Here's the latest in a case we've been following since its inception, Brott v. United States, the case which asks the deceptively simple question of whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury.
The District court said no, as did the Sixth Circuit. The property owners' cert petition asks this question:Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?
We filed an amicus brief in support, arguing that the "self-executing" nature of the Just Compensation Clause means that yes, property owner, you can bring a lawsuit for compensation if the government has taken your property:
The government does not enjoy its usual sovereign immunity when it takes property, either affirmatively or inversely, and this Court has repeatedly confirmed that the Just Compensation Clause is “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (“We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of ‘the self-executing character of the constitutional provision with respect to compensation.”).
Initially, the government waived the right of response, but at least one Justice requested that the SG weigh in. It now has, filing its Brief in Opposition a couple of days ago.
Our quick skim reveals that the BIO takes the same approach as the Sixth Circuit: acknowledging the "self-executing" nature of the Just Compensation Clause (as it must, since the Supreme Court has said that in First English) but then arguing that even if the right to compensation is automatically triggered upon a taking, the federal government can effectively eliminate that right by refusing to waive sovereign immunity. And because it can refuse to be sued, the federal government can limit how it is sued, and therefore the non-jury, non-Article III Tucker Act process is just fine:
First English thus concluded that the Fifth Amendment is self-executing in that it creates a right to compensation for a taking. But “the fact that the Fifth Amendment creates a ‘right to recover just compensation,’ does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages.” Pet. App. 13a (quoting First English, 482 U.S. at 315) (citation omitted). To recover money damages against the United States, a plaintiff must identify both a waiver of sovereign immunity and a “substantive right enforceable against the United States for money damages.” Mitchell, 463 U.S. at 216 (citations omitted); see Pet. App. 14a. The Tucker Act waives sovereign immunity, but does not create any substantive rights. Mitchell, 463 U.S. at 216. Instead, “[a] substantive right must be found in some other source of law, such as ‘the Constitution, or any Act of Congress.’ ” Ibid. (quoting 28 U.S.C. 1491).
BIO at 17-18.
We'll post the Reply when filed.
Brief for the United States in Opposition, Brott v. United States, No. 17-712 (Feb. 21, 2018)
