Progress Report: In FDD Federal Class Action, US Supreme Court Justice Sonia Sotomayor extends time for Plaintiffs to seek High Court Review of Sixth Circuit Ruling

This is important information for owners of homes in the City of Ann Arbor where a “footing drain disconnection” (FDD) was performed under the City of Ann Arbor FDD Program.

On October 20, 2017, four Ann Arbor homeowners filed a class action complaint in federal court claiming that the permanent FDD construction and installations in their home under the FDD Program (i) destroyed original construction, (ii) occupies space and (iii) is otherwise a burdensome violation of their rights under the Fifth Amendment’s edict that “private property [shall not] be taken for public use, without just compensation.” The case was brought on behalf of all FDD homeowners in the City limits.

On January 10, 2019, the Sixth Circuit US Court of Appeals in Cincinnati regrettably dismissed these meritorious claims that FDDs were and continue to be unlawful installations of functional parts of the City sewer system in their homes for them to operate, maintain and replace at their expense.

Both the City and the local press reported this result in the Sixth Circuit as if it ended the FDDP Federal Class Action. Nothing could be further from the truth.

United States Supreme Court

Case in point, on May 16, 2019, the FDD Class Action Plaintiffs began the process for appealing to the United States Supreme Court. They made a motion requesting additional time for filing their Petition for the Court’s review. The Supreme Court assigned Application No. 18A1198 to the case, Lumbard et al v City of Ann Arbor.

As the letter from the Supreme Court (linked here) states, on May 21, 2019, Justice Sonia Sotomayor granted the Plaintiffs’ Motion and set July 29, 2019, as the deadline for filing their petition for review. Justice Sotomayor has supervisory jurisdiction relating to the Sixth Circuit.

Vulnerability of City’s case on appeal to the Supreme Court

The City’s case in the Sixth Circuit and the resulting decision by the court rested entirely on a Supreme Court precedent–the highly controversial 2005 decision in San Remo Hotel vs City of San Fransisco. San Remo was the Sixth Circuit’s authority that the FDD Class Plaintiffs were barred–“precluded”–from an independent federal forum for adjudication of federal claims under the federal Fifth Amendment.

San Remo, however, may soon be gone. In 2017, the United States Supreme Court accepted a case, Knick v Township of Scott, that provides the Court the opportunity to overturn San Remo, which would bring the Sixth Circuit decision into immediate question. This follows years of attacks on San Remo by the federal judiciary and legal scholars as unjust, harsh and wrongly decided.

We expect to be learning whether San Remo lives or dies within the next 30 days: the Supreme Court will hand down its decision by then.

At the two Oral Arguments in Knick, a supermajority of Justices expressed strong hostility toward San Remo and its consequences

The threat to San Remo is evident from the statements of the Justices. There were two sessions of Oral Argument at the Supreme Court in Knick, on October 7, 2018 and January 16, 2019. This is highly unusual. The Town of Scott argued the side of municipalities like Ann Arbor, that San Remo should remain good law. The statements of the Justices were more sharply critical of San Remo at the second Oral Argument than the first.

By the end of the two Oral Arguments in Knick, a clear supermajority of the Justices (including Justices Kagan, Sotomayor, Breyer, Chief Justice Roberts, and Justices Gorsuch and Alito) had made their opposition to San Remo completely clear to eliminate the same kind of preclusion from federal court of federal “takings” claims that just occurred in the FDD Federal Class Action. At the Second Oral argument Chief Justice Roberts and Justice Alito mocked the fondness of municipal lawyers for San Remo as a tool to inflict additional cost and time on federal plaintiffs with federal property claims under the Fifth Amendment.

Former Justice Anthony Kennedy wrote an influential opinion in another case calling for the Court to overturn San Remo at the next opportunity.

A further reason the Supreme Court Justices were in such agreement was that the US Solicitor General entered the case to argue persuasively in court that San Remo has to go as unjust and wrongly decided. Arguments of the Solicitor General are given great weight.

The timing of the Motion for additional time to file the Plaintiffs’ petition for review was strategic and allows us time to file a petition for review after the Court’s action in Knick when its impacts will be known and can be evaluated.

We will keep the community posted and communicate about other important subjects in the meantime.

The dates to watch, then, are:

  • By July 3, 2019: Decision of Supreme Court in Knick v Township of Scott.
  • July 29, 2019: Deadline for filing FDD Plaintiffs’ Petition for Writ of Certiorari
  • By August 27, 2019: City would have the option to file an opposition to the Petition or waive the filing, very possibly with San Remo having been overturned.

Irvin Mermelstein