     Case: 09-31110 Document: 00511435945 Page: 1 Date Filed: 04/05/2011




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

                                                 FILED
                                                                             April 5, 2011
                                       No. 09-31110
                                                                            Lyle W. Cayce
                                                                                 Clerk



ROSEDALE MISSIONARY BAPTIST CHURCH,

                                                   Plaintiff-Appellee,
versus

NEW ORLEANS CITY,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:08-CV-4458




Before SMITH, WIENER, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       The City of New Orleans appeals a jury verdict for Rosedale Missionary
Baptist Church finding that the city violated the church’s Fourteenth Amend-
ment right to due process by demolishing the church building without notice.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 09-31110

Because the church raises only a procedural due process claim, and the resolu-
tion of that claim depends on the resolution of the church’s state court takings
claim, we reverse the judgment and render a judgment of dismissal.


                                         I.
      Hurricane Gustav struck New Orleans in September 2008. A few days la-
ter, the city issued twenty-five Gustav-related demolition notices, including one
for 4001 Reynes Street, where the church was located. The city then demolished
the property without giving notice to the church. A consent decree in place at
the time required the city to give notice of the proposed demolition of any struc-
ture it determined to be a threat to the “public health, safety, and welfare . . . as
a result of damage from Hurricane Katrina, Hurricane Rita, or wind and flood
damage associated with those hurricanes.” Consent Decree, Joshua v. City of
New Orleans, No. 07-4205 (E.D. La. Jan. 25, 2008), ECF No. 73. The consent de-
cree applied to anyone who owned property in Orleans Parish. Id. The damage
to the church was caused by Katrina and pre-dated Gustav. The parties do not
dispute that the demolition occurred while the consent decree was in effect. The
city maintains that the decree did not apply to property in imminent danger of
collapse, but the jury found that the church was not in such imminent danger.
      The church did not, however, seek sanctions for the city’s violation of the
consent decree. It only sued for damages for violations of its procedural and sub-
stantive due process rights and for just compensation under the Takings Clause.
The decree explicitly states that it “does not cover or settle any aspects of indi-
vidual claims for damages associated with past or future wrongful demolition.”
Id. So the decree, by its plain terms, does not cover the church’s takings or due
process claims.
      Nevertheless, mistakenly believing that the consent decree gave it the
right to do so, the church brought a takings claim and a substantive and proce-

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                                     No. 09-31110

dural due process claim against the city in federal court. Before trial, the dis-
trict court dismissed the takings claim as unripe based on Williamson Cnty.
Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 194 (1985), but the
city did not raise a ripeness argument with respect to the due process claims,
and the parties went to trial.
       The city argues that it raised a ripeness challenge to the due process
claims in its pretrial memorandum of law, seven days before trial, but that more
accurately appears to have been an argument that the church failed to state a
procedural due process claim because no pre-taking process was constitutionally
required under Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer,
468 U.S. 517 (1984). At the close of the church’s case at trial, however, the city
did raise a ripeness challenge to the due process claims, and it did so again after
trial, but the district court denied both motions.
       The jury found that the city had violated the church’s “Fifth or Fourteenth
Amendment constitutional rights” and was not “excused because the church was
in imminent danger of collapse.”1 It awarded $300,000 in damages. The city ap-
pealed the verdict, but the church did not appeal the dismissal of the takings
claim as unripe.


                                            II.
       The city argues the case should be dismissed because the church’s proce-
dural and substantive due process claims are unripe for review under William-
son County, 473 U.S. at 186, 194, and John Corp. v. City of Houston, 214 F.3d
573, 584 (5th Cir. 2000). The church responds that the city waived any ripeness
arguments with respect to its due process claims because they were not raised
until the close of the church’s case at trial. The city counters that the ripeness

      1
        The church also sued Mayor Ray Nagin, but the jury did not find him liable, and the
church does not appeal that determination.

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of a takings claim under Williamson County is a jurisdictional requirement that
cannot be waived or forfeited, citing Samaad v. City of Dallas, 940 F.2d 925, 934
(5th Cir. 1991). That is indeed what we held in Samaad, but the Supreme Court
has since explicitly held that Williamson County’s ripeness requirements are
merely prudential, not jurisdictional,2 so although a court may raise them sua
sponte,3 it may consider them waived or forfeited as well.4 As a result, our hold-
ing in Samaad that Williamson County ripeness is an unwaivable jurisdictional
requirement is no longer good law.
       We do not need to address the novel question whether we may deem Wil-
liamson County ripeness arguments forfeited if they are raised only at the close
of the plaintiff’s case at trial, because the church’s due process claim is unripe
based not on Williamson County but on general ripeness principles. John Corp.,
214 F.3d at 586. Because the church does not allege a substantive due process
claim that is independent of its procedural due process claim, and we cannot ad-
dress the procedural due process claim without knowing the outcome of the tak-
ings claim, which is not before us, we dismiss the case as unripe.


       2
          Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2610
(2010) (holding that Williamson County’s “just compensation” prong is merely prudential); Sui-
tum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733-34 (1997) (stating that both Williamson
County prongs are prudential); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1011-13 (1992)
(holding that Williamson County’s “final decision” prong is prudential); see also San Remo Ho-
tel v. City & Cnty. of San Francisco, 545 U.S. 323, 340 (2005) (Rehnquist, J., concurring in the
judgment) (“The Court in Williamson County purported to interpret the Fifth Amendment in
divining this state-litigation requirement. More recently, we have referred to it as merely a
prudential requirement.” (citations omitted)).
       3
         See Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“[E]ven
in a case raising only prudential concerns, the question of ripeness may be considered on a
court’s own motion.”).
       4
         Stop the Beach, 130 S. Ct. at 2610; Guggenheim v. City of Goleta, 582 F.3d 996, 1009
(9th Cir. 2009), vacated on other grounds on reh’g en banc, 2010 U.S. App. LEXIS 25981 (9th
Cir. Dec. 22, 2010) (en banc), petition for cert. filed (Mar. 11, 2011) (No. 10-1125); see Stolt-
Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010) (deeming a prudential
ripeness argument waived in an arbitration dispute).

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                                        No. 09-31110

                                               A.
       Although “no bright-line rule exists for determining whether a matter was
raised below,”5 for a litigant to preserve an argument for appeal, it must “press
and not merely intimate the argument during the proceedings before the district
court,” e.g., FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994). The argument
must be raised “to such a degree that the district court has an opportunity to
rule on it.” Id. In Hopkins v. Saunders, 199 F.3d 968, 974-75 (8th Cir. 1999), al-
though the plaintiff “marginally asserted” First Amendment and Title VII viola-
tions in his complaint, he never asserted them again, the district court did not
address them in its final judgment, and the plaintiff did not object. The court
held the claims waived on the ground that “[a] party may not stand idly by,
watching the proceedings and allowing the district court to commit error on
which the party subsequently complains.” Id. at 975 (citation omitted). The
facts of this case with respect to the church’s substantive due process claim are
virtually identical to those in Hopkins.
       Although the church asserted in its complaint that it was making a sub-
stantive due process argument, it never explained what that argument was. A
substantive due process violation is an “action[ ] government officials may not
take no matter what procedural protections accompany them.”6 By contrast, the
church’s so-called “substantive” due process claim was listed within the same


       5
       N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th Cir. 1996) (internal quotation
marks and citation omitted).
       6
         Augustine v. Doe, 740 F.2d 322, 326 (5th Cir. 1984) (quoting Hudson v. Palmer, 468
U.S. 517, 541 n.4 (1984) (Stevens, J., concurring in part and dissenting in part)); see Simi Inv.
Co. v. Harris Cnty., 236 F.3d 240, 249 (5th Cir. 2000) (addressing a substantive due process
claim in the takings context by determining whether a rational basis existed for the state’s ac-
tions). Unlike the plaintiff that made a substantive due process allegation in Williamson
County, 473 U.S. at 197, the church never alleged that some government law or regulation
should be invalidated because it had the same effect as a taking. The only possible substan-
tive due process claim the church could have raised, based on the facts in its complaint, would
have been like the one in Simi, 236 F.3d at 249, but it never made that claim.

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                                  No. 09-31110

cause of action in its complaint as its procedural due process claim and involved
the same procedural allegations, namely that “[t]he demolition at issue was ef-
fected without notice to [the church] and without an opportunity for [the church]
to be heard in opposition” and that “[t]he demolition at issue was effected with-
out regard to procedural safeguards within the City’s own administration and
in further violation of procedural safeguards set forth in a Consent Decree.”
Regardless of whether the facts alleged in the complaint could be fairly read to
state a substantive due process claim, the complaint only vaguely asserted one.
      The church did not once mention its substantive due process claim for the
remainder of the district court proceedings. The only other time it came up was
when the court denied a motion to dismiss the complaint pretrial because that
motion to dismiss was untimely. At trial, the church did not argue that its due
process rights were violated independently of its allegation that the city had
failed to follow adequate procedural safeguards. On the contrary, the church’s
counsel twice asserted at trial that the only issue was whether pre-demolition
process should have been provided.
      Moreover, the district court never ruled on the merits of the substantive
due process issue. At the close of trial, it addressed only the procedural due pro-
cess claim: “[The church] asserts that the city’s demolition of its church without
prior notice and an opportunity to be heard violated its procedural due process
rights under both the state and federal Due Process Clauses of the Fifth and
Fourteenth Amendments.” The court then instructed the jury only on the ele-
ments of a procedural due process claim, reciting the familiar factors discussed
in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and concluded by saying that
the due process issue turned on whether the city had good reason not to provide
notice, all without objection from the church. The verdict form did not separate-
ly discuss procedural and substantive due process claims.
      Thus, to the extent the substantive due process claim, whatever it may be,

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                                       No. 09-31110

may differ from the procedural due process claim, that argument was not
pressed before the district court and is waived. The mere recitation of the vague
words “substantive due process” in one’s complaintSSwithout a word more of
elaboration by either the parties or the court over the course of an entire trialSS
is insufficient to preserve such a claim on appeal.


                                              B.
       The remaining question is whether the procedural due process claim is
ripe under general ripeness principles. John Corp., 214 F.3d at 586. We may
raise ripeness sua sponte and “cannot be bound by the wishes of the parties.” 7
The ripeness inquiry involves “(1) the fitness of the issues for judicial decision
and (2) the hardship to the parties of withholding court consideration.” Nat’l
Park Hospitality Ass’n, 538 U.S. at 808.
       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.
John Corp., 214 F.3d at 585. We held that “it will only be when a court may as-
sess 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 re-
quired.” Id. Until then, “additional factual development is necessary.” Id. at
586. The reason is that, where the injury that resulted from an alleged proce-
dural 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.8 And because Williamson County, 473 U.S. at 194, re


       7
        Roark & Hardee LP v. City of Austin, 522 F.3d 533, 544 (5th Cir. 2008) (quoting Reno
v. Catholic Social Servs., 509 U.S. 43, 57 n.18 (1993)).
       8
          See John Corp., 214 F.3d at 585-86 (distinguishing Hidden Oaks v. City of Austin, 138
F.3d 1036, 1045 n.6 (5th Cir. 1998), on the ground that there “plaintiffs asserted a violation
of their procedural due process rights that inflicted an injury separate from any takings claim
                                                                                  (continued...)

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                                         No. 09-31110

quires that the takings claim be adjudicated “through the procedures the State
has provided for doing so,” we cannot decide the takings claim ourselves.9
       We must therefore allow state takings procedures to run their course be-
fore we can adjudicate the procedural due process claim. Indeed, the state adju-
dication 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.10 Conversely, a decision by this court that the church was enti-
tled to the value of its demolished property would permit an end-run around
Williamson County.11 Finally, the church has not alleged that any hardship
would result from allowing its state-court takings claim to run its course. Ac-
cordingly, we dismiss the procedural due process claim as unripe.
       The judgment is REVERSED, and a judgment of dismissal without preju-
dice is RENDERED.




       8
        (...continued)
that was dismissed prior to trial”).
       9
         See John Corp., 214 F.3d at 585 (“Until the state courts have ruled on the plaintiff’s
inverse condemnation claim, this court cannot determine whether a taking has occurred . . . .”
(quoting Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154, 160 (6th Cir. 1992))). The matter
would be different if the city had waived or forfeited its right to have the takings claim litigat-
ed in state proceedings pursuant to Williamson County, but here the district court dismissed
the takings claim as unripe pre-trial, and the church does not appeal that dismissal. The tak-
ings claim is therefore not before us.
       10
          See McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (noting that
“[i]n the fitness inquiry [for ripeness] . . . prudential concerns focus[] on the policy of judicial
restraint from unnecessary decisions”); cf. Williamson Cnty., 473 U.S. at 195 n.14 (“Unlike the
Due Process Clause . . . the Just Compensation Clause has never been held to require pretak-
ing process or compensation.”).
       11
         See Bigelow, 970 F.2d at 160 (noting that the purpose of asserting the procedural due
process claim in federal court is to “circumvent the ripeness requirement” for takings claims).

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