Fifth Amendment Takings

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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding Fifth Amendment takings. * * * Governmental interference with property rights constitutes a taking if it "goes too far." Pa. Coal Co. v. Mahon, 260 U.S. 393, 412-15, 43 S.Ct. 158, 67 L.Ed. 322 (1922). The "Fifth Amendment's guarantee ... [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). The Supreme Court has recognized that there is no "'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Penn Central, 438 U.S. at 124, 98 S.Ct. 2646 (citing Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962)). The common touchstone of regulatory takings precedent is "to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). Reoforce, Inc. v. US, 853 F. 3d 1249 (Fed. Cir. 2017). * * * Deprivation of a property right, even if temporary, may merit just compensation under the takings clause. "[O]nce a court finds that a police power regulation has effected a 'taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the 'taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 328, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (quoting San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 658, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981)). This "reflect[s] the fact that 'temporary' takings which ... deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." First English Evangelical Lutheran Church of Glendale v. Cty. of L.A., 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Reoforce, Inc. v. US, ibid.

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