No Clearly Established Duty for State Tax Officials to Compel Renewed Address Searches After Returned Mail: Fourth Circuit Affirms Qualified Immunity in deWet v. Rollyson

Case: Ann Barclay deWet & Laurence E.T. Smith (as personal representatives of the Estate of Ann Tierney Smith) v. G. Russell Rollyson, Jr.

Court: United States Court of Appeals for the Fourth Circuit

Date: October 2, 2025

Panel: Chief Judge Diaz (author), Judge Niemeyer, and Judge Matthew J. Maddox (sitting by designation)

Disposition: Affirmed (published opinion)

Introduction

This published Fourth Circuit decision clarifies the contours of “clearly established” law in the due process notice context of tax lien and tax deed proceedings. The court held that, as of April 1, 2019, it was not clearly established that a West Virginia deputy commissioner (working in the State Auditor’s Office) was constitutionally required to demand that a private tax-lien purchaser re-check county records for a property owner’s current address after certified and first-class mail notices were returned undeliverable or unclaimed. Accordingly, the official was entitled to qualified immunity from a 42 U.S.C. § 1983 damages claim.

The plaintiffs (the estate representatives of the former property owner, Ann Tierney Smith) argued that the official, G. Russell Rollyson, violated due process by issuing a tax deed after mailings failed, without first requiring the purchaser to perform a renewed address search in county records. The district court agreed that the process was flawed but granted qualified immunity, concluding no clearly established rule imposed that particular duty on the official in 2019. The Fourth Circuit affirmed.

Summary of the Opinion

Key holding: It was not clearly established on April 1, 2019, that a West Virginia deputy commissioner must require a tax-lien purchaser to re-search or re-check county records for a correct mailing address after mail notices to redeem are returned. Therefore, qualified immunity shields the official from § 1983 liability.
Scope of review: The court resolved the case at the “clearly established” prong of qualified immunity without deciding whether the Constitution independently required the additional step plaintiffs urged.
Distinctions: The court distinguished prior authorities, including Plemons v. Gale (which imposed diligence obligations on lien purchasers, not state officials), Jones v. Flowers (which requires additional reasonable steps but eschews a one-size-fits-all formula), and the unpublished O’Neal v. Rollyson decisions (not controlling and factually different because the official there took no further steps at all).
Procedural posture: Summary judgment for the official was affirmed; plaintiffs’ cross-motion was denied as moot in the district court. Plaintiffs did not appeal certain other issues (e.g., “Occupant” mailings and publication).

Factual and Procedural Background

Smith owned real property in West Virginia and failed to pay 2016 real estate taxes. The Mercer County Sheriff sold a tax lien to a private buyer, Ed Boer.
Under the then-governing West Virginia scheme (since repealed in 2022), the lien purchaser prepares a list of persons to receive a notice to redeem, and the State Auditor’s Office handles service of that notice.
Boer’s list identified Ann Smith but did not include her then-current mailing address (which was in two county databases, one publicly available). Certified and some first-class mailings to Smith were returned “Unclaimed,” “Unable to Forward,” and/or “Not Deliverable as Addressed.”
Deputy Commissioner Rollyson opted for personal service (at Boer’s expense) and, when that failed, process servers posted notices at the property and other listed addresses. He did not require Boer to conduct a renewed search of county records for a better address.
After the redemption deadline passed, Rollyson issued Boer a tax deed on April 1, 2019. Smith learned of the deed in late 2020 and sued under § 1983 (and state law). She later settled with Boer (regaining title) and dismissed claims against him. After Smith’s death, estate representatives deWet and Laurence Smith were substituted as plaintiffs.
The district court found the process deficient in part but ruled that the deputy commissioner had qualified immunity because no clearly established law required him to compel a renewed county-records address search before issuing the deed.

Issues Presented

Whether, as of April 1, 2019, clearly established law required a West Virginia deputy commissioner to demand that a tax-lien purchaser re-check county records for a property owner’s address after mail notices were returned undeliverable or unclaimed.
Whether the deputy commissioner was entitled to qualified immunity on the § 1983 due process claim premised on the lack of that step.

Precedents Cited and Their Influence

1) Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)

Mullane establishes the foundational notice standard: due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties and afford them an opportunity to object. It does not demand actual notice; it requires reasonable methods under the circumstances.

2) Jones v. Flowers, 547 U.S. 220 (2006)

Jones addresses tax-sale notice when certified mail is returned unclaimed. The Supreme Court held the State must take additional reasonable steps, if practicable, before selling property. The Court declined to prescribe a fixed sequence of steps and identified examples (regular mail, posting, addressing to “occupant”), while stating the government need not conduct an open-ended search. The Fourth Circuit relies on Jones to reject any per se rule mandating a renewed county-records search by the official. Since Jones recognizes a menu of “reasonable” follow-up options and disclaims an open-ended search requirement, it did not clearly establish the narrow duty plaintiffs claimed.

3) Plemons v. Gale, 396 F.3d 569 (4th Cir. 2005)

Plemons arose under West Virginia’s tax-sale regime and emphasized reasonable diligence in giving notice. The decision underscored that where initial mailings are promptly returned, the party responsible for notice must make reasonable efforts to locate a correct address. Critically, Plemons directed its requirements at the lien purchaser and, on the facts there, indicated that searching publicly available county records was among the reasonable steps that purchaser diligence could require. The Fourth Circuit in deWet stresses that Plemons did not impose a per se rule prescribing exact steps, and that Plemons’ admonition ran to the purchaser, not to state officials like the deputy commissioner. Thus, Plemons did not clearly establish the specific duty plaintiffs asserted against Rollyson.

4) O’Neal v. Wisen (S.D.W. Va. 2017), aff’d sub nom. O’Neal v. Rollyson, 729 F. App’x 254 (4th Cir. 2018) (unpublished)

In O’Neal, the district court denied qualified immunity where the deputy commissioner issued a deed knowing mailed notices were returned but took no additional steps until after the deed issued. The Fourth Circuit affirmed in an unpublished opinion, relying on Jones for the need to attempt reasonable measures before issuing the deed. In deWet, the court explains that unpublished Fourth Circuit decisions cannot clearly establish law for qualified immunity purposes. Moreover, the facts differ: here, the deputy commissioner attempted personal service and posting before issuing the deed. Thus O’Neal neither controls nor bridges the gap to the specific duty urged by plaintiffs.

5) Additional qualified immunity cases cited

Hope v. Pelzer and Ashcroft v. al-Kidd reaffirm that clearly established law can apply in novel factual settings but must be sufficiently clear that every reasonable official would understand the conduct is unlawful.
Franklin v. City of Charlotte, Booker v. S.C. Dep’t of Corr., and related Fourth Circuit authorities outline the sources of controlling authority and the possibility (absent controlling precedent) of a consensus of persuasive decisions—neither of which supported plaintiffs’ position here.

Legal Reasoning

Qualified immunity framework and specificity

The court applies the two-pronged qualified immunity test and resolves the case at the “clearly established” prong.
Defining the right with proper specificity is critical. Rather than the general right to due process notice before deprivation of property, the asserted right must be framed narrowly: whether a deputy commissioner must require a lien purchaser to re-check county records after mailings are returned.

Application to the record

The official took additional steps after mailings failed: he attempted personal service and then had process servers post notices at the property and at other addresses. These steps mirror the kinds of “reasonable” measures Jones suggested as potentially adequate in some circumstances.
No controlling Supreme Court, Fourth Circuit (published), or West Virginia Supreme Court decision clearly established a duty on state officials to compel lien purchasers to conduct another county-records search under these facts.
While Plemons discussed purchaser diligence, it neither imposed a per se stepwise rule nor reassigned the diligence obligation to state officials; its admonitions ran to the purchaser.
O’Neal is unpublished and thus not a source of clearly established law; it is also factually distinct because there the official took no follow-up steps pre-deed.
Given the absence of controlling authority or a consensus of persuasive authority compelling the specific duty plaintiffs articulated, the law was not “sufficiently clear that every reasonable official” would have understood that failing to compel a renewed records search violated due process.

Forfeiture note

At oral argument, plaintiffs reformulated the right as a duty to “cause the local records to be checked again.” The court deemed that formulation forfeited because it was not developed in the opening brief and only glancingly referenced in reply. The court nevertheless indicated the outcome would not change under either formulation.

Impact and Implications

Immediate effects

For state officials in the Fourth Circuit: Where mail notice in a tax redemption context fails, officials who take additional reasonable steps like personal service and posting are unlikely to face § 1983 damages liability premised on not compelling a renewed county-records address search—at least for conduct prior to April 1, 2019, and absent controlling precedent to the contrary. The decision underscores that unpublished circuit opinions cannot “clearly establish” duties for qualified immunity.
For lien purchasers: Plemons remains a cautionary marker: diligence obligations discussed there apply to purchasers. Searching publicly available county records and other reasonable measures may be required when initial mailings fail. This decision does not dilute purchaser obligations; it delineates the boundary of state official liability.
For property owners: Claims against private lien purchasers may remain viable under Plemons-type reasoning, even where claims against state officials are barred by qualified immunity. Maintaining accurate address information with county offices remains crucial.

Broader doctrinal significance

Qualified immunity clarity: The opinion is a strong application of the “clearly established” requirement, emphasizing precise right-definition and the limits of relying on unpublished decisions to overcome immunity.
No one-size-fits-all notice rule: The court reads Jones as endorsing a flexible, circumstance-dependent approach, with multiple acceptable follow-up options and no general duty to conduct open-ended searches.
Role differentiation: It reinforces the division of labor in West Virginia’s (pre-2022) tax-sale process: the lien purchaser bears primary diligence obligations to supply accurate addresses; the State facilitates service and may take additional steps but is not per se required to command a renewed records search absent clear law.
Legislative context: West Virginia’s cited statutory provisions were repealed in 2022. While the structure has changed, this decision will influence litigation over pre-2022 events and may inform how other jurisdictions allocate and codify notice responsibilities.

Complex Concepts Simplified

Tax lien and tax deed: When property taxes go unpaid, a lien can be sold to a purchaser, who may later obtain title (a tax deed) if the owner does not redeem (pay the delinquent amount plus costs) within a statutory period.
Notice to redeem: The formal notice that informs the owner (and others with interests) of the lien sale, the amount needed to redeem, and the deadline to redeem.
Due process notice standard: The Constitution doesn’t require actual receipt; it requires that the government use methods reasonably calculated, in the circumstances, to inform interested parties.
Qualified immunity: A defense for government officials sued under § 1983 that shields them from suit unless they violated a constitutional right that was “clearly established” at the time of their conduct.
Clearly established law: Law is “clearly established” when existing precedent—usually from the Supreme Court, the relevant circuit, or the state’s highest court—makes the rule so clear that every reasonable official would understand the conduct is illegal. Unpublished appellate decisions generally do not suffice.
State action (in this context): Even though a private purchaser is involved, the tax-sale process involves significant state assistance, making constitutional constraints applicable.

Practical Guidance

For state tax officials: Document all steps taken after returned mailings (e.g., attempts at personal service, posting). While this decision recognizes no clearly established duty to compel renewed county-records searches, taking reasonable follow-up steps remains essential for due process compliance and for avoiding litigation.
For lien purchasers: Proactively conduct and document searches of publicly available county records for current addresses; consider contacting mortgagees, tenants, or using other reasonable resources, consistent with Plemons and Mullane/Jones principles.
For litigators challenging notice: Define the right at the appropriate level of specificity and identify controlling, published authority (or a robust consensus) imposing the specific duty at issue. Preserve arguments in the opening brief to avoid forfeiture.
For property owners: Ensure mailing addresses are current in county tax and land records; promptly respond to posted notices and consider monitoring public tax records if delinquencies arise.

Unresolved Questions and Future Litigation

Whether, as a matter of first-principles due process (separate from the clearly established inquiry), a state official must in some circumstances require renewed address searches before issuing a tax deed remains open; the court did not decide that merits question.
How revised West Virginia statutes (post-2022) or other states’ regimes allocate responsibility for address verification may become a focus of future challenges and legislative refinements.
What constellation of follow-up steps (e.g., regular mail, posting, “Occupant” mail, database checks) suffices under Jones in particular factual contexts will continue to be litigated.

Conclusion

The Fourth Circuit’s published decision establishes that, as of April 1, 2019, there was no clearly established constitutional duty requiring a West Virginia deputy commissioner to compel a lien purchaser to re-check county records for a property owner’s address after mail notices were returned. By resolving the case at the clearly established prong, the court preserves the flexible, circumstance-specific approach to due process notice endorsed by Mullane and Jones while underscoring the limits of official liability under qualified immunity when specific duties have not been clearly articulated by controlling precedent. For future cases, the opinion draws a clear line between purchaser diligence obligations (as discussed in Plemons) and the scope of state official exposure, while leaving room for legislatures and courts to define more precise notice protocols in tax-sale procedures.