Petitioners Brief — Wilkie v. Robbins

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

‘

No. 06-219 span’. GE LER

In the Supreme Court of the Gnited States

CHARLES WILKIE, ET AL., PETITIONERS

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE PETITIONERS

PAUL D. CLEMENT

Solicitor General

Conusel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

BARBARA L. HERWIG

EDWARD HIMMELFARB

Afforneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2216

QUESTIONS PRESENTED

This case involves a damages action brought against

officials of the Bureau of Land Management in their indivi-

dual capacities based on alleged actions taken within the

individuals’ official regulatory responsibilities in attempting

to obtain a reciprocal right-of-way across private property

intermingled with public lands. The following questions are

presented:

1. Whether government officials acting pursuant to their

regulatory authority 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 for attempting to obtain property for the sole

benefit of the government and, if so, whether that statutory

prohibition was clearly established.

2. Whether respondent’s Bivens claim based on the

exercise of his alleged 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.

(1)

PARTIES TO THE PROCEEDINGS

Petitioners are Charles F. Wilkie, Darrell C. Barnes,

Teryl Shryack, Michael Miller, Gene J. Leone, and David L.

Wallace. Respondent is Harvey Frank Robbins, Jr.

(IT)

TABLE OF CONTENTS

Page

IG 2 cde ien dade esenessbeeseedesesaewes 1

Ee POE a PR Ee ee ee 1

Constitutional and statutory provisions involved ........... 2

a id lee ei i ital cidiein whale alae 2

IIIS LE ee Ee eee 12

Argument:

1. The court of appeals erred in rejecting

petitioners’ qualified immunity defense to

I I 6.6.0 6s dic teecndescccessees 15

A. Government officials do not become

racketeers or extortionists merely by taking

overzealous regulatory actions ............... 16

B. Extortion requires showing both that

government officials acted with “wrongful”

intent and that they “obtained” a private

benefit for themselves or others .............. 18

C. Petitioners did not act with a “wrongful” or

extortionate intent and did not “obtain” any

property for the private benefit of

PE GP GED oc ccc ccccccecscviceccece 21

D. The regulatory actions at issue cannot

support a claim of extortion in any event ...... 24

E. Ata minimum, petitioners did not violate

any clearly established RICO right ........... 26

Il. The court of appeals erred in rejecting petitioners’

qualified immunity defense to respondent’s Bivens

EE enh bn 4beGnnd nes c0eeenenh0eskebevn seacntes 27

A. The Fifth Amendment, Tucker Act, and

APA preclude a Bivens cause of action in

PE Kankaecneankuekeddeubcakeocuues 27

(IIL)

Table of Contents—Continued: Page

1. A Bivens action is inconsistent with claims

under the Fifth Amendment’s Just

Compensation Clause ........ccccccseccces

2. The APA precludes respondent’s Bivens

NINE 65 ovo vesnnceeakdivesexs

3. None of the limitations of the APA warrant

the extension of a Bivens remedy in this

NE 060 046046 dovea cae cuceekcueeKnKsa

B. There is no Fifth Amendment right against

retaliation for the exercise of property rights ....

C. Respondent has not alleged the violation of any

right protected by the Fifth Amendment ........

1. The Fifth Amendment guarantees only the

right to just compensation .................

2. Respondent cannot claim that petitioners

imposed an unconstitutional condition on

either his property rights or his right to

EES PRP ES

D. Ata minimum, petitioners did not violate any

clearly established Fifth Amendment right ......

SIE 6A CA oka Sin cubn dx cu ck vedaccndsswertt ics

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001) ...........

Anza v. Steel Supply Corp., 126 S. Ct. 1991 (2006) .....

Ashcroft v. ACLU, 542 U.S. 656 (2004) 2.0... eee.

Bates v. State Bar, 433 U.S. 350 (1977) 2.0... eee

BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002) ......

Bennett v. Spear, 520 U.S. 154 (1997) ... 00.0... ee eee.

Cases—Continued: Page

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ......... 9, 28

Board of Regents of State Colls. v. Roth, 408 U.S. 564

GED weseseccveusneenseuensaussaeneneaeeeeee 41

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ........ 38

Bush v. Lucas, 462 U.S. 367 (1983) ............0eeeeee 31

City of Monterey v. Del Monte Dunes at Monterey,

eee 30

Correctional Servs. Corp. v. Malesko, 534 U.S. 61

SEE: sccuseeesucasdeusesess see 30, 31, 34, 36

DeLoach v. Bevers, 922 F.3d 618 (10th Cir. 1990),

cert. denied, 502 U.S. 814 (1991) .................. 38

Dolan v. City of Tigard, 512 U.S. 374 (1994) ..... 34, 41, 46

Evans v. United States, 504 U.S. 255 (1992) ........... 18

FE. Trotter, Inc. v. Watkins, 869 F.2d 1312 (9th Cir.

PEED vcsddaeeuneiscessk4uennsedusneeeee 27

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ......... 30

Hartman v. Moore, 1268S. Ct. 1695 (2006) ............ 37

Hooe v. United States, 218 U.S. 332 (1910) ............ 29

Hoyl v. Babbitt, 129 F.3d 1377 (10th Cir. 1997) ......... 4

Jones v. TVA, 948 F.2d 258 (6th Cir. 1991) ............ 36

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

GIG. « ibaedSeeekeesesesenceanee eee 41, 43

Kleppe v. New Mewxico, 426 U.S. 529 (1976)... 2.6... 22

Kreines v. United States, 33 F.3d 1105 (9th Cir. 1994),

cert. denied, 513 U.S. 1148 (1995) ................. 36

Kremer v. Chemical Constr. Corp., 456 U.S. 461

GOED ve eveeccccrectenéanscénacuchionesene 26, 47

Cases—Continued: Page

Leo Sheep Co. v. United States, 440 U.S. 668

EEE ee eee 2, 15, 46

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ..... 42

Lucas v. South Carolina Coastal Council, 505 U.S.

Mest pede eieecneeesccenesueesdaesx 41

Miller v. United States Dep't of Agric., 143 F.3d 1413

ee es ccc suceecdstvace 32

Moore v. Glickman, 113 F.3d 988 (9th Cir. 1997) ....... 32

NAACP vy. Button, 371 U.S. 415 (1963) ............... 37

Neagle, In re, 135 U.S. 1 (1890) 2.0... ccc ec e eee 26

Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th

Cir. 2005), cert. denied, 126 S. Ct. 1908 (2006) ....... 32

Nollan v. California Coastal Comm’n,

ee tekstit eckeesaecas 34, 46, 47

People v. Cuddihy, 271 N.Y.S. 450 (Gen. Sess. 1934),

aff'd, 277 N.Y.S. 960 (App. Div. 1935) .............. 19

People v. Ryan, 133 N.E. 572 (N.Y. 1921) ............. 20

People v. Weinseimer, 102 N.Y.S. 579 (App. Div.

1907), aff'd, 83 N.E. 1129 (N.Y. 1907)... 02.00.00... 20

Perry v. Sindermann, 408 U.S. 598 (1972) ............ 38

Pipkin v. United States Postal Serv., 951 F.2d 272

EE 36

Premachandra vy. Mitts, 753 F.2d 635 (8th Cir. 1985) ... 36

Preseault v. ICC, 494 U.S. 1 (1990) 2.00... 0.000008. 29, 43

Rakas v. Illinois, 439 U.S. 128 (1978)... 2... 4)

Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) ... 32

Ruckelshaus v. Monsanto Co., 467 U.S. 986

ee ee et ccs ccccces 41, 42

Vil

Cases—Continued: Page

Saul v. United States, 928 F.2d 829 (9th Cir.

BD. ndddadecuddeusddcswassecesedasdeseieies 36, 48

Scheidler v. National Org. for Women, lne.,

ee GREE. ign 460 6n6e cece une 19, 20, 23, 24, 26

Schweiker v. Chilicky, 487 U.S. 412 (1988) ......... 30,31

Sinclair v. Hawke, 314 F.3d 934 (8th Cir.

Dn siichedctuced biekabentdeeasndiins 17, 18, 27, 31

Sky Ad, Inc. v. McClure, 951 F.2d 146 (9th Cir. 1991),

cert. denied, 506 U.S. 816 (1992) ...............00.. 32

Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988) ..... 36

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

cert. denied, 454 U.S. 820(1981) .................. 20

United States v. Deaver, 14 F. 595 (W.D.N.C. 1882) .... 29

United States v. Enmons, 410 U.S. 396 (1973) ...... 19, 20

United States v. Fausto, 484 U.S. 439 (1988) .......... 36

l/nited States v. Gotti, 459 F.3d 296 (2d Cir. 2006) ..... 19

United States v. Green, 350 U.S. 415 (1956) ........... 20

United States v. Nardello, 393 U.S. 286 (1969) ......... 26

United States v. North Am. Transp. & Trading Co.,

SEED sn cncctedvecsucskandncusecesnes 29

United States v. Riverside Bayview Homes, Inc.,

es ED on ce Leah auabesseeses 42

United States v. Robbins, No. 97-CR-0092 (D. Wyo.

SER EE. Sons escenddsendcodeusnssceconsunse: 25

United States v. Utah Constr. & Mining Co.,

Se ED cc ntcceceenéssadekaueesdune 26, 47

University of Tenn. v. Elliott, 478 U.S. 788 (1986) .. 26,47

Utah Power & Light Co. v. United States,

PPE Gobuwideeceucdestdiadccadueusie 22

VIII

Cases—Continued: Page

Village of Schaumburg v. Citizens for a Better Env't,

RENE Ee oe ee ea. ea RO ne 38

Virginia v. Hicks, 539 U.S. 113 (2003) ................ 38

Volk v. Hobson, 866 F.2d 1398 (Fed. Cir.), cert.

denied, 490 U.S. 1092 (1989) ................ceeee: 36

Williamson County Reg Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985) ... 29, 30, 39, 42, 43

Wilson v. Layne, 526 U.S. 603 (1999) ...........0008.. 26

Constitution, statutes and regulations:

U.S. Const.:

Art. IV, § 2, Cl. 2 (Property Clause) ............. 3, 22

DI! sdevdtiiudddaatttaaeneiens 14, 37, 38, 39, 40

NS a ee 5 eee Me eG me 10, 28

DE sdiubctidddeseiceuesdaducdsecudan passim

Just Compensation Clause ............... passim

IED cancuedkbubiusdussakscceue 41, 43

Act of Nov. 26, 1997, Pub. L. No. 105-119, § 617, 111

Stat. 2519 (18 U.S.C. 3006A note) ................. 25

Administrative Procedure Act, 5 U.S.C. 701 et seg. .... 4,9

PEN hiGauaecrudeheca cease tuskaadebaeewius 35

PGE navtdindadeveadsueetmanddidsdeaacwaon Mi

eee Pe ee N 35

Equal Access to Justice Act, 28 U.S.C. 2412(d) ........ 36

Federal Land Policy and Management Act of 1976, 43

UIE nc veececcuecuceued seeuueadanedes 3

SS ED Sauukaceuudsccennsadounucnes es 3

Ss SE bduuéds esos uadunseicuienddenes 3

Statutes and regulations—Continued: Page

EE ER ES ee oe er rere 2,9

I ig ig i aa eae a aed 15

Racketeer Influenced and Corrupt Organizations Act,

SNEED. N ccusdecdscdescucededecsadsas 9

I i ed ela 15

EER RPE PE REET ry 15

I ia re ed eas 15

PP PD: ccceunnd cddducnaddnekuceaeuns 15

I i dd 15

Taylor Grazing Act, 43 U.S.C. 315 et seg. .............. 3

SEE chvecuciiuc nes cuueaseeeuR wenn 3

DRED cavcuuceiecalvuisuieseuesuaseseanas 3

EER acre ne aR MEE 29, 43

N.Y. Penal Law (Consol. 1909):

Dt s.teescinewige cate seeedt se denaeaechedenne 20

DT sabe aekal jcueiaEhudeeeneedmee seedeneulee 19

43 C.F.R.:

ection BITS OS Bie) GSE) .n cw ccccccccccccccccces 4, 45

Section 2800.0-2(b) (2004) 2.2... ccc ccc eee eee ene 4, 45

EEE dc uaduséucésccedscsoccese 4, 45

ED enn dacunnswaddinedesdenvenknwdsnens 4

ED cd dentiednendedsabsaws Oa 4

re oa 0s Se eeein waainee 4

add Cove ded eueekenauians 4

PEED coccduéscoschsidscessancedose 4,8

Miscellaneous: Page

4 Commissioners of the Code, Proposed Penal Code of

the State of New York (photo. reprint 1998) (1865) .. 20

11th Cir. Pattern Crim. Jury Instr. .................. 19

HD Ranch, IBLA No. 99-279 (May 20, 1999) .......... 34

Frank Robbins:

SP Rede BOO EUEEED cccccccccuscccccccces 4, 7,33

UU i ee ade ueus 24

Charles Ryden, 119 1.B.L.A. 277 (1991) .............05. 4

In the Supreme Court of the Anited States

No. 06-219

CHARLES WILKIRF, ET AL., PETITIONERS

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-26a) is

reported at 433 F.3d 755. An earlier opinion of the court of

appeals (Pet. App. 76a-84a) is reported at 300 F.3d 1208. The

opinion of the district court (Pet. App. 27a-48a) is unreported.

An earlier opinion of the district court (Pet, App. 49a-75a) is

reported at 252 F. Supp. 2d 1286.

JURISDICTION

The judgment of the court of appeals was entered on Jan-

uary 10, 2006. A petition for rehearing was denied on March

14, 2006 (Pet. App. 85a-86a). On June 5, 2006, Justice Breyer

extended the time within which to file a petition for a writ of

certiorari to and including July 12, 2006. On June 28, 2006,

Justice Breyer further extended the time to August 11, 2006,

and the petition was filed on that date. The petition for a writ

of certiorari was granted on December 1, 2006. The jurisdic-

tion of this Court rests on 28 U.S.C. 1254(1).

(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides, in relevant part:

* * *

nor shall private property be taken for public use,

without just compensation.

U.S. Const. Amend. V.

The Hobbs Act provides, in relevant part:

(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or com-

modity in commerce, by robbery or extortion or attempts

or conspires so to do, or commits or threatens physica!

violence to any person or property in furtherance of a plan

or purpose to do anything in violation of this section shal!

be fined under this title or imprisoned not more than

twenty years, or both.

(b) As used in this section—

* ee

(2) The term “extortion” means the obtaining of propert,

from another, with his consent, induced by wrongful use

of actual or threatened force, violence, or fear, or under

color of official right.

* kkk &

18 U.S.C. 1951.

STATEMENT

1. To this day, much of the American West resembles a

complex checkerboard of intermingled parcels of federal,

state, and private lands. See Leo Sheep Co. v. United States

440 U.S. 668 (1979). The management of those lands, along

with attendant resources such as wildlife, land values, grazing

allotments, and livestock, presents unique challenges for fed-

eral officials and depends on negotiation and cooperation be-

tween federal, state, and private landowners. Under its Prop-

erty Clause power, Congress has enacted numerous statutes

governing the use and management of federal lands. Pursu-

ant to those laws and implementing regulations, the federal

government has granted private landowners thousands of

rights-of-way and grazing permits to enable them to access

and use public lands for particular purposes. In turn, private

landowners have agreed through reciprocal rights-of-way and

other instruments to grant federal officials the access needed

over private lands to reach and manage public lands. Both the

federal government and private landowners alike benefit from

those arrangements. Indeed, given the interspersed nature

of lands, public as well as private land use in the West would

be severely impeded in many areas without such give and

take.

The Secretary of the Interior is authorized under 43

U.S.C. 1761(a), a provision of the Federal Land Policy and

Management Act of 1976 (FLPMA), 43 U.S.C. 1701 et seq., to

grant rights-of-way over federal lands. FLPMA requires the

Secretary to “take any action necessary to prevent unneces-

sary or undue degradation of the lands.” 43 U.S.C. 1732(b).

Similarly, under 43 U.S.C. 315, a provision of the Taylor Graz-

ing Act, 43 U.S.C. 315 et seq., the Secretary has the authority

to grant owners of land adjacent to grazing districts rights-of-

way over federal land in those districts. The Secretary has

the power to “do any and all things necessary” to accomplish

the purposes of the Act. 43 U.S.C. 315a.

The Bureau of Land Management (BLM), an agency

within the Department of the Interior, has provided that the

Secretary may grant rights-of-way to business entities,

among others, and “regulate, control and direct” the use of

those rights-of-way on public land to “[p]rotect the natural

resources associated with the public lands” and to “[p}revent

unnecessary or undue environmental damage to the lands and

resources.” 43 C.F.R. 2800.0-2(a) and (b) (2004). When it

determines it to be in the public interest, BLM may require

persons applying for a right-of-way over public land to give

the government an “equivalent right-of-way that is adequate

in duration and rights.” 43 C.F.R. 2801.1-2 (2004).'

If an applicant for a right-of-way refuses to grant BLM

a reciprocal nonexclusive easement, his application may

be denied. Charles Ryden, 119 1.B.L.A. 277, 279 (1991); see

Frank Robbins, 146 1.B.L.A. 213, 219 n.4 (1998) (regulation

authorizes BLM to “require that a road | right-of-way] appli-

cant grant an equivalent, reciprocal [right-of-way] to the

United States as a condition to receiving” a right-of-way un-

der FLPMA). BLM’s regulations likewise provide that the

agency may include in a grazing permit a “statement disclos-

ing the requirement that permittees or lessees shall provide

reasonable administrative access across private and leased

lands to the [BLM] for the orderly management and protec-

tion of the public lands.” 43 C.F.R. 4130.3-2(h). Because

BLM must often cross private lands to access public land,

BLM would not be able to carry out its statutory management

duties without such reciprocal rights.

BLM actions are subject to a comprehensive system of

administrative review, including review by the Interior Board

of Land Appeals (IBLA). IBLA decisions are subject to judi-

cial review under the Administrative Procedure Act (APA), 5

U.S.C. 701 et seg. See Hoyl v. Babbitt, 129 F.3d 1377, 1382

(10th Cir. 1997).

2. This case involves an expanse of land in Hot Springs

County, Wyoming, located near the foot of Washakie Needles

Peak and buttressed by the Shoshone National Forest to the

west and the Wind River Indian Reservation to the south. As

illustrated by the map reproduced on page 136 of the Joint

Appendix, the area consists of scores of intermingled parcels

' The regulations were altered in 2005, but analogous provisions are

currently set forth in, inter alia, 43 C.F.R. 2801.2, 2804.25(d)(3), and

2805. 1217).

of federal, state, and private lands and is divided up into vari-

ous grazing allotments managed by BLM. The area also has

significant natural resources, including wildlife such as elk,

mule deer, pronghorn antelope, prairie dog colonies, and sage

grouse, that BLM is responsible for managing along with

other federal officials.

A privately owned cattle ranch—the High Island Ranch—

runs for miles through the heart of this area, intersecting

federal and state lands, as well as other private lands, and

spanning several grazing allotments. In many places, it is not

possible to get from one part of the ranch to another without

crossing federal, state, or other private land. A dirt road

known as South Fork, Owl Creek Road (denoted as BLM 1510

on the map, J.A. 136) wanders generally westward from a

county road (County Road 29) several miles to the east along

the southern portion of the ranch. Along the way the road

crosses federal, state, and private land. The road is the only

access route for parts of the ranch as well as public lands in-

termingled with the ranch. J.A. 45-46.

The High Island Ranch is a working cattle ranch that also

has engaged in commercial operations including a guest ranch

offering cattle drives and a big game hunting outfit. Because

the ranch is interspersed with public lands and has used large

tracts of public lands as part of its commercial and private

ranching operations, a mutually beneficial legal relationship

developed between the government and the previous owner of

the ranch. BLM granted George Nelson, who owned the

ranch before 1994, a livestock grazing permit, a special recre-

ational use permit (SRP) enabling him to conduct guest activi-

ties including cattle drives and hunting on public lands, and a

right-of-way allowing him to use and perform maintenance on

South Fork, Owl Creek Road on a 53-acre portion of public

lands. See Pet. App. 28a-29a; J.A. 97-103. In exchange, Nel-

son agreed to various conditions on the use of public lands. In

addition, he granted the United States a reciprocal right-of-

way in the form of a nonexclusive easement to use and main-

tain the South Fork, Owl Creek Road on a 15.5-acre stretch of

the ranch’s land. J.A. 90-93.

Respondent acquired the High Island Ranch from George

Nelson in May 1994. Pet. App. 28a. While respondent sought

to continue to utilize the grazing permits, SRPs, and right-of-

way that BLM granted Nelson in order to conduct his com-

mercial and private ranching activities on public lands, re-

spondent wanted none of the reciprocal arrangements that

had accompanied those privileges. An issue quickly arose

over the right-of-way over South Fork, Owl Creek Road.

When Nelson acquired the right-of-way over the road on pub-

lic land, he signed a document granting the United States a

reciprocal right-of-way over the road on his land. But, appar-

ently because a corporate seal was missing, BLM returned

that document to Nelson. Before Nelson sent the document

to BLM with a corporate seal, he sold the ranch to respon-

dent, who recorded the deed. BLM determined that this re-

cording of the deed without the easement in favor of the gov-

ernment rendered the easement unenforceable. Jd. at 2a;

C.A. App. 48-49.

In February 1995, a BLM employee discussed with re-

spondent the possibility of receiving an assignment of Nel-

son’s right-of-way over federal lands, and in April 1995,

Charles Wilkie wrote to respondent explaining that such an

assignment was necessary if respondent intended to maintain

the road or engage in other than casual use of the road on

federal land. The letter confirmed that “a condition of the

right-of-way is the reciprocal grant of a non-exclusive ease-

ment to the United States for administrative access across

your deeded lands in the Rock Creek area.” The letter en-

closed a copy of the easement that Nelson had signed and

asked respondent to sign it. C.A. App. 30-39. Respondent did

not respond to the letter. On June 16, 1995, BLM issued an

interlocutory decision cancelling the right-of-way that Nelson

had obtained because respondent had not made the required

annual payment and had not signed a reciprocal non-exclusive

easement. /d. at 40-41. Respondent did not respond, and on

July 21, 1995, BLM issued a final decision cancelling the

right-of-way. Jd. at 42-43. Although this final decision was

subject to administrative review before the IBLA and judicial

review in district court, respondent did not seek any such

review. /d. at 49-50.

In July 1997, BLM issued respondent a “cease and desist”

notice, which alleged that respondent had “bladed” parts of

the road on public land without a right-of-way. C.A. App. 49.

“Blading” is a smoothing operation in which loose material is

pulled from the side of the road or material is used to fill sur-

face irregularities and restore the road crown. Under 43

C.F.R. 2801.3(a) (2004), the use of public lands requiring a

right-of-way without authorization is a trespass. In response,

respondent submitted an invoice “for emergency repairs to

South Fork Road in order to access private property—

$2250.00.” C.A. App. 49; id. at 44. BLM offered to settle the

trespass charges for $1617 and offered to entertain an appli-

cation for a right-of-way, stating explicitly that the reciprocal

easement required of respondent would simply allow “access

for federal employees in conjunction with their official duties;

it would not allow any other type of access.” Jd. at 45. Re-

spondent did not respond, and BLM issued a decision finding

that he had trespassed and owed BLM $1617. /d. at 48.

Respondent sought review before the IBLA, which upheld

the decision. The IBLA held that respondent had admitted

the blading when he sent his bill to BLM for the repair and

that he had “repeatedly failed to respond to BLM offers con-

cerning the existing [right-of-way], the filing of an application

for a new |right-of-way] and, thereafter, the settlement of the

trespass.” Robbins, 146 1.B.L.A. at 218. The IBLA also re-

jected respondent’s allegations that BLM was trying to

“blackmail” him into providing a reciprocal right-of-way, and

it held that “(t]he record effectively shows * * * intransi-

gence was the tactic of [respondent], not BLM.” /d. at 219.

Respondent did not seek judicial review of this decision.

Respondent also had disputes with BLM over his grazing

permit. Based on 43 C.F.R. 4130.3-2(h), the permit stated

that respondent was required to “provide reasonable adminis-

trative access across private and leased lands to the [BLM]

for the orderly management and protection of the public

lands.” C.A. App. 54. Respondent, however, insisted that

BLM employees obtain his advance written permission. The

IBLA found that “BLM is authorized reasonable administra-

tive access across [respondent’s] private and leased lands”

and that “[aldvance written permission from [respondent]

shall not be required.” /bid. The IBLA later ruled that “ad-

ministrative access is an implied condition of a grazing per-

mit” when such access is necessary for BLM to carry out its

statutory duties. /d. at 56; see id. at 61. The IBLA explicitly

rejected the argument that BLM’s administrative access over

the ranch constitutes a taking under the Fifth Amendment.

Id. at 62. Respondent did not seek judicial review of those

orders.

Respondent also had a dispute with BLM over his SRP.

Respondent had assumed Nelson’s SRP, which had a five-year

term, but after respondent had committed numerous viola-

tions of the SRP’s terms, BLM suspended the SRP in 1995

and reduced it to a one-year term, a form of probation. In

June 1999, BLM denied respondent’s application to renew the

SRP, citing the earlier suspension, the blading incident de-

scribed above, ten grazing trespass notices respondent had

received, some in conjunction with SRP activities, and his

noncompliance with his grazing permit and allotment manage-

ment plan on at least 20 occasions other than the trespasses.

C.A. App. 70-76. The IBLA upheld BLM’s denial of the re-

newal of the SRP, holding that “the entire record and the

pattern of violations represented by the repeated notices he

has received since receiving the first SRP in 1994 provide

more than a reasonable factual basis for BLM’s decision in

this case not to renew the permit.” /d. at 75. Respondent did

not seek judicial review of that order.

)

3. In August 1998, respondent brought an action against

petitioners under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and under

the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. 1961 ef seq., charging BLM employees with

seeking to extort a reciprocal easement from him. Petitioners

moved to dismiss for failure to state a claim and based on

qualified immunity. The district court granted that motion.

It dismissed the RICO claims on the ground that the plaintiff

had not sufficiently pleaded damages, and the Bivens claim on

the ground that the availability of judicial review under the

APA, 5 U.S.C. 701 et seqg., and the Federal Tort Claims Act

(FTCA), 28 U.S.C. 1346, precluded a Bivens cause of action in

this context. J.A. 33-40.

The court of appeals reversed and remanded. Pet. App.

7T6a-84a (Robbins /). First, it held that respondent had ade-

quately pleaded damages in support of his RICO claim. /d. at

78a-80a. Second, the court held that respondent’s Bivens

claim was precluded to the extent that it was based on final

agency action. However, the court further held that, because

the APA does not provide a remedy “for constitutional viola-

tions committed by individual federal employees unrelated to

final agency action,” respondent’s allegations of misconduct

“unrelated to any final agency action” are “properly within

the scope of a Bivens claim.” /d. at 8la-82a. The court also

rejected the argument that respondent’s Bivens claim was

“precluded by potential claims under the FTCA.” 7d. at 83a.

Following a remand, respondent filed a second amended

complaint, and petitioners moved to dismiss on the ground of

qualified immunity. The district court granted the motion in

part and denied it in part. Pet. App. 49a-75a (Robbins 17).

The court held that respondent had alleged violations of

clearly established law under the Hobbs Act, 18 U.S.C. 1951

(extortion), and state law. Pet. App. 60a-61a. The court also

held that respondent had alleged the violation of a clearly

established right not to be retaliated against for the exercise

of a Fifth Amendment right to exclude others from his prop-

erty. /d. at 72a-74a. But the court dismissed claims under

the Fourth Amendment for malicious prosecution, id. at

62a-67a, and under the Fifth Amendment for procedural and

substantive due process, id. at 67a-72a.

Limited discovery ensued. Petitioners then moved for

summary judgment based on qualified immunity. Respondent

also filed a third amended complaint, mostly reiterating the

allegations of the second amended complaint and adding peti-

tioner David L. Wallace as a defendant. The district court

again denied petitioners’ motion. Pet. App. 27a-48a (Robbins

/11). Based on its earlier decision, the court held that both

the law underlying the RICO claim and the constitutional

right at issue in the Bivens claim were clearly established and

that qualified immunity had to be denied. /d. at 33a-39a. The

court declined to reconsider its holding based on the materials

submitted on summary judgment. /d. at 39a-48a.

4. The court of appeals affirmed. Pet. App. la-26a.

The court began with respondent’s Bivens claim that peti-

tioners’ “conduct violated his right to be free from retaliation

for exercise of his Fifth Amendment right to exclude others

from his property.” Pet. App. 10a-lla. The court rejected

petitioners’ threshold contention that respondent’s Bivens

claim is completely precluded by the APA, pointing to its deci-

sion in the prior appeal in this case. /d. at 25a.

As to the merits of the Bivens claim, the court acknowl-

edged that “the government has not effected a taking in this

case,” but nonetheless held that respondent had pleaded a

violation of a clearly established Fifth Amendment right. Pet.

App. 18a. The court explained that the Fifth Amendment not

only protects a “right to exclude” the government from one’s

property by requiring just compensation, but “prevent|s] the

government from gaining an ownership interest in one’s prop-

erty outside the procedures of the Takings Clause.” /d. at

13a; see id. at 14a (“[Respondent] has a Fifth Amendment

right to prevent BLM from taking his property when BLM is

not exercising its eminent domain power.”). And, according

to the court, that “Fifth Amendment right” was clearly estab-

lished. /d. at 15a.

The court further held that the Fifth Amendment “right

to exclude” includes an anti-retaliation prohibition. The court

explained that, “[b]Jecause retaliation tends to chill citizens’

exercise of their Fifth Amendment right to exclude the gov-

ernment from private property, the Fifth Amendment prohib-

its such retaliation as a means of ensuring that the right is

meaningful.” Pet. App. 15a. Although the court recognized

that there was no precedent supporting a right against retali-

ation for the exercise of a Fifth Amendment right, the court

pointed to a Tenth Circuit retaliation case in the First

Amendment context and held that a plaintiff need only show

“that the right retaliated against be clearly established.” Jd.

at l6a. The court, therefore, held that petitioners were not

entitled to qualified immunity on the Bivens claim.

The court also denied qualified immunity on the RICO

claim. The court rejected petitioners’ argument that the

predicate act for extortion under color of official right under

the Hobbs Act required a showing that the alleged conduct

was independently wrongful. Although the court did not

question that petitioners had regulatory authority to take

each of the allegedly retaliatory acts, it concluded that “if

|petitioners| engaged in lawful actions with an intent to extort

a right-of-way from [respondent] rather than with an intent

to merely carry out their regulatory duties, their conduct is

actionable under RICO.” Pet. App. 18a. The court also con-

cluded that respondent had stated a RICO predicate act of

extortion under Wyoming law. /d. at 24a. The court further

held that, viewed at the “proper level of generality,” respon-

dent had alleged a violation of “clearly established statutory

rights.” /d. at 2la-22a.

SUMMARY OF ARGUMENT

The court of appeals’ decision in this case subjects federal

officials to damages actions and threat of personal liability

under RICO and Bivens for carrying out their regulatory

duties to manage public lands. That decision represents an

unprecedented expansion of RICO, Bivens, and the Fifth

Amendment, contravenes settled qualified immunity princi-

ples, and should be reversed by this Court.

I. Petitioners did not violate RICO or any clearly estab-

lished right against extortion in attempting, through the exer-

cise of their lawful regulatory authority, to secure a reciprocal

easement for the United States in exchange for the right-of-

way that BLM granted respondent over public lands. RICO

—an organized crime statute—was never designed to reach

federal officials acting to further legitimate governmental

aims. In addition, to establish the predicate offense of extor-

tion, a plaintiff must show both that government officials act

with a “wrongful” intent, i.e., that they seek something of

value that they are not due in exchange for official conduct,

and that the officials actually “obtain” something of value for

the private benefit of themselves or another. Both of those

traditional elements of the common law offense of extortion

are absent here.

Petitioners did not take any of the alleged actions based

on a “wrongful” intent to obtain property, and, more to the

point, the court of appeals assumed that all of petitioners’

actions were within their regulatory authority. Moreover, in

seeking a reciprocal easement, petitioners did not seek any-

thing that was not “due” to them or BLM. To the contrary, it

is well-established that BLM may require persons who apply

for rights-of-way over public land to agree to grant the gov-

ernment a reciprocal easement over private land. Likewise,

petitioners did not “obtain” any property through their offi-

cial conduct for the private gain of themselves or another.

They sought the reciprocal easement at issue for “the

UNITED STATES OF AMERICA, and its assigns.” J.A. 86.

Regulators who act within their lawful authority and seek

to obtain property on behalf of the United States are neither

racketeers nor extortionists. There are numerous checks in

place to deter and prevent overzealous regulation, including

the APA. But Congress never intended to subject aggressive

regulators to the threat of personal liability and treble dam-

ages under RICO. The court of appeals’ decision extending

RICO to such conduct not only represents a radical extension

of RICO, but threatens to chill government officials in a broad

range of regulatory contexts from engaging in appropriate

and vital regulatory actions, including the negotiation of re-

ciprocal rights to facilitate access to and management of the

millions of acres of public lands in the West that are intermin-

gled with private lands.

I]. Respondent’s unprecedented Bivens claim based on

the alleged violation of his Fifth Amendment “right to ex-

clude” the government from his property fares no better. As

a threshold matter, this Court has repeatedly refused to ex-

tend the constitutional cause of action inferred in Bivens to

new contexts and there is no reason to reverse course here.

Indeed, claims—like respondent’s—grounded on the Fifth

Amendment’s Just Compensation Clause are fundamentally

incompatible with Bivens because that Clause itself specifies

a money remedy, 7.e., “just compensation,” and for nearly 200

years before the Bivens decision was handed down Congress

created specific mechanisms for dealing with takings and just

compensation claims that did not require the courts to infer

a direct cause of action in the courts.

Moreover, the APA’s comprehensive scheme for challeng-

ing agency action in itself precludes a Bivens action over the

types of agency actions at issue, which respondent had an

opportunity to challenge—and in numerous respects did

challenge—-before the agency with a right of APA review in

the courts. Although the APA does not permit challenges to

non-final agency action, there is no basis to infer a constitu-

tional Bivens action to cover actions that Congress deemed to

be too premature or insignificant to warrant a judicial remedy

under the APA. A Bivens action was designed to provide a

remedy for a victim for whom it was damages or nothing; it is

not a gap-filler for perceived holes in the APA.

In any event, even if this Court were to extend Bivens to

this new context, the court of appeals erred in holding that

the Fifth Amendment embodies an anti-retaliation right,

much less that such a Fifth Amendment right was clearly

established. The constitutional retaliation doctrine has thus

far been limited solely to the First Amendment context. That

squares with the special nature of expressive activity and the

unique concerns that this Court has identified about chilling

such activity. Those concerns are absent or greatly reduced

in the Fifth Amendment context because the textual guaran-

tee of “just compensation” itself provides a powerful incentive

for vindicating Fifth Amendment rights, and the Fifth

Amendment tolerates a broad degree of government interfer-

ence that is wholly alien to the First Amendment. While the

Fifth Amendment does not confer an anti-retaliation right,

the First Amendment protects individuals who petition the

government for redress of alleged Fifth Amendment viola-

tions. No such First Amendment claim, however, is presented

here.

Furthermore, respondent has not alleged the violation of

any substantive right protected by the Fifth Amendment’s

Just Compensation Clause. Respondent has made clear that

he is not alleging that any of his property rights have been

taken by the government. Instead, he claims that he is enti-

tled to enjoy a right-of-way over public land (along with other

privileges such as grazing rights and special use permits for

the use of public land) while refusing to grant the government

a reciprocal easement over his own land. This Court has

never held that the Fifth Amendment erects a constitutional

barrier to the sort of give and take that is customary between

neighboring landowners. Indeed, in Leo Sheep Co. v. United

States, 440 U.S. 668, 681 (1979), the Court specifically envi-

sioned that “negotiation” and “reciprocity considerations”

would be utilized to ameliorate disputes concerning interlock-

ing parcels of public and private lands. Nothing in the Fifth

Amendment or this Court’s cases confers upon respondent the

right to use public lands for his private benefit while denying

BLM the reciprocal right-of-way it seeks to manage and pro-

tect interlocking public lands.

ARGUMENT

]. THE COURT OF APPEALS ERRED IN REJECTING PETI-

TIONERS’ QUALIFIED IMMUNITY DEFENSE TO RE-

SPONDENT’S RICO CLAIM

RICO provides civil remedies for “[a]ny person injured in

his business or property by reason of a violation of [18 U.S.C.]

1962.” 18 U.S.C. 1964(c). Section 1962 in turn makes it un-

lawful, inter alia, for “any person employed by or associated

with any enterprise engaged in, or the activities of which af-

fect, interstate or foreign commerce, to conduct or partici-

pate, directly or indirectly, in the conduct of such enterprise's

affairs through a pattern of racketeering activity.” 18 U.S.C.

1962(c). Racketeering activity includes extortion as defined

under the Hobbs Act, 18 U.S.C. 1951(b)(2), and “any act or

threat involving * * * extortion * * *, which is chargeable

under State law and punishable by imprisonment for more

than one year.” 18 U.S.C. 1961(1)(A) and (B).

The court of appeals held that a RICO predicate act of

extortion under the Hobbs Act or state law may be shown by

allegations that government officials, whose actions were au-

thorized by law, had an extortionate intent to obtain property

for the sole benefit of the government and the public, with no

allegation that they sought any private gain for themselves

or another. That holding expands RICO to an entirely new

context and disregards essential requirements of the predi-

cate offense of extortion. Aggressive regulators are already

subject to the check of review under the APA or the statute

authorizing agency action, as well as by government ethics

requirements, inspectors general, and other protections

against government misconduct. The enormous threat of

personal RICO liability was never designed to check overzea\-

ous regulation in itself. Thrusting RICO into this context

would chill government officials in a broad range of regula-

tory contexts from engaging in appropriate and vital regula-

tory actions.

A. Government Officials Do Not Become Racketeers Or

Extortionists Merely By Taking Overzealous Regulatory

Actions

The court of appeals’ RICO decision underscores the

growing concern that civil RICO has evolved far beyond its

animating concern—combating organized crime. See Anza

Ideal Steel Supply Corp., 126 8. Ct. 1991, 2004 & n.7 (2006)

(Thomas, J., concurring in part and dissenting in part). What-

ever the outer boundaries of RICO outside the organized-

crime context, there is no evidence that the Congress that

enacted RICO sought to hamstring the ability of the federa

government to regulate by subjecting individual federal!

officers—even overzealous regulators—to the threat of treble

damages and personal liability for acting within their lawtu.

regulatory duties in order to advance the legitimate interests

of the government, as opposed to their own personal interests

Moreover, even apart from the limits of the RICO cause ©

action itself, the predicate act of extortion has never been

available for the type of regulatory conduct at issue in this

case.

The predicate act of extortion under color of official right

addresses the classic situation of abuse of public office for

private gain. It addresses the corrupt public official, not the

overzealous regulator. An elaborate web of administrative

law is addressed to the latter problem, but it is not the proper

target of the criminal law or civil RICO liability. Where gov-

ernment officials acting pursuant to their authority act unrea-

sonably or exceed legal limits in seeking a benefit for the gov-

ernment or the public, any individual harmed by their conduct

may seek to block those actions in administrative proceedings

or in court under the APA or other statutory review mecha-

nisms. But they may not hold those officials personally liable

for treble damages under RICO. RICO liability is far too

blunt an instrument to be used as a check on administrative

overreaching, and it was never designed to do so. Fear, vio-

lence, and corruption are the trademarks of the prototypical

extortionist or racketeer, not due process, elaborate proce-

dural protections, and the right to judicial review.”

It is not surprising, therefore, that the one court of ap-

peals that has addressed the application of RICO to a claim of

overzealous regulation found such an application to be “ludi-

crous on its face.” Sinclair v. Hawke, 314 F.3d 934, 943 (8th

Cir. 2003). In Sinclair, the Office of the Comptroller of the

Currency took increasingly severe actions against a bank,

eventually threatening to issue a safety and soundness order

that would have made it difficult for the bank to undertake

the kind of lending it planned to engage in and later issuing a

notice of charges against the bank. The Eighth Circuit char-

acterized the question before it as “whether Congress has

authorized wide-ranging judicial review of regulators’ motives

in personal damage actions {under RICO] that might have a

chilling effect on their willingness to aggressively” carry out

their regulatory functions. /d. at 939. The court rejected the

° In this case, resr ondent blocked the government’s request for a

reciprocal easement by simply refusing to agree to it. Respondent also

had the right to administrative and judicial review of BLM’s decision to

cancel the right-of-way the ranch had obtained under previous

ownership, but he did not exercise that right. He did seek administra-

tive (but not judicial) review of other actions by the government and

raised the “blackmail” (7.e., extortion) argument, unsuccessfully, before

the IBLA. See Part IL.A, infra.

bank’s RICO claim, holding that “federal employees who take

regulatory action consistent with their statutory powers [do

not] engage in a ‘pattern of racketeering activity’ if those ac-

tions are adverse” to a particular business. Jd. at 943. In

other words, the court declared, “regulators do not become

racketeers by acting like aggressive regulators.” /d. at 944.

By holding otherwise, the court of appeals below has ex-

posed BLM and Forest Service officials like petitioners who

regulate intermingled public lands; bank regulators like the

defendants in Sinclair; and potentially countless other gov-

ernment officials who negotiate with private parties on behalf

of the government to extortion charges under RICO, along

with the prospect of personal liability and treble damages, for

taking tough regulatory actions or driving hard bargains,

even if the officials have no personal interest in the property

they seek on behalf of the government. There are many rea-

sons to discourage overzealous regulatory behavior and, ac-

cordingly, there are many statutory and regulatory checks on

such conduct (including administrative and judicial review

under the APA), but nothing in law or logic supports the con-

clusion that Congress sought to capture—and, indeed,

criminalize—such conduct under RICO.

B. Extortion Requires Showing Both That Government

Officials Acted With “Wrongful” Intent And That They

“Obtained” A Private Benefit For Themselves Or Others

1. Extortion under color of official right requires a show-

ing that “a public official has obtained a payment to which he

was not entitled, knowing that the payment was made in re-

turn for official acts.” Evans v. United States, 504 U.S. 255,

268 (1992). A distinguishing feature of extortion, therefore,

is the conditioning of an official act on private gain, and it is

precisely the taking of property “not due” to the individual

official in exchange for official conduct that renders the indi-

vidual officer’s action “wrongful.” See id. at 260 n.4

(“Blackstone described extortion as ‘an abuse of public jus-

tice, which consists in an officer’s unlawfully taking, by colour

of his office, from any man, any money or thing of value, that

is not due to him, or more than is due, or before it is due.’ 4 W.

Blackstone, Commentaries *141.”); Scheidler v. National Org.

for Women, Inc., 537 U.S. 393, 402 (2003) (“At common law,

extortion was a property offense committed by a public offi-

cial who took ‘any money or thing of value’ that was not due

to him under the pretense that he was entitled to such prop-

erty by virtue of his office.”) (emphasis added). Where a

“wrongful” or extortionate intent is lacking, government offi-

cials may still be guilty of overreaching or otherwise acting

unreasonably or unlawfully, but they are not guilty of extor-

tion.”

2. Another critical difference between an overzealous

regulator and an extortionist is that an extortionist must actu-

ally “obtain” the victim’s property for himself or another pri-

vate party. Scheidler, 537 U.S. at 404; see United States v.

Gott?, 459 F 3d 296, 324-325 (2d Cir. 2006) (holding that extor-

tionist must “obtain the right for himself, rather than merely

tedeprive the victim of that right”). Both of the sources of

law that Congress used in drafting the Hobbs Act—the Penal

Code of New York and the Field Code—defined extortion as

~ The requirement that the government official act with a “wrongful”

or extortionate intent is well established. One of the New York statutes

upon which the Hobbs Act was modeled, for example, provided that an

individual committed extortion “under color of official authority” only

if he acted “unlawfully,” as well as “maliciously,” in seizing or injuring

another’s property. N.Y. Penal Law § 854 (Consol. 1909). See, e.g.,

United States v. Enmons, 410 U.S. 396, 406 n.16 (1973) (“extortion

requires an intent ‘to obtain that which in justice and equity the party

is not entitled to receive’”) (quoting People v. Cuddihy, 271 N.Y.S. 450,

456 (Gen. Sess. 1934)); 11th Cir. Pattern Crim. Jury Instr., Offense

Instr. 66.2 (“Extortion ‘under color of official right’ is the wrongful

taking or receipt by a public officer of property not due to the officer

knowing that the payment or property was taken or received in return

for {performing]| withholding] official acts. The term ‘wrongful’ means

to obtain property unfairly and unjustly by one having no lawful claim

to it.”).

“the obtaining of property from another, with his consent,

induced by a wrongful use of force or fear, or under color of

official right.” Scheidler, 537 U.S. at 403 (citing 4 Commis-

sioners of the Code, Proposed Penal Code of the State of New

York § 613 (photo. reprint 1998) (1865) (Field Code); N.Y.

Penal Law § 850 (Consol. 1909)) (emphasis added). The Field

Code expressly described extortion, along with three other

property crimes—robbery, larceny, and embezzlement—as

involving “the criminal acquisition of * * * property.” Field

Code § 584 note, at 210. And “New York case law before the

enactment of the Hobbs Act demonstrates that this ‘obtaining

of property’ requirement included both a deprivation and ac-

quisition of property.” Scheidler, 537 U.S. at 403 (emphasis

added) (citing People v. Ryan, 133 N.E. 572, 573 (N.Y. 1921);

People v. Weinseimer, 102 N.Y.S. 579, 588 (App. Div.) (noting

that in an extortion prosecution, the issue that must be de-

cided is whether the accused “receive|d] [money] from the

complainant”), aff’d, 83 N.E. 1129 (N.Y. 1907)). Thus, as this

Court reiterated in Scheidler, “[e]xtortion under the Hobbs

Act requires a ‘“wrongful” taking of . . . property.’” 537

U.S. at 404 (quoting United States v. Enmons, 410 U.S. 396,

400 (1973)) (emphasis added in Scheidler).

The case law does not always require that the official him-

self benefit from the extortion; there may be extortion if pay-

ments are made to a third party at the official’s direction. Cf.

United States v. Green, 350 U.S. 415, 420 (1956) (extortion by

union through threats of force) (“extortion as defined in the

statute in no way depends upon having a direct benefit con-

ferred on the person who obtains the property”); United

States v. Clemente, 640 F.2d 1069, 1079-1080 (2d Cir.) (aiding

payment of kickbacks to another), cert. denied, 454 U.S. 820

(1981). But the gravamen of extortion under color of official

right historically has been and remains the abuse of public

office for private gain. See United States v. Deaver, 14 F.

595, 597 (W.D.N.C. 1882) (explaining that, under the “techni-

cal meaning |of extortion] in the common law, * * * [t]he

officer must unlawfully and corruptly receive such money or

article of value for his own benefit or advantage”).

C. Petitioners Did Not Act With A “Wrongful” Or Extor-

Lionate Intent And Did Not “Obtain” Any Property For

The Private Benefit Of Themselves Or Others

1. Petitioners did not take any action based on a “wrong-

ful” intent to obtain property not due to them in exchange for

official actions. Indeed, the court of appeals assumed that

petitioners’ actions were within their regulatory authority.

Pet. App. 17a-18a (“Although Defendants do not enumerate

specific regulatory provisions permitting each of their actions,

the regulatory authority may exist.”). But it nevertheless

held that the allegation of an intent to “extort” made their

conduct actionable. /d. at 18a (If petitioners “engaged in

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

[respondent] rather than with an intent to merely carry out

their regulatory duties, their conduct is actionable under

RICO.”). That was error. Where, as here, government offi-

cials act within their regulatory authority—as the court of

appeals expressly assumed—and seek to benefit only the gov-

ernment and the public, they act precisely how government

officials are expected to act, and there is nothing remotely

“wrongful” or extortionist about their actions or intent.

That is particularly true in the context of this case, where,

as authorized by regulation, the government sought to obtain

reciprocal treatment of interlocking parcels of land. Petition-

ers did not seek anything that was “not due” to the govern-

ment. As discussed above, it is well-established that BLM

may require persons applying for a right-of-way over public

land to agree to give the government a reciprocal easement

over private land, and that, where private individuals refuse

to grant such reciprocal rights, the government may deny

them a right-of-way over public land. See pp. 3-7, supra.

Respondent has never directly challenged the lawfulness of

that common-sense regulatory regime in this litigation. In-

stead, his claim is predicated on the extravagant notion that

it was extortionate for petitioners even to seek reciprocity.

The government, no less than a typical property owner,

may seek through lawful means to encourage a neighboring

property owner to agree to a reciprocal property right. The

government may have more means at its disposal in negotiat-

ing such an arrangement than the typical private property

owner, and that may justify a legislature giving the private

property owner greater recourse against the government to

avoid overreaching, such as the availability of APA review.

But there is no basis for converting a legitimate effort by gov-

ernment officials to obtain reciprocal property rights for the

benefit of the public into RICO extortion or, as discussed in

Part B, infra, a Bivens claim.*

2. Nor did petitioners “ebtain” anything of value through

their regulatory actions either for their private benefit or the

benefit of another. There has never been an allegation in this

case that any individual sought or received a benefit as a re-

sult of petitioners’ administrative actions, and no individual

gained or sought to gain any control over respondent’s prop-

erty. Nor could such an allegation have been made. The re-

ciprocal easement, if granted, would have benefitted only “the

* Of course, when it comes to managing public lands, the federal gov-

ernment does stand in different shoes than the typical property owner

in an important respect. As this Court has held, the Property Clause

gives the federal government broad power over public lands, including

the power “to control their occupancy and use, to protect them from

trespass and injury and to prescribe conditions upon which others may

obtain rights in them.” Kleppe v. New Merico, 426 U.S. 529, 540 (1976)

(quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405

(1917)). Moreover, the government has a duty to manage and protect

the Nation’s public lands. The facts that this case arises over a dispute

involving the management of public lands and that respondent essen-

tially claims a right of access to public lands without having to agree to

traditional conditions placed on their use therefore only bolsters the

legitimacy of petitioners’ actions.

UNITED STATES OF AMERICA, and its assigns,” not peti-

tioners or any other individual. J.A. 86.

Petitioners, therefore, are even further removed from the

plain terms and purposes of RICO and the Hobbs Act than

the petitioners in Scheidler, who the Court recognized person-

ally exercised some degree of control over the abortion clinic’s

business as a result of their illegal and violent acts, even if

they did not “obtain” property within the meaning of the

Hobbs Act. See 537 U.S. at 404-406 (discussing distinction

between extortion and “coercion,” a separate common-law

offense). Thus, the Court explained that the petitioners in

that case “may have deprived or sought to deprive respon-

dents of their alleged property right of exclusive coctrol of

their business assets, but they did not acquire any such prop-

erty” because they “neither pursued nor received ‘something

of value from’ respondents that they could exercise, transfer,

or sell.” /d. at 405 (citation omitted). While this case may

concern a more tangible property interest than the interest

involved in Scheidler, there is not even an allegation that peti-

tioners here—government officials acting within the scope of

their regulatory authority to protect and further the interests

of the government and the public—pursued or received some-

thing of value from respondent that they themselves “could

exercise, transfer, or sell.” The only thing of value underlying

respondent s extortion claim is a reciprocal easement for “the

UNITED STATES OF AMERICA, and its assigns.” J.A. 86.

At no point could petitioners, either individually or collec-

tively, have exercised, transferred, or sold the United States’

easement.’

* In Scheidler, the Court refused to replace the Hobbs Act’s

requirement “that property must be obtained from another * * * with

the notion that merely interfering with or depriving someone of

property is sufficient to constitute extortion.” 537 U.S. at 405, Thus,

the Court concluded that there was “no basis” to find that the petition-

ers committed extortion, even though there was “no dispute * * * that

petitioners interfered with, disrupted, and in some instances completely

D. The Regulatory Actions At Issue Cannot Support A

Claim Of Extortion In Any Event

The specific regulatory actions respondent alleges do not

support his claim of extortion for additional reasons. He al-

leges (Br. in Opp. 10-11) that government employees tres-

passed on his land, but trespass is not in its nature extortion-

ate. Moreover, what underlies his claims of trespass by BLM

officials is really his disagreement with formal IBLA adjudi-

cations concerning certain terms in grazing and special recre-

ation permits granting BLM rights to administrative access

over respondent’s land to inspect interlocking parcels of pub-

lic land and ensure proper compliance with the limitations

contained in the permits. See Frank Robbins, 154 1.B.L.A.

93, 95-96 (2000) (describing, inter alia, respondent’s repeated

efforts, in direct violation of IBLA orders, to interfere with

BLM’s management and protection of interspersed public

lands by filing notices of trespass against BLM employees

with the local sheriff); see also C.A. App. 61 (noting respon-

dent’s continued and mistaken assertion that authorized ad-

ministrative access over respondent’s land to reach interlock-

ing parcels of public lands without prior written consent con-

stituted trespass). BLM’s right to such administrative access

was established over respondent’s objections through proper

deprived respondents of their ability to exercise their property rights.”

Id. at 404, 409. Such interference, the Court held, might be covered by

the “separate crime of coercion,” but because the “petitioners did not

‘obtain’ respondents’ property,” they could not be guilty of extortion.

Id. at 405. The RICO extortion claim in this case fails for the same

reasons. Indeed, respondent’s action is premised on the fact that the

government has nof taken his property, and instead that ali of the “ac-

tions [at issue| were taken as part of an ongoing scheme to coerce | re-

spondent| to grant the BLM an easement.” J.A. 76 (emphasis added);

see J.A. 77. Thus, even if it were true that petitioners “interfered with,

disrupted, and in some instances completely deprived respondent | of

[his] ability to exercise [his] property rights,” under Scheidler there

would be “no basis” upon which to find extortion. 537 U.S. at 404, 409.

administrative proceedings, and respondent declined to in-

voke his APA right to challenge the results of those proceed-

ings in court.

Respondent also alleges (Br. in Opp. 10-11) that petition-

ers caused a false criminal charge to be filed against him. But

his malicious prosecution claim was resolved against him by

the district court, see Pet. App. 62a-67a, and he has not chal-

lenged that holding on appeal. Moreover, after respondent

was acquitted on the criminal charge at issue, he sought attor-

ney’s fees on the ground that the government’s position was

“vexatious, frivolous, or in bad faith,” Act of Nov. 26, 1997,

Pub. L. No. 105-119, § 617, 111 Stat. 2519 (18 U.S.C. 3006A

note). The district court rejected his claim, finding that his

allegations of bad faith and improper motive “obviously do not

meet the most liberal reading of the requirements for recov-

ery” under the statute. United States v. Robbins, No. 97-CR-

0092, slip op. at 9 (D. Wyo. Apr. 8, 1998) (order denying appli-

cation for attorney’s fees and costs). The court further held

that respondent “simply failed to make any showing that the

Untied States’ position was without color or was baseless, was

asserted to harass |respondent|], or was asserted for any other

improper or malicious purpose.” /d. at 13. Accordingly, re-

spondent’s claim of false criminal charges could not support

his extortion claim either.

The central harm that respondent alleges in his RICO and

Bivens claims stems from BLM’s administrative decisions to

cancel his right-of-way on interlocking government lands and

his grazing and special use permits on government land. The

fundamental premise of this action is that petitioners took

those regulatory actions to coerce respondent into granting

the government a reciprocal easement on his land. See J.A.

76 (Complaint). But it is too late for respondent to allege in

this action that the government improperly cancelled his ease-

ment and special use and grazing permits. If, as respondent

alleges, those actions were taken without authority or were

otherwise illegal, he could have challenged them through tra-

ditional administrative and judicial avenues when the actions

were taken. Having either failed in or passed on his chal-

lenges to the very regulatory actions at issue here through

appropriate and timely administrative and judicial means, he

cannot now use those actions as the basis for his RICO and

Bivens claims. See, e.g., United States v. Utah Constr. &

Mining Co., 384 U.S. 394, 421 (1966) (applying res judicata

principles to issues litigated in federal administrative pro-

ceedings); accord Kremer v. Chemical Constr. Corp., 456 U.S.

461, 484-485 n.26 (1982); University of Tenn. v. Elliott, 478

U.S. 788, 797-798 (1986); see also Part I1.A., infra.*

E. At A Minimum, Petitioners Did Not Violate Any Clearly

Established RICO Right

For the foregoing reasons, petitioners did not violate re-

spondent’s rights under RICO. But even if this Court dis-

agrees, petitioners are still entitled to qualified immunity

because, at a minimum, they did not violate any clearly estab-

lished rights. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

A right is clearly established only if “in the light of preexist-

ing law the unlawfulness [is] apparent.” Wilson v. Layne, 526

U.S. 603, 615 (1999) (citation omitted). That is, “{t]he rele-

vant, dispositive inquiry in determining whether a right is

’ Respondent’s allegation that petitioners also violated Wyoming's

extortion law adds nothing material to the RICO analysis. As the court

of appeals recognized, the Wyoming offense could constitute a predicate

act for RICO purposes only to the extent that it encompasses the

generic offense of extortion, which is the same offense contained in the

Hobbs Act. Pet. App. 24a; see United States v. Nardello, 393 U.S. 286,

290 (1969) (holding that a state offense cannot qualify as a predicate act

unless it is capable of being “generically classified as extortionate”);

Scheidler, 537 U.S. at 409-410 (same). Thus, for RICO purposes, any

differences between the Hobbs Act and Wyoming’s extortion statute

are irrelevant, and the absence of any wrongful intent or effort by

petitioners to seek private gain forecloses any RICO extortion claim.

Moreover, given that petitioners acted at all times pursuant to their

federal regulatory authority, they could not be charged for a state law

extortion offense in any event. See /n re Neagle, 135 U.S. 1, 75 (1890).

clearly established is whether it would be clear to a reason-

able officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202 (emphasis added). Re-

spondent cannot come close to that threshold. No other court

has held that land management officials may be held liable

under RICO for seeking to obtain a reciprocal right-of-way on

behalf of the government, and, as noted, the one court of ap-

peals to have addressed the application of RICO to a claim of

overzealous regulation found such an application to be “ludi-

crous on its face.” Sinclair, 314 F.3d at 943.

Accordingly, petitioners had no reason to believe that they

were violating RICO or any clearly established right against

extortion in attempting to obtain a reciprocal easement for

the United States through the exercise of their lawful regula-

tory authority. To the contrary, they were acting consistent

with the well established statutory and regulatory guidelines

for managing public lands. See pp. 3-4, supra.

Ii. THE COURT OF APPEALS ERRED IN REJECTING PETI-

TIONERS’ QUALIFIED IMMUNITY DEFENSE TO RE-

SPONDENT’S BIVENS CLAIM

A. The Fifth Amendment, Tucker Act, And APA Preclude

A Bivens Cause Of Action In This Context

Respondent’s Bivens claim under the Fifth Amendment is

precluded by the availability of judicial review under the APA

and the Tucker Act, and by the nature of the Fifth Amend-

ment right itself. At the very least, there are powerful rea-

sons counseling hesitation in fashioning such a remedy. In

the nearly 40 years since Bivens was decided, there is no pre-

cedent permitting a Bivens action against individual govern-

ment employees for a violation of the Fifth Amendment'’s Just

Compensation Clause. Indeed, only one circuit court has even

been willing to assume arguendo that such an action was

available. F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314

(9th Cir. 1989) (“Although we are unaware of any case extend-

ing Bivens to the fifth amendment’s takings clause, we will

assume without deciding that a Bivens action is also available

under that constitutional provision.”). The complete absence

of Just Compensation/Bivens claims in the last 40 years re-

flects the reality that the Just Compensation Clause uniquely

spells out the need for reimbursement and that Congress

provided alternative mechanisms to provide just compensa-

tion for nearly 200 years before Bivens was decided. There

has never been any need for the courts to create a judicial

remedy in this context. Moreover, even aside from the mis-

match between the Fifth Amendment’s just compensation

right and the Bivens remedy, the availability of APA review

precludes respondent’s Bivens action in its entirety. A Bivens

remedy is not available to fill perceived gaps in the APA; this

Court has reserved the step of inferring a cause of action for

circumstances in which it was damages or nothing. Because

respondent’s novel Bivens action is precluded in its entirety,

it must be dismissed.

I. A Bivens action is inconsistent with claims under the

Fifth Amendment's Just Compensation Clause

Bivens is fundamentally ill-suited for claims, like respon-

dent’s, founded on the Just Compensation Clause of the Fifth

Amendment.’ In Bivens, the Court inferred a cause of action

against federal officers for money damages for violations of

the Fourth Amendment. In doing so, the Court observed that

“the Fourth Amendment does not in so many words provide

for its enforcement by an award of money damages for conse-

quences of its violation.” 403 U.S. at 396. Unique among the

* Respondent's complaint grounds his Bivens claim in the “Fifth

Amendment * * * ‘right to exclude others from private property.”’

J.A. 78. That right must derive from state law, not the Just Compensa-

tion Clause, which simply requires the payment of just compensation

as a condition on the lawful acquisition of property by the federal

government. As discussed below, however, the Fifth Amendment dues

not protect against the alleged wrongs in this case.

Bill of Rights, however, the Fifth Amendment’s Just Compen-

sation Clause explicitly specifies a payment of money (or its

equivalent)—i.e., “just compensation”—as a condition that

must be satisfied for a taking of property by the government

to be lawful. Accordingly, for over 100 years before a dam-

ages remedy was inferred by this Court in Bivens, Congress

has provided specific mechanisms to effectuate the constitu-

tional guarantee of just compensation. As a general matter,

the Tucker Act, 28 U.S.C. 1491, affords a forum for obtaining

that compensation. See Williamson County Reg Planning

Comm’n v. Hamilton Bank, 473 U.S. 172, 195 (1985)

(“|T]aking claims against the Federal Government are prema-

ture until the property owner has availed itself of the process

provided by the Tucker Act, 28 U.S.C. § 1491.”); accord

Preseault v. ICC, 494 U.S. 1, 11 (1990). There is no call for

supplanting those congressionally sanctioned mechanisms

with a judicially created cause of action for damages at this

stage.

A damages remedy against individual federal officials,

moreover, is fundamentally inconsistent with the nature of the

Fifth Amendment right to just sompensation, which this

Court has repeatedly held is a right “hat is owed by (and can

be violated only by) the government itself, not by federal offi-

cials in their individual capacity. See, ¢.g., Hooe v. United

States, 218 U.S. 322, 335-336 (1910) (“The constitutional prohi-

bition against taking private property for public use without

just compensation is directed against the Government, and

not against individual or public officers proceeding without

the authority of legislative enactment. The taking of private

property by an officer of the United States for public use,

without being authorized, * * * todo so by some act of Con-

gress, is not the act of the Government.”); (/nited States v.

North Am. Transp. & Trading Co., 253 U.S. 330, 333 (1920)

(same).

That Fifth Amendment claims cannot be brought against

individual officials necessarily follows from the fact that the

Fifth Amendment does not prohibit the government fron

taking property but simply requires the government to pa\

just compensation if it does. Thus, if the government provides

a mechanism for obtaining just compensation for a taking (as

the Tucker Act does), the taking does not violate the Fift)

Amendment at all. Williamson County, 473 U.S. at 194. "Thy

Fifth Amendment does not proscribe the taking of propert:

it proscribes taking without just compensation.”); see Fu rs’

English Evangelical Lutheran Church vy. County of Los A)

geles, 482 U.S. 304, 315 (1987) (purpose of the Fifth Amend

ment is “not to limit the governmental interference with pror

erty rights per se, but rather to secure compensation in the

event of otherwise proper interference amounting to a tak

ing”). See also City of Monterey v. Del Monte Dunes

Monterey, Ltd., 526 U.S. 687, 710 (1999) (“Had the city paid

for the property or had an adequate postdeprivation remed

been available, Del Monte Dunes would have suffered no con-

stitutional injury from the taking alone.”).

It is clear, therefore, that no Bivens action would be ay

propriate for an actual taking of property under the Ff)

Amendment. The fact that respondent cannot even alles:

that any actual property has been taken in this case does no

make his novel attempt to import a Bivens remedy into th

Fifth Amendment’s Just Compensation Clause context a:

more appropriate.

2. The APA precludes respondent's Bivens action in its

entirety

In recent years, this Court has “consistently refused '

extend Bivens liability to any new context or new categor

defendants.” Correctional Servs. Corp. v. Malesko, 534 1 >

61, 68 (2001); see Schweiker v. Chilicky, 487 U.S. 412. 42)

(1988). That restraint corresponds with the Court's “mr

treat||” from its “previous willingness to imply a cause of a

tion where Congress has not provided one.” Ma/esko, 5

U.S. at 67 n.3; see Alerander v. Sandoval, 532 US. 2

286-287 (2001). The Court has emphasized that the “absence

of statutory relief for a constitutional violation . . . does not by

any means necessarily imply that courts should award money

damages against the officers responsible for the violation.”

Malesko, 534 U.S. at 69 (quoting Chilicky, 487 U.S. at

421-422). To the contrary, when “the design of a Government

program suggests that Congress has provided what it consid-

ers adequate remedial mechanisms for constitutional viola-

tions that may occur in the course of its administration,” the

Court has declined to create additional remedies under

Bivens. Chilicky, 487 U.S. at 423.

Thus, for example, in Bush v. Lucas, 462 U.S. 367 (1983),

the Court refused to create a Bivens cause of action for fed-

eral employees seeking to challenge personne] decisions even

though “existing remedies [did] not provide complete relief,”

id. at 388, and there was no remedy at all for certain person-

nel actions against probationary employees, id. at 385 n.28.

Similarly, in Chilicky, the Court refused to extend Bivens to

claims involving the denial of social security benefits, where

the social security disability claimants had recourse to both

administrative and judicial remedies. This Court, finding

“special factors counselling hesitation,” 487 U.S. at 423, ex-

plained that “Congress chose specific forms and levels of pro-

tection for the rights of persons affected by incorrect eligibil-

ity determinations” and that “[a]t no point did Congress

choose to extend to any person the kind of |damage] remedies

that [they] seek in this lawsuit,” id. at 426.

The reasoning of Bush, Chilicky, and Malesko compels the

conclusion that the APA’s comprehensive scheme for chal-

lenging agency action precludes a Bivens remedy with respect

to agency actions like those at issue here. Indeed, those cir-

cuits that have confronted the issue have held that the avail-

ability of relief under the APA generally precludes a Bivens

action for damages. See, e.g., Sinclair, 314 F.3d at 940

(“When Congress has created a comprehensive regulatory

regime, the existence of a right to judicial review under the

Administrative Procedure Act is sufficient to preclude a

Bivens action.”); Nebraska Beef, Ltd. v. Greening, 398 F.3d

1080, 1084 (8th Cir. 2005) (APA precludes Bivens remedy

“even when the administrative remedy does not provide com-

plete relief.”), cert. denied, 126 S. Ct. 1908 (2006); Miller v.

United States Dep't of Agric., 143 F.3d 1413, 1416 (11th Cir.

1998) (“[T]he existence of a right to judicial review under the

APA is, alone, sufficient to preclude a federal employee from

bringing a Bivens action.”); Moore v. Glickman, 113 F.3d 988,

994 (9th Cir. 1997) (Bivens action precluded by APA, coupled

with “some indication” that Congress meant to confer less

than complete relief); Sky Ad, Inc. v. McClure, 951 F.2d 1146,

1148 & n.4 (9th Cir. 1991) (Bivens remedy against allegedly

unconstitutional agency rulemaking precluded by APA right

to judicial review), cert. denied, 506 U.S. 816 (1992).

Similarly, in the Section 1983 context, this Court has gen-

erally declined to hold that a federat statute is actionable un-

der Section 1983 if the statute may be enforced through a

“private judicial remedy” or “even a private administrative

remedy.” Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121

(2005); see ibid. (“[I]n all of the cases in which we have held

that § 1983 is available for a violation of a federal statute, we

have emphasized that the statute at issue * * * did not pro-

vide a private judicial remedy (or, in most of the cases, even

a private administrative remedy) for the rights violated.”); id

at 121-122 (citing cases); see also id. at 128-129 (agreeing that

Section 1983 did not provide a cause of action to enforce fed-

eral rights that were subject to a “procedural and judicial

review scheme resembl{ing] that governing many federal

agency decisions”) (Breyer, J., joined by O’Connor, Souter,

and Ginsburg, JJ., concurring) (emphasis added). The same

principles of separation of powers and judicial restraint that

led the Court to that conclusion in the context of Section

1983—an express statutory cause of action—apply with even

more force in the context of Bivens—an inferred constitu-

tional cause of action.

Although it acknowledged that the APA generally pre-

cludes a Bivens action arising out of final agency action, Pet.

App. 81a, the court of appeals purported to carve up respon-

dent’s Bivens claim into two separate categories: (1) allega-

tions of final agency action (which the court held had to be

pursued under the APA) and (2) allegations it deemed insuffi-

ciently related to final agency action (for which, it held, a

Bive is action was appropriate). /d. at 82a. That dichotomy

is seriously flawed, both as a matter of law and of fact. Asa

matter of law, the observation is flawed because Bivens is not

available as a mere gap-filler to allow an additional cause of

action to address administrative actions too premature or too

insignificant to merit APA review. See pp. 34-37, infra. Asa

matter of fact, all of the allegations at issue, properly viewed,

are related to the same final agency action—the cancellation

of the right-of-way granted to respondent’s predecessor at the

ranch—and to respondent’s refusal to grant a reciprocal

right-of-way to the government.

Moreover, all of respondent’s arguments against the regu-

latory actions he now alleges as the basis for his RICO and

Bivens claims were either raised and resolved against him

during his administrative challenges to those actions, or could

have been raised in those or similar challenges. For example,

in the IBLA decision concerning the cancellation of his ease-

ment on public lands and his administrative trespass penalty,

the Board expressly rejected respondent’s contentions that

BLM’s actions resulted “in an unconstitutional ‘taking’ of his

property” and that BLM acted with improper motives, bad

faith, or an intent to “blackmail” him into agreeing to a recip-

rocal easement. Frank Robbins, 146 1.B.L.A. 213, 219 (1998)

(finding, among other things, respondent’s allegations of

“blackmail” and an unconstitutional taking to be “unsup-

ported”). Respondent chose not to seek judicial review of the

IBLA’s decision.

Similarly, in challenging BLM’s proposed cancellation of

his grazing permit, respondent expressly argued that BLM’s

actions constituted an uncompensated taking under the Fifth

Amendment and this Court’s decisions in Nollan v. California

Coastal Commission, 483 U.S. 825, 837 (1987), and Dolan v.

City of Tigard, 512 U.S. 374, 387 (1994). The IBLA rejected

that claim as being utterly baseless in light of the numerous

blatant violations of the terms of those permits, which the

IBLA determined were the real and sufficient grounds for the

cancellations. C.A. App. 62 (HD Ranch, IBLA No. 99-279,

slip op. at 5 (May 20, 1999) (order denying petition for stay of

cancellation of grazing permit)). Again, Robbins did not seek

judicial review of the IBLA’s decisions upholding the cancella-

ticn of his permits.

Respondent cannot contend, on the one hand, that “/a/ll”

of the actions alleged in his complaint “were taken as part of

an ongoing scheme to coerce [him] to grant the BLM an ease-

ment,” J.A. 76, and simultaneously maintain, on the other,

that certain of those acts (those not leading to final agency

action) are unrelated to the final agency actions (the

cancelling of his right-of-way and permits) that he claims pri-

marily caused his injuries. That conclusion is further con-

firmed by the fact that respondent’s complaint states only a

single Bivens claim predicated on an alleged violation of the

Fifth Amendment. See J.A. 78-79.

3. None of the limitations of the APA warrant the exten-

sion of a Bivens remedy in this context

The fact that the APA provides no remedy for certain

agency action—.e., that involving acts “unrelated to final

agency action,” Pet. App. 82a—does not mean that a Bivens

action may be inferred with respect to that conduct. To the

contrary, inferring such a Bivens action would be inconsistent

with Congress’s decision to shield non-final agency action

from review under the APA. 5 U.S.C. 704; see Bennett v.

Spear, 520 U.S. 154, 177-178 (1997). Given that the major

incidents that give rise to respondent’s claim involve final

agency action, the court of appeals’ rule has the perverse con-

sequence of inferring a constitutional cause of action for

money damages only as to those incidents that Congress con-

sidered too premature or insignificant for judicial review un-

der the statutory cause of action established by the APA. The

APA, rather than personal liability under Bivens, establishes

what Congress deemed to be the appropriate mechanism for

judicial review in this context. Whatever the merit of infer-

ring causes of action when it is damages or nothing, see, e.g.,

Malesko, 534 U.S. at 75 (Scalia, J., concurring), it cannot be

justified as a means of perfeeting or filling gaps in a compre-

hensive statutory scheme like the APA.

Similarly, the fact that the APA does not permit an award

of damages does not justify extending Bivens to this context.

5 U.S.C. 702. The APA provided respondent the opportunity

to challenge each of the key regulatory actions that now form

the basis of his Bivens claim—the cancellation of his easement

on government land, the filing of trespass charges against

him, and the cancellation of his grazing and special use per-

mits on government land—and to ask a court to reverse or

enjoin those regulatory actions, thereby avoiding the very

harms he now attempts to claim under Bivens. Among other

things, the APA permits a court to set aside agency action

found to be “contrary to constitutional right.” 5 U.S.C.

706(2)(B). Respondent was entitled, therefore, to raise any

constitutional challenge he may have had to petitioners’ ac-

tions in a suit for judicial review under the APA, and he in

fact did raise such challenges in administrative proceedings

(though he chose not to pursue them in court). See pp. 7-8,

33-34, supra. Because the APA provides the opportunity to

challenge unlawful adverse agency actions at the outset, and

thereby avoid the monetary harm that may otherwise result

from those agency actions, it provides a comprehensive reme-

dial scheme that precludes a Bivens action, even in the ab-

sence of a right to money damages.”

Furthermore, when a comprehensive statutory remedial

scheme exists, it does not matter whether a particular plain-

tiff will have any remedy under that scheme. Cf. United

States v. Fausto, 484 U.S. 439, 455 (1988). Indeed, it is settled

circuit law that Bush and Chilicky prevent the creation of a

Bivens remedy even when the particular plaintiff has no relief

at all under the comprehensive statutory remedy. See, e.g.,

Pipkin v. United States Postal Serv., 951 F.2d 272, 275 (10th

Cir. 1991) (holding that where Congress has created a com-

prehensive remedial scheme, courts may not create additional

remedies, “even where a particular litigant does not have a

remedy available under the statutory scheme”); accord Jones

v. TVA, 948 F.2d 258, 264 (6th Cir. 1991) (“In the field of fed-

eral employment, even if no remedy at all has been provided

by the [Civil Service Reform Act], courts will not create a

Bivens remedy.”) (citing cases); Saul v. United States, 928

F.2d 829, 840 (9th Cir. 1991) (same). See also Volk v. Hobson,

866 F.2d 1398, 1402 (Fed. Cir.), cert. denied, 490 U.S. 1092

(1989); Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988)

(en bane).

Accordingly, extending Bivens to this context would radi-

cally expand Bivens in direct contravention of this Court’s

precedents and principles of judicial restraint. See Malesko,

534 U.S. at 69. Congress provided an APA remedy by which

respondent could have challenged the actions taken-by BLM,

and it is not the province of this Court to supplant that careful

statutory remedial scheme by inferring a markedly different

* The APA remedy also offers a plaintiff something unavailable in a

Bivens action: the potential for attorney’s fees under the Equal Access

to Justice Act, 28 U.S.C. 2412(d). Attorney’s fees are unavailable in

Bivens actions. Kreines v. United States, 33 F.3d 1105 (9th Cir. 1994),

cert. denied, 513 U.S. 1148 (1995); ef. Premachandra v. Mitts, 753 F.2d

635 (8th Cir. 1985) (en banc) (no fees in injunctive action against federal

employees for constitutional violations).

constitutional cause of action for money damages against indi-

vidual officials.

B. There Is No Fifth Amendment Right Against Retaliation

For The Exercise Of Property Rights

Even assuming a Bivens action might be inferred under

the Just Compensation Clause in certain circumstances, re-

spondent’s claim here is without merit, because not only has

he failed to show a substantive violation of the Fifth Amend-

ment (as explained below), but the Fifth Amendment does not

embody the novel anti-retaliation right conceived of by the

court below. Pet. App. 15a. Until the decision below, no court

of appeals had ever recognized a constitutional right against

retaliation outside the context of activity protected by the

First Amendment, much less in the context of property rights

protected by the Fifth Amendment’s guarantee of just com-

pensation. That unprecedented aspect of the court’s decision

provides a sufficient reason for reversing the court of appeals’

Bivens ruling.

This Court’s constitutional retaliation doctrine is limited

to suits alleging retaliation for the exercise of First Amend-

ment rights. The Court has long shown a special sensitivity

to the exercise of First Amendment rights, see, e.g., NAACP

v. Button, 371 U.S. 415, 433 (1963) (First Amendment “free-

doms are delicate and vulnerable, as well as supremely pre-

cious in our society”); Bates v. State Bar, 433 U.S. 350, 380

(1977) (“First Amendment interests are fragile interests, and

a person who contemplates protected activity might be dis-

couraged by the in terrorem effect of the statute.”), and gov-

ernment action retaliating for unwelcome speech can readily

be seen as abridging free speech. When someone suffers re-

taliation for exercising First Amendment rights, the Court

has, accordingly, permitted an action for damages to compen-

sate for such retaliation. See Hartman v. Moore, 126 S. Ct.

1695, 1701 (2006) (“[T]he law is settled that as a general mat-

ter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions * * * for

speaking out.”) (citation omitted); Perry v. Sindermann, 408

U.S. 593, 597 (1972).”

Neither this Court nor any circuit court other than the

court below has held that other constitutional provisions in-

clude an anti-retaliation component. While government retal-

iation for unwelcome speech can be seen as action abridging

free speech, government retaliation—stopping short of a

taking—for the exercise of a property right cannot be readily

characterized as a taking or Fifth Amendment violation. In-

deed, the court of appeals itself did not ground its decision

recognizing a newfound Fifth Amendment anti-retaliation

right in any particular reading or historical understanding of

the Fifth Amendment, but rather in dictum in a First Amend-

ment case. Pet. App. 15a-l6a (citing DeLoach v. Bevers, 922

F.2d 618, 620 (10th Cir. 1990), cert. denied, 502 U.S. 814

(1991)).

While the Fifth Amendment is of course entitled to equal

footing with the First, the concerns about chilling protected

activity that motivate the anti-retaliation doctrine in the First

Amendment context are not present, or at least are greatly

reduced, in the Fifth Amendment takings context. Unlike the

First Amendment, the Fifth Amendment was not intended to

encourage a particular type of expressive citizen activity that

could be chilled if not robustly protected. Moreover, individu-

als have an inherent and strong interest in vigorously resist-

ing unwarranted government interference with their prop-

* The Court’s recognition of a specialized First Amendment right

against retaliation is consistent with the fact that the Court has deve-

loped a variety of other legal doctrines that apply in the First Amerid-

ment context alone. See, e¢.g., Virginia v. Hicks, 5389 U.S. 113, 118

(2003) (overbreadth); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (least

restrictive alternative); BE&K Constr. Co. v. NLRB, 536 U.S. 516, 5380

(2002) (prior restraints); Village of Schaumburg v. Citizens for a Better

Env't, 444 U.S. 620, 634 (1980) (third-party standing); Boy Scouts of

Am. v. Dale, 530 U.S. 640, 648-649 (2000) (independent review of fact

finding).

erty, and the Fifth Amendment’s guarantee of just compensa-

tion for taking of any protected property interest itself cre-

ates a robust incentive for invoking one’s Fifth Amendment

rights.

Furthermore, the Fifth Amendment, which requires the

availability of just compensation in order for a taking to be

valid, presupposes a degree of permissible governmental in-

terference with property rights that is wholly alien in the

context of First Amendment speech rights. Indeed, the scope

of permissible government interference is sufficiently broad

in the Fifth Amendment context that this Court has made

clear that typically no constitutional violation occurs at the

time the property in question is taken by the government.

Instead, “a property owner has not suffered a violation of the

Just Compensation Clause until the owner has unsuccessfully

attempted to obtain just compensation through the proce-

dures provided by the State for obtaining such compensa-

tion.” Williamson County, 473 U.S. at 195; see id. at 194

n.13. Thus, because the Fifth Amendment’s Just Compensa-

tion Clause (unlike the First Amendment) is not primarily an

absolute prohibition of government action, but rather requires

the availability of just compensation for any taking that may

occur, the anti-retaliation right created for the First Amend-

ment is ill-suited for this markedly different constitutional

context.

That conclusion is particularly true in the present context

of interlocking properties and reciprocal easements that are

common in public land management in the West. In that con-

text, there is a broad scope of legitimate give and take that

makes liability for going too far in allegedly “retaliating” for

another landowner’s failure to agree to a reciprocal easement

particularly troubling. The Fifth Amendment provides sub-

stantial leeway for such give and take—establishing a prohibi-

tion on the government’s conduct only when it actually takes

property and, even then, only when it does so without provid-

ing just compensation. It is therefore telling that respondent

in this case has pointedly declined to allege any taking.

Finally, any practical value of creating a separate Fifth

Amendment right against retaliation is severely diminished

by the fact that the well-established First Amendment right

against retaliation protects citizens seeking to invoke their

Fifth Amendment protections by petitioning the government

for just compensation or other administrative means of re-

dress. That is because the First Amendment protects the

underlying activity of petitioning the government for redress.

In this case, however, respondent has never asserted any

First Amendment retaliation claim against petitioners. In-

stead, his claim is grounded exclusively in the state-law right

to exclude and the Fifth Amendment’s Just Compensation

Clause, which lacks any independent anti-retaliation compo-

nent. See J.A. 78-79.

C. Respondent Has Not Alleged The Violation Of Any

Right Protected By The Fifth Amendment

Respondent does not allege that any of his property rights

were actually taken by the government, or that the right to

just compensation guaranteed by the Fifth Amendment has

otherwise been triggered by any of the regulatory actions

about which he complains.” Instead, his Bivens claim is pre-

mised on the theory that the Fifth Amendment’s guarantee of

just compensation entitles him to enjoy a right-of-way over

public land (and other rights to public land relating to grazing

and commercial recreational activities) while refusing to grant

the government a reciprocal easement over his own land.

Remarkably, the court of appeals not only accepted respon-

dent’s novel theory of the Fifth Amendment, it held that the

rights asserted were sufficiently clearly established as to give

'° Respondent made takings claims in the administrative actions he

filed against BLM. The IBLA rejected those claims and respondent did

not seek judicial review of that order. See pp. 7-8, 33-34, supra.

rise to personal liability for petitioners. That holding is pro-

foundly wrong.

1. The Fifth Amendment guarantees only the right to

just compensation

By its terms, respondent’s Bivens-based retaliation claim

is predicated entirely on the Fifth Amendment. Pet. App.

10a-16a. The Fifth Amendment, however, does not by its

terms guarantee the right to exclude others from one’s prop-

erty. Rather, it guarantees the availability of just compensa-

tion as a condition to the taking of property. That is not to

say that the right to exclude is not a protected property inter-

est. It is common ground that individuals possess a “right to

exclude” others—including the government—from their prop-

erty. But although this Court has held that the right to ex-

clude was “{oJne of the main rights attaching to property”

found at common law, see Rakas v. Illinois, 439 U.S. 128, 144

n.12 (1978), the Court has made clear that the right’s contem-

porary source is state law, see Board of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972); see also Lucas v.

South Carolina Coastal Council, 505 U.S. 1003, 1030 (1992);

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984). The

Fifth Amendment thus protects the state law right to exclude

by the same means it protects other state law property rights

against action by the government: by the guarantee of just

compensation if that right is lawfully “taken” within the

meaning of the Just Compensation Clause. Kaiser Aetna v.

United States, 444 U.S. 164, 176 (1979); see Dolan, 512 U.S. at

384."

Because the only guarantee of the Fifth Amendment is the

availability of just compensation (which is presumptively

'' State law still protects the right to exclude through non-constitu-

tional means, including the tort of trespass. Federal officials who enter

private property without the requisite authorization may commit the

tort of trespass, and such trespasses may be remedied under the

FTCA.

available under the Tucker Act), respondent has no Fifth

Amendment right to preclude the government from taking his

property (or under his theory, from seeking to coerce him to

grant property to the government). Thus, the court of ap-

peals plainly erred when it held that “[respondent] has a Fifth

Amendment right to prevent BLM from taking his property

when BLM is not exercising its eminent domain power.” Pet.

App. 14a (emphasis added); see ibid. (“Under the Takings

Clause, the government may take private property for public

use so long as it provides just compensation. U.S. Const.

amend. V. When the government has chosen not to exercise

its eminent domain power, however, citizens remain free to

exclude even the government from their private property.

Kaiser, 444 U.S. at 179-80.”). Indeed, this Court has made

clear both that an individual has no Fifth Amendment right to

prevent a taking (only a right to just compensation for the

taking), and that takings may occur outside of the formal

eminent-domain process.

In Williamson County, the Court declared that “(t]he

Fifth Amendment does not proscribe the taking of property;

it proscribes taking without just compensation.” 473 U.S. at

194. Likewise, in Monsanto, this Court held that “[e]quitable

relief is not available to enjoin an alleged taking of private

property for a public use, duly authorized by law, when a suit

for compensation can be brought against the sovereign subse-

quent to the taking.” 467 U.S. at 1016 (footnote omitted). As

the Court explained, nothing in the Fifth Amendment

“require|s] that compensation precede the taking.” /bid.; see

United States v. Riverside Bayview Homes, Inc., 474 U.S.

121, 127-128 (1985).

In addition, this Court has long held that takings may

occur outside of the eminent-domain process. See Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (noting that the

Court has recognized since 1922 “that government regulation

of private property may, in some instances, be so onerous that

its effect is tantamount to a direct appropriation or ouster

—and that such ‘regulatory takings’ may be compensable

under the Fifth Amendment”). The fact that petitioners were

not exercising eminent-domain powers therefore does not

elevate respondent’s state law right to exclude the govern-

ment from his land to a guarantee of the Fifth Amendment (as

opposed to a state law property right protected by the Fifth

Amendment’s guarantee of just compensation). And the fact

that respondent has not alleged that petitioners actually took

his property outside the eminent domain process provides

another reason that his claim is outside the ambit of the Fifth

Amendment.

Relatedly, a plaintiff may not sue individual government

employees for a taking; his sole remedy under the Fifth

Amendment is to seek just compensation under the Tucker

Act once a taking has occurred. See 28 U.S.C. 1491. And if

the government eventually provides just compensation for a

taking, the taking itself does not violate the Fifth Amendment

at all. See pp. 29-30, supra.

Kaiser Aetna—the principal case on which the court of

appeals relied, Pet. App. 12a-14a—is not to the contrary.

That decision makes clear—in language omitted by the court

of appeals—that the “right to exclude” may be taken so long

as just compensation is paid. 444 U.S. at 179-180 (“(T]he

‘right to exclude,’ so universally held to be a fundamental ele-

ment of the property right, falls within [the] category of inter-

ests that the Government cannot take without compensa-

tion.”) (footnote omitted and emphasis added). Respondent,

however, does not claim any taking and thus has never pur-

sued the statutory avenue to obtain compensation for an al-

leged taking. Williamson County, 473 U.S. at 195 (“[T]aking

claims against the Federal Government are premature until

the property owner has availed itself of the process provided

by the Tucker Act, 28 U.S.C. § 1491.”); accord Preseault v.

ICC, 494 U.S. 1, 11 (1990). Especially in the context of inter-

locking properties, the careful scheme of the Takings Clause

cannot be replaced by individual officer liability when the

negotiation process for a reciprocal easement breaks down.

2. Respondent cannot claim that petitioners imposed an

unconstitutional condition on either his property

rights or his right to access public lands

As indicated, respondent does not allege that any of his

property was actually taken, but that BLM tried to take his

property by pressuring him to give the government a recipro-

cal right-of-way over his property. In fact, far from alleging

that the government has actually taken any of his property,

respondent’s Fifth Amendment Bivens claim is predicated on

his assertions that he is being denied the use of public lands

(z.e., a right-of-way on and maintenance of the federal portion

of the road, and grazing and recreational use privileges on

federal lands) because he will not consent to a reciprocal

right-of-way over his portion of the road. In this regard, this

case is not about the “right to exclude” the government from

one’s own property as much as it is the right to obtain access

to public land (and benefit from other valuable public privi-

leges such as grazing and special use permits on public lands)

while refusing to grant the government any reciprocal rights

on private land. Whatever else is true, the Fifth Amendment

does not confer upon respondent a right to use public lands

for his private benefit while denying BLM the reciprocal

right-of-way necessary for BLM to manage and protect inter-

locking public lands.

Relying, inter alia, on this Court’s decisions in Nollan and

Dolan, respondent asserts that “(t]he Constitution forbade

petitioners from conditioning respondent’s right to other gov-

ernment benefits (¢.g., grazing permits, road maintenance,

etc.) on his waiver of his Fifth Amendment rights,” because

“[t]he denial of those benefits had no relationship to the

BLM’s legitimate regulatory interests relating to grazing,

road maintenance, etc., and was nothing more than an

‘out-and-out plan of extortion.’” Br. in Opp. 26-27 (citation

omitted). But respondent’s reliance on the Nollan line of

cases is fundamentally misplaced for several reasons.

First, the only regulatory action BLM took that can be

fairly characterized as being based on respondent’s refusal to

grant the United States a reciprocal easement on his land was

the cancellation of the right-of-way the government had

granted to respondent—which was conditioned on the receipt

of the reciprocal easement. But it may not seriously be con-

tended that the conditioning of a right-of-way on public land

on the receipt of a reciprocal easement on private land—in the

context of a road that passes over interlocking parcels of both

public and private lands—constitutes a taking under the Fifth

Amendment.

Indeed, seeking to obtain such reciprocal property rights

is a reasonable and commonplace feature of federal land man-

agement, just as it is for private landowners. Consistent with

its statutory responsibilities, BLM has determined that, in

‘ertain circumstances, it is appropriate to grant rights-of-way

on public lands to business entities, among others, and to

“regulate, control and direct” the use of those rights-of-way

to “{p]rotect the natural resources associated with the public

lands” and to “[p]revent unnecessary or undue environmental

damage to the lands and resources.” 43 C.F.R. 2800.0-2(a)

and (b) (2004). BLM has also determined that it may be con-

sistent with the public interest to condition the grant of a

right-of-way over public land on the receipt of a reciprocal

“equivalent right-of-way [on the applicant’s land] that is ade-

quate in duration and rights.” 43 C.F.R. 2801.1-2 (2004).

Where, as here, an applicant for a right-of-way refuses to

grant BLM a reciprocal casement, his application may be

denied without running afoul of the Fifth Amendment. Espe-

cially in the context of interlocking parcels of public and pri-

vate lands, conditioning a right-of-way on public land on the

receipt of a reciprocal easement is eminently reasonable and

easily satisfies any requirement of an “essential nexus” be-

tween a legitimate state interest and the condition of a recip-

_ rocal easement, Nollan, 483 U.S. at 837, or a “rough propor-

tionality” between the terms of the reciprocal easement and

the government’s objectives, Dolan, 512 U.S. at 391.

The reciprocal easement at issue in this case simply repre-

sents a logical consequence of the considerations discussed in

this Court’s decision in Leo Sheep Co. v. United States, 440

U.S. 668 (1979), which also arose because of the interlocking

nature of public and private lands in Wyoming. The dispute

in that case arose when the government simply cleared a dirt

road over private land so that the public could access a reser-

voir over a “checkerboard configuration” of lands that made

access to the reservoir impossible without crossing private

land. /d. at 678. The Court in Leo Sheep refused “to accom-

modate some ill-defined power to construct public thorough-

fares without compensation” over checkerboard lands in the

West to guarantee public access to public lands. /d. at 687-

688. But at the same time, the Court understood that there

remained ready alternatives to either exercising eminent do-

main or rendering public lands effectively unusable, including -

“negotiation” and “reciprocity concerns.” /d. at 681; see id.

at 686 (Congress believed that “the ordinary pressures of

commercial and social intercourse would work itself into a

pattern of access roads” in the West over interlocking public

and private lands). Respondent here now seeks to subject

federal officials to the pain of RICO liability and Bivens

claims for precisely the sort of give and take that both Con-

gress and this Court have recognized has been instrumental

to ensuring that public lands are not stranded and rendered

inaccessible to the public.

Second, respondent is precluded from claiming in this

Bivens action that petitioners impermissibly conditioned

other regulatory benefits, such as his grazing and special rec-

reation permits, on his granting a reciprocal easement to the

government. As found in respondent’s administrative chal-

lenges to each of the complained-of regulatory actions, peti-

tioners had independent and sufficient regulatory reasons for

each of the actions taken. Respondent—like the land owners

in Nollan and its progeny—could have sought judicial review

of those adverse administrative adjudications and, if he could

’ “@stablish that they were unlawful, could have prevented those

actions from occurring. He did not do so. He therefore

should not now be able to avoid dismissal of this extraordinary

Bivens action on the ground of qualified immunity by merely

alleging an improper objective as a way of circumventing the

customary channels of administrative and judicial proceed-

ings. See, e.g., Utah Constr., 384 U.S. at 421-422 (applying

principles of issue and claim preclusion to administrative ad-

judications); accord Kremer, 456 U.S. at 484-485 n.26; Elliott,

478 U.S. at 797-798.

Third, in the Nollan line of cases, there was an actual in-

terference with property owned by the private citizen. In

Nollan itself, for example, the property owners were denied

a building permit on their land unless they agreed to a public

easement. In concluding that the public easement condition

lacked an “essential nexus” to any legitimate land-use regula-

tion, the Court expressed particular concern for cases, such

as Nollan itself, “where the actual conveyance of property is

made a condition to the lifting of a land-use restriction, since

in that context there is heightened risk that the purpose is

avoidance of the compensation requirement, rather than the

stated police-power objective.” 483 U.S. at 841.

Here, in stark contrast, respondent allezes—at most—

that petitioners placed an improper condition on an asserted

right to use public lands. Respondent claims that he is being

denied the use of public lands—namely, the right to conduct

maintenance of the federal portion of South Fork, Owl Creek

Road and grazing and special-use privileges on federal lands

—beeause he will not consent to a reciprocal right-of-way over

his portion of the road. While a property owner is free to

argue that conditions on the use of public lands violate his due

process or equal protection rights, there is no support for the

rule adopted by the court of appeals that the government’s

reasonable efforts to secure reciprocal property rights as a

condition of access to public lands constitutes a taking under

the Fifth Amendment. And such a rule would radically upset

settled expectations in numerous areas, including land man-

agement in the West, where the government and private par-

ties negotiate mutually beneficial reciprocal arrangements

that involve valuable public benefits, including rights-of-way

over public lands.

D. Ata Minimum, Petitioners Did Not Violate Any Clearly

Established Fifth Amendment Right

Finally, even if this Court were to adopt a theory of consti-

tutional retaliation that for the first time extended to rights

under the Fifth Amendment, petitioners in this case still

would be entitled to qualified immunity. As we explained

above, whether a right is clearly established must be analyzed

very specifically in the narrow context presented. That is,

“It}he relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situa-

tion he confronted.” Saucier, 533 U.S. at 202. That inquiry is

conclusively determined in this case by the fact that the court

of appeals itself admitted that “no court has previously explic-

itly recognized the right to be free from retaliation for the

exercise of Fifth Amendment rights.” Pet. App. 16a. Nor has

any court previously recognized a Bivens cause of action in

this context. That is the end of the qualified immunity in-

quiry.

CONCLUSION

The judgment of the court of appeals should be reversed

and the case remanded with instructions to dismiss the com-

plaint.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

GREGORY G,. GARRE

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

BARBARA L. HERWIG

EDWARD HIMMELFARB

Attorneys

JANUARY 2007

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.