Appellees' response brief (8th Cir.) — Heights Apartments v. Walz

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No. 23-2686 
 
 
IN THE 
UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT  
_____________________________________________________ 
 
HEIGHTS APARTMENTS, LLC, 
 
Appellant, 
 
vs. 
 
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 
 
 
Appellees. 
_____________________________________________________ 
 
ON APPEAL FROM THE UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF MINNESOTA  
HONORABLE NANCY ELLEN BRASEL, DISTRICT JUDGE  
_____________________________________________________ 
 
APPELLEES’ RESPONSE BRIEF 
_____________________________________________________ 
 
J. DAVID BREEMER 
Pacific Legal Foundation 
555 Capital Mall, Suite 1290 
Sacramento, California 95814 
Telephone:  (916) 419-7111 
JBreemer@pacificlegal.org 
 
MICHAEL KEMP 
Aaron Ferguson Law 
2700 Snelling Avenue North, 
Suite 460 
Roseville, Minnesota 55113 
Telephone: (651) 493-0426 
 
KEITH ELLISON 
Attorney General 
State of Minnesota 
 
LIZ KRAMER 
Solicitor General 
Atty. Reg. No. 0325089 
 
MICHAEL GOODWIN (#3090244) 
Assistant Attorneys General 
 
445 Minnesota Street, Suite 1400 
St. Paul, MN 55101-2131 
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Michael@aaronfergusonlaw.com 
 
ATTORNEYS FOR APPELLANT 
Telephone: (651) 757-1218 
Fax: (651) 282-5832 
liz.kramer@ag.state.mn.us 
michael.goodwin@ag.state.mn.us 
 
ATTORNEY FOR APPELLEES 
 
 
 
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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT 
 
 
Appellant Heights Apartments, LLC (“Heights”) seeks an award of money 
damages against Appellees Minnesota Governor Tim Walz and Attorney General 
Keith Ellison in their official capacities.  Time and time again, this Court has 
followed the U.S. Supreme Court in holding that the Eleventh Amendment bars such 
claims.  As Heights acknowledges, this Court’s most recent case rejecting this theory 
was issued in August of 2023, joining every federal appeals court to have considered 
the issue.  Heights offers no persuasive reason for this Court to break new ground.  
Because the legal issues in this case are simple, straightforward, and 
controlled by precedent, Appellees believe 10 minutes of oral argument is sufficient. 
  
 
 
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TABLE OF CONTENTS 
Page 
SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT .................... i 
TABLE OF AUTHORITIES .................................................................................... iii 
STATEMENT OF ISSUE .......................................................................................... 1 
STATEMENT OF THE CASE .................................................................................. 2
I.
THE STATE OF MINNESOTA RESPONDS TO AN UNPRECEDENTED PUBLIC
HEALTH CRISIS. ................................................................................................ 2
II.
GOVERNOR WALZ TEMPORARILY LIMITED EVICTIONS TO REDUCE
SPREAD OF VIRUS............................................................................................. 3
III.
ON REMAND, THE DISTRICT COURT GRANTS APPELLEES JUDGMENT ON
THE PLEADINGS ON HEIGHTS’ REMAINING CLAIMS. ........................................ 5
SUMMARY OF ARGUMENT ................................................................................. 7 
ARGUMENT ............................................................................................................. 7
I.
HEIGHTS’ CLAIMS AGAINST APPELLEES IN THEIR OFFICIAL CAPACITIES
ARE BARRED BY THE ELEVENTH AMENDMENT. .............................................. 7
II.
THE FOURTEENTH AMENDMENT DID NOT ABROGATE THE STATE’S
SOVEREIGN IMMUNITY.................................................................................... 12
III.
HEIGHTS’ ARGUMENT THAT ITS DAMAGES CLAIM WAS BROUGHT
“DIRECTLY” UNDER THE FIFTH AMENDMENT IS BOTH FORFEITED AND
UNSUPPORTED. ............................................................................................... 15
CONCLUSION ........................................................................................................ 17
APPELLEES’ APPENDIX ............................................ Appellees’ Appendix 1 –  25 
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TABLE OF AUTHORITIES 
 
 
Page 
 
Federal Cases 
 
Alden v. Maine, 
527 U.S. 706 (1999) ................................................................................. 1, 7, 8, 14 
 
Allen v. Cooper, 
140 S. Ct. 994 (2020) ......................................................................................... 1, 8 
 
Ashcroft v. Iqbal, 
556 U.S. 662 (2009) ............................................................................................... 5 
 
Church v. Missouri, 
913 F.3d 736 (8th Cir. 2019) .................................................................... 11, 12, 14 
 
City of Boerne v. Flores, 
521 U.S. 507 (1997) ......................................................................................... 9, 14 
 
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 
526 U.S. 687 (1999) ............................................................................................. 12 
 
Coleman v. Ct. of Appeals of Maryland, 
566 U.S. 30 (2012) ............................................................................................... 14 
 
Devillier v. Texas, 
   22-913 --- S. Ct. ----, 2023 WL 6319651 (Sept. 29, 2023) .................................. 17 
 
EEE Mins., LLC v. State of N. Dakota., 
81 F.4th 809 (8th Cir. 2023) .................................................................. 1, 9, 10, 11 
 
Fitzpatrick v. Bitzer, 
427 U.S. 445, (1976) ............................................................................................ 13 
 
Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 
527 U.S. 627 (1999) ............................................................................................... 9 
 
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Gibson v. Ark. Dep’t of Corr., 
265 F.3d 718 (8th Cir. 2001) .................................................................................. 9 
 
Glasgow v. Nebraska, 
819 F.3d 436 (8th Cir. 2016) ................................................................................ 17 
 
Heights Apartments, LLC v. Walz, 
30 F.4th 720 (8th Cir. 2022) .................................................................................. 6 
 
Heights Apartments, LLC v. Walz, 
39 F.4th 479 (8th Cir. 2022) .................................................................................. 6 
 
Hernandez v. Mesa, 
140 S. Ct. 735 (2020) ........................................................................................... 17 
 
Hiland Partners GP Holdings, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 
847 F.3d 594 (8th Cir. 2017) ................................................................................ 15 
 
Johnson v. City of Shelby, Miss., 
574 U.S. 10 (2014) ............................................................................................... 17 
 
Kentucky v. Graham, 
473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) .......................................... 8 
 
Klingler v. Dir., Dep’t of Revenue, State of Mo., 
455 F.3d 888 (8th Cir. 2006) ................................................................................ 13 
 
Knick v. Township of Scott, 
139 S. Ct 2162 (2019). ................................................................................... 11, 16 
 
Kruger v. Nebraska, 
820 F.3d 295 (8th Cir. 2016) .............................................................................. 8, 9 
 
Mader v. United States, 
654 F.3d 794 (8th Cir. 2011) ................................................................................ 10 
 
Maine Cmty. Health Options v. United States, 
140 S. Ct. 1308 (2020) ......................................................................................... 16 
 
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v 
Montgomery v. City of Ames, 
829 F.3d 968 (8th Cir. 2016) .................................................................................. 9 
 
Pharm. Rsch. & Manufacturers of Am. v. Williams, 
64 F.4th 932 (8th Cir. 2023) ................................................................................ 11 
 
Quern v. Jordan, 
440 U.S. 332 (1979) ......................................................................................... 9, 13 
 
Reich v. Collins, 
 513 U.S. 106 (1994) ....................................................................................... 10, 11 
 
S & M Brands, Inc. v. Cooper, 
527 F.3d 500 (6th Cir. 2008) ................................................................................ 11 
 
Seminole Tribe of Fla. v. Fla., 
 517 U.S. 44 (1996) ............................................................................................... 13 
 
Seven Up Pete Venture v. Schweitzer, 
523 F.3d 948 (9th Cir. 2008) ............................................................................ 9, 11 
 
Singer v. Harris, 
897 F.3d 970 (8th Cir. 2018) .................................................................................. 9 
 
Skatemore, Inc. v. Whitmer, 
40 F.4th 727 (6th Cir. 2022) .......................................................................... 12, 15 
 
Smith v. Kentucky, 
36 F.4th 671 (6th Cir. 2022) .................................................................... 12, 13, 17 
 
Torres v. Texas Dep’t of Pub. Safety, 
142 S. Ct. 2455 (2022) ......................................................................................... 14 
 
United States v. Nunez-Hernandez, 
43 F.4th 857 (8th Cir. 2022) ................................................................................ 16 
 
Virginia Off. for Prot. & Advoc. v. Stewart, 
563 U.S. 247 (2011) ........................................................................................... 8, 9 
 
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Will v. Mich. Dep’t of State Police, 
491 U.S. 58 (1989) ............................................................................................... 17 
 
Wright-Gottshall v. New Jersey, 
No. 3:21-CV18954-PGS-DEA 2023 WL 3183288 (D.N.J. May 1, 2023) .......... 15 
 
Zito v. N. Carolina Coastal Res. Comm’n, 
8 F.4th 281 (4th Cir. 2021) .............................................................................. 9, 11 
 
Federal Statutes 
 
42 U.S.C. § 1983 .............................................................................................. Passim 
 
State Statutes 
 
Act of June 29, 2021, ch. 8, art. 5, §§ 1-4, 2021 Minn. Laws 1st Spec. Sess .......... 4 
 
Act of June 30, 2021, ch. 12, art. 2, § 23, 2021 Minn. Laws 1st Spec. Sess. ........... 5 
 
Federal Constitutional Provisions 
 
U.S. Const. Amend. XI .................................................................................... Passim 
 
U.S. Const. Amend. XIV ................................................................................. Passim 
 
Federal Regulations 
 
Temporary Halt in Residential Evictions To Prevent the Further Spread of 
COVID-19, 
85 Fed. Reg. 55292 (Sept. 4, 2020) ....................................................................... 3 
 
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STATEMENT OF ISSUE 
The Eleventh Amendment prohibits federal lawsuits against non-consenting 
states (and state actors in their official capacities) unless Congress has validly 
abrogated sovereign immunity.  Appellant Heights Apartments, LLC (“Heights”) 
sued Minnesota Governor Tim Walz and Minnesota Attorney General Keith Ellison 
in their official capacities, claiming damages under the Takings Clause arising from 
issuance of executive orders designed to minimize the spread of the deadly COVID-
19 virus.  Are Heights’ claims barred by sovereign immunity? 
Apposite authorities: 
U.S. Const. Amend. XI 
Allen v. Cooper, 140 S. Ct. 994 (2020) 
Alden v. Maine, 527 U.S. 706 (1999) 
EEE Mins., LLC v. State of N. Dakota. 81 F.4th 809 (8th Cir. 2023) 
 
 
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STATEMENT OF THE CASE 
I. 
THE STATE OF MINNESOTA RESPONDS TO AN UNPRECEDENTED PUBLIC 
HEALTH CRISIS. 
It is undisputed that COVID-19 created a public health crisis and caused 
adverse impacts on many, if not all, Minnesotans.  (App. 11, R. Doc. 1.)  In response 
to the COVID-19 public health crisis, Governor Walz issued a peacetime emergency 
declaration on March 13, 2020.  (App. 13, R. Doc. 1, ¶ 8.) See also Emergency 
Executive Order (“Emergency EO” or “EO”) 20-01.1  Minnesota engaged in a 
comprehensive plan to combat COVID-19 aimed at slowing the spread of the 
disease, protecting the capacity of the State’s medical system to respond to the 
disease, and ensuring the continued operation of critical sectors to protect the 
public’s access to necessary services and supplies.  See, e.g., Emergency EOs 20-02 
through 20-63, 20-66, 20-70, 20-73 through 20-76, 20-78 through 20-86, 20-89, 20-
92, 20-94 through 20-107, 21-01 through 21-04, 21-07, 21-11, 21-12, 21-15, 21-16, 
21-17, 21-19, 21-21, 21-22, 21-23, and 21-24. (See also App. 13, R. Doc. 1, ¶ 9.)   
Both the pandemic and the government response are events without precedent 
in at least the last century and perhaps in recorded history.  Indeed, Heights says in 
its Complaint that it “fully recognize[s] the depths of the crisis facing the State, while 
 
1 All of Minnesota’s Emergency Executive Orders regarding COVID-19 are 
available online at https://www.leg.state.mn.us/lrl/execorders/eoresults?gov=44 
(last visited Oct. 23, 2023) [PERMA: https://perma.cc/EV34-32NG]. 
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also recognizing the hundreds of billions of dollars the state and federal governments 
have invested in ensuring that citizens are able to provide for necessities for 
themselves and their families, including for housing.”  (App. 29, R. Doc. 1.)  
II. 
GOVERNOR WALZ TEMPORARILY LIMITED EVICTIONS TO REDUCE SPREAD 
OF VIRUS. 
Like the federal government and many state and local governments, 
Minnesota temporarily limited the ability of residential property owners to evict 
tenants.  See, e.g., Temporary Halt in Residential Evictions To Prevent the Further 
Spread of COVID-19, 85 Fed. Reg. 55292, 55292-95 (Sept. 4, 2020).  On March 23, 
2020, Governor Walz issued Emergency EO 20-14.  (App. 14, R. Doc. 1, ¶ 13; App. 
31-41, R. Doc. 1-1, 2, 3.)  Recognizing the economic consequences of the pandemic 
as well as the connection between housing stability and control of community spread 
of the virus, EO 20-14 temporarily limited the circumstances in which property 
owners could terminate residential leases or use the statutory eviction procedure.  
(App. 31-33, R. Doc. 1-1.)  Noting similar measures by the federal government and 
at least two dozen other states, the Governor stated: 
[p]ublic health and safety are promoted by stabilizing households 
which, through no fault of their own, may suddenly have the inability 
to afford rent.  Providing a temporary moratorium on eviction actions 
allows these households to remain stably housed as they safeguard the 
health of themselves, their families, and other Minnesotans.  
 
(App. 32, R. Doc. 1-1 at 2.)   
EO 20-14 authorized eviction cases in which the tenant “seriously endangered 
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the safety of other residents” or engaged in illegal activity related to drugs, firearms, 
prostitution, or stolen goods on the property.  Id.  EO 20-14 specifically provided 
that it did not affect a tenant’s continuing obligation to pay rent.  Id.  On June 5, 
2020, the Governor issued Emergency EO 20-73 to clarify that evictions were also 
authorized in “situations where a tenant seriously endangers the safety of others who 
are not residents.”  (App. 35-37, R. Doc. 1-2.)_ 
On July 14, 2020, Governor Walz issued Emergency EO 20-79, which 
rescinded EO 20-14 and EO 20-73 and took effect on August 4, 2020.  (App. 38, R. 
Doc. 1-3.)  EO 20-79 created additional exceptions to the eviction moratorium, 
including an exception for when a tenant violates a lease by “significantly 
damag[ing] the property.”  (Id.).  EO 20-14, 20-73, and 20-79 are collectively 
referred to herein as the “Orders.”2 
In June 2021, Governor Walz and the Legislature agreed to a phaseout of these 
emergency eviction restrictions.  See Act of June 29, 2021, ch. 8, art. 5, §§ 1-4, 2021 
Minn. Laws 1st Spec. Sess.  Separately, the Orders became null and void when 
Governor Walz and the Legislature reached an agreement ending Governor Walz’s 
COVID-19 peacetime emergency declaration, effective July 1, 2021.  See Act of 
 
2 One researcher estimated that that the Orders saved 2,040 lives and prevented 
111,000 COVID-19 infections through January 4, 2021.  Larry McDonough, 
Pandemic Eviction Claims and Defenses and Other Housing Claims in Minnesota, 
p. 
28 
(updated 
and 
revised 
February 
2022) 
(available 
at 
PERMA: https://perma.cc/9AST-QD33 (last visited Oct. 23, 2023).   
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June 30, 2021, ch. 12, art. 2, § 23, 2021 Minn. Laws 1st Spec. Sess.  Meanwhile, the 
State made hundreds of millions of dollars in rental assistance available to Minnesota 
tenants and landlords.  See RentHelpMN Dashboard, Minnesota Housing Finance 
Agency, https://www.mnhousing.gov/renthelpmn/renthelpmn-dashboard.html  (last 
visited Oct. 21, 2023) [PERMA: https://perma.cc/B5TU-UVR3].  
III. 
ON REMAND, THE DISTRICT COURT GRANTS APPELLEES JUDGMENT ON 
THE PLEADINGS ON HEIGHTS’ REMAINING CLAIMS. 
Heights and another landlord sued Governor Walz and Attorney General 
Ellison3 in September 2020, seeking to enjoin the Orders and to recover money 
damages for alleged harm.  (App. 11, R. Doc. 1.)  Heights pleaded substantive claims 
under the Petition Clause of the First Amendment, the Contracts Clause, the Takings 
Clause, and the Due Process Clause of the Fourteenth Amendment, as well as 
separate counts for allegedly “ultra vires acts” under state law, for violations of 42 
U.S.C. § 1983, and for declaratory judgment.  (App. 11-30, R. Doc. 1.)  The district 
court dismissed all of the claims and denied the Landlords’ request for an injunction 
as moot.  (App. 42-84, R. Doc. 37.)   
 
3 Heights Complaint contains no allegation that Attorney General Ellison took any 
action related to their properties.  This is a separate reason to affirm the dismissal of 
claims against Attorney General Ellison.  Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) 
(holding “a plaintiff must plead that each Government-official defendant, through 
the official's own individual actions, has violated the Constitution.”) 
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Heights appealed without the other landlord.  This Court affirmed in part and 
reversed in part.  First, the Court dismissed as moot Heights’ claims for declaratory 
and injunctive relief because the Orders had been voided by legislation signed into 
law by the Governor.  Heights Apartments, LLC v. Walz, 30 F.4th 720, 726 (8th Cir. 
2022).  The Court also affirmed the dismissal of Heights’ claims under the Petition 
Clause and the Due Process Clause.  Id. at 732, 735-36.  Departing from the district 
court, the Court held that Heights had pleaded viable claims for physical and 
regulatory takings, relying on U.S. Supreme Court case law issued after the Orders 
were set to expire.  Id. at 734-35.     
 
The Eighth Circuit later denied Defendants’ petition for rehearing en banc, 
with four of the court’s 11 active judges voting to grant the petition.  Heights 
Apartments, LLC v. Walz, 39 F.4th 479 (8th Cir. 2022) (mem.).  Dissenting from the 
denial of rehearing, Judge Colloton criticized the panel decision for misreading 
Supreme Court precedent and for being “an outlier among federal courts.”  Id. at 481 
(Colloton, J., dissenting).   
 
On remand, Appellees moved for judgment on the pleadings on Heights’ 
remaining claims for money damages.  (Add. 03-18.)  The district court agreed that 
Heights’ official capacity claims were barred by sovereign immunity and its 
individual capacity claims were barred by qualified immunity.  (Add. 08-10; App. 
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117-124; R. Doc. 86.)  Heights appeals only as to its takings claim against Appellees 
in their official capacities.   
SUMMARY OF ARGUMENT 
 
The district court properly granted Appellees’ motion for judgment on the 
pleadings.  This Court has repeatedly, and recently, held that the Eleventh 
Amendment bars claims against state officials sued in their official capacity, 
including takings claims.  Heights asks the Court to reject this precedent (and the 
overwhelming weight of authority) to chart a new path.  But it gives the Court no 
good reason to do so, especially given that this Court and most others have rejected 
its arguments about the “self-executing” nature of the Fifth Amendment and 
Fourteenth Amendments.  Heights also attempts to recast its damages claim as a 
direct action under the Fifth Amendment instead of the § 1983 action in its 
Complaint, an argument this Court should reject on both procedural and substantive 
grounds.  The Court should affirm the district court’s grant of judgment on the 
pleadings.   
ARGUMENT 
I. 
HEIGHTS’ CLAIMS AGAINST APPELLEES IN THEIR OFFICIAL CAPACITIES ARE 
BARRED BY THE ELEVENTH AMENDMENT.  
“The generation that designed and adopted our federal system considered 
immunity from private suits central to sovereign dignity.”  Alden v. Maine, 527 U.S. 
706, 715 (1999).  The Eleventh Amendment states that “[t]he Judicial power of the 
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United States shall not be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United States by Citizens of another 
State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI.  
Quickly adopted in the wake of the Supreme Court’s “profound[ly] shock[ing]” 
decision in Chisolm v. Georgia, the Eleventh Amendment was intended to undo 
Chisholm as well as “to preserve the States’ traditional immunity from private suits.” 
Alden, 527 U.S. at 724 (1999).   
Consistent with this historical understanding, the U.S. Supreme Court has 
interpreted the Eleventh Amendment to mean “a federal court generally may not 
hear a suit brought by any person against a nonconsenting State.”  Allen v. Cooper, 
140 S. Ct. 994, 1000 (2020).  This includes claims against State officials sued in 
their official capacities.  See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 
3099, 87 L.Ed.2d 114 (1985); Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 
2016). “[A]bsent waiver or valid abrogation, federal courts may not entertain a 
private person’s suit against a State.” Virginia Off. for Prot. & Advoc. v. Stewart, 
563 U.S. 247, 254 (2011). 
Sovereign immunity bars suits against non-consenting states even when 
constitutionally-protected property rights are at issue. Allen, 140 S. Ct. at 1003 
(holding that sovereign immunity barred copyright infringement lawsuits against 
states);  Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 
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627, 640 (1999) (holding that sovereign immunity barred patent infringement 
lawsuits against states).  This Court has routinely applied these principles to bar suits 
against states, most recently in EEE Minerals, LLC v. State of N. Dakota, 81 F.4th 
809, 815 (8th Cir. 2023) (citing Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 
253 (2011)).  See also, e.g., Singer v. Harris, 897 F.3d 970, 976 (8th Cir. 2018); 
Kruger, 820 F.3d at 301; Montgomery v. City of Ames, 829 F.3d 968, 973 (8th Cir. 
2016) (“[T]he State and its agencies are immune from suits for damages.”) (citing 
Quern v. Jordan, 440 U.S. 332, 337 (1979)); Gibson v. Ark. Dep’t of Corr., 265 F.3d 
718, 720 (8th Cir. 2001). 
Heights acknowledges these universally-recognized rules of law, but still 
maintains that the “self-executing” nature of the Fifth Amendment overrides 
sovereign immunity.  (App. Br. 12-14.)  As Heights also acknowledges, the Eighth 
Circuit has joined every other circuit that has considered the issue in rejecting that 
argument.  EEE Mins., 81 F.4th at 816-17; Zito v. N. Carolina Coastal Res. Comm’n, 
8 F.4th 281, 285 (4th Cir. 2021), cert. denied, 211 L. Ed. 2d 283, 142 S. Ct. 465 
(2021) (rejecting argument that Fifth Amendment “exempts takings claims from the 
strictures of sovereign immunity” because it is “self-executing”); Seven Up Pete 
Venture v. Schweitzer, 523 F.3d 948, 955 (9th Cir. 2008) (agreeing with every circuit 
that has addressed the issue that Eleventh Amendment bars reverse condemnation 
actions against state officials in federal court).   
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In the most recent pronouncement from this Court, the plaintiff in EEE 
Minerals brought a takings claim against the State of North Dakota and several 
officials in their official capacities.  EEE Mins., 81 F.4th at 812. Citing the decisions 
of seven other circuits, the EEE Minerals court held that the Eleventh Amendment 
bars suit against a state in federal court even if the Fifth Amendment is self-
executing.  at 815-16.  Although a petition for rehearing en banc has been filed in 
EEE Minerals, that decision remains binding precedent unless and until overruled 
by this Court en banc or abrogated by the U.S. Supreme Court. See Mader v. United 
States, 654 F.3d 794, 800 (8th Cir. 2011) (noting “cardinal rule” that one panel is 
bound by decision in prior panel).4   
Furthermore, the Supreme Court’s characterization of the Takings Clause as 
“self-executing” cannot be understood to abrogate sovereign immunity, as the 
Supreme Court has said the same about “[t]he first eight Amendments to the 
Constitution.” City of Boerne v. Flores, 521 U.S. 507, 524 (1997).  Indeed, in Reich 
v. Collins, the Supreme Court explained that the Eleventh Amendment generally 
bars tax refund claims in federal court even though there is a self-executing right to 
a refund under the Fourteenth Amendment.  513 U.S. 106, 111-14 (1994).  As 
 
4 This Court’s prior ruling that the Orders violate the Takings Clause remains 
binding, and is treated as such in this brief.  Appellees nevertheless believe that 
decision was incorrectly decided and reserve the right to litigate these substantive 
constitutional issues in any further appeals.  
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Heights acknowledges, Reich has since been cited in multiple circuits for the 
proposition that sovereign immunity bars claims against states in federal court, 
whether under the Takings Clause or other constitutional provisions.  EEE Mins., 81 
F.4th at 816; Church v. Missouri, 913 F.3d 736, 746 (8th Cir. 2019); Zito, 8 F.4th at 
285; Seven Up, 523 F.3d at 955; S & M Brands, Inc. v. Cooper, 527 F.3d 500, 512 
(6th Cir. 2008).  These cases dictate that Appellees are entitled to sovereign 
immunity here, requiring affirmance of the district court’s judgment.   
Heights incorrectly attempts to distinguish Reich based on Knick v. Township 
of Scott’s characterization of the Fifth Amendment’s takings remedy, but the Eighth 
Circuit has twice rejected the assertion that Knick affected the Eleventh Amendment 
analysis.  EEE Mins., 81 F.4th at 815-16; Pharm. Rsch. & Manufacturers of Am. v. 
Williams, 64 F.4th 932, 949 (8th Cir. 2023), pet. rehearing denied, 2023 WL 
3313605 (8th Cir. May 9, 2023).  Knick was a Section 1983 claim against a town 
and therefore did not address sovereign immunity.  EEE Mins., 81 F.4th at 815-16.  
Contrary to Heights’ argument, the Supreme Court has not “strongly suggested” a 
takings exception to sovereign immunity; none of the cases Heights cites addressed 
sovereign immunity.  (App. Br. at 12-13.)  Cedar Point Nursery, for example, sought 
prospective relief, and Stop the Beach Renourishment, Palazzolo, and Lucas 
originated in state court.  Neither of those situations applies here, as Heights chose 
to bring its claims in federal court in the first instance and this Court has already 
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decided that its prospective claims were mooted by the recission of the Orders so 
that only the damages remedy remains.  (App. 92.)   
Heights’ reliance on dicta from First English Evangelical Lutheran Church v. 
County of Los Angeles is similarly misplaced.  This Court has rejected the argument 
that First English abrogates sovereign immunity.  Church, 913 F.3d at 747.  
Critiquing the plaintiffs’ reading of First English as “too broad,” the Church court 
held that the State of Missouri retained sovereign immunity from the plaintiffs’ Sixth 
Amendment claims, notwithstanding the characterization of that constitutional right 
as “self-executing.”  Id.  See also City of Monterey v. Del Monte Dunes at Monterey, 
Ltd., 526 U.S. 687, 714 (1999) (questioning whether First English dicta about 
sovereign immunity “retains its vitality”).  This Court should likewise reject 
Heights’ reading of First English.  The district court properly granted judgment on 
the pleadings to Appellees.  
II. 
THE FOURTEENTH AMENDMENT DID NOT ABROGATE THE STATE’S 
SOVEREIGN IMMUNITY.  
Federal courts have roundly rejected Heights’ argument that the ratification 
of the Fourteenth Amendment, by itself, abrogated state sovereign immunity.  Smith 
v. Kentucky, 36 F.4th 671, 677 (6th Cir. 2022), cert. denied, 143 S. Ct. 213 (2022).  
The Fourteenth Amendment simply did not abrogate sovereign immunity, nor did 
states waive their immunity by ratifying the amendment.  Id.; Skatemore, Inc. v. 
Whitmer, 40 F.4th 727, 734 (6th Cir. 2022), cert. denied, 143 S. Ct. 527 (2022) 
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(rejecting argument that Fourteenth Amendment abrogated Eleventh Amendment 
immunity as “meritless”). 
Although it is true that the Fourteenth Amendment “fundamentally altered the 
balance of state and federal power struck by the Constitution,” any effect it has on 
sovereign immunity depends on subsequent legislation by Congress.  Seminole Tribe 
of Fla. v. Fla., 517 U.S. 44, 59 (1996) (finding that Indian Gaming Act was not valid 
abrogation of sovereign immunity). See also Quern v. Jordan, 440 U.S. 332, 342 
(1979) (cautioning against “leap[ing]” to the “conclusion that Congress intended by 
the general language of the [the Civil Rights Act of 1871] to overturn the 
constitutionally guaranteed immunity of the several States.”).  “Importantly, the 
Supreme Court has held that the Fourteenth Amendment itself does not abrogate 
sovereign immunity merely through its ratification by the states; rather, Congress 
may ‘carve out’ such an exception via statutes promulgated under its enforcement 
authority.”  Smith, 36 F.4th at 677 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 451–
52, (1976)).  See also  Klingler v. Dir., Dep’t of Revenue, State of Mo., 455 F.3d 888, 
893 (8th Cir. 2006) (recognizing that Section 5 “allows Congress to abrogate 
sovereign immunity to enforce that amendment's provisions.”).  
Heights implicitly acknowledges that Congress has not enacted legislation to 
allow its claims.  (App. Br. at 16.)  Heights’ suggestion that the Court can overlook 
that step is contrary to decades of Supreme Court precedent that has spelled out the 
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precise conditions under which Congress can exercise its Fourteenth Amendment 
authority.  Congress’ power under the Fourteenth Amendment is the “power to 
enforce, by appropriate legislation, the provisions of this article.”  U.S. Const. 
Amend. 14, §5.  City of Boerne, 521 U.S. at 519 (“The Fourteenth Amendment's 
history confirms the remedial, rather than substantive, nature of the Enforcement 
Clause.”).  Sovereign immunity can be abrogated “[w]hen Congress enacts 
appropriate legislation,” and not until then.  Alden, 527 U.S. at 756; Church, 913 
F.3d at 747 (recognizing that Congress can create a “statutory enforcement 
mechanism” to enforce the Fourteenth Amendment).  To exercise its enforcement 
power, “Congress must identify a pattern of constitutional violations and tailor a 
remedy congruent and proportional to the documented violations.”  Coleman v. Ct. 
of Appeals of Maryland, 566 U.S. 30, 43 (2012).  Without such legislation (which 
Heights acknowledges does not exist), the Fourteenth Amendment does not 
authorize federal courts to hear Heights’ takings claim.   
Heights’ suggestion that sovereign immunity for takings was abrogated in the 
“plan of the [Constitutional] Convention” is also incorrect.  As the Supreme Court 
has made clear, the circumstances in which states consented to waive sovereign 
immunity in the “plan of the [Constitutional] Convention” are narrow.   Torres v. 
Texas Dep’t of Pub. Safety, 142 S. Ct. 2455, 2462 (2022) (finding “plan of the 
Convention” immunity waiver in USERRA based on federal government’s 
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15
constitutional authority to raise armies).  They include the creation of a national 
bankruptcy system, the exercise of federal eminent domain over state lands, and the 
raising of armies.  Id.  See also Skatemore, 40 F.4th at 735 (rejecting argument that 
state waived sovereign immunity for private takings claims in “plan of the 
Convention”); Wright-Gottshall v. New Jersey, No. 3:21-CV18954-PGS-DEA, 2023 
WL 3183288, at *7 (D.N.J. May 1, 2023) (applying sovereign immunity because 
constitutional challenge to COVID testing “does not even remotely fall within any 
recognized class of suits to which States consented under the plan of the 
Convention.”).  The Fifth Amendment could not possibly have been a “plan of the 
Convention” waiver because, as Heights concedes, the Fifth Amendment originally 
applied only to the federal government.  (App. Br. 14.)  
III. 
HEIGHTS’ ARGUMENT THAT ITS DAMAGES CLAIM WAS BROUGHT 
“DIRECTLY” UNDER THE FIFTH AMENDMENT IS BOTH FORFEITED AND 
UNSUPPORTED. 
Heights also seeks to recast its takings claim as a direct action under the Fifth 
Amendment, a claim that is neither cognizable nor properly before this Court.  (App. 
Br. at 13-14.)  As an initial matter, Heights forfeited its argument that the Fifth 
Amendment provides a direct cause of action because that theory was not briefed or 
argued below.  This Court “will not ordinarily consider arguments raised for the first 
time on appeal” unless review is necessary “to prevent a miscarriage of justice.” 
Hiland Partners GP Holdings, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 
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16
847 F.3d 594, 598 (8th Cir. 2017) (internal quotations omitted).  United States v. 
Nunez-Hernandez, 43 F.4th 857, 859 (8th Cir. 2022) (noting that Eighth Circuit is a 
court of “review, ... not first view” and holding that argument not made in the district 
court was forfeited).  Although Heights pleaded separate counts under the Fifth 
Amendment and § 1983, it never argued that its money damages claim was 
separately cognizable under the Fifth Amendment itself, and it characterized its 
claim as a § 1983 action “alleging violations of the Fifth Amendment Takings 
clause.”  (Pl. Mem. Opp. Judgment on Pl., Appellees’ Appendix at 8-10, R. Doc. 71, 
at 7-9).  The district court analyzed Heights’ claim “an action under Section 1983.”  
(Add. 9.)  There is no “miscarriage of justice” in requiring Heights, which was 
represented by counsel at every stage of these proceedings, to have presented its 
“direct action” argument to the district court in the first instance.   
In any event, this Court should reject Heights’ argument “no legislation is 
needed” to authorize its takings claim (App. Br. at 14), because Knick itself 
recognized that a plaintiff whose property has been taken without just compensation 
“may bring his claim in federal court under § 1983 at that time.” Knick, 139 S. Ct 
2162 at 2168 (2019). “[T]here is no express cause of action under the Takings 
Clause…”  Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1328 n 
12 (2020) (recognizing that takings claims against the federal government are 
actionable under the Tucker Act).  The U.S. Supreme Court has generally been 
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reluctant to read private rights of action into the Constitution, allowing claims 
against the federal government only when authorized by statute or in the Bivens 
context.  See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020).5 
Rather, as the federal courts of appeals have generally held, “Section 1983 is 
the exclusive remedy for constitutional violations” by state and local government 
actors. Smith, 36 F.4th at 675.  See also Johnson v. City of Shelby, Miss., 574 U.S. 
10, 11 (2014) (per curiam) (holding that plaintiffs were not required to cite § 1983 
in their complaint to seek damages for violations of constitutional rights).  Heights 
does not (and could not) challenge the well-established rule that “neither a State nor 
its officials acting in their official capacities are ‘persons’ under § 1983.”  Will v. 
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Glasgow v. Nebraska, 819 F.3d 
436, 441 (8th Cir. 2016) (quoting Will).  That rule precludes relief here, as Heights’ 
takings claim was necessarily brought under § 1983.  
CONCLUSION 
 
Heights’ damages claim against Appellees is barred by the Eleventh 
Amendment.  This Court has routinely affirmed the dismissal of similar claims.  It 
should do so again here, and affirm the district court’s grant of judgement on the 
pleadings.   
 
5 The Supreme Court recently granted certiorari to decide if a non-statutory cause of 
action exists under the Takings Clause.  See Devillier v. Texas, 22-913, cert. granted, 
--- S. Ct. ----, 2023 WL 6319651 (Sept. 29, 2023). 
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18
 
Dated:  October 23, 2023 
Respectfully submitted, 
 
KEITH ELLISON 
Attorney General 
State of Minnesota 
 
 
 
/s/Michael Goodwin 
 
MICHAEL GOODWIN 
Assistant Attorney General 
Atty. Reg. No. 0390244 
 
LIZ KRAMER 
Solicitor General 
Atty. Reg. No. 0325089 
 
445 Minnesota Street, Suite 1400 
St. Paul, MN 55101-2131 
(651) 757-1456 (Voice) 
(651) 296-7438 (Fax) 
michael.goodwin@ag.state.mn.us 
liz.kramer@ag.state.mn.us 
 
ATTORNEYS FOR APPELLEES 
 
 
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CERTIFICATE OF COMPLIANCE 
WITH FRAP 32 
1. 
This brief complies with the type-volume limitation of Fed. R. App. 
P. 32(a)(7)(B) because this brief contains 4,065 words, excluding the parts of the 
brief exempted by Fed. R. App. P. 32(f). 
2. 
This brief complies with the typeface requirements of Fed. R. App. 
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 
brief has been prepared in a proportionally spaced typeface using Microsoft Word 
365 in 14 pt Times New Roman font. 
 
 
/s/ Michael Goodwin 
 
MICHAEL GOODWIN 
Assistant Attorney General 
 
 
 
 
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CERTIFICATE OF COMPLIANCE 
WITH 8th Cir. R. 28A(h)(2) 
 
The undersigned, on behalf of the party filing and serving this brief, certifies 
that the brief has been scanned for viruses and that the brief is virus-free. 
 
 
/s/ Cole M. Werner 
 
COLE M. WERNER 
 
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