United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2009 Decided February 26, 2010
No. 09-7035
ROSE RUMBER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA AND NATIONAL CAPITAL
REVITALIZATION CORPORATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01170-RMU)
Elaine Mittleman argued the cause and filed the briefs for
appellants.
Carl J. Schifferle, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With him on the brief were Peter J. Nickles,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.
Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH,
Senior Circuit Judges.
2
Opinion for the Court filed PER CURIAM.
PER CURIAM: Seventeen plaintiffs brought suit to prevent
the District of Columbia from acquiring a shopping center by
eminent domain. Because only four of the plaintiffs own or
lease properties in the shopping center, and those four are
litigating this matter in the District of Columbia’s court system,
we affirm the district court’s dismissal of the case.
***
The Skyland Shopping Center is located at the junction of
Alabama Avenue, Good Hope Road, and Naylor Road in
Southeast Washington, D.C. According to findings of the
District of Columbia Council, the shopping center is in disrepair,
is underutilized, contributes to crime, is an eyesore, presents
traffic hazards, does not provide quality shopping, and is a
“blighting factor” in the neighborhood. See National Capital
Revitalization Corporation Eminent Domain Clarification and
Skyland Eminent Domain Approval Amendment Act, D.C. Law
15-286, 52 D.C. Reg. 859 (2004) (the “Skyland Act”). In 2004,
the Council authorized the National Capital Revitalization
Corporation – a District agency – to acquire the properties
comprising the shopping center by purchase or eminent domain.
The District planned to transfer the land to a private company
that would redevelop the area into a better shopping center with
the attendant public benefits of increased revenue, jobs, and high
quality shopping.
Plaintiffs are current and former Skyland property owners,
tenants, and employees who oppose the District’s plan. They
brought suit in federal court shortly after the Council passed the
Skyland Act, alleging that the proposed takings were intended
to benefit the private developer rather than the public and thus
violated the Takings Clause of the Fifth Amendment. They
3
sought a judgment declaring the Act unconstitutional and
enjoining the District from exercising eminent domain to acquire
the shopping center. They also requested damages. After the
district court denied plaintiffs’ motion for a preliminary
injunction, the District initiated a series of condemnation
proceedings in the District of Columbia Superior Court against
Skyland parcels. One of these proceedings was brought against
property owned by plaintiff Duk Hea Oh; another was brought
against property owned by plaintiff Peter DeSilva and leased by
plaintiffs Joseph and Rose Rumber. In light of these
proceedings, the district court dismissed the claims of Oh,
DeSilva, and the Rumbers under the principle of abstention
articulated in Younger v. Harris, 401 U.S. 37 (1971). The court
dismissed as moot the claims of three other plaintiffs (Graham
Fields, Verna Fields, and Ingak Lee) who had sold their property
to the District. As to the remaining plaintiffs, the court granted
summary judgment in the District’s favor, finding that the
District passed the Skyland Act to further a public purpose and
therefore the Act did not violate the Takings Clause.
All seventeen plaintiffs now appeal, but thirteen plaintiffs’
claims are barred by the doctrines of mootness or standing. Four
plaintiffs (Graham Fields, Verna Fields, Ingak Lee, and In Suk
Baik) sold their property to the District and three others (Marion
Fletcher, Hartej Singh, and Muneer Choudhury) are former
leaseholders whose leases expired or terminated without being
condemned. These plaintiffs have “nothing to gain” from an
injunction against the use of eminent domain or a judgment
declaring the Skyland Act unconstitutional; their claims are
therefore moot. See Taylor v. Resolution Trust Corp., 56 F.3d
1497, 1502 (D.C. Cir. 1995).1 Three other plaintiffs (Quval Le,
1
These plaintiffs argue that the complaint also includes claims for
compensatory damages, which are not capable of being moot. See
People for Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d
4
Moon Kim, and Son Cha Kang) are also former leaseholders
whose leases are no longer in effect. They argue that their
claims are not moot because the District, having acquired the
property that they previously leased, allows them to continue to
operate their businesses under month-to-month license
agreements.2 But because the District will not need to use the
eminent domain power when it wishes these plaintiffs to vacate,
their claims are moot as well.
Three other plaintiffs lack standing because they do not
hold property interests in the shopping center. Plaintiffs Ling
Chen and Boubaker Ben Salah are or were employees of
businesses operating at the shopping center, and plaintiff
Mukhtar Ahmadi holds an unspecified ownership stake in a
business that leases a store at the shopping center. A plaintiff
must ordinarily “assert his own legal interests, rather than those
of third parties.” Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 100 (1979); Goodman v. FCC, 182 F.3d 987, 992
(D.C. Cir. 1999). A plaintiff may assert the rights of a third
party only when there is “some hindrance to the third party's
ability to protect his or her own interests,” Goodman, 182 F.3d
at 992 (quoting Powers v. Ohio, 499 U.S. 400, 411 (1991)). The
property-owning businesses, not their employees or
stakeholders, are the proper parties to bring suit opposing
416, 425 (D.C. Cir. 2005). Because no property has been taken from
these plaintiffs, however, we see no basis on which they may collect
damages.
2
In supplemental briefing, the District provided us with these
license agreements. Each agreement contains a clause releasing the
District “from and against any and all actions, causes of action, suits,
debts, contracts, claims and/or demands pertaining to or arising from
Licensee’s occupancy of the Premises prior to the date hereto.”
Plaintiff Baik also signed a similar license agreement, with an
identical release clause, after selling his property to the District.
5
condemnation.
That brings us to the district court’s decision to abstain
under Younger with respect to the claims of the four
condemnees. The Younger principle, as it has been shaped by
a series of Supreme Court precedents, is that a federal court
should not enjoin or declare illegal a pending state proceeding
that is judicial in nature and involves important state interests,
JMM Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C.
Cir. 2004), assuming that the state proceeding is “the type of
proceeding to which Younger applies,” Act Now to Stop War and
End Racism Coalition v. District of Columbia, 589 F.3d 433,
436 (D.C. Cir. 2009) (quoting New Orleans Pub. Serv., Inc. v.
Council of the City of New Orleans, 491 U.S. 348, 367–68
(1989)). The condemnees do not dispute that the general rule of
Younger applies here, but rather argue that they fall within either
of two exceptions to Younger. A federal court should not
abstain if the federal plaintiff does not have a “full and fair
opportunity to litigate” his constitutional claims in the state
proceedings, id. (quoting Ohio Civil Rights Comm'n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 627 (1986)) or if there is a
showing of “bad faith” by the officials bringing the state
proceedings, see Trainor v. Hernandez, 431 U.S. 434, 442 n.7
(1977) (citing Younger, 401 U.S. at 54). Neither exception
applies.
The condemnees claim that the Superior Court deprived
them of a fair litigation opportunity by ruling – in both
condemnation actions – that the condemnees forfeited their
constitutional defenses by failing to plead them. The
condemnees did not provide, either to this court or the district
court, copies of the relevant Superior Court pleadings or the
forfeiture rulings. Nor did their briefs explain the rulings in any
detail, leaving us unable to evaluate their fairness. But it does
not matter anyway, because, as these plaintiffs acknowledge, the
6
District of Columbia Court of Appeals shortly thereafter issued
an opinion in a similarly-situated Skyland condemnation case
that overturned those forfeiture rulings. See Franco v. Nat’l
Capital Revitalization Corp., 930 A.2d 160, 166–70 (2007).
Indeed, in the DeSilva/Rumber case, the Superior Court took
note of the Franco decision, reversed its forfeiture ruling, and
rejected the public use argument on the merits. We have no idea
what happened in the Oh case after the Franco ruling because
the briefs are silent on this matter as well. It was Oh’s
obligation to bring the Franco opinion to the Superior Court’s
attention in a motion for reconsideration, and, in the absence of
any indication that she has done so, we do not simply assume
that the Superior Court would have rebuffed her. See Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 15–16 (1987). In short, we have
no basis on which to believe that any of the condemnees were
deprived of a fair opportunity to raise their constitutional
defenses in Superior Court.
As to “bad faith,” the Rumbers complain that the District
did not join them as defendants in the DeSilva condemnation
action for approximately two years after the District filed the
condemnation complaint. This was bad faith, according to the
Rumbers, because Superior Court rules require immediate
joinder of all parties known to hold property interests. See
Super. Ct. Civ. R. 71A(c)(2). The Rumbers accuse the District
of knowing of their leasehold interest at the time of the initiation
of the condemnation suit and deliberately delaying joining them
as defendants. We cannot help but wonder what possible
advantage the District hoped to gain through this strategy, or
how the delay has prejudiced the Rumbers. The Rumbers were
obviously on notice of the condemnation action because they
have been suing to enjoin it since it began. We therefore agree
with the district court that there was no bad faith.
7
Though we imagine that plaintiffs could have raised other
arguments against abstention,3 we follow our usual practice of
declining to reverse the district court based on arguments that
the appellant did not raise. See Doe v. District of Columbia, 93
F.3d 861, 875 n.14 (D.C. Cir. 1996) (per curiam). Accordingly,
we affirm the district court’s dismissal of plaintiffs’ Fifth
Amendment claims. We also affirm the court’s disposition of
plaintiffs’ contract and Uniform Relocation Assistance Act
claims, which are so clearly meritless that they do not warrant
discussion.
Affirmed.
3
For example, plaintiffs never argued that abstention was
unwarranted with respect to the Rumbers because “proceedings of
substance on the merits ha[d] taken place in the federal court” before
the District joined the Rumbers in the DeSilva condemnation suit. See
Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984). Had
plaintiffs done so, the District presumably would have responded that
the Rumbers’ interests were sufficiently intertwined with DeSilva’s
such that their late joinder would not be a bar to abstention. See Hicks
v. Miranda, 422 U.S. 322, 348–49 (1975); Doran v. Salem Inn, Inc.,
422 U.S. 922, 928–29 (1975). Nor did plaintiffs argue that
condemnation is not “the type of proceeding to which Younger
applies.” Act Now to Stop War and End Racism Coalition, 589 F.3d
at 436.