The following summary is by Nicole Elam, a summer associate at Akin Gump and a student at Howard Law School.

When a private landowner alleges that government officials have harassed and intimidated him in an effort to obtain an easement across his land, what remedies does he have? In a 7-2 decision, authored by Justice Souter, the Court held today that a landowner in this situation cannot avail himself of either a Bivens action or a RICO claim.

Respondent Harvey Frank Robbins operates a private cattle and commercial guest ranch in Hot Springs County, Wyoming. Robbins's land stretches for approximately forty miles, occasionally interspersed with property owned by the federal government. The dispute between petitioners and respondent has its origins in efforts by the Bureau of Land Management (BLM) to secure a right-of-way across Robbins's ranch. When Robbins refused, the quarrel began: BLM allegedly harassed, refused to maintain the public road providing access to his property, and brought false criminal charges against Robbins, who in turn sued BLM employees alleging that their actions violated RICO, Bivens, and the Fifth Amendment. Asserting that they were entitled to qualified immunity, the BLM employees successfully moved to dismiss.


After an initial trip to the Tenth Circuit, the case returned to the district court, which held that the employees were not entitled to qualified immunity. On appeal, the court of appeals affirmed. It held that: (1) there is a Fifth Amendment right to exclude the government from private property; (2) Robbins had a right to be free from retaliation by government officials for his exercise of his Fifth Amendment right; (3) the rights to exclude and be free from retaliation are clearly established; and (4) the employees were not entitled to qualified immunity.

The Supreme Court granted certiorari and today it reversed. It held first that a private action for damages for retaliating against the exercise of ownership rights cannot be created under Bivens v. Six Unknown Federal Narcotics Agents. Noting that a Bivens remedy requires courts to undertake a two-step inquiry "“ considering whether alternative remedies exist and balancing reasons for and against the creation of a new cause of action "“ the Court concluded that the establishment of a new Bivens remedy to redress injuries based on retaliation for the exercise of ownership rights would raise serious problems. First, administrative and judicial remedies already exist to redress the various injuries alleged. Second, while the Court recognized the inadequacy of pursuing incident-by-incident remedies, the Court found great difficulty in both defining a workable cause of action and creating a standard in such cases of "overzealous" government actions. Further, the Court noted that even if such an action were defined as a retaliation case, the claim against BLM does not fit prior retaliation cases, which "turn[ed] on an allegation of [an] impermissible purpose and motivation." By contrast, the Court emphasizes, Robbins alleges that the government went "too far" in its efforts to achieve a "perfectly legitimate" objective that was well within its enforcement powers. The Court also noted that, like other property owners, the government has a right to engage in "overzealoushard bargaining." Finally, creating such a claim would open the floodgates to suits in "every sphere of legitimate governmental actions affecting property interest." As such, a fashioned remedy should come through Congress and not the judiciary.

The Court next held that Robbins could not bring a RICO claim against the government officials in their individual capacities because the Hobbs Act, on which Robbins relied for the predicate act required by RICO, does "not apply when the National Government is the intended beneficiary of the allegedly extortionate acts." Noting that the Hobbs Act does not specifically indicate whether it applies to the government, the Court turned to the common law conception of extortion. Historically, it explained, extortion cases focused on the harm of public corruption for private gain, and the distinction between public and private beneficiaries is borne out in the Court's own case law. Moreover, there is no reason to believe that Congress intended the Hobbs Act to be used against government employees working to enforce government property claims.

Justice Thomas joined by Justice Scalia, issued a concurring opinion. The Justices agreed with the Court, that Bivens does not provide a cause of action in this case. However, they went so far as to state that even if Bivens logically applied, it is a "relic" of the days in which the "Court assumed the common-law powers to create causes of action." Viewing the Court's role as more limited, the Justices note Bivens and its progeny should be limited to the precise circumstances in which they involved.

Justice Ginsburg, joined by Justice Stevens, issued an opinion concurring in part and dissenting in part. She agreed with the majority that Robbins had failed to state a RICO claim, but she would have held that he had a cause of action under Bivens. She reiterated that, even when there is no statutory right to sue, a Bivens action may be maintained "[a]bsent congressional command or special factors counseling hesitation"; moreover, as the majority acknowledged, Robbins has "no alternative remedy for the relentless torment he alleges." She then rejected what she regarded as the central premise underlying the majority's conclusion "“ viz., that allowing a Bivensaction here would "open the floodgates." By contrast, the Court's holding will shut the door to all plaintiffs, even those excessively harassed by the government. Nor does the fact that the government was pursuing legitimate objectives through "legitimate tactics" mean that Robbins could not state a retaliation claim: in Justice Ginsburg's view, "[a] court need only ask whether Robbins engaged in constitutionally protected conduct . . . and if so, whether that was the reason BLM agents harassed him." Moreover, Justice Ginsburg suggested, the possibility of frivolous Fifth Amendment retaliation claims can be significantly reduced by adopting a standard similar to the one used in sexual harassment claims: a plaintiff would be required to "prove a pattern of severe and pervasive harassment in duration and degree well beyond the ordinarystrenuous negotiations." Robbins, she emphasized, "would have no trouble meeting" such a standard.

Finally, the dissenters turned to the issue of qualified immunity. In Justice Ginsburg's view, the BLM officials would not be entitled to qualified immunity because they "plainly violated [Robbins's] Fifth Amendment right to be free of such coercion," and it "is inconceivable that any reasonable official could have believed to be lawful the pernicious harassment Robbins alleges."

The question that remains unanswered after today's opinion is just how far a federal official may go in their "overzealoushard bargaining" to gain the private property of a landowner. The exact limits of the federal government's power to use harassment and intimidation to extract private property will likely have to await for another day.

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