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Water Log 29.1, May, 2009

Eleventh Circuit Affirms Dismissal where Claimant Failed to Exhaust State Remedies

Busse v. Lee County,2009 U.S. App. LEXIS 5055 (11th Cir. Fla. Mar. 5, 2009).

Timothy M. Mulvaney, J.D.

The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s dismissal of Plaintiff’s claim that Lee County, Florida had taken his coastal property without just compensation, as the claimant failed to seek compensation in state court prior to filing the inverse condemnation claim in federal court.

Background
In 1969, the Board of Commissioners of Lee County, Florida (“Board”) adopted a resolution claiming certain lands in the Cayo Costa subdivision as public lands (“the Resolution”).1 In the Resolution, which referenced the Cayo Costa subdivision map, the Board laid claim to all non-designated parcels on the map, as well as to any accretions to those parcels.2 The Plaintiff, Jorg Busse, alleged that he owns one of the parcels, with all accretions thereto, to which the Board laid claim.3

Busse filed suit in federal district court challenging the Resolution as violative of his private property rights under a variety of both federal and state laws.  The United States District Court for the Middle District of Florida, on the government’s motion, found that Busse had stated a valid takings claim but dismissed it in light of the fact that he had failed to exhaust all available state remedies. Lacking subject matter jurisdiction over Busse’s federal takings claim and declaring that he had stated no other valid federal claims under the equal protection or due process clauses, the court also declined to exact supplemental jurisdiction over the state claims.4

Appellate Court Affirms District Court’s Dismissal for Lack of Subject Matter Jurisdiction
The Court of Appeals for the Eleventh Circuit explained that a claimant can only recover on a takings theory if she can prove she did not receive just compensation for the taking of her property.5 Therefore, a takings claim is ripe for federal review only upon demonstration that the claimant unsuccessfully sought compensation through all available state procedures.6 Though Florida law has permitted inverse condemnation suits since at least 1990, Busse asserted that those procedures were not available when the Board adopted the Resolution in 1969. However, the appellate court cited circuit precedent in holding that a claimant must pursue such takings claims in state court prior to filing in federal court, even if the state remedy only became available after the date of the government action that allegedly constitutes the taking.7

The court also upheld the district court’s dismissal of Busse’s other federal allegations for failure to state a claim. The court asserted that Busse’s procedural due process claim is invalid because (1) he possessed a state remedy in inverse condemnation to counter any alleged procedural violations in the Board’s adoption of the Resolution and made no claim that that remedy was insufficient,8 and (2) even if the state takings remedy was insufficient, the Board’s act was “legislative in nature” in that it affected a large swath of persons rather than specifically targeting Busse or his immediate neighbors, wherefore a procedural due process claim is unavailable.9

The appellate court also dismissed Busse’s substantive due process claim as plead, for private property rights are not a “fundamental right” created by the federal Constitution but rather are defined by state law.10 The court did not interpret Busse’s pleading to challenge the validity of the Board’s adoption of the Resolution as arbitrary and capricious government action under the substantive due process clause, so the court did not address whether Plaintiff had a valid claim under such a theory.11

Further, the Eleventh Circuit upheld the dismissal of Busse’s equal protection claim, for Busse had only plead that the Board had treated privately-owned and publicly-owned property differently in its exercise of the taking power, and not that he had been treated differently than similarly-situated private landowners. Since publicly-owned lands are not subject to the power of eminent domain but privately-owned lands are, the court ruled that Busse, as a private property owner, could not be similarly situated to a public landowner, whereby his equal protection claim was invalid.12

Finally, the Court of Appeals held that the district court was within its discretion in refusing to exercise supplemental jurisdiction over all of Busse’s pending state claims where it has dismissed all claims over which it has original jurisdiction.13

Endnotes:
1.   See Busse v. Lee County, 2009 U.S. App. LEXIS 5055, *2 (11th Cir. Fla. Mar. 5, 2009).
2.   Id.
3.   Id. at *2-3.
4.   Id. at *5.
5.   Id. (citing Eide v. Sarasota County, 908 F.2d 716, 720 (11th Cir. 1990)).
6.   See Busse, 2009 U.S. App. LEXIS 5055 at *8.
7.   Id. at *8 (citing Reahard v. Lee County, 30 F.3d 1412, 1417 (11th Cir. 1994)).
8.   See Busse, 2009 U.S. App. LEXIS 5055 at *9.
9.   Id. (citing 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1294 (11th Cir. 2003)).
10. See Busse, 2009 U.S. App. LEXIS 5055 at *11.
11. Id. at *12-13, n.4.
12. Id. at *11.
13. Id. at *13-14.

Recommended citation: Timothy M. Mulvaney, Eleventh Circuit Affirms Dismissal where Claimant Failed to Exhaust State Remedies, 29:1 Water Log 13 (2009).

University of Mississippi