Dlx, Inc. v. Commonwealth of Kentucky

gun tо handle the Johnson knew that the serial number of opportunity forded the scratches, they pistol question some- was obliterated at were inspect and question. Consequently, that the time in to make the inference positioned how jury’s that seen the scratches and verdict Johnson violated 18 had both Johnson 922(k) 924(a)(1)(B) §§ they were. Not U.S.C. and cannot recognized them for what In addition stand. We therefore reverse Johnson’s under these circumstances. so conviction, sentence, jurors’ his and re- to the fact that examination vacate under mand this case to the district court for well-lighted in a courtroom occurred entry judgment acquittal. of a free of either time constraints conditions that, stress, are satisfied as a matter we REVERSED, CONVICTION SEN- law, jury inference a double stacked VACATED, RE- TENCE and CASE (1) seen the Johnson must have MANDED INSTRUCTIONS TO WITH (2) scratches, seeing and from the scratch- ACQUITTAL. JUDGMENT OF ENTER gained knowledge actual es he must have (a) they in the location of the were (b) sufficient to obliter- serial number it, overcoming close to

ate comes nowhere

the hurdle reasonable doubt. end, escape

In the we cannot the deter-

mination that the combination of the evi- DLX, INC., Plaintiff-Appellant, presented jury and all rea-

dence from that evidence are sonable inferences beyond a reasonable prove insufficient KENTUCKY, et Commonwealth knew that serial doubt that Johnson al., Defendants-Appellees. (1) gun Harper number of the he saw (2) attempt Hampton, to sell to later No. 03-5528. spot Harper

took from the whеre had Appeals, United States Court of front seat placed passenger under the Sixth Circuit. seat, Harper and handed it to in the back of the had been obliterated. As failure Argued: 2004. June finding such support evidence to Aug. Decided and Filed: knowledge beyond a reasonable doubt is Rehearing En Banc Denied Oct. guilty committing fatal to verdict charged the crime for which Johnson was convicted, we need not and therefore knowing-

do not address whether Johnson

ly possessed gun during at all Hampton’s flag- period

relevant between

ging down Johnson’s car and the officers’

finding gun.

III. CONCLUSION and the in-

The evidence the record properly

ferences that could be drawn jury support

from it were insufficient to doubt, that

finding, beyond a reasonable briefed), (argued and

D. Duane Cook Ground, KY, Plaintiff-Appel- for Stamping lant. Grawe, Obradovich,

David James J. J. General, E. Attorney Todd Office of the Leatherman, Attorney Gener- Office of (briefed), al, Posnansky Brad- A. S. Mark briefed), Office (argued ford Smock Tower, Plaza Capital Legal Services KY, Frankfort, Defendants-Appellees. for MOORE, SILER, Before: BALDOCK, Judges.* Circuit MOORE, J., opinion of the delivered SILER, J., joined. in which BALDOCK, 528-534), delivered (pp. J. concurring in the separate opinion only. judgment of dismissal OPINION MOORE, Judge. Circuit (“DLX”) DLX, Inc. Plaintiff-Appellant § 1983 of its from the dismissal appeals Defendants-Appellees against action Kentucky, the Commonwealth Environmental Natural Resources * Circuit, designation. Baldock, sitting by Tenth for the Bobby Circuit R. The Honorable Appeals Court of Judge the United States (“Cabinet”), then-existing permit Protection Cabinet and James East’s that is at issue case, Bickford, Cabinet, in this Secretary bankrupt- South-East filed E. cy. DLX purchased all of South-East’s (collectively, official “Ken- capacity his assets, including the leases with tаking property of its tucky”), alleging permit. point, River and the state At that just compensation without violation permit allowing DLX had a lease and it to The district the Fifth Amendment. 3,000 acres, approximately mine which did complaint Kentucky’s on dismissed the any mining include under the Woods. 12(b)(1) Federal Rule of Civil Procedure All remaining the coal in the lease is either motion, subject jurisdic- for lack of matter under the Woods or can be accessed tion, ripeness and the on the basis through the land under Although Rooker-Feldman doctrine. both Woods. grounds inapposite, of these were we sus- reasoning,

tain on different applied this dismissal DLX for Amendment No. 3 to the existing permit, proposed because the Eleventh Amendment bars which an against Kentucky in additional 130 acres to be added to the DLX’s claims 3,000-acre permit area. DLX court. court’s submitted The district dismissal is Cabinet, plan an initial to the which re- therefore AFFIRMED. sponded “deficiency with a DLX letter.” resubmitted, adding pillar design “a for I. BACKGROUND Appendix subsidence control.” Joint (“Woods”), Lilley in Cornett Woods (“J.A.”) (Hearing Report at 73 Officer’s County, Kentucky, Letcher tract is a Recommendation). and After additional by by land owned the state and maintained letters, deficiency seventy-five-foot a verti- Kentucky University Eastern as a wildlife operations cal cover between mine and the refuge facility. research Woods submittal; proposed surface was in a third designated аre a National Natural Land- deficiency further in letters resulted a only mark “[pjrobably surviving as vir- fourth submittal which left a 250-foot ver- gin any tract of size the Cumberland cover, proposed tical a fifty-percent Mountains section mesophytic of the mixed is, recovery, that that half the coal forest, which great is characterized a area was plan. extractable under the No variety species.” of tree National Park deficiency letter was issued the Cabi- Service, Registry National Natural net, but DLX in reassessing its fourth Landmarks, http://www.nature.nps.gov/ submittal decided that the proposal was nnl/Registry/USA Map/States/Kentucky/ unfeasible, — and that a 250-foot cover would rights The surface nnl/lcw/index.htm. only result twenty-five-percent recov- originally purchased by Woods were ery. DLX therefore withdrew its fourth Kentucky Kentucky from the River Coal proposal, submitting proposal fifth in- Company, mining which retained the stead provided fifty-percent which for re- rights; a portion property of the was also covery, a 110-foot vertical cover. purchased from the Cornett heirs. proposal This was submitted with a letter 1975, the Company South-East Coal ob- requesting that permit be issued or tained a lease from River (Report). denied “as is.” J.A. at 73 On coal, Company Coal to mine including 25, 1994, coal denied, April application was Woods, pursuant under to which for six potential danger reasons: the acquired рermit South-East Woods; from the old-growth portion forest of the 3,000 Immediately state to mine acres. failure to mining op- demonstrate that the filing before the amendment feasibly accomplished South- eration could be un- claim, asserting that the de- 14(2); appli- § that the KAR 8:010 der 405 mine under the Woods permit nial of a geological sufficient not contain cation did prop- regulatory taking to demonstrate constituted information hydrologic of the constitu- project erty in violation consequences of the hydrologic reserved its federal expressly DLX Woods; present it did not tion. on claims, noting, appli- care the detailing the information hydrologic to minimize take cant would OF FEDERAL RESERVATION inadequate that there was consequences; CLAIMS surrounding na- regarding information habitats; no informa- and there was claims. hereby ture DLX reserves its Federal impact of any on the minimization pursue tion DLX will Federal petitioned on habitats. the United mining those have under remedies review, hearing, the reasons and at the States under United States Constitution were distilled application regulations. for denial statutes or for the Permit application to one: “The (State Compl.). Am. Ct. 1st J.A. at 3) (Amendment acceptable to the No. court dismissed state trial After the of the Peti- the failure except for Cabinet intermediate ripeness, lack of case for (i.e., minimum agree to to a cover tioner reversed, of and the Court Supreme surface) of mining from distance petition granted the Cabinet’s (Re- J.A. at than 110 feet.” greater DLX, Commonwealth for See review. port). Inc., (Ky.2001). That S.W.3d af- the case the basis of the on Hearing Officer Cabinet decided of remedies, deny to the Cabinet of administrative decision of exhaustion firmed the (‘We id. con- ripeness. that the Cabinet finding both rather than permit, old- to exhaust its ad- for the DLX failed protection extra clude that provide could remedies.”). DLX is not Because of the Woods that ministrative portion growth Secretary’s final or- second-growth appealed forests not for had claim, it could filing had a sufficient basis der before that Cabinet tak- cov- the state constitutional proceed the 110-foot vertical on determining that justices Two inadequate was Id. at 626-27. by petitioner ings claim. proposed er (of seven) dissented, DLX was noting that hydrologic impact to minimize the raising constitutional Noting from prevented that of the Woods. balance proceedings, production of the administrative the burdens claims in bore petitioner prevented have been the officer concluded persuasion, deci- showing from the doing appeal so in its carry its burden from DLX failed (Winter- mini- Id. at cover would of the Cabinet. “that a 110-foot vertical sion J., the decision dissenting). As hydrologic sheimer, bal- mize disturbances of certio- only, of the law a writ portion one of stаte old-growth ance within the (Re- Supreme at 93 the United States J.A. rari Lilley Cornett Woods.” from by sought. then- adopted was not report was Court port). This com- Shepherd without Secretary Phillip J. Kentucky Supreme year after One ment. constitutional dismissed DLX’s court, claim, district filed DLX permit Kentucky law allows a Although Fifth Amend- of the alleging a violation a Sec- judicial review applicant seek § 1983. 42 U.S.C. under ment KRS actionable under retary’s final Order for dismissal immediately moved 350.0305, immediately a state- filed § appeal Rule of Civil Procedure a state-court decision cannot under Federal 12(b)(1), arguing that the court lacked sub that decision to a district but must ject jurisdiction petition under the doctrine for a matter instead writ of certiorari immunity of the from sovereign Eleventh the United States Court. Amendment, ripeness, the doctrine of the This circuit has devised a number of for- exhaustion, determining doctrine of the Rooker-Feldman mulae for when a district ctrine, judicata. jurisdiction do and res dis court lacks under the Rooker- doctrine; the motion on granted trict court March Feldman broken down to essen 24, 2003, tials, ripeness on the basis of and the categories there are two of cases First, Rooker-Feldman doctrine. barred the doctrine. when the “engage federal courts are asked to II. ANALYSIS appellate proceed review state court ings,” necessarily applies. doctrine A. Review Standard of Novelties, Peterson Inc. City Berkley, 12(b)(1) A Rule motion can either (6th Cir.2002). 305 F.3d In deter face, jurisdiction attack on its mining plaintiff appellate when a asks for allegations plaintiff which case all review, past we have in the looked to the true, must be considered as or it at can sought, relief see Dubuc v. Mich. Bd. of jurisdiction, tack the factual basis for Exam’rs, (6th Law 618-19 weigh which case the trial court must Cir.2003), question or asked the whether plaintiff and the evidence bears the burden alleges “that the state court’s proving exists. See him judgment actively injury caused [rath RMI v. Westinghouse Titanium Co. Elec. er judgment merely than] failed to Corp., 78 F.3d 1133-35 Cir. preexisting redress a injury,” Pieper v. 1996); Ritchie, v. United States 15 F.3d Ass’n, Inc., Am. 458, Arbitration 336 F.3d (6th 592, Cir.1994); 598 Ohio Nat’l Life (6th Cir.2003). 461 n. 1 See also Hutcher States, 320, Ins. Co. v. 922 United F.2d 325 747, son v. County, Lauderdale 326 F.3d (6th Cir.1990). As the district court made (6th Cir.2003) (“ 755 ‘[T]he fundamental essentially no factual findings deciding appropriate question to ask is whether jurisdiction, that lacked we will treat this injury alleged by the federal 12(b)(1) as a “facial” motion. We review a resulted from the judgment state court 12(b)(1) motion to dismiss under Rule de ”) itself or is distinct from judgment.’ that novo where it requires no fact-finding. Geils, (quoting Garry 1362, 1365 v. 82 F.3d Clearinghouse See Cob Corp. v. Aetna (7th Cir.1996)); Tropf v. Fid. Nat’l Title Healthcare, Inc., United States 362 F.3d Co., (6th Cir.2002) 929, Ins. 289 F.3d 937 (6th Cir.2004); RMI, 880 78 at F.3d (The “precludes ju doctrine federal court (in attack, 1135 factual district court’s fac risdiction where the claim a specific is error). tual findings are reviewed for clear grievance that invalidly the law was —even unconstitutionally applied in plain — B. Rooker-Feldman case.”) (internal particular tiffs quotation doctrine, The Rooker-Feldman (omitted)). marks and citations Co., named for Rooker v. Fidelity Trust 44 U.S. 68 L.Ed. 362 category The second of cases (1923), and District Columbia Court barred Rooker-Feldman is those which Feldman, Appeals v. allege an injury predates that a state-court (1983), determination, L.Ed.2d 206 stands present issues inextri proposition that a party aggrieved cably intertwined with the claim asserted appro- hold Rooker-Feldman abstention proceeding. court state prior priate).1 phrasing Marshall’s Adopting Justice Inc., 1, 25, Co. v. Texaco type:

Pennzoil claim is of the second DLX’s (Mar- (1987) that alleged permit is the denial injury L.Ed.2d not proceedings, the state-court predates held, J., this circuit shall, concurring), itself, and the re decision the state-court inextricably inter- is The federal monetary. requests DLX lief that if judgment state-court with the twined Therefore, the doctrine bars to the only succeeds the federal court that the-district only to the extent de- wrongly court that the state extent decid that the state court determine must feder- it. Where before cided the issues DLX’s in order for wrongly ed issue succeed; upon predicated Here, can the state court al relief claim to exhaustion was court decided that administrative conviction state constitu necessary component of a the fed- to conceive wrong, it is difficult claim; although certain tional substance, any- as, in proceeding eral requirement, to that exceptions applied appeal prohibited thing other than them; DLX met none judgment! the state-court administratively its to exhaust had failed See, Novelties, at 391. Peterson DLX, 624-26. S.W.3d claims. Township Yp- e.g., Anderson Charter explicitly administrative As exhaustion silanti, 492-94 of a federal component F.3d con- claim,2 could have district court test “inextricably intertwined” (applying (6th Cir. Berkley, 390-93 cases of this recent We note two attempted adopt the Seventh Circuit’s 2002). abstention division between Rooker-Feldman law, casting preclusion aside Pennzoil Kentucky Su- reads the The concurrence inextricably-intertwined formulation opinion applying William- preme Court's as subsequent operates to forbid that it extent respect- we County prong-one ripeness; son already by a state decided litigation issues interpretation of disagree this fully with alleged in federal injury court where Although “prong-one'' opinion. state court's proceeding. See Stemler predates County Regional ripeness under Williamson Cir.2003) (6th Florence, 588-89 Bank, v. Planning Commission Hamilton (“As directly the challenging [plaintiff] is not 172, 186-91, 87 L.Ed.2d 105 S.Ct. court, the judgments in state court's Kentucky (1985), requirement under is preclusion are issue doctrines law, Supreme Court did not rest the case.”); Hood v. applied to this properly more thе Ken- ground. While on that its decision Keller, 341 F.3d 597-599 mo- “granted Cabinet's the tucky trial court the application of (reversing court’s district pleadings on judgment on the tion for plaintiff had where doctrine Rooker-Feldman judicial ripe for was not grounds that the case as-applied constitutional raised facial and to exhaust DLX failed and that determination pro challenges prior state-court criminal in remedies,” the its administrative applying formula ceeding without Pennzoil only “that DLX Supreme Court concluded advisability tion). of such Whatever remedies.” to exhaust its administrative failed amove, by prior cases of clearly foreclosed it is DLX, Inc., 42 S.W.3d Commonwealth claims requiring the dismissal of this Kentucky Su- Although the (Ky.2001). predating state- injury an involve to Williamson DLX cited preme Court in grounds exclusive proceedings on the "prong-one” regarding language County’s court would the federal the issues that exhaus- clearly bolster its did so to ripeness, it inextricably intertwined to decide are decision, noting the Williamson decision, tion that to. allow with state-court "explained the exhaustion of County Court that the require conclusion relief requirement in tak- remedies administrative issues wrongly decided the had state court quota- introducing Novelties, thusly” ing cases Inc. Peterson before it. See DLX had a regula- body decision, eluded that established has come to a “final” allow tory taking property under the Fifth its ing the federal courts to assess how much and was entitled to relief use of property is allowed and there undermining any without of the state fore regulatory whether decision Indeed, court’s conclusions. as discussed Id. at 186-91, amounts to taking. below, Court Williamson S.Ct. 3108. This has become known as County Regional Planning Commission v. “prong-one ripeness,” and will be dis Bank, 172, 195-97, Hamilton 473 U.S. below, cussed in more detail as an issue of (1985), clearly 87 L.Ed.2d 126 fact remains as to whether satisfies contemplates just-com- that after a state prong-one ripeness. The district pensation proceeding, a federal-court ac- however, apparently relied on prong-two tion will be filed.3 Rooker-Feldman ripeness, requires which plaintiff that a inapplicable here. compensation through “seek proce dures the provided doing State has Prong-Two C. Williamson so.” Ripeness 194, 105 Id. Administrative Ex- S.Ct. 3108. This refers haustion just to an compensation action for or in condemnation, verse or reverse but not County,

Williamson 473 U.S. at procedures. review “Exhaustion of review 186-91, 194-96, sets out Id. at 194 n. procedures is not required.” requirements two for a regulatory- First, takings ripe. claim to be S.Ct. 3108. That administrative must demonstrate that the decisionmaking exhaustion is not part Finally, tion. Id. at summing up If DLX had in fact been allowed in the state holding, Kentucky Supreme Court made courts to reach the merits of its grounds clear the lost, for its decision: likely and then it is that the formula adopted by aрplied past this circuit as in our Appeals holding Court of erred in require cases would Rooker-Feldman absten making unconstitutional-as-applied an chal- tion, in evident tension with Williamson lenge in an proceeding administrative creates County Regional Planning Commission v. exemption to the exhaustion-of-remedies Bank, 172, 195-97, Hamilton Therefore, requirement. we reverse the (1985), 87 L.Ed.2d 126 which Appeals Court of and hold that DLX’sfailure clearly contemplates takings plaintiff that a to exhaust its administrative remedies fail- who loses her claim in state court will have a order, ing appeal Secretary's deprived day in federal court. The catch-22 of the subject-matter Franldin Circuit Court ‍‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌​‌​​​‌‌‌‌‌‌‌​‌​​​​‌​‌​​​​‌‌‌‍of trap” “Williamson discussed below with re to hear DLX’s claim. spect to res is also evident with re Id. at 627. Because administrative exhaus- spect to the Rooker-Feldman doctrine. We do explicitly component tion is anot of a federal not need to confront these tensions in this claim under County, case, however, express ("Exhaus- opinion and U.S. at no as to 194 n. 105 S.Ct. 3108 the resolution of this conflict. procedures tion of review To the extent required.”), is not that recent cases of this court district court could indicate a rec have concluded that ognition "inextricably DLX had that the regulatory taking made out a intertwined” of its prong property may doing under Rooker-Feldman the Fifth be Amendment and was do, judicata entitled work undermining to relief without that res any law should England the state court’s conclusions. reservation DLX’s federal sufficient to de argument claim and its state feat a claim are Rooker-Feldman where the "indistinguishable,” England

not as the pre concurrence reservation would defeat asserts, Edwards, Ivy for this reason: the federal clusion. See claim does Club v. exhaustion, require (3d 1991) not administrative (England where 284 Cir. reservation the state claim does. Rooker-Feldman is thus sufficient to defeat Rooker-Feldman as well as inapplicable in this case. abstention). after Pullman

519 by DLX no a rule of state law. has more never re- rule exhaustion is that general court; remedy to in state the time for Patsy v. Fla. seek suits. See § 1983 quired application for review of Cabinet’s de- 496, 102 Regents, Bd. of U.S. past, any and (1982). long cision is state-court Finality, 73 L.Ed.2d it will be for want of action files dismissed however, that federal so required, is a DLX has been fed- exhaustion. denied scope taking; assess court can right through operation eral state re- is action an inverse-condemnation procedural analogue rule without federal no of the Fifth quired, because violation law, complaint ripe. its is plaintiff “has attaches until just procedure and been denied used the brief, Kentucky attempts In its to de County, compensation,” Williamson court’s aspect fend this the district hold 3108; but adminis- at U.S. ing precluded by arguing that is required. is not trаtive exhaustion pursued from “that has its arguing state remedy or that condemnation state on Kentucky argues appeal remedy inadequate, be condemnation language from William despite this clear correctly.” Ap- cause it did not invoke it County, requirement son an exhaustion But Williamson Coun Br. pellees’ at cites a number applies. still ty is clearly ripeness, with concerned not cases, two district with giving adequate state decisionmakers cases, in which a Federal Circuit case right wrong. This is opportunity apparently never satisfied the Williamson demonstrated County prong-one ripeness, Williamson adminis require Court’s staunch refusal pursued permit. This having never proce trative exhaustion. “Remedial unavailing in the face sparse precedent Williamson are required dures” precedent of clear County, because the value isn’t allowing § in a is never exhaustion at a state decisionmakers to arrive deci Congressional (except re pursuant case sion, ensuring injury that an but instead form) no exception and that there is for actually DLX has not re occurred. has County, Williamson takings claims. just compensation a state action ceived n. at same; ripe its claim is for the County prong two. held under Williamson apparently district Royal County Indus. Front & Warren the state-court action was because Royal, Corp. Town Front Park jurisdic on a lack of dismissed the basis of (even where tion, just F.3d yet “DLX has not been denied (D. effort in state plaintiff made bad-faith Op. compensation.” J.A. at Ct. under court, “no 10). clear basis just But DLX has been denied com County to determine suit; [the] it sought in a com pensation adjudi finally ripe than claim is other That pensation and none was awarded. forum.”). in a cation in the was not “on the merits” decision DLX’s mitigate strictest sense does not England D. Reserva- Res Judicata been injury; property allegedly its tion4 through permit ap the denial of taken availability The of remedy to that plication, attempt and an tak- courts to hear federal constitutional injury in the court has been defeated state disposing of the case independent basis for Although judicata jurisdictional is not res defense, it would form an but an affirmative 520

ings often illusory, claims has seemed claims, be- asserted all claims which County cause under should have been in prior raised litigation. plaintiffs in must first file state as long “[I]t has recognized been a party did, claim, filing before a federal and may not split action, its cause therefore, of deciding claim, because in that federal if pre- a cause of action should pre- have been given clusive effect must be prior to that sented arid the party failed to do so and state-court sect; action 28 under U.S.C. & again matter should arise in another according judicata5 1738 to action, the res law of it will be held the first action state, including doctrines of merg- adjudicata was res as to all causes that er and whereby bar all claims which could should properly have been presented.” brought have in an Newman, been earlier cause of Newman v. 417, 451 S.W.2d 419 action See Michael M. precluded. are (Ky.1970). Therefore, Ber- because DLX could ger, Supreme Bait & Switch: Ripe- The have brought its federal constitutional ness Regulatory Takings, Ruse 3 Wash. claim in court, argues Kentucky, that (2000). Pol’y U.J.L. & 99 Kentucky state claim is now barred operation of applies law res to just bar not claim preclusion.6 See Migra v. Warren apply, were it parties held to 517, and both have (1995)) 903 S.W.2d 521 and Consol. extensively briefed the issue. Serv., Television Cable Inc. v. Frank 354, fort, (6th Cir.1988) 857 F.2d (reject 357 5. Most of the decisions use the terms "issue ing claims that "could have been raised preclusion” preclusion” and "claim rather prior litigation” the authority under of New estoppel” than "collateral judicata,” and "res man and Campbell County Vinson v. Fiscal to avoid confusion of the judicata” use of "res Ct., 194, (6th Cir.1987)). 820 F.2d Yeo body preclusion mean the entire law man, 465, Stemler, 983 S.W.2d at cited by synonym with its narrow use as a for "claim requires preclusion that for apply, "claim preclusion.” opinion, In this we will use “res subject subsequent matter of the suit must judicata” to refer to both the doctrines of identical,” be and cites to for the Newman preclusion preclusion, and issue and we proposition that identity "there must be will use those latter possible. terms whenever causes of preclusion action” ap for claim Newman, Although Newman v. ply. key paragraph S.W.2d in Newman reads as (Ky.1970), has been the law Ken follows: tucky since its issuance and continues to be general rule determining question by Kentucky cited propo courts for the adjudicata of res parties as between in actions sition that claims which should have been First, embraces several conditions. there brought in the proceeding first are subject to Second, identity parties. must be there see, preclusion, Cecil, e.g., Whittaker v. identity be must of the two causes of action. (Ky.2002), S.W.3d this court has Third, the action be upon must decided consistently not principle. hewn Com short, merits. adjudicata the rule of res Florence, pare Stemler v. 350 F.3d does not act as a bar if there are different (relying on Yeoman v. Ken questions issues or the presented of law tucky, are 983 S.W.2d (Ky.1998), 464-65 Likewise, McDowell, long different. it has recog- Barnes v. been 730-31 (6th Cir.1988), party nized split allowing his cause of constitu action, therefore, tional process if a substantive due cause go claim to action should despite presented forward have previous been party wrong state-court failed to do action so arising again ful-death facts) from and the matter same should set of arise in anoth- Thames, action, with Donovan v. er it will be held thаt the action first (6th Cir.1997) law, ("Under Kentucky adjudicata was res toas all causes that should judicata, preclusion, or claim ‘may properly used to been presented. We stated preclude entire claims brought that were Hays rule in Sturgill, Ky. should have been brought prior in a action S.W.2d as follows: ..."’) (quoting City Covingtonv. Bd. "The rule that issues which have been once of Trs. Fund, Firefighters' Policemen s and litigated Ret. subject cannot be the matter later its federal litigate to preclusion come claim Educ., 465 U.S. Bd. Dist. City Sch. of in cases. these (1984) claim, unusual this is but 892, 79 L.Ed.2d 85, 104 S.Ct. courthouse door federal barring of the The claim-preclu- have (state-court judgments unanticipated an actions, con- seems barring litigants takings § to in effects sive prior County, and one brought in not of Williamson claims effect stitutional action). course, context, Of as takings to the unique contract which is state-court re- ripeness County’s have the not do given plaintiffs § other to have chosen not could ac- filing prior state-court quirements, of requirement encompass- first action County, a federal-court the ex- tions; file reading Williamson claims; and federal its state both ing state an is that unsuccessful pectation of Williamson therefore, the interaction court. return to federal will then plaintiff the and requirements County’s ripeness this addressed have A of circuits number possibly could preclusion claim of doctrine contexts. different of in a number problеm every regulatory-takings keep to operate litigated in fact their plaintiffs have Some if Even court.7 out of federal claimant to court, wish and claims in state federal opera- to be is held only preclusion issue feel is they preclusion avoid issue under Wil- ripen who plaintiffs against tive litigate their to chose not unfair. Others still could plaintiffs County, most liamson in some state claims in federal courthouse, as federal from the be barred of explicit an reservation made doing so will takings claim state constitutional court, as federal to claims federal their federal substantially with overlap often appeals have The courts DLX did. prevented in fact DLX was As claim. no court ways, but in various responded in its state the issues all litigating from its reserves plaintiff a that where held affected would have which reservation, England in claims federal over- claim, needs to only it rules, a state necessary in salutary not action both "sub- be in identical subsidiary takings claim would justice. The administration for the "cause action” ject matter” up his cause split not one rule law. claim-preclusion upon purpose of piecemeal rests it tried action and not permit it would To foundation. same where a apply Although would this party or fair adverse just proce demonstrate could Prestonsburg So, v. as Combs said courts. clearly inade are the state offered dures 18: Co., S.W.2d Ky. Water cause of a state between quate, the distinction that, elementary when matter rule is 'The state of action in cause and a action bring required to are litigation, parties Supreme Court is troublesome. courts case; plea of and "the whole their forward Takings Fifth that the has held points only to the applies not judicata remedy self-executing in state is a Clause the court upon which Evangelical Lutheran courts, English First see pronounce opinion and form an parties Angeles, 482 U.S. Los Church property every point which but to judgment, n. 315-16 & and which subject litigation, belonged the "inadequate” rem (1987), so the L.Ed.2d diligence, exercising reasonable parties, of the refusal edy might be either at the time.” brought might have forward remedy, which recognize that added). (first emphasis at 419 S.W.2d instance the first redressable in likely be to be thus seems in Stemler error certiorari writ of for a through petition gener- formulation following Newman's Court, or instead States United noting without judicata of res al rule having no inadequacy of narrow the more How- claim-splitting. against rule additional remedy. providing law resolved, promulgated to be law is tangle of case ever this Falls, 74 F.3d Chagrin Village Kruse erro- Stemler’s likely that even under seems 1996). Cir. 698-700 Kentucky’s res reading of neous England named v. for Louisiana gardless State ripen need under Wil Examiners, Board Medical County, liamson closer examination of (1964), L.Ed.2d these cases requires rеveals none litigate does not them in the state preclusion claim where, apply here, as courts, preclusion claim will operate plaintiffs have made an England reserva bar federal-court action. England tion of their federal claims. In Wilkinson concerned an action originally filed in the Pitkin Board County Com court, federal district which had invoked missioners, (10th 142 F.3d Cir.1998), Pullman abstention refusing to hear the the court noted first that the “plaintiffs claim. After the state courts rendered asserted federal claims the state court decision plaintiffs, adverse to the which proceedings, which fully adjudicat were resolved both the state-law issues that the ed.” Therefore, Id. at 1324. both issue district court’s abstention was directed to- preclusion and preclusion wards and the federal claims that had been operated to bar the plaintiffs claim in unreservedly submitted by plaintiffs to Wilkinson. The court then refused to de courts, plaintiffs state returned to cide possible “whether it is to reserve a federal court attempt to resuscitate claim, or, so, if what must be done their action. 375 U.S. at 84 to claim, reserve such a at because no time S.Ct. 461. The district court granted de- did plaintiffs attempt to do so.” Id. at fendants’ motion to dismiss on the basis of 1324-25. In Palomar v. Mobilehome Park judicata. res Court re- Marcos, Ass’n San versed, noting, “There are fundamental ob- (9th Cir.1993), again, plaintiff had jections any conclusion that a litigant asserted its federal claims in court, state who properly has invoked the attempt no at reservation was made. of a District Federal Court to consider Finally, in Peduto v. City North Wild federal constitutional claims can be com- wood, (3d 878 F.2d Cir.1989), pelled, without his consent and through no plaintiffs their asserted federal claims in own, fault of to accept his instead a state and again made no attempt to court’s of those determination claims.” Id. reserve their 726-27, claims. Id. at 729 n. at party may “[A] readi- 5. See also Rainey Bros. Constr. Co. v. ly any forestall conclusion that he Memphis & Shelby County Bd. Adjust elected to return to the District Court ment, 967 F.Supp. 1004 n. 5 ... making on the state record the (W.D.Tenn.1997) (res judicata applies ‘reservation to disposition of the entire plaintiff where brought federal claims in case the state courts’.... When the court; plaintiff because made no res made, reservation has been ... his right to ervation, court “expressly declines whether return will in all events preserved.” Id. such a reservation effective.”), would be 421-22, (citations omitted). 84 S.Ct. 461 aff'd, (6th 1999 WL 220128 Apr.5, Cir. Some courts have held that 1999). state court for the sole purpose of ripening his claims under Williamson County’s sec- Indeed, the Ninth Circuit in cases since prong ond is in state court involuntarily, Palomar has indicated ‍‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌​‌​​​‌‌‌‌‌‌‌​‌​​​​‌​‌​​​​‌‌‌‍that the reach of can therefore make an “England res- case be confined to preclu- issue ervation” his federal takings claims sion, rather than preclusion, where a federal disposition. reservation has been made. See San

While Kentucky cites three cases for the Remo Francisco, Hotel v. San proposition that applies (“The re City does claim under takings Wil sary ripen to England plaintiffs’ dispute not v. Conn. County. See Santini the doc liamson to avoid sufficient reservation Serv., F.3d 342 Mgmt. Waste preclu Hazardous issue but preclusion” of claim trine Cir.2003). v. (2d Barnes See also County, 130 King v. Maori applies); still sion Cir.1988) (6th Cir.1997) (reser McDowell, 732 F.2d (9th 848 1125, 1130 F.3d filing before court of state operation who files (party preventing possible, is vation claims, enjoys court, splitting Coun in federal Hood River Dodd v. judicata);8 res (9th judicata res even from protection England Cir. I], F.3d ty [Dodd reservation);9 v. Wicker to explicit by 1995) consent defendants without (implicit (6th Educ., Cir. 826 F.2d and reservation Bd. claim-splitting of court subse 1987) claim in state who (party files to reserve sufficient courts absten determination; preclusion but before issue to quent federal federal England also indi to reser have entitled Other circuits tion order still applies). still can be vation). preclusion claim at least cated that reservation. England-style by an

barred authori weight of circuit-level The Rochester, 319 Kottschade allowing clearly in favor ty is therefore Cir.2003) (“The (8th 1038, 1041-42 F.3d in its reservation England-style DLX’s reservation England [an suggestion prevent action to Kentucky state-court the virtue judicata] has res prevent might preclu of claim the doctrine application premature is tempting,” but is logic and takings federal-court subsequent in its sion is action federal-court in an initial in hold sister circuits join our We action. Front County); Williamson unripe under England reservation a party’s ing (England reserva at 283 Royal, in a takings claims federal County in Williamson appropriate tion preclu to defeat suffice will action Mana v. Sarasota trap); Fields ripeness action. It federal subsequent in a sion 1299, 1306 Auth., F.2d Airport tee in this whether case unnecessary to decide (Williamson liti County (11th in San- holding Circuit’s not the Second general to exception for the “qualify gants inapplica is also preclusion that issue tini principles”). judicata ly applicable rule, the Ken because better ble far to so as gone has even Circuit Second any not decide did tucky Supreme preclusion does that issue explicitly hold recovery right DLX’s that affect issues has been a reservation where apply Therefore, the doe- claim. federal on its neces- litigation in the state-court made his federal Cir.1988), reserved not even had earlier possibly misread Maori seems "[b]y splitting his on holding that nei- in state precedent in claims Circuit Ninth applies, in actions and federal preclusion the state initiative nor ther issue own II, discharge, Dodd and Dodd Barnes Dodd I with stemming conflict from his direct County, F.3d v. Hood River that he very effect samе achieved Cir.1998). recent San Remo (9th The more England reservation.” made an had he that the indicate issue/claim case seems realm, Coun- Williamson where in the Ninth the law split will be preclusion judi- with res ripeness combined ty prong-two Circuit. tak- all federal bar otherwise law would cata of the district door ings from claimants precedent rebuts prior Circuit Sixth 9. This contemplated clearly not result court —a England reser- suggestion that concurrence's County sort Williamson the Court —this party a case where only applies in vation unwilling state court England to extension fol- in state court questions federal reserves grave unfair- necessary avoid litigants is abstention. lowing McDowell, ness. in Barnes trine of res does not bar DLX’s County Williamson itself concerned a claim.10 developer’s application for a construction

permit from the local planning commis- sion. In a predecessor in interest to E. Prong-One the plaintiff had a preliminary submitted Ripeness design commission, which ap- was above, County’s Williamson As noted proved; design was continuously reap- ripeness requirement first for federal reg- proved during development and construc- ulatory takings in claims federal court is tion, even after the laws zoning changed, that the state or local decisionmakers have through 1980. A final plan was submitted decision, made a final such that a federal 1980, disapproved which was by the court assessing whеther or not a taking Commission; change after a in ownership, has occurred can look to that decision in plans submitted, revised were which were assessing what can use be made of the also disapproved. These decisions were property. Williamson County, 473 U.S. at held not Court, to be final however, 186-91, 105 Kentucky S.Ct. 3108. vigor- because variances could sought be for “five ously asserts that DLX has adequately of the eight objections Commission’s demonstrated a final decision on part Id. at plan. 188, the” 105 S.Ct. 3108. Cabinet; DLX equally vigorously Until those variances sought were and re- asserts that in fact a final decision has jected, the takings claim yet was not ripe. been made. parties their focus atten- Term, The next applied Court tion on the amount of cover vertical re- ripeness requirement again MacDonald, quired by the DLX argues Cabinet: that Sommer & Yolo, Frates v. County the Cabinet is immovably 340, settled on a 250- 352, 106 S.Ct. 91 L.Ed.2d cover; foot vertical Kentucky argues (1986), holding that a developer who some amount of vertical cover between 110 had only submitted one proposal that had feet and 250 feet be acceptable rejected been did not ripe have a takings Cabinet. claim, “Rejection noting, of exceedingly ripeness: 10. One final note on We have rec with or even instead of their constitu- ognized past in the See, that res clearly e.g., tional claims. Lucas v. South. Car- inapрlicable as to claims unripe Council, that were at olina Coastal 505 U.S. prior the time a proceeding, see Katt (1992) (review- 120 L.Ed.2d 798 Dykhouse, (6th Cir.1992), ing takings state-court decision on federal might and this operate claim). seem to to save DLX’s question Our is whether or not the claims, federal see Buckles v. Kentucky Columbus Mun. state court would have heard DLX's Auth., 02-3286, Airport No. 2004 WL federal claim or it dismissed as un- Feb.23, 2004), *3 n. 1 Cir. ripe, this con and whether or not DLX’sfederal claim clusion misunderstands the ripe nature of ripe would have been in the Although ness. County speaks court is a question that adjudged must broadly in right terms of when the federal respect with to Kentucky ripeness law. It ripens, action prong-two ripeness does not appears only ripeness that the requirement necessarily operate litigation to bar the imposed by of a courts on federal federal claim in the state ripe courts because equivalent is one claims to William- ness governing is a doctrine justiciability County son prong-one ripeness. Spanish courts, pursuant Sanitation, to Article III or Cove Inc. v. Louisville-Jefferson prudential generally concerns. See Dist., County Erwin Sewer Metro. 72 S.W.3d Chemerinsky, 2.1, § § Federal Therefore, Jurisdiction (Ky.2002). DLX's if (3d ed.1999). 2.4 This is out borne ripe now, in federal court it plaintiffs number of where cases ripe assert feder state court the time of the state- al claims in the state contemporaneous courts litigation. ordinances, rеgulations, statutes, vant logi- does not plans development grandiose a arrived at has the decisionmaker will plans ambitious less imply cally respect with final determination reviews.” similarly unfavorable receive property, use of her applicant’s permit three 2561. But 9,n. Id. at will is one which determination that that decisions subsequent regu whether a court determine allow ripeness. found Williamson place. This circuit latory taking taken Council, Coastal Carolina v. South Lucas exception,” “futility recognized has also 3, 112 & n. to Palazzolo’s similar inis substance which Court, over (1992), the 120 L.Ed.2d not seek rule, need whereby governing dissent, that because held regulation where would from a variance permit that no body stipulated act”; exception and futile be an “idle unjusticia- not issued, claim was the been has “sub a where landowner only applies Suitum Coimty. In under Williamson ble application meaningful least one mitted at 520 Agency, Planning Regional v. Tahoe Bannum, City Inc. v. a variance.” for 1659, 137 L.Ed.2d 725, 117 S.Ct. U.S. (6th Cir. Louisville, require- the that (1997), noted the Court 1992) (internal quotation citations of dis- high degree to “responds ment omitted); Seguin also marks see characteristically possessed cretion 584, 587-88 Sterling Heights, softening strictures land boards use (refusing to decide whether adminis- they regulations general of the exists). futility 1659, in the 738, 117 S.Ct. ter,” at id. in- a for application its that holding argues that because DLX course of ver- 250 feet no discretion than case, hаd less agency providing permit stant futile, and be al- have been would would tical cover whether over ad- during the land, testimony exists elicited “no occasion points to use her to lowed re- from Cabinet require- hearing County’s ministrative applying (“Peterson”). ment,” viewer, Larry Final- Peterson Id. at testi- Peterson’s Island, that Kentucky responds U.S. v. Rhode in Palazzolo ly, that officer actually reveals mony 2448, 150 L.Ed.2d 606, 121 S.Ct. less willing approve to been taking might in a have regulatory (2001), finding addi- cover, if had submitted to vertical a landowner allow to refusal state’s It a move. such supporting tional data re- the Court property, wetlands develop Kentucky has that at first blush seems Council “while the that suggestion jected futility ar- argument this better fill of the to all effort rejected petitioner’s —DLX’s on a mischaracterization based gument wetlands, rejected proposal his and then examining testimony, and of Peterson’s acres, perhaps the wetland fill 11 of have he would that testimony reveals that instance) (for 5 acres fill application stip- application permit to a receptive been Id. approved.” have been would accompanied cover ulating less vertical so, doing data: additional proposals, rejection of both examined it, if that say, isn’t fair to Q. it is So and de- upon, relied grounds studying the pres- was connection your concern development would no that termined maximum fraсtures dome sure applications permit “Further permitted: permit no that fractures relief stress point.” this necessary to establish not were ac- have been than 250 feet less Thus, William- 121 S.Ct. 2448. Id. at ceptable? a factual ripeness prong-one son all rele- account determination, taking into

A. they Unless through demonstrated Commonwealth rendered more than one data, they given some other which were million tons of high quality coal unminea- do, opportunity ble,” 14), fractures J.A. at 7 (Comply deep my exists; weren’t that concerns wer- deny jurisdiction on based justified, en’t yes. attack factual inappropriate seems without further proceedings below. We therefore Q. But on you based the data that did choose to rely on Eleventh Amendment have? immunity in affirming the district court.11 A. Yes. Q. We all through have been that. The F. Immunity Eleventh Amendment you have, data that did including the Finally, Kentucky12 argues data that it that said most of the water moved sect; is immune from & surface, within suit under 100 feet of based on the Eleventh Amendment13 as 42 you have, the data that U.S.C. did is fair to § 1983 does abrogate say you immunity. would not approved Quern Jordan, permit 338-41, left a 240-foot vertical (1979) (reaf cover, 59 L.Ed.2d 358 it? isn’t firming Jordan, Edelman v. A. Yes. 1347, 94 (1974)). S.Ct. 39 L.Ed.2d 662 (Tr. J.A. at 359 of Hr’g). Admin. In its This is something of a mischaracterization brief, reply DLX argues previous that no of the applicable law; “[t]he barrier [is] requires case a to submit scientific not ... Eleventh Amendment immuni surveys finality found, before will be and ty.... The stopper § [is] that 1983 creаtes asserts that DLX could have proven no set remedy no against a State.” Arizonans of scientific facts that would have con- English Arizona, 520 U.S. for Official vinced the decisionmaker to allow DLX’s 43, 69, 117 S.Ct. 137 L.Ed.2d 170 permit. (1997). Treating DLX’s claim as a self- Because resolution question of this re- executing reverse claim, condemnation quires factual inquiry, question and the however, is we conclude that the Eleventh one on which district court not did grant Amendment’s of immunity protects pass, we decline to resolve this factual Kentucky from that claim as well. The question on appeal. Assuming all of Supreme Court explicitly stated that allegations DLX’s federal just its complaint compensation “is, ordinary like money true, to be namely, “The actions of the damages, a compensatory ... remedy [and 11.Although we that each defendant— n normally decline to dispute Cabinet, There is no 12. decide question Kentucky, the constitutional Secretary and Bick- —whether Eleventh ford—is "the state” purposes for the immunity protects Amendment of deter- a mining their susceptibility against to suit. federal claim in a fed eral question, court—-in favor of the factual "Eleventh immunity Amendment is an is- see, e.g., City Creek, Adams v. Battle of jurisdiction, sue of but the issue longer is no (6th Cir.2001) (citing Ashwan simply as question classified subject of mat- der v. Valley Authority, Tennessee 297 U.S. jurisdiction.” Roberts, ter Ernst v. 288, 347, (1936) 56 S.Ct. 80 L.Ed. 688 (6th Cir.2004). Therefore, a motion un- (Brandéis, J., concurring)), we believe 12(b)(1) der Rule subject dismiss for lack procedural posture that, case this matter mandates not be procedurally correct, subject rather but than all parties to that properly further liti raise this gation jurisdiction” "affirmative issue, defense to ultimately on irrelevant we is a citing motion to' "the Eleventh Amend- affirm ground. the district court this on *3, ment itself.” Id. at *15. of each of moreover, But closer examination relief,” and legal therefore] they are these authorities reveals taking seeks alleging suit a federal-court abrogating the states’ not concerned with rather se but per just compensation “not immunity in Amendment Eleventh ‍‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌​‌​​​‌‌‌‌‌‌‌​‌​​​​‌​‌​​​​‌‌‌‍denial for the unconstitutional damages court, the Fifth noting with Monterey v. compensation,” such just com requirement Amendment’s 687, 710-11, Dunes, 526 U.S. Monte Del provide forces the states pensation (1999); L.Ed.2d 882 119 S.Ct. courts. judicial remedy their own exception is therefore, Young the Ex Parte the avail mandates Constitution “[T]he points In response, inapplicable. ‘takings’ ability of effective remedies suggested who commentators taxes, for the coercive collection on dicta open,14relying remains question provide courts to accordingly requires cases, First in two remedies, immunity sovereign those ‘the Lutheran Church Evangelical English traditionally enjoy in their own States 304, 314, Angeles, 482 U.S. Los ” Hart & Wech notwithstanding.’ courts (1987), 96 L.Ed.2d 107 S.Ct. sler, (quoting Reich v. Col supra, at 379 at Monterey, City of lins, 106, 110, 115 (1999) J., (Kennedy, plurality (1994)). explicitly Reich L.Ed.2d 454 (“Even immunity sovereign if the opinion) remedy of а requirement holds vitality in cases where rationale retains trump taxes does for unconstitutional applicable, Fifth] [the cf immunity enjoy in sovereign States “the ”). See, Richard H. e.g. ... English First Amend under the Eleventh Fed- al., Hart & Wechsler’s Fallon et ment.” 523 U.S. System Federal and The eral Courts Fifth makes clear that the English First Wechsler], n. at 379 & &Hart [hereinafter Takings is a self-exe Amendment Clause Jackson, (4th ed.1996), The C. Vicki 32 sovereign notwithstanding cuting remedy, Amendment, Court, the Eleventh 9,n. 107 at 316 immunity. See 482 U.S. Yale Immunity, 98 Sovereign and State Therefore, a brought had DLX S.Ct. 2378. (1988); Thomas 1, nn. 115 & 453-54 L.J. claim in state with its state federal claim Merrill, Landscape Constitu- W. court, would have Kentucky courts 885, & L.Rev. 981 Property, claim, 86 likely tional Va. that federal had to hear , (2000); Vásquez, Manuel Carlos exhaustion as n. 351 not have could claim, hearing Immuni- the federal Eleventh Amendment prerequisite What is 146-47, 131, Casey, U.S. 1683, n. 119-21 Felder v. 487 1709 & see ty?, 106 Yale L.J. (1988), 2302, 123 101 L.Ed.2d (1997). 108 S.Ct. Young exception. As Ex case under the Parte argues in Arnett our decision 14. DLX also contention, (6th Cir.2002), ago long is bind "It was second Myers, v. 281 F.3d 552 for DLX's Amendment ing precedent that Eleventh the final a writ of error to review settled that against court, a Fifth is no bar to Amendment even when State judgment of a state court, Elev and that if the in federal a state successful party and is [defendant] is a formal prevent the Su does not enth Amendment not a suit within the inferior in the hearing such cases as Pa preme Court from McKesson meaning of the Amendment.” 606, 619-26, Island, 533 U.S. v. Rhode lazzolo Beverages & Tobac- Corp. v. Div. Alcoholic 2448, (2001), on L.Ed.2d 592 2238, 27, co, 18, 110 S.Ct. 496 U.S. courts, pre it does not from state certiorari (1990) (quoting Oil Co. v. General L.Ed.2d 17 against a state. vent a suit in the district 475, 211, 233, Crain, 28 S.Ct. In Ar- arguments lack merit. Both of these J., (al- (1908) (Harlan, concurring)) L.Ed. nett, clearly only sought declara plaintiffs original). teration in relief, allowing the tory injunctive thus powerless remedy courts, court is to hear it. See but this its own notwith SDDS, standing sovereign immunity. See Kenedy Marie Stella Mem’l John G. & Dakota, 1, Inc. v. South 650 N.W.2d 8-9 (5th Mauro, 21 F.3d Found. v. (S.D.2002) (“South sovereign Dakota’s im (Eleventh Cir.1994) Amendment bars munity is not a bar Fifth SDDS’s Fifth inverse condemnation Amendment claim.”); Boise Cas court); brought federal district Corp. Oregon, cade v. 164 Or.App. Dep’t Transp., Robinson v. Ga. (1999) P.2d 565-69 (relying on First (11th (same); Brough F.2d 637 English in holding that “at least some Gorge ton River Lumber Co. Columbia against constitutional claims are actionable Comm’n, (9th 975 F.2d 618-20 Cir. state, even without congres a waiver or 1992) (same); Corp. Citadel v. Puerto abrogation sional of sovereign immunity, Auth., Highway Rico 695 F.2d 33 n. 4 due to the nature of the constitutional (1st Cir.1982) (same); Illinois, Garrett v. involved”). provision Manning But see Cir.1980) Mining 1040-41 & Energy, Minerals Div. Minerals, & Natural Res. Dep’t, 135 N.M. (takings claim filed 487, 90 P.3d 506 (Ct.App.2004) (rejecting against the state barred Eleventh Cascade), granted, Boise cert. 135 N.M. Amendment). (2004). 565, 92 P.3d 11 Maine, Although Alden v. 144 L.Ed.2d 636 III. CONCLUSION (1999), might seem to foreclose the re Kentucky enjoys Because sovereign im- quirement susceptible that states be to suit munity in the federal courts from DLX’s claims, in their own courts on takings claim, the district court close reading of Alden reveals that was correct to dismiss the DLX’s com- present no bar to such a claim. In plaint for jurisdiction. want of judg-

Alden, the Court held “that the pow ment of the district court is AF- therefore delegated ers to Congress under Article I FIRMED. of the United States Constitution do not power

include the subject nonconsenting to BALDOCK, Circuit Judge, concurring. private States to damages suits for in state I respectfully concur in the Court’s courts.” Id. at 119 S.Ct. 2240. The judgment only. Although dismissal the Alden specifically preserved Court Reich’s Court’s Eleventh Amendment analysis ap- promise of a remedy, noting, state-court sound, pears in my opinion we need not “The obligation arises from the Constitu reach the Eleventh question. itself; tion speak Reich does not Rather, Kentucky Supreme Court’s de- power Congress subject to States to cision implicates the Rooker-Feldman doc- suits in their own courts.” Id. at thereby trine precluding necessity Thus, S.Ct. 2240. where the Constitution resolving myriad of issues raised in requires particular remedy, such as alternative, this case. In the because the through the Due Process Clause for the “England-reservsdion” inappli- doctrine is Reich, tax monies at issue in through or cable, bars DLX’s federal tak- Takings Clause as indicated First ings claim. I will discuss each issue in English, the state is provide turn.

I. takings ripe ensure DLX’s claim was review, the district like Ken- doctrine, the Rooker-Feldman Under Court, tucky Supreme applied the Su- jurisdic- courts do not have lower federal preme two-prong ripeness Court’s test decisions; only court tion to review state Williamson, from Williamson. Under ju- Supreme States Court the United takings ripe Fifth Amendment claim is not judgments. to correct state court risdiction (1) government entity for review until Co., Fidelity Trust 263 U.S. See Rooker charged implementing regulations with 415-16, 68 L.Ed. 362 S.Ct. a final an inflicting has reached decision (1923); Ap- District Columbia Court of (2) actual, if injury, ‍‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌​‌​​​‌‌‌‌‌‌‌​‌​​​​‌​‌​​​​‌‌‌‍concrete a State Feldman, 462, 476, 103 460 U.S. peals provides adequate procedure an for seek- (1983).1 The 75 L.Ed.2d 206 ing just compensation, property owner deprives doctrine lower Rooker-Feldman procedure has used the and been denied engage courts of just 193-95, compensation. 473 U.S. at of state court decisions appellate review ripeness test is con- S.Ct. 3108. adjudicate claims that are “inex- junctive: prongs both must be satisfied. with a state court tricably intertwined” Accordingly, the district court first Novelties, Inc. v. judgment. See Peterson sought to determine whether a final deci- Berkley, 305 F.3d actual, inflicting injury sion an concrete Cir.2002). “inextricably A federal claim is prong existed under one. The district judgment intertwined” with a state court indicated, however, a reading court close when the federal claim succeeds Kentucky Supreme opinion re- wrongly the state court the extent already vealed that the court had decided it. See Pennzoil decided the issues before prong one and determined no Inc., 1, 25, Texaco, Co. v. decision, injury final thus no existed. (1987) (Marshall, 95 L.Ed.2d Inc., In at 626-27. See S.W.3d J., concurring); Anderson v. Charter my district opinion, properly Township Ypsilanti, opin- read the Court’s (6th Cir.2001). Inc., DLX, Kentucky Supreme In ion. case, this DLX’s federal Court dismissed DLX’s “inextricably intertwined” with the Ken subject jurisdiction. matter for lack of tucky judgment. Specifically, court reasoned the state id. at 627. The Kentucky Supreme Court dismissed final, yet arrived at a agency had not ju claim for want of DLX’s state inflicting injury be- position definitive application on its of feder risdiction based cause DLX failed to exhaust its adminis- law; set forth namely, al the standards trative remedies. See id. County Reg'l Planning upon the William- Supreme Court relied Bank, v. Hamilton 473 U.S. that no

Comm’n decision to reach its conclusion son (1985). inflicting injury L.Ed.2d 126 See an existed. 105 S.Ct. final decision Inc., DLX, Kentucky Supreme S.W.3d See id. at 626-27. The Commonwealth that “until a statute has (Ky.2001). explained DLX then filed a fed Court no unconstitu- applied, in To there can be takings claim district court. been eral Feldman, at 484 n. 103 S.Ct. Supreme jurisdiction 460 U.S. 1. The Court’s lack failing Supreme judg- ("By to raise his claims in state Kentucky Court's review the right plaintiff may to obtain court a forfeit his in case as a result of DLX’s failure ment this any fed- the decision in in state court is not review of state-court to raise its federal claims court.”). eral application to the of Rooker-Feldman. fatal satisfy ... it application prong. [and] tional is the admin- order to first Williamson’s the Kentucky Supreme ap- action which determines ex- the istrative While Court tent, any, injury.” pears commingled if of the constitutional tо have two distinct doc- thereafter, Immediately (i.e., finality), at 626. trines Id. exhaustion and see Williamson, Supreme court noted United States at “[t]he 3108,1 agree addressed this same issue [Wil- Court nevertheless with the district added). (emphasis Kentucky Id. court’s liamson].” conclusion Su- quoted prong court then Williamson’s first preme implicates Court’s decision length: at Rooker-Feldman doctrine because the Kentucky Supreme Court decided Wil- taking reluctance to examine claims

Our prong liamson one and indicated it until such a decision has lacked been final jurisdiction compelled by very over DLX’s made nature of based on the lack inquiry required by the Just Com- final decision.2 See DLX, Inc., 42 pensation Although the at ques- Clause. S.W.3d 626-27. The dis- taking tion what constitutes a trict court thus would have had reapply purposes of the Fifth Amendment has Kentucky Williamson and conclude the proved problem to be a Supreme considerable “got wrong,” see difficulty, Anderson, ... consistently the Court proceed any 266 F.3d at among indicated that par- the factors of analysis. words, further in its In other significance ticular inquiry are the under prong, Williamson’s first the dis- impact economic of the challenged action trict court to determine and the extent to which it interferes imposing injury whether a final decision with reasonable investment-backed ex- Court, existed. The pectations .... simply Those factors can- however, already had determined no such not be evaluated until the administrative injury Thus, decision or had occurred. agency final, has arrived at a definitive only way DLX could assert a successful position regarding apply how it will claim was for the district regulations at issue to particular contrary rule question. land in Supreme Court. Rooker-Feldman bars such federal review of Williamson, judg- state court (quoting Id. 190- 3108) added) ments. (in- (emphasis omitted). ternal quotation and citation The Court this attempts case to avoid The district considering after Rooker-Feldman distinguishing be- Kentucky Supreme analysis, Court’s rea- tween DLX’s state' and sonably concluded ap- Rooker-Feldman claims. Op. See Court’s at 8. The Court’s plied. The district court reasoned it analysis me, however, persuade does not have to review Kentucky Supreme because the claims indistinguishable. are Anderson, Court’s conclusion that DLX did not have See (holding F.3d at 495 decision, a final and hold the opposite, Rooker-Feldman barred be- correctly The Court in this case purpose notes that ment. The of Rooker-Feldman is to Kentucky Supreme preclude Court based its hold- telling lower federal courts from ing on the failure to exhaust they administrative state courts conducted an incorrect anal- remedies, DLX,Inc., see ysis S.W.3d at wrong or reached the conclusion. See Servs., component exhaustion is "not a Planning of a v. Medical Gottfried 326, takings (6th Cir.1998) federаl Op. claim.” See (noting only Court's 8. the Su- Kentucky Supreme That preme the Court Court has to correct state Williamson, however, misapplied judgments); is of no § mo- court see also 28 U.S.C. 1257. tak II. of the state requirements the cause from the indistinguishable were

ings clause issue, I Rooker-Feldman Aside from the Fifth Amendment of the requirements judicata anal disagree with the Court’s res Clause). Anderson, little, if As in Takings application “England ysis and between difference exists any, substantive Op. at doctrine. See Court’s reservation” Kentucky Takings the requirements notes, DLX correctly ll.3 As the Court § and the Fifth Clause, Ky. see Const. in takings its federal did not raise in this case. Takings Clause Instead, DLX court. “reserved” its state fact, Kentucky Supreme Court has In complaint federal claim its state in precedent upon Supreme Court relied adjudication in court. See id. later federal Takings Fifth Amendment terpreting the judicata normally pro bars such at 4. Res constitutes determine what Clause to Thames, tactics. See Donovan v. cedural Kentucky law. See Comm taking under (“Under Lumber Coal and v. Stearns onwealth law, judicata, pre or claim More Co., (Ky.1984). 678 S.W.2d clusion, may preclude entire be used over, notes a state in this case the Court brought or should have claims that were claim are takings claim and federal action.”) (emphasis in a brought prior been pre of claim nearly purposes identical for omitted). added) (internal citation The 5; n. Op. at 13 law. See Court’s clusion Court, however, purport concludes DLX’s constitution (noting at 14 state see also id. prin proper ed reservation was under substantially” “overlap al England v. Louisiana ciples established claim). The Court with federal Exam’r, Bd. Med. State like Rooker-Feldman would also concedes (1964). I dis 11 L.Ed.2d Kentucky Supreme if Court ly apply expands Eng- agree because the Court merits of DLX’s had reached the beyond its in doctrine Zcmd-reservation In at 9 n. 2. takings claim. See id. scope. tended end, allega DLX’s crux of this case is initially plaintiffs In England, injury requiring taking tion of one and one enjoin of a stat- sought application The Su just compensation. in federal court. The district ute determined, already under Court preme to allow the state courts abstained one, no final decision prong interpret the statute. See opportunity existed, thus, taking injury had no U.S. at 84 S.Ct. England, 375 court to hold For the district occurred. commenced state plaintiffs The thereafter Rooker-Feldman. otherwise would violate Upon but were unsuccessful. proceedings, case, sum, should my opinion, plaintiffs returning to federal claims; dismissed under the Rooker-Feldman howev- their constitutional revived er, of the Rooker- were purpose argued the claims doctrine. the defendant duplicative pre- avoid held doctrine is to precluded. Feldman plaintiffs’ federal courts proscribe lower clusion did not bar appeals Here, remitted to state party court decisions. claims because a review of state right has the an abstention order procedures itself of state availed id. at judi- to federal court. See bite at the to return cannot now take a second Accordingly, Eng- under the court. apple cial claim and same. the Court refers to both 3. Because judicata,” I do the preclusion as "res issue doctrine, a plaintiff a who federal court’s erroneous construction

land-reservation law. involuntarily of state in state finds himself order court’s abstention due to a district added). (emphasis procedural posture The circumstances, reserve his may, in certain significantly Eng- of this case differs from adjudication in for later fed- federal issues Here, initially file its land. did 421-22, id. at eral court. See takings claim in federal but first Therefore, claim in state court. filed its doctrine thus England-reservakion The to opportunity federal court never had only party in a case where a re applies thus, England-reservation abstain and in state court fol questions serves fedéral inapplicable. doctrine id. at lowing federal court abstention. See unnecessarily attempts The Court to ex- 461; Wright, Miller see also England-reservation doctrine pand be- Federal Practice and Proce Cooper, & yond scope of federal abstention § 2d 4471.1 at 247 dure: Jurisdiction Court, (2002) According “given this case. (noting England- core of the “[t]he County’s ripeness require- rule remains unscathed. A reservation ments, DLX could not have chosen to file clearly ques reserves party who federal first; therefore, federal-court action ... following ‘Pullman’ abstention tions County’s ripe- interaction Williamson can to federal court for decision of return requirements the doctrine of issues, ness preclusion.”). free of federal claim preclusion possibly operate could to Moreover, England-reser in order for the every keep regulatory-takings claimant apply, vation doctrine to the federal action Op. out of federal at 14. court.” Court’s brought “affording must be the feder first England then applies Court reser- opportunity al court the to decide whether and, vation doctrine claim preclu- avoid A plaintiff go to abstain. who elects to sion, weight of “[t]he declares circuit-level likely precluded state court first is to be authority clearly is therefore in favor of action, a second if an from federal even allowing England-style DLX’s reserva- express attempted.” Wright reservation is Miller, tion.” Id. at 18. § supra & 4471.1 at 250. In Allen McCurry, 101-02 n. begin, To the Court’s conclusion that (1980), 66 L.Ed.2d Su “every regulatory takings claimant” would preme explained why an England- be excluded from federal court is not en- inapplicable reservation is first cases tirely Takings accurate. claimants who filed in state court than rather properly raise their federal claims in state court: proceedings may seek in the review United holding England depended en- States Court if dissatisfied with tirely on this pur- they Court’s view of the the results obtain from court. pose Next, § abstention such case: See 28 U.S.C. courts have rejected Where a properly generally England- invokes feder- use of the al-court in the instance reservation doctrine in context first claim, on a many the federal court has courts have declined to create duty jurisdiction. to accept exception rendering Ab- stention postpone, estoppel inapplicable serve collateral in Fifth abdicate, jurisdiction, rather than to Wright cases. See & Miller, purpose cases); § since its is to determine wheth- supra (citing 4471.1at 253 er question resolution the federal see also Santini v. Connecticut Hazardous Serv., (2d necessary, Mgmt. even or to obviate the risk of Waste cases). Cir.2003) (citing Discussing opportunity relitigate this stricted to an issue in issue, already reasons: decided state court Wright simply & Miller be- cause the issue arose in a proceeding state filing a ac- question The whether state in which he would rather not have been opportunity tion first waives the to re- in engaged at all.” adju- for federal questions serve federal in is tested situations which dication Perhaps importantly, most allowing a than dоctrine re- rules other abstention claimant to reserve its federal plaintiff go first to state court. quire claim in state proceedings undermines the A provided clear illustration is very purpose ripeness of Williamson’s re- regulatory rule that a tak- [Williamson ] quirements. ripeness The requirements until the ing ripe is not for federal claims stems from both judicial has exhausted available state Article III and the Fifth Amendment. See compensation Attempted remedies. res- Williamson, 186-87, 190-91, 473 U.S. at of federal issues has been re- ervation 3108; Myers, Arnett v. 281 F.3d jected, upon, perhaps (6th least frowned Cir.2002). 552, 562 ripeness The re- purpose ripeness because the of this quirements are of constitutional dimension provide doctrine is to state courts an they because assist in the determination of regulato- opportunity supervise injury whether an has for pur- occurred ry practices. controversy of Article Ill’s poses case or Arnett, requirement. See 281 F.3d at 562. 253; § supra 4471.1 at see also Wil Further, the Fifth Amendment is a self- Bd., 142 County kinson v. Pitkin F.3d in executing remedy state courts and state (10th Cir.1998) 1319, (noting n. 4 compensation procedures are constitution- ripeness requirement concern that ally required. English Evangel- See First in “may, actuality, always almost result ical Lutheran Church v. Los claims, regardless preclusion federal Angeles, 482 n. permitted”); whether reservation is Palo (1987). upon 96 L.Ed.2d 250 Based City mar Mobilehome Park Ass’n v. precepts, these anteсedent Williamson’s Marcos, San 989 F.2d Cir. ripeness compels test that a state court 1993) that mere fact that (explaining Wil ruling constitutional be- make federal requires takings liamson claimants to first very purpose compensa- cause the of state prevent in state court file “does procedures tion is to address the federal judicata from barring doctrine of res sub question. Allowing constitutional the res- action”); sequent federal Peduto v. question in state ervation federal (3d Wildwood, N. Cir. role, undermine the as the 1989) (same); Island, v. Rhode Griffin described, of state Supreme Court (1st Cir.1985) (explain 360 n. 1 adjudicating courts ing England-reservation inapplicable explained: claims. As commentator one “[sjection and that 1983 does not override suggested preclusion by allowing plaintiffs law Some federal courts right can proceed judgment property to first in state courts owner reserve adjudi in a federal litigate and then turn to federal courts for issues claims.”). Allen, England forum under the doctrine of cation of federal State Board Medical Ex- U.S. at Louisiana aminers, is, short, ought not to work. simply: stated “There this Congress England doctrine exists to further no reason to believe § of federal abstention.... [through provide purpose intended to 1983] doctrine, however, apply does not person claiming right a federal unre- Fifth Amendment context WARNER, Petitioner, O’Neill Supreme which, construed as Court, courts to rule оn requires state v. grounds. constitutional ASHCROFT, Respondent. et al. John Roberts, E. Amendment Thomas Fifth Court, 24 Urb. Taking in Federal Claims No. 02-3676. (1992). ‍‌‌‌‌‌​‌​​​‌​‌​‌​​​‌‌​‌​​​‌‌‌‌‌‌‌​‌​​​​‌​‌​​​​‌‌‌‍Law. Appeals, of United States Court sum, applying the Court erred Sixth Circuit. in this case. England-reservation doctrine view, my simply cannot make plaintiff, A April in non-abstention England-reservation Instead, judicata applies bar cases. generally pre claim.

DLX’s federal We adjudicat capable courts are of

sume state along state claims.

ing federal claims with Migra v. Warren School Dist. Bd.

See Educ., 75, 85-86, 104 S.Ct. Donovan, (1984); also 79 L.Ed.2d 56 see Moreover,

105 F.3d are clearly explained

Court has states adjudicate claims be

cause, just provides compensa if a state

tion, may resort to a federal forum Williamson,

avoided. 473 U.S. at See

105 S.Ct. 3108.4 foregoing, respectfully

Based on the I judgment

concur the Court’s

dismissal. concluding 4. One final note: After Rooker- doctrine and the Eleventh Amendment both bases; however, apply, jurisdictional ripeness Feldman and res do not engages ripeness Court in a Williamson anal- cannot be waived. See Florida Ass’n Re- Facilities, ysis prong Dep’t but does not resolve hab. Inc. Florida Health Serv., Op. one. Court's at 22. I do believe and Rehab. 1227 n. 14 (11th Cir.2000). Thus, luxury sidestepping ripe- we have the we decide should notes, ripeness ripe addressing ness issue. As is a whether a claim is before justiciability partially (noting doctrine rooted in Arti- Amendment. [a]l- Eleventh See id. controversy requirement. though cle case Ill's described the issue of [courts have] Consequent- immunity See id. at 19 n. 105 S.Ct. 3108. Eleventh as itself one ly, jurisdictional subject jurisdiction, the doctrine raises threshold matter "mootness like standing ripeness-raises issues that not be assumed. See Steel Co. an even more ba- Env't., 83, 94, question a Better sic that cannot be Citizens for (1998). goes very 140 L.Ed.2d 210 Fur- waived and heart of the 'case ther, poten- controversy' requirement whether the Court can dismiss a of Article III" first.) added) tially unripe (emphasis claim under the Eleventh Amend- that must be decided (internal omitted). ripeness raises a ment difficult issue. The citations

Case Details

Case Name: Dlx, Inc. v. Commonwealth of Kentucky

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 28, 2004

Citation: 381 F.3d 511

Docket Number: 03-5528

Court Abbreviation: 6th Cir.