In October, I highlighted—and labeled “ripe for reversal”—the Ninth Circuit’s denial of en banc review of a divided panel ruling (in Pakdel v. City of San Francisco) that held that a takings challenge was “unripe” because plaintiffs failed to avail themselves of a previously existing opportunity to apply for an exemption. Judge Carlos Bea had dissented from the panel ruling, and Judge Daniel P. Collins, joined by eight colleagues (Callahan, M. Smith, Ikuta, R. Nelson, Bade, Bress, Bumatay, and VanDyke) objected to the denial of en banc rehearing.
As Bea and Collins explained, the panel majority, under the confused rubric of lack of finality, had instead imposed a requirement that takings plaintiffs exhaust state remedies—a requirement that directly contravenes the Supreme Court’s 2019 decision in Knick v. Township of Scott.
Today the Supreme Court, without any registered dissent, summarily reversed the Ninth Circuit’s ruling and embraced the position taken by Bea and Collins.
To add to my post from last week: That makes at least six times this Term that the Supreme Court has vindicated conservative Ninth Circuit judges who have objected to that court’s failure to conduct en banc rehearing of suspect panel rulings.
Bea wrote a dissent in one of the six cases and joined dissents in four others. (He had taken senior status by the time the vote in the sixth case occurred.)
Collins wrote dissents in three of the six cases and joined dissents in two others. (He didn’t participate, evidently because of a recusal obligation, in the sixth.) Occasional reminder/disclosure: Collins and I clerked together for Justice Scalia and have been friends since then.