member just compensation claim a claim that was not litigated in state court and a place that requires the straight for application of federal law so the question is whether abstention immunity or  those either because the harms that he's alleging come from the defendant's actions and not from the state court itself and that's because the state court themselves did not affect waves taking under pennsylvania law taking is affectionate upon the filing of the declaration of the taking and the title actually passes to the condom nor upon that filing  to the extent that there are issues that we live in gated in the state court that the state court decided the proper mechanism for addressing those would be on clay a claim preclusion and not a wrecker feltman because her fellow men under exxon only goes to the state to the state court judgment itself and if the injury flows from the state court judgment and so that's what happened in campbell be a case of the court reference in his order in that case it was the court ordered forfeiture itself that be appellant argued constituted the taking here  merrett is not alleging that the court order itself constitute a taking he's alleging that the declaration of taking constituted the taking so and that's that's one of the distinction as i understand it and  a just the clarify one thing there are two basic cause it claims he had here but just compensation claim he didn't get enough money for what they were taking from him then a due process claim challenging the power of the pennsylvania officials the authority to condemn his property your briefing i think we only ask you to deal with that st issue is that correct but just compensation yes your honor that's what regards to the states sort of power to take his property right right so you know as it is counsel we don't represent mr maritz and so mr i just want to be c seems that it's it's the writ of possession it's issued by the state court that finalizes that transfer and in and uphold it under law why under those circumstances shouldn't we treat that as what we're really effects the injury here which would then bring outside of the just compensation point and i understand the distinction you're drawing there but wouldn't that bring us back to the vast majority of cases that the federal courts do invoke ricker feldman in dealing then courtney not as you are going to possession the court may not get involved at all so under stress so that's so the writ of possession is sort of an action taken by the court that says yes you may take possession of this land but did challenge it in the court didn't agree with it so so it begins to feel like well you know where do we start you know where where do we do we say where the interest are to it or or what kind of you know made that injury finally possible and it does seem a little weird if we if we go with initial actor as opposed to ultimate actor because usually most reasons to bring the person to state court don't start was what the court themselves d fellman because the actual the actual complained of by the state actor and would be the harm would be the harm just like in this case the action by the state actor and the taking was was done by the state actor and then just approved by the by the court and so that's what i think the court that the supreme court was doing in exxon is sort of teasing out one claim preclusion applies versus worker fellman and narrowing the application of rocker feldman to truly the instances where the where the judgment itself is what's causing the claimants harm not would one be you think and that's they can correct me if i'm i'm wrong but i believe that the state and the different iterations of this case perhaps at the district court level they did br apply yes i suppose if if he is seeking prospective relief for constitutional violations that are then ex parte young would apply he and he could have a viable claim against against state officials and their fishel capacity is is is he permitted to bring an official a claim against state officials in their official capacity in federal court for tony no state sovereign immunity th amendment whatever whatever kind of bundle you want to call this this this area jurisprudence is is that permitted i believe so you honor however what what nick makes makes clear is that the sort of the primary remedy for a taking is is compensation so to the extent that you know he is alleging and judged him or prospective relief that's you know sort of the exception to the rule where the remedy is as compensation as opposed to equitable relief indeed equitable remedies are typically unavailable  he can bring claims against the state as well as state officials and therefore city look look that may be where the supreme court goes in the next five years but i don't see a case that ever says that i mean it need might be a preview of coming attractions in that respect but is there any case that says that just for takings claims i understand that takings have their own component to them that says this is a little more self executing than other types of constitutional rights but that doesn't mean that even if it is a little more self executing that the proper forum is still federal court for that self executing right in so it seems to me that takings in the  amendment can be reconciled by saying yes you have the self executing claim it's going anywhere oh by the way it's set in federal courts when you're suing a state official in their official capacity and is or is there any case that says binding precedent on this court either way and i think that the structure of the constitution itself provides an avenue or implies that  it does not apply to th amendment takings claims and then nic just merely reaffirms that interpretation of the constitution and i can go through that if you yeah yeah it was that's really interesting for me because right now i see right so as the structure of the constitution of your honor mentioned the th amendment mandates a sex a self executing damages remedy and then through the th amendment this applies to the states and the supreme court  held that the th amendment pierces sovereign immunity in order to enforce the guarantees of the th amendment that's what the supreme court held and it's patrick versus that's or so under that reasoning when the state court are now the state court when the state fails to provide just compensation they're violating the th amendment and sovereign immunity doesn't apply so the way that nick sort of reaffirms that and and this goes your point i think about the federal forum so nick reaffirms this reasoning because nick stands for the proposition that went against can come directly to federal court for takings claims notwithstanding any state court remedies or procedures and and prior to nick that's kind of what the federal courts were doing they were kicking takings claims back down to federal court i mean escapes me back to state court and saying that the th amendment barred takings claims in federal court but as long as the state court would hear that claim but what nic does is it says the right to bring a takings claim in federal court is not dependent on stay on sacred procedures that were anything or remedies so so so but real claim and it strikes me that you do all of these kind of federalism sort of analyses we've got to get one in run from eight izzie with it either being a takings claim for out or due process claims for up because when it of metamorphosis eyes is from one to the other it's easy to jump kind of you know logs from one to the other almost like a video game but the really answer is you got to pick one instead well your honor i'm not sure i we're not really jumping back and forth between the two we're really talking about the th amendment as applied to the states under the th amendment so i'm not i'm not sure that we're jumping  change the analysis but i think digging a little bit deeper looking at both next mandate that essentially plaintiffs can get their remedy as opposed to state court and then looking at the structure of the r here in federal court no no court has really looked at that and said well this is a still right with next mandate that federal courts are open or just as open to these claims as they courts also in  the structure of the constitution where states kind of gave up some of their sovereign immunity to the extent necessary to enforce the th amendment wouldn't we need a clear mandate from the supreme court before we  against municipal officials but only state level officials so so kind of federal court is open for taking claims against municipal officials and federal officials but not state level officials the rub is well the the i mean the federal courts have already sort of held that kind of need is have a mandatory remedy under the constitution they're just saying go to state court to get it right is different than saying you because exhaustion assumes that eventually some day they'll be a federal court it will hear your case but and so nick was decided in the context of exhaustion with the eventuality of a federal yes absolutely next holding was about exhaustion but the broader point that nick stands for is that requiring a plaintive to go to state court st to get their remedy  is not in line with a constitutional guarantee is under under the th amendment so while it doesn't address sovereign immunity that that sort of larger point that nick makes that  scott not state of pennsylvania in so it's a township issue really had no reason to ever touch concern yes yes that's right your honor we're not arguing that nick explicitly addresses sovereign immunity but we're saying that nick read in light of the past precedent that does address sovereign immunity undercuts that prior precedence rationale about requiring taking plaintiffs to go to state court st and at the state court says we're invoking sovereign immunity ok then you can come to federal court and now isn't it entirely consistent with appearing in federal court w is that you can actually bring taking suits against individuals in their personal capacity because individuals in their personal capacity don't have the power to take land under eminent domain lease only the state does or state officials and their fishel capacity so because an individual in their individual capacity doesn't have the sovereign powers necessary to  do it taking him down and you can't hold them liable in their personal capacity is it is it your position that if if we don't read nick the way you would like us to in terms of th amendment immunity that that's that's the end that again because individuals in their personal capacity don't have the power to take land claims are sort of not just a simple and that of course qualified immunity would apply america so even if sovereign immunity or that claim was just as full then mr maritz would have to show that qualified immunity doesn't apply so if so does so does that apply just to taking sort is that apply to just compensation claims to it there's a difference you know there's that there's that there's you know two parts that one is just i took the property the nd is now i owe you something just in return for the property is is your point that you're saying there my understanding of the case all of those apart they don't parse those two things out in the way that that we're doing here so i don't i'm not sure i can give you a definitive answer on that but it but if they did allow action i say three claims against individuals in their individual capacity again you have to go get over the qualified immunity hump and you would also sort of have be on practical ramifications where individual people could be liable for millions of dollars worth of damage as if the taking  mr court's power to dismiss drives from their equitable powers to dismiss under abstention principles derived from their equitable powers and here the court was sitting in law and so  abuses discretion because again and as a because we're focusing on the just compensation claim all that's required here is for the federal court to adjudicate is claim and it's a straightforward back question what is the fair market value of mr maritz as land and that's the street for application of federal law though unlike those significant stadia groups that really needs to have the federal court stay out of it happened in texas in burford the federal courts should abstain from exercising jurisdiction no and again that's because as amicus we're focusing on not the patent not the state's power to take the land under eminent domain but that we don't think kohls applies and although it doesn't go into its rationale the briefing relies upon its case fair assessment that survives quackenbush that basically holds that plaintiff is seeking both declaratory and monetary relief if the monetary relieve depends on a determination in the courts equitable power so is the so the equitable determination comes st and then the monetary damages is sort of a product of that and you can abstain because that is a primary primarily equitable claim or an equitable we don't think that the rationale underlying kohls applies here because he says in monetary damages that's not dependent on a declaration or an injunction which is what fair assessment held code violates the constitution both state and federal right well if arguably  i mean the fair assessment claim or just the burr there for argument general well if if what we're looking at is whether we have an unsettled question of state law and  constitution then you don't have a state law issue there you have a federal issue and one that disrupts the eminent domain code absolutely but then that require sort of a balancing test between whether  the the federal court can adjudicate a federal constitutional rights or whether sort of how many principles would outweigh batt our position that you don't have to reach that question here this case but the question is whether or not the injury was caused or the point that's most in dispute is whether the state court judgment is what caused the injury or if it was the initial taking and as we set forth in our solely an issue about compensation they're not trying to get into the taking but this is the court st has to consider the taking issue in the st instance that's a pretty quick question that the court has to address st late it's it's improper to just simply walk in isolation at the the issue of compensation because the court is required to st look at whether or not the taking was appropriate and indeed  when mr maritz initially filed in in state court and then later brought this case before the trip purported jurisdiction of of this court he was challenging the fact that he claimed that the land not in state court challenge the adequacy of his compensation that is he could not of challenge they didn't get just compensation in the state condemnation proceeding pennsylvania statute expressly mars right now it is t separate for proceedings you honor but again because part of the issue of whether or not that the compensation is appropriate would be dependent on whether or not but roc can appeal final state court judgments is to highest the highest equip it has to the supreme court and so we're not looking at what issues are involved in those in those appeals were just looking at whether there was a final judgment it's one thing to say there was a final taking and that's another thing to say whether there was or was not a final judgment as to the amount of just compensation and i think what judge ambros point was going to was where is the final judgment that would be precluded by ricker feldman as to just compensation the state law that's correct well and and your honor again for that and i realized that this time that the idea of something being you know intertwined with sort of elections and in that case the example that was given was terminations of parental rights ordering the state to take custody of a child and then said that rick or feldman would bar the father from them going to federal court seeking among other things the return of his child and similarly here this wasn't just solely a case about the about the compensation for the land that was seized by the pennsylvania mr maritz has been has consistently made clear throughout this litigation that he was seeking the return of his land the end of the continue continued seizure of his land which he believed to be improper so although he may not have explicitly said oh i'm so we well you know one of the things i'm looking at is you know this injunctive relief that would undo the state court judgment he has been asking for that and that was made clear in his complaint that he's a citizen so to the extent that he's challenging state court judgment to undo it perhaps or feldmann apply but the except but to the extent that he says hey i'm fine with the state court judgment i've got planes in the alternative i'm perfectly at peace with that state court judgment took my way and i just want get paid for my life well it sure it certainly doesn't feel then that he's asking a federal district court to review overturn the state court judgment much to the contrary the state court judgment provides the anchor the entire basis for his just compensation because the state court judgment took a split now he wants just compensation and so your point and rockefeller it might be true to say you're trying to say that it bars takings clane it is equally untrue it strikes me that it bars and that it doesn't bar i guess it's i'm sorry your honor i didn't mean to interrupt respectfully i have to disagree with amicus on as far as mean the judgment becomes final and i believe in me in the st iteration of this case one of the writ of possession it's the decision on the rest of possession that constitutes the final judgment so it's not merely the fact that penned i filed the declaration of taking in the blair county pennsylvania court of common pleas constituted the final judgment it was not until after they filed that mr maritz raised his preliminary objections as to the taking of the land and then the blair county court issued its decision that would be the final judgment then that would that would serve as the bar or we're looking at the nature of the judgment we want to know if it's simply a ratification of the prior injury or if it is itself what produces the injury and given about it wasn't proper to take his land or it was an excessive amount of land that was and was taking her nation to projects so i don't believe based on my understanding of how the eminent domain procedure would operate in that situation that i don't believe that the mere filing of the declaration is is the injury it's not until the court has it's not until the court of common pleas has decided on the objections to the taking that it not causing the interest for purposes of brick or stone and so if it's the transfer of title upon the declaration of taking it see injury and that's just looked on punisher ratified or acquiesced to and that's not struggled with the the nd and the th factor of record feltman in terms of the relief saw and what is actually being sought to be reviewed but in this case mr merits in his complaint his the plaintiffs didn't challenge that actual order they were challenging the a more general challenge the statute but ricker feldman wasn't implicated because they weren't seeking to actually directly challenge the order that allowed their home to be demolished by contrast here mr maritz did it seek injunctive relief seeing among other things to prevent the seizure of his particular piece of land so that's the state court judgment that he's asking now this court to to review reject that state court judgment so we believe that that would satisfy the th problem for her feldman and would therefore deprive this court of jurisdiction to  to what amicus and mr maritz sort of contend in the in their briefings this isn't merely a challenge as to whether or not you know this isn't so we a compensation issue as as i stated earlier rather mr maritz has been challenging the ability of the commonwealth of pennsylvania to seize his land under the statute as well as the eligibility of his name to be seized under state law and  that goes to his his claims as far as chain of title predating the existence of the commonwealth of pennsylvania and if if he were merely making an argument about as judge phipps i believe suggested by wham's been taken  i don't care about that i just want just compensation that be that be a completely different situation here he's been claiming throughout the pendency of this litigation that because of his chain of title the state can't seize his land at all under state law and he's also alleged that the seizure of his property didn't qualify as a public use under the pennsylvania const bhushan so for the court to determine those issues they're going to it would require the federal courts to wade into sort of the nuts and bolts of pennsylvania's and domain statute and determine whether or not you know this land does qualify as public use for the not that would qualify as land that could be seasoned with the statute and that's simply not those are exactly what sorts of issues that that burford abstention is designed to prevent the federal courts from having t work but words this burford even if that were to apply them or doesn't that permit nothing more than a court stating as opposed to dismissing the claim oh well under normal circumstances yes your honor but as as as your honour's aware of this this is now the the nd federal court case in relation to mr maritz is attempts to to bring this takings case had previously been raised in his in his st federal case that again was a removal of his state court case so there's normally abstention and just allowing a state contemplates that there's some sort of pending state court proceeding that needs to play itself out in some sort of parallel proceeding but mr case he removed to the state court proceeding to this court this court the federal district co where the relief sought is little or otherwise discretionary that is not damages so i'm not a loss as to how to just compensation claim can be barred by birth  compensation cannot be decided by those or without making determinations as that valuation and seeking compensation in the amount of that value can be characterized as equitable dependent because your honor the value of the land the just compensation of the land is going to be you know are you depending on whether or not sort of these insularity issues regarding taking that that mr merits and so so so so i mean ok so so the only equity tendency you have rather than just couple labor that's only up little dependency that you have is it a condition precedent for just compensation is taking this is that a fair saying your position if i understand that i understand your or your question yes your honor in that the amount of compensation is going to be dictated at least part on the whether or not  are the only way that we're using that is to say that to be extent that damages is being considered what the proper amount up and sation is for the land but that would be at least in some part dependent on to states that the title which the condom nor acquires in the property condemned shall pass the condom nor on the date of the filing and this is under the declaration of taking so the filing of the declaration of taking and the condom nor shall be by the nature of pennsylvania's state law these two things are analyzed separately so if we do look at the just come and say shown where the peripheral more complicated issues fall away and we have a claim that hasn't been adjudicated in state this case is quite complicated but one only focusing on the just come in station which again is a product of pennsylvania state statute i think but but but it but but isn't isn't the strongest argument against what you said d that we never ever hard to reach the just compensation issue if we find if we address and find that the taking was wrong and if that's the case then even though the amount of just compensation is not equitable that's just classic monetary relief getting to that question depends on the taking which may the taking then the just come stations not depend on anything that's just that's just what we've got but censors a st primary challenge that would prevent us from ever getting to just compensation or maybe just get just compensation anyway because these last title for x number of months or years were there anyway but i don't think that's in the right yard but in order for the city equitable sort of relief dependent on this court we need to go and say that the stake or eminent domain proceeding was was wrong was unconstitutional and if there never was a taking and have itself your honour's right then we would never get to go to the just compensation issue i guess what i'm saying is that if you if you don't you die if you don't say the state court was wrong in holding that this this taking was proper if you don't address that then you have just a straightforward just compensation claim but if you at this court does sort of go back and say well that taking was improper then he wouldn't be entitled to just compensation why supposed he might be entire system damages from the occupation of his land or something like that and it wouldn't be sort of the same kind of thank you for having and it's a great