Appellant's opening brief (8th Cir.) — Heights Apartments v. Walz

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No. 23-2686 
________________________ 
 
UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 
________________________ 
 
HEIGHTS APARTMENTS, LLC, 
 
Plaintiff – Appellant, 
 
v. 
 
TIM WALZ, in his official capacity as Governor of the State of Minnesota; 
KEITH ELLISON, in his individual and his official capacity as Attorney General 
of the State of Minnesota; and John Doe, 
 
Defendants – Appellees. 
_______________________________ 
 
On Appeal from the United States District Court 
for the District of Minnesota 
Honorable Nancy Ellen Brasel, District Judge 
_______________________________ 
 
APPELLANT’S OPENING BRIEF 
_______________________________ 
J. DAVID BREEMER 
 
 
 
MICHAEL KEMP 
Pacific Legal Foundation  
 
 
Aaron Ferguson Law 
555 Capitol Mall, Suite 1290 
 
 
2700 Snelling Avenue North 
Sacramento, California 95814  
 
Suite 460 
Telephone: (916) 419-7111 
 
 
Roseville, Minnesota 55113 
JBreemer@pacificlegal.org 
 
 
Telephone: (651) 493-0426 
Michael@aaronfergusonlaw.com 
Attorneys for Plaintiff – Appellant Heights Apartments, LLC 
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SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT 
 
This case raises an issue of considerable importance: Whether the self-
executing just compensation remedy for a taking, to which the state is subject under 
the Fourteenth Amendment, waives state sovereign immunity from a Fifth 
Amendment takings claim? This issue warrants oral argument, and Appellant hereby 
requests 20 minutes of oral argument. 
 
 
 
 
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CORPORATE DISCLOSURE STATEMENT 
 
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eighth Circuit Rule 
26.1A, Plaintiff – Appellant Heights Apartments, LLC, a limited liability company 
organized under the laws of Minnesota, hereby states that it has no parent companies, 
subsidiaries, or affiliates that have issued shares to the public. 
/s/ J. David Breemer  
 
J. DAVID BREEMER 
 
 
 
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TABLE OF CONTENTS 
 
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT ............ i 
CORPORATE DISCLOSURE STATEMENT ........................................................ ii 
TABLE OF AUTHORITIES ..................................................................................... v 
JURISDICTIONAL STATEMENT .......................................................................... 1 
STATEMENT OF THE ISSUE ................................................................................. 1 
INTRODUCTION ..................................................................................................... 1 
STATEMENT OF THE CASE .................................................................................. 3 
A. The COVID Eviction Orders ........................................................................ 3 
B. The Impact of the Eviction Orders on Heights’ Properties .......................... 5 
C. Prior Procedure .............................................................................................. 7 
STANDARD OF REVIEW ....................................................................................... 8 
SUMMARY OF THE ARGUMENT ........................................................................ 9 
ARGUMENT ........................................................................................................... 11 
AS INCORPORATED IN THE FOURTEENTH AMENDMENT,  
 
THE SELF-EXECUTING COMPENSATION REMEDY FOR  
 
A TAKING OVERRIDES SOVEREIGN IMMUNITY .................................... 11 
A. Background Principles ................................................................................ 11 
B. The Due Process Clause of the Fourteenth Amendment Applied  
 
the Just Compensation Requirement to the States and Abrogated  
 
Sovereign Immunity .................................................................................... 14 
C. Reich Has No Relevance to the Just Compensation Clause ....................... 17 
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CONCLUSION ........................................................................................................ 21 
CERTIFICATE OF COMPLIANCE ....................................................................... 22 
CERTIFICATE OF SERVICE ................................................................................ 23 
CERTIFICATE THAT DOCUMENT IS VIRUS FREE ........................................ 24 
 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Cases 
ABF Freight System, Inc. v. International Broth. of Teamsters, 
645 F.3d 954 (8th Cir. 2011) ................................................................................ 8 
Alden v. Maine, 
527 U.S. 706 (1999) ................................................................................ 12, 14–15 
Allen v. Cooper, 
555 F. Supp. 3d 226 (E.D.N.C. 2021) ...................................................... 3, 16–17 
Barron v. City of Baltimore, 
32 U.S. 243 (1833) .............................................................................................. 14 
Cedar Point Nursery v. Hassid, 
141 S. Ct. 2063 (2021) .................................................................................. 12–13 
Cent. Va. Cmty. College v. Katz, 
546 U.S. 356 (2006) ............................................................................................ 16 
Chicago, B. & Q.R. Co. v. City of Chicago, 
166 U.S. 226 (1897) ............................................................................................ 15 
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 
526 U.S. 687 (1999) .............................................................................................. 2 
Edelman v. Jordan, 
415 U.S. 651 (1974) ............................................................................................ 11 
EEE Minerals, LLC v. North Dakota, 
--- F.4th ---, 2023 WL 5600296 (8th Cir. 2023) ........................................... 10, 18 
Esposito v. S.C. Coastal Council, 
939 F.2d 165 (4th Cir. 1991) .............................................................................. 10 
Ex parte Virginia, 
100 U.S. 339 (1879) ............................................................................................ 15 
Ex parte Young, 
209 U.S. 123 (1908) ............................................................................................ 12 
Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 
454 U.S. 100 (1981) ............................................................................................ 19 
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First English Evangelical Lutheran Church of Glendale v.  
County of Los Angeles, 
482 U.S. 304 (1987) ..................................................................1–2, 10, 13, 17, 19 
Fitzpatrick v. Bitzer, 
427 U.S. 445 (1976) ............................................................................................ 16 
Ford Motor Co. v. Dep’t of Treasury of Ind., 
323 U.S. 459 (1945) ...................................................................................... 12, 18 
Hans v. Louisiana, 
134 U.S. 1 (1890) ................................................................................................ 12 
Heights Apartments, LLC v. Walz, 
30 F.4th 720 (8th Cir. 2022) ..................................................................... 3–5, 7–8 
Hess v. Port Auth. Trans-Hudson Corp., 
513 U.S. 30 (1994) .............................................................................................. 12 
In re Venoco LLC, 
998 F.3d 94 (3d Cir. 2021) ........................................................................... 15–16 
Jacobs v. United States, 
290 U.S. 13 (1933) .......................................................................................... 9, 14 
Knick v. Township of Scott, 
139 S. Ct. 2162 (2019) ..................................................... 1, 10–11, 13–14, 17–20 
Lingle v. Chevron U.S.A. Inc., 
544 U.S. 528 (2005) ...................................................................................... 18–19 
Lucas v. S.C. Coastal Council, 
505 U.S. 1003 (1992) .......................................................................................... 13 
McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 
496 U.S. 18 (1990) .............................................................................................. 17 
McKesson Corp. v. Islamic Republic of Iran, 
539 F.3d 485 (D.C. Cir. 2008) ............................................................................ 14 
Memphis & C. R. Co. v. Tennessee, 
101 U.S. 337 (1879) ............................................................................................ 16 
Milliken v. Bradley, 
433 U.S. 267 (1977) ............................................................................................ 12 
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Palazzolo v. Rhode Island, 
533 U.S. 606 (2001) ............................................................................................ 13 
PennEast Pipeline Co., LLC v. New Jersey, 
141 S. Ct. 2244 (2021) ........................................................................................ 16 
Phillips v. Washington Legal Foundation, 
524 U.S. 156 (1998) ............................................................................................ 13 
Reich v. Collins, 
513 U.S. 106 (1994) ................................................................................ 11, 17–20 
Seven Up Pete Venture v. Schweitzer, 
523 F.3d 948 (9th Cir. 2008) ................................................................................ 8 
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 
560 U.S. 702 (2010) ............................................................................................ 13 
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 
535 U.S. 302 (2002) ........................................................................................ 9, 15 
Tyler v. Hennepin Cnty., 
598 U.S. 631 (2023) ............................................................................................ 18 
United States v. Clarke, 
445 U.S. 253 (1980) .......................................................................... 13–14, 19–20 
United States v. Dickinson, 
331 U.S. 745 (1947) ............................................................................................ 20 
United States v. Miller, 
317 U.S. 369 (1943) ............................................................................................ 13 
Constitutions 
U.S. Const. amend. XIV, § 1 ............................................................................. 14–15 
U.S. Const. amend. XI ............................................................................................. 11 
Statutes 
28 U.S.C. § 1291 ........................................................................................................ 1 
28 U.S.C. § 1331 ........................................................................................................ 1 
28 U.S.C. § 1341 ...................................................................................................... 19 
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Act of June 29, 2021, 2021 Minn. Laws 1st Spec. Sess. Ch. 8, art. 5 ....................... 7 
Other Authority 
Berger, Eric, The Collision of the Takings and State Sovereign 
Immunity Doctrines, 63 Wash. & Lee L. Rev. 493 (2006) ................................ 10 
 
 
 
 
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JURISDICTIONAL STATEMENT 
 
This case involves federal constitutional issues. The district court had 
jurisdiction under 28 U.S.C. § 1331. The court issued a final judgment disposing of 
all claims on June 21, 2023. Appellant’s Appendix (App.) 111, R. Doc. 86 at 1. The 
case was timely appealed on July 19, 2023. This Court has jurisdiction under 28 
U.S.C. § 1291. 
STATEMENT OF THE ISSUE 
Whether the self-executing just compensation remedy for a taking, 
incorporated against the states through the Fourteenth Amendment, abrogates 
sovereign immunity from a Fifth Amendment takings claim? See First English 
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 
(1987), and Knick v. Township of Scott, 139 S. Ct. 2162 (2019). 
INTRODUCTION 
 
This case arises from Appellees Minnesota Governor Tim Walz and 
Minnesota Attorney General Keith Ellison’s (Officials) enforcement of a series of 
eviction moratoria that precluded Appellant Heights Apartments, LLC (Heights), 
from exercising its right to exclude nonpaying tenants, causing it to suffer a 
compelled physical occupation of its property. Heights sued, alleging in part that the 
eviction ban caused an unconstitutional taking of its property, in violation of the 
United States Constitution. 
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The district court originally dismissed Heights’ takings claim on the merits. 
However, this Court subsequently reversed. On remand to the district court, the 
Officials filed a motion for judgment on the pleadings, arguing that sovereign 
immunity principles emanating from the Eleventh Amendment barred Heights’ 
takings claim. The district court granted that motion, App. 111–26, R. Doc. 86 at 1–
16, and Heights now appeals again, returning the case to this Court.  
 
The district court erred in concluding that the state’s sovereign immunity bars 
Heights’ claim for just compensation for a taking. While the Eleventh Amendment 
generally precludes damages claims against the states, the Just Compensation Clause 
of the Fifth Amendment, applicable to the states through the Fourteenth 
Amendment, supplies a “self-executing” damages remedy for a taking. When 
Congress bound the states to the Just Compensation Clause remedy by enacting the 
Fourteenth Amendment’s Due Process Clause, it necessarily carved out an exception 
to a state’s sovereign immunity when it takes private property. First English 
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 
316 n.9 (1987) (rejecting the United States’ argument that sovereign immunity 
compels the conclusion that the Takings Clause does not provide a damages 
remedy); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714, 
717 (1999) (“Although the government acts lawfully when, pursuant to proper 
authorization, it takes property and provides just compensation, the government’s 
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action is lawful solely because it assumes a duty, imposed by the Constitution, to 
provide just compensation.”).  
 
While adopting the straightforward logic of the Just Compensation Clause to 
find that takings claims are exempt from sovereign immunity may exacerbate a split 
among the courts, there is nothing wrong with being part of a conflict when the court 
is on the right side. The correct conclusion is that the incorporation of the just 
compensation requirement in the Fourteenth Amendment’s Due Process Clause 
waived state sovereign immunity in takings cases, allowing property owners, like 
Heights, to sue the State when it takes property. Allen v. Cooper, 555 F. Supp. 3d 
226, 239 (E.D.N.C. 2021) (“[T]he text of the Fifth Amendment seems to require the 
government to provide money damages despite any applicable sovereign immunity 
bars, and there is no Eleventh Amendment language requiring a different 
outcome.”). 
STATEMENT OF THE CASE 
A. 
The COVID Eviction Orders  
In response to the COVID-19 crisis, Minnesota Governor Walz issued a series 
of executive orders related to housing: EOs 20-14, 20-73, and 20-79 (collectively, 
“EOs”).1 Heights Apartments, LLC v. Walz, 30 F.4th 720, 724 (8th Cir. 2022). These 
 
1 The Governor issued additional, related executive orders extending the void 
emergency for additional thirty-day periods with Executive Order 20-35 on April 13, 
2020, Executive Order 20-53 on May 13, 2020, Executive Order 20-75 on June 12, 
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orders were intended to keep tenants in rental units during the COVID emergency, 
regardless of their ability or willingness to pay rent. Id. at 724–25. The EOs halted a 
landlord’s ability to file an eviction action under Minnesota Statutes 2019, section 
504B.285 or 504B.291, or to terminate leases or decline to renew them for 
nonpayment and other lease breaches. Id. at 725. The only exceptions were when a 
tenant: 
a. Seriously endangers the safety of other residents; 
b. Violates Minnesota Statutes 2019, section 504B.171, subdivision 1; 
c. Remains in the property past the vacate date after receiving a notice to 
vacate or nonrenewal under paragraph 4 of the Executive Order (which 
allows property owners to move family members into their property); or 
d. Materially violates a residential lease by the following actions on the 
premises;  
 
i. Seriously endangers the safety of others; or 
 
ii. Significantly damages property. 
Heights, 30 F.4th at 725. 
The EOs imposed criminal and civil sanctions on landlords that tried to evict 
tenants or take other lease-terminating actions against tenants in violation of the 
orders. Id. 
 
2020, Executive Order 20-78 on July 13, 2020, and Executive Order 20-83 on 
August 12, 2020. The last such order was Executive Order 20-89, issued 
September 11, 2020. 
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B. 
The Impact of the Eviction Orders on Heights’ Properties 
Heights Apartments, LLC, is a Minnesota limited liability company that owns 
multiple rental properties. Heights, 30 F.4th at 725. Heights derives its income from 
the rent generated from its properties.2 The EOs significantly damaged Heights’ 
rental business and income. During the COVID crisis, many of its tenants did not 
comply with their lease terms. These violations included failing to pay their rent in 
full and on time, interfering with management of the property, including the ability 
to comply with local ordinances and impairing the enjoyment of the properties for 
other tenants, causing tenant departures. Id. at 725. These lease-violating tenants 
would normally be subject to eviction, or at least, the termination of their tenancies 
at the end of the rental period. But due to the EOs, Heights could not evict or 
terminate the leases for noncompliant tenants. Id.  
For example, on March 27, 2020, mere days after EO 20-14 went into effect, 
Heights closed on the sale of three properties from the same seller through a purchase 
contract which predated the EO. Heights, 30 F.4th at 725. The complaint refers to 
the properties as Property A,3 Property B, and Property C. App. 017–19, R. Doc. 1 
 
2 This action was originally brought by Heights and Walnut Trails, LLLP, a 
Minnesota limited liability limited partnership that owns a 168-unit apartment 
project in Eagan, Minnesota. But Walnut Trails is no longer a party to this case. 
3 Property A is a four-unit building in Minneapolis entirely comprised of low-income 
tenants who receive subsidies for housing. These subsidies are provided by the 
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at 7–9. Property B is a seven-unit building in St. Paul, Minnesota, that has 
experienced significant problems. In Property B, only residents in two units have 
regularly paid rent since the EOs went into effect. Further, one resident became 
months behind on rent and has been operating a vehicle repair shop in the parking 
lot in violation of city ordinances. Heights has received an order to abate the nuisance 
from the City of St. Paul, but despite numerous warnings, the problem tenant has not 
complied. Another resident in Property B stopped paying rent when EO 20-14 went 
into effect, and had an unauthorized resident living on the property, in violation of 
the lease. These two tenants are so disruptive that they caused another tenant to move 
out, but Heights was hesitant to move another tenant in because of these problems. 
These tenant problems would normally be sufficient to terminate their leases, to 
decline to renew leases, or to file eviction actions, but these options became 
unavailable to Heights because of the EOs. App. 018, R. Doc. 1 at 8. 
Property C, a six-unit building in Columbia Heights, has also experienced 
significant problems. In Property C, only three of the residents regularly paid rent 
during the COVID crisis. One resident had an unauthorized person living in the unit 
in violation of the lease, and stopped paying rent when EO 20-14 went into effect. 
He was also the subject of two nuisance letters from the City of Columbia Heights. 
 
federal government, and Heights has had no issues with the tenancies at this 
Property. 
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On December 27, 2019, the City of Columbia Heights sent the previous property 
owner a notice demanding that this tenant’s lease be terminated and eviction 
proceedings started, under threat of loss of the rental license. However, Heights was 
concerned that if the City is incorrect about the facts or if the tenant otherwise 
prevails, Heights could be subjected to civil and criminal penalties for evicting the 
tenant. App. 018–19, R. Doc. 1 at 8–9. These tenants’ actions would normally be 
sufficient to terminate leases, not renew them, or to trigger eviction actions, but the 
EOs foreclosed these options. Heights, 30 F.4th at 725. 
C. 
Prior Procedure 
Unable to enforce its leases against nonpaying, problem tenants, Heights filed 
suit. Heights, 30 F.4th at 725. Its complaint alleges, in part, that the EO’s eviction 
restrictions amounted to a taking of its property because they compelled the physical 
occupation of its property by unwanted tenants. The Officials moved to dismiss the 
complaint under Federal Rules of Civil Procedure 12(b)(1) and (b)(6) for lack of 
subject matter jurisdiction and for failure to state a claim. Id. The district court 
granted the motion, concluding that Heights failed to state viable claims. Heights 
appealed the district court’s judgment to this Court. See id. While this initial appeal 
was pending in this Court, the Minnesota Legislature subsequently voided the EOs 
and enacted a new eviction moratorium. See Act of June 29, 2021, 2021 Minn. Laws 
1st Spec. Sess. Ch. 8, art. 5 (the “Eviction Law”).  
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This Court subsequently issued an opinion holding that Heights’ claims were 
not mooted by the rescission of the EOs because Heights sought damages. Heights, 
30 F.4th at 726. Reversing the district court’s judgment of dismissal, this Court also 
held that Heights stated a valid per se takings claim against the eviction restrictions 
in the EOs. Id. at 733–35.  
On remand, the Officials filed a motion for judgment on the pleadings. The 
motion asserted that sovereign immunity barred Heights’ claim for just 
compensation for a taking of its property. On June 20, 2023, the district court granted 
the motion. App. 111–26, R. Doc. 86 at 1–16. In so doing, the court stated that it was 
“not persuaded by Heights Apartments’ argument about the interplay between the 
Takings Clause’s just‐compensation requirement and Eleventh Amendment 
immunity.” App. 118, R. Doc. 86 at 8. It further stated: “Federal courts have long 
held that the Eleventh Amendment prohibits property owners from filing federal‐
court actions seeking compensation from a state that has allegedly seized their 
property.” Id. (citing Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 955 (9th 
Cir. 2008)). Heights now appeals this judgment. 
STANDARD OF REVIEW 
This Court reviews a dismissal for lack of jurisdiction de novo. ABF Freight 
System, Inc. v. International Broth. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). 
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SUMMARY OF THE ARGUMENT 
The district court erred in holding that sovereign immunity bars Heights’ 
takings claim because it failed to correctly apprehend the impact of the Fourteenth 
Amendment’s imposition of the “just compensation” remedy for a taking on the 
State. To be sure, in most cases, the Eleventh Amendment and the Fifth 
Amendment’s Just Compensation Clause function adequately and independently. 
However, when a state takes property without compensation, sovereign immunity 
and the Just Compensation Clause—applicable to states through the Fourteenth 
Amendment—conflict. While the former provision bars a suit for damages, the latter 
requires it. 
The Just Compensation Clause prevails in this clash. The Supreme Court has 
repeatedly made clear that the Clause provides a “self-executing” damages remedy 
whenever the government takes private property, Jacobs v. United States, 290 U.S. 
13, 16 (1933). While states were not originally bound by this just compensation 
requirement, this changed with the enactment of the Fourteenth Amendment. The 
Due Process Clause of that amendment, which forbids “states” from 
unconstitutionally depriving citizens of property, incorporates the just compensation 
remedy and applies it to the states. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l 
Planning Agency, 535 U.S. 302, 306 n.1 (2002) (stating that the Just Compensation 
Clause “applies to the States as well as the Federal Government”). Enactment of the 
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Fourteenth Amendment thus carved out an exception to the states’ sovereign 
immunity for damages claims in the takings context.  
The Officials will doubtless note that, in EEE Minerals, LLC v. North Dakota, 
--- F.4th ---, 2023 WL 5600296 (8th Cir. 2023), this Court recently rejected the 
contention that the Just Compensation Clause trumps sovereign immunity. However, 
the EEE Minerals decision is currently being contested by a Petition for Rehearing 
En Banc because its conclusion is wrong and inconsistent with Supreme Court 
precedent. The Just Compensation Clause itself gives a person the right to seek 
damages in federal court when the government takes property. Knick v. Township of 
Scott, 139 S. Ct. 2162, 2172 (2019) (“[B]ecause a taking without compensation 
violates the self-executing Fifth Amendment at the time of the taking, the property 
owner can bring a federal suit at that time.”). States are obligated to the just 
compensation remedy for a taking by the Due Process Clause. The only reasonable 
conclusion is that sovereign immunity is inapplicable to a claim that a state must pay 
for taking property. First English, 482 U.S. at 316 n.9; see also Esposito v. S.C. 
Coastal Council, 939 F.2d 165, 173 n.3 (4th Cir. 1991) (Hall, J., dissenting); Eric 
Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 
Wash. & Lee L. Rev. 493, 519 (2006) (“[T]he straight textual argument seems to 
require the government to provide money damages [for a taking], notwithstanding 
otherwise applicable sovereign immunity bars.”). 
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The Supreme Court’s decision in Reich v. Collins, 513 U.S. 106, 108 (1994), 
is not to the contrary. Indeed, Reich is inapposite to the issue of whether the Just 
Compensation Clause overrides sovereign immunity. Reich states that sovereign 
immunity bars citizens from seeking a refund remedy in federal court under the Due 
Process Clause for unconstitutionally collected taxes, though that refund remedy is 
available in the states’ own courts. This has no bearing on the sovereign 
immunity/just compensation issue here. Reich does not even address the question at 
hand: whether a constitutionally-mandated damages remedy that is self-executing in 
federal court, Knick, 139 S. Ct. at 2172, is exempt from sovereign immunity in that 
forum. Reich’s limited due process analysis hardly overrides Just Compensation 
Clause precedent demonstrating that the Fourteenth Amendment requires states to 
answer to takings claims.  
ARGUMENT 
AS INCORPORATED IN THE FOURTEENTH AMENDMENT, 
THE SELF-EXECUTING COMPENSATION REMEDY 
FOR A TAKING OVERRIDES SOVEREIGN IMMUNITY 
A. 
Background Principles 
The Eleventh Amendment states: “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.” Although departing significantly from its 
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plain language, the Supreme Court has held that this Amendment generally bars all 
suits against a state entity absent the state’s consent, Hans v. Louisiana, 134 U.S. 1, 
21 (1890); Edelman v. Jordan, 415 U.S. 651, 666–67 (1974), and specifically bars 
suits seeking damages from a state. Ford Motor Co. v. Dep’t of Treasury of Ind., 323 
U.S. 459, 464 (1945); Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 
(1994) (“[T]he impetus for the Eleventh Amendment [is] the prevention of federal-
court judgments that must be paid out of a State’s treasury.”). It applies in both 
federal and state courts. Alden v. Maine, 527 U.S. 706 (1999). 
But there are exceptions. Sovereign immunity is inapplicable where “[t]he 
States have consented” to suit “pursuant to the plan of the [Constitutional] 
Convention or to subsequent constitutional Amendments.” Id. at 755. Further, 
Section 5 of the Fourteenth Amendment allows Congress to enforce Fourteenth 
Amendment rights against states without respect to sovereign immunity, id. at 755–
57, and in Ex parte Young, this Court recognized that a person may sue state officials 
for prospective relief from an ongoing violation of federal law. 209 U.S. 123 (1908); 
see also Milliken v. Bradley, 433 U.S. 267, 289–90 (1977).  
While the Supreme Court has not explicitly held that the Just Compensation 
Clause operates as a planned exception to sovereign immunity, it has strongly 
suggested as much by repeatedly holding that property owners may sue states when 
they unconstitutionally take property. See, e.g., Cedar Point Nursery v. Hassid, 141 
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S. Ct. 2063, 2069 (2021) (plaintiffs successfully sued state officials in federal court 
for a taking); Phillips v. Washington Legal Foundation, 524 U.S. 156, 163 (1998) 
(plaintiffs sued justices of the Texas Supreme Court, among others, in federal court 
for an unconstitutional taking); see also Stop the Beach Renourishment, Inc. v. Fla. 
Dep’t of Env’t Prot., 560 U.S. 702, 711–12 (2010) (adjudicating a takings claim 
against a state agency); Palazzolo v. Rhode Island, 533 U.S. 606, 615–16 (2001); 
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1009–10 (1992). Allowing takings 
suits against states without respect to sovereign immunity principles makes sense 
because the state suffers no net loss to its treasury by paying just compensation, 
which is the “equivalent in money of the property taken.” United States v. Miller, 
317 U.S. 369, 373 (1943). 
More importantly, the Supreme Court has held that the Just Compensation 
Clause provides a damages remedy for a taking that is “self-executing” and 
actionable against all government entities subject to the Constitution. First English, 
482 U.S. at 315–16; Knick, 139 S. Ct. at 2171 (“Because of ‘the self-executing 
character’ of the Takings Clause ‘with respect to compensation,’ a property owner 
has a constitutional claim for just compensation at the time of the taking.” (quoting 
First English, 482 U.S. at 315)); United States v. Clarke, 445 U.S. 253, 257 (1980) 
(“A landowner is entitled to bring such an [inverse condemnation] action as a result 
of ‘the self-executing character of the constitutional provision with respect to 
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compensation . . . .’” (citation omitted)). The self-executing nature of the Just 
Compensation Clause means that no legislation is needed for the just compensation 
remedy to be available to those who suffer a taking; the Constitution itself confers a 
right to seek just compensation in court for a taking. Jacobs, 290 U.S. at 16 (claims 
“based on the right to recover just compensation for property taken” do not require 
“[s]tatutory recognition” but are “founded upon the Constitution”); Knick, 139 S. Ct. 
at 2170 (“Jacobs made clear that, no matter what sort of procedures the government 
puts in place to remedy a taking, a property owner has a Fifth Amendment 
entitlement to compensation as soon as the government takes his property without 
paying for it.”); cf. McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. 
Cir. 2008) (distinguishing between the Takings Clause, which comes with an 
inferred cause of action, and the Treaty of Amity, which does not). 
B. 
The Due Process Clause of the Fourteenth Amendment Applied the 
Just Compensation Requirement to the States and Abrogated 
Sovereign Immunity 
As the foregoing shows, the Just Compensation Clause gives property owners 
a right to seek damages whenever government takes property without compensation, 
and this right adheres in federal court. Knick, 139 S. Ct. at 2171–73. Of course, the 
Just Compensation Clause originally applied only to the federal government. Barron 
v. City of Baltimore, 32 U.S. 243, 250–51 (1833). But this changed with ratification 
of the Fourteenth Amendment, which specifically provides that “No State shall make 
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or enforce any law which shall . . . deprive any person of life, liberty, or property, 
without due process of law . . . .” U.S. Const. amend. XIV, § 1. The Amendment 
“fundamentally altered the balance of state and federal power” by “requir[ing] the 
States to surrender a portion of the sovereignty that had been preserved to them by 
the original Constitution.” Alden, 527 U.S. at 756. Its provisions “were intended to 
be, what they really are, limitations of the power of the States,” Ex parte Virginia, 
100 U.S. 339, 345 (1879). “[A] State cannot disregard the limitations which the 
Federal Constitution has applied to her power. Her rights do not reach to that extent.” 
Id. at 346. 
Central to the Fourteenth Amendment’s dilution of state power is the Due 
Process Clause and its command that states refrain from “depriv[ing] any person of 
life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 
Importantly for present purposes, the Due Process Clause incorporated the Fifth 
Amendment’s Just Compensation Clause and its self-executing damages remedy for 
a taking. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 239–41 (1897). 
Consequently, ratification of the Fourteenth Amendment subjected states to the Just 
Compensation Clause’s requirement that government pay when taking property. 
Tahoe-Sierra Pres. Council, 535 U.S. at 306 n.1 (The Just Compensation Clause 
“applies to the States as well as the Federal Government.”); cf. In re Venoco LLC, 
998 F.3d 94, 110 (3d Cir. 2021) (“State sovereign immunity is a critical feature of 
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the U.S. Constitution, but it is not absolute. When they ratified the Constitution, 
states waived their sovereign immunity defense in bankruptcy proceedings[.]”); 
Memphis & C. R. Co. v. Tennessee, 101 U.S. 337, 339 (1879) (“Adjudication is of 
no value as a remedy unless enforcement follows.”). Because the Fifth Amendment 
itself requires monetary “compensation” for every taking, and Congress adopted the 
Fourteenth Amendment and its incorporated just compensation remedy, the states 
necessarily waived their sovereign immunity to takings claims pursuant to “the 
constitutional plan.” PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 
2262 (2021). 
Consider Section 5 of the Fourteenth Amendment. Under that section, 
Congress may enforce constitutional guarantees against states by legislating a 
damages remedy for a violation, without violating sovereign immunity principles. 
Fitzpatrick v. Bitzer, 427 U.S. 445, 448–49, 456 (1976). Yet, if legislation creating 
a monetary remedy against Fourteenth Amendment-violating states overcomes 
sovereign immunity, id., then certainly a just compensation remedy already 
embedded directly in the Fourteenth Amendment has the same effect. See, e.g., Cent. 
Va. Cmty. College v. Katz, 546 U.S. 356, 373–78 (2006) (Bankruptcy Clause 
provides a constitutionally grounded exception to sovereign immunity); Allen, 555 
F. Supp. 3d at 236 (holding that Knick “decisively endorsed the decision in First 
English, including its statement that the Constitution, ‘of its own force, furnish[es] 
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a basis for the court to award money damages against the government,’ 
notwithstanding principles of sovereign immunity” (quoting Knick, 139 S. Ct. at 
2172)). Therefore, when the states were subjected to the Fourteenth Amendment and 
its incorporated “self-executing” Just Compensation Clause remedy, property 
owners harmed by a state taking acquired a right to seek compensation, 
notwithstanding immunity. First English, 482 U.S. at 316 n.9; Allen, 555 F. Supp. 
3d at 236–39. 
C. 
Reich Has No Relevance to the Just Compensation Clause 
In EEE Minerals, this Court concluded that the Supreme Court’s decision in 
Reich overrides the logic of the self-executing Just Compensation Clause, and 
requires federal courts to apply sovereign immunity to bar takings claims. This was 
a mistake. As a due process case dealing with a constitutional provision that, unlike 
the Takings Clause, has never been self-executing in federal court, Reich is 
inapposite. 
Reich held that the Due Process Clause requires states to provide a refund 
remedy in state courts when the state has unconstitutionally collected taxes. 513 U.S. 
at 108–09; see also McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 
U.S. 18, 32 (1990) (noting the “State’s obligation to provide retrospective relief as 
part of [a] postdeprivation procedure”). In so holding, Reich held that sovereign 
immunity did not bar that remedy: “‘a denial by a state court of a recovery of taxes 
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exacted in violation of the laws or Constitution of the United States by compulsion 
is itself in contravention of the Fourteenth Amendment,’ the sovereign immunity 
States traditionally enjoy in their own courts notwithstanding.” 513 U.S. at 109–10 
(citation omitted). The Reich Court subsequently noted, in dicta, that “the sovereign 
immunity States enjoy in federal court, under the Eleventh Amendment, does 
generally bar tax refund claims from being brought in that forum.” Id. at 110 (citing 
Ford Motor Co., 323 U.S. 459).  
Some circuit courts, including this one in the EEE decision, have concluded 
that Reich controls the issue of whether the Fourteenth Amendment-incorporated 
Just Compensation Clause abrogates sovereign immunity in federal court. EEE 
Minerals, --- F.4th ---, 2023 WL 5600296, at * 4. But it does not. Reich says nothing 
about the Takings Clause. It dealt only with the “recovery of taxes,” and taxes are 
not takings. Tyler v. Hennepin Cnty., 598 U.S. 631, 637 (2023). Moreover, the 
Takings Clause is not analogous to the Due Process Clause. The Supreme Court has 
repeatedly rejected the idea that takings questions can be resolved by due process 
analysis. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536–37, 541–42 (2005) 
(divorcing takings and due process principles; the “Takings Clause . . . ‘is designed 
not to limit the governmental interference with property rights per se, but rather to 
secure compensation in the event of otherwise proper interference amounting to a 
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taking’” (quoting First English, 482 U.S. at 315)); Knick, 139 S. Ct. at 2174 (“[T]he 
analogy from the due process context to the takings context is strained . . . .”). 
More specifically, there is a sharp distinction between the tax refund remedy 
available under the Due Process Clause and the Just Compensation Clause takings 
remedy, one that precludes an analogy between the provisions for purposes of 
sovereign immunity. The difference is that the due process tax refund remedy has 
never been held self-executing in federal court; it is only enforceable in state court. 
Reich, 513 U.S. at 109 (“a denial by a state court of a recovery of taxes exacted in 
violation of the laws or Constitution of the United States by compulsion is itself in 
contravention of the Fourteenth Amendment” (emphasis added)); 28 U.S.C. § 1341 
(“The district courts shall not enjoin, suspend or restrain the assessment, levy or 
collection of any tax under State law where a plain, speedy and efficient remedy may 
be had in the courts of such State.”); see also, Fair Assessment in Real Estate Ass’n, 
Inc. v. McNary, 454 U.S. 100, 105 (1981) (holding tax claims non-justiciable in 
federal court).  
Conversely, the Just Compensation Clause remedy is self-executing in federal 
court. Knick, 139 S. Ct. at 2172 (“[B]ecause a taking without compensation violates 
the self-executing Fifth Amendment at the time of the taking, the property owner 
can bring a federal suit at that time.” (emphasis added)); Clarke, 445 U.S. at 257 (“A 
landowner is entitled to bring such an [inverse condemnation] action as a result of 
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the self-executing character of the constitutional provision with respect to 
compensation.” (quotation & citation omitted)); United States v. Dickinson, 331 U.S. 
745, 748 (1947) (“But whether the theory of these suits be that there was a taking 
under the Fifth Amendment, and that therefore the Tucker Act may be invoked 
because it is a claim founded upon the Constitution, or that there was an implied 
promise by the Government to pay for it, is immaterial. In either event, the claim 
traces back to the prohibition of the Fifth Amendment . . . .”). 
Because the Due Process Clause tax refund remedy in Reich is not “self-
executing” in federal court, Reich’s conclusion that sovereign immunity bars the 
remedy in federal court, but not in state court, is plausible. Reich, 513 U.S. at 110. 
But the same reasoning cannot be applied to the Just Compensation Clause because 
its damages remedy is self-executing in federal court. Knick, 139 S. Ct. at 2171–73. 
In short, Reich simply does not address the issue here: whether a constitutionally 
mandated damages remedy that binds the state through the Fourteenth Amendment 
and is self-executing in federal court overrides the state’s sovereign immunity in 
federal court. The Court should resolve this case pursuant to core constitutional 
principles, such as the Fourteenth Amendment’s imposition of the just compensation 
obligation on states, not by inapposite due process tax refund precedent. 
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CONCLUSION 
 
The Court should reverse the judgment below and remand for further 
proceedings. 
 
DATED: September 21, 2023. 
Respectfully submitted, 
 
J. DAVID BREEMER 
MICHAEL KEMP 
 
/s/ J. David Breemer 
 
  
J. DAVID BREEMER 
Attorneys for Plaintiff – Appellant 
Heights Apartments, LLC 
 
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Dated: September 21, 2023. 
 
 
J. DAVID BREEMER 
 
 
 
 
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I hereby certify that on September 21, 2023, I electronically filed the 
foregoing with the Clerk of the Court for the United States Court of Appeals for the 
Eighth Circuit by using the appellate CM/ECF system. 
 
I certify that all participants in the case are registered CM/ECF users and that 
service will be accomplished by the appellate CM/ECF system. 
 
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J. DAVID BREEMER 
 
 
 
 
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