The following argument recap was written by Mariko Hirose of the Stanford Supreme Court Litigation Clinic. Her preview of this can be found here.
The question of whether a Bivens remedy is available for retaliation for the exercise of the Fifth Amendment right against government takings dominated the oral argument on Monday in Wilkie v. Robbins, No. 06-219. In Wilkie, respondent Harvey Frank Robbins had filed suit against officers of the Bureau of Land Management (BLM) for violations of the Fifth Amendment and the Racketeer Influenced and Corrupt Organizations Act (RICO). Robbins alleged that the BLM officers had harassed him over a number of years in retaliation for his refusal to give the BLM a right-of-way over his land (a detailed summary of the case is available here). Although the Supreme Court certified three questions involving both the RICO and Bivens claims, on this interlocutory appeal from the denial of qualified immunity, the Justices focused on the Bivens claim during oral argument and contemplated how to balance remedies for misconduct by government officials with the efficient functioning of governmental agencies.
Gregory G. Garre, the deputy Solicitor General, opened the argument for the petitioners by cautioning the Court against recognizing “a new constitutional tort†that would extend Bivens “to an entirely new context†and “threaten public resources and public lands.†Justice Ginsburg quickly interjected with one of the Justices’ primary concerns with the government’s position: whether there is an available remedy outside of Bivens for the pattern of harassment alleged in this case. Garre submitted that Robbins could have challenged each act of harassment through administrative appeals or through the Federal Tort Claims Act (FTCA) depending on the predicate act challenged. Justices Ginsburg, Kennedy, and Scalia, however, pressed Garre on whether there were any other avenues, such as an injunction or a departmental investigation, to challenge the pattern of misconduct as a whole. They seemed dissatisfied with the Government’s proposed piecemeal approach, which could result in “dying a thousand deaths†through the expenditure of money and time on each legal challenge. Hinting at his dissatisfaction, Justice Kennedy later asked Garre to square Davis v. Passman’s teaching that a Bivens claim should be available where there are no other remedies, assuming that there were no alternative remedies. Garre offered that Davis was decided in an era when the Court more readily inferred new causes of action from the Constitution and that Bivens is incompatible with the Takings Clause which itself provides a remedy in the form of just compensation.
Steering the conversation in a different direction, Justice Scalia took the helm and asked whether the government was entitled to the right-of-way across Robbins’s property—a characterization that Justice Scalia later disclosed would be pivotal in his decision. Garre responded that the government has the right to seek a reciprocal easement and that the reciprocal right-of-way had to be renegotiated with Robbins as the right-of-way could not be automatically reassigned. Later, however, Professor Laurence H. Tribe, arguing for respondent, disputed this position and asserted that the easement ran with the land and that the BLM canceled Robbins’s easement not because it had expired but for other predicate reasons. Despite this tension between the parties’ positions, Chief Justice Roberts seemed to lean towards the government’s view, positing during both the petitioner’s and the respondent’s argument that it may be appropriate for an agency to selectively enforce certain regulations in order to secure a reciprocal easement. Garre built on Chief Justice Roberts’s suggestion by asserting that the Just Compensation clause tolerates a “certain amount of give and take†to negotiate reciprocal arrangements and that such negotiations are not subject to RICO or Bivens claims.
Before closing his argument, Garre took the opportunity to launch into the topic of qualified immunity and argue that there can be no liability in this case because, at minimum, no court has ever recognized the causes of action at issue here. Justice Souter asked whether there should be qualified immunity for RICO claims as well and whether that would be an extension of the qualified immunity doctrine. Garre responded first that the argument was not properly before the court and second that qualified immunity is available under RICO because it looks to the nature of responsibility that government officials are performing rather than to the specific offense.
Professor Laurence H. Tribe, appearing on behalf of the respondent, began with the qualified immunity argument by arguing that it does not take a constitutional law student to know that the deliberate decisions made over a course of many years to harass Robbins for the exercise of his property rights was clearly forbidden.
After some discussions of the reciprocity of the easement, Justice Breyer steered the conversation to the existence of alternative remedies, arguing that there must be other remedies available in courts since many of the predicate acts of harassment were themselves illegal. Tribe answered that such avenues only provide for piecemeal remedies, but if the case is dissected, one of the accepted Bivens causes of action would be malicious prosecution under the Court’s decision in Hartman v. Moore. Justice Breyer seemed unconvinced, however, noting that Robbins had brought a malicious prosecution suit and had lost. Throughout the respondent’s argument, Justices Breyer, Souter, and Chief Justice Roberts continued to return to this point and press Tribe on the availability of other remedies under state tort law and under the Administrative Procedures Act (APA) judicial review. Chief Justice Roberts also asked for what predicate acts Robbins had not received as an avenue for a remedy, given that the malicious prosecution suit had been rejected and trespass citations had been upheld in administrative hearings. Tribe asserted that the main point here was that there must be a constitutional limit to the retaliation that government officials can engage in when they try to take away private property without just compensation.
Underlying many of the Justices’ qualms and questions during the respondent’s argument seemed to be, as Justice Scalia put it, the fear of creating an “extraordinary remedy†for the actions of “overzealous regulations.†Justice Breyer, for example, expressed his anxiety over opening the floodgates of litigation against legitimate regulatory action, especially for property rights, which are subject to many valid rules and regulations. Justice Kennedy, on the other hand, focused his concern on whether the recognition of a freestanding cause of action for damages in this case would result in the extension of Bivens. Chief Justice Roberts, meanwhile, requested that Tribe respond to the argument that the Court should not create a new remedy just because the plaintiff doesn’t want to pursue each remedy in a piecemeal manner. Tribe addressed these anxieties by arguing that Bivens is not a new remedy, that there may have been no case like this one before but this is a compelling case to find an anti-retaliation right, and that Bivens anti-retaliation claims are available in the First Amendment context and have not caused the floodgates problem despite a similar possibility of groundless suits.
Finally, buried in the Bivens debate, Justice Alito led a short discussion devoted to the RICO claim. Justice Alito began by saying that he had never heard of a government employee being found guilty of extortion by demanding money for the Government. Despite Tribe’s effort to point them to cited cases and the statutory language, Justices Alito, Breyer, and Chief Justice Roberts questioned the thinness of the authority on this point, especially for finding a clearly established right for the purposes of qualified immunity.
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