`for the Federal Circuit
`______________________
`
`CALLAN CAMPBELL, JAMES H. CHADWICK,
`JUDITH STRODE CHADWICK, KEVIN C.
`CHADWICK, INDIVIDUALLY AND THROUGH HIS
`COURT-APPOINTED ADMINISTRATORS, JAMES
`H. CHADWICK AND JUDITH STRODE CHADWICK,
`KEVIN JUNSO, NIKI JUNSO, TYLER JUNSO
`ESTATE, THROUGH KEVIN JUNSO, ITS
`PERSONAL REPRESENTATIVE,
`Plaintiffs-Appellants
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2018-2014
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:15-cv-00717-PEC, Judge Patricia E. Campbell-
`Smith.
`
`______________________
`
`Decided: August 1, 2019
`______________________
`
`STEVEN R. JAKUBOWSKI, Robbins Salomon & Patt, Ltd.,
`Chicago, IL, argued for plaintiffs-appellants.
`
` JOHN JACOB TODOR, Commercial Litigation Branch,
`Civil Division, United States Department of Justice,
`
`
`
`2
`
`CAMPBELL v. UNITED STATES
`
`Washington, DC, argued for defendant-appellee. Also rep-
`resented by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN,
`JR., FRANKLIN E. WHITE, JR.
` ______________________
`
`Before NEWMAN, LOURIE, and DYK, Circuit Judges.
`DYK, Circuit Judge.
`This case arises out of the 2009 bankruptcy of General
`Motors Corporation (“Old GM”).1 The plaintiffs compose a
`putative class of individuals who had asserted personal in-
`jury claims against Old GM, and whose successor liability
`claims were extinguished during bankruptcy. Relying on
`our decision in A & D Auto Sales, Inc. v. United States, 748
`F.3d 1142 (Fed. Cir. 2014), the plaintiffs sued the United
`States on behalf of themselves and others similarly situ-
`ated in the Court of Federal Claims (“Claims Court”), al-
`leging that the extinguishment of their claims without just
`compensation violated the Takings Clause of the Fifth
`Amendment. The Claims Court dismissed the plaintiffs’
`claims, concluding that they were barred by the statute of
`limitations and that the plaintiffs had, in any event, failed
`to state a claim. Because we hold, as to the claims alleging
`coercion of Old GM, that the statute of limitations had run
`when the plaintiffs filed their complaint and, with respect
`to the plaintiffs’ other claims, that the Claims Court also
`lacks jurisdiction, we affirm.
`BACKGROUND
`I
`In A & D, a group of former automobile dealerships
`sued the United States, raising Fifth Amendment takings
`claims based on the extinguishment of the plaintiffs’
`
`
`1
`“Old GM” refers to the GM entity in existence prior
`to the sale of assets pursuant to 11 U.S.C. § 363.
`
`
`
`CAMPBELL v. UNITED STATES
`
`3
`
`franchise agreements with Old GM in a bankruptcy sale
`pursuant to 11 U.S.C. § 363. 748 F.3d at 1147. That sec-
`tion gives a bankruptcy trustee the power to use, sell, or
`lease the property of a debtor in bankruptcy. In particular,
`§ 363(f) (the provision at issue here) provides that “[t]he
`trustee may sell property . . . free and clear of any interest
`in such property of an entity other than the estate” under
`certain conditions. 11 U.S.C. § 363(f) (emphasis added).
`In A & D, the plaintiffs alleged that the government
`had conditioned its continued financial assistance to Old
`GM on the company’s submission for approval of a pro-
`posed sale order that terminated the plaintiffs’ franchise
`agreements. 748 F.3d at 1148. The plaintiffs contended
`that this purported coercion effected a regulatory taking
`under the Fifth Amendment. Id. at 1149. The Claims
`Court denied the government’s motion to dismiss for fail-
`ure to state a claim but certified the case for interlocutory
`appeal pursuant to 28 U.S.C. § 1292(d)(2). Id. at 1150.
`On appeal, we held that the government may, in some
`circumstances, be liable for a regulatory taking of property
`where the government pressures a third party (there, al-
`legedly Old GM) to take an “action that affects or elimi-
`nates the property rights of the plaintiff.” Id. at 1153. We
`determined that such conduct may give rise to a taking
`where the government’s action was “direct and intended”
`and where the “the third party is acting as the govern-
`ment’s agent or the government’s influence over the third
`party was coercive rather than merely persuasive.” Id. at
`1154. We did not decide whether the government’s actions
`with respect to Old GM were coercive or otherwise satisfied
`the conditions for takings liability.2 Id. at 1155–56. We
`
`2 Even if coercion had been established, that would
`merely make the third party’s action the equivalent of gov-
`ernment action. The plaintiffs would still be required to
`engage in the Penn Central analysis and to establish a
`
`
`
`4
`
`CAMPBELL v. UNITED STATES
`
`explained that to state a claim, the plaintiffs needed to
`have pled that their “property suffered a diminution in
`value or a deprivation of economically beneficial use” as a
`result of the government’s action. Id. at 1157. We deter-
`mined that the plaintiffs’ allegations were insufficient to
`show that their franchise agreements had value absent the
`government action and remanded to the Claims Court to
`permit the plaintiffs to amend their complaint “to include
`specific allegations establishing loss of value” and thereaf-
`ter to determine whether a compensable taking had oc-
`curred. Id. at 1158–59.
`
`II
`Relying on A & D, on July 9, 2015, the plaintiffs here
`sued the government in the Claims Court alleging that the
`government had coerced Old GM to include in its proposed
`bankruptcy sale order provisions extinguishing the plain-
`tiffs’ property interests pursuant to § 363 of the Bank-
`ruptcy Code.
`The plaintiffs are a group of individuals who alleged
`that they are victims of accidents involving GM vehicles (or
`are the family members or estates of such individuals), and
`had personal injury claims against Old GM. The plaintiffs
`alleged that under Michigan law they possessed successor
`liability claims at the time the § 363 sale closed. Michigan
`law provides that where there is a sale of assets from one
`entity to another such that there exists “a continuity of en-
`terprise between a successor and its predecessor[,] . . . a
`successor [may be forced] to ‘accept the liability with the
`benefits’ of such continuity.” Foster v. Cone-Blanchard
`Mach. Co., 597 N.W.2d 506, 510 (Mich. 1999) (quoting
`Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 883 (Mich.
`1976)).
`
`
`diminution in the value of their property. See Penn. Cent.
`Transp. Co. v. New York City, 438 U.S. 104 (1978).
`
`
`
`CAMPBELL v. UNITED STATES
`
`5
`
`Under Michigan law,
`a prima facie case of continuity of enterprise exists
`where the plaintiff establishes the following facts:
`(1) there is continuation of the seller corporation, so
`that there is a continuity of management, personnel,
`physical location, assets, and general business oper-
`ations of the predecessor corporation; (2) the prede-
`cessor corporation ceases its ordinary business
`operations, liquidates, and dissolves as soon as le-
`gally and practically possible; and (3) the purchasing
`corporation assumes those liabilities and obligations
`of the seller ordinarily necessary for the uninter-
`rupted continuation of normal business operations
`of the selling corporation.
`Id. The plaintiffs’ complaint here sets out facts supporting
`each of these factors. Though the government disputes
`whether the plaintiffs’ successor liability claims constitute
`a cognizable property interest for the purposes of a Fifth
`Amendment taking, we assume, without deciding, that
`they do.
`Here, Old GM filed for bankruptcy on June 1, 2009, and
`filed a motion seeking court approval to sell substantially
`all its assets to a new corporation, referred to as “New GM,”
`pursuant to 11 U.S.C. § 363. In re Gen. Motors Corp., 407
`B.R. 463, 479–80, 483 (Bankr. S.D.N.Y. 2009). To facilitate
`the sale, the government provided financing to Old GM for
`the bankruptcy and the company’s ongoing operations. See
`id. at 473, 479. In return, the government received $8.8
`billion in debt and preferred stock of New GM and approx-
`imately 60 percent of its equity. Id. at 482. According to
`the bankruptcy court, without the government’s financing,
`Old GM would have “face[d] immediate liquidation.” Id. at
`484. According to the plaintiffs’ complaint, “on the eve of
`Old GM’s bankruptcy filing, the [g]overnment . . . condi-
`tion[ed] the closing of the [s]ale on the . . . inclusion of . . .
`
`
`
`6
`
`CAMPBELL v. UNITED STATES
`
`provision[s]” concerning successor liability.3 J.A. 1037; see
`also Appellant Br. 8.
`Because of the government’s insistence, according to
`the complaint, the proposed sale order thus included “a
`number of provisions making explicit findings that New
`GM is not subject to [the plaintiffs’] successor liability
`[claims].” Gen. Motors Corp., 407 B.R. at 500. Those pro-
`visions provide, in relevant part:
`Except for the Assumed Liabilities, . . . the Pur-
`chased Assets shall be transferred to the Purchaser
`. . . free and clear of all liens, claims, encum-
`brances, and other interests of any kind or nature
`whatsoever . . . including rights or claims based on
`any successor or transferee liability . . . .
`[A]ll persons and entities . . . holding liens, claims,
`encumbrances, and other interests of any kind or
`nature whatsoever, including rights or claims
`based on any successor or transferee liability,
`. . . are forever barred, estopped, and permanently
`enjoined . . . .
`J.A. 449–50, ¶¶ 7, 8 (emphases added). Allegedly, the gov-
`ernment’s financing was “expressly conditioned upon ap-
`proval of this motion [seeking approval of the proposed sale
`order] by July 10.” Gen. Motors Corp., 407 B.R. at 484.
`The bankruptcy court approved Old GM’s proposed
`sale order on July 5, 2009, and “permit[ted] GM’s assets to
`pass . . . free and clear of successor liability claims.” Id. at
`505. The court determined that it would not “gamble on
`the notion that the U.S. Government didn’t mean it when
`it said that it would not keep funding GM.” Id. at 493. In
`
`
`3 This is somewhat inconsistent with other allega-
`tions of the complaint stating that extinguishment of the
`plaintiffs’ claims was not important to the government.
`
`
`
`CAMPBELL v. UNITED STATES
`
`7
`
`approving the sale, the court explained that “GM is hope-
`lessly insolvent” and that “if GM liquidates, there will . . .
`be nothing for stockholders . . . [or] unsecured creditors.”
`Id. at 520.
`Paragraph 70 of the sale order provided that the order
`“shall be effective as of 12:00 noon, EDT, on Thursday, July
`9, 2009.” J.A. 475. The § 363 sale closed thereafter on July
`10, 2009.
`
`III
`The plaintiffs appealed the bankruptcy court’s order to
`the United States District Court for the Southern District
`of New York. See In re Motors Liquidation Co., 428 B.R. 43
`(S.D.N.Y. 2010). Somewhat confusingly, the district court
`both affirmed the bankruptcy court’s decision and deter-
`mined that the appeal was moot. Id. at 64. Because the
`plaintiffs had failed to seek a stay of the § 363 sale pending
`appeal, and the § 363 sale had closed, the court concluded
`that the plaintiffs’ appeal was statutorily moot under
`§ 363(m) of the Bankruptcy Code. Id. at 56–60. The court
`entered an order stating that “the appeal is denied as moot,
`and the judgment of the Bankruptcy Court is AFFIRMED.”
`Id. at 64. Though the district court explained that it was
`“not unsympathetic to the plight of the [plaintiffs],” it noted
`that the plaintiffs’ “position in the bankruptcy appears to
`be neither better not worse than that of any other unse-
`cured contingent creditor.” Id. at 63. The district court
`concluded that had the § 363 sale not occurred, Old GM
`would have proceeded to liquidation and the plaintiffs “and
`other unsecured creditors would have received nothing.”
`Id. at 63–64.
`
`IV
`The Claims Court dismissed the plaintiffs’ complaint
`on October 30, 2017, without deciding the question of
`whether the alleged class should be certified. The court
`held that the plaintiffs’ complaint was not timely because
`
`
`
`8
`
`CAMPBELL v. UNITED STATES
`
`it was not filed within the Tucker Act’s six-year statute of
`limitations. In reaching this conclusion, the court stated
`that “[t]he complaint’s specific references to government
`coercive action . . . all point to activity that predates the
`Sale Order issued by the bankruptcy court.” J.A. 7. In
`other words, the court determined that the plaintiffs’ tak-
`ings claim had accrued, at the latest, on July 5, 2009—more
`than six years before the date on which the plaintiffs filed
`their complaint in the Claims Court.
`In the alternative, the Claims Court held that dismis-
`sal was proper because the plaintiffs had failed to identify
`a cognizable property interest. It characterized the plain-
`tiffs’ successor liability claims as being “too contingent” to
`compose a property interest that would be subject to a com-
`pensable taking under the Fifth Amendment. J.A. 18 The
`court explained that the plaintiffs’ purported property in-
`terests were “entirely contingent upon two discretionary
`acts of the federal government: (1) a government financial
`intervention so that a New GM could be created; and[] (2)
`a government intervention so that Old GM could file for
`bankruptcy requesting a 363 sale.” J.A. 18. The Claims
`Court also concluded that the plaintiffs lacked a cognizable
`property interest because § 363 predated the creation of
`the plaintiffs’ purported property interests (the successor
`liability claims) and therefore that the possibility of extin-
`guishment in bankruptcy “inhered” in the title to the plain-
`tiffs’ claims. J.A. 22. The court did not reach the question
`of whether the plaintiffs had sufficiently alleged a diminu-
`tion in the value of their property as a result of the govern-
`ment’s action.
`On November 27, 2017, the plaintiffs filed in the
`Claims Court a combined motion for reconsideration, mo-
`tion to amend the judgment, and motion for leave to file a
`second amended complaint. The proposed second amended
`complaint, in the words of the Claims Court, “reshaped[d]
`the description of plaintiffs’ takings claims and the facts
`already alleged” and contained additional
`factual
`
`
`
`CAMPBELL v. UNITED STATES
`
`9
`
`allegations. J.A. 24. The plaintiffs added facts purporting
`to demonstrate that government coercion continued after
`the bankruptcy court entered the § 363 sale order. The
`plaintiffs’ complaint essentially added more detail about
`the government’s claimed pressure on the bankruptcy
`court and the district court. The Claims Court considered
`the alleged facts presented in the plaintiffs’ second
`amended complaint but determined that the revised alle-
`gations were insufficient to change the result and denied
`the motion, reaffirming both of its initial grounds for dis-
`missing the plaintiffs’ complaint.
`The plaintiffs appealed to this court.4 We have juris-
`diction under 28 U.S.C. § 1295(a)(3). We review the Claims
`Court’s decision to dismiss for lack of jurisdiction de novo.
`Diaz v. United States, 853 F.3d 1355, 1357 (Fed. Cir. 2017).
`DISCUSSION
`I
`We agree with the Claims Court that the plaintiffs’
`complaint was untimely insofar as the complaint alleged
`coercion of Old GM. The Tucker Act’s statute of limitations
`provides that “[e]very claim of which the United States
`Court of Federal Claims has jurisdiction shall be barred
`unless the petition thereon is filed within six years after
`such claim first accrues.” 28 U.S.C. § 2501. The Supreme
`Court has held that the Claims Court’s six-year statute of
`limitations is jurisdictional. See John R. Sand & Gravel
`Co. v. United States, 552 U.S. 130 (2008).
`The plaintiffs here filed their complaint alleging Fifth
`Amendment takings claims in the trial court on July 9,
`
`
`4 We note that the government’s brief before this
`court does not comply with Federal Rule of Appellate Pro-
`cedure 32(a)(1)(A) because it was filed double-, rather than
`single-sided.
`
`
`
`10
`
`CAMPBELL v. UNITED STATES
`
`2015. The question is when the alleged taking occurred.
`The plaintiffs alleged in their complaint, and reaffirmed
`during oral argument, that the primary conduct which
`caused the taking was the government’s coercion of Old GM
`to secure approval from the bankruptcy court of a proposed
`sale order extinguishing the plaintiffs’ successor liability
`claims. Specifically, the plaintiffs alleged that the govern-
`ment “directed” that the sale order “exclude all Personal
`Injury Products Liability Claims.” J.A. 398, ¶ 83. In other
`words, that the government “condition[ed] the closing of
`the Sale on inclusion of a provision within the Sale Order
`that expressly extinguished the rights of any Personal In-
`jury Claimant to assert successor liability claims against
`New GM.” J.A. 403, ¶ 107. The plaintiffs contended that
`Old GM was “[l]eft with no option but to comply with the
`[g]overnment’s mandate or face certain liquidation,” and
`Old GM consequently filed for bankruptcy and submitted
`to the bankruptcy court a proposed sale order that “left be-
`hind the [plaintiffs’] Personal Injury Products Liability
`Claims.” J.A. 399–400, ¶¶ 88, 98. In light of these allega-
`tions, we focus our accrual analysis on the government’s
`alleged coercion of Old GM.
`The parties present three possible dates on which the
`plaintiffs’ takings claims may have accrued. The govern-
`ment argues that the claims accrued at least on July 5,
`2009, when the bankruptcy court approved and entered the
`sale order (“Entry Date”). The plaintiffs argue to the con-
`trary that their claims did not accrue until either July 9,
`2009, the date on which the § 363 sale became effective
`(“Effective Date”), or July 10, 2009, the date on which the
`§ 363 sale closed (“Closing Date”). The plaintiffs contend
`that the Entry Date cannot constitute the date on which
`their claims accrued because the value of the plaintiffs’ suc-
`cessor liability claims had not yet been extinguished as of
`July 5, 2009. We conclude that under the plaintiffs’ theory
`as to the coercion of Old GM, the alleged taking occurred
`
`
`
`CAMPBELL v. UNITED STATES
`
`11
`
`on July 1, 2009—when Old GM filed the proposed sale or-
`der with the bankruptcy court.
`The standards for claim accrual in physical takings and
`regulatory takings cases are distinct, and this distinction
`is important. As the Supreme Court has held, “it [is] inap-
`propriate to treat cases involving physical takings as con-
`trolling precedents for the evaluation of a claim that there
`has been a ‘regulatory taking’, and vice versa.” Tahoe-Si-
`erra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535
`U.S. 302, 323 (2002) (footnote omitted).
`In the case of a physical taking, claim accrual is rela-
`tively simple to pinpoint. “A physical taking generally oc-
`curs when the government directly appropriates private
`property or engages in the functional equivalent of a ‘prac-
`tical ouster of [the owner’s] possession.’” Katzin v. United
`States, 908 F.3d 1350, 1361 (Fed. Cir. 2018) (alteration in
`original) (quoting Washoe Cty. v. United States, 319 F.3d
`1320, 1326 (Fed. Cir. 2003)); see United States v. Dow, 357
`U.S. 17, 24–25 (1958) (occupation of property signaled
`claim accrual, not the later transfer of a deed). For exam-
`ple, in Casitas Municipal Water District v. United States,
`708 F.3d 1340 (Fed. Cir. 2013), this court held that the
`plaintiffs’ physical takings claim had accrued not when the
`National Marine Fisheries Service issued an opinion,
`which, if followed, would have resulted in the diversion of
`some of the plaintiffs’ water, but rather whenever an actual
`diversion of water occurred. Id. at 1358–59; see also Nw.
`La. Fish & Game Pres. Comm’n v. United States, 446 F.3d
`1285, 1290–91 (Fed. Cir. 2006) (where the damage of a pur-
`ported physical taking occurs by a continuing process of
`physical events, the damages must be “quantifiable and
`present”).
`In the case of a regulatory taking, however, the taking
`may occur before the effect of the regulatory action is felt
`and actual damage to the property interest is entirely de-
`terminable. As the Supreme Court recently stated in a
`
`
`
`12
`
`CAMPBELL v. UNITED STATES
`
`regulatory takings case, “a property owner has a claim for
`a violation of the Takings Clause as soon as [the] govern-
`ment takes his property for public use without paying for
`it” without regard to post-taking remedies that may be
`available. Knick v. Township of Scott, 139 S. Ct. 2162, 2170
`(2019). In other words, “because a taking without compen-
`sation violates the self-executing Fifth Amendment at the
`time of the taking, the property owner can bring a federal
`suit at that time.” Id. at 2172. For example, in Branch v.
`United States, 69 F.3d 1571 (Fed. Cir. 1995), a bankruptcy
`trustee challenged the FDIC’s assessment of liability and
`consequent seizure of a bank’s assets pursuant to the Fi-
`nancial Institutions Reform, Recovery, and Enforcement
`Act. Id. at 1574. This court held that “[t]he seizure and
`closure of [a] bank, once the bank became insolvent, did not
`constitute a taking.” Id. at 1575. Rather, it was the
`“FDIC’s assessment of liability,” which directly caused the
`insolvency, that was the purported taking and therefore
`marked the date of accrual. Id.
`In Goodrich v. United States, 434 F.3d 1329 (Fed. Cir.
`2006), a regulatory takings case, the question was whether
`the issuance of a Forest Service Record of Decision (“ROD”)
`and a final Environmental Impact Statement (“EIS”) re-
`sulted in accrual of the plaintiff’s takings claim. Id. at
`1331. We held that it did. We determined that the ROD
`and final EIS were sufficiently final to accrue takings lia-
`bility because they “are final agency statements of official
`position that are published [by the agency] only after years
`of analysis and consultation with affected parties.” Id. at
`1335. We explained that the claim accrues when the
`agency action is complete, “regardless of whether damages
`are ‘complete and fully calculable.’” Id. at 1336 (quoting
`Fallini v. United States, 56 F.3d 1378, 1382–83 (Fed. Cir.
`1995)). Here, assuming that the plaintiffs’ claims had
`value in the first place, despite the likelihood of no recovery
`if Old GM had liquidated, the filing of the proposed
`
`
`
`CAMPBELL v. UNITED STATES
`
`13
`
`bankruptcy sale order clearly inflicted an injury on the
`plaintiffs by diminishing the value of their claimed prop-
`erty rights.
`Notably, the court in Goodrich made clear that where
`a regulatory taking is alleged, it is the final decision of the
`government actor alleged to have caused the taking that
`triggers accrual of a takings claim, not the ultimate impact
`of that decision. In Goodrich, though “it took the Forest
`Service over three years to implement [the ROD] transfer-
`ring Kennedy’s cattle to the Whitetail Allotment”—i.e., for
`the government’s decision to be implemented—the court
`nevertheless determined that the issuance of the ROD, ra-
`ther than the physical appropriation by cattle of water was
`“a better place to deem any taking occurred.” Id.
`The plaintiffs argue that the government’s pressure of
`Old GM was not complete (that is, not “final”) at the Entry
`Date. According to the plaintiffs, the government could
`have changed its mind regarding the plaintiffs’ successor
`liability claims at any point before the § 363 sale closed on
`July 10, 2009. But the plaintiffs do not cite any authority
`in support of their theory that a government actor’s ability
`to change its mind prevents claim accrual. To the contrary,
`in Ladd v. United States, 630 F.3d 1015, 1023–24 (Fed. Cir.
`2010); Barclay v. United States, 443 F.3d 1368, 1378 (Fed.
`Cir. 2006), cert. denied, 549 U.S. 1209 (2007); and Caldwell
`v. United States, 391 F.3d 1226, 1234–35 (Fed. Cir. 2004),
`cert. denied, 546 U.S. 826 (2005), in the context of an al-
`leged physical taking effected by an action taken pursuant
`to the National Trail Systems Act, we held that the govern-
`ment’s issuance of Notices of Interim Trail Use or Aban-
`donment (“NITUs”) effected a taking even though the
`NITUs could have been vacated by the agency or set aside
`by a court.
`Similarly, in Cuban Truck & Equipment Co. v. United
`States, 333 F.2d 873 (Ct. Cl. 1964), our predecessor court
`rejected a somewhat similar theory. There the plaintiffs
`
`
`
`14
`
`CAMPBELL v. UNITED STATES
`
`asserted a takings claim seeking compensation for the
`value of certain vehicles. Id. at 875. The alleged taking
`was effected when the German government (at the insist-
`ence of the United States) directed a quasi-public company
`in possession of the vehicles to “exclude from sale or deliv-
`ery [those vehicles] at its depots” (“the freeze”). Id. at 878
`(footnote omitted). The takings claim was held to accrue
`on the date of the freeze. The plaintiffs argued for a later
`accrual date because the German government could have
`unilaterally decided to lift the freeze. Id. at 879. Our pre-
`decessor court held that this possibility did not impact the
`date of accrual. Id. Though Ladd, Barclay, Caldwell, and
`Cuban Truck are physical takings cases, we conclude that
`their reasoning is equally applicable in the regulatory tak-
`ings context. The possibility that the government or a third
`party would change its mind does not affect the date on
`which the plaintiffs’ takings claims accrued.
`Such a takings theory, moreover, would be unworkable.
`Agencies generally have broad power to reconsider their
`decisions. Medtronic, Inc. v. Robert Bosch Healthcare Sys.,
`Inc., 839 F.3d 1382, 1385 (Fed. Cir. 2016). Thus, determin-
`ing accrual based on the possibility the government actor
`would change its mind would make the date of accrual en-
`tirely indeterminate in many situations.
`The plaintiffs also contend that the Entry Date cannot
`serve as the date of accrual because the order “could have
`been overturned in advance of the ‘Effective Date’ by a
`‘higher body’ (i.e., the District Court at the July 9, 2009
`hearing on whether to stay the effectiveness of the Sale Or-
`der[)].” Appellant Br. 23. We disagree. This argument ig-
`nores the fact that the government action purported to
`have effected a taking is the government’s coercion of Old
`GM, not the bankruptcy court’s order. Any action by the
`bankruptcy court or any higher judicial body merely goes
`to the ultimate effect of the alleged government taking.
`Such collateral action does not alter the finality of the gov-
`ernment’s action for the purpose of accrual of a takings
`
`
`
`CAMPBELL v. UNITED STATES
`
`15
`
`claim. See Palazzolo v. Rhode Island, 533 U.S. 606, 618
`(2001) (“The central question in resolving the ripeness is-
`sue . . . is whether petitioner obtained a final decision from
`the [government] determining the permitted use for the
`land.”); Williamson Cty. Reg’l Planning Comm’n v. Hamil-
`ton Bank of Johnson City, 473 U.S. 172, 186 (1985) (“[A]
`claim that the application of government regulations ef-
`fects a taking of a property interest is not ripe until the
`government entity charged with implementing the regula-
`tions has reached a final decision regarding the application
`of the regulations to the property at issue.”). As the Su-
`preme Court in Williamson made clear, “the finality re-
`quirement
`is concerned with whether
`the
`initial
`decisionmaker has arrived at a definitive position on the
`issue that inflicts an actual, concrete injury.”5 473 U.S. at
`193 (emphasis added).
`
`II
`The plaintiffs also argue that the government effected
`a taking by pressuring the bankruptcy court and the dis-
`trict court to approve the proposed sale order, citing color-
`ful language from a book by Steve Rattner (the leader of
`the government team responsible for assessing the viabil-
`ity of Old GM’s restructuring plans) that the government’s
`threats were “‘the financial equivalent of holding a gun to
`the head’ of the courts.” Appellant Br. 5, 12. These actions
`allegedly occurred during the bankruptcy court’s and dis-
`trict court’s consideration of the proposed sale order, i.e.,
`within the limitations period. But the coercion that could
`give rise to a regulatory takings claim does not include “co-
`ercion” of the court system by making an argument for a
`particular result. It is well established that the Claims
`Court “cannot entertain a taking[s] claim that requires the
`court to scrutinize the actions of another tribunal.” Petro-
`
`5 This aspect of Williamson remains good law under
`Knick. See 138 S. Ct. 2162 (2019).
`
`
`
`16
`
`CAMPBELL v. UNITED STATES
`
`Hunt, L.L.C. v. United States, 862 F.3d 1370, 1386 (Fed.
`Cir. 2017) (alteration in original) (quoting Shinnecock In-
`dian Nation v. United States, 782 F.3d 1345, 1353 (Fed.
`Cir. 2015)); accord Allustiarte v. United States, 256 F.3d
`1349, 1351–52 (Fed. Cir. 2001).
`In Allustiarte, we considered a similar claim that sev-
`eral plaintiffs had suffered a “taking of their property at
`the hands of the bankruptcy trustees and courts.” 256 F.3d
`at 1351. We held that the Claims Court lacked jurisdiction
`over such an action because it “would require the court to
`scrutinize the actions of the bankruptcy trustees and
`courts” and we noted that “permit[ting such] collateral at-
`tacks on bankruptcy court judgments would ‘seriously un-
`dercut[ ] the orderly process of the law.’” Id. at 1351–52
`(second alteration in original) (quoting Celotex Corp. v. Ed-
`wards, 514 U.S. 300, 313 (1995)). We explained that “[t]he
`proper forum for [the plaintiffs’] challenges . . . lies in the
`Ninth Circuit [the appropriate appellate forum in Allusti-
`arte], not the [Claims Court].” Id. at 1352.
`The same reasoning applies here. The plaintiffs’ alle-
`gations that the government coerced the bankruptcy court
`and the district court amount to no more than a mine-run
`challenge to the bases for those court’s decisions regarding
`the sale order. The supposed coercion here was not extra-
`judicial, as was the case in A & D. The plaintiffs cannot
`maintain a collateral attack on the decisions of the bank-
`ruptcy court and district court on a takings theory. The
`proper forum for such a challenge is the judicial appellate
`process.
`To the extent that the plaintiffs argue that there was a
`taking because § 363 did not permit the extinguishment of
`their successor liability claims, we disagree that this is a
`cognizable takings action. As we held in Lion Raisins, Inc.
`v. United States, 416 F.3d 1356 (Fed. Cir. 2005), a plain-
`tiff’s claim that “it is entitled to prevail because the agency
`acted in violation of a statute . . . [does] not give the
`
`
`
`CAMPBELL v. UNITED STATES
`
`17
`
`plaintiff the right to litigate that issue in a takings action
`rather than in the congressionally mandated . . . review
`proceeding.” Id. at 1369 (emphasis omitted) (quoting Rith
`Energy, Inc. v. United States, 247 F.3d 1355, 1366 (Fed.
`Cir. 2001)); see also Petro-Hunt, 862 F.3d at 1386.6 We see
`no difference, in this regard, between a takings claim based
`on an agency action allegedly in violation of a statute and
`that of a federal court. Again, the plaintiffs’ remedy based
`on their challenge to the lawfulness of the § 363 sale was
`to pursue their successor liability claims through the usual
`
`6 We note that the circuits appear to be split on the
`issue of whether a bankruptcy court has authority to extin-
`guish successor liability claims pursuant to a § 363 sale.
`Compare Precision Indus., Inc. v. Qualitech Steel SBQ,
`LLC, 327 F.3d 537, 545–46 (7th Cir. 2003) (concluding that
`the “right to possess . . . property as a lessee qualifies as an
`interest for the purposes of section 363(f)” but limiting the
`definition of “interest” to include only a “right to the prop-
`erty itself” rather than “a right that is connected to or aris-
`ing from the property”); and In re Wolverine Radio Co., 930
`F.2d 1132, 1147 n.23 (6th Cir. 1991) (questioning whether
`“general unsecured interests fall within the scope of those
`interests that can be discharged pursuant to section
`363(f)”), with In re Trans World Airlines, Inc., 322 F.3d 283,
`288–93 (3d Cir. 2003) (citing 3 Collier on Bankrupt