Here's the cert petition that along with our colleague Steve Jakubowski we're filing today in Campbell v. United States, No. 19-___, in which we ask the Court to review the Federal Circuit's ruling that the plaintiffs in a Court of Federal Claims takings case missed the Tucker Act's statute of limitations (28 U.S.C. § 2501).
This one focuses on the interplay between Williamson County's "final decision" ripeness rule and the "case and controversy" injury-in-fact standing requirement, and asks: if the government makes its final decision, but the plaintiff isn't injured until later, has there been an actionable taking?
Often, the date on which the government ripens a takings claim by making the final decision to apply the regulation to the plaintiff's property, and the date on which the plaintiff's property rights are actually affected are the same. But here, the two key events happened on different dates. The feds allege they made their final decision to jettison in the GM bankruptcy the plaintiffs' tort and related claims on July 1, 2009. The Federal Circuit accepted the government's assertion that final decision occurred when it uploaded its proposed order to the bankruptcy court. The Federal Circuit held that this was the date that plaintiffs' property was taken,and thus the date that the statute of limitations clock started ticking.
The Federal Circuit, however, rejected the plaintiffs' assertion that their property rights were not actually injured in a concrete way until July 10, 2010, and even though a taking may be prudentially ripe under Williamson County, federal courts also require a plaintiff with standing. That is, a party who has suffered a concrete injury-in-fact.
This is all somewhat detailed (and a bit metaphysical, so rather than try to retell the story, we're just going to cut-and-paste the key parts of the petition.
From the Introduction:
Petitioners’ claims for just compensation arose out of the Government’s acquisition of General Motors’ assets in bankruptcy, “free and clear” of Petitioners’ tort and related successor liability claims. Jettisoning Petitioners—while saving other, more preferred creditors—was a lynchpin of the largest governmental takeover of a private company in American history. The Federal Circuit determined that the submission of a proposed order to the bankruptcy court for consideration—which, when subsequently made effective by the bankruptcy court, would wipe out Petitioners’ claims—was a “final decision” that started the statute of limitations clock ticking on Petitioners’ takings claims, even though Petitioners’ property rights were not actually injured until later.
Contrary to this Court’s established “case and controversy” standing requirement that plaintiffs in every case must allege an injury-in-fact, the Federal Circuit adopted a rule unique to takings claims: “[i]n the case of a regulatory taking, . . . the taking may occur before the effect of the regulatory action is felt . . . .” App. 14 (emphasis added). The Federal Circuit concluded that injury-in-fact is not part of the accrual calculus. This stunning rule—that the statute of limitations starts to run even “before the effect of the regulatory action is felt”—starkly contrasts with the customary accrual rule that a plaintiff may bring suit only after she is actually injured.
A regulatory takings claim cannot accrue before an owner’s property rights are actually injured by the Government’s final action. The Federal Circuit’s conclusion that the clock began ticking even before Petitioners were injured-in-fact brings to mind a variation of a classic Zen parable: if the Government makes a decision but the property owner isn’t actually injured, can the owner sue for a taking?
Here's the Question Presented:
The Federal Circuit concluded that “[i]n the case of a regulatory taking, ... the taking may occur before the effect of the regulatory action is felt.” It held that the Government’s “final decision”—its submission of a proposed order to the bankruptcy court for approval—was an actionable taking. Consequently, the statute of limitations clock started ticking even “before ... the actual damage to the property interest [was] entirely determinable.” The question presented is:Does the Tucker Act’s statute of limitations for a regulatory takings claim accrue when the Government makes a final decision, or when the plaintiff’s property rights are actually injured-in-fact as a result of that decision?
Stay tuned.
Petition for a Writ of Certiorari, Campbell v. United States, No. 19-___ (Apr. 20, 2020)