Whether the novel Federal Circuit 'but for' defense to takings liability conflicts with precedents

QUESTIONS PRESENTED During the liquidity crisis of 2008-09, the United States determined the public interest required ‘saving’ Chrysler and General Motors because they were too important to fail. Believing each would be more profitable with fewer dealers, the Government’s restructuring plans required the confiscation of large numbers of General Motors and Chrysler dealer franchises. Petitioners’ franchise rights to sell branded vehicles, parts, and service in exclusive territories were terminated and gifted to other dealers who the Government assumed would operate more productively, thereby benefitting the public. Believing state laws prohibited those dealership terminations without compensation, the Government executed a bankruptcy strategy to circumvent paying for the dealerships being taken while concomitantly blocking dealers from purchasing each other in the free market. The Court of Federal Claims (“CFC”) upheld this uncompensated property seizure on two grounds: that the Chrysler dealers’ property would have been worthless because their franchise contracts would have been rejected in bankruptcy if the Government had not intervened during the liquidity crisis and that the Government was not legally responsible for the actions of Chrysler. The Federal Circuit affirmed the former and declined to address the latter. THE CENTRAL QUESTIONS PRESENTED ARE: 1. Whether the novel Federal Circuit ‘but for’ defense to takings liability conflicts with Ark. Game & Fish Comm'n v. United States, 568 U.S. 23 (2012) (categorical defenses are barred in takings cases), Horne v. Dept. of Agric., 576 U.S. 351 (2015) (hypothetical anal ii ysis is not permitted to bar takings liability), Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (ad hoc balancing factors are required in regulatory takings cases), and Tahoe-Sterra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) (regulatory takings requirements may not be imported into direct takings cases), as reiterated in Cedar Point Nursery v. Hassid, 210 L.Ed.2d 369 (2021)? 2. Whether the dismissal of the direct takings claims that were not even defended by the Government —on a ground it never raised—departs so far from the accepted and usual course of judicial proceedings that the exercise of the Court’s supervisory power is justified because it contradicts the controlling precedents of United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020) (party presentation rule), Day v. McDonough, 547 U.S. 198 (2006) (entitlement to be heard before a court rules upon sua sponte defenses it injected for the Government), and Murr v. Wisconsin, 137 S.Ct. 1933 (2017) (fairness is required in takings cases)? 3. Whether the affirmance of the economic valuation decisions conflicts with the holding of Mission Product Holdings Inc. v. Tempnology LLC, 139 S.Ct. 1652 (2019) (franchisee rights are not rendered worthless by rejection in bankruptcy) and Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) (proof of fair market value is not required in cases of economic emergency)?