Here's what we think is the final top-side amicus brief in Horne v. United States Dep't of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012), supporting the petitioner/property owner. Filed by the Chamber of Commerce of the United States, the brief argues that where "the government requires a direct transfer of funds, and where a party seeks equitable relief in resisting application of that statute in an enforcement action, that party need not seek 'compensation' in a duplicative second lawsuit under the Tucker Act." Br. at 5.
In Horne, the question is whether farmers who assert that an agricultural regulations known as "marketing orders," by which they are forced to surrender large percentages of their raisin crops to the USDA without payment or else face massive fines, can raise the argument that to do so would be a taking when defending against the fine, or if their only option is to pay the fine and file a lawsuit in the Court of Federal Claims to recover just compensation. The Ninth Circuit held the District Court had no jurisdiction to hear the takings defense, and the only option was new litigation instituted by the Hornes in the CFC to get the fine back. The Chamber's brief argues:
the Ninth Circuit’s rule should be rejected because it would substantially burden Fifth Amendment rights—not only in terms of the cost and delay of bringing a second lawsuit, but also by undermining the likelihood of success on a takings defense by requiring piecemeal and repetitive litigation, which is disfavored throughout American law.
Br. at 8.
The petitioners' brief is here. The amicus brief filed by Texas is here. The brief filed by the Cato Institute, the NFIB, the Center for Constitutional Jurisprudence, and the Reason Foundation is here. The amici brief by five constitutional law scholars is here.
We'll post the USDA's brief and any amici in support when the come in. The case is scheduled for argument on March 20, 2013.