Reply Brief — Wilkie v. Robbins

; Spree

7YC |

In the Supreme Court of the Gnited States

CHARLES WILKIE, ET AL., PETITIONERS

v.

HARVEY FRANK ROBBINS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

TABLE OF CONTENTS

Page

DD... cn cucpiegenednaimbeennsmeens Gunes wuehnete 1

I. ‘This case involves the management of public lands,

not an intrusion on private land ................005: 2

II. Respondent has failed to show a RICO violation ..... 4

III. Respondent has failed to show any actionable

violation of the Fifth Amendment .................. sy]

A. “here is no basis to extend Bivens to this new

GEE Goku bacu ded¥ausaebaseeucacnenedctbees 9

B. Respondent has not alleged the violation of any

right protected by the Just Compensation

PT +) tte deseetawihgees Mes eee 4 0ue ened 12

IV. Petitioners are entitled to immunity ............... 16

PY nsdn cdceetcusecseses see eee eeceececceneens 20

TABLE OF AUTHORITIES

Cases:

Aetna Heath Inc. v. Davila, 542 U.S. 200 (2004) ....... 18

Anderson v. Creighton, 483 U.S. 635 (1987) ..... 17, 18, 19

Bivens v. Six Unknown Named Agents of Fed.

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

Brosseau v. Haugen, 543 U.S. 194 (2004) ...........6. 17

Bush v. Lucas, 462 U.S. 367 (1983) ...........ce cece 12

" Butz v. Economou, 438 U.S. 478 (1978) ........2 2c eee 18

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

PE £iceccct cede ded Un ebel Chckene shun eaeed 64 12

Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997),

cert.-denied, 523 U.S. 1094 (1998) .............005. 18

Dolan v. City of Tigard, 512 U.S. 374 (1994) ........ 11,14

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) .......... 14

(1)

II

Cases—Continued: Page

Edgcomb v. Lower Valley Power & Light, Inc.,

See Se CHT BOD oc cccccccsccccccccccces “ie

Evans v. United States, 504 U.S. 255 (1992) ............ 7

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......... 6, 7, 18

Hartman v. Moore, 126 S. Ct. 1695 (2006) .......... 9,10

Hiler v. Brown, 177 F.3d 542 (6th Cir. 1999) ........... i)

Hillv. Department of the Air Force, 884 F.2d 1318

(10th Cir. 1989), cert. denied, 495 U.S. 947 (1990) ....9

Hooe v. United States, 218 U.S. 322 (1910) ............ 10

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

GEE Sadi cducndedaciabesdedacdasennntens 11, 13, 15

Lhotka v. United States, 114 F.3d 751 (8th Cir. 1997) ..... 5

Linne v. Rideoutte, 971 F.2d 766 (D.C. Cir. 1992),

cert. denied, 507 U.S. 1004 (1993) .............005. 18

Meredith v. Federal Mine Safety & Health Review

Comm’n, 177 F.3d 1042 (D.C. Cir. 1999) ............. y

Mitchell v. Forsyth, 472 U.S. 511 (1985) ...........005. 9

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

(8th Cir. 2005), cert. denied, 126 S. Ct. 1908 (2006) .... 9

Nollan v. California Coastal Comm’n, 483 U.S. 825

SEE ‘chigh dxsntedhuce ueliseeiadadh Jane ween 11, 14, 15

Northwest La. Fish & Game Preserve Comm’n v.

United States, 446 F.3d 1285 (Fed. Cir. 2006) ........ 6

Pelletier v. Federal Home Loan Bank, 968 F.2d 865

I eg ee ee de eaeenebanen g

Preseault v. (CC, 494 US. 1 (1988) 2... cc ccc ceccccvess 10

Richardson v. McKnight, 521 U.S. 399 (1997) ......... 19

Ruckelshaus v. Monsanto, Co., 467 U.S. 986 (1984) ..... 13

Saucier v. Katz, 533 U.S. 194 (2001) ............... 17, 19

Il

Cases—Continued: Page:

Scheidler v. NOW, 537 U.S. 393 (2003) .............45. 8

Schweiker v. Chilicky, 487 U.S. 412 (1988) .......... 9,12

Sinclair v. Hawke, 314 F.3d 934 (8th Cir. 2008) ........ 17

Tennessee Student Assistance Corp. v. Hood,

Re oe ea eee 18

Thillens, Inc. v. Community Currency Exch. Ass’n of

Ill., Inc., 729 F.2d 1128 (7th Cir.), cert. dismissed,

SE ED dane Gh ove heackéqeecdvaneeédns 18

Tower v. Glover, 467 U.S. 914 (1984) ................. 18

United States v. Bonanne Organized Crime Family,

op 5 | kt 8 er er rer errr 6

United States v. Cooper Corp., 312 U.S. 600 (1941) ...... 6

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

EE i duduvnduieeaddsbandecestuawnses 10

United States v. Olson, 1268. Ct. 510 (2005) ........... 5

USPS v. Flamingo Indus. (USA) Ltd., 540 U.S. 736

OS i a al i ers ree EE ee ek eae 6

Washoe County v. United States, 319 F.3d 1320

ED 6 Sir cclckaUsER adel Gee senasdcceesive 6

Williamson County Reg’l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) ............... 10

Wyatt v. Cole, 504 U.S. 158 (1992) ................ 18, 19

Zimbelman v. Savage, 228 F.3d 367 (4th Cir. 2000) ...... 9

Constitution, statutes, regulation and rule:

U.S. Const.:

RRR aOR CE ea Cee stat sy Reem NAPE Ee nre (ny oad og! 16

ee a OL em aeaaeeeee 13

REG ks can cdusdeucesdbnsadscdbes uncanes passim

IV

Constitution, statutes, regulation and rule: Page

PEI Sacededcccncecucdduuebacns 12

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

Administrative Procedure Act, 5 U.S.C. 701 et seg. ...... 1

Federal Tort Claims Act, 28 U.S.C. 1346 .............. 1

PP SED bvodencnsch teenscadesicsces 5

Racketeer Influenced and Corrupt Organizations Act

oe Ba eee l

Sherman Act, § 7, 15 U.S.C. Ga (1952) ..............00. 6

TES EIT -ncesicscetisduccadescaness 1

ED ncdduwcwskwseutcasenevencasasds 4

MEE sha 4 UWesbs sg Gcehenssenesteeea caus aus 18

Miscellaneous:

BLM Wyoming, 2005 Annual Report to the Public ..... 1]

Frank Robbins:

PE ED. nv eddeusincesasenetosssess of

EE. dn cbducuekes bevcabeeussneds 4

SOE REEOM PUD vnc bss ca sdwevesassentesens 4

R. Perkins & R. Boyle, Criminal Law (3d ed. 1982) ..... es

INTRODUCTION

The interspersed nature of public and private lands in the

West, and the federal government’s responsibility for managing

public lands, creates numerous sources of potential friction

among landowners. Congress and the Bureau of Land Manage-

ment (BLM), in turn, have provided numerous avenues to ad-

dress private landowners’ complaints. Landowners may file an

action under the Tucker Act, 28 U.S.C. 1491, for just compensa-

tion for any physical taking of their property, or for any regula-

tion that they claim amounts to a taking. They may seek to en-

join conduct that they claim will amount to an uncompensated

taking. They may challenge any alleged trespass or related inva-

sion under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346.

They may challenge regulatory actions through agency proce-

dures, such as the Interior Board of Land Appeals (IBLA). And

they may challenge any final agency action under the Adminis-

trative Procedure Act (APA), 5 U.S.C. 701 et seq.

Respondent alleges that the government has interfered with

his property rights, but he does not seek to invoke any of those

established mechanisms. Although his Fifth Amendment claim

is grounded solely on the Just Compensation Clause (see Br. 11

n.11), he has not alleged either a physical or regulatory taking.

He has not sought relief under the FTCA or the APA. And,

while he has filed numerous administrative claims—all of which

have been rejected by the IBLA—he now claims (Br. 9-10) that

the available administrative process is too burdensome to ex-

haust. Instead, respondent asks this Court to recognize an action

under the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. 1961 et seq., carrying the threat of treble dam-

ages against federal officials in their personal capacities, and a

new constitutional tort against federal officials under the Just

Compensation Clause and Bivens for virtually any alleged inter-

ference with a property owner’s state law right to exclude.

Not only would respondent’s theory require this Court to

expand dramatically the scope of Bivens, the Just Compensation

(1)

2

Clause, and RICO, it would severely undermine the govern-

ment’s ability to manage the millions of acres of public lands that

are interspersed with private lands in the West. Neither respon-

dent nor his amici have provided any reason for the Court to take

such an extraordinary step. And they certainly have provided no

reason for this Court to deprive petitioners of qualified immunity

- from the novel damages claims before the Court.

I. THIS CASE INVOLVES THE MANAGEMENT OF PUBLIC

LANDS, NOT AN INTRUSION ON PRIVATE LAND

Because respondent’s theory of the case has evolved, it is

worth reviewing the basic dispute that gave rise to this action.

This case began as a challenge to BLM’s decision to cancel a

right-of-way over a 14-mile stretch of public land granted to the

prior owner of the High Island Ranch after respondent refused

to consent to a 4-mile reciprocal easement over private lands in

the area. See J.A. 89 (illustrating easement). The easement was

sought to ensure that BLM would be able to cross interspersed

parcels of private land in order to reach public lands adjacent to

the upper northwest portion of the High Island Ranch, located

in the Rock Creek allotment. See J.A. 136 (map). Access to that

area Was necessary, among other things, to reach a wilderness

study area and to manage critical wildlife habitats (including an

Elk calving area) as well as the Rock Creek allotment itself.

BLM canceled the right-of-way after respondent declined to

grant the reciprocal easement and failed to pay the required

rental on the right-of-way. See C.A. App. 42-43.’

' Respondent claims (Br. 4) that the reciprocal easement and the right-of-

way were “markedly unequal.” That is incorrect. The right-of-way had a

duration of 30 years and applied to a 14-mile stretch of public lands, whereas

the reciprocal easement for the government had a duration of 20 years and

applied to a 4-mile stretch of respondent’s land. Respondent points (Br. 4) to

differences concerning the use of the easement by mining companies, but those

differences mercly reflect the fact that the government owns the subsurface

mineral rights to both the public and private lands at issue.

3

Respondent now concedes (Br. 6) that it was at least “plausi-

ble” for BLM to maintain that “respondent had a legal duty to

give the BLM an easement [over private land] in exchange for a

right-of-way |over public land|.” And federal law permits BLM

to secure such commonsense, reciprocal arrangements. Pet. Br.

3-4. As a result, respondent has shifted his focus away from this

reciprocal arrangement to discrete regulatory actions that BLM

undertook in the course of managing public lands in the area.

Specifically, respondent now grounds his RICO and Fifth

Amendment claims on alleged “harassment, selective enforce-

ment of regulations, filing false criminal charges, and trespass-

ing.” Resp. Br. 46; see id. at 6-10. Each of those alleged actions

was amenable to challenge through administrative complaints or

specific judicial remedies, and respondent unsuccessfully at-

tempted to challenge many (though not all) of them before the

IBLA. See Pet. Br. 6-8.

Moreover, BLM took each of the alleged actions in fulfilling

its duty to manage public lands. The alleged “harassment” of

respondent’s cattle drives was based on BLM’s efforts to docu-

ment respondent’s trespasses on public lands. Many of those

trespasses were on grazing allotments assigned to neighboring

ranchers who complained to BLM about respondent's repeated

trespasses on their allotments. See C.A. Supp. App. 931-933,

1003-1005. The alleged selective enforcement was based on re-

spondent’s trespasses and other violations of the terms of his

grazing permits and special use permits. Those violations re-

sulted in BLM’s decisions not to renew respondent’s permits,

actions that were upheld by the IBLA. The alleged false criminal

charges were brought after respondent physically impeded BLM

officers who were exercising the right of administrative access to

reach public lands. And the alleged trespasses were based on

BLM’s efforts to monitor respondent’s use of public lands.

All of the administrative actions on which respondent focuses

concern alleged trespasses by BLM officials seeking to access

interlocked parcels of public land, and all of them relate to respon-

4

dent’s disagreement with formal IBLA adjudications confirming

that respondent’s grazing and recreational use permits provide

BLM a right of administrative access over respondent's land to

protect interlocking parcels of public land and ensure compliance

with the terms of the permits. See 154 I.B.L.A. 93, 95-96 (2000);

see also 43 C.F.R. 4130.3-2(h); C.A. App. 61. Respondent de-

clined to invoke his right under the APA to challenge the results

of those IBLA proceedings in federal court.”

In short, while respondent seeks to portray himself as a victim

of federal intrusion on his land, this case involves one land-

owner’s insistence on enjoying the benefits of public lands while

refusing to honor the responsibilities that the government has

long required of those who use the public domain, in order to

protect and preserve public lands and resources. Neither RICO,

the Fifth Amendment, nor Bivens gives a landowner a right to

insist on such a one-sided land use regime.

II. RESPONDENT HAS FAILED TO SHOW A RICO VIOLATION

As petitioners have explained (Br. 15-27), respondent’s RICO

claim suffers from two fatal flaws. First, RICO—an organized

crime statute—was never designed to reach federal officials act-

ing within the scope of their authority to further legitimate gov-

ernmental aims, such as public land management. Second, to

~ For example, in the IBLA proceeding upholding BLM’s decision not to

renew respondent's recreational use permit over public lands, the IBLA cited

respondent’s “pattern of violating the terms and conditions of his various public

use authorizations,” including the fact that respondent had been “cited for

trespass for unauthorized blading of a road on pulic lands, been in noncompli-

ance with his grazing permit on at least 20 occasions, and received formal

notices regarding 11 different grazing trespasses, 7 of which settled and 4 of

which are the subject of pending |IBLA] appeals.” 154 1.B.L.A. at 98; see id.

at 94-95. The IBL.A decisions also recognized and endorsed BI.M’s practice of

photographing or videotaping respondent's trespasses, including unauthorized

cattle drives, on public lands. 167 1.B.L.A. 239, 247 n.&8 (2005). The IBLA also

found that the administrative record shows that “intransigence was the Lactic

of |respondent), not BLM.” 146 1.B.L.A. 213, 219 (1998).

5

establish the predicate offense of extortion, a plaintiff must show

both that government officials act with a “wrongful” intent, i.e.,

that officials seek something of value that they are not due in

exchange for official conduct, and that the officials actually “ob-

tain” something of value for the private benefit of themselves or

another. Neither of those traditional elements of the common

law offense of extortion is present here.

Respondent concedes that no court has applied RICO against

public officials acting pursuant to their lawful authority to obtain

a reciprocal property interest on behalf of the United States. He

also concedes (Br. 42) that the predicate offense of extortion

“prohibits only ‘wrongful’ conduct and punishes only willful viola-

tions” of the Hobbs Act, 18 U.S.C. 1951. Moreover, respondent

“accepts that the Hobbs Act would not be violated here if Con-

gress had authorized petitioners to engage in [the challenged

administrative actions].” Resp. Br. 46. But, notwithstanding

respondent’s unfounded and pejorative labels for the challenged

regulatory actions, the court of appeals expressly assumed that

“each” of the administrative actions about which respondent

complains was authorized. Pet. App. 17a-18a (emphasis added).

The court nevertheless held that the allegation of an intent to

“extort” made their otherwise lawful regulatory conduct extor-

tion under RICO. /d. at 18a. That holding cannot stand.

As an initial matter, there is no evidence that Congress in-

tended RICO to apply to the types of administrative actions at

issue here, particularly given that those actions are already sub-

ject to review by the APA, the FTCA (in cases of torts, such as

trespass, committed by government officials), and the Tucker

Act (in cases of physical or regulatory takings of property).’ The

* The FTCA waives the United States’ sovereign immunity from suit where

local law would make a private person liable in tort. See United States v. Olson,

126 S. Ct. 510, 512 (2005). States, including Wyoming, recognize the tort. of

trespass and typically define it in terms of the “right to exclude.” See, e.g.,

Edgecomb v. Lower Valley Power & Light, Inc., 922 P.2d 850, 859 (Wyo. 1996).

There are FTCA cases involving trespass claims, see, e.g., Lhotka v. United

6

government itself could not be held liable under RICO for the

administrative actions in question. See, e.g., United States v.

Bonanno Organized Crime Family, 879 F.2d 20, 21-27 (2d Cir.

1989) (United States is not a “person” who can sue or be sued

under RICO, because Congress did not intend “to expose the

government to RICO liability”); ef. United States v. Cooper

Corp., 312 U.S. 600, 604-606 (1941) (employing similar reasoning

in holding that the United States was not a “person” that could

sue or be sued under Section 7 of the Sherman Act); accord

USPS v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 743-745

(2004). Respondent cannot avoid Congress’s decision to exclude

the government from the reach of RICO liability by alleging that

BLM itself “is an enterprise within the meaning of [RICO].” J.A.

76. Nor can he circumvent that limitation attacking BLM offi-

cials acting pursuant to their legal authority and seeking to ob-

tain a reciprocal easement for the “UNITED STATES OF

AMERICA, and its assigns,” see J.A. 90.

Respondent does not attempt to defend the court of appeals’

holding that the applicability of RICO turns solely on the subjec-

tive intent of government officials. See Pet. App. 18a. That hold-

ing is seriously flawed and in itself requires reversal. As this

Court recognized in Harlow v. Fitzgerald, 457 U.S. 800, 816

(1982), “substantial costs attend the litigation of the subjective

good faith of government officials.” “Judicial inquiry into subjec-

tive motivation” often is incapable of resolution without pro-

tracted discovery and fact-finding. Jd. at 817. As a result,

“{iJnquiries of this kind can be peculiarly disruptive of effective

States, 114 F.3d 751, 753-754 (8th Cir. 1997), as well as cases involving both

trespass claims under the FTCA and takings claims under the Tucker Act, see,

e.g., Northwest La. Fish & Game Preserve Comm'n v. United States, 446 F.3d

1285, 1289-1291 (Fed. Cir. 2006). Respondent filed an administrative tort claim.

That claim was denied, and he did not pursue any FTCA action in court.

Similarly, a landowner may challenge the government's denial of a right-of-way

as a taking under the Tucker Act. See, ¢.g., Washoe County v. United States,

319 F.3d 1320, 1325-1328 (Fed. Cir. 2003).

7

government”—causing “distraction of officials from their govern-

mental duties, inhibition of discretionary action, and deterrence

of able people from public service.” /d. at 816-817. Subjecting

government officials to the threat of RICO liability for “lawful

actions” (Pet. App. 18a) depending solely on their subjective

“intent” (ibid.) would impose all of the costs that this Court rec-

ognized in Harlow, not to mention create an especially potent

deterrence to public service given the threat of treble damages.

In any event, it makes no sense to speak of an “extortionate”

or “wrongful” intent in the context of a RICO claim against gov-

ernment officials where those officials acted within their regula-

tory authority and there is no allegation that the officials acted

in exchange for a private gain for themselves or another. See

Pet. 18-23. Indeed, in Evans v. United States, 504 U.S. 255, 260

(1992), the Court observed that “[e]xtortion by the public official

was the rough equivalent of what we would now describe as ‘tak-

ing a bribe.” See R. Perkins & R. Boyle, Criminal Law 528 (3d

ed. 1982) (“Bribery is the corrupt payment or receipt of a private

price for official action.”) (emphasis added).

Respondent now concedes (Br. 6, 14) that it was at least “plau-

sible” for BLM to seek a reciprocal easement from respondent.

That concession alone is fatal to his claim that the alleged at-

tempt to obtain an easement for the United States was “wrong-

ful” and thus extortionate. Moreover, as discussed, respondent

has essentially abandoned reliance on BLM’s cancellation of his

right-of-way as a basis for his RICO and Bivens claims, and in-

stead now relies on a litany of alleged administrative actions that

relate to alleged trespasses by BLM officials seeking to access

interlocked public lands. But there is nothing “extortionate”

about such alleged trespasses. Rather, they boil down to dis-

putes between adjoining public and private landowners about the

existence and scope of the government’s right of administrative

access over private land to inspect and manage interlocking par-

cels of public land. Moreover, as discussed, the IBLA affirmed

the government’s right of administrative access. See p. 4, supra.

8

In addition, respondent’s RICO claim fails because respon-

dent cannot establish that petitioners “obtain|ed]” his property

within the meaning of the Hobbs Act and the common law of-

fense of extortion. See Pet. Br. 22-23. As this Court has ob-

served, “|e]xtortion under the Hobbs Act requires a ‘wrongful

taking of ... property.”” Scheidler v. NOW, 537 U.S. 393, 404

(2003) (internal quotation marks and citation omitted); see Ev-

ans, 504 U.S. at 260 n.4 (quoting definitions). In Scheidler, this

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 (emphasis

added). Thus, the Court concluded that there was “no basis” for

the extortion claim, even though there was “no dispute * * *

that petitioners interfered with, disrupted, and in some instances

completely deprived respondents of their ability to exercise their

property rights.” /d. at 404; see id. at 409 (distinguishing extor-

tion from the common law offense of coercion).

The RICO extortion claim in this case fails for the same rea-

son. The “essence of respondent’s claim” (Br. 35) is that the

government has wot taken his property, but instead has sought

to “coerce” (J.A. 76, 77 (complaint)) him to give property to the

government (which he has not done). Thus, even if it were true

that petitioners “interfered with, disrupted, and in some in-

stances completely deprived respondent[] of [his] ability to exer-

cise [his] property rights,” under Scheidler there would still be

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

Moreover, to the extent that respondent’s claim is that BLM’s

regulatory actions have interfered with his ability to “conduct his

business” (Br. 24), then the alleged interference with property in

this case is even more directly analogous to the alleged interfer-

ence in Scheidler. See 587 U.S. at 401, 404-405.

Ill. RESPONDENT HAS FAILED TO SHOW ANY ACTION-

ABLE VIOLATION OF THE FIFTH AMENDMENT

A. There Is No Basis To Extend Bivens To This New Context

As petitioners explained in their opening brief (Br. 27-37),

respondent’s Bivens claim under the Just Compensation Clause

of the Fifth Amendment is precluded by statutory remedies, as

well as the nature of the Just Compensation Clause itself. At the

very least, there are powerful reasons counseling hesitation in

fashioning such a new constitutional tort.

1. As an initial matter, the Bivens preclusion issue is properly

before the Court. See Pet. Cert. Reply Br. 5-10. The question

whether there is a violation of any actionable right is necessarily

subsumed within the question whether there is the violation of

any right. Qualified immunity would be a largely hollow protec-

tion if government defendants were required to suffer through —

a trial even where it could be determined at the outset purely as

a matter of law that the right allegedly violated is not actionable

at all. See Mitchell v. Forsyth, 472 U.S. 511, 526-528 (1985).

Accordingly, as several courts of appeals have concluded, where

the Bivens action is precluded by the availability of another rem-

edy and the plaintiff therefore has no cause of action, the defen-

dants are entitled to have the action against them dismissed in

conjunction with their qualified immunity appeal.’

In Schweiker v. Chilicky, 487 U.S. 412 (1988), this Court con-

sidered whether plaintiffs claims were actionable under Bivens

where the court of appeals had reversed the dismissal of a case

on the ground of qualified immunity. In addition, in Hartman v.

* Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080, 1083-1084 (Sth Cir. 2005),

cert. denied, 1268. Ct. 1908 (2006); Zimbelman v. Savage, 228 F 3d 367, 370-

371 (4th Cir. 2000); Hill v. Department of the Air Force, 884 F.2d 1318, 1520

(10th Cir. 1989), cert. denied, 495 U.S. 947 (1990); see also Meredith v. Federal

Mine Safety & Health Review Comm'n, 177 F.3d 1042, 1048-1052 (D.C. Cir.

1999): Hiler v. Brown, 177 F.3d 542, 544 (6th Cir. 1999). But see Pelletier v.

Federal Home Loan Bank, 068 F.2d 865, 871 (th Cir. 1992).

10

Moore, 126 S. Ct. 1695, 1702 n.5 (2006), the Court held that it had

jurisdiction in a qualified immunity appeal to address the ele-

ments of a Bivens action for malicious prosecution and retalia-

tory prosecution, because the question of the elements of the

Bivens claim was “directly implicated by the defense of qualified

immunity” and was therefore “properly before [the Court] on

interlocutory appeal.” The same goes here, where the anteced-

ent question is whether any Bivens action is available at all. If

anything, the question whether there is any constitutional tort

is even more appropriate for resolution at this stage than the

“definition of an element of the tort.” /bid. (emphasis added).

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

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

Amendment. The Just Compensation Clause 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. Long before this Court inferred a dam-

ages remedy in Bivens, Congress had provided specific mecha-

nisms (now embodied in the Tucker Act) to effectuate the consti-

tutional guarantee of just compensation. See Williamson

County Reg Planning Comm’n v. Hamilton Bank, 473 US.

172, 195 (1985); Preseault v. ICC, 494 U.S. 1, 11 (1990). There is

no basis for supplanting (or supplementing) those congressio-

nally sanctioned mechanisms with a judicially inferred cause of

action for damages under Biveis.

A damages remedy against individual federal officials, more-

over, is fundamentally inconsistent with the nature of the Fifth

Amendment right to just compensation, which this Court has

repeatedly held is a right that is owed by (and can be violated

only by) the government itself, not by federal officials in their

individual capacity. See, e.g., Hooe v. United States, 218 U.S.

322, 335-336 (1910); United States v. North Am. Transp. & Trad-

ing Co., 253 U.S. 330, 333 (1920). Accordingly, all of the takings

cases on which respondent relies—like all Just Compensation

Clause claims before this one—involve suits against government

11

entities, as opposed to individual officials. See, e.g., Nollan v.

California Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v.

City of Tigard, 512_U.S. 374, 387 (1994); Kaiser Aetna V. United

States, 444 U.S. 164,176 (1979).

Recognizing the new constitutional tort urged by respondent

and his amici also would have a crippling effect on responsible

land management. See Nat’l Wildlife Fed. Amicus Br. 3. Mil-

lions of acres of public lands are interspersed with private lands

in the West. BLM employees thus regularly interact with pri-

vate landowners over matters such as rights-of-way, grazing

privileges, fish and wildlife, recreational permits, mineral and

water rights, cultural resources, and other environmental con-

cerns. BLM administers more than 21,000 grazing permits na-

tionally, including 3500 in Wyoming. Likewise, in 2005, in Wyo-

ming alone, over 1000 rights-of-way actions were issued,

amended, renewed, or rejected by BLM. See BLM Wyoming,

2005 Annual Report to the Public. Dispute over those actions

are subject to appeal to the IBLA and a variety of other estab-

lished remedies. See p. 1, supra. But under respondent’s theory,

any time a private landowner is denied a valuable privilege con-

cerning the use of interspersed public lands (e.g., a right-of-way,

grazing permit, or recreational use permit), he could bypass spe-

cific administrative remedies and bring a Bivens-based Fifth

Amendment action claiming interference with his property rights

(or retaliation for exercising such rights).

3. Inferring a Bivens action for damages against individual

government officials is unnecessary in light of the numerous

statutory and administrative avenues for relief already available

to property owners involved in land use disputes with BLM. For

someone like respondent, it is hardly “damages or nothing.”

Bivens, 403 U.S. at 410 (Harlan, J., concurring). Aside from un-

specified money damages, respondent’s complaint sought declar-

atory and injunctive relief as to the scope of a particular ease-

ment, the government's right of administrative access under the

grazing and recreational use permits, and the validity of certain

12

administrative trespass proceedings against respondent. See

J.A. 81. Those claims, however, are addressed to the rights and

proceedings of the government itself, and therefore are properly

brought only against the government itself. In fact, each element

of the requested declaratory and injunctive relief either was or

could have been the subject of proceedings before BLM and the

IBLA and could have been raised in judicial proceedings under

the APA seeking review of those administrative decisions. Like-

wise, any trespass claims could have been asserted under the

FTCA and any takings claims under the Tucker Act.

This Court’s cases foreclose respondent’s attempt to use

Bivens to circumvent those longstanding avenues of relief ex-

pressly provided by Congress and the agency for the resolution

of precisely the type of land use disputes at issue here. See Bush

v. Lucas, 462 U.S. 367, 385-388 (1983); Chilicky, 487 U.S. at 421-

423; Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 67-69

(2001); see also Pet. Br. 37-40. For more than a quarter of a cen-

tury, this Court has “consistently refused to extend Bivens liabil-

ity to any new context.” Malesko, 534 U.S. at 68; see id. at 78

(Scalia, J., concurring). There is no reason to backtrack here.

B. Respondent Has Not Alleged The Violation Of Any

Right Protected By The Just Compensation Clause

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 other-

wise been triggered by any of the regulatory actions about which

he complains. To the contrary, respondent stresses that the

“essence of [his] claim is not that he was subjected to a taking”

(Br. 35 (emphasis added)), even though he also emphasizes that

his Fifth Amendment claim is based on the Just Compensation

Clause and not the Due Process Clause (Br. 11 n.11). At times

(Br. 21-24) he characterizes the Fifth Amendment right at issue

as a right against retaliation for the exercise of his “property

rights,” including the “right to exclude” the government from his

land. At other times (Br. 24-26) he characterizes it as a right not

13

to be coerced into waiving his right to just compensation. Either

way, the alleged right has no foundation in the text or history of

the Just Compensation Clause or this Court’s cases.”

First, although respondent repeatedly refers to his Fifth

Amendment property rights, it is state law, and not the Fifth

Amendment, that creates and defines substantive property

rights, including the right to exclude. Ruckelshaus v. Monsanto.

Co., 467 U.S. 986, 1001 (1984). The Fifth Amendment protects the

right to exclude others, just as it does other property rights,

through (and only through) its guarantee of just compensation.

Kaiser Aetna, 444 U.S. at 176. But respondent did not exercise

any Just Compensation Clause rights when he sought to exclude

the government from his land by refusing to agree to a reciprocal

easement, or when he complained of alleged government tres-

passes on his land. Rather, at most, respondent sought to exer-

cise his state law property rights on those occasions. The Fifth

Amendment protects citizens from the actual and lawful taking

of such rights without “just compensation,” but it does not create

a constitutional tort for money damages out of any alleged

wrongful interference with those rights. See Pet. Br. 41-44.

Second, whether stated as a retaliation claim or a right

against coerced waiver, respondent’s theory is logically inconsis-

tent and is fundamentally at odds with the actual right protected

by the Just Compensation Clause. Respondent asserts that peti-

tioners’ regulatory actions were not authorized by federal law,

but that they nonetheless violated the Just Compensation

Clause, and as a result, respondent has a retaliation claim for

damages against the individual officials whose actions he chal-

lenges. But respondent cannot have it both ways. If petitioners’

* Contrary to respondent’s suggestion (Br. 26), the administrative actions

at issue bear no resemblance to “military impressments of private property.”

Instead, what distinguishes this case is that respondent is demanding the right

to use and benefit from public lands without agreeing to any of the obligations

that traditionally have accompanied the use of such lands. Nothing in the

history of the Fifth Amendment (or the Third) supports that one-sided demand.

14

regulatory actions were not authorized, then under this Court’s

longstanding case law, the United States has not violated the

Just Compensation Clause, and at most respondent would have

a trespass suit against the individual officials who committed the

unauthorized trespasses. But if those regulatory actions were

authorized and constituted a taking within the meaning of the

Just Compensation Clause, then respondent’s suit would lie

solely against the United States; he could not state a constitu-

tional claim against the individual government officials. See Pet.

Br. 42-43. There is no authority for a substantive right under the

Just Compensation Clause against individual officials.°

Third, establishing such a right against individual government

officials under the Just Compensation Clause would consti-

tutionalize routine land use disputes. Respondent bases his as-

serted Bivens action on the proposition that the “Fifth Amend-

ment protects th{e] state law property interest from invasion in

the absence of a taking for which compensation is available.” Br.

28. Under that approach, any trespass by government officials

on private land—or other alleged invasion of the state law right

to exclude—presumably could give rise to a Fifth Amendment

violation that is actionable in a Bivens action for money damages

against individual employees. More to the point, as the allega-

tions in this case underscore, in theory any number of legitimate

regulatory actions involving the management of public lands

interspersed with private lands could be framed in terms of an

alleged trespass that could give rise to a Bivens action for money

damages. The mere threat of such actions would itself skew nec-

essary land management decisions. See p. 11, sv#pra.

Fourth, the Fifth Amendment cases upon which respondent

primarily relies (see Br. 23-26), most notably Nollan v. Califor-

nia Coastal Commission, supra, Dolan v. City of Tigard, supra,

* Compensation is presumptively available under the Tucker Act for a

taking. But if compensation is not available in a particular instance, then an

injunction could properly issue against the government or its officers in their

official capacity. See Eustern Enterprises v. Apfel, 524 U.S. 498 (1998).

15

and Kaiser Aetna v. United States, supra, do not support his

Just Compensation Clause claim, much less inferring a Bivens

cause of action against individual government officials under that

Clause. To begin with, those cases involved suits against the

government itself and a claim that property had been taken by

regulation, which is absent here. Nothing in those cases sup-

ports awarding compensatory damages against individual gov-

ernment officials as a means of vindicating a property owner’s

right to just compensation for a physical or regulatory taking of

property, much less doing so where no taking is even alleged.

Moreover, Nollan and Dolan involved an express condition on

the property owner’s use of his own land. In both cases, the

property owners were denied a building permit on their land

unless they agreed to some form of a public easement. In con-

cluding that the easement lacked an “essential nexus” to any

legitimate land-use regulation, the Court expressed particular

concern for cases “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 avoid-

ance of the compensation requirement, rather than the stated

police-power objective.” Nollan, 483 U.S. at 841.

Here, there was no public easement (the easement was for

government access only) and no express condition. The only

regulatory action BLM took that can fairly be characterized as

being based on respondent’s refusal to grant the United States

a reciprocal easement was the cancellation of a right-of-way over

public land—which was conditioned on the receipt of the recipro-

cal easement. But, as noted, respondent has shifted his focus

away from that condition (which is unquestionably appropriate,

see Kaiser Aetna, 444 U.S. at 189). All that remains is respon-

dent’s litany of complaints about BLM’s management of public

lands. See Part I, swpra. Those allegations are far afield from

the express condition claims in Nollan and Dolan and, in any

event, nothing in Nollan and Dolan authorizes courts to invali-

date or disregard otherwise lawful administrative actions under

16

the Just Compensation Clause solely because of an alleged sub-

jective intent on the part of public officials to obtain a property

interest for the government.

Finally, neither the Fifth Amendment nor Bivens supports

the creation of a personal damages action for alleged retaliation

based on the administrative actions at issue. See Pet. Br. 37-40.

Like the court of appeals, respondent has failed to identify any

case recognizing an anti-retaliation right grounded in the Just

Compensation Clause. Nor has he provided any reason to extend

that doctrine to the Just Compensation Clause, which has a

unique, textual incentive (the guarantee of “just compensation”

for any taking) that ensures the robust exercise of Fifth Amend-

ment rights. The First Amendment right against retaliation

provides an additional protection insofar as it prevents retalia-

tion against individuals who exercise their Fifth Amendment

rights through petitions for redress. In any event, even if the

Fifth Amendment did incorporate an independent right against

retaliation (which has gone unnoticed for more than 200 years),

the right would not protect against administrative actions—like

those at issue—which do not interfere with any substantive right

protected by the Just Compensation Clause.’

IV. PETITIONERS ARE ENTITLED TO IMMUNITY

At a minimum, petitioners are entitled to qualified immunity

from the novel RICO and Fifth Amendment damages claims

asserted by respondent. Respondent devotes scarcely two para-

graphs of his brief (see pp. 31, 50) to arguing that petitioners are

not entitled to qualified immunity, and that passing effort does

not withstand scrutiny.

‘Respondent suggests (Br. 23-24) that Dolan and Nollan support creation

of a distinct Fifth Amendment anti-retaliation right. That is incorrect. Those

decisions are grounded in the substantive protection against uncompensated

takings—-which respondent does not invoke here. In any event, as discussed

above, Dolan and Nollan are readily distinguishable.

17

1. Even where an existing right is violated, a defendant is

entitled to qualified immunity unless the right was “clearly estab-

lished” when the officer acted, such that “it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “It is

important to emphasize that this inquiry ‘must be undertaken in

light of the specific context of the case, not as a broad general

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam) (quoting Saucier, 533 U.S. at 201) (emphasis added); see

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“the right

* * * must have been ‘clearly established’ in a more particular-

ized, and hence more relevant, sense”). Even assuming petition-

ers violated an existing right under RICO or the Fifth Amend-

ment, respondent has not come close to establishing that such a

right was clearly established in the “specific context of th[is]

case.” Saucier, 533 U.S. at 201.

2. No other court has held that federal officials may be liable

under RICO for exercising their lawful authority in the public

land management context, much less for seeking a reciprocal

right-of-way on behalf of the United States. Pet. Br. 27. And the

one other court of appeals that has addressed the application of

RICO to a claim of overzealous regulation found such an applica-

tion to be “ludicrous on its face.” Sinclair v. Hawke, 314 F.3d

934, 943 (8th Cir. 2003). Respondent does not identify any other

case that could have given petitioners “fair notice” that their

actions could subject them to RICO liability in the situation they

confronted. Indeed, respondent “accepts” that there could be no

RICO violation at all if, as the court of appeals assumed, Pet.

App. 17a-18a, petitioners exercised lawful regulatory authority.

Instead of making any serious attempt to show that petition-

ers violated a “clearly established” right under RICO, respon-

dent contends (Br. 42-45 & n.34.) that the qualified immunity

defense does not apply at all with respect to RICO. That argu-

ment was not pressed or passed on in the courts below, was not

raised in the brief in opposition, and therefore is not properly

18

before the Court. See Aetna Health Inc. v. Davila, 542 U.S. 200,

212 n.2 (2004); Tennessee Student Assistance Corp. v. Hood, 541

U.S. 440, 456 (2004); Sup. Ct. R. 15.2. Respondent’s attempt (Br.

42 n.34) to cloak the argument in a jurisdictional veil is unpersua-

sive. This Court has jurisdiction to review the court of appeals’

decision that petitioners were not entitled to qualified immunity,

regardless of respondent’s arguments concerning the scope of

that immunity as a matter of law. In any event, this belated ar-

gument is without merit.

This Court has explicitly described the reach of qualified im-

munity in statutory as well as constitutional terms, see Harlow,

457 U.S. at 818, and has held that a plaintiff seeking an exception

to the qualified immunity doctrine bears a “heavy burden” be-

cause “the doctrine of qualified immunity reflects a balance that

has been struck ‘across the board,” Anderson, 483 U.S. at 642

(citation omitted). Respondent has not met that burden here.

There is no evidence that Congress intended to strip federal

officials of their qualified immunity from suit under RICO.

Moreover, recognizing qualified immunity in the RICO context

is consistent with the policies and traditions of the common law.

See Wyatt v. Cole, 504 U.S. 158, 163-164 (1992); Tower v. Glover,

467 U.S. 914, 920 (1984). Indeed, the Court has recognized that

executive officials are entitled not just to qualified—but to ab-

solute—immunity as to much of the alleged government miscon-

duct on which respondent’s RICO claim is based (e.g., allegedly

false administrative charges and selective enforcement). See

Butz v. Economou, 438 U.S. 478, 516-517 (1978).*

* The courts of appeals that have addressed the question of official immunity

in the RICO context have generally concluded that RICO did not abrogate the

traditional common law immunities available to executive branch officials. See,

e.g., Cullinan v. Abramson, 128 F 3d 301, 308 (6th Cir. 1997), cert. denied, 523

U.S. 1084 (1998); Linne v. Rideoutte, 971 F 2d 766 (D.C. Cir. 1992) (per curiam)

(unpublished), cert. denied, 507 U.S. 1004 (1993); Thallens, Inc. v. Community

Currency Exch. Ass'n of Illinois, Inc., 729 F.2d 1128, 1129-1130 (7th Cir.), cert.

dismissed, 469 U.S. 976 (1984).

19

The cases respondent cites for the proposition that the Court

has been hesitant to expand the reach of qualified immunity in

the Section 1983 context are inapposite because they involve

private, non-governmental defendants. See Br. 43 (citing

Wyatt v. Cole, supra; Richardson v. McKnight, 521 U.S. 399, 412

(1997)). As this Court has explained, the policy considerations

that support extending the defense to government officials do not

apply in the private context. See Wyatt, 504 U.S. at 167-168;

Richardson, 521 U.S. at 407-412. Furthermore, although respon-

dent suggests that qualified immunity should be inapplicable in

the RICO context to the extent that the qualified immunity and

merits inquiries could overlap, see Resp. Br. 45, this Court has

rejected the proposition that the qualified immunity inquiry

should be disregarded where the merits and qualified immunity

questions overlap, see Sawcier, 533 U.S. at 203; Anderson, 483

U.S. at 643, and instead emphasized the important values served

by faithfully applying an independent qualified immunity inquiry.

3. Nor has petitioner shown the violation of any “clearly es-

tablished” Fifth Amendment right. As respondent himself ac-

knowledges, “there are no reported cases concerning retaliation

against the exercise of Just Compensation Clause rights.” Br.

31; accord Pet. App. 16a (“[N Jo court has previously explicitly

recognized the right to be free from retaliation for the exercise

of Fifth Amendment rights”). Likewise, no court has ever

squarely held that a Just Compensation Clause-based, Fifth

Amendment claim is actionable under Bivens. See Pet. Br. 27-

28. It follows that there is no case law applying the novel Just

Compensation Clause right that respondent asks this Court to

adopt in the context of the management of interspersed public

and private lands. The fact that respondent has failed to show

the violation of any “clearly established” Fifth Amendment right

in the specific context that petitioners faced is underscored by

respondent’s acknowledgment that, at a minimum, the right-of-

way over public land gave petitioners a “plausible basis” to insist

on a reciprocal easement over private land. Resp. Br. 14.

20

CONCLUSION

The judgment of the court of appeals should be reversed and

the case remanded with instructions to dismiss the complaint.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

MARCH 2007