              Case: 14-10936     Date Filed: 01/29/2016   Page: 1 of 10


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-10936
                            ________________________

                     D.C. Docket No. 6:12-cv-00269-RBD-KRS

DAVID W. FOLEY, JR.,
JENNIFER T. FOLEY,

                                                               Plaintiffs-Appellants,
                                                                   Cross Appellants,

                                        versus

ORANGE COUNTY,
a political subdivision of the State of Florida,

                                                                Defendant-Appellee,
                                                                    Cross Appellee,
PHIL SMITH,
CAROL HOSSFIELD,
MITCH GORDON,
ROCCO RELVINI
TARA GOULD,
TIM BOLDIG, et al.,


                                                             Defendants-Appellees.
                            ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________
                                (January 29, 2016)
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Before TJOFLAT, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

       David Foley and his wife Jennifer Foley (the “Foleys”), proceeding pro se,

appeal from the District Court’s order granting partial summary judgment in favor

of defendant Orange County, Florida (the “County”) in a civil action on their

federal claims for violations of the Due Process Clause, U.S. Const. amend. XIV, §

1, the Equal Protection Clause, id., the First Amendment, U.S. Const. amend. I,

and the Fourth Amendment, U.S. Const. amend. IV. 1 Because we find that these

federal claims on which the District Court’s federal-question jurisdiction was

based are frivolous under Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939

(1946), we vacate the District Court’s orders.

                                               I.

       The relevant facts and procedural history of this case are fairly

straightforward. This case arose from a citizen complaint filed with the county

against the Foleys for breeding and selling toucans from their residentially zoned

property. In response to the complaint, county employees investigated and cited




       1
         The Foleys also alleged errors of state law and also appeal the grant of partial summary
judgment in favor of the County on those issues. The County also filed a cross-appeal
concerning the grant of partial summary judgment on one of the Foleys’ state-law claims.
Because we decide that the District Court did not have jurisdiction to consider the state-law
claims, we need not decide either the Foleys’ state-law appeal or the County’s cross-appeal.
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the Foleys for having accessory buildings on their property without the necessary

permits. These were the buildings the Foleys used to house the toucans.

       The Foleys then requested a determination from the county zoning manager

as to whether the ordinance under which the Foleys were cited was interpreted

properly. The zoning manager determined that the ordinance was interpreted

properly—that the Foleys were required under the ordinance to obtain permits for

the accessory buildings on their property. This determination was affirmed by the

Board of Zoning Adjustment, the Board of County Commissioners, the Florida

Ninth Judicial Circuit Court in and for Orange County, and the Fifth District Court

of Appeal.

       The Foleys then filed this action in federal court. Their complaint, which

they later amended,2 made various state and federal law claims against the County

and 19 individual County employees in their official and individual capacities.

Under state law, the Foleys again challenged the ordinance requiring permits for

the accessory buildings on their property, mainly contending that that ordinance

was preempted by Article IV, § 9 of the Florida Constitution, which grants the

Florida Fish and Wildlife Conservation Commission executive and regulatory

authority over captive wildlife. See Fla. Const. art. IV, § 9. Under federal law, the

Foleys sought damages pursuant to 42 U.S.C. § 1983 for violations of their federal

       2
         The District Court subsequently struck the Foleys’ amended complaint in its order
dismissing the federal and state law claims against the County Officials and County Employees.
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constitutional rights. These federal claims were the basis for federal-question

jurisdiction in the District Court.3 28 U.S.C. § 1331.

       After both parties moved for summary judgment, the District Court granted

partial summary judgment in favor of the Foleys on one of their state-law claims

and granted partial summary judgment to the County on the Foleys’ remaining

claims. The District Court also made various immunity rulings in relation to the

suits against the County employees. Most relevant here, the Foleys appeal the

grant of summary judgment against their four federal Constitutional claims based

on (1) substantive due process; (2) equal protection; (3) compelled and commercial

speech; and (4) illegal search and seizure.

                                                 II.

       “‘We review de novo questions concerning jurisdiction.’ We are ‘obligated

to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.’”

Weatherly v. Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013) (citation

omitted) (quoting Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (per

curiam) and Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)).

Where a District Court’s jurisdiction is based on a federal question, “a suit may

sometimes be dismissed . . . where the alleged claim under the Constitution or

federal statutes clearly appears to be immaterial and made solely for the purpose of

       3
          The District Court did not have diversity jurisdiction because all parties are Florida
residents. See 28 U.S.C. § 1332(a)(1).
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obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.”

Bell, 327 U.S. at 682–83, 66 S. Ct. at 776 (emphasis added). “Under the latter Bell

exception, subject matter jurisdiction is lacking only ‘if the claim has no plausible

foundation, or if the court concludes that a prior Supreme Court decision clearly

forecloses the claim.’” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d

1347, 1352 (11th Cir. 1998) (quoting Barnett v. Bailey, 956 F.2d 1036, 1041 (11th

Cir. 1992)).

      We will review each of the Foleys’ federal claims in turn. We “review

questions of constitutional law de novo.” Kentner v. City of Sanibel, 750 F.3d

1274, 1278 (11th Cir. 2014), cert. denied, 135 S. Ct. 950, 190 L. Ed. 2d 831 (2015)

(citing United States v. Duboc, 694 F.3d 1223, 1228 n.5 (11th Cir. 2012) (per

curiam)).

      The Foleys first allege violation of their substantive due process rights. The

Due Process Clause of the Fourteenth Amendment provides that no state shall

“deprive any person of life, liberty, or property, without due process of the law.”

U.S. Const. amend. XIV, § 1. Substantive due process protects the rights that are

fundamental and “implicit in the concept of ordered liberty.” Greenbriar Vill.,

L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (per curiam)

(quotation omitted) (quoting McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.

1994) (en banc)). Because property rights are not created by the Constitution, they

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are not fundamental rights. See id. “Substantive due process challenges that do

not implicate fundamental rights are reviewed under the ‘rational basis’ standard.”

Kentner, 750 F.3d at 1280–81 (applying rational basis standard to non-fundamental

rights). The rational basis test is highly deferential. Id. at 1281. “In order to

survive this minimal scrutiny, the challenged provision need only be rationally

related to a legitimate government purpose.” Schwarz v. Kogan, 132 F.3d 1387,

1390–91 (11th Cir. 1998) (citing TRM, Inc. v. United States, 52 F.3d 941, 945

(11th Cir. 1995)). Additionally, while substantive due process rights may protect

against arbitrary and irrational legislative acts, see Lewis v. Brown, 409 F.3d 1271,

1273 (11th Cir. 2005) (per curiam), there is no similar protection for non-

legislative acts. DeKalb Stone, Inc. v. Cty. of DeKalb, 106 F.3d 956, 959–60 (11th

Cir. 1997) (per curiam).

      Here, the Foleys vaguely allege a substantive due process violation—the

County’s upholding of the zoning manager’s final determination of the

interpretation of the ordinance. This is unavailing for either of two reasons: First,

because it implicated only property rights and was rationally related to a legitimate

government purpose. See Bannum, Inc. v. City of Fort Lauderdale, 157 F.3d 819,

822 (11th Cir. 1998); see also Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208,

1214–15 (11th Cir. 1995). Or, second, because enforcement of a valid zoning

ordinance is an executive—or non-legislative—act, which is not subject to

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substantive due process protections. See DeKalb Stone, Inc., 106 F.3d at 959–60.

Thus, this claim lacks merit.

      The Foleys next bring an equal-protection claim. Equal-protection claims

generally concern governmental classification and treatment that impacts an

identifiable group of people differently than another group of people. Corey

Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir.

2012) (per curiam). To establish a “class of one” equal protection claim, the

plaintiff must show that “[he] has been intentionally treated different from others

similarly situated and that there is no rational basis for the difference in treatment.”

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L.

Ed. 2d 1060 (2000) (per curiam); see also Grider v. City of Auburn, 618 F.3d 1240,

1263–64 (11th Cir. 2010). “To be similarly situated, the comparators must be

prima facie identical in all relevant respects.” Grider, 618 F.3d at 1264

(quotations omitted).

      The District Court properly granted summary judgment in favor of the

County because the Foleys cannot establish a “class of one” equal protection claim,

as they have failed to identify a similarly situated comparator that was intentionally

treated differently. Id.; Vill. of Willowbrook, 528 U.S. at 564, 120 S. Ct. at 1074.

Thus, this claim lacks merit.




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      The Foleys also bring a First Amendment claim styled as compelled and

commercial speech. The Speech Clause of the First Amendment provides that

“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.

amend. I. The First Amendment applies to state and local governments by its

incorporation through the Due Process Clause of the Fourteenth Amendment.

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1268 (11th Cir. 2004). The

First Amendment protects an individual against being compelled to express a

message in which he does not agree. Johanns v. Livestock Mktg. Ass’n, 544 U.S.

550, 557, 125 S. Ct. 2055, 2060, 161 L. Ed. 2d. 896 (2005). It also protects

commercial speech from unwarranted governmental regulation. Cent. Hudson Gas

& Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S. Ct. 2343,

2349, 65 L. Ed. 2d 341 (1980). The Supreme Court has defined commercial

speech as “expression related solely to the economic interests of the speaker and its

audience,” and noted that commercial speech is entitled to less constitutional

protection than other forms of speech. Id. at 561–63, 100 S. Ct. at 2349–50.

      The Foleys allege that their request for the zoning manager’s final

determination and their various appeals amount to compelled and commercial

speech. The Foleys’ voluntary actions do not constitute compelled or commercial

speech because neither do they amount to a government regulation that compelled

them to express a message in which they did not agree, see Johanns, 544 U.S. at

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557, 125 S. Ct. at 2060, nor are they commercial in nature. Cent. Hudson Gas &

Elec. Corp., 447 U.S. at 561, 100 S. Ct. at 2349. Thus, this claim lacks merit.

      Finally, the Foleys bring an illegal search and seizure claim. The Fourth

Amendment provides that individuals have the right “to be secure in their persons,

houses, papers, and effects, [and] against unreasonable searches and seizures.”

U.S. Const. amend. IV. “A seizure occurs when there is some meaningful

interference with an individual’s possessory interests in the property seized.”

Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 2782, 86 L. Ed. 2d 370

(1985) (quotations omitted). The Supreme Court has indicated that the voluntary

transfer of a possessory interest does not constitute a seizure under the Fourth

Amendment. See id. (concluding that the seller of magazines transferred his

possessory interest in the magazines upon voluntarily selling them).

      The Foleys allege that their voluntary request for a determination from the

zoning manager, subsequent fees paid to appeal that decision, and a potential

application for a special exception amount to an illegal seizure. These voluntary

actions plainly do not constitute a seizure under the Fourth Amendment. See id.

Thus, this claim lacks merit.




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       All of the Foleys’ federal claims 4 either “‘ha[ve] no plausible foundation, or

. . . [are clearly foreclosed by] a prior Supreme Court decision.’” Blue Cross &

Blue Shield of Ala., 138 F.3d at 1352 (quoting Barnett, 956 F.2d at 1041). The

District Court therefore lacked federal-question jurisdiction. Bell, 327 U.S. at 682–

83, 66 S. Ct. at 776. Without federal-question jurisdiction, the District Court did

not have jurisdiction to determine the state-law claims presented by the Foleys.

See 28 U.S.C. § 1331; 28 U.S.C. § 1332(a)(1).

       The District Court’s judgment is vacated and the case is remanded to the

District Court with instructions that the court dismiss this case without prejudice

for lack of subject matter jurisdiction.

       VACATED and REMANDED.




       4
          As the District Court noted, it would be theoretically possible for the Foleys to bring a
regulatory takings claim under 42 U.S.C. § 1983. “The application of an invalid land use
regulation may form the basis of a regulatory takings claim.” Foley v. Orange Cty., No. 6:12-cv-
269-Orl-37KRS, 2012 WL 6021459, at *7 (M.D. Fla. Dec. 4, 2012). Although the District Court
order explained how the Foleys could properly make such a claim, see id., they did not make
such a claim in their second amended complaint. See Foley v. Orange Cty., No. 6:12–cv–269–
Orl–37KRS, 2013 WL 4110414, at *9 n.13 (M.D. Fla. Aug. 13, 2013) (noting that the Foleys
“have refused to characterize their challenge as a regulatory takings claim”). At any rate, even
positing such a claim, the claim would likely not be ripe because the Foleys do not appear to
have pursued a permit, retroactively or otherwise, for the accessory structure. See Agripost, Inc.
v. Miami-Dade Cty. ex rel. Manager, 195 F.3d 1225, 1229–30 (11th Cir. 1999) (requiring parties
to pursue administrative remedies before bringing a regulatory takings claim). The Foleys have
instead challenged the interpretation and application of the zoning ordinances.
                                                10
