Here’s the Reply Brief in a case we’ve been following, Brott v. United States, No. 17-712, in which the U.S. Supreme Court is being asked to consider whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury. We filed an amicus brief in support of the petition.

The Reply responds to the federal government’s brief in opposition which acknowledged the Just Compensation Clause is “self-executing” and that you have a right to “recover just compensation,” but before you can actually recover compensation, Congress must deign to recognize your Constitutional right by agreeing to be sued. And if Congress can withhold its consent to pay compensation, it surely (in the Government’s view) can dictate the terms on which an owner can recover compensation.And if that means the Court of Federal Claims and no jury, just be thankful property owners that we let you sue at all.

That Orwellian view of “self-executing” squarely conflicts with the Supreme Court’s descriptions of the Government’s obligation to provide compensation for property taken as “categorical” (Arkansas Game & Fish), “not precatory” (San Diego Gas & Elec., Brennan, J., dissenting), an obligation which “could not be taken away by statute or be qualified” (Jacobs v. United States), and one “which it is intended the courts shall enforce” (United States v. Lee). If property owners are really “entitled” (the term the Court used in First English, 482 U.S. at 315), to bring inverse condemnation actions when their property is taken, how can the Government limit its own Constitutional obligation by refusing to allow itself to be sued, or keep property owners from a truly judicial resolution and all that entails by relegating them to the Court of Federal Claims?

The short answer is that it cannot. If you have no forum or remedy, after all, you really have no right.

The Reply brief sets this out very well, and we think its worth your time to read.

With all the briefs now filed, all we can do is wait. Stay tuned. 

Reply Brief for Petitioner, Brott v. United States, No. 17-712 (Mar. 6, 2018)