Azul-Pacifico, Inc. v. City of Los Angeles, Azul-Pacifico, Inc. v. City of Los Angeles

973 F.2d 704

9th Cir.

1992

Check Treatment

AZUL-PACIFICO, INC., Plaintiff-Appellee, v. CITY OF LOS ANGELES, Defendant-Appellant. AZUL-PACIFICO, INC., Plaintiff-Appellant, v. CITY OF LOS ANGELES, Defendant-Appellee.

Nos. 90-55853, 90-56066.

United States Court of Appeals, Ninth Circuit.

July 23, 1992.

973 F.2d 704

Before POOLE, KOZINSKI and LEAVY, Circuit Judges.

In light of the foregoing, we affirm the district court‘s order denying the government‘s motion for summary judgment on the ground that there are triable issues of fact as to whether the acts certified for trial flowed from choices grounded in social, economic or political policy.

The order of the district court denying the government‘s motion for summary judgment is AFFIRMED.

rently pending in a Nevada district court. See Prescott, 724 F.Supp. at 798 (citing Roberts v. United States, 724 F.Supp. 778 (D.Nev.1989)). In Roberts, on remand from our decision discussed above, Roberts, 887 F.2d 899, the district court found that the government violated Atomic Energy Commission regulations in carrying out certain aspects of the nuclear tests which resulted in the alleged injuries. Roberts, 724 F.Supp. at 785-87. As a result, the court held that it had subject matter jurisdiction over the suit under the first part of the Summers inquiry. Plaintiffs in this case argue that the government acted in contravention of its own regulations just as it did in Roberts and that therefore there is no difference between Roberts and this case.

The government strongly disputes this contention. If, as plaintiffs contend, the government officials did indeed violate their own regulations, denial of summary judgment would have been proper under prong one of the Summers inquiry. Although the district court‘s reference to the regulations cited in Roberts suggests that the court thought certain AEC regulations were applicable here and the government violated them, see Prescott, 724 F.Supp. at 798, the record is less than clear on this issue. Because we affirm the order denying the motion for summary judgment under prong two of the Summers inquiry, however, we decline to address this ambiguity in the record with respect to prong one of the same inquiry.

ORDER

The panel has voted unanimously to grant the petition for rehearing. Accordingly, the petition for rehearing is GRANTED and the opinion filed November 1, 1991 and reported at 948 F.2d 575 is WITHDRAWN.

Plaintiff has no cause of action directly under the United States Constitution. We have previously held that a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983. See, e.g., Bretz v. Kelman, 722 F.2d 503 (9th Cir.1983), vacated on other grounds, 773 F.2d 1026 (1985) (en banc); Ward v. Caulk, 650 F.2d 1144 (9th Cir.1981). Cf. Molina v. Richardson, 578 F.2d 846 (9th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978). See also, e.g., Thomas v. Shipka, 818 F.2d 496 (6th Cir.1987); Hunt v. Robeson County Dept. of Social Serv., 816 F.2d 150 (4th Cir.1987); Morris v. Metropolitan Area Transit Auth., 702 F.2d 1037 (D.C.Cir.1983); Beineman v. City of Chicago, 662 F.Supp. 1297 (N.D.Ill.1987), appeal dismissed, 838 F.2d 962 (7th Cir.1988). Section 1983 was available to Azul, but plaintiff failed to file its complaint within the applicable limitations period.

Even were we to allow Azul to pursue such a “direct” Constitutional claim it would also be barred by the statute of limitations. The cause of action accrued when the ordinance at issue here was enacted. De Anza Properties X, Ltd. v. Santa Cruz County, 936 F.2d 1084, 1085 (9th Cir.1991). Azul should have filed its complaint within three years of the May 1982 date of enactment or within one year of the Supreme Court‘s decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). See Usher v. Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The limitations period under those alternatives expired in May 1985.¹ Azul did not file its complaint until April 1987.

Accordingly, the judgment of the district court is VACATED and this appeal is DISMISSED because the federal courts do not have subject matter jurisdiction over Azul‘s complaint.

KOZINSKI, Circuit Judge, concurring and dissenting.

I agree that the petition for rehearing must be granted in light of Yee v. City of Escondido, — U.S. —, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), and Lucas v. South Carolina Coastal Council, — U.S. —, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). But I cannot agree with the majority‘s conclusion that Azul‘s cause of action is necessarily extinguished by De Anza Properties X., Ltd. v. County of Santa Cruz, 936 F.2d 1084 (9th Cir.1991). Yee not only overruled Hall v. City of Santa Barbara, 833 F.2d 1270 (9th Cir.1986), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988), upon which our opinion in this case was based; it implicitly overruled De Anza, which was premised upon the physical taking theory of Hall. See De Anza, 936 F.2d at 1086-87. De Anza is simply no longer good law for determining when a cause of action accrues for a takings claim. Thus, I would remand to the district court for determination of the statute of limitations issue in light of the intervening Yee and Lucas decisions, and the resultant obsoleteness of De Anza.

Notes

Wilson was decided in April 1985.