Court of Federal Claims | Federal Circuit

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In case you were not paying attention on this fine Thursday, here comes the Federal Circuit’s opinion in Mildenberger v. United States, No. 2010-5084 (June 30, 2011). It’s an interesting opinion because it deals with the mildly metaphysical question of when the six year statute of limitations for inverse condemnation claims against the federal government commences in cases where the taking and damage to the property is gradual, and nearly imperceptible.

In many cases, inverse condemnation claims are not like straight condemnation where the property owner knows when her property is being condemned, because in an inverse claim the owner doesn’t get served with a complaint, but instead must institute the suit after her property is taken or damaged, and it is often not clear when property has been taken or damaged to such an extent that a claim must be brought. The general rule is that a property…

Continue Reading Federal Circuit On The Metaphysics Of Takings Claim Accrual

This just in: the U.S. Supreme Court has ruled 7-1 that when a District Court lawsuit and a lawsuit in the U.S. Court of Federal Claims are based on the same operative facts, the CFC has no subject matter jurisdiction. United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010).

Although it involves claims of breach of trust on Indian land, the case is of interest to property lawyers, since the CFC is the court that has exclusive jurisdiction to consider claims for just compensation agains the federal government claims in excess of $10,000.

The opinion is available here.

Justice Kennedy authored the majority opinion, and only Justice Ginsburg dissented. Justice Kagan recused. Disclosure: we filed an amicus brief supporting the Nation.

More, after a chance to read the opinions.

United States v Tohono Oodham Nation, No. 09-846 (Apr 26 2011)…

Continue Reading SCOTUS Opinion In Tohono: Court Of Federal Claims Has No Jurisdiction When District Court Suit Based On Same Facts

In CRV Enterprises, Inc. v. United States, 626 F.3d 1241 (Fed. Cir. 2010), the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in regulatory taking and inverse condemnation cases against the federal government) held the EPA’s installation of a log boom on a navigable waterway in California’s central valley was not a taking even though it cut off the plaintiffs’ riparian access. We summarized the opinion here.

The property owners have filed a cert petition, asking the Court to review two Questions Presented:

1. In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court repudiated the so-called Notice Rule, which held that post-enactment purchasers could not state a claim for a regulatory taking arising from restrictions adopted before they took title to the property. The Federal Circuit’s decision in this case — like the Ninth Circuit’s decision in Guggenheim v. …

Continue Reading Another Cert Petition Asks: Can A Post-Regulation Purchaser Bring A Takings Claim?

Today, on behalf of the Manufactured Housing Institute, we filed this amicus brief (also available below) in the U.S. Supreme Court in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central.

The core of the majority opinion is based on the court’s supposition that the Guggenheims could not have “investment-backed expectations” because the rent control regulations were in place when they purchased their property. See Guggenheim v. City of Goleta, No. 06-56306 (9th Cir., Dec. 22, 2010) (en banc).

Our brief argues that the Ninth Circuit wrongly refused to apply the rule of Palazzolo v. Rhode Island, 533…

Continue Reading SCOTUS Amicus Brief: Can A Post-Regulation Purchaser Bring A Takings Claim?

In CCA Associates v. United States, No. 97-334C (Jan. 29, 2010), the U.S. Court of Federal Claims held that two federal statutes worked a taking under the three-part Penn Central test because it 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 Government appealed, asserted the CFC missaplied the Penn Central test, and the property owner cross-appealed, argued the CFC wrongly dismissed a breach of contract claim. Penn Central, of course, refers to the multi-factored test for an ad hoc regulatory taking first announced in Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978), and most recently reaffirmed…

Continue Reading Of DIBEs, Rose Acre Farms IV, And Cienega X: Federal Circuit Considering Penn Central

In Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Mar. 30, 2011), a case in which the Game and Fish Commission asserted that the Corps of Engineers’ deviations from a dam’s operating plan caused increased flooding and resulted in the destruction of trees, the U.S. Court of Appeals for the Federal Circuit held that the flooding was temporary and therefore not compensable:

The parties in this case vigorously dispute whether the extent and frequency of flooding satisfied the substantiality requirement and whether it was predictable. However, we need not decide whether the flooding on the Management Area was “sufficiently substantial to justify a takings remedy” or “the predictable result of the government’s action,” Ridge Line, 346 F.3d at 1355, 1356, because the deviations were by their very nature temporary and, therefore, cannot be “inevitably recurring” or constitute the taking of a flowage easement.

Slip op at…

Continue Reading Federal Circuit: Temporary Flooding Causing Permanent Damage Is Not A Taking

This just in: the U.S. Court of Appeals for the Federal Circuit has issued an opinion in Klamath Irrigation District v. United States, No. 2007-5115 (Feb. 17, 2010), a case we’ve been watching.

I’m at the ALI-ABA conference on eminent domain in Coral Gables, Florida, so won’t have the chance to digest and summarize the rather longish opinions (34 page majority, 8 page concurring) for a few days, but I wanted to get it out so blog readers could review it while I’m tied up teaching at the conference.

The Federal Circuit vacated the Court of Federal Claims’ dismissal of the plaintiffs’ takings and breach of contract claims. It sent the case back to the CFC to allow the plaintiffs the opportunity to prove they possess water rights under Oregon law. The CFC had concluded that they did not, but on appeal, since whether an owner possesses Fifth Amendment…

Continue Reading Federal Circuit: Water Rights, Once Proven, Are Fifth Amendment “Property”

Here’s an unusual takings case for you, and a decision that is worth reading, if only for its detail about wartime takings and clandestine contracts with the government. Besides, any court opinion that references “Maxwell’s Smart’s shoe phone” earns a spot on the to-read list, no?

In Doe v. United States, No. _______ (Nov. 22, 2010), the plaintiff, an unnamed citizen of Iraq, sued the federal government seeking just compensation for the occupation of his home by U.S. Marines during the Battle of Fallujah in 2004. The Court of Federal Claims held it had no subject matter jurisdiction over his claims for a taking and breach of contract.

The plaintiff “professes to be a sheik and a man of considerable education and influence.” Slip op. at 3. He asserted that before the Coalition invasion, “authorized representatives of the United States” contacted him and asked him to provide…

Continue Reading CFC: No Jurisdiction Over Iraqi’s Claim That Marines Took His Home During Battle Of Fallujah

In a case with “a lengthy procedural history spanning the past three decades and involving litigation in various federal courts,” in Innovair Aviation Ltd. v. United States, No. 2010-5025 (Jan. 25, 2010), the United States Court of Appeals for the Federal Circuit held that the Court of Federal Claims had no subject matter jurisdiction to consider Innovair’s takings claim because “Congress provided a comprehensive administrative and judicial system in the district courts to review the in rem forfeiture of property seized pursuant to 21 U.S.C. § 881.”  Slip op. at 18.

The case involves the government’s seizure of modified DC-3 airplanes sold to Air Columbia and allegations of drug smuggling, FAA regulations and the right to market turboprop conversion kits, and substitute res bonds. Relying on Vereda LTDA v. United States, 271 F.3d 1367 (Fed. Cir. 2001), the court concluded that a Tucker Act remedy was not available…

Continue Reading Federal Circuit: Tucker Act Not Available When Congress Provides Other Relief

In Navajo Nation v. United States, No. 2010-5036 (Jan. 10, 2011), the U.S. Court of Federal Claims concluded that the Nation’s claim that a development moratorium resulted in a taking was barred by the six year statute of limitations.

The Nation asserted that a 1934 federal statute created a property interest in an area known as the “Bennett Freeze area,” and that the federal government took that right when it precluded the Nation from any development within the area. The facts and legal background of the case are somewhat convoluted, and you can read the opinion if you are interested, but here’s the essence of the court’s analysis:

Here, the Navajo Nation’s takings claim, if any, accrued when the United States precluded it from developing land within the Bennett Freeze area without Hopi Tribe ap-proval. This was the only governmental action that served to restrict any right the Nation…

Continue Reading Federal Circuit: Takings Claims By Navajo Nation Barred By Statute Of Limitations