Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Brott v. United States, No. 17-712 (U.S. Supreme Court), 858 F.3d 425 (6th Cir. 2017)

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Brott v. United States, No. 17-712 (U.S. Supreme Court), 858 F.3d 425 (6th Cir. 2017)

UPDATE: The Supreme Court has ordered (requested) the Solicitor General to file a response to our petition.

Question presented: May the federal government take an owner’s property in violation of the Fifth Amendment and deny the owner the ability to vindicate his right to be justly compensated in an Article III Court with right to jury trial as provided in the Seventh Amendment?

Eighteen amici curiae parties have filed five amicus briefs in support of the landowner-plaintiffs’ petition for certiorari in Brott v. United States. The Tucker Act requires all Fifth Amendment taking claims against the federal government that exceed $10,000 to be brought in the US Court of Federal Claims (CFC). The CFC is an Article I tribunal, not an Article III court, and the judges serving on the CFC do not enjoy the protections afforded Article III judges. Decisions of the CFC are subject to appeal to the US Court of Appeals for the Federal Circuit.

The landowners’ petition for certiorari is available here.            

Four of the amicus briefs in support are available here, here, here, and here.

The United States unquestionably possesses the power of eminent domain. But the government’s eminent domain power is constrained by the Fifth Amendment’s categorical demand that the government justly compensate the owner. The constitutional guarantee of the right to trial by jury and an Article III court protect the Fifth Amendment’s guarantee of just compensation. But the Tucker Act explicitly denies owners their right to trial by jury when the federal government takes private property in violation of the Fifth Amendment. The Tucker Act further denies owners access to an Article III court when seeking to vindicate their Fifth Amendment right to compensation. The Tucker Act requires all Fifth Amendment taking claims against the federal government exceeding ten-thousand dollars to be brought in the Court of Federal Claims. The CFC is a legislative tribunal, not an Article III court, and the judges serving on the CFC do not enjoy the protections afforded Article III judges.

Twenty-three, mostly minority, Michigan landowners are challenging the Tucker Act’s prohibition on right to trial by jury and the Tucker Act’s denial of their right to bring their Fifth Amendment claim in an Article III court. These Michigan owners filed suit in the Western District of Michigan seeking just compensation and trial by jury. The owners also filed a declaratory judgment action asking the district court to declare these two provisions of the Tucker Act unconstitutional. These Michigan landowners brought a three-count complaint: (1) a “Little Tucker Act” claim under 28 U.S.C. §1346; (2) a Fifth Amendment claim under the district court’s general jurisdiction (28 U.S.C. §1331); and (3) an action for declaratory judgment (28 U.S.C. §2201). The Tucker Act requires the appeal of any Little Tucker Act count to be heard by the Federal Circuit while the Sixth Circuit hears an appeal of the other two counts.

The district court held it lacks jurisdiction to hear a Fifth Amendment claim against the federal government, and held Congress can bar by statute the Seventh Amendment’s guarantee of right to trial by jury. The plaintiffs appealed these claims to the Sixth Circuit. The Sixth Circuit affirmed, holding “landowners are not entitled to consideration of their constitutional claims by an Article III trial court or by a jury.” The Sixth Circuit acknowledged “the Supreme Court has explained that a Fifth Amendment takings claim is self-executing and grounded in the Constitution, such that additional ‘[s]tatutory recognition is not necessary.’” But the Sixth Circuit then held “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.” The Sixth Circuit further held, “property owners could not sue the United States in [an Article III] court to seek just compensation for a taking.”

This case raises core questions similar to those at issue in Oil States Energy Services v. Greene’s Energy Group, which was argued in the Supreme Court on November 27, 2017, and is awaiting the Court’s decision.

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