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The Pro Bono Program assists the Court by facilitating the appointment of pro bono counsel to represent pro se litigants. Pro Bono Panel members will, at the Court’s invitation, be appointed in civil appeals that, for example, present issues of first impression, complex facts or legal questions, or potentially meritorious claims warranting further briefing and/or oral argument.

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Please see the attached order amending Rule 32.4



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Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
 
We will accept written comments for consideration on the proposed change through November 15, 2016: 
 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
or send comments electronically to Changes@ca5.uscourts.gov 

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The Daily Commentary (sample)

Sample case reviewed on June 20, 2017.
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Sammons v. United States No. 17-50201

http://www.ca5.uscourts.gov/opinions/pub/17/17-50201.0.pdf

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

AFFIRMED. (June 19, 2017).

Posted in Constitutionality, Sovereign Immunity, Subject Matter Jurisdiction, Taking, Tucker Act

 

Michael Sammons, proceeding pro se, brought a takings claim against the United States. The District Court concluded that, under the Tucker Act, Sammons was required to pursue his claim in the Court of Federal Claims (“CFC”), so it dismissed for want of subject-matter jurisdiction. Sammons’s appeal contended that the Tucker Act is unconstitutional because it requires him to litigate his claim in an Article I Court.

Congress created the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) to provide, among other things, liquidity to the residential mortgage market. During the financial crisis of 2008, the two entities faced a sharp reduction in the value of their assets. In response, Congress passed the Housing and Economic Recovery Act of 2008, which created the Federal Housing Finance Agency (“FHFA”) and empowered it to act as conservator of Fannie Mae and Freddie Mac. Shortly after the FHFA placed the enterprises into conservatorship, the Treasury Department purchased $1 billion of preferred stock in each entity. That “Senior Preferred Stock” enjoyed preference as to all other preferred stock and was entitled to an annual cumulative dividend equal to ten percent of the money given to the enterprises from the Treasury. In 2012, the FHFA and the Treasury amended the stock-purchase agreement to change the dividend to one hundred percent of the current and future profits of the enterprises.

Sammons, as holder of $1 million in noncumulative preferred shares in Fannie Mae and Freddie Mac, filed suit on the contention that the 2012 amendment permanently deprived him of the economic value of his preferred shares. He thus asserted that the amendment amounted to a regulatory taking and that he was entitled to $900,000 in just compensation. His appeal came after the District Court granted the Government’s motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In granting the motion, the District Court reasoned that the Tucker Act vests exclusive jurisdiction for takings claims over $10,000 in the CFC. 28 U.S.C. § 1491(a)(1).

The Tucker Act provides that “[t]he United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). It does not “create substantive rights, but [is] simply [a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law.” United States v. Bormes, 133 S. Ct. 12, 17 (2012). Under the Tucker Act, the CFC has exclusive jurisdiction over claims against the United States for more than $10,000. Sammons conceded as much, but attempted to circumvent that limitation by attacking the Tucker Act, theorizing that it violates Article III by vesting the power to hear Constitutional takings claims in the CFC, an Article I Court.

There are several classes of cases that Congress can permissibly assign to non-Article III Courts. One includes cases involving “public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Stern v. Marshall, 564 U.S. 462, 489–90 (2011) (quoting Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S. 272, 284 (1855)). One way a right can be “public” is if it is asserted against the United States in its sovereign capacity, such that the Government has immunity. Id. at 489. In such circumstances, “Congress may set the terms of adjudicating a suit when the suit could not otherwise proceed at all.” Stern, 564 U.S. at 489.

Accordingly, this dispute reduced to whether the United States, in the absence of the Tucker Act, had sovereign immunity over takings claims. If it did, then Congress could attach conditions to its Tucker-Act waiver, such as requiring claimants to litigate in the CFC. The Government maintained that before Congress passed the Tucker Act in 1887, it had not waived sovereign immunity over takings claims. Sammons countered that the Fifth Amendment automatically waives sovereign immunity. He principally relied on Supreme Court precedent describing the “self-executing” nature of the takings clause. Without weighing the merits of these competing positions, the Fifth Circuit noted that the issue was foreclosed. In Ware v. United States, 626 F.2d 1278, 1279–80 (5th Cir. 1980), it was held that the Fifth Amendment does not automatically waive sovereign immunity. Because, under the Court’s binding precedent, the United States’s sovereign immunity can bar cases against it based on the Takings Clause, those cases fall into the “public rights” category. See Stern, 564 U.S. at 489. Thus, the Fifth Circuit concluded that Congress could Constitutionally require such cases to be heard in an Article I Court, as it did in the Tucker Act. As a result, Sammons’s Constitutional challenge to the Tucker Act failed, and the District Court properly dismissed for want of jurisdiction.

On Appeal from the United States District Court for the Western District of Texas (Samuel Fred Biery, Jr., ).
Attorney for Appellant – Michael Sammons, San Antonio, TX
Attorney for Appellee – Gerard J. Sinzdak, Washington, DC

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