Killing The Messenger?
Day Three: Georgetown

Special Rules for Takings Claims?

Although the general rule in cases arising under 42 U.S.C. Section 1983 is that a plaintiff need not exhaust administrative remedies before turning to the Courts for relief, there is an exception in the case of takings claims. The exception makes little sense.

Patsy v. Board of Regents, 457 U.S. 496 (1982) held that exhaustion is not required in 1983 claims. Yet three years after the Patsy holding, the Supreme Court decided Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Williamson requires a plaintiff to obtain a final decision about the property in question from the government agency implementing the relevant regulations. A plaintiff must also pursue "reasonable, certain. and adequate" procedures for obtaining just compensation. Id., at 194. In the Second Circuit, that means a plaintiff may well be required to seek a state court remedy even where the remedy remains "unsure and developed." Villager Pond, Inc. v. Darien, 56 F.3d 375, 380 (2d Cir. 1995).

The Williamson court notes that it is not requiring exhaustion at all. It merely holds that a claim is not ripe until these preliminary steps are taken.

A recent Connecticut case illustrates how odd the ripeness doctrine looks in a 1983 claim alleging an unlawful taking. A plaintiff alleged that she was promised credit toward a degree if she did web design for a professor. The student did the work, but the credit wasn't given. She sued, alleging, among other things, a taking. The District Court granted summary judgment after denying a motion to dismiss. The court held that because the plaintiff can state a claim in state court for a taking under the state constitution, the matter was not ripe for federal adjudication. Leone v. Whitford, et al, 3:05cv823 (JCH).

This seems like an unusual application of Williamson. No regulatory provision seems to govern a taking of this sort. Indeed, the taking is akin to common-law theft of services. And in the absence of any claim of such a regulatory scheme, it seems ad hoc to require plaintiffs to first sue in state court. This effectively closes the doors of the federal court house to plaintiffs who lose in a state court action. Should the plaintiff lose in state court her claim will be res judicata in the federal court.

The Leone case is one of mine. I would appreciate comments from 1983 practitioners on law review articles and similar cases as I evaluate the merits of an appeal.