Weekly litigation report — March 22, 2019

PLF asks the U.S. Supreme Court to show some love for Love Terminal
Last week, PLF filed an amicus brief urging the U.S. Supreme Court to grant review of a critically important regulatory takings case. The case, Love Terminal Partners v. United States, has a long a history, which is summarized here and detailed here. In short, Congress enacted a law that barred Love Terminal from using its passenger terminal for commercial air travel at a regional airport near Dallas. The Court of Federal Claims concluded that the regulations resulted in a taking of the terminal property and awarded $133 million in just compensation. The Federal Circuit, however, reversed the compensation award, reasoning that Love Terminal had no measurable property interest in the multi-million dollar terminal because Congress had barred any productive use of the property. Based on that circular reasoning, the court concluded that a regulation that bars all use of property cannot result in a compensable taking where the property has no value. PLF’s amicus brief asks the U.S. Supreme Court to review this case because the Federal Circuit’s reasoning undermines the fundamental understanding that the government cannot regulate property out of existence. Thus, courts cannot measure the value of property by the very terms of the offending regulation. Indeed, a rule that allowed courts to do so would perversely incentivize the government to avoid takings liability by imposing the most onerous restrictions possible on private property—which the regulatory takings tests are designed to police against.

Trademarks and free speech
This week, PLF filed an amicus brief at the Supreme Court in Iancu v. Brunetti. In this case, the United States Patent and Trademark office denied registration of a trademark for an unconventionally named clothing brand because the government examiner found the mark to be “scandalous” and offensive. Because Supreme Court precedent rightly limits the government’s ability to restrict speech on the basis of viewpoint and content, PLF filed a brief asking the Court to apply the strictest scrutiny in cases such as this. Strict scrutiny is appropriate here because whether trademarks are registered, and receive the valuable corresponding benefits, shouldn’t depend on the subjective and inconsistent views of government employees. For more on the case and our brief, read our blog.