Rubicon Real Estate Holdings, LLC; Browne Design Consultants, LLC; Joseph Brown v. City of Pontiac, Michigan; Garland S. Doyle

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0176p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RUBICON REAL ESTATE HOLDINGS, LLC; BROWNE
DESIGN CONSULTANTS, LLC; JOSEPH BROWN,
Plaintiffs-Appellants,
v.
CITY OF PONTIAC, MICHIGAN; GARLAND S. DOYLE,
Defendants-Appellees.
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No. 25-1631
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:23-cv-10439—David M. Lawson, District Judge.
Argued: June 4, 2026
Decided and Filed: June 18, 2026
Before: GRIFFIN, LARSEN, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Cindy Rhodes Victor, THE VICTOR FIRM, PLLC, Southfield, Michigan, for
Appellants. Michael T. Berger, ROSATI SCHULTZ JOPPICH & AMTSBUECHLER PC,
Farmington Hills, Michigan, for Appellees. ON BRIEF: Cindy Rhodes Victor, THE VICTOR
FIRM, PLLC, Southfield, Michigan, for Appellants. Michael T. Berger, ROSATI SCHULTZ
JOPPICH & AMTSBUECHLER PC, Farmington Hills, Michigan, for Appellees.
_________________
OPINION
_________________
READLER, Circuit Judge. As our nation celebrates its semiquincentennial, many
Americans have taken the opportunity to reflect on our shared history, both its highs and its lows.
>

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The highs are many, marked by places such as Yorktown, Gettysburg, and Midway, each well
deserving of remembrance. But the lows bear contemplating as well for the lessons they teach.
One long running example of the latter has been the challenges presented by a consuming
yet unresponsive bureaucratic government. Two hundred and fifty years ago, the American
rebels cited King George’s repressive government, which sent “hither swarms of Officers to
harass our people, and eat out their substance,” The Declaration of Independence para. 12 (U.S.
1776), as one of many reasons for declaring our independence from England, id. paras. 3–29.
Although our forthcoming United States government became more responsive to public concern,
the ensuing American experiment has not fully solved the weariness of large bureaucracy.
A century ago, those matters were on the mind of our thirtieth president, Calvin
Coolidge, as he addressed an audience at the College of William and Mary in colonial
Williamsburg on the nation’s sesquicentennial. His timeless words—which Silent Cal was
famously careful in choosing, see Amity Shlaes, Coolidge 308–09 (2013)—focused on what
drove the American Revolution and the parallel challenges facing the United States in the
Roaring Twenties. Of particular concern were his fears of a growing bureaucracy in American
government, describing it as the “one element in our institutions that sets up the pretense of
having authority over everybody and being responsible to nobody.” See Calvin Coolidge, States’
Rights and National Unity (May 15, 1926), https://coolidgefoundation.org/resources/address-at-
william-and-mary-college/. For President Coolidge, “[o]f all forms of government, those
administered by bureaus are about the least satisfactory to an enlightened and progressive
people.” Id.
Still today, entrenched bureaucracies—from Washington, D.C., to our local
communities—maintain their firm grip. That was the reality facing Rubicon Real Estate
Holdings, LLC, a Michigan-based real estate developer, who complains of the trials and
tribulations it faced in working with the bureaucracy of the City of Pontiac. In 2019, Rubicon
began efforts to revive a beleaguered commercial property in the reemerging city with the hope
that future tenants could operate several medical marijuana cultivation and processing facilities
at the site. Yet that process proved to be easier said than done. Approvals for various zoning

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changes lagged. Licensing for Rubicon’s future tenants bounced back and forth between the city
clerk’s office for a year and a half. At one point, the city clerk created another bottleneck by
pressing an arguably specious argument that the entire project violated the City’s medical
marijuana ordinances. Ultimately, the venture fell apart in 2021 when Rubicon’s prospective
tenants backed out of their commitments. And following the project’s collapse, a separate
business owned by Rubicon’s managing member, Joseph Brown, lost out on a contract to assist
another development project in Pontiac.
Blaming all these misfortunes on the City and its agents, Rubicon, Brown, and Brown’s
separate business sued the City and the city clerk. Their complaint alleged a host of civil rights
violations arising from the delays in approving the project and the resulting fallout. Following
discovery, however, the district court granted defendants’ motion for summary judgment, leaving
plaintiffs to seek recourse by way of an appeal.
Rubicon’s saga with the City of Pontiac may have fallen short of an experience in good
governance. Yet the undisputed record shows that City officials at worst simply lagged in
granting discretionary zoning and licensing approvals to Rubicon and its potential tenants. As
frustrating as those developments surely were for Rubicon, as they are for many others caught in
bureaucratic webs, the record here falls well short of clearing the high bar of a constitutional
violation. Accordingly, we affirm.
I.
A. While federal law continues to prohibit the manufacturing, distribution, dispensing, or
possession of marijuana, see 21 U.S.C. § 841(a), many states over the past two decades have
liberalized their laws to allow for the use of the drug for medical and recreational purposes, see
generally Joanna R. Lampe, Lisa N. Sacco & Hassan Z. Sheikh, Cong. Rsch. Serv., IF12270,
The Federal Status of Marijuana and the Policy Gap with States (2026). That is the case in
Michigan. See, e.g., Seth Quidachay-Swan, Researching Marijuana Law, 100 Mich. Bar J. 52,
52 (2021). Among other developments, Michigan now licenses the farming of marijuana by a
“grower,” which is a commercial entity that “cultivates, dries, trims, or cures and packages”
marijuana for sale to a third party. See Mich. Comp. Laws § 333.27102(g). Michigan law

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likewise recognizes the role a “processor” plays in the distribution scheme—a commercial entity
that purchases marijuana from a grower and “extracts resin” from it or creates a marijuana-
infused product for resale. Id. § 333.27102(v).
Yet even in this post-prohibition era, state and local oversight is not absent. Far from it,
in fact. In the Wolverine State, for example, elaborate state and local rules now govern those
who wish to engage in the state’s burgeoning marijuana business. See, e.g., Green Genie, Inc. v.
City of Detroit, 63 F.4th 521, 524–25 (6th Cir. 2023). Consider, for instance, what it takes to
start a medical marijuana growing or processing business in the City of Pontiac, a well-known
Detroit suburb. First, an entity needs to find a properly zoned site to engage in such activity.
But those locations are limited in number. Concerned about the “potential adverse impacts” of
medical marijuana facilities on “adjacent property owners,” the City has restricted where
growing or processing facilities can reside. See Pontiac, Mich., Zoning Ordinance, art. 3, ch. 11,
§ 3.1101 (2025). For starters, any such facility is permitted only in a district zoned for industrial
use. See id. art. 2, ch. 2 § 2.204; id. art. 3, ch. 11, § 3.1109; see also id. art. 2, ch. 1, § 2.101
(explaining zoning classifications). From there, the City envisions medical marijuana cultivation
and processing occurring primarily within the City’s medical marijuana “overlay” districts—
discrete geographic areas in Pontiac where medical marijuana businesses would operate. Id. art.
3, ch. 11, §§ 3.1102, 3.1108. The City’s Planning Commission, however, has the discretion,
after considering a number of factors (e.g., the impact on the surrounding neighborhood and
public welfare), to approve a “special exception permit” (SEP) for medical marijuana uses
outside the overlay district. Id. art. 3, ch. 11, §§ 3.1106–3.1107; id. art. 6, ch. 3, §§ 6.302–6.303.
Assuming a properly zoned site is found within the City, an entity wishing to engage in
medical marijuana growing or processing there must still obtain licenses from both the State and
the City before beginning operations. Id. art. 3, ch. 11, § 3.1105, Pontiac, Mich., Municipal
Code ch. 26, art. XXX, § 26-1498(a)–(b) (2025); Mich. Comp. Laws §§ 333.27501, 333.27502.
Each license requires detailed disclosures to the government. See Mich. Comp. Laws
§ 333.27401 (state licensure requirements); Pontiac, Mich., Municipal Code, ch. 26, art. XXX,
§ 26-1498(c) (City licensure requirements). For instance, the City’s application requires
information on 31 separate topics, including the grower’s or processor’s business plans, finances,

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proof of insurance, and plans for the property, including how the facility will economically
benefit Pontiac. See Pontiac, Mich., Municipal Code, ch. 26, art. XXX, § 26-1498(c).
Inspections by relevant City departments are likewise required before the final issuance of any
permit. Id. § 26-1499(b). Ultimately, the city clerk is tasked with assessing any permit
application and “shall award a permit to any applicant” who provides a completed application,
receives the necessary approvals, and otherwise satisfies the City’s many rules for medical
marijuana growing and processing facilities. Id. § 26-1499(d); see also Pontiac, Mich., Zoning
Ordinance, art. 2, ch. 5, §§ 2.545–2.546 (listing the rules for medical marijuana growing or
processing facilities).
B. Rubicon Real Estate Holdings, LLC, an area real estate developer, had its eyes on a
derelict 20-acre parcel of land on Glenwood Avenue in Pontiac. In better days, Glenwood Plaza
was the home to storefronts of two former Michigan-based retailers, a K-Mart and Farmer Jack,
among other tenants. Hoping to restore Glenwood Plaza to its former glory, Rubicon aimed to
develop a shopping area with a grocery store and facilities for medical marijuana growing and
processing. So the developer entered into a purchase agreement for the property in March 2019.
From there, Rubicon’s plan was to have the property rezoned for industrial use, and, once it did,
to acquire tenants and have those tenants obtain necessary licenses from the City. As a final
step, Rubicon would obtain an SEP for the site, as Glenwood Plaza was located outside of the
Pontiac overlay zone.
The plan was launched from solid footing. At the time of purchase, the Glenwood
property was zoned for business or residential mixed use. To comply with the City’s zoning
requirements, the developer applied in July 2019 to rezone the parcel for industrial use. See
Pontiac, Mich., Zoning Ordinance, art. 2, ch. 2, § 2.204. At a December 2019 hearing, the
Pontiac Planning Commission unanimously recommended that the City Council approve
Rubicon’s application. In turn, the City Council approved the zoning change the next month to
“allow [for] medical mari[j]uana facilities to locate” at the Glenwood property. R. 57-11,
PageID 785–86. The City and Rubicon also executed a Conditional Rezoning Agreement, which
memorialized the zoning change and the parties’ mutual understandings for the project. At the
same time, City officials reminded Rubicon that permitting requirements were still pending—

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specifically, permitting for each tenant operating at Glenwood Plaza, as well as an SEP for the
site, given the plaza’s location outside the overlay district.
Meanwhile, Rubicon began looking for potential tenants for the Glenwood property. The
developer garnered interest from several entities, including Pharmaco, Inc., and Family Rootz,
LLC—two state licensed medical marijuana growers and processors. Pharmaco applied for two
permits from the City in August 2019 (before the Glenwood property was even zoned for
industrial use). Nearly a year later, Garland Doyle, then-interim city clerk, wrote to Pharmaco to
inform the company that its applications were deficient on a number of fronts. For instance,
Doyle explained, one application neglected to include descriptions of Pharmaco’s financial
structure; neither included Pharmaco’s business plan or its plans to comply with Pontiac
sanitation rules. Pharmaco’s submissions likewise lacked proof of liability and casualty
insurance. Pharmaco supplemented its applications in a timely manner.
In the interim, Pharmaco executed a lease agreement with Rubicon. The agreement
contemplated that Pharmaco would need to obtain governmental approval and consents for its
operations before it could incur any liability under the lease. The agreement also envisioned the
lease commencing once Rubicon provided written notice to its tenant “that has received a
certificate of occupancy.” R. 57-13, PageID 797.
Around the same time the City identified deficiencies in Pharmaco’s applications, Family
Rootz applied for permits to operate as a medical marijuana grower and processor at Glenwood
Plaza. While Family Rootz contemplated entering into a lease agreement with Rubicon, no
agreement was ever executed.
Another six months passed without resolution to either Pharmaco’s or Family Rootz’s
applications. Growing concerned about the delays and prospects for the Glenwood project,
Rubicon shifted strategies. Instead of having the SEP application be the last step in the project,
the developer opted to move things forward; it applied for a permit in December 2020 to allow
any medical marijuana facilities at Glenwood Plaza to operate outside the overlay zone. This
effort, however, became a flashpoint between the developer and the City, as evidenced by a
pointed letter Rubicon sent to the City Council in early January 2021. The letter’s ire was

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directed at Doyle and the supposed reasons why he was holding up Pharmaco’s and Family
Rootz’s applications. Rubicon understood Doyle to be claiming that, barring an amendment to
the City’s ordinances, all medical marijuana growing and processing needed to occur within the
City’s overlay district, meaning that, without such an amendment, no license could be approved.
It pointed to the City ordinance that specifically contemplated medical marijuana uses outside
the overlay district upon the approval of an SEP. Maintaining that its lender was refusing to
disburse any loan funds for the development until the City issued Pharmaco’s and Family
Rootz’s licenses, Rubicon demanded that the City direct Doyle to issue the licenses immediately.
Doyle, however, was unmoved. On January 29, 2021, he wrote to both Pharmaco and
Family Rootz to reject their pending applications, explaining that both entities failed to include
information required under the City’s ordinances. Notably, Doyle did not reject the applications
for failing to comply with Pontiac zoning ordinances, as the site was zoned for industrial use and
the applicant was going to “obtain [an SEP] and Site Plan approval from [the] Planning
Commission.” R. 57-24, PageID 887. Upon receiving Doyle’s letter, Pharmaco and Family
Rootz timely updated their respective applications.
A number of events in February 2021 further informed Rubicon’s development
campaign. On February 3, 2021, the Planning Commission allowed for medical marijuana
operations outside the City’s overlay district and approved Rubicon’s SEP, seemingly rejecting
Doyle’s position. Roughly two weeks later, the City Council met to hear from Rubicon and
Doyle over the Glenwood Plaza project. At the meeting, Rubicon reiterated its position
articulated in its earlier letter, while Doyle maintained that it would be illegal for the City to
license any medical marijuana growing or processing outside the City’s overlay district. The
City Council, however, took no action following the meeting.
Seemingly having reached its own Rubicon, the developer, along with Family Rootz,
forwent further efforts to navigate Pontiac’s bureaucracy and instead opted to sue Doyle and the
City in Oakland County Circuit Court in late March. The lawsuit sought preliminary injunctive
and declaratory relief requiring Doyle to issue the permits for medical marijuana growing and
processing, as well as damages. The court initially denied any preliminary relief as it considered

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the plaintiffs’ other requests. Meanwhile, Doyle returned to reviewing the Pharmaco and Family
Rootz license applications. On May 21, 2021, the interim clerk again rejected the applications,
finding that several previously identified deficiencies had yet to be rectified. But, the same day,
the state court overseeing Rubicon and Family Rootz’s lawsuit awarded declaratory relief against
Doyle and the City, requiring the “forthwith” “approval of all pending Pharmaco, Inc[.], and
Family Rootz applications for grower and processor licenses.” R. 57-34, PageID 996. (The
plaintiffs voluntarily dismissed the rest of the suit in October 2021, as they understood Pontiac to
be “issuing permits” in a “timely” manner.) In the weeks after the court’s May order, Doyle
issued letters to both applicants indicating that all deficiencies had been rectified, and, in turn,
conditionally approving the licenses pending, among other things, City inspections for
compliance with local building codes.
Those approvals did not save the project. Pharmaco terminated its lease agreement with
Rubicon on June 18, 2021. Three months later Family Rootz similarly pulled out of the project.
According to both entities, by the “time the [state court] matter was resolved” on May 21, 2021,
the die was already cast, as “it was too late” for either entity to continue with the project. R. 57-
55, PageID 1100; R. 63-10, PageID 1219. With the exit of these potential tenants, Rubicon’s
lender refused to disburse any funds and the project collapsed.
Yet Rubicon’s saga with Pontiac government was not over. One of Rubicon’s managing
members, Joseph Brown, was also the managing member of a separate company called Browne
Design Consultants (BDC). BDC provided design services for developers, including for a
developer called SK Properties. In August 2022, SK’s principal met with Pontiac Mayor Tim
Greimel, a city councilwoman, and the city planning manager to discuss a potential project. At
the meeting, Greimel allegedly told SK that for the project to proceed the developer needed to
sever ties with BDC. SK thereafter ended its relationship with BDC.
C. All of this prompted Rubicon, along with Brown and BDC, to return to state court.
Relying on 42 U.S.C. § 1983, plaintiffs sued the City of Pontiac and Doyle. Rubicon generally
claimed that the delays incurred by the project were either so egregious or discriminatory as to
violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment as well as

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the Fifth Amendment’s Takings Clause. Against the City specifically, Brown and BDC alleged
that the City had violated the First Amendment, retaliating against Brown and BDC for
Rubicon’s earlier state litigation by pressuring SK to end its contract with BDC. Defendants
removed the case to federal court, where discovery proceeded. Ultimately the City and Doyle
moved for summary judgment on all counts, a request the district court granted. Plaintiffs’
timely appeal followed.
II.
We review the district court’s grant of summary judgment to the City and Doyle de novo.
See Walden v. Gen. Elec. Int’l, Inc., 119 F.4th 1049, 1056 (6th Cir. 2024). Summary judgment is
warranted if, viewing the evidence in the light most favorable to the nonmoving parties, the City
and Doyle can show that “there is no genuine issue as to any material fact” and that they are
“entitled to judgment as a matter of law.” Chancellor v. Geelhood, 168 F.4th 388, 394 (6th Cir.
2026) (citation omitted); see also Fed. R. Civ. P. 56(a). If they do so, the burden shifts to
plaintiffs to set forth “specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (citation
omitted). As to this latter stage, “significant probative evidence,” as opposed to conjecture or
conclusory allegations, are needed by the nonmoving parties. Walden, 119 F.4th at 1056–57
(citation modified). We start with the claims Rubicon lodged against Doyle in his individual
capacity before considering the remaining claims against the City.
Doyle contends that the constitutional claims against him fail to overcome his assertion
of qualified immunity. To prove otherwise, Rubicon must make two showings. See Mosier v.
Evans, 90 F.4th 541, 546 (6th Cir. 2024). One, that Doyle violated the Constitution. Id. And
two, that the constitutional right at issue was clearly established at the time of the violation. Id.
We may consider these questions in either order. See Pearson v. Callahan, 555 U.S. 223, 236
(2009). Like the district court, we focus on the first.
Before delving into Rubicon’s specific claims, it is worth pausing to note the somewhat
unusual nature of those claims, which focus on Doyle’s role as to both the Glenwood site zoning
and the applications of Rubicon’s potential tenants Pharmaco and Family Rootz to operate

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medical marijuana businesses there. To the extent Rubicon’s claims hinge on Doyle’s treatment
of Pharmaco and Family Rootz, those appear to be legal harms suffered by entities other than
Rubicon. For instance, Rubicon’s due process and takings claims concern, at least in part, the
delays that resulted in reviewing the potential tenants’ applications, whereas Rubicon’s equal
protection claim focuses on how Pharmaco and Family Rootz were treated differently than other
medical marijuana permit seekers.
Rubicon’s assertion of a nonparty’s constitutional claims raises a few distinct strands of
modern standing doctrine. Start with third party standing—the principle that a “plaintiff
generally must assert his own legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Typically, a
plaintiff like Rubicon seeking to vindicate the rights of its tenants would need to establish that it
has a sufficiently “close relationship with the person who possesses the right” and that “there is a
hindrance to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S.
125, 130 (2004) (citation modified). At the same time, the third-party standing doctrine is
grounded in prudential concerns and does not implicate our jurisdiction under Article III. See
June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2117–18 (2020), abrogated on other grounds
by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); id. at 2139 n.4 (Roberts,
C.J., concurring in the judgment). But see id. at 2145 (Thomas, J., dissenting) (“The rule against
third-party standing is constitutional, not prudential.”). And prudential standing arguments can
be forfeited. See United States v. Knipp, 138 F.4th 429, 433 n.1 (6th Cir. 2025). But see Fair
Elections Ohio v. Husted, 770 F.3d 456, 461 n.2 (6th Cir. 2014) (maintaining a court can raise
third-party standing sua sponte, but doing so in a context where the plaintiffs also lacked Article
III standing). With defendants declining to make a standing argument here, we can avoid this
issue and conclude the City and Doyle forfeited any argument as to third party standing.
Getting past the third-party standing issue does not relieve Rubicon of its obligation to
independently establish its own Article III standing to pursue its future tenants’ claims. Ass’n of
Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 547 (6th Cir. 2021). And, as Article III
standing is a jurisdictional requirement, we must independently verify its existence. See Burt v.
Playtika, Ltd., 132 F.4th 398, 406 (6th Cir. 2025). Yet we see little problem with Rubicon’s

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ability to demonstrate (1) an injury that is (2) attributable to defendants’ conduct and
(3) redressable by the requested relief. FDA v. All. for Hippocratic Med., 144 S. Ct. 1540, 1555
(2024). The first and third prongs are plainly satisfied here, as Rubicon has suffered an
economic injury from the collapse of the Glenwood project that would be remedied by a
damages award. See Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 462–64 (2017). A slightly
harder question is whether Rubicon’s economic injury is traceable to any violations of its future
tenants’ rights. As the Supreme Court has recently reminded us, in cases where a plaintiff is not
the “object of a government regulation” traceability depends on how the party that is the object
will predictably react to the government action. See Diamond Alternative Energy, LLC v. EPA,
145 S. Ct. 2121, 2134 (2025). And, in this setting, we think a “commonsense economic
inference[]” is that an unlawful interference with a tenant’s license needed to operate a business
at its landlord’s property will predictably cause “downstream” “economic injuries” to the
landlord. Id. at 2136–38. Put another way, vindicating the tenants’ rights “likely (not certainly,
but likely) would make a difference for” Rubicon because, with permits, the tenants “would
likely” pay Rubicon rent. Id. at 2137. Given all this, we see no need to parse Rubicon’s claims
based on whose constitutional rights are directly implicated; Rubicon has Article III standing to
pursue its claims against Doyle, so we proceed to the merits.
A. Due Process Claims. We start with Rubicon’s allegation that Doyle violated the
Fourteenth Amendment’s Due Process Clause. That familiar provision prohibits governmental
deprivations of “life, liberty, or property, without due process of law.” See U.S. CONST. amend.
XIV, § 1. While the amendment’s text concerns the “process” owed to individuals when
suffering such deprivations, the clause has also been construed to protect against “certain
government actions regardless of the fairness of the procedures used to implement them.”
Daniels v. Williams, 474 U.S. 327, 331 (1986). Yet no matter the exact nature of the due process
claim, Rubicon must show a deprivation of a constitutional right—here, a property interest.
Green Genie, 63 F.4th at 526. Specifically, Rubicon asserts that Doyle pushed a frivolous legal
argument that medical marijuana growers and processors could never operate outside Pontiac’s
overlay zone, and thereby delayed the project and deprived the developer and potential tenants of

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their interests in having medical marijuana facilities operate at Glenwood Plaza. All of this
raises a threshold question of what constitutes “property” under the Fourteenth Amendment.
We know that, to claim a property interest protected by the Fourteenth Amendment, a
plaintiff needs more than an “abstract need or desire” or “unilateral expectation” of some
property right. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). There is
likewise no protected entitlement in an interest that “government officials may grant or deny . . .
in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005); see, e.g., Med
Corp. v. City of Lima, 296 F.3d 404, 411 (6th Cir. 2002) (no property interest because city code
failed to provide an “explicit guarantee” as to the benefit awarded). Rather, a property interest
requires “a legitimate claim of entitlement,” one that “stem[s] from an independent source such
as state law.” Roth, 408 U.S. at 577.
Here, neither Rubicon nor its potential tenants possessed a “legitimate claim of
entitlement” in using the Glenwood site for medical marijuana cultivation or processing prior to
when its injuries were inflicted in May 2021. Pontiac does not award zoning and permitting
allowances for medical marijuana businesses as a matter of right. Quite the opposite. Pontiac’s
regime requires a number of regulatory hoops before a medical marijuana business can operate in
the City, with each step in the process contingent on the subjective judgment of City officials on
whether to award a zoning change or a license. See Pontiac, Mich., Zoning Ordinance, art. 2, ch.
2, § 2.204; id. art. 6, ch. 8, § 6.802 (general zoning changes); id. art. 3, ch. 11, § 3.1106–3.1107,
art. 6, ch. 3, § 6.302–6.303 (SEPs); Pontiac, Mich., Municipal Code, ch. 26, art. XXX, § 26-1498
(licensing). For instance, in reviewing an SEP application to operate outside the overlay district,
City officials consider the project’s “impact” on surrounding neighborhoods and its effect on the
“public welfare of the community.” See Pontiac, Mich., Zoning Ordinance, art. 3, ch. 11,
§ 3.1107(A), (E). Likewise, securing a license to operate a medical marijuana business depends
on the city clerk’s assessment of the applicant’s compliance with 31 different requirements, from
whether the applicant adequately describes the economic benefits of the facility to the City to
whether the applicant’s plans to cultivate marijuana comport with City rules. Pontiac, Mich.,
Municipal Code, ch. 26, art. XXX, § 26-1498. Far from providing an “explicit guarantee” to
operate a medical marijuana business in Pontiac, see Med Corp., 296 F.3d at 411, the City’s

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ordinances go so far as to disclaim any individual right or entitlement in a permit, Pontiac, Mich.,
Municipal Code, ch. 26, art. XXX, § 26-1499(i). Given the breadth of what City officials were
allowed to consider and the capacious metrics by which they could gauge a zoning or a permit
request, “[i]t is difficult to imagine a more flexible standard.” See Biser v. Town of Bel Air, 991
F.2d 100, 104 (4th Cir. 1993) (Wilkinson, J.) (assessing rules requiring consideration of a
requested zoning exception’s impact on the town’s “general welfare” in light of “eighteen
separate factors”); Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir.
1992) (rejecting notion that plaintiff was entitled to a zoning change when such a change was
made contingent on subjective findings about the desirability of the proposed use). Because City
officials “retain[ed] discretion” in allowing medical marijuana facilities to operate at Glenwood
Plaza, neither Rubicon nor its tenants had any cognizable interest in obtaining such benefits from
the City. See Williams v. City of Detroit, 54 F.4th 895, 899 (6th Cir. 2022).
Rubicon responds that when the City Council approved a resolution to rezone the
Glenwood property to industrial use and executed the Conditional Rezoning Agreement
memorializing the zoning change, the developer’s interests in using the property for medical
marijuana purposes evolved into an entitlement. True, once a discretionary zoning change has
been conferred, a property interest may sometimes exist. See EJS Props., LLC v. City of Toledo,
698 F.3d 845, 856 (6th Cir. 2012). But where a property owner can only demonstrate that it
satisfied “certain minimum, mandatory” thresholds needed for land use approval, with further
authorizations tied to a city officials’ discretion still pending, no property interest exists. See
Silver, 966 F.2d at 1036. That latter rule aptly describes this case. The January 2020 zoning
change was isolated to rezoning the Glenwood site to allow for industrial use. Many steps
remained to secure authorization to operate medical marijuana businesses at Glenwood Plaza.
Nothing in the zoning change or the Conditional Rezoning Agreement purported to eliminate
those remaining steps. Instead, the agreement envisioned Rubicon continuing to pursue the
“necessary permits” for the project. R. 57-10, PageID 772–73. Confirming as much, City
officials, in informing Rubicon about the approval of its initial zoning change, reminded the
developer that medical marijuana permits for each facility operating at Glenwood as well as an
SEP for the site were still needed. So even with the initial rezoning hurdle out of the way,

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Page 14
Rubicon’s right to develop the property for medical marijuana business purposes remained at the
discretion of the City. Stated another way, the hopes that marijuana businesses would eventually
operate at Glenwood Plaza were just that—entirely aspirational and contingent on further
discretionary decisions by the City—leaving the developer well short of a property interest
cognizable under the Due Process Clause. See Silver, 966 F.2d at 1036; Lifestyle Cmtys., Ltd. v.
City of Worthington, 165 F.4th 1013, 1027 (6th Cir. 2026); cf. Hearts Bluff Game Ranch, Inc. v.
United States, 669 F.3d 1326, 1332 (Fed. Cir. 2012) (“[R]elying on representations by [the
government] in the hope that the government will grant a discretionary [benefit] does not create a
compensable property interest.”).
Yet, says Rubicon, a broader interest is at stake—namely, that defendants deprived the
developer of its property interest in its ownership of Glenwood Plaza, for which it had
expectations of obtaining rental income from its potential tenants. These generalized interests,
however, do not fit the governing legal framework. Take Rubicon’s base interest in the property
itself. In cases where a plaintiff alleges a due process violation stemming from a thwarted
attempt to obtain governmental approval for a particular use for real property, we have long
rejected the argument that the “only property interest requirement” necessary to demonstrate a
protected entitlement “is ownership of land.” Triomphe Invs. v. City of Northwood, 49 F.3d 198,
201 (6th Cir. 1995). Instead, we ask a more specific question: whether the plaintiff had a
legitimate claim of entitlement in the underlying governmental benefit. Id.; Braun v. Ann Arbor
Charter Township, 519 F.3d 564, 573 (6th Cir. 2008) (“[T]o establish a property right in a future,
rezoned land use, an individual must point to some policy, law, or mutually explicit
understanding that both confers the benefit and limits the discretion of the City to rescind the
benefit.” (citation modified)); see, e.g., Silver, 966 F.2d at 1036 (describing the plaintiff’s
“property interest” in the “use of the undeveloped parcel as a condominium complex” and then
applying the Roth entitlement test). Any other approach would nullify the legions of cases that
analyze zoning or permitting challenges under the Roth entitlement test. After all, if property
ownership alone is sufficient to trigger the due process inquiry, there would be no need to fuss
with any purported property interest in the underlying zoning change or permit. Instead, we
would skip straight to the question of whether there has been a deprivation. But that will not do.

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No. 25-1631 Rubicon Real Estate Holdings v.
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Page 15
As we have explained, Rubicon’s interest in the underlying activities its tenants sought to
undertake—and the rent and income generated from those activities—rested on discretionary
government approvals. See EJS Props., LLC, 698 F.3d at 858. Accordingly, Rubicon’s due
process claims necessarily fail.
B. Takings Claim. With Rubicon’s due process claims resolved, we turn to its related
takings claim against Doyle. The crux of Rubicon’s argument is that Doyle “claim[ed] that the
zoning ordinance did not permit medical marijuana facilities on the Glenwood Property” and
thereby delayed the City’s zoning and permitting approvals and “effectively destroyed Rubicon’s
entire developmental project,” amounting to a compensable taking. Appellants’ Br. at 24, 26.
Rubicon’s claim brings into view the Takings Clause of the Fifth Amendment, which, as applied
to the states through the Fourteenth Amendment, prohibits the government from taking “private
property” for “public use, without just compensation.” Novak v. Federspiel, 140 F.4th 815, 820
(6th Cir. 2025) (per curiam) (first quoting U.S. CONST. amend. V; and then citing Sheetz v.
County of El Dorado, 144 S. Ct. 893, 899 (2024)). A takings claim necessarily requires proof of
a cognizable property interest as well as a government taking of that interest without just
compensation. See Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 609 (6th Cir.
2016).
1. Property Interest. The property interest required to support a takings claim differs
from that required for a due process claim. Even so, Rubicon’s mere interest in owning the
Glenwood site does not “automatically establish[] the property interest needed to pursue its
takings claim.” See Andrews v. City of Mentor, 11 F.4th 462, 473 (6th Cir. 2021). In some
cases, assessing a claimed property interest may turn on a “searching inquiry” into “background
principles” of state law and the “nature of the land use proscribed” to “determine whether the
plaintiff actually held the property interest that [it] claim[s] to have been taken.” Id. (citations
omitted). As neither party’s briefing attempted to aid us in that inquiry, we will assume for
today’s purposes that, as to the takings claim, Rubicon has a sufficient property interest through
its ownership of Glenwood Plaza. Doing so allows us to proceed to address whether any delay
created by Doyle amounted to a taking. See Lifestyle Cmtys., Ltd., 165 F.4th at 1022.

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Page 16
2.a. Taking. Answering that question requires examining what a taking entails. Given
the recognized “bundle” of legal rights that stem from property ownership (e.g., the right to
possess, use, exclude others from, and dispose of the property), a taking can come in different
forms. Knight v. Metro. Gov’t of Nash. & Davidson Cnty., 67 F.4th 816, 822 (6th Cir. 2023).
Most varieties are not at issue here, so we need not address them.
The chief theory Rubicon advances is that, even if the City’s zoning and licensing rules
are permissible, the delay that Doyle injected into the proceedings amounted to a regulatory
taking. When, then, does a government’s delay in issuing a permit or zoning change amount to a
taking? Seldom, if ever. Built into the “incidents of [property] ownership” is the understanding
that “governmental decisionmaking” takes time, meaning that delays in obtaining approval
before a property can be altered ordinarily does not amount to a taking. Agins v. City of Tiburon,
447 U.S. 255, 263 n.9 (1980), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544
U.S. 528 (2005). Recognizing the understandable frustration with all-too-often belabored
government process, this rule nonetheless makes sense. Requiring compensation “for every
delay in the use of property would render routine government processes prohibitively expensive
or encourage hasty decisionmaking.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.
Agency, 535 U.S. 302, 335 (2002). Nor should federal courts serve as a regular timekeeper over
local governmental approval processes. Cf. Lingle, 544 U.S. at 538; Norton v. Village of
Corrales, 103 F.3d 928, 933 (10th Cir. 1996) (“Federal courts should be reluctant to interfere”
with local land use decisions, as we “do not sit as a zoning board of appeals.” (citation
modified)).
With these understandings in mind, for governmental delay to amount to a taking, the lag
must be “extraordinary.” Agins, 447 U.S. at 263 n.9. In making that assessment, we consider the
length of the delay, any bad faith on the part of the government, and any delay that Rubicon
caused. See Richmond Rd. Partners, LLC v. City of Warrensville Heights, No. 24-3502, 2025
WL 737342, at *3 (6th Cir. Mar. 7, 2025).
No extraordinary delay occurred here. Recall that Rubicon’s claim turns on Doyle
purportedly throwing sand in the gears of the Glenwood project by maintaining (at least for a

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Page 17
time) that medical marijuana facilities could not exist outside of the City’s overlay district. See
Appellants’ Br. at 24. While the record is not entirely clear as to when Doyle began pressing the
point, he seems to have first articulated his concerns in late 2020 or early January 2021. It is also
unclear as to when he relented. He seemed to have relented a few weeks later, on January 29,
2021, when he declined to reject any pending licenses on zoning grounds and suggested that
Rubicon just needed to apply for an SEP. Yet he re-raised his concerns at the City Council
meeting on February 16. Regardless, Doyle’s position apparently did not have much sway on
the Planning Commission, as it granted Rubicon’s SEP, which allowed for medical marijuana
operations outside the overlay district. We likewise lack evidence that Doyle pressed the zoning
argument in any other way that slowed the project. Instead, he seems to have focused on other
concerns with the permitting applications before providing approvals in May and June 2021.
In the end, Doyle’s “refus[al] to recognize” that medical marijuana operations could
occur outside the overlay zone at most delayed the project a couple of months. Appellants’ Br.
at 24. That is far from an “extraordinary” delay—courts have “condoned” far longer ones.
Wyatt v. United States, 271 F.3d 1090, 1098 (Fed. Cir. 2001) (citing examples of “approximately
eight years,” “forty months,” and “sixteen months” as not constituting a taking); Richmond Rd.
Partners, LLC, 2025 WL 737342, at *4 (recognizing that “[i]n the bureaucratic world” a delay of
one year is not extraordinary). Delay was plainly expected, as the City took six months to
approve its initial zoning change to allow for industrial use at Glenwood Plaza, a delay over
which Rubicon voices no concerns. Doyle’s understanding of the City’s ordinances, we
recognize, may not have been entirely sound. But nothing suggests that Doyle’s actions were
done in bad faith. Cf. U.S. ex rel. Wall v. Circle C Constr., LLC, 868 F.3d 466, 471 (6th Cir.
2017) (recognizing bad faith to exclude a “honest mistake as to one’s rights or duties” and to
instead require some “interested or sinister motive” (citation modified)). Finally, as the district
court recognized, many of the delays in the licensing and permitting process were due either to
Rubicon dragging its feet in applying for the SEP or to various admitted deficiencies in
Rubicon’s future tenants’ license applications. See R. 69, PageID 1321–22. All told, the delay
here is about what one might expect in dealing with local government bureaucracy and is far
from an actionable deprivation under the Takings Clause.

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Page 18
b. Rubicon views the delay as far longer and far more problematic. To that end, it
emphasizes that Doyle received Pharmaco’s applications in August 2019 yet did not approve
them until June 2021, nearly two years later. Rubicon’s position falls short on a few fronts,
beginning with the fact that, as already explained, even a 22-month delay pales in comparison to
anything close to what courts have deemed to be extraordinary. See Wyatt, 271 F.3d at 1098.
Rubicon’s portrayal of the record is similarly lacking. The developer presents no
evidence that the various deficiencies identified in either of its tenants’ applications were
unjustified or could have been ignored by Doyle. In any event, Rubicon’s takings claim was
never premised in district court (nor here) on Doyle dawdling during his 2019 review of the
permitting applications. Instead, Rubicon’s argument was that Doyle began slow walking the
permitting and zoning on account of his understanding of the overlay district rules, a view he
seemingly first pressed in late 2020. Rubicon may not bootstrap to its claim unrelated delays for
which Doyle cannot be blamed.
Shifting gears, Rubicon turns its attention to the sizable proposed investment in
Glenwood Plaza, maintaining that “regardless of length,” the economic effects of the delay—the
asserted elimination of all value in the property—are sufficiently sizeable to amount to a taking.
Appellants’ Br. at 26. The record, however, does not support that claim. For example, no
evidence shows the Glenwood site is now worthless or cannot be developed for other purposes.
Nor is there evidence that Doyle’s temporary advocacy of a strict understanding of the overlay
zone for a few months is what led to the project’s collapse. The tenants’ affidavits attest that the
process as a whole simply dragged on to the point that by May 2021, it was just “too late” to
continue with the project. R. 57-55, PageID 1100; R. 63-10, PageID 1219. Either way, any
investment-backed expectations Rubicon had in the property needed to be “reasonable” in
relation to its regulatory taking theory. See Raceway Park, Inc. v. Ohio, 356 F.3d 677, 684–85
(6th Cir. 2004). In other words, Rubicon had to expect the few months of delay as the City
appropriately resolved the various complex zoning and permitting questions surrounding a multi-
million dollar development.

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Nor is it extraordinary that Rubicon had to resort to state court litigation to get Doyle to
move on the applications. While we typically expect public officials to carry out their duties
without a court ordering as much, we generally reject the notion that delays created by state court
litigation amount to a taking, as “the time necessary for review, including judicial review,” is
simply a normal delay in the world of government. Richmond Rd. Partners, LLC, 2025 WL
737342, at *3 (citing Edward H. Ziegler, Jr., First English and normal delays—Illegal permit
denial and temporary takings, 1 Rathkopf’s The Law of Zoning and Planning § 6:28 (4th ed.)).
We do not discount the prospect that significant and long-term delays of a project caused
by government foot dragging could amount to a taking. See Tahoe-Sierra Pres. Council, Inc.,
535 U.S. at 356 (Thomas, J., dissenting) (maintaining that a “temporary restriction” that
prohibited all land use for half a decade can function akin to a Lucas taking because “[i]n the
long run we are all dead” (quoting J. Keynes, Monetary Reform 88 (1924))). That said, today’s
case does not nearly approach that situation. For better or worse, an “incident[] of ownership” in
pursuing an ambitious development in a “bureaucratic world” is the expectation that the project
will not occur overnight and will need sufficient review by public officials. See Agins, 447 U.S.
at 263 n.9; Richmond Rd. Partners, LLC, 2025 WL 737342, at *4. Here, no taking resulted from
the relatively short delays created by Doyle.
C. Equal Protection Claim. Rubicon’s remaining claim against Doyle maintains that the
interim clerk violated the Equal Protection Clause of the Fourteenth Amendment. Rubicon
presses a class-of-one theory. To prevail, the developer must show that (1) Doyle “intentionally
treated” either Rubicon or its potential tenants “differently from others similarly situated”; and
(2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (per curiam). At the outset, all agree that Rubicon lacks any direct
evidence that Doyle engaged in intentional discrimination. That leaves Rubicon to maintain that
circumstantial evidence exists from which a jury could infer that Doyle’s conduct was driven by
intentional irrationality toward those involved with the Glenwood development. In this setting, it
bears noting, we require circumstantial evidence beyond mere differential treatment between a
plaintiff and a comparator; were the rule otherwise, any erroneous, unequal application of the
law could be the basis for a class of one claim. See Green Genie, 63 F.4th at 527–28. That

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leaves Rubicon to show that any adverse treatment by Doyle was a “stark outlier from an
otherwise consistent pattern of favorable treatment in similarly situated cases.” Id. at 528
(quoting SECSYS, LLC v. Vigil, 666 F.3d 678, 689 (10th Cir. 2012) (Gorsuch, J.)). So Rubicon’s
steep hurdle at step one of an Olech claim requires significant evidence of relevant comparators
whose treatment by Doyle was unambiguously different than those involved with the Glenwood
development. Id.
How does Rubicon fare on this front? Much of its briefing before both the district court
and this Court merely rehashes similar complaints to those undergirding its due process and
takings claims. In particular, Rubicon protests Doyle’s understanding of the overlay district
rules and complains that Pharmaco’s and Family Rootz’s permits lingered for years before
approval. Largely absent from Rubicon’s submissions, however, is any evidence of relevant
comparators. See Andrews, 11 F.4th at 481 (Larsen, J., concurring in part and dissenting in part)
(observing that the “similarly situated” requirement must go beyond establishing the plaintiff’s
“side of the equation” and instead “[w]e must also know something about” the comparators).
For instance, there is nothing in the record showing that Doyle treated Rubicon differently than
another developer similarly seeking to establish a medical marijuana commercial venture outside
the City’s overlay district. See Loesel v. City of Frankenmuth, 692 F.3d 452, 462–63 (6th Cir.
2012) (requiring an assessment of “relevant similarity” by looking at the “facts and context of
the case” (citation modified)); see also Anders v. Cuevas, 984 F.3d 1166, 1180 (6th Cir. 2021)
(similar). And there is scant evidence of any relevant comparators to Pharmaco or Family Rootz,
such as a medical marijuana business that obtained a permit in a far faster timeframe than those
entities seeking to operate at Glenwood Plaza. Rubicon’s only evidence that even references a
potential comparator is what Doyle provided at summary judgment. And that evidence—letters
Doyle sent to other permit seekers rejecting their applications for deficiencies similar to those in
Pharmaco’s or Family Rootz’s applications—understandably will not suffice. Those items, after
all, do not show any similarly situated entity that received favorable treatment from the City
relative to Rubicon’s potential tenants. See Green Genie, 63 F.4th at 528.
Rubicon disagrees. To begin, it faults Doyle and the City for not producing comparator
evidence, for example, other businesses that had to wait as long as Pharmaco did to obtain its

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No. 25-1631 Rubicon Real Estate Holdings v.
City of Pontiac, Mich.
Page 21
license. But in many respects, Rubicon’s criticism gets things backwards, both procedurally and
substantively. As a matter of procedure, consider the dynamics at the Rule 56 stage. There,
Doyle had the initial burden to show that there was no dispute of material fact. Doyle did so. He
maintained that “there is no evidence that Family Rootz or Pharmaco were treated differently
than any other applicant, much less that Rubicon was treated differently than any other property
owner attempting to lease property to a marijuana business.” See R. 57, PageID 613; see also
Hall v. Navarre, 118 F.4th 749, 756 (6th Cir. 2024) (observing that the initial burden of
production at summary judgment is “little more than a formality” and that “a movant need only
assert the lack of any genuine disputes of material fact in the record” (citation modified)). At
that point, the burden shifted to Rubicon to provide “significant probative evidence” such as
evidence of disparate treatment of a comparator showing the need for trial. Walden, 119 F.4th at
1056–57 (citation modified). On that metric, Rubicon came up short.
And then consider substance. We generally presume that state actors properly discharge
their official duties, meaning we assume that if Doyle subjected Rubicon and its potential tenants
to lengthy delays, he did the same for similarly situated entities. Stemler v. City of Florence, 126
F.3d 856, 873 (6th Cir. 1997). To overcome the presumption of regularity, Rubicon (not Doyle)
needed to present “clear evidence to the contrary,” which it failed to do. Id.
Having properly framed the summary judgment inquiry, we agree with the district court
that Rubicon failed to carry its burden. Focusing on the letters Doyle sent to other permit
seekers, Rubicon complains that others were allowed more time to repair deficiencies in their
applications than was Pharmaco. This attempt to manufacture disparate treatment is too clever
by half, as it is a reversal from the central thesis of Rubicon’s equal protection claim. Instead of
complaining that Doyle slow walked the Glenwood permits relative to other permit seekers,
Rubicon now complains that Doyle expedited review of Pharmaco’s application. Nor, we note,
has Rubicon established that the entities at issue are relevant comparators to Pharmaco, such that
any differences in timing could only be due to irrationality on Doyle’s part. See EJS Props.,
LLC, 698 F.3d at 866 (“Gaps in time and context may suggest a change in policy rather than
differential treatment.” (citation modified)). And, like the district court, we fail to see how
Pharmaco was injured by the disparate treatment, in that all agree it complied with the shorter

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deadline. See R. 69, PageID 1308. In any event, even if there was a discrepancy between the
time Doyle provided to Pharmaco relative to another similarly situated medical marijuana
business seeker, Doyle’s treatment of Pharmaco was not the kind of “stark outlier” required to
show intentional discrimination. See Green Genie, 63 F.4th at 528. Meanwhile, the record
shows that Family Rootz received a more generous deficiency response period. All told,
Rubicon has provided no evidence of intentional discrimination, so we affirm the dismissal of
the equal protection claim against Doyle.
III.
Having affirmed the dismissal of the claims lodged against Doyle, we turn to the claims
against the remaining defendant, the City of Pontiac. Seeking to hold a municipality liable under
42 U.S.C. § 1983 raises distinct issues. A municipality is a “person” under § 1983 that can be
held liable for its own illegal acts, such as when a governmental body has a policy or custom that
“itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” See Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 692 (1978)); see also City of Canton v. Harris, 489 U.S. 378, 389 (1989).
But a municipality cannot be held liable simply because one of its employees has violated the
Constitution. See Monell, 436 U.S. at 694. Instead, the party must connect the employee’s
conduct to a municipal policy or custom. Gambrel v. Knox County, 25 F.4th 391, 408 (6th Cir.
2022). A plaintiff has four discrete avenues for proving the municipal policy or custom
requirement: (1) a legislative enactment or policy; (2) an action taken by an official with final
decisionmaking authority; (3) a policy of inadequate training or supervision; or (4) a custom of
tolerance or acquiescence of federal rights violations. Thomas v. City of Chattanooga, 398 F.3d
426, 429 (6th Cir. 2005). For any chosen path, a plaintiff must then satisfy § 1983’s “rigorous”
causation standard—it must show that it was the municipality’s unconstitutional policy or
custom (and not just the employee’s action) that caused the plaintiff’s injury. See Pineda v.
Hamilton County, 977 F.3d 483, 495 (6th Cir. 2020) (quoting Bd. of Cnty. Comm’rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 405 (1997)). Otherwise, no liability can flow to the municipality.
See Andrews v. Wayne County, 957 F.3d 714, 725 (6th Cir. 2020). These principles resolve the
remaining claims on appeal.

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No. 25-1631 Rubicon Real Estate Holdings v.
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Page 23
A. Rubicon’s Claims Against the City. First up are the due process, takings, and equal
protection claims lodged against the City. Critical here is the fact that all three claims stem from
Doyle’s conduct, not an independent Pontiac policy or custom. Indeed, Rubicon’s theory is that
Doyle expressly ignored the City’s zoning policies in violating the developer’s rights. So with
no underlying constitutional violation by Doyle, these claims cannot proceed against the City.
See Dibrell v. City of Knoxville, 984 F.3d 1156, 1165 (6th Cir. 2021).
B. Brown and BDC’s Claim Against the City. All that remains is the First Amendment
retaliation claim lodged by Brown and BDC against the City. To prevail on their free speech
retaliation claim, Brown and BDC must show that they (1) engaged in constitutionally protected
speech; (2) an adverse action was taken against them; and (3) a causal connection exists between
the speech and the adverse action. See Lemaster v. Lawrence County, 65 F.4th 302, 307 (6th Cir.
2023). Brown and BDC’s theory addresses those elements as follows. One, that Brown (through
his company Rubicon) engaged in constitutionally protected speech by engaging in litigation in
state court in 2021 over the Glenwood development. Two, that Brown and BDC suffered an
adverse action when Pontiac’s mayor, Tim Greimel, more than a year later, successfully
encouraged another developer (SK) to cancel its contract with BDC at the risk of not obtaining
zoning approval for a project. And three, that Greimel’s request emanated from his lingering
bitterness from the Rubicon lawsuit. Brown and BDC add that the City is on the hook for
Greimel’s retaliation because his conduct amounted to a policy that the City “adopted.” R. 63,
PageID 1153. To our mind, there are deep flaws in both the merits and Monell arguments. But
we need not address the merits, for the City cannot be held liable.
Assuming, without deciding, that Brown and BDC can survive summary judgment on
their retaliation claim, they still must link the constitutional violation to a City policy or custom.
See Gambrel, 25 F.4th at 408. An employee’s “single unconstitutional act” may do the trick if it
was “taken by an authorized decisionmaker” of the municipality, meaning that individual had
ultimate authority to establish the underlying policy or custom with respect to the subject matter
in question. See Bible Believers v. Wayne County, 805 F.3d 228, 260 (6th Cir. 2015) (en banc)
(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 483 (1986)). All seem to agree that the
underlying policy at issue was conditioning a zoning change approval upon the act of the

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applicant (here, SK firing BDC). But the Pontiac mayor lacks any final authority over the
rezoning process; the seven-member City Council approves or rejects zoning requests. See
Pontiac, Mich., Zoning Ordinance, art. 6, ch. 8, § 6.802(D); Pontiac, Mich., Home Rule Charter,
art. III, § 3.101. And while the mayor has veto authority over most actions of the City Council,
see Pontiac, Mich., Home Rule Charter, art. III, § 3.112(g), the City Council can override that
veto, id., meaning the veto does not imbue the actor with final decisionmaking authority for
purposes of Monell, see Flagg v. City of Detroit, 715 F.3d 165, 174–75 (6th Cir. 2013) (holding
that an official has “final authority” only if his decisions are “final and unreviewable and are not
constrained by the official policies of superior officials” (citation modified)); see, e.g., Manor
Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991) (holding that mayor was not the
ultimate policymaker with respect to zoning decisions where the city charter provided that the
council could override mayor’s veto of zoning ordinances). Lacking any evidence that the City
Council ever approved of Greimel’s action—at most, only one of the seven council members
was even aware of the mayor’s comments—Brown and BDC simply cannot show a connection
between the City and any unconstitutional act by Greimel.
Brown and BDC do not engage on the limits of the mayor’s power. Instead, they argue
that regardless of whether Greimel was a final decision maker, liability can be imputed to the
municipality under a cat’s paw theory. That theory, more commonly invoked in employment
discrimination cases, allows the illicit “animus” of an individual who influenced the
decisionmaker in certain cases to be imputed to the employer. See Staub v. Proctor Hosp., 562
U.S. 411, 415–16 (2011). Think of a biased subordinate who intentionally manipulates a
clueless boss into taking an adverse action against an employee. See Marshall v. The Rawlings
Co., 854 F.3d 368, 380 (6th Cir. 2017). But there is no evidence here that Greimel influenced
any final decisionmaker to take an adverse action against Brown or BDC. The mayor’s 2022
conversation pressing SK to fire BDC is the extent of the allegation, one that does not involve
the City Council. Nor should we extend the cat’s paw theory into the land of Monell. The
concept of a municipality, through no fault of its own, being held liable for the single act of its
agents sounds a lot like respondeat superior, which Monell expressly forecloses. See Jones v.
City of Hutto, 154 F.4th 332, 342 (5th Cir. 2025) (“[T]he cat’s paw claim is based in agency

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principles, so it is incompatible with Monell’s bar on respondeat superior and unavailable to
Jones.”); Waters v. City of Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2009) (similar). Likewise,
the causation rules for Monell require proof that the municipality, through its “deliberate
conduct,” was the “moving force behind the injury alleged.” See Kovalchuk v. City of Decherd,
95 F.4th 1035, 1038 (6th Cir. 2024) (citation modified). Obliviousness by the boss will not do.
To the extent Brown contends the City Council simply acquiesced in Greimel’s conduct, the rule
remains that a final decisionmaker’s “after-the-fact approval” of a single constitutional violation
by a subordinate is insufficient to establish a Monell claim. Burgess v. Fischer, 735 F.3d 462,
479 (6th Cir. 2013). Which makes sense. With a one-time violation, the employee causes the
underlying harm and the municipality at most gets involved after the fact. Id. (recognizing an
alternative rule would “effectively make” the municipality “liable on the basis of respondeat
superior”); see also Pineda, 977 F.3d at 495 (observing that a municipality can ratify the conduct
of one of its employees only after a pattern of failing to act in response to several prior incidents
of the alleged rights violation).
As a last gasp, Brown and BDC argue that the City forfeited any argument that the mayor
was not a decisionmaker by saving it until its reply brief in district court. But Brown and BDC,
in opposing summary judgment, maintained that a final decisionmaker “adopted” the mayor’s
action, raising the question of who the decisionmaker was as to the underlying zoning decision.
R. 63, PageID 1153. Said another way, it was fair game for the City to reply to arguments made
in Brown and BDC’s response brief. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th
Cir. 2008). At all events, the burden remains with Brown and BDC to demonstrate Monell
liability, whether it be through proving the mayor was a final decisionmaker or some other
avenue. See Burgess, 735 F.3d at 478. That the City waited until its reply brief to challenge the
exact avenue plaintiffs were using to establish Monell liability does not relieve Brown and BDC
of having to prove a basic element of their claim at summary judgment. See United States v. 15
Bosworth St., 236 F.3d 50, 55 (1st Cir. 2001) (“[I]t is a bedrock rule that when there is
insufficient evidence on a particular issue, that issue must be resolved against the party who
bears the burden of proof.” (emphasis omitted)). With no record support satisfying Brown and

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No. 25-1631 Rubicon Real Estate Holdings v.
City of Pontiac, Mich.
Page 26
BDC’s burden on the merits or Monell, the district court did not err in dismissing the final claim
in this suit.
* * * * *
We affirm the judgment of the district court.

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