SKATEMORE, INC., а Michigan corporation dba Roll Haven Skating Center; SLIM’S REC, INC., a Michigan corporation dba Spartan West Bowling Center/Beamers Restaurant; MR. K ENTERPRISES, INC., a Michigan corporation dba Royal Scot Golf & Bowl; M.B. AND D. LLC, a Michigan limited liability company dba Fremont Lanes; R2M, LLC, a Michigan limited liability company dba Spectrum Lanes & Woody’s Press Box, Plaintiffs-Appellants, v. GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan; ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services; MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, a Michigan Administrative Agency, Defendants-Appellees.
No. 21-2985
United States Court of Appeals for the Sixth Circuit
July 19, 2022
22a0159p.06
CLAY, GRIFFIN and WHITE, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: April 27, 2022.
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:21-cv-00066—Hala Y. Jarbou, District Judge.
COUNSEL
ARGUED: Stephen P. Kallman, KALLMAN LEGAL GROUP, PLLC, Lansing, Michigan, for Appellants. Daniel J. Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Stephen P. Kallman, David A. Kallman, KALLMAN LEGAL GROUP, PLLC, Lansing, Michigan, for Appellants. Daniel J. Ping, Darrin F. Fowler, Kyla Barranco, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
OPINION
CLAY, Circuit Judge. Plaintiffs Skatemore, Inc., Slim’s Rec, Inc., Mr. K Enterprises, Inc., M.B. and D. LLC, and R2M, LLC, operators of bowling alleys and roller-skating rinks in Michigan, sued Michigan Governor Gretchen Whitmer, former Michigan Department of Health and Human Services (“MDHHS”) Director Robert Gordon, and the MDHHS alleging that various orders limiting the use of Plaintiffs’ properties early in the COVID-19 pandemic constituted an unconstitutional taking in violation of the
I. BACKGROUND
A. Factual Background
In late 2019 and early 2020, SARS-CoV-2—the virus responsible for COVID-19—began spreading around the world. This novel strain of a coronavirus caused an alarming uptick in hospitalizations and deaths. Early research found that the virus spreads through respiratory droplets. To mitigate the spread of the virus, individuals were promptly and repeatedly advised to avoid close indoor contact.
On March 10, 2020, Michigan Governor Grеtchen Whitmer announced that state public health officials had detected the first known cases of COVID-19 in the state. That same day, Governor Whitmer
Over the next several months, Governor Whitmer extended the closure of bowling alleys for a few weeks at a time. See EO Nos. 2020-20 (Mar. 21, 2020), 2020-43 (Apr. 15, 2020), 2020-69 (May 1, 2020), 2020-100 (May 26, 2020). However, the piecemeal extension of bowling alley and roller-skating rink closures ended on June 1, 2020, when Governor Whitmer ordered the affected businesses to indefinitely limit their operations. See EO Nos. 2020-110 (June 1, 2020), 2020-160 (July 30, 2020), 2020-176 (Sept. 3, 2020), 2020-183 (Sept. 25, 2020). Instead of identifying a specific expiration date, the EOs issued on or after June 1, 2020, simply identified factors the governor would consider when deciding whether to alter or end the restrictions. Beginning on September 3, 2020, bowling alleys and roller rinks were permitted to “serv[e] as a venue for organized sports.” EO No. 2020-176. In several of the EOs, Governor Whitmer specifically noted that Michigan courts were reviewing the legality of the EOs. See EO Nos. 2020-110, 2020-160, 2020-176, 2020-183.
On October 2, 2020, the Michigan Supreme Court held that Governor Whitmer lacked the power to issue emergency orders after April 30, 2020. In re Certified Questions from U.S. Dist. Ct., W. Dist. of Mich., S. Div., 958 N.W.2d 1, 11 (Mich. 2020). On November 15, 2020, MDHHS Director Robert Gordon2 issued an order pursuant to his independent authority under
B. Procedural Background
On January 20, 2021, Plaintiffs commenced this aсtion against Governor Whitmer, Director Gordon, both in their official capacities, and MDHHS. They alleged that the forced “closure” of their bowling alleys and roller-skating rinks from March 16, 2020 to October 2, 2020 and November 18, 2020 to December 21, 2020 were unconstitutional
Defendants jointly moved to dismiss the complaint. They first argued that the district court lacked jurisdiction because they were entitled to
abrogated state sovereign immunity with respect to takings claims because the
Defendants also argued that Plaintiffs had failed to state a claim because the EOs did not amount to a taking. See
In a combined ordеr, the district court granted Defendants’ motion to dismiss and denied Plaintiffs’ motion to amend the complaint. The district court first held that Defendants were entitled to immunity. It held that Knick did not overrule Sixth Circuit precedent, which had established that the Takings Clause is not an exception to
II. DISCUSSION
A. Eleventh Amendment Immunity
i. Standard of Review
We review dismissals for lack of subject matter jurisdiction de novo. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015). The Court must construe the complaint in the light most favorable to the Plaintiffs; however, the Court neеd “not presume the truth of factual
ii. Analysis
Upon gaining independence, the several states “considered themselves fully sovereign nations.” Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493 (2019). This sovereignty was not only in name; the states inherited “all the rights and powers of sovereign states.” Id. (quoting McIlvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209, 212 (1808)). Among the rights states inherited as newly sovereign nations was “immunity from private suits.” Id. (quoting Fed. Mar. Comm’n v. S.C. Ports Auth., 535 U.S. 743, 751–52 (2002)).
The states’ unencumbered sovereignty did not last long. By ratifying the Constitution, the states ceded some of the rights they enjoyed under intеrnational law to the newly created federal government. See id. at 1495. One right surrendered to the federal government was states’ absolute immunity from certain suits. In certain actions, such as when one state sues another state,
The scope of the states’ consent to federal court jurisdiction was first tested in Chisholm v. Georgia, 2 Dall. 419 (1793). In that case, the Supreme Court considered the extent to which state immunity from private suits survived the ratification of the Constitution. The 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.” Ladd v. Marchbanks,
971 F.3d 574, 577–78 (6th Cir. 2020) (quoting Chisholm, 2 Dall. at 420). The states immediately and furiously rejected Chisholm. Hyatt, 139 S. Ct. at 1495–96. Within months, Congress proposed and passed the
The
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.
While
1. Ex parte Young
Regarding the exception set forth in Ex parte Young, Plaintiffs find no relief. Ex parte Young permits a private party to seek prospective injunctive relief against state officials in their official capacity before those officials violate the plaintiff’s federal constitutional or statutory rights. Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 417 (6th Cir. 2019). In the present case, Plaintiffs are seeking retroactive compensatory damages, not prospective injunctive relief. Accordingly, Ex parte Young does not apply here. See Quern v. Jordan, 440 U.S. 332, 338 (1979) (quoting Edelman v. Jordan, 415 U.S. 651, 677 (1974)) (“[A] federal cоurt’s remedial power . . . may not include a retroactive award which requires the payment of funds from the state treasury”); see also Boler, 865 F.3d at 412 (stating that Ex parte Young “does not extend to retroactive relief or claims for money damages.”).
2. Abrogation
Plaintiffs argue that the
A property owner has a clаim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it . . . And the property owner may sue the government at that time in federal court for the “deprivation” of a right “secured by the Constitution.”
Knick, 139 S. Ct. at 2170 (quoting
In Knick, the petitioners challenged the Supreme Court’s holding in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Williamson County held that individuals did not suffer
In Ladd, the plaintiffs argued that Knick overruled earlier Sixth Circuit precedent and that the Takings Clause abrogated
Plaintiffs also argue that the
Accordingly, Plaintiffs’ case cannot be saved through the abrogation exception to
3. Consent / Waiver
Plaintiffs next rely on the third exception to
Amendments. Defendants respond relying on Ladd to argue that the Sixth Circuit has already denied a functionally identical argument. Plaintiffs reply that Ladd is not applicable to this argument because Ladd is an abrogation case.
Plaintiffs are correct in arguing that Ladd is technically an abrogation case. See Ladd, 971 F.3d at 579 (“[T]he Fifth Amendment’s Takings Clause does not abrogate sovereign immunity” (emphasis added)). Nevertheless, even if Ladd is not necessarily controlling in this appeal, we find its logic persuasive. To accept Plaintiffs’ argument that the states waived their sovereign immunity by ratifying the
Relying on the recent Supreme Court decision in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), Plaintiffs also argue that the states consented to federal court jurisdiction or waived their immunity to takings claims by ratifying the
commenced in federal court a condemnation action against New Jersey under
The Supreme Court held New Jersey could not invoke
PennEast is markedly different than the present case. In that case, PennEast, lawfully exercising the federal eminent domain power, sought to seize state-owned property. In a takings suit between the federal government and a state, it is reasonable to assume, as the Supreme Court did, that the “judicial Power of the United States” extends to such suits.
Nor can ratification of the
States implicitly consented at the founding.” (emphasis added)). There is no indication thаt at the time Michigan ratified the
4. Ultra Vires Action as an Exception to the Eleventh Amendment
In a final attempt to avoid
There are several problems with Plaintiffs’ argument. First, Governor Whitmer’s conduct can hardly be said to have been done without any authority. She issued the EOs in accordance with then-existing Michigan laws. Nearly seven months after she began issuing the EOs, the Michigan Supreme Court held that the laws on which she relied were an “unconstitutional delegation of legislative power to the executive.” In re Certified Questions, 958 N.W.2d at 24. Plaintiffs ask us to construe the Michigan Supreme Court’s holding as retroactively stripping Governor Whitmer of any authority she had; however, the opinion actually suggests the holding was merely prospective. See id. at 6, 31 (concluding that “the executive orders issued by the Governor in response to the
In sum, we hold that ratification of the
B. Motion to Amend
After Defendants moved to dismiss the complaint, Plaintiffs sought leave to amend their complaint to add claims against Governor Whitmer and Director Gordon in their personal
capacities.4 In the same order that the district court granted Defendants’ motion to dismiss for lack of subject-matter jurisdiction, the court also denied Plaintiffs’ motion to amend, finding that any amendment to the complaint would be futile.
i. Standard of Review
Typically, this Court reviews denials of motions for leave to amend for an abuse of discretion. U.S. ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399, 407 (6th Cir. 2016). However, when a motion to amend is denied because amendment would be “futile,” this Court reviews the district court’s decision de novo. Id.
ii. Analysis
In general, district courts “should freely give leave [to amend] when justice so requires.”
The district court held that amendment would be futile because even if Governor Whitmer and Director Gordon were sued in their personal capacities, the EOs could not amount to a taking. On appeal, Plaintiffs simply state that they seek to amend their complaint to clarify the damages they suffered, but they make no discernible argument as to why any amendment would not be futile. On the other hand, Defendants make two arguments in support of affirming the district court. They first argue that takings claims rеquire state action; and therefore, state officials may not be held liable in a personal capacity. Second, Defendants argue that even if
personal capacity suits are permissible, they would be entitled to qualified immunity. We need not decide whether personal capacity suits are permitted under the Takings Clause because even if we assume they are, Plaintiffs still lose under the doctrine of qualified immunity.
The doctrine of qualified immunity provides that “governmеnt officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “While the defendant ‘bears the burden of pleading’ a qualified immunity defense, ‘[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity.’” Palma v. Johns, 27 F.4th 419, 427 (6th Cir. 2022) (quoting Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017)) (brackets in original). In determining whether Defendants are entitled to qualifiеd immunity, we apply the well-established two-part inquiry: first, “do the facts alleged show that the officer’s conduct violated a constitutional right? Second, is the right clearly established?” Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1093 (6th Cir. 2019) (quoting Seales v. City of Detroit, 724 F. App’x 356, 359 (6th Cir. 2018)). We are free to consider these inquiries in any order. Godawa v. Byrd, 798 F.3d 457, 462–63 (6th Cir. 2015).
Assuming Plaintiffs alleged an unconstitutional taking, they have failed to show that the alleged constitutional violation was clearly established.5 The Supreme Court has cautioned courts “not to define clearly established law at a high level of generality.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). But courts also need not wait for the exact fact pаttern to occur before concluding that a right has been clearly established. Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.”). The question is “whether it would have been clear to a
reasonable offic[ial] that the alleged conduct was unlawful in the situation he confronted.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (internal quotation marks omitted).
Plaintiffs have not offered any argumentation as to why Defendants are not entitled to qualified immunity. Nor do they direct the Court tо any caselaw indicating that Defendants’ various orders violated a clearly established constitutional right. And for good reason: there is no clearly established precedent that pandemic-era regulations limiting the use of individuals’ commercial properties can constitute a
485 F. Supp. 3d 369 (W.D.N.Y., 2020); Elmsford Apartment Assocs., LLC v. Cuomo, 469 F. Supp. 3d 148 (S.D.N.Y. 2020), appeal dismissed, 860 F. App’x 215 (2d Cir. 2021) (mem. op.); Lebanon Valley Auto Racing Corp. v. Cuomo, 478 F. Supp. 3d 389 (N.D.N.Y., 2020); Savage v. Mills, 478 F. Supp. 3d 16 (D. Me., 2020); PCG-SP Venture I LLC v. Newsom, No. EDCV20-1138 JGB (KKx), 2020 WL 4344631 (C.D. Cal. June 23, 2020); McCarthy v. Cuomo, No. 20-CV-2124 (ARR), 2020 WL 3286530 (E.D.N.Y. June 18, 2020); Alsop v. DeSantis, No. 8:20-CV-1052-T-23SPF, 2020 WL 9071427 (M.D. Fla. Nov. 5, 2020); but see Heights Apartments, LLC v. Walz, 510 F. Supp. 3d 789 (D. Minn. 2020), rev’d, 30 F.4th 720 (8th Cir. 2022). Accordingly, even if Plaintiffs were permitted to amend their complaint, Defendants would be entitled to qualified immunity.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court.