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 
2 

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 
3 

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 
4 

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 
5 

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 
6 

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). 
7 

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 
8 

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 
9 

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 
10 

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 
11 

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. 
12 

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 
13 

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. 
14 

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 
15 

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, 
16 

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 
17 

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 
18 

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.
19 

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 
20 

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”). 
21 

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 
22 

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 
23 

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 
24 

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. 
25 

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). 
26 

(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 
27 

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 statecourt 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 
28 

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 statecourt 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. 
29 

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 statecourt 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 
30 

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 
31 

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). 
32 

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. 
33 

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 
34 

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 crossclaim may include a claim that the party against whom 

it is asserted is or may be liable to the crossclaimant 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, 
35 

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 
36 

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 codefendant 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).
37 

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 
38 

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 
39 

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 
40 

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. 
41 

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 
42 

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 
43 

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 
44 

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). 
45 

(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). 
46 

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. 
47 

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 
48 

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