Petition for Writ of Certiorari — Michael Sammons, Petitioner v. United States

Supreme Court briefNov 28, 2017

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------MICHAEL SAMMONS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

-----------------------------------------------------------------On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

November 28, 2017

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

1. Whether the Takings Clause of the Fifth

Amendment is a self-executing waiver of sovereign immunity, therefore vesting review of federal takings

suits in Article III courts.

2. Whether Congress violates Article III of the

Constitution to the extent Congress forces plaintiffs

with federal takings suits over $10,000 to litigate these

suits before the Article I judges of the United States

Court of Federal Claims.

PARTIES TO THE PROCEEDING

All parties to this proceeding are identified in the

caption of this petition.

iii

TABLE OF CONTENTS

Page

Questions Presented ............................................

Parties to the Proceeding .....................................

Table of Authorities .............................................

Introduction .........................................................

Orders & Opinions Below ....................................

Jurisdiction ..........................................................

Constitutional & Statutory Provisions Involved .....

Statement of the Case .........................................

A brief history of the Takings Clause and

judicial review of federal takings ..............

II.

The evolution of the U.S. Court of Federal

Claims from its predecessor’s founding in

1855 to the 1887 Tucker Act to the 1982

Federal Courts Improvement Act .............. 14

III.

This litigation ............................................ 19

Reasons to Grant the Petition ............................. 22

The circuits are split on whether this

Court’s decision in First English means

that the Takings Clause is a self-executing

waiver of sovereign immunity ................... 22

A. The Fourth and Federal Circuits see

the Takings Clause as a waiver ........... 23

B. The Fifth, Sixth, Ninth, and Eleventh

Circuits see no waiver ......................... 24

TABLE OF CONTENTS – Continued

Page

II.

Stern establishes the existence of a major

separation-of-powers problem with federal

takings claimants being forced to litigate in

the U.S. Court of Federal Claims ................ 26

III.

The courts below erred in their resolution

of the questions presented ......................... 29

A. The Takings Clause is a self-executing

waiver of sovereign immunity that in

turn vests review of federal takings

suits in Article III courts ..................... 29

B. Congress cannot force federal takings

claimants to litigate their suits before

the Article I judges of the U.S. Court of

Federal Claims .................................... 32

1. The power-mismatch problem ........ 33

2. The judicial-cognizance problem .... 34

IV.

The Court should evaluate certiorari here

in tandem with Oil States and Brott ......... 37

Conclusion............................................................ 38

APPENDIX

Fifth Circuit Opinion (June 19, 2017)................. App. 1

U.S. District Court Order (Mar. 9, 2017) ............. App. 8

U.S. Magistrate Judge Report and Recommendation (Feb. 7, 2017) ....................................... App. 12

Fifth Circuit Denial of Rehearing En Banc and

Panel Rehearing (Aug. 30, 2017) ................... App. 30

TABLE OF AUTHORITIES

Page

CASES

Arkansas Game & Fish Comm’n v. United

States, 568 U.S. 23 (2012)........................................36

Azul Pacifico, Inc. v. City of Los Angeles (Azul I),

948 F.2d 575 (9th Cir. 1991) ....................................25

Azul Pacifico, Inc. v. City of Los Angeles (Azul II),

973 F.2d 704 (9th Cir. 1992) ....................................25

Baltimore & Ohio R.R. Co. v. United States, 298

U.S. 349 (1936) ........................................................11

Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) ......32

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

2017) .................................................................. 24, 25

Brott v. United States, No. 17-712 (U.S.) ....................37

Cable Holdings of Georgia, Inc. v. McNeil Real

Estate Fund VI, Ltd., 953 F.2d 600 (11th Cir.

1992) ........................................................................25

Cable Holdings of Georgia, Inc. v. McNeil Real

Estate Fund VI, Ltd., 988 F.2d 1071 (11th Cir.

1993) ........................................................................26

Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) .................................. 10, 28

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) ................................... 12, 28

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986) .................................................32

Cotton v. United States, 52 U.S. 229 (1851) ...............35

TABLE OF AUTHORITIES – Continued

Page

Davis v. Passman, 442 U.S. 228 (1979) ......................30

Dolan v. City of Tigard, 512 U.S. 374 (1994) ................4

Evans v. Gore, 253 U.S. 245 (1920) .............................22

Ex parte Bakelite Corp., 279 U.S. 438 (1929) .............17

Fairholme Funds, Inc. v. United States, 681 F.

App’x 945 (Fed. Cir. 2017) .......................................20

First English Evangelical Lutheran Church of

Glendale v. Cnty. of Los Angeles, Cal., 482 U.S.

304 (1987) ........................................................ passim

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

Gordon v. United States, 69 U.S. 561 (1864) ..............15

Hair v. United States, 350 F.3d 1253 (Fed. Cir.

2003) ........................................................................24

Hendler v. United States, 952 F.2d 1364 (Fed.

Cir. 1991) ............................................................. 3, 24

Horne v. U.S. Dep’t of Agric., 135 S. Ct. 2419

(2015) .........................................................................8

Hurley v. Kincaid, 285 U.S. 95 (1932) ........................34

Jacobs v. United States, 290 U.S. 13 (1933) ...............28

Kelo v. City of New London, 545 U.S. 469 (2005) .......35

Kohl v. United States, 91 U.S. 367 (1876)...................12

Lawyer v. Hilton Head Public Service District

No. 1, 220 F.3d 298 (4th Cir. 2000) ................... 23, 26

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528

(2005) .......................................................................13

vii

TABLE OF AUTHORITIES – Continued

Page

Loveridge v. Hall, 792 F.3d 1274 (10th Cir. 2015) .......32

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ..... 3, 23, 24

Marbury v. Madison, 5 U.S. 137 (1803) ................ 30, 36

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) ............31

Miles v. Graham, 268 U.S. 501 (1925) ........................17

Minnesota v. Hitchcock, 185 U.S. 373 (1902)........ 16, 30

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) ........................................... 11, 36

Morrison v. Olson, 487 U.S. 654 (1991) ......................34

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) ...................................36

Oil States v. Energy Services LLC v. Greene’s Energy Group, LLC, No. 16-712 (U.S.) ........................37

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922) .......................................................................13

Stern v. Marshall, 564 U.S. 462 (2011)............... passim

United States v. Bormes, 568 U.S. 6 (2012) ................30

United States v. Clarke, 445 U.S. 253 (1980) .............12

United States v. Dickinson, 331 U.S. 745 (1947) ........35

United States v. Dow, 357 U.S. 17 (1958) ...................12

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) ...................................................38

United States v. Klein, 80 U.S. 128 (1872)............ 32, 33

United States v. Lynah, 188 U.S. 445 (1903) ..............13

viii

TABLE OF AUTHORITIES – Continued

Page

United States v. New River Collieries, Co., 262

U.S. 341 (1923) ........................................................36

United States v. O’Grady, 89 U.S. 641 (1875) ............15

Vanhorne’s Lessee v. Dorrance, 2 U.S. 304

(1795) ..................................................... 10, 11, 30, 36

W. Union Tel. Co. v. Foster, 247 U.S. 105 (1918) .........32

Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012) ........34

Ware v. United States, 626 F.2d 1278 (5th Cir.

1980) ........................................................ 2, 21, 22, 23

Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct.

1932 (2015) ..............................................................27

Williams v. United States, 289 U.S. 553 (1933)..........17

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V, Takings Clause ................ passim

U.S. Const. art. I.................................................. passim

U.S. Const. art. III ............................................... passim

U.S. Const. art. III, § 1 ..................................................5

U.S. Const. art. III, § 2 ...................................... 6, 17, 28

STATUTES

28 U.S.C. §§ 171–172 ..................................................27

28 U.S.C. § 171(a) ..........................................................7

28 U.S.C. § 172(a) ........................................................34

28 U.S.C. § 172(b) ..........................................................7

TABLE OF AUTHORITIES – Continued

Page

28 U.S.C. § 1254(1) ........................................................5

28 U.S.C. § 1346(a)(2) ............................................. 6, 16

28 U.S.C. § 1491(a) ............................................ 2, 20, 27

28 U.S.C. § 1491(a)(1) ...................................................6

28 U.S.C. § 1503 ..........................................................28

28 U.S.C. §§ 2501–2522 ..............................................34

28 U.S.C. § 2517(a) ......................................................27

28 U.S.C. § 2519 ..........................................................27

Act of February 24, 1855, ch. 122, 10 Stat.

612 ............................................................... 14, 16, 31

Act of March 3, 1863, ch. 92, 12 Stat. 765 ...... 14, 15, 16

Act of March 17, 1866, ch. 19, 14 Stat. 9 ....................15

Act of March 3, 1887 (Tucker Act & Little

Tucker Act), ch. 359, 24 Stat. 505 ..................... 16, 31

Federal Courts Improvement Act of 1982, Pub.

L. No. 97-164, 96 Stat. 25 .................................. 18, 33

Pub. L. No. 102–572, § 902, 106 Stat. 4506 (1992) .......19

OTHER

1 WM. BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND (1765) .............................................. 8, 35

2 BARON DE MONTESQUIEU, THE SPIRIT OF LAWS,

bk. XXVI, ch. 15 (T. Nugent transl., 1752)...... 8, 9, 35

H.R. REP. NO. 97-312 (1981).......................................18

TABLE OF AUTHORITIES – Continued

Page

James Madison, Property, NAT’L GAZETTE, Mar.

27, 1792, in 14 JAMES MADISON, THE PAPERS OF

JAMES MADISON (R. Rutland & T. Mason eds.

1983), http://bit.ly/2zRd1pB ......................................9

Jeffrey Gaba, John Locke & the Meaning of the

Takings Clause, 72 MISSOURI L. REV. 525

(2007) .........................................................................9

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (T. Cooley, ed.

1873) ........................................................................10

Magna Carta (1215)......................................................8

1 PHILIP NICHOLS, THE LAW OF EMINENT DOMAIN

(1917) .......................................................................13

Speech Proposing the Bill of Rights (June 8,

1789), in 12 JAMES MADISON, THE PAPERS OF

JAMES MADISON (C. Hobson & R. Rutland eds.

1979), http://bit.ly/2B3pzbb ....................................10

William Treanor, The Origins & Original Significance of the Just Compensation Clause of the

Fifth Amendment, 94 YALE L.J. 694 (1985) ........ 9, 10

Michael Sammons respectfully petitions this

Court for a writ of certiorari to review the judgment of

the Fifth Circuit in this case.

------------------------------------------------------------------

INTRODUCTION

This case is about the intersection of two of the

most important guarantees in the Constitution: the

guarantee of an independent judiciary under Article

III, and the guarantee that private property will not be

taken for public use without just compensation under

the Takings Clause of the Fifth Amendment. Petitioner

has a $900,000 takings claim against the federal government. He wanted to litigate this claim in the first

instance before a federal judge whose independence is

assured by grant of life tenure under Article III. So he

sued in federal district court.

This suit was then dismissed for lack of subjectmatter jurisdiction. The district court told Petitioner

that he must litigate his case before the only kind of

judge that Congress has presently authorized to hear

claims against the United States over $10,000: a termlimited Article I judge on the U.S. Court of Federal

Claims. Put another way, the district court held that

the political branches may take private property for

public use and then assign a non-independent judge to

decide whether a taking occurred at all—and, if so, how

much compensation will be paid (if any).

On appeal, the Fifth Circuit affirmed. The sole basis for this judgment was sovereign immunity: the

doctrine that a sovereign cannot be sued without its

consent. The Fifth Circuit reasoned that federal takings cannot be litigated in federal court absent a statutory waiver of sovereign immunity—a waiver to

which Congress can attach any condition that it wants.

The Fifth Circuit then pointed to the Tucker Act, 28

U.S.C. § 1491(a), as such a waiver for federal takings

suits—a waiver conditioned on the Court of Federal

Claims being the exclusive jurisdiction for all claims

against the United States over $10,000.

This analysis, however, flies in the face of First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, Cal., 482 U.S. 304 (1987). This

Court announced in First English that because “claims

for just compensation are grounded in the Constitution

itself,” the Takings Clause is a “self-executing” waiver

of sovereign immunity that affords “a basis for a court

to award money damages against the government.” Id.

at 315 & n.9. Article III dictates in turn that “[t]he judicial power shall extend to all cases . . . arising under

th[e] Constitution.”

The Fifth Circuit determined, however, that its

hands were tied by Ware v. United States, 626 F.2d

1278 (5th Cir. 1980), which implicitly found that “the

Fifth Amendment does not automatically waive sovereign immunity.” App. 5–6. Since Ware predates First

English, Petitioner asked the Fifth Circuit to grant rehearing en banc in order to overrule Ware. The Fifth

Circuit denied rehearing. See App. 30–31.

This places the Fifth Circuit at odds with the

Fourth Circuit and the Federal Circuit, both of which

have held that the Takings Clause is a self-executing

waiver of sovereign immunity. See Mann v. Haigh, 120

F.3d 34, 37 (4th Cir. 1997); Hendler v. United States,

952 F.2d 1364, 1371 (Fed. Cir. 1991). The Court should

grant review to resolve this critical split.

The Court should also grant review because

the decision below provides that Congress may force

plaintiffs with federal takings claims to litigate before

the Article I judges of the Court of Federal Claims. In

Stern v. Marshall, this Court emphasized that “[a] statute may no more lawfully chip away at the authority

of the Judicial Branch than it may eliminate it entirely.” 564 U.S. 462, 502–03 (2011). Hence, even if the

Tucker Act is understood to waive sovereign immunity

for federal takings suits, the Act still cannot chip away

at Article III. But the Act does just this by: (1) forcing

federal takings litigants to submit to Article I judges

wielding Article III power; and (2) withdrawing federal

takings suits from the original cognizance of Article III

judges.

These separation-of-powers problems may seem

surprising given that the Tucker Act has been on the

books since 1887. But these problems only came into

existence in 1982. Before then, property owners could

be heard by an Article III judge in all federal takings

cases. The Tucker Act channeled litigation of federal

takings over $10,000 into the U.S. Court of Claims—a

tribunal composed of life-tenured Article III judges.

The Act also allowed federal takings under $10,000 to

be litigated in federal district court—something that is

still true today. In 1982, however, Congress retired the

Court of Claims and created what is now the Court of

Federal Claims: a tribunal vested with all of the Court

of Claims’ Article III power and Tucker Act jurisdiction

but run by Article I judges.

That reality is incompatible with the separation of

powers. It also deprives Petitioner of Article III review

for no good reason. Petitioner would be able to obtain

Article III review if his federal takings claim was under $10,000, if the government had taken his property

through condemnation, or if the government had violated any of his other constitutional rights. Petitioner

is denied the benefit of Article III review here simply

because this federal takings claim exceeds $10,000.

That only serves to diminish the Takings Clause. But

there is “no reason why the Takings Clause . . . as

much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the

status of a poor relation.” Dolan v. City of Tigard, 512

U.S. 374, 392 (1994). The doctrine of sovereign immunity does not stretch so far.

------------------------------------------------------------------

ORDERS & OPINIONS BELOW

The Fifth Circuit’s June 19, 2017 opinion is reported at 860 F.3d 296. See App. 1–7. The Fifth Circuit’s August 30, 2017 denial of en banc rehearing is

reproduced at App. 30–31.

The March 9, 2017 order of the United States District Court for the Western District of Texas is reproduced at App. 8–11. The Magistrate Judge’s February

7, 2017 Report and Recommendation is reproduced at

App. 12–29.

------------------------------------------------------------------

JURISDICTION

This Court has jurisdiction over this case under 28

U.S.C. § 1254(1) given the Fifth Circuit’s entry of final

judgment on June 19, 2017, see App. 1, and its later

denial on August 30, 2017 of a timely petition for rehearing en banc. See App. 30–31.

------------------------------------------------------------------

CONSTITUTIONAL &

STATUTORY PROVISIONS INVOLVED

Article III, § 1 of the Constitution provides:

The 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. The judges, both

of the supreme and inferior courts, shall hold

their offices during good behaviour, and shall,

at stated times, receive for their services, a

compensation, which shall not be diminished

during their continuance in office.

Article III, § 2 of the Constitution provides in

relevant part:

The judicial power shall extend to all cases, in

law and equity, arising under this Constitution, the laws of the United States . . . . ; [and]

to controversies to which the United States

shall be a party . . . .

The Fifth Amendment to the Constitution

provides in relevant part:

[N]or shall private property be taken for public use, without just compensation.

The Tucker Act, 28 U.S.C. § 1491(a)(1), provides

in relevant part:

The United States Court of Federal Claims

shall have jurisdiction to render judgment

upon 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.

The Little Tucker Act, 28 U.S.C. § 1346(a)(2),

provides in relevant part:

(a) The district courts shall have original jurisdiction, concurrent with the United States

Court of Federal Claims, of:

(2) Any other civil action or claim

against the United States, not exceeding

$10,000 in amount, 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. § 171(a) provides in relevant part:

[T]he United States Court of Federal Claims

. . . . is declared to be a court established under [A]rticle I of the Constitution of the

United States.

28 U.S.C. § 172(b) provides:

Each judge of the United States Court of Federal Claims shall be appointed for a term of

fifteen years.

------------------------------------------------------------------

STATEMENT OF THE CASE

A brief history of the Takings Clause and

judicial review of federal takings.

The Takings Clause of the Fifth Amendment provides that “private property” shall not “be taken for

public use, without just compensation.” The Clause is

a fundamental limit on government power whose

origin can be traced back over 800 years to Magna

Carta (1215). Among its many revolutionary provisions, Magna Carta “forbade any ‘constable or other

bailiff ’ from taking ‘corn or other provisions from any

one without immediately tendering money therefor.’ ”

Horne v. U.S. Dep’t of Agric., 135 S. Ct. 2419, 2426

(2015) (quoting Magna Carta cl. 28).

The work of William Blackstone sheds further

light on the origin of the Takings Clause. See 1 WM.

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND

138–40 (1765). Blackstone observed that “[s]o great . . .

is the regard of the law for private property, that it will

not authorize the least violation of it; no, not even for

the general good of the whole community.” Id. at 139.

The quintessential example of this was a taking: “If a

new road, for instance, were to be made through the

grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no

man, or set of men, to do this without consent of the

owner of the land.” Id.

Blackstone then explained that to the extent “the

legislature . . . [can] compel the individual to acquiesce” to a government taking, this did not mean that

the legislature could “strip[ ] the subject of his property

in an arbitrary manner.” Id. The property owner still

had a right to “a full indemnification and equivalent

for the injury thereby sustained.” Id. This led Blackstone to conclude that in the context of a government

taking, “[t]he public is now considered as an individual, treating with an individual for an exchange. All

that the legislature does is to oblige the owner to alienate his possessions for a reasonable price.” Id.

Baron de Montesquieu seconded this analysis. See

2 BARON DE MONTESQUIEU, THE SPIRIT OF LAWS, bk.

XXVI, ch. 15, p. 210–11 (T. Nugent transl., 1752).

Montesquieu deemed it a “certain maxim” that “it is

not for the advantage of the public to deprive an individual of his property, or even to retrench the least part

of it by a law, or a political regulation.” Id. It was better

to follow “the rigor of the civil law, which is the palladium of property.” Id. This meant that, “[i]f the political

magistrate would erect a public edifice, or make a new

road, he must indemnify those who are injured by it;

the public is in this respect like an individual who

treats with an individual.” Id.

Magna Carta, Blackstone, and Montesquieu

shaped the Framers’ view of government takings. This

is especially true of James Madison, “the chief architect of the Takings Clause.”1 A “committed defender of

property rights,” Madison recognized “the significance

of national ratification of a compensation requirement,

and included it among the amendments [that] he proposed to Congress.”2 Indeed, for Madison, any government that “pride[d] itself in maintaining the

inviolability of property” was also a government which

provided that no private property “shall be taken . . .

for public use without indemnification to the owner.”3

Jeffrey Gaba, John Locke & the Meaning of the Takings

Clause, 72 MISSOURI L. REV. 525, 526–27 (2007).

William Treanor, The Origins & Original Significance of the

Just Compensation Clause of the Fifth Amendment, 94 YALE L.J.

694, 709 (1985).

James Madison, Property, NAT’L GAZETTE, Mar. 27, 1792, in

14 JAMES MADISON, THE PAPERS OF JAMES MADISON 266–67 (R.

Rutland & T. Mason eds. 1983), http://bit.ly/2zRd1pB.

Succeeding generations embraced and carried forward this original understanding of the Takings

Clause. Justice Story, in his famed legal treatise on the

Constitution, declared the Takings Clause to be “an affirmance of a great doctrine established by the common law for the protection of private property. It is

founded in natural equity, and is laid down by jurists

as a principle of universal law.” JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

547–48 (T. Cooley, ed. 1873); see Chicago, Burlington &

Quincy R.R. Co. v. Chicago, 166 U.S. 226, 236 (1897)

(quoting Justice Story on this point).

As for how the Takings Clause was meant to be

enforced, Madison viewed the Clause in line with the

rest of the Bill of Rights: as “a standard for judicial review.”4 In this vein, Madison expressly championed

ratification of the Bill of Rights on the grounds that

“independent tribunals of justice will consider themselves in a peculiar manner the guardians of [these]

rights.”5 Madison further emphasized that courts

would “be naturally led to resist every encroachment

upon rights expressly stipulated for in the [c]onstitution by the declaration of rights.”6

So it was. In Vanhorne’s Lessee v. Dorrance, 2 U.S.

304 (1795), Justice Paterson delivered the following

Treanor, supra note 2, at 710.

Speech Proposing the Bill of Rights (June 8, 1789), in 12

JAMES MADISON, THE PAPERS OF JAMES MADISON 197, 207 (C. Hobson & R. Rutland eds. 1979), http://bit.ly/2B3pzbb.

Id.

jury instructions in an early takings case. He

declared that property rights were “a right not ex

gratia from the legislature, but ex debito from the

[C]onstitution.” Id. at 311. The legislature therefore

could not take private property unless it also ordained

that the property owner “shall receive compensation.”

Id. at 312. And at this point, the legislature had to

“stop”; it could not proceed to “constitutionally determine . . . the amount of the compensation.” Id. Instead,

under the Constitution, compensation had to be decided either by consent, by “persons mutually elected

by the parties,” or by “the intervention of the Judiciary.” Id. at 314–15.

Justice Paterson thus affirmed the importance of

an independent judiciary in deciding compensation under the Takings Clause. And in the centuries that followed, his analysis endured. In 1893, this Court

affirmed that compensation for government takings “is

a judicial inquiry.” Monongahela Navigation Co. v.

United States, 148 U.S. 312, 327 (1893). And in 1936,

this Court held that “[a]gainst the objection of the

owner of private property taken for public use . . . Congress may not directly or through any legislative

agency finally determine the amount . . . safeguarded

to him” by the Takings Clause. Baltimore & Ohio R.R.

Co. v. United States, 298 U.S. 349, 368 (1936).

Besides deciding compensation, an independent

judiciary has also been important in deciding what entails a “taking” in the first place. This is true in two

respects. First, there is the long tradition of condemnation—an “action brought by . . . the Government in the

exercise of its power of eminent domain.” United States

v. Clarke, 445 U.S. 253, 255 (1980). Condemnation actions are “suit[s] at common law” because the “right of

eminent domain always was a right at common law.”

Kohl v. United States, 91 U.S. 367, 376 (1876). Article

III courts have thus traditionally been responsible for

administering these actions. See United States v. Dow,

357 U.S. 17, 22 (1958).

Next there is “inverse condemnation,” which is

what happens when the government takes private

property and then leaves it to the property owner to

recover just compensation. Clarke, 445 U.S. at 257–58.

In these cases, property owners are “entitled to bring

an action in inverse condemnation as a result of the

self-executing character” of the Takings Clause. First

English Evangelical Lutheran Church of Glendale v.

Cnty. of Los Angeles, Cal., 482 U.S. 304, 315 (1987)

(punctuation omitted).

The nature of an inverse condemnation suit is illuminated by decisions “contemporaneous with the

adoption of the Bill of Rights.” City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 715

(1999) (opinion of Kennedy, J., joined by Rehnquist,

C.J., and Stevens and Thomas, JJ.). These decisions

“suggest[ ] that when the government took property

but failed to provide a means for obtaining just compensation, an action to recover damages for the government’s actions would sound in tort.” Id.

In the end, inverse condemnation suits often come

down to one question: “Was there a taking?” United

States v. Lynah, 188 U.S. 445, 468 (1903). That constitutional question then further demonstrates why an

independent judiciary has been important in the administration of the Takings Clause. An example of this

is Pennsylvania Coal Co. v. Mahon, in which this Court

determined for the first time that regulations may

cause a taking. 260 U.S. 393, 415 (1922). As a result,

property owners may now seek compensation in court

for regulations that cause a “ ‘physical’ taking, a Lucastype ‘total regulatory taking,’ a Penn Central taking, or

a land-use exaction.” Lingle v. Chevron U.S.A., Inc., 544

U.S. 528, 548 (2005).

This leaves the matter of what kinds of judges

have historically adjudicated federal takings. For

“many years after the [C]onstitution was adopted,” the

federal government’s practice was to condemn property “in a state court and by authority of a state statute.” 1 PHILIP NICHOLS, THE LAW OF EMINENT DOMAIN

106–07 (1917). The federal government later opted “to

condemn directly, by authority of an act of Congress,”

enabling property owners to be heard by an Article III

judge during the condemnation suit. Id. at 107–08.

Finally, in 1855, Congress created the Court of

Claims—a court originally comprised of Article III

judges with jurisdiction over money claims against the

United States, including inverse condemnation suits.

II.

The evolution of the U.S. Court of Federal

Claims from its predecessor’s founding in

1855 to the 1887 Tucker Act to the 1982

Federal Courts Improvement Act.

In 1855, Congress created the Court of Claims to

handle money claims against the United States. The

Court of Claims’ enabling act provided that the court

would “consist of three judges, to be appointed by the

President, by and with the advice and consent of the

Senate.” Act of February 24, 1855, ch. 122, § 1, 10 Stat.

612, 612. These judges were to “hold their offices during good behaviour” and “receive a compensation of

four thousand dollars” per year. Id. This language echoes Article III of the Constitution, which provides that

federal judges must “hold their office[ ] during good behaviour” and “receive, for their services, a compensation, which shall not be diminished during their

continuance in office.”7

At the same time, Congress was not sure that it

wanted Court of Claims judges to render final, binding

judgments—i.e., exercise Article III power. See Glidden

Co. v. Zdanok, 370 U.S. 530, 552–53 (1962) (plurality

opinion). So Congress limited the court “to hear[ing]

claims and report[ing] its findings of fact and opinions

to Congress, together with drafts of bills designed to

carry [the court’s] recommendations into effect.” Id.

In 1863, Congress added two more judges to the Court of

Claims on the same terms. See Act of March 3, 1863, ch. 92, § 1,

12 Stat. 765, 765.

This compromise quickly proved to be unworkable.

See id.

Thus, in 1863, Congress gave the Court of Claims

the power to issue “final judgment[s]” that were appealable to the Supreme Court. Act of March 3, 1863,

ch. 92, § 5, 12 Stat. 765, 766. But there was a catch: no

Court of Claims judgment would be paid absent “an

appropriation . . . estimated for by the Secretary of the

Treasury.” Id. at 768 (§ 14). Recognizing that this proviso gave the Treasury “a revisory authority” over

Court of Claims’ judgments that could not be squared

with the “exercise of judicial power,” this Court refused

to review Court of Claims appeals. Glidden Co., 370

U.S. at 554 (citing Gordon v. United States, 69 U.S. 561

(1864)).

Congress promptly repealed the Treasury proviso.

See Act of March 17, 1866, ch. 19, § 1, 14 Stat. 9. This

Court then drove that repeal home by rejecting a

Treasury attempt to offset a Court of Claims judgment

against a debt that the judgment-holder owed to the

United States. See United States v. O’Grady, 89 U.S.

641 (1875). The Court emphasized that a “judgment of

the Court of Claims, from which no appeal is taken, is

just as conclusive under [the] existing law[ ] as [a]

judgment of the Supreme Court.” Id. at 648.

With the Court of Claims’ Article III power now

well-established, all that was left to be settled was the

court’s jurisdiction. When Congress created the Court

of Claims in 1855, it limited the court’s jurisdiction to

money claims against the United States that were

based on federal laws, executive regulations, and government contracts. See Act of February 24, 1855, ch.

122, § 1, 10 Stat. 612. Congress then expanded this jurisdiction in 1863 to encompass any set-offs, counterclaims, and damage claims that the United States

might have against Court of Claims litigants. See Act

of March 3, 1863, ch. 92, § 3, 12 Stat. 765.

Finally, in 1887, Congress passed the Tucker Act.

See Act of March 3, 1887, ch. 359, 24 Stat. 505 (codified

at 28 U.S.C. § 1491(a)(1)). The Tucker Act extended the

Court of Claims’ jurisdiction to reach “[a]ll claims

founded upon the Constitution,” id. (§ 1)—language

that echoes Article III, which provides that the “judicial power shall extend to all cases . . . arising under

this Constitution.” Congress also gave federal district

courts concurrent jurisdiction over matters within the

Court of Claims’ jurisdiction that did not exceed

$10,000—a portion of the Tucker Act that over time

came to be known as the Little Tucker Act. See Act of

March 3, 1887, ch. 359, § 2, 24 Stat. 505 (codified at 28

U.S.C. § 1346(a)(2)).

The Court of Claims now had Article III judges,

powers, and jurisdiction. Nevertheless, the Court of

Claims’ status as an Article III court remained a disputed question. At first, this Court recognized that the

Court of Claims was an Article III court. The Court described the Court of Claims’ jurisdiction as resting on

the “judicial power of the United States,” Minnesota v.

Hitchcock, 185 U.S. 373, 386 (1902), and found that

Court of Claims judges were “judge[s] of a court of the

United States” protected by Article III. Miles v. Graham, 268 U.S. 501, 509 (1925).

Then, in Ex parte Bakelite Corp., 279 U.S. 438

(1929) and Williams v. United States, 289 U.S. 553

(1933), this Court reversed course. The Court found

that the Court of Claims was in fact an Article I or “legislative court” given the singular focus of the court’s

work: the adjudication of federal debts. See Bakelite,

279 U.S. at 452. In the Court’s view, this work involved

“nothing which inherently or necessarily requires judicial determination.” Id. at 453.

It was not until 1962 that this Court finally put

the Court of Claims’ constitutional status to rest. By a

5-2 vote, the Court decided in Glidden Co. v. Zdanok,

370 U.S. 530, 584 (1962), that the Court of Claims was

an Article III court. Writing for a plurality of the Court,

Justice Harlan declared that “[t]he creation of the

Court of Claims can be viewed as a fulfillment of the

design of Article III.” Id. at 558. Justice Harlan based

this conclusion on the Court of Claims’ historical record—a record that established Congress’s intent to

confer upon the Court of Claims the power to render

final, binding judgments (i.e., Article III power) and to

hear cases “aris[ing] either immediately or potentially

under federal law within the meaning of Art. III, § 2.”8

Id. at 552–56.

The Glidden plurality also rejected various arguments

against recognizing the Court of Claims as an Article III court,

including the Court of Claims’ jurisdiction being limited to cases

Fast forward to 1981. The nation needed a new

federal appeals court to improve legal uniformity in areas like intellectual property law and government contracts. See H.R. REP. NO. 97-312 at 17 (1981). This

inspired Congress to devise the Federal Circuit, which

would be “a merger of the . . . Court of Claims and the

United States Court of Customs and Patent Appeals.”

Id. at 16–17. Congress also conceived of a “new Article

I trial forum known as the United States Claims

Court” that would “inherit[ ] the trial jurisdiction of the

Court of Claims.” Id.

The final result of Congress’s labor was the Federal Courts Improvement Act of 1982, Pub. L. No. 97164, 96 Stat. 25. The Act created the Federal Circuit by

staffing it with the Article III judges of the Court of

Claims and the Court of Customs and Patent Appeals.

See id. §§ 101, 165, 96 Stat. at 25, 50. The Act also formally abolished the Court of Customs and Patent Appeals. See id. § 122, 96 Stat. at 36.

But the Act did not abolish the Court of Claims.

The Act instead erected a “United States Claims

Court” with 16 judges each appointed to a 15-year

term. Id. § 105(a), 96 Stat. at 26–28. The Act then labeled this tribunal an Article I court while assigning to

it all the Article III powers and jurisdiction that belonged to the Court of Claims. Id. §§ 133, 139, 96 Stat.

at 39–44. Later, in 1992, Congress gave the tribunal its

against the United States and the ability of Congress to refer

cases to the Court of Claims. See 370 U.S. at 562–84.

present name: the U.S. Court of Federal Claims. See

Pub. L. No. 102–572, § 902, 106 Stat. 4506, 4516 (1992).

III. This litigation.

1. During the early 2000s, Michael Sammons, a

private investor, amassed $1 million in preferred stock

sold by Fannie Mae (the Federal National Mortgage

Association) and Freddie Mac (the Federal Home Loan

Mortgage Corporation). See App. 2.

2. In 2008, Fannie Mae and Freddie Mac went

into conservatorship. Id. The Treasury then bought “$1

billion of preferred stock in each entity.” Id.

3. In 2012, the Treasury negotiated a financial

amendment to its 2008 Fannie and Freddie stock purchase that let the Treasury claim “one hundred percent

of the current and future profits” of both Fannie and

Freddie. Id. This wiped out the dividend value of Sammons’ Fannie and Freddie stock. See id.

4. Sammons then sued the United States in

Texas federal district court. App. 12–13. Sammons alleged that the Treasury’s 2012 financial amendment

“expropriated his property interests in his preferred

[Fannie and Freddie] stock; destroyed his reasonable,

investment-backed expectations; and permanently deprived him of the economic value of his shares.” App.

13–14. Sammons sought an award of $900,000 in compensation under the Takings Clause. Id.

5. The government moved to dismiss Sammons’

takings suit for lack of subject-matter jurisdiction. See

App. 16. The government argued that Sammons’ takings suit belonged in the Court of Federal Claims

because the Tucker Act, 28 U.S.C. § 1491(a), vests exclusive jurisdiction of any claim against the United

States over $10,000 in that court. See id.

6. In response, Sammons sought “a declaratory

judgment that the Tucker Act [was] unconstitutional

as applied to his claim.” App. 3. Sammons argued that

“the Tucker Act violat[ed] Article III and the separation-of-powers doctrine by improperly granting exclusive jurisdiction over Fifth Amendment takings claims

to a non-Article III court.” App. 20.9

7. The magistrate judge recommended that Sammons’ declaratory-judgment motion be denied and that

the government’s motion-to-dismiss be granted. See

App. 28. This recommendation was based on a separation-of-powers analysis (see App. 18–28) that led the

judge to find that it was constitutional for the Court of

Federal Claims to exercise sole jurisdiction over federal takings claims over $10,000. App. 27.

To further protect his right to Article III review of his takings claim, Sammons asserted a jurisdictional challenge by way

of a motion to intervene in Fairholme Funds, Inc. v. United States,

681 F. App’x 945, 946–49 (Fed. Cir. 2017)—a takings class action

brought by other Fannie/Freddie investors in the Court of Federal

Claims. Sammons’ intervention motion was denied and, on appeal, the Federal Circuit affirmed, holding that Sammons “may

fully litigate, in [his] Texas case, his claim of entitlement to an

Article III forum for his takings claim.” Id. at 949.

8. Sammons timely objected to the magistrate

judge’s recommendation. See App. 8.

9. The district court accepted the magistrate

judge’s recommendation and entered a dismissal for

lack of subject-matter jurisdiction. See App. 11.

10. Sammons timely appealed the dismissal of

his case to the Fifth Circuit. See App. 3.

11. The Fifth Circuit affirmed. See App. 1. The

panel held that Sammons’ jurisdictional argument was

“foreclosed” by Ware v. United States, 626 F.2d 1278

(5th Cir. 1980), which established that “Congress can

constitutionally require [takings] cases to be heard in

an Article I court.” App. 5, 7.

12. Sammons timely petitioned for rehearing en

banc. Sammons argued en banc review was merited to

overrule Ware given this Court’s later rulings in First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, Cal., 482 U.S. 304 (1987) and

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

13. The Fifth Circuit denied rehearing. App. 30.

14.

This certiorari petition follows.

------------------------------------------------------------------

See Sammons’ Pet. for Reh’g En Banc at 10–11, Sammons

v. United States, No. 17-50201 (5th Cir. Oct. 3, 2017).

REASONS TO GRANT THE PETITION

The circuits are split on whether this

Court’s decision in First English means

that the Takings Clause is a self-executing

waiver of sovereign immunity.

Petitioner wants to litigate his $900,000 federal

takings suit before a judge whose “independence of action and judgment” is assured by life tenure—i.e., an

Article III judge. Evans v. Gore, 253 U.S. 245, 253

(1920). Petitioner is entitled to such Article III review

because federal takings suits do not require a statutory waiver of sovereign immunity. Rather, as this

Court made clear over 30 years ago in First English

Evangelical Lutheran Church of Glendale v. County of

Los Angeles, Cal., it is the Constitution itself—not Congress—that enables property owners to “bring an action in inverse condemnation as a result of the selfexecuting character” of the Takings Clause. 482 U.S.

304, 315 (1987) (punctuation omitted).

The Fifth Circuit refused to follow First English.

See App. 5 & n.8. The panel held that “whatever the

merits” of Petitioner’s First English argument might

be, “the issue [was] foreclosed” by Ware v. United

States, 626 F.2d 1278 (5th Cir. 1980)—a case that the

Fifth Circuit decided seven years before First English.

See App. 5–6. The panel reasoned that because of Ware,

it was settled circuit law that “the Fifth Amendment

does not automatically waive sovereign immunity.” Id.

The panel also emphasized that “one panel of this

Court may not overrule another.” Id.

Petitioner then asked for rehearing en banc to

enable the Fifth Circuit to overrule Ware. In First

English, after all, this Court expressly rejected the government’s argument that the Takings Clause was “not

a remedial provision” because of “principles of sovereign immunity.” 482 U.S. at 316 n.9. The Fifth Circuit

denied rehearing. App. 30–31. The Fifth Circuit has

thus staked out the unyielding position that the Takings Clause is not a self-executing waiver of sovereign

immunity. This places the Fifth Circuit on one side of

a deep and growing circuit split over the meaning of

First English and whether the Takings Clause actually

is a self-executing waiver of sovereign immunity.

A. The Fourth and Federal Circuits see

the Takings Clause as a waiver.

The Fourth and Federal Circuits stand against the

Fifth Circuit here. These circuits have followed First

English and found that the Takings Clause is a selfexecuting waiver of sovereign immunity.

Fourth Circuit: In Mann v. Haigh, 120 F.3d 34

(4th Cir. 1997), the Fourth Circuit expressly noted that

the Takings Clause is a “situation in which the Constitution itself authorizes suit against the federal government.” Id. at 37 (citing First English). Three years

later, in Lawyer v. Hilton Head Public Service District

No. 1, 220 F.3d 298 (4th Cir. 2000), the Fourth Circuit

cited Mann as a basis for “assum[ing] . . . that plaintiffs can bring direct claims under the Takings Clause.”

Id. at 302 n.4. The Fourth Circuit also observed that

“[o]ther courts . . . have held, in apparent conflict with

First English, that a violation of the Takings Clause

can only be redressed” through federal statutory

claims. Id. (collecting cases).

Federal Circuit: In Hendler v. United States, 952

F.2d 1364 (Fed. Cir. 1991), the Federal Circuit expressly found that federal takings suits “escape[ ] the

problems of sovereign immunity” because these suits

rest on the Takings Clause and this “provision [is] considered to be self-executing with respect to compensation.” Id. at 1371; see id. at 1373 (citing First English).

The Federal Circuit later reaffirmed this view in Hair

v. United States, 350 F.3d 1253 (Fed. Cir. 2003): “It is

true that sovereign immunity does not protect the government from a Fifth Amendment [t]akings claim because the constitutional mandate is ‘self-executing.’ ”

Id. at 1258.

B. The Fifth, Sixth, Ninth, and Eleventh

Circuits see no waiver.

The Sixth, Ninth, and Eleventh Circuits align with

the Fifth Circuit here in terms of finding that the Takings Clause is not a self-executing waiver of sovereign

immunity for federal takings suits.

Sixth Circuit: In Brott v. United States, 858 F.3d

425 (6th Cir. 2017), the Sixth Circuit held 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 may be enforced by [a] suit for money damages.”

Id. at 432. In reaching this conclusion, the Sixth Circuit dismissed the fact that this Court in First English

“referred to the Fifth Amendment right to just compensation as ‘self-executing.’ ” Id.

Ninth Circuit: In Azul Pacifico, Inc. v. City of Los

Angeles (Azul II), 973 F.2d 704 (9th Cir. 1992), the

Ninth Circuit held that “no cause of action” exists “directly” under the Takings Clause. Id. at 705. This was

the panel’s second decision. The panel’s first decision—

which the panel later withdrew—held that the Takings

Clause was a self-executing waiver of sovereign immunity. See Azul Pacifico, Inc. v. City of Los Angeles

(Azul I), 948 F.2d 575, 586 (9th Cir. 1991). The panel

explained that when the government fails to pay for a

taking, “the property owner may bring suit under the

[T]akings [C]lause to compel payment.” Id. at 586. The

panel further noted that “[i]f there was any doubt on

this score it was removed by . . . First English.” Id. The

panel’s second decision, by contrast, did not discuss

First English. See Azul II, 973 F.2d at 705.

Eleventh Circuit: In Cable Holdings of Georgia,

Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600

(11th Cir. 1992), the Eleventh Circuit implicitly rejected the Takings Clause as a self-executing waiver of

sovereign immunity. At issue was a federal law that

seemed to authorize a taking but did “not contain a just

compensation provision.” Id. at 604 & n.2. The panel

concluded this meant the law had to be read in a way

to avoid a taking. See id. at 610. A petition for rehearing en banc was then filed and denied. Judge Tjoflat

dissented.11 See Cable Holdings of Georgia, Inc. v.

McNeil Real Estate Fund VI, Ltd., 988 F.2d 1071,

1071–72 (11th Cir. 1993) (Tjoflat, J., dissental). Judge

Tjoflat explained that because the Takings Clause “is

self-executing,” a law “need not explicitly provide for

just compensation in order to be constitutional.” Id. By

failing to recognize this, the panel had “abrogate[d] . . .

Supreme Court precedent holding that the [Takings]

Clause is self-executing.” Id.

“Courts have struggled with the issue of whether

plaintiffs can bring direct claims under the Takings

Clause.” Lawyer, 220 F.3d at 302 n.4. As a result, a

deep and growing circuit split now exists as to whether

this Court meant what it said in First English when it

described the Takings Clause as a self-executing

waiver of sovereign immunity. This circuit split now

controls whether claimants with federal takings suits

like Petitioner are entitled to Article III review. The

Court should grant review to end this split.

II.

Stern establishes the existence of a major

separation-of-powers problem with federal takings claimants being forced to litigate in the U.S. Court of Federal Claims.

In Stern v. Marshall, 564 U.S. 462 (2011), this

Court held that it violated the separation of powers for

a federal bankruptcy court—i.e., a non-Article III

Judges Hatchett, Anderson, and Kravitch also dissented.

tribunal—to decide a state-law counterclaim. This was

because the bankruptcy court, in deciding the counterclaim, was “exercis[ing] the essential attributes of judicial power [that] are reserved to Article III courts.”

Id. at 501. The Court later decided that this kind of

separation-of-powers problem is excusable only “when

the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge.” Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1939 (2015).

Based on this standard, a major separation-ofpowers problem is posed by the Tucker Act forcing Petitioner and others to litigate federal takings suits over

$10,000 in the Court of Federal Claims—i.e., an Article

I tribunal. See 28 U.S.C. §§ 171–172. In particular, adjudication of a federal takings suit by the Court of Federal Claims involves a “prototypical exercise of judicial

power”: “a final, binding judgment by a court with

broad substantive jurisdiction, on a common law cause

of action, when the action neither derives from nor depends upon any [government] agency regulatory regime.” Stern, 564 U.S. at 465–66.

•

Final, binding judgment. Under 28

U.S.C. §§ 2517(a) and 2519, the Court of

Federal Claims is able to render final,

binding judgments against the United

States and against private claimants.

•

Broad substantive jurisdiction. Under the Tucker Act, 28 U.S.C. § 1491(a),

the Court of Federal Claims has jurisdiction over “any claim against the United

States” based on the Constitution, federal

law, executive regulations, federal contracts, or non-tort injuries. The court also

has jurisdiction over federal setoffs and

counterclaims against private litigants.

See 28 U.S.C. § 1503. All these cases

“arise either immediately or potentially

under federal law within the meaning of

[Article] III, § 2.” Glidden Co., 370 U.S. at

556 (plurality op.).

•

Common law cause of action. A takings claim is “an affirmation of a great

doctrine established by the common law

for the protection of private property.”

Chicago, Burlington & Quincy R.R. Co. v.

Chicago, 166 U.S. 226, 236 (1897). Moreover, “as a matter of historical practice . . .

suits to recover just compensation have

been framed as common-law tort actions.”

City of Monterey, 526 U.S. at 715–16

(opinion of Kennedy, J., joined by

Rehnquist, C.J., and Stevens and

Thomas, JJ.).

•

Action does not derive from or depend on a regulatory regime. “[S]uits

. . . to recover just compensation for property taken by the United States . . . . [are]

guaranteed by the Constitution.” Jacobs

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

“Statutory recognition [is] not necessary.

A promise to pay [is] not necessary.” Id.;

see also First English, 482 U.S. at 315–16.

Given the preceding analysis, this case merits the

Court’s review because the Constitution’s separation

of powers is threatened any time that Congress “confer[s] the judicial power outside Article III”—be it “over

certain [state law] counterclaims” or over federal takings claims. Stern, 564 U.S. at 502. Such a threat exists

here by virtue of Congress’s decision to replace an Article III tribunal (the Court of Claims) with an Article

I tribunal (the Court of Federal Claims) as the only

court where federal takings suits over $10,000 may be

heard. And now, under the decision below, this separation-of-powers threat is no longer open to challenge in

the Fifth Circuit, turning Article III from “a guardian

of individual liberty and separation of powers . . . into

mere wishful thinking.” Stern, 564 U.S. at 466.

II.

The courts below erred in their resolution

of the questions presented.

A. The Takings Clause is a self-executing

waiver of sovereign immunity that in

turn vests review of federal takings

suits in Article III courts.

This Court’s holding in First English is clear:

when the government takes private property, the

owner is “entitled to bring an action . . . as a result of

the self-executing character of ” the Takings Clause;

“[s]tatutory recognition [is] not necessary.” 482 U.S. at

315 (punctuation omitted). The Court also found in

First English that its earlier takings cases had “frequently repeated th[is] view” and that these cases “refute[d] the argument . . . that ‘the Constitution does

not, of its own force, furnish a basis for a court to award

money damages against the government.’ ” Id. at 315

& n.9.

The Fifth Circuit thus erred here in holding that

the Takings Clause “does not provide a self-executing

waiver of sovereign immunity.” App. 7. And since the

Takings Clause is a sovereign-immunity waiver, then

federal takings litigants are entitled to obtain Article

III review if this is what they want. “While the United

States as a government may not be sued without its

consent, yet with its consent it may be sued, and the

judicial power of the United States extends to such a

controversy.” Minnesota v. Hitchcock, 185 U.S. 373, 386

(1902).

This point comes into sharp relief when one recognizes that the Tucker Act “is displaced . . . when a law

assertedly imposing monetary liability on the United

States contains its own judicial remedies.” United

States v. Bormes, 568 U.S. 6, 12 (2012). The Constitution is a “superior paramount law” that guarantees

just compensation for takings. Marbury v. Madison, 5

U.S. 137, 176 (1803). “No just compensation can be

made except in money.” Vanhorne’s Lessee, 2 U.S. at

315. The Constitution also contains its own judicial

remedies insofar as “the judiciary is clearly discernible

as the primary means through which [the Bill of

Rights] . . . may be enforced.” Davis v. Passman, 442

U.S. 228, 241 (1979). Federal takings litigants like Petitioner are therefore entitled to an Article III judge in

the first instance.

This analysis comports with history. While the

Takings Clause operates as a self-executing waiver of

sovereign immunity, it does not require Congress to

identify an Article III court where federal takings suits

can be filed. “[C]ongress may constitutionally omit to

vest the judicial power”—and that is just what Congress did for much of this nation’s early history. Martin

v. Hunter’s Lessee, 14 U.S. 304, 337 (1816). Congress

relied on state courts, condemnation proceedings, and

private bills to compensate federal takings.

But when Congress finally created the Court of

Claims in 1855—a court with jurisdiction over federal

takings suits—Congress put Article III judges in

charge (i.e., life-tenured judges with fixed salaries). See

Act of February 24, 1855, ch. 122, § 1, 10 Stat. 612. Congress subsequently gave these judges full Article III

power and broadened their jurisdiction through the

Tucker Act to include constitutional claims. See Act of

March 3, 1887, ch. 359, § 1, 24 Stat. 505. “The creation

of the Court of Claims can [thus] be viewed as a fulfillment of the design of Article III.” Glidden Co., 370 U.S.

at 584. And that explains why the Tucker Act has

never raised separation-of-powers problems until now.

While the Act required federal takings litigants with

claims over $10,000 to file suit in the Court of Claims,

these litigants still received the benefit of Article III

review in that court.

All this changed in 1982 when Congress decided

to replace the Article III Court of Claims with the Article I Court of Federal Claims. Congress may, of

course, decide to “make available . . . quasi-judicial

mechanism[s] through which willing parties may, at

their option, elect to resolve their differences.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,

855 (1986). But Congress cannot take litigants “entitled to an Article III court” in the first instance and

send them “to an Article I forum for final decision without their consent.” Loveridge v. Hall, 792 F.3d 1274,

1279 (10th Cir. 2015) (Gorsuch, J.). That includes federal takings litigants like Petitioner.

B. Congress cannot force federal takings

claimants to litigate their suits before

the Article I judges of the U.S. Court of

Federal Claims.

Even if one assumes that the Takings Clause does

not waive sovereign immunity, the Fifth Circuit still

erred in holding that this means Congress may “require [federal takings] cases to be heard in an Article I

court.” App. 7. “[A] constitutional power cannot be used

by way of condition to attain an unconstitutional result.” W. Union Tel. Co. v. Foster, 247 U.S. 105, 114

(1918). Statutory waivers of sovereign immunity are

no exception.

Consider United States v. Klein, 80 U.S. 128 (1872).

Congress passed a law “direct[ing] the Court of Claims

and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon.” Bank Markazi v. Peterson, 136 S. Ct. 1310, 1324 (2016) (summarizing

Klein). This Court held that “Congress had no authority to impair the effect of a pardon, for the Constitution

entrusted the pardon power to the executive alone.” Id.

(alterations omitted). This Court also refused to accept

the argument that the jurisdictional bar was valid because “the right to sue the government in the Court of

Claims [was] a matter of favor.” Klein, 80 U.S. at 144.

Applied here, the unconstitutional-conditions doctrine means that even if the Tucker Act waives sovereign immunity for federal takings suits, Congress still

cannot use this waiver to chip away at Article III. See

Stern, 564 U.S. at 502–03. But that is what Congress

has done through the Federal Courts Improvements

Act of 1982, which now: (1) forces federal takings

claimants to submit to Article I judges wielding Article

III power; and (2) withdraws federal takings claims

from the original cognizance of Article III judges.

1. The power-mismatch problem.

When Congress created what is now the Court of

Federal Claims, it may well have intended for this

tribunal to be a brand new Article I court. But what

Congress actually did under the Federal Courts Improvement Act of 1982 is replace the Court of Claims’

Article III judges with Article I judges while leaving

the Court of Claims’ Article III power and jurisdiction

intact. See Pub. L. No. 97-164, §§ 133, 139, 96 Stat. at

39–44; Glidden Co., 370 U.S. at 552–56 (plurality op.)

(holding the Court of Claims to be an Article III court

based on its powers and jurisdiction).

This makes the Court of Federal Claims an Article

I court with Article III power.12 Compare 28 U.S.C.

§ 172(a), with, id. §§ 2501–2522. This violates Article

III—at least with respect to the adjudication of federal

takings suits. If Congress “can shift the judicial power

to judges without [life tenure],” the “Judicial Branch is

weaker and less independent than it is supposed to be.”

Waldman v. Stone, 698 F.3d 910, 918 (6th Cir. 2012).

And that is no less true when judicial power is shifted

through a statutory waiver of sovereign immunity

than through any other kind of law.

2. The judicial-cognizance problem.

“Congress cannot withdraw from judicial cognizance any matter which, from its nature, is the subject

of a suit at the common law . . . . ” Stern, 564 U.S. at

484. Federal takings suits are such “action[s] at law”

because “[t]he compensation which [one] may obtain in

such a proceeding will be the same as that which [one]

might have been awarded had the [government] instituted . . . condemnation proceedings.” Hurley v. Kincaid, 285 U.S. 95, 104 (1932). Congress then cannot

withdraw federal takings suits from Article III judges

or justify such withdrawal on the ground that the

In Morrison v. Olson, Justice Scalia foresaw this possibility: “[C]onsider a statute giving to non-Article III judges just a

tiny bit of purely judicial power in a relatively insignificant field

. . . . Is there any doubt that [the Court] . . . would say that our

‘constitutionally assigned duties’ include complete control over all

exercises of the judicial power.” 487 U.S. 654, 709–10 (1991)

(Scalia, J., dissenting) (emphasis in original).

Federal Circuit provides appellate review. See Stern,

564 U.S. at 500–01.

Congress also cannot withdraw from Article III

courts matters “of private right”—i.e., “the liability of

one individual to another under the law as defined.” Id.

at 465. On this score, while federal takings suits may

be against the government, these suits are still private-rights disputes because when it comes to the determination of just compensation for government

takings, “[t]he public is now considered as an individual treating with an individual.” 1 BLACKSTONE, COMMENTARIES at 139; see also 2 MONTESQUIEU, SPIRIT at bk.

XXVI, ch. 15, p. 211 (“[T]he public is in this respect like

an individual who treats with an individual.”).

Modern practice concurs. “Every sovereign State

is of necessity . . . [an] artificial person . . . capable of

making contracts and holding property.” Cotton v.

United States, 52 U.S. 229, 231 (1851). From this perspective, “[p]roperty is taken in the constitutional

sense when inroads are made upon an owner’s use of

it to an extent that as between private parties, a servitude has been acquired.” United States v. Dickinson,

331 U.S. 745, 748 (1947). It then follows that when “the

public [takes] property . . . it [takes] it as an individual

buying property from another.” Kelo v. City of New London, 545 U.S. 469, 510 (2005) (O’Connor, J., dissenting).

Takings suits are thus private-rights disputes that

cannot be withdrawn from Article III courts.

Finally, even if one assumes that federal takings

suits are not private-rights disputes, this does not

mean they fall into the public-rights exception to Article III review that this Court first identified in Murray’s Lessee v. Hoboken Land & Improvement Co., 59

U.S. 272 (1856). Federal takings suits fall outside the

public-rights exception because they are not matters

“that can be pursued only by [the] grace” of the political

branches. Stern, 564 U.S. at 493. These suits are instead “grounded in the Constitution itself ”—“[s]tatutory recognition [is] not necessary. A promise to pay [is]

not necessary.” First English, 482 U.S. at 315.

Federal takings suits also are not matters that

history shows could have been “determined exclusively” by the political branches. Stern, 564 U.S. at 493.

First, these suits require a “determination [of ]

whether a taking has occurred”—i.e., whether a right

to just compensation has vested. Arkansas Game &

Fish Comm’n v. United States, 568 U.S. 23, 38 (2012).

“The question whether a right has vested or not, is, in

its nature, judicial, and must be tried by the judicial

authority.” Marbury, 5 U.S. at 165. Second, since the

nation’s founding, members of this Court have repeatedly declared that “[t]he ascertainment of [just] compensation” for a government taking “is a judicial

function.” United States v. New River Collieries, Co.,

262 U.S. 341, 343–44 (1923); see also Monongahela, 148

U.S. at 327; Vanhorne’s Lessee, 2 U.S. at 314–15.

IV. The Court should evaluate certiorari here

in tandem with Oil States and Brott.

There are two cases currently pending before the

Court that raise issues that are similar to the ones presented in this petition. First, in Oil States v. Energy

Services LLC v. Greene’s Energy Group, LLC, No. 16712, this Court has agreed to review whether private

property rights (in the form of patents) may be extinguished through a non-Article III forum. Second, in

Brott v. United States, No. 17-712, the Court has before

it a certiorari petition that asks the Court to review

whether the federal government can take private property and then deny the owner the ability to litigate this

taking in an Article III court.

The present case merits certiorari on its own

terms to resolve the first question presented—a clear

circuit split on whether the Takings Clause is a selfexecuting waiver of sovereign immunity. At the same

time, Oil States and Brott do raise a number of legal

issues that overlap with the second question raised

here—whether Congress can relegate federal takings

claimants to the Article I Court of Federal Claims. To

this end, the Court should treat Oil States and Brott as

further reasons to grant review here to the extent that:

(1) the Court’s ultimate decision in Oil States addresses the arguments raised here about the scope of

the public-rights exception to Article III review; or (2)

the Court grants certiorari in Brott.

------------------------------------------------------------------

CONCLUSION

“Individual freedom finds tangible expression in

property rights.” United States v. James Daniel Good

Real Prop., 510 U.S. 43, 61 (1993). Accordingly, when

property rights are destroyed by a federal taking, the

property owner is entitled to defend his freedom by

seeking justice from the only kind of judge entrusted

by the Constitution to decide “all cases, in law and equity, arising under this Constitution”: a judge who

holds office for life under Article III. For this reason,

the petition for certiorari should be granted.

Respectfully submitted,

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

Dated: November 28, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.