Opposition Brief — Western Radio Services Co. v. United States Forest Service

No. 09-772

Jn the Supreme Court of the Gnited States

WESTERN RADIO SERVICES COMPANY, ET AL.,

PETITIONERS

Vv.

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KLENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Atturney General

MICHAEL S. RAAB

KELSI BROWN CORKRAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Petitioners, who operate communications facilities on

land managed by the United States Forest Service,

brought suit alleging that the Forest Service withheld

action on a special use application for “side-hill” anten-

nae and failed to respond to complaints lodged against

other lessees, in violation of the Administrative Proce-

dure Act (APA), 5 U.S.C. 701 et seq. Petitioners also

sued six former and present Forest Service employees

under Bivens v. Six Unknown Named Agents of Federal

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

alleged that the employees conspired to delay action on

the application and failed to enforce the applicable Site

Plan against other lessees in retaliation for petitioners’

previous litigation against the Forest Service, in viola-

tion of the First Amendment. They also alleged that the

employees treated them less favorably than other les-

sees, in violation of the Fifth Amendment. The question

presented is:

Whether the court of appeals erred in declining to

extend Bivens remedies in this case on the ground that

the APA provides an adequate, alternative remedy for

the agency’s alleged delays and inaction.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bivens v. Sic Unknown Named Agents of Fed.

Bureau of Narcotics, 408 U.S. 3888 (1971) 2.2.2.2... 3, 6

Bush v. Lucas, 462 U.S. 367 (1983) ...............205. 10

Carlson v. Green, 446 U.S. 14 (1980) ........00.....2... 10

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

8 PP Pe rere Terror ee Tere ye Prey eee eee Peer 6

FDIC v. Meyer, 510 U.S. 471 (1984) .......ccecscccces 5

Miller v. United States Dep't of Agric. Farm Servs.

Agency, 143 F.3d 1413 (11th Cir. 1998) ............. 11

Munsell v. Department of Agric., 509 F.3d 572 (D.C.

ee PEE PETE CET CPO rT ere Perr or rere 1]

Nebraska Beef, Ltd. v. Greening, 398 I'.3d 1080

(8th Cir. 2005), cert. denied, 547 U.S. 1110 (2006) .... 11

Schweiker v. Chilicky, 487 U.S. 412 (1988) ....... 6, 7,9, 10

Wilkie v. Robbins, 551 U.S. 537 (2007) .. 2.2... 5, 6, 7, 8, 11

Constitution and statutes.

U.S. Const.:

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pS ae a ee ey he ee a ee Be 6

I ee en er ee ae ne 4

Statutes—Continued:

Page

Administrative Procedure Act, 5 U.S.C. 701 et seq 3

eh es See eles eeu dak Guwie nee s 7

5 U.S.C. 706 7

» U.S.C. 70601)-(2)

Jn the Supreme Court of the Ainited States

No. 09-772

WESTERN RADIO SERVICES COMPANY, ET AL.,

PETITIONERS

v

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FORTHE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-22

is reported at 578 F.3d 1116. The opinion of the district

court (Pet. App. 23-36) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 21, 2009. A petition for rehearing was denied on

October 5, 2009 (Pet. App. 37). The petition for a writ of

certiorari was filed on December 29, 2009. The jurisdic

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner Western Radio Services Company is an

Oregon corporation solely owned by petitioner Richard

I.. Oberdorfer (collectively, Western Radio). Gray Butte

(1)

2

is an 80-acre area within the Ochoco National Forest in

Oregon. The United States Forest Service manages

that area and leases various sites to electronic communi-

‘ations companies, including Western Radio, Slater

Communications and Electronics, and Day Wireless Sys-

tems. Each lease agreement incorporates the terms of

the Gray Butte Electronic Site Management Plan (Site

Plan), which “establish[es] a guide for the land manager

to base decisions concerning the development of the site

in conformance with” stated environmental objectives.

Pet. App. 3, 24-25 (brackets in original).

Western Kadio first constructed radio towers on

Gray Butte in 1978 and, in later years, has filed special

use applications with the Forest Service to expand its

capacity. In 1991, the company requested authorization

to install two antennae “to the side-hill” of their leased

property. The Forest Service did not respond to the

application and, in October 1998, Western Radio submit-

ted another request, again seeking approval for two

side-hill antennae. In December 1998, the Forest Ser

vice denied the application. Western Radio appealed

and the Forest Service withdrew its decision. Over the

next eight years, the Forest Service requested addi-

tional documents and clarifications but did not take ac-

tion on the application. In January 2006 (while this case

was pending in the district court), Western Radio sub-

mitted a revised application seeking permission to con-

struct four antennae and, after preparing an environ-

mental assessment, the Forest Service issued a decision

allowing the company to build two of the four proposed

antennae. Pet. App. 3-6, 24-26. None of the individual

respondents were involved in Western Radio’s requests

prior to 2002. /d. at 32 n.4.

3

Over the years, Western Radio also complained to

the Forest Service about other Gray. Butte lessees’ fail-

ure to comply with the Site Plan. and requested. that the

Forest Service enforce strict compliance. In August

2000, for example,. Western Radio informed a Forest

Service employee that Slater Communications was not

in compliance. with the Site Plan and that it suspected

other lessees were also noncompliant, but that absent

inspection (which the.lessees would not permit) it could

not specify the nature of the violations: Western Radio

requested permission to participate in the agency’s site

inspection. In 2002; the Forest Service inspected the

sites on its own and concluded that only minor deficien-

cies existed at the other lessee sites. Pet. App. 4-5.

Again, none of the individual respondents were involved

prior to 2002. /d. at 32 n.4.

Beginning in 1986, Western Radio.pursued several

administrative appeals challenging other Forest Service

decisions. And; in 1993, petitioners filed several law-

suits contesting the agency’s permitting and leasing de-

cisions. -Pet. App. 3; C.A. E.R. 161.

2. In 2004, petitioners filed this suit under the Ad-

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

and Bivens v. Six Unknown Named Agents ‘of Federal

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

Forest Service and six of its current and former employ-

ees. ‘Pet. App. 2;:24. Petitioners’ APA claims alleged

that the Forest Service unlawfully. withheld and unrea-

sonably delayed action on the side-hill antennae applica-

tion and on the complaints lodged against other Gray

Butte lessees, and that such actions were arbitrary, ca-

pricious and contrary to law. C.A. E.R. 32-34. -The

Bivens claims alleged that from 2002 until the present,

the individual Forest Service employee-respondents

4

conspired to intentionally delay action on the side-hill

antennae application, failed to stop other lessees’ non-

compliance with the Site Plan, and refused to allow

Western Radio to conduct site inspections of the other

facilities—and that those actions were undertaken in

retaliation for petitioners’ previous litigation against the

Forest Service, in violation of the First Amendment. /d.

at 31-32. They also alleged that respondents violated

the Fifth Amendment because they treated Western

Radio less favorably than other lessees without a ratio-

nal basis. /d. at 34-35.

Respondents moved for summary judgment. The

district court granted summary judgment on the APA

claims. Pet. App. 35-36. As noted above, while the liti-

gation was pending in the district court, the Forest Ser-

vice approved, in part, Western Radio’s side-hill anten-

nae application. The court explained that if petitioners

wished to challenge that decision, they would need to

exhaust their administrative remedies consistent with

the Forest Service regulations, and it dismissed the

APA claims as moot. /d. at 36.

On the constitutional claims, the court concluded that

“the APA provides an alternative and comprehensive

remedy” and because petitioners’ complaints “of delay

and inaction on the part of [respondents] in processing

Western Radio’s application for sidehill antennas, [are]

complaints that the APA was specifically crafted to re-

dress,” no implied Bivens remedy was available. Pet.

App. 32-33. Moreover, the court found that, on the mer-

its, petitioners presented no evidence actually suggest-

ing retaliation on the part of the individual respondents,

or suggesting that the respondents treated Western

Radio any differently than its competitors or did so

without a rational basis. /d. at 34.

5

3. Petitioners appealed only with respect to the Biv-

ens claims. Pet. App. 6. At the outset, the court of ap-

peals observed that no Bivens remedy was available

against the Forest Service. /bid. (citing FDIC v. Meyer,

510 U.S. 471, 484 (1994) (declining to extend Bzvens to

claims against federal agencies)). As to the individual

Forest Service employees, the court applied the two-

step analysis set forth in Wilkie v. Robbins, 551 U.S.

537, 550 (2007), and found the first step dispositive. As

the court explained, the first question is “whether the

existence of ‘any alternative, existing process’ available

to [petitioners], or other indication of Congressional in-

tent, raises the inference that Congress ‘expected the

Judiciary to stay its Bivens hand.’” Pet. App. 13-14

(quoting Wilkie, 551 U.S. at 550, 554). The court ob-

served that “Wilkie itself” strongly suggested that the

APA constitutes such a process; just as the ranch owner

in Wilkie “had an adequate remedy for the ‘unfavorable

agency actions,’ because, ‘[f]or each [such] claim, admin-

istrative review was available, subject to ultimate judi-

cial review under the APA,’” zd. at 14 (brackets in origi-

nal) (quoting Wilkie, 55) U.S. at 551-552), so too for peti-

tioners’ claims “based on agency actions and inactions.”

Ibid. This Court moved on to step two in Wilkie, ex-

plained the court, only because of the “patchwork” of

remedies available for the variety of non-administrative

claims alleged in that case. /bid.

The court of appeals then independently concluded

that the APA is, in fact, an adequate alternative remedy:

it is a comprehensive remedial scheme for review of final

agency action, authorizing a court to, inter alza, “compel

agency action unlawfully withheld or unreasonably de-

layed” and “hold unlawful and set aside agency action

* * * found to be * * * contrary to constitutional

6

right, power; privilege, or immunity.” -Pet.,App. 15

(quoting 5 U.S.C. 706(1)-(2)). The court also considered

and rejected each of petitioners’ arguments to the con-

trary. /d. at 16-22. In the end,-the court held: that be-

cause petitioners’ “claims‘against the individual [respon-

dents] are based on Forest Service actions or inactions,

* * * the remedies available to [petitioners] under the

APA constitute an ‘alternative, existing process’.that

‘amounts to a convincing reason for the: Judicial. Branch

to refrain from providing a new and freestanding rem-

edy in damages.’” Jd. at 22 (quoting Wilkie, 551 U.S. at

550). The court declined to decide “whether a Bivens

right of action is applicable to a claim alleging a violation

of the First Amendment” in any case. /b2d.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other

court of appeals. Further review is not warranted.

1. In Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971), this Court

recognized a cause of action for damages against federal

law-enforcement agents who allegedly violated the plain-

tiffs Fourth Amendment rights. The Court’s more re-

cent decisions, however, “have responded cautiously to

suggestions that Bivens remedies be extended into new

contexts.” Correctional Servs. Corp. v. Malesko, 534

U.S. 61, 68-69 (2001) (quoting Schweiker v. Chilicky, 487

U.S. 412, 421 (1988)); see Wilkie v. Robbins, 551 U.S.

537, 550 (2007) (“{I]n most instances [this Court] has

found a Bivens remedy unjustified.”). This Court has

emphasized that “any freestanding damages remedy for

a claimed constitutional! violation” is “not an automatic

entitlement.” Wilkie, 551 U.S. at 550. To the contrary,

7

when “the design of a Government program suggests

that Congress has provided what it considers adequate

remedial mechanisms for constitutional violations that

may occur in the course of its administration,” this

Court has not created additional remedies under Bivens.

Schweiker, 487 U.S. at 423.

In Wilkie, the Court set forth a two-step inquiry to

decide whether to extend a Bivens remedy to new con-

stitutional interests and contexts. 551 U.S. at 550. The

first question is “whether any alternative, existing pro-

cess for protecting the [plaintiff's] interest amounts to

a convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in dam-

ages.” Jbid. If so, the court should “stay its Bivens

hand.” /d. at 554. If there is no such adequate, alterna-

tive remedy, however, a Bivens action may still be inap-

propriate if “special factors counsel[] hesitation.” Jd. at

550.

a. The court of appeals correctly determined, at step

one of the inquiry, that petitioners have an alternative,

adequate remedy for relief under the APA that fore-

closes an independent Aivens remedy in this case. Pet.

App. 13-22. As the court explained (7d. at 14-15), the

APA expressly declares itself to be a comprehensive

remedial scheme for claims of agency action or inaction.

See 5 U.S.C. 702. Congress has provided through the

APA the means of raising challenges, including constitu-

tional challenges, to the type of agency actions at issue

here. Section 706 expressly authorizes a reviewing court

to “compel agency action unlawfully withheld or unrea-

sonably delayed” and to “hold unlawful and set aside

agency action, findings, and conclusions found to be

* * * (A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; [or] (B) con-

3

trary to constitutional right, power, privilege, or immu-

nity.” 5 U.S.C. 706(1)-(2).

The court of appeals’ decision is consistent with this

Court’s decision in Wilkie. In that case, the constitu-

tional allegations were premised on actions allegedly

taken by employees of the Bureau of Land Management

(BLM) to extract an easement from the landowner plain-

tiff. 551 U.S. at 542-547. As alleged by the plaintiff, the

offensive actions taken by the BLM employees were

myriad; some were prosecutorial in nature, some

sounded in tort, some were conventional agency actions,

and some difficult to categorize. /d. at 551-553. With

respect to those properly categorized as conventional

administrative actions, the Court recognized that for

each claim “administrative review was available, subject

to ultimate judicial review under the APA.” /d. at 552.

It was only because of the “patchwork” of other reme-

dies that the plaintiff would have to pursue in a variety

of forums that the Court had difficulty inferring con-

gressional intent to preclude a Bivens action, requiring

it to proceed to the second step of the analysis. Even on

those facts, however, the Court still found “no intuitively

meritorious case for recognizing a new constitutional

cause of action.” /d. at 554. A fair reading of the

Court’s analysis supports what the court of appeals here

held: where the only allegations can all be characterized

as instances of “conventional agency action,” 7d. at 552,

administrative review subject to judicial review under

the APA provides an adequate, alternative remedy fore-

closing recognition of an independent Bivens remedy.

In this case all of petitioners’ claims may be ade-

quately adjudicated under the APA. As the court of ap-

peals recognized, petitioners did “not dispute that it has

alternative remedies under the APA; it did, after all,

9

bring APA claims against the Forest Service in this

case.” Pet. App. 18. Accordingly, the court of appeals

correctly held that a Bivens remedy was foreclosed.

b. Petitioners rehash arguments made and properly

rejected by the court of appeals below. Pet. 9-15. Those

arguments lack merit and do not warrant this Court’s

review.

First, petitioners contend (Pet. 9-12) that the APA

alternative is not an adequate substitute because it does

not provide for monetary (or punitive) damages, it does

not permit claims against individuals, and it does not

provide a right to a jury trial. But, as the court of ap-

peals held, alternative “remedial schemes lacking such

features may be adequate alternatives, provided that the

absence of such procedural protections was not inadver-

tent on the part of Congress.” Pet. App. 16 (citing

Chilicky, 487 U.S. at 424-425). In Chilicky, the Court

declined to imply a Bivens remedy for alleged due pro-

cess violations by Social Security officials, even though

the review scheme provided by the Social Security Act

offered no possibility of damages. 487 U.S. at 423-425.

The Court explained that “[w]Jhen the design of a Gov-

ernment program suggests that Congress has provided

what it considers adequate remedial mechanisms for

constitutional violations that may occur in the course

of its administration,” it is inappropriate for a court

to afford “additional Bivens remedies.” Jbid. Petition-

ers make no attempt to suggest that Congress “inadver-

tent[ly]” neglected to provide for monetary damages for

alleged constitutional violations arising from reviewable

agency action.

Second, petitioners contend (Pet. 12-13) that the

APA cannot be read as expressing Congress’s intent to

preclude a Bivens remedy because the APA predated

10

the Bivens decision and when Congress amended the

APA post-Bivens it did not-address that decision. For

this argument, petitioners rely on Carlson v. Green, 446

U.S. 14 (1980), but as the court of appeals explained, the

“congressional comments accompanying” the amend-

ment to the Federal Tort Claims Act (FTCA) at issue in

that ease: “made it crystal clear that Congress views

FTCA and Bivens as parallel, complementary causes of

action.” Pet. App. 20 (quoting Green, 446 U.S. at 19-20).

Whereas the legislative history there “expressly stat[ed]

that the FTCA ‘should be viewed as a counterpart to the

Bivens case,” ibid. (quoting Green, 446 U.S. at 20), peti-

tioners can point to no such evidence of congressional

intent with respect to the APA. This Court has previ-

ously declined to create a Bivens remedy where, as here,

Congress has given no affirmative indication that it-in-

tended the statutory cause of action only as a comple-

ment to Bivens. See Chilicky, 487 U.S. at 425-426; Bush

v. Lucas, 462 U.S. 367, 378 (1983).

Finally, petitioners argue (Pet. 14-15) that, like the

plaintiff in Wilkie, they have been subject to a “pattern”

of retaliation and, unlike the plaintiff in Wilkie, that re-

taliation was premised on an improper and unconstitu-

tional motive. Petitioners confuse the “patchwork” of

claims in Wilkie that prompted the Court to look beyond

the APA alternative remedy to the special factors at

issue, with the “pattern” of retaliation they allege in this

case. The Wilkie Court did not proceed to the second

step of the inquiry because there was a “pattern” of ad-

ministrative actions that needed redress; it did so be-

cause the actions were both administrative and non-ad-

ministrative and, as a result, the Court could not infer

that Congress intended the “patchwork” of remedies in

different forums to substitute for a. Bivens remedy.

11

Where the APA is an adequate, alternative remedy for

all of petitioners’ claims (whether or not they constitute

a “pattern”), there is “no need to ‘weigh[]| reasons for

and against the creation of a new cause of action.’” Pet.

App. 21-22 (brackets in original) (quoting Wilkie, 551

U.S. at 554).

2. Petitione:’s have not attempted to demonstrate

any circuit conflict on this issue, and we are aware of

none. Indeed, several courts of appeals have held, in

accord with the decision below, that a plaintiff’s right to

judicial review under the APA precluded a Bivens rem-

edy. See, e.g., Nebraska Beef, Ltd. v. Greening, 398

F.3d 1080, 1084 (8th Cir. 2005) (holding that “the exis-

tence of a right to judicial review under the APA is suffi-

cient to preclude a Bivens action’), cert. denied, 547

U.S. 1110 (2006); Miller v. United States Dep’t of Agric.

Farm Servs. Agency, 143 F.3d 1413, 1416 (11th Cir.

1998) (“[T]he existence of a right to judicial review un-

der the APA is, alone, sufficient to preclude * * * a

Bivens action.”); ef. Munsell v. Department of Agric.,

509 F.3d 572, 589-591 (D.C. Cir. 2007) (suggesting it

might be appropriate to recognize a Bivens remedy

where the alleged unconstitutional conduct drove the

plaintiff from the regulated industry rendering APA

relief unavailable, but declining to decide the issue).

This case is also a poor vehicle for review of the ques-

tion presented because the district court has already

determined that petitioners failed to present sufficient

evidence on their Bivens claims to survive summary

judgment. See Pet. App. 34 (concluding that petitioners

“present no evidence to suggest retaliation, malice, or

conspiratorial acts on the part of individual [respon-

dents],” and that petitioners “present no specific evi-

dence to suggest that [respondents] * * * treated

12

Western Radio differently from its competitors without

rational basis”). Thus, regardless of whether a Bivens

remedy exists for petitioners’ claims, respondents would

still be entitled to summary judgment on the merits. In

these circumstances, further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KLENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

MICHAEL S. RAAB

KELSI BROWN CORKRAN

Attorneys

APRIL 2010