Here’s the amici brief filed last week by the Cato Institute and the National Association of Reversionary Property Owners 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.
We also filed an amicus brief in the case (posted here).
Here’s a summary of the Cato/NARPO brief:
In United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), this Court considered 28 U.S.C. 1500, a Civil War-era statute intended to relieve the United States from responding to duplicative litigation in multiple courts. The Tohono majority found that Section 1500 barred the Court of Federal Claims (CFC) from taking jurisdiction of a matter when another case arising from the same operative facts was already pending at the time the case was filed in the CFC. 131 S. Ct. at 1731-32. Importantly, Section 1500 was never intended to be a device allowing the federal government to escape its lawful obligation by denying persons the ability to pursue a meritorious claim against the United States.
But, because the CFC is a court of limited jurisdiction unable to entertain equitable, tort and other claims, the government has exploited Section 1500 and Tohono as a procedural device to deny owners whose property the government has taken the ability to pursue otherwise meritorious claims. In combination with other provisions of the Tucker Act, the government is using Section 1500 not as a shield to avoid duplicative litigation but as a sword to escape its statutory and constitutional obligations. Judge Taranto of the Federal Circuit explained that Section 1500 gives rise to “a substantial constitutional question.” Ministerio Roca Solida v. United States, 778 F.3d 1351, 1357 (Fed. Cir. 2015) (Taranto, J., concurring). Members of this Court, numerous lower federal judges, senators, and academics describe Section 1500 as a “purposeless” statute that creates a “judicial quagmire.”
Resource Investment’s and Land Recovery’s (Resource Investment) petition for certiorari provides this Court opportunity to cabin Section 1500 and confirm that this Court’s holding in Tohono applies only to congressionally-created claims and not to Fifth Amendment takings claims arising directly under the Constitution. We address Resources Investment’s second question, whether Section 1500 can preclude an owner’s constitutional right to just compensation guaranteed by the Fifth Amendment.
Br. at 2-3 (footnotes omitted).
More on the brief and case here, from the Cato Institute’s blog. The brief was authored by Ilya Shapiro for Cato, and Thor Hearne and Stephen Davis.
The Solicitor General has waived the right of response, but last time this issue was presented to the Court in Ministerio Roca Solida, the SG also waived response and the Court invited one, even though the Court eventually denied cert.
We think this case is teed up even better than Ministerio Roca Solida, and squarely presents the problem with the statute, and how it operates, in conjunction with the six-year statute of limitations, to force property owners into an unconstitutional choice.
Brief for the Cato Institute and the Nat’l Ass’n of Reversionary Property Owners as Amici Curiae…