Robbins v. Wilkie
| Decision Date | 10 January 2006 |
| Docket Number | No. 04-8016.,04-8016. |
| Citation | 433 F.3d 755 |
| Parties | Harvey Frank ROBBINS, Plaintiff-Appellee, v. Charles WILKIE, Darrell Barnes, Teryl Shryack, Michael Miller, Gene Leone, David Wallace, Defendants-Appellants. Pacific Legal Foundation, New Mexico Cattle Growers Association, Washington Farm Bureau, Idaho Farm Bureau, Idaho County Farm Bureau, Owyhee County Farm Bureau, Washington State Grange, and New Mexico Federal Lands Council, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward Himmelfarb, Appellate Staff, Civil Division, Department of Justice (Peter D. Keisler, Assistant Attorney General, John W. Suthers, United States Attorney, District of Colorado, Barbara L. Herwig, Civil Division, Department of Justice, with him on the briefs), Washington, D.C., for Defendants-Appellants.
Marc R. Stimpert (Karen Budd-Falen, with him on the briefs), Budd-Falen Law Offices, P.C., Cheyenne, WY, for Plaintiff-Appellee.
Gregory T. Broderick, Counsel of Record, Meriem L. Hubbard, Of Counsel, J. David Breemer, Of Counsel, Pacific Legal Foundation, Sacramento, CA, filed an amici curiae brief for Pacific Legal Foundation, New Mexico Cattle Growers Association, Washington Farm Bureau, Idaho Farm Bureau, Idaho County Farm Bureau, Owyhee County Farm Bureau, Washington State Grange, and New Mexico Federal Lands Council.
Before KELLY, HENRY and MURPHY, Circuit Judges.
Plaintiff-Appellee Harvey Frank Robbins filed suit pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Robbins alleges employees of the Bureau of Land Management ("BLM"), including Defendants-Appellants Charles Wilkie, Darrell Barnes, Teryl Shryack, Michael Miller, Gene Leone, and David Wallace, attempted to extort a right-of-way across Robbins' property in violation of RICO and the Fifth Amendment. Defendants filed a motion for summary judgment on qualified immunity. The district court denied the motion concluding, inter alia, that Robbins had sufficiently alleged violations of his clearly established rights under RICO and the Fifth Amendment. Defendants appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the right to be free from retaliation for the exercise of Fifth Amendment rights is clearly established and Defendants' alleged wrongful use of otherwise lawful authority to obtain a right-of-way from Robbins violates clearly established law under the Hobbs Act and Wyo. Stat. Ann. § 6-2-402, we affirm.
Robbins owns High Island Ranch in Hot Springs County, Wyoming where he engages in cattle ranching and operates a commercial guest ranch. Robbins purchased the ranch from George Nelson who had granted to BLM a non-exclusive access easement along a road on the ranch. BLM failed to record the easement, however, and Robbins had no notice of it when he purchased and recorded his interest in the ranch. Thus, under Wyoming's recording statute, Robbins took ownership of the ranch unencumbered by the easement. Robbins also had various BLM preference rights, livestock grazing permits, and a special-recreation use permit allowing him to use federal lands adjacent to his property.
When BLM learned its easement had been extinguished, it contacted Robbins to discuss obtaining a right-of-way across the ranch. Robbins refused. Robbins alleges that in retaliation for his refusal to grant the right-of-way, Defendants attempted to extort the right-of-way from him. Specifically, Robbins alleges Defendants refused to maintain the road providing access to his property; threatened to cancel, and then cancelled, his right-of-way across federal lands; stated they would "bury Frank Robbins"; cancelled his special recreation use permit and grazing privileges; brought unfounded criminal charges against him; trespassed on his property; and interfered with his guest cattle drives.
Robbins brought claims pursuant to Bivens and RICO. Defendants filed a motion to dismiss both claims. The district court granted the motion, reasoning that Robbins had failed to adequately plead damages under RICO, and that the Administrative Procedures Act ("APA") and Federal Tort Claims Act ("FTCA") were alternative, equally effective remedies precluding Robbins' Bivens claim. This court reversed. Robbins v. Wilkie, 300 F.3d 1208 (10th Cir.2002) (hereinafter Robbins I). We held that damages under RICO need not be pled with particularity. Id. at 1211. Moreover, the APA and FTCA did not preclude Robbins' Bivens claims because the APA does not provide a remedy when an official's intentional acts unrelated to agency action violate a party's constitutional rights, and the FTCA is a separate and distinct remedy from Bivens. Id. at 1212-13.
Subsequently, Defendants filed a second motion to dismiss on the grounds of qualified immunity. The district court granted the motion in part and denied it in part. See generally Robbins v. Wilkie, 252 F.Supp.2d 1286 (D.Wyo.2003). The district court determined Robbins had sufficiently alleged violations of his clearly established statutory rights under RICO and constitutional right to exclude others from his property under the Fifth Amendment. Id. at 1294-95, 1301-02. The district court dismissed Robbins' Bivens claims for malicious prosecution under the Fourth Amendment and procedural and substantive due process under the Fifth and Fourteenth Amendments. Id. at 1298-1301. Defendants did not appeal this order.
Defendants then filed a motion for summary judgment on qualified immunity. Relevant to this appeal, Defendants argued there was not a clearly established constitutional right to exclude others from one's property, and that they could not be held liable under RICO for actions authorized by BLM regulations because those actions are not "wrongful." The district court denied summary judgment on both grounds. With regard to Robbins' Bivens claim, the district court concluded Robbins had a clearly established right to be free from retaliation for exercising his right to exclude others from his property under the Fifth Amendment. Further, the district court determined Robbins had submitted sufficient evidence to support his complaint and Defendants failed to establish there were no issues of material fact. As to Robbins' RICO claim, the district court agreed that predicate acts under RICO must be otherwise wrongful to be actionable. The district court concluded, however, that actions taken by Defendants pursuant to BLM regulations can be wrongful if done with the intent of extorting. Because the district court determined there was an issue of material fact regarding Defendants' motive, summary judgment was denied.
As a preliminary matter, this court ordered the parties to brief the appealability of the district court's order denying summary judgment. This court has appellate jurisdiction over "final decisions" of district courts. 28 U.S.C. § 1291. Under the "collateral order" doctrine, however, some district court orders are considered "final" even though they are entered before a case has ended. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). One such collateral order permitting interlocutory appeal is a denial of qualified immunity. Mitchell, 472 U.S. at 530, 105 S.Ct. 2806. A denial of qualified immunity is only immediately appealable, however, to the extent the district court's decision turns on an abstract issue of law. Id. at 530, 105 S.Ct. 2806; Johnson v. Jones, 515 U.S. 304, 313-14, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Thus, an appellate court may examine on interlocutory appeal the purely legal question of whether the facts alleged by plaintiff support a claim of violation of clearly established law. Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. 2806. An appellate court may not, however, review questions of evidentiary sufficiency on interlocutory appeal. Therefore, a portion of a district court order denying qualified immunity is not immediately appealable insofar as the order determines plaintiff's claims are supported by sufficient evidence in the record or disputed issues of material fact exist which preclude summary judgment. Johnson, 515 U.S. at 313, 115 S.Ct. 2151; Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir.1997).
The district court's denial of qualified immunity in the present case turned on both issues of abstract law and evidentiary sufficiency. The district court determined Robbins had submitted sufficient evidence to support his Bivens claim and there was a disputed issue of material fact regarding Defendants' motive precluding summary judgment on Robbins' RICO claim. We do not have jurisdiction to examine these determinations of evidentiary sufficiency on interlocutory appeal. Johnson, 515 U.S. at 319-20, 115 S.Ct. 2151; Foote, 118 F.3d at 1422. The district court, however, also concluded Robbins sufficiently alleged a violation of his clearly established Fifth Amendment right, and the wrongful use of otherwise lawful authority violates clearly established law under RICO. These abstract issues of law regarding whether a particular law was clearly established are immediately appealable. Mitchell, 472 U.S. at 530, 105 S.Ct. 2806; Foote, 118 F.3d at 1422.
Robbins also contends Defendants' failure to appeal the district court's order denying dismissal on qualified immunity precludes Defendants from appealing an order denying summary judgment on the same qualified immunity issues. Robbins reasons that allowing Defendants to appeal a second denial of qualified immunity after failing to appeal the first denial would be an end-run around...
To continue reading
Request your trial
-
Mocek v. City of Albuquerque
...traditionally applies to subsequent motions which are premised on the same standard of review.” City MTD at 7 (citing Robbins v. Wilkie, 433 F.3d 755, 765 (10th Cir.2006)). They further contend that none of the exceptions to the application of the doctrine are applicable here, because: (i) ......
-
U.S. v. Vigil
...lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act." Robbins v. Wilkie, 433 F.3d 755, 769 (10th Cir.2006). On the other hand, government officials acting zealously within their statutory powers do not violate the Hobbs Act mer......
-
Wilkie v. Robbins
...it is “chargeable under [Wyoming] law and punishable by imprisonment for more than one year,” 18 U.S.C. § 1961(1)(A). Pp. 2604 – 2608. 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......
-
Kerns v. Bd. Of Comm'rs Of Bernalillo County
...needs to know what section of the Constitution his actions violate; he need only know that what he did was unlawful. In Robbins v. Wilkie, 433 F.3d 755 (10th Cir.2006), the defendants argued they were entitled to qualified immunity because there was no authority specifically recognizing the......