Williamson County gives everyone grief, and if you needed any more proof, here it is.
In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court's award of attorneys' fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County.
The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn't have an "objectively reasonable basis for seeking removal." The court held that the Township removed only to delay the case and make the property owner jump through hoops which the Township knew were pointless. "Bad faith motivation," as the court held.
The Township appealed the fee award to the Sixth Circuit, and after acknowledging that it removed the case knowing the federal claims were not ripe and that the district court could not hear them, nonetheless argued it had a reasonable basis to remove (federal question jurisdiction - see City of Chicago v. Int'l College of Surgeons, 522 U.S. 156 (1997)), and that there were no "unusual circumstances" justifying fee shifting because the removal was not in bad faith.
The Sixth Circuit roundly disagreed, holding that the district court's bad faith finding was not clear error because it did not stink like a "five week-old, unrefrigerated dead fish." Really: see slip op. at 8 ("We review the district court’s finding of bad-faith motivation for clear error, and so we would reverse only if the 'decision strikes us as wrong with the force of a five-week-old, unrefrigerated dead fish.'") (quoting United States v. Perry, 908 F.2d 56, 58 (6th Cir.), cert. denied, 498 U.S. 1002 (1990)). Protip: add that one to your quote arsenal.The court held that Williamson County and San Remo Hotel made the removal objectively unreasonable, even if the ripeness problem was merely a prudential one. Slip op. at 9 ("The Plaintiffs properly filed their federal takings claims in Michigan state court as part of an inverse-condemnation action. It was Pennfield’s choice to remove to federal court that brought these claims before a forum in which they were unripe. Therefore, Pennfield is responsible for ripeness-related delays.").
Second, the "six-day turnaround between removal an its motion to dismiss raises suspicion that Pennfield was aware that the federal claims were unripe and lacked a good-faith belief that the district court should have heard the claims when it removed." Slip op. at 9. The court held that this should not have been in federal court.
While we naturally agree with the court and find the Township's argument a classic exercise in chutzpah, we can see how it got caught up here: other circuits have accepted such arguments without batting an eyelash, we are not aware of any other decision where the remover got nailed with fees and costs even where the court remanded; College of Surgeons; seems to okay it; and the Williamson County rationale supports it.
But according to the Supreme Court, the available state procedures requirement isn't just a forum choice like the Sixth Circuit treated it: a federal Fifth Amendment takings claim isn't ripe until the state has declined to provide compensation, and there isn't a taking at all until that happens (because, you know, the Takings Clause doesn't prohibits takings, it only frowns upon uncompensated takings). Which means that the substantive federal claim isn't ripe, at least until no compensation is recovered under a state law inverse claim, and Williamson County's logic should not just result in the unavailability of a federal court forum. So it seems that under that logic, you should not be able to bring a federal takings claim at the same time as your state law inverse claim, even in state court?
In our view, the Township's argument and the Sixth Circuit's analysis just highlights the absurdity of Williamson County's state procedures requirement.
As we started off this post, Williamson County just gives everyone grief.
A Forever Recorvery, Inc. v. Township of Pennfield, No. 13-2657 (6th Cir. Apr. 2, 2015) (unpub.)
