Lyndsey Ballinger v. City of Oakland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNDSEY BALLINGER; SHARON No. 19-16550
BALLINGER,
Plaintiffs-Appellants, D.C. No.
4:18-cv-07186-
v. HSG
CITY OF OAKLAND,
Defendant-Appellee. OPINION
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Submission Withdrawn July 16, 2021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
2 BALLINGER V. CITY OF OAKLAND
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.
The panel rejected plaintiffs’ assertion that the City
placed an unconstitutional condition, called an exaction, on
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BALLINGER V. CITY OF OAKLAND 3
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.
4 BALLINGER V. CITY OF OAKLAND
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.
I
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
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
BALLINGER V. CITY OF OAKLAND 5
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 “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
6 BALLINGER V. CITY OF OAKLAND
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 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.
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.
BALLINGER V. CITY OF OAKLAND 7
City of Calistoga, 800 F.3d 1083, 1093 (9th Cir. 2015)
(private takings claim is not an independent cognizable
claim).
A
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.
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
8 BALLINGER V. CITY OF OAKLAND
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 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
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).
BALLINGER V. CITY OF OAKLAND 9
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
“[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
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).
10 BALLINGER V. CITY OF OAKLAND
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.
B
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,
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)).
BALLINGER V. CITY OF OAKLAND 11
1
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 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.
12 BALLINGER V. CITY OF OAKLAND
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).
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
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
BALLINGER V. CITY OF OAKLAND 13
2
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, 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
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).
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);
14 BALLINGER V. CITY OF OAKLAND
By way of example, money can be subject to a taking
when the government procures the interest 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/interactive-
constitution/interpretation/amendment-v/clauses/634 (“bag
full of cash” is subject to physical taking).
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://press-
pubs.uchicago.edu/founders/documents/v1ch16s23.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.
BALLINGER V. CITY OF OAKLAND 15
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 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
16 BALLINGER V. CITY OF OAKLAND
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 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;
BALLINGER V. CITY OF OAKLAND 17
• 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
• 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
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.
18 BALLINGER V. CITY OF OAKLAND
constitutional right” or “coercing people into giving [those
rights] up” by imposing unconstitutional conditions on the
use of 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.
A
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 dedication of property to public use.”
(emphasis added)); Lingle, 544 U.S. at 546 (describing
BALLINGER V. CITY OF OAKLAND 19
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
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.
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.”).
20 BALLINGER V. CITY OF OAKLAND
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, 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).
B
Here, the Ballingers claim that the City’s Ordinance (a
legislatively imposed condition) is an unconstitutional
BALLINGER V. CITY OF OAKLAND 21
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 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.
22 BALLINGER V. CITY OF OAKLAND
V
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 [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).
BALLINGER V. CITY OF OAKLAND 23
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 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
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,
24 BALLINGER V. CITY OF OAKLAND
AFFIRMED.
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)).