Property Owners (And Amici) To Sixth Circuit: En Banc Review: "Self-Executing" Compensation Clause Means Congress Doesn't Need To Consent

In Brott v. United States, 959 F.3d 425 (6th Cir. May 31, 2017), a Sixth Circuit panel -- after acknowledging the Fifth Amendment right to just compensation is "self-executing" -- held that it really wasn't: the federal government can take private property but the owner can only recover compensation if Congress agrees to allow them to do so. Thus, takings plaintiffs must try their cases in the Article I Court of Federal Claims, and do not merit a jury trial in an Article III court.

The property owners/plaintiffs have now sought en banc review:

After the panel issued its opinion, the Supreme Court granted certiorari in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 639 Fed. Appx. 639 (2016), cert. granted, 2017 WL 2507340 (June 12, 2017). In Oil States the Supreme Court will decide “[w]hether inter partes review violates Article III or the Seventh Amendment by authorizing an Executive Branch agency, rather than a court or jury, to invalidate a previously issued patent.” Oil States will decide whether an individual’s interest in property is a “public right” and whether Congress may deny an owner access to an Article III court with jury trial to vindicate this property interest.

Rehearing is appropriate because “the panel’s decision conflicts with a decision of the United States Supreme Court” and “consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions.” Rehearing is also appropriate because this appeal raises “questions of exceptional importance.” Fed.R.App.P. 35(a)(2).

The panel’s decision conflicts with a series of Supreme Court decisions, including Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893), City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999), Stern v. Marshall, 564 U.S. 462 (2011), and Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

Several amici (including us, see the final brief below), have requested, and been granted, leave to file 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 Saxee (ours)

Stay tuned.