WILKIE et al. v. ROBBINS

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537 OCTOBER TERM, 2006
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 owners,
the State of Wyoming, and the National Government. The previous
owner granted the United States an easement to use and maintain 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 other
wise isolated parts of the ranch. When Robbins bought the ranch, he
took title free of the easement, which the Bureau of Land Management
had not recorded. Robbins continued to graze cattle and run guest cat
tle drives under grazing permits and a Special Recreation Use Permit
(SRUP) issued by the Bureau. 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) began a campaign of harassment and
intimidation to force him to regrant 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. Narcotics
Agents, 403 U. S. 388, claim that defendants violated his Fourth and
Fifth Amendment rights. Ultimately, the District Court denied de
fendants’ motion to dismiss the RICO claim based on qualified 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 re
taliation for the exercise of Robbins’s rights to exclude the Government
from his property and to refuse to grant a 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. 549–562.
(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 interest

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amounts to a convincing reason for the Judicial Branch to refrain 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 factors counselling hesitation before
authorizing a new kind of federal litigation.” 462 U. S., at 378.
Pp. 549–550.
(b) For purposes of step one, Robbins’s difficulties with the Bureau
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 administrative
claims for trespass and other land-use violations, a fine for an unauthor
ized road repair, and two criminal charges. Robbins had the opportu
nity 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 exercised 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 Government’s case thin enough to
justify attorney’s fees, and Robbins appealed that ruling late. The
third category, unfavorable agency actions, involved a 1995 cancellation
of the right-of-way given to Robbins’s predecessor in return for the
Government’s unrecorded easement, a 1995 decision to reduce the SRUP
from five years to one, and in 1999, the SRUP’s termination and a graz
ing permit’s revocation. Administrative review was available for each
claim, subject to ultimate judicial review under the Administrative Pro
cedure Act. Robbins 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. Bureau 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 Government, not
its employees. Likewise up in the air is the significance of an attempt
to pressure a Bureau of Indian Affairs employee to impound Robbins’s
cattle. An impoundment’s legitimacy would have depended on whether
the cattle were on private or public land, and no impoundment actually

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occurred. Thus, Robbins has an administrative, and ultimately a judi
cial, process for vindicating virtually all of his complaints. This state
of law gives him no intuitively meritorious case for a new constitutional
cause of action, but neither does it plainly answer no to the question
whether he should have it. Pp. 551–554.
(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 exclude the Government
does not fit this Court’s retaliation cases, which involve an allegation of
impermissible purpose and motivation—e. g., an employee is fired after
speaking out on matters of public concern, Board of Comm’rs, Wabaun
see 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 illicit 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 stand
ard can never be as reliable as a “what for” one. Most of the offending
actions are legitimate tactics designed to improve the Government’s ne
gotiating 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 Robbins’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 Rob
bins’s willingness to give an easement would determine how complai
sant they would be about his trespasses on public land. As for Rob
bins’s more abstract claim, recognizing a Bivens action for 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 settle
ments to enforcing Occupational Safety and Health Administration regu
lations. Pp. 554–562.
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 interfer
ence with interstate commerce by extortion, along with attempts or
conspiracies, 18 U. S. C. § 1951(a), and defines extortion as “the obtaining

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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 ef
forts to obtain property for the Government rather than a private party,
so the question turns on the common law conception of “extortion,”
which Congress is presumed to have incorporated into the Act in 1946,
see, e. g., Scheidler v. National Organization for Women, Inc., 537 U. S.
393, 402. At common law, extortion “by the public official was the
rough equivalent of what [is] now describe[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 decision 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 Rob
bins’s claim 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. Without some other indi
cation from Congress, it is not reasonable to assume that the Hobbs Act
(let alone RICO) was intended to expose all federal employees to extor
tion charges whenever they stretch in trying to enforce Government
property claims. Because defendants’ conduct does not fit the tradi
tional definition of extortion, it also does not survive as a RICO predi
cate offense on the theory that it is “chargeable under [Wyoming] law
and punishable by imprisonment for more than one year,” 18 U. S. C.
§ 1961(1)(A). Pp. 563–568.
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. Thomas, J.,
filed a concurring opinion, in which Scalia, J., joined, post, p. 568. Gins
burg, J., filed an opinion concurring in part and dissenting in part, in
which Stevens, J., joined, post, p. 568.

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Opinion of the Court
Deputy Solicitor General Garre argued the cause for peti
tioners. With him on the briefs were Solicitor General
Clement, Assistant Attorney General Keisler, David B.
Salmons, Barbara L. Herwig, and Edward Himmelfarb.
Laurence H. Tribe argued the cause for respondent.
With him on the brief were Karen Budd-Falen, Marc Stimp
ert, Amy Howe, Kevin K. Russell, Pamela S. Karlan, and
Thomas C. Goldstein.*
Justice Souter delivered the opinion of the Court.
Officials of the Bureau of Land Management stand accused
of harassment and intimidation aimed at extracting an ease
ment across private property. The questions here are
whether the landowner has either a private action for dam
ages 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 Racket
eer Influenced and Corrupt Organizations 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 terri
tory. The ranch is a patchwork of mostly contiguous land
*Amber H. Rovner and Larry D. Thompson, Jr., filed a brief for the
National Wildlife Federation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for Brooks Realty
et al. by Nancie G. Marzulla and Roger J. Marzulla; for the Mountain
States Legal Foundation by Steven J. Lechner and William Perry Pend
ley; for the New Mexico Cattle Growers’ Association et al. by Lee E.
Peters; for the Oregon Cattlemen’s Association et al. by Paul A. Turcke;
for the Pacific Legal Foundation et al. by R. S. Radford; for the Paragon
Foundation, Inc., by Paul M. Kienzle III; and for the Public Lands Council
et al. by Mark B. Wiletsky.

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parcels intermingled with tracts belonging to other private
owners, the State of Wyoming, and the National Govern
ment. Its natural resources include wildlife and mineral de
posits, and its mountainous western portion, called the upper
Rock Creek area, is a place of great natural beauty. In re
sponse to persistent requests by environmentalists and out
door enthusiasts, the Bureau tried to induce the ranch’s pre
vious 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, Nel
son 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 reli
ance on grazing permits and a Special Recreation Use Per
mit (SRUP) issued by the Bureau. But Robbins knew noth
ing 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 op
eration of Wyoming law. See Wyo. Stat. Ann. § 34–1–120
(2005).
When the Bureau’s employee Joseph Vessels 1 discovered,
in June 1994, that the Bureau’s inaction had cost it the ease
ment, he telephoned Robbins and demanded an easement to
replace Nelson’s. Robbins refused but indicated he would
1 Vessels was named as a defendant when the complaint was filed, but
he has since died.

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consider granting one in return for something. In a later
meeting, Vessels allegedly told Robbins that “ ‘the Federal
Government does not negotiate,’ ” and talks broke down.
Brief for Respondent 5. Robbins says that over the next
several years the defendant-petitioners (hereinafter defend
ants), who are current and former employees of the Bureau,
carried on a campaign of harassment 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 con
versation in June, Vessels wrote to Robbins for permission
to survey his land in the area of the desired easement. Rob
bins 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, Rob
bins 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
2 Because this case arises on interlocutory appeal from denial of defend
ants’ motion for summary judgment, we recite the facts in the light most
favorable to Robbins.

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also heard colleagues make certain disparaging 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 mistreated Robbins
and described its conduct as “the volcanic point” in his deci
sion to retire. Id., at 133.
Vessels and his supervisor, defendant Charles Wilkie, con
tinued to demand the easement, under threat to cancel the
reciprocal maintenance right-of-way that Nelson had negoti
ated. 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 Adminis
trative 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 Pen
noyer. 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.); 9 Record, Pl. Exh. 2, pp. 164–166;
10 id., Pl. Exh. 35a, at 102–108. Defendant Gene Leone
fielded a call from Pennoyer regarding the incident, encour
aged 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 [Robbins’s] permits and
get him out of business.’ ” App. 125, 126.
In October 1995, the Bureau claimed various permit viola
tions 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 busi
ness, owing to the resulting uncertainty about permission to
conduct cattle drives. Robbins declined to seek administra
tive review, however, in part because Bureau officials told

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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 vio
lations. Robbins claimed some charges were false, and oth
ers 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 contested 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 refused
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 unauthor
ized repairs when he sent the Bureau a bill for reimburse
ment. 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 “ ‘blackmail’ ” him into providing the
easement; it said that “[t]he record effectively shows . . . in
transigence 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 en
tered Robbins’s property, claiming the terms of a fence ease
ment as authority. Robbins accused Shryack of unlawful
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 resolu
tion 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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entry, tore up the written instrument, and ordered her off his
property. Later that month, after a meeting about trespass
issues with Bureau officials, Michael Miller, a Bureau law
enforcement officer, questioned Robbins without advance no
tice and without counsel about the incident with Shryack.
The upshot was a charge with two counts of knowingly and
forcibly impeding and interfering 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 December, 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. § 3006A, ar
guing 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.
The stay held for several years, despite periodic friction.
Without a SRUP, Robbins was forced to redirect his guest

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cattle drives away from federal land and through a mountain
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 af
ternoon, 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 Affairs
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 settlement
agreement that, among other things, established a procedure
for informal resolution of future grazing disputes and stayed
16 pending administrative appeals with a view to their ulti
mate 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 uni
laterally 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. Robbins 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 declara
tory 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

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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 Amend
ment rights. Defendants filed a motion to dismiss on quali
fied 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 alter
native remedies that precluded Bivens relief. The Court of
Appeals for the Tenth Circuit reversed on both grounds, 300
F. 3d 1208, 1211 (2002), although it specified that Bivens re
lief was available only for those “constitutional violations
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 re
taliation for the exercise of Robbins’s right to exclude the
Government from his property and to refuse any grant of a
property interest without compensation. After limited dis
covery, defendants again moved for summary judgment on
qualified immunity. The District Court adhered to its ear
lier denial.
This time, the Court of Appeals affirmed, after dealing
with collateral order jurisdiction to consider an interlocutory
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 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 because Government employees who

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“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 Ap
peals rejected the defense based on a claim of the Govern
ment’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 con
stitutes extortion under the Hobbs Act.” Id., at 769. Fi
nally, the Court of Appeals said again that “Robbins’[s] alle
gations involving individual action unrelated to final agency
action are permitted under Bivens.” Id., at 772. The ap
peals court declined defendants’ request “to determine
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. 1075 (2006), and now
reverse.
II
The first question is whether to devise a new Bivens dam
ages action for retaliating against the exercise of ownership
rights, in addition to the discrete administrative and judicial
remedies available to a landowner like Robbins in dealing
with the Government’s employees.4 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 dam
ages remedies, the first for employment discrimination in vi
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 quali
fied 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 Ap
peals had jurisdiction over this issue, as do we.

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olation 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 dam
ages remedy for a claimed constitutional violation has to
represent a judgment 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 Amend
ment 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 wrong
ful 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 consider
ation 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. 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 determi
nation that is appropriate for a common-law tribunal, paying
particular heed, however, to any special factors counselling
hesitation before authorizing a new kind of federal litiga
tion.” Bush, supra, at 378.

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A
In this factually plentiful case, assessing the significance
of any alternative remedies at step one has to begin by cate
gorizing 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 offen
sive behavior by Bureau employees falling outside those
three categories.
Tortious harm inflicted on him includes Vessels’s unauthor
ized 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 viola
tions, 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 tres
pass citations, and he challenged the road 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
5 There was some uncertainty, if not inconsistency, about the willingness
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 Manage
ment, 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

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right to jury trial on the criminal complaints, and although
the rapid acquittal tended to support 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 attor
ney’s fees, and Robbins’s appeal from that decision was late.
See Robbins, 179 F. 3d, at 1269–1270. The trial judge’s de
nial 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 (originally
given in return for the unrecorded easement for the Govern
ment’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
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 “concede[d] that these
assertions [of equal protection violations and harassment] 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 prosecution
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.

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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 revocation of the grazing permit.
Three events elude classification. The 1995 incident in
which Robbins’s horse was struck primarily involved Rob
bins 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 unlawful, depend
ing, among other things, upon the location on public or pri
vate land of the people photographed. Cf. Restatement
(Second) of Torts § 652B (1976) (defining tort of intrusion
upon seclusion).7 Even if a tort was committed, 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 “parallel, complementary
causes of action” and that the availability 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 impound
ment that might have occurred would presumably have de
pended on where particular cattle were on the patchwork of
private and public lands, and in any event, Smith never
impounded 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 ex
pense, though a judge found his claim wanting). And final
agency action, as in canceling permits, for example, was open
7 We are aware of no Wyoming case considering this tort.

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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 meritori
ous case for recognizing a new constitutional cause of action,
but neither does it plainly answer no to the question whether
he should have it. Like the combination of public and pri
vate land ownership around the ranch, the forums of defense
and redress open to Robbins are a patchwork, an assemblage
of state and federal, administrative 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
(“Congress 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 remedy,
equally effective in the view of Congress”).
B
This, then, is a case for Bivens step two, for weighing rea
sons for and against the creation of a new cause of 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 bargain
ing is to be expected in the back-and-forth between public
and private interests that the Government’s employees en
gage in every day.

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1
As we said, when the incidents are examined one by one,
Robbins’s situation does not call for creating a constitutional
cause of action for want of other means of vindication, 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 officials. 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 judg
ment))); Carlson, supra, at 23 (“[W]e cannot hold that Con
gress relegated respondent exclusively to the FTCA rem
edy” against the Government).
But Robbins’s argument for a remedy that looks at the
course of dealing as a whole, not simply as so many individ
ual incidents, has the force of the metaphor Robbins invokes,
“death by a thousand cuts.” Brief for Respondent 40. It is
one thing to be threatened with the loss of grazing rights,
or to be prosecuted, or to have one’s lodge broken into, but
something else to be subjected to this in combination over a
period of six years, by a series of public officials bent on
making life difficult. Agency appeals, lawsuits, and criminal
defense take money, and endless battling depletes the spirit
along with the purse. The whole here is greater than the
sum of its parts.
2
On the other side of the ledger there is a difficulty in de
fining a workable cause of action. Robbins describes the
wrong here as retaliation for standing on his right as a prop
erty 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 re
taliate for exercising First Amendment speech rights, see
Rankin v. McPherson, 483 U. S. 378 (1987), or certain others

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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 employ
ees fails to fit the prior retaliation cases. Those cases turn
on an allegation of impermissible purpose and motivation; 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 out
come turns on “what for” questions: what was the Govern
ment’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 re
taliation cases but on claims of discrimination based on race
or other characteristics. See McDonnell Douglas Corp. v.
Green, 411 U. S. 792 (1973).
But a Bivens case by Robbins could not be resolved
merely by answering a “what for” question or two. All
agree that the Bureau’s employees intended to convince Rob
bins 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 Government may
have, and in this instance does have, a valid interest in get
8 This is the “simple” question Robbins presents for review: “[C]an gov
ernment 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.

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ting 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 Gov
ernment seeks to achieve, and for the most part his argu
ment is not that the means the Government used were neces
sarily illegitimate; rather, he says that defendants simply
demanded too much and went too far. But as soon as Rob
bins’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 recall
ing 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 im
prove the Government’s negotiating position. Just as a pri
vate landowner, when frustrated at a neighbor’s stubborn
ness in refusing an easement, may press charges of trespass
every time a cow wanders across the property line or call
the authorities to report every land-use violation, the Gov
ernment 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 con
tinued 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
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

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It is true that the Government is no ordinary landowner,
with its immense economic power, its role as trustee 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 Gov
ernment 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 enti
tled 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 fur
ther recompense, and that is what the defendant employees
did on behalf of the Government. So long as they had au
thority to withhold or withdraw permission to use Govern
ment land and to 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
Robbins’s willingness to give the easement would determine
how complaisant they would be about his trespasses on pub
lic land, when they had discretion to enforce the law to the
letter.10
this case, Robbins could not obtain relief without also satisfying an unspec
ified, and unworkable, “too much” standard.
10 Justice Ginsburg says we mistakenly fail to see that Robbins’s retal
iation 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 traditional “what for” ques
tion 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 plain
tiff has performed some discrete act in the past, typically saying some

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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
thing that irritates the defendant official; the question is whether the offi
cial’s later action against the plaintiff was taken for a legitimate purpose
(firing to rid the work force of a substandard performer, for example) or
for the purpose of punishing for the exercise of a constitutional 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 continuing re
quests 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 nonpermanent
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 distinguished from malice com
bined 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
578–579, n. 3 (Ginsburg, J., concurring in part and dissenting in part)
(“ ‘Their cause, if they had 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 (E. Mendelson ed. 2007))). Thus, we are not dealing
with one discrete act by a plaintiff and one discrete (possibly retaliatory)
act by a defendant, the purpose of which is in question. Instead we are
confronting a continuing process in which each side has a legitimate pur
pose in taking action contrary to the other’s interest.
“Retaliation” cannot be classed as a basis of liability here, then, except
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 ac
complishing 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 pres
ence of malice or spite in an official’s heart renders any action unconstitu

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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 illegal
ity in attempting to obtain a property interest for 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 powers” is essential to the
claim. Brief for Respondent 21. (Of course, even in that
simpler case, the tort or torts by Government employees
would be so clearly actionable under the general law that it
would furnish only the weakest argument for recognizing a
generally available constitutional 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; looking at the
tionally 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 inde
pendently 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 inter
est in securing a competent work force (comparable to the Government’s
interest as a landowner here), and would have introduced the complication
of proving motive even in cases in which the action taken was plainly
legitimate.
Since Justice Ginsburg disclaims the second alternative, post, at 580,
n. 6, the acts of spite and ill will that she emphasizes will necessarily count
in a “too much” calculation.

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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 generality, a Bivens
action to redress retaliation against those who resist Govern
ment 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 Occupational 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 potential 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
The point here is not to deny that Government employees
sometimes overreach, for of course they do, and they may
have done so here if all the allegations are true. The point
is the reasonable fear that a general Bivens cure would be
worse than the disease.
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 capi
talizing on their discretionary authority and Robbins’s viola
tions of various permit terms, though truculence was appar
ent on both sides. One of the defendants, at least, clearly
11 Justice Ginsburg points out that apprehension of many lawsuits is
not a good reason to refrain from creating a Bivens action. Post, at 577,
582. 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. 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.

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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 success
fully defended every decision to eliminate Robbins’s per
mission to use public lands in the ways he had previously
enjoyed. Robbins had ready at hand a wide variety of
administrative and judicial remedies to redress his injuries.
The proposal, nonetheless, to create a new Bivens remedy to
redress such injuries collectively 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 pres
sure 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 pressing a governmental interest affecting prop
erty would invite an onslaught of Bivens actions.
We think accordingly that any damages remedy for actions
by Government employees who push too hard for the Gov
ernment’s benefit may come better, if at all, through legisla
tion. “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 per
ceived, thus lessening the risk of raising a tide of suits
threatening legitimate initiative on the part of the Govern
ment’s employees. Ibid. (“[Congress] 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) (recognizing “the danger that fear of being
sued will dampen the ardor of all but the most resolute, or
the most irresponsible public officials, in the unflinching dis
charge of their duties” (internal quotation marks and brack
ets omitted)).

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III
Robbins’s other claim is under RICO, which gives civil
remedies to “[a]ny person injured in his business or property
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 com
merce, to conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of rack
eteering activity.” RICO defines “racketeering activity” to
include “any act which is indictable under” the Hobbs Act as
well as “any act or threat involving . . . extortion . . . , which
is chargeable under State law and punishable by imprison
ment for more than one year.” §§ 1961(1)(A)–(B) (2000 ed.,
Supp. IV). The Hobbs Act, finally, criminalizes interference
with interstate commerce by extortion, along with attempts
or conspiracies, § 1951(a), extortion being defined as “the ob
taining 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 offi
cial 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 in
tended beneficiary of the allegedly extortionate acts; and a
valid claim of entitlement to the disputed property is a com
plete 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 ob
tain 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 presume
Congress meant to incorporate when it passed the Hobbs
Act in 1946. See Scheidler v. National Organization for
Women, Inc., 537 U. S. 393, 402 (2003) (construing the term

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“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 borrows terms of art in which
are accumulated the legal tradition and meaning of centuries
of practice, it presumably 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, Commentaries on
the Laws of England 141 (1769), and citing 3 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 Robbins 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 con
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 extor
tion under color of official right beyond its common law meaning.

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firmed 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., McCor
mick 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 ex
tortion under color of official right, where public official ac
cepted cash in exchange for favorable 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 ex
change for blocking a defendant’s extradition and agreeing
to introduce legislation); cf. United States v. Deaver, 14 F.
595, 597 (WDNC 1882) (under the “technical meaning [of ex
tortion] in the common 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 extor
tion in efforts of Government employees to get property for
the exclusive benefit of the Government.
Of course, there is usually a case somewhere that provides
comfort for just about any claim. Robbins musters two for
his understanding of extortion under color of official right,
neither of which, however, addressed the beneficiary ques
tion 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 extortion against a
justice of the peace who wrongfully ordered a litigant to pay
compensation to the other party as well as a small adminis
trative 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

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State’s Public Officers Law. That statute addressed the
problem of overcharging by public officers, see 4 Birdseye’s
Consol. Laws of N. Y. Ann., Art. V, § 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 intermedi
ate appellate court issued in 1915 is not much indication that
the Hobbs Act was adopted in 1946 subject to the under
standing that common law extortion was spacious enough
to cover the case Robbins states. There is a reason he is
plumbing obscurity.
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 in
fers that Congress could not have meant to prohibit extor
tionate acts in the interest of private entities like unions, but
ignore them when the intended beneficiary is the Govern
ment. 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 re
coveries) 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 Manage
ment, the Internal Revenue Service, the Office of the Comp
troller of the Currency (OCC), or any other agency, to extor
tion 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 acting 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

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from liability. 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 Gov
ernment 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 preoccupation
with official corruption, to embrace the expansive notion of
extortion Robbins urges on us.
He falls back to the argument that defendants violated
Wyoming’s blackmail statute, see Wyo. Stat. Ann. § 6–2–402
(2005),13 which he says is a separate predicate offense for
purposes of RICO liability. But even assuming that defend
ants’ conduct would be “chargeable under State law and pun
ishable 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 generically 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 tradi
tional definition of extortion, so Robbins’s RICO claim does
not survive on a theory of state-law derivation.
* * *
Because neither Bivens nor RICO gives Robbins a cause
of action, there is no reason to enquire further into the mer
its of his claim or the asserted defense of qualified immunity.
The judgment of the Court of Appeals for the Tenth Circuit
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 con
duct which would tend to degrade or disgrace the person or subject him
to the ridicule or contempt of society.”

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is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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 as
sumed common-law powers to create causes of action.” Cor
rectional 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.
Justice Ginsburg, with whom Justice Stevens joins,
concurring in part and dissenting in part.
Bureau of Land Management (BLM) officials in Wyoming
made a careless error. They failed to record an easement
obtained for the United States along a stretch of land on the
privately owned High Island Ranch. Plaintiff-respondent
Frank Robbins purchased the ranch knowing nothing about
the easement granted by the prior owner. Under Wyoming
law, Robbins took title to the land free of the easement.
BLM officials, realizing their mistake, demanded from Rob
bins an easement—for which they did not propose to pay—
to replace the one they carelessly lost. Their demand, one
of them told Robbins, was nonnegotiable. Robbins was di
rected 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 intimida
tion to force Robbins to give in. They refused to maintain

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the road providing access to the ranch, trespassed on Rob
bins’ property, brought unfounded criminal charges against
him, canceled his special recreational use permit and grazing
privileges, interfered with his business operations, and in
vaded the privacy of his ranch guests on cattle drives.
Robbins commenced this lawsuit to end the incessant har
assment and intimidation he endured. He asserted that the
Fifth Amendment’s Takings Clause forbids government ac
tion 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 chal
lenge 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 555 (quoting Brief
for Respondent 40). Nevertheless, the Court rejects his
claim, for it fears the consequences. Allowing Robbins to
pursue this suit, the Court maintains, would open the flood
gates to a host of unworthy suits “in every sphere of legiti
mate governmental action affecting property interests.”
Ante, at 561.
But this is no ordinary case of “hard bargaining,” ante, at
560, or bureaucratic arrogance. Robbins charged “vindictive
action” to extract property from him without paying a fair
price. He complains of a course of conduct animated by an
illegitimate desire to “get him.” That factor is sufficient to
minimize the Court’s concern. Cf. Village of Willowbrook
v. Olech, 528 U. S. 562, 565–566 (2000) (Breyer, J., concur
ring in result) (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 offi

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cers who abuse their regulatory powers by harassing and
punishing property owners who refuse to surrender their
property to the United States without fair compensation?
The answer should be a resounding “Yes.”
I
The Court acknowledges that, at this stage of proceed
ings, the facts must be viewed in the light most favorable
to Robbins. Ante, at 543, n. 2. The full force of Robbins’
complaint, however, is not quite captured in the Court’s re
strained account of his allegations. A more complete rendi
tion 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 regula
tion commanding Robbins to grant a new easement to make
up for BLM’s neglect in losing the first one. Robbins was
unwilling to capitulate to unilateral demands, but told Ves
sels he would negotiate with BLM when he moved to Wyo
ming. 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, testi
fied that from the very beginning, agency employees re
ferred to Robbins as “the rich SOB from Alabama [who] got
[the Ranch].” App. 121. Trouble started almost immedi
ately. Shortly after their first conversation, Vessels wrote
Robbins to ask permission to survey his land, presumably to
establish the contours of the easement. Robbins refused,

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believing there was no need for a survey until an agreement
had been reached. Vessels conducted the survey anyway,
and chuckled when he told Robbins of the trespass. CA10
App. 325–327. At their first face-to-face meeting in Wyo
ming, 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 toward 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 neigh
boring landowner, LaVonne Pennoyer. Leone knew Rob
bins 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. Pen
noyer 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 Pen
noyer revved her engine and drove her truck straight into
the horse Robbins was riding. Id., at 49; CA10 App. 331–
332, 676–681; 9 Record, Pl. Exh. 2, pp. 164–166; 10 id., Pl.
Exh. 35a, 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 de
clined 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 expe

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rience Robbins offered his guests, BLM employees followed
along in trucks, videotaping participants. The Government
suggests that this surveillance was a legitimate way to docu
ment instances when Robbins crossed onto federal land with
out permission. The suggestion, however, hardly explains
why, on one occasion, BLM employees videotaped several fe
male guests who were seeking privacy so they could relieve
themselves. CA10 App. 506–507.
As part of the campaign against Robbins, Parodi was in
structed to “look closer” for trespass violations, to “investi
gate 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 complaisant
they would be” about his infractions, but the record leaves
doubt. Ante, at 558. 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 experi
ence that people given authority and not being held in check
and not having solid convictions will run amuck and that [is]
what I saw happening.” Id., at 125. Eventually, Parodi
was moved to warn Robbins that, if he continued to defy
BLM officials, “there would be war, a long war and [BLM]
would outlast him and outspend him.” Id., at 132. Parodi
found BLM’s treatment of Robbins so disturbing that it be
came “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

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something out of the government,” Parodi said, but he saw
Robbins only “as a man standing up for his property rights.”
10 Record, Pl. Exh. 35C, at 41.
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 en
forcement actions. Indeed, BLM was not content with the
arrows in its own quiver. Robbins charged that BLM offi
cials 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 Af
fairs (BIA) manager to impound Robbins’ cattle, asserting
that he was “a bad character” and that “something need[ed]
to be done with [him].” CA10 App. 359. The manager re
jected the request, observing that the BIA had no problems
with Robbins. Ibid.
Even more disconcerting, there was sufficient evidence,
the District Court recognized, to support Robbins’ allegation
that BLM employees filed false criminal charges against him,
claiming that he forcibly interfered with a federal officer.
Federal prosecutors took up the cause, but Robbins was ac
quitted by a jury in less than 30 minutes.1 A news account
reported that the jurors “were appalled at the actions of the
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 Com
merce, Justice, and State, the Judiciary, and Related Agencies Appropria
tions 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 552 (“[T]he federal judge who presided at the trial did not think the
Government’s case thin enough to justify awarding attorney’s fees.”).
But, as Robbins notes, the trial court passed only on the prosecutor’s liti
gation position, not on whether the allegations of the BLM employees,
which prompted the prosecution, were made in bad faith. Brief for Re
spondent 7, n. 5.

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government,” one of them commenting that “Robbins could
not have been railroaded any worse . . . if he worked for the
Union Pacific.” Id., at 852.
BLM’s seven-year campaign of harassment had a devastat
ing impact on Robbins’ business. Robbins testified that in
a typical summer, the High Island Ranch would accommo
date 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 thou
sands 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 govern
ment action calculated to acquire private property coercively
and cost free, and measures taken in retaliation for the own
er’s resistance to an uncompensated taking. Even assuming
Robbins is correct about the Fifth Amendment, he may not
proceed unless he has a right to sue. To ground his claim
for relief, Robbins relies on Bivens, 403 U. S. 388.
II
“The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury.” Marbury v. Madison, 1
Cranch 137, 163 (1803). In Bivens, the Court drew upon
that venerable principle in holding that a victim of a Fourth
Amendment violation by federal officers has a claim for relief
in the form of money damages. “Historically,” the Court
observed, “damages have been regarded as the ordinary
remedy for an invasion of personal interests in liberty.” 403
U. S., at 395.
The Court’s decisions recognize that the reasoning under
lying 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 employ

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ment discrimination in violation of the equal protection com
ponent of the Fifth Amendment. “[U]nless [constitutional]
rights are to become merely precatory,” the Court stated,
“litigants who allege that their own constitutional rights
have been violated, and who at the same time have no effec
tive means other than the judiciary to enforce these rights,
must be able to invoke the existing jurisdiction of the courts
for . . . protection.” Id., at 242. Soon after Passman, the
Court applied Bivens again, recognizing a federal right of
action to gain damages for an Eighth Amendment violation.
Carlson v. Green, 446 U. S. 14 (1980).
Carlson announced two exceptions to Bivens’ rule. “The
first [applies] when defendants demonstrate special factors
counselling hesitation in the absence of affirmative action by
Congress.” 446 U. S., at 18 (quoting Bivens, 403 U. S., at
396). “The second [applies] when defendants show that Con
gress 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 em
ployee sought recovery for First Amendment violations al
leged to have occurred in his workplace. As a civil servant,
the plaintiff had recourse to “an elaborate, comprehensive
scheme” administered by the Civil Service Commission, in
which constitutional challenges were “fully cognizable.”
Id., at 385, 386. The Court declined to recognize a judicial
remedy, lest it interfere with Congress’ carefully calibrated
system. For similar reasons, in Schweiker v. Chilicky, 487
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 de
clined to extend Bivens. Ante, at 550. Neither was a suit against a fed
eral officer.

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U. S. 412, 414, 424–429 (1988), the Court held that the Social
Security Act’s scheme of administrative and judicial reme
dies left no void to be filled by a Bivens action. Likewise,
on two occasions, the Court concluded that “the unique disci
plinary structure of the Military Establishment” precluded
a Bivens action for harm to military personnel through activ
ity 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 prec
edent. See ante, at 568 (Thomas, J., concurring) (“Bivens
is a relic of the heady days in which this Court assumed
common-law powers to create causes of action.” (quoting
Correctional Services Corp. v. Malesko, 534 U. S. 61, 75
(2001) (Scalia, J., concurring))). But the Court has so far
adhered to Bivens’ core holding: Absent congressional com
mand 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.” Carl
son, 446 U. S., at 18.
III
A
The Court does not hold that Robbins’ Bivens suit is pre
cluded 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 alterna
tive remedy for the relentless torment he alleges. True,
Robbins may have had discrete remedies for particular in
stances of harassment. But, in these circumstances, piece
meal litigation, the Court acknowledges, cannot forestall
“death by a thousand cuts.” Ante, at 555 (quoting Brief for
Respondent 40). For plaintiffs in Robbins’ shoes, “it is dam
ages or nothing.” Bivens, 403 U. S., at 410 (Harlan, J., con
curring in judgment).

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Despite the Court’s awareness that Robbins lacks an effec
tive alternative remedy, it nevertheless bars his suit. The
Court finds, on the facts of this case, a special factor counsel
ing 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 ac
tions,” ante, at 562, with plaintiffs pressing claims “in every
sphere of legitimate governmental action affecting property
interests,” ante, at 561.
The “floodgates” argument the Court today embraces has
been rehearsed and rejected before. In Passman, the
Court of Appeals emphasized, as a reason counseling denial
of a Bivens remedy, the danger of “deluging federal courts
with [Fifth Amendment based employment discrimination]
claims.” 442 U. S., at 248 (internal quotation marks omit
ted). This Court disagreed, turning to Justice Harlan’s con
curring opinion in Bivens to explain why.
The only serious policy argument against recognizing a
right of action for Bivens, Justice Harlan observed, was the
risk of inundating courts with Fourth Amendment claims.
He found the argument unsatisfactory:
“[T]he question appears to be how Fourth Amendment
interests rank on a scale of social values compared with,
for example, the interests of stockholders defrauded
by misleading proxies. Judicial resources, I am well
aware, are increasingly scarce these days. Nonethe
less, when we automatically close the courthouse door
solely on this basis, we implicitly express a value judg
ment on the comparative importance of classes of legally
protected interests.” 403 U. S., at 410–411 (citation
omitted).
In attributing heavy weight to the f loodgates concern
pressed in this case, the Court today veers away from Justice
Harlan’s sound counsel.

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578 WILKIE v. ROBBINS
Opinion of Ginsburg, J.
B
In the Court’s view Robbins’ complaint poses an inordinate
risk of imposing on vigilant federal officers, and inundating
federal courts, for his pleading “fails to fit the [Court’s] prior
retaliation cases.” Ante, at 556. “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 legiti
mate”: “trying to induce [Robbins] to grant an easement for
public use.” Ante, at 556. Developing a legal test to deter
mine when federal officials have gone “too far,” ante, at 557,
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 562.
The Court’s assertion that the BLM officials acted with a
“perfectly legitimate” objective, ante, at 556, 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 ease
ment. But after Robbins refused to cover for the officials’
blunder, they resolved to drive him out of business.3 Even
3 Robbins agreed, the Court relates, “that the Bureau’s employees in
tended to convince Robbins to grant an easement.” Ante, at 556. In
support, the Court notes that Robbins posed this question: “[C]an govern
ment 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?” Ibid., n. 8 (quoting Brief for Respondent
21; alteration in original). Robbins’ descriptive words—“harass, punish,
and coerce”—are hardly synonyms for “convince.” Robbins has main
tained throughout that the officials’ motives were vindictive, a character
ization amply supported by the record. Indeed, the agents’ seven-year
campaign of harassment calls to mind W. H. Auden’s famous lines: “Their

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579 Cite as: 551 U. S. 537 (2007)
Opinion of Ginsburg, J.
if we allowed that the BLM employees had a permissible
objective throughout their harassment of Robbins, and also
that they pursued their goal through “legitimate tactics,”
ante, at 557,4 it would not follow that Robbins failed to state
a retaliation claim amenable to judicial resolution.
Impermissible retaliation may well involve lawful action
in service of legitimate objectives. For example, in Board
of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668 (1996),
this Court held that a county board of commissioners may
cross into unconstitutional territory if it fires a contractor
for speaking out against members of the board on matters
of public concern. The Court recognized that terminating
a contractor for public criticism of board practices might
promote legitimate governmental objectives (e. g., maintain
ing relationships of trust with those from whom services
are purchased). Id., at 674. The Court, furthermore, in
structed that even where the background law allows a gov
ernment agency to terminate a contractor at will, the agency
lacks carte blanche to do so in retaliation for constitutionally
protected conduct. Id., at 677.5 The same is true here:
cause, if they had one, is nothing to them now; They hate for hate’s sake.”
There Will Be No Peace, reprinted in W. H. Auden: Collected Poems 615
(E. Mendelson ed. 2007).
4 The Court observes that the Interior Board of Land Appeals (IBLA)
approved some of BLM’s enforcement actions against Robbins. Ante, at
545, 546, 558. 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 deci
sion.” Robbins v. Bureau of Land Management, 170 I. B. L. A. 219, 227
(2006). Accordingly, the IBLA refused to entertain Robbins’ contention
that BLM enforcement actions were “part of a pattern of activities
amounting to willful violations of civil, criminal, or constitutional law.”
Ibid.
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, Wa
baunsee 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.

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580 WILKIE v. ROBBINS
Opinion of Ginsburg, J.
BLM officials may have had the authority to cancel Robbins’
permits or penalize his trespasses, but they are not at liberty
to do so selectively, in retaliation for his exercise of a consti
tutional right.6
I therefore cannot join the Court in concluding that Rob
bins’ 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 556, Robbins’
suit can be resolved in familiar fashion. A court need only
ask whether Robbins engaged in constitutionally protected
conduct (resisting the surrender of his property sans com
pensation), and if so, whether that was the reason BLM
agents harassed him.7
C
The Court’s opinion is driven by the “fear” that a “Bivens
cure” for the retaliation Robbins experienced may be “worse
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 “dis
tinguis[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 560, 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 per
haps exposing themselves to other sanctions).
7 The Government, I recognize, should not be hampered in pursuing law
ful means to drive a hard bargain. See ante, at 558–560, n. 10. Trespass
ing, filing false criminal charges, and videotaping women seeking privacy
to relieve themselves, however, are not the tools of “hard bargaining.”
They have a closer relationship to the armed thug’s demand: “Your money
or your life.” By concentrating on the allegedly lawful actions the BLM
agents took (e. g., canceling a right-of-way), ibid., the Court gives a blood
less account of Robbins’ complaint.

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Cite as: 551 U. S. 537 (2007) 581
Opinion of Ginsburg, J.
than the disease.” Ante, at 561. This concern seems to me
exaggerated. Robbins’ suit is predicated upon the agents’
vindictive motive, and the presence of this element in his
claim minimizes the risk of making everyday bureaucratic
overreaching fare for constitutional litigation. See Olech,
528 U. S., at 566 (Breyer, J., concurring in result) (“In my
view, the presence of [vindictive action] in this case is suffi
cient 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 rem
edy [was] already available to redress injuries such as peti
tioner’s when they occur under color of state law.” 442
U. S., at 248. A similar side-glance could be cast here. Be
cause we have no reason to believe that state employees are
any more or less respectful of Fifth Amendment rights than
federal agents, § 1983 provides a controlled experiment. If
numerous Bivens claims would eventuate were courts to en
tertain claims like Robbins’, then courts should already have
encountered endeavors to mount Fifth Amendment Takings
Clause suits under § 1983. But the Court of Appeals, the
Solicitor General, and Robbins all agree that there are no
reported cases on charges of retaliation by state officials
against the exercise of Takings Clause rights. 433 F. 3d 755,
767 (CA10 2006); Brief for Petitioners 48; Brief for Respond
ent 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
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 575–576.

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582 WILKIE v. ROBBINS
Opinion of Ginsburg, J.
One can assume, arguendo, that, as the Court projects, an
unqualified judgment for Robbins could prompt “claims in
every sphere of legitimate governmental action affecting
property interests.” Ante, at 561. Nevertheless, shutting
the door to all plaintiffs, even those roughed up as badly as
Robbins, is a measure too extreme. Cf. Hein v. Freedom
From Religion Foundation, Inc., post, at 640, n. 1 (dissent
ing opinion) (“To the degree . . . claims are meritorious, fear
that there will be many of them does not provide a compel
ling reason . . . to keep them from being heard.”). There
are better ways to ensure that run-of-the-mill interactions
between citizens and their Government do not turn into
cases of constitutional right. Cf. Bivens, 403 U. S., at 410
(Harlan, J., concurring in judgment) (“I simply cannot
agree . . . that the possibility of frivolous claims . . . warrants
closing the courthouse doors to people in Bivens’ situation.
There are other ways, short of that, of coping with frivolous
lawsuits.” (internal quotation marks omitted)).
Sexual harassment jurisprudence is a helpful guide. Title
VII, the Court has held, does not provide a remedy for every
epithet or offensive remark. “For sexual harassment to be
actionable, it must be sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abu
sive working environment.” Meritor Savings Bank, FSB v.
Vinson, 477 U. S. 57, 67 (1986) (internal quotation marks and
brackets 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 employ
ees.” Ante, at 562. Discrete episodes of hard bargaining
that might be viewed as oppressive would not entitle a liti
gant to relief. But where a plaintiff could prove a pattern

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583 Cite as: 551 U. S. 537 (2007)
Opinion of Ginsburg, J.
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’ argu
ment that they are entitled to qualified immunity. In resolv
ing claims of official immunity on summary judgment, we ask
two questions. First, “[t]aken in the light most favorable to
the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” Saucier v.
Katz, 533 U. S. 194, 201 (2001). And, if so, was that right
clearly established, such that a reasonable officer would have
known that his conduct was unlawful? Id., at 201–202.10
The Takings Clause instructs that no “private property
[shall] be taken for public use, without just compensation.”
U. S. Const., Amdt. 5. Robbins argues that this provision
confers on him the right to insist upon compensation as a
condition of the taking of his property. He is surely correct.
Correlative to the right to be compensated for a taking is
the right to refuse to submit to a taking where no compensa
tion is in the offing. Cf. Dolan v. City of Tigard, 512 U. S.
374 (1994) (invalidating a permit condition that would have
9 My “emphasis on the extent and duration of the harm suffered by Rob
bins,” the Court asserts, indicates that under my approach, Robbins “could
not obtain relief without . . . satisfying an unspecified, and unworkable,
‘too much’ standard.” Ante, at 557–558, n. 9. My approach, however, is
no less specific nor more unworkable than the approach courts routinely
employ in Title VII harassment cases.
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).

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584 WILKIE v. ROBBINS
Opinion of Ginsburg, J.
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 re
fused, as was his constitutional right. At that point, BLM
might have sought to take Robbins’ property by eminent do
main (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 unneces
sarily penalize the exercise of constitutional rights. This
principle has been applied, most notably, to protect the free
doms guaranteed by the First Amendment. See, e. g., Um
behr, 518 U. S., at 674–675, 686 (freedom of speech); O’Hare
Truck Service, Inc. v. City of Northlake, 518 U. S. 712, 716–
720 (1996) (freedom of association); Sherbert v. Verner, 374
U. S. 398, 403–406 (1963) (freedom of religion). But it has
also been deployed to protect other constitutional guaran
tees, including the privilege against self-incrimination, Tur
ley, 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 Hos
pital v. Maricopa County, 415 U. S. 250, 254–262 (1974).
The principle should apply here too. The constitutional
guarantee of just compensation would be worthless if federal
agents were permitted to harass and punish landowners who
refuse to give up property without it. The Fifth Amend
ment, 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 resist
ance to uncompensated taking. Viewing the facts in the

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Opinion of Ginsburg, J.
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 Amend
ment rights runs afoul of the Constitution. The “dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Sau
cier, 533 U. S., at 202. As noted, all concede that there are
no reported cases recognizing a Fifth Amendment right to
be free from retaliation. However, it is inconceivable that
any reasonable official could have believed to be lawful the
pernicious harassment Robbins alleges. In the egregious
circumstances of this case, the text of the Takings Clause
and our retaliation jurisprudence provided the officers fair
warning that their behavior impermissibly burdened a con
stitutional right. See Hope v. Pelzer, 536 U. S. 730, 739–
741 (2002).
* * *
Thirty-six years ago, the Court created the Bivens rem
edy. In doing so, it ensured 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 562. But see supra, at 580, n. 6. The Bivens analog to
§ 1983, however, is hardly an obscure part of the Court’s ju
risprudence. If Congress wishes to codify and further de
fine the Bivens remedy, it may do so at anytime. Unless
and until Congress acts, however, the Court should not shy
away from the effort to ensure that bedrock constitutional
rights do not become “merely precatory.” Passman, 442
U. S., at 242.

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586 WILKIE v. ROBBINS
Opinion of Ginsburg, J.
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 Racketeer Influ
enced and Corrupt Organizations Act and therefore join Part III of the
Court’s opinion.