Here's the Reply Brief in Horne v. United States Dep't of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012), the case asking whether in an enforcement action by the USDA, California raisin farmers can raise the defense that the requirement they turn over to the government a certain percentage of their yearly crop would be a taking.
The brief responds to the USDA's brief, and argues that the issue before the Court is not "jurisdictional," which means it could be raised any time, much like the USDA did here, even after the Ninth Circuit issued its opinion. Rather, this is a choice of remedies ripeness question subject to "forfeiture." Barista's note: we're happy to see what is commonly referred to as "waiver" (a knowing and intentional relinquishment of a known right) properly labeled as "forefeiture" (relinquishment of a right by operation of law), because in civil litigation when you don't raise issues you could have, you lose them even if you don't intend to. The brief argues that every case from Williamson County to Stop the Beach Renourishment has treated "takings clause ripeness as non-jurisdictional." Br. at 5.
The Reply focuses on Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) -- a case sure to get Justice Kennedy's attention because he provided the fifth vote for the property owner, but argued the case was one of Due Process, not Takings -- arguing that a takings claim should be able to be raised as a defense when the regulatory scheme being challenged does not provide for compensation:
But the government nowhere cites any case for the novel proposition that Congress would want to establish such a "one-bite" regime. It makes no sense to have the question of which court should hear a takings claim depend on a factor as difficult to ascertain as whether the Executive Branch would abandon its enforcement of the law in response to a just compensation award. That is no doubt why cases addressing takings claims on the merits have given no weight to the fact that the Executive Branch had the authority to stop the taking. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 168-169 (1979) (government initiated enforcement action for public access to property); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (property seizure based on unilateral executive order). In these cases, federal courts simply reached the merits of the takings claim upon concluding that the underlying regime made no provision for just compensation, rather than requiring a party to proceed to the claims court to determine whether compensation was available there.
Br. at 8.
Finally, the reply argues that a defendant in an enforcement action may raise a takings defense because the USDA's argument that the availability of the Tucker Act avoids the constitutional violation "confuses constitutional rights with remedies." Br. at 13.
More, after today's oral arguments.