Here's a case that illustrates the weird results that can occur in takings cases where a property owner can be deemed to be too late (the statute of limitations) or too early (ripeness), take your pick.
In 1996, Mr. Smith got disbarred by the Tenth Circuit and a few other federal courts, and in 1999 by the Colorado Supreme Court as a reciprocal matter. In 2007, he was reinstated in all but the Colorado courts. Because the Colorado court did not reinstate him, however, the U.S. District Court for the District of Colorado reversed itself and denied reinstatement, and in 2010, the Tenth Circuit affirmed. Smith then sued in the Court of Federal Claims under the Tucker Act, seeking damages for due process, equal protection, and -- you guessed it -- a taking. A judicial taking. Smith claimed that his law license was property taken by the federal court.
Now we all know that you get nowhere when you ask the CFC for damages for due process and equal protection violations, so Smith naturally lost in the CFC on those claims. He also lost the takings claim because he didn't file his suit within the six year statute of limitations.
In Smith v. United States, No. 12-5105 (Feb. 22, 2013), the Federal Circuit affirmed. On the due process and equal protection claims, the court held The Tucker Act is not a remedial statute and only gives the CFC jurisdiction to hear a claim for damages against the United States when the substantive law is "money-mandating." Due process and equal protection are not:
The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments do not mandate the payment of money and thus do not provide a cause of action under the Tucker Act. It is equally clear that the Fourteenth Amendment’s Equal Protection Clause does not mandate the payment of money.
Slip op. at 4 (citations omitted).
But what about Smith's judicial takings claim? The Federal Circuit assumed his law license was property, and that the disbarment order might be a taking, but was content to agree with the CFC that Smith's claim was filed outside the six year time limitation. He was disbarred by the federal courts in 1996 and by the Colorado court in 1999, so he had six years from 1999 to file in the CFC, at the latest. He didn't, so he loses.
Smith countered that until the U.S. Supreme Court's ruling in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envt'l Protection, 130 S. Ct. 2592 (2010), there was no such thing as a "judicial takings" claim, and thus the statute of limitations didn't begin to run until the Court issued its opinion. Nice try held the Federal Circuit, the judicial takings cause of action "was recognized prior to Stop the Beach." Slip op. at 5. Citing a law review article which the court concluded "examin[ed] the history and evolution of judicial takings jurisprudence," the court held "the theory of judicial takings existed prior to 2010. The Court in Stop the Beach did not create this law, but applied it." Slip op. at 5-6 (citing Barton H. Thompson, Jr., Judicial Takings, 76 Va. L. Rev. 1449 (1990)).
That's funny, since our read of the Stop the Beach plurality was that there might be such a thing as a judicial taking, but that it was not presented in the Stop the Beach case, and thus the Court didn't so much resolve the issue of whether such a cause of action exists, but reserved it for another day. But we stand corrected: we'll be sure to cite the Federal Circuit's opinion next time we're faced with a 12(b)(6) motion for failure to state a judicial takings claim. The claim has always been viable. Solid.
The Federal Circuit also rejected what seems to us to have been Smith's better claim: that the Tenth Circuit's 2010 affirmation of the district court's rejection of his reinstatement was the event triggering takings liability. The court held that "these decisions were not new takings, for they only reaffirmed the past disbarment decision and maintained the past 1996 and 1999 decisions." Slip op. at 6.
But wait, isn't the takings doctrine premised on the idea that a "taking" isn't even complete until the entity charged with the taking has made a "final decision?" Why, just yesterday, the same Federal Circuit held that a decades-old takings claim was not ripe because the agency might accede to the property owner's request (in that case, to rebuild a bridge). It seems to us that there wasn't a "final decision" by the courts on reinstatement until 2010, and had Smith filed his CFC complaint before the Tenth Circuit affirmed the District Court's rejection of his reinstatement bid, it would likely have been dismissed on ripeness grounds. After all, the Tenth Circuit might have reversed, and ordered reinstatment, no? It seems to us that until that time, Smith's appeal was no different than an administrative process that had not yet run its course.
You just know, however, that if Smith had taken that approach, his takings claim would be dismissed as premature.