Opposition Brief — Wilkie v. Robbins

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No. 06-219 —— ‘

INTHE =| «OCT 25 2006

Supreme Court of the United States <a

Charles Wilkie et al..,

Petitioners,

V.

Harvey Frank Robbins

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF IN OPPOSITION

Thomas C. Goldstein Karen Budd-Falen

AKIN, GUMP, STRAUSS, (Counsel of Record)

HAUER & FELD LLP Marc Stimpert

1333 New Hampshire Ave.. NW Bupp-FALEN LAw Offices, LLC

Washington, DC 20036 300 East 18th Street

; Cheyenne, WY 82003

Jeffrey L. Fisher (307) 632-5105

STANFORD LAW SCHOOL

SUPREME COURT Amy Howe

LITIGATION CLINIC Kevin K. Russell

559 Nathan Abbott Way Howe & RusseLL, P.C.

Stanford, CA 94305 4607 Asbury Pl., NW

Washington, DC 20016

October 25, 2006

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

ii

QUESTIONS PRESENTED

1. Whether government officials can be guilty under the

Racketeer Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. 1961 et seq., of the predicate act of extortion under

color of official right when they engage in otherwise lawful

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

citizen for the benefit of the government, rather than with an

intent to merely carry out their regulatory duties, and if so

whether that statutory prohibition was clearly established

under the facts of this case.

2. Whether respondent’s Bivens claim based on the

exercise of his Fifth Amendment rights is precluded by the

availability of judicial review under the Administrative

Procedure Act, 5 U.S.C. 701 et seq., or other statutes for the

kind of administrative actions on which his claim is based.

3. Whether the Fifth Amendment protects against

retaliation for exercising a “right to exclude” the government

from one’s property outside the eminent domain process and,

if so, whether that Fifth Amendment right was clearly

established under the facts of this case.

ill

TABLE OF CONTENTS

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Re ee GB ieririctetiserecesentenineentciasesancssissiniasninnicee iil

Se Gr PE TID shnctcesccctsoscnssncssncsorsenedentsceveinensice iv

RATES Ce CBU CAB cscccscccscscccnssescsssnssenssecaceneseses l

REASONS FOR DENYING THE WRIT ....... cee eeeeeee 6

I. The Tenth Circuit’s Interlocutory Ruling On

Respondent’s RICO Claim Does Not Warrant

TT CURIE sciinsscclnccnsxceiacsueiddeendieiiiniaieiecitiasiasiiiindnde 7

A. The Decision Below Implicates No Division Of

SEITE sscscissicidiinininsiniiniaieaitasiindiideiialadgiaia iiatlnieante 7

B. This Case Is A Poor Vehicle For Resolving Any

Questions Regarding RICO’s Application To The

Conduct Of Government Regulators..................006+ 9

C. The Tenth Circuit’s Decision Is Correct. ............... 12

I]. The Tenth Circuit’s Bivens Holding Does Not

Warrant Review By This Court ...............ccccecceeeeeeeeeeees 17

A. This Court Lacks Jurisdiction To Consider The

Second Question Presented. ................cceseeeeseeeeeeeees 17

B. There Is No Division Among The Circuits

Regarding The APA’s Preclusion Of Bivens

Seat ctesicicsihiiscdninsinbiearsindetelidiiiiiadeinhibdigiaiasenniiinidinnnnninens 20

C. The APA Does Not Preempt Respondent’s

BPO IES CRN TRE Te I ecceeniccticestctcetesenencncsnenenes 22

Ill. There ls No Basis For Review Of The Tenth

Circuit’s Fifth Amendment Rulling.............0......::ceceee 23

A. Petitioners Do Not Assert Any Circuit Conflict

Or Any Other Substantial Ground For Certiorari... 23

B. The Decision Below Is Correct. ..................::eeeeee0+ 24

IV. The Tenth Circuit’s Decision Will Have No Impact

On The Government’s Legitimate Land Management

PEE | cetdnndiniccbnudetinsensiipienmiiinbichiateninendiniinbiedeinasion 29

iV

TABLE OF AUTHORITIES

Cases

Behrens v. Pelletier, 516 U.S. 299 (1996) .....cccccccccseeeeeeneee 19

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ...ccccccsceseeeeeseeees 3

Blackledge v. Perry, 417 U.S. 21 (1974) ...cccceccccceeessteeeeeee 27

Bordenkircher v. Hayes, 434 U.S. 357 (1977)...........000 27, 28

Burton v. Jones, 321 F.3d 569 (6th Cir. 2003) .........00.0....002. 27

Bush v. Lucas, 462 U.S. 367 (1983) ............esscccssssesecsseseees 23

Davis v. Passman, 442 U.S. 228 (1979) .....ccccccceecceeceeeeseeeeees 18

DeLoach v. Bevers, 922 F.2d 618 (10th Cir. 1990).............. 27

Dolan v. City of Tigard, 512 U.S. 374 (1994) we 11, 16

Evans v. United States, 504 U.S. 255 (1992)...... cece eeeees 13

Hamilton-Brown Shoe Co. v. Wolf Bros.,

8 | __ PERE Ee ne EEE 12

Hartman v. Moore, 126 S. Ct. 1695 (2006) ..............ceceeeeeeees 18

Pape V. FeTaer, FFB UB. TIO COG’) vcecvvsssecerevsscesecssesesessses 17

Johnson v. Jones, 515 U.S. 304 (1995) voce ccccecceceeeeeeeeeeees 17

Kaiser Aetna v. United States, 444 U.S. 164

ara ii iietinsteiaiiitadedtsaaivaintidcindandbiibinahinieiitnindianssnsenmniaes 4, 24, 25, 26

Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 1999).......... 19

Merritt v. Hawk, 153 F. Supp 2d 1216 (D. Colo. 2001)....... 27

Miller v. United States Dep't of Agriculture,

143 F.3d 1413 (1 ith Cir. 1998) .............cccccccoscsssccsssees 20, 21

Mitchell v. Forsyth, 472 U.S. 511 (1985) 0... cece eee 17,18

Nebraska Beef, Lid. v. Greening, 2004 WL 546900

I SD TITIE ieeseciateetecliaitaieainetiididanatabtinadianteckanancaaits 20

Nebraska Beef, Lid. v. Greening, 398 F.3d 1080

| TTS A SN ee ETE 20, 21

Nollan v. California Coastal Comm'n,

X_N ERE verre on eae eT De EO 15, 26

Scheidler v. Nat'l Org. for Women, Inc.,

Se Cas Be isaciiiniidisicasbisiphiintenbidncapiientienppicnmentapesae 13

Schweiker v. Chilicky, 487 U.S. 412 (1988) ...............00. 22, 23

Vv

Sedima SPRL vy. Imrex Co., 473 U.S. 479 (1985) .....ccccceeeees 16

Sinclair v. Hawke, 314 F.3d 934 (8th Cir. 2003).... 7, 8, 20, 21

Sky Ad, Inc. v. McClure, 951 F.2d 1146 (9th Cir. 1991) ......21

Swint v. Chambers County Comm'n, 514 U.S. 35 (1995).... 18

United States v. Castor, 937 F.2d 293 (7th Cir. 1991)......... 14

United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979)13, 14, 15

United States v. Clemente, 640 F.2d 1069 (2d Cir. 1981).... 15

United States v. Foster, 443 F.3d 978 (8th Cir. 2006).......... 13

United States v. Frazier, 560 F.2d. 884 (8th Cir. 1977)....... 15

United States v. Gillock, 445 U.S. 360 (1980)..............cceeeees 13

United States v. Goodwin, 457 U.S. 368 (1982).............2008 28

United States v. Green, 350 U.S. 415 (1956) ........cccceceeeeeee 14

United States v. Hairston, 46 F.3d 361 (4th Cir. 1995)........ 15

United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982)........ 14

United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982)..... 15

United States v. Panaro, 266 F.3d 939 (9th Cir. 2001)........ 15

United States v. Scacchetti, 668 F.2d 643 (2d Cir. 1982)..... 15

United States v. Swift, 732 F.2d 878, 879 (11th Cir. 1984).. 13

United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975)......... 15

United States v. Warledo, 557 F.2d 721 (10th Cir. 1977) .... 14

United States v. Zappola, 677 F.2d 264 (2d Cir. 1982)........ 14

Virginia Military Inst. v. United States,

Fe Shs Dy 6 Wa pivciinienvvisanstnitcitinasipiiiieaipbinhiaidaiiadaianidle 12

Walz v. Town of Smithtown, 46 F.3d 162 (2d Cir. 1995)...... 16

Wilson v. Layne, 526 U.S. 603 (1999) 0... ccceceseeseeeeeeees 16

Statutes

Administrative Procedures Act, 5 U.S.C. §§ 701,

GEE, coneccsnsssevsnmntitiininseaetionemsunidaninhisiieaiiiiiiaaailianl passim

Hobbs Act, §§ 18 USC 1951 et. seq. ...... ee eeeeeeeeeeee passim

Racketeer Influenced and Corrupt Organizations Act,

FO Crain Eb COUPEE PIED cnscncnsvevsesetncincsiemubininatins 2,4, 5, 11

TaN, TERRE, FRI, © GI crivscvitscciscncnitsiistintiniiiamneintadasainiain 5,11

vi

Regulations

CS a

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|

Constitutional Provisions

SELES STUCCO OTe

STATEMENT OF THE CASE

Petitioners seek certiorari to review an interlocutory

order addressing what they describe as novel questions of law

arising from an unusual dispute over easements on federal

and private lands.

1. Respondent Harvey Frank Robbins is the owner of the

High Island Ranch, a cattle and guest ranch in Hot Springs

County, Wyoming. Pet. App. 2a. From 1987 through 1994,

the United States Bureau of Land Management (BLM) sought

to acquire the ranch, or at least an easement across it,

apparently to secure public access to the nearby Shoshone

National Forest. Appellee’s Supplemental App. at 574-609,

Robbins v. Wilkie, 433 F.3d 755 (10th Cir. 2006) (hereinafter

Appellee’s Supplemental App.). During that time, the ranch

was owned by respondent’s predecessor-in-interest, George

Nelson. Petitioners, employees of the BLM, persuaded

Nelson to grant the Government a road easement in 1994. Pet.

App. 2a. The easement was a long-term property interest,

allowing the BLM to use and maintain the road both for its

own use and for the use of its assigns. Appellee’s

Supplemental App. 619-20.

In exchange for the easement, the BLM granted Nelson a

more limited right-of-way to use the same road as it passed

over federal property. Appellee’s Supplemental App. 634.

Unlike the easement, the right-of-way required Nelson to pay

the BLM a “fair market value rental,” id, and limited

Nelson’s use and maintenance of the road, id. at 634-36. For

example, while the easement given to the BLM allowed the

Government to permit mining companies to use the road to

reach federal land, the right of way did not permit Nelson to

use the road for that purpose. /d. at 636. Nelson timely

recorded his right-of-way, but for reasons undisclosed in the

record, the BLM failed to record its easement. Pet. App. 2a.

Unaware of the unrecorded easement, respondent

purchased the property and recorded the warranty deed,

thereby extinguishing the BLM’s unrecorded easement. /d. at

2

2a. Upon learning of their mistake, petitioners demanded that

respondent give them the easement without compensation and

when he refused, they commenced a campaign of threats,

harassment and intimidation designed to coerce him into

relinquishing his right to exclude the Government from his

private property. /d at 2a-3a. Among other things,

petitioners brought unfounded criminal charges against

respondent, trespassed on his property, cancelled his special

recreation use permit and grazing privileges, interfered with

his guest cattle drives, refused to maintain the road providing

access to his property, and threatened to cancel, and then did

cancel, his right-of-way across federal lands. /d. at 3a. The

net result was the complete destruction of respondent’s

business.

The purpose of these actions was clear. Former BLM

range conservationist Edward Parodi testified that petitioner

Leone boasted to him and to other BLM employees on a

“daily” basis that he wanted to “get [Robbins’s] permits and

get him out of business” and that this hostile attitude was

shared by other petitioners. Appellee’s Supplemental App.

165-166. Parodi also testified that “the attitude just got worse

and worse and worse towards Mr. Robbins, and pretty soon I[

was being asked to do things that | . . . shouldn’t have been

authorized to do.” /d. at 163. Parodi eventually resigned and

later explained that “I didn’t think | could do the job any

longer .. . . It's one thing to go after somebody that is

willfully busting the regulations and going out of their way to

get something out of the government. I only saw Mr.

Robbins as a man standing up for his rights for his property.”

Id. at 173-74, 242.

2. After enduring many years of abuse, respondent sued

petitioners in their individual capacities. Among other things,

respondent alleged that petitioners had engaged in a pattern of

extortion and blackmail in violation of the Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§§ 1961-1968. Respondent also sought relief pursuant to

3

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), for violations of his Fifth

Amendment right to exclude the Government from his

property in the absence of a proper taking and just

compensation. Pet. App. la-2a.'

The district court initially granted petitioners’ motion to

dismiss on the grounds that respondent had failed to plead

damages under RICO, and that his Bivens claim was

precluded by the Administrative Procedures Act (APA), 5

U.S.C. §§ 701-706 (2006), and the Federal Tort Claims Act

(FTCA). /d. at 3a. On appeal, the Tenth Circuit reversed. /d.

at 76a-84a. It held that respondent adequately pled a variety

of damages in his RICO count. /d. at 79a-80a. The court

further held that neither the APA nor the FTCA precluded his

Bivens claim. Id. at 83a-84a. The court agreed with

petitioners that if respondent “attempted to hold Defendants

liable for alleged constitutional violations committed while

reaching a final agency decision, a Bivens action would not be

available.” /d. at 8la (citation omitted). However, the court

rejected the assertion that the APA precluded respondent’s

Fifth Amendment claim entirely. The court noted that “the

APA contains no remedy whatsoever for constitutional

violations committed by individual federal employees

unrelated to final agency action.” /d. at 8la-82a. In this case,

the court held, “several of Appellant’s allegations of

Defendants’ intentional misconduct are unrelated to any final

agency action and are therefore properly within the scope of a

Bivens claim.” Jd. at 82a. The court did not, however,

determine which allegations were precluded and which could

go forward, leaving that task for the district court. See id. at

25a-26a.

' Respondent also claimed additional violations of his rights

under the Fourth, Fifth, and Fourteenth Amendments, but those

claims are not at issue here. Pet. App. 3a-4a.

4

On remand, petitioners did not ask the district court to

decide which of respondent’s allegations on the Fifth

Amendment count were precluded by the APA. /d. at 26a.

Instead, petitioners moved to dismiss on qualified immunity

grounds. /d. at 55a. The district court denied the motion in

relevant part, holding that the complaint adequately pled

violations of clearly established rights under RICO and the

Fifth Amendment. /d. at 58a-62a, 72a-74a. Petitioners did

not appeal. Instead, petitioners engaged in discovery, see id.

at 38a, and nine months later, moved for summary judgment,

re-asserting their defense of qualified immunity, id. at 33a.

The district court denied the motion, concluding that

respondent had substantiated the allegations in his complaint.

Id. at 48a. Faced then with the same facts as it had assumed

in ruling on the motion to dismiss, the district court held that

its earlier legal determination — that the rights violated were

“clearly established” — was law of the case and denied the

_ motion for summary judgment. /d. at 36a-39a.

3. Petitioners appealed again, and the Tenth Circuit

affirmed. /d. at 26a. The court first recognized the “Fifth

Amendment right to exclude the government from one’s

private property” as “‘a fundamental element of the property

right."” /d. at 12a (quoting Kaiser Aetna v. United States, 444

U.S. 164, 178-80 (1979)). The court concluded that “[i]f the

right to exclude means anything, it must include the right to

prevent the government from gaining an ownership interest in

one’s property outside the procedures of the Takings Clause.”

Id. at 13a. “Thus, Robbins has a Fifth Amendment right to

prevent BLM from taking his property when BLM is not

exercising its eminent domain power.” /d. at 14a. The court

further concluded that petitioners’ actions in this case violated

that clearly established constitutional right: “If we permit

government officials to retaliate against citizens who chose to

exercise this right, citizens will be less likely to exclude the

government and government officials will be more inclined to

obtain private property by means outside the Takings Clause.

The constitutional right to just compensation, in turn, would

become meaningless.” /d. at 14a-15a.

The court also rejected petitioners’ assertion of qualified

immunity to respondent’s RICO claims. The court noted that

petitioners “do not contest” that respondent “sufficiently

alleged Defendants engaged in a pattern of racketeering

involving extortion in violation of clearly established law

under RICO,.the Hobbs Act, and Wyo. Stat. Ann. § 6-2-402.”

Id. at 17a. Instead, petitioners argued that “[b]ecause [they]

had legal authority to require Robbins to grant the BLM a

right-of-way in exchange for his right-of-way on federal

lands, . . . their conduct in seeking the right-of-way does not

constitute a clearly established predicate act under either the

Hobbs Act or Wyoming law.” /d. The court rejected this

assertion as based on a fundamental mischaracterization of

respondent’s claim:

Robbins does not allege that Defendants committed

extortion by attempting to obtain a right-of-way.

Rather, he alleges Defendants’ other actions,

including refusing to maintain the road providing

access to Robbins’ property, cancelling Robbins’

special recreation use permit and grazing privileges,

bringing unfounded criminal charges against

Robbins, trespassing on Robbins’ private property,

and interfering with Robbins’ guest cattle drives,

were al] committed in an attempt to coerce Robbins

into granting BLM a right-of-way.

Id. The court noted that although petitioners claimed

generally that all of their conduct was within their lawful

regulatory authority, they did “not enumerate specific

regulatory provisions permitting each of their actions.” /d.

The court explained that even if petitioners had a general

legal right to require respondent to provide an easement in

exchange for his right-of-way across federal land, they could

not achieve that lawful end through the unlawful means of

extortion. /d. at 18a-20a. The court then rejected petitioners’

6

claim that their conduct was not extortionate, but simply

aggressive exercise of their lawful regulatory authority. That

claim, the court held, depended on disputed questions of fact

that could not be resolved on summary judgment. /d. at 21a.

The court also held that petitioners’ conduct independently

violated Wyoming’s extortion statute. /d. at 22a-25a.

Finally, the court rejected petitioners’ argument that the

APA precluded respondent’s Bivens claim. The Court noted

its prior holding in the first appeal that the APA precluded

respondent’s Fifth Amendment claim only to the extent it was

based on “individual action leading to a final agency

decision.” /d. at 25a. The court then declined petitioners’

request that it “determine which allegations remain and which

are precluded,” explaining that “Defendants did not raise this

issue in their motion for summary judgment.” /d. at 25a-26a.

REASONS FOR DENYING THE WRIT

Petitioners seek review of an interlocutory decision

addressing legal questions that, by their own

acknowledgment, rarely arise in the normal operation of the

Government’s land management programs. Petitioners do not

assert that the court of appeals’s decision gives rise to any

significant, much less sustained, conflict among the circuits.

And, in fact, even the shallow division of authority they

allege is illusory. Rather than deciding any broad question of

general legal significance, the decision below narrowly

addressed the peculiar facts of this unusual case and reached a

result which, while plainly correct, will have no broader or

recurring significance. Indeed, nothing in the decision

threatens the legitimate regulatory authority of federal land

management officials who have long managed to resolve

disputes with local landowners without resort to the tactics

employed in this case. Finally, even if the court of appeals’s

holdings were worthy of this Court’s review, the current

interlocutory posture of this case makes review at this time

inadvisable, raising substantial jurisdictional impediments

that could preclude this Court from ever reaching at least one

of the questions presented. The petition should be denied.

I. The Tenth Circuit’s Interlocutory Ruling On

Respondent’s RICO Claim Does Not Warrant Review

By This Court. |

Petitioners first ask this Court to decide whether a

plaintiff may state a claim under RICO by alleging that

“government officials, whose actions were authorized by law,

had an extortionate intent to obtain property for the sole

benefit of the government.” Pet. 13. That question is not the

basis of any circuit conflict and, in any event, does not

actually arise on the facts of this case. Moreover, the decision

below is correct, simply applying the settled principle that the

abuse of otherwise lawful authority for extortionate purposes

violates the Hobbs Act and RICO.

A. The Decision Below Implicates No Division Of

Authority.

Petitioners assert that the decision below conflicts with

one decision of one other court of appeals, Sinclair v. Hawke,

314 F.3d 934 (8th Cir. 2003). See Pet. 15-16. That assertion

is incorrect and, even if it were not, review of such a nascent

and shallow split would be premature at this time.

In Sinclair, federal bank regulators took escalating action

against a bank, ultimately declaring the bank insolvent and

appointing a statutory receiver. 314 F.3d at 937-38. The bank

brought a civil RICO claim, alleging that the regulators

conspired to use their authority to “prevent minority and low-

income borrowers from having access to credit.” /d. at 939.

The Eighth Circuit held that this did not state a violation of

RICO because “Mr. Sinclair has cited no authority for the

proposition that federal employees who take regulatory action

consistent with their statutory powers engaged in a ‘pattern of

racketeering activity’ if those actions are adverse to a

particular industry or business activity.” /d. at 943.

That conclusion was both correct and_ entirely

inapplicable to this case. As the Eighth Circuit observed,

“regulators do not become racketeers by acting like

aggressive regulators.” Sinclair, 314 F.3d at 944. _ Instead,

RICO requires proof that the challenged conduct actually

violated one of a list of predicate statutes, such as the Hobbs

Act. 18 U.S.C. § 1961(1) (2006). Although the plaintiff in

Sinclair alleged that the defendants’ conduct was unfair, and

potentially discriminatory, it did not allege that the regulators

had engaged in “murder, kidnapping, gambling, arson,

robbery, bribery, extortion, dealing in obscene matter, or

dealing in a controlled substance,” or any other RICO

predicate act. /d. At most, the plaintiff alleged a form of

racial discrimination, but discrimination is not an act of

racketeering. /d. By contrast, in this case the Tenth Circuit

concluded that the defendants’ conduct violated two RICO

predicate statutes, the Hobbs Act and Wyoming’s extortion

statute. Pet. App. 18a-25a. Although petitioners dispute that

their conduct violated the Hobbs Act properly construed,

Sinclair has nothing to say on that question.

In addition, even if Sinclair were read to announce a

general rule regarding all RICO claims against government

regulators, that rule is plainly restricted to cases in which the

defendants’ conduct was “consistent with their statutory

powers.” 314 F.3d at 943. But in this case, the Tenth Circuit

held that petitioners would be subject to liability only if they

were not acting to “carry out their regulatory duties” in filing

false criminal charges against respondent, trespassing on his

property, and engaging in the various other extortionate acts

that form the basis of liability in this case. Pet. App. 18a. See

also infra 9-11.

Petitioners cannot plausibly claim that any disagreement

between the Tenth and Eight Circuits is sufficiently clear and

entrenched as to warrant review by this Court at this time.

That only two circuits have even arguably weighed in on the

question presented is good reason to doubt that the issue is of

9

recurring importance. Moreover, to the extent the question is

sufficiently important to warrant this Court’s review at some

point, that review could be considerably assisted by awaiting

the views of other courts of appeals and clarification of the

scope of the rules adopted by the Eighth and Tenth Circuits.

B. This Case Is A Poor Vehicle For Resolving Any

Questions Regarding RICO’s Application To The

Conduct Of Government Regulators.

Even if petitioners had presented this Court with a

question worthy of review, this case presents a particularly

poor vehicle for deciding it.

1. Resolving the RICO question petitioners present — i.e.,

whether government officials “acting pursuant to their

regulatory authority” can be held liable for engaging in

extortion under color of law under the Hobbs Act, Pet. (I) —

will have no effect on the actual disposition of this case.

Although the court of appeals assumed for the sake of its

decision that petitioners’ conduct was authorized in some

general sense, the bulk of the challenged conduct was plainly

outside the scope of any conceivable authority petitioners

may have had. As a result, even if this Court determined that

the Hobbs Act applied only to extortionate conduct outside an

official’s “regulatory authority,” petitioners still would not be

entitled to qualified immunity.

Petitioners argue that the “basic regulatory activity giving

rise to this case” was the lawful act of “attempting to secure a

reciprocal right-of-way over private land intermingled with

public lands.” Pet. 10. But as the Tenth Circuit noted,

“Defendants . . . apparently misunderstand Robbins’

allegations.” Pet. App. 17a. The court of appeals concluded

that respondent’s claim does not, for example, depend on

10

petitioners’ enforcement of 43 C.F.R. § 2800.0-2° to deny his

application for a federal right-of-way. Pet. App. 17a. The

extortion in this case arises principally from the other actions

petitioners took — actions not authorized by the regulations or

any other source of law, such as filing false criminal charges,

trespassing on respondent’s land, canceling his special use

and grazing permits on false pretenses, etc. See Pet. App.

17a. Petitioners cannot plausibly claim that such conduct was

authorized by their employer as part of the “give and take” of

federal land use negotiations. Pet. 11.‘ Indeed, many of

? Unless otherwise indicated, citations to the regulations in this

brief refer to the version in effect at the time of the events at issue

in this case.

> That said, petitioners’ revocation of, and subsequent refusal

to reinstate, respondent’s right-of-way across federal land was not

authorized. As it stood at the time, the regulation stated that BLM

could condition the grant of a federal right-of-way upon the appli-

cant’s “grant to the United States [of] an equivalent right-of-way

that is adequate in duration and rights.” 43 C.F.R. § 2801.1-2

(1980) (emphasis added). Contrary to the regulation, the easement

petitioners demanded from respondent was not the “equivalent” of

the right-of-way that they offered to him. For example, the right of

way offered to respondent required annual rental payments while

the easement demanded from respondent did not. Appellee’s Sup-

plemental App. at 619-620, 633-636. Moreover, the easement de-

manded by petitioners had only a few minor restrictions, while the

right-of-way offered to respondent included several pages of limita-

tions regarding the use and maintenance of the road. /d Thus,

while BLM licensees could use the road for mineral extraction pur-

poses, respondent could not. /d.

* For example, the grazing permit regulations specified a sin-

gle approved method of securing access to private land under that

program — the agency may include the access requirement as part of

the grazing lease. 43 C.F.R. 4130.3-2(h). Nothing in the regula-

tions purports to authorize officials to seek an easement through the

extortionate methods employed in this case. Moreover, nothing in

the regulations permits BLM officials to demand a long-term ease-

1]

petitioners’ actions were independently unlawful (e.g., filing

false criminal charges and trespassing). Those unauthorized

acts are more than a sufficient predicate for respondent’s

Hobbs Act and RICO claims in this case.

2. Deciding the first question presented will fail to

resolve the RICO claim for another reason as well. In

addition to holding that petitioners’ conduct constituted

extortion “under color of official right” under the Hobbs Act,

the Tenth Circuit separately held that petitioners conduct

violated the Wyoming extortion statute. Pet. App. 22a-2S5a.

The violation of the state statute is an independent and

sufficient predicate for respondent’s RICO claim. See 18

U.S.C. § 1961(1). Petitioners do not, however, seek review of

the Tenth Circuit’s construction of state law. See Pet. (1)

(challenging only whether conduct constituted “the predicate

act of extortion under color of official right”).° Nor is that

issue worthy of this Court’s review. Consequently, even if

this Court were to hold in petitioners’ favor on the question

they present, respondent’s RICO claim would still proceed.

3. Finally, as the Solicitor General frequently reminds

the Court, “[t]he interlocutory nature of the ruling provides a

sufficient basis to deny review.” Brief for the Equal

Employment Opportunity Comm’n in Opposition at 6, Sidley

Austin LLP v. EEOC, No. 05-1481 (July 2006).° This Court

ment over the entirety of the roadway across respondent’s land as a

condition of receiving a temporary license to graze cattle on some

parcels of federal land. See 43 C.F.R. §§ 4130.2(d), 4130.3-2(h).

Indeed, any such overreaching regulations would be unconstitu-

tional. See Dollan v. City of Tigard, 512 U.S. 374, 386-396 (1994).

> Although the Question Presented does not cite the Hobbs

Act, the phrase “under color of official right” is taken directly from

that Act’s definition of “extortion,” see 18 U.S.C. § 1951(b)(2) ,

and is not used in the Wyoming extortion statute, see Wyo. Stat.

Ann. § 6-2-402(a).

° See also, e.g., Brief for the Respondents in Opposition at 11,

Hamdan v. Rumsfeld, 543 U.S. 1096 (2004) (No. 04-702); Brief for

12

“generally await|s] final judgment in the lower courts before

exercising [its] certiorari jurisdiction.” Virginia Military Inst.

v. United States, 508 U.S. 946, 946 (1993) (Scalia, J.,

respecting denial of petition for writ of certiorari). “[E]xcept

in extraordinary cases, the writ is not issued until final

decree.” Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S.

251, 258 (1916).

The Solicitor General offers no compelling reason for

departing from his normal position in this case. The RICO

question depends on the assumption that petitioners engaged

in extortionate cynduct that was within their regulatory

authority. That assumption may well be disproved in further

proceedings and, at the very least, the question is best

resolved on the basis of a fully developed factual record

rather than on the court of appeals’s assumption.

The same is true of the other questions presented as well.

As shall be described below, the scope of the court of

appeals’s holdings on respondent’s Bivens claim depends on

what conduct the lower courts ultimately determine to be

“unrelated to any final agency action.” Pet. App. 82a. See

infra 17-19. Waiting for final judgment will also avoid

jurisdictional barriers to this Court’s review of that holding.

See id. Finally, the need to decide any of these issues may be

mooted before final judgment if, for example, petitioners’

view of the facts of the case prevails at trial.

C. The Tenth Circuit’s Decision Is Correct.

This Court’s review is also unnecessary because the

decision below was correct.

the United States in Opposition at 8, Alameida v. Mayweathers, 540

U.S. 815 (2003) (No. 02-1655); Brief for the Respondent in Oppo-

sition at 7-8, Romano v. SEC, 526 U.S. 1111 (1998) (No. 98-1271);

Brief for the United States in Opposition at 5, Fleet Factors Corp.

v. United States, 498 U.S. 1046 (1990) (No. 90-504).

13

1. The Hobbs Act defines “extortion” to mean “the

obtaining 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.” 18 U.S.C. § 1951(b)(2).

Nothing in this definition precludes an extortion claim against

a government official simply because the abuse of

government authority was the means of the extortion. To the

contrary, the wrongful use of otherwise lawful governmental

authority is at the historical heart of the common law crime of

extortion and remains actionable under the Hobbs Act today.

See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393

(2003) (discussing common law origins of extortion). Indeed,

this Court and others have repeatedly affirmed Hobbs Act

convictions where the defendant misused official authority to

commit extortion. For example, in Evans v. United

States,504 U.S. 255 (1992), a county commissioner

committed extortion by implicitly promising to vote for a

rezoning application in exchange for cash. Voting in favor of

the proposal was indisputably within the commissioner’s

lawful authority, in the same way that some of petitioners’

extortionate conduct may have involved acts within their

lawful authority in this case. However, like petitioners here,

the commissioner in Evans exercised his lawful authority for

an unlawful purpose and thereby ran afoul of the Hobbs Act.

Indeed, that is the essence of extortion “under color of official

right.” See, e.g., United States v. Gillock, 445 U.S. 360

(1980) (state senator blocked extradition of a defendant and

agreed to introduce legislation in order to obtain cash

payments); United States v. Foster, 443 F.3d 978 (8th Cir.

2006) (city aldermen agreed to vote in favor a construction

project in order to obtain cash payments), cert. denied, No.

06-5964, 2006 WL 2400928 (Oct. 2, 2006); United States v.

Swift, 732 F.2d 878, 879 (11th Cir. 1984) (city official who

“had authority” to approve payment requests violated the

Hobbs Act when he facilitated approvals in order to obtain

money from a construction company); United States v.

14

Jannotti, 673 F.2d 578 (3d Cir. 1982) (city councilmen sought

approval for hotel projects in order to obtain money from

undercover agents posing as foreign investors); United States

v. Cerilli, 603 F.2d 415 (3d Cir. 1979) (state transportation

officials leased equipment from a private company in order to

obtain campaign contributions from that company).

A different question might be presented if petitioners

could show either that federal law required them to take the

actions that they did, or that federal law permitted them to

engage in the challenged conduct for the purpose of extorting

an easement. But the most petitioners can say in this case is

that their end may have been lawful (i.e., securing an

easement), and that some of the means employed would have

been within their lawful authority if used for a lawful purpose

(e.g., revoking grazing permits for genuine violations of the

grazing rules). But petitioners cannot reasonably claim that

anything in federal law either permitted or required them to

file false criminal charges, trespass on respondent’s land, and

the like, in order to extort an easement from him. As the

Tenth Circuit recognized, even if petitioners may have had a

right to an easement, they did not have the right to obtain that

easement through extortion. Pet. App. 18a-20a (noting

uniform rejection of “claim of right” defense to extortion

outside context of labor disputes). See also, e.g., United

States v. Castor, 937 F.2d 293, 299 (7th Cir. 1991); United

States v. Zappola, 677 F.2d 264, 269-270 (2d Cir. 1982);

United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979); United

States v. Warledo, 557 F.2d 721, 729-30 (10th Cir. 1977).

Nor is petitioners’ extortionate conduct excused simply

because they sought property for the government rather than

themselves. Fifty years ago, this Court held that “extortion as

defined in the [the Hobbs Act] in no way depends upon

having a direct benefit conferred on the person who obtains

the property.” United States v. Green, 350 U.S. 415, 420

(1956). The courts thus regularly apply the Hobbs Act to

15

extortion undertaken for the benefit of a third party.’ This is

true even when the defendant is a government official seeking

to benefit another through the abuse of otherwise lawful

authority.®

Acknowledging that it “is not always necessary that the

defendant himself benefit from the extortion,” petitioners seek

to distinguish this case by proposing an exception to the rule:

it is not extortion if the third-party recipient is the

government. Pet. 13-14. Nothing in the language of the

Statute supports this exception, nor do petitioners cite any

case adopting their revision of the Act. To the contrary,

courts have recognized that “gravamen of the offense is loss

to the victim,” United States v. Frazier, 560 F.2d. 884, 887

(1977), not the identity of the beneficiary. See 18 U.S.C.

§ 1951(b)\(2) (defining extortion without reference to the

purpose or beneficiary of the extortion).

Accordingly, this Court and others have applied the

concept of extortion to attempts to obtain property for the

benefit of the government in a number of similar contexts.

See, e.g., Nollan v. California Coastal Comm'n, 483 U.S.

825, 837 (1987) (where Coastal Commission required public

easement as condition of approval for a rebuilding permit,

” See, e.g., United States v. Panaro, 266 F.3d 939, 948 (9th

Cir. 2001); United States v. Clemente, 640 F.2d 1069, 1097-1080

(2d Cir. 1981); United States v. Frazier, 560 F.2d 884, 887 (8th Cir.

1977).

* See, e.g., United States v. Hairston, 46 F.3d 361, 365 (4th

Cir. 1995) (city aldermen extorted contributions for a charity run by

aldermen); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982)

(public officials extorted money for political allies); United States

v. Scacchetti, 668 F.2d 643 (2d Cir. 1982) (city judge extorted auto-

mobile services for his friend); United States v. Cerilli, 603 F.2d

415, 420 (3d Cir. 1979) (state transportation officials extorted

money for their political party); United States v. Trotta, 525 F.2d

1096 (2d Cir. 1975) (town commissioner extorted money for the

local political committee).

16

holding that “unless the permit condition serves the same

governmental purpose as the development ban, the building

restriction is not a valid regulation of land use but ‘an out-

and-out plan of extortion’”) (citation omitted); Dolan v. City

of Tigard, 512 U.S. 374, 387 (1994) (same); Walz v. Town of

Smithtown, 46 F.3d 162, 169 (2d Cir. 1995) (rejecting

qualified immunity claim where defendant denied excavation

permit to plaintiffs because they refused to give the city a

portion of their land, reasoning that the defendant “could not

have believed . . . that he had discretion to deny an excavation

permit to [plaintiffs] as a means of extorting land from

them”).

Petitioners may believe that the failure to explicitly

exclude extortion on behalf of the government is a defect in

the RICO statute. But that “defect — if defect it is — is

inherent in the statute as written, . . . [and] its correction must

lie with Congress. It is not for the judiciary to eliminate the

private action in situations where Congress has provided it.”

Sedima SPRL v. Imrex Co., 473 U.S. 479, 499-500 (1985).

2. Whether petitioners’ obligations under the Hobbs Act

were clearly established when the conduct in this case took

place is not a question of general importance worthy of this

Court’s review. Petitioners do not assert that there is any

circuit conflict over that question and, in any event, the Tenth

Circuit’s decision was correct. On qualified immunity, the

relevant question is whether “in the light of preexisting law

the unlawfulness [is] apparent.” Wilson v. Layne, 526 U.S.

603, 615 (1999). Here, each component of petitioners’

unlawful extortion is well-established by prior precedent.

This Court and numerous courts of appeal have affirmed

Hobbs Act Convictions of officials who took otherwise lawful

acts to extort property from citizens and have held that

personal interest need not exist to find a Hobbs Act violation.

See supra 13-15. That no other case has confronted a situation

precisely like this one is a testament to the unusual and

egregious nature of petitioners’ conduct, not to any

17

uncertainty in the law. See Hope v. Pelzer, 536 U.S. 730, 741

(2002).

Il. The Tenth Circuit’s Bivens Holding Does Not

Warrant Review By This Court.

Petitioners next ask this Court to decide whether the APA

precludes a Bivens cause of action in the factual context of

this case. This Court lacks jurisdiction to decide that

question. At the same time, even if this Court had jurisdiction

to consider the question, there is no reason to exercise it in

this case. Petitioners fail to identify any- real division among

the courts of appeals on the question they present and the

decision below is, in fact, correct.

A. This Court Lacks Jurisdiction To Consider The

Second Question Presented.

Appeals from denial of qualified immunity claims fall

within a narrow exception to the normal jurisdictional bar

against appellate review of non-final orders. See, e.g.,

Johnson v. Jones, 515 U.S. 304, 309-12 (1995). Whether a

Bivens cause of action is available in this case falls outside

that limited jurisdiction because it does not go to petitioners’

entitlement to qualified immunity, and because petitioners

raised precisely the same objection in a prior qualified

- immunity appeal.

1. A qualified immunity appeal is strictly limited to a

single “question of law: whether the legal norms allegedly

violated by the defendant were clearly established at the time

of the challenged actions.” Mitchell v. Forsyth, 472 U.S. S511,

528 (1985). Accordingly, although a district court may

simultaneously resolve other questions when the defense is

raised, the only question on appeal is whether the defendant's

conduct violated clearly established law. See, e.g.. Johnson,

515 U.S. at 313. Petitioners’ argument that the APA pre-

empts the Bivens cause of action is plainly distinct from the

question whether their conduct violated clearly established

law. Indeed, the two legal inquiries share virtually nothing in

18

common, the qualified immunity question turning on the

nature of the underlying constitutional right and the Bivens

pre-emption question turning on Congress’s intent to provide

an exclusive statutory means for enforcing that right.

Compare Mitchell, 472 U.S. at 528, with Davis v. Passman,

442 U.S. 228, 246-47 (1979).

Petitioners argue that the pre-emption issue is

nonetheless reviewable because it is “inextricably

intertwined” with the qualified immunity question. Pet. 20.

But this Court has previously rejected the assertion that

appellate courts have broad “pendent appellate jurisdiction”

in qualified immunity appeals. Swint v. Chambers County

Comm'n, 514 U.S. 35, 49-51 (1995). Petitioners’ citation to a

footnote in Hartman v. Moore, 126 S. Ct. 1695, 1702 n.5

(2006), establishes nothing to the contrary. Pet. 21. In that

case, this Court considered whether lack of probable cause for

a prosecution was a necessary element of a First Amendment

retaliatory prosecution claim. Hartman, 126 S. Ct. at 1701.

The Court rejected the suggestion that the question went

beyond the scope of a proper qualified immunity appeal,

explaining that the “definition of an element of the tort []

directly implicated . . . the defense of qualified immunity.”

Id. at 1702 n.5. By contrast, a Bivens pre-emption claim goes

to the existence of a cause of action and not to the definition

of the underlying constitutional violation. The only thing the

qualified immunity and Bivens pre-emption claims have in

common is that they are “threshold argument(s],” Pet. 20, that

would provide a complete defense if proven. But that could

be said of any number of affirmative defenses (e.g., statute of

limitations, waiver, etc.), none of which is subject to

interlocutory review.

2. Even if this Court might otherwise have jurisdiction to

review a Bivens pre-emption question on an interlocutory

appeal, that jurisdiction is not available in this case because

petitioners previously raised the same claim, under precisely

19

the same facts, in a prior appeal to the Tenth Circuit. See Pet.

App. 80a-84a.

Contrary to petitioners’ assertion, Behrens vy. Pelletier,

516 U.S. 299 (1996), does not allow a second interlocutory

appeal when nothing of relevance has changed between the

motion to dismiss and the motion for summary judgment. In

Behrens, this Court held that “resolution of the immunity

question may ‘require more than one judiciously timed

appeal,’ because the legally relevant factors bearing upon the

[immunity] question will be different on summary judgment

than on an earlier motion to dismiss.” /d. at 309. In this

case, however, “the legally relevant factors” have not changed

between the motions to dismiss and for summary judgment.

The question upon which petitioners seek review is a pure

question of law and, in any event, the district court concluded

that the evidence substantiated the allegations in the

complaint, leaving the court with the same factual predicate

on summary judgment as it had assumed on the motion to

dismiss. Pet. App. 37a-39a. In such circumstances, a second

appeal serves no purpose, as there is no reason to think that

the court of appeals will not find the issue governed by law of

the case or simply adhere to its prior decision as binding

circuit precedent. See Kimberlin v. Quinlan, 199 F.3d 496,

501 (D.C. Cir. 1999) (applying law of the case to second

qualified immunity appeal). Accordingly, where the law and

facts have not changed between the motion to dismiss and

motion for summary judgment, the district court’s decision is

not “‘too important to be denied review,’ as [the Court’s]

finality jurisprudence requires.” Behrens, 516 U.S. at 308

(internal citation omitted).

20

B. There Is No Division Among The Circuits

Regarding The APA’s Preclusion Of Bivens

Claims.

Even if this Court had jurisdiction to consider petitioners’

Bivens pre-emption argument, the issue is unworthy of this

Court’s review.

Petitioners’ assertion of a circuit split on the question is

meritless. The Tenth Circuit held that the APA does not

preclude a Bivens suit against individual BLM officials for

“intentional misconduct . . . unrelated to any final agency

action.” Pet. App. 82a No other circuit has held to the

contrary. To be sure, some courts have said that the APA

may preclude a Bivens action in appropriate circumstances

even though “the scope of the two remedies may not be

entirely coextensive.” Pet. 18. But those statements have no

relevance in this case, as the APA does not even apply to the

challenged conduct here because it is “unrelated to any final

agency action.” Pet. App. 82a. In each of the decisions cited

by petitioners, the defendant’s actions were indisputably

“related” to final agency action and were, in fact, actually

subject to review under the APA.’ The only question in

” In Sinclair v. Hawke, 314 F.3d 934, 942 (8th Cir. 2003), the

regulatory actions of the Office of the Centroller of the Currency

“were subject to administrative and judicial review processes that

[plaintiff] invoked.” In Nebraska Beef, Ltd. v. Greening, 398 F.3d

1080 (8th Cir. 2005), cert. denied, 126 S. Ct. 1908, the USDA in-

spectors’ reports of food safety violations were actually under ad-

ministrative appeal when the Bivens claim was made. See Nebraska

Beef, Lid. v. Greening, 2004 WL 546900, at *3 (D. Neb. 2004),

rev'd 398 F.3d 1080. In Miller v. United States Dep't of Agricul-

ture, 143 F.3d 1413, 1416 (11th Cir. 1998), the plaintiff's dismissal

from his position as County Executive Director of the Agriculture

Stabilization and Conservation Service “constitute[d] a final order,”

which the plaintiff was entitled to challenge by “bring[ing] suit in

federal court for relief.” And under nearly identically facts in

Moore v. Glickman, “the APA provide[d] [plaintiff] with judicial

21

those cases, therefore. was whether the plaintiff was entitled

to the additional remedy of a Bivens claim for compensatory

damages. In this case, however, the question is whether the

existence of an inapplicable statute precludes respondent from

seeking any relief at all for serious constitutional violations.

On that question, the cases cited by petitioners have nothing

to say.

In addition, the circuit authority is inapposite because it

does not deal with the regulatory regime at issue in this case.

None of the cases cited by petitioners hold that existence of

APA review is in itself sufficient to preclude a Bivens action.

See, e.g., Moore, 113 F.3d at 994 (“Moore is correct that

judicial review of her claim under the APA does not

automatically preclude her Bivens claim.”). Instead, each

decision held that the APA provided an exclusive remedy in

the case before the court because of the comprehensive

regulatory regime applicable in that case.'° None of the cases

examined whether the regulatory regime governing federal

land management is sufficiently comprehensive as to indicate

Congress’s intent to displace a Bivens remedy, the essential

question here. .

review of her termination.” 113 F.3d 988, 993 (9th Cir. 1997) .

Finally, in Sky Ad, Inc. v. Me’ lure 951 F.2d 1146, 1148 (9th Cir.

1991), plaintiff complained of an FAA rule, and thus could seek

judicial review because of “Congress” authorization in the APA for

courts of appeals to set aside unconstitutional rulemaking.”

° See, e.g., Sinclair, 314 F.3d at 942 (describing complex sys-

tem of federal regulation of banks and concluding that “this com-

prehensive statutory regime precludes the Bivens damages claims

asserted”), Nebraska Beef, 398 F.3d at 1084 (relying on “stringent

exhaustion requirement for grievances filed against USDA employ-

ees” in addition to availability of APA review); Moore, 113 F.3d at

992-93 (relying on comprehensive federal statute governing federal

employment rights), Miller, 143 F.3d at 1416 (same).

22

C. The APA Does Not Preempt Respondent’s Bivens

Claim In This Case.

The Tenth Circuit’s rejection of petitioners’ Bivens pre-

emption claim was, in any event, correct.

A Bivens remedy is foreclosed only when there are

“special factors counseling hesitation in the absence of

affirmative action by Congress,” an “explicit statutory

prohibition against the relief sought,” or an “exclusive

statutory alternative remedy.” Schweiker v. Chilicky, 487

U.S. 412, 421 (1988) (internal citation omitted). Petitioners

rely on this last exception, arguing that “the remedial

mechanism established by the APA .... precluded

respondent’s Bivens claim.” Pet. 18.

The court of appeals has already ruled that the APA

precludes respondent’s Bivens claim to the extent it is based

on “constitutional violations committed while reaching a final

agency decision.” Pet. App. 8la. It is unclear at this stage

how much of the predicate for respondent’s Fifth Amendment

claim falls within that description because petitioners

declined to ask the district court to apply the Tenth Circuit’s

ruling at summary judgment. See id at 26a. Petitioners

nonetheless ask this Court to hold that they cannot be sued

under Bivens even for violations “unrelated to final agency

decisions appealable pursuant to the APA.” /d. at 83a. Under

petitioners’ apparent view, individuals have no remedy at all

for even the most egregious violations of their most basic

constitutional rights whenever the defendants are employed

by a federal agency subject to the APA. That unprecedented

claim finds no support in the decisions of this or any other

court.

Nothing in the APA indicates any congressional intent to

immunize unconstitutional conduct undertaken by

government officials “unrelated to any final agency action.”

Pet. App. 82a. Petitioners’ assertion that “a Bivens action

would be inconsistent with Congress's decision to shield non-

final agency action from review under the APA,” Pet. 19

23

(emphasis omitted), misses the mark. Petitioners’ misconduct

falls outside the APA because it is unrelated to agency action,

not because it is non-final. And this Court has never held that

a Bivens action is precluded simply because the officials

violating the plaintiffs constitutional rights work for an

administrative agency subject to the APA. The decisions in

Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v.

Chilicky, 487 U.S. 412 (1988), did not so hold but turned

instead on a careful examination of the detailed statutory

scheme Congress has established beyond the APA for judicial

review of claims by federal employees, Bush, 462 U.S. at

380-89, and social security claimants, Schweiker, 487 U.S. at

424-25. Petitioners point to no comparable system of review

in this case. That Congress enacted a statute to provide a

remedy to other plaintiffs for different kinds of violations

does not “suggest[] that Congress has provided what it

considers adequate remedial mechanisms for constitutional

violations that may occur in the course of its administration.”

Schweiker, 487 U.S. at 423.

Ill. There Is No Basis For Review Of The Tenth Circuit’s

Fifth Amendment Ruling.

Finally, petitioners ask this Court to review the Tenth

Circuit’s fact-bound determination that their conduct violated

respondent’s Fifth Amendment right to exclude the

Government from his property absent a proper taking with

just compensation. That question, which petitioners

acknowledge is not the subject of any circuit split, does not

warrant review by this Court either.

A. Petitioners Do Not Assert Any Circuit Conflict Or

Any Other Substantial Ground For Certiorari.

While petitioners complain at length that the decision

below is wrong, they make only a half-hearted attempt to

explain why that asserted error is worthy of this Court’s

review. Indeed, they acknowledge that there is no circuit split

on the question, asserting instead that the decision below is

24

“the first” to address the question whether the Fifth

Amendment prohibits government officials from attempting

to coerce a waiver of Fifth Amendment rights. See Pet. 12,

25-26.

That petitioners can find no other decision addressing

this question illustrates its unworthiness for review by this

Court; petitioners can hardly claim that the decision below is

of recurring importance when no other court has addressed

the specific questions raised in this unusual case in the 215

years since the Fifth Amendment’s ratification. The

interlocutory posture of the appeal and the undeveloped

factual record, see supra 12, make the case a particularly

poor vehicle for resolving the scope of the Fifth

Amendment’s protections in any event.

B. The Decision Below Is Correct.

Faced with an unusual, perhaps unprecedented, campaign

by government officials to evade the strictures of both their

regulatory authority and the Fifth Amendment, the Tenth

Circuit properly applied. established legal principles in

rejecting petitioners’ claim of qualified immunity.

1. This Court has previously recognized, and petitioners

concede, that the Fifth Amendment protects the foundational

right of every citizen to exclude the Government from his

property unless the Government actually takes the property

through eminent domain and tenders the owner just

compensation. See, e.g., Kaiser Aetna v. United States, 444

U.S. 164, 180 (1979). The essence of respondent's claim is

that petitioners attempted to evade this constitutional

limitation on their authority in order to acquire his property

by threat and extortion rather than through bona fide

negotiations or eminent domain.

Petitioners’ principal defense to that claim is that their

attempt to evade the Fifth Amendment has, thus far, failed.

Pet. 22-23. The Fifth Amendment, they say, will not be

violated until they have succeeded in extorting property from

25

respondent without invoking eminent domain or paying just

compensation. They therefore claim that respondent’s “sole

remedy under the Fifth Amendment is to seek just

compensation under the Tucker Act, 18 U.S.C. 1491 (2006),

once a taking has occurred.” /d. at 23. This argument is

baseless. If petitioners actually succeeded in coercing

respondent into granting them an easement without

compensation, the Government doubtless would argue that he

has no claim under the Tucker Act because there was no

taking. | Thus, under petitioners’ apparent view, the

Constitution neither protects citizens from officials’ attempts

to extort their property, nor provides a remedy if the extortion

is successful.

Unsurprisingly, there is no basis for this remarkable

claim of constitutional inadequacy. The Fifth Amendment

provides one, and only one, method for the coercive

extraction of private property by the Government: eminent

domain. Although that method entails the payment of just

compensation — the neglect of which is subject to judicial

remedy — it also necessarily precludes government officials

from attempting to extract property through other coercive

means. Thus, in Kaiser Aetna this Court held that the Fifth

Amendment protected a private citizen from _ the

Government’s attempt to secure an easement outside the

eminent domain process, even though the Government had

not yet obtained the property right. In that case, the Army

Corps of Engineers asserted that its right to regulate the

navigable waters of the United States under the Rivers and

Harbors Act included the power to require the defendants to

grant a public easement on a private marina. 444 U.S. at 168-

69. This Court rejected the Government’s argument:

{W]e hold that the “right to exclude,” so universally

held to be a fundamental element of the property

right, falls within this category of interests that the

government cannot take without compensation ... .

Thus, if the Government wishes to make [private

26

property|. . . into a public aquatic park . . . it may

not, without invoking its eminent domain power and

paying just compensation, require them to allow free

[public] access... .

Id. at 179-180. Importantly, the Court did not hold, as

petitioners now urge, that the Fifth Amendment had no

application unless and until the Government succeeded in

obtaining the easement. Instead, the Court allowed the

landowner to assert the Fifth Amendment as a shield against

the Government's attempt to coercively acquire an easement

outside of the eminent domain process.

The Tenth Circuit’s Fifth Amendment holding also draws

support from “the well-settled doctrine of ‘unconstitutional

conditions.”*” Dolan v. City of Tigard, 512 U.S. 374, 385

(1994). Under that doctrine, “the government may not

require a person to give up a constitutional right — here the

right to receive just compensation when property is taken for

a public use — in exchange for a discretionary benefit

conferred by the government where the benefit sought has

little or no relationship to the property.” /d. Thus, in Nolan v.

California Coastal Commission, 483 U.S. 825, 837-38

(1987), this Court held that the United States Coastal

Commission could not condition a building permit on the

developer granting a public access easement across his land

because there was no “essential nexus” between the permit

requested and the easement demanded. In the absence of such

a nexus, the Government’s demand for a citizen’s property is

“simply trying to obtain an easement through gimmickry,

which convert{s] a valid regulation of land use into ‘an out-

and-out plan of extortion.”” Dolan, 512 U.S. at 387 (internal

citations omitted).

The same is true here. The Constitution forbade

petitioners from conditioning respondent’s right to other

government benefits (e.g., grazing permits, road maintenance,

etc.) on his waiver of his Fifth Amendment rights. The denial

of those benefits had no relationship to the BLM’s legitimate

27

regulatory interests relating to grazing, road maintenance,

etc., and was nothing more than an “out-and-out plan of

extortion.” Jd.

Finally, as the court of appeals noted, just as the

Government may not condition governmental benefits on the

waiver of constitutional rights, it may not go even further and

affirmatively punish citizens for the exercise of their

fundamental constitutional freedoms. It is true that

unconstitutional retaliation has been recognized most

frequently in the context of the right to petition for redress of

grievances and the contexts of free speech and association.

But contrary to petitioners’ assertion, neither the doctrine nor

its rationale is limited to protecting First Amendment

freedoms. This Court has recognized that, as a general

matter, “[t]o punish a person because he has done what the

law plainly allows him to do is a due process violation ‘of the

most basic sort.”” Bordenkircher v. Hayes, 434 U.S. 357, 363

(1977). Thus, for example, the Constitution prohibits

retaliating against a criminal defendant who successfully

exercises his Due Process right to appeal his conviction by

imposing a greater sentence upon reconviction, North

Carolina v. Pearce, 395 U.S. 711, 725 (1969), or by re-

indicting the defendant on more serious charges, Blackledge

v. Perry, 417 U.S. 21, 28-29 (1974). In reaching these

decisions, this Court has not relied on any principle specific

to the protections of the First Amendment or the Due Process

Clause. Rather, the Court has acted on the general principle

that “for an agent of the State to pursue a course of action

whose objective is to penalize a person’s reliance on his legal

rights is ‘patently unconstitutional.’” Bordenkircher, 434 U.S.

'' See, e.g., Burton v. Jones, 321 F.3d 569 (6th Cir. 2003) (al-

leging retaliation for filing a lawsuit); DeLoach v. Bevers, 922 F.2d

618 (10th Cir. 1990) (alleging retaliation for hiring an attorney );

Merritt v. Hawk, 153 F. Supp 2d 1216 (D. Colo. 2001) (alleging

retaliation for petitioning to improve conditions).

28

at 363 (citation omitted). See also United States v. Goodwin,

457 U.S. 368, 372 (1982) (“For while an individual certainly

may be penalized for violating the law, he just as certainly

may not be punished for exercising a protected statutory or

constitutional right.”) (internal citations omitted).

The court of appeals was thus correct in acknowledging

in this case that citizens are protected from retaliation for the

exercise of rights found under the Fifth Amendment as well:

If we permit government officials to retaliate against

citizens who chose to exercise this right, citizens will

be less likely ‘o exclude the government, and

government officials will be more inclined to obtain

private property by means outside the Takings

Clause. The constitutional right to just

compensation, in turn, would become meaningless.

Because retaliation tends to chill citizens’ exercise of

their Fifth Amendment right to exclude the

government from private property, the Fifth

Amendment prohibits such retaliation as a means of

ensuring that the right is meaningful.

Pet. App. 14a-1 5a.

2. Finally, although petitioners complain that the Tenth

Circuit erred in finding respondent’s constitutional rights

clearly established in the context of this case, they fail to

demonstrate why that fact-bound question is worthy of this

Court’s review. As demonstrated above, any reasonable

official in petitioners’ position would have understood that he

could not evade the limitations of the Takings Clause, and

punish a citizen’s insistence on his Fifth Amendment rights,

through a campaign of threats, harassment and retaliation.

Indeed, petitioners do not seriously assert otherwise, but

instead simply repeat their baseless claim that their conduct

was nothing more than a proper “exercise of their lawful

regulatory authority.” Pet. 27.

29

IV. The Tenth Circuit’s Decision Will Have No Impact

On The Government’s Legitimate Land Management

Interests.

Unable to identify a significant division of authority on

any of the legal questions decided by the court of appeals. or

any other sound basis supporting review of this interlocutory

decision, petitioners resort to predictions of dire consequences

for the national government if review is denied. Pet. 28-29.

Those speculations are without foundation and, in any case,

do not provide a reason for review of the decision in this case

at this time.

There is no question that the federal government owns

much land in the West and interacts with private land owners

on a regular basis. /d. But petitioners provide no reason to

think that the Tenth Circuit’s decision will interfere with that

process in any way. The court of appeals went out of its way

to state that it was nor holding that routine implementation of

the reciprocal right-of-way regulation would be illegal. Pet.

App. 17a-18a. Moreover, petitioners have identified no other

statute or regulation authorizing extortion as a means for

obtaining easements outside the process of eminent domain.

Nor do petitioners claim that such conduct is part of the

BLM'’s ordinary practices or that prohibiting it would impair

the agency’s ability to fulfill its mission.

Indeed, petitioners themselves assure this Court that

conflicts such as this one are very rare, noting that the “BLM

has without incident negotiated thousands of such reciprocal

rights-of-way across private lands intermingled with public

lands.” Pet. 28. This undoubtedly explains why petitioners

are unable to cite even a single case arising under similar

circumstances, much less demonstrate an entrenched division

of authority among the courts of appeals on any of the

questions raised in this case.

In any event, if petitioners’ dire predictions do somehow

come to pass, surely future cases with similar facts will arise

and give this Court ample opportunity to address the

30

questions presented in this petition at that time. Waiting for a

future case would also avoid the numerous jurisdictional and

other prudential impediments to reaching the questions

presented in this case.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Thomas C. Goldstein Karen Budd-Falen

AKIN, GUMP, STRAUSS, (Counsel of Record)

HAUER & FELD LLP Marc Stimpert

1333 New Hampshire Ave.. NW Bupp-FALEN Law Offices, LLC

Washington, DC 20036 300 East 18th Street

Cheyenne, WY 82003

Jeffrey L. Fisher (307) 632-5105

STANFORD LAW SCHOOL

SUPREME COURT Amy Howe

LITIGATION CLINIC Kevin K. Russell

559 Nathan Abbott Way Howe & RUSSELL, P.C.

Stanford, CA 94305 4607 Asbury PI., NW

Washington, DC 20016

October 25, 2006