FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNDSEY BALLINGER; SHARON 

BALLINGER,

Plaintiffs-Appellants,

v.

CITY OF OAKLAND,

Defendant-Appellee.

No. 19-16550

D.C. No.

4:18-cv-07186-

HSG

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Submission Withdrawn July 16, 2021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-tomonth 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 asapplied 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 landlordtenant 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/interactiveconstitution/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://presspubs.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 roughproportionality 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’ asapplied 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)).