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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20686
_____________________
SIMI INVESTMENT COMPANY INC
Plaintiff - Appellee
v.
HARRIS COUNTY TEXAS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
June 28, 2001
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER,
Circuit Judges.
OPINION ON PETITION FOR REHEARING EN BANC
(Opinion December 21, 2000 (5th Cir. 2000) 236 F.3d 240)
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
No member of the panel nor judge in regular active service of the
court having requested that the court be polled on Rehearing En

Banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for
Rehearing En Banc is DENIED.
We take this opportunity to address the concern expressed by
Harris County as to the scope of the substantive due process
holding in this case. In John Corp. v. City of Houston, this
court stated that "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." 214 F.3d 573, 583 (5th Cir. 2000). In the majority of
cases involving landowner complaints, substantive due process is
not the appropriate avenue of relief. Our Takings Clause
jurisprudence cannot be circumvented by artful pleading of
substantive due process claims. Except in the rare cases of
deprivations of property based on, for example, illegitimate and
arbitrary governmental abuse,1 vague statutes,2 or retroactive
statutes,3 the takings analysis established by the Supreme Court
1
See Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240,
249 (5th Cir. 2000); DeBlasio v. Zoning Bd. of Adjustment, 53
F.3d 592, 600-01 (3d Cir. 1995).
2
See John Corp. v. City of Houston, 214 F.3d 573, 585
(5th Cir. 2000).
3
In Eastern Enterprises v. Apfel, the Supreme Court held
unconstitutional a provision of the Coal Industry Retiree Health
Benefit Act of 1992, 26 U.S.C. § 9706. See 524 U.S. 498, 538
(1998). The Court split 4-1-4, with five Justices concluding
that a substantive due process analysis, and not a Takings Clause
analysis, should be used to determine the constitutionality of
the statute, which had retroactive effect. See id. at 547
(Kennedy, J., concurring in the judgment and dissenting in part)
(determining that "the case is controlled not by the Takings
2

and this circuit should control constitutional violations
involving property rights that have been infringed by
governmental action.4

Clause but by well-settled due process principles respecting
retroactive laws."); see id. at 554 (Breyer, J., dissenting)
(agreeing with Justice Kennedy and stating "at the heart of the
[Takings] 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.").
4
See, e.g., Palazzolo v. Rhode Island, --- S. Ct. ----,
2001 WL 721005 (June 28, 2001); Williamson County Reg'l Planning
Comm'n v. Hamilton Bank, 473 U.S. 172, 186-94 (1985); Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984); Agins v. City
of Tiburon, 447 U.S. 255, 260 (1980); Penn Cent. Transp. Co. v.
New York City, 438 U.S. 104, 128 (1978); Samaad v. City of
Dallas, 940 F.2d 925, 936-37 (5th Cir. 1991); see also, e.g.,
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 702-03 (1999); Dolan v. City of Tigard, 512 U.S. 374, 386-88
(1994); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 834 (1987).
3