This one from the Federal Circuit is a must read, particularly for those interested in takings claims where the federal government is involved. But even if that doesn't describe you, we think you should review Ministero Roca Solida v. United States, No. 14-5058 (Feb. 26, 2015), because the issues raised -- especially in Judge Taranto's concurring opinion -- could have impact far beyond the narrow confines of the case.
The core issue is one we've dealt with extensively before, and which the Supreme Court addressed in United States v. Tohono O'odham Nation, 131 S. Ct. 1723 (2011), the effect of 28 U.S.C. § 1500 when the federal government is sued both in the Court of Federal Claims and in a District Court. That statute deprives the CFC of subject matter jurisdiction when there is a case pending in "any other court" against the United States which involves "any claim for or in respect to" the claims raised in the CFC.
In Tohono, the Court construed § 1500 broadly, holding that the statute deprived the CFC of jurisdiction where the two cases are based on the same operative facts, even where the relief sought in each forum is different. There, the Nation sued in the District Court for an accounting, and in the CFC for damages under the Tucker Act. We filed an amicus brief in that case which foreshadowed the issue in Ministero Roca, in which we argued that takings claims should be treated differently, because a property owner's remedies in such cases are required to be split, with claims for injunctive relief or due process raised in district courts, while claims for just compensation pursuant to the Tucker Act must be brought in the CFC. Our brief highlighted the "jurisdictional ambush" that awaits property owners in federal takings claims.
That was precisely the issue in Ministero Roca: the Nevada owner asserted that the feds' diversion of a stream that ran through the property deprived it of water which it was entitled to, and would have "otherwise enjoyed." It filed a complaint in the district court seeking to stop the diversion, and two days later a complaint in the CFC seeking damages for a taking under the Tucker Act. The CFC dismissed without prejudice under § 1500 and Tohono, and the Federal Circuit affirmed.
The Federal Circuit's rationale is spelled out in detail in the panel's main opinion, but boils down to this: Tohono, Tohono, Tohono. Tough to get around that decision, and the panel concluded that the Supreme Court's decision is "binding precedent," the pre-Tohono cases are no longer good law, policy arguments which undercut the Supreme Court's rationale don't mean much, and the case cannot be distinguished. Because the six-year Tucker Act statute of limitations has not expired, the panel rejected the owner's argument that it might be deprived of just compensation if the court affirmed the jurisdictional dismissal. In other words, there's some possibility that the district court action would be resolved in time for owner to fire back up the CFC case. Not much (the SoL runs in August 2016), but some.
Judge Taranto's concurring opinion is where the real action is. He agreed with the result, but spelled out in detail the problems that might arise were a property owner to be deprived of a remedy by the way the three statutes involved here work together, and should the statute of limitations foreclose the just compensation remedy:
To summarize: The combination of three statutes—(1) § 1500 as construed in Tohono; (2) the Tucker Act’s six-year statute of limitations, 28 U.S.C. § 2501, which is jurisdictional and not subject to general equitable tolling and (3) the Little Tucker Act’s $10,000 cap on just compensation claims in district courts, 28 U.S.C. § 1346(a)(2)—threatens to deprive Roca Solida of the opportunity to secure complete relief for what (we must assume on the motion to dismiss) might be a taking of its property. That is because the six-year period allowed for bringing a Tucker Act suit in the Court of Federal Claims (which is not limited by dollar amount) may well end before the § 1500 bar on doing so is lifted by completion of the Nevada district-court action. But if that occurs, Roca Solida may have remedies.
Concurring Op. at 4. If it turns out that the statute of limitations period expires and Roca's claim for just compensation exceeds $10,000 and "a full just-compensation remedy is statutorily unavailable, the district court may be entitled to adjudicate the permanent-taking claim and order return of the property if it finds a taking." Id. at 2. "And if restorative relief is incomplete, as by leaving a temporary taking uncompensated, questions would arise about whether tolling of the statute of limitations might be recognized to avoid unconstitutionality or whether the combination of remedy-depriving statutes is unconstitutional as applied." Id.
Should that occur, Judge Taranto noted that the issues which the property owner raised but which the panel avoided, "will have to be addressed." But because under the present circumstances Roca might be able to get compensation, that day is not yet here.
Fair enough, we suppose, although it seems to us that this is just putting off for another time issues that will inevitably occur. But good for Judge Taranto: the remainder of his opinion is a roadmap to possible arguments, and highlights the squeeze put on property owners by the "Tucker Act shuffle" which we described in our Tohono amicus brief. As we noted at the start of this post, a must-read.
Finally, we note that this case raises some of the same issues in a complaint recently filed in a district court, which seeks a jury and an Article III court in a case for just compensation for a rails-to-trails taking, a claim usually filed in the CFC. Like Judge Taranto here, that complaint correctly asserts the right to just compensation is a constitutional imperative ("the Fifth Amendment’s Takings Clause has long been treated as guaranteeing a just-compensation remedy, not just an underlying right," Judge Taranto wrote), which to us means that statutes cannot limit that right. So it tees up some of the same questions that were raised in Roca Solida, but which the panel avoided, at least for now.