As published in the August 2005 edition of For the Defense, published by the Defense Research Institute (DRI). For more information about DRI, visit its web site. Copyright 2005 DRI.
by George W. Royer, Jr. and Scott W. Faulkner
It is hornbook law that plaintiffs need not exhaust judicial remedies before bringing their action in federal court pursuant to 42 U.S.C. §1983. The Supreme Court has long said so. See McNeese v. Board of Education, 373 U.S. 668 (1963); Patsy v. Board of Regents, 457 U.S. 496 (1982). However, although § 1983 does not contain an independent exhaustion requirement, a plaintiff cannot ignore available state remedies prior to asserting some types of claims for deprivation of constitutional rights. In several contexts, including § 1983 actions asserting due process and takings claims, plaintiffs are required to resort to state judicial and administrative remedies before maintaining a federal claim. Moreover, they may not have a maintainable federal claim at all because of the availability of adequate state remedies. Determining when a § 1983 plaintiff must first exhaust or utilize state court or administrative remedies is not always easy, and the law within a single circuit and among the several circuits is not always consistent. This article explores the rules governing state remedy exhaustion in § 1983 actions, and the related issue of when a prospective plaintiff is required to exercise state remedies in lieu of a § 1983 claim.
These issues routinely arise in several types of cases, perhaps most frequently in public
employment litigation and land use cases. After a public employee is terminated, for example, he
or she often raises both federal procedural and substantive due process claims in a federal
lawsuit arising out of the termination. In land use cases, after a developer is denied a building
permit or subdivision plat approval, procedural and substantive due process claims are often
asserted by the developer in addition to state and federal inverse condemnation claims. In a
similar context, after a property owner is denied the right to use his or her property in a certain
way because of a zoning ordinance, or after a state or local actor is alleged to have "taken"
property by regulatory action, due process and takings claims are often asserted. Often in these
situations it is possible to successfully argue that the federal claims are due to be dismissed,
based solely on the existence of state judicial and administrative remedies available to the
plaintiff.
To state a federal procedural due process claim under the Fourteenth Amendment, a plaintiff must show first that he or she has a constitutionally protected property or liberty interest, and second that he or she was deprived of that interest without constitutionally adequate process by a defendant acting under color of state law. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Not every interest asserted by a plaintiff is protected under the Due Process Clause. In many cases, the due process analysis begins and ends with a finding that the plaintiff did not have a constitutionally protected property or liberty interest. Even when there exists a constitutionally protectable interest, however, § 1983 plaintiffs asserting a procedural due process claim often do not have a maintainable claim because of the existence of adequate post-deprivation state remedies.
Two Supreme Court cases provide the starting point for this analysis. In Parratt v. Taylor, 451 U.S. 527 (1981), the Supreme Court held that the Due Process Clause is not violated by unauthorized negligent actions of state officials if the state makes available a meaningful post-deprivation remedy. In Hudson v. Palmer, 468 U.S. 517, 533 (1984), the Supreme Court extended the Parratt holding to include intentional acts of state officials, holding that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available."
Most circuits have interpreted Parratt and Hudson to stand for the proposition that the Due Process Clause does not require pre-deprivation hearings where the holding of such a hearing would be impracticable or infeasible. See, e.g., McKinney v. Pate, 20 F.3d 1550, 1562 63 (11th Cir. 1994); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir. 1991); Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984). See generally, Sheldon H. Nahmod, Due Process, State Remedies, and Section 1983, 34 U. Kan. L. Rev. 217 (1985). Rather, all that due process requires in such circumstances is a post-deprivation "means of redress for property deprivations satisfy[ing] the requirements of procedural due process." Parratt, 451 U.S. at 537.
The significance of this rule for defendants defending § 1983 actions is that, even when the plaintiff alleges and has proof that he or she was denied a property or liberty right without proper pre-deprivation notice and a hearing, the plaintiff will often not have a maintainable federal procedural due process claim as long as the state has made available a judicial remedy in state court by which the plaintiff may seek redress for the deprivation. Under Parratt and Hudson, it is not the legal errors of the defendants themselves, but the state's refusal to provide a remedy for those errors that gives rise to a procedural due process violation. In other words, the process for procedural due process purposes is not only limited to the process "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." Horton v. Board of County Commissioners of Flagler County, 202 F.3d 1297, 1300 (11th Cir. 2000). As long as the state courts, if asked, could provide a remedy by which redress can be sought for the alleged violation, then there is no federal due process claim, even if plaintiff never sought to take advantage of the state remedy. See id.; Rodriguez, 928 F.2d at 31.
The Parratt doctrine is not an exhaustion requirement, nor is it based on ripeness considerations. Rather, the plaintiff does not have a federal procedural due process claim at all because of the existence of state remedies. As such is the case, the traditional exceptions to exhaustion do not apply. See McKinney, 20 F.3d at 1564 n. 20. Under the Parratt doctrine, the mere existence of the state remedy operates to bar any procedural due process claim, because the available state remedy is all the process that is due. The sole issue in procedural due process cases, therefore, is whether a plaintiff has an adequate remedy at state law to redress whatever procedural deprivations he or she claims to have suffered. If he or she does, no maintainable procedural due process claim exists. See Horton, 202 F.3d at 1300 ("If state courts would [provide an adequate remedy], 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."). See also Strasburger v. Bd. of Educ. Hardin County Community Unit School Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998) (holding that, because the plaintiff "has not alleged or shown that [the state court] post-deprivation remedies are lacking[,] . . . plaintiff has not made out a procedural due process violation that necessitates a federal remedy").
For example, the Parratt doctrine operates to bar a procedural due process claim in public employment cases where the plaintiff claims that he or she was denied due process because the decision-maker at the pre-deprivation hearing was biased, solely because the state provides judicial review in the form of common law certiorari review of that claim. See McKinney, 20 F.3d at 1565. It also operates to bar a procedural due process claim where the plaintiff alleges that a state or local actor converted or deprived the plaintiff of his or her property, solely because the state provides judicial review in the form of tort actions to redress those claims. See Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996) (no procedural due process claim based on the fact that police officer seized plaintiff's property on behalf of landlord in a tenant dispute because of the availability of state remedies); Germano v. Winnebago County, 403 F.3d 926, 929 (7th Cir. 2005) (no procedural due process claim based on county's decision to raise insurance premiums for retired deputies, even though retired deputies had a property interest in the insurance coverage, because of the availability of state remedies). It further operates to bar a procedural due process claim in zoning disputes where the plaintiff alleges that the refusal to allow a certain use of property violated procedural due process rights, solely because the state provides administrative and judicial review of the plaintiff's claim. See Rodriguez, 928 F.2d at 31.
Parratt also bars procedural due process claims based on asserted violations of
liberty interests, as well as property interests. While, as with property interests, some asserted
liberty interests are protected from state action no matter what the procedure used to implement
the action, other constitutionally protected liberty interests may be taken away as long as
procedural safeguards are observed. See Wisconsin v. Constantineau, 400 U.S. 433,
436 37 (1971) ("Where a person's good name, reputation, honor, or integrity is at stake because
of what the government is doing to him, notice and an opportunity to be heard are essential.").
For these liberty interests, Parratt should apply and operate to bar any federal procedural
due process claim, as long as the other requirements for the doctrine are present. See
Zinermon v. Burch, 494 U.S. 113, 132 (1990) (a liberty interest case, holding that
Parratt does apply, not just to property interests, but also to liberty interests, although
finding Parratt inapplicable on other grounds: "In situations where a pre-deprivation
hearing is unduly burdensome in proportion to the liberty interest at stake . . . or
where the State is truly unable to anticipate and prevent a random deprivation of a liberty
interest, post-deprivation remedies might satisfy due process. Thus, the fact that a deprivation of
liberty is involved in this case does not automatically preclude application of the Parratt
rule."); Daniels v. Williams, 474 U.S. 327, 342 (1986) (Stevens, J. concurring in
judgments) (explaining that Parratt could defeat a procedural due process claim that
alleged a deprivation of liberty when "a pre-deprivation hearing was definitionally
impossible").
Parratt's reach, however, is not unlimited. As the Fifth Circuit has explained, "Parratt . . . is not a magic wand that can make any section 1983 action resembling a tort suit disappear into thin air." Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984). There are several well-established situations where the Parratt doctrine does not mandate the dismissal of a federal procedural due process claim. One is when a plaintiff can show that the available state remedies are inadequate to address the claimed violations. See Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O'Connor, J., concurring). This burden can be a difficult one for a plaintiff to overcome. The Supreme Court has held that state court judicial remedies are constitutionally adequate even when they do not provide all the relief available in a § 1983 action. See Parratt, 451 U.S. at 544. Some circuits have gone one step further and held that a judicial remedy is not necessarily required by the due process clause, and that a state can provide constitutionally adequate process through arbitration or administrative hearings. See Parrett v. City of Connersville, 737 F.2d 690, 696 97 (7th Cir. 1984) (arbitration is sufficient, and collecting cases holding the same); Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984) superseded by statute on other grounds (administrative proceedings adequate).
Another important limitation of Parratt is that it only applies to procedural rights, not substantive ones. Where a plaintiff claims that the state action violated a recognized substantive right, Parratt does not require dismissal of that action. See, e.g., Augustine v. Doe, 740 F.2d 322 (5th Cir. 1984). This is so even when the alleged substantive violation occurs during a due process hearing. When substantive rights are at stake, the availability of state tort remedies to redress the violation of the substantive right is irrelevant, subject to an exception discussed below. Determining whether a right is procedural or substantive can be difficult, however, and in light of a recent en banc Fifth Circuit decision, it may not even be necessary. In Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003), the Fifth Circuit held that the Parratt doctrine does not bar a due process claim when the liberty right at stake is important enough to warrant federal protection, apparently even when the liberty interest has been previously thought of as a procedural right, not a substantive one. See id. at 956 58, 968 70.
The Parratt doctrine similarly does not bar a § 1983 action when the plaintiff challenges the very procedure that the state agency or subdivision followed when denying plaintiff's property or liberty rights. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). In other words, when the claim is that the deprivation resulted from state actors simply following the procedure authorized by state or local law, and not from their random and unauthorized deviations from that procedure, a plaintiff can bring his or her claim in federal court even if state remedies exist. Loudermill was an example of this type of procedural due process claim. In Loudermill, the Supreme Court held that the plaintiff, who had a property interest in his employment, was entitled to a pre-deprivation hearing. 470 U.S. at 547. The plaintiff in Loudermill did not argue that state law entitled to him to a hearing, despite the fact that, for some reason, the state actors who were charged with implementing that scheme refused to give him one. Had that been his argument, Parratt presumably would have applied. Rather, his argument was based on the fact that state law did not provide him with a pre-deprivation hearing at all and that omission resulted in a deprivation of his procedural due process rights. Id. at 535, 544. Without deferring to possible state remedies for this claim as it would under Parratt, the Supreme Court agreed that the procedural due process clause required a pre-deprivation hearing. Id. at 546 48. See also Zinermon v. Burch, 494 U.S. 113, 136 38 (1990) (holding that, even though the challenge was to conduct not specifically authorized by statute, the challenge still was not subject to Parratt because the claim was that the established procedure provided state agents with the authority to violate constitutional rights in a "predictable" way). The circuits have similarly refused to apply Parratt when the challenge is to the established procedure itself, and not to a deviation from that procedure. See, e.g., Mitchell v. Fankhauser, 375 F.3d 477, 481 82 (6th Cir. 2004); Alexander v. Ieyoub, 62 F.3d 709, 713 (5th Cir. 1995).
Even when the challenge is to the procedure itself and, as a result, Parratt does not apply, the presence of state post-deprivation remedies may still be sufficient to satisfy the procedural due process clause. After weighing the factors of the Mathews v. Eldridge, 424 U.S. 319 (1976), balancing test, several circuit courts have concluded that, when the protected interest at stake is only slight, post-deprivation remedies provide all the process that is due. See Carcamo v. Miami-Dade County, 375 F.3d 1104, 1105 06 & n. 4 (11th Cir. 2004) (post-deprivation remedy sufficient for established procedure to comply with procedural due process clause when the interest at stake was the use of several hundred dollars for a brief period of time); Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir. 1982) (post- deprivation remedy sufficient when the interest at stake was the use of a car that had been towed and impounded). While not solely determinative, then, even when Parratt does not apply, the existence of post-deprivation remedies may still be sufficient to satisfy the procedural due process clause.
The Parratt doctrine is an effective defense in many § 1983 actions, barring
procedural due process claims based solely on the presence of state administrative and judicial
remedies. While the doctrine has its limits, defense counsel should look long and hard at whether
it applies in a § 1983 action.
Another federal claim whose existence in many ways depends on the presence or absence of state remedies is a takings claim based on the Fifth Amendment. That clause provides: "nor shall private property be taken for public use, without just compensation." U.S. Const., Amend. V. Most cases under the Takings Clause fall into two categories, see, e.g., Yee v. City of Escondido, 503 U.S. 519 (1992), and as shown below, the law with regard to exhaustion of state remedies often differs depending on which type of takings claim is asserted. The first category of cases is where the government authorizes the physical possession or takes title to property. In these cases, the primary question is whether the taking was for a public use, and if it was, whether the state or local government justly compensated the plaintiff. When the plaintiff's sole claim is that the taking violates the Public Use Clause, as shown below, because the taking was for a private purpose, some circuits do not require the plaintiff to take advantage of state judicial remedies to obtain just compensation. On the other hand, when the only claim is that the state or local government did not justly compensate for the taking, plaintiffs should be required to exercise their state remedies for just compensation first before having a maintainable federal takings claim.
The majority of cases fall into the second category of takings claims. In these, the government regulates the use of property, and the plaintiff claims that the regulation of his or her property constitutes a taking. These cases generally turn on whether the regulation at issue "goes too far" and amounts to a taking for which just compensation is required. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). So that federal courts can determine "how far the regulation goes," the Supreme Court has required a plaintiff to take advantage of administrative review of the initial regulatory decision and obtain a final decision from the state or local agency charged with implementing the regulatory scheme. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986). Likewise, so that the federal courts can determine whether the state took the property without providing just compensation, the Supreme Court requires a plaintiff to take advantage of state judicial remedies and seek compensation in state court. These two requirements are what one circuit has called the two takings hurdles: "the final decision hurdle and the just compensation hurdle." Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir. 1994). See also Forseth v. Village of Sussex, 199 F.3d 363, 372 (7th Cir. 2000) (calling the two requirements the "Final Decision Requirement" and the "Exhaustion Requirement"). As demonstrated above, both look to the presence of state administrative and judicial remedies and whether a plaintiff has taken advantage of them. If the plaintiff has not, he or she has no maintainable takings claim.
To satisfy the "final decision" hurdle for a takings claim, a plaintiff must demonstrate that the decision maker "charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186 (1985). Under this hurdle "a just compensation claim cannot ripen until local authority has determined the nature and extent of the development that will be permitted.'" Reahard, 30 F.3d at 1415. To obtain a final decision, a plaintiff will often have to take advantage of the administrative processes set up by state law.
The "final decision" prerequisite for the maintenance of a Fifth Amendment takings claim requires that a plaintiff not only wait for the decision of the governmental entity involved as to what use will be permitted of the subject property, but to thereafter pursue any available administrative review or appeal of that decision. See Williamson, 473 U.S. at 191 (no "final decision" reached until the local planning commission had "determine[d] that no variances will be granted" because only then could a jury determine whether the landowner would be "unable to derive economic benefit" from the land). As part of the administrative review, the Supreme Court has indicated that a plaintiff, once his or her plans have been denied, must seek approval for alternative, less ambitious plans. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 137 38 (1978). "Whether the inquiry asks if a regulation has gone too far,' or whether it seeks to determine if proffered compensation is just,' no answer is possible until a court knows what use, if any, may be made of the affected property." MacDonald, 477 U.S. at 350. The circuit courts have similarly required a plaintiff not only to seek review by means of a variance, but also pursue "alternative, less ambitious development plans." See Reahard, 30 F.3d at 1415 (requiring that plaintiff apply for "at least one variance" and pursue "alternative, less ambitious development plans" before satisfying the final decision hurdle). If a plaintiff does not pursue administrative review and does not seek approval for other less aggressive plans, he or she will not have a takings claim. See Penn Central, 438 U.S. at 137 38 (holding that, because the plaintiff had not sought approval for a smaller structure and because some other development might have been allowed, plaintiff did not have a takings claim).
However, the final decision requirement is not an exhaustion requirement in the sense that plaintiffs need not fully utilize all administrative and judicial forms of review, as the Supreme Court in Williamson was careful to point out. Once a plaintiff has obtained a final decision, he does not have to appeal that decision. On the other hand, to obtain a final decision under state law, as stated above, a plaintiff must often seek administrative review of an initial decision. This distinction between obtaining a final decision and appealing a decision once final is fact specific and often difficult, yet significant. Generally put, the plaintiff must pursue administrative appeals to obtain the final word on what development is allowed and what is prohibited. The plaintiff, on the other hand, does not have to exhaust state judicial review of that final decision (by filing an action for common law certiorari or a declaratory judgment, for example). See Williamson, 473 U.S. at 194 n.13. The importance of this distinction between procedures that plaintiffs must exhaust and ones they do not have to is sometimes diminished. As seen below, plaintiffs often will be forced to exhaust all state administrative and judicial remedies not by Fifth Amendment doctrine but by state law requirements applicable to state-law inverse condemnation claims.
In the Fifth, Sixth, and Ninth Circuits, the final decision hurdle is the only prerequisite for maintaining a takings claim when the claim is based on the allegation that the state took the property for a private, rather than public, purpose. When the claim is raised solely under the Public Use Clause, those circuits reason that, since the taking of property for private purpose is never constitutional, a plaintiff should not be forced to clear the second hurdle that forces plaintiffs to seek just compensation in state court before resorting to federal court. See Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991); Montgomery v. Carter County, Tennessee, 226 F.3d 758 (6th Cir. 2000); Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996). To force them to do so, these circuits reason, would be the same thing as imposing an exhaustion requirement, which Patsy seems to forbid and Supreme Court precedent does not strictly require. Only when the state compensation proceedings are relevant to the specific federal claim asserted, these circuits conclude, should plaintiffs be required to exhaust them.
In other circuits (and in every circuit when the plaintiff asserts a takings claim under the
Just Compensation Clause), a plaintiff must not only satisfy the final decision hurdle, but must
also satisfy the "just compensation hurdle." This second hurdle, like the first one, is also
dependent on the presence of state remedies. The Supreme Court in Williamson
described this "just compensation hurdle" as follows:
| . . . because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action. | |
Williamson, 473 U.S. at 194 n. 13 (emphasis in original).
As with the procedural due process claims, the rationale for this requirement is that the "state's action is not complete' in the sense of causing a constitutional injury unless or until the State fails to provide an adequate post-deprivation remedy for the property loss.'" Williamson, 473 U.S. at 195. This requirement provides that, "[o]rdinarily, a plaintiff must seek compensation through state inverse condemnation proceedings before initiating a takings suit in federal court, unless the State does not provide adequate remedies for obtaining compensation." Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734 n. 8 (1997). With near uniformity, the circuits have recognized that as "a practical matter, Williamson precludes litigation of the merits of a just compensation claim in federal court unless the state declines to provide adequate procedures through which an aggrieved party might seek compensation." Reahard, 30 F.3d at 1417. See also Pascoag Reservoir & Dam, L.L.C. v. Rhode Island, 337 F.3d 87, 90 94 (1st Cir. 2003) (holding plaintiff had no federal takings claim because plaintiff did not take advantage of state law inverse condemnation procedures in state court); Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 99 100 (2d Cir. 1992); Cowell v. Palmer Township, 263 F.3d 286, 291 (3d Cir. 2001); Front Royal and Warren County Industrial Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 1998); Liberty Mutual Ins. Co. v. Brown, 380 F.3d 793, 798 (5th Cir. 2004); Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir. 1993).
Therefore, in similar fashion to the Parratt procedural due process doctrine, as long as the state courts, if asked, could provide a remedy for the alleged taking without just compensation, then there is no federal takings claim, even if the plaintiff never sought to take advantage of the state remedy. This is so even when the reason the plaintiff was not able to utilize the state inverse condemnation proceedings is that the plaintiff did not exhaust all administrative and judicial remedies before filing a state law inverse condemnation action as he or she was required to do so by state law. In this circumstance, when the exhaustion requirement is grounded in state law, not federal law, the circuit courts have required plaintiffs to exhaust their administrative and judicial remedies so that they can properly present their inverse condemnation action to the state court. The Fifth Circuit has explained that "[a]ny other rule would allow plaintiffs to circumvent state court by failing to comply with state procedural requirements for bringing inverse condemnation claims, thereby nullifying Williamson County's requirement that the plaintiff avail itself of the available state procedures for obtaining compensation." Brown, 380 F.3d at 798. This rule does not violate the Patsy rule of no-exhaustion, the Fifth Circuit reasoned, because it does not impose an independent federal requirement that plaintiffs exhaust all remedies. After all, "[i]f a plaintiff is able to have the merits of its claim considered in state court without first having to exhaust administrative remedies, then no administrative exhaustion is required for the takings claim to be considered ripe in federal court." Id. at 798 99.
The presence of state remedies thus affects a plaintiff's ability to raise a takings claim in two distinct ways. A plaintiff must normally take advantage of administrative review before bringing his or her claim. More significantly, as with procedural due process claims, in most takings claims the mere presence of a state judicial remedy, often an inverse condemnation action, will operate as a bar to a federal takings claim at least one based on the Just Compensation Clause. These requirements cannot always be rigidly applied, however. In Williamson, the Supreme Court adopted a limited exception to the just compensation hurdle. The Court held that a plaintiff does not first have to exhaust state remedies by filing an action for inverse condemnation if "the inverse condemnation procedure is unavailable or inadequate." Williamson, U.S. at 197. In the great majority of cases, though, if a state law action exists and could, if all its prerequisites are complied with, provide relief, the state remedy will be deemed adequate.
The requirement that a plaintiff exhaust state judicial remedies to obtain just compensation
before having a ripe federal takings claim is still good law. In San Remo Hotel v. City and
County of San Francisco, ___ U.S. ___ (June 20, 2005), 2005 WL 1421451, the Supreme
Court held that, when a plaintiff is required under Williamson to pursue compensation
in state court before having a ripe federal takings claim, a federal court in a subsequent §
1983 action for just compensation is bound by the Full Faith and Credit Clause to give
preclusive effect to that state court judgment. In other words, under current takings doctrine, a
determination made in connection with the state judicial remedy to which a plaintiff is first
required to resort will often operate as a bar to a subsequent federal takings claim. However, in a
separate opinion concurring in the judgment by Chief Justice Rehnquist, joined by Justices
O'Connor, Kennedy, and Thomas, these four members of the Court indicated their belief that the
exhaustion requirement of the just compensation hurdle prong of Williamson "may have
been mistaken." Citing Patsy, among other reasons, these four Justices advocated for
reconsideration of the just compensation hurdle. This is an issue that will most likely be the
subject of future constitutional litigation.
In most cases, the presence or absence of state remedies has no affect whatsoever on a plaintiff's ability to raise a substantive due process claim. As one circuit court has explained, that is precisely the difference between procedural and substantive due process claims. The substantive due process claim, unlike a procedural one, "is complete when it occurs; hence the availability vel non of an adequate post-deprivation state remedy is irrelevant." McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994). That is not always the case. The existence of state remedies does influence one particular, somewhat disputed, type of substantive due process claim.
Some circuits, though not all, recognize a substantive due process claim based on the taking of state-created property rights; most significantly for this article, rights relating to land ownership. The constitutional footing of this sort of substantive due process claim is uneasy and courts, even within a single circuit, have struggled with these claims. For example, in the Eleventh Circuit, two different panels have reached opposite conclusions, one recognizing a substantive due process takings claim and one holding that no such claim exists. See Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 614 15 (11th Cir. 1997) (recognizing that rights relating to land ownership are subject to the protection of the substantive due process clause); Greenbriar Village L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (without citing Lake Jackson's contrary decision, holding that, because rights relating to land ownership are "state-granted and defined," they are therefore not subject to the protection of the substantive due process clause).
While the issue is apparently an open one in the Eleventh Circuit, it is not in the First, Second, Third, Seventh, Eighth, Ninth and Tenth Circuits, all of which recognize a substantive due process takings claim. As the Third Circuit has concluded, land "ownership is a property interest worthy of substantive due process protection." DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600 (3d Cir. 1995). In the circuits that do recognize a substantive due process takings claim, the presence of state remedies may very well mean that the plaintiff does not have a claim at all.
Like takings claims, any substantive due process claim for the deprivation of land ownership rights should be subject to a "final decision" requirement. The two claims are often based on the same exact conduct and attempt to remedy the same wrong. As such, the same policies justifying the final decision requirement in takings cases are just as applicable to these sorts of substantive due process claims. In both, a plaintiff is challenging a decision by a state or local agency affecting his or her property rights. In both, a federal court is called upon to judge the propriety of that decision. In both, the plaintiff should be forced to utilize the administrative procedures provided for by the state to obtain the agency's final decision before bringing a federal claim.
The Seventh, Ninth and Tenth Circuits have expressly considered this issue and imposed a
final decision requirement, forcing plaintiffs to utilize state administrative remedies before
raising a substantive due process takings claim. See Daniels v. The Area Plan Commission of
Allen County, 306 F.3d 445, 453 n. 5 (7th Cir. 2002) ("We have chosen to review ripeness
concerns in claims for takings . . . under the Fifth Amendment's takings analysis
even if a litigant has claimed that his property was taken in violation of his substantive due
process rights."); Landmark Land Co. v. Buchanan, 874 F.2d 717, 722 (10th Cir. 1989)
("Thus, the Williamson County ripeness test applies with equal force to substantive due
process claims."); Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th
Cir. 1986) ("We conclude that under federal law the general rule is that claims for inverse
taking, and for alleged related injuries from denial of equal protection or denial of due process
by unreasonable delay or failure to act under mandated time periods, are not matured claims
until planning authorities and state review entities make a final determination on the status of the
property."). For defense counsel in one of the circuits that recognizes a substantive due process
takings claim, the presence of state remedies may very well bar this due process
claim.
While Patsy's no-exhaustion requirement may be the general rule in § 1983 actions, there are times when a plaintiff does not have a maintainable federal claim because of the presence of state administrative or judicial remedies. The doctrines discussed above provide defense attorneys in § 1983 actions with strong bases on which to argue that the federal claims are due to be dismissed.