Opposition Brief — Petro-Hunt, LLC, Petitioner v. United States

No. 17-1090

In the Supreme Court of the United States

PETRO-HUNT, LLC, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. WOOD

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

BRIAN C. TOTH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner may obtain compensation in the

Court of Federal Claims for an asserted taking of private property by a federal court of appeals.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Boise Cascade Corp. v. United States, 296 F.3d 1339

(Fed. Cir. 2002), cert. denied, 538 U.S. 906 (2003) .... 12, 13

Central Pines Land Co. v. United States, 274 F.3d

881 (5th Cir. 2001), cert. denied, 537 U.S. 822

(2002) ................................................................................ 6, 11

Edwards v. Blackman, 137 S. Ct. 52 (2016)........................ 15

First English Evangelical Lutheran Church v.

County of L.A., 482 U.S. 304 (1987) .................................... 9

Frost-Johnson Lumber Co. v. Salling’s Heirs,

91 So. 207 (La. 1920) ............................................................. 3

Gibson v. American Cyanamid Co., 760 F.3d 600

(7th Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015)......... 14

L.D. Drilling, Inc. v. Northern Natural Gas Co.,

138 S. Ct. 747 (2018) ........................................................... 14

Lazy Days’ RV Ctr., Inc., In re, 724 F.3d 418

(3d Cir. 2013) ....................................................................... 14

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992).............................................................. 9

Nies v. Town of Emerald Isle, 138 S. Ct. 75 (2017) ........... 14

Petro-Hunt, L.L.C. v. United States:

543 U.S. 1034 (2004) .................................................... 6, 11

552 U.S. 1242 (2008) .......................................................... 6

(III)

IV

Cases—Continued:

Page

365 F.3d 385 (5th Cir.), cert. denied,

543 U.S. 1034 (2004) ...................................... 2, 5, 6, 11

No. 06-30095, 2007 WL 715270 (5th Cir. Mar. 6,

2007), cert. denied, 552 U.S. 1242 (2008) ............. 6, 11

PPW Royalty Trust v. Barton, 841 F.3d 746

(8th Cir. 2016), cert denied, 137 S. Ct. 1596 (2017).......... 14

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ........ 12

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 10

Sanders v. Belle Exploration, Inc., 481 Fed. Appx.

98 (5th Cir. 2011) ................................................................. 14

Shinnecock Indian Nation v. New York, 136 S. Ct.

2512 (2016) ........................................................................... 15

Smith v. United States, 709 F.3d 1114 (Fed. Cir.),

cert. denied, 134 S. Ct. 259 (2013) ............................... 13, 14

Stop the Beach Renourishment, Inc. v. Florida Dep’t

of Envtl. Prot., 560 U.S. 702 (2010) ............6, 7, 9, 10, 15, 16

United States v. Little Lake Misere Land Co.,

412 U.S. 580 (1973).................................................. 2, 3, 4, 11

United States v. Nebo Oil Co., 190 F.2d 1003

(5th Cir. 1951) .............................................................. 2, 4, 11

Vandevere v. Lloyd, 644 F.3d 957 (9th Cir.),

cert. denied, 565 U.S. 1093 (2011) ..................................... 14

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 15

Constitution, statutes, and rule:

U.S. Const.:

Art. I ............................................................................. 7, 12

Art. III .................................................................... 7, 12, 13

Amend. V ...................................................................... 6, 10

Just Compensation Clause ........................... 6, 8, 9, 10

Endangered Species Act of 1973, 16 U.S.C. 1531

et seq. .................................................................................... 12

V

Statutes and rule—Continued:

Page

Migratory Bird Conservation Act, 16 U.S.C. 715

et seq. ...................................................................................... 4

Weeks Law, ch. 186, 36 Stat. 961 ........................................... 3

28 U.S.C. 1254 ........................................................................ 12

28 U.S.C. 1491-1509 ............................................................... 12

1940 La. Acts 1249 ................................................................... 3

1940 La. Acts 1250 ............................................................... 3, 4

La. Rev. Stat. Ann. (2000):

§ 31:21 ................................................................................. 3

§ 31:27(1) ............................................................................ 3

Fed. R. App. P. 35.................................................................. 12

In the Supreme Court of the United States

No. 17-1090

PETRO-HUNT, LLC, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-32a)

is reported at 862 F.3d 1370. The opinion of the United

States Court of Federal Claims (Pet. App. 33a-73a) is

reported at 126 Fed. Cl. 367.

JURISDICTION

The judgment of the court of appeals was entered on

July 17, 2017. A petition for rehearing was denied on

October 3, 2017 (Pet. App. 74a-75a). On December 15,

2017, the Chief Justice extended the time within which

to file a petition for a writ of certiorari to and including

February 1, 2018, and the petition was filed on that

date. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Petitioner is the successor-in-interest to companies

that owned mineral servitudes affecting lands acquired

(1)

2

by the United States for a national forest. See Pet. App.

3a-7a. At the time the United States acquired that land,

Louisiana law provided that rights to extract minerals

from land revert to the owner of the land if the mineral

rights are not used for a certain period of time. Id. at

3a. The Louisiana legislature subsequently changed

that law with respect to land owned by the United

States, id. at 4a, and the Fifth Circuit originally held

that the new state law could be retroactively applied

against the United States with respect to one parcel of

land, United States v. Nebo Oil Co., 190 F.2d 1003, 10061010 (1951). This Court later held that federal common

law—not state law—governs mineral rights on federal

land acquired under a particular statute, and that Louisiana’s change in mineral-rights law could not be retroactively applied against the United States with respect to

land acquired under that statute. United States v. Little

Lake Misere Land Co., 412 U.S. 580, 592-597 (1973).

Petitioner sued the United States in federal district

court, asserting that it owned certain mineral rights on

federal forest land pursuant to the Fifth Circuit’s 1951

decision in Nebo Oil. Pet. App. 7a. The district court

granted summary judgment to petitioner, see id. at 8a,

but the Fifth Circuit reversed, holding that its decision

in Nebo Oil bound the United States only with respect

to the single parcel at issue in that case, and that this

Court’s subsequent decision in Little Lake Misere otherwise precludes the retroactive application of Louisiana’s

revised mineral-rights law against the United States,

Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 398399 (5th Cir.), cert. denied, 543 U.S. 1034 (2004). Petitioner then asserted a claim in the United States Court

of Federal Claims (CFC) contending that the Fifth Circuit’s decision operated as a taking of its property with

3

respect to its asserted mineral rights on parcels affected by the Fifth Circuit’s ruling. Pet. App. 11a. The

CFC held that it lacked jurisdiction over petitioner’s

claim. Id. at 55a-73a. The court of appeals affirmed.

Id. at 28a-32a.

1. Under longstanding Louisiana law, mineral rights

in real property may not be owned separately from the

land; they may be owned only as a right of servitude to

enter the land and extract the minerals. La. Rev. Stat.

Ann. § 31:21 (2000); see Little Lake Misere, 412 U.S. at

583 n.2; Frost-Johnson Lumber Co. v. Salling’s Heirs,

91 So. 207, 243-245 (La. 1920). Such mineral servitudes

ordinarily prescribe—that is, revert to the landowner—

if not used for ten years. La. Rev. Stat. Ann. § 31:27(1)

(2000); see Little Lake Misere, 412 U.S. at 583 n.2;

Frost-Johnson, 91 So. at 243-245.

Between 1934 and 1937, the United States acquired

multiple parcels of forest land in Louisiana from two

timber companies. Pet. App. 3a. The government acquired the land pursuant to the Weeks Law, ch. 186,

36 Stat. 961, for purposes of including it in the Kisatchie

National Forest, Pet. App. 35a. The land acquired by

the government was burdened by 96 separate mineral

servitudes in favor of Good Pine Oil, each of which was

subject to a ten-year prescription period. Id. at 3a.

2. a. In 1940, the Louisiana legislature enacted Act

315, which altered the status of mineral rights on federal

land. 1940 La. Acts 1249; see Little Lake Misere, 412 U.S.

at 584; Pet. App. 4a n.1 Specifically, Act 315 provided

that when the United States acquires land subject to a

mineral servitude, the servitude is “imprescriptible”—

i.e., the servitude will not revert to the landowner—

even if unused for more than ten years. 1940 La. Acts

1250. The law, moreover, applied retroactively to all

4

servitudes on federal land that had not yet prescribed,

even if the government acquired the land before enactment of Act 315. Ibid.; see Pet. App. 4a.

The effect of Act 315 was tested in 1948, when the

United States filed a declaratory judgment action against

Nebo Oil—a successor-in-interest to Good Pine Oil—

contending that the mineral rights on an 800-acre parcel

of land acquired by the government in 1936 had prescribed to the United States because the mineral rights

had not been used for more than ten years. Pet. App.

4a; see Nebo Oil, 190 F.2d at 1005-1006. The district

court denied the United States relief, and the Fifth Circuit affirmed, holding that Act 315 had rendered the

mineral rights on that 800-acre parcel “imprescriptible.”

Nebo Oil, 190 F.2d at 1006; see id. at 1006-1010.

b. This Court subsequently considered the effect of

Act 315 in Little Lake Misere. There, the United States

had acquired two parcels in Louisiana under the Migratory Bird Conservation Act (MBCA), 16 U.S.C. 715 et

seq. See 412 U.S. at 582. The Little Lake Misere Land

Company contended that its mineral servitudes on those

parcels were imprescriptible under Act 315. Id. at 582584. This Court rejected the company’s position, holding that federal land acquisitions under the MBCA are

governed by federal common law, not state law, and that

applying Act 315 to federal land acquired before its enactment would deprive the government of “bargainedfor contractual interests” and be “plainly hostile to the

interests of the United States.” Id. at 597; see id. at

592-597. The Court accordingly held that the mineral

servitudes had prescribed to the United States after ten

years of non-use. Id. at 604. The Court cited but “did

not overrule” the Fifth Circuit’s decision in Nebo Oil.

Pet. App. 5a.

5

3. a. Petitioner is a successor-in-interest to Nebo

Oil. See Pet. App. 7a-8a, 38a. In 2000, petitioner sued

the United States in the District Court for the Western

District of Louisiana seeking a declaration that it owns,

by virtue of Act 315 and the Fifth Circuit’s decision in

Nebo Oil, all 96 of the mineral servitudes on the land the

United States acquired from the two timber companies

to include in the Kisatchie National Forest in the 1930s.

Id. at 7a. The government conceded that the one servitude at issue in Nebo Oil was governed by that case’s

judgment that the servitude was imprescriptible. But

the government, relying on Little Lake Misere, argued

that the remaining 95 servitudes were subject to the ordinary rule of prescription that predated Act 315. See

Petro-Hunt, 365 F.3d at 394 & n.49, 396 n.58.

The district court granted summary judgment to petitioner based on what it concluded was the preclusive

effect of Nebo Oil, but the court of appeals reversed.

Petro-Hunt, 365 F.3d at 397-399. The court of appeals

held that claim preclusion did not bar the United States

from asserting that the 95 servitudes not at issue in

Nebo Oil had prescribed, because claim preclusion applies only if two actions are based on the “same claim,”

and the different parcels of land involved different

claims. Id. at 395. Likewise, the court held that issue

preclusion did not bar the government from contesting

Act 315’s applicability, because Nebo Oil did not address the threshold choice-of-law issue identified in Little Lake Misere, and because issue preclusion does not

apply when there has been a change in controlling legal

principles, as occurred in Little Lake Misere. Id. at 397399. The court further noted that it had applied the

holding of Little Lake Misere, rather than Nebo Oil, in

another recent case involving federal acquisitions of

6

land for the Kisatchie National Forest under the Weeks

Law. Id. at 393; see Central Pines Land Co. v. United

States, 274 F.3d 881, 885-892 (2001), cert. denied, 537

U.S. 822 (2002). The court accordingly determined that

Little Lake Misere and Central Pines were controlling,

and that Act 315 could not bar the government from invoking prescription with respect to servitudes created

before its enactment. Petro-Hunt, 365 F.3d at 398-399.

Petitioner filed a petition for a writ of certiorari contending, inter alia, that allowing the Fifth Circuit’s decision to stand would result in an uncompensated taking

of property in violation of the Fifth Amendment. See Pet.

at 30, Petro-Hunt, L.L.C. v. United States, 543 U.S. 1034

(2004) (No. 04-190). This Court denied review. PetroHunt, L.L.C. v. United States, 543 U.S. 1034 (2004).

b. On remand, the parties stipulated that five servitudes had remained in use since the 1930s and therefore

had not prescribed to the United States, while the rest

had prescribed to the United States. Petro-Hunt, L.L.C.

v. United States, No. 06-30095, 2007 WL 715270, at *1

(5th Cir. Mar. 6, 2007) (per curiam). The court of appeals affirmed. Id. at *3. This Court again denied review. Petro-Hunt, L.L.C. v. United States, 552 U.S.

1242 (2008) (No. 07-563).

4. a. Petitioner filed suit in the CFC alleging an

uncompensated taking of its interest in the mineral servitudes. The court dismissed most of petitioner’s claims

as time-barred. 90 Fed. Cl. 51, 65-67. Petitioner then

amended its complaint to add a judicial-takings claim

after this Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental

Protection, 560 U.S. 702 (2010), in which four Justices

indicated that a state-court decision may constitute a

taking in violation of the Just Compensation Clause by

7

“declar[ing] that what was once an established right of

private property no longer exists,” id. at 715 (plurality

opinion); but see id. at 733-734 (Kennedy, J., concurring

in part and concurring in the judgment) (declining to

reach the judicial-takings issue); id. at 742 (Breyer, J.,

concurring in part and concurring in the judgment)

(same). Specifically, petitioner argued that the Fifth

Circuit’s decision holding that Little Lake Misere, rather than Nebo Oil, governed the treatment of the mineral servitudes on the government’s land had taken its

property without just compensation. See Pet. App. 41a.

b. The CFC dismissed petitioner’s judicial-takings

claim for lack of jurisdiction. Pet. App. 60a. The court

explained that adjudicating that claim would require it

to decide whether “the Fifth Circuit was correct in its

finding that Little Lake Misere and Central Pines,” rather than its earlier decision in Nebo Oil, controlled and

“established that lands sold to the United States before

the enactment of Act 315, like the surface lands in question here, were subject to Louisiana’s ten-year prescription rule.” Id. at 70a. Because the CFC is an Article I

court that lacks jurisdiction to review whether an Article III court of appeals “correctly interpreted its own

precedent,” the CFC held that it “lacks jurisdiction over

[petitioner’s] judicial takings claim.” Ibid.

c. The court of appeals affirmed. Pet. App. 1a-32a.

Like the CFC, the court of appeals found it unnecessary

to address the general availability of judicial-takings

claims, because it concluded that the CFC lacked jurisdiction over the claim asserted by petitioner. Id. at 28a32a. To resolve petitioner’s claim, the court explained,

the CFC “would necessarily have to review the Fifth

Circuit’s decision to decide whether [petitioner] ever

8

had a cognizable property interest in perpetual ownership of the servitudes,” and that would require the CFC

to “determine the res judicata or collateral estoppel effect of Nebo Oil,” which the Fifth Circuit had already

done. Id. at 29a. Because “finding that the Fifth Circuit’s decision was in error” is “something [the CFC]

has no jurisdiction to do,” the court upheld the dismissal

of petitioner’s judicial-takings claim. Id. at 31a.

ARGUMENT

Petitioner contends (Pet. 14-31) that this Court’s

review is warranted to determine whether and how a

federal-court decision can give rise to a takings claim.

The courts below, however, did not address that broad

question. They instead held that petitioner lacked a cognizable property interest in the property allegedly taken,

and that the CFC had no jurisdiction to review the Fifth

Circuit’s decisions on that issue. The decisions below

are correct, and there is no conflict among the courts of

appeals on the question presented. In addition, this

Court has already denied petitioner’s request for review

of the claim that it asserts here. Further review is accordingly unwarranted. 1

1. The Just Compensation Clause of the Fifth

Amendment provides that “private property” shall not

“be taken for public use, without just compensation.” In

the long history of its jurisprudence under the Clause,

this Court has never held that a judicial decision effected a taking of property. And no court has ever held

that a federal-court decision produced such a result.

There are good reasons for that dearth of authority.

The petition for a writ of certiorari in Stanford v. United States,

No. 17-809 (filed Dec. 1, 2017), presents a similar question.

1

9

The Framers understood the Just Compensation

Clause as confined to the government’s physical appropriation of private property for public use by eminent

domain. See, e.g., Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1028 n.15 (1992). The power of

eminent domain was traditionally reserved to the legislature, which could decide both whether to take property and whether to pay compensation. See, e.g., First

English Evangelical Lutheran Church v. County of

L.A., 482 U.S. 304, 321 (1987). Over time, legislatures

granted executive officials authority to exercise eminent domain and to regulate property in other ways,

and this Court determined that the Just Compensation

Clause can apply to regulatory as well as physical takings. See Lucas, 505 U.S. at 1014. But the powers to

take property and pay compensation have remained

“vested in the political branches and subject to political

control,” while the judiciary “historically has not had

the right or responsibility to say what property should

or should not be taken.” Stop the Beach Renourishment,

Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 739,

742 (2010) (Kennedy, J., concurring in part and concurring in the judgment). Allowing takings claims on the

premise that a judicial decision standing alone can take

property requiring the payment of just compensation

would break sharply with historical practice and raise

significant separation-of-powers concerns. See id. at

739. At a minimum, the Court should proceed with caution before adopting such an approach.

2. As petitioner observes (Pet. 15-18), this Court in

Stop the Beach considered whether a state-court decision interpreting state-law property rights could give

rise to a takings claim. 560 U.S. at 707. The Court, how-

10

ever, did not provide an answer. Four Justices indicated that a takings claims may arise from a state-court

decision under some circumstances, see id. at 713-715

(plurality opinion), but the Court resolved the case on

the unanimous ground that no taking had occurred because the plaintiffs had no “established property rights”

in the property allegedly taken, id. at 733 (majority

opinion); see ibid. (Kennedy, J., concurring in part and

concurring in the judgment); id. at 742 (Breyer, J., concurring in part and concurring in the judgment).

The courts below resolved this case on the same

ground—that petitioner had no “cognizable property interest” that would give rise to a takings claim. Pet. App.

29a. The courts accordingly did not address the propriety of federal judicial-takings claims as a general matter. The decisions below are correct, and petitioner

identifies no substantial reason for this Court to review

those decisions or consider any broader questions about

federal judicial-takings claims in the first instance.

a. By its terms, the Just Compensation Clause applies only to a taking of “private property.” U.S. Const.

Amend. V. A successful takings claim thus requires as

a threshold matter the assertion of a “cognizable property interest” in the property allegedly taken. Pet. App.

29a; see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S.

986, 1000-1004 (1984) (discussing cognizable property

interests); accord Stop the Beach, 560 U.S. at 733.

The premise of petitioner’s claim is that (1) it held

imprescriptible mineral rights on the lands that the

United States acquired to create the Kisatchie National

Forest in the 1930s, and (2) the Fifth Circuit’s decisions

in 2004 and 2007 deprived it of those rights without compensation. See Pet. App. 29a. There is, however, no

foundation for the first element in petitioner’s claim.

11

Under Louisiana law in effect at the time the United

States acquired the land, mineral rights prescribed to

landowners after ten years. Id. at 3a. Indeed, many of

the deeds expressly stated that “a ten-year prescriptive

period would apply.” Ibid. Petitioner asserts that Louisiana’s Act 315 retroactively altered that rule with respect to the federal land at issue here. But that was a

disputed proposition. The Fifth Circuit once ruled in

favor of petitioner’s predecessor with respect to one

parcel of land in United States v. Nebo Oil Co., 190 F.2d

1003, 1006-1010 (1951). Then, following this Court’s intervening decision in United States v. Little Lake

Misere Land Co., 412 U.S. 580 (1973), and its own decision in Central Pines Land Co. v. United States,

274 F.3d 881 (2001), cert. denied, 537 U.S. 822 (2002),

the Fifth Circuit resolved the dispute in favor of the

United States with respect to the other 95 servitudes at

issue. Petro-Hunt, L.L.C. v. United States, 365 F.3d

385, 397-399, cert. denied, 543 U.S. 1034 (2004); PetroHunt, L.L.C. v. United States, No. 06-30095, 2007 WL

715270, at *1-*3 (Mar. 6, 2007) (per curiam), cert. denied, 552 U.S. 1242 (2008). Petitioner’s assertion of imprescriptible mineral rights in the 95 servitudes at issue

here has thus been rejected by the dispositive judicial

decisions considering the question.

Petitioner contends (Pet. 28) that the Fifth Circuit’s

later decisions rest on a misunderstanding of the preclusive effect of its earlier decision. See Pet. App. 29a.

But the Fifth Circuit expressly considered and rejected

that argument, see Petro-Hunt, 365 F.3d at 395-399,

and this Court denied certiorari, Petro-Hunt, L.L.C. v.

United States, 543 U.S. 1034 (2004). Petitioner’s assertion of a judicial taking thus amounts to a collateral attack on the Fifth Circuit’s understanding of its own

12

precedent. See Pet. App. 29a. The courts below correctly concluded that the CFC could not adjudicate such

a claim. As an Article I body, the CFC has no power to

review the merits decision of the Fifth Circuit, an Article III court of appeals. See id. at 28a. Article III

courts render binding judgments in cases or controversies “subject to review only by superior courts in the

Article III hierarchy.” Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 218-219 (1995). As relevant here, decisions

by federal courts of appeals are reviewable on rehearing by the court of appeals, Fed. R. App. P. 35, or by

this Court, 28 U.S.C. 1254. No statute purports to authorize the CFC to review the decisions of federal

courts of appeals. See 28 U.S.C. 1491-1509 (defining the

CFC’s jurisdiction). The Federal Circuit has thus consistently held that the CFC lacks jurisdiction over

claims like petitioner’s, see Pet. App. 28a (collecting

cases), and petitioner does not suggest that any court

has taken a different view.

b. As petitioner observes (Pet. 20), the Federal Circuit entertained, but ultimately rejected, a takings claim

where a federal court had previously enjoined a paper

company from logging its land without an incidentaltake permit under the Endangered Species Act of 1973,

16 U.S.C. 1531 et seq. See Boise Cascade Corp. v. United

States, 296 F.3d 1339, 1341 (Fed. Cir. 2002), cert. denied, 538 U.S. 906 (2003). As the court of appeals explained in this case, however, Boise Cascade provides

no support for petitioner’s position. Pet. App. 30a.

First, the paper company in that case indisputably held

a property interest in the land, see 296 F.3d at 1343,

whereas petitioner here did not, see Pet. App. 29a. Second, the paper company in Boise Cascade “accepted the

13

validity of the injunction” entered by the Article III district court, 296 F.3d at 1344, whereas petitioner’s claim

here depends on invalidating the Fifth Circuit’s judgment that it did not hold imprescriptible mineral servitudes on the parcels of land at issue, see Pet. App. 30a.

Indeed, as the court of appeals noted, petitioner’s own

submissions to the CFC indicate that it was contesting

the Fifth Circuit’s decision on the merits. See ibid. Petitioner’s statement in this Court that it accepts “the

premise that the judgment in question was validly entered,” Pet. 25, does not change the fact that its “takings

claim depends on the CFC’s finding that the Fifth Circuit’s decision was in error—something it has no jurisdiction to do,” Pet. App. 31a. In sum, even assuming

arguendo that a judicial-takings claim could be considered in some circumstances, the courts below correctly

concluded that the CFC lacked jurisdiction to consider

the claim that petitioner advanced here.

3. Petitioner does not suggest that the courts of appeals are divided over the question that the court of appeals decided here, and there is no other basis for this

Court’s review.

a. As noted above, no court has ever held that a taking resulted from a federal court’s decision. Contrary

to petitioner’s assertion (Pet. 19), the Federal Circuit’s

decision in Smith v. United States, 709 F.3d 1114, cert.

denied, 134 S. Ct. 259 (2013), did not “recognize[] that

federal judicial action can give rise to a federal judicial

takings claim in the” CFC, Pet. 19. Rather, Smith held

that an attorney’s claim that court disbarment decisions

had taken his law license without just compensation was

time-barred. 709 F.3d at 1115. In reaching that holding, the Court noted that “the theory of judicial takings

existed prior to 2010,” and that the plaintiff ’s “taking

14

claim did not become actionable due to Stop the Beach.”

Id. at 1117. Smith thus had no occasion to determine

the nature or scope of a federal judicial-takings claim. 2

Likewise, neither of the cases outside the Federal

Circuit identified by petitioner recognized a judicial

taking resulting from a federal court decision. The Third

Circuit in In re Lazy Days’ RV Center, Inc., 724 F.3d

418, 425 (2013), held that a bankruptcy-court decision

“did not take any of [the litigant’s] established property

rights.” And the Fifth Circuit’s unpublished decision in

Sanders v. Belle Exploration, Inc., 481 Fed. Appx. 98,

103 (2011) (per curiam), declined to consider a judicialtakings claim because it was not presented to the district court. Other federal court of appeals decisions

since Stop the Beach have similarly rejected judicialtakings claims without engaging the issues raised by

the petition. See, e.g., PPW Royalty Trust v. Barton,

841 F.3d 746, 756 (8th Cir. 2016), cert denied, 137 S. Ct.

1596 (2017); Gibson v. American Cyanamid Co., 760 F.3d

600, 626 n.10 (7th Cir. 2014), cert. denied, 135 S. Ct. 2311

(2015); Vandevere v. Lloyd, 644 F.3d 957, 963 n.4 (9th

Cir.), cert. denied, 565 U.S. 1093 (2011).

This Court has also repeatedly declined to review

cases concerning judicial-takings claims after Stop the

Beach. See, e.g., L.D. Drilling, Inc. v. Northern Natural

Gas Co., 138 S. Ct. 747 (2018) (No. 17-786); Nies v. Town

To the extent Smith could be read to suggest that Stop the Beach

definitively endorsed the possibility of judicial-takings claims, that

suggestion rests on a misunderstanding of this Court’s decision, in

which only a plurality of Justices accepted the possibility of judicialtakings claims. See Pet. App. 32a n.6 (addressing Smith and explaining that this “Court’s decision in Stop the Beach that a cause of

action for a judicial taking exists is a plurality decision, and therefore not a binding judgment”).

2

15

of Emerald Isle, 138 S. Ct. 75 (2017) (No. 16-1305); Edwards v. Blackman, 137 S. Ct. 52 (2016) (No. 15-1343);

Shinnecock Indian Nation v. New York, 136 S. Ct. 2512

(2016) (No. 15-1215). Indeed, this Court declined to review petitioner’s judicial-takings claim when petitioner

sought review of the Fifth Circuit decision that petitioner asserts was a judicial taking. See Pet. at 30,

Petro-Hunt, supra (No. 04-190).

b. In the absence of a circuit conflict, petitioner contends (Pet. 24) that this Court’s review is warranted to

correct “the Federal Circuit’s inconsisten[t]” treatment

of federal judicial-takings claims. But as explained

above, there is no conflict between decisions like Boise

Cascade and the decision below. See Pet. App. 30a. In

any event, it “is primarily the task of a Court of Appeals,” not this Court, “to reconcile its internal difficulties.” Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam). And unlike some matters falling

within the Federal Circuit’s specialized jurisdiction, the

question of whether and how federal judicial-takings

claims can arise is one on which a circuit conflict could

develop. See, e.g., Pet. 29 (discussing judicial-takings

claims addressed by the Third Circuit).

c. Finally, petitioner’s contention (Pet. 24) that the

decision below conflicts with Stop the Beach is incorrect.

The courts below resolved this case on the same basis

that this Court resolved Stop the Beach—they concluded

that petitioner lacked a “cognizable property interest” in

the property allegedly taken. Pet. App. 29a; accord

Stop the Beach, 560 U.S. at 733 (rejecting claim because

petitioner lacked “established property rights” in the

property allegedly taken). This Court, moreover, had

no occasion to review the question presented here in

16

Stop the Beach, which arose in a markedly different jurisdictional posture. In Stop the Beach, the Florida

landowners asserted their judicial-takings claim in

seeking direct review of the state-court decision that

they considered a taking. See 560 U.S. at 711. Here,

petitioner asserted its judicial-takings claim through a

separate lawsuit filed in the CFC. Taken to its logical

conclusion, petitioner’s theory would allow the CFC to

review a takings claim alleging that a decision of this

Court—for example, a decision overruling a precedent

that affects property rights—entitles the losing party

to compensation from the federal treasury. Petitioner

cites no authority supporting that anomalous result,

which is another of the numerous “difficulties that

should be considered before accepting the theory that a

judicial decision” may “constitute[] a violation of the

Takings Clause,” and which further weighs against this

Court’s review here. Id. at 734 (Kennedy, J., concurring

in part and concurring in the judgment).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY H. WOOD

Acting Assistant Attorney

General

WILLIAM B. LAZARUS

BRIAN C. TOTH

Attorneys

APRIL 2018