McGuire v. United States , 707 F.3d 1351 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
JERRY MCGUIRE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5073
______________________
Appeal from the United States Court of Federal
Claims in No. 09-CV-380, Senior Judge Bohdan A. Futey.
______________________
Decided: February 20, 2013
______________________
DAVID A. DOMINA, Domina Law Group PC, LLC, of
Omaha, Nebraska, argued for plaintiff-appellant.
THEKLA HANSEN-YOUNG, Environment & Natural Re-
sources Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. Of
counsel on the brief was IGNACIA S. MORENO, Assistant
Attorney General.
______________________
2 JERRY MCGUIRE v. US
Before DYK, PROST, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Circuit Judge REYNA concurs in the judgment.
DYK, Circuit Judge.
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 filed
this Fifth Amendment regulatory takings claim after the
BIA removed a bridge that he used to access portions of
the leased property. McGuire does not claim that removal
of the bridge was itself a taking, but rather that the BIA’s
alleged refusal to authorize replacement of the bridge was
a taking of his property rights. After trial the Court of
Federal Claims (the “Claims Court”) denied McGuire’s
regulatory takings claim. McGuire appeals. Because we
hold that McGuire’s regulatory takings claim never rip-
ened and that, even if McGuire’s claim had ripened, he
had no cognizable property interest, we affirm.
BACKGROUND
On January 1, 1995, McGuire signed a ten-year lease
with CRIT for a parcel of farmland in Parker, Arizona in
order to raise alfalfa. The lease was approved on behalf of
the BIA by Allen Anspach, superintendent of the BIA’s
Colorado River Agency, because the United States held
the land in trust for CRIT. A BIA canal (Lateral 19-R)
divided the leased property into two sections of approxi-
mately equal size.
Three bridges enabled farmers such as McGuire to
cross the canal. Two bridges were not on McGuire’s leased
property, and McGuire claimed no property interest
relating to those bridges. These were the Tenth Avenue
bridge, which was slightly southwest of the property; and
the FFA bridge, which was slightly northeast of the
property. The third bridge was involved in the claimed
JERRY MCGUIRE v. US 3
regulatory taking. This was the Eighth Avenue Bridge. It
was located between the northern and southern halves of
the leased property. It was not located on the leased
property, but inside a right-of-way owned by the BIA.
Though it is not known who constructed the bridge or
when it was built, the bridge had been in existence since
at least the 1960’s or 1970’s.
Approximately three years into the lease, in 1998, the
BIA became concerned that the Eighth Avenue Bridge
was unsafe, and the BIA informed McGuire that the
bridge would be removed. McGuire in turn informed CRIT
(the lessor of his property) that the BIA intended to
remove the bridge, and CRIT wrote to Anspach on De-
cember 9 and December 23, 1998 “requesting [that]
removal of the bridge be delayed” and noting that “remov-
al of th[e] bridge would place a hardship on Mr. McGuire.”
J.A. PX 18; PX 20. Anspach responded on December 24,
1998, noting that the Eighth Avenue Bridge “was not
built or authorized by the [BIA], . . . was put in at an
undetermined time without any construction specifica-
tions or without [BIA] approval . . . [i]n direct violation of
25 CFR 171.9 [which requires a permit to build such
structures],” and posed “a potential hazard to anyone that
uses it.” J.A. PX 20. The letter indicated that “[the BIA]
will remove this bridge during dry up 2000.” Id. It rea-
soned that “[t]his w[ould] give [McGuire] time to comply
with 25 CFR 171.9,” a regulation that, as will be described
in more detail below, required an application for a permit
to build a new bridge that encroached on the BIA right-of-
way over the canal. Id.
Soon thereafter, the BIA formally notified McGuire of
the impending bridge closure and removal and of his duty
to apply for a permit to replace the bridge. On February 5,
1999, Anspach wrote McGuire to “inform [him] of [the
BIA’s] intent to remove the unsafe and unauthorized
wooden bridge across canal 19R which runs to [his] leased
lands.” J.A. PX 21. The letter stated that the bridge would
4 JERRY MCGUIRE v. US
be closed during dry up 2000 and, referencing 25 C.F.R. §
171.9, advised McGuire that “[i]f [he] should decide that
[he] need[s] to bridge the canal in order to operate [his]
farm [he] may submit to . . . Agency Superintendent
[Anspach] plans, with specifications, for a new bridge and
apply for a crossing permit.” Id. Anspach sent McGuire a
similar letter on August 25, 1999, explaining that it
“remain[ed] [the BIA’s] intent” to remove the bridge while
reiterating that McGuire would need “to submit the
required documentation” under 25 C.F.R. § 171.9. J.A. PX
22.
Rather than apply for a permit under § 171.9,
McGuire filed suit against the BIA in tribal court on
October 12, 1999, where he alleged breach of contract and
condemnation claims; specifically, he alleged that the BIA
failed to abide by certain requirements under § 171.9
(that it failed to issue permits and supply proper forms);
and that the BIA “cut-off reasonable ingress and egress to
over half of the leased premises in violation of section 17”
of the lease. J.A. PX 23, Compl. ¶ 11. McGuire further
alleged that “the demand made by the [BIA] would re-
quire that a new bridge be installed at [McGuire’s] ex-
pense,” and that this would constitute a breach of the
lease. Id. ¶ 12-13. There is no record of any judgment
issued by the tribal court.
Around the same time McGuire pursued his claim in
tribal court, McGuire also engaged in correspondence with
the BIA regarding possible replacement of the bridge.
Specifically, McGuire discussed a replacement bridge with
both Jeffrey Hinkins (Supervisory General Engineer) and
Ted Henry (Irrigation Systems Manager). During these
conversations, McGuire may have produced an informal
handwritten sketch of a proposed bridge design, but
copies of these plans apparently no longer exist. McGuire
testified that these conversations, which occurred in the
“summer to late summer” of 1999, J.A. 141, were suffi-
cient to apply for a permit under § 171.9 to build a new
JERRY MCGUIRE v. US 5
bridge. The BIA deemed these efforts insufficient, as
Anspach again wrote McGuire on November 12, 1999,
stating that “[w]e again encourage you to apply for a
permit to replace the current structure with one that
meets our design and safety requirements,” referencing 25
C.F.R. § 171.9. J.A. PX 24. The BIA barricaded the bridge
in November 1999 and removed it in January 2000.
McGuire, after attempting to farm the property for
several months without access to the Eighth Avenue
Bridge, refused to make his January 2000 lease payment
to CRIT. Eventually the lease was cancelled by CRIT
because of McGuire’s failure to make lease payments. A
new tenant, William Alcaida, began leasing the property
in January 2001. Alcaida submitted a written request to
the BIA for a permit to replace the bridge which detailed
the design and materials for the bridge. After the submis-
sion was revised to provide additional information, Al-
caida’s application was deemed sufficient by the BIA.
Alcaida received a permit to replace the Eighth Avenue
Bridge in January 2002, and built a replacement bridge
immediately thereafter.
After McGuire’s lease was cancelled, McGuire began
to pursue his remedies in federal court, filing for Chapter
11 bankruptcy relief in the District Court for the District
of Arizona on June 15, 2001. This initiated a complex
procedural history. On November 13, 2001, as part of the
bankruptcy proceeding, McGuire brought his takings
(inverse condemnation) claim against the government.
The government moved to dismiss the case for lack of
subject matter jurisdiction (on the ground that such a
claim belonged in the Claims Court), but the district court
held that jurisdiction was proper. The bankruptcy court
then conducted a trial on April 14 and 15, 2005, and the
court recommended that McGuire be awarded
$1,132,059.60 as compensation for a regulatory taking of
the Eighth Avenue Bridge. The district court rejected the
bankruptcy court’s recommendation on April 5, 2006,
6 JERRY MCGUIRE v. US
holding that McGuire’s claim never ripened because
“McGuire never availed himself of t[he] permit process”
under 25 C.F.R. § 171.9(c) and that “[t]he fact that the
permit process was nebulous d[id] not amount to a denial
of a permit.” See McGuire v. United States, No. 05-CV-
2694, slip. op. at 11 & n.7 (D. Ariz. Apr. 5, 2006).
McGuire then appealed to the Ninth Circuit, which
held that jurisdiction had been improper in both the
district court and the bankruptcy court. See McGuire v.
United States, 550 F.3d 903, 910 (9th Cir. 2008). Because
McGuire’s takings claim fell within the scope of the Tuck-
er Act (and was a claim for over $10,000), jurisdiction was
proper only in the Claims Court. Id. at 911. Therefore, the
Ninth Circuit transferred the case to the Claims Court
pursuant to 28 U.S.C. § 1631. Id. at 914.
Despite determining that it lacked jurisdiction, the
Ninth Circuit chose to reach the ripeness issue as a
matter of “judicial economy and courtesy” to the Claims
Court. McGuire, 550 F.3d at 910 n.3. On this issue, it
disagreed with the district court, noting that “the BIA did
not follow a formal permitting process.” Id. at 909. In the
Ninth Circuit’s view, McGuire complied with the prevail-
ing BIA permitting practice by “discuss[ing] the bridge
removal and plans for a new bridge several times with
Henry and Hinkins” during 1999, and drawing “a sketch
of a design for a new bridge with Hinkins.” Id. In the
Ninth Circuit’s view, McGuire “did everything reasonably
within his power . . . to build a new [bridge],” and his
takings claim was therefore ripe. Id.
The Claims Court received the transferred case on
June 10, 2009. See McGuire v. United States, 97 Fed. Cl.
425, 428 (2011). McGuire continued to assert that he had
a property interest that gave him the right to replace the
JERRY MCGUIRE v. US 7
bridge. 1 The government again moved both to dismiss for
lack of ripeness and moved for summary judgment on the
takings claim on the ground that McGuire lacked a cog-
nizable property interest. See id. On ripeness, the Claims
Court noted that it may have “reach[ed] a different deci-
sion” on the ripeness question if it had been “called on to
look at [the] issue anew,” but it held “that the decision of
the Ninth Circuit is the law of the case” and that, under
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800(1988), there were not “extraordinary circumstances” that
justified disturbing the Ninth Circuit’s ripeness determi-
nation. McGuire, 97 Fed. Cl. at 435-37. With respect to
the summary judgment motion, the Claims Court held
that no categorical taking occurred, but that genuine
issues of material fact precluded summary judgment on
McGuire’s regulatory takings claim. Id. at 443.
The Claims Court held a bench trial from September
13 to 15, 2011. After trial, the Claims Court reaffirmed
that the case was ripe for adjudication because the Ninth
Circuit’s decision on ripeness was the law of the case. See
McGuire v. United States, No. 09-380L, 2012 WL 569359,
at *5-6 (Fed. Cl. Feb. 22, 2012). On the regulatory takings
issue, the court held that McGuire failed to establish that
he had a compensable property interest in the Eighth
Avenue Bridge, thus defeating any takings claim. Id. at
*14. McGuire timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
1 He has also asserted a right to repair the bridge
but never sought from the BIA authority to repair the
bridge and, as the Claims Court concluded, the BIA
regulations appear not to deal with the issue of repair.
See McGuire v. United States, No. 09-380L, 2012 WL
569359, at *12 (Fed. Cl. Feb. 22, 2012) (noting that “[t]he
applicable regulations do not mention even once a right to
repair crossings like the Eighth Avenue Bridge”).
8 JERRY MCGUIRE v. US
DISCUSSION
We review the Claims Court’s determination with re-
spect to ripeness de novo. See Morris v. United States, 392
F.3d 1372, 1375 (Fed. Cir. 2004) (citing Heck & Assocs. v.
United States, 134 F.3d 1468, 1471 (Fed. Cir. 1998)). The
issue of whether McGuire held a compensable property
interest is also a “purely legal question” that we review de
novo. Tex. State Bank v. United States, 423 F.3d 1370,
1378 (Fed. Cir. 2005) (citing Webb’s Fabulous Pharm., Inc.
v. Beckwith, 449 U.S. 155, 161 (1980)).
I
We turn first to ripeness, which is a “threshold con-
sideration[]” that we must resolve before addressing the
merits. Palazzolo v. Rhode Island, 533 U.S. 606, 618
(2001).
A
Initially we must determine whether we are bound by
the Ninth Circuit’s ripeness decision. As noted above, the
Ninth Circuit addressed ripeness in its opinion as a
matter of “courtesy” to the Claims Court. We conclude
that we are not bound by the Ninth Circuit’s ripeness
decision because the Ninth Circuit lacked authority to
decide the question, which was a prudential inquiry not
necessary to the transfer decision.
The transfer statute, 28 U.S.C. § 1631, authorizes
courts, upon finding a “want of jurisdiction,” to transfer
cases to a court where the action “could have been
brought.” The legislative history of the statute clarifies
that § 1631 “authorize[s] the court in which a case is
improperly filed to transfer it to a court where subject
matter jurisdiction is proper.” See S. Rep. No. 97-275, at
30 (1981). The underlying purpose of the statute is to
enable courts to transfer a case to an appropriate forum if
the case has been brought in the wrong jurisdiction. Thus,
in Christianson, the Supreme Court determined that
JERRY MCGUIRE v. US 9
jurisdiction in the Federal Circuit was improper (and that
jurisdiction in the Seventh Circuit was proper) where
Christianson’s antitrust claims did not arise under the
patent laws. See 486 U.S. at 809-10. In that case, the
“litigants [were] bandied back and forth helplessly be-
tween two courts, each of which insist[ed] the other has
jurisdiction.” Id. at 818. The Court emphasized that “[t]he
courts of appeals should . . . adher[e] strictly to principles
of law of the case” in making jurisdictional determina-
tions under 28 U.S.C. § 1631, so as to “encourage . . .
quick settlement of questions of transfer.” Id. at 819. This
would “obviate the necessity for [the Supreme Court] to
resolve” future comparative jurisdictional disputes. Id.
There is no question here that the Central District of
California, and hence the Ninth Circuit, lacked jurisdic-
tion over this case because it involved a monetary claim
against the government within the exclusive jurisdiction
of the Claims Court. While McGuire had previously
agreed that the Ninth Circuit did not need to decide the
ripeness question before transfer, he now argues that
§ 1631 requires that the transferee court was a court in
which the “case could have been brought.” Under Ninth
Circuit authority transfer requires a determination that
the transferee court would have jurisdiction. See Hose v.
I.N.S., 180 F.3d 992, 996 (9th Cir. 1999). Because ripe-
ness, in McGuire’s view, is a jurisdictional question, the
Ninth Circuit was correct to decide that question before
transfer.
Even accepting arguendo the Ninth Circuit’s view
that a determination must be made as to the transferee
court’s jurisdiction, McGuire’s problem is that ripeness in
the exhaustion context is not a jurisdictional question. 2
2 The government urges that the statute’s reference
to “could have been brought” refers only to comparative
jurisdiction, i.e., whether Congress allocated jurisdiction
10 JERRY MCGUIRE v. US
The Supreme Court has made clear that many inquir-
ies, while labeled “jurisdictional,” are actually not juris-
dictional inquiries. See, e.g., Union Pac. R. R. Co. v. Bhd.
of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjust-
ment, Cent. Region, 130 S. Ct. 584, 596 (2009) (noting that
the word jurisdiction has been used to convey “too many”
meanings). Accordingly, the Court has clarified that “the
term ‘jurisdictional’ properly applies only to ‘prescriptions
delineating the classes of cases (subject-matter jurisdic-
tion) and the persons (personal jurisdiction) falling within
a court’s adjudicatory authority.’” Kontrick v. Ryan, 540
U.S. 443, 455 (2004); see also Reed Elsevier, Inc. v. Much-
nick, 130 S. Ct. 1237, 1243 (2010). And “[o]ther rules, even
if important and mandatory, . . . should not be given the
jurisdictional brand.” Henderson ex rel. Henderson v.
Shinseki, 131 S. Ct. 1197, 1203 (2011).
Here, the ripeness inquiry engaged in by the Ninth
Circuit was not a jurisdictional inquiry. The ripeness
inquiry concerns whether McGuire ripened his regulatory
takings claim by exhausting his administrative remedies.
The Court has held that the exhaustion requirement of
Title VII (requiring complainants to file a timely charge of
discrimination with the Equal Employment Opportunity
Commission (EEOC) before proceeding to court) is nonju-
risdictional. See Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). In Suitum v. Tahoe Reg’l Planning
Agency, 520 U.S. 725, 734 (1997), the Court similarly
concluded that exhaustion requirements associated with
“regulatory takings claim[s]” are “prudential hurdles,” not
jurisdictional ones. 3 The Ninth Circuit itself stated here
over the particular type of case to the transferor or trans-
feree court. We need not decide that question here.
3 In Suitum, the Court also noted that the govern-
ment “d[id] not question that Suitum properly present[ed]
a genuine ‘case or controversy’ sufficient to satisfy Article
JERRY MCGUIRE v. US 11
that it decided ripeness as a “courtesy” and that the
ripeness issue was “arguably prudential, rather than
jurisdictional.” McGuire, 550 F.3d at 910 n.3.
Because the ripeness inquiry here was purely pruden-
tial, it was not necessary or appropriate for the Ninth
Circuit to decide the ripeness question and its ruling is
not entitled to “law of the case” treatment under Chris-
tianson. To be sure, the Supreme Court stated in Chris-
tianson that the law of the case doctrine “applies as much
to the decisions of a coordinate court in the same case as
to a court’s own decisions.” 486 U.S. at 816 (citing Kori
Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d
649, 657 (Fed. Cir. 1985); Perkin-Elmer Corp. v. Com-
putervision Corp., 732 F.2d 888, 900-01 (Fed. Cir. 1984)).
But as the cases cited by the Supreme Court demonstrate,
the Court was referring to a situation in which the trans-
ferring court had made merits rulings before it lost juris-
diction. The cases involved a unique situation where
future appeals in patent cases went to the Federal Cir-
cuit, and the question was whether the Federal Circuit
was bound by the earlier regional circuit rulings, rendered
when the regional circuit had jurisdiction. Here, the
Ninth Circuit never had jurisdiction.
As our predecessor court determined, “when a suit is
dismissed for lack of jurisdiction, rulings on the merits
rendered prior to the dismissal are nullities, void ab
initio,” and such rulings “are entitled to no weight . . . as
III, but maintain[ed] only that Suitum’s action fail[ed] to
satisfy [the Court’s] prudential ripeness requirements.”
520 U.S. at 733 n.7. We have occasionally characterized
the ripeness issue as jurisdictional. See, e.g., Morris v.
United States, 392 F.3d 1372, 1374 (Fed. Cir. 2004);
Simmons Oil Corp. v. Testoro Petroleum Corp., 86 F.3d
1138, 1141 (Fed. Cir. 1996). But all of those cases either
predated Suitum or referred to pre-Suitum cases for the
proposition without discussing Suitum.
12 JERRY MCGUIRE v. US
law of the case.” Hydaburg Coop Ass’n v. United States,
667 F.2d 64, 66 (Ct. Cl. 1981); see also Christopher Vill.,
L.P. v. United States, 360 F.3d 1319 (Fed. Cir. 2004)
(when a court acts beyond its jurisdiction by intruding in
the exclusive jurisdiction of the Claims Court, its judg-
ment is void). Thus, we are not bound to follow the Ninth
Circuit’s ripeness determination.
B
Because we are not bound by the Ninth Circuit’s ripe-
ness determination, we next consider whether the takings
claim is ripe. As the Supreme Court has held:
[T]he very existence of a permit system implies
that permission may be granted, leaving the land-
owner free to use the property as desired. . . . Only
when a permit is denied and the effect of the de-
nial is to prevent “economically viable” use of the
land in question can it be said that a taking has
occurred.
United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 127 (1985). Thus, the Supreme Court has established
that a property-holder must obtain “a final decision
regarding how it will be allowed to develop its property”
before pursuing a regulatory takings claim. Williamson
Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 190 (1985). This is necessary because the relevant
inquiry under Penn Central Transportation Company v.
New York City, 438 U.S. 104 (1978), requires the court to
evaluate “the economic impact of the challenged action
and the extent to which it interferes with reasonable
investment-backed expectations,” factors which “simply
cannot be evaluated until the administrative agency has
arrived at a final, definitive position regarding how it will
apply the regulations at issue to the particular land in
question.” Williamson, 473 U.S. at 191; see also MacDon-
ald, Sommer, & Frates v. Yolo Cnty., 477 U.S. 340, 348
(1986) (“A court cannot determine whether a regulation
JERRY MCGUIRE v. US 13
has gone ‘too far’ unless it knows how far the regulation
goes.”). There is no dispute that “when an agency provides
procedures for obtaining a final decision, a takings claim
is unlikely to be ripe until the property owner complies
with those procedures.” Morris, 392 F.3d at 1376. We
consider whether there was such a permitting process
and, if so, whether McGuire exhausted his administrative
remedies by filing a permit application and securing a
final decision on his permit application.
As to the first question, there was a permitting pro-
cess available to McGuire that would have enabled him to
replace the bridge. The relevant regulation, 25 C.F.R. §
171.9(c), provided:
[S]tructures crossing or encroaching on project
canal . . . rights-of-way which are needed for pri-
vate use may be constructed privately in accord-
ance with plans approved by the Officer-in-Charge
or by the project. . . . Such structures will be con-
structed and maintained under revocable permits
on proper forms . . . .
§ 171.9(c) (emphases added). The permitting process here
was informal rather than formal. Although the govern-
ment never provided McGuire with a written form listing
the requirements of a written submission, a permitting
process existed. McGuire was referred to the process of
§ 171.9 on numerous occasions, and he was told to submit
written plans with specifications. Thus the process, albeit
informal, required something in writing from McGuire.
The informal nature of the procedures does not allow
McGuire to escape the exhaustion requirement. In Estate
of Hage v. United States, 687 F.3d 1281, 1290 (Fed. Cir.
2012), we held that a claim for compensation under 43
U.S.C. § 1752(g) (a statute allowing for “reasonable com-
pensation” for cancelled grazing permits) was not ripe
despite the fact that there was “‘no clear procedure’ for
how [the plaintiffs] could seek compensation” under the
14 JERRY MCGUIRE v. US
statute. Hage, 687 F.3d at 1290. There, the plaintiffs had
failed to “request a determination by the Secretary [of the
Interior] of the value of [certain] improvements” as re-
quired by the statute. Id. Notwithstanding the lack of
clear procedures, the court held that the Hages, not the
government, had the burden of demonstrating ripeness,
and by failing to request a determination had not done so.
See id. at 1291. McGuire, similarly, has such a burden,
notwithstanding the ambiguous and informal nature of
the permitting process contemplated by the regulation.
Because an informal permitting process existed, we
next address whether McGuire availed himself of that
process and exhausted his administrative remedies. As
noted above, the regulations required the submission of
plans, which the BIA reasonably interpreted to require a
written submission.
McGuire, however, never submitted a written permit
application or plans to reconstruct the bridge. The subse-
quent lessor, in contrast, submitted a written application
to replace the Eighth Avenue Bridge, and the BIA issued
a final decision allowing him to build a new bridge over
the canal based on that application. McGuire’s claim fails
on account of ripeness on this basis alone.
McGuire contends that his informal meetings, oral
communications with Hinkins, and written sketch were
sufficient to constitute a permit application, and that the
BIA led him to believe that he had complied with the
permit application requirement.
McGuire testified that he thought he had submitted a
permit application in the “summer to late summer” of
1999. J.A. 141. He contends that he drew a sketch of a
bridge design in Hinkins’ presence and discussed his
plans. Based on the sketch and conversations, McGuire
“th[ought] that [the BIA] had what they needed.” J.A. 147.
He believed that:
JERRY MCGUIRE v. US 15
Mr. Anspach in his letter [of August 25, 1999] said
to take it up with Mr. Hinkins. We looked at a
bridge design. [Hinkins] said he ran the calcula-
tions on the pipe sizes and it should be sufficient
for the flow that that canal needs and he would
talk to Mr. Anspach.
J.A. 147. Hinkins, however, disagreed with McGuire’s
characterization. Hinkins testified that, “[o]ther than
maybe writing something in my office somewhere on a
piece of paper, [there were] no written communication[s].”
J.A. 181. Hinkins specifically stated that a permit re-
quires “sufficient information for us to be able to generate
a permit for the construction or placement of some kind of
structure within our irrigation project.” J.A. 182. He
stated that, “at a minimum, we need some kind of an idea
of the materials that are going to be used, and how they
are going to be used, and where they are going to be
used.” J.A. 182. Hinkins testified that “[there was] noth-
ing that [Hinkins] would deem as sufficient to go forth
and issue a permit on.” J.A. 182.
McGuire admitted that when he met with Mr. Hin-
kins, Hinkins neither granted nor denied McGuire per-
mission to build the bridge. Moreover, McGuire never
testified that the deciding official (Anspach) had ever
agreed that sufficient information had been provided. And
McGuire did not claim that final action was taken. In-
deed, the November 12, 1999, letter made clear that
McGuire’s claimed submission had not been adequate;
and that the BIA had reached no final decision. 4 The
4 The November 12, 1999 letter stated that “[t]his
decision is being made to limit the liability of the United
States and to protect the public and is final for the De-
partment of Interior,” J.A. PX 24, but the final decision
referred to was the decision to close the bridge for safety
reasons, not any decision on an alleged permit application
to replace the bridge. This was conceded by McGuire’s
16 JERRY MCGUIRE v. US
November 12, 1999, letter from Anspach stated that “[w]e
again encourage you to apply for a permit,” J.A. PX 24,
making clear that the agency believed at that point that
an application had not yet been submitted. McGuire
admitted that he failed to submit a written plan thereaf-
ter, conceding that he did not submit “any other plans to
the BIA in writing after receipt of th[e] November 1999
letter.” J.A. 141; see also McGuire, 2012 WL 569359, at *6
(noting that McGuire “never submitted any documenta-
tion to the BIA after receiving [the November 1999]
letter”).
“Where further administrative process could reasona-
bly result in a more definite statement of the impact of
the regulation, the property owner is generally required to
pursue that avenue of relief before bringing a takings
claim.” Morris, 392 F.3d at 1376. The only exception to
the Morris rule occurs “in the limited circumstance in
which the administrative entity has no discretion regard-
ing the regulation’s applicability and its only option is
enforcement.” Greenbrier v. United States, 193 F.3d 1348,
1359 (Fed. Cir. 1999). 5 That was not the case here: the
BIA had continued discretion to review, evaluate, and
approve a proper application, as it did with McGuire’s
successor.
McGuire has also not proven futility with respect to
his administrative efforts. The futility exception to the
“final decision rule” only “excuse[s] a property owner from
submitting ‘multiple applications when the manner in
which the first application was rejected makes it clear
that no project will be approved.’” Wyatt v. United States,
counsel at oral argument, who admitted that the letter
was not referring to a final action on a permit application.
5 Similarly, we held in Heck v. United States, 134
F.3d 1468, 1472 (Fed. Cir. 1998), that “dismissal of [an]
application as incomplete was not a final decision or a
decision on the merits.”
JERRY MCGUIRE v. US 17
271 F.3d 1090, 1097 (Fed. Cir. 2001) (quoting Heck, 134
F.3d at 1472). The November 12, 1999, letter made clear
that McGuire could submit an application to the BIA, and
he did not do so. To the extent that the letter implied that
any application that had been submitted was incomplete,
this only reiterated that McGuire needed to do more to
exhaust his remedies. Additionally, there was no “con-
structive denial” here resulting from “extraordinary
delay,” as McGuire also asserts.
In sum, McGuire had a burden to pursue the available
administrative remedies, and to secure a final decision
from the agency. He failed to do so. McGuire’s claim thus
fails for lack of ripeness.
II
Even if McGuire’s regulatory takings claim had
ripened, it fails on the merits. We apply a two-part test in
assessing regulatory takings claims. See Acceptance Ins.
Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009).
First, “the court determines whether the claimant has
identified a cognizable Fifth Amendment property inter-
est that is asserted to be the subject of the taking.” Id.
Second, “if the court concludes that a cognizable property
interest exists, it determines whether that property
interest was ‘taken,’” applying the well-known Penn
Central test. Id. We conclude that the Claims Court did
not err in concluding that McGuire lacks the necessary
property interest. See Skip Kirchdorfer, Inc. v. United
States, 6 F.3d 1573, 1580 (Fed. Cir. 1993) (noting that the
“plaintiff must show a legally-cognizable property inter-
est”).
In assessing whether McGuire has the requisite prop-
erty interest, we must look for “‘crucial indicia of a prop-
erty right,’ such as the ability to sell, assign, transfer, or
exclude.” Hearts Bluff Game Ranch, Inc. v. United States,
669 F.3d 1326, 1330 (Fed. Cir. 2012) (quoting Conti v.
United States, 291 F.3d 1334, 1342 (Fed. Cir. 2002)).
18 JERRY MCGUIRE v. US
Here, McGuire presents several theories as to why he
had a cognizable property interest. He argues that he had
a property interest because (1) the CRIT lease provided
him with access rights to the bridge; (2) BIA regulations
conferred rights allowing him to replace the bridge; (3) he
had an easement by necessity in the bridge; and (4) his
investment-backed expectations created a property inter-
est in accessing the bridge. 6 Insofar as McGuire complains
that he had a property right in accessing the bridge, his
claim is not that removal of the bridge itself was a taking,
but rather that the removal of the bridge gave rise to a
right to replace it. For example, he admitted that his
6 Though McGuire’s brief in places seems to argue
that McGuire owned the bridge, such an argument is
waived as the only property interests that McGuire as-
serted in the Claims Court were unrelated to ownership.
See McGuire, 2012 WL 569359, at *7. McGuire submitted
no evidence that he owned the bridge. Although Rodney
McVey, acting superintendent of the BIA, may have told
McGuire that the bridge was McGuire’s, see id. at *8, we
recently made clear that “relying on representations by [a
government agency] . . . does not create a compensable
property interest,” Hearts Bluff, 669 F.3d at 1332.
Additionally, though McGuire argues that ownership
of the bridge defaulted to him because neither the BIA nor
CRIT purported to own the bridge, the BIA never dis-
claimed ownership of the bridge. The letter that McGuire
cites to suggest that the BIA disclaimed ownership of the
bridge merely states that the bridge was located “on
irrigation canal rights-of-ways.” J.A. PX 20. Notably
McGuire did not assert a physical takings claim with
respect to the bridge. See McGuire, 97 Fed. Cl. at 437 n.27
(noting that although McGuire had briefly argued a
physical takings claim in oral argument in front of the
Claims Court, the issue was never briefed and discussion
of the issue was therefore “unnecessary”).
JERRY MCGUIRE v. US 19
claim was that the “BIA could [have] order[ed] [the
bridge] taken out for safety reasons, but this gave rise to a
right to replace the structure. BIA thwarted McGuire’s
replacement efforts.” Appellant’s Br. 11. He also described
his claim as that “the right to rebuild . . . w[as] taken,”
and admitted that “he does not contend he was entitled to
keep an unsafe bridge in place.” Appellant’s Br. 28.
A
McGuire contends that paragraphs 9, 10, and 17 of
the lease provide him with a property rights to replace the
bridge. The lease does not mention the Eighth Avenue
Bridge. The provisions on which McGuire relies reference
“improvements.” Paragraph 9, entitled “improvements,”
indicates that improvements are “attached [to the leased
property]” and that these improvements “shall at the
option of LESSOR, remain on said premises after the
termination of this Lease and thereupon become the
property of LESSOR.” J.A. PX 01 ¶ 9 (emphasis added).
Paragraph 10 notes that “LESSEE shall, at all times
during the term of this Lease and at LESSEE’S sole cost
and expense, maintain the premises and all improve-
ments thereon and . . . repair [those improvements]. . . .” 7
J.A. PX 01 ¶ 10. McGuire asserts that these lease provi-
sions gave him a property interest with respect to the
bridge. McGuire, however, has not demonstrated that the
bridge was an improvement that was “attached” to the
leased property. As the Claims Court noted, “McGuire
[did] not present[] any evidence to show that CRIT [the
lessor] possessed the bridge, which was located ‘inside the
19-R Canal, and inside the BIA right of way.’” McGuire,
2012 WL 569359, at *9 (quoting J.A. 163) (emphasis
added).
7 McGuire’s brief misidentifies paragraph 10 as
paragraph 11.
20 JERRY MCGUIRE v. US
McGuire also argues that Paragraph 17 of the lease
conveys a property interest allowing him to access the
bridge. Paragraph 17 states that McGuire “shall, at all
reasonable times, be allowed ingress and egress to the
leased premises over existing roadways under the posses-
sion and control of LESSOR.” J.A. PX 01 ¶ 17 (emphasis
added). But the lessor, again, was CRIT, and CRIT nei-
ther “possessed” nor “controlled” the bridge because the
bridge was inside the BIA right-of-way.
B
McGuire also argues that several regulations, such as
25 C.F.R. §§ 162, 169, and 171 (1999), gave him a cog-
nizable property interest in replacing the bridge. McGuire
first cites 25 C.F.R. § 162.9 (1999), which states that
“[i]mprovements placed on the leased land shall become
the property of the lessor [CRIT] unless specifically ex-
cepted therefrom under the terms of the lease.” Id. (em-
phasis added). This is no different from Paragraph 9 of
the lease (discussed above), which merely indicates that
ownership of improvements attached to the property
defaulted to the lessor (CRIT). McGuire has not shown
that the bridge was an improvement on his leased proper-
ty.
McGuire also argues that he had a right to apply for a
permit to replace the bridge under other regulations,
including § 171.9. Section 171.9 concerns only the right to
apply for a “revocable permit.” The other regulations
similarly allow revocation of any rights granted by the
government. See 25 C.F.R. § 169.13 (1999) (“applicant for
a right of way”); id. §§ 169.18, 169.5 (noting that rights of
way are granted only where “individual applications” for
such rights of way are filed with the BIA). The right to
apply for a revocable permit is not in and of itself a prop-
erty interest. Indeed, even such a permit is not a property
JERRY MCGUIRE v. US 21
interest. 8 See Hearts Bluff, 669 F.3d at 1331 (noting that
where a property interest “would not exist without . . .
enabling government regulations” requiring permits,
“discretionary denial [of such permits] cannot be a cog-
nizable property interest”); Am. Pelagic Fishing Co. v.
United States, 379 F.3d 1363, 1380 (Fed. Cir. 2004) (hold-
ing that there was no cognizable property right in fishing
where fishing rights were subject to revocable permits
and therefore “a matter of governmental permission,
rather than a property right”); Mitchell Arms, Inc. v.
United States, 7 F.3d 212, 217 (Fed. Cir. 1993) (holding
that expectations arising from revoked import permits did
not constitute a cognizable property right).
C
McGuire also argues that he is entitled to an ease-
ment by necessity in the Eighth Avenue Bridge. Our case
in Palmyra Pacific Seafoods L.L.C. v. United States, 561
F.3d 1361 (Fed. Cir. 2009) governs this issue. Though an
easement by necessity “has been recognized as a compen-
sable property interest,” id. at 1370, no such easement
existed here. Palmyra noted that “a regulation that
prevents a property owner from accessing private property
would implicate a cognizable property interest for purpos-
es of the Fifth Amendment.” Id. at 1371 (emphasis add-
ed). Thus, all means of access to the property must be cut
off by the regulation to warrant a cognizable easement of
necessity. See Laney v. United States, 661 F.2d 145, 149
(Ct. Cl. 1981) (“[I]f his access to his block on all four sides
is cut off, that is a taking, and if authorized is compensa-
ble under the just compensation clause.”).
8 McGuire points out that, in Hearts Bluff, we em-
phasized that when a landowner has a property interest,
denial of a revocable permit can be a taking. See 669 F.3d
at 1329. McGuire, however, has not shown the existence
of a property interest.
22 JERRY MCGUIRE v. US
In Palmyra, the court determined that there was not
a regulatory taking because “[t]here [wa]s nothing in the
regulation that by its terms restrict[ed] the plaintiffs’
right to cross [a] refuge to reach their base of operation on
[an] island.” 561 F.3d at 1371. Here, much like Palmyra,
the removal of the bridge did not restrict McGuire’s
ability to access the northern half of his property, as
shown by the fact that he farmed on the property for
several months after the bridge had been barricaded. See
McGuire, 2012 WL 569359, at *12. He could access his
property by both the Tenth Avenue Bridge and the FFA
Bridge, both of which were owned by CRIT and were open
to the public. “The new tenant farmed the northern por-
tion of the Leased Property during 2001 using the FFA
Bridge, the Tenth Avenue Bridge, and the Levee Road.”
Appellee’s Br. 12. The Claims Court determined that
“McGuire could still access his property from the north
via Levee Road, or from either side by driving along the
canal banks.” McGuire, 2012 WL 569359, at *12. We do
not find clear error in these factual findings. 9 It was only
because McGuire did not find production without the
Eighth Avenue Bridge to be economically viable that he
abandoned his lease and filed his complaint, not because
he was physically cut off from accessing the property.
D
Finally, McGuire suggests that his expectations that
he would be able to continue to use the bridge somehow
created a property interest. But “hopes and expectations
of future property use are not in and of themselves a
9 McGuire argues that use of these roads constitut-
ed an illegal trespass, but McGuire’s use of these roads for
several months belies that claim, given that these roads
were on the BIA right-of-way, the BIA was aware of these
alternative routes, and the BIA allowed and expected
McGuire to use them.
JERRY MCGUIRE v. US 23
cognizable property interest.” Hearts Bluff, 669 F.3d at
1332.
* * *
Because McGuire cannot establish that he had a
cognizable property interest in the use of the Eighth
Avenue Bridge, his regulatory takings claim fails. See
Conti, 291 F.3d at 1339 (“[I]f a claimant fails to demon-
strate that the interest allegedly taken constituted a
property interest under the Fifth Amendment, a court
need not even consider whether the government regula-
tion was a taking under the analysis set forth in Penn
Central.”).
CONCLUSION
McGuire has failed to demonstrate that his suit is ripe
for adjudication. Even assuming that McGuire’s claim is
ripe, McGuire has failed to demonstrate that he had a
cognizable property interest that would support a regula-
tory takings claim.
AFFIRMED
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
______________________
JERRY MCGUIRE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-5073
______________________
Appeal from the United States Court of Federal
Claims in case no. 09-CV-380, Senior Judge Bohdan A.
Futey.
______________________
DAVID A. DOMINA, Domina Law Group PC, LLC, of
Omaha, Nebraska, argued for plaintiff-appellant.
THEKLA HANSEN-YOUNG, Environment & Natural Re-
sources Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. Of
counsel on the brief was IGNACIA S. MORENO, Assistant
Attorney General.
______________________
REYNA, Circuit Judge, concurring.
I agree with the majority that Mr. McGuire has not
demonstrated that he had a cognizable property interest
to support his takings claim, and that the Court of Feder-
al Claims’ judgment should be affirmed. I write separate-
2 JERRY MCGUIRE v. US
ly to express my disagreement with the majority’s deci-
sion to disregard the Ninth Circuit’s holding that this case
was ripe on the grounds that “it was not necessary or
appropriate for the Ninth Circuit to decide the ripeness
question.” Majority Op. at 11.
“[T]he doctrine [of the law of the case] posits that
when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent
stages in the same case. This rule of practice promotes
the finality and efficiency of the judicial process by pro-
tecting against the agitation of settled issues.” Christian-
son v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16
(1988) (internal citations and quotation marks omitted).
The doctrine applies to decisions of coordinate courts, id.
at 816, and, despite the duty of a court to satisfy itself of
its jurisdiction, the doctrine applies even to jurisdictional
decisions. See, e.g., Texas Am. Oil Corp. v. U.S. Dep’t of
Energy, 44 F.3d 1557, 1561-62 (Fed. Cir. 1995) (applying a
“plausibility” framework to find that the Fifth Circuit’s
jurisdictional ruling was the law of the case); Doko Farms
v. United States, 861 F.2d 255, 256-57 (Fed. Cir. 1988)
(declining to examine jurisdiction again when the ques-
tion was close and the Fifth Circuit’s decision was “plau-
sible”).
At least with respect to coordinate or subordinate
courts, however, the doctrine of the law of the case does
not limit a court’s power. Christianson, 486 U.S. at 817.
To the contrary: “A court has the power to revisit prior
decisions of its own or of a coordinate court in any circum-
stance, although as a rule courts should be loathe to do so
in the absence of extraordinary circumstances . . . .” Id.
(quoting Arizona v. California, 460 U.S. 605, 618 n.8
(1983)). Thus, the doctrine should apply except “when the
case for departure is exceptionally clear, either because
the controlling law has changed or the earlier decision is
clearly erroneous and would lead to manifest injustice.”
JERRY MCGUIRE v. US 3
See Mendenhall v. Barber-Greene Co., 26 F.3d 1573, 1582
(Fed. Cir. 1994).
In Christianson, the Supreme Court examined the law
of the case doctrine in the context of 28 U.S.C. § 1631, the
transfer statute. See 486 U.S. at 815-23. There, a plain-
tiff had appealed his antitrust claims to the Federal
Circuit. Id. at 806. Because the antitrust claims did not
arise under patent law, this court concluded that it was
without jurisdiction and transferred the case to the Sev-
enth Circuit. See id. The Seventh Circuit, reaching the
opposite conclusion, transferred the case back to the
Federal Circuit. Id. at 807. This court again concluded
that it was without jurisdiction but, in the “interest of
justice,” decided the case on the merits. Id.
The Supreme Court granted certiorari and vacated
our decision. The Court concluded that although the
antitrust claims involved patents, they did not arise
under patent law, and jurisdiction did not lie in the
Federal Circuit. See id. at 811-13. Colt attempted to
evade this result by arguing that the Federal Circuit was
prohibited from revisiting the Seventh Circuit’s jurisdic-
tion decision because that decision was the law of the
case. See id. at 815. The Court rejected this argument for
three reasons. First, the Federal Circuit was the first
court to decide the issue of jurisdiction, making its deci-
sion the law of the case. Id. at 817. Second, even if the
Seventh Circuit’s decision had been the law of the case,
the Federal Circuit had not exceeded its authority by
revisiting the issue once it determined that the Seventh
Circuit’s decision was clearly wrong. Id. Finally, of
course, the Supreme Court itself was not bound by the
jurisdictional decisions of either circuit. Id.
This case differs only slightly from Christianson. As
in Christianson, we must decide whether a coordinate
court’s decision to transfer is the law of the case. Unlike
Christianson, however, the decision to transfer is not
4 JERRY MCGUIRE v. US
itself in dispute. Instead, the issue is whether we are
bound by the Ninth Circuit’s decision that this case was
ripe. The majority views this question as unrelated to the
decision to transfer, and concludes that it is not the law of
the case. I disagree.
When a court concludes that it is without jurisdiction
in a civil action, section 1631 requires that the court
“shall, if it is in the interest of justice, transfer such action
or appeal to any other such court in which the action or
appeal could have been brought.” As the majority correct-
ly observes, the issue of ripeness in this case is a pruden-
tial consideration. See Suitum v. Tahoe Reg’l Planning
Agency, 520 U.S. 725, 734 (1997). It was therefore not
necessary to the determination of whether the district
court or the Ninth Circuit had jurisdiction. But whether
jurisdiction exists is only the first part of the inquiry
under § 1631.
“The statute confers on [a court] the authority to
make a single decision upon concluding that it lacks
jurisdiction—whether to dismiss the case or, ‘in the
interest of justice,’ to transfer it.” Christianson, 486 U.S.
at 818 (quoting 28 U.S.C. § 1631). Once the Ninth Circuit
concluded that the district court lacked jurisdiction over
the takings claim, it squarely confronted that question.
The court stated that it addressed ripeness because it
“consider[ed] it a predicate to transferring the case to the
Court of Federal Claims” and because ripeness was the
basis for the district court’s judgment below. McGuire v.
United States, 550 F.3d 903, 910 n.3 (9th Cir. 2008). The
court believed it “would be inappropriate to transfer a
case that [it] did not consider ripe.” Id. Because it con-
cluded that the case was ripe, it elected to transfer the
case rather than to dismiss it. Id. at 914-15.
The majority is therefore incorrect that “the Ninth
Circuit lacked authority to decide” the ripeness question.
Majority Op. at 8. Once the court concluded that jurisdic-
JERRY MCGUIRE v. US 5
tion was appropriate in the Court of Federal Claims, not
the district court, ripeness—at least as it related to “the
interest of justice” in transferring the case—was the only
issue the Ninth Circuit had authority to address. The
Ninth Circuit’s conclusion that the case was ripe therefore
became the law of the case, and the Court of Federal
Claims, as well as this Court, was free to disregard it only
if, under the framework elucidated in Christianson, it
determined that that conclusion is clearly erroneous.
The majority errs in failing to apply that framework
here. Nevertheless, by deciding that the case in fact was
not ripe, the majority implicitly decides that the Ninth
Circuit’s conclusion was clearly erroneous. I disagree
with this implicit conclusion. In any event, the majority
correctly concludes that McGuire’s claim must fail due to
his lack of a cognizable property interest. This alone is
dispositive and requires this court to affirm, and I there-
fore concur in the judgment.