Edgar Ablan v. United States

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.
-------------------------------------------------
SANDRA ABDOU, ET AL.,
Plaintiffs
ELIZABETH BURNHAM
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
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ABLAN v. US 2
2023-1365
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:17-cv-01789-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.
______________________
Decided: December 22, 2025
______________________
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ABLAN v. US 3
ROGER J. MARZULLA, Marzulla Law, LLC, Washington,
DC, argued for all plaintiffs-appellees. Also represented by
NANCIE GAIL MARZULLA. Plaintiffs-appellees Christina
Banker, Todd Banker also represented by VUK
VUJASINOVIC, VB Attorneys, PLLC, Houston, TX. Plaintiff-
appellee Elizabeth Burnham also represented by EDWIN
ARMISTEAD EASTERBY, I, The Easterby Law Firm, P.C.,
Houston, TX.
IAN HEATH GERSHENGORN, Jenner & Block LLP, Wash-
ington, DC, argued for plaintiffs-cross-appellants. Also
represented by ELIZABETH B. DEUTSCH; DANIEL H.
CHAREST, Burns Charest LLP, Dallas, TX; CHARLES
IRVINE, Irvine & Conner PLLC, Houston, TX; EMERY
LAWRENCE VINCENT, Sorrels Law, Dallas, TX.
BRIAN C. TOTH, Appellate Section, Environment and
Natural Resources Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by TODD KIM.
______________________
Before REYNA, TARANTO, and CUNNINGHAM, Circuit
Judges.
CUNNINGHAM, Circuit Judge.
Appellees1 and Cross-Appellants2 (collectively, “Plain-
tiffs”) owned property interests upstream of the Addicks
and Barker Dams in Houston, Texas. The Army Corps of
Engineers (“the Corps”) designed and operated these dams
with the goal of preventing flooding in downtown Houston
during storms. Plaintiffs allege that the protocol adopted
1 Christina Banker, Todd Banker, and Elizabeth
Burnham.
2 Christina Micu, Scott Holland, Catherine Popovici,
and Kulwant Sidhu.
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ABLAN v. US 4
by the Corps included using all available reservoir storage
to protect downtown Houston, even at the cost of flooding
private lands. When Hurricane Harvey struck in 2017,
Plaintiffs’ properties flooded, and they subsequently sued
the government in the United States Court of Federal
Claims.
The Court of Federal Claims found the government li-
able for taking permanent natural-disaster flowage ease-
ments across Plaintiffs’ properties. See In re Upstream
Addicks & Barker (Tex.) Flood-Control Reservoirs,
146 Fed. Cl. 219, 264 (2019) (“Liability Decision”). After
the liability trial, Plaintiffs moved to certify a class for lia-
bility purposes. The Court of Federal Claims denied class
certification based on the untimeliness of Plaintiffs’ motion
and the criteria for certification. See In re Upstream Ad-
dicks & Barker (Tex.) Flood-Control Reservoirs, 157 Fed.
Cl. 189, 193 (2021) (“Class Certification Decision”). The
Court of Federal Claims then selected six bellwether prop-
erties for a damages trial, where it awarded a total of
$454,535.03, plus interest from the date of taking. In re
Upstream Addicks & Barker (Tex.) Flood-Control Reser-
voirs, 162 Fed. Cl. 495, 534 (2022) (“Damages Decision”).
The government appeals the Liability Decision,
arguing that its operation of the dams was not a taking.
Cross-Appellants appeal the Class Certification Decision,
contending that their motion was timely. Both the
government and Cross-Appellants appeal the Damages
Decision; the government contends that the Court of
Federal Claims erroneously awarded “consequential
damages” for leasehold advantage, lost rent, displacement,
and damaged personal property. Meanwhile, Cross-
Appellants contend that the Court of Federal Claims erred
by offsetting generally available Federal Emergency
Management Agency (“FEMA”) relief and by awarding
Ms. Popovici $0 for a permanent flowage easement on her
property. We affirm the decisions of the Court of Federal
Claims as to liability and class certification. With respect
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ABLAN v. US 5
to damages, we affirm the decision as to leasehold
advantage, damaged personal property, and offsetting of
FEMA relief, but vacate the decision as to lost rent,
displacement, and the valuation of Ms. Popovici’s
easement.
I. BACKGROUND
A.
Houston sits at the confluence of Buffalo Bayou and
White Oak Bayou, at the base of a system of streams that
flow through a flat plain. Liability Decision at 228–29;
J.A. 8395–96 ¶¶ 5–9. The area features soil that does not
drain well, and the streams are subject to flooding during
frequent storms. Liability Decision at 229; J.A. 8396
¶¶ 7–8. Major storms in 1929 and 1935 resulted in exten-
sive property damage and loss of life. Liability Decision
at 229; J.A. 8254; J.A. 8397–98 ¶¶ 10–11; J.A. 8786. In the
aftermath of the storms, Congress authorized the Corps to
reduce downstream flood risk by designing and building
the Addicks and Barker Dams as part of the Buffalo Bayou
and Tributaries, Texas Project. Liability Decision at 230;
An Act Authorizing the construction, repair, and preserva-
tion of certain public works on rivers and harbors, and for
other purposes, Pub. L. No. 75-685, 52 Stat. 802, 804
(1938); see also J.A. 8450; J.A. 8790; J.A. 9884–85 ¶ 4. The
Corps completed the dams in 1948. Liability Decision
at 231; J.A. 8454–55. The reservoirs of the Addicks and
Barker Dams are typically dry but fill with water when it
rains to prevent or reduce downstream flooding. Liability
Decision at 239; J.A. 8476–89.
During the planning of the Addicks and Barker Dams,
the Corps considered buying all upstream land within the
dams’ reservoirs that would be inundated in the event of
“the design storm rainfall of 31.4 inches.” Liability Deci-
sion at 232 (quoting J.A. 9907 ¶ 54). However, the Corps
“considered it ‘unnecessary to acquire lands to the pool el-
evation which would be produced by the design storm.’” Id.
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ABLAN v. US 6
(quoting J.A. 9907 ¶ 54). Instead, the Corps recommended
purchasing only part of that land, namely, the part that
would be inundated even in smaller storms, contending
that “the savings in annual interest would be in excess of
the probable damages” from the design storm or other
larger storms. J.A. 9907–08 ¶ 54; Liability Decision
at 231–33. Accordingly, the government purchased only
some of the lower-lying land within the reservoirs of the
Addicks and Barker Dams. Liability Decision at 231–33;
J.A. 1044–45 ¶¶ 94, 99, 102, 104. The Corps recognized
that this decision “w[ould] eventually place the [g]overn-
ment in the position of having to flood the area within the
reservoir with the accompanying damages in order to pro-
tect downstream improvements in the event of a severe fu-
ture storm.” Liability Decision at 234 (quoting J.A. 8864).
On August 25, 2017, Hurricane Harvey made landfall
along the coast of Texas as a Category 4 hurricane. Liabil-
ity Decision at 240; J.A. 1045 ¶ 107. Hurricane Harvey
stalled over the Houston area as a tropical storm for four
days. Liability Decision at 240; J.A. 1045 ¶ 108. The storm
involved historic amounts of rainfall, with an average four-
day rainfall of approximately 31 inches in the Addicks and
Barker watersheds. J.A. 9740; J.A. 9746; see Liability De-
cision at 240. As a result, the flood pools reached records
of 101.6 feet in the Barker Dam reservoir and 109.1 feet in
the Addicks Dam reservoir. Liability Decision at 241;
J.A. 1045–46 ¶¶ 110–15. The reservoir water thus could
not be contained on government-owned land and flooded
onto privately-owned land within the reservoirs, causing
extensive damage. Liability Decision at 241; J.A. 8017;
J.A. 8023.
B.
Numerous property owners filed complaints in the
Court of Federal Claims, alleging that the operation of the
Barker and Addicks Dams and the subsequent flooding
constituted an uncompensated physical taking of their
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ABLAN v. US 7
property. Liability Decision at 228. The Chief Judge of the
Court of Federal Claims consolidated the cases into a Mas-
ter Docket, then split them into an Upstream Sub-Master
Docket and a Downstream Sub-Master Docket. Liability
Decision at 228; see Milton v. United States, 36 F.4th 1154,
1159 (Fed. Cir. 2022).
The Court of Federal Claims bifurcated the liability
and damages issues and selected, for a liability trial, thir-
teen bellwether properties as representative of the up-
stream properties at issue in cases belonging to the
Upstream Sub-Master Docket. Liability Decision
at 227–28. After a ten-day trial, the Court of Federal
Claims found the government liable for a Fifth Amendment
taking of a flowage easement on all thirteen properties. Id.
at 228. The Court of Federal Claims held that Plaintiffs
possessed cognizable property interests, id. at 248–49, that
the government took flowage easements on those proper-
ties, id. at 249–63, and that the government’s asserted de-
fenses of police power and necessity did not absolve it of
liability. Id. at 263–64.
After the liability phase concluded, Plaintiffs moved to
certify a class for liability purposes. The Court of Federal
Claims denied the motion, holding that “a trial on the mer-
its of liability is a line after which moving for class certifi-
cation is presumptively inappropriate.” Class Certification
Decision at 196. The Court of Federal Claims further held
that the “timing of plaintiffs’ class certification motion”
would “undermine the adequacy of representation and su-
periority of class certification” under Court of Federal
Claims Rule (“RCFC”) 23. Id. at 197.
The Court of Federal Claims selected six of the thirteen
bellwether upstream properties for a compensation trial.
Damages Decision at 502. Ultimately, the Court of Federal
Claims awarded Plaintiffs amounts between $1,401.49 and
$195,549.86, for a total of $454,535.03, plus interest. Id.
at 534. The Court of Federal Claims awarded all Plaintiffs,
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ABLAN v. US 8
except Ms. Popovici, compensation for the taking of a per-
manent flowage easement as measured by the diminution
in value of their properties from the government’s flooding
of their properties in response to future Harvey-like
storms. Id. at 520–26; see id. at 530. The Court of Federal
Claims awarded various Plaintiffs, including Ms. Popovici,
compensation for structural repairs, replacement of per-
sonal property, displacement costs (including, for
Mr. Sidhu, the loss of rental value of condo units), and loss
of leasehold advantage. Id. at 526–31. To avoid duplica-
tive recovery, the Court of Federal Claims reduced Plain-
tiffs’ compensation by the amount of FEMA emergency
relief that they received. Id. at 531–33.
These appeals, which cover those upstream plaintiffs
designated as bellwethers for both liability and damages
purposes, followed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
II. STANDARD OF REVIEW
“Whether a taking has occurred is a question of law
based on factual underpinnings.” Stearns Co. v. United
States, 396 F.3d 1354, 1357 (Fed. Cir. 2005). We review de
novo the legal conclusions of the Court of Federal Claims
while reviewing its factual findings for clear error. Id. We
review the denial of a motion to certify a class for abuse of
discretion. Consol. Edison Co. of N.Y., Inc. v. Richardson,
233 F.3d 1376, 1379 (Fed. Cir. 2000).
III. DISCUSSION
We address in turn: (1) the government’s appeal of the
liability decision; (2) Cross-Appellants’ appeal of the denial
of class certification; and (3) the respective appeals of the
damages decision. We affirm as to the liability and class
certification decisions. As related to the damages decision,
we affirm as to leasehold advantage, damaged personal
property, and offsetting of FEMA relief, but vacate as to
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ABLAN v. US 9
lost rent, displacement, and the valuation of Ms. Popovici’s
easement.
A.
The government challenges the determination by the
Court of Federal Claims that the operation of the Addicks
and Barker Dams constituted a taking. See Appellant’s
Br. 20–55. The Fifth Amendment forbids the government
from taking private property “for public use, without just
compensation.” U.S. Const. amend. V. Courts must eval-
uate two prongs in determining whether a government ac-
tion constitutes a taking. “First, the court determines
whether the claimant has identified a cognizable Fifth
Amendment property interest that is asserted to be the
subject of the taking. Second, if the court concludes that a
cognizable property interest exists, it determines whether
that property interest was ‘taken.’” Acceptance Ins. Cos.
v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009).
Courts also assess whether any defenses absolve the gov-
ernment of liability. See TrinCo Inv. Co. v. United States,
722 F.3d 1375, 1377–80 (Fed. Cir. 2013). The government
argues that (1) Plaintiffs lacked cognizable property inter-
ests because any property interest was limited by the gov-
ernment’s inherent police power, Appellant’s Br. 45–55;
(2) any property interests were not taken, Appellant’s
Br. 20–45; and (3) the doctrine of necessity absolves the
government of any liability, Appellant’s Br. 49–51. We re-
ject each of the government’s arguments.
i.
We start by determining whether Plaintiffs held cog-
nizable property interests in flowage easements. The
Court of Federal Claims noted that “Plaintiffs are owners
of private properties not subject to flowage easements” and
that “[o]wnership of the properties by each plaintiff respec-
tively and the lack of a previous flowage easement are not
in dispute.” Liability Decision at 248–49. Nevertheless,
the government contends that Plaintiffs lacked a
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ABLAN v. US 10
compensable property interest because their land was held
subject to the background understanding of government
police power and the Flood Control Act’s limit on govern-
ment liability. Appellant’s Br. 46–55. We disagree.
As the government notes, we rejected versions of those
arguments in Milton v. United States, 36 F.4th 1154
(Fed. Cir. 2022). See Appellant’s Br. 49, 55 (indicating that
the government raises these arguments “to preserve the is-
sue[s] for further review”). In Milton, we squarely rejected
the government’s argument that property rights were “held
subject to the police power under federal law,” explaining
that the doctrine does not allow private property to be “sub-
ject to unbridled, uncompensated qualification under the
police power.” 36 F.4th at 1162. Rather, we explained that
the doctrine of necessity serves as a defense precluding li-
ability. Id. Similarly, we held that the Flood Control Act
does not render the government “immune from suits alleg-
ing takings based on its flood control measures,” because
the Tucker Act’s waiver of sovereign immunity for takings
claims was not withdrawn in the Flood Control Act. Id.
at 1160. While the latter holding was made in the context
of jurisdiction, our recognition that takings liability is not
barred by the Flood Control Act controls this case. Cf. First
Eng. Evangelical Lutheran Church of Glendale v. Cnty. of
Los Angeles, 482 U.S. 304, 316 n.9 (1987) (“Though arising
in various factual and jurisdictional settings, these cases
make clear that it is the Constitution that dictates the rem-
edy for interference with property rights amounting to a
taking.”).
To the extent that the government attempts to frame
its position as arguing that the Flood Control Act should
have led Plaintiffs to not expect compensation from the
government for flowage easements, Appellant’s Br. 51–55,
its argument still fails. “Congress may not override the
provision that just compensation must be made when pri-
vate property is taken for public use.” Scranton v. Wheeler,
179 U.S. 141, 153 (1900); see also Tyler v. Hennepin Cnty.,
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ABLAN v. US 11
598 U.S. 631, 645 (2023) (“[A state] may not extinguish a
property interest that it recognizes everywhere else to
avoid paying just compensation when it is the one doing the
taking.”). Accordingly, we reject the government’s argu-
ment that Plaintiffs’ property interests were limited by ei-
ther the government’s inherent police power or the Flood
Control Act, and hold that Plaintiffs had a cognizable prop-
erty interest in flowage easements on their land.
ii.
We now examine whether any taking occurred. “When
the government physically acquires private property for a
public use, the Takings Clause imposes a clear and cate-
gorical obligation to provide the owner with just compensa-
tion.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 147
(2021). The government “effects a physical taking when it
occupies property—say, by recurring flooding as a result of
building a dam.” Id. at 148; see Ideker Farms, Inc.
v. United States, 71 F.4th 964, 978 (Fed. Cir. 2023). How-
ever, for cases involving so-called “temporary flooding,”
courts apply a “multi-factor test for determining if tempo-
rary government induced flooding is a taking rather than
a mere trespass.” Ideker Farms, 71 F.4th at 978. Accord-
ingly, courts start by determining whether the flooding in
a case would be (perhaps already was) recurring so as to be
properly characterized as a permanent taking (even though
the waters of each individual flood recede); if not, it is
merely “temporary.” Id. at 979. We conclude that the
Court of Federal Claims did not err in finding that the
flooding was permanently recurring3 and, in the
3 The Court of Federal Claims issued its liability de-
cision prior to our issuance of Ideker Farms. Accordingly,
it applied the full multi-factor test without the benefit of
our holding that permanently recurring “flooding that fore-
seeably or intentionally results from government action is
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ABLAN v. US 12
alternative, that, even if the flooding were characterized as
temporary, it would still constitute a taking.
1.
We hold that the flooding of Plaintiffs’ properties gave
rise to a permanent taking. The Supreme Court has dis-
tinguished between “intermittent but inevitably recurring
overflows,” which give rise to permanent takings, Ark.
Game & Fish Comm’n v. United States, 568 U.S. 23, 32
(2012) (quoting United States v. Cress, 243 U.S. 316, 328
(1917)), and “takings temporary in duration,” id. at 32,
such as when a claimant was able to permanently “‘re-
claim[ ] most of his land which the government originally
took by flooding.’” Id. at 33 (quoting United States v. Dick-
inson, 331 U.S. 745, 751 (1947)). Where “land is not con-
stantly but only at intervals overflowed, the fee may be
permitted to remain in the owner, subject to an easement
in the United States to overflow it with water as often as
necessarily may result from the operation of the” dam.
Cress, 243 U.S. at 329. Our predecessor court specifically
a categorical physical taking.” Ideker Farms, 71 F.4th at
981; cf. Liability Decision at 248 (“[T]he [multi-factor test]
considerations remain relevant to the inquiry here, that is,
whether the government’s actions with regard to Addicks
and Barker constitute a compensable taking, albeit a per-
manent one.”). However, the Court of Federal Claims
made numerous factual findings en route to its liability de-
termination that adequately enable us to review its deci-
sion under the proper legal framework. See Liability
Decision at 250 (“The government, through its construc-
tion, maintenance, and operation of the Addicks and
Barker Dams in the past, present, and future, has taken a
permanent flowage easement on plaintiffs’ properties.”); id.
at 251 (citing the frequency of storms and testimony to find
that “[t]he future recurrence of a similarly large storm, pro-
ducing comparable rainfall, remains likely to occur again”).
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ABLAN v. US 13
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.” Stockton
v. United States, 214 Ct. Cl. 506, 518–19 (1977). These
cases confirm that whether flooding is inevitably recurring
turns not on mere frequency, but on whether there is a
“government action that will foreseeably produce intermit-
tent invasions by flooding without identifiable end into the
future.” Ideker Farms, 71 F.4th at 979. When that is true,
“the government takes a permanent right of access, akin to
an easement in gross, even if used only intermittently,” and
has effected a per se taking. Id. at 980.
The Court of Federal Claims made factual findings that
flooding of Plaintiffs’ properties was foreseeable and would
inevitably reccur without identifiable end. The Court of
Federal Claims found that “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 Ad-
dicks and Barker Reservoirs would at some point (and
thereafter) exceed the government-owned land, inundating
private properties.” Liability Decision at 255. It found that
the Corps understood that “storms of exceptionally large
size were possible in the Houston metropolitan area,” that
“pools of this size and the attendant flooding of private
property were, at a minimum, objectively foreseeable,” and
that Plaintiffs’ properties were “by government design,
within the dams’ flood-pool reservoirs.” Id. at 254–56.
Moreover, it found that “the sheer frequency of significant
storms . . . suggests that this was more than an isolated
event, and that it is likely to recur.” Id. at 251.
These findings are not clearly erroneous. There was
ample record evidence that the Houston area was prone to
large storms and that the Corps designed and operated the
Addicks and Barker Dams knowing that pools exceeding
the government-owned land would form. See, e.g.,
J.A. 8786–87 (“Harris County has been subjected to at
least 14 major storm events in the last 80 years . . . . [H]ad
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ABLAN v. US 14
some of these events been centered over Addicks and
Barker Reservoirs or the Upper Buffalo Bayou Watershed,
the combined rainfall and runoff could have resulted in
flood pools exceeding the limits of government owned
land.”); J.A. 8398 ¶ 13 (“[O]nly chance has prevented the
occurrence of a storm over the basin much larger than the
1935 storm.”); J.A. 8863–64 ¶ 4.2 (describing the inevita-
bility that the government will have “to flood the area
within the reservoir with the accompanying damages in or-
der to protect downstream improvements in the event of a
severe future storm”). While the exact frequency of storms
that would flood private property is unknowable, the Court
of Federal Claims did not clearly err in holding that the
flooding at issue here was objectively foreseeable and
would inevitably recur. Therefore, we conclude that the
“permanent intermittent flooding” of Plaintiffs’ properties
was “a physical taking subject to a per se rule,” Ideker
Farms, 71 F.4th at 980, and hold that the government took
permanent flowage easements in Plaintiffs’ properties.
2.
Even if the flooding of Plaintiffs’ properties were tem-
porary, we would still hold that the government took Plain-
tiffs’ properties. For cases involving “temporary flooding,”
courts apply a “multi-factor test for determining if tempo-
rary government induced flooding is a taking rather than
a mere trespass.” Ideker Farms, 71 F.4th at 978. These
factors include “time,” “the degree to which the invasion is
intended or is the foreseeable result of authorized govern-
ment action,” “the character of the land at issue,” “the
owner’s reasonable investment-backed expectations re-
garding the land’s use,” and the “[s]everity of the interfer-
ence.” Ark. Game, 568 U.S. at 38–39 (inner quotation
marks and citations omitted); see also Ridge Line, Inc.
v. United States, 346 F.3d 1346, 1355–56 (Fed. Cir. 2003).
On appeal, the government does not directly contend that
the Court of Federal Claims erred in finding that the char-
acter of the land, Liability Decision at 248 n.18, and
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ABLAN v. US 15
severity of the interference, id. at 250–53, weigh in favor of
the Plaintiffs. See generally Appellant’s Br. 20–35. On ap-
peal, the government challenges the Court of Federal
Claims’ analysis of the time, Appellant’s Br. 22–27, intent
or foreseeability, Appellant’s Br. 27–38, and reasonable in-
vestment-backed expectations factors. Appellant’s Br. 39–
45. With respect to the time and duration of the taking,
the government argues that Hurricane Harvey was an “iso-
lated trespass[ ]” and that the easement would be used
“during only the most extreme natural disasters.” Appel-
lant’s Br. 24. However, the Court of Federal Claims rea-
sonably found that the government “reserves the right to
repeat the impoundment” and that “the likelihood of recur-
rent flooding is high.” Liability Decision at 251 & n.20. As
the Court of Federal Claims found, the government has ob-
tained a “permanent right to inundate the property with
impounded flood waters.” Liability Decision at 250. We
see no clear error in the Court of Federal Claims’ determi-
nation that this factor weighs in favor of Plaintiffs.
The Court of Federal Claims similarly did not clearly
err in finding that the government foresaw the invasion of
Plaintiffs’ properties and intentionally took flowage ease-
ments on them. Liability Decision at 254–60. The govern-
ment argues that “urban development” of the land was
unanticipated. Appellant’s Br. 33. However, the inquiry is
whether “the invasion is intended or is the foreseeable re-
sult of authorized government action,” Ark. Game, 568 U.S.
at 39 (emphasis added), not whether the extent of the dam-
age from the invasion was foreseeable.4 See Sanguinetti
4 Indeed, the government could have “taken appro-
priate proceedings, to condemn as early as it chose, both
land and flowage easements.” Dickinson, 331 U.S. at 747.
By choosing not to do so and thus taking the calculated risk
that severe storms would not occur, it “left the taking to
physical events.” Id. at 748.
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ABLAN v. US 16
v. United States, 264 U.S. 146, 149–50 (1924) (focusing on
whether “overflow was the direct or necessary result of the
structure” or “within the contemplation of or reasonably to
be anticipated by the government”). Thus, for the reasons
discussed in Section III.A.ii.1, supra, intent or foreseeabil-
ity weighs in favor of Plaintiffs.
Lastly, we see no clear error in the Court of Federal
Claims’ finding that Plaintiffs’ reasonable investment-
backed expectations weigh in favor of finding a taking.5 Li-
ability Decision at 263. A takings claim is “not barred by
the mere fact that title was acquired after” the government
has acted. Palazzolo v. Rhode Island, 533 U.S. 606, 630
(2001). While the government argues that Plaintiffs
should have known that their land was susceptible to flood-
ing, Appellant’s Br. 39–45, the Court of Federal Claims jus-
tifiably relied on: (1) the undisputed fact “that plaintiffs
did not know their properties were located within the res-
ervoirs and subject to attendant government-induced flood-
ing,” Liability Decision at 262; (2) that “average
homeowner[s] do[ ] not generally know” how to “read and
understand” government maps that indicated the Plain-
tiffs’ properties were within the dams’ reservoirs, id.;
5 We assume, without deciding, that the Supreme
Court’s decision in Arkansas Game incorporated the “rea-
sonable investment-backed expectations” test from the reg-
ulatory takings context into the temporary flooding
context. 568 U.S. at 39 (describing reasonable-investment-
backed expectations as a factor, citing regulatory takings
cases); cf. Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 432 (1982) (explaining that “physical inva-
sion cases are special” and that “a permanent physical oc-
cupation is a government action of such a unique character
that it is a taking without regard to other factors” like “the
extent to which [a regulation] interferes with investment-
backed expectations”).
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ABLAN v. US 17
(3) that “it would take an uncommonly attentive eye to no-
tice” the “miniscule details” in “subdivision plats, which in-
dicate that land was subject to controlled inundation,” id.;
(4) that “there is no evidence that [public] meetings [con-
ducted by the Corps and local governments] were heavily
attended or particularly well publicized,” id. at 263; and
(5) that a regular flow of people moving in and out of the
community meant that many new residents would not
know of the risk of flooding, id. The Court of Federal
Claims’ weighing of this evidence and finding that reason-
able investment-backed expectations weigh in favor of
Plaintiffs were not clearly erroneous.
Accordingly, even if the flooding of Plaintiffs’ properties
were temporary, we would hold that the government took
flowage easements on Plaintiffs’ properties because every
factor of the Arkansas Game test favors Plaintiffs.
iii.
The government contends that any taking is excused
by a necessity defense. See Appellant’s Br. 45–51. We dis-
agree. This is not a case where the government prevented
a landowner from activities “akin to public nuisances.” Lu-
cas v. S.C. Coastal Council, 505 U.S. 1003, 1022 (1992).
Nor is it one where the government’s actions were in re-
sponse to an unforeseeable exigency, such as where urgent
action was taken “to prevent the spreading of a fire.” See
id. at 1029 n.16 (quoting Bowditch v. City of Boston,
101 U.S. 16, 18–19 (1879)). And the government did not
build and operate the Addicks and Barker Dams for the
benefit of Plaintiffs. Cf. Nat’l Bd. of YMCA v. United
States, 395 U.S. 85, 90–93 (1969) (holding that there was
no compensation for takings liability when there was a
temporary and unplanned occupation of petitioners’ build-
ings by troops who “were acting primarily in defense of pe-
titioners’ buildings,” rather than the “general defense” of
the zone). Instead, the government, as it does in every
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ABLAN v. US 18
flooding case,6 allocated the location of water between pri-
vate citizens. In doing so, it aided some property owners
(downstream residents) and harmed others (upstream res-
idents). “The Fifth Amendment’s guarantee that private
property shall not be taken for a public use without just
compensation was designed to bar [g]overnment from forc-
ing 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, 49 (1960).
Accordingly, we reject the government’s necessity defense.
Having held that Plaintiffs had a property interest,
that a taking occurred, and that no defense applies, we af-
firm the Liability Decision.
B.
Cross-Appellants contend that the Court of Federal
Claims abused its discretion by denying class certification.
Cross-Appellants’ Br. 63–68. Cross-Appellants contend
that, as a factual matter, the Court of Federal Claims
clearly erred by concluding that there was “no basis . . . to
credit plaintiffs’ argument that the court instructed or
asked them to delay their class certification motion.”
Cross-Appellants’ Br. 65–66 (quoting Class Certification
Decision at 200). As a legal matter, Cross-Appellants also
contend that the Court of Federal Claims erred by holding
that “a trial on the merits of liability is a line after which
moving for class certification is presumptively inappropri-
ate.” Class Certification Decision at 196; see Cross-Appel-
lants’ Br. 66–68. We consider and reject both arguments.
6 Indeed, at least one circuit court has distinguished
“flooding case[s]” from those that involve “necessity during
an active emergency,” such as a “hostage situation” or a
“potential shootout.” Baker v. City of McKinney, 84 F.4th
378, 384–85 (5th Cir. 2023).
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ABLAN v. US 19
Judge Lettow did not err in finding that the Court of
Federal Claims did not instruct Plaintiffs to delay their
class certification motion. Cross-Appellants’ factual argu-
ment relies heavily on statements by then-Chief Judge
Braden that she would set a new scheduling order,
J.A. 2192–93 at 193:6–194:22, and that “the economic im-
pact 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 ac-
tion certification is considered.” J.A. 2308. However, the
cases were reassigned to Judge Lettow, who agreed that it
“ma[de] sense” to handle class certification “during the
merits briefing.” J.A. 2207 at 11:5–11; see J.A. 2205–08
at 9:12–12:6. Cross-Appellants contend that by saying he
“would strongly prefer that we focus on jurisdiction first,
even though a lot of that would carry over to liability” and
“[t]hat might affect [counsel’s] thinking on class certifica-
tion,” J.A. 2206 at 10:17–20, Judge Lettow, like Judge
Braden, permitted Plaintiffs to wait to file their class cer-
tification motion until after jurisdiction and liability were
concurrently resolved. Cross-Appellants’ Br. 65. However,
Judge Lettow’s statement is at best ambiguous as to
whether he was suggesting that class certification should
be addressed during briefing of the merits or after jurisdic-
tion was resolved.7 A trial court’s “interpretation of its or-
der is entitled to deference unless the interpretation is
unreasonable or is otherwise an abuse of discretion.”
Amado v. Microsoft Corp., 517 F.3d 1353, 1358 (Fed. Cir.
2008). Judge Lettow’s statements were not so clear that
7 Notably, Judge Lettow appears to have expected
class certification to have been raised earlier, see
J.A. 2205–06 at 9:24–10:2 (asking why there was no mo-
tion for class certification yet), and Plaintiffs did not indi-
cate to Judge Lettow that they were relying on any
statements from then-Chief Judge Braden. See generally
J.A. 2203–15.
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ABLAN v. US 20
Plaintiffs were entitled to rely upon them to delay class cer-
tification. Accordingly, we hold that Judge Lettow did not
clearly err in finding that Plaintiffs were not instructed to
delay their class certification motion until after a liability
trial.
Turning to Cross-Appellants’ legal challenge, we de-
cline to adopt a rule that generally (if not ever) permits
“foisting trial-before-certification on an unwilling” defend-
ant in an optional class suit. In re Citizens Bank, N.A.,
15 F.4th 607, 619 (3d Cir. 2021). In doing so, we join all
other Courts of Appeals that have considered this issue in
relation to Federal Rule of Civil Procedure 23(b)(3).8 See
id. at 618–19, 618 n.11 (collecting cases). Cross-Appellants
contend that the opt-in nature of RCFC 23 class actions
makes them more like mandatory Fed. R. Civ. P. 23(b)(2)
injunctive class actions than optional Fed. R. Civ. P.
23(b)(3) damages class actions. Cross-Appellants’ Reply
Br. 19–20; see 3 William B. Rubenstein, Newberg & Ru-
benstein on Class Actions § 7.11 (6th ed. 2025) (noting that
Fed. R. Civ. P. 23(b)(2) actions pose less concern for post-
trial class certification than Fed. R. Civ. P. 23(b)(3) ac-
tions). We disagree with Cross-Appellants and conclude
that the logic behind precluding post-trial certification of
Fed. R. Civ. P. 23(b)(3) class actions applies equally to
RCFC 23. For classes certified under both these rules, un-
like for Fed. R. Civ. P. 23(b)(2) classes, a plaintiff would
have the option to join or leave the class after seeing the
8 There is a circuit split on whether a defendant’s
consent can provide an exception to this rule. See In re Cit-
izens Bank, N.A., 15 F.4th 607, 618–19 (3d Cir. 2021) (not-
ing that seven Courts of Appeals have held that Rule 23
requires class certification prior to a trial on the merits,
while four Courts of Appeals have allowed limited excep-
tions in cases involving defendant consent). This issue is
not before us, and accordingly we do not resolve it.
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ABLAN v. US 21
liability verdict. See RCFC 23(c)(2)(v) (“[T]he court will in-
clude in the class any member who requests inclusion.”).
Allowing plaintiffs to know the liability ruling before decid-
ing whether to join the class often would be manifestly un-
just. See Am. Pipe & Const. Co v. Utah, 414 U.S. 538, 547
(1974) (describing it as a “recurrent source of abuse” in a
former version of Fed. R. Civ. P. 23 that “members of the
claimed class could in some situations await developments
in the trial or even final judgment on the merits in order to
determine whether participation would be favorable to
their interests”). Therefore, we join our sister circuits in at
least presumptively refusing to permit opposed post-trial
class certification for optional classes, and we affirm the
denial of class certification here.9
C.
The government and Cross-Appellants each appeal
portions of the Damages Decision. The government chal-
lenges (1) the award of compensation for personal property
and structures to all Plaintiffs, Appellant’s Br. 61–62; see
Damages Decision at 525–30; (2) the award of compensa-
tion to Mr. Holland for the loss of his “leasehold ad-
vantage,” Appellant’s Br. 56–57; see Damages Decision
at 526; (3) the award of lost income, utility payments, and
lost rent to Mr. Sidhu, a landlord whose units flooded, Ap-
pellant’s Br. 57–59; see Damages Decision at 531; and
(4) the award of displacement or dislocation costs to several
Plaintiffs who rented alternative housing while their prop-
erties were inaccessible or unrepaired, Appellant’s Br. 59–
61, see Damages Decision at 530–31. Cross-Appellants
challenge (1) the award of $0 for the flowage easement on
Ms. Popovici’s property, Cross-Appellant’s Br. 57–58; see
Damages Decision at 526, 529–30; and (2) the offsetting of
9 We do not decide whether other plaintiffs with sim-
ilar claims, whose cases have not proceeded through trial,
may move for class certification.
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ABLAN v. US 22
FEMA emergency relief aid payments from several Plain-
tiffs’ compensation awards, Cross-Appellants’ Br. 58–62;
see Damages Decision at 531–33. We reject the govern-
ment’s arguments regarding personal property and lease-
hold advantage and Cross-Appellants’ argument regarding
FEMA offsets. We vacate with respect to Mr. Sidhu’s lost
income, the displacement costs, and the valuation of the
flowage easement on Ms. Popovici’s property.
i.
We start by addressing the government’s challenges to
the Damages Decision.
First, the Court of Federal Claims properly awarded
compensation for structures and personal property dam-
aged during Hurricane Harvey. Contrary to the govern-
ment’s assertions, Appellant’s Br. 61, “Plaintiffs do not
claim compensation consequential to the taking of an ease-
ment—rather, they seek compensation for the govern-
ment’s appropriation of two distinct property interests” as
a result of the flooding. Ideker Farms, 71 F.4th at 988. In
Ideker Farms, we awarded compensation to farmers whose
land was flooded, not just for the value of a “permanent
flowage easement,” but also for the “crops and other per-
sonal property destroyed by flooding.” Id. at 987; see gen-
erally Ark. Game & Fish Comm’n v. United States,
736 F.3d 1364, 1378 (Fed. Cir. 2013) (on remand from the
Supreme Court, affirming the Court of Federal Claims’ de-
cision awarding damages for trees destroyed by temporary
flooding). We have explained that “the flowage easement
awarded by the trial court compensates Plaintiffs for the
taking caused by future flooding,” and that past damages
can be compensable if derived from a separate property in-
terest. Ideker Farms, 71 F.4th at 986–87. This rule re-
flects the difference between condemnations and inverse
condemnations: “when the government chooses not to con-
demn land but to bring about a taking by a continuing pro-
cess of physical events,” the government bears the risk.
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ABLAN v. US 23
Dickinson, 331 U.S. at 749. The Court of Federal Claims
applied our precedent by awarding damages both for the
value of the flowage easement and the value of destroyed
structures and personal property.
Second, the Court of Federal Claims properly awarded
Mr. Holland compensation for the taking of his leasehold
advantage. “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) (footnote omitted). “The measure
of damages is the value of the use and occupancy of the
leasehold for the remainder of the tenant’s term, plus the
value of the right to renew . . . , less the agreed rent which
the tenant would pay for such use and occupancy.” Id.
at 304 (alteration in original) (quoting United States
v. Petty Motor Co., 327 U.S. 372, 381 (1946)). Mr. Holland
had an unexpired below-market lease with six months re-
maining at the time that his landlord indicated he would
not restore the property and terminated his lease. Dam-
ages Decision at 526; see id. at 510 & n.8. Accordingly, the
Court of Federal Claims adhered to Alamo Land by award-
ing Mr. Holland the difference between the monthly rent
he was paying before his lease was terminated and the fair
rental value multiplied by six. See id. at 526; id. at 510 &
n.8. Thus, the Court of Federal Claims did not err by
awarding Mr. Holland compensation.
Third, the Court of Federal Claims erred by awarding
Mr. Sidhu compensation for lost income, utility payments,
and rent. While Plaintiffs may be compensated for “sepa-
rate and independent loss of compensable property” such
as “personal property,” “lost profits from operating a busi-
ness are not compensable.” Ideker Farms, 71 F.4th at 987–
89; see United States v. Gen. Motors Corp., 323 U.S. 373,
380 (1945) (“[D]amage to those rights of ownership does not
include losses to his business or other consequential
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ABLAN v. US 24
damage.”). In defending the trial court’s award of lost rent,
lost income, and utility payments to Mr. Sidhu, Cross-Ap-
pellants principally rely on Ideker Farms. See Cross-Ap-
pellants’ Br. 52–54. Cross-Appellants overread our
precedent: In Ideker Farms we held that the plaintiffs
could receive compensation for destroyed personal property
and crops to the extent “it was a separate and independent
loss” not tied to the “value generated from the owner’s use
of property.” Ideker Farms, 71 F.4th at 987. Thus, the
plaintiffs in Ideker Farms could receive compensation for
their land based on a flowage easement and separately for
their destroyed crops but could not receive compensation
for “revenues [p]laintiffs expected from unplanted seeds
that were not destroyed by the flooding.” Id. at 987–88.
Likewise, Mr. Sidhu received compensation for his real
property interest in the form of compensation for a flowage
easement, Damages Decision at 525–26, but should not
also receive the lost profits tied to his business use of that
real property. Gen. Motors, 323 U.S. at 379. Accordingly,
we hold that the Court of Federal Claims erred by award-
ing Mr. Sidhu compensation for lost rent and for utility
payments.
Fourth, the Court of Federal Claims erred by awarding
some Plaintiffs costs for the amounts they spent renting
alternative housing while their properties were inaccessi-
ble. Relocation costs may sometimes be considered, “not as
independent items of damage but to aid in the determina-
tion of what would be the usual—the market—price . . . for
[a] temporary occupancy.” Gen. Motors, 323 U.S. at 383
(considering the cost to remove goods from a warehouse as
part of the just compensation inquiry). Here, however, the
government, by way of the permanent flowage easement,
received the right to temporarily occupy Plaintiffs’ property
with water. Thus, Plaintiffs have already received “the
market rental value of such a [property interest] by the
long-term tenant to the temporary occupier,” and no fur-
ther compensation for the temporary occupation is proper.
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ABLAN v. US 25
Id.; see id. at 382 (When there is a permanent taking of a
property, one “must stand whatever indirect or remote in-
juries are properly comprehended within the meaning of
‘consequential damage.’”). And, as noted above, there is no
separate property interest like in Ideker Farms for which a
court can properly award damages. Thus, the Court of Fed-
eral Claims erred by awarding Plaintiffs costs for their
temporary displacement.
ii.
We turn now to Cross-Appellants’ challenges to the
Damages Decision.
The Court of Federal Claims clearly erred by not
awarding compensation to Ms. Popovici for the flowage
easement on her property. Like other Plaintiffs, Ms. Popo-
vici sought compensation for past damage ($1,401.49 for
the costs to repair her garage), Damages Decision at 530,
and prospective damages as compensation because of a
flowage easement (valued at over $100,000 by Plaintiffs’
experts and at $5,000 by the government’s expert), Dam-
ages Decision at 512, 515. The Court of Federal Claims
awarded her $1,401.49 in total compensation. Damages
Decision at 534. In so doing, it appears that the Court of
Federal Claims, without explanation, valued the flowage
easement on Ms. Popovici’s property at $0. Indeed, the
Court of Federal Claims found that, while there was no
structural flooding, the majority of Ms. Popovici’s property
was subject to the flowage easement, Damages Decision
at 510, and the water remained for between four and six
days while preventing ingress or egress. Liability Decision
at 243. In light of those unchallenged factual findings, we
hold that it was clear error to value the government’s per-
manent right to flood Ms. Popovici’s property at $0. Cf. Ce-
dar Point, 594 U.S. at 148 (“The government must pay for
what it takes.”). We vacate this portion of the Damages
Decision for the Court of Federal Claims and remand to re-
evaluate Ms. Popovici’s damages award.
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ABLAN v. US 26
We reject Cross-Appellants’ argument that the Court
of Federal Claims erred by offsetting their compensation
awards by the amount already received from FEMA be-
cause Cross-Appellants did not receive any “special bene-
fits” that inured “specifically to the landowner who suffered
the partial taking” and that were “associated with the own-
ership of the remaining land.” Cross-Appellants’ Br. 59
(quoting Hendler v. United States, 175 F.3d 1374, 1380
(Fed. Cir. 1999)). Cross-Appellants rely on a limitation to
the relative benefits doctrine which states that when the
government’s taking helps a claimant, that value can be
offset only if it is not to the “community at large.” Hendler,
175 F.3d at 1380. However, this test is only a narrow ap-
plication of the broader principle that a plaintiff whose
property was taken “must be made whole but is not entitled
to more.” Olson v. United States, 292 U.S. 246, 255 (1934).
Thus, the Court of Federal Claims did not err in consider-
ing whether double recovery would ensue if FEMA awards
were not offset.
The Court of Federal Claims did not clearly err in find-
ing that double recovery would ensue if FEMA awards for
damaged personal property were not offset. Cross-Appel-
lants primarily take issue with the decision by the govern-
ment to “present evidence exclusively about the categories
of relief FEMA paid, rather than any specific items for
which FEMA reimbursed plaintiffs.” Cross-Appellants’
Br. 61. The Court of Federal Claims made a factual finding
that these award categories were the “very same property
losses and damages” that Cross-Appellants claimed as per-
sonal property losses. Damages Decision at 532. That find-
ing was not clearly erroneous and is adequately supported
by expert testimony and by Cross-Appellants’ inventories
listing personal property similar to that paid for by FEMA.
See, e.g., J.A. 7694–96 at 2725:4–2730:13 (expert testi-
mony mapping Plaintiffs’ losses onto the FEMA awards);
J.A. 11383–413 (personal property depreciation esti-
mates). The Court of Federal Claims did not clearly err in
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ABLAN v. US 27
holding that the government carried its burden to demon-
strate that FEMA payments already compensated Plain-
tiffs’ personal property losses and that prevention of double
recovery required offsetting the FEMA awards.
IV. CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Liability Decision and the Class Certification De-
cision, and we affirm-in-part and vacate-in-part the Dam-
ages Decision. We remand to the Court of Federal Claims
for reconsideration of the amount of compensation due to
Ms. Popovici and re-evaluation of damages consistent with
this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
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