2023-09-22 Upstream Appeal DKT 32 - Micu Response and Opening Cross-Appeal Brief

Case: 23-1363 Document: 32 Page: 1 Filed: 09/22/2023
Nos. 2023-1363, 2023-1365, 2023-1366, 2023-1412

_________________________
UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
EDGAR ABLAN, ET AL.,

Plaintiffs
CHRISTINA BANKER, TODD BANKER

Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
2023-1363
Appeal from the United States Court of Federal Claims in Nos. 1:17-cv-01409-CFL,
1:17-cv-09001-CFL, Senior Judge Charles F. Lettow
RESPONSE AND OPENING BRIEF OF PLAINTIFFS-CROSS-APPELLANTS
Daniel H. Charest Ian Heath Gershengorn

Emery Lawrence Vincent, Jr. Counsel of Record
BURNS CHAREST LLP Elizabeth B. Deutsch
900 Jackson Street, Suite 500 Victoria Hall-Palerm
Dallas, TX 75202 Leslie K. Bruce
(469) 904-4550 JENNER & BLOCK LLP
[email protected] 1099 New York Ave. NW, Suite 900
[email protected] Washington, DC 20001
(202) 639-6869
[email protected]
Counsel for Plaintiffs-Cross-Appellants

Christina Micu, Scott Holland, Catherine Popovici, Kulwant Sidhu
(case caption continued below; additional counsel listed in signature block)

SANDRA ABDOU, ET AL.,

Plaintiffs
ELIZABETH BURNHAM
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
2023-1365
Appeal from the United States Court of Federal Claims in Nos. 1:17-cv-01786-CFL,
1:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
CHRISTINA MICU, AND ALL OTHERS SIMILARLY SITUATED,

SCOTT HOLLAND, CATHERINE POPOVICI, KULWANT SIDHU,
Plaintiffs-Cross-Appellants
ELISIO SOARES, SANDRA GARZA RODRIGUEZ,

ERICH SCHROEDER, MARINA AGEYEVA,
GLENN PETERS, VIRGINIA HOLCOMB,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellant
2023-1366, 2023-1412
Appeals from the United States Court of Federal Claims in Nos. 1:17-cv-01277-CFL,
1:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
CERTIFICATE OF INTEREST
Pursuant to Circuit Rules 26.1 and 47.4, counsel for Plaintiffs-Cross-
Appellants certifies the following:
1. The full name of every party or amicus represented by me is: Christina
Micu, Scott Holland, Catherine Popovici, and Kulwant Sidhu.
2. The names of the real parties in interest appear in the caption.
3. No parent corporations or publicly held companies own 10 percent or
more of the stock of the parties represented by me.
4. The names of all law firms and the partners or associates that appeared
for the party or amicus now represented by me in the trial court or agency, or who
are expected to appear in this Court, are: Jenner & Block LLP, Ian Heath
Gershengorn, Elizabeth B. Deutsch, Victoria Hall-Palerm, Leslie K. Bruce; Burns
Charest LLP, Daniel H. Charest, Emery Lawrence Vincent, Amanda Klevorn; Irvine
& Conner PLLC, Charles Irvine, Mary Conner; Dunbar Law Firm PLLC, Lawrence
Dunbar.
5. The cases known to counsel to be pending in this or any other court or
agency that will directly affect or be directly affected by this Court’s decision in the
pending appeal are: In re Upstream Addicks & Barker Reservoirs, Nos. 1:17-cv-
01277-CFL (Fed. Cl.), 1:17-cv-09001-CFL (Fed. Cl.), 1:17-cv-3000 (Fed. Cl.); and
In re Downstream Addicks & Barker Reservoirs, No. 1:17-cv-9002 (Fed. Cl.).
i
/s/ Ian Heath Gershengorn

Ian Heath Gershengorn
JENNER & BLOCK LLP
1099 New York Ave. NW, Suite 900
Washington, DC 20001
(202) 639-6869
[email protected]
September 22, 2023
ii
TABLE OF CONTENTS
CERTIFICATE OF INTEREST ................................................................................ i
TABLE OF AUTHORITIES ................................................................................... vi

STATEMENT OF RELATED CASES ................................................................... xi
JURISDICTIONAL STATEMENT ..........................................................................1
STATEMENT OF THE ISSUES...............................................................................2
INTRODUCTION .....................................................................................................3
STATEMENT OF THE CASE ..................................................................................9
I. Factual Background .........................................................................................9
II. Procedural Background ...................................................................................9
A. The CFC Found The Government Liable For Taking

Plaintiffs’ Properties. ...........................................................................10
1. The government built the Addicks and Barker dams

to save downtown Houston from flooding. ..............................10
2. The government recognized its dams would flood

private property upstream but repeatedly declined to
buy that land. .............................................................................12
3. When Harvey hit, the dams worked as planned and

caused upstream flooding on Plaintiffs’ properties. .................15
4. On this extensive record, the CFC found a clear

taking. ........................................................................................15
B. The CFC Denied Class Certification...................................................16
C. The CFC Awarded Plaintiffs Partially Incomplete

Compensation. .....................................................................................17
SUMMARY OF ARGUMENT ...............................................................................19
STANDARD OF REVIEW .....................................................................................22
iii
ARGUMENT ...........................................................................................................22
I. Flooding Upstream From A Dam Is A Textbook Taking. ............................22

A. Flooding Behind A Dam Is A Per Se Taking. ....................................22
B. Plaintiffs Likewise Meet The Inapplicable Multi-Factor
Tests.....................................................................................................27
1. Nature and magnitude of the government’s action. ..................28
2. Intent or foreseeability. .............................................................30

3. Property interests and investment-backed
expectations. ..............................................................................34
C. The Government’s Counterarguments Fail. ........................................35
1. Subjective weather predictions are irrelevant, but

the CFC found the government foresaw Harvey’s
rainfall. ......................................................................................36
2. There is no “police power” exception to the Takings

Clause, nor does this case fit the facts of a necessity
defense.......................................................................................41
3. There is no “coming-to-the-nuisance” defense to

takings. ......................................................................................43
4. The Flood Control Act does not abrogate the Fifth
Amendment. ..............................................................................45
5. “It costs too much” is not a defense. .........................................45
II. The Government’s Attacks On Just Compensation Lack Merit. ..................47
A. Plaintiffs Are Entitled To Compensation For Structural

Damage And Loss Of Personal Property. ...........................................47
B. The CFC Correctly Awarded Mr. Holland Compensation
For The Taking Of His Leasehold Advantage. ...................................50
C. The CFC Correctly Awarded Compensation For Lost

Rental Value. .......................................................................................52
iv
D. The CFC Correctly Awarded Compensation For

Displacement From Property Rendered Uninhabitable By
The Taking. .........................................................................................54
CROSS-APPEAL.....................................................................................................57
I. The CFC Erred By Finding A Permanent Flowage Easement On

Ms. Popovici’s Property, But Awarding $0 Of Compensation For
It. ....................................................................................................................57
II. The CFC Erred By Offsetting Generally Available FEMA

Relief..............................................................................................................58
A. FEMA Aid Does Not Meet This Circuit’s Test For Special
Benefits. ...............................................................................................59
B. The Government Failed To Carry Its Burden To Prove An
Offset. ..................................................................................................61
III. The CFC Erred By Denying Class Certification Based Solely On

The Motion’s Timing.....................................................................................63
A. The CFC Clearly Erred In Construing The Timing Of

Plaintiffs’ Class Certification Motion. ................................................63
B. There Is No Bar To The Timing Of Plaintiffs’ Class

Certification Motion. ...........................................................................66
CONCLUSION ........................................................................................................68
v
TABLE OF AUTHORITIES
CASES
2,953.15 Acres of Land v. United States, 350 F.2d 356 (5th Cir. 1965) ........... 40-41
A.W. Duckett & Co. v. United States, 266 U.S. 149 (1924) ....................................51
Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295 (1976) ........................50, 51, 52
Alford v. United States, 961 F.3d 1380 (Fed. Cir. 2020) .........................................26
Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S.
470 (1973) ...........................................................................................................51
Arkansas Game & Fish Commission v. United States, 568 U.S. 23
(2012) ..........................................................................................19, 26, 28, 30, 46
Arkansas Game & Fish Commission v. United States, 736 F.3d 1364
(Fed. Cir. 2013) ...................................................................................................48
Armstrong v. United States, 364 U.S. 40 (1960) .....................................................30
ATEN International Co. v. Uniclass Technology Co., Ltd., 932 F.3d
1371 (Fed. Cir. 2019) ..........................................................................................63
Bachmann v. United States, 134 Fed. Cl. 694 (2017)..............................................41
Bauman v. Ross, 167 U.S. 548 (1897) ...............................................................59, 60
Bowditch v. City of Boston, 101 U.S. 16 (1879) ......................................................43

Brewer v. Account Discovery Systems LLC, No. 18-cv-262, 2018 WL
11476149 (D. Utah Oct. 24, 2018) .....................................................................66
Causby v. United States, 75 F. Supp. 262 (Ct. Cl. 1948) ......................47, 49, 51, 53
CCA Associates v. United States, 667 F.3d 1239 (Fed. Cir. 2011) .........................61
Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) ...................3, 22, 23, 27, 57
City of Van Buren v. United States, 697 F.2d 1058 (Fed. Cir. 1983) ......................59
Cooper v. United States, 827 F.2d 762 (Fed. Cir. 1987) .........................................44
vi
Cotton Land Co. v. United States, 75 F. Supp. 232 (Ct. Cl. 1948)........24, 36, 37, 38
Harris County Flood Control District v. Kerr, 499 S.W.3d 793 (Tex.
2016) ...................................................................................................................34
Hendler v. United States, 175 F.3d 1374 (Fed. Cir. 1999) ..................................8, 59
Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) ......................................40
Horne v. Department of Agriculture, 576 U.S. 350 (2015) ...............................44, 47

Ideker Farms, Inc. v. United States, 71 F.4th 964 (Fed. Cir.
2023) ..................................................................................... 7, 19, 27, 28, 47, 48,
49-50, 52, 53, 54, 56
Jackson v. United States, 230 U.S. 1 (1913)............................................................49
Jacobs v. United States, 45 F.2d 34 (5th Cir. 1930) ................................................27

Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) ......................................56
LaBruzzo v. United States, 144 Fed. Cl. 456 (2019) ......................................... 33-34
Little v. Washington Metropolitan Area Transit Authority, 100 F. Supp.
3d 1 (D.D.C. 2015) .............................................................................................66
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)................. 34
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ..........................41
Miller v. Schoene, 276 U.S. 272 (1928)...................................................................43

Milton v. United States, 36 F.4th 1154 (Fed. Cir. 2022) ...........................6, 9, 41, 45
National Board of YMCA v. United States, 395 U.S. 85 (1969) .............................43
Northwest Louisiana Fish & Game Preserve Commission v. United

States, 446 F.3d 1285 (Fed. Cir. 2006) ...............................................................24
Otay Mesa Property, L.P. v. United States, 670 F.3d 1358 (Fed. Cir.
2012) .............................................................................................................54, 56
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) .....................................6, 20, 44, 45
vii
Palmyra Pacific Seafoods, LLC v. United States, 561 F.3d 1361 (Fed.
Cir. 2009) ............................................................................................................52
Paxton v. Union National Bank, 688 F.2d 552 (8th Cir. 1982) .........................67, 68
Personalized Media Communications, LLC v. Apple Inc., 57 F.4th 1346
(Fed. Cir. 2023) ...................................................................................................63
Pete v. United States, 531 F.2d 1018 (Ct. Cl. 1976)..........................................48, 49
Postow v. OBA Federal Savings & Loan Ass’n, 627 F.2d 1370 (D.C.
Cir. 1980) ............................................................................................................67
Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.)
166 (1872) .................................................................................................5, 19, 23
Quebedeaux v. United States, 112 Fed. Cl. 317 (2013) ...........................................28

Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir.
2003) .................................................................................... 19, 26, 28, 29, 30, 31
Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101 (Fed. Cir.
1986) ...................................................................................................................66
Sanguinetti v. United States, 264 U.S. 146 (1924) ............................................26, 31

Schweizer v. Trans Union Corp., 136 F.3d 233 (2d Cir. 1998) ...............................67
South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) ................................24
St. Bernard Parish Government v. United States, 887 F.3d 1354 (Fed.
Cir. 2018) ............................................................................................................22
Stockton v. United States, 214 Ct. Cl. 506 (1977) ........ 19, 24, 25, 27, 28, 31, 36, 44
Sun Oil Co. v. United States, 572 F.2d 786 (Ct. Cl. 1978) ......................................51
United States v. Causby, 328 U.S. 256 (1946) ........................................................52
United States v. Cress, 243 U.S. 316 (1917) ...............................5, 19, 23, 24, 40, 49
United States v. Dickinson, 331 U.S. 745 (1947) ..............................5, 24, 44, 46, 50
United States v. General Motors Corp., 323 U.S. 373 (1945) ..........................54, 55
viii
United States v. Lynah, 188 U.S. 445 (1903), overruled by United States
v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 312 U.S.
592 (1941) ...........................................................................................................23
United States v. River Rouge Improvement Co., 269 U.S. 411 (1926).............. 59-60
United States v. Welch, 217 U.S. 333 (1910) ..........................................................23

United States v. Winstar Corp., 518 U.S. 839 (1996) .............................................64
Yuba Natural Resources., Inc. v. United States, 904 F.2d 1577 (Fed.
Cir. 1990) ......................................................................................................52, 53
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. V.................................................................................................3
28 U.S.C. § 1295(a)(3) ...............................................................................................1

28 U.S.C. § 1491(a)(1) ...............................................................................................1
OTHER AUTHORITIES
Brief for United States, Arkansas Game & Fish Commission v. United
States, 568 U.S. 23 (2012) (No. 11-597), 2012 WL
3680423...............................................................................................................36
Brief for United States, St. Bernard Parish Government v. United
States, No. 16-2301 (Fed. Cir. Dec. 9, 2016), ECF 25 ...................................5, 35
Fed. R. App. P. 4(a)(3) ...............................................................................................1
Michael Grunwald, Lawsuit Surge May Cost U.S. Billions, Wash. Post
(Aug. 10, 1998), https://www.washingtonpost.com/archive/
politics/1998/08/10/lawsuit-surge-may-cost-us-billions/f4ad3fb6-6
8da-494c-9a2f-021e84924a22 ............................................................................64
3 Nichols on Eminent Domain § 8A.02[4][a], Lexis (3d ed. database

updated 2023)......................................................................................................59
Press Release, FEMA, Historic Disaster Response to Hurricane

Harvey in Texas (Sept. 22, 2017), https://www.fema.gov/press-re
lease/20230425/historic-disaster-response-hurricane-harvey-texas ................... 18
ix
3 William B. Rubenstein, Newberg and Rubenstein on Class Actions

§ 7:11, Westlaw (6th ed. database updated June 2023) ......................................68
7AA C. Wright & A. Miller, Federal Practice & Procedure § 1785.3

(3d ed. 2005) ...................................................................................................8, 67
x
STATEMENT OF RELATED CASES

Pursuant to Rule 47.5, Plaintiffs-Cross-Appellants’ counsel states:
No other cases pending before this Court are appeals from individual
judgments based on the same underlying opinions at issue in the present consolidated
appeals.
The proceedings pending before the U.S. Court of Federal Claims for the
following cases could be directly affected by this Court’s decision in these
consolidated appeals:
• In re Upstream Addicks & Barker Reservoirs, Nos. 1:17-cv-01277-CFL
(Fed. Cl.), 1:17-cv-09001-CFL (Fed. Cl.), 1:17-cv-3000 (Fed. Cl.), which
is the master docket associated with claims by non-bellwether plaintiffs in
the same set of cases as the present appeal;
• In re Downstream Addicks & Barker Reservoirs, No. 1:17-cv-9002 (Fed.
Cl.), which includes consolidated claims for the taking of private
properties located downstream from the Addicks and Barker dams.
xi
JURISDICTIONAL STATEMENT
The Court of Federal Claims (“CFC”) had jurisdiction over Plaintiffs’ claims
alleging Fifth Amendment takings of their property under 28 U.S.C. § 1491(a)(1).
The CFC held the government liable as to thirteen bellwethers and awarded
compensation to owners of six test properties. On October 28, 2022, the CFC entered
partial judgments for those Plaintiffs under CFC Rule 54(b). Appx91. On December
27, 2022, the government filed notices of appeal. On January 10, 2023, Plaintiffs-
Cross-Appellants filed a notice of cross-appeal, which was timely under Fed. R.
App. P. 4(a)(3). Appx2195. This Court has jurisdiction under 28 U.S.C.
§ 1295(a)(3).
1
STATEMENT OF THE ISSUES

1. Whether the CFC correctly found the government liable for taking
Plaintiffs’ property during Tropical Storm Harvey, when that property is located
upstream and within the reservoirs of dams constructed, maintained, and operated
by the federal government and the property would not have flooded but for the dams.
2. Whether the CFC correctly awarded Plaintiffs just compensation for the
property interests directly invaded by the government-induced flooding, including
costs of repairing damaged structures; loss of personal property; loss of a leasehold
advantage; lost rental value; and displacement costs.
3. Whether the CFC erred in granting the government a permanent
flowage easement on Ms. Popovici’s property, yet awarding $0 of compensation for
that easement.
4. Whether the CFC erred in offsetting from Plaintiffs’ just compensation
awards emergency relief aid provided by the Federal Emergency Management
Agency (“FEMA”), when that aid was available to more than 270,000 victims of
Harvey, irrespective of their properties’ connection to the taking.
5. Whether the CFC erred in denying class certification based solely on
the timing of the certification motion, where Plaintiffs relied on the CFC’s
statements directing them to defer the motion and the government has not shown
prejudice from that timing.
2
INTRODUCTION
When the government takes private property for a public use, it must pay “just
compensation” to the owner. U.S. Const. amend. V. This case asks the Court to
enforce that constitutional requirement in a context nearly as familiar as the
requirement itself: flooding upstream of the government’s dam. For such cases, there
exists a “simple, per se rule.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071
(2021). When the government builds a dam, it must pay for the land it floods behind
that dam. That simple rule resolves this case.
A series of storms around the turn of the twentieth century in and near Houston
made clear that the city and its ship channel were vulnerable to flooding that could
cause economic devastation. So the government acted. It built two dams—Addicks
and Barker—that would, when significant rain fell, impound water upstream to save
downtown. But the government chose not to purchase all the land within the dams’
reservoirs.
Since the construction of the dams in the 1940s, the government has improved
their embankments and enlarged their capacity. And it repeatedly weighed whether
to buy additional private property within the reservoirs. Each time, however, the
government demurred, deciding it was economically wiser to wait for a storm and
take the property by flood.
3
In 2017, that storm came. Hurricane Harvey struck Texas’s Gulf Coast. It
weakened to a tropical storm and stalled, releasing roughly 31 inches of rain in 5
days over the Addicks and Barker watersheds. The dams worked as planned. They
protected “downstream” property—sparing downtown Houston $7 billion in
damage—by impounding billions of gallons of water “upstream,” inundating
thousands of homes and businesses that lie within the dams’ reservoirs.
As the CFC recognized, the Constitution permits the government to take
private property in this manner. But the Constitution requires the government to pay
for what it takes.
Faced with this constitutional deprivation, Plaintiffs-Cross-Appellants
Christina Micu, Scott Holland, Catherine Popovici, and Kulwant Sidhu (“Plaintiffs”)
filed suit. They are upstream landowners whose properties “are, by government
design, within the dams’ flood-pool reservoirs.” Appx34. The CFC found (and the
government all but conceded) that Plaintiffs’ properties would not have flooded but
for the dams. Because of that flooding, the CFC further found, Plaintiffs suffered
significant property damage and displacement from their homes. And they (and any
prospective buyers of their properties) now know that the next time a storm hits, it
will happen all over again.
Case after case, stretching back over a century, confirms the blackletter rule
that decides this appeal. As the government has summed it up: “[W]hen the water
4
impounded in [a] reservoir created by a government-constructed dam submerges
private property,” that is a “classic taking” and “a form of recurring flooding long
understood to be compensable.” Br. for United States at 24, 44-45, St. Bernard
Parish Gov’t v. United States, No. 16-2301 (Fed. Cir. Dec. 9, 2016), ECF 25
(“Katrina Br.”); see, e.g., Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13
Wall.) 166, 181 (1872); United States v. Cress, 243 U.S. 316, 328 (1917); United
States v. Dickinson, 331 U.S. 745, 749 (1947). This case is that simple.
The government’s contrary arguments do not hold water. The government
first casts Harvey as a freak storm that severed the causal chain between the dams
and the damage upstream. But what matters for the takings analysis is that the
government built the dams to contain that much water and more. The dams worked
as intended. Regardless, the government ignores the CFC’s findings that the Army
Corps of Engineers (“Corps”) “was aware or should have been aware since the initial
construction of the dams[,] and at every point onward, that the flood pools in the
Addicks and Barker Reservoirs would at some point (and thereafter) exceed the
government-owned land, inundating private properties,” Appx36-37, and that “the
Corps itself had fully anticipated a storm the likes of Harvey,” Appx31.
Next, the government says Plaintiffs should have expected the flood because
they bought property upstream from the dams. But a takings claim does not ripen
until flooding occurs. The government’s approach would thus allow free takings of
5
any land bought or sold in the 70+-year period between when it built the dams and
when Harvey hit—neither seller nor buyer could ever bring a takings claim. Little
wonder the Supreme Court has rejected the government’s proposed “rule that
purchasers with notice have no compensation right when a claim becomes ripe.”
Palazzolo v. Rhode Island, 533 U.S. 606, 628 (2001). “The Takings Clause is not so
quixotic.” Id.
Ultimately, the government argues, once Harvey hit, the government operated
the dams pursuant to its emergency police powers, so it should not pay for losses
arising from a “no-win” situation. For starters, this Court has already rejected a
police power exception to liability for physical takings from floods. See Milton v.
United States, 36 F.4th 1154, 1162 (Fed. Cir. 2022).
Nor can the government invoke emergency or necessity as a defense. This
case does not involve a random exigency like a great uncontrolled fire. The dams
did not appear unbidden on the landscape when Harvey hit. The government built,
maintained, and operated the dams to put water on upstream land, planning for this
eventuality. No case frees the government from paying where, as the CFC found, the
“government [was] responsible for creating the emergency.” Appx45.
The government’s arguments about how it could have or should have
managed the dams during Harvey, its mantra that “the water had to go somewhere,”
Opening Br. for United States at 37, 50 (“Br.”), its suggestion that the downstream
6
landowners received significant benefits from the dams, and its position that no one
is entitled to perfect flood control may raise difficult questions in the separate
downstream litigation. But this upstream case is simple. This Court should apply
settled precedent confirming that when the government builds a dam and floods
private property upstream, it must pay.
As to the amount the government must pay, Plaintiffs again ask for a
straightforward application of established law. As this Court recently confirmed in
Ideker Farms, Inc. v. United States, 71 F.4th 964, 987-88 (Fed. Cir. 2023), the CFC
was right to award Plaintiffs not only compensation for the taking of a permanent
flowage easement, but also compensation for the government’s invasion of other
compensable property interests—structural repairs and personal property damage,
loss of a leasehold advantage, lost rental value from condo units, and displacement
costs. The CFC’s approach to just compensation was, by and large, correct.
But the CFC’s just compensation analysis failed in two specific respects. First,
the court found the government liable for taking a permanent flowage easement on
Ms. Popovici’s property, yet awarded her $0 for that easement. That cannot be. Even
the government’s expert valued the easement on her property at $5,000, and
Plaintiffs’ experts put it in the six figures. If the government gets an easement, Ms.
Popovici is entitled to compensation for it. Second, the CFC offset from the
Plaintiffs’ individualized just compensation awards the generalized aid FEMA
7
provided to over 270,000 flood victims, even though that emergency relief was
disbursed without regard to whether a claimant’s land was partially taken and bears
no relationship to the value of the remaining land. Under this Court’s caselaw,
FEMA aid does not qualify as a “special benefit,” the only benefit that may be offset
from a takings award. See Hendler v. United States, 175 F.3d 1374, 1380 (Fed. Cir.
1999). The CFC’s concerns about “duplicate recovery” cannot overcome settled law.
And even were “duplicate recovery” the test, the CFC’s offsets would have to be
reversed. For tactical reasons, the government declined to introduce evidence that
FEMA paid Plaintiffs for any specific damages sought in this case. There is no
evidence—and no finding—of actual, specific duplication.
Finally, the CFC was wrong to deny class certification based solely on the
timing of Plaintiffs’ motion to certify. Both then-Chief Judge Braden and Judge
Lettow directed Plaintiffs to defer class certification until after jurisdiction had been
confirmed. That is what Plaintiffs did. The government has never identified how it
would have tried the merits “differently had they been aware that a class judgment
was at stake.” 7AA C. Wright & A. Miller, Federal Practice & Procedure § 1785.3
(3d ed. 2005) (“Wright & Miller”). On this record, the denial of class certification
cannot stand.
8
STATEMENT OF THE CASE

I. Factual Background
Hurricane Harvey made landfall along the Texas coast around 10 pm on
August 25, 2017. Appx18. It weakened to a tropical storm and then stalled over
southeast Texas, including the Houston area. Appx18. Plaintiffs reside upstream of
the Addicks and Barker dams, which the Corps built, maintained, and operated to
prevent costly flooding downtown. Appx2, Appx5. Over the dams’ watersheds,
Harvey released roughly 31 inches of rain in 5 days. U.S. Post-Trial Br., ECF 242 at
59 (citing Appx9740, Appx9746, Appx9752). The water was impounded by the
dams, and flooded Plaintiffs’ properties, preventing entry or egress, and flooded
most Plaintiffs’ homes, rendering them uninhabitable for months. Appx19-22,
Appx31-32.
II. Procedural Background
After the flood, Plaintiffs Christina Micu, Scott Holland, Catherine Popovici,
and Kulwant Sidhu, among others,1 filed this lawsuit against the United States
alleging a taking of their property without just compensation. Appx1-2. Additional
upstream cases followed. Appx2. Many downstream homeowners also filed claims
based on the Corps’ release of some dam water downstream. See Milton, 36 F.4th at
1158. The CFC separated the downstream cases from the upstream ones, placing
1
Plaintiffs Elisio Soares, Sandra Garza Rodriguez, Erich Schroeder, Marina
Ageyeva, Glenn Peters, and Virginia Holcomb are not parties to this appeal.
9
them on different sub-master dockets. Appx2. The downstream cases are not at issue
here.
As to the upstream cases, then-Chief Judge Braden bifurcated liability and
damages. Appx2. Thirteen properties, including Plaintiffs’, were designated as
bellwethers. Appx3, Appx20-21. The government moved to dismiss for lack of
jurisdiction and failure to state a claim. Appx3. The CFC declined to dismiss the
litigation and deferred a ruling on jurisdiction until the liability trial. Appx3.
A. The CFC Found The Government Liable For Taking Plaintiffs’

Properties.
On May 6, 2019, the CFC commenced a 10-day bench trial on liability as to
the thirteen bellwether properties. On December 17, 2019, it issued a 46-page ruling
holding that the CFC had jurisdiction and finding the government liable for taking
permanent flowage easements on each of the thirteen properties. The CFC made
findings of fact that prove a taking.
1. The government built the Addicks and Barker dams to save

downtown Houston from flooding.
Houston sits at the confluence of two bayous. Appx3-4. During significant
rainfall, the stream channels overflow and the plain has difficulty draining. Appx3-
4. That natural topography resulted in six major floods between 1854 and 1935. Two
storms in 1929 and 1935 caused severe flooding in and near Houston, producing
substantial property damage and economic loss. Appx4. The government realized
10
that larger storms were likely to recur and could be much worse. Appx4-5, Appx36.
The Corps concluded that “only chance” had “prevented the occurrence of a storm
over the basin much larger than the 1935 storm.” Appx4-5 (quoting Appx9888).
Congress enacted the River and Harbor Act of 1938, directing the Corps to
build dams to “control … floods on the Buffalo Bayou watershed” for “the
protection of the city of Houston, Texas, and the Houston Ship Channel against the
estimated probable maximum storm.” Appx5 (quoting Appx9884). The “probable
maximum storm” referred to an 1899 storm over nearby Hearne, Texas. Appx6. In
contemporaneous records, the Corps stated a comparable storm was “likely to occur
with a frequency of once every 50 years.” Appx8 (quoting Appx9094).
In response, the Corps built the Addicks and Barker dams. The dams are not
imposing structures, but earthen embankments that rise at a gradual slope over
several miles. Appx6-7 (noting the dams rise “almost imperceptibly”). On a typical
day, the land is dry. Appx16. But when rain comes, the dams create flood pools
upstream of the embankments. In the dams’ planning phase, the Corps contemplated
buying all vulnerable land upstream within the new reservoirs, but it acquired only
some due to the financial “savings.” Appx7-9 (quoting Appx9907-08). The CFC
found that “the dams were designed to contain more water than the acquired land
could hold.” Appx7.
11
2. The government recognized its dams would flood private

property upstream but repeatedly declined to buy that land.
Within 20 years of completing the dams, several developments “raised
concerns with the Corps that flooding beyond the extent of government-owned land
was highly probable, if not inevitable, during a severe storm.” Appx10; see Appx36.
In a 1962 manual, for example, the Corps calculated that the maximum design pool
exceeded government-owned land by 6.6 vertical feet in Addicks and 8.1 vertical
feet in Barker. Appx10 (citing Appx9930). In a 1973 memorandum, the Corps’
Galveston Division Chief “lamented” that “the possibility of flooding lands in the
reservoirs beyond the government-owned land” was “soon expected to become a
public issue.” Appx10 (citing Appx8836). He urged the Corps to “develop a history
and rationale for [its] operating concept of imposing flooding on private lands
without benefit of flowage easement or other legal right.” Appx10 (quoting
Appx8836). In a 1974 report, the Corps echoed that this state of affairs “will
eventually place the Government in the position of having to flood the area within
the reservoir with the accompanying damages in order to protect downstream.”
Appx10-11 (quoting Appx8864).
In 1979, Tropical Storm Claudette hit near Houston, dropping 43 inches of
rain in 24 hours. Appx17. The Corps acknowledged that, “‘[i]f this event had
occurred over the Addicks and Barker watersheds, their reservoir capacities may
have been exceeded’”—so much so “it would [have] take[n] between … 53 and 55
12
days to remove enough water to get it back on government-owned land.” Appx17
(quoting Appx8786).
The Corps fortified the dams to protect downstream Houston from another
major storm like Claudette, which was much more severe than the original design
storm. Appx11-12 (crediting Appx10725, Appx10728). Record evidence shows that
the new “theoretical design storm for Addicks and Barker” was “about 43 inches of
rainfall in 72 hours.” Appx11001; see Appx12 (crediting Appx10997). The
corresponding design flood (the “spillway design flood”) would produce reservoir
pools reaching 115 feet elevation in Addicks and 108 feet elevation in Barker.
Appx16 (crediting Appx10629, Appx10631). The Corps again “consider[ed] the
purchase of real estate upstream of the reservoirs,” but again declined despite its
“definite understanding that larger pool sizes were highly probable.” Appx11-12,
Appx36, Appx49.
The Corps knew that “flooding beyond government-owned land” was, as the
CFC put it, “virtually inevitable.” Appx36. In 1992, a series of storms produced
“then-record flood pools in both reservoirs.” Appx12. So “the Corps prepared a
special report” analyzing “anticipated flooding damages which could occur beyond
government-owned property in Addicks and Barker.” Appx12. The Corps concluded
that “[t]he Possible Maximum Flood would affect over 4,000 structures valued at
approximately $725 million and cause damages of $245 million.” Appx12 (quoting
13
Appx10160). It again considered “purchasing flowage easements” and “land
buyouts,” but found “insufficient economic benefits to justify” doing so. Appx12-
13.
Throughout the 1990s and 2000s, the Corps completed surveys of structures
located within each dam’s reservoir—over 95% of which were residential—“for the
purpose of determining potential flood-damage estimates.” Appx13. “The Corps
also prepared internal ‘Reservoir Structure’ maps that depicted the elevations of
these surveyed upstream structures,” meaning they reflected anticipated upstream
flooding of private properties. Appx13. “As a result” of these meticulous exercises,
the CFC found that “the government gained an appreciation of the specific risks
upstream in Addicks and Barker associated with a severe storm.” Appx13.
Then came another series of near misses. In 2001, Tropical Storm Allison
dropped 36 inches of rain near Houston over 5 days. Appx17. The Corps recognized
that Allison “could have potentially exceeded reservoir capacity had the storm event
occurred directly over the reservoirs.” Appx17 (quoting Appx8787). In 2016, the
“Tax Day Storm” produced new then-record flood pools and exceeded government-
owned land (though just barely) for the first time. Appx17. As the CFC found, and
the Corps acknowledged, “it was not a question of whether the pools would reach
the level they did—it was merely a question of when and how often.” Appx36; see
Appx15 (quoting Appx9501), Appx17 (quoting Appx11299).
14
3. When Harvey hit, the dams worked as planned and caused

upstream flooding on Plaintiffs’ properties.
On August 25, 2017, the storm the government had anticipated finally arrived.
Even before Harvey made landfall, “the Corps knew that flooding ‘beyond the
government-owned land limits’ in Addicks and Barker was imminent.” Appx18
(quoting Appx10647). As the storm weakened and stalled, it dropped an average of
43 inches over the greater Houston region, 34 inches over Harris County, and about
31 inches over the Addicks and Barker watersheds. Appx18; ECF 242 at 59.
The dams worked as intended. They “protect[ed] downstream property by
impounding water in upstream reservoirs.” Appx40. This produced record flood
pools in both reservoirs, reaching 109.1 feet elevation in Addicks and 101.6 feet
elevation in Barker. Appx19. The flooding remained within the dams’ maximum
design pool elevations—115 feet in Addicks, 108 feet in Barker—but “far exceeded
the extent of government-owned land in both Addicks and Barker.” Appx19.
4. On this extensive record, the CFC found a clear taking.
The CFC found a taking on each of the thirteen properties. Appx46. As found
by the CFC, “plaintiffs’ properties are, by government design, within the dams’
flood-pool reservoirs.” Appx34. As the CFC also found, but for the dams, these
properties would not have flooded. Appx37-39. Because “the Corps was aware or
should have been aware since the initial construction of the dams[,] and at every
point onward, that the flood pools in the Addicks and Barker Reservoirs would at
15
some point (and thereafter) exceed the government-owned land, inundating private
properties,” the CFC concluded that “Harvey’s magnitude does not exculpate the
government of liability.” Appx36-37.
The CFC found the government had taken—and so must pay just
compensation for—“both ‘a permanent flowage easement’ and ‘plaintiffs’ personal
property, fixtures, and improvements damaged or destroyed by [flooding attributable
to Harvey].’” Appx69 (alteration in original). The government’s flowage easement
granted it “a permanent right to inundate the property with impounded flood waters”
up to “the elevation of the pools at their highest level on August 30, 2017, viz., 101.6
feet in Barker and 109.1 feet in Addicks.” Appx72 (quotation marks omitted); see
Appx1053. While the CFC could not “predict for certain how frequently the
government will use its easement,” it found that “the government understates the
frequency of a Harvey-level storm” and that “[s]imilarly large storms will likely
occur in the future.” Appx73; see Appx31 (finding “the likelihood of recurrent
flooding is high”).
B. The CFC Denied Class Certification.

After the liability trial, Plaintiffs moved to certify a class. This was consistent
with the schedule contemplated by then-Chief Judge Braden (who presided before
the case was assigned to Judge Lettow). After lifting a “premature” class-
certification deadline in November 2017, Appx2285, Chief Judge Braden explained
16
that Plaintiffs should wait to move for class certification and stated this case “may
require a liability determination, before class action certification is considered,”
Appx2307-08.
When Judge Lettow took over, Plaintiffs reiterated that they planned to move
for class certification. Judge Lettow, too, told them to wait. Appx2205-08. “[T]he
Court would strongly prefer that we focus on jurisdiction first, even though a lot of
that would carry over to liability. That might affect your thinking on class
certification.” Appx2206. Jurisdiction indeed carried over to liability. The CFC did
not confirm jurisdiction until its decision finding takings liability. Appx3,
Appx1016. Plaintiffs filed their class certification motion after the liability phase
concluded and before the damages trial. Appx200-02.
The sole basis the CFC gave for denying class certification was the timing of
Plaintiffs’ motion. Appx201, Appx203, Appx205.
C. The CFC Awarded Plaintiffs Partially Incomplete Compensation.
The just compensation trial took place from May 31 to June 10, 2022. It
involved six test properties. On October 28, 2022, the CFC issued a 44-page decision
awarding Plaintiffs compensation for the taking of their property.
The CFC awarded all Plaintiffs except Ms. Popovici compensation for the
taking of a permanent flowage easement, measured by the diminution in value of
Plaintiffs’ property resulting from the government’s right to flood up to the Harvey
17
level in the future. Appx70, Appx75-77. That sum was designed to compensate “for
any damage caused by future flooding up to the elevation of the government’s
easement.” Appx72.
The CFC also awarded compensation associated with structural repairs and
personal property loss. Appx75-77, Appx80-81. For Ms. Popovici, however, the
CFC awarded no compensation for the taking of a flowage easement, awarding only
$1,401.49 for her actual garage repair costs. Compare Appx75-77, with Appx81.
In addition, the CFC provided compensation for the loss of Mr. Holland’s
leasehold advantage, Appx76-77; the loss of rental value of Mr. Sidhu’s condo units,
Appx82-83; and certain displacement costs due to the loss of habitability of
Plaintiffs’ homes, Appx81-82.
The CFC then reduced several Plaintiffs’ awards by the amount of FEMA
emergency relief they—like 270,000 other Harvey victims—received, claiming such
reduction was needed to avoid “duplicate recovery.” Appx83-85; Press Release,
FEMA, Historic Disaster Response to Hurricane Harvey in Texas (Sept. 22, 2017),
https://www.fema.gov/press-release/20230425/historic-disaster-response-hurricane-
harvey-texas. However, for tactical reasons, the government produced no evidence
to show any actual, specific duplication.
18
SUMMARY OF ARGUMENT
I. For more than 150 years, the Supreme Court has held that flooding
upstream land behind a government-built dam constitutes a taking. See Pumpelly, 80
U.S. at 181. For over a century, it has said that “[t]here is no difference of kind …
between a permanent condition of continual overflow by backwater and a permanent
liability to intermittent but inevitably recurring overflows.” Cress, 243 U.S. at 328.
Binding precedent in this Court holds the same. E.g., Stockton v. United States, 214
Ct. Cl. 506, 518-19 (1977). A permanent easement to intermittently flood property
is a per se taking.
Even though it is unnecessary to apply the multi-factor tests articulated in
Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003), and Arkansas
Game & Fish Comm’n v. United States, 568 U.S. 23 (2012) (Arkansas Game),
Plaintiffs meet those tests as well, supplying an independent basis to affirm. See
Ideker Farms, 71 F.4th at 978 n.6 (affirming the CFC’s application of multi-factor
tests while holding that a per se rule applied).
The government’s counterarguments ignore both the CFC’s findings of fact
and binding precedent. First, Harvey’s scale and scope provide no escape from
takings liability. The government’s weather predictions are irrelevant where, as here,
the dams worked as intended to store water behind the dams within their reservoirs.
Regardless, the CFC found that the government should have foreseen—and actually
19
foresaw—flooding upstream beyond government-owned land caused by severe
rainfall. Second, the government’s invocation of its “emergency” power to address
unanticipated exigencies goes nowhere. As the CFC found, as to upstream owners
whose land would not otherwise have flooded, “the government [was] responsible
for creating the emergency.” Appx45. Third, binding precedent forecloses the
government’s proposal for a coming-to-the-nuisance defense. See Palazzolo, 533
U.S. at 629-30 (rejecting identical argument). It could hardly be otherwise, as the
government’s approach would allow it to take private land behind the dams for free.
Fourth, this Court has also rejected the government’s argument that the Flood
Control Act abrogates the government’s liability under the Fifth Amendment.
Finally, the government’s familiar sky-is-falling argument that it should not be held
liable because the bill is too big must fail. That has never been the law. And such
complaint is particularly inapt here, where the government chose to take its chances
in litigation rather than exercise eminent domain to secure the flood rights it knew it
would need.
II. In awarding just compensation for the taking, the CFC rightly included
costs to repair structures and personal property loss under a straightforward
application of this Court’s precedents and precedent from the Supreme Court. The
CFC also correctly awarded compensation for Mr. Holland’s leasehold advantage
20
and lost rental value from Mr. Sidhu’s condo units. The CFC was well within its
discretion to provide compensation for Plaintiffs’ displacement costs.
III. The CFC erred in finding the government liable for taking a flowage
easement on Ms. Popovici’s property but awarding $0 for that easement. Even the
government valued the easement at $5,000, and Plaintiffs’ experts valued it at many
times that. Either the government took no easement, or Ms. Popovici is entitled to
just compensation.
IV. The CFC erred in offsetting Plaintiffs’ compensation awards with
emergency aid provided by FEMA to over 270,000 victims of Harvey. This Court
has held the only permissible offsets are “special benefits,” i.e., those that arise from
the taking and improve the value of the remaining land. General emergency relief
available to all downstream and upstream flood victims does not meet that test. The
CFC acknowledged as much but proposed a new test: whether the governmental
benefit results in “duplicate recovery.” Even under that novel approach, no offset is
proper. For tactical reasons, rather than seek to prove any specific duplication, the
government categorized FEMA aid into broad buckets that thematically relate to
Plaintiffs’ compensation claims. The government made no attempt to show that any
specific damages sought here actually duplicated particular FEMA payments. The
FEMA offsets must be reversed.
21
V. The CFC also erred in denying class certification solely due to timing.
Plaintiffs relied on the court’s instructions to wait until jurisdiction had been
confirmed to file their certification motion, and the government identified no
prejudice from that timing.
STANDARD OF REVIEW
“Whether a taking under the Fifth Amendment has occurred is a question of
law with factual underpinnings.” St. Bernard Parish Gov’t v. United States, 887 F.3d
1354, 1359 (Fed. Cir. 2018). This Court reviews the CFC’s “legal determinations de
novo and its fact-findings for clear-error.” Id.
ARGUMENT
I. Flooding Upstream From A Dam Is A Textbook Taking.
The government built the Addicks and Barker dams to prevent the destruction
of downtown Houston, and those dams impounded water—which would have
otherwise surged down the Buffalo Bayou—on Plaintiffs’ properties upstream. That
is a taking under “a simple, per se rule,” Cedar Point, 141 S. Ct. at 2071, or the
multi-factor tests from Ridge Line and Arkansas Game. The government’s
counterarguments ignore the CFC’s findings and binding caselaw.
A. Flooding Behind A Dam Is A Per Se Taking.

Case after case dating back more than 150 years establishes the blackletter
rule that “the government … effects … the clearest sort of taking,” when it causes
“recurring flooding as a result of building a dam.” Cedar Point, 141 S. Ct. at 2071
22
(quotation marks omitted). This case is subject to that “simple, per se rule: The
government must pay for what it takes.” Id.
An unbroken line of precedent decides this case. Beginning in 1872, the
Supreme Court recognized that though the government has the power to build a dam
for the public good, that power does not excuse its constitutional duty to pay for the
land it takes. See Pumpelly, 80 U.S. at 177, 181. Pumpelly addressed that duty in the
context of a state constitution, but the Supreme Court soon clarified that, under the
federal Constitution, it is likewise “clear … that where the government by the
construction of a dam … floods lands belonging to an individual … there is a taking
within the scope of the [Fifth] Amendment.” United States v. Lynah, 188 U.S. 445,
470 (1903), overruled on other grounds by United States v. Chicago, Milwaukee, St.
Paul & Pac. R.R. Co., 312 U.S. 592 (1941). And the Court soon thereafter confirmed
that the compensation due must account for the reduced value of the remaining land
caused by partial flooding. United States v. Welch, 217 U.S. 333, 338-39 (1910).
In United States v. Cress, 243 U.S. 316 (1917), the Supreme Court recognized
“[t]here is no difference of kind … between a permanent condition of continual
overflow by backwater and a permanent liability to intermittent but inevitably
recurring overflows; and, on principle, the right to compensation must arise in the
one case as in the other.” Id. at 328. “[W]here … land is not constantly but only at
intervals overflowed, the fee may be permitted to remain in the owner, subject to an
23
easement in the United States to overflow it with water as often as necessarily may
result from the operation of the … dam.” Id. at 329. That is, by intermittent partial
flooding, the government has taken a flowage easement for which it must pay. Id.
Since then, this basic fact pattern—government builds a dam, dam floods
private property upstream, government must pay—has been hornbook law at every
level of the judiciary. See, e.g., Dickinson, 331 U.S. at 749 (“when the Government
chooses not to condemn land but to bring about a taking by a continuing process of
physical events, the owner” is entitled to sue for just compensation); Nw. La. Fish
& Game Pres. Comm’n v. United States, 446 F.3d 1285, 1290-91 (Fed. Cir. 2006)
(“[w]hen the damages from a taking only gradually emerge, e.g., as in recurrent
flooding, a litigant may” sue (citing Dickinson, 331 U.S. at 749)); Cotton Land Co.
v. United States, 75 F. Supp. 232, 233 (Ct. Cl. 1948) (“If the construction of Parker
Dam and the impounding of water behind it had included some of the company’s
land within the bed of the lake … there would be a plain case of taking, and the
Government would have to pay compensation.”).
Against that wall of precedent, this case is easy. Indeed, in precedent that
binds this Court, the Court of Claims in Stockton v. United States, 214 Ct. Cl. 506
(1977),2 confirmed the clear, controlling rule: if the government “fail[s] to acquire
2
This Court has adopted as precedential decisions issued by the Court of Claims
prior to the establishment of the Federal Circuit. See S. Corp. v. United States, 690
F.2d 1368, 1371 (Fed. Cir. 1982).
24
flowage easements to forestall future flooding claims,” “only one actual flooding is
enough when the property is upstream of the dam and below the contour line to
which the dam is designed to impound water”—even when “[h]eavy” precipitation
raises the water to an “unprecedented” level within the reservoir. Id. at 512, 513,
518-19.
There, the Stocktons bought land upstream of a dam from a developer and
built a house. Id. at 512. After several years without incident, “[h]eavy rains …
brought reservoir elevations” up to “unprecedented levels,” causing “intermittent but
inevitably recurring” flooding. Id. at 513, 515 (quotation marks omitted). The Court
of Claims held that a taking occurred upon a single flood, reasoning “even if there
has been but one flooding, the result is only that which the engineers intended the
dam to achieve.” Id. at 519. That plaintiffs lived within the dam’s reservoir made
Stockton straightforward. “Having taken … part of plaintiffs’ land” within the dam’s
reservoir, the government “is liable for injury to the value of the remainder caused
by its use of the land taken” via its “flowage easement.” Id.
This case is another unusually straightforward one. Here, as the CFC found,
“plaintiffs’ properties are, by government design, within the dams’ flood-pool
reservoirs.” Appx34. And they would not have flooded without the dams. Appx37-
39; see Appx28 n.18 (“[P]laintiffs’ properties are privately-owned land within a
reservoir that only flooded in this cause because of the government’s construction
25
of the Addicks and Barker Dams[.]”). The government is therefore liable upon a
flooding for taking a flowage easement.
To be sure, more complicated cases exist. Both this Court and the Supreme
Court have addressed cases that involve flooding caused by a government project
other than a dam, like a post office (purpose-built to do something besides impound
water in a reservoir), see, e.g., Ridge Line, 346 F.3d at 1350; or involve property that
is downstream from the dam, see, e.g., Arkansas Game, 568 U.S. at 28, 37.
In a case where the government project is something other than a dam, for
instance, the foreseeability of the flood or the government’s intent to cause flooding
may be murkier. See Sanguinetti v. United States, 264 U.S. 146, 150 (1924) (runoff
was not “within the contemplation of or reasonably to be anticipated by the
government” in building a canal).
Downstream cases can introduce complex causation issues because the
property might have flooded even absent the dams. In addition, courts may need to
weigh the relative benefits of the dam for downstream claimants who may stand to
benefit from its flood control. See Alford v. United States, 961 F.3d 1380, 1382 (Fed.
Cir. 2020) (flooding of land adjacent to lake must be considered against flooding
absent flood control project).
Even in more difficult cases, this Court has found takings in non-dam and
downstream cases alike. See Ridge Line, 346 F.3d at 1350 (finding taking where
26
flooding was caused by post office); Ideker Farms, 71 F.4th at 987-88 (finding
taking downstream); Jacobs v. United States, 45 F.2d 34, 37-38 (5th Cir. 1930)
(same, due to increased frequency of flooding).
But the key point is that this case—brought by property owners upstream
within the reservoirs created by government-built dams—involves none of those
complications. “Cases saying that ‘one flooding does not constitute a taking’ and
cases therein cited, are cases where the property flooded downstream of the dam
and[/or] the damage is an unintended and unwanted result of” the government’s
project. Stockton, 214 Ct. Cl. 519. “[O]nly one actual flooding is enough when the
property is upstream of the dam and below the contour line to which the dam is
designed to impound water.” Id. at 518-19. This case ends there.
B. Plaintiffs Likewise Meet The Inapplicable Multi-Factor Tests.
As the Supreme Court and this Court have said, no “multi-factor test” is
needed in a per se physical takings case like this. Ideker Farms, 71 F.4th at 978 &
n.6 (holding “Plaintiffs[] prevail under” the Arkansas Game and Ridge Line multi-
factor tests and the per se takings rule); see Cedar Point, 141 S. Ct. at 2071. The
multi-factor tests articulated in Arkansas Game and Ridge Line are reserved for
“closer calls.” Ideker Farms, 71 F.4th at 980.3 Yet even applying those tests, the
3
The per se test for physical takings “reinforce[s] the principle that the permanent
appropriation of a flowage easement is ‘clear enough’ to be on the side of a per se
27
CFC found Plaintiffs met every factor. Appx27, Appx44. 4 As it did in Ideker Farms,
this Court should affirm that holding.
1. Nature and magnitude of the government’s action.
Plaintiffs meet the first Ridge Line factor—the nature and magnitude of the
government action—which maps onto Arkansas Game’s look at time and severity.
Time and Duration. As the CFC found, this factor is “essentially undisputed”
and “manifestly supports the finding of a taking.” Appx29-30. The Stockton Court
held that “only one actual flooding is enough when the property is upstream of the
dam and below the contour line to which the dam is designed to impound water.”
214 Ct. Cl. at 518-19; see Quebedeaux v. United States, 112 Fed. Cl. 317, 323 (2013)
(finding taking where government used a permanent structure to “flood[] a property
once”); Appx30. And here the CFC found that the “construction, maintenance, and
taking and not a trespass” or tort. Ideker Farms, 71 F.4th at 981 (quoting Hendler v.
United States, 952 F.2d 1364, 1371 (Fed. Cir. 1991)).
4
As the CFC observed, several of the Arkansas Game factors “subsum[e] the
considerations of the Ridge Line test,” such that the tests substantially overlap.
Appx27. Under Ridge Line, this Court has policed the line between a tort and a taking
by asking: (1) whether “the nature and magnitude of the government action” either
“appropriate[s] a benefit to the government at the expense of the property owner, or
at least preempt[s] the owners [sic] right to enjoy his property for an extended period
of time,” and (2) whether “the government intends to invade a protected property
interest or the asserted invasion is the ‘direct, natural, or probable result of an
authorized activity.’” 346 F.3d at 1355-56. The Supreme Court in Arkansas Game
looked to: (1) time; (2) intent; (3) foreseeability; (4) the character of the land; (5) the
plaintiffs’ reasonable investment-backed expectations; and (6) the severity of the
flooding. 568 U.S. at 38-40.
28
operation of the Addicks and Barker Dams in the past, present, and future” means
the government “reserves the right to repeat the impoundment.” Appx29-31 & n.20
(emphasis added).
Severity. The dams’ interference with Plaintiffs’ property rights is “substantial
and frequent enough to rise to the level of a taking.” Ridge Line, 346 F.3d at 1357.
As the CFC found, the flooding caused “significant harm.” Appx31. Most Plaintiffs
were evicted from their homes for months and could enter and exit their property
only by watercraft. Appx31-32. Plaintiffs were “almost entirely prevent[ed]” from
“normal use and enjoyment” of their properties. Appx31. Plaintiffs also suffered
“extensive damage” to their “real and personal property,” and “significant
diminution of property values.” Appx32-33. Because “a future storm of significant
magnitude” is “nearly inevitable,” Plaintiffs stand to be subjected to these harms all
over again. Appx31.
Benefit to the Government. The construction, maintenance, and operation of
the dams “appropriate[d] a benefit to the government at the expense of the property
owner.” Ridge Line, 346 F.3d at 1356. Here, the “benefit to the government” was
protection of a major metropolis and its ship channel. By the government’s own
account, the dams’ “purpose is to protect [these] downstream areas from flooding.”
Br. 35. Mission accomplished. The dams “prevent[ed] an estimated $7 billion in
projected losses downstream in Houston.” Id. (quoting Appx19).
29
Those savings to the public fisc came “at the direct expense” of upstream
property owners—Plaintiffs here—who derive no flood protection from the dams
and whose property would not have flooded but for the dams. Appx33-34; see Br.
26 (agreeing that any benefit “accrued to downstream property owners”). The Fifth
Amendment “bar[s] [the] Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole.” Armstrong v. United States, 364 U.S. 40, 48-49 (1960).
2. Intent or foreseeability.
Arkansas Game asks “the degree to which the invasion is intended or is the
foreseeable result of authorized government action.” 568 U.S. at 39. Ridge Line
similarly inquires whether the invasion is the “direct, natural, or probable result of
an authorized activity,” 346 F.3d at 1355 (quotation marks omitted). A plaintiff must
establish causation and either intent or foreseeability. Arkansas Game, 568 U.S. at
39. On causation, the government does not contest that the dams were a but-for cause
of the upstream flooding. 5 (The government’s argument that Harvey’s rains broke
the causal chain are addressed below, infra 36-39.) As to foreseeability or intent, the
CFC correctly found both met. Appx35-36.
5
“[F]or ten of the thirteen properties,” the government “essentially conceded that
without the dams these properties would not have flooded.” Appx37. And the CFC
found that “but for the Addicks and Barker project, flooding would not have
occurred to the level it did on the three contested properties.” Appx39. The
government does not appeal that finding.
30
Foreseeability. Flooding Plaintiffs’ upstream property behind the dams was
“the predictable result of the government action.” Ridge Line, 346 F.3d at 1356.
Foreseeability is an objective inquiry that asks whether there is “any reason to expect
that such result would follow.” Sanguinetti, 264 U.S. at 147-48. When the
government builds a dam capable of holding a certain amount of water, there is
reason to expect it will hold at least that much water. See Stockton, 214 Ct. Cl. at
518-19. Applying that rule, the CFC found the government “should have been aware
since the initial construction of the dams[,] and at every point onward, that the flood
pools in the Addicks and Barker Reservoirs would at some point … exceed the
government-owned land, inundating private properties.” Appx36.
More than that, the CFC found the government actually foresaw flooding
beyond government-owned land. Appx36-37, Appx40-41. Contemporaneous
documents spanning 80 years demonstrate the government was subjectively aware
that private property flooding within the reservoirs was not merely possible, but
“probable.” Appx40-41. As the CFC found, “the Corps knew from the outset that
the land it purchased was inadequate to hold the amount of water that would be
contained in the reservoirs should the embankment-design storm occur.” Appx40.
The government studied upstream flooding of private land for decades and
conducted drills to prepare for this scenario. See Appx11-17 (citing Appx10012
(1977 hydrology report); Appx10715 (1984 general design memorandum);
31
Appx10149 (1992 special report on flooding damages); Appx10185 (1995
reconnaissance report); Appx10301, Appx5599 (1990s and 2000s home elevations
surveys); Appx11067 (reservoir structure maps); Appx9500 (2009 multi-agency
tabletop exercise); Appx8780 (2009 operational assessment)). The government
concluded “it is only a matter of time before the reservoirs flood off government-
owned land.” Appx15 (quoting Appx9501). As the CFC found, “it is unreasonable
to contend” that the government did not “believe[] flooding beyond the extent of
government-owned land was probable.” Appx37.
The government’s “awareness” for takings purpose does not, contra its brief,
depend on the government’s supposed subjective weather forecasts.6 Instead, per
Stockton, what matters are the basic rules of physics that dictate the size of a dams’
reservoir. See infra 36-37. Regardless, even if the government’s subjective
awareness mattered, the CFC found “the Corps itself had fully anticipated a storm
the likes of Harvey.” Appx31; see Appx36, Appx40-41. According to the Corps’
own calculations, the original design storm used to construct the dams produced an
6
The government is thus wrong that the CFC needed to pick a particular point in
time at which the CFC foresaw flooding on private property upstream. Br. 35 n.4.
Regardless, the CFC found that the government was aware “since the initial
construction of the dams and at every point onward”; its understanding only became
more sophisticated with time. Appx35-37 (emphasis added). “Therefore, it is
irrelevant in this case whether foreseeability is measured by the 1940s, 1970s, or
even in the 2000s, because at all of those points defendant should have objectively
foreseen that the pools could and would exceed government-owned land.” Appx36.
32
amount of rainfall roughly equivalent to Harvey. Compare Appx6-7 (design storm
generated 31.4 inches of rain over 3 days), with ECF 242 at 59 (Harvey dropped 31.3
inches in Addicks and 31.1 inches in Barker over 5 days). The government modified
the dams after Tropical Storm Claudette to withstand an even larger storm. Supra
13, 15. Even setting aside the government’s design storms, the CFC found that “the
sheer frequency of significant storms in the region both before and since construction
of the dams” indicated “that [Harvey] was more than an isolated event.” Appx31;
see Appx17 (finding that Tropical Storms Claudette and Allison generated more
rainfall than Harvey). On that record, the CFC found the government was “well
aware that storms capable of overflowing government-owned land were likely to
occur.” Appx40-41. “The Corps subjectively knew by the 1940s, and particularly by
the 1960s, that storms larger than the design storm were likely to occur over Addicks
and Barker” and “that pools exceeding government-owned land were probable at
some point.” Appx40-41.
Intent. Because upstream flooding beyond government-owned land was both
foreseeable and foreseen, this Court need not decide whether the government
intended this result. But it did.
“[I]ntent,” under Ridge Line, is satisfied if the government intended its
physical occupation of Plaintiffs’ property, even if it did not specifically intend to
abridge a private property right. See LaBruzzo v. United States, 144 Fed. Cl. 456,
33
474 (2019). “[B]uild[ing] a flood-control dam knowing that certain properties will
be flooded by the resulting reservoir” is a “conscious decision to subject particular
properties to inundation so that other properties [will] be spared.” Harris Cnty. Flood
Control Dist. v. Kerr, 499 S.W.3d 793, 807 (Tex. 2016).
That is exactly what transpired. As the CFC put it, “the Corps planned all
along to impound water to the maximum extent of the available storage—a
determination that never altered.” Appx41. The government also made “a calculated
decision” not to acquire all the land within the dams’ reservoirs. Appx7, Appx45.
Thus, as the CFC found, “plaintiffs’ properties are, by government design, within
the dams’ flood-pool reservoirs.” Appx34. And that establishes intent.
3. Property interests and investment-backed expectations.

The government has effectively conceded that Plaintiffs held the relevant
property interest at the time of the taking; they “are owners of properties not subject
to flowage easements.” Appx28 & n.18; see infra 45 (addressing the government’s
argument that Milton was wrongly decided and the Flood Control Act alters property
owners’ expectations). Plaintiffs also had “reasonable investment-backed
expectations” that their property would not flood as it did. 7
7
The investment-backed expectations inquiry is irrelevant to physical takings cases.
See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432 (1982). But
Plaintiffs still satisfy it.
34
As the CFC found, Plaintiffs “did not know their properties were located
within the reservoirs and subject to attendant government-induced flooding,” and
had no objectively reasonable cause to know of that risk. Appx43-44. The Addicks
and Barker dams are relative bumps on the Texas landscape. They do not loom over
the horizon like the Hoover dam, but rather rise gradually, “almost imperceptibly”
over several miles. Appx6. On a typical day, their “reservoirs” are ordinary dry land.
Appx16. As the court explained, “in rapidly developing suburbs of a large city like
Houston,” there is “a regular flow of people moving in and out of the area.” Appx44.
These residents, moving to a suburb like any other—with homes, schools, shopping
malls—have no cause to suspect that their new homes lie within reservoirs absent
“an especially aggressive public campaign.” Appx44. Though the government held
some town halls and made maps available online, the CFC found those were not
enough to put a reasonable homeowner on notice. Plaintiffs thus had reasonable
expectations their properties would not flood as they did.
C. The Government’s Counterarguments Fail.
The preceding analysis applies hornbook law—indeed, even the government
has endorsed this rule in other cases. See Katrina Br. 24 (“[T]he invasion of private
property necessary for [a] project to be constructed, operated, or used as intended
can be understood as an authorized acquisition of the property”—such as, for
example, “when the water impounded in [a] reservoir created by a government-
35
constructed dam submerges private property.”); Br. for United States at 18-19,
Arkansas Game, 568 U.S. 23 (2012) (No. 11-597), 2012 WL 3680423 (“[T]he
inundation of land by backwaters behind a dam” is “now recognized as an archetypal
taking by floodwaters.”). Today, however, the government reaches for a grab bag of
foreclosed arguments and policy defenses to keep from paying Plaintiffs for what it
took. This Court should reject each one.
1. Subjective weather predictions are irrelevant, but the CFC found

the government foresaw Harvey’s rainfall.
The theme of the government’s brief is that Harvey was an unprecedented
storm. That fact, the government argues, absolves it of liability for several reasons:
(1) it rendered the storm not foreseeable; (2) it broke the causal chain between the
dams and upstream damage; and (3) it is unlikely to recur, which the government
says reduces the duration and severity of its action. The government’s subjective
weather predictions are not the test. In any event, the government’s premise about
the storm is wrong, and its conclusions lack merit.
When the government builds a dam and flooding occurs upstream, that is a
taking irrespective of whether the government subjectively predicted the conditions
that would cause the dam to fill. Supra 22-27. In Stockton, there was no indication
the particularly “[h]eavy rains in April 1973” were predictable or predicted. 214 Ct.
Cl. at 513. Likewise in Cotton Land Co. v. United States, 75 F. Supp. 232, 233 (Ct.
Cl. 1948), the Court of Claims found a taking where the plaintiff’s land was flooded
36
even beyond the dam’s reservoir due to later changes to water flow and land. There,
government engineers had not “studied” this chain of events “in advance.” Id. at
233-34. The Court nevertheless found a taking because the eventual flooding
followed “naturally” from the government’s building the dam. Id. at 235. When the
government builds a dam, it must “expect,” in the relevant sense, that it could fill
and flood upstream—even if that flooding requires extreme weather or geological
changes to occur. This case, though, is much easier because Plaintiffs’ properties
“are, by government design, within the dams’ flood-pool reservoirs.” Appx34; see
supra 10-15, 34. That is enough.
Regardless, the government’s premise about the storm is wrong. Yes, Harvey
was exceptional in its reach and the amount of rain in some areas. Appx18. But as
to the rain that fell over Addicks and Barker, Harvey was not unprecedented for the
region. Its rainfall was on par with Hearne (31”) and less than Claudette (43”) and
Allison (36”). Appx17, Appx31, Appx 36-37. As the CFC found, the government
should have foreseen and indeed foresaw that amount of rain. Supra 31-33.8
8
The government suggests historical storms are irrelevant because they were
centered “outside the Project area.” Br. 25. But, as the CFC found, the Corps
contemporaneously acknowledged their relevance: the Corps’ studies foresaw that
had these storms “centered over Addicks and Barker … the combined rainfall …
could have resulted in flood pools exceeding the limits of government[-]owned
land.” Appx17 (quoting Appx8787) (bracket in original).
37
Next, the government’s conclusion, that extreme rain severs causation, is
untenable. Courts have found causation on much more attenuated facts. In Cotton
Land, for example, the government built a dam and water filled the reservoir, leaving
plaintiff’s land untouched. Then “the river flowed into the lake; deposited its sand
where it collided with the still water; the deposit of the sand placed another obstacle
to … the river; this filling up of the bed of the river raised the level of its water; it
overflowed its banks” and, at last “[spread] out over the [plaintiff’s] land.” 75 F.
Supp. at 233. That “series of events” subsequent to the government’s construction
of the dam did not “break the chain of legal connection between the defendant’s act
and the plaintiff’s loss.” Id.
Causation is much more straightforward here. The government built the dams
to spare Houston in the event of extreme rainfall. The government cannot now claim
that Harvey’s rainfall (similar to the original design storm and less than other area
storms) broke the causal chain between its dams and the flooding that resulted. Nor
does it matter that extreme rainfall is a very low probability event on any given day.
The point is that, over time, it is possible, even probable, that a severe storm will
eventually hit. Appx31. That is why the government built the dams and spent 70
years improving them and running flood scenarios in preparation for just such an
event. Compare supra 10-14, with Br. 31-32.
38
The government’s comeback—that it should be allowed to pay only for the
land that, in its view, “optimize[s] the cost of achieving a desired level of flood
management”—would let the government take land for free if it deems that “cost-
efficient[] … policy.” Br. 30-33.9 But the CFC found that “the dams were designed
to contain more water than the acquired land could hold,” and “the Corps planned
all along to impound water to the maximum extent of the available storage.” Appx7,
Appx41. Moreover, by the late twentieth century, the dams were fortified to handle
a storm and flood pool substantially larger than Harvey. Supra 13, 15. The
government cannot avoid takings liability in that instance just because it believes
payment is not “optimal.”
The government’s arguments about the duration and severity of the invasion
onto Plaintiffs’ property, too, must be rejected. The government protests that
evidence was lacking and that the CFC made no findings regarding the recurrence
of a Harvey-like storm. Br. 23-24. This is inaccurate and misses the point.
There was evidence on this issue at the liability and compensation phases.
Appx31 (citing government-witness Kappel’s and Plaintiffs-witness Long’s
testimony); see also, e.g., Appx8977 (Bedient’s expert report for Plaintiffs finding
9
The government’s carefully worded point that its land acquisition “was consistent
with the Corps’ guidelines in effect when the Project was designed and built,” Br.
31-32, writes around the reality that that was no longer the case by the late twentieth
century. See Appx8925-26, Appx8888 n.2.
39
“there will continue to be rainfalls of similar magnitude or greater”). Based on that
evidence, the CFC rejected the government’s recurrence estimates and found that “a
similarly large storm, producing comparable rainfall [to Harvey], remains likely to
occur again.” Appx31; see Appx33, Appx73. As the government stated when it
designed the dams, rainfall like Harvey’s (measured over Addicks and Barker) may
be “likely to occur with a frequency of once every 50 years.” Appx8 (quoting
Appx9094). That would put the odds of another Harvey over the life of a 30-year
mortgage at 45%.10 In any event, the CFC found that “one Harvey-sized storm was
not necessary to create large flood pools—a series of consecutive moderate storms
could have the same effect.” Appx37 (crediting testimony).
On the law, the specific frequency with which a storm like Harvey will recur
is relevant, at most, to the valuation of the easement, not “the character of the
invasion,” which is what “determines the question whether there is a taking.” Cress,
243 U.S. at 328; Hendler v. United States, 952 F.2d 1364, 1381 (Fed. Cir. 1991)
(“[T]he extent of occupation was only relevant to compensation, not liability.”). As
the CFC found, the government will “use its easement” when the next storm comes
because “this was more than an isolated event, and … it is likely to recur.” Appx73;
see Appx31; see also 2,953.15 Acres of Land v. United States, 350 F.2d 356, 360
Even a 1-in-100-years storm has a 25% chance of occurring during a 30-year

10
mortgage.
40
(5th Cir. 1965) (law presumes that the condemnor will exercise its easement).
Whether the government uses its flowage easement in 50 years or 100 years or more
has no effect on its permanence.
2. There is no “police power” exception to the Takings Clause, nor

does this case fit the facts of a necessity defense.
As the government acknowledges, Br. 49, this Court has already rejected a
“police power” exception to takings liability. Milton, 36 F.4th at 1162. Regardless,
even as a putative defense, the “necessity” line of cases has no application.
For one, this case does not involve land use “akin to public nuisances.” Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1022 (1992) (citing Miller v. Schoene, 276
U.S. 272, 279 (1928), Mugler v. Kansas, 123 U.S. 623 (1887)); see Bachmann v.
United States, 134 Fed. Cl. 694 (2017). Diseased apple trees and criminal enterprises
are irrelevant.
For another, this case is not one where the government acted in a surprise
exigency out of “actual necessity, to prevent the spreading of a fire or to forestall
other grave threats to the lives and property and others.” Lucas, 505 U.S. at 1029
n.16 (quotation marks omitted). The government focuses on the tick-tock of events
after Harvey’s rains started to fall on August 25, 2017. The government repeats that
the “water had to go somewhere.” Br. 37, 50. It insists all the government could do
was open or close the dams’ gates, choosing upstream or down.
41
But that artificial aperture takes as a state of nature—rather than as the
government’s considered choice—the very dams of which the gates are part. For
nearly a century, the government had planned where to put the water: upstream.
“[T]he whole purpose for the … project was to prevent downstream flooding,
especially in downtown Houston.” Appx5.
During the storm, the government operated the dams consistent with its
statutory directive and Water Control Manual exclusively to protect downtown.
Appx45 (the Corps “had little to no choice on how to act when Harvey hit”). At no
point did the Corps “stray from its primary objective to prevent downstream
flooding,” even when that “mean[t] impounding water on private property.”
Appx40.11 The government’s complaints that it “provided long-term benefits” to
others and should not be held “responsible for perfect flood control,” Br. 29, 55,
have no application upstream because the people who reside in the reservoirs reap
no benefits from the dams, supra 11, 29-30. With respect to them, “the government
[wa]s responsible for creating the emergency.” Appx45.
Handwringing about its “no-win” situation, the government gestures toward
the classic “trolley problem.” That puzzle may pose a gray area to ethicists and moral
11
The government at one point seems to suggest the dams lacked a public purpose
because “[a]ny … benefit accrued to downstream property owners, not the
government.” Br 26-27. That makes no sense. The dams’ $7 billion in savings to a
major city and shipping artery serves the public policy objective the government
elsewhere acknowledges—“devastation in a highly populated urban area.” Br. 17.
42
philosophers. But for courts, the Fifth Amendment supplies a black-and-white
answer. The government may reroute the trolley—or redirect the rainfall—to save
many and burden a few. It simply must pay the people who, as a result, find
themselves on the wrong side of the tracks, or the upstream side of the dam.
The government’s cited “necessity” cases make this clear. In each one, the
government acted upon property already in the path of some surprise disaster, be it
blight or fire. See Bowditch v. City of Boston, 101 U.S. 16, 17-18 (1879) (government
blew up a building in the path of the fire); Miller v. Schoene, 276 U.S. 272, 277
(1928) (same as to trees in the path of the blight); cf. Nat’l Bd. of YMCA v. United
States, 395 U.S. 85, 90-92 (1969) (approving emergency occupation of buildings in
which rioters had already started fires). No case allows the government to move
unconnected property into the path of the emergency without compensation.12 And
no case has ever applied the “emergency” exception to free the government from
compensating property owners behind a dam.
3. There is no “coming-to-the-nuisance” defense to takings.
The government next says that, because Plaintiffs bought land next to a dam
in a “flood-prone region,” they should have known they might get flooded and
12
The YMCA Court distinguished the situation where the government appropriated
the building not because the rioters were already bearing down, but because the
building was strategically located and could be used to stop destruction of other
buildings. See 395 U.S. at 90. That fact pattern—more akin to this one—was outside
the emergency exception.
43
therefore cannot sue. Br. 39-45. This theory is foreclosed by the CFC’s factual
findings that Plaintiffs did not know—and had no reason to know—about the flood
risk. Supra 35. Still, setting aside that finding, the government’s “coming-to-the-
nuisance” defense defies law and logic.
On the law, the Supreme Court has been clear. A plaintiff’s takings “claim is
not barred by the mere fact that title was acquired after” the governmental action.
Palazzolo, 533 U.S. at 630. This Court recognized the same rule in Cooper v. United
States, where, although the plaintiff “did not acquire legal title … until after the
physical events causing the taking began,” that was “no impediment to recovery.”
827 F.2d 762, 764 (Fed. Cir. 1987). Case after case confirms the point. The
Stocktons, for instance, bought their property and built their house after the
government built a dam. 214 Ct. Cl. at 510. In Dickinson, the Supreme Court held
that a plaintiff could recover for partial upstream flooding even though the flooding
had already begun at the time he acquired title. 331 U.S. at 747-49. The Supreme
Court has recognized that even “purchasers with notice” have a “compensation right
when a claim becomes ripe.” Palazzolo, 533 U.S. at 628 (emphasis added). “[P]eople
still do not expect their property … to be actually occupied.” Horne v. Dep’t of
Agric., 576 U.S. 350, 361 (2015).
As for its logic, the government’s argument proves too much. As the
government puts it, any “reasonable property owner” should “appreciate[] the
44
implications of acquiring property” near a dam. Br. 43. If that were true, the
government could take the entire reservoir for free so long as private property
changed hands before the first flood, when a takings claim ripens. Only individuals
who acquired property before a dam’s construction and held it through the flood
could ever bring a claim. That is not the law. “The Taking Clause is not so quixotic.”
Palazzolo, 533 U.S. at 628.
4. The Flood Control Act does not abrogate the Fifth Amendment.
Next, the government suggests that the Flood Control Act cuts off Fifth
Amendment liability. The government, however, concedes that this Court rejected
that very argument in Milton. 36 F.4th at 1160. The government repackages the
point, arguing that the Flood Control Act is a “background principle limiting …
Plaintiffs’ expectations and property rights.” Br. 55. The government’s rule would
preclude takings liability for all property behind the dam. Whatever its wording, the
government’s position is that it may take property for free any time it legislates to
diminish property-holders’ expectations. This Court should reject that thinly veiled
attempt to end-run Milton and the Fifth Amendment.
5. “It costs too much” is not a defense.
Finally, the government says it should not have to pay just compensation
because it costs too much. Br. 30-34, 54. To quote the Supreme Court: “Time and
again in Takings Clause cases, the Court has heard the prophecy that recognizing a
45
just compensation claim would unduly impede the government’s ability to act in the
public interest.” Arkansas Game, 568 U.S. at 36. But, after each successive case
reaffirming the government’s obligation to pay just compensation, “[t]he sky did not
fall.” Id. at 37. Nor will it today.
The government’s plea is particularly inapt here. The government laments that
“unanticipated urban development” since the dams’ construction has run up the bill
for the taking. Br. 33 (alteration omitted). But “[t]he Government could, of course,
have taken appropriate proceedings, to condemn as early as it chose, both land and
flowage easements.” Dickinson, 331 U.S. at 747. “By such proceedings it could have
fixed” the price at a lower level. Id. Indeed, as the CFC found, the government made
repeated cost-benefit calculations over decades and chose not to purchase additional
land. Supra 11-14, 31-34.13 The government’s regret that it made a bad bet does not
insulate it from the demands of the Fifth Amendment.
13
The government suggests it should not be liable because, in order to purchase land
after the dams’ completion, it would have had to get congressional approval—and
that would make the government liable for its inaction. Br. 34. The government is
being held liable for “inaction” in this case no more or less than in any inverse
condemnation proceeding, where by definition the government has not acquired the
property in advance of the taking. In any event, the CFC found liability based on the
government’s “actions relating to the Addicks and Barker Dams,” from construction,
through maintenance, and operation. Appx46 (emphasis added).
46
II. The Government’s Attacks On Just Compensation Lack Merit.

The government’s attacks on just compensation for past damages in addition
to the taking of its permanent flowage easements run counter to precedent. The
appropriate measure of compensation is the “‘past, present, and prospective’
damages” resulting from the taking. Ideker Farms, 71 F.4th at 987 (quoting Ridge
Line, 346 F.3d at 1359). “[W]hile the flowage easement … compensates Plaintiffs
for the taking caused by future flooding, it does not compensate them for past
damages” caused by already-occurred flooding. Id. at 986. That rule supports each
of the compensation awards the government attacks as “consequential.” Br. 55-56.
A. Plaintiffs Are Entitled To Compensation For Structural Damage

And Loss Of Personal Property.
The CFC was right to award compensation for damaged structures and
personal property losses. See Appx75-77. “The Government has a categorical duty
to pay just compensation when it takes your car, just as when it takes your home.”
Horne, 576 U.S. at 358. There is “no difference in the destruction of personal
property and real property, where i[n] either case the owner is deprived of its use.”
Causby v. United States, 75 F. Supp. 262, 264 (Ct. Cl. 1948). “In each case there is
a taking for which the Constitution requires just compensation.” Id.
This axiom yields a clear answer here. The CFC held the government liable
for taking “plaintiffs’ personal property, fixtures, and improvements [to structures]
damaged or destroyed” by water impounded behind the government’s dams.
47
Appx69. Plaintiffs’ “personal property was not merely damaged by the
government’s taking of plaintiffs’ real property. Rather, the personal property itself
was taken by the government.” Appx77.
This Court took the same approach in Ideker Farms. 71 F.4th at 987-88. There,
as here, “Government-induced flooding … directly took both a permanent flowage
easement on Plaintiffs’ land and destroyed” personal property, their “crops.” Id. at
987. This Court awarded damages for each aspect of the taking as “a separate and
independent loss of compensable property in its own right.” Id.
The government’s contrary arguments fail.
First, the government argues that Plaintiffs’ claims for structures and personal
property represent “consequential damages,” “too attenuated” from the flooding. Br.
61. (The government levels this accusation against every aspect of Plaintiffs’
damages awards it appeals.) This Court rejected the identical argument in Ideker
Farms, explaining “Plaintiffs do not claim compensation consequential to the taking
of an easement—rather, they seek compensation for the government’s
appropriation” by flooding “of two distinct property interests.” 71 F.4th at 987-88.
Ideker Farms does not stand alone. In Arkansas Game III, this Court awarded
compensation for flood damage to plaintiffs’ trees together with a flowage easement.
Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364, 1370-72 (Fed. Cir.
2013). Similarly, in Pete v. United States, 531 F.2d 1018 (Ct. Cl. 1976), the court
48
awarded compensation for cabin barges due to the government’s taking of the
property on which the barges resided. Id. at 1032-34. And in Causby v. United States,
the court awarded compensation not only for “a decrease in rental value of $1,060,”
but also for “the taking and of the exercise of the easement[, the] personal property
thereon, to wit, chickens, of a value of $375.00 [which] were destroyed and thereby
taken.” 75 F. Supp. at 263. This Court should not depart from its longstanding
approach.
Second, the government suggests that Jackson v. United States, 230 U.S. 1
(1913), bars recovery for personal property. Br. 61. But that case is irrelevant
because the Supreme Court found no taking. Jackson, 230 U.S. at 20-23; see also
Cress, 243 U.S. at 327 (distinguishing Jackson as inapposite because there was “no
direct invasion of the lands of the claimants” by the government).
Third, the government makes a policy pitch. It says requiring compensation
for structural damage and personal property loss is unfair because the government
may flood Plaintiffs’ land again and so might have to pay for structures, appliances,
and the like in a subsequent action. Br. 61-62.
That argument ignores the rule of Ideker Farms and the line of cases that came
before, all of which hold that personal property interests are separately compensable
in inverse condemnation cases upon a finding of a permanent easement. See 71 F.4th
49
at 986. What the government might be liable for under that rule in some future case
is the subject of that case, not this one.
At bottom, the government’s unfairness argument boils down to an objection
to paying more when it chooses to take property through inverse condemnation
rather than eminent domain. But that is exactly what the caselaw contemplates. In
Dickinson, the Supreme Court had no patience for this complaint. 331 U.S. at 750.
“[W]hen the Government chooses not to condemn land but to bring about a taking
by a continuing process of physical events,” the government—not the plaintiff—
bears the financial risk. Id. at 749. The government cannot get out of paying for the
structures and personal property its dams took by flood because of its decision to
wait for that flood.
B. The CFC Correctly Awarded Mr. Holland Compensation For The

Taking Of His Leasehold Advantage.
The CFC’s decision to grant Mr. Holland $3,300 for his lost leasehold
advantage was similarly supported by precedent. Appx77. “It has long been
established that the holder of an unexpired leasehold interest in land is entitled, under
the Fifth Amendment, to just compensation for the value of that interest when it is
taken upon condemnation by the United States.” Alamo Land & Cattle Co. v.
Arizona, 424 U.S. 295, 303 (1976) (collecting cases) (footnote omitted). The
accepted means of valuing a taken leasehold interest is to award “the value of the
use and occupancy of the leasehold for the remainder of the tenant’s term, plus the
50
value of the right to renew … less the agreed rent which the tenant would pay.” Id.
at 304 (quoting United States v. Petty Motor Co., 327 U.S. 372, 381 (1946)).
The CFC followed this law to the letter. The court found that “the government
effectively terminated Mr. Holland’s leasehold” by flooding his property, rendering
it uninhabitable. Appx20, Appx77. Next, the court accepted the expert valuation of
Mr. Holland’s rental payment, which was $550 under-market. Appx58 & n.8. The
court awarded Mr. Holland that $550 leasehold advantage for the six months
remaining on his lease. Appx58, Appx76-77.
Seeking to overturn this faithful application, the government begins by
incorrectly describing Mr. Holland’s leasehold advantage as “expectations under a
contract.” Br. 57. But that contravenes Alamo Land, Petty, and a host of other cases,
which hold that a leasehold interest is property requiring compensation. See Causby,
75 F. Supp. at 263 (compensating for rental property); Almota Farmers Elevator &
Warehouse Co. v. United States, 409 U.S. 470, 474 (1973) (compensating lease-
holder for unexpired lease interest); A.W. Duckett & Co. v. United States, 266 U.S.
149, 152 (1924) (“claimant’s possession under its lease was a part of the res”).
The government next invokes off-point precedents that, unlike here, found no
taking because the government did not intend to occupy the leased property.
Compare Br. 57, with Sun Oil Co. v. United States, 572 F.2d 786, 818-19 (Ct. Cl.
1978) (no taking because the government’s “interferences with plaintiffs’ lease
51
rights” stemmed from disputes regarding lease terms, rather than the government’s
“intent … to take plaintiffs’ property”); Palmyra Pac. Seafoods, LLC v. United
States, 561 F.3d 1361, 1363-65, 1370 (Fed. Cir. 2009) (no taking where the
government created a wildlife refuge adjacent to land leased by plaintiffs to conduct
commercial fishing, even though that action rendered plaintiffs’ operation less
profitable). By contrast, the CFC found that the government directly and
intentionally occupied Mr. Holland’s leased property by flood and thereby took his
“unexpired leasehold interest in [that] land.” Alamo Land, 424 U.S. at 303.
C. The CFC Correctly Awarded Compensation For Lost Rental

Value.
The CFC was also right to compensate Mr. Sidhu for lost rental value from
his condo units. Appx82-83. Compensation must be paid for real or personal
property that constitutes a business asset—whether crops, chickens, or buildings—
where its destruction or disruption is “the product of [the government’s] direct
invasion.” United States v. Causby, 328 U.S. 256, 265 (1946); accord Ideker Farms,
71 F.4th at 987-89 (“the underlying property of a business” is compensable where
“directly” taken by government-induced flooding). For real property, the measure of
just compensation is “the fair rental value of the property for the period of the
taking.” Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577, 1581 (Fed. Cir. 1990).
As the CFC explained, Mr. Sidhu’s units are business assets, which he rents
to tenants for a steady rental income each month. See Appx67, Appx82.
52
“Impounding floodwaters directly displaced Mr. Sidhu’s tenants” and terminated
that rental income. Appx83. That loss requires compensation.
Breaking from this established approach, the government argues that rental
value “resembles lost profits, which are generally not compensable.” Br. 58-59
(collecting lost-profits cases). But that argument “misapprehends the distinction”
between “lost profits from operating a business” and “the underlying property of a
business.” Ideker Farms, 71 F.4th at 988-89. “The former, but not the latter, is
merely incidental to the taken property” and therefore non-compensable. Id. at 989.
The rental value of a business property is a core example of compensable “property
of a business.” Id.
The government’s resort to cases about non-compensable “business-
management and travel costs” only highlights that the condo units fall on the
compensable side of the line. Compare Br. 58, with Yuba Nat. Res., 904 F.2d at
1580-82 (awarding rental value of mineral rights but declining to award lost profits
from goldmining operation); Causby, 75 F. Supp. at 263-64 (allowing recovery for
the destruction of chickens but declining to award lost profits from the operation of
the chicken farm).14
14
Indeed, the CFC applied the government’s cases to deny Mr. Sidhu damages for
travel costs to manage his properties as “hav[ing] too attenuated a connection with
the government’s taking.” Appx82-83.
53
The government retreats to its familiar rejoinder that the CFC was wrong to
award lost rent “in addition to, not instead of” a permanent flowage easement. Br.
57-59. As discussed, Plaintiffs are entitled to compensation for the “future”
permanent easement and “past” property deprivation, reflecting “the government’s
appropriation of … distinct property interests.” Ideker Farms, 71 F.4th at 987-89;
supra 47-50. This Court should not depart from that rule.
D. The CFC Correctly Awarded Compensation For Displacement

From Property Rendered Uninhabitable By The Taking.
Plaintiffs are due the displacement costs the CFC awarded. Appx82. When
the government occupies private property, displacement costs such as “the
reasonable cost of moving out” can be compensated in the appropriate case. United
States v. General Motors Corp., 323 U.S. 373, 382-83 (1945) (GMC).
The calculation of just compensation is context dependent. The Supreme
Court has eschewed rigid rules because doing so would “defeat the Fifth
Amendment’s mandate for just compensation.” Id. at 380-82. Lower courts have
discretion to fashion appropriate awards in takings cases, including by “deviat[ing]
from the traditional permanent taking-diminution in value and temporary taking-
rental value approaches” when doing so is necessary to make plaintiffs whole. Otay
Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1369 (Fed. Cir. 2012) (citing
Vaizburd v. United States, 384 F.3d 1278, 1286-87 (Fed. Cir. 2004)).
54
Allowing the recovery of displacement costs in this case falls within that zone
of discretion. As the CFC found, Plaintiffs’ “homes were rendered uninhabitable”
for months by the taking. Appx82. It therefore awarded Plaintiffs the cost of
“securing substitute housing actually and necessarily incurred.” Appx82. The CFC
reasonably determined that failing to award these costs would undercompensate
Plaintiffs in light of the nature of the government’s taking. Appx82.
The Supreme Court has endorsed that approach in other cases where the
government took some portion of, but not the “entire interest” in, a property. GMC,
323 U.S. at 382. In GMC, for example, the government took temporary occupancy
of plaintiff’s factory, which was full and operative, to assist manufacturing for the
war effort. Id. at 375. That meant plaintiffs had to move out. The lower court pegged
just compensation to the rental rate of the property as if it were sitting empty. But
the Supreme Court reversed that holding. “[B]y the form of its [taking],” the Court
explained, the government “chop[ped]” plaintiffs’ proverbial bundle of sticks “into
bits” and left them “holding the remainder, which may then be altogether useless to
[them].” Id. at 382. In such a case, the government must “pay more than the ‘market
rental value’ for the use of the chips so cut off.” Id. Relocation costs are part of the
equation. Id. at 382-83.
55
Applying this rule, the Supreme Court has also awarded moving and
displacement costs, for example, in Kimball Laundry Co. v. United States, 338 U.S.
1, 8-9 (1949). And so, too, did the CFC here. Appx82-83.
The government suggests that compensating Plaintiffs for displacement was
wrong because the CFC found a permanent, not temporary, taking. Br. 60-61. This
argument merely repackages the government’s general objection to the Ideker
Farms-endorsed approach of compensating each invaded property interest—“past,
present, and prospective”—upon the finding of a permanent flowage easement by
flood. 71 F.4th at 987-89; see supra 47-50; Appx26 n.17 (recognizing separate
compensable property interests). Moreover, the argument flips just compensation
principles on their head. It presumes that compensation for a permanent easement
“is much less than the compensation that would be due if the easement were
temporary,” when this Court has held precisely the opposite. Otay Mesa, 670 F.3d
at 1368. The CFC’s sound, discretionary judgment to award displacement costs
should be affirmed.
* * *
The CFC’s finding of liability for a taking, as well as its compensation awards
for structural and personal property damage, loss of a leasehold advantage and rental
value, and displacement costs should be affirmed.
56
CROSS-APPEAL
Three aspects of the CFC’s decision must be reversed. First, the CFC erred
by finding the government liable for taking a permanent flowage easement on Ms.
Popovici’s property but awarding her $0 in damages for that easement. Second, the
CFC erred by offsetting as “special benefits” FEMA aid that was generally available
to Harvey victims. Moreover, the government failed to meet its burden to prove any
offset is merited. Third, the CFC was wrong to ignore the court’s earlier directives
and deny class certification based on the timing of the motion alone.
I. The CFC Erred By Finding A Permanent Flowage Easement On Ms.

Popovici’s Property, But Awarding $0 Of Compensation For It.
The Constitution imposes a “clear and categorical” rule for physical takings:
“the government must pay for what it takes.” Cedar Point, 141 S. Ct. at 2071. With
respect to Ms. Popovici, the CFC broke that cardinal rule by rendering two
contradictory holdings. First, at the liability phase, it found the government liable
for a permanent flowage easement on Ms. Popovici’s property. See Appx21,
Appx46. Then, at the just compensation phase, it awarded her $0 for that easement.
See Appx75-77, Appx81. Though the CFC did not explain its award to Ms. Popovici,
the $1,401.49 figure matched the cost of repairing her garage (which the CFC
credited) to the penny. Compare Appx75-77, with Appx81.
That was error. Either Ms. Popovici is entitled to compensation in exchange
for the flowage easement taken, or the government is not entitled to a flowage
57
easement on her property. Even the government’s expert valued Ms. Popovici’s
flowage easement at $5,000. See ECF 569 at 26; Appx63. And Plaintiffs’ experts
valued it at over $100,000. See Appx11418, Appx11537.
Giving the government an easement for free is particularly unfair in these
circumstances. Because the CFC failed to clarify the partial extent of the easement
on Ms. Popovici’s property (which reached only her land and did not cause structural
damage to her home), her property record will not reveal the limited nature of the
easement. As a result, her home value is significantly impacted.
Nor will this decision affect Ms. Popovici alone. The error, if allowed to stand,
will permit the government to take for free easements on the hundreds or thousands
of properties that (like Ms. Popovici’s property) straddle Harvey’s flood line. As to
all these property owners, the CFC could find an easement and award compensation,
or it could decline to find an easement. The Constitution, however, precludes it from
awarding a permanent flowage easement for free.
II. The CFC Erred By Offsetting Generally Available FEMA Relief.
The CFC erred by offsetting from several Plaintiffs’ just compensation awards
generally available emergency relief aid provided by FEMA to over 270,000 Harvey
victims in the storm’s immediate wake. Appx84-85. These aid payments do not meet
this Circuit’s test for “special benefits,” the only category of benefits that can be
offset. The CFC recognized as much, but then devised its own, new test, purportedly
58
to avoid “duplicate recovery.” Even were that approach defensible, the CFC’s
judgment cannot stand because the government made a tactical decision not to seek
to prove any duplicate recovery for Plaintiffs here.
A. FEMA Aid Does Not Meet This Circuit’s Test For Special Benefits.
As the CFC recognized, FEMA emergency relief does not fit this Court’s
established “special benefits” test. Appx83. The CFC should have stopped there.
This Court has permitted only a narrow category of benefits to be offset from
just compensation awards: so-called “‘special’ benefits.” See Hendler, 175 F.3d at
1379-80 (citing City of Van Buren v. United States, 697 F.2d 1058, 1062 (Fed. Cir.
1983)); accord Bauman v. Ross, 167 U.S. 548, 574-75 (1897). To qualify as a
“special benefit,” an economic advantage must (1) “inure specifically to the
landowner who suffered the partial taking”; and (2) be “associated with the
ownership of the remaining land.” Hendler, 175 F.3d at 1380. In addition, a “special
benefit” must differ in kind from the benefits conferred on others. See 3 Nichols on
Eminent Domain § 8A.02[4][a], Lexis (3d ed. database updated 2023) (collecting
cases). Economic benefits conferred broadly on people and properties cannot
constitute “special benefits.” See City of Van Buren, 697 F.2d at 1062. This Court
and the Supreme Court have only ever found this strict test met on a very particular
fact pattern: a partial taking of land that also “increase[d] … the value of the
remaining portion.” United States v. River Rouge Improvement Co., 269 U.S. 411,
59
415-16 (1926) (finding “special benefit” where land partially taken by riparian
improvement project increased in value because of its frontage on improved,
widened river); see also Bauman, 167 U.S. at 574-75 (considering “increase in
value” of partially taken land due to new highway).
FEMA emergency relief does not meet the “special benefits” test. It was not
awarded to takings victims because of their property’s relationship to the taking and
did not relate to the value of the remaining land. Over 270,000 victims received
FEMA assistance, irrespective of whether their property was taken, or benefitted, by
the government’s dams. See Appx67 (“Individuals within the disaster zone are
eligible if they are a U.S. citizen, noncitizen national, or a qualified alien, they
register within the application period, and FEMA verifies their request for disaster-
related damages.”); Appx84 (recognizing “the government made funds available to
some others whose homes were flooded during Harvey but not because of a
government taking”). And some of the aid was related to emergency supplies
(diapers and toothbrushes) and rental and repair assistance, none of which related to
the value of Plaintiffs’ remaining land. See Appx67. Since FEMA emergency relief
is not a “special benefit,” it cannot be offset.
The CFC conceded that FEMA emergency relief “do[es] not fall neatly within
the relative-benefit doctrine.” Appx83. But rather than follow binding precedent, the
CFC fashioned a new test, invoking “the general principle guiding the proper
60
measure of just compensation”: that there should be no “duplicate recovery.”
Appx83-84. The CFC wove its new “duplicate recovery” test from whole cloth,
citing no cases applying any similar test to government-requested offsets. See
Appx83-84 (citing River Rouge, supra 59-60). The CFC’s departure from this
Court’s precedent requires reversal.
B. The Government Failed To Carry Its Burden To Prove An Offset.
Even if “no duplicate recovery” were the correct test, reversal is required
because the government failed to prove any actual, specific duplication—a burden it
bore at trial. See CCA Assocs. v. United States, 667 F.3d 1239, 1245 (Fed. Cir. 2011).
The government made a calculated choice. It opted to present evidence
exclusively about the categories of relief FEMA paid, rather than any specific items
for which FEMA reimbursed Plaintiffs. Appx68 (citing Appx7694 (testimony of
Leistra-Jones) (categorizing FEMA aid into home repair, personal property, and
displacement)). That approach had a strategic upside for the government: it
maximized the potential offset, debiting from Plaintiffs’ damages entire categories
of emergency relief. But it also carried an inherent downside: the government failed
to show any actual “duplicate recovery.” Appx83.
Because of its litigation tactic, the government proffered zero evidence—not
receipts, not individual claims, nothing—to prove how, or even if, FEMA
emergency relief related to specific compensation claimed by Plaintiffs in this case.
61
See Appx7693-95 (expert’s methodology); Appx9810 (Expert Report of Dan
Leistra-Jones); Appx9764 (Appendix D of Expert Report).
The government’s tactic left key questions about Plaintiffs’ FEMA aid
unanswered. For example, FEMA’s “critical needs assistance” included a $500 lump
sum available to all Harvey victims to help them buy water, food, first aid,
prescriptions, infant formula, diapers, medical supplies, personal hygiene items, and
fuel. See Appx67, Appx15157-58 (cited at Appx67 n.23). Ms. Micu and Mr.
Holland, as well as hundreds of thousands of Houston-area residents, collected that
$500 check. The government included it among the categories of FEMA payments
to be offset. And the CFC offset it. How does that $500 relate to Plaintiffs’ property
damages claims in this case? Your guess is as good as theirs. Neither the government
nor the CFC ever said.
Or check the math. Mr. Holland sought about $79,087.52 in personal property
damages from the CFC. Appx64; see also Appx80 (citing Appx11301). Meanwhile,
he received FEMA aid “to help repair or replace essential items damaged by the
disaster” totaling $5,913.67. Appx9878. What, if anything, is the extent of the
overlap? Again, the government presented no evidence about this, so there is no way
to know. Even if “duplicate recovery” were the right inquiry, the government must
be held to its litigation decisions and burden of proof. The FEMA offsets must be
reversed.
62
III. The CFC Erred By Denying Class Certification Based Solely On The
Motion’s Timing.
The CFC denied class certification based only on “the timing of the[] motion”
to certify. Appx205. That conclusion stemmed from an erroneous view of the record
and the law, and so was an abuse of discretion. ATEN Int’l Co., Ltd. v. Uniclass
Tech. Co., Ltd., 932 F.3d 1371, 1373 (Fed. Cir. 2019) (a district court “necessarily
abuse[s] its discretion if it based its ruling on … a clearly erroneous assessment of
the evidence”); Personalized Media Commc’ns, LLC v. Apple Inc., 57 F.4th 1346,
1353 (Fed. Cir. 2023) (same as to “error of law”).
A. The CFC Clearly Erred In Construing The Timing Of Plaintiffs’

Class Certification Motion.
The record shows that Plaintiffs moved for class certification at the stage of
litigation indicated by the CFC.
Plaintiffs always “contend[ed]” the complaints “should be certified as class
actions.” Appx2285. Then-Chief Judge Braden, who was presiding over the master
docket, initially ordered certification motions filed by November 9, 2017; but she
eliminated those deadlines at a November 1 status conference, stating: “Whatever
the deadlines are that I sent [sic] are off the table.” Appx2192-93. She stressed this
was not preliminary: “I’m giving you an oral instruction. … You have nothing to do
until we hear” about proposals for counsel leadership. Appx2192-93. Shortly
thereafter, on November 20, 2017, the court reiterated that “class certification is
63
premature at this juncture.” Appx2285. The court then appointed counsel for
prospective class members and individual plaintiffs and set a schedule that did not
contain any deadlines regarding class certification. Appx2286.
The government moved for reconsideration, objecting that the schedule
“indefinitely delay[ed] determination of class certification.” Appx2294. Chief Judge
Braden disagreed. She stressed that the earliest appropriate time to move for class
certification may be after “a liability determination.” Appx2308. Collecting legal
authority supporting delayed class certification under certain circumstances, she
concluded that “the economic impact of the Army Corps of Engineers’ actions in
these cases requires discovery and full consideration of the legal theory that may
require a liability determination, before class action certification is considered.”
Appx2308. The reason is important. Judge Braden was clear from the inception that
she wanted to avoid endless litigation of individual claims of the kind that occurred
in United States v. Winstar Corp., 518 U.S. 839 (1996). In Winstar, the government
agreed to a bellwether process. But when the bellwethers were resolved, the
government tried “all the rest of those cases”; it “started all over again.” Appx2330-
31, Appx2334.15 Judge Braden’s instructions on class certification were part of a
case management plan designed to avoid that fate.
15
See generally Michael Grunwald, Lawsuit Surge May Cost U.S. Billions, Wash.
Post (Aug. 10, 1998), https://www.washingtonpost.com/archive/politics/1998/08/
10/lawsuit-surge-may-cost-us-billions/f4ad3fb6-68da-494c-9a2f-021e84924a22.
64
After this case was assigned to Judge Lettow, Plaintiffs renewed the question
of the timing of class certification. At a January 30, 2018 hearing, Plaintiffs’ counsel
said they planned “to move for a class certification concurrent with this liability
phase,” and “ask[ed] the Court for a schedule that allows [class certification] to
happen concurrent with the existing schedule.” Appx2205-06. Judge Lettow, too,
instructed Plaintiffs to wait, explaining that, although “liability and jurisdiction
almost are hand in glove, … the Court would strongly prefer that we focus on
jurisdiction first, even though a lot of that would carry over to liability,” because
“[t]hat might affect your thinking on class certification.” Appx2206. Judge Lettow
also noted the “test plaintiffs as a bellwether situation … might evolve to something
that could turn into a representative of a class or subclass.” Appx2212. Plaintiffs
acquiesced, agreeing to move for class certification “when we have gone past the
jurisdictional … step.” Appx2207.
But the CFC did not “go[] past the jurisdictional” step until after the court
rendered a decision at the conclusion of the merits phase. Appx3, Appx1016.
Plaintiffs thereafter moved to certify the class at the stage instructed by the CFC—
after the court had determined its jurisdiction and before the compensation phase.
See Appx200-02.
Based on the court’s statements, Plaintiffs’ motion was not untimely. In
holding otherwise, the CFC ignored the record, stating there was “no basis … to
65
credit plaintiffs’ argument that the court instructed or asked them to delay their class
certification motion.” Appx209. That finding, “unsupported” by the “full record,”
was clearly erroneous, as the litigation history shows. See Rolls-Royce Ltd. v. GTE
Valeron Corp., 800 F.2d 1101, 1110 (Fed. Cir. 1986). The CFC also faulted
Plaintiffs for missing Chief Judge Braden’s initial certification date. Appx201,
Appx209. But, as recounted, Chief Judge Braden lifted the initial deadline eight days
in advance of the deadline, at the parties’ November 1 status conference. Compare
Appx2192-93, with Appx201. It was error to deny class certification based on this
misreading of the record.
B. There Is No Bar To The Timing Of Plaintiffs’ Class Certification

Motion.
The CFC also misapprehended the relevant law.
First, the CFC disregarded Plaintiffs’ prerogative to rely on the court’s
scheduling statements in determining when to file their certification motion. See,
e.g., Little v. Wash. Metro. Area Transit Auth., 100 F. Supp. 3d 1, 7-8 (D.D.C. 2015)
(timing was reasonable because “the Court sidetracked the normal orderly
proceeding of this case”); Brewer v. Acct. Discovery Sys. LLC, No. 18-cv-262, 2018
WL 11476149, at *1 (D. Utah Oct. 24, 2018) (motion not untimely because party
“reasonably believed the court’s order … contemplated a longer time for filing the
motion”).
66
Second, contra the CFC’s suggestion, there is no bar to post-liability class
certification here. Equitable considerations justify addressing class certification even
after liability has been determined. See, e.g., Postow v. OBA Fed. Sav. & Loan Ass’n,
627 F.2d 1370, 1383-84 (D.C. Cir. 1980); Schweizer v. Trans Union Corp., 136 F.3d
233, 239 (2d Cir. 1998).
To be sure, courts avoid post-liability class certification where possible. Cf.
Appx203 (citing, e.g., In re Citizens Bank, N.A., 15 F.4th 607, 618 n.11 (3d Cir.
2021)). However, this case does not involve the types of factors that typically raise
concerns in post-liability certification, as Chief Judge Braden recognized when she
postponed class certification until after liability. See Appx2307-08 (collecting cases
and treatises). For one, there is no risk that the parties “may have tried” the merits
“differently had they been aware that a class judgment was at stake.” Wright &
Miller § 1785.3; see Paxton v. Union Nat’l Bank, 688 F.2d 552, 558-59 (8th Cir.
1982). Although pressed repeatedly, the government never identified a single
defense or argument it would have made at liability had a class been certified. See
Appx2573, Appx2595, Appx 2631, Appx 2637. For another, any concerns about
strategic intervention are allayed because the pool of potential class members is
circumscribed and known. Appx211-12. Here, as in Winstar, the legal claims are
functionally identical, the plaintiffs are known and finite, and the costs and
administrative burdens of failing to certify a class are astronomical. Finally, courts
67
outside the Federal Circuit have recognized that timing concerns are different in the
context of Federal Rule of Civil Procedure 23(b)(2) versus 23(b)(3). See 3 William
B. Rubenstein, Newberg and Rubenstein on Class Actions § 7:11, Westlaw (6th ed.
database updated June 2023); Paxton, 688 F.2d at 558-59. It remains open to this
Court to clarify how Rule 23 of the Court of Federal Claims, which eliminates the
distinction between (b)(2) and (b)(3) classes, fits in.
The CFC’s errors regarding the timing of Plaintiffs’ motion were, by the
court’s own lights, dispositive of class certification. The denial cannot stand.
CONCLUSION
The CFC’s decision should be upheld as to the issues on appeal and reversed
as to the cross-appeal.
Dated: September 22, 2023 Respectfully submitted,

Daniel H. Charest Ian Heath Gershengorn
Emery Lawrence Vincent, Jr. Elizabeth B. Deutsch
BURNS CHAREST LLP Victoria Hall-Palerm
900 Jackson Street, Suite 500 Leslie K. Bruce
Dallas, TX 75202 JENNER & BLOCK LLP
(469) 904-4550 1099 New York Ave. NW, Suite 900
[email protected] Washington, DC 20001
(202) 639-6869
Charles Irvine [email protected]
IRVINE & CONNER PLLC
4709 Austin Street
Houston, TX 77004
(713) 533-1704
[email protected]
68
CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2023, I caused the foregoing brief
to be electronically filed with the Clerk of the Court for the United States Court
of Appeals for the Federal Circuit by using the CM/ECF system, which caused
a copy of the foregoing to be delivered by electronic means to counsel of record.

JENNER & BLOCK LLP
(202) 639-6869
[email protected]
September 22, 2023

CERTIFICATE OF COMPLIANCE
I hereby certify that:
1. This Brief complies with the type-volume limitation of Fed. Cir. R.
28.1(b)(2) because this Brief contains 15,868 words, excluding the parts of the Brief
exempted by Fed. R. App. P. 32(f) and Fed. Cir. R. 32(b).
2. This Brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
Brief has been prepared in a proportionately spaced typeface using Microsoft Office
Word 2013 in Times New Roman, Font Size 14.

JENNER & BLOCK LLP
(202) 639-6869
[email protected]
September 22, 2023

ADDENDUM
Orders and Opinions

Class Certification Opinion and Order, ECF 417 (Dec. 15, 2021) ............... Appx200
Order on Plaintiffs’ Motion to Reconsider Denial of Class Certification,

ECF 419 (Dec. 17, 2021) .............................................................................. Appx213
Order on Remaining Master Complaint Plaintiffs’ Motion for Class

Certification, ECF 437 (Feb. 10, 2022) ........................................................ Appx214
Case 1:17-cv-09001-CFL
Case: 23-1363 Document
Document: 32 417 Filed
Page: 85 12/15/21 Page 1 of 13
Filed: 09/22/2023
In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L
(Filed: December 15, 2021)
IN RE UPSTREAM ADDICKS AND Motion to certify class; timeliness; Rule 23

BARKER (TEXAS) FLOOD- criteria
CONTROL RESERVOIRS
THIS DOCUMENT APPLIES TO:
ALL UPSTREAM CASES
Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles
Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart
Boundas Easterby, LLP, Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs.
Kristine S. Tardiff, Trial Attorney, Environment & Natural Resources Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Todd Kim, Assistant Attorney General, and Laura W. Duncan, Frances B. Morris, and Gregory
M. Cumming, Trial Attorneys, Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.
Vuk S. Vujasinovic, VB Attorneys, PLLC, Houston, Texas, filed a brief for the Banker
plaintiffs. With him on the brief were Brian Beckom and Job Tennant, VB Attorneys, PLLC,
Houston, Texas.
Zheng Luo, Katy, Texas, filed a brief pro se.
Ligang Lei, Katy, Texas, filed a brief pro se.
OPINION AND ORDER
LETTOW, Senior Judge.
Before the court is plaintiffs’ motion to certify a class limited to liability issues pursuant
to Rule 23 of the Rules of the Court of Federal Claims (“RCFC”) in this Fifth Amendment taking
case. Plaintiffs—property owners upstream of the Addicks and Barker Dams in the Houston,
Texas area that experienced flooding during Tropical Storm Harvey—argue that the bellwether
approach to case management employed throughout the past years of litigation is inferior to class
certification. This motion arises after the conclusion of the liability phase of the trial of
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bellwether plaintiffs using the bellwether test-case approach. See generally Pls.’ Mot. for Class
Certification (“Pls.’ Mot.”), ECF No. 397; Pls.’ Suppl. Br. (“Pls.’ Suppl.”), ECF No. 404; and
Pls.’ Reply, ECF No. 408. The government counters that the motion for class certification
comes too late and that plaintiffs should otherwise be denied certification on the merits. See
Def.’s Opp’n to Pls.’ Mot. for Class Certification (“Def.’s Opp’n”), ECF No. 405. Plaintiffs’
motion is DENIED both because of the timing of their request and their failure to satisfy the
criteria of RCFC 23.
BACKGROUND
These cases arise from a flooding event:
After making landfall in August 2017, Tropical Storm Harvey (“Harvey”)

doused Houston with an average of 33.7 inches of rain over a four-day period.
Many properties, including over 150,000 homes, flooded during the storm.
Those affected included private property owners within the Addicks and Barker
Reservoirs, west of Houston, upstream of the federally designed, built, and
maintained Addicks and Barker Dams. During Harvey, the Addicks and Barker
Dams collected storm water in their respective reservoirs [extending beyond
government-owned land,] causing [private] properties [upstream but] within the
reservoir to flood from the impounded water.
In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219,
227 (2019).
“The first complaint relating to Harvey and the Addicks and Barker Dams was filed on
September 5, 2017. Hundreds of such cases followed.” In re Upstream Addicks & Barker, 146
Fed. Cl. at 228 (internal citation omitted). Initially, Chief Judge Braden of the court ordered
those plaintiffs who sought class certification to move for certification by November 9, 2017.
See Y and J Properties, Ltd. v. United States, 134 Fed. Cl. 465 (2017). On November 20, 2017,
however, the Chief Judge relieved plaintiffs of the class certification deadline. See Order of
Nov. 20, 2017 at 2, No. 17-3000, ECF No. 68. Instead, after soliciting case management
suggestions from plaintiffs and defendant, “the Chief Judge . . . issued Management Order No. 1,
consolidating these cases, and all related later-filed cases, within one master docket. The Chief
Judge then bifurcated the issues of liability and damages, initially setting a schedule to deal with
liability. Subsequently, [on December 5, 2017,] the Chief Judge divided the Master Docket into
two sub-master dockets—one for downstream properties and, pertinent here, one for upstream
properties.” In re Upstream Addicks & Barker, 146 Fed. Cl. at 228 (internal citations omitted).
In the upstream cases, the court applied the principles of multi-district litigation under 28
U.S.C. § 1407 and conducted pretrial proceedings under the guidance of 28 U.S.C. § 1407(b).
“In the spring of 2018, thirteen plaintiff properties were designated to serve as bellwethers for
the [upstream] cases.” In re Upstream Addicks & Barker, 146 Fed. Cl. at 228. “A ten-day trial
was held in Houston, Texas, commencing on May 6, 2019, regarding the liability of the United
States for the thirteen test properties.” Id. In December 2019, “the court [found] the government
to be liable for a taking of a flowage easement on the [bellwether] properties.” Id.
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Nearly two years later, as the parties engaged in discovery in preparation for the just
compensation phase of the trial of the claims of bellwether plaintiffs, plaintiffs moved for class
certification on September 24, 2021. See Pls.’ Mot. Following a supplemental briefing order,
the matter is fully briefed. The court received additional briefs from one of the bellwether
property owners raising questions about, but otherwise consistent with, certification, ECF No.
406, and from a pro se plaintiff, Zheng Luo, opposing certification on adequacy of counsel
grounds, ECF No. 412. See also Pls.’ Reply to Pro Se Opp’n, ECF No. 413; Def.s’ Reply to Pro
Se Opp’n, ECF No. 414. Another pro se plaintiff, Ligang Lei, filed a brief supporting
certification, ECF No. 416. A hearing was held on November 29, 2021.
STANDARD FOR DECISION
Class actions are governed by RCFC 23. 1 To merit class certification,
a putative class representative must demonstrate: (i) numerosity—that the

proposed class is so large that joinder is impracticable; (ii) commonality—that
there are common questions of law or fact that predominate over questions
affecting individual prospective class members and that the government has
treated the prospective class members similarly; (iii) typicality—that his or her
claims are typical of the proposed class; (iv) adequacy—that he or she will fairly
represent the proposed class; and (v) superiority—that a class action is the
fairest and most efficient method of resolving the suit.
1
Rule 23(a) and (b), in whole, require the following:
(a) Prerequisites. One or more members of a class may sue as

representative parties on behalf of all members only if: (1) the class is so numerous
that joinder of all members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. A class action may be maintained if

RCFC 23(a) is satisfied and if: (1) [not used]; (2) the United States has acted or
refused to act on grounds generally applicable to the class; and (3) the court finds
that the questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include: (A) the class members’ interests in
individually controlling the prosecution of separate actions; (B) the extent and
nature of any litigation concerning the controversy already begun by class
members; (C) [not used]; and (D) the likely difficulties in managing a class action.
RCFC 23(a), (b) (brackets in original).
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Gross v. United States, 106 Fed. Cl. 369, 373 (2012) (citing Barnes v. United States, 68 Fed. Cl.
492, 494 (2005)). These requirements are conjunctive, id. (quoting Barnes, 68 Fed. Cl. at 494),
and require a showing by a preponderance of the evidence, id. (citing Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012) (additional citations omitted)).
ANALYSIS
Plaintiffs’ class certification motion is limited to liability, alone. Pls.’ Mot. at 1. 2 The
motion raises the threshold question whether it is appropriate to move for certification after
having succeeded on the merits at the liability phase of the trial. See RCFC 23(c)(1)(A) (“At an
early practicable time after a person sues as a class representative, the court must determine by
order whether to certify the action as a class action.” (emphasis added)). While the court
answers that question in the negative, it concludes that a complete analysis of plaintiffs’ motion
under RCFC 23 is nonetheless necessary. See McCarthy v. Kleindienst, 741 F.2d 1406, 1412
(D.C. Cir. 1984) (“But we need not, and do not, decide whether these [timeliness] considerations
alone were sufficient to support the [trial court’s] denial of certification, inasmuch as the court
. . . also grounded its decision upon its view that plaintiffs’ claims were not suitable for
resolution on a classwide basis.”).
A. Class Certification After Trial on Liability
The timing of a class certification motion by itself is not often an independent ground to
deny class certification, though it is relevant in the context of the multi-prong analysis required
by Rule 23. See Trevizo v. Adams, 455 F.3d 1155, 1161 (10th Cir. 2006) (affirming that the fact
that the “lawsuit had been pending for five years before the plaintiffs moved for class
certification” did “not create an independent basis for denying a party’s motion” to certify a class
under Rule 23 of the Federal Rules of Civil Procedure). 3 “Rather, the delay [in moving for class
certification] will be evaluated in light of the circumstances of the case and certification will be
denied only when the late timing of the determination may cause prejudice or unduly complicate
the case.” 7AA Wright, Miller & Kane, Federal Practice and Procedure: Civil, § 1785.3 (3rd
ed., 2008, updated 2021) (collecting cases).
Seven U.S. Courts of Appeals have treated trial as a bright line after which a class
certification motion is presumptively inappropriate, see In re Citizens Bank, N.A., 15 F.4th 607,
618 n.11 (3d Cir. 2021) (collecting cases from the 1st, 2d, 4th, 7th, 8th, 10th, and 11th Circuits),
while some have tolerated it so long as the defendant consents, id. at 618-19 n.12 (collecting
cases from the 3d, 5th, 9th, and D.C. circuits). The U.S. Court of Appeals for the Federal Circuit
does not appear to have squarely addressed the issue, although it acknowledges that some merits
decisions may precede class certification. See, e.g., Charleston Area Med. Ctr., Inc. v. United
States, 940 F.3d 1362, 1372 (Fed. Cir. 2019) (holding that a trial court commits no error when it
2
Plaintiffs categorically and explicitly state, “[c]ertification is sought only as to the
question of liability.” Pls.’ Mot. at 1.
3
Inasmuch as RCFC 23 mirrors Fed. R. Civ. P. 23, the rules should be interpreted in pari
materia.
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considers the merits of a motion to dismiss or a motion for summary judgment that moots a
motion for class certification under RCFC 23); Romero v. Am. Postal Workers Union, 178 F.3d
1310, 1998 WL 846826, at *2-3 (Fed. Cir. Dec. 4, 1998) (holding that the trial court committed
no error when it considered merits of remand before class certification because the outcome of
the merits analysis undermined the commonality prong of Fed. R. Civ. P. 23). In one instance,
this court’s predecessor dealt with a similar question when it rejected plaintiffs’ request to defer
class certification until after the final judgment on the merits. See Saunooke v. United States, 8
Cl. Ct. 327, 331 n.4 (1985) (“Case law interpreting this sentence [(from Rule 23 that class
certification should be decided ‘as soon as practicable’)] dictates the well-settled proposition that
class certification should precede any determination on the merits of a case.” (citing Otto v.
Variable Annuity Life Ins. Co., 98 F.R.D. 747 (N.D. Ill.1983), and Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 177–78 (1974)); see also Wal-Mart Stores, Inc. v. Duke, 564 U.S. 338, 351-52
(2011) (“The necessity of touching aspects of the merits in order to resolve preliminary matters,
e.g., jurisdiction and venue, is a familiar feature of litigation.” (citing Szabo v. Bridgeport
Machs., Inc., 249 F.3d 672, 676-77 (7th Cir. 2001)).
Plaintiffs contend that their class certification motion is “neither too early nor too late”
because “the parties have appeared to treat the proceedings as being adjudicated on behalf of a
class,” Pls.’ Suppl. at 12 (quoting Wright, Miller & Kane § 1785.3), and because the class
complaint was chosen as the master complaint, id. The remainder of plaintiffs’ timeliness
arguments focus on the problems that would have followed if they had chosen to delay their
motion until even later, as well as the benefits that notice to the proposed class could provide.
Id. at 13-15. The government responds that the appropriate time to decide class certification was
during case management discussions with the Chief Judge. Def.’s Opp’n at 9. It continues that
permitting post-trial class certification would enable “one-way intervention,” a discouraged
practice. Id. at 10-11 (citing Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547 (1974)). Finally,
the government argues that plaintiffs’ motion is “a de facto attempt to circumvent the
acknowledged rule that ‘nonmutual offensive collateral estoppel simply does not apply against
the government in such a way as to preclude relitigation of issues.’” Id. at 14 (quoting United
States v. Mendoza, 464 U.S. 154, 162 (1984)). In their reply, plaintiffs contend that their motion
is timely because the first Harvey-related complaint filed was styled as a class action, Pls.’ Reply
at 1, the parties recognized the potential for the bellwether approach to evolve into a class action,
id. at 2-3, commonality prevails over any collateral estoppel defense that the government might
raise, id. at 4, discovery was not limited exclusively to bellwether issues, id. at 4-5, and the
timing of class certification is ultimately subject to the court’s discretion, id. at 5.
The court concludes that a trial on the merits of liability is a line after which moving for
class certification is presumptively inappropriate. The prior version of Fed. R. Civ. P. 23
permitted potential plaintiffs to wait to opt into a class until after a favorable decision on the
merits. That outcome was criticized, and the rule was revised to eliminate that result. Although
RCFC 23 differs in some respects from Fed. R. Civ. P. 23, these circumstances counsel against
granting class certification at this time:
This situation—the potential for so-called ‘one-way intervention’—aroused

considerable criticism [of the pre-1966 Fed. R. Civ. P. 23] upon the ground that it
was unfair to allow members of a class to benefit from a favorable judgment
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without subjecting themselves to the binding effect of an unfavorable one. The

1966 amendments [to Fed. R. Civ. P. 23 (upon which RCFC 23 is modeled)] were
designed, in part, specifically to mend this perceived defect in the former Rule and
to assure that members of the class would be identified before trial on the merits
and would be bound by all subsequent orders and judgments.
Am. Pipe & Const. Co., 414 U.S. at 547 (footnotes omitted)). Moreover, the same structure
exists in RCFC 23(c) as in Fed. R. Civ. P. 23(c) that elicited Justice (then Judge) Stevens’
observation that “the text [of Fed. R. Civ. P. 23] certainly implies, even if it does not state
expressly, that such a decision [(to certify class)] should be made in advance of the ruling on the
merits.” Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir. 1975).
While the “rigorous analysis” necessary to decide a class certification motion “will entail
some overlap with the merits of the plaintiff’s underlying claim,” Wal-Mart, 564 U.S. at 351, this
does not open the door to decide the merits of the case before deciding class certification, see
Amgen Inc. v. Connecticut Ret. Plans and Tr. Funds, 568 U.S. 455, 466 (2013) (“Merits
questions may be considered to the extent—but only to the extent—that they are relevant to
determining whether the Rule 23 prerequisites for class certification are satisfied.” (citing Wal-
Mart, 564 U.S. at 351 n.6)). Here, the liability phase of trial has been completed, which well
exceeds “some overlap,” id., and instead presents the kind of one-way intervention that the
Supreme Court described as “spurious,” Am. Pipe & Const., 414 U.S. at 545. The court
therefore concludes that the late timing of plaintiffs’ class certification motion counsels against
certifying a class at this stage of the litigation.
B. Rule 23’s Numerosity, Commonality, Typicality, Adequacy, and Superiority Requirements
The timing of plaintiffs’ class certification motion also bears heavily on the court’s
analysis of RCFC 23’s multiple requirements, even if the court were to not treat it as an
independent ground to deny certification. While plaintiffs succeed at showing numerosity,
commonality, and typicality, they fail to show how the timing of their motion would not
undermine the adequacy of representation and superiority of class certification at this late stage.
1. Numerosity
The first prerequisite of class certification is whether “the class is so numerous that
joinder of all members is impracticable.” RCFC 23(a)(1). Numerosity requires that joinder be
impracticable—“extremely difficult or inconvenient,” Jaynes v. United States, 69 Fed. Cl. 450,
453-54 (2006) (quoting 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil, §
1762 (3d ed., 2005))—not “impossible,” id. (quoting Robidoux v. Celani, 987 F.2d 931, 935 (2d
Cir. 1993)). “There is no set number of potential class members that must exist before a court
can certify a class. Instead, a court must examine the facts of the case to determine whether the
numerosity requirement has been satisfied.” Gross, 106 Fed. Cl. at 374 (citing General Tel. Co.
of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980)). Relevant considerations include “the
number of potential class members, the geographic dispersal of the potential class members, and
the size of each potential class member’s claim.” Id. (citing King v. United States, 84 Fed. Cl.
120, 123-24 (2008) and Jaynes, 69 Fed. Cl. at 454). “Joinder is considered more practicable
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when all members of the class are from the same geographic area” and “are easily identifiable.”
Jaynes, 69 Fed. Cl. at 454 (internal quotations omitted) (quoting Andrews v. Bechtel Power
Corp., 780 F.2d 124, 131-132 (1st Cir. 1985)).
Plaintiffs argue that numbers alone resolve the numerosity requirement in their favor.
Pls.’ Mot. at 9 (citing Land Grantors in Henderson, Union and Webster Counties, Ky. v. United
States, 71 Fed. Cl. 614, 622 (2006) (“This fact [that the potential class included over 1,000
members] alone supports the numerosity requirement.”)). Based on one of plaintiffs’ expert
reports, plaintiffs assert that the class includes over 10,000 potential members. Id. at 9 n.19
(explaining that Philip Bedient’s expert report identified over 15,000 flooded upstream properties
based on U.S. Army Corps of Engineer records). The government counters that plaintiffs fail to
prove that so many putative class members exist. Def.’s Opp’n at 17. Nevertheless, defendant
continues, other factors outweigh the number of potential class members. Id. at 18-19. For
example, the government argues that joinder is practicable because approximately 2,000
upstream plaintiffs have already filed short-form complaints and all potential class members are
in close geographic proximity to one another. Id. Plaintiffs reply that the fact that thousands
have already filed short-form complaints does not show that joinder would prove practical for all
potential plaintiffs and that many thousands of potential plaintiffs still have not filed. Pls.’ Reply
at 7-8.
The relevant inquiry is not merely whether a potential class involves a large number of
putative members. See Jaynes, 69 Fed. Cl. at 454 (“While the number of class members is
central to the Rule 23(a)(1) inquiry, number alone is not determinative.”). Rather, the court must
determine whether “the specific facts of [this] case,” Gen. Tel. Co., 446 U.S. at 330, make
joinder extremely difficult or inconvenient. The court observes that many of the relevant factors
weigh in favor of joinder, i.e., most of the putative class members are located within a close
geographic proximity to one another and can be easily identified via property records. See
Jaynes, 69 Fed. Cl. at 454-55 (weighing in favor of joinder that “at least 81 percent of the class
members reside within the same state” and that potential plaintiffs’ identities and contact
information were readily available). The sheer number of putative class members is instructive.
The flooding of the Addicks and Barker Dams implicated many thousands of properties. See In
re Upstream Addicks & Barker, 146 Fed. Cl. at 228. This case’s docket demonstrates that
thousands of upstream property owners have already been identified and filed short-from
complaints, a fact that the government’s arguments acknowledge. The court therefore concludes
that plaintiffs have carried their burden and have shown that the potential class members are so
numerous as to render joinder impracticable.
2. Commonality
The second prerequisite of class certification is comprised of three related elements:

whether “there are questions of law or fact common to the class,” RCFC 23(a)(2); whether “the
United States has acted or refused to act on grounds generally applicable to the class,” RCFC
23(b)(2); and whether “questions of law or fact common to class members predominate over any
questions affecting only individual members,” RCFC 23(b)(3). The commonality requirement
entails “some overlap” with the merits, Wal-Mart, 564 U.S. at 351, inasmuch as it requires the
court to “look beyond the pleadings . . . and seek to develop an understanding of the relevant
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claims, defenses, facts and substantive law,” Gross, 106 Fed. Cl. at 377-78 (quoting Barnes, 68
Fed. Cl. at 494).
“Individual class members need not be identically situated to warrant a finding of

commonality; ‘rather, to meet RCFC 23(a)(2), the questions underlying the claims of the class
merely must share essential characteristics, so that their resolution will advance the overall
case.’” Geneva Rock Prods., Inc. v. United States, 100 Fed. Cl. 778, 788 (2011) (brackets
omitted) (quoting Barnes, 68 Fed. Cl. at 496). “The threshold for proving commonality ‘is not
high.’” Haggart v. United States, 89 Fed. Cl. 523-33, 532 (2009) (quoting King, 84 Fed. Cl. at
125). Plaintiffs argue that they satisfy this requirement because each putative class member
raises the same facts and legal claim, i.e., that the government intentionally used potential class
members’ property to store detained floodwaters from the Addicks and Barker Dams and that
these actions constituted a taking. Pls.’ Mot. at 10-11. The government responds that the
individual factual nature of each putative class member’s property, i.e., “extent of flooding,”
property elevation, property type, and “ownership interest,” undermine commonality. Def.’s
Opp’n at 20. The court concludes that although plaintiffs’ claims are not identical, they share the
essential elements of a taking caused by the government’s operation of the Addicks and Barker
Dams.
The government acts on generally applicable grounds when its conduct is “system-wide”
or “affects all of the putative class members.” Barnes, 68 Fed. Cl. at 496 (quoting Armstrong v.
Davis, 275 F.3d 849, 868 (9th Cir. 2001)). Plaintiffs argue that the government’s operation of
the Addicks and Barker Dams during Harvey affected all putative class members who
experienced flooding, akin to class members in rails-to-trails takings cases where the
government’s decision to decommission a railway affects all those with interest in the underlying
railroad right-of-way. See Pls.’ Mot. at 11-12. The government appears to contend that the
government’s conduct could not be generally applicable to all putative class members because
the proposed class definition is so vague as to encompass property owners who experienced no
flooding. See Def.’s Opp’n at 20-22. The court determines that, inasmuch as putative class
members experienced flooding, the government’s decision to handle Harvey floodwaters at the
Addicks and Barker Dams did affect all potential plaintiffs.
Additionally, “[c]lass-wide questions predominate over issues specific to individual

members ‘if resolution of some of the legal or factual questions that qualify each class member’s
case as a genuine controversy can be achieved through generalized proof, and if these particular
issues are more substantial than the issues subject only to individualized proof.’” Geneva Rock,
100 Fed. Cl. at 789 (quoting Barnes, 68 Fed. Cl. at 496). “This predominance inquiry ‘tests
whether proposed classes are sufficiently cohesive to warrant adjudication by representation’ and
‘is far more demanding’ than the initial common-issue inquiry.” Gross, 106 Fed. Cl. at 379
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). Plaintiffs argue that
the only issue to resolve other than the government’s operation of the Addicks and Barker Dams
is property ownership, see Pls.’ Mot. at 12-13, and that the nature and extent of damages are
irrelevant to this question because the putative class would only cover liability issues, id. at 13
n.21. The government contends that the damages issues that plaintiffs would put aside are in fact
critical to the analysis and prevent common issues from predominating over individual issues.
See Def.’s Opp’n at 22-23. Generally, if governmental actions “effect a taking, then the putative
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class members will be owed just compensation regardless of the specific property interest they
held in the land.” Geneva Rock, 100 Fed. Cl. at 789 (citing United States v. General Motors
Corp., 323 U.S. 373, 382 (1945)). Therefore, common issues of the government’s liability
predominate over individual issues of the nature and extent of compensation putative class
members would be owed.
The court determines that plaintiffs have satisfied the commonality requirement because
they share common questions of law and fact concerning generally applicable government
conduct—namely, the common claim that the operation of the Addicks and Barker Dams
resulted in a taking—and those liability questions predominate over individual compensation
questions. The circumstance that plaintiffs focus on certifying a class for purposes only of
liability nonetheless limits the significance of this determination.
3. Typicality
The third prerequisite of class certification is whether “the claims or defenses of the
representative parties are typical of the claims or defenses of the class.” RCFC 23(a)(3).
Typicality, like commonality, is a “guidepost[] for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff’s
claim and the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157
n.13 (1982). “Typicality is demonstrated ‘when each class member’s claim arises from the same
course of events, and each class member makes similar legal arguments to prove the defendant’s
liability.’” Gross, 106 Fed. Cl. at 381 (quoting Barnes, 68 Fed. Cl. at 498 (internal quotation
marks and additional citation omitted)).
Plaintiffs assert that their arguments and success at the liability phase of the trial
demonstrate that they each allege the same government conduct, state the same claim, and seek
the same liability determination. See Pls.’ Mot. at 13-14. The government counters that the
bellwether plaintiffs’ success during the liability phase renders them atypical of all the remaining
putative class members who must still prove government liability, and once bellwethers receive a
just compensation ruling at the imminent next phase of the trial, they will no longer have any
interest in pursuing litigation on behalf of the class. See Def.’s Opp’n at 24-25. Plaintiffs argue
that “exact alignment is not required between class representatives and other class members”
because “the claims of the class representatives and other class members [do not] implicate a
significantly different set of concerns.” Pls.’ Reply at 11 (emphasis omitted) (quoting Ramona
Two Shields v. United States, 820 F.3d 1324, 1331 (Fed. Cir. 2016)).
Concerning liability, all putative class members would rely upon the same facts and legal
arguments, i.e., that the Harvey floodwaters retained at the Addicks and Barker Dams
overflowed onto their property and that this constituted a taking. To the extent that typicality
overlaps with adequacy, the government’s argument that bellwether plaintiffs are no longer
typical of the proposed class is not persuasive because bellwether plaintiffs, like putative class
members, must continue to litigate the matter fully to arrive at a just compensation ruling. The
court therefore holds that plaintiffs have carried their burden as to typicality.
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4. Adequacy
The fourth prerequisite of class certification is whether “representative parties will fairly
and adequately protect the interests of the class.” RCFC 23(a)(4). Adequacy asks both whether
proposed class counsel is qualified and capable of representing the class and whether conflicts
exist between the putative class representatives and the remaining class members. See Geneva
Rock, 100 Fed. Cl. at 790 (citing Haggart, 89 Fed. Cl. at 534, and Barnes, 68 Fed. Cl. at 499).
Plaintiffs argue that there is no conflict between putative class representatives and class
members because they state the same claim for relief due to the government’s operation of the
Addicks and Barker Dams. See Pls.’ Mot. at 15. They aver, moreover, that proposed class
counsel is qualified and capable, relying on each proposed attorney’s extensive curricula vitae
and experience. Id. at 15-18. The government contends that the bellwether plaintiffs and
putative class members would have antagonistic interests because the bellwethers would have no
incentive to relitigate liability on the class members’ behalf and because the government would
raise collateral estoppel against the bellwethers at the subsequent class-wide liability trial, which
the class members would have no incentive to oppose. See Def.’s Opp’n at 25-26. Defendant
also argues that plaintiffs are not qualified to adequately represent the class because of the
lateness of the class certification motion. Id. at 26-27.
The court considers timing to be critical. “[T]he named plaintiffs’ failure to protect the
interests of class members by moving for certification [prior to trial on liability] surely bears
strongly on the adequacy of the representation that those class members might expect to
receive.” E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). It has been
four years since these claims were first filed, and an initial deadline to move for class
certification came and went. Moreover, it has been nearly two years since the bellwethers
prevailed at the liability trial.
Plaintiffs argued at the hearing before the court that the timing of their class certification
motion was in response to suggestions from the court that doing so before now was premature.
Hr’g Tr. 12:17 to 13:1 (Nov. 29, 2021) (referring to a hearing on January 30, 2018 when
supposedly “the [c]ourt deferred class treatment and told us to wait”); 4 Hr’g Tr. 37:10 to 13
(“[W]hen I asked the first time about making this motion, and I think a couple times in the
interim, the [c]ourt sort of asked me to wait, and, therefore, I waited.”). 5 Contrary to plaintiffs’
representation, however, the court sees no basis in the record to credit plaintiffs’ arguments that
the court instructed or asked them to delay their class certification motion. Instead, co-lead
counsel indicated at a hearing on January 30, 2018 that he intended to wait until the parties had
resolved jurisdictional issues and then move for class certification concurrently with the liability
4
The date will be omitted from further citations to the transcript of the hearing held on
November 29, 2021.
5
Plaintiffs also argued that timing should have no bearing on the court’s decision because
the court has discretion “wholly and completely” to grant class certification, Hr’g Tr. 37:17 to
20, and because there would be no prejudice to the government by certifying class at this late
time, Hr’g Tr. 39:7 to 10.
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phase of trial. Hr’g Tr. 11:5 to 10 (Jan. 30, 2018) (“[T]hen we move into the merits briefing and
all that—that sort of thing, and it’s in that phase, during the merits briefing, is when we think we
would also be briefing the class . . . certification.”); Hr’g Tr. 11:20 to 12:2 (Jan. 30, 2018)
(“[W]hen we have gone past the jurisdictional sort of step there, that’s when we would anticipate
raising class, . . . getting a ruling on liability and a ruling on class, hopefully concurrently.”).
The judge did commend plaintiffs for this plan. Hr’g Tr. 11:11 (Jan. 30, 2018) (“That makes
sense.”); Hr’g Tr. 12:4 to 6 (Jan. 30, 2018) (“That is a remarkably ambitious but commendable
goal, and we hope we can achieve that result in terms of timing.”).
“RCFC 23 is ultimately a procedural technique aimed at improving ‘judicial economy

and efficiency.’” Geneva Rock, 100 Fed. Cl. at 782 (quoting Singleton v. United States, 92 Fed.
Cl. 78, 82 (2010) (additional citation omitted)). Lengthy delays before moving to certify the
class, especially now that plaintiffs have succeeded at a merits phase of the trial, are
incompatible with RCFC 23’s purpose. Plaintiffs’ timing thus calls into question the adequacy
of the proposed representation. Plaintiffs have failed to advance any credible argument for why
they delayed. The court concludes, therefore, that plaintiffs have failed to carry their burden to
prove that they are qualified and capable of adequately representing the proposed class.
5. Superiority
The final requirement of class certification is whether “a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3).
Putative class members recount the superiority of class actions insofar as they establish that it
“would achieve economies of time, effort, and expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results.” Amchem Prods., 521 U.S. at 615 (ellipses omitted) (quoting Fed. R. Civ. P.
23, Advisory Committee Note (1966 Amendment)). “Essentially, under this prong of the
analysis, the court is obliged to conduct a cost/benefit analysis, weighing any potential problems
with the manageability or fairness of a class action against the benefits to the system and the
individual members likely to be derived from maintaining such an action.” Barnes, 68 Fed. Cl.
at 499 (citing Eisen, 417 U.S. at 163-64 (additional citation omitted)).
Plaintiffs argue that class action is the superior approach because “an issue class would
provide all [c]lass [m]embers the opportunity to avail themselves of the enormous amount of
work performed during the discovery, motions practice, and trial over the past four years.” Pls.’
Suppl. at 4; see also Hr’g Tr. 38:15 to 17 (“[T]hey would be opting into a win rather than . . .
deciding to go and fight the same fight again.”). They continue that class action is superior to
thousands of individual claims because “that process would not only waste money, time, and
judicial resources, but may also lead to conflicting results.” Pls.’ Suppl. at 5. Plaintiffs assert
that the current bellwether approach is inferior to class action because collateral estoppel cannot
be used offensively against the government, rendering the bellwethers’ success on the merits
unavailable for the non-bellwether plaintiffs. Id. at 6-7. They opine moreover that earlier cases
from this court that used the bellwether approach cannot prove that that approach is feasible
because the facts of those prior cases are too different from the present case. Id. at 10-11. They
also argue that the structure of this court prevents it from relying on an adapted multidistrict
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litigation approach because there would be no transferor court to which the court could refer
pending claims at the conclusion of the test case. Id. at 8-9.
The government contends that the current bellwether approach remains the superior
approach because its application over the years of litigation proves its effectiveness. Def.’s
Opp’n at 28. Defendant avers that resolution of the liability phase of the trial has deprived class
certification of potential “economies of time, effort, or expense.” Id. at 28-29 (quoting Turner v.
United States, 115 Fed. Cl. 614, 618 (2014)). It claims that certifying a class at this stage of the
litigation would “result in greater inefficiencies and delays . . ., create case management
difficulties, and inject uncertainty shortly before [the just compensation phase of] trial.” Id. at
29. For example, the government cites the potential need for additional briefing, id. at 30, the
administrative complexity of presenting potential claimants with either the existing short-form
complaint or the proposed class opt-in, id. at 31, the addition of an opt-in deadline on top of the
existing statute of limitations deadline, id. at 32, and the potential need to certify an interlocutory
appeal to permit appellate review of any class certification decision, id. at 32-33. Finally,
defendant argues that class certification would necessarily result in a separate class-wide liability
trial, which would be nearly impossible to manage. Id. at 33-35.
In reply, plaintiffs assert that the government’s stance that it will not be bound by
collateral estoppel after the bellwether trial on liability moots any arguments that the current case
management approach would be superior to class certification. Pls.’ Reply at 12. They reason
that “the government can use its unlimited resources to put each upstream flood victim to the test
of proving liability individually at a cost that will far outweigh the potential recovery.” Id. at 13.
Plaintiffs question the inefficiencies that the government identifies as either hypothetical or not
actually burdensome and instead emphasize the potential cost of individual litigation should the
government refuse to honor the results of the bellwether liability trial and a subsequent appeal of
any just compensation awards. Id. at 13-15. Finally, plaintiffs contend that the close
commonality of the putative class members’ claims makes a class action superior to alternative
case management approaches. Id. at 15-19.
The timing of plaintiffs’ class certification motion again influences the court’s analysis.
The superiority prong requires the movant to prove that the benefits of class certification—i.e.,
“economies of time, effort, and expense, and promot[ing] uniformity,” Amchem Prods., 521 U.S.
at 615 (ellipsis omitted)—outweigh the costs thereof—“sacrificing procedural fairness or
bringing about other undesirable results,” id. (internal quotations omitted). Here, the court
cannot discount that, borrowing plaintiffs’ language, “opting into a win,” Hr’g Tr. 38:15 to 17,
would save putative class members time and money. Concurrently, the court cannot say that it is
fair to the government to bind it to instantaneous class-wide adjudication of potentially
thousands of plaintiffs’ claims after a trial on liability on the claims of thirteen bellwether
plaintiffs. See McCarthy, 741 F.2d at 1412 (“Fundamental fairness, as well as the orderly
administration of justice requires that defendants haled into court not remain indefinitely
uncertain as to the bedrock litigation fact of the number of individuals or parties to whom they
may ultimately be held liable for money damages. That is particularly true where, as here, the
defendants were facing either thirty-nine named plaintiffs or a class of almost two hundred times
the number of the original plaintiffs.”). While the number of potential upstream plaintiffs was
not unknown to the government, see Pls.’ Mot. at 9 n.19 (citing plaintiffs’ expert report that cited
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government records to identify thousands of flooded upstream properties), plaintiffs engaged in

the bellwether case management approach through years of motions practice, discovery, and trial
on liability before moving for class certification. It would be unfair, after securing a favorable
ruling at trial on liability, to permit plaintiffs to turn the tables on defendant and belatedly expand
the scope of the court’s liability decision from thirteen plaintiffs to thousands.
CONCLUSION
For the reasons above, plaintiffs’ class certification motion is DENIED. The parties shall
continue their preparations under the current bellwether approach for the just compensation
phase of the trial, which is tentatively scheduled to occur in the latter half of March 2022.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
13
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(Filed: December 17, 2021)
IN RE UPSTREAM ADDICKS AND

BARKER (TEXAS) FLOOD-
CONTROL RESERVOIRS
ALL UPSTREAM CASES
ORDER
Pending before the court is plaintiffs’ motion for reconsideration of this court’s decision
that plaintiffs’ class certification motion should be denied. See ECF No. 418. Plaintiffs argue
that the court’s decision misconstrues the record and should therefore be reconsidered. Id.
Plaintiffs’ contentions generally restate the arguments the court considered in its opinion;
therefore, plaintiffs’ motion for reconsideration is DENIED.
It is so ORDERED.
Charles F. Lettow
Senior Judge
Appx213
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(Filed: February 10, 2022)
IN RE UPSTREAM ADDICKS AND

BARKER (TEXAS) FLOOD-
CONTROL RESERVOIRS
ALL UPSTREAM CASES
ORDER
Pending before the court is the Remaining Master Complaint Plaintiffs’ Motion for Class
Certification (“Remaining Pls. Mot.”), ECF No. 420, filed December 17, 2021, which has been
fully briefed. See Pls.’ Resp., ECF No. 425; Def.’s Opp’n, ECF No. 428; Remaining Pls.’ Reply,
ECF 431.
This motion is essentially a reprise of plaintiffs’ earlier motion for class certification,
denied on December 15, 2021, see In re Upstream Addicks & Barker (Texas) Flood-Control
Reservoirs, ___ Fed. Cl. ___, 2021 WL 5915138 (Dec. 15, 2021), ECF No. 417. The court
denied a motion for reconsideration of that decision on December 17, 2021, see ECF No. 419.
The current motion raises no persuasive grounds for revisiting class certification. All of
the reasons for the denial of the first such motion appertain to the extant motion. The bellwether
mode of proceeding has been successful thus far, liability has been found after a trial held two
years ago, and trial of just compensation for certain bellwether claims will be scheduled to
proceed within a few months. Certification of a class of plaintiffs at this late juncture would be
inappropriate and unfair.
CONCLUSION
For the reasons stated, the Remaining Master Complaint Plaintiffs’ Motion for Class
Certification, ECF No. 420, is DENIED.
It is so ORDERED.
Charles F. Lettow
Senior Judge
Appx214

2023-09-22 Upstream Appeal DKT 32 - Micu Response and Opening Cross-Appeal Brief

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Case: 23-1363 Document: 32 Page: 1 Filed: 09/22/2023

Nos. 2023-1363, 2023-1365, 2023-1366, 2023-1412

UNITED STATES COURT OF APPEALS

EDGAR ABLAN, ET AL.,

CHRISTINA BANKER, TODD BANKER

RESPONSE AND OPENING BRIEF OF PLAINTIFFS-CROSS-APPELLANTS

Daniel H. Charest Ian Heath Gershengorn

Counsel for Plaintiffs-Cross-Appellants

(case caption continued below; additional counsel listed in signature block)

SANDRA ABDOU, ET AL.,

CHRISTINA MICU, AND ALL OTHERS SIMILARLY SITUATED,

ELISIO SOARES, SANDRA GARZA RODRIGUEZ,

Pursuant to Circuit Rules 26.1 and 47.4, counsel for Plaintiffs-Cross-

Appellants certifies the following:

1. The full name of every party or amicus represented by me is: Christina

Micu, Scott Holland, Catherine Popovici, and Kulwant Sidhu.

2. The names of the real parties in interest appear in the caption.

3. No parent corporations or publicly held companies own 10 percent or

more of the stock of the parties represented by me.

Gershengorn, Elizabeth B. Deutsch, Victoria Hall-Palerm, Leslie K. Bruce; Burns

5. The cases known to counsel to be pending in this or any other court or

In re Downstream Addicks & Barker Reservoirs, No. 1:17-cv-9002 (Fed. Cl.).

/s/ Ian Heath Gershengorn

Counsel for Plaintiffs-Cross-Appellants

September 22, 2023

TABLE OF AUTHORITIES ................................................................................... vi

JURISDICTIONAL STATEMENT ..........................................................................1

STATEMENT OF THE ISSUES...............................................................................2

II. Procedural Background ...................................................................................9

A. The CFC Found The Government Liable For Taking

1. The government built the Addicks and Barker dams

2. The government recognized its dams would flood

3. When Harvey hit, the dams worked as planned and

4. On this extensive record, the CFC found a clear

B. The CFC Denied Class Certification...................................................16

C. The CFC Awarded Plaintiffs Partially Incomplete

I. Flooding Upstream From A Dam Is A Textbook Taking. ............................22

2. Intent or foreseeability. .............................................................30

C. The Government’s Counterarguments Fail. ........................................35

1. Subjective weather predictions are irrelevant, but

2. There is no “police power” exception to the Takings

3. There is no “coming-to-the-nuisance” defense to

5. “It costs too much” is not a defense. .........................................45

II. The Government’s Attacks On Just Compensation Lack Merit. ..................47

A. Plaintiffs Are Entitled To Compensation For Structural

C. The CFC Correctly Awarded Compensation For Lost

D. The CFC Correctly Awarded Compensation For

I. The CFC Erred By Finding A Permanent Flowage Easement On

II. The CFC Erred By Offsetting Generally Available FEMA

III. The CFC Erred By Denying Class Certification Based Solely On

A. The CFC Clearly Erred In Construing The Timing Of

B. There Is No Bar To The Timing Of Plaintiffs’ Class

Bowditch v. City of Boston, 101 U.S. 16 (1879) ......................................................43

Horne v. Department of Agriculture, 576 U.S. 350 (2015) ...............................44, 47

Jackson v. United States, 230 U.S. 1 (1913)............................................................49

Jacobs v. United States, 45 F.2d 34 (5th Cir. 1930) ................................................27

Miller v. Schoene, 276 U.S. 272 (1928)...................................................................43

National Board of YMCA v. United States, 395 U.S. 85 (1969) .............................43

Northwest Louisiana Fish & Game Preserve Commission v. United

Quebedeaux v. United States, 112 Fed. Cl. 317 (2013) ...........................................28

Sanguinetti v. United States, 264 U.S. 146 (1924) ............................................26, 31

United States v. Welch, 217 U.S. 333 (1910) ..........................................................23