Check out this new (ish) cert petition which asks whether the “final decision” ripeness rule that currently governs regulatory takings cases is also applicable when the right alleged to have been violated is procedural due process.
The petition sets out how the lower federal courts have dealt with the question:
This case presents an important and recurring question that has divided the courts of appeals: whether procedural due process claims asserted in land-use disputes are subject to the same accrual rule as takings claims. Two circuits—the Second and Third—have held that they are. Five others—the Fifth, Sixth, Seventh, Ninth, and Tenth—have held they are not.
Pet. at 2. This case reverses the usual dynamic in takings cases (where generally, owners assert the claim is ripe because the government has made it clear what uses it will and won’t allow), because the Second Circuit held that the case was ripe a long time ago, before the applicable three-year statute of limitations. The owner here got caught in a “Sisyphean” nightmare where he was “told repeatedly by state court that his claims were not ripe” because the land use process had not been completed (and thus it was too early to say whether these procedures satisfied due process requirements). And then when he got to federal court he was told that “his challenge to those proceedings came too late because respondents had made a de facto decision to revoke the certificate years earlier.” Pet. at 4.
Here’s the Question Presented:
This Court has repeatedly instructed courts to determine when a claim challenging state action under 42 U.S.C. § 1983 accrues by first “identifying ‘the specific constitutional right’ alleged to have been infringed.” McDonough v. Smith, 588 U.S. 109, 115 (2019); see, e.g., Reed v. Goertz, 598 U.S. 230, 236 (2023); Manuel v. City of Joliet, 580 U.S. 357, 370 (2017). The Second Circuit, however, takes a different approach in cases involving disputes over land use. Rather than focus on the “ ‘the specific constitutional right’ ” at issue, the Second Circuit subjects procedural due process claims asserted in the land-use context to the accrual rule for takings claims announced in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and refined in Knick v. Township of Scott, 588 U.S. 180 (2019), and Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021). That one-size-fits-all approach tracks the law of the Third Circuit. But it conflicts with the approach taken by the Fifth, Sixth, Seventh, Ninth, and Tenth Circuits, which apply the takings rule only to claims that seek relief for takings.
The question presented is:
Whether the accrual rule for takings claims under 42 U.S.C. § 1983 applies to procedural due process claims asserted in land-use disputes.
Follow along on the Court’s docket.
Petition for a Writ of Certiorari, Potter v. Vill. of Ocean Beach, No. 25-464 (U.S. Oct. 10, 2025)