[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
____________ April 22, 2008
THOMAS K. KAHN
No. 05-16499 CLERK
_____________
D.C. Docket No. 04-21743-CV-JEM
AGRIPOST, LLC a Florida Limited Liability Company,
(successor by merger to Agripost, Inc.),
AGRI-DADE, LTD., a Florida limited partnership,
Plaintiffs-Appellants,
versus
MIAMI-DADE COUNTY, FLORIDA,
a political subdivision of the State of Florida,
Defendant-Appellee.
______________
Appeal from the United States District Court
for the Southern District of Florida
_____________
(April 22, 2008)
Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.
*
Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
TJOFLAT, Circuit Judge:
I.
The facts giving rise to this case are more fully documented in this court’s
prior opinion from the last round of this litigation, and we will not recount them
all here. See generally Agripost v. Miami-Dade County, 195 F.3d 1225 (11th Cir.
1999). For present purposes, it suffices to sketch the basics of the controversy.
Agripost LLC and Agri-Dade, Ltd. are successors in interest to Agripost, Inc.
(collectively “Agripost”), which had subleased a plot of publically owned land
from Dade County, Florida (“the County”) in 1986 for the purposes of
constructing and operating a waste-disposal plant that could convert waste into
agriculturally useful compost. One of the conditions of the sublease was that
Agripost obtain and maintain an unusual use zoning permit because the land was
zoned only for agricultural use. The sublease was also conditioned on Agripost’s
continuing use of the land for the described waste-conversion plant.1 Agripost
made a proposal to the Dade County zoning authority, received a conditional
unusual use permit, constructed the plant, and began operating it in 1989. One of
1
The lease provides in relevant part: “[T]he lease agreement shall be terminated at the
option of the Lessor when and if the said premises including land and improvements shall cease
to be used for a resource recovery facility. The Lessee shall upon termination surrender the
premises.”
2
the conditions of the unusual use permit is that Agripost “compl[ies] with all
conditions and requirements of the Department of Environmental Resources
Management.”
Within a year, however, the plant began having problems with odor
emissions. After a hearing the County’s Department of Environmental Resource
Management revoked the unusual use permit because it deemed the plant’s
continued operation a public nuisance. This decision was upheld by the Zoning
Appeals Board and then the County Commission. Without the unusual use permit,
Agripost’s lease on the land was terminated on its own terms.
Agripost challenged the County’s decision to revoke the permit before a
panel of the Dade County Circuit Court that handles administrative appeals. The
panel affirmed the agency’s decision after concluding that Agripost violated the
terms of the conditional permit when it failed to reduce the noxious fumes
generated by the plant’s operation. Agripost sought but was denied review of the
case by the Florida Third District Court of Appeal.
After this first go-around in state court, Agripost brought suit against the
County in the United States District Court for the Southern District of Florida,
alleging that the revocation of the unusual use permit amounted to a regulatory
taking without just compensation as required by the Fifth Amendment’s Takings
3
Clause.2 The district court dismissed the complaint for lack of ripeness under the
doctrine of Williamson County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). In
Williamson County, the Supreme Court held that a federal constitutional takings
claim is not ripe until the plaintiff has unsuccessfully pursued a compensation
claim in state court. Id. at 195, 105 S. Ct. at 3121. We affirmed the dismissal on
ripeness grounds. See Agripost, 195 F.3d at 1233-34.
Agripost then sued the County in the Dade County Circuit Court, seeking
damages based on, among other state law claims, inverse condemnation, alleging
that the permit revocation deprived it of all economically viable use of the
property. The complaint also sought damages under the Fifth Amendment’s
Takings Clause but expressly reserved the right to litigate this federal claim in
federal court at the conclusion of the circuit court proceedings, as this court, in
Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299 (11th Cir. 1992),
held that litigants in Agripost’s position could do. The circuit court granted the
County’s motion for summary judgment on all counts of the complaint, and the
Third District Court of Appeal affirmed. On the inverse condemnation claim, that
2
The Fifth Amendment’s Takings Clause is applicable to the states under the Fourteenth
Amendment’s Due Process Clause. See Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct.
2448, 2457, 150 L. Ed. 2d 592 (2001).
4
court held that because Agripost’s property interest in the particular use, i.e., as a
waste disposal facility, was conditional, Agripost did not have a property interest
protected by either the state or federal constitutions against a revocation of the use
permit once the County determined that Agripost was in violation of the permit’s
conditions. The Florida Supreme Court denied certiorari review.
Agripost thereafter returned to the federal district court, re-filing its Fifth
Amendment regulatory takings claim. Agripost alleged that by revoking the
conditional use permit and causing the plant to cease operations, the County
deprived it of all economically beneficial use of the property without
compensation. This time, the district court granted the County’s motion for
summary judgment on the grounds that the federal takings claim was barred by res
judicata or claim preclusion as a result of the disposition in Agripost’s state court
suit. The court also held that Agripost’s claim is barred by collateral estoppel or
issue preclusion. This appeal followed.
II.
A.
We review the district court’s summary judgment order de novo, applying
the same standard as the district court, viewing all evidence in the light most
favorable to the nonmoving party, in this case Agripost. See Custom Mfg. &
5
Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 646-47 (11th Cir. 2007).
Claim and issue preclusion are familiar legal doctrines, though they
generate more than their fair share of complexity in application. One area in
which they have been particularly troublesome is in takings cases brought in
federal court after Williamson County. Williamson County boils down to the rule
that state courts always have a first shot at adjudicating a takings dispute because a
federal constitutional claim is not ripe until the state has denied the would-be
plaintiff’s compensation for a putative taking, including by unfavorable judgment
in a state court proceeding. Once that occurs, and the plaintiff repairs to the
federal district for compensation under the Fifth Amendment’s Takings Clause,
the plaintiff faces the possibility that the legal or factual issues resolved by the
state court might have preclusive effect under the Full Faith and Credit statute, 28
U.S.C. § 1738.3 In short, the interaction of § 1738 and Williamson County might
deprive the plaintiff of the chance to litigate his Takings Clause claim in a federal
3
The statute reads in relevant part:
The records and judicial proceedings of any court of any . . . State,
Territory or Possession, . . . shall have the same full faith and credit in
every court within the United States and its Territories and Possessions as
they have by law or usage in the courts of such State, Territory or
Possession from which they are taken.
28 U.S.C. § 1738. Thus, federal courts apply the preclusion law of the state whose courts
rendered the first decision, see Cmty. Bank v. Torcise, 162 F.3d 1084, 1086 n.5 (11th Cir. 1998),
which in this case is the law of Florida.
6
forum, unless there were some exception to the general principles of preclusion
encapsulated in § 1738.
In Fields, we held that a plaintiff who involuntarily litigates in state court
because of the rule of Williamson County can make an express reservation of his
Takings Clause claim as an exception to the state law claim preclusion principles
that would apply under § 1738. See Fields, 953 F.2d at 1306. That decision was
based in large part on the opinion of our predecessor court in Jennings v. Caddo
Parish School Board, 531 F.2d 1331 (5th Cir. 1976) (per curiam) (stating in dicta
that plaintiff could have made an express reservation of her federal constitutional
claim in state court in order to avoid claim and issue preclusion).4 The Fields
panel recognized the tension between permitting claim-splitting in the takings
context, as authorized by Jennings, and the well-established rule of Allen v.
McCurry, 449 U.S. 90, 101, 103-04, 101 S. Ct. 411, 419, 66 L. Ed. 2d 308 (1980),
4
This court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc). In Jennings, a former public school teacher unsuccessfully sued the school
board in state court alleging that her termination was racially discriminatory and therefore denied
her equal protection of the laws in violation of the Fourteenth Amendment. The district court
held that because the plaintiff alleged in the state case that the firing was racially motivated and
the state court rejected her claim on the merits, res judicata barred her relitigation of the equal
protection claim in federal court. Jennings v. Caddo Parish Sch. Bd., 531 F.2d 1331, 1331-32
(5th Cir. 1976). The panel on appeal held that the plaintiff could have but failed to make an
express reservation of her federal claim on the record in the state court proceeding, as provided
by England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 421-22, 84 S. Ct.
461, 468, 11 L. Ed. 2d 440 (1964), and therefore affirmed. Jennings, 531 F.2d at 1332.
7
interpreting § 1738 to give prior state court adjudications of federal constitutional
issues preclusive effect in federal courts. See Fields, 953 F.2d at 1303-04. Under
the Court’s interpretation of § 1738, state claim preclusion law that disallows
separating and reserving the Takings Clause claim from the litigation of state law
claims would be given full effect in federal court and would seem to rule out the
kind of reservation discussed in Jennings.
Nonetheless, the Fields panel held that Allen did not implicitly overrule
Jennings and did not prevent plaintiffs from reserving their Takings Clause claims.
The panel analogized Fields’s situation to that of a plaintiff forced into state court
when a federal court invokes the Pullman abstention doctrine, R.R. Comm’n of
Tex. v. Pullman Co., 312 U.S. 496, 498-502, 61 S. Ct. 643, 644-46, 85 L. Ed. 971
(1941), and abstains from deciding the case. In Pullman abstention cases, i.e.,
cases in which the federal courts have subject matter jurisdiction but relinquish it
to enable the state courts to resolve antecedent state law issues that could moot the
need for further proceedings in the federal case, the Supreme Court has held that
the state court plaintiff may expressly reserve her federal claims so that the state
court does not reach beyond the state law issues. England v. La. State Bd. of Med.
Exam’rs, 375 U.S. 411, 421-22, 84 S. Ct. 461, 468, 11 L. Ed. 2d 440 (1964). To
be sure, the plaintiff in a Pullman abstention case already has a ripe federal claim
8
whereas the plaintiff in a takings case, per Williamson County, does not.
Although Jennings expanded the scope of the reservation beyond the boundaries
originally drawn in England, see Fields, 953 F.2d at 1305, the Fields panel
harmonized Jennings’s broad application with the Supreme Court’s interpretation
of § 1738. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85 n.7,
104 S. Ct. 892, 898 n.7, 79 L. Ed. 2d 56 (1984); Fields, 953 F.2d at 1305-06 &
nn.5-7.
Much of the basis for reaffirming Jennings’s continued validity relies on
dicta in footnote seven of Migra. Migra addressed the claim-preclusive effects of
a prior state court adjudication in which the federal plaintiff had also been the state
court plaintiff. Migra, 465 U.S. at 77, 104 S. Ct. at 894. The alignment of the
parties is similar to the alignment in Fields, and unlike Allen, both Migra and
Fields addressed claim preclusion and not issue preclusion. Footnote seven in the
Court’s opinion strongly suggests that the voluntariness of the plaintiff’s presence
in state court determines whether the plaintiff can reserve a federal claim for
federal court later.5 See id. at 85 n.7, 104 S. Ct. at 898 n.7 (“In the event that a §
1983 plaintiff’s federal and state-law claims are sufficiently intertwined that the
5
Of course, this voluntariness matters only when the litigant is the plaintiff in both
forums. A state court criminal defendant is clearly not voluntarily in state court, yet the state
court’s decisions on federal constitutional issues are preclusive in federal court. See Allen v.
McCurry, 449 U.S. 90, 101, 103-04, 101 S. Ct. 411, 419, 66 L. Ed. 2d 308 (1980).
9
federal court abstains . . . the plaintiff can preserve his right to a federal forum for
his federal claims . . . .”). Thus, the Fields panel reasoned that permitting the
reservation of a federal takings claim when the plaintiff litigates in state court due
to Williamson County is sufficiently consistent with the post-Migra interpretation
of § 1738 because the plaintiff is in state court involuntarily. Fields’s gloss on the
Jennings reservation has since become the settled law in this circuit. See, e.g.,
Bauknight v. Monroe County, 446 F.3d 1327, 1330-31 (11th Cir. 2006); Saboff v.
St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1360 (11th Cir. 2000).
The County argues that a recent Supreme Court decision, San Remo Hotel,
L.P. v. City and County of San Francisco, 545 U.S. 323, 125 S. Ct. 2491, 162 L.
Ed. 2d 315 (2005), rejects the availability of an England/Jennings reservation of
federal takings claims in situations like the present case. The litigation
culminating in San Remo Hotel resembles this case not only in the legal issues
raised but also in the tangled procedural history spanning state and federal courts.
San Remo Hotel began in California state court when the plaintiff property owner
sought review of the imposition of a “conversion fee” by the City and County as a
condition of permitting the plaintiff’s proposed transformation of a low-rent
residential building into a tourist hotel. See id. at 329, 125 S. Ct. at 2496. While
the petition was pending, the plaintiff sued the City and County in federal district
10
court alleging, among other claims, that the conversion fee violated the Takings
Clause. The district court, following Williamson County, granted the defendants
summary judgment as to the takings claim on the ground of ripeness. Id. at 330,
125 S. Ct. at 2497. The plaintiffs subsequently sued in state court raising only
state law claims and reserving their Takings Clause claim by reference to England.
See id. at 331 & n.6, 125 S. Ct. at 2497 & n.6. Throughout the course of the state
court case, which went all the way to the California Supreme Court, the parties
litigated and the courts decided the substance of federal constitutional issues in the
form of the state law takings claim. Specifically, the constitutional issue was
which standard governs the question of whether the government’s conversion fee
was a valid assessment in exchange for a building permit. See id. at 333, 125 S.
Ct. at 2498-99. The California Supreme Court held that the lower standard
applied and that the government’s assessment was reasonable and therefore not a
compensable taking. Id.
The plaintiff then re-filed its Takings Clause claim in the federal district
court. The district court held, and the Ninth Circuit affirmed, that California issue
preclusion law applies and that issues raised by plaintiff’s federal constitutional
claim were precluded because the California courts “had interpreted the relevant
substantive state takings law coextensively with federal law.” Id. at 335, 125 S.
11
Ct. at 2500. The Supreme Court affirmed, holding that there is no exception to the
application of issue preclusion as required by § 1738 and Allen for cases in which
the plaintiff is forced to pursue compensation through litigating first in state court.
Id. at 338, 125 S. Ct. at 2501-02. Moreover, the Court emphasized that England
reservations are limited to cases in which there was proper federal jurisdiction
prior to the invocation of Pullman abstention, in other words, when the
“antecedent state issue requiring abstention was distinct from the reserved federal
issue.” Id. at 339, 125 S. Ct. at 2502.
Although the Supreme Court’s reasoning in San Remo Hotel seems to
undercut much of the support for Jennings and Fields, we need not decide now
whether they have been implicitly overruled to the extent that they would permit
the reservation of federal claims in non-Pullman situations. See, e.g., Atlantic
Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir. 2007) (“[T]hat
the reasoning of an intervening high court decision is at odds with that of our prior
decision is no basis for a panel to depart from our prior decision.”). San Remo
Hotel was not a claim preclusion case; it was an issue preclusion case, and because
we need not extrapolate from the holding in San Remo Hotel to decide this appeal,
we will not do so. Accepting arguendo that Agripost has successfully reserved its
federal constitutional claim, we now consider whether it is nonetheless barred by
12
issue preclusion from going forward with that claim.
B.
Florida issue preclusion doctrine forecloses relitigation if: (1) the parties are
identical with those from the prior case, (2) the issues are identical, (3) there was a
full and fair opportunity to litigate the issues and they were actually litigated, and
(4) those issues were necessary to the prior adjudication. See Dadeland Depot,
Inc. v. St. Paul Fire and Marine Ins. Co., 945 So. 2d 1216, 1235 (Fla. 2006). Here,
the parties are the same, the issues forming Agripost’s state takings claim are the
same as those involved in Agripost’s federal takings claim, see, e.g., Graham v.
Estuary Props., Inc., 399 So. 2d 1374, 1380 (Fla. 1981),6 and the resolution of
these issues was necessary for the state court’s decision in favor of the County.
Agripost contends that it did not have a full and fair opportunity to litigate
its state law takings claim because the court did not permit further discovery and
6
Agripost argues that the Dade County Circuit Court’s resolution of the same state and
federal constitutional issue in this case, namely whether a conditional and revocable use permit
can be revoked without effecting a taking, indicates that Florida takings law has taken a “novel
approach” and diverged from federal takings law. However, the court consciously applied what
it thought to be both the federal and state law on the issue. Moreover, in its state court appellate
brief, Agripost argued that state takings law “is governed by Lucas[ v. South Carolina Coastal
Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992)],” acknowledging that the
state and federal law on the relevant takings issues are coextensive. The Third District Court of
Appeal held that the federal and state law on this issue were the same. See Agripost, Inc. v.
Metropolitan Miami-Dade County, 845 So. 2d 918, 920 (Fla. 3d Dist. Ct. App. 2003); cf.
Trafalgar Corp. v. Miami County Bd. of Comm’rs, No. 06-3578, 2008 U.S. App. LEXIS 4475, at
*6-7 (6th Cir. Mar. 3, 2008). Agripost’s real gripe here is that the state court erred, but that of
course is not a defense to collateral estoppel.
13
relied exclusively on the extensive record created in the previous zoning litigation
that ended in the revocation of Agripost’s permit. This argument never leaves the
hangar because the state court concluded, as a matter of law, that Agripost no
longer had a protected property right in their nonconforming use given the
administrative determination – upheld on judicial review – that Agripost had failed
to comply with the terms of its conditional use permit.7 See Agripost, Inc. v.
Metro. Miami-Dade County, 845 So. 2d 918, 920 (Fla. 3d Dist. Ct. App. 2003).
Agripost argued to the state court that it still had a property right, even though it
did not own the land in question and violated of the conditions of its lease when it
lost the use permit, and the state courts rejected the argument. Nothing in that
litigation rendered Agripost’s opportunity to make its case insufficiently “full and
7
Agripost contends that this conclusion is an impermissible application of collateral
estoppel from the zoning litigation. It is not so. The zoning and state takings litigation addressed
distinct issues: the former concerned whether the revocation was justified, see Agripost v.
Miami-Dade County, 195 F.3d 1225, 1232-33 (11th Cir. 1999) (describing earlier zoning
litigation), and the latter concerned whether given a justified revocation there was nonetheless a
compensable taking of private property. See Lake Lucerne Civic Ass’n, Inc. v. Dolphin Stadium
Corp., 878 F.2d 1360, 1370-72 (11th Cir. 1989) (explaining the difference between the two
concepts in Florida law). The Dade County Circuit Court expressly rejected the County’s
argument that the zoning litigation had preclusive effect: “Now, while the prior litigation dealt
with the propriety of the revocation, it didn’t deal with the question of whether it constituted a
taking.” The court made a de novo ruling on the merits, concluding that because Agripost was
determined to have violated the conditions of its unusual use permit – a fact that is undisputed –
Agripost no longer had a valid, compensable property interest in that use, whether or not the
violations amounted to a nuisance under other principles of Florida property law. See Agripost
v. Metro. Miami-Dade County, 845 So. 2d at 920 (Fla. 3d Dist. Ct. App. 2003) (citing
Smalleylogics Corp. v. Dade County, 176 So. 2d 574, 578 (Fla. 3d Dist. Ct. App. 1965)).
14
fair”;8 Agripost is simply not entitled to discovery on claims lacking any legal
basis, as the state court concluded. Florida preclusion law does not allow Agripost
a second bite at the apple, and § 1738 does not permit this court to second-guess
the correctness of the Florida court’s decision on the merits.9 Because a state court
of competent jurisdiction held that Agripost did not have a compensable property
interest, its federal takings claim necessarily fails, and summary judgment for the
County was proper.
III.
For the reasons stated herein, the judgment of the district court is
AFFIRMED.
8
Under Florida law, a full and fair opportunity to litigate an issue does not entail a full
civil trial and its accouterments. See E.I. DuPont de Nemours & Co., Inc. v. Melvin Piedmont
Nursery, 971 So. 2d 897, 898 (Fla. 3d Dist. Ct. App. 2007) (per curiam) (noting that collateral
estoppel applies to judgment rendered as a sanction in prior litigation); Paresky v. Miami-Dade
County Bd. of County Comm’rs, 893 So. 2d 664, 665 (Fla. 3d Dist. Ct. App. 2005) (per curiam)
(finding full and fair opportunity in “quasi-judicial hearing” before County Commission).
9
In any event, it is sufficiently clear under Florida law that Agripost’s use of the
publically owned land was “not part of [its] title to begin with,” Lucas, 505 U.S. at 1027, 112 S.
Ct. at 2899, because it did not own the land and because its use was deemed noxious. See
Marine One, Inc. v. Manatee County, 898 F.2d 1490, 1492 (11th Cir. 1990) (stating that “it is
clear from . . . Florida cases that revocation” of a use permit on publically owned land “would
not constitute a taking of property”); Osceola County v. Best Diversified, Inc., 936 So. 2d 55, 59
(Fla. 5th Dist. Ct. App. 2006) (“The threshold issue on appeal is whether [plaintiff] was entitled
to compensation from the County . . . when his request for a conditional use and permit were
denied based on [a] determination [that] the facility was the cause of noxious odors and
constituted a public nuisance. The answer is clearly no.” (citing Lucas)).
15