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In a ruling that is making waves throughout New Orleans, the United States Court of Appeals for the Federal Circuit reversed the federal government's liability, under a takings theory, for damage caused by the Hurricane Katrina flooding in St. Bernard Parish.

In short, the case alleged that the government's construction, and failure to properly maintain, the MRGO canal resulted in additional damage during Katrina. Significantly, the appellate court held that the government could not be held liable for its failure to maintain the canal and surrounding area.

Erroneous Salmonella Warning Not 'a Taking' Federal Cir. Affirms

Under the Takings Clause, the government is not allowed to take individual property for the benefit of the public without just compensation. What constitutes "a taking" has been the subject of debate since the very beginning ...

The Federal Circuit just affirmed a lower District court's decision that a salmonella warning does not amount to a government "taking." The lawyers who represented the growers in this case were really reaching on this one. It's a fine example of creative advocacy.

The Continued Dumping and Subsidy Offset Act's petition support requirement does not violate due process, the Federal Circuit ruled recently. That Act, also known as the Byrd Amendment, though in effect only briefly, allowed for the collection and distribution of duties on imported goods found to have been dumped into the U.S. market by foreign producers. Only domestic producers who supported the petition are allowed to receive the collected funds.

That petition support requirement, however, effected support decisions that were made before the law was passed. Thus, producers who did not support a petition were stopped from receiving antidumping duties, even though they had no prior warning that this would be the case. That was a reasonable requirement, the court found, one which rewarded producers for the support of the law.

You may remember back on 2008 when George W. Bush released a statement of the Government's intention to assist automakers in the midst of the economic downturn. As a result of the government assistance, two groups of former General Motors Corporation ("GM") and Chrysler LLC ("Chrysler") car dealers, whose franchises were terminated as a result of the bankruptcies, sued the Government alleging regulatory takings.

The Government's Financial Assistance

The franchise dealers have state and federal laws to protect them from terminations that are not available to them in bankruptcy proceedings. In reviewing GM and Chrysler's viability proposals, the Government specifically noted that the dealer terminations were not happening fast enough to maintain viability, and suggested bankruptcy, which the companies accepted.

Last week, the Federal Circuit granted a petition for a rehearing en banc, in a case that brings up interesting issues of individual, and corporate, liability. Harish Shadadpuri is the president and only shareholder of Trek Leather, Inc., a company that imported men's suits. Mercantile Electronics, LLC ("ME") was the consignee of the suits, and Shadadpuri also happens to own 40% of ME's shares.

Failure to "Assist"

Under 19 U.S.C. § 1401a, an "assist" includes materials, an item that Shadadpuri failed to include on customs documentation, with the result of lowering the amount of duties paid. When brought to his attention in 2002, Shadadpuri paid the unpaid duties, and Customs officials did not pursue an action against him personally.

In the latest battle of the Harmonized Tariff Schedule of the United States ("HTSUS"), Link Snacks, Inc. goes up against the U.S. as the two battle over the very meaning of ... beef jerky products.

What Is Beef Jerky Anyway?

Link Snacks, Inc. imports beef jerky products from New Zealand and Brazil. I've always stayed away from beef jerky because it looks nothing like beef -- but now that I understand the process, I understand why it looks that way, though I will still never eat it (barring unforeseen natural disasters that would necessitate the eating of beef jerky for survival).

The process goes something like this: the beef is sliced, cured for 24 to 48 hours, and then cooked/smoked for three-to six hours, which results in dehydrated meat. (Ew).

Rails to Trails Challenge Subject to Accrual Suspension Rule

A group of landowners in southern Arizona have been arguing for years that a Rails to Trails plan for a right of way on their property constituted a taking. So far, that litigation has enjoyed two tours through the Federal Circuit Court of Appeals.

This week, the appellate court ruled in its second opinion in the matter that the landowners can keep pushing their takings claims under the accrual suspension rule, despite the government’s claims that the action is time-barred.

Jerry McGuire v. U.S.: You Had Me at 'Regulatory Taking'

Occasionally, we get excited when perusing federal appeals because one of the litigants has a famous name. That excitement has manifested itself in posts about Joe the Plumber and David Bowie. (Not that David Bowie.)

So you can imagine our delight upon discovering a Federal Circuit appellant named Jerry McGuire. Even if his surname was spelled differently than the titular movie character.

Jerry McGuire leased a plot of farmland in Arizona from the Colorado River Indian Tribes (CRIT) with the approval of the Bureau of Indian Affairs (BIA). He planned to raise alfalfa on the land. McGuire's alfalfa dreams were dashed thanks to a BIA-owned bridge.

Navajo Nation v. U.S., 10-5036

Indian Tribe's Fifth Amendment Taking Claim

Navajo Nation v. U.S., 10-5036, concerned a challenge to the district court's dismissal of the complaint in concluding that plaintiff did not have the requisite property interest to establish a valid takings action, in an Indian Tribe's suit seeking damages for an alleged Fifth Amendment taking of its right to develop land granted to it by the United States in 1934.

Ladd v. US, 10-5010

Compensable taking claim against the United States

Ladd v. US, 10-5010, concerned a challenge to an order of the Court of Federal Claims granting summary judgment that no compensable taking occurred when the Department of Transportation's Surface Transportation Board (STB) issued a Notice of Interim Trail Use or Abandonment (NITU) concerning an easement over plaintiff's land.