In this case, plaintiffs contend that defendants' running of two grand prix automobile races in a public park near their homes effected a taking of their property without just compensation, deprived them of property without due process of law, denied them equal protection of the laws, and violated state law. The district court entered summary judgment for defendants on each federal law claim except for the equal protection claim, with respect to which it ordered limited discovery regarding one defendant's claim of qualified immunity. We affirm the court's grant of summary judgment but reverse its denial of qualified immunity and concomitant discovery order and remand for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND.

A. No. 90-1099, Samaad v. City of Dallas.

From July 5-8, 1984, defendant Dallas Grand Prix Co. (Dallas Grand Prix) held a series of automobile races at Fair Park, a public park belonging to the defendant City of Dallas (City). Fair Park is the site of the Cotton Bowl and the Texas State Fair. Defendant State Fair of Texas (State Fair), a non-profit corporation, manages Fair Park pursuant to a longstanding agreement with the city. State Fair leased Fair Park to Dallas Grand Prix for the days of the race.

Plaintiffs1 reside in the neighborhood surrounding Fair Park. In their complaint, they contend that noise from the races impaired their use and enjoyment of their homes. They also assert that they suffered various physical and psychological ailments as a result of the races.

The plaintiffs seek recovery for their alleged injuries pursuant to 42 U.S.C. Sec. 1983, asserting claims under the Due Process and Takings Clauses of the Fifth Amendment. They add pendent2 state law claims under Texas common law. The district court granted defendants' motion for summary judgment with respect to the takings and due process claims and dismissed the pendent state law claims without prejudice. Samaad v. City of Dallas, 733 F. Supp. 239 (N.D.Tex.1990).

B. Nos. 90-1721 and 90-1722, Pierce v. City of Dallas.

The complaint in this case focuses upon similar grand prix races held from April 29 through May 1, 1988, at Fair Park. Plaintiffs brought suit against the city, Frank Wise (a city official), Auto Racing of Dallas, Inc., and Sports Car Club of America, Inc.

Unlike the Samaad plaintiffs, the Pierce plaintiffs charge the defendants with racial discrimination, alleging that defendants would have acted differently had the neighborhoods surrounding Fair Park been predominantly white. According to the complaint, most of the people living near Fair Park are "members of racial minority groups." The complaint does not allege that defendants selected Fair Park for the race over a suitable location in a predominantly white neighborhood; plaintiffs do not even claim that another appropriate site exists.

Plaintiffs nonetheless seek recovery under the Equal Protection Clause, the Due Process Clause, the Takings Clause, and state and local law, again using section 1983 as the procedural vehicle for the federal claims. The district court granted summary judgment for defendants on all the federal claims except the equal protection claim, with respect to which the court stated that it was unable to rule on Wise's assertion of qualified immunity without discovery into his alleged discriminatory intent.

C. The Scope of the Appeals.

Desiring to appeal simultaneously from their defeats on the takings and due process claims in both Samaad and Pierce, the Pierce plaintiffs successfully sought a final judgment under Fed.R.Civ.P. 54(b). Because the equal protection claim remained pending, plaintiffs would not have been able to appeal the otherwise interlocutory order denying their other federal law claims without the rule 54(b) judgment (or some other special circumstance, such as permission to take an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b)). The Samaad defendants now argue that a rule 54(b) judgment was unavailable to the district court and that thus we are without jurisdiction.

In Samaad (No. 90-1099), the remaining appellant, plaintiff Abdul Samaad, appeals the district court's entry of summary judgment for defendants on his federal law claims, as do the Pierce plaintiffs. The defendants argue not only that the district court correctly granted summary judgment, but also that the takings claim is unripe. Defendant Frank Wise brings his own appeal in No. 90-1722, arguing that the court erred in ordering discovery with respect to the equal protection claim. The Pierce plaintiffs contend that we are without jurisdiction over Wise's appeal because the court's discovery order is not a "final judgment" under 28 U.S.C. Sec. 1291. Accordingly, we must address five main issues: (1) whether a rule 54(b) judgment was available to the district court; (2) whether the "taking for a public use without just compensation" claim is ripe for adjudication; (3) whether the court properly granted summary judgment with respect to the takings and due process claims; (4) whether we have jurisdiction over Wise's appeal; and (5) whether the court erred in rejecting Wise's assertion of qualified immunity and in ordering discovery.

II. AVAILABILITY OF THE RULE 54(b) JUDGMENT.

In their complaint, the Pierce plaintiffs seek recovery under a variety of theories, alleging that defendants (1) denied them equal protection of the laws; (2) deprived them of property without due process of law; (3) took their property without just compensation; and (4) transgressed state law. The Pierce complaint differs from that in Samaad insofar as the former includes an equal protection claim.

Defendants successfully moved for summary judgment with respect to the takings and due process claims. However, the court declined to grant summary judgment on the equal protection claim, instead permitting plaintiffs to conduct discovery into Wise's alleged discriminatory intent. As the district court also had granted the Samaad defendants summary judgment, the Pierce plaintiffs desired to appeal these two defeats together. However, the order in Pierce remained interlocutory,3 for the equal protection claim against Wise and Dallas still was pending.

The Pierce plaintiffs therefore sought a final judgment under rule 54(b). The district court granted the motion and entered judgment, thus allowing the plaintiffs simultaneously to appeal both Samaad and Pierce. The city and Wise moved to dismiss the appeal (No. 90-1721), arguing that the court's grant of a final judgment under rule 54(b) was improper.4 An administrative panel of this court denied the motion without prejudice but suggested that this panel revisit the issue.

Rule 54(b), entitled "Judgment upon Multiple Claims or Involving Multiple Parties," provides in pertinent part,

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Thus, a court may grant a rule 54(b) judgment only if "more than one claim for relief is presented in an action" or "multiple parties are involved." The district court apparently granted the instant rule 54(b) motion on the ground that the action presented multiple claims. The city and Wise disagree and argue that the court could not properly invoke rule 54(b).5

We note initially that the proper method for reviewing a rule 54(b) judgment is not well established. The language of the rule lends itself to two distinct challenges to a rule 54(b) judgment predicated upon the existence of multiple claims. First, an appellee seeking dismissal of an appeal could argue that the complaint does not present "more than one claim for relief." This is a legal question that could be raised sua sponte by a court of appeals concerned that it might not have jurisdiction. The court of appeals would review de novo the district court's finding of separate claims.

Second, an appellee could contend that, assuming the complaint presents multiple claims, the district court nonetheless abused its discretion6 in entering judgment. In such a situation, the court of appeals would consider whether the district court abused its discretion in determining whether "there [was] no just reason for delay." If the appellee did not challenge the district court's exercise of discretion (as opposed to its finding of multiple claims), the court of appeals could not consider the issue sua sponte, for it would not go to the appellate court's jurisdiction.

One commentator has suggested that some courts have conflated the two inquiries. See 6 James W. Moore et al., Moore's Federal Practice p 54.33 at 54-194 (2d ed. 1991). Similarly, in Local P-171, Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir.1981) (hereinafter Meat Cutters ), Judge Wisdom, sitting by designation, opined as follows:

Indeed, since the exercise of the district court's discretion in granting Rule 54(b) certification already involves a balancing of the value of accelerated repose to the litigants against the potential inconvenience to the appeals court posed by overlap between certified claims and noncertified claims, and since that determination can be reviewed by the appellate courts for abuse of discretion, it is hard to see what additional function the formal characterization of claims as 'separate' or 'identical' serves. [Footnote omitted.]

Despite the attractiveness of this approach, we nonetheless feel constrained to adhere to our prior view that a review of a rule 54(b) judgment involves at least two potential inquiries. In H & W Industries, 860 F.2d at 175, we analyzed the appellees' motion to dismiss the appeal as involving two separate questions.7 We also believe that this view better comports with the language of the rule, which patently contemplates both legal and discretionary inquiries.

Even if we are able to differentiate nicely between the legal and discretionary aspects of rule 54(b) judgments, a great deal of uncertainty nonetheless remains, for we must consider the unsettled question of what exactly is a "claim for relief."8 ] The most that can be said confidently about this question is that various courts focus upon different things but are reluctant to articulate hard-and-fast tests.9

Some courts concentrate on the facts underlying the putatively separate claims. For instance, in Jack Walters & Sons, 737 F.2d at 702, the court sought to define "claim for relief" in light of what it deemed to be rule 54(b)'s purpose: "to spare the court of appeals from having to keep relearning the facts of a case on successive appeals." Accordingly, it held that "if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes." Id.

Similarly, in Purdy Mobile Homes, 594 F.2d at 1316, the court rejected an argument that there was only one claim because some facts were common to all the theories of recovery. The fact that one claim required proof of facts different from those required to prove another claim rendered it "separate." Id.10 See also Gas-A-Car, 484 F.2d at 1105; 6 Moore et al., supra, p 54.33 at 54-194.11

Other courts have rejected this fact-bound test and have focused upon the possibility of separate recoveries under arguably separate claims. They have developed what one commentator has labeled a "legal rights test," under which common underlying facts do not preclude the existence of similar claims. 6 Moore et al., supra, p 54.33 at 54-196 n. 31 (discussing Tolson ).

Nonetheless, certain points of agreement emerge from the cases. For instance, "[i]t is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b)." Page, 585 F.2d at 339 (citing Edney v. Fidelity & Guar. Life Ins. Co., 348 F.2d 136, 138 (8th Cir.1965)).12 Although courts generally agree on these points, they do not fully reveal the contours of the phrase "claim for relief." And we are reluctant, at least in this case, to rush in where other courts fear to tread. Like them, rather than attempting to formulate a generally applicable definition, we take note of the foregoing "rules of thumb" and decide the case at hand.13

The equal protection and takings claims14 are separate partly because "the two grounds of recovery are not mutually exclusive." H & W Indus., 860 F.2d at 176. The distinct prayers for relief depend upon the violation of separable constitutional rights.

The heart of the Equal Protection Clause is its prohibition of discriminatory treatment. If a governmental actor has imposed unequal burdens based upon race, it has violated the clause. The extent of the burden imposed does not determine whether the clause has been violated. But whether a violation of the Takings Clause has occurred depends primarily upon the degree of the burden the government has imposed upon the claimant. We do not see any reason why an aggrieved plaintiff could not simultaneously recover for these separate violations, even though they arise out of the same general set of facts, assuming that there is no duplicate recovery for the same injury.

Were we to adopt the stance of those courts that have focused upon the facts underlying the putatively separate claims, we would conclude nevertheless that the equal protection and takings claims are separate for purposes of rule 54(b). Without question, each claim requires proof of facts that the other does not. More specifically, to prove an equal protection violation, the Pierce plaintiffs would have to show that defendants acted with the requisite discriminatory intent. By way of contrast, a plaintiff would have to prove a "taking" of his property to obtain recovery under the just compensation clause.

Accordingly, the plaintiffs presented separate claims for relief for purposes of rule 54(b). Therefore, a rule 54(b) judgment at least was potentially available to the district court. The city and Wise do not argue, and we do not find, that the district court abused its discretion in concluding that there was no just reason for delaying an appeal.15III. RIPENESS OF THE TAKINGS CLAIM.

A. Taking for Public Use.

The Takings Clause of the Fifth Amendment directs that "private property [shall not] be taken for public use, without just compensation." U.S. Const. amend. V. The Supreme Court has held that the clause applies to the states through the Fourteenth Amendment. See Chicago B. & Q.R.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897).

The municipal defendants argue that the takings claims in both Pierce and Samaad are not ripe16 because plaintiffs failed to seek just compensation in state court. A takings claim is not ripe until the claimant has unsuccessfully sought compensation from the state. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S. Ct. 3108, 3120, 87 L. Ed. 2d 126 (1985). In Williamson County, the Court reasoned as follows:

[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Sec. 1983 action.

Id. at 194 n. 13, 105 S. Ct. at 3120 n. 13 (emphasis in original). The Court concluded that Hamilton Bank's takings claim was not ripe because it had failed to utilize available state procedures.17 The Court implicitly qualified its requirement that takings claimants seek compensation in the state system: "[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 195, 105 S.Ct. at 3121 (emphasis added).

Claimants who have failed to seek compensation through available state procedures frequently argue that those procedures are "inadequate" and that resort thereto would have proven futile.18 In Williamson County, the Court did not elaborate on what it meant by "adequate" procedures. However, its discussion of the state procedures at issue in that case sheds some light on this question.

In describing Tennessee's inverse condemnation procedures, the Court noted that the state courts had interpreted the pertinent statute "to allow recovery through inverse condemnation where the 'taking' is effected by restrictive zoning laws or development regulations." Id. at 196, 105 S.Ct. at 3122. (The Williamson County plaintiff had alleged such a taking.) The Court thus implied that had the state courts not allowed recovery in such circumstances, the procedures would have been "inadequate." There is merit to the Court's implicit conclusion that the mere existence of some compensation mechanism does not necessarily render those procedures adequate.

Other cases illuminate the nature of "adequate" compensation procedures. A number of courts have held, for example, that the unsettled status of state law does not render the available procedures "inadequate." See, e.g., Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 505 n. 8 (9th Cir.1990); Del Monte Dunes, 920 F.2d at 1507; Estate of Himelstein, 898 F.2d at 576. These cases indicate that "inadequate" procedures are those that almost certainly will not justly compensate the claimant.

The Takings Clause itself justifies this conclusion. To violate the clause, the state must not only take someone's property but also deny him compensation. Accordingly, before a takings claim is ripe, the claimant must unsuccessfully seek compensation. Short of that, it must be certain that the state would deny that claimant compensation were he to undertake the obviously futile act of seeking it.

Because the Samaad and Pierce plaintiffs did not seek compensation under available state procedures, we must address their argument that such an effort would have been futile. Plaintiffs bear the burden of persuasion on this issue. Del Monte Dunes, 920 F.2d at 1506-07; Austin, 840 F.2d at 680; Norco Constr. v. King County, 801 F.2d 1143, 1146 (9th Cir.1986).

Before considering the adequacy of Texas's procedures, we address three preliminary contentions. Noting that the district court did not consider the ripeness issue, plaintiffs argue that "it would be inappropriate for this Court to decide, in the first instance, whether Texas does provide an adequate process to obtain relief." We disagree. Because ripeness, and hence federal court jurisdiction, turn on the adequacy of Texas's procedures, we may consider this question of law. Accord Austin, 840 F.2d at 680 n. 2 (considering adequacy of state remedies even though district court had not done so).

Plaintiffs also argue that defendants waived the ripeness issue by failing to bring it to the district court's attention early enough in the litigation. The court confronted and rejected an identical argument in Sinaloa Lake. In that case, the defendants waited over two years before raising the ripeness issue on the virtual eve of trial. 864 F.2d at 1480 n. 3. Nonetheless, the court concluded that laches cannot bar a Williamson County argument, as ripeness is a jurisdictional requirement that cannot be waived. Id. at 1480. We agree.19

Plaintiffs also contend that they complied with Williamson County by adding pendent state claims to their federal claims. They argue that the federal district court should consider the pendent state claim first; if it rejects the claim, then the federal takings claim becomes ripe.

We reject this argument for two reasons. First, it does not comport with the reasoning of Williamson County, in which the Court found the claims unripe because the plaintiff there "did not seek compensation through the procedures the State has provided for doing so." 473 U.S. at 194, 105 S.Ct. at 3120 (emphasis added) (footnote omitted). The Court added, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 195, 105 S.Ct. at 3121 (emphasis added). The local entity from which a plaintiff seeks recovery should be the one to deny just compensation.

Second, a federal district court could not exercise jurisdiction over a state law claim that is pendent to a claim over which the federal courts would have no jurisdiction. Assuming a takings claim were the only federal claim asserted in the complaint, the court could not exercise jurisdiction over the pendent state compensation claim, for the federal takings claim on which jurisdiction over the state claim would be contingent would not yet be ripe. The circularity of plaintiffs' suggested procedure proves fatal.

Moving now to the adequacy of Texas's procedures for obtaining just compensation, we conclude that plaintiffs have not carried their burden of establishing that Texas law unquestionably would afford them no remedy. In the "seminal"20 case of City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex.1963), the court held that if the offending conduct undertaken by the governmental entity "results in a nuisance, such acts ... constitute a damaging or taking of property under Section 17 of Article I of the Texas Constitution." Subsequent Texas caselaw has acknowledged this avenue for recovery under section 17.21 For example, in City of Abilene v. Smithwick, 721 S.W.2d 949, 951 n. 2 (Tex.App.--Eastland 1986, writ ref'd n.r.e.), the court observed that "[t]he [Texas] Supreme Court has recognized that proof of a nuisance might also allow a plaintiff to recover under TEX. CONST. art. I, sec. 17." Similarly, in Abbott v. City of Kaufman, 717 S.W.2d 927, 931 (Tex.App.--Tyler 1986, writ dism'd), the court stated that the Downs court "distinguished between the city's immunity from tort liability for nuisance, as such, and its duty under the Constitution to pay compensation for a damaging or taking resulting from the nuisance."22

We reject plaintiffs' argument that Texas law compensates only those claimants whose property interests have been undermined by narrowly-defined "public works." Plaintiffs rely upon Steele v. City of Houston, 603 S.W.2d 786, 790 (Tex.1980), which states that "[t]he Constitution limits compensation to damages 'for or applied to public use,' and judicial restraints have narrowed that phrase to damages that arise out of or as an incident to some kind of public works."

Although this language appears to strengthen plaintiffs' contention, Steele nonetheless provides inadequate support. For instance, the cases cited by the Steele court do not constitute "judicial narrowings" of the "public use" language in section 17. More importantly, the facts of Steele call into question plaintiffs' preferred reading of the case.

In Steele, city police burned down plaintiffs' house in order to smoke out some escaped convicts that had taken refuge there. Id. at 788, 789. In remanding the case for trial, the court stated that the plaintiffs would be entitled to prove "that the destruction was done 'for or applied to public use.' " Id. at 791-92. The court also observed the following: "That the destruction was done for the public use is or can be established by proof that the City ordered the destruction of the property because of real or supposed public emergency to apprehend armed and dangerous men who had taken refuge in the house." Id. at 792.

This language somewhat undermines plaintiffs' argument that takings claims may arise only out of the construction or operation of things like highways and waterways; the court contemplated the possibility that burning down someone's house to recapture escaped criminals can be for a "public use." Furthermore, our research has revealed only one subsequent case in which the court relied upon Steele 's reference to "public works." In Abbott, the court reiterated Steele 's proposition that "judicial decisions have narrowed the meaning of 'public use' to those situations in which the damages are incident to the construction and operation of a public work." 717 S.W.2d at 932 (citing Steele ). The Abbott court declared that "[i]t is this element that distinguishes the instant case from ... cases relied on by City." Id. Abbott involved landowners' claims that water discharged by the city's sewage treatment plant damaged their land. The court distinguished the case before it from Texas Highway Dep't v. Weber, 219 S.W.2d 70 (1949), a case cited by the city in that case, stating that the Weber plaintiffs lost their suit because the damage to their land "did not result from the construction of a public work." 717 S.W.2d at 932.

However, the Abbott court's own discussion of Weber reveals that the plaintiffs in Weber were unsuccessful because they based their claims on negligence; defendants there did not argue that no recovery was possible because the loss did not arise out of the construction or operation of "public works." The other cases cited by the city in Abbott similarly did not rely upon some narrow definition of "public use" to reach their respective results.23

While we by no means opine that the "public works" requirement has been abandoned in Texas, it is uncertain how Texas courts would treat the Samaad and Pierce plaintiffs' takings claim. Given that the unsettled status of state law does not render the available procedures "inadequate,"24 we conclude that plaintiffs' claim that their property was taken for a public use without just compensation is unripe under Williamson County. Accordingly, the district court was without jurisdiction to consider that claim.25

B. Taking for Private Use.

In the preceding section, we have concluded that plaintiffs' failure to seek just compensation rendered one of their claims unripe. However, this holding does not dispose of all of the claims. More specifically, Williamson County does not apply to those claims in which plaintiffs contend that defendants took their property for a private purpose.

The Fifth Amendment prohibits both uncompensated takings and takings for a private purpose. In other words, a taking for a private purpose is unconstitutional even if the government provides just compensation. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241, 104 S. Ct. 2321, 2329, 81 L. Ed. 2d 186 (1984) (citing cases prohibiting private takings "even though compensation be paid").26 Accordingly, plaintiffs' failure to seek compensation for the alleged taking of their property for a private purpose does not render that claim unripe.27 Therefore, we must consider whether the court properly granted summary judgment on that claim.

IV. PROPRIETY OF SUMMARY JUDGMENT.

Coming now to the merits of plaintiffs' takings claim, we conclude that they have neither alleged nor proved a "taking" of their property as that term is used in the Constitution.28 Accordingly, we affirm the district court's grant of summary judgment.

In reviewing a district court's disposition of a summary judgment motion, we apply the same test as did the district court. Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S. Ct. 152, 98 L. Ed. 2d 107 (1987). The pertinent test is supplied by Fed.R.Civ.P. 56(c), which provides that summary judgment shall be granted if the record evidence relied upon by the parties "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

The dispute in this case centers on the "substantive law." Plaintiffs argue that takings law is characterized by a three-part test and that they have created a genuine issue of material fact with respect to each element of that supposed test. Defendants counter that there is no rigid "three-part test" and that plaintiffs have not created a genuine issue of material fact under the proper test for a taking. Agreeing with defendants, we conclude that any factual disputes plaintiffs may have raised are not material and affirm the district court's grant of summary judgment.

The precise parameters of what governmental conduct constitutes a taking are uncertain; plaintiffs contend that the district court invoked the wrong test. They assert that the court should have applied a three-factor balancing test focusing upon (1) the "character of the governmental action"; (2) the "interference with reasonable investment backed expectations"; and (3) "the economic impact of the regulation" (citing Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S. Ct. 383, 390, 62 L. Ed. 2d 332 (1979)).29

Plaintiffs' slavish reliance upon the three factors mentioned in Kaiser Aetna is inappropriate. The pertinent language from that case is as follows:

[T]his Court has generally "been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Rather, it has examined the "taking" question by engaging in essentially ad hoc, factual inquiries that have identified several factors--such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action--that have particular significance.

Kaiser Aetna, 444 U.S. at 175, 100 S.Ct. at 390 (citations omitted).

This language reveals that the three-factor analysis upon which plaintiffs so heavily rely does not actually exist. In reality, the Court has encouraged the lower courts to engage in "ad hoc, factual inquiries" into numerous factors. By simply giving examples, the Court did not promulgate the rigid test that the plaintiffs embrace. Moreover, subsequent Supreme Court opinions have not automatically invoked this purported three-part test. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987).

Furthermore, the cases reveal that the three illustrative factors in Kaiser Aetna are themselves somewhat amorphous and inclusive of other factors. For example, the "character of the governmental action" is particularly wide-ranging. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982), in discussing the character of the governmental action, the Court noted that " '[a] "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government....' " Id. at 426, 102 S.Ct. at 3171 (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 (1978)).

Accordingly, even though the Court has invoked the three factors mentioned in Kaiser Aetna, they are by no means the only (or even necessary) inquiries. Instead, the circumstances of each case determine the factors a court should consider in a takings case. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984) (Court focused on reasonable investment backed expectations where pesticide company forced to turn over trade secrets to government); Hodel v. Irving, 481 U.S. 704, 107 S. Ct. 2076, 95 L. Ed. 2d 668 (1987) (Court focused on "character of governmental action" where government action destroyed "one of the most essential sticks in the bundle of rights that are commonly characterized as property").

The circumstances of the case sub judice indicate that certain factors should be considered in determining whether defendants effected a taking of private property. These include (1) the limited amount of time during which the defendants' conduct affected plaintiffs' use and enjoyment of their property; (2) the limited nature of the interference with plaintiffs' use and enjoyment; and (3) the lack of any physical invasion of plaintiffs' property.

The evidence is uncontroverted that defendants' conduct impaired plaintiffs' use of their property for a limited time only. The automobile races took place over two short time spans in two separate years. The races did not run continuously during those periods. The relatively insignificant duration of the offensive governmental conduct undermines plaintiffs' argument that the defendants "took" their property within the meaning of the Fifth Amendment.

Plaintiffs correctly cite First English to the effect that temporary government interference can constitute a taking. However, it surely does not stand for the proposition that all temporary interferences are takings. A closer look at First English reveals that it is fully distinguishable from the facts of our case. There, the plaintiffs challenged a county ordinance forbidding them from constructing any buildings on their property. Because the regulation was of limited duration, the Court faced the question "whether abandonment [of the regulation] by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land." 482 U.S. at 318, 107 S.Ct. at 2387.

However, simply because First English involved a temporary interference with land use does not entitle plaintiffs to victory. Because of the procedural posture of that case, the Court was compelled to "treat as true" the allegation in the complaint that "the ordinance in question denied appellant all use of its property." Id. at 321, 107 S.Ct. at 2389. Plaintiffs do not even contend in the case at bar that the races denied them "all use" of their property.

Plaintiffs cite Loretto for the proposition that a relatively minor interference with property still can constitute a taking. Although the case undoubtedly supports that assertion, it is nonetheless distinguishable on its facts. In that case, the claimants challenged a city ordinance requiring them to allow a cable television company to install cables on their property. The Court stressed that this was "a permanent physical occupation of real property" in concluding that the statute effected a taking. 458 U.S. at 427, 102 S.Ct. at 3171. In contrast, the governmental conduct in our case affected the plaintiffs' property in a way that was neither permanent nor physical, as in Loretto.

The "character of the governmental action" in our case also undermines plaintiffs' argument that there was a taking. Numerous cases have stressed that a court will be more likely to find a taking where the governmental action interferes with "one of the most essential sticks in the bundle." Kaiser Aetna, 444 U.S. at 176, 100 S.Ct. at 391. The running of the races did not deprive the residents of one of those "most essential sticks." In both Nollan and Monsanto, the Court recognized that the right to exclude others was one of the most essential attributes of property ownership. In Nollan, the Court on that basis found that the government took plaintiffs' property by requiring them to forfeit an easement over their land. The races impaired no such essential attribute.

Furthermore, courts have rarely found a taking when the governmental conduct would give rise to a nuisance action at common law. See, e.g., Smith v. City of Brenham, 865 F.2d 662 (5th Cir.) (proposed operation of landfill near plaintiff's land not a taking) cert. denied, --- U.S. ----, 110 S. Ct. 60, 107 L. Ed. 2d 27 (1989); Citizens Ass'n v. International Raceways, Inc., 833 F.2d 760 (9th Cir.1987). In cases concerning the operation of airports, the courts have found takings only where flights "are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of land." Compare United States v. Causby, 328 U.S. 256, 266, 66 S. Ct. 1062, 1068, 90 L. Ed. 1206 (1946) with Batten v. United States, 306 F.2d 580, 584 (10th Cir.1962) (no taking), cert. denied, 371 U.S. 955, 83 S. Ct. 506, 9 L. Ed. 2d 502 (1963) and Avery v. United States, 330 F.2d 640, 645, 165 Ct. Cl. 357 (1964) and Branning v. United States, 654 F.2d 88, 99, 228 Ct. Cl. 240 (1981) (per curiam). The running of auto races for three or four days simply does not constitute a taking.

Because we conclude that there was no taking in this case, we do not consider the private defendants' alternative argument that, as private entities, they cannot be held liable under section 1983 in any event. Nor do we address plaintiffs' argument that the taking was for a private purpose. All that remains are plaintiffs' pendent state law claims and their equal protection claim in Pierce.V. EQUAL PROTECTION CLAIM.

A. Substantive Claim.

The Pierce plaintiffs contend that defendant Wise permitted Fair Park to be used for the two grand prix races, that he "took no precautions to assure that the races would not produce unlawful noise in the neighborhoods," and that he took no enforcement action in response to allegedly unlawful noise levels. Although none of these actions in itself violates the Constitution, plaintiffs contend Wise would have acted differently had predominantly white neighborhoods surrounded Fair Park. Wise asserted unsuccessfully that he was qualifiedly immune from suit.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the Court addressed the scope of defendants' immunity from suit under section 1983. It held that section 1983 claimants must establish that the defendant's conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. The Court later considered whether the denial of an immunity-based summary judgment motion is immediately appealable under 28 U.S.C. Sec. 1291. See Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). As a general rule, only a final judgment of the district court is appealable. A court's denial of a summary judgment motion is interlocutory in nature and, thus, ordinarily not appealable.

However, under the "collateral order doctrine," an interlocutory order is appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528 (1949). In Mitchell, the Court held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." 472 U.S. at 530, 105 S.Ct. at 2817.

In this case, the district court provisionally denied Wise's motion for summary judgment and ordered limited discovery. The court first concluded that "it is clear that if Plaintiffs' allegations are true, Defendants' actions violated clearly established constitutional law by intentionally discriminating against Plaintiffs on the basis of race." It then declared that Wise's entitlement to immunity depended upon whether a discriminatory animus infected his actions. It ordered additional discovery on the issue of Wise's intent.

In reaching the above-quoted conclusion, the district court, to some degree, anticipated the appropriate analysis as outlined in Siegert v. Gilley, --- U.S. ----, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991), in which the Court stated, "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." In Siegert, the Court holds that a court addressing a claim of qualified immunity should first consider "whether the plaintiff asserted a violation of a constitutional right at all" before reaching the possibly unnecessary question of whether the plaintiff asserted a violation of a "clearly established" right. Id. ("the Court of Appeals should not have assumed without deciding this preliminary issue"). Accord Quives v. Campbell, 934 F.2d 668, 670 (5th Cir.1991).

In our case, the district court essentially followed that mandated analysis in first concluding that "if Plaintiffs' allegations are true, Defendants' actions violated clearly established constitutional law by intentionally discriminating against Plaintiffs on the basis of race." We, however, disagree with that conclusion; in fact, we find that plaintiff did not allege a constitutional violation at all, "clearly established" or not, for the complaint does not state facts that, even if true, would constitute a violation of the Equal Protection Clause.

The Pierce plaintiffs contend that defendants would not have allowed the grand prix races "adjacent to neighborhoods with a predominantly white population." They also assert that had the races occurred near white neighborhoods, defendants would have taken precautions to minimize the noise levels and enforced noise ordinances. But even if this were true, such conduct, however offensive, would not violate the Equal Protection Clause, which mandates similar treatment for those similarly situated. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442, 105 S. Ct. 3249, 3255, 87 L. Ed. 2d 313 (1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 (1982). Because the plaintiffs failed to allege the existence of a similarly situated non-minority neighborhood (i.e., one near a location suitable for an automobile race), their complaint does not allege an equal protection violation.

This court has adhered, as we must, to the Supreme Court's interpretation of the Equal Protection Clause. For example, in Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th Cir.1991), we considered whether the application of a particular federal regulation to a specific group but not to plaintiffs' group violated the equal protection maxim. Our methodology in that case indicates our adherence to the above-stated interpretation: "[W]hether [the regulation at issue] violates the equal protection principle depends on whether [members of the group to whom the regulation applies] are similarly situated to other members of our society." Id. at 1214. Similarly, in Mahone v. Addicks Utility District, 836 F.2d 921, 932 (5th Cir.1988), we stated, "Because the clause's protection reaches only dissimilar treatment among similar people, if the challenged government action does not appear to classify or distinguish between two or more relevant persons or groups, then the action does not deny equal protection of the laws."30

The Pierce plaintiffs have failed to allege the existence of any similarly situated group of whites that have been treated differently. Their claim is purely hypothetical: that defendants would have acted differently had a predominantly white neighborhood surrounded Fair Park. They do not allege that there was an additional suitable location for a grand prix race near a predominantly white neighborhood nor that defendants chose Fair Park, as opposed to some other location, because it abuts minority neighborhoods.31

The Equal Protection Clause proscribes racially-motivated differential treatment. As we said in Cronn, 717 F.2d at 169, "[t]he essence of an equal protection claim is that other persons similarly situated as is the claimant unfairly enjoy benefits that he does not or escape burdens to which he is subjected." In the case at bar, there simply is no similarly situated group of whites that have escaped the burdens to which plaintiffs have been subjected. The complaint does not even allege that defendants chose between similarly situated blacks and whites in determining where to hold the grand prix race. Accordingly, it fails to state a constitutional violation.32

B. Procedural Claim.

Finally, plaintiffs contend that we are without appellate jurisdiction over Wise's appeal. They rely upon Mitchell 's requirement that the denial of summary judgment must "turn[ ] on an issue of law." 472 U.S. at 530, 105 S. Ct. at 2817. They argue that the district court's denial turned on an issue of fact (Wise's intent) and that the immunity question cannot be resolved without discovery into Wise's state of mind.

Assuming arguendo that the denial of qualified immunity ultimately turned on an issue of fact, the only reason that is so is that the court erroneously decided an issue of law, i.e., whether the complaint stated a constitutional cause of action at all. Accordingly, the district court's denial of summary judgment, at an analytically prior stage, did turn on an issue of law. See Siegert, 111 S. Ct. at 1793 (whether complaint states constitutional cause of action is "purely legal question"). Therefore, we have jurisdiction over the appeal from the denial of Wise's immunity-based summary judgment motion.

VI. CONCLUSION.

We affirm the district court's grant of summary judgment to defendants. We reverse the judgment insofar as it denies Wise's claim of qualified immunity and remand for further proceedings consistent herewith.33

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.34