(Photographer: Simon Dawson/Bloomberg)
Court of Federal Claims jurisdiction, Clean Water Act, online dating, Fifth Amendment taking and property rights. Which one of these terms doesn’t fit in a U.S. Supreme Court petition?
Trick question–they all do, according to two Washington solid waste disposal companies. The way the Supreme Court has interpreted a jurisdictional statute is similar to how dating websites create matches and certain federal courts should do the same.
Here's the who, what, when, where and why you should care:
In May, the U.S. will respond to a Supreme Court petition filed by operators of a Washington landfill. The Army Corps of Engineers denied their application for a Clean Water Act Section 404 dredge-and-fill permit after considering it for roughly six years.
Although the Ninth Circuit ruled that the corps did not have jurisdiction, and the companies opened the landfill in 1999, they maintained that the agency's extraordinary delay in acting on the permit amounted to a taking of their property.
They wrote that the Federal Circuit incorrectly interpreted Section 1500 of the Tucker Act, which sets forth the Court of Federal Claims jurisdiction, and Supreme Court precedent, when it affirmed the dismissal of their extraordinary takings claim.
What did the Federal Circuit do wrong? It didn’t treat the facts giving rise to the takings claim like a dating website would treat profile information when it creates matches. Wait, what?
Under 2011 Supreme Court precedent, a plaintiff who has a claim pending in a suit against the U.S. cannot file a claim for monetary damages in the CFC if the claims “are based upon substantially the same operative facts, regardless of the relief sought in each suit.”
“This Court’s ‘substantial overlap of operative facts’ test is analogous to the approach of analytic dating websites,” they wrote. “Those dating sites claim to collect and examine full detailed profiles of their members, and then assess compatibility by finding a substantial overlap of key traits (i.e., operative facts) that are most likely to provide longterm compatibility.”
Dismissing their takings claim based on a single seed fact, the denial of the permit, “would be similar to pairing two people up simply because they are both from California.” This is similar to a dating website failing to take into account that one person may be a Giants fan and the other a Dodgers fan or that they may not share religious beliefs and political leanings.
The Administrative Procedure Act claim is based on one set of facts and a takings claim rests on another set, according to the solid waste companies.
An anonymous legal editor, who has some online dating experience, told this blog that the argument has traction:
“This makes perfect sense to me. I appreciate that online dating sites base matches on multiple factors instead of just one. The fact that someone is from the same state as I am hardly says anything about that person. But if that person also shares similar tastes in movies, food and music, then maybe there’s a real match there. Why shouldn’t legal tests operate in the same way?”
By Lars Hedberg
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)