Perfect Puppy, Inc. v. City of E. Providence

• Citation: 807 F.3d 415
• Decision Date: 08 December 2015
• Docket Number: No. 15–1553.,15–1553.
• Parties: PERFECT PUPPY, INC., Plaintiff, Appellant, v. CITY OF EAST PROVIDENCE, RHODE ISLAND, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

807 F.3d 415

PERFECT PUPPY, INC., Plaintiff, Appellant,

v.CITY OF EAST PROVIDENCE, RHODE ISLAND, Defendant, Appellee.

No. 15–1553.

United States Court of Appeals, First Circuit.

Dec. 8, 2015.

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.

Before HOWARD, Chief Judge, SELYA and THOMPSON, Circuit Judges.

Prologue

THOMPSON, Circuit Judge.

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.

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.

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.

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 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, 112 S.Ct. 1735, 118 L.Ed.2d 352 (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 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 (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, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007) (noting that Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), held that courts must read section 1447(d) in conjunction with section 1447(c)⁴ ). So, not to put too fine a 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, 126 S.Ct. 2145, 165 L.Ed.2d 92 (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, 127 S.Ct. 2411. 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 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, 126 S.Ct. 2145 (commenting...