“Never Today!” — Alice In Wonderland Goes to Washington

As our readers know, we often take admiring looks at our colleague’s blog www.inversecondemnation.com because Robert Thomas who runs that blog covers developments in the courts to an extent we don’t. We just took such a peek, and wow! Don’t miss his latest posts having to do with court decisions that, given the nature of this field, are replete with almost indescribable procedural twists and turns that suggest to an unbiased mind that some of what goes on in this field of law cannot come down from on high as decision-making rendered in good faith. Catch this conclusion at the end of the Thomas’ description of the Jerry Maguire case (Fed. Cir. No. 12-5073, Feb. 20, 13):

“Thus, the end result (assuming there’s not a cert petition) of this odyssey is that Maguire has been through six courts, two trials and two appeals, and years of litigation, only to be told ‘you’re too early.’ ” Maguire v. U.S.,

The same sort of thing happened in the wretched Hage case that wended its way through the cours for decades, only to end years after the unfortunate Wayne Hage’s death, with a holding that he sued too early. And in the Tahoe-Sierra Preservation Council  case the owners (who had been forbidden to build anything on their land) were shuttled between the federal trial and appelate courts for 20 years so that some fifty of them died while this went on, only to be told by the Supreme Court in the end that all that was unnecessary because there was no real factual dipute and the case presented only  an issue of law.

The doctrine of ripeness is supposed to assure efficiency in adjudication; it supposedly spares the courts and parties unnecessary litigation. But it ain’t so. Some of this stuff is transparently devised to serve as an obstacle course designed to frustrate, not facilitate, a prompt and fair resolution of disputes that involve uncompensated takings of property. If you examine what passes for takings law, you’ll notice that there seem to be as many (or more) cases going on about the timeliness of the plaintiff-property-owner’s filing of his lawsuit as there are cases dealing with the merits of the controversy. 

A while back, Justice Scalia observed in a law review article that to have a rule of law we must first have a law of rules that are discernible. But instead, to stick with Justice Scalia’s metaphor, our law in this field emulates the practice of Roman Emperor Nero who first promulgated decrees and then ordered that they be posted around the city on poles so high that nobody could read them.  Here, what we get too often is stuff, in which no one, including the courts, can tell up front when the aggrieved party should sue and what he must do before filing suit. There are even cases in which the courts have held simultaneously that the owner sued too early and also that he sued too late in the same case.

So instead of Justice Scalia’s sensible observation about the need for discernible law, what we have is a frequent reenactment of the line from “Alice in Wonderland” where the Queen of Hearts says to Alice: “You could have had jam on your toast yesterday, and you can have it tomorrow, but never today.”

Sorry  folks,  but whatever this may be, it isn’t law. At least not law that deserves the trespect of the citizenry. Courts in general and the U.S. Court of Federal Claims in particular, are instituted to provide a reasonably fair-minded and impartial resolution of disputes  between people and the government, not this sort of doctrinal and moral mish-mash. We read a while back that there is an inscription in the Justice Department in Washington that says: “The United States wins when justice is done to its citizens.” Not any more; not in this wretched field.

 

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