FDD Class Action Progress in US Supreme Court: City of Ann Arbor Waives Right to Respond to Homeowners’ Petition for SCOTUS Review and Relief

City Will File Opposition Only if Requested by the Supreme Court Justices

In January 2019, the Homeowner Plaintiffs in the FDD Federal Class Action (Lumbard, et al. v City of Ann Arbor) were handed a disappointment when the Sixth Circuit Court of Appeals affirmed the dismissal of their claims by the US District Court in Detroit.

On June 21, 2019, however, the Supreme Court handed down its much-anticipated decision in Knick v Township of Scott. We posted about the case before and after the decision in June.

The Court there was faced with compelling arguments by the homeowner, Rose Knick, for overturning two decisions that, in combination, produced a tactic referred to by the Chief Justic as the “San Remo preclusion trap” employed by municipal governments to extinguish federal Fifth Amendment claims without a hearing for the plaintiffs.

Chief Justice John Roberts exceeded our wishes. He did not perpetuate the legal mess that litigation of federal private property claims had become. Rather, he burned to the ground the entire legal and procedural structure that produced both the City’s San Remo Trap tactics against the Homeowner Plaintiffs in federal court and the Sixth Circuit opinion based on the City’s arguments. The Opinion of the Supreme Court particularly condemned the use of the San Remo “traps” by municipalities, the only intended result of which was to deny meritorious federal plaintiffs their day in Court.

Mlive and the City Attorney were very vocal and positive in their assertions that the litigation over the FDDP was at an end. In a press release, the City Attorney ventured that “[n]one of this litigation should have ever been filed.” He continued that “[t]his case has tied up the time of one state trial court judge, three state court of appeals judges, one federal district court judge and now 20 federal court of appeals judges.” According to the Supreme Court in Knick, however, it’s the municipalities, not the property owners, that are responsible for this waste of judicial time.

Now that the decision in Knick went the FDD Homeowners’ way, the City has waived its only right to file a Response to the Petition with the Supreme Court. The document filed by the City on August 26, 2019, signed by Abigail Elias, says that “I do not intend to file a Response to the petition for a writ of certiorari unless one is requested by the Court.” This time, no press release from the City Attorney, Stephen Postema.

What is the timeline from here? The Lumbard case is Supreme Court Case No. 19-150. Following the City’s Waiver, the Petition will now be circulated to all the Justices. There is a “cert. pool” of Supreme Court clerks who will review and analyze the Petition for seven of the Justices. Two still are briefed by their own Clerks. The next hurdle is for the case to be put on a “conference list” for one of the Justices’ private Friday conferences.

Here is some further description of the Court’s prodedure from Wikipedia:

Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the “discuss list”; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be “re-listed” for discussion at a later conference. This occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted. The votes of four Justices at conference (see Rule of four) will suffice to grant certiorari and place the case on the court’s calendar.

In fact, the Solicitor General of the United States did intervene in the Knick case on the side of the homeowner. So, the Justices may very well want to hear General Noel Fransisco’s thoughts.


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