Property owners sued the State of Ohio Department of Transportation's Director (in his official capacity) in federal court after ODOT's highway project resulted in flooding of their land. They raised two claims: the first, a taking under the Fifth (and Fourteenth) Amendments, and the second a claim under 42 U.S.C. § 1983. The relief sought: a declaration that this is a taking along with just compensation, and damages for the section 1983 violation.
If you are thinking "what about the Eleventh Amendment?," you would be thinking like the U.S. Court of Appeals for the Sixth Circuit. In Ladd v. Marchbanks, No. 19-4136 (Aug. 20, 2020), the appeals court affirmed the district court's dismissal of the complaint. No federal court lawsuits against a state is the general rule. There are exceptions, of course, most notably when Congress abrogates the states' immunity, but the Supreme Court has held that section 1983 isn't one of those exceptions.
The Sixth Circuit concluded that it was bound by an earlier circuit ruling (DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir. 2004)) which held that takings claims are not excepted. And Eleventh Amendment immunity includes not only the State qua State, but also when, as here, a state official is sued in his official capacity and the remedy sought would impact the state's treasury (in other words, the state is the real party interest).
The only new twist since DLX was that in the interim, the U.S. Supreme Court decided Knick. The plaintiffs asserted that the Court's use of the term "government" means that the Court implicitly recognized the Eleventh Amendment immunity did not govern takings claims against states. See slip op. at 5. The Sixth Circuit rejected the argument:
The fatal flaw in Plaintiffs’ argument is that the Court’s opinion in Knick says nothing about sovereign immunity. And as Plaintiffs concede, the defendant in Knick was a municipality, so it had no sovereign immunity to assert. (Id. (“As the Opinion in Knick dealt with the actions of a Pennsylvania township the Court was not forced to directly address the interplay between the Fifth Amendment’s taking clause and the state sovereign immunity of the Eleventh Amendment.”)); see N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006) (“[T]his Court has repeatedly refused to extend sovereign immunity to counties.”); Jinks v. Richland County, 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.”). Knick held only that takings plaintiffs are no longer required to exhaust their claims in state court before filing a federal claim—overruling Williamson Cty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)—it did not alter the sovereign immunity framework discussed above.
Slip op. at 6.
And what about the self-executing nature of the Fifth Amendment (footnote 9 from First English)? No, there too, held the court:
We held that “closer examination of [First English] reveals that [it is] concerned not with abrogating the states’ Eleventh Amendment immunity in federal court, but with noting that the Fifth Amendment’s requirement of just compensation forces the states to provide a judicial remedy in their own courts.” Id. And in Knick, the Supreme Court also rejected Plaintiffs’ reading of First English. It cited footnote nine in support of its holding about when a Takings Clause violation occurs, not against whom and in what forum such a claim can be brought. Knick, 139 S. Ct. at 2172–73. So First English also doesn’t require reconsideration of our holding in DLX.
Without a Supreme Court case that mandates modification of DLX’s holding, it binds us. Thus, Ohio’s sovereign immunity protects Marchbanks from Plaintiffs’ § 1983 claim for damages and erodes our subject matter jurisdiction.
Slip op. at 7 (footnote omitted).
Finally, what about the declaratory and injunctive relief sought by the plaintiffs? That would not impact the state's treasury. The court also rejected that argument, concluding that the complaint did not seek prospective relief because the property owners were seeking relief for damage already caused (not to stop future damage), so could not invoke the exception to Eleventh Amendment immunity from Ex parte Young, 209 U.S. 123 (1908).
Ladd v. Marchbanks, No. 19-4136 (6th Cir. Aug 20, 2020)
