Not a takings case, but we’re posting it here because there’s an eminent domain angle.
In Nilsen v. University of Washington, No. 24-7460 (9th Cir. Aug. 13, 2026), the U.S. Court of Appeals for the Ninth Circuit addressed whether UW is an arm of the State of Washington and consequently outside section 1983’s definition of a “person.” The court answered yes.
The case arose after UW terminated employees because they did not comply with the University’s COVID-19 vaccination policy. The former employees sued under 42 U.S.C. § 1983, asserting First and Fourteenth Amendment claims. The threshold question relevant to the published opinion was whether UW is a “person” as defined in the statute?
This is important to us takings types, because when the entity which is claimed to have effected a taking is the State itself, we know that the Eleventh Amendment prohibits it from being sued in federal court if the plaintiff seeks a monetary just compensation remedy. Yes, there’s the Ex parte Young exception, but that is a workaround that allows only equitable-type relief. And when state institutions or agencies such as UW gets sued, they often seek to cloak themselves with the authority of the state in order to be deemed an arm of the state with the state’s immunity.
To determine whether UW is an arm of the state, the Ninth Circuit applied the test from the Supreme Court’s recent opinion in Galette v. New Jersey Transit Corp., concluding that Galette “refines and rebalances,” rather than replaces the Ninth Circuit’s existing test for sovereign immunity, with the new weighting requiring a look at (among other things) whether state law makes the entity legally separate. Part of that inquiry is whether the entity possesses the state’s power of eminent domain.
UW can condemn property, exercising its powers under a chapter in Washington statutes that governs the State’s exercise of the power, and not under the separate chapter which governs situations where corporations are delegated the power. The Ninth Circuit thought that distinction supported the conclusion that Washington treats UW as part of the state, rather than as an independent corporation.
The history and tradition matter. The court noted that when the Territory created UW in 1863, it was expressly a separate “body corporate and politic” that could sue and be sued. After statehood, however, the 1890 Legislature established UW without that corporate designation or an express sue-and-be-sued power. The court read that history as evidence that modern UW is legally different from its territorial predecessor, and even if it was first created as a separate entity, it is now an arm of the state.
Nilsen v. University of Washington, No. 24-7460 (9th Cir. Aug 13, 2026)