Skatemore, Inc. v. Gretchen Whitmer, 40 F.4th 727

Background

In March 2020 Michigan Governor Whitmer issued executive orders (EOs) closing places of public amusement, including bowling alleys and skating rinks, beginning March 16, 2020; operations remained restricted in piecemeal extensions and then by indefinite criteria from June 1, 2020.
The Michigan Supreme Court held on October 2, 2020 that the Governor lacked authority to issue emergency orders after April 30, 2020; the MDHHS director later issued parallel orders (effective Nov. 18–Dec. 21, 2020) closing the same businesses.
Plaintiffs (operators of bowling alleys and rinks) sued Governor Whitmer, MDHHS Director Robert Gordon (official capacities), and MDHHS alleging unconstitutional takings under the Fifth Amendment and the Michigan Constitution and brought the federal claim under 42 U.S.C. § 1983.
The district court dismissed for lack of jurisdiction under the Eleventh Amendment and denied leave to amend to add personal-capacity claims; it alternatively held the EOs did not state an actionable taking.
On appeal the Sixth Circuit affirmed: it held Eleventh Amendment immunity barred Plaintiffs’ federal takings suit against the State and officials in their official capacities, and that amendment to add personal-capacity claims would be futile because of qualified immunity and lack of clearly established law.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Eleventh Amendment bars federal takings suit against state and officials sued in official capacity	Eleventh Amendment does not apply because the statutory basis for EOs was later struck down; Knick permits federal takings claims; Fourteenth Amendment incorporation abrogates immunity; states waived by ratifying amendments	Eleventh Amendment bars suits against states and state agencies; officials in official capacity share that immunity; no recognized exception applies	Immunity bars suit; none of Plaintiffs’ asserted exceptions apply, so dismissal affirmed
Whether Knick or the Takings Clause abrogates sovereign immunity	Knick allows federal takings suits and provides no Eleventh Amendment exception	Knick involved a municipality (no Eleventh protection); Sixth Circuit precedent holds Takings Clause does not abrogate immunity	Knick does not abrogate Eleventh Amendment or overrule controlling Sixth Circuit precedent (Ladd)
Whether ratification of the Fourteenth Amendment or historical intent waives/abrogates state immunity for takings	Ratification after the Eleventh Amendment and incorporation of the Fifth through the Fourteenth implies waiver/abrogation	Ratification does not itself abrogate immunity; abrogation requires clear congressional action or limited originalist consent (PennEast distinguishes federal eminent-domain context)	Ratification is not a waiver/abrogation; PennEast is limited to federal eminent-domain context and does not help Plaintiffs
Whether amendment to add personal-capacity claims is permissible and would survive dismissal	Plaintiffs sought to add personal-capacity claims to pursue damages	Defendants argued amendment would be futile; officials would be entitled to qualified immunity	Amendment denied as futile: even assuming personal-capacity suits, defendants entitled to qualified immunity because no clearly established law made pandemic-era closures a taking

Key Cases Cited

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (overruled Williamson County’s state-court-exhaustion requirement; allowed federal takings suits against local governments)
PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021) (held States implicitly consented to certain federal eminent-domain suits by or on behalf of the federal government)
Ladd v. Marchbanks, 971 F.3d 574 (6th Cir. 2020) (held Fifth Amendment’s Takings Clause does not abrogate state sovereign immunity)
Chisholm v. Georgia, 2 U.S. 419 (1793) (early decision prompting adoption of the Eleventh Amendment regarding state immunity)
Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019) (discussed the historical and sovereign foundations of state immunity)
Ex parte Young, 209 U.S. 123 (1908) (permits prospective injunctive suits against state officials for ongoing violations of federal law, but not retroactive money damages)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (limits on suing state officials; ultra vires exception narrow and does not permit retroactive relief from the state treasury)
Hans v. Louisiana, 134 U.S. 1 (1890) (Eleventh Amendment principles apply to suits by a state’s own citizens)
Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) (previously required state-court exhaustion for takings claims; overruled by Knick)
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (established the modern qualified immunity framework)