US Supreme Court Update for FDD Homeowners: Petition Distributed to Justices’ Chambers for Review; Decision as Early as October 1, 2019

We have important news from the United States Supreme Court about the progress of the Homeowners Petition for review in the FDD Homeowners Class Action, Lumbard et al. v. City of Ann Arbor.

As you may recall, on July 29, 2019, the FDD Homeowner Class Plaintiffs in Lumbard v City of Ann Arbor filed their Petition in the US Supreme Court for review of the Sixth Circuit’s opinion in the City’s favor on January 11, 2019. The City’s arguments and the Sixth Circuit’s opinion were both based on two older Supreme Court cases we have discussed before, Williamson County Bd of Comm’rs v Hamilton County Bank and San Remo Hotel v City of San Fransisco.

When the Sixth Circuit decided Lumbard, both of these cases were on life support in the US Supreme Court in a related case, Knick v. Township of Scott. By June 21, 2019, when the Court decided Knick, the two cases were dead, overturned and renounced When the the Sixth Circuit’s opinion was handed down on January 11, 2019, it had affirmed the result in the District Court, also on the basis of Williamson/San Remo tactics, while Knick was still pending in the Supreme Court.

Barely six months later, Justice Roberts wrote the biting majority opinion in Knick, sweeping away Williamson/San Remo, and its requirement for years of state court litigation as a condition of adjudication by a federal court. Roberts the made the conditions necessary to any future “San Remo preclusion trap”

The Homeowner Plaintiffs in Lumbard v City of Ann Arbor waited to file their Petition for Review in the US Supreme Court until after the Supreme Court had handed down its landmark decision in Knick v. Township of Scott on June 21, 2019.

As we reported previously, on August 27, 2019, the City waived its right to file an opposition in the Supreme Court to the Homeowners’ Petition. That sped up the process at the Supreme Court. So, as the Court announced last week, the Petition has been distributed to the nine Justices of the Court for its first level of review.

Next Steps in Review of Petitions for Certiorari

The first step in this review is for the Petition to be studied and analyzed by some of the best and brightest young lawyers in America, US Supreme Court Clerks, who will provide their results to the Justices. It doesn’t hurt that the Clerks for the Justices in the majority in Knick still have that signal case fresh in mind. Four justices are required to grant a petition.

The Justices will then decide individually whether the FDD Homeowners’ petition goes on to the next step: discussion of the Petition in one of the Justices’ future weekly private conferences.

When in the future? The date could have been set sooner or later, but the private conference is October 1, 2019, two weeks from today.

Before then, the Chief Justice gets the first crack at which petitions delivered to him as candidates for the “discuss list” for October 1. After that, the other eight Justices get their turn; any of them can add a petition to the “discuss list” or move one to a later conference date.

The Supreme Court does not publicly announce which cases are going to be discussed at a conference and which won’t. The press gets that information the day before, but it is not for publication.

When will we know the results for this Petition? This conference is on a Tuesday, while Supreme Court conferences are typically on Thursdays. Again, typically, the Court announces the next day what the results of the conference were — which cases were discussed and the Court’s disposition. Based on that, we should have a result between Wednesday, October 2, 2019 and Friday, October 4, 2019.

We will keep you posted.


FDD Class Plaintiffs File Petition with US Supreme Court to Overturn Sixth Circuit’s Judgement for City of Ann Arbor

Landmark SCOTUS Decision Eradicates Legal Barriers to Commencement of New Federal Litigation by Additional Class Action Plaintiffs

I am pleased to report that on July 29, 2019, the FDD Federal Class Action Plaintiffs in Lumbard et. al vs City of Ann Arbor filed their Petition with the United States Supreme Court review the United States Supreme Court to vacate the decision of the Sixth Circuit Court of Appeals in their consolidated cases.

Here is a link to the full document. If you read the relatively short arguments beginning on Page 20 you will get a brief version of the autopsy report on the City of Ann Arbor’s case in the FDD litigation since 2014.

The Plaintiffs’ Petition follows the decision of the Supreme Court on June 21 in Knick v Township of Scott, No. 17-647, 588 U.S. ___ 2019). As we discussed in an earlier post, Knick overturned the two cases on which the City’s successes in both state and federal court depended,  Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172  (1985) and San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323 (2005). 

In brief, after Knick, Williamson, San Remo, and all of the jurisprudence under them for 34 years, ceased to exist. The use by municipal governments of  Williamson and San Remo, as a tactic to preclude federal takings plaintiffs from their day in federal court, was on trial in the Supreme Court in Knick. The Court reacted with unusual force to the “unanticipated result” of preclusion of federal takings plaintiffs under San Remo, particularly where the plaintiffs have spent years in state court formerly required under Williamson. 

The Court made such tactics legally impossible even to be attempted post-Knick. Justice Roberts carefully eliminated all the precedents and doctrines that underlay the use of “preclusion traps,” root and branch. The City of Ann Arbor will go down as one of the last municipalities–if not the last–to employ a San Remo trap successfully to preclude federal takings plaintiffs from an independent federal forum for their claims.

Because of Knick, the Sixth Circuit decision in Lumbard did not end litigation arising from the City’s Footing Drain Disconnection Program at all. The Lumbard case is very much alive. Independent of its effect on Lumbard, Knick also removed any barriers to a new class action by a further class action by another class representative, this time commenced in federal court, federal court, by a new class plaintiff. We will have some details on that in a separate post.

Only four Justices are required to grant a Petition; there were five in the majority in Knick. Additionally, the Court has already granted the Petition of another takings plaintiff from the Ninth Circuit while the case was was still “in process” in the federal courts when Knick was handed down by the Supreme Court. The whole Court (not just the majority justices in Knick) granted summary relief, vacated the judgment of the Ninth Circuit and ordered “further proceedings not inconsistent with the decision in Knick.” Lumbard  is also “in process,” as discussed in the attached Petition. The Court’s handling of the earlier Ninth Circuit plaintiff is at least some indication of the direction the Court may take in the case of the Petition now before it. 

Next Steps at the Supreme Court and Timing

Here is a good brief summary on Supreme Court process from A Reporters Guide to Applications Pending Before The Supreme Court of the United States:

Q:How long does it take the Court to act, once a petition has been filed?

A: On the average, about six weeks. Once a petition has been filed, the other party has 30 days within which to file a response brief, or, in some cases waive his/her right to respond. Once the 10 day period for receiving a reply brief has passed, the case is circulated to the Justices and placed on a conference list, for consideration at one of the Justices’ private Friday conferences. Copies of conference lists are available to news reporters for their convenience ONLY, and not for publication. Cases appearing on a conference list may reasonably be expected to appear on the following Monday’s Order List (the announcement of dispositions in pending cases) although this is not always the case. If a case does not appear, it will be relisted for consideration at a future conference. If the petition is granted, the petitioner has 45 days within which to file a brief on the merits, and the respondent has 35 days within which to file the brief in response, for a total of about 80 days. The petitioner may then file a reply brief up to one week prior to the date oral argument has been scheduled.  

The City of Ann Arbor’s Response Brief, if any, looks like it will be due on September 3, 2019. We will have the official date from the Supreme Court shortly. The Plaintiffs’ Reply Brief will be filed no later than September 13, so its reasonable to expect the Petition will be circulated to the nine Justices the week of September 16, 2019.

Irvin Mermelstein


In PA takings case, US Supreme Court rejects legal basis for 5-year City defense of Footing Drain Disconnection Program; High Court overturns both pillars of City case and Sixth Circuit judgement against homeowners

5-4 majority opinion by Chief Justice Roberts gives FDD homeowners a big win

Lumbard class action appeal heads to US Supreme Court; Reasons for cautious optimism at the Supreme Court

I reported in my earlier post about the Knick v Township of Scott case, in which the only two precedents supporting the City’s FDD arguments and the favorable opinion it obtained in the Sixth Circuit of Appeals were in deep jeopardy in the United States Supreme Court.

I’m pleased to report that the decision in Knick was handed down on June 21, 2019 and FDD homeowners in Ann Arbor had a big win. The United States Supreme Court exceeded our expectations and threw out both cases that were used by the City and its lawyers in tandem to “preclude” the Class Action Plaintiffs from a single day in federal court. The Court’s decision is a game changer for litigation on behalf of FDD homeowners in Ann Arbor.

Chief Justice Roberts Writes for 5-4 Majority

Chief Justice Roberts wrote the opinion in Knick and summed up the problems faced by the class plaintiffs in the FDD litigation since 2014 in a few paragraphs:

The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law. 

Williamson is the only reason the FDD plaintiffs were forced to litigate first in state court, on the City’s home court. 4 years of difficult, expensive and ultimately pointless state court proceedings, or even one day, would not have occurred but for the Williamson case. Without that case, the FDD claimants would have filed and stayed in an independent federal court, before a life-tenured US District Judge, from day 1. The FDD Class Plaintiffs obeyed Williamson to the letter in state court. We did exactly as Justice Roberts describes above.

The Chief Justice says this was supposed to be the end of the burden of state litigation on the municipality’s home court:

The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court.

Instead, as Justice Roberts explains, the plaintiff in Knick–exactly like the FDD Class Plaintiffs–were intentionally deprived of a day in federal Court. That was precise objective of the City and its lawyers in the FDD litigation.

But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005), a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.

As stated, that was the whole point of the City’s litigation strategy in the FDD cases. In Knick, however, the City’s strategy (while still in progress) was finally under the microscope of the only court with the power to rid the law of the Williamson/San Remo “Catch-22.” Justice Roberts did not pick nits in response:

The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials,” and the settled rule is that “exhaustion of state remedies ‘is not a prerequisite to an action under [42 U. S. C.] §1983.’” Heck v. Humphrey, 512 U. S. 477, 480 (1994) (quoting Patsy v. Board of Regents of Fla., 457 U. S. 496, 501 (1982)). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court.

[Emphases added.] That is exactly what happened to the FDD Class Action Plaintiffs and the class of FDD homeowners in federal court in January.

Justice Roberts went even further than we had hoped. The Court overturned Williamson and the whole case argued by the Township:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable  Fifth Amendment takings claim when the government takes his property without paying for it. … [T]he property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.

The Court stated that Fifth Amendment takings claims that had been made a “stepchild” of the Bill of Rights were now “restored.” I and my co-counsel, Dan O’Brien, Esq., have represented the Class Plaintiffs in the Lumbard litigation as they went through the Williamson and San Remo processes and its indignities, now banished from the legal system entirely. We will continue to represent them vigorously and zealously. Their case is brought on their own behalf and on behalf of all owners of homes where the City completed mandatory footing drain disconnections under the Footing Drain Disconnection Program.

City and Mlive reports of the death of the FDDP Class Action were premature

In January, Mlive’s coverage of the Sixth Circuit’s decision featured the City’s supposed big win, commentary by the City Attorney, and an obituary for the FDD Class Action. Knick in a legal instant (“eo instante“) left the City’s case in ashes and “restored” the rights of of owners of FDD homes to file their federal claims before an independent federal court in the first place. We have no plans for any further proceedings in state court.

FDD Federal Class Action heads to US Supreme Court

We are in the midst of preparing a Petition for Supreme Court review in the Lumbard case–the one currently in court. This is an important step. The due date for filing is now July 29, 2019, two weeks away. The City will have 30 days to respond to the Petition, if the City wishes to respond at all.

Lumbard is among a very few federal “preclusion” cases that were decided under Williamson/San Remo while the plaintiffs were waiting for Knick to come down, including us. One of the other plaintiffs whose case is in that posture, from the Ninth Circuit, to petitioned the Court for review, arguing the case would come out in his favor if Knick were applied.

The Court quickly granted the Petition, reviewed the case, and summarily “vacated” (wiped out) the judgement of the Ninth Circuit. The case was returned to federal court for proceedings “not inconsistent” with Knick, which is now the Law of the Land. There is reason for some cautious optimism about the Court’s treatment of the FDD Class Action Plaintiffs’ Petition.

Irvin Mermelstein


Progress Report: In FDD Federal Class Action, US Supreme Court Justice Sonia Sotomayor extends time for Plaintiffs to seek High Court Review of Sixth Circuit Ruling

This is important information for owners of homes in the City of Ann Arbor where a “footing drain disconnection” (FDD) was performed under the City of Ann Arbor FDD Program.

On October 20, 2017, four Ann Arbor homeowners filed a class action complaint in federal court claiming that the permanent FDD construction and installations in their home under the FDD Program (i) destroyed original construction, (ii) occupies space and (iii) is otherwise a burdensome violation of their rights under the Fifth Amendment’s edict that “private property [shall not] be taken for public use, without just compensation.” The case was brought on behalf of all FDD homeowners in the City limits.

On January 10, 2019, the Sixth Circuit US Court of Appeals in Cincinnati regrettably dismissed these meritorious claims that FDDs were and continue to be unlawful installations of functional parts of the City sewer system in their homes for them to operate, maintain and replace at their expense.

Both the City and the local press reported this result in the Sixth Circuit as if it ended the FDDP Federal Class Action. Nothing could be further from the truth.

United States Supreme Court

Case in point, on May 16, 2019, the FDD Class Action Plaintiffs began the process for appealing to the United States Supreme Court. They made a motion requesting additional time for filing their Petition for the Court’s review. The Supreme Court assigned Application No. 18A1198 to the case, Lumbard et al v City of Ann Arbor.

As the letter from the Supreme Court (linked here) states, on May 21, 2019, Justice Sonia Sotomayor granted the Plaintiffs’ Motion and set July 29, 2019, as the deadline for filing their petition for review. Justice Sotomayor has supervisory jurisdiction relating to the Sixth Circuit.

Vulnerability of City’s case on appeal to the Supreme Court

The City’s case in the Sixth Circuit and the resulting decision by the court rested entirely on a Supreme Court precedent–the highly controversial 2005 decision in San Remo Hotel vs City of San Fransisco. San Remo was the Sixth Circuit’s authority that the FDD Class Plaintiffs were barred–“precluded”–from an independent federal forum for adjudication of federal claims under the federal Fifth Amendment.

San Remo, however, may soon be gone. In 2017, the United States Supreme Court accepted a case, Knick v Township of Scott, that provides the Court the opportunity to overturn San Remo, which would bring the Sixth Circuit decision into immediate question. This follows years of attacks on San Remo by the federal judiciary and legal scholars as unjust, harsh and wrongly decided.

We expect to be learning whether San Remo lives or dies within the next 30 days: the Supreme Court will hand down its decision by then.

At the two Oral Arguments in Knick, a supermajority of Justices expressed strong hostility toward San Remo and its consequences

The threat to San Remo is evident from the statements of the Justices. There were two sessions of Oral Argument at the Supreme Court in Knick, on October 7, 2018 and January 16, 2019. This is highly unusual. The Town of Scott argued the side of municipalities like Ann Arbor, that San Remo should remain good law. The statements of the Justices were more sharply critical of San Remo at the second Oral Argument than the first.

By the end of the two Oral Arguments in Knick, a clear supermajority of the Justices (including Justices Kagan, Sotomayor, Breyer, Chief Justice Roberts, and Justices Gorsuch and Alito) had made their opposition to San Remo completely clear to eliminate the same kind of preclusion from federal court of federal “takings” claims that just occurred in the FDD Federal Class Action. At the Second Oral argument Chief Justice Roberts and Justice Alito mocked the fondness of municipal lawyers for San Remo as a tool to inflict additional cost and time on federal plaintiffs with federal property claims under the Fifth Amendment.

Former Justice Anthony Kennedy wrote an influential opinion in another case calling for the Court to overturn San Remo at the next opportunity.

A further reason the Supreme Court Justices were in such agreement was that the US Solicitor General entered the case to argue persuasively in court that San Remo has to go as unjust and wrongly decided. Arguments of the Solicitor General are given great weight.

The timing of the Motion for additional time to file the Plaintiffs’ petition for review was strategic and allows us time to file a petition for review after the Court’s action in Knick when its impacts will be known and can be evaluated.

We will keep the community posted and communicate about other important subjects in the meantime.

The dates to watch, then, are:

  • By July 3, 2019: Decision of Supreme Court in Knick v Township of Scott.
  • July 29, 2019: Deadline for filing FDD Plaintiffs’ Petition for Writ of Certiorari
  • By August 27, 2019: City would have the option to file an opposition to the Petition or waive the filing, very possibly with San Remo having been overturned.

Irvin Mermelstein