Real Estate & Property Law

Considered In Today's SCOTUS Conference: What Triggers The Takings Statute Of Limitations?

By Robert Thomas (inversecondemnation.com)

Today, the U.S. Supreme Court is considering our cert petition during the Court's "long conference."

This is the case focusing on the interplay between Williamson County's "final decision" ripeness rule and the "case and controversy" injury-in-fact standing requirement, and asks: if the government makes its final decision, but the plaintiff isn't injured until later, has there been an actionable taking? 

Often, the date on which the government ripens a takings claim by making the final decision to apply the regulation to the plaintiff's property, and the date on which the plaintiff's property rights are actually affected are the same. But here, the two key events happened on different dates. The feds allege they made their final decision to jettison in the GM bankruptcy the plaintiffs' tort and related claims on July 1, 2009. The Federal Circuit accepted the government's assertion that final decision occurred when it uploaded its proposed order to the bankruptcy court.  The Federal Circuit held that this was the date that plaintiffs' property was taken,and thus the date that the statute of limitations clock started ticking.

The Federal Circuit, however, rejected the plaintiffs' assertion that their property rights were not actually injured in a concrete way until July 10, 2010, and even though a taking may be prudentially ripe under Williamson County, federal courts also require a plaintiff with standing. That is, a party who has suffered a concrete injury-in-fact. 

Here is the Question Presented:

The Federal Circuit concluded that ?[i]n the case of a regulatory taking, ... the taking may occur before the effect of the regulatory action is felt.? It held that the  Government?s ?final decision??its submission of a proposed order to the bankruptcy court for approval?was an actionable taking. Consequently, the statute of limitations clock started ticking even ?before ... the actual damage to the property interest [was] entirely determinable.? The question presented is:

Does the Tucker Act?s statute of limitations for a regulatory takings claim accrue when the Government makes a final decision, or when the plaintiff?s property rights are actually injured-in-fact as a result of that decision?

Here are all of the set of cert-stage briefs.

• Cert petition
• USA's BIO
• Petitioners' Reply
• Center for Auto Safety's Amicus

Stay tuned here, or follow along on the Court's docket. We'll let you know if we strike lightning.

Reply to Brief in Opposition, Campbell v. United States, No. 19-1252 (Aug. 25, 2020)

Motion to File as Amicus Curiae and Brief of Amicus Curiae Center for Auto Safety, Campbell v. United State...

Full post as published by inversecondemnation on September 29, 2020 (boomark / email).