“Whether the novel Federal Circuit ‘but for’ defense to takings liability conflicts with Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (categorical defenses are barred in takings cases), Horne v. Dept. of Agric., 576 U.S. 351 (2015) (hypothetical analysis is not permitted to bar takings liability), Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (ad hoc balancing factors are required in regulatory takings cases), and Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002) (regulatory takings requirements may not be imported into direct takings cases), as reiterated in Cedar Point Nursery v. Hassid, 210 L.Ed.2d 369 (2021)?”
“Whether the dismissal of the direct takings claims that were not even defended by the Government—on a ground it never raised departs—so far from the accepted and usual course of judicial proceedings that the exercise visory power is justified because it contradicts the controlling precedents of United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020) (party presentation rule), Day v. McDonough, 547 U.S. 198 (2006) (entitlement to be heard before a court rules upon defenses it injected for the Government), and Murr v. Wisconsin, 137 S.Ct. 1933 (2017) (fairness is required in takings cases)?”
“Whether the affirmance of the economic valuation decisions conflicts with the holding of Mission Product Holdings Inc. v. Tempnology LLC, 139 S.Ct. 1652 (2019) (franchisee rights are not rendered worthless by rejection in bankruptcy) and Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) (proof of fair market value is not required in cases of economic emergency)?”
