Urban Developers LLC v. City of Jackson MS

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-60046

URBAN DEVELOPERS LLC,

Plaintiff-Appellee,
versus
CITY OF JACKSON MISSISSIPPI; ET AL,
Defendants,

CITY OF JACKSON MISSISSIPPI;
MISSISSIPPI REGIONAL HOUSING
AUTHORITY VI; JOHN MURPHY, in his
official and individual capacities;
SHARON WILSON, in her official and
individual capacities,

Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Mississippi

Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Urban Developers LLC brought this suit

against the City of Jackson and its Mayor, Harvey Johnson, in his

individual and official capacities; and also against the

Mississippi Regional Housing Authority VI (MRHA) and its officers,

John Murphy and Sharon Wilson, in their individual and official
capacities. Urban Developers asserted federal takings and

procedural due process claims under section 1983, and supplemental

state-law claims for taking and deprivation without due process

under the Mississippi Constitution, breach of contract, tortious

interference with contract, and negligence. A jury found for Urban

Developers on most claims except those against Mayor Johnson (and

those against the City for negligence and tortious interference).

The district court entered judgment on the verdict in favor of

Urban Developers and against the City, the MRHA, Murphy and Wilson.

In accordance with the jury verdict, the judgment awarded Urban

Developers $1,000,000 damages as against the MRHA, Wilson and

Murphy, jointly and severally, and also $415,000 damages as against

the City. The judgment likewise awarded Urban Developers

attorney’s fees in the amount of $48,363 as against the City and

also $118,406 as against the MRHA, Wilson and Murphy, jointly and

severally.

The City of Jackson appeals contending, inter alia, that none

of Urban Developers’ winning claims were ripe for review. We

agree, and dismiss without prejudice all claims appealed by the

City.

The MRHA, Murphy and Wilson challenge subject matter

jurisdiction and appeal from the district court’s denial of their

motion for judgment as a matter of law, principally contending that

the jury erred in finding that a contract existed between the MRHA

2
and Urban Developers. We agree, and reverse the district court’s

rulings on the following matters: the contract question, the

related state and federal procedural due process claims arising out

of an alleged deprivation of those same contract rights, the

Mississippi takings claim against the MRHA and Murphy, and the

court’s ruling on the claims arising under the Mississippi Tort

Claims Act. We dismiss all remaining claims against the MRHA and

its officers without prejudice as unripe.

FACTS AND PROCEEDINGS BELOW

In 1978, the Department of Housing and Urban Development (HUD)

faced a nationwide shortage of low-income housing because an

estimated 2.7 million apartment units suffered from deficiencies

that made them ineligible for HUD rental subsidies. To address

this problem, Congress amended Section 8 of the United States

Housing Act of 1937, to create the Moderate Rehabilitation (“Mod

Rehab”) program. 42 U.S.C. § 1437f (1982). This program

authorized HUD to provide financial incentives to the owners of

substandard housing to upgrade their properties. Act of Oct. 31,

1978, Pub.L. No. 95-557, § 206(e), 92 Stat. 2080, 2092.

HUD regulations governing the program made state

public-housing authorities responsible for the program’s

administration. These public housing authorities would first

decide which substandard properties qualified for funding, 24

C.F.R. §§ 882.503-882.504 (1982), and would then contract with the

3
owners to rehabilitate the properties. 24 C.F.R. § 882.505 (1982).

Once the property was adequately upgraded, 24 C.F.R. § 882.506

(1982), the owners were eligible for contracts with the public

housing authority, funded though HUD, that guaranteed a

fifteen-year stream of rental subsidies. These rents were pegged

at up to 120% of the fair market value, an income stream intended

to cover both the costs of rehabilitation as well as operating

expenses. 24 C.F.R. §§ 882.403(c), 882.409 (1982). HUD oversaw the

public housing authorities' administration of the Mod Rehab

program, allocating funds to qualified public housing authorities

under one-year annual contribution contracts. 24 C.F.R. §§

882.403, 882.501 (1982).

In 1990, Congress repealed the Mod Rehab program, but has

since provided for one-year extensions on expiring contracts at the

owner’s request. 42 U.S.C. 1437f (e)(2), repealed by

Cranston-Gonzalez National Affordable Housing Act of 1990, Title

II, § 289(b), 104 Stat. 4128. See, e.g., HUD Directive Number

01-29, Financial Management Program Requirements for Section 8

Moderate Rehabilitation Program Housing (2001) (providing for

extensions).

The Mississippi legislature created local and regional housing

authorities in 1938 to provide “safe and sanitary dwelling

accommodations for persons of low income.” Miss. Code Ann. §

43-33-3 (2001). The defendant-appellant, MRHA, is one such

4
regional housing authority. It is responsible for the

administration of the Section 8 housing programs for nine counties

in Northeast Mississippi, and is governed by a nine-member board of

commissioners which meets monthly. MRHA is authorized to develop

and operate low-income housing under the United States Housing Act

of 1937. 42 U.S.C. § 1437a(b)(6). During much of the time period

relevant to this litigation, Sharon Wilson was the assistant

executive director of the MRHA, and her supervisor, John Murphy,

was the interim executive director. Both Wilson and Murphy are

sued in their individual and official capacities.

The plaintiff-appellee, Urban Developers LLC, a Mississippi

limited liability company, was at all times run by its principal

member, Shahid Shaikh. On November 20, 2000, Urban Developers

purchased the often-flooded and nearly-bankrupt Town Creek

Apartments in Jackson, Mississippi, a city within MRHA’s region.

Town Creek’s revenue came entirely from MRHA tenants, subsidized by

two Mod Rehab contracts that the prior owner, Mitchell Company, had

executed with the MRHA in 1984. Lured by these Mod Rehab

contracts, Urban Developers purchased Town Creek from the Mitchell

Company and its lienholding banks. Urban Developers was unaware of

the flood danger and did not seek flood insurance.

The question of whether the two Mod Rehab contracts were

properly assigned from the Mitchell Company to Urban Developers was

a highly contested issue at trial. Although both contracts

5
required the express, written consent of the MRHA as a precondition

of assignment,1 such written consent was never given to either the

Mitchell Company or Urban Developers, and the MRHA’s board minutes

contain no discussion or vote approving (or in any way addressing)

any assignment of the contracts. The Mitchell Company did however

receive oral approval for the assignment from several

representatives of MRHA, including the defendant Wilson. At the

time, it seems, no one cared about the improper assignment. Urban

Developers had rescued the Town Creek Apartments from likely

insolvency or lien foreclosure and had immediately invested

$200,000 for repairs to the apartments. The MRHA increased Urban

Developers’ monthly payments as Shaikh brought more apartments up

to standard, and suggested that they would continue to renew Urban

Developers’ yearly Mod Rehab contracts as long as Congress

continued to fund them. In fact, since 1998, the yearly directives

issued by HUD had required housing authorities to renew the

expiring yearly contracts if the owner so requested.

The two contracts associated with Town Creek Apartments were

due to expire on March 31, 2001, and October 31, 2001.2 Because

1
Section 1.18 of the Mod Rehab contracts provides: “The
Owner has not made, and agrees not to make, any transfer in any
form of this Contract or the property without the prior written
consent of the PHA.”
2
The first contract (covering a portion of the Town Creek
Apartments) was effective April 3, 1984 and expired by its terms
March 31, 1999; prior to March 31, 1999 it was renewed for a one
year term expiring March 31, 2000; prior to March 31, 2000 it was

6
the appropriations bill was delayed in Congress that year, the HUD

directives that explained renewal procedures for FY 2002, beginning

October 1, 2001, were also delayed until the Spring of 2001.3 So,

it wasn’t until July 5, 2001, that Sharon Wilson sent a letter to

Shaikh, requesting written verification of his interest in renewing

the contracts, outlining the renewal process, and proposing a

reduction in rent for the following year. Shaikh replied in

writing five days later, notifying her that he did desire to renew

both contracts and disputing the lowered rent. In the letter,

Shaikh advised Wilson that, in accordance with HUD regulations, he

would renew at the lower rate but would then avail himself of an

appeal to HUD. Wilson, however, in contravention of HUD

regulations, refused to let Shaikh renew the contracts until the

dispute about rental values was settled.

During that same period, the MRHA was deciding whether it

should just let the two contracts expire. When the time came to

request funding from HUD for the 2002 fiscal year, the MRHA’s

again renewed for another one year term expiring March 31, 2001.
The second contract (covering the remainder of the Town Creek
Apartments) was effective November 1, 1984 and expired by its
terms October 31, 1999; prior to November 1, 1999 it was renewed
for a one year term expiring October 31, 2000; prior to November
1, 2000, it was again renewed for a one year term expiring
October 31, 2001.
3
Directive Number 2001-13, Financial Management Program
Requirements for Section 8 Moderate Rehabilitation Program
Housing (2001).

7
executive director who preceded Murphy4 (and who is not party to

this suit) did not include Town Creek’s Mod Rehab contracts in the

budget, deciding instead to rely on tenant-based assistance in the

form of housing-choice vouchers. On July 15, 2001, the MRHA board

approved a budget for 2002 that did not include funds for the two

Mod Rehab contracts. Shiakh was not notified of this decision

until months later.

By August 2001, Shaikh and Wilson were deep into the rental

dispute. The first contract had already expired on March 31, 2001,

although apparently it was common practice for the MRHA to continue

to pay rental subsidies so long as extension negotiations were

on-going. The second contract was due to expire on October 31,

2001.

In the early morning of August 12, 2001, a flash flood

inundated twenty-two ground-level units of the Town Creek

apartments, filling some with as much as four to five feet of

water.5 That day, the governor of Mississippi declared a state of

emergency in the City of Jackson and nearby counties. On August

15, 2001, Mayor Johnson visited the apartments and then allegedly

told Murphy that the City was going to condemn the entire Town

4
Murphy assumed the title of interim executive director of
the MRHA on July 18, 2001. His predecessor was Bobby Hensely.
5
There were 70 occupied units at Town Creek when the flood
occurred. Seven of its twelve apartment buildings were badly
damaged.

8
Creek Apartment complex, that no tenants would be allowed to

continue living on the property, and that the Housing Authority

should issue housing-choice vouchers to all of the tenants.

On August 17, 2001, Murphy was out of town at a HUD

conference. Over the phone, Shaikh suggested to Murphy that,

instead of issuing housing-choice vouchers to the tenants, which

would give them an option to seek shelter elsewhere, the MRHA

should shelter the displaced tenants in vacant units at Town Creek

that were unaffected by the flood. Murphy hesitated, responding

that “he wasn’t sure if he could do that and that he needed some

direction from the City if he would be allowed to do that.” That

same day, after discussion with some HUD officials at the

conference, and under the mistaken belief that the entire apartment

complex was being condemned, Murphy called Wilson and directed her

to issue housing-choice vouchers to all the residents of Town

Creek. At trial, Wilson testified that while she and her staff

were handing out these vouchers, they told the residents that,

because Town Creek was under a different section 8 program, they

couldn’t use the vouchers at Town Creek.

This action was taken, Urban Developers argues, despite the

fact that MRHA had not conducted formal housing-quality inspections

of the units, as required by HUD regulations. Murphy’s swift

action was in contravention of other HUD regulations as well,

including directives that encouraged housing authorities to

9
temporarily relocate displaced tenants in their same complex while

repairs were made, and regulations that required the housing

authority to give Urban Developers notice of any deficiencies and

at least twenty-four hours to repair the units.

When Shaikh found out that MRHA was issuing vouchers to

everyone at Town Creek, he immediately called Murphy. Murphy said

that “the property was condemned and, given that situation, that

the tenants needed to be handed out vouchers and relocated.”

Shaikh told Murphy that he hadn’t received any condemnation notice

from the City. When they hung up, Shaikh then called a city

official who confirmed that there had not yet been a condemnation

decision: the City was still reviewing what needed to be done. In

fact, at an August 29, 2001 hearing with city officials, Shaikh

outlined his plans for repair, and no one mentioned condemnation.

On August 31, Shaikh met with Murphy at the MRHA office and

asked Murphy where he got the idea that Town Creek was condemned.

Murphy played him an August 16 answering-machine message from the

Mayor’s office, instructing MRHA to issue vouchers ahead of the

impending condemnation. Murphy admitted to Shaikh that he hadn’t

followed proper procedure and promised to renew the Mod Rehab

contracts if Shaikh didn’t make a stink about it. At trial, Murphy

again admitted that he “may have made a technical error [in handing

out vouchers], but . . . [t]he technicality relates to whether

proper notice was given.” In the month of September 2001, all but

10
eight units of Town Creek Apartments were vacant.

On October 10, a City official sent Urban Developers notice of

condemnation for forty of Town Creek’s ninety-five apartment units.

The City official also informed Urban Developers that because the

City’s Floodplain Management Ordinance applied, Urban Developers

could not make any repairs to the Town Creek apartments without

first elevating the buildings. The Ordinance applies to flood-zone

structures where the cost of restoring the structure to its prior

condition would equal or exceed fifty percent of its prior market

value. Shaikh protested, arguing that his cost of repairs was well

below fifty percent of market value. On October 15, the City

official requested a repair plan from Shaikh, which he provided.

On October 17, 2001, Wilson sent a letter to Shaikh,

explaining that “[i]n view of the [Town Creek] tenants being issued

a Housing Choice voucher due to the August flooding the Housing

Assistance Payments will terminate as the families locate new units

for rent.” By the end of October, fewer than five tenants remained

at Town Creek. Through a November 1, 2001 letter from the MRHA to

Town Creek, the MRHA advised, with respect to a particular tenant

resident at the apartments under a signed lease, that “We will

continue the HAP [payments] as long as he continues his residency

or until the HAP contract expires.”

In a November 30 letter, a City official requested further

details concerning Urban Developers’ repair plan. Around the same

time, Murphy told Shaikh that he could not renew the Mod Rehab

11
contract because HUD had not budgeted money for the Mod Rehab

contract associated with Town Creek. In response, Shaikh wrote a

letter to Murphy, insisting upon MRHA’s obligation, under its

Annual Contribution Contract with HUD, to renew the contracts at

the owner’s request. In a letter dated December 27, 2001, Murphy

responded to Shaikh, advising him that (1) the Mod Rehab contracts

had expired because Urban Developers had not agreed to the reduced

rent;(2) the contracts were never valid because MRHA hadn’t given

the Mitchell Company written authorization to assign to Urban

Developers; and (3) HUD was responsible for the contract’s

termination because HUD had failed to fund it. Shaikh thereafter

contacted HUD directly. On December 31, 2001, a regional HUD

official told Shaikh that the MRHA had failed to request funding

for the Town Creek contracts back in July.

Urban Developers never followed through with its repair plans

and never requested a building permit, because, as Shaikh suggested

at trial, the apartments weren’t worth repairing without the Mod

Rehab contracts.

Urban Developers asserts that Wilson violated HUD regulations

that require all public housing authorities to (1) renew all Mod

Rehab contracts if the owner so requests; (2) in case of a dispute

about the rent, renew the contract and let the owner appeal the

rent reduction; and (3) provide owners with one year’s notice

before terminating a contract. Wilson in her testimony agreed “in

hindsight” with the statement, apparently in respect to not

12
furnishing housing assistance payments for tenants to relocate from

flood damaged units at Town Creek to undamaged units but instead

furnishing those tenants housing choice vouchers, that “MRHA VI

chose to act under political pressure and without following

guidelines and with insufficient and/or factually incorrect grounds

for the decisions it made.” She likewise testified “I think it

[the Mod Rehab contract] should have been renewed. The owner had

complied with the housing quality standards, had done repairs,

[and] had a good working relationship with the Authority.”

DISCUSSION

I. Claims Against the City of Jackson

Against the City of Jackson alone, Urban Developers alleged

(1) a claim under the United States Constitution, through 42 U.S.C.

§ 1983, for deprivation of property without procedural due process;

(2) a claim under the United States Constitution, through section

1983, for taking of property without just compensation; (3) a claim

under the Mississippi Constitution for deprivation of property

without procedural due process; and (4) a claim under the

Mississippi Constitution for taking of property without just

compensation. Against both the City of Jackson and Mayor Johnson,

Urban Developers alleged, (5) a claim for tortious interference

with business relationships; and (6) a claim for negligence.

At the charge conference, Urban Developers withdrew its claims

of tortious interference with business relations (and its claims of

breach of the duties or warranties of good faith and fair dealing).

13
The remaining claims were tried to the jury. At the close of

evidence, the jury rejected the claim that the City and Mayor

Johnson negligently informed MRHA or its staff that the City had

condemned the apartments, but found in favor of Urban Developers on

all four (federal and state) constitutional claims against the

City, awarding damages of $415,000.

Because none of Urban Developers’ winning claims were ripe, we

dismiss them without prejudice for lack of subject matter

jurisdiction as being unripe.6

A. What Property was Taken

The jury instructions identify the property interests that

were allegedly violated by the City. There is a regulatory-takings

claim, alleging that the City of Jackson deprived Urban Developers

of property when it took the economic use of its land, without

taking the land itself, by erroneously applying an otherwise-valid

flood-plain ordinance that prevented rehabilitation and repairs at

the apartments.

B. The Federal Takings Claim

The Takings Clause of the Fifth Amendment, made applicable to

the States through the Fourteenth Amendment, Chicago, B. & Q.R. Co.

v. Chicago, 17 S.Ct. 581, 584 (1897), directs that “private

6
The breach of duties or warranties of good faith and fair
dealing, negligence and tortious interference claims against the
City, on which Urban Developers lost below, are not also
dismissed without prejudice, since pendent-party jurisdiction
still exists.

14
property” shall not “be taken for public use, without just

compensation.” Before addressing the merits of any appeal,

however, this court must be convinced that the claim in question is

ripe, even if neither party has raised the issue. See Samaad v.

City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991). Ripeness is a

question of law that implicates this court’s subject matter

jurisdiction, which we review de novo. Sandy Creek Investors, Ltd.

v. City of Jonestown, Tex., 325 F.3d 623, 626 (5th Cir. 2003);

Groome Res. Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192,

198–99 (5th Cir. 2000).

The Supreme Court has adopted a two-prong test for ripeness

under the Fifth Amendment’s Takings Clause, explaining that such

claims are not ripe until (1) the relevant governmental unit has

reached a final decision as to how the regulation will be applied

to the landowner; and (2) the plaintiff has sought compensation for

the alleged taking through whatever adequate procedures the state

provides. See Williamson County Reg’l Planning Comm’n v. Hamilton

Bank, 105 S.Ct. 3108, 3116, 3121 (1985). In adopting the first

prong, the Court explained its reluctance to hear premature takings

claims as follows:

“this Court consistently has indicated that among the
factors of particular significance in the [Penn Central]
inquiry are the economic impact of the challenged action
and the extent to which it interferes with reasonable
investment-backed expectations. Those factors simply
cannot be evaluated until the administrative agency has
arrived at a final, definitive position regarding how it

15
 will apply the regulations at issue to the particular
land in question.”

Williamson County, 105 S.Ct. at 3118-19 (citations omitted).

For example, in Penn Central the Court declined to hold that

New York City’s Landmarks Preservation Law effected a taking as

applied to Grand Central Terminal, reasoning that although the City

had disapproved a plan for a 50-story building above the terminal,

the property owners had not sought approval for an alternative

plan, and it was therefore uncertain whether the City would

disapprove of all economically beneficial uses of the land. Penn

Central Transp. Co. v. New York City, 98 S.Ct. 2646, 2665–66

(1978); see also Agins v. City of Tiburon, 100 S.Ct. 2138 (1980),

overruled on other grounds by First English Evangelical Lutheran

Church v. Los Angeles County, 107 S.Ct. 2378 (1987) (rejecting a

takings claim as unripe because the property’s owner had not

submitted a plan for development). This means that even if a plan

is initially disapproved by the government, property owners must

then seek variances or waivers, when potentially available, before

a court will hear their takings claims. Williamson County, 105

S.Ct. at 3117; Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., 101 S.Ct. 2352, 2371 (1981). This court has also

held that whenever the property owner has ignored or abandoned some

relevant form of review or relief, such that the takings decision

cannot be said to be final, the takings claim should be dismissed

as unripe. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1041

16
(5th Cir. 1998).

Urban Developers’ regulatory takings claim, that the City

erroneously applied an otherwise valid flood plain ordinance, is

unripe under this first prong. When Urban Developers was notified

that the Mod Rehab contracts wouldn’t be renewed, it suspended its

plans to rehabilitate Town Creek and abandoned all avenues of

review that were available to it. See Hidden Oaks, 138 F.3d at

1041. Shaikh admitted this at trial, explaining that “our

intention to repair the property was really contingent upon us

having income at the property once we repaired it.” Urban

Developers submitted two building plans for approval by the City,

both of which were rejected because they did not comply with the

City’s flood-zone ordinance. After this rejection, although

represented by counsel, Urban Developers neither applied for a

floodplain-development permit, nor pursued mandamus against the

City’s community development officer, nor availed itself of the

appeal process set forth in the City of Jackson municipal code,

which provides any person affected by an order issued by a housing

official with an appeal to the circuit court of the First Judicial

District of Hinds County.7 Like the Court in Penn Central, we

7
This appeal procedure is mandated by the State of
Mississippi pursuant to its Slum Clearance Statute, which
provides that “[a]ny person affected by an order issued by the
public officer may apply to the circuit court for an injunction
restraining the public officer from carrying out the provisions
of the order . . . .” Miss. Code Ann. § 43-35-111 (2001). More
generally, Mississippi also provides for an appeal to a circuit
court for “[a]ny person aggrieved by a judgment or decision of

17
cannot evaluate the extent to which the City has interfered with

Urban Developers’ reasonable investment-backed expectations because

no final decision has been made, nor even sought, regarding the

application of the flood-zone ordinance. Accordingly, we dismiss

as unripe Urban Developers’ regulatory takings claim against the

City of Jackson.

The Mississippi Takings Clause, like its federal counterpart,

has also been interpreted to require finality. See Dunston v.

Mississippi Dep’t of Marine Res., 892 So.2d 837, 843 (Miss. App.

2005) (citing Everitt v. Lovitt, 192 So.2d 422, 428 (Miss. 1966))

(“The Dunstons never filed for, and subsequently were never denied,

a permit to develop their property. Since the Dunstons have not

exhausted all administrative remedies available to them this Court

does not have jurisdiction to hear this claim, as it is unripe for

judicial review.”). Cf. San Remo Hotel v. City and County of San

Francisco, 125 S.Ct. 2491, 2506 (2005) (“It was settled well before

Williamson County that a claim that the application of government

regulations effects a taking of a property interest is not ripe

until the government entity charged with implementing the

regulations has reached a final decision regarding the application

of the regulations to the property at issue.”) (internal quotation

omitted).

To the extent that Urban Developers may have ever alleged

the board of supervisors, or municipal authorities of a city,
town, or village . . . .” Miss. Code Ann. § 11-51-75 (2001).

18
below an ordinary takings claim against the City, in addition to

and as distinguished from the above described regulatory takings

claim, it does not appear that any such claim against the City

under the Fifth Amendment’s Takings Clause (or under the comparable

provision of Art. III, § 17, of the Mississippi Constitution) was

ever submitted to the jury. Moreover, any such ordinary takings

claim would in any event also fail the first ripeness prong. The

City has not made a final decision on whether to condemn the

property, and has done nothing more than state its intent to

proceed with condemnation. The Town Creek Apartments were still

vacant and not condemned when suit was filed, and, as of the date

of oral argument, so they remain. There has never been any actual

physical taking (or occupation) of, or any actual physical damage

to, the Town Creek Apartments, or any part thereof, by the City.

Here we have only a threat to use the City’s legal powers, and a

mere threat does not constitute a taking, since a non-regulatory

taking requires actual government confiscation or physical

occupation. See Shaikh v. City of Chicago, 341 F.3d 627, 632 (7th

Cir. 2003) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 122 S.Ct. 1465, 1478–79 (2002)). Furthermore,

because a violation of the Takings Clause does not occur until just

compensation is denied, any such ordinary takings claim by Urban

Developers would likewise be unripe under the second prong of

Williamson County, which requires the plaintiff to have sought

compensation for the alleged taking through whatever adequate

19
procedures the state provides before seeking to interpose the

federal courts, through section 1983, between a state and its

citizen. Williamson County, 105 S.Ct. at 3121.8 Under this second

prong, the property owner bears the burden of proving that state

law proceedings are unavailable or inadequate. Williamson, 105

S.Ct. at 3122; see also Samaad, 940 F.2d at 934 (“‘[I]nadequate’

procedures are those that almost certainly will not justly

compensate the claimant.”). Urban Developers has not discharged

that burden here. Mississippi law provides for inverse-

condemnation actions, see, e.g., City of Gulfport v. Anderson, 554

So.2d 873, 874 (Miss. 1989),9 yet Urban Developers has not sought

compensation through Mississippi law for the alleged taking. See

Bryan v. City of Madison, Miss., 213 F.3d 267, 276 n.16 (5th Cir.

2000) (rejecting a takings claim as unripe because the property

owner had not first resorted to Mississippi’s court of eminent

domain).

8
This ripeness requirement follows naturally from the
Fifth Amendment itself, which proscribes the taking of “property
. . . without just compensation.” U.S. Const. amend. V (emphasis
added). But see San Remo Hotel v. City and County of San
Francisco, 125 S.Ct. 2491, 2508 (2005) (Rehnquist, C.J., joined
by O’Connor, Kennedy, and Thomas, JJ., concurring in the
judgment) (“It is not clear to me that Williamson County was
correct in demanding that, once a government entity has reached a
final decision with respect to a claimant’s property, the
claimant must seek compensation in state court before bringing a
federal takings claim in federal court.”).
9
See also Miss.Code Ann. § 43-37-9 (2001) (providing costs
and attorneys’ fees to successful plaintiffs in inverse-
condemnation actions).

20
C. Remaining Constitutional Claims against the City

Urban Developers also brought claims against the City for

violations of procedural due process under the United States and

Mississippi Constitutions. These claims focus on the statements

that the apartments would be condemned and regarding the failure to

approve plans for rebuilding, all without a hearing and without

giving notice of deficiencies. We dismiss these remaining

constitutional claims under general ripeness principles.10

A court should dismiss a case for lack of ripeness “when the

case is abstract or hypothetical.” New Orleans Pub. Serv., Inc. v.

Council of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987). “The

key considerations are ‘the fitness of the issues for judicial

decision and the hardship to the parties of withholding court

consideration.’” Id. (quoting Abbott Labs. v. Gardner, 87 S.Ct.

1507, 1515 (1967)). “A claim is not ripe for adjudication if it

rests upon ‘contingent future events that may not occur as

anticipated, or indeed may not occur at all.’” Texas v. United

10
Both Mississippi constitutional claims are best
understood in light of their respective United States
Constitution counterparts, although the Takings Clause of the
Mississippi Constitution provides somewhat broader protection of
private property rights than the Takings Clause of the United
States Constitution. Miss. Const. Art. III, § 17 (“Private
property shall not be taken or damaged for public use, except on
due compensation . . . .”) (emphasis added); see also Gilich v.
State Highway Comm’n, 574 So.2d 8, 11 (Miss. 1990). The federal
and Mississippi due processes clauses, on the other hand,
although worded slightly differently, are implemented
identically. Compare U.S. Const. amend. XIV with Miss. Const.
Art. III, § 14; see also Tucker v. Hinds County, 558 So.2d 869,
873 (Miss. 1990).

21
States, 118 S.Ct. 1257, 1259 (1998).

Urban Developers’ federal and state due process claims against

the City are unripe because, as discussed above, Urban Developers

has yet to suffer a deprivation of property. The City of Jackson

has not made a final determination of whether, or under what

circumstances, it will issue a building permit, or whether it will

condemn the property. These due process claims rest upon a

contingent future event and cannot be properly evaluated by this

court in the present circumstances. See Bigelow v. Michigan Dep’t

of Natural Res., 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.”).

We reach this conclusion, like Fifth Circuit panels before us,

not by direct reference to Williamson County, a case which other

circuits have applied to ancillary due-process claims in such

circumstances,11 but rather by reference to principles of ripeness

generally. See John Corp. v. City of Houston, 214 F.3d 573, 586

(5th Cir. 2000) (“[W]e do not apply Williamson County per se [to

the procedural due process claim], but rather the general rule that

a claim is not ripe if additional factual development is

11
See, e.g., Bigelow, 970 F.2d at 160; Taylor Inv., Ltd. v.
Upper Darby Tp., 983 F.2d 1285, 1293 (3d Cir. 1993); Herrington
v. Sonoma County., 857 F.2d 567, 569 (9th Cir. 1988).

22
necessary.”); see also Hidden Oaks Ltd., 138 F.3d at 1045 n.6

(refusing to apply Williamson County to a procedural due process

claim because there was no primary takings claim present). But see

Smith v. City of Brenham, 865 F.2d 662, 664 (5th Cir. 1989) (citing

Williamson County and concluding that the plaintiff’s due process

challenge to landfill permitting procedures was “premature” because

“no deprivation of property . . . has yet occurred . . . and

certainly will not occur at least until the permit process . . .

has run its course.”).

We accordingly dismiss as unripe all of Urban Developers’

claims on which it prevailed below against the City of Jackson.

II. Claims Against the MRHA, Murphy, and Wilson

At the close of the evidence, the jury found for Urban

Developers on the following claims against the MRHA or its

defendant officers, Murphy and Wilson: (1) a breach of contract

claim against the MRHA; (2) a federal takings claim against the

MRHA and Murphy; (3) a federal procedural due-process claim

against the MRHA and Murphy; (4) a Mississippi takings claim

against the MRHA and Murphy; (5) a Mississippi procedural due

process claim against the MRHA and Murphy; and (6) a negligence

claim under the Mississippi Tort Claims Act against the MRHA,

Wilson, and Murphy. The jury awarded damages of $1,000,000.00, and

the district court rendered judgment on the verdict awarding Urban

Developers $1,000,000 damages, and $118,406 attorney’s fees,

against the MRHA, Wilson and Murphy, jointly and severally. The

23
MRHA, Wilson and Murphy appeal, challenging the sufficiency of the

evidence as well as the court’s subject-matter jurisdiction.

A. Standard of Review

All defendants moved for judgment as a matter of law both at

the close of the plaintiff’s case and again after the jury’s

verdict. In deciding such motions, the district court applies the

standard established in Boeing Co. v. Shipman, 411 F.2d 365 (5th

Cir. 1969) (en banc), overruled on other grounds, 107 F.3d 331, 336

(5th Cir. 1997), and on appeal from such decisions, this court

applies that same standard. Hiltgen v. Sumrall, 47 F.3d 695,

699–700 (5th Cir. 1995). Boeing instructs us to:

“consider all of the evidence—not just that evidence
which supports the non-movers case—but in the light and
with all reasonable inferences most favorable to the
party opposed to the motion. If the facts and inferences
point so strongly and overwhelmingly in favor of one
party that the Court believes that reasonable men could
not arrive at a contrary verdict, granting of the motions
is proper.” 411 F.2d at 374.

However, the court cautioned that “a mere scintilla of evidence is

insufficient to present a question for the jury. . . . There must

be a conflict in substantial evidence . . . .” Id. at 374-75. This

court does not evaluate witness credibility and “it must disregard

all evidence favorable to the moving party that the jury is not

required to believe.” Reeves v. Sanderson Plumbing Prods., 120

S.Ct. 2097, 2110 (2000); see also 9A C. Wright & A. Miller, Federal

Practice and Procedure § 2529, at 300 (2d ed. 1995); Ham Marine,

24
Inc. v. Dresser Indus., Inc., 72 F.3d 454, 461 (5th Cir. 1995)

(“Unless there was no credible evidence presented which might

authorize the verdict, the jury’s findings must stand.”).

Questions of law, however, including determinations of subject-

matter jurisdiction, are reviewed de novo. USX Corp. v. Tanenbaum,

868 F.2d 1455, 1457 (5th Cir. 1989).

B. Breach of Contract Claim against the MRHA

The MRHA disputes the jury’s finding that the Mod Rehab

contracts were validly assigned to Urban Developers from the

Mitchell Company. “The interpretation of a contract is a question

of law and the appellate court is not bound by the . . . standard

of review [for fact findings] unless ambiguities require the court

to consult extrinsic evidence.” Tri-State Petroleum Corp. v. Saber

Energy, Inc., 845 F.2d 575, 581-82 (5th Cir.1988). Where the very

existence of the contract is at issue, however, review for

sufficiency of the evidence is appropriate. Once a contract has

been found and its essential terms have been identified and

determined to be enforceable, the issue of breach is another

question of fact, subject to review for substantial evidence. Ham

Marine, 72 F.3d at 461.

We agree with the MRHA’s contention that there is insufficient

evidence of valid contract assignment from the Mitchell Company to

Urban Developers, and that the purported assignment was void. The

MRHA argued at trial that it had no contractual obligations to

25
Urban Developers because the Mod Rehab contracts contained a

prohibition against assignment without written permission, which

the Mitchell Company never received before purporting to assign its

rights and duties under the contracts to Urban Developers. MRHA

further argues that even if the oral permission were sufficient to

modify the contracts, it was invalid because Mississippi law

requires all government board actions to be taken publicly and

spread upon the minutes of the board meetings.

The Mississippi Supreme Court has long held that “boards of

supervisors and other public boards speak only through their

minutes . . . .” Thompson v. Jones County Cmty. Hosp., 352 So.2d

795, 796 (Miss. 1977) (emphasis added); see also Bridges v. Bd. of

Supervisors of Clay County, 58 Miss. 817 (1881). No cases

directly address whether a public housing authority qualifies as

such a public board, so we turn to that question first. Based on

a review of the MRHA’s organic statute, Mississippi case law, and

the rationale underlying the “spread upon the minutes” requirement,

we hold that it is.

The Housing Authority Act, Miss. Code Ann. § 43-33-1 et seq.,

established, in every city and county of the state of Mississippi,

“a public body corporate and politic to be known as the ‘housing

authority.’” Id. § 43-33-5. The legislature later provided

procedures by which these local housing authorities might

consolidate into larger, regional housing authorities, such as the

MRHA. Miss. Code Ann. § 43-33-103 et. seq. The board of

26
supervisors of each county that is comprised in this regional

housing authority is entitled to appoint a commissioner to the

housing authority’s board. Miss. Code Ann. § 43-33-115. The

commissioners’ qualifications, length of term, quorum and voting

requirements, and compensation are all established by law. Miss.

Code Ann. § 43-33-7; 43-33-49.

These housing authorities are created in “perpetual

succession” to “exercis[e] public and essential government

functions,” and, as public state bodies created by statute, they

have no power or authority except that granted by statute. Miss.

Code Ann. § 43-33-11. Finally, “[t]he property of an authority is

declared to be public property used for essential public and

governmental purposes and such property of an authority shall be

exempt from all taxes . . . .” Miss. Code Ann. § 43-33-37.

The Mississippi Supreme Court has not limited the public

minutes requirement to only county boards of supervisors. In

Thompson, the Mississippi high court applied the minutes

requirement to invalidate an employment contract that was not

spread upon the minutes of a county hospital’s board of trustees,

dismissing the plaintiff’s claim of $160,764.80 in unpaid salary,

and warning “[i]t was the responsibility of the plaintiff to see

that the contract was properly recorded on the minutes.” 352 So.2d

at 798. More recently, in Tupelo Redevelopment Agency v.

Abernathy, the Mississippi Supreme Court impliedly suggested that

the minutes requirement would apply to an urban renewal agency

27
created by the City of Tupelo. 913 So.2d 278, 288 (Miss. 2005).

The organic statute that creates such urban renewal agencies, Miss.

Code Ann. § 43-35-3 et. seq., contains implementing language

identical to that found in the Housing Authority Act. See, e.g.,

Miss. Code Ann. § 43-35-33 (“There is hereby created in each

municipality a public body corporate and politic to be known as the

‘urban renewal agency.’. . .”); see also Miss. Code Ann. § 43-33-7

(establishing the term, voting requirements, and compensation for

the board of commissioners).

Only once has the Mississippi Supreme Court expressly

addressed whether an “other” public board was bound by the minutes

requirement. Rawls Springs Util. Dist. v. Novak, 765 So.2d 1288,

1291 (Miss. 2000). In that case, the court invalidated a contract

that was not spread upon the minutes of a water utility district’s

board of commissioners, noting that “[a]s the District Board is a

public corporation and body politic, we conclude that the District

Board’s action[s] fall under those generally recognized holdings

that limit such bodies to speak and act only through their

minutes.” Id. In so concluding, the court quoted implementing

language from the water district’s organic statute, Miss. Code Ann.

§ 19-5-151 et. seq., language that is nearly identical to that

found in the Public Housing Act. See Novak, 765 So.2d at 1291

(“The District Board is a public corporation . . . and is ‘a body

politic and corporate with power of perpetual succession.’”)

(quoting Miss. Code Ann. § 19-5-165).

28
 We also find support for our holding in the reasons that

support the rule requiring the acts of public boards to be

reflected in their minutes. The Mississippi Supreme Court has

stated these reasons as follows:

“(1) That when authority is conferred upon a board, the
public is entitled to the judgment of the board after an
examination of a proposal and a discussion of it among
the members to the end that the result reached will
represent the wisdom of the majority rather than the
opinion or preference of some individual member; and (2)
that the decision or order when made shall not be subject
to the uncertainties of the recollection of individual
witnesses of what transpired, but that the action taken
will be evidenced by a written memorial entered upon the
minutes at the time, and to which all the public may have
access to see what was actually done.”

Novak, 765 So.2d at 1291–92 (quoting Lee County v. James, 174 So.

76, 77 (Miss. 1937); see also Thompson, 352 So.2d at 796. These

reasons apply with full force to the board of commissioners for the

public housing authorities, who act as custodians of “public

property” and are vested by the people of Mississippi with the

power to exercise “public and essential government functions”

consistent with quorum and voting requirements established by

statute.

Having concluded that MRHA is bound by the minutes

requirement, we now determine whether that requirement renders the

unapproved contractual assignment void. We hold that it does.

The Mississippi Supreme Court has characterized the minutes

requirement as “an important public policy issue,” cautioning that

29
“public interest requires adherence thereto, notwithstanding the

fact that in some instances the rule may work an apparent

injustice.” Butler v. Bd. of Supervisors for Hinds County, 659

So.2d 578, 579 (Miss. 1995) (quoting Colle Towing Co. v. Harrison

County, 57 So.2d 171, 172 (Miss. 1952)). Indeed, “the policy of

protecting the public’s funds for use by and for the public is

paramount to other individual rights which may also be involved.”

Butler, 659 So.2d at 579; see also id. at 581 (discussing

Mississippi’s “past strict adherence to the requirement that a

board of supervisors only be bound by a contract entered upon its

minutes”) and Warren County Port Comm’n v. Farrell Constr., 395

F.2d 901, 904 (5th Cir. 1968) (describing the Mississippi

requirement as “stringent”).

This requirement applies not only to contract formation, but

to contract modification as well. Farrell Constr., 395 F.2d at

903-04 (“The only permissible method for the alteration of a

contract with a board of supervisors is by a subsequent order

entered on its minutes”) (citing Lamar County v. Talley & Mayson,

77 So. 299 (Miss. 1918). Moreover, in Butler, the Mississippi

Supreme Court held that the assignment of contract proceeds from a

general contractor (who had contracted with the board) to a

subcontractor (who had contracted only with the general contractor)

had effectuated a contract alteration, rendering the assignment

invalid because its approval had not been spread upon the minutes

30
of the board. Butler, 659 So.2d at 580–81.

Applying these principles to our facts, we find no evidence of

a valid assignment of the HAP contracts from the Mitchell Company

to Urban Developers. Following the court in Butler, we hold that

the minutes requirement does apply to the purported assignment

here. For in Butler, the court held that an assignment of a right

to mere proceeds was a contractual modification that implicated the

minutes requirement, a closer question, we believe, than the

assignment at issue here, where the Mitchell Company purported to

assign both its rights and duties under the HAP contracts to Urban

Developers.

Moreover, there is no evidence spread upon the minutes of the

MRHA’s board of commissioners that they approved the assignment.

Not only was there undisputed testimony at trial in this respect,

but there was also undisputed testimony that the Board had never so

much as made reference to the HAP contracts during the relevant

time period. In fact, the only action taken by the board that

affected the HAP contracts was the resolution approving the Fiscal

Year 2002 budget, on July 15, 2001, which declined to request

further funding from HUD for those contracts.

Urban Developers argues in response that, even if the

assignment is legally void, the Board should be estopped in equity

from denying it.12 Urban Developers notes that the officers of the

12
The jury was charged that a contract could be established
either by a signed writing or by an oral agreement or by

31
MRHA made oral promises that the Mod Rehab contracts could be

assigned to Urban Developers, and that, after the transfer, the

MRHA continued to make rent subsidy payments to “Town Creek” and to

demand compliance with the federal housing quality standards.

Finally, Urban Developers notes that during the rental dispute, all

letters from the MRHA were addressed to its principle member,

Shahid Shaikh.

The general rule, however, is that “[s]uch contracts when so

entered upon the minutes may not be varied by parol nor altered by

a court of equity.” Farrell Constr., 395 F.2d at 904 (emphasis

added) (citing McPherson v. Richards, 98 So. 685 (Miss. 1924)).

The plaintiff’s invocation of equities to meet the “spread upon the

minutes” requirement is usually prohibited, in part, because “each

person, firm or corporation contracting with a board of supervisors

is responsible to see that the contract is legal and properly

recorded on the minutes of the board.” Thompson, 352 So.2d at 797;

see also id. at 798 (“It was the responsibility of the plaintiff to

see that the contract was properly recorded on the minutes”). The

Colle Towing case is often cited as an example of the harsh

application of Mississippi’s spread on minutes requirement, equity

notwithstanding. There, the Harrison County Board of Supervisors’

“equitable estoppel” and the charge defined equitable estoppel.
In answer to interrogatory 4 it found that “the contracts were in
effect between the Housing Authority and Urban Developers, LLC at
the time of the flood;” and, in answer to interrogatory 5, it
found “For Plaintiff” on “Plaintiff’s breach of contract claim
against the Housing Authority.”

32
president entered into an oral contract (later conceded to be

invalid) with Colle Towing to perform emergency repairs on a

drawbridge across the back bay of Biloxi. The board subsequently

ratified the oral contract upon its minutes and began partial

payment. After a dispute arose over the amount due, Colle Towing

sued the Board in quantum meruit13 and the district court dismissed.

The Supreme Court of Mississippi affirmed, holding that:

“It has been repeatedly held in this State that a board
of supervisors can contract and render the county liable
only by a valid order duly entered upon its minutes, that
all persons dealing with a board of supervisors are
chargeable with knowledge of this law, that a county is
not liable on a quantum meruit basis even though it may
have made partial payments on a void oral contract, and,
moreover, that in such case there is no estoppel against
the county.”

Colle Towing, 57 So.2d at 172 (citations omitted) (emphasis added).

More recently, the Mississippi Supreme Court again declined to

estop a public board, this time a public utility district. Rawls

Springs Utility District v. Novak, 765 So.2d 1288, 1292 (Miss.

2000). The president and chief executive officer of the utility

district, Bryant, had entered into an oral agreement with a

13
The Supreme Court of Mississippi has held that claims
arising in quantum meruit are equitable in nature, Poole v. Gwin,
Lewis & Punches, LLP, 792 So.2d 987, 991 (Miss. 2001), and in
this case we are bound by the court’s holding. We note,
however, that this is a question on which reasonable chancellors
may disagree. See Webb v. B.C. Rogers Poultry, Inc., 174 F.3d
697, 704 (5th Cir. 1999) (holding, over a dissent by Judge
Politz, that quantum meruit arises in law).

33
developer, Novak, for the utility district’s maintenance staff to

install thirty-two water meters at Novak’s trailer park. Id. at

1290. Bryant and Novak agreed to a price of $50 per installation,

an agreement which was contrary to, and purported to modify, the

utility district’s regulations, which provided for a charge of $300

per installation. Id. During the following six years, the utility

district billed Novak thirty-two times at the $50 rate, and Novak

promptly made payment.

When the district board became aware of the oral agreement,

they demanded back-payment from Novak for the already-installed

meters. The Supreme Court of Mississippi reversed the chancellor’s

ruling that the board was estopped from asserting a claim for back

payment, holding that:

“Bryant, and not the District Board, properly speaking
through its minutes, entered into the subject agreement
with Novak. Although Bryant may be said to be estopped
from asserting a claim inconsistent with his
representation to Novak, the District Board itself never
spoke through its minutes to authorize meter
installations for $50. The District Board has not
changed its position or done other acts to justify the
imposition of equitable estoppel. The District Board is
not attempting to deny what it previously induced another
party to believe and take action on. Nor is the District
Board guilty of acts or declaration designed to induce
another to alter his position injurious to himself.”

Id. at 1292.

Urban Developers’ best case is Cmty Extended Care Ctrs. v. Bd.

of Supervisors for Humphreys County, a case in which the

34
Mississippi Court of Appeals equitably estopped a county board of

supervisors from arguing that the “technical omission” of not

having the lease contract itself “spread across the minute book”

should invalidate the lease contract. 756 So.2d 798, 804 (Miss.

App. 1999).14 In that case, Community Care Extended Centers (CECC)

offered to lease a nursing home from the Humphreys County Board of

Supervisors. The Board then responded to the offer with a detailed

resolution, reflected in the minutes, describing the property to be

leased and authorizing the president of the Board to execute that

specific lease. In accordance with the resolution, a 20-year lease

was signed between the president of the Board and CECC. “The lease

contract was filed in the land records of the chancery clerk. The

minute book and records of the board of supervisors are maintained

by the chancery clerk.” Id. at 802. Seven years later, on two

separate occasions, the Board expressly acknowledged the existence

of the lease contract with CECC by approving, upon its minutes,

detailed amendments to the lease. Six years after the amendments,

the Board notified CECC that it considered the lease contract void,

14
Urban Developers also cites a line of cases that broadly
applies equitable estoppel against public boards. See, e.g., Bd.
of Educ. of Lamar County v. Hudson, 585 So.2d 683, 688 (Miss.
1991) (holding that a public board “may be equitably estopped
under the proper circumstances”). These cases, however, are not
controlling here, as they do not involve the strict Mississippi
minutes requirement, but instead simply permit equitable estoppel
to be enforced against a board in other contexts, for example, as
through the doctrine of after-acquired title. E.g., Oktibbeha
County Bd. of Educ. v. Town of Sturgis, 531 So.2d 585, 589 (Miss.
1988).

35
threatening to repossess the nursing home unless CECC agreed to

renegotiate.

The court of appeals first held that the minutes requirement

had been satisfied, explaining that “the lease contract was entered

sufficiently into the Board’s minutes to bind the Board to its

terms and conditions.” Id. at 801. The court explained, “Looking

at the minutes of the Board throughout the thirteen year period the

lease contract has been in effect, we find sufficient evidence of

the Board’s intent to be bound by the lease contract.” Id. at 802.

And further, “In this case, there was a substantial entry [in the

minutes]—a resolution that authorized the president to execute ‘the

original lease’ that inferentially was physically presented to the

Board and was recorded less than two weeks later.” Id. at 803.

Then, in the alternative, the court applied equitable estoppel

against the Board, holding that the resolutions passed by the

board, as detailed above, were sufficient to estop the Board from

denying its existence. Id. at 804. In conclusion, the court of

appeals noted that although “no estoppel may be enforced ‘against

the state or its counties where the acts of their officers were

unauthorized,’ . . . the resolution entered on the Board minutes

shows the supervisors unanimously approved the lease contract with

CECC and authorized the Board president to sign the lease contract

on behalf of the Board.” Id. at 804.

The facts of our case far more closely resemble Novak than

36
CECC. There is no evidence that the MRHA’s board of commissioners

even knew of the existence, let alone approved, the assignment from

the Mitchell Company to Urban Developers (or any other assignment).

The only evidence in the record that supports Urban Developers’

position, is a resolution passed by the board of commissioners and

entered upon its minutes in 1984, sixteen years before Urban

Developers was even formed, which states “RESOLVED, that the

Chairman and Executive Director of the Authority are hereby

authorized to execute all documents necessary to participate in the

Rental Rehabilitation Program.” MRHA Minutes of the Board of

Commissioners 287 (Feb. 15, 1984).

This resolution is far less connected to the matter in

question than the three resolutions upon which the court of appeals

in CECC relied to enforce equitable estoppel against the Humphreys

County board of supervisors. There, the resolutions authorized the

president to execute a specific document, relating to a specific

transaction. Then, when amendments to the lease contract were

necessary, the board approved those amendments through resolutions

spread upon their minutes. Here, where a contractual modification

was also necessary to assign the rights and duties of the Mitchell

Company to Urban Developers, the plaintiff never sought approval of

the Board, and instead relied on the oral promises only of Wilson

and Murphy.

In this respect, our case resembles Novak. For although it

might be said that Wilson and Murphy can be estopped from asserting

37
a claim inconsistent with their representation to Urban Developers,

the Board itself “never spoke through its minutes to authorize” the

assignment. Novak, 765 So.2d at 1292. The Board “has not changed

its position or done other acts to justify the imposition of

equitable estoppel.” Id. The Board “is not attempting to deny

what it previously induced another party to believe and take action

on.” Id. Nor is the Board “guilty of acts or declaration designed

to induce another to alter his position injurious to himself.” Id.

Accordingly, we reverse the district court’s denial of the

MRHA’s motion for judgment as a matter of law on Urban Developers’

breach of contract claim. The assignment of the HAP contracts from

the Mitchell Company to Urban Developers was void.

C. Federal Takings Claims against the MRHA and Murphy

Urban Developers asserts that when the MRHA defendants issued

vouchers to the Town Creek residents, and then arbitrary forced the

tenants to use the vouchers elsewhere, the result was “the breaking

of the leaseholds between the tenants and the plaintiff, which

resulted in the taking of those [lease] contracts.” Because Urban

Developers has yet to be denied compensation for this taking by the

state of Mississippi (principally because they have not sought such

compensation through Mississippi procedures), we hold that these

federal takings claims are not yet ripe for review.

As discussed above, because a violation of the Fifth

Amendment’s Takings Clause does not occur until just compensation

is denied, Williamson County requires the plaintiff to have sought

38
compensation for the alleged taking through whatever adequate

procedures the state provides. Williamson County, 105 S.Ct. at

3120. Furthermore, this court has held that the unsettled status

of state law does not render the available procedures inadequate;

that is “it must be certain that the state would deny that claimant

compensation were he to undertake the obviously futile act of

seeking it.” Samaad, 940 F.2d at 934. On this issue, the plaintiff

bears the burden of persuasion. Id.

Urban Developers again has not discharged that burden here.

The MRHA clearly wields the power of eminent domain, Miss. Code

Ann. § 43-33-19, and the State of Mississippi has long provided for

actions in inverse condemnation. See, e.g., Wright v. Jackson Mun.

Airport Auth., 300 So.2d 805 (Miss. 1974); City of Gulfport v.

Anderson, 554 So.2d 873 (Miss. 1989). Moreover, since the

Mississippi courts have interpreted Mississippi’s Takings Clause in

light of the federal Takings Clause, the courts of Mississippi also

provide plaintiffs with a cause of action for regulatory takings.

See, e.g., Walters v. City of Greenville, 751 So.2d 1206, 1210–11

(Miss. App. 1999) (citing Penn Central with approval); Tippitt v.

City of Hernando, 909 So.2d 1190, 1193–94 (Miss. App. 2005). It is

an unsettled question, of course, the extent to which many

jurisdictions will recognize as protected by the Takings Clause a

39
property right in contract,15 yet the plaintiff has identified

nothing, and we have found nothing, to suggest that Mississippi law

“unquestionably would afford them no remedy.” Samaad, 940 F.2d at

935. Accordingly, the plaintiff’s federal takings claims against

the MRHA and Murphy are unripe, and the district court was without

jurisdiction to consider them.

D. State Takings Claims against the MRHA and Murphy

The plaintiff’s state takings claims are a different matter.

We reach the merits of the plaintiff’s state takings claims,

because, unlike the federal takings claims just discussed,

Williamson County does not directly apply, and, unlike the state

takings claims against the City of Jackson, the relevant government

entity here has made a final decision as required by Mississippi

law.16

15
See United States v. Sec. Indus. Bank, 103 S.Ct. 407,
410–412 (1982); Eastern Enters. v. Apfel, 118 S.Ct. 2131,
2156–58 (1998) (Kennedy, J., concurring in the judgment and
dissenting in part). See also Thomas W. Merrill, The Landscape
of Constitutional Property, 86 Va. L. Rev. 885, 990-96 (2000).
16
This case is distinguishable from Samaad, where we
dismissed a state takings claim for lack of jurisdiction, holding
that such a claim could not be used to ripen a federal takings
claim when brought in the same suit. Samaad, 940 F.2d at 934.
That holding rested, in part, upon the explanation that once the
federal takings claim was dismissed as unripe, the court lost its
sole basis of supplemental jurisdiction. 28 U.S.C. § 1367(a)
(2005). In this case, however, the plaintiffs have stated a
minimally colorable federal claim of deprivation of property
without due process, invoking this court’s federal question
jurisdiction and providing an independent basis for the exercise
of supplemental jurisdiction over the state takings claims. We
see no reason to treat these state takings claims as different

40
 We nevertheless hold that the MRHA’s actions did not effect a

taking, regulatory or otherwise. The MRHA did not force the Town

Creek tenants to abandon their leases, nor can it be said that the

MRHA’s issuance of vouchers interfered with Town Creek’s reasonable

investment-backed expectations. The tenants were simply given an

option to either accept the voucher and use it elsewhere, or to

decline the voucher and remain under their leases at Town Creek.

It is, in fact, undisputed that a few tenants did remain at Town

Creek, and that the MRHA continued to subsidize their leases

through the existing Mod Rehab program. We find that, as a matter

of law, the evidence does not suffice to show that the tenants’

leases were taken by the MRHA’s issuance of housing-choice vouchers

in the aftermath of the flood. Accordingly, we reverse the

district court’s denial of the MRHA and Murphy’s motion for

judgment as a matter of law on the Mississippi takings claims.

E. State and Federal Procedural Due Process Claims against the
MRHA and Murphy

Plaintiffs seeking protection under the federal Due Process

Clause must first establish that they have a protected property

interest. See Bd. of Regents of State Colleges v. Roth, 92 S.Ct.

2701, 2709 (1972); see also American Mfrs. Mut. Ins. Co. v.

from any other state claim. See Vulcan Materials Co. v. City of
Tehuacana, 238 F.3d 382, 385–86 (5th Cir. 2001). But see
Koscielski v. City of Minneapolis, 435 F.3d 898, 903 (8th Cir.
2006) (dismissing both federal and state takings claims as unripe
under the “adequate state procedures” prong of Williamson County,
despite the presence in the lawsuit of an independent basis for
supplemental jurisdiction).

41
Sullivan, 119 S.Ct. 977, 989 (1999) (“The first inquiry in every

due process challenge is whether the plaintiff has been deprived of

a protected interest in ‘property’ or ‘liberty.’”). The

Mississippi Due Process Clause, although worded differently from

the Federal version, is implemented identically. Compare U.S.

Const. amend. XIV with Miss. Const. Art. III, § 14; see also Tucker

v. Hinds County, 558 So.2d 869, 873 (Miss. 1990).

We must first, then, identify which of the plaintiff’s

protected property interests, if any, were violated without due

process, and, because the Constitution protects rather than creates

such property interests, their existence must be determined by

reference to “‘rules or understandings that stem from an

independent source such as state law.’” Phillips v. Washington

Legal Found., 118 S.Ct. 1925, 1930 (1998) (quoting Roth, 92 S.Ct.

at 2709); see also Bishop v. Wood, 96 S.Ct. 2074, 2077 (1976)

(“[T]he sufficiency of the claim of entitlement must be decided by

reference to state law.”).

Urban Developers alleged that three unique property interests

were violated by the MRHA. First, they alleged that the MRHA

deprived Urban Developers of its property interest in the HAP

contracts when the MRHA breached those contracts by failing to

conduct formal inspections and allowing the plaintiff time to make

repairs. Because we have held, supra, that Urban Developers had no

such contractual rights under Mississippi law, Urban Developers

42
could not have been deprived of the HAP contracts (or rights

thereunder) without due process.

Urban Developers’ second due process claim was that the MRHA

deprived Urban Developers of its property interest in the ACC

contract between the Housing Authority and HUD, as well as its

interest in HUD regulations which the ACC contracts reference.

Because we agree with the cases which hold that landlords are not

third-party beneficiaries of the ACC contract, and because this

court has already held that landlords are not within the zone-of-

interest of the HUD regulations, Urban Developers could not have

been deprived without due process of any interest in the ACC

contracts or the relevant HUD regulations.17

17
Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423,
1436 (Fed.Cir. 1997) (affirming the trial court’s conclusion that
“the third party beneficiaries of the ACCs are the tenants and
not the property owners”); Ashton v. Pierce, 716 F.2d 56, 66
(D.C.Cir. 1983) (“[I]t is difficult to imagine any purpose for
the [Annual Contribution] Contract other than to benefit the
tenants of public housing.”), modified on other grounds, 723 F.2d
70 (D.C.Cir. 1983); Katz v. Cisneros, 16 F.3d 1204, 1210
(Fed.Cir. 1994) (“If there is a third party beneficiary at all,
it is probably the low-income tenants . . .”); see also Gomez v.
Hous. Auth. of City of El Paso, 805 F.Supp. 1363, 1368
(W.D.Tex.1992) (“‘[T]he purpose of the [ACC] is to benefit public
housing tenants . . . .’”) (quoting Henry Horner Mothers Guild v.
Chicago Hous. Auth., 780 F.Supp. 511, 516 (N.D.Ill.1993)), aff’d
20 F.3d 1169 (5th Cir. 1994) (table)
Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356,
363 (5th Cir. 2006) (“Congress plainly expressed its intent to
provide housing assistance for the benefit of the low-income
families participating in the program; it would be absurd to
treat the voucher program as a landlords’ relief act!”); see also
42 U.S.C. 1437(a)(1)(C) (2001) (“It is the policy of the United
States . . . to vest in public housing agencies that perform
well, the maximum amount of responsibility and flexibility in
program administration, with appropriate accountability to public

43
 Finally, Urban Developers’ third due process claim was that

the MRHA deprived them of their interest in their lease contracts

with the Town Creek tenants. Because we have held, supra, that

Urban Developers failed to pursue a post-deprivation remedy, which

they have not shown to be unavailable under Mississippi law, we

reject this final due process claim as unripe. See Liberty Mut.

Ins. Co. v. Louisiana Dep’t of Ins., 62 F.3d 115, 118 (5th Cir.

1995) (“The second claim, denial of procedural due process, falls

with the [takings] claim. The procedural due process claim fails

because Liberty Mutual has not demonstrated that Louisiana does not

offer a post-deprivation remedy . . .”). Accordingly, we reverse

the district court’s denial of the MRHA and Murphy’s motion for

judgment as a matter of law on the two procedural due process

claims relating to an alleged property interest in the Mod Rehab

Contract and the Annual Contribution Contract. Because we lack

subject matter jurisdiction, we dismiss without prejudice the

procedural due process claim relating to a property interest in the

lease contracts with the Town Creek tenants.

F. The Mississippi Tort Claims Act

The jury found the MRHA, Murphy and Wilson negligent under the

Mississippi Tort Claims Act for accepting Mayor Johnson’s erroneous

statements about the impending condemnation of Town Creek and for

housing residents, localities, and the general public.”)
(emphasis added).

44
relying on those statements (without conducting an investigation

into their veracity) to issue housing choice vouchers to the Town

Creek tenants. The jury considered, yet rejected, an affirmative

defense that exempts governmental entities and their employees from

tort liability “based upon the exercise or performance [of] . . .

a discretionary function or duty . . . whether or not the

discretion be abused.” Miss. Code Ann. § 11-46-9(d) (2001). We

find no conflict in substantial evidence as to whether the issuance

of housing vouchers during a declared state of emergency qualifies

as a discretionary act under the MTCA, and we accordingly reverse

the district court’s denial of the MRHA, Wilson’s and Murphy’s

motion for judgment as a matter of law on this question.

“Waiver of a state’s sovereign immunity, like waiver of any

constitutional right, is strictly construed in favor of the holder

of the right. . . . [T]he MTCA’s exemptions to Mississippi’s waiver

should be liberally construed in favor of limiting liability.” In

re Foust, 310 F.3d 849, 864 (5th Cir. 2002) (citations omitted).

“The basis for the immunity given to government officials is in the

inherent need to promote efficient and timely decision-making

without fear of liability. This . . . works to encourage free

participation and hinder fear that goes with risk-taking situations

and the exercise of sound judgment.” Mississippi Dep’t of Transp.

v. Cargile, 847 So.2d 258, 268 (Miss. 2003).

The Mississippi Supreme Court has adopted a two-part analysis

for determining when governmental conduct is discretionary: “(1)

45
whether the activity involved an element of choice or judgment; and

if so, (2) whether the choice or judgment in supervision involves

social, economic or political policy alternatives.” Bridges v.

Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.

2001); see also City of Jackson v. Powell, 917 So.2d 59, 73 (Miss.

2005). Conversely, the court has held that governmental conduct is

ministerial, and thus not entitled to immunity, if the conduct is

“imposed by law, and its performance is not dependent on the

employee’s judgment.” Cargile, 847 So.2d at 267.

A wide variety of government conduct has been held to involve

the implementation of social, economic or political policy,

including the manner in which a police department supervises,

disciplines and regulates its police officer, City of Jackson v.

Powell, 917 So.2d 59, 74 (Miss. 2005); the decision to grant or

deny parole, Doe v. State ex rel. Mississippi Dep’t of Corr., 859

So.2d 350 (Miss.2003); the placement or non-placement of traffic

control devices or signs, Barrentine v. Mississippi Dep’t of

Transp., 913 So.2d 391 (Miss. App. 2005); the acts or omissions of

high school football coach which caused a player to suffer

heatstroke during practice, Harris ex rel. Harris v. McCray, 867

So.2d 188 (Miss. 2003); and the decision of emergency medical

personnel to use a “load and go” approach on an expectant mother.

Sanders v. Riverboat Corp. of Mississippi-Vicksburg, 913 So.2d 351

(Miss. 2005).

46
 On the other hand, where the law expressly proscribes certain

conduct, the government official has no discretion to engage in

that conduct, and, likewise, where the law expressly requires

certain conduct, an official may not, in the exercise of

discretion, abstain. See, e.g., City of Jackson v. Lipsey, 834

So.2d 687 (Miss. 2003) (where an officer failed to use his siren,

as required by law, in response to an emergency dispatch, the

discretionary exception was not available); Coplin v. Francis, 631

So. 2d 752, 755 (Miss. 1994) (where a governmental entity had

failed to build a bridge to certain specifications, as required by

statute, the discretionary exception was not available).

Furthermore, even when the government official is acting in

accordance with a statutory command, such that the official is

implementing policy, not making it, the act is ministerial and not

entitled to the discretionary exception. See Barrett v. Miller,

599 So. 2d 559, 568 (Miss. 1992) (the good faith execution of a

search warrant is a ministerial act, and not entitled to the

discretionary exception).

Applying these principles to our facts, we find no evidence

that either Murphy or Wilson violated any statutory duties by

issuing housing-choice vouchers to the tenants of Town Creek.

Although trial testimony elicited many instances of Murphy’s (or

Wilson’s) violation of HUD regulations, these violations related

only to the administration of the Mod Rehab program. Indeed, Urban

Developers’ expert on HUD regulations acknowledged that the federal

47
regulations were silent on the “issuing en masse of housing choice

vouchers to everyone in a complex where some of the units have been

damaged by natural disaster.” Their expert also acknowledge that

housing authorities may “adopt provisions in their administrative

plans to help families affected by natural disasters.”

In the absence of regulations to the contrary, Congress has

vested public housing authorities with the “maximum amount of

responsibility and flexibility in program administration.” 42

U.S.C. § 1437. The MRHA board has furthermore vested the executive

director with the discretion in an emergency to issue (or not

issue) vouchers, a discretion that squarely implicates social,

economic, and political policy considerations. Indeed, granting

such immunity for exercise of discretion during a declared state of

emergency is consistent with the aims of the MTCA, which works to

“hinder fear that goes with risk-taking situations,” and to

encourage “timely decision-making without fear of liability.”

Cargile, 847 So.2d at 268.18

We find no conflict of substantial evidence on the question of

18
Although not argued by the defendants on appeal, the MRHA
and Murphy also likely would qualify for immunity under Miss.
Code Ann. § 11-46-9(g), which grants immunity against any claim
“[a]rising out of the exercise of discretion in . . . the
provision of adequate governmental services,” id., and well as
Miss. Code Ann. § 11-46-9(h), which grants immunity against any
claim “[a]rising out of the issuance . . . of . . . any
privilege, . . . unless such issuance . . . . is of a malicious
or arbitrary and capricious nature . . . .” Id.; see also Jim
Fraiser, A Review of the Substantive Provision of the Mississippi
Governmental Immunity Act, 68 Miss. L.J. 703, 791–98 (1999).

48
whether Murphy’s and Wilson’s actions were discretionary. Their

actions were exercises in judgment involving social policy and they

and MRHA were therefore entitled to immunity from tort liability in

respect thereto.

CONCLUSION

For the foregoing reasons, the district court’s denial of the

MRHA, Wilson and Murphy’s motion for judgment as a matter of law

with respect to the breach of contract claim, the federal and state

due process claims relating to Urban Developers’ alleged property

interest in the HAP and Annual Contribution contracts, the

Mississippi law takings claim, and the negligence claim is REVERSED

and REMANDED for entry of judgment in favor of those respective

defendants. All other claims of Urban Developers on which it

prevailed below, as against the City, MRHA, Wilson and Murphy, or

any one or more of them, are DISMISSED without prejudice as unripe.

49