Petition for Writ of Certiorari — Thomas Gearing, et al., Petitioners v. City of Half Moon Bay, California

Supreme Court briefJun 1, 2023

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No. ____

In The

Supreme Court of the United States

____________________

THOMAS GEARING and

DANIEL GEARING,

Petitioners,

CITY OF HALF MOON BAY,

Respondent.

____________________

On Petition for Writ of Certiorari to

the U.S. Court of Appeals for the Ninth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

KRISTEN DITLEVSEN RENFRO

Of Counsel

Desmond, Nolan, Livaich

& Cunningham

1830 15th Street

Sacramento, CA 95811

DEBORAH J. LA FETRA

Counsel of Record

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall, Ste. 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

DLaFetra@pacificlegal.org

Counsel for Petitioners

Question Presented

Thomas and Daniel Gearing are categorically

prohibited from building on residentially zoned vacant

land that the City of Half Moon Bay prefers as an open

space public park. They exercised their choice of forum

by filing a lawsuit in federal court under 42 U.S.C. §

1983, alleging a regulatory taking in violation of the

Fifth Amendment, and seeking just compensation,

costs, and attorneys’ fees. The City responded by filing

an eminent domain lawsuit in state court that

significantly limits the issues and the Gearings’

remedies. The City then convinced the federal court to

abstain from deciding the Gearings’ first-filed federal

lawsuit under Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496 (1941). As a result of the

forthcoming state court decision to which federal

courts are bound to give full faith and credit, 28 U.S.C.

§ 1738, the Gearings will be deprived of full just

compensation as well as other recovery authorized by

the Civil Rights Act.

The question presented is:

Whether federal courts may deprive takings

claimants of their chosen forum by invoking the

prudential Pullman abstention doctrine to require

them to first litigate their claims in state court.

Parties to the Proceedings and Rule 29.6

Petitioners Thomas A. Gearing and Daniel

Gearing were the plaintiffs and appellants below.

Respondent City of Half Moon Bay was the

defendant and appellee below.

Related Proceedings

Gearing v. City of Half Moon Bay, No. 21-16688,

U.S. Court of Appeals for the Ninth Circuit, Judgment

filed and entered Dec. 8, 2022.

Gearing v. City of Half Moon Bay, No. 3:21-cv01802-EMC, U.S. District Court for the Northern

District of California, Order issued Sept. 13, 2021.

City of Half Moon Bay v. Gearing, No. 21-CIV01560, Superior Court for the State of California,

County of San Mateo, Complaint filed Mar. 23, 2021.

iii

Table of Contents

Question Presented...................................................... i

Parties to the Proceedings and Rule 29.6 .................. ii

Related Proceedings.................................................... ii

Table of Authorities ................................................... vi

Petition for a Writ of Certiorari ................................. 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional and Statutory

Provisions At Issue ................................................ 1

Introduction and Summary of Reasons for Granting

the Petition ............................................................ 2

Statement of the Case ................................................ 5

The Gearings’ property ............................... 5

The City categorically refused to

permit the Gearings to build homes on

their land..................................................... 7

The proceedings below ................................ 9

Reasons For Granting the Petition .......................... 14

This Court Should Reconsider Pullman

Abstention in Takings Cases Because It

Prevents Property Owners from Obtaining

the Full Measure of Just Compensation ...... 14

The origins of Pullman abstention........... 14

This Court’s variable use of

Pullman abstention .................................. 16

Pullman abstention in takings cases

deprives property owners of

just compensation ..................................... 18

II.

Pullman abstention  Williamson County

 Pullman abstention again.................... 23

Lower Courts Conflict as to Whether and

When Pullman Abstention Applies in Land

Use Cases ...................................................... 25

Circuit courts apply inconsistent

tests to determine when Pullman

abstention applies ..................................... 26

Circuit courts conflict as to

whether Pullman abstention

applies in takings cases ............................ 28

III. The Constitution Protects Property Rights,

Not Government Convenience...................... 29

Civil rights plaintiffs with takings claims

are entitled to choose their forum ............ 29

Government uses abstention as a means to

grind down property owners with endless

litigation .................................................... 32

Conclusion ................................................................. 35

Appendix

Opinion of the U.S. Court of Appeals for the Ninth

Circuit, dated Dec. 8, 2022 .............................App.1

Order of the U.S. District Court for the District of

Northern California, granting Defendant’s Motion

to Abstain, and staying case,

dated Sept. 13, 2021 .....................................App.14

Opinion of the U.S. Court of Appeals for the Ninth

Circuit, denying Petition for Rehearing and

Rehearing En Banc,

dated Jan. 17, 2023 ......................................App.41

Complaint for Damages for Violation of Civil Rights,

filed in the U.S. District Court for the District of

Northern California,

dated March 15, 2021 ...................................App.42

Defendant City of Half Moon Bay Notice of Probable

Compensation, filed in the Superior Court of the

State of California, County of San Mateo, dated

April 8, 2021, filed April 29, 2021 ................App.61

Defendant City of Half Moon Bay Answer to

Complaint, excerpts, filed in the U.S. District

Court for the District of Northern California,

dated April 27, 2021 .....................................App.63

Table of Authorities

Page(s)

Cases

Allen v. McCurry,

449 U.S. 90 (1980) ............................................. 32

Antosh v. Village of Mount Pleasant,

No. 22-0117, 2023 WL 2465920

(E.D. Wis. Mar. 10, 2023) .................................. 32

Ariyan, Inc. v. Sewerage & Water Bd. of

New Orleans, 29 F.4th 226

(5th Cir. 2022).................................................... 17

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ............................................. 35

Arrigoni Ent., LLC v. Town of Durham, 136

S.Ct. 1409 (2016) ............................................... 33

Artway v. Attorney Gen. of N.J.,

81 F.3d 1235 (3d Cir. 1996) ............................... 26

Axon Enterprise, Inc. v. Federal Trade

Comm’n, 143 S.Ct. 890 (2023) ....................... 5, 16

Babbitt v. United Farm Workers Nat.

Union, 442 U.S. 289 (1979) ............................... 17

Baggett v. Bullitt,

377 U.S. 360 (1964) ........................................... 16

Bank of Am. Nat’l Trust & Sav. Ass’n v.

Summerland Cnty. Water Dist.,

767 F.2d 544 (9th Cir. 1985) ............................. 23

Batterman v. Leahy,

544 F.3d 370 (1st Cir. 2008) .............................. 27

vii

Beavers v. Ark. State Bd. of Dental Exam’rs,

151 F.3d 838 (8th Cir. 1998) ............................. 27

Bell v. Hood,

327 U.S. 678 (1946) ........................................... 32

Bernhardt v. Polygraphic Co. of America,

350 U.S. 198 (1956) ........................................... 20

Boraas v. Village of Belle Terre,

476 F.2d 806 (2d Cir. 1973), rev’d, 416

U.S. 1 (1974) ...................................................... 21

Brown v. Freedman Baking Co., Inc.,

810 F.2d 6 (1st Cir. 1987) .................................. 21

C-Y Dev. Co. v. City of Redlands,

703 F.2d 375 (9th Cir. 1983) ............................. 22

Carroll v. City of Mount Clemens,

139 F.3d 1072 (6th Cir. 1998) .......................... 33

Chez Sez III Corp. v. Township of Union,

945 F.2d 628 (3d Cir. 1991) ............................... 26

City of Houston v. Hill,

482 U.S. 451 (1987) ........................................... 18

City of San Diego v. Rancho Penasquitos

P’ship, 105 Cal.App.4th 1013 (2003)................... 4

Clajon Production Corp. v. Petera,

70 F.3d 1566 (10th Cir. 1995) ........................... 28

Confederated Tribes of Colville Reservation

v. U.S., 964 F.2d 1102 (Fed. Cir. 1992)............. 21

Congregation Kol Ami v. Abington Twp.,

309 F.3d 120 (3d Cir. 2002) ............................... 22

Cnty. of Allegheny v. Frank Mashuda Co.,

360 U.S. 185 (1959) ........................................... 35

viii

Customer Co. v. City of Sacramento,

10 Cal.4th 368 (1995) ........................................ 11

Educ. Servs., Inc. v. Md. State Bd. for

Higher Educ.,

710 F.2d 170 (4th Cir. 1983) ............................. 27

EHOF Lakeside II, LLC v. Riverside Cnty.

Transp. Comm’n,

826 F.App’x 669 (9th Cir. 2020) ........................ 25

England v. La. State Bd. of Med. Exam’rs,

375 U.S. 411 (1964) ............................... 12, 13, 31

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) ............................................. 35

Fideicomiso de la Tierra del Cano Marin

Pena v. Fortuno,

604 F.3d 7 (1st Cir. 2010) ............................ 28, 29

Gearing v. City of Half Moon Bay,

54 F.4th 1144 (9th Cir. 2022) .............................. 1

George v. Parratt,

602 F.2d 818 (8th Cir. 1979) ............................. 28

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) .............................. 20

Harris Cnty. Comm’rs Court v. Moore,

420 U.S. 77 (1975) ....................................... 16, 34

Harrison v. NAACP,

360 U.S. 167 (1959) ........................................... 16

Hawaii Housing Auth. v. Midkiff,

467 U.S. 229 (1984) ........................................... 25

Heck v. Humphrey,

512 U.S. 477 (1994) ........................................... 11

Hodel v. Irving,

481 U.S. 704 (1987) ........................................... 21

Jones v. Coleman,

848 F.3d 744 (6th Cir. 2017) ....................... 18, 34

Kansas Judicial Review v. Stout,

519 F.3d 1107 (10th Cir. 2008) ......................... 26

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ............ 3, 11, 18, 24, 25, 31

Kusper v. Pontikes,

414 U.S. 51 (1973) ............................................. 17

Landgate v. Cal. Coastal Comm’n,

17 Cal.4th 1006 (1998) ...................................... 17

Lapides v. Bd. of Regents,

535 U.S. 613 (2002) ........................................... 33

Lehman v. City of Louisville,

967 F.2d 1474 (10th Cir. 1992) ......................... 28

Lumbard v. City of Ann Arbor,

913 F.3d 585 (6th Cir. 2019) ............................... 5

Maui Vacation Rental Ass’n, Inc. v. Maui

Cnty. Planning Dep’t,

501 F.Supp.3d 948 (D. Haw. 2020) ................... 22

Meredith v. City of Winter Haven,

320 U.S. 228 (1943) ........................................... 21

Meredith v. Talbot Cnty.,

828 F.2d 228 (4th Cir. 1987) ............................. 29

Merritts v. Richards,

62 F.4th 764 (3d Cir. 2023) ............................... 17

Mireles v. Crosby Cnty.,

724 F.2d 431 (5th Cir. 1984) ............................. 27

Mitchum v. Foster,

407 U.S. 225 (1972) ........................................... 18

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) ........................................ 20

Newport Invs., Inc. v. City of Laguna Beach,

564 F.2d 893 (9th Cir. 1977) ............................. 23

Nickerson v. Thomson,

504 F.2d 813 (7th Cir. 1974) ............................. 24

Ohio Bureau of Emp. Servs. v. Hodory,

431 U.S. 471 (1977) ........................................... 17

Owen v. City of Independence,

445 U.S. 622 (1980) ........................................... 30

Pakdel v. City and Cnty. of San Francisco,

141 S.Ct. 2226 (2021) .............................. 3, 11, 18

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 4

Patel v. City of Los Angeles,

455 F.App’x 743 (9th Cir. 2011) ........................ 19

Patsy v. Bd. of Regents,

457 U.S. 496 (1982) ........................................... 19

Pearl Inv. Co. v. City and Cnty. of San

Francisco,

774 F.2d 1460 (9th Cir. 1985) ........................... 23

Pullman Co. v. Railroad Comm’n of Texas,

33 F.Supp. 675 (W.D. Tex. 1940) ...................... 14

Railroad Comm’n of Texas v. Pullman Co.,

312 U.S. 496 (1941) ....................................... 3, 15

Rancho Palos Verdes Corp. v. City of

Laguna Beach,

547 F.2d 1092 (9th Cir. 1976) ..................... 19, 23

Salve Regina College v. Russell,

499 U.S. 225 (1991) ........................................... 21

San Remo Hotel, L.P. v. City and Cnty. of

San Francisco,

545 U.S. 323 (2005) ........................... 4, 11, 18, 25

Santa Fe Land Improvement Co. v. City of

Chula Vista,

596 F.2d 838 (9th Cir. 1979) ............................. 22

Sederquist v. City of Tiburon,

590 F.2d 278 (9th Cir. 1978) ....................... 22, 23

Sinclair Oil Corp. v. Cnty. of Santa

Barbara, 96 F.3d 401

(9th Cir. 1996)........................................ 11, 19, 23

Tejas Motel, L.L.C. v. City of Mesquite by

and through Bd. of Adjustment,

63 F.4th 323 (5th Cir. 2023) .............................. 32

Tran v. Dep’t of Planning for Cnty. of Maui,

No. 19-00654, 2020 WL 3146584 (D.

Haw. June 12, 2020) .......................................... 18

United States v. Dow,

357 U.S. 17 (1958) ....................................... 31, 34

United States v. Various Articles of Obscene

Merchandise, Schedule No. 1303,

562 F.2d 185 (2d Cir. 1977) ............................... 21

United States v. Hohri,

482 U.S. 64 (1987) ............................................. 20

White Mountain Apache Tribe v. Williams,

810 F.2d 844 (9th Cir. 1985) ............................. 31

xii

Williamson Cnty. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ........................................... 24

Windeler v. Cambria Comty. Water Dist.,

No. 17-8536, 2018 WL 7504406

(C.D. Cal. Mar. 12, 2018)................................... 22

Wisconsin Central Ltd. v. United States,

138 S.Ct. 2067 (2018) ........................................ 14

Wisconsin v. Constantineau,

400 U.S. 433 (1971) ..................................... 17, 22

Zwickler v. Koota,

389 U.S. 241 (1967) ..................................... 16, 17

Statutes

28 U.S.C. § 1291 ........................................................ 1

28 U.S.C. § 1331 .......................................... 1, 2, 4, 18

28 U.S.C. § 1738 ...................................................... 11

28 U.S.C. § 1254(1).................................................... 1

42 U.S.C. § 1983 ........................................ 1, 4, 10, 18

42 U.S.C. § 1988 ...................................................... 31

Cal. Civ. Proc. § 1268.610 ....................................... 31

Cal. Gov’t Code § 7267.2 ........................................... 9

Cal. Gov’t Code § 65589.5(a)(1)(A) ........................... 8

Cal. Gov’t Code § 65589.5(d)..................................... 8

Constitution

U.S. Const. amend. V................................................ 1

xiii

Other Authorities

Amicus Brief of National Governors Ass’n,

et al., Knick v. Twp. of Scott, No. 17-647,

2018 WL 3769957 (Aug. 6, 2018) ...................... 24

Beaton, Laura D. & Zinn, Matthew D.,

Knick v. Township of Scott: A Source of

New Uncertainty for State and Local

Governments in Regulatory Takings

Challenges to Land Use Regulation,

47 Fordham Urb. L.J. 623 (2020)........................ 5

Brief for Appellants, Railroad Comm’n of

Texas v. The Pullman Co., No. 283, 1940

WL 46978 (Dec. 14, 1940).................................. 14

Brief for the Appellees, Railroad Comm’n of

Texas v. The Pullman Co., No. 283, 1941

WL 40310 (Jan. 17, 1941).................................. 14

Brief of the Intervenors, M.B. Cunningham

et al., Railroad Comm’n of Tex. v. The

Pullman Co., No. 283, 1940 WL 38024

(Dec. 18, 1940) ................................................... 15

Brody, Carl E., Jr., Abstention in the

Federal Courts: A Suggested Bifurcated

Standard of Review to Create Procedural

Reliance Where States and Localities

Regulate Constitutionally Protected

Activity, 13 St. Thomas L. Rev. 539

(2001) ................................................................. 26

City of Half Moon Bay Land Use

Plan § 9.3.5 ...................................................... 7, 8

xiv

City of Half Moon Bay, Local Coastal Land

Use Plan, App’x A A-3 (certified Apr. 15,

2021), https://www.half-moonbay.ca.us/Document Center/View/3784/

Full-Combined-2020-HMB-LCLUP .................... 8

Dana, David A., Not Just a Procedural

Case: The Substantive Implications of

Knick for State Property Law and

Federal Takings Doctrine, 47 Fordham

Urb. L.J. 591 (2020) ........................................... 24

Davidson, Nestor M. and Mulvaney,

Timothy M., Takings Localism,

121 Columbia L. Rev. 215 (2021) ...................... 20

DeLong, James V., Property Matters: How

Property Rights are Under Assault—and

Why You Should Care (1997) ............................ 34

Eagle, Steven J., Regulatory Takings

(3d ed. 2005)....................................................... 24

Field, Martha A., Abstention in

Constitutional Cases: The Scope of the

Pullman Abstention Doctrine,

122 U. Pa. L. Rev. 1071 (1974) .......................... 33

Friedman, Barry, Under the Law of Federal

Jurisdiction: Allocating Cases Between

Federal and State Courts,

104 Colum. L. Rev. 1211 (2004) ........................ 24

Gonzalez, Alicia and Trevarthen, Susan L.,

Deciding Where to Take Your Takings

Case Post-Knick, 49 Stetson L. Rev. 539

(2020) ................................................................. 20

Housing Crisis Act of 2019 (Cal. Gov’t

Code), https://leginfo.legislature.ca.gov/

faces/billTextClient.xhtml?bill_id=20192

0200SB330 ........................................................... 8

Kassouni, Timothy V., The Ripeness

Doctrine and the Judicial Relegation of

Constitutionally Protected Property

Rights, 29 Cal. Western L. Rev. 1 (1992).......... 34

Kaye, Judith S. & Weissman, Kenneth I.,

Interactive Judicial Federalism:

Certified Questions in New York,

69 Fordham L. Rev. 373 (2000) ......................... 35

Nash, Jonathan Remy, The Uneasy Case for

Transjuridictional Adjudication,

94 Va. L. Rev. 1869 (2008) ................................ 13

Overstreet, Gregory, The Ripeness Doctrine

of the Taking Clause: A Survey of

Decisions Showing Just How Far

Federal Courts Will Go to Avoid

Adjudicating Land Use Cases,

10 J. Land Use & Envtl. L. 91 (1994) ............... 23

Radford, R.S. & Thompson, Jennifer Fry,

The Accidental Abstention Doctrine:

After Thirty Years, the Case for Diverting

Federal Takings Claims to State Court

Under Williamson County Has Yet to Be

Made, 67 Baylor L. Rev. 567 (2015) .................. 19

Redish, Martin H., Abstention, Separation

of Powers, and the Limits of the Judicial

Function, 94 Yale L.J. 71 (1984) ................. 30, 33

xvi

Rehnquist, James C., Taking Comity

Seriously: How to Neutralize the

Abstention Doctrine,

46 Stan. L. Rev. 1049 (1994) ............................. 32

Reply Brief for Appellants, Railroad

Comm’n of Tex. v. The Pullman Co.,

No. 283, 1941 WL 40311 (Feb. 1, 1941) ............ 15

Somin, Ilya, Knick v. Township of Scott:

Ending a Catch-22 That Barred Takings

Cases from Federal Court, 2019 Cato

Sup. Ct. Rev. 153 ............................................... 19

Statement as to Jurisdiction, Railroad

Comm’n of Tex. v. The Pullman Co.,

No. 283, 1940 WL 46977 (Oct. 14, 1940) .......... 14

Woolhandler, Ann and Mahoney, Julia D.,

Federal Courts and Takings Litigation,

97 Notre Dame L. Rev. 679 (2022) .................... 19

Petition for a Writ of Certiorari

Thomas Gearing and Daniel Gearing respectfully

petition for a writ of certiorari to review the judgment

of the U.S. Court of Appeals for the Ninth Circuit.

Opinions Below

The decision of the Ninth Circuit Court of Appeals

is published at 54 F.4th 1144 (9th Cir. 2022) and

reprinted at Pet.App.1. The decision of the district

court for the Northern District of California is

unpublished and reprinted at Pet.App.14. The Ninth

Circuit’s order denying rehearing is unpublished and

reprinted at Pet.App.41.

Jurisdiction

The lower courts had jurisdiction over this case

under the Fifth Amendment to the United States

Constitution, 42 U.S.C. § 1983, 28 U.S.C. § 1331

(district court), and 28 U.S.C. § 1291 (Ninth Circuit).

The Ninth Circuit entered final judgment on Dec. 8,

2022, Pet.App.1, and denied a petition for rehearing

on January 17, 2023. Pet.App.41. This Court has

jurisdiction under 28 U.S.C. § 1254(1). Justice Kagan

granted an extension of time to file a Petition for Writ

of Certiorari up to and including June 1, 2023.

Constitutional and Statutory

Provisions At Issue

The Fifth Amendment to the U.S. Constitution

provides in relevant part, “nor shall private property

be taken for public use, without just compensation.”

U.S. Const. amend. V.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress . . . .

28 U.S.C. § 1331 provides, “The district courts

shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the

United States.”

Introduction and Summary

of Reasons for Granting the Petition

Thomas Gearing owns five undeveloped lots of

land in Half Moon Bay, California. His son, Daniel,

owns one similar lot gifted to him by his grandmother.

The lots are scattered across a bluff near the ocean,

interspersed among other single-family-home-sized

lots owned by dozens of individual landowners.

Pet.App.44. For 40 years, the City refused any

landowner’s attempt to build a house and refused to

purchase any of the properties for an open space

public park. Pet.App.14–15; ER.25. On October 1,

2020, Thomas Gearing submitted an application to

build residences on the lots. Pet.App.54; ER.47. The

City categorically rejected the application because

that part of town lacked a specific land use plan with

established development standards for the area.

Pet.App.54; ER.29. The City’s rejection did not involve

the interpretation of any ambiguous or unsettled state

or local laws. Pet.App.65–66.

The rejection denied the Gearings productive use

of their lots and effectively converted them to open

space for the benefit of the public. The Gearings sued

in federal court seeking just compensation for the

taking. To thwart liability in that action, the City filed

an eminent domain action in state court and

successfully moved for abstention of the federal

regulatory takings action under Railroad Comm’n of

Texas v. Pullman Co., 312 U.S. 496, 498–99 (1941).

Pet.App.3–4. The City deposited $91,000 “probable

compensation” in state court, Pet.App.62, based on its

appraisal of the lands’ value as open space. This is a

fraction of the value of residential lots or the amount

of just compensation the Gearings would recover upon

a successful regulatory takings claim. Pet.App.47.

This access-to-courts case asks the Court to

address a Pullman abstention obstacle that

frequently prevents property owners, but rarely

victims of other constitutional violations, from

seeking vindication of their constitutional rights in

federal court. See Knick v. Twp. of Scott, 139 S.Ct.

2162, 2170 (2019) (overturning state court exhaustion

requirement for federal takings claims to “restor[e]

takings claims to the full-fledged constitutional

status”); Pakdel v. City and Cnty. of San Francisco,

141 S.Ct. 2226, 2230 (2021) (Civil Rights Act provides

a “guarantee” of “a federal forum for claims of

unconstitutional treatment at the hands of state

officials.”) (cleaned up).

The Ninth Circuit treated the federal regulatory

takings claims and the eminent domain action as if

they are entirely separate. Pet.App.8–10. They are

not. Courts calculate fair market value based on

lawful regulations in effect at the time of the take.

Palazzolo v. Rhode Island, 533 U.S. 606, 625 (2001).

California follows this rule: “Permitting recovery in

eminent domain disregarding the zoning restriction

combines in one action the right to recover

compensation for both the inverse condemnation

resulting from the disguised taking in the form of

zoning and for the actual taking of the property.” City

of San Diego v. Rancho Penasquitos Partnership, 105

Cal.App.4th 1013, 1032 (2003). If the Gearings raise

the constitutionality of regulations in the state action,

their federal claims are precluded by San Remo Hotel,

L.P. v. City and Cnty. of San Francisco, 545 U.S. 323,

335 (2005), when they return to federal court. The

only way to preserve the federal constitutional claims

is to not raise them in state court, which is what the

Ninth Circuit says they should do. Pet.App.9. The

decision below requires the Gearing to litigate in state

court about whether $91,000 appropriately measures

just compensation for open space and then litigate in

federal court for additional compensation because the

$91,000

amount

was

depressed

the

unconstitutional regulations. By forcing the Gearings

to litigate the City’s eminent domain action on

matters that cannot meaningfully narrow or resolve

their constitutional claims, the courts below deprived

the Gearings of the federal forum otherwise

guaranteed by the Fifth Amendment, 42 U.S.C.

§ 1983, and 28 U.S.C. § 1331.

Whether and how Pullman abstention applies in

takings cases are issues of increasing national

importance. Since Knick reopened the federal

courthouse door to takings plaintiffs, local

governments have been seeking ways to force property

owners back into state court, where they feel confident

of obtaining lower awards of just compensation.

Counsel for Half Moon Bay, Matthew Zinn, leads this

effort, promoting a strategy that urges local

governments to make use of “several tools,” including

abstention, “to try to force claims, in whole or in part,

back into state courts.” Laura D. Beaton & Matthew

D. Zinn, Knick v. Township of Scott: A Source of New

Uncertainty for State and Local Governments in

Regulatory Takings Challenges to Land Use

Regulation, 47 Fordham Urb. L.J. 623, 625 (2020).

This Court should end this strategy that denies

property owners a federal forum for their takings

claims and the full value of just compensation. See

Axon Enterprise, Inc. v. Federal Trade Comm’n, 143

S.Ct. 890, 911 (2023) (Gorsuch, J., concurring in

judgment) (28 U.S.C. § 1331, providing that district

courts “shall” have jurisdiction over civil actions

arising under the Constitution, “is as clear as statutes

get.”). As Sixth Circuit Judge Kethledge observed:

“Federal courts have a ‘virtually unflagging’

obligation to exercise the jurisdiction that Congress

has given them. Congress has given us jurisdiction to

hear these takings claims. Our constitutional order

would be better served, I respectfully suggest, if we

simply adjudicated them.” Lumbard v. City of Ann

Arbor, 913 F.3d 585, 592 (6th Cir. 2019) (Kethledge,

J., concurring) (citation omitted).

The petition should be granted.

Statement of the Case

The Gearings’ property

In 1993, Thomas Gearing’s family purchased six

undeveloped lots of land in an area of Half Moon Bay

known as “West of Railroad,” referring to a 32-acre

area between Railroad Avenue and the coast.

Pet.App.15. The Gearings’ two smallest lots are

adjacent; the others are distributed across the bluff.

ER.74. The Gearings’ lots are outlined in red.

The West of Railroad area sits approximately 150’

above sea level with expansive ocean views. The

unincorporated area was legally subdivided in 1905;

and when the City incorporated in 1959, it accepted

the mapped streets as legal streets. The individual

lots, 6000–7500 square feet in size and zoned for

residential use, have been privately owned since 1907.

Pet.App.45, 64; ER.69.

For approximately 40 years, the City has treated

the West of Railroad area as a public recreation park

offering public access to a coastal trail along the

beach. Pet.App.15. The Gearings nonetheless paid

property taxes on the lots with the expectation that

they would one day be allowed to build single-family

residential homes, per the zoning designation.

Pet.App.16, 52, 65.

The City categorically refused to

permit the Gearings to build homes on

their land

Pursuant to state law and coastal regulations, the

City adopted a Land Use Plan (LUP) in 1993 that

provides:

No development shall be permitted until an

opportunity for acquisition and addition to the

state beach has been allowed and the State

Department of Parks and Recreation has

indicated no intent to acquire. Such

determination by the State Department of

Parks and Recreation shall be made within one

year after certification of the Land Use Plan.

LUP § 9.3.5; Pet.App.50. The regulation requires a

landowner seeking to build in the West of Railroad

area “to submit a master plan that analyzes the

impact of the proposed development on the area’s

conservation and recreation zones. The city council

and an environmental review board must then

approve the plan.” Pet.App.3, 49. In other words, a

property owner seeking to build on even one lot must

submit a proposed master plan and environmental

impact report for the entire 32-acre area, 1 subject to

review and approval by multiple government

agencies. Pet.App.64–66.

Meanwhile, California enacted the Housing Crisis

Act of 2019 (known as SB 330) 2 to promote

homebuilding by impelling local governments to act

promptly on development applications. SB 330

prohibits a local agency from disapproving, or

conditioning approval in a manner that renders

infeasible, a housing development project for low or

moderate income households unless the local agency

makes specified written findings based on a

preponderance of the evidence in the record. Cal. Gov’t

Code § 65589.5(a)(1)(A), (d). Citing this law, on

October 1, 2020, the Gearings submitted an

application to build houses on their lots. Pet.App.3.

Twelve days later, the City informed the Gearings

that it would not consider their application—or any

application for development West of Railroad—

because no master plan covered the area as required

by LUP § 9.3.5. Id. When the Gearings sought to

appeal this decision, the City told them no procedure

exists to do so. Pet.App.17, 66.

1 See Local Coastal Land Use Plan, City of Half Moon Bay, App’x

A A-3 (certified Apr. 15, 2021) (master plans “establish zoning

regulations for the affected property(ies), including land use,

density and intensity, design guidelines, and all other

development standards such as height, setbacks and build-to

lines, lot coverage and floor area ratios, parking, landscaping,

and open space”), https://www.half-moon-bay.ca.us/Document

Center/View/3784/Full-Combined-2020-HMB-LCLUP.

2 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml

?bill_id=201920200SB330.

After categorically denying the Gearings’

application, the City updated its LUP on October 20,

2020, purporting to allow some residential

development West of Railroad but prioritizing public

acquisition of property to preserve the blufftop area

for habitat, coastal access, recreation, and scenic

value. Pet.App.17–18. If acquisition is not possible,

the LUP (both updated and original) contemplates

potential “limited residential development” West of

Railroad, but only following “complete replanning and

re-platting of the area.” Pet.App.47. The City’s

resolution excluded the Gearings’ lots from the areas

designated for potential development. Pet.App.16.

On December 22, 2020, the City notified the

Gearings of their intent to appraise the lots to

establish the fair market value for eminent domain

acquisition, per the 2020 LUP update. Pet.App.18;

Cal. Gov’t Code § 7267.2. The appraisal came in at

$91,000, and the City offered to purchase the

Gearings’ property for that amount. The Gearings

declined, believing the amount of compensation to be

unconstitutionally depressed by City actions that

effected a regulatory taking. 3 The Gearings asserted

that current market prices for similarly sized lots in

Half Moon Bay ranged between $500,000 and

$700,000. Pet.App.47.

The proceedings below

With the City refusing even to consider their

building permit, no means of appeal, and without any

3 The Gearings alleged that the City lowered the value of their

lots by misrepresenting the existence of wetlands and sensitive

habitats, physically invading the property, and clouding fee title

by announcing its intent to condemn the property without

initiating eminent domain proceedings. Pet.App.16.

related proceedings pending in state court, the

Gearings exercised their choice of forum to sue the

City for several constitutional violations in federal

court on March 15, 2021, under 42 U.S.C. § 1983. In

addition to due process and equal protection claims,

the complaint alleged both regulatory and physical

takings without just compensation. Pet.App.17.

The next day, five months after adopting the LUP

update that officially designated the Gearings’ land as

an open space public park (as had been the case de

facto for decades, Pet.App.15), the City adopted a

Resolution of Necessity authorizing the City Attorney

to acquire the Gearings’ property by condemnation.

Pet.App.18. On March 23, 2021, the City filed an

eminent domain action in state court. Pet.App.4. The

Gearings moved to stay the state court proceedings

while the City filed a competing motion requesting

possession of the property. Pet.App.1, 19. On

September 2, 2021, the state court denied both the

Gearings’ motion and the City’s motion. Pet.App.19.

The state court proceedings are ongoing.

Meanwhile, in federal court, the City asked the

district court to invoke Pullman abstention to halt the

federal proceedings until the state court litigation

concludes. In the Ninth Circuit, federal courts may

abstain under this doctrine when:

(1) the complaint touches a sensitive area of

social policy upon which the federal courts

ought not to enter unless no alternative to its

adjudication is open;

(2) such constitutional adjudication plainly

can be avoided if a definitive ruling on the state

issue would terminate the controversy; and

(3) the possibly determinative issue of state

law is doubtful.

Sinclair Oil Corp. v. Cnty. of Santa Barbara, 96 F.3d

401, 409 (9th Cir. 1996); Pet.App.20.

The Gearings opposed abstention, arguing that in

light of Knick, 139 S.Ct. at 2168 (property owners need

not exhaust state court proceedings before suing in

federal court), and Pakdel, 141 S.Ct. at 2230 (“nothing

more than de facto finality is necessary” to file a ripe

takings claim in federal court), Pullman abstention is

rarely if ever appropriate in federal takings cases

because it effectively imposes a state exhaustion

requirement. Pet.App.22–23. The crux of the

Gearings’ regulatory takings claim is whether the

City destroyed their right to build residences on their

lots without just compensation. If the Gearings are

correct, the unlawful taking diminished the fair

market value the City owes as compensation in the

condemnation proceeding; it is a necessary component

of the state court’s valuation proceeding. Yet by

combining both federal and state issues in the state

court eminent domain action, the Gearings’ federal

claims are precluded if they return to federal court

after all state court proceedings conclude. San Remo,

545 U.S. at 335; 28 U.S.C. § 1738. 4

The district court ruled for the City, holding that

the rationales underlying Knick and Pakdel had

nothing to do with Pullman abstention and that the

When takings jurisprudence of the federal and state

constitutions is “coextensive,” as in California, see Customer Co.

v. City of Sacramento, 10 Cal.4th 368, 379–80 (1995), then issue

preclusion bars subsequent litigation of the federal takings claim

after litigation of the state takings claim on the merits. Heck v.

Humphrey, 512 U.S. 477, 488 n.9 (1994).

Gearings need not fear preclusion because (1) they are

not required to address the regulatory takings issues

in the state court eminent domain proceeding, and (2)

even if they do, the Gearings informed the district

court of their intention to return to federal court for

adjudication of their federal claims, a maneuver

permitted by England v. La. State Bd. of Med.

Exam’rs, 375 U.S. 411, 421 (1964). Pet.App.24–25.

Applying the Pullman factors, the district court first

held that Ninth Circuit precedent categorizes land use

regulation as a per se “sensitive area of social policy.”

Pet.App.29. It then held that SB 330 is “implicated,”

Pet.App.30, although it did not identify any provision

of the lengthy legislation which, if interpreted one way

or another, would narrow or eliminate the federal

takings claim. Instead, the court merely noted that

the “recently enacted” law “addresses complex land

use problems,” and that state courts should have the

first opportunity to construe it. Id.

The Ninth Circuit affirmed in a published decision.

The panel rejected the argument that Knick and

Pakdel affected Pullman abstention primarily

because Knick and Pakdel “address ripeness, which

goes to when a claim accrues for purposes of judicial

review…. Abstention, on the other hand, allows courts

to stay claims that have already accrued.” Pet.App.6.

Even if Knick and Pakdel did broadly reject

exhaustion requirements in the takings context, the

court continued, the decisions would not compel

rejection of the Pullman abstention doctrine in the

Gearings’ case because “eminent domain and

regulatory takings suits compensate property owners

for different injuries.” Pet.App.8. Finally, the court

held that the Gearings’ England reservation keeps

their regulatory takings claim intact for future federal

litigation. Pet.App.9. The court applied the Pullman

factors and, for the same reasons as the district court,

held that abstention was warranted. Pet.App.11–13.

Ultimately, the panel decision rests on an

irreconcilable internal contradiction: It acknowledges

that only lawful regulations are to be considered in the

valuation process in the eminent domain action.

Pet.App.12 (state court would necessarily construe

any “regulations that encumber or otherwise apply to

the Gearings’ properties to decide proper

compensation in the eminent domain action.”). Yet the

court simultaneously asserts that the Gearings’

claims concerning the regulation’s unlawfulness need

not be litigated. Pet.App.8 (“even if the regulatory

taking issue could be analyzed as part of the fair

market value calculation in the eminent domain

action, it need not be.”). That is, the state court cannot

determine whether the City’s regulation should be

considered in valuation of fair market value without

examining whether it is constitutional, the precise

issue presented in the first-filed federal court case. See

ER.153 (state court noted that “federal claims arise

from the City’s pre-condemnation activity, which may

be relevant to the determination of just compensation

in this action.”). 5

The Gearings filed a petition for rehearing en banc,

which was denied. Pet.App.41.

5 An England reservation cannot save federal claims intertwined

with state claims. Jonathan Remy Nash, The Uneasy Case for

Transjuridictional Adjudication, 94 Va. L. Rev. 1869, 1891

(2008).

Reasons For Granting the Petition

This Court Should Reconsider Pullman

Abstention in Takings Cases Because It

Prevents Property Owners from Obtaining

the Full Measure of Just Compensation

The origins of Pullman abstention

In 1941, trains were America’s primary mode of

cross-country transportation. Wisconsin Central Ltd.

v. U.S., 138 S.Ct. 2067, 2070 (2018). Railroads

contracted with the Pullman Company to staff

passenger and freight cars. Pullman employed white

conductors and black porters, training all of them to

manage and maintain sleeping cars. Brief for the

Appellees, Railroad Comm’n of Texas v. The Pullman

Co., No. 283, 1941 WL 40310, at *45–47 (Jan. 17,

1941). The Texas Railroad Commission issued an

order requiring that only conductors preside over

sleeping cars. Pullman sued and a three-judge district

court held the order void on statutory grounds.

Pullman Co. v. Railroad Comm’n of Texas, 33 F.Supp.

675 (W.D. Tex. 1940). The district court never

addressed the discriminatory effect of the order under

the Equal Protection Clause. The Commission and the

union representing sleeping car conductors appealed

directly to this Court, raising only the question of

whether the Commission acted within the authority

conferred by the state statute. Statement as to

Jurisdiction, Railroad Comm’n of Tex. v. The Pullman

Co., No. 283, 1940 WL 46977, at *5 (Oct. 14, 1940).

After this Court accepted jurisdiction, the

appellants’ merits briefing omitted any reference to

the Equal Protection Clause. Brief for Appellants,

Railroad Comm’n of Texas v. The Pullman Co., No.

283, 1940 WL 46978 (Dec. 14, 1940); Brief of the

Intervenors, M.B. Cunningham et al., Railroad

Comm’n of Tex. v. The Pullman Co., No. 283, 1940 WL

38024 (Dec. 18, 1940). The Pullman Company, as

Appellee, argued primarily that the order lacked a

rational basis and was unjustified under state law but

also that the order violated the Equal Protection

Clause. Brief for the Appellees at 45 (“Porters receive

extra compensation for serving [as conductors]; and

the order, if sustained, will deprive them of it, and

hence denies to them due process and equal protection

of the laws as guaranteed by the 14th Amendment.”).

In its Reply brief, the Commission emphasized the

statutory nature of the case and noted that the “race

question” could be resolved by Pullman itself, as the

company retained the option of employing black

conductors. Reply Brief for Appellants, Railroad

Comm’n of Tex. v. The Pullman Co., No. 283, 1941 WL

40311, at *16 (Feb. 1, 1941).

Against this backdrop, Justice Frankfurter issued

a unanimous decision for the Court’s seven

participating members. 6 The opinion observed that

the racial aspect of the case implicated “a sensitive

area of social policy,” but that the Court would avoid

“the friction of a premature constitutional

adjudication” that could result if it interpreted state

statutes and decisions with which it had no inherent

familiarity. Pullman, 312 U.S. at 500. The Court thus

acknowledged a troubling discriminatory situation

while postponing a decision on a matter that was

neither decided by the lower court nor fully briefed in

this Court. Despite this circumscribed holding, the

6 Justice McReynolds retired and left a vacancy; Justice Roberts

recused.

new abstention doctrine flourished and expanded, and

now operates to regularly deprive civil rights

plaintiffs—especially property owners—of a federal

forum for constitutional claims.

This Court’s variable use of

Pullman abstention

By 1959, Justice Douglas lamented that Pullman

abstention had “extended so far as to make the

presence in federal court litigation of a state law

question a convenient excuse for requiring the federal

court to hold its hand while a second litigation is

undertaken in the state court.” Harrison v. NAACP,

360 U.S. 167, 180 (1959) (Douglas, J., dissenting). In

Harris Cnty. Comm’rs Court v. Moore, 420 U.S. 77, 83

(1975), this Court remarked on the numerous

occasions in which Pullman abstention sent federal

litigants back to state court. The Court cautioned that

because of the delays inherent in the abstention

process and the danger that valuable federal rights

might be lost in the absence of expeditious

adjudication in federal court, abstention must be

invoked only in “special circumstances.” Id. at 83

(citing Zwickler v. Koota, 389 U.S. 241, 248 (1967),

and Baggett v. Bullitt, 377 U.S. 360, 375–79 (1964)).

Cf. Axon, 143 S.Ct. at 917 (Gorsuch, J., concurring)

(“When you replace clear jurisdictional rules with a

jumble of factors, the room for disagreement grows.

The incentive to litigate increases. Years and fortunes

are lost just figuring out where a case belongs.”).

Moreover, Pullman abstention always has been

inappropriate when it “seemed unlikely that

resolution of the state-law question would

significantly affect the federal claim,” Moore, 420 U.S.

at 83–84, or “there is no ambiguity in the state

statute.” Zwickler, 389 U.S. at 250–51; Wisconsin v.

Constantineau, 400 U.S. 433, 439 (1971). In this case,

SB 330 and the City’s land use plan both express their

requirements in unambiguous terms. Thus, state

court review “would not obviate the need for decision

of the constitutional issue or materially alter the

question to be decided.” Babbitt v. United Farm

Workers Nat. Union, 442 U.S. 289, 306 (1979). The

lower courts’ musing about possible complications

surpassed the “point … at which the possible benefits

of abstention become too speculative to justify or

require avoidance of the question presented.” Ohio

Bureau of Emp. Servs. v. Hodory, 431 U.S. 471, 481

(1977).

The federal judiciary’s basic purpose and duty is

protecting and vindicating federal constitutional

rights. See Kusper v. Pontikes, 414 U.S. 51 (1973).

Abstention doctrines are inherently troubling when

they effectively bar Americans with federal

constitutional and civil rights claims from pursuing

vindication in federal courts. Zwickler, 389 U.S. at

248. In the takings context, relegating property

owners to state court often means they cannot obtain

full just compensation. See Merritts v. Richards, 62

F.4th 764, 776 (3d Cir. 2023) (Pennsylvania law does

not permit adjudication of just compensation in a

condemnation proceeding); Landgate v. Cal. Coastal

Comm’n, 17 Cal.4th 1006, 1010 (1998), id. at 1039

(Brown, J., dissenting) (California does not pay just

compensation for temporary takings arising out of

two-year “normal delay” even when based on

erroneous state action). Sometimes they cannot obtain

just compensation at all. See Ariyan, Inc. v. Sewerage

& Water Bd. of New Orleans, 29 F.4th 226, 232 (5th

Cir. 2022) (Louisiana Constitution allows local

governments to refuse payment of state court just

compensation judgments).

Pullman abstention cases also improperly rank the

protections of the Bill of Rights: federal courts rarely

abstain in First Amendment cases, while equally

important constitutional rights are shunted to state

court. See City of Houston v. Hill, 482 U.S. 451, 467

(1987) (collecting cases refusing abstention in First

Amendment cases); Jones v. Coleman, 848 F.3d 744,

753 (6th Cir. 2017) (noting this Court’s “strong

aversion” to Pullman abstention in First Amendment

cases); Tran v. Dep’t of Planning for Cnty. of Maui, No.

19-00654, 2020 WL 3146584, *6–*7 (D. Haw. June 12,

2020) (dismissal of First Amendment claim

“eliminates concerns about the propriety of Pullman

abstention” for Fifth Amendment takings claim).

There is no constitutional basis for this disparate

treatment between takings claims and “challenges to

municipal land-use regulations based on the First

Amendment, or the Equal Protection Clause.” San

Remo, 545 U.S. at 350–51 (Rehnquist, C.J., concurring

in the judgment). As in Pakdel, “the Ninth Circuit had

no basis to relegate petitioners’ claim ‘to the status of

a poor relation’ among the provisions of the Bill of

Rights.” 141 S.Ct. at 2231 (citation omitted).

Pullman abstention in takings cases

deprives property owners of

just compensation

Takings claimants, like other civil rights plaintiffs,

may invoke federal court jurisdiction under 42 U.S.C.

§ 1983 and 28 U.S.C. § 1331. See Knick, 139 S.Ct. at

2171; Mitchum v. Foster, 407 U.S. 225, 242 (1972)

(“The very purpose of § 1983 was to interpose the

federal courts between the States and the people, as

guardians of the people’s federal rights....”); Patsy v.

Bd. of Regents, 457 U.S. 496, 504 (1982) (no

exhaustion requirement to bar or delay federal

vindication of civil rights). Nonetheless, the Ninth

Circuit routinely invokes Pullman abstention when

(1) the complaint “touches a sensitive area of social

policy;” (2) a “definitive ruling on the state issue would

terminate the controversy;” and (3) the issue of state

law is doubtful. Sinclair Oil, 96 F.3d at 409. The third

factor is satisfied with a “minimal showing of

uncertainty.” Patel v. City of Los Angeles, 455 F.App’x

743, 744–45 (9th Cir. 2011) (citations omitted).

As a practical matter, the Ninth Circuit always

holds that land use cases involve “a sensitive area of

social policy.” Rancho Palos Verdes Corp. v. City of

Laguna Beach, 547 F.2d 1092, 1094 (9th Cir. 1976);

R.S. Radford & Jennifer Fry Thompson, The

Accidental Abstention Doctrine: After Thirty Years, the

Case for Diverting Federal Takings Claims to State

Court Under Williamson County Has Yet to Be Made,

67 Baylor L. Rev. 567, 599 (2015). The assumption

underlying this practice is that federal judges are

inherently less savvy regarding local politics and land

use planning. Yet, “[i]f one assumes that background

principles of state law are to be based largely on

preexisting law rather than a freewheeling policy

choice, then federal courts are as well-situated to

make those determinations as state courts.” Ann

Woolhandler and Julia D. Mahoney, Federal Courts

and Takings Litigation, 97 Notre Dame L. Rev. 679,

707 (2022). Moreover, “federal district judges also live

in the communities where they preside—they don’t

exist in some federal ether—and, as leading citizens,

may even better perceive local goings-on.” Ilya Somin,

Knick v. Township of Scott: Ending a Catch-22 That

Barred Takings Cases from Federal Court, 2019 Cato

Sup. Ct. Rev. 153, 164. 7 See also United States v.

Hohri, 482 U.S. 64, 74, n.6 (1987) (“[L]ocal federal

district judges ... are likely to be familiar with the

applicable state law....); Murr v. Wisconsin, 137 S.Ct.

1933, 1946 (2017) (“State and federal courts have

considerable experience in adjudicating regulatory

takings claims.”) (emphasis added); Bernhardt v.

Polygraphic Co. of America, 350 U.S. 198, 204 (1956)

(“Since the federal judge making those findings is

from the Vermont bar, we give special weight to his

statement of what the Vermont law is”). Indeed, many

federal judges previously served on state courts. See

Hall v. Meisner, 51 F.4th 185, 195 (6th Cir. 2022)

(noting Sixth Circuit judge formerly served on the

Michigan Supreme Court). Thus, there is little reason

to assume that lower state courts—much less state

appellate courts that may sit far from the community

where the takings occurred—are more likely to

correctly decide land use issues than regionally-based

federal district courts. See Nestor M. Davidson and

Timothy M. Mulvaney, Takings Localism, 121

Columbia L. Rev. 215, 221 (2021) (“[L]ocal

governments can be parochial and exclusionary, and

the immobility of property creates special

In the district court below, most of the San Francisco-based

judges graduated from Berkeley or Stanford law schools and

practiced law in San Francisco and Oakland prior to ascending

the bench. See generally U.S. Dist. Court, Northern Dist. of Cal.,

Judges (visited Mar. 15, 2023). Meanwhile, state court judges in

California are elected, with all the potential biases that

generates. Alicia Gonzalez and Susan L. Trevarthen, Deciding

Where to Take Your Takings Case Post-Knick, 49 Stetson L. Rev.

539, 566 (2020).

vulnerabilities for owners in the local political

economy.”).

Federal courts have plenty of practice resolving

local issues. They frequently adjudicate state law

issues in diversity cases. See Salve Regina College v.

Russell, 499 U.S. 225, 238 (1991) (appellate courts

independently review district court rulings of state

law); Meredith v. City of Winter Haven, 320 U.S. 228,

236 (1943) (Congress having adopted diversity

jurisdiction, “we can discern in its action no

recognition of a policy which would exclude cases from

the jurisdiction merely because they involve state law

or because the law is uncertain or difficult to

determine.”). They similarly analyze complex and

politically fraught matters involving tribal lands.

Hodel v. Irving, 481 U.S. 704, 712–13 (1987) (applying

Penn Central to assess a requirement that title to land

within Indian reservations escheat to the tribe upon a

landowner’s death); Confederated Tribes of Colville

Reservation v. U.S., 964 F.2d 1102, 1116 (Fed. Cir.

1992) (taking of water rights involved “complex issues

of Indian land law” coupled with “fact-intensive

takings jurisprudence seeking just compensation”).

And federal courts competently evaluate local

community standards in matters ranging from

obscenity, U.S. v. Various Articles of Obscene

Merchandise, Schedule No. 1303, 562 F.2d 185, 189

(2d Cir. 1977), to excessive jury awards, Brown v.

Freedman Baking Co., Inc., 810 F.2d 6, 11 (1st Cir.

1987). Zoning and other property rights-based

disputes are no different. See, e.g., Boraas v. Village of

Belle Terre, 476 F.2d 806, 815 (2d Cir. 1973), rev’d on

other grounds, 416 U.S. 1 (1974) (noting that district

court “start[ed] by examin[ing]” the zoning ordinance

with reference to “the interest of the local community

in the protection and maintenance of the prevailing

traditional family pattern....”); Congregation Kol Ami

v. Abington Twp., 309 F.3d 120, 135 (3d Cir. 2002)

(applying “meaningful review” to local zoning

ordinance).

On the second and third factors, the Ninth Circuit

engages in two maneuvers that inevitably result in

abstention in land use cases. First, the court presumes

that the existence of any state law issue presented

concurrently with federal takings issues has the

potential to change the contours of the litigation. See,

e.g., Sederquist v. City of Tiburon, 590 F.2d 278, 282

(9th Cir. 1978) (abstaining because plaintiff’s takings

claims rested on provisions of the California

Constitution that are “mirror image[s]” of provisions

in the United States Constitution and therefore court

should decide under the state constitutional provision

first). 8 The Ninth Circuit abstains if the government

identifies a state law claim that might affect the

litigation, even if it was not raised. See, e.g., Santa Fe

Land Improvement Co. v. City of Chula Vista, 596 F.2d

838, 840 (9th Cir. 1979) (state courts might find that

the city exceeded its authority based upon a state

statute even though no party “specifically raise[d] the

question.”); C-Y Dev. Co. v. City of Redlands, 703 F.2d

375, 378 (9th Cir. 1983) (speculating that a state court

might rule in favor of the landowner under a statute

“[a]lthough C-Y has not raised the point....”).

8 While this Court repudiated this theory in Constantineau, 400

U.S. at 437–39, Ninth Circuit courts still cite Sederquist for this

proposition. Pet.App.13; Maui Vacation Rental Ass’n, Inc. v.

Maui Cnty. Planning Dep’t, 501 F.Supp.3d 948, 955 (D. Haw.

2020); Windeler v. Cambria Comty. Water Dist., No. 17-8536,

2018 WL 7504406, at *5 (C.D. Cal. Mar. 12, 2018).

Second, even when the California Supreme Court

already ruled on a relevant state-law question, the

Ninth Circuit has invoked Pullman abstention

because the court might change its mind. Bank of Am.

Nat’l Trust & Sav. Ass’n v. Summerland Cnty. Water

Dist., 767 F.2d 544, 547 (9th Cir. 1985). Subsequent

panels are bound to follow these precedents, even

when acknowledging that, under any sensible

analysis, there is no reason to abstain. See Pearl Inv.

Co. v. City and Cnty. of San Francisco, 774 F.2d 1460,

1465 (9th Cir. 1985); Sinclair Oil, 96 F.3d at 410

(invoking Pullman abstention because the land use

plan challenged as a Fifth Amendment taking “has

not yet been challenged in the state courts”). In short,

the Ninth Circuit doesn’t like takings cases and

encourages district courts within that Circuit to find

reasons not to decide them. 9

Pullman abstention  Williamson

County  Pullman abstention again

Until 1985, Pullman abstention was the doctrine

of choice for federal courts, especially the Ninth

Circuit, to push constitutional takings plaintiffs into

state court. See, e.g., Newport Invs., Inc. v. City of

Laguna Beach, 564 F.2d 893, 895 (9th Cir. 1977);

Rancho Palos Verdes Corp., 547 F.2d at 1095;

Sederquist, 590 F.2d at 282–83. Because Pullman

abstention is discretionary, some takings claimants

were able to stay in federal court, at least in some

The Ninth Circuit is not alone. Gregory Overstreet, The

Ripeness Doctrine of the Taking Clause: A Survey of Decisions

Showing Just How Far Federal Courts Will Go to Avoid

Adjudicating Land Use Cases, 10 J. Land Use & Envtl. L. 91, 92

(1994) (many federal courts classify takings cases as “simply too

burdensome”).

parts of the country. But Williamson County Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City,

473 U.S. 172, 194 (1985), ensured that all takings

claimants were forced to pursue their federal

constitutional claims in state court to “ripen” their

claims.

The fundamental nature of Pullman abstention

and Williamson County ripeness operate in exactly

the same way, ultimately depriving many property

owners of just compensation for taken property. See

Barry Friedman, Under the Law of Federal

Jurisdiction: Allocating Cases Between Federal and

State Courts, 104 Colum. L. Rev. 1211, 1270 n.185

(2004) (“Williamson County is ... in all practical

respects an abstention doctrine rather than a ripeness

doctrine.”); Steven J. Eagle, Regulatory Takings 1061

(3d ed. 2005) (Williamson County’s purported ripeness

rules “are, at least in part, an example of abstention

principles.”). See also Knick, 139 S.Ct. at 2188–89

(Kagan, J., dissenting) (noting connection between

Williamson County and Pullman abstention);

Nickerson v. Thomson, 504 F.2d 813, 817 (7th Cir.

1974) (equating abstention with exhaustion).

Commentators, including counsel for Half Moon

Bay, similarly recognize the linkage. See David A.

Dana, Not Just a Procedural Case: The Substantive

Implications of Knick for State Property Law and

Federal Takings Doctrine, 47 Fordham Urb. L.J. 591,

614 (2020) (noting that federal courts “might revert to

pre-Williamson County abstention practices” but

suggesting reasons why this was not inevitable);

Matthew Zinn, counsel of record for Amicus Br. of

National Governors Ass’n, et al., Knick v. Twp. of

Scott, No. 17-647, 2018 WL 3769957, at *6 (Aug. 6,

2018), urged the Court not to “trade” Williamson

County’s state proceedings requirement for “ad hoc

abstention.” One panel of the Ninth Circuit suggested

that courts should rethink Pullman abstention in

light of Knick in an appropriate case. EHOF Lakeside

II, LLC v. Riverside Cnty. Transp. Comm’n, 826

F.App’x 669, 670 (9th Cir. 2020) (mem.). But the

district court rejected this suggestion, Pet.App.23, and

the denial of the petition for rehearing en banc

suggests that the Ninth Circuit may never do so. This

Court should address when, if ever, federal courts

should employ Pullman abstention to relegate

property owners’ Fifth Amendment takings claims to

state court where they may be deprived of full just

compensation.

II.

Lower Courts Conflict as to Whether and

When Pullman Abstention Applies in Land

Use Cases

This Court has rarely addressed Pullman

abstention in takings cases. In Hawaii Housing Auth.

v. Midkiff, 467 U.S. 229, 236 (1984), the Court did not

abstain because Pullman abstention, “the exception,

not the rule,” is limited to uncertain questions of state

law, and there was no such uncertain question. The

Court did abstain under Pullman in San Remo, 545

U.S. at 335, because state court resolution of takings

claims brought under the state constitution were

interpreted “coextensively with federal law,” and

therefore the property owners were precluded from

raising the federal issues in federal court, despite

attempts to reserve their rights to do so. The Court

noted the unfair results of the “San Remo preclusion

trap” in Knick, but has not overruled or limited San

Remo. 139 S.Ct. at 2167, 2174, 2179 (this trap “should

tip us off that the state-litigation requirement rests on

a mistaken view of the Fifth Amendment.”).

This Court’s limited guidance has resulted in lower

courts adopting wildly divergent approaches to

whether and when Pullman abstention is appropriate

in takings cases. See Carl E. Brody, Jr., Abstention in

the Federal Courts: A Suggested Bifurcated Standard

of Review to Create Procedural Reliance Where States

and Localities Regulate Constitutionally Protected

Activity, 13 St. Thomas L. Rev. 539, 539–40 (2001)

(federal courts abstain in an “inconsistent and

ambiguous manner”).

Circuit courts apply inconsistent tests

to determine when Pullman abstention

applies

The Circuit courts apply from one to eight factors

to determine when Pullman abstention applies, and

vary widely from the original formulation of the

doctrine. The Third and Tenth Circuits adhere most

closely to the Pullman itself. See Chez Sez III Corp. v.

Township of Union, 945 F.2d 628, 631 (3d Cir. 1991).

However, if all three circumstances are present, Third

Circuit courts weigh additional factors such as “the

availability of an adequate state remedy, the length of

time the litigation has been pending, and the impact

of delay on the litigants.” Artway v. Attorney Gen. of

N.J., 81 F.3d 1235, 1270 (3d Cir. 1996). The Tenth

Circuit phrases the third factor as whether “an

incorrect decision of state law by the federal court

would hinder important state law policies.” Kansas

Judicial Review v. Stout, 519 F.3d 1107, 1118–19

(10th Cir. 2008) (emphasis added).

The First Circuit finds Pullman abstention

appropriate only when “substantial uncertainty exists

over the meaning of the state law in question, and ...

settling the question of state law will or may well

obviate the need to resolve a significant federal

constitutional question.” Batterman v. Leahy, 544

F.3d 370, 373 (1st Cir. 2008). The Fourth Circuit, by

contrast, abstains almost as frequently at the Ninth,

asking only whether “there is (1) an unclear issue of

state law presented for decision (2) the resolution of

which may moot or present in a different posture the

federal constitutional issue such that the state law

issue is ‘potentially dispositive.’” Educ. Servs., Inc. v.

Md. State Bd. for Higher Educ., 710 F.2d 170, 175 (4th

Cir. 1983).

The Fifth Circuit allows Pullman abstention when

only one factor is present: either (1) whether the

disposition of a state law question could eliminate or

narrow the scope of the federal constitutional issue; or

(2) whether the state law question presents difficult,

obscure or unclear issues of state law; or (3) whether

a federal decision could later conflict with subsequent

state court resolutions concerning the same state laws

or regulations, engendering more confusion. Mireles v.

Crosby Cnty., 724 F.2d 431, 433 (5th Cir. 1984). Yet

Eighth Circuit courts use a seven-factor balancing

analysis, considering the nature of both the right and

necessary remedy; available state remedies; whether

the challenged state law is unclear; whether the

challenged state law is fairly susceptible to an

interpretation that would avoid any federal

constitutional question; and whether abstention will

avoid unnecessary federal interference in state

operations. Beavers v. Ark. State Bd. of Dental

Exam’rs, 151 F.3d 838, 841 (8th Cir. 1998). The

interference factor in turn requires consideration of

whether there is a pending state action, and whether

the case involves procedures and policies of special

state interest. George v. Parratt, 602 F.2d 818, 822

(8th Cir. 1979).

Circuit courts conflict as to

whether Pullman abstention

applies in takings cases

These widely divergent tests are reflected in the

conflicts among the Circuits in takings cases. Two

Circuits have refused to apply Pullman abstention in

takings cases. In Clajon Production Corp. v. Petera, 70

F.3d 1566, 1576 (10th Cir. 1995), the Tenth Circuit

held that a court may not avoid considering ranchers’

takings claims concerning licensing limits on the right

to hunt surplus game on the ranchers’ land even

though the state had not addressed the existence of a

property right to hunt. The court held that, given the

reasonableness of a property right to hunt, the state’s

failure to argue for abstention, and the delay that

would result from abstention, the court was obligated

to consider constitutional claims brought under

Section 1983. Id. See also Lehman v. City of Louisville,

967 F.2d 1474, 1478 (10th Cir. 1992) (no abstention in

takings case because determination of whether the

property owner had a property interest under the

zoning ordinances would “in no way ‘upset sensitive

state programs.’”).

The First Circuit also rejected Pullman abstention

in Fideicomiso de la Tierra del Cano Marin Pena v.

Fortuno, 604 F.3d 7, 17 (1st Cir. 2010). In that case,

the plaintiff alleged that its property was taken for

private use in violation of the Fifth Amendment. The

court noted many “bitterly contested” questions of

Puerto Rico law, such as whether the Fideicomiso was

a public or private entity, whether the subject land

was considered private property, and whether the

territorial commission could legally transfer public

agencies’ lands. Id. But the First Circuit considered

these to be ancillary questions; the case turned on

whether the challenged statute took property for

“public use,” a question of federal constitutional law

fully appropriate for federal court resolution. Id.

On the other side of the conflict, in addition to the

Ninth Circuit below, the Fourth Circuit applied

Pullman abstention to a takings claim in Meredith v.

Talbot Cnty., 828 F.2d 228, 232 (4th Cir. 1987). The

court held that abstention was appropriate because a

newly enacted state law had not been interpreted by

state’s trial or appellate courts, and if the state court

granted an injunction sought by developers, that

result would eliminate the need to determine the

federal constitutional questions as to whether a

taking occurred.

While partially dependent on the nature of the

underlying facts, these Circuit courts demonstrate the

range of willingness (or not) to allow federal takings

claims to proceed in federal court.

III. The Constitution Protects Property Rights,

Not Government Convenience

Civil rights plaintiffs with

takings claims are entitled to

choose their forum

If the demise of Williamson County means that

property owners flock to federal court for relief from

uncompensated takings, that indicates that state

courts are underprotecting property rights, the

precise circumstance in which the Civil Rights Act

authorizes claimants to proceed in federal court. The

Ninth Circuit’s premise that federal court

enforcement of federal constitutional rights

necessarily interferes with local policy or decisionmaking misunderstands of the role of the federal court

in administering the Section 1983 remedy. No local

government has the right or discretion to disregard

the Constitution. Owen v. City of Independence, 445

U.S. 622, 647–48 (1980) (“the municipality’s

‘governmental’ immunity is obviously abrogated by

the sovereign’s enactment of a statute making it

amenable to suit. Section 1983 was just such a

statute.”). In these situations, federal court review

does not interfere with local policy choices or

discretion. Id. at 649–50. See also Martin H. Redish,

Abstention, Separation of Powers, and the Limits of

the Judicial Function, 94 Yale L.J. 71, 77 (1984) (“If

Congress intended that the federal courts exercise a

particular jurisdiction, either to achieve substantive

legislative ends or to provide a constitutionally

contemplated jurisdictional advantage, a court may

not, absent constitutional objections, repeal those

jurisdictional grants.”). 10

There are practical consequences to the choice of

forum in this case. Federal court offers greater ability

to obtain just compensation than state court. The

10 Congress rarely defers to judicial discretion as to when federal

courts should decline to hear federal cases, enacting multiple

statutes to limit federal court jurisdiction See Redish, Abstention,

94 Yale L.J. at 81 (citing the Anti-Injunction Act, 28 U.S.C.

§ 2283, the Three-Judge Court Act, 28 U.S.C. § 2284, the

statutory branch of the habeas corpus exhaustion requirement,

28 U.S.C. § 2254(b), the Tax Injunction Act, 28 U.S.C. § 1341,

and the Johnson Act, 28 U.S.C. § 1342).

decision below acknowledges this, explaining that the

Gearings would be compensated only for the land as

valued under the regulations, and would need to

pursue additional compensation caused by the

regulatory taking effected by those regulations in

federal court. Pet.App.8–9. What a waste of judicial

resources! The effect of the regulations and the

valuation can both be decided by the federal district

court considering the Gearings’ constitutional takings

claim, while the state court eminent domain

proceeding must pretend that the Gearings aren’t

challenging the regulations that deprived them of any

economically viable use of their property.

Beyond this, the date of the taking for purposes of

the state eminent domain action is different than the

date of the taking for purposes of the federal inverse

condemnation action. The date of the take for the

state’s eminent domain action is the date the City

deposited $91,000 with the court: March 23, 2021.

Pet.App.62. The date of the take in the federal inverse

condemnation takings case is months earlier, when

the City denied the Gearings’ application on October

13, 2020. The date of the take determines the amount

of just compensation. Knick, 139 S.Ct. at 2177. Cf.

U.S. v. Dow, 357 U.S. 17, 25 (1958) (disapproving of

government “manipulations” to the date of the take).

By forcing the Gearings into state court, the City also

immunizes itself from paying the Gearings’ attorneys’

fees because there is no fee-shifting statute in

California eminent domain actions comparable to 42

U.S.C. § 1988. 11

11 The eminent domain statute provides for fee shifting in limited

circumstances, and assumes waiver of the England reservation.

Cal. Civ. Proc. § 1268.610; see White Mountain Apache Tribe v.

Government uses abstention as a means

to grind down property owners with

endless litigation

The City could have invoked eminent domain at

any time to purchase the property for open space. Only

when faced with an inverse condemnation claim for

just compensation in federal court did the City seek to

significantly reduce its costs by forcing the Gearings

into a state court action on the City’s own terms. This

precludes the Gearings from challenging the

regulations that depressed their lots’ value, lest they

be forever foreclosed from federal court review under

San Remo. See also Allen v. McCurry, 449 U.S. 90,

101, 103–04 (1980) (Section 1738 gives state court

adjudications of federal constitutional issues

preclusive effect in federal courts); Tejas Motel, L.L.C.

v. City of Mesquite by and through Bd. of Adjustment,

63 F.4th 323, 334 (5th Cir. 2023) (same).

When the Gearings filed their federal lawsuit, no

state court proceedings related to the property were

pending. 12 See Bell v. Hood, 327 U.S. 678, 681 (1946)

(“the party who brings a suit is master to decide what

Williams, 810 F.2d 844, 854 (9th Cir. 1985) (Section 1988 fees not

available when plaintiffs decline to press federal constitutional

claims in state court after Pullman abstention).

12 This fact distinguishes this case from those where plaintiffs

seek to evade the state appellate process by filing a parallel

action in federal court. See James C. Rehnquist, Taking Comity

Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L.

Rev. 1049, 1065–68 (1994) (favoring a “first-filed” rule in which

the litigation in parallel cases proceeds in the forum in which the

first lawsuit was filed); Antosh v. Village of Mount Pleasant, No.

22-0117, 2023 WL 2465920, at *5–*6 (E.D. Wis. Mar. 10, 2023)

(noting “utter gamesmanship” exhibited by plaintiffs to avoid

state appellate process).

law he will rely upon”). Only after the Gearings filed

their regulatory takings claim in federal court did the

City counterpunch with an eminent domain lawsuit to

evade federal constitutional review and the full

amount of just compensation the Gearings are due.

This Court should not countenance such self-dealing

governmental machinations at the expense of

property owners seeking vindication of constitutional

rights. See Arrigoni Ent., LLC v. Town of Durham, 136

S.Ct. 1409 (2016) (Thomas and Kennedy, JJ.,

dissenting from denial of certiorari) (procedural bar

from federal court “inspired gamesmanship”); Lapides

v. Board of Regents, 535 U.S. 613, 621 (2002) (decrying

state’s manipulation of legal doctrine “to achieve

unfair tactical advantages”).

Being forced to participate in state court

proceedings, through all appeals, before returning to

federal court is untenable and unjust. See Carroll v.

City of Mount Clemens, 139 F.3d 1072, 1080 (6th Cir.

1998) (Moore, J., concurring and dissenting)

(lamenting “the glacial pace” of state court

proceedings and noting that “[p]rinciples of fairness

dictate that when a party alleges a violation of her

constitutional rights, a speedy resolution is

required.”); Redish, Abstention, 94 Yale L.J. at 90

(“Pullman abstention may, as a practical matter, so

severely delay the exercise of federal jurisdiction that

it acts as a significant deterrent to the resort to federal

court.”); Martha A. Field, Abstention in Constitutional

Cases: The Scope of the Pullman Abstention Doctrine,

122 U. Pa. L. Rev. 1071, 1085 (1974) (substantial

delay occurs due to “shuttling” between federal and

state court).

Because time is money, these delays present a

steep financial burden on already-injured property

owners. Timothy V. Kassouni, The Ripeness Doctrine

and the Judicial Relegation of Constitutionally

Protected Property Rights, 29 Cal. Western L. Rev. 1,

11 (1992) (“The time and money required to comply

with myriad ripeness requirements will prevent most

middle-class property owners from pursuing their

constitutional right to just compensation [and] make

substantive review virtually impossible”); Moore, 420

U.S. at 89 (Douglas, J., dissenting) (after Pullman

abstention, rejected plaintiffs “would necessarily have

to be very rich … or else be financed by some

foundation—to pay the expense of [the resulting] long,

drawn-out litigation.”); Jones, 848 F.3d at 750

(“Pullman abstention results in significant financial

and time burdens on the parties and acts almost as an

exhaustion requirement”).

The potential for delay is exacerbated because the

City can force property owners to litigate the eminent

domain action and then, if the price turns out to be too

high, the City can walk away, having forced the

property owner to expend considerable resources on

litigation that resolves nothing and requires

additional litigation for the injury done to the property

during the later-abandoned action. Cf. Dow, 357 U.S.

at 26 (if government commences then abandons an

eminent domain action, the property owner still may

pursue just compensation for the duration of the

temporary take). In this context, government

advocacy for federal court abstention is just another

tool to devise an impossible maze for property owners

and avoid constitutional review of restrictive land use

regulations. See James V. DeLong, Property Matters:

How Property Rights are Under Assault – and Why

You Should Care 297 (1997) (“The name of this game

is transaction costs.”).

Because of the recognized injustice wrought by

these delays, when a legitimate need exists for state

courts to interpret state law, this Court prefers

certification to state high courts over Pullman

abstention that sends civil rights plaintiffs to state

trial courts. Arizonans for Off. Eng. v. Arizona, 520

U.S. 43, 75–80 (1997); Expressions Hair Design v.

Schneiderman, 581 U.S. 37, 57 (2017) (Sotomayor and

Alito, JJ., concurring in the judgment) (because

“[a]bstention is a blunt instrument,” “[c]ertification

offers a more precise tool”). See also Judith S. Kaye &

Kenneth

Weissman,

Interactive

Judicial

Federalism: Certified Questions in New York, 69

Fordham L. Rev. 373, 380 (2000) (former Chief Justice

of the New York Court of Appeals recognized the delay

and expense caused by abstention, concluding that

“abstention was not an effective solution to the

problem of federal courts seeking to ascertain state

law.”). Yet the Ninth Circuit continues to use Pullman

abstention as a cudgel to beat property owners back

into state court, depriving them of a federal forum to

pursue their constitutional takings claims for just

compensation. If a local government takes private

property without paying for it, that government has

violated the Fifth Amendment and it doesn’t create

needless friction for federal courts to say so. County of

Allegheny v. Frank Mashuda Co., 360 U.S. 185, 195

(1959). This Court should reconsider the role, if any,

of Pullman abstention in constitutional takings cases.

Conclusion

This Court should grant the petition.

DATED: June, 2023.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall, Ste. 1290

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

DLaFetra@pacificlegal.org

KRISTEN DITLEVSEN RENFRO

Of Counsel

Desmond, Nolan, Livaich

& Cunningham

1830 15th Street

Sacramento, California 95811

Counsel for Petitioners

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