Amicus Briefs

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Pung v. Isabella County, Michigan

Filed in December 2025 In Pung v. Isabella County, Michigan, the Supreme Court is considering whether the government may take and sell a home to satisfy a tax debt while keeping the property’s remaining value. The Buckeye Institute, National Federation of Independent Business Small Business Legal Center, Competitive Enterprise Institute, Mountain States Legal Foundation, Illinois Policy Institute, and Owners’ Counsel of America filed an amicus brief supporting the petitioner. The brief argues that the Fifth Amendment requires the government to provide just compensation when it takes property, including the equity a homeowner has built in that property. The case involves Timothy Scott Pung’s property, which Isabella County valued at $194,400. The property was later sold at a foreclosure auction for $76,008 to satisfy $2,241.93 in unpaid property taxes. The purchaser subsequently sold it for $195,000. The brief argues that the large gap between these figures raises serious questions about whether Pung received just compensation for the property’s equity. The brief also asks the Court to provide clear guidance on tax lien foreclosures more broadly. It argues that governments must have procedures that result in just compensation when property is taken to satisfy a tax debt. The brief was authored by Jay R. Carson, counsel for The Buckeye Institute. Read the full brief here.

Pena v. City of Los Angeles

Filed in November 2025 Owners’ Counsel of America and the Small Property Owners of San Francisco Institute filed an amicus brief supporting rehearing en banc in Pena v. City of Los Angeles, a case arising from the destruction of a Los Angeles print shop during a police operation to apprehend an armed fugitive. The brief argues that the Ninth Circuit panel erred by focusing on the good faith of the officers and the public-safety necessity of their actions. According to the amici, those considerations do not create an exception to the Fifth Amendment’s Takings Clause and the government’s obligation to provide just compensation is categorical when private property is taken or destroyed for a public purpose. Relying on Supreme Court precedents such as Knick v. Township of Scott and Pennsylvania Coal Co. v. Mahon, the amici argue that the legitimacy of a government action and the obligation to compensate a property owner are separate constitutional questions. Even when government officials act lawfully and in the public interest, the brief asserts, the Constitution may still require compensation for the resulting burden placed on private property owners. The amicus brief was authored by Michael M. Berger of Manatt, Phelps & Phillips LLP. Read the full brief here.

McGee v. Alger County Treasurer

Filed in October 2025 In McGee v. Alger County Treasurer, the U.S. Supreme Court is requested to consider whether Michigan’s process for recovering surplus equity after a tax foreclosure violates the Takings and Due Process Clauses. The Buckeye Institute, Manhattan Institute for Policy Research, National Federation of Independent Business Small Business Legal Center, and Owners’ Counsel of America filed an amicus brief supporting the petitioners. The brief argues that the Fifth Amendment’s just compensation requirement is categorical. According to the amici, Michigan created procedural barriers that can prevent homeowners from recovering surplus equity after a tax foreclosure, rather than providing a process that protects their constitutional right to compensation. The amici also point to procedures in other states that give homeowners more time and clearer processes to claim excess proceeds. They ask the Court to grant review, reverse the lower court’s decision, and establish a baseline for due process in excess equity claims. Read the full amicus brief by Jay R. Carson here.

Hoffman v. WBI Energy Transmission, Inc.

Filed in August 2025 Owners’ Counsel of America filed an Amicus Brief urging the U.S. Supreme Court to review Hoffman v. WBI Energy Transmission, Inc., a case concerning how just compensation should be determined when private companies exercise eminent domain authority under the Natural Gas Act. The Third, Fifth, Sixth, and Eleventh Circuits have held that state law supplies the measure of compensation in these cases, while the Eighth Circuit held that property owners are entitled only to the constitutional minimum required by the Fifth Amendment. OCA argued that the Eighth Circuit’s ruling creates a circuit split and threatens state-law protections that provide property owners greater compensation rights than the federal constitutional floor. At issue in Hoffman is North Dakota’s protection allowing property owners to recover attorneys’ fees and costs in condemnation proceedings. OCA argued that these protections are part of the compensation rights North Dakota has chosen to provide and should not disappear simply because a private pipeline company exercises federal condemnation authority under the Natural Gas Act. The brief emphasized that the federal constitutional standard establishes a floor rather than a ceiling for just compensation and noted that numerous states provide additional protections, including recovery of attorneys’ fees and litigation costs in certain condemnation cases. OCA warned that the Eighth Circuit’s approach would strike state-created rights to attorneys’ fees in six of the seven states within that circuit and place them at risk in at least fourteen others. The brief surveyed the relevant law in more than twenty […]

Lozman v. City of Riviera Beach

Filed in February 2025 Owners’ Counsel of America joined the Small Property Owners of San Francisco Institute, KDP II, LLC, and the Franklin Conklin Foundation in filing an Amicus Brief urging the U.S. Supreme Court to review Lozman v. City of Riviera Beach. The groups argued that lower courts have created confusion in applying Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), by focusing on whether regulated property retains some value rather than whether the owner retains an economically beneficial or productive use of the property. The brief emphasized that the right to make productive use of property is central to ownership. According to the amici, some lower courts have effectively converted the Lucas standard from one concerned with use into one concerned with value, allowing residual property value or hypothetical uses to defeat a takings claim even when the remaining uses are not economically productive. The brief noted that Lucas pairs the word “use” with “economically beneficial” or “economically productive” thirty-seven times, arguing that those qualifying words were included deliberately and that an analysis stopping at the existence of some remaining use is incomplete. The amici drew a direct comparison between Lucas, where the property owner could maintain a deck but not a home, and Lozman, who could maintain a dock but not a home. In both cases, the brief argued, the regulation permitted the owner to assemble some planks of wood and sit on them, and nothing more productive than that. The groups urged the Supreme […]

Gym 24/7 Fitness, LLC v. State of Michigan

Filed in February 2025 In February 2025, Owners’ Counsel of America and the NFIB Small Business Legal Center filed an Amicus Brief. It urged the U.S. Supreme Court to hear petitions from Michigan businesses closed under pandemic-era shutdown orders. The petitioners included a gym and a bowling center. The companion petition, Mount Clemens Recreational Bowl, Inc. v. Hertel, was filed alongside Gym 24/7. Michigan courts rejected their takings claims, finding in part that the properties retained value despite lost revenue. The brief emphasized that the test from Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), has left regulatory takings law without workable standards. Property owners rarely win under it, and the same precedents can produce opposite results. One court found no taking at an 83.4% loss in value, while another found a taking at 73.1%. See Amicus Brief at 8. OCA and NFIB urged the Court to measure takings by effects on productive use rather than residual value. As the brief explained, a gym or bowling center earns its return by opening its doors. A shutdown takes that use away entirely. It also distinguished Tahoe-Sierra Preservation Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002), which involved a development moratorium on undeveloped land instead of operating businesses. OCA further argued that a legitimate public health goal does not excuse the government from paying compensation. The U.S. Supreme Court denied the Gym 24/7 petition on June 2, 2025. The amicus brief was authored by Michael […]

Memmer v. United States

Memmer v. United States

Owners’ Counsel of America, along with four other national property rights groups recently filed an Amicus Brief challenging the U.S. government’s request to revisit a property owners’ takings claim based on the Trails Act. The groups’ brief noted that several of the court’s rulings dating back two decades established a clear precedent on the matter which the government was clearly seeking to overturn. Established precedent holds that the Trails Act gives rise to a per se physical taking (not a regulatory taking) of a landowner’s private property when the government first invokes section 8(d) of the Trails Act.

Tyler vs. Hennepin County

No. 22-166

Geraldine Tyler, age 94, owed Hennepin County $2,300 in unpaid property taxes on her Minnesota condominium. When that small amount ultimately generated $12,700 in fees, the County seized her condo and sold it to pay the taxes and fees. By the time the condo was sold for $40,000, Tyler’s total debt came to $15,000. But the county did not return the excess $25,000 to Tyler. Instead, it pocketed the excess equity in her home.

Bridge Aina Le’a, LLC v. Hawaii Land Use Commission

No. 20-54

Developer Bridge Aina Le‘a, LLC, purchased a large tract of land in Hawaii  to build hundreds of new homes. Before the company ever got the chance, however, the Hawaii Land Use Commission re‐designated the land for agricultural use, effectively preventing any  residential development from occurring.

Christus Lutheran Church of Appleton v. Wisconsin Department of Transportation

No. 2018-AP-1114

In this case currently before the Wisconsin Supreme Court, OCA addresses important issues arising out of a pre-litigation “jurisdictional” offer made to Christus Church by the Wisconsin Department of Transportation that contained compensation for severance damages to the Church’s

Johnson v. City of Suffolk

Record No. 191563

In this case currently before the Virginia Supreme Court, Virginia oystermen claim that a Sanitation District and the City knowingly operated a sewage and stormwater system in such a way as to discharge wastewater into the Nansemond River, invading oyster beds being leased by the oystermen from the state for the express purpose of oyster cultivation

Lech v. City of Greenwood Village

No. 19-1123

After being chased by police for stealing clothing from a Walmart, a man barricaded himself in a house in Greenwood Village, Colorado. Over a 19 hour period, using explosives and a battering ram attached to an armored personnel carrier, the local police department’s SWAT team intentionally destroyed the landowner’s house to force the fugitive to surrender.

Knick v. Township of Scott

588 U.S.

In Knick, the U. S. Supreme Court agreed that property owners are entitled to enforce their right to just compensation in federal court in situations where governmental entities take their property in violation of the Fifth Amendment to the U.S. Constitution.