Wilkie v. Robbins

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WILKIE ET AL. v. ROBBINS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

No. 06–219. Argued March 19, 2007—Decided June 25, 2007
Plaintiff-respondent Robbins’s Wyoming guest ranch is a patchwork of
land parcels intermingled with tracts belonging to other private own
ers, the State of Wyoming, and the National Government. The previ
ous owner granted the United States an easement to use and main
tain a road running through the ranch to federal land in return for a
right-of-way to maintain a section of road running across federal land
to otherwise isolated parts of the ranch. When Robbins bought the
ranch, he took title free of the easement, which the Bureau had not
recorded. Robbins continued to graze cattle and run guest cattle
drives under grazing permits and a Special Recreation Use Permit
(SRUP) issued by the Bureau of Land Management. Upon learning
that the easement was never recorded, a Bureau official demanded
that Robbins regrant it, but Robbins declined. Robbins claims that
after negotiations broke down, defendant-petitioners (defendants) be
gan a campaign of harassment and intimidation to force him to re
grant the lost easement.
Robbins’s suit for damages and declaratory and injunctive relief
now includes a Racketeer Influenced and Corrupt Organizations Act
(RICO) claim that defendants repeatedly tried to extort an easement
from him and a similarly grounded Bivens v. Six Unknown Fed. Nar
cotics Agents, 403 U. S. 388, claim that defendants violated his
Fourth and Fifth Amendment rights. Ultimately, the District Court
denied defendants’ motion to dismiss the RICO claim based on quali
fied immunity. As to the Bivens claims, it dismissed what Robbins
called his Fourth Amendment malicious prosecution claim and his
Fifth Amendment due process claims, but declined to dismiss a Fifth
Amendment claim of retaliation for the exercise of Robbins’s rights to
exclude the Government from his property and to refuse to grant a
2 WILKIE v. ROBBINS

Syllabus

property interest without compensation. It adhered to this denial on
summary judgment. The Tenth Circuit affirmed.
Held:
1. Robbins does not have a private action for damages of the sort
recognized in Bivens. Pp. 9–23.
(a) In deciding whether to devise a Bivens remedy for retaliation
against the exercise of ownership rights, the Court’s first step is to
ask whether any alternative, existing process for protecting the in
terest amounts to a convincing reason for the Judicial Branch to re
frain from providing a new and freestanding damages remedy. Bush
v. Lucas, 462 U. S. 367, 378. But even absent an alternative, a
Bivens remedy is a subject of judgment: “the federal courts must
make the kind of remedial determination that is appropriate for a
common-law tribunal, paying particular heed . . . to any special fac
tors counselling hesitation before authorizing a new kind of federal
litigation.” Ibid. Pp. 9–11.
(b) For purposes of step one, Robbins’s difficulties with the Bu
reau can be divided into four categories. The first, torts or tort-like
injuries, includes an unauthorized survey of the desired easement’s
terrain and an illegal entry into Robbins’s lodge. In each instance, he
had a civil damages remedy for trespass, which he did not pursue.
The second category, charges brought against Robbins, includes ad
ministrative claims for trespass and other land-use violations, a fine
for an unauthorized road repair, and two criminal charges. Robbins
had the opportunity to contest all of the administrative charges; he
fought some of the land-use and trespass citations, and challenged
the road repair fine as far as the Interior Board of Land Appeals
(IBLA), but did not seek judicial review after losing there. He exer
cised his right to jury trial on the criminal complaints. The fact that
the jury took 30 minutes to acquit him tends to support his baseless-
prosecution charge; but the federal trial judge did not find the Gov
ernment’s case thin enough to justify attorney’s fees, and Robbins
appealed that ruling late. The third category, unfavorable agency ac
tions, involved a 1995 cancellation of the right-of-way given to Rob
bins’s predecessor in return for the Government’s unrecorded ease
ment, a 1995 decision to reduce the SRUP from five years to one, and
in 1999, the SRUP’s termination and a grazing permit’s revocation.
Administrative review was available for each claim, subject to ulti
mate judicial review under the Administrative Procedure Act. Rob
bins did not appeal the 1995 decisions, stopped after an IBLA appeal
of the SRUP denial, and obtained an IBLA stay of the grazing permit
revocation. The fourth category includes three events that elude
classification. An altercation between Robbins and his neighbor did
not implicate the Bureau, and no criminal charges were filed. Bu
 Cite as: 551 U. S. ____ (2007) 3

Syllabus

reau employees’ videotaping of ranch guests during a cattle drive,
though annoying and possibly bad for business, may not have been
unlawful, depending, e.g., on whether the guests were on public or
private land. Also, the guests might be the proper plaintiffs in any
tort action, and any tort might be chargeable against the Govern
ment, not its employees. Likewise up in the air is the significance of
an attempt to pressure a Bureau of Indian Affairs employee to im
pound Robbins’s cattle. An impoundment’s legitimacy would have
depended on whether the cattle were on private or public land, and
no impoundment actually occurred. Thus, Robbins has an adminis
trative, and ultimately a judicial, process for vindicating virtually all
of his complaints. This state of law gives him no intuitively meritori
ous case for a new constitutional cause of action, but neither does it
plainly answer no to the question whether he should have it. Pp. 11–
14.
(c) This, then, is a case for Bivens step two, for weighing reasons
for and against creating a new cause of action, as common law judges
have always done. Robbins concedes that any single action might
have been brushed aside as a small imposition, but says that in the
aggregate the campaign against him amounted to coercion to extract
the easement and should be redressed collectively. On the other side
of the ledger is the difficulty in defining a workable cause of action.
Robbins’s claim of retaliation for exercising his property right to ex
clude the Government does not fit this Court’s retaliation cases,
which involve an allegation of impermissible purpose and motiva
tion—e.g., an employee is fired after speaking out on matters of pub
lic concern, Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S.
668, 675—and whose outcome turns on “what for” questions—what
was the Government’s purpose in firing the employee and would he
have been fired anyway. Such questions have definite answers, and
this Court has established methods to identify the presence of an il
licit reason. Robbins alleges not that the Government’s means were
illegitimate but that the defendants simply demanded too much and
went too far. However, a “too much” kind of liability standard can
never be as reliable as a “what for” one. Most of the offending actions
are legitimate tactics designed to improve the Government’s negotiat
ing position. Although the Government is no ordinary landowner, in
many ways it deals with its neighbors as one owner among the rest.
So long as defendants had authority to withhold or withdraw Rob
bins’s permission to use Government land and to enforce the trespass
and land-use rules, they were within their rights to make it plain
that Robbins’s willingness to give an easement would determine how
complaisant they would be about his trespasses on public land. As
for Robbins’s more abstract claim, recognizing a Bivens action for re
4 WILKIE v. ROBBINS

Syllabus

taliation against those who resist Government impositions on their
property rights would invite claims in every sphere of legitimate gov
ernmental action affecting property interests, from negotiating tax
claim settlements to enforcing Occupational Safety and Health Ad
ministration regulations. Pp. 14–23.
2. RICO does not give Robbins a claim against defendants in their
individual capacities. Robbins argues that the predicate act for his
RICO claim is a violation of the Hobbs Act, which criminalizes inter
ference with interstate commerce by extortion, along with attempts
or conspiracies, 18 U. S. C. §1951(a), and defines extortion as “the ob
taining of property from another, with his consent . . . under color of
official right,” §1951(b)(2). Robbins’s claim fails because the Hobbs
Act does not apply when the National Government is the intended
beneficiary of allegedly extortionate acts. That Act does not speak
explicitly to efforts to obtain property for the Government rather
than a private party, so the question turns on the common law con
ception of “extortion,” which Congress is presumed to have incorpo
rated into the Act in 1946, see, e.g., Scheidler v. National Organiza
tion for Women, Inc., 537 U. S. 393, 402. At common law, extortion
“by the public official was the rough equivalent of what [is] now de
scribe[d] as ‘taking a bribe.’ ” Evans v. United States, 504 U. S. 255,
260. While public officials were not immune from extortion charges
at common law, that crime focused on the harm of public corruption,
by selling public favors for private gain, not on the harm caused by
overzealous efforts to obtain property on the Government’s behalf.
The importance of the line between public and private beneficiaries is
confirmed by this Court’s case law, which is completely barren of an
example of extortion under color of official right undertaken for the
sole benefit of the Government. More tellingly, Robbins cites no deci
sion by any court, much less this one, in the Hobbs Act’s entire 60
year history finding extortion in Government employees’ efforts to get
property for the Government’s exclusive benefit. United States v.
Green, 350 U. S. 415, 420, which held that “extortion as defined in
the [Hobbs Act] in no way depends upon having a direct benefit con
ferred on the person who obtains the property,” does not support
Robbins’s claim that Congress could not have meant to prohibit ex
tortionate acts in the interest of private entities like unions, but ig
nore them when the intended beneficiary is the Government. With
out some other indication from Congress, it is not reasonable to
assume that the Hobbs Act (let alone RICO) was intended to expose
all federal employees to extortion charges whenever they stretch in
trying to enforce Government property claims. Because defendants’
conduct does not fit the traditional definition of extortion, it also does
not survive as a RICO predicate offense on the theory that it is
 Cite as: 551 U. S. ____ (2007) 5

Syllabus

“chargeable under [Wyoming] law and punishable by imprisonment
for more than one year,” 18 U. S. C. §1961(1)(A). Pp. 23–28.
433 F. 3d 755, reversed and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined,
and in which STEVENS and GINSBURG, JJ., joined as to Part III. THO
MAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINS
BURG, J., filed an opinion concurring in part and dissenting in part, in
which STEVENS, J., joined.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

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 SOUTER delivered the opinion of the Court.
Officials of the Bureau of Land Management stand
accused of harassment and intimidation aimed at extract
ing an easement across private property. The questions
here are whether the landowner has either a private
action for damages of the sort recognized in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), or a
claim against the officials in their individual capacities
under the Racketeer Influenced and Corrupt Organiza
tions Act (RICO), 18 U. S. C. §§1961–1968 (2000 ed. and
Supp. IV). We hold that neither action is available.
I

A

Plaintiff-respondent Frank Robbins owns and operates
the High Island Ranch, a commercial guest resort in Hot
Springs County, Wyoming, stretching across some 40
miles of territory. The ranch is a patchwork of mostly
contiguous land parcels intermingled with tracts belong
ing to other private owners, the State of Wyoming, and the
National Government. Its natural resources include
wildlife and mineral deposits, and its mountainous west
2 WILKIE v. ROBBINS

Opinion of the Court

ern portion, called the upper Rock Creek area, is a place of
great natural beauty. In response to persistent requests
by environmentalists and outdoor enthusiasts, the Bureau
tried to induce the ranch’s previous owner, George Nelson,
to grant an easement for public use over South Fork Owl
Creek Road, which runs through the ranch and serves as a
main route to the upper Rock Creek area. For a while,
Nelson refused from fear that the public would disrupt his
guests’ activities, but shortly after agreeing to sell the
property to Robbins, in March 1994, Nelson signed a
nonexclusive deed of easement giving the United States
the right to use and maintain the road along a stretch of
his property. In return, the Bureau agreed to rent Nelson
a right-of-way to maintain a different section of the road
as it runs across federal property and connects otherwise
isolated parts of Robbins’s holdings.
In May 1994, Nelson conveyed the ranch to Robbins,
who continued to graze cattle and run guest cattle drives
in reliance on grazing permits and a Special Recreation
Use Permit (SRUP) issued by the Bureau. But Robbins
knew nothing about Nelson’s grant of the easement across
South Fork Owl Creek Road, which the Bureau had failed
to record, and upon recording his warranty deed in Hot
Springs County, Robbins took title to the ranch free of the
easement, by operation of Wyoming law. See Wyo. Stat.
Ann. §34–1–120 (2005).
When the Bureau’s employee Joseph Vessels1 discov
ered, in June 1994, that the Bureau’s inaction had cost it
the easement, he telephoned Robbins and demanded an
easement to replace Nelson’s. Robbins refused but indi
cated he would consider granting one in return for some
thing. In a later meeting, Vessels allegedly told Robbins
that “ ‘the Federal Government does not negotiate,’ ” and
——————
1 Vessels was named as a defendant when the complaint was filed,

but he has since died.
 Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

talks broke down. Brief for Respondent 5. Robbins says
that over the next several years the defendant-petitioners
(hereinafter defendants), who are current and former
employees of the Bureau, carried on a campaign of har
assment and intimidation aimed at forcing him to regrant
the lost easement.
B
Robbins concedes that any single one of the offensive
and sometimes illegal actions by the Bureau’s officials
might have been brushed aside as a small imposition, but
says that in the aggregate the campaign against him
amounted to coercion to extract the easement and should
be redressed collectively. The substance of Robbins’s
claim, and the degree to which existing remedies available
to him were adequate, can be understood and assessed
only by getting down to the details, which add up to a long
recitation.2
In the summer of 1994, after the fruitless telephone
conversation in June, Vessels wrote to Robbins for permis
sion to survey his land in the area of the desired ease
ment. Robbins said no, that it would be a waste of time
for the Bureau to do a survey without first reaching
agreement with him. Vessels went ahead with a survey
anyway, trespassed on Robbins’s land, and later boasted
about it to Robbins. Not surprisingly, given the lack of
damage to his property, Robbins did not file a trespass
complaint in response.
Mutual animosity grew, however, and one Bureau em
ployee, Edward Parodi, was told by his superiors to “look
closer” and “investigate harder” for possible trespasses
and other permit violations by Robbins. App. 128–129.
Parodi also heard colleagues make certain disparaging
——————
2 Because this case arises on interlocutory appeal from denial of de

fendants’ motion for summary judgment, we recite the facts in the light
most favorable to Robbins.
4 WILKIE v. ROBBINS

Opinion of the Court

remarks about Robbins, such as referring to him as “the
rich SOB from Alabama [who] got [the Ranch].” Id., at
121. Parodi became convinced that the Bureau had mis
treated Robbins and described its conduct as “the volcanic
point” in his decision to retire. Id., at 133.
Vessels and his supervisor, defendant Charles Wilkie,
continued to demand the easement, under threat to cancel
the reciprocal maintenance right-of-way that Nelson had
negotiated. When Robbins would not budge, the Bureau
canceled the right-of-way, citing Robbins’s refusal to grant
the desired easement and failure even to pay the rental
fee. Robbins did not appeal the cancellation to the Interior
Board of Land Appeals (IBLA) or seek judicial review
under the Administrative Procedure Act (APA), 5 U. S. C.
§702.
In August 1995, Robbins brought his cattle to a water
source on property belonging to his neighbor, LaVonne
Pennoyer. An altercation ensued, and Pennoyer struck
Robbins with her truck while he was riding a horse.
Plaintiff-Appellee’s Supp. App. in No. 04–8016 (CA10), pp.
676–681 (hereinafter CA10 App.); Pl. Exh. 2, Record 164–
166; Pl. Exh. 35a, id., at 102–108. Defendant Gene Leone
fielded a call from Pennoyer regarding the incident, en
couraged her to contact the sheriff, and himself placed
calls to the sheriff suggesting that Robbins be charged
with trespass. After the incident, Parodi claims that
Leone told him: “I think I finally got a way to get [Rob
bins’s] permits and get him out of business.” App. 125,
126.
In October 1995, the Bureau claimed various permit
violations and changed the High Island Ranch’s 5-year
SRUP to a SRUP subject to annual renewal. According to
Robbins, losing the 5-year SRUP disrupted his guest
ranching business, owing to the resulting uncertainty
about permission to conduct cattle drives. Robbins de
clined to seek administrative review, however, in part
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Opinion of the Court

because Bureau officials told him that the process would
be lengthy and that his permit would be suspended until
the IBLA reached a decision.3
Beginning in 1996, defendants brought administrative
charges against Robbins for trespass and other land-use
violations. Robbins claimed some charges were false,
and others unfairly selective enforcement, and he took
all of them to be an effort to retaliate for refusing the
Bureau’s continuing demands for the easement. He con
tested a number of these charges, but not all of them,
administratively.
In the spring of 1997, the South Fork Owl Creek Road,
the only way to reach the portions of the ranch in the Rock
Creek area, became impassable. When the Bureau re
fused to repair the section of road across federal land,
Robbins took matters into his own hands and fixed the
public road himself, even though the Bureau had refused
permission. The Bureau fined Robbins for trespass, but
offered to settle the charge and entertain an application to
renew the old maintenance right-of-way. Instead, Robbins
appealed to the IBLA, which found that Robbins had
admitted the unauthorized repairs when he sent the Bu
reau a bill for reimbursement. The Board upheld the fine,
In re Robbins, 146 I. B. L. A. 213 (1998), and rejected
Robbins’s claim that the Bureau was trying to “ ‘black
mail’ ” him into providing the easement; it said that “[t]he
record effectively shows . . . intransigence was the tactic of
Robbins, not [the] BLM.” Id., at 219. Robbins did not seek
judicial review of the IBLA’s decision.
In July 1997, defendant Teryl Shryack and a colleague
entered Robbins’s property, claiming the terms of a fence
——————
3 According to Robbins, Bureau officials neglected to mention his right

to seek a stay of the Bureau’s adverse action pending the IBLA’s
resolution of his appeal. See 43 CFR §4.21 (2006). Such a stay, if
granted, would have permitted Robbins to continue to operate under
the 5-year SRUP.
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Opinion of the Court

easement as authority. Robbins accused Shryack of
unlawful entry, tore up the written instrument, and or
dered her off his property. Later that month, after a
meeting about trespass issues with Bureau officials, Mi
chael Miller, a Bureau law enforcement officer, questioned
Robbins without advance notice and without counsel about
the incident with Shryack. The upshot was a charge with
two counts of knowingly and forcibly impeding and inter
fering with a federal employee, in violation of 18 U. S. C.
§111 (2000 ed. and Supp. IV), a crime with a penalty of up
to one year in prison. A jury acquitted Robbins in Decem
ber, after deliberating less than 30 minutes. United States
v. Robbins, 179 F. 3d 1268, 1269 (CA10 1999). According
to a news story, the jurors “were appalled at the actions of
the government” and one said that “Robbins could not
have been railroaded any worse . . . if he worked for the
Union Pacific.” CA10 App. 852. Robbins then moved for
attorney’s fees under the Hyde Amendment, §617, 111
Stat. 2519, note following 18 U. S. C. §3600A, arguing that
the position of the United States was vexatious, frivolous,
or in bad faith. The trial judge denied the motion, and
Robbins appealed too late. See 179 F. 3d, at 1269–1270.
In 1998, Robbins brought the lawsuit now before us,
though there was further vexation to come. In June 1999,
the Bureau denied Robbins’s application to renew his
annual SRUP, based on an accumulation of land-use
penalties levied against him. Robbins appealed, the IBLA
affirmed, In re Robbins, 154 I. B. L. A. 93 (2000), and
Robbins did not seek judicial review. Then, in August, the
Bureau revoked the grazing permit for High Island Ranch,
claiming that Robbins had violated its terms when he kept
Bureau officials from passing over his property to reach
public lands. Robbins appealed to the IBLA, which stayed
the revocation pending resolution of the appeal. Order in
Robbins v. Bureau of Land Management, IBLA 2000–12
(Nov. 10, 1999), CA10 App. 1020.
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Opinion of the Court

The stay held for several years, despite periodic friction.
Without a SRUP, Robbins was forced to redirect his guest
cattle drives away from federal land and through a moun
tain pass with unmarked property boundaries. In August
2000, Vessels and defendants Darrell Barnes and Miller
tried to catch Robbins trespassing in driving cattle over a
corner of land administered by the Bureau. From a
nearby hilltop, they videotaped ranch guests during the
drive, even while the guests sought privacy to relieve
themselves. That afternoon, Robbins alleges, Barnes and
Miller broke into his guest lodge, left trash inside, and
departed without closing the lodge gates.
The next summer, defendant David Wallace spoke with
Preston Smith, an employee of the Bureau of Indian Af
fairs who manages lands along the High Island Ranch’s
southern border, and pressured him to impound Robbins’s
cattle. Smith told Robbins, but did nothing more.
Finally, in January 2003, tension actually cooled to the
point that Robbins and the Bureau entered into a settle
ment agreement that, among other things, established a
procedure for informal resolution of future grazing dis
putes and stayed 16 pending administrative appeals with
a view to their ultimate dismissal, provided that Robbins
did not violate certain Bureau regulations for a 2-year
period. The settlement came apart, however, in January
2004, when the Bureau began formal trespass proceedings
against Robbins and unilaterally voided the settlement
agreement. Robbins tried to enforce the agreement in
federal court, but a district court denied relief in a decision
affirmed by the Court of Appeals in February 2006. Rob
bins v. Bureau of Land Management, 438 F. 3d 1074
(CA10).
C
In this lawsuit (brought, as we said, in 1998), Robbins
asks for compensatory and punitive damages as well as
8 WILKIE v. ROBBINS

Opinion of the Court

declaratory and injunctive relief. Although he originally
included the United States as a defendant, he voluntarily
dismissed the Government, and pressed forward with a
RICO claim charging defendants with repeatedly trying to
extort an easement from him, as well as a similarly
grounded Bivens claim that defendants violated his
Fourth and Fifth Amendment rights. Defendants filed a
motion to dismiss on qualified immunity and failure to
state a claim, which the District Court granted, holding
that Robbins inadequately pleaded damages under RICO
and that the APA and the Federal Tort Claims Act
(FTCA), 28 U. S. C. §1346, were effective alternative
remedies that precluded Bivens relief. The Court of Ap
peals for the Tenth Circuit reversed on both grounds, 300
F. 3d 1208, 1211 (2002), although it specified that Bivens
relief was available only for those “constitutional viola
tions committed by individual federal employees unrelated
to final agency action,” 300 F. 3d, at 1212.
On remand, defendants again moved to dismiss on
qualified immunity. As to the RICO claim, the District
Court denied the motion; as to Bivens, it dismissed what
Robbins called the Fourth Amendment claim for malicious
prosecution and those under the Fifth Amendment for due
process violations, but it declined to dismiss the Fifth
Amendment claim of retaliation for the exercise of Rob
bins’s right to exclude the Government from his property
and to refuse any grant of a property interest without
compensation. After limited discovery, defendants again
moved for summary judgment on qualified immunity. The
District Court adhered to its earlier denial.
This time, the Court of Appeals affirmed, after dealing
with collateral order jurisdiction to consider an interlocu
tory appeal of the denial of qualified immunity, 433 F. 3d
755, 761 (2006) (citing Mitchell v. Forsyth, 472 U. S. 511,
530 (1985)). It held that Robbins had a clearly established
right to be free from retaliation for exercising his Fifth
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Opinion of the Court

Amendment right to exclude the Government from his
private property, 433 F. 3d, at 765–767, and it explained
that Robbins could go forward with the RICO claim be
cause Government employees who “engag[e] in lawful
actions with an intent to extort a right-of-way from [a
landowner] rather than with an intent to merely carry out
their regulatory duties” commit extortion under Wyoming
law and within the meaning of the Hobbs Act, 18 U. S. C.
§1951. 433 F. 3d, at 768. The Court of Appeals rejected
the defense based on a claim of the Government’s legal
entitlement to demand the disputed easement: “if an
official obtains property that he has lawful authority to
obtain, but does so in a wrongful manner, his conduct
constitutes extortion under the Hobbs Act.” Id., at 769.
Finally, the Court of Appeals said again that “Robbins’[s]
allegations involving individual action unrelated to final
agency action are permitted under Bivens.” Id., at 772.
The appeals court declined defendants’ request “to deter
mine which allegations remain and which are precluded,”
however, because defendants had not asked the District
Court to sort them out. Ibid.
We granted certiorari, 549 U. S. ___ (2006), and now
reverse.
II
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 administra
tive and judicial remedies available to a landowner like
Robbins in dealing with the Government’s employees.4
——————
4 We recognized just last Term that the definition of an element of the

asserted cause of action was “directly implicated by the defense of
qualified immunity and properly before us on interlocutory appeal.”
Hartman v. Moore, 547 U. S. 250, 257, n. 5 (2006). Because the same
reasoning applies to the recognition of the entire cause of action, the
Court of Appeals had jurisdiction over this issue, as do we.
10 WILKIE v. ROBBINS

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Bivens, 403 U. S. 388, held that the victim of a Fourth
Amendment violation by federal officers had a claim for
damages, and in the years following we have recognized
two more nonstatutory damages remedies, the first for
employment discrimination in violation of the Due Process
Clause, Davis v. Passman, 442 U. S. 228 (1979), and the
second for an Eighth Amendment violation by prison
officials, Carlson v. Green, 446 U. S. 14 (1980). But we
have also held that any freestanding damages remedy for
a claimed constitutional violation has to represent a judg
ment about the best way to implement a constitutional
guarantee; it is not an automatic entitlement no matter
what other means there may be to vindicate a protected
interest, and in most instances we have found a Bivens
remedy unjustified. We have accordingly held against
applying the Bivens model to claims of First Amendment
violations by federal employers, Bush v. Lucas, 462 U. S.
367 (1983), harm to military personnel through activity
incident to service, United States v. Stanley, 483 U. S. 669
(1987); Chappell v. Wallace, 462 U. S. 296 (1983), and
wrongful denials of Social Security disability benefits,
Schweiker v. Chilicky, 487 U. S. 412 (1988). We have seen
no case for extending Bivens to claims against federal
agencies, FDIC v. Meyer, 510 U. S. 471 (1994), or against
private prisons, Correctional Services Corp. v. Malesko,
534 U. S. 61 (2001).
Whatever the ultimate conclusion, however, our consid
eration of a Bivens request follows a familiar sequence,
and on the assumption that a constitutionally recognized
interest is adversely affected by the actions of federal
employees, the decision whether to recognize a Bivens
remedy may require two steps. In the first place, there is
the question whether any alternative, existing process for
protecting the interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new and
freestanding remedy in damages. Bush, supra, at 378.
 Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

But even in the absence of an alternative, a Bivens remedy
is a subject of judgment: “the federal courts must make
the kind of remedial determination that is appropriate for
a common-law tribunal, paying particular heed, however,
to any special factors counselling hesitation before author
izing a new kind of federal litigation.” Bush, supra, at
378.
A
In this factually plentiful case, assessing the signifi
cance of any alternative remedies at step one has to begin
by categorizing the difficulties Robbins experienced in
dealing with the Bureau. We think they can be separated
into four main groups: torts or tort-like injuries inflicted
on him, charges brought against him, unfavorable agency
actions, and offensive behavior by Bureau employees
falling outside those three categories.
Tortious harm inflicted on him includes Vessels’s unau
thorized survey of the terrain of the desired easement and
the illegal entry into the lodge, and in each instance,
Robbins had a civil remedy in damages for trespass.
Understandably, he brought no such action after learning
about the survey, which was doubtless annoying but not
physically damaging. For the incident at the lodge, he
chose not to pursue a tort remedy, though there is no
question that one was available to him if he could prove
his allegations. Cf. Correctional Services Corp., supra, at
72–73 (considering availability of state tort remedies in
refusing to recognize a Bivens remedy).
The charges brought against Robbins include a series of
administrative claims for trespass and other land-use
violations, a fine for the unauthorized road repair in 1997,
and the two criminal charges that same year. Robbins
had the opportunity to contest all of the administrative
charges; he did fight some (but not all) of the various land-
use and trespass citations, and he challenged the road
12 WILKIE v. ROBBINS

Opinion of the Court

repair fine as far as the IBLA, though he did not take
advantage of judicial review when he lost in that tribunal.5
He exercised his right to jury trial on the criminal com
plaints, and although the rapid acquittal tended to sup
port his charge of baseless action by the prosecution
(egged on by Bureau employees), the federal judge who
presided at the trial did not think the Government’s case
thin enough to justify awarding attorney’s fees, and Rob
bins’s appeal from that decision was late. See Robbins,
179 F. 3d, at 1269–1270. The trial judge’s denial of fees
may reflect facts that dissuaded Robbins from bringing a
state-law action for malicious prosecution, though it is also
possible that a remedy would have been unavailable
against federal officials, see Blake v. Rupe, 651 P. 2d 1096,
1107 (Wyo. 1982) (“Malicious prosecution is not an action
available against a law enforcement official”).6 For each
charge, in any event, Robbins had some procedure to
defend and make good on his position. He took advantage
of some opportunities, and let others pass; although he
had mixed success, he had the means to be heard.
The more conventional agency action included the 1995
cancellation of the right-of-way in Robbins’s favor (origi
——————
5 There was some uncertainty, if not inconsistency, about the willing

ness of the IBLA to entertain the sorts of claims Robbins advances
here. Compare In re Robbins, 146 I. B. L. A. 213, 219 (1998) (rejecting
a claim of “ ‘blackmail’ ” on the merits), with Robbins v. Bureau of Land
Management, 170 I. B. L. A. 219, 226 (2006) (holding that “the trespass
decision must be upheld regardless of BLM’s motive in issuing the
decision”). In any event, he could have advanced the claims in federal
court whether or not the IBLA was willing to listen to them. Cf. In re
Robbins, 167 I. B. L. A. 239, 241 (2005) (noting that Robbins “con
cede[d] that these assertions [of equal protection violations and har
assment] are properly cognizable by a court and he raise[d] them only
to preserve them as part of the record”).
6 Robbins brought a Fourth Amendment claim for malicious prosecu

tion in this litigation, but the District Court dismissed it, Robbins v.
Bureau of Land Management, 252 F. Supp. 2d 1286, 1295–1298 (Wyo.
2003), and Robbins has pursued it no further.
 Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

nally given in return for the unrecorded easement for the
Government’s benefit); the 1995 decision to reduce the
SRUP from five years to one; the termination of the SRUP
in 1999; and the revocation of the grazing permit that
same year. Each time, the Bureau claimed that Robbins
was at fault, and for each claim, administrative review
was available, subject to ultimate judicial review under
the APA. Robbins took no appeal from the 1995 decisions,
stopped after losing an IBLA appeal of the SRUP denial,
and obtained a stay from the IBLA of the Bureau’s revoca
tion of the grazing permit.
Three events elude classification. The 1995 incident in
which Robbins’s horse was struck primarily involved
Robbins and his neighbor, not the Bureau, and the sheriff
never brought criminal charges. The videotaping of ranch
guests during the 2000 drive, while no doubt thoroughly
irritating and bad for business, may not have been unlaw
ful, depending, among other things, upon the location on
public or private land of the people photographed. Cf.
Restatement (Second) of Torts §652B (1976) (defining tort
of intrusion upon seclusion).7 Even if a tort was commit
ted, it is unclear whether Robbins, rather than his guests,
would be the proper plaintiff, or whether the tort should
be chargeable against the Government (as distinct from
employees) under the FTCA, cf. Carlson, 446 U. S., at 19–
20 (holding that FTCA and Bivens remedies were “paral
lel, complementary causes of action” and that the avail
ability of the former did not preempt the latter). The
significance of Wallace’s 2001 attempt to pressure Smith
into impounding Robbins’s cattle is likewise up in the air.
The legitimacy of any impoundment that might have
occurred would presumably have depended on where
particular cattle were on the patchwork of private and
public lands, and in any event, Smith never impounded
——————
7 We are aware of no Wyoming case considering this tort.
14 WILKIE v. ROBBINS

Opinion of the Court

any.
In sum, Robbins has an administrative, and ultimately
a judicial, process for vindicating virtually all of his com
plaints. He suffered no charges of wrongdoing on his own
part without an opportunity to defend himself (and, in the
case of the criminal charges, to recoup the consequent
expense, though a judge found his claim wanting). And
final agency action, as in canceling permits, for example,
was open to administrative and judicial review, as the
Court of Appeals realized, 433 F. 3d, at 772.
This state of the law gives Robbins no intuitively meri
torious case for recognizing a new constitutional cause of
action, but neither does it plainly answer no to the ques
tion whether he should have it. Like the combination of
public and private land ownership around the ranch, the
forums of defense and redress open to Robbins are a
patchwork, an assemblage of state and federal, adminis
trative and judicial benches applying regulations, statutes
and common law rules. It would be hard to infer that
Congress expected the Judiciary to stay its Bivens hand,
but equally hard to extract any clear lesson that Bivens
ought to spawn a new claim. Compare Bush, 462 U. S., at
388 (refusing to create a Bivens remedy when faced with
“an elaborate remedial system that has been constructed
step by step, with careful attention to conflicting policy
considerations”); and Schweiker, 487 U. S., at 426 (“Con
gress chose specific forms and levels of protection for the
rights of persons affected”), with Bivens, 403 U. S., at 397
(finding “no explicit congressional declaration that persons
injured [in this way] may not recover money damages from
the agents, but must instead be remitted to another rem
edy, equally effective in the view of Congress”).
B
This, then, is a case for Bivens step two, for weighing
reasons for and against the creation of a new cause of
 Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

action, the way common law judges have always done. See
Bush, supra, at 378. Here, the competing arguments boil
down to one on a side: from Robbins, the inadequacy of
discrete, incident-by-incident remedies; and from the
Government and its employees, the difficulty of defining
limits to legitimate zeal on the public’s behalf in situations
where hard bargaining is to be expected in the back-and
forth between public and private interests that the Gov
ernment’s employees engage in every day.
1
As we said, when the incidents are examined one by one,
Robbins’s situation does not call for creating a constitu
tional cause of action for want of other means of vindica
tion, so he is unlike the plaintiffs in cases recognizing
freestanding claims: Davis had no other remedy, Bivens
himself was not thought to have an effective one, and in
Carlson the plaintiff had none against Government offi
cials. Davis, 442 U. S., at 245 (“For Davis, as for Bivens,
‘it is damages or nothing’ ” (quoting Bivens, supra, at 410
(Harlan, J., concurring in judgment))); Carlson, supra, at
23 (“[W]e cannot hold that Congress relegated respondent
exclusively to the FTCA remedy” against the Govern
ment).
But Robbins’s argument for a remedy that looks at the
course of dealing as a whole, not simply as so many indi
vidual 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 graz
ing rights, or to be prosecuted, or to have one’s lodge bro
ken 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.
16 WILKIE v. ROBBINS

Opinion of the Court

2
On the other side of the ledger there is a difficulty in
defining a workable cause of action. Robbins describes the
wrong here as retaliation for standing on his right as a
property owner to keep the Government out (by refusing a
free replacement for the right-of-way it had lost), and the
mention of retaliation brings with it a tailwind of support
from our longstanding recognition that the Government
may not retaliate for exercising First Amendment speech
rights, see Rankin v. McPherson, 483 U. S. 378 (1987), or
certain others of constitutional rank, see, e.g., Lefkowitz v.
Turley, 414 U. S. 70 (1973) (Fifth Amendment privilege
against self-incrimination); United States v. Jackson, 390
U. S. 570 (1968) (Sixth Amendment right to trial by jury).
But on closer look, the claim against the Bureau’s em
ployees fails to fit the prior retaliation cases. Those cases
turn on an allegation of impermissible purpose and moti
vation; an employee who spoke out on matters of public
concern and then was fired, for example, would need to
“prove that the conduct at issue was constitutionally
protected, and that it was a substantial or motivating
factor in the termination.” Board of Comm’rs, Wabaunsee
Cty. v. Umbehr, 518 U. S. 668, 675 (1996). In its defense,
the Government may respond that the firing had nothing
to do with the protected speech, or that “it would have
taken the same action even in the absence of the protected
conduct.” Ibid. In short, the outcome turns on “what for”
questions: what was the Government’s purpose in firing
him and would he have been fired anyway? Questions like
these have definite answers, and we have established
methods for identifying the presence of an illicit reason (in
competition with others), not only in retaliation cases but
on claims of discrimination based on race or other charac
teristics. See McDonnell Douglas Corp. v. Green, 411 U. S.
792 (1973).
But a Bivens case by Robbins could not be resolved
 Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

merely by answering a “what for” question or two. All
agree that the Bureau’s employees intended to convince
Robbins to grant an easement.8 But unlike punishing
someone for speaking out against the Government, trying
to induce someone to grant an easement for public use is a
perfectly legitimate purpose: as a landowner, the Govern
ment may have, and in this instance does have, a valid
interest in getting access to neighboring lands. The “what
for” question thus has a ready answer in terms of lawful
conduct.
Robbins’s challenge, therefore, is not to the object the
Government seeks to achieve, and for the most part his
argument is not that the means the Government used
were necessarily illegitimate; rather, he says that defen
dants simply demanded too much and went too far. But as
soon as Robbins’s claim is framed this way, the line-
drawing difficulties it creates are immediately apparent.
A “too much” kind of liability standard (if standard at all)
can never be as reliable a guide to conduct and to any
subsequent liability as a “what for” standard, and that
reason counts against recognizing freestanding liability in
a case like this.
The impossibility of fitting Robbins’s claim into the
simple “what for” framework is demonstrated, repeatedly,
by recalling the various actions he complains about. Most
of them, such as strictly enforcing rules against trespass
or conditions on grazing permits, are legitimate tactics
designed to improve the Government’s negotiating posi
tion. Just as a private landowner, when frustrated at a
neighbor’s stubbornness in refusing an easement, may
press charges of trespass every time a cow wanders across
——————
8 This is the “simple” question Robbins presents for review: “[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?” Brief for Respondent 21.
18 WILKIE v. ROBBINS

Opinion of the Court

the property line or call the authorities to report every
land-use violation, the Government too may stand firm on
its rights and use its power to protect public property
interests. Though Robbins protests that the Government
was trying to extract the easement for free instead of
negotiating, that line is slippery even in this case; the
Government was not offering to buy the easement, but it
did have valuable things to offer in exchange, like contin
ued permission for Robbins to use Government land on
favorable terms (at least to the degree that the terms of a
permit were subject to discretion).9
It is true that the Government is no ordinary land
owner, with its immense economic power, its role as trus
tee for the public, its right to cater to particular segments
of the public (like the recreational users who would take
advantage of the right-of-way to get to remote tracts), and
its wide discretion to bring enforcement actions. But in
many ways, the Government deals with its neighbors as
one owner among the rest (albeit a powerful one). Each
may seek benefits from the others, and each may refuse to
deal with the others by insisting on valuable consideration
for anything in return. And as a potential contracting
party, each neighbor is entitled to drive a hard bargain, as
even Robbins acknowledges, see Tr. of Oral Arg. 31–32.
That, after all, is what Robbins did by flatly refusing to
regrant the easement without further recompense, and
that is what the defendant employees did on behalf of the
Government. So long as they had authority to withhold or
withdraw permission to use Government land and to
——————
9 In light of JUSTICE GINSBURG’s emphasis on the extent and duration

of the harm suffered by Robbins, we do not read her opinion to suggest
that any single adverse action taken by the Government in response to
a valid exercise of property rights would give rise to a retaliation claim.
It thus appears that even if a “what for” question could be imported
into this case, Robbins could not obtain relief without also satisfying an
unspecified, and unworkable, “too much” standard.
 Cite as: 551 U. S. ____ (2007) 19

Opinion of the Court

enforce the trespass and land-use rules (as the IBLA
confirmed that they did have at least most of the time),
they were within their rights to make it plain that Rob
bins’s willingness to give the easement would determine
how complaisant they would be about his trespasses on
public land, when they had discretion to enforce the law to
the letter.10
——————
10 JUSTICE GINSBURG says we mistakenly fail to see that Robbins’s

retaliation claim presents only a “what for” question: did defendants
take the various actions against Robbins in retaliation for refusing to
grant the desired right of way gratis (or simply out of malice prompted
by Robbins’s refusal and their own embarrassment after forgetting to
record the Nelson grant)? But seeing the case as raising only a tradi
tional “what for” question gives short shrift to the Government’s right
to bargain hard in a continuing contest.
In the standard retaliation case recognized in our precedent, the
plaintiff has performed some discrete act in the past, typically saying
something that irritates the defendant official; the question is whether
the official’s later action against the plaintiff was taken for a legitimate
purpose (firing to rid the workforce of a substandard performer, for
example) or for the purpose of punishing for the exercise of a constitu
tional right (that is, retaliation, probably motivated by spite). The
plaintiff’s action is over and done with, and the only question is the
defendant’s purpose, which may be maliciously motivated.
In this case, however, the past act or acts (refusing the right-of-way
without compensation) are simply particular steps in an ongoing
refusal to grant requests for a right-of-way. The purpose of the continu
ing requests is lawful (the Government still could use the right-of-way)
and there are actions the Government may lawfully take to induce or
coerce Robbins to end his refusal (presumably like canceling the non
permanent reciprocal right-of-way originally given to Nelson). The
action claimed to be retaliatory may gratify malice in the heart of the
official who takes it, but the official act remains an instance of hard
bargaining intended to induce the plaintiff to come to legitimate terms.
We do not understand Robbins to contend that malice alone, as distin
guished from malice combined with the desire to acquire an easement,
caused defendants to act the way they did. See Brief for Respondent 21
(accusing defendants of “using their regulatory powers to harass,
punish, and coerce a private citizen into giving the Government his
property without payment”); but cf. post, at 12, n. 3 (GINSBURG, J.,
concurring in part and dissenting in part) (“ ‘Their cause, if they had
20 WILKIE v. ROBBINS

Opinion of the Court

Robbins does make a few allegations, like the unauthor
ized survey and the unlawful entry into the lodge, that
charge defendants with illegal action plainly going beyond
hard bargaining. If those were the only coercive acts
charged, Robbins could avoid the “too much” problem by
fairly describing the Government behavior alleged as
illegality in attempting to obtain a property interest for
——————
one, is nothing to them now; They hate for hate’s sake’ ” (quoting There
Will Be No Peace, reprinted in W. H. Auden: Collected Poems 615
(2007) (E. Mendelson ed.))). Thus, we are not dealing with one discrete
act by a plaintiff and one discrete (possibly retaliatory) act by a defen
dant, the purpose of which is in question. Instead we are confronting a
continuing process in which each side has a legitimate purpose in
taking action contrary to the other’s interest.
“Retaliation” cannot be classed as a basis of liability here, then, ex
cept on one or the other of two assumptions. The first is that the
antagonistic acts by the officials extend beyond the scope of acceptable
means for accomplishing the legitimate purpose; the acts go beyond
hard bargaining on behalf of the Government (whatever spite may lurk
in the defendant’s heart). They are “too much.” The second assumption
is that the presence of malice or spite in an official’s heart renders any
action unconstitutionally retaliatory, even if it would otherwise have
been done in the name of legitimate hard bargaining. The motive-is-all
test is not the law of our retaliation precedent. If a spiteful heart
rendered any official efforts actionable as unconstitutional retaliation,
our retaliation discharge cases would have asked not only whether the
plaintiff was fired for cause (and would have been fired for cause
anyway), but whether the official who discharged the plaintiff tainted
any legitimate purpose with spitefulness in firing this particular,
outspoken critic. But we have taken no such position; to the contrary,
we have held that proof that the action was independently justified on
grounds other than the improper one defeats the claim. See Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). Any other
approach would have frustrated an employer’s legitimate interest in
securing a competent workforce (comparable to the Government’s
interest as a landowner here), and would have introduced the complica
tion of proving motive even in cases in which the action taken was
plainly legitimate.
Since JUSTICE GINSBURG disclaims the second alternative, post at 13,
n. 6, the acts of spite and ill-will that she emphasizes will necessarily
count in a “too much” calculation.
 Cite as: 551 U. S. ____ (2007) 21

Opinion of the Court

nothing, but that is not a fair summary of the body of
allegations before us, according to which defendants’
improper exercise of the Government’s “regulatory pow
ers” is essential to the claim. Brief for Respondent 21. (Of
course, even in that simpler case, the tort or torts by Gov
ernment employees would be so clearly actionable under
the general law that it would furnish only the weakest
argument for recognizing a generally available constitu
tional tort.) Rather, the bulk of Robbins’s charges go to
actions that, on their own, fall within the Government’s
enforcement power.
It would not answer the concerns just expressed to
change conceptual gears and consider the more abstract
concept of liability for retaliatory or undue pressure on a
property owner for standing firm on property rights; look
ing at the claim that way would not eliminate the problem
of degree, and it would raise a further reason to balk at
recognizing a Bivens claim. For at this high level of gen
erality, a Bivens action to redress retaliation against those
who resist Government impositions on their property
rights would invite claims in every sphere of legitimate
governmental action affecting property interests, from
negotiating tax claim settlements to enforcing Occupa
tional Safety and Health Administration regulations.
Exercising any governmental authority affecting the value
or enjoyment of property interests would fall within the
Bivens regime, and across this enormous swath of poten
tial litigation would hover the difficulty of devising a “too
much” standard that could guide an employee’s conduct
and a judicial factfinder’s conclusion.11
——————
11 JUSTICE GINSBURG points out that apprehension of many lawsuits is

not a good reason to refrain from creating a Bivens action. Post, at 10–
11, 15. But there is a world of difference between a popular Bivens
remedy for a well-defined violation, on the one hand, and (on the other)
litigation invited because the elements of a claim are so unclear that no
one can tell in advance what claim might qualify or what might not.
22 WILKIE v. ROBBINS

Opinion of the Court

The point here is not to deny that Government employ
ees 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.
C
In sum, defendants were acting in the name of the
Bureau, which had the authority to grant (and had given)
Robbins some use of public lands under its control and
wanted a right-of-way in return. Defendants bargained
hard by capitalizing on their discretionary authority and
Robbins’s violations of various permit terms, though
truculence was apparent on both sides. One of the defen
dants, at least, clearly crossed the line into impermissible
conduct in breaking into Robbins’s lodge, although it is not
clear from the record that any other action by defendants
was more serious than garden-variety trespass, and the
Government has successfully defended every decision to
eliminate Robbins’s permission to use public lands in the
ways he had previously enjoyed. Robbins had ready at
hand a wide variety of administrative and judicial reme
dies to redress his injuries. The proposal, nonetheless, to
create a new Bivens remedy to redress such injuries collec
tively on a theory of retaliation for exercising his property
right to exclude, or on a general theory of unjustifiably
burdening his rights as a property owner, raises a serious
difficulty of devising a workable cause of action. A judicial
standard to identify illegitimate pressure going beyond
legitimately hard bargaining would be endlessly knotty to
work out, and a general provision for tortlike liability
when Government employees are unduly zealous in press
ing a governmental interest affecting property would
——————
We ground our judgment on the elusiveness of a limiting principle for
Robbins’s claim, not on the potential popularity of a claim that could be
well defined.
 Cite as: 551 U. S. ____ (2007) 23

Opinion of the Court

invite an onslaught of Bivens actions.
We think accordingly that any damages remedy for
actions by Government employees who push too hard for
the Government’s benefit may come better, if at all,
through legislation. “Congress is in a far better position
than a court to evaluate the impact of a new species of
litigation” against those who act on the public’s behalf.
Bush, 462 U. S., at 389. And Congress can tailor any
remedy to the problem perceived, thus lessening the risk
of raising a tide of suits threatening legitimate initiative
on the part of the Government’s employees. Ibid. (“[Con
gress] may inform itself through factfinding procedures
such as hearings that are not available to the courts”); cf.
Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982) (recogniz
ing “the danger that fear of being sued will dampen the
ardor of all but the most resolute, or the most irresponsi
ble public officials, in the unflinching discharge of their
duties” (internal quotation marks and brackets omitted)).
III
Robbins’s other claim is under RICO, which gives civil
remedies to “[a]ny person injured in his business or prop
erty by reason of a violation of [18 U. S. C. §1962].” 18
U. S. C. §1964(c). Section 1962(c) makes it a crime for
“any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity.” RICO defines
“racketeering activity” to include “any act which is indict
able under” the Hobbs Act as well as “any act or threat
involving . . . extortion . . . , which is chargeable under
State law and punishable by imprisonment for more than
one year.” §§1961(1)(A)–(B) (2000 ed., Supp. IV). The
Hobbs Act, finally, criminalizes interference with inter
state commerce by extortion, along with attempts or con
24 WILKIE v. ROBBINS

Opinion of the Court

spiracies, §1951(a), extortion being defined as “the obtain
ing of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or
fear, or under color of official right,” §1951(b)(2).
Robbins charges defendants with violating the Hobbs
Act by wrongfully trying to get the easement under color
of official right, to which defendants reply with a call to
dismiss the RICO claim for two independent reasons: the
Hobbs Act does not apply when the National Government
is the intended beneficiary of the allegedly extortionate
acts; and a valid claim of entitlement to the disputed
property is a complete defense against extortion. Because
we agree with the first contention, we do not reach the
second.
The Hobbs Act does not speak explicitly to efforts to
obtain property for the Government rather than a private
party, and that leaves defendants’ contention to turn on
the common law conception of “extortion,” which we pre
sume Congress meant to incorporate when it passed the
Hobbs Act in 1946. See Scheidler v. National Organiza
tion for Women, Inc., 537 U. S. 393, 402 (2003) (construing
the term “extortion” in the Hobbs Act by reference to its
common law meaning); Evans v. United States, 504 U. S.
255, 259 (1992) (same); see also Morissette v. United
States, 342 U. S. 246, 263 (1952) (“[W]here Congress bor
rows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it pre
sumably knows and adopts the cluster of ideas that were
attached to each borrowed word in the body of learning
from which it was taken”).
“At common law, extortion was a property offense com
mitted by a public official who took any money or thing of
value that was not due to him under the pretense that he
was entitled to such property by virtue of his office.”
Scheidler, supra, at 402 (quoting 4 W. Blackstone, Com
mentaries on the Laws of England 141 (1769), and citing 3
 Cite as: 551 U. S. ____ (2007) 25

Opinion of the Court

R. Anderson, Wharton’s Criminal Law and Procedure
§1393, pp. 790–791 (1957); internal quotation marks
omitted). In short, “[e]xtortion by the public official was
the rough equivalent of what we would now describe as
‘taking a bribe.’ ” Evans, supra, at 260. Thus, while Rob
bins is certainly correct that public officials were not
immune from charges of extortion at common law, see
Brief for Respondent 43, the crime of extortion focused on
the harm of public corruption, by the sale of public favors
for private gain, not on the harm caused by overzealous
efforts to obtain property on behalf of the Government.12
The importance of the line between public and private
beneficiaries for common law and Hobbs Act extortion is
confirmed by our own case law, which is completely barren
of an example of extortion under color of official right
undertaken for the sole benefit of the Government. See,
e.g., McCormick v. United States, 500 U. S. 257, 273 (1991)
(discussing circumstances in which public official’s receipt
of campaign contributions constitutes extortion under
color of official right); Evans, supra, at 257 (Hobbs Act
prosecution for extortion under color of official right,
where public official accepted cash in exchange for favor
able votes on a rezoning application); United States v.
Gillock, 445 U. S. 360, 362 (1980) (Hobbs Act prosecution
for extortion under color of official right, where state
senator accepted money in exchange for blocking a defen
——————
12 Although the legislative history of the Hobbs Act is generally
“sparse and unilluminating with respect to the offense of extortion,”
Evans, 504 U. S., at 264, we know that Congress patterned the Act
after two sources of law: “the Penal Code of New York and the Field
Code, a 19th-century model penal code,” Scheidler, 537 U. S., at 403. In
borrowing from these sources, the Hobbs Act expanded the scope of
common law extortion to include private perpetrators while retaining
the core idea of extortion as a species of corruption, akin to bribery.
But Robbins provides no basis for believing that Congress thought of
broadening the definition of extortion under color of official right
beyond its common law meaning.
26 WILKIE v. ROBBINS

Opinion of the Court

dant’s extradition and agreeing to introduce legislation);
cf. United States v. Deaver, 14 F. 595, 597 (WDNC 1882)
(under the “technical meaning [of extortion] in the com
mon law, . . . [t]he officer must unlawfully and corruptly
receive such money or article of value for his own benefit
or advantage”). More tellingly even, Robbins has cited no
decision by any court, much less this one, from the entire
60-year period of the Hobbs Act that found extortion in
efforts of Government employees to get property for the
exclusive benefit of the Government.
Of course, there is usually a case somewhere that pro
vides comfort for just about any claim. Robbins musters
two for his understanding of extortion under color of offi
cial right, neither of which, however, addressed the benefi
ciary question with any care: People v. Whaley, 6 Cow. 661
(N. Y. 1827), and Willett v. Devoy, 170 App. Div. 203, 155
N. Y. S. 920 (1915). Whaley was about a charge of extor
tion against a justice of the peace who wrongfully ordered
a litigant to pay compensation to the other party as well
as a small administrative fee to the court. Because the
case involved illegally obtaining property for the benefit of
a private third party, it does not stand for the proposition
that an act for the benefit of the Government alone can be
extortion. The second case, Willett, again from New York,
construed a provision of the State’s Public Officers Law.
That statute addressed the problem of overcharging by
public officers, see Birdseye’s Consol. Laws of N. Y. Ann.
§67, p. 4640 (1909), and the court’s opinion on it said that
common law extortion did not draw any distinction “on the
ground that the official keeps the fee himself,” 170 App.
Div., at 204, 155 N. Y. S., at 921. But a single, two-page
opinion from a state intermediate appellate court issued in
1915 is not much indication that the Hobbs Act was
adopted in 1946 subject to the understanding that com
mon law extortion was spacious enough to cover the case
Robbins states. There is a reason he is plumbing obscu
 Cite as: 551 U. S. ____ (2007) 27

Opinion of the Court

rity.
Robbins points to what we said in United States v.
Green, 350 U. S. 415, 420 (1956), that “extortion as defined
in the [Hobbs Act] in no way depends upon having a direct
benefit conferred on the person who obtains the property.”
He infers that Congress could not have meant to prohibit
extortionate acts in the interest of private entities like
unions, but ignore them when the intended beneficiary is
the Government. See Brief for Respondent 47–48. But
Congress could very well have meant just that; drawing a
line between private and public beneficiaries prevents
suits (not just recoveries) against public officers whose
jobs are to obtain property owed to the Government. So,
without some other indication from Congress, it is not
reasonable to assume that the Hobbs Act (let alone RICO)
was intended to expose all federal employees, whether in
the Bureau of Land Management, the Internal Revenue
Service, the Office of the Comptroller of the Currency
(OCC), or any other agency, to extortion charges whenever
they stretch in trying to enforce Government property
claims. See Sinclair v. Hawke, 314 F. 3d 934, 944 (CA8
2003) (OCC employees “do not become racketeers by act
ing like aggressive regulators”). As we just suggested,
Robbins does not face up to the real problem when he says
that requiring proof of a wrongful intent to extort would
shield well-intentioned Government employees from liabil
ity. It is not just final judgments, but the fear of criminal
charges or civil claims for treble damages that could well
take the starch out of regulators who are supposed to
bargain and press demands vigorously on behalf of the
Government and the public. This is the reason we would
want to see some text in the Hobbs Act before we could say
that Congress meant to go beyond the common law preoc
cupation with official corruption, to embrace the expansive
notion of extortion Robbins urges on us.
He falls back to the argument that defendants violated
28 WILKIE v. ROBBINS

Opinion of the Court

Wyoming’s blackmail statute, see Wyo. Stat. Ann. §6–2–402
(1977–2005),13 which he says is a separate predicate offense
for purposes of RICO liability. But even assuming that
defendants’ conduct would be “chargeable under State law
and punishable by imprisonment for more than one year,”
18 U. S. C. §1961(1)(A), it cannot qualify as a predicate
offense for a RICO suit unless it is “capable of being generi
cally classified as extortionate,” Scheidler, 537 U. S., at 409,
410; accord, United States v. Nardello, 393 U. S. 286, 296
(1969). For the reasons just given, the conduct alleged does
not fit the traditional definition of extortion, so Robbins’s
RICO claim does not survive on a theory of state-law deri
vation.
* * *
Because neither Bivens nor RICO gives Robbins a cause
of action, there is no reason to enquire further into the
merits of his claim or the asserted defense of qualified
immunity. The judgment of the Court of Appeals for the
Tenth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.

——————
13 Section 6–2–402 provides:

“(a) A person commits blackmail if, with the intent to obtain property of
another or to compel action or inaction by any person against his will,
the person:
. . . . .
“(ii) Accuses or threatens to accuse a person of a crime or immoral
conduct which would tend to degrade or disgrace the person or subject
him to the ridicule or contempt of society.”
 Cite as: 551 U. S. ____ (2007) 1

THOMAS, J., concurring

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 THOMAS, with whom JUSTICE SCALIA joins,
concurring.
The Court correctly concludes that Bivens v. Six Un
known Fed. Narcotics Agents, 403 U. S. 388 (1971), does
not supply a cause of action in this case. I therefore join
its opinion. I write separately because I would not extend
Bivens even if its reasoning logically applied to this case.
“Bivens is a relic of the heady days in which this Court
assumed common-law powers to create causes of action.”
Correctional Services Corp. v. Malesko, 534 U. S. 61, 75
(2001) (SCALIA, J., joined by THOMAS, J., concurring).
Accordingly, in my view, Bivens and its progeny should be
limited “to the precise circumstances that they involved.”
Malesko, supra, at 75.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of GINSBURG, J.

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 Wyo
ming 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 nonnegotia
ble. 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 un
founded 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
2 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

that the Fifth Amendment’s Takings Clause forbids gov
ernment 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). Never
theless, the Court rejects his claim, for it fears the conse
quences. Allowing Robbins to pursue this suit, the Court
maintains, would open the floodgates to a host of unwor
thy 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 suffi
cient to minimize the Court’s concern. Cf. Village of Wil
lowbrook 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.”
 Cite as: 551 U. S. ____ (2007) 3

Opinion of GINSBURG, J.

I
The Court acknowledges that, at this stage of proceed
ings, 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 de
mands, 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 im
mediately. Shortly after their first conversation, Vessels
wrote Robbins to ask permission to survey his land, pre
sumably to establish the contours of the easement. Rob
bins 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
4 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

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 legiti
mate way to document instances when Robbins crossed
 Cite as: 551 U. S. ____ (2007) 5

Opinion of GINSBURG, J.

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 “inves
tigate harder” and “if [he] could find anything, to find it.”
App. 129, 130. Parodi testified, in relation to the instruc
tions 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 willing
ness to give the easement would determine how complai
sant 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 Rob
bins 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.
6 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

The story thus far told is merely illustrative of Robbins’
allegations. The record is replete with accounts of tres
passes 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 “some
thing 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’ allega
tion 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.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 devas
——————
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 award
ing 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.
 Cite as: 551 U. S. ____ (2007) 7

Opinion of GINSBURG, J.

tating impact on Robbins’ business. Robbins testified that
in a typical summer, the High Island Ranch would ac
commodate 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. Madi
son, 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. “Histori
cally,” the Court observed, “damages have been regarded
as the ordinary remedy for an invasion of personal inter
ests 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
8 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

[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 judici
ary 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 dam
ages 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 fac
tors 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.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 ser
vant, the plaintiff had recourse to “an elaborate, compre
hensive scheme” administered by the Civil Service Com
mission, in which constitutional challenges were “fully
cognizable.” Id., at 385, 386. The Court declined to recog
nize a judicial remedy, lest it interfere with Congress’
carefully calibrated system. For similar reasons, in
——————
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.
 Cite as: 551 U. S. ____ (2007) 9

Opinion of GINSBURG, J.

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 congres
sional 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 particu
lar 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
10 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

(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 affect
ing 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 dis
crimination] claims.” 442 U. S., at 248 (internal quotation
marks and citation omitted). This Court disagreed, turn
ing 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 de
frauded by misleading proxies. Judicial resources, I
am well aware, are increasingly scarce these days.
Nonetheless, when we automatically close the court
house 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
 Cite as: 551 U. S. ____ (2007) 11

Opinion of GINSBURG, J.

Justice Harlan’s sound counsel.
B
In the Court’s view Robbins’ complaint poses an inordi
nate 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 [Rob
bins] 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 busi
ness.3 Even if we allowed that the BLM employees had a
——————
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
12 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

permissible objective throughout their harassment of
Robbins, and also that they pursued their goal through
“legitimate tactics,” id., at 16,4 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 commission
ers 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 objec
tives (e.g., maintaining relationships of trust with those
from whom services are purchased). Id., at 674. The
Court, furthermore, instructed that even where the back
ground law allows a government agency to terminate a
contractor at will, the agency lacks carte blanche to do so
——————
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 “con
vince.” 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, re
printed in W. H. Auden: Collected Poems 615 (E. Mendelson ed. 2007).
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 amount
ing to willful violations of civil, criminal, or constitutional law.” Ibid.
 Cite as: 551 U. S. ____ (2007) 13

Opinion of GINSBURG, J.

in retaliation for constitutionally protected conduct. Id.,
at 677.5 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 selec
tively, in retaliation for his exercise of a constitutional
right.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 constitution
ally protected conduct (resisting the surrender of his
property sans compensation), and if so, whether that was
the reason BLM agents harassed him.7
——————
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.
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).
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
14 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

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 every
day bureaucratic overreaching fare for constitutional
litigation. See Olech, 528 U. S., at 566 (BREYER, J., con
curring 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 experi
ment. 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

——————

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.

 Cite as: 551 U. S. ____ (2007) 15

Opinion of GINSBURG, J.

rights. 433 F. 3d 755, 767 (CA10 2006); Brief for Petition
ers 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).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 affect
ing property interests.” Ante, at 21. Nevertheless, shut
ting 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 merito
rious, fear that there will be many of them does not pro
vide 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 har
assment 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 Sav
ings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal
——————
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.
16 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

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 bar
gaining 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.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 judg
ment, 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 constitu
tional 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

——————
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.
 Cite as: 551 U. S. ____ (2007) 17

Opinion of GINSBURG, J.

unlawful. Id., at 201–202.10
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 cor
rect. 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 un
necessarily 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);
——————
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).
18 WILKIE v. ROBBINS

Opinion of GINSBURG, J.

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 compensa
tion 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 rea
sonable officer that his conduct was unlawful in the situa
tion 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. How
ever, 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).
 Cite as: 551 U. S. ____ (2007) 19

Opinion of GINSBURG, J.

* * *
Thirty-six years ago, the Court created the Bivens rem
edy. 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 constitu
tional 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.11

——————
11 I agree that Robbins failed to state a claim under RICO and there

fore join Part III of the Court’s opinion.