Posted by: Patricia Salkin | August 13, 2017

Fifth Circuit Court of Appeals Dismisses Takings Claims as Unripe


The City building inspector shut down Jabary’s hookah lounge by revoking Jabary’s certificate of occupancy and informed him that he was violating the city code by doing business without the certificate. At issue in this case was whether the building inspector’s action, taken on behalf of the City of Allen, violated the United States Constitution’s Due Process and Takings Clauses. In this case, the building inspector appealed two district court decisions denying summary judgment on Jabary’s procedural due process claim.

It was undisputed that Jabary had a property interest in his certificate of occupancy, that he was deprived of it prior to any opportunity for a hearing, or that there were adequate post-deprivation procedures in place. Therefore, the question of whether the building inspector’s action violated Jabary’s clearly established right to a pre-deprivation hearing depends on whether there was an emergency was arbitrary or an abuse of discretion. Here, the building inspector claimed that unsanitary conditions and concerns over the sale of the property precluded any argument that he acted arbitrarily or abused his discretion. The court found that since these arguments attacked the genuineness of the issue of fact identified by the district court rather than its materiality, it lacked jurisdiction to consider them on interlocutory review and remanded the case for further consideration of Jabary’s procedural due process claims against the building inspector.

The court next held that Jabary’s state court takings lawsuit was properly 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because he did not file an administrative appeal within fifteen days of the time his certificate of occupancy was revoked.


Additionally, the district court correctly found that Jabary’s federal takings claim was unripe due to his failure to use adequate state procedures for obtaining just compensation that were available at the time of the taking. However, the court found that the dismissal should have been without prejudice due to the fact that the district court lacked subject matter jurisdiction to hear the issue on the merits.


McCullough v City of Allen, 686 Fed. Appx. 282 (5th Cir. CA 4/19/2017)


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