Court of Federal Claims | Federal Circuit

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MRGO

When you a federal takings plaintiff in the Federal Circuit and you pull Judge Timothy Dyk on your panel, your heart sinks. More so when he aggressively questions you in oral argument. And when you see he has written the opinion, you know it’s game over at this level.

Because we can’t remember a single case in which he’s ever held for a property owner in a regulatory takings or inverse case. He just doesn’t like property owners and their takings claims, apparently. His last big decision on flood takings, Arkansas Game and Fish, adopted a per se rule that any flooding which the owner could not prove was “permanent” is categorically immune from takings liability. His opinion for the Federal Circuit was reversed unanimously by the Supreme Court, in an opinion by Justice Ginsburg, which alone should tell you something. 

Well, Judge Dyk is at it again…

Continue Reading MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit

Here are the cases and materials I either discussed, or planned to discuss (but ran out of time), in this morning’s session at the 32nd Annual Land Use Institute:

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Continue Reading Land Use Institute – Cases And Links From Today’s Session On Federal Laws And Local Land Use Decision Making: Water

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We’re in Detroit the rest of the week at the Mercy Law School for the venerable Land Use Institute, now in its 32nd iteration.

Planning Chair Frank Schnidman has assembled a great faculty including out Detroit colleague Alan Ackerman (above, talking about takings liability for flooding), and we’ll be spending the time talking inverse condemnation, public trust, planning law, homelessness, autonomous vehicles, affordable housing, RULIPA, and similar topics. We’ll be presenting on “Eminent Domain, Vested Rights, and Regulatory Takings,” “Client Representation: Developer, Government, and Citizens Groups,” and “Federal Laws Affecting Local Land Use Decision Making.” 

If you are here with us in Detroit, stop by and say hello. If you aren’t here, shame on you! This is one of the best and most affordable tuition deals in CLE.

But all kidding aside, if you are not in Detroit now, be sure to calendar these…

Continue Reading Land Use Institute – Detroit

Here’s what we’re reading this Thursday:

Cert(s) Denied

California Wildfires and Inverse Condemnation

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Continue Reading Thursday Round Up: Cert(s) Denied, Cal Wildfires, City-to-City Takings, Other Stuff

Here’s the Reply Brief in a case we’ve been following, Brott v. United States, No. 17-712, in which the U.S. Supreme Court is being asked to consider whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury. We filed an amicus brief in support of the petition.

The Reply responds to the federal government’s brief in opposition which acknowledged the Just Compensation Clause is “self-executing” and that you have a right to “recover just compensation,” but before you can actually recover compensation, Congress must deign to recognize your Constitutional right by agreeing to be sued. And if Congress can withhold its consent to pay compensation, it surely (in the Government’s view) can dictate the terms on which an owner can recover compensation.And if that means the Court of Federal Claims and …

Continue Reading SCOTUS Reply: Determining Compensation For Taking A Private Right Is A Judicial Function

Thanks to a colleague for giving us the heads-up about a recently-filed cert petition involving an issue we covered in a different case recently: judicial takings. Specifically, an allegation that a federal court has taken property, and as a consequence, the United States owes just compensation. The background of the case is pretty interesting because it also raises the specter of civil forfeiture. 

The petition isn’t all that long, so it’s a quick read, and we recommend you do so. But here’s the short story. Mr. and Mrs. Stanford got divorced. Apparently, Mr. Stanford was a bad guy, or at least was accused of being a bad guy. Securities fraud. But Mrs. Stanford had no part of it, and was, everyone agreed, an “innocent spouse,” having been separated from the miscreant for 15 years. The Securities and Exchange Commission, however, asked the local District Court to appoint a …

Continue Reading New Cert Petition: When A Federal Court Takes Possession Of “Innocent Spouse’s” Property For Securities Fraud, Is This A Judicial Taking?

Here’s the latest in a case we’ve been following since its inception, Brott v. United States, the case which asks the deceptively simple question of whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury.

The District court said no, as did the Sixth Circuit. The property owners’ cert petition asks this question:

Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?

We filed an amicus brief in support, arguing that the “self-executing” nature of the Just Compensation Clause means that yes, property owner, you can bring a lawsuit for compensation if the government has taken your property: 

The government does not enjoy its usual sovereign…

Continue Reading US BIO In Brott: No, The Fifth Amendment Isn’t Really “Self-Executing”

Here’s the cert petition, recently filed in a case we’ve been following as it has made its way from the Court of Federal Claims and through the Federal Circuit.

The underlying matter was litigated in the District Court and the Fifth Circuit. Those courts concluded that the plaintiff did not own mineral leases in Louisiana because under federal common law, it did not acquire any rights by prescription. The plaintiff then filed a Tucker Act claim in the in the CFC seeking compensation for a judicial taking on the theory that the Fifth Circuit’s ruling altered the plaintiff’s previously-established rights by changing the law.

The CFC accepted that fact as true, but concluded that the CFC has no jurisdiction to tell the Fifth Circuit it was wrong. The Federal Circuit affirmed, and here we are. 

Here’s the Questions Presented by the petition: 

In Stop the Beach…

Continue Reading New Judicial Takings Cert Petition: Can A Federal Court Take Property By Changing The Law?

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We’re on our third day at the 2018 ALI-CLE Eminent Domain and Land Valuation Conference in Charleston, SC, and as usual, we’re having our headline presentations by takings guru Michael Berger (pictured above), who is updating us on the most interesting and important cases of the past year, and Jim Burling, who will be answering the question, “Should We Rethink Regulatory Takings Law? The Takings Clause, Privileges and Immunities, and Due Process.”

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Here are links to the…

Continue Reading ALI-CLE Eminent Domain Conference, Third Day: Berger And Burling On Takings

Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast — we’ll see you soon at the “four corners of the law.”

And if you delayed too long in registering, please don’t despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay…

Continue Reading ALI-CLE Eminent Domain & Land Valuation Conference – In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)