Skip to content

Laurence H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins, Cato Sup. Ct. Rev., 2006-2007, at 23.

Abstract: In this essay, I consider the U.S. Supreme Court's recent decision in Wilkie v. Robbins, 127 S.Ct. 2588 (2007), holding that no federal action for damages may be brought by a cattle rancher in Wyoming against officers of the U.S. Bureau of Land Management for destroying his cattle and dude ranch business in deliberate retaliation for his refusal to give the Bureau an easement over his land without compensation by the Bureau and without its invocation of the federal power of eminent domain. The Court conceded that the rancher had no effective federal remedy other than such a damages action against the cumulative impact of the sequence of retaliatory actions taken by the federal officials and that the only remedies available to the rancher - suits under state tort law and under the federal Administrative Procedure Act - although potentially capable of redressing some of the individual actions taken by BLM officers against the rancher, could not have effectively prevented or redressed the "death by a thousand cuts" brought about by those officers. It conceded as well that Congress had neither precluded the judicial recognition of a federal cause of action for damages nor provided the kind of substitute that would displace such a cause of action under the doctrine of Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). The Court reasons, however, that such a cause of action would present the federal judiciary with line-drawing difficulties that might not successfully prevent a flood of litigation and that, on balance, the case for recognizing such a cause of action was not established. This essay argues that this analysis represents an unacknowledged retreat from a well-established line of precedent under Bivens and that the analysis is unpersuasive even on its own terms, noting that the predicted flood of litigation had not materialized under the 140-year-old federal statute, 42 U.S.C. §1983, that created a cause of action for damages against conduct identical to that of the BLM agents in this case if committed by state rather than federal agents. The essay explores the incentives created by Wilkie v. Robbins for intentional circumvention of the Takings and Just Compensation Clauses by federal agents and addresses the dangers thereby created for any meaningful protection of private property sought by the Federal Government, as well as the dangers created for the meaningful protection of other constitutional rights against deliberate erosion by federal agents. Finally, the essay argues that the Bivens issue should not have been reached at all by the Supreme Court because it was demonstrably beyond the appellate jurisdiction of that Court and of the Court of Appeals in this interlocutory pre-trial appeal from a lower court ruling denying qualified immunity to the defendant officers even on the premise that their conduct, if in clear violation of established federal constitutional rights, would have given rise to damages under the Bivens doctrine.