2018

Here’s the latest in a case we’ve been following. In Alimanestianu v. United States, No. 17-1667 (May 7, 2018), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ ruling rejecting takings liability for the government wiping out a money judgment in favor of terrorism victims against the Libyan government.

Libyan terrorists blew up a plane, and plaintiffs, the survivors of one of the victims, sued Libya and obtained a $1.3 billion judgment in U.S. District Court. Libya appealed and before the appeal was resolved, the U.S. government settled all claims with Libya and vacated the judgment. The settlement with Libya referred claims to a settlement commission, which awarded plaintiffs $10 million. Plaintiffs sued the U.S. for the difference.

The CFC held there was no Penn Central taking because the plaintiffs had no reasonable expectation for any recovery greater than what they got from…

Continue Reading Federal Circuit: Restoration Of Foreign Govt’s Sovereign Immunity For Terrorist Acts Isn’t A Physical Taking Of Victim’s Money Judgment

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The main point we’re trying to make in the amici brief we are filing today on behalf of Citizens’ Alliance for Property Rights Legal Fund in Knick v. Township of Scott, No. 17-647 (cert. granted Mar. 5, 2018), is that the average property owner simply cannot fathom why—if a state or local government has taken property in violation of the Fifth Amendment—he cannot bring a takings claim in federal court until he has first pursued and lost an inverse condemnation claim in state court.

Other cases arising under the Constitution get the keys to the federal courthouse door, no questions asked. But not takings. 

Yes, this is the case in which the “exhaustion of state remedies” requirement from Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) is finally being directly reviewed. The last time the Supreme Court considered Williamson County in an argued case was…

Continue Reading Our Knick Amicus Brief: Monkey Selfies Can Get To Federal Court, But Not Fifth Amendment Takings?

Here’s the Petitioner’s Brief on the Merits in Knick v. Township of Scott, No. 17-647, the case in which the Supreme Court is being asked to revisit our old nemesis, Williamson County‘s “state exhaustion” requirement, a doctrine which tells takings plaintiffs that they cannot press a takings claim against state or local governments until the owner has pursued and lost an inverse condemnation claim in state court.

More on the background of the case (we dubbed it “The Night of the Living Zombie Zoning Inspector” case) here.

Here’s a summary of the brief’s argument:

The jurisdictional pitfalls created by the state litigation requirement are sufficient to condemn the rule as an unworkable and unacceptable ripeness concept. But the doctrine is also deeply flawed at a theoretical level because it rests on an incorrect view of the role of the Just Compensation Clause in takings litigation. Contrary to…

Continue Reading Knick Brief On The Merits: Time To Ditch Williamson County‘s State Exhaustion Requirement

Recently, Pennsylvania property owners filed two cert petitions (download here and here) asking the U.S. Supreme Court to review this question:

Whether the Hazardous Liquid Pipeline Safety Act (HLPSA)1 preempts the Pennsylvania Public Utility Commission’s (PUC) jurisdiction to issue Certificates of Public Convenience resulting in eminent domain power when the HLPSA states it has exclusive jurisdiction, and when the PUC specifically states it does not have jurisdiction.

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1. Also commonly referred to as the Pipeline Safety Act of 1979 (PSA).

The crux of the argument is that the Pennsylvania PUC and courts were preempted by a federal statute from accepting Sunoco’s assertion that its pipeline (which is to run from Ohio to Delaware via the petitioners’ Pennsylvania properties) is purely an intrastate pipeline, and not an interstate pipeline as defined in the statute:

Sunoco Pipeline (hereinafter “Sunoco”) seeks to build, and is currently building, an interstate…

Continue Reading New Cert Petitions: Can Pennsylvania Redefine What Counts As An “Interstate” Pipeline Under Federal Law?

You have about a week to reserve your tickets for the exclusive Honolulu screening of “Little Pink House,” the feature film about the Kelo v. City of New London case,  scheduled for June 11, 2018:

Two key dates:

  • June 4, 2018: This is the deadline to buy your ticket. The way this works is that if a critical mass of tickets are presold, the screening is a go. If for some reason not enough tickets are sold by June 4, you get a refund. No lose. So buy your ticket here, right now.
  • June 11, 2018: The date of the screening. It will start at 6:30pm, at the Consolidated Theatres Kahala 8 (convenient, plus plenty of parking). Easy. 

We’ve seen the film. It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course).

If you know…

Continue Reading Tickets For Honolulu Screening Of “Little Pink House” Still Available

Here’s the latest in the Houston flood cases against the federal government asserting inverse condemnation, which we’ve been following. 

In this Opinion and Order, the Court of Federal Claims (Judge Lettow) rejected the Government’s motion to dismiss, deferring it until trial. If you want a quick rundown of the case, the procedures, and the claims, you can’t do better than the order. It also sets out the Arkansas Game test established by the Supreme Court:

To establish a viable takings claim, a plaintiff must prove two things. First, he or she must show that he or she has “a property interest for purposes of the Fifth Amendment.” Members of the Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing Conti v. United States, 291 F.3d 1334, 1339 (Fed. Cir. 2002)); Wyatt v. United States, 271 F.3d 1090, 1096…

Continue Reading The Latest In The Houston Flood Cases: CFC Rejects Gov’t’s Motion To Dismiss

Jeff Benedict, author of “Little Pink House,” the book about the Kelo v. New London eminent domain debacle (and now a movie) has made a video (at the still-vacant Fort Trumbull site), and written an op-ed, arguing that the land should be conveyed back to its former owners, including Ms. Kelo:

Here’s the rub. Thirteen years after the Kelo decision, after all the condemning and evicting and bulldozing, nothing has been built on the land that was taken. Basically, an entire neighborhood was erased in vain. Meantime, all those vacant lots have become New London’s scarlet letter.

Thirteen years of inertia is long enough. For the sake of all parties – the city, the state, and the residents who were displaced – it’s time to turn the page and write an epilogue with a far more redeeming outcome.

….

But before the city can expect…

Continue Reading “Little Pink House” Author: Time To Give The Land Taken By Eminent Domain Back To Kelo And Other Former Owners

The Seventh Circuit’s opinion in New West, L.P. v. City of Joliet, No. 17-2865 (May 23, 2018) is short — 4 1/2 pages — and is written in Judge Easterbrook’s trademark plain language and breezy style. We picked it up anticipating of a good read. It was.

Then why did we have to read it three times before we understood it? 

Here’s the deal. As the opinions notes, “[t]his is the fourth published appellate opinion in a long-running dispute between New West and the City of Joliet.” Slip op. at 1. Follow along:

  • NW v. City (federal court): City is violating the federal Fair Housing Act. 
  • City v. NW (state court, filed seven months later): We’re condemning your property, New West. 
  • NW removed the state court eminent domain case to federal court.
  • NW argued in the removed eminent domain case that condemning its property would violate the Fair Housing

…
Continue Reading 7th Cir: Be Careful About Your Counterclaims In Eminent Domain Cases

Earlier this week, we reported that a San Francisco trial court had heard arguments that Pacific Gas and Electric could not be liable for damages resulting from the Northern California wildfires under an inverse condemnation theory.  

Well, here’s the court’s written Order Overruling PG&E’s Demurrers which the court made available yesterday. The crux of the court’s rationale is that PG&E hasn’t shown that it will not be able to spread any damage judgment to the (its) public:

Even if PG&E were right that a privately-owned public utility will be unable to recoup its losses through rate increases eviscerates a plaintiff’s right to inverse condemnation, I would overrule the demurrer. Taking the PUC decision at face value, the loss spreading rationale may be satisfied in this case so long as PG&E acted as a “prudent manager.” Whether PG&E acted as a “prudent manager” is disputed — PG&E of course contends it…

Continue Reading More On No. Cal. Wildfire Inverse Cases – Order Overruling Demurrers

A slight detour from our usual fare, to note a decision from a closely-divided Hawaii Supreme Court in a case about when a State employee is eligible for service-connected disability retirement benefits under the State Employees’ Retirement System. In Pasco v. Board of Trustees of the Employee Retirement System, No. SCWC-13-3629 (May 22, 2018), the court, in a majority opinion by Justice Sabrina McKenna, concluded that a State of Hawaii employee was disabled as the result of an on-the-job accident, and was therefore eligible for disability benefits. 

The reason we’re posting this 3-2 case (majority opinion here, dissenting opinion here) is that we find close cases like this fascinating, and we represent the prevailing employee. While employment law isn’t our usual area of operations, we handle appeals in just about any area of law, and for this one — argued back in February 2017 — we …

Continue Reading HAWSCT Clarifies When An “Accident” Occurs In Service-Connected Disability Retirement Statute