Not a lot in Jabary v. McCollough, No. 15-40009 (Apr. 19, 2017) to grab onto, so we're not really surprised that the Fifth Circuit didn't publish. But because the case involves Williamson County takings ripeness and is in our wheelhouse, we're posting it nonetheless.
The first two sentences, "City building inspector Bret McCullough shut down Mike Jabary’s hookah lounge. He did so by leaving a notice on the door of the establishment that summarily revoked Jabary’s certificate of occupancy and informed him that he was violating the city code by doing business without the certificate" give you a clue that this is a procedural due process case as well as a takings case. Jabary met with success with his due process challenge (the district court denied the building inspector's motion for summary judgment on immunity grounds, after which the inspector appealed), and, predictably, the district court held that Jabary's takings claim wasn't ripe because he had not sought compensation in Texas state courts. Nothing to see here folks, move along.
The Fifth Circuit bounced the inspector's appeal for lack of jurisdiction because a question of fact related to immunity had not been resolved, meaning it was too early for the appeals court to weigh in. Back to district court.
And the court affirmed dismissal of the takings claim because it isn't ripe.
Under this rule, Jabary’s takings claim is not ripe. Jabary’s state court takings lawsuit was dismissed for failure to comply with a reasonable state-law exhaustion requirement because he did not file an administrative appeal within fifteen days of the time his certificate of occupancy was revoked. Jabary II, 2014 WL 3051315, at *3. Jabary argues that there is now no available means for pursuing compensation under state law, as demonstrated by the dismissal of his state lawsuit for failure to file an administrative appeal that is time-barred. He also argues that there is no adequate means for pursuing compensation under state law because Texas law requires, as a pre-requisite to an inverse-condemnation lawsuit, that he exhaust administrative remedies that did not provide for compensation and were therefore futile. Although at first blush these arguments give us pause, we have already held in similar circumstances that state law provided an available and adequate means of obtaining compensation even though the plaintiff’s state claims were time-barred and required exhaustion of non-compensatory administrative appeals.
Slip op. at 8. No surprise there.
But it wasn't all bad for Jabary - the court concluded that the district court should have only dismissed without prejudice. Live to fight another day.
And if the history of this case is any indication, Jabary will continue to fight another day.
Jabary v. McCollough, No. 15-40009 (5th Cir. Apr. 19, 2017) (per curiam)
