*1 mary judgment entered proceedings. for further
and remand
FRONT AND WARREN ROYAL COUN
TY PARK INDUSTRIAL CORPORA
TION, Virginia Corporation, Plaintiff-
Appellee, VIRGINIA, ROYAL, OF FRONT
TOWN Marlow,
Municipal Corporation; John
Individually Mayor former and as of Royal, Virginia;
Town Michael
Kitts, Individually and as a member
the Town Council of the Town of Front
Royal, Pomeroy, Virginia; L. In Edwin
dividually a former and as member Town of the Town Council
Royal, Jr., Virginia; Ruff, In Albert G.
dividually and as former member
the Town of the Town of Front Council
Royal, George Banks, Virginia; E. Indi
vidually and as a former member of
Town Council of Town of Front
Royal, Virginia; Brackenridge H. Bent
ley, Individually and as Town former
Manager of the Town of Front
Virginia, Defendants-Appellants.
No. 96-1614. Appeals,
United States Court of Circuit.
Fourth
Argued Oct. 1996.
Decided Jan. *2 Wharton, Glenn M. Hodge,
ARGUED: Al- *3 Weaver, P.L.C., VA, dhizer & Harrisonburg, Appellants. Clayton for Robert Fitzgerald, Thomas, P.C., Church, VA, Hazel & Falls Obenshain, Appellee. BRIEF: Mark ON D. Wharton, Weaver, P.L.C., & Aldhizer Harri- VA, sonburg, Appellants. Myron C. Smith, Fairfax, VA, Appellee. RUSSELL, ERVIN, Before and WILKINS, Judges. Circuit by published Reversed and remanded opinion. Judge opinion, ERVIN wrote joined. Judge RUSSELL Judge opinion concurring WILKINS wrote judgment. OPINION ERVIN, Judge: Circuit Defendants-Appellants Town of Front (Town) Royal, Virginia and various individu- currently previously als associated governance appeal the Town’s from an order reinstating prior summary judgment order That awarding damages. and recalculated pursuant order made jurisdiction of following court’s exercise proceedings after we ordered absten- according promulgated tion to the doctrine Co., v. Oil Sun Burford L.Ed. 1424 case The initially from Plaintiff-Appellee arose Front Royal County and Park Warren Industrial (IPC) Corporation’s § 42 U.S.C. 1983 action claiming taking an unconstitutional and viola- equal of due tions substantive and protection, predicated upon appellants’ failure sеwer lines lots to construct to IPC’s Virginia mandated Annexation Court. We reverse.
I.
very familiar with
We are
the factual back-
ground underlying this action
and will
yet again.
say,
recite it in full
Suffice it to
land, purchased
of
in 1973
IPC owns 86 acres
were
annexed
the Town
(letter
30,1993)
The
Court
ruling).
Virginia
of a
to the order
mandamus,
grant
affirmed the
also directed
That order
Court.
Annexation
Royal
Front
provide sewer service to
see Town
Town to
Corp.,
Park
later
Indus.
extended Warren
by December
lots
(Front
(Va.1994)
VI),
Af-
Town failed to do.
years, which the
S.E.2d
two
accept appeal
question
on the
wranglings, IPC filed the
it refused to
legal
ter various
Royal and Warren
damages,
court on Feb-
see Front
in federal district
instant case
v. Town
alleging
that the failure
ruary
(Va.
4,1994).
rights un-
Mar.
violated its
No. 931649
service
provide sewer
Amendments.
Fifth and Fourteenth
der the
the district court to
IPC thereafter moved
us,
judgment
amend the
prior
we vacat
was before
reinstate
time IPC
The last
*4
abstention,
attorney’s
damages and
ed,
previous
the
award of
basis of
on the
Burford
summary
opinion,
F.Supp.
granting
published
In a
see
orders
fees.
court’s
district
(Front
(W.D.Va.1996)
VII),
Royal
Royal
the
damages to IPC.1 Front
judgment and
and, fol-
granted IPC’s motion
County Indus. Park
v.
district court
and Warren
by
completion of the sewer lines
Royal,
lowing
trict court to retain followed, naturally and thus appeal This proceedings. par court outcome of state Royal opportunity for Front VIII. ticular, that IPC should seek we envisioned remedy appropriate Vir was under whatever II. scheme as well as ginia’s Annexation Court originally this action IPC filed might be other state remedies whatever jurisdiction § 1983. Federal court U.S.C. available, a common law cause of suggesting general § under the to hear 1983 cases exists process rights vindicate the due action to statute, jurisdiction question federal Constitution, afforded under appeal § from a 1331. This arises U.S.C. I, § who have been unlawful Art. 11 to those below, nominally possess we final order property. Id. at 764-65. ly deprived оf their § appellate jurisdiction under 28 U.S.C. 1291. subsequently requested both the Normally, jurisdictional that would end our County of to recon- Warren Town and the inquiry, but this is far from a normal case. Court, and, when that Annexation vene the previously ab- Because we ordered Burford failed, sought relief the state apparently stention, the district court to but directed Court of Warren system. The Circuit jurisdiction, federal we believe it is retain mandamus to grant a writ of County did necessary juris- to address whether federal extend sewer lines to Town to compel the given and court diction remains the events lots, it refused to award each of IPC’s transpired in the inter- dispositions that have Royal law. Front See damages under im. Corp. v. and Warren 92-121, slip op. Royal, No. Front Town of A. Va., (Warren Apr. County, Cir. Ct. V, Royal recognized we in Front 1993); Royal “[a]t In- As and Warren ques- Royal, No. the heart of the case before us is Corp. v. Town Front dus. Park (Warren Va., Royal complied ever with June tion whether Front Cir. Ct. Although previously de- companion labeled the various with a was consolidated 1. IPC’s case Gladys day by litigаtion differently, lengthy same case McLaughlin, Fred cisions in this filed McLaughlin v. Town Front adopt the district avoid confusion we further 12, 1987), (W.D.Va. Feb. filed No. CA-87-00020 denominating our most court’s nomenclature property annexed individual owners of Royal V and continue the recent decision Front similarly provided sewer ser- Town but numbering from there. McLaughlin the sole shareholder vice. Fred was of IPC. Royal rective in of the Annexation Courts. The V. IPC orders would no interpretation of the Annex- requires argue answer doubt had the even Annexation orders, reconvened, which is a determina- powerless ation Courts’ Court been it was uniquely Court tion that the Annexation was damages appellants’ award IPC refusal to V, qualified to make.” Front F.2d comply Appellee with its order. Br. of that, suggested although at 764. We ten A15. reconvened annexation court is limited run, years perhaps had 1978 Annexation enforcing terms conditions of its special Court under the could reconvened original decree, may not and it reconsider or Id. circumstances of this case. at 764 n. *. prior City rehear its ordеrs. Portsmouth granting The Annexation statute Court City Chesapeake, 205 Va. ten-year permits existence its own terms S.E.2d This view of the the court to be limited nature of the reconvened annexation during reconvened at time the ten- ultimately by reconfirmed the Vir- motion, year period on its own or on mo- VI, ginia in Front Court body of governing county, tion of the at 797. S.E.2d town, city petition or of or on of not Notwithstanding this dissolution of the An- fifty proper- registered less than voters or however, Court, nexation IPC’s failure to annexed; ty provided, owners the area *5 may pursue remedy a be there more funda- however, if the annexed contains area less may appear. mental than A at first sister than registered property voters or expressly provides: statute owners, majority registered of such then a property may petition voters or owners Notwithstanding provisions § of 15.1- court. reconvening of the 1047, in granting any the event a decision 15.1-1047(b). itself, By § Va.Code Ann. petition motion or annexation is sub- then, standing no to IPC could have cause jected court, any to collatеral attack the Annexation Court to reconvene. federal, state or court created or, § dissolved; 15.1-1038 shall not be if September We on decided Front V very day, pursu- a heretofore or hereafter dissolved at the 1991. The next notice time such Virginia pending, § ant to 8.01-385 was attack is made is Code sent to parties’ shall counsel from the clerk of the be revived. The shall thereaf- County ter until such Warren Circuit Court that the mat- continue existence time as resolved, ter of the would be stricken all been annexation from collateral issues have thereafter, the court’s docket on 1991. year October and until one and shall provided J.A. at 899. powers The notice an have the duties as same and. set out objection, addition, days be § which had to returned five 15.1-1047. In it shall have prior to October 7. IPC’s counsel did not power fully any implement to order or sign objection December until 1991. competent juris- decision of of respect diction with to such collateral at- that, days A few on before December tack. request IPC did both the Town аnd the County of Warren to reconvene the Annex- § Va.Code Ann. 15.1-1047.2 add- 896-98; Court, ation see J.A. at neither acted ed). apparently provision This has not been thereafter, request. Shortly on the on Janu- interpreted published in a by any court dis- 21, 1992, ary Judge Wetsel Circuit position. To the extent that the 1978Annex- Court of Warren determined that the Court the annexation ation conditioned on to Annexation Court ceased exist for lack of lots, providing lines to the Town sewer IPC’s activity in the matter and removed the case litigation may be seen as a collat- this entire from the docket. See 900. J.A. attack order. That eral on annexation may be Annexation Court thus revived. No unexplained delay think
We
this
of
revival,
spelled
for its
seeking
procedures
IPC’s
to
are
out
counsel
reconvene the
powers
possess
that it will
than
question
given
greater
Annexation
a real
as to
Court raises
sought
merely
where there has
zealously
whether IPC
to vindicate its
a
reconvened court
attack,
might
revival
state
with our
not been a collateral
remediеs
accordance
di-
point
a
on which the circuit court
only to those methods of reconven-
limited
already
De-
permitted
proceed.
had
IPC to
§ 15.1-1047. How extensive
ing laid out in
suggestions
statuto-
spite the state court’s
are is also unclear since
greater powers
these
might
ry and case law avenues on which IPC
interpreted by a court
they have never been
relief,
monetary
simply
IPC
failed
IPC,
recover
however,
point,
heretofore. The
them,
prima
nor
it “set forth the
address
did
remedies,
pursue
state
failed
directed
right
its
law
elements” of
common
provision.
test
even
facie
even
action as it was directed
do.
IPC
B.
argued
takings
under its federal
claim that
not win
inverse
claim
could
an
condemnation
Although
unclear to what extent
it remains
1026-
existing state law. See J.A. at
under
may
alleged injuries
remed-
IPC’s
have been
Court, it is
by recourse to the Annexation
ied
then,
hardly surprising,
is thus
that in a
It
necessary
pursuit
examine
still
IPC’s
30, 1993,
ruling
Judge Wetsel
letter
of June
other state remedies. Pursuant
damages
denied IPC’s claim for
under
15.1-1048,
sought
§
a
of man-
Code
writ
pаrticular,
In
could
law.
he ruled that IPC
Town
sewer
compel
damus to
to build the
bas-
damages
not recover
on three different
it a prayer
lines and
for dam-
combined
(1)
es:
because there
no constitutional
ages.
opinion
October
service,
right to sewer
its denial is the failure
Judge
of the Circuit Court of Warren
Wetsel
benefit,
no
to confer
and thus there is
as a
of law that
concluded
matter
taking
property
contemplated
proceed
not-
grounds
IPC could
on both
Act,
Virginia Declaratory Judgment
monetary
relief
be available
ed
predicate
right
for a
of action under Va.Code
action,
declaratory
through
judgment
8.01-187;
§
because IPC was not denied
action,
takings
a common
constitutional
it,
use of
land or
to sell
there
damage
enforce the due
*6
action to
taking,
could be no unconstitutional
and “[n]o
constitution,
rights of
the
and/or
Virgi-
condemnation action
lie in
inverse
will
Royal
action. Front
inverse condemnation
complained
where
to
nia
the acts
of are
County
Corp. v.
Indus. Park
and Warren
(3)
upon
property”;
confer a benefit
the
92-121,
Royal,
slip op. at
No.
Town Front
of
statutory authority
“no
because
exists under
(Warren
Va.,
23,
County,
Cir. Ct. Oct.
general
the
will
mandamus statute which
1992).
damages
the
permit
plaintiffs to recover
subsequently granted
Judge
IPC
Wetsel
merely for
violation of
ministerial act
the
the
14, 1993,
April
on
of mandamus
the writ
action,”
giving
rise to the mandamus
May
on
10 and ordered
stayed its issuance
damage
indepen-
such
claim must have an
IPC
law,
lacking
is apparently
dent basis
which
setting forth the
a Bill of Particulars
file
Royal
in this case. Front
and Warren
upon which it bases its claim
specific facts
County
Corp.
Indus. Park
v. Town
Front
of
Town,
the
against
which Bill
damages
(Warren
92-121,
Royal,
slip op.
No.
at 1-4
accompanied by
also be
shall
Particulars
of
Va.,
1993) (letter
County,
Ct. June
Cir.
setting
of
written
authorities
memorandum
ruling). Despite
adequately
IPC’s failure to
right
upon
specific
forth the
of action
claim,
argue
damage
the
of its
the state
basis
recovery
the
of
which
Petitioner seeks the
consider,
reject,
did
three
Town,
damages
memoran-
from the
which
pur-
four avenues thаt it had
IPC
suggested
pri-
dum of authorities shall set forth
eight
remaining
sue
months before. The one
ma
of that
action.
elements
of
facie
explicitly rejected
common
avenue
is the
IPC,
Particulars,
in the Bill
J.A.
of
damage
action to enforce the due
damages “under
common law”
I,
did seek
rights
Virginia
of
section 11
Article
of
§
1983. See
precisely
remedy
as well
U.S.C.
Constitution which is
However,
V,
Royal
at 1019-20.
in its memoran-
J.A.
to IPC
recommended
Front
dum,
However,
only
regard
to its
argument
discussed
Nevertheless,
we instructed
quite
us as
odd and
it strikes
benefit,
jurisdiction.
light
In
of our
either sur
to retain
IPC should
improper that
behavior in
through
lawyering,
Pomponio
bad
from
in
and IPC’s
decision
reptitiously
claim,
pursue
damage
state reme
it would
vigorously
pursuing its state law
its failure
us,
by
duty imposed
dies,
appear
that
deserve to have its
IPC would
dereliction
it
there was a
while
knew
all.
all the
case dismissed after
when
sympathetic to its
district
federal
addition,
to test the
IPC’s failure
In
claims.
Pomponio,
our
how
Since
decision
Annexation Court
powers
the revivable
ever,
Court has declared
just
§ 15.1-1047.2
Virginia Code
under
dismissal,
principles,
on abstention
based
previous
In a
case
us.
doesn’t sit well with
only
sought
the relief
appropriate
where
abstention,
refused to allow
we
of Pullman
discretionary.
equitable or otherwise
to federal court where
appellants to return
actions,
damages
a
court cannot dis
federal
timely perfect
appeal
they
failed to
had
stay
but can enter a
to await
miss the action
Court, since to do so
Virginia Supreme
proceedings.
the conclusion of state
lаwyering
encourage sloppy
only
“would
Co.,
Quackenbush v. Allstate Ins.
517 U.S.
procedure.” National
disrespect for state
706, 728-31,
1712, 1727-28, 135
Naturists,
Supervi
v. Board
Capital
Inc.
Quackenbush
dealt
L.Ed.2d
(4th Cir.1989);
sors,
F.2d
cf.
sought
equitable
neither
with an action
Texaco, Inc.,
1, 16 n.
Pennzoil Co.
discretionary
that was dis
nor other
relief
n.
95 L.Ed.2d
abstention doc
missed under
Burford
escape
cannot
(stating that “Texaco
hold,
Although
not so
it
trine.
the Court did
by failing to assert its
Younger abstention
open
possibility
might
left
“Burford
manner”).
timely
Here
in a
state remedies
postpone
support a federal court’s decision to
egregious, for IPC
the affront is more
pending
adjudication
damages
of a
action
duty to return to
perfunctorily performed its
disputed
of a
resolution
the state courts
court,
only abusing the
thereby not
Although
Id.
question
state law.”
procedure
fail
integrity of state law
Quacken
us,
note that
squarely before
position, but also
ing
folly
advocate
appears
implicitly
to have
overruled
bush
very purpose
ordering
absten
flouting our
holding
Pomponio,
on this issue
a
our
place.
it
be true
tion in the first
While
time,
ap
damages action. At the same
damage
claim
now that
IPC’s state
pears that our earlier decision in this case
exercise,”
idle
such
amounts to a “futile and
V,
to the
viz. the instruction
ease when we abstained. We
was not the
jurisdiction,
court to retain federal
district
obliged
good
to make
find that IPC
supportable under current absten
remains
just compensation
seek
under
faith effort to
jurisprudence.
tion
Failing
pursue
statutory
state law.
Court, Quacken-
failing
not before the
open to it and
to follow state
Because
avenue
*8
appropriate
prima
provides
guidance
facie ele
no
on
present
to
bush
court’s order
litigants who have
rights
good
of action do not a
federal court action when
ments of its
pursuant
court
to
been sent
state
faith effort make.
Burford
following
to the
forum
return
federal
C.
ques-
state law
state court resolution
abstention,
Pullman-type
In
decision in Front
tions.
cases of
Subsequent
our
Co.,
V,
normally
Railroad
v. Pullman
312
in cases of
see
Comm’n
we held that
Burford
(1941),
496,
643,
971
is for thе
61 S.Ct.
85 L.Ed.
appropriate
course
U.S.
abstention
necessarily permitted to re-
altogether
litigants are not
to dismiss the action
district court
court,
order,
stay
despite
federal
retaining jurisdiction pending the
turn to
instead of
they
litigated
their
Pomponio v.
if in state court
fact
proceedings. See
state court
not instead make an
Supervisors, 21 F.3d
claims and did
Fauquier County Bd.
federal
(en
(4th Cir.)
banc),
denied,
right
England reservation of their
to have
cert.
issues,
disposition
court
of the federal
tions,
merely refuses to enhance the val-
In
it is
obvious that
but
compensable taking
a
the Town’s failure to install the sewer lines
property,
ue of real
seriously question
deprive
must
did not
IPC’s land of all economic
We
has occurred.
property
to that.
claimed
interest
value or even close
The district
the nature of IPC’s
property
been taken. This
court determined that
IPC’s basis in the
allegedly
that has
$407,000 (comprised
nothing
property
an inchoate interest in
was
is
but
interest
$107,000 purchase price plus
“approxi-
a benefit to enhance
the conferral of
market
$300,000”
mately
compensable taking
spent
preparing
a
in
the land
value. To find it to be
park).
Box.
for use as an
open an incredible Pandora’s
industrial
would
VII,
F.Supp.
an inchoate interest a stick
at 1134-35. The fair
Even were such
clearly
property rights,
it is
market value of IPC’s land without sewer
the bundle
$405,000.
property rights of
service
See id. at 1152. The
one of the classical
not
use,
disposition.
simple.
outright
math
possession,
See Kaiser
The
diminutiоn
States,
percent.
444 U.S.
value is less than one half of one
Aetna v. United
383, 391, 62 L.Ed.2d
Even if
from the
the diminution
calculated
S.Ct.
fair
(speaking in terms of the “sticks in
bun-
market value of the land with the sewer
commonly
rights
provided,
that are
characterized
service
which the district court de-
dle of
Loretto,
id.,
$810,000,
at
property”);
as
termined to be
see
the reduc-
(describing property rights
only
percent.
regulato-
at
tion is still
Not all
ry
rights
possess,
dispose
deprivations
regulatory takings,
as
use and
amount to
“the
(internal
regulatory deprivation
cita-
thing]”
quotation marks and
and a
that causes land
[a
omitted)).
necessarily
to have
tion
“less value” does not
make it “valueless.”
Lucas,
not like
where
The instant case is
determination,
totally prevented
zoning regulations
Although
new
not central to our
building any
aspects
upon
habitable structure
two
owner from
additional
touched
in Lucas
lots, thereby denying
support
his
In discussing
on the beachfront
our decision.
expectations.
“property
against
investment-backed
The dis-
interest”
the loss of
measured,
argument
trict cоurt’s
alternative uses
value is to be
the Court noted the
property,
as
regulatory
such
a residential subdi-
unsettled distinction between a
vision,
economically
deprivation
economically
were “neither
realistic
of all
beneficial use
VII,
available,”
realistically
portion
nor
of the burdened
of a tract and a
F.Supp.
simply
proba-
deprivation
that results in the mere diminu-
Lucas,
tive.5
and the district court fail
tion in
What IPC
value of the tract as a whole.
government
recognize
is that the
did not
n.
S.Ct. at 2894 n. 7.
anything
deny
decide,
do
suggested,
IPC the
to use The Court
but did not
property
park.
for an industrial
The
inhering
the difficulties
this distinction
already
pump
Town
had
installed
on lot
be resolved
“how the owner’s reason-
interceptor
expectations
lines. All that
shaped by
and certain
able
have been
property i.e.,
remained to do was to connect collector
law of
State’s
whether and to
—
degree
lines to thirteen of the sixteen lots. Abso- what
State’s
has accorded
lutely
regulation prevented
legal
protection
government
recognition
partic-
no
to the
installing
respect
those lines itself.
In
ular interest
IPC from
in land with
to which
fact,
developers
many
takings
alleges
do install their own the
claimant
diminution
(or
of)
Admittedly, the Town was un-
par-
sewer lines.
elimination
value.” Id.
case,
expecta-
der an Annexation Court order to install
ticular
IPC had no reasonable
lines,
nothing prevented
Virginia’s property
recog-
those
IPC from tion that
law would
nize,
doing
suing
protect,
property
re-
so and then
Town for
let alone
interest
covery
having
provided by govern-
costs.
sewer service
of those
Moreover,
fact,
(Blackmun, J.,
ignores
the district court
as
inherent granted summary judgment on a sub provide have tion that the owner would essentially process stantive claim sua due sanitary disposal. its own water and waste However, sponte. IPC’s first amended com supports This same factual basis also plaint it has its does state that been denied not conclusion that IPC did suffer defeat property process of law in viola without due expectations. of its investment-backed When tion of the Fourteenth Amendment. The purchased the land 1973 and interpreted this a substan district court that investment could have been backed claim, we cannot see tive due expectation that land would prejudiced has been how the Town provided publiс sewer service. addressing it as such since the lower court gainsaid It cannot be that the Town’s and complaint fairly puts the Town on notice. its officials’ behavior this matter has been noted, however, they substan less than Not fail As we have honorable. did substantially process is a narrower provide the mandated sewer service until tive due process, it nearly years concept procedural than due ten after the Annexation Court- deadline, gov certain they affirmatively serves as “an absolute check on imposed de- notwithstanding the fair park ernmental actions veloped their own industrial across the implement property provided procedures” ness of the used road from IPC’s Pepersack, 47 F.3d lines since the Town all Love v. lacked discretion those actions. Cir.) VII, (internal totally deny quotation them. See Front marks omitted) added), F.Supp. certainly plain at 1149-51. It cert. and citation denied, Virginia Supreme Court determined that required the 1978 Annexation Court’s decree have determined that We L.Ed.2d *13 perform prospеctive the Town “to non- only is warranted where check this absolute VI, discretionary act.” Front 449 in the process could cure the deficiencies no S.E.2d at 798. Sylvia governmental action. See Dev. (4th Md., County, 48 F.3d
v. Calvert may it However be that the Town lacked Cir.1995). words, governmental In other ac discretion, that IPC had a claim of entitle- process only tion offends substantive due ment, deprived and that the Town IPC of life, resulting deprivation where the liber entitlement, plain that that equally unjust ty, property or is so that no amount of Virginia Supreme depri- Court remedied that Love, procedure rectify fair can it. See by affirming vation the trial court’s issuance As we stated in Rucker v. F.3d of a writ of mandamus. See id. Pursuant to (4th Md., 946 F.2d writ, the sewer lines were constructed. Harford denied, Cir.1991), cert. if Thus even IPC has satisfied the first two (1992): 1175, 117 L.Ed.2d 420 claim, process elements of its substantive due satisfy it cannot the third. Because the state protections of “substantive [T]he residual courts ordered the (or Town construct process” any) due in this context run lines, capable sewer the state courts were оnly arbitrary action so or irra- to state rectifying, rectify, and did the Town’s tional, dere- unjustified by any so circumstance liction. interest, governmental literally as to be incapable by any pre-depriva- of avoidance Sylvia Development, As in our anal procedural protections adequate tion or of ysis in no manner condones the ac Town’s by any post-deprivation rectification reme- in circumventing legal obligations tions dies. nearly years. Dev., Sylvia ten Cf. Sylvia Development, (“Our we broke down a analysis F.3d at 829 should process claim into substantive due three ele- interpreted condoning public the actions of prove ments that a claimant must under this legally officials who circumvent established conception property prong narrow when the in decisionmaking.”). gov criteria their But implicated: of the Fourteenth Amendment ernmental actions that are violative of state (1) possession the claimant must establish properly challenged are in state courts (2) interest, property action must exist, part, рrotect in citizens from interest, deprive property the claimant of the id.; Love, of state law. abuses F.3d fall the state’s action must “so far at 123. illegally Whether the Town refused beyond legitimate govern- the outer limits of comply with the Annexation Court’s de process mental action that no could cure the cree is not determinative of whether federal Dev., deficiency.” Sylvia F.3d process substantive due has been violated. original). City In Gardner v. As we stated Love: Council, Mayor City Baltimore 969 F.2d We would trivialize the Due Process Cir.1992), permitted the Su- every Clause to invoke it time the citizen preme Court’s standard of “claim of entitle- defeats the state state court. The Roth, Regents ment” under Board only Clause is violated where the state 2701, 2709, U.S. 33 L.Ed.2d nothing rectify injury courts can do (1972), satisfy property interest already arbitrarily the state has in- in a element substantive due chal- flicted. lenge. Id. Had IPC not into rushed federal court case, place In the instant the district court gone de- the first to state instead court, holding our termined that under in Gardner as it after did we ordеred it to possessed property following interest because it our abstention in Front decision V, fairly a claim had of entitlement to the sewer no doubt its sewer lines have would plaintiffs,” much sooner. Federal evinced its cor- constructed been understanding authority automatic cure for whatever rect of its under court is not the 56(c) writing: Rule ails one. While there is some evidence that this C. so, provide have been record does not Equal The Fourteenth Amendment’s finding, the basis for a under Rule provides that State “[n]o
Protection Clause there was invidious discrimination de- juris deny any person ... within its shall against plaintiffs fendants because there protection laws.” equal diction disputés regarding are issues of material Const, XIV, § 1. As we have amend. fact which relate to defendants’ motivation stated, recently “limits all state Clause in providing pro- sewers and the effect of action, denying a prohibiting state from viding parcels the sewer lines to some *14 through the enact person equal protection However, not to others. it is not neces- administratiоn, ment, or enforcement of its sary to find uncontroverted evidence of Sylvia Corp. v. regulations.” Dev. laws and conspiracy by defendants to reduce the (4th Md., 810, County, 48 F.3d Calvert plaintiffs’ parcels impermissi- value of or to Cir.1995) (emphasis original). service, bly deny plaintiffs to sewer for protection claim not a chal- equal IPC’s is defendants themselves have not been able any regulation Town or or lenge to ordinance identify any permissible to state interest to Indeed, claim any state law. IPC’s even which defendants’ decision could bear a validity specifically rests on the of the 1978 relationship nor rational could there feasi- Instead, Annexation Court’s decree. interest, bly given such stric- claiming a violation of federal constitutional placed upon by tures defendants an- through properly refusal to the Town’s nexation orders. comply Annex- with that state administer “finding” Id. at statement 1487. This is not ation Court order. there was no invidious discrimination. Instead, Equal legal although forbids it is a conclusion that
The Protection Clause expressly concerning as to the existence of invidi- laws that discriminate evidence both conflicting, appropriate that bear no rela ous discrimination was foreclos- classifications 56(c), ing judgment tionship legislative purpose judgment under Rule between because, adopted pur proper nevertheless was for IPC the classification to achieve that law, facially legitimate a matter of there was no pose and laws that are neutral denying legal interest in sewer service. This that are administered or enforced diserimina court, however, by conclusion the district torily regard to such classifications. unsound. summary judg ruling on the motion Hence, granting respect equal protection erred ment with IPC’s claim, appears summary judgment to IPC. It to be the district court noted that the Town that, they undisputed accepts alleged in their “that whether one officials affidavits provide claim that the decision not to sewer based their decision not to extend sewer property was made to advance garden-variety economic service to its lines on the sort historically nearby property owned courts conclude the interests factors which the Town or the Town officials’ contention judicial deference.” Front & merit strictly was an economic Indus. Park v. Town that the decision Warren Va., 1477, one, proper- treatment of IPC’s Royal, F.Supp. the different Front of (W.D.Va.1989). ruled, See, e.g., Sylvia Dev. ty intentional. The district court was Md., however, Corp. v. 48 F.3d legally that this reason was insuffi Calvert (4th Cir.1995) (explaining that in order of sewer cient inasmuch as the extension has been adminis- prove annexation that a statute “[t]o service had been ordered discriminatorily, more tered or enforced Discussing court. id. IPC’s additional fact that a benefit conspiracy among the must be shown than the claim “that there was a on person to one while conferred provide sewerage to certain was denied defendants violation is established personal deny “[a] it to another” and that parcels benefit and to pro- equal violated the prove that the state due plaintiff can only if thе discriminate”). And, guarantees of the Fourteenth Amend- because the tection intended separately highlight the ment. I write did not burden funda action governmental opinion has suspect majority in the re- employ a classifica dictum right or mental unnecessary breadth of its tion, question determining sulted from pertinent and its consideration of a number action violated discussion governmental whether I irrelevant to the the Town of matters that believe are is whether Equal Protection Clause reasonably have believed that decision. could officials rationally legiti to a related the action was majority opinion explains II of the Section See, e.g., Plyler interest. governmental mate litiga- prior appeal in a we held (4th Cir.1996), Moore, 100 F.3d v. tion that abstention Burford — denied, -, 117 S.Ct. cert. Co., Oil Sun (1997); Med. Chambers 138 L.Ed.2d (1943), appropriate and di- L.Ed. S.C., Bryant, 52 F.3d Inc. v. Techs. jurisdiction rected the district court to retain Sons, (4th Cir.1995); & Smith Setzer proceed- “pending the outcome of the state Procurement Review Inc. v. South Carolina they may fully dispose ings because of all (4th Cir.1994). Panel, F.3d & of the federal claims.” War- motivation for the Regardless of the actual Corp. v. Town ren adjacent service to provide decision to sewer Va., 945 F.2d *15 property, property not to IPC’s the Town Cir.1991). majority The also notes that IPC reasonably could have believed that officials subsequently ruling obtained a from the Su- rationally legiti related to a the decision was preme the state trial Court of Therefore, the governmental mate interest. properly granted court relief be- mandamus summary granting district court erred possessed cause IPC “a clear to the” judgment to IPC. construction of sewer lines under the 1978 order, “a annexation court the Town had V. legal duty perform the act” that reasons, foregoing we conclude For the sought compel, and “there no other [was] process, takings, due that IPC’s substantive specific adequate remedy.” available to the equal protection claims Royal Town & of cannot Fifth Amendments and Fourteenth Corp., Warren 248 Va. grant sustained. We therefore reverse (1994) (internal 449 S.E.2d summary to IPC оn of judgment of each omitted). quotation majority marks The the district court to claims and direct these eventually prior that in reasons view our disposition necessarily dismiss them. Our direction that the district court was to retain compensatory reverses award to IPC of jurisdiction to consider issues if the federal attorney’s damages fees. We remand them, the state court resolve did not this court for whatever matter to the district Virgi- of the determination Court proceedings may remain in this now too- remedy nia that no state other than manda- lengthy litigation. IPC, ruling mus was available to and the prudential the state court that considerations AND REMANDED.
REVERSED against a on the counseled decision federal issues, correctly that it held WILKINS, concurring in Judge, Circuit appropriate proceed to resolve the judgment: questions. The of the federal remainder dis- I agreement am in full with the result unnecessary cussion in Section II is to the majority reached of the de- —reversal and, hence, decision is dicta. holding cision of the district court that the Next, Royal, Virginia majority correctly *16 Plaintiff-Appellee,
v. Harrington WILSON,
Norman a/k/a Norman, Stormin Defendant-
Appellant. America,
UNITED STATES
Plaintiff-Appellee,
v. WILSON, Pudgie, David
William a/k/a Defendant-Appellant. America,
UNITED STATES
Plaintiff-Appellee, Correy TALLEY, Rat
William a/k/a
Rat, Defendant-Appellant. and 95-5839.
Nos. Appeals,
United States Court of
Fourth Circuit.
Argued 1996. June
Decided Jan. actions of the Town of Front as the notes IV, and several of its officials effected Section our conclusion that none of IPC’s individual taking property rights constitutional obviates an unconstitutional be- were violated question and Warren the need to address the of whether longing to the Front (IPC) qual- Corporation the individual are entitled to County Industrial Park defendants Haines, DiMeglio v. immunity. See ified (4th Cir.1995) (noting that F.3d ground may dispose of a case on the violation occurred with- that no constitutional immunity). The re- addressing qualified out discussing quali- paragraph mainder immunity is dicta. fied majority intimates that Finally, “inchoate interest the conferral of bene- give fit enhance market value” taking. Slip op. unconstitutional rise to an Obviously, reasoning is unneces- majority since the con- sary to the decision taking unconstitutional result- cludes that no because the “failure to install the sewer ed deprive of all eco- lines did not IPC’s land Slip op. value or even close to that.” nomic omitted). Again, at 286 the bal- the Fifth discussion ance of Amendment must be understood to be dicta. America, UNITED STATES