Opposition Brief — Dennis O'Connor, Petitioner v. Rachel Eubanks, et al.

Supreme Court briefJun 28, 2024

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No. 23-1167

In the Supreme Court of the United States

DENNIS O’CONNOR, PETITIONER

RACHAEL EUBANKS, IN HER PERSONAL CAPACITY;

TERRY STANTON, IN HIS PERSONAL CAPACITY;

STATE OF MICHIGAN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Ann M. Sherman

Michigan Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

James A. Ziehmer

Brian McLaughlin

B. Thomas Golden

Assistant Attorneys

General

Revenue and Tax Division

Attorneys for Respondents/Cross-Petitioners

QUESTIONS PRESENTED

1. Where Congress has not abrogated immunity

and the State of Michigan has not consented to suit, is

the State entitled to sovereign immunity for claims

arising under the Fifth Amendment’s Takings

Clause?

2. Where precedent has consistently held that a

personal capacity suit against a state official for a takings claims is not actionable, are state officials who

are sued under the Takings Clause entitled to qualified immunity?

PARTIES TO THE PROCEEDING

Respondents are the State of Michigan, Rachael

Eubanks, the Treasurer of the State of Michigan, and

Terry Stanton, a manager within the Michigan Department of Treasury. Eubanks and Stanton are sued

in their individual capacities. Petitioner is Dennis

O’Connor, an individual who recovered abandoned

property under Michigan’s Unclaimed Property Act.

iii

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ........................................... ii

Table of Authorities .................................................... v

Introduction ................................................................ 1

Statement of the Case ................................................ 2

A. Michigan permits former owners to

recoup the value of their abandoned

property at the time of abandonment. .......... 2

B. O’Connor claims entitlement to interest

on non-interest-bearing abandoned

property. ......................................................... 3

C. The Sixth Circuit reverses in part. ............... 5

Reasons for Denying the Petition............................... 7

The first question presented does not

warrant this Court’s review. ................................ 7

A. The decision below is consistent with this

Court’s longstanding and consistent

precedent that all claims against a State

are barred by sovereign immunity absent

the State’s waiver........................................... 8

B. The circuits are unanimous that States

have sovereign immunity from takingsbased suits. ................................................... 12

C. There is an adequate state court remedy,

of which O’Connor has already availed

himself. ......................................................... 14

II. The second question presented does not

warrant this Court’s review. .............................. 15

A. The Sixth Circuit did not address

whether a personal-capacity Takings

Clause suit is categorically barred, and

Eubanks and Stanton are entitled to

qualified immunity in any event. ................ 16

B. No circuit court has permitted a

personal-capacity takings suit to proceed. .. 17

C. Any split of authority is a shallow one,

and O’Connor already has an adequate

state-law remedy available to vindicate

his rights. ..................................................... 21

Conclusion ................................................................. 22

TABLE OF AUTHORITIES

Cases

Alabama v. Pugh,

438 U.S. 781 (1978) .............................................. 9

Alden v. Maine,

527 U.S. 706 (1999) ........................................ 8, 12

Asociación De Subscripción Conjunta Del Seguro

De Responsabilidad Obligatorio v. Flores

Galarza,

484 F.3d 1 (1st Cir. 2007) ............................. 18, 21

Bay Point Props., Inc., v. Miss. Transp. Comm.,

cert. denied, No. 19-798 (Mar. 20, 2020) ....... 7, 13

Bridge Aina Le’a, LLC v. Haw. Land Use

Comm’n,

125 F. Supp. 3d 1051 (D. Haw. 2015) ................ 19

Canada Hockey, L.L.C., dpa Epic Sports v. Texas

A&M Univ. Athletic Dep’t,

cert. denied, No. 21-1603 (Oct. 3, 2022)............... 7

Chicago Burlington & Quincy Railroad v. City of

Chicago,

166 U.S. 226 (1897) ............................................ 10

Cwik v. Giannoulias,

930 N.E.2d 990 (Ill. 2010) .................................. 17

Dani v. Miller,

374 P.3d 779 (Okla. 2016) .................................. 17

DeVillier v. Texas,

601 U.S. 285 (2024) ........................................ 7, 14

EEE Minerals, L.L.C. v. North Dakota,

cert. denied, No. 22-2159 (Mar. 24, 2024) .... 7, 12,

13, 15

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) ...................................... 10, 11

Gerlach v. Rokita,

No. 1:22-CV-00072-TWP-MG, 2023 WL

2683132 (S.D. Ind. Mar. 29, 2023) ..................... 19

Gunter v. Atlantic Coast Line Railroad,

200 U.S. 273 (1906) ............................................ 10

Hall v. State,

908 N.W.2d 345 (Minn. 2018) ............................ 17

Hans v. Louisiana,

134 U.S. 1 (1890) .............................................. 8, 9

Hinkle Family Fun Ctr., L.L.C. v. Grisham,

No. 22-2028, 2022 WL 17972138 (10th Cir.

Dec. 28, 2022) ..................................................... 20

Jachetta v. United States,

653 F.3d 898 (9th Cir. 2011) .............................. 13

K & K Constr., Inc. v. Dep’t of Nat. Res.,

575 N.W.2d 531 (Mich. 1998) ....................... 14, 22

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ........................................ 9, 11

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) .............................. 11

Langdon v. Swain,

29 F. App’x 171 (4th Cir. 2002) .......................... 20

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

544 U.S. 528 (2005) ............................................ 19

vii

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) .......................................... 11

Lynch v. United States,

292 U.S. 571 (1934) .............................................. 8

Maine Cmty. Health Options v. United States,

590 U.S. 296 (2020) ........................................ 9, 11

O’Connor v. Dep’t of Treasury,

No. 360002, 2023 WL 2335292 (Mich. Ct.

App. Mar. 2, 2023) .............................................. 15

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................ 11

Pavlock v. Holcomb,

35 F.4th 581 (7th Cir. 2022) ............................... 13

PennEast Pipeline v. New Jersey,

594 U.S. 482 (2021) ............................................ 10

Peterman v. State Dep’t of Nat. Res.,

521 N.W.2d 499 (Mich. 1994) ............................. 14

Reich v. Collins,

513 U.S. 106 (1994) ............................................ 13

Robinson v. Ga. Dep’t of Transp.,

966 F.2d 637 (11th Cir. 1992) ............................ 13

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) .............................................. 9

Simon v. Weissman,

301 F. App’x 107 (3d Cir. 2008) ......................... 17

Skatemore, Inc. v. Whitmer,

40 F. 4th 7272 (6th Cir. 2022) .......................... 6, 9

Sterling Hotels, LLC v. McKay,

71 F.4th 463 (6th Cir. 2023) ............................... 17

viii

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

535 U.S. 302 (2002) ............................................ 11

Turnacliff v. Westly,

546 F.3d 1113 (9th Cir. 2008) ............................ 17

United States v. Mitchell,

463 U.S. 206 (1983) .............................................. 9

Vicory v. Walton,

730 F.2d 466 (6th Cir. 1984) .............................. 19

Williams v. Utah Dep’t of Corr.,

928 F.3d 1209 (10th Cir. 2019) .......................... 13

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) ................................. 13

Statutes

42 U.S.C. § 1983 .......................................................... 6

Mich. Comp. Laws § 567.221 et seq ............................ 3

Mich. Comp. Laws § 567.223 ...................................... 2

Mich. Comp. Laws § 567.224 ...................................... 2

Mich. Comp. Laws § 567.242 ...................................... 3

Mich. Comp. Laws § 567.244(1) ................................. 4

Mich. Comp. Laws § 567.245 ...................................... 3

Mich. Comp. Laws § 567.245(3) ................................. 3

Mich. Comp. Laws. § 567.221 et seq ........................... 2

Rules

Fed. R. Civ. P. 12(b)(1) ................................................ 4

Fed. R. Civ. P. 12(b)(6) ................................................ 4

Constitutional Provisions

28 U.S.C. § 1491(a)(1) ................................................. 9

Mich. Const. art. X, § 2 ............................................. 14

INTRODUCTION

Under Michigan law, O’Connor abandoned two

checks totaling less than $350, and many years later

attempted to recoup not only the property but also interest on the non-interest-bearing property. On the

important, substantive question of whether it is

within the province of the States to decide whether to

pay interest on abandoned property that they later return to former owners, Respondents have filed a crosspetition. This petition deals only with issues that are

well-settled and do not warrant this Court’s review:

(1) whether there is a Fifth Amendment takings exception to the general rule that States are entitled to

sovereign immunity absent waiver or abrogation, and

(2) whether government officials who are sued in their

individual capacities under the Takings Clause are

entitled to qualified immunity.

Neither question is certworthy.

For the first, the Sixth Circuit’s opinion does not

conflict with this Court’s precedent, and there is not

even a hint of a circuit split on the issue, with many

United States Courts of Appeals expressly in agreement that there is no takings-clause exception to sovereign immunity. It is no wonder that this Court has

repeatedly, and as recently as last term, denied certiorari on this issue. And here, O’Connor filed an action

to recover his interest in state court.

For the second question, courts have been reluctant to impose individual liability on government officials when the government takes property for the public’s use. Indeed, the only court that appears to have

recognized the viability of a personal-capacity takings

suit did so without analysis and ultimately granted

qualified immunity anyway. The proposed split is as

flimsy as it is shallow. Because O’Connor has an adequate opportunity to seek a remedy via state law and

where no court of appeals has greenlit a personal-capacity takings suit, this case is a poor vehicle to address the qualified immunity question.

The petition should be denied.

STATEMENT OF THE CASE

A. Michigan permits former owners to

recoup the value of their abandoned

property at the time of abandonment.

States generally have the power to define when

abandonment occurs and how abandoned property is

disposed of. Although the contours of state statutory

programs vary, they typically describe circumstances

under which property is “presumed abandoned,” set

forth conditions under which that property is remitted

to the State, and determine whether and when an

abandoning owner can petition the State for the property or its equivalent.

Michigan, like many States, provides for custodial, or revocable, escheatment. Mich. Comp. Laws.

§ 567.221 et seq. Michigan’s scheme is explicit about

the character of unclaimed property at each stage of

the process. Initially, Michigan law declares unclaimed property to be presumed abandoned when

certain conditions are met. Mich. Comp. Laws

§ 567.223. If the conditions raising a presumption of

abandonment are satisfied, the presumed abandoned

property is subject to the custody of the State. Mich.

Comp. Laws § 567.224.

Once the holder reports and remits the presumptively abandoned property, under state law the property is then considered abandoned. But Michigan law

grants the former owner an opportunity to later claim

an interest in that abandoned property by filing a

claim. Mich. Comp. Laws § 567.245. Relevant here, for

property that was not interest-bearing at the time of

surrender, the abandoning owner may receive the

same amount Michigan received from the holder of the

abandoned property, but no more. Mich. Comp. Laws

§ 567.245(3). 1

B. O’Connor claims entitlement to

interest

non-interest-bearing

abandoned property.

On December 3, 2021, O’Connor filed a two-count

putative class action complaint alleging damages arising from the State of Michigan’s handling of its unclaimed property program under the Uniform Unclaimed Property Act (UUPA). Mich. Comp. Laws

§ 567.221 et seq. App. 35a–37a. O’Connor sued the

State of Michigan, as well as Rachael Eubanks, the

Treasurer of the State of Michigan, and Terry Stanton, a manager within the Michigan Department of

Treasury, in their personal and official capacities (collectively, “State Defendants”). Later, on December 10,

2021, O’Connor submitted a claim to the Michigan

1 There is an exception to the rule against interest for non-inter-

est-bearing property. The State will pay “any dividends, interest,

or other increments realized or accruing on the property” if the

property is claimed “at or before liquidation or conversion of the

property into money.” Mich. Comp. Laws § 567.242.

Department of Treasury to recover the same unclaimed property.

Both of O’Connor’s properties were reported to

Treasury as non-interest-bearing on the date they

were reported. Consistent with Michigan law, Treasury maintained an account from which all successful

unclaimed property claims are to be paid. Mich.

Comp. Laws § 567.244(1). After O’Connor filed a

claim, Treasury approved it and paid O’Connor the

amount of the claim, which was the original amount

of the property at the time of abandonment—without

interest, as directed by statute. App. 46a.

The State Defendants filed a motion to dismiss.

Id. Two days later, O’Connor filed his First Amended

Class Action Complaint, alleging that the State Defendants violated the Fifth and Fourteenth Amendments to the U.S. Constitution. App. 36a–37a. O’Connor again named Eubanks and Stanton, in their personal and official capacities, as well as the State of

Michigan. Id.

The State Defendants moved to dismiss under

Rule 12(b)(1) for lack of subject matter jurisdiction

and Rule 12(b)(6) for failure to state a claim. App.

34a–38a. A federal magistrate judge issued a Report

and Recommendation on the motion to dismiss. App.

34a–50a. The magistrate judge concluded that the district court lacked subject matter jurisdiction over the

claims for money damages against the State of Michigan and the official capacity claims against Eubanks

and Stanton. Id. She further concluded that Eubanks

and Stanton were entitled to qualified immunity. Id.

The district court issued a memorandum opinion

and a judgment granting the State Defendants’ motion and dismissing the case. App. 21a–33a. The court

agreed that the Eleventh Amendment barred any

claims against the State of Michigan and Eubanks

and Stanton in their official capacities. App. 29a.

As to qualified immunity, the district court held

that Eubanks and Stanton were entitled to qualified

immunity on the personal-capacity claims because

“there is no dispute that the individual Defendants’

actions related to the UUPP and Plaintiff’s claims

were in accordance with the Act.” Id. The court went

on to note that even if O’Connor could show a constitutional violation, “the individual Defendants are entitled to qualified immunity because Plaintiff has not

shown that it is clearly established, either under the

Taking Clause or the Due Process Clause, that he has

the right to collect interest on funds that were noninterest-bearing when abandoned.” Id.

C. The Sixth Circuit reverses in part.

O’Connor appealed, and on October 6, 2023, the

Sixth Circuit issued its opinion affirming in part and

reversing in part the district court’s grant of qualified

immunity as to the due process claims. App. 1a–20a.

The Sixth Circuit affirmed the dismissal of O’Connor’s takings claims against the State, holding that

the district court’s dismissal of those claims should be

without prejudice. Id. Following circuit precedent, the

court held that “ ‘the Eleventh Amendment bars takings claims against states in federal court, as long as

a remedy is available in state court.’ ” App. 9a (quoting Skatemore, Inc. v. Whitmer, 40 F. 4th 7272, 734

(6th Cir. 2022)). The court cited Michigan decisions

adjudicating takings claims, recognizing that there is

an available remedy through Michigan state courts.

App 9a–10a.

In a brief discussion, the Sixth Circuit also affirmed the grant of qualified immunity to Eubanks

and Stanton for O’Connor’s takings claims. App. 5a–

6a. Bound by circuit precedent, the court held that individual liability for takings claims is not clearly established. App. 5a–6a. But the court held that O’Connor had alleged a plausible due process claim against

Eubanks and Stanton personally, and, therefore, that

they were not entitled to qualified immunity as to that

claim. App 6a–9a. This ruling is the subject of the

cross-petition, filed May 17, 2024.

All parties sought rehearing en banc. App. 51a.

The Sixth Circuit denied the petitions.

O’Connor filed a petition here raising two questions: (1) whether a State’s constitutional obligation to

pay just compensation when taking property waives

its sovereign immunity from a takings claim seeking

damages; and (2) whether a property owner may sue

a state official in their individual capacity under 42

U.S.C. § 1983 for a violation of the Takings Clause, as

the First Circuit holds, or whether such a suit is categorically “barred,” as the Sixth Circuit holds.

Defendants now file this brief in opposition to

O’Connor’s petition.

REASONS FOR DENYING THE PETITION

The first question presented does not

warrant this Court’s review.

The sovereign immunity decision below is consistent with this Court’s longstanding, firm precedent

that, absent a waiver or abrogation, a State retains its

sovereign immunity for all claims against it. And all

the federal courts of appeal that have reviewed the

question have agreed that there is no takings-clause

exception to this bedrock principle.

It is not surprising then that this Court has recently and repeatedly denied petitions contesting a

State’s sovereign immunity for takings claims. See

EEE Minerals, L.L.C. v. North Dakota, cert. denied,

No. 22-2159 (Mar. 24, 2024); Canada Hockey, L.L.C.,

dpa Epic Sports v. Texas A&M Univ. Athletic Dep’t,

cert. denied, No. 21-1603 (Oct. 3, 2022); Bay Point

Props., Inc., v. Miss. Transp. Comm., cert. denied, No.

19-798 (Mar. 20, 2020). And just this past term this

Court deferred the issue of whether there was a cause

of action for money damages under the Fifth Amendment. See DeVillier v. Texas, 601 U.S. 285, 293 (2024)

(finding no need to decide whether the Takings Clause

itself contains a built-in cause of action where state

law offers a vehicle to vindicate rights). This Petition

does not warrant different treatment.

Moreover, this is not a circumstance where O’Connor lacks some other avenue for relief. A similar suit

can be filed in Michigan state courts, and indeed,

O’Connor filed such a suit in the Michigan Court of

Claims.

A. The decision below is consistent with

this Court’s longstanding and consistent

precedent that all claims against a State

are barred by sovereign immunity

absent the State’s waiver.

O’Connor does not present a genuine conflict with

either “founding-era understandings” or this Court’s

precedent. It is well settled that sovereign immunity

is not abrogated on the ground that a case arises under the Constitution, and this Court’s precedent has

not disturbed this principle.

States do not lose their sovereign immunity “on

the mere ground that the case is one arising under the

constitution or laws of the United States.” Hans v.

Louisiana, 134 U.S. 1, 10 (1890). Indeed, this Court

has broadly recognized that “[t]he sovereign’s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced,” including claims that the government has violated “rights conferred upon the citizen by the Constitution.” Lynch v. United States, 292 U.S. 571, 582

(1934). This is because “the Constitution was understood, in light of its history and structure, to preserve

the States’ traditional immunity from private suits.”

Alden v. Maine, 527 U.S. 706, 724 (1999) (emphasis

added).

O’Connor does not dispute these principles. Pet.

12–13. But he posits that founding-era understandings of government takings are at odds with States’

sovereign immunity. Id. at 19. The cases he cites, however, stand for the proposition that the federal government cannot take property without payment. What

O’Connor ignores is that “[b]efore 1855 no general

statute gave the consent of the United States to suit

on claims for money damages; the only recourse available to private claimants was to petition Congress for

relief.” United States v. Mitchell, 463 U.S. 206, 212

(1983). “Congress enabled property owners to obtain

compensation for takings in federal court when it

passed the Tucker Act in 1887, and . . . [the Court]

subsequently joined the state courts in holding that

the compensation remedy is required by the Takings

Clause itself.” Knick v. Twp. of Scott, 588 U.S. 180,

200–01 (2019). See also Maine Cmty. Health Options

v. United States, 590 U.S. 296, 323 n.12 (2020) (citing

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016–17

(1984) (“Although there is no express cause of action

under the Takings Clause, aggrieved owners can sue

through the Tucker Act under our case law.”)). The

Tucker Act, 28 U.S.C. § 1491(a)(1), waives the federal

government’s immunity takings claims that are

rooted in the Fifth Amendment. Knick, 588 U.S. at

200–01.

The Fifth Amendment itself has no bearing on the

States’ sovereign immunity from suit, as this Court

has plainly held that a State does not lose its sovereign immunity simply because a case arises under the

constitution. Hans, 134 U.S. at 10. Nor does the history of the Fourteenth Amendment abrogate immunity here. Alabama v. Pugh, 438 U.S. 781, 782 (1978)

(“There can be no doubt, however, that suit against

the State and its Board of Corrections is barred by the

Eleventh Amendment, unless Alabama has consented

to the filing of such a suit.”). See also Skatemore, Inc.

v. Whitmer, 40 F.4th 727, 736 (6th Cir. 2022) (“There

is no indication that at the time Michigan ratified the

Fourteenth Amendment in 1867 that the Fifth

Amendment’s Takings Clause would apply to the

states. In fact, the Takings Clause was the first right

to be incorporated and that did not occur until 30

years after the Fourteenth Amendment was ratified.”). Thus, history does not support a waiver of the

States’ immunity on this issue.

Nor does this Court’s more modern precedent. Rather, the cases O’Connor cites involve distinct circumstances—not at issue here—demonstrating a waiver

of sovereign immunity. Take, for example, PennEast

Pipeline v. New Jersey, which involved the federal eminent domain power over state-owned property to

which “the States consented in the plan of the Convention[.]” 594 U.S. 482, 501 (2021) (emphasis added); see

also id. at 502 (“Put another way, when the States entered the federal system, they renounced their right

to the ‘highest dominion in the lands comprised within

their limits.’ ”) (citation omitted).

Gunter v. Atlantic Coast Line Railroad is similarly

distinguishable. 200 U.S. 273 (1906). That case involved a State voluntarily joining a lawsuit “and submit[ting] its rights for judicial determination.” Id. at

284. Under that unique circumstance, a State “cannot

escape the result of its own voluntary act by invoking

the prohibitions of the [Eleventh] Amendment.” Id. No

such voluntary waiver of sovereign immunity exists

here.

O’Connor also cites to several takings cases

against municipalities, see First English Evangelical

Lutheran Church of Glendale v. Los Angeles County,

482 U.S. 304, 309–10 (1987); Chicago Burlington &

Quincy Railroad v. City of Chicago, 166 U.S. 226

(1897), and entities that were not held to be arms of

the State, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1007 (1992) (suit against a legislatively created council and no finding that the council

was an arm of the State); Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535

U.S. 302, 306 (2002) (suit against two-state compact,

which the Court had previously held was not an arm

of the state); Palazzolo v. Rhode Island, 533 U.S. 606,

614 (2001) (suit against a legislatively created council

and no finding that the council was an arm of the

State). But municipalities and those entities not found

to be an arm of the state have no entitlement to sovereign immunity, and thus, reliance on these cases is

inapposite here.

True, this Court in First English stated in a footnote that “the Constitution . . . dictates the remedy for

interference with property rights amounting to a taking,” 482 U.S. at 316 n.9. But this Court in Knick

pointed to that footnote as reaffirming that just compensation is a constitutionally required remedy, 588

U.S. at 193, not that the Fifth Amendment abrogated

sovereign immunity. Knick addressed only a claim

against a municipality—a township in Pennsylvania.

588 U.S. at 181. See also Ladd v. Marchbanks, 971

F.3d 574, 579 (6th Cir. 2020) (“Knick says nothing

about sovereign immunity” because “the defendant in

Knick was a municipality, so it had no sovereign immunity to assert.”). To suggest otherwise would ignore

that Knick pointed to the Tucker Act as the vehicle for

achieving just compensation against the federal government. Knick, 588 U.S. at 200–01. See also Me.

Cmty. Health Options, 590 U.S. at 323 n.12.

These distinctions matter, because sovereign immunity “does not extend to suits prosecuted against a

municipal corporation or other governmental entity

which is not an arm of the State.” Alden, 527 U.S. at

756. Accordingly, O’Connor is wrong when he asserts

that these cases stand for the proposition that this

Court routinely ignored sovereign immunity in favor

of allowing takings claims against the State. Pet. 22.

B. The circuits are unanimous that States

have sovereign immunity from takingsbased suits.

Circuit decisions are of no greater help to O’Connor. In fact, he implicitly acknowledges that the decision below does not conflict with the decision of any

other court of appeals. Pet. 16. And rightly so, for even

a cursory review of decisions across the country shows

that the many circuits to have considered the issue

agree that States enjoy sovereign immunity for takings claims.

The Eighth Circuit in EEE Minerals, LLC v.

North Dakota, 81 F.4th 809, 815–16 (8th Cir. 2023),

for example, rejected the argument that “takings

claims must be allowed to proceed despite state sovereign immunity.” The court emphasized that while it

“has not directly addressed the interplay between the

Fifth Amendment and the Eleventh Amendment,” it

has addressed an analogous situation involving the

Fourteenth Amendment’s self-executing “right to a

remedy for taxes levied in violation of federal law,”

concluding that “even though the Fourteenth Amendment provides a right to a remedy for taxes levied in

violation of federal law, ‘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 816 (quoting Reich v. Collins, 513 U.S. 106, 109–110 (1994)).

“Instead, state courts were required to entertain suits

against a State to recover taxes unlawfully exacted.”

Id.

Other circuits have similarly affirmed the States’

sovereign immunity from suit for takings claims. E.g.,

Zito v. N.C. Coastal Res. Comm’n, 8 F.4th 281, 287

(4th Cir. 2021) (“[E]very circuit to address Knick’s effect on sovereign immunity has concluded that Knick

did not abrogate State sovereign immunity in federal

court.”); Bay Point Props., Inc. v. Miss. Transp.

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

that “nothing in Knick” “overturns prior sovereign immunity law in cases arising under the Takings

Clause”); Pavlock v. Holcomb, 35 F.4th 581, 589 (7th

Cir. 2022) (“But unlike Knick, which involved a suit

against a town, the Owners’ suit is against a state,

and states enjoy sovereign immunity.”); Jachetta v.

United States, 653 F.3d 898, 909–10 (9th Cir. 2011)

(holding that the Eleventh Amendment bars claims

brought against the state in federal court); Williams

v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir.

2019) (same); Robinson v. Ga. Dep’t of Transp., 966

F.2d 637, 638, 640–41 (11th Cir. 1992) (same).

Given the unanimity of the courts of appeals and

the correctness of their holdings, this Court should

deny the petition.

C. There is an adequate state court remedy,

of which O’Connor has already availed

himself.

This Court’s recent opinion in DeVillier illustrates

that this Court defers to the state-law remedy for asserting a takings claim, although it did not address

sovereign immunity because Texas consented to suit

in federal court after removal. 601 U.S. at 290, 293.

Deferring to an existing state-law remedy respects the

history of the Takings Clause and permits each

State’s highest court to define the contours of the

State’s own property laws.

And in Michigan, the law is clear: the State provides a cause of action for money damages against the

State under the Fifth Amendment Takings Clause

and under the Michigan Constitution, both as a takings action and as an inverse condemnation action.

See, e.g., K & K Constr., Inc. v. Dep’t of Nat. Res., 575

N.W.2d 531, 534–35 (Mich. 1998) (citing both the

Fifth Amendment and Michigan’s constitutional takings provision, Mich. Const. art. X, § 2, in an action

against a state agency); Peterman v. State Dep’t of

Nat. Res., 521 N.W.2d 499, 505 (Mich. 1994) (recognizing an inverse condemnation action under state law in

action against a state agency).

Thus, in light of DeVillier, O’Connor is hard

pressed to complain that he is left without a meaningful remedy from the State absent a waiver of its sovereign immunity. Pet. 12. In fact, he actually asserted

an inverse condemnation in the Michigan Court of

Claims2 before filing his suit in this matter. O’Connor’s focus on sovereign immunity seems to sidestep

DeVillier and the state-court remedy that was both

available and actually utilized by him.

Since the “Eleventh Amendment bars a claim

against the State in federal court as long as state

courts remain open to entertain the action,” EEE Minerals, 81 F.4th at 816, and Michigan courts remain

open to takings and inverse condemnation claims, review is not warranted here.

II. The second question presented does not

warrant this Court’s review.

Contrary to the second question presented in the

petition, the Sixth Circuit did not analyze, let alone

resolve, the issue whether “a personal capacity suit is

categorically ‘barred.’ ” Pet. i. Rather, the court found

only that such claims are not clearly established. App.

5a–6a. O’Connor contests the Sixth Circuit’s qualified

immunity holding but does not seek certiorari on it,

making this a singularly inappropriate case to address either question.

In any event, Respondents are entitled to qualified immunity. As described in Respondents’ cross-petition, two circuits, three state supreme courts, and

2 O’Connor v. Dep’t of Treasury, No. 360002, 2023 WL 2335292,

at *1 (Mich. Ct. App. Mar. 2, 2023) (“Among other claims, plaintiff alleged that she had the right to recover interest earned on

her asset while held by the state.”). O’Connor was a plaintiff in

the Michigan Court of Claims, but he declined to participate in

the appeal to the Michigan Court of Appeals. Id. at *1 n.1 (“Plaintiffs Dennis O’Connor and Andrew Nagy are not parties to this

appeal.”).

several other state appellate and federal district

courts have rejected takings claims based on States’

refusal to return interest on abandoned property. See

Cross-Pet. 15–20. The law was not clearly established

that there is a compensable taking under those circumstances.

The fact of the matter is that, whether based on

qualified immunity or O’Connor’s underlying view of

the viability of personal-capacity takings suits, no circuit court has permitted a personal-capacity takings

suit to go forward. There is simply nothing for this

Court to resolve.

Even if there is a conflict on the question that Petitioner would present to this Court—are personal-capacity takings suits viable?—the split is a shallow

one, and O’Connor had a ready state-law cause of action to vindicate claims under the takings clause.

A. The Sixth Circuit did not address

whether a personal-capacity Takings

Clause suit is categorically barred, and

Eubanks and Stanton are entitled to

qualified immunity in any event.

O’Connor’s characterization of the Sixth Circuit’s

holding is incorrect and is fatal to any suggestion that

this case presents a vehicle to address the question he

wants answered. O’Connor leads off the discussion of

the second proposed question by stating that, “the

Sixth Circuit also held that state officials cannot be

sued in their personal capacity under Section 1983 for

taking property.” Pet. 24. Not so. Instead, the court

looked to its recent circuit precedent, which “held that

that individual liability for takings claims is not

‘clearly established.’ ” App. 5a–6a (citing Sterling Hotels, LLC v. McKay, 71 F.4th 463, 468 (6th Cir. 2023)).

Therefore, without further analysis, the court below

found itself bound by that precedent and ruled that

Eubanks and Stanton were entitled to qualified immunity. In short, the question presented does not reflect a question resolved by the Sixth Circuit.

Even under Petitioner’s qualified-immunity approach, the law is not clearly established. As explained at length in the cross-petition, several circuits, state courts of last resort, and others have rejected takings claims based on a State’s decision not

to grant abandoning owners interest on their abandoned property. See, e.g., Turnacliff v. Westly, 546

F.3d 1113, 1119 (9th Cir. 2008); Simon v. Weissman,

301 F. App’x 107, 114 (3d Cir. 2008); Hall v. State, 908

N.W.2d 345, 353–55 (Minn. 2018); Dani v. Miller, 374

P.3d 779, 794 (Okla. 2016); Cwik v. Giannoulias, 930

N.E.2d 990, 995–96 (Ill. 2010). See also generally

Cross-Pet. 15–20. This authority shows that an entitlement to interest on abandoned property is not

clearly established.

B. No circuit court has permitted a

personal-capacity

takings

suit

proceed.

Several circuits have addressed whether personal-capacity suits are viable and either outright rejected takings claims against governmental officials in

their individual capacities or resolved the issue by

granting qualified immunity. While these two pathways may differ, they nevertheless lead to the same

result—dismissal. Whatever the focus of analysis,

there is no resolvable conflict warranting this Court’s

review.

O’Connor relies on Asociación De Subscripción

Conjunta Del Seguro De Responsabilidad Obligatorio

v. Flores Galarza, 484 F.3d 1 (1st Cir. 2007). This is

curious authority to put front and center, since the

First Circuit actually granted qualified immunity to

the personal-capacity defendant, finding that the relevant law was either not clearly established or that a

reasonable officer would not have believed that the actions would have violated the plaintiff’s rights. Id. at

36–37.

Before issuing this holding, the First Circuit did

find, tepidly, that a personal-capacity takings suit is

possible. Id. at 25–26. But one would be hard pressed

to assert that the First Circuit “expressly sanctioned

personal capacity takings claims.” Pet. 25. Instead,

the court was “troubled by the notion that the personal-capacity claim . . . is really a subterfuge for an

official-capacity suit that seeks payment from the

Commonwealth Treasury.” 484 F.3d at 25. And the

court chided the plaintiff for “the unusual nature of

this personal capacity suit,” stating, “If the [plaintiff]

wishes to seek a personal judgment against Flores

Galarza in a ruinous and probably uncollectible

amount for actions that he took as the Commonwealth

Treasurer to serve the interests of the Commonwealth, they are entitled to do that.” Id. at 25. 3

3 The court also explicitly acknowledged that “[t]here is a plausi-

ble view of this case that the demand for damages from Flores

Galarza is, in essence, a demand for the recovery of money from

the Commonwealth.” 484 F.3d at 25. If damages were paid out of

It is difficult to imagine how a governmental official could be personally liable for a governmental taking. By its nature, a taking “presupposes that the government has acted in pursuit of a valid public purpose.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543

(2005). For that reason, “the taking is not by a private

person for private purposes, and the property does not

belong to a private person who must accordingly pay

just compensation out of private funds.” Bridge Aina

Le’a, LLC v. Haw. Land Use Comm’n, 125 F. Supp. 3d

1051, 1079–80 (D. Haw. 2015) (“[M]onetary relief is

not available against persons sued in their individual

capacities for takings.”), aff’d, 950 F.3d 610 (9th Cir.

2020).

Recently, in Gerlach v. Rokita, a district court in

the Seventh Circuit was faced with substantially similar arguments as in this case, namely, that the State

of Indiana, the State Attorney General, and the State

Treasurer violated the Fifth and Fourteenth Amendments “ ‘by taking earnings on unclaimed property

while in state custody and failing to compensate owners for those earnings.’ ” No. 1:22-CV-00072-TWPMG, 2023 WL 2683132, at *9 (S.D. Ind. Mar. 29,

2023). The district court found that the takings claims

against the state officials were improper for two reasons. First, the district court held that “[a]n individual

cannot be held liable for a violation of the Takings

Clause.” Id. (citing Vicory v. Walton, 730 F.2d 466, 467

(6th Cir. 1984)). Second, “because any taking was

done for the benefit of the State, any judgment for just

compensation would be paid out by the State

the state treasury rather than the individual’s pockets, a different result may be reached.

treasury[,]” and therefore, “the individual capacity

claims are in reality claims against the State barred

by the Eleventh Amendment regardless of how it is

pled.” Id. at *10.

The Tenth Circuit similarly stated that it was not

“aware of any circuit court that has explicitly held

that a takings action can be brought against a state

official in an individual capacity.” Hinkle Family Fun

Ctr., L.L.C. v. Grisham, No. 22-2028, 2022 WL

17972138, at *4 n.2 (10th Cir. Dec. 28, 2022). Although it followed what it “believe[d] to be an easier

path resolving the issue” by granting qualified immunity, the court acknowledged that the district

court’s rejection of takings claims brought against

government officials in their personal capacity had

substantial support. Id.

And in an earlier decision, the Fourth Circuit explained that “takings actions sound against governmental entities rather than individual state employees in their individual capacities[.]” Langdon v.

Swain, 29 F. App’x 171, 172 (4th Cir. 2002). The consistent theme throughout these decisions is a recognition that it is the government, rather than the individual employee, that has taken the property and received the benefit.

The bottom line: courts have been loath to impose

individual liability on government officials for a government’s act of taking of property for the public’s use.

Regardless of the answer to whether such claims are

viable under § 1983, the Sixth Circuit granted qualified immunity to Stanton and Eubanks rather than

outright rejecting the viability of such claims.

C. Any split of authority is a shallow one,

and O’Connor already has an adequate

state-law remedy available to vindicate

his rights.

Even if the petition properly presented a split of

authority concerning the viability of a personal-capacity takings suit, the split is shallow.

O’Connor’s lodestar for his proposed circuit split

is Flores Galarza, from the First Circuit. But again,

Flores Galarza ultimately dismissed the claim on

qualified immunity grounds. 484 F.3d at 36–37. And

rather than clearly holding that a personal-capacity

takings claim is viable, Flores Galarza seems more to

assume, begrudgingly and without direct analysis,

that it is. Indeed, the court’s discussion of personalcapacity suits focused on whether the complaint actually alleged an official-capacity or personal-capacity

suit. Id. at 25–26. O’Connor’s proffered circuit split is

not only shallow in that it offers one court in disagreement with the others, but also even that court’s “holding” is devoid of analysis on the central question of

whether a personal-capacity takings suit is viable.

What’s more, a decision by this Court would have

little effect on O’Connor and others similarly situated,

who can bring state-law claims. This case concerns

state property law and an alleged entitlement to

money from the State’s coffer. O’Connor had the ability to bring his claims in state court (which he has

done, in a separate suit). In Michigan, the law is clear:

the State provides a cause of action for money damages against the State under the Fifth Amendment

Takings Clause and under the Michigan Constitution,

both as a takings action and as an inverse

condemnation action. See K & K Constr., Inc., 575

N.W.2d at 534–35.

Even in the face of Michigan’s generous state law

regarding abandoned property, the availability of a

state-court cause of action, and the potential damages

remedy from Michigan’s treasury, O’Connor wishes to

hail Eubanks and Stanton into federal court—despite

the Eleventh Amendment, qualified immunity, and

the nature of takings actions that foreclose personalcapacity suits.

CONCLUSION

O’Connor’s petition for a writ of certiorari should

be denied.

Respectfully submitted,