Argument Preview

Again, five cases being argued in April at the Federal Circuit attracted amicus briefs. One of those cases is Jenkins v. United States, a takings case. In this case, the Federal Circuit will review a determination by a district court that Jenkins was not entitled to compensation for the loss of his vehicles seized during a criminal investigation. This is our argument preview.

Jenkins in his opening brief first argues “neither this Court—nor the Supreme Court—has ever held that th[e] limited police-power exception displaces the federal government’s categorical just compensation obligation when [an] investigation ends and no forfeiture proceeding begins.” He contends “[t]he magistrate erred in concluding otherwise.” Relatedly, he maintains, the Federal Circuit “cannot affirm without creating a new exception that directly contradicts the plain text of the Constitution, as well as binding precedent.” In the alternative, Jenkins asserts, if he “did not state a takings claim, then his claims had to sound in due process.” He argues the “Little Tucker Act waives sovereign immunity for due-process claims seeking to recover from the United States for property illegally or improperly exacted.” And, he argues, “[t]hat waiver applies regardless of whether the Due Process Clause is money mandating.”

In its response brief, the government begins by arguing “[t]here is no waiver of sovereign immunity under the Little Tucker Act for any claims arising from a constitutional right, statute, or regulation that is not ‘money mandating.'” As a result, the government maintains, the “United States can only be sued under the terms Congress has set forth, and the Little Tucker Act creates no separate, substantive right for recovery for alleged due process violations.” Further, it contends, “Jenkins failed to raise an illegal exaction claim in the district court and this Court should decline to entertain this new theory.” The government also asserts the Federal Circuit “should . . . affirm the district court’s determination that Jenkins cannot establish relief under a Fifth Amendment Takings Clause violation.”

Jenkins, in his reply brief, argues “[t]he United States owes Mr. Jenkins just compensation for its physical appropriation of his property.” Moreover, he contends, his “claims also sound in due-process protections, as the United States and magistrate recognized below,” and “the Little Tucker Act’s illegal-exaction waiver provides an alternative avenue to recover for the United States’ deprivation of property.”

The Human Rights Defense Center filed an amicus brief in favor of Jenkins. The brief argues Jenkins “should have been afforded the much higher procedural protections required for criminal defendants under Federal Rule of Criminal Procedure 41, because the government did not seek to dispossess him of his property through civil forfeiture.”

Professors Julia D. Mahoney and Ilya Somin also filed an amicus brief in favor of Jenkins. Their brief argues “there is no blanket ‘police-powers’ exception to the Takings Clause.” And, they assert, the “history of the Takings Clause shows that a government’s exercise of its police powers can be a taking and, indeed, that there is no clear line between a police-power taking and eminent domain.”

This case will be argued on Friday, April 7. We will report on any developments.