Respondents Brief — Michael Pung, Personal Representative of the Estate of Timothy Scott Pung, Petitioner v. Isabella County, Michigan

No. 25-95

In the

Supreme Court of the United States

MICHAEL PUNG, PERSONAL REPRESENTATIVE OF

THE ESTATE OF TIMOTHY SCOTT PUNG,

Petitioner,

v.

ISABELLA COUNTY, MICHIGAN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

BRIEF IN OPPOSITION

Douglas J. Curlew

Counsel of Record

Cummings, McClorey,

Davis & Acho, P.L.C.

17436 College Parkway

Livonia, MI 48152

(734) 261-2400

dcurlew@cmda-law.com

Counsel for Respondent

383855

A

(800) 274-3321 • (800) 359-6859

i

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

By historical analysis looking back to the Magna

Carta, the Michigan Supreme Court has held that the

former owner of tax-foreclosed property has a common

law property interest (protected by the Michigan

Constitution) in “surplus proceeds,” if any, produced by

the tax-foreclosure sale (i.e., the sale price, minus the

amount of the tax delinquency and fees incurred by the

government relating to the foreclosure process that had

to be undertaken as a consequence of that delinquency).

Rafaeli, LLC v. Oakland County, 505 Mich. 429, 477,

482-4, 952 N.W.2d 434, 462, 465-6 (2020). By similar

historical analysis, this Court has described that the

Fifth Amendment likewise protects this interest in the

“overplus,” “excess” or “surplus” proceeds from a taxforeclosure sale. Tyler v. Hennepin County, Minnesota,

598 U.S. 631, 639-43 (2023).

Looking to case law from the alternative contexts of

eminent domain and regulatory appropriation, Petitioner

Pung insists that the former owner of tax-foreclosed

property is constitutionally entitled to be compensated

for the supposed “fair market value” of the property,

regardless of the amount actually yielded by that taxforeclosure sale. The questions presented are:

I.

Whether the Fifth Amendment requires that

compensation in the context of tax foreclosure

be determined by the supposed “fair market

value” of the foreclosed real estate, rather than

the foreclosure sale proceeds actually obtained?

ii

II. Whether the “Excessive Fines Clause” of the

Eighth Amendment provides an alternative

source of protection, whereby the former owner

of tax-foreclosed property can recover the “fair

market value” of the real estate (and possibly

more) as “damages”?

iii

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Michael Pung was the Plaintiff in the

United States District Court for the Western District of

Michigan (transferred to the United States District Court

for the Eastern District of Michigan) and the Appellant/

Cross-Appellee in the United States Court of Appeals for

the Sixth Circuit.

Respondent Isabella County, Michigan, was a

Defendant in the United States District Court for

the Western District of Michigan (transferred to the

United States District Court for the Eastern District of

Michigan) and an Appellee/Cross-Appellant in the United

States Court of Appeals for the Sixth Circuit.

iv

CORPORATE DISCLOSURE STATEMENT

The Respondent is not a publicly owned corporation

or a subsidiary or affiliate of such.

v

RELATED PROCEEDINGS

1.

In re Petition of Isabella County Treasurer, No. 2014011664-CF, Isabella County Circuit Court. Judgment

entered October 8, 2015.

2.

In re Petition of Isabella County Treasurer, No.

329858, Michigan Court of Appeals. Judgment

entered April 18, 2017.

3.

In re Petition of Isabella County Treasurer, No.

155846, Michigan Supreme Court, Order Denying

application for appeal entered October 31, 2017.

4.

Pung v. Koepke, et al., No. 1:18-cv-01334, United

States District Court for the Western of Michigan.

Judgment (in part) entered September 29, 2020.

5.

Pung v. DePriest, et al., No. 1:20-cv-13113, United

States District Court for the Eastern District of

Michigan. Judgment entered September 29, 2022

(amended nunc pro tunc June 5, 2025).

6.

Pung v. Koepke, et al., Nos. 22-1919, 22-1939, United

States Court of Appeals for the Sixth Circuit.

Judgment entered January 28, 2025.

vi

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS

PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS BELOW . . . . . iii

CORPORATE DISCLOSURE STATEMENT . . . . . . . iv

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

COUNTER-STATEMENT OF THE CASE . . . . . . . . . 1

ARGUMENT FOR DENYING PETITION . . . . . . . . . 5

I.

PUNG’S POSTULATED ENTITLEMENT

T O “ FA I R M A R K E T VA L U E ”

COMPENSATION DEFIES LONG ESTABLISHED LAW (AND WOULD

R E N DE R T A X F OR E C L O S U R E

NONVIABLE AS A MEANS OF TAX

COLLECTION) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. T H E E I G H T H A M E N D M E N T ’ S

“EXCESSIVE FINES CLAUSE” IS

CATEGORICALLY INAPPLICABLE

TO TAX FORECLOSURE . . . . . . . . . . . . . . . . 10

vii

Table of Contents

Page

III. PUNG PRESENTS NEITHER A VIABLE

ISSUE, NOR A “CIRCUIT SPLIT,”

FOR THIS COURT TO RESOLVE . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Austin v. United States,

505 U.S. 602 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

BFP v. Resolution Trust Corp.,

511 U.S. 531 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Coleman ex rel. Bunn v. District of Columbia,

No. 13-1456, 2016 WL 10721865

(D.D.C. June 11, 2016) . . . . . . . . . . . . . . . . . . . . . . 13, 14

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) . . . . . . . . . . . . . . . . . . 6, 10

Ingraham v. Wright,

430 U.S. 651 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kingsley v. Hendrickson,

576 U.S. 389 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nelson v. City of New York,

352 U.S. 103 (1956) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Polizzi v. County of Schoharie,

F. Supp. 3d 141 (N.D.N.Y. March 12, 2024) . . . . 13, 14

Rafaeli, LLC v Oakland County,

505 Mich. 429, 952 N.W.2d 434

(2020) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 6, 7, 10, 12

ix

Cited Authorities

Page

Tyler v. Hennepin County, Minnesota,

598 U.S. 631 (2023) . . . . . . . . . . . . . . . . . 5, 6, 10, 13, 14

United States v. Bajakajian,

524 U.S. 321 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Lawton,

110 U.S. 146 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. New River Collieries Co.,

262 U.S. 341 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5, 13

U.S. Const. amend. VIII . . . . . . . . . . 2, 3, 4, 10, 11, 12, 13

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 12

Michigan Const. art. 10 §2 . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Statutes

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fed. R. Civ. P. 12(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mich. Comp. Laws §41.61(10) . . . . . . . . . . . . . . . . . . . . . . 1

x

Cited Authorities

Page

Mich. Comp. Laws §211.19 . . . . . . . . . . . . . . . . . . . . . . . . 1

Mich. Comp. Laws §211.24 . . . . . . . . . . . . . . . . . . . . . . . . 1

Mich. Comp. Laws §211.55 . . . . . . . . . . . . . . . . . . . . . . . . 1

Mich. Comp. Laws §211.57 . . . . . . . . . . . . . . . . . . . . . . . . 1

Mich. Comp. Laws §211.78a . . . . . . . . . . . . . . . . . . . . . . . 1

Mich. Comp. Laws §211.78b . . . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws §211.78e . . . . . . . . . . . . . . . . . . . . . . . .9

Mich. Comp. Laws §211.78f . . . . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws §211.78g(3) . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws §211.78h . . . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws §211.78k . . . . . . . . . . . . . . . . . . . . . . . 9

Mich. Comp. Laws §211.78q . . . . . . . . . . . . . . . . . . . . . . . 9

1

COUNTER-STATEMENT OF THE CASE

Under Michigan law, tow nship assessors are

responsible to determine the taxes owed upon real estate

within their township. Mich. Comp. Laws §§211.19 and

211.24. The township assessor is “certified” to fulfill that

function. Mich. Comp. Laws §41.61(10).

If the assessed taxes are not paid, the county treasurer

is notified of the deficiency. Mich. Comp. Laws §§211.55

and 211.57. The county treasurer is then obligated to

commence foreclosure proceedings to enforce collection.

Mich. Comp. Laws §211.78a et seq. There is no authority

for a county treasurer to second-guess the assessor’s

determination. Rather, the treasurer’s statutory obligation

is to act in accordance with the notice of delinquency.

As representative of the Estate of Timothy Scott

Pung, Petitioner Michael Pung had a long-running dispute

with the Union Township Assessor (Patricia DePriest)

regarding whether the estate’s property was entitled

to Michigan’s “Principal Residence Exemption” (PRE).

DePriest denied the PRE. Pung refused to pay the

resulting additional tax.

Union Township reported the tax delinquency to

the Isabella County Treasurer (Steven Pickens). The

Treasurer instituted tax-foreclosure proceedings against

the Pung Estate’s property as required by Mich. Comp.

Laws §211.78a et seq. The Michigan Court of Appeals

upheld the foreclosure against a due process challenge

by Pung. In re Petition of Isabella County Treasurer, No.

329858, 2017 WL 1393854 (Mich. Ct. App. April 18, 2017).

2

Petitioner Pung commenced this litigation in the

United States District Court for the Western District

of Michigan alleging that the assessor, the treasurer

and a clerk of Michigan’s Tax Tribunal engaged in a

“conspiracy” to violate the due process rights of Michael

Pung, as Personal Representative of the Pung Estate with

regard to the PRE. (W.D. Mich. R. 1, Pg ID 1-8, Original

Complaint). Those claims were ultimately rejected by

the courts below and are not at issue in Pung’s petition

to this Court.

But during the pendency of this litigation, the

Michigan Supreme Court decided Rafaeli, LLC v Oakland

County, 505 Mich. 429, 952 N.W.2d (2020). By historical

and legal analysis looking back as far as the Magna Carta,

the Michigan Supreme Court confirmed that the former

owners of tax-foreclosed property in Michigan retain a

common law interest (protected by Article 10, §2 of the

Michigan Constitution) in the “surplus proceeds,” if any,

yielded by the tax-foreclosure sale. Rafaeli, LLC, 505

Mich. at 477, 482-4, 952 N.W.2d at 462, 465-6.

Even before the Rafaeli decision, Pung amended

his Complaint to add claims that the Pung Estate was

entitled to just compensation for its property having been

“taken” so as to require “just compensation” under the

Fifth Amendment or, alternatively, that the Estate should

be similarly compensated in damages for having been

subjected to an “excessive fine” in violation of the Eighth

Amendment. (W.D. R. 19, Pg ID 135-141, First Amended

Complaint, Counts II-V). These claims were reiterated in

the operative Second Amended Complaint. (W.D. Mich. R.

65, Pg ID 519-522, Second Amended Complaint, Counts

III-V).

3

By reference to the Rafaeli decision, the United

States District Court for the Western District of Michigan

entered a Fifth Amendment “liability” judgment in favor

of Pung against Isabella County, while “leaving open all

questions of damages.” (Petitioner’s App., 61a-62a). The

Western District then transferred the case to the United

States District Court for the Eastern District of Michigan.

After additional discovery and briefing, the Eastern

District entered final judgment in favor of Petitioner

Pung, again by reference to Rafaeli, for the amount the

court calculated to be the “surplus proceeds” from the

tax-foreclosure sale, together with “interest from the date

of the foreclosure sale.” (Petitioner’s App., 43a-44a). The

district court expressly rejected Pung’s argument that

he should receive compensation for his alleged “equity

interest” as measured by the supposed “fair market value”

of the real estate. Id.

Pung appealed to the United States Court of

Appeals for the Sixth Circuit to press his argument

that compensation under the Fifth Amendment or,

alternatively, under the Eighth Amendment, should be

measured by the fair market value of the Pung Estate’s

former property. Isabella County cross-appealed against

the award of interest as an improper diminution of the tax

receipts to which the public collectively represented by

the County were entitled for maintenance of government

services.

The Sixth Circuit rejected both sides’ arguments. The

Sixth Circuit affirmed the Fifth Amendment judgment

(with correction of an arithmetic error in the district

court’s calculation of the surplus proceeds amount).

4

The Sixth Circuit also rejected Pung’s Eighth

Amendment argument, in light of previous case law

restricting application of the Eighth Amendment to

instances of payments extracted as “punishment” for

some offense. (Petitioner’s App., 14a). Observing that the

Michigan Supreme Court’s Rafaeli decision had rejected

characterization of Michigan tax foreclosure as punitive,

the Sixth Circuit held that Michigan’s tax foreclosure

system “does not fall within the ambit of the Eighth

Amendment.” (Petitioner’s App., 15a).

Petitioner Pung contends that “surplus proceeds”

(even with interest from the date of the foreclosure sale)

is constitutionally “inadequate compensation.” (Petition,

p. 13). He insists that either as “just compensation” under

the Fifth Amendment or as damages under the Excessive

Fines Clause of the Eighth Amendment, he is entitled

to “the difference between the fair market value of the

Pung property . . . and the tax debt.” (Petition, p. 6). By

Pung’s calculations, he is entitled to recover $192,158.07,

despite the foreclosure sale of the Pung Estate’s former

property having yielded only $76,008.00. (Petition, pp.

5-6, 12, 20, 21).

Pung’s contentions defy centuries of legal development

that have been reiterated and confirmed by this Court, the

Sixth Circuit and the Michigan Supreme Court. Pung’s

petition should be denied.

5

ARGUMENT FOR DENYING PETITION

I.

PUNG’S POSTULATED ENTITLEMENT TO “FAIR

MARKET VALUE” COMPENSATION DEFIES

LONG-ESTABLISHED LAW (AND WOULD

RENDER TAX FORECLOSURE NONVIABLE

AS A MEANS OF TAX COLLECTION).

Context matters. By reference to cases addressing

physical appropriation of property for government use

or diminution of property value through government

regulation, Petitioner Pung argues that compensation

following tax foreclosure should be measured to the

supposed pre-foreclosure “fair market value” of the real

estate. But lengthy historical analysis by this Court, by

the Sixth Circuit and by the Michigan Supreme Court,

focused on the specific context of tax foreclosure, has

already shown Pung’s contentions to be false.

“[T]axes are not themselves a taking, but are a

mandated contribution from individuals for the support

of the government for which they receive compensation

in the protection which government affords.” Tyler v.

Hennepin County, Minnesota, 598 U.S. 631, 637 (2023).

“In collecting these taxes, the State may impose interest

and late fees. It may also seize and sell property, including

land, to recover the amount owed.” Id., at 637-8.

In Tyler, this Court considered whether funds

obtained by the State through the foreclosure process in

excess of the tax delinquency, interest and fees constituted

a separate property interest that could be deemed “taken”

in violation of the Fifth Amendment, if such proceeds

were not disbursed to the former owner of the foreclosed

6

real estate. This Court answered the question in the

affirmative.

But this Court did not alter the underlying principle

that “taxes themselves are not a taking.” Nor did this

Court suggest that the property interest potentially lost

in tax foreclosure should be measured by the supposed

“fair market value” of the foreclosed real estate.

Rather, by historical review back to the Magna

Carta, this Court confirmed that compensation in the

tax-foreclosure context is measured by the “overplus,”

“excess” or “surplus” of proceeds generated by the taxforeclosure sale beyond the tax debt, interest and fees. Id.,

at 639-643. As elaborated by the Sixth Circuit in its own

lengthy historical analysis, the price obtained at public

sale of the foreclosed property has long been deemed

“the truest test of the value of the landowner’s equitable

interest in the land,” and the surplus is “the embodiment in

money of the value of that equitable title.” Hall v. Meisner,

51 F.4th 185, 193, 195 (6th Cir. 2022).

Michigan recognizes these principles. By its own

historical analysis, again back to the Magna Carta, the

Michigan Supreme Court has declared that the former

owner of tax-foreclosed property has a common law

interest (protected by Article 10, §2 of the Michigan

Constitution) to receive the “surplus proceeds,” if any,

yielded by the tax-foreclosure sale. Rafaeli, LLC v

Oakland County, 505 Mich. 429, 473, 477, 482-4, 952

N.W.2d 434, 460, 462, 465-6 (2020).

The Michigan Supreme Court also confronted in

Rafaeli the same demand now argued by Petitioner

7

Pung, i.e., that the former owner’s “equity” in the

foreclosed property requires compensation measured by

the supposed pre-foreclosure “fair market value” of the

property. In response, the court emphasized that “the

remedy for a government taking is just compensation for

the value of the property taken.” Rafaeli, 505 Mich. at 482,

952 N.W.2d at 465. And in the tax-foreclosure context, the

property potentially “taken” is “the surplus proceeds, not

plaintiff’s real properties.” Id., 505 Mich. at 482-483, 952

N.W.2d at 465.

The Michigan Supreme Court emphatically rejected a

“fair market value” measure of compensation. As the court

explained, “[i]f plaintiffs were entitled to collect more

than the amount of the surplus proceeds,” they would “be

taking money away from the public as a whole.” Rafaeli,

505 Mich. at 483, 952 N.W.2d at 465-6.

Ignoring context, Pung argues that the Fifth

Amendment requires compensation to the former owner

of tax-foreclosed property for the “total value” of the real

estate at some supposed pre-foreclosure “fair market

value.” (Petition, p. 10). Pung relies upon cases in which

government exercise of eminent domain or regulatory

appropriation took possession of real property for the

government to use for its own purposes. He recites

(Petition, p. 3) that “where private property is taken for

public use and there is a market price prevailing at the time

and place of the taking, that price is just compensation,”

quoting United States v. New River Collieries Co., 262

U.S. 341, 344 (1923).

But it must be remembered that foreclosure (for tax

delinquency or otherwise) is a “forced sale”—a legal

8

process developed to ensure payment to the creditor

and to avoid lengthy clouds on title to the land. See BFP

v. Resolution Trust Corp., 511 U.S. 531, 541-2 (1994).

Because foreclosed property must be sold “within time

and manner strictures” of state-prescribed procedures

to accomplish these purposes, “[m]arket value cannot be

the criterion of equivalence [of value] in the foreclosuresale context.” Id., at 538. “[P]roperty that must be sold

within those strictures is simply worth less,” and this is not

ground for objection by the former owner. Id., at 539-40,

emphasis in original. In this Court’s words, “[w]e deem,

as the law has always deemed, that a fair and proper price,

or a reasonably equivalent value, for foreclosed property,

is the price in fact received at the foreclosure sale, so long

as all the requirements of the State’s foreclosure law have

been complied with.” Id., at 545.

There is no certainty that sale of the foreclosed

property will yield proceeds greater than the former

owner’s tax debt at all. And if the former property owners

are entitled to more than surplus proceeds actually

yielded by the sale, tax foreclosure becomes a moneylosing proposition. Foreclosure would become nonviable

as a means of tax collection—with no readily apparent

alternative means for timely collection of the delinquent

revenue, particularly if such is to be done without added

costs reducing or even dissipating entirely the collected

sums.

In this latter regard, it must be observed that Pung

condemns the tax-foreclosure auction as a “fire-sale.”

(Petition, p. 15. n. 5). Pung implies that the government

should be required to undertake affirmative marketing

efforts and/or delay sale until favorable market conditions

arise.

9

But such notions work against the goals of timely

recovery of delinquent tax revenue (without the dissipation

by expense) and prompt clearing of title of the foreclosed

land. Delaying sale in hope of improved future market

conditions or undertaking a marketing campaign both

work against prompt collection of tax revenue and

generate additional expense. And every foreclosure sale

would be subject to costly litigation by the former owner

nitpicking whether the government took all possible steps

to optimize the sale result.

In short, tax foreclosure does not take real estate for

“public use.” Rather, foreclosure collects a tax delinquency.

To the extent the foreclosure sale does not yield proceeds

equal to what the former owner believes might have been

gained by a private sale at leisure, this is no ground for

objection. BFP, 511 U.S. at 538-9, 545.

It also should be observed that Michigan affords

options to taxpayers facing financial distress to avoid

foreclosure. First, the foreclosure proceedings themselves

encompass nearly two years from first notice to the

taxpayer of delinquency through the foreclosure hearing

and then the subsequent effective date of the foreclosure

judgment, Mich. Comp. Laws §§211.78b, 211.78e, 211.78f,

211.78h and 211.78k. Second, the property can be redeemed

by payment of the tax delinquency at any time during the

process. Mich. Comp. Laws §78g(3). Third, the process

can be halted by the taxpayer agreeing to participate in

an “installment payment plan” with the Treasurer. Mich.

Comp. Laws §211.78q.

Convinced that the assessor’s denial of the PRE was

improper, Pung did not to avail himself of these options.

10

And his objections to the foreclosure were rejected by the

Michigan Court of Appeals.

In this litigation, the Pung Estate has obtained

judgment from the district court for the surplus proceeds

that the Estate could claim (together with interest atop

that). And the County has paid the surplus proceeds

judgment. (E.D. Mich. R. 58-2, Pg ID 1408, Endorsed

Check). This is as much as Pung can demand under longestablished law. Tyler, 598 U.S. at 639-43, Hall, 51 F.4th

at 190-4, Rafaeli, 505 Mich. at 462-473, 952 N.W.2d at

454-460.1

II. THE EIGHTH AMENDMENT’S “EXCESSIVE

F I N E S C L AU S E ” I S C AT E G O R IC A L LY

INAPPLICABLE TO TAX FORECLOSURE.

This Court has confirmed that the Eighth Amendment

“was designed to protect those convicted of crimes.”

Ingraham v. Wright, 430 U.S. 651, 664 (1977). But Pung

asserts an “expansive role for the Excessive Fines Clause.”

(Petition, p. 14). Citing Austin v. United States, 505 U.S.

602 (1983), Pung contends that all “in rem civil forfeitures”

constitute “in kind punishments” constrained by the

Eighth Amendment. (Petition p. 14). According to Pung,

“post-Austin, a statutory civil in-rem forfeiture, like the

type effectuated here is a ‘fine’ within the meaning of the

Excessive Fines Clause and thusly is subject to challenge

on excessiveness grounds.” (Petition, p. 15).

1. Isabella County is still awaiting the district court’s

determination of a rate for calculation of interest (a determination

which Pung long neglected to obtain in his quest to increase the

underlying judgment to “fair market value”).

11

But Austin did not expand the scope of the Eighth

Amendment beyond the protection of persons “convicted

of crimes.” In Austin, the petitioner pled guilty to drug

offenses, and the United States sought forfeiture of

the petitioner’s home and business under statutes that

authorize forfeiture of property used in such criminal

offenses. Austin, 509 U.S. at 604, 620. It is in that context—

where the “in rem forfeiture” is directly tied to criminal

conviction of the person whose property is subject to

forfeiture—that the Eighth Amendment applies, because

the forfeiture is effectively an additional punishment of

the convicted person. As expressly confirmed in Austin,

“[t]he Excessive Fines Clause limits the government’s

power to extract payments, whether in cash or in kind,

as punishment for some offense.” Id., at 609-10, 621-2,

emphasis in original.

This was confirmed again in United States v.

Bajakajian, 524 U.S. 321 (1998). In that case, the

respondent pled guilty to the criminal offense of illegally

transporting currency. Id., at 324-5. As in Austin, the

statute under which the Bajakajian respondent was

convicted authorized “forfeiture as an additional sanction

when imposing sentence on a person convicted of a willful

violation,” so the forfeiture could be deemed “punishment”

of the “convicted” offender. Id., at 328.

This principle was confirmed yet again in Timbs

v. Indiana. The petitioner in Timbs lost property to

forfeiture after pleading guilty to transporting heroin.

With direct reference to Austin and Bajakajian, this

Court reiterated in Timbs that the Eighth Amendment

applies only where there has been a forfeiture “as

punishment for some offense.” Id., at 687.

12

Conversely, property taxes in Michigan are “not

punitive in nature.” Rafaeli, 505 Mich. at 449, 952 N.W.2d

at 447. In fact, the Michigan Supreme Court admonished

against “improperly conflat[ing]” tax foreclosure with

forfeitures tied to criminal offenses. Id., 505 Mich. at 450,

952 N.W.2d at 447-8. As explained by the court, the Rafaeli

plaintiffs “did not use their properties for illicit purposes.

They simply failed to pay their taxes, which is not a

criminal offense.” Id. The Sixth Circuit has confirmed

this distinction in the context of an Eighth Amendment

claim in another Michigan tax foreclosure case. Freed,

81 F.4th at 659.

Relevant in this regard this Court’s analysis in

Kingsley v. Hendrickson, 576 U.S. 389 (2015). In Kingsley,

this Court held that claims by pretrial detainees alleging

excessive force by jail officers must be analyzed under

the standards of the Fourteenth Amendment, rather

than the standards of the Eighth Amendment that are

applicable to a convicted inmate. Obviously, there is no

practical distinction between acts of excessive force by jail

officers against a pretrial detainee and such acts of force

by officers against a convicted offender. Nevertheless, the

Eighth Amendment applies only to a convicted offender

subject.

Likewise, the Eighth Amendment Excessive Fines

Clause should apply only against monetary penalty or

property forfeiture imposed as punishment following

conviction for a criminal offense. A compensation claim

arising from tax foreclosure falls categorically outside the

scope of the Eighth Amendment.

13

III. PUNG PRESENTS NEITHER A VIABLE ISSUE,

NOR A “CIRCUIT SPLIT,” FOR THIS COURT TO

RESOLVE.

Pung tells this Court that his case is an “ideal vehicle”

for resolving his supposed right to fair market value

compensation under the Fifth or Eighth Amendments and

to resolve a supposed “circuit split.” (Petition, pp. 18-9).

But his case is nothing of the sort.

First, there is no issue requiring resolution at all.

This Court already confirmed in Tyler that “surplus” or

“excess” proceeds are the measure of compensation in the

tax-foreclosure context.

Second, there is no “circuit split” on the issue. Pung

fails to cite any circuit court decision even suggesting

(much less holding) that the former owner of tax-foreclosed

property is entitled by the Fifth or Eighth Amendments to

“fair market value” compensation. He cites only a pair of

district court opinions—and even these two cases cannot

be read to authorize any recovery greater than surplus

proceeds.

Although both Coleman ex rel. Bunn v. District of

Columbia, No. 13-1456, 2016 WL 10721865 (D.D.C. June

11, 2016) and Polizzi v. County of Schoharie, F. Supp. 3d

141 (N.D.N.Y. March 12, 2024) use the phrase “surplus

equity,” neither case actually awards such recovery.

Indeed, Coleman was predicated upon United States

v. Lawton, 110 U.S. 146 (1884) and Nelson v. City of New

York, 352 U.S. 103 (1956), in both of which this Court

addressed recovery of surplus foreclosure sale proceeds,

14

not supposed market value of the foreclosed property.

Coleman, 2016 WL 10721865 at *3. In turn, Polizzi was

predicated upon the surplus proceeds cases of Tyler and

Nelson. Polizzi, 720 F. Supp. 3d at 150-1.

Moreover, Coleman was a district court ruling on

a Fed. R. Civ. P. 12(c) motion seeking dismissal on the

pleadings, while Polizzi was a district court ruling on

a pre-answer motion seeking dismissal under Fed. R.

Civ. P. 12(b)(6) for failure to state a claim. These district

court decisions do not represent a “circuit split” on any

issue, much less regarding Pung’s “fair market value”

compensation demand. It is disingenuous for Pung to

claim that they do.

CONCLUSION

Pung’s petition offers neither an open legal issue nor

a genuine “circuit split” for review by this Court. In the

specific context of tax foreclosure, this Court has already

confirmed that the constitutionally cognizable measure

of compensation consists of the “surplus” or “excess”

proceeds yielded by the tax-foreclosure sale, not the

supposed “fair market value” of the foreclosed property.

15

The Sixth Circuit affirmed Pung’s judgment on that

basis. No circuit has ruled otherwise. Pung’s petition

should be denied.

Respectfully submitted,

Douglas J. Curlew

Counsel of Record

Cummings, McClorey,

Davis & Acho, P.L.C.

17436 College Parkway

Livonia, MI 48152

(734) 261-2400

dcurlew@cmda-law.com

Counsel for Respondent