          United States Court of Appeals
                      For the First Circuit

No. 15-1553

                       PERFECT PUPPY, INC.,

                      Plaintiff, Appellant,

                                v.

              CITY OF EAST PROVIDENCE, RHODE ISLAND,

                       Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND
          [Hon. William E. Smith, U.S. District Judge]



                              Before
                       Howard, Chief Judge,
               Selya and Thompson, Circuit Judges.



     J. David Breemer, with whom Pacific Legal Foundation, Lesley
S. Rich, and Rich Law Associates, were on brief for appellant.
     Marc DeSisto, with whom Kathleen M. Daniels, DESISTO LAW, and
Timothy J. Chapman, City Solicitor, City of East Providence, were
on brief, for appellee.
     Michael G. Bongiorno, Ian Coghill, and Wilmer Cutler
Pickering Hale and Dorr LLP on brief for The Humane Society of the
United States, amicus curiae.



                         December 8, 2015
            THOMPSON, Circuit Judge.

                                     Prologue

            We write today about a suit started in state court and

removed to federal court.           As relevant here, Perfect Puppy, Inc.

(our plaintiff) believes it has a rock-solid facial- and as-

applied-takings claim against the City of East Providence (our

defendant) based on a city ordinance banning dog and cat sales.1

A district judge, though, gave any supposed facial claim the boot

on summary judgment for lack of development and remanded the as-

applied     claim      to   state   court     for   lack   of    subject-matter

jurisdiction.       An unhappy Perfect Puppy appeals.            But we see no

error     with   the    judge's     facial-takings     ruling    and   have   no

jurisdiction over the judge's remand order — a dual appraisal that

leads us to affirm in part and dismiss in part.                 We will explain

our thinking shortly.         First, some background.




1 For anyone not in the know: A facial-takings challenge involves
a claim that the ordinance's mere enactment amounts to a taking by
"'den[ying] an owner economically viable use'" of his property.
Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S.
264, 295-96 (1981) (quoting Agins v. Tiburon, 447 U.S. 255, 260
(1980)). An as-applied-takings challenge, contrastingly, involves
a claim that an ordinance's impact "on a specific piece of property
requires the payment of just compensation." Keystone Bituminous
Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494 (1987).
                                      - 2 -
                        How the Case Got Here

           2014 was certainly a whirlwind year for Perfect Puppy.

On April 26, Perfect Puppy signed a lease to use an East Providence

building for a "Puppy Sales store" (a quote from the lease), which

is the only use permitted by the lease.            About a month later,

though, on May 20, the East Providence city council introduced and

preliminarily passed an ordinance banning dog and cat sales — we

say   "preliminarily"   because    the     ordinance   required   a   second

passage to become effective.       The next day, May 21, Perfect Puppy

both received a state "PET SHOP" license (a quote from the license)

and opened its doors for business.          But whatever excitement its

owners must have felt quickly vanished after the city council

formally passed the ordinance on June 3.

           Not willing to take this lying down, Perfect Puppy sued

East Providence in state court, claiming (among other things) that

the   ordinance   infracts   the    equal-protection     and   due-process

clauses of the state and federal Constitutions and the commerce

clause of the federal Constitution.          East Providence removed the

case to federal court on federal-question grounds.          See 28 U.S.C.

§§ 1441(a), 1331.   Perfect Puppy then amended its complaint to add

a claim that the ordinance so constricted its property rights as

to constitute a regulatory taking, requiring just compensation

under the takings clauses of the state and federal Constitutions.

                                   - 3 -
             The parties eventually cross-moved for summary judgment

on stipulated facts.     After denying Perfect Puppy's motion, the

district judge granted East Providence summary judgment on all

claims except the takings claim.           As for any possible facial-

takings challenge, the judge concluded that Perfect Puppy had not

developed one: Perfect Puppy's passing comment in a fairly lengthy

summary-judgment memo — that it "would . . . argue that this taking

was categorical in nature, and [Perfect Puppy] should be per se

compensated" (a statement which for simplicity's sake we will call

the   single-sentence   comment)    —   was    not   enough   to   conclude

otherwise.    Taking a belt-and-suspenders approach, the judge also

wrote that "[i]nsofar as" Perfect Puppy's single-sentence comment

"constitutes a facial taking claim, it . . . would fail here

because [Perfect Puppy] has not demonstrated that the enactment of

the   ordinance    categorically    deprives     its   property    of   any

economically viable use."     And noting that Perfect Puppy had not

asked the state for compensation, the judge deemed the as-applied

challenge unripe and so remanded the suit to state court for lack

of subject-matter jurisdiction.

             Which brings us to today, with Perfect Puppy contesting

only the judge's handling of the takings claim by attacking his

analysis on multiple fronts.



                                   - 4 -
                            Facial Takings

             Perfect Puppy spends a good deal of time (both orally

and in writing) trying to convince us that it actually asserted a

facial-takings claim below. Color us unconvinced. As the district

judge correctly suggested, Perfect Puppy's single-sentence comment

— i.e., that it "would . . . argue that this taking was categorical

in nature, and [Perfect Puppy] should be per se compensated" —

hardly suffices, given how Perfect Puppy fleetingly floated the

idea below without any analysis or citation.               If this is not

perfunctory treatment, we do not know what is.         And we have long

made clear that judges need not entertain such ill-developed

arguments.    See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (holding that "[i]t is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to

do counsel's work"); see also Town of Norwood v. Fed. Energy

Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000) (stressing

that   "developing   a   sustained   argument   out   of    .   .   .   legal

precedents" is the parties' job, not the court's); Sammartano v.

Palmas del Mar Props., Inc., 161 F.3d 96, 97 (1st Cir. 1998)

(explaining "our well-established rule that arguments may not be

raised for the first time on appeal"); United States v. Slade, 980

F.2d 27, 31 (1st Cir. 1992) (emphasizing that "a party is not at

liberty to articulate specific arguments for the first time on

                                 - 5 -
appeal simply because the general issue was before the district

court").

           Seeking a way around the problem, Perfect Puppy talks up

cases — e.g., United States v. Williams, 504 U.S. 36, 43-44 (1992)

— saying that reviewing courts can review an issue not pressed

below if the lower court expressly decided the issue anyway.            That

is pretty much our situation, Perfect Puppy basically says, given

how the judge did write that "[i]nsofar as" Perfect Puppy's single-

sentence   comment   might    somehow    constitute    a    facial-takings

challenge, it would not get off the ground. We see it differently,

however:   The judge's "insofar as" lingo is a pretty big tip-off

that he did not explicitly decide that Perfect Puppy had indeed

made a facial-takings claim.          Actually — and at the risk of

repeating ourselves — the judge found the opposite. And it strains

belief to conclude — as Perfect Puppy has — that the judge then

opted to take a claim he did not espy and resolve it on the merits.

Needless to say, Perfect Puppy's maneuvering does not do the trick.

           In something of a last gasp, Perfect Puppy argues that

it "necessarily raise[d] a facial takings claim" because its

amended complaint asked for declaratory relief.            This seems like

a   mischaracterization   —   after   all,   Perfect   Puppy    asked    for

declaratory relief in the takings count's heading, but not in that

count's allegations or prayer-for-relief sections.            Even putting

                                 - 6 -
all that aside, though, we know that a litigant can ask for

declaratory relief as part of an as-applied-takings challenge too.

See, e.g., García-Rubiera v. Calderón, 570 F.3d 443, 453 (1st Cir.

2009).     Obviously, then, simply asking for declaratory relief

somewhere in the complaint does not mean that a party has brought

a facial challenge.

            Enough said on that subject.

                                 As-Applied Takings

            Perfect Puppy asks us to review and reverse the judge's

decision characterizing the as-applied-takings claim as unripe

(because    Perfect      Puppy     did   not   exhaust   state    remedies)      and

remanding the remainder of the case to state court on this ground.

Unfortunately for Perfect Puppy, the insuperable obstacle to doing

so is that we lack appellate jurisdiction.

                                 Summarizing the Law

            28    U.S.C.     §    1447(d)     provides   (with    exceptions     not

relevant here) that "[a]n order remanding a case to the State court

from    which    it    was   removed     is    not   reviewable    on   appeal    or

otherwise."2          Despite the straightforwardness of its language




2   Section 1447(d) reads in full:
       An order remanding a case to the State court from which
       it was removed is not reviewable on appeal or otherwise,
       except that an order remanding a case to the State court
       from which it was removed pursuant to section 1442 or
                                 - 7 -
(banning review by appeal or by any other means dreamt up by

imaginative counsel), section 1447(d), our judicial superiors tell

us, affects only remands under 28 U.S.C. § 1447(c) — a statute

that says (among other things) that "[i]f at any time before final

judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded."3      See, e.g., Powerex

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007)

(noting that Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

336, 343 (1976), held that courts must read section 1447(d) in

conjunction with section 1447(c)4).     So, not to put too fine a



       1443 of this title shall be reviewable by appeal or
       otherwise.
3   The complete quote is:
       A motion to remand the case on the basis of any defect
       other than lack of subject matter jurisdiction must be
       made within 30 days after the filing of the notice of
       removal under section 1446(a). If at any time before
       final judgment it appears that the district court lacks
       subject matter jurisdiction, the case shall be remanded.
       An order remanding the case may require payment of just
       costs and any actual expenses, including attorney fees,
       incurred as a result of the removal. A certified copy
       of the order of remand shall be mailed by the clerk to
       the clerk of the State court. The State court may
       thereupon proceed with such case.
4 Regarding Thermtron's holding — that circuit courts can review
cases remanded on grounds having nothing to do with section
1447(c), despite section 1447(d) — not every Justice has been a
fan. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 642
(2009) (Stevens, J., concurring); id. at 642-43 (Scalia, J.,
concurring); see also Osborn v. Haley, 549 U.S. 225, 263-64 (2007)
(Scalia, J., joined by Thomas, J., dissenting); see also Townsquare
Media, Inc. v. Brill, 652 F.3d 767, 772-73 (7th Cir. 2011)
                               - 8 -
point on it, this means (at least for our purposes) that section

1447(d) definitely bars appellate review of remand orders based on

lack of subject-matter jurisdiction.

              As for why section 1447(d) is on the books, we know that

Congress      passed     this     proviso    to    curb   the    delay    caused   by

interlocutory review of orders shifting cases from federal to state

courts — review that does nothing to resolve the cases on the

merits, by the way.        See, e.g., Kircher v. Putnam Funds Trust, 547

U.S.   633,      640    (2006).      Consistent      with    that      objective   and

"assuming" section 1447(d) lets us peek behind the judge's declared

reason     for    the    remand,     we     look   only     to   see    whether    his

"characterization of" the remand as being covered by section

1447(c) is "colorable" — i.e., that the "legal ground" for the no-

subject-matter-jurisdiction               conclusion        is   "plausible"       or

"debatable."       See Powerex Corp., 551 U.S. at 233-34.                  And if it

is, the order is not reviewable, even if the judge's determination

is wrong.      See id. (explaining that "[l]engthy appellate disputes



(indicating that "the Justices have qualms about the rule," because
"[a] footnote in the Carlsbad opinion" — 556 U.S. at 638 n* —
"states that the Court will 'not revisit today whether Thermtron
was correctly decided,'" since "'neither the brief for petitioner
nor the brief for respondents explicitly asked the Court to do so
here,'" which suggests that "[h]ad they asked, the Court might
have obliged, for it said it wouldn't revisit the Thermtron
decision today"). Of course we remain bound by Thermtron until
the day (if it ever comes) the Court tells us we are not. See,
e.g., Hicks v. Miranda, 422 U.S. 332, 345 (1975).
                                          - 9 -
about whether an arguable jurisdictional ground invoked by the

district court was properly such would frustrate the purpose of

§ 1447(d)"); Kircher, 547 U.S. at 641-42 (commenting that "[t]he

District Court said that it was remanding for lack of jurisdiction,

an unreviewable ground, and even if it is permissible to look

beyond the court's own label" — in a footnote, id. at 641 n.9, the

Court left that possibility open — "the orders are unmistakably

premised on the view that . . . the court had no subject-matter

jurisdiction,"       and    adding   that   if   "'the   order    is     based   on

[§ 1447(c)'s grounds], review is unavailable no matter how plain

the legal error in ordering the remand'" (quoting Briscoe v. Bell,

432 U.S. 404, 413-14 n.13 (1977)).5

                               Applying the Law

            Turning from generalities to specifics, we see that the

judge remanded what was left of Perfect Puppy's case to state court

for lack of subject-matter jurisdiction.           We know this because the

judge   —   citing    and    quoting   section   1447(c)   —     ruled    that   he

"lack[ed] subject matter jurisdiction" here.                   This is how he

reached that conclusion (we simplify things slightly, repeating

some of what we said earlier):              The Constitution does not ban



5 See also Thermtron, 423 U.S. at 343; Harvey v. UTE Indian Tribe
of the Uintah & Ouray Reservation, 797 F.3d 800, 807 (10th Cir.
2015); Townsquare, 652 F.3d at 775-76; Price v. J & H Marsh &
McLennan, Inc., 493 F.3d 55, 61 (2d Cir. 2007).
                                       - 10 -
takings, but only takings without just compensation.                        See, e.g.,

Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S.

172, 194 (1985) (Williamson, for short).                    And if the state offers

adequate       procedures       for     seeking   just   compensation      (and    Rhode

Island does), then there is no constitutional infraction — and no

takings claim is ripe — until the litigant asks the government for

fair payment and is denied.                   See id. at 195; see also Marek v.

Rhode Island, 702 F.3d 650, 653 (1st Cir. 2012).                          We will call

this     the     state-exhaustion          requirement,      for   easy      reference.

Anyhow, noting that Perfect Puppy never asked East Providence for

just compensation, the judge ruled its takings claim not ripe —

which, he also ruled, deprived him of subject-matter jurisdiction

and     which    then     led      to    the    remand   under     section      1447(c).

Critically, one of our cases — Downing/Salt Pond Partners, L.P. v.

Rhode Island & Providence Plantations, 643 F.3d 16, 20 (1st Cir.

2011)     —     does    describe        the    state-exhaustion     requirement       as

jurisdictional.         And given this concatenation of circumstances, we

conclude that the lack-of-jurisdiction ground for the remand was

colorable — which means that section 1447(d)'s appellate-review

bar applies with full force.               See, e.g., Powerex, 551 U.S. at 234;

Kircher,       547     U.S.   at      641-42;     Harvey,    797   F.3d    at    807-08;

Townsquare, 652 F.3d at 775-76; Price, 493 F.3d at 61.



                                           - 11 -
              Though convinced that Downing gave the judge a colorably

jurisdictional basis for the remand, we confess that we are not

100%   sure    that    the       state-exhaustion    requirement        actually   is

jurisdictional.        Williamson itself never called its requirements

jurisdictional.        And as Perfect Puppy is quick to point out, the

Supreme Court recently described the state-exhaustion requirement

as a prudential principle rather than a jurisdictional limitation.

See Horne v. Dep't of Agric., 133 S. Ct. 2053, 2062 (2013) (noting

that the state-exhaustion requirement "is not, strictly speaking,

jurisdictional"); see also Stop the Beach Renourishment, Inc. v.

Florida Dep't of Envtl. Prot., 560 U.S. 702, 729 & n.10 (2010)

(saying   in     a    facial-takings      case    that    the       state-exhaustion

requirement     is    not    jurisdictional);       Suitum     v.    Tahoe   Regional

Planning Agency, 520 U.S. 725, 733–34 (1997) (calling the state-

exhaustion requirement a "prudential ripeness" hurdle).6

              But make no mistake:            Even assuming — for argument's

sake — that a party's failure to satisfy the state-exhaustion

requirement     is    not    a    colorable    ground    for    a   subject-matter-




6 Other circuits, for what it is worth, have read recent Supreme
Court cases as holding that the state-exhaustion requirement is
not jurisdictional. See, e.g., Sherman v. Town of Chester, 752
F.3d 554, 561 (2d Cir. 2014) (citing Sansotta v. Town of Nags Head,
724 F.3d 533, 545 (4th Cir. 2013)); Rosedale Missionary Baptist
Church v. New Orleans City, 641 F.3d 86, 88-89 & n.2 (5th Cir.
2011).
                                        - 12 -
jurisdiction remand, we would still affirm the judge's order here

on the merits.      In its lower-court filings, Perfect Puppy only

argued that the state-exhaustion requirement holds no sway because

East Providence removed the case to federal court.                  True, a

government defendant's removal of a case from state court may waive

otherwise valid objections to litigation in a federal forum.           See,

e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.

613, 624 (2002).7    That, however, is not a problem here, given how

Perfect Puppy added its takings claims after removal.               Perfect

Puppy   raises   other   arguments   aimed   at   derailing   the    state-

exhaustion requirement.      But they were not developed below and

thus need not be considered here.      See Slade, 980 F.2d at 31.

             Rejecting Perfect Puppy's Other Arguments

           Shifting gears, Perfect Puppy notes that section 1447(d)

says (emphasis Perfect Puppy's) that "[a]n order remanding a case

to the State court from which it was removed is not reviewable."

And it insists that this proviso cannot apply here because the



7A state-university professor there sued the state, asserting both
federal- and state-law claims. Id. at 616. The state removed the
case to federal court and then moved to dismiss based on Eleventh-
Amendment immunity.     Id. at 616-17.       Noting that it was
inconsistent for the state to invoke federal jurisdiction by
removal, only to turn around and argue that the Eleventh Amendment
deprived the court of jurisdiction, the Supreme Court held that
removing the case was affirmative litigation conduct by which the
state waived its Eleventh-Amendment immunity.     See id. at 619,
624.
                                - 13 -
takings claim was not removed from state court — again, Perfect

Puppy added the claim after East Providence removed the suit.             But

Perfect Puppy conveniently overlooks that the statute focuses on

the "case . . . removed," not on the claims removed.              And Perfect

Puppy neither cites any case supporting its position (we know of

none, frankly) nor offers a persuasive explanation of what the law

should be (assuming it unearthed no on-point case).                  So that

argument is waived.        See, e.g., Muñiz v. Rovira, 373 F.3d 1, 8

(1st Cir. 2004) (deeming waived skeletal arguments unaccompanied

by "citation to any pertinent authority").

             Ever    persistent,   Perfect     Puppy    also   suggests   that

section 1447(c) allows remand only when jurisdiction is lacking at

the   time    of    removal.   Because   the    judge    had   subject-matter

jurisdiction when East Providence removed the case — Perfect Puppy

added the (unripe) takings claim after removal (we say for the

umpteenth time) — the remand was not a subject-matter-jurisdiction

remand, meaning section 1447(d)'s appellate-review bar does not

apply.       Or so Perfect Puppy intimates.             But section 1447(c)

requires district judges to remand for lack of subject-matter

jurisdiction "at any time," which means section 1447(d) bars

appellate review of subject-matter-jurisdiction remands made "at

any time."      That is what the Supreme Court said in Powerex, 551

U.S. at 232 (seeing nothing in section 1447(c)'s text suggesting

                                   - 14 -
that that provision "covers only cases in which removal itself was

jurisdictionally improper," and holding "that when a district

court remands a properly removed case because it nonetheless lacks

subject-matter jurisdiction, the remand is covered by § 1447(c)

and thus shielded from review by § 1447(d)"). Consequently Perfect

Puppy's intimation is incorrect.

             Taking yet another tack, Perfect Puppy notes that the

high Court in Quackenbush v. Allstate Insurance Co. held that

section 1447(d) does not ban appellate review of an abstention-

based remand intended to let a state court resolve hotly contested

points of state law.      See 517 U.S. 706, 710-12 (1996) (reviewing

a remand ordered based on "Burford abstention"8).              And Perfect

Puppy    thinks   that   the   remand   order   here   is   just   like   the



8 Burford abstention takes its name from Burford v. Sun Oil Co.,
319 U.S. 315 (1943). The doctrine tells federal courts "sitting
in equity" not to interfere with "proceedings or orders of state
administrative agencies" when "timely and adequate state-court
review is available" and
        (1) when there are "difficult questions of state law
        bearing on policy problems of substantial public import
        whose importance transcends the result in the case then
        at bar"; or (2) where the "exercise of federal review of
        the question in a case and in similar cases would be
        disruptive of state efforts to establish a coherent
        policy with respect to a matter of substantial public
        concern."
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 361 (1989) (quoting Colo. River Water Conserv. Dist.
v. United States, 424 U.S. 800, 814 (1976)).
                                  - 15 -
abstention-based     remand   in    Quackenbush,    because   both   remands

effectively "put[]" a party "out of federal court."               Ergo, its

argument continues, section 1447(d) does not foreclose appellate

review.      But an abstention-based remand is not a section-1447(c)-

based remand — Quackenbush itself says so.            See 517 U.S. at 712

(emphasizing that the district judge's "abstention-based remand

order does not fall into either category of remand order described

in § 1447(c), as it is not based on lack of subject matter

jurisdiction or defects in removal procedure").            And even a quick

scan of the remand order here shows that lack of subject-matter

jurisdiction — a section-1447(c) ground, as we have taken pains to

make plain — is the "only . . . plausible explanation" for what

put Perfect Puppy out of federal court (the order contains not

even   the    slightest   whisper    of   a   suggestion   that   abstention

principles played any role), making the order beyond the power of

appellate review.     See Powerex, 551 U.S. at 233.

                                   Epilogue

              With that and at long last, we affirm the judge's

handling of the facial-takings issue, and we dismiss the appeal

for lack of jurisdiction as to that part of the judge's order

remanding the as-applied claim to state court. Costs to East

Providence.



                                    - 16 -
