Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Property Rights Groups File Briefs in Support of Our Case in Brott v. United States


Property Rights Groups File Briefs in Support of Our Case in Brott v. United States

As we recently noted, the government asked the U.S. District Court for the Western District of Michigan to dismiss the claims of landowners in Muskegon, Michigan, based on an incorrect reading of a Civil War-era jurisdictional statute.  Our case has attracted the attention of prominent property rights groups and scholars, two of whom (the Pacific Legal Foundation and the Mountain States Legal Foundation) have filed amicus briefs supporting our position.  A summary of the Pacific Legal Foundation’s brief can be found here and is copied below:

Federal government argues it cannot be sued in federal court for a violation of the Fifth Amendment
July 16, 2015 
By John Groen
In Brott et. al. v. United States, a group of Michigan property owners have brought suit against the United States for a violation of their rights under the Fifth Amendment. They contend that the federal “rails to trails” program has resulted in a taking of their private property without payment of just compensation. But this case presents a much more significant issue than a traditional takings claim.

Normally, takings claims against the United States are required to be filed in the Court of Federal Claims. That presents two intriguing constitutional issues. First, the Court of Federal Claims was created by Congress, so it does not have judges appointed under Article III of the Constitution. Article III judges have life tenure and no diminution in pay. Chief Justice Roberts wrote that this protection is an “inseparable element of our constitutional system of checks and balances” that “both defines the power and protects the independence of our Judicial branch.”

Second, the Court of Federal Claims does not allow for the right of a jury trial. In Brott, however, Michigan citizens contend they are entitled to a jury trial as preserved under the Seventh Amendment. So, rather than bringing their takings claim in the manner dictated by Congress, in the Court of Federal Claims, they instead sued in the United States District Court for the Western District of Michigan. These citizens are thus forcing the issue of whether they have a constitutional right to have their Fifth Amendment claim heard by an Article III judge, and with a right to jury trial.

The United States has not responded on the merits of those issues, but instead filed a motion to dismiss on the ground that the United States is immune from suit except as allowed by Congress. Pacific Legal Foundation filed an amicus brief arguing that in First English Evangelical Church of Glendale v. County of Los Angeles, the Supreme Court rejected the applicability of sovereign immunity to a takings claim. There, the Court ruled that the Fifth Amendment is “self-executing” and that “statutory recognition was not necessary” to bring a claim for compensation.

For those interested in the protection of private property rights, this will be a fascinating case to watch unfold. The Article III and Seventh Amendment right to jury trial issues have been discussed among attorneys and in academia for years, and now this group of Michigan property owners is trying to force the issue. PLF will be right alongside them for the legal battle.


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