With rare exception, we don't cover unpublished, nonprecedential decisions. But we're posting Fuller v. United States, No. 2014-5117 (Mar. 10, 2015), an unpublished opinion from the Federal Circuit, because it reminded us of a presentation by Jim Burling at the recent ALI-CLE Eminent Domain conference, "Novel Takings Theories: Testing the Boundaries of Property Rights Claims."
Jim's presentation didn't focus on cases quite like this one (which was really borderline), where Dr. Fuller, a neurosurgeon and pro se litigant, argued that it was a taking when a dissatisfied patient of his, a marine biologist who was employed by the National Marine Fisheries Service of NOAA (an agency of the Department of Commerce), posted a comment on "runningforums.com" pointing out Dr. Fuller's use of hyaluronidase, which noted that it posed a "remote risk" of transmitting mad cow disease. Doc Fuller sued in California state courts for defamation, and filed a takings claim in the Court of Federal Claims, alleging that the marine biologist's comments were a taking of his medical license without compensation.
Huh?
Turns out the NOAA marine biologist posted her comments from her work computer during work hours, and Dr. Fuller claimed that this was authorized government action, since part of the duty of the Department of Commerce is to protect human health and safety.
The CFC and the Federal Circuit treated this argument with all the respect one might have predicted, holding that the NOAA biologist was acting in her individual capacity and thus there was no government action (and oh, by the way, your medical license is not "property" for Fifth Amendment purposes).
Filler v. United States, No. 2014-5117 (Fed. Cir. Mar. 10, 2015) (unpublished)