Johnathan H. Dinh, et al. v. United States

This Court has consistently held that, where the government authorizes a third party to take private property for public use, the government is liable for that taking.1 But the Federal Circuit has imposed a new (almost impossible to meet) additional burden on a plaintiff seeking to recover just compensation for a taking resulting from government-authorized, third-party actions: the plaintiff must show that the government also coerced the third party to take the property. 2 Because the Federal Circuit is the only court of appeals with jurisdiction to hear claims for Fifth Amendment Just Compensation against the United States, this new standard imposes a prohibitively onerous burden in takings suits against the United States, conflicting with this Court’s and the Federal Circuit’s prior rulings. 3

1. Can Cong ress insulate itsel f f rom Fi f th Amendment takings liability by creating a separate, third-party entity and authorizing that entity to “independently” take private property without paying for it?

2. See, e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

3. Dinh v. United States, 145 F.4th 1316, 1324–26 (Fed. Cir.

4. (Pet. App. 14a–16a).

5. See, e.g., Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (en banc); Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).