Litigation Update: Love Terminal Partners v. United States

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Thursday, May 30, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on Love Terminal Partners v. United States. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Dana Berliner, who is Senior Vice President and Litigation Director at the Institute for Justice who has filed an amicus brief in the case. We also have Nancie Marzulla, who is a Founding Partner at Marzulla Law and is counsel for the plaintiffs throughout the litigation. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Nancie, the floor is yours.

 

Nancie Marzulla:  Well, thank you. And I want to just share with everyone how pleased I am to have the opportunity today to be with you and to talk about this important takings case, Love Terminal Partners v. United States. The plaintiffs in this case are, of course, Love Terminal Partners and Virginia Aerospace. These are two related entities owned by experienced commercial real estate investors. And in 1999, they began investing in a 26-acre parcel of land located at the Love Field Airport in Dallas, Texas. The Love Field Airport is a public airport. It's owned by the City of Dallas, and under the leases issued by the city, there's really only one use for leased land at the airport, and that is commercial air transportation.

 

      So our plaintiffs invested over the years in their property. They constructed a six-gate luxury airline terminal on their leased land. That cost about $20 million. And over the years, they continued to invest in the property. From 1999 to 2006, they invested almost $70 million in the purchase of the lease, rent, maintenance, and of course, the terminal construction.

 

      In 2006, Congress passed the Wright Amendment Reform Act. This statute repealed the Wright Amendment. Now what is the Wright Amendment? The Wright Amendment was a statue that had been enacted in 1978. Its purpose was to explicitly limit or expressly limit flight out of Love Field. It restricted flight originally to certain contiguous states and later to a few other states, but the primary goal was to ensure that there could be no cross-country flights out of Love Field.

 

      And the reason why Congress did this -- it was a protectionist statute that Congress intended to allow the Dallas/Fort Worth Airport, which was the newer airport, it was a fledgling airport at that time, and Congress wanted to ensure it had a chance to get on its feet and to be a successful airport. And of course, Love Field was a local airport and was far more convenient to the people of Dallas. So by restricting flights at Love Field, it forced people to have to use DFW.

 

      Eventually, people saw that the purpose behind the Wright Amendment was -- no longer existed, and so there was significant pressure to repeal the Wright Amendment. And in 2006, Congress enacted the Reform Act, and it did a number of things, first of which it repealed the Wright Amendment. But it also did some other things which are key to our discussion here today. First and foremost, it incorporated what we refer to as a "five party agreement" reached between American Airlines, Southwest Airlines, the cities of Dallas and Fort Worth, and the DSW Airport Board. This statute, the Reform Act, codifies this five party agreement.

 

      And as a result, the Reform Act targeted plaintiffs' property and explicitly prohibited plaintiffs from using their property both for an airline terminal and for future air passenger service, which, as I noted earlier, that really was the sole productive and beneficial use of the leasehold. Specifically, the Reform Act reduced the number of gates at Love Field from 32 to 20, and it required that all of those 20 gates be located at a new terminal to be constructed for Southwest Airlines.

 

      The Reform Act also obligated the City of Dallas to acquire plaintiffs' lease, and to physically demolish plaintiffs' six gates at its terminal to, again—and the statute actually says this—to ensure that plaintiffs' property never again be used for air passenger service. Notably, nothing in the Reform Act provided for payment of just compensation to plaintiffs for the destruction of their property rights.

 

      So plaintiffs filed suit for the unconstitutional taking of their property without compensation in the U.S. Court of Federal Claims in 2008. The trial court held on summary judgement that the Reform Act was an unconstitutional physical taking, and then following a two-week trial, held that the Reform Act constituted a per se regulatory taking of plaintiffs' leasehold estate. The court awarded the full appraised value of the lease, approximately $133.5 million, and also awarded attorney's fees, and costs, and interest. So far, so good for the plaintiffs.

 

      But on appeal, the Federal Circuit totally reversed, holding that the property had no value because plaintiffs' investment had generated no positive cash flow prior to the taking. According to Federal Circuit Judge Dyk who wrote the decision for the panel, investment property must generate a positive cash flow, and if it fails to do so, that property is subject to immediate confiscation by the government with no constitutional obligation to pay just compensation.

 

      Needless to say, we are now before the Supreme Court. Paul Clement is lead counsel in the Supreme Court. He has prepared, not surprisingly, a fabulous cert petition. And we have been fortunate to have garnered the support of outstanding amicus supporting the petition, including the wonderful cert petition filed by the Institute of Justice.

 

Dana Berliner:  Thanks, Nancie. So as Nancie explained, we did file an amicus in support of the cert petition. And there were a bunch of other amicus briefs too, all raising some very interesting issues. And as you can see from Nancie's description of what happened here, the case is going to raise a number of very important legal issues, and it calls into question several critical aspects of takings law and just compensation analysis. And it provides a different method of valuing property than what has been used up until now, and it is one that is very, very disadvantageous to owners.

 

      So I'm going to talk about what these legal rulings were, but what I want to do before that is point out a broader problem. The circuit court carefully parsed out each tree, and just as carefully, never talked about the forest because what's the forest here? A company invested nearly $100 million in property. It had a lease that allowed its gates to be used for airline service, and there were lots of kinds of service, even without the WARA that it could do.

 

      It could have direct flights to eight states. It could have smaller planes to any state in the country. It could have planes in Texas. It could do private flights. It could lease to the existing airlines. There were all kinds of rights that it had under its current lease. There was also reason to believe that the Wright Amendment was going to be repealed. It was currently in negotiation with airlines for use of the gates.

 

      Congress then passes a law that completely prohibits this company from using the gates, and it blesses a private agreement to actually physically destroy them. And the result of all of that is that the company gets no compensation at all, not for the decision that its once useable gates could not be used, not for the reduction in value, not for the physical destruction of the gates. It gets zero.

 

      It's important to understand that because what happened here is something that I think courts do whenever they want to somehow excuse the government from paying is that they will break things up into little tiny pieces, analyze it in this way, and never look at the kind of -- not kind of, completely obvious result that this was a highly valuable property that it couldn't use anymore and was taken. And yet, for that, there's got to be some compensation.

 

      So when viewed this way, the decision is so obviously wrong. It's important to see how the circuit court got there, and it got there primarily through two new rules of law that conflict with other circuits and will be a huge problem in the future if they're adopted by other circuits. So under regulatory takings, there's really two kinds at issue here. A regulatory taking under Lucas is where the property has no possible use. And then a regulatory taking under Penn Central looks as the diminution in value.

 

      Under Lucas, there was a use for the property beforehand because there was a least to able to use it, and of course, there's no use for the property afterward. But the circuit court nonetheless said that there was no taking because the gates were not being used. So since the use hadn't begun and I guess the circuit court anticipated, perhaps, that they wouldn't be used, it wasn't deprived of any use because it didn't have any use in the first place. The problems with that are enormous because the court failed to look at, for example, the lease which gave use rights.

 

      And that's tantamount in other context to when you have developable property that is allowed to be developed for stuff, and then those development rights are taken away completely, as these were, still saying, "Oh, well, it hadn't been developed yet, so no just compensation at all." That doesn't make any sense. The Lucas decision itself was undeveloped properties, the cert petition points out, and huge numbers of takings are undeveloped property. And yet, this would mean that they really couldn't be compensated if they hadn't been used yet. So that is one major problem with the Lucas analysis.

 

      With the Penn Central analysis, there were two issues. And all of this goes back to the court really wanting to look only at current circumstances, not wanting to look forward at all. And that was part of the way it parsed out its analysis. So under Penn Central, you look at the value of the property before and after the regulation. The black letter rule is that courts look to fair market value, what a willing buyer would pay a willing seller. And to determine -- you use that for both the before and the after prices. Here, the circuit court held that you can only look at the before value of current circumstances. Has the property been turning a profit? Not yet, so its value was negative. And then when you take it away, it still has no value, but you haven't lost anything.

 

      That's not the rule, and it's not the rule anywhere else. Having it be the rule in the federal circuit is quite alarming because, as I mentioned, many, many takings are of investment properties. Investment properties typically are not yet being used or haven't been developed. They're not turning a profit yet. And yet, people actually invest in them, and they do so for a reason because their market value is more than zero. So by constraining the before value only to current profits, the court has effectively allowed three takings of undeveloped property.

 

      Circuit court tries to couch this decision as one just of facts and evidence, not of law. And yet, it can't be. Circuit court only talks about the fact that it wasn't turning a profit, various aspects of that and how much they were paying. And there was a mountain of evidence of value. This was a decision after a trial. There was nearly $100 million of investment by the owners. There was the fact that the five parties to this agreement went to an unbelievable amount of effort to make sure the gates were destroyed, which kind of tells you there's some value there. There was enough value to cause them to negotiate with the city, and then go to Congress.

 

      There was so much existing evidence of value that the only way that the court could have said that there was no before value and citing to the lack of profitability was really to have had a legal rule that if it's not profitable, it's worth zero. That's going to conflict with basically every eminent domain decision that involves property that is not currently turning a profit and with the general rule that you look at the market value and the expectations of future use and future profit. And those have to be reasonable, but here, they were very reasonable. And of course, there was current use possible as well.

 

      So to make matters worse, the court then used a second rule that even expectations of future use, which black letter law says you're supposed to consider, had to be cabined to the current regulatory regime. The portion of market value that anticipated changes, beneficial changes in regulation, could not be considered at all. And there were a lot of possible changes. There was the possibility of the Wright Amendment repeal, which, in fact, happened. There was the possibility of opening up flights to a number of different states, and depending on which states, that could have greatly increased the usability of the gates. So those anticipations were factored in. And of course, that's why the company invested tens of millions of dollars. As the JetBlue amicus explains, they were negotiating for using the gates, even though that use wasn't yet legal because they were anticipating it would become legal.

 

      Particularly striking, I found, was the circuit court's comment that the expectation analysis can only account for the property owner's expectation that the regulatory regime in existence at the time of the acquisition will remain in place, and that new, more restrictive legislation or regulations will not be adopted. The courts will take into account the current regulatory regime. They'll take into account the possibility that the regulatory regime will get worse and that your property will be worth even less, but they will not take into account the possibility of the regulatory regime getting better.

 

      And that is a very unusual and alarming rule of law. It is not one that is used by other circuits; the D.C. Circuit, the Third Circuit, the Eleventh Circuit. In the context of takings where there was a reasonable expectation of changes in zoning, and that that was reflected in the market value, that was part of the value. The fact that people expected, reasonably, that the zoning would be changed was part of the value. And it certainly is in markets between a willing buyer and a willing seller, but not anymore in the federal circuit.

 

      So the overall impact of this is super problematic. It's going to make takings of unused developable land very, very attractive because those owners are stuck with the current regulatory regime, and they're stuck with the profits that they're making, which at the time is going to be zero. If this starts to spread to other circuits, and there are certainly circuits that haven't considered this issue of current regulatory regime versus future beneficial changes, that is going to be very, very detrimental to owners. And really, this decision, both of the new rules of law that you look at current profits, that you look at current uses, that you look at current regulatory regime or worse, all are biased toward reducing compensation. They're all designed so that properties that are highly valuable on the actual markets will be valued less.

 

      And it's understandable that government does not want to pay the full value of what it takes because it's expensive. It's expensive to buy properties that are very developable. That's why people invest millions and millions of dollars in them. But the constitutional mandate is just compensation, and when those values are destroyed, they have to be paid for. And the decision of the circuit court by this manipulation of the legal rules and the conflicts now that that's going to cause with other circuits has managed to get the federal government out of paying for the destruction that it has caused.

 

      I think that this is a really good candidate for cert because there are so many conflicts with really black letter compensation law. There are, as Nancie mentioned, amicus briefs from a bunch of groups, from us, from Pacific Legal. There's an amicus brief from four states, Texas, Utah, Arkansas, and Oklahoma, because they see the problem this is going to cause for investment because people will not want to invest if a taking can happen that won't compensate them.

 

      And JetBlue actually submitted an amicus brief too, explaining that this is a particular problem for airports because the way that Love Field Partners was operating here, this kind of investment in anticipation of future loosening of restrictions, getting the gates all ready, all of that is totally typical in the world of airport investment and airport development. And by making this ruling, it has suddenly become a very, very bad idea to invest in airports because the way that it's done is now not compensable if it's taken.

     

      So these are the results of this decision and the reason that people should be quite worried about it. I hope that cert is granted, and we should open this up for questions because there is a lot to talk about here.

 

Micah Wallen:  Not seeing any questions light up right away. Well, we actually do have a first one. Dana and Nancie, did you want to have a back and forth first, or would you like to go ahead and go to questions?

 

Nancie Marzulla:  Let's go to questions.

 

Dana Berliner:  Yeah, we'll go back and forth as that occurs, so that's fine.

 

Micah Wallen:  Absolutely. Without any further ado, we will now go to our first caller.

 

Helen:  My name is Helen. I live in New Jersey, and I'm so flabbergasted by this decision. Has anything done about getting this out to the public as far as real estate developers and just lawyers who are maybe in general practice and do not follow environmental law or property rights law quite closely? Because this really -- if this were allowed to stand, this would be a catastrophe for the economy, for development, for security. So I guess that's my question because I'm just -- I'm absolutely shocked. And thank you ladies for presenting this. I appreciate it.

 

Nancie Marzulla:  Well, thank you for your question. This is Nancie Marzulla. And I think the case is getting some interest. And as Dana suggested, I think we know that because of the broad array of amicus who filed support of the cert petition. Getting support at the petition stage is pretty unusual, and yet, this case was able to pull in, oh, gosh, over a dozen—I don't have the count in front of me. Maybe you do, Dana—but a large number of really well written, thoughtful amicus from a broad spectrum of various parties interested in the issue.

 

      But I think, Helen, your point is so well taken because the investors here, the plaintiffs, were not airline industry nerds. They were your bread-and-butter commercial real estate investors. And they were highly experienced, and they did extensive due diligence before they invested in the property, but they did everything right. They did what is standard, good practice real estate investment, and they anticipated holding the property until market conditions improved.

 

      And that's something we should probably talk about. Why wasn't this property showing a positive cash flow? Why did it go for years without showing a positive cash flow? Well, you'll never find the answer to that question by reading Judge Dyk's decision out of the Federal Circuit. He never once mentioned 9/11. And for those of us who lived through 9/11, we probably well remember what happened to the airline industry after the airplanes flew into the Towers and the Pentagon. The airline industry was decimated for really four to five years.

 

      So these investors had the bad luck of investing in this wonderful property beginning in late 1999. They're just getting things going with their new terminal, had it constructed. Then the bottom falls out of the industry, and just as the industry is starting to get back on its feet in around 2005, low and behold, in 2006, the Reform Act is passed, which absolutely destroys their investment in this property.

 

      So again, this is something that Judge Dyk doesn't even discuss in his decision. Instead, he formulates this broad rule. And I think Dana did a good job of pointing this out. The decision that Dyk issues is not limited to the facts of the case. It is not a narrowly written decision. He announces a very broad rule that applies to any investment, any commercial, any private investment in real estate. If you hold this property, and by golly, it's not turning a profit, according to Judge Dyk, the government can take it, and there's not much you can do about it.

 

Dana Berliner:  And to respond specifically about whether people are aware of this, I am sure that the development community is watching this case very closely. They have to be because it has such significant implications. Richard Epstein, who wrote our amicus brief, has also written about this in the popular press and a number of places to get the word out about it.

 

      I mentioned that this conflicts with other courts. What will happen initially is that the federal government can take investment properties without having to pay for them, but other courts, state courts, are still -- they still have the other rule of law. So those will have to pay even if it's an investment property under the standard fair market value. And this creates some very weird patterns of some courts taking into account the before value and the investment value, some not, some parties being able to condemn without paying and some not.

 

      And that's exactly the kind of situation that the U.S. Supreme Court should take. It will make a crazy world for investors because they will have to consider what federal circuit they're in, whether the property will be attractive to the federal government as opposed to state governments or local. It'll be a total mess.

 

Micah Wallen:  All right. We have another question lined up, so without further ado, we'll move to that caller.

 

Warren Norred:  Yes. I was just wondering how this kind of decision would show up in some of these regulatory zoning changes cases. I'm representing a car wash in Dallas where they're simply changing the zoning and creating an unhealthy place for my client. Does this kind of a case help me at all?

 

Nancie Marzulla:  There's not much good to be found in this decision. I guess I'd have to know a little bit about your situation. Are you anticipating, for example, regulatory changes that might actually benefit your client's property, or are they -- all the regulatory changes harmful or negative, will negatively impact your client's property?

 

Warren Norred:  Yeah, I guess I said that wrong. I guess the right thing to say is there -- is do you see any hope for any of us in any of these areas in particular where I've got a car wash that was conforming. Now, it's not conforming. And of course, they did this 10 years ago. We made it nonconforming, and now they're doing this process where we're going to decide when you have to start conforming, which is the same thing as saying, "You have to close because we've decided that car washes cause crime." And so we're left with, "Yeah, you're not really taking it, but you kind of are taking it, but you're really just making it so that we've got to sell it."

 

Dana Berliner:  Right.

 

Warren Norred:  And there doesn't seem to be much hope for us.

 

Dana Berliner:  Not under this decision. But under the Fifth Circuit -- I mean, so I assume it's not being taken by the federal government, right? This is just --

 

Warren Norred:  -- Oh, no. This is just -- this is all City of Dallas.

 

Dana Berliner:  Yeah. So that's currently a destruction of old use, which is what you're going to be looking at, is compensable when it's not the federal government. I should also -- it's off topic, but I should point out we have a case about this that's pending at the Texas Supreme Court, the Institute for Justice does.

 

Warren Norred:  Is that the Hinga?

 

Dana Berliner:  Yeah. So --

 

Warren Norred:  -- Yeah. I'm your local counselor for that one. [Laugher] So I'm very familiar with that one.

 

Dana Berliner:  You didn't say your name. Yeah. [Laughter]

 

Warren Norred:  I'm sorry. I'm Warren Norred. Yes. So, I know you people. But it's -- of course, that's a little bit different deal, and that's -- but it's related, obviously, right? And so Dallas does this kind of thing, but a lot of cities, I'm assuming, are doing this kind of thing where they say, "Well, we've decided -- " — it goes all the way back to Kelo and long before, right? — "and so we're not necessarily taking it, we're simply going to make it so that our friend gets to buy it at a reduced price that you would not have sold it for otherwise."  

 

Dana Berliner:  This decision is very ominous for that, but it does not directly apply yet because it's the Federal Circuit. And the fear is that it's going to be adopted by others.

 

Warren Norred:  Right.

 

Nancie Marzulla:  Yeah, I fully agree with Dana on this. I guess the one thing that we now all have to fear is whereas we might think we do not have the federal government looking over our shoulder and waiting in the shadows to swoop in and take our property, we're just dealing with the local regulatory authorities, this case shows us that the local authorities can cut a deal with Congress and get local decision making codified at the federal level. And all of a sudden, you're in federal court, and you have a federal takings, and you are directly subject to Judge Dyk's ruling. So that is something this case stands for and I think should give everyone pause.

 

      The other thing about this case and the thing to know about Judge Dyk's ruling is that Judge Dyk has been issuing a number of rulings in the takings arena. This is one of several other big, broad takings decisions he has issued, all of them terrible decisions for property owners, all of them terrible decisions for property rights plaintiffs. He is single-handedly rewriting takings jurisprudence for the Federal Circuit. And this case, in conjunction with his other decisions, really is decimating takings jurisprudence.

 

      And for anyone on the phone who is sitting around thinking, "Gee, I'd like to write a law review article, but I just don't know what to write about," I might suggest that you take a look at Judge Dyk's rulings. You can start with this case and look at his other decisions, and I think you might have a nice law review article topic.

 

Micah Wallen:  All right. We have another question coming through, so we'll now move to the next caller.

 

Caller 3:  Here's a question for Nancie. If fair market value is not the way you measure the economic impact in this taking case, what's the substitute? What is Judge Dyk's idea of how you actually do determine economic impact?

 

Nancie Marzulla:  Well, I actually am going to bounce this question to Dana since she is covering the Federal Circuit ruling.

 

Dana Berliner:  It's a really interesting question, actually, because it's the value of the property as it's being used. I think, probably, if there's no regulation at issue, if it's just you're using it as a house, and how much would the house be worth on the market, then probably he would look at the real estate appraisers for the house. But if it's a question of undeveloped land, it's really going to have to be based on current use, current cash flow. I don't know if he would take into account if you had just sold the property. Maybe, but the fact that they were in active negotiations for it did not count because those negotiations had not yet been finalized at the time of the reform amendment. So I think it's based on current use, and that's a big problem.

 

Micah Wallen:  All right. Not seeing any other callers lined up at this second. I would like to briefly mention that there is a website for this case, and it is at www.scotus5thamendment.com. It has links to all of the op-eds regarding the case, amicus briefs, and any other information that you might wish to have that can't be covered in an hour teleforum.

 

Nancie Marzulla:  This is Nancie. I was going to just kind of comment on something that Dana was talking about, and that is the anticipating the regulatory changes, which again, Judge Dyk dismissed out of hand, sort of pooh-poohing the idea that the market would value property based on imminent regulatory changes.

 

      The testimony at trial was really unanimous that everyone knew, everyone in the airline industry knew that the Wright Amendment was going to be reformed. There was no longer any need for it. The Dallas/Fort Worth Airport was a huge success, and in fact, the Wright Amendment, it was passed in 1978, and it had already been loosened. Its restrictions had been loosened several times by Congress over the years, so there was a proven track record of Congress stepping in and repealing some of the really draconian restrictions that were enacted in 1978. So that by the time we're in the 2005, 2006 period, it didn't take much imagination to recognize that, yeah, this Wright Amendment was going to be either just flat out repealed or significantly loosened, its restrictions significantly loosened.

 

      And this is another major problem with Judge Dyk's ruling here that his broad legal decision in his rulings were based on factual predicates that simply had no basis in the trial court record. So there's really a lot to criticize about this opinion, and a lot to worry those of us who are interested in the rule of law and in the protection of private property rights. There's not much good you can point to in it.

 

Micah Wallen:  Absolutely. And not seeing any other questions still in the line, Dana, did you have any closing remarks you'd like to offer?

 

Dana Berliner:  Going with Nancie's point about Judge Dyk's rulings, I do want to emphasize again how skewed these legal rules are because they are all rules where compensation -- that Judge Dyk came up with in this case, they're all rules that can lower the compensation but not raise it. So you can take into account worsening regulations; you can't take into account improving regulations. You can only take into account current income, current contracts, but not anticipated future ones.

 

      And that use of very slanted rules is, in general, a danger to the rule of law and very, very much a danger in takings law because the urge to protect the government from having to pay for things is so strong. And yet, the Constitution says they have to pay. Armstrong says you don't make one person bear the burden, the costs of something that should be borne by all. But courts find that hard to accept sometimes and really try to protect government from having to pay even when it's obvious that they've taken something of enormous value.

 

Micah Wallen:  And Nancie, did you have anything to add at the end, or should I go ahead and close us out?

 

Nancie Marzulla:  I think we have done a thorough job here of identifying sort of the overarching issues here. I do think it's a very interesting case. It's really a case in which the trial court did just an extremely good job, thoughtful job of analyzing the issues and wrote, gosh, I think the decision, the trial court's decision, was well over 75 pages. It was a very long decision, and she covered everything. The trial court covered everything.

 

      And yet, to have the Federal Circuit just simply reverse everything, even the physical taking component of the decision, a provision in a statute that requires that a physical building be demolished, was not enough to rise to the level of a physical taking in Judge Dyk's mind. I mean, it is a -- this experience in the Federal Circuit on this case has been very disheartening. And this is a case that just cries out for Supreme Court correction so that these decisions coming out of the Federal Circuit can be consistent with other circuit law, other circuit court rulings, and consistent with the requirements of the Constitution.

 

Micah Wallen: All right. And on behalf of The Federalist Society, I would like to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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