Skatemore, Inc. v. Gretchen Whitmer

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0159p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

SKATEMORE, INC., a Michigan corporation dba Roll

│

Haven Skating Center; SLIM’S REC, INC., a Michigan

│

corporation dba Spartan West Bowling Center/Beamers

│

Restaurant; MR. K ENTERPRISES, INC., a Michigan

│ No. 21-2985

corporation dba Royal Scot Golf & Bowl; M.B. AND D. >

LLC, a Michigan limited liability company dba │

Fremont Lanes; R2M, LLC, a Michigan limited │

liability company dba Spectrum Lanes & Woody’s │

Press Box, │

Plaintiffs-Appellants, │

│

│

v. │

│

GRETCHEN WHITMER, in her official capacity as │

Governor of the State of Michigan; ROBERT GORDON, │

in his official capacity as Director of the Michigan │

Department of Health and Human Services; MICHIGAN │

DEPARTMENT OF HEALTH AND HUMAN SERVICES, a │

Michigan Administrative Agency, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:21-cv-00066—Hala Y. Jarbou, District Judge.

Argued: April 27, 2022

Decided and Filed: July 19, 2022

Before: CLAY, GRIFFIN and WHITE, Circuit Judges.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 2

_________________

COUNSEL

ARGUED: Stephen P. Kallman, KALLMAN LEGAL GROUP, PLLC, Lansing, Michigan, for

Appellants. Daniel J. Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellees. ON BRIEF: Stephen P. Kallman, David A. Kallman, KALLMAN

LEGAL GROUP, PLLC, Lansing, Michigan, for Appellants. Daniel J. Ping, Darrin F. Fowler,

Kyla Barranco, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,

for Appellees.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiffs Skatemore, Inc., Slim’s Rec, Inc., Mr. K Enterprises,

Inc., M.B. and D. LLC, and R2M, LLC, operators of bowling alleys and roller-skating rinks in

Michigan, sued Michigan Governor Gretchen Whitmer, former Michigan Department of Health

and Human Services (“MDHHS”) Director Robert Gordon, and the MDHHS alleging that

various orders limiting the use of Plaintiffs’ properties early in the COVID-19 pandemic

constituted an unconstitutional taking in violation of the Fifth Amendment of the U.S.

Constitution and Article X of the Michigan Constitution. The district court found that

Defendants were entitled to immunity pursuant to the Eleventh Amendment and accordingly

dismissed Plaintiffs’ complaint for lack of jurisdiction. The district court also denied Plaintiffs’

motion to amend their complaint. We AFFIRM for the reasons set forth below.

I. BACKGROUND

A. Factual Background

In late 2019 and early 2020, SARS-CoV-2—the virus responsible for COVID-19—began

spreading around the world. This novel strain of a coronavirus caused an alarming uptick in

hospitalizations and deaths. Early research found that the virus spreads through respiratory

droplets. To mitigate the spread of the virus, individuals were promptly and repeatedly advised

to avoid close indoor contact.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 3

On March 10, 2020, Michigan Governor Gretchen Whitmer announced that state public

health officials had detected the first known cases of COVID-19 in the state. That same day,

Governor Whitmer declared a state of emergency in an attempt to slow the spread of the virus.

A few days later, on March 16, 2020, Governor Whitmer signed Executive Order (“EO”) 2020-

09, which “closed to ingress, egress, use, and occupancy by members of the public” various

places of public accommodation, including places of public amusement.1 Specifically included

in the definition of “places of public amusement” were bowling alleys and skating rinks. Despite

prohibiting the public from entering such premises, EO 2020-09 “encouraged [affected

businesses] to offer food and beverage using delivery service, window service, walk-up service,

drive-through service, or drive-up service.” EO 2020-09. The purpose of this first EO was “[t]o

mitigate the spread of COVID-19, protect the public health, and provide essential protections to

vulnerable Michiganders . . . .” Id. Among the affected bowling alleys and roller-skating rinks

were Plaintiffs Skatemore, Inc., Slim’s Rec, Inc., Mr. K Enterprises, Inc., M.B. and D. LLC, and

R2M, LLC (collectively “Plaintiffs”).

Over the next several months, Governor Whitmer extended the closure of bowling alleys

for a few weeks at a time. See EO Nos. 2020-20 (Mar. 21, 2020), 2020-43 (Apr. 15, 2020),

2020-69 (May 1, 2020), 2020-100 (May 26, 2020). However, the piecemeal extension of

bowling alley and roller-skating rink closures ended on June 1, 2020, when Governor Whitmer

ordered the affected businesses to indefinitely limit their operations. See EO Nos. 2020-110

(June 1, 2020), 2020-160 (July 30, 2020), 2020-176 (Sept. 3, 2020), 2020-183 (Sept. 25, 2020).

Instead of identifying a specific expiration date, the EOs issued on or after June 1, 2020, simply

identified factors the governor would consider when deciding whether to alter or end the

restrictions. Beginning on September 3, 2020, bowling alleys and roller rinks were permitted to

“serv[e] as a venue for organized sports.” EO No. 2020-176. In several of the EOs, Governor

Whitmer specifically noted that Michigan courts were reviewing the legality of the EOs. See EO

Nos. 2020-110, 2020-160, 2020-176, 2020-183.

1

The various EOs cited throughout this opinion are accessible at https://www michigan.gov/whitmer

/news/state-orders-and-directives.

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On October 2, 2020, the Michigan Supreme Court held that Governor Whitmer lacked

the power to issue emergency orders after April 30, 2020. In re Certified Questions from U.S.

Dist. Ct., W. Dist. of Mich., S. Div., 958 N.W.2d 1, 11 (Mich. 2020). On November 15, 2020,

MDHHS Director Robert Gordon2 issued an order pursuant to his independent authority under

Mich. Comp. Laws § 333.2253. Director Gordon’s emergency order, which became effective

on November 18, 2020, mirrored Governor Whitmer’s EOs insofar as it prohibited the public

from entering and using bowling alleys and skating rinks. MDHHS Order (Nov. 15, 2020),

available at https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-545136--

,00.html. Director Gordon extended the closures twice. Plaintiffs’ businesses remained closed

until December 21, 2020, when MDHHS’s orders naturally expired.

B. Procedural Background

On January 20, 2021, Plaintiffs commenced this action against Governor Whitmer,

Director Gordon, both in their official capacities, and MDHHS. They alleged that the forced

“closure” of their bowling alleys and roller-skating rinks from March 16, 2020 to October 2,

2020 and November 18, 2020 to December 21, 2020 were unconstitutional takings in violation of

the Fifth Amendment of the U.S. Constitution and Article X, § 2 of the Michigan Constitution.

Plaintiffs brought their Fifth Amendment takings claim against Governor Whitmer and Director

Gordon under 42 U.S.C § 1983.

Defendants jointly moved to dismiss the complaint. They first argued that the district

court lacked jurisdiction because they were entitled to Eleventh Amendment immunity. See Fed.

R. Civ. P. 12(b)(1). Plaintiffs responded that because Defendants promulgated the EOs pursuant

to legislation that was held unconstitutional by the Michigan Supreme Court, the Eleventh

Amendment did not apply. They also argued that the Supreme Court’s recent decision in Knick

v. Township of Scott, 139 S. Ct. 2162 (2019), carved out an exception to Eleventh Amendment

immunity; and therefore, the Eleventh Amendment could not be invoked to dismiss a Fifth

Amendment takings claim in federal court. Plaintiffs further argued that the Fourteenth

Amendment, which made the Fifth Amendment Takings Clause applicable to the states,

2

Robert Gordon was the Director of MDHHS at all times relevant to this action.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 5

abrogated state sovereign immunity with respect to takings claims because the Fourteenth

Amendment was ratified after the Eleventh Amendment. Finally, Plaintiffs argued that the Fifth

Amendment is an exception to the Eleventh Amendment because it expressly provides for “just

compensation” and “[i]t would not make any logical sense for the 5th Amendment to apply to the

states through incorporation by the 14th Amendment, but to then have the 11th Amendment

nullify it completely by barring all ‘just compensation’ from those same states.” (Pls.’ Resp. Br.,

R. 19, Page ID #96.)

Defendants also argued that Plaintiffs had failed to state a claim because the EOs did not

amount to a taking. See Fed. R. Civ. P. 12(b)(6). While Defendants’ motion to dismiss was

pending, Plaintiffs sought leave to amend their complaint to supplement their factual allegations

and to sue Governor Whitmer and Director Gordon in their personal capacities.

In a combined order, the district court granted Defendants’ motion to dismiss and denied

Plaintiffs’ motion to amend the complaint. The district court first held that Defendants were

entitled to immunity. It held that Knick did not overrule Sixth Circuit precedent, which had

established that the Takings Clause is not an exception to Eleventh Amendment immunity.

Although the Eleventh Amendment holding was sufficient to dismiss the case, the court went on

to hold that even if it had jurisdiction, the EOs’ temporary limitation on the use of Plaintiffs’

property did not amount to an actionable taking. Finally, the court held that any attempt by

Plaintiffs to amend their complaint would be futile. Even if Plaintiffs were permitted to sue

Governor Whitmer and Director Gordon in their personal capacities, the EOs would still not

amount to an unconstitutional taking. In sum, the district court dismissed Plaintiffs’ complaint

without prejudice and denied Plaintiffs’ motion to amend the complaint. Plaintiffs timely

appealed.

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II. DISCUSSION

A. Eleventh Amendment Immunity

i. Standard of Review

We review dismissals for lack of subject matter jurisdiction de novo. Russell v.

Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015). The Court must construe the

complaint in the light most favorable to the Plaintiffs; however, the Court need “not presume the

truth of factual allegations pertaining to our jurisdiction to hear the case.” Id.

ii. Analysis

Upon gaining independence, the several states “considered themselves fully sovereign

nations.” Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493 (2019). This sovereignty

was not only in name; the states inherited “all the rights and powers of sovereign states.” Id.

(quoting McIlvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209, 212 (1808)). Among the rights

states inherited as newly sovereign nations was “immunity from private suits.” Id. (quoting Fed.

Mar. Comm’n v. S.C. Ports Auth., 535 U.S. 743, 751–52 (2002)).

The states’ unencumbered sovereignty did not last long. By ratifying the Constitution,

the states ceded some of the rights they enjoyed under international law to the newly created

federal government. See id. at 1495. One right surrendered to the federal government was

states’ absolute immunity from certain suits. In certain actions, such as when one state sues

another state, U.S. Const. art. III § 2, the states impliedly consented to federal court jurisdiction.

Cf. id. (“The States, in ratifying the Constitution, similarly surrendered a portion of their

immunity by consenting to suits brought against them by the United States in federal courts.”).

The scope of the states’ consent to federal court jurisdiction was first tested in Chisholm

v. Georgia, 2 Dall. 419 (1793). In that case, the Supreme Court considered the extent to which

state immunity from private suits survived the ratification of the Constitution. The Court held

that “by ratifying Article III, Section Two’s inclusion of cases ‘between a state and citizens of

another state’ within the judicial power of the United States, the States consented to federal

jurisdiction over civil suits brought by private citizens against the States.” Ladd v. Marchbanks,

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 7

971 F.3d 574, 577–78 (6th Cir. 2020) (quoting Chisholm, 2 Dall. at 420). The states

immediately and furiously rejected Chisholm. Hyatt, 139 S. Ct. at 1495–96. Within months,

Congress proposed and passed the Eleventh Amendment to the Constitution, sending the

Amendment to the states. On February 7, 1795, just two years after Chisholm, the states ratified

the Eleventh Amendment. Id. at 1496.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Stated differently, the “Eleventh Amendment bars suits against a state or

its agencies in federal court[.]” Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 681

(6th Cir. 2018). Since the ratification of the Eleventh Amendment, the Supreme Court has

expanded the Amendment’s plain language in two important ways. First, in Hans v. Louisiana,

134 U.S. 1, 18–19 (1890), the Court held that Eleventh Amendment immunity applies to private

suits commenced against a state by its own citizens. Second, in Kentucky v. Graham, 473 U.S.

159, 169 (1985), the Court made the Eleventh Amendment applicable to state officials sued in

their official capacity. Piecing this caselaw together, MDHSS is entitled to invoke sovereign

immunity against Plaintiffs’ suit because it is a state agency, Brent, 901 F.3d at 681, and

Governor Whitmer and Director Gordon can also avail themselves of this immunity because

Plaintiffs sued them in their official capacities, Graham, 473 U.S. at 169.

While Eleventh Amendment immunity provides broad protections for states to dismiss

private suits in federal court, the immunity is not limitless. Courts have carved out three

exceptions to Eleventh Amendment immunity: “(1) when the state has waived immunity by

consenting to the suit; (2) when Congress has expressly abrogated the states’ sovereign

immunity, and (3) when the doctrine set forth in Ex Parte Young, 209 U.S. 123[] (1908),

applies.” Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017). None of these exceptions apply to

the present case.

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1. Ex parte Young

Regarding the exception set forth in Ex parte Young, Plaintiffs find no relief. Ex parte

Young permits a private party to seek prospective injunctive relief against state officials in their

official capacity before those officials violate the plaintiff’s federal constitutional or statutory

rights. Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 417 (6th Cir. 2019).

In the present case, Plaintiffs are seeking retroactive compensatory damages, not prospective

injunctive relief. Accordingly, Ex parte Young does not apply here. See Quern v. Jordan, 440

U.S. 332, 338 (1979) (quoting Edelman v. Jordan, 415 U.S. 651, 677 (1974)) (“[A] federal

court’s remedial power . . . may not include a retroactive award which requires the payment of

funds from the state treasury”); see also Boler, 865 F.3d at 412 (stating that Ex parte Young

“does not extend to retroactive relief or claims for money damages.”).

2. Abrogation

Plaintiffs argue that the Fifth Amendment’s Takings Clause is an exception to the

Eleventh Amendment. They seize in particular on the following “blanket statement” from the

Supreme Court’s decision in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), which they

argue “provided no exceptions for the right of property owner[s] to seek relief in federal court for

a takings claim.” (Appellants’ Br. 9.) In Knick, the Court stated:

A property owner has a claim for a violation of the Takings Clause as soon as a

government takes his property for public use without paying for it . . . And the

property owner may sue the government at that time in federal court for the

“deprivation” of a right “secured by the Constitution.”

Knick, 139 S. Ct. at 2170 (quoting 42 U.S.C. § 1983).

In Knick, the petitioners challenged the Supreme Court’s holding in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

Williamson County held that individuals did not suffer Fifth Amendment Takings Clause

violations until state courts denied compensation under state law. 473 U.S. at 194. Only after

being denied relief in state court could the plaintiffs bring suit in federal court. Id. The Knick

Court overruled Williamson County, holding that the plaintiffs no longer need to exhaust state

court remedies before seeking relief in federal court. 139 S. Ct. at 2170.

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In Ladd, the plaintiffs argued that Knick overruled earlier Sixth Circuit precedent and that

the Takings Clause abrogated Eleventh Amendment immunity. 971 F.3d at 578–79. We

rejected this argument and explicitly held that “the Fifth Amendment’s Takings Clause does not

abrogate sovereign immunity.” Id. at 579. In reaching this conclusion, we noted that Knick was

a case against a municipality, and municipalities are not entitled to the protection of Eleventh

Amendment immunity. Id.; see, e.g., Jinks v. Richland Cnty., 538 U.S. 456, 466 (2003)

(“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.”).

Therefore, it would be a significant expansion of Knick to now extend its reasoning to state

officials, who typically are entitled to Eleventh Amendment immunity. Plaintiffs do not identify

any subsequent or inconsistent authority that casts doubt upon our holding in Ladd. See Salmi v.

Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“The prior decision remains

controlling authority unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision.”).

Plaintiffs also argue that the Fourteenth Amendment “abrogated” the Eleventh

Amendment by virtue of its having been adopted after the Eleventh Amendment. (See

Appellants’ Br. 11 (“[T]he 14th Amendment, which incorporated the 5th Amendment Takings

Clause as applicable to the States, was adopted after the 11th Amendment. Since Congress has

the authority to abrogate a State’s sovereign immunity, certainly a Constitutional Amendment

must do so as well.”) (internal citation omitted).) This argument is meritless. “The 14th

Amendment only provides Congress with power to enforce the Amendment through legislation,

which provides the basis for congressional abrogation. Remedies against states under the 14th

Amendment are created by legislation, not by other constitutional amendments.” Ysleta Del Sur

Pueblo v. Texas, No. 99-50656, 2000 WL 122431, at *2 (5th Cir. Jan. 6, 2000) (per curiam).

Accordingly, Plaintiffs’ case cannot be saved through the abrogation exception to

Eleventh Amendment immunity.

3. Consent / Waiver

Plaintiffs next rely on the third exception to Eleventh Amendment immunity—consent or

waiver. They argue that the states waived their immunity by ratifying the Fifth and Fourteenth

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Amendments. Defendants respond relying on Ladd to argue that the Sixth Circuit has already

denied a functionally identical argument. Plaintiffs reply that Ladd is not applicable to this

argument because Ladd is an abrogation case.

Plaintiffs are correct in arguing that Ladd is technically an abrogation case. See Ladd,

971 F.3d at 579 (“[T]he Fifth Amendment’s Takings Clause does not abrogate sovereign

immunity” (emphasis added)). Nevertheless, even if Ladd is not necessarily controlling in this

appeal, we find its logic persuasive. To accept Plaintiffs’ argument that the states waived their

sovereign immunity by ratifying the Fifth Amendment would effectively overrule Ladd. As

recognized by the Fifth Circuit, “[n]othing in Knick alters . . . bedrock principles of sovereign

immunity law.” Bay Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 456 (5th Cir.

2019). Moreover, both this court and other circuits have held, consistent with Ladd, that the

Eleventh Amendment bars takings claims against states in federal court, as long as a remedy is

available in state court. See, e.g., DLX, Inc. v. Kentucky, 381 F.3d 511, 526–28 (6th Cir. 2004)

(holding that Eleventh Amendment barred takings claim against states in federal court and

stating that “the Kentucky courts would have had to hear that federal claim”), overruled on other

grounds by San Remo Hotel, L.P. v. City of San Francisco, 545 U.S. 323 (2005); Hutto v. S.C.

Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014) (holding that “the Eleventh Amendment bars Fifth

Amendment takings claims against States in federal court when the State’s courts remain open to

adjudicate such claims.” (emphasis in original)). Plaintiffs do not dispute that the Michigan state

courts remain open to hear their claims. See, e.g., K & K Constr., Inc. v. Dep’t of Nat’l Res., 575

N.W.2d 531 (Mich. 1998) (adjudicating takings claim against state entity under Fifth

Amendment and Michigan constitution).

Relying on the recent Supreme Court decision in PennEast Pipeline Co. v. New Jersey,

141 S. Ct. 2244 (2021), Plaintiffs also argue that the states consented to federal court jurisdiction

or waived their immunity to takings claims by ratifying the Fifth and Fourteenth Amendments.

In that case, the Federal Energy Regulatory Commission (“FERC”) authorized PennEast to

construct an oil pipeline from central Pennsylvania to New Jersey. Id. at 2253. PennEast

extensively researched the best path for the pipeline and ultimately settled on a path that passed

through property in which the State of New Jersey had a proprietary interest. Id. PennEast then

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commenced in federal court a condemnation action against New Jersey under 15 U.S.C.

§ 717f(h) to take possession of the necessary property. Id. New Jersey invoked Eleventh

Amendment immunity and sought to have the condemnation action dismissed. Id.

The Supreme Court held New Jersey could not invoke Eleventh Amendment immunity to

have the case dismissed. It explained that under the “plan of the Convention,” New Jersey

consented to federal court jurisdiction in takings claims brought by (or on behalf of) the federal

government. Id. at 2259 (“PennEast’s condemnation action to give effect to the federal eminent

domain power falls comfortably within the class of suits to which States consented under the

plan of the Convention.”). Historically, sovereigns had enjoyed the power of eminent domain;

and the practice was “inextricably intertwined with the ability to condemn.” Id. at 2260.

Because the power to take land for public use was inherent in the sovereignty of the United

States, New Jersey impliedly consented to the exercise of federal court jurisdiction in

condemnation proceedings commenced by the federal government when it consented to federal

sovereignty.

PennEast is markedly different than the present case. In that case, PennEast, lawfully

exercising the federal eminent domain power, sought to seize state-owned property. In a takings

suit between the federal government and a state, it is reasonable to assume, as the Supreme Court

did, that the “judicial Power of the United States” extends to such suits. U.S. Const., art. III. But

in the present appeal, citizens of Michigan seek compensation from the State of Michigan. The

dispute is a purely intra-state matter. To agree with Plaintiffs would be to go beyond the holding

of PennEast.

Nor can ratification of the Fourteenth Amendment be construed as a waiver of states’

Eleventh Amendment immunity. Plaintiffs rely on the fact that the Fourteenth Amendment

incorporates the Fifth Amendment. See Kerns v. Chesapeake Expl., LLC, 762 F. App’x 289, 295

(6th Cir. 2019). Plaintiffs further argue that by ratifying the Fourteenth Amendment after the

Eleventh Amendment, states impliedly waived their immunity to takings claims. This argument

is unconvincing. PennEast suggests that courts should consider the states’ intent at the time of

ratification to determine whether they impliedly consented through ratification. Cf. 141 S. Ct. at

2258 (“The ‘plan of the Convention’ includes certain waivers of sovereign immunity to which all

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 12

States implicitly consented at the founding.” (emphasis added)). There is no indication that at

the time Michigan ratified the Fourteenth Amendment in 1867 that the Fifth Amendment’s

Takings Clause would apply to the states. In fact, the Takings Clause was the first right to be

incorporated and that did not occur until 30 years after the Fourteenth Amendment was ratified.

See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897). Moreover, to accept

Plaintiffs’ argument and hold that states waived their sovereign immunity in suits that invoke a

right incorporated through the Fourteenth Amendment would destroy the protection the Eleventh

Amendment was specifically ratified to provide. Future plaintiffs could claim any right

incorporated through the Fourteenth Amendment is no longer subject to Eleventh Amendment

immunity.

4. Ultra Vires Action as an Exception to the Eleventh Amendment

In a final attempt to avoid Eleventh Amendment immunity, Plaintiffs strenuously argue

that Governor Whitmer, specifically, is not entitled to Eleventh Amendment immunity because

she acted ultra vires. Their argument is that the Michigan Supreme Court’s October 2, 2020,

opinion, which declared the EOs invalid after April 30, 2020, rendered all Governor Whitmer’s

conduct after that date an unlawful exercise of the police power.3 Plaintiffs rely, in part, on

Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 689 (1982), which held that

“the Eleventh Amendment does not bar an action against a state official that is based on a theory

that the officer acted beyond the scope of his statutory authority.” See also Miami Univ.

Associated Student Gov’t v. Shriver, 735 F.2d 201, 204 (6th Cir. 1984) (“State officials are not

entitled to [E]leventh [A]mendment immunity if they are acting ultra vires.”). “[A] state officer

may be said to act ultra vires only when he acts ‘without any authority whatever.’” Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) (quoting Treasure Salvors,

458 U.S. at 697). The test to determine whether a state official has acted ultra vires is whether

the state official had a “colorable basis for the exercise of authority.” Id. (quoting Treasure

Salvors, 458 U.S. at 716 (White, J., concurring in the judgment in part and dissenting in part)).

3

Defendants argue that whether Governor Whitmer acted ultra vires is irrelevant because this lawsuit does

not challenge the lawfulness of the taking; it simply seeks “just compensation.” While this is correct, the lawfulness

of Governor Whitmer’s conduct is relevant to whether she is entitled to Eleventh Amendment immunity.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 13

There are several problems with Plaintiffs’ argument. First, Governor Whitmer’s

conduct can hardly be said to have been done without any authority. She issued the EOs in

accordance with then-existing Michigan laws. Nearly seven months after she began issuing the

EOs, the Michigan Supreme Court held that the laws on which she relied were an

“unconstitutional delegation of legislative power to the executive.” In re Certified Questions,

958 N.W.2d at 24. Plaintiffs ask us to construe the Michigan Supreme Court’s holding as

retroactively stripping Governor Whitmer of any authority she had; however, the opinion

actually suggests the holding was merely prospective. See id. at 6, 31 (concluding that “the

executive orders issued by the Governor in response to the COVID-19 pandemic now lack any

basis under Michigan law;” and Michigan law “cannot continue to provide a basis for the

Governor to exercise emergency powers”) (emphases added)). Second, Pennhurst and Treasure

Salvors, the two main cases on which Plaintiffs rely for this ultra vires argument, are both cases

in which the plaintiffs were seeking injunctive relief. Neither case involved a request for money

damages. In fact, in Treasure Salvors, the Supreme Court even stated that “[i]f the action is

allowed to proceed against the officer only because he acted without proper authority, the

judgment may not compel the State to use its funds to compensate the plaintiff for the injury.”

458 U.S. at 689; accord Ex parte Young, 209 U.S. 123 (1908). Because Plaintiffs are seeking

compensatory damages, the ultra vires theory of skirting Eleventh Amendment immunity is

inapplicable.

In sum, we hold that ratification of the Fifth or Fourteenth Amendments does not

constitute waiver of Eleventh Amendment immunity; nor can Defendants in this case be subject

to suit in federal court for allegedly acting ultra vires. To hold otherwise would require the panel

to effectively overrule Ladd, significantly expand the scope of PennEast, and ignore Treasure

Salvors. Because Eleventh Amendment immunity is sufficient to affirm the dismissal of

Plaintiffs’ complaint against each defendant, we decline to address the district court’s alternative

holding that Plaintiffs have failed to state a claim.

B. Motion to Amend

After Defendants moved to dismiss the complaint, Plaintiffs sought leave to amend their

complaint to add claims against Governor Whitmer and Director Gordon in their personal

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 14

capacities.4 In the same order that the district court granted Defendants’ motion to dismiss for

lack of subject-matter jurisdiction, the court also denied Plaintiffs’ motion to amend, finding that

any amendment to the complaint would be futile.

i. Standard of Review

Typically, this Court reviews denials of motions for leave to amend for an abuse of

discretion. U.S. ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399, 407 (6th Cir. 2016).

However, when a motion to amend is denied because amendment would be “futile,” this Court

reviews the district court’s decision de novo. Id.

ii. Analysis

In general, district courts “should freely give leave [to amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). But a court need not grant a motion to amend when the reason for

amendment is improper, “such as undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,

etc.” Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (quoting Foman v. Davis,

371 U.S. 178, 182 (1962) (emphasis added)). An amendment is futile when, after including the

proposed changes, the complaint still “could not withstand a Rule 12(b)(6) motion to dismiss.”

Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (quoting

Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)).

The district court held that amendment would be futile because even if Governor

Whitmer and Director Gordon were sued in their personal capacities, the EOs could not amount

to a taking. On appeal, Plaintiffs simply state that they seek to amend their complaint to clarify

the damages they suffered, but they make no discernible argument as to why any amendment

would not be futile. On the other hand, Defendants make two arguments in support of affirming

the district court. They first argue that takings claims require state action; and therefore, state

officials may not be held liable in a personal capacity. Second, Defendants argue that even if

4

Plaintiffs only seek to amend their complaint as it relates to Governor Whitmer and Director Gordon.

They have offered no explanation as to how amendment would save their claims against MDHHS.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 15

personal capacity suits are permissible, they would be entitled to qualified immunity. We need

not decide whether personal capacity suits are permitted under the Takings Clause because even

if we assume they are, Plaintiffs still lose under the doctrine of qualified immunity.

The doctrine of qualified immunity provides that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “While the defendant ‘bears the

burden of pleading’ a qualified immunity defense, ‘[t]he ultimate burden of proof is on the

plaintiff to show that the defendant is not entitled to qualified immunity.’” Palma v. Johns, 27

F.4th 419, 427 (6th Cir. 2022) (quoting Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir.

2017)) (brackets in original). In determining whether Defendants are entitled to qualified

immunity, we apply the well-established two-part inquiry: first, “do the facts alleged show that

the officer’s conduct violated a constitutional right? Second, is the right clearly established?”

Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1093 (6th Cir. 2019) (quoting Seales v. City of

Detroit, 724 F. App’x 356, 359 (6th Cir. 2018)). We are free to consider these inquiries in any

order. Godawa v. Byrd, 798 F.3d 457, 462–63 (6th Cir. 2015).

Assuming Plaintiffs alleged an unconstitutional taking, they have failed to show that the

alleged constitutional violation was clearly established.5 The Supreme Court has cautioned

courts “not to define clearly established law at a high level of generality.” Plumhoff v. Rickard,

572 U.S. 765, 779 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). But courts

also need not wait for the exact fact pattern to occur before concluding that a right has been

clearly established. Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“This is not to say that an

official action is protected by qualified immunity unless the very action in question has

previously been held unlawful.”). The question is “whether it would have been clear to a

5

In Gym 24/7 Fitness, LLC v. State, No. 355148, -- N.W.2d --, 2022 WL 982050 (Mich. Ct. App. March

31, 2022), the Michigan Court of Appeals rejected a nearly identical challenge by a group of gyms holding

substantially similar pandemic-related EOs could not support a takings claim under the U.S. Constitution or the

Michigan Constitution.

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 16

reasonable offic[ial] that the alleged conduct was unlawful in the situation he confronted.”

Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (internal quotation marks omitted).

Plaintiffs have not offered any argumentation as to why Defendants are not entitled to

qualified immunity. Nor do they direct the Court to any caselaw indicating that Defendants’

various orders violated a clearly established constitutional right. And for good reason: there is

no clearly established precedent that pandemic-era regulations limiting the use of individuals’

commercial properties can constitute a Fifth Amendment taking. In fact, the overwhelming

majority of caselaw indicates that such regulations are not takings. See, e.g., 36 Apartment

Assocs., LLC v. Cuomo, 860 F. App’x 215, 217 (2d Cir. 2021) (summary order) (concluding

summarily that plaintiffs-appellants’ argument that a COVID-19 regulation constituted a

physical or regulatory taking was “without merit.”); TJM 64, Inc. v. Harris, 526 F. Supp. 3d 331

(W.D. Tenn. 2021); Case v. Ivey, No. 2:20-CV-777-WKW, 2021 WL 2210589 (M.D. Ala., June

1, 2021), appeal filed, No. 21-12276 (11th Cir. July 2, 2021); Underwood v. City of Starkville,

No. 1:20-CV-00085-GHD-DAS, 2021 WL 1894900 (N.D. Miss. May 11, 2021); 1600 Walnut

Corp. v. Cole Haan Co. Store, 530 F. Supp. 3d 555 (E.D. Pa. 2021); MetroFlex Oceanside LLC

v. Newsom, 532 F. Supp. 3d 976 (S.D. Cal. 2021); State v. Wilson, 489 P.3d 925 (N.M. 2021);

Mission Fitness Ctr., LLC v. Newsom, No. 2:20-CV-09824-CAS-KSx, 2021 WL 1856552 (C.D.

Cal. May 10, 2021); Amato v. Elicker, 534 F. Supp. 3d 196 (D. Conn. 2021); Northland Baptist

Church of St. Paul v. Walz, 530 F. Supp. 3d 790 (D. Minn. 2021), aff’d, ---F.4th---, 2022 WL

2167935 (8th Cir. 2022); Flint v. Cnty. of Kauai, 521 F. Supp. 3d 978 (D. Haw. 2021);

Daugherty Speedway, Inc v. Freeland, 520 F. Supp. 3d 1070 (N.D. Ind. 2021); Peinhopf v.

Guerrero, No. 20-00029, 2021 WL 218721 (D. Guam Jan. 21, 2021), report and

recommendation adopted, No. 20-00029, 2021 WL 4972622 (D. Guam Feb, 5, 2021); Our

Wicked Lady LLC v. Cuomo, No. 21-CV-0165 (DLC), 2021 WL 915033 (S.D.N.Y. Mar. 9,

2021); TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828 (W.D. Tenn. 2020); Blackburn v. Dare Cnty.,

486 F. Supp. 3d 988 (E.D.N.C. 2020), appeal filed, No. 20-2056 (4th Cir. Oct. 2, 2020); Oregon

Rest. & Lodging Ass’n v. Brown, ---F. Supp. 3d---, 2020 WL 6905319 (D. Or. 2020); AJE Enter.

LLC v. Justice, No. 1:20-CV-229, 2020 WL 6940381 (N.D. W. Va. Oct. 27, 2020), appeal

dismissed, No. 20-2256, 2021 WL 2102318 (4th Cir. Jan. 27, 2021) (order); Bimber’s Delwood,

Inc v. James, 496 F. Supp. 3d 760 (W.D.N.Y. 2020); Luke’s Catering Serv., LLC v. Cuomo,

No. 21-2985 Skatemore, Inc., et al. v. Whitmer, et al. Page 17

485 F. Supp. 3d 369 (W.D.N.Y., 2020); Elmsford Apartment Assocs., LLC v. Cuomo, 469 F.

Supp. 3d 148 (S.D.N.Y. 2020), appeal dismissed, 860 F. App’x 215 (2d Cir. 2021) (mem. op.);

Lebanon Valley Auto Racing Corp. v. Cuomo, 478 F. Supp. 3d 389 (N.D.N.Y., 2020); Savage v.

Mills, 478 F. Supp. 3d 16 (D. Me., 2020); PCG-SP Venture I LLC v. Newsom, No. EDCV20-

1138 JGB (KKx), 2020 WL 4344631 (C.D. Cal. June 23, 2020); McCarthy v. Cuomo, No. 20-

CV-2124 (ARR), 2020 WL 3286530 (E.D.N.Y. June 18, 2020); Alsop v. DeSantis, No. 8:20-CV-

1052-T-23SPF, 2020 WL 9071427 (M.D. Fla. Nov. 5, 2020); but see Heights Apartments, LLC

v. Walz, 510 F. Supp. 3d 789 (D. Minn. 2020), rev’d, 30 F.4th 720 (8th Cir. 2022). Accordingly,

even if Plaintiffs were permitted to amend their complaint, Defendants would be entitled to

qualified immunity.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.