If you were thinking of teeing up a case "just so" for Supreme Court review, what does your fevered quill-pen dream checklist look like? Well, here's some of the usual things that are good indicators:
- The Ninth Circuit decided against you. That court may not truly have the distinction of being the most reversed federal circuit, but come on, if you have to lose in a federal circuit court of appeals, don't you want to lose ugly in the Ninth Circuit?
- The panel opinion creates a circuit split. With the court that does federal takings (the Federal Circuit).
- You try for en banc rehearing, but no deal...
- ...but, there's both a concurral...
- ...and a dissental from the denial of en banc review.
- The dissental expressly points out the circuit split, in effect saying: "oooh, looky here cert pool, a safe grant!"
- There were beaucoup amici in the court of appeals.
- The losing party is represented by lawyers who have an enviable track record of getting the Supreme Court's attention (and winning).
You'd be happy if your case had a few of these.
But if they had each of them? That means you know what's coming next: a serious cert petition, that's what.
Well, that's what we have in this Order, issued today in a case we've been following.
In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support."
The panel majority viewed the complaint as alleging a Loretto physical invasion taking, and held the plaintiffs did not plausibly state a claim because they could not allege the invasion was permanent. The majority instead relied on PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), in which the Supreme Court concluded that the California Supreme Court had not effected a taking when it held that the California Constitution required shopping centers to be forums for public speech.
The property owners sought en banc review, asking all of the active judges on the Ninth Circuit to take a look. No deal, review denied. But not without comments. Two judges concurred in the denial: the panel got it right. A whole lot more judges (eight, including some -- but not all -- recent appointees) dissented from the denial en banc, and pointed out "[t]his decision not only contradicts Supreme Court precedent but also causes a circuit split." Dissental at 10. (That split is with the Federal Circuit, by the way, perhaps the most important federal circuit when it comes to takings cases.)
The issue? How "permanent" does a physical invasion have to be to qualify as a Loretto taking (or, more accurately here, how well does a complaint need to plead facts to show that the invasion qualified as a Loretto taking)? The panel majority and the concurral pointed out that union organizers aren't allowed on the property all the time. The panel dissent and the dissental pointed out that it shouldn't matter that the occupation by union organizers was not literally 24/7, merely that the property right allegedly taken was, you know, taken (government takes easements all the time and pays for that privilege).
[Barista's note: the "permanent" fetish for physical occupations is way overblown, in our opinion. Wait long enough and everything is really temporary; nothing is truly permanent (hat tip John Maynard Keynes). And we thought Arkansas Game solved that particular matter. And last time we checked, surfers weren't on Nollan property day and night; when we went by Loretto building in 2017, the cables on the building wasn't the same CATV cables weren't there in 1982 (and the installer can always remove any equipment); Army Air Corps B-25's weren't stationed over farmer Causby's chickens 24/7.]
We're not in this post going to go into detail of the two opinions. Lawprof Ilya Somin has, as usual, beat us to the punch, and we really can't much improve on what he said (see "Ninth Circuit Refuses to Reconsider Ruling that Mandating Union Organizer Access to Employer Property is not a Taking—but Eight Judges Dissent"). We suggest you read his analysis and conclusion ("The issue here comes down to whether a "permanent physical occupation" occurs only when it is literally continuous, or when the right to occupy continues indefinitely, but does not apply to all hours of the day, all the time.").
We might add more after a chance to read the judges' writings, but for now will leave you with Professor Somin:
A permanent right to an easement to enter or occupy an owner's land is a severe infringement on property rights even if applies only to certain hours of the day, and even if the intrusion is not continuous. Moreover, the right to exclude unwanted entrants is a central element of property rights in the Anglo-American legal tradition. So it is hard to argue that a major restriction on it is not a taking of property rights.It's also worth noting that this case has implications that go far beyond the union organizing context. If the Ninth Circuit majority's position prevails, it could allow the government to impose a wide range of access requirements on owners without paying compensation.
Stay tuned. There's no question in our mind that a cert petition is on the way.
Order, Cedar Point Nursery v. Shiroma, No. 16-16321 (9th Cir. Apr. 29, 2020)
