Silverman v. Barry, 81-1959

• Citation: 234 U.S. App. D.C. 22,727 F.2d 1121
• Decision Date: 19 March 1984
• Docket Number: No. 81-1959,81-1959
• Parties: Robert I. SILVERMAN, et al., Appellants v. Marion BARRY, Mayor of the District of Columbia, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1121

727 F.2d 1121

234 U.S.App.D.C. 22

Robert I. SILVERMAN, et al., Appellants v. Marion BARRY, Mayor of the District of Columbia, et al.

No. 81-1959.

United States Court of Appeals, District of Columbia Circuit.

Argued May 20, 1982.

Decided Feb. 7, 1984.

As Amended Feb. 9 and March 19, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-0394).

Burton A. Schwalb, Washington, D.C., with whom Jerome Nelson, Laura A. Kumin and Stuart H. Newberger, Washington, D.C., were on the brief, for appellant.

Karen J. Krueger, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel and James R. Murphy, Acting Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees, Marion Barry, Mayor of the District of Columbia, et al.

Lynne Bernabei, Washington, D.C., for appellee-intervenor, Group to Save Van Ness South for Everybody, Inc.

Before WRIGHT, MIKVA and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

Robert Silverman, Howard Pollinger, and WAVN, Inc. appeal the district court's dismissal of their complaint for want of jurisdiction. We reverse, finding jurisdiction proper under 28 U.S.C. Secs. 1331 and 1343 (1976), and remand to the district court for proceedings not inconsistent with this opinion.

I.

Appellants are the sole general partners in Van Ness Properties III, a limited partnership holding title to a residential apartment complex ("Van Ness") in the District of Columbia. On April 26, 1979, the partnership submitted applications to convert Van Ness to a condominium and a cooperative pursuant to the Condominium Act of 1976. D.C.Code Ann. Sec. 45-1801 et seq. (1981). That statute permitted conversion of apartments which satisfied specific statutory criteria. The local agency responsible for processing such applications, the Department of Housing and Community Development, has never acted on them.

Thirty-three days after appellants filed the conversion applications, the District Council enacted the first in a series of "emergency" measures prohibiting conversion of Van Ness and other rental property. Each emergency act--promulgated, according to the appellees, under authority of the District's Home Rule Act--prevented condominium conversion for ninety days. ¹ These successive measures effected, with defined exception, ban on conversion extending at least nine months.

The Washington Home Ownership Council, Inc. ("WHOC"), a nonprofit organization composed primarily of real estate brokers and developers, challenged the legality of enacting successive "emergency" legislation in the District of Columbia superior court. The challenge was sustained, that court ruling that the District Council had abused its authority under the Home Rule Act by adopting successive and identical emergency bills. Washington Home Ownership Council, Inc. v. District of Columbia, C.A. No. 10624-79 (D.C.Super.Ct. Oct. 19, 1979). The District, however, obtained a stay of this order pending appeal and refused to process appellants' conversion applications.

The trial court's ruling was affirmed by the District of Columbia Court of Appeals in May of 1980. District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349 (D.C.1980). The District continued to refuse to issue appellants' conversion permits reylying, on a new 180-day statutory moratorium on "high rent" conversions. That provision was followd by another emergency act, prohibiting conversions, and, finally, by permanent conversion legislation severely restricting appellants' power to convert Van Ness. See Rental Housing Conversion and Sale Act of 1980, D.C.Code Ann. Sec. 45-1601 et seq. (1981). ²

Appellants then sued the District government in the federal court. The complaint alleged violations of appellants' due process and equal protection rights claiming that the District Council's actions, and the inaction of the Department of Housing and Community Development, resulted in a taking of appellants' property without just compensation and constituted an unlawful exercise of police power; the current condominium law is alleged to constitute an impermissible delegation of legislative authority to the tenants. Appellants sought injunctive and declaratory relief to prevent the District from further interference with their property rights and to have the District's past actions declared illegal. The complaint also sought monetary damages and a writ of mandamus compelling the District government to take those steps necessary to restore appellants' rights as they existed when the original conversion applications were filed.

The District moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The District also argued that the local courts had exclusive jurisdiction over the dispute under the District of Columbia Administrative Procedure Act. Moreover, the District asserted that appellants had invoked federal jurisdiction "solely ... to circumvent an adverse ruling by the District of Columbia courts," Brief for Appellees at 14, and that the WHOC litigation in the local courts operated as a res judicata bar to appellants' claims.

Following oral argument, the lower court dismissed the complaint for want of jurisdiction--the failure to present a substantial constitutional question--under 28 U.S.C. Secs. 1331 and 1343. The lower court went on to find that even had appellants' allegations presented a substantial claim for relief, exclusive jurisdiction would lie in the District of Columbia court system under the local Administrative Procedure Act and the District of Columbia Court Reform and Criminal Procedure Act of 1970. ³ Finally, the court added, abstention was warranted under the facts of the case although it did not articulate any fact, policy or local law question upon which an abstention order might be based. ⁴

This appeal followed.

II.

The district court ruled that appellants failed to establish jurisdiction under 28 U.S.C. Secs. 1331 or 1343. While the jurisdictional threshold under each section is distinct, the difference seems more stylistic than substantive. Harper v. McDonald, 679 F.2d 955, 958 n. 4 (D.C.Cir.1982). Under section 1331, a complaint may be dismissed where the alleged constitutional violation "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Similarly, a federal constitutional claim may be dismissed under section 1343 only if it is "obviously frivolous" or where "its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974) (quoting Hannis Distilling Co. v. Mayor of Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910)). Harper v. McDonald, 679 F.2d at 958; Tuck v. Pan American Health Organization, 668 F.2d 547, 549 n. 3 (D.C.Cir.1981). Under either standard, appellants have established federal court jurisdiction. ⁵

The appellants alleged in their complaint that the District of Columbia violated their rights under the due process clause and the equal protection clause by refusing to permit the conversion of appellants' building through administrative delay on their applications, by enacting successive and illegal emergency measures which prohibited conversion, and by impermissibly delegating to the tenants of the building the power to prohibit conversion under the current legislative scheme. The complaint also alleges that the District, through the totality of its actions and inactions, has unlawfully taken the owners' property without just compensation.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Supreme Court ruled that an administrative agency's failure to provide the appellant with a state-created entitlement prior to the termination of that claim under state procedure, deprived the appellant of a protected property interest in violation of the due process clause. ⁶ The Court carefully distinguished that situation from one where state legislative action terminates a party's claim. A state legislature was free to rescind statutory entitlements without violating the due process clause because "[i]n each case, the legislative determination provides all the process that is due ...." Id. at 433, 102 S.Ct. at 1156.

The District relies on this latter principle and argues that appellants' claims lack merit because the government is free to modify or eliminate statutory entitlements. See, e.g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). This argument misses the mark. Appellants have challenged the Department's arbitrary delay and refusal to grant conversion permits as well as the District Council's statutory changes. Logan makes clear that the two challenges raise distinct due process questions and that the cases relied upon by the District do not allow the executive branch--arbitrarily to rescind entitlements guaranteed by the legislative branch. Moreover, the alleged deprivation in this case was occasioned in large part by legislative maneuvering that the District of Columbia Court of Appeals has held illegal. Under Logan, these claims are hardly "wholly insubstantial," Bell v. Hood, 327 U.S. at 682, 66 S.Ct. at 776, or "obviously frivolous." Hagans v. Lavine, 415 U.S. at 537, 94 S.Ct. at 1379 (citations omitted).

Appellants have also challenged the sequence of legislative enactments by the District Council prohibiting conversion as exceeding the...