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