In the Supreme Court of the United States
St. Bernard Parish Government, Et Al., Petitioners, v. United States, Respondent.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit.
Brief for Amici Curiae Cato Institute, National Federation of Independent Business Small Business Legal Center, Reason Foundation, Southeastern Legal Foundation, Property Rights Foundation of America, National Association of Reversionary Property Owners, Owners’ Counsel of America, National Association of Home Builders, and Professors James W. Ely, Jr., Shelley Ross Saxer, and Robert H. Thomas In Support of Petitioners
This Court should grant the landowners’ petition for certiorari because Judge Dyk’s opinion for the Federal Circuit panel adopted two novel exclusionary rules that are contrary to this Court’s Takings Clause jurisprudence. See Arkansas Game, 568 U.S. at 34 (“No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.”). Judge Dyk’s opinion improperly side-stepped this Court’s unanimous holding in Arkansas Game.
The Federal Circuit’s action versus inaction dichotomy is also contrary to the Federal Circuit’s own precedent and is contrary to how state courts apply the Takings Clause in similar flooding cases.
This Court should also grant certiorari because the Federal Circuit is a court of national jurisdiction hearing every appeal of every inverse condemnation claim against the United States.
The Federal Circuit’s decision undermines existing property rights and crafts a new and novel paradigm (the supposed action versus inaction analysis) and unsettles established Takings Clause jurisprudence nationally.