Epstein Amicus Pushes Takings Clause into Pension Territory in King v. United States

February 19, 2026

Does a per se takings rule apply when the federal government authorizes one private party to appropriate another's vested right to payment of money? That is the question a newly filed amicus brief by NYU law professor Richard Epstein and the Manhattan Institute puts before the Court in a pending petition arising from the Multiemployer Pension Reform Act of 2014.

The facts are straightforward and the stakes are real. William King and his fellow class members earned vested pension rights through decades of work covered by a multiemployer plan governed by ERISA. When the plan became severely underfunded, the trustees applied to the Treasury Department under the MPRA for authorization to reduce benefits. Treasury approved. The plan then rewrote its governing agreement, cutting each petitioner's monthly pension by more than $1,000. The retirees sued in the Court of Federal Claims, arguing the government-sanctioned appropriation of their vested payment rights was an uncompensated taking. The Claims Court found a cognizable property interest but applied the Penn Central balancing test and ruled against the retirees. The Federal Circuit affirmed, declining to treat the government's authorization of the cuts as a per se physical taking and holding that the partial benefit reduction did not satisfy Penn Central's requirements.

The cert petition frames the issue as a gap in the Court's takings jurisprudence. Cedar Point Nursery v. Hassid (2021), No. 20-107, reaffirmed that a government-authorized physical appropriation of property is a per se taking regardless of its duration or economic impact. Petitioners argue the same logic should govern government-authorized appropriation of a vested monetary entitlement: when the state uses its power to sanction a private party's seizure of another's property right, the categorical rule applies and Penn Central balancing drops out entirely.

That is precisely the thesis that has animated Professor Epstein's scholarship for four decades—and one this author encountered firsthand as his property law student, a course I find myself teaching again this semester. His 1985 book Takings argued that the Clause reaches far beyond physical seizures of land and that government-compelled redistribution of vested private rights—whether in property, contract, or money—triggers compensation requirements. Today's amicus, filed by Gabriel Latner of Advocan Law on behalf of Epstein and the Manhattan Institute, sharpens that argument for this specific context: the MPRA did not regulate the pension plan's conduct—it authorized an appropriation of existing entitlements from one class of beneficiaries to prop up the plan for others. Petitioner Noah A. Messing of Messing & Spector represents the class, with Solicitor General D. John Sauer responding for the government. SCOTUSblog has the full docket, and the JDSupra analysis of the Federal Circuit ruling covers the lower court proceedings in detail.

The petition is distributed once the government files its response by March 23. Whether the Court sees this as a vehicle to address government-authorized third-party takings of intangible property rights—or treats it as a regulated-industries case best left to Penn Central—will say a great deal about how far Cedar Point's categorical logic extends.