Opposition Brief — Horne v. Dep't of Agric., 135 S. Ct. 1039 (2015) (No. 14-275)

Suprene Ceud, U.S.

FILED

DEC 8 - 2014

No. 14-275 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

MARVIN D. HORNE, ET AL., PETITIONERS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

JOYCE R. ee P

isting ——_

General

MICHAEL S. RAAB

JOSHUA WALDMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Secretary of Agriculture’s marketing

order stabilizing the market for California raisins—

under which a percentage of the raisins that a pro-

ducer offers for sale may be required to be sold in a

manner directed by the Secretary, with the producer

retaining equitable rights in the proceeds—effects a

per se taking under the Just Compensation Clause.

(DP

De eee hn aia ee eo ee

TABLE OF CONTENTS

Page

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I icererctnssemmenenenmmmmmmmene 15

GREET ccnsenercesetiniasemienesesssnenanmunnimtennequnenntesesqnaneeusnnotstuneemnantentt 27

TABLE OF AUTHORITIES

Cases:

Anderson v. Spear, 356 F.3d 651 (6th Cir.),

cert. denied, 543 U.S. 956 (2004) 20.0.........ccccccccccceeeeneeeeneeeees 22

Andrus v. Allard, 444 U.S. 51 (1979) .2.......:ccccecceeeseeceeeseeeeees 20

Block v. Community Nutrition Inst., 467 U.S. 340

ST itis iaiare acai lcaatatitalladatanntdiaasiacacaadiaiiaiasidiiaasincegtiy 2

Brown v. Legal Found. of Wash., 538 U.S. 216 (2003).......26

Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244

(Fed. Cl. 1994), aff'd, 73 F.3d 381 (Fed. Cir.

1995)(TbI.), cert. denied, 519 U.S. 963 (1996) ................... 20

Carruth v. United States, 627 F.2d 1068 (Ct. Cl.

ee ae EEE 20

Casitas Mun. Water Dist. v. United States, 543 F.3d

BI GCE. CP. SID ccncccsscagsescsccssersccssnssensessesesescascescosses 23, 24

Cerajeski v. Zoeller, 735 F.3d 577 (7th ee 22

Dolan v. City of Tigard, 512 U.S. 374 (1994) ............000+. 14, 24

Evans v. United States, 74 Fed. Cl. 554 (Fed. Cl.

2006), aff'd, 250 Fed. Appx. 321 (Fed. Cir. 2007),

cert. denied, 552 U.S. 1187 (2008)...........:ccceeseeeseeeseees 17, 20

GTE Nw., Inc. v. Publt Util. Comm'n, 900 P.2d 495

(Or. 1995), cert. denied, 517 U.S. 1155 (1996)................... 24

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.

a CIT icsnininstianisncbinsitnciinbinghinisibdnauiiiagsnmaiemaieempnne 2

(IIT)

Cases—Continued: Page

Gulf Power Co. v. United States, 187 F.3d 1324

Ge hrtictecrcrnnstesetcssiesptnernsamininnmnienemunininnemansesss 23, 24

Larson v. Domestic & Foreign Cummene Corp.,

ee icentsinnrncpinesnianneniineaeninmienenvememesnens 27

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

TT chiceitrinndnnasigrtnictianarensmmesenbmmmiinintnmbimamanpiatates 15, 16, 17, 19

Lion Raisins, Inc. v. United States, 416 F.3d 1356

Pe ccceiniccinerinnnseinteseneseeitinbttiiaianenpaianasininitadscenied 4,5,19

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............... pnasenngucenanes 12, 13, 17, 18

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

Re ienpncvennsvsstectenieresnemetenementemenees 12, 15, 16, 18, 21

Nixon v. United States, 978 F.2d 1269 (D.C. Cir.

CEP dnecccsicesdemataninmtastnemtintennpeentnttnedimtsenienimunenemmens 22

Nollan v. California Coastal Comm’n, 483 U.S. 825

a sayfhesseunesesnenenessensansnnesssneneqnsnenssncesacerenees 14, 24

Parker v. Brown, 317 U.S. 341 (19438)..........ccccseseseeeesereseneees 4

Penn Cent. Transp. Co. v. City of New York, 438 U.S.

IIE ii srhiscnsictresitinnceendeniainpiaitiinmeniaiatataitaeatiapeasapepmaaiasnatats 12, 16

Porter v. United States, 473 F.2d 1329 (5th Cir. 1973) ......22

Prune Bargaining Ass'n v. Butz, 444 F. Supp. 785

(N.D. Cal. 1975), aff'd, 571 F.2d 1132 (9th Cir.

1978), cert. denied, 439 U.S. 833 (1978) ..............--2..cceeeseee 20

Rose Acre Farms, Inc. v. United States, 373 F.3d

1177 (Fed. Cir. 2004), cert. denied, 545 U.S. 1104

STITT insincere ates treatin ceeeiiatiareadaiatdiad taceaasi tin aia atenenas 22

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)............ 27

United States v. Corbin, 423 F.2d 821 (10th Cir.

ETERS et ora en Seno SO RT 22

United States v. Rock Royal Co-Op Inc., 307 U.S. 533

SSTrrrri scecseciinensivincein itch dteiinasbabieinaaienceiaabuibainiaaasigasinieiiaimenl 20

Case—Continued: Page

Wallace v. Hudson-Duncan & Co., 98 F.2d 985

PUN: GUITITTE assists hipaieicsnetnedicincnaieateuinpiiiaaiataiahiginhiaiaitinnenesasia 20

Constitution, statutes and regulations:

U.S. Const. Amend. V (Just Compensation

Be iscintncncnciemencnnnnnsintetmiiinmpanieiitataintmeensene 10, 15, 25, 26

Agricultural Adjustment Act, 7 U.S.C. 601 et seq.:

OF Ti icicensic op tccsieitemniientetanaenieesnetpedenneaiasienianimmenpitiinisisiseias 2

BF a i itcinetsnesensnerecininiitiinicaitiaaniniiattinitiatinineisamanesssaiisiasiaaeeal 2

Oe icant cance inaceetitaintdintinaainaili 2

OF tiie ies iia el 2

, «£m mE 2

F Greiits GED cececcnccsccesnsccesntenndmnseses 3, 4, 6, 13, 18, 19

iia ceili ill atl aaa 3

, sd ene 3, 25

ill aaa 8

fk Te 3, 25

Agricultural Marketing Agreement Act of 1937,

8 8 ee passim

Tucker Act, 28 U.S.C. 1491(a)(1) ......ccccccccccccsccccccsescescoceee 11, 27

7 C.F.R.:

Pt. 3:

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EERIE Sn ene ne ee Oe 25

it aw i isscisicnitecsiecnansctibicsintiininiaddemnatorsiimiaiaaiend 25

aka ice ai el OO 25

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Ira TTA snlecnnchhresichscrnsinessieietinieaeesenesnielhiebinriinctatinahideiatanaiiniieataitiaitnte 3

I aaah cael aaa 5

Regulations—Continued: Page

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Sections 9B9.65-9B9.67 ...........ecceccccscscecescecsessersessereeres 19

EEE Oe 4,5

I 5, 17, 19, 23

EE 6, 13, 18, 19

Se Le 6

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Soran are iaihsincininemmetsenichaeinilineiciiigiig tala aid 25

Miscellaneous:

54 Fed. Reg.:

Ee 25

I 25

71 Fed. Reg. 29,569 (May 23, 2006).................cccccscessescececsereees 3

vil

Miscellaneous—Continued:

Office of Mgmt. & Budget, OMB No. 0581-0178 (Jan.

2014), http://www.ams.usda.gov/AMSv1.0/getfile?

dDocName=STE LPRDC5094721 |... cccecseeesseneeneenes

Raisin Admin. Comm.:

Marketing Policy & Industry Statistics 2013

(Oct. 24, 2013) http//www.raisins.org/images/

marketing %20policy%202013. pdf ......ccoccovsswsssscee

Memo to All 2003-2004 Natural (sun-dried)

Seedless Growers regarding 2003-04 Natural

(sun-dried) Seediess Reserve Pool (June 23,

oe canciciesnnstensteiannctesanesicinistiannaiianiniatesmnenentoanes

Minutes of the Raisin Administrative Commit-

tee (Aug. 14, 2014), http:// www.raisins.org/

index. ‘‘ettadaimanteemmntaieaae

14-2014 nassnanansansousensnscenttnensasncsinmnesussquesnsasecscenses

Statement of Disposition and See Equity

2002-03 Natural Seedless Reserve Pool...............

In the Supreme Court of the Gnited States

No. 14-275

MARVIN D. HORNE, ET AL., PETITIONERS

Vv.

UNITED STATES DEPARTMENT OF AGRICULTURE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

29a) is reported at 750 F.3d 1128. The opinion of the

district court (Pet. App. 125a-189a) is not published in

the Federal Supplement, but is available at 2009 WL

4895362.

JURISDICTION

The judgment of the court of appeals was entered

on May 9, 2014. On July 16, 2014, Justice Kennedy

extended the time within which to file a petition for a

writ of certiorari to and including September 8, 2014,

and the petition was filed on that date. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Agricultural Marketing Agreement Act of

1937 (AMAA), ch. 296, 50 Stat. 246, was enacted dur-

(1)

2

ing the Great Depression “in response to plummeting

commodity prices, market disequilibrium, and the

accompanying threat to the nation’s credit system.”

Pet. App. 193a; see 7 U.S.C. 601. The AMAA “con-

templates a cooperative venture” among the Secretary

of Agriculture (Secretary), agricultural producers,

and handlers of agricultural products, “the principal

purposes of which are to raise the price of agricultural

products and to establish an orderly system for mar-

keting them.” Block v. Community Nutrition Inst.,

467 U.S. 340, 346 (1984); see 7 U.S.C. 602 (declaration

of policy); Glickman v. Wileman Bros. & Elliott, Inc.,

521 U.S. 457, 461-462 (1997).

To achieve these goals, the Secretary is authorized

to promulgate marketing orders that regulate the

“handling of [certain] agricultural commodit{ies] or

product(s] thereof,” in interstate or foreign commerce.

7 U.S.C. 608c(1). Marketing orders do not directly

regulate “producers” (i.e., the farmers) who grow the

agricultural commodities. Instead, marketing orders

directly regulate only the “handlers” of agricultural

commodities and products (i.e., those who process the

products for marketing). See 7 U.S.C. 608c(1); see 7

C.F.R. 989.11, 989.15 (regulatory definitions of raisin

producers and handlers). The Secretary may choose

among various market-regulation tools, such as limit-

ing the total quantity of a commodity or product that

can be marketed or transported, 7 U.S.C. 608c(6)(A)

and (C); allotting the amount that each handler may

purchase from or handle on behalf of any or all pro-

ducers, 7 U.S.C. 608c(6)(B); or (as directly relevant

here) establishing “reserve pools of any such commod-

ity or product” and “providing for the equitable dis-

tribution of the net return derived from the sale

3

thereof among the persons beneficially interested

therein,” 7 U.S.C. 608¢e(6)(E).

In general, a marketing order proposed by the Sec-

retary does not become effective unless approved by

two-thirds of producers (by number or by volume of

production). 7 U.S.C. 608c(8) and (9). Similarly, the

Secretary must terminate any marketing order when

termination is favored by more than 50% (by volume)

of the producers. 7 U.S.C. 608c(16)(B); 7 C.F-.R.

989.91(c).

2. This case concerns the marketing order that

regulates the market for California raisins. See

7 C.F.R. Pt. 989. The California raisin industry ac-

counts for 99.5% of the domestic supply, and 40% of

the world’s supply, of raisins. Pet. App. 196a n.7.

The domestic demand for raisins is relatively stable,

averaging approximately 210,000 tons per year. See

Raisin Admin. Comm., Marketing Policy & Industry

Statistics 2013 4 (Oct. 24, 2013) (Raisin Statistics), http://

www.raisins.org/images/marketing*%20policy%202013.pdf.

The annual raisin supply, however, can fluctuate dra-

matically depending upon the amount of planting in

prior years; the presence of weather patterns that

affect the sun-drying method of producing raisins; and

the profitability of alternative uses for grapes, includ-

ing sale as fresh grapes, wine, or juice. See 71 Fed.

Reg. 29,569 (May 23, 2006). For example, the 1998-

1999 crop year yielded_approximately 240,000 tons of

natural seedless raisins, while the 2000-2001 crop year

yielded more than 430,000 tons. Jbid. The fluctua-

tions in raisin supply “can result in producer price

instability and disorderly market conditions.” J/bid.

Before the enactment of the AMAA, raisin growers

had in some years been forced to sell their raisins “at

4

prices regarded by students of the industry as less

than the cost of production.” Pet. App. 4a (quoting

Parker v. Brown, 317 U.S. 341, 364 (1943)).

Following a spike in production that caused raisin

prices to decline sharply from $235 per ton to $40-$60

per ton, the Secretary in 1949 issued the marketing

order for California raisins “at the request of the

raisin industry.” Pet. App. 4a, 4‘a, 196a. The raisin

marketing order sought “to stabilize producer returns

by limiting the quantity of raisins sold by handlers in

the domestic competitive market.” Lion Raisins, Inc.

v. United States, 416 F.3d 1356, 1359 (Fed. Cir. 2005).

The order maintains a stable market price by, under

certain circumstances, controlling raisin supply

through the establishment of annual “reserve pools”

of raisins that will not be released immediately into

the open domestic market. See 7 U.S.C. 608c(6)(E);

7 C.F.R. 989.54(d), 989.65. The program is designed

“to keep raisin supply relatively constant from year to

year, smoothing the raisin supply curve and thus

bringing predictability to the market for producers

and consumers alike.” Pet App. 2a.

The raisin marketing order establishes the Raisin

Administrative Committee (RAC), consisting of 47

members, with 35 representing producers, 10 repre-

senting handlers, one representing a cooperative

bargaining association, and one representing the pub-

lic. See 7 C.F.R. 989.26. Producers and handlers

nominate their representatives to the RAC and vote

for their preferred candidates; the Secretary selects

from those nominees or other eligible producers and

handlers. See 7 C.F.R. 989.29, 989.30.

The raisin marketing order requires handlers to

file certain reports with the RAC, such as reports

5

concerning the quantity of raisins they hold or ac-

quire. 7 C.F.R. 989.73. The order additionally re-

quires handlers to allow the RAC access to their

premises, raisins, and business records to verify the

accuracy of the handlers’ reports. 7 C.F.R. 989.77.

The order also requires handlers to obtain inspections

of raisins they acquire, 7 C.F.R. 989.58(d), and to pay

certain assessments, 7 C.F.R. 989.80, which help de-

fray the RAC’s administrative costs, including the

costs of enforcing the marketing order, Pet. App.

128a.

Every year, the RAC reviews the crop yield, inven-

tories, and shipments of raisins and determines

whether to recommend that the Secretary establish

reserve pools for any or all of the eight varietal types

of raisins. 7 C.F.R. 989.54; see 7 C.F .R. 989.10. If the

RAC recommends a reserve pool, it further recom-

mends what portion of the year’s production should be

included in that pool (the “reserve percentage”), with

the balance made available for sale on the open mar-

ket (the “free percentage”). 7 C.F.R. 989.54(d),

989.55. Based on the percentages recommended by

the RAC and set by the Secretary, the raisins that a

handler receives from producers are then divided into

two groups: “free tonnage” and “reserve tonnage.”

7 C.F.R. 989.65.

The handler pays producers for the free tonnage at

market prices and may resell those raisins without

restriction. 7 C.F.R. 989.65; Lion Raisins, 416 F.3d at

1360. Producers do not receive immediate direct

payment for the reserve tonnage. Lion Raisins, 416

F.3d at 1360. The handler holds the reserve tonnage

“for the account of the [RAC],” 7 C.F.R. 989.66(a),

with producers entitled to an “equitable distribution of

6

the net return” from such raisins, 7 U.S.C. 608c(6)(E);

see 7 C.F.R. 989.66(h) (“The net proceeds from the

disposition of reserve tonnage raisins * * * shall

be distributed by the committee to the respective

producers * * * on the basis of the volume of their

respective contributions.”). No provision of the mar-

keting order divests the producer of title to the re-

serve raisins, which are generally treated as the pro-

ducers’ “sole and absolute property.” See Office of

Mgmt. & Budget (OMB), OMB No. 0581-0178 (Jan. 2014)

(Assignment Form), http://www.ams.usda.gov/AMSv1.0/

getfile?dDocName=STELPRDC5094721 (form for as-

signing interest in reserve raisins).

The regulations governing the disposal of reserve-

tonnage raisins require that the raisins “shall be sold

to handlers at prices and in a manner intended to

maxim[ize] producer returns and achieve maximum

disposition of such raisins by the time reserve tonnage

raisins from the subsequent crop year are available.”

7 C.F.R. 989.67(d)(1). The RAC can direct the dispos-

al of the reserve raisins in a variety of ways not ex-

pected to undermine domestic market prices for free-

tonnage raisins. Lion Raisins, 416 F.3d at 1359-1360;

see 7 C.F.R. 989.67. Reserve tonnage is often sold,

following an initial delay, as free tonnage that can

enter the domestic raisin market without restriction.

7 C.F.R. 989.54(g), 989.56. The RAC uses the pro-

ceeds from the sale of reserve raisins to pay the costs

of administering the reserve pool and to promote the

sale of raisins domestically and abroad, with surplus

proceeds distributed to producers on a pro rata basis.

7 U.S.C. 608¢c(6)(E); 7 C.F.R. 989.53(a), 989.66(h). A

producer’s equitable share of the proceeds from the

reserve-tonnage raisins may be assigned to third

7

parties in exchange for compensation. See Assign-

ment Form.

Due to the considerable fluctuations in raisin sup-

ply, the reserve pool may vary significantly from year

to year. In many years—for example in the 1998-

1999, 2004-2005, 2010-2011, 2011-2012, 2012-2013,

2013-2014, and 2014-2015 crop years—there was

or will be no reserve raisin pool at all for natural seed-

less raisins, meaning that all such raisins are free

tonnage that may be sold by the handlers with

no restrictions. See Raisin Statistics 1-2, 29;

RAC, Minutes of the Raisin Administrative Commit-

tee 4 (Aug. 14, 2014), http://www.raisins.org/index.

php/reports/rac-minutes/441-august-14-2014. In the

2002-2003 and 2003-2004 crop years at issue in this

case, the Secretary, while declining to impose any

reserve-pool requirements for certain types of raisins,

required reserves of 47% and 30% respectively for

natural seedless raisins. Raisin Statistics 29; see Pet.

App. llla. In the 2002-2003 crop year, producers

received $272.73 per ton as their equitable share of

the reserved natural seedless raisins, resulting in a

total of $47.9 million in net distributions to all produc-

ers combined. See RAC, Statement of Disposition

and Grower Equity 2002-03 Natural Seedless Reserve

Pool.” No payments were made for the 2003-2004 crop

year because no surplus from the sale of reserve rai-

sins remained after the RAC met its expenses and

funded export-promotion activities. See RAC, Memo

to All 2003-2004 Natural (sun-dried) Seedless Grow-

"In a previous brief in this Court, the government incorrectly

stated that producers received only $27.45 per ton. Gov’t Br. 7,

133 S. Ct. 2053 (No. 12-123).

8

ers regarding 2003-04 Natural (sun-dried) Seedless

Reserve Pool 1 (June 23, 2008).

A handler who violates any provision of the market-

ing order or its implementing regulations is subject to

a civil penalty of up to $1100 per day of violation. 7

U.S.C. 608c(14)(B); 7 C.F.R. 3.91(b)(1)(vii); see 12-123

J.A. 106-107 & n.2. In addition, a handler that does

not comply with the reserve-pool requirement “shall

compensate the [RAC] for the amount of the loss

resulting from his failure to so deliver” reserve raisins

when requested by the RAC. 7 C.F.R. 989.166(c).

3. Petitioners own and operate vineyards in Cali-

fornia where, since 1969, they have grown grapes and

produced raisins. Pet. App. 33a. For six years, peti-

tioner Marvin D. Horne served as a member or alter-

nate member of the RAC. /d. at 34a. As raisin grow-

ers, petitioner Horne and his family do business under

the name “Raisin Valley Farms.” Pet. 7-8; Pet. App.

33a.

After operating as raisin producers for more than

30 years, petitioners devised a plan to purchase

equipment to clean, stem, sort, and package raisins,

and to operate their own packing and handling opera-

tions under the name “Lassen Vineyards.” Pet. App.

36a-37a. Petitioners asserted the position that if they

packed and marketed their own raisins, they would be

exempt from any raisin reserve-pool requirements.

Pet. 7-8; Pet. App. 7a, 34a.

Under petitioners’ new “Lassen Vineyards” opera-

tions, they packed raisins that they owned and pro-

duced in their Raisin Valley Farms operation, and also

packed, for a fee, raisins produced and owned by more

than 60 other farmers. Pet. 8; Pet. App. 7a, 36a, 38a,

65a, 200a. Petitioners’ facilities processed more than

9

three million pounds of raisins during the 2002-2003

and 2003-2004 crop years. Pet. App. 145a, 200a. Peti-

tioners owned only 27.4% of the raisins they processed

in 2002-2003, and owned no more than 12.3% of the

raisins they processed in 2003-2004. See Gov’t Br. 9

nn.7 & 8, 133 S. Ct. 2053 (No. 12-123).

The Department of Agriculture repeatedly in-

formed petitioners that they would still be subject to

the reserve-pool requirement under their new ar-

rangement. Pet. App. 35a-36a. Among other things,

the Department notified petitioners that “[mJore than

half of the recognized handlers on the RAC Raisin

Packer list are also producers of raisins,” who have

“their own production brought to their plant” but

nonetheless comply with the reserve-pool require-

ment. C.A. Supp. E.R. 80. Petitioners “expressly

disregarded” the Department’s advice and proceeded

to pack raisins without “hold{ing] any raisins in re-

serve in respect to any of the raisins * * * re-

ceived from and packed for growers during the 2002-

2003 and 2003-2004 crop years.” Pet. App. 36a. Peti-

tioners thus apparently sold their raisins at a price

supported by the reserve-pool requirements that their

competitors observed but they themselves did not. /d.

at 33a, 5la.

4. In 2004, the Administrator of the Agricultural

Marketing Service (an agency within the Department

of Agriculture) initiated a proceeding against petition-

ers, alleging that they had violated various provisions

of the raisin marketing order and implementing regu-

lations during the 2002-2003 and 2003-2004 crop years.

Pet. App. 133a-134a, 200a. An administrative law

judge (ALJ) held a three-day hearing, id. at 134a,

during which petitioners admitted that they did not

10

hold raisins in reserve, id. at 36a, 133a, and also ad-

mitted that they failed to pay required assessments,

failed to have incoming inspections performed, failed

to report their acquisitions of raisins, and failed accu-

rately to file certain other forms as well, id. at 36a-

40a, 132a-133a.

The ALJ rejected petitioners’ argument that they

were not handlers subject to the raisin marketing

order’s requirements. Pet. App. 46a-53a. The ALJ

found that petitioners committed 673 violations of the

raisin marketing order, including 592 violations (one

per day) for failure to reserve required raisins for 294

days during the 2002-2003 crop year and failure to

reserve required raisins for 298 days during the 2003-

2004 crop year. /d. at 43a-44a, 53a, 103a. The ALJ

also found that petitioners “acted willfully and inten-

tionally when they decided to * * * not hold rai-

sins in reserve” and that petitioners’ “violations were

deliberate and were designed to obtain an unfair com-

petitive advantage over other California raisin han-

dlers who were in compliance with the Raisin Order.”

Id. at 33a, 5la.

A Department of Agriculture judicial officer af-

firmed the ALJ’s decision in relevant part. Pet. App.

56a-98a; see also id. at 10la-124a. Petitioners were

ordered to pay $8,783.39 in unpaid assessments,

$202,600 in civil penalties, and $483,843.53 for the

raisins they had failed to reserve in the 2002-2003 and

2003-2004 crop years. /d. at 8a n.6.

5. Petitioners sought judicial review of the agen-

cy’s decision in district court, contending, inter alia,

that the reserve-pool requirement results in a per se

physical taking without just compensation, in violation

of the Just Compensation Clause of the Fifth Amend-

11

ment. Pet. App. 138a, 176a-184a. The district court

concluded that petitioners met the regulatory defini-

tion of raisin handlers and were subject to the re-

quirements of the raisin marketing order. /d. at 140a-

163a. The court also concluded that “the reserve

tonnage [requirement] does not constitute a physical

taking.” /d. at 184a (emphasis omitted); see id. at

176a-187a.

The court of appeals affirmed. Pet. App. 19la-

219a. The court’s amended opinion concluded that it

lacked jurisdiction to address petitioners’ takings

claim, because petitioners were required to seek just

compensation for any taking by bringing suit in the

Court of Federal Claims under the Tucker Act, 28

U.S.C. 1491(a)(1). Pet. App. 233a-236a.

This Court reversed that jurisdictional holding.

133 S. Ct. 2053. The Court explained that “[pletition-

ers’ taking claim * * * was properly before the

court [of appeals] because the AMAA * * * with-

draws Tucker Act jurisdiction over takings claims

brought by raisin handlers.” /d. at 2056. The Court,

however, took “no position on the merits of petition-

ers’ takings claim,” id. at 2061 n.5, and instead simply

remanded the case to the court of appeals, id. at 2064.

The Court left open, inter alia, the question whether a

raisin producer could seek compensation for reserve-

pool raisins under the Tucker Act and, if so, whether

the availability of such a Tucker Act suit would pro-

vide an avenue for just compensation that would de-

feat petitioners’ takings claim on the merits. /d. at

2062 n.7.

6. On remand, following supplemental briefing and

oral argument, the court of appeals rejected petition-

ers’ takings claim on the merits. Pet. App. 1la-29a.

12

The court initially concluded that petitioners had

standing to challenge the reserve-pool requirement,

even as to raisins that they themselves did not pro-

duce, because they had been injured by the monetary

penalties imposed on them as handlers for failing to

set aside raisins for the reserve pool. /d. at 10a-12a.

And the court reasoned that the constitutionality of

those penalties turned on whether the reserve-pool

requirement effects a taking of raisins (regardless of

whether the raisins are owned by petitioners) without

just compensation (regardless of whether the just

compensation would be owed to petitioners). Jd. at

12a-15a. But the court, noting that petitioners had

“intentionally declined” to argue that the reserve-pool

requirement constitutes a regulatory taking under

this Court’s decision in Penn Central Transportation

Co. v. City of New York, 438 U.S. 104 (1978), rejected

petitioners’ theory that the reserve-pool requirement

constitutes a “categorical” or “per se” taking. Pet.

App. 16a.

The court of appeals recognized that this Court’s

decision in Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982)—which involved a law re-

quiring a landlord to “permit a cable television com-

pany to install its cable facilities upon his property,”

id. at 421—“holds that permanent physical invasions

of real property work a per se taking.” Pet. App. 17a.

For “[t}wo independent reasons,” however, it found

Loretto not to be controlling in this case. Jbid. First,

the court found it significant that the marketing order

operates against personal property, rather than real

property. /d. at 18a. The court noted that “this dis-

tinction does not mean the Takings Clause is inappli-

cable” and that the “precise contours” of the “differ-

13

ing levels of protection” for different types of proper-

ty “are not entirely sharp.” /d. at 18a-19a. But, the

court reasoned, this Court’s decision in Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (2002), “sug-

gests the government’s authority to regulate [personal

property] without working a taking is at its apex

where, as here, the relevant governmental program

operates against persona! property and is motivated

by economic, or ‘commercial,’ concerns.” Pet. App.

19a. The court thus “s[aw] no reason to extend Loret-

to to controversies involving personal property.” /d.

at 20a.

Second, and “lejqually importantly,” the court

found this case “[uJnlike Loretto” because petitioners

“did not lose all economically valuable use” of their

property. Pet. App. 20a. The court reasoned that

Loretto “applies only when each strand from the bun-

dle of property rights” is ‘chopped through

taking a slice of every strand,’” and that raisin pro-

ducers’ “rights with respect to the reserved raisins

are not extinguished because [they] retain the right to

the proceeds from their sale.” /d. at 20a-21a (quoting

Loretto, 458 U.S. at 435 (internal quotation marks

omitted), and citing 7 U.S.C. 608c(6)(E)); 7 C.F.R.

989.66(h)). The court additionally noted that petition-

ers enjoy the market-stabilization benefits of the

reserve pool. Jd. at 21a-22a.

Against this background, the court of appeals con-

cluded that the “appropriate framework to decide this

case given the significant but not total loss of [peti-

tioners’] possessory and dispositional control over

their reserved raisins” was by analogy to this Court’s

approach to evaluating the constitutionality of condi-

tions on land-use permits. Pet. App. 23a n.18. The

14

court observed that the Secretary “did not authorize a

forced seizure of [petitioners’] crops, but rather im-

posed a condition on [their] wse of their crops by regu-

lating their sale.” Jd. at 25a. The court thus reasoned

that the reserve-pool reyuiiement was, “[a]t bottom,”

a “use restriction applying to [petitioners] insofar as

they voluntarily choose to send their raisins into the

stream of interstate commerce,” and thus was analo-

gous to a condition on a land-use permit. /bid.; see

id. at 25a-26a (noting that the reserve-pool require-

ment, like land-use-permit conditions, involves “a

conditional exaction,” the grant of “a government

benefit in exchange,” and “choice” about whether to

use the property in a manner that could trigger the

condition). The court stressed that petitioners “can

avoid the reserve requirement of the Marketing Order

by * * * planting different crops, including other

types of raisins not subject to this Marketing Order or

selling their grapes without drying them into raisins.”

Id. at 26a.

The court of appeals accordingly applied a test

drawn from this Court’s decisions in Nollan v. Cali-

fornia Coastal Commission, 483 U.S. 825 (1987), and

Dolan v. City of Tigard, 512 U.S. 374 (1994), for de-

termining whether the reserve-pool requirement,

viewed as an exaction, was consistent with the Just

Compensation Clause. Under that analysis, the court

found the reserve-pool requirement constitutional

because it had a “sufficient nexus” to the govern-

ment’s goal of stabilizing the raisin market and was

“roughly proportional” to that goal, in that it required

handers to reserve only as many raisins as necessary

each year to achieve market stabilization for the bene-

15

fit of all producers. Pet. App. 26a-28a; see id. at 23a-

25a.

ARGUMENT

The raisin marketing order petitioners challenge

has been in effect and stabilized the raisin market for

65 years. Petitioners participated in the program for

more than 30 years before they chose to intentionally

violate the order by processing raisins for themselves

and other producers for sale outside the order’s pro-

cedures. The court of appeals correctly concluded

that this order, from which petitioners and other pro-

ducers have benefited for many years, does not violate

the Just Compensation Clause. That conclusion does

not conflict with any decision of this Court or any

other court of appeals. This case, moreover, would not

be a suitable vehicle for reviewing the more general

and abstract issues raised by petitioners. Further

review is not warranted.

1. a. The Fifth Amendment’s Just Compensation

Clause provides that “private property [shall not] be

taken for public use, without just compensation.” U.S.

Const. Amend. V. This Court has explained that the

“paradigmatic taking requiring just compensation is a

direct govagnment appropriation or physical invasion

of private property.” Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528, 537 (2005). The Court has also “recog-

nized that government regulation of private property

may, in some instances be so onerous that its effect is

tantamount to a direct appropriation or ouster—and

that such ‘regulatory takings’ may be compensable

under the Fifth Amendment.” /bid.

The Court’s precedents “stake out two categories

of regulatory action that generally will be deemed per

se takings for Fifth Amendment purposes.” Lingle,

16

544 U.S. at 538; see Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1015-1016 (1992) (same). The

first is when the “government requires an owner to

suffer a permanent physical invasion of her proper-

ty—however minor”; in such a case, the government

“must provide just compensation.” Lingle, 544 U.S. at

538; see Lucas, 505 U.S. at 1015. The second is when

a regulation “completely deprive[s] an owner of ‘all

economically beneficial use’ of her property.” Lingle,

544 U.S. at 538 (quoting Lucas, 505 U.S. at 1019)

(brackets omitted). “Outside these two relatively

narrow categories (and the special context of land-use

exactions * * * ), regulatory takings challenges

are governed by the standards set forth in” Penn

Central Transportation Co. v. City of New York, 438

U.S. 104 (1978). Lingle, 544 U.S. at 538. The Penn

Central standards require a “case-specific inquiry into

the public interest advanced in support of the re-

straint,” Lucas, 505 U.S. at 1015, and examine, inter

alia, the “character of the governmental action,” the

“economic impact of the regulation on the claimant,”

and “the extent to which the regulation has interfered

with distinct investment-backed expectations,” Lingle,

544 U.S. at 538-539 (quoting Penn Central, 438 U.S. at

124).

b. Petitioners have disavowed any reliance on the

case-specific Penn Central inquiry. They apparently

recognize that the raisin marketing order’s fair and

proven measures for stabilizing the raisin market

plainly do not result in a taking under that test. The

“character of the governmental action” is one of rea-

sonable regulation of a commercial market in an agri-

cultural commodity; the “economic impact of the regu-

lation” is to stabilize the market and ensure a suffi-

17

cient price level for producers, including petitioners;

and petitioners, after decades of participation in the

raisin market under the order, had no “distinct

investment-backed expectations” in being able to

market their raisins without complying with the or-

der’s reasonable requirements. Lingle, 544 U.S. at

538-539 (quoting Penn Central, 438 U.S. at 124).

Petitioners nevertheless contend that the raisin

marketing order effects a categorical, per se taking.

Pet. App. 16a. The order’s reserve-pool requirement,

however, is not one of the types of per se takings rec-

ognized by this Court. As a threshold matter, the

requirement that handlers reserve a certain amount of

raisins is not “a direct government appropriation or

physical invasion of private property.” Lingle, 544

U.S. at 537. Petitioners’ characterization of the re-

serve pool as the “government’s acquisition of title to

personal property,” Pet. 22, is inaccurate. Although

the Court of Federal Claims has described the reserve

pool that way in dicta (see Evans v. United States, 74

Fed. Cl. 554, 558 (2006), aff’d, 250 Fed. Appx. 321

(Fed. Cir. 2007) (per curiam) (unpublished), cert.

denied, 552 U.S. 1187 (2008)), see Pet. 5, nothing in

the regulations cited by that court, or by petitioners

(see ibid.), supports that description. The reserve-

pool raisins are held “for the account” of the RAC, 7

C.F.R. 989.66(a), but neither the AMAA nor the mar-

keting order provides that the RAC “takes title” (Pet.

22) to the reserve raisins. Rather, as previously dis-

cussed, pp. 5-7, supra, the marketing order regulates,

in certain crop years, the timing and conditions under

which the reserve raisins can be sold, with the pro-

ducers retaining the rights to the net proceeds of any

sale.

18

The reserve-pool requirement also does not fit

within the “relatively narrow categories,” Lingle, 544

U.S. at 538, of per se regulatory takings. First, the

requirement is not a “permanent physical invasion” of

anyone’s raisins. /bid. This Court has identified the

situation presented in Loretto v. Teleprompter Man-

hattan CATV Corp., 458 U.S. 419 (1982), which in-

volved a state-law requirement to allow cable equip-

ment to be installed on the roof and side of a building,

as the archetypical example of this sort of taking.

See Lingle, 544 U.S. at 538; Lucas, 505 U.S. at 1015.

This case presents no personal-property analogue to

the taking at issue in Loretto. The Court in Loretto

emphasized that the regulation there “d[id] not simply

take a single ‘strand’ from the ‘bundle’ of property

rights,” but instead “chop[ped] through the bundle,

taking a slice of every strand.” 458 U.S. at 435.

Among other things, it deprived the owner of “the

right to use and obtain a profit from property” and

“emptlied]” the right to transfer or sell the affected

property “of any value.” /d. at 436. The same is not

true here. Under both the AMAA and the implement-

ing regulations for the raisin marketing order, the

producer retains an equitable right in the proceeds of

the reserve raisins. 7 U.S.C. 608c(6)(E); see 7 C.F.R.

989.66(h); see also pp. 5-7, supra. Those equitable

rights have monetary value and can be transferred for

consideration. See pp. 5-7, supra. Moreover, the net

effect of the reserve-pool requirement is to raise the

value of a producer’s raisins as a whole, by stabilizing

the market price of raisins and increasing revenues

from the sale of the free-tonnage raisins. See pp. 3-4,

supra.

19

Second, because the producer retains valuable

rights in the reserve-pool raisins, the raisin marketing

order does not “completely deprive an owner of ‘all

economically beneficial use’ of her property.” Lingle,

544 U.S. at 538 (quoting Lucas, 505 U.S. at 1019)

(brackets omitted); see Pet. App. 22a n.17 (concluding

that the reserve-pool requirement is not a categorical

taking under Lucas). The reserve-pool requirement

instead functions as a restriction on the sale of raisins.

Under the marketing order, reserve-pool raisins are

“held * * * for the account of the” RAC, 7 C.F.R.

989.66(a), which determines how those raisins will be

disposed of, bearing in mind that they “shall be sold to

handlers at prices and in a manner intended to maxi-

mum producer returns and achieve maximum disposi-

tion of such raisins by the time reserve tonnage rai-

sins from the subsequent crop year are available,”

7 C.F.R. 989.67(d)(1); see Lion Raisins, Inc. v. Unit-

ed States, 416 F.3d 1356, 1359 (Fed. Cir. 2005); see

7 C.F.R. 989.65-989.67. Any proceeds from the dis-

position of the reserve raisins—minus administrative

costs, which directly fund the RAC activities from

which all producers benefit through higher raisin

prices—go to the producers. See 7 U.S.C. 608c(6)(E);

7 C.F.R. 989.53(a), 989.66(h).

Although the mechanics of the raisins’ disposal are

carried out by the RAC, rather than by the producer,

the raisin marketing order is effectively indistinguish-

able from a scheme in which the producer itself dis-

poses of the raisins in a manner approved by the RAC,

such as controlling when certain raisins are sold or the

markets in which they may be sold. Such a scheme

does not violate the Just Compensation Clause. In-

deed, petitioners do not meaningfully dispute that if

20

the marketing order “limited the amount of a crop

that a farmer can sell, that would be a use restriction”

and would not amount to a per se taking. Pet. 33; see

Andrus v. Allard, 444 U.S. 51, 66 (1979) (regulation

that barred sale of certain items and thus “pre-

vent[ed] the most profitable use of [plaintiffs’] proper-

ty” did not effect a taking). Such a program does not

become less constitutional when certain avenues for

sale are left open and the producers have rights in the

proceeds of any sale.

2. The court of appeals’ rejection of petitioners’

per se takings argument is consistent with the deci-

sions of this Court and other courts. In United States

v. Rock Royal Co-Op Inc., 307 U.S. 533 (1939), this

Court reversed a lower-court decision that had found

an AMAA marketing order for milk (which employed

an alternative to the reserve-pool requirement) to

“take[] property without compensation.” Jd. at 541;

see id. at 568-581. Since then, lower courts have con-

sistently rejected Just Compensation Clause chal-

lenges to AMAA marketing orders, including chal-

lenges to the raisin marketing order at issue here.

See Evans, 74 Fed. Cl. at 562-565; see also Cal-

Almond, Inc. v. United States, 30 Fed. Cl. 244, 246-

247 (Fed. Cl. 1994) (rejecting challenge to almond

marketing order), aff’d, 73 F.3d 381 (Fed. Cir. 1995)

(Tbl.), cert. denied, 519 U.S. 963 (1996); Carruth v.

United States, 627 F.2d 1068, 1081 (Ct. Cl. 1980) (re-

jecting challenge to peanut marketing order); Wallace

v. Hudson-Duncan & Co., 98 F.2d 985, 989 (9th Cir.

1938) (rejecting challenge to walnut marketing order);

Prune Bargaining Ass’n v. Butz, 444 F. Supp. 785,

793 (N.D. Cal. 1975) (rejecting challenge to prune

21

marketing order), aff’d, 571 F.2d 1132 (9th Cir.) (per

curiam), cert. denied, 439 U.S. 833 (1978).

3. Petitioners do not claim any conflict on the con-

stitutionality of the raisin marketing order, or any

other marketing order. They instead urge this Court

to grant review to address a set of more abstract is-

sues involving the Just Compensation Clause, assert-

ing that each is the subject of a circuit conflict. None

of those issues warrants this Court’s review in this

case.

a. First, petitioners seek review of what they as-

sert was the court of appeals’ “holding that govern-

ment appropriation of personal property is never

categorically subject to” the Just Compensation

Clause. Pet. 16; see id. at 15-26. But even assuming

arguendo that the court below in fact reached such a

conclusion, it would have been only one of “[t}wo inde-

pendent reasons” for rejecting petitioners’ reliance on

Loretto. Pet. App. 17a-18a. The court separately

reasoned that even if Loretto applied, petitioners still

would not prevail because “[uJnlike” in Loretto, peti-

tioners “did not lose all economically valuable use” of

their property. /d. at 20a.

In any event, it is far from clear that the decision

below announced the broad principle that petitioners

ascribe to it. The court of appeals concluded that

Loretto did not in itself “govern controversies involv-

ing personal property”; observed that the constitu-

tional distinctions between regulations of different

types of property “are not entirely sharp”; and inter-

preted Lucas v. South Carolina Coastal Council,

supra, to “suggest{] the government’s authority to

regulate [personal property] without working a taking

is at its apex where, as here, the relevant governmen-

22

tal program operates against personal property and is

motivated by economic, or ‘commercial,’ concerns.”

Pet. App. 19a-20a. The court did not preclude the

conclusion that other circumstances, involving direct

governmental acquisition of personal property, could

be viewed as per se takings.

Decisions cited by petitioners (Pet. 18-19) address

laws substantially different in nature from the “eco-

nomic or ‘commercial’” regulation reflected in the

raisin marketing order, and thus do not suggest that

other courts would have decided this case differently.

See Cerajeski v. Zoeller, 735 F.3d 577, 580 (7th Cir.

2013) (application of abandoned-property statute

constituted taking of interest from bank account);

Anderson v. Spear, 356 F.3d 651, 668-670 (6th Cir.)

(application of election-law statute requiring relin-

quishment of campaign funds after an election consti-

tuted per se taking), cert. denied, 543 U.S. 956 (2004);

Nixon v. United States, 978 F.2d 1269, 1284-1287

(D.C. Cir. 1992) (application of records statute consti-

tuted per se taking of ex-President’s papers); Porter

v. United States, 473 F.2d 1329, 1336 (5th Cir. 1973)

(application of ad hoc statute about Lee Harvey Os-

wald’s effects constituted taking); see also Rose Acre

Farms, Inc. v. United States, 373 F.3d 1177, 1197-

1198 (Fed. Cir. 2004) (concluding that destruction of

diseased hens was not a per se taking), cert. denied,

545 U.S. 1104 (2005); United States v. Corbin, 423

F.2d 821, 826 (10th Cir. 1970) (including value of fish

in computation of compensation for condemnation of

land containing fish farm). The absence of a square

circuit conflict, in combination with the uncertainty

about whether or how the decision below might be

interpreted in future cases, counsels strongly against

23

granting certiorari on an issue that even the court of

appeals did not view as crucial to the result here.

b. Second, petitioners contend that the decision be-

low held that “appropriation of property—even of real

property, evidently—is a per se taking only if it de-

prives the owner of ‘all rights associated with the

property.’” Pet. 26 (citation omitted); see Pet. 26-29.

Petitioners’ contention, however, rests on a misunder-

standing of both the raisin marketing order and the

decision below. Petitioners err in contending (Pet. 27)

that this case involves the government’s “taking of

actual ownership and possession” of producers’ rai-

sins. As explained above, see p. 17, supra, nothing in

the marketing order transfers title in the reserve

raisins from petitioners to the government, and pos-

session of the reserve raisins remains with the han-

dlers to whom the producers voluntarily send the

raisins, see 7 C.F.R. 989.66(a). The court of appeals

recognized as much, distinguishing the marketing

order’s effect on “possessory and dispositional con-

trol” from a “transfer of title.” Pet. App. 25a-26a.

Decisions cited by petitioners (Pet. 27-28), in which

the government (as in Loretto) physically takes com-

plete dominion over a portion of a plaintiff’s property,

are inapposite and do not show a circuit conflict in the

circumstances of this case. See Casitas Mun. Water

Dist. v. United States, 543 F.3d 1276, 1291-1292 (Fed.

Cir. 2008) (government “actively caused the physical

diversion of water,” thereby “reducing [plaintiff’s]

water supply”); Gulf Power Co. v. United States, 187

F.3d 1324, 1328 (11th Cir. 1999) (government allowed

by statute “to permanently occupy physical space on

[a cable company’s] poles, ducts, conduits, and rights-

of-way”).

24

c. Finally, petitioners seek review (Pet. 29-36) of

the court of appeals’ application to the circumstances

of this case of a nexus-and-proportionality test drawn

from Nollan v. California Coastal Commission, 483

U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S.

374 (1994). In petitioners’ view (Pet. 29), Nollan and

Dolan are inapplicable to a situation involving “the

government’s acquisition of title to the reserve rai-

sins.” See, e.g., Pet. 33. Again, however, petitioners’

argument rests on the erroneous premise that the

raisin marketing order transfers all interests in re-

serve raisins. Compare, e.g., ibid. (characterizing

raisin marketing order as a transfer of title and a

“physical transfer of raisins”), with p. 17, supra (ex-

plaining that no physical or title transfer occurs).

Petitioners’ assertion of a conflict between the ap-

proach taken in the decision below and the approach

taken in cases involving actual physical invasions of

private property is accordingly misplaced. See Pet.

31-33 (citing Casitas Mun.Water Dist., supra; Gulf

Power Co., supra; and GTE Nw., Inc. v. Public Util.

Comm'n of Or., 900 P.2d 495, 503 (Or. 1995) (require-

ment to allow equipment to be installed on private

property), cert. denied, 517 U.S. 1155 (1996)). Indeed,

to the extent that the court of appeals did not simply

deny relief based on the conclusion that no per se

taking occurred under Loretto or Lucas (Pet. App.

20a-22a & n.17), but instead accepted that petitioners

could prevail if the reserve-pool requirement failed

the Nollan/Dolan nexus-and-rough proportionality

test, it actually “stretched” existing doctrine (Pet. 30

n.2) in petitioners’ favor. And petitioners do not con-

tend that there was a taking here under a WNol-

lan/Dolan test. Nor do they contest the court of ap-

25

peals’ conclusion, in applying that test, that there was

a close nexus and rough proportionality between the

reserve-raisin requirement and the price-stabilization

purposes of the marketing order, which directly bene-

fited petitioners and other producers.

4. To the extent that the abstract questions pre-

sented in the petition might warrant this Court’s re-

view in some case, this particular case would be a poor

vehicle for addressing them.

As the discussion above reflects, petitioners’ argu-

ments are based largely on a misunderstanding of the

raisin marketing order, and any context-specific ar-

guments petitioners might raise about the proper

understanding of the raisin marketing order would

have limited importance. We are aware of no other

pending challenges to the raisin marketing order.

Very few other products regulated under the AMAA

are even potentially subject to reserve-pool require-

ments; all of those have separate regulatory schemes;

and we are informed by the Department of Agricul-

ture that for all but one of them (tart cherries) the

reserve-pool programs have not been in effect for a

number of years. See 7 C.F.R. Pt. 930 (tart cherries);

7 C.F.R. Pt. 981 (almonds); 7 C.F.R. Pt. 984 (walnuts);

7 C.F.R. Pt. 987 (dates); 7 C.F.R. Pt. 993 (dried

prunes).

In any event, if more than 50% of raisin producers

(as measured by volume of raisins) believe that the

raisin marketing order is unnecessary, they can vote

to repeal it. 7 U.S.C. 608c(9) and (16)(B); 7 C.F.R.

989.91(c). The absence of any such action during the

65 years that the raisin marketing order has been in

effect indicates that raisin farmers generally perceive

themselves to be advantaged by the order’s stabiliza-

26

tion of raisin prices. Indeed, in 1989, producers re-

jected the Secretary’s proposal for automatic periodic

referenda on the continuance of the raisin marketing

order, which would have provided more frequent op-

portunities for producers to weigh in on that subject.

See 54 Fed. Reg. 12,206 (Mar. 24, 1989); 54 Fed. Reg.

34,135 (Aug. 18, 1989). It is also telling that only 18 of

the roughly 3000 raisin growers have joined a brief in

support of the petition for a writ of certiorari. See

DKT Liberty Project & 18 Independent Raisin Grow-

ers Amicus Br. 1.

In addition, even assuming the raisin marketing

order has the effect petitioners attribute to it, alter-

nate grounds for affirmance could impede the Court

from reaching the questions presented. First, even if

producers’ raisins are deemed to be “taken for public

use” by the raisin marketing order, U.S. Const.

Amend. V, that would not violate the Just Compensa-

tion Clause unless it resulted in “pecuniary loss” to

the producers. Brown v. Legal Found. of Wash., 538

U.S. 216, 240 (2003). Petitioners have not shown, and

cannot show, that the raisin marketing order—the

effect of which is to increase the market price of rai-

sins, thereby benefiting raisin producers—causes such

loss.

Second, even assuming the raisin marketing order

effected a taking that resulted in a pecuniary loss, it

still would not violate the Just Compensation Clause,

because Congress has provided a mechanism for pro-

ducers to obtain “just compensation,” U.S. Const.

Amend. V. The Tucker Act generally permits a plain-

tiff—including an aggrieved raisin producer—who

believes that the government has taken his property

without just compensation to bring an action against

27

the United States for compensation in the Court of

Federal Claims. 28 U.S.C. 1491(a)(1); see Ruckel-

shaus v. Monsanto Co., 467 U.S. 986, 1016-1017

(1984). The Court has previously recognized that

“(t]he availability of a suit for compensation against

the sovereign will defeat a contention that the action

is unconstitutional as a violation of the Fifth Amend-

ment.” Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 697 n.18 (1949). And the Court’s

previous decision in this case recognized that petition-

ers’ claims might fail for precisely that reason. 133 S.

Ct. at 2062 n.7.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

JOYCE R. BRANDA

Acting Assistant Attorney

General

MICHAEL S. RAAB

JOSHUA WALDMAN

Attorneys

DECEMBER 2014