The Federal Circuit has made it clear that "[t]he definitive issue with respect to . . .[a] taking claim . . . is whether [the plaintiff] had a property interest that was taken from him by government action." Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir. 1996).
" Id. Lastly, we stated: "Nor is it the judicial role to discipline the agency's noncompliance with the supervisory and reporting instructions of congressional oversight." Id. (citing Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir.1996) ("Congress has undoubted capacity to oversee the performance of Executive Branch agencies, consistent with its constitutional authority. It is not for this court to instruct Congress on how to oversee and manage its creations."); Nat'l Treasury Employees Union v. Campbell, 654 F.2d 784, 794 (D.C. Cir.1981) (By statutory requirement that the Comptroller General report on certain expenditures, "Congress itself is in a position to monitor and enforce its spending limitations. It is not for us to question the effectiveness of existing remedies and infer additional remedies."); E. Walters Co. v. United States, 217 Ct.Cl. 254, 576 F.2d 362, 367 (1978) ("The fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable.
For that reason, the en banc court held that the Navy's "noncompliance with the supervisory and reporting instructions" in section 8118 did not render the RDA contract void. Id. at 1375 (citing Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir. 1996)). Instead, this court emphasized the "supervisory" role of the legislative branch in ensuring compliance with the policies of section 8118. More specifically, in AT T III, this court held that section 8118 functions as an "internal review and reporting procedure" for congressional oversight.
Nor is it the judicial role to discipline the agency's noncompliance with the supervisory and reporting instructions of congressional oversight. See Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir. 1996) ("Congress has undoubted capacity to oversee the performance of Executive Branch agencies, consistent with its constitutional authority. It is not for this court to instruct Congress on how to oversee and manage its creations."); E. Walters Co. v. United States, 576 F.2d 362, 367 (Ct.Cl. 1978) ("The fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable.
Since the reemergence of Fifth Amendment takings law from its long Twentieth-century slumber, see Hendler, 952 F.2d at 1371-74, takings claims have come in a variety of forms arising from a variety of fact patterns, some of which fit less than comfortably into the regulatory or physical takings dichotomy. See, e.g., Board of County Supervisors v. United States, 48 F.3d 520 (Fed. Cir. 1995) (claiming, inter alia, a taking of a developer's "proffers"); Richmond, Fredericksburg Potomac R.R. Co. v. United States, 75 F.3d 648 (Fed. Cir. 1996) (claiming, inter alia, that public's assertion of its alleged rights by the Government constituted a taking); Longshore v. United States, 77 F.3d 440 (Fed. Cir.) (claiming that imposition of a fee for applying for a cellular radio license was a taking), cert. denied, ___ U.S. ___, 117 S. Ct. 52, 136 L.Ed.2d 15 (1996). See generally Note, The U.S.-Iran Accords and the Taking Clause of the Fifth Amendment, 68 Va.L.Rev. 1537 (1982) (discussing various factors that may be relevant to deciding whether compensation is warranted).
Instead, if Congress remained unsatisfied with agency procurement practices, Congress expressed its willingness to hold hearings and (as it did when it enacted the 1989, 1990, 1991, 1992, and 1993 Defense Appropriations Acts) to alter the reporting and internal approval obligations. It is not the judicial role to monitor executive agency reports to Congress, or to discipline the Navy's internal compliance with the oversight actions requested by Congress. Cf. Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir. 1996) ("Congress has undoubted capacity to oversee the performance of Executive Branch agencies, consistent with its constitutional authority. It is not for this court to instruct Congress on how to oversee and manage its creations."); National Treasury Employees Union v. Campbell, 654 F.2d 784, 794 (D.C. Cir. 1981) (when Congress required investigation and reporting to Congress by the [Comptroller General], the court stated: "By means of this and other safeguards, Congress itself is in a position to monitor and enforce its spending limitations. It is not for us to question the effectiveness of the existing remedies and infer additional remedies. . . .") (footnote omitted).
Neither does the takings clause of the Fifth Amendment (except perhaps in the most extreme case, see n. 5, infra). See City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 376-80, 94 S.Ct. 2291, 2296-97 (1974); Longshore v. United States, 77 F.3d 440, 443-44 (Fed. Cir.), cert. denied, 117 S.Ct. 52 (1996); Heitsch v. Kavanagh, 200 F.2d 178, 180-81 (6th Cir. 1952), cert. denied, 345 U.S. 939, 73 S.Ct. 829 (1953); Currey-Bey v. United States, 1995 WL 735781, *3 (Fed.Cl. June 22, 1995). As we have noted, Flast rejected the Tenth Amendment as a source of any specific limitation on congressional power to tax and spend, and for comparable reasons we think the Ninth Amendment, which simply disclaims any denial or disparagement of rights not enumerated in the Constitution, fails to supply such a limitation.
The mere obligation to pay money does not necessitate recovery under the Fifth Amendment. See Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1340 (Fed. Cir. 2001); see also Longshore v. United States, 77 F.3d 440, 443-45 (Fed. Cir. 1996) (where the Court found that the required payment of fees as a prerequisite to participating in a lottery for a radio cellular systems license is not a taking). In this case, there is no property interest at stake.
Other courts considering similar fees have rejected such arguments and found user fees are not the equivalent of a tax and therefore do not violate the uniformity clause. For example, in Longshore v. United States, 77 F.3d 440, 444 (Fed. Cir. 1996), cert. denied, 519 U.S. 808 (1996), the Court dismissed the plaintiff's argument that a FCC user fee keyed to the agency's costs resulted in the levy of a general tax. Accordingly, this Court concludes the argument that the fees violate the uniformity clause is not valid.
See also ConocoPhillips, 73 Fed. Cl. at 52; Gould, Inc. v. United States, 66 Fed. Cl. 253, 259 (2005). See Longshore v. United States, 77 F.3d 440, 443 (Fed. Cir.), cert. denied, 519 U.S. 808 (1996) ("Congress has undoubted capacity to oversee the performance of Executive Branch agencies, consistent with its constitutional authority. It is not for this court to instruct Congress on how to oversee and manage its creations."); E. Walters Co. v. United States, 576 F.2d 362, 367 (Ct. Cl. 1978) ("The fact that a procurement practice is prohibited does not necessarily mean that it is therefore actionable.