Article by William J. Shapiro
The United States Supreme Court’s fractured decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection raised the prospect of using the Fifth Amendment Takings Clause to limit state supreme court decisions. The 2010 decision generated significant interest from legal scholars, most of whom have focused on the constitutional question of whether the Fifth Amendment is meant to apply to state supreme courts. Less attention has been paid to the jurisdictional and practical concerns associated with federal judicial takings claims—Fifth Amendment challenges to Article III court decisions filed in the United States in the Court of Federal Claims. The question is important because if such claims were allowed, they would convert the Court of Federal Claims, an Article I court of limited jurisdiction, into a super-appellate court with review authority over thousands of Article III court decisions.
In 2018, the Supreme Court denied a petition for certiorari in Petro-Hunt, L.L.C. v. United States, one of the first post-Stop the Beach Renourishment cases raising a federal judicial takings claim in the Court of Federal Claims. Resolution of Petro-Hunt provides an excellent opportunity to assess the viability of such claims.
The Article, authored by the lead government counsel in the Petro-Hunt litigation, contextualizes that case within the Court of Federal Claim’s and Federal Circuit’s early assessments of judicial takings claims and the Stop the Beach Renourishment decision. The Article then uses the Petro-Hunt case to highlight jurisdictional and practical problems inherent in pursuing any federal judicial takings claim in the Court of Federal Claims.
About the Author
William J. Shapiro: Senior Attorney United States Department of Justice, Environment and Natural Resources Division Sacramento, CA
Citation
94 Tul. L. Rev. 99 (2019)