Anticipatory Remedies for Takings

IF 3.5 2区 社会学 Q1 LAW Harvard Law Review Pub Date : 2015-04-01 DOI:10.7916/D8J38S3X
T. Merrill
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引用次数: 1

Abstract

INTRODUCTION Litigating takings claims under the U.S. Constitution involves pitfalls not encountered in ordinary constitutional litigation. With respect to takings claims against the federal government, just compensation can ordinarily be awarded only by the Court of Federal Claims (CFC), an "Article I" court located in Washington, D.C. (1) The CFC, however, has no authority to grant equitable or declaratory relief. (2) Consequently, claimants who wish to advance claims enforced by injunctions or declaratory judgments (for example, that the government action was arbitrary and capricious) must seek relief in an Article III court. This means claimants must often split their claims between two courts, giving rise to tricky questions of timing and preclusion. If they file in the wrong court, or get the sequencing wrong, consideration of the takings claim may be foreclosed. (3) Congress could clean up the mess by rewriting the relevant jurisdictional statutes, but has failed to act. (4) With respect to federal takings claims against state and local governments, the Supreme Court has held that such claims must be initially presented to state courts before they can be heard in federal court. (5) Any legal and factual issues that are resolved by the state courts, however, cannot be relitigated in a subsequent challenge in federal court. (6) Since federal and state takings clauses are generally interpreted the same way, this gives rise to what has been aptly called a "trap." (7) Although federal constitutional claims ordinarily can be tried in federal court under 42 U.S.C. [section] 1983, (8) takings claims, because they must be initially presented to state courts, are generally barred from being considered by any federal court other than the U.S. Supreme Court on certiorari from the final state court decision, which is rarely granted. This Essay argues that these pitfalls of litigating federal takings claims rest, in significant part, on an erroneous understanding about the scope of federal judicial authority under the Takings Clause. Starting from the premises that the Constitution does not prohibit takings but only requires that they be compensated, (9) and that compensation can be awarded only in a court in which the government has waived its sovereign immunity, (10) the Supreme Court has concluded--sometimes--that federal courts of general jurisdiction have no authority to consider takings claims as long as an action for compensation is available elsewhere. On other occasions however--and usually without acknowledging the inconsistency--the Court has reviewed takings claims without requiring that they first be submitted to the court having authority to award just compensation. The latter line of authority, although poorly theorized by the Court, is the correct one. There is no rule of law that prevents federal courts of general jurisdiction from adjudicating claims that arise under the Takings Clause --as long as they confine themselves to the question whether there has been a taking that entitles the owner to compensation. Given sovereign immunity, however, any actual award of compensation against the federal government or one of the states (as opposed to a local government) must be made by a court having jurisdiction to render such a judgment. The vehicle for allowing federal courts to consider takings claims, even if they have no authority to award just compensation, is what I call an anticipatory remedy. (11) The primary type of remedy I have in mind is a declaratory judgment, authorized by the Declaratory Judgment Act of 1934. (12) In appropriate circumstances, federal courts of general jurisdiction should be able to entertain claims that a federal or state government unit is proposing to engage in action that would constitute a taking, and if so, to issue a declaration that compensation would be required if the government persists. Anticipatory remedies could also take other forms besides declaratory judgments. …
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对征收的预期救济
根据美国宪法提起的征收索赔诉讼涉及在普通宪法诉讼中不会遇到的陷阱。对于针对联邦政府的征收索赔,公正的赔偿通常只能由联邦索赔法院(CFC)裁定,该法院是位于华盛顿特区的“第一条”法院。(1)然而,CFC无权授予衡平法或宣告性救济。(2)因此,希望通过禁令或宣告性判决(例如,政府的行为是任意和反复无常的)提出索赔的索赔人必须在第三条法院寻求救济。这意味着索赔人必须经常在两个法院之间分割他们的索赔,从而产生了时间和排除的棘手问题。如果他们向错误的法院提交申请,或者排序错误,征收索赔的考虑可能会被取消。(3)国会可以通过重写相关的司法法规来清理混乱局面,但却未能采取行动。(4)关于针对州和地方政府的联邦征收要求,最高法院认为,这种要求必须先提交给州法院,然后才能在联邦法院审理。(5)然而,任何由州法院解决的法律和事实问题,不能在随后的联邦法院的质疑中重新提起诉讼。(6)由于联邦和州征收条款通常被以同样的方式解释,这就产生了被恰当地称为“陷阱”的现象。(7)尽管根据《美国法典》第42卷第[节]1983条,联邦宪法索赔通常可在联邦法院审理,但(8)征收索赔,由于必须首先提交给州法院,一般禁止由除美国最高法院以外的任何联邦法院根据州法院最终裁决的调卷进行审理,这种情况很少得到批准。本文认为,提起联邦征收索赔诉讼的这些陷阱在很大程度上取决于对征收条款下联邦司法权力范围的错误理解。从《宪法》不禁止征用,而只是要求对征用进行补偿的前提出发,(9)并且只有在政府放弃其主权豁免的法院才能给予补偿,(10)最高法院有时得出结论,只要在其他地方可以提出赔偿诉讼,具有一般管辖权的联邦法院就无权考虑征用索赔。然而,在其他情况下(通常不承认这种不一致),法院审查了征收索赔,而不要求首先将其提交给有权给予公正赔偿的法院。后一种权力路线,虽然法院的理论化很差,但却是正确的。没有任何法律规则可以阻止具有一般管辖权的联邦法院对根据征收条款产生的索赔进行裁决——只要它们限于是否存在使所有者有权获得赔偿的征用问题。然而,鉴于主权豁免,对联邦政府或其中一个州(而不是地方政府)作出的任何实际赔偿裁决,必须由具有作出这种判决管辖权的法院作出。允许联邦法院考虑征用索赔的工具,即使他们没有权力给予公正的赔偿,我称之为预期救济。(11)我心目中的主要救济类型是1934年《宣告性判决法》授权的宣告性判决。(12)在适当的情况下,具有一般管辖权的联邦法院应能够受理联邦或州政府单位拟采取构成侵占的行动的主张,如果是这样,则应发布声明,说明如果政府坚持这样做,将要求赔偿。除宣告性判决外,预期救济还可以采取其他形式。…
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来源期刊
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2.90
自引率
11.80%
发文量
1
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