Petition for Writ of Certiorari — Dennis O'Connor, Petitioner v. Rachel Eubanks, et al.

No. ___________

In The

Supreme Court of the United States

____________________

DENNIS O’CONNOR,

Petitioner,

v.

RACHAEL EUBANKS, in her personal capacity;

TERRY STANTON, in his personal capacity;

STATE OF MICHIGAN,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

PHILLIP L. ELLISON

Outside Legal Counsel PLC

P.O. BOX 107

Hemlock, MI 48626

Telephone: (989) 642-0055

pellison@olcplc.com

*Counsel licensed in

Washington, Oregon,

and Florida

J. DAVID BREEMER

Counsel of Record

CHRISTINA M. MARTIN*

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

CMartin@pacificlegal.org

Counsel for Petitioner

i

QUESTIONS PRESENTED

1. Whether a state’s constitutional obligation to

pay just compensation when taking property waives

its sovereign immunity from a claim seeking damages

for an unconstitutional taking?

2. Whether a property owner may sue a state

official in their personal capacity under 42 U.S.C.

§ 1983 for a violation of the Takings Clause, as the

First Circuit holds, or whether such a personal

capacity suit is categorically “barred,” as the Sixth

Circuit holds?

ii

CORPORATE DISCLOSURE STATEMENT

Petitioner has no parent corporation and no stock.

STATEMENT OF RELATED PROCEEDINGS



O’Connor v. Eubanks, 83 F.4th 1018 (6th Cir.

Oct. 6, 2023)



O’Connor v. Eubanks, No. 1:21-cv-12837, 2022

WL 4009175 (E.D. Mich. Sept. 2, 2022)



O’Connor v. Eubanks, No. 1:21-cv-12837, 2022

WL 6576955 (E.D. Mich. June 30, 2022)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ...................................... vi

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

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

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

CONSTITUTIONAL AND STATUTORY

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

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION ......... 2

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

A. Legal Background.......................................... 5

B. Facts and Procedure ...................................... 6

1. The district court decision ....................... 7

2. The decision below ................................... 8

3. Judge Thapar’s concurrence .................. 10

REASONS FOR GRANTING THE PETITION ....... 11

I. THE DECISION BELOW RAISES

AN IMPORTANT QUESTION AS TO

WHETHER SOVEREIGN IMMUNITY

PRECLUDES A SUIT SEEKING JUST

COMPENSATION FOR A TAKING

BY A STATE ..................................................... 12

A. The Legal Landscape .................................. 12

iv

B. The Decision Below Conflicts with

History and Precedent................................. 17

1. The decision conflicts with

founding-era understandings ................ 17

2. The decision below conflicts

with this Court’s precedent ................... 20

II. THE DECISION BELOW PRESENTS

AN IMPORTANT QUESTION, ON

WHICH COURTS CONFLICT, AS TO

WHETHER A PROPERTY OWNER

MAY SUE OFFICIALS IN THEIR

PERSONAL CAPACITY FOR AN

UNCONSTITUTIONAL TAKING ................... 24

A. The Decision Below Magnifies a

Federal Conflict on the Viability

of Personal Capacity Takings

Claims Under 42 U.S.C. § 1983 .................. 24

1. The Sixth Circuit is in conflict

with the First Circuit ............................. 25

2. The case law in most circuits is

in disagreement on the issue of

personal capacity takings claims........... 28

B. The Sixth Circuit’s Decision Is

Inconsistent with This Court’s

Precedent ..................................................... 31

C. The Decision Below Is Inconsistent

with Constitutional History ........................ 34

CONCLUSION.......................................................... 36

v

APPENDIX

Opinion, U.S. Court of Appeals for the

Sixth Circuit, filed October 6, 2023 .................... 1a

Order Overruling Objections, Accepting and

Adopting the Magistrate Judge’s June 30,

2022 Report and Recommendation, and

Granting Defendants’ Motion to Dismiss

[3, 9, 21, 22, 23], U.S. District Court,

Eastern District of Michigan,

filed September 2, 2022 ..................................... 21a

Report and Recommendation on Defendants’

Motion to Dismiss (ECF No. 9),

U.S. District Court, Eastern District

of Michigan, filed June 30, 2022 ....................... 34a

Order denying petitions for rehearing en banc,

U.S. Court of Appeals for the Sixth Circuit,

filed December 19, 2023 .................................... 51a

Relevant Statutes, Mich. Comp. Laws § 567.223

and §§ 567.242–567.245 .................................... 52a

First Amended Class Action Complaint (without

exhibits), U.S. District Court, Eastern District

of Michigan, filed February 3, 2022 .................. 57a

vi

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ................................. 13–14, 34

Asociación de Subscripción Conjunta del

Seguro de Responsabilidad

Obligatorio v. Flores Galarza,

484 F.3d 1 (1st Cir. 2007) ........................ 25–26, 28

Austin v. Arkansas State Highway Comm’n,

895 S.W.2d 941 (Ark. 1995) .......................... 23–24

Baker v. City of McKinney,

93 F.4th 251 (5th Cir. 2024) .................................. 4

Barron v. City of Baltimore,

32 U.S. (7 Pet.) 243 (1833) .................................. 14

Blatchford v. Native Village of

Noatak & Circle Village,

501 U.S. 775 (1991) ............................................. 13

Bridge Aina Le’a, LLC v.

Hawaii Land Use Comm’n,

125 F. Supp. 3d 1051

(D. Haw. 2015) ................................... 26, 28, 30–31

Brown v. Legal Found. of Wash.,

538 U.S. 216 (2003) ....................................... 15–16

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ....................................... 15, 33

Chicago, Burlington & Quincy R.R. Co. v.

City of Chicago,

166 U.S. 226 (1897) ............................. 3, 15, 19–21

Citadel Corp. v. Puerto Rico Highway Auth.,

695 F.2d 31 (1st Cir. 1982) .................................. 16

vii

City of Monterey v. Del Monte Dunes

at Monterey, Ltd.,

526 U.S. 687 (1999) ........................... 11–12, 22, 32

Community Housing Improvement

Program v. City of New York,

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

DeVillier v. Texas,

601 U.S. ---, --- S. Ct. ---,

2024 WL 1624576 (2024) ....................................... 7

District of Columbia v. Wesby,

583 U.S. 48 (2018) ................................................. 4

Dolan v. City of Tigard,

512 U.S. 374 (1994) ......................................... 5, 35

Donnelly v. Maryland, No. 20-3654,

2022 WL 4017437 (D. Md. Sept. 1, 2022) ........... 26

Edelman v. Jordan,

415 U.S. 651 (1974) ......................................... 2, 13

EEE Minerals, LLC v. North Dakota,

81 F.4th 809 (8th Cir. 2023) ................................ 16

Everest Foods Inc. v. Cuomo,

585 F. Supp. 3d 425 (S.D.N.Y. 2022) .................. 28

First English Evangelical Lutheran Church

of Glendale v. Los Angeles County,

482 U.S. 304 (1987) ................................. 11, 14, 21

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ............................................. 23

Garvie v. City of Ft. Walton Beach,

366 F.3d 1186 (11th Cir. 2004) ........................... 30

Gerlach v. Rokita,

95 F.4th 493 (7th Cir. 2024) ................................ 27

viii

Glow In One Mini Golf, LLC v. Walz,

37 F.4th 1365 (8th Cir. 2022) .............................. 29

Gunter v. Atl. Coast Line R.R. Co.,

200 U.S. 273 (1906) ..................................... 2–3, 19

Hafer v. Melo,

502 U.S. 21 (1991) ..........................3, 25, 31–32, 34

Hair v. United States,

350 F.3d 1253 (Fed. Cir. 2003) ............................ 23

Hans v. Louisiana,

134 U.S. 1 (1890) ........................................... 12–13

Herman v. Town of Cortlandt, Inc.,

No. 18-CV-2440, 2023 WL 6795373

(S.D.N.Y. Oct. 13, 2023) ...................................... 28

Hinkle Family Fun Center, LLC v. Grisham,

No. 22-2028, 2022 WL 17972138

(10th Cir. Dec. 28, 2022).............................. 4–5, 25

Howell v. Miller,

91 F. 129 (6th Cir. 1898) ............................... 19–20

In The Case of the King’s Prerogative

in Salt-peter,

12 Coke R. 13 (1606) ............................................ 17

Katsaros v. Serafino, No. 300CV288,

2001 WL 789322 (D. Conn. Feb. 28, 2001) ... 28–29

Kentucky v. Graham,

473 U.S. 159 (1985) ....................................... 24–25

Knick v. Township of Scott,

588 U.S. 180 (2019) ......................... 3, 5, 11, 34–36

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ............................... 16

ix

Langdon v. Swain,

29 F. App’x 171 (4th Cir. 2002) ......... 26–27, 30–31

Leistiko v. Sec’y of Army,

922 F. Supp. 66 (N.D. Ohio 1996) ....................... 23

Lewis v. Clarke,

581 U.S. 155 (2017) ....................................... 32–34

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ........................................... 22

Lucien v. Johnson,

61 F.3d 573 (7th Cir. 1995) ................................. 22

Luder v. Endicott,

253 F.3d 1020 (7th Cir. 2001) ............................. 27

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

Natural Res. Dep’t,

144 P.3d 87 (N.M. 2006) ...................................... 22

Marina Point Dev. Assocs. v.

Cnty. of San Bernardino,

No. 5:19-CV-00964, 2020 WL 2375221

(C.D. Cal. Feb. 19, 2020) ............................... 27, 31

Merritts v. Richards,

62 F.4th 764 (3d Cir. 2023) ............................. 4, 29

Monroe v. Pape,

365 U.S. 167 (1961) ............................................. 36

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) ................................ 4

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 22

PDCM Associates, SE v. Quiñones, No. 15-1615,

2016 WL 8711711 (D.P.R. Apr. 1, 2016) ............. 26

x

PennEast Pipeline Co. v. New Jersey,

141 S. Ct. 2244 (2021) ............................... 3, 13, 19

Reed v. Long,

506 F. Supp. 3d 1322 (M.D. Ga. 2020) ................ 30

Reichle v. Howards,

566 U.S. 658 (2012) ............................................... 4

Reyes v. Dorchester Cnty. of South Carolina,

No. 2:21-cv-00520,

2022 WL 820029 (D.S.C. 2022) ..................... 26–27

Romano v. Bible,

169 F.3d 1182 (9th Cir. 1999) ............................. 35

Scheuer v. Rhodes,

416 U.S. 232 (1974) ........................... 24, 32, 35–36

Simonds v. Boyer, No. 2:21-cv-841,

2022 WL 11964613 (W.D. Pa. Oct. 20, 2022) ..... 29

Sinnickson v. Johnson,

17 N.J.L. 129 (1839) ............................................ 18

Skatemore, Inc. v. Whitmer,

40 F.4th 727 (6th Cir. 2022) .................................. 8

Spencer v. Benison, No. 7:16-cv-01334,

2018 WL 4896389 (N.D. Ala. Oct. 9, 2018) ......... 30

Sterling Hotels, LLC v. McKay,

71 F.4th 463 (6th Cir. 2023) .................................. 9

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ....................................... 15, 22

Tindal v. Wesley,

167 U.S. 204 (1897) ............................................. 32

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) ....................................... 13, 18

xi

United States v. Klamath & Moadoc Tribes,

304 U.S. 119 (1938) ............................................. 14

Vicory v. Walton,

730 F.2d 466 (6th Cir. 1984) ......4, 9–11, 29, 31, 33

Vill. of Norwood v. Baker,

172 U.S. 269 (1898) ............................................. 21

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) ............................................... 7

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ............................................... 32

Wilson v. Civil Town of Clayton,

839 F.2d 375 (7th Cir. 1988) ............................... 35

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) ......................................... 18–19

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) .................................. 16

U.S. Constitution

U.S. Const. amend. V .................................................. 1

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

U.S. Const. amend. XIV .............................................. 2

U.S. Const. amend. XIV, § 1 ..................................... 14

Statutes

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

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

42 U.S.C. § 1983

..................... 2–5, 7, 9, 11–12, 24–25, 27–29, 31–36

Mich. Comp. Laws § 567.241(1) ................................. 6

xii

Other Authorities

Amicus Brief of the Board of County

Commissioners of the County of La Plata,

Colorado, in Support of Respondents,

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

2001 WL 15620 (U.S. Jan. 3, 2001) .............. 22–23

Berger, Eric, The Collision of the Takings and

State Sovereign Immunity Doctrines,

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

1 Blackstone, William,

Commentaries on the Laws of England (1753) ... 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) .................. 21

Cong. Globe, 39th Cong., 1st Sess. (1866)................ 15

Cong. Globe, 42d Cong., 1st Sess. (1871) ................. 11

Cooley, Thomas M., A Treatise on the

Constitutional Limitations (4th ed. 1878) .......... 18

Eubanks v. O’Connor, Supreme Court Docket

No. 23A758, Application to Extend Time to

File a Petition (Feb. 9, 2024) ............................... 10

Grant, Eric, A Revolutionary View of the Seventh

Amendment and the Just Compensation

Clause, 91 Nw. U. L. Rev. 144 (1996) ................. 23

Grotius, Hugo,

De Jure Belli et Pacis (On the

Law of War and Peace) (1625)............................. 17

xiii

Jackson, Vicki C., The Supreme Court, the

Eleventh Amendment, and State Sovereign

Immunity, 98 Yale L.J. 1 (1988) ......................... 14

2 Kent, James,

Commentaries on American Law (1827) ....... 17–18

Mills, Henry E. & Abbott, Augustus L., Mills on

the Law of Eminent Domain (2d ed. 1888) ......... 18

Nichols, Philip,

The Power of Eminent Domain (1909) .......... 17, 21

Seamon, Richard H., The Asymmetry

of State Sovereign Immunity,

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

2 Story, Joseph,

Commentaries on the Constitution

of the United States (3d ed. 1858) ....................... 19

Struve, Catherine T., Turf Struggles: Land,

Sovereignty, and Sovereign Immunity,

37 New Eng. L. Rev. 571 (2003) .......................... 22

1 Tribe, Laurence H.,

American Constitutional Law (3d ed. 2000) ....... 22

1

PETITION FOR WRIT OF CERTIORARI

Dr. Dennis O’Connor respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

83 F.4th 1018 (6th Cir. 2023) and reprinted at App.1a.

The order of the district court granting Respondents’

motion to dismiss is reported at 2022 WL 4009175

(E.D. Mich. Sept. 2, 2022), and reprinted at App.21a.

JURISDICTION

The district court had jurisdiction over this case

under 28 U.S.C. § 1331 and the Fifth and Fourteenth

Amendments to the United States Constitution. The

Sixth Circuit issued its decision on October 6, 2023,

App.1a, and denied rehearing en banc on

December 19, 2023. App.51a. This Court granted an

extension of time of 40 days to file a Petition for

Certiorari, extending the filing date up to and

including April 29, 2024. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

The Fifth Amendment to the U.S. Constitution

provides, “nor shall private property be taken for

public use, without just compensation.”

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

The Fourteenth Amendment to the U.S.

Constitution states, in relevant part, “nor shall any

State deprive any person of life, liberty, or property,

without due process of law.”

42 U.S.C. § 1983 states, in relevant part,

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress[.]

Mich. Comp. Laws § 567.223 and §§ 567.242–

567.245 and are set out at App.52a–56a.

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

This case presents two important and recurring

questions pertaining to whether and when a property

owner can sue state officials for an unconstitutional

taking of private property. The first question asks

whether a state’s sovereign immunity bars a suit

seeking damages from the state or its officials for an

unconstitutional taking of property.

States are generally immune from suit because of

their sovereign status, Edelman v. Jordan, 415 U.S.

651, 663 (1974), unless they consent to be sued or

waive their immunity. Gunter v. Atl. Coast Line R.R.

Co., 200 U.S. 273, 284 (1906). On the other hand, this

Court has held that, under the Just Compensation

Clause, the government has a duty to pay just

3

compensation when it takes property. Knick v.

Township of Scott, 588 U.S. 180, 191–94 (2019).

Further, states are subject to this constitutional duty

through the Fourteenth Amendment’s Due Process

Clause. Chicago, Burlington & Quincy R.R. Co. v. City

of Chicago, 166 U.S. 226, 235–41 (1897). The states’

immunity from suits for damages accordingly conflicts

with its obligation to compensate an owner when it

takes property without providing contemporaneous

compensation. 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 Sixth Circuit resolved

this clash in favor of sovereign immunity. App.9a. Its

decision carves out a gaping loophole in the Just

Compensation Clause for states, and is inconsistent

with this Court’s jurisprudence. See Chicago, B. &

Q.R. Co., 166 U.S. at 236 (states are subject to the Just

Compensation Clause). Since the constitutional

founding, it has been understood that the government

impliedly promises and agrees to pay compensation

when it exercises the power to take property. The act

of taking property itself negates the state’s sovereign

immunity from a claim for compensation, PennEast

Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2258

(2021); Gunter, 200 U.S. at 284, but the Sixth Circuit

held to the contrary.

The second question asks whether a property

owner may sue state officials in their personal

capacity for an unconstitutional taking of property

under 42 U.S.C § 1983. This Court has held that

personal capacity suits are permissible against state

officials, notwithstanding sovereign immunity. Hafer

v. Melo, 502 U.S. 21 (1991). Yet, the decision below

4

holds that personal capacity claims under 42 U.S.C

§ 1983 are categorically barred in the Sixth Circuit

when they assert a violation of the Takings Clause.

App.6a n.2; see also App.12a (Thapar, J., concurring).

Thus, the Sixth Circuit summarily dismissed

O’Connor’s personal capacity takings claim, without

applying the normal “qualified immunity” analysis

that governs the viability of such claims.1 District of

Columbia v. Wesby, 583 U.S. 48, 62 (2018); see also

App.11a–12a (Thapar, J., concurring).

In so doing, the decision below exacerbates a deep

conflict among the federal courts on whether a

personal capacity suit under Section 1983 is viable

when it asserts an unconstitutional taking of

property. Merritts v. Richards, 62 F.4th 764, 776 n.7

(3d Cir. 2023) (“courts have reached different

conclusions” on the issue of personal capacity takings

suits); Baker v. City of McKinney, 93 F.4th 251, 255

(5th Cir. 2024) (Elrod, J., and Oldham, J., dissenting

from denial of rehearing en banc) (“[I]t is disputed

whether individual officials may be individually liable

in damages for violating the Takings Clause at all.”)

(citing Vicory v. Walton, 730 F.2d 466, 467 (6th Cir.

1984), and O’Connor v. Eubanks, 83 F.4th 1018, 1026

(6th Cir. 2023) (Thapar, J., concurring)); Hinkle

Family Fun Center, LLC v. Grisham, No. 22-2028,

2022 WL 17972138, at *4 n.2 (10th Cir. Dec. 28, 2022)

(“[s]ome circuits and judges have rejected or expressed

1 Under this Court’s “qualified immunity” doctrine, a personal

capacity claim under Section 1983 is generally subject to

dismissal unless the plaintiff shows that (1) the officials violated

a federal right, and (2) the unlawfulness of their conduct was

“clearly established at the time.” District of Columbia v. Wesby,

583 U.S. 48, 63 (2018) (quoting Reichle v. Howards, 566 U.S. 658,

664 (2012)).

5

doubt about such claims, while “[o]thers have

indicated (at least implicitly) that such claims might

proceed”).

The Sixth Circuit’s rejection of personal capacity

takings suits under 42 U.S.C § 1983 is also

inconsistent with this Court’s jurisprudence, App.11a

(Thapar, J., concurring), and with “constitutional

history.” App.13a–15a (Thapar, J., concurring).

Further, the decision below ultimately turns the

Takings Clause into a “poor relation” among the rights

protected under 42 U.S.C § 1983, Knick, 588 U.S. at

189 (quoting Dolan v. City of Tigard, 512 U.S. 374, 392

(1994)), since courts, including the Sixth Circuit,

routinely allow litigants to bring personal capacity

suits for the violation of other constitutional rights.

See App.6a–9a (adjudicating a personal capacity due

process claim).

The Court should grant the Petition to hold that a

property owner may sue a state and its officers, in

their official and personal capacities, for damages for

an unconstitutional taking of property, thereby

ensuring that a viable federal remedy exists for a

taking by a state. See App.10a (Thapar, J., concurring)

(“[O]ur circuit has closed the federal courthouse doors

on takings claims.”); see also App.18a.

STATEMENT OF THE CASE

A. Legal Background

Michigan’s Uniform Unclaimed Property Act

(“UUPA”) governs the disposition of unclaimed (but

not abandoned) property. Such property can include

monies from checking and savings accounts, unpaid

wages, securities, life insurance payouts, uncashed

checks, unredeemed rebates, and the contents of

6

inactive safe deposit boxes. App.3a. When these assets

are held by third parties without activity for a period

of time, they become treated under Michigan law as

“unclaimed property,” and are subject to the state’s

UUPA. Id.

When the state acquires unclaimed property under

the Act, it “assumes custody and responsibility for the

safekeeping of the property,” Mich. Comp. Laws

§ 567.241(1), holding it “in trust for the benefit of the

rightful owner.” App.3a (citation omitted).

The state may liquidate assets in its custody after

the owner is given notice and fails to file a claim for

return of the property. App 3a. If the state liquidates

assets, the UUPA allows the owner to file an

administrative claim for the “net proceeds” of the

liquidation sale. Id. The Act also allows property

owners to recover interest earned on their assets while

in state control, but only if the property was

generating interest before the state took custody. Id.

If the assets were not accruing interest before the

state took custody, the owner cannot recover any

interest that accrued on their property. App.3a–4a.

B. Facts and Procedure

Two corporations holding monies belonging to

O’Connor delivered the funds to the state pursuant to

the UUPA. App.4a. When O’Connor discovered that

state officials were holding his private property under

the UUPA, he filed an administrative claim to recover

his funds. Id. The state subsequently returned the

principal amount to O’Connor, but did not provide him

with the interest generated by his funds while in state

custody. Id.

7

O’Connor subsequently filed a class action against

the State of Michigan and two Michigan officials—

Rachael Eubanks, the State Treasurer, and Terry

Stanton, the State Administrative Manager of the

Unclaimed Property Program (UPP)—in their

personal capacity. App.4a. O’Connor’s complaint

asserted that the state and its officials had

unconstitutionally taken his property, namely, the

interest earned on his funds, without just

compensation or due process. Id.; see also Webb’s

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155

(1980) (finding a taking from the confiscation of

interest). O’Connor sought damages against the state

directly under the Fifth Amendment, and against the

two state officials in their personal capacities under

42 U.S.C. § 1983. Id.

1. The district court decision

The state defendants moved to dismiss O’Connor’s

complaint on the ground that sovereign immunity

barred his claims against the state, and that qualified

immunity shielded the officials in their personal

capacities.2 App.4a–5a. A Magistrate Judge soon

issued a report recommending that the district court

grant the motion. The Magistrate concluded that

sovereign immunity barred O’Connor’s takings and

due process claims against the state and against

Eubanks and Stanton, in their official capacities.

App.39a–41a. She further concluded that the state

officials were immune from O’Connor’s personal

2 Defendants did not challenge O’Connor’s right to sue directly

under the Fifth Amendment. See DeVillier v. Texas, 601 U.S. ---,

--- S. Ct. ---, 2024 WL 1624576 (2024) (observing that the Court

has not yet identified the Fifth Amendment as a source of a cause

of action for damages).

8

capacity claims under “qualified immunity” principles

because the officials’ “actions were mandated by

Michigan statute” and “non-discretionary.” App.47a.

The district court subsequently issued an order

adopting the Magistrate’s report. See App.21a–33a.

The district court judge agreed that “‘the States’

sovereign immunity protects [state defendants] from

takings claims for damages in federal court,’” and that

“no exception applies to Plaintiff’s claims.” App.29a.

The court further agreed with the Magistrate Judge’s

conclusion that the “individual Defendants are

entitled to qualified immunity,” because their actions

were “in accordance with the Act,” id., and “Plaintiff

has not shown that it is clearly established, either

under the Takings Clause or the Due Process Clause,

that he has the right to collect interest on funds

that were non-interest-bearing when abandoned.”

App.30a.

2. The decision below

On appeal, the Sixth Circuit affirmed the district

court’s decision in part and reversed in part. The court

upheld the district court’s conclusion that sovereign

immunity barred O’Connor’s takings claim against

the state. It stated “circuit precedent holds that ‘the

Eleventh Amendment bars takings claims against

states in federal court, as long as a remedy is available

in state court’” and “[a] remedy is available [to

O’Connor] in state court.” App.9a (quoting Skatemore,

Inc. v. Whitmer, 40 F.4th 727, 734 (6th Cir. 2022)).

The Sixth Circuit also affirmed the dismissal of

O’Connor’s unconstitutional takings claim against

state officials in their personal capacity, but on

different grounds than the district court. Pointing to

9

Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468 (6th

Cir. 2023), which itself relies on Vicory, 730 F.2d at

467, the court below ruled that “individual liability for

takings claims is not ‘clearly established,’” and, thus,

the officials are not subject to suit. App.6a (quoting

Sterling Hotels, 71 F.4th at 468). In the Sixth Circuit’s

view, the officials were immune simply because they

are “being sued in their individual capacities for

takings claims.” App.6a (emphasis added).

Thus, the court emphasized it was applying a

“clear” Sixth Circuit rule that “bars individual

liability for takings claims under 42 U.S.C. § 1983,”

App.6a n.2 (emphasis added). The court therefore

affirmed dismissal of O’Connor’s personal capacity

takings claims without engaging in the standard

qualified immunity analysis applied by the district

court. See App.42a (determining whether qualified

immunity shielded the officials from O’Connor’s

personal capacity takings claim based on whether

they violated his “clearly established” constitutional

rights); see also App.29a–30a.

However, with respect to O’Connor’s due process

claim against the officials in their personal capacity,

the Sixth Circuit reversed the district court’s

judgment of dismissal. In so doing, the court below

applied the traditional qualified immunity analysis,

considering whether the defendant state officials

violated a “clearly established” due process right.

App.7a–9a. The court initially determined that

O’Connor had a constitutionally protected property

right in interest income, and that the officials had

failed to give him notice that the state was taking such

interest. App.7a (“When the government takes

10

custody of private property and earns interest on it,

that interest belongs to the owner.”). Concluding that

the notice is a “clearly established” due process right,

and that the officials violated that right, the court held

that the officials were not qualifiedly immune from

O’Connor’s claim that they were liable in their

personal capacity for violating the Due Process

Clause.3

3. Judge Thapar’s concurrence

In a concurring opinion, Judge Thapar took issue

with the court’s treatment of O’Connor’s personal

capacity takings claim. The concurrence explained

that the Sixth Circuit wrongly holds that “there isn’t

[a cause of action] against individual officials” for a

violation of the Takings Clause. App.12a (citing

Vicory, 730 F.2d at 467). Judge Thapar considered this

categorical bar to personal capacity takings suits

against state officers “wrong,” id., because such claims

were common “in the early decades of our republic.”

App.15a. Thus, he deemed the court’s refusal to allow

personal capacity takings claims “inconsistent with

our constitutional history.” Id.

Judge Thapar also objected to the majority

decision, and the circuit precedent on which it relies,

on the ground that it entirely “forecloses” takings

claims in federal court against state defendants.

App.16a. He explained that, under Sixth Circuit

precedent, sovereign immunity bars takings claims

against state officials in their official capacity, while

Defendants plan to file a Petition for Certiorari asking the

Court to review the portion of the Sixth Circuit’s decision

reviving O’Connor’s personal capacity due process claim. See

Eubanks v. O’Connor, Supreme Court Docket No. 23A758,

Application to Extend Time to File a Petition (Feb. 9, 2024).

3

11

cases like Vicory, 730 F.2d at 467, prohibit takings

claims against officials in their individual capacity. Id.

Judge Thapar’s concurring opinion noted that this

framework forces plaintiffs to “litigate takings claims

in state court,” and thereby revives a state litigation

rule that this Court deemed “wrong” in Knick.

App.16a.

Given these concerns, Judge Thapar concluded

that “[a]t the very least ... our circuit should permit

takings claims against officials under section 1983” in

their personal capacity. App.19a. The concurrence

observed that “section 1983 can provide [such] a

remedy” “when a state official ‘subjects’ a person to an

unconstitutional taking.” Id. (citing 42 U.S.C. § 1983);

see also Cong. Globe, 42d Cong., 1st Sess. 85 (1871)

(Rep. Bingham) (citing states’ failure to adequately

compensate takings as a basis for enacting section

1983). O’Connor subsequently petitioned the Sixth

Circuit for rehearing en banc, but the request was

denied.

O’Connor now petitions this Court for a writ of

certiorari.

REASONS FOR GRANTING THE PETITION

This Court has held that the Just Compensation

Clause “places a condition on the exercise” of the

government’s power to take private property, First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304, 314 (1987), and

confers an automatic right to compensation on

affected property owners. Knick, 588 U.S. at 193–94.

42 U.S.C. § 1983 similarly provides property owners

with a federal cause of action for relief from the

deprivation of their right to just compensation. City of

12

Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687, 710 (1999) (recognizing that takings

claimants may sue under 42 U.S.C. § 1983 for

“damages for the unconstitutional denial of []

compensation”).

In the decision below, the Sixth Circuit held that

(1) sovereign immunity bars O’Connor from suing

Michigan for unconstitutionally taking interest

income earned on his private funds, and that

(2) Section 1983 does not allow him to sue state

officials

in

their

personal

capacity

for

unconstitutionally taking his property. App.5a, 9a; see

also App.10a–11a (Thapar, J., concurring).

This decision leaves property owners in the Sixth

Circuit without a meaningful federal compensatory

remedy for an unconstitutional taking of property by

a state. App.10a–11a (Thapar, J., concurring).

Moreover, the decision below conflicts with this

Court’s precedent, with constitutional history, and

magnifies a conflict among the courts on whether a

property owner can sue state officials in their personal

capacity for a violation of the Takings Clause.

I.

THE DECISION BELOW RAISES AN

IMPORTANT QUESTION AS TO WHETHER

SOVEREIGN IMMUNITY PRECLUDES A

SUIT SEEKING JUST COMPENSATION

FOR A TAKING BY A STATE

A. The Legal Landscape

The Eleventh Amendment affirms a principle of

state sovereignty inherent in the constitutional

structure: states are immune from most nonconsensual suits, Hans v. Louisiana, 134 U.S. 1, 21

13

(1890). A state’s immunity from suit applies whether

a suit is filed in state or federal court. Alden v. Maine,

527 U.S. 706, 712, 733, 749 (1999). In Blatchford v.

Native Village of Noatak & Circle Village, 501 U.S.

775 (1991), the Court explained:

[W]e

have

understood

the

Eleventh

Amendment to stand not so much for what it

says, but for the presupposition of our

constitutional structure which it confirms: that

the States entered the federal system with their

sovereignty intact; that the judicial authority in

Article III is limited by this sovereignty; and

that a State will therefore not be subject to suit

in federal court unless it has consented to suit,

either expressly or in the “plan of the

convention.”

Id. at 779 (citations omitted).

It is particularly well-settled that sovereign

immunity shields states from non-consensual suits for

damages. Edelman, 415 U.S. at 666–67 (sovereign

immunity does not allow a suit seeking retroactive

monetary relief). However, there are exceptions. For

instance, sovereign immunity does not apply when it

has been “waived” or states “have consented” to suit

“pursuant to the plan of the [Constitutional]

Convention or to subsequent constitutional Amendments.” Alden, 527 U.S. at 755; PennEast, 141 S. Ct.

at 2258.

At the same time, this Court has affirmed that the

states’ power to take property is conditional upon

payment of just compensation. United States v. Great

Falls Mfg. Co., 112 U.S. 645, 656 (1884). Indeed, since

the beginning of the Republic, it has been understood

14

that the government’s exercise of its right to take

property triggers an implicit agreement to pay for

what it takes. See United States v. Klamath & Moadoc

Tribes, 304 U.S. 119, 123 (1938) (“the taking of

property by the United States in the exertion of its

power of eminent domain implies a promise to pay just

compensation”). The Fifth Amendment reflects this

understanding by imposing an inexorable duty on the

government to pay compensation as the price of

exercising the power to take property. First English,

482 U.S. at 314. These principles—that states owe

compensation when taking property, yet also enjoy

sovereign immunity from suits for damages—exist in

uneasy tension. Vicki C. Jackson, The Supreme Court,

the Eleventh Amendment, and State Sovereign

Immunity, 98 Yale L.J. 1, 116 (1988) (The “clarity of

this textual provision for a monetary remedy is

inconsistent with a premise of sovereign immunity as

a constitutional doctrine[.]”).

Of course, states were not always bound by the

Fifth Amendment’s “just compensation” requirement.

In Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243,

247–51 (1833), the Court held that the Takings Clause

does not apply to the states. Enactment of the

Fourteenth Amendment changed this, however, by

“requir[ing] 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. Most

importantly, the Amendment subjected states to the

Due Process Clause and its command not to “deprive

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

U.S. Const. amend. XIV, § 1. A principal drafter of the

Fourteenth Amendment, John Bingham, contended

that the amendment was necessary to reverse

Barron’s holding that states are exempt from the

15

Takings Clause. Cong. Globe, 39th Cong., 1st Sess.,

1089–90 (1866); see also id. at 1090 (“[T]he people are

[now] without remedy. ... [T]he State Legislatures

may by direct violations of their duty and oaths avoid

the requirements of the Constitution[.]”).

Twenty-five years later, in Chicago, B. & Q.R. Co.,

this Court held that the Due Process Clause

incorporates the Fifth Amendment and indeed binds

states to that amendment’s “self-executing” just

compensation requirement for a taking of property.

166 U.S. at 233–34, 239–41; Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302, 306 n.1 (2002). With this extension of the Takings

Clause to the states, “[t]he principles of sovereign

immunity and just compensation [were set] on a

collision course.” 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, 494 (2006).

The tension between the states’ sovereign

immunity and their obligation to provide just

compensation for a taking has become increasingly

important as states assert a more active role in

regulating private property. App.11a (Thapar, J.,

concurring) (“Sometimes, a plaintiff can find a

municipality to sue for a taking. But other times ...

there aren’t any involved.”). Today, states are often

the source of rules that intrude on property rights to

the point of causing an unconstitutional taking. See,

e.g., Cedar Point Nursery v. Hassid, 594 U.S. 139

(2021) (takings challenge to state agency’s property

access regulation); Brown v. Legal Found. of Wash.,

16

538 U.S. 216 (2003) (takings claim against state rule

requiring confiscation of interest).

Yet, when property owners attempt to assert that

a state owes them compensation, many courts hold

that sovereign immunity absolves them of that

obligation. See, e.g., EEE Minerals, LLC v. North

Dakota, 81 F.4th 809 (8th Cir. 2023) (sovereign

immunity barred a claim after the state legislatively

redefined private mineral interests as public

property); Zito v. N.C. Coastal Res. Comm’n, 8 F.4th

281, 290 (4th Cir. 2021) (sovereign immunity barred a

claim that a state’s refusal to allow construction of one

home caused a taking); Ladd v. Marchbanks, 971 F.3d

574, 576 (6th Cir. 2020) (sovereign immunity barred a

takings claim after state construction activities

“flooded Plaintiffs’ properties three times and caused

significant damage”); Citadel Corp. v. Puerto Rico

Highway Auth., 695 F.2d 31, 33 n.4 (1st Cir. 1982)

(sovereign immunity barred a claim that a property

owner was owed compensation for a decades-long

state “freeze” on development).

The decision below joins this trend. Although there

is little dispute that the state kept interest earned on

O’Connor’s funds while in state custody, it contends

that it is immune from his suit seeking just

compensation for this violation of the Takings Clause.

See App.9a. As the following shows, this decision

cannot be reconciled with history and precedent

related to the conditional nature of the state’s power

to take private property.

17

B. The Decision Below Conflicts with History

and Precedent

1. The decision conflicts with founding-era

understandings

Since the inception of the Anglo-American legal

tradition, it has been understood that a government’s

power to take property is contingent on a duty to

provide just compensation to property owners. See In

The Case of the King’s Prerogative in Salt-peter, 12

Coke R. 13, C2 (1606) (in taking property, the king’s

ministers “are bound to leave the Inheritance of the

Subject in so good Plight as they found it”). In 1625,

the scholar Grotius stated that the “State” may take

private property, “[b]ut it is to be added that when this

is done the State is bound to make good the loss to

those who lose their property.” Philip Nichols, The

Power of Eminent Domain 8, § 7 (1909) (quoting Hugo

Grotius, De Jure Belli et Pacis (On the Law of War and

Peace), lib. ii, e. 20 (1625)). Blackstone similarly

observed that the legislature can compel a person to

submit to a taking of property only “by giving a full

indemnification and equivalent for the injury thereby

sustained.” 1 William Blackstone, Commentaries on

the Laws of England 139 (1753).

Thus, by the time of the American founding, the

sovereign power to take property was tethered to a

commitment to pay compensation to affected property

owners. In 1827, Chancellor Kent described

“compensation” as a “necessary attendant on the due

and constitutional exercise of the power of the

lawgiver to deprive an individual of his property

without his consent.” 2 James Kent, Commentaries on

18

American Law 144 (1827) (emphasis added). An early

state court decision similarly stated that

the right to compensation, is an incident to the

exercise of that power [to take property]: that

the one is so inseparably connected with the

other, that they may be said to exist not as

separate and distinct principles, but as parts of

one and the same principle.

Sinnickson v. Johnson, 17 N.J.L. 129, 145 (1839)

(emphasis added).

Given these views, early courts and commentators

considered the act of taking property to include an

implied promise and agreement on the part of the

government to compensate the owner. Great Falls

Mfg. Co., 112 U.S. at 656 (“The law will imply a

promise to make the required compensation, where

property, to which the government asserts no title, is

taken[.]”); Yearsley v. W.A. Ross Constr. Co., 309 U.S.

18, 21 (1940) (“[I]f the authorized action in this

instance does constitute a taking of property for which

there must be just compensation under the Fifth

Amendment, the Government has impliedly promised

to pay that compensation[.]”). Indeed, the idea that a

taking incorporated a promise to pay was so engrained

that some commentators described a taking simply as

a compelled sale of property to the government.

Thomas M. Cooley, A Treatise on the Constitutional

Limitations 559 (4th ed. 1878) (A taking is “in the

nature of a payment for a compulsory purchase.”);

Henry E. Mills & Augustus L. Abbott, Mills on the

Law of Eminent Domain 6, § 1 (2d ed. 1888) (a taking

is “in the nature of a compulsory purchase of the

property of a citizen for the purpose of applying it to

public use”).

19

Of course, the Fifth Amendment arose from these

pre-existing principles, 2 Joseph Story, Commentaries

on the Constitution of the United States § 1790, at 596

(3d ed. 1858) (The Fifth Amendment “is an affirmance

of a great doctrine, established by the common law for

the protection of private property.”), and the Due

Process Clause of the Fourteenth Amendment applied

that Amendment and the understandings from which

it arose to the states. Chicago, B. & Q.R. Co., 166 U.S.

at 236–37.

The Sixth Circuit’s conclusion that Michigan is

immune from O’Connor’s claim that it owes him

compensation for taking his property cannot be

reconciled with these founding-era understandings

about the conditional nature of the power to take

property. Since a state’s duty to pay just

compensation, and an owner’s claim to such

compensation, is “baked into” the state’s use of its

power to take property, sovereign immunity is

inapplicable to such a claim. Put another way, since

the government “has impliedly promised to pay []

compensation” when it takes property, Yearsley, 309

U.S. at 21, a taking itself waives a state’s immunity

from the resulting claim for just compensation, and/or

functions as consent to that claim. Gunter, 200 U.S. at

284; PennEast, 141 S. Ct. at 2258.

The Sixth Circuit’s contrary conclusion leads to the

strange result that states are constitutionally bound

to pay just compensation, yet can avoid that duty

simply by refusing to pay and then invoking sovereign

immunity to avoid a lawsuit. Cf. Howell v. Miller, 91

F. 129, 136 (6th Cir. 1898) (“A state cannot authorize

its agents to violate a citizen’s right of property, and

then invoke the constitution of the United States to

20

protect those agents against suit instituted by the

owner for the protection of his rights against injury by

such agents.”).

2. The decision below conflicts with this

Court’s precedent

The Sixth Circuit’s decision also cannot be

reconciled with this Court’s precedent. In Chicago, B.

& Q.R. Co., this Court stressed that the “prohibitions

of the [Fourteenth] amendment refer to all the

instrumentalities of the state,—to its legislative,

executive, and judicial authorities,—and therefore

whoever, by virtue of public position under a state

government, deprives another of any right protected

by that amendment against deprivation by the state,

‘violates the constitutional inhibition.’” 166 U.S. at

233–34 (citation omitted; emphasis added). Turning to

the question of a state’s due process-based duty to

abide by the Fifth Amendment, the Court stated “it

must be that the requirement of due process of law in

that [Fourteenth] amendment is applicable to the

direct appropriation by the state to public use, and

without compensation, of the private property of the

citizen.” Id. at 236. The Chicago, B. & Q.R. Co. Court

therefore held that

a judgment of a state court, even if it be

authorized by statute, whereby private

property is taken for the state or under its

direction for public use, without compensation

made or secured to the owner, is, upon principle

and authority, wanting in the due process of

law required by the fourteenth amendment of

the constitution of the United States, and the

affirmance of such judgment by the highest

21

court of the state is a denial by that state of a

right secured to the owner by that instrument.

Id. at 241. Chicago, B. & Q.R. Co. thus recognized

that, upon adoption of the Due Process Clause, the

states’ power to take property became subject to the

same compensatory condition and duty that animates

the Fifth Amendment.

The Sixth Circuit’s conclusion that Michigan is

immune from O’Connor’s takings claim conflicts with

this Court’s conclusion in Chicago, B. & Q.R. Co. that

a state’s refusal to compensate is actionable. See

Chicago, B. & Q.R. Co., 166 U.S. at 236; Vill. of

Norwood v. Baker, 172 U.S. 269, 277 (1898) (“[T]he

due process of law prescribed by that amendment

requires compensation to be made or secured to the

owner when private property is taken by a state, or

under its authority, for public use.”) (emphasis

added); see also Nichols, The Power of Eminent

Domain § 259, at 302 (“[T]he Fourteenth Amendment

throws the protection of the United States courts over

an individual whose property is taken by authority of

a State without compensation.”).

In First English, this Court appeared to agree that

the states’ constitutional duty to provide just

compensation negates sovereign immunity. There, the

United States argued as amicus that “principles of

sovereign immunity” prevented the Court from

interpreting the Just Compensation Clause as “a

remedial provision.” Brief for the United States as

Amicus Curiae Supporting Appellee, No. 85-1199,

1986 WL 727420, at *26–30 (U.S. Nov. 4, 1986). But

the Court rejected this contention. First English, 482

U.S. at 316 n.9. Although this portion of the First

22

English opinion does not fully address the sovereign

immunity/takings issue, it strongly suggests that the

Court did not consider sovereign immunity as a bar to

just compensation claims. Del Monte Dunes, 526 U.S.

at 714 (questioning whether sovereign immunity

“retains its vitality” in the context of compensationseeking takings claims); Lucien v. Johnson, 61 F.3d

573, 575 (7th Cir. 1995) (stating that First English

held that “the Constitution requires a state to waive

its sovereign immunity to the extent necessary to

allow claims to be filed against it for takings of private

property for public use”); 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 § 638, at 1272 (3d ed. 2000) (observing, based on First

English, that the Takings Clause “trumps state (as

well as federal) sovereign immunity”).

Moreover, since First English, the Court has

regularly resolved takings claims against states

without concern for sovereign immunity barriers. See

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992);

Tahoe-Sierra, 535 U.S. 302; see generally, Manning v.

N.M. Energy, Minerals, & Natural Res. Dep’t, 144

P.3d 87, 90 (N.M. 2006) (noting the 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”). Indeed, in Palazzolo v. Rhode Island, 533

U.S. 606 (2001), one amicus curiae brief directly

raised sovereign immunity as a potential bar to the

takings claim, but the Court ignored the argument.

See Amicus Brief of the Board of County

Commissioners of the County of La Plata, Colorado, in

23

Support of Respondents, No. 99-2047, 2001 WL 15620,

at *20–21 (U.S. Jan. 3, 2001).

In short, the Sixth Circuit’s conclusion that

sovereign immunity prevents O’Connor from suing

Michigan for just compensation for a taking is at odds

with precedent and history. Hair v. United States, 350

F.3d 1253, 1257 (Fed. Cir. 2003) (“sovereign immunity

does not protect the government from a Fifth

Amendment Takings claim”); 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.”); Eric

Grant, A Revolutionary View of the Seventh

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[.]”).

One more comment is warranted. In justifying its

decision, the Sixth Circuit observed that sovereign

immunity “bars a claim against the State in federal

court as long as state courts remain open to entertain

the action.” App. 9a. But this Court has made clear

that sovereign immunity is not forum-dependent; it

applies equally in federal and state courts. Franchise

Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 237–39 (2019).

If states can invoke sovereign immunity to close

federal courts to Fifth Amendment takings claims,

they can do so in state courts as well. See Austin v.

Arkansas State Highway Comm’n, 895 S.W.2d 941,

24

944 (Ark. 1995) (sovereign immunity bars a damagesseeking takings claim against a state).

The Court should grant the Petition to hold that a

state’s constitutional duty to provide just

compensation for a taking waives its sovereign

immunity from a claim seeking damages for a taking

by the state.

II.

THE DECISION BELOW PRESENTS

AN IMPORTANT QUESTION, ON WHICH

COURTS CONFLICT, AS TO WHETHER A

PROPERTY OWNER MAY SUE OFFICIALS

IN THEIR PERSONAL CAPACITY FOR

AN UNCONSTITUTIONAL TAKING

In the decision below, the Sixth Circuit also held

that state officials cannot be sued in their personal

capacity under Section 1983 for taking property. This

decision magnifies an entrenched conflict among the

federal courts, and is inconsistent with this Court’s

precedent. Moreover, the decision once again

relegates the Clause to the status of a second-class

constitutional right.

A. The Decision Below Magnifies a Federal

Conflict on the Viability of Personal Capacity

Takings Claims Under 42 U.S.C. § 1983

Fifty years ago, this Court held that, in an action

arising under 42 U.S.C § 1983, “damages against

individual defendants are a permissible remedy in

some circumstances notwithstanding the fact that

they hold public office.” Scheuer v. Rhodes, 416 U.S.

232, 238 (1974). In Kentucky v. Graham, this Court

further held that “to establish personal liability in a

§ 1983 action, it is enough to show that the official,

25

acting under color of state law, caused the deprivation

of a federal right.” 473 U.S. 159, 166 (1985). In Hafer,

the Court confirmed these principles, holding that, in

their personal capacity, state officials are “persons”

within the scope of Section 1983, and are thus subject

to suit in their individual capacity for a constitutional

violation. 502 U.S. at 31.

Unfortunately, in the decades since Hafer, lower

federal courts have failed to reach a consensus on

whether the right to sue officials in their personal

capacity under 42 U.S.C. § 1983 extends to

unconstitutional takings claims. Indeed, courts

remain in conflict on the issue.

1. The Sixth Circuit is in conflict with the

First Circuit

Some courts have explicitly recognized the

viability of Section 1983 personal capacity takings

suits, or have implicitly approved them. See Hinkle

Family Fun Center, 2022 WL 17972138, at *4 n.2

(some federal courts “have indicated (at least

implicitly) that such claims might proceed but have

denied relief”).

The First Circuit is among those courts that have

expressly sanctioned personal capacity takings

claims. See Asociación de Subscripción Conjunta del

Seguro de Responsabilidad Obligatorio v. Flores

Galarza, 484 F.3d 1, 26 (1st Cir. 2007). In Flores

Galarza, property owners alleged, in part, that state

officials were personally liable for taking their

property. While a concurring First Circuit judge

asserted that he was not “convinced that federal

takings claims may ever properly lie against state

officials acting in their individual capacities,” id. at 37

26

(Howard, J., concurring in judgment), the majority

disagreed. Id. at 26.

The Flores Galarza majority held that if the

takings claimant “wishes to seek a personal judgment

against Flores Galarza ... for actions that he took as

the Commonwealth Treasurer to serve the interests of

the Commonwealth, they are entitled to do that.” Id.

Lower courts in the First Circuit thus permit suits

against officials in their individual capacity for Fifth

Amendment takings violations. PDCM Associates, SE

v. Quiñones, No. 15-1615, 2016 WL 8711711, at *4

(D.P.R. Apr. 1, 2016) (accepting “a Section 1983

Takings violation claim against the individually

named Defendants”).

Conversely, other courts, particularly, the Fourth

Circuit, “have [] concluded that individual capacity

defendants are not liable for federal takings claims.”

Bridge Aina Le’a, LLC v. Hawaii Land Use Comm’n,

125 F. Supp. 3d 1051, 1079 (D. Haw. 2015). In

Langdon v. Swain, 29 F. App’x 171, 172 (4th Cir.

2002), the Fourth Circuit dismissed a takings claim

against state officials in their individual capacity after

concluding that “takings actions sound against

governmental entities rather than individual state

employees in their individual capacities.” Federal

district courts in the Fourth Circuit have followed

suit. See Donnelly v. Maryland, No. 20-3654, 2022 WL

4017437, at *2 (D. Md. Sept. 1, 2022) (dismissing an

individual capacity claim because the court concluded

that the sovereignly immune state was the true party

in interest); Reyes v. Dorchester Cnty. of South

Carolina, No. 2:21-cv-00520, 2022 WL 820029, at *10

(D.S.C. 2022) (“[M]onetary relief is unavailable

against persons sued in their individual capacities for

27

a taking.”) (quoting Marina Point Dev. Assocs. v. Cnty.

of San Bernardino, No. 5:19-CV-00964, 2020 WL

2375221, at *3 (C.D. Cal. Feb. 19, 2020) (citing

Langdon, 29 F. App’x at 172)).

The Seventh Circuit is in the same camp as the

Fourth. In Gerlach v. Rokita, 95 F.4th 493 (7th Cir.

2024), the Seventh Circuit considered whether a

plaintiff alleging Indiana’s Unclaimed Property laws

unconstitutionally took her interest income could sue

officials in their personal capacity under 42 U.S.C.

§ 1983. The Gerlach court noted that “even though

Gerlach names individual current and former state

employees, we are ‘obliged to consider whether [this

claim] may really and substantially be against the

state.’” Id. at 500 (quoting Luder v. Endicott, 253 F.3d

1020, 1023 (7th Cir. 2001) (additional citations

omitted)). The Gerlach court then held: “A plaintiff

cannot circumvent the sovereign immunity enjoyed by

states and their employees in their official capacities

simply by pleading a cause of action against those

same employees as individuals.” Id. at 500–01. The

court reasoned that “[t]he money Gerlach seeks is in

the state coffers, not the personal bank accounts of

Indiana’s current and former attorneys general.

Targeting individual state employees for those funds

does not change the fact that the amount she claims

she is owed should have been paid by the state.” Id. at

501. The Seventh Circuit further explained that,

“[b]ecause the State of Indiana benefited from

retaining interest earned on Gerlach’s property, we

conclude that Gerlach’s suit for compensatory relief is

actually against the State of Indiana.” Id. The Gerlach

court thus held that Gerlach was barred from

asserting a personal capacity takings claim under 42

U.S.C. § 1983. Id.

28

The decision below aligns the Sixth Circuit with

the Fourth and Seventh Circuits, in conflict with the

First, on the issue of whether a property owner may

sue state officials in their individual capacity for an

unconstitutional taking of property. While the First

Circuit allows such suits, Flores Galarza, 484 F.3d at

26, the Sixth rejects them under a “clear” rule

“bar[ring] individual liability for takings claims under

42 U.S.C. § 1983.” App.5a–6a & n.2; see also App.11a–

13a (Thapar, J., concurring). The decision below thus

solidifies the Sixth Circuit as a jurisdiction that

forbids personal capacity takings claims under 42

U.S.C. § 1983, in tension with the First Circuit and

other lower federal court decisions. Bridge Aina Le’a,

125 F. Supp. 3d at 1075.

2. The case law in most circuits is in

disagreement on the issue of personal

capacity takings claims

The jurisprudence on the issue in the remainder of

the circuits is confused and contradictory. The Second

Circuit has not directly “addressed whether a Takings

claim may be brought against state officials in their

individual capacities.” Herman v. Town of Cortlandt,

Inc., No. 18-CV-2440, 2023 WL 6795373, at *4

(S.D.N.Y. Oct. 13, 2023). District courts in the Second

Circuit have addressed the issue, but with conflicting

results. Some have allowed personal capacity takings

claims. See Everest Foods Inc. v. Cuomo, 585 F. Supp.

3d 425, 434 (S.D.N.Y. 2022) (adjudicating personal

capacity takings claims). Others reject such claims “as

a matter of law.” Herman, 2023 WL 6795373, at *4;

Katsaros v. Serafino, No. Civ. 300CV288, 2001 WL

789322, at *5 (D. Conn. Feb. 28, 2001) (“Only

governmental entities, and not individuals, can be

29

liable for takings violations.”) (citing Vicory, 730 F.2d

at 467).

For its part, the Third Circuit appears skeptical of

personal capacity suits asserting a Takings Clause

violation under 42 U.S.C. § 1983. See Merritts v.

Richards, 62 F.4th 764, 769 (3d Cir. 2023). In Merritts,

the Third Circuit stated that its rejection of a personal

capacity takings claim on jurisdictional grounds “does

not validate the legal viability of just compensation

claims under § 1983 against individual-capacity

defendants who did not personally acquire any

interests in the property taken.” Id. at 776 n.7. At

least one district court has taken the hint in Merritts

and rejected a personal capacity takings claim as “a

matter of law.” Simonds v. Boyer, No. 2:21-cv-841,

2022 WL 11964613, at *4 (W.D. Pa. Oct. 20, 2022)

(because the plaintiff “only brings claims against

Judge Hanley and Ms. Boyer as ‘individuals’ ... her

Takings claim under the Fifth Amendment fails as a

matter of law”).

The Eighth Circuit’s jurisprudence on the issue is

similar to the Third Circuit’s. In Glow In One Mini

Golf, LLC v. Walz, 37 F.4th 1365, 1373–74 (8th Cir.

2022), the Eighth Circuit frowned on a personal

capacity takings claim, stressing that “it is

traditionally the government itself that is responsible

for compensating an individual who has suffered a

governmental taking.” Id. at 1375. Yet, after

acknowledging that none of this Court’s decisions

“expressly reject appellants’ theory that a government

official can be held personally liable for a government

taking,” id., the Eighth Circuit adjudicated a personal

capacity takings claim on standard qualified

immunity grounds. Id.

30

The case law in the Eleventh Circuit is a bit more

developed, and yet more disjointed. The Eleventh

Circuit itself has left “open the question of whether

the plaintiffs would be able to make out Fifth

Amendment Takings Clause or Due Process Clause

claims against the individual governmental

defendants who allegedly engaged in the illegal

behavior.” Garvie v. City of Ft. Walton Beach, 366 F.3d

1186, 1189 n.2 (11th Cir. 2004). District courts have

accordingly arrived at contrary conclusions on

whether such claims may lie. Compare Spencer v.

Benison, No. 7:16-cv-01334, 2018 WL 4896389, at *7

(N.D. Ala. Oct. 9, 2018) (concluding that “within the

Eleventh Circuit a takings claim may be brought

against a government official in his individual

capacity”), with Reed v. Long, 506 F. Supp. 3d 1322,

1337 n.14 (M.D. Ga. 2020) (“It is doubtful whether a

takings claim, which seeks just compensation for land

taken by the government for a public purpose, can be

brought against an individual defendant in his

individual capacity.”) (citing Langdon, 29 F. App’x at

172).

In the Ninth Circuit, federal district courts

consistently hold that litigants cannot sue officials in

their personal capacity for a violation of the Takings

Clause. In Bridge Aina Le’a, 125 F. Supp. 3d at 1078,

a district court ruled:

The very nature of a taking is that a public

entity is taking private property for a public

purpose, and must provide just compensation

in return. This concept is inconsistent with the

notion that someone acting in an individual

capacity has taken property or could be

personally liable for a taking.

31

Holding “that monetary relief is not available against

persons sued in their individual capacities for

takings,” the Bridge Aina court therefore dismissed a

personal capacity takings claim. Id. at 1080; see also

Marina Point Dev. Assocs., 2020 WL 2375221, at *3

(“The Court agrees that monetary relief is unavailable

against persons sued in their individual capacities for

a taking.”) (citing Langdon, 29 F. App’x at 172; Vicory,

730 F.2d at 467).

The decision below sides with federal court

decisions that reject personal capacity takings claims

as “a matter of law,” in tension with other federal

decisions that allow such claims to proceed. The

decision below therefore exacerbates a deep, decadeslong federal court conflict on the issue, one that

warrants this Court’s intervention.

B. The Sixth Circuit’s Decision Is Inconsistent

with This Court’s Precedent

The Sixth Circuit’s decision to bar personal

capacity Section 1983 claims in the takings context

also cannot be reconciled with this Court’s precedent.

Of particular relevance is Hafer. There, this Court

“address[ed] the question whether state officers may

be held personally liable for damages under § 1983

based upon actions taken in their official capacities.”

Hafer, 502 U.S. at 24.

The defendant in Hafer, an official of the

commonwealth of Pennsylvania, asserted “that she

may not be held personally liable under § 1983 for

discharging respondents because she ‘act[ed]’ in her

official capacity as auditor general of Pennsylvania.”

Id. at 26. This Court rejected the claim. It first

reaffirmed that “officers sued in their personal

32

capacity come to court as individuals. A government

official in the role of personal-capacity defendant thus

fits comfortably within the statutory term ‘person’” in

42 U.S.C. § 1983. Id. at 27 (citing Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 n.10 (1989)). The Hafer

Court then refuted the argument that sovereign

immunity barred the personal capacity claims. The

Court observed that “damages awards against

individual defendants in federal courts ‘are a

permissible

remedy

in

some

circumstances

notwithstanding the fact that they hold public office.’”

Id. at 30 (quoting Scheuer, 416 U.S. at 238).

Thus, Hafer concluded that “the Eleventh

Amendment does not erect a barrier against suits to

impose ‘individual and personal liability’ on state

officials under § 1983.” Id. at 30–31. It then held “that

state officials, sued in their individual capacities, are

“persons” within the meaning of Section 1983. The

Eleventh Amendment does not bar such suits, nor are

state officers absolutely immune from personal

liability under Section 1983 solely by virtue of the

“official” nature of their acts. Id. at 31; see also Lewis

v. Clarke, 581 U.S. 155, 166 (2017) (“Nor have we ever

held that a civil rights suit under 42 U.S.C. § 1983

against a state officer in his individual capacity

implicates the Eleventh Amendment.”).

Nothing in Hafer or related precedent involving 42

U.S.C. § 1983 holds that the availability of a personal

capacity suit against state officials depends on the

nature of the underlying constitutional claim. Del

Monte Dunes, 526 U.S. at 711 (“we have declined ... to

classify § 1983 actions based on the nature of the

underlying right”); see also Tindal v. Wesley, 167 U.S

204, 221 (1897) (approving a takings claim against

33

state officials in their personal capacity). Yet, in the

decision below, the Sixth Circuit held that the

recognized right to sue officials in their personal

capacity does not exist at all when the suit asserts an

unconstitutional taking. App.6a n.2 (noting that

Circuit precedent bars “individual liability for takings

claims under 42 U.S.C. § 1983”). The Sixth Circuit’s

rationale is also contrary to this Court’s precedent.

The circuit rests its rejection of personal capacity

takings suits on the belief that an unconstitutional

taking is a “wrong committed by a government body.”

Vicory, 730 F.2d at 467. It reasons that a “[p]laintiff

may not maintain a constitutional [takings] cause of

action against these defendants who neither have nor

claim the eminent domain power, nor any power

similar to it.” Id.

Yet, this Court has made clear that

unconstitutional takings can arise from routine

exercises of the police power, as well as from the power

of eminent domain. A regulatory decision that

purports to advance environmental, economic, safety,

or other public goals, and which has nothing to do with

eminent domain, can cause a taking. Cedar Point, 594

U.S. at 148–49 (listing a multitude of regulatory

actions that can result in a taking). Since state

officials can take property even when not clothed with

eminent domain authority, the lack of such authority

does not justify barring personal capacity takings

claims.

In short, this Court has “not before treated a

lawsuit against an individual employee as one against

a state instrumentality,” Lewis, 581 U.S. at 166, and

nothing in this Court’s precedent justifies an

exception for personal capacity claims arising under

34

the Takings Clause. That governments typically pay

“just compensation” when a court finds a taking is

irrelevant. “The critical inquiry is who may be legally

bound by the court’s adverse judgment, not who will

ultimately pick up the tab.” Id. at 165. This Court has

made clear that state officials may be legally bound by

a judgment against them in their personal capacity

under 42 U.S.C. § 1983. Hafer, 502 U.S. at 30–31; see

Alden, 527 U.S. at 757. The decision below flouts this

precedent in concluding that state officials cannot be

sued in their personal capacity when the plaintiff

asserts a violation of the Takings Clause.

C. The Decision Below Is Inconsistent with

Constitutional History

As Judge Thapar’s concurring opinion in the

decision below emphasizes, the Sixth Circuit’s

rejection of personal capacity takings claims against

state officials is also “inconsistent with our

constitutional history.” App.15a (Thapar, J.,

concurring). This is because “[u]ntil the 1870s, the

typical recourse of a property owner who had suffered

an uncompensated taking was to bring a common law

trespass action against the responsible corporation or

government official.” Knick, 588 U.S. at 199 (emphasis

added). The defendant officials in early takings cases

“couldn’t raise statutory authorization as a defense” to

an unconstitutional taking. “If a state took property

without compensation, the relevant officials were on

the hook for damages.” App.14a–15a (Thapar, J.,

concurring) (emphasis added).

In short, “in the early decades of our republic,

lawsuits against officials were a viable remedy for

takings.” App 15a (Thapar, J., concurring.) Thus, in

concluding that people like Dennis O’Connor cannot

35

personally sue state officials for unconstitutionally

taking their property under color of state law, the

decision below is contrary to the American legal

tradition.

Ultimately, in refusing to allow personal capacity

suits under 42 U.S.C. § 1983 when a property owner

raises a Takings Clause claim, the Sixth Circuit’s

decision makes the Fifth Amendment into an inferior

constitutional right relative to other constitutional

guarantees. After all, courts routinely allow property

owners to raise personal capacity claims under 42

U.S.C. § 1983 which rest on the Fourteenth

Amendment’s Due Process Clause. See, e.g., Romano

v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (holding

that one suing state officials in their personal capacity

for a deprivation of property “need to allege nothing

more” than that “defendants deprived [plaintiff] of a

protected property interest in violation of due process”

under “color of state law”); Wilson v. Civil Town of

Clayton, 839 F.2d 375, 382 (7th Cir. 1988) (reversing

the dismissal of due process claims against Town

officials). Indeed, in the instant matter, the court

below allowed a due process claim to proceed against

the defendant officials in their personal capacity, but

not a takings claim. App.6a–9a. Closing the

courthouse door to 42 U.S.C. § 1983 claims when they

are based on the Takings Clause “relegates the

Takings Clause ‘to the status of a poor relation’ among

the provisions of the Bill of Rights.” Knick, 588 U.S. at

189 (quoting Dolan, 512 U.S. at 392).

Congress enacted 42 U.S.C. § 1983 “to enforce

provisions of the Fourteenth Amendment against

those who carry a badge of authority of a State and

represent it in some capacity.” Scheuer, 416 U.S. at

36

243 (quoting Monroe v. Pape, 365 U.S. 167, 171–72

(1961)). People asserting a violation of the Takings

Clause should not be left out of this enterprise. The

Court should grant the Petition in part to hold that 42

U.S.C. § 1983 suits seeking to hold state officials

personally accountable for an unconstitutional taking

“should be handled the same as other claims under the

Bill of Rights.” Knick, 588 U.S. at 202.

CONCLUSION

The Court should grant the Petition.

DATED: April 2024.

Respectfully submitted,

PHILLIP L. ELLISON

Outside Legal Counsel PLC

P.O. BOX 107

Hemlock, MI 48626

Telephone: (989) 642-0055

pellison@olcplc.com

*Counsel licensed in

Washington, Oregon,

and Florida

J. DAVID BREEMER

Counsel of Record

CHRISTINA M. MARTIN*

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

CMartin@pacificlegal.org

Counsel for Petitioner