                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                                   In the                                July 28, 2003
                United States Court of Appeals                     Charles R. Fulbruge III
                          for the Fifth Circuit                            Clerk
                              _______________

                                m 02-40880
                                m 02-41155
                              _______________




  CARL MONK; CONSTANCE MONK; PATRICK MCBRIDE; GARY GRAYBEAL;
  JIM LOERCH; CHRIS LOTT; DARLENE LOTT; DAVID BROCK; KAY GLANDT;
     PATRICIA WRIGHT-COMBS; KAREN CAUDLE MUDD; DARIO GARCIA;
CHESTER BIENIK; JOY BRACEY; TED HOLLINGSWORTH; AND JOHNNIE JENNINGS,

                                                Plaintiffs-Appellees,

                                  VERSUS

                      ROBERT J. HUSTON, ETC., ET AL.,

                                                Defendants,

                            ROBERT J. HUSTON,
                          IN HIS OFFICIAL CAPACITY AS
      CHAIRMAN OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
                           R.B. RALPH MARQUEZ,
                          IN HIS OFFICIAL CAPACITY AS
    COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
                        KATHLEEN HARTNET WHITE,
                          IN HER OFFICIAL CAPACITY AS
    COMMISSIONER OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION;
                                    AND
                                JEFF SAITAS,
                           IN HIS OFFICIAL CAPACITY AS
THE EXECUTIVE DIRECTOR OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION,


                                                Defendants-Appellants.
                                      _________________________

                               Appeal from the United States District Court
                                   for the Southern District of Texas
                                    _________________________



Before SMITH, DENNIS, and CLEMENT,                          tion via administrative proceedings before the
  Circuit Judges.                                           State Office of Administrative Hearings
                                                            (“SOAH”), to which the matter had been re-
JERRY E. SMITH, Circuit Judge:                              ferred for adjudication.

   Defendant officials of the Texas Commis-                     In April 2002, plaintiffs sued, alleging vio-
sion on Environmental Quality (“TCEQ”) ap-                  lations of their rights under the Fifth and Four-
peal (1) a preliminary injunction precluding                teenth Amendments. Contending that no as-
them from considering a landfill permit appli-              certainable standards exist to guide the agen-
cation and (2) the denial of their motion to dis-           cy’s ultimate determination whether to ap-
miss. Concluding that this dispute is not ripe              prove the application, plaintiffs sought prelim-
for adjudication, we vacate the injunction and              inary and permanent injunctions barring Robert
reverse and remand.                                         Huston, the presiding officer of the TCEQ;
                                                            Ralph Marquez and Kathleen White, TCEQ
                        I.                                  commission officers; Margaret Hoffman, the
   In 1996, TSP Development, Limited, a                     TCEQ Executive director; and Sheila Taylor,
Texas limited partnership, filed a permit ap-               director of the SOAH (collectively “defen-
plication with the TCEQ requesting approval                 dants” or “agency defendants”), from further
to construct a landfill facility capable of han-            considering the application until additional
dling three classes of nonhazardous industrial              rules and regulations governing NISW landfills
solid waste (“NISW”), the most noxious of                   are promulgated.
which is Class I.1 Plaintiffs, who are owners
or occupiers of land within one mile of the                     The agency defendants filed a motion to
proposed landfill, actively opposed the applica-            dismiss and a response in opposition to the ap-
                                                            plication for preliminary injunction; the court
   1
                                                            denied the motion and issued the preliminary
      Class I NISW is industrial solid waste that           injunction. The agency defendants appeal the
does not meet the definition of hazardous waste             preliminary injunction under 28 U.S.C.
promulgated by the EPA but, because of its con-
                                                            § 1292(a)(1), and they appeal the denial of
centration or physical or chemical characteristics,
is toxic, corrosive, flammable, a strong sensitizer
                                                            their motion to dismiss pursuant to the district
or irritant, or a generator of sudden pressure by de-       court’s certification of that order under
composition, heat, or other means, and may pose a           § 1292(b) and this court’s grant of permission
substantial present or potential danger to human            to take an interlocutory appeal.
health or the environment if improperly processed,
stored, transported, or otherwise managed. See                                     II.
TEX. HEALTH & SAFETY CODE § 361.003(2)-(3).

                                                        2
   Defendants contend that the district court             Bank, 473 U.S. 172, 199-200 (1985)).
erred in exercising jurisdiction, because the
matter was not yet ripe for resolution. We re-                As plaintiffs note, however, Hidden Oaks
view ripeness determinations de novo.                     Ltd. v. City of Austin, 138 F.3d 1036 (5th Cir.
Groome Res. Ltd., L.L.C. v. Parish of                     1998), limits Smith’s application here. In Hid-
Jefferson, 234 F.3d 192, 198-99 (5th Cir.                 den Oaks, id. at 1045 n.6, we held that
2000).                                                    procedural due process claims not arising from
                                                          or ancillary to a takings claim are not subject
    “A court should dismiss a case for lack of            to the ripeness constraints set forth in Wil-
‘ripeness’ when the case is abstract or hypo-             liamson. Because the instant plaintiffs have
thetical.” New Orleans Pub. Serv., Inc. v.                not asserted a takings claim, the ripeness test
Council of New Orleans, 833 F.2d 583, 586                 articulated in Williamson County and applied
(5th Cir. 1987). “The key considerations are              in Smith does not control.
‘the fitness of the issues for judicial decision
and the hardship to the parties of withholding               This does not end the ripeness inquiry,
court consideration.’” Id. (quoting Abbott                however. Although plaintiffs’ claim need not
Labs. v. Gardner, 387 U.S. 136, 149 (1967)).              satisfy the specific test applicable to takings
“A case is generally ripe if any remaining ques-          claims, it still must comply with the principles
tions are purely legal ones; conversely, a case           governing ripeness determinations generally.3
is not ripe if further factual development is             Those principles direct courts “[to] dismiss a
required.”2                                               case for lack of ‘ripeness’ when the case is ab-
                                                          stract or hypothetical.” New Orleans Pub.
     In Smith v. City of Brenham, 865 F.3d 662            Serv., Inc. v. Council of New Orleans, 833
(5th Cir. 1989), this court addressed similar             F.2d 583, 586 (5th Cir. 1987). In making this
claims: Plaintiffs alleged that the city’s at-            determination, “[t]he key considerations are
tempts to obtain approval to operate a landfill           ‘the fitness of the issues for judicial decision
constituted an uncompensated taking and vio-              and the hardship to the parties of withholding
lated their rights to due process. Id. at 663.            court consideration.’”4 “A case is generally
We concluded that the due process challenge               ripe if any remaining questions are purely legal
to landfill permitting procedures by adjacent             ones; conversely, a case is not ripe if further
property owners was “premature” where “[n]o               factual development is required.” Id. at 587.
deprivation of property . . . ha[d] yet occurred
. . . . [and] certainly [would] not occur at least           Under these principles, this dispute is not
until the permit process . . . ha[d] run its
course.” Id. at 664 (citing Williamson County
Regional Planning Comm’n v. Hamilton                         3
                                                               See John Corp. v. City of Houston, 214 F.3d
                                                          573, 586 (5th Cir. 2000) (“In determining that
                                                          [plaintiffs’] procedural due process claim is unripe,
   2
     Id.; see also Texas v. United States, 523 U.S.       we do not apply Williamson County per se, but
296, 300 (1998) (“A claim is not ripe for adju-           rather the general rule that a claim is not ripe if
dication if it rests upon contingent future events        additional factual development is necessary.”).
that may not occur as anticipated, or indeed may
                                                             4
not occur at all” (citation and internal quotation             Id. at 586-87 (quoting Abbott Labs. v. Gard-
marks omitted)).                                          ner, 387 U.S. 136, 149 (1967)).

                                                      3
ripe for judicial resolution. The plaintiffs con-                The injunction is VACATED, and this mat-
tend they have been injured by TCEQ’s failure                ter is REVERSED and REMANDED for any
to afford them due process in its consideration              necessary proceedings.8
of the landfill permit. The constitutional right
to due process is not, however, an abstract
right to hearings conducted according to fair
procedural rules. Rather, it is the right not to
be deprived of life, liberty, or property without
such procedural protections.5

   Even assuming plaintiffs have identified
constitutionally protected property interests
that would be harmed by approval of the per-
mit application, they have not suffered any de-
privation, because the TCEQ permitting pro-
cess has not yet run its course. The
application may or may not be granted, and
thus plaintiffs may or may not be harmed.
Therefore, until the TCEQ issues the permit,
this disput e remains “abstract and
hypothetical”6 and thus unripe for judicial
review.7


   5
     U.S. CONST. amend. XIV, § 1; see Baldwin v.
Daniels, 250 F.3d 943, 946 (5th Cir. 2001) (“To
bring a procedural due process claim under § 1983,
a plaintiff must first identify a protected life,
liberty or property interest and then prove that
governmental action resulted in a deprivation of
that interest.”); Johnson v. Morris, 903 F.2d 996,
999 (4th Cir. 1990) (“In order to claim entitlement
to the protections of the due process clause . . . a
plaintiff must first show that he has a
constitutionally protected ‘liberty’ or ‘property’ in-
terest, and that he has been ‘deprived’ of that pro-
tected interest by some form of ‘state action.’”
(citation and internal quotation marks omitted)).
                                                                7
                                                                  (...continued)
   6
       New Orleans Pub. Serv., 833 F.2d at 586.              occur as anticipated, or indeed may not occur at
                                                             all.” (citation and internal quotation marks
   7
    See Texas v. United States, 523 U.S. 296, 300            omitted)).
(1998) (“A claim is not ripe for adjudication if it
                                                                8
rests upon contingent future events that may not                 The motion to dismiss for mootness is
                                    (continued...)           DENIED.

                                                         4
