# Opposition Brief — Wilkie v. Robbins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0290%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 537

## Text

| Ca)

No. 06-219 —— ‘

INTHE =| «OCT 25 2006

Supreme Court of the United States 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

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“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).

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0290%3A03. Public record. Not legal advice.