In Sterling Hotels,LLC v. McKay, No. 22-1345 (June 22, 2023) the U.S. Court of Appeals for the Sixth Circuit considered whether a hotel could sue a state elevator inspector who barred the hotel from operating its elevators for reasons the state's Elevator Safety Board had not approved. As a result, the hotel couldn't rent rooms on five of its six floors.
Federal complaint -- including a takings claim against the inspector in his individual capacity -- followed. The district court declined to address whether the inspector had qualified immunity from the takings claim. Next stop, Sixth Circuit.
Did the inspector violate the hotel's "clearly established constitutional rights" and thus not enjoy immunity? Nope:
Sterling next argues that McKay engaged in an unconstitutional regulatory taking when he sealed the elevators. At the time of the alleged taking, however, no court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity—which is the capacity in which Sterling sued McKay here—and at least one case suggested the contrary. See Viceroy v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) (“Plaintiff cites no case, and we can find none, that suggests that an individual may commit and be liable in damages for a ‘taking’ under the Fifth Amendment”). McKay’s potential individual liability for a regulatory takings claim was not clearly established when he sealed the elevators. That means McKay is entitled to qualified immunity on this claim.
Slip op. at 5.
So can a government official be liable for a taking in his individual capacity? Still don't know. But until the Sixth Circuit or the Supreme Court says yes, then the answer is going to be no. Or at least you can't sue for that. At least not in the Sixth Circuit.
The story isn't over completely, however, because the hotel also asserted a procedural due process claim that it was entitled to notice and a chance to be heard before the inspector tagged the elevators. On this, the Sixth Circuit agreed this right is clearly established, and the inspector enjoys no immunity. See slip op. at 5.
Sterling Hotels, LLC v. McKay, No. 22-1345 (6th Cir. June 22, 2023)