Federal Takings FAQs

Takings FAQs: The Top Seven Questions Asked About Filing a Federal Taking Case

We’ve seen it time and time again. Trusted, competent local counsel has a client who experiences a taking at the hands of the federal government. What should counsel do? Handle the matter themselves, or contact an experience eminent domain or takings attorney?

The fact is that federal takings issues are unique matters that are handled in a specialized court in Washington, DC with its own rules of civil procedure. In our opinion, it’s best to get it right the first time.

Based on our decades of experience handling federal takings claims, we have assembled these FAQs of Federal Takings – the seven most frequently asked questions we are asked by local counsel when a takings matter arises. Takings law is spelled out in plain English here, below, in our Takings FAQ video.

Need more information than this? Visit our Takings Law Primer: Your Guide on How to Protect Your Rights in Regulatory Takings and Inverse Condemnation Actions. Or, feel free to contact Roger Marzulla and Nancie Marzulla if you have further questions.

1. Where should I file my federal taking case?

There is only one federal court that has jurisdiction to hear taking claims against the federal government, challenging federal actions (physical or regulatory) or legislation targeting specific property uses, when the relief sought is just compensation (payment of money damages) over $10,000. Based in Washington, DC, the U.S. Court of Federal Claims is a specialized court that has exclusive, national jurisdiction to hear taking claims, along with other money claims against the United States.

As Professor Gregory Sisk, who is the Laghi Distinguished Chair in Law at the University of St. Thomas School of Law in Minnesota, wrote in his book, Litigation with the Federal Government, the Court’s jurisdiction is defined by the Tucker Act (28 U.S.C. §1492):

The Tucker Act is a jurisdictional statute that . . . waives the Federal Government’s sovereign immunity for monetary claims “founded either upon the Constitution, or upon any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”

The Court of Federal Claims has its own separate Rules of Court, and attorneys must be specially admitted to appear before it. Since the federal government is the only defendant in this Court, all cases are defended by the U.S. Department of Justice. Appeals go to the United States Court of Appeals for the Federal Circuit, which is also located in Washington, D.C.

The Court’s jurisdiction includes not only taking cases, but contract claims, bid protests, tribal breach of trust cases, civilian employee or military backpay cases, tax refund suits, and claims against the United States for patent and copyright violations. The Court also has jurisdiction over vaccine claims, which are handled by the Court’s Special Masters.

2. What is the difference between litigation in federal district court and the U.S. Court of Federal Claims?

First, there are 94 U.S. districts, at least one in every state, in four territories and the District of Columbia. U.S. district judges have federal question and diversity jurisdiction over cases involving private parties as well as government agencies. They try both civil and criminal cases, with or without a jury. District courts have jurisdiction to grant equitable remedies like injunctions or declaratory relief, monetary judgments between private parties (but almost never against the federal government), and can sentence convicted criminals to prison. Each district also includes a U.S. bankruptcy court as a unit of the district court.

In contrast, there is only one U.S. Court of Federal Claims, located in Washington, D.C., which has nationwide jurisdiction over monetary claims against the United States government arising from contract, statute, regulation or the Constitution. Monetary judgments rendered by the Court of Federal Claims are paid out of the Judgment Fund, administered by the U.S. Treasury. Because the United States government is the only defendant in this Court, all cases are defended by the U.S. Justice Department. The Court of Federal Claims does not entertain suits between private parties, criminal cases, claims for injunctive or declaratory relief (except bid protests), or tort cases. There are no summonses and no juries. Appeals go to the Federal Circuit Court of Appeals, located in the same National Courts Building as the Court of Federal Claims.

According to Stephen G. Larson, former U.S. District Court judge and co-founder of Larson O’Brien LLP, “Having served as a federal district court judge, and litigated in the U.S. Court of Federal Claims, I can say without hesitation that learning about the rules and practices of the Court of Federal Claims is essential to success, and working with experienced counsel is a must.”

3. Can a plaintiff challenge the wrongfulness or legitimacy of the government’s actions in a taking case in the U.S. Court of Federal Claims?

No. As the Supreme Court has repeatedly held, the Fifth Amendment’s just compensation clause does not prohibit a taking by the federal government; but it does guarantee payment whenever the government takes private property for public use. As the Supreme Court stated in Armstrong v. United States: “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The U.S. Court of Federal Claims has exclusive jurisdiction to award just compensation for federal government takings. This means that if someone wants to challenge an agency action, such as the validity of a permit denial that deprives the property owner of beneficial and productive use of the property, the aggrieved party must choose whether to challenge the validity of the action in federal district court or sue for just compensation in the Court of Federal Claims.

A case filed in the wrong court may be dismissed or it may be transferred to the correct court. But a property owner who challenges the validity of government action in district court cannot then file in the Court of Federal Claims so long as their district court action is pending. Together with the Court of Federal Claims’s six-year statute of limitations, which the Supreme Court has held to be jurisdictional, there are pitfalls aplenty for property owners who challenge federal government takings.

As well-known New York automobile dealer attorney Leonard Bellavia of Bellavia Blatt, who has been involved in litigating a complex taking case in the Court of Federal Claims, points out: “These and other procedural rules point out how specialized takings litigation is in the Court of Federal Claims. Strategic decisions about where to file and what to challenge can make or break a taking case.”

4. Expert witnesses can be expensive. How important are they in taking litigation?

Judging by tv shows and movies, litigation is all about fact witnesses getting on the witness stand and telling their stories, after which the judge or jury will issue a ruling. But in reality, modern litigation—especially litigation involving a taking claim against the federal government—depends heavily on expert witness testimony.

Noted eminent domain attorney Robert Thomas of Damon Key Leong Kupchak Hastert, LC, author of the Inverse Condemnation blog, explains that the selection of expert witnesses in a taking case is a crucial component of preparing a taking case for trial:

“One of a most essential tasks for a property owner’s attorney is the selection of who might be the most important witness in a case: the professional tasked with understanding the just compensation owed for a taking. These experts – most commonly appraisers and economists – must be evaluated with great care, and with a thorough understanding of the case and the court, because most often, an owner’s entire case for compensation is built on the appraiser’s or the economists’ evaluation.”

5. How likely is it that the Department of Justice will settle the case?

Although most plaintiffs would prefer to settle their claims on fair and reasonable terms, the Department of Justice rarely settles federal taking cases. This is often because there are legal issues at stake that the Justice Department or the federal agency it represents wants to seek a legal ruling on. In addition, the settlement approval process at the Justice Department is cumbersome, and it can be difficult to obtain all the required approvals by the leadership at the Department.

As former President of the Court of Federal Claims Bar Association and Managing Partner of Maglio, Christopher, and Toale Law, Altom Maglio, explains: “DOJ is the largest law firm in the world with you as a taxpayer fronting their fees and costs – maybe that’s why they’re not interested in settling. . . .”

6. How long does an appeal to the Federal Circuit take?

Appeals from the Court of Federal Claims go to the U.S. Court of Appeals for the Federal Circuit, and generally take about a year from the filing of the notice of appeal to issuance of a decision by the Court. The Federal Circuit resides in the same building as the Court of Federal Claims, in Washington, D.C. facing Lafayette Square across from the White House. 

The United States Court of Appeals for the Federal Circuit was created by Congress in 1982 to hear appeals of claims against the federal government formerly heard by the Court of Claims. The Federal Circuit also has jurisdiction over patent appeals from across the country, as well as appeals from the Court of International Trade, International Trade Commission, and the Merit Systems Protection Board. 

“The Federal Circuit was created under Article III of the Constitution, and is authorized to have twelve active judges, appointed by the President and confirmed by the Senate, with lifetime tenure, ” explained former Chief Judge of the Federal Circuit, Randall Rader. “Federal Circuit judges sit in three-judge panels except in the rare instances when the majority of active judges agree to grant a hearing or rehearing en banc.”

7. Can I recover attorney’s fees incurred in a U.S. Court of Federal Claims suit?

A successful plaintiff can often receive an award of attorney’s fees, expert witness expenses, and other costs of suit in the United States Court of Federal Claims under a variety of statutes. As Judge Charles Lettow of the Court of Federal Claims recently explained in his decision awarding fees, Fastship, LLC v. United States:

The very point of fee-shifting statutes is to permit small entities, i.e., ones that could not normally survive the gauntlet of litigation, to assert their rights. . . . Suing the United States government is a daunting task. It is an opponent with vast resources and a legion of highly skilled attorneys at its disposal. Even with the assistance of shifted or contingent fees, claims may fall into the gray area of uncertainty and cannot attract counsel.

In a taking case, the successful plaintiff is entitled to recover against the United States reasonable attorneys’ fees, expert and appraiser expenses under the Uniform Relocation Act, 42 U.S.C. § 4654, in addition to just compensation for the real or personal property taken by the government. Similarly, where the government is held liable for infringing the plaintiff’s patent, the plaintiff may recover (in addition to damages) reasonable fees for expert witnesses and attorneys in pursuing the action if the owner is an independent inventor, a nonprofit organization, or an entity that had no more than 500 employees—unless the position of the United States was substantially justified or special circumstances make an award unjust.

The Back Pay Act, 5 U.S.C. § 7701(g)(2), provides that a government employee who is wrongfully deprived of pay is entitled, on correction of the personnel action, to receive reasonable attorney fees. In breach-of-contract cases the plaintiff may recover attorney’s fees against the United States if the contract so provides, or if the fees can be properly characterized as damages.

And in all other cases against the United States, the Equal Access to Justice Act, 28 U.S.C. § 2412(b), permits a court to award reasonable fees and expenses of attorneys if the Court finds that the position of the United States was not substantially justified, and the plaintiff’s assets do not exceed $2 million for an individual or $7 million for a corporation.

Contact our Takings Legal Team to Learn More