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