Wilkie v. Robbins

The late Chief Justice made a habit of speaking at conferences about the term's "sleeper cases" - those important cases that didn't set the front pages afire - under the rubric of Thomas Gray's Elegy Written in a Country Church-Yard ("Full many a flower is born to blush unseen / And waste its sweetness on the desert air"). Justice Souter's opinion in Wilkie v. Robbins today is, alas, born to blush unseen, lost in the din over the day's higher-profile cases WRTL, Morse and Hein. That's a shame, because it's up to Justice Souter's usual standards, and since Rehnquist is, alas, otherwise occupied lately, I here venture into the desert air for him, perhaps to ensure someone, somewhere, does.

The essence of the case is this: Robbins' Wyoming ranch is "a patchwork of mostly contiguous land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the National Government."1 He accuses various "[o]fficials of the [Federal] Bureau of Land Management ... of [a pattern of] harassment and intimidation aimed at extracting an easement across [his] private property" spanning almost a decade.2 Eventually, Robbins sued premised on "a RICO claim charging defendants with repeatedly trying to extort an easement from him, as well as a similarly grounded Bivens claim that defendants violated his Fourth and Fifth Amendment rights."3

At issue in this case is "whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government’s employees,"4 and whether Robbins' RICO claim is well-founded.

The latter is the easier question. In short, RICO provides civil remedies to someone injured in his business or property by a violation of 18 U.S.C. §1962's criminalization of conducting the business affairs of "any enterprise engaged in, or the activities of which affect, interstate or foreign commerce ... through a pattern of racketeering activity."5 RICO's definition of "racketeering activity" includes any act which is indictable under the Hobbs Act, which in turn "criminalizes interference with interstate commerce by extortion, ... [including] attempts or conspiracies" to extort, with "extortion being defined as 'the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.'"6 Robbins' theory was that the defendants "violat[ed] the Hobbs Act by wrongfully trying to get the easement under color of official right," but the court accepted the defendants' argument that "the Hobbs Act does not apply when the National Government is the intended beneficiary of the allegedly extortionate acts."7

When Congress uses a common-law term of art that has accreted a technical meaning, courts generally assume that Congress thereby "'presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.'"8 Indeed, recently in Scheidler v. NOW, the court took exactly this approach in contruing the same word ("extortion") in the same statute (RICO).9 And under the common law's understanding of "extortion," Justice Souter explains, Robbins is out of luck. "Extortion by the public official was the rough equivalent of what we would now describe as ‘taking a bribe’”10; it "focused on the harm of public corruption, by the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain property on behalf of the Government."11 For Robbins to prevail, under the common law understanding of extortion, "[t]he officer must [have] unlawfully and corruptly receive[d] such money or article of value for his own benefit or advantage."12 Robbins "cited no decision by any court, much less [the Supreme Court of the United States], from the entire 60-year period of the Hobbs Act that found extortion in efforts of Government employees to get property for the exclusive benefit of the Government."13 Thus the court rejects the RICO claim.

The Bivens claim also fails. Bivens found that the Constitution itself provides a cause of action to a victim of a fourth amendment violation who sought damages. It has subsequently been broadened to include "employment discrimination in violation of the Due Process Clause and ... an Eighth Amendment violation by prison officials." 14.

[T]he decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.”15

The court exhaustively recounts the various alleged incidents forming the pattern of harrasment,16 and breaks them down into four categories, each of which has or had an alternative remedy that could have been pursued by Robbins. "In sum, Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints ... [and] [t]his state of the law gives Robbins no intuitively meritorious case for recognizing a new constitutional cause of action."17

This isn't quite the end of the matter, though. Given the "patchwork" quality of these alternative remedies, this case is occaision "for Bivens step two, for weighing reasons for and against the creation of a new cause of action...."18 On one side of the ledger, although the individual harassing acts are minor, they conspire to produce a whole greater than the sum of its parts: "Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse."19 But

[o]n the other side of the ledger there is a difficulty in defining a workable cause of action. ... [O]n closer look, the claim against the Bureau’s employees fails to fit the prior retaliation cases. Those cases turn on an allegation of impermissible purpose and motivation ... [but] a Bivens case by Robbins could not be resolved merely by answering a “what for” question or two. All agree that the Bureau’s employees intended to convince Robbins to grant an easement ... [but] trying to induce someone to grant an easement for public use is a perfectly legitimate purpose....

Robbins’s challenge, therefore, is not to the object the Government seeks to achieve, and for the most part his argument is not that the means the Government used were necessarily illegitimate; rather, he says that defendants simply demanded too much and went too far. But as soon as Robbins’s claim is framed this way, the line-drawing difficulties it creates are immediately apparent. A “too much” kind of liability standard (if standard at all) can never be as reliable a guide to conduct and to any subsequent liability as a “what for” standard, and that reason counts against recognizing freestanding liability in a case like this.20

Thus, the problem becomes that

at this high level of generality, a Bivens action to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations. Exercising any governmental authority affecting the value or enjoyment of property interests would fall within the Bivens regime, and across this enormous swath of potential litigation would hover the difficulty of devising a “too much” standard that could guide an employee’s conduct and a judicial factfinder’s conclusion.21

In view of these difficulties, the court wisely washes its hands: "[a] judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out ... [so] [w]e think ... that any damages remedy for actions by Government employees who push too hard for the Government’s benefit may come better, if at all, through legislation" by Congress than by the recognition of a Bivens remedy by the courts.22

A separate concurrence from Justice Thomas, joined by Our Hero, expresses skepticism of Bivens (a recurrent theme for them), but in this case can go along with an opinion that declines to overrule that case but also declines to extend it (in sharp contrast, one must say, to their attitude towards Flast in Hein, a disconnect I noted earlier today), and Justice Ginsburg, joined by Justice Stevens, dissents in part.

1. 1. Wilkie, slip op. at 1.
2. 2. Ibid.
3. 3. Id. at 8.
4. 4. Id. at 9.
5. 5. 18 U.S.C. §1962(c).
6. 6. Wilkie, slip op. at 24 (quoting 18 U.S.C. §1951(b)(2).
7. 7. Ibid.
8. 8. Ibid. (quoting Morissette v. United States, 342 U.S. 246,m 263 (1952).
9. 9. Ibid. (citing Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 402 (2003).
10. 10. Id. at 25 (quoting Evans v. United States, 504 U.S. 255, 260 (1992).
11. 11. Ibid.
12. 12. Id. at 25-6 (quoting United States v. Deaver, 14 F. 595, 597 (WDNC 1882) (emphasis changed)).
13. 13. Id. at 26.
14. 14. Id. at 10 (citations omitted) (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)).
15. 15. Ibid. (citations omitted).
16. 16. As I explained last week in relation to the Katrina litigation, because this case is an appeal from the district court's denial of defendants' motion for summary judgment, reviewing courts consider all facts in the light most favorable to the non-moving party, in this case, Robbins.
17. 17. Id. at 14.
18. 18. Id. at 14-5.
19. 19. Id. at 15.
20. 20. Id. at 16-7.
21. 21. Id. at 21.
22. 22. Id. at 22-3.