Amicus Curiae Brief — Clemente Properties, Inc., et al., Petitioners v. Pedro R. Pierluisi-Urrutia, et al.

No. 25-1426

In the

Supreme Court of the United States

CLEMENTE PROPERTIES, INC., et al.,

Petitioners,

v.

PEDRO R. PIERLUISI-URRUTIA, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First Circuit

BRIEF OF ATLANTIC LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Lawrence S. Ebner

Counsel of Record

Atlantic Legal Foundation

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

Nancie G. Marzulla

Marzulla Law, LLC

1150 Connecticut Ave., NW

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

Counsel for Amicus Curiae

121169

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF THE AMICUS CURIAE .................... 1

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 5

ARGUMENT ................................................................ 8

The Court Should Grant Certiorari and Adopt a

Per Se Rule For the Taking of Intangible

Property. ................................................................. 8

A. There is no constitutional basis for holding

that government can transform intangible

property into public property by ipse dixit

without triggering Fifth Amendment

protections. ................................................. 9

B. A test that courts routinely ignore is no

test at all................................................... 10

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Armstrong v. United States,

364 U.S. 40 (1960).................................................. 16

Arribas v. Am. Home,

165 D.P.R. 598 (D.P.R. 2005) .................................. 2

Bridge Aina Le’a, LLC v. Hawaii Land Use Comm’n,

141 S. Ct. 731 (2021).............................. 4, 5, 6, 7, 11

Brown v. Legal Found. of Washington,

538 U.S. 216 (2003)................................................ 15

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021)................................................ 13

Colon Vazquez v. Baez Perez,

214 D.P.R. 1062 (D.P.R. 2024) ............................ 3, 8

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916).................................................. 8

Hodel v. Irving,

481 U.S. 704 (1987)............................................ 6, 15

Horne v. Department of Agriculture,

576 U.S. 350 (2015).......................................... 13, 14

International Paper Co. v. United States,

282 U.S. 399 (1931)................................................ 16

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)................................................ 15

iii

Louisville Joint Stock Land Bank v. Radford,

295 U.S. 555 (1935)................................................ 16

Lynch v. United States,

292 U.S. 571 (1934)................................................ 16

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893)................................................ 10

Murr v. Wisconsin,

582 U.S. 383 (2017).................................................. 7

Palazzolo v. Rhode Island,

533 U. S. 606 (2001)................................................. 7

Penn Central Transp. Co. v. City of New York,

438 U.S. 104 (1978)................................ 4, 12, 13, 15

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922)................................................ 12

Phillips v. Washington Legal Found.,

524 U.S. 156 (1998)................................................ 15

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984)...................................... 6, 14, 15

Veryfine Prods., Inc. v. Colon Bros.,

799 F. Supp. 240 (D.P.R. 1992) ........................... 2, 3

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980)............................................ 5, 17

Yancey v. United States,

915 F.2d 1534 (Fed. Cir. 1990) .................... 7, 17, 18

iv

Statutes

10 L.P.R.A. § 223–224b ............................................... 2

10 L.P.R.A. § 223a ....................................................... 2

10 L.P.R.A. § 223b ....................................................... 3

Other Authorities

6 John Adams, The Works of John Adams (Charles

Francis Adams ed., Little, Brown & Co. 1851) ....... 9

Brown & Merriam, On the Twenty-Fifth Anniversary

of Lucas: Making or Breaking the Takings Claim,

102 Iowa L. Rev. 1847 (2017) .................................. 4

John D. Echeverria, Is the Penn Central ThreeFactor Test Ready for History's Dustbin?, 52 Land

Use L. & Zon. Dig. 3 (2000) ................................... 11

Steven J. Eagle, The Four-Factor Penn Central

Regulatory Takings Test, 118 Pa. St. L. Rev. 601

(2014)...................................................................... 11

Constitutional Provisions

U.S. Const. amend. V .................................................. 8

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal

Foundation (ALF) is a national, nonprofit,

nonpartisan, public interest law firm. ALF’s mission

for the past five decades has been to advance the rule

of law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from the distinguished legal

scholars, former government officials, corporate legal

officers, private practitioners, business executives,

and prominent scientists who serve on its Board of

Directors and Advisory Council, ALF pursues its

mission by participating as amicus curiae in carefully

selected appeals before the Supreme Court, federal

courts of appeals, and state supreme courts. See

atlanticlegal.org.

* * *

The Fifth Amendment’s Just Compensation

Clause (also known as the Taking Clause) recognizes

that private ownership of property and economic

liberty are foundational principles in our nation of

individual rights, liberty, and free enterprise, and are

intrinsic to our nation’s social fabric. ALF has

Petitioners’ and Respondents’ counsel have received timely

notice of this brief in accordance with Supreme Court Rule 37.2.

No counsel for a party authored this brief in whole or part, and

no party or counsel other than the amicus curiae and its counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

1

2

participated as amicus curiae in many cases where, as

here,

overly

aggressive

and

confiscatory

governmental action raises serious taking concerns. 2

This is such a case. The question presented—

whether Puerto Rico can evade its constitutional duty

to pay just compensation for its appropriation of the

Roberto Clemente property right simply because the

property is intangible (a trademark)—squarely aligns

with ALF’s mission of protecting private property

from unjust and uncompensated government

confiscation.

INTRODUCTION

Under Puerto Rico’s Trademark Act and its

successor provisions, trademark owners acquire the

exclusive right to use a mark in commerce. 3 As the

Puerto Rico Supreme Court has confirmed, ownership

of a mark is acquired through use of that mark or its

registration. 4 Recognized as an intangible property

right under Puerto Rico law, trademark owners have

2 See, e.g., Br. of Atl. Legal Found. As Amicus Curiae In Support

of Petitioners in United Water Conservation District v. United

States, No. 25-523 (U.S. Nov. 28, 2025); Devillier v. Texas, No.

22-913 (U.S. Nov. 20, 2023); Tyler v. Hennepin County, No. 22166 (U.S. March 3, 2023); and Sackett v. Environmental

Protection Agency, No. 21-454 (U.S. April 14, 2022).

3 See Veryfine Prods., Inc. v. Colon Bros., 799 F. Supp. 240, 250

(D.P.R. 1992); 10 L.P.R.A. § 223–224b.

4 See Arribas v. Am. Home, 165 D.P.R. 598, 605 (D.P.R. 2005)

(“Our Trademark Law, therefore, combines ‘the right arising

from use with the right constituted by registration.’”); see also 10

L.P.R.A. § 223a.

3

an exclusive right to use of that mark, along with

incidental rights such assignability, transferability,

and the right to injunctive relief against infringement

and dilution. 5 The essence of a trademark, however, is

the owner’s exclusive right to use of that mark. 6

Petitioners, the three adult sons of baseball

legend, Roberto Clemente, and two entities (Clemente

Properties, Inc. and 21 In Right, Inc.) (collectively “the

Clementes”), have actively worked to protect their

late-father’s legacy, his philanthropy, and the Roberto

Clemente trademark. 7

There is no question that for its own beneficial use

Puerto Rico, under two resolutions enacted by the

Puerto Rican legislature, appropriated the Roberto

Clemente trademark and earned $15 million from

that use as a result.

The Clementes vigorously objected to Puerto Rico’s

appropriation of their trademark. Affirming the

dismissal of the Clementes’ per se taking lawsuit, the

First Circuit held that Puerto Rico was off the

“constitutional hook” because a trademark is an

intangible property right under Puerto Rico law. 8

5 See Colon Vazquez v. Baez Perez, 214 D.P.R. 1062, 1084 n.11

(D.P.R. 2024).

6 10 L.P.R.A. § 223b; see also Veryfine Prods., 799 F. Supp. at 251

(holding that trademark owner “has the right to the exclusive use

of the marks and to preclude the use of similar marks”).

7 Pet. App. 4a.

8 See Pet. App. 59a, 75a, 144a.

4

Therefore, they concluded, the taking was analyzed as

a regulatory taking under the Penn Central 9 ad hoc,

factual inquiry standard, referred to as a three-factor

taking test. 10

Applying this standard, the district court held that

the Clementes had not met their pleading burden and

dismissed the complaint, which the First Circuit

affirmed. 11

But few plaintiffs can meet the Penn Central

taking standard, as Justice Thomas noted in his

dissenting opinion in Bridge Aina Le’a, LLC v. Hawaii

Land Use Comm’n. 12 As one survey of takings cases

brought using this test has shown, out of “more than

1,700 cases over a 25-year period, there were only 27

successful takings claims . . . a success rate of just

1.6%[.]” 13 This is because, as Justice Thomas also

noted, “nobody—not States, not property owners, not

9 Penn Central Transp. Co. v. City of New York, 438 U.S. 104

(1978).

10 See Pet. App. 63a–64a, 147a–148a.

11 See id.

12 See Bridge Aina Le’a, LLC v. Hawaii Land Use Comm’n, 141

S. Ct. 731 (2021) (Thomas, J., dissenting).

13 Id. at 731 (Thomas, J., dissenting) (citing Brown & Merriam,

On the Twenty-Fifth Anniversary of Lucas: Making or Breaking

the Takings Claim, 102 Iowa L. Rev. 1847, 1849–1850 (2017)).

5

courts, nor juries—has any idea how to apply this [the

Penn Central] standardless standard.” 14

SUMMARY OF ARGUMENT

In Webb’s Fabulous Pharmacies, Inc., 15 this Court

declared that government cannot “by ipse dixit . . .

transform private property into public property”

without payment of just compensation. 16 This is,

however, just what Puerto Rico has done here. That

the property taken for public use is intangible is a red

herring. This issue is whether the core component of

the property rights—the right to exclusive use—has

been transformed by Puerto Rico’s two resolutions

into public property. This property has. Puerto Rico is

now constitutionally obligated to pay for what it has

taken.

The First Circuit’s opinion, which relies on the

unworkable Penn Central taking standard, also

highlights the need to revisit the artificial dichotomy

between the per se taking test and the unworkable, ad

hoc, factual inquiry under the Penn Central

regulatory taking standard. Calling the Penn Central

standard the “know-it-when-you-see-it test[,]” Justice

14 Id.

15 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155

(1980).

16 Id. at 164.

6

Thomas has stated that any test is “no good if one

court sees it and another does not.” 17

In tacit recognition that the Penn Central standard

is not a test at all, this Court ignores more often than

it applies the three Penn Central factors: the

character of the government’s action, the

reasonableness of the owner’s investment-backed

expectations, and the economic impact of the

regulation. For example, in Ruckelshaus v.

Monsanto, 18 a case involving the government’s

disclosure of a trade secret (another intangible

property right), the Court decided the taking based

only on the destruction of the owner’s reasonable,

investment-backed expectation. 19

And in Hodel v. Irving, 20 a case involving the

taking of Indian tribal members’ right to devise

property, the Court found a taking of that right

unconstitutional. Noting that the right to devise

property is such a long-standing right in AngloAmerican law, the holding turned on the character of

the government’s actions, which the Court found was

so intrusive as to support a taking determination. 21

17 Bridge Aina Le’a, 141 S. Ct. at 732 (Thomas, J., dissenting).

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

19 See id. at 1011.

20 Hodel v. Irving, 481 U.S. 704 (1987).

21 See id. at 705.

7

Lower courts, too, routinely ignore the Penn

Central three-factor test. The Federal Circuit found

that the government’s required destruction of a

healthy turkey-breeder’s entire stock was a taking

because of the character of the government’s actions:

“Why should the Yanceys be forced to bear their own

losses when their turkeys were not diseased? The

Yanceys’ losses came about because of the

Government’s action.” 22

On at least two occasions, Justice Thomas has

called on the Court to revisit the Penn Central taking

test. 23 In one of these instances, he specifically stated:

“It is time to give more than just ‘some, but not too

specific, guidance.’ If there is no such thing as a

regulatory taking, we should say so. And if there is,

we should make clear when one occurs.” 24

This Court has never held that the government’s

transformation of private property into public

property should be analyzed under the ad hoc, factual

inquiry discussed in Penn Central. And contrary to the

First Circuit’s analysis, there is nothing in Puerto

22 Yancey v. United States, 915 F.2d 1534, 1542 (Fed. Cir. 1990).

23 See Bridge Aina Le’a, 141 S. Ct. at 732 (Thomas, J., dissenting);

see also Murr v. Wisconsin, 582 U.S. 383, 419 (2017) (Thomas, J.,

dissenting) (“In my view, it would be desirable for us to take a

fresh look at our regulatory takings jurisprudence, to see

whether it can be grounded in the original public meaning of the

Takings Clause of the Fifth Amendment or the Privileges or

Immunities Clause of the Fourteenth Amendment.”).

24 Bridge Aina Le’a, 141 S. Ct. at 732 (Thomas, J., dissenting)

(citing Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001)).

8

Rico law that suggests that Puerto Rico is free to by

ipse dixit transform a trademark into public property.

Trademarks are recognized as property rights under

Puerto Rico law and therefore are fully protected

against the kind of taking that occurred here without

facing constitutional consequences. 25

Nor does the Just Compensation Clause itself

admit of any suggestion that the government can take

for its own beneficial use intangible forms of property,

without paying just compensation for the taking. The

clause says the opposite: “[N]or shall private property

be taken for public use, without just compensation.” 26

ARGUMENT

The Court Should Grant Certiorari and Adopt a

Per Se Rule For the Taking of Intangible

Property.

Puerto Rico transformed the Clementes’ exclusive

use to their trademark into public property by

enactment of two resolutions. Transforming private

property into public property by ipse dixit is exactly

what the Fifth Amendment was designed to address

by preventing the majority from destroying individual

rights with impunity. As John Adams, in his Defence

of the Constitutions of Government, said: “The moment

25 See Colon Vazquez, 214 D.P.R. at 1084 n.11 (“‘The right to use

a trademark is recognized as a kind of property, of which the

owner is entitled to the exclusive enjoyment to the extent that it

has actually been used’” (quoting Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251, 259 (1916))).

26 See U.S. Const. amend. V.

9

the idea is admitted into society, that property is not

as sacred as the laws of God, and that there is not a

force of law and public justice to protect it, anarchy

and tyranny commence.” 27

The Penn Central taking standard should not be

allowed to shield government against outright

appropriations of private property, such as occurred

here. This case provides the Court an excellent

opportunity to adopt a per se taking rule for the

government appropriation of intangible property

rights.

A. There is no constitutional basis for holding

that government can transform intangible

property into public property by ipse dixit

without

triggering

Fifth

Amendment

protections.

The district court dismissed the Clementes’ per se

taking claim, holding that because the Clementes had

failed to plead that their trademark still retained

some economic value, they had not filed a taking claim

under the Penn Central standard. 28 Focusing on the

nature of the property right, instead of the fact that

Puerto Rico has taken for itself the Clementes’

property, the Court reached the untenable conclusion

that government may simply enact a law authorizing

27 6 John Adams, The Works of John Adams 9 (Charles Francis

Adams ed., Little, Brown & Co. 1851) (reprinting A Defence of the

Constitutions of Government of the United States of America

(1787)).

28 Pet. App. 147a–148a.

10

it to make beneficial and profitable use of that

property with constitutional impunity.

How the district court could have determined that

the Clementes’ complaint should have been dismissed

on the pleadings in the face of these facts is

inexplicable. Puerto Rico is using the Clementes’

trademark for their license plates, and far from

paying the Clementes for their trademark, Puerto

Rico is greatly profiting from it. 29

There is nothing in the Just Compensation Clause

that supports the holdings below. As the only express

money damages provision in the Constitution, the

clause demands that money be paid to an owner of

private property whenever that property is taken for

public use. And whenever the government requires a

property owner to surrender “to the public something

more and different from that which is exacted from

other members of the public, a full and just equivalent

shall be returned to him.” 30

B. A test that courts routinely ignore is no test

at all.

The courts below relied on the Penn Central ad hoc,

three-factor taking standard to reach their conclusion

that the Clementes are not even entitled to bring their

claim for just compensation for review on the merits.

That this taking standard could be used to bar a

29 Pet. App. 49a.

Monongahela Nav. Co. v. United States, 148 U.S. 312, 325

(1893).

30

11

blatant transformation of private property into public

property from constitutional review points up the

need for serious scrutiny of this standard. As Justice

Thomas noted in his dissenting opinion in Bridge Aina

Le’a, LLC v. Hawaii Land Use Comm’n, 31 in which he

urged the Court to revisit the unworkable Penn

Central standard, commentators from a variety of

perspectives have noted that Penn Central should be

replaced with a workable taking test. In his dissent,

he cites to one article entitled, “Is the Penn Central

Three-Factor Test Ready for History’s Dustbin?[,]” 32

in which the author described Penn Central as “so

vague and indeterminate that it invites unprincipled,

subjective decision making[.]” 33 He also cites to

another commentator who observed that the standard

“has become a compilation of moving parts that are

neither individually coherent nor collectively

compatible.” 34

The Penn Central taking standard was not

designed as a takings test, nor was it applied as a

three-factor test in Penn Central itself. In 1922,

Justice Holmes articulated the famous “too far”

31 Bridge Aina Le’a, 141 S. Ct. 731 (Thomas, J., dissenting).

32 John D. Echeverria, Is the Penn Central Three-Factor Test

Ready for History's Dustbin?, 52 Land Use L. & Zon. Dig. 3

(2000).

33 Id. at 7.

Steven J. Eagle, The Four-Factor Penn Central Regulatory

Takings Test, 118 Pa. St. L. Rev. 601, 602 (2014).

34

12

standard for evaluating takings claims. 35 Over 50

years later, Justice Brennan, writing for this Court in

Penn Central Transp. Co. v. City of New York, 36

quoted Justice Holmes’s too far standard finding then

that a better taking standard was needed. But, after

surveying takings jurisprudence in the intervening

decades, Justice Brennan observed that no workable

test had emerged: “[T]his Court, quite simply, has

been unable to develop any ‘set formula’ for

determining when ‘justice and fairness’ require that

economic injuries caused by public action be

compensated by the government, rather than remain

disproportionately concentrated on a few persons.” 37

He then observed that courts generally use three

factors to guide themselves in determining whether

the Fifth Amendment has been violated: (1) the

character of the government action; (2) the

reasonableness of the owner’s investment-backed

expectations; and (3) the economic impact. 38

But the Penn Central court never said that all of

these factors had to be used all the time and in all

cases. Instead, these factors were offered as “several

factors” that were identified as having “particular

significance.” 39 And when it came to analyzing the

35 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

36 Penn Central, 438 U.S. 104.

37 Id. at 124.

38 Id.

39 Id.

13

facts before it, the Penn Central court determined that

no taking had occurred on the basis of only one of the

three factors—economic impact. 40

The Court did not question whether the city’s goal

of protecting historic sites, i.e., the character of the

government action, was legitimate, nor did it analyze

the means the Commission used to achieve that goal,

i.e., the restriction’s interference with reasonable,

investment-backed expectations. So from the outset,

the Penn Central taking standard has been honored

in the breach. 41

And more recently, in Cedar Point, 42 the Court’s

taking analysis of the owner’s right to exclude others

from its property treated the right to exclude as an

intangible legal right, heavily reinforcing the

conclusion that the Penn Central taking standard is

ready for the historical dustbin. Emphasizing that the

California regulation actively appropriated the

owner’s intangible “right to exclude[,]” there was no

discussion of any of the other two Penn Central

factors. 43 Likewise, in Horne v. Department of

Agriculture, 44 the Court held that government cannot

seize personal property (raisins) without per se just

40 Id. at 137–138.

41 Id.

42 Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021).

43 Id. at 158.

44 Horne v. Department of Agriculture, 576 U.S. 350 (2015).

14

compensation. 45 Again, there was no balancing or

testing of the taking claim under Penn Central in

either of these recent decisions.

Here, too, prior to the passage of Puerto Rico’s two

resolutions authorizing it to use the Roberto Clemente

trademark for its own purposes, the Clementes held

the exclusive right to use that mark. Puerto Rico, for

its own advantage, appropriated and destroyed what

had once been their exclusive use right.

In Ruckelshaus v. Monsanto Co., 46 the plaintiff

sued the Environmental Protection Agency (EPA),

alleging that the agency’s disclosure of confidential

material to the public revealed valuable trade

secrets. 47 Although an intangible property right, the

Court held that the federal government had “explicitly

guaranteed to Monsanto and other registration

applicants” under the Federal Insecticide, Fungicide,

and Rodenticide Act (FIFRA) that its confidentiality

and exclusive use of its trade secrets would be

protected. 48 The Court therefore found a taking

without regard to either of the other two Penn Central

factors, finding that interference with investmentbacked expectations was controlling: “[W]e find that

the force of this factor is so overwhelming . . . that it

45 Id. at 365–367.

46 Ruckelshaus, 467 U.S. 986.

47 Id. at 986.

48 Id. at 1011.

15

disposes of the taking question regarding those

data.” 49

In Hodel v. Irving, 50 a case involving the taking of

Indian tribal members’ right to devise property, the

Court found a taking solely because the character of

the government’s actions was so intrusive. 51 Notably,

neither of the other factors supported a taking: no

investment-backed expectations were affected and the

economic impact on the property was de minimis. 52

Comparing the appropriation of interest to the

physical occupation of the rooftop in Loretto, 53 the

Court has also applied the per se taking test to cases

involving the forced transfer of money (interest

earned on a lawyer’s IOLTA trust account) from

private to public use. 54

And the Court has used a per se analysis to

determine that the elimination of a lien to secure

payment is a taking: “Before the liens were destroyed,

49 Id. at 1005.

50 Hodel, 481 U.S. 704.

Id. at 716 (finding a taking where “the character of the

Government regulation here is extraordinary.”).

51

52 Id. at 715.

53 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982).

54 Brown v. Legal Found. of Washington, 538 U.S. 216, 235 (2003)

(citing Phillips v. Washington Legal Found., 524 U.S. 156 (1998);

Penn Cent. Transp. Co., 438 U.S. 104; and Loretto, 458 U.S. 419).

16

the lienholders admittedly had compensable property.

Immediately afterwards, they had none.” 55

In Lynch v. United States, 56 the Court held that

Congress cannot, without triggering the Fifth

Amendment’s Just Compensation Clause, repudiate

contractual obligations of the United States. 57

In International Paper Co. v. United States, 58 the

Court found a per se taking of a contract to provide

water to power the company’s sawmill when the

United States requisitioned all Niagara River

hydropower for war production. 59

In Louisville Joint Stock Land Bank v. Radford, 60

the Court held that a statute that deprived the bank

of its pre-existing contract rights under a mortgage

was a taking, without regard to the ad hoc, multifactor test. 61

55 Armstrong v. United States, 364 U.S. 40, 48 (1960).

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

57 Id. at 579.

58 International Paper Co. v. United States, 282 U.S. 399 (1931).

59 Id. at 408.

60 Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555

(1935).

61 Id. at 589.

17

In Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 62 the Court held that a Florida statute

authorizing the clerk of Court to transfer interest on

an interpleader fund to the county, that should have

been paid to the creditors, was a compensable taking,

explaining that the Florida statute has the “practical

effect of appropriating for the county the value of the

use of the fund for the period in which it is held in the

registry[,]” 63 emphasizing that:

[A] State, by ipse dixit, may not

transform private property into public

property without compensation . . . .

This is the very kind of thing that the

Taking Clause of the Fifth Amendment

was meant to prevent. That Clause

stands as a shield against the arbitrary

use of governmental power. 64

The Federal Circuit likewise ignored two of the

three Penn Central factors in Yancey v. United

States, 65 a case in which a flock of healthy turkeys was

destroyed for the stated purpose of protecting health,

basing its decision solely on the character of the

government’s

action:

“Bluntly

stated,

the

consequences of the Government’s action cannot be

ignored. Why should the Yanceys be forced to bear

62 Webb’s Fabulous Pharmacies, 449 U.S. 155.

63 Id. at 164.

64 Id.

65 Yancey, 915 F.2d 1534.

18

their own losses when their turkeys were not

diseased? The Yanceys’ losses came about because of

the Government’s action.” 66

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

NANCIE G. MARZULLA

MARZULLA LAW, LLC

1150 Connecticut Ave., NW

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

July 2026

66 Id. at 1542.