Here's one we've been waiting for (we filed a brief in support of the property owner), one in which we were hoping (although not expecting) a more favorable result.
In Brott v. United States, No. 16-1466 (May 31, 2017), the Sixth Circuit held that federal inverse condemnation plaintiffs who sue for more than $10k are not entitled to bring their claims before an Article III tribunal in the first instance, and can be forced by Congress to pursue claims in the Court of Federal Claims. The court also concluded that it wasn't a problem constitutionally for the property owners to not be able to have their claims determined by a jury.
The opinion noted the oft-quoted Supreme Court cases which concluded that the Just Compensation requirement in the Fifth Amendment is "self-executing," that this means that a waiver of sovereign immunity isn't necessary, that once a taking occurs the government must make the owner whole, and that property owners have a "right" compensation. See slip op. at 8-9.
But (and there's always a "but," isn't there), "the landowners' arguments do not persuade us." Because even though you have a "right" to compensation, Congress is not compelled to provide a forum to vindicate or exercise that right, so if it does so by inadequate means (the Article I, non-jury Court of Federal Claims), well, that's good enough:
The Fifth Amendment details a broad right to compensation, but does not provide a means to enforce that right.
Slip op. at 9.
Read that again, and let it sink in. Now, just for laughs, substitute in another right from the Bill of Rights. Let's say religious liberty, or free speech. Think we'd have the same result if Congress either withheld district court jurisdiction over these claims, or relegated them to an executive branch tribunal? We're not so sure. And where do you go to enforce your federal rights, if not the federal courts? Sue the feds in state court for compensation, sort of an inverse Williamson County?
Moreover, according to the court, "history" cuts against the property owners. It used to be that before the creation of the Claims Court (shout out to all those whose Bar certificates were issued, like ours by the "Claims Court"), property owners who had takings claims against the federal government needed to petition Congress for a special bill. Slip op. at 9-10.
Property owners are not entitled to have a jury weigh in either, because takings are "public rights" claims. As the court noted, "[t]hese are claims made my private individuals against the government in connection with the performance of a historical and constitutional function of the legislative branch, namely the control and payment of money from the treasury." Slip op. at 12. Besides, you get your Article III judicial review when the Federal Circuit looks at your facts under a clearly erroneous standard of review. Slip op. at 13-14. Yeah, that seems like a good substitute for a jury (sarcasm alert).
Together, these three rationales meant that to the Sixth Circuit, the Fifth Amendment is self-executing and you have a right to compensation, but it's a right that cannot be enforced without a waiver of sovereign immunity, and on the government's own terms (without a jury). "The Tucker Act's waiver of sovereign immunity, therefore, is a necessary ingredient for just-compensation claims brought against the United States." Slip op. at 11.
Thus, even though the court expressed sympathy to the property owners -- "[w]e certainly appreciate the landowners' desire to have their claims heard in an Article III court and by a jury," slip op. at 15 -- the court concluded that the landowners were entitled to neither.
Will there be a cert petition? For the conclusive answer, you'd have to ask the plaintiffs' lawyers. But we think that is where the case was always heading, and we have heard nothing to inform us otherwise.
Brott v. United States, No. 16-1466 (6th Cir., May 31, 2017)
