Summary of a Recent
Judicial Development in
Administrative Law

Court Considers Whether to Allow a Bivens Claim
for Governmental Retaliation

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Wilkie v. Robbins, 551 U.S. 537 (2007), the United States Supreme Court held that a plaintiff did not have a private right of action against the federal government for damages of the sort recognized under Bivens for governmental retaliation, and that the plaintiff's Racketeer Influenced and Corrupt Organizations (RICO) Act claim failed because a violation of the Hobbs Act does not qualify as a predicate act for a RICO action where the government was the intended beneficiary of the alleged extortion.

Background

The plaintiff owned a guest ranch on which the previous owner had granted the government an easement to use and maintain a road running through the ranch to federal land. Id. at 2589. The plaintiff took title to the ranch free of the easement because the Bureau of Land Management (BLM) had never recorded it. Id. When the BLM became aware of the situation, one of its officials demanded that the plaintiff regrant the easement, but the plaintiff refused and claimed that the defendants "began a campaign of harassment and intimidation to force him to regrant the lost easement." Id. at 2589-90. He brought suit for damages and declaratory and injunctive relief, including a RICO claim that the defendants tried to extort an easement from him, and a Bivens claim, citing Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, alleging government retaliation in response to the exercise of his ownership rights. Id. at 2590. The district court denied the defendants' motion to dismiss the RICO claim, but it did dismiss the Bivens claim. Id. The Tenth Circuit affirmed, and the parties appealed. Id.

Arguments

Plaintiff argued that the campaign against him amounted to coercion to extract the easement, so he was entitled bring a Bivens-type retaliation claim against the government. Id. at 2591. He also argued that his RICO claim was valid because the predicate act for his claim was a violation of the Hobbs Act, which criminalizes interference with interstate commerce by extortion. Id.

Analysis and Holdings

Bivens claim
The Supreme Court explained that in determining whether to allow a Bivens-type claim for retaliation, courts must first consider "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 damages remedy," and must then weigh the reasons for and against creating a new cause of action. Id. at 2590. The court noted that the plaintiff had a civil damages remedy against the government for trespass that he did not pursue, and although he had contested the administrative charges the BLM brought against him, he did not seek judicial review of the Interior Board of Land Appeals' decisions. Id. Also, although he had demanded a jury trial and been quickly acquitted of the criminal charges brought against him, he had not timely appealed the judge's denial of attorney fees. Id. He had likewise not appealed the unfavorable agency actions he complained of, such as BLM's cancellation of a right-of-way and revocation of his grazing permits. Id. In sum, the Court found that the plaintiff had "an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints. This state of law gives him no intuitively meritorious case for a new constitutional cause of action, but neither does it plainly answer no to the question whether he should have it." Id. at 2591.

The court then turned to the second step of the Bivens inquiry: weighing the reasons for and against creating a new cause of action. Id. The Court noted that most of the government's actions were "legitimate tactics designed to improve the government's negotiating position," and reasoned that "recognizing a Bivens action for 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." Id. Thus the Court held that the plaintiff had no private action for damages under Bivens. Id.

RICO claim
The Court also held that the plaintiff could not bring a RICO claim against the government employee-defendants, because the underlying predicate act, a violation of the Hobbs Act, was invalId. Id. at 2592. The Court explained that the Hobbs Act does not apply when the government is the intended beneficiary of allegedly extortionate acts. Id.

The case was decided on June 25, 2007.