June 25, 2007
Wilkie v. Robbins
Posted by David Zaring

The Supreme Court today declined to permit citizens to file claims against individual government officials or conspiracies of the same for retaliating against them for exercising their property rights.  Ever since Black, Cheffins, and Klausner showed just how rare individual liability for outside corporate directors could be (they say it requires a "perfect storm" combination of insolvency, quasi-fraud, and clear links between the wealth of the outside directors and their conduct), I've been thinking about comparative personal liability for government officials.  When can you go after David Addington's assets because you're angry about what he's been up to in prosecuting the war on terror?

It seems to me that it takes a scandal to make a high level official pay a personal price for something that happened while they were on the job.  Criminal liability is rare, and the Court just closed the door on yet another possible form of individual civil liability: the Bivens retaliation claim.  Justice Souter's policy oriented analysis notes that there's a lot of ways to grieve government officials without making a federal case about it, and underlying his opinion must be some fear about what creating a constitutional retaliation claim might do ("a Bivens action to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations").  As any employment lawyer will tell you, retaliation rights are massive grants of the ability to litigate, and, especially, the ability to repeat litigate.  The Court also turned away a RICO extortion claim, concluding that government officials cannot commit such crimes if the goal is directed to the benefit of the government, rather than to the individual.

It's yet another example of the difficulty of getting money out of individual government officials' pockets for controversial, even individually targeted, policy decisions.  And so it seems to me more evidence that individual sanctions for government officials - perhaps appropriately - usually come out of court instead of within it.

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