Opposition Brief — Miami-Dade County v. Agripost, Inc.

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Supreme Court, U.S.

FILED

(2 JUN 16 £060

No. 99-1856

CUENM

IN THE e

Supreme Court of the United States

MIAMI-DADE COUNTY, through its Manager and

Board of County Commissioners,

Petitioner,

v.

AGRIPOST, INC., and AGRI-DADE, LTD.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

JOSEPH W. BEASLEY

SHELDON H. ELSEN

JOSEPHS, JACK & GAEBE Counsel of Record

Grove Professional Building LesLic A. LUPERT

Suite 100 PETER ADELMAN

2950 S.W. 27" Avenue ORANS, ELSEN & LuperT LLP

Miami, FL 33133-3765 One Rockefeller Plaza

(305) 445-3800

New York, NY 10020

(212) 586-2211

Attorneys for Respondents

160366

@ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

)

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QUESTIONS PRESENTED

1. Should this Court review the question of whether the

Rooker-Feldman doctrine bars a Federal action for an

uncompensated taking when an Eleventh Circuit panel

unanimously found (a) that the takings claim had not been

adjudicated and could not have been adjudicated in a prior

State court action, (b) that Rooker-Feldman was therefore

not triggered, and (c) that the Federal takings claim was

properly dismissed without prejudice as unripe?

2. Should this Court review Florida law questions of

claim preclusion and issue preclusion which were decided

unanimously against petitioner by the Eleventh Circuit and

the District Court?

3. Should this Court grant certiorari to review

petitioner’s claim and issue preclusion and Rooker-Feldman

claims when no judge of the Eleventh Circuit either accepted

them or considered them sufficiently meritorious to justify

polling when petitioner sought rehearing en banc?

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STATEMENTS PURSUANT TO RULE 29.6

Respondent, Agri-Dade, Ltd., is a Florida limited

partnership.

Respondent, Agripost Inc., has no parent corporation and

no publicly held company owns 10% or more of its stock.

TABLE OF CONTENTS

Page

ee ee sos Wawa nkeb een eee an 1

Statements Pursuant to Rule 29.6 .............. li

pg EPPO eT eT Sere Pe Cer Te Tr ore lil

a rer ererer or rere iv

CE EERE ee ere l

Fe. PI TOS no nce vcntnncnnss |

B. The Florida State Court Proceeding To

Review Dade’s Administrative Closing ... 2

C. Consequences of the Plant Closing ....... 5

D. Federal Proceedings Below ............. 5

Reasons for Denying the Writ ................. 8

I. There Is Nothing In This Case To Merit

Supreme Court Review ................. 8

II. Dade’s Effort To Create Illusory Conflicts .. 9

III. Petitioner’s Discussion Of The Rooker-

Feldman Doctrine Is Irrelevant .......... 11

IV. Both The Eleventh Circuit And The District

Court Had Subject Matter Jurisdiction For

The Rulings At Issue Here .............. 12

Pe fie iviseuacadieescak. 14

———

iv

TABLE OF CITED AUTHORITIES

Cases:

Albrecht v. State, 444 So.2d 8 (Fla. 1984) .......

Disher v. Information Resources, Inc., 873 F.2d 136

(7 Gl. Se i xb beh kaka ee

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) ...

Grayson v. K-Mart Corp., 79 F.3d 1086 (11" Cir.

SOE ho Giadckn eres ethno eee

Lake Lucerne Civic Ass'n Inc., v. Dolphin Stadium

Corp., 878 F.2d 1360 (11" Cir. 1989) .........

Lucas v. South Carolina Coastal Council, 505 U.S.

gk: er rere Opp ewer: era re

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ...

Steel Co. v. Citizens for a Better Environment, 523

Oi OP OND 6b a bean eucnwestaeaeveueas

Treister v. City of Miami, 893 F. Supp. 1057 (S.D.

Fla. 1992), aff'd, Case No. 95-5173 (May 15,

SO a FC is hs eee Sh esa eins

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985) .........

Wood v. Orange County, 715 F.2d 1543 (11" Cir.

SUED xe ac e404 ek eee debe oeensere

Page

9,10

13

Cited Authorities

Statutes:

oe AL. S PISO Bi ois SEALS AE ca

PU RAEI 6 HEEB HOS

Rule:

pupeanne Court Rite 15.86 65.5 oR AAS

Other Authorities:

Restatement (2d) of Judgments, § 27 (1982) .....

Restatement (2d) Judgments, § 87 (1982) ........

Page

10

13

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STATEMENT OF THE CASE

The arguments urged on this Court by the petition for

certiorari are the same as those urged below. They have been

rejected by every judge who has considered them: Chief

Judge Davis of the Southern District of Florida, a unanimous

panel of the Eleventh Circuit on the appeal, the same

unanimous panel of the Eleventh Circuit on petition for

rehearing, and every judge of the Eleventh Circuit on petition

for rehearing en banc. Indeed, no judge of the Eleventh

Circuit deemed the issues worthy of polling to decide whether

to rehear them en banc. App. 37.' There is no important issue

in this case that merits certiorari review by this Court.

A. Factual Background

The action below arose on a motion to dismiss by

petitioner-defendant Miami-Dade County (“Dade”), so that

the allegations of the complaint must be taken to be true.

The complaint alleged that in 1986 Dade sought out a

company to build a waste disposal plant and chose

respondent-plaintiff Agripost, Inc. (“Agripost”) to construct

one based on an innovative process. The risk of odors was

foreseen: a contract between Dade and Agripost provided

that if Dade’s Department of Environmental Resources

Management (“DERM”) determined that odors were coming

from Agripost’s plant, DERM was required to give Agripost

written notice and a reasonable opportunity to cure, and

Agripost then had to cure them. Dade’s petition for certiorari

(the “petition”) omitted reference to this contract provision,

an Omission we point out pursuant to our duty under Supreme

Court Rule 15.2. |

1. References to the petition will be designated by the prefix

“Pet.” and to the appendix of the petition by the prefix “App.”

2

Dade’s petition further omits to disclose that DERM gave

notice of the odors, that Agripost developed a plan to cure,

involving the retrofitting of equipment, and that DERM

approved the plan to cure and a timetable for action. Political

pressure grew because of the odors, and Dade officials

jettisoned Agripost’s contract right to have a reasonable

opportunity to cure before Agripost could implement the cure

in accordance with the plan and timetable approved by

DERM. Dade moved administratively to close the plant down

and did so without paying compensation. The complaint in

the case below alleged breach of contract as well as

uncompensated takings claims under Federal and Florida law.

B. The Florida State Court Proceeding To Review

' Dade’s Administrative Closing

The administrative proceeding and its judicial review

by a Florida three-judge court are described in the Eleventh

Circuit’s opinion, printed in the Appendix of the petition at

App. 1-18. The three-judge Florida court, whose opinion is

at App. 57-59, upheld the County’s exercise of its police

power under the applicable Florida standard for judicial

review of administrative decisions, substantial competent

evidence, and the plant was closed. App. 4-5.

The Eleventh Circuit found, on review of the record for |

that three-judge State court proceeding, that no claim for an

uncompensated taking had been raised before the three-judge

court and, as a matter of Florida law, none could have been

raised. (App. 13-15). To quote the Eleventh Circuit panel:

We conclude that the [Florida] Circuit Court did

not acknowledge, and therefore did not litigate,

Agripost's takings claim for two reasons. First,

3

the record is devoid of any indication that

Agripost presented such a claim to the Circuit

Court after the court affirmed the Board’s

revocation of Agripost’s permit. Specifically, we

find no allegation by Agripost to the effect that

its property had been rendered worthless and that

Florida provided no adequate process for

obtaining just compensation. Nor is there any

indication that the Circuit Court noticed a takings

claim on its own initiative and, having done so,

rejected it as legally insufficient.

Second, the Circuit Court lacked the authority to

determine the takings issue. The Circuit Court’s

task was limited to one question: whether the

Board’s revocation of Agripost’s permit was

justified. The court was not called upon to

determine whether there had been a Fifth

Amendment taking. A Fifth Amendment takings

claim could not have materialized until the

[Florida] Circuit Court passed on the propriety

of the Board’s revocation of Agripost’s permit.

See Lake Lucerne Civic Ass’n Inc., v. Dolphin

Stadium Corp., 878 F.2d 1360, 1370 (11% Cir.

1989) (“The point is that the propriety of the

agency action must be finally determined before

a claim for inverse condemnation exists”)

(quoting Albrecht v. State, 444 So.2d 8, 12 (Fla.

1984)).

App. 13-14 (emphasis added).

In the cases cited, Lake Lucerne held, following the

Florida Supreme Court in Albrecht v. State, that the takings

4

claim may only be brought after the conclusion of the

administrative proceeding and its judicial review. The Florida

Supreme Court said in Albrecht:

“the petitioners’ claim of uncompensated taking

constitutes a separate and distinct cause of action

from that litigated previously. In the first action

the petitioners were challenging the propriety of

the agency’s actions. The determination,

judicially or otherwise, that the action was proper

under the applicable statute does not necessarily

also determine that there is no taking, nor does it

necessarily bar the valid exercise of police

power.... In addition, the facts necessary to

maintain the taking action are different. There

must be a diminution in value of the property as

well as a lack of alternative uses. Under a

constitutionally valid statute providing for

protection of the public welfare, those facts are

irrelevant to the determination of propriety of the

agency action.”

444 So.2d at 12 (citation omitted).

The three-judge Florida court was also not a trial court

and thus not an appropriate forum for a trial of either the

takings claim or the breach of contract claim.

Dade flatly misstates both the Eleventh Circuit holding

and the record of the State court proceeding when, at Pet. 4,

it says that “the Florida court . . . reject[ed] Agripost’s taking

claims. .. .” Dade repeats this misstatement of the record in

Argument heading I B, Pet. 10, saying that “the State court

had held that no taking occurred.” The petition thus relies

heavily on a misstatement of the record below. Indeed,

without this misstatement of the record Dade has no Rooker-

Feldman point to urge on this Court.

5

Dade, furthermore, does not address either of the cases

cited by the Eleventh Circuit to show that the takings claim

could not have been raised before the three-judge court

reviewing Dade’s administrative decision. Dade does not

even cite these cases in its petition for certiorari. Nor does it

challenge the Eleventh Circuit’s opinion on the point. What

Dade does is simply to ignore what the Eleventh Circuit held

and, we regret to say, to misrepresent the record.

C. Consequences of the Plant Closing

When the plant was closed, Agripost lost its entire

investment, some $30 million. The banks which had loaned

it money to build the plant saw their loans turn uncollectible.

In addition, Agripost was a public company, with 20 million

shares outstanding; based on stock prices its equity was worth

as much as $100 million. Loss of the plant forced Agripost

into bankruptcy; there were no funds to pay creditors, and

the stockholders’ entire equity was wiped out. A plan of

reorganization under Chapter 11 preserved the right of the

company to bring this action for the benefit of creditors and

stockholders.

D. Federal Proceedings Below

Agripost sued Dade in the Federal District Court for the

Southern District of Florida, asserting, inter alia, Federal

and State inverse condemnation claims and breach of

contract. The State claims were brought under 28 U.S.C.

§ 1367 (supplemental jurisdiction) and 28 U.S.C. § 1334(b),

under the Court’s “related-to” jurisdiction over the case

because of the Chapter 11 reorganization plan.

6

Dade moved to dismiss with prejudice and for summary

judgment with prejudice on preclusion grounds: claim

preclusion (res judicata), issue preclusion (collateral

estoppel), and the Rooker-Feldman doctrine.

Chief Judge Edward Davis, finding no merit to any of

Dade’s preclusion motions, denied all of them, including the

Rooker-Feldman point, and denied Dade’s application for

dismissal with prejudice. He ruled sua sponte, however, that

the Federal takings claim could not be pursued in Federal

court until the State takings claim had been adjudicated in

Florida State court, following Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)

and a similar Eleventh Circuit case. He then exercised his

discretion not to accept supplemental or related-to

jurisdiction and dismissed the entire proceeding without

prejudice to renewal in the State court.

Agripost immediately refiled the case in Florida State

court. Since the plant had been closed in 1991, by that time

over six years had elapsed since the events complained of.

Dade appealed Judge Davis’s decision to the Eleventh

Circuit, though technically it had been the prevailing party,

and Dade then relied on its appeal to have the Florida court

stay further litigation on the merits until all Federal litigation

had ended. As a result, even though Dade thereafter lost its

appeal and two petitions for rehearing, it managed to prevent

plaintiff from litigating on the merits for another two and a

half years. In April of 2000, Dade further managed to have

the Florida stay continued pending this petition for certiorari,

so that the events of the case will be over nine years old

before discovery and litigation on the merits can begin.

7

A panel of the Eleventh Circuit unanimously denied

Dade’s appeal, holding that because the Florida three-judge

Court did not have Agripost’s takings claim before it, neither

the Rooker-Feldman doctrine applied nor was there claim

preclusion. (App. 14-16). As to issue preclusion, or collateral

estoppel, the Eleventh Circuit held, also on Florida law

grounds, that the issue Dade sought to preclude had not been

litigated or decided in the prior State court proceeding and

that there was thus no issue preclusion. |

Dade petitioned for rehearing, which was unanimously

denied. It petitioned for rehearing en banc. The Eleventh

Circuit held:

The Petition(s) for Rehearing are DENIED and

no member of this panel nor other Judge in

-regular active service on the Court having

requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the

Petition(s) for Rehearing En Banc are DENIED.

App. 37-38 (emphasis added).

Dade nevertheless brought this petition for certiorari,

on the basis of which it has persuaded the Florida court to

maintain its stay of litigation on the merits.

8

REASONS FOR DENYING THE WRIT

I. THERE IS NOTHING IN THIS CASE TO MERIT

SUPREME COURT REVIEW

First, Dade’s petition sets forth no issue that would

justify Supreme Court review. Preclusion issues arising from

a Florida State court proceeding are governed by the law of

the rendering court, i.e., by Florida law. See App. 9, n.11.

Florida law issues are not of national significance and do

not justify Supreme Court review.

Second, Dade’s Rooker-Feldman claim is based on a

misrepresentation of the record in the prior proceeding. The

Eleventh Circuit expressly held that no Florida court had

ever adjudicated Agripost’s takings claim or could have.

Dade sets forth no reason to show that holding was wrong

but ignores it, and writes as if the Florida state court had

adjudicated the takings claim. Pet. 4. Absent a prior State

court adjudication of an issue in the Federal case, Rooker-

Feldman does not apply.

The Federal case, moreover, has been dismissed without

prejudice, the Federal takings claim having been found

unripe, and the breach of contract claim dismissed in the

exercise of the District Court’s supplemental jurisdiction

discretion. Accordingly it would be improvident for this

Court to devote its scarce time to resolving an alleged

Rooker-Feldman issue when the case is in this posture.

9

Il. DADE’S EFFORT TO CREATE ILLUSORY

CONFLICTS

At pp. 6-7 of the petition, Dade asserts that the Eleventh

Circuit decision below has created conflicts with four

Supreme Court decisions. If this were true, it would be hard

to imagine a reason why no judge of the Eleventh Circuit

deemed the case worthy of even a vote on whether to undergo

further review. The answer is obvious: there are no such

conflicts.

The first case alleged to conflict, First English

Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304 (1987), held that State courts have the power to

strike down zoning actions that are confiscatory. Dade

invokes it at Pet. 6 and in point 1A, at 7-9, to try to make out

a Claim that pursuant to First English the Florida Court had

adjudicated a takings issue that thereafter was binding by

virtue of collateral estoppel, or issue preclusion.

The Eleventh Circuit mentioned First English at

App. 16-17, but in doing so held that, while certain zoning

actions are invalid under Florida law if they are confiscatory,

the rule applies only to zoning ordinances, and not to permit

denials and revocations constituting a proper exercise of

police power. As the Eleventh Circuit pointed out, the Florida

State court did not litigate the questions of whether Dade’s

administrative actions had rendered Agripost’s property

worthless or had effectively confiscated it. App. 17.

Thus there was no collateral estoppel, or issue preclusion.

This is a question of Florida law, not worthy of Supreme

Court review. For the reasons set forth in the Eleventh Circuit

opinion, App. 16-17, it is also a correct interpretation.

10

The three-judge Florida court was conducting a review of

an administrative decision under a substantial competent

evidence test, not litigating or adjudicating any issue of fact

under a preponderance of the evidence test. It was not a trial

court. First English is a red herring in this context; the

question for issue preclusion, or collateral estoppel, is what

issues were actually litigated and necessarily determined.

Restatement (2d) of Judgments, § 27 (1982). Dade’s public

policy issues argued at Pet. 7-9 are irrelevant. At best, they

should be addressed to the Florida legislature and not to this

Court.

The second doctrine that Dade claims to conflict is

Rooker-Feldman, which we discuss in point III below. As

previously noted, Dade has no genuine Rooker-Feldman

claim.

The third Supreme Court case invoked by petitioner is

Lucas v. South Carolina Coastal Council, 505 U.S. 1003

(1992). The Eleventh Circuit, however, cited Lucas only to

set forth the elements of a takings claim, and did not

otherwise construe or attempt to apply that case. Dade’s

attempt to contend that the Florida three-judge administrative

review court applied Lucas is also unfounded. There is no

mention of Lucas in the three-judge court’s decision. Nor

could there have been. Lucas was decided on June 29, 1992,

over three weeks after the three-judge court decision, which

was on June 5, 1992. App. 57.

The fourth Supreme Court case that Dade invokes is

Williamson County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172 (1985). Williamson provided the legal

basis on which this case was dismissed without prejudice as

unripe, but that issue was not before the Eleventh Circuit

and is not relevant here.

1]

In sum, petitioner listed Supreme Court cases referred

to in the Eleventh Circuit decision but has failed to show

that the Eleventh Circuit decision conflicted with any of

them.

III. PETITIONER’S DISCUSSION OF THE ROOKER-

FELDMAN DOCTRINE IS IRRELEVANT

The petition’s lengthy discussion of the Rooker-Feldman

doctrine, Pet. I B, 10-21, is premised on the incorrect

assumption that the Federal court below was asked te review

and reverse a State court adjudication of the takings claim.

See, e.g., argument heading for IB at Pet. 10. Since the

Eleventh Circuit held that there never was a State court

adjudication of the takings claim, nor could there have been,

App., 13-15, a holding unchallenged by petitioner Dade but

misrepresented, petitioner’s premise is false and its

discussion of Rooker-Feldman irrelevant.

Thus the “inextricably intertwined” doctrine of Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) does not apply

because there was no State court adjudication with which

the later Federal case could have been intertwined. The

question of whether the Eleventh Circuit improperly relied

on Wood v. Orange County, 715 F.2d 1543, 1547 (11% Cir.

1983) is irrelevant, since Wood was not mentioned in its

decision. Nor was a peculiar Eleventh Circuit “exception”

to Rooker-Feldman involved, as petitioner claims at Pet. 12.

Rooker-Feldman does not apply in any case unless there has

been a prior State court adjudication.

Similarly, the footnote at page 13 of the petition is

irrelevant. Whatever differences there may be between the

Eleventh and other Circuits as to the application of Rooker-

12

Feldman, no case holds that the doctrine applies to bar a

subsequent Federal action on a cause of action not previously

adjudicated by a State court.’

Finally, at Pet. 16-19, petitioner engages in a discussion

of why the Florida State court “had rejected Agripost’s taking

claims,” Pet. 16, in the teeth of the Eleventh Circuit’s express

holding that the Florida State court had no such takings claim

before it, could not have had such a claim before it, and had

made no such adjudication. The Florida cases cited by the

three-judge Florida opinion went to the question of whether

Dade’s administrative agencies had substantial competent

evidence before them to support administrative revocation

of Agripost’s permit, not to any takings claim, as the Eleventh

Circuit expressly found.

IV. BOTH THE ELEVENTH CIRCUIT AND THE

DISTRICT COURT HAD SUBJECT MATTER

JURISDICTION FOR THE RULINGS AT ISSUE

HERE

In Point II of the petition, Dade claims that the District

Court lacked subject matter jurisdiction to decide against it

the preclusion motions Dade itself had brought. Dade also

complains at Pet. 22 about the Eleventh Circuit’s jurisdiction

to rule that its preclusion rulings were binding for future

litigation because the Eleventh Circuit was the rendering

jurisdiction. App. 9, n.11. Both arguments are frivolous.

2. Petitioner's quote from Treister v. City of Miami, 893

F. Supp. 1057, 1067 (S.D. Fla. 1992), aff'd, Case No. 95-5173

(May 15, 1995) (unpublished), Pet. 15, n.10, is also irrelevant. While

a Federal takings claim and a State takings claim may be identical

for res judicata purposes, Rooker-Feldman does not apply when

neither claim has been adjudicated in a prior State court proceeding.

13

The Eleventh Circuit’s statement of which law governs

preclusion issues is hornbook law. See Restatement (2d)

Judgments, § 87 (1982). The Eleventh Circuit was

considering the future effect of the District Court’s preclusion

rulings in order to decide whether Dade, the technically

prevailing party below, could show it was aggrieved by the

judgment and had standing to appeal, under authorities cited

by the Eleventh Circuit at App. 8-10. In App. 9-10, n.11, the

Eleventh Circuit concluded that Dade would be bound by

the rendering District Court’s judgment, therefore was

aggrieved, and had standing to appeal. The issue had to be

decided before the appeal could be considered on the merits

and was therefore well within the Eleventh Circuit's

jurisdiction.

The District Court also unquestionably had subject

matter jurisdiction to decide the preclusion motions that Dade

presented to it. This case was unlike Steel Co. v. Citizens for

a Better Environment, 523 U.S. 83 (1998), where this Court

was dealing with a total absence of Article III jurisdiction.

Here the District Court had before it a complaint based on

Federal question jurisdiction, supplemental jurisdiction and

related-to bankruptcy jurisdiction. It had power to reject

Dade’s preclusion motions on the merits. Had it ruled for

Dade, its dismissal of the takings claim would not have been

without prejudice as unripe, but with prejudice as to

precluded claims and issues. Neither the decision that the

Federal claim was unripe nor the ultimate decision not to

exercise discretionary supplemental jurisdiction as to State

law claims served to oust the District Court retroactively of

all Article III subject matter jurisdiction. Cf. Disher v.

Information Resources, Inc., 873 F.2d 136 (7 Cir. 1989).

The Circuit Court then had the right to affirm or reverse Judge

Davis’s preclusion determination on the merits. Grayson v.

K-Mart Corp., 79 F.3d 1086, 1095, 10 (11" Cir. 1996).

Neither Court lacked subject matter jurisdiction.

14

CONCLUSION

The writ should not be granted.

Dated: June 16, 2000

Respectfully submitted,

SHELDON H. ELSEN

Counsel of Record

LesLie A. LUPERT

PETER ADELMAN

ORANS, ELSEN & LuPErRT LLP

One Rockefeller Plaza

New York, NY 10020

(212) 586-2211

JosEPH W. BEASLEY

JOSEPHS, JACK & GAEBE

Grove Professional Building

Suite 100

2950 S.W. 27" Avenue

Miami, FL 33133-3765

(305) 445-3800

Attorneys for Respondents