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Last week I posed a question: "can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdictionif not under the Takings Clause, perhaps under some theory of tort." This post will shed some light on this question, though I still have not yet reached a firm conclusion. And the fifth post in my bump stock series will, alas, have to await further consideration (See Parts I,II,III, andIV).

As a general matter, the federal government cannot be sued for damages without its consent. Congress has waived its immunity through several statutes. For example, the Federal Torts Claims Act provides a limited waiver of sovereign immunity for certain types of torts. And the Supreme Court has alsoimplied certain waivers of sovereign immunity. Through so-calledBivensclaims, plaintiffs can seek monetary damages for violations of the Fourth and Fifth Amendment. But the Supreme Court has held that there is no waiver of sovereign immunity for suits based on other provisions of the Bill of Rights, such as the Eighth Amendment. And in recent years, the Supreme Court has put the brakes on future Bivens claims. This much is straightforward doctrine.

But what about the Takings Clause? It is the only provision of the Bill of Rights that clearly states landowners are entitled to monetary damages: "nor shall private property be taken for public use, without just compensation." Is the Takings Clause a self-executing waiver of sovereign immunity?

In traditional eminent domain questions, the issue of sovereign immunity is irrelevant. Why? The government initiates a condemnation proceeding against a landowner. In other words, a private landowner does not need to sue the federal government. But there is another common type of takings case, known as an inversecondemnation suit. Here, the government regulates a person's property, but insists there is no taking. Then, the landowner sues the federal government, alleges a violation of the Takings Clause, and seeks "just compensation."

Congress has enacted two relevant statutes that purport to waive sovereign immunity for inverse condemnation suits. First, the Tucker Act gives the Court of Federal Claims jurisdiction to hear takings claims against the federal government where the property is worth more $10,000. It provides, in part:

TheUnited States Court of Federal Claimsshall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongressor 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 Tucker Act does not expressly mention takings, but claims under the Fifth Amendment are "founded . . . upon the Constitution." (They also "arise under the Constitution.") The Court of Federal Claims is an Article I court: the judges serve for fifteen year terms, and there are no jury trials. Second, the Little Tucker Act gives all federal district courts jurisdiction to hear takings claims against the federal government where the property is worth less than $10,000. It provides, in part:

The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims . . .

Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act ofCongress, 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, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41

These cases are heard by Article III judges, but jury trials are not permitted. Under both statutes, appeals are heard by the U.S. Court of Appeals for the Federal Circuit, an Article III court. (Fun fact: John Randolph Tucker, the namesake of the Tucker Act, was the grandson of St. George Tucker.)

Can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction? I think this question has not been squarely resolved by the Supreme Court. The Supreme Court denied certiorari on a closely-related question in 2018. Brott v. U.S. presented this question: "Can the federal government take private property and deny the owner the ability to vindicate his constitutional right to be justly compensated in an Article III Court with trial by jury?"

In Brott, the Plaintiffs filed an inverse condemnation suit against the government in federal district court, but requested more than $10,000. They also requested a jury trial. The complaint cited Section 1331 federal question jurisdiction. They acknowledged the Little Tucker Act did not support their claim, because the amount in controversy was more than $10,000. Therefore, they argued that the "action is founded upon the Constitution" itself. That is, "arising under" jurisdiction through 28 U.S.C. 1331. It provides:

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

And the Plaintiffs claimed that the Little Tucker Act itself was unconstitutional:

In the Tucker Act and Little Tucker Act, 28 U.S.C. 1346 and 1491, Congress vested the Court of Federal Claims with exclusive jurisdiction to hear all claims against the United States "founded upon the Constitution" where the amount in controversy exceeds $10,000. To the extent Congress created the Court of Federal Claims as an Article I legislative court free of Article III's requirements and vested the Court of Federal Claims with jurisdiction to hear claims "founded upon the Constitution" these provisions are unconstitutional.

The District Court rejected their claims, as did the Sixth Circuit. The Court found that it lacked subject matter jurisdiction over takings claims, even though takings claims "arise under the Constitution."

28 U.S.C. 1331 (1976), the general federal question provision, does not provide a jurisdictional basis on these facts. The Fifth Amendment "taking" claim "arises under the Constitution," and a remedy for a violation of this provision arguably does not require a waiver of sovereign immunity. However, a number of cases indicate that Congress has made the Court of Claims the exclusive and an adequate forum for the Fifth Amendment claims, at least those over $10,000. We conclude that 28 U.S.C. 1346(a)(2) [the Little Tucker Act] expressly limits the district court's jurisdiction over these types of claims against the government to those not exceeding $10,000 in amount and that to utilize the court's federal question or pendent jurisdiction as to the Fifth Amendment claim would override the express policy of Congress embodied in the Tucker Act. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1088 (6th Cir. 1978).

The Circuit Court also held that the general grant of jurisdiction in Section 1331 does not trump "the Little Tucker Act's specific and limited grant of jurisdiction." As best as I can tell, the Supreme Court has never addressed this question concerning Section 1331. I will address it at the end of this post.

Next, the Circuit Court found that "Congress may also decline to waive sovereign immunity, or it may withdraw or modify its consent to suit, even if the right at issue is drawn from the Constitution." In other words, Congress needs to waive its sovereign immunity, even where the federal government "takes" private property. The Fifth Amendment, therefore, is not a self-executing waiver of sovereign immunity. The Court explained, "Sovereign immunity, however, does not distinguish between congressionally created entitlements and constitutionally created rights."

The landowners countered that an explicit waiver is not necessary for the Takings Clause:

Nevertheless, the landowners argue that an explicit waiver is unnecessary here because the Fifth Amendment right to just compensation is a "self-executing" right and the right to compensation itself contains a waiver of sovereign immunity. The Supreme Court has indeed referred to the Fifth Amendment right to just compensation as "self-executing." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987). The Supreme Court has explained that a Fifth Amendment takings claim is self-executing and grounded in the Constitution, such that additional "[s]tatutory recognition was not necessary." Id. (quoting Jacobs v. United States, 290 U.S. 13, 16 (1933)); see United States v. Dickinson, 331 U.S. 745, 748 (1947).

But the Sixth Circuit rejects this argument:

However, the fact that the Fifth Amendment creates a "right to recover just compensation," First English, 482 U.S. at 315 (quoting Jacobs, 290 U.S. at 16), does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages. See Minnesota v. United States, 305 U.S. 382, 388 (1939) ("[I]t rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought.").

Here is the full quote fromFirst English:

[A] landowner is entitled to bring an action in inverse condemnation as a result of the "selfexecuting character of the constitutional provision with respect to compensation" ***. As noted in Justice Brennan's dissent in San Diego Gas, it has been established at least since Jacobs [v. United States, 290 U.S. 13 (1933)] that claims for just compensation are grounded in the Constitution itself *** Jacobs *** does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution.

in his Webster v. Doedissent (1988), Justice Scalia also seemed to reject the self-executing argument the landowners advanced:

The doctrine of sovereign immunitynot repealed by the Constitution, but to the contrary at least partly reaffirmed as to the States by the Eleventh Amendment is a monument to the principle that some constitutional claims can go unheard. No one would suggest that, if Congress had not passed the Tucker Act, 28 U.S.C. 1491(a)(1), the courts would be able to order disbursements from the Treasury to pay for property taken under lawful authority (and subsequently destroyed) without just compensation.

The Circuit Court then explained there are two requirements for a waiver of sovereign immunity:

The United States argues that a waiver of sovereign immunity typically requires two things: [1] the existence of a right and [2] provision of a judicial remedy. The Fifth Amendment details a broad right to compensation, but it does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced. . . . The Tucker Act's waiver of sovereign immunity, therefore, is a necessary ingredient for just-compensation claims brought against the United States.

The Sixth Circuit also relied on history:

First, the landowners have cited no case in which the Fifth Amendment has been found to provide litigants with the right to sue the government for money damages in federal district court.

(I'll address this historical argument later in the post).

The Sixth Circuit also held that "The landowners' compensation claims are public-right claims. These are claims made by private individuals against the government in connection with the performance of a historical and constitutional function of the legislative branch, namely, the control and payment of money from the treasury." (The public rights doctrine is very, very messy, and I will table it here).

Brott and the other landowners filed a cert petition. The petitioners argued that there is no need for a statutory waiver of sovereign immunity:

While a statutory waiver of sovereign immunity may be necessary to enforce a congressionally-created entitlement, this does not apply when the right being enforced is founded upon the Constitution itself. . . .

Because the right to just compensation arises directly from the Constitution, Congress cannot abrogate this right by statute. See Jacobs, 290 U.S. at 17 ("the right to just compensation could not be taken away by statute or be qualified by the omission of a provision for interest") (citing Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 306 (1923), and Phelps, 274 U.S. at 343-44).

The Solicitor General opposed certiorari. The government stated that Congress is under no obligation to give the courts jurisdiction to hear takings cases:

In 1855, Congress established the Court of Claims "to relieve the pressure created by the volume of private bills." Mitchell, 463 U.S. at 212-213. The court's jurisdiction did not, however, extend to constitutional claims. "Most property owners" seeking compensation for asserted takings were thus "left to petition Congress for private relief, but Congress was neither compelled to act, nor to act favorably." 2 Wilson Cowen et al., The United States Court of Claims: A History 45 (1978) (Cowen). As a result, "many owners had suffered the misfortune of holding a legal right for which there was no enforceable legal remedy." Ibid. That situation led this Court to observe that "[i]t is to be regretted that Congress has made no provision by any general law for ascertaining and paying th[e] just compensation" owed for takings of private property by the United States. Langford v. United States, 101 U.S. 341, 343 (1880).

I am not sure Langford is directly on point. The Court's discussion of "just compensation" is more limited than the government suggests. Here is the full passage:

The other point is one which requires more delicate handling. We are not prepared to deny that when the government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value. It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation. And we are not called on to decide that when the *344 government, acting by the forms which are sufficient to bind it, recognizes that fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims. On this point we decide nothing.

The SG citesLangford to describe the state of the lawbeforethe Tucker Act was enacted. ButLangfordwas decided after the Tucker Act was enacted. Indeed, the appeal arose from the Court of Claims. I don't think this nuanced statement concerned sovereign immunity and the Takings Clause more broadly. I think this statement concerned the very precise fact pattern at issue inLangford. Here, property owners sued the federal government in the Court of Claims"to recover for the use and occupation of certain lands and buildings." And they advanced an implied contract theory that is referenced in the text of the Tucker Act. In any event, the Court doesn't resolve this issue. "On this point we decide nothing."

The SG also looked to history:

It was not until 1887 that Congress enacted the Tucker Act, waiving sovereign immunity and conferring on the Court of Claims jurisdiction to hear cases "founded upon the Constitution." Act of Mar. 3, 1887, ch. 359, 24 Stat. 505; see Mitchell, 463 U.S. at 214; Cowen 45-46. Thus, for the first century of our Nation's history, claims seeking compensation for asserted takings by the United States were resolved by Congress not by the courts.

The Sixth Circuit made a similar point. I'm not sure this history helps as much as the government suggests. Until 1875, there was no federal question jurisdiction. (It existed for a brief period after the Federalists enact the Judiciary Act of 1801, also known as the Midnight Judges Bill.) The only way to get into federal court was through diversity jurisdiction. The Tucker Act was enacted in 1887. And federal question jurisdiction (what became Section 1331) was created twelve years prior in 1875. It is unsurprising that there were no claims for takings based on federal question for the first nine decades after ratification.

I see here a parallel toHans v. Louisiana. The Eleventh Amendment made it impossible for a citizen of one state to sue another state in federal court. The text, at least, left open the question of whether a citizen could sue his own state in federal court. But until Congress created federal question jurisdiction, it was impossible for a citizen of one state to sue his own state in federal court. The only path to federal court was diversity jurisdiction. In 1875, Congress creates the federal question statute. Fast-forward to 1890. The Supreme Court decides Hans v. Louisiana. It holds that a citizen of Louisiana cannot sue the state of Louisiana. Here, the Supreme Court finally had an opportunity to address a question that was not resolved by the text of the Eleventh Amendment. (Or was it?) Indeed, it took nearly 15 years for the Supreme Court to address this question after the federal question jurisdiction was restored.

By way of comparison, twelve years after federal question jurisdiction was reimposed, Congress enacts the Tucker Act, which expressly waived sovereign immunity for takings claims. It is unsurprising during this twelve year gap, the Supreme Court did not have occasion to decide if the Takings Clause, by itself, effects a waiver of sovereign immunity.

Perhaps the most relevant case isU.S. v. Lee(1882). In this famous case, Robert E. Lee's son challenged the federal governments seizure of the land in Virginia that would become Arlington National Cemetery. The Solicitor General argued thatLee, as well as Larson v. Domestic & Foreign Commerce Corp, precludes Brott's claims.

Petitioners' "celebrated example" (Pet. 36) vividly illustrates their error. Petitioners correctly note (ibid.) that, in United States v. Lee, 106 U.S. 196 (1882), Robert E. Lee's son brought a suit challenging the United States' seizure of the land that became Arlington National Cemetery. But it was neither a suit seeking just compensation nor one brought against the United States. Instead, it was an "ejectment" action brought against individual federal officers under state law and seeking "to recover possession" of the land. Id. at 197- 198; see id. at 210 ("The case before us is a suit against Strong and Kaufman as individuals, to recover possession of property."). The Court in Lee recognized that Lee's son could not have sought compensation from the United States. Id. at 222. And this Court has since reaffirmed that, when "[t]he Lee case was decided in 1882," "there clearly was no remedy available by which he could have obtained compensation for the taking of his land." Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697 n.17 (1949).

Here is the relevant passage fromLee. It doesn't say exactly what the SG argued:

Another consideration is, that since the United States cannot be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the government, as is decided by this court in the case ofCarr v. United States, already referred to, the government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights.

Here, I think "its" modifies "United States." This passage does not concern a landowner suing the federal government for regulating the landowners property. The facts of Lee are tortured, but it did not begin as a suit against the federal government; it originated as a state court action in ejectment against federal officials. I need to study the posture more closely.

And here is the passage from Larson:

The Court thus assumed that if title had been in the plaintiff the taking of the property by the defendants would be a taking without just compensation and, therefore, an unconstitutional action. FN17

FN17: The Lee case was decided in 1882. At that time there clearly was no remedy available by which he could have obtained compensation for the taking of his land. Whether compensation could be obtained today in such a case is, of course, not the issue here.

I think theLarsonCourt was describing the fairly intricate facts of Lee's case, for which there was no remedy. I don't take that footnote to be saying anything at all about the Takings Clause, in general. I welcome corrections. LeeandLarson are somewhat enigmatic decisions. But the SG's argument is not the best reading of those cases.

The Solicitor General offered a very different reading of First English.

First English thus concluded that the Fifth Amendment is self-executing in that it creates a right to compensation for a taking. But "the fact that the Fifth Amendment creates a 'right to recover just compensation,' does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages." Pet. App. 13a (quoting First English, 482 U.S. at 315) (citation omitted). To recover money damages against the United States, a plaintiff must identify both a waiver of sovereign immunity and a "substantive right enforceable against the United States for money damages." Mitchell, 463 U.S. at 216 (citations omitted); see Pet. App. 14a. The Tucker Act waives sovereign immunity, but does not create any substantive rights. Mitchell, 463 U.S. at 216. Instead, "[a] substantive right must be found in some other source of law, such as 'the Constitution, or any Act of Congress.' " Ibid. (quoting 28 U.S.C. 1491).

First English makes clear that the Fifth Amendment creates a substantive "right to recover just compensation for property taken by the United States" that may be enforced under the Tucker Act without further congressional action. 482 U.S. at 315 (citation omitted) cf. Mitchell, 463 U.S. at 216 ("Not every claim invoking the Constitution * * * is cognizable under the Tucker Act."). But First English did not involve a suit against the United States, and the Court did not discussmuch less overrulethe century's worth of precedent establishing that the Tucker Act's waiver of sovereign immunity is a necessary precondition to suits seeking just compensation from the United States.

In other words, the Fifth Amendment does not, by itself, get you into federal court to sue.

Let's revisit the discussion from Maine Maine Community Health Options v. United States. that occasioned my original post. Justice Sotomayor wrote in a footnote:

By the dissent's contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not "expressly create . . . a right of action,"post,at 3, when it mandated "just compensation" for Government takings of private property for public use, Amdt. 5; see alsoFirst English Evangelical Lutheran Church of Glendalev.County of Los Angeles, 482 U. S. 304, 315316 (1987).Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law.E.g., Ruckelshausv.Monsanto Co., 467 U. S. 986, 1016 1017 (1984) (citingUnited Statesv.Causby, 328 U. S. 256, 267 (1946)).

The emphasized sentence purports to resolve the issue that was not resolved in Leeand Larson. This sentence also conflicts with language inFirst English. But it does conform with Justice Scalia's dissent in Webster. How should we treat this sentence? First, this issue was not at all relevant toMaine. It was not briefed. The plaintiffs in that case brought suit under the Tucker Act. They did not assert a claim under the Fifth Amendment. I tend to think the Supreme Court does not resolve important constitutional questions in passing, without any consideration. I am not even sure what "express cause of action" means. The Court here didn't discuss Section 1331 federal question jurisdiction or sovereign immunity. I am loathe to ever label a sentence in a SCOTUS decision as dicta, but this is it. The Court does not quietly resolve longstanding constitutional questions, on which cert petitions were previously denied, in such a slapdash fashion.

Going forward, I think there are two important questions that remain unresolved. First, can plaintiffs bring a takings suit against the federal government under Section 1331, without relying on the Little Tucker Act? That is, can Section 1331's grant of general jurisdiction co-exist with the Little Tucker Act's grant of specific jurisdiction. Second, assuming the federal district court has jurisdiction under Section 1331, is the Takings Clause a "self-executing" waiver of sovereign immunity?

Professor James W. Ely and the Mountain States Legal Foundation submitted an amicus brief in Brott. They framed these two questions precisely:

This Court has repeatedly emphasized the principle that the Just Compensation Clause is self-executing. E.g., First English Evangelical Lutheran Church v. Cnty. of Los Angeles, 482 U.S. 304, 314 (1987); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 654 (1981) (Brennan, J., dissenting); United States v. Clarke, 445 U.S. 253, 257 (1980); Jacobs v. United States, 290 U.S. 13, 15 (1933). Thus, contrary to the judgment below, the district court had jurisdiction over this case under 28 U.S.C. 1331. In fact, a waiver of sovereign immunity for just compensation claims is not only unnecessary, but duplicitous.

The Supreme Court addressed the first question, albeit indirectly in Duke Power Co. v. Carolina Environmental Study Group, Inc. (1978). The question presented was whether "whether Congress may, consistent with the Constitution, impose a limitation on liability for nuclear accidents resulting from the operation of private nuclear power plants licensed by the Federal Government." This case did not squarely present the question of whether the federal courts have jurisdiction to hear Takings Claims under Section 1331. But the Court addressed this issue.

The majority, per Chief Justice Burger, stated that a takings claim can be brought under Section 1331 federal question jurisdiction:

In light of prior decisions, for example,Bivensv.Six Unknown Fed. Narcotics Agents,403 U. S. 388 (1971)andHagansv.Lavine, supra,as well as the general admonition that "where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief,"Bellv.Hood, supra,at 684, we conclude that appellees' allegations are sufficient to sustain jurisdiction under 1331 (a).

(The citation to Bivensis a bit of a throwback. The better answer is that the text of the Fifth Amendment itself speaks of monetary damages. There is no reason to rely on implied remedies.)

In dissent, then-Justice Rehnquist disagrees. He states that federal district courts lack jurisdiction under Section 1331 for takings claims. They could only rely on the Little Tucker Act, which imposes a jurisdictional limit of $10,000.

The District Court does have jurisdiction to consider claims of taking under the [Little] Tucker Act, 28 U. S. C. 1346 (a) (2) (1976 ed.), where the amount in controversy does not exceed $10,000.

The majority responds to Rehnquist in a footnote:

MR. JUSTICE REHNQUIST suggests that appellees' "taking" claim will not support jurisdiction under 1331 (a), but instead that such a claim can be adjudicated only in the Court of Claims under the Tucker Act, 28 U. S. C. 1491 (1976 ed.). We disagree.

But the Court doesn't actually say that all takings claims can be brought under 1331 jurisdiction. The Court hedges a bit:

Appellees are not seeking compensation for a taking, a claim properly brought in the Court of Claims, but are now requesting a declaratory judgment that since the Price-Anderson Act does not provide advance assurance of adequate compensation in the event of a taking, it is unconstitutional.While the Declaratory Judgment Act does not expand our jurisdiction, it expands the scope of available remedies. Here it allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.

(This point confused me; jurisdiction for a declaratory judgment can be sought under 28 U.S.C. 2201. The Court really doesn't explain the interaction of 1331 and 2201.

Rehnquist raises this point in his dissent:

Nor does the fact that appellees seek only declaratory relief under the Declaratory Judgment Act, 28 U. S. C. 2201 (1976 ed.), support a different result. This Court has held that the well-pleaded complaint rule applied inMottleyis fully applicable in cases seeking only declaratory relief, because the Declaratory Judgment Act merely expands the remedies available in the district courts without expanding their jurisdiction.

In any event, Rehnquist reads the majority's opinion quite broadly:

The Court concludes, ante, at 71 n. 15, although appellees do not so contend, that their taking claim is cognizable under 28 U. S. C. 1331 (a) (1976 ed.), which grants jurisdiction to the district courts where the suit "arises under the Constitution."

Then, Rehnquist draws the natural implication from the majority's opinion:

To conclude that 1331 embraces a "taking" claim makes the Tucker Act largely superfluous, cf. United States v. Testan, 424 U. S. 392, 404 (1976), and will permit the district courts to consider claims of over $10,000 which previously could only be litigated in the Court of Claims. Richardson v. Morris, 409 U. S. 464 (1973). Such a significant expansion of the jurisdiction of the district courts should not be accomplished without the benefit of arguments and briefing.

Rehnquist here presages Scalia's dissent from Webster v. Doe. I read the Duke majority the same way Rehnquist did. Federal Courts can exercise Section 1331 jurisdiction over takings claims, irrespective of the Declaratory Judgment Act wrinkles.

One last point. The Little Tucker Act and Section 1331 can be read harmoniously. The former waives sovereign immunity for a wide range claims against the federal government; for example, disputes over of governmental contracts. There is no express constitutional provision that waives sovereign immunity for contract disputes with the federal government. (The Contracts Clause only applies to states.) The Tucker Act was not needed to waive sovereign immunity for Takings Claim; that waiver was self-executed by the 5th Amendment itself. A dispute over a government contracts would "arise under" federal law for purposes of Section 1331. But there is no waiver of sovereign immunity for that claim, absent the Tucker Act. The Tucker Act no doubt created a convenient and specialized forum to litigate takings cases, but Section 1331 provides the requisite jurisdiction for takings claims.

I'll address this issue further in a future writing.

Update: I corrected the discussion of Lee v. U.S.

Excerpt from:
Is the Takings Clause a "self-executing" waiver of sovereign immunity? - Reason

A group of U.S. citizens whose parents are undocumented immigrants are suing the government for being denied relief money from the coronavirus stimulus bill that was signed into law in March.

The group filed a class-action lawsuit in federal court on Tuesday, arguing that their exclusion from the relief package is unconstitutional.

"The refusal to distribute this benefit to U.S. citizen children undermines the CARES Acts goal of providing assistance to Americans in need, frustrates the Acts efforts to jumpstart the economy, and punishes citizen children for their parents status punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes," their lawsuit reads.

The lawsuit was filed in Maryland's federal district court by the Georgetown University law school's Institute for Constitutional Advocacy and Protection on behalf of the group.

The Coronavirus Aid, Relief and Economic Security (CARES) Act pays out up to $1,200 to eligible adults and up to $500 for each of their children. But in order to receive the money, beneficiaries must have Social Security numbers, which undocumented immigrants lack, meaning their children can't obtain the stimulus checks even if they are American citizens.

The lawsuit argues that undocumented immigrants have been particularly hard-hit by the pandemic's toll on the economy. They largely work in low-wage jobs and are ineligible for unemployment insurance, making the $500 relief payments crucial for families headed by undocumented parents, the class-action complaint argues.

One of the plaintiffs, identified only as Norma over security concerns, says that she lost her job in a restaurant that was shut down because of the pandemic and she has no way to get relief money for her son who was born in the U.S.

I have lost my job, and in my home three adults have the coronavirus; none of us are working, Norma said in a statement released through her lawyers. My son is an American citizen, and we need him to receive the CARES Act benefit to provide food and a roof over his head until this difficult moment passes.

The lawsuit alleges that the exclusion violates the equal protections in the Fifth Amendment and asked the court to rule that the group is eligible for relief payments.

A spokeswoman for the Treasury Department, which is named in the lawsuit as a defendant, did not immediately respond when asked for comment.

Original post:
Government sued over immigrant children not receiving COVID-19 checks | TheHill - The Hill

Item 1.01. Entry Into a Material Definitive Agreement

On May 6, 2020, Plug Power Inc. (the "Company") and its subsidiaries, EmergingPower Inc., a Delaware corporation, and Emergent Power Inc., a Delawarecorporation, entered into a Fifth Amendment (the "Amendment") to the Loan andSecurity Agreement, dated as of March 29, 2019, as amended (the "LoanAgreement") with Generate Lending, LLC, a Delaware limited liability company.The Amendment amends the Loan Agreement to, among other things, (i) provide foran incremental term loan (the "Incremental Term Loan") in the amount of $50million, (ii) provide for additional, uncommitted incremental term loans in anaggregate amount not to exceed $50 million, which may become available to theCompany in the lender's sole discretion, (iii) reduce the interest rate on allloans to 9.50% from 12.00% per annum, and (iv) extend the maturity date toOctober 31, 2025 from October 6, 2022. The Incremental Term Loan is secured bythe same collateral securing the existing term loan on a pari passu basis and issubject to all provisions of the Loan Agreement, including those relating toprepayment, repayment and acceleration of maturity, guarantees, and covenants,limitations and events of default. The $50 million Incremental Term Loan hasbeen fully funded.

The foregoing summary does not purport to be complete and is qualified in itsentirety by reference to the Amendment, a copy of which will be filed as anexhibit to the Company's Quarterly Report on Form 10-Q for the quarter endedMarch 31, 2020 and incorporated by reference into this Item 1.01.

Item 2.02 Results of Operations and Financial Condition

On May 7, 2020, the Company released its financial results for the quarter endedMarch 31, 2020 by posting its First Quarter 2020 Shareholder Letter on itswebsite. The full text of the Shareholder Letter is furnished as Exhibit 99.1hereto and is incorporated by reference into this Item 2.02.

The information in this Item 2.02, including Exhibit 99.1 hereto, shall not bedeemed "filed" for purposes of Section 18 of the Securities Exchange Act of1934, as amended (the "Exchange Act"), or otherwise subject to the liabilitiesof that section, nor shall it be deemed incorporated by reference in any filingunder the Securities Act of 1933, as amended (the "Securities Act"), or theExchange Act, except as expressly set forth by specific reference in suchfiling.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under anOff-Balance Sheet Arrangement of a Registrant.

The information set forth under or incorporated by reference into Item 1.01 ofthis Current Report on Form 8-K is incorporated by reference into this Item2.03.

Item 7.01 Regulation FD Disclosure

The information set forth under or incorporated by reference into Item 2.02 ofthis Current Report on Form 8-K is incorporated by reference into this Item7.01.

On May 7, 2020, the Company issued a press release announcing its entry into theAmendment. A copy of the press release is furnished as Exhibit 99.2 hereto andincorporated by reference into this Item 7.01.

On May 7, 2020, the Company issued a press release announcing progress on theCompany's vertical integration strategy. A copy of the press release isfurnished as Exhibit 99.3 hereto and incorporated by reference into this Item7.01.

The information in this Item 7.01 shall not be deemed to be "filed" for purposesof Section 18 of the Exchange Act, or otherwise subject to the liability of thatsection, nor shall it be deemed incorporated by reference in any filing underthe Securities Act or the Exchange Act, except as expressly set forth byspecific reference in such filing.

Item 9.01. Financial Statements and Exhibits.

Edgar Online, source Glimpses

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PLUG POWER INC : Entry into a Material Definitive Agreement, Results of Operations and Financial Condition, Creation of a Direct Financial Obligation...

The Uttar Pradesh Electricity Regulatory Commission (UPERC) has taken note of Uttar Pradesh Power Corporation Limiteds (UPPCL) request to modify the Central Electricity Regulatory Commission (CERC) deviation settlement mechanism (DSM) regulations to take care of the state-specific needs.

The Commission stated that it would issue necessary amendments to the Regulations 2019 as required. Until then, the prevailing regulations will continue to be in force. The Commission added that the DSM would continue to be implemented for all renewable energy-based power projects, except small hydro and municipal solid waste projects. All other renewable projects will be subject to day-ahead scheduling.

The forecasting and scheduling of renewable power and compensation to be paid to electricity grid infrastructure providers in case of errors are regulated through deviation settlement mechanism.

The Commission also observed that UPERC Generation Tariff Regulations 2019, had a provision that said that the state would be governed by the CERC regulations until the state comes up with its specific regulations. On deviation charges, the UPERC Regulations stated:

According to the UPERC Generation Tariff Regulations, 2019:

Variations between the actual net injection and scheduled net injection for the generating stations and variations between the actual net drawl and scheduled net drawl for the beneficiaries will be treated as their respective deviations and the charges for such deviations will be governed by the CERC Regulations, 2014, till DSM Regulations of the Commission are notified

Earlier, the UPPCL had filed a petition seeking modification of the adopted CERC DSM Regulations. UPPCL had also requested the Commission to bring all renewable projects under the adopted CERC DSM by modifying applicable regulations. It also asked the Commission to direct Uttar Pradesh State Load Dispatch Centre (UPSLDC) to maintain accounts for deviation and raise bills on a pro-rata basis for projects up to 400 MW.

The hearing was held on September 05, 2019, where it was submitted that the adopted CERC DSM Regulations might be modified by the Commission to meet the specific requirements of the state. The Commission, in its order dated September 12, 2019, had directed both the parties to discuss the specific modifications required in the adopted CERC DSM Regulations.

Recently, CERC rescheduled the implementation of the fifth amendment of deviation settlement regulations from April 1, 2020, to June 1, 2020. The present regulations (Regulation 7) will now be valid until May 31, 2020. The move came in the wake of the coronavirus outbreak in the country and the subsequent derailing of all segments of the economy.

In December last year, UPERCissueddraft regulations for forecasting, scheduling, and deviation settlement of solar and wind projects in the state.

Earlier, Mercom had reported that the CERCestablisheda fee for errors based on 15-minute time blocks and charges for deviation payable or receivable to/from regional DSM pools by the renewable generators. If the error is more than 15%, then additionalchargesfor deviation will be levied along with the fixed rate.

So far, states likeRajasthan,Gujarat,Maharashtra,Uttar Pradesh,Punjab,Telangana,Haryana,Andhra Pradesh,Gujarat,Tamil Nadu, andMeghalayahave issued regulations for the forecasting, scheduling, and deviation settlement for solar and wind generation.

Previously, Mercompublished a reportthat shed light on how difficult forecasting and scheduling can be for renewable developers due to the intrinsic intermittency of these resources.

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Renewable Projects in Uttar Pradesh to See New Forecasting and Scheduling Regulations - Mercom India

Guest Post by Prof. Gregory Dolin (Baltimore). Prof. Dolin recently filed an amicus brief supporting Celgenes arguments that AIA post-issuance review represents an uncompensatedtakings of pre-AIA patent rights.

Since its passage in 2011, the America Invents Act has been subject to numerous Supreme Court decisions. But thus far, the major constitutional challenge to the Act in Oil States Energy Servs v. Greenes Energy Group has failed. But while the Court the, upheld the AIAs post-issuance review system against an Article III challenge, left a major question open. The Oil States Court stated that it was not resolving whether the application the AIA-created procedures to patents issued prior to the AIAs effective date violates the Takings Clause of the Fifth Amendment. This question is now squarely presented to the Court in Celgene v. Peter. (There are also pendingcases that in addition to the Takings issue raise a Due Process challenge).

Celgene owns two patents generally directed to methods for safely distributing teratogenic or other potentially hazardous drugs while avoiding exposure to a fetus to avoid adverse side effects of the drug. These patents were issued in 2000 and 2001, or more than a decade prior to the enactment of the AIA. These patents were challenged before the Patent Trial and Appeal Board (PTAB) in 2015 in an Inter Partes Review (IPR), and the proceeding resulted in cancellation of all but one of the challenged claims in bothpatents. As with other post-issuance proceedings, but unlike district court litigation, Celgenes patents enjoyed no presumption of validity, and could be cancelled upon preponderance of evidence. Furthermore, in construing Celgenes claims, PTAB utilized the broadest reasonable interpretation (BRI) approach, as was called for by the then-current rules. The interplay of lower standard of proof for cancellation and the BRI standard, combined with the lack of a meaningful opportunity to amend the claims, left patents challenged in IPR particularly vulnerable. (Since that time, the Patent Office issued new rules to amend its procedures and now measures the claims under the Phillips frameworkthe same standard in use by Article III tribunals).

Celgene challenged this procedure in the U.S. Court of Appeals for the Federal Circuit, arguing that by applying a different claim construction standard than in district court and denying the patent a previously existent presumption of validity, the America Invents Act retroactively devalued its property rights in their patents and therefore resulted in the constitutionally compensable Taking in violation of the Fifth Amendment. Relying on its two priordecisions, the Federal Circuit rejected the argument, holding that the presumption of validity is not a property right subject to the protection of the Constitution. Additionally, the Federal Circuit held that Celgene suffered no diminution in its property rights because its patents were always subject to ex parte and inter partes reexamination proceedings, both of which use (or used) the preponderance of the evidence standard with respect to patent validity. Celgene sought certiorari and I, together with Professors Kristen Jakobsen Osenga and Irina Manta filed a brief in support of the petition.

The argument we made in favor of Celgene is relatively straightforward. As the Supreme Court recognized timeandagain, a patent is a property right protected by the Takings Clause of the Constitution. In turn, the decision to procure a patent is fundamentally an investment decision which takes into account the likelihood that a patent would be challenged and survive such a challenge. In addition, the decision to disclose the invention and forgo trade secret protection is essentially a tradeoff: the patentee sacrifices the confidentiality of the invention in exchange for the protections of the patent system. (Admittedly, it is not always possible to keep the invention secret, especially if regulatory approval is necessary as in the case of Food and Drug Administrations approval to market drugs or medical devices. Nonetheless, broadly speaking, an inventor has a choice between patent protection and trade secrecy protection). Depending on the robustness of those protections, the scales of the decision on whether to seek a patent may tip one way or another. Thus, the legal regime existing at the time the applicant filed for the patent constitutes the patentees investment-backed expectation.

The legal regime matters, and IPRs couldnt be more different from reexaminations. As my researchshows, the economic impact of the AIA on patent holders has been profound. The reason behind this significant drop in value is that although administrative review procedures have existed for nearly 40 years, these procedures have always been coupled with a patentees unlimited right to amend the claims in order to preserve their validity. Thus, prior to the AIA the patentee knew that if his patent were challenged one of two things will happen. One option was for the dispute to end up in an Article III court where the claim would rise and fall as written, but where the patent would enjoy a presumption of validity. Alternatively, the dispute would be resolved by the Patent Office where the claims would not be presumed valid, but would be subject to amendments for as long as the patentee was willing to continue prosecuting the patent. The AIA fundamentally altered this balance. Under the AIA, claim patentability can be adjudicated by the PTAB without the presumption of validity and without a robust opportunity to amend the claims. (Although the statute does permit claim amendments, these are not as of right, but must be requested by motion to the PTAB. Since October 2017 when the Federal Circuit held that Motions to Amend must be allowed unless the Patent Office carried its burden to show that claims are unpatentable, the PTAB has granted only 16% of such motions (with an additional 6.5% being granted in part). These already low numbers are a significant improvement from the pre-2017 system where the PTAB granted under 3% of such motions.

It should be acknowledged that Celgene did not seek to amend its claims during the PTAB proceedings, which may make it not an ideal vehicle to resolve the takings claim. On the other hand, given PTABs rejectionist approach to motions to amend, it is quite possible that Celgene was among countless patentees who chose not to bother with filing the motions in the first place. (It is worth noting that Celgenes patents were adjudicated prior to October 2017).

The Supreme Court has previously concluded in Ruckelshaus v. Monsanto Co., that when the government changes the terms of the bargain with an individual, such a change can result in a regulatory taking. In Monsanto, the Court held that the Environmental Protection Agencys public disclosure of data voluntarily submitted to the Agency may, in some circumstances, constitute a taking. The Courts analysis was centered on the legal rules governing the use and disclosure of such data and the nature of the expectations of the submitter at the time the data were submitted. The Court held that the Governments guarantee at the time of submission that the submitted data would remain a trade secret and not be disclosed to third parties formed the basis of a reasonable investment-backed expectation and played a role in the property holders decision whether to submit the data to the EPA in the first place. Celgenes situation is analogous. When it had to make a decision whether or not to obtain a patent or rely on trade secrecy, it made the decision by reference to the then existing government guarantees of patent protections. Changes to that regime are what constitutes a compensable taking.

Before closing, it should be acknowledged that there is a significant issue that is antecedent to the question presented in Celgenes petition. That is whether the Federal Circuit has jurisdiction to hear such claims absent filing of a claim for compensation in the Court of Federal Claims (CFC) and if so, how the Claims Court is supposed to evaluate the value of property lost. That question is embedded in a separate petition before the Supreme Court. The Federal Circuit has recently concluded that the CFC does have jurisdiction to hear such claims, even if on the merits it must reject them. The Government has advanced a contrary view (which the CFC endorsed, though this endorsement is at odds with the Federal Circuits later opinion). It may be that this issue may need to be resolved before (or concurrently with) the issue presented by Celgene.

In sum, the Supreme Court should answer the question whether retroactive application of the AIAs post issuance review procedures to patents issued prior to the passage of the AIA, and which results in their invalidation, constitutes a taking within the meaning of the Fifth Amendmenta question the Court explicitly left open in Oil States. And in my view, the answer should be yes.

Go here to read the rest:
Cancelling Pre-AIA patents and the Takings Clause - Patently-O