Perfect Puppy, Inc. v. City of East Providence

United States Court of Appeals
For the First Circuit
No. 15-1553
PERFECT PUPPY, INC.,
Plaintiff, Appellant,
v.
CITY OF EAST PROVIDENCE, RHODE ISLAND,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
J. David Breemer, with whom Pacific Legal Foundation, Lesley
S. Rich, and Rich Law Associates, were on brief for appellant.
Marc DeSisto, with whom Kathleen M. Daniels, DESISTO LAW, and
Timothy J. Chapman, City Solicitor, City of East Providence, were
on brief, for appellee.
Michael G. Bongiorno, Ian Coghill, and Wilmer Cutler
Pickering Hale and Dorr LLP on brief for The Humane Society of the
United States, amicus curiae.
December 8, 2015
THOMPSON, Circuit Judge.
Prologue
We write today about a suit started in state court and
removed to federal court. As relevant here, Perfect Puppy, Inc.
(our plaintiff) believes it has a rock-solid facial- and as-
applied-takings claim against the City of East Providence (our
defendant) based on a city ordinance banning dog and cat sales.1
A district judge, though, gave any supposed facial claim the boot
on summary judgment for lack of development and remanded the as-
applied claim to state court for lack of subject-matter
jurisdiction. An unhappy Perfect Puppy appeals. But we see no
error with the judge's facial-takings ruling and have no
jurisdiction over the judge's remand order — a dual appraisal that
leads us to affirm in part and dismiss in part. We will explain
our thinking shortly. First, some background.
1 For anyone not in the know: A facial-takings challenge involves
a claim that the ordinance's mere enactment amounts to a taking by
"'den[ying] an owner economically viable use'" of his property.
Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S.
264, 295-96 (1981) (quoting Agins v. Tiburon, 447 U.S. 255, 260
(1980)). An as-applied-takings challenge, contrastingly, involves
a claim that an ordinance's impact "on a specific piece of property
requires the payment of just compensation." Keystone Bituminous
Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494 (1987).
- 2 -
How the Case Got Here
2014 was certainly a whirlwind year for Perfect Puppy.
On April 26, Perfect Puppy signed a lease to use an East Providence
building for a "Puppy Sales store" (a quote from the lease), which
is the only use permitted by the lease. About a month later,
though, on May 20, the East Providence city council introduced and
preliminarily passed an ordinance banning dog and cat sales — we
say "preliminarily" because the ordinance required a second
passage to become effective. The next day, May 21, Perfect Puppy
both received a state "PET SHOP" license (a quote from the license)
and opened its doors for business. But whatever excitement its
owners must have felt quickly vanished after the city council
formally passed the ordinance on June 3.
Not willing to take this lying down, Perfect Puppy sued
East Providence in state court, claiming (among other things) that
the ordinance infracts the equal-protection and due-process
clauses of the state and federal Constitutions and the commerce
clause of the federal Constitution. East Providence removed the
case to federal court on federal-question grounds. See 28 U.S.C.
§§ 1441(a), 1331. Perfect Puppy then amended its complaint to add
a claim that the ordinance so constricted its property rights as
to constitute a regulatory taking, requiring just compensation
under the takings clauses of the state and federal Constitutions.
- 3 -
The parties eventually cross-moved for summary judgment
on stipulated facts. After denying Perfect Puppy's motion, the
district judge granted East Providence summary judgment on all
claims except the takings claim. As for any possible facial-
takings challenge, the judge concluded that Perfect Puppy had not
developed one: Perfect Puppy's passing comment in a fairly lengthy
summary-judgment memo — that it "would . . . argue that this taking
was categorical in nature, and [Perfect Puppy] should be per se
compensated" (a statement which for simplicity's sake we will call
the single-sentence comment) — was not enough to conclude
otherwise. Taking a belt-and-suspenders approach, the judge also
wrote that "[i]nsofar as" Perfect Puppy's single-sentence comment
"constitutes a facial taking claim, it . . . would fail here
because [Perfect Puppy] has not demonstrated that the enactment of
the ordinance categorically deprives its property of any
economically viable use." And noting that Perfect Puppy had not
asked the state for compensation, the judge deemed the as-applied
challenge unripe and so remanded the suit to state court for lack
of subject-matter jurisdiction.
Which brings us to today, with Perfect Puppy contesting
only the judge's handling of the takings claim by attacking his
analysis on multiple fronts.
- 4 -
Facial Takings
Perfect Puppy spends a good deal of time (both orally
and in writing) trying to convince us that it actually asserted a
facial-takings claim below. Color us unconvinced. As the district
judge correctly suggested, Perfect Puppy's single-sentence comment
— i.e., that it "would . . . argue that this taking was categorical
in nature, and [Perfect Puppy] should be per se compensated" —
hardly suffices, given how Perfect Puppy fleetingly floated the
idea below without any analysis or citation. If this is not
perfunctory treatment, we do not know what is. And we have long
made clear that judges need not entertain such ill-developed
arguments. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (holding that "[i]t is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work"); see also Town of Norwood v. Fed. Energy
Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000) (stressing
that "developing a sustained argument out of . . . legal
precedents" is the parties' job, not the court's); Sammartano v.
Palmas del Mar Props., Inc., 161 F.3d 96, 97 (1st Cir. 1998)
(explaining "our well-established rule that arguments may not be
raised for the first time on appeal"); United States v. Slade, 980
F.2d 27, 31 (1st Cir. 1992) (emphasizing that "a party is not at
liberty to articulate specific arguments for the first time on
- 5 -
appeal simply because the general issue was before the district
court").
Seeking a way around the problem, Perfect Puppy talks up
cases — e.g., United States v. Williams, 504 U.S. 36, 43-44 (1992)
— saying that reviewing courts can review an issue not pressed
below if the lower court expressly decided the issue anyway. That
is pretty much our situation, Perfect Puppy basically says, given
how the judge did write that "[i]nsofar as" Perfect Puppy's single-
sentence comment might somehow constitute a facial-takings
challenge, it would not get off the ground. We see it differently,
however: The judge's "insofar as" lingo is a pretty big tip-off
that he did not explicitly decide that Perfect Puppy had indeed
made a facial-takings claim. Actually — and at the risk of
repeating ourselves — the judge found the opposite. And it strains
belief to conclude — as Perfect Puppy has — that the judge then
opted to take a claim he did not espy and resolve it on the merits.
Needless to say, Perfect Puppy's maneuvering does not do the trick.
In something of a last gasp, Perfect Puppy argues that
it "necessarily raise[d] a facial takings claim" because its
amended complaint asked for declaratory relief. This seems like
a mischaracterization — after all, Perfect Puppy asked for
declaratory relief in the takings count's heading, but not in that
count's allegations or prayer-for-relief sections. Even putting
- 6 -
all that aside, though, we know that a litigant can ask for
declaratory relief as part of an as-applied-takings challenge too.
See, e.g., García-Rubiera v. Calderón, 570 F.3d 443, 453 (1st Cir.
2009). Obviously, then, simply asking for declaratory relief
somewhere in the complaint does not mean that a party has brought
a facial challenge.
Enough said on that subject.
As-Applied Takings
Perfect Puppy asks us to review and reverse the judge's
decision characterizing the as-applied-takings claim as unripe
(because Perfect Puppy did not exhaust state remedies) and
remanding the remainder of the case to state court on this ground.
Unfortunately for Perfect Puppy, the insuperable obstacle to doing
so is that we lack appellate jurisdiction.
Summarizing the Law
28 U.S.C. § 1447(d) provides (with exceptions not
relevant here) that "[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or
otherwise."2 Despite the straightforwardness of its language
2 Section 1447(d) reads in full:
An order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court
from which it was removed pursuant to section 1442 or
- 7 -
(banning review by appeal or by any other means dreamt up by
imaginative counsel), section 1447(d), our judicial superiors tell
us, affects only remands under 28 U.S.C. § 1447(c) — a statute
that says (among other things) that "[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded."3 See, e.g., Powerex
Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007)
(noting that Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.
336, 343 (1976), held that courts must read section 1447(d) in
conjunction with section 1447(c)4). So, not to put too fine a
1443 of this title shall be reviewable by appeal or
otherwise.
3 The complete quote is:
A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be
made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.
An order remanding the case may require payment of just
costs and any actual expenses, including attorney fees,
incurred as a result of the removal. A certified copy
of the order of remand shall be mailed by the clerk to
the clerk of the State court. The State court may
thereupon proceed with such case.
4 Regarding Thermtron's holding — that circuit courts can review
cases remanded on grounds having nothing to do with section
1447(c), despite section 1447(d) — not every Justice has been a
fan. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 642
(2009) (Stevens, J., concurring); id. at 642-43 (Scalia, J.,
concurring); see also Osborn v. Haley, 549 U.S. 225, 263-64 (2007)
(Scalia, J., joined by Thomas, J., dissenting); see also Townsquare
Media, Inc. v. Brill, 652 F.3d 767, 772-73 (7th Cir. 2011)
- 8 -
point on it, this means (at least for our purposes) that section
1447(d) definitely bars appellate review of remand orders based on
lack of subject-matter jurisdiction.
As for why section 1447(d) is on the books, we know that
Congress passed this proviso to curb the delay caused by
interlocutory review of orders shifting cases from federal to state
courts — review that does nothing to resolve the cases on the
merits, by the way. See, e.g., Kircher v. Putnam Funds Trust, 547
U.S. 633, 640 (2006). Consistent with that objective and
"assuming" section 1447(d) lets us peek behind the judge's declared
reason for the remand, we look only to see whether his
"characterization of" the remand as being covered by section
1447(c) is "colorable" — i.e., that the "legal ground" for the no-
subject-matter-jurisdiction conclusion is "plausible" or
"debatable." See Powerex Corp., 551 U.S. at 233-34. And if it
is, the order is not reviewable, even if the judge's determination
is wrong. See id. (explaining that "[l]engthy appellate disputes
(indicating that "the Justices have qualms about the rule," because
"[a] footnote in the Carlsbad opinion" — 556 U.S. at 638 n* —
"states that the Court will 'not revisit today whether Thermtron
was correctly decided,'" since "'neither the brief for petitioner
nor the brief for respondents explicitly asked the Court to do so
here,'" which suggests that "[h]ad they asked, the Court might
have obliged, for it said it wouldn't revisit the Thermtron
decision today"). Of course we remain bound by Thermtron until
the day (if it ever comes) the Court tells us we are not. See,
e.g., Hicks v. Miranda, 422 U.S. 332, 345 (1975).
- 9 -
about whether an arguable jurisdictional ground invoked by the
district court was properly such would frustrate the purpose of
§ 1447(d)"); Kircher, 547 U.S. at 641-42 (commenting that "[t]he
District Court said that it was remanding for lack of jurisdiction,
an unreviewable ground, and even if it is permissible to look
beyond the court's own label" — in a footnote, id. at 641 n.9, the
Court left that possibility open — "the orders are unmistakably
premised on the view that . . . the court had no subject-matter
jurisdiction," and adding that if "'the order is based on
[§ 1447(c)'s grounds], review is unavailable no matter how plain
the legal error in ordering the remand'" (quoting Briscoe v. Bell,
432 U.S. 404, 413-14 n.13 (1977)).5
Applying the Law
Turning from generalities to specifics, we see that the
judge remanded what was left of Perfect Puppy's case to state court
for lack of subject-matter jurisdiction. We know this because the
judge — citing and quoting section 1447(c) — ruled that he
"lack[ed] subject matter jurisdiction" here. This is how he
reached that conclusion (we simplify things slightly, repeating
some of what we said earlier): The Constitution does not ban
5 See also Thermtron, 423 U.S. at 343; Harvey v. UTE Indian Tribe
of the Uintah & Ouray Reservation, 797 F.3d 800, 807 (10th Cir.
2015); Townsquare, 652 F.3d at 775-76; Price v. J & H Marsh &
McLennan, Inc., 493 F.3d 55, 61 (2d Cir. 2007).
- 10 -
takings, but only takings without just compensation. See, e.g.,
Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S.
172, 194 (1985) (Williamson, for short). And if the state offers
adequate procedures for seeking just compensation (and Rhode
Island does), then there is no constitutional infraction — and no
takings claim is ripe — until the litigant asks the government for
fair payment and is denied. See id. at 195; see also Marek v.
Rhode Island, 702 F.3d 650, 653 (1st Cir. 2012). We will call
this the state-exhaustion requirement, for easy reference.
Anyhow, noting that Perfect Puppy never asked East Providence for
just compensation, the judge ruled its takings claim not ripe —
which, he also ruled, deprived him of subject-matter jurisdiction
and which then led to the remand under section 1447(c).
Critically, one of our cases — Downing/Salt Pond Partners, L.P. v.
Rhode Island & Providence Plantations, 643 F.3d 16, 20 (1st Cir.
2011) — does describe the state-exhaustion requirement as
jurisdictional. And given this concatenation of circumstances, we
conclude that the lack-of-jurisdiction ground for the remand was
colorable — which means that section 1447(d)'s appellate-review
bar applies with full force. See, e.g., Powerex, 551 U.S. at 234;
Kircher, 547 U.S. at 641-42; Harvey, 797 F.3d at 807-08;
Townsquare, 652 F.3d at 775-76; Price, 493 F.3d at 61.
- 11 -
Though convinced that Downing gave the judge a colorably
jurisdictional basis for the remand, we confess that we are not
100% sure that the state-exhaustion requirement actually is
jurisdictional. Williamson itself never called its requirements
jurisdictional. And as Perfect Puppy is quick to point out, the
Supreme Court recently described the state-exhaustion requirement
as a prudential principle rather than a jurisdictional limitation.
See Horne v. Dep't of Agric., 133 S. Ct. 2053, 2062 (2013) (noting
that the state-exhaustion requirement "is not, strictly speaking,
jurisdictional"); see also Stop the Beach Renourishment, Inc. v.
Florida Dep't of Envtl. Prot., 560 U.S. 702, 729 & n.10 (2010)
(saying in a facial-takings case that the state-exhaustion
requirement is not jurisdictional); Suitum v. Tahoe Regional
Planning Agency, 520 U.S. 725, 733–34 (1997) (calling the state-
exhaustion requirement a "prudential ripeness" hurdle).6
But make no mistake: Even assuming — for argument's
sake — that a party's failure to satisfy the state-exhaustion
requirement is not a colorable ground for a subject-matter-
6 Other circuits, for what it is worth, have read recent Supreme
Court cases as holding that the state-exhaustion requirement is
not jurisdictional. See, e.g., Sherman v. Town of Chester, 752
F.3d 554, 561 (2d Cir. 2014) (citing Sansotta v. Town of Nags Head,
724 F.3d 533, 545 (4th Cir. 2013)); Rosedale Missionary Baptist
Church v. New Orleans City, 641 F.3d 86, 88-89 & n.2 (5th Cir.
2011).
- 12 -
jurisdiction remand, we would still affirm the judge's order here
on the merits. In its lower-court filings, Perfect Puppy only
argued that the state-exhaustion requirement holds no sway because
East Providence removed the case to federal court. True, a
government defendant's removal of a case from state court may waive
otherwise valid objections to litigation in a federal forum. See,
e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.
613, 624 (2002).7 That, however, is not a problem here, given how
Perfect Puppy added its takings claims after removal. Perfect
Puppy raises other arguments aimed at derailing the state-
exhaustion requirement. But they were not developed below and
thus need not be considered here. See Slade, 980 F.2d at 31.
Rejecting Perfect Puppy's Other Arguments
Shifting gears, Perfect Puppy notes that section 1447(d)
says (emphasis Perfect Puppy's) that "[a]n order remanding a case
to the State court from which it was removed is not reviewable."
And it insists that this proviso cannot apply here because the
7A state-university professor there sued the state, asserting both
federal- and state-law claims. Id. at 616. The state removed the
case to federal court and then moved to dismiss based on Eleventh-
Amendment immunity. Id. at 616-17. Noting that it was
inconsistent for the state to invoke federal jurisdiction by
removal, only to turn around and argue that the Eleventh Amendment
deprived the court of jurisdiction, the Supreme Court held that
removing the case was affirmative litigation conduct by which the
state waived its Eleventh-Amendment immunity. See id. at 619,
624.
- 13 -
takings claim was not removed from state court — again, Perfect
Puppy added the claim after East Providence removed the suit. But
Perfect Puppy conveniently overlooks that the statute focuses on
the "case . . . removed," not on the claims removed. And Perfect
Puppy neither cites any case supporting its position (we know of
none, frankly) nor offers a persuasive explanation of what the law
should be (assuming it unearthed no on-point case). So that
argument is waived. See, e.g., Muñiz v. Rovira, 373 F.3d 1, 8
(1st Cir. 2004) (deeming waived skeletal arguments unaccompanied
by "citation to any pertinent authority").
Ever persistent, Perfect Puppy also suggests that
section 1447(c) allows remand only when jurisdiction is lacking at
the time of removal. Because the judge had subject-matter
jurisdiction when East Providence removed the case — Perfect Puppy
added the (unripe) takings claim after removal (we say for the
umpteenth time) — the remand was not a subject-matter-jurisdiction
remand, meaning section 1447(d)'s appellate-review bar does not
apply. Or so Perfect Puppy intimates. But section 1447(c)
requires district judges to remand for lack of subject-matter
jurisdiction "at any time," which means section 1447(d) bars
appellate review of subject-matter-jurisdiction remands made "at
any time." That is what the Supreme Court said in Powerex, 551
U.S. at 232 (seeing nothing in section 1447(c)'s text suggesting
- 14 -
that that provision "covers only cases in which removal itself was
jurisdictionally improper," and holding "that when a district
court remands a properly removed case because it nonetheless lacks
subject-matter jurisdiction, the remand is covered by § 1447(c)
and thus shielded from review by § 1447(d)"). Consequently Perfect
Puppy's intimation is incorrect.
Taking yet another tack, Perfect Puppy notes that the
high Court in Quackenbush v. Allstate Insurance Co. held that
section 1447(d) does not ban appellate review of an abstention-
based remand intended to let a state court resolve hotly contested
points of state law. See 517 U.S. 706, 710-12 (1996) (reviewing
a remand ordered based on "Burford abstention"8). And Perfect
Puppy thinks that the remand order here is just like the
8 Burford abstention takes its name from Burford v. Sun Oil Co.,
319 U.S. 315 (1943). The doctrine tells federal courts "sitting
in equity" not to interfere with "proceedings or orders of state
administrative agencies" when "timely and adequate state-court
review is available" and
(1) when there are "difficult questions of state law
bearing on policy problems of substantial public import
whose importance transcends the result in the case then
at bar"; or (2) where the "exercise of federal review of
the question in a case and in similar cases would be
disruptive of state efforts to establish a coherent
policy with respect to a matter of substantial public
concern."
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 361 (1989) (quoting Colo. River Water Conserv. Dist.
v. United States, 424 U.S. 800, 814 (1976)).
- 15 -
abstention-based remand in Quackenbush, because both remands
effectively "put[]" a party "out of federal court." Ergo, its
argument continues, section 1447(d) does not foreclose appellate
review. But an abstention-based remand is not a section-1447(c)-
based remand — Quackenbush itself says so. See 517 U.S. at 712(emphasizing that the district judge's "abstention-based remand
order does not fall into either category of remand order described
in § 1447(c), as it is not based on lack of subject matter
jurisdiction or defects in removal procedure"). And even a quick
scan of the remand order here shows that lack of subject-matter
jurisdiction — a section-1447(c) ground, as we have taken pains to
make plain — is the "only . . . plausible explanation" for what
put Perfect Puppy out of federal court (the order contains not
even the slightest whisper of a suggestion that abstention
principles played any role), making the order beyond the power of
appellate review. See Powerex, 551 U.S. at 233.
Epilogue
With that and at long last, we affirm the judge's
handling of the facial-takings issue, and we dismiss the appeal
for lack of jurisdiction as to that part of the judge's order
remanding the as-applied claim to state court. Costs to East
Providence.
- 16 -