Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

The Right to Just Compensation under the Fifth Amendment is a ‘Constitutional Imperative’


The Right to Just Compensation under the Fifth Amendment is a ‘Constitutional Imperative’

As takings guru Robert Thomas noted on his Inverse Condemnation blog, Arent Fox’s landmark complaint in Brott v. United States (W.D. Michigan, available here) raises the same constitutional questions raised in Ministerio Roca Solida v. United States (see prior post). However, the US Court of Appeals for the Federal Circuit avoided dealing with those constitutional questions in that decision, “at least for now.” Federal courts will have to confront these issue in Brott v. United States.

Although the Federal Circuit dismissed Ministerio Roca’s claim, Judge Richard G. Taranto discussed (in his concurring opinion) the important constitutional questions raised in the case. The federal government uses certain statutes to deny payment of just compensation to landowners for the property taken from them by limiting the jurisdiction of the US Court of Federal Claims, prohibiting equitable tolling of the statute of limitations, and limiting the amount of damages that can be awarded by US district courts. Judge Taranto stated that if these federal statutes preclude a landowner from obtaining just compensation under the Fifth Amendment, “it might be that the combination [of these federal statutes] should be held unconstitutional…”

Judge Taranto is right and, in Brott v. United States, we assert that those statutory limitations are unconstitutional because they violate the Fifth Amendment’s guarantee of just compensation. We also assert that the Fifth Amendment’s right to just compensation entitles landowners to adjudication of their claims in a US district court in the state in which they live by a jury of their peers (claims over $10,000 must be brought in the US Court of Federal Claims, and all claims for compensation against the federal government are decided by judges without juries).

The US Department of Justice is defending the statutory scheme that denies property owners’ Fifth Amendment rights. We face an uphill battle, but defending property owners’ constitutional rights is well worth the fight.


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