NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0160n.06

                                           No. 19-1921

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Mar 16, 2020
 HALPERN 2012, LLC,                                       )                   DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellant,                              )
                                                          )     ON APPEAL FROM THE
 v.                                                       )     UNITED STATES DISTRICT
                                                          )     COURT FOR THE EASTERN
 CITY OF CENTER LINE, MICHIGAN,                           )     DISTRICT OF MICHIGAN
                                                          )
        Defendant-Appellee.                               )



BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Plaintiff Halpern 2012, LLC (“Halpern”) brought

this action against the City of Center Line, Michigan (“Center Line”), challenging the

constitutionality of its Property Management Ordinance’s (“PMO”) rental-property inspection

procedures as lacking either a warrant requirement or an opportunity for pre-compliance review.

While this lawsuit was pending, Center Line amended the PMO to correct the alleged deficiencies.

Center Line moved for summary judgment, and the district court granted the motion except as to

Halpern’s claim for declaratory relief under the Fourth Amendment. The district court denied

Halpern’s request for injunctive relief as well as its request for damages under 42 U.S.C. § 1983

and restitution under its unjust-enrichment claim. Halpern appeals the damages and unjust

enrichment holdings. Because Halpern has failed to establish that Center Line’s constitutional

violation caused it to pay the fees it seeks to recoup or that Center Line’s retention of the fees is

unjust, we AFFIRM.
Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


                                        BACKGROUND

I.     Center Line’s Property Management Ordinance

       Halpern is a Michigan limited liability company whose sole member is David Halpern, an

Israeli citizen living outside the U.S.         Halpern’s resident agent is Garner Properties

& Management, LLC, which is owned and operated by Christopher Garner (“Garner”). Halpern

owns a single-family rental home at 8424 Harding in Center Line (“the property”), and contracted

with Garner Properties to manage it.

       Center Line is one of many municipalities that have adopted the International Property

Maintenance Code of 2009. Center Line’s code includes a Property Management Ordinance

(“PMO”) that regulates the rental of non-owner-occupied properties. Section 14-215 of the PMO

states that the owner of a property may not rent the property unless the owner has been issued a

certificate of compliance certifying that the property meets Center Line’s maintenance and

habitability requirements. Properties are inspected and certified biennially. If a property is

inspected and found to violate one or more provisions of the local code, Center Line must send a

letter to the property owner explaining the basis of noncompliance and setting a deadline for

required repairs or alterations.

       In 2017, Section 14-220 of the PMO stated as follows regarding inspections:

       (a) The city building department or its designated agent shall conduct all
           inspections required under this article at a reasonable time. The inspection of
           any residential building or residential dwelling unit shall be done during
           daylight hours only, except by consent of the owner or occupant to the contrary.
           ...
       (b) Upon refusal of a tenant, occupant or owner to consent to the inspection
           required under this article, the city building department shall issue a letter of
           inspection; and such letter shall state that the reason for the issuance thereof is
           the refusal to allow the inspection. The owner or occupant then has 30 days
           from the date of the issuance of the letter of inspection to allow inspection of
           the property or a violation will be issued.



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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


CENTER LINE, MICH., CODE OF ORDINANCES (“PMO”), art. VIII, § 14-220 (2017). The 2017 PMO
also criminalized interference with inspections:

        Any person or persons who shall refuse to comply with or who shall assist in the
        violation of any of the provisions of this article, or who, in any manner hinders,
        obstructs, delays, resists, prevents or in any manner interferes with the inspection
        personnel of the department in the performance of any duty herein imposed, or shall
        refuse to permit such inspectors to perform their duty by refusing them entrance at
        reasonable hours to buildings or places for the purpose of enforcement of this
        article, shall be subject to the fines and penalties herein provided.

§ 14-195. The penalty was a maximum fine of $500 and/or imprisonment of not more

than 90 days. 

        Section 14-221 imposed penalties on property owners for failure to obtain a certificate of

compliance:

        (a) The owner of any non-owner occupied commercial, industrial, or residential
            building or residential dwelling unit who shall fail to register the building or
            unit in accordance with section 14-217 or who shall fail to obtain a certificate
            of compliance in accordance with section 14-214 shall be guilty of a
            misdemeanor.
        (b) Any owner who fails to comply with any of the other requirements of this article
            shall be guilty of a misdemeanor.

§ 14-221.

        The PMO made payment of registration and inspection fees prerequisites to obtaining the

required certifications. It required registration fees to be paid before a registration certificate was

issued and required inspection fees to be paid by March 31 of each inspection year.

        Garner testified regarding how Garner Properties managed compliance with these

provisions. He stated that after Garner Properties received a call from Center Line stating that it

intended to inspect a rental property, Garner would notify the tenant that the tenant or a

representative needed to be present on the day of the scheduled inspection. Tenants were not given

a choice whether to consent.




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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


           Garner Properties registered the Harding property as a rental in March 2017. On March

10, Garner Properties paid Halpern’s fee of $175 to Center Line.1 Center Line completed an

inspection and sent a letter to Garner Properties on April 10, explaining that the property violated

Center Line’s code and specifying several required repairs. Center Line gave Garner Properties

until May 10 to complete the repairs. Garner Properties did not make the repairs by that deadline

and, on May 11, Center Line sent another letter to Garner Properties stating that it was in violation

of § 14-215 because it was renting the Harding property without a certificate of compliance.

Garner then requested a 45-day extension to complete the repairs. On August 5, Center Line again

wrote Garner Properties asking to schedule a second inspection and reiterating that renting the

Harding property without a certificate of compliance violated § 14-215.

           On September 13, 2017, Center Line issued a citation to Halpern for renting the property

without a certificate of compliance in violation of § 14-215 of the PMO. Garner testified that he

understood why the ticket had been issued and that he had been unable to schedule the needed

repairs with the property’s tenant within Center Line’s time frame. For reasons not reflected in

the record, Center Line dismissed the citation in October 2017. Center Line eventually re-

inspected the property and issued Halpern a certificate of compliance.

II.        Procedural History

           Halpern brought this action against Center Line in June 2018, alleging that the ordinance

interfered with its property interest, in violation of the Due Process Clause of the Fourteenth

Amendment (Count I), and that it permitted warrantless searches in violation of the Fourth

Amendment (Count II). Halpern separately alleged a violation of 42 U.S.C. § 1983 (Count VI).

Halpern also brought claims for assumpsit (Count III), injunctive relief (Count IV), and declaratory



1
    It is not clear from the receipt in the record whether that payment was for a registration fee or an inspection fee.

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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


relief (Count V). Halpern later moved to amend Count III to clarify that it sought restitution under

a theory of unjust enrichment.2 Center Line moved for summary judgment on all claims.

        The court granted summary judgment to Center Line on Halpern’s Fourteenth Amendment

claim because it was based on the same government action underlying its Fourth Amendment

claim—the authorization of warrantless searches. The court explained that because “[s]ubstantive

due process protects only against state action that is not otherwise proscribed by the plain text of

other constitutional amendments,” a substantive due process claim was unavailable to Halpern.

(R. 28, p. 15 (citing Ciminillo v. Streicher, 

, 465 (6th Cir. 2006); Graham v. Connor,

, 395 (1989); County of Sacramento v. Lewis, 

, 842 (1998)).)

        Relying on City of Los Angeles v. Patel, 

(2015), the district court held that

§ 14-220 of the prior PMO violated the Fourth Amendment on its face.3 In Patel, the Court held

that in the absence of a warrant, the subjects of administrative searches must be given an

opportunity for neutral pre-compliance review before being subjected to 

. Because § 14-220 of the prior PMO failed to provide an opportunity for pre-compliance

review, the district court found that Halpern was entitled to a partial judgment declaring it

unconstitutional. However, because Center Line had already amended the ordinance to correct

the constitutional deficiency, the district court denied injunctive relief.



2
 Assumpsit has been abolished as an independent cause of action in Michigan. See Fisher Sand & Gravel Co. v. Neal
A. Sweebe, Inc., 

, 256-57 (Mich. 2013).
3
  The district court rejected Center Line’s argument that Halpern lacked standing to assert a Fourth Amendment
challenge to the PMO. The district court correctly distinguished Shamaeizadeh v. Cunigan, 

, 544-45 (6th
Cir. 2003), where we held that a rental-property owner lacked standing to assert a Fourth Amendment challenge to a
warrantless search of tenant-occupied property, because Halpern challenges a rental-property ordinance rather than a
specific search of tenant-occupied property. Likewise, the district court correctly explained that our holding in
Vonderhaar v. Village of Evendale, 

, 401-02 (6th Cir. 2018), does not preclude Halpern from
demonstrating an imminent threat of injury because unlike the inspection ordinance at issue in Vonderhaar, Center
Line’s prior PMO did not include language limiting the city’s remedies to those “provided by law.” (R. 28, p. 10

).)


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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


         Halpern argued that it was entitled to damages under § 1983 for all registration and

inspection fees it paid under the prior ordinance. The district court denied Halpern’s claim, finding

that Halpern had not shown a causal connection between the absence of pre-compliance review

and the fees paid. The court explained that municipalities are entitled to collect reasonable

registration and inspection fees associated with certificates of compliance for rental properties and

found that Center Line could properly collect fees without regard to the absence of pre-compliance

review. Finally, the court found that Halpern was not entitled to restitution under an unjust-

enrichment claim because it had not shown that inequity resulted from paying the otherwise-lawful

registration and inspection fees.

         Halpern appeals the district court’s denial of damages and restitution.


                                         STANDARD OF REVIEW

         We review a grant of summary judgment de novo, viewing the facts in the light most

favorable to the non-moving party. Gillis v. Miller, 

, 683 (6th Cir. 2017). Summary

judgment is appropriate where there are no genuine disputes of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).


                                                 DISCUSSION

I.       Section 1983 Damages

         The parties do not dispute the facts, nor do they dispute that § 14-220 of the prior PMO

was facially unconstitutional insofar as it failed to require a warrant procedure or provide an

opportunity for pre-compliance review.4 Accordingly, the only issue on appeal is whether the

district court properly denied Halpern’s claims for damages and restitution. It did.


4
  We note that in the wake of Patel, several district courts in this circuit have considered challenges to similar
inspection ordinances that failed to establish warrant procedures or provide an opportunity for pre-compliance review.

                                                          6
Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


        As the district court correctly explained, a § 1983 plaintiff must establish a causal

connection between the constitutional violation and the relief sought. Powers v. Hamilton Cty.

Pub. Def. Comm’n, 

, 608 (6th Cir. 2007). In determining whether a plaintiff has met

this burden, we rely on “[t]raditional tort concepts of causation.” 

v. City of

Mansfield, 

, 438 (6th Cir. 2005)). Accordingly, Halpern must show that Center Line’s

adoption and/or implementation of the unconstitutional section of the prior PMO was the cause in

fact and proximate cause of its fee payments. “Conduct is the cause in fact of a particular result if

the result would not have occurred but for the conduct.” 

v. Dowd, 

, 669 (8th Cir. 1992)).

        Halpern has not shown that Center Line’s adoption or implementation of the

unconstitutional section of the prior PMO caused it to pay registration or inspection fees. To the

contrary, nothing in Halpern’s argument or in the record suggests that if Center Line had provided

an opportunity for pre-compliance review or required a warrant at the time Halpern’s property was

registered as a rental and an inspection was scheduled, Halpern would not have paid the required

fees.   Notably, in MS Rentals, LLC v. City of Detroit—a similar case brought by Garner

Properties—the district court denied a refund of inspection fees for the same reason, concluding

that “the lack of pre-compliance review affected only the propriety of the inspection ordinance.”

, 419 (E.D. Mich. 2019).




Those courts have consistently found for the plaintiffs on their Fourth Amendment claims. See, e.g., Garner
Properties & Mgmt. v. Charter Township of Redford, No. 15-14100, 

, at *10-*13 (E.D. Mich. Aug.
8, 2017) (denying summary judgment to city on plaintiff’s Fourth Amendment claim because inspection ordinance
failed to provide opportunity for pre-compliance review); Landon v. City of Flint, No. 16-11061, 

,
at *4-*6 (E.D. Mich. Nov. 30, 2016) (recommending granting preliminary injunction where inspection ordinance
lacked opportunity for pre-compliance review), report and recommendation adopted, 

, at *2-*3
(E.D. Mich. Jan. 24, 2017); Baker v. City of Portsmouth, No. 1:14cv5l2, 

, at *5-*7 (S.D. Ohio Oct.
1, 2015) (granting summary judgment for plaintiffs on Fourth Amendment claim); MS Rentals, LLC v. City of Detroit,

, 416-17 (E.D. Mich. 2019) (granting partial summary judgment for plaintiffs declaring that
inspection ordinance violated Fourth Amendment).

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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


       Of course, causation would be established if the registration and inspection fees were

themselves unconstitutional; but they are not. Center Line’s rental-property registration and

inspection requirements are reasonable means of advancing its governmental interests in public

safety and welfare, and it may impose reasonable fees to offset the costs of advancing those

interests. Harris v. Akron Dep’t of Public Health, 10 F. App’x 316, 319-20 (6th Cir. 2001); see

also Camara v. Municipal Court, 

, 535 (1967) (recognizing that “numerous courts

have upheld the police power of municipalities to impose and enforce . . . minimum standards even

upon existing structures”); Kircher v. City of Ypsilanti, 

, 744 (Mich. Ct. App.

2005) (holding that municipal fees are presumed reasonable unless “wholly out of proportion to

the expense involved”).

       Instead of directly addressing the causation question, Halpern asserts that since the fee

requirements fell under the same “ordinance scheme” as § 14-220, they must be invalid.

(Appellant’s Br. at 22-23, 25-26.) Halpern relies on McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco, 

(1990), and Carpenter v. Shaw, 

(1930). In

McKesson, the plaintiff paid excess taxes to the State of Florida under a scheme that favored

distributors of local products, thereby discriminating against interstate commerce in violation of

the Commerce 

. The Court held that “the Due Process Clause of the

Fourteenth Amendment obligates the State to provide meaningful backward-looking relief,” which

could include a refund to the plaintiff in the amount it had overpaid under the discriminatory

provisions or, alternatively, collection of back taxes from the plaintiff’s competitors. 

40.

Similarly, in Carpenter, the plaintiffs paid land taxes under duress but argued that the underlying

tax did not apply to them because of their membership in the Choctaw 

. The




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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


Court agreed and held that the plaintiffs were entitled under the Fourteenth Amendment to recover

the taxes they had paid under duress. 

       According to Halpern, McKesson and Carpenter establish that Center Line must refund the

fees Halpern paid to the city when the unconstitutional section of the PMO was in effect. We

disagree. As the district court in MS Rentals explained in rejecting the same argument, those cases

“involved refunding payments where the underlying tax or assessment scheme was deemed

. As discussed above, the underlying fees in this case were not

unlawful. Indeed, McKesson highlights the shortcomings of Halpern’s claim for damages because,

unlike the plaintiff in that case, Halpern cannot demonstrate a difference between what it actually

paid the city and what it would have paid had the PMO been constitutional from the start. See

.

       Halpern next argues that because its fee payments to Center Line for the Harding property

were “involuntary,” they must be refunded. (Appellant’s Br. at 23-25.) Halpern cites two

Michigan Supreme Court cases in support. In Theatre Control Corp. v. City of Detroit, the city

charged residents for using air conditioners that failed to recirculate water. 

, 385

(1963). After finding the charge unreasonable and arbitrary, the court rejected the city’s argument

that a refund of the charges was unwarranted because the charges had been paid voluntarily. 

The court found that because the plaintiffs would have had their water shut off had they

not paid the charges, their payments were involuntary. 

Beachlawn Building Corp.

v. City of St. Clair Shores, the court found that the defendant had charged the plaintiff an excessive

building fee and that the payment was involuntary because the plaintiff had to choose between

paying it or closing its business. 

, 133 (1963). The court remanded to the trial court

to determine the appropriate award of damages. 

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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


       Halpern’s reliance on Theatre Control Corp. and Beachlawn is misplaced. It is true that

Center Line requires fee payments before properties may be rented and, in that sense, the fees are

not voluntary for rental-property owners. But that is where the similarity ends. Theatre Control

Corp. and Beachlawn involved fees that were both involuntarily paid and unlawful. See Theatre

Control 

; 

. Because the underlying

registration and inspection fees paid by Halpern were legal, Theatre Control Corp. and Beachlawn

are inapposite.

       Halpern develops an additional argument in its reply brief: that the section of the pre-

amendment PMO governing fees was unconstitutional because it was inseparable from the section

establishing inspection procedures. It claims this is so because “[t]he payment is a condition

precedent to scheduling the unconstitutional inspection.” (Reply Br. at 1.) As an initial matter, it

is not clear that payment actually is a condition precedent to inspections being scheduled; the PMO

states only that the fee “shall be paid before a certificate of compliance is issued.” PMO art. VIII,

§ 14-218(c). But even if payment of an inspection fee is a condition precedent to an inspection

occurring, Halpern fails to adequately explain why the fee requirement is dependent on or

inseparable from the unconstitutional provision governing inspection procedures. Moreover, that

Center Line amended the section governing inspection procedures without changing the fee

requirements demonstrates that those portions of the ordinance are separable. Where one part of

a statute is constitutional and the another is unconstitutional, and those “parts are wholly

independent of each other, that which is constitutional may stand while that which is

unconstitutional will be rejected.” Brockett v. Spokane Arcades, Inc., 

, 502 (1985).

Accordingly, Halpern’s argument fails.




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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


II.    Unjust Enrichment

       In Michigan, a claim of unjust enrichment requires a showing of: “(1) receipt of a benefit

by the defendant from the plaintiff and (2) an inequity resulting to plaintiff because of the retention

of the benefit by defendant.” Barver v. SMH (US), Inc., 

, 797 (Mich. Ct. App.

1993) (citing Dumas v. Auto Club Ins. Ass’n, 

, 546 (1991)). The decision to grant

equitable relief in the form of restitution is in the discretion of the court. Van Etten v. Mfrs. Nat’l

Bank, 

, 484 (Mich. Ct. App. 1982).

       Halpern argues that it is entitled to restitution because “it was ‘inequitable’ for [Center

Line] to collect inspection fees under threat of an unconstitutional search of plaintiff’s property.”

(Appellant’s Br. at 29.) Halpern relies on two Michigan Supreme Court cases for support.

In Tkachik v. Mandeville, the court held that the plaintiff—a personal representative of an estate—

was entitled to contributions from the co-owner of two properties for property expenses paid by

the decedent before her death. 

, 267 (Mich. 2010). The decedent and defendant

were married and owned two properties as tenants by the entirety, causing the decedent’s interest

in the properties to pass to the defendant husband upon the decedent’s death. 

In the

years preceding his wife’s death, the defendant was completely absent, leaving his terminally ill

wife to pay taxes, mortgages, and insurance on the properties. 

representative

argued that the husband was responsible for his share of the expense of maintaining the properties

in his absence. 

The probate court and court of appeals held that the “defendant had not

been unjustly enriched because he had only received ‘that which was given to him by operation of

law.’” 

v. Mandeville, 

, 324 (Mich. Ct. App. 2009)). The

Michigan Supreme Court reversed, finding that principles of equity required the defendant to pay




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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


his share of the property maintenance cost. 

In so holding, the court noted that “a finding

of unjust enrichment requires the consideration of both legal and equitable factors.” 

       Halpern also relies on Wright v. Genesee County, where the plaintiff brought an unjust-

enrichment claim against his employer after it overcharged him for health-insurance premiums,

thereby enriching itself at his expense. 

, 808 (Mich. 2019). The issue before the

Michigan Supreme Court was limited to whether the State’s governmental tort liability act barred

the plaintiff’s unjust-enrichment claim. 

The court held that the act did not bar an unjust-

enrichment claim because the remedy for unjust enrichment is restitution, not damages. 

The court explained that unjust enrichment seeks “to correct against one party’s retention of a

benefit at another’s expense. And the correction, or remedy, is therefore not compensatory

damages, but restitution. Restitution restores a party who yielded excessive and unjust benefits to

his or her rightful position.” 

(citing Restatement (Third) of Restitution & Unjust

Enrichment § 1 (2011)).

       Halpern seems to rely on Tkachik and Wright for the proposition that principles of equity

may require Center Line to return the inspection fee notwithstanding that it is otherwise legally

entitled to collect that fee to offset the cost of inspections. Although Halpern is correct that the

legality of the fees does not preclude a finding of unjust enrichment, Halpern has not adequately

explained why principles of justice and equity entitle it to restitution in this case. Assuming that

the fee payments are properly considered a “benefit,” Center Line used the fees to pay for its

inspections of the Harding property. Unlike in Tkachik and Wright, there is no indication that the

fees were excessive, used for anything other than their stated purpose, or obtained unfairly. To

the contrary, the record shows that Garner Properties paid the fee without objection and then

scheduled an initial inspection of the Harding property.



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Case No. 19-1921, Halpern 2012, LLC v. City of Center Line, Mich.


       Accordingly, Halpern’s argument regarding unjust enrichment rests on the premise that the

unconstitutionality of the prior PMO’s inspection procedures by itself rendered the fee payment

inequitable. The district court here is not alone in rejecting that argument. Other district courts

applying Michigan law in factually similar cases have rejected that argument. In Investment Realty

Services, LLC v. City of Allen Park, the plaintiff paid an inspection fee under an ordinance that

was unconstitutional for failure to provide for pre-compliance review. No. 18-11476, 

, at *7 (E.D. Mich. Jan. 15, 2020). The district court denied the plaintiff’s claim for unjust

enrichment, finding that because the plaintiff would have paid an inspection fee even with an

opportunity for pre-compliance review and because the fee the plaintiff paid did in fact pay for an

inspection, there was no inequity. 

see also Flynn v. City of Lincoln Park, No. 2:18-cv-

12187, 

, at *11 (E.D. Mich. Jan. 21, 2020) (finding plaintiffs’ unjust enrichment

claim seeking restitution of inspection fees meritless where plaintiffs were legally required to pay

inspection fees to ensure habitability of rental property).

       We find the district courts’ reasoning in these cases persuasive. As discussed above,

Halpern paid fees that Center Line was legally entitled to require in the public interest. The fee

was used to cover the costs of the inspection of the Harding property, and would have been paid

without regard to the failure to provide for pre-compliance review. Although the fee requirement

was tangentially related to the unconstitutional portion of the former PMO, that alone does not

render the city’s retention of the fees inequitable or unjust.


                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s denial of damages and

restitution to Halpern.




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