6, 2011

       Before: HARDIMAN, BARRY and VAN ANTWERPEN, Circuit Judges.

                                (Filed: December 6, 2011)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

      Constitutional Guided Walking Tours (Constitutional Tours) and its owners,
Jonathan and Leslie Bari (the Baris), appeal the District Court‟s judgment dismissing

their first amended complaint. We will affirm.

                                             I

       Because we write for the parties, who are well acquainted with the case, we

recount only the essential facts and procedural history.

       The Baris own and operate Constitutional Tours, a business offering walking tours

of Philadelphia‟s Independence National Historic Park (Independence Park). Established

as a unit of the national park system pursuant to 16 U.S.C. § 407m, Independence Park is

administered by the National Park Service (the Park Service). Since 1999, Independence

Park has been managed by the Independence Visitor Center Corporation (the Visitor

Center Corporation) pursuant to the Gateway Visitor Center Authorization Act (the

Authorization Act),1 Pub. L. No. 106-131, 113 Stat. 1678 (1999). The Authorization Act

provides that the Secretary of the Interior, “in administering [Independence Park], may

enter into an agreement under appropriate terms and conditions with the Gateway Visitor

Center Corporation . . . to facilitate the construction and operation of a regional Gateway

Visitor Center on Independence Mall.” Authorization Act § 3(a). During the period

relevant to this appeal, the Visitor Center Corporation operated Independence Park‟s

Visitor Center under successive “special use permits” (SUPs).


       1
        The Visitor Center Corporation was formerly known as the Gateway Visitor
Center Corporation.

                                             2
       Businesses like Constitutional Tours contract with the Visitor Center Corporation

to sell tickets, display brochures, gather customers, and store materials in the Visitor

Center. The Visitor Center Corporation and Constitutional Tours entered into a year-long

“admission sales agreement” in 2005. After that contract expired, Constitutional Tours

was unable to negotiate new agreements with the Visitor Center Corporation.

Consequently, Constitutional Tours‟s access to the Visitor Center was limited to meeting

customers and commencing tours in the facility under restrictions not imposed on

businesses that had secured contracts with the Visitor Center Corporation.

       In 2009, Constitutional Tours and the Baris filed an eight-count complaint in the

District Court against the Park Service; Park Service employees Dennis Reidenbach,

Cynthia MacLeod, and Darla Sidles; and the Visitor Center Corporation and its former

president, William Moore. We need only address Counts One and Two of the complaint

because Appellants voluntarily withdrew Count Eight, and the District Court did not

exercise supplemental jurisdiction over their state law claims (Counts Three through

Seven).

       In Count One, Appellants sued the Park Service under the Administrative

Procedure Act (APA), 5 U.S.C. § 701 et seq., arguing that because the Visitor Center

Corporation‟s SUPs were not the type of agreement contemplated in the Authorization

Act, the delegation of management duties to the Visitor Center Corporation violated the

Authorization Act, the National Park Service Organic Act (the Organic Act), 16 U.S.C.

                                              3
§ l et seq., and the National Park Service Concessions Management and Improvement Act

(the Management Act), 16 U.S.C. § 5951 et seq. In Count Two, Appellants brought

claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), against Reidenbach, MacLeod, and Sidles, arguing that they

violated Appellants‟ substantive and procedural due process rights by enabling the Visitor

Center Corporation to treat Constitutional Tours less favorably than its competitors. To

remedy what Appellants characterized as unfair treatment resulting from the Park

Service‟s delegation of Independence Park management to the Visitor Center

Corporation, they asked the District Court to “compel the [Park Service] to enter into a

License Agreement for a prominent and dedicated ticket sales booth inside of the

Independence Visitor Center” and to grant Constitutional Tours “a Commercial Use

Authorization permitting [it] to stage its tours . . . and to conduct solicitation . . . in a

manner comparable to other private parties.”

       The District Court dismissed Count One, finding that it lacked subject matter

jurisdiction over the Park Service because Appellants failed to identify a nondiscretionary

action that the Agency was required to take. The Court also dismissed Count Two,

holding that Reidenbach, MacLeod, and Sidles enjoyed qualified immunity for actions

performed in their official capacities.

                                                II

       We have jurisdiction over the District Court‟s final order pursuant to 28 U.S.C.

                                                 4
§ 1291. We exercise plenary review over the District Court‟s dismissal pursuant to

Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). McTernan v. City of York, Pa., 577

F.3d 521, 526 (3d Cir. 2009); Growth Horizons, Inc. v. Del. Cnty., Pa., 983 F.2d 1277,

1280 (3d Cir. 1993).

                                             III

       Upon review of the record and the briefs, we will affirm the judgment of the

District Court essentially for the reasons stated in its opinion. See Constitutional Guided

Walking Tours, LLC v. Independence Visitor Ctr. Corp., No. 09-3083, 2011 WL 1234744

(E.D. Pa. Mar. 31, 2011).

       The Court dismissed Appellants‟ APA claim (Count One) for lack of subject

matter jurisdiction because they “failed to plead a discrete act that the [Park Service] is

required to perform, and [were] unable to do so because the management of the

Independence Visitor[] Center is committed to the agency‟s discretion by applicable

statute and Public Law 106-131.” Id. at *3 (emphasis omitted).

       When evaluating a claim made pursuant to the APA, we must ask “whether the

action at issue . . . was discretionary” and “distinguish[] between actions which an agency

official may freely decide to take or not to take, and those which he is obligated by law to

take or not to take.” Pinho v. Gonzales, 432 F.3d 193, 203 (3d Cir. 2005). Judicial

review of an agency action is permitted where the action was final, non-discretionary, and

“adversely affect[ed] the party seeking review.” Id. at 200.

                                              5
       Appellants failed to meet the second requirement to establish the reviewability of

their APA claim. They argue that because the Park Service and the Visitor Center

Corporation had not reached the kind of agreement contemplated by the Authorization

Act, the Park Service lacked authority to engage in cooperative management and

therefore delegated its duties in violation of the Authorization Act, the Organic Act and

the Management Act. The Authorization Act states that “[t]he Secretary of the

Interior . . . may enter into an agreement” with the Visitor Center Corporation,

Authorization Act § 3(a) (emphasis added), not that it must do so. As the District Court

aptly noted, the language of the Authorization Act “clearly leaves the [Park Service] with

the absolute discretion to enter into agreements with the [Visitor Center Corporation].”

Constitutional Guided Walking Tours, 2011 WL 1234744, at *5. The Organic Act and

the Management Act, which define the authority of the Park Service with respect to

various entities, also reserve ultimate discretion to the Secretary of the Interior.2 Thus,



       2
           As the District Court correctly pointed out, the Park Service is granted broad
discretion to determine “whether to issue a concessions contract,” 16 U.S.C. § 5952(10),
whether to contract with private entities “to conduct or assist in . . . the management of
the . . . concessions program,” id. § 5959(a)(1), and whether it is appropriate to issue a
Commercial Use Authorization, id. § 5966(c)(3). Because this broad discretion involves
“managerial choices that are not readily subject to judicial review,” and because the Park
Service‟s alleged actions do not “violate[] a constitutional, statutory, or regulatory
command,” the actions are unreviewable under § 701(a)(1). See Raymond Proffitt Found.
v. United States Army Corps of Eng’rs, 343 F.3d 199, 203, 205 (3d Cir. 2003) (stating
that agency action is unreviewable where it (1) “involves broad discretion;” (2) “is the
product of political . . . or managerial choices that are not readily subject to judicial

                                              6
the District Court committed no error when it dismissed Count One for lack of subject

matter jurisdiction.

       Nor did the District Court err when it dismissed Count Two based on qualified

immunity. “The doctrine of qualified immunity protects government officials „from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.‟”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The Supreme Court established a two-prong test for claims of qualified

immunity in Saucier v. Katz, explaining that “the first inquiry must be whether a

constitutional right would have been violated on the facts alleged; second, assuming the

violation is established, the question whether the right was clearly established must be

considered.” 533 U.S. 194, 200 (2001). In Pearson, the Court held that the two prongs

need not be evaluated in any particular sequence. 555 U.S. at 232, 236.

       Appellants failed to meet the first prong of the Saucier test. “Because vicarious

liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each

Government-official defendant, through [his] own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Appellants‟ claim that

Reidenbach, MacLeod, and Sidles, “under color of federal law, directed, supervised,



review;” and (3) does not “violate[] a constitutional, statutory, or regulatory command”
(quoting Davis Enters. v. EPA, 877 F.2d 1181, 1185 (3d Cir. 1989))).

                                              7
condoned and endorsed arbitrary and capricious conduct toward [Appellants],” does not

demonstrate any violation of a constitutional right. Though they claim that Reidenbach,

MacLeod, and Sidles limited Constitutional Tours‟s access to the Visitor Center while

treating Constitutional Tours‟s competitors more favorably, Appellants fail to allege that

these competitors operated under preferential lease terms that had not been offered to

Constitutional Tours during its failed contract negotiations with the Visitor Center

Corporation. Furthermore, as the District Court correctly noted, Appellants “fail to

acknowledge the significant discretionary authority vested in [the individual d]efendants”

with respect to the conduct they characterize as discriminatory. Constitutional Guided

Walking Tours, 2011 WL 1234744, at *10.

       Appellants‟ failure to satisfy the first prong of the qualified immunity analysis

obviates the need to evaluate the second prong. The District Court did not err when it

dismissed Appellants‟ Bivens claims against Reidenbach, MacLeod, and Sidles.

                                             IV

       For the foregoing reasons, we will affirm the District Court‟s judgment.




                                              8
