Amicus Curiae Brief — Wilkie v. Robbins

“C6 -

No. 06-219

In The

Supreme Court of the Gnited States

CHARLES WILKIF, et al..

Petitioners,

V.

HARVEY FRANK ROBBINS,

Respondent.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

- -¢

BRIEF OF THE OREGON CATTLEMEN’S

ASSOCIATION AND NEVADA N-6

GRAZING BOARD AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

° oe

PAUL A. TURCKE

Counsel of Record

CARL J. WITHROE

Attorney

Moorrk SMitit BUXTON

& TURCKE, CHTD.

950 West Bannock Street,

Suite 520

Poise, LD 83702

208-331-1800

Attorneys for Aniuct Curiae

TABLE OF CONTENTS

Page

ie I vncsincsiesccntnssincnininstensnnnsintnistannnssiniein ii

en iritietiiceenitreceninennstctipesictantiiniiipeiiiatinn 1

I I oscciccticicinaninssicsecitthintaseiiiaiamistinanibcaia’ 2

PI cccccetsnincsninniniancnnnnnitneninmminatinenants 4

The Administrative Procedure Act Does Not Pre-

clude A Bivens Claim Alleging Fifth Amendment

Violations By Federal Officers Where Those Viola-

tions Do Not Relate To Final Agency Action And

Where There Is No Alternative Remedy..................... 4

I. Respondent Alleged Violations By Individual

Officers Of His Fifth Amendment Rights, Not

Solely That He Is Aggrieved By Final Agency

I crccntscwiininianinigetncinicsinntsinmapennrmnneeenitin 6

II. The APA Makes Reviewable Only Agency

Actions, Not Actions For Constitutional Viola-

tions Against Government Officers, Where The

Conduct Is Unrelated To Agency Action ............ 9

Ill. There Is No Underlying Comprehensive

Regulatory Or Remedial Scheme For Which

The APA Could Provide A Remedy Or Be

Viewed As An Equally Effective Substitute For

Recovery Directly Under The Constitution ....... 14

IV. There Are No Other “Special Factors Counsel-

ling Hesitation In The Absence Of Affirmative

ET CD ccinitcctiicstiisinniiemncniininmciciiniinns 20

ETAL TOE ELSE ELE Se ETE En ROY ae 22

il

TABLE OF AUTHORITIES

Page

CASES

Americopters, LLC v. Federal Aviation Administra-

tion, 441 F.3d 736 (9th Cir. 2006) .............ccccessessseseseees 12

Ballasteros v. Ashcroft, 452 F.3d 1153 (10th Cir.

See iadetavesicemnicipsiiunpsipntatenipeiiniiitadigniesinsinineniaitaneainmisediciainala 12

Bennett v. Spear, 520 U.S. 154 (1997) ...........ccsceeceseseeeees 7,8

Bivens v. Six Unknown Named Agents of Fed.

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

Bush v. Lucas, 462 U.S. 367 (1983) ............. 9, 15, 18, 19, 20

Butz v. Economou, 438 U.S. 478 (1978) ............c0cceceeeseeeeee 22

Camp v. Pitts, 411 U.S. 138 (1973) .......cc.ccccsscccrrsscsssccceoess 12

Carlson v. Green, 446 U.S. 14 (1980)............c0000e. 5, 9, 19, 21

Collins v. Bender, 195 F.3d 1076 (9th Cir. 1999)......... 10, 11

Correctional Servs. Corp. v. Malesko, 534 U.S. 69

Sirsa raat bsicisieideibccinshcepacstspsiiasianieesisiticeaaanademiidessbinkeinibecaiaibianiinitins 4, 20

Davis v. Passman, 442 U.S. 228 (1979) .............. 5, 9, 19, 22

District Props. Assocs. v. The District of Columbia,

ee ee ae Cals GORE Be ccerentertceenctinscieneeminenmnnennnes 12

Federal Power Comm’n v. Transcontinental Gas

Pipe Line Corp., 423 U.S. 326 (1976)...........:cccccceeeee 12,13

Jones v. TVA, 948 F.2d 258 (6th Cir. 1991)........... eee 17

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

eG Be iciciieiisieciadeliciisaiianinitetiascniiabeiindeteialiicsiiaiade 16

Moore v. Glickman, 113 F.3d 988 (9th Cir. 1997) ......... 6, 17

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

Cir. 2005), cert. denied, 126 S. Ct. 1908 (2006)........ 9,16

ili

TABLE OF AUTHORITIES -— Continued

Page

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

SATIRE RE. THEI estinncnscnsininnpnipeinniaienaenneninniinionianpnitucnniiets 16

Saul v. United States, 928 F.2d 829 (9th Cir. 1991)......... 17

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

Sinclair v. Hawke, 314 F.3d 934 (8th Cir. 2003)............... 15

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

PuaPTE ssnicsichtnchcciamiinwtninassiteiidtalaeiciaditeidibinuunsibdaeiunelnpeiiittdieniiies 6, 16

Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988)........... 17

Volk v. Hobson, 866 F.2d 1398 (Fed. Cir. 1989), cert.

denied, 490 U.S. 1092 (1989) ...............ccccssssrrccesssseseres 17

Zephyr Aviation, LLC v. Dailey, 247 F.3d 565 (5th

ey UT vecsniiciiheneindehtdatniisiaibetinliteiensaninlinaiaiaasinniainnanianeee 11

DECISIONS OF THE INTERIOR BOARD OF LAND APPEALS

Carey Horowitz, 138 IBLA 330 (1997)... ceseseneeteeeeeees 13

Laguna Gatuna, Inc., 131 IBLA 169 (1994)... eee 13

Organized Sportsmen of Lassen County, 124 IBLA

See ITED siosascetindiintaenienenteaciaiamaiiintdeiinminnidniiiibtesauebaianseties 13

Rainer Huck, et al., 168 IBLA 365 (2006)..................:00000 13

Rivers Edge Trust, 166 IBLA 297 (2005) ...............ceeseeeees 13

United States v. Miller, 165 IBLA 342 (2005)................... 13

STATUTES

Be es MINTED sciicssensanilsbicieiesisieitaiigntebicicscbeeiethiniaisiainlavadassaiibis 10

BD DE IGS.. © Fie cresssnsscnsssesecuseninntenstntenessetmennnatemevsnemmnctenneniann 1

iv

TABLE OF AUTHORITIES - Continued

Page

REE ar ee NOMEN LO IRF eer 10

a A eae 6, 10, 14

REGULATIONS

a ae 13

1

INTEREST OF AMICI CURIAE'

The Oregon Cattlemen’s Association and the Nevada

N-6 Grazing Board are interested in the question whether

the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,

bars a plaintiff’s Fifth Amendment claim against individ-

ual Federal officers under Bivens v. Six Unknown Named

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

where the alleged violations are unrelated to final agency

action, and where there is no alternative remedy declared

by Congress to be an equally effective substitute for

recovery directly under the Constitution.

Formed in Baker, Oregon in 1916, the Oregon Cattle-

men’s Association represents ranching interests in Oregon.

It exists to promote environmentally and socially sound

industry practices, improve and strengthen the economics

of the industry, and protect industry communities.

The Nevada N-6 Grazing Board represents the inter-

ests of Federal and other public lands ranchers in Nevada.

The Board advocates on their behalf to ensure that live-

stock grazing remains a viable use of the Federal lands. It

also educates the public about the ranching industry.

In the American West, the Federal Government

regulates and is a neighbor to the vast majority of live-

stock ranching operations. Regular interaction between

private individuals and government officials is a way of

life. The relationship between the two is ideally and often

symbiotic. This case, however, concerns the rare occasion

’ This brief is filed with the parties’ consent. This brief is authored

solely by counsel for amici curiae, and no party made a monetary

contribution to the preparation or submission of the brief.

2

where that balance has been lost. It involves a claim by

Respondent Frank Robbins, a rancher and entrepreneur,

alleging certain Bureau of Land Management (BLM)

employees violated his Fifth Amendment rights after he

refused to grant the BLM a right-of-way over his ranch. It

is for this sort of conduct that this Court held in Bivens

that citizens may pursue damages against Federal! officers.

Affirming the decision below on this issue will clarify

the appropriate limits on the relationship between Federal

land managers and landowners. Affirming will encourage

government officials to discharge their duties according to

the law and will give full effect to the guarantees of the

Fifth Amendment. Moreover, affirming will contribute to

the continued opportunity for harmonious relationships

between the government and private landowners. Reversal

on this issue, on the other hand, potentially subjects

landowners to unchecked unconstitutional conduct by

rogue individuals under the color of government authority.

Reversal will thereby erode state law and Fifth Amend-

ment protections.

°

SUMMARY OF ARGUMENT

The Administrative Procedure Act (APA) does not bar

Respondent’s Bivens claim against the individual agency

officers for violations of his Fifth Amendment rights. First,

Petitioners have mischaracterized Respondent’s claim as

solely challenging an agency action. Several of the allega-

tions in Respondent’s complaint do not relate to a final

agency action. Rather, they concern the extraconstitu-

tional conduct of Federal agency officers, for which the

3

APA provides no forum for seeking a remedy. Thus, Re-

spondent can only seek damages.

Second, the APA is not the sort of comprehensive

regulatory scheme that this Court has held w!) preclude a

Bivens claim. The remedial mechanisms of APA judicial

review require agency action — something lacking here.

Judicial review of those actions is limited to very narrow

inquiries that would not disclose the violations alleged by

Respondent. Simply because the BLM took some agency

actions does not mean that its officers’ conduct is necessar-

ily tied to those actions. Much of the conduct complained of

would not supply the grounds for setting aside the BLM’s

formal decisions to revoke the right-of-way and public

lands privileges Respondent had previously enjoyed.

Third, in those cases in which the APA has been held

to preclude a Bivens claim on alternative-remedy grounds,

Congress had provided or authorized an underlying

regulatory scheme. The APA provided the mechanism for

judicial review of decisions resulting from that process.

The oft-cited example is that of a Federal employee suing

his or her employer for damages associated with alleged

constitutional violations connected to employment-related

decisions. The employee has a remedial mechanism to

seek various forms of relief, which does not typically

include damages. If the administrative process leaves the

employee dissatisfied, he or she may seek the available

remedies in court under the APA. But because they have

some remedial mechanism, Bivens is unavailable. Here,

there is no such underlying regulatory scheme that could

provide the alternate remedial mechanism. That the APA

exists to review agency action is no cause to believe that

Congress intended it to foreclose recovery for violations

4

unrelated to agency action. In such cases, where it is

“damages or nothing,” this Court has applied Bivens.

Finally, this case presents no other “special factors

counselling hesitation in the absence of affirmative action

by Congress.” Bivens, 403 U.S. at 396. At its core, this case

is indistinguishable from Bivens and the other cases in

which this Court and the circuit courts have provided

plaintiffs an avenue for seeking relief. Affirming will not

impede government officials in the discharge of their

duties. Respondent seeks no extension of Bivens or any

application of it to a new category of defendants. The

defendants in this case are in no special position such that

permitting a Bivens claim to proceed might compromise

the ability of BLM officials to perform their duties. Per-

mitting a Bivens claim to proceed here will deter any

temptation to abuse government authority and will protect

important constitutional rights. Thus, when the analysis

concludes, Bivens is fully applicable.

¢

ARGUMENT

The Administrative Procedure Act Does Not Preclude

A Bivens Claim Alleging Fifth Amendment Violations

By Federal Officers Where Those Violations Do Not

Relate To Final Agency Action And Where There Is No

Alternative Remedy.

In Bivens, the Court held that plaintiffs may seek

damages from Federal officers for those officers’ alleged

violations of the plaintiff’s constitutional rights. See

Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 67

(2001) (core holding in Bivens recognizes in “limited

circumstances a claim for money damages against federal

5

officers who abuse their constitutional authority”). Bivens’

purpose was twofold: to deter unconstitutional conduct by

Federal officers, id., at 69, and to provide a remedy for

constitutional violations where one did not otherwise exist,

Davis v. Passman, 442 U.S. 228, 245 (1979). Relevant here,

the Court has articulated two instances in which a Bivens

claim is unavailable to a plaintiff: (1) when defendants can

demonstrate “special factors counselling hesitation in the

absence of affirmative action by Congress,” and (2) when

defendants can prove “that Congress has provided an

alternative remedy which it explicitly declared to be a

substitute for recovery directly under the Constitution and

viewed as equally effective.” Carlson v. Green, 446 U.S. 14,

18 (1980) (quotations omitted).’

Neither situation presents in this case. Indeed, this

case presents a context indistinguishable from the con-

texts presented in the cases where this Court and the

circuits have permitted a Bivens claim to proceed. As in

Bivens, as in Davis, as in Carlson, there is no underlying

regulatory scheme for which the APA could provide an

alternate, equally effective remedy.

The Petitioners contend, however, that the APA

provides all the remedy to which Petitioner is entitled.

This argument is fundamentally flawed. The incorrectness

of the Petitioners’ arguments is found in their mischarac-

terization of the Respondent’s claims, their misinterpreta-

tion of this Court’s Bivens jurisprudence, and their

* The Court noted in Bivens that it was not dealing with an explicit

prohibition against the relief sought, 403 U.S. at 397, and in Schweiker

v. Chilicky, 487 U.S. 412, 421 (1988), the Court noted this as another

instance in which a Bivens action would be precluded. Petitioners do

not claim in this appeal that this justification is applicable.

6

misapprehension of the regulatory context in which this

case finds itself before the Court.

I. Respondent Alleged Violations By Individual

Federal Officers Of His Fifth Amendment

Rights, Not Solely That He Is Aggrieved By

Agency Action.

Proper characterization of Respondent’s allegations is

critical to deciding the question addressed in this brief.

Petitioners argue that the APA precludes Respondent’s

Bivens claim against the Federal officers in part, because,

all of Respondent’s claims relate to agency action for which

the APA provides the sole mechanism for seeking a rem-

edy. So, the theory goes, the availability of judicial review

for agency actions — including those actions found to be

contrary to a constitutional right, 5 U.S.C. § 706(2B) -

precludes a Bivens claim. See Chilicky, 487 U.S. 412;

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

ity of judicial review under APA precludes Bivens cause of

action alleging constitutional violations related to agency

decision to remove plaintiff from employment position);

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

(APA precludes Bivens claim against agency rulemakers

where, in part, there is “an explicit remedy for unconstitu-

tional rulemaking in the APA”). This theory is premised in

part on an erroneous view of the claims Respondent has

presented.

It is undisputed that the BLM in this case sought a

right-of-way over Respondent’s property. And it is undis-

puted that Respondent refused to grant the BLM a right-

of-way. So, Respondent alleged, in an attempt to secure the

right-of-way for the BLM, and because they could not do so

or chose not to employ the proper means to do so, the

individual officers used various tactics aimed at forcing

him to do so. In so doing, Respondent alleged, the officers

violated his Fifth Amendment rights. Some agency actions

affecting Respondent were taken. The court of appeals

noted that these claims were properly pursued in an

administrative proceeding. Robbins v. Wilkie, Pet. App.

82a. However, the court of appeals also noted that several

of his claims related to the officers’ intentional misconduct

that was unrelated to agency action. Jd. These claims, the

court wrote, were “properly within the scope of a Bivens

claim.” Jd.

This was entirely correct. Despite the Petitioners’

contentions, not all of Respondent’s claims “relate[] 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.” Brief for Petitioners 33. Nor is

the sole basis of his claim the allegation that an agency

decision has denied him access to public lands or privi-

leges thereon. See id. at 44. Nor can the claims be charac-

terized as non-final agency action. See id. at 34 (citing

Bennett v. Spear, 520 U.S. 154, 177-78 (1997)).

First, Respondent’s refusal to grant the right-of-way

has nothing to do with any agency action. He was not

obligated to grant the right-of-way, and the agency did not

obtain it. Again, the individual officers allegedly engaged

in coercive, extortionate conduct aimed at forcing him to

grant the easement. In the process, the individual officers,

acting under color of Federal authority, allegedly violated

Respondent’s Fifth Amendment rights. This conduct is

wholly separate from and does not relate to any agency

action.

8

Second, those agency actions that were properly the

subject of an administrative proceeding were but small

parts of Respondent’s claims. The complaint is replete

with allegations that other actions by the individual

officers infringed upon protected Fifth Amendment rights.

These actions are wholly distinct from any agency action.

To the extent Petitioners argue that the conduct at

issue in this case somehow relates to non-final agency

action, Brief for Petitioners 34, this, too, is incorrect. The

conduct complained of here would not lead to any agency

action that could be reviewed. The Court explained the

concept of finality in Bennett v. Spear, stating that the

action must “lead to the ‘consummation’ of the agency’s

decisionmaking process — it must not be of a merely

tentative or interlocutory nature ... |aJnd second, the

action must be one by which ‘rights or obligations have

been determined,’ or from which ‘legal consequences will

flow.’” 520 U.S. at 177-78 (citation omitted). No agency

action would flow from the alleged constitutional violations.

The alleged conduct stems from Respondent’s refusal to

grant an easement over his land. Simply because the conduct

involved agency officers who may have been involved in the

BLM’s decision to cancel Respondent’s right-of-way and

public lands privileges does not magically transform the

officers’ conduct into agency action. The cancellation of

Respondent’s right-of-way and his privileges on public lands

are merely collateral, unrelated acts by the BLM.

BLM officials are, of course, authorized to seek recip-

rocal rights-of-way from landowners in exchange for a

right-of-way over public lands. Mere proximity to Federal

land does not bring the landowner within the sphere of

BLM regulation. In this sense Respondent is not an

employee whose relationship with a Federal employer is

9

governed by an elaborate administrative scheme designed

to remedy constitutional violations. See Bush v. Lucas, 462

U.S. 367, 386 (1983) (Federal employee’s Bivens claims

precluded by elaborate administrative system created by

Congress which “provide[d] meaningful remedies for

employees who may have been unfairly disciplined. . . .”).

Nor was the conduct related to a regulatory scheme that

produced an adverse decision against Respondent. See,

e.g., Nebraska Beef, Lid. v. Greening, 398 F.3d 1080 (8th

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

Bivens claim for alleged unconstitutional acts connected to

adverse inspection decisions). Therefore, only the Consti-

tution protects Respondent from abusive government

conduct, just as the Constitution was the sole protection in

Bivens, Davis, and Carlson. If BLM officials may enjoy

unchecked disregard of landowners’ constitutional rights,

the protections embodied in the Constitution become

effectively meaningless. The allegedly coercive or extor-

tionate conduct effectively thus becomes a legitimate tool

in BLM’s belt. This is precisely what Bivens was designed

to protect against.

Il. The APA Makes Reviewable Only Agency

Actions, Not Actions For Constitutional Viola-

tions Against Individual Government Officers,

Where That Conduct Is Unrelated To Agency

Action.

Petitioners assert that the APA provides the sort of

“comprehensive scheme for challenging agency action that

precludes a Bivens remedy with respect to challenging

agency actions like those at issue here.” Brief for Petitioners

31 (emphasis added). They add that the absence or limited

nature of a remedy under the APA does not necessarily

10

mean that Bivens should be available to provide one. Jd. at

34-35. As a general statement, this may be true. Before the

availability or nature of a remedy becomes relevant, it

first must be asked whether the APA even provides Re-

spondent the forum to seek any remedy. The answer is, of

course, no.

The APA makes reviewable two types of actions: (1)

“lalgency action made reviewable by statute” and (2) “final

agency action for which there is no adequate remedy in a

court.” 5 U.S.C. § 704 (emphasis added). “Agency action,”

as it is defined in the APA, “includes the whole or part of

an agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act{.]” 5 U.S.C.

§ 551(13) (emphasis added). The APA directs a court to

“hold unlawful and set aside agency action, findings, and

conclusions” found to be contrary to constitutional right. 5

U.S.C. § 706(2)(B) (emphasis added). So, by its plain text,

the APA allows review only of agency action for which

there is no adequate remedy in court.

Because APA review is limited to review of agency

action, it follows that APA review does not include claims

against officers whose conduct is unrelated to an actual

agency decision. Thus, Bivens provides a forum for a

plaintiff to seek damages. Collins v. Bender, 195 F.3d 1076

(9th Cir. 1999), illustrates this distinction. Collins was

brought by a Drug Enforcement Agency employee placed on

administrative leave due to allegations of potentially

dangerous conduct. 195 F.3d at 1077. Upon commencement

of Collins’ leave, Collins’ supervisor, Bender, ordered DEA

agents to retrieve from Collins’ home government property

and Collins’ personal firearms. Jd. Collins was eventually

terminated. Jd. In his Bivens complaint, Collins alleged that

the agents violated certain of his constitutional rights. Jd.

11

Bender, the supervisor, claimed that the search was part of

a “personnel action,” for which a remedy would lie pursu-

ant to the Civil Service Reform Act. Jd. at 1078. The

district court agreed. Jd. The court of appeals reversed,

holding that the definition of “personnel action” did not

‘nclude the search of the employee’s home for his personal

property. Jd. at 1080. In other words, simply because there

was some relationship, parts of which were covered by the

CSRA, not every act done by supervisor to employee was

so covered.

Importantly, the court observed that “Congress in-

tended for the CSRA to be the sole mechanism through

which employment disputes are settled,” not to “deputize

government supervisors as chieftains of security forces

that police the private lives of their employees subject only

to some administrative oversight” or to “shoehorn into the

CSRA every odd occurrence where a supervisor forms and

leads such a renegade posse.” 195 F.3d at 1080.

Other courts, in different but analogous contexts,

have also noted the distinction between conduct related

to agency action and conduct not related to agency action.

See Zephyr Aviation, LLC v. Dailey, 247 F.3d 565, 571-72

(5th Cir. 2005) (declining to impose judicial exhaustion

requirement on plaintiff's Bivens claim of extra-

procedural and unconstitutional actions by FAA inspectors

where conduct complained of did not “implicate an FAA

order that is currently in place” and where administrative

appeal process would not provide the relief sought);

° "The court noted that based on the pleadings, the only question

was whether the Aviation Act required a plaintiff to exhaust adminis-

trative remedies before filing a Bivens claim, and not whether it

displaced a Bivens claim altogether. 247 F.2d at 570 n.5.

12

Americopters, LLC v. Federal Aviation Administration, 441

F.3d 726, 737-38 (9th Cir. 2006) (declining to apply collat-

eral attack doctrine on plaintiff’s constitutional claims

against FAA where no order was then pending, noting that

“(a] damages claim in district court is not fairly character-

ized as an ‘end-run’ around an order — or the procedures

and merits surrounding it — if the order is no longer

pending or, for lack of a better word, ‘live’”); Ballasteros v.

Ashcroft, 452 F.3d 1153, 1160 (10th Cir. 2006) (REAL ID

Act limited Federal district court’s review of Board of

Immigration Appeals’ removal orders, and “no remedy for

the alleged constitutional violations would affect the BLA’s

order for removal,” therefore, the court could not consider

Fourth Amendment claim — “[a]Jny remedy available would

lie in a Bivens claim”); District Props. Assocs. v. The

District of Columbia, 743 F.2d 21, 26 (D.C. Cir. 1984)

(where District of Columbia APA granted review to “affirm,

modify, or set aside the order or decision complained of,”

claims against agency officials that were “relatively

unrelated to the formal decisionmaking process” were

outside scope of judicial review provision).

Much like in the cases just cited, the conduct at issue

in this case would not supply any grounds for setting aside

the BLM actions. Assuming the actions at issue are the

BLM’s cancellation of the right-of-way and Respondent’s

other public lands privileges, the nature of judicial review

would provide no forum for the constitutional violations to

be addressed. Judicial review is confined to the record.

Federal Power Comm’n v. Transcontinental Gas Pipe Line

Corp., 423 U.S. 326, 331-32 (1976); Camp v. Pitts, 411 U.S.

138, 143 (1973). The APA provides no opportunity for

discovery, no trial, and no introduction of evidence beyond

what the agency compiled during its decisionmaking

13

process. To the extent the Petitioners claim that the IBLA

would provide a forum for the constitutional claims to be

addressed, this is incorrect. The IBLA does not have

jurisdiction to consider Fifth Amendment violations

against agency officers where that conduct is not con-

nected to an agency action. It decides appeals to the

Department of the Interior from decisions related to the

use and disposition of public lands and their resources,

and a handful of items not relevant in this case. See 43

C.F.R. § 4.1 (2006). IBLA panels have declined to consider

constitutional claims or provide relief for alleged violations

by officers of individuals’ constitutional rights. See Rivers

Edge Trust, 166 IBLA 297 (2005) (“the Board, as a quasi-

judicial body within the Department of the Interior, has no

authority to adjudicate whether constitutional rights have

been violated, or to afford any relief therefrom”); see also

United States v. Miller, 165 IBLA 342 (2005); Rainer Huck,

et al., 168 IBLA 365 (2006); Organized Sportsmen of

Lassen County, 124 IBLA 325 (1992); Laguna Gatuna,

Inc., 131 IBLA 169 (1994); Carey Horowitz, 138 IBLA 330

(1997).

Because the administrative adjudicatory body could

not hear the claims or provide any relief, the district court,

reviewing the administrative record, would also not be

able to hear the claim or provide relief. See Transcontinen-

tal Gas Pipe Line Corp., 423 U.S. at 332 (“The focal point

for judicial review should be the administrative record

already in existence, not some new record made initially in

the reviewing court”). Hence, the APA presents no option

for bringing Respondent’s claims or evidence, let alone an

alternate remedy.

14

Ill. There Is No Underlying Comprehensive Regu-

latory Or Remedial Scheme For Which The APA

Could Provide A Remedy Or Be Viewed As An

Equally Effective Substitute For Recovery Di-

rectly Under The Constitution.

A coherent theme strings together the decisions of this

Court and the circuits declining to extend Bivens: the

existence of an underlying regulatory scheme which

includes the availability of judicial review. Justice

O’Connor captured this theme in Chilicky and summa-

rized it thusly: “When the design of a Government pro-

gram suggests that Congress has provided what it

considers adequate remedial mechanisms for constitu-

tional violations that may occur in the course of its ad-

ministration, we have not created additional Bivens

remedies.” 487 U.S. at 423. It is this theme the Petitioners

say is present here. According to them, APA is yet another

example of a comprehensive regulatory scheme with

remedies — however inadequate — that precludes a Bivens

claim.

Petitioners’ argument fails here. Petitioners point out

that section 706(2)(B) of the APA allows a court to set

aside agency action that is contrary to a constitutional

right. They argue that “Respondent was entitled, there-

fore, to raise any constitutional challenge he may have had

to petitioners’ actions in a suit of judicial review under the

APA....” Brief for Petitioners 35. But it is clear that

Respondent could not have invoked the jurisdiction of the

Federal district courts because there was no action to

review. Additionally, the APA is far from the comprehen-

sive regulatory scheme that this Court and the circuits

hold will preclude a Bivens claim. The Petitioners’ argu-

ment otherwise is flawed for two reasons. First, the APA is

15

not a stand-alone regulatory scheme that would provide

the alternative remedy necessary to preclude a Bivens

claim, and no authority cited by the Petitioners relied

solely on the APA to preclude a Bivens claim. Second, the

APA is not the remedial component of an underlying

regulatory scheme, which is present in — and critical to —

every single case the Petitioners cite.*

The Petitioners claim that “those circuits that have

confronted the issue have held that the availability of

relief under the APA generally precludes a Bivens action

for damages.” Brief for Petitioners 31. That is not the

complete story. Petitioners argue also that “when a com-

prehensive statutory remedial scheme exists, it does not

matter whether a particular plaintiff will have a remedy

under that scheme.” Jd. at 31. This is true, but it does not

apply to this case: There is no comprehensive statutory

remedial scheme. In each case the Petitioners cite, there

existed an underlying regulatory scheme, and the agency

decisions which encompassed the complained-of conduct

produced as part of that scheme were subject to judicial

review under the APA. The fact in some of those cases that

the remedy was in plaintiff’s mind less desirable did not

change the analysis. Because Congress had provided an

alternative remedy, which it viewed as equally effective,

the lack of plaintiff’s desired remedy was no reason for the

court to create one for them.

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

court followed Bush v. Lucas and Schweiker v. Chilicky,

* To the extent the Petitioners argue that the Interior Board of

Land Appeals (IBLA) provides the underlying remedial! scheme for

hearing complaints like Respondent’s, this is incorrect. IBLA jurisdic-

tion is quite limited. See discussion of IBLA jurisdiction, supra.

16

and dismissed a Bivens action by the owner of an insolvent

bank against the Comptroller General. The court held that

the comprehensive regime regulating banks, plus the

availability of APA judicial review for adverse decisions

precluded the suit. 314 F.3d at 942. Similarly, in Nebraska

Beef, supra, the court dismissed a Bivens claim, in part,

because “the USDA has promulgated a comprehensive

regulatory scheme pursuant to the [Federal Meat Inspec-

tion Act] that includes the right to judicial review under

the APA.” 398 F.3d at 1084. In Miller v. United States Dep't

of Agric., 143 F.3d 1413 (11th Cir. 1998), the court held

that Bivens was unavailable to a Federal worker challeng-

ing his termination decision because that termination

decision was subject to judicial review under the APA. 143

F.3d at 1416. In Sky Ad, supra, the court denied a Bivens

remedy “because the presence of an explicit remedy for

unconstitutional rulemaking in the APA, Congress’ rejec-

tion of tort remedies for unconstitutional rulemaking in

the [Federal Tort Claims Act], and the overall unprece-

dented nature of appellants’ tort theory” supplied the

special factors counselling hesitation. 951 F.2d at 1148. In

Sky Ad, the rulemaking provisions of the APA were the

underlying regulatory scheme. The APA provided for

review of unconstitutional rulemaking. There is no corre-

sponding scheme in this case.

It is clear that the absence or imperfectness of a

remedy will preclude a Bivens claim when there is a

comprehensive regulatory scheme in place. In Pipkin v.

United States Postal Serv., 951 F.2d 272 (10th Cir. 1991),

the court denied Bivens relief because “Congress has

provided a comprehensive procedure to address postal

employees’ constitutional claims arising from their em-

ployment relationship with the USPS....” 951 F.2d at

17

275-76. Jones v. TVA, 948 F.2d 258 (6th Cir. 1991), held

similarly that as a TVA employee covered by the Civil

Service Reform Act, the plaintiff’s Bivens claim was

barred. 948 F.2d at 264. The court noted that “even if no

remedy at all has been provided by the CSRA, courts will

not create a Bivens remedy.” Jd. This statement came in

the context of some remedial structure.

In Moore v. Glickman, supra, the Ninth Circuit re-

fused to apply Bivens to an employee whose termination

decision was subject to APA review. Again, however, the

APA was not the sole regulatory scheme at issue. There

was an elaborate administrative scheme under which the

employee could seek review of the termination decision.

The fact that the employee thought the available remedies

incomplete was of little effect, however, since the adminis-

trative system provided “an alternative scheme and some

indication that Congress deliberately elected not to include

complete relief.” 113 F.3d at 994 (quoting Chilicky, 487

U.S. at 423). And in Saul v. United States, 928 F.2d 829

(9th Cir. 1991), Volk v. Hobson, 866 F.2d 1398 (Fed. Cir.

1989), cert. denied, 490 U.S. 1092 (1989), and Spagnola v.

Mathis, 859 F.2d 223 (D.C. Cir. 1988) (en banc), there

existed some administrative mechanism for addressing

complaints of constitutional violations. Here again, how-

ever, neither the APA nor any other regulatory scheme has

been provided.

The circuits have properly grasped the distinction

between claims for which Bivens is available, and those for

which it is not. In Chilicky, for instance, Congress had

provided social security disability claimants with a fairly

extensive administrative appeals process, which included

the right of judicial review. See 487 U.S. at 424. Thus, a

claimant could assert constitutional violations in an effort

18

to recover benefits. Jd. Because Congress had spoken to

the matter of remedies, the Court deferred to that body’s

judgment.

The Court’s explanation of the issue in Bush v. Lucas,

462 U.S. 367 (1983), clearly identifies the relevant inquiry:

The question is not what remedy the court

should provide for a wrong that would otherwise

go unredressed. It is whether an elaborate reme-

dial system that has been constructed step by

step, with careful attention to conflicting policy

considerations, should be augmented by the crea- ,

tion of a new judicial remedy for the constitu-

tional violation at issue.

Bush, 462 U.S. at 388. In Bush the Court declined to

provide a Bivens cause of action to a Federal employee

because his claims “ar[ose] out of an employment relation-

ship that [was] governed by comprehensive procedural and

substantive provisions giving meaningful remedies against

the United States... .” 462 U.S. at 368. After being reas-

signed, the employee made several statements that were

“highly critical of the agency” with which he was em-

ployed. Jd. at 369. He was demoted. Jd. at 370. The em-

ployee pursued the administrative appeal process, and

was eventually reinstated with full back pay and retroac-

tive seniority. Jd. at 372. Under the law then in effect, he

could have sought judicial review had the administrative

process not resolved in his favor. Jd. at 387. Bivens was

unavailable to the plaintiff, “[gliven the history of the

development of civil service remedies and the comprehen-

sive nature of the remedies currently available... .” 462

U.S. at 388.

19

Contrast Bush and Chilicky with Davis v. Passman,

Carlson v. Green, and Bivens itself. In Davis, the termi-

nated employee had no congressionally-provided remedial

mechanisms: “When § 717 was added to Title VII to

protect Federal employees from discrimination, it failed to

extend this protection to congressional employees such as

petitioner who are not in the competitive service.” Davis,

442 U.S. at 247. Importantly, the Court observed that “of

course, were Congress to create equally effective alterna-

tive remedies, the need for damages relief might be obvi-

ated.” Id. at 248. In Carlson, the Court found that even

with the existence of the Federal Tort Claims Act, Bivens

remained available to a plaintiff seeking damages for

Eighth Amendment violations.”

Bivens counsels a similar result. Mr. Bivens alleged

that agents of the Federal Bureau of Narcotics, acting

under claim of Federal authority, entered his abode,

arrested him, manacled him in front of his wife and

children, and threatened to arrest the whole family. 403

U.S. at 389. The agents then took Mr. Bivens to the

courthouse, interrogated him, booked him, and subjected

him to a visual strip search. Jd. In holding in Mr. Bivens’

favor, the Court identified, among other rationales, the

fact that the Court faced no “explicit congressional decla-

ration that persons injured by a federal officer’s violation

of the Fourth Amendment may not recover money dam-

ages from the agents, but must instead be remitted to

another remedy, equally effective in the view of Congress.”

Id. at 397. Congress had provided no such remedy. As

* It does not appear from the opinion that there was any underly-

ing regulatory scheme designed by Congress to provide a remedial

mechanism for those violations.

20

Justice Harlan put it, “[flor people in Bivens’ shoes, it is

damages or nothing.” Jd. at 410 (Harlan, J., concurring).

This Court’s cases instruct that where there is no

underlying regulatory scheme, where there is no congres-

sionally provided alternative remedy — where it is “dam-

ages or nothing” — Bivens affords plaintiffs the opportunity

to seek a remedy for constitutional violations. Even in the

cases declining a Bivens remedy, the Court has noted that

where it is “damages or nothing,” Bivens is available. See

Malesko, 534 U.S. at 69; Chilicky, 487 U.S. at 425-27. It

was, in significant part, because of the existence of an

alternative remedy that Bivens was unavailable for the

plaintiffs in Bush and Chilicky and Malesko.

As the court of appeals observed in this case, some of

the events involved agency actions for which Bivens was

unavailable. But for other conduct, no congressionally-

provided scheme regulated the relationship between

Respondent and the BLM officials. In such a case, Bivens

is available to vindicate the important protections at

stake.

IV. There Are No Other “Special Factors Counsel-

ling Hesitation In The Absence Of Affirmative

Action By Congress.”

Neither the existence of the APA, nor the position of

the Petitioners, nor anything about this case provides the

“special factors counselling hesitation in the absence of

affirmative action by Congress.” First, applying Bivens

here is hardly the radical expansion of Bivens “in direct

contravention of this Court’s precedents and principles of

judicial restraint” as claimed by Petitioners. Indeed, it is

fully consistent with this Court’s Bivens jurisprudence.

21-

- 4

There is no alternate remedy nor any underlying regula-

tory scheme that would indicate Congress intended the

APA to substitute for recovery directly under the Constitu-

tion.

Second, a holding of this Court that the APA does not

preclude Respondent’s Bivens claims will not impede BLM

officials as they discharge their duties any more than Mr.

Bivens’ claim against the narcotics officers impeded law

enforcement officials’ ability to discharge theirs. Claims

that if this Court affirms the court of appeals’ decision,

government officials will become “reticent” or “downright

afraid” to perform their job duties, see Brief of Amici

Curiae National Wildlife Federation, et al. 5, are simply

-unfounded. Qualified immunity still exists for those agents

who operate within the bounds of the law, and this is an

appropriate safeguard. See Carlson, 446 U:S. at 19.

Third, in the vast expanse of the West, personal

relationships necessarily develop between agency officials

and landowners. BLM officials in the West often live in or

near the very communities in which the ranchers live.

This relationship provides the deterrence justification

articulated in Carlson. Not only will a government official

be more likely to conform his or her conduct to the Consti-

tution, Carlson, 446 U.S. at 21, but, perhaps, if each

person, landowner and government official alike, knows he

or she is personally accountable, mutual respect has a

better chance of prevailing.

Finally, the interests at stake far outweigh the poten-

tial liability officials might face. Bivens acts as a check on

abusive governmental behavior where one does not other-

wise exist. Allowing a Bivens claim to proceed here will

say nothing to government officials except that they must

—<

22

conform their actions to the Constitution, as must every

other Federal employee. See Davis, 442 U.S. at 246 (“All

officers of the government, from the highest to the lowest,

are creatures of the law, and are bound to obey it”) (quot-

ing Butz v. Economou, 438 U.S. 478, 505 (1978)) (internal

quotation omitted).

¢

CONCLUSION

In a case such as this, where there is no underlying

regulatory scheme, where the APA provides no alternative

remedy for the violations alleged, and where there are

important constitutional protections at stake, Bivens is the

only mechanism available to vindicate those rights. Affir-

mance requires no extension of Bivens and no application

of it to a new set of defendants. Therefore, the APA does

not preclude Respondent’s Bivens claim. The decision of

the court of appeals should be affirmed.

Respectfully submitted,

PAUL A. TURCKE

Counsel of Record

CARL J. WITHROE

Attorney

Moore SMITH BUXTON &

TURCKE, CHTD.

950 West Bannock Street

Suite 520

Boise, ID 83702

. 208-331-1800

Attorneys for Amicus Curiae

Oregon Cattlemen’s

Association and Nevada

N-6 Grazing Board