                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                          File Name: 06a0269a.06


                      UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                           _____________


                                                     X
                                                      -
 RICHARD F. DAVET,
                                                      -
                                       Plaintiff-Appellant,
                                                      -
                                                      -
           v.                                             No. 05-3832

                                                      ,
                                                       >
                                                      -
 CITY OF CLEVELAND, ROBERT VILKAS and CITY OF

                                                      -
 CLEVELAND DEPARTMENT OF BUILDING &
                            Defendants-Appellees. -
 HOUSING,

                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                     No. 03-01623—John M. Manos, District Judge.
                                       Submitted: April 19, 2006
                                 Decided and Filed: August 1, 2006
    Before: BOGGS, Chief Judge; SUTTON, Circuit Judge; SCHWARZER, District Judge.*
                                          _________________
                                               COUNSEL
ON BRIEF: David P. Bertsch, BUCKINGHAM, DOOLITTLE & BURROUGHS, Akron, Ohio,
Walter A. Lucas, BUCKINGHAM, DOOLITTLE & BURROUGHS, Cleveland, Ohio, for
Appellant. Michael F. Cosgrove, CITY OF CLEVELAND LAW DEPARTMENT, Cleveland, Ohio,
for Appellees.
                                       _____________________
                                        AMENDED OPINION
                                       _____________________
        SUTTON, Circuit Judge. In 2003, the City of Cleveland condemned, then partially
demolished, a building owned by Richard Davet. In response, Davet filed a lawsuit in state court
against the city and several other defendants, alleging that the demolition violated the Takings, the
Due Process and the Equal Protection Clauses of the United States Constitution. The defendants
filed a counterclaim seeking an injunction (compelling Davet to remedy the code violations or
complete the demolition) and over $16,000 in damages for the cost of the partial demolition. The


        *
          The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of
California, sitting by designation.


                                                     1
No. 05-3832           Davet v. City of Cleveland et al.                                       Page 2


defendants removed the case to federal court and eventually filed a motion for summary judgment.
The district court granted the defendants’ motion, and Davet appealed. We affirm.
                                                  I.
        On March 6, 2003, City of Cleveland building inspectors examined a building owned by
Richard Davet in Cleveland, Ohio. The inspectors found numerous violations of the Cleveland
Building and Housing Code, including “deteriorated” roofing, walls, floor and stairs. As a result,
the city posted a condemnation notice on the front door of the building that same day, giving Davet
until the following day, March 7, 2003, to remedy the code violations or face the risk that the city
would demolish the building. Davet discovered the notice on March 10, 2003, and promptly filed
an appeal with the city’s Board of Building Standards. The appeal triggered an automatic stay,
which prevented the city from demolishing the building until the Board had decided the appeal.
       The city, however, asked the Board to lift the automatic stay because the building posed an
“immediate peril to life [and/or] property.” JA 131–34. The Board agreed and lifted the stay,
finding that the building indeed posed an “immediate danger to the community.” D. Ct. Op. at 4.
        On March 12, 2003, Davet responded by seeking, then receiving, a temporary restraining
order from the Court of Common Pleas of Cuyahoga County. The restraining order prevented the
city from taking any further action pending a preliminary-injunction hearing. The court held the
required hearing the following day but at that point Davet withdrew his injunction request.
         On March 14, 2003, the city demolished the front of the building, and that April it filed a
counterclaim in state court (which it amended in September 2003) seeking reimbursement for the
cost of the partial demolition (roughly $16,000) and an injunction compelling Davet either to fix the
rest of the building or to allow the city to demolish it.
       On April 23, 2003, and again on May 7, 2003, the Board of Building Standards heard
Davet’s appeal of the condemnation order. Represented by counsel, Davet testified at the hearings
and was given an opportunity to introduce evidence and to present and cross-examine witnesses.
On May 7, 2003, the Board upheld the condemnation order and informed Davet of his right to appeal
the Board’s decision. Davet did not appeal.
         After the hearing, the parties tried to resolve the dispute. The city sent Davet’s attorney a
letter detailing the steps needed to remedy the code violations. Davet responded with a proposal of
his own, which the city rejected (in bad faith according to Davet) because it failed to address the
issues underlying the condemnation order and the requirements listed in the city’s letter. When the
city told Davet that it planned to demolish a second portion of the building, Davet sought another
temporary restraining order from the Court of Common Pleas of Cuyahoga County. The state court
rejected Davet’s request, noting that he had failed to show “by clear and convincing evidence that
he [was] likely to succeed” in demonstrating that the building did “not pose an immediate peril,” that
he would suffer “irreparable injury” if no injunction were granted and that “the public interest
[would be] served by allowing the building to remain in its [then-current] condition.” Id. at 6. The
city demolished a second portion of the building on June 11.
        On July 3, 2003, Davet filed an amended complaint in state court, seeking relief under 42
U.S.C. § 1983 against the city and its chief building official, Robert Vilkas, for violating Davet’s
equal protection and (substantive and procedural) due process rights. Davet also claimed that the
city’s actions amounted to a “taking without public purpose and without just compensation.” JA 16.
The city removed the case to federal court and sought summary judgment on all of Davet’s claims.
       In granting the city’s summary-judgment motion, the district court noted that the
administrative hearings before the Board established that the city had properly condemned the
No. 05-3832           Davet v. City of Cleveland et al.                                         Page 3


building and that Davet’s failure to appeal that conclusion rendered it an “established legal fact”
entitled to “preclusive effect.” D. Ct. Op. at 11. As a result, the court reasoned, Davet’s “argument
that the structure posed no danger to the community[] and [that it] did not constitute a public
nuisance subject to condemnation” could not be relitigated. Id. at 10. Given the state administrative
conclusion that the building posed a danger to the community and given the process afforded Davet,
the court rejected each of his constitutional claims as a matter of law. Roughly three months later,
the court exercised supplemental jurisdiction over the counterclaim (seeking reimbursement of the
demolition costs and an injunction compelling Davet to fix the building or to demolish it) and ruled
in the city’s favor.
                                                  II.
        Davet raises three arguments on appeal: (1) the district court erred in granting the city
summary judgment on Davet’s claims; (2) the district court erred in exercising supplemental
jurisdiction over the city’s counterclaim; and (3) even if the district court properly retained
jurisdiction to hear the counterclaim, it erred in granting the city’s motion for summary judgment
on that claim. We give fresh review to the district court’s summary-judgment decisions, Harajli v.
Huron Twp., 365 F.3d 501, 505 (6th Cir. 2004), fresh review to its assessment of the scope of its
jurisdiction, Friends of the Crystal River v. EPA, 35 F.3d 1073, 1077 (6th Cir. 1994), and abuse-of-
discretion review to its decision to exercise supplemental jurisdiction over ancillary state-law claims,
Campanella v. Commerce Exch. Bank, 137 F.3d 885, 892 (6th Cir. 1998).
                                                  A.
         In challenging the court’s summary disposition of his claims, Davet argues that it incorrectly
concluded that he had failed to exhaust his administrative remedies. But that is not what the court
did. Because Davet did not appeal the Board’s ruling on the validity of the condemnation order, the
district court reasoned that the order became final and precluded further argument in a collateral
proceeding about whether the structure posed a “danger to the community[] and did not constitute
a public nuisance subject to condemnation.” D. Ct. Op. at 10–11.
        Davet as an initial matter does not challenge that reasoning, and it is not clear how he could.
“[W]hen a state agency acting in a judicial capacity resolves disputed issues of fact properly before
it which the parties have had an adequate opportunity to litigate, federal courts must give the
agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.”
Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotation marks, ellipses and citation
omitted). Under Ohio law, “res judicata, whether claim preclusion or issue preclusion, applies to
administrative proceedings that are of a judicial nature and where the parties have had an ample
opportunity to litigate the issues involved in the proceeding.” Grava v. Parkman Twp. Bd. of Zoning
Appeals, 653 N.E.2d 226, 228 (Ohio 1995) (internal quotation marks omitted); see Crow v. City of
Springfield, No. 00-3510, 2001 WL 814938, at *4 (6th Cir. July 12, 2001) (“While it is true that as
a general principle, parties may litigate constitutional deprivation claims in federal court regardless
of whether they took advantage of a State court or State administrative procedure, . . . that is not the
principle being applied in this case. . . . The finding by an administrative body that Crow’s property
constituted a public nuisance is an established legal fact, which was not appealed. Thus, the district
court gave the finding preclusive effect as the finding was an unreviewed final decision of a State
administrative body . . . .”); Flis v. Voinovich, No. 96-4369, 1998 WL 552865, at *4 (6th Cir.
Aug. 13, 1998) (per curiam).
        Once the district court established the validity of the condemnation order and the preclusive
effect of the Board’s ruling on it, the court permissibly addressed and rejected each of Davet’s
claims as a matter of law: (1) The procedural due process claim failed because the Board had given
him ample notice and an opportunity to be heard; (2) the substantive due process claim failed
No. 05-3832           Davet v. City of Cleveland et al.                                           Page 4


because he could not establish that the city’s actions (taken pursuant to a valid condemnation order
and in accordance with the procedures mandated by city and state law) “shock[ed] the conscience”
or were “arbitrary and capricious,” D. Ct. Op. at 12–13 (internal quotation marks omitted); (3) the
equal protection claim failed because he could not establish that demolishing a dangerous building
as to this “class of one” (and dilapidated building of one) was an “irrational or arbitrary” act, id. at
14–15 (internal quotation marks omitted); and (4) the takings claim failed because “[d]emolition,
compliant with local law and procedure, in order to enforce building codes or abate a public
nuisance does not constitute a taking as contemplated by the federal and Ohio Constitutions,” id. at
16; see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1022–24 (1992) (“[L]and-use regulation does
not effect a taking if it substantially advances legitimate state interests . . . .”) (internal quotation
marks and brackets omitted); id. at 1030 (“[T]he Takings Clause does not require compensation
when an owner is barred from putting land to a use that is proscribed by [ ] existing rules or
understandings.”) (internal quotation marks omitted); N. Ohio Sign Contractors Ass’n v. City of
Lakewood, 513 N.E.2d 324, 327 (Ohio 1987) (“[T]he constitutional right of the individual to use
private property has always been subservient to the public welfare . . . [and] such use is subject to
the legitimate exercise of local police power . . . .”). Because the validity of the condemnation order
and the condition of the building were the crucial premises underlying each of these conclusions and
because the court did not err in giving the Board’s decision on those issues preclusive effect, the
court properly granted summary judgment to the defendants on Davet’s claims.
                                                   B.
         Davet next argues that the district court lacked jurisdiction to consider the city’s
counterclaim. In doing so, however, he does not dispute that the district court properly obtained
subject-matter jurisdiction over the case when Davet sought relief for violations of his constitutional
rights, see 28 U.S.C. § 1331; that a district court possesses “supplemental jurisdiction over all other
claims that are so related” to the federal-law claims in a case that they “form part of the same case
or controversy,” id. § 1367(a); and that “supplemental jurisdiction ‘is a doctrine of discretion’” and
that dismissal of ancillary state-law claims when the federal-law claims are no longer part of the case
is “not mandatory,” Eastman v. Marine Mech. Corp., 438 F.3d 544, 551 (6th Cir. 2006).
       Having accepted each of these hallmarks of supplemental jurisdiction and having accepted
the district court’s conclusion that the two sets of claims “form part of the same case or
controversy,” Davet argues that the district court nonetheless lacked power to review the city’s
counterclaims. As he sees it, Ohio law grants “exclusive jurisdiction over civil actions to enforce
Cleveland building and housing codes” to the “Housing Division of the Cleveland Municipal Court,”
and a federal district court assuredly does not satisfy this requirement. Davet Br. at 11 (internal
quotation marks omitted).
     Putting the potential Supremacy Clause problems with this argument to the side for one
moment, we think that Davet misreads Ohio law. The relevant provision says:
        [I]f a municipal court has a housing or environmental division, the division has
        exclusive jurisdiction within the territory of the court in any civil action to enforce
        any local building, housing, air pollution, sanitation, health, fire, zoning, or safety
        code, ordinance, or regulation applicable to premises used or intended for use as a
        place of human habitation, buildings, structures, or any other real property subject
        to any such code, ordinance, or regulation . . . .
Ohio Rev. Code § 1901.181(A)(1). “[I]f a municipal court has a housing or environmental
division,” the provision says only that “the division has exclusive jurisdiction within the territory
of the court,” id. (emphasis added)—namely, the “municipal court”—not exclusivity vis-à-vis
federal courts. Reaching a similar conclusion in a dispute about the exclusive jurisdiction of the
No. 05-3832            Davet v. City of Cleveland et al.                                          Page 5


environmental division of a municipal court in relation to an Ohio court of common pleas, the Ohio
Supreme Court held that “the ‘exclusive jurisdiction’ vested in the housing court by [Ohio Revised
Code §] 1901.181(A) means exclusive as against the other divisions of the municipal court, but not
as against the court of common pleas in cases where a plaintiff has alleged damages of more than
$10,000.” State ex rel. McGraw v. Gorman, 478 N.E.2d 770, 772 (Ohio 1985). If in 1985,
according to the Ohio Supreme Court, this provision did not establish exclusive jurisdiction as to
other Ohio courts, it would seem to follow that it does not operate to accomplish a more unusual
jurisdictional feat—excluding the courts of another sovereign from hearing disputes that that
sovereign’s laws allow it to hear. While the Ohio legislature in 1997 altered the outcome in Gorman
by amending Ohio Revised Code § 1901.17 to say that the $15,000 jurisdictional “limit does not
apply to the housing division or environmental division of a municipal court,” it did nothing to
suggest that the Housing Division’s jurisdiction was exclusive of federal-court jurisdiction.
         But even if that were not the case, we would still construe the law not to bar federal
jurisdiction in this instance. If accepted, Davet’s construction of § 1901.181(A)—under which only
the Housing Division of the Cleveland Municipal Court possessed jurisdiction to hear the city’s
state-law counterclaim—would present a square conflict between the requirements of § 1901.181(A)
and 28 U.S.C. § 1367(a), which gives district courts “supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form part of the
same case or controversy.” That conflict is traditionally resolved in favor of the federal legislation
under the Supremacy Clause. U.S. Const. art. VI, cl. 2; see Marshall v. Marshall, 126 S. Ct. 1735,
1749–50 (2006) (holding that despite purporting to grant exclusive jurisdiction to specialized state
probate courts over certain matters, state legislation may not divest a federal court of jurisdiction
over a probate-related dispute); Thompkins v. Stuttgart Sch. Dist. #22, 787 F.2d 439, 441–42 (8th
Cir. 1986) (holding that despite purporting to vest exclusive jurisdiction for the enforcement of a
state-law right in a specific state court, state legislation may not preclude a federal court from
exercising pendent jurisdiction over claims based on that right); Markham v. City of Newport News,
292 F.2d 711, 713 (4th Cir. 1961) (“In determining its own jurisdiction, a District Court of the
United States must look to the sources of its power and not to acts of states which have no power
to enlarge or to contract the federal jurisdiction.”); 17 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure, § 4211 (2d ed. 2005) (“A state cannot defeat
federal jurisdiction of a matter judicial in nature by confining jurisdiction to a specialized state
court . . . .”).
         The seriousness of the constitutional question posed by Davet’s construction of the statute
offers a compelling reason to construe the statute narrowly. Just as federal courts construe state
“statutes to avoid constitutional difficulty when ‘fairly possible,’” Eubanks v. Wilkinson, 937 F.2d
1118, 1122 (6th Cir. 1991) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)), so Ohio courts will
“construe” their own “statute[s] to save [them] from constitutional infirmities,” State v. Sinito, 330
N.E.2d 896, 898 (Ohio 1975). Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and
Const. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable construction
of a statute would raise serious constitutional problems, the Court will construe the statute to avoid
such problems . . . .”); Clark v. Martinez, 543 U.S. 371, 381–82 (2005) (“[O]ne of the canon[] [of
constitutional avoidance’s] chief justifications is that it allows courts to avoid the decision of
constitutional questions. It is a tool for choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that Congress did not intend the alternative
which raises serious constitutional doubts.”). As one interpretation of § 1901.181(A) gives rise to
serious constitutional difficulties while the other does not, the provision is best interpreted as vesting
jurisdiction in the Housing Division of the Cleveland Municipal Court “exclusive” of other state
courts, but not exclusive of a federal court otherwise properly exercising jurisdiction over the case.
Section 1901.181(A) does not, in short, pose an impediment to the district court’s exercise of
supplemental jurisdiction.
No. 05-3832           Davet v. City of Cleveland et al.                                          Page 6


                                                  C.
        Davet, finally, argues that even if the district court retained jurisdiction over the city’s
counterclaim, it erred in granting summary judgment to the city because “a material issue of
disputed fact” remained “as to whether Davet’s [building] continued to pose an imminent threat”
once it was partially demolished. Davet Br. at 2–3. This argument, however, ignores the scope of
the condemnation order as well as the “preclusive effect” properly given to the Board’s ruling that
the building warranted condemnation. Contrary to Davet’s suggestion, the Board did not limit its
application of the condemnation order to the portion of the building that was later demolished. As
upheld by the Board, the condemnation order cited violations throughout the structure. See JA
121–24 (listing as deteriorated the roof, roof rafters, sheathing, roofing, walls (load bearing and non-
load bearing as well as interior and exterior), wall studs, floors, floor deck, beams, openings, plaster,
trim and moulding, stairs, stringers, risers, treads, enclosure walls, and plumbing, heating and
electrical equipment). The Board’s ruling that the entire building warranted demolition precludes
Davet from arguing that once part of the building was demolished, the remainder of the structure
was no longer subject to the condemnation order.
                                                   III.
        For these reasons, we affirm.
