Petition for Writ of Certiorari — Tina Gerlach, Petitioner v. Todd Rokita, Attorney General of Indiana, et al.

No. ___________

In The

Supreme Court of the United States

____________________

TINA GERLACH,

Petitioner,

v.

TODD ROKITA, in his official capacity

as Indiana Attorney General and his individual

capacity; DANIEL ELLIOTT, in his official

capacity as Indiana Treasurer; CURTIS HILL,

in his individual capacity; and AARON

NEGANGARD, in his individual capacity,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

MATTHEW HEFFNER

MATTHEW HURST

Heffner Hurst

30 North La Salle Street

Suite 1210

Chicago, IL 60602

Telephone: (312) 346-3466

J. DAVID BREEMER

Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

(Additional counsel for Petitioner listed on inside cover)

CHARLES R. WATKINS

Guin, Stokes & Evans, LLC

805 Lake Street, #226

Oak Park, IL 60301

Telephone: (312) 878-8391

GARETT BLANCHFIELD

ROBERTA YARD

Reinhardt Wendorf & Blanchfield

80 So. 8th Street, Suite 900

Minneapolis, MN 55402

Telephone: (651) 287-2100

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 state

officials 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 barred, as the Seventh and Sixth

Circuits hold?

ii

STATEMENT OF RELATED PROCEEDINGS



Gerlach v. Rokita, 95 F.4th 493 (7th Cir. Mar. 6,

2024)



Gerlach v. Rokita, No. 1:22-cv-00072, 2023 WL

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

iii

TABLE OF CONTENTS

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

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

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

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 FACTS .......................................... 5

A. The Statutory Scheme ................................ 5

B. The Taking of Gerlach’s Property .............. 7

C. Legal Proceedings ....................................... 8

REASONS FOR GRANTING THE PETITION ....... 10

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

B. The Decision Below Conflicts

with History and Precedent ..................... 16

1. The decision conflicts with

founding-era understandings.............. 16

iv

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................. 25

A. The Decision Below Magnifies a

Federal Conflict on the Viability

of Personal Capacity Takings

Claims Under 42 U.S.C. § 1983 ............... 26

1. The Seventh Circuit is in conflict

with the First Circuit .......................... 26

2. The case law in most circuits is

in disagreement on the issue of

personal capacity takings claims ........ 29

B. The Seventh Circuit’s Decision

Is Inconsistent with This

Court’s Precedent...................................... 32

CONCLUSION.......................................................... 35

Appendix

Opinion, U.S. Court of Appeals for the

Seventh Circuit, filed March 6, 2024 .................. 1a

Entry on Pending Motions,

U.S. District Court, Southern District

of Indiana, filed March 29, 2023 ....................... 14a

Complaint, U.S. District Court,

Southern District of Indiana,

filed January 12, 2022 ....................................... 41a

v

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ................................. 12–14, 34

Asociación de Subscripción Conjunta

del Seguro de Responsabilidad

Obligatorio v. Flores Galarza,

484 F.3d 1 (1st Cir. 2007) .............................. 26–29

Austin v. Arkansas State Highway Comm’n,

895 S.W.2d 941 (Ark. 1995) ................................ 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) .................................. 13

Blatchford v. Native Village of Noatak &

Circle Village, 501 U.S. 775 (1991) ..................... 12

Bridge Aina Le’a, LLC v.

Hawaii Land Use Comm’n,

125 F. Supp. 3d 1051 (D. Haw. 2015) ........... 29, 31

Brown v. Legal Found. of Wash.,

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

Cedar Point Nursery v. Hassid,

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

Cerajeski v. Zoeller,

735 F.3d 577 (7th Cir. 2013) ................................. 7

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

City of Chicago,

166 U.S. 226 (1897) ........................3, 14, 18, 20–21

Citadel Corp. v. Puerto Rico Highway Auth.,

695 F.2d 31 (1st Cir. 1982) .................................. 15

vi

City of Monterey v. Del Monte Dunes

at Monterey, Ltd.,

526 U.S. 687 (1999) ................................. 11, 22, 33

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. 285 (2024) ......................................... 9, 22

Dolan v. City of Tigard,

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

Donnelly v. Maryland, No. 20-3654,

2022 WL 4017437 (D. Md. Sept. 1, 2022) ........... 27

Edelman v. Jordan,

415 U.S. 651 (1974) ......................................... 2, 12

EEE Minerals, LLC v. North Dakota,

81 F.4th 809 (8th Cir. 2023) ................................ 15

Everest Foods Inc. v. Cuomo,

585 F. Supp. 3d 425 (S.D.N.Y. 2022) .................. 29

First English Evangelical Lutheran Church

of Glendale v. Los Angeles County,

482 U.S. 304 (1987) ................................. 10, 13, 22

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ............................................. 24

Garvie v. City of Ft. Walton Beach,

366 F.3d 1186 (11th Cir. 2004) ..................... 30–31

Glow In One Mini Golf, LLC v. Walz,

37 F.4th 1365 (8th Cir. 2022) .............................. 30

Goldberg v. Frerichs,

912 F.3d 1009 (7th Cir. 2019) ............................... 7

vii

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

200 U.S. 273 (1906) ..................................... 2, 4, 19

Hafer v. Melo,

502 U.S. 21 (1991) ........................... 4, 9, 26, 32–34

Hair v. United States,

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

Hans v. Louisiana,

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

Herman v. Town of Cortlandt, Inc.,

No. 18-CV-2440,

2023 WL 6795373 (S.D.N.Y. Oct. 13, 2023)........ 29

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) ............................................... 19

Hinkle Family Fun Center, LLC v.

Grisham, No. 22-2028,

2022 WL 17972138 (10th Cir. Dec. 28, 2022) ... 4–5

Hopkins v. Clemson Agric. College,

221 U.S. 636 (1911) ............................................. 33

Howell v. Miller,

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

In the Case of the King’s Prerogative in

Salt-peter, 12 Coke R. 13 (1606).......................... 16

Indiana Dep’t of Public Welfare v. Payne,

622 N.E.2d 461 (Ind. 1993) ................................. 24

Katsaros v. Serafino,

No. Civ. 300CV288,

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

Kentucky v. Graham,

473 U.S. 159 (1985) ............................................. 26

viii

Knick v. Township of Scott,

588 U.S. 180 (2019) ............................... 3, 5, 10–11

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ............................... 15

Langdon v. Swain,

29 F. App’x 171 (4th Cir. 2002) ......... 27–28, 31–32

Leistiko v. Sec’y of Army,

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

Lewis v. Clarke,

581 U.S. 155 (2017) ....................................... 33–34

Lucas v. S.C. Coastal Council,

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

Lucien v. Johnson,

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

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

Natural Res. Dep’t,

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

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 19

Marina Point Dev. Assocs. v.

Cnty. of San Bernardino,

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

(C.D. Cal. Feb. 19, 2020) ......................... 28, 31–32

Matter of M.W.,

130 N.E.3d 114 (Ind. Ct. App. 2019) ................... 24

Merritts v. Richards,

62 F.4th 764 (3d Cir. 2023) ............................. 4, 30

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .......... 4–5, 11, 15, 28

ix

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ....................................... 22–23

PDCM Associates, SE v. Quiñones,

No. 15-1615,

2016 WL 8711711 (D.P.R. Apr. 1, 2016) ............. 27

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) ............................... 3–4, 13, 19

People of Colo. ex rel. Watrous v.

Dist. Ct. of U.S. for Dist. of Colo.,

207 F.2d 50 (10th Cir. 1953) ............................... 34

Proprietors of Piscataqua Bridge v.

New Hampshire Bridge,

7 N.H. 35 (1834)................................................... 17

Reed v. Long,

506 F. Supp. 3d 1322 (M.D. Ga. 2020) ................ 31

Reyes v. Dorchester Cnty. of South Carolina,

No. 2:21-cv-00520,

2022 WL 820029 (D.S.C. Mar. 18, 2022) ...... 27–28

Scheuer v. Rhodes,

416 U.S. 232 (1974) ....................................... 26, 33

Sheetz v. County of El Dorado,

601 U.S. 267 (2024) ............................................. 21

Simonds v. Boyer,

No. 2:21-cv-841,

2022 WL 11964613 (W.D. Pa. Oct. 20, 2022) ..... 30

Sinnickson v. Johnson,

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

x

Smyth v. Carter,

845 N.E.2d 219 (Ind. Ct. App. 2006),

rev. denied, 860 N.E.2d 588 (Ind. 2006),

cert. denied, 549 U.S. 1181 (2007) ........ 6–7, 24–25

Spencer v. Benison,

No. 7:16-cv-01334,

2018 WL 4896389 (N.D. Ala. Oct. 9, 2018) ......... 31

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ....................................... 14, 22

Tindal v. Wesley,

167 U.S. 204 (1897) ....................................... 33–34

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) ................................... 3, 13, 17

United States v. Klamath & Moadoc Tribes,

304 U.S. 119 (1938) ............................................. 13

Vicory v. Walton,

730 F.2d 466 (6th Cir. 1984) ......................... 29, 32

Vill. of Norwood v. Baker,

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

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. 1998) ................................. 5

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

309 U.S. 18 (1940) ......................................... 17–19

Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281 (4th Cir. 2021) .................................. 15

xi

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

42 U.S.C. § 1983 .......................................................... 2

Ind. Code § 32-34-1.5-4 ............................................... 6

Ind. Code § 32-34-1.5-14 ............................................. 6

Ind. Code § 32-34-1.5-42 ............................................. 6

Ind. Code § 32-34-1.5-44(b) ......................................... 6

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) .................... 23

Berger, Eric, The Collision of the Takings and

State Sovereign Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ..................... 14

1 Blackstone, William, Commentaries

on the Laws of England (1753) ........................... 16

Brief for the United States as Amicus Curiae

Supporting Appellee, First English

Evangelical Church of Glendale v.

Cnty. of Los Angeles, No. 85-1199,

1986 WL 727420 (U.S. Nov. 4, 1986) .................. 22

Cong. Globe, 39th Cong. 1st Sess. (1866)................. 14

xii

Cooley, Thomas M., A Treatise on the

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

Grant, Eric, A Revolutionary View

of the Seventh Amendment and

the Just Compensation Clause,

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

Grant, Julia, Note, A Clash of Constitutional

Covenants: Reconciling State Sovereign

Immunity and Just Compensation,

109 Va. L. Rev. 1143 (2023) ................................ 24

Grotius, Hugo, De Jure Belli et Pacis

(On the Law of War and Peace) (1625) ............... 16

Jackson, Vicki C., The Supreme Court,

the Eleventh Amendment, and

State Sovereign Immunity,

98 Yale L.J. 1 (1988) ............................................ 13

2 Kent, James,

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

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) .......... 16, 21

Seamon, Richard H.,

The Asymmetry of State Sovereign Immunity,

76 Wash. L. Rev. 1067 (2001).............................. 14

2 Story, Joseph,

Commentaries on the Constitution

of the United States (3d ed. 1858) ....................... 18

Struve, Catherine T., Turf Struggles: Land,

Sovereignty, and Sovereign Immunity,

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

xiii

1 Tribe, Laurence H.,

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

Zeigler, Donald H., Rights Require Remedies:

A New Approach to the Enforcement of

Rights in the Federal Courts,

38 Hastings L.J. 665 (1987) ................................ 19

1

PETITION FOR WRIT OF CERTIORARI

Tina Gerlach respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

95 F.4th 493 (7th Cir. 2024), and reprinted at App.1a.

The order of the district court granting Respondents’

motion to dismiss is reported at 2023 WL 2683132

(S.D. Ind. Mar. 29, 2023), and reprinted at App.14a.

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

Seventh Circuit issued its decision on March 6, 2024,

App.1a. This Court granted an extension of time of 29

days to file a Petition for Certiorari, extending the

filing date up to and including July 3, 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[.]

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

This case presents two important and recurring

questions pertaining to whether a property owner

may sue state officials for an unconstitutional taking

of private property. The first question asks whether a

state’s sovereign immunity bars a suit for just

compensation for a state’s unconstitutional taking of

property. The second question asks whether a

property owner may seek damages from the officials

in their personal capacity for an unconstitutional

taking of property under 42 U.S.C. § 1983.

There is tension in the law. 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,

3

under the Just Compensation Clause, the government

has a duty to pay just 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 their

obligation to compensate owners when states take

property

without

providing

contemporaneous

compensation. Community Housing Improvement

Program v. City of New York, 492 F. Supp. 3d 33, 40

(E.D.N.Y. 2020).

In the decision below, the Seventh Circuit resolved

this clash in favor of sovereign immunity, holding that

it prevents Tina Gerlach from suing state officials for

just compensation after they kept interest earned on

Gerlach’s dormant property while in state custody.

This decision creates 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 agrees to pay compensation when it

exercises the power to take property. United States v.

Great Falls Mfg. Co., 112 U.S. 645, 656 (1884) (“The

law will imply a promise to make the required

compensation, where property . . . is taken[.]”). The

act of taking property itself thus negates and waives

any asserted immunity from a property owner’s

subsequent claim for compensation, see, e.g.,

PennEast Pipeline Co. v. New Jersey, 594 U.S. 482,

4

500 (2021); Gunter, 200 U.S. at 284, but the Seventh

Circuit held to the contrary.

The second, related, question asks whether a

property owner may sue state employees in their

personal capacity for unconstitutionally taking

private property under 42 U.S.C. § 1983. This Court

has previously held that 42 U.S.C. § 1983 allows

individuals to sue state officials in their personal

capacity without offending sovereign immunity. Hafer

v. Melo, 502 U.S. 21, 25 (1991). But the Seventh

Circuit held that a personal capacity suit is actually a

suit against a state that triggers sovereign immunity.

App.12a–13a. The Seventh Circuit’s decision thus

bars personal capacity suits that allege a violation of

the Takings Clause.

In so holding, the decision below exacerbates a

deep conflict among the federal courts on whether a

property owner may raise a personal capacity claim

under Section 1983 for a violation of the Takings

Clause. See O’Connor v. Eubanks, 83 F.4th 1018, 1026

(6th Cir. 2023) (Thapar, J., concurring), petition for

writ of certiorari pending, docket no. 23-1167; 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.”);

Hinkle Family Fun Center, LLC v. Grisham, No. 222028, 2022 WL 17972138, at *4 n.2 (10th Cir. Dec. 28,

2022) (“Some circuits and judges have rejected or

expressed doubt about such claims,” while “[o]thers

5

have indicated (at least implicitly) that such claims

might proceed[.]”).

The Seventh Circuit’s de facto rejection of personal

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

inconsistent with this Court’s jurisprudence,

O’Connor, 83 F.4th at 1025 (Thapar, J., concurring),

and with “constitutional history.” Id. at 1026–27

(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 Seventh Circuit, routinely allow

litigants to bring personal capacity suits for the

violation of other constitutional rights. Wilson v. Civil

Town of Clayton, 839 F.2d 375, 382 (7th Cir. 1998).

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 just

compensation or damages for a violation of the

Takings Clause, thereby ensuring that a viable

federal remedy exists for a taking by a state. See

O’Connor, 83 F.4th at 1024 (Thapar, J., concurring)

(observing that sovereign immunity “has closed the

federal courthouse doors on takings claims” by barring

claims against state officers).

STATEMENT OF FACTS

A. The Statutory Scheme

Indiana’s Unclaimed Property Act (Act) authorizes

the state to take custody of property belonging to

private citizens that has lain dormant for a specified

period of time such as unclaimed wages, insurance

proceeds, and uncashed checks held by banks and

6

insurance companies. Ind. Code § 32-34-1.5-4. When

the Indiana Attorney General, acting through the

Indiana Unclaimed Property Division, takes

possession of unclaimed property, it generally

liquidates all tangible property (such as jewelry or

marketable securities), so that retained property is in

the form of cash. App.45a. The funds are then

deposited in a state-controlled, interest-bearing

account. App.2a.

Under the Act, the owners of unclaimed property

may file a claim for their property, with valid claims

paid out of the state accounts holding unclaimed

property funds. Ind. Code §§ 32-34-1.5-14, 32-34-1.542. When dormant assets remain unclaimed, the state

may transfer the funds derived from such assets to

Indiana’s “Abandoned Property Fund.” App.45a. All

unclaimed property deposits in the Fund accrue

interest. Id.; see also Ind. Code § 32-34-1.5-42. When

the money in the state’s Abandoned Property Fund

exceeds $500,000, the state transfers the overage to

Indiana’s general fund. Ind. Code § 32-34-1.5-44(b).

Thus, while individual unclaimed property assets may

be small, the State’s aggregate appropriation of

unclaimed property generates millions of dollars in

revenue. App.46a.

Indeed, traditionally, the state has retained all

interest derived from unclaimed assets for its own use,

even when property owners filed timely claims for

return of their property in state custody. Further, in

Smyth v. Carter, 845 N.E.2d 219, 223–24 (Ind. Ct.

App. 2006), rev. denied, 860 N.E.2d 588 (Ind. 2006),

cert. denied, 549 U.S. 1181 (2007), which remains good

law, an Indiana appellate court rejected a Fifth

Amendment takings challenge to the state’s

7

traditional practice of retaining interest earned on

unclaimed property.

However, in 2013, the Seventh Circuit held that

the Fifth and Fourteenth Amendments require

Indiana to pay interest on certain private unclaimed

funds. Cerajeski v. Zoeller, 735 F.3d 577, 582 (7th Cir.

2013). The Seventh Circuit later expanded Cerajeski

to require the state to pay interest earned on all funds

in its custody. Goldberg v. Frerichs, 912 F.3d 1009,

1012 (7th Cir. 2019). Thus, as the law stands now, in

federal court, property owners can state a valid Fifth

Amendment takings claim based on Indiana’s

retention of interest earned on unclaimed property,

but they cannot do the same in Indiana courts. Smyth,

845 N.E.2d at 223–24.

B. The Taking of Gerlach’s Property

Tina Gerlach currently resides in Kentucky, but

for many years lived in Elkhart, Indiana. She owned

two separate pieces of dormant property, each valued

at more than $100. The state took custody of this

property. App.47a. Gerlach subsequently filed a claim

for one of the assets, valued at $100.93. After

approving her claim, Indiana returned precisely that

amount. Id. The state did not compensate her for

interest earned on the property while it was in state

custody. Gerlach has not yet submitted a claim for the

second piece of property in state custody. The state

will not permit Gerlach to recover interest earned on

her property while in state custody when she submits

a claim to recover it. Id.

8

C. Legal Proceedings

In January 2022, Gerlach sued the current and

former state Attorneys General and the state

Treasurer in federal court, alleging violations of the

Fifth Amendment Takings Clause, as applied to

Indiana through the Fourteenth Amendment.

App.41a–42a. She sought just compensation, as well

as declaratory and injunctive relief, against Indiana

Attorney General Todd Rokita and Indiana Treasurer

Kelly Mitchell in their official capacities. App.43a–

44a. Current Treasurer Daniel Elliott automatically

substituted for previous Treasurer Kelly Mitchell.

App.3a.

Gerlach also sued Rokita and the two Attorneys

General who preceded him in their individual

capacities under 42 U.S.C. § 1983, seeking damages

for an unconstitutional taking. App.43a. Gerlach

seeks relief on her own behalf and as representative

of a class of similarly situated unclaimed property

owners who, collectively, have been deprived of more

than $5 million. App.44a.

The state defendants soon moved for judgment on

the pleadings. Their motion argued that Gerlach’s

unconstitutional takings claims were moot to the

extent they seek prospective relief because, during the

litigation, state officials declared that they would

begin paying accrued interest on all returned

property. App.28a–29a. The district court agreed and

held Gerlach’s prospective relief-seeking takings

claim moot. App.30a. With respect to Gerlach’s claim

for compensation for an unconstitutional taking by

the defendants in their official capacity, the court held

that sovereign immunity barred such claims. App.33a,

37a.

9

Turning to Gerlach’s personal capacity takings

claims, the district court recognized that the Eleventh

Amendment generally “does not block a suit for

damages against a state official in his or her

individual capacity.” App.33a (citing Hafer, 502 U.S.

at 30–31). However, the court concluded that there is

an exception to this general rule for claims arising

under the Takings Clause. The district court

specifically concluded that (1) “[a]n individual cannot

be held liable for a violation of the Takings Clause,”

App.37a, and (2) “any judgment” on a takings claim

“would have to come from the State rather than the

named individuals.” Id. Therefore, the court held that

“regardless of how it is pled,” a Takings Clause claim

seeking damages from state officials in their personal

capacity is actually a claim against the state barred

by sovereign immunity. App.38a.

On appeal, the Seventh Circuit affirmed in a

published decision. App.1a–13a. The court below

initially held that Gerlach’s claim for equitable relief

was moot because, during the appeal, Indiana had

enacted a law authorizing reimbursement of interest

earned on unclaimed property funds. App.5a–6a. The

Seventh Circuit also agreed that “Eleventh

Amendment sovereign immunity [] disposes” of

Gerlach’s unconstitutional taking claim seeking just

compensation from the state defendants in their

official capacity.1 App.7a–8a.

The Seventh Circuit noted an unresolved question as to

whether the Fifth Amendment provides a direct cause of action

for just compensation. App.6a–7a (citing DeVillier v. Texas, 601

U.S. 285, 292 (2024) (declining to answer that question)).

However, this issue was not raised, argued, or passed on in the

1

10

Finally, the Seventh Circuit rejected Gerlach’s

takings claims seeking damages from the defendants

in their individual capacities. The court stated: “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.” App.11a–12a.

The court then observed, “the 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.”

App.12a. Concluding that Gerlach’s personal capacity

takings claim “for compensatory relief is actually

against the State of Indiana,” the court below held it

was barred by sovereign immunity. App.13a. in its

view, the claim was “doubly barred—first because

§ 1983 does not create a cause of action against a state

and second because Indiana enjoys sovereign

immunity under the Eleventh Amendment.” Id.

This Petition follows.

REASONS FOR GRANTING THE PETITION

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

district court proceedings, and was therefore not before the

Seventh Circuit on appeal. In any event, the Seventh Circuit

avoided addressing the issue, choosing to resolve Gerlach’s

official capacity takings claim based on sovereign immunity

grounds alone. App.7a.

11

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 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 Seventh Circuit held

that (1) sovereign immunity bars Gerlach from suing

Indiana for unconstitutionally taking interest income

earned on her private funds, and that (2) Gerlach

cannot sue state officials in their personal capacity for

causing an unconstitutional taking under Section

1983 because such a suit is really against the state,

which is shielded from suits for just compensation by

sovereign immunity.

This decision leaves property owners in the

Seventh Circuit without a meaningful federal court

remedy for an unconstitutional taking of property by

a state. Cf. O’Connor, 83 F.4th at 1024 (Thapar, J.,

concurring) (observing that sovereign immunity “has

closed the federal courthouse doors on takings

claims”). Moreover, the decision below conflicts with

this Court’s precedent and constitutional history,

while magnifying a conflict among federal courts on

whether a property owner can sue state officials in

their personal capacity for a violation of the Takings

Clause.

12

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

(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

13

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, 594

U.S. at 499–500.

At the same time, this Court has emphasized that

the states’ power to take property is conditional upon

payment of just compensation. Great Falls Mfg. Co.,

112 U.S. at 656. Indeed, since the beginning of the

Republic, it has been understood 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

14

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 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

15

compensation for a taking has become increasingly

important as states assert a more active role in

regulating private property. O’Connor, 83 F.4th at

1025 (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., 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, 816 (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 no dispute that state officials kept interest earned

16

on Gerlach’s funds while in state custody, the decision

below holds that the officials are immune from her

suit seeking just compensation for the violation of the

Takings Clause. See App.8a–11a. 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.

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

17

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

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). See also Proprietors of Piscataqua

Bridge v. New Hampshire Bridge, 7 N.H. 35, 66 (1834)

(The power of eminent domain “has always been

understood necessarily to include, as a matter of right,

and as one of the first principles of justice, the further

limitation, that in case his property is taken without

his consent, due compensation must be provided” or

else “[s]uch a power would be essentially tyrannical,

and in contravention of other articles in the Bill of

Rights.”).

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

18

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 ingrained

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”).

Of course, the Fifth Amendment reflects these preexisting 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 Seventh Circuit’s conclusion that Indiana is

immune from Gerlach’s claim that it owes her

compensation for taking her property cannot be

reconciled with 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

19

way, since the government “has impliedly promised to

pay [] compensation” when it takes property, Yearsley,

309 U.S. at 21, the 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, 594 U.S. at

499–500.

The Seventh Circuit’s contrary conclusion leads to

the strange result that states are constitutionally

bound to pay just compensation when directly

condemning property, yet can avoid payment by

evading its duty, forcing a property owner to sue, and

then invoking sovereign immunity to escape

unscathed. 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 protect those

agents against suit instituted by the owner for the

protection of his rights against injury by such

agents.”). As Justice Stevens lamented, “This Court’s

expansive Eleventh Amendment jurisprudence is not

merely misguided as a matter of constitutional law; it

is also an engine of injustice. . . . [T]hroughout the

doctrine’s history, it has clashed with the just

principle that there should be a remedy for every

wrong.” Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 54 (1994) (Stevens, J., concurring) (citing

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803)). “A right without a remedy is not a legal right;

it is merely a hope or a wish.” Donald H. Zeigler,

Rights Require Remedies: A New Approach to the

Enforcement of Rights in the Federal Courts, 38

Hastings L.J. 665, 678 (1987).

20

But the principle of just compensation for a taking

is not a wish. It is a long-established promise and

agreement attached to a state’s use of the power to

take property. The Seventh Circuit’s application of

sovereign immunity to bar Gerlach’s claim for just

compensation for a taking by state officials is

inconsistent with this bedrock principle.

2. The decision below conflicts with this

Court’s precedent

The Seventh 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). 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

21

of such judgment by the highest 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

Court recently suggested as much in Sheetz v. County

of El Dorado, 601 U.S. 267, 276 (2024), noting that

“the [Fourteenth] Amendment constrains the power of

each ‘State’ as an undivided whole.” As such, it makes

no difference whether the taker is the state itself, or a

subdivision thereof.

The Seventh Circuit’s conclusion that Indiana is

immune from Gerlach’s claim that it is liable for a

violation of the Takings Clause conflicts with the

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.”); 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

22

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). The

Court rejected this contention. First English, 482 U.S.

at 316 n.9. Although this portion of the First English

opinion does not “directly confront” the sovereign

immunity/takings issue, DeVillier, 601 U.S. at 291–

92, it strongly suggests that sovereign immunity does

not bar just compensation claims. Del Monte Dunes,

526 U.S. at 714 (questioning whether sovereign

immunity “retains its vitality” in the context of

compensation-seeking 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 § 6-38, 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

23

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

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

at *20–21 (U.S. Jan. 3, 2001).

In short, the lower court’s conclusion that

sovereign immunity prevents Gerlach from suing

Indiana 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[.]”).

Finally, in justifying its decision to immunize state

entities from takings suits in federal court, the

Seventh Circuit observed that takings claims can be

brought against the state in Indiana state courts even

if they cannot be brought in federal court. This is

factually inaccurate and inconsistent with this Court’s

precedent. It is factually inaccurate because Indiana

courts explicitly refuse to acknowledge a takings

24

cause of action arising from unpaid interest accrued

on custodial funds. Smyth, 845 N.E.2d at 223–24. This

decision stands as the law of Indiana and forces

Indiana state trial courts to dismiss any suits

claiming just compensation for the time value of

property held by the state under the unclaimed

property regime. Indiana courts take vertical stare

decisis seriously, with the Indiana Court of Appeals

cautioning trial court judges and magistrates that

failure to apply binding precedent violates the Indiana

Code of Judicial Conduct. Matter of M.W., 130 N.E.3d

114, 116 (Ind. Ct. App. 2019). Even when an Indiana

Court of Appeals decision conflicts with later decisions

of the Seventh Circuit Court of Appeals on the same

issue, Indiana trial courts must follow the state

appellate court decision. Indiana Dep’t of Public

Welfare v. Payne, 622 N.E.2d 461, 468 (Ind. 1993).

Moreover, sovereign immunity is forum-neutral; it

shields the state 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

bar Fifth Amendment takings claims in federal court,

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

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

944 (Ark. 1995) (sovereign immunity bars a damagesseeking takings claim against a state); cf. Julia Grant,

Note, A Clash of Constitutional Covenants:

Reconciling State Sovereign Immunity and Just

Compensation, 109 Va. L. Rev. 1143, 1161–62 (2023)

(finding it “unclear why state courts must be open to

hear these claims, while federal courts can remain

closed. In other words, why are state courts the

default for hearing these federal claims?”). In any

event, as noted above, Indiana courts do not provide

an adequate remedy for Gerlach’s takings claim.

25

Smyth, 845 N.E.2d at 223–24. Therefore, even if there

were some principle in this Court’s precedent allowing

federal courts to apply sovereign immunity to bar a

takings claim as long as state courts remain open to

the claims (there is not), that principle does not apply

here.

The Court should grant the Petition to ensure a

viable remedy exists by holding 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 Seventh Circuit also held

that state officials cannot be sued for damages for a

taking in their personal capacity under Section 1983

because it believes such a suit is really against the

state and the state is protected by sovereign

immunity. App.12a–13a. The court thus bars personal

capacity takings claims under Section 1983. In so

doing, the decision below magnifies a federal conflict

on the issue, 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.

26

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, the Court

further held that “to establish personal liability in a

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

acting under color of state law, caused the deprivation

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

recently, Hafer held 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 includes

unconstitutional takings claims. Indeed, courts

remain in conflict on the issue.

1. The Seventh Circuit is in conflict with the

First Circuit

Some courts explicitly recognize the viability of

Section 1983 personal capacity takings suits. For

example, the First Circuit expressly approves of

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

27

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

(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, disallow federal takings claims against

individual capacity defendants. 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.

28

Mar. 18, 2022) (“[M]onetary relief is unavailable

against persons sued in their individual capacities for

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 Sixth Circuit also rejects personal capacity

takings claims under 42 U.S.C. § 1983. In O’Connor v.

Eubanks, 83 F.4th at 1020 (pet. cert. pending, docket

no. 23-1167), Dennis O’Connor challenged Michigan’s

Uniform Unclaimed Property Act for withholding

interest income when he reclaimed his property from

state custody. The Sixth Circuit affirmed the

dismissal of O’Connor’s unconstitutional takings

claim against state officials in their personal capacity

because that court has adopted a “clear rule” that

“bars individual liability for takings claims under 42

U.S.C. § 1983.” Id. at 1022 n.2. The O’Connor court

thus summarily dismissed the property owner’s

takings claim against state officials in their individual

capacity without applying the established qualified

immunity analysis that governs the viability of such

claims. In a concurring opinion, Judge Thapar

considered this categorical bar to personal capacity

takings suits to be “wrong,” because such claims were

common “in the early decades of our republic” and part

of “constitutional history.” Id. at 1027 (Thapar, J.,

concurring).

The decision below aligns the Seventh Circuit with

the Fourth and Sixth 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

29

26, the Seventh Circuit rejects them. App.12a–13a

(holding that Gerlach’s suit is “actually” against the

state because the state benefited from retaining the

interest on her property, not the individual officials).

The decision below thus solidifies the Seventh 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.

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

Comm’n, 125 F. Supp. 3d 1051, 1075 (D. Haw. 2015)

(noting conflict).

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 allow 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 liable for takings

violations.”) (citing Vicory v. Walton, 730 F.2d 466,

467 (6th Cir. 1984)).

For its part, the Third Circuit appears skeptical of

personal capacity suits asserting a Takings Clause

30

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

Richards, 62 F.4th at 769, 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 took

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 resembles 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.

The case law in the Eleventh Circuit is a bit more

developed, yet more disjointed. It 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

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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.

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

32

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,” conflicting 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 review.

B. The

Seventh

Circuit’s

Decision

Is

Inconsistent with This Court’s Precedent

The Seventh Circuit’s decision to bar personal

capacity Section 1983 claims in the takings context

cannot be reconciled with this Court’s precedent,

especially Hafer, where, 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.” 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

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

33

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 v. Rhodes, 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 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[.]”); Hopkins v.

Clemson Agric. College, 221 U.S. 636, 643 (1911)

(“Public agents must be liable to the law, unless they

are to be put above the law. For how ‘can these

principles of individual liberty and right be

maintained if, when violated, the judicial tribunals

are forbidden to visit penalties upon individual

offenders . . . whenever they interpose the shield of the

state?” (citation omitted)).

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.

34

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

state officials in their personal capacity); People of

Colo. ex rel. Watrous v. Dist. Ct. of U.S. for Dist. of

Colo., 207 F.2d 50, 57 (10th Cir. 1953) (holding, in

takings case, that “the remedy is against the state

officer, individually, to prevent his unlawful act or for

appropriate redress if it has been consummated”). Yet,

in the decision below, the Seventh Circuit held that

the right to sue officials in their personal capacity

recognized in Hafer does not exist when the suit

asserts an unconstitutional taking. App.12a–13a

(concluding that sovereign immunity bars personal

capacity takings claims under 42 U.S.C. § 1983).

The Seventh Circuit’s rationale is also contrary to

this Court’s precedent. In rejecting Gerlach’s claim,

the court below relied heavily on its belief that any

payment of damages would have to come from the

state, not the individual defendants. App.12a (“[T]he

amount she claims she is owed should have been paid

by the state.”). 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

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

35

sued in their personal capacity when the plaintiff

asserts a violation of the Takings Clause.

CONCLUSION

The Court should grant the Petition.

DATED: June 2024.

Respectfully submitted,

MATTHEW HEFFNER

MATTHEW HURST

Heffner Hurst

30 North La Salle Street

Suite 1210

Chicago, IL 60602

Telephone: (312) 346-3466

J. DAVID BREEMER

Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

JBreemer@pacificlegal.org

CHARLES R. WATKINS

Guin, Stokes & Evans, LLC

805 Lake Street, #226

Oak Park, IL 60301

Telephone: (312) 878-8391

GARETT BLANCHFIELD

ROBERTA YARD

Reinhardt Wendorf & Blanchfield

80 So. 8th Street, Suite 900

Minneapolis, MN 55402

Telephone: (651) 287-2100

Counsel for Petitioner