Here's the petitioners' merits brief in Horne v. United States Dep't of Agriculture, No. 12-122 (cert. granted. Nov. 20, 2012).
That's the case in which the Court is reviewing Horne v. United States Dep't of Agriculture, 673 F.3d 1071 (9th Cir. 2011), in which the Ninth Circuit concluded a takings claim raised as a defense by raisin farmers who qualified as "raisin handlers" under federal regulations and thus were required to "reserve" (donate) 47% of their crop to the government, was not ripe because the farmers could seek just compensation in a Tucker Act claim in the Court of Federal Claims. For the 2003 and 2004 crop years, the USDA government brought an enforcement action against the farmers, seeking to recover the monetary value of raisins they did not turn over to the government.
The Ninth Circuit dismissed the takings claim for lack of jurisdiction, effectively telling the farmers that they could not object to the imposition of fines, but must pay and then file a claim for just compensation in the CFC to get the money back. That opinion replaced an earlier opinion holding that the reserve requirement was not a taking because the raisin farmers could have avoided the confiscatory regulations by choosing to not enter the raisin market.
The farmers' brief presents two questions:
1. Whether a party may raise the Takings Clause as a defense to enjoin a "direct transfer of funds mandated by the Government." Eastern Enterprises v. Apfel, 524 U.S. 498, 521 (1998) (plurality; quotation marks omitted).2. Whether the federal courts have jurisdiction over petitioners’ takings claim, where petitioners, as "handlers" of raisins under the Raisin Marketing Order, 7 C.F.R. Part 989, are statutorily required to exhaust all claims and defenses in administrative proceedings with exclusive jurisdiction for review in federal district court.
This case raises the question of whether the Fifth Amendment contains a "Takings" Clause, or only a "Just Compensation" Clause. The focus of the analysis in regulatory takings law recently, especially after Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005), has been whether a government action is the functional equivalent of an exercise of eminent domain. In many regulatory takings and inverse cases, the usual remedy being sought -- just like in most eminent domain cases -- is the recovery of just compensation. But that's only part of the equation, and there's no reason that after-the-fact compensation is the exclusive remedy under the Fifth Amendment, nor does it bar a litigant from asserting that an action the government has already done violates the Takings Clause.
The brief argues:[R]ipeness bars a lawsuit only in cases where the party seeks anticipatory relief against government action that has not yet taken place. It does not apply when a party seeks to interpose a constitutional defense to an enforcement action brought by the government at the time and in the forum of the government’s own choosing.Recent cases applying a specialized "ripeness" doctrine to takings claims confuse ripeness with equitable principles regarding the propriety of issuing an injunction. A review of the text, structure, and historical interpretation of the Takings Clause confirms that a party can obtain affirmative injunctive relief under the Clause or raise the Clause as a defense. The historical record shows that, from the earliest cases, a party could raise the Takings Clause as a defense to government enforcement action.
Br. at 14-15.
Old takings hands will recognize the Ninth Circuit's ruling as the latest incarnation of the Tucker Act Shuffle, which is like Williamson County writ small for takings claims against the federal government. Under that theory -- in which district courts only deal with the validity of the regulations and do not consider the takings issues, leaving those exclusively to the CFC -- the property owner's check to the government paying a fine and the government's just compensation check to the property owner for a taking could literally cross in the mail.
The case is scheduled for argument on March 20, 2013. Here's the Court's docket for the case if you want to follow along. There will be more to follow, so stay tuned.
Brief for Petitioners, Horne v. United States Dep't of Agriculture, No. 12-123 (Dec. 9, 2013)
