What's this, a federal court actually allowing a federal Fifth Amendment claim to be litigated in federal court? Why that's as rare as hen's teeth, although it shouldn't be.
That's the ruling of the Fourth Circuit in Sansotta v. Town of Nags Head, No. 12-1538 (July 25, 2013), which reversed the district court's dismissal of a takings claim under Williamson County. The court of appeals held that the Town's removal of the case to federal court waived the state litigation Williamson County defense. Other courts have rejected the same tactic (property owner does what Williamson County requires and files its takings claim in state court, only to have the government remove the case to federal court under College of Surgeons, and then argue that the federal court should dismiss the case under Williamson County), but it's nice to see a U.S. Court of Appeals say so.
Here, the Owners did exactly what San Remo Hotel permits: they filed both their takings claims and their inverse condemnation claim, see N.C. Gen. Stat. § 40A-51, in state court. The Town then removed the case to federal court, as it was permitted to do under 28 U.S.C. § 1441 because the complaint raised a question of federal law. See 28 U.S.C. § 1331; Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 152–53 (1908). The Town then invoked the Williamson County state-litigation requirement and asserted that the Owners’ taking claim was unripe.. . .Allowing the Town to invoke the Williamson County state-litigation requirement after removing the case to federal court would fail to fulfill the rationale for this prudential rule and would create the possibility for judicially condoned manipulation of litigation.
Slip op. at 22-25 (footnote omitted).
We won't go into the court's ruling in detail because our Pacific Legal Foundation colleague (and fellow U. Hawaii alum) J. David Breemer (who represents the prevailing party in the case), sets it all out in this post.
But you really should read the entire opinion.
Sansotta v. Town of Nags Head, No. 12-1538 (4th Cir. July 25, 2013)