Here’s the cert petition, recently filed in a case we’ve been following as it has made its way from the Court of Federal Claims and through the Federal Circuit.

The underlying matter was litigated in the District Court and the Fifth Circuit. Those courts concluded that the plaintiff did not own mineral leases in Louisiana because under federal common law, it did not acquire any rights by prescription. The plaintiff then filed a Tucker Act claim in the in the CFC seeking compensation for a judicial taking on the theory that the Fifth Circuit’s ruling altered the plaintiff’s previously-established rights by changing the law.

The CFC accepted that fact as true, but concluded that the CFC has no jurisdiction to tell the Fifth Circuit it was wrong. The Federal Circuit affirmed, and here we are. 

Here’s the Questions Presented by the petition: 

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 560 U.S. 702, 715 (2010), a plurality of this Court held that “[i]f a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation” (emphasis in original). The Takings Clause requires just compensation as the remedy for takings by the government. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314-15 (1987). Under the Tucker Act, 28 U.S.C. § 1491(a)(1), the Court of Federal Claims has exclusive and compulsory jurisdiction over takings claims against the United States for just compensation greater than $10,000. 

The questions presented are:

1. Whether the Takings Clause applies to the decisions of federal courts, and if so, under what circumstances may federal courts review and remedy federal judicial takings claims.

2. Whether the Court of Federal Claims may adjudicate federal judicial takings claims against the United States when the remedy sought is just compensation and not invalidation of another federal court’s decision.

We spelled out our thoughts on the “judicial takings” issue in this law review article: “Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches,” 35 Vt. L. Rev. 437 (2010). 

Stay tuned. Follow along on the Court’s docket here. 

Petition for a Writ of Certiorari, Petro-Hunt LLC v. United States, No. 17-1090 (Feb. 1, 2018)