Reply 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,

Respondent.

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

to the United States Court of Appeals

for the Fifth Circuit

-----------------------------------------------------------------PETITIONER’S REPLY BRIEF

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

Counsel of Record

SUBBARAMAN PLLC

222 S. 9th St., Ste. 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

March 7, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

1

Argument .............................................................

2

I.

II.

Review is needed to resolve a circuit split

over whether this Court held in First

English that the Takings Clause is a “selfexecuting” immunity waiver ......................

2

A. The government fails to recognize the

difference between immunity waivers

and jurisdiction-creating laws .............

3

B. The government presents a reading of

First English that cannot be squared

with First English’s text or history ......

6

C. The government errs in dismissing the

existence of a circuit split ....................

8

Review is needed to protect the rights of

federal takings claimants like Sammons,

who are being forced to submit to Article I

judges exercising Article III power ........... 10

A. The government fails to address the

power-mismatch problem .................... 10

B. The government erroneously assumes

away the judicial-cognizance problem.... 11

III.

The questions presented should be decided

now, given the key property rights and

separation-of-powers issues at stake ......... 13

Conclusion............................................................ 13

ii

TABLE OF AUTHORITIES

Page

CASES

Ark. Game & Fish Comm’n v. United States, 568

U.S. 23 (2012) ..........................................................12

Barron v. Baltimore, 32 U.S. 243 (1833).......................9

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

2017) ................................................................ 2, 3, 10

Brott v. United States, No. 17-712 (U.S.) ....................13

Colman v. Utah State Land Bd., 795 P.2d 622

(Utah 1990) ...............................................................8

First English Evangelical Lutheran Church of

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

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

Fletcher v. Peck, 10 U.S. 87 (1810) ................................1

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

2003) ..........................................................................9

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

Cir. 1991) ...................................................................9

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) ..........................................8

Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220

F.3d 298 (4th Cir. 2000) ......................................... 3, 9

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ............. 3, 9

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

Merrell Dow Pharm., Inc. v. Thompson, 478 U.S.

804 (1986) ..................................................................5

Morrison v. Olson, 487 U.S. 654 (1991) ......................11

iii

TABLE OF AUTHORITIES—Continued

Page

Netsphere, Inc. v. Baron, 799 F.3d 327 (5th Cir.

2015) ..........................................................................9

Oil States Energy Services LLC v. Greene’s Energy Group, LLC, No. 16-712 (U.S.) ........................13

Patchak v. Zinke, No. 16-148 (U.S. Feb. 27,

2018) ..........................................................................5

Stern v. Marshall, 564 U.S. 462 (2011)................... 2, 13

W. Union Tel. Co. v. Foster, 247 U.S. 105 (1918) .........10

Zwickler v. Koota, 389 U.S. 241 (1967) .........................5

CONSTITUTIONAL PROVISIONS

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

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

STATUTES

28 U.S.C. § 1491 (Tucker Act) ......................... 4, 6, 7, 10

OTHER AUTHORITIES

Alexander Hamilton, The Examination Number

VI, N.Y. EVENING POST, Jan. 2, 1802, in 25

THE PAPERS OF ALEXANDER HAMILTON (Harold

Syrett, ed. 1977), http://bit.ly/2FrL9uS ..................12

Brief for the United States as Amicus Curiae,

First English, No. 85-1199, available at 1986

WL 727420 ................................................................7

1

INTRODUCTION

Over two centuries ago, Chief Justice Marshall

observed that: “To the legislature all legislative power

is granted; but the question, whether the act of transferring the property of an individual to the public, be

in the nature of the legislative power, is well worthy

of serious reflection.” Fletcher v. Peck, 10 U.S. 87, 135

(1810). So it is here. Petitioner Michael Sammons

seeks review of the following two questions about the

nature of Congress’s power to regulate the judicial determination of federal takings claims.

First, Sammons seeks review of whether Congress can withdraw federal takings claims from Article

III judges in the first instance when the Takings

Clause of the Fifth Amendment is a self-executing

waiver of sovereign immunity. See Pet. i. This question

has divided the circuits as a result of persisting doubts

about how to read this Court’s holding in First English

Evangelical Lutheran Church of Glendale v. Cnty. of

Los Angeles, Cal., 482 U.S. 304 (1987) that the Takings

Clause creates both a right and a remedy against the

United States.

Second, assuming the Takings Clause is not an

immunity waiver, Sammons seeks review of whether

Congress can use its immunity-waiver power to compel

federal takings claimants like him to litigate in the

first instance before the Article I judges of the U.S.

Court of Federal Claims. See Pet. i. This question merits review because the Court has made it clear that

Congress “may no more lawfully chip away at the

2

authority of the Judicial Branch than it may eliminate

it entirely.” Stern v. Marshall, 564 U.S. 462, 502–03

(2011).

In response, the government does not dispute that

Sammons’ case indeed presents the above two questions. Nor does the government dispute that Sammons’

certiorari petition affords the Court with an excellent

vehicle for deciding these questions. The government

instead asks the Court to deny review because the government agrees with the Sixth Circuit’s answers to

these questions in Brott v. United States, 858 F.3d 425

(6th Cir. 2017). But the government’s analysis turns on

a flawed view of the separation-of-powers principles

that govern federal takings claims, thereby underscoring why Sammons’ petition should be granted.

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

ARGUMENT

I.

Review is needed to resolve a circuit

split over whether this Court held in First

English that the Takings Clause is a “selfexecuting” immunity waiver.

In First English, this Court held that the Takings

Clause is “self-executing.” 482 U.S. at 315. By this, the

Court meant that when the government takes property

for public use, a property owner’s “claim[ ] for just compensation [is] grounded in the Constitution itself ” and

the owner is “entitled to bring an action in inverse condemnation.” Id. The Takings Clause, in other words,

furnishes both a right (just compensation for takings)

3

and a remedy (an action at law), and neither one is

conditioned by “principles of sovereign immunity.” Id.

n.9.

This makes the Takings Clause a self-executing

waiver of sovereign immunity. See Pet. 29–32. But

“[c]ourts have struggled” to accept this conclusion.

Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d

298, 302 n.4 (4th Cir. 2000). Some courts have taken

First English at its word: the Takings Clause “authorizes suit against the federal government.” Mann v.

Haigh, 120 F.3d 34, 37 (4th Cir. 1997). Others have not.

See, e.g., Brott, 858 F.3d at 432 (concluding First English “does not mean that the United States has waived

sovereign immunity”).

The government answers this split through a series of arguments, addressed below, that replicate the

Sixth Circuit’s analysis in Brott. Compare BIO 15–17,

with Brott, 858 F.3d at 431–36. But taking sides in a

circuit split does not make the split vanish. It also does

not overcome the flaws in the side that the government

has picked.

A. The government fails to recognize the

difference between immunity waivers

and jurisdiction-creating laws.

The government’s main argument for why the

Court need not review the above-identified First English split is that “[t]o recover money damages against

the United States, a plaintiff must identify both a

waiver of sovereign immunity and a substantive right

4

. . . for money damages.” BIO 16 (punctuation omitted). The government maintains that federal takings

claims fit this bill because the Tucker Act, 28 U.S.C.

§ 1491, affords the needed immunity waiver, while the

Takings Clause affords the “substantive right.” Id. The

government thus urges the Court to accept that federal

takings claims hinge on a Tucker Act immunity waiver,

which then enables Congress to attach any conditions

that it wants to this waiver, including final adjudication by Article I judges. See BIO 15–17.

But this analysis misses a key step—one that is

vital to understanding the proper interplay between

sovereign immunity, the Takings Clause, and Article

III. To raise a takings claim against the United States

in federal court, three things are required: (1) a substantive right, which the Takings Clause affords; (2) a

waiver of immunity, which the Takings Clause also affords; and (3) a creation of federal court jurisdiction, which, at present, the Tucker Act affords. By

overlooking this last step, the government fails to recognize that for federal takings claims, the Tucker Act

is merely a jurisdiction-creating statute—not a waiver

of immunity, which the Constitution already supplies.

This is a critical distinction. Generally speaking,

Congress has the final word on money-mandating

rights and waivers of sovereign immunity, while the

Constitution has the final word on the jurisdiction

of federal courts under Article III. The exception is

the Takings Clause, which functions as both a moneymandating right and an immunity waiver. For good

5

reason: the Framers wanted to protect federal takings

claims against the possibility of legislative repeal. See

First English, 482 U.S. at 315.

At the same time, the Framers gave Congress a

free hand to decide whether to create federal courts at

all. See Patchak v. Zinke, No. 16-148, slip op. at 7–8

(U.S. Feb. 27, 2018) (plurality op.). The Framers also

enabled Congress to decide, within Article III limits, the

subject-matter jurisdiction of any federal court that

Congress decided to create. See id. Unlike the Takings

Clause, the Article III power of federal courts to hear

cases arising under the Constitution is “not self-executing” and requires enabling legislation. Merrell Dow

Pharm., Inc. v. Thompson, 478 U.S. 804, 807–08 (1986).

To this end, as a historical matter, Congress did

not enable federal courts to hear claims against the

United States arising under the Constitution for “most

of the Nation’s first century.” Zwickler v. Koota, 389

U.S. 241, 245 (1967). Congress instead “relied on . . .

state courts to vindicate essential rights arising under

the Constitution.” Id. This explains the overall lack of

federal takings litigation in federal courts from 1791

forward: Congress had not yet created federal jurisdiction over these claims.1 See id.

1

The government tries to spin this history into a concession

that Congress has free rein to decide how federal takings claims

are resolved. See BIO 12. Yet, the same history applies to other

federal constitutional rights, see Zwickler, 389 U.S. at 245, and the

government does not suggest that Congress may assign Article I

judges to be final adjudicators of these rights.

6

This changed when Congress finally decided to

create the Court of Claims in 1855 and later passed the

Tucker Act in 1887. Federal jurisdiction now existed

over federal takings claims, enabling federal courts to

enforce the Takings Clause’s self-executing waiver of

sovereign immunity. This meant that Congress had to

respect Article III in organizing the Court of Claims.

And this is what Congress did between 1855 and 1982

by staffing the court with life-tenured Article III

judges.2 See Pet. 14–19.

Then, in 1982, Congress replaced the Article III

judges of the Court of Claims with Article I judges. See

id. The government argues that the doctrine of sovereign immunity excuses the ill effect of this change

on federal takings claimants seeking over $10,000 in

compensation. BIO 15–17. This argument falls flat,

however, because for federal takings claims, the Tucker

Act’s only function is to confer jurisdiction. That requires compliance with Article III—and term-limited

Article I judges do not comply with Article III.

B. The government presents a reading of

First English that cannot be squared

with First English’s text or history.

The government’s next major argument against

review of the First English split is a problematic

2

For this reason, it is not accurate to say, as the government

does, that the Court of Claims was an Article I court from 1887 to

1953. BIO 13. During this period, the main indicium of an Article

III court—i.e., life-tenured judges empowered to render final,

binding judgments—was always present.

7

reading of First English. BIO 16. In First English, this

Court had to decide the full scope of government liability imposed by the Takings Clause. See 482 U.S. at

306–07. This led the government to file an amicus brief

in First English urging the Court to reject the idea that

the Takings Clause “standing alone and without further congressional action, mandates a damage remedy

against the United States.”3 The government emphasized that “in [takings] cases arising under the Tucker

Act, the government waives its sovereign immunity so

as to make available . . . just compensation.”4

The Court got the message. In its First English

opinion, the Court took note of the government’s view

that the Takings Clause is “not a remedial provision”

due to “principles of sovereign immunity.” 483 U.S. at

315 n.9. The Court then held that a long line of earlier

Supreme Court takings cases “refute[d] the argument

of the United States that the Constitution does not, of

its own force, furnish a basis for a court to award

money damages against the government.” Id. (punctuation omitted) (bold added).

The government now argues that First English

stands for the narrow proposition that “the Fifth

Amendment creates a substantive right to recover just

compensation . . . that may be enforced under the

Tucker Act.” BIO 16 (punctuation omitted). But this is

the same argument that the government made—and

3

Brief for the United States as Amicus Curiae at 21, First

English, No. 85-1199, available at 1986 WL 727420.

4

Id.

8

this Court rejected—in First English. 483 U.S. at 315

n.9. The government nevertheless encourages the

Court to allow this argument to continue to stalk the

Article III rights of federal takings claimants like the

“ghoul in a late-night horror movie that repeatedly sits

up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches

Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia,

J., concurring).

The Court should decline the government’s invitation. It is no accident that First English describes the

Takings Clause as self-executing: it is because the

Clause waives sovereign immunity. The “overwhelming majority” of state high courts dealing with state

constitutional analogues of the Takings Clause have

reached the same conclusion. Colman v. Utah State

Land Bd., 795 P.2d 622, 633 & n.2 (Utah 1990) (collecting cases). Hence, review is merited here to end lower

court doubt on this issue—doubt that is otherwise

preventing courts from recognizing and protecting

the Article III rights of federal takings claimants like

Sammons.

C. The government errs in dismissing the

existence of a circuit split.

The government’s final major argument against

review of the First English split is an assertion that no

actual split exists. BIO 19–20. In particular, while

Sammons’ petition demonstrates that the Fourth Circuit and the Federal Circuit have ruled that the

9

Takings Clause waives immunity, the government argues that these rulings are dicta or distinguishable.

The government is wrong.

A statement “is not dictum if it . . . constitutes an

explication of the governing rules of law.” Netsphere,

Inc. v. Baron, 799 F.3d 327, 333 (5th Cir. 2015). That

description fits Hendler v. United States, in which the

Federal Circuit found, as part of a close analysis of federal takings law, that the Takings Clause waives immunity. 952 F.2d 1364, 1371 (Fed. Cir. 1991). The same

goes for Hair v. United States, 350 F.3d 1253, 1257

(Fed. Cir. 2003), which cites Hendler for its governinglaw explanation of the Takings Clause and sovereign

immunity.

This brings us to the Fourth Circuit’s decisions in

Mann and Lawyer. In Mann, the Fourth Circuit’s conclusion that the Takings Clause waives immunity was

an integral part of the panel’s holding that Title II of

the Family and Medical Leave Act did not have the

same effect. 120 F.3d at 37. And in Lawyer, the Fourth

Circuit held based on Mann (among other cases) that

“plaintiffs can bring direct claims under the Takings

Clause.” 220 F.3d at 302 n.4. The government dismisses Lawyer as only addressing state takings liability. See BIO 19–20. But a holding that the Takings

Clause waives immunity cannot be cabined in this

way—especially when one considers that for the first

century of this nation, the Takings Clause was understood to apply exclusively to the federal government.

See Barron v. Baltimore, 32 U.S. 243, 250–51 (1833).

10

Since the government cannot sweep away the

clear circuit split that exists on the meaning of First

English, the Court should conclude this split merits review. The alternative is the continued erosion of First

English by courts like the Sixth Circuit in Brott or the

Fifth Circuit here.

II.

Review is needed to protect the rights of

federal takings claimants like Sammons,

who are being forced to submit to Article I

judges exercising Article III power.

Assuming arguendo that the Takings Clause is not

an immunity waiver, the Court still has every reason

to grant Sammons’ petition. This is because Congress’s

power to waive sovereign immunity is not unlimited.

Congress cannot use this power “to attain an unconstitutional result.” W. Union Tel. Co. v. Foster, 247 U.S.

105, 114 (1918). Yet, Congress has done just this by using the Tucker Act’s purported immunity waiver to

compel federal takings claimants like Sammons to litigate before Article I judges in the first instance. The

government, in turn, either overlooks or assumes away

this problem.

A. The government fails to address the

power-mismatch problem.

Sammons’ petition observes that the Court of Federal Claims now consists of Article I judges exercising

Article III power—i.e., the power to issue final, binding

judgments that cannot be revised by the political

11

branches. Pet. 33–34. The government’s only response

is to argue that federal takings claims are among the

“public-rights matters that Congress may assign to

non-Article III courts.” BIO 19.

But even granting the government’s premise that

a federal takings claim is a public-rights matter, this

Court has never held that Congress may assign publicrights matters to Article I judges exercising Article III

power. Indeed, Justice Scalia had no doubt that the

Court would strike down “a statute giving to non-Article III judges just a tiny bit of purely judicial power in

a relatively insignificant field.” Morrison v. Olson, 487

U.S. 654, 709–10 (1991) (Scalia, J., dissenting). This

makes the government’s silence on this point a powerful reason to grant review.

B. The government erroneously assumes

away the judicial-cognizance problem.

Sammons’ petition also observes that federal takings claims are not public-rights matters that may be

removed from the original cognizance of Article III

judges. See Pet. 34–36. This follows from the reality

that: (1) federal takings claims are the subject of suits

at common law; (2) federal takings claims meet the criteria of private-rights disputes; and (3) federal takings

claims fall outside the criteria for public-rights matters. See id. The government has no answer to the first

two points or the rich common law history supporting

them. See BIO 19.

12

The government instead banks everything on its

history-driven assumption that takings claims are

public-rights matters. See BIO 7–11. The problem with

this assumption is that federal takings claims today

are a very different creature from those of earlier eras,

when regulatory takings claims were unknown. See

Pet. 11–13. Federal takings claims today almost always turn on “whether a taking has occurred”—i.e.,

whether a right to compensation has vested. Ark.

Game & Fish Comm’n v. United States, 568 U.S. 23, 38

(2012). And the “question [of ] whether a right has

vested . . . must be tried by the judicial authority.” Marbury v. Madison, 5 U.S. 137, 165 (1803).

Once the government’s public-rights assumption

is put aside, all that remains is the government’s argument that federal takings claimants retain the right to

“appeal to the Federal Circuit, an Article III court.”

BIO 18 n.6. But as Alexander Hamilton explained over

two centuries ago: “The right of appeal is by no means

equal to the right of applying, in the first instance, to a

Tribunal agreeable to the suitor.”5 It is better “to have

impartial justice . . . administered promptly and without delay; [and] not to be obliged to seek it through the

long and tedious and expensive process of an appeal.”6

5

Alexander Hamilton, The Examination Number VI, N.Y.

EVENING POST, Jan. 2, 1802, in 25 THE PAPERS OF ALEXANDER

HAMILTON (Harold Syrett, ed. 1977), http://bit.ly/2FrL9uS.

6

Id. (punctuation omitted).

13

III. The questions presented should be decided now, given the key property rights

and separation-of-powers issues at stake.

With review also being sought in Brott v. United

States, No. 17-712 (U.S.), the Court now has before it

two cases seeking to restore Article III as “a guardian

of individual liberty and separation of powers” for federal takings claimants. Stern, 564 U.S. at 466. The

Court should seize this opportunity, lest even more federal takings claimants be forced to accept adjudication

by Article I judges whose independence is not ensured

by the safeguards of Article III. In the alternative, the

Court should grant-vacate-remand here in light of Oil

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

LLC, No. 16-712 (U.S.).

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

CONCLUSION

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: March 7, 2018