Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Robert Thomas: “Congress Cannot Limit Property Owners’ Rights to ‘Just Compensation’ by Narrowing the Court of Federal Claims Jurisdiction, Especially with an Absurd Statute”

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Robert Thomas: “Congress Cannot Limit Property Owners’ Rights to ‘Just Compensation’ by Narrowing the Court of Federal Claims Jurisdiction, Especially with an Absurd Statute”

As our friend and takings law expert Robert Thomas noted today here, Congress, by statute, cannot limit the Constitution’s guarantee that landowners receive “just compensation” when the government takes their property.

This is the issue in the case, Ministerio Roca Solida v. United States, which is on appeal to the U.S. Supreme Court.  Our Federal Takings team recently filed an amicus brief (available here) in this case in support of the property owner, who has been denied relief by the lower courts and the government.  The government claims that a federal jurisdictional statute, 28 U.S.C. § 1500, which was enacted after the Civil War in response to duplicative lost-cotton claims in the South, bars Roca Solida and other property owners from seeking compensation in the U.S. Court of Federal Claims for the taking of their property when they have filed a “related” claim in another federal court.  The government is now using § 1500 to deny property owners relief in both U.S. district courts and the Court of Federal Claims.  See our prior post here.

Our brief points out that judges and legal scholars alike have commented that “Section 1500 is a ‘judicial embarrassment, a monument to cynicism,” and justifies the conclusion [quoting Charles Dickens] that “the law is an ass.”  See Emily Bremer & Jonathan Siegel, The Need to Reform § 1500, Administrative Conference of the United States Report (September 2012).

The Conference Report continues:  “Federal judges have characterized [§1500] as a ‘trap for the unwary’ that has ‘outlived its purpose.’  They have characterized the dismissals Section 1500 compels as ‘neither fair nor rational’ and have critiqued ‘the injustice that often results in the application of this outdated and ill-conceived statute.’  They have referred to Section 1500’s ‘awkward formulation,’ calling it ‘a badly drafted statute,’ and suggested that it would be ‘salutary’ to repeal or amend it.  They have criticized the government for using the statute to lay traps for unsuspecting plaintiffs.”

We agree.

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