Professor Josh Blackman's posts over at the Volokh Conspiracy on the bump-stock takings case (and follow ups taking a deeper dive into the takings question, see this post, this post, and this post), got us to thinking. So we wrote up our thoughts, in which we noted that we thought the "self-executing" nature of the Just Compensation Clause means that even in the absence of a Tucker Act waiver of sovereign immunity, the federal government could be sued in an Article III court for compensation ("Lawprof Josh Blackman Asks: "Is there an express cause of action under the Takings Clause?"). This is the position we took in the Brott litigation, where we thought that the Tucker Act is unconstitutional to the extent that it denies a jury trial for compensation claims. But as you know, Brott ended up with "cert denied."
But that also got us to thinking: what if we're wrong, and in order to get an award of compensation or damages from the United States, it first has to agree that it can be sued, and thus any waiver of sovereign immunity such as the Tucker Act can be conditioned any way the sovereign pleases (its good to be king). Then what, are property owners outta luck in getting an Article III judge to consider the case?
But what if the remedy sought is not monetary (not "just compensation," or at least not directly)? We're going to do a bit of thinking out loud here, just to see where it leads us.
First, we've seen cases in which the Supreme Court has recognized that an award of just compensation is not the sole way to raise a takings claim. You can raise it as a defense to some government action ("you can't do X, government, because to do X without compensation would be an unconstitutional taking" - this is more like a rule that government cannot act except in conformity with the constitution than an actual "takings" claim for compensation). The raisin case (Horne v. USDA) is a good example. Another is Kaiser Aetna v. United States, 444 U.S. 164 (1970), where the property owner raised a similar argument in response to the Corps of Engineers' district court lawsuit under the Rivers and Harbors Act. Or, you might raise a takings argument affirmatively by declaratory judgment:
MR. JUSTICE REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under § 1331(a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed.). We disagree. Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that, since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional. As such, appellees' claim tracks quite closely that of the petitioners in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which were brought under § 1331 as well as the Declaratory Judgment Act. See App. in Regional Rail Reorganization Act Cases, O.T. 1974, Nos. 74-165, 74-166, 74-167, 74-168, p. 161. While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here, it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.
Duke Power Co v. Carolina Env. Study Group, Inc., 438 U.S. 60, 71 n.15 (1979)
So that takes care of the remedy, and the notion that just compensation is the sole avenue of relief under the Takings Clause (yes, it's the "Takings" clause as well as the "Just Compensation" clause). Let's call it an equitable remedy for a shorthand.
That gets us to our second point. How do you get beyond the sovereign immunity barrier if the federal government itself hasn't agree to be sued for even that remedy? How about a "takings" lawsuit in an Article III court against the federal official or agency whom the owner says has taken their property, but not affirmatively provided the required just compensation? A mandamus-like remedy directing the official to comply with her ministerial duty to provide compensation in accord with the Fifth Amendment?
We've seen hints of this approach in two Supreme Court cases. The first is the Arlington Cemetery case, United States v. Lee, 106 U.S. 196 (1882). We focused on that case in our Brott amici brief (and in this post). In that case, Custis Lee (Robert E. Lee's son, who would have inherited title to Arlington had General and Mrs. Lee not lost it by tax foreclosure) sued federal officials in Virginia state courts, alleging that they failed to compensate Mrs. Lee after seizing the property during the war. The federal officials removed the case to federal court.
The Supreme Court rejected the officials' sovereign immunity claim, concluding that federal officials could be sued in federal courts because "there is no such thing as a kingly head to the nation, nor to any of the states which compose it." Id. at 205. The Court likened Lee's claim to a petition for a writ of habeas corpus:
Undoubtedly those provisions of the constitution are of that character which it is intended the courts shall enforce, when cases involving their operation and effect are brought before them.The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the government. Ex parte Milligan, 4 Wall. 2. If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law and devoted to public use without just compensation?
Id. at 218-19.
Later, in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the Court picked up on this thread. In a case in which the plaintiff read Lee as allowing federal suits against federal officials if the relief equitable. In that case, the plaintiff sought a declaration that its contract with the feds was valid, and an injunction preventing the government from selling the coal that the plaintiff said it was entitled to buy under the contract to another buyer. The plaintiff asserted that sovereign immunity was no bar. Nice try, held the Court, this is just a routine breach of contract dispute with the government itself, not the officials charged with implementing the contract.
But what about Lee, the plaintiff argued? Sorry, the relief you are seeking is not so much against the defendant officers, but against the federal government itself, the Court concluded. The Court looked at the duty of the officials to act the plaintiff alleged. The source of the duty was the contract between the plaintiff and the government. Thus, the officials were only acting as agents of the government itself. The Court in Larson concluded that Larson was out of luck because he fell within the general rule that you can't sue officials when the relief sought is really against the government itself.
But (and there's always a "but," as Justice Gorsuch pointed out today when during telephone oral arguments today he noted, "there is no rule without an exception"), the Larson opinion pointed out an exception to that general rule based on the source of the official's duty to act:
A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional. Actions for habeas corpus against a warden and injunctions against the threatened enforcement of unconstitutional statutes are familiar examples of this type. Here, too, the conduct against which specific relief is sought is beyond the officer's powers, and is therefore not the conduct of the sovereign. The only difference is that, in this case, the power has been conferred in form, but the grant is lacking in substance because of its constitutional invalidity.
Id. at 690. If the duty to act is sourced in the Constitution, different case.
The Court in Larson referred to Lee as a case like habeas corpus, a "constitutional exception to the doctrine of sovereign immunity." Id. at 696.
United States v. Lee, 106 U. S. 196 (1882), is said to have established the rule for which the respondent contends. It did not. It represents, rather, a specific application of the constitutional exception to the doctrine of sovereign immunity. The suit there was against federal officers to recover land held by them, within the scope of their authority, as a United States military station and cemetery. The question at issue was the validity of a tax sale under which the United States, at least in the view of the officers, had obtained title to the property. The plaintiff alleged that the sale was invalid, and that title to the land was in him. The Court held that if he was right, the defendants' possession of the land was illegal, and a suit against them was not a suit against the sovereign. Prima facie, this holding would appear to support the contention of the plaintiff. Examination of the Lee case, however, indicates that the basis of the decision was the assumed lack of the defendants' constitutional authority to hold the land against the plaintiff.
Id.
In Lee, the taking lacked authority because it was accomplished without a payment of compensation. The Takings Clause prohibits taking property without compensation. Id. at 696-97. The officials who seized Arlington and later who held it did so without authority because compensation had not been provided (ultra vires for you old-timers). Thus, the "possession of the property was an unconstitutional use of [the officials'] power, and was therefore not validly authorized by the sovereign. For that reason, a suit for specific relief, to obtain the property, was not a suit against the sovereign, and could be maintained against the defendants as individuals." Id. at 697.
Got it. Now we have both a equitable-type remedy for takings, and a legal theory to back that up in situations where it is alleged that government officials have taken property, and are wrongly withholding compensation.
And that takes us to our third and final point. How do you get from equitable relief to compensation? What about the way that some states handle inverse condemnation claims. Well, technically they do not recognize inverse condemnation claims. Correct us if we're wrong, but these states (mostly in the midwest, to our knowledge) don't really recognize "inverse condemnation" claims, at least as we in other jurisdictions use that term. Instead of recognizing a direct cause of action for compensation and damages when government has taken property physically or by regulation, these jurisdictions separate the one-step inverse condemnation claim into two different stages. First, the property owner sues for a writ of mandamus, to compel the government to recognize it has taken property and to order it to formally condemn the property by the usual eminent domain process. If the owner is successful, the court orders the government to institute a plain-old eminent domain action to calculate compensation. See, e.g., Moore v. City of Middletown, 975 N.E.2d 977 (Ohio 2012).
There is a lot of appeal in this approach. It is both respectful of theory, but also avoids much of the procedural confusion in inverse cases (for example, what procedures from eminent domain law are applicable to inverse cases?). Would that same approach work under Lee and Larson in an article III federal court?
At least one court has approved of a version of that theory, least against state officials and state governments. In Guerin v. Fowler, 899 F.3d 1112 (9th Cir. 2018), the court held that if proven, state officials’ failure to pay daily interest allegedly skimmed from state-managed retirement accounts was a taking. The plaintiffs did not seek an award of damages, only equitable relief: an injunction ordering the officials to return the wrongly withheld money.
The plaintiffs sued the officials in federal court, but the officials claimed this was really a suit against the State of Washington itself, and not just an equitable suit against the officials, because the ultimate remedy would affect the state treasury. Thus, they argued, the 11th Amendment was a bar to the lawsuit. The court rejected the state’s contention that the plaintiffs “seek monetary damages,” concluding “the [plaintiffs] actually seek an injunction ordering the [state] to return savings taken from them.” Id. at 1120 (“Prospective injunctive relief of this sort is readily distinguishable from a compensatory damages award.”).
Applied in a case where a federal official is claimed to be violating the Fifth Amendment, how about a Lee/Larson claim wrapped up in a Duke Power format brought in a federal district court, for an order to compel a federal official or agency to stop violating the Fifth Amendment and institute an eminent domain lawsuit under Rule 71.1? You might not get a jury to determine the taking, but you would get a jury to consider compensation. After all, if the a right the Court has repeatedly told us is "self-executing," and the government is obligated to provide compensation when the it takes property, pronouncements that the requirement is self-executing seem pretty toothless if the federal government can simply withdraw the Tucker Act at will and say "sorry, no takings claims." Are owners whose property is taken by the feds simply out of luck?
We wrap up with this question. This theory would seem to work in a case where there's been a physical occupation, like Lee. It would also seem worthy of consideration in situations like Guerin, where the officials were accused of wrongfully withholding property (the daily interest on state-managed retirement accounts). But what about in non-possessory regulatory takings cases? There, the officials haven't seized anything concrete (well, except maybe the property owner's right to use property). But the official could be withholding the constitutionally-required compensation if there's been a taking (the very issue the court would be asked to resolve, just like in Lee).
What do you think?
