Enforcing the Right to Compensation

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Ordinarily, property is taken under a condemnation suit upon the payment of the money award by the condemner, and no interest accrues.1 Footnote
Danforth v. United States, 308 U.S. 271, 284 (1939) ; Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking). If, however, the property is taken in fact before payment is made, just compensation includes an increment which, to avoid use of the term “interest,” the Court has called “an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.” 2 Footnote
United States v. Klamath Indians, 304 U.S. 119, 123 (1938) ; Jacobs v. United States, 290 U.S. 13, 17 (1933) ; Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment). If the owner and the government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.3 Footnote
Albrecht v. United States, 329 U.S. 599 (1947) . Where property of a citizen has been mistakenly seized by the government and it is converted into money which is invested, the owner is entitled in recovering compensation to an allowance for the use of his property.4 Footnote
Henkels v. Sutherland, 271 U.S. 298 (1926) ; see also Phelps v. United States, 274 U.S. 341 (1927) .

The nature and character of the tribunal to determine compensation is in the discretion of the legislature, and may be a regular court, a special legislative court, a commission, or an administrative body.5 Footnote
United States v. Jones, 109 U.S. 513 (1883) ; Bragg v. Weaver, 251 U.S. 57 (1919) . Proceedings to condemn land for the benefit of the United States are brought in the federal district court for the district in which the land is located.6 Footnote
28 U.S.C. § 1403 . On the other hand, inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491 (a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States “founded . . . upon the Constitution.” See Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998) . Inverse condemnation claims against the United States not in excess of $10,000 may also be heard in federal district court under the “Little Tucker Act.” 28 U.S.C. § 1346 (a)(2). The estimate of just compensation is not required to be made by a jury but may be made by a judge or entrusted to a commission or other body.7 Footnote
Bauman v. Ross, 167 U.S. 548 (1897) . Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the trial judge is to instruct the jury with regard to the criteria and this includes determination of “all issues” other than the precise issue of the amount of compensation, so that the judge decides those matters relating to what is computed in making the calculation. United States v. Reynolds, 397 U.S. 14 (1970) . Federal courts may appoint a commission in condemnation actions to resolve the compensation issue.8 Footnote
Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a court-appointed master. If a body other than a court is designated to determine just compensation, its decision must be subject to judicial review,9 Footnote
Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893) . although the scope of review may be limited by the legislature.10 Footnote
Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) . In federal courts, reports of Rule 71A commissions are to be accepted by the court unless “clearly erroneous.” Fed. R. Civ. P. 53(e)(2). When the judgment of a state court with regard to the amount of compensation is questioned, the Court’s review is restricted. “All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution.” 11 Footnote
Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898) . “[T]here must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State has deprived him of his property unconstitutionally.” 12 Footnote
McGovern v. City of New York, 229 U.S. 363, 370–71 (1913) . Unless, by its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, its findings as to the amount of damages will not be overturned on appeal, even though as a consequence of error therein the property owner received less than he was entitled to.13 Footnote
229 U.S. at 371 . See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915) ; Appleby v. City of Buffalo, 221 U.S. 524 (1911) .

Failure to incur administrative (and judicial) delays can result in dismissal of an as-applied taking claim based on ripeness doctrine, an area of takings law that the Court has developed extensively since Penn Central . In Williamson County Regional Planning Commission v. Hamilton Bank ,18 Footnote
473 U.S. 172 (1985) . the Court announced a two-part ripeness test for takings actions brought in federal court—although the second part of this test was subsequently overturned by Knick v. Township of Scott .19 Footnote
139 S. Ct. 2162, 2179 (2019) . First, for an as-applied challenge, the property owner must obtain from the regulating agency a “final, definitive position” regarding how it will apply its regulation to the owner’s land.20 Footnote
Williamson Cty. , 473 U.S. at 191 . Second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court.21 Footnote
Id. at 195 . Thus, the claim in Williamson County was found unripe because the plaintiff had failed to seek a variance (first prong of test), and had not sought compensation from the state courts in question even though they recognized inverse condemnation claims (second prong).22 Footnote
Id. at 194, 196–97 . Similarly, in MacDonald, Sommer & Frates v. County of Yolo ,23 Footnote
477 U.S. 340 (1986) . a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but that denial had not foreclosed the possibility that a scaled-down (though still economic) version would be approved. In a somewhat different context, a taking challenge to a municipal rent control ordinance was considered “premature” in the absence of evidence that a tenant hardship provision had ever been applied to reduce what would otherwise be considered a reasonable rent increase.24 Footnote
Pennell v. City of San Jose, 485 U.S. 1 (1988) . Beginning with Lucas in 1992, however, the Court’s ripeness determinations have displayed an impatience with formalistic reliance on the “final decision” rule, while nonetheless explicitly reaffirming it. In Palazzolo v. Rhode Island ,25 Footnote
533 U.S. 606 (2001) . for example, the Court saw no point in requiring the landowner to apply for approval of a scaled-down development of his wetland, since the regulations at issue made plain that no development at all would be permitted there. “[O]nce it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.” 26 Footnote
533 U.S. at 620 . See also Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of her transferrable development rights, because no discretion remains to agency and value of such rights is a simple issue of fact).

Facial challenges dispense with the Williamson County final decision prerequisite, though at great risk to the plaintiff in that, without pursuing administrative remedies, a claimant often lacks evidence that a statute has the requisite economic impact on his or her property.27 Footnote
See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264, 295–97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected).

As noted, Williamson County also required litigants to exhaust state remedies before bringing a federal takings claim.28 Footnote
Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985) . This aspect of the Court’s decision had significant, and, as the Court came to conclude, “unanticipated” consequences for plaintiffs.29 Footnote
Knick v. Twp. of Scott , 139 S. Ct. 2162, 2169 (2019) . In San Remo Hotel, L.P. v. City and County of San Francisco , the plaintiffs had lost an inverse condemnation claim in state court after a federal court dismissed their earlier attempt to file in federal court, citing Williamson County ’s exhaustion requirement.30 Footnote
545 U.S. 323, 331–32 (2005) . When the litigants attempted to return to federal court, the court dismissed their claim, holding that the legal doctrine of issue preclusion prevented the court from relitigating those claims.31 Footnote
Id. at 334–35 . Under common-law preclusion doctrines, which are “implemented by” the federal full faith and credit statute,32 Footnote
28 U.S.C. § 1738 ( “[J]udicial proceedings . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” ). federal courts are in some circumstances required to abide by state court decisions that have already resolved the issues presently before the federal court.33 Footnote
San Remo , 545 U.S. at 336 . In San Remo , the Supreme Court held that these preclusion doctrines barred the plaintiffs’ takings claim, declining to create any special exceptions in the context of the Takings Clause.34 Footnote
Id. at 338 . Thus, as the Court later described this outcome, “[t]he adverse state court decision that . . . gave rise to a ripe federal takings claim simultaneously barred that claim.” 35 Footnote
Knick v. Twp. of Scott , 139 S. Ct. 2162, 2169 (2019) . In a concurring opinion in San Remo , four Justices said that while they agreed that the plaintiffs were precluded from relitigating their takings claim in federal court, they believed that Williamson County “may have been mistaken” in creating an exhaustion requirement.36 Footnote
San Remo , 545 U.S. at 348 (Rehnquist, C.J., concurring). The concurring Justices believed it was “not obvious” that this exhaustion requirement was required by “constitutional or prudential principles,” 37 Footnote
Id. at 349 . and they further contended that “ Williamson County ’s state-litigation rule . . . . all but guarantees that claimants will be unable to utilize the federal courts to enforce the Fifth Amendment’s just compensation guarantee.” 38 Footnote
Id. at 351 .

The Supreme Court overruled Williamson County ’s exhaustion requirement in Knick v. Township of Scott .39 Footnote
139 S. Ct. 2162, 2179 (2019) . Instead, the Court held that property owners have a “ Fifth Amendment right to full compensation” and a concomitant right to bring a federal suit at the time the government takes their property, “regardless of post-taking remedies that may be available to the property owner.” 40 Footnote
Id. at 2170, 2173. The Court said its cases had long established that a right to compensation “arises at the time of the taking,” and that Williamson County ’s conclusion otherwise had rested on a misunderstanding of precedent.41 Footnote
Id. at 2170, 2173-75. The Supreme Court concluded that Williamson County was wrongly decided and that stare decisis considerations did not preclude it from overruling the exhaustion aspects of that decision.42 Footnote
Id. at 2177 .

Footnotes 1 Danforth v. United States, 308 U.S. 271, 284 (1939) ; Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking). 2 United States v. Klamath Indians, 304 U.S. 119, 123 (1938) ; Jacobs v. United States, 290 U.S. 13, 17 (1933) ; Kirby Forest Industries v. United States, 467 U.S. 1 (1984) (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment). 3 Albrecht v. United States, 329 U.S. 599 (1947) . 4 Henkels v. Sutherland, 271 U.S. 298 (1926) ; see also Phelps v. United States, 274 U.S. 341 (1927) . 5 United States v. Jones, 109 U.S. 513 (1883) ; Bragg v. Weaver, 251 U.S. 57 (1919) . 6 28 U.S.C. § 1403 . On the other hand, inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491 (a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States “founded . . . upon the Constitution.” See Eastern Enterprises v. Apfel, 524 U.S. 498, 520 (1998) . Inverse condemnation claims against the United States not in excess of $10,000 may also be heard in federal district court under the “Little Tucker Act.” 28 U.S.C. § 1346 (a)(2). 7 Bauman v. Ross, 167 U.S. 548 (1897) . Even when a jury is provided to determine the amount of compensation, it is the rule at least in federal court that the trial judge is to instruct the jury with regard to the criteria and this includes determination of “all issues” other than the precise issue of the amount of compensation, so that the judge decides those matters relating to what is computed in making the calculation. United States v. Reynolds, 397 U.S. 14 (1970) . 8 Rule 71A(h), Fed. R. Civ. P. These commissions have the same powers as a court-appointed master. 9 Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893) . 10 Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) . In federal courts, reports of Rule 71A commissions are to be accepted by the court unless “clearly erroneous.” Fed. R. Civ. P. 53(e)(2). 11 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898) . 12 McGovern v. City of New York, 229 U.S. 363, 370–71 (1913) . 13 229 U.S. at 371 . See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915) ; Appleby v. City of Buffalo, 221 U.S. 524 (1911) . 14 See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264, 293–97 (1981) , and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (rejecting facial taking challenges to federal strip mining law). 15 482 U.S. 304 (1987) . The decision was 6-3, Chief Justice Rehnquist’s opinion of the Court being joined by Justices Brennan, White, Marshall, Powell, and Scalia, and Justice Stevens’ dissent being joined in part by Justices Blackmun and O’Connor. The position the Court adopted had been advocated by Justice Brennan in a dissenting opinion in San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 636 (1981) (dissenting from Court’s holding that state court decision was not “final judgment” under 28 U.S.C. § 1257 ). 16 482 U.S. at 321 . 17 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory requirement that small fractional interests in allotted Indian lands escheat to tribe, rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment version of escheat statute). 18 473 U.S. 172 (1985) . 19 139 S. Ct. 2162, 2179 (2019) . 20 Williamson Cty. , 473 U.S. at 191 . 21 Id. at 195 . 22 Id. at 194, 196–97 . 23 477 U.S. 340 (1986) . 24 Pennell v. City of San Jose, 485 U.S. 1 (1988) . 25 533 U.S. 606 (2001) . 26 533 U.S. at 620 . See also Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) (taking claim ripe despite plaintiff’s not having applied for sale of her transferrable development rights, because no discretion remains to agency and value of such rights is a simple issue of fact). 27 See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264, 295–97 (1981) (facial challenge to surface mining law rejected); United States v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected). 28 Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985) . 29 Knick v. Twp. of Scott , 139 S. Ct. 2162, 2169 (2019) . 30 545 U.S. 323, 331–32 (2005) . 31 Id. at 334–35 . 32 28 U.S.C. § 1738 ( “[J]udicial proceedings . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” ). 33 San Remo , 545 U.S. at 336 . 34 Id. at 338 . 35 Knick v. Twp. of Scott , 139 S. Ct. 2162, 2169 (2019) . 36 San Remo , 545 U.S. at 348 (Rehnquist, C.J., concurring). 37 Id. at 349 . 38 Id. at 351 . 39 139 S. Ct. 2162, 2179 (2019) . 40 Id. at 2170, 2173. 41 Id. at 2170, 2173-75. 42 Id. at 2177 .

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