Judge Collins, Eight Others, Fault Colleagues for Not Granted Rehearing En Banc in Case in Which Majority of Three-Judge Panel Found Civil Rights Action Against Under Takings Clause Was Procedurally Barred
By a MetNews Staff Writer
The majority of the non-recused active judges of the Ninth U.S. Circuit Court of Appeals have voted against a rehearing, en banc, of a case in which two members of a three-judge panel found an action under the Takings Clause to be procedurally barred, with eight judges yesterday joining in a dissent to allowing that decision to stand, asserting that it contravenes a recent pronouncement by the U.S. Supreme Court.
Authoring the dissent was Judge Daniel P. Collins. Signing it were Judges Bridget Shelton Bade, Daniel Aaron Bress, Patrick J. Bumatay, Consuelo M. Callahan, Sandra S. Ikuta, Ryan D. Nelson, Milan D. Smith Jr. and Lawrence VanDyke.
Collins maintained that the three-judge panel’s majority opinion, filed March 17, runs afoul of the 2019 holding of the nation’s high court in Knick v. Township of Scott. There, Chief Justice John Roberts wrote for the court in overruling a 1985 Supreme Court decision to the extent that it requires a plaintiff alleging a taking by government of property without just compensation to obtain a denial of the claim in state court before suing in federal court.
“We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled.”
That decision, Collins insisted, forecloses the view expressed by the majority in the March 17 Ninth Circuit decision.
March 17 Decision
Writing for the majority of the three-judge panel was Judge Michelle T. Friedland, joined by Judge Ronald M. Gould. They affirmed a decision by District Court Judge Richard Seeborg of the Northern District of California dismissing, without leave to amend, an action challenging the application of a San Francisco program.
Under it, where multi-unit buildings are owned by persons on a tenancy-in-common basis, conversion of the units into condominiums was permitted on condition that any existing tenants be granted lifetime leases in the converted properties.
The plaintiffs in a civil rights action against San Francisco, Peyman Pakdel and Sima Chegini, in 2009 purchased an interest in a tenancy-in-common unit, intending to move into upon retiring, while leasing it in the meantime. Under the San Francisco program, they are now barred from denying a lifetime lease to their tenant.
Friedland determined that Knick “left…untouched” the prerequisite to a federal suit of first obtaining a state-court determination that the requirement in question applies to the would-be plaintiff’s property. She wrote:
“We agree with the City…that Plaintiffs’ takings claim remains unripe because they never obtained a final decision regarding the application of the Lifetime Lease Requirement to their Unit.”
Then-Judge (now Senior Judge) Carlos Bea took the side of the plaintiffs, saying in his dissent:
“[T]he Plaintiffs twice requested to be excused from the lifetime lease requirement. The City denied these requests in a final decision, and the Plaintiffs’ takings claim is ripe for adjudication.”
Collins argued that Friedland’s opinion “saddles Plaintiffs with a plainly final decision that will nonetheless be deemed (forever) to be ‘non-final’ for takings purposes simply because, earlier during the administrative process. Plaintiffs failed to pursue possible administrative measures that the City now denies to them.” He commented:
“Less than one year after the Supreme Court squarely held that a plaintiff asserting a Takings Clause claim under § 1983 is not required to exhaust state remedies, see Knick v. Township of Scott…, the panel majority in this case effectively imposed such a requirement by holding that a plaintiff who commits a procedural default during the local administrative process forfeits any right to thereafter assert a takings claim. Because the panel’s unprecedented decision sharply departs from settled law and directly contravenes the Supreme Court’s decision in Knick, I respectfully dissent from our denial of rehearing en banc.”
All of the nine dissenting judges were appointed by Republican presidents—six by President Donald Trump and three by President George W. Bush. Friedland was chosen by President Barack Obama and Gould was placed on the bench by President Bill Clinton, both Democrats.
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