Court of Federal Claims | Federal Circuit

Subscribe to Court of Federal Claims | Federal Circuit via RSS

Here’s the property owner/petitioner’s Reply Brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.

The Federal Circuit held that flooding caused by the Corps was only temporary that destroyed G&F’s trees did not result in a compensable taking merely because the flooding it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

The Reply Brief responds to the federal government’s brief, and argues: 

The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and…

Continue Reading Property Owner’s Reply Brief In Arkansas Game & Fish Comm’n: Flooding Causing Destruction Is Physical, Not Regulatory Taking

We sure wish we could have attended the Cato Institute’s recent Constitution Day program in Washington, D.C., but here’s the next best thing, a video of the presentations on Property Rights, with a review of the recent Sackett and PPL Montana decisions by the Supreme Court, and an update about the state of property rights.

Speakers include our PLF colleague Damien Schiff, lawprof Jonathan Adler, and lawprof Ilya Somin.

We can’t embed the video, but you can watch it here on CSPAN’s site. Continue Reading From Cato Institute’s Constitution Day: Property Rights And The Supreme Court (Video)

Check out Evans v. United States, No. 2010-1303 (Fed. Cir. Sep. 17, 2012), a rails-to-trails case in which the Federal Circuit “confess[ed] to some puzzlement over exactly what all this sturm und drang is about.” Slip op. at 9 (footnote omitted). The court resolved a procedural issue in favor of property owners (represented by our colleague Thor Hearne, who is a frequent guest poster on rails-to-trails takings issues, most recently here).

It’s a short opinion so we won’t go into it in detail, but the case details the procedural hurdles that property owners often must go though and the jurisdictional maze they must navigate to get their takings claims against the federal government resolved. Takings lawyers who practice in the Court of Federal Claims refer to the constant jumping back and forth between the District Courts and the CFC as the “Tucker Act Shuffle,” and…

Continue Reading Federal Circuit: What’s All The “Sturm Und Drang” About?

Here’s the federal government’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

As you might expect, the brief phrases the Question Presented somewhat differently than the property owner/petitioner’s brief:

The Court of Federal Claims found that during several years in the 1990s, temporary and irregular changes in water releases from a flood-control dam operated by the United States Army Corps of Engineers marginally…

Continue Reading Fed Govt’s Brief: “Temporary And Irregular Inundation Of Wetlands” (Read: Flooding) Is Not A Taking

We are at the ABA Annual meeting this week, so don’t have a lot of time to keep up a long-distance practice and write up comprehensive blog posts, so we’re going to keep it short.

Here’s the latest takings decision from the Federal Circuit in a case we’ve been following, Estate of Hage v. United States, No. 2011-5001 (Fed. Cir. July 26, 2012). The property owners filed their case in 1991 in the Court of Federal Claims seeking compensation for the federal government’s taking of water rights in Nevada. In 2008, the CFC ruled in favor of the property owners, but the Federal Circuit reversed on Williamson County grounds because the case wasn’t administratively ripe. The federal agency, you see, has not reached a final decision on what the property owners might do with the land, and just might issue a permit (even if other similar permit applications…

Continue Reading Federal Circuit: 22-Year Old Takings Case In Which The Landowner Is Already Dead Is Not Ripe

In a case that was probably doomed from the start because of an earlier precedential ruling, the Federal Circuit concluded that the government’s temporary seizure of the plaintiff’s computer “for review” at a border stop and the subsequent destruction of the computer hard drive and resulting loss of data was not a taking because the seizure was an exercise of the government’s power to control the border.

We’ve been down the road of Kam-Almaz v. United States, No. 2011-5059 (June 30, 2012) before, in AmeriSource, for example, where the government seized the plaintiff’s property as evidence in order to prosecute a third party, and by the time the government returned the property to its owner, it was worthless. In Kam-Almaz, the ICE agents took the laptop because Kam-Almaz was a “person of interest,” promising to return it shortly. However, during the time ICE had it, the…

Continue Reading Federal Circuit: Taking As A Result Of Police Power Isn’t A Taking

Check out the latest brief filed in the Federal Circuit by 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 CFC case on that subject.

In Ladd v. United States, the CFC dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion in Arizona. The court held that the claim was filed past the six-year Tucker Act statute of limitations. A Trails Act case begins when the Surface Transportation Board issues an order (a NITU) that converts an otherwise abandoned railroad easement into a new federal rail-trail easement. The new easement can be used by the public for recreation and the STB retains jurisdiction to “railbank” the corridor, potentially allowing some railroad in the future to build a new railway line across the land. …

Continue Reading Can The Statute Of Limitations In Tucker Act Start Running Before The Govt Provides Actual Notice Of The Taking?

When does a party who loses a petition for rehearing actually win it?

In Bywaters v. United States, No. 2011-1032 (Fed. Cir. Mar. 1, 2012) an opinion we detailed here, a 2-1 panel of the Federal Circuit held that the property owner’s request for attorneys fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act was reasonable, but halved it because the amount of compensation sought and awarded was not that large. The majority, in an opinion by Judge Dyk, remanded the case to the Court of Federal Claims for additional calculation.

Judge Plager dissented, asserting that remand was pointless because there was nothing left for the CFC to do but apply the lodestar (reasonable rate x reasonable time), and since the panel majority did not disturb any of the CFC’s findings on those two issues, the result, absent the halving, should be the same. Small…

Continue Reading Fed Circuit: En Banc Petition Denied, But Kind Of Granted

Here’s the petitioner’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), a case from the Federal Circuit that we’ve been watching.

In a 2-1 decision, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it was temporary and eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. We posted the Federal Circuit’s opinion here.

The Question Presented is straightforward:

Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.

The Supreme Court’s docket report is here.

Petitioner’s Brief on…

Continue Reading Petitioner’s Merits Brief In SCOTUS Takings Case: Even Temporary Flooding Requires Compensation