Nоy HADAR, on behalf of himself and all other similarly situated, Plaintiff-Appellant, v. BROWARD COUNTY, Southwest Airlines, Spirit Airlines, Inc., American Airlines Group, Inc., Delta Airlines, et al., Defendants-Appellees.
No. 16-14569
United States Court of Appeals, Eleventh Circuit.
(May 31, 2017)
Non-Argument Calendar
III. Conclusion
Based on the foregoing, the district court‘s entry of a permanent injunction is affirmed. All other aspects of this appeal are dismissed for want of jurisdiction. The case is remanded to the district court for further proceedings.
AFFIRMED IN PART, DISMISSED IN PART, AND REMANDED.
Rene Harrod, Moneyede M. Martin, Jr., Andrew J. Meyers, Tony J. Rodriguez, Broward County Attorney‘s Office, Fort Lauderdale, FL, Carlos Rodriguez-Cabarrocas, Office of the County Attorney, Broward County, Broward County Aviation Department, Dania Beach, FL, for Defendant-Appellee Broward County
Jeffrey J. Ellis, Clyde & Co. US LLP, New York, NY, Patricia Leid, Clyde & Co US, LLP, Miami, FL, for Defendants-Appellees Southwest Airlines, Spirit Airlines, Inc., American Airlines Group, Inc., Delta Airlines
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
The appellant, Noy Hadar, is a property owner who lives beneath the airspace of the flightpath for the south runway at the Fort Lauderdale-Hollywood International Airport. The south runway became operational in 2014 with the approval of Broward County (the “County“). Since that time, Hadar alleges, the frequent low-level overhead flights have caused extreme noise pollution and have interfered with his rights as a homeowner.
Hadar filed this putative class-action lawsuit against the County and multiple airlines (the “Airlines“) that use the airport and the new runway. The central issue in this appeal concerns Hadar‘s federal claim against the County, under
Following a hearing, the district court granted the County‘s motion to dismiss Count I—the taking claim—for lack of subject-matter jurisdiction under
I.
“The question of ripeness goes to whether the district court had subject matter jurisdiction.” Reahard v. Lee Cty., 30 F.3d 1412, 1415 (11th Cir. 1994) (internal quotation marks omitted). We review jurisdictional issues de novo. Id.
Williamson County therefore “requires potential federal court plaintiffs to pursue any available stаte court remedies that might lead to just compensation before bringing suit in federal court for claims” alleging a taking without just compensation.1 Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1303 (11th Cir. 1992). In other words, “a takings claim is not ripe until all avenues of compensation at the state level have been exhausted.” Id.; see also Agripost, LLC v. Miami-Dade Cty., Fla. (Agripost II), 525 F.3d 1049, 1052 (11th Cir. 2008) (”Williamson County boils down to the rule that state courts always have a first shot at adjudicating a takings dispute because a federal cоnstitutional claim is not ripe until the state has denied the would-be plaintiff‘s compensation for a putative taking, including by unfavorable judgment in a state court proceeding.“).
Despite the general state-exhaustion requirement, a property owner‘s federal taking claim brought directly in federal court will be ripe if (1) “the state law provides him no process for obtaining just compensation (such an action for inverse condemnation),” or (2) “the state law appears to provide such process, but due to state interpretation, the process is inadequate.” Agripost, Inc. v. Miami-Dade Cty., ex rel. Manager (Agripost I), 195 F.3d 1225, 1231 (11th Cir. 1999); see also Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 92 (1st Cir. 2003) (“Courts have made exceptions to Williamson County‘s state action requirement when state law did not recognize the taking that occurred, or did not permit the relief required to make the plaintiff whole.“). If statе law affords an adequate process for obtaining just compensation, however, the taking claim is not ripe, and the federal court must dismiss the claim for lack of subject-matter jurisdiction. Agripost I, 195 F.3d at 1231.
To establish such a claim for inverse condemnation, plaintiffs must “demonstrate either (1) a continuing physical invasion of the property, or (2) a substantiаl ouster and deprivation of all beneficial use of the property.” Bakus v. Broward Cty., 634 So. 2d 641, 642 (Fla. Dist. Ct. App. 1993) (citations omitted). Evidence of direct overflights of aircraft can establish a continuing physical invasion of the property. Sarasota-Manatee Airport Auth. v. Icard, 567 So. 2d 937, 938-39 (Fla. Dist. Ct. App. 1990). Damages are available provided the plaintiff can prove “a substantial loss in market value.” Id. at 938.
The central thrust of Hadar‘s appeal is that this state inverse condemnation рrocedure, though available, is inadequate. But his position is not consistent with our caselaw in this area. We have twice held that “a Florida property owner must pursue a reverse condemnation remedy in state court before his federal takings claim will be ripe.” Reahard, 30 F.3d at 1417. In Executive 100, for instance, we held that the plaintiff‘s claim alleging a regulatory taking was not ripe because “Florida courts havе recognized that . . . property owners have the right to bring reverse condemnation proceedings seeking compensation for regulatory takings.” Exec. 100, Inc. v. Martin Cty., 922 F.2d 1536, 1542 (11th Cir. 1991). Likewise, in Reahard, we held that a taking claim based on zoning classifications was not ripe because Florida courts “recognized an inverse condemnation remedy based on zoning classifications.” Reahard, 30 F.3d at 1417-18. Here, as in both Executive 100 and Reahard, Florida courts recognize an inverse condеmnation remedy for the type of taking alleged. See, e.g., Foster, 579 So. 2d at 776.
Despite the availability of a state-court remedy for obtaining compensation for a taking based on airport operations, and despite our decisions requiring potential federal plaintiffs raising similar claims to first utilize Florida‘s inverse condemnation procedure, Hadar nonetheless maintains that the state remеdy is inadequate because, in his view, resorting to that procedure would have been futile. Specifically, Hadar claims that the state remedy is inadequate because he alleged “no property value loss,” nor did he seek to have the County condemn the property as deprived of all beneficial use, so his claim would have been dismissed under state law, specifically thе Florida appellate court decision in Bakus.
So the question is whether the inverse condemnation procedure is inadequate because Hadar did not allege either a deprivation of all beneficial use or a diminished market value as a result of the airport operations. As for the first, Hadar did not need to allege a deprivation of all beneficial use or seek a condemnation order in order to establish a compensable taking under the inverse condemnation procedure. See Bakus, 634 So. 2d at 642 (inverse condemnation plaintiffs must “demonstrate either (1) a continuing physical invasion of the property, or (2) a substantial ouster and deprivation of all beneficial use of the
As for the lack of an allegation of property value loss, we are not persuaded that this renders the state procedure inadequate. As we have established, compensation—the remedy Hadar requested for the allеged taking—is available under the inverse condemnation procedure for a taking based on airport operations. Hadar‘s contention that his claim would fail under Bakus because he alleged no property value loss appears to be no different than one we found to “lack[] merit” in Executive 100:
Plaintiffs claim that Williamson County should not apply to their just compensation claim because they do not have а “viable” inverse condemnation claim. This appears to be nothing more than a concession that their claim of a taking is meritless because the Board has not deprived the plaintiffs of all use of their property.2
922 F.2d at 1542 n.13. Hadar offers no case law from this circuit, other circuits, or the Supreme Court to suggest that we should not follow that same reasoning here.3 Whether his claim is viable is а question separate from whether his claim is premature.4 See id.
Hadar‘s remaining arguments against the district court‘s dismissal of his taking claim are unpersuasive. First, the fact that the County has not instituted eminent domain proceedings is not significant because the inverse condemnation remedy is available in situations where a government agency “has taken private property without a formal exerсise of the power of eminent domain.” Schick, 504 So. 2d at 1319 (emphasis added).
Second, because the adequacy of the state procedure is determined by reference to state substantive law, the County‘s actions in this and similar proceedings are not relevant to the question of whether the inverse condemnation procedure is an adequate remedy. The fact that the County vigorously defends inverse condemnation actions says little about whether the process is adequate.
Third, and relatedly, the district court did not err by refusing to grant Hadar jurisdictional discovery before dismissing his taking claim under
Attacks on jurisdiction can be either facial or factual. McElmurray v. Consol. Gov. of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). Facial attacks on jurisdictiоn are based on the face of the complaint, accepting its allegations as true, id., whereas factual attacks challenge “the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony,” Stalley ex rel. United States v. Orlando Reg‘l Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008). If the jurisdictional attack is factual, as opposed to facial, the рlaintiff ordinarily is entitled to jurisdictional discovery on disputed material facts. McElmurray, 501 F.3d at 1251; Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729-30 (11th Cir. 1982).
Here, the district court decided the jurisdictional issue of ripeness as a facial matter. The court accepted as true the factual allegations in Hadar‘s amended complaint and determined, as a matter of Florida state law, that the state inverse condemnation proceeding was adequate. For the reasons discussed above, we agree. We are not persuaded that the discovery Hadar sought to obtain could have helped him show that the state remedy was inadequate. Accordingly, Hadar was not entitled to jurisdictional discovery. See McElmurray, 501 F.3d at 1251.
Finally, Hadar suggests that by dismissing his federal taking claim for lack of subject-matter jurisdiction we will be depriving him of his chosen forum, and possibly а federal forum altogether, and forcing him “to stand in line with 150 plus other homeowners in the sluggish state court procedure.” Regardless of Hadar‘s views of the state system, however, Supreme Court precedent requires Hadar to use it. Indeed, the Court has recognized that there is no absolute “right to vindicate . . . federal claims in a federal forum. . . . That is so even when the plaintiff would have preferred not to litigate in state court, but was required to do so by statute or prudential rules[,]” like the Williamson County requirements. San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323, 342, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). And “as a practical matter, a significant number of plaintiffs will necessarily litigate their federal takings claims in state courts.” Id. at 346-47, 125 S.Ct. 2491 (noting that state courts are competent to adjudicate federal constitutional challenges).5
In sum, we conclude that Hadar has failed “to pursue any available statе court remedies that might lead to just compensation before bringing suit in federal court.” See Fields, 953 F.2d at 1303. Ac-
II.
Hadar also argues that the district court abused its discretion by failing to retain jurisdiction over his state-law unjust-enrichment and trespass claims against the Airlines. In Hadar‘s view, the court failed to consider the equities of the situation in accordance with the Supreme Court‘s decision in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), specifically the “importance of the federal forum for Hadar and the putative class.”
Under
Hadar‘s reliance on Cohill is misplaced. Cohill lists various factors for courts to consider when evaluating whether to retain or decline jurisdiction over supplemental claims. 484 U.S. at 350, 108 S.Ct. 614. These factors include “the values of judicial economy, convenience, fairness, and comity.” Id. Yet the very next sentence states that “[w]hen the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.” Id. (emphasis added).
Here, the district court did not abuse its discretion. Because Hadar‘s sole federal-law claim had dropped out of the lawsuit in its early stages and only state-law claims remained, the court properly declined to exercise jurisdiction by dismissing the remaining claims without prejudice.6 See id. The court reasonably concluded that the interests of judicial economy and convenience werе best served by declining jurisdiction over the state-law claims and allowing the parties to litigate all their claims in one forum. The “importance of the federal forum” for Hadar was not so compelling that it required the district court to retain jurisdiction over his state-law claims.
For these reasons, we affirm the dismissal of Hadar‘s complaint.
AFFIRMED.