Professional Documents
Culture Documents
17-712
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In The
Supreme Court of the United States
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QUESTIONS PRESENTED
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................................. i
TABLE OF CONTENTS ........................................ ii
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICI CURIAE ........................... 1
SUMMARY OF ARGUMENT ................................ 3
ARGUMENT ........................................................... 5
I. Property owners are entitled to a jury trial
when seeking compensation for a taking .... 5
II. The doctrine of sovereign immunity cannot
preclude citizens from invoking Seventh
Amendment rights ....................................... 6
A. This Court has never definitively ruled
that the United States is immune from
the Seventh Amendment ....................... 8
B. Government cannot condition the right to
sue on waiver of constitutional Rights ... 9
C. The Governments theory of sovereign
immunity contravenes history .............. 10
CONCLUSION ....................................................... 15
iii
TABLE OF AUTHORITIES
Page
CASES
Army Corps of Engrs v. Hawkes Co., 136 S. Ct.
1807 (2016) ................................................................2
Brott v. United States, 858 F.3d 425 (6th Cir.
2017) ...................................................................... 7, 9
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) .......10
City of Monterey v. Del Monte Dunes, 526 U.S.
687 (1999) .......................................................... 4, 5, 6
Creppel v. United States, 30 Fed. Cl. 323 (1994) ..........5
Curtis v. Loether, 415 U.S. 189 (1974) ..........................5
Dolan v. City of Tigard, 512 U.S. 374 (1994) ................2
Feltner v. Columbia Pictures Television, Inc., 523
U.S. 340 (1998) ..........................................................5
Frost & Frost Trucking Co. v. R.R. Commn of
Cal., 271 U.S. 583 (1926) .........................................10
Koontz v. St. Johns Water Mgmt. Dist., 133 S. Ct.
2586 (2013) ..............................................................10
Lehman v. Nakshian, 453 U.S. 156 (1981) ...................8
Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992) ........................................................2
Malone v. Bowdoin, 369 U.S. 643 (1962) ......................9
Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) .........................................................................9
Martin v. Hunters Lessee, 14 U.S. (1 Wheat) 304
(1816) .........................................................................7
iv
RULES
Sup. Ct. R. 37.2(a) .........................................................1
Sup. Ct. R. 37.6 .............................................................1
OTHER AUTHORITIES
Akhil Reed Amar, The Bill of Rights as a Consti-
tution, 100 Yale L.J. 1131 (1991) ............................12
Eric Grant, A Revolutionary View of the Seventh
Amendment and the Just Compensation Clause,
91 Nw. U. L. Rev. 144 (1996).............................. 12, 13
v
1
All parties have consented to the filing of this brief in let-
ters on file with the Clerk of Court, and the parties were notified
of amici curiaes intention to file this brief at least 10 days prior
to the filing of this brief. See Sup. Ct. R. 37.2(a). No counsel for a
party has authored this brief in whole or in part, and no person
other than amici curiae, their members, and their counsel has
made a monetary contribution to the preparation or submission
of this brief. See Sup. Ct. R. 37.6.
2
SUMMARY OF ARGUMENT
This Court has made clear that the Seventh
Amendment protects the right of citizens to have a jury
trial in any case where a court is called upon to deter-
mine ones legal rights because such cases would
have been heard in a court of law (as opposed to in eq-
uity or admiralty) in 1791. Under this test, the Court
holds that a landowner is entitled to a jury trial in an
action seeking to force the government to pay just
4
2
This brief focuses solely on the Seventh Amendment issue
presented because of its broad doctrinal importance. But, amici
also share Petitioners concern over the Tucker Acts requirement
to litigate takings claims of more than $10,000 in the Court of
Federal Claims because this requirement presents serious practi-
cal problems for litigants. See, e.g., James S. Burling and Luke A.
Wake, American Law Institute-American Bar Association: Emi-
nent Domain and Land Valuation Litigation, Takings and Torts:
The Role of Intention and Foreseeability in Assessing Takings
Damages, February 19, 2011, Coral Gables, FL (explaining that
the Tucker Act often forces landowners into a dilemma: [T]akings
claims may be filed only in the Court of Federal Claims. However,
a takings claim cannot be filed in the Court of Federal Claims if
there is another action pending arising out of the same facts and
5
ARGUMENT3
I. Property owners are entitled to a jury trial
when seeking compensation for a taking.
The Seventh Amendment right to a jury trial at-
taches in any suit raising claims analogous to actions
that would have been heard in a court of law in 1791.
Pernell v. Southall Realty, 416 U.S. 363, 374-75 (1974).
This Court has made clear that any suit seeking a
determination of legal rights should qualify. Feltner v.
Columbia Pictures Television, Inc., 523 U.S. 340, 348
(1998). Under that standard, Del Monte Dunes held
that a 1983 suit seeking legal relief [for vindication
of constitutional rights] is an action at law within the
meaning of the Seventh Amendment. 526 U.S. at 709.
This is because a takings claim seeks compensation as
a legal remedy. Id. (citing Curtis v. Loether, 415 U.S.
189, 195-96 (1974)) (concluding that the Seventh Amend-
ments guarantee extends to any claim sound[ing] ba-
sically in tort). That rationale should apply equally in
the present case.
Petitioners seek a legal remedy (i.e., money dam-
ages) for the Governments violation of their Fifth
Amendment rights. As in Del Monte Dunes, their claim
sounds basically in tort. See Del Monte Dunes, 526 U.S.
4
If anything, there would seem to have been a greater case
for sovereign immunity for the political subdivision of a state be-
cause of the Eleventh Amendment. But, nothing in the Eleventh
Amendment altered the relationship between citizen and the fed-
eral government. The Amendment left undisturbed the notion
that ultimate sovereignty rests in the People. See Yick Wo v. Hop-
kins, 118 U.S. 356, 370 (1886) (emphasizing that sovereign pow-
ers are delegated to the agencies of government, [but that]
sovereignty itself remains with the people).
5
This expansive theory of sovereign immunity improperly
assumes that the United States may act outside or above
the law. Indeed, the Sixth Circuits decision enables the United
States to ignore express constitutional commands and prohibi-
tions. Brott v. United States, 858 F.3d 425, 430-31 (6th Cir. 2017)
(holding that suits against the United States are premised on a
waiver of sovereign immunity . . . and that sovereign immunity
allows an absolute privilege even against suits seeking vindica-
tion of constitutionally guaranteed rights).
8
6
Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
(affirming the English rule that where there is a legal right,
there is also a legal remedy); St. Joseph Stock Yards Co. v. United
States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring) (same).
10
7
It should also be irrelevant whether the King of England
could be sued. To be sure, sovereignty devolved on the people
upon independence. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471
(1793). And the American people only assented to the creation of
a federal government on the terms and conditions set forth in the
ratified Constitution of 1787, and subsequent amendments. As
such, the doctrine of federal sovereign immunity is alien to our
constitutional system. Id. at 471-72 (observing that the concept of
11
CONCLUSION
For the above reasons and those stated in the pe-
tition, this Court should grant a writ of certiorari.
Respectfully submitted,
KIMBERLY S. HERMANN KAREN R. HARNED
SOUTHEASTERN LEGAL Counsel of Record
FOUNDATION LUKE A. WAKE
2255 Sewell Mill Rd., NFIB SMALL BUSINESS
Ste. 320 LEGAL CENTER
Marietta, GA 30062 1201 F St., NW, Ste. 200
ILYA SHAPRIO Washington, D.C. 20004
(202) 314-2061
TREVOR BURRUS
karen.harned@nfib.org
CATO INSTITUTE
1000 Massachusetts C. THOMAS LUDDEN
Ave. NW LIPSON, NEILSON, COKE,
Washington, D.C. 20001 SELTZER & GARIN P.C.
DEVALA A. JANARDAN 3910 Telegraph Rd.,
Ste. 200
THOMAS J. WARD
Bloomfield Hills, MI 48302
NATIONAL ASSOCIATION
OF HOME BUILDERS
1201 15th St., NW
Washington, D.C. 20005
December 14, 2017 Counsel for Amici Curiae