We’re in California, where we’re playing Lincoln Lawyer for a few days because in its infinite wisdom, the utility company has preemptively shut off power for one week due to the threat of wildfire inverse condemnation lawsuits. We’re actually playing Chevy Tahoe Lawyer, because we’re literally working out of a truck since that’s the only place with power, and we can at least drive to where there’s a (weak) connection to the developed world. 

But court deadlines don’t wait for California’s absurdities, so we do what we need to do.

And that includes filing this amicus brief in a case we’ve been following, Campbell v. United States. That’s the case in which a Federal Circuit panel held that the Tucker Act’s six-year statute of limitations in takings claims against the United States starts to run upon the taking, and “the taking may occur before the effect of the regulatory action is felt and the actual damage to the property interest is entirely determinable.”

Read that again if you didn’t get that: the clock starts ticking even before the plaintiff may even know they’ve been injured. The plaintiffs, whose claims were dismissed for filing the complaint a few days after the expiration of the statute of limitations, have sought panel and en banc rehearing, and we filed a brief on behalf of the Center for Auto Safety urging the court to grant rehearing.

Our brief argues that the panel’s approach can’t be right, because it missed the critical second part of statute of limitations analysis: when did the plaintiff know (or should have known) they were injured? In short, the panel imputed better knowledge of the Supreme Court’s horribly “storied but cryptic” regulatory takings doctrine to the plaintiffs than the Supreme Court admits it possesses (these are “ad hoc factual inquiries” for which there is no set formula). 

Check it out. Meanwhile, we’ll continue to live life on permanent airplane mode until California turns the lights back on. 

Brief Amicus Curiae of Center for Auto Safety, Campbell v United States, No. 18-2015 (Fed. Cir. Oct. 10, 20…