Opposition 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

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. WOOD

Acting Assistant Attorney

General

BRIAN C. TOTH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Tucker Act, 28 U.S.C. 1491(a)(1), and

the Little Tucker Act, 28 U.S.C. 1346, violate Article III

of the Constitution and the Seventh Amendment by

granting the United States Court of Federal Claims exclusive jurisdiction over claims seeking more than

$10,000 in compensation for asserted Fifth Amendment

takings of property by the United States.

(I)

TABLE OF CONTENTS

Page

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

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

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

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

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

Bakelite Corp., Ex parte, 279 U.S. 438 (1929) .............. 10, 12

Block v. North Dakota, 461 U.S. 273 (1983) ....................... 16

Boom Co. v. Patterson, 98 U.S. 403 (1879) .......................... 14

Chicago & N. W. Transp. Co. v. Kalo Brick & Tile

Co., 450 U.S. 311 (1981) ........................................................ 2

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) .................................................... 23

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) ................ 5, 16

Elgin v. Department of the Treasury, 567 U.S. 1

(2012) .................................................................................... 20

FAA v. Cooper, 566 U.S. 284 (2012) ..................................... 21

First English Evangelical Lutheran Church of

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

(1987) .................................................................... 6, 17, 18, 19

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ....................... 12

Haggart v. Woodley, 809 F.3d 1336 (Fed. Cir.),

cert. denied, 136 S. Ct. 2509 (2016) ................................... 20

Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005) ..... 20

Horne v. Department of Agric., 569 U.S. 513 (2013) ......... 16

Langford v. United States, 101 U.S. 341 (1880) ................. 11

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949).................................................. 15, 16, 21

(III)

IV

Cases—Continued:

Page

Lehman v. Nakshian, 453 U.S. 156 (1981) ................... 13, 22

Library of Congress v. Shaw, 478 U.S. 310 (1986) ............. 10

Lynch v. United States, 292 U.S. 571 (1934) ...................... 16

McElrath v. United States, 102 U.S. 426 (1880)............. 7, 22

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893)........................................................ 14, 22

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1856) .................................. 9, 10

Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982) ...................................... 9, 10 22

OPM v. Richmond, 496 U.S. 414 (1990) .............................. 15

Otay Mesa Prop., L.P. v. United States, 779 F.3d

1315 (Fed. Cir. 2015) .......................................................... 20

Preseault v. ICC, 494 U.S. 1 (1990) ...................2, 4, 16, 19, 20

Reeside v. Walker, 52 U.S. (11 How.) 272 (1851) ................ 15

Regional Rail Reorganization Act Cases, 419 U.S.

102 (1974) ............................................................................. 16

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 16

Schillinger v. United States, 155 U.S. 163 (1894) ........ 16, 18

Stern v. Marshall, 564 U.S. 462 (2011) .................. 7, 9, 10, 13

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ..... 20

United States v. Bormes, 568 U.S. 6 (2012) .................. 13, 21

United States v. Clarke, 445 U.S. 253 (1980) ...................... 14

United States v. Lee, 106 U.S. 196 (1882) ............... 11, 14, 15

United States v. Mitchell, 463 U.S. 206

(1983) .............................................................10, 11, 15, 18, 21

United States v. Sherwood, 312 U.S. 584 (1941) ........... 15, 22

United States v. White Mountain Apache Tribe,

537 U.S. 465 (2003).............................................................. 15

Webster v. Doe, 486 U.S. 592 (1988) ..................................... 18

Williams v. United States, 289 U.S. 553 (1933) ................. 12

V

Cases—Continued:

Page

Williamson Cnty. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172

(1985) .................................................................................... 19

Wisconsin Cent. Ltd. v. Public Serv. Comm’n,

95 F.3d 1359 (7th Cir. 1996) ............................................... 20

Constitution, statutes, regulations, and rules:

U.S. Const.:

Art. I ................................................................. 8, 13, 21, 22

§ 9, Cl. 7 (Appropriations Clause) ...................... 15, 21

Art. III ..................................................................... passim

§ 1 ................................................................................. 8

Amend. V ................................................................. passim

Just Compensation Clause ................................... 6, 17

Amend. VII .................................................... 5, 7, 8, 22, 23

Act of Mar. 3, 1887, ch. 359, 24 Stat. 505 ....................... 11, 13

Act of July 28, 1953, ch. 253, § 1, 67 Stat. 226 ..................... 12

Administrative Procedure Act, 5 U.S.C. 702 ...................... 21

Federal Courts Improvement Act of 1982, Pub. L.

No. 97-164, Tit. I, § 105, 96 Stat. 26-28 ............................. 13

Federal Tort Claims Act, 28 U.S.C. 2671 et seq. ................ 21

Little Tucker Act, 28 U.S.C. 1346 .......................................... 4

28 U.S.C. 1346(a)(1) ......................................................... 13

28 U.S.C. 1346(a)(2) ......................................................... 13

National Trails System Act Amendments of 1983,

Pub. L. No. 98-11, Tit. II, § 208, 97 Stat. 48 ....................... 2

National Trails System Act, 16 U.S.C. 1241 et seq............... 1

16 U.S.C. 1247(d) (§ 8(d)) ........................................ 2, 3, 19

Tucker Act, 28 U.S.C. 1491 ............................................... 4, 18

28 U.S.C. 1491(a)(1) ..................................................... 4, 13

28 U.S.C. 171(a) ..................................................................... 13

VI

Statutes and rules—Continued:

Page

28 U.S.C. 1295 ........................................................................ 13

28 U.S.C. 1331 .......................................................................... 5

28 U.S.C. 2402 .................................................................... 5, 13

42 U.S.C. 1983 ........................................................................ 23

49 U.S.C. 10903(a) ................................................................... 2

49 C.F.R.:

Section 1152.29(a) .............................................................. 2

Section 1152.29(d)(1) ......................................................... 3

Section 1152.29(e)(2) ......................................................... 3

Ct. Cl. R. 147(b) (1976) (28 U.S.C. App. at 635 (1976)) ...... 13

Sup. Ct. R. 10 ......................................................................... 23

Miscellaneous:

2 Wilson Cowen et al., The United States Court of

Claims: A History (1978) ............................................ 11, 12

Louis L. Jaffe, The Right to Judicial Review II,

71 Harv. L. Rev. 769 (1958) ............................................... 21

Mid-Michigan R.R.—Abandonment Exemption—in

Muskegon Cnty., In re, No. AB 364 (Sub-No. 16X)

(STB July 27, 2015), https://www.stb.gov/Decisions/

readingroom.nsf/WEBUNID/9B4391A7DDFFF

55885257E8F004283A3?OpenDocument ........................... 3

In the Supreme Court of the United States

No. 17-712

KEVIN BROTT, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-25a)

is reported at 858 F.3d 425. The opinion of the district

court (Pet. App. 26a-37a) is not published in the Federal

Supplement but is available at 2016 WL 5922412.

JURISDICTION

The judgment of the court of appeals was entered on

May 31, 2017. A petition for rehearing was denied on

August 8, 2017 (Pet. App. 46a). The petition for a writ

of certiorari was filed on November 6, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1969, Congress enacted the National Trails

System Act (Trails Act), 16 U.S.C. 1241 et seq., to establish a nationwide system of recreational, scenic, and historic trails. In 1983, Congress amended the Trails Act

(1)

2

by adding Section 8(d), which was adopted “in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service.” National Trails System Act Amendments of 1983,

Pub. L. No. 98-11, Tit. II, § 208, 97 Stat. 48 (16 U.S.C.

1247(d)). Section 8(d) accomplishes that goal by allowing the Interstate Commerce Commission and its successor, the Surface Transportation Board (Board), “to

preserve for possible future railroad use rights-of-way

not currently in service and to allow interim use of the

land as recreational trails.” Preseault v. ICC, 494 U.S.

1, 6 (1990).

In general, a railroad may not abandon one of its

lines without the Board’s approval, and the Board has

“plenary” authority to determine whether an abandonment is appropriate. Chicago & N. W. Transp. Co. v.

Kalo Brick & Tile Co., 450 U.S. 311, 320 (1981); see

49 U.S.C. 10903(a). “Section 8(d) provides that a railroad wishing to cease operations along a particular

route may negotiate with a State, municipality, or private group that is prepared to assume financial and

managerial responsibility for the right-of-way.” Preseault, 494 U.S. at 6-7. “If the parties reach agreement,

the land may be transferred to the trail operator for interim trail use, subject to [Board]-imposed terms and

conditions.” Id. at 7. Section 8(d) provides that “such

interim use shall not be treated, for purposes of any law

or rule of law, as an abandonment of the use of such

rights-of-way for railroad purposes.” 16 U.S.C. 1247(d).

The regulations implementing Section 8(d) provide

that, when a railroad seeks to abandon one of its lines,

a qualifying governmental or private organization may

file a comment with the Board indicating an interest in

sponsoring the line for interim trail use. 49 C.F.R.

3

1152.29(a). If the prospective sponsor satisfies Section

8(d)’s requirements, and if the railroad “agrees to negotiate an interim trail use/rail banking agreement, then

the Board will issue” a Notice of Interim Trail Use or

Abandonment (NITU). 49 C.F.R. 1152.29(d)(1). An

NITU affords a 180-day period for negotiation (which

may be extended) and authorizes the railroad “to fully

abandon the line if no agreement is reached” within that

period. Ibid.

If the railroad and the prospective sponsor do not

reach an agreement within the negotiation period, the

railroad has 60 days to decide whether to consummate

abandonment of the line. 49 C.F.R. 1152.29(e)(2). If it

does not notify the Board during that time that it has

abandoned the line, “the authority to abandon will automatically expire.” Ibid.

2. Petitioners claim to own real property underlying

portions of a 3.35-mile right-of-way that was previously

used by the Mid-Michigan Railroad (Mid-Michigan).

After Mid-Michigan notified the Board that it wished to

abandon the line, the Board issued two NITUs (one on

May 19, 2009 and one on July 12, 2010). Mid-Michigan

and a prospective trail-sponsor engaged in negotiations,

and the Board extended the negotiation period several

times. 1

Petitioners assert that the Board’s issuance of the

NITUs constituted a taking of their property for which

the United States owes just compensation under the

Fifth Amendment. Petitioners’ theory is that but for

the issuance of the NITUs, Mid-Michigan would have

In re Mid-Michigan R.R.—Abandonment Exemption—in

Muskegon Cnty., No. AB 364 (Sub-No. 16X), at 1 (STB July 27,

2015), https://www.stb.gov/Decisions/readingroom.nsf/WEBUNID/

9B4391A7DDFFF55885257E8F004283A3?OpenDocument.

1

4

abandoned the right-of-way and thereby unburdened

their properties of rail easements.

Petitioners filed a complaint seeking just compensation in the United States Court of Federal Claims

(CFC). Pet. App. 27a & n.1; see Brott v. United States,

No. 14-cv-567 (filed July 3, 2014). Their complaint invoked the Tucker Act, 28 U.S.C. 1491, which grants the

CFC jurisdiction over “any claim against the United

States founded either upon the Constitution, or any Act

of Congress or any regulation of an executive department, or upon any express or implied contract with the

United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. 1491(a)(1).

That grant of jurisdiction includes claims seeking just

compensation for the taking of private property. See,

e.g., Preseault, 494 U.S. at 11-12. The CFC’s Tucker

Act jurisdiction is generally exclusive, but the Little

Tucker Act, 28 U.S.C. 1346, grants federal district

courts concurrent jurisdiction over claims seeking

$10,000 or less.

3. While their complaint was pending before the

CFC, petitioners filed this suit in the United States District Court for the Western District of Michigan asserting an identical takings claim under the Little Tucker

Act. Pet. App. 26a-27a. 2 Although petitioners sought

more than $10,000, they asserted that the Little

Tucker’s Act’s $10,000 cap violates Article III of the

Constitution by requiring just-compensation claims exceeding that amount to be brought in a non-Article III

court. Id. at 27a-28a. Petitioners further asserted that

although a statute specifies that takings claims brought

under the Little Tucker Act “shall be tried by the court

Petitioners’ suit in the CFC has been stayed pending the outcome of this suit. Pet. App. 2a n.1.

2

5

without a jury,” 28 U.S.C. 2402, the Seventh Amendment entitled them to a jury trial. Pet. App. 28a. And

petitioners sought a declaratory judgment that the relevant statutes are unconstitutional. Ibid.

The district court dismissed petitioners’ complaint.

Pet. App. 26a-37a. The court explained that “longestablished precedent” makes clear that the Tucker Act

validly grants the CFC exclusive jurisdiction over

claims seeking more than $10,000 in compensation for

an asserted taking of property by the United States. Id.

at 30a. The court therefore dismissed petitioners’ justcompensation claim for lack of jurisdiction and dismissed their declaratory-judgment claim for failure to

state a claim. Id. at 36a-37a.

4. The court of appeals affirmed. Pet. App. 1a-25a.

a. The court of appeals first explained that, as a statutory matter, “the Tucker Act vests in the [CFC] exclusive jurisdiction” over just-compensation claims seeking more than $10,000. Pet. App. 6a. “Accordingly, a

claim for just compensation * * * must be brought in

the [CFC] in the first instance, unless Congress has

withdrawn the Tucker Act grant of jurisdiction in the

relevant statute.” Ibid. (quoting Eastern Enters. v. Apfel, 524 U.S. 498, 520 (1988) (plurality opinion)). The

court thus held that petitioners could not invoke the

general federal-question statute, 28 U.S.C. 1331, to

bring their just-compensation claim in district court.

Pet. App. 7a-9a.

b. The court of appeals next rejected petitioners’

contention that the Tucker Act’s grant of exclusive jurisdiction to the CFC violates Article III. Pet. App. 9a22a. The court emphasized that suits against the United

States must be “premised on a waiver of sovereign immunity,” which Congress may “condition” by “requiring

6

that such suits be brought in a specific forum or by limiting the means by which a right is enforced.” Id. at 9a10a. The court explained that Congress exercised that

authority in the Tucker Act and the Little Tucker Act

by waiving immunity for certain claims against the

United States—including just-compensation claims—

while specifying that claims seeking more than $10,000

must be brought in the CFC. Id. at 11a-12a.

The court of appeals rejected petitioners’ contention

that just-compensation claims do not require a waiver

of sovereign immunity. Pet. App. 13a-17a. The court

recognized that the Fifth Amendment’s Just Compensation Clause is “self-executing” in that it “creates a

‘right to recover just compensation’ ” that does not require further statutory recognition. Id. at 13a (quoting

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987)

(First English)) (citation omitted). But the court explained that the existence of that right “does not mean

that the United States has waived sovereign immunity

such that the right may be enforced by suit for money

damages.” Ibid. The court noted that petitioners had

“cited no case in which the Fifth Amendment has been

found to provide litigants with the right to sue the government for money damages in federal district court.”

Id. at 14a.

The court of appeals also emphasized that “significant history contradicts [petitioners’] argument.” Pet.

App. 15a. From the Nation’s Founding until 1855, when

Congress created the Court of Claims, a property

owner seeking just compensation from the United

States had no judicial recourse and instead “had to petition Congress directly for a private act appropriating

the necessary funds.” Ibid. Even after 1855, the Court

7

of Claims’ authority to award just compensation for takings remained uncertain until 1887, when Congress enacted the Tucker Act. Id. at 15a-17a. The court of appeals concluded that this history confirms that “[t]he

Tucker Act’s waiver of sovereign immunity * * * is a

necessary ingredient for just-compensation claims

brought against the United States.” Id. at 17a.

Based in part on that conclusion, the court of appeals

held that petitioners’ just-compensation claims “are

‘public right’ claims that Congress may assign to a nonArticle III court” like the CFC. Pet. App. 17a. The

court explained that although suits involving private

rights generally must be heard by Article III courts,

“[t]he public rights doctrine allows Congress to remove

consideration of certain matters from the judicial

branch and to assign such consideration to legislative

courts or administrative agencies.” Ibid. (citing Stern

v. Marshall, 564 U.S. 462, 488-492 (2011)). And the

court added that although the outer boundaries of the

doctrine are not settled, the paradigmatic example of a

public-right suit that Congress may assign to a nonArticle III court is a suit against the United States that

could not be brought at all absent a waiver of sovereign

immunity. Id. at 18a-19a.

c. Finally, the court of appeals held that the Seventh

Amendment does not entitle petitioners to a jury trial.

Pet. App. 22a-24a. The court explained that, under this

Court’s longstanding precedent, suits against the

United States for money damages “are not controlled

by the Seventh Amendment” because Congress’s authority to condition a waiver of sovereign immunity includes the authority to prescribe “rules of practice.” Id.

at 23a (quoting McElrath v. United States, 102 U.S. 426,

440 (1880)).

8

5. The court of appeals denied rehearing en banc

with no judge requesting a vote. Pet. App. 46a.

ARGUMENT

Petitioners renew their contention (Pet. 8-37) that

Congress violated Article III and the Seventh Amendment by granting the CFC exclusive jurisdiction to hear

Fifth Amendment claims seeking more than $10,000 in

just compensation from the United States. The court of

appeals correctly rejected that contention, and its decision does not conflict with any decision of this Court or

another court of appeals. To the contrary, petitioners

do not cite any decision, by any court, endorsing their

assertion that takings claims must be tried before juries

in Article III courts. That assertion is particularly implausible because for most of our Nation’s history—

including the first 165 years after the Founding—

property owners seeking compensation for asserted

takings have been required to present their claims directly to Congress or to an Article I court. The petition

for a writ of certiorari should be denied. 3

1. The court of appeals correctly held that Congress

may require property owners seeking compensation for

asserted takings to file their claims in the CFC.

a. Article III provides that “[t]he judicial Power of

the United States, shall be vested in one supreme Court,

and in such inferior Courts as the Congress may from

time to time ordain and establish.” U.S. Const. Art. III,

§ 1. This Court has “long recognized that, in general,

Congress may not ‘withdraw from [the Article III

courts] any matter which, from its nature, is the subject

A related question is presented in the petition for a writ of certiorari in Sammons v. United States, No. 17-795 (filed Nov. 28, 2017).

3

9

of a suit at the common law, or in equity, or in admiralty.’ ” Stern v. Marshall, 564 U.S. 462, 484 (2011) (citation omitted). The Court has thus held, for example,

that Congress may not vest non-Article III bankruptcy

judges with the power to enter judgment on “state common law” claims between “two private parties.” Id. at

493; see Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50, 69-79 (1982) (Northern Pipeline) (plurality opinion).

At the same time, this Court has also long recognized

categories of cases that Congress may assign to nonArticle III courts. Those categories include courtmartial proceedings; cases arising in the federal territories and the District of Columbia; and “public rights”

matters that “are susceptible of judicial determination,

but which congress may or may not bring within the

cognizance of the courts of the United States, as it may

deem proper.” Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272, 284 (1856); see

Northern Pipeline, 458 U.S. at 63-72 (plurality opinion).

Although this Court has not fixed the outer limits of

the public-rights doctrine with precision, it has long

held that the public-rights cases Congress may assign

to non-Article III tribunals include claims against the

United States. Stern, 564 U.S. at 488-493. Congress’s

authority to assign such claims to non-Article III tribunals “may be explained in part by reference to the traditional principle of sovereign immunity.” Northern

Pipeline, 458 U.S. at 67 (plurality opinion). Because

claims against the United States may not proceed at all

“unless Congress consents,” “Congress may attach to

its consent such conditions as it deems proper,” includ-

10

ing by “requiring that the suits be brought in a legislative court.” Ex parte Bakelite Corp., 279 U.S. 438, 452

(1929); see Stern, 564 U.S. at 488-489.

In addition to sovereign immunity, “the public-rights

doctrine also draws upon the principle of separation of

powers, and a historical understanding that certain prerogatives were reserved to the political Branches of

Government.” Northern Pipeline, 458 U.S. at 67 (plurality opinion). When a particular class of matters may

be “conclusively determined by the Executive and Legislative Branches,” there “can be no constitutional objection to Congress’ employing the less drastic expedient of committing their determination to a legislative

court.” Id. at 68; see Murray’s Lessee, 59 U.S. (18 How.)

at 280-282.

b. As the court of appeals explained, the historical

treatment of claims seeking compensation for asserted

takings by the United States demonstrates that those

claims are not matters that “from [their] nature,” Stern,

564 U.S. at 484 (citation omitted), require adjudication

by an Article III court. Instead, they “historically could

have been”—and, indeed, long were—“determined exclusively by” Congress. Id. at 485 (citation omitted); see

Pet. App. 15a-17a.

“Before 1855 no general statute gave the consent of

the United States to suit on claims for money damages.”

United States v. Mitchell, 463 U.S. 206, 212 (1983). As

a result, “a citizen’s only means of obtaining recompense from the Government”—including compensation

for asserted Fifth Amendment takings—“was by requesting individually tailored waivers of sovereign immunity, through private Acts of Congress.” Library of

Congress v. Shaw, 478 U.S. 310, 316 n.3 (1986); see

Mitchell, 463 U.S. at 212-213.

11

In 1855, Congress established the Court of Claims

“to relieve the pressure created by the volume of private bills.” Mitchell, 463 U.S. at 212-213. The court’s

jurisdiction did not, however, extend to constitutional

claims. “Most property owners” seeking compensation

for asserted takings were thus “left to petition Congress for private relief, but Congress was neither compelled to act, nor to act favorably.” 2 Wilson Cowen et

al., The United States Court of Claims: A History 45

(1978) (Cowen). As a result, “many owners had suffered

the misfortune of holding a legal right for which there

was no enforceable legal remedy.” Ibid. That situation

led this Court to observe that “[i]t is to be regretted that

Congress has made no provision by any general law for

ascertaining and paying th[e] just compensation” owed

for takings of private property by the United States.

Langford v. United States, 101 U.S. 341, 343 (1880). 4

It was not until 1887 that Congress enacted the

Tucker Act, waiving sovereign immunity and conferring

on the Court of Claims jurisdiction to hear cases

“founded upon the Constitution.” Act of Mar. 3, 1887,

ch. 359, 24 Stat. 505; see Mitchell, 463 U.S. at 214;

Cowen 45-46. Thus, for the first century of our Nation’s

history, claims seeking compensation for asserted takings by the United States were resolved by Congress—

not by the courts.

A property owner could theoretically seek to recover by

“mak[ing] out the difficult proof ” that the government’s actions

amounted to an “implied-in-fact promise to pay,” bringing the claim

within the Court of Claims’ jurisdiction over contract claims. Cowen

45. Some owners also sought to recover their property (but not compensation) by bringing “an action to eject the Government official

who occupied the property.” Ibid.; see, e.g., United States v. Lee,

106 U.S. 196, 218-223 (1882).

4

12

c. Even after 1887, just-compensation claims against

the United States generally have not been adjudicated

by Article III courts. Although judges of the Court of

Claims had life tenure, this Court concluded in 1929 that

it was “a legislative court” and not “a constitutional

court established under Article III.” Bakelite, 279 U.S.

at 454; see Williams v. United States, 289 U.S. 553, 568571 (1933). The Court observed that the Court of

Claims was “a special tribunal to examine and determine claims for money against the United States.”

Bakelite, 279 U.S. at 452. The Court explained that

“[t]his is a function which belongs primarily to Congress

as an incident of its power to pay the debts of the United

States.” Ibid. The Court thus emphasized that the matters heard by the Court of Claims “include nothing

which inherently or necessarily requires judicial determination,” and that all of its cases “are matters which

are susceptible of legislative or executive determination

and can have no other save under and in conformity with

permissive legislation by Congress.” Id. at 453; see

Williams, 289 U.S. at 579-580.

In 1953, Congress declared that the Court of Claims

was “established under article III of the Constitution.”

Act of July 28, 1953, ch. 253, § 1, 67 Stat. 226. After it

did so, this Court confirmed the Court of Claims’ Article

III status in Glidden Co. v. Zdanok, 370 U.S. 530 (1962).

But even after the Court of Claims became an Article

III court in 1953, its trials continued to be conducted by

non-Article III “trial judges.” Cowen 95. “All cases

commenced in the court [we]re first referred to the trial

judges,” who “receive[d] the evidence” and “ma[d]e

findings of fact and recommendations for conclusions of

law.” Ibid. Trial judges did not enter final judgments,

but their findings were “presumed to be correct” when

13

reviewed by the Court of Claims’ Article III judges.

Ct. Cl. R. 147(b) (1976) (28 U.S.C. App. at 635 (1976)).

In 1982, Congress abolished the Court of Claims and

vested its functions in two new courts: the CFC and the

Court of Appeals for the Federal Circuit. See Federal

Courts Improvement Act of 1982, Pub. L. No. 97-164,

Tit. I, § 105, 96 Stat. 26-28; see also United States v.

Bormes, 568 U.S. 6, 12 n.4 (2012). The CFC (originally

called the Claims Court) is a legislative court “established under article I of the Constitution.” 28 U.S.C.

171(a). The CFC inherited the Court of Claims’ trial

jurisdiction under the Tucker Act, including exclusive

jurisdiction over claims seeking more than $10,000 in

compensation for asserted takings by the United

States. 28 U.S.C. 1491(a)(1). The CFC’s decisions are

reviewed by the Federal Circuit, an Article III court

that inherited the Court of Claims’ appellate functions.

28 U.S.C. 1295.

d. There is thus a “firmly established historical

practice,” Stern, 564 U.S. at 504-505 (Scalia, J., concurring), of determining just-compensation claims outside

the Article III courts. Indeed, for all but a few decades

of the Nation’s history—the period between 1953 and

1982—claimants have generally been required to seek

compensation either directly from Congress or in an Article I legislative court. And claimants have never had

a right to have their claims tried by a jury. 5

Since 1887, the Little Tucker Act has also allowed claims (including takings claims) seeking $10,000 or less to be brought in Article

III courts. Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see 28 U.S.C.

1346(a)(2). All such claims must be “tried by the court without a

jury.” 28 U.S.C. 2402. Only in actions seeking recovery of internal

revenue taxes or penalties under 28 U.S.C. 1346(a)(1) is a jury trial

available. See Lehman v. Nakshian, 453 U.S. 156, 161 & n.8 (1981).

5

14

2. Petitioners assert (Pet. 10-36) that property owners seeking compensation for asserted takings by the

United States are entitled to have their claims heard by

a jury in an Article III court. But petitioners offer no

sound basis for such a radical departure from centuries

of established practice.

a. Petitioners briefly assert (Pet. 35) that their position is consistent with history because “[t]here are

many examples of federal taking cases brought in federal district court with trial to a jury.” But the cases

petitioners cite were not actions brought by property

owners seeking compensation for takings by the United

States. Several, for example, involved condemnation

proceedings brought by the government. See, e.g., Monongahela Navigation Co. v. United States, 148 U.S.

312, 313 (1893) (Monongahela); Boom Co. v. Patterson,

98 U.S. 403, 404 (1879); see also United States v. Clarke,

445 U.S. 253, 255-258 (1980) (distinguishing such formal

condemnation proceedings from suits like this one).

Petitioners’ “celebrated example” (Pet. 36) vividly illustrates their error. Petitioners correctly note (ibid.)

that, in United States v. Lee, 106 U.S. 196 (1882), Robert

E. Lee’s son brought a suit challenging the United

States’ seizure of the land that became Arlington National Cemetery. But it was neither a suit seeking just

compensation nor one brought against the United

States. Instead, it was an “ejectment” action brought

against individual federal officers under state law and

seeking “to recover possession” of the land. Id. at 197198; see id. at 210 (“The case before us is a suit against

Strong and Kaufman as individuals, to recover possession of property.”). The Court in Lee recognized that

Lee’s son could not have sought compensation from the

15

United States. Id. at 222. And this Court has since reaffirmed that, when “[t]he Lee case was decided in

1882,” “there clearly was no remedy available by which

he could have obtained compensation for the taking of

his land.” Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 697 n.17 (1949).

b. There is thus no historical basis for petitioners’

asserted entitlement to have their claims tried in an Article III court. Petitioners nonetheless insist (Pet. 1014, 18) that “the Fifth Amendment is itself a waiver of

sovereign immunity” that entitles a property owner to

seek just compensation in federal district court. That

assertion contradicts a long line of this Court’s decisions, is not supported by the decision on which petitioners principally rely, and would not entitle petitioners to

relief even if it were correct.

i. “It is axiomatic that the United States may not be

sued without its consent,” Mitchell, 463 U.S. at 212, and

that “the terms of [the government’s] consent to be sued

in any court define that court’s jurisdiction to entertain

the suit,” United States v. Sherwood, 312 U.S. 584, 586

(1941). See, e.g., United States v. White Mountain

Apache Tribe, 537 U.S. 465, 472 (2003). Those principles of sovereign immunity apply with special force to

claims for monetary relief. The Appropriations Clause

of the Constitution provides that “No Money shall be

drawn from the Treasury, but in Consequence of Appropriations made by Law.” Art. I, § 9, Cl. 7. That provision independently bars a court from ordering the payment of money from the Treasury absent congressional

authorization. See OPM v. Richmond, 496 U.S. 414, 425

(1990); Reeside v. Walker, 52 U.S. (11 How.) 272, 291

(1851).

16

Because “[t]he rule that the United States may not

be sued without its consent is all embracing,” Lynch v.

United States, 292 U.S. 571, 581 (1934), this Court has

made clear that a waiver of sovereign immunity is required when a plaintiff seeks compensation for an asserted Fifth Amendment taking, see id. at 579-582;

Schillinger v. United States, 155 U.S. 163, 168 (1894).

The Court thus recognized that, before the Tucker Act,

“there clearly was no remedy available” for a property

owner seeking compensation for a taking. Larson, 337

U.S. at 697 n.17; see Block v. North Dakota, 461 U.S.

273, 280-281 (1983) (explaining that takings claimants

have been able to seek “monetary damages” only “since

passage of the Tucker Act”).

Consistent with that understanding, this Court has

recognized that the Tucker Act grants the CFC “exclusive jurisdiction to render judgment upon any claim

against the United States for money damages exceeding $10,000,” Eastern Enters. v. Apfel, 524 U.S. 498, 520

(1998) (plurality opinion), and that “a claim for just compensation under the Takings Clause” thus “must be

brought to the [CFC] in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction,” Horne v. Department of Agric., 569 U.S. 513, 527

(2013) (citation omitted); see, e.g., Preseault v. ICC, 494

U.S. 1, 11-12 (1990); Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1020 (1984). And the Court has also stated

that if Congress does withdraw Tucker Act jurisdiction

in a particular class of cases, the affected property owners “have no alternative remedy” by which to obtain

compensation. Horne, 569 U.S. at 528; see, e.g., Preseault, 494 U.S. at 11-12; Monsanto, 467 U.S. at 1019;

Regional Rail Reorganization Act Cases, 419 U.S. 102,

122-127 (1974).

17

ii. In asserting that the Fifth Amendment itself

waives sovereign immunity and allows them to sue in

federal district court, petitioners principally rely (Pet.

11-12) on this Court’s decision in First English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987). 6 That reliance is misplaced. The question presented in First English was

“whether the Just Compensation Clause requires the

government to pay for ‘temporary’ regulatory takings,”

or whether it merely provides a basis for enjoining such

takings going forward, without mandating backwardlooking compensation. Id. at 313. The Court held that

compensation is required, explaining that “in the event

of a taking, the compensation remedy is required by the

Constitution.” Id. at 316. In reaching that conclusion (and

rejecting the government’s contrary argument) the Court

stated that the Fifth Amendment is “ ‘self-executing’ ”

and that “it is the Constitution that dictates the remedy

for interference with property rights amounting to a

taking.” Id. at 315, 316 n.9 (citations omitted).

First English thus concluded that the Fifth Amendment is self-executing in that it creates a right to compensation for a taking. But “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 may be enforced

by suit for money damages.” Pet. App. 13a (quoting

Petitioners also quote (e.g., Pet. 10-11 & nn.9-10, 12-13 & n.12) a

variety of decisions recognizing the importance of property rights

and the protection provided to property owners by the Just Compensation Clause. Those decisions do not assist petitioners because

they neither address the sovereign immunity of the United States

nor hold that the Just Compensation Clause entitles property owners to an Article III forum.

6

18

First English, 482 U.S. at 315) (citation omitted). To

recover money damages against the United States, a

plaintiff must identify both a waiver of sovereign immunity and a “substantive right enforceable against the

United States for money damages.” Mitchell, 463 U.S.

at 216 (citations omitted); see Pet. App. 14a. The

Tucker Act waives sovereign immunity, but does not

create any substantive rights. Mitchell, 463 U.S. at 216.

Instead, “[a] substantive right must be found in some

other source of law, such as ‘the Constitution, or any Act

of Congress.’ ” Ibid. (quoting 28 U.S.C. 1491).

First English makes clear that the Fifth Amendment creates a substantive “right to recover just compensation for property taken by the United States” that

may be enforced under the Tucker Act without further

congressional action. 482 U.S. at 315 (citation omitted)

cf. Mitchell, 463 U.S. at 216 (“Not every claim invoking

the Constitution * * * is cognizable under the Tucker

Act.”). But First English did not involve a suit against

the United States, and the Court did not discuss—much

less overrule—the century’s worth of precedent establishing that the Tucker Act’s waiver of sovereign immunity is a necessary precondition to suits seeking just

compensation from the United States.

Accordingly, just a year later, Justice Scalia reaffirmed that “[n]o one would suggest that, if Congress

had not passed the Tucker Act, * * * the courts would

be able to order disbursements from the Treasury to

pay for property taken * * * without just compensation.” Webster v. Doe, 486 U.S. 592, 613 (1988) (Scalia,

J., dissenting) (citing Schillinger, 155 U.S. at 166-169).

It is not tenable to maintain, as petitioners must, that

the First English Court enshrined as law a proposition

that Justice Scalia—who joined the Court’s opinion—

19

dismissed as so implausible that “[n]o one would suggest [it].”

iii. In any event, petitioners would not be entitled to

prevail even if they were correct that the “self-executing”

nature of the Fifth Amendment would create a compensatory remedy absent a waiver of sovereign immunity

by Congress. The Fifth Amendment “does not prohibit

the taking of private property, but instead places a condition on the exercise of that power” by requiring the

payment of compensation. First English, 482 U.S. at

314. That compensation need not “be paid in advance of

or even contemporaneously with the taking”; instead,

“[a]ll that is required is the existence of a ‘reasonable,

certain and adequate provision for obtaining compensation.’ ” Preseault, 494 U.S. at 11 (citations omitted). “If

the government has provided an adequate process for

obtaining compensation, and if resort to that process

‘yields just compensation,’ then the property owner ‘has

no claim against the Government’ for a taking.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 194-195 (1985)

(brackets and citation omitted). In light of those principles, this Court has instructed that “taking claims

against the Federal Government are premature until

the property owner has availed itself of the process provided by the Tucker Act.” Id. at 195; see, e.g., Preseault, 494 U.S. at 11.

The “process provided by the Tucker Act” to obtain

just compensation was indisputably available to petitioners. Indeed, this Court has specifically held that “if

the rails-to-trails statute [i.e., Section 8(d)] gives rise to

a taking, compensation is available * * * under the

Tucker Act.” Preseault, 494 U.S. at 4. Numerous landowners with similar claims have availed themselves of

20

the Tucker Act process. See, e.g., Haggart v. Woodley,

809 F.3d 1336, 1341-1342 (Fed. Cir.) (class action involving 253 landowners), cert. denied, 136 S. Ct. 2509 (2016);

Hash v. United States, 403 F.3d 1308, 1310 (Fed. Cir.

2005) (class action involving roughly 200 landowners).

As petitioners do not appear to dispute, that process is

a “reasonable, certain and adequate provision for obtaining compensation.” Preseault, 494 U.S. at 11 (citations omitted). Thus, even if petitioners were right that

the Fifth Amendment is a “self-executing” waiver of

sovereign immunity that would entitle them to sue in an

Article III court if Congress had provided no other avenue for obtaining compensation, it would not follow

that they should be permitted to bypass the compensation procedure that Congress has established. 7

c. In addition to arguing that the Fifth Amendment

itself waives sovereign immunity, petitioners appear to

assert (Pet. 16-22) that the doctrine of sovereign immunity should be abandoned altogether. But petitioners do not acknowledge, much less provide a basis for

That is particularly true because the Tucker Act procedure includes an appeal to the Federal Circuit, an Article III court that

reviews the CFC’s findings of law de novo and its findings of fact for

clear error. See Otay Mesa Prop., L.P. v. United States, 779 F.3d

1315, 1321 (Fed. Cir. 2015). Courts of appeals have upheld compensation procedures that rely on initial determinations by administrative agencies, followed by judicial review. See Pet. App. 20a-21a

(collecting cases); see also, e.g., Wisconsin Cent. Ltd. v. Public Serv.

Comm’n, 95 F.3d 1359, 1369 (7th Cir. 1996) (“The Fifth Amendment

does not require a judicial determination of just compensation in the

first instance.”). In other contexts, this Court has likewise upheld

procedures in which Article III courts of appeals decide constitutional questions based on administrative records. See, e.g., Elgin v.

Department of the Treasury, 567 U.S. 1, 17-18 (2012); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994).

7

21

overruling, this Court’s repeated holdings that “[i]t is

axiomatic that the United States may not be sued without its consent.” Mitchell, 463 U.S. at 212; see p. 15,

supra. Over the years, Congress has broadly waived

that immunity in statutes like the Tucker Act and the

Little Tucker Act; the Federal Tort Claims Act, 28

U.S.C. 2671 et seq.; and the Administrative Procedure

Act, 5 U.S.C. 702. But the Court has not retreated from

the background principle that, absent such a waiver,

“[s]overeign immunity shields the United States from

suit.” Bormes, 568 U.S. at 9; see, e.g., FAA v. Cooper,

566 U.S. 284, 290-291 (2012). And by virtue of the Appropriations Clause, that is particularly true where, as

here, the suit seeks money damages. 8

d. Petitioners also assert (Pet. 14-16) that providing

just compensation for Fifth Amendment takings is an

“inherently judicial” function that cannot be performed

by Congress or assigned to an Article I court. But centuries of history dating to the Founding make clear that

resolving claims seeking compensation for asserted takings by the United States is not an “ ‘inherently judicial’ ” function because those matters “could be conclusively determined by the Executive and Legislative

Petitioners err in relying (Pet. 18-19) on Professor Jaffe’s articles discussing judicial review. Those articles principally address

suits seeking to enjoin agency actions alleged to be unlawful—a

form of relief that could in some circumstances be obtained through

a suit against federal officers even absent a waiver of sovereign immunity. See Larson, 337 U.S. at 690-691 & n.11. But Professor

Jaffe emphasized that “[t]he United States, of course, is not suable

without its consent.” Louis L. Jaffe, The Right to Judicial Review II, 71 Harv. L. Rev. 769, 769 (1958). He thus did not endorse

petitioners’ assertion that the United States may be sued for money

damages absent a waiver of sovereign immunity.

8

22

Branches.” Northern Pipeline, 458 U.S. at 68 (plurality

opinion) (citation and ellipses omitted).

This Court’s decision in Monongahela is not to the

contrary. Cf. Pet. Br. 14-15, 23-24, 31-34. As the court

of appeals explained, “Monongahela is inapposite” because it involved condemnation proceedings brought by

the United States under a statute that “provided a specific Article III court with jurisdiction.” Pet. App. 20a;

see Monongahela, 148 U.S. at 313. This Court held that,

having vested an Article III court with jurisdiction,

Congress could not dictate the result by specifying the

amount of compensation required under the Fifth

Amendment. Monongahela, 148 U.S. at 327-328. But

that holding does not suggest that only Article III

courts are capable of hearing just-compensation claims

against the United States. This Court specifically rejected such a suggestion in Williams, finding “nothing

which militates against [the Court of Claims’ status as

an Article I tribunal] in the requirement that the Court

of Claims * * * must award just compensation under

the Fifth Amendment.” 289 U.S. at 581.

3. Petitioners separately contend (Pet. 24-36) that

the Seventh Amendment entitles them to have their

claims heard by a jury. That contention lacks merit. “It

has long been settled that the Seventh Amendment

right to trial by jury does not apply in actions against

the Federal Government.” Lehman v. Nakshian, 453

U.S. 156, 160 (1981); see id. at 160-162 & n.9. This Court

has thus held that “Congress, despite the Seventh

Amendment, may dispense with a jury trial in suits

brought in the Court of Claims.” Sherwood, 312 U.S. at

587; accord McElrath v. United States, 102 U.S. 426,

440 (1880). And, as particularly relevant here, the

Court has specifically recognized that “[i]t is settled law

23

that the Seventh Amendment does not apply” in “suits

against the United States” arising from asserted “regulatory takings.” City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687, 719 (1999) (Del Monte

Dunes). 9

4. Petitioners do not contend that the court of appeals’ decision conflicts with any decision of another

court of appeals. To the contrary, they have “cited no

case in which the Fifth Amendment has been found to

provide litigants with the right to sue the government

for money damages in federal district court.” Pet. App.

14a. This case thus does not warrant this Court’s plenary review. Cf. Sup. Ct. R. 10. And petitioners likewise err in suggesting (Pet. 37) that their petition for a

writ of certiorari should be held pending the Court’s decision in Oil States Energy Services, LLC v. Greene’s

Energy Group, LLC, No. 16-712 (argued Nov. 27, 2017)

(Oil States). That case presents the question whether

inter partes review of patents before the Patent Trial

and Appeal Board is consistent with Article III and with

the Seventh Amendment. See U.S. Br. at 15-53, Oil

States, supra (No. 16-712). It does not implicate any

question about the validity of the Tucker Act; the sovereign immunity of the United States; the right to trial

by jury in Fifth Amendment takings cases; this Court’s

Petitioners observe (Pet. 36) that the Court held in Del Monte

Dunes that a plaintiff who sues under 42 U.S.C. 1983 to obtain just

compensation for a taking by a state or local government is entitled

to a jury trial. 526 U.S. at 721. But the Court emphasized “the limitations of [its] Seventh Amendment holding,” which rested on the

nature of a suit under Section 1983. Ibid. And, as noted above, the

Court specifically reaffirmed the “settled law” holding that the Seventh Amendment does not extend to just-compensation claims

“against the United States.” Id. at 719.

9

24

decision in First English; or any of the other issues petitioners raise. There is thus no reason to believe that

the Court’s decision in Oil States will have any bearing

on the very different question presented here.

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

BRIAN C. TOTH

Attorney

FEBRUARY 2018