Appellant's reply 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 REPLY 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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TABLE OF CONTENTS 
TABLE OF AUTHORITIES .................................................................................... ii 
INTRODUCTION ..................................................................................................... 1 
ARGUMENT ............................................................................................................. 2 
I. THE OFFICIALS FAIL TO DEMONSTRATE THAT REICH’S  
DUE PROCESS ANALYSIS APPLIES TO TAKINGS CLAIMS ................ 2 
A. The Officials Misrepresent Reich ............................................................... 2 
B. Reich Is Inapposite to Takings Cases Because, Unlike the  
Due Process Tax Remedy, the Just Compensation Remedy  
Is Self-Executing in Federal Court ............................................................. 4 
II. THE OFFICIALS WAIVED THEIR CHALLENGE TO  
HEIGHTS’ CAUSE OF ACTION .................................................................. 7 
CONCLUSION .......................................................................................................... 8 
CERTIFICATE OF COMPLIANCE ......................................................................... 9 
CERTIFICATE OF SERVICE ................................................................................ 10 
CERTIFICATE THAT DOCUMENT IS VIRUS FREE ........................................ 11 
 
 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Cases 
Alden v. Maine, 
527 U.S. 706 (1999) .............................................................................................. 3 
Armstrong v. United States,  
364 U.S. 40 (1960) ................................................................................................ 6 
Barron ex rel. Tiernan v. Mayor of Baltimore, 
32 U.S. (7 Pet.) 243 (1833) ................................................................................... 5 
Chicago, B. & Q.R. Co. v. City of Chicago, 
166 U.S. 226 (1897) .............................................................................................. 5 
First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 
482 U.S. 304 (1987) .............................................................................................. 5 
Knick v. Township of Scott, 
139 S. Ct. 2162 (2019) .......................................................................................... 4 
Mississippi & Rum River Boom Co. v. Patterson, 
98 U.S. (8 Otto) 403 (1878) .................................................................................. 1 
Reich v. Collins, 
513 U.S. 106 (1994) .......................................................................................... 1, 4 
Vill. of Norwood v. Baker, 
172 U.S. 269 (1898) ...................................................................................... 1–2, 6 
Wisconsin Cent. Ltd. v. Pub. Serv. Comm’n of Wisconsin,  
95 F.3d 1359 (7th Cir. 1996) ................................................................................ 5 
Other Authorities 
27 States. Cong. Globe, 39th Cong., 1st Session (1866) ....................................... 5–6 
de Vattel, Emer, The Law of Nations, Book 1 (1758) ............................................... 6 
 
 
 
 
 
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INTRODUCTION 
In its Response Brief, Appellees (Officials) fail to bear their burden to 
demonstrate that sovereign immunity principles shield it from Appellant Heights 
Apartments’ (Heights) claim for just compensation for the taking of its property. The 
Officials rely heavily on a few circuit decisions, which themselves rest on Reich v. 
Collins, 513 U.S. 106, 109–10 (1994), for the proposition that sovereign immunity 
bars takings claims. But Reich has no bearing on the issue of whether enactment of 
the Fourteenth Amendment carved out an exception to sovereign immunity in 
takings cases by applying the just compensation obligation to the states. Circuit 
decisions that rely on Reich to hold that sovereign immunity precludes takings 
claims seeking just compensation are wrong. 
The concept of “just compensation” has always been a condition of the power 
to take property for public use—even for sovereign governments. Mississippi & Rum 
River Boom Co. v. Patterson, 98 U.S. (8 Otto) 403, 406 (1878) (“The right of 
eminent domain, that is, the right to take private property for public uses, appertains 
to every independent government. . . . [I]t is an attribute of sovereignty. The clause 
found in the Constitutions of the several States providing for just compensation for 
property taken is a mere limitation upon the exercise of the right.”). The states, as 
sovereigns, can take property only on the condition that they pay for it. See Vill. of 
Norwood v. Baker, 172 U.S. 269, 277 (1898) (“It has been adjudged that the due 
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process of law prescribed by that [Fourteenth] amendment requires compensation to 
be made or secured to the owner when private property is taken by a state, or under 
its authority, for public use.”). While the Supreme Court has not yet directly held 
that sovereign immunity does not cover takings claims seeking compensation, no 
other conclusion is doctrinally tenable. The Fourteenth Amendment applies the Just 
Compensation Clause and its damages payment requirement to states. Therefore, 
when the states enacted the Fourteenth Amendment, they consented to the just 
compensation condition on taking property. 
ARGUMENT 
I. 
THE OFFICIALS FAIL TO DEMONSTRATE THAT REICH’S 
DUE PROCESS ANALYSIS APPLIES TO TAKINGS CLAIMS 
A. 
The Officials Misrepresent Reich 
At bottom, the Officials’ defense of the application of sovereign immunity to 
takings cases like this one rests wholly on the Due Process Clause analysis in Reich. 
The Officials rely on circuit cases that rest on Reich, Response at 9, and on Reich 
itself. But their arguments fail because they misconstrue Reich and fail to rebut 
Heights’ objections to the application of Reich in takings cases. Id. at 10. 
The deficiencies in the Officials’ approach to Reich are apparent in their initial 
description of Reich. The Officials state: “[I]n Reich v. Collins, the Supreme Court 
explained that the Eleventh Amendment generally bars tax refund claims in federal 
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court even though there is a self-executing right to a refund under the Fourteenth 
Amendment.” Response at 10 (emphasis added). This statement misleadingly 
implies that there is a self-executing due process tax refund remedy in federal court 
under the Fourteenth Amendment. This in turn primes one to think wrongly that the 
Due Process Clause is analogous to the Just Compensation Clause and that Reich’s 
analysis can apply to both clauses.  
But the implied proposition in the Officials’ description of Reich is false; there 
is no self-executing due process right to a tax refund in federal court. The 
constitutional right to seek a tax refund under the Due Process Clause applies only 
in state courts. Alden v. Maine, 527 U.S. 706, 740 (1999) (noting, in discussing 
Reich, that “due process requires the State to provide the remedy it has promised”) 
(emphasis added; citation omitted).  
Since the Due Process Clause supplies a self-executing damages remedy in 
state court, Alden, 527 U.S. at 740, sovereign immunity must yield in state court in 
tax refund cases, id. (explaining that sovereign immunity did not apply in Reich 
because “[t]he obligation” to pay damages in state court “arises from the 
Constitution itself”). But because the due process tax refund remedy is not self-
executing in federal court, there is no basis to exempt tax refund claims from 
sovereign immunity in federal court. Thus, Reich’s sovereign immunity analysis is 
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defensible in the due process context. 513 U.S. at 109–10, but it does not resolve the 
tension between sovereign immunity and the Just Compensation Clause. 
B. 
Reich Is Inapposite to Takings Cases Because, Unlike the Due 
Process Tax Remedy, the Just Compensation Remedy Is Self-
Executing in Federal Court 
The Officials also mistakenly claim that Heights is arguing that Knick 
resolved the sovereign immunity/takings issue against immunity. Yet, this is another 
“red-herring” argument. Response at 11. Heights does not contend that Knick 
directly addressed or resolved any sovereign immunity issues. Heights argues 
instead that Knick undercuts Reich in the takings context by confirming that, unlike 
the Due Process Clause remedy in Reich, the just compensation remedy is self-
executing in federal court. Knick v. Township of Scott, 139 S. Ct. 2162, 2170–73 
(2019). Knick shattered the fiction that the Reich tax refund remedy and the just 
compensation remedy are analogous, which in turn renders Reich inapposite to the 
takings/sovereign immunity issue. 
The Officials never squarely address this logic. That is, they never address the 
reality that the due process tax remedy is distinct from the just compensation remedy 
because the former is “self-executing” only in state court, while the latter is “self-
executing” in federal court. They simply ignore this critical distinction and presume 
that takings and due process remedies are equivalent, thus justifying reliance on 
Reich’s due process sovereign immunity analysis to resolve the takings questions. 
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But Knick confirms that Reich is irrelevant to the takings/sovereign immunity issue 
in this case by confirming that due process and takings remedies are not similar. 
Since Reich is inapposite, this Court must resolve the issue by reference to 
sovereign immunity and Just Compensation Clause precedent, rather than by 
reliance on Reich. As outlined in Appellant’s Opening Brief, the precedent is clear 
that (1) the Just Compensation Clause gives takings plaintiffs a right to seek damages 
for an uncompensated taking, First English Evangelical Lutheran Church of 
Glendale v. Los Angeles County, 482 U.S. 304, 315 (1987) (A “landowner is entitled 
to bring an action” due to the “‘the self-executing character of the constitutional 
provision with respect to compensation . . . .’”); Wisconsin Cent. Ltd. v. Pub. Serv. 
Comm’n of Wisconsin, 95 F.3d 1359, 1368 (7th Cir. 1996) (citing First English, 482 
U.S. at 316 & n.9), and (2) states are bound by the Just Compensation Clause through 
the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 
226 (1897). 
Indeed, at the time of the enactment of the Fourteenth Amendment it was 
understood that it would subject states to the Takings Clause. For instance, when 
John Bingham, a principal drafter of the Fourteenth Amendment, defended the 
Amendment, he referred to the need to correct Barron ex rel. Tiernan v. Mayor of 
Baltimore, 32 U.S. (7 Pet.) 243 (1833), which held that States were not subject to 
the Takings Clause. 27 States. Cong. Globe, 39th Cong., 1st Session 1089–90 (1866); 
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see also, id. at 1090 (“[T]he people are without remedy. . . . [T]he State Legislatures 
may by direct violations of their duty and oaths avoid the requirements of the 
Constitution[.]”). Thus, one of the principal purposes of the Fourteenth Amendment 
was to enshrine the understanding that the states’ sovereign power to take property 
was conditioned on just compensation. See Vill. Of Norwood, 172 U.S. at 277 
(“[T]he due process of law prescribed by that amendment requires compensation to 
be made or secured to the owner when private property is taken by a state, or under 
its authority, for public use.”) (emphasis added); see generally, Emer de Vattel, The 
Law of Nations, Book 1, ch. 20 § 244 (1758) (“If the sovereign disposes of the public 
property in virtue of his eminent domain, the alienation is valid, as having been made 
with sufficient powers. ¶ When, in case of necessity, he disposes in like manner of 
the possessions of a community, or an individual, the alienation will, for the same 
reason, be valid. But justice requires that this community, or this individual, be 
indemnified at the public charge[.]”). 
The Officials’ belief that states are “immune” from a suit to recover 
compensation for a taking of property is diametrically opposed to the Fourteenth 
Amendment, the Supreme Court’s takings precedent, and fundamental principles of 
fairness and justice. Armstrong v. United States, 364 U.S. 40, 49 (1960) (There is a 
“constitutional obligation to pay just compensation.”).  
 
 
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II. 
THE OFFICIALS WAIVED THEIR 
CHALLENGE TO HEIGHTS’ CAUSE OF ACTION 
The Officials’ final argument is a new one: it contends that Heights cannot 
bring its takings claim directly under the Fifth Amendment. Response at 16–17. But 
the Officials did not raise this issue below, and the district court did not address it. 
The Officials have waived the issue and it is thus not properly before this Court on 
appeal. 
 
The irony is that the Officials claim that Heights “forfeited” its claim arising 
“directly” under the Fifth Amendment by not more fully briefing whether such a 
claim is viable. But that is not how it works at the judgment on the pleadings stage. 
As the Officials concede, Heights properly pled a takings claim directly under the 
Constitution. Response at 16 (“Heights pleaded separate counts under the Fifth 
Amendment and § 1983[.]”). The Officials then had a chance to challenge Heights’ 
direct cause of action in their two motions seeking dismissal, thus making it an issue 
below, but they did not do so. See R. Doc. 18 and R. Doc. 58. Due to this failure, the 
issue of the propriety of the direct cause of action was never considered in the district 
court. The issue is only coming up now because the Officials saw that the Supreme 
Court recently granted certiorari in a case questioning whether the Fifth Amendment 
provides a direct cause of action, and they suddenly realized that might provide a 
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defense in this case. See Response at 17 n.5. But it is too late. Since the issue was 
not presented or decided below, it is not present here. 
CONCLUSION 
The Court should reverse and remand for further proceedings in the district 
court.  
 
DATED: November 17, 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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CERTIFICATE OF COMPLIANCE 
1. 
This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) because it contains 1,717 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 
O365 in 14-point Times New Roman font. 
 
Signature /s/ J. David Breemer  
 
Dated: November 17, 2023. 
 
 
J. DAVID BREEMER 
 
 
 
 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on November 17, 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. 
 
/s/ J. David Breemer  
 
J. DAVID BREEMER 
 
 
 
 
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CERTIFICATE THAT DOCUMENT IS VIRUS FREE 
 
I hereby certify that on November 17, 2023, this document was scanned for 
viruses using Symantec and is virus free. 
 
/s/ J. David Breemer  
 
J. DAVID BREEMER 
 
 
Appellate Case: 23-2686     Page: 14      Date Filed: 11/20/2023 Entry ID: 5337018

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