Case 1:15-cv-00038-JTN Doc #11 Filed 03/23/15 Page 1 of 5 Page ID#456
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN BROTT, et al.,
Plaintiffs,
v.
Case No. 1:15CV38
UNITED STATES OF AMERICA,
Hon. Janet T. Neff
Defendant.
____________________________________/
________________________________________________________________________
LANDOWNERS’ RESPONSE TO THE GOVERNMENT’S REQUEST
FOR A PRE-DISPOSITIVE MOTION CONFERENCE
________________________________________________________________________
Mark F. (Thor) Hearne, II (P40231)
Meghan S. Largent
Lindsay S.C. Brinton
Stephen S. Davis
ARENT FOX LLP
112 South Hanley Road, Suite 200
Clayton, MO 63105
Phone: (314) 296-4000
Fax: (202) 857-6395
[email protected]
1717 K Street, NW
Washington, DC 20036-5342
Phone: (202) 857-6000
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BACKGROUND
The twenty Michigan owners bringing this case held unencumbered possession of land
under an abandoned railroad right-of-way easement. See Michigan Dept. of Natural Resources
v. Carmody-Lahti Real Estate, 699 N.W.2d 272, 288-89 (Mich. 2005) (when railroad conveyed
easement for snowmobile trail the easement terminated and the owners held unencumbered right
to possess the land.); see also Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct.
1257, 1265 (2014) (“if the beneficiary of the easement abandons it, the easement disappears, and
the landowner resumes his full and unencumbered interest in the land”).
Congress granted the Court of Federal Claims (CFC) exclusive jurisdiction over “any
claim against the United States founded…upon the Constitution…” greater than $10,000. 28
U.S.C. §1491(a)(1) (Tucker Act). The CFC is not an Article III court. Congress also provided
owners bringing a Fifth Amendment claim against the government are denied any right to trial
by jury. 28 U.S.C. §2402.
This statutory scheme, denying owners bringing a Fifth Amendment taking claim access
to an Article III court and denying owners their Seventh Amendment right to trial by jury, is not
constitutional. So these Michigan landowners brought this action in this Court seeking redress
and asking this Article III court to vindicate their Fifth Amendment right to compensation and
their Seventh Amendment right to trial by jury.
The owners also brought a Declaratory
Judgment action asking this Court to declare unconstitutional those Tucker Act provisions
denying them right to trial by jury and denying access to an Article III court. The government
responded with a motion to dismiss under Rule 12(b)(1) and (6) claiming this Court lacks
jurisdiction because of the Tucker Act.
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SUBSTANTIVE REASONS WHY THE GOVERNMENT’S
MOTION TO DISMISS SHOULD BE DENIED
The government says the Tucker Act “vests exclusive subject matter over constitutional
claims exceeding $10,000 with the [CFC].” Gov. Mot. p. 2. We agree the Tucker Act vests
exclusive jurisdiction over these Michigan owners’ Fifth Amendment taking claims in the CFC –
which is a non-Article III tribunal. But the question is not whether Congress has relegated
adjudication of these owners’ Fifth Amendment right to adjudication before a non-Article III
tribunal. The question is whether Congress can constitutionally deny citizens right to an Article
III court to vindicate their Fifth Amendment right to be justly compensated. The answer is “no”
– Congress cannot take private property and then deny the owner access to an Article III court to
adjudicate the owner’s constitutional right to just compensation.
The government says, “there is a right to a jury trial against the United States only if a
statue or rule so provides.” Id. at 3. The government also says Congress has “absolute power to
prohibit suit against the government and prescribe how the government will consent to be sued.”
In the government’s view, the Fifth and Seventh Amendment guarantees in our Constitution are
only valid to the extent Congress deigns to waive sovereign immunity.
Id.
Under the
government’s view Congress possesses the “absolute power” to render these constitutional rights
a nullity.
But these Michigan owners’ right to just compensation and a jury trial guaranteed by the
Fifth and Seventh Amendments arise directly from the Constitution not some statute Congress
passed.
Congress has no authority to abrogate or limit a citizen’s ability to vindicate
fundamental constitutional rights. An owner’s Fifth Amendment right to be justly compensated
when the federal government takes the owner’s land does not require any waiver of sovereign
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immunity. The owner’s right to compensation arises directly from the Constitution itself and is
self-executing.1 The Tucker Act cannot abrogate this right. The Constitution is the supreme law
of the land and, when a statute is inconsistent with the Constitution, the statute is a nullity. Chief
Justice Marshall held,
[i]t is emphatically the province and duty of [an Article III court] to say what the
law is. *** If then the courts are to regard the constitution; and the constitution is
superior to any ordinary act of the legislature; the constitution, and not such
ordinary act, must govern the case to which they both apply.
Marbury v. Madison,
5 U.S. 137, 177-78 (1803).
Federal Circuit Judge Taranto recently explained the Tucker Act may raise serious
“constitutional questions ... [if it] precludes such relief … it might be that the combination [of
Tucker Act provisions] should be held unconstitutional as applied.” Ministerio Roca Solida v.
United States, 2015 WL 795293, *6, *12 (Fed. Cir. Feb. 26, 2015).
These Michigan landowners raise these serious constitutional concerns in this Court.
This Article III court is the forum in which these important constitutional issues are properly
presented and decided. Were it granted, the government’s motion to dismiss would deny these
Michigan citizens access to an Article III court possessing the authority to vindicate these
fundamental rights our Constitution guarantees these Michigan owners.
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“As soon as private property has been taken, whether through formal condemnation
proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a
constitutional violation, and ‘the self-executing character of the constitutional provision with
respect to compensation’ is triggered. [The Supreme Court] has consistently recognized that the
just compensation requirement in the Fifth Amendment is not precatory: once there is a ‘taking’
compensation must be awarded.” San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S.
621, 654 (1981) (internal citations and quotations omitted) (emphasis added) (Brennan, J.,
dissenting on other grounds).
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Respectfully submitted,
ARENT FOX LLP
/s/ Mark F. (Thor) Hearne, II
MARK F. (THOR) HEARNE, II, No. P40231
Meghan S. Largent
Lindsay S.C. Brinton
Stephen S. Davis
Arent Fox LLP
112 S. Hanley Road, Suite 200
Clayton, MO 63105
(314) 296-4000
(202) 857-6395
[email protected]
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was sent via the Court’s electronic filing
system on March 23, 2015, to the following:
Nicole Lynn Mazzocco
U.S. Attorney’s Office (Grand Rapids)
The Law Building
330 Ionia Avenue, NW
P.O. Box 208
Grand Rapids, MI 49501-0208
Romney S. Phillpott , III
U.S. Department of Justice
Environment & Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington, DC 20044-7611
/s/ Mark F. (Thor) Hearne, II
MARK F. (THOR) HEARNE, II
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