John G. Roberts, Jr.: We'll hear argument next in Case 06-219, Wilkie versus Robinson. General Garre.
Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court: Respondent asks this Court to recognize a new constitutional tort under Bivens and the Just Compensation Clause--
Antonin Scalia: Mr. Garre, could you crank up the thing? The sound isn't working, I don't think, Mr. Garre.
John G. Roberts, Jr.: I think it needs a little upcranking. Good.
Gregory G. Garre: --Hopefully that's better. --recognize a new constitutional tort under-- Bivens and the Just Compensation Clause that would subject public officials to personal liability for conduct that he concedes does not amount to a taking. Recognizing that constitutional tort would require this Court to extend Bivens to an entirely new context, it would disregard limits that have existed for centuries on Just Compensation Clause claims, and it would skew the enforcement of important public land use objectives and thereby threaten public resources and public lands.
Ruth Bader Ginsburg: General Garre, there's a record here that the district court said there was substantial evidence, enough to go to trial, of a pattern of harassing conduct that included trespasses on this man's lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle? This man says, this has been done to me by officers of my government. Is there a remedy?
Gregory G. Garre: Justice Ginsburg, there are a number of avenues that he could have sought to prevent this alleged conduct and that he did invoke. We don't think that there is a remedy under Bivens or an inferred action under the Just Compensation Clause.
Ruth Bader Ginsburg: Well, what is, what is there that will really be effective, because if you tell me challenging each citation for violating the grazing permit--
Gregory G. Garre: He can challenge the citations for challenging the... canceling the grazing permits--
Ruth Bader Ginsburg: --And then the behavior will continue and he'll get one more and one more and one more.
Gregory G. Garre: --Well, I don't think that that's a reasonable inference, Justice Ginsburg. In fact, the IBLA considered and rejected each of the alleged administrative actions on which his claim is now based.
Anthony M. Kennedy: May I ask a quick question. I had the same list of alleged acts, and I think many of them are uncontested, that Justice Ginsburg mentioned. Just as a matter of policy, can you inform me, when the Solicitor General's Office takes this case do you look into whether any of these things happen and the Justice Department issues a warning, don't do this any more? If these things are as Justice Ginsburg explained you don't defend all of those actions?
Gregory G. Garre: Well, our position is that he hasn't established a constitutional tort or an actionable claim under RICO.
Anthony M. Kennedy: I know that.
Gregory G. Garre: To answer your question, the Government takes these types of allegations seriously. It's taken seriously at the line level at the Bureau of Land Management. It's taken seriously within the Department of Interior and it's taken seriously at the Department of Justice.
Anthony M. Kennedy: Because if this, if this continues, your argument... and I understand your argument that there's no essential free-standing cause of action for damages... basically means he has a right to go broke with attorneys' fees challenging each individual incursion, each individual wrong. Well, again that assumes that he wouldn't get any relief out of the IBLA. That assumes that if he had gone to the IBLA and said, you canceled my grazing permits for grounds that weren't valid, that the BLM would have proceeded to engage in the same conduct. In fact, the IBLA--
Ruth Bader Ginsburg: Well that's exactly what he alleged and he said, and it happened for over a five-year period.
Gregory G. Garre: But we know from the decisions of the IBLA that he did challenge that they rejected the grounds that he--
Antonin Scalia: They may be wrong, too. They may have been as much a part of the conspiracy as the officers who conducted it. And there are indeed those in the West who think that the BLM does, does act quite arbitrarily and high-handedly and is, is upheld by, by the, the administrative courts. Now, if that's a problem, what's the solution to that problem?
Gregory G. Garre: --Well, Justice Scalia, to bring an APA action to Federal court challenging the final decisions of the IBLA.
Antonin Scalia: That's one by one. Every time there is another trespass he has to go all the way through the administrative procedure and then when the, when the administrative court says, well, it was okay, then he has to go through the regular Federal courts. That doesn't seem to me like a realistic remedy, not for somebody who claims he's being systematically harassed for five years as, as is the claim here.
Gregory G. Garre: Again, I think you have to assume that his claims would not succeed either at the administrative level or at the APA level, and if he got--
Antonin Scalia: I don't assume that at all. Even if they, even if they succeed, they say, yes, you're right, they trespassed, good for you. I mean, what is the remedy if they did trespass? What administrative remedy does he obtain.
Gregory G. Garre: --Well, if there's a trespass he can go, he can obtain an action under the Federal Tort Claims Act. A trespass is an unauthorized taking. That's the way that this Court has treated it 1952 in the Hasselly case.
Antonin Scalia: What... the photographing of his guests who he brings onto his ranch to hunt and they pay him for that. And then he claims that the BLM follows them just to harass them, just taking photographs. What relief could he get for that?
Gregory G. Garre: Well, he claimed that they were trespassing on his lands.
Antonin Scalia: Let's assume they wasn't trespassing.
Gregory G. Garre: Well, he'd raised that objection before the IBLA and the IBLA concluded, and we think reasonably, that, given the history of the disputes with this individual, given his litigious nature, that it was reasonable for the BLM officials who were out there to be documenting his trespasses on public lands, and that's an important dimension of this case.
Ruth Bader Ginsburg: I thought there was one aspect of the videotaping his guests, that the Government was doing it on its own land, on public land. They had cameras and the cameras were stationed so they weren't trespassing, they were just making the guests feel uncomfortable.
Gregory G. Garre: To document, to document his trespasses on other lands, and that's... the citation to the IBLA decision is at footnote 2 of our reply brief and it discusses that allegation in depth. In any event--
Ruth Bader Ginsburg: I would really like to have your answer to my opening question, and I said: If your only answer is each time something, he is charged by the BLM people, he goes one at a time, engaging a lawyer, spending a lot of time, but it was, one of the briefs called it, dying a thousand deaths. He doesn't want that. He wants to say: Stop, stop this whole pattern; not one citation; stop this whole pattern. How does he get that remedy?
Gregory G. Garre: --He does not have a remedy under the Just Compensation Clause or Bivens, Justice Ginsburg.
Ruth Bader Ginsburg: What does, what does he have?
Gregory G. Garre: He can challenge, he can challenge these actions under the administrative process available to him under the--
Anthony M. Kennedy: --Piecemeal.
Gregory G. Garre: --APA--
Anthony M. Kennedy: Piecemeal.
Gregory G. Garre: --like any number of other contexts.
Anthony M. Kennedy: Does he have any action that is other than piecemeal?
Gregory G. Garre: He has to challenge each administrative action--
Anthony M. Kennedy: I take it the answer is no.
Gregory G. Garre: --that he claims is unlawful.
John G. Roberts, Jr.: Were any of these administrative actions found to be unfounded? In other words, did he win any of the trespass citations?
Gregory G. Garre: He did not. In fact, the IBLA found that the BLM had a right of administrative access to cross his lands to get to public lands which it was administering. And again, this case would have been quite different if the IBLA had found that the BLM officers were acting without legitimate authority.
Stephen G. Breyer: I'm surprised you say piecemeal. I would have thought most agencies in the government have like an inspector general or someone that you can complain.
Gregory G. Garre: And they do.
Stephen G. Breyer: You can write them a letter and you say, look at what's been going on, they've been trespassing, they've indicted me on a false charge; I want you to see the whole list here and I'd like you to do something about it. And if they don't do anything about it, you go to your senator. Maybe you can go to the newspapers. I mean, has any of that happened here?
Gregory G. Garre: It has, Justice Breyer. It has.
Stephen G. Breyer: And what's been the result of that?
Gregory G. Garre: The result of that is it was determined that these actions by these line officers of the Bureau of Land Management were perfectly appropriate, that they were dealing with someone who has systematically violated the permits and conditions that are found--
Ruth Bader Ginsburg: Who made that, who made that determination, including the selective citations?
Gregory G. Garre: --I believe there was an inspector general investigation, investigation within the Department of Interior that--
Ruth Bader Ginsburg: I thought the Department of Interior reached a settlement agreement in which they told the line people at BLM to stop.
Gregory G. Garre: --There was a settlement agreement, Justice Ginsburg. But the Department of Interior stands behind the actions that are issued, at issue in this case, and I think--
Ruth Bader Ginsburg: Nonetheless, they did enter a settlement which included that this behavior was going to stop.
Gregory G. Garre: --Well, I'm not sure that that's a fair characterization. I mean, like any party to litigation, any party to multiple lawsuits and claims, there are many reasons why it might be deemed in the interest of a person to agree to a settlement. And I don't think it's fair to--
Ruth Bader Ginsburg: Would you agree at least to a minimum that we must accept for purposes of this proceeding that what the complaint alleged, and what the district court said on summary judgment, there was sufficient evidence to go to a trial. That that's true. So we have to accept his allegations that there were selective citations for violations of grazing... grazing laws, that they broke into his lodge and messed the place up?
Gregory G. Garre: --This Court has to accept those factual allegations, to--
Ruth Bader Ginsburg: Okay. So that's--
Gregory G. Garre: --to be sure. But the court of--
Ruth Bader Ginsburg: --So that's the case we have. And you're telling me that the only remedy a citizen, assuming the truth of those allegations, is to fight these actions one by one?
Gregory G. Garre: --That's a fulsome remedy, Justice Ginsburg, when you think of the claims that could be brought administratively under the Administrative Procedures Act, under the Federal Tort Claims Act, to receive damages, to receive injunctions--
Antonin Scalia: What damages would you get for the trespass of a... one, one BLM agent on your land? A lot of money you're going to get for that? Would it, would it come anywhere close to reimbursing you for the lawyers' fees that it's taken to go, to go all the way through the litigation?
Gregory G. Garre: --If the allegation is that these trespasses have in effect deprived me of my property which is my business, then conceivably he could make a request for a large amount of damages.
Antonin Scalia: He doesn't say it deprived him of his property which is his business.
Gregory G. Garre: No, I think--
Antonin Scalia: He is saying it's a trespass; get off my land.
Gregory G. Garre: --He, he has made both claims, Justice Scalia. And I think... he has, he has complained about BLM officials exercising the right of administrative access, which has been confirmed at the administrative level and which is well settled. And he has made the more general complaint that these trespasses have... and interfered with his businesses and interfered with his property. He filed a, a bond in this Court seeking, claiming the damages were in several million dollars related to the business. So that--
Ruth Bader Ginsburg: Can he get injunctive relief? You said something about, that, you said they may seek to enjoin conduct that they claim will amount to an uncompensated taking. Can he have this litany of things that have happened and go into a court and say court, enjoin those--
Gregory G. Garre: --Certainly he could under the APA. He could challenge the administrative actions he complained about, and if court concludes those are unauthorized or unconstitutional he could obtain an injunction.
Ruth Bader Ginsburg: --He can bring, he can bring this, he could bring this not one action at a time, but he could complain all at once about everything?
Gregory G. Garre: Well, the other thing to keep in mind is that many of these discrete administrative actions... for example, take the cancellation of the permits. That was based on a course of conduct that included 20 formal trespasses, disregarding trespass notices by the BLM, 20 violations of his grazing permits. All of that would be part of a record before the IBLA and before a Federal court in an APA. It would have an opportunity to review those allegations and determine whether or not the alleged Federal action was unlawful. And if a court believed--
Ruth Bader Ginsburg: He could... he could not go into a Federal court with a Federal question? He would have to go to the initial decision maker, then the I--
Gregory G. Garre: --He would have to exhaust his administrative remedies, just like any number of other people who believe that they have been wronged by the Federal Government.
Antonin Scalia: Part of his claim is... is selective enforcement. You know, maybe he did trespass, maybe some of his cattle did stray on somebody's land. But they are beating on him because of what they say is his failure to give a reciprocal easement which the Government is entitled to. To what extent was any of the administrative approval of the BLM agents' actions, to what extent was that based on the legitimacy of seeking to extract this reciprocal easement from him? Because I don't see that it's legitimate at all.
Gregory G. Garre: Well, the I... let me answer that in two ways. First the IBLA found that there was not an effort to extort or blackmail Mr.... the Respondent for exercising his rights.
Antonin Scalia: Was that because the Government was entitled to the reciprocal easement? Is that why they said that?
Gregory G. Garre: Well--
Antonin Scalia: It wasn't extortion because he should have given the easement.
Gregory G. Garre: --No. I don't think that's what the IBLA found and we cite the part of the IBLA record at footnote 2 of our reply brief. Secondly it's well established that the Government can seek reciprocal arrangements with respect to property. The Court in the Leo Sheep case forced the Government to seek reciprocal arrangements.
Antonin Scalia: Not after, not after they have already given away... I mean, yes; they could come to him anew and say I'll tell you what, if you give us this easement we'll give you yet another one.
Gregory G. Garre: That's true.
Antonin Scalia: But he had one in, from the past, which... which his predecessor had given a reciprocal easement for, and the Government failed to record the easement and therefore was is deprived of it.
Gregory G. Garre: That's true. But I think it's important to keep in mind the scope of the claim before the Court.
Antonin Scalia: And they're mad at him for not giving back that easement which they failed to record.
Gregory G. Garre: The BLM doesn't have to stop enforcing its laws and regulations once someone refuses to enter into reciprocal arrangements. There are thousands of reciprocal arrangements.
Antonin Scalia: It wouldn't be reciprocal. What was the Government offering to give him in exchange for his, his reaffirming the prior easement that they had failed to record? What was the Government giving him in exchange?
Gregory G. Garre: A valuable right-of-way, Justice Scalia, that... that was for 30 years, that covered 14 miles of public road--
Ruth Bader Ginsburg: --But that's what his predecessor had.
Antonin Scalia: He had that already.
Gregory G. Garre: --Well, but that did not convey with the property. It had to be reassigned in order for Mr. Robbins to take advantage of that right-of-way.
Antonin Scalia: I did not... I did not understand that.
Gregory G. Garre: Absolutely. And it's in the regulations. The right-of-way has to be reassigned, and it wasn't going to be reassigned because Respondent refused to agree to the reciprocal easement and because he refused to make rental payments.
Anthony M. Kennedy: As originally negotiated, with I think Nelson. Was the right-of-way cancellable at any time? Or how long would the right-of-way last?
Gregory G. Garre: The right-of-way was for 30 years which was long than the 20-year easement that the Government got in exchange. And this something that was negotiated at arm's length by parties that didn't have the acrimonious relationship that developed between Respondent and the BLM.
John G. Roberts, Jr.: Counsel, I... I think part of what's happening here is there is difference between the regulation on the books and how they are enforced. Just as a hypothetical, let's say they don't... the Government doesn't get its reciprocal easement that it wants, and so it says look, we normally don't strictly enforce these cattle trespass things, but we are going to go by the book with this guy until he gives us the right-of-way. Every time his cattle cross over the line we are going to hit him with a trespass citation. They don't do it for anybody else but, they're going to do it for him because they want to get the reciprocal right-of-way. Is that appropriate or inappropriate?
Gregory G. Garre: Well, first I don't think it gives him a cause of action under Bivens or the Just Compensation Clause. Second--
John G. Roberts, Jr.: So that he can't... but you're saying his remedy is to challenge each one. But actually each one, his cattle did trespass, so he doesn't have a good case. It's just that out in the West they don't actually give citations every time a cow crosses the river.
Gregory G. Garre: --Then I, then I don't think he is a very sympathetic plaintiff to be complaining that he is entitled to violate BLM rules or regulations. There is a certain amount of give and take that we think is inherent in these reciprocal arrangements and we think that the Just Compensation Clause tolerates. These are, the Just Compensation Clause or property rights here are protected fundamentally by State law. That's why any unauthorized action by the Government is a trespass, which is, which is dealt with under State law. The Just Compensation--
Stephen G. Breyer: Well, why is it a State law matter? Why didn't he know about this possibility? Why didn't he know that his predecessor in title had granted? Why wasn't there an actual notice, given the fact that everybody in this area of the country seems as a matter of course to give mutually beneficial rights-of-way? I agree it wasn't recorded.
Gregory G. Garre: --I think he was on notice. The BLM made a determination that because it wasn't recorded, it wouldn't seek to enforce that against Respondent. It may be that it was... it made a legal error on that; I don't know. But it made that determination--
Ruth Bader Ginsburg: That's a given in the record. The record is that he was not on notice. So whether one says, gee that's unlikely if he wasn't--
Gregory G. Garre: --But in any event, the point is that the BLM recognized that it had to negotiate a new reciprocal arrangement with Respondent and it sought to do so.
Ruth Bader Ginsburg: --And it's trying to cover for its own sloppiness or carelessness in not recording--
Gregory G. Garre: Well, it, it's trying to seek, establish a new reciprocal arrangement. Regardless of why it was back in the position of having to do so, it did so in a way that it did in any number of other situations that did arise.
Anthony M. Kennedy: Can I ask you about the Bivens theory here before your time runs out? Doesn't Davis versus Passman help the Respondent here?
Gregory G. Garre: I, I don't think so, Your Honor. I think what is distinct about the Bivens claim here is first Bivens and Just Compensation Clause claims are fundamentally incompatible. And that in Bivens, its damages are nothing. Here the constitutional right actually explicitly provides a remedy, just compensation. Secondly, just compensation claims are claims against the Government.
Anthony M. Kennedy: Well that's because we assume it's focused just on his property and that the property was ultimately the thing that was in issue. But if you have all these other retaliatory actions, and wrongful actions taken by the Government tangential to this dispute, I take it Davis versus Passman, broadly read, says we can use Bivens if there is no other way to get a remedy against the Government.
Gregory G. Garre: Well... two points. First, Davis versus Passman was decided in a day in which this Court was much more likely to infer new causes of action from the Constitution or from statutes. The Court in its recent cases, most recently Malesko, has said that it's sworn off that habit, and it's refused to recognize any new Bivens action in 25 years since those cases were decided. Secondly, the Respondent here has ample remedies and avenues that he could seek. If he believes that there has been unauthorized trespass he can seek damages under the Federal Tort Claims Act.
Anthony M. Kennedy: Suppose we think... suppose we disagree with you on the latter point. We think he is really in a bind; there's not really anything he can do. Doesn't that invoke the Davis versus Passman rationale?
Gregory G. Garre: I--
Anthony M. Kennedy: To expand... it would be an expansion of Bivens.
Gregory G. Garre: --It would be closer to it but the Court would still have to confront the question of whether it would be appropriate to infer a constitutional tort under the Just Compensation Clause. And we would urge the Court not to do so. There is an overarching question here of qualified immunity. Whatever is true with respect to whether this new constitutional tort should be created towards other claims before the Court, the Petitioners on this case were not on clear notice that their actions in responding to someone who had systematically violated the rules and regulations, which... on the books for some time... would subject them to personal damages actions and in fact treble damages under the RICO statute. For that, for that--
Antonin Scalia: If a... including, you know, busting into his lodge and disrupting the furniture and all of that, they thought that that was probably--
Gregory G. Garre: --Well, if that's true--
Antonin Scalia: --probably allowed?
Gregory G. Garre: --If that's... they would be on notice, that that conduct if true could subject them to a tort action under the Federal Tort Claims Act. There is no decision that the court of appeals or Respondent has pointed to that would put the Petitioners here on notice in the specific situation they confronted, that their actions could subject them to a constitutional tort which had never been recognized by any court, whether their actions could subject them to treble damages under RICO.
Antonin Scalia: Is that a test for... for... for qualified immunity? You have to know... not only--
Gregory G. Garre: You have to have--
Antonin Scalia: --It's not enough to know that your action was wrongful? You have to know the particular statute or constitutional provision under which a remedy would be sought?
Gregory G. Garre: --Yes. The first question is whether he has established a violation of the right. And the rights that are alleged in this case that are before this Court, or a right under the compensation clause of the Fifth Amendment to--
John G. Roberts, Jr.: So you're suggesting they would not be immune from a State law trespass action?
Gregory G. Garre: --No. The... the... the Congress has waived the sovereign immunity from those types of claims under the Federal Tort Claims Act.
Anthony M. Kennedy: The people who had done this--
Ruth Bader Ginsburg: --But the Federal Tort Claims Act is against the United States. It's not against the--
Gregory G. Garre: It's against the United States if they are acting within the scope of their conduct. If it's unauthorized actions outside the scope of the conduct, then they can go directly against the individuals. That's--
Ruth Bader Ginsburg: --But then it wouldn't be a Federal Tort Claims Act.
Gregory G. Garre: --Well, then it would be additional suits in State court. They could also... there are also State, Federal and criminal laws that they could seek to invoke or have invoked. But--
David H. Souter: But respect to the RICO claim, assuming the RICO claim is upheld, what do you say to your brother's argument that there is no history of qualified immunity for RICO claims? That the qualified immunity doctrine addresses the, the kind of development of squishier law under... under 1983. So that you simply have not qualified immunity.
Gregory G. Garre: --Two things, Justice Souter. First the argument was not raised below; we don't think it's properly before the Court. Second, the question under qualified immunity, and this Court made this clear in the Wyatt case and again in the Knight case, it doesn't look to the particular offense. It looks to the nature of the responsibility that the Government officials are performing. And here the nature of the responsibilities are enforcing grazing permits, enforcing access to public lands, activities that BLM officials have discretion and have had discretion for more than a century to enforce. And we think that falls squarely within the rubric of qualified immunity.
David H. Souter: Well that may be a very... it seems to me that those may be good arguments, or at least relevant arguments against the applicability of RICO in the first place. But if RICO is found to have been violated, I take it it would be an extension of qualified immunity jurisprudence--
Gregory G. Garre: I don't--
David H. Souter: --to, to apply it to a RICO defendant.
Gregory G. Garre: --With respect, I don't think it would be. First, the large portion of the courts of appeals that have addressed this have concluded that qualified immunity principles do extend to RICO. And second, again, the focus of the inquiry is on the nature of the responsibilities. It's not on the particular offense alleged. It's not on whether there's a violation of that offense. It's the nature of the responsibilities, and here these responsibilities, enforcing permits enforcing access and use of public land, and protecting against abuse of those lands, are things that BLM officials and other government officers have exercised their discretion to do for more than--
Stephen G. Breyer: If this case were identical, everything's the same, except that the officials involved are state officials, would there be a 1983 action?
Gregory G. Garre: --Well, no, because we don't think that there's a violation of the Just Compensation Clause when someone doesn't take property, when someone doesn't act through allegedly--
Stephen G. Breyer: That's a different... that's a different reason. That's a merits defense. I just wondered if--
Gregory G. Garre: --Oh, are you... the question with respect to qualified immunity?
Stephen G. Breyer: --Yeah. You're saying there is no Bivens action, period.
Gregory G. Garre: Well, we think that qualified immunity now--
Stephen G. Breyer: No, I'm not even thinking of it. I just wonder if 1983 would apply and it would be clear that there is an action. If you win, there would be no problem.
Gregory G. Garre: --No, because there has been no violation of the substantive Fifth Amendment right and there has been no violation of Bivens. It's important to recognize the overarching context of how the Federal Government manages the public lands. There are... there are numerous reciprocal arrangements that could be affected by this. Any time a landowner refuses to enter into a reciprocal arrangement, he can then turn around in any government action that is taken against that landowner, all he has to do is add on an element of wrongful subjective intent, and he can bring a constitutional tort claim, or even a RICO claim like the respondent here, and subject officers to the threat of personal liability. And we think that this would have a significant skewing effect on legitimate government decision making. If I could reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Tribe.
Laurence H. Tribe: Mr. Chief Justice, and may it please the Court: There is a dramatic contrast between the instantaneous judgments a school principal might have to make in the face of complicated decisions like Tinker, and a deliberate decision over a course of almost a dozen years made by officials of the Bureau of Land Management that the greater retaliate against someone for refusing to relinquish his property to the government without any compensation. You don't have to have taken a special course in constitutional law to know that that is clearly forbidden.
Antonin Scalia: Mr. Tribe, can I get something straight? Is it indeed correct that what the government was seeking here was an exchange of easements, that the government was going to give one and your client would give the other?
Laurence H. Tribe: No, Justice Scalia, that's not correct. That was what they did with Nelson, his predecessor.
Antonin Scalia: With the predecessor in interest of your client.
Laurence H. Tribe: That's right. And what happened--
Antonin Scalia: Did what the government gave to your predecessor of interest, did that easement continue? The government has just said that it expired.
Laurence H. Tribe: --The government is wrong. It continued.
Antonin Scalia: That's how I understood it.
Laurence H. Tribe: It ran with the land, it was part of what he brought. If it had expired--
David H. Souter: This is the easement over the roadway.
Laurence H. Tribe: --The right-of-way over the government's roads.
David H. Souter: As opposed to the grazing easement.
Laurence H. Tribe: As... that's right. The right-of-way over the road of access, which they not only canceled in July of 1985 but refused to maintain themselves, so that he couldn't really access the ranch.
John G. Roberts, Jr.: If they finally canceled it, how did it... I mean, if it runs with the land, they don't have the authority to cancel.
Laurence H. Tribe: They didn't have the authority to cancel it simply because of the transfer of the land. They allege that he had made various technical violations on account of which they canceled it. But the key point is, that was supposed to be the quid pro quo, that is, they have maintained all along that this case is about that right-of-way and what an ingrate the respondent is that he wants to continue enjoying it and not give the easement. Well, he didn't enjoy it after July of 1995 when it was canceled. They wouldn't have had to cancel it for alleged violations.
Antonin Scalia: I don't care whether it was canceled, but I must say, if they were just seeking a fair exchange of reciprocal easements, which landowners do all the time--
Laurence H. Tribe: Right.
Antonin Scalia: --And the system of lands out there can't work without it.
Laurence H. Tribe: Uh-huh.
Antonin Scalia: I wouldn't see anything terribly wrong about the BLM people say okay, he wants to play hardball, he wants to play by the book, we'll play by the book. What would be wrong with--
Laurence H. Tribe: They didn't--
Antonin Scalia: --See, I wouldn't feel bad about that if they said--
Laurence H. Tribe: --I wouldn't either.
Antonin Scalia: --by God, every time his cows trespass, we're going to get him. Every time his hunting expeditions go on public land, we're going to get him. That would seem reasonable to me. So it really is crucial to my view of the case that the government was not seeking a new exchange, it was seeking--
Laurence H. Tribe: That's right.
Antonin Scalia: --for him to cough up--
Laurence H. Tribe: To cough up that easement. And in fact when he said, he offered to negotiate, and the immediate response from Mr. Vessels, who is since diseased, was, the United States does not negotiate. That wasn't just kind of starting of a bargaining position. They dug in and for a series of years the district court found, fully substantiated on the petition appellate via... appendix to the petition at page 37a, not only playing hardball and being selectively tough on him, but a number of clearly illegal acts, breaking into his lodge. One of them particularly striking to me at joint appendix 49 to 57, inciting a neighbor to ram a truck into the respondent while he was on horseback. Firemen--
Stephen G. Breyer: Who would have thought... wait. When you say that, I mean, there's a lot of these acts, it seems, they are plainly illegal.
Laurence H. Tribe: --Sure.
Stephen G. Breyer: Well, if they are plainly illegal, then there are remedies in the courts.
Laurence H. Tribe: There are remedies one by one for each of these acts.
Stephen G. Breyer: All right. But what is actually worrying you, which probably you can address at some point, is this: There are remedies one by one. That's true. And each has one. And maybe you can even get injunctions against harassing.
Laurence H. Tribe: Well, the remedies were acquittal. He was acquitted, for example.
Stephen G. Breyer: Well, maybe he didn't do it.
Laurence H. Tribe: He spent hundreds of thousands of dollars.
Stephen G. Breyer: And so it may be, they thought he did do it and--
Laurence H. Tribe: No, no. They didn't think he did do it.
Stephen G. Breyer: --All right.
Laurence H. Tribe: He alleged--
Stephen G. Breyer: Did you bring a suit for malicious prosecution?
Laurence H. Tribe: --That's part of... this is a suite like Hartman v. Moore. One of the acts that is clearly actionable under Bivens, if one has to dissect the various predicate acts, is the fact that without probable cause, at page 71 of the joint appendix, they deliberately fabricated a felony charge.
Stephen G. Breyer: All right. Now--
Laurence H. Tribe: And when he was acquitted of that by a jury that took 20 minutes, and said that they were outraged by the BLM, they found other things to do. They found other things--
Ruth Bader Ginsburg: But he also lost the malicious prosecution suit, didn't he? Didn't he bring a malicious prosecution suit?
Laurence H. Tribe: --He tried to do that.
Ruth Bader Ginsburg: And he lost.
Laurence H. Tribe: He won some, he lost some, but the--
Stephen G. Breyer: --Maybe he should have won. What's worrying me throughout, if you want to know--
Laurence H. Tribe: --I sure do.
Stephen G. Breyer: --All right. [Laughter] What is worrying me throughout is, put this case to the side. If the Court recognizes what I take it has not happened in the past, that there is an action for private people to bring against the government, Bivens, under the Fifth Amendment, all of a sudden vast numbers of regulations, the coal pillars in Holmes case, everything south of that will be suddenly in Federal court as people claim that what's going on with this regulation is there are individuals in the government who have gone too far, and they are just trying to get my property and the use of it, without paying a fair price. Now by the way, sometimes people in government do go too far, so many of those claims might have some justification. But suddenly I see the possibility of this kind of action becoming a major roadblock, an obstacle sometimes used unjustifiably, and not necessarily, not necessary, this kind of thing, to impose a roadblock to totally legitimate government regulatory action.
Laurence H. Tribe: Justice Breyer, that... that floodgates concern was addressed by this Court not long enough in Hartman v. Moore when the remedy in that case for a prosecution that was brought to retaliate against someone for the exercise of her First Amendment right was a Bivens action against the postal inspectors who made this all up. Now the Court there addressed the possibility that this would unleash a flood of lawsuits, and it said that over the past quarter century, there had been only 12 Bivens or 1983 actions against this kind of retaliation. I suppose that is because not that many postal inspectors or BLM guys think they can get away with deliberately retaliating against people for exercising their rights.
Stephen G. Breyer: You see, part of what's worrying me is that once you get into the Fifth Amendment, which is... prevents the government from taking property for a public use without just compensation, the possibility of the legal imagination becomes endless. Because every time a person walks across the doorstep, every time a person wants to install a pipe in the basement, read the meter... I mean, I can see possibilities of actions of this kind arising, and particularly when the government wants to buy it and is pointing out all the reasons why it should be sold. Is there a threat lurking in that conversation? You see what I'm worried about here, which wasn't present in the other case?
Laurence H. Tribe: I see, but it was present in Davis, Davis v. Passman, to which Justice Kennedy referred, already recognized a Bivens action for violating something even more capacious, due process, equal protection. When this Court said in Village of Willowbrook against Oleck that there is a cause of action even for the naked assertion that you're treating me differently, did that open huge floodgates? Have we been flooded? It seems to me that the Court has developed its own filters against the floodgate of retaliation claims. It's been--
Anthony M. Kennedy: I'm not sure, Professor Tribe, that the cases you cite at page 22, 23 of your brief really support your position. The question is whether there should be a freestanding cause of action for damages.
Laurence H. Tribe: --That's correct.
Anthony M. Kennedy: And in the brief you say that the government says that this is limited First Amendment, and then you say, "These remarkable claims are unsurprisingly false. " I thought that was a rather severe charge against the government, that it's misrepresenting its cases.
Laurence H. Tribe: Uh-huh.
Anthony M. Kennedy: Then in page 22 and 23, you go ahead and you talk about Wisconsin versus Yoder, Lefkowitz versus Turley, Bordenkircher, which I think was vindictive prosecution or adding on charges. All of those are in the... every one of these cases are in the context of a criminal proceeding. Griffin, a murder case. It's just alleging a constitutional--
Laurence H. Tribe: But many of them are not, Justice Kennedy.
Anthony M. Kennedy: --alleging a constitutional claim. Well, which one?
Laurence H. Tribe: Well, for example, Shapiro v. Thompson. The Court has said that the right to travel cannot be penalized. The broad point that--
Anthony M. Kennedy: Well, no. That was, there was an existing case or controversy there. That wasn't a freestanding cause of action. None of these cases are freestanding. Davis versus Passman, different.
Laurence H. Tribe: --And Hartman v. Moore, different. What we were answering there was not the point about a freestanding cause of action.
Anthony M. Kennedy: Well, it seems to me that those cases do not support your position, and I don't think it's correct to say that this is unsurprising, that the government makes a false representation about cases.
Laurence H. Tribe: Well, Justice Kennedy, that was a response to their claim, that only with respect to the Fifth Amendment is there a right. This was not the Bivens question. Only with respect to the Fifth... First Amendment is there a right not to be retaliated against for the exercise of your rights.
Anthony M. Kennedy: I think it was in the context of a freestanding right, but let's leave that aside.
Laurence H. Tribe: We can look at it.
Anthony M. Kennedy: That's right. It does seem to me that you are asking us to extend Bivens, this is an extension. Would you accept that?
Laurence H. Tribe: In the sense that there has never been a case just like it under Hope v. Pelzer, there doesn't have to have been one like it. But we do think that there is a compelling case, because there's no other way to enforce the just compensation right against a group of government agents who are determined to pile punishment upon punishment until someone caves in.
John G. Roberts, Jr.: Well, you say... you call it punishment, but in fact the government's position on each of these particulars has generally been vindicated. When your client has appealed, they've upheld the trespass citations. When you've sued for malicious prosecution, the suit's been rejected. Which of the government actions do you not have an existing remedy for, apart from the Racketeer and Corrupt... RICO Act or the, this new Bivens claim?
Laurence H. Tribe: Mr. Chief Justice, it is the retaliatory pattern that there is no remedy for. When going--
John G. Roberts, Jr.: Can you point to any one governmental action for which you do not have an existing remedy?
Laurence H. Tribe: --Well, the action of falsely prosecuting him in retaliation--
John G. Roberts, Jr.: You have a malicious prosecution claim for that. You brought that, you lost.
Laurence H. Tribe: --No, we did not bring a malicious prosecution claim for that felony charge.
John G. Roberts, Jr.: You could have brought one.
Laurence H. Tribe: It would have been against Federal officials and that would have been then transformed unless we brought it under Bivens, which is what we are trying to do, transformed into an action against the United States by the Westfall Act. That is all of these attempts--
Antonin Scalia: --And then if you would have succeeded, you would have been compensated.
Laurence H. Tribe: --For that one event from the United States, but the BLM agents would not have been deterred. In any event, Carlson v. Green--
David H. Souter: No, but the theory of the Tort Claims Act is that if the government is paying out of the treasury, it's going to see to it that its employees don't continue to commit the tort. So I don't think... I don't think you can make the argument that it would have had no effect on the improper behavior.
Laurence H. Tribe: --I think the most important point that I'm trying to make, Justice Souter and Mr. Chief Justice, that when someone says, I do not want to give you my property, you have to take it from me and give me just compensation, the position of the Government here is that there is no constitutional limit on the kind of retaliation they can engage in.
John G. Roberts, Jr.: Well, if the position of the Government were more fairly represented they would say, we don't want everyone to be able to claim that everything we're doing under color of law is retaliation, because then we'll hear that against IRS agents, we'll hear it against OSHA agents. So long as you... and their position is you have a remedy for everything you're complaining about, and you invoked some of them and you lost, you didn't invoke others and so you didn't prevail. But don't create a whole new remedy just because you're dissatisfied with having to pursue each one individually.
Laurence H. Tribe: Well, Bivens as a constitutional tort is not a new remedy. The question really is whether there is any conceivable basis when they trash his lodge, when they do all of the other things, for treating this differently from another kind of constitutional violation. I mean, they argue that it's very important, even though we could have lots of people bringing unjustified suits, to have a Bivens remedy for retaliation against free speech. The reason that they give is that free speech is easily chilled. But with property rights the Just Compensation Clause is kind of its own antifreeze.
Stephen G. Breyer: No. The reason would be probably that the, if you can make a comparison. The number of Government actions that affect criminal charges and so forth are tiny compared to the number of governmental actions that affect people's property. Virtually, I mean the number of Government actions affecting how people use their property, it's the whole series of law books. It fills the room. And suddenly to open up a new remedy in that kind of thing is what's frightening me, which is what I said already. So you don't have to answer.
Laurence H. Tribe: But Justice Breyer, the Court has established in the area of retaliation against people for the exercise of their rights, Title VII rights in Burlington, First Amendment rights--
Stephen G. Breyer: Retaliation, what is retaliation? Isn't retaliation statutory?
Anthony M. Kennedy: It's statutory.
Laurence H. Tribe: --Hartman is not statutory. Some of the... Hartman is the First Amendment, and it's the Bivens case. The point I was trying to make about that is that the Court has a body of law trying to filter out through requiring proof of causation, requiring proof of substantial injury, filter out these trivial cases where someone is simply making a nuisance.
Samuel A. Alito, Jr.: Mr. Tribe, could I ask a question about the RICO claims?
Laurence H. Tribe: Certainly.
Samuel A. Alito, Jr.: Until I read this case, I had never come across the concept that a Government employee can be guilty of extortion by demanding money for the Government and your brief didn't cite very much authority for this anywhere in the history of extortion.
Laurence H. Tribe: In the common law history, Justice Alito, we cited two cases from New York, the Whaley case in 1827 and Willett in 1915. And it was that body of New York law from which the Hobbs Act largely drew. Those were cases in which the courts said that the fact that the government agent is extorting property for his own employer the government doesn't make any difference; it is still extortion.
Samuel A. Alito, Jr.: That's not a lot of, that's not a lot of authority, considering the long history of extortion, just two old New York cases.
Laurence H. Tribe: There are plenty of cases, Justice Alito, that involve extortion for one's employer where the employer might be a union or a corporation or a charitable body. But it's true the Hobbs Act has not been applied, in my research anyway I have not seen it applied, to this kind of extortion. But the language clearly covers it and the language of RICO clearly covers it.
Samuel A. Alito, Jr.: Suppose you have a librarian in a courthouse and the librarian is charging lawyers 25 cents a page for photocopies, but there's some library rule that says the fee is supposed to be 10 cents a page. Now is that, is that a RICO?
Laurence H. Tribe: If the librarian thinks that, the legislature is not giving us enough money, so I'm going to deliberately use my authority to get an extra five cents from everybody, I suppose if you could prove willfulness, which is an important element of Hobbs, and if there were several librarians and there was a pattern and you could establish the other prerequisites of RICO, it could be a RICO violation.
Stephen G. Breyer: Well, the two cases you cite, the first one is the person who was charged with extortion is a judge--
Laurence H. Tribe: That's right.
Stephen G. Breyer: --And he was extorted on the ground that he told the plaintiff to pay the defendant, so the money wasn't given to the government. So I don't see that that's a difference. And then the second case--
Laurence H. Tribe: The second case--
Stephen G. Breyer: --it may have been, but you say "See Also", which is a sign to me there's something wrong with that case. [Laughter]
Laurence H. Tribe: --I don't, I don't think there is, Justice Breyer, and it's very short.
Stephen G. Breyer: I'm surprised that you didn't put it first if there wasn't. Page 49.
Laurence H. Tribe: Well, Willett versus Devoy, it involved a clerk demanding more money than the law allowed, and the court said: "No distinction is made on the ground that the official keeps the fee or turns it over to the government. " "Such a judge-made restriction on the general statute requiring that the money be kept by the individual might itself bring about uncertainty, confuse and possibly great injustice. "
Stephen G. Breyer: Why did you say "See Also"?
Laurence H. Tribe: I don't remember.
John G. Roberts, Jr.: You say this clearly establishes. Are the BLM folks supposed to have known about Willett versus Devoy?
Laurence H. Tribe: No.
John G. Roberts, Jr.: --as clearly establishing their liability for what you call extortion? I'm sure what they would call trying to save the taxpayers money and getting the type of reciprocal agreement with this landowner that they have got with thousands of others.
Laurence H. Tribe: Well, Mr. Chief Justice, first of all, when you keep calling it a reciprocal agreement it does trouble me. They weren't giving him anything for this easement which they had already extracted from his predecessor.
John G. Roberts, Jr.: You agree if the case were otherwise... and I gather we have a factual dispute on that... that it would have been all right? I mean, if he didn't have this other easement already, but they were trying to negotiate it, that this type of playing hardball, I guess is one way to put it, would be all right?
Laurence H. Tribe: It makes all the difference in the world. They were trying to get the easement for nothing. I mean, it's very much--
John G. Roberts, Jr.: Well, that's what I'm trying to get, to see if you agree with that. In other words, everything about this case would otherwise be, I'm sure not breaking the laws, but otherwise it would be all right if they were trying to get a reciprocal easement?
Laurence H. Tribe: --Well, most of what they did would not have been an okay method of getting a reciprocal easement, anyway. But the attempt to get it would be fine. It's not that they are not entitled to a reciprocal easement. That might have been a problem under Nollan and Dolan to figure out whether there was enough connection, but I think there would have been enough. The problem was that they were using the right-of-way, which was long gone, as an excuse to get an invaluable piece of property that they had no right to get. They were then trying to... they were basically saying, and they made it explicit, give us this easement for nothing or we'll bury you.
Antonin Scalia: Mr. Tribe, I'll tell what you troubles me about this case. There are overzealous government agents. There always have been and I am sure that, assuming all of the misbehavior described here is correct, I'm sure it is not the first time this has happened. Government agents sometimes get overzealous. But why should there be this extraordinary remedy when the overzealousness happens to be attached to a desire to get a piece of land, whereas if they had just picked on this guy because they didn't like the way he combed his hair or for any other reason and had done the same things you wouldn't have your Bivens action, right?
Laurence H. Tribe: Nor would Nollan have come out the same way if they weren't trying to get an easement in return for something which wasn't... which you called extortion.
Antonin Scalia: No, no. If they were trying to get some other property for it or, or, or money for it, it didn't turn--
Laurence H. Tribe: I guess the straightforward answer that I would give to your question I think is that the Constitution does guarantee that the Government cannot take your property for public use without just compensation.
Antonin Scalia: --The whole spectrum of possible Government misbehavior, selective enforcement, the whole spectrum, the only, the only times we're going to allow a cause of action under Bivens or under, under not 1983... yes... the only times we're going to do that is when there is a demand for property?
Laurence H. Tribe: You've certainly done it with respect to the Eighth Amendment. You've done it with respect to speech. You've done it with respect to--
Anthony M. Kennedy: But Professor Tribe, all these cases are cases in which there is... Nollan, you have a cause of action to challenge the permit and this is just a, this is just a constitutional defense. That's different from a freestanding cause of action. And I share Justice Scalia's concern. It seems to me in thinking about this case there is... there could be something very wrong here, going after a person because of what he's done. Suppose the Government wants somebody to be a witness in a trial and he won't do it, and they go around hurting his business, they go around invading his property and so forth. That to me is outrageous and you might have an argument that there should be a Bivens cause of action for that. And Justice Scalia's question... I had the same question... is why do we think it to the property? The essence here, the essence of what's going on, is that they're being vindictive against this person. Now again, the cases you're citing, include Hartman, which is a free speech case which is different, really don't support you. I think this is an extension of Bivens.
Laurence H. Tribe: --Justice Kennedy, if it's an extension, it's I think implicit in Bivens' logic. Bivens deals with the cases--
Anthony M. Kennedy: Fair enough, but it's an extension of Bivens.
Laurence H. Tribe: --The Fifth Amendment is different from the First, but is it different in a relevant way? The Just Compensation Clause does give the government an incentive, if they can avoid having to use eminent domain and tax the public, gives them an incentive to try to squeeze property out of somebody. If it has any incentive effect, it's one that points to the need for a Bivens remedy. Why is a Bivens remedy--
John G. Roberts, Jr.: But are they disabled from negotiating? If they go up to somebody and say, you know, we'd really like a right-of-way because we have some interest in lands that we need to maintain on the other side, and the person says, no and, you know, get off my property, do they have to shrug their shoulders and say all right? Or can they say, well, you know, we're neighbors, we have a lot of interests in common and we should work together? Is that all of a sudden extortion?
Laurence H. Tribe: --No, Mr. Chief Justice. Working together is what this guy tried to do at the beginning. He said, I'm happy to negotiate.
John G. Roberts, Jr.: So how many trespass--
Laurence H. Tribe: They said: We don't negotiate.
John G. Roberts, Jr.: --citations for his cattle does it take before it's all of a sudden extortion?
Laurence H. Tribe: The record in the case shows that on those very instances where he was cited with trespass others who were doing the identical thing were not. And the IBLA has said--
John G. Roberts, Jr.: And he challenged the citations and they were rejected.
Laurence H. Tribe: --The IBLA rejected them because it said it has no jurisdiction. This was at... in its decision at 170 IBLA in 2006. No jurisdiction to consider whether the motive was retaliatory, whether it was unconstitutional, whether it was part of a pattern. And this Court has said that one can't use the APA in that way either. Nor could an injunction be used to get a pattern like this because of Rule 65D and International Longshoremen, try to frame an injunction saying: Don't keep trashing this guy and ruining his business and harassing and surveilling his guests and whatever else you can come up with in order to squeeze his property out of him. No other remedy will work.
David H. Souter: So are you saying that there was therefore no way short of Bivens even to challenge or even to vindicate his claim of selective prosecution.
Laurence H. Tribe: He could have taken that one item and under a decision like Hartman vindicated it. But as is clear from the way he tried to challenge these individual things and then concluded, as we explained in our brief, that it was taking years and costing hundreds of thousands of dollars more than was involved in each individual one, that was hopeless.
David H. Souter: I appreciate that, but I thought you made the further claim... maybe I misunderstood it... that if he had gone from the administrative tribunal, or attempted to, to get into the district court, he could not have gotten into district court under the act.
Laurence H. Tribe: Well, he wouldn't have had... because he would have had no record. That is, the review under the APA by the district court would have been based on the evidentiary record he made. And the IBLA specifically ruled that it would not entertain evidence about the reasons that the BLM officials had for going after him. There would be no evidence to support his claim.
David H. Souter: Could he have gone into the district court and said, I tried to make a record but they wouldn't let me; let me make a record now? Could he have done that?
Laurence H. Tribe: I believe the district court's jurisdiction in reviewing a final agency action is limited to the agency record.
Stephen G. Breyer: No, no. You can go to an agency and say, agency I want to do such and such, dah dah dah, here are my reasons. Agency says no. I want review.
Laurence H. Tribe: So a challenge to the IBLA's assertion--
Stephen G. Breyer: I don't know. You might have written to the Secretary of the Interior: Secretary, I want to you do such and such, please. No. Okay, review.
Laurence H. Tribe: --Well, he did write to the Secretary of the Interior.
Stephen G. Breyer: And what happened?
Laurence H. Tribe: He was not given an answer. So what can one say? The district court decided... lest you assume that because he wasn't given an answer he doesn't have a case, the district court said, as hard as it is to prove these things, he has substantial evidence that they were picking on him solely to get the property, not because they didn't like him, not for some other reason; they were trying to get property for which they were unwilling to pay. It's doubtful that they could have taken it by eminent domain because the laws limiting the ability of the BLM require proving necessity and there is nothing in the record suggesting that they needed this easement. There is plenty in the record suggesting that he couldn't access his own property as long as the roadway wasn't maintained in a passable condition, and one of the ways they retaliated against him was to refuse to maintain the roadway. The record is also clear that his business suffered greatly. So that if the result is that someone who is trying to insist that if you want my property, you have to take it by eminent domain and give me just compensation, can't get help in those other ways, this is crucial. What would have happened in Kaiser Aetna, if when the Government said we think we have an easement to the Laguna pond, instead of going to court, which they did and they lost, if they had said well we are going to ram our motor boats or invite people to ram their motor boats into your sailboat? We are going to ruin your business in the Kuapa pond until you give the public an easement. Only a Bivens cause of action which the Court has recognized in other areas, in other constitutional claims... due process, free speech, Eighth Amendment... only a Bivens cause of action is directly responsive to that.
John G. Roberts, Jr.: No. A, an action against the Government for ramming your sailboat is directly responsive to that. You get... you get full recovery.
Laurence H. Tribe: The Westfall Act makes an exception when you are making a constitutional claim. That is, in 1988 when the Court passed the Westfall Act, there were two exceptions 2679B(2)(a) and (b) were constitutional claims and statutory claims.
John G. Roberts, Jr.: You don't need the Constitution to the sue the Government for ramming your sailboat. Basic state tort law.
Laurence H. Tribe: Mr. Chief Justice--
John G. Roberts, Jr.: You can answer. (A little laughter. )--
Laurence H. Tribe: --It seems to me that state tort law does not get at the harm that he has suffered. It gets at each individual piece. But the main harm he suffered is that they are circumventing the Just Compensation Clause as the one way that the Fifth Amendment was designed to permit the Government to get property for public use. Thank you.
John G. Roberts, Jr.: --Thank you, Counsel.
Laurence H. Tribe: Thank you, Mr. Chief Justice.
John G. Roberts, Jr.: Mr. Garre, you have-- four minutes remaining. REBUTTAL ARGUMENT OF GREGORY C. GARRE,-- FOR PETITIONERS--
Gregory G. Garre: Thank you, Mr. Chief Justice. First I want to clarify, the question of the-- assignment. And our position, it's always been our position that a new right-of-way had to be issued after the property was sold. And I'll point the Court to JA 84, which is where the BLM officials made clear at the outset that an assignment was required. Point the Court to JA 100 which is the right-of-way--
Antonin Scalia: They might have been lying-- about that--
Gregory G. Garre: --Well--
Antonin Scalia: --just as they lied about-- a lot of other stuff, according to--
Gregory G. Garre: --Pointing to JA 100 which is the right-of-way, which says that in accordance with Federal regulations, and I point the Court to 43 CFR 2803, which discusses assignments and makes clear that assignments have to be approved.
Ruth Bader Ginsburg: I thought there was something about Nelson having assigned his, the right-of-way that he had to the Government.
Gregory G. Garre: Justice Ginsburg, assignments have to be approved by the BLM. That's--
Ruth Bader Ginsburg: Yes. But it wasn't that it was a new assignment; it was the former owner assigned it and the BLA... BLM approved.
Gregory G. Garre: --It was never approved. And that's clear, there was never any valid assignment. That's why the reciprocal arrangement had to be negotiated anew and again, I point to 43--
John G. Roberts, Jr.: --Well, then why did you revoke it later, if it wasn't valid?
Gregory G. Garre: --It... it was revoked as part of the decision not to assign it. And that's clear from the decision canceling the right-of-way. There was no assignment that could be approved, and rents had not been paid on it. So it was combined with the assignment.
Antonin Scalia: --Why wouldn't there be an assignment? Why, why would the prior owner have any... any interest in not assigning it?
Gregory G. Garre: In order for the right-of-way, because these are rights-of-way to public lands. They have to approved by new... once new property owners seek to assert them. And again the--
Ruth Bader Ginsburg: The prior owner did assign it. The stopper was the BLM.
Gregory G. Garre: --But, but again it's clear... and it was not approved, and one of the reasons it wasn't approved was because rents weren't paid and he wasn't agreeing by the terms and conditions of the regulations which are part of the right-of-way. And that's at JA-- 100. The next point I wanted to make, Justice Kennedy, is we agreed this would be a dramatic new extension of Bivens, and we agree with Justice Breyer, the problems or types of litigations that this new constitutional tort would create are really just... the... capable of the imagination.
Anthony M. Kennedy: Davis versus Passman is a different context. But in theory is it consistent with what the Respondent asks?
Gregory G. Garre: No, it's not. Because the Respondent here has more statutory and administrative remedies available to him than the plaintiff in Passman did, including claims under the Federal Tort Claims Act for trespasses, for any of the other alleged wrongs that you've heard about here today. These were... these were wrongs that were addressed by the IBLA and the APA.
John G. Roberts, Jr.: But their argument is broader. It says you can't look at each little piece. You've got to look at the overall structure, and overall they are doing it to extort a property right they don't want to pay for, and they are not doing... other people's cattle cross over and they don't prosecute them. Now, let's assume that's correct on the facts. Are you saying that they have no remedy for that type of extortionate activity?
Gregory G. Garre: They don't have a Bivens remedy and they don't have a RICO remedy. I'd point the Court to Lujan versus National Wildlife Federation, where the Court said that in that situation what a plaintiff must do is challenge each administrative action individually, and the types of programmatic pattern challenges are for Congress, they're for executive branches; they are for inspector generals.
David H. Souter: But what do you... what do you say to the argument that... that you simply cannot follow that logic ultimately, because when you get to the point of the sort of the, you know, the death by a thousand cuts, which is what they are claiming here, you can stitch up every cut, but by the time you get to a thousand, you're dead. I mean, they're making an argument that this is quantitatively so different that it is qualitatively different.
Gregory G. Garre: I think the law and this Court reasonably assumes that where individuals have remedies available to them through challenging individual--
David H. Souter: Why is that a reasonable assumption in response to their argument?
Gregory G. Garre: --It's reasonable to assume that if there are actions against United States under the Federal Tort Claims Act, or actions finding Government conduct unauthorized under the APA, that the Government will take action to prevent that. Here every action that was challenged was found to be appropriate and lawful under the existing regime. We would urge the Court to reverse.
John G. Roberts, Jr.: Thank you, Counsel. The case is submitted.