NO.

21-_____

In the
Supreme Court of the United States

MIKE FINNIN MOTORS, INC., AND

GUETTERMAN MOTORS, INC.,

v.

UNITED STATES,

__________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD FAULKNER HARRY W. ZANVILLE

12770 COIT RD., SUITE 720
DALLAS, TX 75251 10740 EL MARBEA LANE
(972) 972-1500 LA MESA, CA 91941
(619) 400-7164
HWZLAW@GMAIL.COM
JAMES H. ARENSON
ARENSON LAW GROUP, P.C.
425 2ND ST., SE #900
CEDAR RAPIDS, IA 52401
(319) 220-5850

AUGUST 11, 2021

SUPREME COURT PRESS (888) 958-5705 BOSTON, MASSACHUSETTS
 i

QUESTIONS PRESENTED
During the liquidity crisis of 2008-09, the United
States determined the public interest required
Chrysler and General Motors because they were
too important to fail. Believing each would be more
profitable with fewer dealers, the Government
restructuring plans required the confiscation of large
numbers of General Motors and Chrysler dealer fran-
chises. branded
vehicles, parts, and service in exclusive territories
were terminated and gifted to other dealers who the
Government assumed would operate more produc-
tively, thereby benefitting the public. Believing state
laws prohibited those dealership terminations without
compensation, the Government executed a bankruptcy
strategy to circumvent paying for the dealerships
being taken while concomitantly blocking dealers from
purchasing each other in the free market. The Court
of Federal compensated
property seizure on two grounds: that the Chrysler
less because
their franchise contracts would have been rejected in
bankruptcy if the Government had not intervened
during the liquidity crisis and that the Government
was not legally responsible for the actions of Chrysler.
The Federal Circuit affirmed the former and declined
to address the latter.
THE CENTRAL QUESTIONS PRESENTED ARE:
1. Whether the novel Federal
defense to takings liability conflicts with
, 568 U.S. 23 (2012)
(categorical defenses are barred in takings cases),
, 576 U.S. 351 (2015) (hypothetical anal-
 ii

ysis is not permitted to bar takings liability),

, 438 U.S. 104
(1978) ( balancing factors are required in regu-
latory takings cases), and -
, 535 U.S. 302 (2002)
(regulatory takings requirements may not be imported
into direct takings cases), as reiterated in
, 210 L.Ed.2d 369 (2021)?
2. Whether the dismissal of the direct takings
claims that were not even defended by the Government
on a ground it never raised departs so far from the
accepted and usual course of judicial proceedings
that the exercise visory power is
justified because it contradicts the controlling prece-
dents of - 140 S.Ct.
1575 (2020) (party presentation rule), -
, 547 U.S. 198 (2006) (entitlement to be heard
before a court rules upon defenses it injected
for the Government), and , 137 S.Ct.
1933 (2017) (fairness is required in takings cases)?
3. Whether the affirmance of the economic val-
uation decisions conflicts with the holding of
, 139 S.Ct.
1652 (2019) (franchisee rights are not rendered worth-
less by rejection in bankruptcy) and
, 338 U.S. 1 (1949) (proof of fair
market value is not required in cases of economic emer-
gency)?
 iii

PARTIES TO THE PROCEEDINGS

Petitioners and Appellants,

Representative Plaintiffs Below
Mike Finnin Motors, Inc.
Guetterman Motors, Inc.

Respondent
United States

Respondents and Co-Appellants,

Representative Plaintiffs Below
Taylor & Sons, Inc.
Cedric , Inc.
RFJS Company, LLC
Jim Marsh American Corp.
Livonia Chrysler Jeep, Inc.
Barry Dodge, Inc.
 iv

RULE 29.6 STATEMENT

Neither petitioner is a publicly held company,
and no publicly held company owns 10% or more of
petitioner
 v

LIST OF PROCEEDINGS

United States Court of Appeals for the Federal Circuit

No. 2020-1185, 2020-1205

Date of Final Opinion: December 29, 2020

Date of Rehearing Denial: March 17, 2021

_________________

United States Court of Appeals for the Federal Circuit

No. 2013-5019 and 2013-5020

Date of Final Opinion: April 7, 2014

_________________

United States Court of Federal Claims

No. 10-647C, 11-100C, and 12-900C

Date of Trial Opinion: October 12, 2019

 vi

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDINGS ........................ iii
RULE 29.6 STATEMENT ......................................... iv
LIST OF PROCEEDINGS .......................................... v
TABLE OF AUTHORITIES ....................................... x
OPINIONS BELOW ................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED .......... 2
STATEMENT OF THE CASE .................................... 3
REASONS FOR GRANTING THE PETITION ......... 9
I. THE FEDERAL CIRCUIT S UT FOR TEST
SHOULD BE REVIEWED UNDER SUPREME
COURT RULE 10(A) AND 10(C) BECAUSE IT IS
CONTRARY TO CONTROLLING DECISIONS OF
THIS COURT ....................................................... 9
A. Relevant Takings Clause Concepts in
Context ........................................................ 9
B. The Dismissal of the Takings
Claim for Failing to Satisfy an Element
of a Takings Case Is Contrary
to - and ............. 11
C. F
Dismiss the Direct and the Regulatory
Takings Claims Is Contrary to Controlling
Decisions of This Court............................. 13
 vii

TABLE OF CONTENTS Continued

Page
II. THE METHODS USED TO DISMISS THE
DIRECT TAKINGS CLAIMS CONTRADICT THIS
COURT S CONTROLLING PRECEDENTS AND
DEPART SO FAR FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS
THAT THE EXERCISE OF THE COURT S SUPER-
VISORY POWER IS JUSTIFIED ............................ 22

A. The Government Did Not Defend the

Direct Takings Claim ............................... 22
B. Interjection
of a Direct Takings Defense for the
Government Violated Four Core Tenets
of the Administration of Justice ................. 25
III. THE RULING THAT DEALERS PROPERTY
W AS W ORTHLESS IN A HYPOTHETICAL
BANKRUPTCY W ORLD IS CONTRARY TO
CONTROLLING PRECEDENTS OF THIS COURT ..... 28
A. The Affirmance That Rejection Would
Render
Is Contrary to ................ 28
B. The Affirmance of Requiring Proof of
Fair
to ,
338 U.S. 1 (1949) and ............. 31
C.
Make Historical and Subsidiary Fact
Findings Concerning the Profitability of
the Exercise of Franchisee Rights After
Rejection is Contrary to
., 333 U.S. 364
(1948) and
 viii

TABLE OF CONTENTS Continued

Page
., 138 S.Ct.
960 (2018) .................................................. 32
IV. TRADITIONAL CONSIDERATIONS SUPPORT THE
ISSUANCE OF A WRIT OF CERTIORARI ............... 35
A. The Petition Does Not Request Mere
Correction of a Legal Error ....................... 35
B.
But F
Side-Stepping of Controlling Precedents
Will Have a Significant Impact Beyond
the Decision ............................................... 37
C. This Case Provides a Unique Opportunity
to Answer the Questions Presented
Here and to End the Result-Oriented
Reasoning Used by the Federal Circuit

Precedents ................................................. 39
CONCLUSION.......................................................... 41
 ix

TABLE OF CONTENTS Continued

Page
APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for
the Federal Circuit (December 29, 2020) .......... 1a
Trial Opinion of the United States Court of
Federal Claims (October 12, 2019) .................. 12a
Opinion of the United States Court of Appeals for
the Federal Circuit (April 7, 2014) ................ 218a

REHEARING ORDER
Order of the United States Court of Appeals for
the Federal Circuit Denying Petitions for
Rehearing En Banc (March 17, 2021) ........... 250a

OTHER DOCUMENTS
Federal Circuit Disposition of CFC Trial Verdicts,
2001-20............................................................ 253a
Federal Circuit Takings Analysis: Awards of
Money to Property Owners Were Affirmed
Only in (RTT) and , the
Other 79 Being Reversed or Remanded ........ 255a
Select Document Excerpts .................................... 262a
Indicative Summary of Terms for Secured Term
Loan Facility (December 19, 2008) ................ 268a
 x

TABLE OF AUTHORITIES
Page
TA BLE O F AUTHORITIES

CASES
,
748 F.3d 1142 (Fed. Cir. 2014) ................. passim
,
961 F.3d 1380 (Fed. Cir. 2020) ......................... 12
,
966 F.3d 1347 (Fed. Cir. 2020) ......................... 36
,
953 F.3d 1344 (Fed. Cir. 2020) ......................... 32
,
597 F.3d 1356 (Fed. Cir. 2010) ......................... 21
,
568 U.S. 23 (2012) .......................................... i, 15
,
364 U.S. 40 (1960) ............................................. 28
.,
511 U.S. 531 (1994) ................................ 21, 31, 32
,
101 U.S. 16 (1880) ............................................. 16

, 141 S.Ct. 731 (2021) ........................ 11, 37

,
538 U.S. 216 (2003) .................................... passim
,
3 U.S. 386 (1798)................................................. 10
.,
556 U.S. 868 (2009) ........................................... 26
 xi

TABLE OF AUTHORITIES Continued

Page
,
540 U.S. 375 (2003) ........................................... 25
,
667 F.3d 1239 (Fed. Cir. 2011) ......................... 22
,
210 L.Ed.2d 369 (2021) ............................. passim
,
503 F.3d 1266 (Fed. Cir. 2007) ......................... 21
,
145 Fed. Cl. 243 (2019) ...................................... 1
,
547 U.S. 198 (2006) ....................................... ii, 26
,
482 U.S. 641 (1987) ........................................... 36
,
501 U.S. 868 (1991) ........................................... 27
,
558 U.S. 183 (2010) ........................................... 36
,
290 U.S. 398 (1933) ........................................... 19
,
U.S. S.Ct. Brief LEXIS 1254 (2015) .................. 17
,
576 U.S. 351 (2015)...................................... i, 17, 21
,
282 U.S. 399 (1931) ........................................... 35
,
574 U.S. 1104 (2015) ......................................... 36
 xii

TABLE OF AUTHORITIES Continued

Page
,
539 U.S. 69 (2003) ............................................. 36
,
338 U.S. 1 (1949) ................................ ii, 21, 31, 32
,
540 U.S. 443 (2004) ........................................... 27

, 889 F.3d 1331 (Fed. Cir. 2018),

., 2019 U.S. LEXIS 4211 (2019) .......... 12
,
505 U.S. 1003 (1992) .................................... 16, 37
,
292 U.S. 571 (1934) ........................................... 20
,
140 S.Ct. 1308 (2020) ......................................... 35

, 139 S.Ct. 1652 (2019) .... passim

,
137 S.Ct. 1933 (2017) .............................. ii, 15, 27
,
594 U.S. ___ (2021) ............................................ 40
,
438 U.S. 104 (1978) ................................... passim
,
260 U.S. 393 (1922)............................................. 13
,
502 U.S. 491 (1992). .................................... 18, 19
 xiii

TABLE OF AUTHORITIES Continued

Page
,
447 U.S. 74 (1980) ....................................... 30, 31
,
419 U.S. 102 (1974) ........................................... 19
,
467 U.S. 986 (1984) ........................................... 24
,
887 F.3d 1354 (Fed. Cir. 2018), .,
U.S. LEXIS 359 (2019) ..................................... 12
-
, 535 U.S. 302 (2002)ii, 11, 16, 21
,
841 Fed. Appx. 205 (Fed. Cir. 2020) ....... 1, 12, 30

, 138 S.Ct. 960 (2018) ....... 32, 34

,
323 U.S. 373 (1945) ........................................... 30
,
808 F.2d 1298 (8th Cir. 1987) ........................... 25
-
140 S.Ct. 1575 (2020) ................................ passim
.,
333 U.S. 364 (1948) ..................................... 32, 34
,
541 U.S. 267 (2004) ........................................... 35

, 449 U.S. 155 (1980) .................... 14

 xiv

TABLE OF AUTHORITIES Continued

Page
,
566 U.S. 463 (2012) ..................................... 25, 27

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V .................................................. 2

STATUTES
15 U.S.C. § 1863(c)(5) ................................................. 2
28 U.S.C.§ 1254(1) ...................................................... 1
The Consolidated Appropriation Act of 2010,
§ 747, PL 111-117, 123 Stat. 3220
(Dec. 16, 2009) ................................................... 23

JUDICIAL RULES
Sup. Ct. R. 10(a) ............................................... 9, 36, 41
Sup. Ct. R. 10(c)............................................................ 9

GOVERNMENT PUBLICATIONS
Congressional Research Service,

:
,
CRS Report R40005 (Dec. 17, 2008) ................... 4
DOJ Civil Resource Manual,
................. 29
 xv

TABLE OF AUTHORITIES Continued

Page

(2011) ................................................................... 3

OTHER AUTHORITIES
Alexander Hamilton,
FEDERALIST No. 78 (1788) ................................. 41
Basil H. Mattingly,
:

,
36 WILLAMETTE L. REV. 695 (2000) ................... 38
Benjamin H. Barton,

59 ALA. L. REV. 453 (2008) ................................ 14

Christopher Serkin,
:

,
37 IND. L. REV. 417 (2004) ................................. 14
Daniel R. Mandelker,

: ,
55 REAL PROP., TRUST & ESTATE L.J. 69
(Spring 2020) ..................................................... 38
 xvi

TABLE OF AUTHORITIES Continued

Page
Douglas Lind,

,
4 WASH. U. JUR. REV. 213 (2012) ...................... 35
F. Patrick Hubbard, Shawn Deery, Sally Peace,
John Fougerousse,

14 DUKE ENVTL. L. & POL Y F. 121 (2003-04) ...... 38

Gideon Kanner & Michael Berger,

,
50 URBAN LAWYER 1 (2019) ................................. 16
Harry T. Edwards,

,
1991 WIS. L. REV. 837 (1991)............................. 36
Richard A. Posner,
- ,
59 IND. L.J. 1 (1983) .......................................... 35
Robert G. Miller,
: :

-
65 TEX. B.J. 916 (2002) .................................... 36
Robert Meltz,

: , Congressional
Research Service (July 20, 2015) ...................... 38
 xvii

TABLE OF AUTHORITIES Continued

Page
Ross Saxer,

68 U. KAN. L. REV. 413 (2020) ........................... 14

Wright & A. Miller,
FEDERAL PRACTICE AND PROCEDURE (1971) ...... 27
 1

OPINIONS BELOW
The consolidated case opinion of the CFC is
, 145 Fed. Cl.
243 (2019). (App.12a). The Federal
consolidated case opinion is
, 841 Fed. Appx. 205 (Fed. Cir. 2020).
(Appx.1a). The interlocutory appeal decision is
, 748 F.3d 1142
(Fed. Cir. 2014). (App.218a).

JURISDICTION
The panel judgment was entered on December 29,
2020. Rehearing and rehearing were denied
on March 17, 2021. (App.250a). This Court has juris-
diction pursuant to 28 U.S.C.§ 1254(1).
 2

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
U.S. Const., amend. V
. . . [N]or shall private property be taken for
public use, without just compensation.

15 U.S.C. §§ 1863(c)(5)
THE CHRYSLER CORPORATION LOAN GUARANTEE ACT
The aggregate amount of nonfederally guaranteed
assistance of at least $1,430,000,000 required to
be provided under subsection (a) of this section
shall include . . . (5) at least $180,000,000 shall
be from suppliers and dealers, of which at least
$50,000,000 shall be in the form of capital as
defined in subsection (b).
 3

STATEMENT OF THE CASE

during the
liquidity crisis of 2008-09, the federal government
performed its admitted duty as lender of last resort
to restore liquidity to critical sectors of the American
economy.1 The Government precedented inter-
ventions prevented catastrophic damage threatened
by an imminent collapse of the national economy and
corporations it deemed too important to fail. 2
The Government deemed the American vehicle
manufacturing sector too important to fail and believed
an uncontrolled Chrysler liquidation risked collapsing
the domestic auto industry. While the Government
principal focus was on salvaging the jobs of thousands
of auto sector workers, its intervention benefited the
public by saving billions of dollars for the Pension
Benefit Guaranty Corporation and avoiding massive
federal and state financial losses. The intervention
was motivated also by the Obama Administration
efforts to realize political advantage for its actions.

1 The Government judicially admitted being an important cause

of the liquidity crisis and the deepening of its effects. ,

(2011).
2 Government testimony admitted it intervened to prevent the
collapse of systemically important firms as an integral part of
the plan to inject liquidity into the economy, not to benefit the
firms or their owners.
 4

The auto sector intervention in 2008-09 drastically

differed from the Government
1979. In 1979, Government loan guarantees enabled
Chrysler to successfully save itself as an entity.3 A
material part of that bailout was the Government
requirement that dealers and suppliers help recapitalize
Chrysler by investing $180,000,000. 4 In 2008, facing
insolvency caused by the liquidity crisis, Chrysler
requested rescue by the Government on terms as
before. But unlike 1979, the Government refused Chry-
entreaties for loans to save itself and, having
defined dealers as being part of the problem, excluded
them from being part of the solution.
Instead, the Obama Administration hired a team
of Wall Street dealmakers (the Auto Task Force
all lacking auto industry experience, to create restruc-
turing plans5 6 These
dealmakers reimagined the product distribution sys-
tems of General

of profitability was an excess of auto dealers. They

demanded the manufacturers significantly reduce

3 Congressional Research Service,

: ,
CRS Report R40005 (Dec. 17, 2008).
4 App.262a.
5 The Government did not bailout GM and Chrysler in 2009.
They were collapsed and their assets assigned to federally funded
new corporations in bankruptcy restructures.
6 App.263a.
 5

the number of dealers as a condition precedent to

continued governmental intervention.7
State laws protected the auto dealers from being
involuntarily terminated. The ATF believed that,
unless it created a Plan B to circumvent these state
laws, the Government would be required to purchase
the dealerships necessary to reduce the distribution
- 8 The Government valuation
of the average dealership to be terminated was an
estimated $1 million. Compelling the termination of
the Chrysler dealerships rather than purchasing them
saved it about $1.5 billion, an amount it later contex-
tually admitted
The predicate of the Government evade
paying the dealers for seizing their property was its

7 Created by Congress to audit the Govern

reduction requirements, The Office of the Special Inspector
Gener
concluded this requirement was ill-conceived. App.266a. The
ATF Chief Rattner detailed nine causes of -
ern -
and-effect rationale was wrong because the uncontradicted evidence
proved consumers: (1) found Chrysler dealer performance equal
to or superior to Toyota, the Govern dard; (2)
found dealer performance irrelevant; and (3) avoided purchasing
Chrysler vehicles viewed as unreliableand a poor value, despite
incentive discount rates 200% higher than its competitors. In
contrast, the ATF could not compel termination of Ford dealers
be its
dealers suffered performance or other losses despite no involuntary
termination of dealers.
8 Rattner believed state franchise laws . . . essentially require
. . . Thus, closures
were . . . expensive;
App.263a.
 6

strategy to use bankruptcy to preempt protective state

franchise laws.9 ATF Chief Steven Rattner touted

justified the refusal to pay the dealers for their prop-

erty as 10
The Government acted on its conviction that dealers
should simply tough it out and accept the outcome, to
11

-
realm for
hts for nothing. In
the Government terminated dealers did not
share the sacrifice: they were the sacrifice.
Like GM, Chrysler responded to the Government
requirement by proposing to reduce the dealer network
reduction by 25% within 18 months at no cost to
the Government. This dealer reduction would have
been achieved by December 2010 by dealers buying
each other out and through attrition without cost to
the Government or Chrysler. The Government
expert, Boston Consulting Group, supported the cred-

-existing voluntary
dealer reduction program 95% of which was financed
by the dealers themselves.
Chrysler executives informed the Government

9 Rattner knew the bankruptcy would be approved because the

Govern
gun to the head of the bankruptcy judge . . . .262a.
10 App.264a.
11 App.264a.
 7

Managers denounced the use of bankruptcy to reduce

the number of dealerships. After the Government
pressed again for acquiescence to its dealership
reduction requirement, Chrysler refused to change
rejected the Government bankruptcy
plan, and resisted the dealership network cuts until
the witching hour of the Government line.
Ultimately Chrysler was powerless to avoid having
to choose the manner of its commercial death.12 It
could either auction its assets in liquidation or
to allow the Government to form and capitalize a new
company
majority ownership to Fiat, a foreign car manufac-
turer.13
protect when it capitulated: its members acted to
avoid being held personally liable under bankruptcy
law.
The Government was wrong and
unnecessary. The Government knew it could shrink
the distribution network without buying or terminating
the property rights of any dealers. Voluntary trans-
actions between dealers and attrition would have
met the Government requirement
and avoided the uncompensated seizure of the
property taken through a raw exercise of Govern-
mental authority.
Because the free market would have shrunk the
dealership network to the desired level without cost
to the Government, this taking was entirely gratuitous.

12 The Government, as lender of last resort, admitted having

monopoly power over all sources of capital available to Chrysler.
13 Fiat is a foreign OEM.
 8

The Government
from being purchased by their competing dealers.
Only the Government insisted upon a plan whose
outcome was the involuntary termination of dealers
without compensation. The Government took the deal-
them
to other dealers for free based on conjecture that
replacement dealers would operate their new terri-
tories more profitably.
Petitioners sued for Takings Clause relief in the
CFC in 2010. The CFC held in favor of the Government
after trial in 2019. First, it held that Chrysler, not
the Government
that
compelled it to ignore the real-world value of the
property, it declined to hold the Government liable
because perty would have
been worthless in a hypothetical scenario since their
franchise contracts would have been rejected in a
bankruptcy that would have followed the Government
refusal to restructure Chrysler.
opinion ignored the crucial, uncontested fact the
Government analysis
disappearance need not completely destroy its dealers.
Most of the jobs and profits in a dealership come not
from sales of new cars but from service and used
cars. Both would be needed if Chrysler liquidated
(emphasis added). App.262a.
The Federal
latter reasoning and chose not to rule on the former
 9

REASONS FOR GRANTING THE PETITION

I. THE FEDERAL CIRCUIT S BUT FOR TEST SHOULD BE

REVIEWED UNDER SUPREME COURT RULE 10(A) AND
10(C) BECAUSE IT IS CONTRARY TO CONTROLLING
DECISIONS OF THIS COURT.

A. Relevant Takings Clause Concepts in Context.

The Takings Clause of the Fifth Amendment of the
Bill of Rights was the means chosen by the Founding
Fathers to protect the rights of private property owners.
It requires payment of just compensation when private
property is taken by the Government for public use.
, 210 L.Ed.2d 369,
380-82 (2021), a veritable takings law primer, defines
the key terms of the Takings Clause.
includes tangible, intangible, real,
and personal property. .14
.
, often referred to being

no title passes to the Government. Direct

takings can result when the effects of
Government action occupy the property. A
simple rule applies in a direct takings
case: the Government must pay for what it
takes. .

14 The property here includes the contractual rights of the

dealers to sell and service vehicles, parts, and related services
under the Chrysler brand in exclusive geographic territories.
 10

occur when Government

regulations unfairly restrict the use of private
property. Whether a use restriction consti-
tutes a taking requires a flexible analysis
that balances factors such as the economic
impact of the regulation, its interference with
reasonable investment-backed expectations,
and the character of the Government action.
.
The Government must pay just compensation

someone else [such as a third party] by what-

ever .
against
presume the Government
was entrusted with the power to engage in actions

, 3 U.S. 386 (1798). Notwithstanding that clarity,

two centuries later the Federal Circuit saw nothing
constitutionally wrong with the Government taking
compensation and giving
it for free to their competitors.
There were ominous warnings this could happen.
Justice Scalia presciently foresaw the Takings Clause
could be rendered futile in the circumstances like
those occurring here:
Perhaps we are witnessing today the emer-
gence of a whole new concept in Compensation
Clause jurisprudence: the Robin Hood Taking,
in which the Government ction of
wealth from those who own it is so cleverly
achieved, and the object of the Government
larcenous beneficence is so highly favored
 11

by the courts . . . that the normal rules of the

Constitution protecting private property are
suspended.
, 538 U.S. 216,
252 (2003) deployment
Government
from liability is the desultory realization of the
scenario warned of by Justice Scalia.
Justice Thomas provided insight as to how this
could happen when he purposefully recited concern
that current regulatory takings doctrine may be
subjective decision-

of the decision
141 S.Ct. 731 (dissent) (2021).

B. The Dismissal of the Takings Claim

for Failing to Satisfy an Element of a
Takings Case Is Contrary to
- and .
: it
appropriate to treat cases involving physical
takings as controlling precedents for the evaluation

- at 323 (2002).
Removing any chance of confusion on this stricture,
this Court reiterated that w taking has
occurred, . . . has no
at 382.
Disregarding
sole basis for dismissing this direct takings claim
was that the dealers failed to prove their
takings claim constituted an exception to the
 12

Government
. at 208, fn. 1. That unprece-
dented holding, buried in a footnote bereft of citation
of legal authority, found the dealers failed to prove
of
what might have occurred if the Government took no
action. That holding relied upon , the first appeal
of this case, where the Federal Circuit panel created
a new economic impact proof requirement in regulatory
takings15 cases.16
dealers to prove the hypothetical economic impact on
Government
intervention during a national liquidity crisis. The
Federal Circuit intends that defense to operate as
threshold barrier in a new territory it carved out
between takings liability and valuation issues.17
Grafting regulatory takings test into a
direct taking case was like trying to pound a square
peg into a round hole. The panel relied upon

15 stated the case before it at that time was not

a direct takings case.
16
for airport regulation and flood control projects.
887 F.3d 1354, 1366 (Fed. Cir. 2018),
., 2019 U.S. LEXIS 359;
, 889 F.3d 1331 (Fed. Cir. 2018), .,
2019 U.S. LEXIS 4211 (2019). As here, all these opinions were
authored by the same judge.
17 The Federal Circuit explained its
novel quasi-valuation
category distinct
from, the issue of causa , 961 F.3d
1380, 1383 (Fed. Cir. 2020) eral
.
 13

takings decision as exclusive authority for

denial taking claim ( . at 1150).
The liability issue in a takings case is
whether Government
restricting the use of private property.
, 260 U.S. 393, 415 (1922). Measuring
whether Government regulation
balancing of many factors, one of which with

the [government action] on the claimant

, 438 U.S. 104, 124 (1978).
The liability question in a takings case is
simple: did the Government take the property? Proof
Governmental action is
irrelevant to direct takings cases and not required.
In doing so, the panel disregarded the law holding
it is improper to graft taking elements
into the takings cases rescued the Government
from liability.

C.
Direct and the Regulatory Takings Claims Is
Contrary to Controlling Decisions of This Court.

1.
of a Footnote in
, 538 U.S. 216 (2003).
is based on a misreading
of footnote 11 in , at 240. footnote
did not announce a new liability barrier: it merely
stated a method of calculation of compensation being
used in an unusual set of factual circumstances. .
 14

predecessor
, 449 U.S. 155, 164 (1980), was express-
ly circumstance because the
challenged government program created income where

the client under any set of circumstance . Like

should be limited to its unique facts.
The state government program there also could not
generate net income without violating its rules. Thus,

consequence of . . . incorrect private decision

compensation due . . . for any taking of their property
. Thus, unlike , was shaped
by the ordinary considerations common to
properly decided takings cases.
footnote, relied upon by the Federal
addressed Gov-
ernment actions that create property value as an act
of genesis not as acts impacting property that
already had obvious value. 18 , Christopher
Serkin, :
,
37 IND. L. REV. 417 (2004); Ross Saxer,
68 U. KAN. L. REV. 413 (2020). Thus, in
this regard, is . Benjamin H. Barton,

59 ALA. L. REV. 453, 482 (2008).

The Federal Circuit, having expanded
footnote into a rigid categorical test for
takings, here applied it as a liability barrier to the
takings claim (not as a compensation issue as

18 That the dealerships had obvious value is not contestable:

the Government believed it was nearly $1.5 billion.
 15

in
by this Court or an Federal Circuit.

2.
by carving out a categorical exception to
Takings Clause liability and conflicts with
by obviating the requirement
to balance the factors.
The panel affirmed the dismissal of the direct and

test. It is reversible error to use a categorical test to

bar be-
cause it acts as a blanket exclusionary rule.
In , at 24, this Court unanimously
reversed the Federal exemption
of direct takings liability for Governmental temporary
flooding impacting private property. This Court
circumstances of

at 39.
Similarly, in the context of regulatory takings,

is the converse of the requirement to balance

factors. Because
regulatory takings jurisprudence . . .
the use of categorical rules is prohibited.
1943. Instead, federal courts always are required
. 19
Proof that this was categorical is that the panel
ignored significant balancing factors including:

19 at 124, partially listed those factors.

 16

harm can be avoided through measures taken

by the claimant and the Government . . .
, at 1031 (1992).
the fact that the taking was gratuitous (in
stark contrast to the doctrine of necessity
and the requirement of proportionality),20

for takings to benefit the public under the

official Government

the fact that the economic losses suffered by

terminated dealers like Petitioners were
disproportionate.
Categorical tests are only permitted to establish
takings liability, not deny Government
physically takes possession of an interest in property
for some public purpose, it has a categorical duty to
compensate -
at 322;
intervention,
the Federal Circuit will continue to create and impose
judicial thumb [is] firmly
on the Government
scales in takings cases. Gideon Kanner & Michael
Berger,
, 50 URBAN LAWYER 1, 34 n.140 (2019).

20 Permitting such gratuitous takings sidesteps the protective

cautions devel 1029, fn.
16 (1992); , 101 U.S. 16, 18-19 (1880).
 17

3. but
Prohibition on Hypothetical Takings
Analysis.
In , ,21 the Government denied liability
on the ground that plaintiffs failed to prove the

Government ensuring the existence of

the raisin market. It urged this Court to adopt its
- :
if a taking occurred, there is no constitutional violation-
and no remedy required
, 2015 U.S. S.Ct. Brief LEXIS 1254,
*89. The Government appropriate
to consider what value all of the raisins would have
had in the absence of the marketing order . In
other words, the Government demanded that property
owners be required to prove as fact a conjecture of
what would have happened if the Government did
nothing.
Chief Justice Roberts, writing for the majority,
rejected the Government -
Government cites no support for its
hypothetical-
compensa-
tion at 368.
Astonishingly, the panel adopted the losing argu-
ment in
The panel solely relied on a circular reference to

test. It was breathtaking that the panel lodged its

21 was decided after .

 18

decision of an unbriefed, question of first

impression22 in a footnote and then designated it as
non-precedential.

4. but test created an unworkable

standard contrary to the controlling decision
of , 502
U.S. 491 (1992).
at 130, limits the

Government
property owner complains. Petitioners pinpointed that
particular Governmental action in the CFC:
Government took an action by which it compelled
Chrysler to terminate a subset of its dealers. It is the
Government The CFC
responded by saying: correct
But the Federal Circuit panels misstated the
Government
complained and substituted their own definitions for
that of the dealers. The panel contextual references
Government
Government intervention
Government requirement
is an unworkable standard given the wide variety of
potential actions. These ambiguous substituted terms
could have meant many of the following: Government
financial assistance only to Chrysler after the bridge
loan, or before the bridge loan, or reaching back to

both GM and Chrysler, or to the entirety of financial

22
raised during oral argument.
 19

intervention to auto financing, parts suppliers, states,

tax breaks, energy subsidies, and a myriad of other
federal interventions to restore liquidity. Federal
intervention included, , Cash for Clunkers,
massive vehicle pre-purchasing, supplier guarantees,
and the $17 billion bail-out of GMAC which specifically
enabled the Government to participate in choosing
which Chrysler dealers to terminate.
The CFC agreed
Government action was ambiguous but failed to
. This formulation
creates a heuristic morass and conflicts with the re-
quirement of workable standards for legal tests.
at 504.

5.
Carefully Developed Mosaic of Cases
Instructing How to Value Property
Taken During Economic Emergencies
into a License to Seize Valuable Property
Without Paying for It.
First, economic emergencies do not suspend the
Constitutional requirement of just compensation for
taking private property.
, 290 U.S. 398 (1933). Strikingly similar to
this case, the precedent of the
, 419 U.S. 102 (1974) is highly instructive.
transportation crisis [was]
precipitated when eight major railroads . . . entered
[bankruptcy] reorganization proceeding at 108.
Those railroads would have failed without Government
intervention. Just as in 2008-09, the Government
intervened because the railroads were too important
to be allowed to fail. Just as in 2008-09, the Government
 20

dissolved the operating companies, created a new

entity, and anointed non-Government corporations to
operate and own the new entity.
As in 2008-09, the Government knew the railroad
property was obviously valuable. It decided to pay for
the property it was taking but only equal to or less
than the Congressionally approved sum. That was
drastically different than here, where the Government
rolled the dice on the legality of its strategy to use
the bankruptcy code to immunize itself from liability
for the obvious value it placed on the Chrysler
dealerships: nearly $1.5 billion.
This Court granted certiorari to review the Con-
gressional attempt to limit compensatory relief for
railroad creditors and held the Fifth Amendment
requires the Government to pay property owners for
property it takes, even during economic emergencies.
. at 126.23 Significantly, it rejected Government
insistence that valuation compensation be computed
on a hypothetical, speculative basis. . at 146-47.
decision relies upon a snapshot
of value taken in the peak of the liquidity crisis when
the
be satisfied (because in a national liquidity crisis
there are no buyers and sellers free from compulsion
of the circumstance decision
flies in the face of controlling precedent expressly

23 Similarly, when the Government attempted to wipe out its

financial obligations to World War 1 military insurance policy
holders to save money during the Great Depression, this Court
held policy holders had the right to a Fifth Amendment remedy,
notwithstanding the economic emergency. ,
292 U.S. 571 (1934).
 21

to normalize after economic emergencies and denies

permission for the Government to value its takings
at 538-39; ,
; .
, 597 F.3d 1356, 1370 (Fed. Cir.
2010).
Third, the underlying purpose
test might be sound if it was needed to prevent
property owners from using the Takings Clause to
profit from a windfall at the expense of the public.
But it is not needed. This Court already has a
method of avoiding such windfalls the black letter
law doctrine of offsetting benefits.
at 137. The Federal Circuit knows that doctrine
well: it properly applied it to benefit the Government
in , 503 F.3d 1266
(Fed. Cir. 2007) ( ).
For reasons unknown, the Federal Circuit invented
a new, unnecessary and incorrect method to avoid
such windfalls when, eschewing the economic impact
of what Government actually did, it required the
dealers to prove the hypothetical economic impact of
what might have happened if the Government did
nothing.

of the Government concern about what

might have happened in the hypothetical (not real)
world. . And, as if that was not enough,
another consequence of
unfair and unlawful switching of the burden of proof
required by the offsetting benefits doctrine. The Gov-
ernment, not the dealers, was required to bear the
burden of proof to establish offsetting benefits to
 22

plaintiff
667 F.3d 1239, 1245 (Fed. Cir. 2011).
Finnin and Guetterman dutifully followed the
law at trial by properly subtracting the value of the
offsetting benefit of the Government
reduction requirements (the specific Government action
they complained about); the Government having made
no proffer of evidence of offsetting benefits.

immunize Government from liability when taking

Governmental action. Simply put, it licenses the Gov-

ernment to opportunistically seize obviously valuable
property without paying for it during an economic
s imagination reels at the limitless
possibilities if this is to be the law.

II. THE METHODS USED TO DISMISS THE DIRECT

TAKINGS CLAIMS CONTRADICT THIS COURT S
CONTROLLING PRECEDENTS AND DEPART SO FAR
FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS THAT THE EXERCISE OF THE
COURT S SUPERVISORY POWER IS JUSTIFIED.

A. The Government Did Not Defend the Direct

Takings Claim.

1. The direct takings claim was uncontested

at trial.
The factual basis of the direct takings case rests
on uncontested trial evidence
valuable core property right was their territorial
exclusivity of the Chrysler brand to sell vehicles and
related parts and services. Uncontradicted evidence
 23

proved the Government required dealer terminations

resulting in the involuntary transfer of those rights
of exclusivity to itself, as the judicially admitted
controlling shareholder and24 beneficial owner of
Chrysler, which were transferred later to other dealers
for free.
The Government chose not to defend the direct
takings claim at trial.
The CFC, inexplicably, made no findings of fact nor
conclusions of law concerning the direct takings claim,
despite it having been proven by the preponderance
of the evidence (there being no contrary Government
evidence or argument).
The legal basis of the direct takings claim is the
principle that the Fifth Amendment protects the
commercial property right to exclude competition
through exclusive territoriality. This Court recently

funda-
mental element of the property right, falls within
this category of interests the Government cannot
take without compensation at
382.
in the competitive advantage over others that [its
owner] Monsanto enjoys by virtue of its exclusive

24 App.265a. The Government had power over the disposition

of the Chrysler and GM transferred dealerships. The Consoli-
dated Appropriation Act of 2010, § 747, PL 111-117, 123 Stat.
3220 (Dec. 16, 2009). It is self-evident that without that power,
the manufacturers could not have been required to return the
franchises to the original dealers.
 24

rights. , 467 U.S. 986,

1011 (1984).
Here, as in , the Government
appropriate[d] for the enjoyment of third parties the
Government
has physically taken property for itself or someone
else has
occurred, and
.

2. The direct takings claim was uncontested

on appeal.
The direct takings claim was a centerpiece of the
Finnin and Guetterman appellate briefs. The Gov-
ernment, again, chose not to defend this claim on
appeal, despite being granted extra time and an
increased word count. Nor did it offer an excuse for
its lack of response.
The Government

that an incontestable case for compensation

categ provide
deliberate
physically take private property.
, 2021 U.S. S.Ct. Briefs Lexis 11, No. 20-
107, Jan. 7, 2021.
Like its arguments, it could not
ethically cite any background principles of state
property law justifying this Government-authorized
taking because it admitted state laws barred the
proposed terminations. .
 25

B. Interjection of a
Direct Takings Defense for the Government
Violated Four Core Tenets of the Administration
of Justice.

1. The panel violated the principle of party

presentation.
Federal frame
the issues for decision -
, 140 S.Ct.
principle of party presentation requirement is
fundamental to our adversarial system of adjudica-
tion ter of
.

parties represented by competent counsel know what

is best for them and are responsible for advancing
the facts and argument
540 U.S. 375, 386 (2003)
particularly
true of counsel for the United States, the richest,
most powerful, and best represented litigant to appear
, 808 F.2d 1298,
1301 (8th Cir. 1987) (Arnold concurrence).
Only in narrow and extraordinary circumstances,
not present here, may an appellate court raise a
defense on its own initiative. , 566
U.S. 463, 472 (2012) federal court does not have
to depart from the principle of party
presentation .
Writing for the Court, Justice Ginsberg emphasized
currence in , , which
-
ments of Government
 26

- at 1579.
intervention to rescue the Government
from liability on the direct takings claim was a
heavy-handed tipping of the scales of justice. Not
only does the judiciary need to be impartial: it needs
. at 890 (Roberts, C.J.,
dissent). By raising its novel defense for the Govern-
ment, , the panel abandoned its role as a
that a
fair trial in a fair tribunal is a basic requirement of due
., 556 U.S.
868, 876 (2009).
The party presentation rule prohibited the panel
from interposing a defense to benefit the Government,
much less creating one out of whole cloth.

2. The refusal of supplemental briefing

after the surprise injection of a novel
defense violated controlling precedent.

interposed by the court without opportunity to reply

in advance, was met by an unexplained refusal. It is
a
a court must accord the parties fair notice and an
opportunity , at
210.
The panel abused its discretion by failing to pro-
vide the dealers with fair notice of its intent to inject
a defense to benefit the Government and to permit
supplemental briefing before or after acting upon its
own initiative.
 27

3. Controlling precedents forbid interposing

a waived or forfeited defense.
The Government either waived or forfeited any
ture is
the failure to make the timely assertion of a right
while waiver is the intentional relinquishment or
,
540 U.S. 443, 458, fn. 13 (2004). 470, fn. 4 (2012)
party forfeits the right to advance on appeal a non-
jurisdictional claim, structural or otherwise, that he
501
U.S. 868, 894 (1991) (Scalia concurrence). Forfeiture
nicality and is essential to the
orderly administration
Miller, FEDERAL PRACTICE AND PROCEDURE § 2472, p.
455 (1971).
Federal courts are not permitted to decide cases
on arguments waived by a party. This Court used its
supervisory authority to reverse the Tenth Circuit
for abusing its discretion when it raised a defense
for the Government
court is not at liberty . . . to bypass, override, or excuse
deliberate waiver of a . . . defense. ,
at 466. It reversed the Ninth Circuit for abusing its
discretion when, , it raised an outcome-
determinative issue not raised by the parties. -
at 1579.

4. The decisions below are contrary to

controlling decisions mandating fairness
and justice in every takings case.
The panel decision conflicts with the fairness

cases. , . , even the erroneous

 28

, 364 U.S. 40,

49 (1960), if it compared the Government
(terminating dealers without compensation) to a
hypothetical Government decision not to act (what

proposal to allow dealers to purchase each other).

But it did not.

Government from liability. There was nothing fair or

just for the Federal Circuit to refuse to apply controlling
precedents.

III. THE RULING THAT DEALERS PROPERTY WAS

WORTHLESS IN A HYPOTHETICAL BANKRUPTCY
WORLD IS CONTRARY TO CONTROLLING PRECEDENTS
OF THIS COURT.

A. The Affirmance That Rejection Would Render

to
The CFC required the dealers to prove their
property had economic value in an imaginary world
where the Government did not intervene.25 The CFC
found the dealerships would be worthless in the
hypothetical world because two assumed events would
both occur: (1) Chrysler would declare bankruptcy,

agreements which, as a matter of law, would auto-

25 That required ignoring the law (the Govern testimonial

admission it has the duty to intervene) and key facts (the Gov-
ern sion that GM and Chrysler were too important to
fail).
 29

worthless.26

establish
rights of franchisees or leave them worthless.
at 1659. Like the CFC, it conflated
with , diametrically opposed concepts both
in substance and procedure controlling the survival
of franchisee rights in bankruptcy. at 1663.
con-
tract that leaves intact the rights of franchisees.
Rejection of an executory contract
rights that the contract previously . at
1666. In contrast, the substantive effect of an
order is elimination of franchisee rights.
Government briefs and oral argument in
along with its legal manuals, painstakingly distinguish

the contract. . . . the terms of the contract still control

the relationship Civil Resource
Manual, , § 60. It
admitted that terminating franchisee rights would

Briefs, at 42-43, and warned

extinguishing franchisee rights through rejection would
precedent . . . that . . . undermines the
... ,
2018 U.S. S.Ct. Oral argument, LEXIS Tr. 24:3-11

26 Petitioners contested being required to speculate what would

happen if the Government did not intervene and contested the
second assumption as a matter of law because a bankruptcy court
cannot reject franchise agreements where franchisee assistance
is needed to efficiently liquidate estate assets.
 30

(Feb. 20, 2019). Furthermore, the Government repre-

sented to this Court that, procedurally, an
requires an adversary proceeding -
blown federal
2018 U.S. S.Ct. Briefs LEXIS 4815 at 34, fn. 4.
The error in
failing to distinguish between rejection and avoidance.
Furthermore, and other controlling cases
hold that rejected franchise contracts still contain
property rights inhering in those franchise agreements.
As a matter of l
included a suite of rights inhering in the franchise
contract precedents unambiguously
protect
contract.
, 447 U.S. 74, 82, fn.6 (1980);
323 U.S. 373, 378 (1945).
The Government never contested the definition
of those franchise rights, established as unrebutted
fact by industry experts and dealers, and virtually
identical to the list of continuing dealer activities

silent on the crucial fact that Government and dealer

witnesses agreed the dealers would have maintained
profitable service operations as Chrysler-branded
dealers for three to seven years. , III.C, .
The panel compounded its errors by affirming

inhering in the franchise agre

reliance on , 959 F.3d 1081,
1087 (Fed Cir. 2020), affirming that the only property

the requirement entire group of

 31

rights inhering in contract. ,

(emphasis added); . That error
disregarded the wide range of valuable rights inhering
in the franchise agreements.
The rejection of
valuations of their franchise agreements was based
on another two-step reasoning process:
on premises about how Chrysler or a bankruptcy
trustee would have treated the franchise agreements
in . . . and that the expert opinion of Ted

Chrysler franchisees would remain in full force and

. It was wrong on both points because the
concept of rejection is entirely irrelevant. Under
, regardless
ve
remained intact.
The Government
was to make no comprehensive
briefing of the law showing that the worthlessness
conclusion was founded on fundamental legal error
concerning
law concerning rejection, it was not an ordinary
error:
cases to provide the Government with an escape to
Fifth Amendment liability.

B. The Affirmance of Requiring Proof of Fair

, 338 U.S. 1 (1949)

and , .
Private property is not rendered worthless just
because no marketplace for buying and selling busi-
ness property exists at the height of a national crisis.
 32

FMV
methodologies was contrary to and which
held that, where there is no market price due to
exigent circumstances and because fairness requires
avoidance of extreme outcomes and inflexible tests,

measure of compensation is the rental that probably

27

C.
Historical and Subsidiary Fact Findings
Concerning the Profitability of the Exercise
of Franchisee Rights After Rejection is Contrary
to .,
333 U.S. 364 (1948) and
., 138
S.Ct. 960 (2018).
In disregarding , the
CFC failed to discharge its duty to make proper
historical and subsidiary fact findings concerning the
uncontroverted evidence establishing that the dealers

rights even after a hypothetical Chrysler bankruptcy

rejection.

27 The affirmance discredited Stockto ion for

including income stream profits and elements
of arate from the franchise in conflict
with and . ,
, 953 F.3d 1344 (Fed. Cir. 2020)
rental income, rather than fair market value, is the appropriate
measure of economic impact because that is what the Govern-
ment actu
change in fair market value approach would not accurately
account for the fact that the Governmental action targeted their
ness con . 1354.).
 33

A prime example was the Government

admission that its analysis
disappearance need not completely destroy its dealers.
Most of the jobs and profits in a dealership come not
from sales of new cars but from service and used
cars. Both would be needed if Chrysler liquidated
(emphasis added).28
Reinforcing that admission, additional trial evi-
dence proved the suite of franchisee rights enabled
the dealers who were not forced to be terminated to
continue profitable Chrysler-branded operation post-
liquidation. It was unrebutted that 31,000,000 Chrysler
vehicles would need service and parts, and that
franchisee rights would provide the post-bankruptcy
dealers with competitive advantages for service-related
work including branded dealers, branded training,
branded parts, branded service provider computer
diagnostic electronics and engine system codes,
Chrysler specialized tools, and goodwill of established
Chrysler locations like Finnin Motors and Guetterman
Motors, who had been operating in their communities
for decades.
Those continuing valuable franchisee advantages
were independent of Chrysler warranty payments.
Because customers would pay for services and parts
out of their pockets without Chrysler warranties,
Government and plaintiff witnesses agreed customer-
pay29 repairs would be profitable for three to four
years. The Government offered no defense for the
evidence that

28 App.263a.
29 -
the labor or parts for the repair.
 34

warranties also would be available from private

sources. These failures to make findings conflict with
the controlling decisions in at 966
and , at 395-96,
Also, in conflict with , the panel
affirmed erroneous conclusions that franchisee rights
to service millions of Chrysler vehicles were worthless
upon rejection and that Te opinion
for the dealers was properly excluded for assuming
the Government would have continued to cover
Chrysler warranties after Chrysler liquidated in a

That affirmance was simply wrong. Stockton

presented separate valuation scenarios, one of which
expressly excluded Chrysler warranty payments. He
calculated value with and without assumption of
Chrysler warranties,30
Tellingly, no Government expert trial witness attacked
analysis.31
Finally, it was uncontroverted that the Govern-
ment territories
such as those of Finnin and Guetterman would be
more profitably operated by other franchisees. It acted
to take and transfer these rights despite knowing
that the ineffective Chrysler dealerships were pur-
chased already by other dealers. The CFC made no
findings about these facts and the panel was oblivious
to cited, controlling law that the Government must
compensate prior owners when it takes property to

30 timony and exhibits painstakingly

differentiated warranty from non-warranty assumptions.
31
 35

divert it to other uses it decides would be more

productive, provide a political advantage to the
current administration, or benefit society as a whole.
, 282 U.S.
399, 408 (1931).

IV. TRADITIONAL CONSIDERATIONS SUPPORT THE

ISSUANCE OF A WRIT OF CERTIORARI.

A. The Petition Does Not Request Mere Correction

of a Legal Error.
Petitioners are not complaining about a few isola-
ted errors of law: what occurred below was a wholesale
indifference to controlling precedents amplified by
blatant violation of the party presentation rule and
denial of the right to reply to a defense
interjected to benefit the Government. Such indiffer-
ence could only have been occasioned by result-oriented
reasoning.
Result-oriented reasoning is universally condem-
ned as an improper judicial decision-making method.
, 140 S.Ct.
32
1308, 1331, fn. 14 (2020). It is the converse of the
universal belief that
must be principled, rational, and based upon reasoned
, 541 U.S. 267, 278
(2004). As a former federal appellate judge implored:

reject result-oriented decision-making and adhere

strictly to the ideal of principled decision-making, both

32 Douglas Lind, ,4
WASH. U. JUR. REV. 213, 217-18 (2012); Richard A. Posner,
- , 59 IND. L.J. 1, 8 (1983).
 36

to defend constitutional liberties and to defend itself

against an institutional devaluation in the eyes of

,
1991 WIS. L. REV. 837, 840.33
result-oriented reasoning, clear-
ly -justifies-the-means
Robert G. Miller, : :
-
TEX. B.J. 916, 917 (2002), is unconstitu-
tional because it is beyond debate that Constitu-
tion . . . is concerned with means as well
at 383.
The exercise Rule 10(a) supervisory
power is the only obstacle to the Federal
determined dismantling of the guarantees of the
Takings Clause. - is the most
recent but not the only case where this Court invoked
that power. : , 558 U.S.
183, 196 (2010); , 482 U.S. 641, 645
(1987); , 539
U.S. 69, 74 (2003); ,
, 574 U.S. 1104 (2015) (Alito, J.,
dissenting).

33 Federal Circuit judges themselves have openly criticized the

-oriented judicial occurring in that circuit.
dissents of Judges Moore and in
, 966 F.3d 1347, 1366 (Fed. Cir. 2020) and
967 F.3d 1285, 1305 (Fed. Cir. 2020) (patent cases).
 37

B. -
but -Stepping of
Controlling Precedents Will Have a Significant
Impact Beyond the Decision.

1.
Will Unduly Expand the Immunization of
the Government from Takings Liability.
in
analyzed the abysmal state of Takings Clause juris-
prudence. Noting that only 1.6% of 1,700 34
claims were successful from 1992-2017, he cited legal

it invites unprincipled, subjective decision

dependent upon the decision-maker . (emphasis
purposeful citation of that
concern about unprincipled decision-making enabling
outcomes dependent on the identity of the decision-
makers provides a frame of reference for focus on the
actual data directly related to it.
Additional federal court statistical data further
substantiates his concerns because it demonstrates
that:

34 , 505 U.S. 1003 (1992).

 38

Where the decision-maker was the Supreme

Court, Takings Clause relief was granted to
35% of private property owners from 1979-
2015. , Robert Meltz,
: ,
Congressional Research Service, 7-5700, 97-
122 (July 20, 2015).35
In stark contrast, where the decision-maker
was the Federal Circuit, the claims of private
property owners were found sufficient to
justify monetary relief in only two of 81
takings case appeals from 2001-2020. App.
253a.
It is shocking that the Federal Circuit
affirmed only one of 16 CFC trial verdicts
entered in favor of private property owners
between 2001-2020. App.255a.
Review by this Court will help assure private
property owners that the judicial system is not rigged
in favor of the Government and ensure that the Fifth
Amendment

35 , Daniel R. Mandelker,
: , 55 REAL
PROP., TRUST & ESTATE L.J. 69, 96-97 (Spring 2020); F. Patrick
Hubbard, Shawn Deery, Sally Peace, John Fougerousse,

14 DUKE ENVTL. L. & POL Y F. 121 (2003-04); Basil H. Mattingly,

: -
, 36 WILLAMETTE L. REV. 695 (2000).
 39

2. Review Is Necessary to Assure Fair

Hearing to the GM Dealers Whose Case
Awaits the Finality of the Chrysler

This case was filed more than 13 years ago by

the GM and Chrysler dealers. After three motions to
dismiss, one interlocutory appeal, and an unsuccessful
Government motion for summary judgment in the GM
side of the case, the CFC acceded to the Government
request and bifurcated the GM dealer claims. The
CFC order stopped all progress in the GM side of the
case until a final decision is issued in the Chrysler case.
In contrast to the Federal
granting interlocutory appeal to provide guidance to

issued its decision as non-precedential. That design-

ation had the practical effect of denying guidance to the
claims.
Review by this Court is necessary to provide gui-
dance in what surely will be another lengthy and
expensive case to prosecute and to provide prophylactic
avoidance of another appeal.

C. This Case Provides a Unique Opportunity to

Answer the Questions Presented Here and to
End the Result-Oriented Reasoning Used by

Controlling Precedents.
There are no aspects of this case which would
distract from the ability of this Court to direct the
Federal Circuit to enforce the Fifth Amendment by
following its precedents and to avoid even the
 40

semblance of result-oriented decision making in takings

cases favoring the Government.
Granting review by issuing a writ of certiorari
will make less likely federal Takings Clause juris-
relation
of the Constitution. , 512 U.S.
374, 392 (1994); , 139 S.Ct. 2162,
2170 (2019); , ;
, 594 U.S. ___ (2021).
 41

CONCLUSION
Constitutional guarantees are only as effective
as the ability to vindicate them, Alexander Hamilton,
FEDERALIST No. 78 and 80 (1788) super-
vision under Rule 10(a) is necessary to ensure enforce-
ment of the Fifth Amendment s Takings Clause.
The petition should be granted for the reasons
stated above.

Respectfully submitted,

HARRY W. ZANVILLE

10740 EL MARBEA LANE

LA MESA, CA 91941
(619) 400-7164
HWZLAW@GMAIL.COM

RICHARD FAULKNER
12770 COIT RD., SUITE 720
DALLAS, TX 75251
(972) 427-1500
JAMES H. ARENSON
ARENSON LAW GROUP, P.C.
425 2ND ST., SE #900
CEDAR RAPIDS, IA 52401
(319) 220-5850

AUGUST 12, 2021