Wilkie v. Robbins

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WILKIE ET AL. v. ROBBINS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 06–219. Argued March 19, 2007—Decided June 25, 2007

Plaintiff-respondent Robbins’s Wyoming guest ranch is a patchwork of

land parcels intermingled with tracts belonging to other private own

ers, the State of Wyoming, and the National Government. The previ

ous owner granted the United States an easement to use and main

tain a road running through the ranch to federal land in return for a

right-of-way to maintain a section of road running across federal land

to otherwise isolated parts of the ranch. When Robbins bought the

ranch, he took title free of the easement, which the Bureau had not

recorded. Robbins continued to graze cattle and run guest cattle

drives under grazing permits and a Special Recreation Use Permit

(SRUP) issued by the Bureau of Land Management. Upon learning

that the easement was never recorded, a Bureau official demanded

that Robbins regrant it, but Robbins declined. Robbins claims that

after negotiations broke down, defendant-petitioners (defendants) be

gan a campaign of harassment and intimidation to force him to re

grant the lost easement.

Robbins’s suit for damages and declaratory and injunctive relief

now includes a Racketeer Influenced and Corrupt Organizations Act

(RICO) claim that defendants repeatedly tried to extort an easement

from him and a similarly grounded Bivens v. Six Unknown Fed. Nar

cotics Agents, 403 U. S. 388, claim that defendants violated his

Fourth and Fifth Amendment rights. Ultimately, the District Court

denied defendants’ motion to dismiss the RICO claim based on quali

fied immunity. As to the Bivens claims, it dismissed what Robbins

called his Fourth Amendment malicious prosecution claim and his

Fifth Amendment due process claims, but declined to dismiss a Fifth

Amendment claim of retaliation for the exercise of Robbins’s rights to

exclude the Government from his property and to refuse to grant a

2 WILKIE v. ROBBINS

Syllabus

property interest without compensation. It adhered to this denial on

summary judgment. The Tenth Circuit affirmed.

Held:

1. Robbins does not have a private action for damages of the sort

recognized in Bivens. Pp. 9–23.

(a) In deciding whether to devise a Bivens remedy for retaliation

against the exercise of ownership rights, the Court’s first step is to

ask whether any alternative, existing process for protecting the in

terest amounts to a convincing reason for the Judicial Branch to re

frain from providing a new and freestanding damages remedy. Bush

v. Lucas, 462 U. S. 367, 378. But even absent an alternative, a

Bivens remedy is a subject of judgment: “the federal courts must

make the kind of remedial determination that is appropriate for a

common-law tribunal, paying particular heed . . . to any special fac

tors counselling hesitation before authorizing a new kind of federal

litigation.” Ibid. Pp. 9–11.

(b) For purposes of step one, Robbins’s difficulties with the Bu

reau can be divided into four categories. The first, torts or tort-like

injuries, includes an unauthorized survey of the desired easement’s

terrain and an illegal entry into Robbins’s lodge. In each instance, he

had a civil damages remedy for trespass, which he did not pursue.

The second category, charges brought against Robbins, includes ad

ministrative claims for trespass and other land-use violations, a fine

for an unauthorized road repair, and two criminal charges. Robbins

had the opportunity to contest all of the administrative charges; he

fought some of the land-use and trespass citations, and challenged

the road repair fine as far as the Interior Board of Land Appeals

(IBLA), but did not seek judicial review after losing there. He exer

cised his right to jury trial on the criminal complaints. The fact that

the jury took 30 minutes to acquit him tends to support his baseless-

prosecution charge; but the federal trial judge did not find the Gov

ernment’s case thin enough to justify attorney’s fees, and Robbins

appealed that ruling late. The third category, unfavorable agency ac

tions, involved a 1995 cancellation of the right-of-way given to Rob

bins’s predecessor in return for the Government’s unrecorded ease

ment, a 1995 decision to reduce the SRUP from five years to one, and

in 1999, the SRUP’s termination and a grazing permit’s revocation.

Administrative review was available for each claim, subject to ulti

mate judicial review under the Administrative Procedure Act. Rob

bins did not appeal the 1995 decisions, stopped after an IBLA appeal

of the SRUP denial, and obtained an IBLA stay of the grazing permit

revocation. The fourth category includes three events that elude

classification. An altercation between Robbins and his neighbor did

not implicate the Bureau, and no criminal charges were filed. Bu

Cite as: 551 U. S. ____ (2007) 3

Syllabus

reau employees’ videotaping of ranch guests during a cattle drive,

though annoying and possibly bad for business, may not have been

unlawful, depending, e.g., on whether the guests were on public or

private land. Also, the guests might be the proper plaintiffs in any

tort action, and any tort might be chargeable against the Govern

ment, not its employees. Likewise up in the air is the significance of

an attempt to pressure a Bureau of Indian Affairs employee to im

pound Robbins’s cattle. An impoundment’s legitimacy would have

depended on whether the cattle were on private or public land, and

no impoundment actually occurred. Thus, Robbins has an adminis

trative, and ultimately a judicial, process for vindicating virtually all

of his complaints. This state of law gives him no intuitively meritori

ous case for a new constitutional cause of action, but neither does it

plainly answer no to the question whether he should have it. Pp. 11–

14.

(c) This, then, is a case for Bivens step two, for weighing reasons

for and against creating a new cause of action, as common law judges

have always done. Robbins concedes that any single action might

have been brushed aside as a small imposition, but says that in the

aggregate the campaign against him amounted to coercion to extract

the easement and should be redressed collectively. On the other side

of the ledger is the difficulty in defining a workable cause of action.

Robbins’s claim of retaliation for exercising his property right to ex

clude the Government does not fit this Court’s retaliation cases,

which involve an allegation of impermissible purpose and motiva

tion—e.g., an employee is fired after speaking out on matters of pub

lic concern, Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S.

668, 675—and whose outcome turns on “what for” questions—what

was the Government’s purpose in firing the employee and would he

have been fired anyway. Such questions have definite answers, and

this Court has established methods to identify the presence of an il

licit reason. Robbins alleges not that the Government’s means were

illegitimate but that the defendants simply demanded too much and

went too far. However, a “too much” kind of liability standard can

never be as reliable as a “what for” one. Most of the offending actions

are legitimate tactics designed to improve the Government’s negotiat

ing position. Although the Government is no ordinary landowner, in

many ways it deals with its neighbors as one owner among the rest.

So long as defendants had authority to withhold or withdraw Rob

bins’s permission to use Government land and to enforce the trespass

and land-use rules, they were within their rights to make it plain

that Robbins’s willingness to give an easement would determine how

complaisant they would be about his trespasses on public land. As

for Robbins’s more abstract claim, recognizing a Bivens action for re

4 WILKIE v. ROBBINS

Syllabus

taliation against those who resist Government impositions on their

property rights would invite claims in every sphere of legitimate gov

ernmental action affecting property interests, from negotiating tax

claim settlements to enforcing Occupational Safety and Health Ad

ministration regulations. Pp. 14–23.

2. RICO does not give Robbins a claim against defendants in their

individual capacities. Robbins argues that the predicate act for his

RICO claim is a violation of the Hobbs Act, which criminalizes inter

ference with interstate commerce by extortion, along with attempts

or conspiracies, 18 U. S. C. §1951(a), and defines extortion as “the ob

taining of property from another, with his consent . . . under color of

official right,” §1951(b)(2). Robbins’s claim fails because the Hobbs

Act does not apply when the National Government is the intended

beneficiary of allegedly extortionate acts. That Act does not speak

explicitly to efforts to obtain property for the Government rather

than a private party, so the question turns on the common law con

ception of “extortion,” which Congress is presumed to have incorpo

rated into the Act in 1946, see, e.g., Scheidler v. National Organiza

tion for Women, Inc., 537 U. S. 393, 402. At common law, extortion

“by the public official was the rough equivalent of what [is] now de

scribe[d] as ‘taking a bribe.’ ” Evans v. United States, 504 U. S. 255,

260. While public officials were not immune from extortion charges

at common law, that crime focused on the harm of public corruption,

by selling public favors for private gain, not on the harm caused by

overzealous efforts to obtain property on the Government’s behalf.

The importance of the line between public and private beneficiaries is

confirmed by this Court’s case law, which is completely barren of an

example of extortion under color of official right undertaken for the

sole benefit of the Government. More tellingly, Robbins cites no deci

sion by any court, much less this one, in the Hobbs Act’s entire 60

year history finding extortion in Government employees’ efforts to get

property for the Government’s exclusive benefit. United States v.

Green, 350 U. S. 415, 420, which held that “extortion as defined in

the [Hobbs Act] in no way depends upon having a direct benefit con

ferred on the person who obtains the property,” does not support

Robbins’s claim that Congress could not have meant to prohibit ex

tortionate acts in the interest of private entities like unions, but ig

nore them when the intended beneficiary is the Government. With

out some other indication from Congress, it is not reasonable to

assume that the Hobbs Act (let alone RICO) was intended to expose

all federal employees to extortion charges whenever they stretch in

trying to enforce Government property claims. Because defendants’

conduct does not fit the traditional definition of extortion, it also does

not survive as a RICO predicate offense on the theory that it is

Cite as: 551 U. S. ____ (2007) 5

Syllabus

“chargeable under [Wyoming] law and punishable by imprisonment

for more than one year,” 18 U. S. C. §1961(1)(A). Pp. 23–28.

433 F. 3d 755, reversed and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined,

and in which STEVENS and GINSBURG, JJ., joined as to Part III. THO

MAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINS

BURG, J., filed an opinion concurring in part and dissenting in part, in

which STEVENS, J., joined.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–219

_________________

CHARLES WILKIE, ET AL., PETITIONERS v.

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 25, 2007]

JUSTICE SOUTER delivered the opinion of the Court.

Officials of the Bureau of Land Management stand

accused of harassment and intimidation aimed at extract

ing an easement across private property. The questions

here are whether the landowner has either a private

action for damages of the sort recognized in Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), or a

claim against the officials in their individual capacities

under the Racketeer Influenced and Corrupt Organiza

tions Act (RICO), 18 U. S. C. §§1961–1968 (2000 ed. and

Supp. IV). We hold that neither action is available.

I

A

Plaintiff-respondent Frank Robbins owns and operates

the High Island Ranch, a commercial guest resort in Hot

Springs County, Wyoming, stretching across some 40

miles of territory. The ranch is a patchwork of mostly

contiguous land parcels intermingled with tracts belong

ing to other private owners, the State of Wyoming, and the

National Government. Its natural resources include

wildlife and mineral deposits, and its mountainous west

2 WILKIE v. ROBBINS

Opinion of the Court

ern portion, called the upper Rock Creek area, is a place of

great natural beauty. In response to persistent requests

by environmentalists and outdoor enthusiasts, the Bureau

tried to induce the ranch’s previous owner, George Nelson,

to grant an easement for public use over South Fork Owl

Creek Road, which runs through the ranch and serves as a

main route to the upper Rock Creek area. For a while,

Nelson refused from fear that the public would disrupt his

guests’ activities, but shortly after agreeing to sell the

property to Robbins, in March 1994, Nelson signed a

nonexclusive deed of easement giving the United States

the right to use and maintain the road along a stretch of

his property. In return, the Bureau agreed to rent Nelson

a right-of-way to maintain a different section of the road

as it runs across federal property and connects otherwise

isolated parts of Robbins’s holdings.

In May 1994, Nelson conveyed the ranch to Robbins,

who continued to graze cattle and run guest cattle drives

in reliance on grazing permits and a Special Recreation

Use Permit (SRUP) issued by the Bureau. But Robbins

knew nothing about Nelson’s grant of the easement across

South Fork Owl Creek Road, which the Bureau had failed

to record, and upon recording his warranty deed in Hot

Springs County, Robbins took title to the ranch free of the

easement, by operation of Wyoming law. See Wyo. Stat.

Ann. §34–1–120 (2005).

When the Bureau’s employee Joseph Vessels1 discov

ered, in June 1994, that the Bureau’s inaction had cost it

the easement, he telephoned Robbins and demanded an

easement to replace Nelson’s. Robbins refused but indi

cated he would consider granting one in return for some

thing. In a later meeting, Vessels allegedly told Robbins

that “ ‘the Federal Government does not negotiate,’ ” and

——————

1 Vessels was named as a defendant when the complaint was filed,

but he has since died.

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

talks broke down. Brief for Respondent 5. Robbins says

that over the next several years the defendant-petitioners

(hereinafter defendants), who are current and former

employees of the Bureau, carried on a campaign of har

assment and intimidation aimed at forcing him to regrant

the lost easement.

B

Robbins concedes that any single one of the offensive

and sometimes illegal actions by the Bureau’s officials

might have been brushed aside as a small imposition, but

says that in the aggregate the campaign against him

amounted to coercion to extract the easement and should

be redressed collectively. The substance of Robbins’s

claim, and the degree to which existing remedies available

to him were adequate, can be understood and assessed

only by getting down to the details, which add up to a long

recitation.2

In the summer of 1994, after the fruitless telephone

conversation in June, Vessels wrote to Robbins for permis

sion to survey his land in the area of the desired ease

ment. Robbins said no, that it would be a waste of time

for the Bureau to do a survey without first reaching

agreement with him. Vessels went ahead with a survey

anyway, trespassed on Robbins’s land, and later boasted

about it to Robbins. Not surprisingly, given the lack of

damage to his property, Robbins did not file a trespass

complaint in response.

Mutual animosity grew, however, and one Bureau em

ployee, Edward Parodi, was told by his superiors to “look

closer” and “investigate harder” for possible trespasses

and other permit violations by Robbins. App. 128–129.

Parodi also heard colleagues make certain disparaging

——————

2 Because this case arises on interlocutory appeal from denial of de

fendants’ motion for summary judgment, we recite the facts in the light

most favorable to Robbins.

4 WILKIE v. ROBBINS

Opinion of the Court

remarks about Robbins, such as referring to him as “the

rich SOB from Alabama [who] got [the Ranch].” Id., at

121. Parodi became convinced that the Bureau had mis

treated Robbins and described its conduct as “the volcanic

point” in his decision to retire. Id., at 133.

Vessels and his supervisor, defendant Charles Wilkie,

continued to demand the easement, under threat to cancel

the reciprocal maintenance right-of-way that Nelson had

negotiated. When Robbins would not budge, the Bureau

canceled the right-of-way, citing Robbins’s refusal to grant

the desired easement and failure even to pay the rental

fee. Robbins did not appeal the cancellation to the Interior

Board of Land Appeals (IBLA) or seek judicial review

under the Administrative Procedure Act (APA), 5 U. S. C.

§702.

In August 1995, Robbins brought his cattle to a water

source on property belonging to his neighbor, LaVonne

Pennoyer. An altercation ensued, and Pennoyer struck

Robbins with her truck while he was riding a horse.

Plaintiff-Appellee’s Supp. App. in No. 04–8016 (CA10), pp.

676–681 (hereinafter CA10 App.); Pl. Exh. 2, Record 164–

166; Pl. Exh. 35a, id., at 102–108. Defendant Gene Leone

fielded a call from Pennoyer regarding the incident, en

couraged her to contact the sheriff, and himself placed

calls to the sheriff suggesting that Robbins be charged

with trespass. After the incident, Parodi claims that

Leone told him: “I think I finally got a way to get [Rob

bins’s] permits and get him out of business.” App. 125,

126.

In October 1995, the Bureau claimed various permit

violations and changed the High Island Ranch’s 5-year

SRUP to a SRUP subject to annual renewal. According to

Robbins, losing the 5-year SRUP disrupted his guest

ranching business, owing to the resulting uncertainty

about permission to conduct cattle drives. Robbins de

clined to seek administrative review, however, in part

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

because Bureau officials told him that the process would

be lengthy and that his permit would be suspended until

the IBLA reached a decision.3

Beginning in 1996, defendants brought administrative

charges against Robbins for trespass and other land-use

violations. Robbins claimed some charges were false,

and others unfairly selective enforcement, and he took

all of them to be an effort to retaliate for refusing the

Bureau’s continuing demands for the easement. He con

tested a number of these charges, but not all of them,

administratively.

In the spring of 1997, the South Fork Owl Creek Road,

the only way to reach the portions of the ranch in the Rock

Creek area, became impassable. When the Bureau re

fused to repair the section of road across federal land,

Robbins took matters into his own hands and fixed the

public road himself, even though the Bureau had refused

permission. The Bureau fined Robbins for trespass, but

offered to settle the charge and entertain an application to

renew the old maintenance right-of-way. Instead, Robbins

appealed to the IBLA, which found that Robbins had

admitted the unauthorized repairs when he sent the Bu

reau a bill for reimbursement. The Board upheld the fine,

In re Robbins, 146 I. B. L. A. 213 (1998), and rejected

Robbins’s claim that the Bureau was trying to “ ‘black

mail’ ” him into providing the easement; it said that “[t]he

record effectively shows . . . intransigence was the tactic of

Robbins, not [the] BLM.” Id., at 219. Robbins did not seek

judicial review of the IBLA’s decision.

In July 1997, defendant Teryl Shryack and a colleague

entered Robbins’s property, claiming the terms of a fence

——————

3 According to Robbins, Bureau officials neglected to mention his right

to seek a stay of the Bureau’s adverse action pending the IBLA’s

resolution of his appeal. See 43 CFR §4.21 (2006). Such a stay, if

granted, would have permitted Robbins to continue to operate under

the 5-year SRUP.

6 WILKIE v. ROBBINS

Opinion of the Court

easement as authority. Robbins accused Shryack of

unlawful entry, tore up the written instrument, and or

dered her off his property. Later that month, after a

meeting about trespass issues with Bureau officials, Mi

chael Miller, a Bureau law enforcement officer, questioned

Robbins without advance notice and without counsel about

the incident with Shryack. The upshot was a charge with

two counts of knowingly and forcibly impeding and inter

fering with a federal employee, in violation of 18 U. S. C.

§111 (2000 ed. and Supp. IV), a crime with a penalty of up

to one year in prison. A jury acquitted Robbins in Decem

ber, after deliberating less than 30 minutes. United States

v. Robbins, 179 F. 3d 1268, 1269 (CA10 1999). According

to a news story, the jurors “were appalled at the actions of

the government” and one said that “Robbins could not

have been railroaded any worse . . . if he worked for the

Union Pacific.” CA10 App. 852. Robbins then moved for

attorney’s fees under the Hyde Amendment, §617, 111

Stat. 2519, note following 18 U. S. C. §3600A, arguing that

the position of the United States was vexatious, frivolous,

or in bad faith. The trial judge denied the motion, and

Robbins appealed too late. See 179 F. 3d, at 1269–1270.

In 1998, Robbins brought the lawsuit now before us,

though there was further vexation to come. In June 1999,

the Bureau denied Robbins’s application to renew his

annual SRUP, based on an accumulation of land-use

penalties levied against him. Robbins appealed, the IBLA

affirmed, In re Robbins, 154 I. B. L. A. 93 (2000), and

Robbins did not seek judicial review. Then, in August, the

Bureau revoked the grazing permit for High Island Ranch,

claiming that Robbins had violated its terms when he kept

Bureau officials from passing over his property to reach

public lands. Robbins appealed to the IBLA, which stayed

the revocation pending resolution of the appeal. Order in

Robbins v. Bureau of Land Management, IBLA 2000–12

(Nov. 10, 1999), CA10 App. 1020.

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

The stay held for several years, despite periodic friction.

Without a SRUP, Robbins was forced to redirect his guest

cattle drives away from federal land and through a moun

tain pass with unmarked property boundaries. In August

2000, Vessels and defendants Darrell Barnes and Miller

tried to catch Robbins trespassing in driving cattle over a

corner of land administered by the Bureau. From a

nearby hilltop, they videotaped ranch guests during the

drive, even while the guests sought privacy to relieve

themselves. That afternoon, Robbins alleges, Barnes and

Miller broke into his guest lodge, left trash inside, and

departed without closing the lodge gates.

The next summer, defendant David Wallace spoke with

Preston Smith, an employee of the Bureau of Indian Af

fairs who manages lands along the High Island Ranch’s

southern border, and pressured him to impound Robbins’s

cattle. Smith told Robbins, but did nothing more.

Finally, in January 2003, tension actually cooled to the

point that Robbins and the Bureau entered into a settle

ment agreement that, among other things, established a

procedure for informal resolution of future grazing dis

putes and stayed 16 pending administrative appeals with

a view to their ultimate dismissal, provided that Robbins

did not violate certain Bureau regulations for a 2-year

period. The settlement came apart, however, in January

2004, when the Bureau began formal trespass proceedings

against Robbins and unilaterally voided the settlement

agreement. Robbins tried to enforce the agreement in

federal court, but a district court denied relief in a decision

affirmed by the Court of Appeals in February 2006. Rob

bins v. Bureau of Land Management, 438 F. 3d 1074

(CA10).

C

In this lawsuit (brought, as we said, in 1998), Robbins

asks for compensatory and punitive damages as well as

8 WILKIE v. ROBBINS

Opinion of the Court

declaratory and injunctive relief. Although he originally

included the United States as a defendant, he voluntarily

dismissed the Government, and pressed forward with a

RICO claim charging defendants with repeatedly trying to

extort an easement from him, as well as a similarly

grounded Bivens claim that defendants violated his

Fourth and Fifth Amendment rights. Defendants filed a

motion to dismiss on qualified immunity and failure to

state a claim, which the District Court granted, holding

that Robbins inadequately pleaded damages under RICO

and that the APA and the Federal Tort Claims Act

(FTCA), 28 U. S. C. §1346, were effective alternative

remedies that precluded Bivens relief. The Court of Ap

peals for the Tenth Circuit reversed on both grounds, 300

F. 3d 1208, 1211 (2002), although it specified that Bivens

relief was available only for those “constitutional viola

tions committed by individual federal employees unrelated

to final agency action,” 300 F. 3d, at 1212.

On remand, defendants again moved to dismiss on

qualified immunity. As to the RICO claim, the District

Court denied the motion; as to Bivens, it dismissed what

Robbins called the Fourth Amendment claim for malicious

prosecution and those under the Fifth Amendment for due

process violations, but it declined to dismiss the Fifth

Amendment claim of retaliation for the exercise of Rob

bins’s right to exclude the Government from his property

and to refuse any grant of a property interest without

compensation. After limited discovery, defendants again

moved for summary judgment on qualified immunity. The

District Court adhered to its earlier denial.

This time, the Court of Appeals affirmed, after dealing

with collateral order jurisdiction to consider an interlocu

tory appeal of the denial of qualified immunity, 433 F. 3d

755, 761 (2006) (citing Mitchell v. Forsyth, 472 U. S. 511,

530 (1985)). It held that Robbins had a clearly established

right to be free from retaliation for exercising his Fifth

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

Amendment right to exclude the Government from his

private property, 433 F. 3d, at 765–767, and it explained

that Robbins could go forward with the RICO claim be

cause Government employees who “engag[e] in lawful

actions with an intent to extort a right-of-way from [a

landowner] rather than with an intent to merely carry out

their regulatory duties” commit extortion under Wyoming

law and within the meaning of the Hobbs Act, 18 U. S. C.

§1951. 433 F. 3d, at 768. The Court of Appeals rejected

the defense based on a claim of the Government’s legal

entitlement to demand the disputed easement: “if an

official obtains property that he has lawful authority to

obtain, but does so in a wrongful manner, his conduct

constitutes extortion under the Hobbs Act.” Id., at 769.

Finally, the Court of Appeals said again that “Robbins’[s]

allegations involving individual action unrelated to final

agency action are permitted under Bivens.” Id., at 772.

The appeals court declined defendants’ request “to deter

mine which allegations remain and which are precluded,”

however, because defendants had not asked the District

Court to sort them out. Ibid.

We granted certiorari, 549 U. S. ___ (2006), and now

reverse.

II

The first question is whether to devise a new Bivens

damages action for retaliating against the exercise of

ownership rights, in addition to the discrete administra

tive and judicial remedies available to a landowner like

Robbins in dealing with the Government’s employees.4

——————

4 We recognized just last Term that the definition of an element of the

asserted cause of action was “directly implicated by the defense of

qualified immunity and properly before us on interlocutory appeal.”

Hartman v. Moore, 547 U. S. 250, 257, n. 5 (2006). Because the same

reasoning applies to the recognition of the entire cause of action, the

Court of Appeals had jurisdiction over this issue, as do we.

10 WILKIE v. ROBBINS

Opinion of the Court

Bivens, 403 U. S. 388, held that the victim of a Fourth

Amendment violation by federal officers had a claim for

damages, and in the years following we have recognized

two more nonstatutory damages remedies, the first for

employment discrimination in violation of the Due Process

Clause, Davis v. Passman, 442 U. S. 228 (1979), and the

second for an Eighth Amendment violation by prison

officials, Carlson v. Green, 446 U. S. 14 (1980). But we

have also held that any freestanding damages remedy for

a claimed constitutional violation has to represent a judg

ment about the best way to implement a constitutional

guarantee; it is not an automatic entitlement no matter

what other means there may be to vindicate a protected

interest, and in most instances we have found a Bivens

remedy unjustified. We have accordingly held against

applying the Bivens model to claims of First Amendment

violations by federal employers, Bush v. Lucas, 462 U. S.

367 (1983), harm to military personnel through activity

incident to service, United States v. Stanley, 483 U. S. 669

(1987); Chappell v. Wallace, 462 U. S. 296 (1983), and

wrongful denials of Social Security disability benefits,

Schweiker v. Chilicky, 487 U. S. 412 (1988). We have seen

no case for extending Bivens to claims against federal

agencies, FDIC v. Meyer, 510 U. S. 471 (1994), or against

private prisons, Correctional Services Corp. v. Malesko,

534 U. S. 61 (2001).

Whatever the ultimate conclusion, however, our consid

eration of a Bivens request follows a familiar sequence,

and on the assumption that a constitutionally recognized

interest is adversely affected by the actions of federal

employees, the decision whether to recognize a Bivens

remedy may require two steps. In the first place, there is

the question whether any alternative, existing process for

protecting the interest amounts to a convincing reason for

the Judicial Branch to refrain from providing a new and

freestanding remedy in damages. Bush, supra, at 378.

Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

But even in the absence of an alternative, a Bivens remedy

is a subject of judgment: “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 counselling hesitation before author

izing a new kind of federal litigation.” Bush, supra, at

378.

A

In this factually plentiful case, assessing the signifi

cance of any alternative remedies at step one has to begin

by categorizing the difficulties Robbins experienced in

dealing with the Bureau. We think they can be separated

into four main groups: torts or tort-like injuries inflicted

on him, charges brought against him, unfavorable agency

actions, and offensive behavior by Bureau employees

falling outside those three categories.

Tortious harm inflicted on him includes Vessels’s unau

thorized survey of the terrain of the desired easement and

the illegal entry into the lodge, and in each instance,

Robbins had a civil remedy in damages for trespass.

Understandably, he brought no such action after learning

about the survey, which was doubtless annoying but not

physically damaging. For the incident at the lodge, he

chose not to pursue a tort remedy, though there is no

question that one was available to him if he could prove

his allegations. Cf. Correctional Services Corp., supra, at

72–73 (considering availability of state tort remedies in

refusing to recognize a Bivens remedy).

The charges brought against Robbins include a series of

administrative claims for trespass and other land-use

violations, a fine for the unauthorized road repair in 1997,

and the two criminal charges that same year. Robbins

had the opportunity to contest all of the administrative

charges; he did fight some (but not all) of the various land-

use and trespass citations, and he challenged the road

12 WILKIE v. ROBBINS

Opinion of the Court

repair fine as far as the IBLA, though he did not take

advantage of judicial review when he lost in that tribunal.5

He exercised his right to jury trial on the criminal com

plaints, and although the rapid acquittal tended to sup

port his charge of baseless action by the prosecution

(egged on by Bureau employees), the federal judge who

presided at the trial did not think the Government’s case

thin enough to justify awarding attorney’s fees, and Rob

bins’s appeal from that decision was late. See Robbins,

179 F. 3d, at 1269–1270. The trial judge’s denial of fees

may reflect facts that dissuaded Robbins from bringing a

state-law action for malicious prosecution, though it is also

possible that a remedy would have been unavailable

against federal officials, see Blake v. Rupe, 651 P. 2d 1096,

1107 (Wyo. 1982) (“Malicious prosecution is not an action

available against a law enforcement official”).6 For each

charge, in any event, Robbins had some procedure to

defend and make good on his position. He took advantage

of some opportunities, and let others pass; although he

had mixed success, he had the means to be heard.

The more conventional agency action included the 1995

cancellation of the right-of-way in Robbins’s favor (origi

——————

5 There was some uncertainty, if not inconsistency, about the willing

ness of the IBLA to entertain the sorts of claims Robbins advances

here. Compare In re Robbins, 146 I. B. L. A. 213, 219 (1998) (rejecting

a claim of “ ‘blackmail’ ” on the merits), with Robbins v. Bureau of Land

Management, 170 I. B. L. A. 219, 226 (2006) (holding that “the trespass

decision must be upheld regardless of BLM’s motive in issuing the

decision”). In any event, he could have advanced the claims in federal

court whether or not the IBLA was willing to listen to them. Cf. In re

Robbins, 167 I. B. L. A. 239, 241 (2005) (noting that Robbins “con

cede[d] that these assertions [of equal protection violations and har

assment] are properly cognizable by a court and he raise[d] them only

to preserve them as part of the record”).

6 Robbins brought a Fourth Amendment claim for malicious prosecu

tion in this litigation, but the District Court dismissed it, Robbins v.

Bureau of Land Management, 252 F. Supp. 2d 1286, 1295–1298 (Wyo.

2003), and Robbins has pursued it no further.

Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

nally given in return for the unrecorded easement for the

Government’s benefit); the 1995 decision to reduce the

SRUP from five years to one; the termination of the SRUP

in 1999; and the revocation of the grazing permit that

same year. Each time, the Bureau claimed that Robbins

was at fault, and for each claim, administrative review

was available, subject to ultimate judicial review under

the APA. Robbins took no appeal from the 1995 decisions,

stopped after losing an IBLA appeal of the SRUP denial,

and obtained a stay from the IBLA of the Bureau’s revoca

tion of the grazing permit.

Three events elude classification. The 1995 incident in

which Robbins’s horse was struck primarily involved

Robbins and his neighbor, not the Bureau, and the sheriff

never brought criminal charges. The videotaping of ranch

guests during the 2000 drive, while no doubt thoroughly

irritating and bad for business, may not have been unlaw

ful, depending, among other things, upon the location on

public or private land of the people photographed. Cf.

Restatement (Second) of Torts §652B (1976) (defining tort

of intrusion upon seclusion).7 Even if a tort was commit

ted, it is unclear whether Robbins, rather than his guests,

would be the proper plaintiff, or whether the tort should

be chargeable against the Government (as distinct from

employees) under the FTCA, cf. Carlson, 446 U. S., at 19–

20 (holding that FTCA and Bivens remedies were “paral

lel, complementary causes of action” and that the avail

ability of the former did not preempt the latter). The

significance of Wallace’s 2001 attempt to pressure Smith

into impounding Robbins’s cattle is likewise up in the air.

The legitimacy of any impoundment that might have

occurred would presumably have depended on where

particular cattle were on the patchwork of private and

public lands, and in any event, Smith never impounded

——————

7 We are aware of no Wyoming case considering this tort.

14 WILKIE v. ROBBINS

Opinion of the Court

any.

In sum, Robbins has an administrative, and ultimately

a judicial, process for vindicating virtually all of his com

plaints. He suffered no charges of wrongdoing on his own

part without an opportunity to defend himself (and, in the

case of the criminal charges, to recoup the consequent

expense, though a judge found his claim wanting). And

final agency action, as in canceling permits, for example,

was open to administrative and judicial review, as the

Court of Appeals realized, 433 F. 3d, at 772.

This state of the law gives Robbins no intuitively meri

torious case for recognizing a new constitutional cause of

action, but neither does it plainly answer no to the ques

tion whether he should have it. Like the combination of

public and private land ownership around the ranch, the

forums of defense and redress open to Robbins are a

patchwork, an assemblage of state and federal, adminis

trative and judicial benches applying regulations, statutes

and common law rules. It would be hard to infer that

Congress expected the Judiciary to stay its Bivens hand,

but equally hard to extract any clear lesson that Bivens

ought to spawn a new claim. Compare Bush, 462 U. S., at

388 (refusing to create a Bivens remedy when faced with

“an elaborate remedial system that has been constructed

step by step, with careful attention to conflicting policy

considerations”); and Schweiker, 487 U. S., at 426 (“Con

gress chose specific forms and levels of protection for the

rights of persons affected”), with Bivens, 403 U. S., at 397

(finding “no explicit congressional declaration that persons

injured [in this way] may not recover money damages from

the agents, but must instead be remitted to another rem

edy, equally effective in the view of Congress”).

B

This, then, is a case for Bivens step two, for weighing

reasons for and against the creation of a new cause of

Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

action, the way common law judges have always done. See

Bush, supra, at 378. Here, the competing arguments boil

down to one on a side: from Robbins, the inadequacy of

discrete, incident-by-incident remedies; and from the

Government and its employees, the difficulty of defining

limits to legitimate zeal on the public’s behalf in situations

where hard bargaining is to be expected in the back-and

forth between public and private interests that the Gov

ernment’s employees engage in every day.

1

As we said, when the incidents are examined one by one,

Robbins’s situation does not call for creating a constitu

tional cause of action for want of other means of vindica

tion, so he is unlike the plaintiffs in cases recognizing

freestanding claims: Davis had no other remedy, Bivens

himself was not thought to have an effective one, and in

Carlson the plaintiff had none against Government offi

cials. Davis, 442 U. S., at 245 (“For Davis, as for Bivens,

‘it is damages or nothing’ ” (quoting Bivens, supra, at 410

(Harlan, J., concurring in judgment))); Carlson, supra, at

23 (“[W]e cannot hold that Congress relegated respondent

exclusively to the FTCA remedy” against the Govern

ment).

But Robbins’s argument for a remedy that looks at the

course of dealing as a whole, not simply as so many indi

vidual incidents, has the force of the metaphor Robbins

invokes, “death by a thousand cuts.” Brief for Respondent

40. It is one thing to be threatened with the loss of graz

ing rights, or to be prosecuted, or to have one’s lodge bro

ken into, but something else to be subjected to this in

combination over a period of six years, by a series of public

officials bent on making life difficult. Agency appeals,

lawsuits, and criminal defense take money, and endless

battling depletes the spirit along with the purse. The

whole here is greater than the sum of its parts.

16 WILKIE v. ROBBINS

Opinion of the Court

2

On the other side of the ledger there is a difficulty in

defining a workable cause of action. Robbins describes the

wrong here as retaliation for standing on his right as a

property owner to keep the Government out (by refusing a

free replacement for the right-of-way it had lost), and the

mention of retaliation brings with it a tailwind of support

from our longstanding recognition that the Government

may not retaliate for exercising First Amendment speech

rights, see Rankin v. McPherson, 483 U. S. 378 (1987), or

certain others of constitutional rank, see, e.g., Lefkowitz v.

Turley, 414 U. S. 70 (1973) (Fifth Amendment privilege

against self-incrimination); United States v. Jackson, 390

U. S. 570 (1968) (Sixth Amendment right to trial by jury).

But on closer look, the claim against the Bureau’s em

ployees fails to fit the prior retaliation cases. Those cases

turn on an allegation of impermissible purpose and moti

vation; an employee who spoke out on matters of public

concern and then was fired, for example, would need to

“prove that the conduct at issue was constitutionally

protected, and that it was a substantial or motivating

factor in the termination.” Board of Comm’rs, Wabaunsee

Cty. v. Umbehr, 518 U. S. 668, 675 (1996). In its defense,

the Government may respond that the firing had nothing

to do with the protected speech, or that “it would have

taken the same action even in the absence of the protected

conduct.” Ibid. In short, the outcome turns on “what for”

questions: what was the Government’s purpose in firing

him and would he have been fired anyway? Questions like

these have definite answers, and we have established

methods for identifying the presence of an illicit reason (in

competition with others), not only in retaliation cases but

on claims of discrimination based on race or other charac

teristics. See McDonnell Douglas Corp. v. Green, 411 U. S.

792 (1973).

But a Bivens case by Robbins could not be resolved

Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

merely by answering a “what for” question or two. All

agree that the Bureau’s employees intended to convince

Robbins to grant an easement.8 But unlike punishing

someone for speaking out against the Government, trying

to induce someone to grant an easement for public use is a

perfectly legitimate purpose: as a landowner, the Govern

ment may have, and in this instance does have, a valid

interest in getting access to neighboring lands. The “what

for” question thus has a ready answer in terms of lawful

conduct.

Robbins’s challenge, therefore, is not to the object the

Government seeks to achieve, and for the most part his

argument is not that the means the Government used

were necessarily illegitimate; rather, he says that defen

dants simply demanded too much and went too far. But as

soon as Robbins’s claim is framed this way, the line-

drawing difficulties it creates are immediately apparent.

A “too much” kind of liability standard (if standard at all)

can never be as reliable a guide to conduct and to any

subsequent liability as a “what for” standard, and that

reason counts against recognizing freestanding liability in

a case like this.

The impossibility of fitting Robbins’s claim into the

simple “what for” framework is demonstrated, repeatedly,

by recalling the various actions he complains about. Most

of them, such as strictly enforcing rules against trespass

or conditions on grazing permits, are legitimate tactics

designed to improve the Government’s negotiating posi

tion. Just as a private landowner, when frustrated at a

neighbor’s stubbornness in refusing an easement, may

press charges of trespass every time a cow wanders across

——————

8 This is the “simple” question Robbins presents for review: “[C]an

government officials avoid the Fifth Amendment’s prohibition against

taking property without just compensation by using their regulatory

powers to harass, punish, and coerce a private citizen into giving the

Government his property without payment?” Brief for Respondent 21.

18 WILKIE v. ROBBINS

Opinion of the Court

the property line or call the authorities to report every

land-use violation, the Government too may stand firm on

its rights and use its power to protect public property

interests. Though Robbins protests that the Government

was trying to extract the easement for free instead of

negotiating, that line is slippery even in this case; the

Government was not offering to buy the easement, but it

did have valuable things to offer in exchange, like contin

ued permission for Robbins to use Government land on

favorable terms (at least to the degree that the terms of a

permit were subject to discretion).9

It is true that the Government is no ordinary land

owner, with its immense economic power, its role as trus

tee for the public, its right to cater to particular segments

of the public (like the recreational users who would take

advantage of the right-of-way to get to remote tracts), and

its wide discretion to bring enforcement actions. But in

many ways, the Government deals with its neighbors as

one owner among the rest (albeit a powerful one). Each

may seek benefits from the others, and each may refuse to

deal with the others by insisting on valuable consideration

for anything in return. And as a potential contracting

party, each neighbor is entitled to drive a hard bargain, as

even Robbins acknowledges, see Tr. of Oral Arg. 31–32.

That, after all, is what Robbins did by flatly refusing to

regrant the easement without further recompense, and

that is what the defendant employees did on behalf of the

Government. So long as they had authority to withhold or

withdraw permission to use Government land and to

——————

9 In light of JUSTICE GINSBURG’s emphasis on the extent and duration

of the harm suffered by Robbins, we do not read her opinion to suggest

that any single adverse action taken by the Government in response to

a valid exercise of property rights would give rise to a retaliation claim.

It thus appears that even if a “what for” question could be imported

into this case, Robbins could not obtain relief without also satisfying an

unspecified, and unworkable, “too much” standard.

Cite as: 551 U. S. ____ (2007) 19

Opinion of the Court

enforce the trespass and land-use rules (as the IBLA

confirmed that they did have at least most of the time),

they were within their rights to make it plain that Rob

bins’s willingness to give the easement would determine

how complaisant they would be about his trespasses on

public land, when they had discretion to enforce the law to

the letter.10

——————

10 JUSTICE GINSBURG says we mistakenly fail to see that Robbins’s

retaliation claim presents only a “what for” question: did defendants

take the various actions against Robbins in retaliation for refusing to

grant the desired right of way gratis (or simply out of malice prompted

by Robbins’s refusal and their own embarrassment after forgetting to

record the Nelson grant)? But seeing the case as raising only a tradi

tional “what for” question gives short shrift to the Government’s right

to bargain hard in a continuing contest.

In the standard retaliation case recognized in our precedent, the

plaintiff has performed some discrete act in the past, typically saying

something that irritates the defendant official; the question is whether

the official’s later action against the plaintiff was taken for a legitimate

purpose (firing to rid the workforce of a substandard performer, for

example) or for the purpose of punishing for the exercise of a constitu

tional right (that is, retaliation, probably motivated by spite). The

plaintiff’s action is over and done with, and the only question is the

defendant’s purpose, which may be maliciously motivated.

In this case, however, the past act or acts (refusing the right-of-way

without compensation) are simply particular steps in an ongoing

refusal to grant requests for a right-of-way. The purpose of the continu

ing requests is lawful (the Government still could use the right-of-way)

and there are actions the Government may lawfully take to induce or

coerce Robbins to end his refusal (presumably like canceling the non

permanent reciprocal right-of-way originally given to Nelson). The

action claimed to be retaliatory may gratify malice in the heart of the

official who takes it, but the official act remains an instance of hard

bargaining intended to induce the plaintiff to come to legitimate terms.

We do not understand Robbins to contend that malice alone, as distin

guished from malice combined with the desire to acquire an easement,

caused defendants to act the way they did. See Brief for Respondent 21

(accusing defendants of “using their regulatory powers to harass,

punish, and coerce a private citizen into giving the Government his

property without payment”); but cf. post, at 12, n. 3 (GINSBURG, J.,

concurring in part and dissenting in part) (“ ‘Their cause, if they had

20 WILKIE v. ROBBINS

Opinion of the Court

Robbins does make a few allegations, like the unauthor

ized survey and the unlawful entry into the lodge, that

charge defendants with illegal action plainly going beyond

hard bargaining. If those were the only coercive acts

charged, Robbins could avoid the “too much” problem by

fairly describing the Government behavior alleged as

illegality in attempting to obtain a property interest for

——————

one, is nothing to them now; They hate for hate’s sake’ ” (quoting There

Will Be No Peace, reprinted in W. H. Auden: Collected Poems 615

(2007) (E. Mendelson ed.))). Thus, we are not dealing with one discrete

act by a plaintiff and one discrete (possibly retaliatory) act by a defen

dant, the purpose of which is in question. Instead we are confronting a

continuing process in which each side has a legitimate purpose in

taking action contrary to the other’s interest.

“Retaliation” cannot be classed as a basis of liability here, then, ex

cept on one or the other of two assumptions. The first is that the

antagonistic acts by the officials extend beyond the scope of acceptable

means for accomplishing the legitimate purpose; the acts go beyond

hard bargaining on behalf of the Government (whatever spite may lurk

in the defendant’s heart). They are “too much.” The second assumption

is that the presence of malice or spite in an official’s heart renders any

action unconstitutionally retaliatory, even if it would otherwise have

been done in the name of legitimate hard bargaining. The motive-is-all

test is not the law of our retaliation precedent. If a spiteful heart

rendered any official efforts actionable as unconstitutional retaliation,

our retaliation discharge cases would have asked not only whether the

plaintiff was fired for cause (and would have been fired for cause

anyway), but whether the official who discharged the plaintiff tainted

any legitimate purpose with spitefulness in firing this particular,

outspoken critic. But we have taken no such position; to the contrary,

we have held that proof that the action was independently justified on

grounds other than the improper one defeats the claim. See Mt.

Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). Any other

approach would have frustrated an employer’s legitimate interest in

securing a competent workforce (comparable to the Government’s

interest as a landowner here), and would have introduced the complica

tion of proving motive even in cases in which the action taken was

plainly legitimate.

Since JUSTICE GINSBURG disclaims the second alternative, post at 13,

n. 6, the acts of spite and ill-will that she emphasizes will necessarily

count in a “too much” calculation.

Cite as: 551 U. S. ____ (2007) 21

Opinion of the Court

nothing, but that is not a fair summary of the body of

allegations before us, according to which defendants’

improper exercise of the Government’s “regulatory pow

ers” is essential to the claim. Brief for Respondent 21. (Of

course, even in that simpler case, the tort or torts by Gov

ernment employees would be so clearly actionable under

the general law that it would furnish only the weakest

argument for recognizing a generally available constitu

tional tort.) Rather, the bulk of Robbins’s charges go to

actions that, on their own, fall within the Government’s

enforcement power.

It would not answer the concerns just expressed to

change conceptual gears and consider the more abstract

concept of liability for retaliatory or undue pressure on a

property owner for standing firm on property rights; look

ing at the claim that way would not eliminate the problem

of degree, and it would raise a further reason to balk at

recognizing a Bivens claim. For at this high level of gen

erality, a Bivens action to redress retaliation against those

who resist Government impositions on their property

rights would invite claims in every sphere of legitimate

governmental action affecting property interests, from

negotiating tax claim settlements to enforcing Occupa

tional Safety and Health Administration regulations.

Exercising any governmental authority affecting the value

or enjoyment of property interests would fall within the

Bivens regime, and across this enormous swath of poten

tial litigation would hover the difficulty of devising a “too

much” standard that could guide an employee’s conduct

and a judicial factfinder’s conclusion.11

——————

11 JUSTICE GINSBURG points out that apprehension of many lawsuits is

not a good reason to refrain from creating a Bivens action. Post, at 10–

11, 15. But there is a world of difference between a popular Bivens

remedy for a well-defined violation, on the one hand, and (on the other)

litigation invited because the elements of a claim are so unclear that no

one can tell in advance what claim might qualify or what might not.

22 WILKIE v. ROBBINS

Opinion of the Court

The point here is not to deny that Government employ

ees sometimes overreach, for of course they do, and they

may have done so here if all the allegations are true. The

point is the reasonable fear that a general Bivens cure

would be worse than the disease.

C

In sum, defendants were acting in the name of the

Bureau, which had the authority to grant (and had given)

Robbins some use of public lands under its control and

wanted a right-of-way in return. Defendants bargained

hard by capitalizing on their discretionary authority and

Robbins’s violations of various permit terms, though

truculence was apparent on both sides. One of the defen

dants, at least, clearly crossed the line into impermissible

conduct in breaking into Robbins’s lodge, although it is not

clear from the record that any other action by defendants

was more serious than garden-variety trespass, and the

Government has successfully defended every decision to

eliminate Robbins’s permission to use public lands in the

ways he had previously enjoyed. Robbins had ready at

hand a wide variety of administrative and judicial reme

dies to redress his injuries. The proposal, nonetheless, to

create a new Bivens remedy to redress such injuries collec

tively on a theory of retaliation for exercising his property

right to exclude, or on a general theory of unjustifiably

burdening his rights as a property owner, raises a serious

difficulty of devising a workable cause of action. A judicial

standard to identify illegitimate pressure going beyond

legitimately hard bargaining would be endlessly knotty to

work out, and a general provision for tortlike liability

when Government employees are unduly zealous in press

ing a governmental interest affecting property would

——————

We ground our judgment on the elusiveness of a limiting principle for

Robbins’s claim, not on the potential popularity of a claim that could be

well defined.

Cite as: 551 U. S. ____ (2007) 23

Opinion of the Court

invite an onslaught of Bivens actions.

We think accordingly that any damages remedy for

actions by Government employees who push too hard for

the Government’s benefit may come better, if at all,

through legislation. “Congress is in a far better position

than a court to evaluate the impact of a new species of

litigation” against those who act on the public’s behalf.

Bush, 462 U. S., at 389. And Congress can tailor any

remedy to the problem perceived, thus lessening the risk

of raising a tide of suits threatening legitimate initiative

on the part of the Government’s employees. Ibid. (“[Con

gress] may inform itself through factfinding procedures

such as hearings that are not available to the courts”); cf.

Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982) (recogniz

ing “the danger that fear of being sued will dampen the

ardor of all but the most resolute, or the most irresponsi

ble public officials, in the unflinching discharge of their

duties” (internal quotation marks and brackets omitted)).

III

Robbins’s other claim is under RICO, which gives civil

remedies to “[a]ny person injured in his business or prop

erty by reason of a violation of [18 U. S. C. §1962].” 18

U. S. C. §1964(c). Section 1962(c) makes it a crime for

“any person employed by or associated with any enterprise

engaged in, or the activities of which affect, interstate or

foreign commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity.” RICO defines

“racketeering activity” to include “any act which is indict

able under” the Hobbs Act as well as “any act or threat

involving . . . extortion . . . , which is chargeable under

State law and punishable by imprisonment for more than

one year.” §§1961(1)(A)–(B) (2000 ed., Supp. IV). The

Hobbs Act, finally, criminalizes interference with inter

state commerce by extortion, along with attempts or con

24 WILKIE v. ROBBINS

Opinion of the Court

spiracies, §1951(a), extortion being defined as “the obtain

ing of property from another, with his consent, induced by

wrongful use of actual or threatened force, violence, or

fear, or under color of official right,” §1951(b)(2).

Robbins charges defendants with violating the Hobbs

Act by wrongfully trying to get the easement under color

of official right, to which defendants reply with a call to

dismiss the RICO claim for two independent reasons: the

Hobbs Act does not apply when the National Government

is the intended beneficiary of the allegedly extortionate

acts; and a valid claim of entitlement to the disputed

property is a complete defense against extortion. Because

we agree with the first contention, we do not reach the

second.

The Hobbs Act does not speak explicitly to efforts to

obtain property for the Government rather than a private

party, and that leaves defendants’ contention to turn on

the common law conception of “extortion,” which we pre

sume Congress meant to incorporate when it passed the

Hobbs Act in 1946. See Scheidler v. National Organiza

tion for Women, Inc., 537 U. S. 393, 402 (2003) (construing

the term “extortion” in the Hobbs Act by reference to its

common law meaning); Evans v. United States, 504 U. S.

255, 259 (1992) (same); see also Morissette v. United

States, 342 U. S. 246, 263 (1952) (“[W]here Congress bor

rows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it pre

sumably knows and adopts the cluster of ideas that were

attached to each borrowed word in the body of learning

from which it was taken”).

“At common law, extortion was a property offense com

mitted by a public official who took any money or thing of

value that was not due to him under the pretense that he

was entitled to such property by virtue of his office.”

Scheidler, supra, at 402 (quoting 4 W. Blackstone, Com

mentaries on the Laws of England 141 (1769), and citing 3

Cite as: 551 U. S. ____ (2007) 25

Opinion of the Court

R. Anderson, Wharton’s Criminal Law and Procedure

§1393, pp. 790–791 (1957); internal quotation marks

omitted). In short, “[e]xtortion by the public official was

the rough equivalent of what we would now describe as

‘taking a bribe.’ ” Evans, supra, at 260. Thus, while Rob

bins is certainly correct that public officials were not

immune from charges of extortion at common law, see

Brief for Respondent 43, the crime of extortion focused on

the harm of public corruption, by the sale of public favors

for private gain, not on the harm caused by overzealous

efforts to obtain property on behalf of the Government.12

The importance of the line between public and private

beneficiaries for common law and Hobbs Act extortion is

confirmed by our own case law, which is completely barren

of an example of extortion under color of official right

undertaken for the sole benefit of the Government. See,

e.g., McCormick v. United States, 500 U. S. 257, 273 (1991)

(discussing circumstances in which public official’s receipt

of campaign contributions constitutes extortion under

color of official right); Evans, supra, at 257 (Hobbs Act

prosecution for extortion under color of official right,

where public official accepted cash in exchange for favor

able votes on a rezoning application); United States v.

Gillock, 445 U. S. 360, 362 (1980) (Hobbs Act prosecution

for extortion under color of official right, where state

senator accepted money in exchange for blocking a defen

——————

12 Although the legislative history of the Hobbs Act is generally

“sparse and unilluminating with respect to the offense of extortion,”

Evans, 504 U. S., at 264, we know that Congress patterned the Act

after two sources of law: “the Penal Code of New York and the Field

Code, a 19th-century model penal code,” Scheidler, 537 U. S., at 403. In

borrowing from these sources, the Hobbs Act expanded the scope of

common law extortion to include private perpetrators while retaining

the core idea of extortion as a species of corruption, akin to bribery.

But Robbins provides no basis for believing that Congress thought of

broadening the definition of extortion under color of official right

beyond its common law meaning.

26 WILKIE v. ROBBINS

Opinion of the Court

dant’s extradition and agreeing to introduce legislation);

cf. United States v. Deaver, 14 F. 595, 597 (WDNC 1882)

(under the “technical meaning [of extortion] in the com

mon law, . . . [t]he officer must unlawfully and corruptly

receive such money or article of value for his own benefit

or advantage”). More tellingly even, Robbins has cited no

decision by any court, much less this one, from the entire

60-year period of the Hobbs Act that found extortion in

efforts of Government employees to get property for the

exclusive benefit of the Government.

Of course, there is usually a case somewhere that pro

vides comfort for just about any claim. Robbins musters

two for his understanding of extortion under color of offi

cial right, neither of which, however, addressed the benefi

ciary question with any care: People v. Whaley, 6 Cow. 661

(N. Y. 1827), and Willett v. Devoy, 170 App. Div. 203, 155

N. Y. S. 920 (1915). Whaley was about a charge of extor

tion against a justice of the peace who wrongfully ordered

a litigant to pay compensation to the other party as well

as a small administrative fee to the court. Because the

case involved illegally obtaining property for the benefit of

a private third party, it does not stand for the proposition

that an act for the benefit of the Government alone can be

extortion. The second case, Willett, again from New York,

construed a provision of the State’s Public Officers Law.

That statute addressed the problem of overcharging by

public officers, see Birdseye’s Consol. Laws of N. Y. Ann.

§67, p. 4640 (1909), and the court’s opinion on it said that

common law extortion did not draw any distinction “on the

ground that the official keeps the fee himself,” 170 App.

Div., at 204, 155 N. Y. S., at 921. But a single, two-page

opinion from a state intermediate appellate court issued in

1915 is not much indication that the Hobbs Act was

adopted in 1946 subject to the understanding that com

mon law extortion was spacious enough to cover the case

Robbins states. There is a reason he is plumbing obscu

Cite as: 551 U. S. ____ (2007) 27

Opinion of the Court

rity.

Robbins points to what we said in United States v.

Green, 350 U. S. 415, 420 (1956), that “extortion as defined

in the [Hobbs Act] in no way depends upon having a direct

benefit conferred on the person who obtains the property.”

He infers that Congress could not have meant to prohibit

extortionate acts in the interest of private entities like

unions, but ignore them when the intended beneficiary is

the Government. See Brief for Respondent 47–48. But

Congress could very well have meant just that; drawing a

line between private and public beneficiaries prevents

suits (not just recoveries) against public officers whose

jobs are to obtain property owed to the Government. So,

without some other indication from Congress, it is not

reasonable to assume that the Hobbs Act (let alone RICO)

was intended to expose all federal employees, whether in

the Bureau of Land Management, the Internal Revenue

Service, the Office of the Comptroller of the Currency

(OCC), or any other agency, to extortion charges whenever

they stretch in trying to enforce Government property

claims. See Sinclair v. Hawke, 314 F. 3d 934, 944 (CA8

2003) (OCC employees “do not become racketeers by act

ing like aggressive regulators”). As we just suggested,

Robbins does not face up to the real problem when he says

that requiring proof of a wrongful intent to extort would

shield well-intentioned Government employees from liabil

ity. It is not just final judgments, but the fear of criminal

charges or civil claims for treble damages that could well

take the starch out of regulators who are supposed to

bargain and press demands vigorously on behalf of the

Government and the public. This is the reason we would

want to see some text in the Hobbs Act before we could say

that Congress meant to go beyond the common law preoc

cupation with official corruption, to embrace the expansive

notion of extortion Robbins urges on us.

He falls back to the argument that defendants violated

28 WILKIE v. ROBBINS

Opinion of the Court

Wyoming’s blackmail statute, see Wyo. Stat. Ann. §6–2–402

(1977–2005),13 which he says is a separate predicate offense

for purposes of RICO liability. But even assuming that

defendants’ conduct would be “chargeable under State law

and punishable by imprisonment for more than one year,”

18 U. S. C. §1961(1)(A), it cannot qualify as a predicate

offense for a RICO suit unless it is “capable of being generi

cally classified as extortionate,” Scheidler, 537 U. S., at 409,

410; accord, United States v. Nardello, 393 U. S. 286, 296

(1969). For the reasons just given, the conduct alleged does

not fit the traditional definition of extortion, so Robbins’s

RICO claim does not survive on a theory of state-law deri

vation.

* * *

Because neither Bivens nor RICO gives Robbins a cause

of action, there is no reason to enquire further into the

merits of his claim or the asserted defense of qualified

immunity. The judgment of the Court of Appeals for the

Tenth Circuit is reversed, and the case is remanded for

further proceedings consistent with this opinion.

It is so ordered.

——————

13 Section 6–2–402 provides:

“(a) A person commits blackmail if, with the intent to obtain property of

another or to compel action or inaction by any person against his will,

the person:

. . . . .

“(ii) Accuses or threatens to accuse a person of a crime or immoral

conduct which would tend to degrade or disgrace the person or subject

him to the ridicule or contempt of society.”

Cite as: 551 U. S. ____ (2007) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–219

_________________

CHARLES WILKIE, ET AL., PETITIONERS v.

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 25, 2007]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring.

The Court correctly concludes that Bivens v. Six Un

known Fed. Narcotics Agents, 403 U. S. 388 (1971), does

not supply a cause of action in this case. I therefore join

its opinion. I write separately because I would not extend

Bivens even if its reasoning logically applied to this case.

“Bivens is a relic of the heady days in which this Court

assumed common-law powers to create causes of action.”

Correctional Services Corp. v. Malesko, 534 U. S. 61, 75

(2001) (SCALIA, J., joined by THOMAS, J., concurring).

Accordingly, in my view, Bivens and its progeny should be

limited “to the precise circumstances that they involved.”

Malesko, supra, at 75.

Cite as: 551 U. S. ____ (2007) 1

Opinion of GINSBURG, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–219

_________________

CHARLES WILKIE, ET AL., PETITIONERS v.

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 25, 2007]

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins,

concurring in part and dissenting in part.

Bureau of Land Management (BLM) officials in Wyo

ming made a careless error. They failed to record an

easement obtained for the United States along a stretch of

land on the privately owned High Island Ranch. Plaintiff-

respondent Frank Robbins purchased the ranch knowing

nothing about the easement granted by the prior owner.

Under Wyoming law, Robbins took title to the land free of

the easement. BLM officials, realizing their mistake,

demanded from Robbins an easement—for which they did

not propose to pay—to replace the one they carelessly lost.

Their demand, one of them told Robbins, was nonnegotia

ble. Robbins was directed to provide the easement, or else.

When he declined to follow that instruction, the BLM

officials mounted a seven-year campaign of relentless

harassment and intimidation to force Robbins to give in.

They refused to maintain the road providing access to the

ranch, trespassed on Robbins’ property, brought un

founded criminal charges against him, canceled his special

recreational use permit and grazing privileges, interfered

with his business operations, and invaded the privacy of

his ranch guests on cattle drives.

Robbins commenced this lawsuit to end the incessant

harassment and intimidation he endured. He asserted

2 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

that the Fifth Amendment’s Takings Clause forbids gov

ernment action calculated to acquire private property

coercively and cost-free. He further urged that federal

officials dishonor their constitutional obligation when they

act in retaliation for the property owner’s resistance to an

uncompensated taking. In support of his claim for relief,

Robbins relied on Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U. S. 388 (1971). The Court recognizes that

the “remedy” to which the Government would confine

Robbins—a discrete challenge to each offending action as

it occurs—is inadequate. A remedy so limited would

expose Robbins’ business to “death by a thousand cuts.”

See ante, at 15 (quoting Brief for Respondent 40). Never

theless, the Court rejects his claim, for it fears the conse

quences. Allowing Robbins to pursue this suit, the Court

maintains, would open the floodgates to a host of unwor

thy suits “in every sphere of legitimate governmental

action affecting property interests.” Ante, at 21.

But this is no ordinary case of “hard bargaining,” ibid.,

or bureaucratic arrogance. Robbins charged “vindictive

action” to extract property from him without paying a fair

price. He complains of a course of conduct animated by

an illegitimate desire to “get him.” That factor is suffi

cient to minimize the Court’s concern. Cf. Village of Wil

lowbrook v. Olech, 528 U. S. 562, 565–566 (2000) (BREYER,

J., concurring in result) (citations and internal quotation

marks omitted). Taking Robbins’ allegations as true, as

the Court must at this stage of the litigation, the case

presents this question: Does the Fifth Amendment provide

an effective check on federal officers who abuse their

regulatory powers by harassing and punishing property

owners who refuse to surrender their property to the

United States without fair compensation? The answer

should be a resounding “Yes.”

Cite as: 551 U. S. ____ (2007) 3

Opinion of GINSBURG, J.

I

The Court acknowledges that, at this stage of proceed

ings, the facts must be viewed in the light most favorable

to Robbins. Ante, at 3, n. 2. The full force of Robbins’

complaint, however, is not quite captured in the Court’s

restrained account of his allegations. A more complete

rendition of the saga that sparked this suit is in order.

Upon discovering that BLM had mistakenly allowed its

easement across High Island Ranch to expire, BLM area

manager Joseph Vessels contacted Robbins at his home in

Alabama to demand that Robbins grant a new easement.

Vessels was on shaky legal ground. A federal regulation

authorized BLM to require a landowner seeking a right-of

way across Government land to grant reciprocal access to

his own land. See 43 CFR §2801.1–2 (2004). But Robbins

never applied for a right-of-way across federal land (the

prior owner did), and the Government cites no law or

regulation commanding Robbins to grant a new easement

to make up for BLM’s neglect in losing the first one.

Robbins was unwilling to capitulate to unilateral de

mands, but told Vessels he would negotiate with BLM

when he moved to Wyoming. Vessels would have none of

it: “This is what you’re going to do,” he told Robbins.

Plaintiff-Appellee’s Supp. App. in No. 04–8016 (CA10),

p. 325 (hereinafter CA10 App.).

Edward Parodi, a range technician in the BLM office,

testified that from the very beginning, agency employees

referred to Robbins as “the rich SOB from Alabama [who]

got [the Ranch].” App. 121. Trouble started almost im

mediately. Shortly after their first conversation, Vessels

wrote Robbins to ask permission to survey his land, pre

sumably to establish the contours of the easement. Rob

bins refused, believing there was no need for a survey

until an agreement had been reached. Vessels conducted

the survey anyway, and chuckled when he told Robbins of

the trespass. CA10 App. 325–327. At their first face-to

4 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

face meeting in Wyoming, Robbins bridled at the one-sided

deal BLM proposed. But Vessels was adamant: “The

Federal Government does not negotiate,” he declared. Id.,

at 326. Over time, Parodi reported, Vessels’ attitude

towards Robbins changed from “professional” to “hostile,”

and “just got worse and worse and worse.” App. 124.

Other BLM employees shared Vessels’ animosity. In

one notable instance, Robbins alleged, BLM agent Gene

Leone provoked a violent encounter between Robbins and

a neighboring landowner, LaVonne Pennoyer. Leone

knew Robbins was looking for a water source for his cattle,

and he called Pennoyer to warn her to be on the lookout.

Robbins, unfamiliar with the territory and possibly misled

by BLM, drove cattle onto Pennoyer’s land to water at a

creek. Pennoyer showed up in her truck, yelling, blowing

the horn, and bumping cows. Realizing that he was on

Pennoyer’s land, Robbins started to push his cows out of

her way, when Pennoyer revved her engine and drove her

truck straight into the horse Robbins was riding. Id., at

49; CA10 App. 331–332, 676–681; Pl. Exh. 2, Record 164–

166; Pl. Exh. 35a, id., at 102–108. According to Parodi,

after the dustup, Leone boasted, “I think I finally got a

way to get [Robbins’] permits and get him out of business.”

App. 125, 126. Leone pressed the local sheriff to charge

Robbins for his conduct in the encounter with Pennoyer,

but the sheriff declined to do so. CA10 App. 331–332.

Leone cited the Pennoyer incident as one ground, among

others, to suspend Robbins’ special recreation use permit.

That permit allowed Robbins to lead ranch guests on

cattle drives, which were his primary source of revenue

from the property. App. 49. BLM aimed at the cattle

drives in other ways too. Undermining the authenticity of

the experience Robbins offered his guests, BLM employees

followed along in trucks, videotaping participants. The

Government suggests that this surveillance was a legiti

mate way to document instances when Robbins crossed

Cite as: 551 U. S. ____ (2007) 5

Opinion of GINSBURG, J.

onto federal land without permission. The suggestion,

however, hardly explains why, on one occasion, BLM

employees videotaped several female guests who were

seeking privacy so they could relieve themselves. CA10

App. 506–507.

As part of the campaign against Robbins, Parodi was

instructed to “look closer” for trespass violations, to “inves

tigate harder” and “if [he] could find anything, to find it.”

App. 129, 130. Parodi testified, in relation to the instruc

tions he was given, that he did not have problems with

Robbins: He never found a trespass violation he regarded

as willful, and Robbins promptly addressed every concern

Parodi raised. Id., at 124, 127.

The Court maintains that the BLM employees “were

within their rights to make it plain that Robbins’s willing

ness to give the easement would determine how complai

sant they would be” about his infractions, but the record

leaves doubt. Ante, at 19. Parodi testified that he was

asked to “do things [he] wasn’t authorized [to do],” App.

124, and that Leone’s projections about what BLM officers

would do to Robbins exceeded “the appropriate mission of

the BLM,” id., at 128. About Vessels, Parodi said, “[i]t has

been my experience that people given authority and not

being held in check and not having solid convictions will

run amuck and that [is] what I saw happening.” Id., at

125. Eventually, Parodi was moved to warn Robbins that,

if he continued to defy BLM officials, “there would be war,

a long war and [BLM] would outlast him and outspend

him.” Id., at 132. Parodi found BLM’s treatment of Rob

bins so disturbing that it became “the volcanic point” in

his decision to retire. Id., at 133. “It’s one thing to go

after somebody that is willfully busting the regulations

and going out of their way to get something from the

government,” Parodi said, but he saw Robbins only “as a

man standing up for his property rights.” Pl. Exh. 35C,

Record 41.

6 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

The story thus far told is merely illustrative of Robbins’

allegations. The record is replete with accounts of tres

passes to Robbins’ property, vindictive cancellations of his

rights to access federal land, and unjustified or selective

enforcement actions. Indeed, BLM was not content with

the arrows in its own quiver. Robbins charged that BLM

officials sought to enlist other federal agencies in their

efforts to harass him. In one troubling incident, a BLM

employee, petitioner David Wallace, pressured a Bureau of

Indian Affairs (BIA) manager to impound Robbins’ cattle,

asserting that he was “a bad character” and that “some

thing need[ed] to be done with [him].” CA10 App. 359.

The manager rejected the request, observing that the BIA

had no problems with Robbins. Ibid.

Even more disconcerting, there was sufficient evidence,

the District Court recognized, to support Robbins’ allega

tion that BLM employees filed false criminal charges

against him, claiming that he forcibly interfered with a

federal officer. Federal prosecutors took up the cause, but

Robbins was acquitted by a jury in less than 30 minutes.1

A news account reported that the jurors “were appalled at

the actions of the government,” one of them commenting

that “Robbins could not have been railroaded any worse

. . . if he worked for Union Pacific.” Id., at 852.

BLM’s seven-year campaign of harassment had a devas

——————

1 Despite the rapid acquittal, the trial court denied Robbins’ request

for counsel fees, finding that he failed to prove “the position of the

United States was vexatious, frivolous, or in bad faith.” Departments

of Commerce, Justice, and State, the Judiciary, and Related Agencies

Appropriations Act 1998, §617, 111 Stat. 2519, note following 18

U. S. C. §3006A. The Court counts this a significant point favoring

petitioners. See ante, at 12 (“[T]he federal judge who presided at the

trial did not think the Government’s case thin enough to justify award

ing attorney’s fees.”). But, as Robbins notes, the trial court passed only

on the prosecutor’s litigation position, not on whether the allegations of

the BLM employees, which prompted the prosecution, were made in

bad faith. Brief for Respondent 7, n. 5.

Cite as: 551 U. S. ____ (2007) 7

Opinion of GINSBURG, J.

tating impact on Robbins’ business. Robbins testified that

in a typical summer, the High Island Ranch would ac

commodate 120 guests spread across six cattle drives. As

a result of BLM’s harassment, in 2003, Robbins was able

to organize only one cattle drive with 21 guests. Id., at

507–508. In addition, Robbins reports that he spent

“hundreds of thousands of dollars in costs and attorney’s

fees” seeking to fend off BLM. Brief for Respondent 9,

n. 6.

To put an end to the incessant harassment, Robbins

filed this suit, alleging that the Fifth Amendment forbids

government action calculated to acquire private property

coercively and cost-free, and measures taken in retaliation

for the owner’s resistance to an uncompensated taking.

Even assuming Robbins is correct about the Fifth

Amendment, he may not proceed unless he has a right to

sue. To ground his claim for relief, Robbins relies on

Bivens, 403 U. S. 388.

II

“The very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the

laws, whenever he receives an injury.” Marbury v. Madi

son, 1 Cranch 137, 163 (1803). In Bivens, the Court drew

upon that venerable principle in holding that a victim of a

Fourth Amendment violation by federal officers has a

claim for relief in the form of money damages. “Histori

cally,” the Court observed, “damages have been regarded

as the ordinary remedy for an invasion of personal inter

ests in liberty.” 403 U. S., at 395.

The Court’s decisions recognize that the reasoning

underlying Bivens is not confined to Fourth Amendment

claims. In Davis v. Passman, 442 U. S. 228, 248–249

(1979), the Court allowed a suit seeking money damages

for employment discrimination in violation of the equal

protection component of the Fifth Amendment. “[U]nless

8 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

[constitutional] rights are to become merely precatory,”

the Court stated, “litigants who allege that their own

constitutional rights have been violated, and who at the

same time have no effective means other than the judici

ary to enforce these rights, must be able to invoke the

existing jurisdiction of the courts for . . . protection.” Id.,

at 242. Soon after Passman, the Court applied Bivens

again, recognizing a federal right of action to gain dam

ages for an Eighth Amendment violation. Carlson v.

Green, 446 U. S. 14 (1980).

Carlson announced two exceptions to Bivens’ rule. “The

first [applies] when defendants demonstrate special fac

tors counselling hesitation in the absence of affirmative

action by Congress.” 446 U. S., at 18 (quoting Bivens, 403

U. S., at 396). “The second [applies] 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.” Carlson, 446 U. S., at 18–19 (emphasis in

original). Prior decisions have invoked these exceptions to

bar Bivens suits against federal officers in only three

contexts.2

In Bush v. Lucas, 462 U. S. 367, 368 (1983), a federal

employee sought recovery for First Amendment violations

alleged to have occurred in his workplace. As a civil ser

vant, the plaintiff had recourse to “an elaborate, compre

hensive scheme” administered by the Civil Service Com

mission, in which constitutional challenges were “fully

cognizable.” Id., at 385, 386. The Court declined to recog

nize a judicial remedy, lest it interfere with Congress’

carefully calibrated system. For similar reasons, in

——————

2 The Court cites Correctional Services Corp. v. Malesko, 534 U. S. 61

(2001) (suit against private prison), and FDIC v. Meyer, 510 U. S. 471

(1994) (suit against federal agency), among cases in which we have

declined to extend Bivens. Ante, at 10. Neither was a suit against a

federal officer.

Cite as: 551 U. S. ____ (2007) 9

Opinion of GINSBURG, J.

Schweiker v. Chilicky, 487 U. S. 412, 414, 424–429 (1988),

the Court held that the Social Security Act’s scheme of

administrative and judicial remedies left no void to be

filled by a Bivens action. Likewise, on two occasions, the

Court concluded that “the unique disciplinary structure of

the Military Establishment” precluded a Bivens action for

harm to military personnel through activity incident to

service. United States v. Stanley, 483 U. S. 669, 679

(1987) (internal quotation marks omitted); Chappell v.

Wallace, 462 U. S. 296, 304 (1983).

Some Members of this Court consider Bivens a dated

precedent. See ante, at 1 (THOMAS, J., concurring)

(“Bivens is a relic of the heady days in which this Court

assumed common-law powers to create causes of action.”

(quoting Correctional Services Corp. v. Malesko, 534 U. S.

61, 75 (2001) (SCALIA, J., concurring))). But the Court has

so far adhered to Bivens’ core holding: Absent congres

sional command or special factors counseling hesitation,

“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.” Carlson, 446 U. S., at 18.

III

A

The Court does not hold that Robbins’ Bivens suit is

precluded by a carefully calibrated administrative regime

like those at issue in Bush, Chilicky, Chappell, or Stanley,

nor could it. As the Court recognizes, Robbins has no

alternative remedy for the relentless torment he alleges.

True, Robbins may have had discrete remedies for particu

lar instances of harassment. But, in these circumstances,

piecemeal litigation, the Court acknowledges, cannot

forestall “death by a thousand cuts.” Ante, at 15 (quoting

Brief for Respondent 40). For plaintiffs in Robbins’ shoes,

“it is damages or nothing.” Bivens, 403 U. S., at 410

10 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

(Harlan, J., concurring in judgment).

Despite the Court’s awareness that Robbins lacks an

effective alternative remedy, it nevertheless bars his suit.

The Court finds, on the facts of this case, a special factor

counseling hesitation quite unlike any we have recognized

before. Allowing Robbins to seek damages for years of

harassment, the Court says, “would invite an onslaught of

Bivens actions,” ante, at 23, with plaintiffs pressing claims

“in every sphere of legitimate governmental action affect

ing property interests,” ante, at 21.

The “floodgates” argument the Court today embraces

has been rehearsed and rejected before. In Passman, the

Court of Appeals emphasized, as a reason counseling

denial of a Bivens remedy, the danger of “deluging federal

courts with [Fifth Amendment based employment dis

crimination] claims.” 442 U. S., at 248 (internal quotation

marks and citation omitted). This Court disagreed, turn

ing to Justice Harlan’s concurring opinion in Bivens to

explain why.

The only serious policy argument against recognizing a

right of action for Bivens, Justice Harlan observed, was

the risk of inundating courts with Fourth Amendment

claims. He found the argument unsatisfactory:

“[T]he question appears to be how Fourth Amendment

interests rank on a scale of social values compared

with, for example, the interests of stockholders de

frauded by misleading proxies. Judicial resources, I

am well aware, are increasingly scarce these days.

Nonetheless, when we automatically close the court

house door solely on this basis, we implicitly express a

value judgment on the comparative importance of

classes of legally protected interests.” 403 U. S., at

410–411 (citation omitted).

In attributing heavy weight to the floodgates concern

pressed in this case, the Court today veers away from

Cite as: 551 U. S. ____ (2007) 11

Opinion of GINSBURG, J.

Justice Harlan’s sound counsel.

B

In the Court’s view Robbins’ complaint poses an inordi

nate risk of imposing on vigilant federal officers, and

inundating federal courts, for his pleading “fails to fit the

[Court’s] prior retaliation cases.” Ante, at 16. “Those

cases,” the Court says, “turn[ed] on an allegation of [an]

impermissible purpose and motivation.” Ibid. (citing

Rankin v. McPherson, 483 U. S. 378 (1987); Lefkowitz v.

Turley, 414 U. S. 70 (1973); and United States v. Jackson,

390 U. S. 570 (1968)). Robbins’ suit, the Court maintains,

raises a different sort of claim: that BLM employees went

“too far” in their efforts to achieve an objective that “[a]ll

agree” was “perfectly legitimate”: “trying to induce [Rob

bins] to grant an easement for public use.” Ante, at 17.

Developing a legal test to determine when federal officials

have gone “too far,” ibid., the Court asserts, would be an

“endlessly knotty” task; the attendant uncertainty, the

Court fears, would bring on a “tide of suits,” inducing an

undesirable timidity on the part of federal officials, ante,

at 22–23.

The Court’s assertion that the BLM officials acted with

a “perfectly legitimate” objective, ante, at 17, is a dubious

characterization of the long campaign to “bury” Robbins.

See App. 49. One may accept that, at the outset, the BLM

agents were motivated simply by a desire to secure an

easement. But after Robbins refused to cover for the

officials’ blunder, they resolved to drive him out of busi

ness.3 Even if we allowed that the BLM employees had a

——————

3 Robbins agreed, the Court relates, “that the Bureau’s employees

intended to convince Robbins to grant an easement.” Ante, at 17. In

support, the Court notes that Robbins posed this question: “[C]an

government officials avoid the Fifth Amendment’s prohibition against

taking property without just compensation by using their regulatory

powers to harass, punish, and coerce a private citizen into giving the

12 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

permissible objective throughout their harassment of

Robbins, and also that they pursued their goal through

“legitimate tactics,” id., at 16,4 it would not follow that

Robbins failed to state a retaliation claim amenable to

judicial resolution.

Impermissible retaliation may well involve lawful action

in service of legitimate objectives. For example, in Board

of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668

(1996), this Court held that a county board of commission

ers may cross into unconstitutional territory if it fires a

contractor for speaking out against members of the Board

on matters of public concern. The Court recognized that

terminating a contractor for public criticism of board

practices might promote legitimate governmental objec

tives (e.g., maintaining relationships of trust with those

from whom services are purchased). Id., at 674. The

Court, furthermore, instructed that even where the back

ground law allows a government agency to terminate a

contractor at will, the agency lacks carte blanche to do so

——————

Government his property without payment?” Ante, at 17, n. 8 (quoting

Brief for Respondent 21; alteration in original). Robbins’ descriptive

words—“harass, punish, and coerce”—are hardly synonyms for “con

vince.” Robbins has maintained throughout that the officials’ motives

were vindictive, a characterization amply supported by the record.

Indeed, the agents’ seven-year campaign of harassment calls to mind

W. H. Auden’s famous lines: “Their cause, if they had one, is nothing to

them now; They hate for hate’s sake.” There Will Be No Peace, re

printed in W. H. Auden: Collected Poems 615 (E. Mendelson ed. 2007).

4 The Court observes that the Interior Board of Land Appeals (IBLA)

approved some of BLM’s enforcement actions against Robbins. Ante, at

5–6, 19. Significantly, however, the IBLA declared that, as it was not a

court “of general jurisdiction,” it had “no authority to invalidate [BLM

action] based on proof of improper motive on the part of a BLM official

or employee involved in the development or issuance of the decision.”

Robbins v. Bureau of Land Management, 170 I. B. L. A. 219, 227 (2006).

Accordingly, the IBLA refused to entertain Robbins’ contention that

BLM enforcement actions were “part of a pattern of activities amount

ing to willful violations of civil, criminal, or constitutional law.” Ibid.

Cite as: 551 U. S. ____ (2007) 13

Opinion of GINSBURG, J.

in retaliation for constitutionally protected conduct. Id.,

at 677.5 The same is true here: BLM officials may have

had the authority to cancel Robbins’ permits or penalize

his trespasses, but they are not at liberty to do so selec

tively, in retaliation for his exercise of a constitutional

right.6

I therefore cannot join the Court in concluding that

Robbins’ allegations present questions more “knotty” than

the mine-run of constitutional retaliation claims. Because

“we have established methods for identifying the presence

of an illicit reason . . . in retaliation cases,” ante, at 16,

Robbins’ suit can be resolved in familiar fashion. A court

need only ask whether Robbins engaged in constitution

ally protected conduct (resisting the surrender of his

property sans compensation), and if so, whether that was

the reason BLM agents harassed him.7

——————

5 Invoking Pickering v. Board of Ed. of Township High School Dist.

205, Will Cty., 391 U. S. 563 (1968), the Court, in Board of Comm’rs,

Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 685 (1996), held that the

Board’s legitimate interests must be balanced against the free speech

interests at stake to arrive at the appropriate constitutional judgment.

6 In Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977),

the Court held that a defendant in a First Amendment employment

retaliation case can avoid liability by showing that “it would have

reached the same decision as to [the plaintiff’s] reemployment . . . in the

absence of the protected conduct.” This test, the Court explained, is

necessary to “distinguis[h] between a result caused by a constitutional

violation and one not so caused.” Id., at 286. Mt. Healthy’s causation

standard, as today’s opinion notes, is applicable here; hence, Robbins’

claim is not governed by a “motive-is-all test.” See ante, at 20, n. 10.

Thus, if the BLM officials proved at trial that, even if Robbins had not

refused to grant an easement gratis, they nonetheless would have

canceled his permits, harassed his guests, and filed false criminal

charges against him, they would escape liability for retaliation in

violation of the Fifth Amendment (though perhaps exposing themselves

to other sanctions).

7 The Government, I recognize, should not be hampered in pursuing

lawful means to drive a hard bargain. See ante, at 19–20, n. 10.

Trespassing, filing false criminal charges, and videotaping women

14 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

C

The Court’s opinion is driven by the “fear” that a

“Bivens cure” for the retaliation Robbins experienced may

be “worse than the disease.” Ante, at 22. This concern

seems to me exaggerated. Robbins’ suit is predicated upon

the agents’ vindictive motive, and the presence of this

element in his claim minimizes the risk of making every

day bureaucratic overreaching fare for constitutional

litigation. See Olech, 528 U. S., at 566 (BREYER, J., con

curring in result) (“In my view, the presence of [vindictive

action] in this case is sufficient to minimize any concern

about transforming run-of-the-mill zoning cases into cases

of constitutional right.”).

Indeed, one could securely forecast that the flood the

Court fears would not come to pass. In Passman, the

Courts said that it did not “perceive the potential for . . . a

deluge,” because, under 42 U. S. C. §1983, “a damages

remedy [was] already available to redress injuries such as

petitioner’s when they occur under color of state law.” 442

U. S., at 248. A similar sideglance could be cast here.

Because we have no reason to believe that state employees

are any more or less respectful of Fifth Amendment rights

than federal agents, §1983 provides a controlled experi

ment. If numerous Bivens claims would eventuate were

courts to entertain claims like Robbins’, then courts should

already have encountered endeavors to mount Fifth

Amendment Takings suits under §1983. But the Court of

Appeals, the Solicitor General, and Robbins all agree that

there are no reported cases on charges of retaliation by

state officials against the exercise of Takings Clause

——————

seeking privacy to relieve themselves, however, are not the tools of

“hard bargaining.” They have a closer relationship to the armed thug’s

demand: “Your money or your life.” By concentrating on the allegedly

lawful actions the BLM agents took (e.g., canceling a right-of-way),

ibid., the Court gives a bloodless account of Robbins’ complaint.

Cite as: 551 U. S. ____ (2007) 15

Opinion of GINSBURG, J.

rights. 433 F. 3d 755, 767 (CA10 2006); Brief for Petition

ers 48; Brief for Respondent 31. Harassment of the sort

Robbins alleges, it seems, is exceedingly rare. Cf. Olech,

528 U. S., at 565–566 (BREYER, J., concurring in result).8

One can assume, arguendo, that, as the Court projects,

an unqualified judgment for Robbins could prompt “claims

in every sphere of legitimate governmental action affect

ing property interests.” Ante, at 21. Nevertheless, shut

ting the door to all plaintiffs, even those roughed up as

badly as Robbins, is a measure too extreme. Cf. Hein v.

Freedom From Religion Foundation, Inc., post, at 4 n. 1

(dissenting opinion) (“To the degree . . . claims are merito

rious, fear that there will be many of them does not pro

vide a compelling reason . . . to keep them from being

heard.”). There are better ways to ensure that run-of-the

mill interactions between citizens and their Government

do not turn into cases of constitutional right. Cf. Bivens,

403 U. S., at 410 (Harlan, J., concurring in judgment) (“I

simply cannot agree . . . that the possibility of frivolous

claims . . . warrants closing the Courthouse doors to people

in Bivens’ situation. There are other ways, short of that,

of coping with frivolous lawsuits.” (internal quotation

marks omitted)).

Sexual harassment jurisprudence is a helpful guide.

Title VII, the Court has held, does not provide a remedy

for every epithet or offensive remark. “For sexual har

assment to be actionable, it must be sufficiently severe or

pervasive to alter the condition of the victim’s employment

and create an abusive work environment.” Meritor Sav

ings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal

——————

8 The rarity of such harassment makes it unlikely that Congress will

develop an alternative remedy for plaintiffs in Robbins’ shoes, and it

strengthens the case for allowing a Bivens suit. As noted above, every

time the Court declined to recognize a Bivens action against a federal

officer, it did so in deference to a specially crafted administrative

regime. See supra, at 9.

16 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

quotation marks, alterations, and citations omitted). See

also National Railroad Passenger Corporation v. Morgan,

536 U. S. 101, 115 (2002) (hostile work environments

develop “over a series of days or perhaps years and, in

direct contrast to discrete acts, a single act of harassment

may not be actionable on its own”). Adopting a similar

standard for Fifth Amendment retaliation claims would

“lesse[n] the risk of raising a tide of suits threatening

legitimate initiative on the part of the Government’s

employees.” Ante, at 23. Discrete episodes of hard bar

gaining that might be viewed as oppressive would not

entitle a litigant to relief. But where a plaintiff could

prove a pattern of severe and pervasive harassment in

duration and degree well beyond the ordinary rough-and

tumble one expects in strenuous negotiations, a Bivens

suit would provide a remedy. Robbins would have no

trouble meeting that standard.9

IV

Because I conclude that Robbins has a right to sue

under Bivens, I must briefly address the BLM employees’

argument that they are entitled to qualified immunity. In

resolving claims of official immunity on summary judg

ment, we ask two questions. First, “[t]aken in the light

most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitu

tional right?” Saucier v. Katz, 533 U. S. 194, 201 (2001).

And, if so, was that right clearly established, such that a

reasonable officer would have known that his conduct was

——————

9 My “emphasis on the extent and duration of the harm suffered by

Robbins,” the Court asserts, indicates that under my approach, Robbins

“could not obtain relief without . . . satisfying an unspecified, and

unworkable, ‘too much’ standard.” Ante, at 18, n. 9. My approach,

however, is no less specific nor more unworkable than the approach

courts routinely employ in Title VII harassment cases.

Cite as: 551 U. S. ____ (2007) 17

Opinion of GINSBURG, J.

unlawful. Id., at 201–202.10

The Takings Clause instructs that no “private property

[shall] be taken for public use, without just compensation.”

U. S. Const., Amdt. 5. Robbins argues that this provision

confers on him the right to insist upon compensation as a

condition of the taking of his property. He is surely cor

rect. Correlative to the right to be compensated for a

taking is the right to refuse to submit to a taking where no

compensation is in the offing. Cf. Dolan v. City of Tigard,

512 U. S. 374 (1994) (invalidating a permit condition that

would have constituted a taking); Nollan v. California

Coastal Comm’n, 483 U. S. 825 (1987) (same).

Robbins further argues that the BLM agents’ persistent

harassment impermissibly burdened his right to refuse to

grant the Government something for nothing. Once again,

he is surely correct. To cover for their mistake in failing to

record the prior easement, BLM demanded, with no legal

authority, that Robbins cede a new easement. Robbins

refused, as was his constitutional right. At that point,

BLM might have sought to take Robbins’ property by

eminent domain (assuming the agency was authorized to

do so), or it might have attempted to negotiate with him.

Instead, the agents harassed Robbins and tried to drive

him out of business.

The Court has held that the Government may not un

necessarily penalize the exercise of constitutional rights.

This principle has been applied, most notably, to protect

the freedoms guaranteed by the First Amendment. See,

e.g., Umbehr, 518 U. S., at 674–675, 686 (freedom of

speech); O’Hare Truck Service, Inc. v. City of Northlake,

518 U. S. 712, 716–720 (1996) (freedom of association);

——————

10 As I have elsewhere indicated, in appropriate cases, I would allow

courts to move directly to the second inquiry. See Brosseau v. Haugen,

543 U. S. 194, 201–202 (2004) (BREYER, J., joined by SCALIA and

GINSBURG, JJ., concurring). See also County of Sacramento v. Lewis,

523 U. S. 833, 859 (1998) (STEVENS, J., concurring in judgment).

18 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

Sherbert v. Verner, 374 U. S. 398, 403–406 (1963) (freedom

of religion). But it has also been deployed to protect other

constitutional guarantees, including the privilege against

self-incrimination, Turley, 414 U. S., at 82–84, the right

to trial by a jury, Jackson, 390 U. S., at 581–583, and the

right to travel, Memorial Hospital v. Maricopa County,

415 U. S. 250, 254–262 (1974). The principle should apply

here too. The constitutional guarantee of just compensa

tion would be worthless if federal agents were permitted to

harass and punish landowners who refuse to give up

property without it. The Fifth Amendment, therefore,

must be read to forbid government action calculated to

acquire private property coercively and cost-free, and

measures taken in retaliation for the owner’s resistance to

uncompensated taking. Viewing the facts in the light

most favorable to Robbins, BLM agents plainly violated

his Fifth Amendment right to be free of such coercion.

The closest question in this case is whether the officials

are nevertheless entitled to immunity because it is not

clearly established that retaliation for the exercise of Fifth

Amendment rights runs afoul of the Constitution. The

“dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a rea

sonable officer that his conduct was unlawful in the situa

tion he confronted.” Saucier, 533 U. S., at 202. As noted,

all concede that there are no reported cases recognizing a

Fifth Amendment right to be free from retaliation. How

ever, it is inconceivable that any reasonable official could

have believed to be lawful the pernicious harassment

Robbins alleges. In the egregious circumstances of this

case, the text of the Takings Clause and our retaliation

jurisprudence provided the officers fair warning that their

behavior impermissibly burdened a constitutional right.

See Hope v. Pelzer, 536 U. S. 730, 739–741 (2002).

Cite as: 551 U. S. ____ (2007) 19

Opinion of GINSBURG, J.

* * *

Thirty-six years ago, the Court created the Bivens rem

edy. In doing so, it assured that federal officials would be

subject to the same constraints as state officials in dealing

with the fundamental rights of the people who dwell in

this land. Today, the Court decides that elaboration of

Bivens to cover Robbins’ case should be left to Congress.

Ante, at 23. But see supra, at 14, n. 6. The Bivens analog

to §1983, however, is hardly an obscure part of the Court’s

jurisprudence. If Congress wishes to codify and further

define the Bivens remedy, it may do so at anytime. Unless

and until Congress acts, however, the Court should not

shy away from the effort to ensure that bedrock constitu

tional rights do not become “merely precatory.” Passman,

442 U. S., at 242.

For the reasons stated, I would affirm the judgment of

the Court of Appeals insofar as it addressed Robbins’ Fifth

Amendment retaliation claim.11

——————

11 I agree that Robbins failed to state a claim under RICO and there

fore join Part III of the Court’s opinion.