Takings, torts and turmoil: reviewing the authority requirement of the Just Compensation Clause.

AuthorSilversmith, Jed Michael

Identifying a meaningful distinction between common law torts and constitutional takings is a task that has evaded courts for the last hundred years. Courts struggle to distinguish between these two remunerative remedies because both frequently arise under similar circumstances. Nonetheless, this article will show that the theoretical underpinnings of the Fifth Amendment are such that a plaintiff will only rarely suffer both a compensable taking and a tort. The article will posit that the primary difference between a tort and a taking is that the latter must be authorized. As a result, this article will focus on the authority requirement of the Fifth Amendment's Just Compensation Clause.

The Fifth Amendment provides that "private property [shall not] be taken for public use, without just compensation." (1) When the government takes property it may either affirmatively take the property, thereby exercising its power of eminent domain, or it may enact legislation or otherwise have its agents engage in conduct that effectively takes the property. This is called inverse condemnation. The Supreme Court has recognized that the government can inversely condemn property by means of a physical invasion (2) or by enacting an overreaching regulation. (3) Nevertheless, the government and its agents often engage in tortious conduct that is not tantamount to a constitutional taking. Although private parties can and do engage in tortious conduct against other private parties, their conduct cannot arise to the level of a constitutional violation. Just as a private individual can accidentally flood adjacent land, so too can the government. Similarly, government agents trespass on private property just as private actors trespass. Further, both private and public officials can act negligently. Although the legal remedy against the private party lies in tort, the government may be liable either under a tort theory or the Fifth Amendment's Just Compensation Clause. The victim of a government-induced wrong faces just that question--was his property tortiously destroyed or taken for purposes of the Fifth Amendment.

The first part of this article will examine the unique aspects of litigating against the government. Unlike a lawsuit filed against a private party, someone whose property was destroyed by government action may not plead tort and taking in his initial complaint. Rather, the property owner must pursue each theory in a different forum. These unique procedural hurdles stymie aggrieved plaintiffs.

Next, this article will examine when wrongful conduct by the government can be a taking. Specifically, this article will focus on the authorization requirement of the Fifth Amendment. In doing so, it will identify exactly what constitutes ultra vires--unauthorized--governmental action, and then differentiate between ultra vires conduct and authorized but illegal conduct.

The final two sections of this article will address the doctrinal differences between torts and takings. This article will compare the "natural and probable consequences" test with the concept of "proximate cause." In doing so, this article will show how most courts have followed a rule that only damage that occurs as a direct and certain result of governmental action can be a taking. This article will also examine how the courts, with few exceptions, have dismissed taking claims when the government's conduct arose out of mere negligence. Because courts require that a taking be intentional, the only overlap in this area is between intentional torts and takings. The final section of this article will focus on one distinction that courts have made between intentional torts and takings. Specifically, this article will explain how the courts have found that the more likely the event is to reoccur and the more substantial the damage, the more likely it will be a taking, not a tort. In sum, this article will clarify the overlap between torts and takings.



Before I discuss the doctrinal differences between takings and torts, it is important to note that recovering money damages from the government is fraught with procedural pitfalls. During the first half of the nineteenth century, "[t]he universally received opinion [was] that no suit [could] be commenced or prosecuted against the United States." (4) Rather, the primary avenue of relief for an aggrieved litigant was to obtain a private bill from Congress. (5) Neither private parties nor the United States received justice under this method of adjudicating claims. (6) First, private parties, particularly those who resided outside the District of Columbia, had the arduous burden of assembling a claim to present to a congressional committee. This task could include finding documents at the National Archives located in Washington D.C. and bringing witnesses there. "Moreover, when bills for relief in meritorious cases were reported, few of them were acted upon by either House, or, if passed by one, were not brought to a vote in the other House, and so fell at final adjournment, and if ever revived, had to be begun again before a new Congress and a new committee, and so on year after year and Congress after Congress." (7) The process also disadvantaged the government. The hearings themselves were ex parte matters as no counsel "appeared to watch and defend the interest of the government." (8) Some claimants used influential friends to speak with members of Congress in private, furthering an atmosphere of graft and corruption. (9)

In 1855, Congress enacted legislation that created the Court of Claims to make recommendations to Congress regarding claims of American citizens against the government. (10) In 1863, Congress gave the court jurisdiction to render a final judgment subject to review by the U.S. Supreme Court. (11) The bill, however, limited the court's jurisdiction to those claims "founded upon any law of Congress." (12) Congress rejected legislation that would have permitted the court to hear claims sounding in tort. (13)

  1. The Tucker Act

    In 1887, Congress enacted what has become the linchpin of the Court of Claims's jurisdiction-the Tucker Act. (14) By enacting the legislation, Congress created a forum for litigants to file takings claims against the federal government. Under the Tucker Act, the Court of Claims was the only legal body that could render a judgment against the United States for taking claims in excess of $10,000. (15) Congress also enacted the Little Tucker Act, which allowed federal district courts to enter judgments against the United States for claims of less than $10,000. (16) Although appeals from federal district court judgments were heard by their respective circuit court, decisions of the Court of Claims were only reviewed by the U.S. Supreme Court. (17)

    In 1982, Congress passed the Federal Courts Improvement Act. (18) The judges of the Court of Claims became circuit judges on the newly created Court of Appeals for the Federal Circuit. The court's trial commissioners became judges on a newly created Claims Court, which now had the authority to enter final judgments. In 1992, that court became the Court of Federal Claims. (19) Under the 1982 legislation, federal district courts still retained jurisdiction over claims that were less than $10,000, but the Federal Circuit now hears appeals of those cases. (20)

    The text of the Tucker Act provides that the

    Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded upon either the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages not sounding in tort. (21) Thus, the Court of Federal Claims now has jurisdiction regarding constitutional claims stemming from a clause of the Constitution which can be interpreted as money mandating. (22) The primary constitutional provision that provides such claims is the Takings Clause of the Fifth Amendment. (23) All takings claims filed against the federal government that exceed $10,000 must be filed in the Court of Federal Claims. Further, the Federal Circuit alone has appellate jurisdiction over claims arising under both the Tucker Act and the Little Tucker Act.

  2. The Federal Tort Claims Act

    Although Congress created a forum for individuals to assert breach of contract claims and taking claims against the government in 1887, individuals whose claims against the United States sounded in tort still had no judicial remedy. These individuals' only avenue of relief was still to obtain a private bill from Congress. By the 1940s, Congress was considering upwards of 2,000 private bills a year. (24) In 1946, Congress enacted the Federal Tort Claims Act ("FTCA"). (25) The FTCA waived sovereign immunity by making the United States liable to the same extent as a private individual for its tortious acts. (26) As a result of the FTCA, the federal government can be sued for many of the torts committed by its agents. (27)

    There are several procedural differences between a tort and a taking. Unlike takings, where the courts have developed a federal common law, under the FTCA, liability is determined under state law. (28) When a tort occurs on federal property, the state law where the property is located is controlling. (29) The waiver of sovereign immunity has some limits. The most notable exception is the discretionary function exception to the FTCA, which exempts:

    Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused...

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