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No. 09-772

In the Supreme Court of the United States

WESTERN RADIO SERVICES COMPANY, ET AL., PETITIONERS

v.

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MICHAEL S. RAAB
KELSI BROWN CORKRAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Petitioners, who operate communications facilities on land managed by the United States Forest Service, brought suit alleging that the Forest Service withheld action on a special use application for "side-hill" anten nae and failed to respond to complaints lodged against other lessees, in violation of the Administrative Proce dure Act (APA), 5 U.S.C. 701 et seq. Petitioners also sued six former and present Forest Service employees under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Petitioners alleged that the employees conspired to delay action on the application and failed to enforce the applicable Site Plan against other lessees in retaliation for petitioners' previous litigation against the Forest Service, in viola tion of the First Amendment. They also alleged that the employees treated them less favorably than other les sees, in violation of the Fifth Amendment. The question presented is:

Whether the court of appeals erred in declining to extend Bivens remedies in this case on the ground that the APA provides an adequate, alternative remedy for the agency's alleged delays and inaction.

In the Supreme Court of the United States

No. 09-772

WESTERN RADIO SERVICES COMPANY, ET AL.,

PETITIONERS

v.

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-22) is reported at 578 F.3d 1116. The opinion of the district court (Pet. App. 23-36) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 21, 2009. A petition for rehearing was denied on October 5, 2009 (Pet. App. 37). The petition for a writ of certiorari was filed on December 29, 2009. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner Western Radio Services Company is an Oregon corporation solely owned by petitioner Richard L. Oberdorfer (collectively, Western Radio). Gray Butte is an 80-acre area within the Ochoco National Forest in Oregon. The United States Forest Service manages that area and leases various sites to electronic communi cations companies, including Western Radio, Slater Communications and Electronics, and Day Wireless Sys tems. Each lease agreement incorporates the terms of the Gray Butte Electronic Site Management Plan (Site Plan), which "establish[es] a guide for the land manager to base decisions concerning the development of the site in conformance with" stated environmental objectives. Pet. App. 3, 24-25 (brackets in original).

Western Radio first constructed radio towers on Gray Butte in 1978 and, in later years, has filed special use applications with the Forest Service to expand its capacity. In 1991, the company requested authorization to install two antennae "to the side-hill" of their leased property. The Forest Service did not respond to the application and, in October 1998, Western Radio submit ted another request, again seeking approval for two side-hill antennae. In December 1998, the Forest Ser vice denied the application. Western Radio appealed and the Forest Service withdrew its decision. Over the next eight years, the Forest Service requested addi tional documents and clarifications but did not take ac tion on the application. In January 2006 (while this case was pending in the district court), Western Radio sub mitted a revised application seeking permission to con struct four antennae and, after preparing an environ mental assessment, the Forest Service issued a decision allowing the company to build two of the four proposed antennae. Pet. App. 3-6, 24-26. None of the individual respondents were involved in Western Radio's requests prior to 2002. Id. at 32 n.4.

Over the years, Western Radio also complained to the Forest Service about other Gray Butte lessees' fail ure to comply with the Site Plan and requested that the Forest Service enforce strict compliance. In August 2000, for example, Western Radio informed a Forest Service employee that Slater Communications was not in compliance with the Site Plan and that it suspected other lessees were also noncompliant, but that absent inspection (which the lessees would not permit) it could not specify the nature of the violations. Western Radio requested permission to participate in the agency's site inspection. In 2002, the Forest Service inspected the sites on its own and concluded that only minor deficien cies existed at the other lessee sites. Pet. App. 4-5. Again, none of the individual respondents were involved prior to 2002. Id. at 32 n.4.

Beginning in 1986, Western Radio pursued several administrative appeals challenging other Forest Service decisions. And, in 1993, petitioners filed several law suits contesting the agency's permitting and leasing de cisions. Pet. App. 3; C.A. E.R. 161.

2. In 2004, petitioners filed this suit under the Ad ministrative Procedure Act (APA), 5 U.S.C. 701 et seq., and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the Forest Service and six of its current and former employ ees. Pet. App. 2, 24. Petitioners' APA claims alleged that the Forest Service unlawfully withheld and unrea sonably delayed action on the side-hill antennae applica tion and on the complaints lodged against other Gray Butte lessees, and that such actions were arbitrary, ca pricious and contrary to law. C.A. E.R. 32-34. The Bivens claims alleged that from 2002 until the present, the individual Forest Service employee-respondents conspired to intentionally delay action on the side-hill antennae application, failed to stop other lessees' non compliance with the Site Plan, and refused to allow Western Radio to conduct site inspections of the other facilities-and that those actions were undertaken in retaliation for petitioners' previous litigation against the Forest Service, in violation of the First Amendment. Id. at 31-32. They also alleged that respondents violated the Fifth Amendment because they treated Western Radio less favorably than other lessees without a ratio nal basis. Id. at 34-35.

Respondents moved for summary judgment. The district court granted summary judgment on the APA claims. Pet. App. 35-36. As noted above, while the liti gation was pending in the district court, the Forest Ser vice approved, in part, Western Radio's side-hill anten nae application. The court explained that if petitioners wished to challenge that decision, they would need to exhaust their administrative remedies consistent with the Forest Service regulations, and it dismissed the APA claims as moot. Id . at 36.

On the constitutional claims, the court concluded that "the APA provides an alternative and comprehensive remedy" and because petitioners' complaints "of delay and inaction on the part of [respondents] in processing Western Radio's application for sidehill antennas, [are] complaints that the APA was specifically crafted to re dress," no implied Bivens remedy was available. Pet. App. 32-33. Moreover, the court found that, on the mer its, petitioners presented no evidence actually suggest ing retaliation on the part of the individual respondents, or suggesting that the respondents treated Western Radio any differently than its competitors or did so without a rational basis. Id. at 34.

3. Petitioners appealed only with respect to the Biv ens claims. Pet. App. 6. At the outset, the court of ap peals observed that no Bivens remedy was available against the Forest Service. Ibid. (citing FDIC v. Meyer, 510 U.S. 471, 484 (1994) (declining to extend Bivens to claims against federal agencies)). As to the individual Forest Service employees, the court applied the two- step analysis set forth in Wilkie v. Robbins, 551 U.S. 537, 550 (2007), and found the first step dispositive. As the court explained, the first question is "whether the existence of 'any alternative, existing process' available to [petitioners], or other indication of Congressional in tent, raises the inference that Congress 'expected the Judiciary to stay its Bivens hand.'" Pet. App. 13-14 (quoting Wilkie, 551 U.S. at 550, 554). The court ob served that "Wilkie itself" strongly suggested that the APA constitutes such a process; just as the ranch owner in Wilkie "had an adequate remedy for the 'unfavorable agency actions,' because, '[f]or each [such] claim, admin istrative review was available, subject to ultimate judi cial review under the APA,'" id. at 14 (brackets in origi nal) (quoting Wilkie, 551 U.S. at 551-552), so too for peti tioners' claims "based on agency actions and inactions." Ibid. This Court moved on to step two in Wilkie, ex plained the court, only because of the "patchwork" of remedies available for the variety of non-administrative claims alleged in that case. Ibid.

The court of appeals then independently concluded that the APA is, in fact, an adequate alternative remedy: it is a comprehensive remedial scheme for review of final agency action, authorizing a court to, inter alia, "compel agency action unlawfully withheld or unreasonably de layed" and "hold unlawful and set aside agency action * * * found to be * * * contrary to constitutional right, power, privilege, or immunity." Pet. App. 15 (quoting 5 U.S.C. 706(1)-(2)). The court also considered and rejected each of petitioners' arguments to the con trary. Id. at 16-22. In the end, the court held that be cause petitioners' "claims against the individual [respon dents] are based on Forest Service actions or inactions, * * * the remedies available to [petitioners] under the APA constitute an 'alternative, existing process' that 'amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding rem edy in damages.'" Id. at 22 (quoting Wilkie, 551 U.S. at 550). The court declined to decide "whether a Bivens right of action is applicable to a claim alleging a violation of the First Amendment" in any case. Ibid.

ARGUMENT

The court of appeals' decision is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.

1. In Bivens v. Six Unknown Named Agents of Fed eral Bureau of Narcotics, 403 U.S. 388 (1971), this Court recognized a cause of action for damages against federal law-enforcement agents who allegedly violated the plain tiff's Fourth Amendment rights. The Court's more re cent decisions, however, "have responded cautiously to suggestions that Bivens remedies be extended into new contexts." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68-69 (2001) (quoting Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)); see Wilkie v. Robbins, 551 U.S. 537, 550 (2007) ("[I]n most instances [this Court] has found a Bivens remedy unjustified."). This Court has emphasized that "any freestanding damages remedy for a claimed constitutional violation" is "not an automatic entitlement." Wilkie, 551 U.S. at 550. To the contrary, when "the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration," this Court has not created additional remedies under Bivens. Schweiker, 487 U.S. at 423.

In Wilkie, the Court set forth a two-step inquiry to decide whether to extend a Bivens remedy to new con stitutional interests and contexts. 551 U.S. at 550. The first question is "whether any alternative, existing pro cess for protecting the [plaintiff's] interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in dam ages." Ibid. If so, the court should "stay its Bivens hand." Id. at 554. If there is no such adequate, alterna tive remedy, however, a Bivens action may still be inap propriate if "special factors counsel[] hesitation." Id. at 550.

a. The court of appeals correctly determined, at step one of the inquiry, that petitioners have an alternative, adequate remedy for relief under the APA that fore closes an independent Bivens remedy in this case. Pet. App. 13-22. As the court explained (id. at 14-15), the APA expressly declares itself to be a comprehensive remedial scheme for claims of agency action or inaction. See 5 U.S.C. 702. Congress has provided through the APA the means of raising challenges, including constitu tional challenges, to the type of agency actions at issue here. Section 706 expressly authorizes a reviewing court to "compel agency action unlawfully withheld or unrea sonably delayed" and to "hold unlawful and set aside agency action, findings, and conclusions found to be * * * (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] (B) con trary to constitutional right, power, privilege, or immu nity." 5 U.S.C. 706(1)-(2).

The court of appeals' decision is consistent with this Court's decision in Wilkie. In that case, the constitu tional allegations were premised on actions allegedly taken by employees of the Bureau of Land Management (BLM) to extract an easement from the landowner plain tiff. 551 U.S. at 542-547. As alleged by the plaintiff, the offensive actions taken by the BLM employees were myriad; some were prosecutorial in nature, some sounded in tort, some were conventional agency actions, and some difficult to categorize. Id. at 551-553. With respect to those properly categorized as conventional administrative actions, the Court recognized that for each claim "administrative review was available, subject to ultimate judicial review under the APA." Id. at 552. It was only because of the "patchwork" of other reme dies that the plaintiff would have to pursue in a variety of forums that the Court had difficulty inferring con gressional intent to preclude a Bivens action, requiring it to proceed to the second step of the analysis. Even on those facts, however, the Court still found "no intuitively meritorious case for recognizing a new constitutional cause of action." Id. at 554. A fair reading of the Court's analysis supports what the court of appeals here held: where the only allegations can all be characterized as instances of "conventional agency action," id. at 552, administrative review subject to judicial review under the APA provides an adequate, alternative remedy fore closing recognition of an independent Bivens remedy.

In this case all of petitioners' claims may be ade quately adjudicated under the APA. As the court of ap peals recognized, petitioners did "not dispute that it has alternative remedies under the APA; it did, after all, bring APA claims against the Forest Service in this case." Pet. App. 18. Accordingly, the court of appeals correctly held that a Bivens remedy was foreclosed.

b. Petitioners rehash arguments made and properly rejected by the court of appeals below. Pet. 9-15. Those arguments lack merit and do not warrant this Court's review.

First, petitioners contend (Pet. 9-12) that the APA alternative is not an adequate substitute because it does not provide for monetary (or punitive) damages, it does not permit claims against individuals, and it does not provide a right to a jury trial. But, as the court of ap peals held, alternative "remedial schemes lacking such features may be adequate alternatives, provided that the absence of such procedural protections was not inadver tent on the part of Congress." Pet. App. 16 (citing Chilicky, 487 U.S. at 424-425). In Chilicky, the Court declined to imply a Bivens remedy for alleged due pro cess violations by Social Security officials, even though the review scheme provided by the Social Security Act offered no possibility of damages. 487 U.S. at 423-425. The Court explained that "[w]hen the design of a Gov ernment program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration," it is inappropriate for a court to afford "additional Bivens remedies." Ibid. Petition ers make no attempt to suggest that Congress "inadver tent[ly]" neglected to provide for monetary damages for alleged constitutional violations arising from reviewable agency action.

Second, petitioners contend (Pet. 12-13) that the APA cannot be read as expressing Congress's intent to preclude a Bivens remedy because the APA predated the Bivens decision and when Congress amended the APA post-Bivens it did not address that decision. For this argument, petitioners rely on Carlson v. Green, 446 U.S. 14 (1980), but as the court of appeals explained, the "congressional comments accompanying" the amend ment to the Federal Tort Claims Act (FTCA) at issue in that case "made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action." Pet. App. 20 (quoting Green, 446 U.S. at 19-20). Whereas the legislative history there "expressly stat[ed] that the FTCA 'should be viewed as a counterpart to the Bivens case,'" ibid. (quoting Green, 446 U.S. at 20), peti tioners can point to no such evidence of congressional intent with respect to the APA. This Court has previ ously declined to create a Bivens remedy where, as here, Congress has given no affirmative indication that it in tended the statutory cause of action only as a comple ment to Bivens. See Chilicky, 487 U.S. at 425-426; Bush v. Lucas, 462 U.S. 367, 378 (1983).

Finally, petitioners argue (Pet. 14-15) that, like the plaintiff in Wilkie, they have been subject to a "pattern" of retaliation and, unlike the plaintiff in Wilkie, that re taliation was premised on an improper and unconstitu tional motive. Petitioners confuse the "patchwork" of claims in Wilkie that prompted the Court to look beyond the APA alternative remedy to the special factors at issue, with the "pattern" of retaliation they allege in this case. The Wilkie Court did not proceed to the second step of the inquiry because there was a "pattern" of ad ministrative actions that needed redress; it did so be cause the actions were both administrative and non-ad ministrative and, as a result, the Court could not infer that Congress intended the "patchwork" of remedies in different forums to substitute for a Bivens remedy. Where the APA is an adequate, alternative remedy for all of petitioners' claims (whether or not they constitute a "pattern"), there is "no need to 'weigh[] reasons for and against the creation of a new cause of action.'" Pet. App. 21-22 (brackets in original) (quoting Wilkie, 551 U.S. at 554).

2. Petitioners have not attempted to demonstrate any circuit conflict on this issue, and we are aware of none. Indeed, several courts of appeals have held, in accord with the decision below, that a plaintiff's right to judicial review under the APA precluded a Bivens rem edy. See, e.g., Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080, 1084 (8th Cir. 2005) (holding that "the exis tence of a right to judicial review under the APA is suffi cient to preclude a Bivens action"), cert. denied, 547 U.S. 1110 (2006); Miller v. United States Dep't of Agric. Farm Servs. Agency, 143 F.3d 1413, 1416 (11th Cir. 1998) ("[T]he existence of a right to judicial review un der the APA is, alone, sufficient to preclude * * * a Bivens action."); cf. Munsell v. Department of Agric., 509 F.3d 572, 589-591 (D.C. Cir. 2007) (suggesting it might be appropriate to recognize a Bivens remedy where the alleged unconstitutional conduct drove the plaintiff from the regulated industry rendering APA relief unavailable, but declining to decide the issue).

This case is also a poor vehicle for review of the ques tion presented because the district court has already determined that petitioners failed to present sufficient evidence on their Bivens claims to survive summary judgment. See Pet. App. 34 (concluding that petitioners "present no evidence to suggest retaliation, malice, or conspiratorial acts on the part of individual [respon dents]," and that petitioners "present no specific evi dence to suggest that [respondents] * * * treated Western Radio differently from its competitors without rational basis"). Thus, regardless of whether a Bivens remedy exists for petitioners' claims, respondents would still be entitled to summary judgment on the merits. In these circumstances, further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
MICHAEL S. RAAB
KELSI BROWN CORKRAN
Attorneys

APRIL 2010