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

No. 17-712

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 A ppeals for the Sixth Circuit

BRIEF OF AMICI CURIAE TRIN-CO

INVESTMENT CO. AND KATHLEEN G.

ROSE, TRUSTEE OF THE V&M ROSE

TRUST–MARITAL TRUST IN SUPPORT

OF PETITIONERS

Wesley Higbie

Higbie Law Office

3030 Bridgeway Boulevard,

Suite 105

Sausalito, CA 94965

Matthew J. Dowd

Counsel of Record

Dowd PLLC

1717 Pennsylvania Avenue, NW

Suite 1025

Washington, D.C. 20006

(202) 573-3853

mjdowd@dowdpllc.com

Counsel for Amici Curiae

January 22, 2018

278375

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

REASONS FOR GRANTING THE PETITION . . . . . 3

I.

The Scholarship of Professor Goodman

First Exposed the Jurisdictional Flaw of

the Court of Federal Claims . . . . . . . . . . . . . . . . . 3

A. The Goodman Article Detailed the

Constitutional Problem with an Article I

Court Adjudicating a Fifth Amendment

Claim for Just Compensation . . . . . . . . . . . . 3

B. After the Goodman Article, Private

Party Litigants Started to Appreciate

the Significance of the Constitutional

and Jurisdictional Flaw . . . . . . . . . . . . . . . . . 6

II. The Uncertainty Associated with This

Important Question of Law Requires This

Court’s Intervention . . . . . . . . . . . . . . . . . . . . . . . .8

A. The Petition Raises a Federal Question

of Utmost Importance, as Revealed

by the Goodman Article . . . . . . . . . . . . . . . . 8

ii

Table of Contents

Page

B. The Decisions by the Fifth and Sixth

Circuits Do Not Adequately Answer

the Question . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. This Court’s Eventual Decision in Oil

States May Not Resolve the Jurisdictional

Incertitude Now Associated with Fifth

Amendment Takings Claims . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

447 U.S. 255 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brott v. United States,

858 F.3d 425 (6th Cir. 2017) . . . . . . . . . . . . . . . 7, 11, 12

Commodity Futures Trading Commission v.

Schor,

478 U.S. 833 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fairholme Funds, Inc. v. United States,

No. 2017-1015 (Fed. Cir. Mar. 14, 2017)

(non-precedential) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

First English Evangelical Lutheran

Church of Glendale v. County of

Los Angeles, California,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Jacobs v. United States,

290 U.S. 13 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kelo v. City of New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Kirby Forest Industries, Inc. v. United States,

467 U.S. 1 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Northern Pipeline Construction Co. v.

Marathon Pipe Line Co.,

458 U.S. 50 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10

Oil States Energy Services LLC v.

Greene’s Energy Group, LLC,

No. 16-712 (U.S.) . . . . . . . . . . . . . . . . . . . . . . . . . passim

Sammons v. United States,

No. SA-16-CV-1054-FB

(W.D. Tex. filed Oct. 21, 2106) . . . . . . . . . . . . . . . . . . . 7

Sammons v. United States,

860 F.3d 296 (5th Cir. 2017) . . . . . . . . . . . . . . . 7, 11, 12

Seaboard Air Line Railway Co. v. United States,

261 U.S. 299 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Stern v. Marshall,

564 U.S. 462 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

v

Cited Authorities

Page

TrinCo Investment Co. v. United States,

722 F.3d 1375 (Fed. Cir. 2013) . . . . . . . . . . . . . . . . . . . 2

United States v. American Bell Telephone Co.,

167 U.S. 224 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Clarke,

445 U.S. 253 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . . . . . passim

STATUTES

28 U.S.C. § 1491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

35 U.S.C. § 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

OTHER SOURCES

Br i e f for t he Fe de r a l R e sp onde nt , O i l

States Energy Services LLC v. Greene’s

Energy Group, LLC, No. 16–712 (U.S.) . . . . . . . . . . 13

Trevor Burrus, Does the Seventh Amendment

Mean What it Says?, Cato At Liberty, July

24, 2107, at https://www.cato.org/blog/doesseventh-amendment-mean-what-it-says . . . . . . . . . . 9

Michael P. Goodman, Taking Back Takings

C l a i m s : W h y C o n g r e s s G i v i n g Ju s t

vi

Cited Authorities

Page

Compensation Jurisdiction to the Court

of Federal Claims is Unconstitutional,

60 Villanova L. Rev. 83 (2015) . . . . . . . . . . . . . . passim

George Leef, If The Feds Grab Your Land,

W hy Can’ t Yo u Get A Jur y Tr i a l O n

Compensation?, Forbes, Dec. 22, 2017, at https://

www.forbes.com/sites/georgeleef/2017/12/22/

if-the-feds-grab-your-land-why-cant-youget-a-jury-trial-on-compensation/ . . . . . . . . . . . . . . . 9

Richard B. Saphire & Michael E. Solimine, Shoring

Up Ar t i c l e III: L e g i s l a t i v e C o u r t

Do c tr in e in th e Pos t CF T C v. S chor

Era, 68 B.U. L. Rev. 85 (1988) . . . . . . . . . . . . . . . . . . 10

Ilya Somin, Putting Kelo in Perspective,

48 Conn. L. Rev. 1551 (2016) . . . . . . . . . . . . . . . . . . . 10

1

INTEREST OF AMICI CURIAE1

Amici curiae Trin-Co Investment Co. and Kathleen

Rose, as Trustee of the V&M Rose Trust, Marital Trust

(collectively “Trin-Co”) are private property owners

with holdings of real and personal property in the State

of California.

Amici have no direct stake in the outcome of the

present litigation. Amici do have litigation pending in

the U.S. Court of Federal Claims which involves takings

claims that may be affected by the outcome of this

litigation.

Trin-Co is a small, family-owned and family-operated

business located in northern California. Trin-Co has

been owned and operated by the same family for over 30

years. Trin-Co’s business involves raising and harvesting

merchantable timber.

In 2008, Trin-Co’s merchantable timber and land

were damaged and destroyed by actions of the U.S.

Forest Service (“Forest Service”). The Forest Service was

ostensibly responding to wildfires during that summer.

The Forest Service opted for a wildfire management plan

that saved it millions of dollars. The direct result of the

1. All parties have consented to the filing of this brief in

letters on file with the Clerk of Court, and the parties were notified

of amici curiae’s intention to file this brief at least 10 days prior

to the filing of this brief. See Sup. Ct. R. 37.2(a). No counsel for a

party has authored this brief in whole or in part, and no person

other than amici curiae, their members, and their counsel has

made a monetary contribution to the preparation or submission

of this brief. See Sup. Ct. R. 37.6.

2

Forest Service’s decision to save money, however, was

the damage to and destruction of Trin-Co’s merchantable

timber and other property. Trin-Co suffered an economic

loss of over $6 million due to the Forest Service’s costsaving management choice. Trin-Co’s property was thus

taken as a direct result of the Forest Service’s actions.

In 2011, Trin-Co brought suit against the United

States, asserting takings claims pursuant to the Fifth

Amendment of the U.S. Constitution. In accordance with

accepted practice at the time, Trin‑Co filed suit in the

Court of Federal Claims, an Article I tribunal. Trin-Co’s

case was initially dismissed by the trial court for failure

to state a claim, but, on appeal, the U.S. Court of Appeals

for the Federal Circuit reversed and reinstituted the suit.

See generally TrinCo Inv. Co. v. United States, 722 F.3d

1375 (Fed. Cir. 2013).

On remand, the parties continued through discovery

and prepared for trial. The case has since been stayed,

however. Given the developments, Trin-Co moved to

transfer its case to the U.S. District Court for the Eastern

District of California because developments revealed that

the Fifth Amendment takings claims cannot be properly

adjudicated in an Article I tribunal without a jury. The

Court of Federal Claims recognized the significance of

the jurisdictional dispute and stayed the case, pending

this Court’s decision in Oil States Energy Services LLC

v. Greene’s Energy Group, LLC, No. 16-712 (U.S.). Even

so, the question presented here is unlikely to be fully

answered by Oil States. Thus, Trin-Co’s lawsuit seeking

compensation pursuant to the Fifth Amendment remains

in legal limbo until the Court grants the petition here and

answers the question presented.

3

REASONS FOR GRANTING THE PETITION

I.

The Scholarship of Professor Goodman First

Exposed the Jurisdictional Flaw of the Court of

Federal Claims

A.

The Good man A r ticle Detailed the

Constitutional Problem with an Article I Court

Adjudicating a Fifth Amendment Claim for

Just Compensation

For over thirty years, a jurisdictional flaw with the

U.S. Court of Federal Claims remained hidden from

view. The conventional wisdom has been—and indeed

the statutory requirement is—that a Fifth Amendment

takings claim, brought against the federal government for

over $10,000, must be filed in the Court of Federal Claims.

The Tucker Act requires filing such takings claims in the

Court of Federal Claims. 28 U.S.C. § 1491. And litigants

have complied with the statutory mandate, not realizing

that the Article I trial court lacked the constitutional

authority to adjudicate those claims.

The jurisdictional flaw went unnoticed until Professor

Michael Goodman (then at the George Washington

University School of Law) exposed it in his 2015 law

review article. See generally Michael P. Goodman,

Taking Back Takings Claims: Why Congress Giving

Just Compensation Jurisdiction to the Court of Federal

Claims is Unconstitutional, 60 Villanova L. Rev. 83

(2015) (“the Goodman Article”). Professor Goodman’s

scholarship summarized the historical development

of the Court of Federal Claims, including the curious

way in which the court was left with jurisdiction over

4

constitutional just compensation claims, even though the

court, in 1982, was transformed from an Article III court

to an Article I court. Id. at 124–36.

Professor Goodman’s analysis soundly concludes that

the values underlying Article III, such as an independent

judiciary, are strongly implicated in takings claims. Id.

at 85–95. “Article III ... works ‘to guarantee that the

process of adjudication itself remain[s] impartial.’” Id.

at 94 (quoting N. Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 58 (1982) (plurality opinion)). That

independence and the need to avoid an appearance of

undue Congressional or Executive Branch influence are

strong reasons why a claim for just compensation must be

decided under the protections of Article III.

The Goodman Article explains that this “Court

explicitly rejected the notion that takings claims are the

province of the legislature back in 1893.” Goodman, supra,

at 97 (citing and discussing Monongahela Navigation Co.

v. United States, 148 U.S. 312 (1893)). “The Takings Clause

thus cannot be said to be ‘historically understood as giving

the political Branches of Government’ any control at all

over the determination of just compensation.” Goodman,

supra at 98 (quoting N. Pipeline Constr., 458 U.S. at 66

(plurality opinion)).

Moreover, “[t]he Court has since made even clearer

that a waiver of sovereign immunity is not necessary for

citizens to file a takings claim.” Goodman, supra, at 102

(discussing Seaboard Air Line Ry. Co. v. United States,

261 U.S. 299, 302–03 (1923)). As this Court explained in

Seaboard Air Line: “Just compensation is provided for by

the Constitution and the right to it cannot be taken away

5

by statute. Its ascertainment is a judicial function.” 261

U.S. at 304.

And, as further noted by the Goodman Article, the selfexecuting nature of the Takings Clause has been accepted

for at least 80 years. See Goodman, supra, at 103 (“Were

there any doubt of that holding, the Court reiterated it

a decade later, in 1933, in Jacobs v. United States.”). In

Jacobs v. United States, 290 U.S. 13, 16 (1933), this Court

held that the right of a property owner “rested upon the

Fifth Amendment” and that “[s]tatutory recognition was

not necessary” to bring a claim for just compensation.

See also First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, Cal., 482 U.S. 304, 316

n.9 (1987) (explaining that the Court’s cases “make clear

that it is the Constitution that dictates the remedy for

interference with property rights amounting to a taking”);

Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 6

n.6 (1984) (“The owner’s right to bring such a suit derives

from ‘the self-executing character of the constitutional

provision with respect to condemnation . . . .’” (alteration

in original) (quoting United States v. Clarke, 445 U.S.

253, 257 (1980))).

The Goodman Article also highlights why takings

claims, as private rights, cannot be litigated in the Court

of Federal Claims even though that court’s decisions are

reviewed by the Federal Circuit, an Article III court.

See Goodman, supra, at 105–09; see also id. at 109 (“The

Federal Circuit review that is currently available would

also fail to meet the standard of the Northern Pipeline

concurring opinion, which stated that ‘traditional appellate

review by Art. III courts’ is not sufficient to make a court

a permissible ‘adjunct.’” (quoting Northern Pipeline, 458

U.S. at 91 (Rehnquist, J., concurring))).

6

Professor Goodman further demonstrated that a

takings claim is not the type of substantive federal right

that is created by Congress and can be assigned to a nonArticle III tribunal. See Goodman, supra, at 109–13. This

Court has extended the public rights doctrine to a limited

subset of claims that are either created by Congress or

closely intertwined with a federal regulatory scheme. See

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989);

Commodity Futures Trading Commission v. Schor, 478

U.S. 833 (1986). But, as the Goodman Article explains,

“[t]akings claims do not fit into this category” because

“Congress did not create takings claims.” Goodman,

supra, at 112.

Finally, the Goodman Article considers the various

factors this Court has considered over the years. See id.,

at 113–24. These factors, applied in cases such as Schor

and Stern v. Marshall, 564 U.S. 462 (2011), do not support

jurisdiction: “[E]very factor the Court has looked to . . .

militates against the Court of Federal Claims considering

takings cases.” Goodman, supra, at 121. In other words,

“none of the primary rationales the Court has applied to

justify the use of Article I courts weigh in favor of the

Court of Federal Claims considering takings claims.” Id.

at 120.

B. After the Goodman Article, Private Party

Litigants Started to Appreciate the Significance

of the Constitutional and Jurisdictional Flaw

Soon after the release of the Goodman Article, property

owners litigating takings claims began to appreciate the

significance of the constitutional and jurisdictional flaw. In

2015, Kevin Brott, together with his fellow plaintiffs, filed

7

a complaint seeking just compensation under the Fifth

Amendment in the U.S. District Court for the Western

District of Michigan, instead of the Court of Federal

Claims. The district court and the Court of Appeals for

the Sixth Circuit ultimately rejected Brott’s argument.

See generally Brott v. United States, 858 F.3d 425 (6th Cir.

2017). Brott’s case is now the subject the present petition

for writ of certiorari.

Similarly, in 2016, Michael Sammons filed a pro

se civil complaint in the U.S. District Court for the

Western District of Texas, seeking just compensation

for a regulatory takings claim. See Sammons v. United

States, No. SA-16-CV-1054-FB (W.D. Tex. filed Oct. 21,

2106). Similar to Brott and his fellow plaintiffs, Sammons

contended that an Article III court was the constitutionally

proper venue for his regulatory takings claim. The district

court and the U.S. Court of Appeals for the Fifth Circuit

rejected Sammons’s arguments. See generally Sammons

v. United States, 860 F.3d 296 (5th Cir. 2017).

Beyond the Fifth and Sixth Circuits, the constitutional

issue has been brought to the Federal Circuit’s attention.

See Fairholme Funds, Inc. v. United States, No. 17–1015,

slip op. at 8 (Fed. Cir. Mar. 14, 2017) (non-precedential)

(recognizing that the jurisdictional questions must be

addressed by the Court of Federal Claims). The Federal

Circuit did not have the opportunity to evaluate the

argument but noted that the Court of Federal Claims will

likely have to address it in the first instance.

Most recently, and after much deliberation, Trin‑Co

recognized the significance of the constitutional and

jurisdictional issues identified by the Goodman Article and

8

raised by the Brott and Sammons litigations. Trin-Co’s

takings case had been proceeding through discovery and

was approaching trial. Trin-Co’s concern, however, was

that a trial on the merits might be for naught if conducted

in a forum lacking constitutional authority to decide the

takings claim. Regardless of who might have prevailed at

trial, the losing party could have asked for the judgment to

be vacated on appeal because the Court of Federal Claims

lacked the constitutional authority to rule on the claim.

Trin-Co’s litigation has dragged on for several years,

requiring the Federal Circuit’s intervention to reverse an

erroneous dismissal of the suit. The drawn-out litigation

has been a financial drain on the family-run business.

Rather than spend more money on a trial before the Court

of Federal Claims—a trial that could be vacated for want

of constitutional jurisdiction—Trin‑Co filed a motion to

transfer to an Article III court. The Court of Federal

Claims saw the significance with the jurisdictional dispute

and stayed the case, pending this Court’s decision in Oil

States Energy Services LLC v. Greene’s Energy Group,

LLC, No. 16–712 (U.S.).

II. The Uncertainty Associated with This Important

Question of Law Requires This Court’s Intervention

A.

The Petition Raises a Federal Question

of Utmost Importance, as Revealed by the

Goodman Article

The sheer analytical thoroughness of the Goodman

Article is reason enough for this Court to grant the petition.

The Goodman Article brought to light a serious and

substantial constitutional infirmity underlying Congress’s

9

decision to restrict a subset of Fifth Amendment takings

claims to the Court of Federal Claims. Indeed, “the Court

of Federal Claims is exceptional in that it is currently the

only non-Article III entity being asked to adjudicate a

constitutional, as opposed to statutory, right.” Goodman,

supra, at 113. Such a highly unusual allocation of judicial

authority to the Legislative Branch warrants this Court’s

consideration.

Other commentators have since noted the importance

of the federal question raised by the Goodman Article and

the present petition. See Trevor Burrus, Does the Seventh

Amendment Mean What it Says?, Cato At Liberty, July

24, 2107 (“Indeed, takings cases are exactly the sort of

cases that should be resolved by a jury trial, because they

involve factual determinations with which members of the

local community are likely best acquainted.”) 2; George

Leef, If The Feds Grab Your Land, Why Can’t You Get A

Jury Trial On Compensation?, Forbes, Dec. 22, 2017 (“If

the Sixth Circuit’s decision stands, a large hole will have

been blown in the right of property owners to obtain just

compensation when their land is taken.”). 3

These developments have only exacerbated the

existing uncertainty in the law. See Stern, 564 U.S. at 494

(“We recognize that there may be instances in which the

distinction between public and private rights—at least

as framed by some of our recent cases—fails to provide

2.  https://www.cato.org/blog/does-seventh-amendmentmean-what-it-says.

3.  https://w w w.forbes.com/sites/georgeleef/2017/12/22/

if-the-feds-grab-your-land-why-cant-you-get-a-jury-trial-oncompensation/.

10

concrete guidance as to whether, for example, a particular

agency can adjudicate legal issues under a substantive

regulatory scheme.”); N. Pipeline Constr., 458 U.S. at 91

(Rehnquist, J., concurring) (“The cases dealing with the

authority of Congress to create courts other than by use of

its power under Art. III do not admit of easy synthesis.”);

Goodman, supra, at 95 (“The Supreme Court’s Article

III jurisprudence is not a model of consistency, and the

Court does not always speak with one voice.”); Richard B.

Saphire & Michael E. Solimine, Shoring Up Article III:

Legislative Court Doctrine in the Post CFTC v. Schor

Era, 68 B.U. L. Rev. 85, 151 n.353 (1988) (describing the

Court’s jurisprudence on legislative courts as “amorphous

and arcane”).

The present unanswered questions also contribute

to the uncertainty that is not uncommon in takings

jurisprudence. For example, in Lingle v. Chevron U.S.A.

Inc., this Court abrogated precedent that had stood for

twenty-five years. 544 U.S. 528, 532 (2005) (abrogating

Agins v. City of Tiburon, 447 U. S. 255 (1980)). And

in Kelo v. City of New London, the Court adopted an

interpretation of the Public Use Clause that many viewed

as departing from accepted meaning. 545 U.S. 469, 517

(2005) (Thomas, J., dissenting) (“A second line of this

Court’s cases also deviated from the Public Use Clause’s

original meaning by allowing legislatures to define the

scope of valid ‘public uses.’”); see also Ilya Somin, Putting

Kelo in Perspective, 48 Conn. L. Rev. 1551, 1553 (2016)

(“More than ten years after it was decided, Kelo v. City of

New London remains one of the modern Supreme Court’s

most controversial rulings.”).

11

Private property owners continue to litigate Fifth

Amendment takings claims in the Court of Federal

Claims, but their decision to do so must not be seen

as an acceptance of the constitutionality of the court’s

jurisdiction. Instead, their choice may be reflective of their

counsel’s preferences. Attorneys who regularly litigate

before the Court of Federal Claims are a specialized

segment of the bar, similar to patent attorneys. When

attorneys specialize, they develop preferred practices,

which here likely includes litigating at the Court of

Federal Claims. The court has its own rules, it is

conveniently located in the District of Columbia, and cases

are not tried before juries. These features, unrelated to

the constitutional question presented, likely entice many

property owners to bring their Fifth Amendment takings

claims in the Court of Federal Claims. Until this Court

steps in, these pragmatic incentives may convince private

party litigants to accept the status quo and overlook the

constitutional infirmity with 28 U.S.C. § 1491.

B. The Decisions by the Fifth and Sixth Circuits

Do Not Adequately Answer the Question

The decisions of the Fifth and Sixth Circuits, in

Sammons and Brott, respectively, do not adequately

resolve the question presented here. Rather than reiterate

the reasoned arguments in the Brott and Sammons

petitions for a writ of certiorari, Trin‑Co allows those

petitions to speak for themselves.

One additional point is worth noting. Neither the

Court of Federal Claims nor the Federal Circuit has yet

addressed the constitutional and jurisdictional question

presented here. The Court of Federal Claims may have the

12

opportunity to do so in Trin-Co’s litigation, but the court

has stayed the case until this Court issues a decision in Oil

States. But, as explained infra, Oil States may not resolve

the question presented here. If that is the case, then

the Court of Federal Claims will have to independently

assess its constitutionally permissible jurisdiction, and the

Federal Circuit will review on appeal. The result could

conflict with decisions of the Fifth and Sixth Circuits in

Sammons and Brott, respectively.

Without an answer to the important federal question

raised here, Trin-Co and other property owners are

almost certainly facing several more years of jurisdictional

uncertainty. Trin-Co respectively submits that the

resources of both the federal courts, the private litigants,

and the federal defendant would be more efficiently

utilized if this Court were to grant the petition and answer

the question presented.

III. This Court’s Eventual Decision in Oil States May

Not Resolve the Jurisdictional Incertitude Now

Associated with Fifth Amendment Takings Claims

Currently pending before the Court is Oil States

Energy Services LLC v. Greene’s Energy Group, LLC,

No. 16–712 (U.S.). The Court heard oral argument on

November 27, 2017. There, the question was whether

inter partes review, an administrative proceeding in

the U.S. Patent and Trademark Office used to assess

the patentability of issued patent claims, violates the

Constitution by extinguishing private property rights in

a non-Article III forum and without a jury.

13

The Court’s resolution of Oil States may create a path

towards answering the questions raised by the present

petition. If, for instance, the Court rules that inter partes

review is unconstitutional because patent validity must

be adjudicated in Article III courts, then it is difficult

to see how the Court of Federal Claims’ adjudication

of a Fifth Amendment takings claim can be upheld as

constitutionally permissible.

But even if the Court upholds the constitutionality of

inter partes review of patents, that outcome would not

definitively answer the present question. Patent rights

may or may not be the equivalent of personal property

rights. See 35 U.S.C. § 261 (stating that “patents shall have

the attributes of personal property” but “[s]ubject to the

provisions of [Title 35], patents shall have the attributes

of personal property”). And real property—the type at

issue here and in Trin-Co’s case—concerns quintessential

property rights, forming the basis of centuries of legal

rules and norms that have been tried at common law

before juries.

Along that line, the United States itself distinguished

real property rights from patent rights. In its brief in the

Oil States case, the United States stated: “[P]atents for

land and inventions ‘are not in all things alike.’” Brief for

the Federal Respondent, at 50, Oil States Energy Services

LLC v. Greene’s Energy Group, LLC, No. 16–712 (U.S.)

(quoting United States v. Am. Bell Tel. Co., 167 U.S.

224, 238 (1897)); see also id. at 14 (“[T]he government in

issuing a patent does not (as with a land patent) convey

title to something it previously owned, but instead grants

a limited franchise whose scope and contours are wholly

defined by the government itself.”). The Government’s

14

distinctions are sufficient to expect that an affirmance in

Oil States—i.e., holding that patent validity need not be

adjudicated in an Article III court—will not definitively

put to rest the constitutional deficiency detailed in the

Goodman Article.

Finally, and at a minimum, this Court should grant

the petition, vacate the Sixth Circuit’s decision, and

remand the case so that the Sixth Circuit can reconsider

its decision in light of this Court’s decision in Oil States.

CONCLUSION

For the above reasons and those stated in the petition,

this Court should grant a writ of certiorari.

Respectfully submitted,

Wesley Higbie

Matthew J. Dowd

Higbie Law Office

Counsel of Record

3030 Bridgeway Boulevard,

Dowd PLLC

1717 Pennsylvania Avenue, NW

Suite 105

Suite 1025

Sausalito, CA 94965

Washington, D.C. 20006

(202) 573-3853

mjdowd@dowdpllc.com

Counsel for Amici Curiae

January 22, 2018