Remember the Roca Solida case? That's the follow up to the Supreme Court's recent decision in United States v. Tohono O'odham Nation, 131 S. Ct. 1723 (2011), highlighting the jurisdictional problem in takings cases which that case left open. We labeled it a "jurisdictional ambush" that awaits any property owner who has a takings claim against the federal government.
The question presented by the cert petition in Roca Solida is whether 28 U.S.C. § 1500, the statute which deprives the Court of Federal Claims of jurisdiction over a case if a related case is pending in another court at the time the CFC complaint is filed, applies to takings claims. In Tohono O'odham, which was not a takings case, the Court held that the statute prohibited the CFC from taking jurisdiction over the Nation's monetary claim against the United States, when its related claims against the federal government for alleged breaches of its trust duties to the Nation were pending in a district court.
The Supreme Court dodged the jurisdictional question: when a takings claim is involved, can § 1500 be applied to bar such claims where they are required to be split between the CFC and the district courts (aka the "Tucker Act Shuffle")? We filed an amicus brief in Tohono O'odham, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they may be required to file their district court actions first.
The Cato Institute and the National Association of Reversionary Property Owners (those folks under the gun in Rails-to-Trails cases) have filed an amici brief urging review in Roca Solida:
This Court should grant certiorari to clarify the point that Tohono does not (and cannot) be read to hold §1500 may bar owners from vindicating their constitutionally-guaranteed right to just compensation. This is because the Fifth Amendment right of just compensation is self-executing and requires no waiver of sovereign immunity.Br. at 3. The brief is short and to the point, and well worth reviewing in toto.
But we can't resist leaving without pointing out this bit from the brief, a quote from a recent law review article urging reform of § 1500:
Section 1500 is a “judicial embarrassment, a monument to cynicism” and justifies the conclusion that “the law is an ass.”Br. at 10 (footnote omitted) (citing Emily S. Bremer and Jonathan R. Siegel, The Need to Reform 28 U.S.C. § 1500, Administrative Conference of the United States Report at 34-35 (2012)). See also Emily S. Bremer and Jonathan R. Siegel, Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500, 65 Ala. L. Rev. 1, 6-7 (2013) ("Section 1500 has long been subject to widespread criticism. Federal judges have characterized the statute as a “trap for the unwary” that has outlived its purpose.” They have characterized the dismissals § 1500 compels as “neither fair nor rational” and have critiqued “the injustice that often results in the application of this outdated and ill-conceived statute.” They have referred to § 1500’s “awkward formulation,” called it “a badly drafted statute,” and suggested that it would be “salutary” to repeal or amend it. They have criticized the government for using the statute to lay traps for unsuspecting plaintiffs. One judge even remarked that the statute would justify the famous conclusion that “the law is an ass.”).
Stay tuned.
