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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2007 Decided May 25, 2007
No. 06-7004
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. 04cv01170)
Elaine J. Mittleman argued the cause and filed the briefs for
appellants.
Paul J. Kiernan argued the cause for appellees the District
of Columbia and National Capital Revitalization Corporation.
With him on the brief were Linda Singer, Attorney General,
Office of Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General, Edward E. Schwab, Deputy Solicitor
2
General, and Donna M. Murasky, Senior Assistant Attorney
General.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal arises out of the
District of Columbia’s decision to renovate the Skyland
Shopping Center area in Southeast Washington, D.C. Following
the enactment of the National Capital Revitalization Corporation
(“NCRC”) Eminent Domain Clarification and Skyland Eminent
Domain Approval Amendment Act of 2004 (“2004 Skyland
Act”), 52 D.C. Reg. 859 (Dec. 29, 2004), several property
owners, tenants, and an employee of the Skyland Shopping
Center sued to enjoin the commencement of eminent domain
proceedings. They also sought a declaratory judgment that the
2004 Skyland Act violated the takings, due process, and equal
protection provisions of the Fifth Amendment, and that the
District of Columbia had exceeded its authority in enacting the
statute. The district court dismissed the complaint on the ground
that the just compensation challenge was not ripe. Rumber v.
District of Columbia, 427 F. Supp. 2d 1, 3 (D.D.C. 2005).
Because the district court did not address the public use claim,
we reverse that part of the dismissal and remand the case to the
district court.
I.
In 2004 and 2005, the Council of the District of Columbia
enacted a series of laws pertaining to the eminent domain power
of NCRC with regard to the Skyland Shopping Center area (“the
3
Skyland Acts”).1 The 2004 Skyland Act, which authorized
NCRC to exercise eminent domain power to acquire the Skyland
Shopping Center, took effect on April 5, 2005.
On July 13, 2004, several property owners, tenants, and an
employee of the Skyland Shopping center (“appellants”) filed a
complaint in the United States District Court for the District of
Columbia against the District of Columbia and NCRC
(hereinafter collectively “the District”). Attempting to prevent
the exercise of eminent domain at the Skyland Shopping Center,
they alleged, in their third amended complaint, that the
enactment and execution of the Skyland laws violated the
takings, due process, and equal protection provisions of the Fifth
Amendment. Compl. ¶¶ 5, 105, 114, 121, 130, 135. Although
the complaint included a just compensation challenge, a central
allegation in the complaint, similar to that in Kelo v. City of New
London, 545 U.S. 469, 476-77 (2005), was that the taking would
not serve a public purpose. See Compl. ¶¶ 106, 114.
The district court granted the District’s motion to dismiss
the complaint for lack of subject matter jurisdiction pursuant to
FED. R. CIV. P. 12(b)(1). Relying on Williamson County Reg’l
Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186-87, 194
(1985), in which the Supreme Court held that a just
1
See National Capital Revitalization Corporation Eminent
Domain Clarification and Skyland Eminent Domain Approval
Emergency Amendment Act of 2004, 51 D.C. Reg. 5967 (May 21,
2004); National Capital Revitalization Corporation Eminent Domain
Clarification and Skyland Eminent Domain Approval Congressional
Review Emergency Amendment Act of 2004, 51 D.C. Reg. 8983
(Aug. 2, 2004); National Capital Revitalization Corporation Eminent
Domain Clarification and Skyland Eminent Domain Approval
Temporary Amendment Act of 2004, 51 D.C. Reg. 6743 (June 23,
2004).
4
compensation claim is not ripe until a government entity has
made a final decision with regard to the property at issue and the
plaintiff has sought compensation through State procedures, the
district court held that its review of Fifth Amendment challenges
was premature “until [] a taking occurs, and [] [the District of
Columbia] provides, or fails to provide, compensation.”
Rumber, 427 F. Supp. 2d at 5. If just compensation was
provided, the district court concluded that there would be no real
controversy among the parties. Id. at 5-6. The district court
noted, in dismissing the complaint as unripe, that if
condemnation proceedings were commenced, appellants would
have an opportunity to raise their constitutional challenges in the
District of Columbia courts. Id. at 5.
Appellants appeal on the ground that Williamson County is
inapplicable to their physical takings claim.
II.
The Fifth Amendment to the Constitution provides, in
relevant part:
No person shall . . . be deprived of . . . property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
U.S. CONST. amend. V. The Fifth Amendment thus prohibits
takings without just compensation and takings for a private
purpose. A taking for a private purpose is unconstitutional even
if the government provides just compensation. See Haw. Hous.
Auth. v. Midkiff, 467 U.S. 229, 241 (1984).
In treating appellants’ claims under the Fifth Amendment
as just compensation claims, the district court overlooked their
public use claim. The first claim in appellants’ third amended
5
complaint alleged, in relevant part, that “[t]he Skyland Acts
violate the Fifth Amendment by permitting the taking of
plaintiffs’ property without a valid identified public use” and
that “[b]ecause of their speculative nature, the projected
purposes of economic benefit, alleviating unemployment, and
revitalizing the economic base of the community do not
constitute [a] public use.” Id. ¶¶ 106, 108. The second claim
alleged that “[t]he planned taking is for a private use and not for
a public use.” Id. ¶ 114. The complaint also alleged that the
Skyland Acts authorize the taking of property “for the advantage
of other private interests” and the taking of more property than
is “needed to accomplish the claimed public use.” Id. ¶¶ 109,
110.
The circuit courts of appeals to address the issue have held
that Williamson County’s ripeness requirements do not apply to
a public use claim. See Theodorou v. Measel, 53 F. App’x 640,
643 (3d Cir. 2002); Montgomery v. Carter County, 226 F.3d
758, 766-67 (6th Cir. 2000); McKenzie v. City of White Hall,
112 F.3d 313, 317 (8th Cir. 1997); Armendariz v. Penman, 75
F.3d 1311, 1320-21 & n.5 (9th Cir. 1996) (en banc); Samaad v.
City of Dallas, 940 F.2d 925, 936-37 (5th Cir. 1991). But see
Forseth v. Village of Sussex, 199 F.3d 363, 370 (7th Cir. 2000).
In Montgomery, the Sixth Circuit explained:
Because the [plaintiffs’] claim is that their property has
been taken for a strictly private use, state eminent
domain proceedings are unnecessary to determine
whether there has been a constitutional violation.
Private-use takings . . . are unconstitutional regardless
of whether just compensation is paid. . . . Requiring a
plaintiff to wait before suing in federal court, when her
sole claim is that she was dispossessed of property for
a private use, would have only one apparent purpose –-
to force the plaintiff to vet her claims in state
6
proceedings . . . before the claims can be aired in
federal court. But forcing the plaintiff to pursue state
“remedial” procedures would be an exhaustion
requirement, a requirement that Williamson County
explicitly does not impose.
Montgomery, 226 F.3d at 766-67. The one circuit taking a
different view interprets Williamson County very broadly. See
Forseth, 199 F.3d at 369-70 n.8 (citing Covington Court, Ltd. v.
Village of Oak Brook, 77 F.3d 177, 178-79 (7th Cir. 1996)).
This court has not addressed whether Williamson County applies
to public use claims. We find the reasoning of the majority of
the circuits persuasive because the Fifth Amendment Takings
Clause protects two distinct rights and Williamson County does
not explicitly require exhaustion for all Fifth Amendment
claims. We, therefore, hold that the ripeness requirements of
Williamson County do not apply to public use claims under the
Fifth Amendment. Because appellants challenged the Skyland
Acts as a “taking [] for a private use and not for a public use,”
Compl. ¶ 114; see also id. ¶¶ 106, 109, we reverse the dismissal
of the complaint with respect to the public use claim.
Appellants also raised due process and equal protection
claims. Even the circuit court of appeals interpreting
Williamson County very broadly has recognized that bona fide
equal protection claims arising from land use decisions may be
made independently of a takings claim and not be subject to
Williamson County ripeness requirements. See Forseth, 199
F.3d at 370 (citing Hager v. City of West Peoria, 84 F.3d 865,
869-70 (7th Cir. 1996)). That court also has taken the position
that awarding the types of relief appellants have requested — an
order declaring the Skyland Acts unconstitutional and injunctive
relief barring exercise of eminent domain power — “would
render Williamson County’s holding nugatory.” Patel v. City of
Chicago, 383 F.3d 569, 574 (7th Cir. 2004); see id. at 573.
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Here, the District maintains that appellants’ allegations
regarding the 2004 Skyland Act — claims that it severely
reduced the value of their property and leases, Compl. ¶ 115,
placed their livelihoods at risk, id. ¶ 122, and specifically
targeted and affected plaintiffs and their businesses and
property, id. ¶ 117 — state a takings claim rather than an equal
protection or due process claim. See Patel, 383 F.3d at 573. In
their reply brief, appellants do not explicitly challenge the
District’s characterization of their due process and equal
protection claims. Although appellants maintain that in view of
the commencement of condemnation proceedings in the District
of Columbia courts their claims are ripe, appellants’ focus is on
their public use claim. We therefore remand only their public
use claim to the district court.
Finally, appellants’ challenge to the authority of the District
of Columbia is without merit. Congress has delegated
legislative powers to the District government. See D.C. CODE §§
1-203.02, 1-204.04(b), 16-1311; District of Columbia v. John R.
Thompson Co., 346 U.S. 100, 110 (1953); Marijuana Policy
Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002).
Consequently, the District government’s delegation of eminent
domain authority to the NCRC does not involve an improper
redelegation, particularly as the statute establishing NCRC, see
D.C. CODE §§ 2-1219.01-1219.29, requires the D.C. Council to
approve any eminent domain action, see id. § 2-1219.19(b); see
generally 1A NICHOLS ON EMINENT DOMAIN § 3.03[4].
Accordingly, we reverse the dismissal of appellants’ public
use claim as unripe and remand that part of the case to the
district court. Upon remand, the district court should address the
District’s other grounds for dismissal of the complaint, including
the standing of individual appellants, res judicata as may arise
from the condemnation proceedings in the District of Columbia
courts, and, in its discretion, abstention.