OPINION OF GINSBURG, J.
WILKIE V. ROBBINS
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-219
CHARLES WILKIE, et al., PETITIONERS
v. HARVEY FRANK ROBBINS
on writ of certiorari to the united states court of
appeals for the tenth circuit
[June 25, 2007]
Justice Ginsburg, with whom
Justice Stevens joins, concurring in part and dissenting in
part.
Bureau of Land Management (BLM)
officials in Wyoming made a careless error. They failed to record
an easement obtained for the United States along a stretch of land
on the privately owned High Island Ranch. Plaintiff-respondent
Frank Robbins purchased the ranch knowing nothing about the
easement granted by the prior owner. Under Wyoming law, Robbins
took title to the land free of the easement. BLM officials,
realizing their mistake, demanded from Robbins an easement—for
which they did not propose to pay—to replace the one they
carelessly lost. Their demand, one of them told Robbins, was
nonnegotiable. Robbins was directed to provide the easement, or
else. When he declined to follow that instruction, the BLM
officials mounted a seven-year campaign of relentless harassment
and intimidation to force Robbins to give in. They refused to
maintain the road providing access to the ranch, trespassed on
Robbins’ property, brought unfounded criminal charges against him,
canceled his special recreational use permit and grazing
privileges, interfered with his business operations, and invaded
the privacy of his ranch guests on cattle drives.
Robbins commenced this lawsuit to end the
incessant harassment and intimidation he endured. He asserted that
the Fifth Amendment’s Takings Clause forbids government action
calculated to acquire private property coercively and cost-free. He
further urged that federal officials dishonor their constitutional
obligation when they act in retaliation for the property owner’s
resistance to an uncompensated taking. In support of his claim for
relief, Robbins relied on
Bivens v.
Six Unknown Fed.
Narcotics Agents,
403 U. S. 388 (1971). The Court
recognizes that the “remedy” to which the Government would confine
Robbins—a discrete challenge to each offending action as it
occurs—is inadequate. A remedy so limited would expose Robbins’
business to “death by a thousand cuts.” See
ante, at 15
(quoting Brief for Respondent 40). Nevertheless, the Court rejects
his claim, for it fears the consequences. Allowing Robbins to
pursue this suit, the Court maintains, would open the floodgates to
a host of unworthy suits “in every sphere of legitimate
governmental action affecting property interests.”
Ante,
at 21.
But this is no ordinary case of “hard
bargaining,”
ibid., or bureaucratic arrogance. Robbins
charged “vindictive action” to extract property from him without
paying a fair price. He complains of a course of conduct animated
by an illegitimate desire to “get him.” That factor is sufficient
to minimize the Court’s concern. Cf.
Village of
Willowbrook v.
Olech,
528 U. S. 562, 565–566
(2000) (Breyer, J., concurring in result) (citations and internal
quotation marks omitted). Taking Robbins’ allegations as true, as
the Court must at this stage of the litigation, the case presents
this question: Does the Fifth Amendment provide an effective check
on federal officers who abuse their regulatory powers by harassing
and punishing property owners who refuse to surrender their
property to the United States without fair compensation? The answer
should be a resounding “Yes.”
I
The Court acknowledges that, at
this stage of proceedings, the facts must be viewed in the light
most favorable to Robbins.
Ante, at 3, n. 2. The full
force of Robbins’ complaint, however, is not quite captured in the
Court’s restrained account of his allegations. A more complete
rendition of the saga that sparked this suit is in order.
Upon discovering that BLM had
mistakenly allowed its easement across High Island Ranch to expire,
BLM area manager Joseph Vessels contacted Robbins at his home in
Alabama to demand that Robbins grant a new easement. Vessels was on
shaky legal ground. A federal regulation authorized BLM to require
a landowner seeking a right-of-way across Government land to grant
reciprocal access to his own land. See 43 CFR §2801.1–2 (2004). But
Robbins never applied for a right-of-way across federal land (the
prior owner did), and the Government cites no law or regulation
commanding Robbins to grant a new easement to make up for BLM’s
neglect in losing the first one. Robbins was unwilling to
capitulate to unilateral demands, but told Vessels he would
negotiate with BLM when he moved to Wyoming. Vessels would have
none of it: “This is what you’re going to do,” he told Robbins.
Plaintiff-Appellee’s Supp. App. in No. 04–8016 (CA10), p. 325
(hereinafter CA10 App.).
Edward Parodi, a range technician in the BLM
office, testified that from the very beginning, agency employees
referred to Robbins as “the rich SOB from Alabama [who] got [the
Ranch].” App. 121. Trouble started almost immediately. Shortly
after their first conversation, Vessels wrote Robbins to ask
permission to survey his land, presumably to establish the contours
of the easement. Robbins refused, believing there was no need for a
survey until an agreement had been reached. Vessels conducted the
survey anyway, and chuckled when he told Robbins of the trespass.
CA10 App. 325–327. At their first face-to-face meeting in Wyoming,
Robbins bridled at the one-sided deal BLM proposed. But Vessels was
adamant: “The Federal Government does not negotiate,” he declared.
Id., at 326. Over time, Parodi reported, Vessels’ attitude
towards Robbins changed from “professional” to “hostile,” and “just
got worse and worse and worse.” App. 124.
Other BLM employees shared Vessels’ animosity.
In one notable instance, Robbins alleged, BLM agent Gene Leone
provoked a violent encounter between Robbins and a neighboring
landowner, LaVonne Pennoyer. Leone knew Robbins was looking for a
water source for his cattle, and he called Pennoyer to warn her to
be on the lookout. Robbins, unfamiliar with the territory and
possibly misled by BLM, drove cattle onto Pennoyer’s land to water
at a creek. Pennoyer showed up in her truck, yelling, blowing the
horn, and bumping cows. Realizing that he was on Pennoyer’s land,
Robbins started to push his cows out of her way, when Pennoyer
revved her engine and drove her truck straight into the horse
Robbins was riding.
Id., at 49; CA10 App. 331–332,
676–681; Pl. Exh. 2, Record 164–166; Pl. Exh. 35a,
id., at
102–108. According to Parodi, after the dustup, Leone boasted, “I
think I finally got a way to get [Robbins’] permits and get him out
of business.” App. 125, 126. Leone pressed the local sheriff to
charge Robbins for his conduct in the encounter with Pennoyer, but
the sheriff declined to do so. CA10 App. 331–332.
Leone cited the Pennoyer incident as one
ground, among others, to suspend Robbins’ special recreation use
permit. That permit allowed Robbins to lead ranch guests on cattle
drives, which were his primary source of revenue from the property.
App. 49. BLM aimed at the cattle drives in other ways too.
Undermining the authenticity of the experience Robbins offered his
guests, BLM employees followed along in trucks, videotaping
participants. The Government suggests that this surveillance was a
legitimate way to document instances when Robbins crossed onto
federal land without permission. The suggestion, however, hardly
explains why, on one occasion, BLM employees videotaped several
female guests who were seeking privacy so they could relieve
themselves. CA10 App. 506–507.
As part of the campaign against Robbins,
Parodi was instructed to “look closer” for trespass violations, to
“investigate harder” and “if [he] could find anything, to find it.”
App. 129, 130. Parodi testified, in relation to the instructions he
was given, that he did not have problems with Robbins: He never
found a trespass violation he regarded as willful, and Robbins
promptly addressed every concern Parodi raised.
Id., at
124, 127.
The Court maintains that the BLM employees
“were within their rights to make it plain that Robbins’s
willingness to give the easement would determine how complaisant
they would be” about his infractions, but the record leaves doubt.
Ante, at 19. Parodi testified that he was asked to “do
things [he] wasn’t authorized [to do],” App. 124, and that Leone’s
projections about what BLM officers would do to Robbins exceeded
“the appropriate mission of the BLM,”
id., at 128. About
Vessels, Parodi said, “[i]t has been my experience that people
given authority and not being held in check and not having solid
convictions will run amuck and that [is] what I saw happening.”
Id., at 125. Eventually, Parodi was moved to warn Robbins
that, if he continued to defy BLM officials, “there would be war, a
long war and [BLM] would outlast him and outspend him.”
Id., at 132. Parodi found BLM’s treatment of Robbins so
disturbing that it became “the volcanic point” in his decision to
retire.
Id., at 133. “It’s one thing to go after somebody
that is willfully busting the regulations and going out of their
way to get something from the government,” Parodi said, but he saw
Robbins only “as a man standing up for his property rights.” Pl.
Exh. 35C, Record 41.
The story thus far told is merely illustrative
of Robbins’ allegations. The record is replete with accounts of
trespasses to Robbins’ property, vindictive cancellations of his
rights to access federal land, and unjustified or selective
enforcement actions. Indeed, BLM was not content with the arrows in
its own quiver. Robbins charged that BLM officials sought to enlist
other federal agencies in their efforts to harass him. In one
troubling incident, a BLM employee, petitioner David Wallace,
pressured a Bureau of Indian Affairs (BIA) manager to impound
Robbins’ cattle, asserting that he was “a bad character” and that
“something need[ed] to be done with [him].” CA10 App. 359. The
manager rejected the request, observing that the BIA had no
problems with Robbins.
Ibid.
Even more disconcerting, there was sufficient
evidence, the District Court recognized, to support Robbins’
allegation that BLM employees filed false criminal charges against
him, claiming that he forcibly interfered with a federal officer.
Federal prosecutors took up the cause, but Robbins was acquitted by
a jury in less than 30 minutes.[
Footnote 1] A news account reported that the jurors “were
appalled at the actions of the government,” one of them commenting
that “Robbins could not have been railroaded any worse … if he
worked for Union Pacific.”
Id., at 852.
BLM’s seven-year campaign of harassment had a
devastating impact on Robbins’ business. Robbins testified that in
a typical summer, the High Island Ranch would accommodate 120
guests spread across six cattle drives. As a result of BLM’s
harassment, in 2003, Robbins was able to organize only one cattle
drive with 21 guests.
Id., at 507–508. In addition,
Robbins reports that he spent “hundreds of thousands of dollars in
costs and attorney’s fees” seeking to fend off BLM. Brief for
Respondent 9, n. 6.
To put an end to the incessant harassment,
Robbins filed this suit, alleging that the Fifth Amendment forbids
government action calculated to acquire private property coercively
and cost-free, and measures taken in retaliation for the owner’s
resistance to an uncompensated taking. Even assuming Robbins is
correct about the Fifth Amendment, he may not proceed unless he has
a right to sue. To ground his claim for relief, Robbins relies on
Bivens,
403 U. S. 388.
II
“The very essence of civil
liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury.”
Marbury v.
Madison, 1 Cranch 137, 163 (1803). In
Bivens, the Court drew upon that venerable principle in
holding that a victim of a Fourth Amendment violation by federal
officers has a claim for relief in the form of money damages.
“Historically,” the Court observed, “damages have been regarded as
the ordinary remedy for an invasion of personal interests in
liberty.” 403 U. S., at 395.
The Court’s decisions recognize
that the reasoning underlying
Bivens is not confined to
Fourth Amendment claims. In
Davis v.
Passman,
442 U. S. 228,
248–249 (1979), the Court allowed a suit seeking money damages for
employment discrimination in violation of the equal protection
component of the Fifth Amendment. “[U]nless [constitutional] rights
are to become merely precatory,” the Court stated, “litigants who
allege that their own constitutional rights have been violated, and
who at the same time have no effective means other than the
judiciary to enforce these rights, must be able to invoke the
existing jurisdiction of the courts for … protection.”
Id., at 242. Soon after
Passman, the Court
applied
Bivens again, recognizing a federal right of
action to gain damages for an Eighth Amendment violation.
Carlson v.
Green,
446 U. S. 14 (1980).
Carlson announced two exceptions to
Bivens’ rule. “The first [applies] when defendants
demonstrate special factors counselling hesitation in the absence
of affirmative action by Congress.” 446 U. S., at 18 (quoting
Bivens, 403 U. S., at 396). “The second [applies] when
defendants show that Congress has provided an alternative remedy
which it explicitly declared to be a
substitute for
recovery directly under the Constitution and viewed as equally
effective.”
Carlson, 446 U. S., at 18–19 (emphasis in
original). Prior decisions have invoked these exceptions to bar
Bivens suits against federal officers in only three
contexts.[
Footnote 2]
In
Bush v.
Lucas,
462 U. S. 367, 368
(1983), a federal employee sought recovery for First Amendment
violations alleged to have occurred in his workplace. As a civil
servant, the plaintiff had recourse to “an elaborate, comprehensive
scheme” administered by the Civil Service Commission, in which
constitutional challenges were “fully cognizable.”
Id., at
385, 386. The Court declined to recognize a judicial remedy, lest
it interfere with Congress’ carefully calibrated system. For
similar reasons, in
Schweiker v.
Chilicky,
487 U. S. 412,
414, 424–429 (1988), the Court held that the Social Security Act’s
scheme of administrative and judicial remedies left no void to be
filled by a
Bivens action. Likewise, on two occasions, the
Court concluded that “the unique disciplinary structure of the
Military Establishment” precluded a
Bivens action for harm
to military personnel through activity incident to service.
United States v.
Stanley,
483 U. S. 669, 679
(1987) (internal quotation marks omitted);
Chappell v.
Wallace,
462 U. S. 296, 304
(1983).
Some Members of this Court consider
Bivens a dated precedent. See
ante, at 1 (Thomas,
J., concurring) (“
Bivens is a relic of the heady days in
which this Court assumed common-law powers to create causes of
action.” (quoting
Correctional Services Corp. v.
Malesko,
534 U. S. 61, 75 (2001) (
Scalia, J., concurring))). But the Court has so far adhered to
Bivens’ core holding: Absent congressional command or
special factors counseling hesitation, “victims of a constitutional
violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any
statute conferring such a right.” Carlson, 446 U. S., at
18.
III
A
The Court does not
hold that Robbins’ Bivens suit is precluded by a carefully
calibrated administrative regime like those at issue in
Bush, Chilicky, Chappell, or
Stanley, nor could it. As the Court recognizes, Robbins
has no alternative remedy for the relentless torment he alleges.
True, Robbins may have had discrete remedies for particular
instances of harassment. But, in these circumstances, piecemeal
litigation, the Court acknowledges, cannot forestall “death by a
thousand cuts.” Ante, at 15 (quoting Brief for Respondent
40). For plaintiffs in Robbins’ shoes, “it is damages or nothing.”
Bivens, 403 U. S., at 410 (Harlan, J., concurring in
judgment).
Despite the
Court’s awareness that Robbins lacks an effective alternative
remedy, it nevertheless bars his suit. The Court finds, on the
facts of this case, a special factor counseling hesitation quite
unlike any we have recognized before. Allowing Robbins to seek
damages for years of harassment, the Court says, “would invite an
onslaught of Bivens actions,” ante, at 23, with
plaintiffs pressing claims “in every sphere of legitimate
governmental action affecting property interests,” ante,
at 21.
The “floodgates” argument the
Court today embraces has been rehearsed and rejected before. In
Passman, the Court of Appeals emphasized, as a reason
counseling denial of a Bivens remedy, the danger of
“deluging federal courts with [Fifth Amendment based employment
discrimination] claims.” 442 U. S., at 248 (internal quotation
marks and citation omitted). This Court disagreed, turning to
Justice Harlan’s concurring opinion in Bivens to explain
why.
The only serious policy
argument against recognizing a right of action for Bivens, Justice
Harlan observed, was the risk of inundating courts with Fourth
Amendment claims. He found the argument unsatisfactory:
“[T]he question appears to be how
Fourth Amendment interests rank on a scale of social values
compared with, for example, the interests of stockholders defrauded
by misleading proxies. Judicial resources, I am well aware, are
increasingly scarce these days. Nonetheless, when we automatically
close the courthouse door solely on this basis, we implicitly
express a value judgment on the comparative importance of classes
of legally protected interests.” 403 U. S., at 410–411 (citation
omitted).
In attributing heavy weight to the
floodgates concern pressed in this case, the Court today veers away
from Justice Harlan’s sound counsel.
B
In the Court’s
view Robbins’ complaint poses an inordinate risk of imposing on
vigilant federal officers, and inundating federal courts, for his
pleading “fails to fit the [Court’s] prior retaliation cases.”
Ante, at 16. “Those cases,” the Court says, “turn[ed] on
an allegation of [an] impermissible purpose and motivation.”
Ibid. (citing Rankin v. McPherson,
483 U. S. 378
(1987); Lefkowitz v. Turley, 414 U. S. 70 (1973); and
United States v. Jackson, 390 U. S. 570 (1968)).
Robbins’ suit, the Court maintains, raises a different sort of
claim: that BLM employees went “too far” in their efforts to
achieve an objective that “[a]ll agree” was “perfectly legitimate”:
“trying to induce [Robbins] to grant an easement for public use.”
Ante, at 17. Developing a legal test to determine when
federal officials have gone “too far,” ibid., the Court
asserts, would be an “endlessly knotty” task; the attendant
uncertainty, the Court fears, would bring on a “tide of suits,”
inducing an undesirable timidity on the part of federal officials,
ante, at 22–23.
The Court’s
assertion that the BLM officials acted with a “perfectly
legitimate” objective, ante, at 17, is a dubious
characterization of the long campaign to “bury” Robbins. See App.
49. One may accept that, at the outset, the BLM agents were
motivated simply by a desire to secure an easement. But after
Robbins refused to cover for the officials’ blunder, they resolved
to drive him out of business.[Footnote 3] Even if we allowed that the BLM employees had
a permissible objective throughout their harassment of Robbins, and
also that they pursued their goal through “legitimate tactics,”
id., at 16,[Footnote
4] it would not follow that Robbins failed to state a
retaliation claim amenable to judicial resolution.
Impermissible retaliation may
well involve lawful action in service of legitimate objectives. For
example, in Board of Comm’rs, Wabaunsee Cty. v.
Umbehr, 518 U. S. 668 (1996), this Court held
that a county board of commissioners may cross into
unconstitutional territory if it fires a contractor for speaking
out against members of the Board on matters of public concern. The
Court recognized that terminating a contractor for public criticism
of board practices might promote legitimate governmental objectives
(e.g., maintaining relationships of trust with those from
whom services are purchased). Id., at 674. The Court,
furthermore, instructed that even where the background law allows a
government agency to terminate a contractor at will, the agency
lacks carte blanche to do so in retaliation for
constitutionally protected conduct. Id., at 677.[Footnote 5] The same is true here: BLM
officials may have had the authority to cancel Robbins’ permits or
penalize his trespasses, but they are not at liberty to do so
selectively, in retaliation for his exercise of a constitutional
right.[Footnote 6]
I therefore cannot join the
Court in concluding that Robbins’ allegations present questions
more “knotty” than the mine-run of constitutional retaliation
claims. Because “we have established methods for identifying the
presence of an illicit reason … in retaliation cases,”
ante, at 16, Robbins’ suit can be resolved in familiar
fashion. A court need only ask whether Robbins engaged in
constitutionally protected conduct (resisting the surrender of his
property sans compensation), and if so, whether that was the reason
BLM agents harassed him.[Footnote
7]
C
The Court’s
opinion is driven by the “fear” that a “Bivens cure” for
the retaliation Robbins experienced may be “worse than the
disease.” Ante, at 22. This concern seems to me
exaggerated. Robbins’ suit is predicated upon the agents’
vindictive motive, and the presence of this element in his claim
minimizes the risk of making everyday bureaucratic overreaching
fare for constitutional litigation. See Olech, 528 U. S.,
at 566 (Breyer, J., concurring in result) (“In my view, the
presence of [vindictive action] in this case is sufficient to
minimize any concern about transforming run-of-the-mill zoning
cases into cases of constitutional right.”).
Indeed, one could
securely forecast that the flood the Court fears would not come to
pass. In Passman, the Courts said that it did not
“perceive the potential for … a deluge,” because, under 42 U.
S. C. §1983, “a damages remedy [was] already available to
redress injuries such as petitioner’s when they occur under color
of state law.” 442 U. S., at 248. A similar sideglance could be
cast here. Because we have no reason to believe that state
employees are any more or less respectful of Fifth Amendment rights
than federal agents, §1983 provides a controlled experiment. If
numerous Bivens claims would eventuate were courts to
entertain claims like Robbins’, then courts should already have
encountered endeavors to mount Fifth Amendment Takings suits under
§1983. But the Court of Appeals, the Solicitor General, and Robbins
all agree that there are no reported cases on charges of
retaliation by state officials against the exercise of Takings
Clause rights. 433 F. 3d 755, 767 (CA10 2006); Brief for
Petitioners 48; Brief for Respondent 31. Harassment of the sort
Robbins alleges, it seems, is exceedingly rare. Cf. Olech,
528 U. S., at 565–566 (Breyer, J., concurring in result).[Footnote 8]
One can assume,
arguendo, that, as the Court projects, an unqualified
judgment for Robbins could prompt “claims in every sphere of
legitimate governmental action affecting property interests.”
Ante, at 21. Nevertheless, shutting the door to all
plaintiffs, even those roughed up as badly as Robbins, is a measure
too extreme. Cf. Hein v. Freedom From Religion
Foundation, Inc., post, at 4 n. 1 (dissenting
opinion) (“To the degree … claims are meritorious, fear that there
will be many of them does not provide a compelling reason … to keep
them from being heard.”). There are better ways to ensure that
run-of-the-mill interactions between citizens and their Government
do not turn into cases of constitutional right. Cf.
Bivens, 403 U. S., at 410 (Harlan, J., concurring in
judgment) (“I simply cannot agree … that the possibility of
frivolous claims … warrants closing the Courthouse doors to people
in Bivens’ situation. There are other ways, short of that, of
coping with frivolous lawsuits.” (internal quotation marks
omitted)).
Sexual harassment jurisprudence
is a helpful guide. Title VII, the Court has held, does not provide
a remedy for every epithet or offensive remark. “For sexual
harassment to be actionable, it must be sufficiently severe or
pervasive to alter the condition of the victim’s employment and
create an abusive work environment.” Meritor Savings Bank,
FSB v. Vinson, 477 U. S. 57, 67 (1986)
(internal quotation marks, alterations, and citations omitted). See
also National Railroad Passenger Corporation v.
Morgan, 536
U. S. 101, 115 (2002) (hostile work environments develop “over
a series of days or perhaps years and, in direct contrast to
discrete acts, a single act of harassment may not be actionable on
its own”). Adopting a similar standard for Fifth Amendment
retaliation claims would “lesse[n] the risk of raising a tide of
suits threatening legitimate initiative on the part of the
Government’s employees.” Ante, at 23. Discrete episodes of
hard bargaining that might be viewed as oppressive would not
entitle a litigant to relief. But where a plaintiff could prove a
pattern of severe and pervasive harassment in duration and degree
well beyond the ordinary rough-and-tumble one expects in strenuous
negotiations, a Bivens suit would provide a remedy.
Robbins would have no trouble meeting that standard.[Footnote 9]
IV
Because I conclude
that Robbins has a right to sue under Bivens, I
must briefly address the BLM employees’ argument that they are
entitled to qualified immunity. In resolving claims of official
immunity on summary judgment, we ask two questions. First, “[t]aken
in the light most favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct violated a
constitutional right?” Saucier v. Katz, 533 U. S. 194, 201
(2001). And, if so, was that right clearly established, such that a
reasonable officer would have known that his conduct was unlawful.
Id., at 201–202.[Footnote 10]
The Takings Clause
instructs that no “private property [shall] be taken for public
use, without just compensation.” U. S. Const., Amdt. 5. Robbins
argues that this provision confers on him the right to insist upon
compensation as a condition of the taking of his property. He is
surely correct. Correlative to the right to be compensated for a
taking is the right to refuse to submit to a taking where no
compensation is in the offing. Cf. Dolan v. City of
Tigard, 512 U.
S. 374 (1994) (invalidating a permit condition that would have
constituted a taking); Nollan v. California Coastal
Comm’n, 483 U.
S. 825 (1987) (same).
Robbins further argues that the
BLM agents’ persistent harassment impermissibly burdened his right
to refuse to grant the Government something for nothing. Once
again, he is surely correct. To cover for their mistake in failing
to record the prior easement, BLM demanded, with no legal
authority, that Robbins cede a new easement. Robbins refused, as
was his constitutional right. At that point, BLM might have sought
to take Robbins’ property by eminent domain (assuming the agency
was authorized to do so), or it might have attempted to negotiate
with him. Instead, the agents harassed Robbins and tried to drive
him out of business.
The Court has held that the
Government may not unnecessarily penalize the exercise of
constitutional rights. This principle has been applied, most
notably, to protect the freedoms guaranteed by the First Amendment.
See, e.g., Umbehr, 518 U. S., at 674–675, 686
(freedom of speech); O’Hare Truck Service, Inc. v.
City of Northlake, 518 U. S. 712, 716–720
(1996) (freedom of association); Sherbert v.
Verner, 374
U. S. 398, 403–406 (1963) (freedom of religion). But it has
also been deployed to protect other constitutional guarantees,
including the privilege against self-incrimination,
Turley, 414 U. S., at 82–84, the right to trial by a jury,
Jackson, 390 U. S., at 581–583, and the right to travel,
Memorial Hospital v. Maricopa County, 415 U. S. 250, 254–262
(1974). The principle should apply here too. The constitutional
guarantee of just compensation would be worthless if federal agents
were permitted to harass and punish landowners who refuse to give
up property without it. The Fifth Amendment, therefore, must be
read to forbid government action calculated to acquire private
property coercively and cost-free, and measures taken in
retaliation for the owner’s resistance to uncompensated taking.
Viewing the facts in the light most favorable to Robbins, BLM
agents plainly violated his Fifth Amendment right to be free of
such coercion.
The closest question in this
case is whether the officials are nevertheless entitled to immunity
because it is not clearly established that retaliation for the
exercise of Fifth Amendment rights runs afoul of the Constitution.
The “dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U. S., at 202. As noted, all concede that
there are no reported cases recognizing a Fifth Amendment right to
be free from retaliation. However, it is inconceivable that any
reasonable official could have believed to be lawful the pernicious
harassment Robbins alleges. In the egregious circumstances of this
case, the text of the Takings Clause and our retaliation
jurisprudence provided the officers fair warning that their
behavior impermissibly burdened a constitutional right. See
Hope v. Pelzer, 536 U. S. 730, 739–741
(2002).
* * *
Thirty-six years
ago, the Court created the Bivens remedy. In doing so, it
assured that federal officials would be subject to the same
constraints as state officials in dealing with the fundamental
rights of the people who dwell in this land. Today, the Court
decides that elaboration of Bivens to cover Robbins’ case
should be left to Congress. Ante, at 23. But see
supra, at 14, n. 6. The Bivens analog to
§1983, however, is hardly an obscure part of the Court’s
jurisprudence. If Congress wishes to codify and further define the
Bivens remedy, it may do so at anytime. Unless and until
Congress acts, however, the Court should not shy away from the
effort to ensure that bedrock constitutional rights do not become
“merely precatory.” Passman, 442 U. S., at 242.
For the reasons stated, I would
affirm the judgment of the Court of Appeals insofar as it addressed
Robbins’ Fifth Amendment retaliation claim.[Footnote 11]
Footnote
1
Despite the rapid acquittal,
the trial court denied Robbins’ request for counsel fees, finding
that he failed to prove “the position of the United States was
vexatious, frivolous, or in bad faith.” Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act 1998, §617, 111 Stat. 2519, note following 18 U.
S. C. §3006A. The Court counts this a significant point
favoring petitioners. See ante, at 12 (“[T]he federal
judge who presided at the trial did not think the Government’s case
thin enough to justify awarding attorney’s fees.”). But, as Robbins
notes, the trial court passed only on the prosecutor’s litigation
position, not on whether the allegations of the BLM employees,
which prompted the prosecution, were made in bad faith. Brief for
Respondent 7, n. 5.
Footnote
2
The Court cites
Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001) (suit against
private prison), and FDIC v. Meyer, 510 U. S. 471 (1994)
(suit against federal agency), among cases in which we have
declined to extend Bivens. Ante, at 10. Neither
was a suit against a federal officer.
Footnote
3
Robbins agreed, the Court
relates, “that the Bureau’s employees intended to convince Robbins
to grant an easement.” Ante, at 17. In support, the Court
notes that Robbins posed this question: “[C]an government officials
avoid the Fifth Amendment’s prohibition against taking property
without just compensation by using their regulatory powers to
harass, punish, and coerce a private citizen into giving the
Government his property without payment?” Ante, at 17,
n. 8 (quoting Brief for Respondent 21; alteration in
original). Robbins’ descriptive words—“harass, punish, and
coerce”—are hardly synonyms for “convince.” Robbins has maintained
throughout that the officials’ motives were vindictive, a
characterization amply supported by the record. Indeed, the agents’
seven-year campaign of harassment calls to mind W. H. Auden’s
famous lines: “Their cause, if they had one, is nothing to them
now; They hate for hate’s sake.” There Will Be No Peace, reprinted
in W. H. Auden: Collected Poems 615 (E. Mendelson ed.
2007).
Footnote
4
The Court observes that the
Interior Board of Land Appeals (IBLA) approved some of BLM’s
enforcement actions against Robbins. Ante, at 5–6, 19.
Significantly, however, the IBLA declared that, as it was not a
court “of general jurisdiction,” it had “no authority to invalidate
[BLM action] based on proof of improper motive on the part of a BLM
official or employee involved in the development or issuance of the
decision.” Robbins v. Bureau of Land Management,
170 I. B. L. A. 219, 227 (2006). Accordingly, the
IBLA refused to entertain Robbins’ contention that BLM enforcement
actions were “part of a pattern of activities amounting to willful
violations of civil, criminal, or constitutional law.”
Ibid.
Footnote
5
Invoking Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 563
(1968), the Court, in Board of Comm’rs, Wabaunsee Cty. v.
Umbehr, 518 U. S. 668, 685 (1996), held that
the Board’s legitimate interests must be balanced against the free
speech interests at stake to arrive at the appropriate
constitutional judgment.
Footnote
6
In Mt. Healthy City Bd. of
Ed. v. Doyle, 429 U. S. 274, 287
(1977), the Court held that a defendant in a First Amendment
employment retaliation case can avoid liability by showing that “it
would have reached the same decision as to [the plaintiff’s]
reemployment … in the absence of the protected conduct.” This test,
the Court explained, is necessary to “distinguis[h] between a
result caused by a constitutional violation and one not so caused.”
Id., at 286. Mt. Healthy’s causation standard, as
today’s opinion notes, is applicable here; hence, Robbins’ claim is
not governed by a “motive-is-all test.” See ante, at 20,
n. 10. Thus, if the BLM officials proved at trial that, even if
Robbins had not refused to grant an easement gratis, they
nonetheless would have canceled his permits, harassed his guests,
and filed false criminal charges against him, they would escape
liability for retaliation in violation of the Fifth Amendment
(though perhaps exposing themselves to other sanctions).
Footnote
7
The Government, I recognize,
should not be hampered in pursuing lawful means to drive a hard
bargain. See ante, at 19–20, n. 10. Trespassing,
filing false criminal charges, and videotaping women seeking
privacy to relieve themselves, however, are not the tools of “hard
bargaining.” They have a closer relationship to the armed thug’s
demand: “Your money or your life.” By concentrating on the
allegedly lawful actions the BLM agents took (e.g.,
canceling a right-of-way), ibid., the Court gives a
bloodless account of Robbins’ complaint.
Footnote
8
The rarity of such harassment
makes it unlikely that Congress will develop an alternative remedy
for plaintiffs in Robbins’ shoes, and it strengthens the case for
allowing a Bivens suit. As noted above, every time the
Court declined to recognize a Bivens action against a
federal officer, it did so in deference to a specially crafted
administrative regime. See supra, at 9.
Footnote
9
My “emphasis on the extent and
duration of the harm suffered by Robbins,” the Court asserts,
indicates that under my approach, Robbins “could not obtain relief
without … satisfying an unspecified, and unworkable, ‘too much’
standard.” Ante, at 18, n. 9. My approach, however,
is no less specific nor more unworkable than the approach courts
routinely employ in Title VII harassment cases.
Footnote
10
As I have elsewhere indicated,
in appropriate cases, I would allow courts to move directly to the
second inquiry. See Brosseau v. Haugen, 543 U. S. 194, 201–202
(2004) (Breyer, J., joined by Scalia and Ginsburg, JJ.,
concurring). See also County of Sacramento v.
Lewis, 523
U. S. 833, 859 (1998) (Stevens, J., concurring in
judgment).
Footnote
11
I agree that Robbins failed to
state a claim under RICO and therefore join Part III of the Court’s
opinion.
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