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

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the petition for rehearing is GRANTED and the opinion filed November 1, 1991 and reported at 948 F.2d 575 is WITHDRAWN.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”…

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.

973 F.2d 704 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. Before POOLE, KOZINSKI and LEAVY, Circuit Judges. ORDER 1 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. 2 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…