Here's a new cert petition, filed yesterday, that poses two interesting issues, the first of federalism, the other of exactions.
This is a rails-to-trails case in which the federal government asserts that the easements imposed on private property for a public park in New York City after the railway was abandoned did not result in a taking because the owners signed agreements with the city giving up their rights in exchange for development rights on other parcels. Included within this agreement -- to which the federal government was not a party -- was a covenant not to sue the city or the federal government. When the owners sought compensation in the Court of Federal Claims, the CFC dismissed because the federal government was the third-party beneficiary of the city-owner agreement.
This is a question of New York law, and according to the petition, no New York court has ever allowed a non-party to enforce a covenant not to sue. The CFC decided the issue anyway, ruling also that the surrender of the right to seek compensation in return for development rights was not an unconstitutional exaction.
The Federal Circuit summarily affirmed, and rejected the property owners' call to certifiy the state law question to the New York Court of Appeals.
The Questions Presented:
1. When the resolution of a novel or unsettled issue of New York law would allow the Federal Circuit to avoid deciding a difficult question of federal constitutional law, may the Federal Circuit summarily (and without explanation) decline to certify the issue to the New York Court of Appeals contrary to the principles of judicial federalism and constitutional avoidance underlying this Court’s decisions in Railroad Comm’n of Texas v. Pullman, 312 U.S. 496 (1941), and Arizonians for Official English v. Arizona, 520 U.S. 43 (1997)?
2. When the United States takes an easement from New York landowners pursuant to the National Trails System Act Amendments of 1983, Pub. L. No. 98-11, 16 U.S.C. §§ 1241, et seq., and transfers it to New York City for a park, can the City require the landowners to forfeit their Fifth Amendment right to just compensation as a condition of the City granting owners development rights in their remaining land, or is this an unconstitutional exaction prohibited by this Court’s decisions in Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. John’s River Water Management District, 133 S. Ct. 2586 (2013)?
The petition argues that the Court should "GVR" (grant, vacate, remand), meaning issue summary relief:The Federal Circuit could have, indeed should have, avoided all of these problems simply by certifying the unsettled question of New York law to the New York Court of Appeals. This Court can avoid them too, by granting certiorari, vacating the Federal Circuit’s ruling, and remanding with instructions to certify the state law question to New York’s highest court. In so doing, it would promote the values of federalism and constitutional avoidance, provide clarification to the Federal Circuit about when issues of state law should be certified and ensure this Court’s holdings in Nollan, Dolan and Koontz are faithfully applied.
Pet. at 4. Stay tuned.