Cato Supreme Court Review, 2006-2007

Mark K. Moller

• Publisher: Cato Institute
• Year: 2007
• ISBN:
  9781933995601
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

Published every September in celebration of Constitution Day, the Cato Supreme Court Review brings together leading legal scholars to analyze the most important cases of the Court's most recent term. It is the first scholarly review to appear after the term's end and the only on to critique the court from a Madisonian perspective.

Death by a Thousand Cuts: Constitutional Wrongs Without Remedies After Wilkie v. Robbins

Laurence H. Tribe*

I. Introduction

Many constitutional violations are discrete events: FBI agents conduct a warrantless wiretap; a judge enjoins the publication of an article criticizing a political leader; a public school principal fires a teacher for expressing his doubts about the Darwinian theory of evolution; a public school teacher leads her class in a group prayer; a government agency takes private property and refuses to pay just compensation. For these kinds of well-defined and bounded violations, some legal remedy is almost always available to the victim—whether in federal court, in state court, or before an administrative agency subject to judicial review. Other constitutional violations consist of an episodic series of small events—events that in isolation may verge on the trivial. But—as the metaphor “death by a thousand cuts” suggests—a series of small harms, in unison or in sequence, can add up to one very large harm indeed. This article explores the problems raised by those constitutional wrongs that consist of such patterns of behavior. It does so through a close examination of the Supreme Court’s recent decision in Wilkie v. Robbins,¹ a case that addressed precisely the sort of pattern that, viewed as a whole, can render unconstitutional the conduct involved, and the planto engage in it.

I should disclose at the outset that I represented the respondent, a cattle rancher named Frank Robbins, pro bono before the Supreme Court, working with the Harvard Law School Supreme Court Litigation Clinic. His case involved a pattern of harassment, intimidation, and threats by federal employees who demanded that he grant an easement to the public. The pattern involved federal government officials who sought to wear down his resolve in insisting that the government either negotiate a purchase of the easement or take it through eminent domain and pay him just compensation. But this article is about more than just one Supreme Court case. It is about property rights in general because, after Robbins, government officials have a blueprint for obtaining private property without having to pay for it. All they need do is single out a property owner and gradually bring the government’s vast regulatory and other powers to bear on the owner’s shoulders, making it clear that the resulting burden will be lifted if—but only if—the owner will simply “give” some valuable property interest to the government.² More broadly, however, this article also addresses constitutional rights generally, exploring the future viability of constitutional tort suits against federal officials under the Supreme Court’s Bivens line of cases.³ I argue that the Supreme Court’s decision in Robbins dealt a severe and unjustifiable blow both to individual rights—including, but not limited to, rights of private property—and to the role of Bivens remedies in implementing those rights, thus making them real.

The Court’s Bivens analysis in Robbins acknowledged that both state and federal avenues of relief could well prove inadequate in the kind of situation Robbins faced—and did indeed prove inadequate to protect Robbins from the cumulative harm he was made to suffer for insisting on his rights as a property owner. But even while conceding that the combined effect of all the non-Bivens relief available to Robbins was predictably insufficient to address a pattern of conduct whose unconstitutionality lay in what the pattern was designed to accomplish and in the harm the pattern inflicted in the course of that effort, the Robbins Court declined to fill the resulting remedial gap with the usual form of Bivens relief. Instead, the Court departed from the core premise of Bivens—that the importance of constitutional rights justified implying a cause of action directly from the Constitution; and for the first time since Bivens it held, without any indication from Congress that it disfavored the application of a Bivens remedy in such circumstances, that a private citizen could not sue a government official for a constitutional violation, even in the absence of any alternative to such a suit that would operate to deter that kind of violation or at least redress it when deterrence failed.

The Court reached that conclusion by transforming the Bivens presumption in favor of a federal cause of action into a general, all-things-considered, balancing test. What makes the ruling in Robbins especially frustrating is not only the Court’s unacknowledged and unexplained transformation of Bivens but also its mishandling, in Robbins itself, of the balancing test it purported to be applying. Thus, the Court held that a Bivens action was unavailable for Robbins’s takings claim because of the supposedly inherent difficulty of defining a workable standard to determine when a pattern of conduct goes so far as to violate a constitutional right. Apart from everything else that may be said (and will be said below) to address that concern as a supposed justification for leaving rights without protection, one decisive irony is that the Court’s holding will not serve even to avoid the problem ostensibly motivating it, because substantively identical claims will get to federal court anyway—either as claims for injunctive and/or damages relief against state officials under 42 U.S.C. § 1983,⁴ or, in piecemeal form, as claims against federal officials via judicial review of final agency action under the Administrative Procedures Act (hereafter, the APA).⁵

After Justice David Souter’s opinion for the Court in Robbins, an opinion at once evasive in its logic and immodest in its reach, the best that can be said of the Bivens doctrine is that it is on life support with little prospect of recovery. In Robbins, the Court denied a cattle rancher whose business was deliberately ruined a Bivens remedy against the federal agents who retaliated against him over a nearly decade-long period—by means both of independently illegal acts and of abuses of their regulatory authority—for his refusal to surrender his Fifth Amendment Takings Clause rights by granting the government an easement across his property without just compensation. That rejection of a remedy under Bivens should have come as no surprise to anyone watching the recent trajectory of the Bivens doctrine. It certainly did not come as a surprise to me, as the brief writer and oral advocate for Robbins and as the attorney who had argued and lost Schweiker v.Chilicky,⁶ the decision that had dealt the most recent major blow to Bivens as a precedent. But it was a bitter disappointment nonetheless. Hope springs eternal, and when it is born of a source as deeply embedded in our culture as the Bill of Rights and the principle of government accountability for constitutional wrongs, its trashing is never an easy experience.

Although the Court’s failure to afford a Bivens remedy was no surprise, the same cannot be said about the lengths to which the Court went to reach the Bivens question and to answer that question as it did. The Court sacrificed on a false altar of judicial modesty— false because the Court’s holding was based on its unexplained shirking of a prototypically judicial function—both the limited appellate jurisdiction of the federal courts and the bedrock principle that the government’s objectives “cannot be pursued by means that needlessly chill the exercise of basic constitutional rights.”⁷ Private property rights are thus once again relegated to “the status of a poor relation” of many other constitutional guarantees.⁸

The remainder of this article proceeds as follows. Part II discusses the factual background of Robbins and the legal arguments on both sides. Part III then explores the Robbins opinion with regard to its implications for property and other individual rights. Part IV focuses on the Robbins Court’s Bivens analysis and discusses the Court’s willingness to allow wrongs without remedy. Part V focuses on how the Court exceeded thoroughly settled limits on its exercise of interlocutory appellate jurisdiction by reaching the Bivens issue in this case rather than deciding simply whether the conduct by Bureau of Land Management (BLM) officials that Robbins had alleged and sought to establish at trial violated a clearly established constitutional right against retaliation for the exercise of one’s Fifth Amendment property rights. Part VI then briefly concludes the article.

II. The Background of the Litigation: Oh, Give Me a Home Where the Bureaucrats Roam … “Your Easement Or Your Life!”

A. The Factual Background of the Case

In the early 1990s, a Wyoming office of the federal Bureau of Land Management (the BLM) was on a mission to obtain an easement over a portion of the South Fork Owl Creek Road cutting across the High Island Ranch, a privately owned cattle and guest ranch in Hot Springs County, Wyoming. Driven by a wholly legitimate desire to increase already existing access to the national forest abutting the ranch, the BLM was able to convince the ranch’s then-owner, George Nelson, to grant the U.S. government a public easement over the Owl Creek Road in exchange for a right of way over a portion of a nearby road on federal land.

In a bungle that initiated the chain of events ultimately leading to this lawsuit, the BLM failed to record the easement Nelson had granted. Shortly afterward, Nelson sold his ranch to Frank Robbins, who was completely unaware of the government’s easement. Under the applicable Wyoming law, the BLM’s failure to record meant that Robbins took title free of the government’s Nelson easement. Upon realizing their embarrassing mistake, BLM officials called Robbins and “demanded an easement to replace Nelson’s.”⁹ When Robbins proved willing to negotiate a fair price but “unwilling to capitulate” to the BLM’s “unilateral demands”¹⁰ that he provide the easement free of charge, the BLM officials, apparently just as unwilling to accept the consequences of their own mistake and pursue one of the legally available means for obtaining the easement,¹¹ instigated a campaign of actions designed, as one former BLM employee reported, to “bury” Robbins.¹² It quickly became apparent that this was no idle threat. BLM officials embarked on a scheme to “get … [Robbins’s] permits and get him out of business,”¹³ engaging in a pattern of egregious misconduct consisting of both independently illegal actions and demonstrable abuses of lawful authority, substantiated by “ample evidence”¹⁴ on the summary judgment record.¹⁵

The agents’ independently unlawful actions included intentionally trespassing on Robbins’s land,¹⁶ inciting a neighbor to ram a truck into Robbins while he was on horseback,¹⁷ breaking into his guest lodge,¹⁸ filing trumped-up felony charges against him without probable cause,¹⁹ and pressuring other government agents to impound Robbins’s cattle without cause.²⁰ The officials’ actions that might have been lawful in other circumstances but were unauthorized as means to the unconstitutional and thus illegal ends to which they were put here—the extraction, without any payment or exchange, of an easement to which the government had no colorable claim²¹— included canceling the right-of-way previously negotiated with Nelson that was to have run with the land;²² filing doubtful administrative charges against Robbins and selectively enforcing others,²³ and then relying upon these charges to deny Robbins the recreational use and grazing permits essential to his cattle drive business;²⁴ refusing to keep the main access route to Robbins’s property passable while fining Robbins for repairing the access road that the previous owner had been allowed to maintain;²⁵ and interfering with his business by “videotap[ing] ranch guests during [a cattle] drive, even while the guests sought privacy to relieve themselves.”²⁶

B. The Litigation

In attempting to respond to the rising mountain of dubious and selective charges against him, Robbins fought a predictably losing battle through the administrative appeals process to the Interior Board of Land Appeals (IBLA)—which, among other things, held itself to be without statutory authority to consider Robbins’s essential claim that the actions taken against him were unconstitutionally motivated and formed part of a pattern of unconstitutional harassment.²⁷ Simultaneously, he was defending himself against the false criminal charges brought against him and attempting to run his business in the face of the BLM officials’ attempts to make that as difficult as possible. Furthermore, the administrative appeals process afforded Robbins no opportunity to seek redress for the numerous individual actions of the BLM officials unrelated to “final agency action,” or for the cumulative effect of the officials’ independently unlawful actions, as the Court expressly recognized:

But Robbins’s argument for a remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor Robbins invokes, “death by a thousand cuts.” Brief for Respondent 40. It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.²⁸

In 1998, having already endured four years of harassment, Robbins brought an action in federal court against the BLM officials, under Bivens v. Six Unnamed Agents,²⁹ for violation of his Fifth Amendment rights under the Takings Clause.³⁰ Robbins also brought RICO claims against the defendants for their repeated attempts to extort the easement from him.³¹

The district court granted the defendants’ motion to dismiss both claims, but the Tenth Circuit reversed and held both that Robbins had pleaded damages with adequate specificity under RICO and that the APA and the Federal Tort Claims Act (FTCA) did not preclude relief under Bivens, except with regard to violations consisting of final agency action for which review under the APA was available.³²

On remand to the district court, the defendants again moved to dismiss Robbins’s claims, this time solely on qualified i...

Table of contents

• FOREWORD
• Introduction
• Challenges to the Rule of Law: Or, Quod Licet Jovi Non Licet Bovi
• Death by a Thousand Cuts: Constitutional Wrongs Without Remedies After Wilkie v. Robbins
• First Amendment Basics Redux: Buckley v. Valeo to FEC v. Wisconsin Right to Life
• When Easy Cases Make Bad Law: Davenport v. Washington Education Association and Washington v. Washington Education Association
• BONG HiTS 4 JESUS: The First Amendment Takes a Hit
• Gonzales v. Carhart: An Alternate Opinion
• Litigating to Regulate: Massachusetts v. Environmental Protection Agency
• Narrow Issue of Taxpayer Standing Highlights Wide Divisions Among the Justices
• The Non-Preferment Principle and the “Racial Tiebreaker” Cases
• Protecting Consumers From Consumer Protection: Watters v. Wachovia Bank
• Weyerhaeuser and the Search for Antitrust’s Holy Grail
• Punitive Damages and the Supreme Court: A Tragedy in Five Acts
• Looking Ahead: October Term 2007
• Contributors