Filed by the Reason Foundation, Cato Institute, National Federation of Independent Business, and Center for Constitutional Jurisprudence:
Amici, described in Appendix A, are advocates for individual freedom who believe that the right to keep and control one’s own property is among the most fundamental rights protected by the Constitution, and that government should not make property owners suffer needless burdens in order to vindicate their rights.
This case involves one such burden. If the Ninth Circuit’s decision is permitted to stand, property owners who have been wrongfully ordered to pay the Federal Government money—in proceedings the government itself initiated—will not at that time be permitted to invoke the Takings Clause in their defense. Instead, after litigating all other constitutional and statutory defenses, they will have to hand over their money to the government. They will then have to go to a different forum, the Court of Federal Claims, and file a separate suit against the government under the Tucker Act just to make their takings claims “ripe.” Only then will a court decide whether the monies the property owners had to pay were unconstitutional takings. And if they were, only then will the property owners receive their money back.
This Rube Goldberg approach to adjudicating takings claims serves no valid purpose. And for that reason, a plurality of this Court squarely rejected it in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). The plurality—consisting of all Justices who reached the issue—rightly recognized that having to jump through such hoops to assert a takings claim “would entail an utterly pointless set of activities.” Id. at 521 (quotation omitted). Five courts of appeals—the First, Second, Fourth, Fifth, and D.C. Circuits—have all agreed. Pet. 16-24. Only the Ninth Circuit cannot abide this result.
Certiorari is needed not only to resolve that conflict, but also to ensure that this Court’s ripeness doctrine does not impose unnecessary burdens on property owners—an issue of significant national concern.
In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-196 (1985), this Court held that a government taking of real or tangible personal property is not ripe to challenge until a property owner has sought monetary compensation for the property that has been taken. In federal cases, that means a suit for damages in the Court of Federal Claims under the Tucker Act. Id. at 195. But where a taking involves money rather than real or tangible property, Williamson County’s ripeness rule makes no sense—the government does not take money, only to give it right back in the form of “compensation.” The plurality in Apfel thus recognized an exception for takings of money. And as we explain in Part I, certiorari should be granted to prevent Williamson County’s ripeness rule from being expanded beyond its original scope.
As we explain in Part II, however, Williamson County itself has not stood the test of time. Whether a taking involves money or some other tangible property, property owners should be allowed to challenge all uncompensated takings immediately after they occur—without having to pursue unpromised compensation first. The time, expense, and uncertainty of trying to recover compensation after-the-fact is burdensome to property owners across the country. And Williamson County’s premise that compensation need not be paid at the time a taking occurs is both contrary to the text and history of the Takings Clause and inconsistent with this Court’s treatment of similar deprivations under the Due Process Clause. This case presents an opportunity to reconsider Williamson County, and to return to a much more defensible rule—dating back to Magna Carta—that government takings of private property must be accompanied by “immediate payment.” Magna Carta, Cl. 28 (1215).