Court of Federal Claims | Federal Circuit

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You remember that Ingrid Bergman and Charles Boyer classic “Gaslight,’ in which Bergman’s character is driven by her manipulative husband to doubt her own grip on reality? It gave rise to the term “gaslighting,” which, according to Wikipedia, is “a form of mental abuse in which information is twisted or spun, selectively omitted to favor the abuser, or false information is presented with the intent of making victims doubt their own memory, perception, and sanity.”

Well, yesterday’s New York Times report about the verdict in the AIG bailout takings case, “In A.I.G. Case, Surprise Ruling That Could End All Bailouts,” for a moment had us believing we were being gaslighted, because the Court of Federal Claims had issued a zero verdict for the plaintiffs in their takings case against the federal government, even though the court ruled the government wrongly conditioned…

Continue Reading Is The NYT Gaslighting Us? In What Alternate Reality Is The CFC’s Zero Just Comp Award A Victory?

The Court of Federal Claims has issued its Opinion and Order in the AIG takings case, which we have been following. This is the case brought by “uberlawyer” David Boies. Background on the case, here, including pleadings, and audio of a talk we gave about the case to the ABA. At the early stages of this case, we characterized any claim for $25 billion, even when the plaintiff is represented by a top-shelf guy, as “audacious.”  

Bottom line: the feds treated AIG badly, very badly. But the measure of liability in a takings case isn’t based on bad treatment generally, but on bad treatment economically. And in that arena, “twenty percent of something [is] better than 100 percent of nothing.” 

We’ll have more after we’ve had a chance to review the 75-page single-spaced opinion, so complex it needed to have a dramatis personae appended (pages…

Continue Reading Audacity Ain’t Enough For The CFC: Gov’t Behaved Badly, But AIG Bailout No Taking Because No Damage

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            “It’s Frank’s world, we just live in it.”

                      – attributed to Dean Martin, about Frank Sinatra

A narrowly drawn opinion from the Supreme Court in Horne v. Dep’t of Agriculture, No. 14-275, argued in April and to be decided by the Court sometime before the Term ends this month, could attract more than the needed five Justices to form a bare majority, and the initial reports from the arguments agree that the Hornes’ takings argument appeared to gain traction with at least a couple of Justices from the Court’s left bloc. Combined with the property-friendly Justices and Justice Kennedy (who appeared to view the government’s arguments with great skepticism), they could put the Hornes well over the top. 

There may be much more at stake, however, if any part of the government’s…

Continue Reading Leviathan Shrugged: Oral Arguments In Horne Reveals The Taking, But Remedy Still Open

Third time around for Lost Tree’s takings case against the federal government on this blog.

The first was the Federal Circuit’s decision concluding that a single Florida parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers’ denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus “scattered wetlands in the vicinity” also owned by the same owner. 

Second was the Court of Federal Claims, which on remand held that there was a taking, and that, after applying either the Lucas total wipeout or the Penn Central ad hoc test (the diminution in value caused by the denial of the permit was 99.4%), the just compensation owed to Lost Tree was in the neighborhood…

Continue Reading Fed Cir: “Economically Beneficial Use” Means More Than Someone Might Buy The Property

Here’s the latest in a case we’ve been following, a takings claim against the federal government which was dismissed by the Federal Circuit under 28 U.S.C. § 1500, the statute which deprives the Court of Federal Claims of jurisdiction over a case if a related case is pending in another court at the time the CFC complaint is filed.

The core issue is one we’ve dealt with extensively before, and which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), namely, whether § 1500’s jurisdictional bar operates in takings claims, which are required to be split between the CFC and the district courts (aka the “Tucker Act Shuffle”). We filed an amicus brief in that case, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they may be required…

Continue Reading New Cert Petition: Revisiting Tohono And § 1500 In Federal Takings Claims

For those of you who are members of the ABA Section of State and Local Government Law’s Land Use Committee (if you aren’t, you can become a member easily; just ask me how), please tune in on June 12, 2015 for our monthly teleconference.

Here’s the announcement:

Our third meeting is scheduled for Friday, June 12, 2015 at 2:00 pm EDT, and we will be featuring as our speaker, Robert Thomas, a land use lawyer and publisher of the law blog inversecondemnation.com (who is also the Chair of the Section’s Eminent Domain Committee) who will present a 20 minute program about the key takings case now awaiting decision by the U.S. Supreme Court, Horne v. United States Dep’t of Agriculture. 

FREE Teleconference Sponsored by the Land Use Committee
Friday, June 12, 2015
2:00 p.m. EDT
Dial-in 888-3967955
Passcode 797687#

Everything a Land Use Lawyer Needs To Know About …

Continue Reading Mark Your Calendars June 12, 2015: Free ABA Teleconference “Everything a Land Use Lawyer Needs To Know About Dancing California Raisins: A Report From the Oral Arguments in Horne v. USDA”

Not much new in the Federal Circuit’s opinion in Resource Investments, Inc. v. United States, No. 14-5069 (May 12, 2015), which upheld the dismissal of a Court of Federal Claims takings complaint for lack of jurisdiction under of 28 U.S.C. § 1500. 

That statute, as federal takings mavens know (and as the Supreme Court recently held in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011)), deprives the CFC of subject matter jurisdiction if there’s a claim based on the same operative facts “pending in any other court any suit or process.” In this takings case, the property owner filed its CFC complaint — which alleged that the feds’ denial of a Clean Water Act permit was a taking — while its lawsuit challenging the permit denial under the Administrative Procedures Act was still pending in the Ninth Circuit. Same underling facts and a pending…

Continue Reading Protip: File Your CFC Complaint First, And Then File Your District Court Action – Even If It Makes No Sense

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

A long opinion (73 pages) from the U.S. Court of Federal Claims in St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015), and it is worth reading in its entirety (there are even photos and maps embedded). But here’s the short version:

In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A…

Continue Reading CFC: Katrina Flooding Is A Taking

While we put the finishing touches on our full write-up of last week’s oral arguments in Horne v. U.S.D.A., No. 14-275 (we posted our initial thoughts after attending the Court’s session here), here are other summaries of the arguments:

  • “Supreme Court justices appear ready to rule against California raisin board” from the Los Angeles Times, isn’t a purely objective view of the case, and the “meta-message” (the Hornes are ingrates for challenging a program that benefits them) comes through loud and clear. The report also misunderstands the relief which the Hornes seek: “While it appeared clear a majority will side with Horne, it is not clear what this means for other farm products, or even what compensation he is due.” We hope this misconception doesn’t carry over to the Justices, since the Hornes are not seeking just compensation in this action, and only argue that

…
Continue Reading Horne Oral Argument Round-Up