Not too long ago, we posted the Fifth Circuit's panel opinion in a case where the court held that there's nothing a federal court can do if a local government does not pay a state-court just compensation judgment. We filed an amicus brief in that case arguing "[t]he Takings Clause does not permit the Sewerage Board to take property and hand the owner an IOU the Board might pay sometime in the future if and when it feels like it. Instead, it requires the Sewerage Board to pay the court ordered just compensation without 'unreasonable delay.'"
Well, in the interim we've traded in our amicus hat for a co-counsel hat, and last week asked the Fifth Circuit to rehear the case en banc, via this en banc petition.
Since we're now co-counsel in the case, we won't go into further detail, but will leave it there for you to digest. Here's a summary of the argument:
This Court should consider this case en banc. The panel concluded that it never violates the Fifth and Fourteenth Amendments for a local government to delay paying just compensation after it takes property, no matter how long the delay. Or even if the government outright refuses to pay. The panel affirmed the District Court’s dismissal for failure to state a claim, even though one of the plaintiffs alleged that the Sewerage Board not provided compensation for more than four years. The panel held that federal courts are categorically barred from considering any claim that the government has unreasonably delayed complying with a state-court judgment ordering it to provide just compensation.The panel decision conflicts with decisions of the U.S. Supreme Court. See Fed. R. App. P. 35(a). In Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 688 (1923), the Court held that “the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment.”) (emphasis added). See also Bragg v. Weaver, 251 U.S. 57, 62 (1919) (“it is settled by the decisions of this court” that unless “adequate provision is made for the certain payment of the compensation without unreasonable delay” a taking “contravene[s] due process of law in the sense of the Fourteenth Amendment”). To maintain uniformity and compliance with the Supreme Court, the full court should consider whether an allegation that the government has “unreasonably delayed” providing compensation plausibly pleads a violation of the Fifth and Fourteenth Amendments.
The case also involves a related issue of exceptional importance. See Fed. R. App. P. 35(b). The self-executing nature of the right to just compensation (meaning that no waiver of sovereign immunity is needed for judicial enforcement of the right) distinguishes just compensation judgments from run-of-the-mill judgments against the government which are only justiciable because the government waived immunity.
In sum, a judgment for just compensation that is not paid without undue delay violates the Fifth and Fourteenth Amendments.Pet. at xii-xiii (footnote omitted).
