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Barring Bivens Actions for Property Owners:

What makes Wilkie v. Robbins a difficult case is that Robbins is seeking the extension of a judicially created cause of action to cover his circumstances, when a legislatively authorized remedy would be preferable. As the majority framed the central issue:

The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government's employees.
For those who view Bivens and its progeny as Warren Court judicial activism, this is a tough pill to swallow. However much they may wish to protect private property owners from federal bureaucrats, they have no interest in broadening the range of Bivens actions available in federal court. This is the explicit basis for Justice Thomas' dissent. Joined by Justice Scalia, Thomas denigrated Bivens as "a relic of the heady days in which this Court assumed common-law powers to create causes of action," and argued that Bivens and its progeny should be limited 'to the precise circumstances that they involved.'"

If one accepts Justice Thomas' premise that Bivens was wrong and should be limited, then it is obvious that Robbins' claim should fail. Yet Justice Souter's majority opinion is not willing to go this far. Instead, it seeks to maintain the more difficult position that Bivens actions are fully legitimate, but that the Robbins' specific claims are not the sort for which a Bivens-like action should be available. Bivens actions are disfavored, Justice Souter suggests, and there are many reasons, such as the potential availability of other avenues of relief, that can counsel against allowing such actions to proceed.

The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.
Set alongside Justice Ginsburg's dissent, I do not find Justice Souter's arguments all that convincing. The claim that a deliberate campaign of harassment intended to extort a constitutionally protected property interest is not distinguishable from a government official's "legitimate zeal on the public's behalf in situations where hard bargaining is to be expected" rings hollow. Under what circumstances would legitimate "hard bargaining" by a federal employee include the repeated commission of illegal and tortuous acts, and harassment that extended to efforts to videotape a landowner's guests "even while the guests sought privacy to relieve themselves." I am very sympathetic to the need for line-drawing, lest the approval of a Bivens action produce a rash of meddlesome litigation, but the facts alleged in this case are far from any reasonable line demarcating what actions should be redressable.

Justice Souter's majority opinion eases the way to this result with a muted account of the facts that led to Robbins' suit. In an early footnote Souter says the Court details the facts "in the light most favorable to Robbins" because the case arose on an interlocutory appeal from the denial of the federal employees' motion for summary judgment. Yet as the recitation of the facts in Justice Ginsburg's dissent makes clear, the Souter majority soft-pedals key aspects of the BLM officials' conduct, and ignores others. This serves the rhetorical purpose of downplaying the injustice suffered by Robbins, easing the way for the Court's denial of an avenue for relief, but it also misrepresents the facts for purposes of the appeal.

If an individual should be able to seek money damages against government officials that violate his Fourth Amendment rights, it seems hard to maintain that there is no cause of action for the extended, deliberate campaign of intimidation and harassment of a property owner who has done nothing more than assert his constitutionally protected property rights. Robbins had remedies for some of the actions taken by the BLM, but not all. Moreover, many of the actions, by themselves, would not be worth the cost to challenge. It is only when the BLM officials' actions are taken together that they become something worth fighting over. But under Wilkie, that is precisely what landowners in Robbins' position cannot do.

ATRGeek:
I agree, so the bottomline is that Thomas and Scalia got their way (ie, Bivens was strictly limited to its facts).

And although I know Souter wrote the opinion, I see the influence of Roberts and Alito in all this (the idea being that they prefer to hollow out a doctrine before blowing it up--Thomas and Scalia are a bit more impatient).
6.27.2007 1:40pm
Dilan Esper (mail) (www):
It's silly to "limit Bivens to its facts". Bivens held that where a federal employee violates a person's constitutional rights, an action for damages lies. It created an analogue to Section 1983 liability for federal officials.

Given that, it makes no sense to say that with respect to Bivens claims that the Supreme Court has already approved, plaintiffs should win, but with respect to other Bivens claims, plaintiffs should lose. That creates a completely random, scattershot enforcement of the Constitution.

If Scalia and Thomas really hate Bivens, they should push for it to be overturned. But there's no basis for using a random and arbitrary standard to say that violations of the search and seizure clause of the Constitution are actionable but violations of the free speech clause, for instance, are not.

I should add that Scalia and Thomas are wrong. The fact is, for large swaths of the Constitution, unless there is some sort of judicially created remedy, the provisions are basically unenforceable. And the great thing about damages is that innocent people can get them (and guilty people generally can't, see Heck v. Humprhey). In contrast, the other major remedy is suppression of evidence and reversal of convictions. They can't prefer that one.
6.27.2007 8:04pm