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`No. ________
`
`
`
`In The
`Supreme Court of the United States
`
`
`
`
`
`
`
`TINA GERLACH,
`
`Petitioner,
`
`v.
`TODD ROKITA, in his official capacity as
`Indiana Attorney General and his individual
`capacity; KELLY MITCHELL, in her official
`capacity as Indiana Treasurer; CURTIS HILL,
`in his individual capacity, and AARON
`NEGANGARD, in his individual capacity,
`Respondents.
`
`
`
`
`
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals
`for the Seventh Circuit
`
`
`
`
`
`
`
`
`APPLICATION TO THE HONORABLE AMY CONEY BARRETT FOR AN
`EXTENSION OF TIME WITHIN WHICH
`TO FILE A PETITION FOR WRIT OF CERTIORARI
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`J. DAVID BREEMER
` Counsel of Record
`DEBORAH J. LA FETRA
`Pacific Legal Foundation
`555 Capitol Mall, Suite 1290
`Sacramento, CA 95814
`Telephone: (916) 419-7111
`JBreemer@pacificlegal.org
`
`
`Counsel for Petitioner
`
`
`
`

`

`
`To the Honorable Amy Coney Barrett, Justice of the Supreme Court of the United
`
`1
`
`States and Circuit Justice for the Seventh Circuit:
`
`
`
`Pursuant to Supreme Court Rule 13.5, Petitioner Tina Gerlach respectfully
`
`requests an extension of time of 29 days to file her Petition for Writ of Certiorari in
`
`this Court up to and including July 3, 2024.
`
`JUDGMENT FOR WHICH REVIEW IS SOUGHT
`
`
`
`The judgment for which review is sought is Gerlach v. Rokita (attached as
`
`Exhibit 1). The Seventh Circuit issued its decision on March 6, 2024. Ms. Gerlach did
`
`not seek rehearing. The Petition is presently due on June 4, 2024. This application
`
`for an extension of time is filed more than ten days prior to that date.
`
`JURISDICTION
`
`
`
`This case arises under the Fifth and Fourteenth Amendments to the United
`
`States Constitution and 42 U.S.C. § 1983. Specifically, this case asks whether the
`
`states’ constitutional duty to pay just compensation when taking private property
`
`waives the states’ immunity from suits seeking damage for a violation of the Takings
`
`Clause and whether property owners may sue state officials in their individual
`
`capacity for a violation of the Takings Clause under 42 U.S.C. § 1983. This Court has
`
`jurisdiction over a timely filed petition for writ of certiorari in this case pursuant to
`
`28 U.S.C. § 1254.
`
`REASONS FOR GRANTING EXTENSION OF TIME
`
`
`
`Petitioner’s undersigned Counsel of Record requires extra time to file a petition
`
`in this case because counsel has recently reached an agreement to represent
`
`

`

`
`Petitioner and counsel needs time to become familiar with the full record in this case
`
`2
`
`so as to draft a cogent and compelling petition. Moreover, Counsel of Record was on
`
`a pre-planned vacation form April 30–May 4, 2024, during the present briefing
`
`period, and will also be out of his office from May 17–23, 2024, also during the present
`
`briefing period. Counsel also has other litigation responsibilities during the current
`
`Petition briefing period.
`
`Petitioner’s counsel apprised Respondents’ counsel of this motion and asked
`
`Respondents to advise as to whether they oppose the requested extension, but did not
`
`receive a response.
`
`CONCLUSION
`
`For these reasons, Petitioner requests that this Court grant an extension of 29
`
`days, up to and including July 3, 2024, within which Petitioner Gerlach may file a
`
`petition for writ of certiorari.
`
`DATED: May 6, 2024.
`
`
`
`
`
`
`
` Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`J. DAVID BREEMER
` Counsel of Record
`DEBORAH J. LA FETRA
`Pacific Legal Foundation
`555 Capitol Mall, Suite 1290
`Sacramento, CA 95814
`Telephone: (916) 419-7111
`JBreemer@pacificlegal.org
`
`
`Counsel for Petitioner
`
`
`
`
`
`

`

`
`
`3
`
`CERTIFICATE OF SERVICE
`
`A copy of this application was served via email and U.S. mail to counsel listed
`
`below in accordance with Supreme Court Rules 22.2 and 29.3:
`Kyle Hunter
`
`
`
`Kyle.Hunter@atg.in.gov
`Benjamin M. L. Jones
`
`
`Benjamin.Jones@atg.in.gov
`Natalie Weiss
`
`
`
`Natalie.Weiss@atg.in.gov
`Office of the Attorney General
`IGCS 5th Floor
`302 W. Washington Street
`Indiana Government Center South
`Indianapolis, IN 46204-2770
`Telephone: (317) 522-9814
`
`Counsel for Respondents
`
`
`
`DATED: May 6, 2024.
`
`
`
`
`_______________________________
`J. DAVID BREEMER
` Counsel of Record
`Pacific Legal Foundation
`555 Capitol Mall, Suite 1290
`Sacramento, CA 95814
`Telephone: (916) 419-7111
`JBreemer@pacificlegal.org
`Counsel for Petitioner
`
`

`

`
`
`
`
`
`Exhibit 1
`Exhibit 1
`
`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`95 F.4th 493
`United States Court of Appeals, Seventh Circuit.
`
`Tina GERLACH, Plaintiff-Appellant,
`v.
`Todd ROKITA, et al., Defendants-Appellees.
`
`No. 23-1792
`|
`Argued January 25, 2024
`|
`Decided March 6, 2024
`
`Synopsis
`Background: Owner of dormant property, some of which she had reclaimed, brought § 1983 action against Indiana officials in
`their official and individual capacities, alleging that they violated the Fifth Amendment's Takings Clause by failing to pay her
`for interest accrued while reclaimed property was in state custody, and seeking just compensation as well as declaratory and
`injunctive relief. Defendants moved for judgment on the pleadings. The United States District Court for the Southern District
`of Indiana, Tanya Walton Pratt, Chief Judge, 2023 WL 2683132, granted defendants' motion and dismissed complaint with
`prejudice. Owner appealed, and while appeal was pending, Indiana modified governing statute to require that interest be paid
`on all property recovered thereunder, even if that property did not earn interest prior to state taking custody.
`
`Holdings: The Court of Appeals, St. Eve, Circuit Judge, held that:
`
`in light of the change to the Revised Indiana Unclaimed Property Act, owner's claim for prospective relief was moot;
`
`even if the Fifth Amendment Takings Clause created an implied direct cause of action by its text alone, owner's claims against
`Indiana officials in their official capacities for past Takings Clause violations, which were, in effect, claims against the State of
`Indiana itself, were barred by Eleventh Amendment sovereign immunity;
`
`owner's § 1983 claim for compensatory relief against current and former Indiana officials in their individual capacities was
`really a claim against the state; and
`
`because owner's § 1983 claim for compensatory relief against current and former Indiana officials in their individual capacities
`was really a claim against the state, it was doubly barred, first because § 1983 did not create a cause of action against the state
`and, second, because Indiana enjoyed sovereign immunity under the Eleventh Amendment.
`
`Affirmed.
`
`Procedural Posture(s): On Appeal; Motion for Judgment on the Pleadings; Request for Declaratory Judgment; Motion for
`Permanent Injunction.
`
`*495 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:22-
`cv-00072 — Tanya Walton Pratt, Chief Judge.
`
` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
`
`1
`
`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`Attorneys and Law Firms
`
`Garrett D. Blanchfield, Jr., Roberta A. Yard, Attorneys, Reinhardt Wendorf & Blanchfield, Minneapolis, MN, Matthew Todd
`Hurst, Matthew T. Heffner, Attorneys, Heffner Hurst, Chicago, IL, Charles R. Watkins, Attorney, Guin, Stokes & Evans, LLC,
`Oak Park, IL, for Plaintiff-Appellant.
`
`Melinda R. Holmes, Kyle Hunter, Benjamin M. L. Jones, Natalie Weiss, Attorneys, Office of the Attorney General, Indianapolis,
`IN, for Defendants-Appellees.
`
`Before Wood, Scudder, and St. Eve, Circuit Judges.
`
`Opinion
`
`St. Eve, Circuit Judge.
`
`*496 Tina Gerlach alleges that Indiana officials violated her right to just compensation under the Fifth Amendment's Takings
`Clause. She brings claims seeking declaratory and injunctive relief against and just compensation from various current and
`former Indiana state officers in their official and individual capacities. Because her claim for prospective relief is now moot
`and her claims for retrospective relief are barred by the Eleventh Amendment and unavailable under 42 U.S.C. § 1983, we
`affirm the district court's dismissal.
`
`I. Background
`
`A. Factual Background
`Under the Revised Indiana Unclaimed Property Act (the “Act”), Indiana takes custody of unclaimed property belonging to
`Indiana citizens after a specified period of dormancy. This property can include unclaimed wages, unclaimed insurance proceeds,
`and uncashed checks held by private and public entities such as banks and insurance companies. Ind. Code § 32-34-1.5-4.
`The Indiana attorney general takes possession of and deposits the unclaimed property in an account, which in turn is used to
`satisfy claims made by rightful owners for their property. Ind. Code §§ 32-34-1.5-14, 32-34-1.5-42. The attorney general then
`transfers any amount beyond what is necessary to satisfy those claims to the Indiana state treasurer, who places them in Indiana's
`abandoned property fund. Ind. Code § 32-34-1.5-42. At periodic intervals, the treasurer transfers any amount over $500,000
`to Indiana's general fund. Ind. Code § 32-34-1.5-44(b).
`
`In the past, Indiana did not compensate owners for interest the property earned while in state custody when satisfying claims
`for that property. After a previous lawsuit challenging this practice, Indiana began paying interest on reclaimed funds so long
`as the property also earned interest prior to Indiana taking custody. See Cerajeski v. Zoeller, 735 F.3d 577, 582 (7th Cir. 2013).
`Indiana, however, maintained its policy of not paying interest on property that did not earn interest before coming into state
`custody. Subsequent decisions from this court have clarified that any failure to pay interest on reclaimed property, even if that
`property was not interest-bearing prior to state custody, violates the Fifth Amendment of the United States Constitution. See
`Goldberg v. Frerichs, 912 F.3d 1009 (7th Cir. 2019); Kolton v. Frerichs, 869 F.3d 532 (7th Cir. 2017).
`
`Pursuant to the Act, the Indiana attorney general took custody of two separate pieces of dormant property owned by Tina
`Gerlach. Both are valued at over $100. Gerlach reclaimed one of those pieces of property valued at $100.93, and after approving
`her claim, Indiana returned that property. She has not yet asserted a claim for the second piece of property. Neither piece of
`property earned interest prior to being in state custody, and when Indiana returned Gerlach's reclaimed property, it did not
`compensate her for interest accrued while in state custody.
`
`B. Procedural Background
`
` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
`
`2
`
`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`In 2022, Gerlach sued several current and former state officials in federal court, alleging violations of the Fifth Amendment
`Takings Clause. Count I of Gerlach's complaint seeks declaratory and injunctive relief against Indiana Attorney General Todd
`Rokita and Indiana Treasurer Kelly Mitchell *497 1 in their official capacities. Count II is a direct suit for compensation
`pursuant to the Fifth Amendment as applied to the states by the Fourteenth Amendment, and, like Count I, is against Rokita
`and Mitchell in their official capacities. Count III seeks compensatory relief under 42 U.S.C. § 1983 for alleged constitutional
`violations by Rokita, former acting Attorney General Aaron Negangard, and former Attorney General Curtis Hill, in their
`individual capacities.
`
`1
`
`Mitchell's term in office has since ended. The current Indiana Treasurer is Daniel Elliott. Pursuant to Federal Rule of
`Appellate Procedure 43(c)(2), Treasurer Elliott is hereby substituted for Mitchell.
`In June 2022, Rokita, Mitchell, Negangard, and Hill (“Defendants”) moved for judgment on the pleadings under Federal Rule
`of Civil Procedure 12(c), arguing that Gerlach's claim for prospective relief was moot and her claims for retrospective relief
`were barred by the Eleventh Amendment. In support of their assertion that Gerlach's claim for prospective relief was moot,
`Defendants attached an affidavit from Amy Hendrix, the Director of Indiana's Unclaimed Property Division, explaining that
`beginning that same month, the attorney general's policy was to pay interest on all returned property, regardless of whether it
`earned interest prior to recovery by the state.
`
`The district court granted Defendants' motion for judgment on the pleadings and dismissed Gerlach's complaint with prejudice.
`Relying on the policy change described in Hendrix's affidavit, the district court found that Gerlach's claim for prospective relief
`was moot. As for her claim for just compensation against Rokita and Mitchell in their official capacities, the district court
`explained that the Eleventh Amendment bars any claim for compensation against state employees in their official capacities.
`The district court also dismissed Gerlach's claim against Rokita, Negangard, and Hill in their individual capacities for two
`reasons. First, it relied on Vicory v. Walton, 730 F.2d 466, 467 (6th Cir. 1984), to find that an individual cannot be held liable for
`a violation of the Takings Clause. And second, it found that the suit was really against the state because Indiana alone benefited
`from the unpaid interest and must pay any compensation owed.
`
`Gerlach appealed, and while that appeal was pending, Indiana passed new legislation, effective July 1, 2023, codifying the
`policy described in Hendrix's affidavit. The Indiana attorney general must now pay interest on all property recovered under the
`Act, even if that property did not earn interest prior to Indiana taking custody. Ind. Code § 32-34-1.5-33(c).
`
`II. Analysis
`
`The Takings Clause of the Fifth Amendment prohibits the taking of private property “for public use, without just compensation.”
`U.S. Const. amend. V. Gerlach's claims arise under this clause, presenting legal questions which we review de novo. Loertscher
`v. Anderson, 893 F.3d 386, 392 (7th Cir. 2018). We also review a district court's decision granting a Rule 12(c) judgment on the
`pleadings de novo. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009).
`
`A. Prospective Relief
`In Count I, Gerlach seeks a declaration that Indiana's failure to pay interest on all property, including property not accumulating
`interest before being taken into state custody, violates the Takings Clause. She also requests an order enjoining the state and its
`officials from future *498 violations encompassed by the declaration. The parties do not dispute that the specific relief sought
`in Count I is moot after legislative changes during the pendency of this appeal. Indiana now requires payment of interest on
`all property recovered under the Act, even if that property did not earn interest prior to Indiana taking custody of it. Ind. Code
`§ 32-34-1.5-33(c). Consequently, there is no relief this court can award that Indiana law does not already provide. See Ozinga
`v. Price, 855 F.3d 730, 734 (7th Cir. 2017) (“When a plaintiff's complaint is focused on a particular statute, regulation, or rule
`
` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
`
`3
`
`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`and seeks only prospective relief, the case becomes moot when the government repeals, revises, or replaces the challenged law
`and thereby removes the complained-of defect.”). 2
`
`2
`
`The district court similarly found Gerlach's claims for prospective relief moot, though on different grounds. Gerlach
`asks that we vacate that ruling, but because the district court's decision raises no preclusion concerns, we decline to
`do so. See Mitchell v. Wall, 808 F.3d 1174, 1176 (7th Cir. 2015) (explaining that vacatur is appropriate “to prevent the
`district court's unreviewed decision from having a preclusive effect in subsequent litigation between the parties”).
`On appeal, Gerlach suggests for the first time that Indiana's method of calculating interest may nevertheless violate the Takings
`Clause requirement that compensation be “just.” But any declaratory relief related to the calculation of interest is distinct from
`the relief she sought in her complaint. As such, she cannot raise this claim for the first time on appeal. See Joyce v. Morgan
`Stanley & Co., Inc., 538 F.3d 797, 802 (7th Cir. 2008) (noting that a plaintiff “may not amend the complaint on appeal to state
`a new claim” (internal quotations omitted)).
`
`B. Compensatory Relief Against Employees as Officers
`Gerlach's claim for compensatory relief in Count II against the attorney general and treasurer faces two obstacles. First, because
`she brings this claim directly under the Fifth Amendment, she must demonstrate that the Fifth Amendment Takings Clause
`creates an implied direct cause of action by its text alone. Compare Davis v. Passman, 442 U.S. 228, 242–44, 99 S.Ct. 2264,
`60 L.Ed.2d 846 (1979) (finding an implied direct cause of action in the text of the Fifth Amendment Due Process Clause), with
`Egbert v. Boule, 596 U.S. 482, 491, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022) (explaining the Court's reticence to create additional
`implied causes of action for constitutional violations because, “[a]t bottom, creating a cause of action is a legislative endeavor”).
`Neither we nor the Supreme Court have ever recognized a direct cause of action for compensation under the Takings Clause.
`We are aware that the Supreme Court is considering this very question in Texas v. Devillier, No. 22-913 (argued Jan. 16, 2024).
`But even if the Court does find a direct cause of action, the second obstacle—Eleventh Amendment sovereign immunity—
`disposes of Gerlach's claim.
`
`Indiana enjoys “the privilege of the sovereign not to be sued without its consent.” Driftless Area Land Conservancy v. Valcq, 16
`F.4th 508, 520 (7th Cir. 2021) (quoting Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253, 131 S.Ct. 1632, 179 L.Ed.2d
`675 (2011)). The Eleventh Amendment prohibits suits against a state in federal court, whether by its own citizens or citizens of
`another state. U.S. Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). That
`protection extends to state employees sued in their official capacities. See Lewis v. Clarke, 581 U.S. 155, 162, 137 S.Ct. 1285,
`197 L.Ed.2d 631 (2017) *499 (“In an official-capacity claim, the relief sought is only nominally against the official and in
`fact is against the official's office and thus the sovereign itself.”).
`
`States' sovereign immunity, however, is not without exception. Ex parte Young permits a narrow set of claims against state
`officials “when a plaintiff seeks prospective relief against an ongoing violation of federal law.” Driftless, 16 F.4th at 520–
`21 (citing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)); see also Ex
`parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). As for claims seeking a monetary judgment, only congressional
`abrogation or waiver by the state itself can overcome a state's sovereign immunity. Ind. Prot. & Advoc. Servs. v. Ind. Family &
`Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010); Garrett v. Illinois, 612 F.2d 1038, 1040 (7th Cir. 1980).
`
`Here, Gerlach seeks monetary relief for past Takings Clause violations from state-employee defendants in their official
`capacities. These claims are, in effect, claims against the State of Indiana itself and thus barred absent an applicable exception
`to Indiana's sovereign immunity. See Lewis, 581 U.S. at 162, 137 S.Ct. 1285. Gerlach seeks retrospective relief, so Ex parte
`Young cannot help her. See Pavlock v. Holcomb, 35 F.4th 581, 591 (7th Cir. 2022). Nor has Indiana waived its immunity, and
`Congress has not abrogated it, either.
`
`Gerlach nevertheless argues that because Indiana courts are closed to her claim for compensation, she must have recourse in
`federal court. We are not persuaded. Even if there is a viable exception to a state's sovereign immunity where its courts are not
`
` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
`
`4
`
`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`open to Takings Clause compensation claims—an exception this court has never recognized—Indiana courts are open to hear
`Gerlach's claim for just compensation. 3
`
`3
`
`Because Indiana courts are open to Gerlach's claims, we need not decide whether she could bring a claim for
`compensation in federal court if no state provision for compensation existed. We have noted that other circuits have held
`that sovereign immunity protects states “from takings claims for damages in federal court, so long as state courts remain
`open to those claims,” implying that if state courts were closed, a federal court could force a state to pay damages.
`Pavlock, 35 F.4th at 589. But we our-selves have never held that the unavailability of a state court remedy opens the
`doors of the federal courthouse to not just prospective relief under Ex parte Young but also retrospective relief and
`payment of money compensation.
`Courts recognizing this exception have made clear that the critical issue, for purposes of determining whether state courts are
`open to Takings Clause claims, is whether state law recognizes a cause of action for a takings claim. The cases do not turn on
`whether a plaintiff is likely to succeed in state court. See O'Connor v. Eubanks, 83 F.4th 1018, 1024 (6th Cir. 2023) (concluding
`that a remedy is available in state court because “the Michigan Supreme Court has adjudicated takings claims against the State
`under the Fifth and Fourteenth Amendments,” and consequently the Eleventh Amendment protects the state from suit in federal
`court); EEE Minerals, LLC v. North Dakota, 81 F.4th 809, 816 (8th Cir. 2023) (explaining that a suit for injunctive relief against
`the state in federal court is unavailable because the state provides for compensation through the state courts); Williams v. Utah
`Dep't of Corr., 928 F.3d 1209, 1213–14 (10th Cir. 2019) (holding that because Utah state courts address Fifth Amendment
`takings claims, those courts are open); see also *500 Skatemore, Inc. v. Whitmer, 40 F.4th 727, 735 (6th Cir. 2022) (concluding
`that because Michigan state courts do hear federal takings claims against the State of Michigan, state courts “remain open”).
`
`Under this standard, Indiana state courts are open to Gerlach's claims because the state allows for inverse condemnation and
`uncompensated takings claims. See Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010) (explaining the availability
`of a suit for inverse condemnation and recovery of compensation); see also State v. Kimco of Evansville, Inc., 902 N.E.2d 206,
`210–11 (Ind. 2009) (explaining that the Fifth Amendment Takings Clause and a parallel provision in the Indiana Constitution
`are “textually indistinguishable and are to be analyzed identically,” and outlining the analysis Indiana courts apply when a
`takings claim is brought under either); Ind. Code § 32-24-1-16 (authorizing inverse-condemnation suits against the State of
`Indiana for compensation). 4
`
`4
`
`Gerlach urges us to adopt a more exacting test to determine whether Indiana state courts are open to her claims. She
`points to Kolton, in which we analyzed whether Illinois state courts were open to hear similar claims of Takings Clause
`violations seeking damages from state employees in their official capacities under § 1983. See 869 F.3d at 533, 535.
`But that analysis came in the context of a now-overruled Supreme Court case requiring plaintiffs to exhaust state court
`remedies for takings violations prior to bringing those same claims in federal court. See Williamson Cnty. Reg'l Plan.
`Comm'n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), overruled by Knick v. Township of
`Scott, 588 U.S. 180, 139 S. Ct. 2162, 2167, 204 L.Ed.2d 558 (2019). We concluded that Williamson County's exhaustion
`rule did not apply “when state law unequivocally denies compensation,” as Illinois statutory law and an Illinois Supreme
`Court ruling did, even though Illinois provided a cause of action for takings more generally. Kolton, 869 F.3d at 535.
`As Kolton itself makes clear, this (now defunct) rule of exhaustion was a separate question from whether a plaintiff could
`overcome sovereign immunity when suing a state. There, we explained that the exhaustion requirement in Williamson
`County did not disturb the immunity enjoyed by states and state officials. Id. at 535–36. Consequently, we decline to
`adopt Kolton's exhaustion test for whether state courts are open for purposes of sovereign immunity, although we again
`note that it is unsettled whether lack of recourse in state courts could overcome sovereign immunity to permit a federal
`court to force a state to pay compensation.
`Because Indiana state courts are open to hear Gerlach's claims and because no exception to Eleventh Amendment sovereign
`immunity applies, she cannot obtain compensation in federal court from the Indiana-official defendants.
`
` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
`
`5
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`

`

`Gerlach v. Rokita, 95 F.4th 493 (2024)
`
`C. Compensatory Relief Against Employees as Individuals
`Gerlach finally brings a § 1983 claim for compensatory relief against current and former Indiana officials Rokita, Negangard,
`and Hill in their individual capacities. Section 1983 makes a “person” liable for statutory and constitutional violations committed
`“under color” of state law. But even though Gerlach names individual current and former state employees, we are “obliged to
`consider whether [this claim] may really and substantially be against the state.” Luder v. Endicott, 253 F.3d 1020, 1023 (7th Cir.
`2001) (citing Coeur d'Alene Tribe, 521 U.S. at 270, 117 S.Ct. 2028); see also Pennhurst State Sch. & Hosp. v. Halderman, 465
`U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (noting that even when a suit is nominally against individual state employees,
`“a question arises as to whether the suit is a suit against the State itself”). A plaintiff cannot circumvent the sovereign immunity
`enjoyed by states and their employees in their official capacities simply by pleading *501 a cause of action against those same
`employees as individuals.
`
`Where “the judgment sought would expend itself on the public treasury or domain,” the suit is against the sovereign, not the
`individual. Pennhurst, 465 U.S. at 101 n.11, 104 S.Ct. 900 (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d
`15 (1963)); see also Haynes v. Indiana Univ., 902 F.3d 724, 732 (7th Cir. 2018) (explaining that a suit is really against the state
`when “[t]he money will flow from the state treasury to the plaintiff[ ]” (quoting Luder, 253 F.3d at 1024)). Even if the sought
`after compensation would not definitively be paid out of the state treasury, if the amount the plaintiff seeks “should have been
`paid by the State,” the suit is likely one against the state itself. See Lenea v. Lane, 882 F.2d 1171, 1172, 1178 (7th Cir. 1989)
`(quoting Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985)).
`
`Any compensation Gerlach seeks correlates directly to the interest her property earned while in state custody—interest that
`flowed to the state, not individual state employees. 5 The money Gerlach seeks is in the state coffers, not the personal bank
`accounts of Indiana's current and former attorneys general. Targeting individual state employees for those funds does not change
`the fact that the amount she claims she is owed should have been paid by the state. See Lenea, 882 F.2d at 1178. Because the
`State of Indiana benefited from retaining interest earned on Gerlach's property, we conclude that Gerlach's suit for compensatory
`relief is actually against the State of Indiana. See Kolton, 869 F.3d at 536.
`
`5
`
`At oral argument, Gerlach's counsel admitted that “the damages would obviously be tied ... nearly one hundred percent
`to the underlying just compensation calculation,” and conceded that she could not win double recovery. In other words,
`if Gerlach could recover compensation from the state under Count II, then she would be barred from recovery under
`Count III. This supports that Count III is “really and substantially ... against the state.” See Luder, 253 F.3d at 1023.
`Since Gerlach's claim for compensatory relief is against the state, her claim is doubly barred—first because § 1983 does not
`create a cause of action against a state and second because Indiana enjoys sovereign immunity under the Eleventh Amendment.
`Id. at 535; see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Finding that Gerlach's
`claim is really against the state, we need not resolve whether an individual can be held liable for a Fifth Amendment takings
`violation. Accordingly, the district court correctly dismissed her claim for compensation under § 1983.
`
`For these reasons, we AFFIRM the district court's dismissal of Gerlach's claims.
`
`III. Conclusion
`
`All Citations
`
`95 F.4th 493
`
`End of Document
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`© 2024 Thomson Reuters. No claim to original U.S. Government Works.
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` © 2024 Thomson Reuters. No claim to original U.S. Government Works.
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