Here's the SG's merits brief in Horne v. United States Dep't of Agriculture, No. 12-123 (cert. granted Nov. 20, 2012),
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 SG's brief argues the Hornes do not have standing to assert a takings defense:
The government agrees that this dedicated judicial-review provision would supplant Tucker Act jurisdiction for a takings claim asserted by a handler in its capacity as a handler. But this is not such a case.Petitioners allege that the reserve requirement unlawfully takes raisins they produced without just compensation. They have standing to raise that claim only in their capacity as producers who own those raisins allegedly taken. Yet the payment order they challenge here was imposed on petitioners only as handlers. To be sure, petitioners acted as both producers and handlers, but they cannot manufacture standing or a right of action Under 7 U.S.C. 608c(14) for themselves—and give themselves avenues for judicial review not available to other producers—by engaging in a producer-handler "shell game" (J.A.45).
Br. at 17-18. The brief also speaks to the "Just Compensation" Clause and not the "Takings" Clause, to imply that the Hornes are seeking compensation when they are not (they are defending against the imposition of a fine by asserting to impose it would be a taking).
We'll post any amici briefs supporting the USDA as they are filed.
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 brief by the U.S. Chamber of Commerce is here. The amici brief by five constitutional law scholars is here.
The case is scheduled for argument on March 20, 2013.
Brief for the Respondent, Horne v. U.S. Dep't of Agriculture, No. 12-123 (Feb. 12, 2013)