The property owners' summary is excerpted below:
I. The panel erred in holding that it lacked jurisdiction to consider petitioners’ defense under the Takings Clause. That claim is immediately ripe for two independent reasons.
A. First, under Apfel, a party may challenge a governmental demand for a cash transfer without going through the repetitive steps of paying a fine and then going to the Court of Federal Claims to get the same sum back in the form of compensation for the taking.Second, ripeness 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.
B. Recent cases applying a specialized “ripeness”doctrine to takings claims confuse ripeness with equitable principles regarding the propriety of is-suing 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. During the Nineteenth Century, courts (including this Court) held that affirmative injunctive relief was also available under the Clause where a party lacked a“reasonable, certain, and adequate” monetary remedy. This rule paralleled the standard for obtaining affirmative injunctive relief under Ex parte Young, 209 U.S. 123 (1908). The availability of affirmative injunctive relief did not limit the ability of parties to raise the Takings Clause as a defense. Nor was this rule ever characterized as an aspect of “ripeness” or“subject-matter jurisdiction” doctrine. It was viewed as the standard for obtaining injunctive relief under the Clause — what would now be described as “choice of remedies.” Once the background legal rule is properly viewed (as an equitable principle regarding the availability of affirmative injunctive relief), it be-comes clear that the panel’s decision that it lacked jurisdiction because petitioners’ takings claim is “unripe” was erroneous.
II. The review procedures of the AMAA withdraw the Tucker Act. The panel’s holding that those procedures were inapplicable because petitioners challenged the USDA order in their “capacity as producers” rather than “handlers” misunderstands the statutory scheme and contradicts the litigating posture of the government in this very case.The decision below should be reversed and the case remanded for consideration of petitioners’ takings defense on the merits.
Four amicus briefs have been filed in support of the property owners by the Cato Institute, the U.S. Chamber of Commerce, the State of Texas, and a group of constitutional law professors. For those interested, a minor California newspaper has an article with some background. Robert Thomas also has some good thoughts on each of the briefs over at his blog.
We'll see the government's brief and supporting amici's briefs soon. Oral arguments in the case have been set for March 20, 2013.
