Ladd v. Marchbanks

971 F.3d 574

Abigail LADD; Christina Gonzales; Ida Duenke; Gerardo Saldaña; David Saldaña; Marcelino Saldaña; Alicia Roberts ; Melinda Addenbrock; Deanna McCrate, Plaintiffs-Appellants,

v.Jack MARCHBANKS, Ohio Department of Transportation, Defendant-Appellee.

No. 19-4136

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2020

Decided and Filed: August 20, 2020

Rehearing En Banc Denied October 6, 2020

ARGUED: Zachary J. Murry, BARKAN & ROBON, LTD., Maumee, Ohio, for Appellants. Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Zachary J. Murry, BARKAN & ROBON, LTD., Maumee, Ohio, for Appellants. Benjamin M. Flowers, Samuel C. Peterson, William J. Cole, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: NORRIS, NALBANDIAN, and READLER, Circuit Judges.

NALBANDIAN, Circuit Judge.

"It is not in the power of individuals to call any state into court." 3 Debates on the Constitution 533 (J. Elliot ed. 1876) (James Madison). This principle of state sovereign immunity was foundational to the formation of our republic. Certain constitutional provisions and acts of Congress have abrogated the States’ sovereign immunity—and of course the States may waive their immunity at their pleasure. But by and large the States remain protected from private civil suits. We held as much for takings claims brought against states in federal court. DLX, Inc. v. Kentucky , 381 F.3d 511, 526 (6th Cir. 2004). So when the plaintiffs here brought a takings claim against an Ohio official and Ohio asserted its sovereign immunity as an affirmative defense, the district court dismissed the suit for lack of subject matter jurisdiction. Because DLX remains the law of this circuit, we AFFIRM .

I.

Abigail Ladd, Christina Gonzales, Ida Duenke, Gerardo Saldaña, David Saldaña, Marcelino Saldaña, Alicia Roberts, Melinda Addenbrock, and Deanna McCrate (collectively "Plaintiffs") are property owners in Hancock County, Ohio.¹ In 2016, the Ohio Department of Transportation began a construction project on a portion of Interstate Highway Seventy-Five near Plaintiffs’ properties. As a result of this construction, storm and groundwater flooded Plaintiffs’ properties three times and caused significant damage. So Plaintiffs filed a federal complaint against Jack Marchbanks, Director of the Ohio Department of Transportation, in his official capacity. The complaint contains two counts. First, a claim brought directly under the Fifth Amendment to the United States Constitution and Article I, Section 19 of the Ohio Constitution, seeking a declaratory judgment that the flooding caused a "change in topography [that] constitutes a taking of private property without just compensation," and compensation for the same. (R. 1, Compl. at PageID # 7.) And second, a claim brought under 42 U.S.C. § 1983 seeking damages for the alleged taking.

Marchbanks moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), because Ohio's sovereign immunity deprived the district court of subject matter jurisdiction, and under Federal Rule of Civil Procedure 12(b)(6), because the complaint fails to state a claim upon which relief can be granted. The district court granted Marchbanks's motion, holding that "[t]he Eleventh Amendment prohibits Plaintiffs from asserting these claims in federal court."² (R. 17, Dismissal Order at PageID # 102.) This appeal follows.

II.

We review a district court's order dismissing a complaint under Federal Rule of Civil Procedure 12(b)(1) de novo "except that, like the district court, we do not presume the truth of factual allegations pertaining to our jurisdiction to hear the case, and the plaintiff still bears the burden of demonstrating jurisdiction[.]" Russell v. Lundergan-Grimes , 784 F.3d 1037, 1045 (6th Cir. 2015).

"After independence, the States considered themselves fully sovereign nations. ... Under international law, then, independence ‘entitled’ the Colonies ‘to all the rights and power of sovereign states.’ " Franchise Tax Bd. of Cal. v. Hyatt , ––– U.S. ––––, 139 S. Ct. 1485, 1493, 203 L.Ed.2d 768 (2019) (quoting McIlvaine v. Coxe's Lessee , 8 U.S. (4 Cranch) 209, 212, 2 L.Ed. 598 (1808) ). And " ‘[a]n integral component’ of the States’ sovereignty was ‘their immunity from private suits.’ " Id . (quoting Fed. Mar. Comm'n v. S.C. Ports Auth. , 535 U.S. 743, 751–52, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) ). With their ratification of the federal Constitution, the States ceded many aspects of their sovereign authority to the federal government—but not their immunity from civil suit. Id . at 1497 ; see U.S. Const. art. I, § 10; art. IV, §§ 1, 2. As Madison put it: "Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." The Federalist No. 39 (James Madison). And Hamilton echoed a similar sentiment: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union." The Federalist No. 81 (Alexander Hamilton) (emphasis omitted).

That said, by ratifying the federal Constitution, the States consented to federal court jurisdiction over them for certain suits. For example, Article III "provide[s] a neutral federal forum in which the States agreed to be amenable to suits brought by other States." Hyatt , 139 S. Ct. at 1495 (citing U.S. Const. art. III, § 2). And they "similarly surrendered a portion of their immunity by consenting to suits brought against them by the United States in federal courts." Id . (citing Monaco v. Mississippi , 292 U.S. 313, 328, 54 S.Ct. 745, 78 L.Ed. 1282 (1934) ; Fed. Mar. Comm'n , 535 U.S. at 752, 122 S.Ct. 1864 ). Early on, the Supreme Court held that by ratifying Article III, Section Two's inclusion of cases "between a state and citizens of another state" within the judicial power of the United States, the States consented to federal jurisdiction over civil suits brought by private citizens against the States. Chisholm v. Georgia , 2 U.S. (2 Dall.) 419, 420, 1 L.Ed. 440 (1793). But "[t]hat decision precipitated an immediate furor and uproar across the country. Congress and the States accordingly acted swiftly to remedy the Court's blunder by drafting and ratifying the Eleventh Amendment." Hyatt , 139 S. Ct. at 1495–96 (quotation marks and citations omitted). That Amendment makes clear: "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." U.S. Const. amend. XI. Nor do federal courts have jurisdiction over suits against the States by their own citizens. Hans v. Louisiana , 134 U.S. 1, 18–19, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

Yet some constitutional provisions authorize Congress to abrogate the States’ sovereign immunity. For example, Section Five's grant of Congressional power to enforce the Fourteenth Amendment's substantive provisions permits such abrogation. Fitzpatrick v. Bitzer , 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). As does Article I's grant of legislative power to Congress over bankruptcy matters. Cent. Va. Cmty. Coll. v. Katz , 546 U.S. 356, 378–79, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006). Notably, 42 U.S.C. § 1983 does not abrogate the States’ sovereign immunity. Quern v. Jordan , 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). All in all, the States’ sovereign immunity predates the Constitution; so unless the Constitution itself, or Congress acting under a constitutional grant of authority, abrogates that immunity, it remains in place.³ Alden v. Maine , 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) ; see William Baude , Sovereign Immunity and the Constitutional Text , 103 Va. L. Rev. 1, 13–15 (2017).

In DLX, Inc. v. Kentucky , we held that the States’ sovereign immunity protects them from takings claims for damages in federal court. 381 F.3d at 526, overruled on other grounds by San Remo Hotel, L.P. v. City and County of San Francisco , 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). True, the plaintiffs in DLX sued the Commonwealth of Kentucky, and Plaintiffs here sued an officer of the State of Ohio. But this formality can't help plaintiffs bypass sovereign immunity " ‘when the state is the real, substantial party in interest,’ as when the ‘judgment sought would expend itself on the public treasury or domain, or interfere with public administration.’ " Stewart , 563 U.S. at 255, 131 S.Ct. 1632 (quoting Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 101 n.11, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ) (internal quotation marks and citation omitted). Plaintiffs sued Marchbanks in his official capacity, so the Ohio treasury is responsible for any judgment against him. Thus, Ohio's sovereign immunity extends to Marchbanks. And we haven't overruled DLX as an en banc court. So "unless a decision of the United States Supreme Court mandates modification[,]" DLX forecloses Plaintiffs’ claim for damages under 42 U.S.C. § 1983. United States v. Moody , 206 F.3d 609, 615 (6th Cir. 2000).

All of this is well-settled. But this case presents one twist. Namely, Plaintiffs claim that the Supreme Court's recent decision in Knick v. Township of Scott , ––– U.S. ––––, 139 S. Ct. 2162, 204 L.Ed.2d 558 (2019), overruled DLX . They say that the Court's use of the terms "a government," "the government," and "state officials" connotate a broad application of "and an implicit, if not explicit, recognition by the Supreme Court that the fact of the taking should be the critical component of this Court's inquiry, with little regard for the entity conducting the tak[ing]." (Appellants’ Br. at 24.) In...