Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Michigan Landowners Petition Sixth Circuit Court of Appeals for Rehearing on Critical Constitutional Question

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Michigan Landowners Petition Sixth Circuit Court of Appeals for Rehearing on Critical Constitutional Question

In Brott v. United States, a group of Michigan landowners are courageously demanding their right to a jury trial and right to be heard in a judicial court (instead of a legislative court without a jury) in their lawsuit seeking compensation for the federal government’s taking of their land.

The federal government continues to argue that these families and small businesses are not entitled to a jury trial and that they must bring their takings claims in a legislative court, the U.S. Court of Federal Claims, under a federal law called the Tucker Act.  A three-judge panel of the Sixth Circuit Court of Appeals agreed with the government in a decision available here.  In order to protect their claims, the landowners also filed them in a different lawsuit in the Court of Federal Claims.

The landowners are now appealing their case to all the judges on the Sixth Circuit, a process called “en banc review.”  In support of these landowners and their rights, eight organizations and law professors have filed three amicus (friend of the court) briefs urging the Sixth Circuit to grant en banc review.  These amicus parties include the National Federation of Independent Business, Mountain States Legal Foundation, the Cato Institute, and other stellar groups.  Each of them is urging the court to recognize that the Fifth Amendment’s guarantee of “just compensation” and the Seventh Amendment right to a jury trial are rights that Congress cannot abrogate by statute.

The landowners’ petition for rehearing en banc is available here.  The amicus briefs can be found on Robert Thomas’ highly regarded “inversecondemnation.com” blog at: http://bit.ly/2h4dSLm

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