Amicus Curiae Brief — Exxon Mobil Corp. v. Saudi Basic Industries Corp.

(5) NUV 24 2004

—

No. 03-1696 CERICE OF THE CLERK

In the

Supreme Court of

the United States

EXXON MOBIL CORPORATION, &TAL.,

Petitioners,

Vv.

SAUDI BASIC INDUSTRIES CORPORATION,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals for the Third Circuit

BRIEF AMICI CURIAE OF DEFENDERS OF

PROPERTY RIGHTS, NEW ENGLAND LEGAL

FOUNDATION, OREGONIANS IN ACTION, SAVE

OUR SHORELINE, AND SOUTHEASTERN LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

Nancie G. Marzulla*

Roger J. Marzulla

DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., NW

Suite 410

Washington, DC 20036

(202) 822-6770 =

*Counsel of Record for Amici Curiae

(1985)?

172

mm'n v.

US. 1

rt in compli

‘I Planning

in state

punty Reg

1k of Johnson City, 473

of jurisdiction to hear ta

divest feder

that have be

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................cccccceeeeeeeeeeeees il

TABLE OF AUTHORITIES ...............ccccccceseeeeeeeees iv

INTERESTS OF AMICI CURIAE .................600500c00e 2

SUMMARY OF ARGUMENT ........... 6.5... c cece eee

SUUMIIIIIEET AcAAsbbehansengnsececeascdecesnrencnecenneeeceseseceness. 12

I. Application of the Rooker-Feldman Doctrine in

Takings Cases Subject to the Williamson County

State Exhaustion Ripeness Requirement Has

the Unintended Consequence of Eliminating

Federal Court Relief for Federal Constitutional

Te acces cccecerecccstencererrecereerrererererersene- BZ

Il. The Better View, Adopted by Some Courts, Is

To Harmonize the Two Doctrines, Thereby

Allowing Takings Litigants Access to Federal

Court Review of Their Federal Constitutional

Pe ID cnc cceccccccccnceccscccecesceccceceees.. 18

se Bis Bameprrverrerrerrrerrerererrererer rrr reriry tren 2.

iil

TABLE OF AUTHORITIES

Page

Cases:

Agripost, Inc. v. Miami-Dade County, 195 F.3d

, ME itcpnasscctvinsecteincotsecsise 11, 19-20

Anderson v. Charter Township of Ypsilanti, 266 F.3d

EE Ic dignissmicianmnncdanencenemnsivelibeesaaninnnian 15

Bennett v. Spear, 520 U.S. 154 (1997)...........cccceeeeeceees 3

Bessette v. Avco Fin. Servs., 230 F.3d 439

aa a i wl ccniabiaeiinniniel 4

Borden Ranch Partnership v. United States Army Corps

of Engineers, S36 U.S. FOS (200Z)........cccccsccccccsescccccccees 5

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194

TI oil. ieiccdueat decetasusiushamednnaninimdioniiennionl 6, 13

Centres, Inc. v. Town of Brookfield, 148 F.3d 699

Sh Ti diciatnidianidiinddebinniaoodsanhiassebenss seen 20

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

TE sini snnddsiniintiannkegabeéeisaédmensiienied 2-3

City of Richmond v. Croson, 488 U.S. 469 (1989)........... 6

Crosby v. National Foreign Trade Council, 530 U.S.

il diiictbdisniinspbidnceesepthundsnoneseniendandenanatl 4

iv

District of Columbia Court of Appeals v. Feldman,

a e: iritdcneiintdatsinamisnnininecininniuveoied 13

DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir.

i bccitinsieisncsninisinepnsianadsidediniimanseremedd 21-22

Dolan v. City of Tigard, 512 U.S. 374 (1994)..............4. 3

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)........ 3-4

England v. Louisiana Bd. of Medical Examiners,

ee Res ee in dinckcncadaiidcdiinedavsssnbentecnende 11-12

Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332

INS ik at alae aie el aa cl 4

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

Fe ae Ce Ee tinnthasendanectnecenseucenivinn 14

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

Ck Se I is scat idenidhcnintinkiiadtaneiesvenionesees 16

Glass v. Goeckel, 683 N.W.2d 719 (Mich. App. 2004)........5

Gooden v. Faulkner County Sheriff's Dep’t, 129 F.3d

121, 1997 WL 692993 (8th Cir. Nov. 7, 1997).............. 20

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003)......3

Gulla v. North Strabane Township, 146 F.3d 168

GR. Se Riicscnsccedssdesinsiviiianisinakemeapiesniiadell 18-19

Hill v. Town of Conway, 193 F.3d 33 (1st Cir. 1999)...... 15

Johnson v. City of Shorewood, 360 F.3d 810, 818-19

eB iardntesintnindasthbiniitenabiundeesiidaiibiadeil 15

Keene Corp. v. United States, 508 U.S. 200 (1993)......... 3

Lucas v. South Carolina Coastal Council,

A i I iissed pitianinidinedhiunnsodeaiapéditneenaieite 3, 6

McConnell v. FEC, 540 U.S. 93 (2003) ................e eee 6

Palazzolo v. Rhode Island, 533 U.S. 606 (2001).......... 2,4

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)............ 14

Phillips v. Washington Legal Foundation,

Fe cicndentenidcninidcenieniascnstennicatiabaedl 3

Preseault v. ICC, 494 U.S. 1 (1990)..............cceceeeeeees 16

Ritter v. Ross, 992 F.2d 750 (7th Cir. 1993)................. 15

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)......... 13

Santini v. Connecticut Hazardous Waste

Management Service, 342 F.3d 118 (2d Cir. 2003).........20

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159 (2001)........ 2

Suitum v. Tahoe Regional Planning Agency,

Es PEP CT Dikncccnenctsusceccniaslpiesessntses 3, 16-17

vi

United States House of Representatives v. Department

af Commerce, S23 U.S. S16 CIDFF). ocsesccevescccsevesoceeead 6

Williamson County Reg 'l Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172

Sc hinidnciiiaicsmoundiinienimntsdonibeunnainel ii, 7, 16

Statutes:

ie ils UF EP cisiscansndicansdccncadsscvsncersceusssaverusante 9

Other Authorities:

Susan Bandes, The Rooker-Feldman Doctrine: Evaluating

Its Jurisdictional Status, 74 Notre Dame L. Rev. 1175

SET intecuncinchenmnciinsienssnamnsereenbegenmesniaianakiis 13

Jack M. Beermann, Comments on Rooker-Feldman or Let

State Law Be Our Guide, 74 Notre Dame L. Rev. 1209

IIIT visist dededilechdanigeantea beastie iasdmiddalnadadieneainibeumidaied: 13-14

Michael M. Berger, Evolving Voices in Land Use

Law: A Festchrift in Honor of Daniel R. Mandelker,

Part II: Discussions on the National Level,

Chapter 3: Takings Issues, 3 Wash. U. J.L. &

Pe Or ic ecascenscnssessvecnincniciemenennt 9-11, 17-18

J. David Breemer, Overcoming Williamson County's

Troubling State Procedures Rule: How the England

Reservation, Issue Preclusion Exceptions, and the

Inadequacy Exception Open the Federal Courthouse

Doer to Ripe Takings Claims, 18 J. Land Use &

Vil

OUD, Ce, By SOM 8 GOP cece senscveccessccsesscscosenons 7-8

Barry Friedman & James E. Gaylord, Rooker-Feldman,

from the Ground Up, 74 Notre Dame L. Rev. 1129

See sincbukiiedinnenddntivdscnaniatdadbabnenmmminatenaieimdeians 14

William M. Hof, Trying to Halt the Procedural

Merry-Go-Round: The Ripeness of Regulatory

Takings Claims After Palazzolo v. Rhode Island,

46 St. Louis U. L.J. 833, 855 n.118 (2002)................. 8-9

Vill

No. 03-1696

In the

Supreme Court of

the United States

EXXON MOBIL CORPORATION, ETAL.,

Petitioners,

Vv.

SAUDI BASIC INDUSTRIES CORPORATION,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals for the Third Circuit

BRIEF AMICI CURIAE OF DEFENDERS OF

PROPERTY RIGHTS, NEW ENGLAND LEGAL

FOUNDATION, OREGONIANS IN ACTION, SAVE

OUR SHORELINE, AND SOUTHEASTERN LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

Amici curiae submits this brief in support of

petitioner.' See S. Ct. Rule 47.3. Both parties have

‘No counsel for either party authored this brief amici curiae, either in

whole or in part. Furthermore, no persons other than amici curiae

contributed financially to the preparation of this brief.

l

consented to the filing of this brief.

INTERESTS OF AMICI CURIAE

Defenders of Property Rigtts is the only national

legal defense foundation dedicated exclusively to

protecting private property rights. Based in Washington,

D.C., Defenders was founded as a non-profit, public

interest legal foundation in 1991. Its mission is to protect

vigorously those rights considered essential by the Framers

of the Constitution, and to promote a better understanding

of the relationship between private property rights and

individual liberty.

Defenders of Property Rights engages in litigation

across the country on behalf of its members and the public

interest to prevent government incursion into protections

guaranteed by the Bill of Rights. Since its inception,

Defenders has participated in every major property rights

case before the U.S. Supreme Court. See, e.g., Palazzolo v.

Rhode Island, $33 U.S. 606 (2001); Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999); Phillips v.

Washington Legal Foundation, 524 U.S. 156 (1998);

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725

(1997); Dolan v. City of Tigard, 512 U.S. 374 (1994);

Bennett v. Spear, 520 U.S. 154 (1997); Keene Corp. v.

United States, 508 U.S. 200 (1993); and Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992).

New England Legal Foundation is a non-profit,

public interest law firm, incorporated in Massachusetts in

1977 and headquartered in Boston. Its membership consists

of corporations, law firms, individuals, and others who

believe in NELF’s mission of promoting balanced

economic growth ‘or the United States and the New

England region, protecting the free enterprise system, and

defending economic rights. NELF’s more than 130

members and supporters include a cross-section of large

and small corporations from all parts of New England and

the United States. NELF has regularly appeared in state and

federal courts, as party or counsel, in cases raising issues of

general economic significance to the New England and

national business communities. See, e.g., Green Tree Fin. —

Corp. v. Bazzle, 539 U.S. 444 (2003); EEOC v. Waffle

House, Inc., 534 U.S. 279 (2002); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000); Estados Unidos

Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000);

Bessette v. Avco Fin. Servs., 230 F.3d 439 (1st Cir. 2000),

cert. denied, 532 U.S. 1048 (2001).

Oregonians in Action is a non-profit organization

devoted solely to fighting for property rights and against

excessive land use regulations. It works for sensible, fair

and flexible land-use regulations and to protect property

rights. OIA’s exclusive focus on land-use/property rights

stems from its concerns about the harm and adverse

impacts from land use regulations, not only with respect to

landowners, but also to the economy and best interests of

the public as well.

OIA works primarily in the legislative and

regulatory arena, seeking needed reforms to existing land-

use laws and regulations at the federal, state and local

levels. However, OIA has also been active in pursuing

judicial action, seeking greater awareness and

understanding of the issues, involvement in the election of

candidates for public office and involvement in ballot

measures.

Save Our Shoreline is a grass-roots organization of

over 2,000 property owners along Michigan's Great Lakes

shoreline. Formed in 2001, SOS staunchly opposes

assertions of government ownership and control over private

property, including shorelands that have, since statehood,

been considered by the bench, the bar, and the public, to be

privately owned.

In its brief history, SOS has participated as amicus

curiae before the U.S. Supreme Court in Borden Ranch

Partnership v. United States Army Corps of Engineers, 536

U.S. 903 (2002) (contesting expansion of federal regulatory

control over beaches via the Clean Water Act) and before the

Michigan Court of Appeals in Glass v. Goeckel, 683 N.W.2d

719 (Mich. App. 2004) and its appeal to the Michigan

Supreme Court, Docket No. 126409 (asserting private

ownership to the water's edge, including exclusive use and

trespass control).

Southeastern Legal Foundation is a public

interest law firm, specializing in the practice of

constitutional law. SLF was founded in 1976 for the

purpose of engaging in litigation, education and public

policy initiatives in support of free enterprise, individual

rights and the freedoms guaranteed by the United States litigated in state courts in order to comply with this Court's

Constitution. state-court exhaustion requirement. Williamson County

SLF has participated as amicus curiae in cases Reg‘! Planning Comm'n v. Hamilton Bank of Johnson City,

throughout the United States involving constitutional and 473 U.S. 172, 195 (1985) (“{I)f a State provides an

policy issues. See, e.g., Lucas v. South Carolina Coastal adequate procedure for seeking just compensation, the

Commission, 505 U.S. 1003 (1992); City of Richmond v. property owner cannot claim a violation of the Just

Croson, 488 U.S. 469 (1989). In addition to its amicus Compensation Clause until it has used the procedure and

work, SLF maintains an active litigation docket, focusing been denied just compensation.”).

on constitutional issues of first impression, including Although a narrow interpretation of the Rooker-

United States House of Representatives v. Department of Felman doctrin@ May have its place in legitimate federal

Commerce, 525 U.S. 316 (1999) (census enumeration); preclusion jurisprudence and traditional notions of

MeConnell v. FEC, 540 U.S. 93 (2003) (political speech). federalism, a mindlessly expansive interpretation, applied

SUMMARY OF ARGUMENT by many lower courts, combined with the Williamson

At issue in the case is the proper interpretation of County exhaustion requirement, places federal takings

the Rooker-Feldman doctrine, which applies when a losing plaintiffs in an untenable Catch-22 position: file first in

party “seeks now [what] is nothing more than appellate federal court and have their claim denied on ripeness

review of the state court ruling in the lower federal courts.” grounds (Williamson County) or file first in state court and

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 199 have their federal court claim dismissed on Rooker-

(4th Cir. 2000). The purpose of this brief amici curiae is to _Feldman grounds. See generally J. David Breemer,

urge the Court to construe the Rooker-Feldman doctrine Overcoming Williamson County's Troubling State

narrowly, so as not to divest federal courts of jurisdiction to Procedures Rule: How the England Reservation, Issue

hear federal constitutional takings cases that have been first Prectusion Exceptions, and the inadequacy Exceptie

6 7

Open the Federal Courthouse Door to Ripe Takings

Claims, 18 J. Land Use & Envtl. L. 209, 210-11 (2003)

(“As commentators have long noted, the ripeness prongs

established in Williamson County create powerful barriers

to landowners seeking to have their takings claims heard on

the merits in federal court. When combined with preclusion

doctrines, the state procedures requirement is particularly

pernicious. In many cases, it has been applied to close the

federal courthouse door to attempts to vindicate federal

rights under the Takings Clause, a situation that cannot be

reconciled with the Court's opinion in Williamson County

or with the well-established role of federal courts in

enforcing federal constitutional law.”); William M. Hof,

Trving to Halt the Procedural Merry-Go-Round: The

Ripeness of Regulatory Takings Claims After Palazzolo v.

Rhode Island, 46 St. Louis U. LJ. 833, 855 n.118 (2002)

(“[T]he second part of the Williamson County test,

exhaustion of state compensation procedures, has also

created problems. These problems deal with preclusion and

landowners’ inability to bring a claim in federal court after

pursuing all available remedies on the state level, which

often includes bringing an action in state court... .

Assuming that property owners must ripen their takings

cases by litigating in state court first, federal courts are

refusing to hear takings claims that were already litigated

before state tribunals. Thus, the synergy between the

preclusion doctrines and current ripeness rules is that

owners are forced to litigate their constitutional takings

claims in state court, without ever receiving a federal

adjudication on the merits.”’).

Barring federal constitutional claims from review

by a federal court could not have been intended by

Congress when enacting Section 1983 to give plaintiffs a

right to seek redress for such claims in federal court. See 42

U.S.C. § 1983. Yet, such is the combined result of the

Rooker-Feldman Doctrine and the Williamson County

state-court exhaustion doctrine. As one commentator noted:

Either the Supreme Court meant something

when it decided Williamson County, or it did

not. If the latter is true, the Court was merely

uttering meaningless rhetoric, with no more

purpose than to stave off the day of

intellectual reckoning. If, however, the

Supreme Court meant what it repeatedly said, ~

that a claim for just compensation for a

regulatory taking of property is ripe for

litigation on the merits in federal district court

once a final, unfavorable regulatory decision

has been issued by the state courts then it is

incumbent on the lower federal courts to give

meaning to that decision. They cannot, with

any degree of intellectual honesty, apply by

rote the general precepts of claim and issue

preclusion without noting the destructive

impact on those general rules of the core

holding of Williamson County. . . . Whether

by design or blunder, the Supreme Court

justices created a system in which they

instructed property owners with constitutional

claims to litigate the same factual case twice:

once, under state law in state court, and then,

if they so chose, again in federal court under

federal law. It is simply impermissible to say

that when the Supreme Court did so, it meant

to create a system in which property owners

are deliberately duped into giving up their

right to federal litigation of federal

constitutional issues because they do their best

to comply with Williamson County’s clear

holding.

Michael M. Berger, Evolving Voices in Land Use

Law: A Festchrift in Honor of Daniel R. Mandelker,

Part II: Discussions on the National Level,

Chapter 3: Takings Issues, 3 Wash. U. J.L. &

Pol’y 99, 131-32 (2000).

In order to avoid stripping federal courts of the

10

ability to hear claims resting on federal constitutional

ri ghts, some courts have held that the Rooker-Feldman

doctrine is inapplicable to cases where the litigation in state

court was necessitated under Williamson County. See e.g.,

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225 (11th

Cir. 1999) (rejecting the applicability of the Rooker-

Feldman doctrine in a takings case).

Similarly, in England v. Louisiana Bd. of Medical

Examiners, 375 U.S. 411 (1964), this Court held that the

federal court was not precluded from hearing a case where

the federal court had abstained, and sent the case to the

state court to decide. At the end of the state court

litigation, the litigants returned to federal court only to be

eee

dismissed because “‘the courts of Louisiana have passed on

all issues raised, including the claims of deprivation under

the Federal Constitution.’” /d. at 414 (citation omitted).

This Court held that subsequent review by a federal court

was not barred because the litigant was involuntarily in

state court (as a result of abstention), and therefore his

return to federal court would not be barred as an “appeal”

of the state court decision. /d. at 415-19. This Court

reasoned:

11

[I]n cases where, but for the application of the Columbia Court of Appeals v. Feldman, 460 U.S. 462

abstention doctrine, the primary fact

determination would have been by the District (1983), stands for the proposition that a party aggrieved by

Court, a litigant may not be unwillingly a state-court decision cannot appeal that decision to a

deprived of that determination. The pe ony a oe ay

possibility of appellate review by this Court of ee

a state court determination may not be certiorari from the United States Supreme Court.

substituted, against a party’s wishes, for his

right to litigate his federal claims fully in the As the Fourth Circuit has explained:

federal courts. [T]he Rooker-Feldman doctrine . . . rests on

two basic propositions of federal jurisdiction.

Id. at 417. First, Congress has vested the authority to

review state court judgments in the United

States Supreme Court alone. The Rooker-

construe the Rooker-Feldman doctrine so that it does not Feldman doctrine thus “interprets 28 U.S.C. §

1257 as ordinarily barring direct review in the

; a lower federal courts of a decision reached by

hear takings claims ripened under the Williamson County the highest state court, for such authority is

vested solely in [the Supreme] Court.”

Second, Congress has empowered the federal

district courts to exercise only original

ARGUMENT jurisdiction.

I. Application of the Rooker-Feldman Doctrine in Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198-99

Takings Cases Subject to the Williamson County

State Exhaustion Ripeness Requirement Has

the Unintended Consequence of Divesting Bandes, The Rooker-Feldman Doctrine: Evaluating Its

Federal Courts of the Ability to Hear Federal ee

Constitutional Takings Claims. Jurisdictional Status, 74 Notre Dame L. Rev. 1175 (1999);

Jack M. Beermann, Comments on Rooker-Feldman or Let

State Law Be Our Guide, 74 Notre Dame L. Rev. 1209

(1999); Barry Friedman & James E. Gaylord, Rooker-

Amici curiae urge this €ourt to likewise narrowly

apply or does not divest federal courts of jurisdiction to

state court exhaustion requirement.

(4th Cir. 2000) (citations omitted); see generally Susan

The Rooker-Feldman doctrine, named for Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923), and District of

12 . 13

Feldman, from the Ground Up, 74 Notre Dame L. Rev.

1129 (1999).

In the typical case in which the Rooker-Feldman

doctrine is applied, the federal plaintiff is a losing party in a

State judicial proceeding and seeks an order from a federal

court to reverse the state court’s decision. This Court has

broadly construed the Rooker-Feldman doctrine, holding

that a federal claim may also be considered an appeal from

a state court decision if the issues raised by the parties in

federal court even if they are merely “‘inextricably

intertwined’” with the issues they litigated in state court.

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987)

(citation omitted).

Federal courts, as the Third Circuit did in this case,

have even more expansively interpreted the Rooker-

Feldman doctrine to apply to any federal case in which the

parties are the same and the claims are similar. See Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102 (3d

Cir. 2004).

Such expansive interpretations of the Rooker-

Feldman doctrine have severe consequences when applied |

in a case where the plaintiff is seeking just compensation

14

for state action under the Fifth Amendment to the U.S.

Constitution. See, e.g., Johnson v. City of Shorewood, 360

F.3d 810, 818-19 (8th Cir. 2004) (“To the extent the

Johnsons’ alleged constitutional injury stems from claims

adjudicated in the prior state court judgment, the district

court lacked jurisdiction under Rooker-Feldman because

the Johnsons are essentially challenging the state judgment

as inadequate and are ‘asking the federal court for the same

remedy requested in the state court action: just

compensation.””) (citation omitted); Anderson v. Charter

Township of Ypsilanti, 266 F.3d 487, 493 (6th Cir. 2001)

(holding that district court had correctly applied Rooker-

Feldman doctrine to dismiss plaintiff's taking claims); Hill

v. Town of Conway, 193 F.3d 33, 40 (1st Cir. 1999)

(holding that Rooker-Feldman doctrine deprived it of

jurisdiction since state court had already determined that

plaintiffs were not entitled to just compensation); Ritter v.

Ross, 992 F.2d 750, 755 (7th Cir. 1993) (holding that

Rooker-Feldman deprived court of jurisdiction over

Section 1983 action for just compensation because

plaintiffs were asking court to review state court

foreclosure judgment).

15

In federal takings cases involving state action,

although the claim is founded directly on the federal

Constitution, unlike all other federal constitutional rights, a

plaintiff in a Fifth Amendment takings case is required by

this Court’s decision in Williamson County Regional

Planning Comm'n v. Hamilton Bank of Johnson City, 473

U.S. 172 (1985), to litigate his case first in state court, lose,

and only then go to federal court for review.” Jd. at 195

(“[I]f.a State provides an adequate procedure for seeking

just compensation, the property owner cannot claim a

violation of the Just Compensation Clause until it has used

the procedure and been denied just compensation.”);

Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 734

n.8 (1997) (“Ordinarily, a plaintiff must seek compensation

through state inverse condemnation proceedings before

* The Williamson County judicial exhaustion requirement reflects the

fact that the Fifth Amendment's Just Compensation Clause, upon which

a takings suit is based, “does not prohibit the taking of private property,

but instead places a condition on the exercise of that power.” First

English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 314 (1987). It is designed “not to limit the

governmental interference with property nghts per se, but rather to

secure compensation in the event of otherwise proper interference

amounting to a taking.” /d. at 315; see also Preseault v. ICC, 494 U.S.

1, 11 (1990).

16

initiating a takings suit in federal court unless the State

does not provide adequate remedies for obtaining

compensation.”).

This process virtually begs a federal court to

employ such preclusion doctrines as the Rooker-Feldman

doctrine, because in any other context, a litigant who

litigates in state court, loses, and then takes what appears to

be the same claim to a federal court, appears, at best, to be

trying for “two bites of the apple.” Under Williamson

County, however, this practice is deemed “ripening”:

Either the court must reconsider Williamson

County, or the court must reconcile the

concepts of claim and issue preclusion with

Williamson County in a manner that preserves

the state court ripening process while also

preserving the aggrieved citizens’ rights. This

includes preserving federal court jurisdiction

to determine the validity of their federal

constitutional claims. By forcing property

owners to proceed through a hopeless morass

of state court procedures through this

misapplication of the doctrine of res judicata,

those plaintiffs will never see the inside of a

federal courthouse.

Michael M. Berger, Evolving Voices in Land Use Law: A

Festchrift in Honor of Daniel R. Mandelker, Part II:

17

Discussions on the National Level, Chapter 3: Takings

Issues, 3 Wash. U. J.L. & Pol’y 99, 125-126 (2000).

Il. The Better View, Adopted by Some Courts, Is To

Harmonize the Two Doctrines, Thereby

Allowing Takings Litigants Access To Federal

Court Review of Their Federal Constitutional

Takings Claims.

To avoid the unfairness that is caused when these

two irreconcilable rules of law collide in the takings arena,

a number of courts have found a way to harmonize the two

disparate requirements. For example, a few Circuit Courts

of Appeal have simply declined to apply the Rooker-

Feldman doctrine in takings cases where the state court

could not or did not reach the federal takings claim on its

merits. In Gulla v. North Strabane Township, 146 F.3d 168

(3d Cir. 1998), the plaintiffs’ suit in state court to invalidate

a zoning decision was dismissed for lack of standing. The

Gulla plaintiffs then filed their constitutional case in the

federal court. Noting that a dismissal for lack of standing

is not an adjudication on the merits, the Third Circuit

concluded that the Gullas had the right to try those claims

in federal court despite the Rooker-Feldman doctrine:

In this case, we conclude that the Gullas are

18

not precluded from bringing their federal

claims because the state court could not and

did not adjudicate the merits of their

constitutional claims. Rather, the state court

noted that the Gullas lacked standing to raise

their constitutional claims in an appeal of the

Board’s subdivision decision. Since the Gullas

could not obtain an adjudication of their

claims in state court, they are not precluded

from raising their constitutional claims in the

federal forum.

Id. at 173 (citations omitted).

In Agripost, Inc. v. Miami-Dade County, 195 F.3d

1225 (11th Cir. 1999), the Eleventh Circuit rejected the

applicability of the Rooker-Feldman doctrine in a case

where the owner of a waste recycling facility first brought

suit in state court challenging revocation of its operating

permit and then, after losing, brought suit in federal district

court for the taking of its business without just

compensation. The just compensation issue was not and

could not have been tried in the state court case, the court

explained, because the claim for the denial of just

compensation did not arise and, indeed, could not have

arisen until after the permit was revoked and the property

taken. Since no such proceeding had occurred, Rooker-

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Feldman had no applicability to the case. Jd. at 1232; see

also Santini v. Connecticut Hazardous Waste Management

Service, 342 F.3d 118, 121 (2d Cir. 2003) (“Because

Santini did not raise, and could not have raised, his federal

takings claim in the state court action, we conclude that the

Rooker Feldman doctrine and res judicata do not apply.”);

Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 703 (7th

Cir. 1998) (rejecting Rooker-Feldman doctrine in case

alleging inverse condemnation: “Centres does not allege an

injury from the state court judgment itself; rather, it

challenges the actions of the defendants. Thus, Centres

seeks to ignore the state court judgment rather than to have

the federal court sit as an appellate court and overrule the

state court determination.”); Gooden v. Faulkner County

Sheriff's Dep't, 129 F.3d 121, 1997 WL 692993 at *1, 1

(8th Cir. Nov. 7, 1997) (“Upon de novo review, we

disagree that Gooden’s claim was barred by the Rooker-

Feldman doctrine.”).

Recently, in DLX, Inc. v. Kentucky, 381 F.3d 511

(6th Cir. 2004), the Sixth Circuit found the Rooker-

Feldman doctrine inapplicable because the takings claim at

issue had not been tried on its merits in the state court. In

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DLX, a plaintiff who was denied a state permit to mine in

an area designated as a National Natural Landmark sued

the state under Section 1983 for a taking of its property

without just compensation. Prior to filing suit in federal

court, the plaintiff had sought relief in state court; its case

was dismissed in the state trial court on ripeness grounds,

but then reversed by an intermediate court of appeals. The

Supreme Court of Kentucky upheld the dismissal based on

the lack of exhaustion of administrative remedies. When

the plaintiff brought suit in federal court, the state moved

for dismissal under the Rooker-Feldman docirine. The

Sixth Circuit held that the Rooker-Feldman doctrine did not

apply because an administrative exhaustion requirement is

not a component of a federal takings claim and thus, the

district court could have concluded that DLX had

established a regulatory taking of its property under the

Fifth Amendment and was entitled to relief without

undermining any of the state court’s conclusions. /d. at

517-18. The Sixth Circuit was disturbed, however, by what

it viewed as a continuing conflict between the Rooker-

Feldman doctrine and Williamson County’s requirements:

If DLX had in fact been allowed in the state

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courts to reach the merits of its taking claim

and then lost, it is likely that the formula

adopted by this circuit as applied in our past

cases would require Rooker-Feldman

abstention, in evident tension with Williamson

County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 195-97 (1985),

which clearly contemplates that a takings

plaintiff who loses her claim in state court will

have a day in federal court. The catch-22 of

the “Williamson trap” . . . with respect to res

judicata is also evident with respect to the

Rooker-Feldman doctrine. We do not need to

confront these tensions in this case, however,

and express no opinions as to the resolution of

this conflict.

Id. at 518 n.3.

CONCLUSION

For all of these reasons, amici curiae urge this

Court to construe the Rooker-Feldman doctrine in a way

that does not divest federal courts of jurisdiction to hear

Fifth Amendment takings claims that have been ripened in

compliance with Williamson County.

Respectfully submitted,

Nancie G. Marzulla*

Roger J. Marzulla

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DEFENDERS OF PROPERTY RIGHTS

1350 Connecticut Ave., N.W.

Suite 410

Washington, DC 20036

(202) 822-6770

*Counsel of Record for Amici

Curiae

Date: November 26, 2004

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