Sample documents · Issue E1. Takings
Template. Sample template for use by or with a licensed attorney. Not legal advice. Laws differ by jurisdiction and change; adapt the document to your facts and check every citation before relying on it.
When to use. The government asks to examine, take, or transfer material a client holds and claims to own. Not for: Government-furnished property, which belongs to the government.
Deadlines. Send before any transfer. Tucker Act claims within six years (28 U.S.C. §2501).
2 pages, laid out as in the PDF and Word downloads. Select a page to open the PDF at that page.
[Counsel letterhead]
[Date]
[Requesting official / agency] [cc: Agency General Counsel; U.S. Attorney’s Office, Civil Division (if litigation is anticipated)]
Re: [Client]’s property: [general description of material]; request dated [date]
Dear [Name]:
I represent [client], who holds [general, unclassified description of material] (the “Material”). We received your request dated [date] to [examine / take custody of / transfer] the Material.
1. Ownership. [Client] claims ownership of the Material, which [client] [found on (client’s land) on (date) / acquired by purchase from (seller) on (date) / inherited from (person)]. Documentation of provenance and chain of custody is available [and enclosed in redacted form]. [If a contract may be relevant, describe and state position: e.g., the Material was not furnished by the Government and was acquired with company funds outside any contract.]
2. Cooperation. [Client] is willing to make the Material available for non-destructive examination under a written agreement that (a) confirms the examination does not transfer title or possession; (b) specifies the location, duration, personnel, and methods; (c) prohibits destructive testing without written consent; (d) provides [client] with copies of results to the extent consistent with law; and (e) preserves all rights.
3. Reservation of rights. If the United States takes possession of, or title to, the Material, or restricts [client]’s use of it, [client] will seek just compensation under the Fifth Amendment. Horne v. Department of Agriculture, 576 U.S. 350, 359-61 (2015). Nothing in [client]’s cooperation is a gift, abandonment, waiver, or consent to a taking without compensation. [If H.R. 8800 §1767 or a successor provision is enacted, reference it.]
4. Requests. Please identify (a) the legal authority for the request; (b) whether the United States claims title to the Material and, if so, the basis; (c) whether any portion of the request or examination is classified and, if so, how [client] and counsel will be informed of decisions affecting the Material; and (d) a contact for negotiating an examination agreement.
4A. Seizure as evidence. [If the government asserts that it holds or will hold the Material as evidence:] Property seized and retained under the police power is generally not taken for public use. AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008). That rule does not apply here, because [no criminal or civil investigation of (client) or of the Material has been identified / the investigation identified in your letter has ended / the request seeks the Material for scientific study and exploitation, which is a public use]. If the United States contends that it holds the Material as evidence, please identify the investigation and the proceeding in which it will be used, and confirm that the Material will be returned when that proceeding ends. [Client] will treat retention after that point, or use of the Material for study, testing, or exploitation, as a taking.
5. Preservation. [Client] is preserving the Material and all related records. Please preserve all records relating to the Material, which may also be “unidentified anomalous phenomena records” under Pub. L. No. 118-31, §1842.
Sincerely, [Counsel]