Amicus Curiae Brief — Kevin Brott, et al., Petitioners v. United States

No. 17-712

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IN THE

Supreme Court of the United States

____________________

KEVIN BROTT, ET AL., Petitioners,

v.

UNITED STATES OF AMERICA, Respondent.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

____________________

Brief Amicus Curiae of

Downsize DC Foundation, DownsizeDC.org,

Conservative Legal Defense and Education

Fund, Restoring Liberty Action Committee,

and American Business Defense Foundation in

Support of Petitioners

____________________

JOSEPH W. MILLER

ROBERT J. OLSON*

LAW OFFICES OF

JEREMIAH L. MORGAN

JOSEPH MILLER, LLC

WILLIAM J. OLSON

2321 Tribulation Trail

WILLIAM J. OLSON, P.C.

Fairbanks, AK 99709

370 Maple Ave. W., Ste. 4

Attorney for Amicus Curiae Vienna, VA 22180

RLAC

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

December 14, 2017

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

I.

THE PETITION FOR CERTIORARI MEETS THIS

COURT’S TEST FOR GRANTING PETITIONS SET

OUT IN U.S. SUPREME COURT RULE 10(C) . . . . . 6

II. THE SIXTH CIRCUIT DECISION BELOW

DIRECTLY CONFLICTS WITH MONONGAHELA

NAVIGATION CO. V. UNITED STATES . . . . . . . . . . 9

III. THE SIXTH CIRCUIT’S INVOCATION OF

SOVEREIGN IMMUNITY CANNOT TRUMP THE

CONSTITUTIONAL TEXT . . . . . . . . . . . . . . . . . . . 12

IV. THE VERY NATURE OF AN ARTICLE I COURT

PRECLUDES IT FROM BEING ENTRUSTED WITH

DETERMINATION OF “JUST COMPENSATION”

FOR SIGNIFICANT TAKINGS BY THE FEDERAL

GOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 17

V. THE SEVENTH AMENDMENT JURY TRIAL

GUARANTEE APPLIES TO SUITS AGAINST THE

FEDERAL GOVERNMENT SEEKING JUST

COMPENSATION FOR TAKINGS . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Deuteronomy 1:16-17 . . . . . . . . . . . . . . . . . . . . . . . 20

Deuteronomy 16:19 . . . . . . . . . . . . . . . . . . . . . . . . 20

Leviticus 19:15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

U.S. CONSTITUTION

Amendment V. . . . . . . . . . . . . . . . . . . . . . . . 2, passim

Amendment VII . . . . . . . . . . . . . . . . . . . . . . 3, passim

STATUTES

28 U.S.C. § 171 . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

28 U.S.C. § 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CASES

Bank of Columbia v. Okely, 17 U.S. (4 Wheat)

235 (1819). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

First English Evangelical Lutheran Church v.

Los Angeles, 482 U.S. 304 (1987) . . . . . 4, 11, 14

Kawananakoa v. Polyblank, 205 U.S. 349

(1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Lynch v. United States, 292 U.S. 571 (1934) . 13, 17

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . 12, 16

Maricopa Cty., Ariz. v. Valley Nat’l Bank of

Phoenix, 318 U.S. 357 (1943) . . . . . . . . . . 13, 17

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) . . . . . . . . . . . . . . . . 3, passim

Preseault v. Interstate Commerce Comm’n, 494

U.S. 1 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Stearns Co. v. United States, 396 F.3d 1354

(Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

MISCELLANEOUS

E. Chemerinsky, “Against Sovereign Immunity,”

53 STAN. L. REV. 1201 (2001). . . . . . . . . . . 16, 17

Federalist #47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

The Founder’s Constitution (Kurland, P. &

Lerner, R. Eds.: Univ. Of Chi. 1987). . . . . 22, 23

M. P. Goodman, “Taking Back Takings Claims:

Why Congress Giving Just Compensation

Jurisdiction to the Court of Federal Claims

is Unconstitutional,” 60 VILL. L. REV. 83

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Phillip Hamburger, Is Administrative Law

Unlawful?, U. Chicago Press (2014) . . . . . . . . 24

R. Ketchum, edt., The Political Thought of

Benjamin Franklin, Hackett Publishing

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Magna Carta. . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

R. H. Seamon, “The Asymmetry of State

Sovereign Immunity,” 76 WASH. L. REV.

1067 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

INTEREST OF THE AMICI CURIAE1

Downsize DC Foundation, Conservative Legal

Defense and Education Fund, and American Business

Defense Foundation are nonprofit educational and

legal organizations, exempt from federal income tax

under Internal Revenue Code (“IRC”) section 501(c)(3).

DownsizeDC.org is a nonprofit social welfare

organization, exempt from federal income tax under

IRC section 501(c)(4). Restoring Liberty Action

Committee is an educational organization. These

organizations were established, inter alia, for purposes

related to participation in the public policy process,

including conducting research, and informing and

educating the public on the proper construction of

state and federal constitutions, as well as statutes

related to the rights of citizens, and questions related

to human and civil rights secured by law.

STATEMENT OF THE CASE

Petitioners are 23 Michigan landowners who held

reversionary interests in railroad easements. When

the railroad line was abandoned, instead of the land

reverting back to the landowners, the easements were

taken for a public recreational trail pursuant to federal

statute. Over the government’s objection, a previous

Supreme Court decision held that the “rails-to-trails”

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to the filing of it; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

statute constitutes a taking of property for public use

and that the landowners are entitled to just

compensation under the Fifth Amendment.

See Preseault v. Interstate Commerce Comm’n, 494

U.S. 1 (1990).

The Tucker Act requires that any claims against

the United States that exceed $10,000 must be brought

exclusively in the Court of Federal Claims (“CFC”), an

Article I legislative tribunal which allows no jury

trials.

Petitioners sued in the U.S. District Court for the

Western District of Michigan, asking for declaratory

judgment that the Article III court has subject matter

jurisdiction to hear their claims of just compensation

for the takings, and also that Petitioners have a right

to a jury trial.

Petitioners asserted the Fifth

Amendment as the source of their claims, and argued

that the Tucker Act is unconstitutional to the extent it

relegates their Fifth Amendment claims to an Article

I tribunal and without a right to a jury under the

Seventh Amendment. The district court dismissed the

case (Brott v. United States, 2016 U.S. Dist. LEXIS

142915, *13 (W.D. Mich. 2016)), and Petitioners

appealed to the Sixth Circuit.

The Sixth Circuit affirmed the district court,

determining that suits against the United States

require a waiver of sovereign immunity, and this is

true “regardless of the source of the rights at issue.”

Brott v. United States, 858 F.3d 425, 432 (2017). “The

Fifth Amendment,” the court held, “does not provide a

means to enforce that right.” Id. “Courts must look to

3

... the Tucker Act ... to determine how the right to

compensation is to be enforced.” Id. at 432-33.

Furthermore, the Sixth Circuit relied on the

“public rights doctrine,” which allows certain claims

against the United States to be heard only before

legislative courts or administrative agencies. Id. at

434. As to public-right claims, the legislative branch

“may delegate the landowners’ just-compensation

claims to a legislative court — the Court of Federal

Claims — for resolution.” Id. at 435.

Petitioners argued below, as they do here in their

Petition, that Fifth Amendment just-compensation

claims are inherently judicial, thus opening the door to

an Article III court, relying, inter alia, on this Court’s

decision in Monongahela Navigation Co. v. United

States, 148 U.S. 312 (1893). However, the Sixth

Circuit believed that “Monongahela is inapposite”

because that case addressed a private legislative act

which had specifically waived sovereign immunity and

placed jurisdiction in the Article III court in the

western district of Pennsylvania, with right of appeal

to the Supreme Court. Brott at 435. Furthermore, the

court below held that any decision Petitioners may

receive from the Court of Federal Claims may be

appealed to the U.S. Court of Appeals for the Federal

Circuit, which provides sufficient access to an Article

III court. Id. at 436.

Finally, the Sixth Circuit held that there is no

Seventh Amendment right to a trial by jury in cases

against the United States, because such cases are not

“suits at common law” within the meaning of the

4

Seventh Amendment. Id. The court also applied the

“public rights” doctrine to the jury trial claim, relying

on this Court’s decisions that Congress may delegate

the fact-finding function of public-rights cases to an

administrative forum. Id. at 437.

SUMMARY OF ARGUMENT

The Sixth Circuit’s opinion below appears to be in

direct conflict with the principles laid down by this

Court more than a century ago in Monongahela v.

United States. There, the Court concluded that the

Fifth Amendment “stated the exact limitation on the

power of the government,” and yet the Sixth Circuit

below claimed that Congress itself must establish the

system to limit its own authority. Whereas the

Monongahela Court refused to tolerate a system where

Congress was permitted to “constitute itself the judge

in its own case, ” yet that is precisely the effect here,

where takings cases must be heard by an Article I

“court” sitting without a jury. More recently, in First

English Evangelical Lutheran Church v. Los Angeles,

the Court stated that a landowner is “entitled” to bring

a takings claim against the federal government, while

the Sixth Circuit below claimed that Congress must

first permit him to bring such an action. The conflict

between this Court’s decisions and the opinion of the

court below is clear, and this Court’s intervention is

necessary to correct the Sixth Circuit’s obvious legal

error. In the alternative, if Monongahela were not

considered controlling, this case presents an important

question of federal law which should be resolved by

this Court.

5

Refusing to apply this Court’s guidance to this

specific issue, the Sixth Circuit instead pointed to

dicta in unrelated decisions of this Court in support of

the notion that the doctrine of sovereign immunity is

“all embracing” and “knows no limitations.” Based on

these statements, made in different contexts, the court

concluded that it is incumbent on Congress to create —

or not create — a system by which aggrieved

landowners may vindicate their Fifth Amendment

rights. In other words, the court below effectively

rewrote the Fifth Amendment to read that “nor shall

private property be taken for public use, without just

compensation, unless Congress chooses to do so.” The

court’s holding is simply incompatible with our

constitutional system where the people imposed real

limits on federal power. When it comes to the

Constitution, the federal government is not sovereign

— rather, the Constitution arises from an act of a

sovereignty people. For a government of limited

powers to claim that it has the royal prerogative to

disregard constitutional provisions undermines the

people’s sacred contract with their government.

The very nature of the Court of Federal Claims, as

an Article I court, makes it completely unsuitable as a

substitute for an Article III court in which trial by jury

may be had. Allowing agents of the political branches

which made the decision to perform the taking the

power to decide what constituted “just compensation,”

undermines public confidence in the process and in the

result.

The Sixth Circuit dismissed the application of the

Seventh Amendment to this case, on the theory that a

6

suit against the United States for just compensation

was not a suit “at common law.” And, the court

asserted that a suit for just compensation was “public

right” suit. For these reasons, the court denied he

Petitioner’s entitlement to trial by jury. However, both

positions are based on incorrect assumptions.

Moreover, both statements are grounded in the notion

that the longstanding, but atexual, doctrine of

sovereign immunity may trump the clear text of U.S.

Constitution.

ARGUMENT

I.

THE PETITION FOR CERTIORARI MEETS

THIS COURT’S TEST FOR GRANTING

PETITIONS SET OUT IN U.S. SUPREME

COURT RULE 10(C).

The Petition for Certiorari (“Pet. Cert.”) presents

to this Court a fundamental question of constitutional

law, posed by Petitioners as follows:

Can the federal government take private

property and deny the owner the ability to

vindicate his constitutional right to be justly

compensated in an Article III Court with trial

by jury? [Pet. Cert. at i.]

In this case, the test for granting review of the

decision of the Sixth Circuit, set out in Rule 10, is met

in two ways. First, a case relied on repeatedly by

Petitioners — Monongahela Navigation Co. v. United

States, 148 U.S. 312 (1893) — should be considered

controlling as to the question presented. See Section

7

II, infra. Thus, the Sixth Circuit “has decided an

important federal question in a way that conflicts with

relevant decisions of this Court.” Rule 10(c).

Nevertheless, it is undisputed that this Court’s

decision in Monongahela has never been applied to

require Article III courts to take and decide cases

seeking “just compensation” for takings by the federal

government. Therefore, if Monongahela were not

considered controlling, the decision of the Sixth Circuit

should be reviewed because it “decided an important

question of federal law that has not been, but should

be, settled by this Court....” Rule 10(c).

The question presented is both simple and clearly

stated, but it requires consideration of multiple

constitutional principles, including:

• what limitations exist as to the type of disputes

that may be decided by Article I legislative

courts and Article I judges;

• whether Article III courts and Article III

judges have not only jurisdiction but also a

duty to hear cases seeking an independent

determination of “just compensation”

subsequent to a federal taking of property;

• whether the provision in Amendment V that

states “nor shall private property be taken for

public use, without just compensation” is selfexecuting, constitutionally granting jurisdiction

to an Article III court over cases seeking “just

compensation”;

• whether the right to a jury trial set out in

Amendment VII for “Suits at common law”

8

applies to takings by the federal government;

and

• whether the doctrine of sovereign

immunity should continue to be viewed as a

presupposition which trumps the constitutional

text governing takings.

The Petition for Certiorari ably addresses each of

these constitutional principles. It also explains how

the theory underlying the Sixth Circuit decision

authorizes Congress to eviscerate by statute the

Constitution’s Fifth Amendment protection against

takings, undermining this key protection of the

American people from their government, rendering it

all but a dead letter. It also explains how the

Congressional scheme falls far short of the

Constitution’s requirements:

Congress adopted a scheme in which the

federal government can [i] take an owner’s

property, [ii] pay the owner nothing, [iii] force

the owner to bring an inverse condemnation

lawsuit against the United States and [iv]

deny the owner ability to vindicate his right to

be justly compensated in an Article III court

with trial by jury..... [Pet. Cert. at 31.]

In sanctioning this approach, Petitioners correctly

assert that: “[t]he panel’s decision reduces the Just

Compensation Clause to nothing more than a

hortatory or precatory statement the realization of

which depends upon the good grace of Congress.” Id.

at 34.

9

These amici first address the application of this

Court’s decision in Monongahela to this case, and then

address some of the constitutional issues involved,

particularly the doctrine of sovereign immunity.

II. THE SIXTH CIRCUIT DECISION BELOW

DIRECTLY

CONFLICTS

WITH

MONONGAHELA NAVIGATION CO. V.

UNITED STATES.

In Monongahela, this Court was presented with a

question of what was just compensation for the taking

of a lock and dam on the Monongahela River.

Congress had specified the amount of compensation at

$161,733, but the amount only covered the value of the

property, failing to take into consideration the value of

the franchise of operating the lock and receiving tolls.

Thus, the owner sued in federal court for $450,000 to

be compensated for the full value. This Court held

that the question of what private property should be

taken for public use was a legislative question, but the

issue of what is just compensation for such land is a

judicial one. Monongahela at 327.

In Monongahela, this Court observed that “in [the]

Fifth Amendment, there is stated the exact limitation

on the power of the government to take private

property for public uses.” Id. at 325. The Court noted

that the duty to determine just compensation “is a

judicial and not a legislative question.” Id. at 327

(emphasis added). Emphasizing the rationale for its

decision, the Court explained that, for the legislature

to “constitute itself the judge in its own case ... or in

any manner to interfere with the just powers and

10

province of courts and juries in administering right

and justice, cannot for a moment be ... tolerated under

our Constitution.” Id. at 327-28.

Nevertheless, the court below sanctioned

Congress’s establishment of a system to establish

valuation without access to an Article III court or

jury.2 Rather, Congress has created a statutory regime

where a federal government agency may determine

whether and how much property to take from

landowners, and then refer them to a quasi-judicial

tribunal that derives its existence and authority from

Congress. The Monongahela Court could not have

been more clear — such a system “cannot for a

moment be ... tolerated,” yet the court below

sanctioned just that system, asserting that “Congress

may, as it has done here, place conditions upon its

waiver of sovereign immunity and require that justcompensation claims ... be heard in the Court of

Federal Claims without a jury.” Brott at 437. The

2

The Sixth Circuit held that it was enough that an Article III

court may review the decisions of the Court of Federal Claims on

appeal. See Brott at 435-36 (“The landowners will ultimately

receive judicial review of their claims by an Article III court — the

Federal Circuit.”). However, the Sixth Circuit failed to note that

not all cases are appealed and did not address the Federal

Circuit’s standard of review in takings cases: “Whether a taking

has occurred is a question of law based on factual

underpinnings.... We conduct a plenary review of the legal

conclusions of the Court of Federal Claims while reviewing its

factual conclusions for clear error.” Stearns Co. v. United

States, 396 F.3d 1354, 1357 (Fed. Cir. 2005) (emphasis added).

Thus, despite the Sixth Circuit’s assurance of Article III judicial

review, it remains that the factual determinations of the CFC are

generally conclusive.

11

Sixth Circuit’s attempt to distinguish Monongahela

was altogether unavailing. Indeed, the discussion of

Monongahela by the Sixth Circuit evidenced that it

fundamentally misunderstood and misapplied that

case. A careful analysis of the weaknesses of the Sixth

Circuit’s opinion on this point was presented by

Petitioners. See Pet. Cert. at 33-35.

The constitutional principle recognized in

Monongahela a century and a quarter ago has not been

lost to history, but rather lives today. Indeed, in First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 315 (1987), the

Court held that, constitutionally, “a landowner is

entitled to bring an action in inverse condemnation.”

(Emphasis added.) Nevertheless, the Sixth Circuit

claimed a landowner must first be permitted by

Congress to bring an action: “the United States must

waive sovereign immunity from suit for all those

claims, regardless of the source of the rights at issue.”

Brott at 432. It is hard to imagine more conflicting

conclusions than this Court’s decisions in

Monongahela and First English on the one hand, and

the decision of the Sixth Circuit below on the other.

The Sixth Circuit cited First English for the

proposition that “the Fifth Amendment right to just

compensation” was “self-executing ... such that

additional ‘statutory recognition was not necessary.’”

Brott at 432 (citation omitted). However, the court

below took the position that “the fact that the Fifth

Amendment creates a ‘right to recover just

compensation’ ... does not mean that the United States

has waived sovereign immunity such that the right

12

may be enforced by suit for money damages.” Id.

(citation omitted). In other words, the court below

took the position that even though the U.S.

Constitution recognizes the right of an American

citizen to just compensation, that right by itself is

meaningless. The right would be enforceable only if

Congress were first to waive sovereign immunity and

then to establish a procedure allowing for such claims

to be made and heard. Constitutional rights may not

be understood in this manner. As Chief Justice

Marshall observed in Marbury v. Madison, 5 U.S. 137

(1803), “[t]he very essence of civil liberty certainly

consists in the right of every individual to claim the

protection of the laws, whenever he receives an

injury.” Id. at 163. Indeed, Chief Justice Marshall

concluded that a government would cease to be a

“government of laws, and not of men ... if the laws

furnish no remedy for the violation of a vested legal

right.” Id. See also Section III, infra.

III. THE SIXTH CIRCUIT’S INVOCATION OF

SOVEREIGN IMMUNITY CANNOT TRUMP

THE CONSTITUTIONAL TEXT.

The Sixth Circuit decision below sanctions the

supplanting of the protections provided by the Fifth

Amendment by the simple expedient of invoking the

atextual doctrine of sovereign immunity. Brott at 432.

The court below pointed to dicta in prior decisions of

this Court, which employed expansive language to

describe that embattled doctrine, such as “[t]he rule

that the United States may not be sued without its

13

consent is all embracing,”3 and “the power to withdraw

the privilege of suing the United States or its

instrumentalities knows no limitations.”4 Brott at 431.

Of course, none of the cited cases determined, or even

indicated, that this doctrine trumped the restrictions

on government imposed by the Fifth Amendment. The

Sixth Circuit, however, was not shy about its

interpretation, claiming that “the United States must

waive sovereign immunity from suit for all ... claims,

regardless of the source of the rights at issue.” Id.

at 432 (emphasis added).

The Sixth Circuit apparently understands the

Fifth Amendment as though it had been written to

state: “nor shall private property be taken for public

use, without just compensation, unless Congress

chooses to do so.” The circuit court’s understanding

would mean that Congress not only could designate

the forum and rules for adjudicating takings cases, but

also could deny the ability of citizens to bring a takings

case at all. Such a result is wholly incompatible with

the notion that the Fifth Amendment’s text is selfexecuting, as Petitioners have demonstrated. Pet.

Cert. at 10-14. The Sixth Circuit opinion is also

incompatible with the more fundamental notion that

our written federal Constitution both grants limited,

enumerated powers to that government, as well as

protects certain identified rights of the people

3

4

Lynch v. United States, 292 U.S. 571, 581 (1934).

Maricopa Cty., Ariz. v. Valley Nat’l Bank of Phoenix, 318 U.S.

357, 362 (1943).

14

irrespective of what position a contemporary Congress

may take.

In First English, this Court noted that

“government action that works a taking of property

rights necessarily implicates the ‘constitutional

obligation to pay just compensation’ ... Statutory

recognition was not necessary. A promise to pay was

not necessary. Such a promise was implied because of

the duty to pay imposed by the Amendment.” Id. at

315. In Monongahela, the Court stated simply that it

was “[t]he Constitution [which] has declared that just

compensation shall be paid....” Id. at 327. See also

First English at 316 n.9 (“it is the Constitution that

dictates the remedy for interference with property

rights amounting to a taking.”). See also Pet. Cert. at

11-12.

To be sure, this Court’s opinions written over a

period of at least six decades are not entirely

harmonious.

What some commentators politely

describe as a “crossroads”5 between the Takings Clause

and the sovereign immunity doctrine, others describe

as a “collision course.”6 Regardless, adoption of the

view of the Sixth Circuit below would lead to an

absurd result. If a person has a constitutional right to

“just compensation,” it makes no sense to permit the

government to claim sovereign immunity against

5

See Pet. Cert. at 17 (citing Richard H. Fallon, Jr., “Claims Court

at the Crossroads,” 40 CATHOLIC U. L. REV. 517 (1991)).

6

See R. H. Seamon, “The Asymmetry of State Sovereign

Immunity,” 76 WASH. L. REV. 1067, 1067 (2001).

15

having to pay that compensation — allowing Congress

to pull the welcome mat away from the courthouse

door. See Pet. Cert. at 13 (“[t]he federal government

may not escape this ‘categorical duty’ by creating a

statutory scheme denying owners the ability to obtain

just compensation....”). A “right” which cannot be

enforced against the government is not much of a

right.

Sovereign immunity is a judicially created

construct, sourced in antiquity, but found nowhere in

the Constitution. Thus, it must give way to a clear

textual provision that provides explicit instructions.

In Kawananakoa v. Polyblank, 205 U.S. 349 (1907),

Justice Holmes famously expounded one of the main

justifications employed to support the sovereign

immunity doctrine: “[a] sovereign is exempt from suit,

not because of any formal conception or obsolete

theory, but on the logical and practical ground that

there can be no legal right as against the authority

that makes the law on which the right depends.”

Kawananakoa at 353 (emphasis added). However,

that theory hardly applies here, where the People are

the authority which created the federal government

through the Constitution, which in turn preserves for

them the right to just compensation. It is not the

government which chose to subject itself to the

mandates of the Fifth Amendment.

Unlike British notions vesting sovereignty in a

king or parliament, under this nation’s founding

compact, it is not the federal government which is

sovereign, but the People. As Benjamin Franklin

observed: “In free governments, the rulers are the

16

servants and the people their superiors and

sovereigns.”7 To paraphrase Kawananakoa, it is the

People who “ma[de] the law on which the right

depends.” It is a remarkable turn to now have the

government argue that it need not abide by the

Constitution’s protections of the people who formed it

because it is the sovereign over them. See Marbury v.

Madison at 176 (“the people have an original right to

establish, for their future government, such principles

as, in their opinion, shall most conduce to their own

happiness.... The principles, therefore, so established,

are deemed fundamental. And as the authority, from

which they proceed, is supreme....”).

It is no answer to say that sovereign immunity is

an ancient concept, derived from common law and the

English tradition, and so it must apply even to suits to

enforce constitutional rights — rights which were in

many respects designed to be a break from that

English tradition. As Professor Erwin Chemerinsky

notes, “[t]he United States was founded on a rejection

of a monarchy and of royal prerogatives. American

government is based on the fundamental recognition

that the government and government officials can do

wrong and must be held accountable. Sovereign

immunity undermines that basic notion.”

E.

Chemerinsky, “Against Sovereign Immunity,” 53 STAN.

L. REV. 1201, 1202 (2001).

Although some may take the view that the federal

government must have sovereign immunity, for

7

R. Ketchum, edt., The Political Thought of Benjamin Franklin,

Hackett Publishing (2003), p. 398.

17

example, from a suit in tort for money damages — the

type of common law suit that could be brought by or

against any member of the public — this case presents

a different question. The provisions of the Fifth

Amendment apply specifically and exclusively against

the government, and can be invoked only by the victim

of a government taking. To permit the application of

sovereign immunity to defeat the claim brought below

would be nothing less than to subordinate the

constitutional protection of the Fifth Amendment to

Congress. To the extent that this Court’s dicta in

Lynch and Maricopa County have been read by the

Sixth Circuit to insulate the government from its

constitutional obligations, that view should be

repudiated by this Court.8

IV. THE VERY NATURE OF AN ARTICLE I

COURT PRECLUDES IT FROM BEING

ENTRUSTED WITH DETERMINATION OF

“JUST

COMPENSATION”

FOR

SIGNIFICANT TAKINGS BY THE FEDERAL

GOVERNMENT.

In creating the Court of Federal Claims, Congress

explicitly stated that “[t]he court is declared to be a

court established under article I of the Constitution of

the United States.” 28 U.S.C. § 171(a). As Petitioners

note, “members of the CFC do not enjoy those

protections afforded Article III judges.” Pet. Cert. at 4.

8

Professor Chemerinsky argues that “Sovereign immunity is an

anachronistic relic and the entire doctrine should be eliminated

from American law... The doctrine is inconsistent with the United

States Constitution.” Chemerinksy, supra, at 1201-02.

18

Petitioners explain that its members sit only for

fifteen-year terms (rather than for life), are subject to

removal by other federal judges (rather than

impeachment or removal by Congress), and their

salaries are set at the will of Congress (rather than

being protected against reduction by constitutional

provision). Id.

Whereas Article I judges hold their seats during

periods of “good behavior,” CFC members can be

removed “for incompetency, misconduct, neglect of

duty, engaging in the practice of law, or physical or

mental disability.” 28 U.S.C. § 176(a). Article I judges

also are subject to residency requirements (28 U.S.C.

§ 175(b)) that do not apply to Article III judges.

Finally, the chief judge of the CFC serves in much the

same way as other executive officials — “at the

pleasure of the President.” M. P. Goodman, “Taking

Back Takings Claims: Why Congress Giving Just

Compensation Jurisdiction to the Court of Federal

Claims is Unconstitutional,” 60 VILL. L. REV. 83, 89

(2015), see 28 U.S.C. § 171(b).

As one observer concluded, that CFC judges “may

want to please their bosses and ‘get it right,’” since

“[t]he chief judge ... has authority to decide which

judge will hear any particular case and can replace the

judge assigned to any case at will.” Goodman at 94. In

that sense, members of the Court of Federal Claims

should be seen as acting under the authority of the

legislative and executive branches.9

9

In other words, the Court of Federal Claims may “walk like a

court and quack like a court,” and federal statute may even give

19

V. THE SEVENTH AMENDMENT JURY TRIAL

GUARANTEE APPLIES TO SUITS AGAINST

THE FEDERAL GOVERNMENT SEEKING

JUST COMPENSATION FOR TAKINGS.

In addressing Petitioners’ claim to trial by jury,

the Sixth Circuit stated:

“We appreciate the

landowners’ desire to have their compensation claims

heard by a jury.” Brott at 436. The circuit court

offered no reason as to why it believed a jury trial had

been sought, or why it expressed appreciation for

Petitioners’ demand. However, the reasons that a

landowner would want a jury trial to fix just

compensation are obvious — in addition to the obvious

reason that such trials are required by the

Constitution.

A jury trial has multiple finders of fact,

minimizing, if not avoiding, the risk of an unfair result

due to the bias of a single judge — particularly when

the judge in question is an Article I judge, without the

independence of and protections for an Article III

judge.10 With juries, every effort is made by trial

it the title “court” and its members the title “judges,” but it is not

an Article III “court” under the Constitution of the United States.

Rather, it has properly been described as an “Article I court,” a

“tribunal,” or even an “adjudicative entity.”

10

When an Article I “judge” who serves in the legislative branch

of government determines just compensation for a taking by

another functionary of the political branches, it violates the

ancient legal principle nemo judex in causa sua, meaning “no one

should be a judge in his own cause.” Attributed by some to Sir

Edward Coke, that principle extends beyond cases where a judge

20

judges to ensure that a jury is selected who will assess

the evidence presented and reach a fair decision

unaffected by bias. Since a jury member could be the

victim of a taking, and yet is a taxpayer who shares in

the cost of a taking, a juror can see both sides of the

dispute. Common sense can be applied when jurors

deliberate, each with their own strengths to bring to

the case. None of these important benefits arise in

trials before an Article I judge.

The court below denied Petitioners’ claim to a jury

trial under the Seventh Amendment of the

Constitution, concluding that amendment simply does

not apply to actions against the federal government.

The Court reasoned that: (i) the Seventh Amendment

only applied “[i]n Suits at common law...”; (ii) a suit

against the United States for money damages was not

a suit at common law “within its true meaning”; (iii) a

special rule applied to suits against the government

because the “government cannot be sued, except with

its own consent”; and (iv) even if consent is given, the

government “can declare in what court it may be sued

would have a personal or financial interest in the outcome of the

decision, but also an institutional interest to be defended. Such

conflicts of interest must be avoided to ensure public confidence in

the process and in the outcome. Indeed, this principle has a

biblical foundation which requires that judges not only be

independent and impartial, but also not even give the appearance

of partiality. “Hear the causes between your brethren, and judge

righteously between every man and his brother, and the stranger

that is with him. Ye shall not respect persons in judgment; but ye

shall hear the small as well as the great; ye shall not be afraid of

the face of man; for the judgment is God’s....” Deuteronomy 1:1617; See also Deuteronomy 16:19; Leviticus 19:15.

21

... without the intervention of a jury....” Brott at 436

and at 436 n.25. Since in this case, the Petitioners are

simply “taking advantage of the United States’s waiver

of sovereign immunity and they must do so pursuant

to the conditions of that waiver.” Id. at 437. The

matter being litigated is a “public right,” because

claims against the United States are classified as

“public-right claims.” Id. (citations omitted).

Although the Sixth Circuit attempted to ground its

decision in two rules of law — that a suit against the

government for a taking is a “public-right claim” and

not a suit “at common law” — both of these positions

were sourced in the doctrine of sovereign immunity.

Petitioners address the weaknesses in the Sixth

Circuit’s handling of the right to trial by jury at pages

24-35 of their Petition, pointing out: (i) the Seventh

Amendment text makes no exception for suits against

the federal government; (ii) the Amendment’s limiting

term “at common law” was understood to distinguish

standard disputes from proceedings in equity or

admiralty which did not allow juries; (iii) the ratifying

conventions demonstrated the people’s view of the

centrality of trial by jury; (iv) the Amendment’s

linkage back to Clauses 28, 39, and 52 of Magna Carta;

(v) the practice in the colonies before 1791 to have trial

by jury for takings by the government; and (vi) the

lack of authority for the “public right” rationale.

In addition to reinforcing these points, these amici

add a few additional historical illustrations of the vital

importance of jury trials to achieve a fair resolution of

disputes — including disputes between government

and citizens.

22

In addition to those provisions of Magna Carta

cited by Petitioners, the 21st Article of Magna Carta

also demanded of King John the protection afforded by

a trial before a jury of one’s peers as a precondition to

the imposition of a fine: “Earls and barons are not to

be amerced [i.e., fined] except by their peers, and not

except in proportion to the nature of the offence.”

Insofar as the original Constitution proposed for

ratification did not have a guarantee of jury trial in

civil cases, that omission came under attack by AntiFederalists. For example, Federal Farmer explained

the significance of this omission as follows:

The trial by jury in criminal as well as in civil

causes, has long been considered as one of our

fundamental rights, and has been

repeatedly recognized and confirmed by most

of the state conventions. But the constitution

expressly establishes this trial in criminal, and

wholly omits it in civil causes.... [T]he jury

trial is a solid uniform feature in a free

government; it is the substance we would

save, not the little articles of form. [Federal

Farmer, No. 16 (Jan. 20, 1788) (emphasis

added).11]

Demonstrating the veracity of the statement by

Federal Farmer, the Virginia Declaration of Rights of

1776, enacted only weeks before the Declaration of

Independence, provided “that in controversies

11

Reprinted in 5 The Founder’s Constitution at 358 (Kurland, P.

& Lerner, R. Eds.: Univ. Of Chi. 1987).

23

respecting property ... the ancient trial by jury is

preferable to any other, and ought to be held sacred.”

Virginia Declaration of Rights, sec. 11 (June 12,

1776).12

Similarly, the Maryland Constitution

provided that “No freeman ought to be taken or

imprisoned, &c. or deprived of his life, liberty, or

property, but by the judgment of his peers, or by the

law of the land.” Bank of Columbia v. Okely, 17 U.S.

(4 Wheat) 235 (1819).

Shortly after the ratification of the Constitution in

1791, Chief Justice John Jay made clear that jurors

would provide a check on government, to protect their

fellow Americans from unfair actions taken by an

oppressive government.13

If the scope of the right to trial by jury for suit at

common law is to be determined by the understanding

of the Seventh Amendment at the time of its

ratification in 1791, as asserted by Petitioners (Pet.

Cert. at 24) and fully endorsed by these amici, there

should be no question that Americans today have a

right to have their “just compensation” for a

government taking be decided by a jury in an Article

III court.

12

13

Reprinted in 5 The Founder’s Constitution at 353.

See, e.g., Chief Justice John Jay’s Jury Charge in Georgia v.

Brailsford, 3 Dall. 1 (1794), reprinted in 5 The Founder’s

Constitution at 364.

24

CONCLUSION

The issue presented by this case is fully worthy of

resolution by this Court. However, it is also indicative

of a much larger threat to the right to a hearing in an

Article III court and the right to trial by jury. In the

last several decades, there has been an exponential

and unprecedented rise in the exercise of judicial

power by the other branches of government.

Administrative law judges determine the rights and

obligations of parties on a daily basis. The agencies for

which they work are truly an aconstitutional “fourth

branch of government,” exercising legislative, judicial,

and executive power. In Federalist #47, Madison

noted that “[t]he accumulation of all powers,

legislative, executive, and judiciary, in the same

hands, whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly be

pronounced the very definition of tyranny.” This trend

is not the separation of powers; it is the fusion of

powers.

The linkage between the administrative state and

the King’s prerogative courts in England was

demonstrated by Professor Phillip Hamburger in his

recent book, Is Administrative Law Unlawful?, U.

Chicago Press (2014). This Court should be on high

alert when the political branches of government seek

to wield judicial power. This Court should grant the

petition not only to protect the Fifth Amendment

rights of Petitioners, but also to protect the

constitutional independence and authority of the

judiciary.

25

For the foregoing reasons, the decision of the Sixth

Circuit should be vacated and the case remanded to

the district court for trial by jury.

Respectfully submitted,

JOSEPH W. MILLER

ROBERT J. OLSON*

LAW OFFICES OF

JEREMIAH L. MORGAN

JOSEPH MILLER, LLC

WILLIAM J. OLSON

2321 Tribulation Trail

WILLIAM J. OLSON, P.C.

Fairbanks, AK 99709

370 Maple Ave. W., Ste. 4

Attorney for Amicus Curiae Vienna, VA 22180

RLAC

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

December 14, 2017