                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
BENJAMIN COLEMAN, through his   )
Conservator, ROBERT BUNN,        )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 13-1456 (EGS)
          v.                     )
                                 )
DISTRICT OF COLUMBIA,            )
                                 )
               Defendant.        )
________________________________)

                       MEMORANDUM OPINION

  In the District of Columbia, as in many other jurisdictions, a

homeowner who fails to pay property taxes runs a great risk. A

delinquent property-tax bill becomes a lien, held by the

District, on the homeowner’s property. Continued failure to pay

the delinquent tax bill creates the risk that the District will

sell the property to satisfy the taxes. This practice of

engaging in “tax sales” has long been recognized as a generally

valid exercise of the government’s power to collect taxes.

  The devil, however, is in the details. In D.C., the tax-sale

process begins with the sale at auction of a tax lien on the

property to a third party. The homeowner may satisfy that lien

by paying his delinquent tax bill, but the purchaser of the lien

is able to add on top of that bill various costs, including

attorney’s fees. In Mr. Coleman’s case, that caused what began
as a $133.88 tax bill to become a total of over $5,000, all of

which needed to be paid before the lien would be satisfied.

  Once the lien is sold to the third party, a six-month waiting

period begins, during which the homeowner may redeem his home by

paying the taxes, along with any penalties, costs, and interest

that are owed. If the entire bill is not paid upon expiration of

the waiting period, the tax-lien purchaser may initiate

proceedings in the Superior Court of the District of Columbia to

foreclose. The Superior Court is empowered to enter a judgment

vesting a fee simple title in the property in the tax-lien

purchaser. In this way, a small sum paid to purchase the lien

becomes full title to a property worth hundreds of thousands of

dollars (in this case, approximately $200,000). The key detail

in this case is that D.C. law provides that any surplus equity

the homeowner has in his home is irrevocably lost, no matter how

small the tax bill nor how valuable the equity.

  Mr. Coleman brings a limited challenge to this law. He does

not seek to regain his home, does not dispute that the District

may use tax sales to satisfy delinquent property taxes, and

agrees with the District that he owed $133.88 in property taxes,

plus penalties, costs, and interest. Mr. Coleman’s claim is

against the District’s taking of the entire equity in his home.

The District, he asserts, has provided him no compensation for




                                2
the loss of that equity, even though its value far exceeds the

taxes, penalties, costs, and interest he owed.

     Mr. Coleman claims that such a practice is forbidden by the

Takings Clause of the Fifth Amendment to the United States

Constitution. Accordingly, he filed suit seeking an award of

“just compensation,” as well as a declaration from this Court

that the District’s statute is unconstitutional. The District

has moved to dismiss Mr. Coleman’s Complaint, arguing that this

Court lacks jurisdiction for multiple reasons and that, in any

event, Supreme Court precedent holds that the District’s actions

do not violate the Takings Clause. The Court has considered the

District’s motion, the response and reply thereto, as well as

the applicable law and the entire record in this case. The Court

also held a hearing on the motion to dismiss on September 26,

2014. The Court finds that it has jurisdiction over Mr.

Coleman’s claims and accordingly rejects all of the District’s

jurisdictional arguments. The Court also rejects the District’s

argument that prior Supreme Court precedent has foreclosed Mr.

Coleman’s claim under the Takings Clause. Accordingly, the Court

DENIES the District’s motion.

I.        Background

     A.     Statutory Background
	
     The District of Columbia’s laws governing the procedure for

collecting delinquent property taxes are codified in Chapter 13A


                                   3
of title 47 of the D.C. Code. See Revised Real Property Tax

Sales, D.C. Code § 47-1330, et seq. On the day that a tax—

defined as “unpaid real property tax . . . including penalties,

interest, and costs,” id. § 47-1330(2)—becomes delinquent, the

D.C. Code declares that it “shall automatically become a lien on

the real property.” Id. § 47-1331(a). The Code further directs

the District to “sell all real property on which the tax is in

arrears unless otherwise provided by law.” Id. § 47-1332(a).

  Such tax sales follow a procedure set out elsewhere in the

statute. “At least 30 days before” any such sale is to be

advertised, “the Mayor shall mail to the person who last appears

as owner of the real property on the tax roll . . . a notice of

delinquency.” Id. § 47-1341(a). Once thirty days have passed

“from the mailing of the notice of delinquency,” the District

must advertise that the property “will be sold at public auction

because of taxes.” Id. § 47-1342(a). At this public sale, the

District must sell the property “in its entirety,” id. § 47-

1343, “to the purchaser who makes the highest bid.” Id. § 47-

1346(a)(2). Sales are not to be conducted “for less than the

amount of the taxes,” however. Id. § 47-1346(c).

  The purchaser receives “a certificate of sale,” which

describes the property and the sale, and indicates “[t]he amount

of taxes for which the real property was offered for sale.” Id.

§ 47-1348(a). The six months following the date of sale are a


                                4
redemption period, during which the purchaser may not foreclose

the original owner’s right to redeem the property. Id. § 47-

1370(a). The original owner may redeem by paying to the District

“the amount paid by the purchaser . . . exclusive of surplus

with interest thereon,” as well as “other taxes, interest, and

penalties paid by a purchaser,” and “expenses for which the

purchaser is entitled to reimbursement.” Id. § 47-1361(a).

Interest on this amount is calculated at an annual rate of 18%.

Id. §§ 47-1334, 47-1361, 47-1377. If the original owner makes

sufficient payments to the District, the purchaser of the

certificate of sale “shall receive a refund of the payment” with

interest. Id. § 47-1354(b).

  Once the six-month redemption period has passed, “a purchaser

may file a complaint to foreclose the right of redemption of the

real property.” Id. § 47-1370(a). This action must be filed

within one year of the date of sale of the lien, or the

certificate of sale becomes void. See id. § 47-1355(a)(1). Even

if such an action is pending, the original owner “may redeem the

real property at any time until the foreclosure of the right of

redemption is final.” Id. § 47-1360. In adjudicating an action

to foreclose the right of redemption, the Superior Court may

“[v]est title in fee simple in the purchaser.” Id. § 47-

1370(b)(2). The purchaser of the tax-sale certificate must bring

the action against the original owner of the property and the


                                5
District of Columbia, as well as any entity with a particular

interest in the property. See id. § 47-1371(b)(1). The law

permits the Superior Court to issue a final judgment

“foreclosing the right of redemption,” which bars the original

owner from redeeming the property and vests in the purchaser a

deed in fee simple. See id. § 47-1382(a). In doing so, the law

permits the taking of not only the amount of delinquent taxes,

plus any costs, fees, and interest, but also the entirety of the

original owner’s equity in the property.1

  B.   Factual Background

  Benjamin Coleman is a 76-year-old veteran. Compl., ECF No. 1 ¶

26. At all times relevant to this case, he “suffered from severe

dementia,” id. ¶ 27, and this action is brought on Mr. Coleman’s

behalf by Robert Bunn, his guardian who was appointed by the

Superior Court “to manage Mr. Coleman’s legal and financial

affairs.” Id. ¶ 15.

  In 2006, Mr. Coleman failed to pay a $133.88 property tax bill

on his home. Id. ¶ 28. The District placed a tax lien on Mr.

Coleman’s home and added $183.47 in penalties to his preexisting


																																																								
1
     The Court notes that subsequent legislation by the Council of
the District of Columbia will alter the process in many ways.
Most importantly, legislation that is scheduled to take effect
in October 2014 grants homeowners whose homes are sold at tax
auction and subsequently foreclosed upon a right to recover a
substantial portion of the equity they had in their homes. See
Residential Real Property Equity and Transparency Act, 62-31
D.C. Reg. 7763 (Aug. 1, 2014).

                                 6
tax obligation. Id. ¶ 29. The lien—of $317.35—was offered for

sale at a public auction in July 2007, when it was sold to

Embassy Tax Services, LLC (“Embassy”). Id. ¶ 30.

  Embassy filed an action to foreclose Mr. Coleman’s right of

redemption on February 28, 2008. Id. ¶ 33. It demanded $4,999 in

addition to the lien amount of $317.35 from Mr. Coleman. Id. ¶

34. The additional amount was for “court costs, attorney’s fees,

expenses incurred for personal service of process, expenses

incurred for service of process by publication and fees for the

title search.” Id. Embassy filed the action against Mr. Coleman,

as well as the District, although the District “did not file any

specific claims or defenses.” Id. ¶ 35.

  On September 24, 2008, Mr. Coleman’s son sent a handwritten

letter to the Superior Court indicating “that he had recently

moved back into town and had discovered that his father was

‘living alone and had not kept to his medicine.’” Id. ¶ 37. Mr.

Coleman’s son “offered to ‘get most of the payments in on Oct.

3, 2008.’” Id. The Superior Court ultimately held a status

hearing on March 11, 2009, after which it gave Mr. Coleman until

May 27, 2009 to complete his payments. Id. ¶¶ 38–39.

  On May 26, 2009, Mr. Coleman’s son sent another letter to the

Superior Court, noting “that his father had ‘been under the

weather,’ but that his father had paid all of the owed taxes.”

Id. ¶ 40. Mr. Coleman’s son also “offered for his father to make


                                7
monthly payments of $850 beginning June 1, 2009” to satisfy the

additional obligations to Embassy. Id. When no one appeared for

Mr. Coleman at the May 27, 2009 status hearing, the Court tried,

unsuccessfully, to contact his son. See id. ¶ 41. The Court then

adopted the proposed payment schedule, stayed the deadline for

Mr. Coleman to redeem his property, and directed Mr. Coleman and

his son to appear for a June 24, 2009 hearing. Id. That hearing

was rescheduled on multiple occasions. Id. ¶ 42.

  On March 31, 2010, Embassy moved for a default judgment,

noting “Mr. Coleman’s failure to appear, file a responsive

pleading or file a notice of interest in the property.” Id. ¶

43. The Superior Court granted the motion for a default judgment

on June 11, 2010 and issued a judgment “extinguishing any title,

rights, claims and interests that Mr. Coleman had in the

property.” Id. ¶¶ 44–45. The District of Columbia executed a

deed to Embassy on August 31, 2010. See id. ¶ 46. The home at

that time “had a fair market value of approximately $200,000.”

Id.

  On December 16, 2010, Embassy filed with the Superior Court a

petition for writ of possession because Mr. Coleman continued to

reside in his home. Id. ¶ 47. On June 9, 2011, Embassy filed a

complaint with the Superior Court’s Landlord-Tenant Branch and

obtained a default judgment on June 22, 2011. Id. ¶¶ 48–49. Mr.

Coleman was evicted on August 5, 2011. Id. ¶ 50. Embassy sold


                                8
his home for $71,000 in October of 2011. Id. ¶ 51. He continues

to reside in D.C, but “now lives in a group home, a mile from

his former house.” Id. ¶¶ 15, 52.

  C.   Procedural History

  On September 24, 2013, Mr. Coleman brought this lawsuit

against the District of Columbia. See Compl., ECF No. 1. He

alleges that the District’s tax-sale statute violates the

Takings Clause of the Fifth Amendment to the United States

Constitution by taking a homeowner’s surplus equity and

transferring it to a private party without just compensation or

public purpose. Id. ¶¶ 2, 7. Mr. Coleman brings a three-count

Complaint against the District. Count One seeks damages under 42

U.S.C. § 1983. See id. ¶¶ 70–78. Count Two seeks “just

compensation” under the Fifth Amendment. See id. ¶¶ 79–86. Count

Three seeks a declaratory judgment that the provisions of D.C.

law “causing the sale of a home and all of its equity to a third

party are null and void as a violation of the Fifth Amendment.”

Id. ¶¶ 87–90.

  On October 18, 2013, the District moved to dismiss. See Def.’s

Mot. to Dismiss (“Mot.”), ECF No. 5. Mr. Coleman filed his

opposition on November 22, 2013. See Pl.’s Opp. to Mot. to

Dismiss (“Opp.”), ECF No. 8. The District filed its reply in

further support of its motion on December 6, 2013. See Def.’s

Reply in Supp. of Mot. to Dismiss (“Reply”), ECF No. 10. The


                                9
Court held a hearing on the motion to dismiss on September 26,

2014. The motion is now ripe for the Court’s decision.

II.    Standard of Review

  A.     Rule 12(b)(1)

  A federal district court may only hear a claim over which it

has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction. On a motion to dismiss for lack of subject matter

jurisdiction, the plaintiff bears the burden of establishing

that the Court has jurisdiction. Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). In evaluating the motion, the Court

must accept all of the factual allegations in the complaint as

true and give the plaintiff the benefit of all inferences that

can be drawn from the facts alleged. See Thomas v. Principi, 394

F.3d 970, 972 (D.C. Cir. 2005). However, the Court is “not

required . . . to accept inferences unsupported by the facts

alleged or legal conclusions that are cast as factual

allegations.” Cartwright Int’l Van Lines, Inc. v. Doan, 525 F.

Supp. 2d 187, 193 (D.D.C. 2007) (quotation marks omitted).

  B.     Rule 12(b)(6)

  A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that


                               10
the pleader is entitled to relief, in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quotation marks and alteration omitted). While detailed

factual allegations are not necessary, a plaintiff must plead

enough facts “to raise a right to relief above the speculative

level.” Id.

  When ruling on a Rule 12(b)(6) motion, the court may consider

“the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court must not

accept inferences that are “unsupported by the facts set out in

the complaint.” Id. “Nor must the court accept legal conclusions

cast in the form of factual allegations.” Id. “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)

III. Analysis

  A.   The Court Has Jurisdiction Over Mr. Coleman’s Claims.




                               11
  The District argues that the Court lacks jurisdiction to hear

Mr. Coleman’s claims for four distinct reasons: (1) Counts One

and Three of the Complaint are barred by the federal and D.C.

Tax Injunction Acts, 28 U.S.C. § 1341 and D.C. Code § 47-3307,

as well as the related principle of comity; (2) Count Two of the

Complaint is not ripe for resolution; (3) the case is precluded

by the Rooker-Feldman doctrine; and (4) the case is barred by

the doctrine of res judicata.

     1.   The Tax Injunction Act

  The District’s first jurisdictional argument is that Counts

One and Three of Mr. Coleman’s Complaint—which seek damages for

the loss of surplus equity and a declaratory judgment that the

relevant provisions of the D.C. Code are unconstitutional—

challenge the legality of the District of Columbia’s system for

collecting property taxes in violation of the Tax Injunction

Act, 28 U.S.C. § 1341, and the related principle of comity, as

well as the D.C. Tax Injunction Act, D.C. Code § 47-3307. Mr.

Coleman claims that Counts One and Three do not challenge the

District’s collection of property taxes at all, but instead are

addressed at the separate taking of a homeowner’s surplus

equity. See Opp. at 26–29.

  The Tax Injunction Act declares that “[t]he district courts

shall not enjoin, suspend or restrain the assessment, levy or

collection of any tax under State law where a plain, speedy and


                                12
efficient remedy may be had in the courts of such State.” 28

U.S.C. § 1341.2 The Act has been interpreted to bar not only

injunctions, but also actions seeking declaratory judgments

regarding the validity of tax collection. See Great Lakes Dredge

& Dock Co. v. Huffman, 319 U.S. 293, 299 (1943). Moreover,

“[a]lthough the Supreme Court has not decided whether the Act

itself covers damages suits under 42 U.S.C. § 1983, the Supreme

Court has found ‘that taxpayers are barred by the principle of

comity from asserting § 1983 actions against the validity of

state tax systems in federal courts.’” Dist. Lock & Hardware,

Inc. v. District of Columbia, 808 F. Supp. 2d 36, 39 (D.D.C.

2011) (quoting Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100, 116 (1981) (quotation marks, citations, and

alterations omitted).

  The Act is “first and foremost a vehicle to limit drastically

federal district court jurisdiction to interfere with so

important a local concern as the collection of taxes.” Rosewell

v. LaSalle Nat’l Bank, 450 U.S. 503, 522 (1981). This is not to

say that the Act bars any lawsuit that relates to tax

collection, however. As the Supreme Court recently held, the Act




																																																								
2
     Similarly, the D.C. Tax Injunction Act provides: “No suit shall
be filed to enjoin the assessment or collection by the District
of Columbia or any of its officers, agents, or employees of any
tax.” D.C. Code § 47-3307.

                                 13
reflects “two closely related, state-revenue-protective

objectives”:

     (1) to eliminate disparities between taxpayers who
     could seek injunctive relief in federal court—usually
     out-of-state corporations asserting diversity
     jurisdiction—and taxpayers with recourse only to state
     courts, which generally required taxpayers to pay
     first and litigate later; and

     (2) to stop taxpayers, with the aid of a federal
     injunction, from withholding large sums, thereby
     disrupting state government finances.”

Hibbs v. Winn, 542 U.S. 88, 104 (2004).

  In Hibbs, the Supreme Court articulated the narrow scope of

claims that are subject to the Act, holding that it does not bar

claims that relate generally to “state tax administration”;

rather, the relief sought must disrupt “the collection of

revenue” by “operat[ing] to reduce the flow of state tax

revenue.” Id. at 105, 106. Upon reviewing the Act’s history, the

Supreme Court concluded that “Congress trained its attention on

taxpayers who sought to avoid paying their tax bill by pursuing

a challenge route other than the one specified by the taxing

authority. Nowhere does the legislative history announce a

sweeping congressional direction to prevent federal-court

interference with all aspects of state tax administration.” Id.

at 104–05 (quotation marks omitted). “In sum, this Court has

interpreted and applied the [Tax Injunction Act] only in cases

Congress wrote the Act to address, i.e., cases in which state



                               14
taxpayers seek federal-court orders enabling them to avoid

paying state taxes.” Id. at 107.

  Courts have consistently applied the language of Hibbs that

the Tax Injunction Act bars only claims “‘in which state

taxpayers seek federal-court orders enabling them to avoid

paying state taxes,’” BellSouth Telecomms. v. Farris, 542 F.3d

499, 501 (6th Cir. 2008) (quoting Hibbs, 542 U.S. at 107)

(emphasis in original), or, phrased slightly differently, that

the Act applies only “to a lawsuit when the relief granted by a

federal court will ‘operate to reduce the flow of state tax

revenue.’” Okla. ex rel. Okla. Tax Comm’n v. Int’l Reg. Plan,

Inc., 455 F.3d 1107, 1112 (10th Cir. 2006) (quoting Hibbs, 542

U.S. at 106) (emphasis added); see also Luessenhop v. Clinton

Cnty., 466 F.3d 259, 266 (2d Cir. 2006); May Trucking Co. v. Or.

Dep’t of Transp., 388 F.3d 1261, 1267 (9th Cir. 2004).

  Mr. Coleman does not seek a court order nullifying his

property tax obligation. Indeed, the District conceded at oral

argument that a ruling in Mr. Coleman’s favor would not allow

him to avoid paying any tax. Mr. Coleman further notes that the

D.C. Code provision at issue defines “tax” narrowly, to

encompass “unpaid real property tax . . . including penalties,

interest, and costs.” D.C. Code § 47-1330(2). Mr. Coleman

concedes that those amounts were due; he seeks only the surplus

equity that remains after those amounts are paid. Accordingly,


                               15
if Mr. Coleman won this lawsuit, no “tax” would be removed from

the District’s coffers. For that reason, the Tax Injunction Act

does not bar his claims.

  The District argues that Mr. Coleman’s claims must nonetheless

be dismissed because their success would frustrate the

“collection” of taxes by holding the process by which the

District collects property taxes unconstitutional. See Mot. at

10–11. Under the District’s view, the law’s treatment of a

homeowner’s surplus equity is inextricably intertwined with the

process by which a tax lien is sold to a third party and a

former homeowner’s right to redeem the property itself is

foreclosed upon. In essence, forfeiting the equity is an extra

incentive for the payment of taxes.

  Courts have rejected the argument that the Tax Injunction Act

bars challenges to such independent incentives. Indeed, the

Supreme Court in Hibbs discussed such a case, Judge Friendly’s

decision in Wells v. Malloy, 510 F.2d 74 (2d Cir. 1975). See

Hibbs, 542 U.S. at 109. In Wells, the plaintiff had failed to

pay a state motor-vehicle tax and, as a consequence, the state

suspended his driver’s license. See 510 F.2d at 76. The

plaintiff brought a suit contesting the constitutionality of

that action, but “did not dispute that the tax was due and

owing.” Id. Judge Friendly held that the plaintiff “[c]learly .

. . is not seeking to restrain the ‘assessment’ or ‘levy’ of a


                               16
tax under state law.” Id. at 77. The state argued that the

plaintiff sought to restrain the “collection” of taxes, but

Judge Friendly rejected a reading of that word “to include

anything that a state has determined to be a likely method of

securing payment.” Id. In using the word “collection”:

        Congress   was  referring   to   methods  similar   to
        assessment and levy, e.g., distress or execution, that
        would produce money or other property directly, rather
        than indirectly through a more general use of coercive
        power. Congress was thinking of cases where taxpayers
        were repeatedly using the federal courts to raise
        questions of state or federal law going to the
        validity of the particular taxes imposed upon them—not
        to a case where a taxpayer contended that an unusual
        sanction for non-payment of a tax admittedly due
        violated his constitutional rights, an issue which,
        once determined, would be determined for him and all
        others.

Id. (citations omitted). The plaintiff in Wells was thus not

barred by the Tax Injunction Act. See id. For similar reasons,

Mr. Coleman’s challenge to the District’s taking of the surplus

equity in his home, above and beyond the amounts the District

has defined as the “tax,” is not barred by the Tax Injunction

Act.3


																																																								
3
     The Court need not resolve the dispute over whether a challenge
to the adequacy of a foreclosure notice in the context of a tax
sale is barred by the Tax Injunction Act. Compare Luessenhop,
466 F.3d at 260–61 (Second Circuit holding that the “collection”
of taxes was not at issue where “[n]one of the plaintiffs
dispute[d] the authority of the governmental body to collect the
taxes due . . . . Neither d[id] they contest the assessments of
their property, or the amount of taxes claimed due”), and Burns
v. Conley, 526 F. Supp. 2d 235, 241 (D.R.I. 2007) (plaintiffs’
challenge to the adequacy of notice of a pending tax sale was

                                  17
      The District finds superficial support for its position in a

handful of decisions that concluded that challenges to the

legality of a tax sale itself, which sought to recover the taxes

that were paid, are barred by the Tax Injunction Act. These

decisions are easily distinguished. Most prominently, the

District cites Wright v. Pappas, 256 F.3d 635 (7th Cir. 2001),

where a purchaser of tax liens brought suit alleging that the

county from which he purchased the liens had misrepresented the

values of the relevant properties for racially discriminatory

reasons. See id. at 636. The plaintiff sought a “refund [of] the

price he paid for the certificates.” Id. The Seventh Circuit

held that “[a] lien sale is a mode of tax collection; and so an

action to enjoin it, or declare it illegal, or rescind it, or

perhaps even just obtain damages on the ground of its

illegality, would be barred.” Id. at 637. The plaintiff was

barred by the Tax Injunction Act because he “challenge[d] the

mode of collection,” and he sought a refund of the purchase


																																																																																																																																																																																			
not barred by the Tax Injunction Act where the plaintiffs “do
not challenge the power of the town to levy sewer assessments
and to conduct tax sales; they would have paid the taxes had
they received notice”), with Dist. Lock & Hardware, 808 F. Supp.
2d at 41–42 (challenge to adequacy of notice or a tax sale was
barred by the Act because it sought “to set aside of undo the
sale” and was thus a challenge to the “collection” of taxes). A
claim regarding the adequacy of notice of a tax sale challenges
an action that, arguably, is part of the tax sale itself. See
Dist. Lock & Hardware, 808 F. Supp. 2d at 41–42. Mr. Coleman
challenges nothing in the tax sale; rather, he argues that the
independent statutory taking of his surplus equity was unlawful.	

                                                                                      18
price he paid, which was the functional equivalent of the tax

payment. See id.

  Wright does not affect Mr. Coleman’s claims because Mr.

Coleman “does not challenge the District’s right to collect the

tax owed; the amount of the tax, interest, expenses or penalties

owed; or the right of the District’s taxing authorities to

foreclose on his property to recover that debt.” Opp. at 27. All

he challenges is “the taking of property that was indisputably

not owed for taxes . . . the amount in excess of the tax owed.”

Id. Unlike the plaintiff in Wright, then, Mr. Coleman neither

seeks to recover any tax that was paid (he concedes its

validity), nor to “enjoin,” “declare . . . illegal,” “rescind,”

or “obtain damages on the grounds of . . . illegality” of the

tax sale. Wright, 256 F.3d at 637.4



																																																								
4
     For similar reasons, other cases cited by the District are
distinct. See Schulz v. Williamson, 145 F. App’x 704, 704 (2d
Cir. 2005) (Tax Injunction Act barred action where the
plaintiffs “sought to enjoin defendants from enforcing state tax
laws by adding their names to a list of delinquent taxpayers or
foreclosing on their real property”); Miller v. District of
Columbia, No. 06-1935, 2007 WL 1748890, at *3–4 (D.D.C. June 18,
2007) (concluding that the Tax Injunction Act deprives the Court
of “subject-matter jurisdiction over plaintiffs’ challenge to
the sale of his properties at a tax auction and over his related
request that the tax sale be ‘set aside’”); Dixon v. Oisten, No.
02-CV-72379, 2002 WL 31008840, at *3–4 (E.D. Mich. Aug. 20,
2002) (Tax Injunction Act barred an action when the plaintiff
sought “to either redeem his property or properties or to set
aside the tax sale”), aff’d, 62 F. App’x 105 (6th Cir. 2003);
United States v. Boyce, 153 F. Supp. 2d 1194, 1196 (S.D. Cal.
2001) (finding that a federal district court “is not the proper

                               19
             2.            Ripeness
	
      The District’s second jurisdictional argument maintains that

Count II of plaintiff’s Complaint, which seeks an award of just

compensation under the Takings Clause, “is premature” under the

ripeness requirement inherent in all Takings Clause claims. See

Mot. at 12. For a Takings Clause claim to be ripe for judicial

resolution, the plaintiff must show that: (1) “the government

entity charged with implementing the regulations has reached a

final decision”; and (2) the plaintiff has sought “compensation

through the procedures the State has provided,” which must be

“reasonable, certain and adequate . . . at the time of the

taking.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 186, 194 (1985); see also 13B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure §

3532.1.1 (3d ed. 2014) (“There must be a final decision to

‘take,’ and the plaintiff must show that there is no other

remedy to provide adequate compensation.”). The District does

not contest that there has been a final decision, and argues

only that Mr. Coleman has not pursued available state remedies.

      The requirement that a plaintiff exhaust state compensation

remedies exists because “[t]he Fifth Amendment does not

proscribe the taking of property; it proscribes taking without


																																																																																																																																																																																			
[forum] for any challenge . . . regarding the validity of the
[State Franchise Tax Board’s] tax liens”).

                                                                                      20
just compensation.” Williamson, 473 U.S. at 194. Accordingly,

“the State’s action is not complete in the sense of causing a

constitutional injury unless or until the State fails to provide

an adequate postdeprivation remedy for the property loss.” Id.

at 195 (quotation marks omitted). The Supreme Court therefore

found a takings claim unripe where state statutory law permitted

“a property owner [to] bring an inverse condemnation action to

obtain just compensation for an alleged taking of property.” Id.

at 196.

  The analysis looks to potential “remedies under state

substantive law.” 13B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3532.1 n.43 (3d ed. 2014)

(emphasis added). In the absence of any such remedy, a plaintiff

may immediately bring his claim in federal court. See, e.g.,

Arnett v. Myers, 281 F.3d 552, 564 (6th Cir. 2002) (takings

claim was ripe where “[t]his court’s review of Tennessee law has

revealed no reasonable, certain, and adequate provision for

obtaining just compensation that was available . . . at the time

of the alleged takings in this case”); Clajon Prod. Corp. v.

Petera, 70 F.3d 1566, 1575 (10th Cir. 1995) (where a state

inverse-condemnation action was available only against

government entities with “the power to condemn land,” and the

challenged government entity “lacks the power of eminent domain”

meaning that it was “not subject to Wyoming’s inverse


                               21
condemnation procedure, Plaintiffs’ takings claim is ripe for

review”); Hoehne v. Cnty. of San Benito, 870 F.2d 529, 533 (9th

Cir. 1989) (in an action alleging a taking in connection with

the denial of a subdivision application, claim was ripe because

at the time of the denial “California law prohibited actions

seeking just compensation as a remedy for regulatory takings”).

  A plaintiff cannot ignore potential sources of state remedies,

however. Where, for example, a state constitution contains its

own takings clause, courts have required plaintiffs to bring a

claim under that provision first, even if the availability of

just compensation has not been clearly established. See, e.g.,

Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93

(1st Cir. 2003) (“The Rhode Island Constitution prohibits the

taking of private property for public use without just

compensation and Rhode Island state courts have long allowed

recovery through suits for inverse condemnation.”); Southview

Assocs., Ltd. v. Bongartz, 980 F.2d 84, 100 (2d Cir. 1992)

(holding that the Vermont Constitution “recognizes a cause of

action for a taking generally, even if it has yet to decide

whether recovery can be had for a regulatory taking,” meaning

that the plaintiff must first pursue such a claim); Austin v.

City & Cnty. of Honolulu, 840 F.2d 678, 681 (9th Cir. 1988)

(same under the Hawaii Constitution). Similarly, where a state’s

supreme court has indicated that inverse-condemnation is


                               22
available as a separate substantive claim, plaintiffs must first

bring such a claim even if its contours are unclear. See, e.g.,

Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 513 (1st

Cir. 1987) (court decisions had indicated that the court “will

entertain an inverse condemnation action for damages when it

believes that property is ‘taken’ by unconstitutionally

excessive governmental regulations,” although damages had never

been awarded under the action); Littlefield v. City of Afton,

785 F.2d 596, 609 (8th Cir. 1986) (court had indicated that an

inverse-condemnation action existed, although it was limited “to

cases where an injunction would not restore plaintiffs to their

original status”).

  The District argues that “[l]andowners can bring an inverse

condemnation action in the District of Columbia” and that Mr.

Coleman’s failure to do so renders Count II of his Complaint

unripe. See Mot. at 12. Mr. Coleman correctly notes that the

sole citation provided by the District in support of its

argument that such a substantive claim exists is a reference to

the term “inverse condemnation” in a D.C. Court of Appeals

opinion which addressed only a federal Takings Clause claim

brought pursuant to 42 U.S.C. § 1983. See Potomac Dev. Corp. v.

District of Columbia, 28 A.3d 531, 550–51 & n.9 (D.C. 2011). In

that decision, the D.C. Court of Appeals emphasized that

“District law is not the basis of the cause of action pled in


                               23
the complaint, which invokes only § 1983.” Id. at 550. The Court

noted that “earlier inverse condemnation cases applied Fifth

Amendment principles in deciding whether a taking has occurred

and what compensation is just,” and the two cases cited by the

D.C. Court of Appeals appear also to have relied on the Fifth

Amendment. See Mamo v. District of Columbia, 934 A.2d 376, 378,

384–85 (D.C. 2007); D.C. Redev. Land Agency v. Dowdey, 618 A.2d

153, 164 (D.C. 1992). The D.C. Court of Appeals, therefore, has

provided no basis to infer the existence of an independent

inverse-condemnation action under D.C. law.

  The possibility that a court could fashion such an action is

not sufficient to render Mr. Coleman’s claim unripe. See

Culebras, 813 F.2d at 513 (state supreme court had indicated

that it would entertain such an action under certain

circumstances); Littlefield, 785 F.2d at 609 (same). Nor has the

District identified any other potential source of a remedy. In

fact, it conceded at oral argument that it presented no other

legal authority. The Court finds no basis to infer the existence

of such a remedy, either. The District does not have a

constitution—a common source for a state substantive remedy. See

Pascoag, 337 F.3d at 93; Southview, 980 F.2d at 100; Austin, 840

F.2d at 681. Further, the statute at issue in this case

expressly provides for the taking of plaintiff’s surplus equity

and contains no procedure for the recovery of that surplus.


                               24
Accordingly, because there is no “reasonable, certain, and

adequate” state remedy, Williamson, 473 U.S. at 194, Mr.

Coleman’s claim is ripe for resolution.5

      3.   Rooker-Feldman
	
    The District’s third jurisdictional argument is that Mr.

Coleman’s case constitutes an unacceptable request that this

Court “review a judicial decision of the D.C. Superior Court,

and . . . adjudicate claims that are a direct result of the 2010

Foreclosure Judgment.” Mot. at 13. Mr. Coleman counters that he

has no objection to the Foreclosure Judgment and does not seek

to overturn that judgment or recover title to his property;

rather, his objection is to the District’s independent taking of

his surplus equity. See Opp. at 36–39.

    This argument implicates the Rooker-Feldman doctrine, which

“‘prevents lower federal courts from hearing cases that amount

to the functional equivalent of an appeal from a state court.’”

Magritz v. Ozaukee Cnty., 894 F. Supp. 2d 34, 38 (D.D.C. 2012)
																																																								
5
     Although the District appeared to argue in its pleadings that
Mr. Coleman must litigate his federal claim in the Superior
Court before that claim may become ripe for review in federal
court, Reply at 8–10, the District conceded during oral argument
that this is not the case. This concession was appropriate, as
it is hornbook law that plaintiffs need only resort to existing
“remedies under state substantive law” and that their federal
claims “need not be presented to state courts.” 13B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure §
3532.1 n.43 (3d ed. 2014); see also, e.g., Front Royal & Warren
Cnty. Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275,
283 (4th Cir. 1998); Dodd v. Hood River Cnty., 59 F.3d 852, 860–
61 (9th Cir. 1995).

                                 25
(quoting Gray v. Poole, 275 F.3d 1113, 1119 (D.C. Cir. 2002)).

The Rooker-Feldman doctrine “is based on the jurisdictional

grant codified in 28 U.S.C. § 1257, which authorizes only the

Supreme Court to exercise appellate jurisdiction over state

court judgments.” Liebman v. Deutsche Bank Nat’l Trust Co., No.

13-1392, 2014 WL 526712, at *3 (D.D.C. Feb. 11, 2014).

  The doctrine began in a 1923 case in which a plaintiff sought

“to have a judgment of a circuit court in Indiana, which was

affirmed by the Supreme Court of the state, declared null and

void, and to obtain other relief dependent on that outcome.”

Rooker v. Fidelity Trust Co., 263 U.S. 413, 414 (1923). The

Supreme Court found that the plaintiffs’ request was “plainly

not within the District Court’s jurisdiction as defined by

Congress.” Id. at 415.

  The Supreme Court revisited the doctrine in 1983 when two

individuals challenged the D.C. Court of Appeals’ denial of

their bar applications pursuant to a rule that all applicants

must prove that they graduated from an approved law school. See

D.C. Court of Appeals v. Feldman, 460 U.S. 462, 463–65 (1983).

The Supreme Court held that the Court of Appeals’ consideration

and denial of the plaintiffs’ applications was “judicial in

nature” and thus could not be reviewed in the district court.

See id. at 479–82. The Court held that the district court also

lacked jurisdiction over plaintiffs’ challenges to the Court of


                               26
Appeals’ denial of their “petitions for waiver” of the rule,

which relied on an alleged “former policy of granting waivers,”

because those decisions were “inextricably intertwined with the

District of Columbia Court of Appeals’ decisions, in judicial

proceedings, to deny the respondents’ petitions.” Id. at 486–87.

The Supreme Court went on to hold, however, that “[t]o the

extent that [plaintiffs] mounted a general challenge to the

constitutionality of [the Court of Appeals’ rule requiring that

applicants prove they had graduated from an approved law school]

the District Court did have subject matter jurisdiction over

their complaints.” Id. at 482–83.

  In 2005, the Supreme Court clarified that Rooker-Feldman is a

limited doctrine that “is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-

court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of

those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). Rooker-Feldman does not “stop a

district court from exercising subject-matter jurisdiction

simply because a party attempts to litigate in federal court a

matter previously litigated in state court,” even if “a federal

plaintiff presents some independent claim . . . that denies a

legal conclusion that a state court has reached in a case to


                               27
which he was a party.” Id. at 293 (quotation marks and

alteration omitted).

  The use in Feldman of the phrase “inextricably intertwined”

had created some definitional problems, but Exxon clarified that

issue as well. The phrase was intended to mean only “that a

district-court challenge to [a state-court decision] would be

barred even if the challenge was based on a ground not raised in

the [state-court] proceeding.” Campbell v. City of Spencer, 682

F.3d 1278, 1282 (10th Cir. 2012). Accordingly, “[w]hen the

state-court judgment is not itself at issue, the Rooker-Feldman

doctrine does not prohibit federal suits regarding the same

subject matter, or even the same claims, as those presented in

the state-court action,” nor does it “bar an action just because

it seeks relief inconsistent with, or even ameliorative of, a

state-court judgment.” Campbell, 682 F.3d at 1281 (quotation

marks and alteration omitted). “The essential point is that

barred claims are those complaining of injuries caused by state-

court judgments. In other words, an element of the claim must be

that the state court wrongfully entered its judgment.” Id. at

1283 (quotation marks omitted).

  “In assessing the applicability of the Rooker-Feldman doctrine

. . . the fundamental and appropriate question to ask is whether

the injury alleged by the federal plaintiff resulted from the

state court judgment or is distinct from that judgment.” Long v.


                                  28
Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir. 1999)

(quotation marks omitted). In conducting this inquiry, “federal

courts cannot simply compare the issues involved in the state-

court proceeding to those raised in the federal-court

plaintiff’s complaint, but instead must pay close attention to

the relief sought by the federal-court plaintiff.” Exec. Arts

Studio v. City of Grand Rapids, 391 F.3d 783, 793–94 (6th Cir.

2004) (quotation marks omitted; emphases in original).

  Here, the dispute centers on how Mr. Coleman’s claims are

characterized. To the District, he attacks directly the 2010

Foreclosure Judgment, making this a clear attempt to obtain

review of a state-court judgment. Even though Mr. Coleman’s

Takings Clause argument was not addressed in the 2010

proceedings, if he sought to have that judgment overturned in

this Court, he would be barred by Rooker-Feldman. Indeed, the

District rightly notes that direct attacks on state-court

foreclosure judgments are barred by Rooker-Feldman. See, e.g.,

Magritz, 894 F. Supp. 2d at 38–39 (plaintiff’s challenge to the

tax sale of his property was barred by Rooker-Feldman because he

directly “question[ed] the validity of the underlying 2001

Judgment of Foreclosure”).

  The plaintiff contends that his claim is more nuanced than the

District presents. “Mr. Coleman does not seek review or

rejection in this case of the Superior Court judgment entered in


                               29
favor of Embassy Tax Services and against him,” he “does not

contend that the Superior Court committed error and does not

seek relief from its judgment,” “Mr. Coleman seeks damages and

declaratory relief due to the District’s unconstitutional

statute and taking.” Opp. at 37. Thus, Mr. Coleman challenges

the District’s statutory scheme insofar as it provides for the

taking, not of a foreclosed property, but of the entirety of the

equity in that property, without recourse for a taxpayer to

recover the amount of that equity less any taxes, penalties,

costs, and interest owed.

  The District relies heavily on a 1993 decision of the Seventh

Circuit, which held that Rooker-Feldman barred federal-court

jurisdiction over a takings claim that a local government had

unconstitutionally retained the entire proceeds of a tax sale.

See Ritter v. Ross, 992 F.2d 750, 751–52, 754–55 (7th Cir.

1993). In that case, the plaintiffs “admit[ted] that but for the

tax lien foreclosure judgment . . . they would have no

complaint: they would still have their land and would have

suffered no injury.” Id. at 754. “The state court proceedings,

as the Plaintiffs themselves state, ‘are the subject of this

case.’” Id. The Seventh Circuit thus concluded that “their

claims . . . are inextricably intertwined with the merits of

that proceeding.” Id. at 755 (emphasis added). As Mr. Coleman

noted at oral argument, Ritter relied on the “inextricably


                               30
intertwined” language, which was narrowed significantly in 2005

by the Supreme Court’s Exxon decision.

  More instructive is the Ninth Circuit’s recent decision in

Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013), which

permitted plaintiffs who had been convicted of violating an

ordinance outlawing “camping” in public places to bring a

federal constitutional claim for retrospective damages regarding

the alleged unconstitutionality of that ordinance. See 709 F.3d

at 896–97. Although the plaintiffs sought remedies for the

allegedly unconstitutional enforcement of the ordinance against

them in the form of expungement of their state-court convictions

and damages related to “criminal fines” and “costs of

incarceration” arising out of those convictions, the Ninth

Circuit emphasized that “even if a plaintiff seeks relief from a

state court judgment, such a suit is a forbidden de facto appeal

only if the plaintiff also alleges a legal error by the state

court.” Id. at 894, 897. “Although Plaintiffs sought relief

designed to remedy injuries suffered from a state court

judgment, they did not allege before the court that the state

court committed legal error, nor did they seek relief from the

state court judgment itself”; instead, they “assert as a legal

wrong an allegedly illegal act by an adverse party—the City’s

allegedly unconstitutional enforcement of the Ordinances.” 709

F.3d at 898 (quotation marks and alteration omitted).


                               31
    Mr. Coleman’s claim for compensation for the taking of his

surplus equity in the property survives Rooker-Feldman because

he does not challenge the Foreclosure Judgment, but the

District’s allegedly unconstitutional enforcement of the statute

providing for a taking of his surplus equity. In the language of

Bell, Mr. Coleman’s claim is not “a direct challenge to a state

court’s factual or legal conclusion.” Id. at 897. Indeed, Mr.

Coleman alleges no legal error by the Superior Court. As

discussed previously, he accepts the Foreclosure Judgment, the

loss of his real property, and the satisfaction of his “tax”

debts. See supra Part III.A.1. Just as the Bell plaintiffs

sought damages that grew out of their state-court prosecution,

Mr. Coleman seeks damages that, while related in some sense to

the Foreclosure Judgment, are distinct from it.6

      4.   Res Judicata
	



																																																								
6
     The Court is not persuaded by the District’s reliance on the
Tenth Circuit’s decision in Campbell. In that case, a plaintiff
was barred by Rooker-Feldman from bringing a Takings Clause
claim to recover just compensation for the value of horses that
had been the subject of a state-court forfeiture proceeding. See
682 F.3d at 1279. The Tenth Circuit held that Rooker-Feldman
barred that claim because “the deprivation of property that was
allegedly without just compensation . . . was the deprivation
ordered by the state court.” Id. at 1284. The forfeiture was an
“act[] of the state court.” Id. at 1285. Here, by contrast, Mr.
Coleman does not challenge the deprivation ordered by the
Superior Court, he challenges the District’s independent
statutory taking of his surplus equity without avenue for
recovery.

                                 32
  The District’s final jurisdictional argument is that Mr.

Coleman’s claims are barred by the doctrine of res judicata

because they “could have been raised in an earlier action but

were not.” Mot. at 16. To determine whether res judicata

applies, the Court must look to the Full Faith and Credit Act,

which provides that judgments of the courts of any state,

territory, or possession “shall have the same full faith and

credit in every court within the United States and its

Territories and Possessions as they have by law or usage in the

courts of such State, Territory or Possession from which they

are taken.” 28 U.S.C. § 1738. This means that a state-court

judgment receives “‘the same respect that it would receive in

the courts of the rendering State.’” Herrion v. Children’s Hosp.

Nat’l Med. Ctr., 448 F. App’x 71, 72 (D.C. Cir. 2011) (quoting

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373

(1996)). The parties agree that, under D.C. law, the Court must

determine whether res judicata applies by looking to: “(1)

whether the claim was adjudicated finally in the first action;

(2) whether the present claim is the same as the claim which was

raised or which might have been raised in the prior proceeding;

and (3) whether the party against whom the plea is asserted was

a party or in privity with a party in the prior case.” Calomiris

v. Calomiris, 3 A.3d 1186, 1190 (D.C. 2010) (quotation marks




                               33
omitted). It is undisputed that Mr. Coleman’s claims were not

actually litigated in a prior proceeding.

  The District argues that Mr. Coleman’s claims are nonetheless

barred by res judicata because the Superior Court “rendered a

final judgment on the merits relating to the tax sale

purchaser’s Motion for Entry of Default Judgment” and Mr.

Coleman could have raised his Takings Clause claims in that

action. See Mot. at 17–19. Mr. Coleman responds that he could

not have asserted his claims against the plaintiff in the

Superior Court case, the purchaser of the tax lien, and the

District was a co-defendant, against whom he had no obligation

to raise a cross-claim. See Opp. at 31–32.

  In Superior Court, cross-claims are permissive:

     A pleading may state as a cross-claim any claim by 1
     party   against  a   co-party   arising out   of  the
     transaction or occurrence that is the subject matter
     either of the original action or of a counterclaim
     therein or relating to any property that is the
     subject matter of the original action. Such cross-
     claim may include a claim that the party against whom
     it is asserted is or may be liable to the cross-
     claimant for all or part of a claim asserted in the
     action against the cross-claimant.

Super. Ct. R. Civ. P. 13(g). The effect of the nearly identical

federal rule is that “a party in a civil action is not precluded

from litigating a claim simply because it had an opportunity to

raise the claim as a cross-claim in a prior suit to which it was

a party.” Corestates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187,



                               34
199 (3d Cir. 1999); see also RX Data Corp. v. Dep’t of Soc.

Servs., 684 F.2d 192, 196 (2d Cir. 1982); Hall v. Gen. Motors

Corp., 647 F.2d 175, 184 (D.C. Cir. 1980) (R.B. Ginsburg, J.)

(noting “the general rule that cross-claims are permissive, not

compulsory”). The District conceded at oral argument that res

judicata generally would not bar a party from raising in a

subsequent action a claim that would have been a cross-claim in

a prior action.

  The District responds that although it and Mr. Coleman were

co-defendants, their interests were so adverse that Mr. Coleman

should have raised his Takings Clause claims against the

District in that proceeding. In support of this argument, the

District cites a handful of clearly distinct cases. Most

prominently, the District cited Kolb v. Scherer Brothers

Financial Services Co., 6 F.3d 542 (8th Cir. 1993), which

treated co-defendants—all of whom held mechanic’s liens on a

property—as adverse in an action brought by another lienholder.

The Eighth Circuit noted that “it would be pure fiction to

conclude that no adversity in fact exists between the parties

merely because they are all designated as defendants.” Id. at

545. Under Minnesota law, each defendant “makes the action his

or hers, for the purpose of enforcing his or her lien” and “any

lienholder entitled to relief may pursue the foreclosure to its

conclusion regardless of whether or not the nominal plaintiff


                               35
presents a viable lien claim.” Id. (alterations omitted). The

Eighth Circuit went on to note that “[a]ny party who files an

answer in a mechanic’s lien action, though nominally a

defendant, may actually function as a plaintiff with regard to

other named defendants.” Id. The District also cited Eyde v.

Charter Township of Meridian, 324 N.W.2d 775, 779 (Mich. Ct.

App. 1982), in which a plaintiff who had been a losing co-

defendant with a town in an action by town residents seeking to

force a referendum on the town’s re-zoning of the plaintiff’s

property was barred by res judicata in a subsequent suit against

the town seeking to obtain the re-zoning and enjoin the

referendum because the subsequent suit raised arguments “to

defeat the action for a referendum” that could have been raised

in the prior case and “[f]or purposes of [that] defense, the

Township and its residents were the same party.”7

  Mr. Coleman and the District were not adverse in the sense

described in Kolb or Eyde. Though the District’s sale of a tax

lien on Mr. Coleman’s property rendered it adverse to Mr.

Coleman in a colloquial sense, the District’s presence as a
																																																								
7
     The other cases cited by the District recited the general rule
that co-parties may be considered adverse in certain situations,
but either held that it did not apply, Exec. Arts, 391 F.3d at
795 (res judicata did not apply because “the City and Executive
Arts did not have any controversy between themselves when the
first decision was rendered”), or described factually distinct
scenarios. See, e.g., Lesher v. Lavrich, 784 F.2d 193, 194–95
(6th Cir. 1986) (claim itself had been actually litigated in a
prior proceeding).	

                                36
defendant in the Superior Court case was largely pro forma. The

proceeding sought to determine whether Embassy could foreclose

Mr. Coleman’s right of redemption, and the District had no

property right to enforce against Mr. Coleman. This was far from

the Kolb parties, who all had competing property interests and,

pursuant to state law, could “function as a plaintiff with

regard to the other named defendants.” 6 F.3d at 545. Nor were

the District and Embassy “the same party” for the purposes of

any defense that Mr. Coleman may have raised in the Superior

Court action. See Eyde, 324 N.W.2d at 795. Just because Mr.

Coleman and the District did not have identical interests does

not make them sufficiently adverse to trigger a compulsory

counterclaim. Accordingly, Mr. Coleman was not required to raise

his Takings Clause claims against the District and is not barred

by res judicata from doing so now.

  B.   Mr. Coleman Has Stated a Claim for a Violation of the
       Takings Clause.

  In addition to its jurisdictional arguments, the District

argues that Mr. Coleman fails to state a claim for a violation

of the Takings Clause. Plaintiff’s theory is that the District

has effected an unconstitutional taking by precluding him

entirely from obtaining the surplus equity in his home that

remains after subtracting the taxes, penalties, costs, and

interest he owed. Mr. Coleman’s argument implicates a series of



                               37
Supreme Court decisions applying the Takings Clause to tax

sales.

  The story begins in 1881. That year, the Supreme Court had

occasion to interpret a federal statute that permitted the

federal government to engage in tax sales to recover delinquent

tax debts. See United States v. Taylor, 104 U.S. 216, 218

(1881). The Court interpreted the statute to mean that the

former owner “would be entitled to the surplus money” after the

tax sale. See id. This statutory interpretation became relevant

three years later in United States v. Lawton, 110 U.S. 146

(1884). In that case, an heir to an individual whose property

was sold under the same statute sought “surplus proceeds of the

sale” and was denied. Id. at 149. In light of the fact that the

statute required that the surplus be provided to that

individual, the Supreme Court stated that “[t]o withhold the

surplus from the owner would be to violate the fifth amendment

to the constitution, and deprive him of his property without due

process of law or take his property for public use without just

compensation.” Id. at 150.

  In 1956, the Supreme Court revisited the issue in Nelson v.

City of New York, 352 U.S. 103 (1956). In that case, the City of

New York had utilized a tax-sale procedure. See id. at 105–06.

The City retained one of the properties at issue and retained

the proceeds of the sale of the other property, which “far


                               38
exceed[ed] in value the amounts due.” Id. at 109. The plaintiffs

alleged that this constituted a violation of the Due Process

Clause and the Takings Clause. See id. As to the takings issue,

the Supreme Court examined Lawton, but noted that “the statute

involved in that case had been construed . . . to require that

the surplus be paid to the owner.” Id. at 110. The Nelson Court

stated:

     But we do not have here a statute which absolutely
     precludes an owner from obtaining the surplus proceeds
     of a judicial sale. In City of New York v. Chapman
     Docks Co., an owner filed a timely answer in a
     foreclosure proceeding, asserting his property had a
     value substantially exceeding the tax due. The
     Appellate Division construed [the tax-sale statute] to
     mean   that   upon   proof   [that  the   sale   value
     substantially exceeded the amount of taxes due] a
     separate sale should be directed so that the owner
     might receive the surplus.

Id. (citation omitted). The statute had therefore previously

been interpreted to provide an avenue for the recovery of

surplus equity. The Supreme Court went on:

     What the City of New York has done is to foreclose
     real property for charges four years delinquent and,
     in the absence of timely action to redeem or to
     recover[] any surplus, retain the property or the
     entire proceeds of its sale. We hold that nothing in
     the Federal Constitution prevents this where the
     record shows adequate steps were taken to notify the
     owners of the charges due and the foreclosure
     proceedings.

Id. (emphasis added).

  Mr. Coleman seizes on the first quote—“we do not have here a

statute which absolutely precludes an owner from obtaining the


                               39
surplus”—to argue that Nelson does not foreclose his claim. The

District focuses on the second—upholding the retention of “the

entire proceeds of its sale” due to “the absence of timely

action to redeem or to recover[] any surplus.” Id. Mr. Coleman’s

view of Nelson is correct. The Supreme Court clearly held open

the question presented by Mr. Coleman when it noted “[b]ut we do

not have here a statute which absolutely precludes an owner from

obtaining the surplus proceeds of a judicial sale.” Id. The

subsequent language cited by the District does not foreclose Mr.

Coleman’s claim because D.C. provides no action to recover any

surplus.8 Mr. Coleman’s claims, therefore, are not foreclosed by

Nelson.

    The story resumes in 1969. In Balthazar v. Mari Limited, 301

F. Supp. 103 (N.D. Ill. 1969), a three-judge panel of the U.S.

District Court for the Northern District of Illinois was

presented with a case in which the plaintiffs alleged a

violation of the Due Process and Takings Clauses when their

property was sold in a tax sale, pursuant to a statute which

held that “when an owner fails to redeem [his property] . . .

the purchaser [of the tax lien] may obtain the property for a
																																																								
8
     At oral argument, the District argued that Nelson overruled
Lawton. As the District conceded, nothing in the language of
Nelson indicates that Lawton was being overruled. In fact, the
Court in Nelson explained that its decision was consistent with
Lawton, noting that “the statute involved in that case had been
construed . . . to require that the surplus be paid to the
owner.” Id. at 110.

                                 40
fraction of its market value, thus gaining as a windfall all

surplus value which exceeds the land’s tax and interest

liabilities. Id. at 104–05. The only mention of the Takings

Clause in the district court’s decision was in a footnote, which

did not mention Nelson and stated: “Relying upon Supreme Court

condemnation cases, plaintiffs also maintain that they were

deprived of ‘just compensation’ for their property. These cases

are inapplicable. Rather than taking private property for a

public purpose, Illinois is here collecting taxes which are

admittedly overdue.” Id. at 105 n.6.

  The Supreme Court summarily affirmed the judgment of the

district court without elaboration. See Balthazar v. Mari Ltd.,

396 U.S. 114 (1969). The Court’s Opinion stated only: “The

motions to affirm are granted and the judgment is affirmed. Mr.

Justice Douglas is of the opinion that probable jurisdiction

should be noted.” Id. at 114. The District argues that this

forecloses Mr. Coleman’s claims because, it believes, the claim

presented in Balthazar was identical to Mr. Coleman’s. This

argument is tenuous from the outset because “[a]n unexplicated

summary affirmance settles the issue for the parties, and is not

to be read as a renunciation by this Court of doctrines

previously announced in our opinions after full argument.”

Mandel v. Bradley, 432 U.S. 173, 176 (1977) (quotation marks

omitted). A summary affirmance operates to “reject the specific


                               41
challenges presented in the statement of jurisdiction,”

“prevent[s] lower courts from coming to opposite conclusions on

the precise issues presented and necessarily decided by those

actions,” and “should not be understood as breaking new ground

but as applying principles established by prior decisions to the

particular facts involved.” Id. Accordingly, “[a] summary

disposition affirms only the judgment of the court below, and no

more may be read . . . than was essential to sustain that

judgment.” Anderson v. Celebrezze, 460 U.S. 780, 785, n.5

(1983).

  The jurisdictional statement filed with the Supreme Court by

the plaintiffs in Balthazar claimed that “[t]he court below[]

relied solely on a misapprehension of this Court’s opinion in

Nelson v. New York. In that case[,] this Court upheld a

statutory tax deed system because it met the requirements of due

process as it provided a means for excess value over the

delinquency to go to the benefit of the property owner.”

Jurisdictional Statement, Balthazar v. Mari Ltd., No. 593, 1969

WL 136737, at *2 (U.S. Sept. 15, 1969). The plaintiffs asserted

that they presented the question “[w]hether the Illinois ‘tax

deed’ statute is invalid as allowing confiscation of property

without an opportunity for just compensation,” especially in

light of the fact that “[t]here is no way under the Illinois




                               42
statute for an owner who is unable to redeem to obtain his

equity above his tax debt.” Id. at *2, 4.

  The District argues that this is evidence that the Supreme

Court viewed the Balthazar statute as no different from the

Nelson statute, but that is entirely at odds with Nelson itself,

which expressly reserved the question whether a tax sale law

with no avenue for recovery of the surplus would be

constitutional. As Mr. Coleman notes, it would be odd to “assume

that the Court silently determined the question that it

specifically reserved in Nelson.” Opp. at 24. Moreover,

Balthazar differs from Mr. Coleman’s case in a number of ways

that make its summary affirmance unhelpful. First, the remedies

sought in each case differ significantly. Mr. Coleman seeks just

compensation and a corresponding declaratory judgment. The

plaintiffs in Balthazar did not sue a defendant that could have

paid just compensation, Balthazar, 301 F. Supp. at 103, and they

appear to have sought an injunction because their case was

brought pursuant to a jurisdictional statute providing for a

three-judge panel to hear applications for injunctions

“‘restraining the enforcement, operation or execution of any

state statute.’” Opp. at 24–25 n.2 (quoting 28 U.S.C. § 2281)

(repealed 1976).

  Given the narrow interpretation accorded summary affirmances—

which Justices have recently described as “a rather slender reed


                               43
on which to rest future decisions,” Morse v. Republican Party of

Va., 517 U.S. 186, 203 n.21 (1996) (quotation marks omitted),

and as “carr[ying] little more weight than denials of

certiorari,” Hohn v. United States, 524 U.S. 236, 260 (1998)

(Scalia, J., dissenting)—these factual distinctions and the

Supreme Court’s express reservation of the relevant question in

Nelson counsel in favor of reading the summary affirmance in

Balthazar narrowly, to hold that the injunctive relief sought

against defendants who could not pay just compensation was not

warranted. This holding, even if undisturbed by subsequent

doctrinal developments, does not foreclose Mr. Coleman’s claim.

  Only a handful of post-Balthazar decisions have addressed a

federal Takings Clause claim regarding the taking of equity

without avenue for its recovery.9 Three decisions have denied

such claims on the grounds that Nelson foreclosed such a claim.

See Reinmiller v. Marion Cnty., No. CV-05-1926, 2006 WL 2987707,

at *3 (D. Or. Oct. 16, 2006); City of Auburn v. Mandarelli, 320

A.2d 22, 32 (Me. 1974); Ritter v. Ross, 558 N.W. 2d 909, 912




																																																								
9
     The District cited a recent decision of the Second Circuit, but
that decision did not address a Takings Clause claim at all; it
analyzed the due-process elements of Nelson and rejected a claim
that the retention of the surplus from a tax sale infringed on
“rights to due process and equal protection.” Miner v. Clinton
Cnty., 541 F.3d 464, 475 (2d Cir. 2008).


                                 44
(Wis. Ct. App. 1996).10 All three, however, recognized that such

a claim could be stated where a state statute or constitutional

provision granted an interest in the surplus equity. See

Reinmiller, 2006 WL 2987707, at *3; City of Auburn, 320 A.2d at

32; Ritter, 558 N.W. 2d at 912–13.11

     This Court draws two clear principles from the Supreme Court’s

decisions in Lawton and Nelson. Nelson makes clear that a

Takings Clause violation regarding the retention of equity will

not arise when a tax-sale statute provides an avenue for

recovery of the surplus equity. 352 U.S. at 109. Lawton makes

clear that a Takings Clause violation will arise when a tax-sale

statute grants a former owner an independent property interest


																																																								
10
      Courts have rejected Takings Clause challenges to tax sales
themselves, but these decisions do not shed light on the meaning
of Nelson because the courts were not presented with claims
regarding surplus equity. See, e.g., Speed v. Mills, 919 F.
Supp. 2d 122, 129 (D.D.C. 2013); Indus. Bank of Wash. v. Sheve,
307 F. Supp. 98, 99 (D.D.C. 1969).
11
  In addition, two Justices of the Supreme Court of New
Hampshire indicated their belief that the federal Takings Clause
and its New Hampshire counterpart require the ability to recover
surplus equity. See First N.H. Bank v. Town of Windham, 639 A.2d
1089, 1097–98 (N.H. 1994) (Horton, J., concurring) (“May the
taxing power include an arbitrary forfeiture, a movement of
property to the State without just compensation? I think not,
and instead would subscribe to an interpretation of the tax lien
enforcement provisions that would satisfy these constitutional
objections by limiting recovery to the obligation secured by the
lien.”). This position was ultimately adopted as an
interpretation of the New Hampshire Constitution. See Thomas
Tool Servs., Inc. v. Town of Croydon, 761 A.2d 439, 441 (N.H.
2000). Vermont interprets its constitution similarly. See Bogie
v. Town of Barnet, 270 A.2d 898, 900–01 (Vt. 1970).

                                  45
in the surplus equity and the government fails to return that

surplus. 110 U.S. at 149. The question Mr. Coleman’s case

presents is: What if the tax-sale statute does not provide a

right to the surplus and the statute provides no avenue for

recovery of any surplus? A property interest in equity could

conceivably be created by some other legal source. In that

circumstance, failure to provide an avenue for recovery of the

equity would appear to produce a result identical to Lawton:

Property to which an individual is legally entitled has been

taken without recourse.12 The issue, then, is whether Mr. Coleman

has a property interest in his equity and, if so, whether an

unconstitutional taking of that property has been alleged.

  The Fifth Amendment to the United States Constitution

provides, in relevant part, “nor shall private property be taken

for public use, without just compensation.” Inherent in the

Amendment, then, is that “property” must be at issue. “Because

the Constitution protects rather than creates property

interests, the existence of a property interest is determined by


																																																								
12
      One of the decisions to interpret Nelson grasped this point in
part when it held that where the government “retain[s] the
entire amount of the sale proceeds,” the Takings Clause comes
into play “only if the state constitution or tax statutes create
[a property interest in the surplus].” Ritter, 558 N.W. 2d at
910, 912. The Wisconsin Court of Appeals “consider[ed] whether
the [plaintiffs] had a property interest in the excess proceeds
of the foreclosure sale” and, upon concluding that they did not
under Wisconsin law, denied their Takings Clause claim. Id. at
912–13.

                                 46
reference to ‘existing rules or understandings that stem from an

independent source such as state law.’” Phillips v. Wash. Legal

Found., 524 U.S. 156, 164 (1998) (quoting Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972)). Lawton indicated that such an

interest may be created by a statute that requires the refunding

of surplus equity after a tax sale. See Lawton, 110 U.S. at 149.

Mr. Coleman contended that he has a protected property interest

in the equity in his home based on principles of D.C. law and

decisions of the D.C. Court of Appeals. See Opp. at 18 (citing

Lewis v. Lewis, 708 A.2d 249 (D.C. 1998); Gore v. Gore, 638 A.2d

672 (D.C. 1994)). Mr. Coleman similarly argued that he

establishes the remaining elements of a Takings Clause claim:

that his property was “taken”; that he was provided no “just

compensation”; and that the taking was not for a “public

purpose.” See id. at 18–22.

  The Court need not—and indeed cannot—address the viability of

these arguments because the District failed to respond to them.

Neither its motion nor its reply brief challenged whether Mr.

Coleman satisfied the elements of a Takings Clause claim.

Instead, the District declared that “[t]he District’s

substantive defense is based on the Supreme Court’s treatment of

tax sale foreclosure statutes in decisions that [the District

claims] are directly on point. There is no reason to defend a

tax sale foreclosure statute as a Fifth Amendment taking because


                               47
no court has found that to be the appropriate analysis.” Reply

at 15. “Because the District failed to address these [issues] in

its motion ‘and fail[ed] to respond to Plaintiff’s point[s] in

its Reply, the Court will deem [them] abandoned at least for

now.’” McGinnis v. District of Columbia, No. 13-1254, 2014 WL

4243542, at *15 (D.D.C. Aug. 28, 2014) (quoting Ashraf-Hassan v.

Embassy of France, 878 F. Supp. 2d 164, 173–74 (D.D.C. 2012));

see also Lewis v. United States, No. 90-991, 1990 WL 179930, at

*2 (D.D.C. Oct. 29, 1990); cf. Herbert v. Nat’l Acad. of

Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992) (noting the court’s

“dependence as an Article III court on the adversarial process

for sharpening the issues for decision” as a reason to decline

to consider arguments newly raised in a reply brief).

Accordingly, the Court must assume that Mr. Coleman established

the existence of an independent property interest in the equity

in his home, as well as the remaining elements of a Fifth

Amendment Takings Clause claim.

IV.   Conclusion

  For the foregoing reasons, the District’s motion to dismiss is

DENIED. An appropriate Order accompanies this Memorandum

Opinion.

Signed:    Emmet G. Sullivan
           United States District Judge
           September 30, 2014




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