Hey, that rhymes! Today, in a not-entirely-unexpected move, the U.S. Supreme Court granted cert and agreed to review United States v. Brandt Revocable Trust, No. 09-8047 (Fed. Cir. Sep. 11, 2012).
We say not-unexpected for two reasons. First, the Tenth Circuit expressly noted its ruling created a circuit split (that's catnip to counsel considering a petition). Second, the Solicitor General did not oppose the petitition, but agreed that it should be granted to resolve the split in the government's favor.
The issue in the case 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 it owned the right of way, and that it did not revert to the property owner.
Disclosure: we filed an amicus brief in the case supporting the petition. Our brief argues that the case was an attempt to undercut takings claims in which the plaintiff's rights are based on a patent subject to the 1875 Act, since the government's track record in the Court of Federal Claims and the Federal Circuit isn't very good. Because it has been unable to prevail on a variety of theories in rails-to-trails takings cases in the CFC and Federal Circuit for more than a decade, the government appears to have switched tracks. Instead of continuing its fruitless frontal attacks on these takings claims—efforts that repeatedly have been rebuffed by the courts—the Government in this case has sought to undermine the very notion of property by redefining the "rights of way" granted for railway uses under the 1875 Act from easements that are extinguished when no longer used for a railroad, to "implied reversionary interests." Our brief argues that the government's strategy to redefine property rights based on the 1875 Act will virtually wipe out an entire class of takings claims without justification.
Programming note: the case formally being reviewed is the Tenth Circuit's opinion in the government's quiet title action, and not the Federal Circuit's opinion in a related case as reported by SCOTUSblog (Brandt's claim for compensation, Brandt Revocable Trust v. United States, 710 F.3d 1369 (Fed. Cir. 2013)), which 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 CFC -- was not barred by 28 U.S.C. § 1500. But maybe the Supreme Court will do a "two fer" and resolve both issues?