Opposition Brief — Huntleigh USA USA Corp. v. United States (No. 08-198)

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No. 08-198

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In the Supreme Court of the Anited States

HUNTLEIGH USA CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE

Solicitor General

Counsel of Record

GREGORY G. KATSAS

Assistant Attorney General

JEANNE E. DAVIDSON

DOUGLAS N. LETTER

MICHAEL N. O'CONNELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Petitioner had contracts with various airlines to pro-

vide security screening for passengers and baggage on

commercial airplanes. After the September 11, 2001,

attacks, Congress passed legislation assigning to the

federal government the responsibility to provide such

security. One airline cancelled its services contract with

petitioner, while others allowed their contracts to ex-

pire. The question presented is as follows:

Whether the statutory directive that federal officials

assume responsibility for the performance of airport

security screening effected a compensable taking of peti-

tioner’s property.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Babbit v. Youpee, 519 U.S. 284 (1997) ................. 13

Cardinal Chem. Co. v. Morton Int'l, 508 U.S. 83

Dh hin ws waste gh ss ekbebaee eee Cane sé 00 ce 12

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ...... 9

Chicago, Burlington & Quincy R.R. v. Chicago, 166

cose h Gb Cee chad RNS Oe RR ew ee +e 6s 13

Cienega Gardens v. United States, 331 F.3d 1319

ee a a es cena es ee 10, 11

Concrete Pipe & Prods. of Cal., Inc. v. Construction

Laborers Pension Trust, 508 U.S. 602 (1993) ........ 13

Eastern Enters. v. Apfel, 524 U.S. 498 (1998) .......... 13

Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki

Sg EE ob vec ctcbeusbnneseccesccce 12

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ......... 13

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) ... 13

Kimball Laundry Co. v. United States, 338 U.S. 1

I a oe 0 A ee 9,10

Lucas v. South Carolina Coastal Council, 505 U.S.

ILS: aE a me 7,13

(II1)

Cases—Continued: Page

Massie v. United States, 226 F.3d 1318 (Fed. Cir.

Ta hs ee ees tue 13

Monongahela Navigation Co. v. United States, 148

EE lire c et cade dew betantekeesen es 8,9

Omnia Commercial Co. v. United States, 261 U.S. 502

a Kb cee U ee ane Le eabuiaeee Kéeee 6% passim

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ......... 13

Penn Cent. Transp. Co. v. New York City, 438 U.S.

ik Less keen bbamna seen UN VON wae 7,13

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302 (2002) ........... 10, 13

United States v. King, 395 U.S. 1 (1969) ............... 13

Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,

EE oe ch eucedenhe ash ets dee cs casa 12

Wisniewski v. United States, 353 U.S. 901 (1957) ...... 12

Constitution, statutes and rules:

ee eck onaeweeteoussoves 3, 6,9

Aviation and Transportation Security Act, Pub. L.

rr 2

I EE EE A vn dvacascdécdcviccwcess 2,12

National Housing Act, 12 U.S.C. 1701 et seg. .......... 10

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SAS IEE occ cc cccscacceccscesvecsecceenen 12

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40 U.S.C. 3113 (Supp. V 2005) ..........00..2........ 13

49 U.S.C. 114(a) (Supp. V 2005) .. 2.0222 eee 2

Statutes and rules—Continued: Page

49 U.S.C. 114(d) (Supp. V 2005) ...............2ee eee. 2

49 U.S.C. 44901(a) (2000) (amended 2001) .............. 2

Fed. R. App. P.:

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Jn the Supreme Court of the Anited States

No. 08-198

HUNTLEIGH USA CORPORATION, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-29a)

is reported at 525 F.3d 1370. Three opinions of the

Court of Federal Claims (Pet. App. 30a-46a, 50a-56a,

and 57a-85a) are reported at 75 Fed. Cl. 642, 65 Fed. Cl.

178, and 63 Fed. Cl. 440. Another opinion of the Court

of Federal Claims (Pet. App. 47a-49a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 15, 2008. The petition for a writ of certiorari was

filed on August 13, 2008. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Between 1974 and late 2001, federal law required

commercial airlines to ensure that “all passengers and

property that will be carried in a cabin of an aircraft in

air transportation or intrastate air transportation” were

subjected to security screening. 49 U.S.C. 44901(a)

(2000) (amended 2001); Pet. App. 4a-5a. Most airlines

complied with that requirement by hiring private secu-

rity contractors to perform the required screening.

Pet. 4; Pet. App. 4a.

In the wake of the September 11, 2001, attacks—

which were perpetrated by hijackers who had passed

through airport security—Congress determined that the

responsibility for aviation security should no longer be

assigned to the airlines. The Aviation and Transporta-

tion Security Act (ATSA), Pub. L. No. 107-71, 115 Stat.

597, created a new federal agency, the Transportation

Security Administration (TSA), to provide screening

services at the Nation’s commercial airports. See 49

U.S.C. 114(a) (Supp. V 2005); Pet. App. 5a. Under the

new statute, the Under Seeretary of Transportation for

Security is “responsible for security in all modes of

transportation.” 49 U.S.C. 114(d) (Supp. V 2005). Con-

gress specified that the Under Secretary was to “assume

civil aviation security functions and responsibilities” no

later than three months after ATSA’s November 19,

2001 enactment. ATSA § 101(g)(1), 115 Stat. 603.

2. Petitioner began offering passenger-screening

services to airlines in 1989, and baggage-screening ser-

vices in 1999, primarily under contracts that could be

terminated by the airlines without cause upon 30, 60, or

90 days’ notice. Pet. App. 4a, 8a, 37a. When ATSA was

enacted, petitioner had contracts to provide screening

for “approximately 75 airlines” at “some 35 airports

across the United States.” Jd. at 4a. After ATSA, one

airline terminated its contract with petitioner, and the

others allowed their contracts with petitioner to expire

pursuant to their terms. /d. at 8a.

3. On November 14, 2003, petitioner filed this suit in

the United States Court of Federal Claims. Pet. App.

6la. Petitioner alleged that ATSA’s transfer of respon-

sibility for security screening from airlines to the gov-

ernment resulted in a taking of its property without just

compensation in violation of the Fifth Amendment. /d.

at 7a, 30a-31a. More specifically, it alleged that the gov-

ernment had effectively appropriated petitioner’s con-

tracts by assuming responsibility for the performance of

the functions that petitioner had previously performed.

Id. at 7a. Petitioner also argued that the government

had effected a taking by destroying the goodwill and

going-concern value associated with its business. /d. at

8a, 3la.

After a trial, the Court of Federal Claims rejected

petitioner’s takings claim. Pet. App. 30a-39a. It held

that, “[w]ith regard to [petitioner’s] screening contracts,

the government’s actions amount, at most, to frustration

of purpose rather than a taking.” /d. at 37a. It also re-

jected petitioner’s claims based upon the goodwill and

going-concern value of its business, explaining that the

government had not taken the “underlying property”

with which the goodwill and going-concern value were

associated. Jd. at 39a.

4. The court of appeals affirmed. Pet. App. la-29a.

The court noted petitioner’s concession that the govern-

ment had not actually assumed its contracts with the

airlines. /d. at 16a. The court explained that, in light of

that concession, petitioner’s “argument must be that

ATSA rendered the contracts and the going concern

value and goodwill associated with [petitioner’s] security

screening business worthless.” Jbid.

The court of appeals analogized petitioner’s claim to

that of the plaintiff in Omnia Commercial Co. v. United

States, 261 U.S. 502 (1923) (Omnia), whose lucrative

contract came to an end when the government requisi-

tioned the steel that was the subject of the agreement.

Pet. App. 17a-18a, 20a. The Court in Omnia held that

no Fifth Amendment taking had occurred. See 261 U.S.

at 511. In this case, the court of appeals noted that

ATSA does not regulate petitioner directly, but instead

modifies the prior scheme of airline regulation by shift-

ing to a new entity the responsibility for screening pas-

sengers and baggage. Pet. App. 20a. Any losses that

petitioner suffered were an indirect result of ATSA’s

elimination of the airlines’ security-screening responsi-

bilities. /bid. Under Omnia, the court of appeals ex-

plained, such frustration of petitioner’s expectations

does not effect a cognizable taking. /bid.

The court of appeals further held that its reasoning

applied not only to petitioner’s claims concerning the

alleged taking of its contracts, but also to its claims

based upon going-concern value and goodwill. Pet. App.

24a n.3. The court explained that those property inter-

ests, like petitioner’s contract-based claim, had been

merely “frustrated” but not “taken” by the actions of the

government. /bid.'

' Petitioner's complaint also alleged that ATSA itself required the

government to compensate petitioner. That statutory claim was re-

jected by both the trial court (Pet. App. 40a-46a) and the court of ap-

peals (/d. at 24a-28a), and petitioner does not pursue it in this Court.

ARGUMENT

The court of appeals correctly held that the govern-

ment did not effect a taking of petitioner’s contractual

rights when Congress shifted responsibility for airline

passenger and baggage screening to a new governmen-

tal entity. That decision does not conflict with any deci-

sion of this Court, of another court of appeals, or of a

state court of last resort. Further review is not war-

ranted.

1. Petitioner’s chief contention (Pet. 16-19) is that

the court of appeals’ decision “{c]ontravenes [t]he [rJea-

soning” of Omnia Commercial Co. v. United States, 261

U.S. 502 (1923). In fact, the court of appeals correctly

applied Omnia. In that case, the plaintiff had a contrac-

tual right to buy a large quantity of steel plate at a

below-market price, but the government requisitioned

all of the seller’s steel production and affirmatively di-

rected it not to fulfill its contract with the plaintiff. Jd.

at 507. The frustrated buyer sued, alleging that the gov-

ernment had caused the buyer to incur large losses and

had thereby effected a taking. Jd. at 508. This Court

affirmed the dismissal of that claim.

The Court first explained that, although a contract is

“property” within the meaning of the Fifth Amendment,

“destruction of, or injury to, property is frequently ac-

complished without a ‘taking’ in the constitutional sense.

* * * There are many laws and governmental opera-

tions which injuriously affect the value of or destroy

property * * * but for which no remedy is afforded.”

Omnia, 261 U.S. at 508-509. The Court stated that “the

law affords no remedy” for “consequential loss or injury

resulting from lawful governmental action.” /d. at 510.

Applying that principle in the context of a contrac-

tual transaction, this Court held that, if “a contract or

other property is taken for public use, the Government

is liable; but if injured or destroyed by lawful action,

without a taking, the Government is not liable.” Omnia,

261 U.S. at 510. The Court acknowledged the plaintiff’s

claim that the steel was so closely identified with the

contract “that the taking of the former, ipso facto, took

the latter.” Jbid. But the Court refused to “confound

the contract with its subject-matter.” Jbid. The Court

explained that the “essence” of the executory contract

was the exchange of promises in which each party came

under an obligation and acq*:red a reciprocal right to

enforce the obligation. /bid. The government, however,

had not acquired “the [contractual] obligation or the

right to enforce it.” Jd. at 511. Thus, if the seller had

failed to provide the steel, the government would have

had no right to enforce the plaintiff’s contract; and if the

government had not paid for the steel, the seller’s rem-

edy would not have been enforcement of the contract.

Ibid. As a result, the Court rejected the buyer’s taking

claim, concluding that “[f]rustration and appropriation

are essentially different things,” and that only the latter

is compensable under the Fifth Amendment. /d. at 513.

With the minor distinction that the executory con-

tract in Omnia involved the sale of a good, whereas peti-

tioner’s executory contracts involved the sale of servi-

ces, the two cases are materially similar. In both cases,

the government’s actions caused contracts to come to an

end, but the government did not appropriate those con-

tracts. Rather, in each case, the government merely

frustrated the plaintiff’s business expectations.

Petitioner concedes that Omnia forecloses takings

claims for “consequential losses” (Pet. 18), but it con-

tends that its own interests were “more direct[ly]” af-

fected (Pet. 19) than those of the frustrated steel buyer

in Omnia. See also Pet. 14 (arguing that Omnia’s inter-

ests were “remotely impacted” by the actions of the gov-

ernment, while petitioner’s own interests were “the

avowed targets of the regulatory taking”). The court of

appeals correctly rejected that argument, explaining

that “the government’s actions [in Omnia] were directed

squarely at the contractual relationship that existed be-

tween” the steel seller and the steel buyer. Pet. App.

20a. Indeed, whereas the government obtained the steel

in Omnia by expressly “direct{ing]” the seller “not to

comply with the terms of [the buyer’s] contract,” 261

U.S. at 507, the government’s actions in this case were

not expressly directed at the contracts of petitioner or

any other screening contractor. They were instead di-

rected at the “subject-matter” (id. at 510) of those con-

tracts: aviation security screening.”

As the court of appeals also correctly held (Pet. App.

20a), although ATSA undoubtedly frustrated petitioner’s

business expectations by changing the regulations appli-

cable to the airlines, it did not regulate petitioner di-

rectly. The business that petitioner enjoyed before

ATSA’s enactment was an indirect consequence of the

extant regulatory framework, in which most airlines

> Because ATSA does not directly regulate petitivner’s conduct, peti-

tioner’s reliance (Pet. 17) on Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978), and Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), is misplaced. Those cases involved gov-

ernment-imposed restrictions on private parties’ development of their

own land. For similar reasons, petitioner's characterization of ATSA

as “nationaliz[ing] an entire private industry” (Pet. 28) is overwrought.

Although ATSA assigns to a new federal agency the security-screening

responsibilities that were previously performed by petitioner and sim-

ilar private contractors, the federal government has neither appropri-

ated petitioner’s tangible assets nor assumed petitioner's rights and

obligations under pre-existing contracts.

chose to fulfill their security-sereening responsibilities

by retaining contractors like petitioner. Pet. 4; Pet.

App. 4a. That legal backdrop, however, was always sub-

ject to change. Jd. at 35a. ATSA did not cause the TSA

to appropriate any of petitioner’s contracts. Rather,

Congress simply relieved the airlines of the security re-

sponsibilities it had previously imposed on them, there-

by frustrating petitioner’s business expectations by

eliminating the airlines’ demand for its services. Jd. at

20a. As in Omnia, that frustration of business expecta-

tions did not effect a taking.®

Petitioner also contends that the Court in Omnia

“acknowledged” an exception for “cases where the con-

tract at issue is ‘an integral part of’ the property taken.”

Pet. 18 (quoting Omnia, 261 U.S. at 513) (citing Monon-

gahela Navigation Co. v. United States, 148 U.S. 312,

329 (1893)). That purported exception, however, has no

application to petitioner’s suit. The underlying case,

Monongahela Navigation Co., involved an undisputed

physical taking of “a lock and dam.” Omnia, 261 U.S. at

513. The contract right mentioned in Omnia was the

accompanying “franchise to exact tolls,” which was rele-

vant to determining the “value” of the “lock and dam”

that had been taken—not to the question of whether

there had been a taking. /bid.; see Monongahela Navi-

* Petitioner suggests (Pet. 19) that this case is distinguishable from

Omnia because it occurred on a greater scale—i.e., because ATSA “was

specifically designed to nationalize the entire baggage screening in-

dustry.” In fact, the Omnia Court acknowledged that the steel contract

at issue was only one of “an appalling number of existing contracts” re-

lated to industrial production that the government had taken over as

part of the war effort. 261 U.S. at 513. The Court found, however, that

the broad scope of the government’s procurement measures did not

change the “essential[] differen[{ce]’ between “{f]rustration and appro-

priation.” /bid.

gation Co., 148 U.S. at 328-329 (concluding that “just

compensation for this lock and dam” corresponds to “the

whole value” of the property, which “depends largely

upon * * * the franchise to take tolls”). Thus, the ex-

ception petitioner infers from Omnia is irrelevant to the

present case, where the issue is whether the government

has taken property for purposes of the Fifth Amend-

ment.

2. Petitioner contends (Pet. 19-21) that the court of

appeals’ passing reference (Pet. App. 24a n.3) to Kim-

ball Laundry Co. v. United States, 338 U.S. 1 (1949),

provides an independent basis for this Court’s review.

The court of appeals explained that its analysis of peti-

tioner’s contractual rights applied equally to petitioner’s

claims based on deprivation of going-concern value and

goodwill because “those property interests, like [peti-

tioner’s] contracts, were merely ‘frustrated’ by the gov-

ernment’s enactment of ATSA. They were not taken.”

Pet. App. 24a n.3. In the sentence petitioner finds objec-

tionable, however, the court noted that in certain prior

cases going-concern value “ha[d] been held to be com-

pensable in the context of a temporary, but not a perma-

nent, taking.” J/bid. (citing, inter alia, Kimball Laun-

dry Co., 338 U.S. at 15).

Petitioner asserts (Pet. 21) that the court of appeals’

reference to petitioner’s going-concern and goodwill

interests has incorrectly “limit{ed] the compensation

due to claimants whose property has been permanently

taken.” But because the court of appeals expressly con-

cluded that there had been no taking here (whether tem-

porary or permanent), anything that could be inferred

about its views on the amount of “compensation due” in

permanent-taking cases would necessarily be dictum

and unworthy of review. See Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837, 842 (1984) (“this Court reviews

judgments, not opinions”).*

3. Petitioner contends (Pet. 22-26) that the Federal

Circuit’s ruling conflicts with that court’s earlier deci-

sion in Cienega Gardens v. United States, 331 F.3d 1319

(Fed. Cir. 2003). That claim is unfounded and provides

no sound basis for this Court’s review.

a. Cienega Gardens involved low-income housing

programs under the National Housing Act, 12 U.S.C.

1701 et seq. See 331 F.3d at 1325. In those programs,

the Department of Housing and Urban Development

(HUD) provided real-estate developers with mortgage

insurance that facilitated low-interest, 40-year mort-

gages on properties they owned. /bid. In return, HUD

and the owners entered into regulatory agreements that

required the properties to be used for low-income hous-

ing projects regulated by HUD for as long as the mort-

gaye insurance remained in effect, but allowed the own-

ers to leave the program after 20 years by prepaying the

remaining debt on their mortgages. /bid. When the 20-

* Although petitioner correctly notes (Pet. 20) that Kimball Laundry

Co. acknowledged some permanent takings in which going-concern

value could be compensable, see 338 U.S. at 12 (referring to instances

where “public-utility property has been taken over for continued oper-

ation by a governmental authority”), petitioner elides the fact that those

circumstances involved a physical taking, see id. at 12-13 (referring to

“the condemned facilities” of a public utility operated by the govern-

ment). By contrast, petitioner alleges a regulatory taking. As the

Court explained in Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302 (2002), it is often “inappropri-

ale to treat cases involving physical takings as controlling precedents

for the evaluation of a claim that there has been a ‘regulatory taking,’

and vice versa.” /d. at 323 (footnote omitted). Petitioner cites no eases

dealing with goodwill or going-concern value in the context of a perma-

nent regulatory taking.

year mark approached, Congress grew concerned that

many owners would exercise their prepayment option

and reduce the stock of federally assisted low-income

housing. /d. at 1326. Congress therefore enacted two

statutes that effectively prevented the owners from leav-

ing the program for several years. /d. at 1326-1327.

Numerous owners filed suit, contending that the govern-

ment had effected a regulatory taking by abrogating

their right to prepay the mortgages. Jd. at 1323-1324.

The Federal Circuit ruled in the owners’ favor, ex-

plaining that it found the facts of Omnia distinguishable

from the circumstances before it. In Omnia, this Court

explained that “the effect of the [government’s] requisi-

tion [of steel] was to bring the contract to an end, not to

keep it alive for the use of the Government.” 261 U.S. at

513. In Cienega Gardens, by contrast, the Federal Cir-

cuit concluded that the government had kept the plain-

tiffs’ coritracts alive for its own use by preventing the

plaintiffs from prepaying their mortgages (as the origi-

nal agreements would have allowed). 331 F.3d at 1335.

And, unlike its actions in Omnia, the government had

done so by altering “the contract rights themselves”

(i.e., the “clear, unqualified contract right[]” to prepay

a mortgage after 20 years), rather than by acquiring

“the subject matter of the contract.” /d. at 1333, 1334,

1335 & n.29.

The Federal Circuit’s reasoning in Cienega Gardens

is inapposite here. Petitioner could not plausibly con-

tend that the government kept petitioner’s contracts

with the airlines alive for its own use. Indeed, peti-

tioner’s entire case is built upon the termination (or ex-

piration without renewal) of those contracts. Moreover,

the government here dealt with the subject matter of

petitioner’s contracts (“civil aviation security functions

and responsibilities,” ATSA § 101(g)(1), 115 Stat. 603),

and it did not alter any of the terms of those agrec-

ments. In light of those factors, the court of appeals

correctly held that the governmental! conduct alleged to

effect a taking in this case is analogous to the federal

requisition of steel in Omnia rather than to the alter-

ation of contractual terms in Cienega Gardens. See Pet.

App. 20a-21a, 22a-23a.

b. Even if there were inconsistencies between the

decision below and Cienega Gardens, such an intra-cir-

cuit conflict would not warrant this Court’s review. See

Wisniewski v. United States, 353 U.S. 901, 902 (1957)

(per curiam).’ Petitioner attempts to evade that princi-

ple by asserting (Pet. 21) that a conflict within the Fed-

eral Circuit is “tantamount to a conflict within the cir-

cuits.” But petitioner cites only patent-law cases to sup-

port that proposition. Pet. 22 (citing Festo Corp. v.

Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722

(2002); Warner-Jenkinson Co. v. Hilton Davis Chem.

Co., 520 U.S. 17 (1997); Cardinal Chem. Co. v. Morton

Int'l, 508 U.S. 83 (1993)). Of course, the Federal Circuit

has exclusive appellate jurisdiction over those cases.

See 28 U.S.C. 1295(a)(1) and (4).

Petitioner is mistaken, however, in claiming (Pet. 22)

that the Federal! Circuit has “virtually complete jurisdic-

tion over Fifth Amendment takings cases.” Even in

takings suits against federal entities, the Federal Cir-

cuit does not have exclusive jurisdiction. In some cir-

cumstances, equitable relief might be appropriate to

prevent the operation of a federal statute that allegedly

amounts to a taking. Because the Court of Federal

* Despite its current claim of a conflict between Federal Circuit de-

cisions, petitioner did not file a petition for rehearing en banc in this

case. See Fed. R. App. P. 35(a)(1) and (b)(1)(A).

Claims cannot grant such relief, see United States v.

King, 395 U.S. 1, 5 (1969); Massie v. United States, 226

F.3d 1318, 1321 (Fed. Cir. 2000), such a claim would

need to be pursued in a federal district court. Accord-

ingly, this Court has adjudicated takings challenges to

federal statutes in reviewing decisions of the regional

courts of appeals. See, e.g., Hastern Enters. v. Apfel,

524 U.S. 498 (1998) (reviewing First Circuit decision);

Babbitt v. Youpee, 519 U.S. 234 (1997) (reviewing Ninth

Circuit decision); Concrete Pipe & Prods. of Cal., Inc. v.

Construction Laborers Pension Trust, 508 U.S. 602

(1993) (reviewing Ninth Circuit decision).°

Moreover, takings claims may also be brought

against state and local governments, see Chicago, Bur-

lington & Quincy R.R. v. Chicago, 166 U.S. 226, 241

(1897), and takings suits against non-federal entities are

frequently decided by state courts and by federal courts

of appeals other than the Federal Circuit. This Court

regularly decides takings issues on review of such deci-

sions. Indeed, many of the cases that petitioner cites

fall within that category. See Tahoe-Sierra Pres. Coun-

cil, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302

(2002); Palazzolo v. Rhode Island, 533 U.S. 606 (2001);

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992); First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987); Penn Cent.

Transp. Co. v. New York City, 438 U.S. 104 (1978); Gold-

blatt v. Town of Hempstead, 369 U.S. 590 (1962). Be-

cause petitioner has identified no conflict between the

° In addition, when the United States initiates a physical taking, it

files a condemnation proceeding in federal district court, see 40 U.S.C.

3113 (Supp. V 2005); 28 U.S.C. 1345; Fed. R. Civ. P. 71.1, and the

district court’s judgment is subject to review by the relevant regional

court of appeal, see 28 U.S.C. 1294(1).

decision in this case and any decision from another fed-

eral court of appeals or a state court of last resort, fur-

ther review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.