No.

____

In the Supreme Court of the United States

____________________

T HE GYM 24/7 FITNESS, LLC,

Petitioner,
v.
S TATE OF M ICHIGAN ,
Respondent.
____________________
On Petition For Writ Of Certiorari To
The Michigan Court Of Appeals
____________________

PETITION FOR WRIT OF CERTIORARI

____________________

PHILIP L. ELLISON JONATHAN M. HOUGHTON

Outside Legal Counsel PLC Counsel of Record
530 W. Saginaw St. DEBORAH J. LA FETRA
Hemlock, MI 48626 Pacific Legal Foundation
3100 Clarendon Boulevard,
Suite 1000
Arlington, VA 22201
(202) 888-6881
[email protected]

Counsel for Petitioner

 i

QUESTIONS PRESENTED
In this Fifth Amendment regulatory takings case,
Michigan’s Executive Order took dominion and
control of the use of Petitioner’s commercial property.
It barred all customers from the premises for six
months, which erased the property’s economic use and
destroyed Petitioner’s reasonable investment-backed
expectations to benefit the general public. However,
Michigan courts dismissed Petitioner’s case at the
pleadings stage, generating three disparate opinions,
with two different outcomes, and three conflicting
interpretations of Penn Central Transp. Co. v. City of
New York, 438 U.S. 104 (1978). The result
demonstrates Penn Central’s inability to protect
fundamental property rights and to provide a clear,
consistent, and uniform determination of “how far is
too far.” There is also tension in this Court’s decisions,
and those below, as to whether the element of time
should be a determinant of takings liability.
The questions presented are:
1. Whether Penn Cent. Transp. Co. v. City of New
York, 438 U.S. 104 (1978), should be clarified or
overruled?
2. Whether a taking occurs upon the government
asserting control over a property right, as the Court
held in Cedar Point Nursery v. Hassid, 594 U.S. 139
(2021), or instead, upon the government asserting
control over a property right for some undefined
period of time, as the Court held in Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302
(2002)?
 ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT
Petitioner The Gym 24/7 Fitness, LLC, was the
plaintiff-appellant in all proceedings below.
Petitioner is a limited liability corporation organized
under the laws of the State of Michigan. It has no
parent corporation and issues no shares.
Respondent the State of Michigan was the
defendant-appellee in all proceedings below.
STATEMENT OF RELATED CASES
These proceedings are directly related to the above-
captioned case under Rule 14.1(b)(iii):
The Gym 24/7 Fitness, LLC v. State, No. 164557
(Mich. Aug. 30, 2024).
The Gym 24/7 Fitness, LLC v. State, No. 355148
(Mich. Ct. App. Mar. 31, 2022).
The Gym 24/7 Fitness, LLC v. State, No. 20-
000132-MM (Mich. Ct. Cl. Sept. 24, 2020).
 iii

TABLE OF CONTENTS
Petition for a Writ of Certiorari ................................. 1
Opinions Below ........................................................... 5
Jurisdiction ................................................................. 5
Constitutional Provision
and Order at Issue .................................................. 5
Statement of the Case ................................................ 6
A. Michigan’s Shut-Down Order and the
Resulting Confiscation of Petitioner’s
Property ......................................................... 6
B. Proceedings Below ......................................... 7
Reasons for Granting the Petition ........................... 10
I. Certiorari Is Needed to Bring Uniformity and
Clarity to Regulatory Takings Cases ............ 10
A. Penn Central’s persistent difficulties ......... 10
B. This case offers an excellent vehicle to
provide clarity, consistency, and uniformity
to the regulatory takings test ..................... 20
C. A viable solution based on the traditional
adjudication of property rights ................... 23
II. Certiorari Should Be Granted to Address the
Tension Between Cedar Point and
Tahoe-Sierra ................................................... 28
Conclusion ................................................................. 33
Appendix
Opinion of the Michigan State Court of Appeals,
March 31, 2022 .................................................... 1a
Order of the Michigan State Supreme Court, denying
application for leave to appeal,
August 31, 2024 ................................................. 38a
 iv

Opinion and Order of the Michigan State Court of

Claims, Ingham County,
September 24, 2020 ........................................... 59a
Michigan Executive Order 2020-09,
March 16, 2020 .................................................. 68a
Verified Class Action Complaint, filed in Michigan
State Court of Claims, Ingham County,
July 8, 2020........................................................ 73a
 v

TABLE OF AUTHORITIES
Page(s)
Cases
74 Pinehurst LLC v. New York,
59 F.4th 557 (2d Cir. 2023) ............................... 18
Allied Credit Corp. v. Davis (In re Davis),
989 F.2d 208 (6th Cir. 1993) ............................. 26
Armstrong v. United States,
364 U.S. 40 (1960) ............................................... 1
Baxter v. Brand,
36 Ky. 296 (1838) ............................................... 25
Blackburn v. Dare Cnty.,
58 F.4th 807 (4th Cir. 2023) .................. 12, 16, 19
Block v. Hirsh,
256 U.S. 135 (1921) .......................................... 31
Bordelon v. Baldwin Cnty.,
No. CV 20-0057-C, 2022 WL 16543269
(S.D. Ala. Oct. 28, 2022), aff’d No. 22-
13958, 2024 WL 302382
(11th Cir. Jan. 26, 2024) ................................... 14
Brakke v. Iowa Dep’t of Natural Resources,
897 N.W.2d 522 (Iowa 2017) ............................. 32
Brewer v. State,
341 P.3d 1107 (Alaska 2014) ............................. 18
Bridge Aina Le‘a, LLC v. Hawaii Land Use
Comm’n, 141 S. Ct. 731 (2021) .................. 4, 7, 19
CCA Assocs. v. United States,
667 F.3d 1239 (Fed. Cir. 2011) .......................... 14
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021) ............... 4, 10, 15, 17, 29, 30
Cienega Gardens v. United States,
331 F.3d 1319 (Fed. Cir. 2003) ........ 13, 16, 18, 24
 vi

City of Belleville v. St. Clair Cnty. Turnpike

Co., 84 N.E. 1049 (Ill. 1908) .............................. 28
Cmty. Housing Improvement Program v.
City of New York,
492 F. Supp. 3d 33 (E.D.N.Y. 2020) .................. 14
Colony Cove Properties, LLC v. City of
Carson, 888 F.3d 445 (9th Cir. 2018)................ 14
Committee for Reasonable Regulation of
Lake Tahoe v. Tahoe Regional Planning
Agency, 311 F. Supp. 2d 972
(D. Nev. 2004) .................................................... 14
Covington & L. Turnp. Road Co. v.
Sandford, 164 U.S. 578 (1896) .......................... 26
Dep’t of Agriculture & Consumer Services v.
Mid-Florida Growers, Inc.,
521 So.2d 101 (Fla. 1988) .................................. 18
Dist. Intown Properties Ltd. P’ship v. D.C.,
198 F.3d 874 (D.C. Cir. 1999) ........................... 11
Duquesne Light Co. v. Barasch,
488 U.S. 299 (1989) ........................................... 26
E. Enterprises v. Apfel,
524 U.S. 498 (1998) ..................................... 15, 19
Eaton v. Bos., C. & M.R.R.,
51 N.H. 504 (1872) ............................................. 25
Englewood Hospital & Med. Ctr. v.
New Jersey,
478 N.J. Super. 626 (App. Div. 2024) ............... 16
First Eng. Evangelical Lutheran Church of
Glendale v. Los Angeles Cnty.,
482 U.S. 304 (1987) ........................................... 19
Fisher v. Bountiful City,
21 Utah 29, 59 P. 520 (1899) ............................. 31
 vii

Fla. Rock Indus., Inc. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) ................ 13, 16, 24
Fla. Rock Indus., Inc. v. United States,
45 Fed. Cl. 21 (1999).................................... 14, 24
FLCT, Ltd. v. City of Frisco,
493 S.W.3d 238 (Tex. App. 2016) ...................... 14
Formanek v. United States,
26 Cl. Ct. 332 (1992) .......................................... 14
Goldblatt v. Town of Hempstead,
369 U.S. 590 (1962) ........................................... 27
Greater Chautauqua Fed. Credit Union v.
Marks, No. 1:22-CV-2753 (MKV), 2023
WL 2744499 (S.D.N.Y. Mar. 31, 2023) ............. 14
Green v. Biddle,
21 U.S. 1 (1823) ................................................. 24
Heights Apartments, LLC v. Walz,
30 F.4th 720 (8th Cir. 2022) .............................. 13
Heinlen v. Martin,
53 Cal. 321 (1879) .............................................. 25
Kafka v. Montana Dep’t of Fish, Wildlife
and Parks,
348 Mont. 80 (2008) ........................................... 18
Keystone Bituminous Coal Ass’n v.
DeBenedictis,
480 U.S. 470 (1987) ............................................. 9
Kimball Laundry Co. v. United States,
338 U.S. 1 (1949) ............................................... 31
Kirby Forest Indus., Inc. v. United States,
467 U.S. 1 (1984) ............................................... 24
Knick v. Twp. of Scott,
588 U.S. 180 (2019) ........................................... 30
Koontz v. St. Johns River Water Mgmt.
Dist., 570 U.S. 595 (2013).................................. 19
 viii

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) ............................... 15, 17, 18
Loper Bright Enterprises v. Raimondo,
144 S. Ct. 2244 (2024) ......................................... 3
Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982) ................................ 17
Los Angeles Gas & Elec. Corp. v. R.R.
Comm’n of Cal.,
289 U.S. 287 (1933) ........................................... 26
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) ......................... 9, 15, 29, 30
Lynch v. Household Fin. Corp.,
405 U.S. 538 (1972) ........................................... 10
MacDonald, Sommer & Frates v. Yolo Cnty.,
477 U.S. 340 (1986) ........................................... 24
Maine Educ. Ass’n Benefits Trust v. Cioppa,
695 F.3d 145 (1st Cir. 2012) .............................. 15
Marbury v. Madison,
5 U.S. 137 (1803) ................................................. 3
McNulty v. Town of Indialantic,
727 F. Supp. 604 (M.D. Fla 1989) ..................... 16
Monongahela Nav. Co. v. United States,
148 U.S. 312 (1893) ........................................... 12
Murr v. Wisconsin,
582 U.S. 383 (2017) ........................................... 17
Nekrilov v. City of Jersey City,
45 F.4th 662 (3d Cir. 2022) ......................... 12, 19
Nemmers v. City of Dubuque,
764 F.2d 502 (8th Cir. 1985) ............................. 24
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ........................................... 30
Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104 (1978) ........... 2, 9, 11, 15, 16, 23, 24
 ix

Pennell v. City of San Jose,

485 U.S. 1 (1988) ............................................... 24
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) ........................... 1, 10, 19, 27
Philip Morris, Inc. v. Reilly,
312 F.3d 24 (1st Cir. 2002) ................................ 15
Rancho de Calistoga v. City of Calistoga,
800 F.3d 1083 (9th Cir. 2015) ........................... 16
San Diego Gas & Elec. Co. v. City of San
Diego, 450 U.S. 621 (1981) .......................... 30, 31
Sansotta v. Town of Nags Head,
97 F. Supp. 3d 713 (E.D.N.C. 2014) .................. 18
Stackpole v. Healy,
16 Mass. 33 (1819) ............................................. 25
Stevens v. Worrill,
73 S.E. 366 (Ga. 1911) ....................................... 26
Stone v. Farmers’ Loan & Tr. Co.,
116 U.S. 307 (1886) ........................................... 26
Missouri ex rel. Sw. Bell Tel. Co. v. Pub.
Serv. Comm’n of Missouri,
262 U.S. 276 (1923) ........................................... 26
Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Reg’l Plan. Agency,
535 U.S. 302 (2002) ........................... 4, 15, 29, 30
Tenoco Oil Co., Inc. v. Dep’t of Consumer
Affairs, 876 F.2d 1013 (1st Cir. 1989)............... 32
The Gym 24/7 Fitness, L.L.C. v. State,
No. 20-000132-MM, 2020 WL 6050543
(Mich. Ct. Cl. Sept. 24, 2020) .............................. 5
The Gym 24/7 Fitness, LLC v. State,
10 N.W.3d 443 (Mich. 2024) ................................ 5
The Gym 24/7 Fitness, LLC v. State,
341 Mich. App. 238 (2022)................................... 5
 x

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ........................................... 10
Verizon Commc’ns, Inc. v. F.C.C.,
535 U.S. 467 (2002) ........................................... 26
Wensmann Realty, Inc. v. City of Eagan,
734 N.W.2d 623 (Minn. 2007) ........................... 18
Wheeler v. City of Pleasant Grove,
833 F.2d 267 (11th Cir. 1987) ........................... 24
Woodruff v. Neal,
28 Conn. 165 (1859) ........................................... 25
Yancey v. United States,
915 F.2d 1534 (Fed. Cir. 1990) .......................... 13
Constitutional Provision
U.S. Const. amend. V................................................ 5
Statute
28 U.S.C. § 1257(a) ................................................... 5
Rule
MCR 7.305(H)(1) ....................................................... 9
Other Authorities
Barros, D. Benjamin, At Last, Some Clarity:
The Potential Long-Term Impact of
Lingle v. Chevron and the Separation of
Takings and Substantive Due Process,
69 Alb. L. Rev. 343 (2006) ................................. 17
Berger, Michael M., Whither Regulatory
Takings?, 51 Urb. Law. 171 (2021) ................... 11
Coke, Edward, 1 Institutes, ch. 1, § 1
(1st Am. ed. 1812) .............................................. 24
Cooley, Thomas M., A Treatise on the
Constitutional Limitations Which Rest
upon the Legislative Power of the States
of the American Union (8th ed. 1927) ............... 25
 xi

Cordes, Mark W., Takings Jurisprudence as

Three-Tiered Review, 20 J. Nat.
Resources & Envtl. L. 1 (2006) ......................... 15
Eagle, Steven J., The Four-Factor Penn
Central Regulatory Takings Test, 118
Penn. St. L. Rev. 601 (2014) .............................. 11
Eagle, Steven J., Penn Central and Its
Reluctant Muftis, 66 Baylor L. Rev. 1
(2014) ................................................................. 16
Echeverria, John D., Making Sense of Penn
Central, 39 Envtl. L. Rep. News &
Analysis 10471 (2009) ....................................... 16
Epstein, Richard A., From Penn Central to
Lingle: The Long Backwards Road, 40 J.
Marshall L. Rev. 593 (2007) .............................. 14
Groen, John M., Takings, Original
Meaning, and Applying Property Law
Principles to Fix, 39 Touro L. Rev. 973
(2024) ................................................................. 25
Kanner, Gideon, Hunting the Snark, Not the
Quark: Has the U.S. Supreme Court
Been Competent in Its Effort to
Formulate Coherent Regulatory Takings
Law?, 30 Urb. Law. 307 (1998) ......................... 15
Meltz, Robert, Takings Law Today: A
Primer for the Perplexed, 34 Ecology L.Q.
307 (2007) .......................................................... 15
Merrill, Thomas W., The Character of the
Governmental Action, 36 Vt. L. Rev. 649
(2012) ................................................................... 2
Oakes, James L., “Property Rights” in
Constitutional Analysis Today, 56 Wash.
L. Rev. 583 (1981) .............................................. 11
 xii

Pomeroy, Adam R., Penn Central After 35

Years: A Three Part Balancing Test or A
One Strike Rule?, 22 Fed. Circuit B.J.
677 (2013) .......................................................... 12
Radford, R.S. & Wake, Luke A., Deciphering
and Extrapolating: Searching for Sense
in Penn Central, 38 Ecology L.Q. 731
(2011) ................................................................... 2
Scalia, Antonin, The Rule of Law As a Law
of Rules, 56 U. Chi. L. Rev. 1175 (1989) ........... 28
Thomas, Robert H., Evaluating Emergency
Takings: Flattening the Economic Curve,
29 Wm. & Mary Bill Rts. J. 1145 (2021)........... 17
Wade, William W., Sources of Regulatory
Takings Economic Confusion Subsequent
to Penn Central, 41 Envtl. L. Rep. News
& Analysis 10936 (2011) ................................... 24
Wade, William W., Temporary Takings,
Tahoe Sierra, and the Denominator
Problem, 43 Envtl. L. Rep. News &
Analysis 10189 (2013) ....................................... 32
Whitman, Dale A., Deconstructing Lingle:
Implications for Takings Doctrine, 40 J.
Marshall L. Rev. 573 (2007) ................................ 2
 1

PETITION FOR A WRIT OF CERTIORARI

It is undisputed that Petitioner’s property was
pressed into public service. By Executive Order, the
Respondent State commandeered its use and then
forcibly closed Petitioner’s gym and idled all of the
property within it to benefit the general public health.
The State also claimed the exclusive right to
determine if, when, and how, it would someday allow
Petitioner to use its private property.
The State did not compel everyone to shoulder this
burden. But for those, like Petitioner, that were
forced to cease the use of their property by govern-
ment decree, the impact was severe: it could earn no
income and Petitioner’s reasonable investment-
backed expectations were destroyed.
The very purpose of the Fifth Amendment’s
Takings Clause is to protect owners from “bear[ing]
public burdens which, in all fairness and justice
should be borne by the public as a whole.” Armstrong
v. United States, 364 U.S. 40, 49 (1960). However,
when the court below dismissed Petitioner’s regula-
tory takings lawsuit at the pleadings stage, it left
Petitioner without a remedy for the clear confiscation
of its fundamental property rights.
The Michigan Supreme Court denied review over
the strong dissent of two Justices, whose opinion
revealed the larger and deeper flaws in Penn Central.
The challenge in regulatory takings cases is to
determine “how far is too far?” Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393, 415 (1922). For decades, the
answer to that question has been buried within Penn
Central’s ad hoc, multi-factor test, particularly its
three indeterminate primary factors—economic
impact, interference with reasonable investment-
 2

backed expectations, and the regulation’s character.

Penn Cent., 438 U.S. at 124-25.
The enduring problem is that no one—courts
included—know what these factors really mean,
collectively or individually. Nor how to apply them,
nor how, or even if, to weigh them. At this point, it is
axiomatic that Penn Central is simply not capable of
predictably, consistently, and uniformly determining
“how far is too far?” The economic impact factor is “a
dilemma” with no guidelines; the investment-backed
expectations factor is “problematic” and “circular” and
incapable of being a basis for determination; character
is “the most mysterious of all;” and altogether “each of
the factors [] has created great difficulty for the lower
courts.” Thomas W. Merrill, The Character of the
Governmental Action, 36 Vt. L. Rev. 649, 651 (2012);
Dale A. Whitman, Deconstructing Lingle: Implications
for Takings Doctrine, 40 J. Marshall L. Rev. 573, 576-
78 (2007) (Penn Central is “a disaster in terms of
clarity and predictability. None of the test’s three
prongs can be calculated by landowners or govern-
ment officials with any certainty[.]”); R.S. Radford &
Luke A. Wake, Deciphering and Extrapolating:
Searching for Sense in Penn Central, 38 Ecology L.Q.
731, 732 (2011) (the Penn Central test is an
“unworkable, if not incomprehensible, standard”).
It is no small problem. If courts do not understand
how Penn Central works, or what it means, or how to
apply its factors, the result is conflict and chaos, not
justice. Conflicting decisions amongst the lower
courts undermine stare decisis, leaving both property
owners and government regulators uncertain of their
rights and responsibilities. The lack of uniformity
also diminishes the equal treatment of litigants under
law and functionally extinguishes the meaning of a
 3

property owner’s fundamental right to economic use.

See Loper Bright Enterprises v. Raimondo, 144 S. Ct.
2244, 2270-71 (2024) (“A rule of law that is so wholly
‘in the eye of the beholder’ [and] invites different
results in like cases” is “arbitrary,” “impressionistic,”
and “malleable” and it “cannot stand as an everyday
test[.]”).
In addition, the lack of concrete guidance both
incentivizes questionable litigation outside of the
reasonable boundaries of the Takings Clause’s protec-
tion and, at the same time, virtually guarantees that
the Penn Central test will be systemically under-
protective. Simply put, constitutional rights cannot
be protected if the courts do not know how to protect
them. Marbury v. Madison, 5 U.S. 137, 178 (1803)
(determining whether government action “be in
opposition to the constitution” is “the very essence of
judicial duty”).
The case below reflects the inevitable conflict. The
three opinions generated by the Michigan Court of
Claims, the Michigan Court of Appeals, and the two-
Justice dissent of the Michigan Supreme Court,
respectively, applied the same facts to the same law
and yet agreed on nothing. There were two different
results and three different evaluations. Collectively,
these courts disagreed on: (a) the definitions of
different Penn Central factors; (b) what facts were
relevant for the court to consider; (c) which factors had
primacy; (d) how to balance them; and (e) the role of
the court in evaluating them at the pleadings stage.
It is thus a clear window into what Justice Thomas
called a “standardless standard,” resulting in “starkly
different outcomes based on the application of the
same law. . . . A know-it-when-you-see-it test is no
 4

good if one court sees it and another does not.” Bridge

Aina Le‘a, LLC v. Hawaii Land Use Comm’n, 141 S.
Ct. 731, 731-32 (2021) (Thomas, J., dissenting from
denial of certiorari). With Penn Central as the
muddled polestar, the boundaries of the Fifth Amend-
ment’s protection are a mystery. This Court should
therefore grant certiorari to determine whether Penn
Central should be clarified or overruled in order to
provide a clear, consistent, and uniform rule of law for
determining “how far is too far.” 1
This case also asks the Court to clarify the tension
in its decisions about whether time is an element of
property rights. In Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302
(2002), this Court held that a taking occurs not when
all economic use is taken, but upon the deprivation of
the right plus the passage of some undefined measure
of time. That holding sits uneasily with Cedar Point
Nursery v. Hassid, 594 U.S. 139 (2021), wherein this
Court held that time is not a component of property
rights. Id. at 153. Once a property right has been
taken, it has been taken, and time is relevant only to
the calculation of just compensation. Here, in accord
with Tahoe-Sierra, but contrary to Cedar Point, the
court below determined time (i.e., the temporary
nature of the regulation) to be a material factor in the
dismissal of Petitioner’s categorical takings claim and
its Penn Central claim. How courts address tempor-
ary takings is a significant constitutional issue that
can be resolved only by this Court.

1 A Petition for Certiorari is filed concurrently in Mount

Clemens Recreational Bowl, Inc. v. Hertel. The Michigan courts’
decisions in that case explicitly followed those of the courts here,
and it raises a substantially similar Penn Central question.
 5

Certiorari should be granted.

OPINIONS BELOW
The decision of the Michigan Court of Claims (App.
59a-67a) is unpublished but available at The Gym
24/7 Fitness, L.L.C. v. State, No. 20-000132-MM,
2020 WL 6050543 (Mich. Ct. Cl. Sept. 24, 2020). The
Michigan Court of Appeals decision (App. 1a-37a) is
published at The Gym 24/7 Fitness, LLC v. State, 341
Mich. App. 238 (2022). The decision of the Michigan
Supreme Court denying review (App. 38a-58a) is
published at The Gym 24/7 Fitness, LLC v. State, 10
N.W.3d 443 (Mich. 2024).
JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C.
§ 1257(a). The Michigan Court of Appeals entered
Judgment on March 31, 2022. The Michigan Supreme
Court denied review on August 30, 2024. Petitioner
obtained an extension to file this Petition to and
including January 16, 2025. See No. 24A418.
CONSTITUTIONAL PROVISION
AND ORDER AT ISSUE
The Fifth Amendment to the U.S. Constitution
provides in relevant part, “nor shall private property
be taken for public use, without just compensation.”
Michigan Executive Order (EO) 2020-09 (Mar. 16,
2020) provides in relevant part: 2
To mitigate the spread of COVID-19, protect the
public health, and provide essential protections
to vulnerable Michiganders, it is reasonable and

2 The order is reprinted in full at App. 68a-72a.

 6

necessary to impose limited and temporary

restrictions on the use of places of public
accommodation.
Acting under the Michigan Constitution of 1963
and Michigan law, I order the following:
Beginning as soon as possible but no later than
March 16, 2020 at 3:00 pm, and continuing until
March 30, 2020 at 11:59 pm, the following places
of public accommodation are closed to ingress,
egress, use, and occupancy by members of the
public:
(f) Gymnasiums, fitness centers, recreation
centers, indoor sports facilities, indoor exercise
facilities, exercise studios, and spas. 3
STATEMENT OF THE CASE
A. Michigan’s Shut-Down Order and the
Resulting Confiscation of Petitioner’s
Property
Petitioner The Gym 24/7 Fitness, LLC owns an
indoor gym and fitness center located in Alma,
Michigan. App. 74a. It is owned and operated by
Randy Clark, a personal trainer for over 40 years, and
his wife Yvette Franco-Clark, who has a degree in
health, wellness, and nutrition, and who teaches
classes at a local college. In 2019, they achieved their
forever dream of opening a gym.
Their dream was cut short. A year later, on
March 10, 2020, Michigan Governor Gretchen

3 Order 2020-09 was extended by subsequent orders and

ultimately terminated on September 3, 2020. Michigan Execu-
tive Order 2020-176.
 7

Whitmer declared a state of emergency in response to

COVID-19 (App. 68a) and thereafter issued Executive
Order 2020-09. App. 68a-72a. It decreed that all
gymnasiums (and selected other businesses) must be
“closed to ingress, egress, use, and occupancy by
members of the public.” App. 69a-70a (emphasis
added). Originally intended to expire after two weeks,
the State repeatedly extended the regulation. See
Executive Orders 2020-20, 2020-43, 2020-69, 2020-
110, and 2020-160. The shutdown order finally ended
on September 8, 2020. Executive Order 2020-176.
During the State’s control over the use of
Petitioner’s property, the Gym could earn no income
while its monthly expenses and obligations continued
unabated. App. 75a-76a, 79a. Now, over four years
later, Gym 24/7—like so many businesses shuttered
by order of the State—has yet to fully recover.
B. Proceedings Below
On July 8, 2020, Petitioner filed a putative class
action suit in Michigan state court. App. 73a-81a. It
did not challenge the Governor’s authority to issue the
Executive Order, nor whether it benefited public
health and safety. App. 76a. But at the same time,
because the Executive Order caused the Gym’s
economic devastation, Petitioner sought recompense
in the form of just compensation for the unconstitu-
tional taking of its private property under the Fifth
and Fourteenth Amendments and Article X, Section 2,
of the Michigan Constitution. App. 78a-81a. It
alleged both a categorical taking of property and a
Penn Central taking. Ibid.
The State immediately filed a motion for summary
disposition based on the Complaint alone. The State
argued that the public health emergency entitled it to
 8

total deference such that Petitioner’s takings claims

were not actionable. App. 66a. However, the trial
court held otherwise because “the state’s ability to act
pursuant to the police power, even during a pandemic,
is not absolute.” App. 65a.
The trial court found that the State failed to
produce any evidence to justify its actions. Specif-
ically, it “produced no evidence in support of its initial
decision to close fitness facilities, nor has it provided
evidence that informed its decision to continue to
prohibit use of the facilities, even in a reduced or
limited capacity.” App. 66a. The State also failed to
produce any evidence to support “why gyms and
fitness centers were forced to remain closed after
other indoor public gathering places were allowed to
re-open.” Ibid. The trial court did not specifically
address the Penn Central factors or the temporary
nature of the regulation, allowing the claims to
proceed to discovery. App. 67a.
The Michigan Court of Appeals reversed and
dismissed Petitioner’s regulatory takings claim as a
matter of law. It agreed that there was no specific
evidence supporting the closure of gyms and fitness
centers. App. 11a. Regardless, the court turned to the
merits of the takings claims because the public use
was undisputed.
Under Penn Central, the court held that “[t]he first
two factors—economic impact of the EOs and their
interference with reasonable investment-backed
expectations—weigh in favor of the Gym because its
business was in fact shuttered under the EOs[.]” App.
32a-33a. Nonetheless, the court “[did] not give those
factors all that much weight” because the regulation
was “short lived.” App. 33a.
 9

With regard to character, the court gave no

consideration to the severity of the burden placed on
Petitioner, the State’s lack of evidentiary support, or
and whether the property owner was singled out.
App. 33a-36a. Instead, the court shortcut the
evaluation, holding that the “compelling” aim of the
Executive Order was to stop the spread of COVID and
the public risk of illness and death that came with it.
App. 33a. Thus, character “strongly favors the State,
or perhaps actually demands that we find no taking.”
Ibid. The court dismissed the Penn Central claim at
the pleadings stage, holding that “[i]n light of []
precedent, we cannot conclude that the Gym has a
viable takings case under the Penn Central balancing
test.” App. 35a (discussing Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1029 (1992); Penn
Central, 438 U.S. at 125; Keystone Bituminous Coal
Ass’n v. DeBenedictis, 480 U.S. 470, 491-92 (1987)).
The Court of Appeals also dismissed the categorical
takings claim because the shutdown order was only
temporary. App. 32a. Relying heavily on Tahoe-
Sierra, the court held that there could be no taking as
a matter of law because “any lost value relative to the
real and personal property was likely recovered as
soon as the temporary prohibition was lifted.” Ibid.
Petitioner sought leave to appeal to the Michigan
Supreme Court. The parties submitted briefs and
conducted oral argument on the application, after
which the court could have chosen to render a decision
on the merits. See MCR 7.305(H)(1). However, the
court instead denied leave to appeal, with a lengthy
dissent from two Justices largely addressing the
difficulties of adjudicating Penn Central claims. App.
38a-67a. It is discussed in greater detail, infra.
 10

REASONS FOR GRANTING THE PETITION

I. Certiorari Is Needed to Bring Uniformity
and Clarity to Regulatory Takings Cases
A. Penn Central’s persistent difficulties
Property ownership comes with certain funda-
mental and well-established rights: the right to
exclude, the right to use property for your economic
benefit, and the right to alienate your property as you
wish. United States v. Gen. Motors Corp., 323 U.S.
373, 378 (1945). This Court protects property rights
vigilantly because they are “indispensable to the
promotion of individual freedom” and empower people
“to shape and to plan their own destiny in a world
where governments are always eager to do so for
them.” Cedar Point, 594 U.S. at 147; Lynch v. House-
hold Fin. Corp., 405 U.S. 538, 544, 552 (1972)
(property rights are “an essential pre-condition to the
realization of other basic civil rights and liberties”).
However, for one of these property rights, its
safeguarding has proven difficult. For over a century,
this Court has recognized that the regulatory taking
of a property owner’s fundamental right to use is just
as much a taking as the exercise of eminent domain.
Mahon, 260 U.S. at 415. Yet determining when a
regulation has crossed the threshold and gone “too
far” has been a nebulous exercise. Ibid. (“The general
rule, at least, is that, while property may be regulated
to a certain extent, if regulation goes too far, it will be
recognized as a taking.”).
Courts try to answer that question with the Penn
Central test. It is an “ad hoc test,” based on all
relevant facts and circumstances, with three factors
warranting “particular significance:” (1) “the econo-
 11

mic impact of the regulation on the claimant;” (2) “the

extent to which the regulation has interfered with
distinct investment-backed expectations;” and (3) “the
character of the governmental action.” Penn Cent.,
438 U.S. at 124-25.
But still, what counts as “too far?” Unfortunately,
the test lacks clear boundaries, guidance, or explana-
tion. Neither courts nor litigants know what any of
those factors are supposed to mean or how to evaluate
them. Steven J. Eagle, The Four-Factor Penn Central
Regulatory Takings Test, 118 Penn. St. L. Rev. 601,
602 (2014) (it is “a compilation of moving parts that
are neither individually coherent nor collectively
compatible”). Nor do courts understand how to weigh
the three factors against “other relevant facts and
circumstances.”
Thus, Penn Central vaguely tells courts some of
what to look at, but not how to determine how far is
too far. It is a “nearly vacuous test.” Dist. Intown
Properties Ltd. P’ship v. D.C., 198 F.3d 874, 886 (D.C.
Cir. 1999) (Williams, J., concurring). Its detractors
emerged quickly and the drumbeat of criticism has
continued steadily ever since. See, e.g., James L.
Oakes, “Property Rights” in Constitutional Analysis
Today, 56 Wash. L. Rev. 583, 613 (1981); Michael M.
Berger, Whither Regulatory Takings?, 51 Urb. Law.
171, 201 (2021).
The passage of time has not provided clarity.
Because each of its three factors remain a definitional
mystery, as is the method to apply them, it is not
hyperbole to suppose that if the same set of facts were
presented to ten different courts, the likely output
would be contrasting decisions with ten different
reasons as to why. Consequently, the constitutional
 12

boundaries are no more than guesswork because this

Court’s regulatory takings jurisprudence has been
unable to “prevent[]the public from loading upon one
individual more than his just share of the burdens of
government.” Monongahela Nav. Co. v. United States,
148 U.S. 312, 325 (1893).
For example, lower courts remain conflicted about
whether to consider all the Penn Central factors or
just some of them; and how to weigh the considered
factors against each other. See, e.g., Blackburn v.
Dare Cnty., 58 F.4th 807, 815 (4th Cir. 2023) (“Just as
there is no clear guidance on what exactly the Penn
Central factors encompass, there is no hard and fast
way to weigh them.”); Nekrilov v. City of Jersey City,
45 F.4th 662, 683 (3d Cir. 2022) (Bibas, J., concurring)
(“Applying Penn Central can be hard [because] we do
not know how much weight to give each factor. Courts
often knock out regulatory-takings claims for lacking
one factor. . . . This one-strike-you’re-out practice is
especially troubling because Penn Central overlaps
with per se regulatory takings claims.”).
In 2013, an empirical study of 491 federal cases
found that only 22% of appellate cases and 13% of trial
cases considered and balanced all three factors.
Adam R. Pomeroy, Penn Central After 35 Years: A
Three Part Balancing Test or A One Strike Rule?, 22
Fed. Circuit B.J. 677, 690 (2013). The study also
showed that no two courts apply Penn Central in the
same way. There is no uniformity within trial courts
of the same circuit, within appellate courts of the same
circuit, as between trial courts and appellate courts in
the same circuit, or as between these groups across
circuit boundaries. Id. at 689-90.
 13

The gross disparity in answering the predicate

questions of how many of the Penn Central factors
should be considered and how, or even whether, the
court should weigh them, reflects that the Penn
Central test is incapable of predictably determining
when a regulation of use is contrary to the Fifth
Amendment’s Takings Clause. When courts cannot
agree on even the framework of the test to be applied,
then stare decisis and the equal treatment of litigants
becomes an impossibility. Courts are thus resigned to
casting about in the dark, “with little direct case law
guidance,” Fla. Rock Indus., Inc. v. United States, 18
F.3d 1560, 1570 (Fed. Cir. 1994), hoping only that
“[o]ver time, . . . enough cases will be decided with
sufficient care and clarity that the line will more
clearly emerge.” Id. at 1571. Nearly five decades after
Penn Central, the lower courts are still waiting.
Digging down into the specific factors also yields no
consensus. With regard to economic impact, how
much is enough to weigh this factor in the property
owner’s favor? There is a substantial conflict in how
the lower courts answer that question.
Some courts do not require any particular percen-
tage of economic loss. See, e.g., Heights Apartments,
LLC v. Walz, 30 F.4th 720, 734 (8th Cir. 2022) (in the
context of a COVID-related regulation); Cienega Gar-
dens v. United States, 331 F.3d 1319, 1340 (Fed. Cir.
2003) (the threshold is “serious financial loss”);
Yancey v. United States, 915 F.2d 1534, 1541 (Fed.
Cir. 1990) (there is no “automatic numerical barrier
preventing compensation, as a matter of law, in cases
involving a smaller percentage diminution in value”).
Others, however, treat the percentage loss as a
material—and sometimes dispositive—factor, yet
 14

they conflict as to what that percentage loss should be.

See, e.g., Colony Cove Properties, LLC v. City of
Carson, 888 F.3d 445, 451 (9th Cir. 2018) (a 92.5%
diminution in value is not enough to constitute a
taking); Formanek v. United States, 26 Cl. Ct. 332, 340
(1992) (87% loss in value satisfies the economic impact
factor); Florida Rock Indus., Inc. v. United States, 45
Fed. Cl. 21, 36 (1999) (73% loss is sufficient); Com-
mittee for Reasonable Regulation of Lake Tahoe v.
Tahoe Regional Planning Agency, 311 F. Supp. 2d 972,
994 (D. Nev. 2004) (50% loss in value “stated an
economic impact”); FLCT, Ltd. v. City of Frisco, 493
S.W.3d 238, 273 (Tex. App. 2016) (46% decline
satisfied the “economic impact” factor); Cmty. Housing
Improvement Program v. City of New York, 492 F.
Supp. 3d 33, 49-50 (E.D.N.Y. 2020) (20%-40% loss is
sufficient to state a claim). And at least one court held
that the economic impact factor is satisfied only if the
owner can show a taking of all economic use. Greater
Chautauqua Fed. Credit Union v. Marks, No. 1:22-CV-
2753 (MKV), 2023 WL 2744499, at *12 (S.D.N.Y.
Mar. 31, 2023).
Nor do courts agree as to whether economic impact
measures lost profit or lost property value. Compare
Bordelon v. Baldwin Cnty., No. CV 20-0057-C, 2022
WL 16543269 (S.D. Ala. Oct. 28, 2022) (finding a
taking where the owner was deprived of $600,000 in
lost rent, which equated to approximately 18% of
property value), aff’d No. 22-13958, 2024 WL 302382
(11th Cir. Jan. 26, 2024); with CCA Assocs. v. United
States, 667 F.3d 1239, 1246 (Fed. Cir. 2011) ($700,000
loss in net income, representing 18% of property
value, was not enough to support a taking).
In short, “[n]o one knows how much diminution in
value is required.” Richard A. Epstein, From Penn
 15

Central to Lingle: The Long Backwards Road, 40 J.

Marshall L. Rev. 593, 604 (2007); Robert Meltz,
Takings Law Today: A Primer for the Perplexed, 34
Ecology L.Q. 307, 334 (2007) (noting that “the
Supreme Court has never given us definite numbers”
or “a specified percentage” or any “threshold”).
The second factor—investment-backed expecta-
tions—is equally undefined. Indeed, even this Court
alternatively describes the relevant expectations as
being either “reasonable,” see, e.g., Cedar Point, 594
U.S. at 148; Tahoe-Sierra, 535 U.S. at 342; E. Enter-
prises v. Apfel, 524 U.S. 498, 523-24 (1998), or
“distinct.” See, e.g., Penn Cent., 438 U.S. at 124;
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539
(2005); Lucas, 505 U.S. at 1019 n.8.
But regardless of nomenclature, no one knows
what the prototypical investment-backed expectation
is. Mark W. Cordes, Takings Jurisprudence as Three-
Tiered Review, 20 J. Nat. Resources & Envtl. L. 1, 35
(2006) (“courts and commentators have often puzzled
over what ‘interference with investments-backed
expectations’ means”); Gideon Kanner, Hunting the
Snark, Not the Quark: Has the U.S. Supreme Court
Been Competent in Its Effort to Formulate Coherent
Regulatory Takings Law?, 30 Urb. Law. 307, 337-38
(1998) (although the “reasonable expectations” consid-
eration often plays a critical role in Penn Central
analysis . . . “no one really knows what [it] . . . means”).
Lacking concrete guidance, “courts have struggled
to adequately define this term” and “beyond the
general landscape, there is a paucity of clear land-
marks that can be used to navigate the terrain” with
“many areas [] still uncharted.” Philip Morris, Inc. v.
Reilly, 312 F.3d 24, 36-37 (1st Cir. 2002); Maine Educ.
 16

Ass’n Benefits Trust v. Cioppa, 695 F.3d 145, 154 (1st

Cir. 2012) (“reasonable investment-backed expecta-
tions is a concept that can be difficult to define more
concretely”); Steven J. Eagle, Penn Central and Its
Reluctant Muftis, 66 Baylor L. Rev. 1, 48 (2014) (it is
“woefully unclear”).
Some courts focus on the owner’s investment in the
property after purchase. McNulty v. Town of India-
lantic, 727 F. Supp. 604, 611 (M.D. Fla 1989). Some
focus on whether the owner should have anticipated
specific, but then nonexistent, regulations, to be
enacted in the future. See Rancho de Calistoga v. City
of Calistoga, 800 F.3d 1083, 1091 (9th Cir. 2015);
Englewood Hospital & Med. Ctr. v. New Jersey, 478
N.J. Super. 626, 648 (App. Div. 2024) (property
owners’ expectations “must consider the laws in effect
at that time as well as those which may be adopted by
our Legislature”). Some attempt to discern what an
objective market participant would have expected.
Cienega Gardens, 331 F.3d at 1346. And others
loosely link reasonable investment-backed expecta-
tions to arbitrary and capricious government conduct.
Fla. Rock Indus., 18 F.3d at 1571.
Penn Central’s character prong is similarly
amorphous. Blackburn, 58 F.4th at 813 (“exactly
what this factor refers to is, admittedly, a little
fuzzy”); John D. Echeverria, Making Sense of Penn
Central, 39 Envtl. L. Rep. News & Analysis 10471,
10477 (2009) (“the definition of the term character is
a veritable mess” with nine different and often
conflicting definitions). Penn Central linked character
to an “interference” that “can be characterized as a
physical invasion by government.” 438 U.S. at 124.
But thereafter, the Court identified physical invasions
as a separate category of taking; one that is not
 17

dependent on individual facts and circumstances.

Cedar Point, 594 U.S. 139; Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 434 (1982).
Lingle discussed the character prong briefly,
positing examples such as “whether it amounts to a
physical invasion” or instead merely affects property
interests through “some public program adjusting the
benefits and burdens of economic life to promote the
common good.” 544 U.S. at 539. But the Court held
that the examination of the regulation’s means and
ends was irrelevant to takings claims because it
“reveals nothing about the magnitude or character of
the burden a particular regulation imposes upon
private property rights.” Id. at 542; Robert H.
Thomas, Evaluating Emergency Takings: Flattening
the Economic Curve, 29 Wm. & Mary Bill Rts. J. 1145,
1153 (2021) (“The character of the governmental
action does not mean the government’s reasons. It is
not a substitute for a due process or rational basis
test.”) (citation omitted); see also Murr v. Wisconsin,
582 U.S. 383, 414 (2017) (Roberts, C.J., dissenting)
(“The widespread benefits of a regulation will often
appear far weightier than the isolated losses suffered
by individuals.”). The Court offered no guidance on
how to evaluate a regulation’s character as it “adjusts
the benefits and burdens of economic life” without
some sort of “substantially advances” inquiry. That
is, the Court removed one methodological approach
and replaced it with nothing.
The result is jurisprudential turmoil. When
decoupled from physical invasions and the means and
the ends of the regulation, this factor becomes the
source of skepticism. D. Benjamin Barros, At Last,
Some Clarity: The Potential Long-Term Impact of
Lingle v. Chevron and the Separation of Takings and
 18

Substantive Due Process, 69 Alb. L. Rev. 343, 353

(2006) (“the analysis in Lingle illustrates why the
character of the government act generally should have
no role”).
Despite Lingle, many courts continue to focus on
the government’s reasons for the regulation. See 74
Pinehurst LLC v. New York, 59 F.4th 557, 568 (2d Cir.
2023); Brewer v. State, 341 P.3d 1107, 1109 (Alaska
2014). Others more sensibly shift their analysis from
the government’s perspective to that of the property
owner, focusing on whether the claimant was singled
out to bear a public burden. See Cienega Gardens, 331
F.3d at 1340; Kafka v. Montana Dep’t of Fish, Wildlife
and Parks, 348 Mont. 80, 107 (2008) (“The rejection of
the ‘substantially advances’ formula with respect to
the character of the governmental action prong was
simply meant to ensure that courts correctly quantify
the effect of the regulation in terms of actual property
rights and the magnitude of the infringement on those
rights.”); Dep’t of Agriculture & Consumer Services v.
Mid-Florida Growers, Inc., 521 So.2d 101, 103 (Fla.
1988) (the character of the governmental action asks
about the nature of the action and its effect, not its
intent). And some courts view character as related to
a reciprocity of advantage. Wensmann Realty, Inc. v.
City of Eagan, 734 N.W.2d 623, 640-41 (Minn. 2007)
(“character” prong favors property owner who bears a
“disproportionate” burden of a comprehensive regu-
lation); Sansotta v. Town of Nags Head, 97 F. Supp.
3d 713, 735 (E.D.N.C. 2014).
In sum, Penn Central cannot predictably and con-
sistently determine when regulatory impingements
on property rights have gone “too far” and violated the
Constitution’s prohibition of taking private property
for public use without payment of just compensation.
 19

Lower courts are searching for clarity. Blackburn, 58

F.4th at 813 (Penn Central “is a veritable mess. But
we must do our best.”) (citation omitted); Nekrilov, 45
F.4th at 683 (Bibas, J., concurring) (discussing the
“notoriously hard to apply” Penn Central test and
observing that “though I am bound by Supreme Court
precedent, I can still take up part of Justice Thomas’s
challenge” and suggest a replacement).
This Court is also keenly aware of Penn Central’s
problems. It should not further delay review of this
troubled area of constitutional law. See Bridge Aina
Le‘a, LLC, 141 S. Ct. at 732 (Thomas, J., dissenting
from denial of certiorari) (“Next year [2022] will mark
a century since Mahon, during which this Court for
the most part has refrained from providing definitive
rules. It is time to give more than just ‘some, but not
too specific, guidance.’”) (cleaned up); Koontz v. St.
Johns River Water Mgmt. Dist., 570 U.S. 595, 614
(2013) (characterizing Penn Central as an “already
difficult and uncertain rule”); E. Enterprises, 524 U.S.
at 540-41 (Kennedy, J., concurring in the judgment
and dissenting in part) (regulatory takings are “diffi-
cult to explain in theory and to implement in practice.
Cases attempting to decide when a regulation
becomes a taking are among the most litigated and
perplexing in current law”); First Eng. Evangelical
Lutheran Church of Glendale v. Los Angeles Cnty., 482
U.S. 304, 341 n.17 (1987) (Stevens, J., dissenting)
(regulatory takings jurisprudence is “open-ended and
standardless”).
 20

B. This case offers an excellent vehicle to

provide clarity, consistency, and
uniformity to the regulatory takings test
This case highlights the many problems of Penn
Central. But at the same time, it does not implicate
the reliance interests of more typical regulatory
takings claims, such as rent control. Consequently, it
presents a uniquely contained opportunity for this
Court to provide constitutional clarity.
The court below should not have dismissed
Petitioner’s regulatory takings claim as a matter of
law at the pleadings stage. The State prohibited the
use of Petitioner’s property, due to no fault of
Petitioner; a confiscatory action that stripped away
the economic use of the property and destroyed
Petitioner’s reasonable investment-backed expecta-
tions. It was the regulatory equivalent of a physical
invasion. Nor were all commercial (non-health care)
businesses subject to the same prohibitions of use.
Other commercial businesses, including retail, were
quickly permitted to use their property. See Executive
Orders 2020-92, 2020-96, and 2020-110. The
government also allowed casinos and certain bars to
reopen. Executive Order 2020-160. But Petitioner’s
property remained forcibly idled by the Respondent
without explanation. App. 66a.
The protection of fundamental property rights
remains out of reach. The problem with a hopelessly
indeterminate regulatory takings test is that mean-
ingful appellate review becomes an impossibility. The
two dissenting Justices from the Michigan Supreme
Court repeatedly discussed Penn Central’s lack of
guidance and direction, App. 48a, 49a, 51a, 58a, and
that these deficiencies have “left courts to struggle” in
 21

evaluating regulatory takings claims. App. 49a. They

found this lack of clarity to be so pronounced that
despite the dissent’s disagreement with the legal
determinations made by the Court of Appeals, “given
the lack of guidance from the Supreme Court on the
proper application of the Penn Central factors, it may
be unfair to fault the Court of Appeals for its cursory
application of the factors.” App. 50a. Consequently,
they opined that it was their judicial duty to provide
clearer and better guidance to the lower courts. App.
58a (“By denying leave we not only fail to provide
guidance to lower courts on how to analyze claims
under Penn Central, but we also damage the credi-
bility of the judiciary to serve as a bulwark of our
liberty and ensure that the government does not take
private property without just compensation[.]”).
The confusion is evident. Each Michigan opinion
had a conflicting view about how to assess the charac-
ter of the regulation. The trial court focused on the
specific, not the general. It gave no weight to the
State’s broad generalization that the Executive Order
was enacted to stop the spread of COVID. App. 66a-
67a. Instead, it denied the government’s motion and
moved the case into discovery due to the government’s
complete lack of evidence as to why Petitioner’s gym
was singled out for closure. Id.
Conversely, the Court of Appeals focused on the
general and discounted the specific. While it agreed
that no particular evidence supported closure, App.
11a, the State’s general statement that the regulation
was enacted to stop the spread of COVID and protect
the public health and safety weighed character in the
government’s favor to such a degree that the court
dismissed Petitioner’s case. App. 33a.
 22

For a third view, the Michigan Supreme Court

dissenters gave only limited consideration to either
the specific or the general public purpose. App. 54a-
55a. Instead, they viewed the regulation along a spec-
trum of infringement on property rights, with physical
takings at one end and regulations that equally
burdened all citizens on the other. App. 55a. The
shutdown order was “in the middle of this spectrum,”
and plainly burdened Petitioner, but the dissent could
go no further absent more evidence. Ibid.
Regarding the other Penn Central factors, the
dissent believed that the character prong “may” be
relevant, but that economic impact was the most
important factor. App. 49a. It also opined that it was
“questionable” for the Court of Appeals to weigh the
first two factors less than the third factor. App. 56a.
Conversely, the Court of Appeals held that character
was the most important factor and substantially
minimized the others. App. 32a-33a.
The dissent also was less definitive than the Court
of Appeals as to whether economic impact weighed in
Petitioner’s favor. Compare App. 52a-53a with App.
32a-33a. While both the dissent and the Court of
Appeals weighed reasonable investment-backed
expectations in Petitioner’s favor, the dissent did so as
a factual matter, App. 53a-54a, whereas the Court of
Appeals resolved it as a legal determination. App. 32a-
33a.
The vagueness of Penn Central also creates judicial
conflict in terms of what role the court should take,
how and when. In this case, the trial court and the
Michigan Supreme Court dissenters interpreted Penn
Central’s ad hoc test to mean that once the factors
were sufficiently pled, the case moved onward to
 23

discovery. App. 56a-58a, 67a. The Court of Appeals

viewed its initial role under Penn Central more
expansively, requiring it to weigh only the as-pled
facts and render a judgment as a matter of law. App.
32a-35a. With Penn Central silent as to all of these
important legal criteria, the lower courts are in need
of clarity. A rule of constitutional law that creates
materially disparate decisions based on the exact
same facts—differing not only in the final result but
in how the final result was achieved—is one that
strongly warrants this Court’s review.
C. A viable solution based on the traditional
adjudication of property rights
The absence of concrete guidelines erodes the rule
of law. No one knows what a regulatory taking
actually is, nor the scope of protection provided by the
Fifth Amendment’s Takings Clause. Conflicting legal
decisions are inevitable because Penn Central’s
factors cannot answer how far is too far in any way
that offers guidance to future disputes. This nullifies
the function of stare decisis and underprotects
property owners’ fundamental right to use. Courts,
property owners, and government regulators are left
adrift.
A takings test grounded upon the property owner’s
market-based, reasonable rate of return is one
solution to restoring the traditional understanding of
the scope of real property rights and remedying the
problems caused by Penn Central.
The reasonable rate of return played a substantial
role within Penn Central itself. 438 U.S. at 136 (“the
law does not interfere with what must be regarded as
Penn Central’s primary expectation concerning the
use of the parcel . . . not only to profit from the
 24

Terminal but also to obtain a reasonable return on its

investment”); id. at 136 n.13 (“if an owner files suit
and establishes that he is incapable of earning a
‘reasonable return’ on the site in its present state, he
can be afforded judicial relief”); id. at 149-50
(Rehnquist, J., dissenting) (“The Court has frequently
held that, even where a destruction of property rights
would not otherwise constitute a taking, the inability
of the owner to make a reasonable return on his
property requires compensation under the Fifth
Amendment.”); William W. Wade, Sources of Regula-
tory Takings Economic Confusion Subsequent to Penn
Central, 41 Envtl. L. Rep. News & Analysis 10936,
10942 (2011) (“Fundamentally, the Penn Central test
requires a showing that [distinct investment-backed
expectations] have been frustrated; i.e., the invest-
ment is not earning a reasonable or competitive
return on the investment.”).
This principle echoes throughout other cases of this
Court and in lower courts. Pennell v. City of San Jose,
485 U.S. 1, 21-22 (1988) (Scalia, J., concurring);
MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S.
340, 350 (1986); Kirby Forest Indus., Inc. v. United
States, 467 U.S. 1, 14 (1984); Cienega Gardens, 331
F.3d at 1341-43; Fla. Rock Indus., 45 Fed. Cl. at 39;
Wheeler v. City of Pleasant Grove, 833 F.2d 267, 271
(11th Cir. 1987); Nemmers v. City of Dubuque, 764
F.2d 502, 504-05 (8th Cir. 1985).
The rate of return is a measure of the fundamental
right to the profitable use of property. That right was
recognized by English law and made its way into the
early common law of the states. See 1 Edward Coke,
Institutes, ch. 1, § 1 (1st Am. ed. 1812) (“[F]or what is
the land but the profits thereof[?]”); Green v. Biddle,
21 U.S. 1, 74-75 (1823) (“The common law of England
 25

was, at that period, as it still is, the law of that State;

and we are informed by the highest authority, that a
right to land, by that law, includes . . . [the right] to
receive the issues and profits arising from it.”);
Heinlen v. Martin, 53 Cal. 321, 345 (1879) (a fee owner
is entitled to “enjoy the fruits of the land” and the
rental value therefrom); Woodruff v. Neal, 28 Conn.
165, 167 (1859) (The rights of property include “every
use and profit which can be derived from it[.]”); Baxter
v. Brand, 36 Ky. 296, 300 (1838) (the rightful owner of
the land was entitled to “the reasonable profits of the
land” starting from the vesting of title); Stackpole v.
Healy, 16 Mass. 33, 34 (1819) (the common law rights
of property owners include “every use to which the
land may be applied, and all the profits which may be
derived from it”); Thomas M. Cooley, A Treatise on the
Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union,
1160-61 (8th ed. 1927) (“any regulation which
deprives any person of the profitable use of his
property constitutes a taking…unless the invasion of
rights is so slight as to permit the regulation to be
justified under the police power.”).
The protection of this right reflects that “[t]he
framers of the constitution intended to protect rights
which are worth protecting; not mere empty titles, or
barren insignia of ownership, which are of no
substantial value,” including “all the essential ele-
ments of ownership which make property valuable.
Among these elements is, fundamentally, the right of
user.” Eaton v. Bos., C. & M.R.R., 51 N.H. 504, 512
(1872). See also John M. Groen, Takings, Original
Meaning, and Applying Property Law Principles to
Fix, 39 Touro L. Rev. 973, 986-89 (2024) (reviewing
sources including William Blackstone, James
 26

Madison, Founder and Justice James Wilson, and

Noah Webster). As a matter of history and tradition,
the rights to rents and profits are therefore part of the
possessory bundle of rights inextricably bound to the
property itself. Stevens v. Worrill, 73 S.E. 366, 367
(Ga. 1911); Allied Credit Corp. v. Davis (In re Davis),
989 F.2d 208, 212-13 (6th Cir. 1993).
This Court also has experience determining the
rate of return in takings cases pertaining to public
utilities. See, e.g., Verizon Commc’ns, Inc. v. F.C.C.,
535 U.S. 467, 481 (2002); Duquesne Light Co. v.
Barasch, 488 U.S. 299, 310 (1989); see Missouri ex rel.
Sw. Bell Tel. Co. v. Pub. Serv. Comm’n of Missouri,
262 U.S. 276, 287-91 (1923) (Brandeis, J., concurring).
While public utilities differ from free market
commercial enterprises, the Court’s ability to assess
when the deprivation of a reasonable rate of return is
confiscatory can help inform a revised regulatory
takings test. See, e.g., Stone v. Farmers’ Loan & Tr.
Co., 116 U.S. 307, 331 (1886) (“Under pretense of
regulating fares and freights, the state cannot require
a railroad corporation to carry persons or property
without reward; neither can it do that which in law
amounts to a taking of private property for public use
without just compensation[.]”); Covington & L. Turnp.
Road Co. v. Sandford, 164 U.S. 578, 594-95 (1896)
(Allowing property owners to “make their proofs” to
show confiscatory nature of regulation that “destroy[s]
the value of the property for all the purposes for which
it was acquired.”); Los Angeles Gas & Elec. Corp. v.
R.R. Comm’n of Cal., 289 U.S. 287, 305-06 (1933)
(“Just compensation is a fair return upon the reason-
able value of the property” and “judicial ascertain-
ment of value for the purpose of deciding whether
rates are confiscatory is not a matter of formulas, but
 27

there must be a reasonable judgment, having its basis

in a proper consideration of all relevant facts.”)
(cleaned up).
A reasonable rate of return test would answer the
question of “how far is too far” with clarity and
predictability. It is a known delineator but one that,
within the rate determination, allows for flexibility
and ad hoc determinations based upon market factors
and circumstances particular to the owner and the
regulation at issue. It identifies when a regulation, as
applied, has singled out a property owner to bear the
burden of public use. But at the same time, a test
grounded in the reasonable rate of return will
recognize that not every diminution in value arising
from a land use regulation gives rise to Fifth
Amendment liability. Goldblatt v. Town of
Hempstead, 369 U.S. 590, 592 (1962) (there is no
constitutional entitlement to the property’s most
beneficial use); Mahon, 260 U.S. at 413 (“government
hardly could go on if to some extent values incident to
property could not be diminished without paying for
every such change in the general law”).
The reasonable rate of return analysis is also
related to, but more precise than, Penn Central’s
economic impact and reasonable investment-backed
expectations factors. Thus, if it chose, the Court could
situate a rate-of-return analysis within Penn Central
and other regulatory takings cases.
Here, Michigan’s shutdown order forced Petitioner
to stop using its property for its intended commercial
purpose and instead use it as a protective shield for
public health. Obviously, “[t]he requirement that
compensation be made for public use imposes no
restrictions upon the power of the state to make
 28

reasonable regulations to protect life and secure the

safety of its people.” City of Belleville v. St. Clair Cnty.
Turnpike Co., 84 N.E. 1049, 1053 (Ill. 1908). However,
the failure to compensate the property owner cannot
be squared with the traditional understanding that
commercial property’s primary and defining use is
that of generating income.
Accordingly, this case presents an ideal oppor-
tunity for this Court to provide a clear, consistent, and
uniform rule of law for determining “how far is too
far.” See Antonin Scalia, The Rule of Law As a Law of
Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989) (The
adoption of a “totality of circumstances” test “is effec-
tively to conclude that uniformity is not a particularly
important objective[.] This last point suggests
another obvious advantage of establishing as soon as
possible a clear, general principle of decision:
predictability.”).
II. Certiorari Should Be Granted to Address
the Tension Between Cedar Point and
Tahoe-Sierra
When the State took dominion and control over the
use of Petitioner’s property, it also took the concom-
itant power to determine if, and when, the right to use
would be returned. After six months had passed, the
State gave this fundamental right back to Petitioner.
However, the court below determined liability not
based upon whether the property right was taken in
the first instance, but the duration of the State’s
dominion and control. That the forced deprivation of
the right to use was, ultimately, only temporary was
a material factor in the dismissal of both of the
Petitioner’s takings claims as a matter of law. But
 29

whether time should play a role at all remains an open

question.
This Court has issued two decisions that are at
odds with each other about whether the taking of
property rights, in any context, are defined by the
element of time: Tahoe-Sierra and Cedar Point.
In Tahoe-Sierra, the owners brought a facial Lucas
challenge to a temporary moratorium that prohibited
all use of the owner’s property. Tahoe-Sierra, 535 U.S.
302 (citing Lucas, 505 U.S. at 1019) (“[W]hen the
owner of real property has been called upon to
sacrifice all economically beneficial uses in the name
of the common good, that is, to leave his property
economically idle, he has suffered a taking.”). This
Court held that stripping all economic use from
property was not a categorical taking unless that
commandeering of property was also a permanent
one. Tahoe-Sierra, 535 U.S. at 332 (citing Restate-
ment of Property §§ 7-9 (1936)). Consequently, there
can never be a temporary categorical taking of use
because “the property will recover value as soon as the
prohibition is lifted.” Ibid. While non-categorical
claims remain actionable under Penn Central, the
Court declined to state how long this taking of
property must persist to be recognized as a Takings
clause violation. Id. at 341-42.
The Court reached a different conclusion in Cedar
Point. That case involved a regulation that granted
access rights to private property for up to 120 days per
year, for up to three hours per invasion. Cedar Point,
594 U.S. at 144. This Court held that the duration of
the physical taking was irrelevant to determining
liability. Id. at 153 (“a physical appropriation is a
taking whether it is permanent or temporary”).
 30

Rather, liability is fixed when the right is taken and

“the duration of an appropriation—just like the size of
an appropriation, bears only on the amount of
compensation.” Ibid.
To be sure, Tahoe-Sierra distinguished between
physical takings and regulatory takings. See Tahoe-
Sierra Pres. Council, Inc., 535 U.S. at 323 (It is
“inappropriate to treat cases involving physical
takings as controlling precedents for the evaluation of
a claim that there has been a ‘regulatory taking’ and
vice versa.”); but see Lucas, 505 U.S. at 1017 (“total
deprivation of beneficial use is, from the landowner’s
point of view, the equivalent of a physical appro-
priation”). However, that distinction should be
revisited.
As noted most recently by Cedar Point, liability
attaches when the property right is taken. Cedar
Point, 594 U.S. at 153-54; Knick v. Twp. of Scott, 588
U.S. 180, 189 (2019) (“a property owner has a claim
for a violation of the Takings Clause as soon as a
government takes his property for public use without
paying for it”); Palazzolo v. Rhode Island, 533 U.S.
606, 638-39 (2001) (Stevens, J., concurring in part and
dissenting in part) (“A taking is a discrete event. . . .
Like other transfers of property, it occurs at a
particular time, that time being the moment when the
relevant property interest is alienated from its
owner.”); San Diego Gas & Elec. Co. v. City of San
Diego, 450 U.S. 621, 652-53 (1981) (Brennan, J.,
dissenting) (the analysis is not about how the
government action is labeled or what the government
intends, but what it does).
Tahoe-Sierra is thus in tension with that estab-
lished rule. Temporary takings work no less of a
 31

constitutional injury to property owners than perma-

nent ones. See Fisher v. Bountiful City, 21 Utah 29,
59 P. 520, 522 (1899) (“To take away the dominion and
control over property is to take the property itself; for
the absolute right to property includes the right of
dominion, control, and the management thereof.’”).
Nonetheless, instead of liability attaching when
the property right is taken, Tahoe-Sierra holds that
liability attaches when the right is taken, plus the
elapsing of some unknown period of time. This
construct of time and property rights also relegates
the right to use to second-class status and affords it
less constitutional protection than the right to
exclude. See San Diego Gas & Elec. Co., 450 U.S. at
657 (Brennan, J., dissenting) (“This Court more than
once has recognized that temporary reversible
‘takings’ should be analyzed according to the same
constitutional framework applied to permanent
irreversible ‘takings.’”).
This case is an exemplary vehicle to resolve this
tension. Michigan’s shutdown order stripped
Petitioner’s property of the ability to earn income but
left it with the hardship of continuing expenses.
Undisputedly it was a severe burden, and regardless
of its “temporary” moniker, there was no certainty,
even within the government itself, as to when it would
end. See App. 75a (noting multiple extensions of the
Michigan shutdown orders); Block v. Hirsh, 256 U.S.
135, 167 (1921) (McKenna, J., dissenting) (“If [an
oppressive regulation] can be made to endure for two
years, it can be made to endure for more.”); Kimball
Laundry Co. v. United States, 338 U.S. 1, 14 (1949)
(“There was nothing [the property owner] could do,
therefore, but wait.”).
 32

For the duration, Petitioner had no feasible way to

sell the property. Cf. Brakke v. Iowa Dep’t of Natural
Resources, 897 N.W.2d 522, 543 (Iowa 2017) (during
five-year emergency order shuttering their business,
property owners cannot “escape the tentacles of the
DNR because the DNR restrictions will scare away
potential buyers”). And even though the State
eventually rescinded the order, “returning the use of
the property after some taking period does not return
the income flow that was lost in time.” William W.
Wade, Temporary Takings, Tahoe Sierra, and the
Denominator Problem, 43 Envtl. L. Rep. News &
Analysis 10189, 10200 (2013).
Notwithstanding these irreversible effects, because
the Respondent’s confiscatory regulation was tempor-
ary in duration, the court below dismissed Petitioner’s
categorical takings claim as a matter of law. 4 App.
32a. “Time” also played a role in Petitioner’s Penn
Central claim. Specifically, it was the means by which
the court below minimized the two factors in Peti-

4 The Michigan Supreme Court dissent disagreed. App. 45a

(“When the government forces a business to incur losses by
precluding use, I fail to see why just compensation would not be
required.”); see also Tenoco Oil Co., Inc. v. Dep’t of Consumer
Affairs, 876 F.2d 1013, 1027 (1st Cir. 1989) (noting that fixed
costs make the temporary loss of income economically
prohibitive). In a footnote, the Court of Appeals also speculated
that some use could remain through “remote fitness services” or
“the sale of products,” although there was no evidence that the
gym ever engaged in those businesses or had the necessary
equipment to do so. App. 32a. This reflects the downside of
dismissing claims prior to discovery. Moreover, the Michigan
Supreme Court dissenters opined that “far-fetched” alternative
uses were irrelevant. App. 43a.
 33

tioner’s favor, allowing the character of the regulation

to be dispositive. App. 33a.
In light of Cedar Point, this Court should revisit
Tahoe-Sierra’s distinction between physical takings
and regulatory takings and whether time plays a role
in property rights in light of Cedar Point. The issue is
squarely presented for review and certiorari should be
granted.
CONCLUSION
This Court should grant the petition.
Respectfully submitted,
JONATHAN M. HOUGHTON
Counsel of Record
DEBORAH J. LA FETRA
Pacific Legal Foundation
3100 Clarendon Boulevard,
Suite 1000
Arlington VA 22201
(202) 888-6881
[email protected]
PHILIP L. ELLISON
Outside Legal Counsel PLC
530 W. Saginaw St.
Hemlock, MI 48626
Counsel for Petitioner

JANUARY 2025.