Opinion · Court of Appeals for the Ninth Circuit

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

Azul-Pacifico, Inc. v. City of L.A., Azul-Pacifico, Inc. v. City of L.A., 973 F.2d 704 (9th Cir. 1992)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1992-07-23
Topic
general

How later courts describe this case

  • holding that a takings plaintiff has “no cause of action directly under the United States Constitution”
  • concluding that a plaintiff “complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983” where § 1983 “was available . . . but plaintiff failed to file its complaint within the applicable limitations period”
  • stating that a “litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983”
  • holding plaintiff had no direct right of action under Constitution and was required to have asserted claim for constitutional violation through § 1983
  • stating that there is “no cause of action directly under the United States Constitution” and thus “a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983”
  • explaining that there is “no cause of action directly under the United States Constitution . . . a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983.”
  • dismissing appeal for lack of subject matter jurisdiction where federal takings claim was not brought under § 1983
  • finding plaintiff had “no cause of action directly under the United States 7

Citator

UpLaw has not yet analyzed Azul-Pacifico, Inc. v. City of Los Angeles, Azul-Pacifico, Inc. v. City of Los Angeles. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
177 opinions
AZUL-PACIFICO, INC. v. CITY OF LOS ANGELES,973 F.2d 704(9th Cir. 1992)
AZUL-PACIFICO, INC., PLAINTIFF-APPELLEE, v. CITY OF LOS ANGELES,
DEFENDANT-APPELLANT.
AZUL-PACIFICO, INC., PLAINTIFF-APPELLANT, v. CITY OF LOS ANGELES,
DEFENDANT-APPELLEE.
No. 90-55853, 90-56066.
United States Court of Appeals, Ninth Circuit.
July 23, 1992.
Appeal from the United States District Court for the Central District of California.Page 705
Before POOLE, KOZINSKI and LEAVY, Circuit Judges.
[1] ORDER
[2] 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 at948 F.2d 575is WITHDRAWN.

[3] 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 utilize42 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. Molinav. 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. RobesonCounty 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.

[4] 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 CruzCounty,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 inWilson 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 1985.1Azul did not file its complaint until April 1987.

[5] 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.
[6] KOZINSKI, Circuit Judge, concurring and dissenting.
[7] I agree that the petition for rehearing must be granted in light ofYee v. City of Escondido,___ U.S. ___, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992), andLucas v. South CarolinaCoastal 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 byDe AnzaProperties X., Ltd. v. County of Santa Cruz,936 F.2d 1084(9th Cir. 1991).Yeenot only overruledHall v. City of SantaBarbara,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 overruledDeAnza,which was premised upon the physical taking theory ofHall. See De Anza,936 F.2d at 1086-87.De Anzais 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 interveningYeeandLucasdecisions, and the resultant obsoleteness ofDe Anza.Page 706
  1. Wilsonwas decided in April 1985. ↩