Opposition Brief — Michael Sammons, Petitioner v. United States

No. 17-795

In the Supreme Court of the United States

MICHAEL SAMMONS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

CHAD A. READLER

Acting Assistant Attorney

General

MARK B. STERN

ABBY C. WRIGHT

Attorneys

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), violates Article III of the Constitution 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....................................................................................... 5

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Azul-Pacifico, Inc. v. City of Los Angeles,

973 F.2d 704 (9th Cir. 1992), cert. denied,

506 U.S. 1081 (1993)............................................................ 19

Bakelite Corp., Ex parte, 279 U.S. 438 (1929) ...... 7, 9, 10, 13

Block v. North Dakota, 461 U.S. 273 (1983) ....................... 14

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

petition for cert. pending, No. 17-712

(filed Nov. 6, 2017) .................................................. 16, 18, 20

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) .................... 15

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

(2012) .................................................................................... 18

Fairholme Funds, Inc. v. United States, 118 Fed. Cl.

795 (2014) ............................................................................... 3

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

Appx. 945 (Fed. Cir. 2017) ............................................... 4, 5

First English Evangelical Lutheran Church of

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

(1987) ........................................................................ 15, 16, 17

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ................. 10, 13

Hair v. United States, 350 F.3d 1253 (Fed. Cir. 2003) ...... 20

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

1991) ..................................................................................... 20

Horne v. Department of Agric., 569 U.S. 513 (2013) ......... 15

(III)

IV

Cases—Continued:

Page

Langford v. United States, 101 U.S. 341 (1880) ................... 9

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949).............................................................. 14

Lawyer v. Hilton Head Pub. Sch. Dist. No. 1,

220 F.3d 298 (2000) ............................................................. 19

Library of Congress v. Shaw, 478 U.S. 310 (1986) ............... 8

Lynch v. United States, 292 U.S. 571 (1934) ...................... 14

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ....................... 20

Marks v. United States, 430 U.S. 188 (1977) ...................... 13

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1856) .................................. 7, 12

Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982) ....................................... 6, 7, 12

OPM v. Richmond, 496 U.S. 414 (1990) .............................. 14

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

1315 (Fed. Cir. 2015) .......................................................... 18

Perry Capital LLC v. Mnuchin, 864 F.3d 591

(D.C. Cir. 2017), cert. denied, No. 17-578

(Feb. 20, 2018) ................................................................... 2, 3

Preseault v. ICC, 494 U.S. 1 (1990) ...................... 4, 15, 17, 18

Reeside v. Walker, 52 U.S. (11 How.) 272 (1851) ................ 14

Regional Rail Reorganization Act Cases, 419 U.S.

102 (1974) ............................................................................. 15

Robinson v. FHFA, 876 F.3d 220 (6th Cir. 2017) ................ 3

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 15

Schillinger v. United States, 155 U.S. 163 (1894) ........ 14, 17

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

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ..... 18

United States v. Bormes, 568 U.S. 6 (2012) ........................ 10

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

United States v. Lee, 106 U.S. 196 (1882) ............................. 9

United States v. Mitchell, 463 U.S. 206 (1983) ..... 8, 9, 14, 16

V

Cases—Continued:

Page

United States v. Sherwood, 312 U.S. 584 (1941) ........... 13, 14

United States v. White Mountain Apache Tribe,

537 U.S. 465 (2003).............................................................. 14

Ware v. United States, 626 F.2d 1278 (5th Cir. 1980) .......... 5

Webster v. Doe, 486 U.S. 592 (1988) ..................................... 17

Williams v. United States, 289 U.S. 553

(1933) .................................................................... 9, 10, 12, 13

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

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

(1985) .............................................................................. 17, 18

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

95 F.3d 1359 (7th Cir. 1996) ............................................... 18

Constitution, statutes, and rule:

U.S. Const.:

Art. I ....................................................................... 6, 11, 13

§ 9, Cl. 7 (Appropriations Clause) ............................ 14

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

§ 1 ................................................................................. 6

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

Just Compensation Clause ................................. 13, 21

Amend. VII ...................................................................... 21

Act of Mar. 3, 1887, ch. 359, 24 Stat. 505 ......................... 9, 11

Act of July 28, 1953, ch. 253, § 1, 67 Stat. 226 ..................... 10

Federal Courts Improvement Act of 1982, Pub. L.

No. 97-164, Tit. I, § 105, 96 Stat. 26-28 ............................. 10

Housing and Economic Recovery Act of 2008,

Pub. L. 110-289, 122 Stat. 2654............................................ 2

Little Tucker Act, 28 U.S.C. 1346(a)(2) ........................... 4, 11

Tucker Act, 28 U.S.C. 1491(a)(1)...................................... 3, 10

28 U.S.C. 1491 .................................................................. 16

VI

Statutes and rule—Continued:

Page

12 U.S.C. 1455(l)(1)(A) ........................................................ 2

12 U.S.C. 1716(4) ..................................................................... 2

12 U.S.C. 1719(g)(1)(A) ....................................................... 2

12 U.S.C. 4511 .......................................................................... 2

12 U.S.C. 4617(a) ..................................................................... 2

28 U.S.C. 171(a) ..................................................................... 10

28 U.S.C. 1295 ........................................................................ 11

Ct. Cl. R. 147(b) (1976) (28 U.S.C. App. at 635 (1976)) ...... 10

Miscellaneous:

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

Claims: A History (1978) .......................................... 8, 9, 10

In the Supreme Court of the United States

No. 17-795

MICHAEL SAMMONS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is

reported at 860 F.3d 296. The order of the district court

(Pet. App. 8-11) and the report and recommendation of

the magistrate judge (Pet. App. 12-29) are not published

in the Federal Supplement but are available at 2017 WL

3476775 and 2017 WL 3473224, respectively.

JURISDICTION

The judgment of the court of appeals was entered on

June 19, 2017. A petition for rehearing was denied on

August 30, 2017 (Pet. App. 30-31). The petition for a writ

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

STATEMENT

1. Congress created the Federal National Mortgage

Association (Fannie Mae) and the Federal Home Loan

(1)

2

Mortgage Corporation (Freddie Mac) to “promote access to mortgage credit throughout the Nation” by “increasing the liquidity of mortgage investments and improving the distribution of investment capital available

for residential mortgage financing.” 12 U.S.C. 1716(4).

Fannie Mae and Freddie Mac serve those objectives by

purchasing mortgage loans from banks and other lenders,

thereby providing the lenders with capital to make additional loans. Perry Capital LLC v. Mnuchin, 864 F.3d

591, 599 (D.C. Cir. 2017), cert. denied, No. 17-578 (Feb.

20, 2018).

In September 2008, Fannie Mae and Freddie Mac

were on the “brink of collapse” because of the “dramatic

decline in the housing market.” Perry Capital, 864 F.3d

at 598; see id. at 600. To avert the catastrophic impact

on the markets that would have resulted from a collapse, Congress enacted the Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat. 2654,

which created the Federal Housing Finance Agency

(FHFA) and empowered it to act as conservator or receiver of Fannie Mae and Freddie Mac. 12 U.S.C. 4511,

4617(a); see Pet. App. 2. Congress recognized that

avoiding a collapse would require substantial federal financial assistance, and it authorized the Department of

the Treasury (Treasury) to provide that assistance by

“purchas[ing] any obligations and other securities issued by” Fannie Mae and Freddie Mac. 12 U.S.C.

1455(l)(1)(A), 1719(g)(1)(A); see Perry Capital, 864 F.3d

at 599-600.

FHFA placed Fannie Mae and Freddie Mac into conservatorship, and Treasury immediately purchased preferred stock in each entity and committed to provide

them with billions of dollars in taxpayer funds. Pet.

App. 2. Under the original agreement, Treasury was

3

entitled to receive dividends equal to ten percent of the

amount Fannie Mae and Freddie Mac had drawn from

Treasury. Ibid.

Fannie Mae and Freddie Mac continued to experience financial difficulties in the years following 2008,

and FHFA and Treasury amended the preferred stock

purchase agreements several times. Perry Capital,

864 F.3d at 601-602. As relevant here, in 2012, Treasury

and FHFA replaced the fixed dividend obligation with

a variable dividend “(roughly) equal to [Fannie Mae and

Freddie Mac’s] quarterly net worth, however much or

little that may be.” Id. at 598; see Pet. App. 2.

2. A number of shareholders in Fannie Mae and

Freddie Mac filed suits challenging the 2012 amendments. Some sued the FHFA and Treasury in district

court, alleging that the amendments were arbitrary and

capricious or otherwise unlawful. See, e.g., Robinson v.

FHFA, 876 F.3d 220, 226-227 (6th Cir. 2017); Perry

Capital, 864 F.3d at 602-603. Others sought money

damages from the United States in the Court of Federal

Claims (CFC). See, e.g., Fairholme Funds, Inc. v.

United States, 118 Fed. Cl. 795, 796 (2014). Those

shareholders alleged that the 2012 amendments constituted a taking and that they were therefore entitled to

just compensation under the Fifth Amendment. Ibid.

The shareholders who brought takings claims in the

CFC proceeded under the Tucker Act, 28 U.S.C.

1491(a)(1), which waives sovereign immunity and 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 dam-

4

ages in cases not sounding in tort.” That grant of jurisdiction includes claims seeking just compensation for

asserted takings of private property. See, e.g., Preseault v. ICC, 494 U.S. 1, 11-12 (1990). The CFC’s

Tucker Act jurisdiction is generally exclusive, but the

Little Tucker Act, 28 U.S.C. 1346(a)(2), grants federal

district courts concurrent jurisdiction over claims seeking $10,000 or less.

3. Petitioner is a shareholder in Fannie Mae and

Freddie Mac. Like other shareholders, he alleges that

the 2012 amendments constituted a taking for which the

United States owes just compensation. Pet. App. 2, 9.

Unlike the other shareholders, however, he did not file

suit in the CFC. Instead, petitioner (who at the time

was acting pro se) filed this suit in the United States

District Court for the Western District of Texas. Id. at

8-11. His complaint sought $900,000 in compensation for

an alleged taking of the value of his shares. Id. at 2, 10.

Petitioner did not dispute that, under the Tucker

Act, the CFC has exclusive jurisdiction over claims

seeking more than $10,000 in just compensation for asserted takings by the United States. Pet. App. 20. But

he argued that “the Tucker Act is unconstitutional” as

applied to claims for just compensation under the Fifth

Amendment. Ibid. The district court, accepting a magistrate judge’s report and recommendation, rejected

that argument and dismissed petitioner’s suit for lack

of jurisdiction. Id. at 8-11; see id. at 12-29. 1

Before filing this suit, petitioner unsuccessfully sought to intervene in the lead CFC action to argue that the CFC lacked jurisdiction over the other shareholders’ claims because only an Article III

court may hear claims seeking just compensation for Fifth Amendment takings. See Fairholme Funds, Inc. v. United States, 681 Fed.

1

5

4. The court of appeals affirmed. Pet. App. 1-7. The

court explained that it is well-settled that Congress may

assign cases involving “public rights” to non-Article III

courts. Id. at 4 (citations omitted). The court noted that

public-rights cases include claims against the United

States, which cannot proceed without a waiver of sovereign immunity. Id. at 4-5. The court explained that, because such suits “could not otherwise proceed at all,”

Congress may “set the terms” on which they will be

litigated—including by assigning them to non-Article

III courts. Ibid. (quoting Stern v. Marshall, 564 U.S.

462, 489 (2011)). The court thus viewed the question in

this case as “whether the United States, in the absence

of the Tucker Act, has sovereign immunity over takings

claims.” Id. at 5. And the court held that binding circuit

precedent established that a Fifth Amendment justcompensation claim may proceed only if Congress has

waived sovereign immunity. Id. at 6-7 (citing Ware v.

United States, 626 F.2d 1278, 1279-1280 (5th Cir. 1980)).

5. The court of appeals denied rehearing en banc

with no judge requesting a vote. Pet. App. 30-31.

ARGUMENT

Petitioner renews his contention (Pet. 22-37) that

Congress violated Article III by granting the CFC exclusive jurisdiction over 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, petitioner does not cite any decision,

Appx. 945, 946 (Fed. Cir. 2017). The Federal Circuit affirmed the

CFC’s denial of intervention. Id. at 950.

6

by any court, endorsing his assertion that takings

claims must be heard 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. 2

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

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”

A related question is presented in the petition for a writ of certiorari in Brott v. United States, No. 17-712 (filed Nov. 6, 2017).

2

7

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,” including 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.

8

b. 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).

“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.

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

9

for takings of private property by the United States.

Langford v. United States, 101 U.S. 341, 343 (1880). 3

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.

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

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).

3

10

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

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

11

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. 4

2. Petitioner asserts (Pet. 30) that property owners

seeking compensation for asserted takings by the

United States are “entitled” to have their claims heard

by “an Article III judge in the first instance,” and that

Congress has acted unconstitutionally by failing to provide an Article III forum for claims seeking more than

$10,000. Petitioner offers no sound basis for such a radical departure from centuries of established practice.

a. Petitioner asserts (Pet. 31) that his argument

“comports with history,” suggesting that the purported

constitutional defect he identifies arose only when Congress created the CFC in 1982. But petitioner can

square his argument with history only by contradicting

both his own position and the historical record.

First, petitioner acknowledges (Pet. 31) that the

Fifth Amendment “does not require Congress to identify an Article III court where federal takings suits can

be filed.” He thus concedes (ibid.) that, for the first cen-

Since 1887, the Little Tucker Act has also allowed takings claimants seeking $10,000 or less to sue in Article III courts. Act of Mar.

3, 1887, ch. 359, 24 Stat. 505; see 28 U.S.C. 1346(a)(2).

4

12

tury of the Nation’s history, Congress permissibly reserved to itself the authority to provide compensation

for asserted takings through “private bills.” 5

That concession dooms petitioner’s contention. This

Court has repeatedly held that the paradigmatic example of a public-rights matter that Congress may assign

to a non-Article III tribunal is one “that historically

could have been determined exclusively” by Congress.

Stern, 564 U.S. at 485 (citation omitted); see, e.g., Northern Pipeline, 458 U.S. at 67-68 (plurality opinion); Williams, 289 U.S. at 579-580; Murray’s Lessee, 59 U.S.

(18 How.) at 282-284. If—as petitioner concedes (Pet.

31)—Congress acted permissibly during the century in

which it reserved the determination of just-compensation

claims for itself, then Congress also acted permissibly

when it adopted “the less drastic expedient of committing their determination to a legislative court.” Northern

Pipeline, 458 U.S. at 68 (plurality opinion). In contrast,

if—as petitioner elsewhere insists (e.g., Pet. 30)—the

Fifth Amendment means that federal takings claimants

are “entitled” to an Article III forum, then Congress

Petitioner notes (Pet. 13, 31) that before 1887, Congress also

provided compensation for takings through condemnation proceedings in state and federal courts. But as petitioner acknowledges

(Pet. 11-12), “a ‘condemnation’ proceeding is * * * an action

brought by a condemning authority such as the Government in the

exercise of its power of eminent domain.” United States v. Clarke,

445 U.S. 253, 255 (1980). This case, in contrast, involves a claim

against the United States by an owner who asserts that his property

was taken without formal condemnation proceedings (sometimes

termed an “inverse condemnation” suit, see id. at 257-258). Petitioner does not and could not suggest that property owners seeking

to assert such claims before 1887 could sue the United States in

state or federal court.

5

13

acted unconstitutionally by failing to provide such a

forum for most of the Nation’s history.

Second, petitioner’s historical account assumes (Pet.

16-17, 31) that the Court of Claims was an Article III

court between 1887 and 1953. In fact, this Court held

that it was an Article I legislative court that “receive[d]

no authority and its judges no rights from the judicial

article of the Constitution.” Williams, 289 U.S. at 581;

see Bakelite, 279 U.S. at 451-457; see also, e.g., United

States v. Sherwood, 312 U.S. 584, 587 (1941) (“The Court

of Claims is a legislative, not a constitutional court.”).

As petitioner observes (Pet. 17, 31), Justice Harlan’s

plurality opinion in Glidden would have held that the

Court of Claims was an Article III court even before

1953. 370 U.S. at 584. But Justice Clark and Chief Justice Warren specifically declined to overrule Williams

and Bakelite, instead concluding that the Court of

Claims became an Article III court only when Congress

declared it to be one in 1953. Id. at 585-587 (Clark, J.,

concurring in the result). Because their votes were necessary to the result, that narrower position reflects “the

holding of the Court.” Marks v. United States, 430 U.S.

188, 193 (1977) (citation omitted). Petitioner’s position

thus necessarily implies that Congress was acting

unconstitutionally not only for the first century of our

Nation’s history, but for much of the second as well.

b. Petitioner’s primary justification for rejecting

that historical understanding is his assertion (Pet. 2-4,

29-32) that the Fifth Amendment’s Just Compensation

Clause “is a ‘self-executing’ waiver of sovereign immunity” that entitles claimants to sue in an Article III court

even absent consent by Congress. Pet. 2 (citation omitted). That assertion contradicts a long line of this

Court’s decisions, is not supported by the decision on

14

which petitioner relies, and would not entitle petitioner

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,” Sherwood, 312 U.S. at 586. 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).

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 by which [a

property owner] could have obtained compensation for

[a] taking.” Larson v. Domestic & Foreign Commerce

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

15

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).

ii. Petitioner errs in asserting (Pet. 2, 29-30) that his

position is compelled by this Court’s decision in First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987) (First English). The question presented in that case 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 backward-looking 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

16

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.” Brott v. United States,

858 F.3d 425, 432 (6th Cir.) (quoting First English,

482 U.S. at 315 (citation omitted)), petition for cert.

pending, No. 17-712 (filed Nov. 6, 2017). 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). The Tucker Act waives sovereign

immunity, but does not create any substantive rights.

Ibid. 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 estab-

17

lishing 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 petitioner must, that First

English enshrined as law the proposition that Justice

Scalia—who joined the Court’s opinion—dismissed as so

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

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

prevail even if he 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)

18

(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” was indisputably available to petitioner. As petitioner does 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 petitioner were right that the Fifth Amendment is a

“self-executing” waiver of sovereign immunity that

would entitle him to sue in an Article III court if Congress had provided no other avenue for obtaining compensation, it would not follow that he should be permitted to bypass the compensation procedure that Congress has established. 6

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 Brott, 858 F.3d at

435-436 (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).

And deferential review of factual determinations was also a feature

of the Article III Court of Claims’ review of the court’s non-Article

6

19

c. Petitioner’s remaining arguments lack merit. He

asserts (Pet. 26-29) that claims seeking just compensation from the United States are akin to the claim held to

require Article III adjudication in Stern. But this

Court’s decision in Stern rested on the fact that the

claim at issue there did not “ ‘depend upon the will of

congress’ ” because it arose “under state common law

between two private parties.” 564 U.S. at 493 (brackets

and citation omitted). The Court reaffirmed that Congress may assign a claim to a non-Article III tribunal

where, as here, it is “a matter that can be pursued only

by grace of the other branches” or that “ ‘historically

could have been determined exclusively by’ those

branches.” Ibid. (citation omitted). Petitioner also contends (Pet. 32-36) that assigning just-compensation

claims to the CFC violates other separation-of-powers

principles and the unconstitutional conditions doctrine.

But his arguments rest on the erroneous premise that

such claims are not among the public-rights matters

that Congress may assign to non-Article III courts.

3. Petitioner asserts (Pet. 23-24) that the court of

appeals’ decision conflicts with decisions of the Fourth

and Federal Circuits. That is not correct. The Fourth

Circuit decision on which petitioner chiefly relies

addressed the question whether a property owner seeking compensation from a state defendant “must use

[42 U.S.C.] 1983 as the mechanism,” or whether such

plaintiffs “can bring direct claims under the Takings

Clause.” Lawyer v. Hilton Head Pub. Sch. Dist. No. 1,

220 F.3d 298, 302-303 n.4 (2000); see Azul-Pacifico, Inc.

v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992)

(cited at Pet. 25) (addressing the same question), cert.

III trial judges between 1953 and 1982, see p. 10, supra—a procedure that petitioner concedes was constitutional.

20

denied, 506 U.S. 1081 (1993). The other Fourth Circuit

decision on which petitioner relies (Pet. 23-24) discussed the sovereign immunity of the United States in

takings cases, but only in dicta. See Mann v. Haigh,

120 F.3d 34, 37 (1997). The same is true of the Federal

Circuit’s decisions in Hendler v. United States, 952 F.2d

1364, 1371 (1991), and Hair v. United States, 350 F.3d

1253, 1257 (2003).

Petitioner does not cite any decision allowing a justcompensation claim to proceed against the United

States without a waiver of sovereign immunity. He also

does not identify any decision suggesting—much less

holding—that the Tucker Act’s grant of exclusive jurisdiction to the CFC for claims in excess of $10,000 is invalid. Petitioner cites only one decision considering

such a claim: The Sixth Circuit’s decision in Brott,

which held, consistent with the decision below, that “the

Tucker Act and the Little Tucker Act are constitutional” because “Congress may * * * require that justcompensation claims for money damages in excess of

$10,000 against the United States be heard in the

[CFC].” 858 F.3d at 437. The Sixth Circuit also noted

the absence of any conflict on that question, emphasizing that the plaintiffs in Brott 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 432.

4. Finally, petitioner briefly suggests (Pet. 37) that

the petition for a writ of certiorari should be held pending this 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

21

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

Just Compensation Clause; this Court’s decision in

First English; or any of the other issues petitioner

raises. 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

CHAD A. READLER

Acting Assistant Attorney

General

MARK B. STERN

ABBY C. WRIGHT

Attorneys

FEBRUARY 2018