Here's the amicus brief we filed today in support of the Petitioner/property owner in Resource Investments, Inc. v. United States, No. 16-802. That's the case in which the property owner is claiming that the delay in issuing Clean Water Act permits was so extraordinary, it was a temporary taking. Ultimately, the Federal Circuit upheld the dismissal of a takings claim by the Court of Federal Claims 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.The property owners sought cert review, and we filed a brief on behalf of the National Federation of Independent Business Small Business Legal Center, urging the Court to take the case.
Here's a summary of our argument:
SUMMARY OF ARGUMENT
It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.
In no other area of law is President Lincoln’s declaration more applicable than takings, because just compensation is a self-executing constitutional imperative. Property owners must have a forum—whether the Court of Federal Claims or another federal court—to press a Fifth Amendment claim, a right not dependent on a waiver of sovereign immunity, and which cannot be limited by Congress. Yet, the Federal Circuit’s application of section 1500 does just that, by forcing property to choose between obtaining compensation in the CFC, and obtaining nonmonetary relief in a district court, which is often a necessary step to ripening a claim for compensation.
This petition squarely presents the “substantial constitutional question” left open by this Court in United States v. Tohono O’Odham Nation, 131 S. Ct. 1723 (2011). Namely, whether section 1500’s jurisdictional bar can be rigidly applied in takings cases. The question presented here was foreseen in Tohono by Justice Sotomayor:After today’s decision, § 1500 may well prevent a plaintiff from pursuing a takings claim in the CFC if an action to set aside the agency action is pending in district court. This type of plaintiff may face a choice between equally unattractive options: forgo injunctive relief in the district court to preserve her claim for monetary relief in the CFC, or pursue injunctive relief and hope that the statute of limitations on her takings claim, see 28 U.S.C. § 2501, does not expire before the district court action is resolved.
Tohono, 563 U.S. at 323-34 (Sotomayor, J., concurring). That is precisely what happened here to Petitioners, and what will keep recurring until this Court clarifies that the general rule of Tohono does not restrict CFC actions for just compensation.
Until then, Congress’ grant of jurisdiction to the CFC to hear claims for just compensation in excess of $10,000 comes with a severe price tag: in order to pursue such a claim in the CFC, property owners must forfeit their rights to seek all other forms of relief that arise from the same operative facts, whether declaratory, injunctive, or equitable. A statute, however, cannot override the constitutional command to provide just compensation when property is taken, and Congress cannot limit what the Fifth Amendment commands.
Section 1500 should not be read to do so. The statute cannot be applied in a way that deprives property owners of the only forum in which they may seek such damages simply because they may also wish to assert nonmonetary claims, and must split between the CFC and the district courts claims for relief which—but for allocation of jurisdiction between the district courts and the CFC—otherwise could be determined in a single action. Congress did not provide the CFC with jurisdiction to award just compensation, only to condition it on the surrender of the right to pursue other claims for relief.
This brief argues that application of section 1500 to takings cases forces private property owners into an unconstitutional choice: either they must forfeit their ability to challenge the validity of the regulation, or they must surrender their right to seek just compensation. An action asserting the Government unconstitutionally impacts property must be split between the district courts, which have exclusive jurisdiction to entertain claims that the regulations fail to “substantially advance a legitimate state interest” (due process) or is otherwise invalid, and the CFC, which has exclusive jurisdiction to award just compensation (but only after the district court has ruled the regulation valid). These two actions arise from a common set of facts, which means that a later-filed action for just compensation must be dismissed. Thus, under the Federal Circuit’s reading of section 1500, a property owner would be forced either to forfeit the right to challenge the regulation, or forfeit her constitutional right to seek just compensation.
Br. at 2-5 (footnotes omitted).
More posted when it arrives.