Count us in the “not surprised” column: the property owners have sought a panel rehearing or a rehearing en banc from the Federal Circuit in CCA Associates v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).
The petition for rehearing asserts
If any case cried out for en banc review, this is the one. The decisions of this Circuit regarding the effect of the ELIHPA and LIHPRHA statutes are in conflict, not only with each other, but also with settled law on regulatory takings and contract formation. The panel majority acknowledged this conflict but held that it had no choice but to follow the Court’s decisions in Cienega Gardens v. United States, 503 F.3d 1266 (Fed. Cir. 2007) (“Cienega X“) and Ciegega Gardens v. United States, 194 F.3d 1231 (Fed Cir. 1998) (“Cienega IV“).
The exceptionally important issues presented by this petition, including the very viability of temporary regulatory takings in this Circuit, demand uniformity, not conflicting case law. Four years ago, the Court of Federal Claims (“COFC”) bemoaned, after issuance of the Cienega X decision: “[W]hen you get to Cienega X and you still don’t know what to do as a Trial Judge, that’s a problem, and somebody needs to sort it out. It’s beyond this Court’s pay grade to do that.” Trans. at 20-21, Independence Park v. United States, No. 94-10001C (Fed. Cl. Oct 25, 2007). The conflict created by Cienega X still has not been “sorted out,” as confirmed by the panel decision, and will not be sorted out until this Court accepts en banc review.
Petition at 2-3 (footnotes omitted).
If the Federal Circuit doesn’t do something to “sort it out,” will the Supremes? Stay tuned.
Petition for Rehearing/En Banc, CCA Assoc v. United States, No. 2010-5100, -5101 (filed Dec 8 2011)