Mehaffy v. United States (Fifth Amendment Taking)

Court of Appeals for the Federal Circuit

NAHB Involvement
Assistance to Plaintiff

Mr. Mehaffy claimed that the Army Corps of Engineers violated the Takings Clause of the Constitution by denying him a permit to fill wetlands on his property. The trial court used the Penn Central analysis and found that no taking occurred. On appeal, the Federal Circuit affirmed holding that because Mr. Mehaffy bought the property after the Clean Water Act was enacted in 1972, he could not claim a taking. This holding contradicts Supreme Court precedent.

With NAHB's assistance, Mr. Mehaffy filed a motion to reconsider on Feb. 4, 2013. On March 7, 2013, the Court of Appeals for the Federal Circuit denied the motion for rehearing. Mr. Mehaffy, with further NAHB assistance, filed a cert petition with the U.S. Supreme Court on June 3, 2013. In addition, Staff was able to garner amicus support from PLF and NFIB and those briefs were filed in early July. The government opted not to file a brief, but was directed to do so by the Supreme Court. The government filed a response in late November, and with NAHB's assistance, Mr. Mehaffy filed a response in December 2013. The Court set the case for Conference on January 10, but unfortunately decided against taking the case. Certiorari was denied on Jan. 13, 2014.

For more information about this item, please contact Devala Janardan at 800-368-5242 x8335 or via email at

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