Berry v. Jefferson Parish , 326 F. App'x 748 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2009
No. 08-30614 Charles R. Fulbruge III
Clerk
RICHARD BERRY; THELMA BERRY
Plaintiffs-Appellants
v.
JEFFERSON PARISH
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-cv-6551
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jefferson Parish re-zoned a piece of property owned by Thelma and
Richard Berry. The Berrys then sued Jefferson Parish for (1) discriminatory
zoning and (2) compensation for a taking under the Fifth Amendment. The
Berrys allege that Jefferson Parish changed the zoning of their property to
prevent a Christian-affiliated developer from building housing for minorities, the
elderly, and the disabled. The Berrys seek damages and to enjoin this zoning
under § 1983, the Americans With Disabilities Act (“ADA”), the Fair Housing Act
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30614
(“FHA”), and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). The district court dismissed the Berrys’ suit for lack of jurisdiction,
and the Berrys now appeal. For the following reasons, we affirm.
We can easily address two of the Berrys’ claims. First, the district court
correctly determined that it lacked jurisdiction to address the Berrys’ taking
claim. The Berrys are currently pursuing this claim in state court, and it is
consequently not ripe for federal adjudication until after these state proceedings.
See Urban Developers LLC v. City of Jackson, 468 F.3d 281, 294–95 (5th Cir.
2006). Second, the Berrys have not briefed the district court’s determination
that they lacked standing to bring their ADA claim. An unbriefed argument is
an unpreserved argument, see F ED. R. A PP. P. 28(a)(9)(A), and the Berrys have
waived their ADA claim by failing to brief it.
Resolution of the remaining claims turns on whether the Berrys have
standing to bring them. To have standing to bring their § 1983, FHA, and
RLUIPA claims, the Berrys must—at the very least—assert an injury that is
fairly traceable to Jefferson Parish’s actions and that is likely to be redressed by
a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
Where applicable, the Berrys must also satisfy prudential standing
requirements, including the general prohibition on raising the rights of third
parties. See Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Powers v. Ohio,
499 U.S. 400, 411 (1991) (enumerating the requirements for third-party
standing). We agree with the district court that the Berrys lack standing to
bring these claims, but only on the basis that the Berrys have not adequately
asserted the requisite elements of standing to bring each of these claims. See
Lujan, 504 U.S. at 561 (1992) (“The party invoking federal jurisdiction bears the
burden of establishing [the elements of standing].”).
As to the Berrys’ § 1983 claim, they assert a violation of third parties’
constitutional rights. The Berrys have not argued, however, that they have a
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close relation to these aggrieved third parties or that there is something
hindering these third parties from bringing suit on their own behalf, as required
for third-party standing. And although the Berrys suggest that their claim
alleges the deprivation of their own constitutional rights, we find their argument
on this point inadequate. The Berrys have therefore failed to meet their burden
of proving subject-matter jurisdiction over their § 1983 claim.
Unlike § 1983, Congress eliminated all prudential inquiries relating to
standing under the FHA. See Lincoln v. Case, 340 F.3d 283, 289 (5th Cir. 2003).
Thus, to have standing to bring their FHA claim, the Berrys need only satisfy
the bare minima of Article III—injury, causation, and redressability. Although
landowners in a position like that of the Berrys might have standing to bring an
FHA claim, see, e.g., San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470,
475 (9th Cir. 1998), the Berrys have not asserted an injury that would give them
standing to bring an FHA claim. The injury on which they focus—the
breakdown of the planned sale of their land to certain specific buyers—is
speculative at this stage because of a separate suit in which the Berrys seek the
benefit of that sale. As the district court pointed out, the Berrys have a pending
state court proceeding in which they argue that the developer should be required
to honor the contract and pay for the land. The buyers claim the Berrys
breached their obligations under the contract. Until that dispute is resolved,
there is no possibility of showing damage under the FHA. Moreover, no other
injury recognized under the FHA has been asserted. The Berrys have therefore
failed to meet their burden of proving subject-matter jurisdiction over their FHA
claim.
Finally, as to the Berrys’ RLUIPA claim, it is unclear whether the Berrys
are attempting to assert their own rights or the rights of third parties. But in
either event, they have failed to assert the requisite elements of standing. If the
Berrys are asserting the rights of third parties, there is again no argument that
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they have a close relation to these aggrieved third parties or that there is
something hindering these third parties from bringing suit on their own behalf.
Moreover, assuming that prudential standing requirements do not apply to
standing under the RLUIPA,1 the Berrys’ RLUIPA claim fails for the same
reason as their FHA claim. That is, they have not asserted an injury that would
give them standing to bring an RLUIPA claim. The Berrys have therefore failed
to meet their burden of proving subject-matter jurisdiction over their RLUIPA
claim.
In sum, the Berrys have not adequately asserted that they have standing
to bring their § 1983, FHA, and RLUIPA claims.2
AFFIRMED.
1
Because it is irrelevant to our ultimate conclusion, we express no opinion on whether
prudential standing requirements apply to RLUIPA claims.
2
We emphasize that this holding is limited to the showing made by the Berrys and in
no way suggests that a party in a similar condition can never have standing to bring such
claims.
4