Judicial Takings of Property Rights

Those of you who like to follow the development of the legal theory of “judicial taking of property,” since that theory was discussed in the plurality opinion in Stop the Beach Ren. v. Fla. Dept. of Env. Prot., 130 S. Ct. 2592, 560 U.S. 702, 177 L. Ed. 2d 184 (2010) will be interested in yesterday’s decision in Petro-Hunt, L.L.C. v. United States [Link].   This appears to be only the fourth time that the Federal Circuit has addressed the “judicial taking of property” cause of action since Stop the Beach issued.

In a footnote in Petro-Hunt, Judge Clevenger notes for the court:

In Smith v. United States, 709 F.3d 1114, 1116–17 (Fed. Cir. 2013), this court noted that “judicial action could constitute a taking of property,” and that the Supreme Court applied the theory of a judicial taking in Stop the Beach. But the Court’s decision in Stop the Beach that a cause of action for a judicial taking exists is a plurality decision, and therefore not a binding judgment. Stop the Beach, 560 U.S. at 715–19 (Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, concluded that a court may effect a taking. There were two separate opinions concurring in the judgment but not in the plurality’s views on judicial takings—one by Justice Kennedy, joined by Justice Sotomayor, the other by Justice Breyer, joined by Justice Ginsburg. Justice Stevens did not participate.)

I always think of “judicial takings” when during an oral argument a Federal Circuit judge comments with respect to a 35 U.S.C. §101 argument:  “That may have been true when the patent issued; but, the Supreme Court changed the law of patent eligibility with Alice.”

In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking. To be sure, the manner of state action may matter: Condemnation by eminent domain, for example, is always a taking, while a legislative, executive, or judicial restriction of property use may or may not be, depending on its nature and extent. But the particular state actor is irrelevant. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. “[A] State, by ipse dixit, may not transform private property into public property without compensation.” Ibid.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, ___ U.S. ___, 130 S.Ct. 2592, 2602 (2010).

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