Not much new in the Federal Circuit's opinion in Resource Investments, Inc. v. United States, No. 14-5069 (May 12, 2015), which upheld the dismissal of a Court of Federal Claims takings complaint for lack of jurisdiction under of 28 U.S.C. § 1500.
That statute, as federal takings mavens know (and as the Supreme Court recently held in United States v. Tohono O'odham Nation, 131 S. Ct. 1723 (2011)), deprives the CFC of subject matter jurisdiction if there's a claim based on the same operative facts "pending in any other court any suit or process." In this takings case, the property owner filed its CFC complaint -- which alleged that the feds' denial of a Clean Water Act permit was a taking -- while its lawsuit challenging the permit denial under the Administrative Procedures Act was still pending in the Ninth Circuit. Same underling facts and a pending case in a district court or regional circuit means no CFC jurisdiction under § 1500.
But this passage in the opinion, which counseled property owners caught in the Tucker Act Shuffle to file their CFC complaints before they file anything in a District Court (under Federal Circuit precedent Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965), which concluded that a claim is not "pending" if it is filed later, even nearly contemporaneously), caught our eye:
Resource Investments could have sought relief for its takings claim had it filed its Claims Court action before its district court action, and we need not consider what constitutional issues might be presented if Tecon were to be overruled.
Slip op. at 17 (footnote omitted). So, property owners who want to make takings claims against the federal government, make sure you file your CFC complaint seeking just compensation and only then file your district court action challenging the validity of the action which you claim caused the taking.
What the Federal Circuit overlooked in this piece of advice, however, is that a takings claim in the CFC may not even be ripe until the district court has passed on the validity of the government action which the property owner claims is a taking. In the Resource Investment case, any claim for a taking would likely not be ripe until a court has ruled that the government should have issued the CWA permit (or, it wasn't needed at all, as the court eventually did).
As we pointed out in our amicus brief in Tohono, this is the "jurisdictional ambush" that awaits property owners in federal takings claims. File the CFC complaint first, and you get to respond to a motion to dismiss for ripeness; file the CFC complaint after your takings claims are ripe, and you get hit with a motion to dismiss under § 1500, or you risk missing the statute of limitations.