Court of Federal Claims | Federal Circuit

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Now that we’ve decked the halls, its time to clear the decks: the end of 2011 is on the horizon, and in order to start 2012 off on a fresh note, here are opinions of interest lined up in our “to post” queue, but that we’ve not found the time to actually digest and post:

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Continue Reading Year-End Opinion Dump

SCOTUSblog has listed a case we’ve been following, Arkansas Game & Fish Comm’n v. United States, as its “petition of the day” (cert petitions identified as “raising one or more questions that have a reasonable chance of being granted in an appropriate case”). SCOUTSblog posts the cert petition and the amicus briefs in support here.

In that case, the Federal Circuit in a 2-1 opinion concluded that temporary flooding is not a compensable taking, merely because they were temporary. 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, and the Supreme Court’s docket report is here.

The Question Presented by the cert petition:

Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought…

Continue Reading New Cert Petition: Is Temporary Flooding A Compensable Taking?

Count us in the “not surprised” column: the property owners have sought a panel rehearing or a rehearing en banc from the Federal Circuit in CCA Associates v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).

The petition for rehearing asserts

If any case cried out for en banc review, this is the one. The decisions of this Circuit regarding the effect of the ELIHPA and LIHPRHA statutes are in conflict, not only with each other, but also with settled law on regulatory takings and contract formation. The panel majority acknowledged this conflict but held that it had no choice but to follow the Court’s decisions in Cienega Gardens v. United States, 503 F.3d 1266 (Fed. Cir. 2007) (“Cienega X“) and Ciegega Gardens v. United States, 194 F.3d 1231 (Fed Cir. 1998) (“Cienega IV“).

The exceptionally important issues presented by this petition, including…

Continue Reading Petition For Rehearing/En Banc In CCA Associates: Time To “Sort Out” Takings Law

Here’s the latest in the Casitas case from the U.S. Court of Federal Claims. Casitas Municipal Water Dist. v. United States, No 05-168L (Dec. 5, 2011). This case highlights the importance of identifying the “property” right alleged to have been taken in these type of cases:

This case is before the court following a trial held to determine the compensation, if any, owed to plaintiff under the Fifth Amendment to the United States Constitution for the taking of its property. In an earlier round of litigation in this case, the Court of Appeals for the Federal Circuit ruled that operating restrictions on plaintiff’s water project imposed by the National Marine Fisheries Service “NMFS”) pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–44 (2006), should be analyzed as a physical taking where plaintiff was required to reroute a portion of the water it had diverted for its own…

Continue Reading Court Of Federal Claims: Water Rights Takings Claim Not Ripe (Flashbacks To The Hawaii Water Rights Case)

From today’s Bloomberg, a report about the two recently-filed lawsuits alleging the federal government’s takeover of AIG in 2008 was unconstitutional. One suit was filed in federal court in New York against the Federal Reserve Bank of New York, the other, seeking $25 billion in just compensation, was filed in the U.S. Court of Federal Claims against the government itself. 

Both complaints were filed by attorney David Boies, who represented the U.S. in its Microsoft Inc. 1999 antitrust trial and Al Gore in the Florida presidential recount litigation in 2000.

“Any time David Boies is asking for $25 billion, I would say this is not a normal case,” said Robert H. Thomas of the Honolulu firm Damon Key Leong Kupchak Hasters.

“He takes cutting edge cases in unexplored areas of law,” said Thomas, who specializes in land-use and eminent domain. “It’s audacious. As someone who represents plaintiffs in…

Continue Reading Bloomberg Reports On Greenberg’s “Audacious” Takings Lawsuit

As reported yesterday by the NY Times :

Maurice R. Greenberg, the former chief executive of the American International Group, sued the United States Treasury and the Federal Reserve Bank of New York on Monday, contending that their takeover of the insurer in the fall of 2008 was improper and that the Fed breached its duty to A.I.G. shareholders when it unwound the company’s disastrous bets on mortgage securities.

. . . .

“What these lawsuits say is that in our country, not even the government is above the law,” said David Boies, the lawyer at Boies, Schiller & Flexner, who represents Mr. Greenberg and Starr. “When the government takes action, although it has enormous power, there are legal limits to what they can do. One of those limits is that they cannot take private property even for a good purpose if they do it in violation of…

Continue Reading Legal Superstar Files New CFC Just Compensation Complaint For Federal Taking Of AIG

Here’s the latest from the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in most regulatory takings claims against the federal government), CCA Associaties v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).

This is an appeal of a Court of Federal Claims decision holding that two federal statutes worked a taking under the three-part Penn Central test because they abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing — a public good — and that it was a taking.

The Federal Circuit reversed:

The United States appeals from the decision of the Court of Federal Claims that the Emergency Low Income Housing Preservation Act, Pub. L. No. 100-242, §…

Continue Reading Federal Circuit: No Regulatory Taking Under Penn Central Test

This has been a pretty good week for my St. Louis colleague Thor Hearne.

First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC. 

Rogers involves the appraisal standard applied in a partial takings case. As Thor writes:

The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law…

Continue Reading Another Good Decision From The Court Of Federal Claims

Here’s a worth-reading decision from the U.S. Court of Federal Claims (the court that has exclusive jurisdiction to hear major regulatory takings claims agains the federal government), litigated and won by colleague Mark (Thor) Hearne, II.

In Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011), the CFC concluded the federal government granted the property owners’ summary judgment on their takings claim. Rail-to-trails cases are detailed (see Preasault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) and pages 2-3 of the CFC’s opinion for the legal framework), but the short story is that the railroad easment the property owners gave the federal government many years ago does not extend to its use as a recreational trail:

The court finds that the railroad’s easements in these Plaintiffs’ properties in the northern segment were for railroad purposes and that, for the same reasons…

Continue Reading Rail To Trail Fail: CFC Finds A Taking In A Railway Conversion

We break from our Brigham-Kanner Conference programming to bring you this development. The U.S. Court of Appeals for the Federal Circuit has issued its first post-Tohono O’Odham Nation v. United States opinion, Trusted Integration, Inc. v. United States, No. 2010-5142 (Oct. 14, 2011), involving the Court of Federal Claims’ subject matter jurisdiction under 28 U.S.C. § 1500.

Haven’t had a chance to read it yet to see if there’s anything there of interest to takings lawyers, but thought we’d post it up just in case. Continue Reading Federal Circuit: First Post-Tohono O’odham CFC Jurisdiction Opinion