JERRY E. SMITH, Circuit Judge:
The City of New Orleans appeals a jury verdict for Rosedale Missionary Baptist Church finding that the city violated the church's Fourteenth Amendment right to due process by demolishing the church building without notice. Because the church raises only a procedural due process claim, and the resolution of that claim depends on the resolution of the church's state court takings claim, we reverse the judgment and render a judgment of dismissal.
Hurricane Gustav struck New Orleans in September 2008. A few days later, the city issued twenty-five Gustav-related demolition notices, including one for 4001 Reynes Street, where the church was located. The city then demolished the property without giving notice to the church. A consent decree in place at the time required the city to give notice of the proposed demolition of any structure it determined to be a threat to the "public health, safety, and welfare . . . as a result of damage from Hurricane Katrina, Hurricane Rita, or wind and flood damage associated with those hurricanes." Consent Decree, Joshua v. City of New Orleans, No. 07-4205 (E.D.La. Jan. 25, 2008), ECF
The church did not, however, seek sanctions for the city's violation of the consent decree. It only sued for damages for violations of its procedural and substantive due process rights and for just compensation under the Takings Clause. The decree explicitly states that it "does not cover or settle any aspects of individual claims for damages associated with past or future wrongful demolition." Id. So the decree, by its plain terms, does not cover the church's takings or due process claims.
Nevertheless, mistakenly believing that the consent decree gave it the right to do so, the church brought a takings claim and a substantive and procedural due process claim against the city in federal court. Before trial, the district court dismissed the takings claim as unripe based on Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), but the city did not raise a ripeness argument with respect to the due process claims, and the parties went to trial.
The city argues that it raised a ripeness challenge to the due process claims in its pretrial memorandum of law, seven days before trial, but that more accurately appears to have been an argument that the church failed to state a procedural due process claim because no pre-taking process was constitutionally required under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). At the close of the church's case at trial, however, the city did raise a ripeness challenge to the due process claims, and it did so again after trial, but the district court denied both motions.
The jury found that the city had violated the church's "Fifth or Fourteenth Amendment constitutional rights" and was not "excused because the church was in imminent danger of collapse."
The city argues the case should be dismissed because the church's procedural and substantive due process claims are unripe for review under Williamson County, 473 U.S. at 186, 194, 105 S.Ct. 3108, and John Corp. v. City of Houston, 214 F.3d 573, 584 (5th Cir.2000). The church responds that the city waived any ripeness arguments with respect to its due process claims because they were not raised until the close of the church's case at trial. The city counters that the ripeness of a takings claim under Williamson County is a jurisdictional requirement that cannot be waived or forfeited, citing Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir.1991). That is indeed what we held in Samaad, but the Supreme Court has since explicitly held that Williamson County's ripeness requirements are merely prudential, not
We do not need to address the novel question whether we may deem Williamson County ripeness arguments forfeited if they are raised only at the close of the plaintiff's case at trial, because the church's due process claim is unripe based not on Williamson County but on general ripeness principles. John Corp., 214 F.3d at 586. Because the church does not allege a substantive due process claim that is independent of its procedural due process claim, and we cannot address the procedural due process claim without knowing the outcome of the takings claim, which is not before us, we dismiss the case as unripe.
Although "no bright-line rule exists for determining whether a matter was raised below,"
Although the church asserted in its complaint that it was making a substantive due process argument, it never explained what that argument was. A substantive due process violation is an "action[]
The church did not once mention its substantive due process claim for the remainder of the district court proceedings. The only other time it came up was when the court denied a motion to dismiss the complaint pretrial because that motion to dismiss was untimely. At trial, the church did not argue that its due process rights were violated independently of its allegation that the city had failed to follow adequate procedural safeguards. On the contrary, the church's counsel twice asserted at trial that the only issue was whether pre-demolition process should have been provided.
Moreover, the district court never ruled on the merits of the substantive due process issue. At the close of trial, it addressed only the procedural due process claim: "[The church] asserts that the city's demolition of its church without prior notice and an opportunity to be heard violated its procedural due process rights under both the state and federal Due Process Clauses of the Fifth and Fourteenth Amendments." The court then instructed the jury only on the elements of a procedural due process claim, reciting the familiar factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and concluded by saying that the due process issue turned on whether the city had good reason not to provide notice, all without objection from the church. The verdict form did not separately discuss procedural and substantive due process claims.
Thus, to the extent the substantive due process claim, whatever it may be, may differ from the procedural due process claim, that argument was not pressed before the district court and is waived. The mere recitation of the vague words "substantive due process" in one's complaint—without a word more of elaboration by either the parties or the court over the course of an entire trial—is insufficient to preserve such a claim on appeal.
The remaining question is whether the procedural due process claim is ripe under general ripeness principles. John Corp., 214 F.3d at 586. We may raise
John Corp., like the instant case, was brought by a plaintiff alleging that it was not provided sufficient process before the state demolished its property. John Corp., 214 F.3d at 585. We held that "it will only be when a court may assess the takings claim that it will also be able to examine whether [the owner of the demolished property was] afforded less procedure than is constitutionally required." Id. Until then, "additional factual development is necessary." Id. at 586. The reason is that, where the injury that resulted from an alleged procedural due process violation is merely a taking without just compensation, we cannot know whether the plaintiff suffered any injury until the takings claim has been adjudicated.
We must therefore allow state takings procedures to run their course before we can adjudicate the procedural due process claim. Indeed, the state adjudication of the takings claim is likely to moot this case, allowing us to avoid the constitutional question whether notice is required before a taking under the Due Process Clause.
The judgment is REVERSED, and a judgment of dismissal without prejudice is RENDERED.