Going to court to vindicate our rights or to recover damages for the injuries caused by a wrong done to us by another party is a risky undertaking. Even where the law is clear (not the most common of circumstances) and even in a judicial system in which judges are as impartial as we have a right to expect them to be, the rules of evidence let all the evidence relevant to the case in and keeps all evidence that is not relevant to the issues in the case out, things don’t always work out well. It is for this reason that litigation should be used only as a last resort. Still, there are times when litigation, however risky, however painful, and however much it drains emotional and financial resources is the only viable choice.

Over the past decades, faith in the judicial systems of this country had been shaken, particularly when property rights are at issue. Land owners and producers of food, fiber and minerals - resource owners and producers - have a particularly low opinion of our judicial system based on their own experiences and those of their fellow owners and producers.

There is some justification for the pessimistic view that property rights defenders have. All too often in the era of the regulatory state, property owners and members of the resource industries have gone to court to find that those august bodies - which were designed to protect us against intrusions on our rights by the government and private parties - have abdicated that responsibility when it is the government that is the actor.

Still, not all of the setbacks that have occurred in litigation brought to defend property rights is the result of an unresponsive or flawed court system. Sometimes the outcome is the result of bad choices by the litigant or his or her attorney. Before litigation is filed against the government, a number of questions should be asked. Both strategic and tactical decisions must be made even before litigation is commenced. Many of the bad experiences that property rights defenders have had with the courts are the result of the client choosing the wrong attorney, the attorney choosing the wrong court or wrong case, or the attorney and the clientasking the wrong questions of the court.

In fact, resorting to litigation is often necessary because the client or his attorney did not approach the problem at hand as though going to court is inevitable. There is an old adage that says that "the best way to stay out of court is to be fully prepared to go to court." A more accurate adage might be "prepare your case for the next person in line." Every contact with the government must be pursued with that thought in mind that the matter may go to court and you are preparing a record for appeal to the courts.

The federal judicial system is peculiar and that peculiarity requires a person who is thinking of challenging federal governmental actions to make a choice at the very beginning. In state courts, a person suing the government (or any other party) generally brings all of his claims to one judge in one court and that judge resolves all of the issues. In the federal court, on the other hand, when a person wants to challenge the effects of regulations on his business or property, he must make a choice. He must either challenge the validity of the regulation (in the United States District Court in the proper district) or must assume the validity of the regulation and (unless the claim is for less than $10,000) must go to a different court. This court is the "United States Court of Federal Claims" (which used to be known as, and can still be called for convenience’s sake, the "Claims Court") to obtain compensation.

Theoretically, the property owner may go first to the District Court to challenge the validity of a regulation (that is, whether the regulation is constitutionally and legally authorized or is validly implemented) and if that challenge fails, go to the Claims Court to raise a claim that regulation requires payment of compensation. The propriety of this choice has not been tested, however. Even more unclear is whether a property owner can maintain both actions at the same time. At least one statute may arguably prohibit doing both challenges simultaneously.

Before the property owner can make an intelligent choice as to what court is best suited to hear his claim, it is essential that he understand the nature of these two classes of claims, and how the law that applies to them differs. He must also have a clear idea of what his goals in litigation are.

Challenges to the validity of a federal governmental action are made under one or both of two fundamental bodies of law. Either a claim is made that the Constitution of the United States itself prohibits the action (for example, that it violates your free speech, due process, or equal protection rights), is not authorized by statute, or that the action violated the federal Administrative Procedure Act.

The Administrative Procedure Act (or APA) provides that a regulatory action is invalid if it either was undertaken by an agency without compliance with the agency’s own rules and regulation (such as proper public notice, for example) or that it is arbitrary and capricious - which is defined as being unsupported by "substantial evidence" in record. The vast bulk of claims that a federal governmental action is invalid are brought under the APA. A federal action challenged under the APA passes if the governmental action was taken in compliance with the agency’s internal procedures and the decision is supported by "substantial evidence in the administrative record."

The rules that apply to APA challenges have major consequences for anyone challenging federal actions. First, the trial court can only consider the "administrative record," a rule that heavily favors the government. The agency has an amazing amount of control over that record. Some agencies, such as the Bureau of Land Management, have fairly formal procedures that allow regulated parties to produce witnesses, cross-examine witnesses, and otherwise create a record. Other agencies, like the U.S. Forest Service, have very informal procedures, which consist primarily of having an agency supervisor review his subordinate’s decision. In either case, however, the litigant only rarely gets an opportunity to add to the record in court.

Second, the phrase, "substantial evidence" does not really mean what it says. The courts are obligated to defer to the agency’s judgment even where the bulk of the evidence make that judgment questionable. The standard applied really has more in common with the so-called "rational basis" test applied to ordinary due process and equal protection cases (discussed later in this article). The rule becomes whether the court can, with the utmost exercise of its imagination, come up with some reason why the bureaucrat could decide that the decision might work as the agency says it will. This standard means that the agency’s decision will almost never get the scrutiny it deserves.

Third, the process, though expensive and time consuming (some estimate that the administrative process alone - before you even get to court - costs between $50,000 to $200,000 on the average), rarely resolves the issue once and for all time. Even when this exhausting process is complete and the court action is successfully concluded (if it is), the remedy that you end up with is remand to the agency where the agency can remake the rule or fix the flaws in the process, whereupon it simply starts the process all over for the (supposedly) successful litigant. Few people can afford such victories.

On the other hand, challenges to the validity of a governmental action based on some other ground may, in some circumstances, be more permanent and useful if successful. For example, if the property owner successfully shows that Congress has not authorized the agency’s rule or action, the agency is stuck. However, Congress itself may save the agency by enacting or amending legislation that grants the once missing authority. Similarly, where there is a successful constitutional challenge (such as that the regulation or other governmental action violates the equal protection, due process, or first amendment guarantees of the Constitution) the action may be permanently invalidated. Even Congress cannot change the result, although it may try to avoid the problem by redrafting the law to get around the Constitutional problem.

There are other reasons why a challenge to regulatory actions other than an APA challenge may be valuable. The most important of these reasons is that challenges to federal regulatory actions made on grounds other than the APA allow the property owner to introduce evidence outside of the administrative record.

There is a down side to such challenges, however. Except in the circumstances in which a so-called "suspect class" is at issue, the burden on the government to prove that its actions are constitutional under the due process and equal protection clauses is very slight. As was mentioned earlier in the article, the standard applied to such challenges is the "rational basis test," which means that the government almost always wins. The court will even help the government figure out an explanation for its actions that will stand scrutiny if the government can’t figure one out for itself. In speech cases, the burden on the government to avoid a finding of unconstitutionality is somewhat higher, but is still not insurmountable.

There are two types of remedies available to a litigant in District Court. The first of these is an injunction-type remedy. The other type of remedy which may be available in the proper circumstances is money damages.

The availability of "injunction-type" remedies means that the court may issue one or more of several types of orders called injunctions, writs, and declaratory judgments. Injunctions and writs direct the agency and its personnel and agents to do or refrain from doing something. Declaratory judgments inform the parties what their rights and obligations are, but do not direct the parties to do anything or to not do something. Often, the court will remand the matter to the agency, that is send it back, for the agency to reconsider its decision in the light of the court’s decision. As was discussed earlier, when a matter is remanded, there is an opportunity for the agency to find new and creative ways to misbehave or to avoid the effect of the court’s ruling.

The other type of remedy, monetary damages, may be available in the proper circumstance, that is, when the government commits what are called constitutional torts. Monetary damages may be considerable when they are available. Attorneys fees may also be available in District Court under both the Civil Rights Act and the Equal Access to Justice Act. In a future article, we will talk more about these issues.

The Claims Court is available when the government’s regulatory actions are claimed either to be taking of a property within the meaning of the Fifth Amendment of the Constitution or when they are claimed to violate the provisions of a contract between the United States and the property-owner.

As we discussed above, there can be no challenge to the validity of the government’s action in the Claims Court with one exception. If the property in question is a contract (and a contract is property within the meaning of the Fifth Amendment), a claim can be made that the government’s action violates the contract if it is not legislatively or otherwise authorized. If the action is authorized, the contract may be taken, but is not breached. Other than this limited circumstance, a challenge to the validity of the government’s actions in the Claims Court will result in the lawsuit being dismissed. So, for example, the property owner who goes to the Claims Court cannot argue that the federal action violates due process or equal protection.

There are a number of advantages to bringing an action in the Claims Court. For example, the property owner is entitled to introduce evidence independent of the so-called administrative record and may conduct discovery (meaning that he can take depositions, and ask the United States- which is the one and only possible defendant in the Claims Court-to produce documents and things among other things). Also, the court owes no deference whatsoever to the agency’s determinations as to the meaning and nature of its actions.

There are down sides to going to the Claims Court, however. For example, a successful takings challenge gives the United States an option. The nature of a takings claim is that it is a claim that the government, by regulating or otherwise acting in the manner complained of, has essentially purchased the property, or some interest in it, and owes compensation as a result. A successful lawsuit may, therefore, mean that the property owner loses his property. This is not always what the property owner wants. However, this outcome is not inevitable. The United States may choose ... at its option ... to abandon the regulation or other action and pay compensation for a temporary taking instead. In other cases, the claim can be made at the outset that the United States has only taken a temporary interest (such as a leasehold interest), taking the choice from the United States. What kind of takings claim can be made depends on the factual circumstances of the case. (Only in very rare instances can a court prevent a taking of property by the United States. Generally, so long as certain rules are met, the only remedy for a taking is compensation.)

If the action is a contract action, however, the United states may be required to pay damages using the normal contract rules and standards applied to contract claims. The court can even issue an injunction prohibiting further breaches of contract.

Whether a property owner goes to one court or the other depends on his purpose in litigating and the remedy he hopes to get. It also depends on the factual circumstances of his case and the record that the district courts and courts of appeals in the location of the lawsuit have in regulatory cases, among other things. Takings cases are extremely fact dependent and the law regarding takings, though more clear and more favorable to property owners than it has been for decades, is still complex and confusing and is still not as balanced as it should be. The property owner and his attorney should be very thoughtful in making a choice of court.

When the action in the Claims Court is a claim for compensation under the takings clause, the measure of damages is the fair market value of that taken (as opposed to the value of all damages caused by the action). Unlike other monetary claims, in which interest becomes due at the "legal rate" established by statute and only after the judgment has been rendered, interest on takings claims, is based on what might be called a "prudent investor rule" and starts to accumulate from the date of the taking rather than from the rendering of the judgment. Attorneys fees are not ordinarily a part of takings compensation, though arguments may be made that they are available in some circumstances.

In summary, it must be said that staying out of court is the best possible objective. But when avoidance of litigation is not possible, you should be prepared to make important choices regarding what court to take the action to, the claims to be made, and the counsel to hire. We will discuss some of the important choices, such as choice of legal counsel, in future installments.

The law has its maxims, a great number of them. One famous one is that the law will not require the doing of a useless act - well, hardly ever. Like any other saying, legal maxims - though not invariably true are usually based on some truth and human experience. One fundamental truism of the law is that, without a remedy, there is no right.

Strictly speaking, this maxim is not true. By definition (though not in the modern twist of the meaning), rights are not something to be given or withheld by government. If the group (which is, after all, what "the government" is) can band together and legitimately decide what "rights" individuals do or do not have and can change that judgment by vote, what we call rights are not rights, but mere privileges, subject to the whims of the moment.

Such was not the vision of those who founded the United States. They believed- rightfully so- that each and every person has inalienable rights, meaning rights which inhere in them as human beings by virtue of their being human, taken away from him without his consent, not even by the consent of his or her forbearers or contemporaries banding together to form a government. In fact, it was their view, again rightfully so, that the whole purpose of government is to ensure that those rights are not violated by other individuals, even other individuals acting in an organized fashion, purportedly for the good of the community.

In other words, government - the framers and ratifiers of the Constitution believed - exists to protect individuals from the muggers, not to become the mugger. In their view, government exists to prevent the violation of rights and to provide a remedy when someone chooses to violate those rights. Of course, those who established the United States were not stupid people. They well knew that men acting in concert under the rubric of government were capable of perpetrating violations of rights in the name of doing good.

James Madison remarked on this tendency of men in the Constitutional Convention when he noted that in groups, "respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience," he continued, "the only remaining tie, is known to be inadequate in individuals. In large numbers, little is to be expected of it." It was in recognition of this weakness in human character that the framers created the judicial branch of government. They wanted to guarantee, as much as any human agency could guarantee, that there would be a remedy when government, as it inevitably would they knew, exceeded its bounds and violated those rights it was constituted to protect.

Thomas Jefferson also understood this tendency of governments to violate the rights it was designed to protect. In the Declaration of Independence he made the observation that there is always a remedy for governmental violations of rights, even if the law fails to provide it when the time comes. He pointed out - in the declaration - the right of the people to abolish any form of government that becomes destructive of the purposes for which it was established in the first instance. So, if Jefferson is followed, there is always a remedy if and when the law ceases to provide that remedy.

 Fortunately, to date at least, while the present federal judicial system is not perfect or infallible, and while it is only in the past decade that the courts have begun a slow return from an abandonment of their responsibility to ensure a remedy when the government perpetrates a violation of private property rights, they have done so. In the last article in this series, we discussed the structure of the federal courts and the reasons why one might select either the U.S. District Court or the U.S. Court of Federal Claims (which, for convenience’s sake we will still call the Claims Court) in any given circumstance. That article also discussed, in brief fashion, some of the remedies that might be available in each of the two courts when it is federal governmental action at issue, but talked about them in the context of strategic choices. Now we turn more to the remedies themselves, particularly as they apply to violations of private property rights.

As before, the reader should be aware that the following discussion is necessarily general and non-technical. Entire law school courses are taught on legal and equitable remedies. It is simply not possible to cover the area’s entire breadth and depth. This article is intended to give some basic education and enough information for the reader to ask the right questions.

The remedy a private property owner who feels he has been wronged seeks is going to depend, not surprisingly, on what his or her goal is and on the nature of the wrong which has been perpetrated. Much of the time, the property owner is not primarily concerned with getting paid for his or her property, but with keeping that property and in being able to do with that property what he or she wants to do.

This is not always going to be possible. As discussed in the previous article, the government has the power of eminent domain - that is, the power to take property for a public use (or, as the phrase has been interpreted by the courts in recent decades, for a legitimate public purpose). It may do so as long as several criteria are met. (1) that the taking is for a public use; (2) that just compensation is paid (and it may be paid either before, at the time of, of subsequent to, the taking); (3) that the government’s action is constitutionally (and statutorily, if it is an agency acting rather than the legislature) authorized; and (4) the government’s action is carried out in a constitutional fashion (for example, it does not violate the due process or equal protection clauses of the Constitution). Courts simply will not prohibit the government from taking property unless one of these four problems exist.

For this reason, a property owner and his or her attorney must make a realistic assessment of the nature of the case and whether the property owner has a reasonable chance of getting the remedy he or she wants. In law school, this is called "the straight face test." If the argument can be made with a straight fact - and it makes strategic and tactical sense to make it - then make it. We discussed some of the tactical and strategic considerations in the previous article in this series. In state courts, this assessment is easier. All claims can be brought before the same court at the same time and the court can choose among the different legal theories available. In the federal courts, for the reasons we discussed in the last article, this is not possible. For one thing, the remedies available in the federal district courts are not all available in the Claims Court. For another thing, some monetary remedies are not available against federal employees under most circumstances because of qualified governmental immunities and for other reasons.

Monetary awards are available to those whose property rights have been violated in both the U.S. District Court and the Claims Court. In the U.S. District Court, however, a litigant cannot seek compensation for a taking of his or her property unless it is below the very small $10,000 jurisdictional amount. However, it is possible to seek monetary damages from the responsible individual governmental officials if their actions are not only violative of constitutionally protected property rights, but are sufficiently flagrant as to overcome the qualified immunities often granted to governmental officials. These kinds of cases are called "constitutional torts." The classic constitutional tort case is the famous Bivens case.

Violations of law of less than constitutional dimension may also give rise to monetary liability in the government itself. Property owners may obtain monetary damages for a governmental agent’s actions rise to the level of a tort (which is the legal name given to "civil" wrongs other than contractual violations, as opposed to criminal violations), such as trespass, and is a tort as to which the federal government has waived its sovereign immunity in the federal Tort Claims Act. A successful plaintiff in a tort action, whether constitutional or otherwise, is entitled to all damages "proximately caused" by the defendant’s misconduct. This amount may be considerable. However, the right to payment does not exist until judgment, and - for that reason - interest on the amount does not begin to run until the judgment is entered and final and the interest paid on the judgment is usually set by statute, ordinarily being simple and not compound interest.

However, even when the government’s actions are not sufficiently egregious as to cross the line protecting the government and its agents from monetary liability, or is not one of those actions as to which the United States has waived its sovereign immunity, the property owner who successfully sues the United States and its agents may nevertheless be able to obtain at least some of the costs of his or her fight to vindicate his or her rights. For example, the Equal Access to Justice Act, or EJA, permits a person who has successfully challenged an action of the United States to recover his or her attorneys fees if the government’s action was "substantially unjustified." (Whether EJA applies when the claim is that the government’s action amounted to a taking and the U.S. resists that claim remains to be seen, but a person bringing a takings case should consider requesting attorneys fees under EJA.)

As an ordinary matter, however, the remedies available to a property owner who is challenging the U.S. and its agents in district court (which ordinarily means a challenge to the validity of the government’s actions) fall into three categories: (1) an injunction (temporary and permanent); (2) a declaratory judgment; and (3) and writ of mandamus.

Injunctions and writs are similar and are what property owners who want the government to leave them alone are usually seeking. They are orders from the court to the losing party to behave in a particular manner. Injunctions may be mandatory - directing the persons against whom the injunction is issued either to take an action or to refrain from taking an action. Courts are generally loathe to issue mandatory injunctions. An injunction might be granted to a property owner to stop the U.S. Forest Service from preventing a property owner from removing pinion pine and juniper from a private right-of-way which crosses purportedly federal land if, for example, the District Court should decide that the Forest Service has no statutory authority to regulate such rights-of-way.

Writs may be either "ordinary mandamus," or "administrative mandamus." Ordinary mandamus "lies" (as courts phrase it) when the action at issue is a legislative one or where the governmental official has a "mandatory duty" to take the action requested (or to refrain from doing so). Administrative mandamus generally lies when the agency has discretion or is acting in a court-like fashion (or what is called a "quasi-judicial" action). Administrative mandamus does not ordinarily tell the agency what decision to come to, but will order it to exercise its decisionmaking power. If, for example, the question is whether the agency should have done an environmental study before taking an action which adversely affects a property owner’s rights, the court will issue a writ directing the agency to follow the environmental review process, but will not tell the agency what result to reach at the end of the environmental review process.

 In short, as an ordinary matter, an injunction is most appropriate when the property owner wants the agency to take a specific action or to refrain from doing so. A writ is ordinarily most appropriate when a specific decision and action are at stake.

Declaratory judgments generally do not direct a party to do or not do anything. They simply "declare" the meaning of a written document, which may include a law, constitutional provision, contract, and the like, or the respective rights and duties of the parties under that document. To obtain a declaratory judgment, the parties must show that there is a present controversy in a specific factual context and an actual dispute between the parties. The federal courts will not, and constitutionally cannot, offer what are called "advisory" opinions. For these reasons, other relief in the form or monetary damages, injunction, or writ is or should be asked for when a declaratory judgment is sought.

As noted in the last article, the Claims Court is available when the government’s regulatory actions give rise to a right in the property owner for monetary compensation other than a tort claim. These claims are usually either Fifth Amendment takings claims or contract claims.

Remedies such as injunction, writ of mandamus, and declaratory judgments cannot be had in the Claims Court except that the Claims Court can give injunctive and declaratory remedies as a supplement to monetary remedies in a contract case and can even give monetary damages for what are called "tortious breaches of contract."

When damages are awarded for breaches of contract, the rules as to when interest begins to accumulate and the rate of interest are generally the same. The measure of damages is somewhat different, however. The damages in a contract case are those "proximately caused" by the contractual violation and which are damages of the type "within the contemplation of the parties" when they entered into the contract, unlike in a tort case which are all damages proximately caused, regardless of whether the specific injuries were foreseeable as long as some injury was foreseeable.

 The important thing for the reader to keep in mind about contract claims in the Claims Court, however, is this. A contract with the United States is property and, like any other property, can be taken under the Fifth Amendment by the U.S. if it chooses to do so and the agency’s action is statutorily and constitutionally authorized. If it is, the contract is taken and subject to Fifth Amendment compensation rules. If the action is unauthorized, it is a breach of contract and subject to contract rules, including the rules that permit the court to issue an injunction to prohibit the government from further breaching the agreement.

When the action in the Claims Court is a claim for compensation under the takings clause, the measure of damages is the fair market value of that taken (as opposed to the value of all damages caused by the action, which is the tort measure of damages). This amount does not include business losses, the losses to the property owner, or the value to the government. For example, unlike other monetary claims, in which interest becomes due at the "legal rate" established by statute and only after the judgment has been rendered, interest on takings claims is based on what might be called a "prudent investor rule" and starts to accumulate from the date of the taking rather than from the rendering of the judgment. Stated differently, the actual judgment in a takings case may be less than what might be obtained if a constitutional tort or contract violation can be shown, but, the interest in a takings case may, if the government resists payment for any significant period of time, far exceed the actual judgment. In the Whitney Benefits v. United States case, a Surface Mining Control and Reclamation Act (or SMCRA) case, a judgment of approximately $60 million was far exceeded by an almost $130 million interest amount. Success, however, also means that the U.S. will purchase the property either permanently or temporarily. If the U.S., at its option, chooses to accept a permanent taking, the property owner loses his or her property.

As mentioned in the previous article, attorneys fees are not ordinarily a part of takings compensation, although, as discussed above, arguments may be made that they are available under EJA in some circumstances.

In summary, once a property owner feels he or she has a legitimate case which demands litigation, he or she must give careful consideration to both his or her ultimate objective in litigation and the feasibility of obtaining that objective. He or she must also be certain to ask for all the relief he or she wants. If the owner does not do so, he or she will be barred in most circumstances from returning to court in the future to ask for additional relief. With some few exceptions, one shot is all the property owner will get. For this reason, before pursuing litigation, a property owner should explore all of the possible remedies available. In our next installment, we will discuss takings, and particularly regulatory takings, in the light of the most recent Supreme Court decisions and what they mean for property owners who are being regulated.

 Mr. Pollot is the author of the book on property rights, Grand Theft and Petit Larceny.