Fifth Circuit: "the United States’s sovereign immunity can bar cases against it based on the Takings Clause"

Here's the latest case in an issue we've been tracking, whether takings plaintiffs who bring major claims for just compensation against the federal government must do so in the Article I Court of Federal Claims, or can bring the claim in an Article III district court. The Sixth Circuit recently held that the feds have sovereign immunity, and have only consented to be sued in the CFC. That court also held that there's no right to jury trial on a takings claim against the feds. [See 7/24/2017 update, below]

In Sammons v. United States, No. 17-50201 (June 19, 2017), the U.S. Court of Appeals for the Fifth Circuit effectively adopted that same reasoning. In a short opinion, it held that takings claims involve "public rights," and therefore, Congress may validly assign adjudication of those rights to non-Article III courts. Like the Sixth Circuit, the Fifth Circuit panel rejected the owner's contention that the Takings Clause is self-executing, and thus Congress' consent to be sued isn't necessary. It did so without really reaching the merits of the argument: "But whatever the merits of the parties' positions, the issue is foreclosed." Slip op. at 4. The panel held that it was already circuit precedent that the Takings Clause was not a waiver of sovereign immunity, and "[i]t is well-established in this circuit that one panel of this Court may not overrule another." Slip op. at 5. 

Which boots the issue upstairs. So you know where this issue is headed. 

Update: 7/24/2017: In Brott v. United States (the Sixth Circuit case which referenced above, the property owner has sought en banc review, and several amici (including us) have filed briefs in support:

• Petition for Rehearing En Banc (Plaintiffs)
• Amicus Brief of Mountain States Legal  Foundation and Prof. James Ely
• Amici Brief of NFIB Small Business Legal Center, Cato Institute, and Southeastern Legal Foundation
• Amici Brief of Nat. Ass'n of Reversionary Property Owners, the Property Rights Foundation of America, Professor Shelley Ross Saxer

Sammons v. United States, No. 17-50201 (5th Cir. June 19, 2017) 

Related articles

Amici Brief In § 1500 Case: Congress Cannot Limit Property Owners' Rights To Just Compensation By Narrowing CFC Jurisdiction, Especially With An Absurd Statute

Here's Why The Supreme Court Held The Raisin Marketing Order Was Unconstitutional...

New Article: "Eminent Domain in The Aftermath of Hurricane Katrina"

AIG/Starr Round-Up