Rule 206 ELECTRONIC CITATION: 2004 FED App. 0280P (6th Cir.) File Name: 04a0280p.06… v. Commonwealth of Kentucky

*The Honorable B obb y R. B aldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0280P (6th Cir.)
File Name: 04a0280p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DLX, INC.,
Plaintiff-Appellant,
v.
COMMONWEALTH OF
KENTUCKY, et al.,
Defendants-Appellees.
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No. 03-5528
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 02-00164—David L. Bunning, District Judge.
Argued: June 11, 2004
Decided and Filed: August 26, 2004
Before: SILER, MOORE, and BALDOCK, Circuit
Judges.*
2 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
_________________
COUNSEL
ARGUED: D. Duane Cook, Stamping Ground, Kentucky,
for Appellant. S. Bradford Smock, OFFICE OF LEGAL
SERVICES, Frankfort, Kentucky, for Appellees.
ON BRIEF: D. Duane Cook, Stamping Ground, Kentucky,
for Appellant. S. Bradford Smock, Mark A. Posnansky,
OFFICE OF LEGAL SERVICES, Frankfort, Kentucky, for
Appellees.
MOORE, J., delivered the opinion of the court, in which
SILER, J., joined. BALDOCK, J. (pp. 29-39), delivered a
separate opinion concurring in the judgment of dismissal
only.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
Appellant DLX, Inc. (“DLX”) appeals from the dismissal of
its § 1983 action against Defendants-Appellees the
Commonwealth of Kentucky, the Kentucky Natural
Resources and Environmental Protection Cabinet (“Cabinet”),
and James E. Bickford, Secretary of the Cabinet, in his
official capacity (collectively, “Kentucky”), alleging a taking
of its property without just compensation in violation of the
Fifth Amendment. The district court dismissed the complaint
on Kentucky’s Federal Rule of Civil Procedure 12(b)(1)
motion, for lack of subject matter jurisdiction, on the basis of
ripeness and the Rooker-Feldman doctrine. Although both of
these grounds were inapposite, we sustain this dismissal on
different reasoning, because the Eleventh Amendment bars
DLX’s claims against Kentucky in federal court. The district
court’s dismissal is therefore AFFIRMED.

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
3
I. BACKGROUND
The Lilley Cornett Woods (“Woods”), in Letcher County,
Kentucky, is a tract of land owned by the state and maintained
by Eastern Kentucky University as a wildlife refuge and
research facility. The Woods are designated a National
Natural Landmark as “[p]robably the only surviving virgin
tract of any size in the Cumberland Mountains section of the
mixed mesophytic forest, which is characterized by a
great variety of tree species.” National Park Service,
N a t i o n a l R e g i s t r y o f N a t u r a l L a n d m a r k s ,
http://www.nature.nps.gov/nnl/Registry/USA_Map/States/
Kentucky/nnl/lcw/index.htm. The surface rights to the
Woods were originally purchased by Kentucky from the
Kentucky River Coal Company, which retained the mining
rights; a portion of the property was also purchased from the
Cornett heirs. In 1975, the South-East Coal Company
obtained a lease from the Kentucky River Coal Company to
mine coal, including coal under the Woods, pursuant to which
South-East acquired a permit from the state to mine 3,000
acres. Immediately before filing the amendment to South-
East’s then-existing permit that is at issue in this case, South-
East filed for bankruptcy. DLX purchased all of South-East’s
assets, including the leases with Kentucky River and the state
permit. At that point, DLX had a lease and permit allowing
it to mine approximately 3,000 acres, which did not include
any mining under the Woods. All the coal remaining in the
lease is either under the Woods or can only be accessed by
DLX through the land under the Woods.
DLX applied for Amendment No. 3 to the existing permit,
which proposed an additional 130 acres to be added to the
3,000-acre permit area. DLX submitted an initial plan to the
Cabinet, which responded with a “deficiency letter.” DLX
resubmitted, adding “a pillar design for subsidence control.”
Joint Appendix (“J.A.”) at 73 (Hearing Officer’s Report and
Recommendation). After additional deficiency letters, a
seventy-five-foot vertical cover between mine operations and
4 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
the surface was proposed in a third submittal; further
deficiency letters resulted in a fourth submittal which left a
250-foot vertical cover, and proposed a fifty-percent recovery,
that is, that half the coal in the area was extractable under the
plan. No deficiency letter was issued by the Cabinet, but
DLX in reassessing its fourth submittal decided that the
proposal was unfeasible, and that a 250-foot cover would
result in only twenty-five-percent recovery. DLX therefore
withdrew its fourth proposal, submitting a fifth proposal
instead which provided for fifty-percent recovery, but only a
110-foot vertical cover. This proposal was submitted with a
letter requesting that the permit be issued or denied “as is.”
J.A. at 73 (Report). On April 25, 1994, the application was
denied, for six reasons: the potential danger to the old-growth
forest portion of the Woods; a failure to demonstrate that the
mining operation could be feasibly accomplished under 405
KAR 8:010 § 14(2); that the application did not contain
sufficient geological and hydrologic information to
demonstrate the hydrologic consequences of the project on
the Woods; that it did not present information detailing the
care the applicant would take to minimize hydrologic
consequences; that there was inadequate information
regarding the surrounding nature habitats; and there was no
information on the minimization of the impact of mining on
those habitats. DLX petitioned for review, and at the hearing,
the reasons for denial of the application were distilled to one:
“The application for the Permit (Amendment No. 3) was
acceptable to the Cabinet except for the failure of the
Petitioner to agree to a minimum cover (i.e., distance from
mining to the surface) of greater than 110 feet.” J.A. at 75
(Report).
The Hearing Officer of the Cabinet affirmed the decision of
the Cabinet to deny the permit, finding both that the Cabinet
could provide extra protection for the old-growth portion of
the Woods that is not required for second-growth forests and
that the Cabinet had a sufficient basis for determining that the
110-foot vertical cover proposed by petitioner was inadequate

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
5
to minimize the impact to the hydrologic balance of the
Woods. Noting that the petitioner bore the burdens of
production and persuasion, the officer concluded that DLX
failed to carry its burden of showing “that a 110-foot vertical
cover would minimize disturbances to the hydrologic balance
within the old-growth portion of the Lilley Cornett Woods.”
J.A. at 93 (Report). This report was adopted by then-
Secretary Phillip J. Shepherd without comment.
Although Kentucky law allows a permit applicant to seek
judicial review of a Secretary’s final Order under KRS
§ 350.0305, DLX immediately filed a state-court takings
claim, asserting that the denial of a permit to mine under the
Woods constituted a regulatory taking of its property in
violation of the Kentucky constitution. DLX expressly
reserved its federal claims, noting,
RESERVATION OF FEDERAL CLAIMS
DLX hereby reserves its Federal claims. DLX will
pursue in Federal court any remedies it may have under
the United States Constitution or under United States
statutes or regulations.
J.A. at 67 (State Ct. 1st Am. Compl.). After the state trial
court dismissed the case for lack of ripeness, an intermediate
court reversed, and the Supreme Court of Kentucky granted
the Cabinet’s petition for review. See Commonwealth v.
DLX, Inc., 42 S.W. 3d 624, 625 (Ky. 2001). That court
decided the case on the basis of exhaustion of administrative
remedies, rather than ripeness. See id. (“We conclude that
DLX failed to exhaust its administrative remedies.”).
Because DLX had not appealed the Secretary’s final order
before filing a takings claim, it could not proceed on the state
constitutional takings claim. Id. at 626-27. Two justices (of
seven) dissented, noting that DLX was prevented from raising
its constitutional claims in the administrative proceedings,
and that it would have been prevented from doing so in its
6 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
appeal from the decision of the Cabinet. Id. at 627
(Wintersheimer, J., dissenting). As the decision was one of
state law only, a writ of certiorari from the United States
Supreme Court was not sought.
One year after the Kentucky Supreme Court dismissed
DLX’s state constitutional claim, DLX filed in federal district
court, alleging a violation of the Fifth Amendment actionable
under 42 U.S.C. § 1983. Kentucky immediately moved for
dismissal under Federal Rule of Civil Procedure 12(b)(1),
arguing that the court lacked subject matter jurisdiction under
the doctrine of sovereign immunity of the Eleventh
Amendment, the doctrine of ripeness, the doctrine of
exhaustion, the Rooker-Feldman doctrine, and res judicata.
The district court granted the motion on March 24, 2003, on
the basis of ripeness and the Rooker-Feldman doctrine.
II. ANALYSIS
A. Standard of Review
A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the
plaintiff must be considered as true, or it can attack the factual
basis for jurisdiction, in which case the trial court must weigh
the evidence and the plaintiff bears the burden of proving that
jurisdiction exists. See RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996); United
States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1990). As the district court made essentially no factual
findings in deciding it that lacked jurisdiction, we will treat
this as a “facial” 12(b)(1) motion. We review a motion to
dismiss under Rule 12(b)(1) de novo where it requires no
fact-finding. See COB Clearinghouse Corp. v. Aetna United
States Healthcare, Inc., 362 F.3d 877, 880 (6th Cir. 2004);
RMI, 78 F.3d at 1135 (in factual attack, district court’s factual
findings are reviewed for clear error).

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
7
B. Rooker-Feldman
The Rooker-Feldman doctrine, named for Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),
stands for the proposition that a party aggrieved by a state-
court decision cannot appeal that decision to a district court,
but must instead petition for a writ of certiorari from the
United States Supreme Court. This circuit has devised a
number of formulae for determining when a district court
lacks jurisdiction under the Rooker-Feldman doctrine; broken
down to essentials, there are two categories of cases barred by
the doctrine. First, when the federal courts are asked to
“engage in appellate review of state court proceedings,” the
doctrine necessarily applies. Peterson Novelties, Inc. v. City
of Berkley, 305 F.3d 386, 390 (6th Cir. 2002). In determining
when a plaintiff asks for appellate review, we have in the past
looked to the relief sought, see Dubuc v. Mich. Bd. of Law
Exam’rs, 342 F.3d 610, 618-19 (6th Cir. 2003), or asked the
question whether the plaintiff alleges “that the state court’s
judgment actively caused him injury [rather than] that the
judgment merely failed to redress a preexisting injury,”
Pieper v. Am. Arbitration Ass’n, Inc., 336 F.3d 458, 461 n.1
(6th Cir. 2003). See also Hutcherson v. Lauderdale County,
326 F.3d 747, 755 (6th Cir. 2003) (“‘[T]he fundamental and
appropriate question to ask is whether the injury alleged by
the federal plaintiff resulted from the state court judgment
itself or is distinct from that judgment.’” (quoting Garry v.
Geils, 82 F.3d 1362, 1365 (7th Cir. 1996)); Tropf v. Fid. Nat’l
Title Ins. Co., 289 F.3d 929, 937 (6th Cir. 2002) (The doctrine
“precludes federal court jurisdiction where the claim is a
specific grievance that the law was invalidly — even
unconstitutionally — applied in the plaintiff’s particular
case.” (internal quotation marks and citations omitted)).
The second category of cases barred by Rooker-Feldman is
those which allege an injury that predates a state-court
determination, but present issues inextricably intertwined
8 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
1W e note that two recent cases of this court have attempted to adopt
the Seventh Circuit’s division between Rooker-Feldman abstention and
preclusion law, casting aside the Pen nzoil inextricably-intertwined
formulation to the extent that it op erates to forbid subsequent litigation of
issues already decided by a state court where the injury alleged in federal
court predates the state proceeding. See Stemler v. Florence, 350 F.3d
578, 588-89 (6th Cir. 2003) (“As [plaintiff] is not directly challenging the
state court’s judgments in federal court, the doctrines of claim and issue
preclusion are more p roperly applied to this case.”); Hood v. Keller, 341
F.3d 593, 597-599 (6th Cir. 2003) (reversing district court’s application
of the Rooker-Feldman doctrine where plaintiff had raised facial and as-
applied constitutional challenges in prior state-court criminal proceeding
without applying Pen nzoil formulation). W hatever the advisability of
such a move, it is clearly foreclosed by prior cases of this court requiring
the dismissal of claims that involve an injury predating the state-court
proceedings on the exclusive grounds that the issues that the federal court
would have to decide are inextricably intertwined with the state-court
decision, in that to allow relief would require the conclusion that the state
court had wrongly decided the issues before it. See P eterson N ovelties,
Inc. v. City of Berkley, 305 F.3d 38 6, 390-93 (6th Cir. 2002).
with the claim asserted in the prior state court proceeding.
Adopting Justice Marshall’s phrasing in Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring),
this circuit has held,
The federal claim is inextricably intertwined with the
state-court judgment if the federal claim succeeds only to
the extent that the state court wrongly decided the issues
before it. Where federal relief can only be predicated
upon a conviction that the state court was wrong, it is
difficult to conceive the federal proceeding as, in
substance, anything other than a prohibited appeal of the
state-court judgment.
Peterson Novelties, 305 F.3d at 391. See, e.g., Anderson v.
Charter Township of Ypsilanti, 266 F.3d 487, 492-94 (6th
Cir. 2001) (applying “inextricably intertwined” test to hold
Rooker-Feldman abstention appropriate).1

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
9
2The concurrence reads the Kentucky Supreme Court’s opinion as
applying Williamson Coun ty prong-one ripene ss; we respectfully disagree
with this interpretation of the state court’s opinion. Although “prong-
one” ripeness under William son County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172 , 186 -91 (1 985 ), is a requirement under
Kentucky law, the Kentucky Supreme Court did not rest its decision on
that ground. W hile the K entucky trial court “granted the Cabinet’s
motion for judgment on the pleadings on grounds that the case was not
ripe for judicial determination and that DLX failed to exhaust its
administrative remedies,” the Kentucky Supreme Court concluded only
“that DLX failed to exhaust its administrative remedies.” Comm onw ealth
v. DLX, Inc., 42 S.W .3d 624, 625 (Ky. 2001). Although the Kentucky
Supreme Court in DLX cited to William son County’s language regarding
“prong-one” ripeness, it clearly did so to bolster its exhaustion decision,
noting that the William son County Court “explained the exhaustion of
administrative remedies requirement in taking cases thusly” in introducing
the quotation. Id. at 626. Finally, in summing up its holding, the
Kentucky S upreme C ourt made clear the grounds for its decisio n:
The Court of Appeals erred in holding that making an
unco nstitutional-as-app lied challenge in an administrative
proceeding creates an exemption to the exhaustion-of-remedies
requirement. Therefore, we reverse the Court of Appeals and
hold that DLX 's failure to exhaust its administrative remedies by
failing to appeal the Secretary's order, deprived the Franklin
Circuit Court of subject-matter jurisdiction to hear DLX 's
takings claim.
DLX’s claim is of the second type: the injury alleged is the
permit denial that predates the state-court proceedings, not the
state-court decision itself, and the relief that DLX requests is
monetary. Therefore, the doctrine bars jurisdiction only to the
extent that the district court must determine that the state
court decided an issue wrongly in order for DLX’s claim to
succeed. Here, the state court decided that administrative
exhaustion was a necessary component of a state
constitutional takings claim; that although certain exceptions
applied to that requirement, DLX met none of them; and that
DLX had failed to exhaust administratively its claims. See
DLX, 42 S.W. 3d at 624-26. As administrative exhaustion is
explicitly not a component of a federal takings claim,2 the
10 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
Id. at 627. B ecause ad ministrative exhaustion is explicitly not a
compo nent of a federal takings claim under Williamson County, 473 U.S.
at 194 n.13 (“Exhaustion of review procedures is not required.”), the
district court could have concluded that DLX had made out a regulatory
taking of its property under the Fifth Amendment and was entitled to
relief without undermining any of the state court’s conclusions. D LX’s
federal takings claim and its state takings claim are not
“indistinguishable,” as the concurrence asserts, for this reason: the federal
claim does not require administrative exhaustion, where the state claim
doe s. Rooker-Feldman is thus inapplicable in this case.
3If DLX had in fact been allowed in the state courts to reach the
merits of its takings claim and then lost, it is likely that the formula
adopted by this circuit as applied in our p ast cases would require Roo ker-
Feldman abstention, in evident tension with Williamson County Regional
Planning Commission v. Hamilton Bank, 473 U.S. 172 , 195-97 (198 5),
which clearly contemplates that a takings plaintiff who loses he r claim in
state court will have a day in fed eral co urt. The catch-22 of the
“Williamson trap” discussed below with respect to res judicata is also
evident with respect to the Rooker-Feldman doctrine. We do not need to
confront these tensions in this case, however, and express no opinion as
to the reso lution of this conflict. To the extent that recent cases of this
court indicate a recognition that the “inextricably intertwined” prong of
Rooker-Feldman may be doing the work that res judicata law should do,
an England reservation may be sufficient to defeat a Rooker-Feldman
argument where the England reservation would defeat claim preclusion.
See Ivy Club v. Edwards, 943 F.2d 27 0, 284 (3d C ir. 1991) (England
reservation sufficient to d efeat Rooker-Feldman as well as res judicata
after Pullman abstention).
district court could have concluded that DLX had established
a regulatory taking of its property under the Fifth Amendment
and was entitled to relief without undermining any of the state
court’s conclusions. Indeed, as discussed below, the Supreme
Court in Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172, 195-97 (1985), clearly
contemplates that after a state just-compensation proceeding,
a federal-court action will be filed.3 Rooker-Feldman is
inapplicable here.

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
11
C. Williamson County Prong-Two Ripeness and
Administrative Exhaustion
Williamson County, 473 U.S. at 186-91, 194-96, sets out
two requirements for a federal regulatory-takings claim to be
ripe. First, a plaintiff must demonstrate that the
decisionmaking body has come to a “final” decision, allowing
the federal courts to assess how much use of the property is
allowed and therefore whether the regulatory decision
amounts to a taking. Id. at 186-91. This has become known
as “prong-one ripeness,” and will be discussed in more detail
below, as an issue of fact remains as to whether DLX satisfies
prong-one ripeness. The district court, however, apparently
relied on prong-two ripeness, which requires that a plaintiff
“seek compensation through the procedures the State has
provided for doing so.” Id. at 194. This refers only to an
action for just compensation or inverse or reverse
condemnation, but not to review procedures. “Exhaustion of
review procedures is not required.” Id. at 194 n.13. That
administrative exhaustion is not required is part of the general
rule that exhaustion is never required in § 1983 suits. See
Patsy v. Fla. Bd. of Regents, 457 U.S. 496 (1982). Finality,
however, is required, so that the federal court can assess the
scope of the taking; an inverse-condemnation action is
required, because no violation of the Fifth Amendment
attaches until a plaintiff “has used the procedure and been
denied just compensation,” Williamson County, 473 U.S. at
195; but administrative exhaustion is not required.
Kentucky argues on appeal that despite this clear language
from Williamson County, an exhaustion requirement still
applies. Kentucky cites to a number of Kentucky state cases,
two district court cases, and a Federal Circuit case in which
the plaintiff apparently never satisfied Williamson County
prong-one ripeness, in never having pursued a permit. This
sparse precedent is unavailing in the face of clear Supreme
Court precedent that exhaustion is never required in a § 1983
case (except pursuant to Congressional reform) and that there
12 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
is no exception for takings claims. Williamson County, 473
U.S. at 193, 194 n.13.
The district court apparently held that because the state-
court action was dismissed on the basis of a lack of
jurisdiction, “DLX has not yet been denied just
compensation.” J.A. at 407 (D. Ct. Op. at 10). But DLX has
been denied just compensation in a state suit; it sought
compensation and none was awarded. That the decision was
not “on the merits” in the strictest sense does not mitigate
DLX’s injury; its property has allegedly been taken through
the denial of its permit application, and an attempt to remedy
that injury in the state court has been defeated by a rule of
state law. DLX has no more remedy to seek in state court; the
time for application for review of the Cabinet’s decision is
long past, and any state-court action it files will be dismissed
for want of exhaustion. DLX has been denied a federal right
through the operation of a state procedural rule without
analogue in federal law, and its complaint is ripe.
In its brief, Kentucky attempts to defend this aspect of the
district court’s holding by arguing that DLX is precluded
from arguing “that it has pursued its state condemnation
remedy or that the state condemnation remedy was
inadequate, because it did not invoke it correctly.” Appellees’
Br. at 24. But Williamson County is clearly concerned with
ripeness, not with giving state decisionmakers adequate
opportunity to right a wrong. This is demonstrated by the
Williamson County Court’s staunch refusal to require
administrative exhaustion. “Remedial procedures” are not
required by Williamson County, because the value isn’t
allowing state decisionmakers to arrive at a decision, but
instead is ensuring that an injury has actually occurred. DLX
has not received just compensation in a state action for the
same; its federal claim is ripe under Williamson County prong
two. See Front Royal & Warren County Indus. Park Corp. v.
Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 1998) (even
where plaintiff made bad-faith effort in state court, “no clear

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
13
4Although res judicata is not jurisdictional but an affirmative defense,
it would form an indepe ndent basis for disposing of the case were it held
to apply, and both parties have extensively briefed the issue.
5Most of the decisions use the terms “issue preclusion” and “claim
preclusion” rather than “co llateral esto ppe l” and “res judicata,” to avoid
con fusion of the use of “res judicata” to mean the entire body of
preclusion law with its narrow use as a synonym for “claim preclusion.”
In this opinion, we will use “res jud icata” to refer to b oth the doctrines of
claim preclusion and issue preclusion, and we will use those latter terms
whenever possible.
basis under Williamson County to determine that [the] takings
claim is other than finally ripe for adjudication in a federal
forum.”).
D. Res Judicata and England Reservation4
The availability of federal courts to hear federal
constitutional takings claims has often seemed illusory,
because under Williamson County takings plaintiffs must first
file in state court, as DLX did, before filing a federal claim,
and because in deciding that federal claim, preclusive effect
must be given to that prior state-court action under 28 U.S.C.
§ 1738 according to the res judicata5 law of the state,
including the doctrines of merger and bar whereby all claims
which could have been brought in an earlier cause of action
are precluded. See Michael M. Berger, Supreme Bait &
Switch: The Ripeness Ruse in Regulatory Takings, 3 WASH.
U. J. L. & POL’Y 99 (2000). Kentucky state law applies res
judicata to bar not just asserted claims, but all claims which
should have been raised in prior litigation. “[I]t has long been
recognized that a party may not split its cause of action,
therefore, if a cause of action should have been presented and
the party failed to do so and the matter should again arise in
another action, it will be held that the first action was res
adjudicata as to all causes that should have properly been
presented.” Newman v. Newman, 451 S.W.2d 417, 419 (Ky.
14 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
6Although Newman v. Newman, 451 S.W .2d 417, 419 (Ky. 1970),
has been the law in Kentucky since its issuance and continues to be cited
by Kentucky state courts for the prop osition that claims which should
have been brought in the first proceeding are subject to claim preclusion,
see, e.g., Whittake r v. Cecil, 69 S.W.3d 69, 72 (Ky. 2002), this court has
not consistently hewn to that p rinciple. Compa re Stemler v. Florence,
350 F.3d 578, 588 (6th Cir. 2003) (relying on Yeoman v. Kentucky, 983
S.W . 2d 459, 464-65 (Ky. 1998), and Barnes v. McDo well, 848 F.2d 725,
730-31 (6th Cir. 1988), in allowing federal constitutional substantive due
process claim to go forward desp ite previous state-court wrongful-death
action arising from same set of facts) with Donovan v. Thames, 105 F.3d
291, 295 (6th Cir. 199 7) (“U nder Kentucky law, res judicata, or claim
preclusion, ‘may be used to preclude entire claims that were brought or
should have been bro ught in a prior action. . . ” (quoting City of
Covington v. Bd. of Trs. of the Policemen’s and Firefighters’ Ret. Fund,
903 S.W.2d 517, 521 (Ky. 1995)) and Consol. Television C able Serv., Inc.
v. City of Frankfort, 857 F.2d 354, 357 (6th Cir. 1988) (rejecting claims
that “could have been raised in the prior litigation” under the authority of
Newman and Vinson v. Campbell County Fiscal Ct., 820 F.2d 194, 197
(6th Cir. 1987)). Yeoman, 983 S.W.2d at 465 , cited by Stemler, requires
that for “claim preclusion to apply, the subject matter of the subsequent
suit must be identical,” and cites to Newman for the proposition that
“there must be identity of the causes of ac tion” for claim preclusion to
apply. The key paragraph in Newman reads as follows:
The general rule for determining the question o f res adjudicata
as between parties in actions embraces severa l cond itions. First,
there m ust be id entity of parties. Second, there must be identity
of the two causes of action. Third, the action must be decided
upon its merits. In short, the rule of res adjudicata does not act
as a bar if there are different issues or the questions of law
presented are different. Likewise, it has long been recognized
that a party may not split his cause of action, therefore, if a cause
of action should have b een p resented and the party failed to do
so and the matter should again arise in another action, it will be
held that the first action was res adjudicata as to all causes that
should have properly been presented. We stated the rule in Hays
v. Sturgill, 193 S.W.2d 64 8, as follows:
“The rule that issues which have been once litigated
1970). Therefore, because DLX could have brought its
federal constitutional claim in state court, argues Kentucky,
that claim is now barred by the operation of claim
preclusion.6 See Migra v. Warren City Sch. Dist. Bd. of

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
15
cannot be the subject matter of later action is not only
salutary but necessary in the administration of justice.
The subsidiary rule that one may no t split up his cause
of action and have it tried piecemeal rests upon the
same found ation. T o permit it would not be just to the
adverse party or fair to the co urts. So, as said in Combs
v. Prestonsburg Water Co., 84 S.W .2d 15, 18: ‘The
rule is elementary that, when a matter is in litigation,
parties are required to bring forward their whole case;
and “the plea of res judicata applies not only to the
points upon which the court was required by the parties
to form an opinion and prono unce judgment, but to
every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonab le
diligence, might have brought forward at the time.”’”
451 S.W.2d at 419 (first emphasis added). The error in Stemler thus
seems to be in following Newman’s formulation of the general rule of res
judicata without noting the additional rule against claim-splitting.
However this tangle of case law is to be resolved, it seems likely that even
under Stemler’s erroneous reading of Kentucky’s re s judicata rules, a state
takings claim and a federal takings claim wo uld be identical in bo th
“subject matter” and “cause of action” for the purpose of claim-preclusion
law.
7Although this would not ap ply where a plaintiff could demo nstrate
that the procedures offered by the state are clearly inadequate, the
distinction between a state cause of action and a cause of action in the
state courts is troubleso me. T he Suprem e Co urt has held that the Fifth
Amendm ent Takings C lause is a se lf-executing remedy in state courts, see
First English E van gelica l Lutheran Church v. County of Los Angeles, 482
Educ., 465 U.S. 75, 85 (1984) (state-court judgments have
claim-preclusive effects in § 1983 actions, barring
constitutional claims not brought in prior state-court contract
action). Of course, given Williamson County’s ripeness
requirements, DLX could not have chosen to file a federal-
court action first encompassing both its state and federal
claims; therefore, the interaction of Williamson County’s
ripeness requirements and the doctrine of claim preclusion
could possibly operate to keep every regulatory-takings
claimant out of federal court.7 Even if only issue preclusion
16 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
U.S. 304, 315-16 & n.9 (1987), so the “inadequate” remedy might be
either the refusal of the state court to reco gnize that remedy, which would
likely be redressable in the first instance through a petition for a writ of
certiorari in the United States Supreme Court, or instead the more narrow
inadequacy of having no promulgated state law providing a remedy. See
Kruse v. Village of Chagrin Falls, 74 F.3d 694 , 698-700 (6th Cir. 1996).
is held to be operative against plaintiffs who ripen under
Williamson County, most plaintiffs could still be barred from
the federal courthouse, as the state constitutional takings
claim will often overlap substantially with the federal claim.
As DLX was in fact prevented from litigating all the issues in
its state takings claim which would have affected its federal
takings claim, it only needs to overcome claim preclusion to
litigate its federal claim, but this is unusual in these cases.
The barring of the federal courthouse door to takings litigants
seems an unanticipated effect of Williamson County, and one
which is unique to the takings context, as other § 1983
plaintiffs do not have the requirement of filing prior state-
court actions; reading Williamson County, the expectation is
that an unsuccessful state plaintiff will then return to federal
court.
A number of circuits have addressed this problem in a
number of different contexts. Some plaintiffs have in fact
litigated their federal claims in state court, and wish to avoid
issue preclusion that they feel is unfair. Others chose not to
litigate their federal claims in state court, and some in doing
so made an explicit reservation of their federal claims to
federal court, as DLX did. The courts of appeals have
responded in various ways, but no court has held that where
a plaintiff reserves its federal claims in an England
reservation, named for England v. Louisiana State Board of
Medical Examiners, 375 U.S. 411 (1964), and does not
litigate them in the state courts, that claim preclusion will
operate to bar a federal-court action. England concerned an
action originally filed in the federal district court, which had

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
17
invoked Pullman abstention in refusing to hear the claim.
After the state courts rendered a decision adverse to the
plaintiffs, which resolved both the state-law issues that the
district court’s abstention was directed towards and the
federal claims that had been submitted unreservedly by the
plaintiffs to the state courts, the plaintiffs returned to federal
court to attempt to resuscitate their federal action. 375 U.S.
at 414. The district court granted defendants’ motion to
dismiss on the basis of res judicata. The Supreme Court
reversed, noting, “There are fundamental objections to any
conclusion that a litigant who has properly invoked the
jurisdiction of a Federal District Court to consider federal
constitutional claims can be compelled, without his consent
and through no fault of his own, to accept instead a state
court’s determination of those claims.” Id. at 415. “[A] party
may readily forestall any conclusion that he has elected not to
return to the District Court . . . by making on the state record
the ‘reservation to the disposition of the entire case by the
state courts’ . . . . When the reservation has been made, . . . his
right to return will in all events be preserved.” Id. at 421-22
(citations omitted). Some courts have held that a plaintiff in
state court for the sole purpose of ripening his claims under
Williamson County’s second prong is in state court
involuntarily, and therefore can make an “England
reservation” of his federal takings claims for federal
disposition.
While Kentucky cites three cases for the proposition that
res judicata applies regardless of the need to ripen under
Williamson County, closer examination of these cases reveals
that none requires that claim preclusion apply where, as here,
plaintiffs have made an England reservation of their federal
claims. In Wilkinson v. Pitkin County Board of County
Commissioners, 142 F.3d 1319 (10th Cir. 1998), the court
noted first that the “plaintiffs asserted federal claims in the
state court proceedings, which were fully adjudicated.” Id. at
1324. Therefore, both issue preclusion and claim preclusion
would have operated to bar the plaintiff’s claim in Wilkinson.
18 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
8Ma cri seems possibly to misread earlier Ninth Circuit prece dent in
holding that neither issue nor claim preclusion applies, in direct conflict
with Dodd I and Dodd II, Dodd v. Hood R iver Coun ty, 136 F.3d 1219,
122 2 (9th Cir. 19 98). The more recent San Remo case seems to indicate
that the issue /claim p reclusio n split will be the law in the Ninth Circuit.
The court then refused to decide “whether it is possible to
reserve a federal claim, or, if so, what must be done to reserve
such a claim, because at no time did plaintiffs attempt to do
so.” Id. at 1324-25. In Palomar v. Mobilehome Park Ass’n
v. City of San Marcos, 989 F.2d 362, 363 (9th Cir. 1993),
again, the plaintiff had asserted its federal claims in state
court, and no attempt at reservation was made. Finally, in
Peduto v. City of North Wildwood, 878 F.2d 725 (3d Cir.
1989), the plaintiffs asserted their federal claims in state
court, and again made no attempt to reserve their claims. Id.
at 726-27, 729 n.5. See also Rainey Bros. Constr. Co. v.
Memphis & Shelby County Bd. of Adjustment, 967 F.Supp.
998, 1004 n.5 (W.D. Tenn. 1997) (res judicata applies where
plaintiff brought federal claims in state court; because
plaintiff made no reservation, court “expressly declines
whether such a reservation would be effective.”), aff’d, 1999
WL 220128 (6th Cir. Apr. 5, 1999).
Indeed, the Ninth Circuit in cases since Palomar has
indicated that the reach of that case may be confined to issue
preclusion, rather than claim preclusion, where a reservation
has been made. See San Remo Hotel v. San Francisco, 364
F.3d 1088, 1094 (9th Cir. 2004) (“The City does not dispute
that the plaintiffs’ England reservation was sufficient to avoid
the doctrine of claim preclusion” but issue preclusion still
applies); Macri v. King County, 126 F.3d 1125, 1130 (9th Cir.
1997) (reservation is possible, preventing operation of res
judicata);8 Dodd v. Hood River County [Dodd I], 59 F.3d 852,
862 (9th Cir. 1995) (implicit consent by defendants to claim-
splitting and reservation by state courts sufficient to reserve
the claim for federal determination; issue preclusion still

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
19
9This prior Sixth Circuit precedent rebuts the concurrence’s
suggestion that England reservation only applies in a case where a party
reserves federal questions in state court following federal court abstention.
The plaintiff in Barnes v. McDo well, 848 F.2d 72 5, 732 (6th Cir. 1988),
had not even reserved his federal claims in state court, but “[b]y splitting
on his own initiative the state and fed eral actions stem ming fro m his
discharge, Barnes ac hieved the very same effect that he would have had
he made an England reservation.” In the takings realm, where Williamson
County prong-two ripeness combined with res jud icata law would
otherwise bar all federal takings claimants from the door of the district
co urt— a result clearly not contemplated by the Court in Williamson
County— this sort of extension of England to unwilling state court
litigants is necessary to avoid grave unfairness.
applies). Other circuits have also indicated that at least claim
preclusion can be barred by an England-style reservation. See
Kottschade v. City of Rochester, 319 F.3d 1038, 1041-42 (8th
Cir. 2003) (“The suggestion that [an England reservation
might prevent res judicata] has the virtue of logic and is
tempting,” but is premature in an initial federal-court action
that is unripe under Williamson County); Front Royal, 135
F.3d at 283 (England reservation appropriate in Williamson
County ripeness trap); Fields v. Sarasota Manatee Airport
Auth., 953 F.2d 1299, 1306 (11th Cir. 1992) (Williamson
County litigants “qualify for the exception to generally
applicable res judicata principles”). The Second Circuit has
even gone so far as to hold explicitly that issue preclusion
does not apply where a reservation has been made in the state-
court litigation necessary to ripen a takings claim under
Williamson County. See Santini v. Conn. Hazardous Waste
Mgmt. Serv., 342 F.3d 118, 130 (2d Cir. 2003). See also
Barnes v. McDowell, 848 F.2d 725, 732 (6th Cir. 1988) (party
who files in state court before filing in federal court, splitting
claims, enjoys England protection from res judicata even
without explicit reservation);9 Wicker v. Bd. of Educ., 826
F.2d 442, 446 (6th Cir. 1987) (party who files in state court
subsequent to federal court but before abstention order still
entitled to England reservation).
20 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
10One final note on ripeness: We have recognized in the past that res
judicata is clearly inapplicable as to claims that were unripe at the time of
a prior court proceed ing, see Katt v. Dykho use, 983 F.2d 690, 691 (6th
Cir. 1992), and this might seem to op erate to save DLX’s federal claims,
see Buckles v. Columbus Mun. Airport Auth., No. 02-3286, 2004 WL
346045, *3 n.1 (6th C ir. Feb. 23, 2004), but this conclusion
misunderstands the nature of ripeness. Although William son County
speaks broadly in terms of when the federal right of action ripens, prong-
two ripeness does not necessarily operate to bar the litigation of a federal
claim in the state courts because ripeness is a doctrine governing
justiciab ility in the federal courts, pursuant to Article III or prudential
concerns. See generally ER W IN CH EMERINSKY , FED ERA L JU R IS D IC T IO N
§§ 2.1, 2.4 (3 d ed. 199 9). T his is borne out by the number of cases where
plaintiffs assert federal claims in the state courts contemporaneous with
or even instead of their state constitutional claims. See, e.g., Lucas v.
Sou th Carolina Coastal C oun cil, 505 U.S. 1003 (1992) (reviewing state-
court decisio n on federal takings claim). O ur question is whether or not
the Kentucky state court would have heard DLX’s federal takings claim
or dismissed it as unripe, and whether or not DLX’s fed eral claim would
have been ripe in the Kentucky state court is a question that must be
adjudged with resp ect to K entucky ripene ss law. It appears that the o nly
ripeness requirement imposed b y the Kentucky courts on federal takings
claims is one equivalent to Williamson Coun ty prong-one ripeness. See
Spanish Cove Sanitation, Inc. v. Louisville-Jefferson County Metro. Sewer
Dist., 72 S.W.3d 918, 921 (Ky. 2002). Therefore, if DLX’s federal
takings claim is ripe in federal court now, it was ripe in state court at the
The weight of circuit-level authority is therefore clearly in
favor of allowing DLX’s England-style reservation in its
Kentucky state-court action to prevent the application of the
doctrine of claim preclusion in its subsequent federal-court
takings action. We join our sister circuits in holding that a
party’s England reservation of federal takings claims in a
state takings action will suffice to defeat claim preclusion in
a subsequent federal action. It is unnecessary to decide in this
case whether or not the Second Circuit’s holding in Santini
that issue preclusion is also inapplicable is the better rule,
because the Kentucky Supreme Court did not decide any
issues that affect DLX’s right to recovery on its federal claim.
Therefore, the doctrine of res judicata does not bar DLX’s
federal takings claim.10

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
21
time of the state-court litigation.
E. Williamson County Prong-One Ripeness
As noted above, Williamson County’s first ripeness
requirement for federal regulatory takings claims in federal
court is that the state or local decisionmakers have made a
final decision, such that a federal court assessing whether or
not a taking has occurred can look to that decision in
assessing what use can be made of the property. Williamson
County, 473 U.S. at 186-91. Kentucky vigorously asserts that
DLX has not adequately demonstrated a final decision on the
part of the Cabinet; DLX equally vigorously asserts that in
fact a final decision has been made. The parties focus their
attention on the amount of vertical cover required by the
Cabinet: DLX argues that the Cabinet is immovably settled
on a 250-foot vertical cover; Kentucky argues that some
amount of vertical cover between 110 feet and 250 feet may
be acceptable to the Cabinet.
Williamson County itself concerned a developer’s
application for a construction permit from the local planning
commission. In 1973, a predecessor in interest to the plaintiff
had submitted a preliminary design to the commission, which
was approved; the design was continuously reapproved during
development and construction, even after the zoning laws
changed, through 1980. A final plan was submitted in 1980,
which was disapproved by the Commission; after a change in
ownership, revised plans were submitted, which were also
disapproved. These decisions were held not to be final by the
Court, however, because variances could be sought for “five
of the Commission’s eight objections to the” plan. Id. at 188.
Until those variances were sought and rejected, the takings
claim was not yet ripe. The next Term, the Court applied the
ripeness requirement again in MacDonald, Sommer & Frates
v. County of Yolo, 477 U.S. 340, 352 (1986), holding that a
developer who had only submitted one proposal that had been
22 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
rejected did not have a ripe takings claim, noting, “Rejection
of exceedingly grandiose development plans does not
logically imply that less ambitious plans will receive similarly
unfavorable reviews.” Id. at 353 n.9. But three subsequent
Supreme Court decisions found Williamson County ripeness.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1013 & n.3 (1992), the Court, over dissent, held that because
the governing body stipulated that no permit would have been
issued, the claim was not unjusticiable under Williamson
County. In Suitum v. Tahoe Regional Planning Agency, 520
U.S. 725 (1997), the Court noted that the requirement
“responds to the high degree of discretion characteristically
possessed by land use boards in softening the strictures of the
general regulations they administer,” id. at 738, in the course
of holding that because in the instant case, the agency had no
discretion over whether the plaintiff would be allowed to use
her land, “no occasion exists for applying Williamson
County’s requirement.” Id. at 739. Finally, in Palazzolo v.
Rhode Island, 533 U.S. 606 (2001), in finding a regulatory
taking in a state’s refusal to allow a landowner to develop
wetlands property, the Court rejected a suggestion that “while
the Council rejected petitioner’s effort to fill all of the
wetlands, and then rejected his proposal to fill 11 of the
wetland acres, perhaps an application to fill (for instance) 5
acres would have been approved.” Id. at 619. In doing so,
the Court examined the rejection of both proposals, studying
the grounds relied upon, and determined that no development
would be permitted: “Further permit applications were not
necessary to establish this point.” Id. at 621. Thus,
Williamson County prong-one ripeness is a factual
determination, taking into account all relevant statutes,
ordinances, and regulations, that the decisionmaker has
arrived at a final determination with respect to the permit
applicant’s use of her property, and that that determination is
one which will allow a court to determine whether a
regulatory taking has taken place. This circuit has also
recognized a “futility exception,” which is in substance
similar to Palazzolo’s rule, whereby a plaintiff need not seek

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
23
a variance from a regulation where it would be an “idle and
futile act”; the exception only applies where a landowner has
“submitted at least one meaningful application for a
variance.” Bannum, Inc. v. City of Louisville, 958 F.2d 1354,
1363 (6th Cir. 1992) (internal citations and quotation marks
omitted); see also Seguin v. City of Sterling Heights, 968 F.2d
584, 587-88 (6th Cir. 1992) (refusing to decide whether
futility exists).
DLX argues that its application for a permit providing less
than 250 feet of vertical cover would have been futile, and
points to testimony elicited during the administrative hearing
from the Cabinet reviewer, Larry Peterson (“Peterson”).
Kentucky responds that Peterson’s testimony actually reveals
that the officer might have been willing to approve less
vertical cover, if DLX had submitted additional data
supporting such a move. It seems at first blush that Kentucky
has the better of this argument — DLX’s futility argument is
based on a mischaracterization of Peterson’s testimony, and
examining that testimony reveals that he would have been
receptive to a permit application stipulating less vertical cover
accompanied by additional data:
Q. So it is fair to say, isn’t it, that if your concern was
connection of the pressure dome fractures to the
maximum stress relief fractures that no permit less
than 250 feet would have been acceptable?
. . .
A. Unless they demonstrated through some other data,
which they were given opportunity to do, that the
fractures weren’t that deep or my concerns weren’t
that justified, yes.
Q. But based on the data that you did have?
A. Yes.
Q. We have been all through that. The data that you
did have, including the data that said most of the
water moved within 100 feet of the surface, based on
the data that you did have, it is fair to say that you
24 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
11Although we wo uld no rmally decline to decide the constitutional
question — whethe r Eleventh Amendme nt immunity protects a state
against a federal takings claim in a federal court — in favor of the factual
question, see, e.g., Adams v. City of Battle Creek, 250 F.3d 980 , 986 (6th
Cir. 2001) (citing Ashwand er v. Tenne ssee V alley A utho rity, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring)), we believe the procedural
posture of this case mandates that, rather than subject the parties to further
litigation on an ultimately irrelevant issue, we affirm the district court on
this ground.
would not have approved a permit that left only a
240-foot vertical cover, isn’t it?
A. Yes.
J.A. at 359 (Tr. of Admin. Hr’g). In its reply brief, DLX
argues that no previous case requires a plaintiff to submit
scientific surveys before finality will be found, and asserts
that DLX could have proven no set of scientific facts that
would have convinced the decisionmaker to allow DLX’s
permit.
Because resolution of this question requires factual inquiry,
and the question is one on which the district court did not
pass, we decline to resolve this factual question on appeal.
Assuming all of DLX’s allegations in its federal complaint to
be true, namely, “The actions of the Commonwealth rendered
more than one million tons of high quality coal unmineable,”
J.A. at 7 (Compl. ¶ 14), jurisdiction exists; to deny
jursidiction based on a factual attack seems inappropriate
without further proceedings below. We therefore choose to
rely on Eleventh Amendment immunity in affirming the
district court.11

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
25
12There is no dispute that each defendant — Kentucky, the Cab inet,
and Secretary B ickford — is “the state” for the purposes of determining
their susceptibility to suit.
13“Eleventh Amendm ent immunity is an issue of jurisdiction, but the
issue is no longer classified as simply a question of subject matter
jurisdiction.” Ernst v. Roberts, No. 02-2287, ___ F.3d ___, 2004 WL
1792631, *3 n.4 (6th Cir. Aug. 12, 20 04). Therefore, a motion under
Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction may not be
procedurally correct, but all that is required to properly raise this
“affirmative defense to jurisdiction” is a motion citing to “the Eleventh
Amendment itself.” Id. at *3, *15.
F. Eleventh Amendment Immunity
Finally, Kentucky12 argues that it is immune from § 1983
suit under the Eleventh Amendment13 as 42 U.S.C. § 1983
does not abrogate its immunity. See Quern v. Jordan, 440
U.S. 332, 338-41 (1979) (reaffirming Edelman v. Jordan, 415
U.S. 651 (1974)). This is something of a mischaracterization
of the applicable law; “[t]he barrier [is] not . . . Eleventh
Amendment immunity . . . . The stopper [is] that § 1983
creates no remedy against a State.” Arizonans for Official
English v. Arizona, 520 U.S. 43, 69 (1997). Treating DLX’s
claim as a self-executing reverse condemnation claim,
however, we conclude that the Eleventh Amendment’s grant
of immunity protects Kentucky from that claim as well. The
Supreme Court has explicitly stated that just compensation
“is, like ordinary money damages, a compensatory remedy
. . . [and therefore] legal relief,” and moreover, that a federal-
court suit alleging a taking seeks “not just compensation per
se but rather damages for the unconstitutional denial of such
compensation,” City of Monterey v. Del Monte Dunes, 526
U.S. 687, 710-11 (1999); therefore, the Ex Parte Young
exception is inapplicable. In response, DLX points to
commentators who have suggested the question remains
26 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
14DLX also argues that our decision in Arnett v. Mye rs, 281 F.3d 552
(6th C ir. 200 2), is binding precedent that the Eleventh Amendment is no
bar to a Fifth Amendment claim against a state in federal court, and that
if the Eleventh Amendment does not prevent the Supreme Court from
hearing such cases as Palazzolo v. Rhode Island, 533 U.S. 606, 619-26
(2001), on certiorari fro m state courts, it do es not preve nt a suit in the
district court against a state. Both of these arguments lack merit. In
Arnett, the plaintiffs clearly only sought declaratory and injunctive relief,
thus allowing the case under the Ex Parte Young exception. As for
DLX’s second contention, “It was long ago settled that a writ of error to
review the final judgment of a state court, even when a State is a formal
party [defendant] and is successful in the inferior court, is not a suit within
the meaning of the Amendment.” Mc Kesson C orp. v. Div. of Alcoho lic
Beverages & Tobacco, 496 U.S. 18, 27 (1990) (quoting General Oil Co.
v. Crain, 209 U.S. 211 , 233 (1908) (Harlan, J., co ncurring)) (alteration in
original).
open,14 relying on dicta in two Supreme Court takings cases,
First English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 314 (1987), and City of Monterey, 526
U.S. at 714 (1999) (Kennedy, J., plurality opinion) (“Even if
the sovereign immunity rationale retains its vitality in cases
where [the Fifth] Amendment is applicable, cf. First English
. . .”). See, e.g. RICHARD H. FALLON ET AL., HART &
WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM [hereinafter HART & WECHSLER], at 379 & n.32 (4th
ed. 1996), Vicki C. Jackson, The Supreme Court, the Eleventh
Amendment, and State Sovereign Immunity, 98 YALE L.J. 1,
115 & nn.453-54 (1988); Thomas W. Merrill, The Landscape
of Constitutional Property, 86 VA. L. REV. 885, 981 & n.351
(2000); Carlos Manuel Vásquez, What is Eleventh
Amendment Immunity?, 106 YALE L.J. 1683, 1709 & n.119-
21 (1997).
But closer examination of each of these authorities reveals
that they are concerned not with abrogating the states’
Eleventh Amendment immunity in federal court, but with
noting that the Fifth Amendment’s requirement of just
compensation forces the states to provide a judicial remedy in

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
27
their own courts. “[T]he Constitution mandates the
availability of effective remedies for ‘takings’ and for the
coercive collection of taxes, and accordingly requires courts
to provide those remedies, ‘the sovereign immunity States
traditionally enjoy in their own courts notwithstanding.’”
HART & WECHSLER, supra, at 379 (quoting Reich v. Collins,
513 U.S. 106, 110 (1994)). Reich explicitly holds that the
requirement of a remedy for unconstitutional taxes does not
trump “the sovereign immunity States enjoy in federal court,
under the Eleventh Amendment.” 523 U.S. at 110. First
English makes clear that the Fifth Amendment Takings
Clause is a self-executing remedy, notwithstanding sovereign
immunity. See 482 U.S. at 316 n.9. Therefore, had DLX
brought a federal claim with its state claim in state court, the
Kentucky courts would have had to hear that federal claim,
and likely could not have required exhaustion as a
prerequisite to hearing the federal claim, see Felder v. Casey,
487 U.S 131, 146-47 (1988), but this court is powerless to
hear it. See John G. & Marie Stella Kenedy Mem’l Found. v.
Mauro, 21 F.3d 667, 674 (5th Cir. 1994) (Eleventh
Amendment bars Fifth Amendment inverse condemnation
claim brought in federal district court); Robinson v. Ga. Dep’t
of Transp., 966 F.2d 637 (11th Cir. 1992) (same); Broughton
Lumber Co. v. Columbia River Gorge Comm’n, 975 F.2d 616,
618-20 (9th Cir. 1992) (same); Citadel Corp. v. Puerto Rico
Highway Auth., 695 F.2d 31, 33 n.4 (1st Cir. 1982) (same);
Garrett v. Illinois, 612 F.2d 1038, 1040-41 (7th Cir. 1980)
(takings claim filed in federal court against the state barred by
Eleventh Amendment).
Although Alden v. Maine, 527 U.S. 706 (1999), might seem
to foreclose the requirement that states be susceptible to suit
in their own courts on takings claims, a close reading of Alden
reveals that it would present no bar to such a claim. In Alden,
the Court held only “that the powers delegated to Congress
under Article I of the United States Constitution do not
include the power to subject nonconsenting States to private
suits for damages in state courts.” Id. at 712. The Alden
28 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
Court specifically preserved Reich’s promise of a state-court
remedy, noting, “The obligation arises from the Constitution
itself; Reich does not speak to the power of Congress to
subject States to suits in their own courts.” Id. at 740. Thus,
where the Constitution requires a particular remedy, such as
through the Due Process Clause for the tax monies at issue in
Reich, or through the Takings Clause as indicated in First
English, the state is required to provide that remedy in its own
courts, notwithstanding sovereign immunity. See SDDS, Inc.
v. South Dakota, 650 N.W.2d 1, 8-9 (S.D. 2002) (“South
Dakota’s sovereign immunity is not a bar to SDDS’s Fifth
Amendment takings claim.”); Boise Cascade Corp. v.
Oregon, 991 P.2d 563, 565-69 (Or. 1999) (relying on First
English in holding that “at least some constitutional claims
are actionable against a state, even without a waiver or
congressional abrogation of sovereign immunity, due to the
nature of the constitutional provision involved”). But see
Manning v. Mining & Minerals Div. of the Energy, Minerals,
& Natural Res. Dep’t, 2004-NMCA-52, ¶ 4-¶ 12 (Ct. App.
2004) (rejecting Boise Cascade), cert. granted, No. 28,500,
2004-NMCERT-005 (May 11, 2004).
III. CONCLUSION
Because Kentucky enjoys sovereign immunity in the
federal courts from DLX’s federal takings claim, the district
court was correct to dismiss the DLX’s complaint for want of
jurisdiction. The judgment of the district court is therefore
AFFIRMED.

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
29
1The Supreme Co urt’s lack of jurisdiction to review the Kentucky
Supreme Court’s judgment in this case as a result of DLX’s failure to
raise its federal claims in state court is not fatal to the application of
Rooker-Feldman. See Feldman, 460 U.S. at 484 n.16 (“B y failing to raise
his claims in state court a plaintiff may forfeit his right to obtain review
of the state-court decisio n in any fed eral co urt.”).
____________________
CONCURRENCE
____________________
BALDOCK, Circuit Judge, concurring. I respectfully
concur in the Court’s judgment of dismissal only. Although
the Court’s Eleventh Amendment analysis appears sound, in
my opinion we need not reach the Eleventh Amendment
question. Rather, the Kentucky Supreme Court’s decision
implicates the Rooker-Feldman doctrine thereby precluding
the necessity of resolving the myriad of issues raised in this
case. In the alternative, because the “England-reservation”
doctrine is inapplicable, res judicata bars DLX’s federal
takings claim. I will discuss each issue in turn.
I.
Under the Rooker-Feldman doctrine, lower federal courts
do not have jurisdiction to review state court decisions; only
the United States Supreme Court has jurisdiction to correct
state court judgments. See Rooker v. Fidelity Trust Co., 263
U.S. 413, 415-16 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 476 (1983).1 The Rooker-
Feldman doctrine deprives lower federal courts of jurisdiction
to engage in appellate review of state court decisions or to
adjudicate federal claims that are “inextricably intertwined”
with a state court judgment. See Peterson Novelties, Inc. v.
City of Berkley, 305 F.3d 386, 390 (6th Cir. 2002). A federal
claim is “inextricably intertwined” with a state court
judgment when the federal claim succeeds only to the extent
30 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
that the state court wrongly decided the issues before it.
See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987)
(Marshall, J., concurring); Anderson v. Charter Township of
Ypsilanti, 266 F.3d 487, 492 (6th Cir. 2001).
In this case, DLX’s federal takings claim is “inextricably
intertwined” with the Kentucky state court judgment.
Specifically, the Kentucky Supreme Court dismissed DLX’s
state takings claim for want of jurisdiction based on its
application of federal law; namely, the standards set forth in
Williamson County Reg’l Planning Comm’n v. Hamilton
Bank, 473 U.S. 172 (1985). See Commonwealth v. DLX, Inc.,
42 S.W.3d 624, 627 (Ky. 2001). DLX then filed a federal
takings claim in district court. To ensure DLX’s takings
claim was ripe for review, the district court, like the Kentucky
Supreme Court, applied the Supreme Court’s two-prong
ripeness test from Williamson. Under Williamson, a Fifth
Amendment takings claim is not ripe for review until (1) the
government entity charged with implementing the regulations
has reached a final decision inflicting an actual, concrete
injury, and (2) if a State provides an adequate procedure for
seeking just compensation, the property owner has used the
procedure and been denied just compensation. 473 U.S. at
193-95. The ripeness test is conjunctive: both prongs must be
satisfied.
Accordingly, the district court first sought to determine
whether a final decision inflicting an actual, concrete injury
existed under prong one. The district court indicated,
however, a close reading of the Kentucky Supreme Court
opinion revealed that the court had already decided
Williamson prong one and determined no final decision, and
thus no injury existed. See DLX, Inc., 42 S.W.3d at 626-27.
In my opinion, the district court properly read the Kentucky
Supreme Court’s opinion. In DLX, Inc., the Kentucky
Supreme Court dismissed DLX’s state takings claim for lack
of subject matter jurisdiction. See id. at 627. The court
reasoned the state agency had not yet arrived at a final,

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
31
definitive position inflicting an injury because DLX failed to
exhaust its administrative remedies. See id. The Kentucky
Supreme Court relied upon the Williamson decision to reach
its conclusion that no final decision inflicting an injury
existed. See id. at 626-27. The Kentucky Supreme Court
explained that “until a statute has been applied, there can be
no unconstitutional application . . .[and] it is the
administrative action which determines the extent, if any, of
the constitutional injury.” Id. at 626. Immediately thereafter,
the court noted “[t]he United States Supreme Court addressed
this same issue in [Williamson].” Id. (emphasis added). The
court then quoted Williamson’s first prong at length:
Our reluctance to examine taking claims until such a
final decision has been made is compelled by the very
nature of the inquiry required by the Just Compensation
Clause. Although the question of what constitutes a
taking for purposes of the Fifth Amendment has proved
to be a problem of considerable difficulty, . . . the Court
consistently has indicated that among the factors of
particular significance in the inquiry are the economic
impact of the challenged action and the extent to which
it interferes with reasonable investment-backed
expectations . . . . Those factors simply cannot be
evaluated until the administrative agency has arrived at
a final, definitive position regarding how it will apply the
regulations at issue to the particular land in question.
Id. (quoting Williamson, 473 U.S. at 190-91) (emphasis
added) (internal quotation and citation omitted).
The district court, after considering the Kentucky Supreme
Court’s analysis, reasonably concluded Rooker-
Feldman applied. The district court reasoned it would have
to review the Kentucky Supreme Court’s conclusion that
DLX did not have a final decision, and hold the opposite, in
order to satisfy Williamson’s first prong. While the Kentucky
Supreme Court appears to have commingled two distinct
32 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
2The Court in this case correctly notes that the Kentucky Supreme
Court based its holding on the failure to exhaust ad ministrative remedies,
see DLX, Inc., 42 S.W .3d at 627, but that exhaustion is “not a compo nent
of a federal takings claim.” See Co urt’s Op. at 8. That the Kentucky
Supreme Court may have misapplied Williamson, however, is of no
momen t. The purpose of Rooker-Feldman is to preclude lower federal
courts from telling state co urts they co nduc ted an incorrect analysis or
reached the wrong conc lusion. See Gottfried v. Medica l Plann ing Servs.,
142 F.3d 326, 33 0 (6th Cir. 1998) (noting only the Supreme Co urt has
jurisdiction to correct state court judgm ents); see also 28 U.S.C. § 1257.
doctrines (i.e., exhaustion and finality), see Williamson, 473
U.S. at 192, I nevertheless agree with the district court’s
conclusion that the Kentucky Supreme Court’s decision
implicates the Rooker-Feldman doctrine because the
Kentucky Supreme Court decided Williamson prong one and
indicated it lacked jurisdiction over DLX’s takings claim
based on the lack of a final decision.2 See DLX, Inc., 42
S.W.3d at 626-27. The district court thus would have had to
reapply Williamson and conclude the Kentucky Supreme
Court “got it wrong,” see Anderson, 266 F.3d at 492, to
proceed any further in its analysis. In other words, under
Williamson’s first prong, the district court was required to
determine whether a final decision imposing an injury
existed. The Kentucky Supreme Court, however, had already
determined no such decision or injury had occurred. Thus,
the only way DLX could assert a successful federal takings
claim was for the district court to rule contrary to the
Kentucky Supreme Court. Rooker-Feldman bars such federal
review of state court judgments.
The Court in this case attempts to avoid Rooker-Feldman
by distinguishing between DLX’s state and federal takings
claims. See Court’s Op. at 8. The Court’s analysis does not
persuade me, however, because the claims are
indistinguishable. See Anderson, 266 F.3d at 495 (holding
Rooker-Feldman barred jurisdiction because the requirements
of the state takings clause were indistinguishable from the

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
33
requirements of the Fifth Amendment Takings Clause). As
in Anderson, little, if any, substantive difference exists
between the requirements of the Kentucky Takings Clause,
see Ky. Const. § 242, and the Fifth Amendment Takings
Clause in this case. In fact, the Kentucky Supreme Court has
relied upon Supreme Court precedent interpreting the Fifth
Amendment Takings Clause to determine what constitutes a
taking under Kentucky law. See Commonwealth v. Stearns
Coal and Lumber Co., 678 S.W.2d 378, 381 (Ky. 1984).
Moreover, the Court in this case notes a state takings claim
and federal takings claim are nearly identical for purposes of
claim preclusion law. See Court’s Op. at 13 n.5; see also id.
at 14 (noting state constitutional takings claim “overlap
substantially” with federal takings claim). The Court also
concedes Rooker-Feldman would likely apply if the Kentucky
Supreme Court had reached the merits of DLX’s state takings
claim. See id. at 9 n.2. In the end, the crux of this case is
DLX’s allegation of one taking and one injury requiring just
compensation. The Kentucky Supreme Court already
determined, under Williamson prong one, no final decision
existed, and thus, no taking or injury had occurred. For the
district court to hold otherwise would violate Rooker-
Feldman.
In sum, the case, in my opinion, should be dismissed under
the Rooker-Feldman doctrine. The purpose of the Rooker-
Feldman doctrine is to avoid duplicative appeals and
proscribe lower federal courts review of state court decisions.
Here, DLX availed itself of state procedures and cannot now
take a second bite at the judicial apple in federal court.
II.
Aside from the Rooker-Feldman issue, I disagree with the
Court’s res judicata analysis and its application of the
34 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
3Because the Court refers to bo th claim and issue preclusion as “res
judicata,” I do the same.
“England reservation” doctrine. See Court’s Op. at 11.3 As
the Court correctly notes, DLX did not raise its federal
takings claim in state court. Instead, DLX “reserved” its
federal claim in its state complaint for later adjudication in
federal court. See id. at 4. Res judicata normally bars such
procedural tactics. See Donovan v. Thames, 105 F.3d 291,
295 (6th Cir. 1997) (“Under Kentucky law, res judicata, or
claim preclusion, may be used to preclude entire claims that
were brought or should have been brought in a prior action.”)
(emphasis added) (internal citation omitted). The Court,
however, concludes DLX’s purported reservation was proper
under the principles established in England v. Louisiana State
Bd. of Med. Exam’r, 375 U.S. 411 (1964). I disagree because
the Court expands the England-reservation doctrine beyond
its intended scope.
In England, the plaintiffs initially sought to enjoin
application of a state statute in federal court. The district
court abstained to allow the state courts the opportunity to
interpret the statute. See England, 375 U.S. at 413. The
plaintiffs thereafter commenced state proceedings, but were
unsuccessful. Upon returning to federal court, the plaintiffs
revived their constitutional claims; however, the defendant
argued the claims were precluded. The Supreme Court held
preclusion did not bar the plaintiffs’ federal claims because a
party remitted to state court by an abstention order has the
right to return to federal court. See id. at 415. Accordingly,
under the England-reservation doctrine, a plaintiff who finds
himself in state court involuntarily due to a district court’s
abstention order may, in certain circumstances, reserve his
federal issues for later adjudication in federal court. See id.
at 421-22.

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
35
The England-reservation doctrine thus applies only in a
case where a party reserves federal questions in state court
following federal court abstention. See id. at 421; see also
Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 4471.1 at 247 (2002) (noting “[t]he core of
the England-reservation rule remains unscathed. A party who
clearly reserves federal questions following ‘Pullman’
abstention . . . can return to federal court for decision of the
federal issues, free of preclusion.”). Moreover, in order for
the England-reservation doctrine to apply, the federal action
must be brought first “affording the federal court the
opportunity to decide whether to abstain. A plaintiff who
elects to go to state court first is likely to be precluded from
a second federal action, even if an express reservation is
attempted.” Wright & Miller, supra § 4471.1 at 250. In Allen
v. McCurry, 449 U.S. 90, 101-02 n.17 (1980), the Supreme
Court explained why an England-reservation is inapplicable
to cases first filed in state court rather than federal court:
The holding in England depended entirely on this
Court’s view of the purpose of abstention in such a case:
Where a plaintiff properly invokes federal-court
jurisdiction in the first instance on a federal claim, the
federal court has a duty to accept that jurisdiction.
Abstention may serve only to postpone, rather than to
abdicate, jurisdiction, since its purpose is to determine
whether resolution of the federal question is even
necessary, or to obviate the risk of a federal court’s
erroneous construction of state law.
(emphasis added). The procedural posture of this case differs
significantly from England. Here, DLX did not initially file
its takings claim in federal court, but first filed its claim in
state court. Therefore, a federal court never had the
opportunity to abstain and thus, the England-reservation
doctrine is inapplicable.
36 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
The Court unnecessarily attempts to expand the England-
reservation doctrine beyond the scope of federal abstention in
this case. According to the Court, “given Williamson
County’s ripeness requirements, DLX could not have chosen
to file a federal-court action first; therefore, the interaction of
Williamson County’s ripeness requirements and the doctrine
of claim preclusion could possibly operate to keep every
regulatory-takings claimant out of federal court.” Court’s Op.
at 14. The Court then applies the England-reservation
doctrine and, to avoid claim preclusion, declares “[t]he weight
of circuit-level authority is therefore clearly in favor of
allowing DLX’s England-style reservation.” Id. at 18.
To begin, the Court’s conclusion that “every regulatory
takings claimant” would be excluded from federal court is not
entirely accurate. Takings claimants who properly raise their
federal claims in state proceedings may seek review in the
United States Supreme Court if dissatisfied with the results
they obtain from state court. See 28 U.S.C. § 1257. Next,
courts have generally rejected use of the England-reservation
doctrine in the takings context and many courts have declined
to create an exception rendering res judicata and collateral
estoppel inapplicable in Fifth Amendment takings cases.
See Wright & Miller, supra § 4471.1 at 253 (citing cases); see
also Santini v. Connecticut Hazardous Waste Mgmt. Serv.,
342 F.3d 118, 128 (2d Cir. 2003) (citing cases). Discussing
this issue, Wright & Miller reasons:
The question whether filing a state action first waives the
opportunity to reserve federal questions for federal
adjudication is tested by situations in which rules other
than abstention doctrine require a plaintiff to go first to
state court. A clear illustration is provided by the
[Williamson] rule that a regulatory taking claim is not
ripe until the plaintiff has exhausted available state
judicial compensation remedies. Attempted reservation
of federal issues has been rejected, or at least frowned
upon, perhaps because the purpose of this ripeness

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
37
doctrine is to provide state courts an opportunity to
supervise state regulatory practices.
See supra § 4471.1 at 253; see also Wilkinson v. Pitkin
County Bd., 142 F.3d 1319, 1325 n.4 (10th Cir. 1998) (noting
concern that the ripeness requirement “may, in actuality,
almost always result in preclusion of federal claims,
regardless of whether reservation is permitted”); Palomar
Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362,
364 (9th Cir. 1993) (explaining that mere fact that Williamson
requires takings claimants to first file in state court “does not
prevent the doctrine of res judicata from barring subsequent
federal action”); Peduto v. City of N. Wildwood, 878 F.2d
725, 729 (3d Cir. 1989) (same); Griffin v. Rhode Island, 760
F.2d 359, 360 n.1 (1st Cir. 1985) (explaining England-
reservation was inapplicable and that “[s]ection 1983 does not
override state preclusion law by allowing plaintiffs to first
proceed to judgment in state courts and then turn to federal
courts for adjudication of federal claims.”). In Allen, 449
U.S. at 104, the Supreme Court stated simply: “There is, in
short, no reason to believe that Congress [through § 1983]
intended to provide a person claiming a federal right an
unrestricted opportunity to relitigate an issue already decided
in state court simply because the issue arose in a state
proceeding in which he would rather not have been engaged
in at all.”
Perhaps most importantly, allowing a claimant to reserve its
federal takings claim in state proceedings undermines the
very purpose of Williamson’s ripeness requirements. The
ripeness requirements for federal takings claims stems from
both Article III and the Fifth Amendment. See Williamson,
473 U.S. at 186-87, 190-91; Arnett v. Myers, 281 F.3d 552,
562 (6th Cir. 2002). The ripeness requirements are of
constitutional dimension because they assist in the
determination of whether an injury has occurred for purposes
of Article III’s case or controversy requirement. See Arnett,
281 F.3d at 562. Further, the Fifth Amendment is a self-
38 DLX, Inc. v. Commonwealth
of Kentucky, et al.
No. 03-5528
executing remedy in state courts and state compensation
procedures are constitutionally required. See First English
Evangelical Lutheran Church v. County of Los Angeles, 482
U.S. 304, 316 n.9 (1987). Based upon these antecedent
precepts, Williamson’s ripeness test compels that a state court
make a federal constitutional ruling because the very purpose
of state compensation procedures is to address the federal
constitutional question. Allowing the reservation of the
federal question in state court would undermine the role, as
the Supreme Court has described, of state courts in
adjudicating federal takings claims. As one commentator
explained:
Some federal courts have suggested that a property
owner can reserve the right to litigate federal issues in a
federal forum under the doctrine of England v. Louisiana
State Board of Medical Examiners, but this ought not to
work. The England doctrine exists to further the purpose
of federal abstention. . . . The doctrine, however, does not
apply in the context of the Fifth Amendment which, as
construed by the Supreme Court, requires state courts to
rule on federal constitutional grounds.
Thomas E. Roberts, Fifth Amendment Taking Claims in
Federal Court, 24 Urb. Law. 479, 480 (1992).
In sum, the Court erred in applying the England-reservation
doctrine in this case. A plaintiff, in my view, simply cannot
make an England-reservation in non-abstention cases.
Instead, res judicata applies to bar DLX’s federal claim. We
generally presume state courts are capable of adjudicating
federal claims along with state claims. See Migra v. Warren
City School Dist. Bd. of Educ., 465 U.S. 75, 85-86 (1984);
see also Donovan, 105 F.3d at 295. Moreover, the Supreme
Court has clearly explained that states are required to
adjudicate takings claims because, if a state provides just

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No. 03-5528 DLX, Inc. v. Commonwealth
of Kentucky, et al.
39
4 One final note: After concluding Rooker-Feldman and res judicata
do not ap ply, the C ourt engages in a Williamson ripeness analysis but does
not resolve Williamson prong one. See Court’s Op. at 22. I do not
believe we have the luxury of sidestepping the ripeness issue. As the
Court notes, rip eness is a justiciability doctrine partially rooted in Article
III’s case or controv ersy requirement. See id. at 19 n.8. Consequently,
the doctrine raises threshold jurisdictional issues that may not be assumed.
See Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998).
Further, whethe r the Court can dismiss a potentially unripe cla im under
the Eleventh Amendment raises a difficult issue. The ripeness doctrine
and the Eleventh Amendment both have jurisdictional bases; however,
ripeness canno t be waived. See Florida Ass’n of Rehab. Facilities, Inc.
v. Florida Dep’t of Health and Rehab. Serv., 225 F.3d 1208, 1227 n.14
(11th Cir. 2000 ). Thus, we should decide whether a claim is ripe before
addressing the Eleventh Amendment. See id. (noting [a]lthough [courts
have] described the issue of Eleventh Amendme nt immunity as itself one
of subject matter jurisdiction, “mootness- like standing and ripeness -
raises an even more basic question of jurisdiction that cannot be waived
and goes to the very heart of the ‘case and controversy’ requirement of
Article III” that m ust be d ecided first.) (emphasis added) (internal
citations omitted ).
compensation, resort to a federal forum may be avoided.
See Williamson, 473 U.S. at 194.4
Based on the foregoing, I respectfully concur only in the
Court’s judgment of dismissal.

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