                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 16a0041p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 ROGER HAINES,                                         ┐
                                Plaintiff-Appellant,   │
                                                       │
                                                       │
        v.                                             │
                                                        >      No. 15-1624
                                                       │
 FEDERAL      MOTOR      CARRIER      SAFETY           │
 ADMINISTRATION; DARIN JONES; ANNE S. FERRO;           │
 T.F. SCOTT DARLING III,                               │
                         Defendants-Appellees.         │
                                                       ┘
                         Appeal from the United States District Court
                       for the Eastern District of Michigan at Bay City.
                  No. 1:14-cv-14438—Thomas L. Ludington, District Judge.

                            Decided and Filed: February 18, 2016

                 Before: SILER, CLAY, and KETHLEDGE, Circuit Judges.

                                     _________________

                                         COUNSEL

ON BRIEF: Joni M. Fixel, FIXEL & NYEHOLT, PLLC, Okemos, Michigan, for Appellant.
Derri T. Thomas, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellees.

                                     _________________

                                          OPINION

                                     _________________

       CLAY, Circuit Judge. Plaintiff Roger Haines filed suit against Defendants Federal Motor
Carrier Safety Administration (the “FMCSA”)—an agency within the United States Department
of Transportation (“DOT”)—and FMCSA agents T.F. Scott Darling III, Darin Jones, and Anne
S. Ferro (collectively, “Defendants”).   According to Haines, Defendants’ handling of the




                                               1
No. 15-1624                  Haines v. Fed. Motor Carrier Safety Admin., et al.                     Page 2


temporary suspension of his motor carrier operations violated his rights to due process and equal
protection under the Fourteenth Amendment of the United States Constitution and gave rise to a
claim under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701, et seq. The district
court disagreed, granted Defendants’ motion to dismiss, and denied Haines’ motion for leave to
amend his complaint. For the following reasons, we AFFIRM.

                                               BACKGROUND

                                            Factual Background

        The complaint alleges the following. Haines owns and operates a tour bus company
known as “Haines Tours.” In 2000, he modified the luggage compartment in one of his busses to
become a new sleeper area. In designing the sleeper area, Haines took various precautions to
insure compliance with FMCSA regulations.1

        After an FMCSA compliance review in August 2010, Haines hired an attorney to obtain
FMCSA approval for the sleeper area. In a letter dated May 16, 2011, the FMCSA informed
Haines that he could use the bus’s luggage compartment as a sleeper area without additional
approval if he complied with the applicable regulation. See 49 C.F.R. § 393.76.

        On May 29, 2011, Haines permitted some of his family members to ride in the sleeper
area while the bus was in motion. An unidentified individual saw Haines’ family members
riding in the converted luggage compartment and notified the authorities.

        As a result of this incident, on June 10, 2011, the FMCSA issued an order placing all of
Haines’ busses, including three busses without sleeper areas, out of service. The out-of-service
order also identified Haines Tours as an “imminent hazard” to public safety based on the
FMCSA’s finding that the “unauthorized transportation of passengers in the cargo area of
[Haines Tours’] motorcoaches . . . substantially increase[d] the likelihood of serious injury or
death if not discontinued immediately.” (R. 1-4, Ex. C 1). Haines alleges that as a result of this
order, two of his busses without sleeper areas were forced off the road during a trip to Chicago,

        1
          Among other things, the FMCSA is charged with establishing procedures and conducting compliance
reviews in order to evaluate the “safety fitness” of commercial motor carriers. A.D. Transp. Express, Inc. v. United
States, 290 F.3d 761, 763–64 (6th Cir. 2002).
No. 15-1624               Haines v. Fed. Motor Carrier Safety Admin., et al.         Page 3


Illinois, and Haines Tours was required to make alternative arrangements to insure that its
customers reached their respective destinations. Haines also alleges that the out-of-service order
exceeded the scope of the FMCSA’s authority under 49 C.F.R. § 386.72(b)(2) because such
orders cannot impose restrictions “beyond that required to abate the hazard.”

          On June 14, 2011, Haines contacted Defendant Darin Jones, a field administrator for the
FMCSA Midwestern Service Center, and informed Jones that he had implemented the corrective
measures outlined in the out-of-service order. In an order dated June 15, 2011, Jones rescinded
the out-of-service order based on a finding that the “corrective measures implemented by
[Haines Tours] ha[d] abated the condition of imminent hazard.” (R. 5, Am. Compl. ¶ 27; R. 1-6,
Ex. E).     The following day, however, Defendant Anne S. Ferro, the Administrator of the
Midwestern Service Center, vacated Jones’ rescission order because she, unlike Jones, was not
persuaded that Haines’ corrective measures had abated the imminent hazard. After receiving
Ferro’s order, Haines contacted his congressional representatives “to see if anything could be
done,” retained counsel “to assist in communications with the FMCSA,” and hired outside tour
bus companies to fulfill his existing contracts. (See id. at ¶¶ 30–31, 33).

          In February 2012, the FMCSA rescinded its out-of-service order. Although Haines Tours
failed a March 2012 inspection for reasons Haines alleges were “pretext[ual],” following an audit
in October 2012, DOT reinstated Haines’ certificate of authority in January 2013.

                                     Procedural Background

          Haines filed the instant lawsuit on November 19, 2014, and filed the Amended
Complaint, which is the operative complaint, on January 20, 2015. Haines alleges that the
FMCSA’s “unjust actions” caused him to suffer injuries in the form of (1) lost revenues,
(2) personal humiliation and embarrassment, (3) loss of standing in the business community,
(4) anger, outrage, and indignation, and (5) attorney’s fees. In an apparent effort to recoup these
losses, he brought three causes of action for (1) violation of the APA, (2) a claim under
42 U.S.C. § 1983 for violation of his right to procedural due process under the Fourteenth
Amendment, and (3) a § 1983 claim for violation of his right to equal protection under the
Fourteenth Amendment.
No. 15-1624             Haines v. Fed. Motor Carrier Safety Admin., et al.           Page 4


       Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and (b)(6) for lack of subject matter jurisdiction and failure to state a claim. Haines
filed a brief opposing Defendants’ motion to dismiss as well as a separate motion for leave to
amend the complaint. As part of his motion for leave to amend, Haines sought permission to
bring his constitutional claims against Defendants (a federal agency and its agents who were
ostensibly acting under color of federal law) under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than § 1983. In opposing Haines’
motion for leave to amend, Defendants argued that permitting Haines to file an amended
complaint would be futile because (1) Haines’ constitutional claims were time-barred by
Michigan’s three-year statute of limitations, (2) the FMCSA, as a federal agency, could not be
sued under a Bivens theory, and (3) there was no basis for recognizing a new Bivens remedy
against the FMCSA’s agents because Haines had an adequate, alternative remedy available to
him through the administrative review process.

       The district court granted Defendants’ motion to dismiss and denied Haines’ motion for
leave to amend. The district court dismissed Haines’ APA claim for lack of subject matter
jurisdiction based on its findings that (1) Haines failed to exhaust his administrative remedies
before challenging the FMCSA’s actions in federal court; and (2) the out-of-service order was
not a “final agency action” within the meaning of the APA. Haines v. Fed. Motor Carrier Safety
Ass’n, No. 14-cv-14438, 2015 WL 1912338, at *2–4, *6 (E.D. Mich. Apr. 27, 2015). The
district court also dismissed Haines’ constitutional claims with prejudice on the grounds that
Haines could not state a viable § 1983 claim against Defendants because § 1983 applies to
persons acting under color of state law, not persons acting under color of federal law. Id. at *4,
*6. Lastly, the district court denied Haines’ motion for leave to amend his complaint, concluding
that amendment would be futile because Haines’ constitutional claims were barred by
Michigan’s three-year statute of limitations and an amended complaint could not survive a
12(b)(6) motion. Id. at *4–6. The district court reached the latter conclusion based on its finding
that “a Bivens remedy [wa]s not available because the APA provide[d] an adequate alternative
remedy for unfavorable agency actions.” Id. at *5. Haines timely appealed the district court’s
order and judgment.
No. 15-1624             Haines v. Fed. Motor Carrier Safety Admin., et al.           Page 5


                                         DISCUSSION

                                       I. The APA Claim

       We review de novo a district court’s decision to dismiss a claim for lack of subject matter
jurisdiction or failure to state a claim. Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 494 (6th
Cir. 2014). Even where the district court relies on erroneous grounds in reaching its decision, we
may affirm that decision “on any ground supported by the record.” Bangura v. Hansen, 434 F.3d
487, 498 n.3 (6th Cir. 2006) (citing City Mgmt. Corp. v. U.S. Chem. Corp., 43 F.3d 244, 251 (6th
Cir. 1994)); see also Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).

       As indicated, the district court dismissed Haines’ APA claim for lack of subject matter
jurisdiction based, in part, on Haines’ failure to exhaust his administrative remedies. Although
we find that the district court erred in making this determination, we affirm the dismissal of
Haines’ APA claim on alternative grounds.

                            A. Lack of Subject Matter Jurisdiction

       “The APA ‘sets forth the procedures by which federal agencies are accountable to the
public and their actions subject to review by the courts.’” Muniz-Muniz v. U.S. Border Control,
741 F.3d 668, 672 (6th Cir. 2013) (quoting Franklin v. Massachusetts, 505 U.S. 788, 796
(1992)). Importantly, “[t]he APA is not a jurisdiction-conferring statute; it does not directly
grant subject matter jurisdiction to the federal courts.” Jama, 760 F.3d at 494 (citing Air Courier
Conference v. Am. Postal Workers Union, 498 U.S. 517, 523 n.3 (1991); Califano v. Sanders,
430 U.S. 99, 105 (1977)). Instead, “the judicial review provisions of the APA provide a limited
cause of action for parties adversely affected by agency action.”          Jama, 760 F.3d at 494
(citations omitted); see also Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs.,
763 F.2d 1441, 1445 n.1 (D.C. Cir. 1985). Thus, “[a]lthough the APA does not directly grant
jurisdiction, the federal question statute, 28 U.S.C. § 1331, ‘confer[s] jurisdiction on federal
courts to review agency action, regardless of whether the APA of its own force may serve as a
jurisdictional predicate.’” Jama, 760 F.3d at 494 (quoting Califano, 430 U.S. at 105); see also
Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008); Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 185 (D.C. Cir. 2006). Because the district court had subject matter jurisdiction
No. 15-1624                 Haines v. Fed. Motor Carrier Safety Admin., et al.                   Page 6


over Haines’ APA claim under the federal question statute, 28 U.S.C. § 1331, absent some other
jurisdictional bar, dismissal for lack of subject matter jurisdiction was inappropriate. See Jama,
760 F.3d at 494.

        The district court held that it lacked subject matter jurisdiction over the APA claim due to
Haines’ failure to exhaust his administrative remedies. Haines, 2015 WL 1912338, at *2–3.
However, as explained more fully below, since Haines was not required to exhaust his
administrative remedies before the FMCSA under the relevant statute or regulation, see
49 U.S.C. § 521(b)(5)(A), 49 C.F.R. § 386.72(b)(4), this was an erroneous rationale for
dismissing Haines’ APA claim on jurisdictional grounds.                   See Bangura, 434 F.3d at 498
(“Plaintiffs’ failure to exhaust their administrative remedies does not deprive this court of subject
matter jurisdiction over Plaintiffs’ APA claims . . . [because] [w]here an intra-agency appeal is
optional . . . the APA does not require a plaintiff to appeal prior to filing suit in federal court.”).

        Similarly, it was inappropriate for the district court to dismiss Haines’ APA claim for
lack of subject matter jurisdiction on the grounds that the out-of-service order was not a “final
agency action” within the meaning of the APA. Haines, 2015 WL 1912338, at *3–4. Because
the APA is not a jurisdiction-conferring statute, “[the] elements of a claim under the APA,
including the final agency action requirement, are not jurisdictional.” Jama, 760 F.3d at 494 &
n.4 (citing Trudeau, 456 F.3d at 184); see also Ctr. for Auto Safety v. Nat’l Highway Traffic
Safety Admin., 452 F.3d 798, 805–06 (D.C. Cir. 2006). Accordingly, whether the out-of-service
order constituted a “final agency action” under the APA is properly considered with regard to
whether Haines failed to state a claim upon which relief could be granted, not whether the
district court had subject matter jurisdiction over any such claim. See Jama, 760 F.3d at 494 n.4;
see also Funds for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 & n.4 (D.C. Cir.
2006) (noting that “[w]hether there has been ‘agency action’ or ‘final agency action’ within the
meaning of the APA are threshold questions,” but that these questions speak to failure to state a
claim under Rule 12(b)(6) rather than lack of subject matter jurisdiction under Rule 12(b)(1)).2


        2
          Because remand “‘would only require a new Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion,’”
remand is unnecessary to correct the district court’s error. Jama, 760 F.3d at 495 n.5 (quoting Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. 247, 254 (2010)).
No. 15-1624             Haines v. Fed. Motor Carrier Safety Admin., et al.          Page 7


       Although Haines’ failure to exhaust his administrative remedies did not deprive the
district court of jurisdiction over this matter, Defendants’ briefs identified a second, separate
jurisdictional bar that the district court did not address: sovereign immunity. Defendants argue
that the courts lack subject matter jurisdiction over Haines’ APA claim because the types of
relief sought in Haines’ complaint—specifically, money damages—are not covered by the
APA’s limited waiver of sovereign immunity. Haines maintains that the relief he seeks falls
within the APA’s limited waiver of sovereign immunity because he is requesting restitution, not
money damages.

       “The doctrine of sovereign immunity removes subject matter jurisdiction in lawsuits
against the United States unless the government has consented to suit.” Beamon v. Brown,
125 F.3d 965, 967 (6th Cir. 1997) (citing United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320,
1325 (6th Cir. 1993)); see also United States v. Mitchell, 463 U.S. 206, 212 (1983). As part of
its limited waiver of sovereign immunity, the APA provides that:

               A person suffering legal wrong because of agency action, or adversely
       affected or aggrieved by agency action within the meaning of a relevant statute, is
       entitled to judicial review thereof. An action in a court of the United States
       seeking relief other than money damages and stating a claim that an agency or an
       officer or employee thereof acted or failed to act in an official capacity or under
       color of legal authority shall not be dismissed nor relief therein be denied on the
       ground that it is against the United States or that the United States is an
       indispensable party.

5 U.S.C. § 702. Thus, the APA “provides a broad waiver of sovereign immunity,” limited by the
exceptions provided under the statute. Beamon, 125 F.3d at 967. Relevant to this case, although
“[t]he [APA] waives sovereign immunity for claims for equitable relief against federal officials,”
Capital Park Ltd. Dividend Hous. Ass’n v. Jackson, 202 F. App’x 873, 877 (6th Cir. 2006)
(emphasis added) (citations omitted), the waiver of sovereign immunity does not apply to actions
seeking money damages. 5 U.S.C. § 702; see Cohen v. United States, 650 F.3d 717, 723 (D.C.
Cir. 2011); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998).

       Analogizing this case to Bowen v. Massachusetts, 487 U.S. 879 (1988), Haines argues
that the relief he seeks is restitution, rather than money damages. Appellant’s Br. at 11. This
argument is unpersuasive.
No. 15-1624              Haines v. Fed. Motor Carrier Safety Admin., et al.           Page 8


       Bowen dealt with Massachusetts’ lawsuit for the reimbursement of Medicaid payments
allegedly owed by the federal government. 487 U.S. at 882–87. Before the Supreme Court, the
Secretary of the U.S. Department of Health and Human Services argued that the suit was not
authorized under the APA because it was a suit for money damages. Id. at 891. The Court
rejected this argument, explaining:

                 Our cases have long recognized the distinction between an action at law
       for damages—which [is] intended to provide a victim with monetary
       compensation for an injury to his person, property, or reputation—and an
       equitable action for specific relief—which may include an order providing
       for . . . “the recovery of specific property or monies.”

Id. at 893 (emphasis omitted) (citation omitted). While the term “‘money damages’ . . . normally
refers to a sum of money used as compensatory relief” or intended to “substitute for a suffered
loss,” specific remedies “‘are not substitute remedies at all, but attempt to give the plaintiff the
very thing to which he was entitled.’” Id. at 895 (emphasis omitted) (quoting Md. Dep’t of
Human Res., 763 F.2d at 1446). Accordingly, the Court held that Massachusetts’ lawsuit was a
suit “to enforce § 1396b(a) of the Medicaid Act, which provides that the Secretary ‘shall pay’
certain amounts for appropriate Medicaid services,” rather than “a suit seeking money in
compensation for the damage sustained by the failure of the Federal Government to pay as
mandated.” Id. at 900 (emphasis in original).

       In the instant case, Haines’ requested relief is readily distinguishable from the specific
relief at issue in Bowen. Haines seeks compensatory damages for his business losses, emotional
distress, and tarnished business reputation, as well as punitive and exemplary damages. These
are traditional money damages, meant to compensate Haines for his alleged injuries resulting
from the FMCSA’s actions. Nowhere in his complaint or briefs does Haines attribute, or even
attempt to connect, his requests for monetary relief to a statutory entitlement or mandate that
happens to require monetary payment. Instead, it is clear from Haines’ own characterization of
the requested relief—“damages in an amount commensurate” with his business and other
losses—that the monetary relief he seeks is “compensation for the damage sustained” due to the
FMCSA’s suspension of his operations. Cf. Bowen, 487 U.S. at 900–01.
No. 15-1624                  Haines v. Fed. Motor Carrier Safety Admin., et al.                       Page 9


         Overall, to the extent that Haines seeks monetary damages under the APA, we lack
jurisdiction over his claim.          5 U.S.C. § 702.        However, because the complaint also seeks
injunctive relief, we must address whether Haines’ APA claim should have survived a motion to
dismiss to the extent that it sought relief for which the federal government has waived sovereign
immunity.

                                         B. Failure to State a Claim

         Defendants argue that Haines’ APA claim was rightfully dismissed because he failed to
exhaust his administrative remedies.3 Haines, on the other hand, relies on the Supreme Court’s
holding in Darby v. Cisneros, 509 U.S. 137 (1993), to support his contention that he was not
required to exhaust his administrative remedies before bringing suit in federal court.

         “[The APA] only requires a plaintiff to exhaust his or her administrative remedies where
a statute or agency rule makes the remedies mandatory.” Bangura, 434 F.3d at 498 (citations
omitted). In this vein, the Supreme Court has held that because the APA “explicitly requires
exhaustion of all intra-agency appeals mandated either by statute or by agency rule[,] it would be
inconsistent with the plain language of [§ 704] for courts to require litigants to exhaust optional
appeals as well.” Darby, 509 U.S. at 146–47 (emphasis added). Accordingly, “[w]here an intra-
agency appeal is optional . . . , the APA does not require a plaintiff to appeal prior to filing suit in
federal court.” Bangura, 434 F.3d at 498 (citation omitted).

         Defendants maintain that Haines was required to exhaust his administrative remedies
before seeking judicial review under 49 U.S.C. § 521(b)(5)(A) and 49 C.F.R. § 386.72(b).
However, neither of these authorities supports Defendants’ argument. Section 521(b)(5)(A),
states that “[s]ubsequent to the issuance of [an out-of-service] order, opportunity for review shall
be provided in accordance with [the APA], except that such review shall occur not later than 10
days after issuance of such order.”                49 U.S.C. § 521(b)(5)(A) (emphasis added).                    The
corresponding regulation, which was cited in the out-of-service order under the heading entitled
“RIGHT TO REVIEW,” similarly provides that “[o]pportunity for review shall be provided in


         3
          Defendants, like the district court, erroneously frame this question in terms of subject matter jurisdiction
rather than failure to state a claim.
No. 15-1624             Haines v. Fed. Motor Carrier Safety Admin., et al.          Page 10


accordance with [the APA], except that such review shall occur not later than 10 days after
issuance of such order, as provided by [49 U.S.C. § 521(b)(5)].” 49 C.F.R. § 386.72(b)(4)
(emphasis added). Finally, a second DOT regulation on which Defendants tangentially rely
provides that:

               Any party to the underlying proceeding, who, after an administrative
       adjudication, is adversely affected by a Final Agency Order issued under 49
       U.S.C. [§] 521 may, within 30 days of service of the Final Agency Order, petition
       for review of the order in the United States Court of Appeals in the circuit where
       the violation is alleged to have occurred, or where the violator has its principal
       place of business or residence, or in the United States Court of Appeals for the
       District of Columbia Circuit.

49 C.F.R. § 386.67(a) (emphasis added). This language mirrors that of the related statutory
provision: 49 U.S.C. § 521(b)(9).

       As is clear from the language of those authorities—the italicized language in particular—
none of these provisions requires or mandates that a party subject to an out-of-service order
exhaust his or her administrative remedies with the FMCSA prior to filing suit in federal court.
Instead, these authorities refer to the plaintiff’s right to review of an out-of-service order in
permissive language, i.e., using the word “may” and describing the process as an “opportunity
for review.” 49 U.S.C. § 521 (b)(5)(A); 49 C.F.R. § 386.72(b)(4). Cf. Bangura, 434 F.3d at 498
(finding that exhaustion was not required by the relevant regulation where it “provid[ed] that a
party ‘may’ appeal to the [agency]”); Darby, 509 U.S. at 141, 146–47 (concluding that
administrative review was optional under a regulation providing that “[a]ny party may request
such a review in writing within 15 days of receipt of the hearing officer’s determination”)
(emphasis added) (citation and quotation marks omitted). Thus, it was error to dismiss Haines’
APA claim on the grounds that he failed to exhaust his administrative remedies because
exhaustion was neither required by statute nor by agency rule. See Darby, 509 U.S. at 146–47.

       Although we are not persuaded that Haines’ APA claim should have been dismissed for
lack of subject matter jurisdiction based on his failure to exhaust his administrative remedies,
dismissal was nonetheless warranted for failure to state a claim. This is because “[t]o state a
claim for relief under the APA, a plaintiff must allege that his or her injury stems from a final
agency action for which there is no other adequate remedy in court.” Bangura, 434 F.3d at 500
No. 15-1624                Haines v. Fed. Motor Carrier Safety Admin., et al.         Page 11


(citing 5 U.S.C. § 704; Gillis v. U.S. Dep’t of Health & Human Servs., 759 F.2d 565, 575 (6th
Cir. 1985) (emphasis added); see also Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012); Fligiel v.
Sampson, 440 F.3d 747, 751 (6th Cir. 2006). With regard to the “no other adequate remedy in
court” prerequisite, “[t]he essential inquiry is whether another statutory scheme of judicial
review exists so as to preclude review under the more general provisions of the APA.” Bangura,
434 F.3d at 501 (citations omitted); see also Bowen, 487 U.S. at 903 (“Congress did not intend
the general grant of review in the APA to duplicate existing procedures for review of agency
action.”). Haines does not argue that he had “no other adequate remedy in court” and we find
that he did have an adequate, alternative remedy available to him under the DOT statutes.
Accordingly, his APA claim should be dismissed for failure to state a claim.

        In Bangura, we found that a plaintiff had no other adequate remedy in court to challenge
the Immigration and Naturalization Service’s denial of her husband’s spousal immigration
petition because the applicable statute “d[id] not specifically provide for federal court review of
denials of visa petitions.” 434 F.3d at 492, 501–02. In light of this gap in the available statutory
remedies, we held that the plaintiff had no other adequate remedy in court. Id. at 501. No such
gap exists in this case.

        The statutory scheme governing out-of-service orders provides for judicial review, by this
Court or the D.C. Circuit, following administrative review by the FMCSA pursuant to 49 U.S.C.
§ 521(b)(5)(A). To that end, 49 U.S.C. § 521(b)(9) states:

                Any aggrieved person who, after a hearing, is adversely affected by a final
        order issued under this section may, within 30 days, petition for review of the
        order in the United States Court of Appeals in the circuit wherein the violation is
        alleged to have occurred or where the violator has his principal place of business
        or residence, or in the United States Court of Appeals for the District of Columbia
        Circuit.

The statute also provides that in reviewing a final order by the DOT Secretary, the court of
appeals is charged with determining “whether the Secretary’s findings and conclusions were
supported by substantial evidence, or were otherwise not in accordance with law.” 49 U.S.C.
§ 521(b)(9). Thus, had Haines sought review of the out-of-service order before the FMCSA and
found himself dissatisfied with the Secretary’s findings and conclusions, he could have sought
No. 15-1624                  Haines v. Fed. Motor Carrier Safety Admin., et al.                       Page 12


judicial review from this Court or the D.C. Circuit. Finally, Haines does not allege that he
elected not to seek administrative review because such a remedy would have been inadequate.4
Because the statute provides for review by an appellate court following administrative review,
and because the APA’s “no other adequate remedy in court” requirement is intended to “insure[]
that the APA’s general grant of jurisdiction to review agency decisions is not duplicative of more
specific statutory procedures for judicial review,” we find that Haines has failed to show that his
alleged injury “stems from a final agency action for which there is no other adequate remedy in
court.” See Bangura, 434 F.3d at 500–01.

         For the aforementioned reasons, we affirm the district court’s dismissal of Haines’ APA
claim on a ground supported by the record but not stated by the district court: Haines’ failure to
state a claim on which relief may be granted.

                                       II. The Constitutional Claims

         The district court dismissed Haines’ constitutional claims with prejudice for failure to
state a claim on which relief may be granted. We review that determination de novo. Jama,
760 F.3d at 494. In considering whether the allegations “‘plausibly suggest an entitlement to
relief,’” we must “[a]ccept[] all well-pleaded allegations in the complaint as true.” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009)).

                                                    A. § 1983

         Below, the district court found that Haines did not “state[] a claim for which relief may
granted with respect to his [constitutional claims]” because even though he was “suing only
federal actors, he nonetheless brought suit pursuant to 42 U.S.C. § 1983.” Haines, 2015 WL
1912338, at *4. The court concluded that “[b]ecause § 1983 does not apply to federal actors,”
Haines’ constitutional claims should be dismissed for failure to state a claim under
Rule 12(b)(6). Id.



         4
           To extent that Haines argues that Defendants somehow prevented him from contesting the out-of-service
order, this contention is plainly belied by Haines’ failure to allege that he actually sought administrative review of
the order, as well as the order’s “RIGHT TO REVIEW” section, which directed Haines’ attention to the regulations
governing administrative review.
No. 15-1624              Haines v. Fed. Motor Carrier Safety Admin., et al.           Page 13


       “To establish a claim under § 1983, a plaintiff must show that he was deprived of rights
guaranteed under the United States Constitution or federal law by a person acting ‘under color of
state law.’” Strickland on Behalf of Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997). In
this case, Haines brought his constitutional claims against a federal agency—the FMCSA—and
three FMCSA agents. However, as a general matter, “[t]he federal government and its officials
are not subject to suit under [§ 1983].” Conner v. Greef, 99 F. App’x 577, 580 (6th Cir. 2004)
(citing Ana Leon T. v. Fed. Reserve Bank, 823 F.2d 928, 931 (6th Cir.1987)). This is because
actions taken by federal agencies are “governed by and are taken pursuant to [federal statute],”
Ana Leon T., 823 F.2d at 931, and “federal officials typically act under color of federal law,”
Strickland, 123 F.3d at 866 (emphasis in original). It was in recognition of this legal misstep—
bringing a § 1983 action against a federal agency and its officials—that Haines sought leave to
amend his complaint to allege a claim under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Accordingly, we affirm the district court’s dismissal
of Haines’ § 1983 claims.

                                            B. Bivens

       Although Haines acknowledged that pursuing his constitutional claims under § 1983 was
improper, he requested leave to amend his complaint to pursue the same claims under Bivens.
Haines also sought leave to amend the complaint to name defendants Darling, Jones, and Ferro
in their individual, rather than official, capacities. The district court denied Haines’ request for
leave to amend his complaint on the grounds that (1) any Bivens claims would be time-barred by
Michigan’s three-year statute of limitations; and (2) a Bivens remedy was not available because
Haines had an adequate, alternative remedy.

                                    1. Statute of Limitations

       “We apply de novo review to a ruling dismissing claims as barred by the statute of
limitations.” Durand v. Hanover Ins. Grp., Inc., 806 F.3d 367, 374 (6th Cir. 2015) (citing In re
Vertrue Inc. Mktg. & Sales Litig., 719 F.3d 474, 478 (6th Cir. 2013)).

       In Michigan, civil rights actions are subject to a three-year statute of limitations. Mich.
Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986) (per curiam).
No. 15-1624              Haines v. Fed. Motor Carrier Safety Admin., et al.            Page 14


Since the FMCSA issued the out-of-service order that allegedly caused Haines’ injuries on
June 10, 2011, the three-year statute of limitations began to run on that date. Haines did not file
the instant lawsuit, however, until November 19, 2014. On this basis, the district court found
that Haines’ constitutional claims, even if re-cast as Bivens claims, were time-barred. Haines,
2015 WL 1912338, at *5.

       On appeal, Haines contends that although the district court “correctly applied [the]
Michigan statute of limitations,” it erred by failing to apply Michigan’s tolling statute.
Appellant’s Br. at 6–10. In support of this argument, Haines filed a motion requesting that this
Court take judicial notice of his complaint filed against Defendants on June 3, 2014, which was
allegedly dismissed by the district court without prejudice on November 12, 2014.

       We decline to entertain Haines’ tolling argument or his request for judicial notice. Even
though Defendants first argued that any Bivens claim brought by Haines would be time-barred by
Michigan’s three-year statute of limitations in their motion to dismiss, Haines failed to address
this argument or raise the issue of tolling in his response to the motion or his perfunctory motion
for leave to amend. “It is well-settled that this [C]ourt will not consider arguments raised for the
first time on appeal unless [the] failure to consider the issue will result in a plain miscarriage of
justice.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002)
(citation omitted). This general rule of waiver applies with equal force in cases involving issues
pertaining to the statute of limitations or tolling thereof. See, e.g., Pate v. Huntington Nat’l
Bank, 560 F. App’x 506, 511 (6th Cir. 2014) (tolling); Exp.-Imp. Bank of U.S. v. Advanced
Polymer Sci., Inc., 604 F.3d 242, 247–48 (6th Cir. 2010) (statute of limitations). Further, as
explained below, declining to address Haines’ tolling argument would not result in a miscarriage
of justice because Haines’ Bivens claims could not survive a motion to dismiss. See One Beacon
Ins. Co. v. Chiusolo, 295 F. App’x 771, 776 (6th Cir. 2008).

                               2. Adequate, Alternative Remedy

       Defendants argue that it would be futile to grant Haines leave to include his proposed
Bivens claims in an amended complaint because there is no basis for recognizing a new Bivens
remedy on the facts of this case, and Haines’ claims, therefore, would not survive a motion to
No. 15-1624              Haines v. Fed. Motor Carrier Safety Admin., et al.           Page 15


dismiss. Adopting this reasoning, the district court denied Haines’ motion to amend. Haines,
2015 WL 1912338, at *5–6. We review de novo the denial of a motion for leave to amend on the
grounds that the amended pleading would not survive a motion to dismiss. Total Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437 (6th Cir. 2008).

       In Bivens, the Supreme Court “held that a victim of a Fourth Amendment violation by
federal officers may bring suit for money damages against the officers in federal court.” Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).           Recognizing that “Congress had never
provided for a private right of action against federal officers,” and “‘the Fourth Amendment does
not in so many words provide for its enforcement by award of money damages for the
consequences of its violation,’” the Court implied a new constitutional tort in order to redress the
plaintiff’s constitutional injury. Id. at 66–67 (quoting Bivens, 403 U.S. at 396). In the years
following Bivens, the Court also recognized “an implied damages remedy under the Due Process
Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and the Cruel and
Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).”
Id. at 67. However, since deciding Carlson in 1980, the Supreme Court has “consistently
refused to extend Bivens liability to any new context or new category of defendants.” Id. at 68;
see also Minneci v. Pollard, 132 S. Ct. 617, 622 (2012).

       “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.” Left Fork Mining Co. v. Hooker, 775 F.3d 768, 774 (6th Cir.
2014) (citing 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.” Left Fork, 775 F.3d at 774 (citing Wilkie v. Robbins, 551 U.S. 537,
550 (2007)).

       In this case, Haines’ proposed second amended complaint alleges that Defendants
violated Haines’ constitutional right to procedural due process by “den[ying] [Haines] [the]
orderly adjudication of [his] alleged safety violations.”      (R. 11-1, [Proposed] Second Am.
Compl. ¶ 48). He apparently attributes this conduct to defendants Jones and Ferro, not just the
FMCSA, which cannot be sued under Bivens. FDIC v. Meyer, 510 U.S. 471, 486 (1994).
No. 15-1624              Haines v. Fed. Motor Carrier Safety Admin., et al.            Page 16


Additionally, Haines alleges that Defendants violated his constitutional right to equal protection
of the laws by singling him out in their application of the sleeper berth regulation, and arbitrarily
changing their determinations to drive him out of business—conduct Haines alleges “differ[ed]
drastically” from Defendants’ treatment of other commercial carriers.              Accepting these
allegations as true, see Williams, 631 F.3d at 383, we find that Haines has sufficiently alleged
that the challenged action (the arbitrary and capricious enforcement of the FMCSA regulations)
was attributable to persons (Jones and Ferro) acting under color of federal law (the DOT statutes
and regulations). See Left Fork, 775 F.3d at 774. Additionally, Haines has alleged that this
conduct deprived him of his constitutionally protected interests in his property (his business
operations) with respect to his due process claim, see id., and equal protection under the laws.
See Davis, 442 U.S. at 235. Thus, we must next determine whether a Bivens remedy is available
to redress Haines’ claims.

       “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.’” Left
Fork, 775 F.3d at 774 (quoting Wilkie, 551 U.S. at 550). “When the design of a Government
program suggests that Congress has provided what it considers adequate remedial mechanisms
for constitutional violations that may occur in the course of its administration, we have not
created additional Bivens remedies.” Schweiker, 487 U.S. at 423. Thus, “[s]o long as the
plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed
judicial imposition of a new substantive liability.” Corr. Servs. Corp., 534 U.S. at 69 (citation
omitted).

       In the instant case, 49 U.S.C. § 521(b)(5)(A) and 49 C.F.R. § 386.72(b)(4), in
combination with 49 U.S.C. § 521(b)(9) and 49 C.F.R. § 386.67, provided an adequate,
alternative procedure for protecting Haines’ constitutional interests because they permit judicial
review, by an appellate court, of a commercial carrier’s challenge to an out-of-service order.
Haines had the opportunity to seek administrative review under 49 U.S.C. § 521(b)(5)(A). If he
was dissatisfied with the result of his hearing before the FMCSA, he could have petitioned for
review by this Court or the D.C. Circuit, and either court would have been charged with
No. 15-1624             Haines v. Fed. Motor Carrier Safety Admin., et al.          Page 17


determining whether “the Secretary’s findings and conclusions were supported by substantial
evidence, or were otherwise not in accordance with law.” 49 U.S.C. § 521(b)(9) (emphasis
added). Thus, there is no indication—from the statutory text or Haines himself—that Haines
would not have been able to raise and adjudicate his constitutional claims through this statutory
procedure, even if the claims were considered for the first time by the reviewing appellate court.
For these reasons, we find that an adequate, alternative process for protecting Haines’
constitutional interests existed under 49 U.S.C. § 521(b)(5)(A) and (b)(9). The availability of
this statutory mechanism, which gave Haines a meaningful remedy to redress his alleged
injuries, also weighs against recognizing a new Bivens remedy in this lawsuit. See Left Fork,
775 F.3d at 776 (citing Schweiker, 487 U.S. at 423). Thus, we affirm the district court’s denial
of Haines’ motion for leave to amend.

                                        CONCLUSION

       For the reasons stated in this opinion, we AFFIRM the district court’s grant of
Defendants’ motion to dismiss and denial of Haines’ motion for leave to amend.
