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David Parsons Demarest v. Town of Underhill, Vermont, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 22-956 · judgment December 7, 2022


Certiorari denied · June 20, 2023
At-filing estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a Second Circuit decision below, and counsel who has filed here before, and down for a state or local-government respondent.

Questions presented

The Court of Appeals refused to give retroactive effect to this Court’s landmark decision in Knick v. Township of Scott, 139 S.Ct. 2162 (2019), which opened the federal courts to constitutional property litigation for the first time in 34 years. Compounding that error, the Court of Appeals refused to grant rehearing to consider the impact of the then pending decision in Wilkins v. United States, 143 S.Ct. 870 (2023), which ended up restricting the impact of statutes of limitation. In combination, the Court of Appeals’ refusal to apply this Court’s current law deprived Petitioner of property without just compensation and due process of law. The questions presented are:

  1. When Knick changed the world of takings litigation by allowing—for the first time since 1985—a property owner with a claim for unconstitutional taking of property to file suit in federal court, must that decision be applied retroactively, with the time to file suit tolled until the date Knick was decided, so as to give its benefit to property owners who had been precluded from suing in federal court before?

  2. When Wilkins confirmed in the real property context that statutes of limitation are not jurisdictional but are merely claim processing tools, must lower courts now treat statutes of limitation as affirmative defenses to be proved at trial by the defendant?

Counsel of record

For petitioner
Michael M. Berger
MANATT, PHELPS & PHILLIPS, LLP

For respondent
Kevin L. Kite
Carroll, Boe, Pell & Kite, P.C.

Case

Subject area
Due Process (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Amicus briefs
1 cert-stage

Order
Order list, June 20, 2023 · Certiorari denied

Proceedings

  1. Jun 20 2023
    Petition DENIED.
  2. Jun 08 2023
    Brief amici curiae of Pacific Legal Foundation and Owners' Counsel of America filed. (Distributed)
  3. May 30 2023
    DISTRIBUTED for Conference of 6/15/2023.
  4. May 24 2023
    Waiver of right of respondent Town of Underhill, Vermont, et al. to respond filed.
  5. May 08 2023
    Petition for a writ of certiorari filed. (Response due June 9, 2023)