     Case: 17-30692   Document: 00514524830     Page: 1   Date Filed: 06/22/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                          Fifth Circuit

                                                                         FILED
                                                                      June 22, 2018
                                 No. 17-30692
                                                                      Lyle W. Cayce
                                                                           Clerk
LOURDES T. ARCHBOLD-GARRETT, wife of/ and; DAVID L. GARRETT,

            Plaintiffs-Appellants

v.

NEW ORLEANS CITY; METRO DURR GROUP,

            Defendants-Appellees



                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, JONES, and GRAVES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Without prior notice, the City of New Orleans demolished a building
along the IH-10 service road that plaintiffs had recently purchased at a tax
sale. Yet two days before the demolition, the City actually cancelled the Code
Enforcement lien on the property, which it obtained after sending notices only
to the owner from 18 years earlier.       When the Garretts objected to the
demolition, the City added insult to injury by sending them a bill for the costs.
Unsurprisingly, they filed suit. The question before this court is whether their
lawsuit survives the City’s motion to dismiss for lack of jurisdiction. Fed. R.
Civ. P. 12(b)(1). We hold it does. We VACATE the district court’s judgment
and REMAND for further proceedings consistent with this opinion.
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                              BACKGROUND
      The Garretts’ Section 1983 complaint alleged violations of the Takings
Clause of the Fifth Amendment, the Fourth Amendment, and the Fourteenth
Amendment Due Process Clause.
      The property at issue is a parcel of land and a townhome that used to
stand off of I-10 in New Orleans. The City had owned the property since 1998
after its previous owner, Charles Jett, neglected to pay his taxes. The City’s
ownership was recorded with the City Conveyance Office shortly thereafter.
Notwithstanding its ownership, the City instituted housing Code Enforcement
proceedings against Jett in 2012.
      The Appellants purchased the property from the City on October 2, 2015,
and recorded the conveyance on October 14. They aver that the building on
the property was structurally sound, and the purchase documents contain no
warnings of defects (though the document makes no positive statement about
the buildings and improvements either).
      Heedless of the sale to Appellants, or of its original tax sale purchase,
the City continued to pursue Jett for alleged code enforcement deficiencies. An
administrative judgment was entered against Jett on October 30, ordering him
to pay over $12,000 in fines and warning that the building could be demolished
in the future. A judgment lien was recorded on the property on December 7,
2015. The Appellants were not named in the judgment or lien, and they
received no notice from the City about the judgment or lien. All proceedings
were against Jett, the pre-1998 owner.
      On January 15, 2016, the Appellants’ realtor noticed a sign advising
upcoming demolition of the property. When the realtor informed them of the
sign, they contacted the City.      After some back-and-forth with the Code
Enforcement department, Appellants persuaded the City to cancel the lien



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against the property.     The e-mail exchanges indicated that Appellants
intended to develop the property and resolve all code enforcement issues. The
lien was cancelled on January 25, 2016.
      Two days later, despite having cancelled the enforcement lien, the City
demolished the townhouse on the Appellants’ property. The Appellants had no
warning.
      Appellants’ counsel sent the City a letter on April 14 requesting
compensation for the wrongful demolition. The City responded on April 19
with a bill exceeding $11,000 for the demolition costs. The bill informed the
Appellants of their “right to appeal the accuracy and reasonableness of these
costs by appearing at a hearing.” Plaintiffs did not appeal.
      The Appellants filed this civil rights case in federal court on October 28,
2016, alleging denial of due process and just compensation under the Fourth,
Fifth, and Fourteenth Amendments. The City moved to dismiss Appellants’
complaint for lack of subject matter jurisdiction because their claims were
unripe.    The district court agreed that the Appellants’ takings claim was
jurisdictionally unripe because they failed to seek compensation in state court.
The district court reasoned that the Appellants’ failure to seek compensation
in state court also meant that their intertwined procedural due process and
Fourth Amendment claims were unripe. Following dismissal of their suit, the
Appellants timely appealed.
                         STANDARD OF REVIEW
      This court reviews motions to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) de novo. See Moran
v. Kingdom of Saudi Arabia, 27 F.3d 169, 171 (1994).




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                                  DISCUSSION
      Ripeness doctrine enforces the Constitution’s limit of federal court
jurisdiction to “cases or controversies” by preventing premature litigation. “[A]
claim is not ripe for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U.S. 296, 300, 118 S. Ct. 1257, 1259 (1998) (quoting Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S. Ct. 3325, 3333
(1985)). The district court here determined that the Appellants’ takings claim
was not ripe because they did not file an inverse condemnation action in state
court under Louisiana law, as required by Williamson County Regional
Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172,
105 S. Ct. 3108 (1985).     The court reasoned that, without first seeking
compensation, the Appellants had not been denied just compensation.
Appellants’ procedural due process claim was similarly unripe because “where
the injury that resulted from an alleged procedural due process violation is
merely a taking without just compensation, we cannot know whether the
plaintiff suffered any injury until the takings claim has been adjudicated.”
Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 91 (5th
Cir. 2011). Finally, the district court characterized the Appellants’ Fourth
Amendment seizure claim as unripe because it appeared dependent on the
resolution of the other claims.
      The Appellants challenge each of these holdings. We address their due
process claim first, as it colors the analysis for their remaining claims.
      I. Procedural Due Process
      Appellants’ due process claim is premised on the City’s failure to give
them notice and an opportunity to defend against the fines and scheduled
demolition. Contrary to the district court’s view, they contend, this due process



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claim is not subsidiary to and thus unripe along with the takings claim. They
argue that by its terms, their due process claim challenges injuries different
from their takings claim because it concerns “the means by which the
deprivation was effected, not the deprivation itself.” A procedural due process
violation is actionable and compensable without regard to any other injury.
See Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 1054 (1978) (“Because
the right to procedural due process is ‘absolute’ in the sense that it does not
depend upon the merits of a claimant’s substantive assertions . . . the denial of
procedural due process should be actionable for nominal damages without
proof of actual injury.”).      Further, their due process claim seeks distinct
remedies from the takings claim. The fair market value of the property taken
is ordinarily the measure of damages for a takings claim, while a “broad array
of common law remedies” is available for a procedural due process claim. For
the latter claim, the Appellants seek both economic damages for the
demolition’s harm to their plan to redevelop their property and equitable relief
from the City’s bill for demolition costs, none of which are available, they say,
in a takings claim. 1 Appellants thus contend that the due process claim does
not “assert[] the same injuries [or] seek[] the same relief as a takings claim.”
       The City counters that the district court correctly applied Williamson
County to prevent premature litigation of Appellants’ claims. The City relies
on John Corp. v. City of Houston, 214 F.3d 573 (5th Cir. 2000) and Rosedale
Missionary Baptist Church v. New Orleans City, 641 F.3d 86 (5th Cir. 2011) for
the proposition that “procedural due process claims alleging that a plaintiff
was not afforded sufficient due process before a demolition of property are

       1 We also note the Appellants’ allegation that the state-court action would be futile
because the City has a history of not paying state-court judgments. This does not appear on
the face of their complaint. However, when asked about this contention at oral argument,
the City acknowledged that it is not required to immediately pay judgments, and instead has
the discretion to pass ordinances to allocate funds to pay “as they see fit.”


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unripe if the takings claim associated with it has not yet been decided through
state court procedures.” Moreover, an inverse condemnation action under
Louisiana law could give the Appellants the relief they seek for the alleged due
process violation. See Mossy Motors, Inc. v. Sewerage & Water Bd. of New
Orleans, 753 So.2d 269 (La. Ct. App. 1999); State Through Dep’t of Transp. &
Dev. v. Chambers Inv. Co., 595 So.2d 598 (La. 1992). 2
       Appellants respond that Rosedale and John Corp. are distinguishable
because the court found in each of those cases that “just compensation” for a
taking would give the plaintiffs full relief. Therefore, they argue their distinct
due process claim should be judged under the traditional standard that the
injury is complete at the time process is denied. See Bowlby v. City of Aberdeen,
681 F.3d 215, 225 (5th Cir. 2012).
       This court’s opinion in Rosedale guides our analysis. There, this court
explained:
       John Corp., like the instant case, was brought by a plaintiff
       alleging that it was not provided sufficient process before the state
       demolished its property. We held that “it will only be when a court
       may assess the takings claim that it will also be able to examine
       whether [the owner of the demolished property was] afforded less
       procedure than is constitutionally required.”           Until then,
       “additional factual development is necessary.” The reason is that,
       where the injury that resulted from an alleged procedural due
       process violation is merely a taking without just compensation, we
       cannot know whether the plaintiff suffered any injury until the
       takings claim has been adjudicated. And because Williamson
       County requires that the takings claim be adjudicated “through
       the procedures the State has provided for doing so,” we cannot
       decide the takings claims ourselves.

       2 The City also argues that the ordinance permitting it to demolish a property in
imminent danger of collapse requires no notice. This could set up a defense to the Garretts’
claim, but the propriety of the demolition under local law is not at issue in this motion to
dismiss on the pleadings. On a motion to dismiss, “[a]ny well-pled factual allegations must
be viewed in the light most favorable to the plaintiffs . . . .” Beavers v. Metro. Life Ins. Co.,
566 F.3d 436, 439 (5th Cir. 2009).


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                We must therefore allow state takings procedures to run
         their course before we can adjudicate the procedural due process
         claim. Indeed, the state adjudication of the takings claim is likely
         to moot this case, allowing us to avoid the constitutional question
         whether notice is required before a taking under the Due Process
         Clause. Conversely, a decision by this court that the church was
         entitled to the value of its demolished property would permit an
         end-run around Williamson County.

Rosedale, 641 F.3d at 91. Particularly relevant here, the Rosedale court noted
that “the state adjudication of the takings claim is likely to moot” the case
“where the injury that resulted from an alleged procedural due process
violation is merely a taking without just compensation.” Id. The instant case,
however, does not allege that the taking without just compensation was the
Appellants’ only injury. Appellants allege inadequate pre-deprivation due
process (which is itself actionable, see Carey, 435 U.S. at 266, 98 S. Ct. at 1054),
and economic injuries (from their constrained ability to redevelop the
property), and they seek equitable relief from the City’s bill for demolition
costs.
         The relevant inquiry then is whether the Appellants’ state law inverse
condemnation suit would afford a remedy for these additional injuries.
Article 1, Section 4 of the Louisiana Constitution states: “Property shall not be
taken or damaged by the state or its political subdivisions except for public
purposes and with just compensation paid to the owner . . . .” The Louisiana
Constitution explains that “[i]n every expropriation or action to take property
pursuant to the provisions of this Section . . . the owner shall be compensated
to the full extent of his loss.” La. Const. art. 1, § 4(B)(5). “[T]he full extent of
the loss shall include, but not be limited to, the appraised value of the property
and all costs of relocation, inconvenience, and any other damages actually
incurred by the owner because of the expropriation.” Id. The state supreme


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court recognized that an action for inverse condemnation arises out of the self-
executing nature of these provisions. Chambers Inv. Co., 595 So.2d at 602.
      In Chambers Investment Co., the Louisiana Supreme Court laid out a
three-pronged analysis for “determining whether a claimant is entitled to
eminent domain compensation” for “the taking and damaging of legal property
rights, as opposed to the concrete objects of rights . . . .” 595 So.2d at 603. A
plaintiff must show (1) a property right (“a recognized species of private
property right”); (2) the plaintiff’s property right was taken or damaged in a
constitutional sense; and (3) the taking or damage was for a public purpose.
Id. The court there held that unreasonable delay of an owner’s interest in
developing the property could be compensable. And in Mossy Motors, the court
applied the Chambers Investment test and upheld an award for business
interruption following an uncompensated taking.
      Although these cases indicate that Louisiana public entities’ liability for
takings claims is not limited to the value of the physical property, they do not
rebut the Appellants’ contention that their damages cannot be fully
compensated in state court. Whether the bill for demolition costs and a lien
therefor is a “taking or damage in the constitutional sense” is not answered by
Chambers. Further, the City has pointed to no case, and this court has found
none, suggesting that Appellants’ inverse condemnation action could result in
equitable relief from the post-demolition bill of costs and lien the City imposed
on the Appellants.     Indeed, the Louisiana Supreme Court has recently
reconfirmed that “[t]here is no specific formula set forth by the Legislature to
aid courts in determining the ‘full extent of the loss’” and noted that La. Rev.
Stat. Section 19:9 “provides limited guidance as to how to determine the ‘full




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extent of the loss.’” St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock
Port, Inc., 239 So.3d 243, 252-53 (La. 2018). 3
       Given the uncertainty of state law, this court is not convinced that an
inverse condemnation action would provide the same scope of damages
available to the Appellants under Carey v. Piphus to remedy their standalone
procedural due process injury, nor could it result in a damage judgment for or
equitable relief from the City’s lien for demolition costs. Accordingly, the
Appellants’ procedural due process claim is ripe and, unlike the situations in
John Corp. and Rosedale, does not overlap with their takings claim.
       II. Takings
       Appellants also argue that the district court erred in dismissing their
takings claim as unripe. First, the Supreme Court and this court have held
that Williamson County is a prudential doctrine, rather than a strict
jurisdictional bar. See Stop the Beach Renourishment, Inc. v. Florida Dep’t of
Envtl. Prot., 560 U.S. 702, 729, 130 S. Ct. 2592, 2610 (2010) (holding that an
argument that a claim is unripe because the aggrieved party has not sought
just compensation may be waived because it is not jurisdictional); Rosedale,
641 F.3d at 89 (“[T]he Supreme Court has since explicitly held that Williamson
County’s ripeness requirements are merely prudential, not jurisdictional.”).
Second, fairness and judicial economy justify a federal court’s hearing their
takings claim now. In response, the City reasserts that the district court
correctly applied Williamson County.
       Because this court has determined that the Appellants’ due process
claim is ripe, we agree it would be prudent to allow their takings claim to


       3 Section 19:9 directs a court to “include in its consideration [of the full extent of the
loss] the difference between the rate of interest of any existing mortgage on an owner-
occupied residence and the prevailing rate of interest required to obtain a mortgage on
another owner-occupied residence of equal value.”


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proceed in federal court. This court has not previously decided a case in which
prudential factors justified disregarding Williamson County’s state-litigation
requirement, but a line of Fourth Circuit cases doing so is persuasive. See
Town of Nags Head v. Toloczko, 728 F.3d 391, 399 (4th Cir. 2013) (“But
‘[b]ecause Williamson County is a prudential rather than a jurisdictional rule,
we may determine that in some instances, the rule should not apply and we
still have the power to decide the case.’ Exercise of such discretion may be
particularly appropriate to avoid ‘piecemeal litigation or otherwise unfair
procedures.’”) (quoting San Remo Hotel, L.P. v. San Francisco, 545 U.S. 323,
346, 125 S. Ct. 2491, 2506 (2005)); see also Quinn v. Bd. of Cty. Comm’rs,
862 F.3d 433, 439 & n.1 (4th Cir. 2017) (affirming a district court’s decision to
address a takings claim on the merits despite failure to pursue compensation
in state court “in the interests of fairness and judicial economy”). Toloczko is
particularly instructive. There, the Fourth Circuit exercised its discretion to
disregard Williamson County’s state litigation requirement where the
plaintiffs had a ripe Section 1983 due process claim. Toloczko, 728 F.3d at 398-
99 (“In the interests of fairness and judicial economy, we will not impose
further rounds of litigation on the Toloczkos.”). Fairness and judicial economy
would be similarly served in the instant case. Sending the Appellants’ takings
claim back to state court while their due process claim remains in federal court
would needlessly generate additional legal expenses for the parties and would
result in piecemeal litigation, which does not serve judicial economy.
Therefore, the district court erred by dismissing the Appellants’ takings claim
as unripe.
      III.   Unreasonable Seizure
      Finally, the Appellants contend that the district court applied an
improper framework to determine that their Fourth Amendment seizure claim



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is unripe. The Appellants contend that “[w]hen there is a completed seizure
and allegation of damages, as here, ripeness is not an issue because no further
events need to occur . . . .” Consequently, the district court’s reliance on the
four-part ripeness test from Severance v. Patterson, 566 F.3d 490, 500 (5th Cir.
2009) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149-55, 87 S. Ct. 1507,
1515-18 (1967)), is inapplicable to this case.
       We agree. The Appellants’ Fourth Amendment claim is plainly ripe.
Abbott Laboratories involved a pre-enforcement challenge to FDA regulations,
while in Severance, the plaintiff requested declaratory and injunctive relief to
prevent enforcement of a beachfront easement. See Abbott Labs., 387 U.S. at
139, 87 S. Ct. at 1510; Severance, 566 F.3d at 492-93. The four factors are not
necessary where, as here, the seizure has already occurred. The structure has
been demolished, the Appellants’ alleged injury is complete, and their Fourth
Amendment claim is ripe. 4            The district court erroneously dismissed the
Appellants’ Fourth Amendment claim.
                                     CONCLUSION
       For the reasons stated above, we VACATE the district court’s judgment
dismissing the Garretts’ complaint and REMAND for further proceedings
consistent with this opinion.




       4   We note that the availability of a takings claim does not necessarily subsume a
plaintiff’s ability to pursue a seizure claim as well. See Soldal v. Cook Cty., 506 U.S. 56, 70,
113 S. Ct. 538, 548 (1992) (“Certain wrongs affect more than a single right and, accordingly,
can implicate more than one of the Constitution’s commands. Where such multiple violations
are alleged, we are not in the habit of identifying as a preliminary matter the claims
‘dominant’ character. Rather, we examine each constitutional provision in turn.”); Severance,
566 F.3d at 502 (“The Fourth and Fifth Amendments, however, both provide specific
constitutional commands. That they may have evolved through caselaw to overlap in
providing remedies for some deprivations of property interests does not authorize this court
to fail to apply one or the other provision.”).


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