United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2009 Decided February 26, 2010

No. 09-7035

ROSE RUMBER, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA AND NATIONAL CAPITAL

REVITALIZATION CORPORATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-01170-RMU)

Elaine Mittleman argued the cause and filed the briefs for

appellants.

Carl J. Schifferle, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellees. With him on the brief were Peter J. Nickles,

Attorney General, Todd S. Kim, Solicitor General, and Donna

M. Murasky, Deputy Solicitor General.

Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH,

Senior Circuit Judges.
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Opinion for the Court filed PER CURIAM. 

PER CURIAM: Seventeen plaintiffs brought suit to prevent

the District of Columbia from acquiring a shopping center by

eminent domain. Because only four of the plaintiffs own or

lease properties in the shopping center, and those four are

litigating this matter in the District of Columbia’s court system,

we affirm the district court’s dismissal of the case.

* * *

The Skyland Shopping Center is located at the junction of

Alabama Avenue, Good Hope Road, and Naylor Road in

Southeast Washington, D.C. According to findings of the

District of Columbia Council, the shopping center is in disrepair,

is underutilized, contributes to crime, is an eyesore, presents

traffic hazards, does not provide quality shopping, and is a

“blighting factor” in the neighborhood. See National Capital

Revitalization Corporation Eminent Domain Clarification and

Skyland Eminent Domain Approval Amendment Act, D.C. Law

15-286, 52 D.C. Reg. 859 (2004) (the “Skyland Act”). In 2004,

the Council authorized the National Capital Revitalization

Corporation – a District agency – to acquire the properties

comprising the shopping center by purchase or eminent domain.

The District planned to transfer the land to a private company

that would redevelop the area into a better shopping center with

the attendant public benefits of increased revenue, jobs, and high

quality shopping. 

Plaintiffs are current and former Skyland property owners,

tenants, and employees who oppose the District’s plan. They

brought suit in federal court shortly after the Council passed the

Skyland Act, alleging that the proposed takings were intended

to benefit the private developer rather than the public and thus

violated the Takings Clause of the Fifth Amendment. They
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1 These plaintiffs argue that the complaint also includes claims for

compensatory damages, which are not capable of being moot. See

People for Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d

sought a judgment declaring the Act unconstitutional and

enjoining the District from exercising eminent domain to acquire

the shopping center. They also requested damages. After the

district court denied plaintiffs’ motion for a preliminary

injunction, the District initiated a series of condemnation

proceedings in the District of Columbia Superior Court against

Skyland parcels. One of these proceedings was brought against

property owned by plaintiff Duk Hea Oh; another was brought

against property owned by plaintiff Peter DeSilva and leased by

plaintiffs Joseph and Rose Rumber. In light of these

proceedings, the district court dismissed the claims of Oh,

DeSilva, and the Rumbers under the principle of abstention

articulated in Younger v. Harris, 401 U.S. 37 (1971). The court

dismissed as moot the claims of three other plaintiffs (Graham

Fields, Verna Fields, and Ingak Lee) who had sold their property

to the District. As to the remaining plaintiffs, the court granted

summary judgment in the District’s favor, finding that the

District passed the Skyland Act to further a public purpose and

therefore the Act did not violate the Takings Clause.

All seventeen plaintiffs now appeal, but thirteen plaintiffs’

claims are barred by the doctrines of mootness or standing. Four

plaintiffs (Graham Fields, Verna Fields, Ingak Lee, and In Suk

Baik) sold their property to the District and three others (Marion

Fletcher, Hartej Singh, and Muneer Choudhury) are former

leaseholders whose leases expired or terminated without being

condemned. These plaintiffs have “nothing to gain” from an

injunction against the use of eminent domain or a judgment

declaring the Skyland Act unconstitutional; their claims are

therefore moot. See Taylor v. Resolution Trust Corp., 56 F.3d

1497, 1502 (D.C. Cir. 1995).1

 Three other plaintiffs (Quval Le,
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416, 425 (D.C. Cir. 2005). Because no property has been taken from

these plaintiffs, however, we see no basis on which they may collect

damages.

2 In supplemental briefing, the District provided us with these

license agreements. Each agreement contains a clause releasing the

District “from and against any and all actions, causes of action, suits,

debts, contracts, claims and/or demands pertaining to or arising from

Licensee’s occupancy of the Premises prior to the date hereto.”

Plaintiff Baik also signed a similar license agreement, with an

identical release clause, after selling his property to the District.

Moon Kim, and Son Cha Kang) are also former leaseholders

whose leases are no longer in effect. They argue that their

claims are not moot because the District, having acquired the

property that they previously leased, allows them to continue to

operate their businesses under month-to-month license

agreements.2 But because the District will not need to use the

eminent domain power when it wishes these plaintiffs to vacate,

their claims are moot as well.

Three other plaintiffs lack standing because they do not

hold property interests in the shopping center. Plaintiffs Ling

Chen and Boubaker Ben Salah are or were employees of

businesses operating at the shopping center, and plaintiff

Mukhtar Ahmadi holds an unspecified ownership stake in a

business that leases a store at the shopping center. A plaintiff

must ordinarily “assert his own legal interests, rather than those

of third parties.” Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91, 100 (1979); Goodman v. FCC, 182 F.3d 987, 992

(D.C. Cir. 1999). A plaintiff may assert the rights of a third

party only when there is “some hindrance to the third party's

ability to protect his or her own interests,” Goodman, 182 F.3d

at 992 (quoting Powers v. Ohio, 499 U.S. 400, 411 (1991)). The

property-owning businesses, not their employees or

stakeholders, are the proper parties to bring suit opposing
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condemnation.

That brings us to the district court’s decision to abstain

under Younger with respect to the claims of the four

condemnees. The Younger principle, as it has been shaped by

a series of Supreme Court precedents, is that a federal court

should not enjoin or declare illegal a pending state proceeding

that is judicial in nature and involves important state interests,

JMM Corp. v. District of Columbia, 378 F.3d 1117, 1120 (D.C.

Cir. 2004), assuming that the state proceeding is “the type of

proceeding to which Younger applies,” Act Now to Stop War and

End Racism Coalition v. District of Columbia, 589 F.3d 433,

436 (D.C. Cir. 2009) (quoting New Orleans Pub. Serv., Inc. v.

Council of the City of New Orleans, 491 U.S. 348, 367–68

(1989)). The condemnees do not dispute that the general rule of

Younger applies here, but rather argue that they fall within either

of two exceptions to Younger. A federal court should not

abstain if the federal plaintiff does not have a “full and fair

opportunity to litigate” his constitutional claims in the state

proceedings, id. (quoting Ohio Civil Rights Comm'n v. Dayton

Christian Sch., Inc., 477 U.S. 619, 627 (1986)) or if there is a

showing of “bad faith” by the officials bringing the state

proceedings, see Trainor v. Hernandez, 431 U.S. 434, 442 n.7

(1977) (citing Younger, 401 U.S. at 54). Neither exception

applies. 

The condemnees claim that the Superior Court deprived

them of a fair litigation opportunity by ruling – in both

condemnation actions – that the condemnees forfeited their

constitutional defenses by failing to plead them. The

condemnees did not provide, either to this court or the district

court, copies of the relevant Superior Court pleadings or the

forfeiture rulings. Nor did their briefs explain the rulings in any

detail, leaving us unable to evaluate their fairness. But it does

not matter anyway, because, as these plaintiffs acknowledge, the
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District of Columbia Court of Appeals shortly thereafter issued

an opinion in a similarly-situated Skyland condemnation case

that overturned those forfeiture rulings. See Franco v. Nat’l

Capital Revitalization Corp., 930 A.2d 160, 166–70 (2007).

Indeed, in the DeSilva/Rumber case, the Superior Court took

note of the Franco decision, reversed its forfeiture ruling, and

rejected the public use argument on the merits. We have no idea

what happened in the Oh case after the Franco ruling because

the briefs are silent on this matter as well. It was Oh’s

obligation to bring the Franco opinion to the Superior Court’s

attention in a motion for reconsideration, and, in the absence of

any indication that she has done so, we do not simply assume

that the Superior Court would have rebuffed her. See Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 15–16 (1987). In short, we have

no basis on which to believe that any of the condemnees were

deprived of a fair opportunity to raise their constitutional

defenses in Superior Court.

As to “bad faith,” the Rumbers complain that the District

did not join them as defendants in the DeSilva condemnation

action for approximately two years after the District filed the

condemnation complaint. This was bad faith, according to the

Rumbers, because Superior Court rules require immediate

joinder of all parties known to hold property interests. See

Super. Ct. Civ. R. 71A(c)(2). The Rumbers accuse the District

of knowing of their leasehold interest at the time of the initiation

of the condemnation suit and deliberately delaying joining them

as defendants. We cannot help but wonder what possible

advantage the District hoped to gain through this strategy, or

how the delay has prejudiced the Rumbers. The Rumbers were

obviously on notice of the condemnation action because they

have been suing to enjoin it since it began. We therefore agree

with the district court that there was no bad faith.
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3 For example, plaintiffs never argued that abstention was

unwarranted with respect to the Rumbers because “proceedings of

substance on the merits ha[d] taken place in the federal court” before

the District joined the Rumbers in the DeSilva condemnation suit. See

Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984). Had

plaintiffs done so, the District presumably would have responded that

the Rumbers’ interests were sufficiently intertwined with DeSilva’s

such that their late joinder would not be a bar to abstention. See Hicks

v. Miranda, 422 U.S. 322, 348–49 (1975); Doran v. Salem Inn, Inc.,

422 U.S. 922, 928–29 (1975). Nor did plaintiffs argue that

condemnation is not “the type of proceeding to which Younger

applies.” Act Now to Stop War and End Racism Coalition, 589 F.3d

at 436.

Though we imagine that plaintiffs could have raised other

arguments against abstention,3 we follow our usual practice of

declining to reverse the district court based on arguments that

the appellant did not raise. See Doe v. District of Columbia, 93

F.3d 861, 875 n.14 (D.C. Cir. 1996) (per curiam). Accordingly,

we affirm the district court’s dismissal of plaintiffs’ Fifth

Amendment claims. We also affirm the court’s disposition of

plaintiffs’ contract and Uniform Relocation Assistance Act

claims, which are so clearly meritless that they do not warrant

discussion.

Affirmed.