Amicus Curiae Brief — John R. Sand & Gravel Co. v. United States (No. 06-1164)

FILED

AUG 3 - 2¢07

6) OFFICE OF THE OL

No. 06-1164 LSUPREME COUa7

In the

Supreme Court of the Anited States

+

JOHN R. SAND & GRAVEL COMPANY,

Petitioner,

v.

UNITED STATES,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Federal Circuit

>

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

-

DIANA M. KIRCHHEIM JAMES S. BURLING

Counsel of Record Pacific Legal Foundation

Pacific Legal Foundation 3900 Lennane Drive, Suite 200

10940 NE 33rd Place, Suite 210 Sacramento, California 95834

Bellevue, Washington 98004 Telephone: (916) 419-7111

Telephone: (425) 576-0484 Facsimile: (916) 419-7747

Facsimile: (425) 576-9565

Counsel for Amicus Curiae Pacific Legal Foundation

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QUESTIONS PRESENTED

Whether constitutional claims for just compensation

under the Fifth Amendment are subject to sovereign

immunity when the mandate of just compensation is

self-executing.

Whether sovereign immunity is a legitimate basis for

holding 28 U.S.C. § 2501 as jurisdictional.

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TABLE OF CONTENTS

Page

EE ee i

pf Foe Fol. + ere ili

IDENTITY AND INTEREST OF AMICUS CURIAE .... 1

SUMMARY OF ARGUMENT ..............00-s ees 2

EE oie rks atiehde dates scon dence nant 3

I. CONSTITUTIONAL CLAIMS FOR

JUST COMPENSATION ARE NOT

SUBJECT TO SOVEREIGN IMMUNITY ........ 3

A. There Is No Sovereign Immunity from

Fifth Amendment Takings Claims .......... 3

B. The Just Compensation Clause of the

Fifth Amendment Is Self-Executing .......... 6

Il. SOVEREIGN IMMUNITY IS NOT A

LEGITIMATE BASIS JUSTIFYING A

STRICT STATUTE OF LIMITATIONS

Pe COE ED Wecccberetsvccecccvesses 9

MTP TTR CULT TET CU TTT 11

ill

TABLE OF AUTHORITIES

Page

Cases

Alder v. United States, 785 F.2d 1004

es hectic hain hkdheeswesnenseseus 4

Andalex Resources, Inc. v. United States,

a esa ehnespenes 6

Arnberg v. United States, 757 F.2d 971

(9th Cir. 1984), cert. denied, :

Pe MEE Fewe eA Sb ebs depcdceecicresse 4

Caguas Cent. Fed. Sav. Bank v. United States,

215 F.3d 1304 (Fed. Cir. 2000), cert. denied,

ge TTT TT ETITT TTT T TTT Lee 9

City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999) .........+++- l

Cyprus Amax Coal Co. v. United States,

205 F.3d 1369 (Fed. Cir. 2000), cert. denied,

TTT OCCT T TTT TTIET TLE 8

First English Evangelical Lutheran Church of

Glendale v. County of L.A., 482 U.S. 304 (1987) .... 6-8

Hair v. United States, 350 F.3d 1253

ad dit iddededhenkenvesesonnsnueee 8

Henke v. United States, 60 F.3d 795

EE inks Dinh ebb dE CHES EE DOAE SE EEEC 10

Hollister v. Benedict & Burnham Mfg. Co.,

Se ED 5 bo btesbusanescdesedeseubesedss 5

Hughes Communications Galaxy, Inc. v. United States,

26 Cl. Ct. 123 (1992), overruled on other grounds,

998 F.2d 953 (Fed. Cir. 1993), reh’g denied.......... 4

iV

TABLE OF AUTHORITIES—Continued

Page

Hurley v. Kincaid, 285 U.S. 95 (1932) ..........0 cee 5

Irwin vy. Dep’t of Veterans Affairs, 498 U.S. 89 (1990)... 10

Jacobs v. United States, 290 U.S. 13 (1933) ............ 7

John R. Sand & Gravel Co. v. United States, |

457 F.3d 1345 (Fed. Cir. 2006) .................. 2-3

Leistiko v. Secretary of Army, 922 F. Supp. 66

Sas GEE «os ccvsouccledscaneeaeshuseeeanuan 8

Lingle vy. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ...... l

Martinez v. United States, 333 F.3d 1295

(Fed. Cir. 2003) cert. denied,

FRA MTTNE, ocnccbactddceddoesssccessuas 9

Nollan v. California Coastal Commission,

Re SP EEE, i o7wcus.wex bdnedeehsiserreoce l

Palazollo v. Rhode Island, 533 U.S. 606 (2001) ......... |

T.O.F.C., Inc. v. United States,

ef & fh. S| = rere errr rr rT Ts 4

United States v. Causby, 328 U.S. 256 (1946)...... 4-5, 11

United States v. Clarke, 445 U.S. 253 (1980) ......... 6-7

Yearsley v. W. A. Ross Constr. Co.,

Pe EE 6 G.5.b'0. kc LN b'005h 80 bo 0seeanent 5

United States Constitution

as Gee CI We Or <6 oo 65h ddd ces tbureecs oS

United States Statutes

Be a DUT 6 6 iw kv dd coeds - ce eveuee 2,5, 9-11

aD Pe»

Vv

TABLE OF AUTHORITIES—Continued

Page

Rules of Court

elected uh edged Wdhesnced cavecs 10

eth sss cdeuhapiaess induces onceces 1

SE ROC eee bese Ese eet ade eee seedeesetés 1

Miscellaneous

Berger, Eric, The Collision of the Takings

and Sovereign Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ................ 3

Grant, Eric, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) .............. 3, 5-6, 8-9

Heald, Paul J. & Wells, Michael L., Remedies for

the Misappropriation of Intellectual Property

by State and Municipal Governments Before

and Afier Seminole Tribe: The Eleventh

Amendment and Other Immunity Doctrines,

55 Wash. & Lee L. Rev. 849 (1988) ................ 6

Jackson, Vicki C., Seductions of Coherence, State

Sovereign Immunity and the Denationalization

of Federal Law, 31 Rutgers L.J. 691 (2000) .......... 6

6 Nichols, P., Eminent Domain (3d rev. ed. 1972) ....... 6

Tribe, Laurence H., American Constitutional Law

re cd dee ae keedeeuceeebecseetes 4

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IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3(a), Pacific Legal

Foundation (PLF) submits this amicus curiae brief in support of

Petitioner John R. Sand & Gravel.’ The parties have consented

to the filing of this amicus curiae brief.

Founded almost thirty-five years ago, PLF is the largest

and most experienced public interest legal foundation of its

kind. PLF is a nonprofit, tax-exempt corporation organized

under the laws of the State of California for the purpose of

engaging in litigation in matters affecting the public interest.

PLF has participated as amicus or lead counsel in previous

cases involving the Takings Clause of the Constitution. See,

e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005);

Palazollo v. Rhode Island, 533 U.S. 606 (2001); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687

(1999); and Nollan v. California Coastal Commission, 483 U.S.

825 (1987). PLF believes that the proposed brief amicus curiae

will help this Court ascertain the constitutional limits of

sovereign immunity.

' Pursuant to this Court’s Rule 37.3(a), all parties have consented to

the filing of this brief. Letters evidencing such consent have been

filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the

preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

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

Court of Federal Claims with jurisdiction over takings claims

brought against the United States. The statute of limitations

applicable to suits in the Court of Federal Claims provides, in

pertinent part:

Every claim of which the United States Court of

Federal Claims has jurisdiction shall be barred

unless the petition thereon is filed within six years

after such claim first accrues.

28 U.S.C. § 2501 (2000). The Federal Circuit issued a decision

holding that Section 2501 constitutes a jurisdictional limit on

the authority of the Court of Federal Claims. The court relied

upon case law that filing within the statute of limitations period

was a condition of the government’s waiver of sovereign

immunity in the Tucker Act and thus must be strictly construed.

John R. Sand & Gravel Co. v. United States, 457 F.3d 1345,

1354 (Fed. Cir. 2006). By doing so in a case involving the

Takings Clause of the Fifth Amendment, the Fedcral Circuit has

wrongly applied the doctrine of sovereign immunity to

constitutional claims for just compensation. The Takings

Clause is a limitation of sovereign immunity. Sovereign

immunity cannot defeat the solid command of the Fifth

Amendment in the context of suits to enforce the “just

compensation” guarantee.

The Federal Circuit’s strict jurisdictional view of the

statute of limitations for Petitioner’s takings claim cannot be

based on the doctrine of sovereign immunity. Receiving just

compensation under the Fifth Amendment’s Taking Clause

docs not require an explicit waiver of sovercign immunity

because the Constitutional Framers waived immunity when they

adopted the Fifth Amendment.

3

Only this Court can correct the Federal Circuit’s ruling

and, by so doing, preserve property owners’ constitutional nght

to seek just compensation.

ARGUMENT

I

CONSTITUTIONAL CLAIMS FOR

JUST COMPENSATION ARE NOT

SUBJECT TO SOVEREIGN IMMUNITY

A. There Is No Sovereign Immunity from

Fifth Amendment Takings Claims

The Federal Circuit held below that the statute of

limitations in 28 U.S.C. § 2501 is a jurisdictional requirement

for a suit in the Court of Federal Claims. John R. Sand, 457

F.3d at 1354 (citations omitted). In reaching its decision, the

Federal Circuit relied on cases holding that statutes of

limitations for causes of action against the United States are

attached by Congress as a condition of the government’s waiver

of sovereign immunity and, as such, must be strictly construed.

John R. Sand & Gravel Co. v. United States, 457 F.3d at 1354.

The flaw in the Federal Circuit’s holding is based on the

premise that the government is categorically immune from suit

for recovery of just compensation unless it consents to be sued.

However, “[that] premise cannot withstand scrutiny, for the Just

Compensation Clause of the Fifth Amendment works an

abrogation of the government’s immunity from suits resulting

from takings of private property.” Eric Grant, A Revolutionary

View of the Seventh Amendment and the Just Compensation

Clause, 91 Nw. U. L. Rev. 144 (1996) (noting the Supremacy

of the Just Compensation Clause); see also Eric Berger, The

Collision of the Takings and Sovereign Immunity Doctrines, 63

Wash. & Lee L. Rev. 493 (2006) (arguing that the Takings

Clause trumps sovereign immunity).

4

Although it may be the general principle that the United

States cannot be sued without its consent, this principle does

not apply to suits directly authorized by the Constitution,

including suits such as the one in this case to recover just

compensation for private property taken by the United States.

See Arnberg v. United States, 757 F.2d 971, 980 n.7 (9th Cir.

1984), cert. denied, 475 U.S. 1010 (1986) (“Actions brought

under the taking clause of the fifth amendment are, of course,

an exception to the rule that sovereign immunity is a bar to

damages against the United States for direct constitutional

violations.”); See Alder v. United States, 785 F.2d 1004, 1009

(Fed. Cir. 1986) (stating Fifth Amendment does not require a

specific waiver of sovereign immunity because the Constitution

has already achieved that popular right); 7.O.F.C., Inc. v.

United States, 683 F.2d 389, 393 (Ct. Cl. 1982) (“[T}he fifth

amendment is an express waiver of sovereign immunity.”); see

also Laurence H. Tribe, American Constitutional Law, Section

6-38, at 1272-73 (3d ed. 2000) (“A sovereign immunity defense

. .. may not be available against a takings challenge, because

the Court has suggested . . . that the Fifth Amendment’s

jakings Clause trumps state (as well as federal) sovereign

immunity.”); Hughes Communications Galaxy, Inc. v. United

States, 26 Cl. Ct. 123, 145 (1992), overruled on other grounds,

998 F.2d 953 (Fed. Cir. 1993), reh’g denied, (“the taking of

property by the sovereign for public use, though unquestionably

an act of sovereignty, does not, under our Constitution leave the

sovereign immune from having to pay compensation for the

taking”).

Indeed, this Court has recognized that the Court of Claims

has jurisdiction over takings claims. See United States v.

Causby, 328 U.S. 256, 267 (1946).

If there is a taking, the claim is “founded upon the

Constitution” and within the jurisdiction of the Court

of Claims to hear and determine.

Id. at 1068-69 (citing Hollister v. Benedict & Burnham Mfg.

Co., 113 U.S. 59, 67 (1885)); Hurley v. Kincaid, 285 U.S. 95,

104 (1932); Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18, 21

(1940); see also 28 U.S.C. § 1491(a)(1) (2004) (“The United

States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded []

upon the Constitution ... .”). Because this case involves a

takings claim, the jurisdiction of the Court of Claims was clear

and should not have been raised sua sponte.

Property owners enjoy the right to bring takings claims not

by the government’s consent, but by constitutional mandate.

The Fifth Amendment declares that “private property [shall not)

be taken for public use, without just compensation.” U.S.

Const. amend. V, cl. 3. Through the Fifth Amendment,

government has promised to pay just compensation if a taking

has occurred. Since the plain language of the Fifth Amendment

mandates just compensation for anything that amounts to a

taking, no immunity from the obligation to provide

compensation can be reconciled with the Fifth Amendment.

It is a proposition too plain to be contested that the

Just Compensation Clause of the Fifth Amendment

is too “repugnant” to sovereign immunity and

therefore abrogates the doctrine in suits brought in

response to takings of private property by the United

States. A taking without payment of just

compensation is a constitutional oxymoron. Faced

with proof that the government has effectuated such

a condition, a court must do one of two things if it is

to enforce the supreme law of the land. Either it

must oust the government and restore the property

owner to possession of his or her property, or it must

confirm the taking and exact just compensation from

the government. Between these alternatives, both of

6

which abrogate sovereign immunity, there is no

middle ground.

Grant, 91 Nw. U. L. Rev. at 200; see also Andalex Resources,

Inc. v. United States, 54 Fed. Cl. 563, 568 (2002) (noting it is

the “absolute and affirmative requirement” of the Takings

Clause that fully waives sovereign immunity under the Takings

Clause of the Fifth Amendment).

Sovereign immunity does not apply to a suit founded

under the Just Compensation Clause of the Fifth Amendment.

B. The Just Compensation Clause of the

Fifth Amendment Is Self-Executing

There is no sovereign immunity from the Taking Clause

since it is self-executing and automatically strips the

government of sovereign immunity. This Court has recognized

the “self-executing” character of the constitutional provision

with respect to compensation ....” First English Evangelical

Lutheran Church of Glendale v. County of L.A., 482 U.S. 304

(1987) (citing United States v. Clarke, 445 U.S. 253, 257

(1980)), (quoting 6 P. Nichols, Eminent Domain § 25.41 (3d

rev. ed. 1972)); see also Paul J. Heald & Michael L. Wells,

Remedies for the Misappropriation of Intellectual Property by

State and Municipal Governments Before and After Seminole

Tribe: The Eleventh Amendment and Other Immunity

Doctrines, 55 Wash. & Lee L. Rev. 849, 871-72 (1988) (Just

Compensation Clause creates an exception to normal sovereign

immunity rules); Vicki C. Jackson, Seductions of Coherence,

State Sovereign Immunity and the Denationalization of Federal

Law, 31 Rutgers LJ. 691, 724 n.126 (2000) (Constitution

provides direct remedy for takings in spite of sovereign

immunity); and Grant, 91 Nw. U. L. Rev. at 201 (noting if

remedy to compensation for taking is dictated by the

Constitution itself, its availability cannot depend on the good

graces of Congress.).

;

In First English, this Court explain- ‘ that it had long

recognized that claims for just compensation are grounded in

the Constitution itself:

The suits were based on the right to recover just

compensation for property taken by the United States

for public use in the exercise of its power of eminent

domain. That right was guaranteed by the

Constitution. The fact that condemnation

proceedings were not instituted and that the right

was asserted in suits by the owners did not change

the essential nature of the claim. The form of the

remedy did not qualify the right. It rested upon the

Fifth Amendment. Statutory recognition was not

necessary. A promise to pay was not necessary.

Such a promise was implied because of the duty to

pay imposed by the Amendment. The suits were

thus founded upon the Constitution of the United

States.

482 U.S. at 315 (emphasis in original) (citing Jacobs v. United

States, 290 U.S. 13 (1933)); see also United States v. Clarke,

445 U.S. 253, 257 (1980) (describing the Takings Clause as

“self-executing”).

Notably, the Solicitor General of the United States filed an

amicus brief in First English zealously attacking the above

proposition on the basis of sovereign immunity. The Solicitor’s

Argument was that the Fifth Amendment was not a remedial

provision. This argument was firmly rejected by this Court.

The Solicitor General urges that the prohibitory

nature of the Fifth Amendment, combined with

principles of sovereign immunity, establishes that the

Amendment itself is only a limitation on the power

of the Government to act, not a remedial provision.

The [inverse condemnation] cases cited in the text,

we think, refute 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.” ... Though arising in

various factual and jurisdictional settings, these cases

make clear that it is the Constitution that dictates the

‘remedy for interference with property rights

amounting to a taking.

482 U.S. at 316 n.9.

Because the Just Compensation Clause is self-executing,

the Constitution itself provides the requisite waiver of

sovereign immunity. See Hair v. United States, 350 F.3d 1253,

1257 (Fed. Cir. 2003) (“It is true that sovereign immunity does

not protect the government from a Fifth Amendment Takings

claim because the constitutional mandate is “self-executing.”’);

see also Cyprus Amax Coal Co. v. United States, 205 F.3d

1369, 1374-75 (Fed. Cir. 2000), cert. denied, 532 U.S. 1065

(2001) (a self-executing clause of the constitution, such as the

Takings Clause or the export clause, triggers the application of

the Tucker Act’s jurisdiction relating to claims founded under

the constitution without the need to comply with other statutes);

Leistiko v. Secretary of Army, 922 F. Supp. 66, 73 (N.D. Ohio

1996) (“The Just Compensation Clause, with its self-executing

language, waives sovereign immunity because it can fairly be

interpreted as mandating compensation by the

government... .”).

The constitutional nghts of property owners to bring

inverse condemnation actions such as the one in this case is

summed up best as follows:

[P]roperty owners enjoy the nght to bring inverse

condemnation actions not by the government’s

consent, but by constitutional command. The

holding of McElrath v. United States—when a

plaintiff avails himself of the “privilege” to sue the

government, “he must do so subject to the conditions

9

annexed by the government to the exercise of the

privilege’-—does not apply to suits for just

compensation. It is constitutionally mandated that

Congress open some court to hear claims against the

United States founded upon the Just Compensation

Clause; Congress cannot therefore require claimants

who invoke the jurisdiction of such court to

relinquish their constitutional rights.

Grant, 91 Nw. U. L. Rev. at 205.

The adoption of the Fifth Amendment by the Framers of

the Constitution was an explicit waiver of sovereign immunity.

The government cannot hide behind sovereign immunity to

avoid payment of just compensation if a taking has occurred.

If a taking has occurred, the Constitution unequivocally

demands compensation.

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SOVEREIGN IMMUNITY IS

NOT A LEGITIMATE BASIS

JUSTIFYING A STRICT STATUTE

OF LIMITATIONS IN TAKINGS CASES

Because constitutional! claims for just compensation are

not subject to sovereign immunity, the Federal Circuit’s sole

reliance on sovereign immunity as the basis for its strict

construction of the statute of limitations in 28 U.S.C. § 2501 as

jurisdictional in this case cannot stand.

The Federal Circuit’s decision rested entirely upon case

law stating that “statute of limitations for causes of action

against the United States, being conditions of the waiver of

sovereign immunity, are jurisdictional in nature.” Martinez v.

United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc),

cert. denied, 540 U.S. 1177 (2004); see also Caguas Cent. Fed.

Sav. Bank v. United States, 215 F.3d 1304, 1310 (Fed. Cir.

2000), cert. denied, 531 U.S. 1070 (2001) (“In the Court of

10

Federal Claims, the statute of limitations is jurisdictional,

because filing within the six-year period was a condition of the

waiver of sovereign immunity in the Tucker Act, 28 U.S.C. §

1491(a)(1).”). However, none of the cases relied upon by the

Federal Circuit (or the government in this case) involve takings

claims under the Fifth Amendment. Thus, the issue of whether

the government had conditioned the waiver of sovereign

immunity on compliance with the applicable time deadlines was

relevant in those previous decisions. In contrast, sovereign

immunity has no bearing on claims brought under the Fifth

Amendment. Thus, it should not be a basis for applying a strict

construction of the statute of limitations in 28 U.S.C. § 2501.

In cases involving the Just Compensation Clause of the

Fifth Amendment, 28 U.S.C. § 2501 does not create a

jurisdictional] condition when a takings claim is involved. It is

merely a statute of limitations that can be waived by the parties

as it was in this case by the government. See Irwin v. Dep't of

Veterans Affairs, 498 U.S. 89, 94 (1990) (statutes of limitations

on suits against the government should be treated “in the same

way” as statutes of limitations in private suits). As a statute of

limitations, it should have been raised as a defense. See, e.g.,

Rule of the Court of Federal Claims 8(c) (the statute of

limitations is an affirmative defense).

The raising of the statutory bar to a remedy does not,

as such, deprive the court of jurisdiction to hear the

cause in the first instance. Indeed, the court could

not adjudicate the question of the proper application

of the statute if it did not have subject matter

jurisdiction over the claim.

Henke v. United States, 60 F.3d 795, 798 n.3 (Fed. Cir. 1995).

It is indisputable that the Court of Federal Claims had

jurisdiction over the parties and the subject matter in this case

since it involved a takings claim under the Fifth Amendment.

See Causby, 328 U.S. at 267 (“If there is taking, the claim is

11

‘founded upon the Constitution’ and within the jurisdiction of

the Court of Claims to hear and determine.”); see also

28 U.S.C. § 1491(a)(1) (providing the Court of Federal Claims

with jurisdiction over takings claims brought against the United

States).

Since the statute of limitations in Section 2501 is not a

jurisdictional requirement in this case, the Federal Circuit erred

by considering the issue sua sponte.

-~—

CONCLUSION

By holding that sovereign immunity considerations

warrant a strict view of the statute of limitations for Petitioner’s

taking claim, the court below has wrongly implied that claims

under the Fifth Amendment are subject to sovereign immunity.

Amicus respectfully urges the Court to reject the faulty premise

that sovereign immunity supports a strict statute of limitations

for Tucker Act claims arising under the Fifth Amendment and

reverse the judgment of the Federal Circuit.

DATED: August, 2007.

Respectfully submitted,

DIANA M. KIRCHHEIM JAMES S. BURLING

Counsel of Record Pacific Legal Foundation

Pacific Legal Foundation 3900 Lennane Drive, Suite 200

10940 NE 33rd Place, Suite 210 Sacramento, California 95834

Bellevue, Washington 98004 Telephone: (916) 419-7111

Telephone: (425) 576-0484 Facsumile: (916) 419-7747

Facsimile: (425) 576-9565

Counsel for Amicus Curiae Pacific Legal Foundation