Court of Federal Claims | Federal Circuit

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Here’s the amici brief of the Cato Institute and the National Association of Reversionary Property Owners supporting the petitioners in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

In that case, the Tenth Circuit’s opinion held that the term railroad “right of way” as used in an 1875 federal statute was a grant of land to railroads in fee simple with an “implied reversionary interest” to the United States, and not merely an easement. The difference is that easements may be extinguished, while reversionary interests are not. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court claiming it and and not Brandt owned the right of way.

The amici brief argues:

This case is important to the Association because the Tenth Circuit’s decision unsettles long-established property interests and clouds…

Continue Reading Amicus Brief In Railbanking Case: Circuit Split May Upset Title To Millions Of Acres

Here’s the amicus brief we filed today on behalf of our colleagues at Owners’ Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

That petition asks the Court to review a Tenth Circuit decision that continued a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act. The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting…

Continue Reading Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims

You’d think the proposition in the title of this post, upheld today by the U.S. Court of Appeals for the Federal Circuit in Ladd v. United States, No. 2012-5086 (Apr. 9, 2013), would seem kind of obvious. That a landowner could not be charged with notice that a government act is a taking if the government admits to not even knowing about the event? But it wasn’t, and required a court of appeals’ opinion to lock it down. 

This case is the latest from our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a Court of Federal Claims case on that subject.

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case…

Continue Reading Federal Circuit: Statute Of Limitations In Tucker Act Doesn’t Start Running Until Govt Provides Notice Of The Taking

Here’s what’s on our reading list today:

  • Here’s the latest chapter in the saga of one Fane Lozman, whose titling at windmills got some Supreme Court love recently when the Court held that his floating home was not a “vessel” under admiralty law, and a Florida city was wrong to seize it. My Damon Key colleague Mark Murakami reports on the 11th Circuit’s recent ruling in Lozman’s related federalcivil rights case. Houseboat Redux – Eleventh Circuit Reinstates Lawsuit (via Hawaiioceanlaw.com). 

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Continue Reading Wednesday Round-Up: Houseboat Redux, Backtracking Post-Kelo, Arkansas Game Remand, Big Gulps

As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking unless it was “permanent,” and remanded the case to the Federal Circuit for more.

Although the Federal Circuit indicated it would have preferred to avoid trying to deal with the issue (its order establishing a briefing schedule on remand invited the parties “to consider mediation of the issues remaining in the case following the Supreme Court’s remand”), it looks like that’s not what is happening, because the parties have filed their briefs. 

The briefs appy the multi-factor Penn Central-ish “factors and circumstances” set out by the Supreme Court: 

  • “[T]ime is indeed a factor in determining the existence vel non of a compensable taking” Was the flooding “temporary and unplanned” and a result of “exigent circumstances?”
  • “[T]he degree to which the invasion is

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Continue Reading Arkansas Game On Remand From SCOTUS – First Briefs

If that headline calls out to you, congratuations: you are officially a takings nerd.

In Brandt v. United States, No. 12-5050 (Mar. 26, 2013), the Federal Circuit held that a takings claim originally submitted as a compulsory counterclaim to the federal government’s attempt to quiet title in a District Court action — which was then subsequently filed as a separate action in the Court of Federal Claims — was not barred by 28 U.S.C. § 1500. That statute deprives the CFC of subject-matter jurisdiction “of any claim for or in respect to which the plaintiff … has pending in any other court any suit or process against the United States….”

If this case name sounds familiar, here’s why. Last week we posted the cert petition in a companion case (the one that the government alleged was pending at the time that Brandt filed his takings counterclaim). Brandt’s petition…

Continue Reading Federal Circuit: Takings Counterclaim Not Barred By Section 1500 – A Dismissed Claim Is Not “Pending” Even Though It Might Be Appealed

Here’s the Reply Brief in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

The brief responds to the USDA’s brief, and argues that the issue before the Court is not “jurisdictional,” which means it could be raised any time, much like the USDA did here, even after the Ninth Circuit issued its opinion. Rather, this is a choice of remedies ripeness question subject to “forfeiture.” Barista’s note: we’re happy to see what is commonly referred to as “waiver” (a knowing and intentional relinquishment of a known right) properly labeled as “forefeiture” (relinquishment of a right by operation of law), because in civil litigation when…

Continue Reading Reply Brief In California Raisin Takings Case (Argued Today): Don’t Confuse Constitutional Rights With Remedies

Yesterday, we posted our thoughts about the upcoming (March 20) Supreme Court oral arguments in Horne v. United States Dep’t of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.

Here are a few more perspectives on the arguments:

  • Supreme Court will divine the legal stakes in California raisin wars – Michael Doyle at McClachy: “Dissident California raisin growers will soon get their day in the Supreme Court sun, with a case that’s juicier than it seems. Libertarians are weighing in. So, from the other side, is Sun-Maid, the largest single marketer of raisins in the world. Texas is siding with the dissidents, as is the U.S. Chamber of Commerce.Add it up

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Continue Reading More California Raisin Takings Case Previews

Koontz Sets The Stage

The apparent sticking point during the January oral arguments in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), came to light via Justice Scalia’s questioning of the property owner’s counsel about whether anything had been “taken” when a property owner refused to accept a development permit conditioned on him paying for improvements to public land miles away from his property, because doing so would violate the unconstitutional conditions doctrine of Nollan/Dolan. For how could the owner claim that his property was taken when he didn’t accept the permit? The issue was succintly stated by Justice Kagan when she asked point-blank, “where is the taking?” (see p. 11 of the Koontz transcript).

We’re still waiting for the opinion in that case so don’t have the Court’s answer just yet, but Part II of the…

Continue Reading Horne v. USDA Oral Argument Preview: Is It The Takings Clause, Or Only The Just Compensation Clause?