Argument Preview: Wilkie v. Robbins on 3/19

The following argument preview was written by Mariko Hirose of the Stanford Supreme Court Litigation Clinic.

On Monday, March 19, the Justices will hear oral argument in Wilkie v. Robbins, No. 06-219, a case brought against officers of the Bureau of Land Management (BLM) alleging violations of the Fifth Amendment and the Racketeer Influenced and Corrupt Organizations Act (RICO). The Supreme Court certified three questions in this interlocutory appeal, bearing on the applicability of qualified immunity to the RICO claim of extortion, the applicability of qualified immunity to the Fifth Amendment claim of retaliation for excluding the government from private property, and the availability of a Bivens claim when judicial review is available under the Administrative Procedure Act (APA). Deputy Solicitor General Greg Garre will argue for the petitioners, while Professor Laurence Tribe will argue on behalf of respondent Harvey Frank Robbins. The parties’ briefs are available here.

The underlying facts of Wilkie trace back to 1994, when respondent Robbins purchased a commercial guest ranch in Wyoming. Unbeknownst to Robbins at the time, BLM – which controls the federal land adjoining the ranch – had granted his predecessor-in-interest a right-of-way over federal land in exchange for an easement over his private property. Although Robbins’s predecessor had properly recorded his right-of-way over the federal land, BLM had not yet recorded its easement when Robbins purchased the ranch. Thus, under Wyoming law, BLM’s easement was nullified when Robbins recorded the deed. Soon thereafter, a BLM employee asked Robbins to reinstate its easement without offering him any compensation. According to Robbins, when he declined, BLM employees embarked on a series of retaliatory acts and harassment to coerce him into granting the easement: for example, they brought false criminal charges, revoked his grazing and recreational use permits, trespassed on his property, and harassed his guests during their cattle drives.

In 1998, Robbins filed suit in federal district court in Wyoming against BLM employees in their private capacities, seeking relief pursuant to RICO for extortion and Bivens for retaliation for the exercise of his Fifth Amendment right to refuse to give the government an easement without just compensation. The procedural history is somewhat complicated, but the district court ultimately denied the defendants’ motion for summary judgment on qualified immunity grounds, from which the defendants took an interlocutory appeal. The Tenth Circuit affirmed. The court held that even assuming the defendants acted within their regulatory authority, their conduct would amount to extortion within the meaning of RICO if undertaken for the purpose of extorting an easement. The court also held that the plaintiff could pursue his Fifth Amendment claim under Bivens to the extent the underlying conduct was “unrelated to any final agency action” subject to review under the APA. Representing the BLM officials, the Solicitor General filed a petition for certiorari, which the Court granted.

The first question presented addresses the threshold question of whether RICO ever precludes government officials from attempting to use their regulatory powers to obtain property for the sole benefit of the government, and if so, whether such a prohibition was clearly established. The government asserts that Congress intended RICO to punish a “corrupt public official” who seeks and acquires a private benefit not due to him; here, by contrast, the BLM employees were simply “overzealous regulators” who had acted for the government’s benefit and never acquired the property. At a minimum, however, the BLM officials are entitled to qualified immunity as any RICO prohibition was not clearly established. Robbins counters first by asserting that there is no qualified immunity defense to civil RICO claims predicated on criminal extortion. Moreover, he argues that the statutory definition and historical understanding of extortion includes acts by officials misusing their official powers to obtain property for the government.

The second question presented asks whether the availability of judicial review under the APA (or other similar statutes) precludes a Bivens claim. Robbins challenges the Court’s jurisdiction to review the Bivens issue at all, on two grounds. First, he argues that the Bivens preclusion issue is not inextricably intertwined with the qualified immunity question over which the Court has interlocutory jurisdiction. Second, he notes that the defendants had previously raised this question in a prior appeal from which they did not seek certiorari. He argues that an interlocutory appeal should not be allowed to raise a pure question of law already rejected in a prior appeal. On the merits, the petitioners argue that the APA precludes Bivens claims because the Act’s judicial review scheme evinces congressional intent to provide a comprehensive remedial mechanism for constitutional violations to the exclusion of any Bivens remedy. Robbins argues that the APA cannot be understood to reflect a congressional intent to preclude a Bivens claim for conduct that is not subject to review under the APA because it is “unrelated to final agency action.”

Finally, the third question presented addresses whether the Fifth Amendment protects against retaliation for refusing to give the government property without just compensation, and – if so – whether that right was clearly established. First, the government urges the Court to decline to recognize an anti-retaliation right under the Takings Clause, arguing that the Clause does not present the same chilling concerns that motivated the anti-retaliation doctrine in First Amendment jurisprudence. Robbins counters that the anti-retaliation doctrine is rooted in the basic right to be free from punishment for the exercise of constitutional rights, a right the Court has recognized in many areas outside the First Amendment context. Second, the government argues that Robbins has no claim under the Fifth Amendment, which guarantees just compensation for a governmental taking, because it has not taken any property; Robbins was, if anything, merely exercising his state-law property rights. It characterizes the case as arising from Robbins’s efforts to use public land without granting a reciprocal easement and cautions the Court against “constitutionaliz[ing] routine land use disputes.” Robbins disputes the government’s characterization, instead painting the case as involving efforts by individual government employees to circumvent the Just Compensation clause. Such an attempt is, according to Robbins, akin to the actions that originally prompted the enactment of the Takings Clause; moreover, the Fifth Amendment was intended to protect individuals from unauthorized coercion before their property is taken away from them.