No.

_____________

In The
Supreme Court of the United States
____________________

MICHAEL ZITO AND CATHERINE ZITO,

Petitioners,

v.

NORTH CAROLINA
COASTAL RESOURCES COMMISSION,
Respondent.
____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Fourth Circuit
____________________

PETITION FOR WRIT OF CERTIORARI

____________________

J. DAVID BREEMER
Counsel of Record
GLENN E. ROPER
ERIN E. WILCOX
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
Counsel for Petitioners
 i

QUESTION PRESENTED
Whether the Fourteenth Amendment’s
incorporation of the “self-executing” Just
Compensation Clause abrogates state sovereign
immunity from federal takings claims?
 ii

LIST OF ALL PARTIES

The parties to the judgment from which review is
sought are Michael and Catherine Zito. They were
parties in all proceedings below.
Respondent is the North Carolina Coastal
Resources Commission.

RULE 14.1(b)(iii) STATEMENT

The proceedings in the Eastern District of North
Carolina and Fourth Circuit identified below are
directly related to the above-captioned case in this
Court.
Zito v. North Carolina Coastal Resources
Commission, 8 F.4th 281 (4th Cir. Aug. 9, 2021)
Zito v. North Carolina Coastal Resources
Commission, 449 F. Supp. 3d 567 (E.D.N.C.
Mar. 27, 2020)
 iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

LIST OF ALL PARTIES ............................................. ii
RULE 14.1(b)(iii) STATEMENT ................................ ii
TABLE OF AUTHORITIES ....................................... v
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 1
CONSTITUTIONAL PROVISIONS AT ISSUE ........ 1
INTRODUCTION ....................................................... 2
STATEMENT OF THE CASE.................................... 5
I. FACTUAL BACKGROUND ............................ 6
II. PROCEDURE................................................. 10
A. The District Court Decision ........................ 10
B. The Fourth Circuit Opinion ........................ 11
REASONS FOR GRANTING THE PETITION ....... 12
I. THE DECISION BELOW
CONFLICTS WITH THIS COURT’S
JUST COMPENSATION CLAUSE
PRECEDENT ................................................. 13
A. The Principles at Issue ................................ 13
B. The Decision Below Conflicts With
This Court’s Precedent ................................ 15
 iv

1. The decision conflicts with this

Court’s understanding of the
Just Compensation Clause ................... 15
2. The Fourth Circuit decision is
incompatible with Knick ....................... 20
3. The decision below conflicts with
precedent distinguishing takings
and due process concepts ...................... 22
II. THE DECISION BELOW RAISES AN
IMPORTANT QUESTION AS TO
WHETHER IMMUNITY ALLOWS
STATES TO EVADE THE DUTY
TO PAY FOR TAKINGS IN
FEDERAL COURT ........................................ 24
A. The Decision Below Renders the
Takings Clause Inferior to Other
Constitutional Rights .................................. 24
B. State Court Procedures for Seeking
Compensation for a State Taking Are
Often More Burdensome Than a Suit
Under the Federal Takings Clause ............ 26
III. FEDERAL COURTS ARE IN
CONFLICT ON THE ISSUE ......................... 29
CONCLUSION.......................................................... 32
APPENDIX

Opinion, U.S. Court of Appeals for the Fourth

Circuit, filed August 9, 2021 ............................ A-1
Order, U.S. District Court for the Eastern District of
North Carolina, filed March 27, 2020 ............. B-1
 v

TABLE OF AUTHORITIES

Cases
Alden v. Maine,
527 U.S. 706 (1999) .................................. 13-14, 16
Allen v. Cooper, No. 5:15-CV-627-BO,
2021 WL 3682415
(E.D.N.C. Aug. 18, 2021) ................................ 29-30
Austin v. Arkansas State Highway Comm’n,
895 S.W.2d 941 (Ark. 1995) ................................ 26
Barron v. City of Baltimore,
32 U.S. (7 Pet.) 243 (1833) .................................. 16
Bay Point Props., Inc. v.
Mississippi Transp. Comm’n,
937 F.3d 454 (5th Cir. 2019) ................................. 5
California Coastal Comm’n v. Superior Court,
210 Cal. App. 3d 1488 (1989) .............................. 27
Chicago, B. & Q.R. Co. v. City of Chicago,
166 U.S. 226 (1897) ............................................. 16
City of Monterey v. Del Monte Dunes
at Monterey, Ltd.,
526 U.S. 687 (1999) ......................................... 3, 18
Community Housing Improvement
Program v. City of New York,
492 F. Supp. 3d 33 (E.D.N.Y. 2020) ................... 2-4
Devillier v. Texas, No. 3:20-cv-00223,
2021 WL 3889487
(S.D. Tex. July 30, 2021) ................................ 30-31
 vi

DLX, Inc. v. Kentucky,

381 F.3d 511 (6th Cir. 2004) ......................... 23, 26
Dolan v. City of Tigard,
512 U.S. 374 (1994) ............................................ 2-3
Edelman v. Jordan,
415 U.S. 651 (1974) ................................... 2, 14, 18
Esposito v. South Carolina Coastal Council,
939 F.2d 165 (4th Cir. 1991) ............................... 26
Ex parte Young,
209 U.S. 123 (1908) ......................................... 4, 14
Fair Assessment in Real Estate Ass’n, Inc. v.
McNary, 454 U.S. 100 (1981) .............................. 23
First English Evangelical Lutheran Church
of Glendale v. County of Los Angeles,
482 U.S. 304 (1987) .................................... 3, 15-18
Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) ............................................. 19
Florida Dep’t of Agric. & Consumer Services
v. Dolliver,
283 So. 3d 953 (Fla. Dist. Ct. App. 2019) ........... 27
Ford Motor Co. v. Dep’t of Treasury of Indiana,
323 U.S. 459 (1945) ................................. 14, 18, 22
Hair v. United States,
350 F.3d 1253 (Fed. Cir. 2003)....................... 31-32
Hans v. Louisiana,
134 U.S. 1 (1890) ................................................. 13
Hess v. Port Authority Trans–Hudson Corp.,
513 U.S. 30 (1994) ............................................... 14
 vii

Hilton v. South Carolina Public

Railways Comm’n,
502 U.S. 197 (1991) ........................................ 13-14
Hise v. Tennessee,
968 S.W.2d 852 (Tenn. Ct. App. 1997)................ 26
Home Tel. & Tel. Co. v. City of Los Angeles,
227 U.S. 278 (1913) ............................................. 19
Hutto v. S.C. Ret. Sys.,
773 F.3d 536 (4th Cir. 2014) .......................... 10-11
Jacobs v. United States,
290 U.S. 13 (1933) ............................................... 15
Jevons v. Inslee, No. 1:20-CV-3182-SAB,
2021 WL 4443084
(E.D. Wash. Sept. 21, 2021) ................................ 25
Knick v. Township of Scott,
139 S. Ct. 2162 (2019) .................................. passim
Knick v. Township of Scott, No. 17-647,
2018 WL 2733954 (U.S. June 4, 2018) ............... 27
Leistiko v. Sec’y of Army,
922 F. Supp. 66 (N.D. Ohio 1996) ....................... 31
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) ............................................. 23
Local 860 Laborers’ Int’l Union of N. America
v. Neff, No. 1:20-CV-02714,
2021 WL 2477021
(N.D. Ohio June 17, 2021) ................................... 25
Long v. Area Manager, Bureau of Reclamation,
236 F.3d 910 (8th Cir. 2001) ............................... 26
 viii

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ........................................... 18
Manning v. N.M. Energy, Minerals &
Natural Res. Dep’t.,
144 P.3d 87 (N.M. 2006) ...................................... 19
Martin v. Hunter’s Lessee,
14 U.S. (1 Wheat.) 304 (1816) ............................. 27
McKesson Corp. v. Div. of Alcoholic
Beverages & Tobacco,
496 U.S. 18 (1990) ............................................... 22
Milliken v. Bradley,
433 U.S. 267 (1977) ............................................. 14
Mitchum v. Foster,
407 U.S. 225 (1972) ............................................. 19
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ............................................. 18
Pharmaceutical Research & Mfrs. of America
v. Williams, No. 20-1497,
2021 WL 963760 (D. Minn. Mar. 15, 2021) ........ 25
Reich v. Collins,
513 U.S. 106 (1994) .............................. 2, 11, 22-23
Seven Up Pete Venture v. Schweitzer,
523 F.3d 948 (9th Cir. 2008) ...................... 4, 23-24
Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency,
535 U.S. 302 (2002) ....................................... 16, 18
Williamson County Reg’l Planning Comm’n
v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985) ....................................... 20, 28
 ix

U.S. Constitution
U.S. Const. amend. V ............................................ 1, 30
U.S. Const. amend. XI ................................................ 1
U.S. Const. amend. XIV, § 1 ..................................... 16
Statutes
28 U.S.C. § 1254(1) ..................................................... 1
28 U.S.C. § 1331 .......................................................... 1
15A NCAC 7J.0201 ..................................................... 9
15A NCAC 7J.0210 ..................................................... 8
15A NCAC 7H.0305(a)(6) ........................................... 8
15A NCAC 7H.0306(a)(11) ......................................... 8
N.C. Gen. Stat. § 113A-100, et seq. ............................ 7
N.C. Gen. Stat. § 113A-121(b) .................................... 9
N.C. Gen. Stat. § 113A-121.1 ..................................... 9
Other Authorities
Amar, Akhil Reed,
The Bill of Rights: Creation
and Reconstruction (1998)................................... 19
Amicus Brief of the Board of County
Commissioners of the County of
La Plata, et al., in Support of Respondents,
Palazzolo v. Rhode Island, No. 99-2047,
2001 WL 15620 (U.S. Jan. 3, 2001) .................... 18
 x

Berger, Eric, The Collision of the

Takings and State Sovereign
Immunity Doctrines,
63 Wash. & Lee L. Rev. 493 (2006) ........... 3, 15, 17
Brief for the United States as Amicus
Curiae Supporting Appellee, First
English Evangelical Lutheran
Church of Glendale v. County of
Los Angeles, No. 85-1199,
1986 WL 727420 (U.S. Nov. 4, 1986) ............. 17-18
Grant, Eric, A Revolutionary View of the
Seventh Amendment and the Just
Compensation Clause,
91 Nw. U. L. Rev. 144 (1996) ......................... 19-20
Jackson, Vicki C. Jackson, The Supreme
Court, the Eleventh Amendment, and
State Sovereign Immunity,
98 Yale L.J. 1 (1988) ............................................ 18
Seamon, Richard H., The Asymmetry
of State Sovereign Immunity,
76 Wash. L. Rev. 1067 (2001).......................... 3, 15
Struve, Catherine T., Turf Struggles: Land,
Sovereignty, and Sovereign Immunity,
37 New Eng. L. Rev. 571 (2003) .......................... 18
1 Tribe, Laurence H., American
Constitutional Law (3d ed. 2000) ........................ 18
 1

PETITION FOR WRIT OF CERTIORARI

Michael and Catherine Zito respectfully petition
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The opinion of the court of appeals is reported at
8 F.4th 281 and reprinted at App. A. The order of the
district court granting Respondent’s motion to dismiss
is reported at 449 F. Supp. 3d 567 and reprinted at
App. B.
JURISDICTION
The district court had jurisdiction over this case
under 28 U.S.C. § 1331 and the Fifth Amendment to
the United States Constitution. The judgment of the
court of appeals was entered on August 9, 2021. App.
A. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISIONS AT ISSUE
The Fifth Amendment to the Constitution
provides, “nor shall private property be taken for
public use, without just compensation.” U.S. Const.
amend. V.
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.”
 2

INTRODUCTION
This case presents an important and persistent
question as to whether sovereign immunity overrides
the “self-executing” constitutional right to just
compensation for a taking when a state takes
property. The Just Compensation Clause provides
property owners with a monetary remedy whenever
the government takes property, Knick v. Township of
Scott, 139 S. Ct. 2162, 2171-72 (2019), and the
Fourteenth Amendment subjects states to this
compensation mandate. Dolan v. City of Tigard, 512
U.S. 374, 384 n.5 (1994). At the same time, sovereign
immunity bars suits against states for damages.
Edelman v. Jordan, 415 U.S. 651, 663 (1974). There is
thus “obvious tension” between these two
constitutional principles. Community Housing
Improvement Program v. City of New York (CHIP),
492 F. Supp. 3d 33, 40 (E.D.N.Y. 2020).
In the decision below, the Fourth Circuit held that
sovereign immunity precludes an unconstitutional
takings claim against a state in federal court when a
remedy exists in state court. App. A-13-14, 19. In so
holding, the court relied primarily on this Court’s
decision in Reich v. Collins, 513 U.S. 106 (1994). Reich
recognizes that the Due Process Clause supplies a
refund remedy for unconstitutionally appropriated
taxes in state court, but that sovereign immunity
would bar a refund claim in federal court. Id. at 110.
The court below held that Reich applies in the takings
context, and that the application of immunity to bar a
takings claim in federal court properly “reconcile[s]”
the “tension” between the Just Compensation Clause
and sovereign immunity.
 3

The Fourth Circuit’s approach is not consistent

with this Court’s precedent. First, that precedent
establishes that the Just Compensation Clause
supplies a “self-executing,” monetary remedy for every
taking. First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 315-
16 (1987). Second, the Court has held that the just
compensation remedy is immediately actionable in
federal court when a taking occurs. Knick, 139 S. Ct.
at 2171-73. Finally, it has held that enactment of the
Fourteenth Amendment’s Due Process Clause
incorporated the Just Compensation Clause and thus
bound states to the federal just compensation
requirement for a taking of property. Dolan, 512 U.S.
at 384 n.5.
This Court has previously signaled that the
foregoing line of precedent leaves no room for the
argument that states enjoy sovereign immunity from
suits under the Takings Clause. First English, 482
U.S. at 315-16 & n.9 (rejecting Solicitor General’s
argument that the Just Compensation Clause cannot
be construed as remedial provision because that
would conflict with state immunity); City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
714 (1999) (questioning whether immunity “retains
its vitality” in the takings context). Nevertheless, the
Court has “surprisingly” never directly resolved the
conflict between sovereign immunity and the Just
Compensation Clause. Richard H. Seamon, The
Asymmetry of State Sovereign Immunity, 76 Wash. L.
Rev. 1067, 1067-68 (2001); Eric Berger, The Collision
of the Takings and State Sovereign Immunity
Doctrines, 63 Wash. & Lee L. Rev. 493, 496 (2006) (the
Court has “avoided the issue”); CHIP, 492 F. Supp. 3d
 4

at 40 (noting the Court has not “decisively resolved the

conflict”).
The time has come to address the issue. The
question presented has percolated through the federal
appellate courts, and most have employed the same
Reich-based reasoning, and come to the same
incorrect conclusion as the court below—that
sovereign immunity trumps the Just Compensation
Clause in federal court. CHIP, 492 F. Supp. 3d at 40
(The “weight of authority among the circuits” is that
“sovereign immunity trumps the Takings Clause—at
least where . . . the state provides a remedy of its own
for an alleged violation.”); Seven Up Pete Venture v.
Schweitzer, 523 F.3d 948, 955 (9th Cir. 2008) (federal
appellate courts have “expressly or implicitly applied
the Reich rationale and held that the Eleventh
Amendment bars Fifth Amendment reverse
condemnation claims”).
Not only is that conclusion incompatible with the
character, scope, and importance of the right to just
compensation, it ultimately returns the Takings
Clause to second-class constitutional status by
stripping it of federal judicial protection when states
take property. See Knick, 129 S. Ct. at 2169-70. Other
constitutional rights are protected from state
intrusion in federal court through suits for injunctive
relief under Ex parte Young, 209 U.S. 123, 159 (1908).
But equitable relief is not available in most takings
cases. Knick, 139 S. Ct. at 2176. If sovereign immunity
bars federal actions for just compensation, as the
decision below holds, federal courts cannot protect the
Takings Clause from state violations—even as those
courts vindicate other constitutional rights under Ex
parte Young. This is inconsistent with the status of the
 5

Takings Clause and leaves property owners

dependent on a maze of byzantine state court
procedures for vindication of their federal right to just
compensation.
The Court should grant the Petition to confirm
what enactment of the Fourteenth Amendment and
this Court’s decisions plainly suggest: takings claims
invoking the Just Compensation Clause against
states are a constitutionally grounded exception to
sovereign immunity. This will resolve confusion and
conflict in this area, put the Takings Clause on par
with other constitutional rights with respect to federal
protection, and ensure that the restraints on state
power promised by the Fourteenth Amendment do not
ring hollow. Bay Point Props., Inc. v. Mississippi
Transp. Comm’n, 937 F.3d 454, 456 n.1 (5th Cir. 2019)
(acknowledging that “‘the tension’ between state
sovereign immunity and the right to just
compensation . . . is [an issue] for the Supreme
Court”).
STATEMENT OF THE CASE
This case arises from the North Carolina Coastal
Resources Commission’s (Commission) refusal to
permit Michael and Catherine Zito (Zitos) to rebuild a
small beachfront home after a fire destroyed it in
2016. App. A-5. Because the Commission’s permit
denial stripped the Zitos’ lot of all economically
beneficial use, they Zitos sued in federal court,
alleging that the Commission’s action caused an
unconstitutional taking of their property. App. A-2.
The district court granted a motion to dismiss,
concluding that sovereign immunity shielded the
Commission from the Zitos’ takings claim in federal
 6

court. App. B-2. The Fourth Circuit affirmed. App. A-

20.
I.
FACTUAL BACKGROUND
The Town of Nags Head is a small community on
North Carolina’s fabled Outer Banks. Resting along
the state’s eastern edge, these barrier islands draw
tourists and locals alike to their warm sand and
waters.
In 2008, the Zitos purchased a 1,700-square-foot
beach house at 10224 E. Seagull Drive, Nags Head to
use as a family vacation home and rental property.
App. A-3. Platted in 1977 and developed in 1982, the
Zitos’ home stood in an established residential
subdivision. Joint Appendix on Appeal (JA) at 23.
 7

More than a dozen homes exist on either side of

the Zitos’ lot, and many others are located both
seaward and landward of the property. Id.
For eight years, between 2008 and 2016, the Zitos
spent family time at their beach house and rented it
out for income at other times. App. A-3. Sadly, on the
night of October 10, 2016, a fire burned the home to
the ground while it was unoccupied. Id. It was a total
loss; only the underground septic system remained
intact and unharmed. A photo showing the location of
the property after the fire is reproduced below.

JA at 24.
The Zitos soon decided to rebuild. Because their
property is near the shore, development on the lot
must comply with the North Carolina Coastal Area
Management Act (CAMA), N.C. Gen. Stat. § 113A-
100, et seq., and related regulations. App. at B-3.
 8

Under the CAMA framework, coastal property that

lies within a designated Area of Environmental
Concern (AEC) is subject to a set-back rule that
requires development to occur a certain distance from
the shore.1 App. B-3. The set-back line is calculated
based on estimated annual beach erosion rates and
the location of the first line of stable, natural
vegetation. App. A-3-4. The rules require construction
to generally be set back from the line of vegetation at
a distance of at least 30 times the annual erosion rate.
App. A-4. However, a “grandfather” clause allows
development of less than 2,000 square feet on parcels
existing before June 1, 1979, to be set back only 60 feet
from the line of vegetation. Id.
The Zitos’ lot is in a coastal AEC that has an
official erosion rate of six feet per year. App. B-4. This
results in a 180-foot set-back requirement (30 times
the annual erosion rate of six feet). Id. Like adjacent
lots, the Zitos’ parcel is not 180 feet from the
vegetation line.2 App A-4. And while the lot is a
“grandfathered” one because it existed prior to 1979,
it also does not meet the lesser 60-foot set-back line
for such property. See id. Strict application of CAMA’s
set-back rules would accordingly bar development on
the Zitos’ property.
Nevertheless, in July, 2017, the Zitos submitted
an application to the Town of Nags Head to rebuild a

1 The Commission considers the “[r]eplacement of structures

damaged or destroyed by . . . fire” to be “development [that]
requires CAMA permits.” 15A NCAC 7J.0210.
2 The line of vegetation in the Town of Nags Head was
established as a “stable” line of vegetation in 2011 when the
Town carried out a beach renourishment project. See 15A NCAC
7H.0305(a)(6) & 7H.0306(a)(11).
 9

home on their lot.3 The proposed home was to be

roughly the same size as the prior one, and within the
same footprint. Their proposal also included a new
driveway of clay, packed sand, or gravel to minimize
potential flooding concerns. Still, the Town denied the
Zitos’ application because the proposed development
was not compliant with the CAMA set-back rules.
App. A-5.
The Zitos subsequently filed a petition for a
variance from the preclusive CAMA rules with the
Commission. Id. They asserted, in part, that their
property would be rendered undevelopable without a
variance. In December 2018, the Commission
considered the Zitos’ petition at a public hearing.
Afterward, it issued a Final Agency Decision denying
the requested variance. Id. In so doing, the
Commission found that the Zitos could use their lot as
a campsite or for a stand-alone swimming pool.4

3 Under CAMA, local governments have initial permitting

jurisdiction over CAMA permits. See N.C. Gen. Stat. § 113A-
121(b); 15A NCAC 7J.0201. If the locality denies a permit, the
applicant may seek a variance from the Commission. N.C. Gen.
Stat. § 113A-121.1.
4 The Commission made that finding despite an affidavit from
the Deputy Planning Director and Zoning Administrator for the
Town of Nags Head stating that if the Zitos were not allowed to
rebuild a home, the local zoning code would not allow the
property to be used as a public campsite, or for a stand-alone
deck, storage shed, or swimming pool.
 10

II.
PROCEDURE
A. The District Court Decision
The Zitos sued the Commission in the U.S.
District Court for the Eastern District of North
Carolina. They asserted that the agency’s refusal to
grant a variance allowing reconstruction of their home
resulted in a taking of their property under the Fifth
Amendment to the United States Constitution.5 App.
A-5.
The Commission soon moved to dismiss the case
as unripe based on the existence of alleged state
compensation procedures. App. B-5. Relying on Knick
v. Township of Scott, 139 S. Ct. 2162 (2019), the
district court denied the motion. The Commission
subsequently filed a second motion to dismiss. This
time, it asserted that Eleventh Amendment sovereign
immunity principles barred the Zitos’ Fifth
Amendment claim for just compensation. App. B-6.
The district court granted this motion, concluding that
it was bound to follow a prior Fourth Circuit decision,
Hutto v. S.C. Ret. Sys., 773 F.3d 536 (4th Cir. 2014),
which held that “the Eleventh Amendment bars Fifth
Amendment taking claims against States in federal
court where the State’s courts remain open to
adjudicate such claims.” App. B-11 (quoting Hutto,
773 F.3d at 552).
The district court’s ruling notes, however, that the
Fourth Circuit’s sovereign immunity analysis in Hutto
is in “tension with the Supreme Court’s reasoning in

5 Although the Zitos initially also raised a state law claim, they

later voluntarily dismissed that claim. App. B-5.

 11

Knick.” It observed that, while “Knick removed the

state litigation requirement that had forced litigants
to file their takings claims under state law in state
court,” Hutto’s sovereign immunity barrier “forces
litigants who wish to pursue a takings claim under the
Fifth Amendment into state courts.” App. B-24.
Although the district court recognized that it had to
follow Hutto, it acknowledged “the significant
constitutional issues that the Zitos raise, and [ ] that
‘the guarantee of a federal forum rings hollow for
takings plaintiffs, who are forced to litigate their
claims in state court.’” App. B-25. (quoting Knick, 139
S. Ct. at 2167). The district court concluded that
“Knick foreshadows the day when the [Supreme]
Court will have to address the interplay between the
Fifth Amendment’s Just Compensation Clause and
the Eleventh Amendment.” App. B-24.
B. The Fourth Circuit Opinion
On appeal, the Fourth Circuit affirmed the
district court. App. A-3. Relying on Hutto, the Fourth
Circuit re-confirmed that sovereign immunity
precludes takings claims seeking just compensation in
federal court when state courts are open to such
claims. App. A-14, 20. In so holding, the court below
reiterated its belief that Reich, 513 U.S. at 110,
justifies a sovereign immunity barrier to takings
claims.
The Fourth Circuit also rejected the argument
that Knick undermines the conclusion that sovereign
immunity applies to federal court takings cases due to
the availability of state remedies. App. A-10-12. It
further rejected the contention that Knick renders
reliance on Reich improper because Knick
distinguishes Takings Clause and Due Process Clause
 12

remedies. App A-12. The court below concluded that,

“[b]y treating the Takings Clause the same as other
constitutional rights, the Supreme Court [in Knick]
suggests that it remains subject to the same
limitations on those other rights—including sovereign
immunity.” App. A-13.
The Fourth Circuit then determined that North
Carolina offers an adequate two-suit process for the
Zitos to seek compensation for the taking of their
property by the Commission. It concluded that the
Zitos must first file a state court action to invalidate
the Commission action as a taking of property. If they
succeed, the Zitos may then file a second suit for
monetary compensation using a different state court
procedure. App. A-14-19. Finding this to be an
adequate state compensation remedy, the Fourth
Circuit held that “State sovereign immunity bars their
takings claims against the Commission in federal
court.” App. A-20.
Petitioners now timely file this Petition for Writ of
Certiorari.

REASONS FOR GRANTING THE PETITION

The Eleventh Amendment and the Fifth

Amendment’s Just Compensation Clause express two
of the most venerable constitutional principles in
existence: sovereign immunity for states and just
compensation for citizens whose property is taken for
public use. These principles function independently
and adequately in most cases. However, when a state
takes property without compensation, sovereign
immunity and the Just Compensation Clause—
applicable to states through the Fourteenth
Amendment—come into conflict. While the former
 13

bars a damages award, the latter positively requires

it.
The Fourth Circuit’s holding that sovereign
immunity is superior to the right of compensation for
a taking conflicts with this Court’s jurisprudence,
diminishes the Just Compensation Clause, and
conflicts with the decisions of other courts, all of which
justifies review.
I.
THE DECISION BELOW
CONFLICTS WITH THIS COURT’S JUST
COMPENSATION CLAUSE PRECEDENT
A. The Principles at Issue
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.” This Court has held that the
Amendment generally bars all suits against a state
entity absent the state’s consent to the suit. Hans v.
Louisiana, 134 U.S. 1, 21 (1890). Indeed, the Court
has explained that the text of the Eleventh
Amendment is not a full expression of the concept of
sovereign immunity. Thus, the state sovereign
immunity principles that animate the Eleventh
Amendment apply in state court, as well as in federal
court. Alden v. Maine, 527 U.S. 706, 712, 733, 749
(1999).6

6 Prior to Alden, the Court's precedent suggested that sovereign

immunity principles may not apply in state courts. Hilton v.

South Carolina Public Railways Comm’n, 502 U.S. 197, 204-05
 14

There are exceptions. In particular, 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. Section 5 of
the Fourteenth Amendment allows Congress to
enforce Fourteenth Amendment rights against states
without respect to their immunity. Id. at 755-57. And,
in Ex parte Young, this Court recognized an exception
from sovereign immunity when a person sues state
officials for prospective relief from an ongoing
violation of federal law, 209 U.S. 123; see also,
Milliken v. Bradley, 433 U.S. 267, 289-90 (1977).
Under this framework, states and their officials
enjoy robust immunity from suits requiring a
payment of damages. Edelman, 415 U.S. at 666-67 (Ex
parte Young does not allow a suit seeking an
injunction that would result in retroactive monetary
relief); Ford Motor Co. v. Dep’t of Treasury of Indiana,
323 U.S. 459, 464 (1945) (Eleventh Amendment bars
a damages action against a State in federal court);
Hess v. Port Authority Trans–Hudson Corp., 513 U.S.
30, 48 (1994).
At the same time, it is now settled that the Just
Compensation Clause provides property owners with
a right to recover monetary compensation whenever
the government takes property. Knick, 139 S. Ct. at
2171-73. In fact, in most takings cases, property
owners can only seek compensation for a taking;
equitable relief is unavailable. Id. at 2176-77. While
the Just Compensation Clause remedy may be

(1991). But Alden clarified that “the States retain an analogous

constitutional immunity from private suits in their own courts,”
527 U.S. at 748.
 15

relatively narrow, it is mandatory and “self-

executing.” First English, 482 U.S. at 315-16. No
legislative action is necessary for the right to just
compensation to be effective; the Constitution itself
confers the right. Jacobs v. United States, 290 U.S. 13,
16 (1933) (claims “based on the right to recover just
compensation for property taken” do not require
“[s]tatutory recognition” but are “founded upon the
Constitution”).
Thus, while the Just Compensation Clause allows
a property owner to immediately seek compensation
for a taking of property in federal court, sovereign
immunity indicates that federal courts cannot apply
this rule if the state is a defendant. As a result, “[t]he
principles of sovereign immunity and just
compensation are on a collision course.” Seamon, 76
Wash. L. Rev. at 1067-68; Berger, 63 Wash. & Lee L.
Rev. at 494.
B. The Decision Below Conflicts With This
Court’s Precedent
The Fourth Circuit’s conclusion that sovereign
immunity prevails in the clash with the Just
Compensation Clause conflicts with this Court’s
jurisprudence.
1. The decision conflicts with this
Court’s understanding of the
Just Compensation Clause
On several occasions, this Court has recognized
that the Just Compensation Clause is not just a
condition on the exercise of the government’s power to
take property; it supplies a damages remedy in the
event that government appropriates property without
payment. Indeed, in a series of opinions culminating
 16

in Knick, the Court has emphasized that the monetary

remedy inherent in the Just Compensation Clause is
“self-executing.” That means the Constitution itself
gives a property owner a “claim for just compensation
at the time of the taking.” Knick, 139 S. Ct. at 2171
(quoting First English, 482 U.S. at 315). Indeed, the
Knick Court confirmed that the right to receive
payment for a taking is actionable in federal court, as
well as in state courts, as soon as a taking occurs. Id.
at 2171-73.
Of course, originally, the Just Compensation
Clause, and the remedy it provides, did not bind the
States; it applied only to the federal government.
Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 247-
51 (1833). But this changed with enactment of the
Fourteenth Amendment, which shifted the balance of
federal and state power and “required 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. In part, the Fourteenth
Amendment prohibited states from “depriv[ing] any
person of . . . property, without due process of law.”
U.S. Const. amend. XIV, § 1. This Court soon held that
the Fourteenth Amendment’s due process
requirement incorporated the Fifth Amendment’s
Just Compensation Clause. Chicago, B. & Q.R. Co. v.
City of Chicago, 166 U.S. 226, 239-41 (1897). By
incorporation, the just compensation requirement
“applies to the States as well as the Federal
Government.” Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency, 535 U.S. 302, 306 n.1
(2002).
 17

The Fourth Circuit’s conclusion that property

owners cannot sue a state agency for just
compensation in federal court when a state takes
property rights is irreconcilable with the precedent
outlined above. If, under the Court’s precedent, (1) the
Just Compensation Clause mandates damages for
every taking (it does); and (2) that right is actionable
in federal court, (it is) and (3) states are bound by this
requirement through the Fourteenth Amendment
(they are), there is little room for the proposition,
adopted by the decision below, that states are exempt
from federal suits alleging a violation of the Takings
Clause. Berger, 63 Wash. & Lee L. Rev. at 519 (“[T]he
straight textual argument seems to require the
government to provide money damages [for a taking],
notwithstanding otherwise applicable sovereign
immunity bars.”).
Indeed, while this Court has not squarely
addressed the conflict between sovereign immunity
and the just compensation requirement, it has
indicated that the right to compensation is superior to
immunity. For instance, in First English, this Court
considered whether the Fifth Amendment provided a
damages remedy when a land use regulation causes a
taking, As amicus curiae, the United States argued
that “principles of sovereign immunity” prevented the
Court from interpreting the Fifth Amendment as “a
remedial provision.” 482 U.S. at 316 n.9; Brief for the
United States as Amicus Curiae Supporting Appellee,
No. 85-1199, 1986 WL 727420, at *26-30 (U.S. Nov. 4,
1986).
The First English Court rejected this position. 482
U.S. at 316 n.9 (“[T]he cases cited in the text . . . refute
the argument of the United States that ‘the
 18

Constitution does not, of its own force, furnish a basis

for a court to award money damages against the
government.’” (quoting United States’ Amicus Brief)).
This conclusion “strongly suggests” the Just
Compensation Clause is an exception to sovereign
immunity. Vicki C. Jackson, The Supreme Court, the
Eleventh Amendment, and State Sovereign Immunity,
98 Yale L.J. 1, 115 n.454 (1988); see also Catherine T.
Struve, Turf Struggles: Land, Sovereignty, and
Sovereign Immunity, 37 New Eng. L. Rev. 571, 574
(2003); 1 Laurence H. Tribe, American Constitutional
Law § 6–38, at 1272 (3d ed. 2000) (observing, based on
First English, that the Takings Clause “trumps state
(as well as federal) sovereign immunity”).
Approximately a decade later, in Del Monte
Dunes, a plurality of the Court questioned whether
sovereign immunity “retains its vitality” in the
context of compensation-seeking takings claims. Del
Monte Dunes, 526 U.S. at 714. Further, this Court has
decided many takings cases against states without
concern that sovereign immunity might preclude
jurisdiction. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992), Tahoe-Sierra, 535 U.S.
at 302. Indeed, in Palazzolo v. Rhode Island, 533 U.S.
606 (2001), amici directly raised sovereign immunity,
but the Court did not address it. See Amicus Brief of
the Board of County Commissioners of the County of
La Plata, et al., in Support of Respondents, No. 99-
2047, 2001 WL 15620, at *20-21 (U.S. Jan. 3, 2001).
None of these takings cases directly rejected
sovereign immunity. But, since sovereign immunity is
a quasi-jurisdictional concern that can be raised at
any stage, Edelman, 415 U.S. at 678; Ford Motor Co.,
323 U.S. at 467, the fact that this Court’s takings
 19

decisions routinely overlook the issue confirms what

other decisions suggest: sovereign immunity is not a
jurisdictional bar when faced with a takings claim
seeking a remedy under the Just Compensation
Clause. Manning v. N.M. Energy, Minerals & Natural
Res. Dep’t., 144 P.3d 87, 90 (N.M. 2006) (noting this
Court “has consistently applied the Takings Clause to
the states, and in so doing recognized, at least tacitly,
the right of a citizen to sue the state under the
Takings Clause”)
The Fourth Circuit’s conclusion thus conflicts with
this Court’s Just Compensation Clause precedent. But
even more, it ultimately fails to align with Congress'
intent to limit state power over individual rights
through enactment of the Fourteenth Amendment.
Mitchum v. Foster, 407 U.S. 225, 238-39 (1972)
(recognizing the role of the Amendment in elevating
“the Federal Government as a guarantor of basic
federal rights against state power”); Home Tel. & Tel.
Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913)
(adopting as the “theory of the Amendment” that “the
Federal judicial power is competent to afford redress
for [a] wrong” that violates the Fourteenth
Amendment); Akhil Reed Amar, The Bill of Rights:
Creation and Reconstruction 268 (1998) (noting that a
leading proponent of the Amendment stated it was
adopted in part to protect “citizens of the United
States, whose property, by State legislation, has been
wrested from them”). If Congress can act to enforce a
Fourteenth Amendment right without violating state
immunity, Fitzpatrick v. Bitzer, 427 U.S. 445, 456
(1976). then certainly enactment of the Amendment
itself overrides that immunity when it includes a “self-
executing” remedy like the right to compensation. Eric
Grant, A Revolutionary View of the Seventh
 20

Amendment and the Just Compensation Clause, 91

Nw. U. L. Rev. 144, 199 (1996) (“It is a proposition too
plain to be contested that the Just Compensation
Clause of the Fifth Amendment is ‘repugnant’ to
sovereign immunity and therefore abrogates the
doctrine[.]”).
2. The Fourth Circuit decision is
incompatible with Knick
Of course, in the decision below, the Fourth
Circuit did not simply hold that sovereign immunity
bars takings claims in federal court. It held that
sovereign immunity is a barrier “if state courts remain
open to adjudicating the claim.” App at A-20. This
conclusion is also irreconcilable with the Court’s
precedent.
As the district court observed, the Fourth Circuit’s
“state-court remedy requirement is in tension with
the Supreme Court’s reasoning in Knick.” App. at B-
24. In Knick, this Court overruled the rule, articulated
in Williamson County Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 194-96
(1985), that a federal takings claim cannot be raised
in federal court if compensation procedures are
available in state court. In rejecting this state
remedies/exhaustion rule, the Knick Court stated:
“The Fifth Amendment right to full compensation
arises at the time of the taking, regardless of post-
taking remedies that may be available to the property
owner.” 139 S. Ct. at 2070. It further explained that
“the availability of any particular compensation
remedy, such as an inverse condemnation claim under
state law, cannot infringe or restrict the property
owner’s federal constitutional claim,” and this “allows
the owner to proceed directly to federal court.” Id. at
 21

2171. In sum, because an uncompensated taking

violates “the self-executing Fifth Amendment at the
time of the taking, the property owner can bring a
federal suit at that time.” Id. at 2172.
While Knick “removed the state-litigation
requirement that had forced litigants to file their
takings claims under state law in state court,” the
Fourth Circuit’s decision in this case “still forces
litigants who wish to pursue a takings claim under the
Fifth Amendment into state courts” if their claim is
against a state. App. B-24. It is true, of course, that
Knick did not consider a takings claim against a state.
But nothing in Knick or related precedent supports
the idea that state remedies affect federal review
depending on the nature of the defendant; i.e.,
whether it is a state, rather than local entity. Knick,
139 S. Ct. at 2171 (“The fact that the State has
provided a property owner with a procedure that may
subsequently result in just compensation cannot
deprive the owner of his Fifth Amendment right to
compensation under the Constitution[.]”).
Federal judicial power to enforce the Takings
Clause does not hinge on what state courts are doing,
but on what the Fourteenth Amendment already did:
extended the just compensation requirement to the
states. This Court should grant the Petition to confirm
that state court remedies are as irrelevant to the
federal courts’ power to hear a takings claim against
a state as they are to its power over a claim against a
local government.
 22

3. The decision below conflicts with

precedent distinguishing takings
and due process concepts
Surprisingly, the court below looked primarily to
this Court’s Due Process Clause-based analysis in
Reich, rather than to takings precedent, in deciding
that sovereign immunity bars the Zitos’ takings claim.
This approach is inconsistent with precedent from this
Court distinguishing takings and due process
principles.
Reich held that the Due Process Clause requires a
state to provide a refund remedy in its own courts for
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 its own courts). In so
holding, Reich found that sovereign immunity was not
a barrier: “‘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,’ the
sovereign immunity States traditionally enjoy in their
own courts notwithstanding.” 513 U.S. at 109-10
(citation omitted). The Reich Court then 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.
at 459) (emphasis added).
The Fourth Circuit in this case, and other courts,
have concluded that Reich provides a compromise,
“third-way,” approach to the clash between sovereign
immunity and the Just Compensation Clause, one
 23

that requires application of sovereign immunity in

federal court, but not in state court. App. at A-9; DLX,
Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004)
(citing Reich, 513 U.S. at 110). Indeed, it is not an
exaggeration to say that Reich is the single most
influential precedent on the issue of whether
sovereign immunity bars a takings claim in federal
court. Seven Up Pete Venture, 523 F.3d at 954-55
(noting the federal courts’ reliance on Reich in this
area of law); see also, DLX, 381 F.3d at 527. This
Court’s precedent does not justify such a role.
On numerous occasions, this Court has rejected
that contention that takings questions can be resolved
by due process answers. Knick, 139 S. Ct at 2174.
(“[T]he analogy from the due process context to the
takings context is strained . . . .”); Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 541-42 (2005) (divorcing
takings and due process principles). This doctrinal
separation holds true with respect to the scope of
potential monetary remedies under the Just
Compensation Clause and the Due Process Clause.
While the Court has clarified that the just
compensation remedy is self-executing and actionable
in federal court, Knick, 139 S. Ct. at 2170-72, it has
limited the due process tax refund remedy to state
court. Reich, 513 U.S. at 109-10; see also Fair
Assessment in Real Estate Ass’n, Inc. v. McNary, 454
U.S. 100 (1981) (holding tax claims non-justiciable in
federal court). This distinction is incompatible with
the idea, adopted below, that Reich’s due process-
based, state court remedial analysis controls the issue
of whether the just compensation remedy applies in
federal court.
 24

Reich simply does not address the issue in this and

other state takings cases: whether a damages remedy
that is self-executing in federal court overrides
sovereign immunity in federal court. Yet, with the
issue filtered through the circuit courts, most have
“expressly or implicitly applied the Reich rationale
and held that the Eleventh Amendment bars Fifth
Amendment reverse condemnation claims brought in
federal district court.” Seven Up Pete Venture, 523
F.3d at 955. At this point, only intervention from this
Court can correct the misapplication of Reich to the
Just Compensation Clause context.
This Court should grant the Petition in part to
limit Reich to the due process context, allowing the
issue to be resolved under Just Compensation Clause
precedent and the Fourteenth Amendment's
incorporation doctrine.
II.
THE DECISION BELOW RAISES
AN IMPORTANT QUESTION AS TO
WHETHER IMMUNITY ALLOWS STATES
TO EVADE THE DUTY TO PAY FOR
TAKINGS IN FEDERAL COURT
A. The Decision Below Renders the
Takings Clause Inferior to Other
Constitutional Rights
The Fourth Circuit’s conclusion that sovereign
immunity defeats the right to just compensation in
federal court is not only doctrinally untenable, it also
severely diminishes the scope and strength of the
constitutional right to just compensation. This result
flows from the monetary nature of the just
compensation remedy, which operates as a potential
 25

barrier to the filing of takings claims in federal court

under Ex parte Young.
Most constitutional violations can, of course, be
redressed by injunctive relief, and this feature allows
citizens to invoke federal protection of their
constitutional rights against state interference under
Ex parte Young. But the Takings Clause is different
due to the just compensation provision; the usual
remedy for violations of that Clause is monetary, not
injunctive in nature. Knick, 139 S. Ct. at 2176. If
sovereign immunity bars federal takings claims in
federal court, as the decision below holds, the Takings
Clause is stripped of federal protection from state
intrusion. See, e.g., Jevons v. Inslee, No. 1:20-CV-3182-
SAB, 2021 WL 4443084, at *11 (E.D. Wash. Sept. 21,
2021); (refusing to hear a takings claim against a state
official under Ex parte Young because “[t]he relief
sought by Plaintiffs is foreclosed by the Supreme
Court’s decision in Knick. The remedy for a taking
under the Fifth Amendment is damages, not equitable
relief.”); Pharmaceutical Research & Mfrs. of America
v. Williams, No. 20-1497, 2021 WL 963760 (D. Minn.
Mar. 15, 2021) (dismissing an injunction-seeking
takings claim against state officials based on
unavailability of equitable relief); Local 860 Laborers’
Int’l Union of N. America v. Neff, No. 1:20-CV-02714,
2021 WL 2477021, at *6 (N.D. Ohio June 17, 2021)
(same). This result converts the right to compensation
into a second class right relative to other
constitutional rights when it comes to federal judicial
protection.
In the end, the loss of federal protection for
Takings Clause claims against states leaves people
like the Zitos dependent on state procedures for the
 26

vindication of their federal right to compensation.

While local compensation processes are available in
many states, in some, including Arkansas and
Tennessee, there is no process at all because sovereign
immunity bars takings claims in both state court and
federal courts. Compare Austin v. Arkansas State
Highway Comm’n, 895 S.W.2d 941 (Ark. 1995)
(sovereign immunity barred a damages-seeking
takings claim against a state), with Long v. Area
Manager, Bureau of Reclamation, 236 F.3d 910, 916-
17 (8th Cir. 2001) (Eleventh Amendment bars takings
claims against states in the Eighth Circuit), and
compare Hise v. Tennessee, 968 S.W.2d 852, 853-55
(Tenn. Ct. App. 1997) (holding that immunity
precluded an inverse condemnation claim against the
State), with DLX, 381 F.3d at 527 (states are immune
from takings claims in the Sixth Circuit). This
transforms the Just Compensation Clause “into an
empty admonition.” See Esposito v. South Carolina
Coastal Council, 939 F.2d 165, 173 n.3 (4th Cir. 1991)
(Hall, J., dissenting) (If state immunity applies to
takings cases, “a recalcitrant state could nullify the
Just Compensation Clause by simply refusing to
furnish a procedure to assess and award
compensation. The Clause could be converted from a
fundamental constitutional right into an empty
admonition.”).
B. State Court Procedures for Seeking
Compensation for a State Taking Are
Often More Burdensome Than a Suit
Under the Federal Takings Clause
In other states, available state court
compensation procedures are usually more
burdensome, complicated, and uncertain than a
 27

straightforward Takings Clause suit in federal court.

Brief of the Ohio Farm Bureau Federation as Amicus
Curiae in Support of Petitioner, Knick v. Township of
Scott, No. 17-647, 2018 WL 2733954 (U.S. June 4,
2018). Some states, including California and Florida,
require property owners to exhaust non-compensatory
litigation procedures as a prerequisite to filing a claim
for damages for a taking by a state. See, e.g.,
California Coastal Comm’n v. Superior Court, 210
Cal. App. 3d 1488, 1496 (1989) (property owner could
not seeking damages for a taking in inverse
condemnation because he had failed to first file an
action to invalidate the taking); Florida Dep’t of Agric.
& Consumer Services v. Dolliver, 283 So. 3d 953, 955-
57 (Fla. Dist. Ct. App. 2019) (summarizing a
complicated process in which the legislature must
make a special allocation of funds to pay for a takings
judgment and the takings victims can petition for that
allocation). This multi-layered process confuses,
delays, and sometimes prevents the vindication of the
Just Compensation Clause. Martin v. Hunter’s Lessee,
14 U.S. (1 Wheat.) 304, 347-48 (1816) (Story, J.) (“The
Constitution has presumed . . . that State
attachments, State prejudices, State jealousies, and
State interests, might sometimes obstruct, or control,
or be supposed to obstruct or control, the regular
administration of justice.”).
This case provides an apt example. The
“exclusive” state court procedure for the Zitos to assert
a takings claim against the Commission does not
provide compensation if a taking is found. App. B-22.
It offers only an “invalidation” remedy. Id. at B-20.
The Fourth Circuit held that the Zitos must use this
procedure to determine if a taking occurred. If a state
court finds the Commission caused a taking, the Zitos
 28

must then file a second lawsuit, under different state

procedures, to obtain compensation for the taking.
App. A-15-16. In other words, the Zitos must exhaust
a non-compensatory takings procedure to get to a
state procedure that might provide compensation for
taking of their property by the Commission. Id. at A-
16. Such a two-suit process has never been tried before
in North Carolina and there is no precedent that
directly supports or guides it. Moreover, this two-suit
state court process for obtaining compensation from
the Commission is inconsistent with the law of the
Just Compensation Clause, which does not require a
plaintiff to exhaust alternative remedies (like
invalidation) before suing for compensation. See
Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. at 193 (one
asserting a Takings clause violation need not pursue
a “declaratory judgment regarding the validity of
zoning and planning actions” prior to filing a suit for
compensation).
The right to just compensation was never meant
to be so complicated or protracted. This Court has
made clear that Just Compensation Clause requires
the government to pay for every taking, and that
payment is due as soon as a taking is found, not years
later, after a state court lawsuit. Knick, 139 S. Ct. at
2171-73. The states bound themselves to this regime
when they enacted the Due Process Clause in the
Fourteenth Amendment and subjected themselves to
the just compensation remedy incorporated in that
Clause. In concluding that sovereign immunity
negates these principles, the decision below
diminishes both the Fourteenth Amendment and the
Takings Clause.
 29

III.
FEDERAL COURTS ARE
IN CONFLICT ON THE ISSUE
Many federal courts hold, in agreement with the
decision below (and based largely on Reich), that
sovereign immunity bars takings claims in federal
court. But some have rejected this outcome.
In Allen v. Cooper, No. 5:15-CV-627-BO, 2021 WL
3682415 (E.D.N.C. Aug. 18, 2021),7 a federal district
court rejected the reasoning of the decision below.
Allen involved an alleged taking of property arising
from North Carolina’s unauthorized use of private,
copyrighted images of the recovery of Queen Anne’s
Revenge—the former flagship of the pirate
Blackbeard. Id. at *1.
Relying primarily on Knick, the Allen Court
rejected the state’s sovereign immunity defense. It
concluded that Knick “decisively endorsed the decision
in First English, including its statement that the
Constitution, “‘of its own force, furnish[es] a basis for
the court to award money damages against the
government,’ notwithstanding principles of sovereign
immunity.” Id. at *5. The Allen court explained that
“the reasoning in Knick still applies, even though this
case [unlike Knick] involves the issue of sovereign
immunity.” Knick, it held, “fatally undermine[s]” the
idea “that sovereign immunity applies to cases against
States in federal courts when the State’s courts
remain open to adjudicate such claims.” Id. The Allen
court also rejected the conclusion that Reich justifies

7 The Allen decision was issued nine days after the Fourth
Circuit’s decision in this matter, an event of which the Allen court
was apparently not aware. An appeal has been filed in Allen.
 30

applying sovereign immunity to takings claims. Id. at

*6.
The Allen court then looked to the Fourteenth
Amendment and concluded it abrogated sovereign
immunity:
The text of the Fifth Amendment supports
a finding of automatic abrogation [of
immunity]. The Fifth Amendment Takings
Clause is one of only two constitutional
clauses that dictate a particular remedy,
stipulating that private property shall not “be
taken for public use, without just
compensation.” U.S. Const. amend. V.
Although the Fifth Amendment only applies
to the federal government, the just
compensation requirement was extended to
the States through the Fourteenth
Amendment. Since the Constitution explicitly
requires “just compensation,” the 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.
Id. at *8 (internal citations omitted).
Thus, the Allen decision conflicts with the Fourth
Circuit’s decision in this case. It is not alone in that
regard.
In Devillier v. Texas, No. 3:20-cv-00223, 2021 WL
3889487 (S.D. Tex. July 30, 2021), another district
court rejected the reasoning of the decision below in
holding a takings claim against a state proper in
federal court, notwithstanding state immunity.
 31

In Devillier, property owners asserted that the

state caused a compensable taking by knowingly
constructing and maintaining an interstate highway
in a way that flooded and destroyed their property. Id.
at *2-3. When the state asserted sovereign immunity,
the court rejected it, based in part on the self-
executing nature of the Just Compensation Clause.
The court explained:
Drawing support from Alden, several state
appellate courts have concluded that, even
without an express waiver of sovereign
immunity, the text of the Fifth Amendment
mandates a remedy of just compensation.
These courts have held that the purpose of the
Fifth Amendment’s Takings Clause would be
subverted if private takings claims against a
state were blocked by sovereign immunity.
Id. at *7.
Concluding that it “agree[s] with and adopt[s] the
reasoning provided by these courts,” id., the Devillier
court denied the state’s immunity defense, in conflict
with the decision below.
Several other federal courts have also concluded,
with less analysis, that the Just Compensation Clause
overrides sovereign immunity in a takings suit. See
Leistiko v. Sec’y of Army, 922 F. Supp. 66, 73 (N.D.
Ohio 1996) (“The Just Compensation Clause, with its
self-executing language, waives sovereign immunity
because it can fairly be interpreted as mandating
compensation by the government for the damage
sustained.”); Hair v. United States, 350 F.3d 1253,
1257 (Fed. Cir. 2003) (“[S]overeign immunity does not
protect the government from a Fifth Amendment
 32

Takings claim because the constitutional mandate is

‘self-executing.’”).
The Court should grant the Petition to resolve the
conflict among the courts on the issue of whether the
just compensation requirement incorporated in the
Fourteenth Amendment abrogates sovereign
immunity when states are charged with taking of
property.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.
DATED: October 2021.
Respectfully submitted,
J. DAVID BREEMER
Counsel of Record
GLENN E. ROPER
ERIN E. WILCOX
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
Counsel for Petitioners