No.

_________

In The
Supreme Court of the United States
____________________

LYNDSEY BALLINGER; SHARON BALLINGER,

Petitioners,

v.

CITY OF OAKLAND,
Respondent.
____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Ninth Circuit
____________________

PETITION FOR WRIT OF CERTIORARI

____________________

J. DAVID BREEMER*
*Counsel of Record
BRIAN T. HODGES
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
[email protected]
Counsel for Petitioners
 i

QUESTIONS PRESENTED

1. Whether the unconstitutional conditions tests

in Nollan v. California Coastal Commission, 483 U.S.
825 (1987), and Dolan v. City of Tigard, 512 U.S. 374
(1994), apply to an ordinance that requires rental
owners to make a payment to a tenant before the
owners may end the tenancy and reoccupy their home.

2. Whether “state action” sufficient to justify a

Fourth Amendment “seizure” claim exists when a law
directs the transfer of property from one private
citizen to another.
 ii

LIST OF ALL PARTIES

Lyndsey and Sharon Ballinger were the plaintiffs

in the district court and appellants in the Ninth
Circuit Court of Appeals and are the petitioners
herein.

The City of Oakland, California, is the municipal

respondent.

STATEMENT OF RELATED CASES

The proceedings identified below are directly

related to the above-captioned case in this Court.

Ballinger v. City of Oakland, No. 18-cv-07186-

HSG, 398 F. Supp. 3d 560 (N.D. Cal. Aug. 2, 2019).

Ballinger v. City of Oakland, No. 19-16550,

__ F.4th __, 2022 WL 289180 (9th Cir. Feb. 1, 2022).
 iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

LIST OF ALL PARTIES ............................................. ii

STATEMENT OF RELATED CASES ....................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS AND

STATUTES AT ISSUE ............................................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 6

A. The Ballingers’ Lease and Enactment

of the Tenant Payment Requirement ........... 6

B. The Ballingers’ Payment and Federal

Suit for Reimbursement ................................ 8

C. The Ninth Circuit Opinion .......................... 10

REASONS FOR GRANTING THE PETITION ....... 11

 iv

I. THE DECISION BELOW RAISES AN

IMPORTANT CONSTITUTIONAL
QUESTION ABOUT THE REACH OF
NOLLAN AND DOLAN AND
DEEPENS A PERSISTENT
CONFLICT ON THE ISSUE ......................... 13

A. The Decision Below Conflicts With

the Court’s Precedent .................................. 14

1. The Nollan/Dolan tests ......................... 14

2. The Ninth Circuit decision is

irreconcilable with this Court’s cases .... 16

B. The Decision Below Conflicts With

the Decisions of Other Federal and
State Courts ................................................. 20

1. The decision below conflicts with

the Sixth Circuit’s approach ................. 21

2. The decision below conflicts with

state court decisions ............................... 22

II. THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT
AND THE DECISIONS OF OTHER
CIRCUITS IN HOLDING THAT A LAW
THAT COMPELS A SEIZURE OF
PROPERTY IS INSUFFICIENT TO
CREATE “STATE ACTION” ......................... 25
 v

A. The Decision Below Conflicts With

This Court’s Emphasis on the Role of
Coercive Law in the “State Action”
Analysis ....................................................... 26

B. The Decision Below Exacerbates a

Conflict Among the Circuits on the
Proper “State Action” Analysis
When Laws Authorize a Private
Seizure of Property ...................................... 29

1. The Third, Fourth, Fifth, Eighth,

and Tenth Circuits give weight
to the authority of state law in
gauging whether a seizure by a
private party involves “state action” ..... 30

2. The First and Ninth Circuits

discount the force of state law ............... 33

CONCLUSION.......................................................... 35

APPENDIX

Opinion, U.S. Court of Appeals for the

Ninth Circuit (filed Feb. 1, 2022) ........................... A-1

Order Granting Motion to Dismiss,

U.S. District Court for the Northern
District of California (filed Aug. 2, 2019)............... B-1

Oakland Municipal Code Sections 8.22.800

through 8.22.870 ..................................................... C-1
 vi

TABLE OF AUTHORITIES

Cases

Adams v. S. California First National Bank,

492 F.2d 324 (9th Cir. 1973) ............................... 34

Adickes v. S. H. Kress & Co.,

398 U.S. 144 (1970) ............................................. 27

Alabama Ass’n of Realtors v.

Dep’t of Health & Human Services,
141 S. Ct. 2485 (2021) ......................................... 18

Am. Furniture Warehouse Co. v. Town of Gilbert,

425 P.3d 1099 (Ariz. Ct. App. 2018).................... 23

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ............................................... 10

Anderson Creek Partners, L.P. v. Cty. of Harnett,

854 S.E.2d 1 (N.C. Ct. App. 2020)....................... 23

Apartment Ass’n of Greater Los Angeles v.

City of Beverly Hills,
No. CV 18-6840, 2019 WL 1930136
(C.D. Cal. Apr. 17, 2019) ....................................... 3

Ballinger v. City of Oakland,

__ F.4th __, 2022 WL 289180
(9th Cir. Feb. 1, 2022) ........................................... 1

Ballinger v. City of Oakland,

398 F. Supp. 3d 560 (N.D. Cal. 2019) ................... 1

Better Housing for Long Beach v. Newsom,

452 F. Supp. 3d 921 (C.D. Cal. 2020).................. 35
 vii

Blum v. Yaretsky,
457 U.S. 991 (1982) ........................................ 27-28

Brentwood Academy v.
Tennessee Secondary School Athletic Ass’n,
531 U.S. 288 (2001) ........................................ 26-27

California Bldg. Indus. Ass’n v. City of San Jose,

136 S. Ct. 928 (2016) ........................... 5, 14, 20, 25

California Bldg. Indus. Ass’n v. City of San Jose,

351 P.3d 974 (Cal. 2015) ..................................... 23

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) .............................. 14, 16-19

Coleman v. Turpen,
697 F.2d 1341 (10th Cir. 1982) ...................... 30-31

Cox Bakeries of North Dakota, Inc. v.

Timm Moving & Storage, Inc.,
554 F.2d 356 (8th Cir. 1977) ............................... 31

Dabbs v. Anne Arundel Cty.,

182 A.3d 798 (Md. 2018) ..................................... 23

Dolan v. City of Tigard,

512 U.S. 374 (1994) .............................. 3, 13, 15-18

Douglass Properties II, LLC v. City of Olympia,

479 P.3d 1200 (Wash. Ct. App. 2021) ................. 23

F.P. Dev., LLC v. Charter Twp. of Canton, Mich.,

16 F.4th 198 (6th Cir. 2021) ................................ 21

Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) .................................. 25, 27-28
 viii

Frost v. R.R. Comm’n of Cal.,

271 U.S. 583 (1926) ....................................... 14, 17

Highlands-In-The-Woods, L.L.C. v. Polk Cty.,

217 So. 3d 1175 (Fla. Dist. Ct. App. 2017) ......... 24

Hollis v. Itawamba County Loans,

657 F.2d 746 (5th Cir. 1981) ............................... 32

Home Builders Ass’n of Dayton & the

Miami Valley v. Beavercreek,
729 N.E.2d 349 (Ohio 2000) ................................ 22

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ........................................ 16-17

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ....................................... 25, 27

Jarvis v. Village Gun Shop, Inc.,

805 F.3d 1 (1st Cir. 2015) .................................... 33

Koontz v. St. Johns River Water

Management Dist.,
570 U.S. 595 (2013) ...................................... passim

Lambert v. City & County of San Francisco,

529 U.S. 1045 (2000) ....................................... 5, 13

Levin v. City & County of San Francisco,

71 F. Supp. 3d 1072 (N.D. Cal. 2014) ................... 3

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................. 17

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) .................................. 25-28, 34
 ix

Melara v. Kennedy,
541 F.2d 802 (9th Cir. 1976) .......................... 33-34

Mira Mar Development Corp. v. City of Coppell,

421 S.W.3d 74 (Tex. Ct. App. 2013) .................... 22

Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ............................................... 3

Owen v. City of Portland,

497 P.3d 1216 (Or. 2021) ....................................... 3

Parking Ass’n of Georgia, Inc. v. City of Atlanta,

515 U.S. 1116 (1995) ............................ 5, 14, 19-20

Parks v. “Mr. Ford,”

556 F.2d 132 (3d Cir. 1977) ............................ 32-33

Presley v. City of Charlottesville,

464 F.3d 480 (4th Cir. 2006) .......................... 31-32

Puce v. City of Burnsville,

__ N.W.2d __, 2022 WL 351119
(Minn. Ct. App. Feb. 7, 2022) ............................. 22

Simpson v. North Platte,

292 N.W.2d 297 (Neb. 1980) ............................... 16

Skinner v. Ry. Labor Executives’ Ass’n,

489 U.S. 602 (1989) ............................................. 29

Spencer v. Lee,
864 F.2d 1376 (7th Cir. 1989) ............................... 5

United States v. Classic,

313 U.S. 299 (1941) ....................................... 12, 28
 x

Washington Townhomes, LLC v.

Washington Cty. Water Conservancy Dist.,
388 P.3d 753 (Utah 2016)............................. 4-5, 24

Yee v. City of Escondido,

503 U.S. 519 (1992) ............................................. 18

United States Constitution

U.S. Const. amend. IV ............................................. 1-2

U.S. Const. amend. V .................................................. 1

U.S. Const. amend. XIV, § 1 ....................................... 2

Statutes

28 U.S.C. § 1257(a) ..................................................... 1

Oakland Mun. Code § 8.22.850.D.1.......................... 28

Oakland Mun. Code § 8.22.860 ............................ 8, 28

Other Authorities

Callies, David L., Public and Private Land

Development Conditions: An Overview,
52 UIC J. Marshall L. Rev. 747 (2019) ............... 20

Mulvaney, Timothy M.,

The State of Exactions,
61 Wm. & Mary L. Rev. 169 (2019) ......... 12, 20-21

Niles, John Dorsett, et al.,

Making Sense of State Action,
51 Santa Clara L. Rev. 885 (2011) ...................... 30
 xi

Rosenthal, Deborah, Nollan, Dolan,

and the Legislative Exception,
66 Plan. & Envtl. L. No. 3 (2014) ....................... 20

Sullivan, Kathleen M.,

Unconstitutional Conditions,
102 Harv. L. Rev. 1413 (1989) ....................... 14-15

Turner, Christian, State Action Problems,

65 Fla. L. Rev. 281 (2013) ................................... 30
 1

PETITION FOR WRIT OF CERTIORARI

Lyndsey and Sharon Ballinger respectfully

request that this Court issue a writ of certiorari to
review the judgment of the Ninth Circuit Court of
Appeals.

OPINIONS BELOW

The opinion of the Ninth Circuit is published and

reported at Ballinger v. City of Oakland, __ F.4th __,
2022 WL 289180 (9th Cir. Feb. 1, 2022), and is
reproduced in Petitioners’ Appendix (App.) at A. The
district court’s opinion is published and reported at
Ballinger v. City of Oakland, 398 F. Supp. 3d 560
(N.D. Cal. 2019), and appears at App. B.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a). The Ninth Circuit Court of Appeals
dismissed this federal constitutional case in an
opinion issued on February 1, 2022.

CONSTITUTIONAL PROVISIONS
AND STATUTES AT ISSUE

The Takings Clause of the United States

Constitution provides that “private property [shall
not] be taken for public use, without just
compensation.” U.S. Const. amend. V.

The Fourth Amendment states, in part: “The right

of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
 2

and seizures, shall not be violated . . . .” U.S. Const.

amend. IV.

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that no state
shall “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV,
§ 1.

Oakland Municipal Code Sections 8.22.800-

8.22.870, the text of which is attached as App. C.

INTRODUCTION

Lyndsey and Sharon Ballinger (Ballingers) are

nurse practitioners in the United States Air Force. In
2016, while living in Oakland, California, they were
assigned to temporary military duty on the East
Coast. App. B-4-5. Prior to leaving California, they
leased their three-bedroom home to a pair of software
engineers. Knowing their East Coast duty would be
short, they agreed only to a year-long lease with the
tenants, one which could be terminated at the end of
the year with a 60-day notice. Id. In 2018, they were
ready to give that notice as they prepared to return to
Oakland with a new baby. App. B-5.

However, the Ballingers soon learned that, while

they were away, the City of Oakland (City) passed a
law requiring rental property owners to pay between
$6,500 and $10,000 to their tenants—sometimes
called a “relocation payment”—before the owners
could lawfully end a tenancy and move home. App. B-
3-4. Oakland is one of approximately a dozen West
Coast cities that have adopted such ordinances in the
last decade. The tenant payments required by these
 3

laws can range from a few thousand dollars to more

than a hundred thousand dollars. See Owen v. City of
Portland, 497 P.3d 1216, 1219 (Or. 2021) (“The
amount of relocation assistance required varies from
$2,900 for a studio to $4,500 for larger units.”); Levin
v. City & County of San Francisco, 71 F. Supp. 3d
1072, 1078-79 (N.D. Cal. 2014) (noting payment
amounts of “$117,958.89” and “$223,782.25”). Such
requirements are typically justified as a means to
mitigate for the high cost of acquiring rental housing
in West Coast cities. Levin, 71 F. Supp. 3d at 1085
(payments meant to mitigate high, open market
rental costs); Apartment Ass’n of Greater Los Angeles
v. City of Beverly Hills, No. CV 18-6840, 2019 WL
1930136, at *1 (C.D. Cal. Apr. 17, 2019) (relocation
payment scheme meant to address “the shortage of
affordable housing in the City, to halt the dramatic
rise in rent”).

The 2018 enactment of Oakland’s tenant payment

provisions meant that the Ballingers had to pay
$6,582.40 to their tenants before they could end their
tenancy according to the lease and return to their
home. Subject under the law to stiff penalties for
noncompliance, the Ballingers made the payment.
App. B-5; App. A-5.

The Ballingers then sued, claiming, in part, that

the ordinance provision requiring the transfer of their
money to their tenants was an unconstitutional
condition on their right to exclusively possess and use
their home. App. B-5-6. The Ballingers relied
significantly on this Court’s decisions in Nollan v.
California Coastal Commission, 483 U.S. 825 (1987),
and Dolan v. City of Tigard, 512 U.S. 374 (1994),
 4

which hold that “a unit of government may not

condition the approval of a land-use permit on the
owner’s relinquishment of a portion of his property
unless there is a ‘nexus’ and ‘rough proportionality’
between the government’s demand and the effects of
the proposed land use.” Koontz v. St. Johns River
Water Management Dist., 570 U.S. 595, 599 (2013)
(restating the Nollan/Dolan inquiry). The Ballingers
further claimed that the tenant payment requirement
amounted to an unreasonable seizure of their
property; i.e., the $6,582.40 sum transferred to their
tenants under the law. App. B-22-24.

In a published decision, the Ninth Circuit

dismissed the Ballingers’ claims, holding that the
Nollan and Dolan tests do not apply to the ordinance-
imposed payment condition. See App. A-20-23. The
court dismissed the Ballingers’ unreasonable seizure
claim on the ground that the loss of their money was
not “state action.” App. A-23-25.

The Ninth Circuit’s decision thus presents this

Court with the opportunity to address two important
and persistent questions. First, it raises an issue as to
the scope of the Nollan and Dolan unconstitutional
conditions tests and, particularly, whether those tests
apply to generally applicable regulations that impose
monetary conditions on the exercise of traditional
property rights. Many lower courts have adopted an
improperly narrow view of Nollan and Dolan, leaving
property owners without protection from regulations
that unconstitutionally extract property interests as a
condition of the exercise of a protected property right.
Further, courts are in conflict on the issue, a problem
that “stems in part from the Supreme Court’s lack of
 5

clear guidance.” Washington Townhomes, LLC v.

Washington Cty. Water Conservancy Dist., 388 P.3d
753, 758 n.3 (Utah 2016).

Justices of this Court have accordingly expressed

a desire to address the issue. Lambert v. City &
County of San Francisco, 529 U.S. 1045 (2000) (Scalia,
J., dissenting from denial of certiorari); California
Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928,
928 (2016) (Thomas, J., concurring in denial of
certiorari); Parking Ass’n of Georgia, Inc. v. City of
Atlanta, 515 U.S. 1116 (1995) (Thomas, J., and
O’Connor, J., dissenting from denial of certiorari).
That this Court has not yet done so “casts a cloud on
every decision by every local government to require a
person seeking a permit to pay or spend money.”
Koontz, 570 U.S. at 627-28 (Kagan, J., dissenting).

Second, the decision below raises an important

issue as to whether a legally required transfer of
private funds from one private party to another
involves sufficient “state action” to justify a 42 U.S.C.
§ 1983 claim under the Fourth Amendment. “Despite
the great number of cases and the seemingly well-
honed lexicon of ‘tests,’ the concept of ‘state action’
remains a difficult one.” Spencer v. Lee, 864 F.2d 1376,
1382 (7th Cir. 1989) (Ripple, J., concurring in part and
dissenting in part). The Ninth Circuit’s failure to find
that state action arises when a law directly compels
the transfer of property from one party to another
highlights the continuing problem and conflicts with
this Court’s precedent and with the decisions of other
circuits.

The Court should grant the Petition to decide that

the unconstitutional conditions doctrine applies when
 6

a regulation requires a property owner to cede

property prior to engaging in a traditional use of
property, such as the right to occupy one’s home,
thereby resolving the disagreement among lower
courts. It should further grant the Petition to hold
that when a law compels one private party to transfer
property to another, the law itself creates “state
action” subject to redress under the Fourth
Amendment. Since both issues were addressed below
on the merits, and without procedural impediment,
this case presents a clean vehicle for resolving the
questions presented.

STATEMENT OF THE CASE

This Petition arises from the Ninth Circuit’s

conclusion that the Ballingers have no viable claim,
under the unconstitutional conditions doctrine or
Fourth Amendment, against an ordinance requiring
them to transfer $6,582.40 to their tenants before they
could end a tenancy and reoccupy their home for
personal use.

A. The Ballingers’ Lease and Enactment of the

Tenant Payment Requirement

In 2015, while serving in the Air Force as nurse

practitioners, the Ballingers owned and lived in a
single-family home in Oakland. App. B-4. When the
Ballingers were notified that they were being
temporarily assigned to the Washington, D.C., area,
they decided to rent their home to a pair of local
software engineers. App. B-4. Knowing they would
have to return to the Bay Area before too long, the
Ballingers entered into a one-year lease that ended in
September of 2017. At that point, the lease converted
 7

to a month-to-month tenancy which either party could

terminate. Id.

In January 2018, the City of Oakland amended

prior ordinances to include new sections requiring
rental property owners to make a tenant “relocation
payment” before ending a tenancy and moving back
into a home. See App. C. As part of a “Uniform Tenant
Relocation Ordinance,” the new provisions directed
rental owners to make payments according to a
schedule that calculates the amount due based on the
size of the unit. App. B-3-4. Tenants are entitled to a
$6,500 payment if they leave a one-bedroom unit,
$8,000 when departing a two-bedroom unit, and
$9,875 for a three-bedroom unit. App. C-3. Tenant
households that “include lower income, elderly or
disabled Tenants, and/or minor children shall be
entitled to a single additional relocation payment of
two thousand five hundred dollars ($2,500.00) per
unit from the Owner.” Id. at C-4.

In enacting the ordinance, the City explained that

the mandated payments are necessary to mitigate for
displaced tenants’ relocation costs and related “social
equity” issues. Excerpts of Record on Appeal at 42-43,
67-70 (Ninth Circuit Docket No. 8). More particularly,
the tenant payment is designed to mitigate for the
high cost of new tenant housing in Oakland. App. B-3.
However, the ordinance does not require a departing
tenant to use the payment for housing needs. A tenant
may use a “relocation” payment for any personal
purpose. App. A-5.

Owners who fail to make the required tenant

payment are subject to criminal, administrative, and
 8

civil penalties. App. C-8-9 (Oakland Mun. Code

§ 8.22.860).

B. The Ballingers’ Payment and Federal Suit

for Reimbursement

In 2016, when the Ballingers executed a one year

lease to rent their home, the tenant payment
requirement did not exist. App. B-4. However, by the
time the Ballingers were ready to return to the Bay
Area from their East Coast assignment, the ordinance
was in force. Needing to return to their home
immediately, the Ballingers complied with the
ordinance. They gave their tenants a 60-day notice of
termination of the lease, in accordance with the lease,
and paid the tenants $6,582.40, as required by the
City ordinance. Id. at B-5.

On November 28, 2018, the Ballingers sued the

City of Oakland in the U.S. District Court for the
Northern District of California. Two months later,
they filed a First Amended Complaint (FAC), the
operative complaint. In that pleading, the Ballingers
asserted six claims: (1) a facial claim for a per se,
physical taking of private property for a private
purpose, (2) an as-applied claim for an uncompensated
and unconstitutional physical taking, (3) facial and
as-applied claims under the Nollan/Dolan
unconstitutional conditions doctrine, (4) facial and as-
applied claims for an unreasonable seizure under the
Fourth Amendment, (5) an as-applied claim for
violation of due process, and (6) a claim for
unconstitutional interference with the obligation of
 9

contract. The Ballingers sought damages (just

compensation) and equitable relief.1 App. B-5-6.

The City moved to dismiss the FAC under Federal

Rule of Civil Procedure 12(b)(6). In the ensuing
litigation, the Ballingers argued that the tenant
payment requirement violates the Nollan/Dolan
unconstitutional conditions doctrine because it forces
them to surrender property (money) to exercise their
right to occupy their home, without any connection
between the monetary demand and the impact of their
property use. In response, the City argued that the
Nollan/Dolan tests are inapplicable to the tenant
payment mandate because “generally applicable
legislation is not subject to” such tests, App. B-14. It
also contended that the Ballingers’ Fourth
Amendment seizure claim fails due to the absence of
“state action.” App. B-22.

In a published opinion, the district court granted

the City’s motion. Explaining that the Nollan/Dolan
unconstitutional conditions doctrine only “exists to
prevent the government from using its coercive power
to demand unconstitutional conditions in adjudicative
settings, not to impede the enforcement of generally
applicable laws,” the district court held that the
tenant payment requirement was outside the scope of
Nollan/Dolan. App. B-15-16. With respect to the
seizure claim, it held that “the Ballingers . . . have not
met the preliminary requirement of alleging that a
state actor caused the deprivation.” App. B-23.

1 Because the Ballingers have recently moved out of the City of

Oakland, they no longer press their request for equitable relief.

They continue to seek reimbursement and damages under 42
U.S.C. § 1983.
 10

Relying on Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999), the court explained, “The City’s
mere authorization [of a seizure], as opposed to
encouragement, is not state action.” App. B-24. The
district court accordingly dismissed the Ballingers’
claims.

The Ballingers timely appealed to the Ninth

Circuit. In so doing, they relied solely on their federal
takings, unconstitutional conditions, and
unreasonable seizure claims.

C. The Ninth Circuit Opinion

In an opinion issued on February 1, 2022, the

Ninth Circuit affirmed the district court judgment.
App. A. With respect to the unconstitutional
conditions claim, the Ninth Circuit held that the
tenant payment is not the type of land use condition
subject to Nollan and Dolan. The court’s reasoning
varied. It pointed first to the “landlord/tenant”
regulatory context, App. A-7, 9, and the payment
mandate’s character as a general “monetary
obligation,” rather than a demand for a “specific,
identifiable pool of money,” App. A-10-11, as a basis
for concluding that no taking of property or actionable
claim under Nollan and Dolan existed. App. A-18. The
court later held that Nollan and Dolan also do not
apply because the payment mandate is not tethered to
a “government benefit, such as a permit.” App. A-23.
While the court recognized that Nollan and Dolan
might theoretically apply to legislation, it concluded
that the absence of an explicit “government benefit,
 11

like a permit,” defeated the Ballingers’ Nollan and

Dolan claims. App. A-22-23.

In affirming dismissal of the “unreasonable

seizure” claim, the Ninth Circuit concluded that the
tenant payment mandate did not involve “state
action.” It stated:

The City did not participate in the monetary

exchange between the Ballingers and their
tenants. Neither did it “exercise[ ] coercive
power” . . . . At most, the City was only
involved in adopting an ordinance providing
the terms of eviction and payment. But
enacting the Ordinance of this nature is not
enough—entitling tenants to demand a
relocation payment is a “kind of subtle
encouragement . . . no more significant than
that which inheres in [a government entity]’s
creation or modification of any legal remedy.”
Adopting the Ballingers’ expansive notion of
state action would eviscerate the “essential
dichotomy between public and private acts.”

App. A-24-25 (citations omitted).

REASONS FOR GRANTING THE PETITION

Although this Court has affirmed the applicability

of the unconstitutional conditions doctrine to property
regulation, through the Nollan and Dolan “nexus” and
“rough proportionality” tests, lower courts remain
confused about the scope of those standards. Many
courts limit Nollan and Dolan to only certain contexts,
such as when a condition arises from a formal “permit”
decision. This conflicts with this Court’s broader
 12

articulation of the doctrine, and with other court

decisions that give Nollan and Dolan a broader reach,
including to generally applicable conditions.
Timothy M. Mulvaney, The State of Exactions, 61 Wm.
& Mary L. Rev. 169, 219 (2019) (observing that
“application of Nollan’s and Dolan’s ‘nexus’ and
‘proportionality’ standards generally has been
confined to a narrowly construed set of ‘concrete and
specific,’ ad hoc demands”).

This case also raises a fundamental constitutional

question as to whether a legally required transfer of
property from one person to another involves “state
action” sufficient to justify a claim under 42 U.S.C.
§ 1983. Long ago, this Court recognized that state
action exists where a challenged wrong occurs “by
virtue of state law and [is] made possible only because
the wrongdoer is clothed with the authority of state
law,” United States v. Classic, 313 U.S. 299, 326
(1941). Yet, some circuits, including the Ninth Circuit
in this case, have failed to apply this core principle.
This is troubling. If a law that authorizes and directs
a private citizen to appropriate another’s property is
not constitutionally actionable as “state action,” as the
decision below holds, governments can escape the
property rights protections found in the Constitution
by the expedient of authorizing private parties to
directly appropriate property for a public good.
Moreover, the decision below adds to a conflict among
lower courts on the effect of coercive law in the state
action inquiry.

This Court should grant the Petition to confirm

that Nollan/Dolan broadly apply to government
actions, including generally applicable regulation,
 13

that require citizens to surrender property as the price

of exercising basic property rights. See, e.g., Lambert,
529 U.S. at 1045 (Kennedy, J., dissenting from denial
of certiorari). It should also grant the Petition to hold
that state action exists when a law compels a transfer
of property from one party to another.

I.

THE DECISION BELOW RAISES AN

IMPORTANT CONSTITUTIONAL
QUESTION ABOUT THE REACH OF
NOLLAN AND DOLAN AND DEEPENS A
PERSISTENT CONFLICT ON THE ISSUE

Under Nollan and Dolan, the government may

require a person to cede a property interest as a
condition of using real property when necessary to
mitigate for the impact of the proposed use. There
must be an “essential nexus” and “rough
proportionality” between the condition and the impact
of the property use. Koontz, 570 U.S. at 604-05; see
also Dolan, 512 U.S. at 385 (“[G]overnment may not
require a person to give up a constitutional right . . .
to receive just compensation when property is taken
for a public use [ ] in exchange for a discretionary
benefit [that] has little or no relationship to the
property.”); Koontz, 570 U.S. at 604 (the doctrine
prevents “the government from coercing people into
giving [rights] up”).

As the following shows, this Court has portrayed

the Nollan/Dolan inquiry as a broadly applicable
means to separate conditions that are properly
tailored to mitigate negative externalities related to
property use from those that improperly force
 14

property owners to solve public problems. See, e.g.,

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072
(2021). The Ninth Circuit’s decision in this case is
inconsistent with this view and conflicts with other
lower court decisions that apply the Nollan and Dolan
tests to property rights conditions that arise from
generally applicable regulation. Parking Ass’n of
Georgia, 515 U.S. at 1117 (Thomas, J., dissenting from
denial of certiorari) (recognizing a nationwide split of
authority); California Bldg. Indus. Ass’n, 136 S. Ct. at
928 (Thomas, J., concurring in denial of certiorari).

A. The Decision Below Conflicts With the

Court’s Precedent

1. The Nollan/Dolan tests

In its most general sense, the unconstitutional

conditions doctrine enforces constitutional limitations
on state power by forbidding the government from
doing indirectly, through conditions on private
activity, what it cannot accomplish directly. Koontz,
570 U.S. at 606. As this Court explained nearly a
century ago,

the power of the state . . . is not unlimited,

and one of the limitations is that it may not
impose conditions which require the
relinquishment of constitutional rights. . . .
It is inconceivable that guarantees embedded
in the Constitution . . . may thus be
manipulated out of existence.

Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 593-94

(1926); see generally Kathleen M. Sullivan,
Unconstitutional Conditions, 102 Harv. L. Rev. 1413,
 15

1421-22 (1989) (noting that unconstitutional

conditions problems arise when government imposes
a condition that requires one to “forego an activity
that a preferred constitutional right normally protects
from government interference”).

This Court has described the Nollan and Dolan

tests as a “special application” of the unconstitutional
conditions doctrine in the property rights context. In
Koontz, the Court explained that the “nexus” and
“rough proportionality” tests supply a balanced and
fair method for gauging the constitutionality of
conditions on the exercise of property rights. While
the tests allow government to impose conditions that
mitigate the negative externalities of a proposed
property use, they ferret out and reject property use
conditions that are vehicles for taking property for a
public good. 570 U.S. at 604-06.

To ensure that Nollan and Dolan fulfill their

intended purposes, the Court has repeatedly turned
back attempts to limit their tests to only certain kinds
of conditions or government actions. For instance, in
Dolan, this Court applied the standards to invalidate
two development conditions required by a generally
applicable regulatory scheme. 512 U.S. at 377-78. The
Dolan Court rejected the dissent’s claim that the
commercial nature of the property immunized the
conditions from the unconstitutional conditions
doctrine. Id. at 392 (“[S]imply denominating a
governmental measure as a ‘business regulation’ does
not immunize it from constitutional challenge.”). The
Dolan Court also rejected the dissent’s insistence that
application of Nollan and Dolan to the ordinance-
mandated conditions would interfere with the
 16

“necessary and traditional breadth of municipalities’

power to regulate property development.” Id. at 407
n.12 (Stephens, J., dissenting), id. at 390 (quoting
Simpson v. North Platte, 292 N.W.2d 297, 301 (Neb.
1980)).

Subsequently, in Koontz, this Court rejected the

argument that the Nollan/Dolan tests are
inapplicable to conditions requiring monetary
payments as a predicate to the exercise of a real
property interest. 570 U.S. at 612. And in Cedar Point,
the Court made clear that Nollan and Dolan apply to
common property use conditions found in generalized
health and safety regulatory schemes. 141 S. Ct. at
2079. Thus, the Court has articulated the Nollan and
Dolan tests as a broadly applicable means to enforce
the principles of fairness and justice—a central
purpose of the Takings Clause—whenever
government imposes conditions on “basic and familiar
uses of property.” Id. at 2080 (quoting Horne v. Dep’t
of Agric., 576 U.S. 350, 366 (2015)).

2. The Ninth Circuit decision is

irreconcilable with this Court’s cases

In contrast, in the decision below, the Ninth

Circuit adopted a narrow view of the unconstitutional
conditions doctrine by refusing to apply Nollan and
Dolan to a law requiring rental owners to pay tenants
before the owner may lawfully reoccupy their home for
their exclusive use. The court concluded that the
Nollan/Dolan “essential nexus” and “rough
proportionality” tests are inapplicable because the
condition (1) is a regulation of tenant/landlord
relations, App. A-7, 9, (2) does not take a “specific pool”
of funds, but only imposes a general monetary
 17

obligation, id. at A-9-11, id. at A-18, and (3) arises

from a general regulatory scheme, rather than a
specific permit decision. Id. at A-23.

This exception-riddled conception of Nollan and

Dolan is inconsistent with this Court’s understanding
of the unconstitutional conditions doctrine. Indeed, in
its early and foundational decision in Frost, the Court
applied the doctrine to a state law that required
trucking companies to dedicate personal property as a
condition of using highways. 271 U.S. at 593-94. The
Court did not consider it necessary for a formal permit
to be at issue to apply to invalidate the legislated
requirements.

More recently, the Court has repeatedly refused

to adopt the idea, accepted below, that property
owners can be subject to otherwise objectionable
conditions if they put property into “business” or
“commercial” use. Cedar Point, 141 U.S. at 2080
(“basic and familiar uses of property” are not a special
benefit that “the Government may hold hostage, to be
ransomed by the waiver of constitutional protection”
(quoting Horne, 576 U.S. at 366)); see also Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419,
439 n.17 (1982) (“a landlord’s ability to rent his
property may not be conditioned on his forfeiting the
right to compensation” for a physical occupation).
There is no basis for the Ninth Circuit’s conclusion
that Nollan and Dolan do not apply if a condition can
be characterized as “a regulation of the landlord-
tenant relationship.” Dolan, 512 U.S. at 392 (rejecting
an exemption for conditions rooted in “business
regulation”).
 18

To be sure, property owners may expect some

regulation when they rent, but they do not
permanently cede their right to occupy their own
property because of that (temporary) business
decision. Id.; see also, Yee v. City of Escondido, 503
U.S. 519, 528 (1992) (“A different case would be
presented were the statute, on its face or as applied,
to compel a landowner over objection to rent his
property or to refrain in perpetuity from terminating
a tenancy.”); Alabama Ass’n of Realtors v. Dep’t of
Health & Human Services, 141 S. Ct. 2485, 2489
(2021) (confirming that restrictions on an owner’s
ability to recover possession of rental property are
subject to substantial scrutiny because they burden
the protected “right to exclude” others). By the same
token, owners should not be deprived of the
protections afford by the unconstitutional conditions
doctrine when the exercise of a basic property right—
such as the right to personally occupy one’s home—is
subject to an unrelated or disproportionate condition.
But that is exactly where the decision below leaves the
law.

The Ninth Circuit’s other reasoning is equally out

of line with this Court’s jurisprudence. The Ninth
Circuit’s conclusion that Nollan and Dolan do not
apply when a condition arises without a formal
“permit” decision conflicts with Cedar Point’s
application of the doctrine to health and safety
regulations. 141 S. Ct. at 2079. To be sure, the Ninth
Circuit disclaimed any intent to rely on the
“legislative” nature of Oakland’s tenant payment
requirement as a sole basis for declining to apply the
Nollan and Dolan tests. Yet, its subsequent
conclusion, that the tests do not apply unless there is
 19

a “grant of a government benefit, such as a permit,”

renders the former disclaimer of no effect. After all,
legislatures rarely grant “permits;” that task is left to
executive branch agencies acting in an administrative
or adjudicative capacity. The court’s conclusion that a
formal “permit” is required to trigger Nollan and
Dolan is just a more subtle way of holding Nollan and
Dolan inapplicable to legislative demands, and that is
unsupportable. Parking Ass’n of Georgia, 515 U.S. at
1117-18 (Thomas, J., dissenting from denial of
certiorari) (“the general applicability of the ordinance
should not be relevant”).

Finally, the Ninth Circuit’s holding that a

condition must take a “specific, identifiable” pool of
money to trigger Nollan and Dolan is inconsistent
with Koontz. There, of course, this Court applied
Nollan and Dolan to a condition that required the
payment of an amount of money that could come from
any source; the same type of monetary demand in this
case. Koontz, 570 U.S. at 612.

This Court should grant the Petition to explicitly

hold what its precedent already implies: the Nollan
and Dolan tests apply to conditions that demand a
concession of property as the price of exercising a
traditional property right—whether they arise from
an individualized permit decision or a generally
applicable regulatory scheme, whether in the land
development context or the rental regulatory arena.
Taking this step would not render all tenant
payments or other conditions constitutionally infirm.
Cedar Point, 141 S. Ct. at 2079. It would simply allow
courts to distinguish between conditions that are
properly tailored to mitigate negative externalities
 20

and those that wrongly force property owners to solve

problems that are more properly remedied by the
public as a whole. The Ninth Circuit’s decision leaves
the Ballingers and other property owners within the
Ninth Circuit’s jurisdiction devoid of that sensible
protection.

B. The Decision Below Conflicts With the

Decisions of Other Federal and State
Courts

Review is additionally warranted because the

Ninth Circuit’s decision deepens a longstanding split
among the courts on the question whether and when
generally applicable permit conditions are subject to
review under Nollan and Dolan. See Parking Ass’n of
Georgia, 515 U.S. at 1117 (Thomas, J., dissenting);
California Bldg. Indus. Ass’n, 136 S. Ct. at 928
(Thomas, J., concurring); David L. Callies, Public and
Private Land Development Conditions: An Overview,
52 UIC J. Marshall L. Rev. 747, 767-69 (2019)
(discussing conflicts among courts); Deborah
Rosenthal, Nollan, Dolan, and the Legislative
Exception, 66 Plan. & Envtl. L. No. 3, p. 4 (2014)
(discussing the difficulty that courts have in applying
the doctrine to regulatory exactions and their
inconsistent results). This split of authority is firmly
entrenched and cannot be resolved without this
Court’s intervention. Koontz, 570 U.S. at 628 (Kagan,
J., dissenting) (noting that Court’s “refusal ‘to say
more’” about the doctrine’s application to generally
applicable conditions injects uncertainty into local
government decisions to impose monetary conditions);
see also Mulvaney, 61 Wm. & Mary L. Rev. at 194
(describing the issue of the scope of Nollan/Dolan as
 21

“[o]ne of the most pressing questions across the entire

realm of takings law”).

1. The decision below conflicts with the

Sixth Circuit’s approach

In F.P. Dev., LLC v. Charter Twp. of Canton,

Mich., 16 F.4th 198, 206 (6th Cir. 2021), the Sixth
Circuit held that an ordinance-mandated condition on
the development of private property violated Nollan
and Dolan. At issue was a municipal ordinance that
requires property owners to either plant trees or pay
a mitigation fee as a condition of approval of
development actions that will remove trees. Id. at 201-
02. The quantity of mitigation was preset by the
ordinance. Id. As a result of clearing activities on the
plaintiff’s property, the township demanded that it
either plant 187 new trees or pay $47,898 into a tree
fund. Id. at 202.

On appeal, the Sixth Circuit applied Nollan and

Dolan to the requirement, holding that the Township
had failed to show that the ordinance-mandated
conditions were roughly proportional to the impacts of
the development. Id. at 206-07. The court did so
despite the fact the conditions did not arise from an
individualized permit decision.

In contrast, in this case, the Ninth Circuit refused

to apply Nollan and Dolan to the tenant payment
requirement in part because “the Ordinance does not
conditionally grant or regulate the grant of a
government benefit, such as a permit, and therefore
does not fall under the unconstitutional-conditions
umbrella.” App. at A-22-23.
 22

2. The decision below conflicts with state

court decisions

The Ninth Circuit’s decision is also in conflict with

state court decisions that broadly apply Nollan and
Dolan to generally applicable monetary conditions,
including decisions from courts in Minnesota, Texas,
and Ohio.

In the recent case of Puce v. City of Burnsville, a

Minnesota appellate court held that a law requiring
developers to pay a park impact fee of 5% of a project’s
value was subject to the Nollan and Dolan tests. See
__ N.W.2d __, 2022 WL 351119, at *8 (Minn. Ct. App.
Feb. 7, 2022). In Texas, an appellate court reached a
similar result in Mira Mar Development Corp. v. City
of Coppell, 421 S.W.3d 74, 95-96 (Tex. Ct. App. 2013).
There, the Texas court held that Nollan/Dolan apply
to generally applicable monetary conditions and that
a tree mitigation fee violated the doctrine, because it
was based on a formula that was not related to actual
development impacts. Id. Finally, the Ohio Supreme
Court held that Nollan and Dolan applied to an
ordinance establishing a system of impact fees
payable by developers of real estate to aid in the cost
of new roadway projects. Home Builders Ass’n of
Dayton & the Miami Valley v. Beavercreek, 729 N.E.2d
349 (Ohio 2000).

The tenant payment requirement in this case is

comparable to the generally applicable monetary
conditions in Puce, Mira Mar, and Beavercreek. In
each case, the condition was mandated by legislation
and a payment amount preset by a generally
applicable formula. App. A-4-5. But, unlike the
aforementioned state court decisions, the decision
 23

below holds that Nollan and Dolan do not apply to

such conditions. As a result, the court below refused
to even consider whether the $6,582.40 payment
required of the Ballingers—most of which is supposed
to mitigate the high cost of replacement housing—is
reasonably related to the Ballingers’ reoccupation of
their home. App. A-19-23.

In this respect, the Ninth Circuit’s decision is in

line with other lower court decisions that evade
Nollan and Dolan. Such decisions allow the
government to impose conditions that do not address
any adverse impact from property use and which
consequently function as an indirect means to acquire
private property interests for public use. Indeed, since
Koontz, numerous state courts have found ways to
exclude generally applicable monetary conditions
from Nollan and Dolan. These decisions include:
Douglass Properties II, LLC v. City of Olympia, 479
P.3d 1200, 1203 (Wash. Ct. App. 2021) (“the
Nollan/Dolan test does not apply to . . . generally
applicable fees”); Anderson Creek Partners, L.P. v. Cty.
of Harnett, 854 S.E.2d 1, 13-14 (N.C. Ct. App. 2020) (a
generally applicable fee does not invoke the
unconstitutional conditions doctrine); Dabbs v. Anne
Arundel Cty., 182 A.3d 798, 811 (Md. 2018) (“fees
imposed on a generally applicable basis are not
subject to a rough proportionality or nexus analysis”);
California Bldg. Indus. Ass’n v. City of San Jose, 351
P.3d 974, 998, 990 n.11 (Cal. 2015) (exempting general
“conditions that require an applicant to pay a
monetary fee as a condition of obtaining a permit”
from heightened scrutiny); Am. Furniture Warehouse
Co. v. Town of Gilbert, 425 P.3d 1099, 1106 (Ariz. Ct.
App. 2018) (holding that generally applicable
 24

conditions are not subject to scrutiny under

Nollan/Dolan).

Still other courts are so confused on the issue of

whether Nollan and Dolan extend to generalized
regulatory conditions on the use of property that they
have largely given up trying to resolve the issue until
this Court addresses the issue. See Highlands-In-The-
Woods, L.L.C. v. Polk Cty., 217 So. 3d 1175, 1178 n.3
(Fla. Dist. Ct. App. 2017) (“[I]t is unclear whether the
Nollan and Dolan standard applies to generally
applicable legislative determinations that affect
property rights[.]”); Washington Townhomes, LLC v.
Washington Cty. Water Conservancy Dist., 388 P.3d
753, 758 & n.3 (Utah 2016) (noting confusion among
the courts after Koontz and remanding the case to the
lower court to determine the “difficult” question of
whether an impact fee regime is subject to
Nollan/Dolan).

The decision below continues the misguided

attempts by some courts to limit Nollan and Dolan to
the individualized permit context, in conflict with
courts that properly apply Nollan and Dolan to
extractive property conditions, regardless of the
source or generality of the demand. The central
purpose of the Nollan and Dolan tests—to ensure that
the government does not “thwart the Fifth
Amendment right to just compensation” by pressuring
a landowner to surrender constitutionally property
interests to use, or occupy, their property—can only be
satisfied if the doctrine is applied in a consistent
manner throughout the nation. This case provides the
Court with a clear, clean, and much-needed
opportunity to address the judicial split on the
 25

applicability of Nollan and Dolan when a claim

targets generally applicable property use conditions
arising outside the permitting context. California
Bldg. Indus. Ass’n, 136 S. Ct. at 929 (Thomas, J.,
concurring) (noting the “compelling reasons for
resolving this conflict at the earliest practicable
opportunity”). The Court should accordingly grant the
Petition.

II.

THE DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENT
AND THE DECISIONS OF OTHER
CIRCUITS IN HOLDING THAT A
LAW THAT COMPELS A SEIZURE OF
PROPERTY IS INSUFFICIENT TO
CREATE “STATE ACTION”

The decision below also raises a significant

question about the proper “state action” analysis
when a law authorizes a private party to seize the
property of another. The understanding that
constitutional plaintiffs can contest “state actions,”
but not private actions, reflects the truth that “most
rights secured by the Constitution are protected only
against infringement by governments.” Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 156 (1978). The state
action requirement helps ensure “the essential
dichotomy set forth in [the Fourteenth] Amendment
between deprivation by the State, subject to scrutiny
under its provisions, and private conduct, ‘however
discriminatory or wrongful,’ against which the
Fourteenth Amendment offers no shield.” Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 349 (1974).
Indeed, “adherence to the ‘state action’ requirement
 26

preserves an area of individual freedom by limiting

the reach of federal law and federal judicial power” to
governmental action.2 Lugar v. Edmondson Oil Co.,
457 U.S. 922, 936 (1982).

Thus, seizures of property effectuated by the

government are subject to constitutional challenge
under 42 U.S.C. § 1983, in general, while those carried
out through private conduct are generally not. In the
decision below, the Ninth Circuit held that the
Ballingers could not raise a Fourth Amendment
“seizure” claim against the ordinance-mandated
transfer of money to their tenants because it was not
accomplished through “state action.” App. A-24-25.
This conclusion is irreconcilable with this Court’s
“state action” precedent and highlights a conflict
among the federal circuit courts on the role and weight
of coercive law in the state action inquiry in cases
where the law authorizes one private party to seize
the property of another.

A. The Decision Below Conflicts With This

Court’s Emphasis on the Role of Coercive
Law in the “State Action” Analysis

As a general guidepost, this Court has explained

that “state action may be found if . . . there is such a
‘close nexus between the State and the challenged
action’” that seemingly private behavior “may be fairly
treated as that of the State itself.” Brentwood
Academy v. Tennessee Secondary School Athletic

2 This Court has held that, in a § 1983 action, “the statutory

requirement of action ‘under color of state law’ and the ‘state

action’ requirement of the Fourteenth Amendment are identical.”
Lugar, 457 U.S. at 929.
 27

Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson, 419

U.S. at 351). The Court has further noted that the
criteria which inform this test “lack rigid simplicity.”
Id. No “set of circumstances [is] absolutely sufficient.”
Id.; see id. at 296 (“Our cases have identified a host of
facts that can bear” on test.).

Nevertheless, the Court has repeatedly

emphasized that the government’s role in enacting a
law that compels a private party’s invasion of a
constitutional right is a critical, and sometimes
dispositive, factor. In Lugar, the Court stated that
state action could largely be determined by whether
the deprivation “resulted from the exercise of a right
or privilege having its source in state authority.” 457
U.S. at 939. The Court has similarly stated that a
challenged action is likely to qualify as state action
when it results from the exercise of “coercive power.”
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Thus,
while a state’s “mere acquiescence in a private action”
is not enough for state action, Flagg Bros., 436 U.S. at
164, “a State is responsible for the . . . act of a private
party when the State, by its law, has compelled the
act.” Id. (quoting Adickes v. S. H. Kress & Co., 398 U.S.
144, 170 (1970)). A seizure of property that results
from a “procedural scheme created by the statute” is
often “state action.” Lugar, 457 U.S. at 941.

The Ninth Circuit’s conclusion in this case, that

the Ballingers’ unreasonable seizure claim against the
City fails for lack of “state action,” is incompatible
with the Court’s framework for deducing “state
action.” In this case, the City enacted a law that
“requires landlords re-taking occupancy of their
homes upon the expiration of a lease to pay tenants a
 28

relocation payment” of between $6,500-10,000. App.

A-2 (emphasis added). Under the ordinance, “[t]he
Owner must pay the tenant half of the relocation
payment . . . when the termination [of lease] notice is
given to the household and the remaining half when
the tenant vacates the unit.” App. C-6 (Oakland Mun.
Code § 8.22.850.D.1). Further, these payment
requirements are backed by the threat of criminal
penalties and substantial civil penalties outlined in
the law. App. C-8-9 (Oakland Mun. Code § 8.22.860).
The only reason the Ballingers paid their tenants
$6,500 was the command of the ordinance and the
threat of penalties. The tenants took the sum and left.

The Ninth Circuit should have quickly identified

this set of circumstances as a form of state action
subject to a Fourth Amendment claim. After all, the
City, “by its law, has compelled” the taking of money
from the Ballingers and its transfer to tenants. Flagg
Bros., 436 U.S. at 164. This transfer results solely
from a “procedural scheme” that exists and operates
by law. Lugar, 457 U.S. at 941. Yet, the Ninth Circuit
ignored the coercive role of the City’s ordinance in its
state action analysis, holding that it is “not enough”
that an ordinance compels a transfer of property from
one party to another. App. A-25.

The Court should take this case to affirm that a

seizure “by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of
state law, is state action taken ‘under color of ’ state
law.” Classic, 313 U.S. at 326; Blum, 457 U.S. at 1004-
12 (indicating that “coercion” or “significant
encouragement,” would create a “nexus” between the
state and the action). Without such intervention, the
 29

government will be able to evade constitutional limits

on property seizures designed to serve some public
purpose simply by passing laws that cause seizures to
occur directly between private parties. The Court
should close this constitutional loophole. Cf. Skinner
v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614-15
(1989) (when a search of property derives from the
encouragement of a statute or regulation and is thus
not “primarily the result of private initiative,” the
Fourth Amendment applies).

B. The Decision Below Exacerbates a Conflict

Among the Circuits on the Proper “State
Action” Analysis When Laws Authorize a
Private Seizure of Property

The Ninth Circuit’s resolution of the state action

requirement is also worthy of review because it
highlights, and adds to, a persistent conflict among
the circuit courts on the proper state action analysis
when a law allows a private party to seize property.
The decisions of some circuit courts, including the
Third, Fourth, Fifth, Eighth, and Tenth Circuits,
focus heavily on the role and force of state law in
considering whether a private seizure involves state
action. Under this approach, the courts typically find
that state action exists.

In contrast, the First Circuit focuses less on the

role of state law in authorizing a seizure and more on
the nature of the private party acquiring property in
deciding whether a seizure results from state action.
That approach does not result in a finding of state
action. The decision below sides with the First Circuit,
in conflict with the majority of other circuits
addressing the issue. In so doing, the decision below
 30

deepens the split among federal courts on the proper

approach to the state action requirement when state
law authorizes a private party to seize the property of
another. See John Dorsett Niles, et al., Making Sense
of State Action, 51 Santa Clara L. Rev. 885, 886 (2011)
(noting that that judicial inconsistency in the weight
afforded to certain state action factors renders “state
action” issues difficult for practitioners and courts to
predict); Christian Turner, State Action Problems, 65
Fla. L. Rev. 281, 290 (2013) (The lower federal courts
have reached little agreement as to “which facts truly
matter, how much they matter, or why they matter.”).

1. The Third, Fourth, Fifth, Eighth, and

Tenth Circuits give weight to the
authority of state law in gauging
whether a seizure by a private party
involves “state action”

As noted above, decisions from the Third, Fourth

Fifth, Eighth, and Tenth Circuits give heavy weight to
the role of law in directing a seizure of property by a
private party when considering if state action is
present.

In Coleman v. Turpen, 697 F.2d 1341, 1345 (10th

Cir. 1982), the Tenth Circuit held that the seizure and
sale of a vehicle by a private party acting under
authority of state law involved “state action” sufficient
to justify a Fourth Amendment claim. In so holding,
the Tenth Circuit explained that “[t]he State, in
enacting section 7–210 [of a statute], created the right
exercised by [the private seller] when it sold the
truck.” Id. The court accordingly held that in thus
“allowing [the private party] to sell the camper, the
State . . . deprived [the vehicle owner] of his property
 31

in joint participation with [the seller],” creating “state

action.” Id.

To the same effect is the Eighth Circuit’s decision

in Cox Bakeries of North Dakota, Inc. v. Timm Moving
& Storage, Inc., 554 F.2d 356, 360 (8th Cir. 1977).
There, a bakery owner asked a manager to store
$25,000 worth of business equipment after the
bakery’s closure. The equipment was soon stored with
a private moving and storage company. When that
company and the bakery could not agree on payment
for the storage, the storage company sold the disputed
equipment without notice at a public auction. It did so
under authority of a North Dakota statute. The
Eighth Circuit focused on this state law authority in
finding state action, ruling that “where a creditor is
given authority by the state to unilaterally act on the
resolution of legal disputes, his exercise of such
authority must be delimited by the restraints of due
process.” Id.

The Fourth Circuit also accords great weight to

the role of legal authorization in considering whether
an alleged seizure arises from state action. See Presley
v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006).
In Presley, a city published and distributed a map that
showed a public trail crossing private property. When
people began relying on the map to trespass, the
owner complained to the city, but it did not rescind the
map. Id. at 482. When the owner asserted an
unreasonable seizure claim, the Fourth Circuit held
that the claim was viable—even though the
trespassing and seizure was by private parties—
because the city
 32

knew that the [ ] trail map would encourage

public use of the trail—this was, after all, the
map’s purpose . . . [and] also knew that the
City’s involvement would communicate to
trail users that there were no legal barriers
to their use of the entire trail, including the
portion that cut through Presley’s property.

Id. at 488.

The Fifth Circuit uses a similar analysis to the

state action issue. In Hollis v. Itawamba County
Loans, 657 F.2d 746 (5th Cir. 1981), an automobile
buyer claimed his car was unconstitutionally seized
when a creditor summarily took it under authority of
state law for nonpayment of debts. Id. at 750. The
court found that state action existed simply because
the creditor was acting pursuant to a statute that
permitted prejudgment seizures without a hearing.
Id.

The Third Circuit’s precedent is in the same vein.

In Parks v. “Mr. Ford,” 556 F.2d 132, 141 (3d Cir.
1977), a private repairmen retained and sold vehicles
when the owners refused to pay for repairs. The
owners asserted that this action violated their due
process rights. The Third Circuit held that state
action existed because the repairmen acted under the
state statutory authority. The court observed that a
“statute not only extended the power of sale to the
garageman but also directed him to follow the same
procedures employed by a sheriff or constable.” Id.
The court concluded: “by . . . authorizing sales to take
place, directing how they are to be carried out, and
giving them the effect of judicial sales,” “state action
 33

exists when a garageman sells a customer’s vehicle

pursuant to [the statute].” Id.

2. The First and Ninth Circuits discount

the force of state law

The decisions of the First Circuit and Ninth

Circuit afford less weight to the role of state law
authorization in considering the state action issue in
the private party seizure context. In Jarvis v. Village
Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), for
instance, the First Circuit considered whether a gun
owner could challenge the transfer of his legally
confiscated gun from police to a gun shop as an
unconstitutional seizure. The court found no
actionable state action. It noted at the outset that “[i]t
is ‘[o]nly in rare circumstances’ that private parties
can be viewed as state actors.” Id. at 8 (citation
omitted). The First Circuit then discounted a
Massachusetts statute that authorized the police to
transfer the guns to a private business. It stated that,
“[t]aken alone, that statutory authorization is too
fragile a link: for purposes of demonstrating the
required nexus between state action and private
action, we think it insufficient simply to point to a
state statute authorizing the actions of the private
entity.” Id. at 9.

The Ninth Circuit’s precedent is consistent with

the First Circuit. In Melara v. Kennedy, 541 F.2d 802,
804-05 (9th Cir. 1976), the Ninth Circuit held that
there must be “significant state involvement” before
the due process guarantees of the Constitution will
attach to a seizure of property by a private person. It
further held that “[t]he authorization by statute of the
challenged conduct does not by itself require a finding
 34

of state action.” Id. at 804. Instead, “the central

inquiry is whether the state of California is
significantly involved or entangled” in a loss of
property. Id.; see also Adams v. S. California First
National Bank, 492 F.2d 324, 330 (9th Cir. 1973).

The Ninth Circuit’s decision in this case is in the

same vein. Here, the Ballingers argued that “[t]he
transfer of thousands of dollars of the Ballingers’
funds occurs only because the City, a political
subdivision of the State, enacted a law that requires it
and penalizes owners who do not pay up. This act of
law is ‘obviously is the product of state action.’” 9th
Cir. Dkt. 29 at PDF pp. 29-30 (quoting Lugar, 457 U.S.
at 941).

The Ninth Circuit disagreed in the decision below,

explaining:

Because the tenants were not willful

participants in joint activity with the State,
they cannot be fairly treated as the State
itself. Nor did the City actively encourage,
endorse, or participate in any wrongful
interference by the tenants with the
Ballingers’ money. At most, the City was only
involved in adopting an ordinance providing
the terms of eviction and payment. But
enacting the Ordinance of this nature is not
enough . . . .

App. A-24-25 (citations omitted; emphasis added).

While this analysis is consistent with First Circuit

precedent, it conflicts with the approach of a majority
of other circuits. District courts within the Ninth
 35

Circuit have already begun to follow the Ballinger

analysis, further adding to the confusion among
federal courts. See Better Housing for Long Beach v.
Newsom, 452 F. Supp. 3d 921, 936 (C.D. Cal. 2020).
There, a federal court held that “[t]he only state action
here is the Governor’s signature on AB 1482. But
passing or signing a bill that may lead to the transfer
of private property between private parties does not
gives rise to a Fourth Amendment Claim.” Id.
(emphasis added).

The Court should grant the Petition to hold that

the demands of state law are a primary factor in the
state action analysis and that state action exists when
a law mandates the transfer of property from one
private party to another.

CONCLUSION
The Court should grant the Petition.

DATED: February 2022.

Respectfully submitted,

J. DAVID BREEMER*
*Counsel of Record
BRIAN T. HODGES
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
[email protected]
Counsel for Petitioners
 Appendix A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNDSEY BALLINGER; SHARON No. 19-16550

BALLINGER,
D.C. No.
Plaintiffs-Appellants, 4:18-cv-07186-
HSG
v.

CITY OF OAKLAND, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted October 22, 2020

Submission Withdrawn July 16, 2021
Resubmitted January 25, 2022
San Francisco, California

Filed February 1, 2022

Before: Richard R. Clifton, N. Randy Smith, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

 Appendix A-2

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal

of an action brought pursuant to 42 U.S.C. § 1983
challenging the City of Oakland’s Uniform Residential
Tenant Relocation Ordinance, which requires
landlords re-taking occupancy of their homes upon the
expiration of a lease to pay tenants a relocation
payment.

Plaintiffs alleged that the relocation fee is an

unconstitutional physical taking of their money for a
private rather than public purpose and without just
compensation. Alternatively, they claimed that the fee
constitutes an unconstitutional exaction of their
Oakland home, and an unconstitutional seizure of
their money under the Fourth and Fourteenth
Amendments.

The panel held that although in certain

circumstances money can be the subject of a physical,
also called a per se taking, the relocation fee required
by the Ordinance was a regulation of the landlord-
tenant relationship, not an unconstitutional taking of
a specific and identifiable property interest. The panel
further stated that because there was no taking, it did
not need to address whether the relocation fee was
required for a public purpose or what just
compensation would be.

*This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the
reader.
 Appendix A-3

The panel rejected plaintiffs’ assertion that the

City placed an unconstitutional condition, called an
exaction, on their preferred use of their Oakland
home. The panel held that because the relocation fee
here was not a compensable taking, it did not
constitute an exaction.

The panel affirmed the dismissal of plaintiffs’

seizure claim. The panel held that plaintiffs had not
established a cognizable theory of state action; the
City did not participate in the monetary exchange
between plaintiffs and their tenants.
_________________________________________________

COUNSEL

J. David Breemer (argued), Meriem Lee Hubbard, and

Daniel M. Ortner, Pacific Legal Foundation,
Sacramento, California, for Plaintiffs-Appellants.

Kevin P. McLaughlin (argued), Deputy City Attorney;

David A. Pereda, Special Counsel; Maria Bee, Chief
Assistant City Attorney; Barbara J. Parker, City
Attorney; Office of the City Attorney, Oakland,
California; for Defendant-Appellee.

Brendan Darrow and Matthew Siegel, Berkeley,

California, for Amici Curiae League of California
Cities and California State Association of Counties.

Nathaniel P. Bualat, Pilar Stillwater, and Rebecca

Suarez, Crowell & Moring LLP, San Francisco,
California, for Amicus Curiae Western Center on Law
and Poverty.
_________________________________________________
 Appendix A-4

OPINION

R. NELSON, Circuit Judge:

The City of Oakland required the Ballingers to

pay their tenants over $6,000 before the Ballingers
could move back into their own home upon the
expiration of the lease. The Ballingers challenge the
payment as an unconstitutional physical taking under
the Takings Clause. Instead, the requirement to pay
tenants a relocation fee before an owner may move
back into their home is more properly classified as a
wealth-transfer provision but not an unconstitutional
taking. We therefore affirm the dismissal of the
Ballingers’ physical takings, exaction, and seizure
claims.

In September 2016, Lyndsey and Sharon

Ballinger leased their Oakland home for one year
while fulfilling military assignments on the east coast.
After one year, the lease converted to a month-to-
month tenancy.

Under the City of Oakland (“the City”) Municipal

Code, even after a lease has ended and converted to a
month-to-month tenancy, the tenancy may only end if
the landlord has good cause. Oakland, Cal. Mun. Code
§ 8.22.360(A). Ending the tenancy, or “evicting,” for
good cause, includes when a landlord chooses to move
back into her home at the end of the month. Id.
§ 8.22.360(A)(8)–(9). In January 2018, the City
adopted the Uniform Residential Tenant Relocation
Ordinance (“the Ordinance”), which requires
landlords re-taking occupancy of their homes upon the
 Appendix A-5

expiration of a lease to pay tenants a relocation

payment based on rental size, average moving costs,
the duration of the tenants’ occupancy, and whether
the tenants earn a low income, are elderly or disabled,
or have minor children. See id. § 8.22.820. Half the
payment is due upon the tenant’s receipt of the notice
to vacate and the other half upon actual vacation. Id.
§ 8.22.850(D)(1). And the payment need not be spent
on relocation costs. Failing in bad faith to make the
payments allows a tenant to bring an action against
the landlord for injunctive relief, the relocation
payment, attorneys’ fees, and treble damages. Id.
§ 8.22.870(A).

When the Ballingers were reassigned to the Bay

area, they decided to move back into their Oakland
home. The Ballingers gave their tenants sixty days’
notice to vacate the property, paying half the
relocation payment up front and the remainder after
the tenants vacated. In total, the Ballingers paid their
tenants $6,582.40 in relocation fees.

The Ballingers sued the City, bringing facial and

as-applied constitutional challenges under the
Declaratory Judgment Act and 42 U.S.C. § 1983.
Characterizing the relocation payment as a “ransom”
of their home, they claimed that the relocation fee is
an unconstitutional physical taking of their money for
a private purpose and without just compensation.
Alternatively, they claimed that the fee constitutes an
unconstitutional exaction of their Oakland home, and
an unconstitutional seizure of their money under the
Fourth and Fourteenth Amendments.

The district court dismissed each claim under

Federal Rule of Civil Procedure 12(b)(6). It held that
 Appendix A-6

“no precedent supports the Ballingers’ argument that

legislation requiring the payment of money
constitutes a physical taking.” Because “[t]he
Ordinance . . . was generally applicable legislation,”
the district court concluded that it did not give rise to
an actionable exaction claim, and the Ballingers had
not shown the requisite state action for their seizure
claim. The Ballingers appealed.1

II

We review a dismissal under Federal Rule of Civil

Procedure 12(b)(6) de novo, accepting as true all
allegations of material facts. Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1100 n.1, 1102 (9th
Cir. 2008). “Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Id. at 1104.

III

We affirm the district court’s dismissal of the

Ballingers’ taking claim. The Ballingers assert that
the Ordinance effected an unconstitutional physical
taking of their money for a private rather than public
purpose and without just compensation. But we
disagree—even though money can be the subject of a

1 The City argues that because the Ballingers neglected to

include a statement of the issues presented in their opening brief

on appeal, we should dismiss their appeal for failure to comply
with Federal Rule of Appellate Procedure 28(a)(5). See Christian
Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th
Cir. 2010). The Ballingers should have done so, but we see no
reason to dismiss this appeal when the Ballingers’ opening brief
otherwise makes the issues presented very clear.
 Appendix A-7

physical, also called a per se, taking, the relocation fee

required by the Ordinance was a regulation of the
landlord-tenant relationship, not an unconstitutional
taking of a specific and identifiable property interest.
Because there was no taking, we need not address
whether the relocation fee is required for a public
purpose or what just compensation would be. See
Rancho de Calistoga v. City of Calistoga, 800 F.3d
1083, 1093 (9th Cir. 2015) (private takings claim is not
an independent cognizable claim).

The Takings Clause of the Fifth Amendment

provides that “private property” shall not “be taken for
public use, without just compensation.” U.S. Const.,
amend. V; see also Chi., Burlington & Quincy R.R. Co.
v. City of Chicago, 166 U.S. 226, 238–39 (1897)
(incorporating the Takings Clause through the
Fourteenth Amendment). “Whenever a regulation
results in a physical appropriation of property, a per
se taking has occurred.” Cedar Point Nursery v.
Hassid, 141 S. Ct. 2063, 2072 (2021). “[A]ppropriation
means taking as one’s own.” Id. at 2077 (citation and
quotation marks omitted). “Government action that
physically appropriates property is no less a physical
taking because it arises from . . . a regulation (or
statute, or ordinance, or miscellaneous decree).” Id. at
2072. The “essential question . . . is whether the
government has physically taken property for itself or
someone else—by whatever means—or has instead
restricted a property owner’s ability to use his own
property.” Id. We assess physical appropriations
“using a simple, per se rule: The government must pay
for what it takes.” Id. at 2071.
 Appendix A-8

The Supreme Court “has consistently affirmed

that States have broad power to regulate housing
conditions in general and the landlord-tenant
relationship in particular without paying
compensation for all economic injuries that such
regulation entails.” Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 440 (1982).2
For example, “the government may place ceilings on
the rents the landowner can charge, or require the
landowner to accept tenants he does not like, without
automatically having to pay compensation.” Yee v.
City of Escondido, 503 U.S. 519, 529 (1992) (citations
omitted). “Ordinary rent control often transfers
wealth from landlords to tenants by reducing the
landlords’ income and the tenants’ monthly
payments,” and “[t]raditional zoning regulations can
transfer wealth from those whose activities are
prohibited to their neighbors.” Id. The “transfer [of
wealth] in itself does not convert regulation into
physical invasion.” Id. at 530 (challenge to mobile
home rent control should be analyzed as regulatory
taking); see also Com. Builders of N. Cal. v. City of

2 In the past, this court has analyzed regulations of the landlord-

tenant relationship as a regulatory taking rather than a physical

taking. See, e.g., Rancho de Calistoga, 800 F.3d at 1089 n.1 (“The
Supreme Court laid to rest any argument that a mobile home
rent control ordinance constitutes a physical taking . . . .”); MHC
Fin. LP v. City of San Rafael, 714 F.3d 1118, 1126–27 (9th Cir.
2013); Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 (9th
Cir. 2010) (en banc). Those challenges failed. But here, the
Ballingers “rely solely on physical takings law,” and expressly
forego a regulatory takings claim. We therefore do not address
the principles of regulatory takings. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 323–24
(2002) (courts may not apply principles of physical takings claims
to regulatory takings claims).
 Appendix A-9

Sacramento, 941 F.2d 872, 875 (9th Cir. 1991) (every

fee provision cannot be a compensable taking). So
legislative enactments “regulating the economic
relations of landlord and tenants are not per se
takings.” FCC v. Fla. Power Corp., 480 U.S. 245, 252
(1987).

Here, the Ordinance imposes a transaction cost to

terminate a lease agreement. We see little difference
between lawful regulations, like rent control, and the
Ordinance’s regulation of the landlord-tenant
relationship here. Thus, the relocation fee is not an
unconstitutional physical taking—it “merely
regulate[s] [the Ballingers’] use of their land by
regulating the relationship between landlord and
tenant.” Yee, 503 U.S. at 528.3

The Ballingers argue that a taking “does not

become a lesser intrusion simply because it is related
to a commercial transaction” and the “decision to leave
the rental market.” See Horne v. Dep’t of Agric., 576
U.S. 350, 365 (2015) (raisin growers’ decision to be
raisin farmers made federal government’s
confiscation of raisins no less a taking); Loretto, 458
U.S. at 439 n.17 (“[A] landlord’s ability to rent his
property may not be conditioned on his forfeiting the
right to compensation for a physical occupation.”). But

3 Further, “[t]he government effects a physical taking only where

it requires the landowner to submit to the physical occupation” of

his property. Yee, 503 U.S. at 527; see also Fla. Power, 480 U.S.
at 252 (“This element of required acquiescence is at the heart of
the concept of occupation.”). The Ballingers never asserted that
there was a physical occupation of their property. To the
contrary, they invited their tenants to lease their property and
paid the relocation fee. See Yee, 503 U.S. at 532 (citing Fla.
Power, 480 U.S. at 252–53).
 Appendix A-10

“[w]hen a person voluntarily surrenders liberty or

property,” like when the Ballingers chose to rent their
property causing them to pay the relocation fee when
they caused the tenants to relocate, “the State has not
deprived the person of a constitutionally protected
interest.” L.L. Nelson Enters., Inc. v. County of
St. Louis, 673 F.3d 799, 806 (8th Cir. 2012) (citing
Zinermon v. Burch, 494 U.S. 113, 117 n.3 (1990)); see
Yee, 503 U.S. at 527; Fla. Power, 480 U.S. at 252.

Here, the Ballingers voluntarily chose to lease

their property and to “evict” under the Ordinance—
conduct that required them to pay the relocation fee,
which they would not be compelled to pay if they
continued to rent their property. See Yee, 503 U.S. at
527. “A different case would be presented were the
statute, on its face or as applied, to compel a
landowner over objection to rent his property or to
refrain in perpetuity from terminating a tenancy.” Id.
at 528. Here, the Ordinance “is a regulation of [the
Ballingers’] use of their property, and thus does not
amount to a per se taking.” Id. at 532.

Based on the U.S. Supreme Court’s “long-settled

view that property the government could
constitutionally demand through its taxing power can
also be taken by eminent domain,” Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S. 595, 616 (2013), the
relocation fee’s obligation to pay money rather than
real or personal property does not mean that it cannot
be an unconstitutional taking. Even though money is
generally considered fungible, see United States v.
Sperry Corp., 493 U.S. 52, 62 n.9 (1989), money may
still be subject to a per se taking if it is a specific,
 Appendix A-11

identifiable pool of money, see Phillips v. Wash. Legal

Found., 524 U.S. 156, 169–70 (1998). Indeed, the
Supreme Court has held multiple times that money
can be subject to a taking, and these cases show why
the relocation fee here is not one: The Ordinance
“merely impose[s] an obligation on a party to pay
money on the happening of a contingency,” which
happens to be related to a real property interest, but
does not “seize a sum of money from a specific fund.”
McCarthy v. City of Cleveland, 626 F.3d 280, 284 (6th
Cir. 2010) (citing Brown v. Legal Found. of Wash., 538
U.S. 216, 223–24 (2003)).

To begin with, the district court concluded that

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) “is
the law,” so “the obligation to pay money is not a
taking.” Because a majority of justices in Eastern
Enterprises failed to agree to the same rationale, we
reject that anything more than the Eastern
Enterprises holding is binding in this court.

In Eastern Enterprises, the plaintiff challenged a

statute that retroactively imposed obligations to pay
for retired miners’ medical expenses, claiming that
this payment obligation was an unconstitutional
taking of its money and a violation of substantive due
process. 524 U.S. at 514–15, 517. In sum, a four-
Justice plurality held that the payment obligation was
a regulatory taking. Id. at 529 (O’Connor, J., joined by
Rehnquist, C.J., Scalia, and Thomas, JJ.). But five
Justices, split between Justice Kennedy’s concurrence
and a four-Justice dissent, conveyed that the Takings
Clause is implicated only by laws that appropriate
specified and identified property interests. See id. at
 Appendix A-12

540 (Kennedy, J., concurring in the judgment and

dissenting in part); id. at 555 (Breyer, J., joined by
Stevens, Souter, and Ginsburg, JJ., dissenting).

In his concurrence, Justice Kennedy rejected the

regulatory takings claim because there was no
“specific property right or interest . . . at stake” and
the statute did “not appropriate, transfer, or
encumber an estate in land (e.g., a lien on a particular
piece of property), a valuable interest in an intangible
(e.g., intellectual property), or even a bank account or
accrued interest.” Id. at 540–41 (Kennedy, J.,
concurring). Instead, the payment obligation “simply
impose[d] an obligation to perform an act, the
payment of benefits,” and was “indifferent as to how
the regulated entity elects to comply or the property it
uses to do so.” Id. at 540. But he concluded the statute
violated substantive due process and thus concurred
only in the plurality’s holding. Justice Breyer, writing
for the four Justices in dissent, agreed that the
Takings Clause is limited to claims based on “the
operation of a specific, separately identifiable fund of
money,” or “a specific interest in physical or
intellectual property . . . [but not] an ordinary liability
to pay money.” Id. at 554–55 (Breyer, J., dissenting).

So five Justices agreed that mere obligations to

pay money could not constitute a regulatory taking
unless connected to a “specific property right,” but
four of them dissented from the Court’s holding.
Dissenting opinions cannot be considered when
determining the holding of a fractured Supreme Court
decision—only the opinions of those who concurred in
the judgments can be considered. Marks v. United
States, 430 U.S. 188, 193 (1977).
 Appendix A-13

Even then, only an opinion that “can reasonably

be described as a logical subset of the other” is
binding. United States v. Davis, 825 F.3d 1014, 1021–
22 (9th Cir. 2016) (en banc). But neither the plurality
nor Justice Kennedy’s concurrence are a logical subset
of the other since they differed on why the statute was
unconstitutional. Compare E. Enters., 524 U.S. at
522–38 (O’Connor, J., plurality) (unconstitutional
regulatory taking), with id. at 539–47 (Kennedy, J.,
concurring) (substantive due process violation). Thus,
“only the specific result” of Eastern Enterprises, that
the statute at issue was unconstitutional, is binding
in this court. Davis, 825 F.3d at 1022.4

That said, as the district court noted, “all circuits

that have addressed the issue” of the precedential
value of Eastern Enterprises “have uniformly found
that a taking does not occur when the statute in
question imposes a monetary assessment that does
not affect a specific interest in property.” McCarthy,

4 Our prior applications of Eastern Enterprises either accord with

this conclusion, were reversed by the Supreme Court, or did not
reach the issue. See Chevron U.S.A., Inc. v. Bronster, 363 F.3d
846, 852 (9th Cir. 2004) (suggesting Eastern Enterprises is “of no
precedential value outside the specific facts of that case” (citing
Ass’n of Bituminous Contractors v. Apfel, 156 F.3d 1246, 1254–
55 (D.C. Cir. 1998))), rev’d on other grounds sub nom., Lingle v.
Chevron U.S.A., Inc., 544 U.S. 528 (2005); Wash. Legal Found. v.
Legal Found. of Wash., 271 F.3d 835, 854 (9th Cir. 2001) (en
banc) (relying on Eastern Enterprises plurality to hold that
money may only constitute a regulatory taking), aff’d, Brown,
538 U.S. at 235 (but agreeing with dissenters in part); Quarty v.
United States, 170 F.3d 961, 969 (9th Cir. 1999) (assuming
without deciding Eastern Enterprises plurality was binding and
finding no taking had occurred).
 Appendix A-14

626 F.3d at 285 (collecting cases). Indeed, Koontz

appeared to endorse that “the relinquishment of funds
linked to a specific, identifiable property interest”
invoked a per se takings analysis. 570 U.S. at 614. We
hold, as other circuits have, that in certain
circumstances not argued here, money can be the
subject of a taking. But here, the City’s Ordinance
imposes a general obligation to pay money and does
not identify any specific fund of money; therefore, it
does not effectuate an unconstitutional physical
taking.5

By way of example, money can be subject to a

taking when the government procures the interest

5 “[P]hysical takings jurisprudence is ‘as old as the Republic.’”

Cedar Point Nursery, 141 S. Ct. at 2071 (citation omitted).

Because the lack of records of discussion on the meaning of the
Takings Clause, the statements of its author, James Madison,
“thus provide unusually significant evidence about what the
clause was originally understood to mean.” William M. Treanor,
The Original Understanding of the Takings Clause and the
Political Process, 95 Colum. L. Rev. 782, 791 (1995); Akhil Reed
Amar, The Bill of Rights 78 (1998). Generally, Madison thought
a federal constitution would best protect property interests and
other rights. See The Federalist No. 10 (James Madison). One
year after the ratification of the Bill of Rights, Madison wrote
that the same sense of property includes “land, or merchandi[s]e,
or money.” James Madison, Property, Papers 14:266–68 (Mar. 29,
1792), reprinted in The Founders’ Constitution, ch. 16, available
at https://presspubs.uchicago.edu/founders/documents/v1ch16s
23.html. “Government,” he wrote, “is instituted to protect
property of every sort.” Id. “If there be a government then which
prides itself in maintaining the inviolability of property; which
provides that none shall be taken directly even for public use
without indemnification to the owner, and yet . . . violates their
actual possessions, in the labor that acquires their daily
subsistence, . . . such a government is not a pattern for the
United States.” Id.
 Appendix A-15

earned on lawyers’ trust accounts, see Brown, 538 U.S.

at 235; Phillips, 524 U.S. at 160; procures the interest
accrued in interpleader funds, see Webb’s Fabulous
Pharmacies v. Beckwith, 449 U.S. 155, 162 (1980);
seizes ownership of liens, which are the right to
receive money secured by a particular piece of
property, see Armstrong v. United States, 364 U.S. 40,
48 (1960); demands that one pay a debt owed to a third
party to the state itself, see Ware v. Hylton, 3 U.S. (3
Dall.) 199, 245 (1796) (opinion of Chase, J.); Cities
Serv. Co v. McGrath, 342 U.S. 330, 335 (1952); or
seizes money without a court order, see Cedar Point,
141 S. Ct. at 2076 (“We have recognized that the
government can commit a physical taking . . . by
simply ‘enter[ing] into physical possession of property
without authority of a court order.’”); see also
Richard A. Epstein & Eduardo M. Peñalver, The Fifth
Amendment Takings Clause, Nat’l Const. Ctr.,
https://constitutioncenter.org/interactiveconstitution/
interpretation/amendment-v/clauses/634 (“bag full of
cash” is subject to physical taking).

The money in all those cases was taken from

known persons in the form of a specific, identified
property interest to which those persons were already
entitled. See Swisher Int’l v. Schafer, 550 F.3d 1046,
1055 n.6 (11th Cir. 2008).

In contrast, the obligation to pay money in the tax

and government services user fee context is not
generally compensable under the Fifth Amendment
because taxes and user fees are collected in exchange
for government benefits to the payor. See Sperry
Corp., 493 U.S. at 62 n.9 (“artificial” to treat an award
deduction from Iran-United States Claims Tribunal
 Appendix A-16

as a physical taking because “[u]nlike real or personal

property, money is fungible”); Brushaber v. Union
Pac. R. Co., 240 U.S. 1, 24–25 (taxes could constitute
a taking if “the act complained of was so arbitrary as
to constrain to the conclusion that it was not the
exertion of taxation, but a confiscation of property”);
see also Koontz, 570 U.S. at 615 (collecting cases
distinguishing taxes and user fees from money that
can be taken). Thus, when it comes to takings, “[t]he
Constitution . . . is concerned with means as well as
ends.” Horne, 576 U.S. at 362; see also Dickman v.
Comm’r of Internal Rev., 465 U.S. 330, 336 (1984)
(“We have little difficulty accepting the theory that
the use of valuable property—in this case money—is
itself a legally protectible property interest.”).

Here, the Ballingers’ rely on Koontz to argue that

the relocation fee is an unconstitutional taking. But
Koontz cuts against them. The exaction in Koontz
operated on “the direct link between the government’s
demand and a specific parcel of real property,” 570
U.S. at 614. The Ballingers claim that a direct link
exists between the government’s demand for their
money and their real property. We cannot deny that
the relocation fee here is linked to real property, but
no more so than property and estate taxes. Rather
than a mere obligation to pay in relation to the use of
one’s property, the government in Koontz demanded
and specifically identified that it wanted Koontz’s
payment of money in exchange for granting a benefit
to either Koontz’s parcel of land or another identified
parcel of land. Id. at 613 (“[U]nlike Eastern
Enterprises, the monetary obligation burdened
petitioner’s ownership of a specific parcel of land.”). So
the demand for payment in Koontz was “functionally
 Appendix A-17

equivalent to other types of land use exactions” and

amounted to a taking of an interest in the real
property itself. Id. at 612–13 (“In that sense, this case
bears resemblance to our cases holding that the
government must pay just compensation when it
takes a lien—a right to receive money that is secured
by a particular piece of property.”).

Instead, the relocation fee required by the

Ordinance is a monetary obligation triggered by a
property owner’s actions with respect to the use of
their property, not a burden on the property owner’s
interest in the property. It is more akin to the
obligations to pay money that other circuits have held
were not takings, such as

• costs to clean up hazardous waste under the

Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA),
United States v. Alcan Aluminum Corp., 315
F.3d 179, 190 (2d Cir. 2003);

• survivor’s benefits required from previous

employers of coal miners who died from Black
Lung Disease, W.V. CWP Fund v. Stacy, 671
F.3d 378, 387 (4th Cir. 2011);

• fines for traffic offenses caught on municipal

traffic cameras, McCarthy, 626 F.3d at 286;

• quarterly monetary assessments based on

tobacco manufacturers’ market share under
the Fair and Equitable Tobacco Reform Act,
Swisher Int’l, 550 F.3d at 1057; and
 Appendix A-18

• special monetary assessments on domestic

utilities that benefit from facilities that
process environmentally contaminated
uranium, Commonwealth Edison Co. v.
United States, 271 F.3d 1327, 1340 (Fed. Cir.
2001) (en banc) (“Requiring money to be spent
is not a taking of property.” (citation
omitted)).

Unlike the cases that have found a taking of funds

a violation of the Takings Clause, this Ordinance
neither identifies the Ballingers’ $6,582.40 as a parcel
of money it intends to take, nor seeks to seize any
escrow accounts or funds that meet certain criteria.
Thus, the Ballingers’ physical-taking claim was not
“an appropriate vehicle to challenge the power of [a
legislature] to impose a mere monetary obligation
without regard to an identifiable property interest.”
McCarthy, 626 F.3d at 286 (quoting Swisher Int’l, 550
F.3d at 1057) (alteration in original).6

IV

For the same reasons, we disagree with the

Ballingers that the City placed an unconstitutional
condition, called an exaction, on their preferred use of
their Oakland home. Though the Takings Clause
prohibits the government from “deny[ing] a benefit to
a person because he exercises a constitutional right”
or “coercing people into giving [those rights] up” by
imposing unconstitutional conditions on the use of

6 Because we hold that the relocation fee is not a taking, we need

not address the Ballingers’ arguments that the relocation fee is

taking for a private, rather than public, purpose and without just
compensation.
 Appendix A-19

private land, the “predicate for any unconstitutional

conditions claim is that the government could not
have constitutionally ordered the person asserting the
claim to do what it attempted to pressure that person
into doing.” Koontz, 570 U.S. at 604, 612 (citation
omitted). Because the relocation fee here was not a
taking, it cannot have been an unconstitutional
exaction.

The unconstitutional conditions doctrine of the

Takings Clause allows the government to condition
the use of one’s property on agreeing to an exaction, or
the dedication of one’s other property to the public use,
“so long as there is a ‘nexus’ and ‘rough
proportionality’ between the property that the
government demands and the social costs of the
applicant’s proposal.” Id. at 605–06 (quoting Dolan v.
City of Tigard, 512 U.S. 374, 391 (1994), and Nollan
v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987)). In
evaluating the constitutionality of an exaction, we
must balance (1) the vulnerability of “land-use permit
applicants” who can be strongarmed by government
entities with “broad discretion” with (2) legitimate
government interests in “landowners internaliz[ing]
the negative externalities of their conduct.” Id. at 604–
05.

The Supreme Court has limited the scope of

exaction claims to the administrative-conditions
context. E.g., City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 702 (1999) (“[W]e have
not extended the rough-proportionality test of Dolan
beyond the special context of exactions—land-use
decisions conditioning approval of development on the
 Appendix A-20

dedication of property to public use.” (emphasis

added)); Lingle, 544 U.S. at 546 (describing Nollan
and Dolan as “Fifth Amendment takings challenges to
adjudicative land-use exactions”); Koontz, 570 U.S. at
604, 614 (describing Nollan and Dolan as “involv[ing]
a special application” of the unconstitutional
conditions doctrine “when owners apply for land-use
permits,” where “central concern” is “the risk that the
government may use its substantial power and
discretion in land-use permitting” (citation omitted)).
Following the Supreme Court’s lead, we have applied
an exactions analysis only to generally applicable
administrative, not legislative, action. See, e.g.,
McClung v. City of Sumner, 548 F.3d 1219, 1227 (9th
Cir. 2008) (“In comparison to legislative land
determinations, the Nollan/Dolan framework applies
to adjudicative land-use exactions where the
‘government demands that a landowner dedicate an
easement allowing public access to her property as a
condition of obtaining a development permit.’”
(citation omitted)); San Remo Hotel, LP v. San
Francisco City & County, 364 F.3d 1088, 1097 (9th
Cir. 2004).7

7 At least one Justice highlighted his disagreement. See, e.g., Cal.

Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016)
(Thomas J., concurring in denial of certiorari) (“I continue to
doubt that the existence of a taking should turn on the type of
governmental entity responsible for the taking.” (quotation
marks and citation omitted)); Parking Ass’n of Ga. v. City of
Atlanta, 515 U.S. 1116, 1117–18 (1995) (Thomas, J., joined by
O’Connor, J., dissenting in denial of certiorari) (“It is not clear
why the existence of a taking should turn on the type of
governmental entity responsible for the taking. A city council can
take property just as well as a planning commission can.”).
 Appendix A-21

But the doctrine barring unconstitutional

conditions is broader than the exactions context. See
Koontz, 570 U.S. at 604 (collecting cases relating to
different contexts); Stop the Beach Renourishment,
Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 713–14
(2010) (“The Takings Clause . . . is not addressed to
the action of a specific branch or branches. It is
concerned simply with the act, and not with the
governmental actor . . . .”).

Last year, in a now-vacated opinion, we relied on

McClung to reject as an exaction “a general
requirement imposed through legislation, rather than
an individualized requirement to grant property
rights to the public imposed as a condition for
approving a specific property development.” Pakdel v.
City & County of San Francisco, 952 F.3d 1157, 1162
n.4 (9th Cir. 2020) (cleaned up), vacated 5 F.4th 1099
(9th Cir. 2021). However, the Supreme Court invited
us to “give further consideration to [this] claim in light
of [its] recent decision” in Cedar Point Nursery. Pakdel
v. City & County of San Francisco, 141 S. Ct. 2226,
2229 n.1 (2021).

In Cedar Point Nursery, the Court highlighted

that “[t]he essential question is not . . . whether the
government action at issue comes garbed as
regulation (or statute, or ordinance, or miscellaneous
decree).” 141 S. Ct. at 2072. Yet the Court still limited
the exactions context to “[w]hen the government
conditions the grant of a benefit such as a permit,
license, or registration” on giving up a property right.
Id. at 2079. Thus, the Supreme Court has suggested
that any government action, including administrative
and legislative, that conditionally grants a benefit,
 Appendix A-22

such as a permit, can supply the basis for an exaction

claim rather than a basic takings claim. See id. at
2072; see, e.g., Com. Builders of N. Cal., 941 F.2d at
873 (applying exactions analysis to legislative
ordinance imposing a fee to finance low-income
housing in connection with the issuance of permits for
nonresidential development).

Here, the Ballingers claim that the City’s

Ordinance (a legislatively imposed condition) is an
unconstitutional exaction. The district court rejected
their exaction claim as based on a generally applicable
legislative condition when a properly pled exaction
claim can only arise from administrative, not
legislative, conditions.

In light of Pakdel, 141 S. Ct. at 2229 n.1, and

Cedar Point Nursery, 141 S. Ct. at 2072, 2079, we
agree with the Ballingers that “[w]hat matters for
purposes of Nollan and Dolan is not who imposes an
exaction, but what the exaction does,” and the fact
“[t]hat the payment requirement comes from a [c]ity
ordinance is irrelevant.” But the Ballingers miss,
under the Nollan/Dolan framework, that whatever
the government action is, it must condition the grant
of a benefit on an unconstitutional taking. See Dolan,
512 U.S. at 391–92 (exactions where government
bodies “make some sort of individualized
determination that the required dedication [or
condition] is related both in nature and extent to the
impact of the proposed development.”); McClung, 548
F.3d at 1227 (exactions analysis applies to
“determinations conditioning permit approval on the
grant of property rights to the public”). Here, the
 Appendix A-23

Ordinance does not conditionally grant or regulate the

grant of a government benefit, such as a permit, and
therefore does not fall under the unconstitutional-
conditions umbrella.

Lastly, even so, the “starting point to our

analysis” of exactions claims is still whether the
substance of the condition, such as granting an
easement as in Nollan and Dolan, would be a taking
independent of the conditioned benefit. Cedar Point,
141 S. Ct. at 2073; Koontz, 570 U.S. at 612; see Nollan,
483 U.S. at 831; Dolan, 512 U.S. at 384. Here, the
relocation fee is not a compensable taking, so the
relocation fee did not constitute an exaction. We
therefore affirm the dismissal of the Ballingers’
exaction claim.

Finally, we also affirm the dismissal of the

Ballingers’ seizure claim. The Fourth Amendment
applies to searches and seizures in the civil context.
United States v. James Daniel Good Real Prop., 510
U.S. 43, 51 (1993); see also Mapp v. Ohio, 367 U.S. 643,
655 (1961) (incorporating the Fourth Amendment
through the Fourteenth Amendment). To adequately
plead a seizure claim, a plaintiff must allege a
“deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.” 42 U.S.C.
§ 1983. And to establish a deprivation of Fourth
Amendment rights, the Ballingers must allege the
seizure was caused by state action. See United States
v. Jacobsen, 466 U.S. 109, 113 (1984). The Ballingers
claim their tenants were “willful participant[s] in joint
activity with the State or its agents” and that the
Ordinance authorizes a “meaningful interference with
 Appendix A-24

[the Ballingers’] possessory interest in [their]

property.” The district court correctly rejected these
arguments.

A private individual’s actions can only be

considered state action if a “sufficiently close nexus”
makes private action “treat[able] as that of the
[government entity] itself.” Blum v. Yaretsky, 457 U.S.
991, 1004 (1982) (citation omitted). Merely
“authoriz[ing],” “approv[ing,] or acquiesc[ing]” to
private action—such as the “creation or modification
of any legal remedy”—is not enough to show state
action. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 52–53 (1999) (citations omitted). And an “[a]ction
by a private party pursuant to [a] statute, without
something more, [is] not sufficient to justify a
characterization of that party as a ‘state actor.’” Lugar
v. Edmondson Oil Co., 457 U.S. 922, 939 (1982).

The Ballingers have not established a cognizable

theory of state action. The City did not participate in
the monetary exchange between the Ballingers and
their tenants. See Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 164–65 (1978). Neither did it “exercise[ ] coercive
power” over the Ballingers’ tenants or “provide[ ] such
significant encouragement, either overt or covert, that
the [tenants’] choice must in law be deemed to be that
of the State.” Blum, 457 U.S. at 1004. Because the
tenants were not willful participants in joint activity
with the State, they cannot be fairly treated as the
State itself. Cf. Stypmann v. City & County of San
Francisco, 557 F.2d 1338, 1341–42 (9th Cir. 1977).
Nor did the City actively encourage, endorse, or
participate in any wrongful interference by the
tenants with the Ballingers’ money. Cf. Presley v. City
 Appendix A-25

of Charlottesville, 464 F.3d 480, 488 (4th Cir. 2006).

At most, the City was only involved in adopting an
ordinance providing the terms of eviction and
payment. See Sullivan, 526 U.S. at 53. But enacting
the Ordinance of this nature is not enough—entitling
tenants to demand a relocation payment is a “kind of
subtle encouragement . . . no more significant than
that which inheres in [a government entity]’s creation
or modification of any legal remedy.” See id. (emphasis
added). Adopting the Ballingers’ expansive notion of
state action would eviscerate the “essential dichotomy
between public and private acts.” Id. (citation and
quotation marks omitted). Thus, we affirm the district
court’s dismissal of the Ballingers’ seizure claim.8

AFFIRMED.

8 We affirm dismissal of the Ballingers’ facial Fourth Amendment

challenge as well. Outside the First Amendment context, a facial

challenge must prove that a law is “unconstitutional in all of its
applications,” considering only those applications “in which [the
law] actually authorizes or prohibits conduct.” City of Los Angeles
v. Patel, 576 U.S. 409, 418 (2015) (citation omitted). But the
Ballingers’ as-applied seizure claim proves the Ordinance is not
“unconstitutional in all applications,” dooming a facial challenge.
See Bell v. City of Chicago, 835 F.3d 736, 739 (7th Cir. 2016)
(rejecting a facial Fourth Amendment seizure claim as “the
Ordinances’ actual application in [the plaintiffs’] case does not
violate the Fourth Amendment” (cleaned up)); see also Patel, 576
U.S. at 444–45 (Alito, J., dissenting) (questioning whether facial
Fourth Amendment claims are ever viable given that
“reasonableness . . . is pre-eminently the sort of question which
can only be decided in the concrete factual context of an
individual case” (citation omitted)).
 Appendix B-1

Filed Aug. 2, 2019

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LYNDSEY Case No. 18-cv-07186-HSG

BALLINGER, et al.,
ORDER GRANTING
Plaintiffs, MOTION TO DISMISS

v. Re: Dkt. No. 32

CITY OF OAKLAND,

Defendant.

Plaintiffs Lyndsey and Sharon Ballinger brought

this challenge to Defendant City of Oakland’s Uniform
Residential Tenant Relocation Ordinance, under
which they were required to pay their tenants nearly
$7,000 to move back into their Oakland home. The
City of Oakland moved to dismiss. See Dkt. No. 32.
The Court finds that the Ballingers have not pled a
cognizable legal theory and therefore GRANTS the
City’s motion without leave to amend.

I. BACKGROUND

The Court begins by summarizing the relevant

City of Oakland ordinances before turning to the
Ballingers’ allegations.
 Appendix B-2

A. City of Oakland Ordinances

In 2003, the City of Oakland passed the Just

Cause for Eviction Ordinance, which prohibits
landlords from evicting their tenants without cause.
See Oakland, Cal., Mun. Code (“OMC” or “Code”)
§ 8.22.300–390.1 The City Council found that Oakland
had a “prolonged affordable housing crisis” and that
similar good cause protections in neighboring cities
(such as San Francisco, Berkeley, and Hayward)
“have aided community stability and reduced urban
problems associated with arbitrary disruption of
stable households.” OMC § 8.22.300. That ordinance
specifies what constitutes good cause for eviction,
such as when a tenant fails to pay rent or violates a
material term of the lease. See OMC § 8.22.360.A.1–2.
In addition, two categories of permissible no-fault
evictions (as defined in the ordinance) are relevant to
this lawsuit.2 First, a tenant may be evicted if the
“owner of record seeks in good faith, without ulterior
reasons and with honest intent, to recover possession
of the rental unit for his or her occupancy as a

1 All OMC provisions cited in this order are included in Exhibit

A to the City’s Request for Judicial Notice, see Dkt. No. 33
(“RJN”), and are also available online at https://library.
municode.com/ca/oakland/codes/code_of_ordinances. Because
“[m]unicipal ordinances are proper subjects for judicial notice,”
Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir.
2007), and the Ballingers do not oppose the request, see Opp. at
1 n.1, the Court takes judicial notice of the OMC.
2 Another category allows an owner to withdraw a property from
the rental market in accordance with California’s Ellis Act. See
OMC § 8.22.360.A.11. The Ballingers’ original complaint
contended that Oakland had violated the Ellis Act, see Compl.,
Dkt. No. 1 ¶¶ 99–103, but the amended complaint dropped that
legal theory.
 Appendix B-3

principal residence where he or she has previously

occupied the rental unit as his or her principal
residence and has the right to recover possession for
his or her occupancy as a principal residence under a
written rental agreement with the current tenants.”
OMC § 8.22.360.A.8. Second, a tenant may be evicted
if the “owner of record seeks in good faith, without
ulterior reasons and with honest intent, to recover
possession for his or her own use and occupancy as his
or her principal residence.” OMC § 8.22.360.A.9.

On March 1, 2016, the Oakland City Council

adopted Ordinance Number 13358, which requires
landlords that evict tenants when withdrawing a unit
from the rental market under the Ellis Act to make a
relocation payment to the evicted tenants. See RJN
Ex. B; see also OMC § 8.22.450(A).

On January 16, 2018, the Oakland City Council

adopted the ordinance at issue in this lawsuit—the
Uniform Residential Tenant Relocation Ordinance
(“the Ordinance”). See First Amended Complaint
(“FAC”), Dkt. No. 29-1 Ex. A; see also OMC § 8.22.800–
870. The City Council found that “all major California
rent-controlled jurisdictions surveyed . . . require
relocation payments for no-fault evictions” and that
evicted tenants “face displacement and great
hardship” and “are forced to incur substantial costs
related to new housing.” See FAC Ex. A at 2.
Therefore, the Ordinance extended the relocation
payment program established by Ordinance Number
13358 to other no-fault evictions, including owner
move-in evictions and condominium conversions. See
id. The Ordinance set the uniform relocation payment
for qualifying no-fault evictions at $6,500 per unit for
 Appendix B-4

studios and one-bedroom apartments, $8,000 per unit

for two bedroom apartments, and $9,875 per unit for
apartments with three or more bedrooms. See OMC
§ 8.22.820.A. These amounts were set to increase
annually based on the Consumer Price Index
adjustment. OMC § 8.22.820.D. Under the Ordinance,
a tenant who was ultimately evicted would be eligible
for one-third of the uniform relocation payment upon
move-in, two-thirds of the uniform relocation payment
after having lived in the unit for one year, and the
entire amount after two years of occupancy. OMC
§ 8.22.850.C.

B. The Ballingers’ Allegations

Lyndsey and Sharon Ballinger live with their two

children in a three-bedroom home on MacArthur
Boulevard in Oakland. See FAC ¶¶ 6, 22–23. Both
Ballingers are members of the military: Sharon is a
nurse practitioner currently stationed at Travis Air
Force Base and Lyndsey is transitioning from the D.C.
Air National Guard to a part-time role in the
California Air National Guard. Id. ¶ 22. In 2015, the
Ballingers were both active duty personnel in the
United States Air Force and received orders to
transfer to the Washington, D.C. area. Id. ¶ 24.
Because they intended to return to Oakland following
their assignment in Washington, they “decided to
temporarily rent their house while on duty.” Id. ¶ 25.

The Ballingers leased their MacArthur Boulevard

home for one year, beginning on September 13, 2016.
Id. ¶ 26; see also id. Ex. C (lease agreement). After the
one-year lease expired, it would convert to a month-
to-month tenancy. Id. ¶ 26. Because Oakland had not
yet passed the Ordinance, the lease “did not anticipate
 Appendix B-5

. . . a payment requirement, nor did it specifically

acknowledge that the Ballingers intended to return to
the home and use it as their primary residence.” Id.
¶ 27.

In late 2017, the Ballingers learned that they

would be reassigned to the Bay Area. Id. ¶ 28. The
following March, the Ballingers gave their tenants
sixty days’ notice to vacate the MacArthur Boulevard
house. Id. ¶ 29. Pursuant to the Ordinance, the
Ballingers informed their tenants of their right to a
$6,582.40 relocation payment and paid them half that
amount. Id. ¶¶ 29–30. When their tenants vacated the
house in late April 2018, the Ballingers paid them the
remaining $3,291.20 required under the Ordinance.
Id. ¶¶ 31–32. However, the Ordinance forced the
Ballingers to make the relocation payment “before the
tenants claimed or incurred any relocation costs and
without any means to verify how or where they would
spend the money.” Id. ¶ 33.

C. The Ballingers Bring Suit

The Ballingers brought suit against the City of

Oakland on November 28, 2018. See Dkt. No. 1. They
filed the FAC on February 26, 2019, asserting six
causes of action: (1) a facial Takings Clause claim for
physical taking of private property for a private
purpose, FAC ¶¶ 43–53; (2) facial and as-applied
claims for unconstitutional exaction of private
property, id. ¶¶ 54–64; (3) an as-applied claim for an
uncompensated and unconstitutional physical taking,
id. ¶¶ 65–73; (4) facial and as-applied claims for an
unreasonable seizure in violation of the Fourth
Amendment, id. ¶¶ 74–84; (5) an as-applied claim for
violation of due process, id. ¶¶ 85–95; and (6) a claim
 Appendix B-6

for unconstitutional interference with the obligation

of contract, id. ¶¶ 96–104. The Ballingers seek a
declaratory judgment, permanent injunction,
damages, fees, and costs. See id. (Relief Sought).

D. Oakland Moves to Dismiss

Oakland moved to dismiss the amended

complaint on March 12, 2019. See Dkt. No. 32 (“Mot.”).
The Ballingers opposed on March 25, see Dkt. No. 34
(“Opp.”), and Oakland replied on April 2, see Dkt. No.
35 (“Reply”). The Court held a hearing on the motion
on April 11, 2019. See Dkt. No. 36 (minute entry).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that

a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief[.]” A defendant may move to dismiss a complaint
for failing to state a claim upon which relief can be
granted under Federal Rule of Civil Procedure
12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate
only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal
theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521
F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
12(b)(6) motion, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is facially plausible when a plaintiff pleads
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
 Appendix B-7

In reviewing the plausibility of a complaint,

courts “accept factual allegations in the complaint as
true and construe the pleadings in the light most
favorable to the nonmoving party.” Manzarek v. St.
Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th
Cir. 2008). Nonetheless, Courts do not “accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In re
Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
2008). And even where facts are accepted as true, “a
plaintiff may plead [him]self out of court” if he
“plead[s] facts which establish that he cannot prevail
on his . . . claim.” Weisbuch v. Cty. of Los Angeles, 119
F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and
citation omitted).

If dismissal is appropriate under Rule 12(b)(6), a

court “should grant leave to amend even if no request
to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the
allegation of other facts.” Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (quotation marks and
citation omitted).

III. DISCUSSION

Oakland moves to dismiss all six of the Ballingers’

causes of action, as well as their requests for
injunctive and declaratory relief. The Court begins
with the Ballingers’ three Takings Clause causes of
action before turning to their other constitutional
causes of action.
 Appendix B-8

A. Takings Clause Claims

The Takings Clause of the Fifth Amendment

provides that “[n]or shall private property be taken for
public use, without just compensation.” U.S. Const.
amend. V. A person who has suffered a taking at the
hands of a local government may bring a claim in
federal court under 42 U.S.C. § 1983 to obtain just
compensation. See Knick v. Twp. of Scott, 139 S. Ct.
2162, 2172 (2019).

The Supreme Court has drawn a distinction

between two types of takings: physical takings and
regulatory takings. See Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321
(2002). With respect to physical takings, the Fifth
Amendment’s “plain language requires the payment
of compensation whenever the government acquires
private property for a public purpose, whether the
acquisition is the result of a condemnation proceeding
or a physical appropriation.” Id. The same holds true
for “total regulatory takings,” where the government
“seeks to sustain regulation that deprives land of all
economically beneficial use.” Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1026–27 (1992). By contrast,
the Fifth Amendment “contains no comparable
reference to regulations that prohibit a property
owner from making certain uses of her private
property.” Tahoe-Sierra, 535 U.S. at 321–22. Thus, a
challenge to a regulatory taking requires “essentially
ad hoc, factual inquiries.” Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 124 (1978). The
government need compensate for a regulatory taking
“only if considerations such as the purpose of the
regulation or the extent to which it deprives the owner
 Appendix B-9

of the economic use of the property suggest that the

regulation has unfairly singled out the property owner
to bear a burden that should be borne by the public as
a whole.” Yee v. City of Escondido, 503 U.S. 519, 523
(1992); see also Pa. Coal Co. v. Mahon, 260 U.S. 393,
415 (1922) (“The general rule at least is that while
property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a
taking.”). Given the “longstanding distinction between
acquisitions of property for public use, on the one
hand, and regulations prohibiting private uses, on the
other,” the Supreme Court has warned that it is
“inappropriate to treat cases involving physical
takings as controlling precedents for the evaluation of
a claim that there has been a ‘regulatory taking,’ and
vice versa.” Tahoe-Sierra, 535 U.S. at 323.

At first glance, this case would seem to fit within

the regulatory taking category. After all, the
Ballingers challenge a city ordinance that regulates
how they make use of their property. But that is not
the theory the Ballingers have chosen to pursue.3
Rather, according to the Ballingers, the Ordinance is
an unconstitutional physical taking because it forces
them to “turn over private funds to other private
persons.” FAC ¶ 45; see also Opp. at 4. Because the
“plaintiff is the master of the complaint,” Caterpillar
Inc. v. Williams, 482 U.S. 386, 398–99 (1987), the
Court will analyze their claim as pled.

3 In fact, the Ballingers dropped their regulatory taking claim

when they filed the FAC. See Compl., Dkt. No. 1 ¶¶ 65–72.
 Appendix B-10

i. Physical Taking for Private Purpose

The Ballingers’ first cause of action asserts that

the Ordinance, on its face, commands a physical
taking of private property for a private purpose, in
violation of the Fifth Amendment. See FAC ¶¶ 43–53.
The City contends that this cause of action must be
dismissed “because it does not state an independent
claim, but rather is a redundant attempt to challenge
the issue of whether the Ordinance serves a public
purpose.” Mot. at 6. Oakland relies on Rancho de
Calistoga v. City of Calistoga, in which the Ninth
Circuit held that a “‘private takings claim’ cannot
serve as an independent means to challenge an
alleged regulatory taking” but instead “must function
as part of the larger regulatory takings claim.” See 800
F.3d 1083, 1092 (9th Cir. 2015); see also MHC Fin.
Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1129
n.5 (9th Cir. 2013) (assuming without deciding that
regulatory private taking claim was cognizable,
despite being aware of no court that has ever
recognized such a claim). The Ballingers assert that
Rancho does not apply, because it was a regulatory
takings case, and they are asserting a physical taking
of their property. Opp. at 4.

The Court agrees that Rancho’s limitation does

not apply to the Ballingers’ physical taking claims.
The Supreme Court has cautioned that courts should
“not apply . . . precedent from the physical takings
context to regulatory takings claims.” Tahoe-Sierra,
535 U.S. at 323–24. And in a challenge to a physical
taking, a plaintiff may assert that property was taken
for a private purpose in violation of the Fifth
Amendment. See Kelo v. City of New London, 545 U.S.
 Appendix B-11

469, 477 (2005) (noting that “it has long been accepted
that the sovereign may not take the property of A for
the sole purpose of transferring it to another private
party B, even though A is paid just compensation”);
Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984)
(“A purely private taking could not withstand the
scrutiny of the public use requirement; it would serve
no legitimate purpose of government and would thus
be void.”). The Court notes that the term “public use”
is construed broadly, to “afford[ ] legislatures broad
latitude in determining what public needs justify the
use of the takings power.” Kelo, 545 U.S. at 483. But
ultimately the Court need not—and, practically
speaking, cannot—decide whether there was a valid
public use, because it concludes that there was no
taking. Accordingly, the Court GRANTS the motion
to dismiss the first cause of action.

ii. Unconstitutional Exaction of Private

Property

In their second cause of action, the Ballingers

assert that the Ordinance is an unconstitutional
exaction of private property because it conditions the
exercise of their right to regain possession of their
property on paying their tenants a relocation stipend.
See FAC ¶¶ 55–57. Oakland argues that this claim
must be dismissed because the exaction analysis does
not apply, and even if it did, the Ordinance satisfies
the constitutional requirements.4 The Court begins

4 Oakland also argued that the Ballingers’ claim “is not ripe for

adjudication because [they] do not allege that they have

exhausted state law procedures for obtaining compensation,”
Mot. at 8, as was required by Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473
 Appendix B-12

with an overview of the unconstitutional exactions

doctrine before turning to its applicability here.

a. Unconstitutional Exactions

The “unconstitutional conditions doctrine” exists

to “vindicate[ ] the Constitution’s enumerated rights”
by ensuring that “the government may not deny a
benefit to a person because he exercises a
constitutional right.” Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595, 604 (2013) (internal
quotation omitted). One “special application” of this
general principle is the exactions doctrine, which
exists to “protect[ ] the Fifth Amendment right to just
compensation for property the government takes
when owners apply for land-use permits.” Id.

The modern exactions doctrine was first

articulated in Nollan v. California Coastal
Commission, 483 U.S. 825 (1987). There, the
California Coastal Commission told the Nollans that
it would grant them a development permit to rebuild
their oceanfront home only if they created a public
easement so that beachgoers would have continued
access to the shore. Id. at 828–29. The Supreme Court
reaffirmed that “land-use regulation does not effect a
taking if it ‘substantially advance[s] legitimate state
interests’ and does not ‘den[y] an owner economically
viable use of his land.’” Id. at 834 (alterations in
original) (quoting Agins v. Tiburon, 447 U.S. 255, 260

U.S. 172, 195 (1985). Since this motion was submitted, the
Supreme Court overturned Williamson County. See Knick, 139 S.
Ct. at 2179. Thus, failure to exhaust no longer creates a
prudential barrier to federal court adjudication and the Court
will proceed to the merits.
 Appendix B-13

(1980)). However, the Court found that conditioning

the permit on the creation of a public easement lacked
a nexus with the original purpose of the building
restriction, which had been to protect visual access to
the beach. See Nollan, 483 U.S. at 837. Therefore, the
condition was not a valid land-use regulation but
rather an attempt to advance state interests without
compensation, which amounted to an unconstitutional
exaction. See id. at 841–42.

Seven years later, in Dolan v. City of Tigard, the

Supreme Court considered a challenge to the city’s
attempt to condition approval of a redevelopment
permit on the property owner dedicating roughly 10%
of her property to an improved floodplain and a
pedestrian and bicycle path. See 512 U.S. 374, 379–80
(1994). The Court held this permit condition to be an
unconstitutional exaction, because the city had failed
to show a “rough proportionality,” meaning an
“individualized determination that the required
dedication is related both in nature and extent to the
impact of the proposed development.” Id. at 391.

Most recently, in Koontz, the Supreme Court

identified “the central concern of Nollan and Dolan:
the risk that the government may use its substantial
power and discretion in land-use permitting to pursue
governmental ends that lack an essential nexus and
rough proportionality to the effects of the proposed
new use of the specific property at issue, thereby
diminishing without justification the value of the
property.” 570 U.S. at 614. There, the Court held that
the exactions doctrine prohibited the government
from making “[e]xtortionate demands for property,”
meaning that a property owner could sue when the
 Appendix B-14

government denied a permit for refusing to accept its

conditions. See id. at 606–07. In addition, the Court
held that monetary exactions—a requirement that a
property owner spend money, rather than give up a
property interest—were subject to the nexus and
rough proportionality requirements. Id. at 612.

b. Applicability of Exaction
Framework

Oakland contends that the Ordinance cannot be

analyzed under the exaction framework because no
property was transferred to the City and because
generally applicable legislation is not subject to the
exaction analysis. See Mot. at 8–9. The Court
considers each argument in turn.

1. Transfer of Property
Interest

According to Oakland, the exaction framework

does not apply, because the “Ordinance works no
transfer of a property interest from Plaintiffs to the
City.” Mot. at 9. The Court does not find the analysis
nearly so simple and declines to rule on this ground.

The Supreme Court has made clear that when the

government takes physical possession of private
property, there is a taking. See Koontz, 570 U.S. at 615
(noting that policy that demanded a “transfer [of] an
interest in property from the landowner to the
government . . . would amount to a per se taking
similar to the taking of an easement or a lien”); see
also Tahoe-Sierra, 535 U.S. at 322 (“When the
government physically takes possession of an interest
in property for some public purpose, it has a
 Appendix B-15

categorical duty to compensate the former owner

. . . .”). But “statutes regulating the economic relations
of landlords and tenants are not per se takings.” FCC
v. Fla. Power Corp., 480 U.S. 245, 252 (1987). And the
California Supreme Court has determined that
Nollan and Dolan apply only when the government
requires a “property owner [to] convey some
identifiable property interest.” Cal. Bldg. Indus. Ass’n
v. City of San Jose, 351 P.3d 974, 990 (Cal. 2015).

Despite the City’s characterizations, none of the

cases it cites stand for the principle that the property
must necessarily be transferred to the government to
constitute a taking. After all, in Nollan, it was the
general public, not the government, that benefitted
from the creation of a public easement to increase
beach access. See 483 U.S. at 837. Similarly, the
Ballingers have at least a plausible argument that
although no money is transferred to the government,
it is still put to public use because it helps to reduce
rental costs and prevent displacement. Moreover, Kelo
makes clear that the Takings Clause prohibits
physical takings of real property for purely private
purposes. See 545 U.S. at 477. But the Court
ultimately need not resolve this dispute because it
finds that the Ordinance cannot constitute a physical
taking for the simpler reason that it is generally
applicable legislation.

2. Generally Applicable
Legislation

Alternatively, Oakland contends that “generally-

applicable legislation is not subject to an exaction
analysis.” Mot. at 9. The Court agrees, because the
exaction doctrine exists to prevent the government
 Appendix B-16

from using its coercive power to demand

unconstitutional conditions in adjudicative settings,
not to impede the enforcement of generally applicable
laws. See Koontz, 570 U.S. at 614 (noting that “direct
link between the government’s demand and a specific
parcel of real property” led to “the risk that the
government may use its substantial power and
discretion in land-use permitting” to exact
unconstitutional conditions).

In McClung v. City of Sumner, the Ninth Circuit

considered a challenge to a city ordinance requiring
that all new developments include storm drain pipes
at least 12 inches in diameter. See 548 F.3d 1219, 1227
(9th Cir. 2008). The court applied a Penn Central
regulatory takings analysis, after concluding that the
Nollan/Dolan framework applied only to
“adjudicative, individual determinations conditioning
permit approval on the grant of property rights to the
public” and not “general land use regulations.” Id. It
noted that extending Nollan/Dolan would mean
“subject[ing] any regulation governing development to
higher scrutiny and raise the concern of judicial
interference with the exercise of local government
police powers.” Id. at 1228.

The Ballingers argue that McClung does not

apply because “it was not clear that the restriction at
issue was actually an exaction, rather than a standard
land use regulation.” Opp. at 12. Perhaps—but the
same is true here. To be sure, one court in this district
has held that the Nollan/Dolan exaction framework
applies to a city ordinance requiring a monetary
payment before an owner may withdraw a housing
unit from the rental market. See Levin v. City & Cty.
 Appendix B-17

of San Francisco, 71 F. Supp. 3d 1072, 1082–83 (N.D.

Cal. 2014). In so holding, Judge Breyer found that
“Koontz abrogated McClung’s holding that Nollan/
Dolan does not apply to monetary exactions, which is
intertwined with and underlies McClung’s
assumptions about legislative conditions.” Id. at 1083
n.4.

But this Court finds more persuasive Judge

Chhabria’s conclusion that Koontz did not overrule
McClung. See Bldg. Indus. Ass’n–Bay Area v. City of
Oakland, 289 F. Supp. 3d 1056, 1058 (N.D. Cal. 2018).
Judge Chhabria noted that “the Ninth Circuit and the
California Supreme Court have expressly stated that
a development condition need only meet the
requirements of Nollan and Dolan if that condition is
imposed as an ‘individual, adjudicative decision.’” Id.
(quoting McClung, 548 F.3d at 1227; citing Ehrlich v.
City of Culver City, 911 P.2d 429, 447 (Cal. 1996)). As
noted in Building Industry Association, the “exactions
doctrine . . . has historically been understood as a
means to protect against abuse of discretion by land-
use officials with respect to an individual parcel[ ] of
land, and Koontz itself spoke of it in those terms.” Id.
at 1058–59. Limiting the exactions doctrine to
adjudicative decisions makes sense, because it is in
this context that the government can most easily use
its considerable power and discretion over permitting
to extract concessions from landowners when it would
otherwise be required to pay just compensation.

By contrast, property owners may exercise their

political power to oppose generally applicable
legislation that regulates their property in a manner
that they view as burdensome or unfair. See San Remo
 Appendix B-18

Hotel L.P. v. City & Cty. of San Francisco, 41 P.3d 87,

105 (Cal. 2002) (“While legislatively mandated fees do
present some danger of improper leveraging, such
generally applicable legislation is subject to the
ordinary restraints of the democratic political
process.”); see also Bi-Metallic Inv. Co. v. State Bd. of
Equalization, 239 U.S. 441, 445 (1915) (Holmes, J.)
(“General statutes within the state power are passed
that affect the person or property of individuals,
sometimes to the point of ruin, without giving them a
chance to be heard. Their rights are protected in the
only way that they can be in a complex society, by
their power, immediate or remote, over those who
make the rule.”). Local governments frequently pass
laws that alter the value of property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419,
440 (1982) (noting that the Supreme Court “has
consistently affirmed that States have broad power to
regulate housing conditions in general and the
landlord-tenant relationship in particular without
paying compensation for all economic injuries that
such regulation entails” and collecting cases). A
system in which every city ordinance was subject to
an unconstitutional exaction challenge would be
unworkable.

In sum, although it may be true that “lower courts

have divided over whether the Nollan/Dolan test
applies in cases where the alleged taking arises from
a legislatively imposed condition rather than an
administrative one,” Cal. Bldg. Indus. Ass’n v. City of
San Jose, 136 S. Ct. 928 (2016) (Thomas, J.,
concurring in denial of certiorari), the Ninth Circuit
has provided the answer for this Court. The
Ordinance did not constitute an unconstitutional
 Appendix B-19

exaction because it was generally applicable

legislation, meaning that the Ballingers’ exaction
claim fails as a matter of law. Accordingly, the Court
need not engage in the comparatively fact-intensive
analysis of determining whether there was a nexus
and rough proportionality.

* * *

The Court finds that the Ballingers have not, and

cannot, plead an unconstitutional exaction claim
based on the Ordinance and thus GRANTS the
motion to dismiss this cause of action.

iii. Physical Taking

In their third cause of action, the Ballingers

contend that the Ordinance is “an unconstitutional
physical taking of property as applied to Plaintiffs,”
because it forces them to transfer money to their
tenants or otherwise “face severe financial penalties.”
See FAC ¶ 67–70. The City argues that this cause of
action must be dismissed because the Ordinance’s
“requirement that money transfer between two
private parties does not create a physical taking of
that money.” Mot. at 14–16.5

The “classic taking” is one “in which the

government directly appropriates private property for
its own use,” Tahoe-Sierra, 535 U.S. at 324 (internal
alteration and quotation omitted), such as when the
government requires landlords to allow the

5 Oakland also argued that the Ballingers failed to exhaust state-

law procedures for obtaining compensation, Mot. at 12, but the

ripeness doctrine was overruled by Knick, 139 S. Ct. at 2179.
 Appendix B-20

installation of television cables on buildings, Loretto,

458 U.S. at 421. The constitutional protection against
per se takings without just compensation applies
equally to the physical appropriation of personal
property as it does to real property. See Horne v. Dep’t
of Agric., 135 S. Ct. 2419, 2426–27 (2015) (“The
Government has a categorical duty to pay just
compensation when it takes your car, just as when it
takes your home.”).

But no precedent supports the Ballingers’

argument that legislation requiring the payment of
money constitutes a physical taking, triggering the
just compensation requirement. To the contrary, a
plurality of Justices in Eastern Enterprises v. Apfel
agreed that the Coal Act’s creation of an obligation to
pay money to fund the health care costs of retired
miners did not constitute a physical taking. See 524
U.S. 498, 540 (1998) (Kennedy, J., concurring) (“[The
Coal Act] does not operate upon or alter an identified
property interest . . . . The law simply imposes an
obligation to perform an act, the payment of benefits.
. . . To call this sort of governmental action a taking as
a matter of constitutional interpretation is both
imprecise and, with all due respect, unwise.”); id. at
554 (Breyer, J., dissenting) (“The ‘private property’
upon which the [Takings] Clause traditionally has
focused is a specific interest in physical or intellectual
property. . . . This case involves not an interest in
physical or intellectual property, but an ordinary
liability to pay money, and not to the Government, but
to third parties.”). The courts of appeal that have
considered this question have held that Eastern
Enterprises established that “the mere imposition of
an obligation to pay money does not give rise to a
 Appendix B-21

claim under the Takings Clause.” W. Va. CWP Fund

v. Stacy, 671 F.3d 378, 387 (4th Cir. 2011); see also
Commonwealth Edison Co. v. United States, 271 F.3d
1327, 1339 (Fed. Cir. 2001) (finding that “five justices
of the Supreme Court in Eastern Enterprises agreed
that regulatory actions requiring the payment of
money are not takings”). This Court agrees that
Eastern Enterprises is the law: the obligation to pay
money is not a taking. See Banks v. Cty. of San Mateo,
No. 16-CV-04455-YGR, 2017 WL 3434113, at *13
(N.D. Cal. Aug. 10, 2017) (noting lack of precedent in
the Ninth Circuit and following Eastern Enterprises to
find that “the charging of fees does not constitute a
violation of the Takings Clause”).

Nor has the holding of Eastern Enterprise been

altered by subsequent authority. Koontz held only
that monetary exactions in the permitting process
were subject to Nollan/Dolan scrutiny because they
burdened the ownership of an identifiable parcel of
land. See 570 U.S. at 613–14. But it did not bring all
general legislation requiring the transfer of money
within the realm of the Takings Clause. The
Ballingers also point to Horne, in which the Supreme
Court held that “a governmental mandate to
relinquish specific, identifiable property as a
‘condition’ on permission to engage in commerce
effects a per se taking.” See 135 S. Ct. at 2430. But
money is not specific, identifiable property. Rather,
“[u]nlike real or personal property, money is fungible.”
United States v. Sperry Corp., 493 U.S. 52, 62 n.9
(1989). And just because an ordinance mandates the
transfer of wealth, that “does not convert regulation
into physical invasion.” Yee, 503 U.S. at 530. To hold
otherwise would make it impossible for state and local
 Appendix B-22

governments to exercise their “broad power to

regulate housing conditions in general and the
landlord-tenant relationship in particular without
paying compensation for all economic injuries that
such regulation entails.” Loretto, 458 U.S. at 440.
Finally, it is difficult to envision how exactly the City
of Oakland would pay just compensation for an
ordinance requiring the payment of money between
two private parties.

The Court finds that the Ballingers’ physical

taking claim is not cognizable and therefore GRANTS
the motion to dismiss the third cause of action.

B. Fourth Amendment Seizure

The Ballingers’ fourth cause of action asserts that

the Ordinance constitutes an unreasonable seizure of
their money and real property. See FAC ¶¶ 74–84. The
City contends that this cause of action must be
dismissed because “[r]egulation of private activity is
not state action,” and even if the Fourth Amendment
were applicable, the seizure would not be
unreasonable. See Mot. at 17.

Under the Fourth Amendment, a seizure “occurs

when there is some meaningful interference with an
individual’s possessory interests in that property.”
Soldal v. Cook Cty., 506 U.S. 56, 61 (1992) (internal
quotation omitted). Though most familiar in the
criminal context, the Fourth Amendment’s
protections also apply “in the civil context.” United
States v. James Daniel Good Real Prop., 510 U.S. 43,
51 (1993). But the Constitution constrains only state
action. Blum v. Yaretsky, 457 U.S. 991, 1003 (1982).
And “state action requires both an alleged
 Appendix B-23

constitutional deprivation caused by the exercise of

some right or privilege created by the State or by a
rule of conduct imposed by the State or by a person for
whom the State is responsible, and that the party
charged with the deprivation must be a person who
may fairly be said to be a state actor.” Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal
quotations omitted).

In the Ballingers’ view, “the Ordinance forces the

Ballingers and others to choose between one of two
City-authorized seizures for tenant benefit—your
home or your money—or face substantial penalties.”
Opp. at 16. And because the City has created a “catch-
22 seizure situation,” the logic goes, it is subject to the
constraints of the Fourth Amendment. See id.

Even assuming for the sake of argument that the

Ballingers have alleged a seizure of either their house
or money, they have not met the preliminary
requirement of alleging that a state actor caused the
deprivation. The Ballingers cite a Fourth Circuit case,
Presley v. City of Charlottesville, for the proposition
that the state action requirement is met because the
“City authorized and compelled a seizure of money by
third parties.” Opp. at 15. In Presley, trespasses to
land committed by private citizens were attributed to
the city because it knowingly published an erroneous
map that encouraged the public to use a hiking trail
that trespassed through the plaintiff’s property. See
464 F.3d 480, 487–88 (4th Cir. 2006). Here, by
contrast, the only state action is the passage of the
Ordinance requiring the payment of money to tenants
who are evicted for no fault of their own. But the
“subtle encouragement” of passing a law “is no more
 Appendix B-24

significant than that which inheres in the State’s

creation or modification of any legal remedy,” and
finding it to be state action would destroy the
“essential dichotomy between public and private acts.”
Am. Mfrs., 526 U.S. at 53 (internal quotation omitted).
The City’s mere authorization, as opposed to
encouragement, is not state action. See Am. Mfrs., 526
U.S. at 52; Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
164–66 (1978) (holding that actions by private actors
taken pursuant to state statute are not state action).

Accordingly, because the Ballingers have not

alleged a constitutional deprivation at the hands of a
state actor, the Ballingers’ Fourth Amendment claim
fails as a matter of law and the Court GRANTS the
motion to dismiss this cause of action.

C. Due Process Violation

In their fifth cause of action, the Ballingers assert

that the Ordinance does not rationally advance any
legitimate governmental interest and is arbitrary,
particularly because of its retroactive nature, which
violates the Fourteenth Amendment’s guarantee of
due process. See FAC ¶¶ 85–95. The City moves to
dismiss, asserting that the Ordinance is not
retrospective and that it even if it was, it survives
rational basis review. See Mot. at 17–20.6

A “regulation that fails to serve any legitimate

governmental objective may be so arbitrary or

6 In its opening brief, the City also argued that “the due process

claim is subsumed by the Takings Clause.” Mot. at 17. In

response, the Ballingers clarify that they are bringing a
substantive due process claim, Opp. at 17, which the City agrees
is not subsumed by the Takings Clause, Reply at 12.
 Appendix B-25

irrational that it runs afoul of the Due Process

Clause.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,
542 (2005). “To constitute a violation of substantive
due process, the alleged deprivation must ‘shock the
conscience and offend the community’s sense of fair
play and decency.’” Sylvia Landfield Tr. v. City of Los
Angeles, 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting
Marsh v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th
Cir. 2012)). A law is not retroactive just because it
“upsets expectations based in prior law,” but only if it
“attaches new legal consequences to events completed
before its enactment.” Landgraf v. USI Film Prods.,
511 U.S. 244, 269–70 (1994). But even “[r]etrospective
economic legislation need only survive rational basis
review in order to pass constitutional muster.” Gadda
v. State Bar of Cal., 511 F.3d 933, 938 (9th Cir. 2007);
see also Gen. Motors Corp. v. Romein, 503 U.S. 181,
191 (1992).

The Ballingers’ substantive due process claim

fails as a matter of law because they do not meet the
“extremely high” burden, Richardson v. City & Cty. of
Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997), of
showing that the Ordinance is arbitrary and
irrational. First, the Ordinance is not retrospective,
because although it upset the Ballingers’ expectations
about the costs of evicting their tenants, it does not
attach any new legal consequences to events
completed before its passage. See Franceschi v. Yee,
887 F.3d 927, 940 (9th Cir. 2018) (holding that statute
revoking driver’s licenses for failure to pay past-due
taxes did not operate retroactively because it was
“dependent on a taxpayer’s current conduct . . . and
not on past conduct”). Second, the Ordinance passes
rational basis review, regardless of whether it acts
 Appendix B-26

retroactively. The City Council’s legislative purpose,

to promote community stability and help tenants
avoid displacement and high moving costs, was a
legitimate one. See Pennell v. City of San Jose, 485
U.S. 1, 12–13 (1988) (holding that protection of
tenants is legitimate governmental purpose);
Apartment Ass’n of Greater L.A. v. City of Beverly
Hills, No. CV 18-6840 PSG (EX), 2019 WL 1930136,
at *7 (C.D. Cal. Apr. 17, 2019) (upholding challenge to
relocation payment ordinance against substantive due
process challenge). And the Ordinance is rationally
related to that legitimate end because it shifts some of
the costs of relocation from tenants evicted for no fault
of their own onto their landlords based on the size of
the rental property and the duration of the tenant’s
occupancy. Cf. Guggenheim v. City of Goleta, 638 F.3d
1111, 1122 (9th Cir. 2010) (en banc) (upholding rent
control ordinance against substantive due process
challenge). Thus, the Ballingers have not satisfied the
extremely high bar of showing that the duly-passed
Ordinance shocks the conscience so as to violate their
substantive due process rights.

The Court GRANTS the motion to dismiss the

due process claim because it concludes that the
Ballingers have not pled any facts to reasonably
support the conclusion that the Ordinance is
impermissibly retroactive, arbitrary, or irrational.

D. Contract Clause

The Ballingers’ sixth and final cause of action

asserts that the Ordinance violates the Constitution’s
Contract Clause. FAC ¶¶ 96–104.
 Appendix B-27

The Contract Clause provides that “[n]o State

shall . . . pass any . . . Law impairing the Obligation of
Contracts.” U.S. Const. art. I, § 10, cl. 1. The “Contract
Clause limits the power of the States to modify their
own contracts as well as to regulate those between
private parties” but “does not prohibit the States from
repealing or amending statutes generally, or from
enacting legislation with retroactive effects.” U.S. Tr.
Co. of N.Y. v. New Jersey, 431 U.S. 1, 17 (1977). The
Clause is “narrowly construe[d]” in order “to ensure
that local governments can effectively exercise their
police powers.” S. Cal. Gas Co. v. City of Santa Ana,
336 F.3d 885, 889 (9th Cir. 2003).

To assess whether “laws affecting pre-existing

contracts violate the Clause,” courts engage in a two-
step inquiry. Sveen v. Melin, 138 S. Ct. 1815, 1821
(2018). First, courts determine whether the state law
has “operated as a substantial impairment of a
contractual relationship.” Allied Structural Steel Co.
v. Spannaus, 438 U.S. 234, 244 (1978). This step
includes considering “the extent to which the law
undermines the contractual bargain, interferes with a
party’s reasonable expectations, and prevents the
party from safeguarding or reinstating his rights.”
Sveen, 138 S. Ct. at 1822. And “when considering
substantial impairment, [courts] focus on the
importance of the term which is impaired, not the
dollar amount.” S. Cal. Gas Co., 336 F.3d at 892.
Second, if there is substantial impairment, courts look
to the “means and ends of the legislation,” Sveen, 138
S. Ct. at 1822, including whether there is a
“significant and legitimate public purpose behind the
regulation,” Energy Reserves Grp., Inc. v. Kan. Power
& Light Co., 459 U.S. 400, 411 (1983). When the
 Appendix B-28

government is not a party to the contract, courts must

“defer to legislative judgment as to the necessity and
reasonableness of a particular measure.” Id. at 413
(internal quotation omitted).

The Court finds that the Ordinance does not

substantially impair the agreement between the
Ballingers and their tenants. Tellingly, the Ballingers
are not able to muster any precedent to support their
arguments. And given the “existence of extensive
regulation” of the landlord-tenant relationship, the
Ballingers could not reasonably have expected the
regulatory landscape to remain unchanged
indefinitely. See id. at 416 (finding no impairment of
reasonable expectations where parties recognized
“existence of extensive regulation” in field); see also
Rancho de Calistoga, 800 F.3d at 1091 (noting that
“those who do business in a regulated field cannot
object if the legislative scheme is buttressed by
subsequent amendments to achieve the legislative
end”) (internal quotation and alterations omitted);
Chi. Bd. of Realtors, Inc. v. City of Chicago, 819 F.2d
732, 737 (7th Cir. 1987) (considering extent of prior
landlord-tenant regulation and denying motion for
preliminary injunction on Contract Clause claim).
After all, when they leased their house, the Ballingers
would have been required to make a relocation
payment to a tenant they evicted under the Ellis Act.
The Ordinance simply extended this obligation to
include no-fault evictions for owner move-ins. And the
Ordinance does not prohibit owner move-ins, it just
redistributes the costs so that tenants are not forced
to bear the full financial brunt of being evicted. Thus,
the relocation payment is not a “ransom requirement,”
Opp. at 21, but merely one more regulation added to
 Appendix B-29

the stack of those governing the relationship between

Oakland landlords and their tenants.

The Court finds that the Ballingers have not

alleged a substantial impairment of their contractual
relationship and thus GRANTS the motion to dismiss
the Contract Clause cause of action.

E. Standing to Pursue Injunctive or

Declaratory Relief

Oakland contends that the Ballingers lack

standing to pursue either injunctive or declaratory
relief and that these claims for relief must be
dismissed. Mot. at 22–23. The Ballingers do not
respond to this argument.

A plaintiff “must show standing with respect to

each form of relief sought.” Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 978 (9th Cir. 2011). To establish
standing, a plaintiff “must have suffered an injury-in-
fact that is fairly traceable to the challenged conduct
and that is likely to be redressed by a favorable
judicial decision.” California v. Azar, 911 F.3d 558,
570 (9th Cir. 2018). And when a plaintiff seeks
prospective injunctive relief, he must establish “a real
and immediate threat of repeated injury” so as to show
“a sufficient likelihood that he will again be wronged
in a similar way.” Bates v. United Parcel Serv., Inc.,
511 F.3d 974, 985 (9th Cir. 2007) (quotations omitted).

Given that the Ballingers did not oppose this

ground for dismissal, and the Court has dismissed the
substantive claims, the Court declines to rule on
whether the Ballingers have adequately pled standing
to pursue injunctive or declaratory relief.
 Appendix B-30

IV. CONCLUSION

The Court finds that the Ballingers have failed to

plead a cognizable legal theory on any of their
constitutional challenges to the Ordinance and thus
GRANTS the motion to dismiss. Further, the Court
grants the motion without leave to amend because it
finds that leave would be futile, as counsel for the
Ballingers acknowledged at the hearing that the
factual underpinnings are not disputed. Of course, in
granting this motion, the Court does not opine on the
wisdom or the effectiveness of the Ordinance in
alleviating what is undoubtedly a housing crisis in the
Bay Area. Cf. Miralle v. City of Oakland, No. 18-CV-
06823-HSG, 2018 WL 6199929, at *4 (N.D. Cal.
Nov.28, 2018) (noting that “the question before the
Court is not whether the City’s policy approach” to
addressing the “homelessness crisis” is “the ideal
policy approach”). But the Ballingers lack a cognizable
legal claim for the reasons discussed above, and that
finding ends the Court’s inquiry here.

The Clerk is directed to close the case and enter

judgment in favor of Defendants.

IT IS SO ORDERED.

Dated: 8/2/19
/s/ Haywood S. Gilliam, Jr.
HAYWOOD S. GILLIAM, JR.
United States District Judge
 Appendix C-1

ARTICLE VII. UNIFORM RESIDENTIAL

TENANT RELOCATION ORDINANCE

8.22.800 - Purpose.

The purpose of this Section is to establish an

uniform amount for relocation payments for tenants
displaced by no-fault evictions.

(Ord. No. 13468, § 1, 1-16-2018)

8.22.810 - Definitions.

“Disabled” means a person with a disability, as

defined in Section 12955.3 of the Government Code.

“Elderly” means a person sixty-two (62) years old

or older.

“Lower-Income Tenant Household” means Tenant

Households whose income is not more than that
permitted for lower income households, as defined by
California Health and Safety Code Section 50079.5.

“Minor Child(ren)” means a person(s) who is

eighteen (18) years or younger at the time the notice
is served.

“Owner” or “Property Owner” means a person,

persons, corporation, partnership, limited liability
company, or any other entity holding fee title to the
subject real property. In the case of multiple
ownership of the subject real property, “Owner” or
“Property Owner” refers to each entity holding any
portion of the fee interest in the property, and the
property owner’s obligations in this Chapter shall be
joint and several as to each property owner.
 Appendix C-2

“Qualifying Relocation Event” means any event or

vacancy that triggers a Tenant’s right to relocation
payments under the Oakland Municipal Code.

“Rental Unit” means a dwelling space in the City

containing a separate bathroom, kitchen, and living
area, including a single-family dwelling or unit in a
multifamily or multipurpose dwelling, or a unit in a
condominium or cooperative housing project, or a unit
in a structure that is being used for residential uses
whether or not the residential use is a conforming use
permitted under the Oakland Municipal Code or
Oakland Planning Code, which is hired, rented, or
leased to a household within the meaning of California
Civil Code Section 1940. This definition applies to any
dwelling space that is actually used for residential
purposes, including live-work spaces, whether or not
the residential use is legally permitted.

“Room” means an unsubdivided portion of the

interior of a residential building in the City which is
used for the purpose of sleeping, and is occupied by a
Tenant Household for at least thirty (30) consecutive
days. This includes, but is not limited to, a rooming
unit or efficiency unit located in a residential hotel, as
that term is defined in accordance with California
Health and Safety Code Section 50519. This definition
applies to any space that is actually used for
residential purposes whether or not the residential
use is legally permitted. For purposes of determining
the amount of relocation payments, a room is the
equivalent of a studio apartment.

“Tenant” means a Tenant as that term is defined

in O.M.C. 8.22.340.
 Appendix C-3

“Tenant Household” means one (1) or more

individual Tenants who rent or lease a Rental Unit or
Room as their primary residence and who share living
accommodations. In the case where an individual
Room is rented to multiple Tenants under separate
agreements, each individual Tenant of such Room
shall constitute a “Tenant Household” for purposes of
this article.

(Ord. No. 13608, § 6(Att. E), 7-21-2020; Ord.

No. 13468, § 1, 1-16-2018)

8.22.820 - Amount of relocation payments.

A. Unless otherwise specified in a Section of the

Oakland Municipal Code requiring relocation
payments, Tenant Households who are
required to move as a result of a Qualifying
Relocation Event shall be entitled to a
relocation payment from the Owner in the
sum of six thousand five hundred dollars
($6,500.00) per unit for studios and one-
bedroom apartments; eight thousand dollars
($8,000.00) per unit for two-bedroom
apartments; and nine thousand eight
hundred seventy-five dollars ($9,875.00) per
unit for units with three or more bedrooms.
The payment shall be divided equally among
all Tenants occupying the Rental Unit at the
time of service on the Tenants of the notice of
termination of tenancy.

B. Unless otherwise specified in a Section of the

Oakland Municipal Code requiring relocation
payments, Tenant Households in Rental
Units that include lower income, elderly or
 Appendix C-4

disabled Tenants, and/or minor children shall

be entitled to a single additional relocation
payment of two thousand five hundred dollars
($2,500.00) per unit from the Owner. If a
household qualifies for this additional
payment, the payment shall be divided
equally among eligible (lower-income, elderly,
disabled, parents/guardians of minor
children) Tenants.

C. In the case of temporary relocations under

O.M.C. 15.60.110 B., the amounts in
paragraphs A-B shall be a cap on relocation
payments.

D. The relocation payments specified in

subsection 8.22.820 A. shall increase annually
on July 1 in accordance with the CPI
Adjustment as calculated in OMC subsection
8.22.070 B.3, and the increase shall apply to
all eviction notices served on or after July 1.
The first increase shall take place on July 1,
2017.

(Ord. No. 13608, § 6(Att. E), 7-21-2020; Ord.

No. 13468, § 1, 1-16-2018)

ARTICLE VIII. RELOCATION PAYMENTS FOR

OWNER OR RELATIVE MOVE-INS

8.22.850 - Relocation Payments for Owner or

Relative Move-Ins.

A. Applicability. An owner who evicts a tenant

pursuant to O.M.C. Section 8.22.360 A.9. or
where a tenant vacates following a notice or
 Appendix C-5

other communication stating the owner’s

intent to seek recovery of possession of the
unit under this O.M.C. Section must provide
relocation payment under this Section.
Relocation payment procedures pursuant to
code compliance or Ellis Act evictions will be
governed by the Code Compliance Relocation
Ordinance and the Ellis Act Ordinance.

B. The property owner shall be responsible for

providing relocation payments, in the
amounts specified in Section 8.22.820, to an
eligible tenant household in the form and
manner prescribed under this article and any
rules and regulations adopted under this
article.

C. Tenant Eligibility for Payment. Tenants will

be eligible for relocation payments according
to the following schedule based on the
effective date of ay notice to terminate:

1. Upon taking possession of the rental unit,

the tenant will be eligible for one-third (⅓)
of the total payment pursuant to
subsection B., above.

2. After one (1) year of occupancy of the

rental unit, the tenant will be eligible for
two-thirds (⅔) of the total payment
pursuant to subsection B., above.

3. After two (2) years of occupancy of the

rental unit, the tenant will be eligible for
the full amount of the total payment
pursuant to subsection B., above.
 Appendix C-6

D. Time for Payment.

1. The owner must pay the tenant half of the

relocation payment provided for in
Subsection 8.22.820 A. when the
termination notice is given to the
household and the remaining half when
the tenant vacates the unit.

2. The owner must pay the tenant the

additional payment provided for in Section
8.22.820 B. within fifteen (15) days of the
tenant’s notice of eligibility or the tenant
supplying documentation of the tenant’s
eligibility.

3. An owner who pays relocation expenses in

conjunction with a notice to quit as
required by this Section need not pay the
same relocation expenses with any further
notices to quit based on O.M.C. Section
8.22.360 A.9. for the same unit that are
served within one hundred eighty (180)
days of the notice that included the
required relocation payment. Nothing in
this paragraph relieves the owner from
portions of relocation expenses not yet
paid by the owner or received by the
tenant, including the remaining half due
when the tenant vacates the unit.

E. If an owner fails to make the relocation

payment as prescribed, the tenant may file an
action against the owner and, if the tenant is
found eligible for the relocation payments, the
tenant will be entitled to recover the amount
 Appendix C-7

of the relocation payments plus an equal

amount as damages and the tenant’s
attorney’s fees. Should the owner’s failure to
make the payments as prescribed be found to
be in bad faith, the tenant shall be entitled to
the relocation payments plus an additional
amount of three (3) times the amount of the
relocation payments and the tenant’s
attorney’s fees.

F. Owners may apply for a zero-interest loan

from the City of Oakland for the purpose of
satisfying their relocation payment obligation
under this O.M.C Section if they meet the
eligibility criteria set forth below. An owner
qualifies for a relocation payment assistance
loan if they meet the following two (2)
conditions:

1. Ownership of fewer than five (5) units in

the City of Oakland. In the case of a
relative move-in, the relative must also
not own any other real estate property and
must be of low or moderate income as
defined by California Health and Safety
Code Section 50093.

2. The owner must be ineligible for a cash-out

refinance loan based on the underwriting
criteria for investment properties set
forward by Fannie Mae regulations.
 Appendix C-8

The owner must also meet at least one (1) of the

following two (2) conditions to qualify:

1. The owner must not have more than six (6)

months of liquid financial reserves as
defined by Fannie Mae regulations.

2. The owner must qualify as low or

moderate income as defined by California
Health and Safety Code Section 50093.

The City Administrator may issue additional

regulations or guidance to implement this subsection.

(Ord. No. 13608, § 7(Att. F), 7-21-2020; Ord.

No. 13468, § 2, 1-16-2018; Ord. No. 13499, § 1, 7-24-
2018)

8.22.860 - Violation—Penalty.

A. Criminal Penalties.

1. Infraction. Any property Owner violating

any provision or failing to comply with any
requirements of this article shall be guilty
of an infraction for the first offense.

2. Misdemeanor. Any property Owner

violating any provision or failing to comply
with any requirements of this article
multiple times shall be guilty of a
misdemeanor.

B. Administrative Penalties.

1. Administrative Citation. Any person

violating any provision or failing to comply
 Appendix C-9

with any requirements of this article may

be assessed an administrative citation
pursuant to O.M.C. Chapter 1.12 for the
first offense.

2. Civil Penalties. Any person violating any

provision or failing to comply with any
requirements of this article multiple times
may be assessed a civil penalty for each
violation pursuant to O.M.C. Chapter
1.08.

C. Violation includes attempted violation. In

addition to failing to comply with this article,
it is also violation to attempt to have a Tenant
accept terms that fail to comply with this
article, including any of the following actions:

1. Asking the Tenant to accept an agreement

that pays less than the required relocation
payments;

2. Asking the Tenant to accept an agreement

that waives the Tenant’s rights; or

3. Upon a return to the unit, asking the

Tenant to pay a higher rent than is
permitted under this article or O.M.C.
Chapter 8.22.

(Ord. No. 13468, § 2, 1-16-2018)

8.22.870 - Civil Remedies.

A. Any person or organization who believes that

a property Owner or Tenant Household has
 Appendix C-10

violated provisions of this article or the

program rules and regulations adopted
pursuant to this article shall have the right to
file an action for injunctive relief and/or
actual damages against such party. Whoever
is found to have violated this article shall be
subject to appropriate injunctive relief and
shall be liable for damages, costs and
reasonable attorneys’ fees. Treble damages
shall be awarded for a property Owner’s
willful failure to comply with the payment
obligation established under this article.

B. Nothing herein shall be deemed to interfere

with the right of a property Owner to file an
action against a Tenant or non-Tenant third
party for the damage done to said Owner’s
property. Nothing herein is intended to limit
the damages recoverable by any party
through a private action.

C. The City Attorney may bring an action

against a property Owner that the City
Attorney believes has violated provisions of
this article or any program rules and
regulations adopted pursuant to this article.
Such an action may include injunctive relief
and recovery of damages, penalties—
including any administrative citations or civil
penalties—treble damages, and costs and
reasonable attorney’s fees. The City Attorney
has sole discretion to determine whether to
bring such an action.

(Ord. No. 13468, § 2, 1-16-2018)

 No. __________

In the
Supreme Court of the United States

LYNDSEY BALLINGER; SHARON BALLINGER,

Petitioners,
v.
CITY OF OAKLAND,
Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Ninth Circuit

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the PETITION FOR
WRIT OF CERTIORARI contains 8,613 words, excluding the parts of the document
that are exempted by Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 23, 2022.
__________________________________
J. DAVID BREEMER
Counsel of Record
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
Email: [email protected]
Counsel for Petitioners
 2311 Douglas Street E-Mail Address:
Omaha, Nebraska 68102-1214 [email protected]

1-800-225-6964 Web Site

(402) 342-2831 www.cocklelegalbriefs.com
Fax: (402) 342-4850
No. _________

LYNDSEY BALLINGER; SHARON BALLINGER,

Petitioners,
v.
CITY OF OAKLAND,
Respondent.

AFFIDAVIT OF SERVICE

I, Andrew Cockle, of lawful age, being duly sworn, upon my oath state that I did, on the 24th day of February, 2022, send out
from Omaha, NE 1 package(s) containing 3 copies of the PETITION FOR WRIT OF CERTIORARI in the above entitled
case. All parties required to be served have been served by Priority Mail. Packages were plainly addressed to the following:

SEE ATTACHED

To be filed for:
J. DAVID BREEMER*
*Counsel of Record
BRIAN T. HODGES
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
[email protected]

Counsel for Petitioners

Subscribed and sworn to before me this 24th day of February, 2022.

I am duly authorized under the laws of the State of Nebraska to administer oaths.

Notary Public Affiant

42055
 Service List
Ballinger v. City of Oakland

Counsel for Respondent:

Kevin P. McLaughlin
Office of the City Attorney
One Frank Ogawa Plaza, 6th Floor
Oakland, CA 94612
Telephone: (510) 238-2961
Email: [email protected]