Case: 11-60279 Document: 00511854568 Page: 1 Date Filed: 05/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2012
No. 11-60279 Lyle W. Cayce
Clerk
DEBRA BOWLBY,
Plaintiff-Appellant
v.
CITY OF ABERDEEN, MISSISSIPPI; CITY OF ABERDEEN, MISSISSIPPI
PLANNING AND ZONING BOARD
Defendants-Appellees
Appeal from the United States District Court for the
Northern District of Mississippi
Before KING, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Plaintiff-Appellant Debra Bowlby appeals from the district court’s grant
of Defendants-Appellees’ Rule 12(b)(6) motion to dismiss. Bowlby sued
Defendants-Appellees the City of Aberdeen, Mississippi (“City”) and the
Aberdeen Planning and Zoning Board (“Board”) for violations of the Fifth
Amendment Takings Clause and for denying her procedural due process and
equal protection under the Fourteenth Amendment. The district court dismissed
all of her claims. Bowlby appeals only the dismissal of her procedural due
process and equal protection claims. Because we find that the district court was
justified in dismissing Bowlby’s equal protection claim, but that it erred in
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No. 11-60279
dismissing her due process claim, we affirm in part, and reverse and remand in
part.
I. BACKGROUND
On July 13, 2009, Bowlby appeared before the Aberdeen Planning and
Zoning Board seeking permission to operate a “Sno Cone” hut at the corner of
Highway 45 and Meridian Street in the city of Aberdeen. Bowlby had already
purchased a small hut from which to operate her business, and she had agreed
to lease the lot at the intersection from its owner. One member of the Board
voiced concerns, as this lot was zoned “C-2,” for larger businesses, and the
intersection at Highway 45 and Meridian Street is the busiest in Aberdeen.
However, the other Board members did not share these concerns and the Board
granted Bowlby the requested permits and told her to proceed with her business
plan. Accordingly, around July 29, 2009, Bowlby opened her business.
On September 14, 2009, the Board again discussed the location of Bowlby’s
business, and decided to revoke the permits it had given her to operate the Sno
Cone hut at that location. Bowlby was not invited to the meeting, nor informed
that the Board was reviewing the issue. The following day, the city building
inspector told Bowlby that she had to immediately close her business, because
the Board had determined that it did not conform to the laws and regulations of
the City. The inspector also gave Bowlby a letter from the Board notifying her
of its decision and the reasons therefor. Those reasons included: (1) that Bowlby
had misled the Board as to the location of her business; (2) that the location
poses a safety concern because the busy intersection was not safe for children;
(3) that the land is zoned C-2 and intended for larger businesses; (4) that the
portable toilet next to Bowlby’s business was an eyesore and a health hazard;
and (5) that the overall look of the business was offensive and not appropriate
for the eastern entrance to the City.
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Section 115.14 of the Aberdeen Zoning Ordinance requires that all appeals
of Board decisions be made to the mayor and Board of Aldermen, and then to the
courts. However, Bowlby did not follow that course, and she instead brought
suit against the City and the Board in the United States District Court for the
Northern District of Mississippi. She claimed that her business was taken
without just compensation, in violation of the Fifth Amendment Takings Clause;
that her business was closed without notice or hearing, in violation of the
Fourteenth Amendment Due Process Clause; and that her business was closed
on a racially discriminatory basis, in violation of the Fourteenth Amendment
Equal Protection Clause. The Defendants-Appellees filed a motion to dismiss
under Rule 12(b)(6), as well as under Rules 21(b)(1)-(3). The district court
granted the motion based on Rule 12(b)(6), relying on the Supreme Court’s
decision in Williamson County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172 (1985). The court held that, under Williamson,
Bowlby’s takings claim was not ripe because she did not first seek just
compensation in a state court for the taking of her business. See id. at 194. In
addition, the court found that Bowlby’s equal protection claim would not exist
but for the taking, such that it, too, was unripe. The court also held that the
Board had not violated Bowlby’s due process rights because there had not yet
been a final deprivation by the state, since she had not appealed the decision to
revoke permission to operate her business.
II. STANDARD OF REVIEW
We review a district court’s grant of a motion to dismiss de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th
Cir. 2010) (quotation marks and citation omitted). However, those facts, “taken
as true, [must] state a claim that is plausible on its face.” Amacker v.
Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011) (citation
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omitted). “A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A
complaint is insufficient if it offers only “labels and conclusions,” or “a formulaic
recitation of the elements of a cause of action.” Id. (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
III. ANALYSIS
On appeal, Bowlby argues that she had a property interest in being
allowed to operate her business, and that the Board’s revocation of her business
permits without prior notice or hearing violated her Fourteenth Amendment
right to procedural due process. She also claims that the closing of her business
was racially discriminatory, in violation of her equal protection rights. Her
appeal is supported by an amicus curiae brief submitted by the Pacific Legal
Foundation (“Foundation”), a charitable organization dedicated to preserving the
individual right to make reasonable use of private property. The Foundation
argues that the district judge incorrectly applied a ripeness requirement to
Bowlby’s procedural due process claim, because that claim was actionable as
soon as a predeprivation hearing was denied. Furthermore, the Foundation
argues that Bowlby was not required to exhaust administrative remedies in
order to bring a claim under 42 U.S.C. § 1983, and that her due process claim is
ripe without an appeal to a higher administrative authority. In defense of both
Bowlby’s due process and equal protection claims, the Foundation states that
they are their own, separate causes of action, and not barred by the fact that her
takings claim was unripe.
The Defendants-Appellees respond that Bowlby’s due process claim fails
because she has no protected property interest in operating the Sno Cone hut at
a preferred location in Aberdeen. In addition, even if Bowlby had a protected
property interest, she did not appeal the Board’s decision. Thus, there was no
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decision from the final decision-making authority, such that the deprivation of
Bowlby’s property was not final. As for Bowlby’s equal protection claim, the
Defendants-Appellees argue that it flows directly from her takings claim, and
would not exist except for the alleged taking. Since Bowlby’s takings claim was
unripe, her equal protection claim is barred for the same reason.
We will address Bowlby’s due process and equal protection claims in turn.
A. Procedural Due Process
To begin, we disagree with the Defendants-Appellees that Bowlby did not
have a property interest in her business permits. “Privileges, licenses,
certificates, and franchises . . . qualify as property interests for purposes of
procedural due process.” Wells Fargo Armored Serv. Corp. v. Ga. Pub. Serv.
Comm’n, 547 F.2d 938, 941 (5th Cir. 1977). This is because, once issued, a
license or permit “may become essential in the pursuit of a livelihood.” Bell v.
Burson, 402 U.S. 535, 539 (1971). Here, the Board issued permits to Bowlby,
allowing her to operate a business “in the pursuit of a livelihood.” Id. As such,
we find that she had a property interest in the permits. Furthermore, the Board
permitted Bowlby to operate her business at the corner of Highway 45 and
Meridian Street, where she had leased property for that purpose. Therefore,
unlike Defendants-Appellees’ contention, she is not seeking to protect a property
interest merely “in her preferred location,” but in the specific location that the
Board approved. We agree with the Defendants-Appellees that “the [Z]oning
[B]oard has broad discretion to determine the appropriate locations for certain
types of businesses within the City of Aberdeen,” but once the Board issued
permits for Bowlby to operate her business at a designated intersection, she had
a property interest in those permits, and by extension in operating at the
location it identified.
Because permits and licenses relate to the maintenance of a person’s
livelihood, “[s]uspension of issued licenses . . . involves state action that
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adjudicates important interests of the licensees.” Bell, 402 U.S. at 539; see also
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“We have
frequently recognized the severity of depriving a person of the means of
livelihood.”). Therefore, once issued, a license or permit cannot be taken away
by the State without due process. Bell, 402 U.S. at 539. “[T]o determine
whether a constitutional violation has occurred, it is necessary to ask what
process the State provided, and whether it was constitutionally adequate.”
Zinermon v. Burch, 494 U.S. 113, 126 (1990). The Supreme Court has held that
“[t]he fundamental requirement of due process is the opportunity to be heard at
a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424
U.S. 319, 333 (1976) (quotation marks and citation omitted). In most cases, “a
meaningful time” means prior to the deprivation of the liberty or property right
at issue. Zinermon, 494 U.S. at 127; see also Caine v. Hardy, 943 F.2d 1406,
1411-12 (5th Cir. 1991) (“Ordinarily, government may effect a deprivation only
after it has accorded due process . . . .”).1
There are “three distinct factors for a court to weigh in considering
whether the procedural due process provided is adequate: ‘First, the private
interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
1
When the State must act quickly or predeprivation process is impracticable, and
meaningful postdeprivation process is available, then due process is still satisfied. Parratt v.
Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327, 330-31 (1986). Thus, when the deprivation of a protected liberty or property interest is
the “result of a random and unauthorized act by a state employee,” which the State cannot
foresee, postdeprivation process is sufficient. Id. at 541; see also Hudson v. Palmer, 468 U.S.
517, 533 (1984); Zinermon, 494 U.S. at 132; Brooks v. George Cnty., Miss., 84 F.3d 157, 165
(5th Cir. 1996). However, as the district court correctly found, Bowlby was due predeprivation
process, because the revocation of her business permits was not random or unauthorized.
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requirement would entail.’” Meza v. Livingston, 607 F.3d 392, 402 (5th Cir.
2010) (quoting Matthews, 424 U.S. at 335)).
The district court found that Bowlby was due predeprivation process, and
we agree. Applying the Matthews factors, the private interest affected by the
Board’s action was Bowlby’s ability to operate her business, which, as we have
stated, is recognized by courts as an important right. See Bell, 402 U.S. at 539.
The Defendants-Appellees did not provide any process prior to revoking Bowlby’s
permits, which increases the risk of an erroneous deprivation, and means that
any procedural safeguards would be highly valuable. Finally, while the City
may have a strong interest in properly regulating businesses, we do not find that
providing some sort of predeprivation procedure would be overly burdensome.
“‘[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.’” Meza, 607 F.3d at 404 (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)). Thus, the Matthews balancing test “permits
varied types of hearings, from informal to more formal evidentiary hearings.”
Ecee, Inc. v. FERC, 645 F.2d 339, 352 (5th Cir. 1981). In a situation such as
Bowlby’s, however, due process demands more than no hearing at all. See, e.g.,
Loudermill, 470 U.S. at 542 (“We have described ‘the root requirement’ of the
Due Process Clause as being ‘that an individual be given an opportunity for a
hearing before he is deprived of any significant property interest.’” (quoting
Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); Fuentes v. Shevin, 407 U.S. 67,
86 (1972) (“While the length and consequent severity of a deprivation may be
another factor to weigh in determining the appropriate form of hearing, it is not
decisive of the basic right to a prior hearing of some kind.”).
The district court also held that Bowlby “has not yet been denied such
process,” because her “pre-deprivation hearings are the appeal to the Mayor and
Board of Alderman and if necessary, to the circuit court that serves as an
appellate court for the decision.” Since her “property interest has not been
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effectively destroyed, as the Mayor and Board of Alderman could theoretically
disagree with the Zoning Commission’s decision tomorrow,” a “[d]eprivation by
the state has not yet occurred.” It is with this finding that we disagree.
“Procedural due process considers not the justice of a deprivation, but only
the means by which the deprivation was effected.” Caine, 943 F.2d at 1411.
Thus, the injury that stems from a denial of due process is not the liberty or
property that was taken from the plaintiff, but the fact that it was taken without
sufficient process. See Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949
F.2d 890, 894 (6th Cir. 1991) (stating that, “[c]onceptually, in the case of a
procedural due process claim, ‘the allegedly infirm process is an injury in itself’”
(quoting Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir. 1989)). A due
process injury is therefore complete at the time process is denied. See, e.g.,
Zinermon, 494 U.S. at 125 (stating that “the constitutional violation actionable
under § 1983 is complete when the wrongful action is taken”); Burns v. Pa. Dep’t
of Corr., 544 F.3d 279, 284 (3d Cir. 2008) (“Accordingly, a procedural due process
violation is complete at the moment an individual is deprived of a liberty or
property interest without being afforded the requisite process.”); Nasierowski,
949 F.2d at 894 (“Nasierowski’s injuries accrued and attached immediately when
Council convened in executive session and materially deviated from the
recommendations of the planning commission, thus subverting the purpose of
the duly conducted notice and comment process.”). Consequently, “no later
hearing and no damage award can undo the fact that the arbitrary taking that
was subject to the right of procedural due process has already occurred.”
Fuentes, 407 U.S. at 82.
In addition, exhaustion of state remedies is not required before a plaintiff
can bring suit under § 1983 for denial of due process. Patsy v. Bd. of Regents of
State of Fla., 457 U.S. 496, 516 (1982); James v. Gonzales, 464 F.3d 505, 513 n.46
(5th Cir. 2006). Consequently, Bowlby was not required to go through the
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appeal process set out in the Aberdeen Zoning Ordinance in order to state a
cognizable procedural due process claim. Because, as the district court
recognized, Bowlby was due predeprivation process, she suffered a due process
injury when the City revoked her business permits, notwithstanding the fact
that they may have been reinstated at some later date had she appealed the
Board’s decision. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“Even if
respondents’ suspensions were justified, and even if they did not suffer any other
actual injury, the fact remains that they were deprived of their right to
procedural due process.”); Nasierowski, 949 F.2d at 894 (“In sum, Nasierowski’s
injury stemming from the deprivation of procedural due process was
immediately sustained and concretely felt, notwithstanding the absence of a
‘final’ decision from the City concerning the appropriate development of the
property.”).
As the Supreme Court has stated, “[i]n procedural due process claims, the
deprivation by state action of a constitutionally protected interest in ‘life, liberty,
or property’ is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.” Zinermon, 494 U.S.
at 125 (emphasis original); see also Carey, 435 U.S. at 259 (“Procedural due
process rules are meant to protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property.”). Thus, even due
process violations with de minimus damages are constitutionally-cognizable
claims, “[b]ecause the right to procedural due process is ‘absolute’ in the sense
that it does not depend upon the merits of a claimant’s substantive assertions,
and because of the importance to organized society that procedural due process
be observed.” Carey, 435 U.S. at 266. Thus, “the denial of procedural due
process [is] actionable for nominal damages without proof of actual injury.” Id.
For takings claims, however, damages are calculated based on the value of the
property of which the State has deprived the plaintiff. See Palazzolo v. Rhode
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Island, 533 U.S. 606, 625 (2001) (“When a taking has occurred, under accepted
condemnation principles the owner’s damages will be based upon the property’s
fair market value[.]”).
On appeal, both parties make arguments based on the Supreme Court’s
decision in Williamson County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172 (1985). According to the Defendants-Appellees,
under Williamson County, “a final decision from the final decision-making
authority was required” for Bowlby’s due process claim to be ripe. See id. at 186
(“Because respondent has not yet obtained a final decision regarding the
application of the zoning ordinance and subdivision regulations to its property
. . . respondent’s claim is not ripe.”). Since Bowlby did not appeal the Board’s
decision to the mayor or Board of Alderman, the Defendants-Appellees argue
that she did not have a final decision regarding her property, and thus her claim
was unripe. The Foundation counters that, in the context of a traditional
procedural due process claim such as Bowlby’s, “the injury and issue . . . is the
opportunity for a hearing, not the extent of restrictions on property use, [such
that] a Williamson County final decision–one exposing interference with
property use–is not required.”
We agree with the Foundation that the Williamson County final-decision
requirement makes more sense when the taking alleged is a regulatory taking.
As the Court stated in Williamson County, resolution of whether a regulation
goes too far “depends, in significant part, upon an analysis of the effect the
[government’s] application of the [ordinances and regulations at issue] had on
the value of respondent’s property and investment-backed profit expectations,”
and “[t]hat effect cannot be measured until a final decision is made as to how the
regulations will be applied to respondent’s property.” Id. at 200. In Bowlby’s
case, however, her business permits were definitively taken away. While it is
possible that, had she appealed to the mayor or Board of Alderman, she may
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have regained her permits, the actual taking is “irreversible,” unlike the
application of a regulation. Mackey v. Montrym, 443 U.S. 1, 21 (1979) (“When
a deprivation is irreversible–as is the case with a license suspension that can at
best be shortened but cannot be undone–the requirement of some kind of hearing
before a final deprivation takes effect is all the more important.”); Dison v. Love,
431 U.S. 105, 113 (1977) (“[A] licensee is not made entirely whole if his
suspension or revocation is later vacated.”).
More importantly, under this Court’s precedents, a procedural due process
claim that is brought concurrently with a takings claim, such as Bowlby’s,
should be analyzed not under the principles of Williamson County, but according
to “general ripeness principles.” Rosedale Missionary Baptist Church v. New
Orleans City, 641 F.3d 86, 90 (5th Cir. 2011). In this regard, this Court has
distinguished procedural due process claims that “involve allegations of
deprivations ‘ancillary’ to or ‘arising from’ a takings claim” from those “whose
main thrust . . . is not a claim for a taking.” Hidden Oaks Ltd. v. City of Austin,
138 F.3d 1036, 1045 n.6 (5th Cir. 1998) (citing Bigelow v. Mich. Dept. of Natural
Res., 970 F.2d 154, 160 (6th Cir. 1992); Harris v. Riverside Cnty., 904 F.2d 497,
501 (9th Cir. 1990)). The ripeness of the former depends on the ripeness of the
“ancillary” takings claim, while the ripeness of the latter is a separate matter
from the ripeness of any attendant takings claim. In Rosedale Church, the City
of New Orleans demolished a church building without first giving notice to the
church. Rosedale Church, 641 F.3d at 87. The church then sued for violation of
its procedural and substantive due process rights, as well as for just
compensation under the Takings Clause. Id. at 88. This Court held that the
church’s procedural due process claim was not ripe because, “where the injury
that resulted from an alleged procedural 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.” Id. at 91. Because under
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Williamson County state procedures must be used to adjudicate any takings
claim, the Rosedale Church court could not decide the takings claim itself, and
therefore hear the church’s due process claim, as well. Id. Finally, the Court
found that allowing the “state-court takings claim to run its course” would not
cause any hardship to the church. Id. Thus, since “[t]he ripeness inquiry
involves ‘(1) the fitness of the issue for judicial decision and (2) the hardship to
the parties of withholding court consideration,” the Court held that the church’s
claims were unripe. Id. (quoting Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
538 U.S. 803, 808 (2003)).
The decision in Rosedale was based on an earlier case, John Corp. v. City
of Houston, 214 F.3d 573, 586 (5th Cir. 2000). In John Corp., the plaintiff
alleged that the City of Houston had thwarted his efforts to renovate an
apartment complex, culminating in allowing forty-one of the buildings to be
demolished by a moving company. Id. at 575. This Court upheld the dismissal
of John Corp.’s claims, noting that under Williamson County, one of the
requirements for a ripe takings claim is a final decision, and citing cases from
other circuits applying this finality requirement to substantive due process,
equal protection, and procedural due process claims. Id. at 584. However, the
Court found that finality was not an issue in John Corp.,2 such that Williamson
County’s requirements need not be applied to claims other than a proper takings
claim. Id. at 585. Instead, the Court held that John Corp.’s procedural due
process claim was unripe, based not on Williamson County, but on “the general
rule that a claim is not ripe if additional factual development is necessary.” Id.
at 586. The takings claim was unripe because the plaintiffs had not yet sought
just compensation, “and it will only be when a court may assess the takings
2
We assume that finality was not an issue in John Corp. because the buildings owned
by John Corp. had been destroyed.
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claim that it will also be able to examine whether Appellants were afforded less
procedure than is constitutionally required.” Id.
In John Corp., the Court distinguished a previous case, Hidden Oaks Ltd.
v. City of Austin, 138 F.3d 1036 (5th Cir. 1998), where the Court held that
“plaintiffs asserted a violation of their procedural due process rights that
inflicted an injury separate from any takings claim that was dismissed prior to
trial.” Id. Conversely, in John Corp., the plaintiffs “assert[ed] that they were
denied the pre-demolition procedure required by the Constitution,” such that
their procedural due process claim was subsumed by their takings claim. Id. It
is on this basis that we find that the present case can be distinguished from
Rosedale Church and John Corp. In both Rosedale Church and John Corp., the
plaintiffs’ physical property was destroyed, such that the only injury they could
claim was the loss of that property. See Rosedale Church, 641 F.3d at 91 (“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.”).
Consequently, the only calculable damages were the value of the demolished
properties. Thus, as the Rosedale Church Court noted, there was a concern that
“a decision by this court that the church was entitled to the value of its
demolished property would permit an end-run around” the Williamson County
requirement that a plaintiff seek just compensation before bringing a takings
claim and potentially receiving the fair value of her property. Id.
In the present case, however, Bowlby is not claiming the value of any
destroyed real property. Instead, in the district court she claimed both that
process was due before revoking her business permits, and that her business was
destroyed as a result of that revocation. Therefore, Bowlby has not stated a due
process claim that is “ancillary” to her takings claim, but rather one that is
separately cognizable–a property interest in the permits to operate her business,
not just in the business itself. Hidden Oaks, 138 F.3d at 1045 n.6 (5th Cir. 1998)
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(citing Bigelow v. Mich. Dep’t of Natural Res., 970 F.2d 154, 160 (6th Cir. 1992),
Harris v. Cnty. of Riverside, 904 F.2d 497, 501 (9th Cir. 1990)). To be clear, “[i]n
contrast to [her] taking[s] claim, . . . [Bowlby’s] procedural due process claim
challenges the [permitting] decision in isolation, as a single decision with its own
consequences, rather than as one in a series of [City] actions resulting in a
taking.” Harris, 904 F.2d at 501. As the Ninth Circuit has noted, “[t]wo or more
legal theories may cover the same conduct and a plaintiff is entitled to prove
each claim according to its terms.” Sinaloa Lake Owners Ass’n v. City of Simi
Valley, 882 F.2d 1398, 1404 (9th Cir. 1989), overruled on other grounds by
Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996). Additionally, in this
instance we do not share the Rosedale Church court’s concern that a procedural
due process claim will create an end-run around the requirement that a plaintiff
seek just compensation, because Bowlby’s potential damages for a due process
violation and a takings claim are not necessarily identical. Any award she
receives for the perfunctory revocation of her business permits could be very
different, and potentially much smaller, than the value of her entire business.3
Indeed, she may receive merely nominal damages, if a court finds that the only
injury stated is the lack of process itself. See, e.g., Zinermon, 494 U.S. at 126
n.11 (“[I]n cases where the deprivation would have occurred anyway, and the
lack of due process did not itself cause any injury (such as emotional distress),
the plaintiff may recover only nominal damages.”); Carey, 435 U.S. at 266
(“[T]the denial of procedural due process should be actionable for nominal
damages without proof of actual injury.”).
Additionally, applying basic ripeness principles, Bowlby’s claim as to her
business permits is amenable to a court decision at this time. She has an injury
3
For instance, a court could award damages based on the amount of time Bowlby’s
business may have continued to operate while the City provided process to determine whether
her business permits should be revoked.
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separate from any potential taking, as well as a final decision by the Board.
Furthermore, whether or not compensation is due Bowlby for the value of her
business will not assist a court in determining what process the City should have
provided her prior to taking away her business permits. See John Corp., 214
F.3d at 586 (stating that “a claim is not ripe if additional factual development
is necessary”); Rosedale Church, 641 F.3d at 91 (stating that “where the injury
that resulted from an alleged procedural 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”). Therefore, we find that
Bowlby’s claim meets the first ripeness requirement, because it is fit for judicial
decision. Nat’l Park Hospitality Ass’n, 538 U.S. at 808.
Applying the second prong of the ripeness test, we also find that
withholding court consideration of Bowlby’s procedural due process claim would
cause her further hardship. See id. Her due process rights were violated, and
thus far, she has had no recourse. She is also being forced to wait to find out if
a court will award her any damages, and if so, in what amount. Since her
potential due process damages are not dependent on any decision as to her
takings claim, requiring that she continue to wait does not benefit either party.
“There are many intangible rights that merit the protection of procedural
due process although their infringement falls short of an exercise of the power
of eminent domain for which just compensation is required under the Fifth and
Fourteenth Amendments.” Landmark Land Co. of Okla., Inc. v. Buchanan, 874
F.2d 717, 723 (10th Cir. 1989), abrogated on other grounds by Federal Lands
Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1195-96
(10th Cir. 1999). Here, we find that Bowlby’s property right in the business
permits the Board granted to her merited the protection of procedural due
process before the Board could revoke it. Even if a court were to decide that the
Defendants-Appellees did not violate the Takings Clause by causing Bowlby to
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lose her business, they still violated her right to procedural due process. The
provision of adequate due process not only helps to prevent unwarranted
deprivations, but also “serve[s] the purpose of making an individual feel that the
government has dealt with [her] fairly.” Williamson Cnty., 473 U.S. at 195 n.14.
Bowlby was denied such fair treatment, and her due process claim will help to
remedy that loss. We therefore reverse the district court’s dismissal of Bowlby’s
procedural due process claim.
B. Equal Protection
The district court also dismissed Bowlby’s equal protection claim, holding
that it flowed from her takings claim and was thus unripe. On appeal, Bowlby
argues that her complaint alleged that she was treated differently as a white
business owner than were black business owners, and that “differing treatment
based upon race is the epitome of a violation of the Equal Protection Clause of
the Fourteenth Amendment[.]” We agree with the district court that Bowlby has
failed to state a viable equal protection claim, though we affirm on other
grounds. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (“We can,
of course, affirm the district court’s judgment on any grounds supported by the
record.”).
Bowlby is correct that “[t]he Equal Protection Clause protects individuals
from governmental action that works to treat similarly situated individuals
differently.” John Corp., 214 F.3d at 577. In addition, the main purpose of the
Equal Protection Clause is to prevent official conduct that discriminates on the
basis of race. Washington v. Davis, 426 U.S. 229, 239 (1976). “To state a claim
of racial discrimination under the Equal Protection Clause and section 1983, the
plaintiff ‘must allege and prove that [she] received treatment different from that
received by similarly situated individuals and that the unequal treatment
stemmed from a discriminatory intent.’” Priester v. Lowndes Cnty., 354 F.3d
414, 424 (5th Cir. 2004) (quoting Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir.
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2001) (per curiam)); see also Village of Arlington Hts. v. Metro. Housing Dev.
Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection Clause.”). Here,
Bowlby’s equal protection allegations are as follows: “Plaintiff is a white person.
The Defendants have not closed any business of a black person or alleged failure
to comply with laws and regulations even though such non-compliance with laws
and regulations by black businesses exist.” This is insufficient to “state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
As stated earlier, a plaintiff must “‘state a claim that is plausible on its
face.’” Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 145 (5th Cir.
2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.
A complaint is insufficient if it offers only “labels and conclusions,” or “a
formulaic recitation of the elements of a cause of action.” Id. (quoting Twombly,
550 U.S. at 555). Bowlby’s complaint simply states that no black-owned
businesses have been closed, and that there are black-owned business operating
despite their non-compliance with City laws and regulations. She then
summarily concludes that this amounts to a denial of equal protection.
Nowhere, however, does she allege that the Defendants-Appellees’ treatment of
her is the result of intentional discrimination. Furthermore, Bowlby pleads no
facts to establish that she and the black business owners to whom she broadly
refers are similarly situated. For instance, there are no allegations regarding
the types of businesses owned by black individuals, the size of their businesses,
where they are located, or what laws and regulations they have violated. Bowlby
therefore provides mere “labels and conclusions,” and consequently has failed to
state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal of Plaintiff-Appellant
Debra Bowlby’s equal protection claim. We REVERSE the district court’s
dismissal of her procedural due process claim, and REMAND for further
proceedings consistent with this opinion.
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