John Corp. v. City of Houston

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-20010
_____________________

THE JOHN CORPORATION; US VANGUARD LTD INC,

Plaintiffs - Appellants

v.

THE CITY OF HOUSTON; CHERRY MOVING COMPANY INC,
doing business as Cherry Demolition

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
June 12, 2000

Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

KING, Chief Judge:

Plaintiffs-Appellants The John Corporation and U.S.

Vanguard, Limited, Inc. appeal from the district court’s judgment

dismissing without prejudice their claims against the City of

Houston and Cherry Moving Company, Inc., arguing that the lower

court erred in finding that each of their federal claims is

either unripe or frivolous. Although we agree that an Eighth

Amendment claim is frivolous and that the takings claim is

unripe, we conclude that other claims are ripe, and therefore

reverse in part and remand for further proceedings.
 I. FACTUAL AND PROCEDURAL BACKGROUND

In 1995, Van Ngoc Pham, president of The John Corporation,

executed an earnest money contract with Winkler Investment Group

to purchase an apartment complex for $1.9 million. The complex

included fifty-three apartment buildings, six utility buildings,

and a mailroom. Four years prior to Pham’s purchase, the City of

Houston (“the City”) had issued demolition orders covering the

apartment buildings.

Pham discussed a rehabilitation plan with the City. He

executed a Bond Agreement with the City that set forth the

conditions under which he would be allowed to rehabilitate the

buildings, and posted a $70,000 bond to secure building permits.

According to the complaint, renovation efforts were immediately

undertaken, but were thwarted by a number of actions on the

City’s part. Those actions included ordering the eviction of all

tenants, and thereby restricting an income stream; refusing,

after issuing a number of occupancy permits for renovated

buildings, to issue further permits; and placing a hold on

temporary electrical permits, thereby thwarting efforts to repair

three buildings damaged by fire in June 1996. The City is also

described as issuing a number of citations against The John

Corporation for violations of ordinances after a broken water

line was discovered and reported, and not removing those

citations after it was determined that water line was on City

property and the City was obligated to repair it. The City did

2
not extend the time available for obtaining permits to compensate

for the City’s refusal to issue permits while the water line

remained unrepaired. In addition, the City is said to have filed

liens and otherwise billed The John Corporation for work

allegedly done by contractors and city officials. Finally,

during the summer of 1997, Cherry Moving Company (“Cherry

Moving”) demolished forty-one apartment buildings and portions of

the fence surrounding the property.

The John Corporation, U.S. Vanguard Limited, Inc., and Pham

filed suit in state court against the Winkler Investment Group,

the City, and Cherry Moving, asserting violations of due process

and equal protection rights under the Fifth, Eighth, and

Fourteenth Amendments to the U.S. Constitution and violations of

Texas state law and the Texas Constitution. The claims against

the Winkler Investment Group were severed and tried. The

plaintiffs subsequently moved to non-suit the City and Cherry

Moving. Shortly thereafter, on May 29, 1998, The John

Corporation and U.S. Vanguard (“Appellants”) filed this action in

the United States District Court for the Southern District of

Texas under 42 U.S.C. § 1983. Their complaint, in addition to

stating state-law claims of breach of contract, fraud, and

misrepresentation, asserts that the City and Cherry Moving

violated their rights under the Fifth, Eighth, and Fourteenth

Amendments of the U.S. Constitution, and seeks actual and

punitive damages, interest, and attorney fees. The complaint

3
filed in federal court asserts claims generally similar to those

filed in state court, but adds allegations that the City

demolished the property “without a public purpose and without

just compensation in violation of the Fifth Amendment” and that

the demolition was undertaken in violation of an injunction. On

September 4, the City filed a motion to remand, and Cherry Moving

filed a motion to dismiss for lack of subject-matter

jurisdiction. Construing the City’s motion as a motion to

dismiss for lack of subject-matter jurisdiction, the court

granted both motions and dismissed the claims without prejudice

to refiling in the appropriate state court. The two corporations

timely appeal.

II. STANDARD OF REVIEW

We review a district court’s grant of a motion to dismiss

for lack of subject-matter jurisdiction de novo, using the same

standards as those employed by the lower court. See Rodriguez v.

Texas Comm’n on the Arts, 199 F.3d 279, 280 (5th Cir. 2000); EP

Operating Ltd. Partnership v. Placid Oil Co., 26 F.3d 563, 566

(5th Cir. 1994). We must take as true all of the complaint’s

uncontroverted factual allegations, see Saraw Partnership v.

United States, 67 F.3d 567, 569 (5th Cir. 1995), and will affirm

the dismissal if “‘the court lacks the statutory or

constitutional power to adjudicate the case.’” Home Builders

Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006,

4
1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6

Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).

Appellants assert jurisdiction under 28 U.S.C. § 1331. As

the Supreme Court recently has reaffirmed, in federal question

cases,

the District Court has jurisdiction if “the right of
the petitioners to recover under their complaint will
be sustained if the Constitution and laws of the United
States are given one construction and will be defeated
if they are given another” unless the claim “clearly
appears to be immaterial and made solely for the
purpose of obtaining jurisdiction or where such a claim
is wholly insubstantial and frivolous.”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)

(quoting Bell v. Hood, 327 U.S. 678, 682-83, 685 (1946)).

Appellants have the burden of demonstrating that the federal

court has subject-matter jurisdiction. See Stockman v. Federal

Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).

III. THE COMPLAINT

In their complaint, Appellants allege that the City, in

undertaking a course of conduct that thwarted their attempts to

renovate their property and that culminated in the destruction of

forty-one buildings, violated rights guaranteed by the Fifth,

Eighth, and Fourteenth Amendments to the U.S. Constitution. The

district court dismissed the Eighth Amendment claim, finding it

frivolous. It interpreted the gravamen of Appellants’ complaint

as asserting a takings claim, and because Appellants had not used

5
state-provided procedures to attempt to obtain just compensation

as required under Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the court

declared that claim to be unripe. Relying principally on Graham

v. Connor, 490 U.S. 386 (1989), the district court also dismissed

the Appellants’ due process1 and their equal protection claims,

finding that those claims were subsumed into the more

particularized takings claim. Thus, at issue is whether the

district court properly dismissed each of the Appellants’ claims.

In order to resolve this issue, we must be clear on what the

complaint alleges, for the “first step in any [§ 1983] claim is

to identify the specific constitutional right allegedly

infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing

Graham, 490 U.S. at 394); see also County of Sacramento v. Lewis,

523 U.S. 833, 841 n.5 (1998); Baker v. McCollan, 443 U.S. 137,

140 (1979) (noting the need “to isolate the precise

constitutional violation with which [the defendant] is charged”

in § 1983 cases). Individuals may look to several constitutional

provisions for protection against state action that results in a

deprivation of their property. The Fourteenth Amendment

guarantees that individuals are not to be deprived of their

property without due process of law, a protection that has been

1
It is unclear whether the court viewed the due process
claims as claims that Appellants’ procedural due process rights
or substantive due process rights were violated, or viewed the
complaint as raising both types of claims.

6
viewed as guaranteeing procedural due process and substantive due

process. Procedural due process promotes fairness in government

decisions “[b]y requiring the government to follow appropriate

procedures when its agents decide to ‘deprive any person of life,

liberty, or property.’” Daniels v. Williams, 474 U.S. 327, 331

(1986). Substantive due process, “by barring certain government

actions regardless of the fairness of the procedures used to

implement them, [] serves to prevent governmental power from

being ‘used for purposes of oppression.’” Id. (quoting Murray’s

Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272

(1856)). The Equal Protection Clause protects individuals from

governmental action that works to treat similarly situated

individuals differently.2 See City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985); Rolf v. City of San

Antonio, 77 F.3d 823, 828 (5th Cir. 1996); Samaad v. City of

Dallas, 940 F.2d 925, 941 (5th Cir. 1991).

Other protections exist through incorporation.3 For

example, because principles embodied in the Takings Clause of the

2
Unlike the Due Process Clause, the Equal Protection
Clause does not require that the governmental action work a
deprivation of a constitutionally protected property or liberty
interest. See Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.
1988).
3
As we explained in Brennan,“[o]ne form of ‘substantive
due process’ is the substantive protections in the Bill of Rights
that have been ‘incorporated’ into the Fourteenth Amendment to
limit the power of the States.” 834 F.2d at 1255. Thus, rights
protected via incorporation are technically part of the
Fourteenth Amendment’s substantive due process protection.

7
Fifth Amendment have been incorporated into the Fourteenth

Amendment, see Samaad, 940 F.2d at 933, individuals are also

granted the right to receive “just compensation” if the state

takes their property for public use. Finally, the Fourth

Amendment protects individuals against unreasonable seizures of

property. See United States v. James Daniel Good Real Property,

510 U.S. 43 (1993); Soldal v. Cook County, Ill., 506 U.S. 56, 61-

63 (1992); Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996);

Hroch v. City of Omaha, 4 F.3d 693 (8th Cir. 1993); Conner v.

City of Santa Ana, 897 F.2d 1487 (9th Cir.), cert. denied, 498

U.S. 816 (1990).

Appellants assert that (1) after requiring that Pham put up

a $70,000 bond and become a party to a Bond Agreement as a

condition for obtaining permits needed for renovation, the City

undertook a sequence of actions that impeded or halted progress

on Appellants’ renovation efforts; (2) a 1991 demolition order

issued to the Winkler Investment Group was based on an

unconstitutionally vague and overbroad statute; (3) the City is

estopped from relying on the 1991 order to justify its demolition

of buildings in 1997; (4) the City’s “Dangerous Building

Ordinance” is unconstitutional, and the City continued to

demolish buildings after August 5, 1997, in violation of an

injunction against enforcement of relevant sections of an

8
ordinance found unconstitutionally vague on its face;4 (5) the

City demolished buildings that were at least partially renovated

or previously had been issued occupancy permits; and (6) the

Appellants were not provided due process before the destruction

and were not personally issued a demolition order. These

allegations form the basis of Appellants’ claims that the City

destroyed their property “without public purpose and without

compensation in violation of the Fifth Amendment,” that they were

denied their “rights to due process of law and equal protection

of law . . . as guaranteed under the Fifth, Eighth and Fourteenth

Amendments,” that the City’s actions “constituted a denial of

fundamental fairness in government decision making in violation

of the Fourteenth Amendment,” and that the City “engaged in

discriminatory practices against Plaintiffs in the methods by

which it [chose] to enforce [the CURB] Ordinance.”

4
In a single paragraph, Appellants refer both to a
“Dangerous Building Ordinance” and to the Comprehensive Urban
Rehabilitation and Building Minimum Standards (“CURB”) Ordinance.
We assume that these labels refer to a single ordinance.
Appellants do not specify which sections of the CURB Ordinance
were found unconstitutional, which clause of the U.S.
Constitution the Ordinance allegedly violates, or which sections
of the Ordinance were deemed to be applicable to Appellants’
property. The CURB Ordinance was enacted in 1993, so that
ordinance could not have been the basis for the 1991 demolition
order. The injunction referenced in the complaint was issued by
a judge hearing claims that included allegations that CURB
Ordinance was unconstitutionally vague and overbroad, both
facially and as applied. See City of Houston v. Yetiv, No.
9459707 (Tex. App. Oct. 20, 1997) (unpublished).

9
 Appellants argue strenuously that their claims do not

include a takings claim because they nowhere allege that the City

used its power of eminent domain to take property for public

use.5 Instead, Appellants assert that the City relied on its

police powers to destroy their property. Such a distinction

between the use of police powers and of eminent domain power,

however, cannot carry the day. The Supreme Court’s entire

“regulatory takings” law is premised on the notion that a city’s

exercise of its police powers can go too far, and if it does,

there has been a taking. See Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 415 (1922) (“The general rule at least is, that while

property may be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking.”); see also Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992) (examining

under the Takings Clause a challenge to state law that rendered

plaintiff’s property valueless).6 Moreover, as the Supreme Court

5
Appellants also argue that they do not assert a takings
claim because “the City did not ‘take’ the Winkler Apartments and
put them to public use. It simply tore them down . . . .” To the
extent that this argument rests on a notion that a governmental
entity must appropriate property and put it to use for the
general public in order for the government’s action to be a
taking under the Fifth Amendment, it must be rejected. See,
e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984)
(“This Court . . . has rejected the notion that a use is a public
use only if the property is put to use for the general public.”);
see also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 243-44
(1984); Rindge Co. v. Los Angeles, 262 U.S. 700, 707 (1923).
6
Within the “due process” theory described in Williamson
County, exercises of police power that go “too far” are
violations of the Due Process Clause, not the Takings Clause.

10
has noted, “[w]hile the typical taking occurs when the government

acts to condemn property in the exercise of its power of eminent

domain, the entire doctrine of inverse condemnation is predicated

on the proposition that a taking may occur without such formal

proceedings.” First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 316 (1987). Thus, simply

because the City did not formally use its powers of eminent

domain to destroy Appellants’ property does not mean that its

actions could not amount to a taking requiring just compensation.

We consider it telling that the complaint alleges in a

paragraph that does not mention the Fourteenth Amendment or due

process that the destruction of the buildings was in violation of

the Fifth Amendment as it was not for a public purpose and was

done without just compensation.7 Thus, whether Appellants now

wish to relabel their allegation as a substantive due process

The Williamson County court declined to consider the merits of
that theory. See Williamson County, 473 U.S. at 199 (“We need
not pass upon the merits of petitioners’ arguments . . . .”).
However, the decision in Lucas would appear to make questionable
the theory’s viability. See Villas of Lake Jackson, Ltd. v. Leon
County, 121 F.3d 610, 613-14 (11th Cir. 1997) (“Lucas and First
English confirm that ‘goes too far’ means so far that the
regulation constitutes a Takings Clause taking under one of the
various standards set forth in recent Supreme Court decisions,
not a substantive due process violation.”).
7
The same actions are alleged to be in violation of
Article 1, Section 17 of the Texas Constitution. That section
provides that “No person’s property shall be taken, damaged or
destroyed for or applied to public use without adequate
compensation being made, unless by the consent of such person . .
. .” TEX. CONST. of 1876, art. I, § 17 (West 1997).

11
allegation is immaterial8 — their complaint asserts a violation

of a right arguably protected by the Fifth Amendment’s Takings

Clause.9 We therefore conclude that the complaint includes a

takings claim. We also identify claims that the City violated

8
Appellants’ complaint labels their basic claim as a
“wrongful taking” claim.
9
Appellants assert that the government’s action was
“without public purpose.” As we have noted previously, the
question of whether governmental action undertaken without
authority, e.g., a taking of private property for private use, is
properly considered a violation of the Takings Clause or the Due
Process Clause (or both) has not been definitively answered. See
Samaad, 940 F.2d at 936 n.26. Five Justices recently suggested
that the Takings Clause presupposes legitimate government action,
see Eastern Enters. v. Apfel, 524 U.S. 498, 545 (1998) (Kennedy,
J., concurring in judgment and dissenting in part) (“The
[Takings] Clause presupposes what the government intends to do is
otherwise constitutional . . . .”); id. at 554 (Breyer, J.,
dissenting) (“As [the Takings Clause] language suggests, at the
heart of the Clause lies a concern, not with preventing arbitrary
or unfair government action, but with providing compensation for
legitimate government action that takes ‘private property’ to
serve the ‘public’ good.”). Other references to the Takings
Clause presupposing otherwise legitimate government action also
appear. See, e.g., First English, 482 U.S. at 315 (“This basic
understanding of the Amendment makes clear that it is designed
not to limit the governmental interference with property rights
per se, but rather to secure compensation in the event of
otherwise proper interference amounting to a taking.”). However,
language inserting principles of due process into takings
jurisprudence is also quite common. See, e.g., Apfel, 524 U.S.
at 537 (plurality opinion) (O’Connor, J.) (concluding that “the
governmental action [at issue in the case] implicates fundamental
principles of fairness underlying the Takings Clause.”); Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980) (holding that a zoning
ordinance constitutes a taking if it does not “substantially
advance a legitimate government interest”). We do not regard the
initial consideration of subject-matter jurisdiction as the
appropriate stage at which to decide the knotty issue of the
proper “home” for Appellants’ claim and are instead guided by the
language they chose to use in their complaint.

12
Appellants’ equal protection, due process, and Eighth Amendment

rights.

IV. SUBSTANTIAL CLAIMS

Simply because Appellants’ complaint states these claims,

however, does not lead to the conclusion that the lower court had

subject-matter jurisdiction. As we noted above, in order to

invoke a federal court’s jurisdiction, claims cannot be

“‘obviously without merit’” or “‘clearly foreclosed by the

previous decisions of the United States Supreme Court.’”

Holland/Blue Streak v. Barthelemy, 849 F.2d 987, 989 (5th Cir.

1988) (per curiam) (quoting Walsh v. Louisiana High School

Athletic Ass’n, 616 F.2d 152, 156 (5th Cir. 1980)); see also Ex

Parte Poresky, 290 U.S. 30, 32 (1933) (per curiam) (“The question

may be plainly unsubstantial, either because it is ‘obviously

without merit’ or because ‘its unsoundness so clearly results

from the previous decisions of this court as to foreclose the

subject and leave no room for the inference that the question

sought to be raised can be the subject of controversy.’” (quoting

Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933))).

The district court found Appellants’ Eighth Amendment claim

frivolous, and therefore dismissed it.

Based on the facts alleged and the context of this case, we

agree with the lower court that the Eighth Amendment claim is

frivolous. Appellants argue that the Supreme Court’s decision in

13
Austin v. United States, 509 U.S. 602 (1993), provides a basis

for their claim under the Excessive Fines Clause. Austin made

clear that a crucial question under the Eighth Amendment is

whether a confiscation of property is punishment, not whether the

proceeding culminating in property confiscation is a criminal or

civil proceeding. See id. at 610. The argument advanced in

Appellants’ case would apparently be that the demolition of their

buildings was punishment, and in violation of the Eighth

Amendment.

Austin, however, did not overrule Ingraham v. Wright, 430

U.S. 651 (1977).10 In Ingraham, the Court explicitly described

the Eighth Amendment as being “designed to protect those

convicted of crimes.” 430 U.S. at 664; see also id. at 666

(“[T]he original Constitution was criticized in the Massachusetts

and Virginia Conventions for its failure to provide any

protection for persons convicted of crimes. This criticism

provided the impetus for inclusion of the Eighth Amendment in the

Bill of Rights.”). It was this view of the Amendment’s

historical context that supported the Court’s holding that the

Amendment was not applicable to a case involving corporal

punishment administered to schoolchildren. See id. at 669.

There was no question regarding whether the paddling at issue in

10
In fact, the only reference to Ingraham v. Wright came
in a footnote and was in connection with Ingraham’s discussion of
the English Bill of Rights. See Austin, 509 U.S. at 609 n.5.

14
Ingraham was punishment. Thus, for Austin’s focus on punishment

to provide the basis for Appellants’ claims, Ingraham would have

to have been overruled. It was not, and this dooms Appellants’

claim.11

V. RIPE CLAIMS

This brings us to the question of whether the district court

erred in dismissing the takings, due process, and equal

protection claims as unripe. We may quickly dispose of the

takings claim. We note that Appellants do not assail the City’s

right to demolish buildings that are dangerous or abandoned.

They do not assert that the City demolished their property for a

private purpose, compare Armendariz v. Penman, 75 F.3d 1311, 1321

(9th Cir. 1996) (en banc) (describing an alleged purpose of the

government’s action as facilitating the purchase, at a lower

price, of property by a shopping-center developer), and indeed,

nowhere specify an alleged purpose of the City’s action. The

complaint simply asserts that the demolition was undertaken

11
As the lower court suggested, language in Ingraham
pertaining to application of the Eighth Amendment to punishment
imposed by a State is also relevant to the finding that
Appellants’ claim is frivolous. In Ingraham, the Court noted
that “the State does not acquire the power to punish with which
the Eighth Amendment is concerned until after it has secured
formal adjudication of guilt in accordance with due process of
law. Where the State seeks to impose punishment without such an
adjudication, the pertinent constitutional guarantee is the Due
Process Clause of the Fourteenth Amendment.” 430 U.S. at 671-72
n.40.

15
“without a public purpose and without just compensation in

violation of the Fifth Amendment.” Given Appellants’ other

allegations, we interpret the complaint to assert that the

demolition was undertaken pursuant to an invalid law or in

violation of the Bond Agreement or that it amounted to a

destruction of buildings that were not, in fact, nuisances.12

Because a violation of the Takings Clause does not occur

until just compensation has been denied, see Williamson County,

473 U.S. at 194 n.13, Appellants must use available state

procedures to seek such compensation before they may bring a

§ 1983 takings claim to federal court.13 See Rolf, 77 F.3d at

12
In interpreting the complaint in this manner, we make no
statement as to the viability of these claims under the U.S.
Constitution. The issue before us is not whether Appellants
state a viable claim under the Takings Clause (unless the entire
claim can be said to be entirely foreclosed under Supreme Court
precedent) but rather whether they assert a right to just
compensation for the government’s taking of their property. Cf.
Rolf, 77 F.3d at 827 n.10 (noting that under the federal law, the
plaintiffs’ claim would not likely be successful). If such a
right is asserted, and if given their claim Appellants have an
available means of pursuing just compensation from the State,
Williamson County requires that the state-provided procedures
first be used. We have recognized one exception to this rule —
claims that the government took property for private purposes do
not have to be first submitted to those procedures. See Samaad,
940 F.2d at 936 (holding that Williamson County does not require
that compensation first be sought using state procedures where
plaintiffs contend their property was taken for a private use).
13
In bringing their claim for compensation to the state
court, Appellants may be able to avail themselves of the steps
outlined in Guetersloh v. State of Texas, 930 S.W.2d 284, 289-90
(Tex. App. 1996, writ denied), cert. denied, 522 U.S. 1110
(1998), and reserve their right to have their takings claim
litigated in federal court.

16
827; Samaad, 940 F.2d at 936.14 Although Appellants initially

brought their claims to state court, they subsequently nonsuited

the City and Cherry Moving. Appellants have not been denied just

compensation, and as a result, their takings claim is unripe.

The district court, in response to Appellants’ arguments

that state-provided procedures are inadequate because those

procedures do not provide compensation where a governmental

body’s police powers are used, found sufficient reason to hold

that those procedures are adequate. We have no cause to conclude

otherwise. Before us, however, Appellants contend that the

state’s inverse condemnation procedures do not provide for

compensation in cases involving allegations that the deprivation

of property occurred for a non-public use. Based on our review

of cases under Article I, section 17 of the Texas Constitution,

we conclude that Appellants have not met their burden, as set

forth in Samaad, 940 F.2d at 934-35, of establishing that they

“almost certainly” would not be compensated under Texas law.

See, e.g., Waggoner’s Estate v. Gleghorn, 378 S.W.2d 47, 50 (Tex.

14
We recognize a possible inconsistency between Samaad and
Rolf — Samaad held that claims of takings for private use are not
subject to Williamson County’s requirements, while Rolf held that
a claim of a bad faith taking was unripe because plaintiffs had
not pursued compensation through state-provided procedures. The
two can be reconciled — though perhaps not entirely
satisfactorily — by reading Rolf to suggest that claims of
takings for illegitimate, but not for private, purposes must
fulfill Williamson County’s requirements. Because we are held to
prior panel’s opinions, and because a way of reconciling the two
opinions exists, we must follow Rolf’s lead.

17
1964) (“In our opinion Article 1377b is unconstitutional and void

to the extent that it purports to authorize the taking of private

property for a private purpose.”); Maher v. Lasater, 354 S.W.2d

923 (Tex. 1962) (“Article I, § 17 prohibits the taking of

property for private use.”); City of Houston v. Crabb, 905 S.W.2d

669, 674 (Tex. App. 1995, no writ) (upholding jury verdict

awarding compensation for demolition of property the City had not

shown was a nuisance on the day it was destroyed); Atwood v.

Willacy County Navigation Dist., 271 S.W.2d 137, 140 (Tex. App.

1954, writ ref’d n.r.e.)(holding that Article I, section 17

“prohibits the taking of private property for other than a public

use”), appeal dismissed, 350 U.S. 804 (1955).15

A. The Effect of Graham

Whether the dismissal of the takings claim means the

Appellants’ other claims must also be dismissed as unripe is a

more complex question. In resolving it, we are guided not only

by our own precedents, but also by several general principles

announced by the Supreme Court. We begin with Graham, the

decision relied upon by the district court to reach its

conclusion that Appellants’ remaining claims must be dismissed.

15
As noted above, Appellants’ complaint also asserts a
violation of Article I, section 17 of the Texas Constitution.
The resolution of this claim in federal court does not satisfy
the requirements of Williamson County. See Samaad, 940 F.2d at
934 (rejecting the argument that a pendent state claim could
serve the purpose of rendering the federal takings claim ripe).

18
 In Graham, the Court rejected use of the Fourteenth

Amendment’s substantive due process test and instead applied the

Fourth Amendment’s reasonableness standard to a claim that law

enforcement officers used excessive force in the course of an

investigatory stop. See Graham, 490 U.S. at 395. The Court

reasoned that because the Fourth Amendment provided “an explicit

textual source of constitutional protection against this sort of

physically intrusive governmental conduct, that Amendment, not

the more generalized notion of ‘substantive due process,’ must be

the guide for analyzing these claims.” Id. The Court has

subsequently noted that Graham applies “if a constitutional claim

is covered by a specific constitutional provision,” United States

v. Lanier, 520 U.S. 259, 272 n.7 (1997), and if a substantive due

process claim is not so covered, it is to be analyzed using

substantive due process standards. See Lewis, 523 U.S. at 842-44

(analyzing an excessive use of force claim that did not involve a

seizure or a search using substantive due process, rather than

Fourth Amendment, standards).

The purpose of Graham is to avoid expanding the concept of

substantive due process where another constitutional provision

protects individuals against the challenged governmental action.

See id. at 842; Albright, 510 U.S. at 274-75; Collins v. Harker

Heights, 503 U.S. 115, 125 (1992) (“[T]he Court has always been

reluctant to expand the concept of substantive due process

because the guideposts for responsible decisionmaking in this

19
unchartered area are scarce and open-ended.”). In essence, to

the extent that there is duplication, the more explicit textual

source of constitutional protection is to be used to assess the

validity of the challenged action.

This does not mean, however, that the applicability of the

more explicit provision pre-empts due process protections. See

Lewis, 523 U.S. at 842-44; James Daniel Good Real Property, 510

U.S. at 49 (“We have rejected the view that the applicability of

one constitutional amendment pre-empts the guarantees of

another.”). Moreover, it is clear that a particular action may

implicate more than one constitutional protection. See Soldal,

506 U.S. at 70 (“Certain wrongs affect more than a single right

and, accordingly, can implicate more than one of the

Constitution’s commands. Where such multiple violations are

alleged, we are not in the habit of identifying as a preliminary

matter the claim’s ‘dominant’ character. Rather, we examine each

constitutional provision in turn.”). Thus, simply because an

explicit provision applies does not mean that that provision

makes inapplicable all substantive due process protections. See

Albright, 510 U.S. at 288 (Souter, J., concurring) (suggesting

that due process is reserved for “otherwise homeless substantial

claims”); Tri-County Indus., Inc. v. District of Columbia, 104

F.3d 455, 459 (D.C. Cir. 1997) (noting that under the circuit’s

prior opinions, “the requirements of the takings clause cannot be

20
said to exhaust the Fifth Amendment’s substantive protection of

property rights from government imposition”).

A number of circuit courts have used Graham to support

considering a substantive due process claim as invoking the

Takings Clause’s protections. See, e.g., South County Sand &

Gravel v. Town of South Kingstown, 160 F.3d 834, 835 (1st Cir.

1998) (applying Graham to facial due process challenge to

ordinance); Macri v. King County, 126 F.3d 1125, 1129 (9th Cir.

1997) (holding that substantive due process claim alleging no

legitimate public purpose was based on conduct that implicated

the Takings Clause), cert. denied, 522 U.S. 1153 (1998); Tri-

County, 104 F.3d at 459 (applying Graham, but finding claim was

not fully covered by Takings Clause); Bateman v. City of West

Bountiful, 89 F.3d 704, 709 (10th Cir. 1996) (relying in part on

Graham to hold that plaintiff’s due process and equal protection

claims were subsumed into the Takings Clause); Armendariz, 75

F.3d at 1318-20 (holding that plaintiffs’ substantive due process

claim was pre-empted by the Fourth Amendment and by the Takings

Clause). The effect of such an application may be the dismissal

of the substantive due process claim because such a claim cannot

be brought, see, e.g., Macri, 126 F.3d at 1130,16 the treatment

of the entire claim as a takings claim, see, e.g., Bateman, 89

16
We note that in Macri, plaintiffs had also asserted a
takings claim. 126 F.3d at 1127.

21
F.3d at 709, or the analysis of the “remainder” using substantive

due process standards, see Tri-County, 104 F.3d at 459-60.

Other courts, including our own, have analyzed substantive

due process claims and takings claims separately without

mentioning Graham. See, e.g., Berger v. City of Mayfield

Heights, 154 F.3d 621 (6th Cir. 1998) (facial challenge to

ordinance as not rationally related to legitimate governmental

purpose); Texas Manufactured Housing Ass’n, Inc. v. City of

Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996) (facial and as-

applied challenge to city zoning ordinance, alleging government

action was arbitrary and capricious); Restigouche, Inc. v. Town

of Jupiter, 59 F.3d 1208 (11th Cir. 1995) (arbitrary and

capricious governmental application of zoning regulations);

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375 (2d Cir. 1995)

(arbitrary conditioning of zoning compliance permits on

conveyance of property to town), cert. denied, 519 U.S. 808

(1996). We, along with other courts, also have analyzed

substantive due process claims in the absence of takings claims

without invoking Graham. See, e.g., Hidden Oaks, Ltd. v. City of

Austin, 138 F.3d 1036, 1044 (5th Cir. 1998) (as-applied challenge

to placement of utility holds on buildings, arguing such holds

were not rationally related to the protection of health and

safety); Taylor Inv., Ltd. v. Upper Darby Township, 983 F.2d 1285

(3d Cir.) (allegation that denial of use permit was arbitrary and

capricious), cert. denied, 510 U.S. 914 (1993). We may conclude

22
that these courts viewed the substantive due process claims

before them as asserting rights not protected by the Takings

Clause.

Although the above cited cases involve factual settings

different from Appellants’, we can say that a blanket rule that

under Graham, the Takings Clause subsumes any substantive due

process claim relating to a deprivation of property is both

inconsistent with our precedents and with the approach taken by a

majority of other circuit courts.17 Cf. Pearson v. City of Grand

Blanc, 961 F.2d 1211 (6th Cir. 1992) (rejecting rationale that

all arbitrary and capricious substantive due process claims are

merged into taking claims). Instead, a careful analysis must be

undertaken to assess the extent to which a plaintiff’s

substantive due process claim rests on protections that are also

afforded by the Takings Clause, and, in the proper case, by the

Fourth Amendment. See Soldal, 506 U.S. at 61.

B. The Effect of Williamson County

That analysis is but the first step to an assessment of

whether the claims a plaintiff asserts are ripe under Williamson

County. The Court in Williamson County gave two reasons why a

takings claim that involved a challenge to an application of a

17
Given the effects of Williamson County, the application
of such a rule would seem to preclude any examination of whether
the substantive due process claim is better analyzed as a Fourth
Amendment claim.

23
zoning ordinance was not considered ripe: (1) the absence of a

final decision, and (2) the failure on the part of the plaintiffs

in that case to seek just compensation from the state. See

Williamson County, 473 U.S. at 186, 194; see also Suitum v. Tahoe

Reg’l Planning Agency, 520 U.S. 725, 738-39 (1997) (describing

concerns underlying the Williamson County’s finality

requirement). If the Court considered the claim to be a due

process, rather than a takings claim, the absence of a final

decision still made that claim unripe. See Williamson County,

473 U.S. at 197-200.

Since Williamson County was decided, courts have applied

these principles to not only substantive due process claims, but

also to procedural due process and equal protection claims. In

most cases, however, only Williamson County’s finality

requirement has been applied to claims other than the “due

process takings” claim described in that case. See, e.g.,

McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997)

(“Because the City’s decisions to deny zoning and building

permits absent surrender of the privacy buffer were final, the

McKenzies’ due process and equal protection claims are ripe.”);

Strickland v. Alderman, 74 F.3d 260, 265 (11th Cir. 1996) (“As

applied due process and equal protection claims are ripe for

adjudication when the local authority has rendered its final

decision with respect to the application of the regulation.”);

Taylor Inv., Ltd., 983 F.2d at 1292-94 (applying Williamson

24
County’s finality rule to due process and equal protection claims

involving township’s revocation of use permit); Southview

Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir. 1992)

(applying only Williamson County’s finality requirement to claims

of arbitrary and capricious action), cert. denied, 507 U.S. 987

(1993); Del Monte Dunes, Ltd. v. City of Monterey, 920 F.2d 1496,

1507 (9th Cir. 1990) (“In evaluating the ripeness of due process

or equal protection claims arising out of the application of land

use regulations, we employ the same final decision requirement

that applies to regulatory takings claims.”). But see River

Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.

1994) (holding that procedural due process claims in zoning cases

are unripe unless available state procedures have been used). In

contrast, the court below held that any due process and equal

protection claims Appellants assert are subsumed into their

takings claim, and thus are not ripe for review.

In so doing, the court adopted the approach of the Tenth

Circuit, which applies Williamson County to due process and equal

protection claims “that rest upon the same facts as a concomitant

takings claim.” Bateman, 89 F.3d at 709. This rule arises from

that court’s “reluctan[ce] in the context of a factual situation

that falls squarely within [the Takings Clause] to impose new and

potentially inconsistent obligations upon the parties under the

substantive or procedural components of the Due Process Clause.”

Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991).

25
In effect, the Tenth Circuit appears to use reasoning analogous

to Graham’s to support treatment of other claims as takings

claims. See Bateman, 89 F.3d at 709 (describing its reasoning as

similar to that applied in Graham to substantive due process

claims).

Given the Supreme Court’s discussions of Graham, its

statements in James Daniel Good Real Property and Soldal

regarding pre-emption and multiple claims, the other circuits’

treatment of comparable issues and, last but not least, our own

precedent, we think it unwise to adopt the Tenth Circuit’s rule.

Graham applies to substantive due process claims. Although we

have previously held that a “related due process claim” was

subject to Williamson County’s ripeness requirements, see Rolf,

77 F.3d at 827, we did not do so as a result of applying

Graham.18 Rolf also involved an equal protection claim to which

we did not see fit to apply either Graham or Williamson County.

See id. at 828. As the lower court noted, finality is not an

issue in the instant case — it is clear what the City has

determined to be the proper use of Appellants’ property. As a

result, we do not face here circumstances demanding application

of Williamson County’s requirements to claims other than those

properly characterized as takings claims.

18
After acknowledging that a First Amendment claim was, in
effect, a substantive due process claim, it was noted that this
was the only substantive due process claim alleged. See Rolf,
77 F.3d at 827 n.18.

26
 C. Appellants’ Claims

We may now assess whether Appellants’ due process and equal

protection claims are sufficient to invoke federal question

jurisdiction under Graham and Williamson County. Reviewing

Appellants’ complaint, we conclude that other than the claim we

regard as a takings claim, the complaint includes only one

“substantive due process” claim. Appellants assert that the

demolition was carried out under unconstitutional laws (the CURB

Ordinance and the law on which the 1991 demolition order was

based). Given other language within the complaint, we read it to

allege that the relevant ordinances are unconstitutionally vague,

both facially and as applied. This claim invokes protections of

the Due Process Clause, see United States v. Insco, 496 F.2d 204,

208 (5th Cir. 1974) (“Vaguely phrased measures run afoul of

substantive due process requirements by failing to convey with

reasonable certainty the statute’s intended sweep.”), not the

Takings Clause, and thus is unaffected by Graham. It is also

ripe for review. The Appellants’ equal protection claim asserts

rights not protected by the Takings Clause, and is thus not

amenable to treatment as a takings claim under Graham. It is

also ripe for review.19

19
The City and Cherry Moving argue that Appellants’ equal
protection claim should be dismissed because it does not state a
claim upon which relief can be granted, and cite Guthrie v. Tifco
Indus., 941 F.2d 374, 379 (5th Cir. 1991), for the proposition
that a court may sua sponte dismiss a claim on 12(b)(6) grounds.
Because Guthrie involved summary judgment, and not the initial

27
 Appellants’ procedural due process claims stand on more

unstable ground. Appellants assert that the City’s actions

violated the Takings Clause, and that they were not afforded due

process prior to the demolition of their buildings. The takings

claim is not yet ripe, and it will only be when a court may

assess the takings claim that it will also be able to examine

whether Appellants were afforded less procedure than is

constitutionally required. See Williamson County, 473 U.S. at

195 n.14 (“Unlike the Due Process Clause, however, the Just

Compensation Clause has never been held to require pretaking

process or compensation.”); Bigelow v. Michigan Dep’t of Natural

Resources, 970 F.2d 154, 160 (6th Cir. 1992) (“Until the state

courts have ruled on the plaintiffs’ inverse condemnation claim,

this court cannot determine whether a taking has occurred, and

thus cannot address the procedural due process claim with a full

understanding of the relevant facts.”).

subject-matter jurisdiction determination, we do not find it
applicable. Indeed, applying such a principle at this stage
would appear directly contrary to the teachings of Bell v. Hood,
327 U.S. at 682 (“Whether the complaint states a cause of action
on which relief could be granted is a question of law and just as
issues of fact it must be decided after and not before the court
has assumed jurisdiction over the controversy.”). See also
Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1346 (5th
Cir. 1985) (“Whether a federal court has jurisdiction to decide a
case and whether a plaintiff has a cause of action under a
federal statute are distinct inquiries that must be addressed
separately.”); id. at 1348 (“This circuit has . . . held that a
court should not render what is, in effect, a judgment on the
merits of a claim in the name of a jurisdictional inquiry.”).

28
 Appellants argue that our decision in Hidden Oaks suggests

that procedural due process claims are not subject to Williamson

County’s requirements. See Hidden Oaks, 138 F.3d at 1045 n.6

(refusing to apply Williamson County to plaintiffs’ procedural

due process claim). In Hidden Oaks, plaintiffs asserted a

violation of their procedural due process rights that inflicted

an injury separate from any takings claim that was dismissed

prior to trial. Appellants’ claim is not of the same nature as

they assert that they were denied the pre-demolition procedure

required by the Constitution.20 As a result, Hidden Oaks is of

no assistance. In determining that Appellants’ procedural due

process claim is unripe, we do not apply Williamson County per

se, but rather the general rule that a claim is not ripe if

additional factual development is necessary. See New Orleans

Pub. Serv., Inc. v. Council of the City of New Orleans, 833 F.2d

583, 587 (5th Cir. 1987).

VI. CONCLUSION

Although we conclude that some of Appellants’ claims are

properly dismissed, we find that others are sufficient to invoke

subject-matter jurisdiction. We therefore AFFIRM in part,

20
We note that Appellants do not assert that the
procedures mandated by the ordinances authorizing demolition of
dangerous buildings are constitutionally inadequate. Instead,
they allege only that they were not provided due process prior to
the demolition.

29
REVERSE in part, and remand for further proceedings not

inconsistent with this opinion. We leave to the district court

matters related to the proper disposition of the claims we have

determined to be ripe for review and of Appellants’ pendent state

law claims, including whether under Federal Rule of Civil

Procedure 15(a) Appellants should be granted leave to amend their

complaint. Each party shall bear its own costs.

30