Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: “Two ‘GVRs’ Show Continued Restraint by the Justices.”

The following is an excerpt:

The Court issued two per curiam opinions today, both of them granting cert., vacating the judgments below, and remanding the cases to a lower court for further factual inquiry, a procedure known colloquially as a “GVR.” Both of these unsigned opinions represent restraint, deferring to trial courts for factual findings and deferring reaching legal issues until it is unavoidable. In one of the two cases, three conservative Justices, a bit anomalously to normal conservative doctrine, I suggest, criticize the majority for doing that. However, in the end, the Court is acting as what it is supposed to be: one of legal review, not factfinding.

As last week’s decision in Cedar Point Nursery v. Hassid, illustrates, property rights cases are controversial among the Justices (and others), though not necessarily along the lines that many observers might have assumed. Today’s decision in another Fifth Amendment takings case, Pakdel v. City and County of San Francisco, avoids any such controversy. Here, the unanimous Court acknowledges the general rule that, in determining whether a regulatory taking violates the Fifth Amendment, a federal court should not consider the claim before the government has reached a “final” decision. However, the exhaustion of state remedies is not a prerequisite to an action, such as this one, under 42 U. S. C. §1983. Thus, the married couple who are co-owners of a multiunit residence, who had applied for conversion of the building into a condominium, but now sought the vacation of a lifetime lease to a tenant that had been a feature of the conversion approval, argued that their compelled agreement to the lease provision was an unconstitutional regulatory taking. While their appeals of the denial of their position were pending, the Supreme Court held that a §1983 case can be brought without first bringing a state lawsuit. The Ninth Circuit, nevertheless, insisted, pursuant to another Supreme Court ruling, that plaintiffs may challenge only “final” government decisions, which had not taken place here. In reversing the oft-reversed Ninth Circuit, the Supreme Court held that the appeals court’s view of finality was too stringent, that it tended to impose a rigid exhaustion condition that is not required in §1983 takings cases. Instead, the finality requirement is “relatively modest,” with a plaintiff having to show no more than that there is no question about how the city mandates that its governing regulation applies. On remand, the lower court will be able to take that into account, along with the issues just identified by the Court in the Cedar Point case.

Click here to read the full post and more on SCOTUS Today.