Physical Invasion | Yee

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We’re deep in the throes of winter, and spring training won’t start for another month, but for those of you who are fans of the National Pastime — particularly if you are like us and a child of 1970’s baseball — then be sure to check out the U.S. Court of Appeals for the First Circuit’s recent opinion in Clemente Properties, Inc. v. Pierluisi-Urrutia, No. 23-1922 (Jan. 16, 2026).

The court had before it case where the owner of the trademark of the great Roberto Clemente (his family) sued officials of the Commonwealth of Puerto Rico, after the Commonwealth used a likeness of Clemente on commemorative license plates, among other things. The claims included not only Lanham Act, but also a claim for a taking without compensation. The district court tossed both claims.

Most of the opinion is dedicated to the trademark stuff. We’re just country takings…

Continue Reading CA1: Government’s Use Of Roberto Clemente Trademark Isn’t A Categorical Physical Invasion Taking

Here’s the latest in an issue we’ve been following.

In Alban v. United States, No. 23-1363 (Dec. 22, 2025), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’s judgment concluding that the failure of the Corps of Engineers to properly operate two dams, which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

The dams were built nearly 100 years ago to reduce downstream flood risks. The reservoirs are usually dry, and fill up when it rains a certain amount. At the time of construction, the Corps considered acquiring property which would be inundated when the reservoirs filled up to a certain level, but ultimately decided to not do so. The Corps made the decision to acquire only the properties predicted to be flooded in smaller storms. The Corps understood that flooding of additional property was predicted in more…

Continue Reading CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking

In Gould v. Interface, Inc., No. 23-12883 (Oct. 2, 2025), the U.S. Court of Appeals for the Eleventh Circuit was dealing with a claim for wrongful termination of a tech CEO.

So what’s the case doing here? Skip forward to page 12 of the slip opinion, where the court deals with an oft-occurring argument: the appellant “waived” (forfeited, actually) a claim by failing to pursue it below. The general rule is that a litigant can waive a claim, but not an argument.

Okay, got it. But again, why is this opinion posted here? Well, the example the court uses to illustrate the difference between a “claim” and an “argument” is the (in)famous takings case, Yee v. City of Escondido, 503 U.S. 519 (1992). Takings mavens know that Yee is often cited in support of the argument that things like rent control do not force property owners to allow…

Continue Reading A Reminder From CA11: There’s Only A Single Claim For A Regulatory Taking (Although There May Be Several Arguments)

Check this out: a significant and important decision from the U.S. Court of Appeals for the Eleventh Circuit in an issue we’ve been following.

In Alford v. Walton County, No. 2021-13999 (Nov. 17, 2025), the unanimous panel concluded that the county’s Co-19 restrictions, which closed all beaches (public and private) in the county, worked a physical taking of Alford’s private property rights.

In response to the outbreak of Co-19, which the opinion notes was “a novel virus from Wuhan, China,” slip op. at 3, Florida declared a state of emergency, and followed up with an executive order that limited beach access statewide to “no more than 10 persons,” imposed a six-foot separation, among other things. Two days later, the county adopted an ordinance closing all public beaches in the county.

The following month, after the governor issued further executive orders, the county temporarily closed “[a]ll beaches” in the…

Continue Reading CA11: “[T]here is no COVID exception to the Takings Clause”

In State ex rel. Boggs v. City of Cleveland, No. 2025-Ohio-5094 (Nov. 13, 2025), the Ohio Supreme Court held that the City of Cleveland could be liable for inversely condemning land, even though that land is not in the City of Cleveland.

The city claimed that in order to be liable for inverse condemnation, it must have the authority to take the property by eminent domain. And under Ohio law, the state has only delegated to the city the power to take by eminent domain property that is within the city’s geographic boundaries. Therefore, the city argued, if we can’t affirmatively take the plaintiff’s land, we can’t be liable for inversely condemning it.

The case involves the Cleveland airport. As part of its runway expansion, airplanes would fly over adjacent properties (obviously), including properties outside the city’s jurisdiction. The city was authorized to purchase avigation easements on some…

Continue Reading Ohio: City Can Be Liable For Inverse Condemnation Of Land Outside Its Geographic Jurisdiction

When government enters the pharmaceutical market as a participant, it naturally changes the dynamics. But when Congress does this, is it a taking? 

Medicare Part D is a voluntary prescription drug benefit program for Medicare beneficiaries. When Congress first created Part D in 2003, it barred the Centers for Medicare and Medicaid Services (“CMS”) from using its market share to negotiate lower prices for the drugs it covers. But Congress changed course when it enacted the Inflation Reduction Act of 2022 (the “IRA”). The IRA includes a Drug Price Negotiation Program (the “Program”) that directs CMS to negotiate prices over a subset of covered drugs that lack a generic competitor and represent the highest expenditures to the government.

In Bristol Myers Squibb Co. v. U.S. Dep’t of Health & Human Svcs., No. 24-1820 (Sep. 4, 2025), the U.S. Court of Appeals for the Third Circuit held no, it…

Continue Reading CA3: Statute That Leverages Govt Power To Drive Hard Bargains Isn’t A Taking
Darby

Here’s the latest in a case we’ve been following.

The federal government has asked (and been granted), an extension of time in which to file a cert petition in the Darby case.

That’s the one in which the U.S. Court of Appeals for the Federal Circuit allowed a claim that the federal government is liable for a physical taking for the Center for Disease Control’s residential eviction moratorium. The U.S. Supreme Court eventually invalidated the moratorium, and several property owners who were prevented from removing tenants are seeking just compensation. 

There’s nothing particularly earth-shattering about the government seeking more time. Indeed, it is rather routine. But the request included a somewhat unusual peek behind the Solicitor General curtain. We suppose the SG could have just asked for more time, and it would have been granted. But the request included an indication that there’s a bit of contention within…

Continue Reading Is A Gov’t Cert Petition In Darby (Eviction Moratorium Physical Takings) Forthcoming?

Here’s one from the U.S. Court of Appeals for the Federal Circuit, involving ERISA (yikes!), which is the comprehensive federal regulatory framework for employer-provided pension plans, and takings.

In King v. United States, No. 23-1956 (Aug. 8, 2025), pensioners challenged Congress’s 2014 reduction of benefits as a taking, alleging both physical and regulatory theories. As you might expect, there’s a lot going on in this area, and there’s enough ERISA goodness in this opinion to satisfy the most committed maven. Check out pages 3-8 for a pension primer. (And here you thought takings is a complex area.)

The short story is that in 2014 after it “became concerned about the fiscal health of many of the nation’s multiemployer pension  plans,” slip op. at 9, Congress amended ERISA to deal with the actual or threatened insolvency of multiemployer pension funds. What happens if a pension is obligated to pay, but…

Continue Reading Fed Cir: Reducing ERISA Pension Benefits Was Not A Taking

Here’s the latest in an issue we’ve been following.

In Fletcher Properties, Inc. v. City of Minneapolis, No. A23-0191 (July 30, 2025), the Minnesota Supreme Court held that the city barring owners from refusing to rent residential properties to a prospective tenant because the applicant is on public assistance is not a taking. 

What is colloquially known as “Section 8” is a federal program “that provides rent subsides to eligible families … to help them pay for housing in the private market.” Slip op. at 2. This is a voluntary program, both for the tenant receiving the assistance as well as the lessor who enters the program by contracting with the public housing authority.

The City of Minneapolis added discrimination based on a tenant’s receipt of Section 8 assistance to the list of forbidden reasons for refusing to rent to a prospective tenants such as “race, creed, religion, ancestry…

Continue Reading Minnesota: Requiring Landlords To Rent To Tenants On Public Assistance Is Not A Taking