Amicus Curiae Brief — San Remo Hotel, LP v. City and County of San Francisco

| Supreme Court. DS

FILED

a

No. 04-340 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SAN REMO HOTEL, L.P.. ET AL..

Petitioners.

A

CITY AND COUNTY OF SAN FRANCISCO, ET AL..

Respondents

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

DEFENDERS OF PROPERTY RIGHTS AND

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

NANCIE G. MARZULLA ROBERT P. PARKER

ROGER J. MARZULLA Counsel of Record

DEFENDERS OF PROPERTY JOHN H. LONGWELL

RIGHTS ANDREW PUGLIA LEVY

1350 Connecticut Ave., N.W. PAUL, WEISS, RIFKIND,

Suite 410 WHARTON & GARRISON LLP

Washington, D.C. 20036 1615 L Street, N.W.

(202) 822-6770 Washington, D.C. 20036

(202) 223-7300

January 24, 2005 Counsel for Amici Curiae

(additional counsel listed on inside cover)

nN Naa

MICHAEL E. MALAMUT

New ENGLAND LEGAL

FOUNDATION

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

r

TABLE OF CONTENTS

Page

I acreciont il

INTERES ES OF AMICT CURIA. ....00:cccccceccsccrecssscvssersseeeeess l

Gf) 2

EEE 5

I. A TAKINGS CLAIM UNDER THE FIFTH

AMENDMENT IS RIPE WHEN A STATE

OR LOCAL ADMINISTRATIVE AGENCY

ISSUES A FINAL DECISION THAT HAS THE

EFFECT OF RESTRICTING THE USE CF

PRIVATE PROPERTY WITHOUT

EEE EES 5

Il. THIS COURT SHOULD EITHER CLARIFY OR

RECONSIDER WILLIAMSON COUNTY'S

PP I PFU Bo cccccccccccccccccccceseceseess 6

ei ernaeinadnacedcoccososcensntemeee tt

TABLE OF AUTHORITIES

Page

CASES

21st Century Telesis Joint Venture v. FCC, 318 F.3d

ff ee Ee ee 6

Adams Outdoor Advertising v. City of East Lansing,

2001 U.S. Dist. LEXIS 5549 (W_D. Mich. 2001)............ 15

Agins v. City of Tiburon, 447 U.S. 255 (1980)................. 6

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

(pL Ps ee ee ee es ie SOP 17

Agostini v. Felton, 521 U.S. 203 (1997)..............cccceeeee: 8

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

Ge GRR Gy ee esnccdnctnedtiniatiiitinindiei tee 17

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

CEE GR, Fee iacicsoctibimecnnittiiinidenidahémdidiiatiaiadeaes 2

Burton v. United States, 196 U.S. 283 (1905)...............0.. 8

City of Chicago v. International College of Surgeons,

aes Ce BE Ce ccennintennttiininidisidiidpiabaresienaieies 8

Crosby v. National Foreign Trade Council, 530

EE, Fe Gai tcnscenssccndsteensienuiinidnseee aie tiie 2

District of Columbia Court of Appeals v. Feldman,

SES GEE, SEs Gore itccccccectabsanbetvisesniaisliieiatnidiniens 14

DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511

GR GRR. Bie eco vsncivionmasccsdenasanieninaaana 5,17

Dodd v. Hood River County, 59 F.3d 852

GG, Bere cccscesecccstinisetsincnidnidhaasmeaiaeasias 14

Dodd v. Hood River County, 136 F.3d 1219

GEE. Fee cccseccrssinindiskimieiseteiaaiameaan 13,14

Dolan v. City of Tigard, 512 U.S. 374 (1994)............. 1, 16

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)............ 2

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

Chat Ce. FIED. <ccccescecccnncsncascevedsesossonnssqpsenscioesoceti 2

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

tt fe | eee 15

Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299

1) lo 9. Se aaron 13,14

Front Royal and Warren County Indus. Park Corp.

v. Town of Front Royal, 135 F.3d 275

66 Cie, BR incccccncccceccncscnscessiicsetstnetondenineiein 13,14

Gash Assoc. v. Village of Rosemount, 995 F.2d 726

CHa Cat. CIGD cccovccusectscnccessciscsicsndeescnssssenaenensdie 15

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003)....... 2

Hilton v. South Carolina Pub. Rys. Comm'n, 502 US.

DOP CIGD ED cccncicccacescncsscnerdesnaneesestascnnsnenennesneienens s

Jacobs v. United States, 290 U.S. 13 (1933)...............000 16

Jennings v. Caddo Parish School Bd., 531 F.2d 1331

(Sth Cir. 1976)....... pocccossseqescenseesasosnssponoasocconceontes 14

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

Kirby Forest Indus., Inc. v. United States, 467 U.S. 1

(BDO a 00ccceccscevecescnnssonsesedsedessecnmenniagdanresdesenend 12

Lucas v. South Carolina Coastal Council, 505 U.S.

BOEB (IDI. cocccccccccccccccosccccsgpencecuecesenctesessesvesectete l

Lujan v. National Wildlife Found., 497 U.S. 871 (1990).....6

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

UG. GBT (1DDD).....cccccccccccoccccsccsccrccscccccscvososesccsocose l

Neal v. United States, 516 U.S. 284 (1996).............0.+000 8

Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726

EE Sa MERE KL Ea ol Tes Tot 17

Palazzolo v. Rhode Island, $33 U.S. 606 (2001)........ 1,2,5

Palomar Mobilehome Park Ass'n v. City of San Marcos,

7 © Plt RE TA SRE 13

Parratt v. Taylor, 451 U.S. 527 (1981).................006 11-12

Peduto v. City of North Wildwood, 878 F.2d 725

RR a Ye 13,14

Printz v. United States, 521 U.S. 898 (1997)...... petebbassind X

Rainey Bros. Constr. Co. v. Memphis & Shelby County

Bd. of Adjustment, 178 F.3d 1295 (6th Cir. 1999)........... 13

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).......... 14

Ruckelshaus v. Monsanto Co., 467 U.S. 986

Seiniéaduaistdesncidanideveidasdihathaimiete tern tener 9-11

San Remo Hotel, L.P. v. San Francisco City and County,

PF 8 ee 14

Santini v. Connecticut Hazardous Waste Mgmt. Serv.,

342 F.3d 118 (2d Cir. 2004)....................ccecceceeee 5, 14,17

Suitum v. Tahoe Regional Planning Agency, __

Se oe ree l

Teague v. Lane, 489 U.S. 288 (1989)...... 22... ....ccccceeeeee 8

Vasquez v. Hillery, 474 U.S. 254 (1986)................ccccecen 8

United States v. Miller, 317 U.S. 369 (1943)................ 11

Williamson County Reg'] Planning Comm'n v.

Hamilton Bank of Johnson,

NE Se ee ee 2, 7-12, 16

Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d

Se Ee We crscscosesacsdddieinesiiaieensnaininal 13,15

iv

Constitutions

a ee 3,5

Statutes

IA, 6 BOR cecceccsscnsciccnsacsecsncincensincnreniessmnapenl 9

Other Authorities

Stephen E. Abraham, Williamson County Fifteen Years

Later: When is a Takings Claim (Ever) Ripe?, 36

Real Prop. Prob. & Tr. J. 101 (2001)..............cceeeeeeeeees 3

Alex F. Annett, The Heritage Foundation, How Congress

Can End the “Regulatory Limbo” Blocking Property

Susan Bandes, The Rooker-Feldman Doctrine:

Evaluating Its Jurisdictional Status, 74 Notre Dame L.

Bae, BET Cie eiecscocecsevecasussecovecssecsncscsccccoontecnsses 15

Michael M. Berger, The “Ripeness” Mess in Federal

Land Use Cases or How the Supreme Court Converted

Federal Judges into Fruit Peddlers, in Institute on

Planning, Zoning, and Eminer* Domain § 7 (Matthew

Michael M. Berger, Supreme Bait & Switch: The

Ripeness Ruse in Regulatory Takings, 2 Wash. U. J.L.

Be Bal y 9B BBD. .ccccccsccccccccoccecsccsccccesccsssesese 3-4, 16

John J. Delaney and Duane Desiderio, Who Will Clean

Up The “Ripeness Mess”? A Call for Reform So

Takings Plaintiffs Can Enter the Federal Courthouse,

SE Usd. Law. 195 CIGDPD. .cccccccccccccccccccccccecscccccccseses 13

BRIEF OF AMICI CURIAE

Maz Kidalov & Richard Seamon, The Missing Pieces of DEFENDERS OF PROPERTY RIGHTS AND NEW

the Debate Over Federal Property Rights Litigation,

27 Hastings Const. L.Q. 1 (1999) ....cccccccseeseseeeseeeove 3 ENGLAND LEGAL FOUNDATION

Douglas W. Kmiec, Disentangling Substantive Due ty ghey = amici curiae ged nd

Process and Taking Claims, 13 Zoning & Planning Law = se r bmit this brief ap oe ye ae seo

be eicrphenge pevpequevasadutudeonnteeerwasnseontsmnetbnisennel 4 ask that the jud t below be i!

18 James Wm. Moore et al., Moore's Federal Practice

131.12{1] (Matthew Bender 2003).........c0..eeseseesee0u 12 INTERESTS OF AMICI CURIAE

Defenders of Property Rights (“Defenders”) is the

Gregory M. Stein, Regulatory Takings and Ripeness in : = :

Federal Courts, 48 Vand. L. Rev. 1 (1995)......c..c000000« 16 only national public interest legal foundation devoted

exclusively to protecting private property rights. Defenders

participates in litigation across the country involving

property rights and the Takings Clause of the Constitution.

Since its founding in 1991, Defenders has participated in

many significant property rights cases before the United

States Supreme Court, including Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999); Suitum v. Tahoe Reg'l

Planning Agency, 520 U.S. 725 (1997); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Keene Corp. v. United States,

508 U.S. 200 (1993); and Lucas v. South Carolina Coastal

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

' All parties have consented to the filing of this brief. Letters evidencing

such consent have been filed with the Clerk of Court. No party or

counsel for a party to this case authored this brief in whole or in part,

and no person or entity other than amici curiae, their members, or their

counsel has made a monetary contribution to the preparation or

submission of this brief.

l

New England Legal Foundation (“NELF”) is a

non-profit, public interest law firm, incorporated in 1977

and headquartered in Boston, Massachusetts. Its member-

ship consists. of corporations, law firms, individuals and

others who support policies aimed at fueling economic

growth, protecting the free enterprise system and defending

economic rights. NELF regularly appears 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, including 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 (lst Cir. 2000);

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

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

Defenders and NELF have a vital interest in

protecting the rights of property owners from undue

interference by federal, state and local regulation and thus in

this Court’s decisions involving the Fifth Amendment’s

Takings Clause — the primary constitutional bulwark

against such in-terference.

SUMMARY OF ARGUMENT

This case provides an opportunity for the Court to

address the court of appeals’ treatment of Williamson

County Reg'l Planning Comm'n v. Hamilton Bank of

Johnson, 473 U.S. 172 (1985), as requiring that a property

owner claiming that state or local regulation effects an

unconstitutional taking under the Fifth Amendment must

“seek compensation through the procedures the State has

provided for doing so” — including full state court

adjudication — before a claim will be considered ripe in

federal court. For the reasons explained below, the more

appropriate view of the Fifth Amendment is that, when a

state or local administrative action restricting the use of

private property becomes final, and the regulatory authority

does not make restitution for resulting economic loss, the

property owner has a ripe claim in federal court that the state

or local government has “taken [property] for public use,

without just compensation.” U.S. Const. amend. V. Prior,

duplicative state-court litigation is not necessary to ripen

such a claim.

In our view, as we explain below, the Court’s

precedent leading up to Williamson County does not support

the court of appeals’ reading of the decision. Moreover,

even if the Court did intend Williamson County to impose

the “state litigation requirement,” that ruling is not

compelled by the text of the Fifth Amendment and this

Court may adopt a different interpretation if there are

sufficiently strong reasons to depart from the doctrine of

stare decisis.

Those reasons are present here. The state litigation

requirement has run headlong into preclusion and abstention

doctrines that deprive property owners in many cases of any

opportunity to litigate their regulatory takings claims in

federal court.? Indeed, Williamson County creates a “Catch

? Commentators have long noted that Williamson County’s ripeness

requirements create significant, unintended barriers to property owners

pursuing federal takings claims in federal court. See, e.g., Stephen E.

Abraham, Williamson County Fifteen Years Later: When is a Takings

Claim (Ever) Ripe?, 36 Real Prop. Prob. & Tr. J. 101, 104 (2001)

(“Williamson County is regarded as posing formidable hurdles because

of its two-part ripeness requirement, finality and compensation, that

ultimately may block takings claims.”); Maz Kidalov & .ichard

Seamon, The Missing Pieces of the Debate Over Federal Property

Rights Litigation, 27 Hastings Const. L.Q. 1, 5 (1999) (“The U.S.

Supreme Court has developed rules that make it almost impossible for

federal courts to remedy violations of the Just Compensation Clause.”).

22” for would-be federal takin zs plaintiffs: the federal court

has no jurisdiction until the state court suit is completed

(Williamson County), but completion of the state court suit

precludes relitigation in federal court pursuant to the

principles of res judicata, collateral estoppel and/or the

Rooker-Feldman doctrine. In practical effect, then, there is

no federal court remedy for regulatory takings. See

generally Michael M. Berger, The “Ripeness” Mess in

Federal Land Use Cases or How the Supreme Court

Converted Federal Judges into Fruit Peddlers, in Institute

on Planning, Zoning, and Eminent Domain § 7 (Matthew

Bender 1991); Douglas W. Kmiec, Disentangling

Substantive Due Process and Taking Claims, 13 Zoning &

Planning Law Report 57 (1990).

For example, in the present case, a California state

court held that petitioners had no claim against the City of

San Francisco. The Ninth Circuit then held that the state

court’s decision barred petitioners from litigating their

Takings Clause claim in federal court. Thus, Williamson

County’s ripeness requirement had the effect of granting the

state court the only word on whether the city’s regulation

constituted a taking — although the state court stated

unequivocally that it did not address the question as a matter

of federal constitutional law.

That inappropriate consequence cannot be what this

Court intended in Williamson County. Recognizing this,

courts of appeals in several circuits have jumped through

The state litigation requirement, when combined with the doctrines of

preclusion, has proven entirely unworkable. See, e.g., Michael M.

Berger, Supreme Bait & Switch: The Ripeness Ruse in Regulatory

Takings, 2 Wash. U. J.L. & Pol’y 99, 102 (2000) (“When property

owners follow Williamson County and first sue in state court, they are

met in some federal circuits with the argument that state court litigation,

far from ripening the federal cause of action, instead has extinguished

it.”).

linguistic or procedural hoops to avoid the harsh effects of

the preclusion and abstention doctrines when combined with

the state litigation requirement. See, e.g., Santini v.

Connecticut Hazardous Waste Mgmt. Serv., 342 F.3d 118,

130, 130 n.7 (2d Cir. 2004); DLX, Inc. v. Commonwealth of

Kentucky, 381 F.3d 511, 518 n.3 (6th Cir. 2004). But those

measures have resulted in a lack of uniformity in the lower

courts and, even in circuits in which one can avoid

preclusion or abstention by following certsin procedures,

traps for the unwary.

The appropriate answer to the chaotic and unfair

state of the law is for this Court, as only it can do, to set

aside the state litigation requirement. The Court should hold

that a property owner may challenge in federal court a state

or local regulation as an unconstitutional taking under the

Fifth Amendment as long as the application of the regulation

by the authority administering it is “final” within the

meaning of Williamson County.

ARGUMENT

I. A TAKINGS CLAIM UNDER THE FIFTH

AMENDMENT IS RIPE WHEN A STATE OR

LOCAL ADMINISTRATIVE AGENCY ISSUES A

FINAL DECISION THAT HAS THE EFFECT OF

RESTRICTING THE USE OF PRIVATE

PROPERTY WITHOUT COMPENSATION.

The Takings Clause of the Fifth Amendment

provides: “Nor shall property be taken for public use,

without just compensation.” U.S. Const. amend. V.

Property is “taken for public use” in a variety of ways

stopping short of actual condemnation by the government.

See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 617-18

(2001) (stating that a taking may occur when “a regulation

interferes with reasonable investment-backed expectations”)

(citing Penn Central Transp. Co. v. City of New York, 438

U.S. 104, 124 (1978)); Agins v. City of Tiburon, 447 U.S.

255, 260 (1980) (stating that application of a general

regulation constitutes a taking when either it does not

substantially advance a legitimate state interest or it denies

the owner economically viable use of her land). Because .

government regulations rarely provide compensation to

affected property owners, the dispositive legal issue in

“regulatory takings” claims under the Fifth Amendment is

ordinarily whether the regulation constitutes a “taking” as

defined by this Court’s precedent.

When a regulation (or, more often, a decision

applying a regulation in a particular case) becomes final, the

issue of whether it constitutes a taking is ripe for

adjudication. See Lujan v. National Wildlife Found., 497

U.S. 871, 891 (1990) (“[A] regulation is . . . considered . . .

‘ripe’ for judicial review . . . [once] the scope of the

controversy has been reduced to more manageable

proportions, and its factual components fleshed out, by some

concrete action applying the regulation to the claimant’s

situation in a fashion that harms or threatens to harm him.”);

cf. 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192,

198 (D.C. Cir. 2003) (“[A] claim is not ripe for adjudication

if it rests upon contingent future events that may not occur

as anticipated, or indeed may not occur at all”) (internal

quotation marks and brackets omitted). If a regulatory

action becomes final and the property owner receives no

compensation, then the constitutional question is squarely

presented. Requiring a property owner to challenge that

action in state court does not make the constitutional claim

more ripe — at best, it delays the resolution of the federal

claim, and, at worst, it bars a federal court from addressing

the constitutional issue at all.

——

II. THIS COURT SHOULD EITHER CLARIFY OR

RECONSIDER WILLIAMSON COUNTY'S

RIPENESS REQUIREMENT.

According to the court of appeals, in Williamson

County, the Court placed two ripeness hurdles in front of

takings claims brought in federal court against state and

local governments or their political subdivisions. The first

requirement — that a plaintiff receive a final administrative

decision from the agency whose action is being challenged

before filing in federal court — was satisfied in this case.

473 U.S. at 185. The purported second requirement — that

plaintiffs “seek compensation through the procedures the

State has provided for doing so” before turning to the

federal courts, id. at 194 — is at issue.

Several lower courts have read Williamson County to

mean that a property owner may not litigate any regulatory

takings claim in federal court before exhausting state

remedial options — including bringing a state court lawsuit.

It is not clear, however, that Williamson County mandates

that step. In that case, respondent had not obtained a final

administrative decision regarding the application of the

challenged zoning ordinance and subdivision regulations +o

its property. Thus, the federal court could not rule “until the

administrative agency [had] arrived at a final, definitive

position regarding how it will apply the regulations at issue

to the particular land in question.” Jd. at 191.’ Although the

Court made a passing reference to the state’s inverse-

condemnation procedures, id. at 197, because the Court did

> “As in Hodel, Agins, and Penn Central, then, respondent has not yet

obtained a final decision regarding how it will be allowed to develop its

property. Our reluctance to examine taking claims until such a final

decision has been made is compelled by the very nature of the inquiry

required by the Just Compensation Clause.” Williamson County, 473

U.S. at 190.

not base its holding on any failure to satisfy a state litigation

requirement, any language in the Court’s decision that might

be read as imposing such a requirement should properly be

viewed as dictum. See e.g., Printz v. United States, 521 U.S.

898, 963 (1997) (stating that the Court was not bound by

language in a prior case that “was wholly unnecessary to the

decision of the case”); cf. Burton v. United States, 196 U.S.

283, 295 (1905) (“It is not the habit of the court to decide

questions of a constitutional nature unless absolutely

necessary to a decision of the case.”).‘

Even if Williamson County did impose a state

litigation requirement, there are good reasons for this Court

to reconsider it.°

* The Court's more recent decision in City of Chicago v. International

College of Surgeons, 522 U.S. 156 (1997), moreover, supports the view

that Williamson County did not impose a state litigation requirement. In

International College, the Court concluded that the district court

properly granted the City’s motion to remove, inter alia, plaintiff's

federal takings claim despite the state court's having not determined the

issue of just compensation. 522 U.S. at 529-31.

* Stare decisis “is at its weakest” when a prior decision involved the

interpretation of the United States Constitution. Agostini v. Felton, 521

U.S. 203, 217 (1997) (stare decisis policy “is at its weakest when we

interpret the Constitution because our interpretation can be altered only

by constitutional amendment or by overruling our prior decisions”);

Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991)

(“Considerations of stare decisis have special force in the area of

statutory interpretation, for here, unlike in the context of constitutional

interpretation, the legislative power is implicated, and Congress remains

free to alter what we have done.”) (internal quotation marks omitted);

see also Neal v. United States, 516 U.S. 284, 295 (1996). This Court has

recognized an exception to stare decisis for precedents that have proved

“outdated, ill-founded, unworkable, or otherwise legitimately vulnerable

to serious reconsideration.” Vasquez v. Hillery, 474 U.S. 254, 266,

(1986); see also Teague v. Lane, 489 U.S. 288, 333 (1989) (Brennan, J.,

dissenting) (quoting Vasquez). The state litigation requirement that the

First, Williamson County’s doctrinal underpinnings

do not support a state litigation requirement. The Court in

Williamson County drew an analogy to claims brought

against the federal government under the Tucker Act. 473

U.S. at 194-95 (discussing Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 998-99 (1984)). In Monsanto, a chemical

company alleged that the government’s disclosure of trade

secrets submitted confidentially in compliance with the

Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”) amounted to an unconstitutional taking. 467

U.S. at 998-99. In the context of a takings claim against the

federal government, however, the Tucker Act provides the

exclusive procedural mechanism for pursuing compensation.

It also provides a federal forum for the resolution of such

cases.

The Court in Monsanto considered whether the

company could bring its Tucker Act suit immediately or first

had to exhaust FIFRA’s remedial provisions, which required

the company to participate in settlement or arbitration

proceedings. /d. at 1018-19. Seeking to reconcile the two

statutory remedies, the Court stated that “FIFRA does not

withdraw the possibility of a Tucker Act remedy, but merely

requires that a claimant first seek satisfaction through the

statutory procedure.” Jd. at 1018. The Court explained that

“(e}xhaustion of the statutory [FIFRA] remedy is necessary

to determine the extent of the taking that has occurred. To

Ninth Circuit has drawn from Williamson County presents just such a

circumstance.

® The Tucker Act provides, in part: “The United States Claims Court

shall have jurisdiction to render judgment upon any claim against the

United States founded . . . upon the Constitution, or any Act of

Congress.” 28 U.S.C. § 1491. The Tucker Act thus specifies which

federal forum is available; by no means does the statute deprive the

property owner of a federal forum — the unfortunate and unnecessary

result in this case.

the extent the operation of the statute provides

compensation, no taking has occurred and the original

submitter has no claim against the government.” /d.

The Court in Williamson County, relied on Monsanto

to conclude that: 4

taking claims against the Federal

Government are premature until the property

owner has availed itself of the process

provided by the Tucker Act. Similarly, if 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.

473 US. at 195.

Monsanto’s holding was not so broad. The Court

did not require that the company “avail[] itself of the

process provided by the Tucker Act,” id. at 195 (emphasis

added); the Court’s analysis focused only on the

requirements of FIFRA. But for the settlement/arbitration

provisions of FIFRA, a Tucker Act claim would have been

immediately available. Unlike the extended administrative

and state court proceedings required to ripen a taking claim

under Williamson County, a Tucker Act claim is ripe as soon

as a remedy is denied under the challenged statute. See

Monsanto, 467 U.S. at 1018.

Monsanto, therefore, provides no basis for

Williamson County’s conclusion that the Fifth Amendment

requires a property owner to first seek compensation in state

court. If anything, Monsanto’s rule leads to a reading of

Williamson County in which a takings claim against a state

or local government is ripe when the administrative agency

has rendered a final determination as to the challenged

10

oe —

regulation. Williamson County should not be read as

extending the holding in Monsanto that the company had to

exhaust FIFRA’s remedial provisions as equivalent to its

state court litigation requirement.’

The other case cited in Williamson County for the

state court exhaustion principle, Parratt v. Taylor, 451 U.S.

527 (1981), was a Due Process Clause decision and likewise

does not support reading a state litigation requirement into

the Fifth Amendment. In Parratt, the Court held that a

prisoner’s due process claim under § 1983 was not ripe until

provided by state law. /d. at 543. The Court in Williamson

County explained that “[a] person . . . does not state a claim

under the Due Process Clause merely by alleging the

deprivation of property,” and that “the Constitution is

satisfied by the provision of meaningful process.” 473 U.S.

at 195 (“[A] state’s action is not complete [in the sense of

causing a constitutional injury] unless or until the state fails

to provide an adequate postdeprivation remedy for the

property loss.”) (citing Hudson v. Palmer, 468 U.S. 517,

532 n.12 (1984)). Parratt does not require that a party

pursue all available state-court remedies. Reading a state

litigation requirement into Williamson County thus fails to

recognize the fundamental distinction between the Takings

Clause and the Due Process Clause: The Takings Clause

requires more than just adequate process, it guarantees a

result —specifically, the fair value, in money, of the

property taken. See United States v. Miller, 317 U.S. 369,

” The Monsanto decision hinged on the specific provisions of FIFRA.

The exhaustion requirement the Court announced may well be

inapplicable to federal government actions taken pursuant to other, if not

most, statutes. “Generally, an individual claiming that the United States

has taken his property can seek just compensation under the Tucker

Act.” 467 U.S. at 1017.

11

379-80 (1943); Kirby Forest Indus., Inc. v. United States,

467 U.S. 1, 10 (1984).*

Second, the state litigation requirement that the

courts of appeals have drawn from Williamson County has

had the unintended and unfair consequences of completely

depriving property owners of a federal-court remedy for

violation of their Fifth Amendment rights.

The long-established rules of claim and issue

preclusion bar the relitigation of claims or issues in federal

court once a state court decides them. These doctrines are a

“fundamental rule of law that serve an important public

interest by ensuring a decisive end to litigation.” 18 James

Wm. Moore et al., Moore’s Federal Practice 131.12{[1]

(Matthew Bender 2003) (citing Federated Dept. Stores, Inc.

v. Moitie, 452 U.S. 394, 401 (1979) (“The doctrine of res

judicata serves vital public interests . . . This Court has long

recognized that ‘[public] policy dictates that there be an end

of litigation; that those who have contested an issue shall be

bound by the result of the contest, and that matters once

* Parratt is distinguishable on its facts, as well. The challenged conduct

in Parratt was “a random and unauthorized act by a state employee.”

451 U.S. at 541. This circumstance made provision of a pre-deprivation

hearing “impossible or impracticable” and led to the conclusion that

resort to a state’s post-deprivation remedial process was sufficient and

necessary. Williamson County, 473 U.S. at 195. As a consequence of

this “random act” predicate, Parratt has no applicability to situations “in

which the deprivation of property is effected pursuant to an established

state policy or procedure, [because in such cases] the state could provide

predeprivation process.” Jd at 195.14. Because a taking of private

property is presumably effected pursuant to an established policy or

procedure, Parratt’s post-deprivation process rule is inapplicable in the

takings arena.

12

tried shall be considered forever settled as between the

parties... ””)).”

Circuit courts have applied these principles to hold

that once a takings case is litigated in state court, it cannot

be relitigated in federal court. See, e.g., Rainey Bros.

Constr. Co. v. Memphis & Shelby County Bd. of Adjustment,

178 F.3d 1295 (6th Cir. 1999) (affirming district court’s

dismissal of takings claim adjudicated in state court based

on res judicata), cert. and reh'g denied, 528 U.S. 871

(1999); Front Royal and Warren County Indus. Park Corp.

v. Town of Front Royal, 135 F.3d 275 (4th Cir. 1998); Dodd

v. Hood River County, 136 F.3d 1219 (9th Cir. 1998)

(affirming district court’s dismissal of a takings claim

adjudicated in state court based on issue preclusion);

Wilkinson v. Pitkin County Bd. of County Comm'rs, 142

F.3d 1319 (10th Cir. 1998); Palomar Mobilehome Park

Ass'n v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993);

Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299

(11th Cir. 1992); Peduto v. City of North Wildwood, 878

F.2d 725 (3d Cir. 1989). See also John J. Delaney and

Duane Desiderio, Who Will Clean Up The “Ripeness

Mess”? A Call for Reform So Takings Plaintiffs Can Enter

the Federal Courthouse, 31 Urb. Law. 195, 203 (1999)

(“[P]roperty owners received no resolution of their taking

claims in 83 percent of [federal] District Cases [from 1990-

* Yet, this Court’s decision in Williamson County only prolongs

litigation. It effectively requires that a would-be federal takings plaintiff

challenge the allegedly unconstitutional state action twice — once in

state court, once in federal court. In other words, far from discouraging

the “second bite of the apple” that the preclusion doctrines are intended

to prevent, Williamson County force feeds it. Courts thus t ve had to

choose between traditional rules of preclusion and district court

jurisdiction on the one hand and Williamson County’s state litigation

requirement on the other.

13

1998]”).'° As this case demonstrates, a federal taking claim

may be barred, even when a state court expressly decides

only state-law issues.

Relatedly, courts have employed the Rooker-

Feldman doctrine to deprive Williamson County state-court

litigants of federal just compensation remedies. See Rooker

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

Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983). These cases together stand for the proposition that

parties aggrie\ed by a state-court decision cannot appeal

that decision to a federal district court; rather, they must

petition for a writ of certiorari from the United States

'° The Third, Sixth and Tenth Circuits have been the most strict in

applying the doctrine of res judicata to prevent litigants from trying to

exercise their rights under the Fifth Amendment and 42 U.S.C. § 1983.

See, e.g., Wilkinson v. Pitkin County Bd. of Comm'rs, 142 F.3d 1319,

1325 (10th Cir. 1998); Peduto v. City of North Wildwood, 878 F.2d 725,

726-728 (3d Cir. 1989).

The Second, Fourth, Fifth and Eleventh Circuits avoid res judicata

by allowing property owners to file initially in federal court while filing

a “reservation” in state court. This “reservation” allows the state court

to hear issues of state law while reserving federal constitutional issues to

be decided later by a federal trial. See, e.g, Santini v. Connecticut

Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130, 130 n.7 (2d Cir.

2004); Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299 (11th

Cir. 1992); Front Royal & Warren County Indus. Park Corp. v. Town of

Front Royal, 135 F.3d 275 (4th Cir. 1998); Jennings v. Caddo Parish

School Bd., 531 F.2d 1331 (Sth Cir. 1976).

The Ninth Circuit has vacillated about which approach to take. It

hinted at accepting the approach of the Fourth and Eleventh Circuits in

Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) (Dodd J).

However, in Dodd I] it went back to its old :pproach of invoking res

judicata. Dodd v. Hood River County, 136 F.3d 1219 (9th Cir. 1998)

(Dodd II). The Ninth Circuit relied on Dodd J] in the instant case in

holding that issue preclusion barred petitioners’ federal takings claim.

San Remo Hotel, L.P. v. San Francisco City and County, 364 F.3d 1088,

1095 (9th Cir. 2004).

14

Supreme Court. See generally Susan Bandes, The Rooker-

Feldman Doctrine: Evaluating Its Jurisdictional Status, 74

Notre Dame L. Rev. 1175 (1999). See, e.g., Wilkinson, 142

F.3d at 1324-25 (stating the ripeness requirement in a

federal takings claim is insufficient to preclude application

of res judicata and collateral estoppel principles, and

Rooker-Feldman doctrine precludes federal courts from

reviewing state court judgments); Gash Assoc. v. Village of

Rosemount, 995 F.2d 726, 728-29 (7th Cir. 1993) (holding

that under Rooker-Feldman, federal takings plaintiffs cannot

file collateral attacks on state court’s civil judgments in

federal district court, but instead must seek review in the

Supreme Court); Adams Outdoor Advertising v. City of East

Lansing, 2001 U.S. Dist. LEXIS 5549, *1, 12-15 (W.D.

Mich. 2001) (granting summary judgment to municipal

takings defendant based on Rooker-Feldman doctrine).

Rooker-Feldman, therefore, represents another means by

which a state litigation requirement applied by the courts of

appeals deprives takings litigants of their day in federal

court.

In sum, the requirement of duplicative adjudication

of the same claim, in addition to being a time-wasting hurdle

for the courts and litigants even when a federal claim is

allowed, often altogether bars federal courts from reviewing

plaintiffs’ Fifth Amendment claims for just compensation.

In fact, between 1990 and 1997, federal courts, citing

Williamson County, declined to review over 90 percent of

all cases that dealt with land-use takings issues. Alex F.

Annett, The Heritage Foundation, How Congress Can End

the “Regulatory Limbo” Blocking Property Owners’ Access

'' The Third Circuit recently expanded Rooker-Feldman further 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, 104 (3d Cir. 2004), cert. granted, 125 S.Ct. 310 (2004).

15

to Justice, FYI No. 154 October 1, 1997. No other

federally-protected right is so encumbered by a state

litigation requirement or other precunditions to federal

litigation. See, e.g., Gregory M. Stein, Regulatory Takings

and Ripeness in Federal Courts, 48 Vand. L. Rev. 1, 23

(1995) (“The state compensation portion of [Williamson]

finds no parallel in the ripeness cases fro: : » .er areas of the

law.”). And no other class of federal consu‘uvional plaintiffs

are so routinely shut out of the federal courthouse. See

Michael M. Berger, Supreme Bait & Switch, 2 Wash. U. J.L.

& Pol’y, at 124.

The Court should disavow any reading of

Williamson County that requires such a result. For one

thing, it is anomalous to suggest that a right guaranteed by

the United States Constitution may not be litigated in federal

court. See Dolan v. City of Tigard, 512 U.S. 374, 392

(1994) (“We see no reason why the Takings Clause of the

Fifth Amendment, as much a part of the Bill of Rights as the

First Amendment or Fourth Amendment, should be

relegated to the status of a poor relation in these comparable

circumstances.”); Jacobs v. United States, 290 U.S. 13, 15

(1933) (stating that an inverse condemnation suit rests on

the Fifth Amendment and is therefore based on the

Constitution: “The form of the remedy did not qualify the

right. It rested upon the Fifth Amendment. Statutory

recognition was not necessary.”).

Furthermore, no such intention can reasonably be

gleaned from the Court’s language in Williamson County.

There, in concluding that respondent’s claim was

“premature,” 473 U.S. at 185 (emphasis added), the Court

explained that respondent “has not yef” complied with the

Court’s ripeness requirements, id. at 186 (emphasis added),

and that its federal claim “[will] not be ripe until” it does so,

id. at 495 (emphasis added). This, of course, is logical: the

16

doctrine of ripeness seeks to postpone consideration of

claims where to do so would be premature. See Ohio

Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 734

(1998) (stating that withholding consideration of petitioner’s

claim would not cause significant hardship because

respondent would have “ample opportunity to bring its legal

challenge [at a later time]”). But ripeness should not be used

to preclude parties from bringing claims at all.

Recognizing the gravity of the current state of affairs

for takings plaintiffs, some circuits have crafted exceptions

to the preclusion and Rooker-Feldman doctrines for

plaintiffs who unwillingly litigate their takings claims in the

first instance in state court pursuant to Williamson County.

See, e.g., DLX, Inc., 381 F.3d at 518 n.3 (refusing to apply

Rooker-Feldman to bar petitioner's takings claim:

“Williamson County . . . clearly contemplates that a takings

plaintiff who loses her claim in state court will have a day in

federal court”); Santini, 342 F.3d at 130, 130 n.7 (holding

that, notwithstanding preclusion and Rooker-Feldman

doctrines, federal courts may hear takings cases where

petitioners pursue their inverse condemnation action in state

court to comply with Williamson County but reserve their

federal claim pursuant to England v. Louisiana Bd. of

Medical Examiners, 375 U.S. 411 (1964)); Agripost, Inc. v.

Miami-Dade County, 195 F.3d 1225 (11th Cir. 1999), cert.

denied, 531 U.S. 815 (2000) (rejecting applicability of

Rooker-Feldman doctrine in takings case where litigation in

state court was necessitated by Williamson County); cf.

Anderson v. Charter Township of Ypsilanti, 266 F.3d 487,

~ 497 (6th Cir. 2001) (holding that Rooker-Feldman bars

federal takings claim where plaintiff brought both federal

and state takings claims in state court and, after removal and

remand, failed to reserve federal claim).

17

This piecemeal approach, whereby circuit courts

seek to circumvent the harsh effects of Williamson County,

is inadequate to address the inequities leveled against

takings plaintiffs throughout the country who seek federal

guardianship of their Fifth Amendment rights from state and

local regulatory decisions. The current ripeness procedure

required by some circuit courts of appeal in the name

Williamson County compromises the efficient functioning of

the court system and simultaneously undermines a

fundamental constitutional right.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

NANCIE G. MARZULLA ROBERT P. PARKER

ROGER J. MARZULLA Counsel of Record

DEFENDERS OF PROPERTY JOHN H. LONGWELL

RIGHTS ANDREW PUGLIA LEVY

1350 Connecticut Ave., N.W. PAUL, WEISS, RIFKIND,

Suite 410 WHARTON & GARRISON LLP

Washington, D.C. 20036 1615 L Street, N.W.

(202) 822-6770

MICHAEL E. MALAMUT

NEW ENGLAND LEGAL

FOUNDATION

150 Lincoln Street

Boston, MA 02111

(617) 695-3660

January 24, 2005

Washington, D.C. 20036

(202) 223-7300

Counsel for Amici Curiae

18