Horton v. Bd. Cty. Comm'r Flagler Cty., No. 98-2911

• Decision Date: 01 February 2000
• Docket Number: No. 98-2911
• Citation: 202 F.3d 1297
• Parties: (11th Cir. 2000) CHRIS HORTON and JAMES E. GARDNER, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF FLAGLER COUNTY, ETC., Defendants-Appellants
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1297

202 F.3d 1297 (11th Cir. 2000)

CHRIS HORTON and JAMES E. GARDNER, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF FLAGLER COUNTY, ETC.,

Defendants-Appellants.

No. 98-2911

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Feb. 1, 2000

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 97-CV-826

Before TJOFLAT and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

CARNES, Circuit Judge:

Chris Horton and James Gardner, Jr., the plaintiffs in this case, own land in Flagler County, Florida. They filed a 42 U.S.C. 1983 action in state court against the County Board of Commissioners, claiming that the Commissioners had deprived them of substantive due process, procedural due process, and equal protection by establishing a moratorium that prevented them from developing their land. Their complaint also claimed the Commissioners had violated the Florida Constitution and Florida laws. The Commissioners removed the case to federal district court, which dismissed the equal protection and substantive due process claims on the merits but remanded the federal procedural due process and state law claims to state court. The defendants have appealed.

This appeal presents us with the question of whether a federal court should remand a federal procedural due process claim to state court on McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc), grounds. We conclude that the answer is "no" and that the remand in this case was based upon a misunderstanding of McKinney, but we also conclude that we are without jurisdiction to correct the error.

I. BACKGROUND ¹

The plaintiffs bought land located in Palm Coast, Florida, zoned R-3, a zoning designation which permits multiple family apartments. They purchased the land in order to develop an apartment community which would include housing for low or moderate income households. They were planning to develop the land in accordance with the Flagler County Comprehensive Plan, a county program encouraging the development of affordable housing and its integration into the community. On December 2, 1996, the plaintiffs applied for an exception to develop ten housing units per acre of land rather than eight units per acre, the limitation imposed by the Comprehensive Plan. Public notice was given that the plaintiffs' application for an exception would be discussed at a Flagler County Commission hearing on January 14, 1997. Palm Coast property owners began what the complaint describes as "vocal and aggressive campaign" to stop the development.

On January 14, 1997, the plaintiffs entered into a contract to sell the property to TWC Eighty-Four, Ltd., which planned to construct an apartment building providing low or moderate income housing. However, on February 3, 1997, the Commissioners adopted a measure imposing a moratorium on the development of certain property within an R-3 zone. As a result, TWC Eighty-Four, Ltd. refused to close on the sale of the property.

The plaintiffs then filed an action in state court against the Commissioners in their individual capacities, claiming that they had deprived the plaintiffs of substantive due process, procedural due process, and equal protection by establishing the moratorium that prevented the development of property within an R-3 zone. They also claimed the Commissioners' actions had violated the Florida Constitution and Florida laws.

The Commissioners responded by removing the case to federal district court pursuant to 28 U.S.C. 1441(b). Once the action was removed, the Commissioners moved to dismiss it for failure to state a claim. The district court dismissed the substantive due process and equal protection claims on the merits. However, the district court did not dismiss the federal procedural due process claim; instead, the court remanded that claim and the state law claims back to the state court from whence they came. The entire initial explanation the district court gave for remanding the removed federal procedural due process claim to state court follows:

Defendant argues that Plaintiffs' procedural due process claim should also be dismissed because Plaintiffs have not pursued a remedy in state court. See, e.g., Flint Electric Membership Corp. v. Whitworth, 68 F.3d 1309, 1313-14 (11th Cir. 1995). The Court notes that Plaintiffs were pursuing a remedy in state court, at which time the Defendants removed the action to this Court. See Notice of Removal (Doc. No. 1, filed July 1, 1997). However, because Plaintiffs cannot show that the state has failed to provide an adequate remedy, the claim is not properly before this Court at this time. See North Florida Educational Development Corp. v. Woodham, 942 F. Supp. 542, 550 (N.D. Fla. 1996) (Plaintiff's "procedural due process claims must be dismissed because Florida courts have not failed to provide [Plaintiff] with such process."). Accordingly, Plaintiff's procedural due process claim will be remanded back to the state court. Further, to the extent that Plaintiffs have alleged claims under state law, these too are remanded to the state court.

Order of April 2, 1998 (footnote omitted).²

The Commissioners then filed a motion to clarify that order, which the district court granted. In the pertinent part of its clarification order, the court gave this additional explanation for remanding the federal due process claim:

Defendants' Motion for Clarification is GRANTED. As noted in the Court's Order on Defendants' Motion to Dismiss, Plaintiffs' federal procedural due process claim was not properly before this Court because Plaintiffs had not shown that the state failed to provide an adequate remedy; however, Defendants removed the above-styled action from state court to this Court while Plaintiffs were attempting to pursue a state remedy. See Order (Doc. No. 25, filed April 2, 1998). The Court concluded -- and reaffirms now -- that dismissing Plaintiffs' federal procedural due process claim from their Complaint would be inappropriate in light of the fact that it was the Defendants who obstructed the Plaintiffs' attempt to obtain a state remedy. Thus, the undersigned "dismissed" Plaintiffs' claim from this Court and remanded to the state court for disposition thereof.(NOTE1) The state court is equally capable of adjudicating a claim based on the United States Constitution.

(NOTE1) The Court concluded that Defendants' removal based on this claim could not stand.

Order of May 29, 1998.

II. DISCUSSION

The district court mistakenly thought the rule of our McKinney decision is based on ripeness or exhaustion principles and turns on whether the federal procedural due process claim in a particular case has been presented to the state courts by the plaintiff seeking to pursue that claim in federal court. But the McKinney rule does not turn on whether a plaintiff has presented the claim to the state courts, because the rule is not based on ripeness or exhaustion principles. See McKinney, 20 F.3d at 1564 n.20 ("McKinney's case fails, therefore, not for want of exhaustion; indeed, exhaustion is irrelevant to our decision and finds no mention in the opinion.") Instead, McKinney is based on a recognition that the process a state provides is not only that employed by the board, agency, or other governmental entity whose action is in question, but also includes the remedial process state courts would provide if asked. See id. at 1561-65. That is why we said in our opinion: "Since the Florida courts possess the power to remedy any deficiency in the process by which McKinney was terminated, McKinney cannot claim that he was deprived of procedural due process." Id. at 1565. McKinney was complaining of a biased decisionmaker at the board level, but under Florida law an adequate remedy for that could be obtained in the state courts. So, McKinney had an opportunity for procedural due process and that is all the Fourteenth Amendment requires. See id. at 1561-65.

The McKinney rule is not micro in its focus, but macro. It does not look to the actual involvement of state courts or whether they were asked to provide a remedy in the specific case now before the federal court. Instead, the McKinney rule looks to the existence of an opportunity - to whether the state courts, if asked, generally would provide an adequate remedy for the procedural deprivation the federal court plaintiff claims to have suffered. If state courts would, then there is no federal procedural due process violation regardless of whether the plaintiff has taken advantage of the state remedy or attempted to do so. If state courts generally would not provide an adequate remedy for that type of procedural deprivation, then the federal court determines whether the Fourteenth Amendment Due Process Clause requires such a remedy, and if it does, the federal court remedies the violation. Either way, the federal court decides the federal procedural due process claim; that claim is not sent back to state court. (But pendent state law claims may be. See infra n.3.)

The district court emphasized in its orders that the plaintiffs in this case were attempting to obtain a state court remedy for the procedural deprivation they claimed when the defendants removed the case to federal court. The district court characterized the defendants' removal as having "obstructed the Plaintiffs' attempt to obtain a state remedy." Order of May 29, 1998. The implication is that unless the federal procedural due process claim is sent back to state court, the plaintiffs cannot obtain whatever state remedy exists for the underlying procedural deprivation. But they can obtain the state remedy without an accompanying federal claim. Moreover, because of our supplemental jurisdiction under 28 U.S.C. 1367(a), federal courts can and do adjudicate state law claims and provide remedies for those claims.

There is no danger that plaintiffs who have been deprived of property without the procedural...