Petition for Writ of Certiorari — Michael Zito, et ux., Petitioners v. North Carolina Coastal Resources Commission

No. _____________

In The

Supreme Court of the United States

____________________

MICHAEL ZITO AND CATHERINE ZITO,

Petitioners,

v.

NORTH CAROLINA

COASTAL RESOURCES COMMISSION,

Respondent.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

J. DAVID BREEMER

Counsel of Record

GLENN E. ROPER

ERIN E. WILCOX

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

Counsel for Petitioners

i

QUESTION PRESENTED

Whether

the

Fourteenth

Amendment’s

incorporation

of

the

“self-executing”

Just

Compensation Clause abrogates state sovereign

immunity from federal takings claims?

ii

LIST OF ALL PARTIES

The parties to the judgment from which review is

sought are Michael and Catherine Zito. They were

parties in all proceedings below.

Respondent is the North Carolina Coastal

Resources Commission.

RULE 14.1(b)(iii) STATEMENT

The proceedings in the Eastern District of North

Carolina and Fourth Circuit identified below are

directly related to the above-captioned case in this

Court.

Zito v. North Carolina Coastal Resources

Commission, 8 F.4th 281 (4th Cir. Aug. 9, 2021)

Zito v. North Carolina Coastal Resources

Commission, 449 F. Supp. 3d 567 (E.D.N.C.

Mar. 27, 2020)

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

LIST OF ALL PARTIES ............................................. ii

RULE 14.1(b)(iii) STATEMENT ................................ ii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS AT ISSUE ........ 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 5

I.

FACTUAL BACKGROUND ............................ 6

II.

PROCEDURE................................................. 10

A. The District Court Decision ........................ 10

B. The Fourth Circuit Opinion ........................ 11

REASONS FOR GRANTING THE PETITION ....... 12

I.

THE DECISION BELOW

CONFLICTS WITH THIS COURT’S

JUST COMPENSATION CLAUSE

PRECEDENT ................................................. 13

A. The Principles at Issue ................................ 13

B. The Decision Below Conflicts With

This Court’s Precedent ................................ 15

iv

II.

1.

The decision conflicts with this

Court’s understanding of the

Just Compensation Clause ................... 15

2.

The Fourth Circuit decision is

incompatible with Knick ....................... 20

3.

The decision below conflicts with

precedent distinguishing takings

and due process concepts ...................... 22

THE DECISION BELOW RAISES AN

IMPORTANT QUESTION AS TO

WHETHER IMMUNITY ALLOWS

STATES TO EVADE THE DUTY

TO PAY FOR TAKINGS IN

FEDERAL COURT ........................................ 24

A. The Decision Below Renders the

Takings Clause Inferior to Other

Constitutional Rights .................................. 24

B. State Court Procedures for Seeking

Compensation for a State Taking Are

Often More Burdensome Than a Suit

Under the Federal Takings Clause ............ 26

III. FEDERAL COURTS ARE IN

CONFLICT ON THE ISSUE ......................... 29

CONCLUSION.......................................................... 32

APPENDIX

Opinion, U.S. Court of Appeals for the Fourth

Circuit, filed August 9, 2021 ............................ A-1

Order, U.S. District Court for the Eastern District of

North Carolina, filed March 27, 2020 ............. B-1

v

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) .................................. 13-14, 16

Allen v. Cooper, No. 5:15-CV-627-BO,

2021 WL 3682415

(E.D.N.C. Aug. 18, 2021) ................................ 29-30

Austin v. Arkansas State Highway Comm’n,

895 S.W.2d 941 (Ark. 1995) ................................ 26

Barron v. City of Baltimore,

32 U.S. (7 Pet.) 243 (1833) .................................. 16

Bay Point Props., Inc. v.

Mississippi Transp. Comm’n,

937 F.3d 454 (5th Cir. 2019) ................................. 5

California Coastal Comm’n v. Superior Court,

210 Cal. App. 3d 1488 (1989) .............................. 27

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897) ............................................. 16

City of Monterey v. Del Monte Dunes

at Monterey, Ltd.,

526 U.S. 687 (1999) ......................................... 3, 18

Community Housing Improvement

Program v. City of New York,

492 F. Supp. 3d 33 (E.D.N.Y. 2020) ................... 2-4

Devillier v. Texas, No. 3:20-cv-00223,

2021 WL 3889487

(S.D. Tex. July 30, 2021) ................................ 30-31

vi

DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004) ......................... 23, 26

Dolan v. City of Tigard,

512 U.S. 374 (1994) ............................................ 2-3

Edelman v. Jordan,

415 U.S. 651 (1974) ................................... 2, 14, 18

Esposito v. South Carolina Coastal Council,

939 F.2d 165 (4th Cir. 1991) ............................... 26

Ex parte Young,

209 U.S. 123 (1908) ......................................... 4, 14

Fair Assessment in Real Estate Ass’n, Inc. v.

McNary, 454 U.S. 100 (1981) .............................. 23

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

482 U.S. 304 (1987) .................................... 3, 15-18

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ............................................. 19

Florida Dep’t of Agric. & Consumer Services

v. Dolliver,

283 So. 3d 953 (Fla. Dist. Ct. App. 2019) ........... 27

Ford Motor Co. v. Dep’t of Treasury of Indiana,

323 U.S. 459 (1945) ................................. 14, 18, 22

Hair v. United States,

350 F.3d 1253 (Fed. Cir. 2003)....................... 31-32

Hans v. Louisiana,

134 U.S. 1 (1890) ................................................. 13

Hess v. Port Authority Trans–Hudson Corp.,

513 U.S. 30 (1994) ............................................... 14

vii

Hilton v. South Carolina Public

Railways Comm’n,

502 U.S. 197 (1991) ........................................ 13-14

Hise v. Tennessee,

968 S.W.2d 852 (Tenn. Ct. App. 1997)................ 26

Home Tel. & Tel. Co. v. City of Los Angeles,

227 U.S. 278 (1913) ............................................. 19

Hutto v. S.C. Ret. Sys.,

773 F.3d 536 (4th Cir. 2014) .......................... 10-11

Jacobs v. United States,

290 U.S. 13 (1933) ............................................... 15

Jevons v. Inslee, No. 1:20-CV-3182-SAB,

2021 WL 4443084

(E.D. Wash. Sept. 21, 2021) ................................ 25

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) .................................. passim

Knick v. Township of Scott, No. 17-647,

2018 WL 2733954 (U.S. June 4, 2018) ............... 27

Leistiko v. Sec’y of Army,

922 F. Supp. 66 (N.D. Ohio 1996) ....................... 31

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ............................................. 23

Local 860 Laborers’ Int’l Union of N. America

v. Neff, No. 1:20-CV-02714,

2021 WL 2477021

(N.D. Ohio June 17, 2021) ................................... 25

Long v. Area Manager, Bureau of Reclamation,

236 F.3d 910 (8th Cir. 2001) ............................... 26

viii

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................................... 18

Manning v. N.M. Energy, Minerals &

Natural Res. Dep’t.,

144 P.3d 87 (N.M. 2006) ...................................... 19

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ............................. 27

McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco,

496 U.S. 18 (1990) ............................................... 22

Milliken v. Bradley,

433 U.S. 267 (1977) ............................................. 14

Mitchum v. Foster,

407 U.S. 225 (1972) ............................................. 19

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 18

Pharmaceutical Research & Mfrs. of America

v. Williams, No. 20-1497,

2021 WL 963760 (D. Minn. Mar. 15, 2021) ........ 25

Reich v. Collins,

513 U.S. 106 (1994) .............................. 2, 11, 22-23

Seven Up Pete Venture v. Schweitzer,

523 F.3d 948 (9th Cir. 2008) ...................... 4, 23-24

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ....................................... 16, 18

Williamson County Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ....................................... 20, 28

ix

U.S. Constitution

U.S. Const. amend. V ............................................ 1, 30

U.S. Const. amend. XI ................................................ 1

U.S. Const. amend. XIV, § 1 ..................................... 16

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

28 U.S.C. § 1331 .......................................................... 1

15A NCAC 7J.0201 ..................................................... 9

15A NCAC 7J.0210 ..................................................... 8

15A NCAC 7H.0305(a)(6) ........................................... 8

15A NCAC 7H.0306(a)(11) ......................................... 8

N.C. Gen. Stat. § 113A-100, et seq. ............................ 7

N.C. Gen. Stat. § 113A-121(b) .................................... 9

N.C. Gen. Stat. § 113A-121.1 ..................................... 9

Other Authorities

Amar, Akhil Reed,

The Bill of Rights: Creation

and Reconstruction (1998)................................... 19

Amicus Brief of the Board of County

Commissioners of the County of

La Plata, et al., in Support of Respondents,

Palazzolo v. Rhode Island, No. 99-2047,

2001 WL 15620 (U.S. Jan. 3, 2001) .................... 18

x

Berger, Eric, The Collision of the

Takings and State Sovereign

Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ........... 3, 15, 17

Brief for the United States as Amicus

Curiae Supporting Appellee, First

English Evangelical Lutheran

Church of Glendale v. County of

Los Angeles, No. 85-1199,

1986 WL 727420 (U.S. Nov. 4, 1986) ............. 17-18

Grant, Eric, A Revolutionary View of the

Seventh Amendment and the Just

Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) ......................... 19-20

Jackson, Vicki C. Jackson, The Supreme

Court, the Eleventh Amendment, and

State Sovereign Immunity,

98 Yale L.J. 1 (1988) ............................................ 18

Seamon, Richard H., The Asymmetry

of State Sovereign Immunity,

76 Wash. L. Rev. 1067 (2001).......................... 3, 15

Struve, Catherine T., Turf Struggles: Land,

Sovereignty, and Sovereign Immunity,

37 New Eng. L. Rev. 571 (2003) .......................... 18

1 Tribe, Laurence H., American

Constitutional Law (3d ed. 2000) ........................ 18

1

PETITION FOR WRIT OF CERTIORARI

Michael and Catherine Zito respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

8 F.4th 281 and reprinted at App. A. The order of the

district court granting Respondent’s motion to dismiss

is reported at 449 F. Supp. 3d 567 and reprinted at

App. B.

JURISDICTION

The district court had jurisdiction over this case

under 28 U.S.C. § 1331 and the Fifth Amendment to

the United States Constitution. The judgment of the

court of appeals was entered on August 9, 2021. App.

A. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment to the Constitution

provides, “nor shall private property be taken for

public use, without just compensation.” U.S. Const.

amend. V.

The Eleventh Amendment states: “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.”

2

INTRODUCTION

This case presents an important and persistent

question as to whether sovereign immunity overrides

the “self-executing” constitutional right to just

compensation for a taking when a state takes

property. The Just Compensation Clause provides

property owners with a monetary remedy whenever

the government takes property, Knick v. Township of

Scott, 139 S. Ct. 2162, 2171-72 (2019), and the

Fourteenth Amendment subjects states to this

compensation mandate. Dolan v. City of Tigard, 512

U.S. 374, 384 n.5 (1994). At the same time, sovereign

immunity bars suits against states for damages.

Edelman v. Jordan, 415 U.S. 651, 663 (1974). There is

thus “obvious tension” between these two

constitutional principles. Community Housing

Improvement Program v. City of New York (CHIP),

492 F. Supp. 3d 33, 40 (E.D.N.Y. 2020).

In the decision below, the Fourth Circuit held that

sovereign immunity precludes an unconstitutional

takings claim against a state in federal court when a

remedy exists in state court. App. A-13-14, 19. In so

holding, the court relied primarily on this Court’s

decision in Reich v. Collins, 513 U.S. 106 (1994). Reich

recognizes that the Due Process Clause supplies a

refund remedy for unconstitutionally appropriated

taxes in state court, but that sovereign immunity

would bar a refund claim in federal court. Id. at 110.

The court below held that Reich applies in the takings

context, and that the application of immunity to bar a

takings claim in federal court properly “reconcile[s]”

the “tension” between the Just Compensation Clause

and sovereign immunity.

3

The Fourth Circuit’s approach is not consistent

with this Court’s precedent. First, that precedent

establishes that the Just Compensation Clause

supplies a “self-executing,” monetary remedy for every

taking. First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 31516 (1987). Second, the Court has held that the just

compensation remedy is immediately actionable in

federal court when a taking occurs. Knick, 139 S. Ct.

at 2171-73. Finally, it has held that enactment of the

Fourteenth Amendment’s Due Process Clause

incorporated the Just Compensation Clause and thus

bound states to the federal just compensation

requirement for a taking of property. Dolan, 512 U.S.

at 384 n.5.

This Court has previously signaled that the

foregoing line of precedent leaves no room for the

argument that states enjoy sovereign immunity from

suits under the Takings Clause. First English, 482

U.S. at 315-16 & n.9 (rejecting Solicitor General’s

argument that the Just Compensation Clause cannot

be construed as remedial provision because that

would conflict with state immunity); City of Monterey

v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,

714 (1999) (questioning whether immunity “retains

its vitality” in the takings context). Nevertheless, the

Court has “surprisingly” never directly resolved the

conflict between sovereign immunity and the Just

Compensation Clause. Richard H. Seamon, The

Asymmetry of State Sovereign Immunity, 76 Wash. L.

Rev. 1067, 1067-68 (2001); Eric Berger, The Collision

of the Takings and State Sovereign Immunity

Doctrines, 63 Wash. & Lee L. Rev. 493, 496 (2006) (the

Court has “avoided the issue”); CHIP, 492 F. Supp. 3d

4

at 40 (noting the Court has not “decisively resolved the

conflict”).

The time has come to address the issue. The

question presented has percolated through the federal

appellate courts, and most have employed the same

Reich-based reasoning, and come to the same

incorrect conclusion as the court below—that

sovereign immunity trumps the Just Compensation

Clause in federal court. CHIP, 492 F. Supp. 3d at 40

(The “weight of authority among the circuits” is that

“sovereign immunity trumps the Takings Clause—at

least where . . . the state provides a remedy of its own

for an alleged violation.”); Seven Up Pete Venture v.

Schweitzer, 523 F.3d 948, 955 (9th Cir. 2008) (federal

appellate courts have “expressly or implicitly applied

the Reich rationale and held that the Eleventh

Amendment bars Fifth Amendment reverse

condemnation claims”).

Not only is that conclusion incompatible with the

character, scope, and importance of the right to just

compensation, it ultimately returns the Takings

Clause to second-class constitutional status by

stripping it of federal judicial protection when states

take property. See Knick, 129 S. Ct. at 2169-70. Other

constitutional rights are protected from state

intrusion in federal court through suits for injunctive

relief under Ex parte Young, 209 U.S. 123, 159 (1908).

But equitable relief is not available in most takings

cases. Knick, 139 S. Ct. at 2176. If sovereign immunity

bars federal actions for just compensation, as the

decision below holds, federal courts cannot protect the

Takings Clause from state violations—even as those

courts vindicate other constitutional rights under Ex

parte Young. This is inconsistent with the status of the

5

Takings Clause and leaves property owners

dependent on a maze of byzantine state court

procedures for vindication of their federal right to just

compensation.

The Court should grant the Petition to confirm

what enactment of the Fourteenth Amendment and

this Court’s decisions plainly suggest: takings claims

invoking the Just Compensation Clause against

states are a constitutionally grounded exception to

sovereign immunity. This will resolve confusion and

conflict in this area, put the Takings Clause on par

with other constitutional rights with respect to federal

protection, and ensure that the restraints on state

power promised by the Fourteenth Amendment do not

ring hollow. Bay Point Props., Inc. v. Mississippi

Transp. Comm’n, 937 F.3d 454, 456 n.1 (5th Cir. 2019)

(acknowledging that “‘the tension’ between state

sovereign immunity and the right to just

compensation . . . is [an issue] for the Supreme

Court”).

STATEMENT OF THE CASE

This case arises from the North Carolina Coastal

Resources Commission’s (Commission) refusal to

permit Michael and Catherine Zito (Zitos) to rebuild a

small beachfront home after a fire destroyed it in

2016. App. A-5. Because the Commission’s permit

denial stripped the Zitos’ lot of all economically

beneficial use, they Zitos sued in federal court,

alleging that the Commission’s action caused an

unconstitutional taking of their property. App. A-2.

The district court granted a motion to dismiss,

concluding that sovereign immunity shielded the

Commission from the Zitos’ takings claim in federal

6

court. App. B-2. The Fourth Circuit affirmed. App. A20.

I.

FACTUAL BACKGROUND

The Town of Nags Head is a small community on

North Carolina’s fabled Outer Banks. Resting along

the state’s eastern edge, these barrier islands draw

tourists and locals alike to their warm sand and

waters.

In 2008, the Zitos purchased a 1,700-square-foot

beach house at 10224 E. Seagull Drive, Nags Head to

use as a family vacation home and rental property.

App. A-3. Platted in 1977 and developed in 1982, the

Zitos’ home stood in an established residential

subdivision. Joint Appendix on Appeal (JA) at 23.

7

More than a dozen homes exist on either side of

the Zitos’ lot, and many others are located both

seaward and landward of the property. Id.

For eight years, between 2008 and 2016, the Zitos

spent family time at their beach house and rented it

out for income at other times. App. A-3. Sadly, on the

night of October 10, 2016, a fire burned the home to

the ground while it was unoccupied. Id. It was a total

loss; only the underground septic system remained

intact and unharmed. A photo showing the location of

the property after the fire is reproduced below.

JA at 24.

The Zitos soon decided to rebuild. Because their

property is near the shore, development on the lot

must comply with the North Carolina Coastal Area

Management Act (CAMA), N.C. Gen. Stat. § 113A100, et seq., and related regulations. App. at B-3.

8

Under the CAMA framework, coastal property that

lies within a designated Area of Environmental

Concern (AEC) is subject to a set-back rule that

requires development to occur a certain distance from

the shore.1 App. B-3. The set-back line is calculated

based on estimated annual beach erosion rates and

the location of the first line of stable, natural

vegetation. App. A-3-4. The rules require construction

to generally be set back from the line of vegetation at

a distance of at least 30 times the annual erosion rate.

App. A-4. However, a “grandfather” clause allows

development of less than 2,000 square feet on parcels

existing before June 1, 1979, to be set back only 60 feet

from the line of vegetation. Id.

The Zitos’ lot is in a coastal AEC that has an

official erosion rate of six feet per year. App. B-4. This

results in a 180-foot set-back requirement (30 times

the annual erosion rate of six feet). Id. Like adjacent

lots, the Zitos’ parcel is not 180 feet from the

vegetation line.2 App A-4. And while the lot is a

“grandfathered” one because it existed prior to 1979,

it also does not meet the lesser 60-foot set-back line

for such property. See id. Strict application of CAMA’s

set-back rules would accordingly bar development on

the Zitos’ property.

Nevertheless, in July, 2017, the Zitos submitted

an application to the Town of Nags Head to rebuild a

The Commission considers the “[r]eplacement of structures

damaged or destroyed by . . . fire” to be “development [that]

requires CAMA permits.” 15A NCAC 7J.0210.

1

The line of vegetation in the Town of Nags Head was

established as a “stable” line of vegetation in 2011 when the

Town carried out a beach renourishment project. See 15A NCAC

7H.0305(a)(6) & 7H.0306(a)(11).

2

9

home on their lot.3 The proposed home was to be

roughly the same size as the prior one, and within the

same footprint. Their proposal also included a new

driveway of clay, packed sand, or gravel to minimize

potential flooding concerns. Still, the Town denied the

Zitos’ application because the proposed development

was not compliant with the CAMA set-back rules.

App. A-5.

The Zitos subsequently filed a petition for a

variance from the preclusive CAMA rules with the

Commission. Id. They asserted, in part, that their

property would be rendered undevelopable without a

variance. In December 2018, the Commission

considered the Zitos’ petition at a public hearing.

Afterward, it issued a Final Agency Decision denying

the requested variance. Id. In so doing, the

Commission found that the Zitos could use their lot as

a campsite or for a stand-alone swimming pool.4

Under CAMA, local governments have initial permitting

jurisdiction over CAMA permits. See N.C. Gen. Stat. § 113A121(b); 15A NCAC 7J.0201. If the locality denies a permit, the

applicant may seek a variance from the Commission. N.C. Gen.

Stat. § 113A-121.1.

3

The Commission made that finding despite an affidavit from

the Deputy Planning Director and Zoning Administrator for the

Town of Nags Head stating that if the Zitos were not allowed to

rebuild a home, the local zoning code would not allow the

property to be used as a public campsite, or for a stand-alone

deck, storage shed, or swimming pool.

4

10

II.

PROCEDURE

A. The District Court Decision

The Zitos sued the Commission in the U.S.

District Court for the Eastern District of North

Carolina. They asserted that the agency’s refusal to

grant a variance allowing reconstruction of their home

resulted in a taking of their property under the Fifth

Amendment to the United States Constitution.5 App.

A-5.

The Commission soon moved to dismiss the case

as unripe based on the existence of alleged state

compensation procedures. App. B-5. Relying on Knick

v. Township of Scott, 139 S. Ct. 2162 (2019), the

district court denied the motion. The Commission

subsequently filed a second motion to dismiss. This

time, it asserted that Eleventh Amendment sovereign

immunity principles barred the Zitos’ Fifth

Amendment claim for just compensation. App. B-6.

The district court granted this motion, concluding that

it was bound to follow a prior Fourth Circuit decision,

Hutto v. S.C. Ret. Sys., 773 F.3d 536 (4th Cir. 2014),

which held that “the Eleventh Amendment bars Fifth

Amendment taking claims against States in federal

court where the State’s courts remain open to

adjudicate such claims.” App. B-11 (quoting Hutto,

773 F.3d at 552).

The district court’s ruling notes, however, that the

Fourth Circuit’s sovereign immunity analysis in Hutto

is in “tension with the Supreme Court’s reasoning in

5 Although the Zitos initially also raised a state law claim, they

later voluntarily dismissed that claim. App. B-5.

11

Knick.” It observed that, while “Knick removed the

state litigation requirement that had forced litigants

to file their takings claims under state law in state

court,” Hutto’s sovereign immunity barrier “forces

litigants who wish to pursue a takings claim under the

Fifth Amendment into state courts.” App. B-24.

Although the district court recognized that it had to

follow Hutto, it acknowledged “the significant

constitutional issues that the Zitos raise, and [ ] that

‘the guarantee of a federal forum rings hollow for

takings plaintiffs, who are forced to litigate their

claims in state court.’” App. B-25. (quoting Knick, 139

S. Ct. at 2167). The district court concluded that

“Knick foreshadows the day when the [Supreme]

Court will have to address the interplay between the

Fifth Amendment’s Just Compensation Clause and

the Eleventh Amendment.” App. B-24.

B. The Fourth Circuit Opinion

On appeal, the Fourth Circuit affirmed the

district court. App. A-3. Relying on Hutto, the Fourth

Circuit re-confirmed that sovereign immunity

precludes takings claims seeking just compensation in

federal court when state courts are open to such

claims. App. A-14, 20. In so holding, the court below

reiterated its belief that Reich, 513 U.S. at 110,

justifies a sovereign immunity barrier to takings

claims.

The Fourth Circuit also rejected the argument

that Knick undermines the conclusion that sovereign

immunity applies to federal court takings cases due to

the availability of state remedies. App. A-10-12. It

further rejected the contention that Knick renders

reliance on Reich improper because Knick

distinguishes Takings Clause and Due Process Clause

12

remedies. App A-12. The court below concluded that,

“[b]y treating the Takings Clause the same as other

constitutional rights, the Supreme Court [in Knick]

suggests that it remains subject to the same

limitations on those other rights—including sovereign

immunity.” App. A-13.

The Fourth Circuit then determined that North

Carolina offers an adequate two-suit process for the

Zitos to seek compensation for the taking of their

property by the Commission. It concluded that the

Zitos must first file a state court action to invalidate

the Commission action as a taking of property. If they

succeed, the Zitos may then file a second suit for

monetary compensation using a different state court

procedure. App. A-14-19. Finding this to be an

adequate state compensation remedy, the Fourth

Circuit held that “State sovereign immunity bars their

takings claims against the Commission in federal

court.” App. A-20.

Petitioners now timely file this Petition for Writ of

Certiorari.

REASONS FOR GRANTING THE PETITION

The Eleventh Amendment and the Fifth

Amendment’s Just Compensation Clause express two

of the most venerable constitutional principles in

existence: sovereign immunity for states and just

compensation for citizens whose property is taken for

public use. These principles function independently

and adequately in most cases. However, when a state

takes property without compensation, sovereign

immunity and the Just Compensation Clause—

applicable to states through the Fourteenth

Amendment—come into conflict. While the former

13

bars a damages award, the latter positively requires

it.

The Fourth Circuit’s holding that sovereign

immunity is superior to the right of compensation for

a taking conflicts with this Court’s jurisprudence,

diminishes the Just Compensation Clause, and

conflicts with the decisions of other courts, all of which

justifies review.

I.

THE DECISION BELOW

CONFLICTS WITH THIS COURT’S JUST

COMPENSATION CLAUSE PRECEDENT

A. The Principles at Issue

The Eleventh Amendment states: “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.” This Court has held that the

Amendment generally bars all suits against a state

entity absent the state’s consent to the suit. Hans v.

Louisiana, 134 U.S. 1, 21 (1890). Indeed, the Court

has explained that the text of the Eleventh

Amendment is not a full expression of the concept of

sovereign immunity. Thus, the state sovereign

immunity principles that animate the Eleventh

Amendment apply in state court, as well as in federal

court. Alden v. Maine, 527 U.S. 706, 712, 733, 749

(1999).6

6 Prior to Alden, the Court's precedent suggested that sovereign

immunity principles may not apply in state courts. Hilton v.

South Carolina Public Railways Comm’n, 502 U.S. 197, 204-05

14

There are exceptions. In particular, sovereign

immunity is inapplicable where “[t]he States have

consented” to suit “pursuant to the plan of the

[Constitutional] Convention or to subsequent

constitutional Amendments.” Id. at 755. Section 5 of

the Fourteenth Amendment allows Congress to

enforce Fourteenth Amendment rights against states

without respect to their immunity. Id. at 755-57. And,

in Ex parte Young, this Court recognized an exception

from sovereign immunity when a person sues state

officials for prospective relief from an ongoing

violation of federal law, 209 U.S. 123; see also,

Milliken v. Bradley, 433 U.S. 267, 289-90 (1977).

Under this framework, states and their officials

enjoy robust immunity from suits requiring a

payment of damages. Edelman, 415 U.S. at 666-67 (Ex

parte Young does not allow a suit seeking an

injunction that would result in retroactive monetary

relief); Ford Motor Co. v. Dep’t of Treasury of Indiana,

323 U.S. 459, 464 (1945) (Eleventh Amendment bars

a damages action against a State in federal court);

Hess v. Port Authority Trans–Hudson Corp., 513 U.S.

30, 48 (1994).

At the same time, it is now settled that the Just

Compensation Clause provides property owners with

a right to recover monetary compensation whenever

the government takes property. Knick, 139 S. Ct. at

2171-73. In fact, in most takings cases, property

owners can only seek compensation for a taking;

equitable relief is unavailable. Id. at 2176-77. While

the Just Compensation Clause remedy may be

(1991). But Alden clarified that “the States retain an analogous

constitutional immunity from private suits in their own courts,”

527 U.S. at 748.

15

relatively narrow, it is mandatory and “selfexecuting.” First English, 482 U.S. at 315-16. No

legislative action is necessary for the right to just

compensation to be effective; the Constitution itself

confers the right. Jacobs v. United States, 290 U.S. 13,

16 (1933) (claims “based on the right to recover just

compensation for property taken” do not require

“[s]tatutory recognition” but are “founded upon the

Constitution”).

Thus, while the Just Compensation Clause allows

a property owner to immediately seek compensation

for a taking of property in federal court, sovereign

immunity indicates that federal courts cannot apply

this rule if the state is a defendant. As a result, “[t]he

principles of sovereign immunity and just

compensation are on a collision course.” Seamon, 76

Wash. L. Rev. at 1067-68; Berger, 63 Wash. & Lee L.

Rev. at 494.

B. The Decision Below Conflicts With This

Court’s Precedent

The Fourth Circuit’s conclusion that sovereign

immunity prevails in the clash with the Just

Compensation Clause conflicts with this Court’s

jurisprudence.

1.

The decision conflicts with this

Court’s understanding of the

Just Compensation Clause

On several occasions, this Court has recognized

that the Just Compensation Clause is not just a

condition on the exercise of the government’s power to

take property; it supplies a damages remedy in the

event that government appropriates property without

payment. Indeed, in a series of opinions culminating

16

in Knick, the Court has emphasized that the monetary

remedy inherent in the Just Compensation Clause is

“self-executing.” That means the Constitution itself

gives a property owner a “claim for just compensation

at the time of the taking.” Knick, 139 S. Ct. at 2171

(quoting First English, 482 U.S. at 315). Indeed, the

Knick Court confirmed that the right to receive

payment for a taking is actionable in federal court, as

well as in state courts, as soon as a taking occurs. Id.

at 2171-73.

Of course, originally, the Just Compensation

Clause, and the remedy it provides, did not bind the

States; it applied only to the federal government.

Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 24751 (1833). But this changed with enactment of the

Fourteenth Amendment, which shifted the balance of

federal and state power and “required the States to

surrender a portion of the sovereignty that had been

preserved to them by the original Constitution.”

Alden, 527 U.S. at 756. In part, the Fourteenth

Amendment prohibited states from “depriv[ing] any

person of . . . property, without due process of law.”

U.S. Const. amend. XIV, § 1. This Court soon held that

the

Fourteenth

Amendment’s

due

process

requirement incorporated the Fifth Amendment’s

Just Compensation Clause. Chicago, B. & Q.R. Co. v.

City of Chicago, 166 U.S. 226, 239-41 (1897). By

incorporation, the just compensation requirement

“applies to the States as well as the Federal

Government.” Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 306 n.1

(2002).

17

The Fourth Circuit’s conclusion that property

owners cannot sue a state agency for just

compensation in federal court when a state takes

property rights is irreconcilable with the precedent

outlined above. If, under the Court’s precedent, (1) the

Just Compensation Clause mandates damages for

every taking (it does); and (2) that right is actionable

in federal court, (it is) and (3) states are bound by this

requirement through the Fourteenth Amendment

(they are), there is little room for the proposition,

adopted by the decision below, that states are exempt

from federal suits alleging a violation of the Takings

Clause. Berger, 63 Wash. & Lee L. Rev. at 519 (“[T]he

straight textual argument seems to require the

government to provide money damages [for a taking],

notwithstanding otherwise applicable sovereign

immunity bars.”).

Indeed, while this Court has not squarely

addressed the conflict between sovereign immunity

and the just compensation requirement, it has

indicated that the right to compensation is superior to

immunity. For instance, in First English, this Court

considered whether the Fifth Amendment provided a

damages remedy when a land use regulation causes a

taking, As amicus curiae, the United States argued

that “principles of sovereign immunity” prevented the

Court from interpreting the Fifth Amendment as “a

remedial provision.” 482 U.S. at 316 n.9; Brief for the

United States as Amicus Curiae Supporting Appellee,

No. 85-1199, 1986 WL 727420, at *26-30 (U.S. Nov. 4,

1986).

The First English Court rejected this position. 482

U.S. at 316 n.9 (“[T]he cases cited in the text . . . refute

the argument of the United States that ‘the

18

Constitution does not, of its own force, furnish a basis

for a court to award money damages against the

government.’” (quoting United States’ Amicus Brief)).

This conclusion “strongly suggests” the Just

Compensation Clause is an exception to sovereign

immunity. Vicki C. Jackson, The Supreme Court, the

Eleventh Amendment, and State Sovereign Immunity,

98 Yale L.J. 1, 115 n.454 (1988); see also Catherine T.

Struve, Turf Struggles: Land, Sovereignty, and

Sovereign Immunity, 37 New Eng. L. Rev. 571, 574

(2003); 1 Laurence H. Tribe, American Constitutional

Law § 6–38, at 1272 (3d ed. 2000) (observing, based on

First English, that the Takings Clause “trumps state

(as well as federal) sovereign immunity”).

Approximately a decade later, in Del Monte

Dunes, a plurality of the Court questioned whether

sovereign immunity “retains its vitality” in the

context of compensation-seeking takings claims. Del

Monte Dunes, 526 U.S. at 714. Further, this Court has

decided many takings cases against states without

concern that sovereign immunity might preclude

jurisdiction. See Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), Tahoe-Sierra, 535 U.S.

at 302. Indeed, in Palazzolo v. Rhode Island, 533 U.S.

606 (2001), amici directly raised sovereign immunity,

but the Court did not address it. See Amicus Brief of

the Board of County Commissioners of the County of

La Plata, et al., in Support of Respondents, No. 992047, 2001 WL 15620, at *20-21 (U.S. Jan. 3, 2001).

None of these takings cases directly rejected

sovereign immunity. But, since sovereign immunity is

a quasi-jurisdictional concern that can be raised at

any stage, Edelman, 415 U.S. at 678; Ford Motor Co.,

323 U.S. at 467, the fact that this Court’s takings

19

decisions routinely overlook the issue confirms what

other decisions suggest: sovereign immunity is not a

jurisdictional bar when faced with a takings claim

seeking a remedy under the Just Compensation

Clause. Manning v. N.M. Energy, Minerals & Natural

Res. Dep’t., 144 P.3d 87, 90 (N.M. 2006) (noting this

Court “has consistently applied the Takings Clause to

the states, and in so doing recognized, at least tacitly,

the right of a citizen to sue the state under the

Takings Clause”)

The Fourth Circuit’s conclusion thus conflicts with

this Court’s Just Compensation Clause precedent. But

even more, it ultimately fails to align with Congress'

intent to limit state power over individual rights

through enactment of the Fourteenth Amendment.

Mitchum v. Foster, 407 U.S. 225, 238-39 (1972)

(recognizing the role of the Amendment in elevating

“the Federal Government as a guarantor of basic

federal rights against state power”); Home Tel. & Tel.

Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913)

(adopting as the “theory of the Amendment” that “the

Federal judicial power is competent to afford redress

for [a] wrong” that violates the Fourteenth

Amendment); Akhil Reed Amar, The Bill of Rights:

Creation and Reconstruction 268 (1998) (noting that a

leading proponent of the Amendment stated it was

adopted in part to protect “citizens of the United

States, whose property, by State legislation, has been

wrested from them”). If Congress can act to enforce a

Fourteenth Amendment right without violating state

immunity, Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976). then certainly enactment of the Amendment

itself overrides that immunity when it includes a “selfexecuting” remedy like the right to compensation. Eric

Grant, A Revolutionary View of the Seventh

20

Amendment and the Just Compensation Clause, 91

Nw. U. L. Rev. 144, 199 (1996) (“It is a proposition too

plain to be contested that the Just Compensation

Clause of the Fifth Amendment is ‘repugnant’ to

sovereign immunity and therefore abrogates the

doctrine[.]”).

2.

The Fourth Circuit decision is

incompatible with Knick

Of course, in the decision below, the Fourth

Circuit did not simply hold that sovereign immunity

bars takings claims in federal court. It held that

sovereign immunity is a barrier “if state courts remain

open to adjudicating the claim.” App at A-20. This

conclusion is also irreconcilable with the Court’s

precedent.

As the district court observed, the Fourth Circuit’s

“state-court remedy requirement is in tension with

the Supreme Court’s reasoning in Knick.” App. at B24. In Knick, this Court overruled the rule, articulated

in Williamson County Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 194-96

(1985), that a federal takings claim cannot be raised

in federal court if compensation procedures are

available in state court. In rejecting this state

remedies/exhaustion rule, the Knick Court stated:

“The Fifth Amendment right to full compensation

arises at the time of the taking, regardless of posttaking remedies that may be available to the property

owner.” 139 S. Ct. at 2070. It further explained that

“the availability of any particular compensation

remedy, such as an inverse condemnation claim under

state law, cannot infringe or restrict the property

owner’s federal constitutional claim,” and this “allows

the owner to proceed directly to federal court.” Id. at

21

2171. In sum, because an uncompensated taking

violates “the self-executing Fifth Amendment at the

time of the taking, the property owner can bring a

federal suit at that time.” Id. at 2172.

While Knick “removed the state-litigation

requirement that had forced litigants to file their

takings claims under state law in state court,” the

Fourth Circuit’s decision in this case “still forces

litigants who wish to pursue a takings claim under the

Fifth Amendment into state courts” if their claim is

against a state. App. B-24. It is true, of course, that

Knick did not consider a takings claim against a state.

But nothing in Knick or related precedent supports

the idea that state remedies affect federal review

depending on the nature of the defendant; i.e.,

whether it is a state, rather than local entity. Knick,

139 S. Ct. at 2171 (“The fact that the State has

provided a property owner with a procedure that may

subsequently result in just compensation cannot

deprive the owner of his Fifth Amendment right to

compensation under the Constitution[.]”).

Federal judicial power to enforce the Takings

Clause does not hinge on what state courts are doing,

but on what the Fourteenth Amendment already did:

extended the just compensation requirement to the

states. This Court should grant the Petition to confirm

that state court remedies are as irrelevant to the

federal courts’ power to hear a takings claim against

a state as they are to its power over a claim against a

local government.

22

3.

The decision below conflicts with

precedent distinguishing takings

and due process concepts

Surprisingly, the court below looked primarily to

this Court’s Due Process Clause-based analysis in

Reich, rather than to takings precedent, in deciding

that sovereign immunity bars the Zitos’ takings claim.

This approach is inconsistent with precedent from this

Court distinguishing takings and due process

principles.

Reich held that the Due Process Clause requires a

state to provide a refund remedy in its own courts for

unconstitutionally collected taxes. 513 U.S. at 108-09;

see also McKesson Corp. v. Div. of Alcoholic Beverages

& Tobacco, 496 U.S. 18, 32 (1990) (noting the “State’s

obligation to provide retrospective relief as part of [a]

postdeprivation procedure” in its own courts). In so

holding, Reich found that sovereign immunity was not

a barrier: “‘a denial by a state court of a recovery of

taxes exacted in violation of the laws or Constitution

of the United States by compulsion is itself in

contravention of the Fourteenth Amendment,’ the

sovereign immunity States traditionally enjoy in their

own courts notwithstanding.” 513 U.S. at 109-10

(citation omitted). The Reich Court then noted, in

dicta, that “the sovereign immunity States enjoy in

federal court, under the Eleventh Amendment, does

generally bar tax refund claims from being brought in

that forum.” Id. at 110 (citing Ford Motor Co., 323 U.S.

at 459) (emphasis added).

The Fourth Circuit in this case, and other courts,

have concluded that Reich provides a compromise,

“third-way,” approach to the clash between sovereign

immunity and the Just Compensation Clause, one

23

that requires application of sovereign immunity in

federal court, but not in state court. App. at A-9; DLX,

Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004)

(citing Reich, 513 U.S. at 110). Indeed, it is not an

exaggeration to say that Reich is the single most

influential precedent on the issue of whether

sovereign immunity bars a takings claim in federal

court. Seven Up Pete Venture, 523 F.3d at 954-55

(noting the federal courts’ reliance on Reich in this

area of law); see also, DLX, 381 F.3d at 527. This

Court’s precedent does not justify such a role.

On numerous occasions, this Court has rejected

that contention that takings questions can be resolved

by due process answers. Knick, 139 S. Ct at 2174.

(“[T]he analogy from the due process context to the

takings context is strained . . . .”); Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 541-42 (2005) (divorcing

takings and due process principles). This doctrinal

separation holds true with respect to the scope of

potential monetary remedies under the Just

Compensation Clause and the Due Process Clause.

While the Court has clarified that the just

compensation remedy is self-executing and actionable

in federal court, Knick, 139 S. Ct. at 2170-72, it has

limited the due process tax refund remedy to state

court. Reich, 513 U.S. at 109-10; see also Fair

Assessment in Real Estate Ass’n, Inc. v. McNary, 454

U.S. 100 (1981) (holding tax claims non-justiciable in

federal court). This distinction is incompatible with

the idea, adopted below, that Reich’s due processbased, state court remedial analysis controls the issue

of whether the just compensation remedy applies in

federal court.

24

Reich simply does not address the issue in this and

other state takings cases: whether a damages remedy

that is self-executing in federal court overrides

sovereign immunity in federal court. Yet, with the

issue filtered through the circuit courts, most have

“expressly or implicitly applied the Reich rationale

and held that the Eleventh Amendment bars Fifth

Amendment reverse condemnation claims brought in

federal district court.” Seven Up Pete Venture, 523

F.3d at 955. At this point, only intervention from this

Court can correct the misapplication of Reich to the

Just Compensation Clause context.

This Court should grant the Petition in part to

limit Reich to the due process context, allowing the

issue to be resolved under Just Compensation Clause

precedent and the Fourteenth Amendment's

incorporation doctrine.

II.

THE DECISION BELOW RAISES

AN IMPORTANT QUESTION AS TO

WHETHER IMMUNITY ALLOWS STATES

TO EVADE THE DUTY TO PAY FOR

TAKINGS IN FEDERAL COURT

A. The Decision Below Renders the

Takings Clause Inferior to Other

Constitutional Rights

The Fourth Circuit’s conclusion that sovereign

immunity defeats the right to just compensation in

federal court is not only doctrinally untenable, it also

severely diminishes the scope and strength of the

constitutional right to just compensation. This result

flows from the monetary nature of the just

compensation remedy, which operates as a potential

25

barrier to the filing of takings claims in federal court

under Ex parte Young.

Most constitutional violations can, of course, be

redressed by injunctive relief, and this feature allows

citizens to invoke federal protection of their

constitutional rights against state interference under

Ex parte Young. But the Takings Clause is different

due to the just compensation provision; the usual

remedy for violations of that Clause is monetary, not

injunctive in nature. Knick, 139 S. Ct. at 2176. If

sovereign immunity bars federal takings claims in

federal court, as the decision below holds, the Takings

Clause is stripped of federal protection from state

intrusion. See, e.g., Jevons v. Inslee, No. 1:20-CV-3182SAB, 2021 WL 4443084, at *11 (E.D. Wash. Sept. 21,

2021); (refusing to hear a takings claim against a state

official under Ex parte Young because “[t]he relief

sought by Plaintiffs is foreclosed by the Supreme

Court’s decision in Knick. The remedy for a taking

under the Fifth Amendment is damages, not equitable

relief.”); Pharmaceutical Research & Mfrs. of America

v. Williams, No. 20-1497, 2021 WL 963760 (D. Minn.

Mar. 15, 2021) (dismissing an injunction-seeking

takings claim against state officials based on

unavailability of equitable relief); Local 860 Laborers’

Int’l Union of N. America v. Neff, No. 1:20-CV-02714,

2021 WL 2477021, at *6 (N.D. Ohio June 17, 2021)

(same). This result converts the right to compensation

into a second class right relative to other

constitutional rights when it comes to federal judicial

protection.

In the end, the loss of federal protection for

Takings Clause claims against states leaves people

like the Zitos dependent on state procedures for the

26

vindication of their federal right to compensation.

While local compensation processes are available in

many states, in some, including Arkansas and

Tennessee, there is no process at all because sovereign

immunity bars takings claims in both state court and

federal courts. Compare Austin v. Arkansas State

Highway Comm’n, 895 S.W.2d 941 (Ark. 1995)

(sovereign immunity barred a damages-seeking

takings claim against a state), with Long v. Area

Manager, Bureau of Reclamation, 236 F.3d 910, 91617 (8th Cir. 2001) (Eleventh Amendment bars takings

claims against states in the Eighth Circuit), and

compare Hise v. Tennessee, 968 S.W.2d 852, 853-55

(Tenn. Ct. App. 1997) (holding that immunity

precluded an inverse condemnation claim against the

State), with DLX, 381 F.3d at 527 (states are immune

from takings claims in the Sixth Circuit). This

transforms the Just Compensation Clause “into an

empty admonition.” See Esposito v. South Carolina

Coastal Council, 939 F.2d 165, 173 n.3 (4th Cir. 1991)

(Hall, J., dissenting) (If state immunity applies to

takings cases, “a recalcitrant state could nullify the

Just Compensation Clause by simply refusing to

furnish a procedure to assess and award

compensation. The Clause could be converted from a

fundamental constitutional right into an empty

admonition.”).

B. State Court Procedures for Seeking

Compensation for a State Taking Are

Often More Burdensome Than a Suit

Under the Federal Takings Clause

In

other states, available

state court

compensation

procedures

are

usually

more

burdensome, complicated, and uncertain than a

27

straightforward Takings Clause suit in federal court.

Brief of the Ohio Farm Bureau Federation as Amicus

Curiae in Support of Petitioner, Knick v. Township of

Scott, No. 17-647, 2018 WL 2733954 (U.S. June 4,

2018). Some states, including California and Florida,

require property owners to exhaust non-compensatory

litigation procedures as a prerequisite to filing a claim

for damages for a taking by a state. See, e.g.,

California Coastal Comm’n v. Superior Court, 210

Cal. App. 3d 1488, 1496 (1989) (property owner could

not seeking damages for a taking in inverse

condemnation because he had failed to first file an

action to invalidate the taking); Florida Dep’t of Agric.

& Consumer Services v. Dolliver, 283 So. 3d 953, 95557 (Fla. Dist. Ct. App. 2019) (summarizing a

complicated process in which the legislature must

make a special allocation of funds to pay for a takings

judgment and the takings victims can petition for that

allocation). This multi-layered process confuses,

delays, and sometimes prevents the vindication of the

Just Compensation Clause. Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304, 347-48 (1816) (Story, J.) (“The

Constitution has presumed . . . that State

attachments, State prejudices, State jealousies, and

State interests, might sometimes obstruct, or control,

or be supposed to obstruct or control, the regular

administration of justice.”).

This case provides an apt example. The

“exclusive” state court procedure for the Zitos to assert

a takings claim against the Commission does not

provide compensation if a taking is found. App. B-22.

It offers only an “invalidation” remedy. Id. at B-20.

The Fourth Circuit held that the Zitos must use this

procedure to determine if a taking occurred. If a state

court finds the Commission caused a taking, the Zitos

28

must then file a second lawsuit, under different state

procedures, to obtain compensation for the taking.

App. A-15-16. In other words, the Zitos must exhaust

a non-compensatory takings procedure to get to a

state procedure that might provide compensation for

taking of their property by the Commission. Id. at A16. Such a two-suit process has never been tried before

in North Carolina and there is no precedent that

directly supports or guides it. Moreover, this two-suit

state court process for obtaining compensation from

the Commission is inconsistent with the law of the

Just Compensation Clause, which does not require a

plaintiff to exhaust alternative remedies (like

invalidation) before suing for compensation. See

Williamson County Regional Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. at 193 (one

asserting a Takings clause violation need not pursue

a “declaratory judgment regarding the validity of

zoning and planning actions” prior to filing a suit for

compensation).

The right to just compensation was never meant

to be so complicated or protracted. This Court has

made clear that Just Compensation Clause requires

the government to pay for every taking, and that

payment is due as soon as a taking is found, not years

later, after a state court lawsuit. Knick, 139 S. Ct. at

2171-73. The states bound themselves to this regime

when they enacted the Due Process Clause in the

Fourteenth Amendment and subjected themselves to

the just compensation remedy incorporated in that

Clause. In concluding that sovereign immunity

negates these principles, the decision below

diminishes both the Fourteenth Amendment and the

Takings Clause.

29

III.

FEDERAL COURTS ARE

IN CONFLICT ON THE ISSUE

Many federal courts hold, in agreement with the

decision below (and based largely on Reich), that

sovereign immunity bars takings claims in federal

court. But some have rejected this outcome.

In Allen v. Cooper, No. 5:15-CV-627-BO, 2021 WL

3682415 (E.D.N.C. Aug. 18, 2021),7 a federal district

court rejected the reasoning of the decision below.

Allen involved an alleged taking of property arising

from North Carolina’s unauthorized use of private,

copyrighted images of the recovery of Queen Anne’s

Revenge—the former flagship of the pirate

Blackbeard. Id. at *1.

Relying primarily on Knick, the Allen Court

rejected the state’s sovereign immunity defense. It

concluded that Knick “decisively endorsed the decision

in First English, including its statement that the

Constitution, “‘of its own force, furnish[es] a basis for

the court to award money damages against the

government,’ notwithstanding principles of sovereign

immunity.” Id. at *5. The Allen court explained that

“the reasoning in Knick still applies, even though this

case [unlike Knick] involves the issue of sovereign

immunity.” Knick, it held, “fatally undermine[s]” the

idea “that sovereign immunity applies to cases against

States in federal courts when the State’s courts

remain open to adjudicate such claims.” Id. The Allen

court also rejected the conclusion that Reich justifies

The Allen decision was issued nine days after the Fourth

Circuit’s decision in this matter, an event of which the Allen court

was apparently not aware. An appeal has been filed in Allen.

7

30

applying sovereign immunity to takings claims. Id. at

*6.

The Allen court then looked to the Fourteenth

Amendment and concluded it abrogated sovereign

immunity:

The text of the Fifth Amendment supports

a finding of automatic abrogation [of

immunity]. The Fifth Amendment Takings

Clause is one of only two constitutional

clauses that dictate a particular remedy,

stipulating that private property shall not “be

taken for public use, without just

compensation.” U.S. Const. amend. V.

Although the Fifth Amendment only applies

to the federal government, the just

compensation requirement was extended to

the

States

through

the

Fourteenth

Amendment. Since the Constitution explicitly

requires “just compensation,” the text of the

Fifth Amendment seems to require the

government to provide money damages

despite any applicable sovereign immunity

bars, and there is no Eleventh Amendment

language requiring a different outcome.

Id. at *8 (internal citations omitted).

Thus, the Allen decision conflicts with the Fourth

Circuit’s decision in this case. It is not alone in that

regard.

In Devillier v. Texas, No. 3:20-cv-00223, 2021 WL

3889487 (S.D. Tex. July 30, 2021), another district

court rejected the reasoning of the decision below in

holding a takings claim against a state proper in

federal court, notwithstanding state immunity.

31

In Devillier, property owners asserted that the

state caused a compensable taking by knowingly

constructing and maintaining an interstate highway

in a way that flooded and destroyed their property. Id.

at *2-3. When the state asserted sovereign immunity,

the court rejected it, based in part on the selfexecuting nature of the Just Compensation Clause.

The court explained:

Drawing support from Alden, several state

appellate courts have concluded that, even

without an express waiver of sovereign

immunity, the text of the Fifth Amendment

mandates a remedy of just compensation.

These courts have held that the purpose of the

Fifth Amendment’s Takings Clause would be

subverted if private takings claims against a

state were blocked by sovereign immunity.

Id. at *7.

Concluding that it “agree[s] with and adopt[s] the

reasoning provided by these courts,” id., the Devillier

court denied the state’s immunity defense, in conflict

with the decision below.

Several other federal courts have also concluded,

with less analysis, that the Just Compensation Clause

overrides sovereign immunity in a takings suit. See

Leistiko v. Sec’y of Army, 922 F. Supp. 66, 73 (N.D.

Ohio 1996) (“The Just Compensation Clause, with its

self-executing language, waives sovereign immunity

because it can fairly be interpreted as mandating

compensation by the government for the damage

sustained.”); Hair v. United States, 350 F.3d 1253,

1257 (Fed. Cir. 2003) (“[S]overeign immunity does not

protect the government from a Fifth Amendment

32

Takings claim because the constitutional mandate is

‘self-executing.’”).

The Court should grant the Petition to resolve the

conflict among the courts on the issue of whether the

just compensation requirement incorporated in the

Fourteenth

Amendment

abrogates

sovereign

immunity when states are charged with taking of

property.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

DATED: October 2021.

Respectfully submitted,

J. DAVID BREEMER

Counsel of Record

GLENN E. ROPER

ERIN E. WILCOX

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

Counsel for Petitioners