Earlier this month, the Federal Circuit released its opinion in Ligado Networks LLC v. United States, a takings case we have been following because it attracted two amicus briefs. In this case, the court considered an interlocutory appeal from the Court of Federal Claims presenting questions related to a radio license issued under the Communications Act. In an opinion authored by Judge Taranto and joined by Judges Moore and Stoll, the panel affirmed in part, vacated in part, and remanded in part. This is our summary of the opinion.
Judge Taranto began by laying out the factual and procedural background:
In April 2020, the Federal Communications Commission (Commission or FCC) . . . granted to Ligado . . . authority to provide certain wireless services using specified radio frequencies (spectrum) . . . . The Commission granted the authorization [(license)] . . . despite opposition . . . from the National Telecommunications and Information Administration (NTIA) . . . representing the telecommunications interests of non-FCC federal agencies such as the Department of Defense (DoD) . . . . But the Commission expressly made the grant of authority conditional on Ligado’s meeting various conditions, which included certain specified coordination with non-FCC federal agencies (including, as especially relevant here, DoD). . . . The conditions were supplemented by Congress on January 1, 2021, which made Ligado’s ability to offer service even more dependent on decisions by DoD.
In October 2023, Ligado filed an action against the United States in the Claims Court under the Tucker Act . . . . The complaint focused on what we summarize, for present purposes, as two forms of government action assertedly effecting a taking: (a) use of the spectrum at issue by DoD itself; and (b) noncooperation by DoD, NTIA, and Commerce with Ligado’s efforts to meet the conditions for commencing service.
The government moved to dismiss on jurisdictional and merits grounds . . . but . . . the Claims Court mostly disagreed with the government’s contentions. . . . In January 2025, the government asked the Claims Court to certify that four issues met the standard for interlocutory appeal . . . : (1) whether the Claims Court has subject-matter jurisdiction under the Tucker Act; (2) whether the actions of the non-FCC federal agencies alleged to effect a taking were authorized; (3) whether Ligado has a property right for Takings Clause purposes against the non-FCC federal agencies and their challenged actions; and (4) whether DoD use of the spectrum could constitute a physical taking if Ligado had a property right and DoD use was authorized.
In February 2025, the Claims Court granted the government’s motion to certify the interlocutory appeal. . . . The government then petitioned this court for permission to appeal the interlocutory order. . . . Ligado opposed the petition, while, in the alternative, cross-petitioning for interlocutory review of the Claims Court’s dismissal of the legislative-taking claim. In May 2025, we granted the government’s petition for interlocutory appeal and denied Ligado’s cross-petition.
Turning to his analysis, Judge Taranto first addressed “whether the Communications Act displaces the Claims Court’s jurisdiction under the Tucker Act.” He explained that the Tucker Act “provides the Claims Court jurisdiction to adjudicate a takings claim against the United States” unless Congress has created a specific remedial scheme that displaces it. He distinguished this case from prior cases that “actually challeg[ed] decisions of the Commission, for which Congress had specified review mechanisms in the Communications Act.” Here, he emphasized, there is nothing “in [Ligado’s] takings claim that depends on a challenge to a Commission action.” Because “the essential requirement for finding displacement” is missing, Judge Taranto concluded that the Claims Court retained jurisdiction.
Judge Taranto next considered “whether Ligado alleged authorized government conduct.” He explained that a valid takings claim requires that “‘the Government action at issue must be authorized.'” While he also noted that “a government action cannot be deemed a taking ‘because the Government acted unlawfully,’” he rejected the government’s argument that Ligado’s claim depended on “asserting the illegality of some of the challenged actions by the non-FCC federal agencies.” He interpreted the complaint “at least implicitly to plead authorization as required by its takings claim.”
Judge Taranto then turned to the central issue in the appeal: “whether Ligado has a property interest in the license to provide certain radio services using the spectrum at issue.” He explained that a takings clause claim requires a property right that “ha[s] its source outside the Taking Clause.” Here, he noted, “the only potential basis for the property right asserted is the federal government grant—the Commission’s 2020 Order.” After distinguishing the “precedents on which Ligado principally relies,” he emphasized “‘[t]he policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license.'” Judge Taranto noted that Ligado attempted to overcome this principle by arguing related “statements mean merely that a licensee has no property right against the Commission.” Ligado, he said, argued “the statements do not preclude a claim of property right against others—including non-FCC federal agencies.”
Judge Taranto explained that “[d]etermining whether Ligado has the claimed property right, for takings purposes, calls for a full understanding of the Communications Act and pertinent actions under it.” But on this point, he observed, “[w]ith respect to the statutory context and also with respect to the particulars of the FCC actions, the parties have spoken at too high a level of generality to produce a clear understanding of the legal details that could make an important difference to the answer to the property-right question.” Thus, Judge Taranto “flag[ged] certain matters that warrant more attention” on remand, including statutory matters and case-specific matters.
After cautioning that the Court’s identification of relevant issues is tentative and not exhaustive, Judge Taranto outlined several statutory areas that warrant further examination: (a) Basic Provision on Spectrum Licenses; (b) Commission Allocation and Licensing; (c) Transfer, Revocation, Modification; (d) Federal Use; and (e) Remedy Provisions. He stated that the case “required . . . closer attention to the case-specific Commission actions at issue, which have been described to date at too high a level of generality.” In particular, he identified several actions for further analysis, including whether Ligado’s assertion that the Commission’s 2020 Order granted it “an ‘exclusive’ right to use the frequencies at issue” is accurate; even if so, how “the actions and decisions by the Commission that led up to the 2020 Order” bear on that claim; “the relationship between FCC and NTIA authorities over non-Federal and Federal uses”; and the significance of the alleged “failure [of federal agencies] to cooperate . . . [with] Ligado” for it to satisfy the conditions necessary to commence service.
Finally, Judge Taranto addressed “whether . . . the alleged DoD use of the spectrum covered by Ligado’s license comes within the category of ‘physical takings.'” He similarly declined to decide this issue, explaining “the issue might not have to be addressed on remand if the Claims Court holds that Ligado lacks a property right at all” and that, in any event, the physical-taking analysis “depend[s] on the specific character of any property right identified through the closer analysis of the property right question we require.”
As a result, the panel affirmed the lower court’s determinations that jurisdiction exists and that authorized conduct was adequately alleged. But the panel vacated the lower court’s conclusions regarding the existence of a property right and the viability of a physical-taking claim. In the end, the court remanded the case for further proceedings.