Brief of Amici Curiae Takings and Federal Courts Scholars in Support of Respondents, Knick V. Township of Scott, No. 17-647 (U.S.)

Abstract

The question presented in this case is whether a property owner may file a federal taking claim in federal court without first seeking compensation under state law in state court. This brief responds to two points in the United States’ brief as amicus curiae. The Solicitor General suggests that the Court should exercise jurisdiction over petitioner’s state-law inverse condemnation claim under 28 U.S.C. § 1331. The Court should reject this suggestion. This case is not in the “special and small category of cases” in which a state law cause of action is held to “arise under” federal law. See Gunn v. Minton, 568 U.S. 251, 258 (2013) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). The Solicitor General also raises the possibility that petitioner may pursue a claim directly under the Fourteenth Amendment in federal court. The Court should not decide this complex question here because it was not aired in the lower courts and because Pennsylvania law provides petitioner a statutory cause of action to recover compensation. See 26 Pa. Cons. Stat. Ann. § 502(c) (2006). If the Court opts to address this issue, it should hold that petitioner may not pursue a cause of action directly under the Fourteenth Amendment. Implying a cause of action under Section 1 of the Fourteenth Amendment would conflict with Section 5, which delegates authority to enforce the Amendment to Congress. Even if Section 1 provides a cause of action in some circumstances, it does not in cases like the one at bar in which state law provides an adequate means of redress.

Keywords: 28 USC 1331, federal question jurisdiction, Fourteenth Amendment, takings, Williamson County