Brandon Fulton v. Fulton County Board of Commissioners

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12041

____________________

BRANDON FULTON,

Plaintiff-Appellant,

versus

FULTON COUNTY BOARD OF COMMISSIONERS,

Defendant-Appellee,

PAUL L. HOWARD, JR.,

Esq.; in his individual capacity, et al.,

Defendants.

____________________

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2 Opinion of the Court 22-12041

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-01936-SCJ

____________________

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and ABUDU,

Circuit Judges.

ROSENBAUM, Circuit Judge:

In Greek mythology, the Greek gods condemned Tantalus

to eternal hunger and thirst, all while forcing him to forever stand

in a shallow pool of water under a tree with low-hanging fruit.

Though the remedy for Tantalus’s hunger and thirst was right at

hand, he could not take advantage of it. The water receded when

Tantalus bent down to drink, and the fruit rose to just above his

grasp when Tantalus tried to reach it.

Our Founders did not do to us what the Greek gods did to

Tantalus. Our Constitution explicitly promises exactly two reme-

dies: “just compensation” if the government takes our property,

and the writ of habeas corpus if it tries to take our lives or liberty.

And the Constitution delivers directly on each. It doesn’t taunt us

by naming these remedies but then holding them out of reach, de-

pending on the whims of the legislature.

So even if Congress doesn’t legislate a procedure by which a

person can obtain one of these remedies, the Constitution’s prom-

ise is not illusory. A person can bring a case directly invoking either

constitutional remedy.

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This case involves the “just compensation” remedy. Bran-

don Fulton alleges that Fulton County took his horses without jus-

tification and without paying for them. He asserts that the Fifth

Amendment demands the County pay him “just compensation”

for the taking of his property. See U.S. CONST. amend. V. So he

seeks to sue to recover what he says the County owes him under

the Constitution.

The problem: Congress has not provided him with a cause

of action to secure “just compensation” in federal court. Fulton

initially tried to bring an action under 42 U.S.C. § 1983. That stat-

ute allows suits against municipalities who, through official policies

or customs, violate the Constitution. See Monell v. Dep’t of Soc.

Servs. of N.Y.C., 436 U.S. 658, 694 (1978). But because Fulton is un-

able to plead an official policy or custom under which the County

took his horses, he can’t proceed under that statute—even though

the Takings Clause doesn’t require a plaintiff to clear that bar to be

entitled to “just compensation.”

So Fulton seeks a plan B. He asks to amend his complaint to

sue directly under the Takings Clause itself.

Whether the Takings Clause contains a cause of action that

allows a litigant to recover “just compensation” in federal court

presents an open question. In DeVillier v. Texas, the Supreme Court

confirmed that its “precedents do not cleanly answer the ques-

tion . . . .” 601 U.S. 285, 292 (2024). Yet the Court also confirmed

that “the absence of a case relying on the Takings Clause for a cause

of action does not by itself prove there is no cause of action. It

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4 Opinion of the Court 22-12041

demonstrates only that constitutional concerns do not arise when

property owners have other ways to seek just compensation.” Id.

Now, after careful review of the text, structure, and history of the

Constitution, we conclude that the Takings Clause does directly

authorize suit.

The Dissent responds by saying we are “creat[ing] a new

right of action” and leaving “constitutional wreckage in the wake.”

Diss. Op. at 35. But its answer that the Takings Clause includes no

direct cause of action ignores the original public meaning of the

Clause and transforms the Constitution’s promise of “just compen-

sation” into nothing more than a Tantalus-type taunt. Most re-

spectfully, we don’t think that’s “judicial humility,” see id. at 35; we

think it’s judicial abdication. We have a duty to apply the Consti-

tution as written. So we respectfully decline to read out of the Con-

stitution the relief it expressly promises for taken property.

The Framers of the Fifth and Fourteenth Amendments pro-

vided a real remedy in “just compensation” for government tak-

ings. They guaranteed the ability to recover “just compensation”

directly under the Constitution. So we hold that Fulton’s proposed

amendment to his complaint is not futile.

I. BACKGROUND

This case comes to us on appeal from a denial of a motion

for leave to amend the complaint. So for purposes of our analysis,

we accept as true the facts pled in the proposed amended complaint

and construe them in the light most favorable to the plaintiff.

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Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 376

F.3d 1065, 1077 (11th Cir. 2004).

On April 22, 2017, Fulton County Animal Services arrested

Brandon Fulton for felony cruelty to animals and seized seven

horses in his possession. Nearly a year later, on April 5, 2018, Geor-

gia dismissed the criminal charges against Fulton. But Fulton

County didn’t return the horses or otherwise compensate Fulton

for the loss of his property.

So on May 5, 2020, Fulton brought this federal suit to re-

cover his property. He initially sued the Fulton County Board of

Commissioners under 42 U.S.C. § 1983, alleging that the seizure

was an unconstitutional taking in violation of the Fifth Amend-

ment. 1

The Board of Commissioners moved to dismiss his claim. It

argued that (1) it isn’t an entity capable of being sued; (2) Fulton

failed to state a claim under § 1983; and (3) the statute of limitations

bars Fulton’s claim. Fulton opposed the Board of Commissioners’

motion. He also moved to amend his complaint to substitute the

County as defendant in place of the Board of Commissioners and

1 Fulton also sued Paul L. Howard, Jr., the former District Attorney for the

County, and Rebecca Guinn, the CEO for the organization that manages the

Fulton County Animal Services, in their individual capacities under 42 U.S.C.

§ 1983 for violating his procedural due process rights. But Fulton ultimately

withdrew the claim against Guinn. And the district court dismissed Fulton’s

claim against Howard. Fulton doesn’t appeal that ruling.

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to add an alternative claim against the County directly under the

Fifth Amendment.

The district court denied Fulton’s motion to amend his com-

plaint and dismissed his claim against the Board of Commissioners

without prejudice. It determined that Fulton’s proposed alterna-

tive claim would fail because plaintiffs who want to bring constitu-

tional takings claims against a municipality must sue under § 1983

and cannot sue directly under the Takings Clause. And in the dis-

trict court’s view, Fulton couldn’t maintain his § 1983 claim against

the Board of Commissioners or against the County because he

failed to allege that some official municipal policy or practice

caused the constitutional violation, as Monell v. Department of Social

Services of New York City, requires. 436 U.S. at 694. Since any

amendment would be futile, the district court reasoned, it declined

to address whether Fulton’s suit was timely.

Fulton appealed this order.

After we heard oral argument in this case, the Supreme

Court decided DeVillier, which, as we’ve noted, considered whether

to address whether the Takings Clause creates a direct cause of ac-

tion. 601 U.S. at 292. The Supreme Court concluded that that case

did not require it to do so. Id. And faced with deciding a novel

question without the Court’s guidance, we invited the Institute for

Justice and the cohort of Professor James W. Ely, Jr., Professor Julia

D. Mahoney, and The Buckeye Institute, each group having briefed

the issue in DeVillier, to brief several related questions here. We

also asked the Solicitor General of Georgia to brief the same

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questions. We thank them all for their excellent briefs in keeping

with the highest tradition of the legal profession.

II. STANDARD OF REVIEW

We review for abuse of discretion the district court’s denial

of a motion for leave to amend a complaint. Spanish Broad. Sys.,

376 F.3d at 1077. But we review de novo the district court’s legal

conclusion that amendment would be futile. SFM Holdings, Ltd. v.

Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010). Amend-

ment is futile if the amended complaint still would be subject to

dismissal. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th

Cir. 2004).

III. DISCUSSION

Fulton attempts to amend his complaint to bring a damages

action directly under the Takings Clause. That requires us to con-

sider whether the Takings Clause provides a cause of action to re-

cover “just compensation.” Recently, the Supreme Court declined

to answer that question in DeVillier. But we cannot take that tack

because we conclude that Fulton cannot amend his complaint to

bring a state-law action and that any theoretical Takings Clause ac-

tion would be timely. So we must confront the question head on.

To do so, we consider the text and history of the Fifth and

Fourteenth Amendments. Based on our review, we hold that the

Takings Clause contains a direct cause of action against local gov-

ernments. As a result, Fulton’s proposed amendment to his com-

plaint would not be futile. So we vacate the district court’s order

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8 Opinion of the Court 22-12041

denying the motion to amend, and we remand for further proceed-

ings consistent with this opinion.

A. The district court would have had jurisdiction over

Fulton’s Takings Clause claim.

We begin with a clarification. In his opening brief, Fulton

asserts that amendment wouldn’t be futile because the district

court would have federal-question jurisdiction over his proposed

claim. But the district court never suggested that it might lack ju-

risdiction over a Takings Clause claim. Instead, the district court

held that amendment would be futile because the Takings Clause

doesn’t provide a cause of action against municipalities. We briefly

explain the difference.

Subject-matter jurisdiction is “the courts’ statutory or con-

stitutional power to adjudicate [a] case.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 89 (1998) (emphasis omitted) (citing 5A

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE § 1350). We dismiss a claim for lack of subject-

matter jurisdiction only if the claim (1) “clearly appears to be im-

material and made solely for the purpose of obtaining jurisdiction;”

or (2) “is wholly insubstantial and frivolous.” Blue Cross & Blue

Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (quoting

Bell v. Hood, 327 U.S. 678, 682–83 (1946)).

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For a claim based directly under the Constitution, 28 U.S.C.

§ 1331 provides the statutory basis for jurisdiction.2 Under this law,

federal courts enjoy jurisdiction over “all cases aris[ing] under the

Constitution, laws, or treaties of the United States.” Bush v. Lucas,

462 U.S. 367, 374 (1983) (quoting 28 U.S.C. § 1331 (1976)) (internal

quotation marks omitted) (bracket in original). Here, Fulton’s pro-

posed amended claim alleges a violation of the Takings Clause un-

der the Fifth and Fourteenth Amendments. So as long as his claim

wouldn’t have been “wholly insubstantial and frivolous,” the dis-

trict court would have had federal-question jurisdiction over this

case.

The existence of a cause of action raises a distinct issue. See

Resnick v. KrunchCash, LLC, 34 F.4th 1028, 1034–35 (11th Cir. 2022).

A cause of action exists when “a particular plaintiff is a member of

the class of litigants that may, as a matter of law, appropriately in-

voke the power of the court.” Davis v. Passman, 442 U.S. 228, 239

n.18 (1979). Whether a plaintiff has alleged a cause of action gen-

erally presents a merits question. See Duke Power Co. v. Carolina

Env’t Study Grp., Inc., 438 U.S. 59, 70 (1978).

2 Fulton also claims that the district court would have had jurisdiction under

28 U.S.C. § 1343(a)(3). But as the Board of Commissioners notes, he didn’t

plead this basis for jurisdiction in his complaint, so he can’t rely on 28 U.S.C.

§ 1343(a)(3). See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). And

because his claim “depends . . . upon construction or application of the Con-

stitution,” 28 U.S.C. § 1331 is the correct jurisdictional hook. Duke Power Co.

v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 70 (1978) (internal quotation

marks and citation omitted).

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As an analogy, if court were an event like a play or a musical,

a cause of action would be a ticket to the show. Jurisdiction, on the

other hand, would be the right to put on the show. No ticket, no

entry. But the show can still go on for other audience members,

provided the venue finds those others have a valid ticket.

Here, Fulton has attempted to state a cause of action directly

under the Takings Clause. As we’ve noted, whether the Takings

Clause creates a cause of action to obtain “just compensation”

raises an open question. DeVillier, 601 U.S. at 292. So Fulton’s al-

leged cause of action isn’t “patently without merit.” McGinnis v.

Ingram Equip. Co., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc) (ci-

tation omitted). And the district court had jurisdiction to evaluate

whether the Takings Clause gave him a cause of action. As a result,

we must independently evaluate that merits question. This case is

about whether Fulton has a ticket, not whether the show can go on

at all.

B. Georgia law bars Fulton from bringing a state-law

action.

Before we get to the central question of the case, we must

address whether we need to answer it at all. We might avoid the

issue if we can remand the case to allow Fulton to press an action

under state law to recover the value of his horses.

That is essentially what the Supreme Court did in DeVillier.

Indeed, the DeVillier Court found it “imprudent to decide” whether

the Takings Clause contains a cause of action. DeVillier, 601 U.S. at

292. Instead, it remanded the case for the plaintiffs there to amend

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their complaints to “pursue their claims under the Takings Clause

through the cause of action available under Texas law.” Id. at 293.

And since Georgia permits inverse-condemnation actions to re-

cover the value of uncompensated takings, see Diversified Holdings,

LLP v. City of Suwanee, 807 S.E.2d 876, 884 (Ga. 2017), Fulton argues

for the first time after DeVillier in supplemental briefing that we

could remand this case to allow him to bring a claim under a Geor-

gia vehicle.

But we think Georgia law now bars any such claim. In Geor-

gia, actions to recover personal property have a four-year statute of

limitations from when the claim accrues. GA. CODE ANN. §§ 9-3-

31 to 9-3-32 (2025). Here, Georgia seized Fulton’s horses on April

22, 2017, for a criminal investigation. On April 5, 2018, it dropped

the charges. And Georgia law may have required law enforcement

to have returned Fulton’s horses by May 5, 2018. See id. § 17-5-

54(c)(2) (giving 30 days following a guilty verdict to return property

taken as part of an investigation). So even assuming Fulton’s state-

law claim did not accrue until May 5, 2018, it wouldn’t be timely

now, over seven years later, if it were the first time Fulton raised

the issue.

That said, Fulton did file a federal complaint arising from

the same set of facts on May 5, 2020, within the four-year window.

And any claim added to his complaint would relate back to its orig-

inal filing date, as though he had brought it on that date, May 5,

2020. See Est. of West v. Smith, 9 F.4th 1361, 1366 n.3 (11th Cir. 2021)

(looking to the state law providing the statute of limitations to

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12 Opinion of the Court 22-12041

determine whether an amendment to the complaint will relate

back); GA. CODE ANN. § 9-11-15(c) (2025) (“Whenever the claim or

defense asserted in the amended pleading arises out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in

the original pleading, the amendment relates back to the date of

the original pleading.”) So a state-law claim wouldn’t be barred by

the four-year statute of limitations.

The problem, though, is Georgia has a special rule for suits

against counties. It requires that “[a]ll claims against coun-

ties . . . be presented within 12 months after they accrue or become

payable or the same are barred . . . .” Id. § 36-11-1. And the record

contains no evidence showing Fulton satisfied this requirement. So

this provision bars Fulton’s state-law claim.

For this reason, we can’t avoid the question of whether Ful-

ton can proceed directly under the federal Constitution.

C. A direct Takings Clause action would not be time-

barred.

So we turn next to whether an action under the Takings

Clause could move forward. But we still might not need to address

the existence of that theoretical cause of action if it would also be

time-barred. Indeed, we can’t acknowledge Fulton’s ticket—even

if it’s valid—if it’s marked expired. For that reason, we first con-

sider the appropriate statute of limitations for a claim directly un-

der the Takings Clause. We conclude that, in Georgia, the statute

of limitations would be four years. As a result, Fulton’s claim

would not be time-barred.

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When a federal claim lacks an express statute of limitations,

we look to “the forum state’s limitations period applicable to the

state cause of action that bears the closest substantive resemblance

to the federal cause of action.” Vigman v. Cmty. Nat’l Bank & Tr. Co.,

635 F.2d 455, 459 (5th Cir. Jan. 1981) (citations omitted). 3 Here, two

potentially relevant limitations periods exist. 4

First, as we’ve mentioned, Georgia law requires actions to

recover the value of personal property to be filed within four years.

GA. CODE ANN. §§ 9-3-31 to 9-3-32 (2025). Similarly, inverse-con-

demnation actions for recovering the value of real property also

have a four-year limitations period. See id. § 9-3-30.

But second, Georgia allows potential litigants only two years

to file personal-injury actions. Id. § 9-3-33. And we apply this lim-

itation period to § 1983 actions. See Hillcrest Prop., LLC v. Pasco

County, 754 F.3d 1279, 1281 (11th Cir. 2014) (“Section 1983 claims

3 “[T]he decisions of the United States Court of Appeals for the Fifth Circuit

(the ‘former Fifth’ or the ‘old Fifth’), as that court existed on September 30,

1981, handed down by that court prior to the close of business on that date,

[are] binding as precedent in the Eleventh Circuit . . . .” Bonner v. City of Prich-

ard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

4 Not relevant is the special provision for counties requiring claims to be pre-

sented within 12 months. See GA. CODE ANN. § 36-11-1 (2025). That’s so be-

cause it’s not a statute of limitations. Rather, it’s a state procedural require-

ment that a plaintiff formally notify the county before suit. See Dates v. City of

Atlanta, 903 S.E.2d 289, 292 (Ga. Ct. App. 2024). The legalistic Latin name for

this type of requirement is ante litem notice. See id.

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are subject to a forum state’s statute of limitations for personal in-

jury claims.” (citation omitted)).

We conclude that the limitations period for the recovery of

personal property—four years—governs. That’s so because it’s the

most substantively similar action to Fulton’s effort to pursue his

federal just-compensation right. So if Fulton were able to bring a

state-law claim grounded in the Takings Clause, the four-year pe-

riod for the recovery of personal property is the one that would

apply. See GA. CODE ANN. §§ 9-3-31 to 9-3-32 (2025); Rowland v.

Clarke Cnty. Schl. Dist., 532 S.E.2d 91, 93 (Ga. 2000) (applying a four-

year limitations period for the recovery of personal property from

a county school district).

True, as we’ve mentioned, § 1983 cases, which include Tak-

ings Clause claims, are subject to the personal-injury statute of lim-

itations. See Hillcrest Prop., LLC, 754 F.3d at 1281. But that’s so be-

cause § 1983 is a “general remedy for injuries to personal rights.”

See Wilson v. Garcia, 471 U.S. 261, 278 (1985). The statute “encom-

passes a broad range of potential tort analogies, from injuries to

property to infringements of individual liberty.” Id. at 277. So the

Supreme Court thought it appropriate to apply a statute of limita-

tions that captured the “unifying theme” of the statute—even if

other torts might also be analogues to more specific rights that

§ 1983 protects. 5 Id.

5 Because Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), “create[d] a remedy against federal officers, acting under color

of federal law, that was analogous to the [§] 1983 action against state

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But we are determining the statute of limitations that would

apply to a unique cause of action that, if it exists, arises directly

under the Takings Clause. And the right to “just compensation” is

most analogous to recovery for inverse condemnation rather than

personal injury. So we apply Georgia’s statute of limitations that

governs inverse-condemnation actions.

When we do that, we conclude that Fulton’s action directly

under the Takings Clause would be timely. Law enforcement

seized Fulton’s horses in 2017, the charges were dropped in 2018,

and he brought his action in 2020—within four years of the rele-

vant facts. So the statute of limitations wouldn’t bar Fulton’s ac-

tion.

Because a theoretical action directly under the Takings

Clause would be timely, we must determine whether such a cause

of action in fact exists.

officials . . . . courts generally apply § 1983 law to Bivens cases.” Kelly v. Serna,

87 F.3d 1235, 1238 (11th Cir. 1996) (quoting Abella v. Rubino, 63 F.3d 1063, 1065

(11th Cir. 1995)). So Bivens actions brought in Georgia similarly use the state’s

two-year personal-injury statute of limitations. Id. But as we explain in Part

III.D.5, infra, a cause of action directly under the Takings Clause would be

completely independent of Bivens and unrelated to § 1983. So we don’t see

Bivens as a reason to apply the two-year statute of limitations to a direct just-

compensation claim.

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D. The Takings Clause creates a direct cause of action

for unconstitutional takings by local governments.

Finally, we get to the main event (it may not be Hamilton, but

we do have the two other authors of the Federalist Papers a little

later). We must confront whether a litigant may sue a county in

Georgia—a political subdivision of the state, see GA. CODE ANN.

§ 25-3-4 (2025)—directly under the Takings Clause to obtain “just

compensation” for a taking. After reviewing the text, history, and

structure of the Constitution, we hold that a litigant can.

1. The text of the Fifth Amendment and the structure

of the Constitution show that the Takings Clause

contains a direct cause of action.

The Takings Clause provides that no “private property

[shall] be taken for public use, without just compensation.” U.S.

CONST. amend. V. Three major points about this text and how it

fits into the Constitution’s overall structure stand out: (1) the Tak-

ings Clause guarantees “just compensation”—a monetary rem-

edy—when the government takes private property; (2) the Takings

Clause is “self-executing,” Knick v. Township of Scott, 588 U.S. 180,

194 (2019); and (3) the Takings Clause is one of only two constitu-

tional guarantees that provides its own remedy. Together, these

three points lead to the conclusion that the Constitution automat-

ically provides Americans with the federal right to sue for “just

compensation.” In this subsection, we explain each point and why

it supports that conclusion.

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We begin with the meaning of “just compensation.” Dic-

tionaries during the Founding period and in the early years of our

Republic defined “just” to mean “[u]pright; incorrupt; equitable in

the distribution of justice”—in other words, fair. SAMUEL JOHNSON,

Just. adj., A DICTIONARY OF THE ENGLISH LANGUAGE (1773),

https://perma.cc/W4M8-T5C2 (emphasis added); see also NOAH

WEBSTER, Just, adjective, AMERICAN DICTIONARY OF THE ENGLISH

LANGUAGE (1828), https://perma.cc/PD4F-PHYQ (defining “just,”

in relevant part, to mean “[e]quitable; due; merited; as a just rec-

ompense or reward”). And they defined “compensation” as

“[r]ecompence; something equivalent; amends”—that is, payment

for what’s been taken. SAMUEL JOHNSON, Compensa’tion. n.s, A

DICTIONARY OF THE ENGLISH LANGUAGE (1773),

https://perma.cc/7RVU-GDKK; see also NOAH WEBSTER, Compen-

sation, noun, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE

(1828), https://perma.cc/C3PP-EEBC (“That which is given or re-

ceived as an equivalent for services, debt, want, loss, or suffering;

amends; remuneration; recompense.”). Together, then, the plain

meaning of the term “just compensation” refers to fair payment.

So it’s unsurprising that the Supreme Court has said that

“just compensation” is monetary relief. City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710 (1999). To deter-

mine “just compensation,” we ask “what has the owner lost”? See

id. (quoting Bos. Chamber of Com. v. Boston, 217 U.S. 189, 195 (1910)).

We don’t consider “what . . . the taker gained” or seek to put the

owner in an equitable position with the taker. See id. Instead, we

seek to give the owner only the value of what the government

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18 Opinion of the Court 22-12041

took. See id. In essence, then, “just compensation is, like ordinary

money damages, a compensatory remedy.” Id. So in legalistic

terms, “just compensation” is “legal relief.” Id. at 710–11.

And to get any form of “legal relief ” in the federal court-

room, a litigant must have a cause of action. See id.; Davis, 442 U.S.

at 239 n.18. So with an express constitutional right to receive “just

compensation” as a form of legal relief, we would expect a guaran-

teed cause of action to sue to recover that relief. 6 See United States

v. Lee, 106 U.S. 196, 220 (1882) (“It cannot be denied that [the Tak-

ings Clause was] intended to be enforced by the judiciary as one of

6 Citing the work of Professor Jud Campbell, the Dissent argues that a consti-

tutional right to a legal remedy does not necessarily supply a cause of action

to get that relief. See Diss. Op. at 7 (citing Jud Campbell, Determining Rights,

138 Harv. L. Rev. 921, 923, 944, 974 n.370, 981 (2025); and then citing William

Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth

Amendment, 76 Stan. L. Rev. 1185, 1191 (2024)). But Campbell has argued that

rights may be either legally determinate, and therefore judicially enforceable,

or indeterminate. See, e.g., Campbell, Determining Rights, supra, at 923 n.7

(“Many Founders accepted the judicial enforceability of legally determinate

fundamental rights, whether enumerated or not.”); cf. id. at 931 (“Although

natural law was ‘law’ in an abstract sense, it generally was not ‘law’ in a judi-

cially enforceable sense because it lacked determinate content.”). And he has

been clear that, under his theory, the right to “just compensation” is a deter-

minate right, so it follows that it is judicially enforceable. See id. at 974 n.370

(describing “the right against uncompensated takings” as a “legally determi-

nate right[]”); Baude, Campbell & Sachs, General Law and the Fourteenth Amend-

ment, supra, at 1236 (recognizing “the right to compensation for takings” as a

“centerpiece[]” of both the Bill of Rights and the privileges or immunities of

citizenship). As a result, an adherent to Campbell’s views should remain com-

fortable with the conclusion that the Constitution supplies a direct cause of

action for judicial enforcement of the Takings Clause.

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22-12041 Opinion of the Court 19

the departments of the government established by th[e] constitu-

tion.”).

The Supreme Court has also told us that the Takings

Clause’s right to “just compensation” is “self-executing.” See Knick,

588 U.S. at 194. That means that a person is automatically entitled

to this relief as soon as they suffer a taking. See id. at 190. Congress

need not recognize their injury nor their right to a remedy. See id.

(discussing Jacobs v. United States, 290 U.S. 13 (1933)). And based on

the text of the Clause, that makes sense. By its terms, the Clause

reflects that as soon as the government commits a “taking, com-

pensation must be awarded” and the property owner “has already

suffered [a constitutional violation] at the time of the uncompen-

sated taking.” Id. at 193 (internal quotation marks and citation

omitted).

Because property owners have an automatic right to a form

of legal relief, it follows they have an automatic cause of action to

get that relief. They are instantly entitled to receive “just compen-

sation” in the courts. See id. at 194 (recognizing the ability to re-

cover “just compensation” from federal officials directly under the

Fifth Amendment pursuant to the Tucker Act and from local gov-

ernments under 42 U.S.C. § 1983). And they need not point to a

statute recognizing a right to “just compensation” or an acknowl-

edgment by the government of its willingness to pay. Rather, as

the Supreme Court has explained, “[s]uch a promise [i]s implied

because of the duty to pay imposed by the Amendment.” First Eng-

lish Evangelical Lutheran Church of Glendale v. Los Angeles County, 482

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20 Opinion of the Court 22-12041

U.S. 304, 315 (1987) (quoting Jacobs, 290 U.S. at 16). In fact, as we

explore in greater detail in Part III.D.5, the Supreme Court has al-

ready effectively held that the Takings Clause directly supplies a

cause of action against the federal government. See Jacobs, 290 U.S. at

16 (Tucker Act takings suits are “founded upon the Constitution of

the United States.”).

It makes structural sense that the Constitution grants an au-

tomatic cause of action to recover “just compensation.” As we ex-

plain further in Part III.D.2, because of the outsized burden legis-

latures placed on individual property owners before and during the

Revolution, the Framers did not trust those bodies to ensure “just

compensation” for takings. See Part III.D.2, infra. And if they did

not provide the Takings Clause with a cause of action in the ab-

sence of legislation creating one, the provision’s promised “just

compensation” remedy would be empty.

So the intrinsic cause of action within the Takings Clause

ensures meaning behind the constitutional guarantee. In other

words, by expressly giving Americans the right to get payment

from the government in the courtroom, the Constitution, of

course, too gives them the ticket they need to enter in the first

place. Otherwise, the government could just refuse to issue a ticket

anytime it didn’t want to pay. We don’t think the Founders made

an empty promise to Americans. A guaranteed remedy is a guar-

anteed remedy only if it’s accessible.

Ultimately, the text is straightforward. The Takings Clause

guarantees a legal damages-type remedy, and it is “self-executing”.

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These characteristics are especially noteworthy because they make

the Takings Clause a constitutional unicorn—no other constitu-

tional guarantee expressly contains these two features. Cf. DeVillier,

601 U.S. at 291 (“Constitutional rights do not typically come with a

built-in cause of action to allow for private enforcement in courts.”

(citation omitted)).

As a result, the Framers did not have to be concerned that a

cause of action directly under the Takings Clause would willy-nilly

lead to the finding of direct causes of action under multiple other

parts of the Constitution. In fact, only one other part of the Con-

stitution—Article I, Section 9’s Suspension Clause, which guaran-

tees the writ of habeas corpus—even refers to any remedy at all,

though not a compensatory one. RICHARD H. FALLON, JR., JOHN F.

MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART &

WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 330

(7th ed. 2015) [hereinafter HART & WECHSLER]; see also Akhil Reed

Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1509 n.329

(1987) (“[T]he non-suspension clause is the original Constitution’s

most explicit reference to remedies.”).

That only two constitutional provisions expressly provide

for a remedy upon violation “sets [them] apart from others and at

least suggests these two rights—even if not all others in the Con-

stitution—have special protections against congressional abroga-

tion or dereliction” of their guaranteed remedies. DeVillier v. Texas,

63 F.4th 416, 439 (Oldham, J., dissenting from denial of rehearing

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22 Opinion of the Court 22-12041

en banc) (5th Cir. 2023), denying reh’g from, 53 F.4th 904 (5th Cir.

2023) (per curiam), vacated, 601 U.S. 285 (2024).

We can see that by how the Supreme Court has treated the

Suspension Clause. Indeed, the Supreme Court has expressly com-

pared the Constitution’s only two guaranteed remedies. In United

States v. Lee, the Court reasoned, if the Constitution offers “suffi-

cient authority for [a] court to interfere to rescue a prisoner from

the hands of those holding him under the asserted authority of the

government [by issuing a writ of habeas corpus], what reason is

there that the same courts shall not give remedy to the citizen

whose property has been . . . devoted to public use without just

compensation?” 106 U.S. at 218.

So we take a look at how the Supreme Court has treated the

Suspension Clause. The Suspension Clause guarantees “[t]he Priv-

ilege of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety may re-

quire it.” U.S. CONST. art. I, § 9, cl. 2. That is, the Suspension Clause

secures the remedy of the writ of habeas corpus for detained or

imprisoned individuals except in highly limited circumstances. The

Supreme Court has construed this “Privilege” of habeas corpus to

be at least as extensive as it existed at the time of the Founding.

Boumediene v. Bush, 553 U.S. 723, 746 (2008) (“[A]t the absolute min-

imum the Clause protects the writ as it existed when the Constitu-

tion was drafted and ratified.” (citation and internal quotation

marks omitted)).

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22-12041 Opinion of the Court 23

Over the years, Congress has enacted legislation that creates

substitutes for the writ of habeas corpus. And the Supreme Court

has ensured that the new frameworks preserved the constitutional

guarantee. See, e.g., id. In 1948, for instance, Congress passed 28

U.S.C. § 2255 as a substitute for the writ of habeas corpus for pris-

oners in custody under a sentence that a federal court imposed. See

United States v. Hayman, 342 U.S. 205, 206–07 (1952). After a pris-

oner filed a § 2255 motion, a federal appeals court sua sponte raised

concerns that the statute violated the Suspension Clause. Id. at 209.

But the Supreme Court highlighted that the statute avoided those

constitutional concerns because “where the Section 2255 proce-

dure is shown to be ‘inadequate or ineffective’, the Section provides

that the habeas corpus remedy shall remain open to afford the nec-

essary hearing.” See id. at 223 (quoting 28 U.S.C. § 2255 (1947)).

The Court “implicitly held . . . that the substitution of a collateral

remedy” that does not purport to narrow the writ of habeas corpus

“does not constitute a suspension of the writ of habeas corpus.”

Swain v. Pressley, 430 U.S. 372, 381 (1977) (discussing Hayman).

Similarly, when the District of Columbia adopted a law mod-

eled on § 2255, the Supreme Court upheld it as constitutional under

the Suspension Clause. Id at 381–84. The Court explained that

“[s]ince the scope of the remedy provided by [the District of Co-

lumbia law] is the same as that provided by § 2255, it is also com-

mensurate with habeas corpus” in all relevant respects. Id. at 381–

82. So once again, when the substitute remedy did not narrow the

writ of habeas corpus, leaving a coextensive remedy to the consti-

tutional guarantee, it did not violate the Suspension Clause.

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24 Opinion of the Court 22-12041

But when Congress did narrow the constitutional remedy,

the Court took issue with its legislation. In the aftermath of the

September 11, 2001, terrorist attack, Congress enacted a statute

that was “intended to circumscribe habeas review” for aliens desig-

nated as enemy combatants and detained at the United States Naval

Station at Guantanamo Bay. Boumediene, 553 U.S. at 776. And

“[u]nlike in Hayman and Swain, . . . there [was] no effort to preserve

habeas corpus review as an avenue of last resort.” Id. at 777. Be-

cause the legislation narrowed the habeas corpus remedy, the

Court concluded it was “an inadequate substitute for habeas cor-

pus” and it “effect[ed] an unconstitutional suspension of the writ.”

Id. at 792. So the petitioners still had access to the underlying con-

stitutional remedy of a petition for a writ of habeas corpus.7 See

id. at 798.

7 The Dissent suggests, contrary to all the binding precedent we have cited,

that the Constitution doesn’t automatically secure access to the writ of habeas

corpus in federal courts. See Diss. Op. at 13–14. It highlights that the First

Congress had to grant the lower federal courts jurisdiction to issue this consti-

tutional remedy. See id. at 14. But the Dissent muddles the concepts of sub-

ject-matter jurisdiction and causes of action. Cf. Part III.A, supra (explaining

the distinction). Article III provides for just one mandatory federal court with

constitutionally prescribed jurisdiction: the Supreme Court. See U.S. CONST.

art. III, §§ 1, 2. It’s up to Congress to provide for and structure lower federal

courts and grant them jurisdiction. See id. § 1; Akhil Reed Amar, A Neo-Feder-

alist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L.

REV. 205, 212 (1985) (“Article III plainly imposes no obligation to create lower

federal courts.”); but see Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 331

(1816) (“It would seem . . . that congress are bound to create some inferior

courts . . . .”). Even so, though, Article III still requires eventual federal judi-

cial review, in a federal court of Congress’s choosing, for certain classes of

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22-12041 Opinion of the Court 25

We draw two simple lessons from this line of precedent on

habeas corpus substitutes: (1) Congress cannot narrow the scope

of a constitutionally prescribed remedy, and (2) if it tries to do so,

the underlying constitutional remedy remains directly available.

Because “just compensation” is a constitutionally prescribed

remedy—indeed, the only other constitutionally prescribed rem-

edy besides the writ of habeas corpus—Congress likewise cannot

narrow the scope of that right through legislation. See Seaboard Air

Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923) (“Just compen-

sation is provided for by the Constitution and the right to it cannot

be taken away by statute”); cf. DeVillier, 601 U.S. at 292 (“[C]onsti-

tutional concerns do not arise when property owners have other

ways to seek just compensation.”). So if a legislative substitute for

“just compensation” is not coextensive with the constitutionally

prescribed remedy of “just compensation,” then the constitution-

ally prescribed remedy remains directly available.

cases. See Amar, A Neo-Federalist View, supra, at 238–54 (explaining that Article

III requires judicial review of three categories of mandatory cases); Martin, 14

U.S. at 330–36 (same). And those mandatory cases include cases that seek re-

lief under the Constitution’s two guaranteed remedies: the writ of habeas cor-

pus and “just compensation.” See U.S. CONST. art. III, § 2 (“The judicial Power

shall extend to all Cases, in Law and Equity, arising under this Constitu-

tion . . . .”). To be sure, Congress can pick the stage for the show. But it must

provide for some way to honor a valid ticket. It has done so for takings claims

by granting the federal courts federal-question jurisdiction. See 28 U.S.C. §

1331.

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26 Opinion of the Court 22-12041

For all these reasons, the text of the Fifth Amendment and

the structure of the Constitution require the conclusion that the

Takings Clause includes a direct cause of action.

2. The history behind the Takings Clause and the Four-

teenth Amendment shows that the Clause contains a

direct cause of action against local governments.

The history of the Takings Clause and the Fourteenth

Amendment also supports the conclusion that the Takings Clause

contains a direct cause of action against local governments. As we

show below, the history tells us several things: (1) the Framers of

the Takings Clause included the “just compensation” right to pro-

tect against government abuses—even by a well-meaning govern-

ment that acts for the public good; (2) the Framers designed the

Takings Clause with the intent that its “just compensation” remedy

would not depend upon legislation; (3) even when states did not

have their own versions of the Takings Clause, courts viewed the

just-compensation principle as a fundamental right and regularly

awarded “just compensation” in the form of damages in common-

law actions; (4) even before Congress gave federal courts jurisdic-

tion to hear specifically claims for “just compensation” for takings,

federal courts resolved takings claims against federal and state offi-

cials when they had jurisdiction; and (5) the Framers of the Four-

teenth Amendment intended for the amendment to make the Tak-

ings Clause remedy available against state and local governments

in federal courts.

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22-12041 Opinion of the Court 27

We start with colonial times. During that period, the funda-

mental protection against governmental seizure of property was

limited: the government could seize property only if the legislature

or a jury authorized it. See William Michael Treanor, The Original

Understanding of the Takings Clause and the Political Process, 95

COLUM. L. REV. 782, 785–88 (1995). But that protection contained

no right to “just compensation” once a majoritarian body approved

a taking.

This legislature-authorization protection traces to Article 39

of the Magna Carta. That article provided that “[n]o free man shall

be . . . dispossessed . . . except by the legal judgment of his peers or

by the law of the land.” Id. at 787. And it fit the period when Par-

liament reigned supreme with near plenary powers over the em-

pire. See id. at 786 n.15. Based on this historical background, sev-

eral colonial legislatures authorized uncompensated takings—as

long as a body representing the public good approved. 8 See id. at

787–88.

Still, two fundamental documents of the colonial era con-

tained provisions mandating “just compensation:” the Massachu-

setts Body of Liberties of 1641 and the 1669 Fundamental Consti-

tutions of Carolina (drafted by John Locke but never completely

8 William Blackstone in his famous Commentaries did recognize a right to “just

compensation” for takings of real property, although he gave no citation for

where English law recognized this principle. See Treanor, The Original Under-

standing, supra, at 786 n.15. And this appears to be a rare instance where his

view did not convince English jurists of the time. See id.

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28 Opinion of the Court 22-12041

implemented). Id. at 785–86. Yet even those two provisions had

limited applications, with Massachusetts applying the principle to

personal property only and Carolina to real property. Id. Other

colonies enacted statutes with compensation in select situations,

but they recognized no fundamental right. See James W. Ely, Jr.,

“That Due Satisfaction May be Made:” The Fifth Amendment and the

Origins of the Compensation Principle, 36 AM. J. LEGAL HIST. 1, 5–13

(1992).

Then the Revolution ushered in a new era for property law.

In advancing one of the most important causes in American history

for the public good, Washington’s army seized personal property—

including horses—without compensation. See Treanor, The Origi-

nal Understanding, supra, at 790; AKHIL REED AMAR, THE BILL OF

RIGHTS: CREATION AND RECONSTRUCTION 79–80 (1998); Jed Ruben-

feld, Usings, 102 YALE L.J. 1077, 1122–23 (1993).

That frustrated people. And those uncompensated seizures

triggered a sudden interest in guaranteeing compensation for the

unlucky few who suffered losses at the hands of even a well-mean-

ing majority. Treanor, The Original Understanding, supra, at 790;

AMAR, THE BILL OF RIGHTS, supra, at 79–80; Rubenfeld, Usings, su-

pra, at 1122–23; see also 1 HENRY ST. GEORGE TUCKER,

BLACKSTONE’S COMMENTARIES app. at 305-06 (Philadelphia, Birch &

Small 1803) (opining that the eventual federal just-compensation

guarantee “was probably intended to restrain the arbitrary and op-

pressive mode of obtaining supplies for the army, and other public

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22-12041 Opinion of the Court 29

uses, by impressment, as was too frequently practiced during the

revolutionary war, without any compensation whatever”).

Vermont, for instance, added a just-compensation principle

to its 1777 Constitution. VT. CONST. of 1777, ch. I, art. II. Massa-

chusetts followed suit in 1780. See MASS. CONST. of 1780, part I,

art. X. The Confederation Congress wasn’t far behind when it

passed the Northwest Ordinance, governing the Northwest Terri-

tories, with a similar guarantee. See Northwest Ordinance of 1787,

art. 2.

Meanwhile, when it came time to structure the new federal

government, most of the Founding generation focused on the

threat that a corrupt central government could pose to all Ameri-

cans. See AMAR, THE BILL OF RIGHTS, supra, at 77. As a result, the

Bill of Rights in large part emphasized constraining the power of

federal officials who might engage in self-dealing. Id.

But some Framers, most notably John Jay and James Madi-

son, zeroed in on the importance of checking even a good-natured

government’s abuses in the form of property takings. As the war

proved, even a well-intentioned government could trample the in-

dividual in the name of the public good. So following Jay and Mad-

ison’s lead, the Framers tacked the Takings Clause onto the Fifth

Amendment. Id. at 77–80.

That Clause is the only Bill of Rights provision designed to

act as a special outside check on Congress’s treatment of disfavored

persons. See id. at 77–78. It does so, as we’ve explained, by guaran-

teeing a remedy. And here’s the key point: both Jay and Madison

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30 Opinion of the Court 22-12041

were centrally concerned with protecting the right to “just com-

pensation” from the whims of the legislature. That’s why they

spearheaded an amendment that departed from the Magna Carta

model and would guarantee compensation for taken property even

when the legislature authorized the taking. See U.S. CONST. amend.

V.

We start with Jay. In 1778, Jay penned a letter to the New

York legislature, decrying “the Practice of impressing Horses,

Teems, & Carriages by the military, without the Intervention of a

civil Magistrate, and without any Authority from the Law of the

Land.” John Jay (A Freeholder), A Hint to the Legislature of the State

of New York, FOUNDERS ONLINE, https://perma.cc/32NL-432K

(emphases altered). Instead, Jay advanced a vision where “many

who . . . severely feel this kind of oppression, may . . . bring Actions

and recover Damages.” Id. (emphasis added). Our first Chief Justice

couldn’t have been clearer that he thought a plaintiff like Fulton,

who had his horses taken without compensation, should be able to

sue for damages.

As for the author of the Fifth Amendment—James Madi-

son—writing Federalist 10, Madison “was ahead of his time in ar-

guing that the dominant danger in America came from a possibly

overweening majority rather than from self-interested government

agents.” AMAR, THE BILL OF RIGHTS, supra, at 77; see also

FEDERALIST No. 10. In Madison’s view, a majoritarian body with-

out an outside check on its power offered insufficient protection for

property rights. See James Madison, For the National Gazette:

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22-12041 Opinion of the Court 31

Property (Mar. 27, 1792), FOUNDERS ONLINE,

https://perma.cc/K8EH-FU5N [hereinafter Property] (“Where an

excess of power prevails, property of no sort is duly respected.”).

So Madison crafted the Takings Clause. That Clause was

unique: it created a right that applied even when the government

didn’t misuse its power and instead acted “for public use.” See U.S.

CONST. amend. V; Madison, Property, supra (stating that no prop-

erty “shall be taken directly even for public use without indemnifi-

cation to the owner . . .”). Madison envisioned the protection of

that right through “independent tribunals of justice [who] will con-

sider themselves in a peculiar manner [its] guardians . . . .” James

Madison, Amendments to the Constitution ( June 8, 1789), FOUNDERS

ONLINE, https://perma.cc/ZF5L-W9ZN.

And as a congressman, Madison tried to honor that plan by

proposing a law granting the Supreme Court appellate jurisdiction

to review decisions on federal claims. See Floyd D. Shimomura, The

History of Claims Against the United States: The Evolution from a Legis-

lative Toward a Judicial Model of Payment, 45 LA. L. REV. 625, 638 &

n.94 (1985). In his view, the adjudication of a federal claim was a

“judicial rather than executive” power. Id. (citing 1 ANNALS OF

CONG. 611–12 ( J. Gales ed. 1834)) (recording Madison as having

stated that “deciding upon the lawfulness and justice of . . . claims,

and accounts subsisting between the United States and particular

citizens . . . partakes strongly of the judicial character . . . .”).

But of course, at the Founding, the federal judiciary was

largely undeveloped. Indeed, Congress didn’t grant the lower

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32 Opinion of the Court 22-12041

federal courts federal-question jurisdiction until almost a hundred

years later—in 1875. See Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat.

470, 470; see also HART & WECHSLER, supra, at 22–24, 27–28 (discuss-

ing the grounds for subject-matter jurisdiction for lower federal

courts at the Founding through Reconstruction). And it wasn’t un-

til 1887 that Congress passed the Tucker Act, which gave the Court

of Claims jurisdiction to hear cases requiring payment from the

United States. See Tucker Act, ch. 359, § 1, 24 Stat. 505, 505 (1887).

Without that, federal courts generally lacked the jurisdiction to

hear cases brought directly under the Fifth Amendment—even if

litigants theoretically had a cause of action directly under it. Liti-

gants might have had a ticket, but federal courts had no right to put

on the show.

And in any case, litigants filed few takings cases against the

federal government because the federal government used states to

condemn property for federal use. Treanor, The Original Under-

standing, supra, at 794 n.69; William Baude, Rethinking the Federal

Eminent Domain Power, 122 YALE L.J. 1738, 1762 (2013) (“During the

first twenty years of the federal government, Congress built quite

a few things and sometimes needed eminent domain . . . . [T]he

use of state power was uniform and unquestioned.”).

Still, federal courts did zealously enforce the Takings Clause

in the limited instances they had jurisdiction and a relevant suit

came up. In 1815, for example, the Supreme Court discussed the

“just compensation” right when it was reviewing a state-law action

brought to recover possession of property that federal officials

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22-12041 Opinion of the Court 33

occupied. In Meigs v. McClung’s Lessee, the Defendants were United

States officers who erected a garrison on property in North Caro-

lina, under the authority of the United States. 13 U.S. (9 Cranch)

11, 12 (1815) (bill of exceptions). Plaintiff McClung’s lessee claimed

to have leased the property where Meigs and the others resided. Id.

He asserted that the officers were on the property improperly. See

id. So he filed a common-law action of ejectment, a state-law ac-

tion to recover possession of property from any wrongful occu-

pier. 9 See id.

The Defendants argued “[t]hat the United States had a right

by the constitution to appropriate the property of individual citi-

zens” and they had done so “as officers of the United States, for the

benefit of the United States, and by their direction . . . .” Id. at 13.

But the trial court rejected that defense. Instead, it instructed the

jury that “if the land . . . was at the time vacant land[,] the United

States could appropriate it as they pleased; but if it was private

property[,] the United States could not deprive the individual of it

without making him just compensation therefor.” Id. at 14. The

trial court awarded judgment to McClung’s lessee. See generally id.

Then the Supreme Court affirmed. See id. at 18. In uphold-

ing the ejectment remedy, Chief Justice Marshall, writing for the

Court, explained that the land was “certainly the property of

[McClung’s lessee]; and the United States cannot have intended to

9 Although the case does not state why federal-court jurisdiction existed be-

low, we can surmise that there must have been diversity of citizenship be-

tween the parties. Cf. HART & WECHSLER, supra, at 22–24, 27–28.

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34 Opinion of the Court 22-12041

deprive him of it by violence, and without compensation.” Id. In

other words, the Court would not allow the United States to claim

possession of property without paying for it.

Meigs shows that the Marshall Court understood that, where

it had jurisdiction, the Constitution required it to enforce the right

to “just compensation.” And the Court enforced that right even

though that meant allowing a private citizen to sue officers of the

United States in federal court without the government’s consent.

See Lee, 106 U.S. at 210–11 (discussing how Meigs recognized a pri-

vate plaintiff can sue federal officers for possession of taken prop-

erty).

Still, Meigs was a rarity. And during those early years of the

Republic, in the absence of federal-question jurisdiction in lower

federal courts for alleged Takings Clause violations, Congress

served as the primary “forum for takings claims.” Treanor, The

Original Understanding, supra, at 794 n.69. Yet the terms of the Tak-

ings Clause ensure that Congress lacked “discretion to deny takings

claims mandated by the Takings Clause.” Id. After all, the Takings

Clause guaranteed the “just compensation” remedy. And Congress

instead acted only as the lawful judicial tribunal to hear damages

actions stemming directly under the Clause. See id.; Shimomura,

The History of Claims, supra, at 638 & n.94 (discussing Madison’s

view that the adjudication of federal claims was a judicial power).

So even before the federal courts had the jurisdiction to hear claims

for damages arising out of federal takings, litigants enjoyed an ef-

fective direct cause of action for “just compensation”—only

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22-12041 Opinion of the Court 35

Congress, not the courts, sat as the “judicial” tribunal to determine

the just amount.

The Dissent disagrees with our understanding of this early

history. It says Congress didn’t exercise a judicial function when it

adjudicated takings claims. See Diss. Op. at 20–22. Rather than act-

ing as “a pseudo-judicial tribunal,” the Dissent argues, Congress ex-

ercised its legislative “power over the purse” to pay claims as it

pleased. See id. at 20. For support, the Dissent draws from schol-

arship on how the early Congresses resolved all federal claims—not

specifically takings claims. See id. at 20–22 (first citing Shimomura,

The History of Claims, supra; then citing 2 WILSON COWEN, PHILIP

NICHOLS, JR. & MARION T BENNETT, THE UNITED STATES COURT OF

CLAIMS: A HISTORY (1978); and then citing William M. Wiecek, The

Origins of The United States Court of Claims, 20 Admin. L. Rev. 387

(1968)).

But a practice of discretionarily declining to pay valid claims,

while maybe permissible for most federal claims, would be a clear

violation of the text of the Fifth Amendment if extended to takings

claims. See U.S. CONST. amend. V (No “private property [shall] be

taken for public use, without just compensation.”). As we’ve ex-

plained, the Takings Clause was an innovation at the Founding—

designed as a unique constraint on legislative power that required

mandatory enforcement. In other words, Congress could act only

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36 Opinion of the Court 22-12041

consistently with the Constitution’s just-compensation guarantee

when it served as a tribunal for takings.10

And to the extent that early Congresses treated takings

claims like all other claims—to be clear, we don’t think the Dissent

has established they did—then Congress did so contrary to leading

10 The Dissent implies that Congress must retain jurisdiction over takings

claims to heed the Appropriations Clause, which provides that “[n]o Money

shall be drawn from the Treasury, but in Consequence of Appropriations

made by Law . . . .” See Diss. Op. at 22–23 (quoting U.S. CONST. art. I, § 9, cl.

7). We start by noting that the Appropriations Clause has no relevance in the

case before us because we are considering whether the Takings Clause pro-

vides a cause of action against local governments, who are not encompassed by

the Appropriations Clause. See U.S. CONST. art. I, § 9, cl. 7. But even when it

comes to federal takings, for at least two reasons, Congress always maintains

control over the fisc, even when courts handle takings claims. First, even

though Congress must provide a forum for takings claimants to pursue their

constitutional cause of action, Congress retains authority to structure and as-

sign the tribunal with jurisdiction over these claims. See U.S. CONST. art. III, §

1; cf. Vishnevsky v. United States, 581 F.2d 1249, 1256 (7th Cir. 1978) (collecting

“a long line of cases” where “the Supreme Court has itself . . . specifically af-

firmed the appropriateness of mandamus relief to compel federal officers to

pay monies out of the public treasury, where the duty to do so was clear and

ministerial”). Second, the federal government is liable for takings only when

its officers act “within the general scope of their duties.” See Darby Dev. Co. v.

United States, 112 F.4th 1017, 1024 (Fed. Cir. 2024); Part III.D.3, infra. So to

owe “just compensation,” Congress must pass legislation imbuing an officer

with responsibilities that generally authorize her to take property and put the

public on the hook for “just compensation.” See Part III.D.3, infra; cf. CFPB v.

Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 431 (2024) (“[T]he origins of

the Appropriations Clause confirm that appropriations needed to designate

particular revenues for identified purposes. Beyond that, however, early leg-

islative bodies exercised a wide range of discretion.”).

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22-12041 Opinion of the Court 37

Founders like Madison and Jay’s understanding of the Takings

Clause. In contrast to the “just compensation” remedy, early Con-

gresses drew the general claims-resolution process from early Eng-

lish practice when the “just compensation” principle did not con-

strain legislatures. See Shimomura, The History of Claims, supra, at

627–37 (describing the evolution of a legislative model of federal

claims resolution). Congress extended that common-law practice

after the Founding as it quickly moved to assert its dominance over

a yet-to-be-established judiciary. Id. at 637.

But in its zeal to cement power over the courts, Congress

sometimes took blatantly unconstitutional acts, often to kneecap

and subserviate the judiciary. See Hayburn’s Case, 2 U.S. (2 Dall.)

408, 410 n.* (1792) (providing circuit court opinions that an act of

Congress requiring the judiciary to evaluate pensioner claims sub-

ject to review by the Secretary of War and Congress was unconsti-

tutional); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (con-

cluding Congress unconstitutionally attempted to expand the orig-

inal jurisdiction of the Supreme Court); cf. Stuart v. Laird, 5 U.S. (1

Cranch) 299 (1803) (acquiescing to a congressional act, which

wholly eliminated properly appointed Article III judgeships). A

weak early judiciary could do little to push back when Congress

disregarded the tripartite structure of our Constitution. See

Shimomura, History of Claims, supra, at 645–46 (discussing how the

Supreme Court permitted congressional adjudication of federal

claims “as a political fact” and “an extension of colonial history [ra-

ther] than a deduction of logic from the new Constitution” and

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38 Opinion of the Court 22-12041

“refused to dignify it with any theoretical or policy justification”

(footnote omitted)).

And the results of such congressional contempt for the

proper role of the judiciary were disastrous—as early as 1838, the

House of Representatives’s Committee on Claims released a report

that Congress had been inundated with private claims, consuming

time and resources and causing injustice. See id. at 648–51 (discuss-

ing early disfunction in the private bill system of claim adjudica-

tion). By the Civil War, President Lincoln echoed Madison, telling

Congress that “the investigation and adjudication of claims in their

nature belong to the judicial department . . . .” Wiecek, The Origins

of The United States Court of Claims, supra, at 398 (quoting 7

MESSAGES AND PAPERS OF THE PRESIDENTS 3252 ( James D. Richard-

son, ed., New York, 1897–1911)).

All of this is to say that early congressional practice didn’t

always conform to the Constitution’s structure as ratified and as

leading Founders understood it. Even assuming the Dissent’s un-

derstanding of early congressional treatment of takings claims is

correct (again, we don’t think it is), that practice would be one such

case. And we couldn’t summarily declare its constitutionality as a

“contemporaneous legislative exposition of the Constitution . . . ,

acquiesced in for a long term of years, [that] fixes the construction

to be given [the Constitution’s] provisions.” Eldred v. Ashcroft, 537

U.S. 186, 213 (2003) (quoting Myers v. United States, 272 U.S. 52, 175

(1926)). After all, it wasn’t.

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22-12041 Opinion of the Court 39

In fact, we don’t have an “unbroken practice since the found-

ing generation” of resolving takings claims through legislative ra-

ther than judicial adjudication. Cf. id. Americans did not acquiesce

to that practice. Instead, through the early nineteenth century, the

public grew even more attached to the idea of judicial enforcement

of the right to “just compensation”—vindicating Jay and Madison

in any dispute with Congress.

Specifically, the inclusion of a just-compensation principle in

the Fifth Amendment led to a wave of recognition of the right at

the state level. And as a result, our history contains repeated ac-

knowledgment that citizens were entitled to recover “just compen-

sation” in the courts. Indeed, by the middle of the century, it be-

came clear that state just-compensation clauses inherently con-

tained a right to bring damages actions. This history offers im-

portant context to understand the intent of the Framers of the

Fourteenth Amendment, who extended the reach of the federal

Takings Clause to the states. So we take a moment to review it.

When the country ratified the Fifth Amendment, only one

of the first thirteen states, Massachusetts, recognized a right to

“just compensation” in its constitution. AMAR, THE BILL OF RIGHTS,

supra, at 79. By 1800, two had. J.A.C. Grant, The “Higher Law”

Background of the Law of Eminent Domain, 6 WIS. L. REV. 67, 70

(1931). By 1850, six did. Id. And by 1868, eight. Id. Plus, nearly

every new state admitted to the union included a just-compensa-

tion provision. Id. Not only that, but leading American jurists pro-

claimed a right to “just compensation” as a fundamental right

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40 Opinion of the Court 22-12041

undergirding free government. See, e.g., 2 JAMES KENT,

COMMENTARIES ON AMERICAN LAW 339 (New York: O. Halsted,

1832) (just compensation “is founded in natural equity, and is laid

down by jurists as an acknowledged principle of universal law”); 3

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 1784, at 661 (Boston: Hilliard, Gray, 1833) (same).

Ultimately, courts in virtually every state extended the prin-

ciple of “just compensation” against state and local governments.

AMAR, THE BILL OF RIGHTS, supra, at 269. And they did so even if

their state constitutions didn’t mention “just compensation.” Ra-

ther, courts discerned the just-compensation principle to be a fun-

damental right. See, e.g., Gardner v. Newburgh, 2 Johns. Ch. 162, 166

(N.Y. 1816) (“a fair compensation must, in all cases, be previ-

ously made to the individuals affected . . . . This is a necessary qual-

ification accompanying the exercise of legislative power, in taking

private property for public uses; the limitation is admitted by the

soundest authorities, and is adopted by all temperate and civilized

governments, from a deep and universal sense of its justice.”);

Sinnickson v. Johnson, 17 N.J.L. 129, 146 (1839) (describing just com-

pensation as “operative as a principle of universal law”); Young v.

McKenzie, 3 Ga. 31, 44 (1847) (enforcing the right declared in the

Takings Clause because it embodies a “great common law princi-

ple . . . applicable to all republican governments, and which derived

no additional force, as a principle, from being incorporated into the

Constitution of the United States.”); Bradshaw v. Rodgers, 20 Johns.

103, 105–06 (N.Y. Sup. Ct. 1822) (same); Crenshaw v. Slate River Co.,

27 Va. (6 Rand.) 245, 265 (1828) (opinion of Carr, J.) (same); The

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22-12041 Opinion of the Court 41

Proprietors of the Piscataqua Bridge v. N.H. Bridge, 7 N.H. 35, 66 (1834)

(same); L.C. & C.R.R. Co. v. Chappell, 24 S.C.L. (Rice) 383, 387 (1838)

(same); Hall v. Washington County, 2 Greene 473, 478 (Iowa 1850)

(same); State v. Glen, 52 N.C. (7 Jones) 321, 330–31 (1859) (same).

When they had jurisdiction, federal courts, including the Su-

preme Court, also invoked or applied the just-compensation prin-

ciple against the actions of states as a fundamental right against all

governments. See, e.g., VanHorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.)

304, 310 (C.C.D. Pa. 1795) (“The [Pennsylvania] legislature . . . had

no authority to make an act devesting one citizen of his freehold,

and vesting it in another, without a just compensation.”); Fletcher v.

Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (“It may well be doubted

whether the nature of society and of government does not pre-

scribe some limits to the legislative power; and, if any be pre-

scribed, where are they to be found, if the property of an individ-

ual, fairly and honestly acquired, may be seized without compen-

sation.”); Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 52 (“[T]hat the leg-

islature can repeal statutes creating private corporations, or con-

firming to them property already acquired under the faith of pre-

vious laws, and by such repeal can vest the property of such corpo-

rations exclusively in the state, or dispose of the same to such pur-

poses as they may please, without the consent or default of the cor-

porators, we are not prepared to admit; and we think ourselves

standing upon the principles of natural justice, upon the funda-

mental laws of every free government, upon the spirit and the let-

ter of the constitution of the United States, and upon the decisions

of most respectable judicial tribunals, in resisting such a

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42 Opinion of the Court 22-12041

doctrine.”); Green v. Biddle, 21 U.S. (8 Wheat.) 1, 38 (1823) (“[B]y the

common law of Virginia, if not by the universal law of all free gov-

ernments, private property may be taken for public use, upon mak-

ing to the individual a just compensation.”); Bonaparte v. Camden &

A.R. Co., 3 F. Cas. 821, 828 (C.C.D.N.J. 1830) (The Takings Clause

“is the declaration of what in its nature is the power of all govern-

ments and the right of its citizens . . . .”).

And once a court recognized a just-compensation right

against a state, a plaintiff could recover damages for the violation

of that right. Plaintiffs brought their actions to recover compensa-

tion for takings in common-law forms of action—typically a tres-

pass action against an offending official. See Robert Brauneis, The

First Constitutional Tort: The Remedial Revolution in Nineteenth Cen-

tury State Just Compensation Law, 52 VAND. L. REV. 57, 67–83 (1999).

That official would justify their action as authorized under state

law. And the court would invalidate that defense when the action

was an uncompensated taking. 11 See id. at 67–68, 83–97. And then

courts could award damages available in trespass actions. Id. at 97–

100; see also Sinnickson, 17 N.J.L. at 147; Bradshaw, 20 Johns. at 103,

106; Bos. & R. Mill Corp. v. Gardner, 19 Mass. (2 Pick.) 33, 43 n.2

(1823); Thayer v. Boston, 36 Mass. (19 Pick.) 511, 515–17 (1837); State

11 Although rarer, as in Meigs, these state-law suits could also be brought

against federal officials who took property claiming official authority but vio-

lated the Federal Takings Clause. See, e.g., Meigs, 13 U.S. 11; Lee, 106 U.S. 196;

Amar, Of Sovereignty and Federalism, supra, at 1512 (discussing how a state-law

trespass action allowed suit against federal officials in Lee for an uncompen-

sated taking).

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22-12041 Opinion of the Court 43

v. Hooker, 17 Vt. 658, 672 (1845); Pumpelly v. Green Bay Co., 80 U.S

(13 Wall.) 166, 175–80 (1872). Although these damages were ini-

tially limited to retrospective relief, by 1860 some courts had al-

lowed plaintiffs to recover full permanent damages.12 Brauneis,

The First Constitutional Tort, supra, at 100; see also, e.g., Mayor &

Council of Rome v. Perkins, 30 Ga. 154 (1860). In effect, courts al-

lowed direct damages actions for “just compensation” to move for-

ward.

And during the later nineteenth and early twentieth centu-

ries, states abandoned rigid common-law forms of action as pre-

requisites for suits for damages and combined the courts of law and

equity. Cf. Douglas Laycock, How Remedies Became a Field: A History,

27 REV. LITIG. 161, 171 (2008) (“Anglo-American law abolished the

writ system, and merged the courts of law and equity, over roughly

a century from 1848 . . . to 1937 . . . . In the nineteenth century, we

begin to see transsubstantive treatises on damages . . . .”). As part

of this process, courts in the 1870s and 1880s described damages

actions to recover “just compensation” not only as trespass but also

as actions derived directly from constitutional guarantees. See Brauneis,

The First Constitutional Tort, supra, at 109–15; see also, e.g., City of El-

gin v. Eaton, 83 Ill. 535, 536–37 (1876) (“[T]he right to recover dam-

ages was given by the constitution . . . .”).

12 Retrospective relief might allow Fulton full recovery here because no evi-

dence in the record shows the possibility of return of his horses. So his retro-

spective loss would be their full value.

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44 Opinion of the Court 22-12041

Even as some state courts conceptualized just-compensation

clauses as not expressly providing a remedy, they held that the right

necessarily implied the existence of a guaranteed judicial remedy

allowing for recovery. See, e.g., Johnson v. City of Parkersburg, 16 W.

Va. 402, 426 (1880) (“Where the Constitution forbids a damage to

the private property of an individual, and points out no remedy,

and no statute gives a remedy, for the invasion of his right of prop-

erty thus secured, the common law, which gives a remedy for every

wrong, will furnish the appropriate action for the redress of his

grievance.”) (emphasis in original); Householder v. City of Kansas, 83

Mo. 488, 495 (1884) (quoting Tapley v. Forbes, 84 Mass. (2 Allen) 20,

24 (1861)) (“Wherever a statute or the organic law creates a right,

but is silent to the remedy, the party entitled to the right ‘may resort

to any common law action which will afford him adequate and ap-

propriate means of redress.’”).

Federal courts, too, inferred causes of action, directly under

state constitutions, against local governments for damages. See,

e.g., Blanchard v. City of Kansas, 16 F. 444, 446 (W.D. Mo. 1883) (Mil-

ler, J.) (“[S]ince the positive declaration of the constitution is that

private property shall not be taken or damaged for public use with-

out just compensation, . . . it is bound in some way to make that

just compensation, and . . . the law shall compel it to do it.”); see

also Sumner v. Philadelphia, 23 F. Cas. 392 (C.C.E.D. Pa. 1873) (award-

ing damages for common-law taking).

We emphasize that these courts recognized actions directly

under state constitutions without acknowledging that doing so

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22-12041 Opinion of the Court 45

marked a fundamental change from the previous common-law ac-

tions litigants used to obtain “just compensation” in the form of

damages. See Elgin, 83 Ill. at 536–37; Johnson, 16 W. Va. at 424–26;

Householder, 83 Mo. at 495; Blanchard, 16 F. at 446–47. 13 For these

courts, “the limitation, turning as it did on compensation, obvi-

ously and necessarily encompassed the remedial grant . . . .”

Brauneis, The First Constitutional Tort, supra, at 113. And so, in ef-

fect, these courts recognized as direct actions the same damages

actions that other courts earlier did as trespass actions. See, e.g.,

Blanchard, 16 F. at 447 (“[T]he other party has . . . the right that the

law gave her to recover these damages in any proper form of ac-

tion.”).

In sum, through the nineteenth century, it became clear that

state just-compensation clauses inherently contained a right to

bring damages actions. 14

13 West Virginia came the closest to acknowledging an innovation. It partially

justified its decision by stating that “[a] constitutional prohibition forbidding

an injury to the property of a citizen is certainly as effective as a statute framed

for the same purpose . . . .” Johnson, 16 W. Va. at 425. But it made this state-

ment after a long summary describing how “the pride of the common law

[was] that it furnishes a remedy for every wrong.” Id. at 424. So West Virginia

framed its decision as a logical extension of traditional common-law practices.

14 The Dissent chastises us for “point[ing] to no decision from the early republic

that permitted a suit at law against the government for compensation under

the Takings Clause.” See Diss. Op. at 23–26 (emphasis in original). It empha-

sizes that at the Founding, actions to recover “just compensation” proceeded

in rigid common-law forms. See id. But it misunderstands the key point. True,

at the Founding, litigants had to bring state actions for damages like “just com-

pensation” in statutorily prescribed vehicles or rigid common-law forms like

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46 Opinion of the Court 22-12041

And as we’ve mentioned, this history of a just-compensation

right under state law helps explain why a direct federal right of ac-

tion exists. That’s so because despite the availability of state reme-

dies for state and local-government takings, the Framers of the

Fourteenth Amendment thought state damages actions for “just

compensation” were an insufficient remedy.

So with Section One of the Fourteenth Amendment, they

constitutionalized a right to bring a federal action against local gov-

ernments. In doing so, the Framers overruled Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833).

In Barron, the Supreme Court considered the case of a plain-

tiff who sought “to recover damages for injuries to [his] wharf-

trespass. See Brauneis, The First Constitutional Tort, supra, at 69–71. That was

how the legal system worked back then. See id. But states abolished rigid forms

of action over the mid-nineteenth to early-twentieth century. See Laycock,

How Remedies Became a Field, supra, at 171. As part of the process, courts de-

scribed the old common-law actions for “just compensation” as actions di-

rectly under state takings clauses. See Brauneis, The First Constitutional Tort,

supra, at 109–15. But, at bottom, both the common-law and direct-takings ac-

tions were the same kind of actions with a shared lineage. See id. They both

ensured that citizens could always exercise their constitutional rights to obtain

“just compensation” in the courts. Compare Bos. & R. Mill Corp., 19 Mass. at

43 n.2, with Householder, 83 Mo. at 495. Today, we have a federal right to “just

compensation” against local governments that guarantees Americans may re-

cover damages in a federal forum with jurisdiction. See U.S. CONST. amends.

V; XIV, § 1. And we have a federal judicial system that recognizes only “one

form of action—the civil action.” See FED. R. CIV. P. 2. So we translate the

language of the Founding to the modern world and recognize the Constitu-

tion provides a cause of action directly under the Takings Clause. And it may

be brought in federal courts with appropriate jurisdiction.

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22-12041 Opinion of the Court 47

property . . . arising from the actions” of the local government of

Baltimore. 32 U.S. at 243 (syllabus). The plaintiff contended that

the Takings Clause directly applied to the states. Id. at 247. So, he

asserted, Baltimore committed “an actionable tort” by “depriv[ing]

a citizen of his property, though for public uses, without indemni-

fication . . . .” Id. at 245 (syllabus). The Supreme Court disagreed.

It held that the Takings Clause “is intended solely as a limitation on

the exercise of power by the government of the United States, and

is not applicable to the legislation of the states.” Id. at 250–51. As

a result, the Court, as the ultimate federal court, determined it

“ha[d] no jurisdiction of the cause . . . .” Id. at 251.

The Framers of the Fourteenth Amendment intended for

the Amendment to overturn Barron. Despite extensive state-law

protections for “just compensation” by the 1860s, the Framers

made it clear that they wanted federal enforcement against state

and local uncompensated takings to be available.

For his part, John Bingham, the author of Section One of

the Fourteenth Amendment, noted that before Reconstruction, the

Takings Clause was not a “limitation[] upon the States as can be

enforced by Congress and the judgment of the United States courts.”

See CONG. GLOBE, 39TH CONG., 2d Sess. 811 (1867) (emphasis

added); see also id. 1st Sess. 1065 (1866) (statement of Rep. Bing-

ham) (Section One was “proposed . . . to protect the thousands and

tens of thousands and hundreds of thousands of loyal . . . citizens

of the United States whose property, by State legislation, has been

wrested from them under confiscation . . . .”). So he expressed the

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48 Opinion of the Court 22-12041

desire for the Fourteenth Amendment to change that state of af-

fairs. See id. 2d Sess. 811 (1867).

Bingham later explained that he “had read” Barron, which he

described as a case where “the city had taken private property for

public use, without compensation as alleged, and there was no re-

dress for the wrong in the Supreme Court of the United States.” Id., 42D

CONG., 1st Sess. App. 84 (1871) (emphasis added). Barron “induced

[Bingham] to attempt to impose by constitutional amendments

new limitations upon the power of the States . . . .” Id. As Bingham

saw things, when left to their own devices, the States “took prop-

erty without compensation, and the [citizen] had no remedy.” Id.

at App. 85. But the Fourteenth Amendment was intended to fix

that. 15

15 Bingham made these later comments in debates over the Ku Klux Klan Act

of 1871, 17 Stat. 13 (1871), section one of which is now codified as 42 U.S.C.

§ 1983. It might be easy to construe his advocacy for § 1983, proclaiming that

“[t]he people of the United States are entitled to have their rights guarantied

to them by the Constitution of the United States, protected by national law,”

as a belief that no remedy yet secured “just compensation” in court. See CONG.

GLOBE, 42D CONG., 1st Sess. App. 85 (1871). But Bingham clarified that while

“the negative limitations imposed by the Constitution on States can be en-

forced by law against individuals and States,” Congress can also provide for

additional enforcement on top of that. See id. So, for example, the Thirteenth

Amendment bars slavery, a prohibition that could presumably be enforced in

court, even in the absence of legislation. But Congress can (and did) add an

extra protection, making it a felony to enslave someone. Id. Bingham’s fierce

advocacy for the Ku Klux Klan Act can also be explained by his emphasis on

the other parts of the Act beyond § 1983, on which he appeared more focused.

See id. For example, the Act provided additional civil and criminal penalties

for those who conspiratorially interfered with civil rights. Ku Klux Klan Act

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22-12041 Opinion of the Court 49

Another leading Framer of the Fourteenth Amendment ech-

oed Bingham’s call for federal protections against takings. Senator

Jacob Howard highlighted the need to pass the Fourteenth Amend-

ment because “it has been repeatedly held that the restriction con-

tained in the Constitution against the taking of private property for

public use without just compensation is not a restriction upon State

legislation . . . .” Id., 39TH CONG., 1st Sess. 2765 (1866). Instead,

“the States [were] not restrained from violating the principles em-

braced in [the Bill of Rights] except by their own local constitu-

tions, which may be altered from year to year.” Id. at 2766.

Howard and Bingham believed that state protection for the

right to “just compensation” just wasn’t enough. Rather, they

thought, federal law needed to independently protect the just-com-

pensation principle. And they thought so even though, as we’ve

noted, by the late 1860s and 70s, when the Fourteenth Amendment

was ratified, the law had developed under state courts to the point

where a right to “just compensation” included a right to sue for

damages from an uncompensated taking. So at a minimum, the

of 1871, §§ 2–6, 17 Stat. at 13–15. Indeed, he highlighted that some “combina-

tions . . . destroying the property of the citizen” may be “too powerful to be

overcome by judicial process . . . .” See CONG. GLOBE, 42D CONG., 1st Sess.

App. 85 (1871). And we must also consider his comments against the back-

ground of a lack of federal-question jurisdiction for the lower federal courts

until 1875, see Act of Mar. 3, 1875, ch. 137, § 1, 18 Stat. at 470, and the Supreme

Court’s failure to recognize the right to “just compensation” as applicable to

the states until 1897. See Chi., B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241

(1897). Faced with that judicial environment, legislation affirmatively provid-

ing a cause of action for takings likely seemed more important.

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50 Opinion of the Court 22-12041

Framers of the Fourteenth Amendment understood that they were

constitutionalizing a right to sue for “just compensation” against

state and local governments in a federal forum.

The Dissent offers no persuasive retort to all this antebellum

and Reconstruction history. See Diss. Op. at 25–26. Instead, it dis-

misses evidence from state law because, it says, “[m]any jurists

viewed state constitutional declarations of rights differently than

federal declarations of the same rights.” 16 See id. at 25 (citing Jud

16 Ironically, the Dissent also asserts that almost all rights in the Constitution,

including the right to “just compensation,” draw their meaning from pre-Rat-

ification understandings. See Diss. Op. at 7. So under the Dissent’s view, the

Takings Clause would have to draw its meaning from its few precursors-—

namely the Vermont and Massachusetts constitutions. See Part III.D.2, supra.

Put more generally, the federal right to “just compensation” would be defined

with the same contours as the state rights to “just compensation.” Cf. Baude,

Campbell & Sachs, General Law and the Fourteenth Amendment, supra n.6, at 1199

& n.81, 1236 (explaining that certain rights had “determinate legal content,”

including the right to just compensation). As a result, whether state constitu-

tional guarantees of “just compensation” automatically secured judicial relief

for takings would be critically relevant. And Vermont’s and Massachusetts’s

constitutions did. See Bos. & R. Mill Corp., 19 Mass. at 43 n.2 (“Where it appears

that a resolve of the legislature, directing the location of a road, makes no pro-

vision for a ‘just compensation’ to the owners of property to be taken for the

purposes of the road, agreeably to the provisions of the constitution, the

agents of the State in constructing the road are liable to be treated as trespass-

ers by those whose property is so taken, or upon whose property such agents

enter for locating the road. Compensation in such case should be made or

provided for when the property is taken.” (internal citation omitted)); Thayer,

36 Mass. at 515–17 (recognizing broad municipal liability for the actions of

municipal officers); Hooker, 17 Vt. at 672 (“[I]f the sheriff [unlawfully]

takes property . . . he must answer in a suit for damage . . . .”).

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22-12041 Opinion of the Court 51

Campbell, Constitutional Rights Before Realism, 2020 U. Ill. L. Rev.

1433, 1441–42); but see William Baude, Jud Campbell & Stephen E.

Sachs, General Law and the Fourteenth Amendment, 76 STAN. L. REV.

1185, 1199 & n.81, 1236 (2024) (explaining that antebellum “Amer-

icans enjoyed certain fundamental legal rights with determinate le-

gal content—rights that ‘no state could rightfully abridge,’” includ-

ing the right to just compensation for takings). And it effectively

dismisses the intent of the Framers of the Fourteenth Amendment

as irrelevant. See Diss. Op. at 25–26.

But the Takings Clause applies to local governments only through

the Fourteenth Amendment. So the original intent of Americans

when they ratified that Amendment governs its meaning. See gen-

erally AMAR, THE BILL OF RIGHTS, supra. And leading up to the Civil

War, Americans loudly confirmed that they believed the “just com-

pensation” right to be judicially enforceable. They also made clear

they intended the new Amendment to overturn Barron and make

the right federally enforceable.17

17 We note that the Dissent’s minimum enforcement mechanism for the Tak-

ings Clause—private bills—is an ill fit for violations by local governments.

Congress isn’t liable for violations by local governments, so it has no obliga-

tion to pay for them. And Congress likely can’t force state legislatures to pass

bills paying for takings by local governments. See New York v. United States, 505

U.S. 144, 179 (highlighting that “[n]o . . . constitutional provision authorizes

Congress to command state legislatures to legislate”). So even if at the Found-

ing Congress could handle takings violations through private bills, the Four-

teenth Amendment demands an alternative remedy. Cf. Fuld v. Palestine Liber-

ation Org., 145 S. Ct. 2090, 2105 (2025) (recognizing a difference in the appro-

priate jurisdictional inquiries under the Due Process Clauses of the Fifth and

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52 Opinion of the Court 22-12041

Given this robust support for the just-compensation princi-

ple after the Civil War, it’s no wonder that the Supreme Court rec-

ognized it as the first provision of the Bill of Rights to apply to the

States. See Chi., B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241

(1897). In fact, the Court did so fifty years before Justice Hugo

Black launched a conversation about whether the Fourteenth

Amendment incorporated the protections of the Bill of Rights. See

Adamson v. California, 332 U.S. 46, 74–75 (1947) (Black, J., dissenting)

(concluding the Framers of the Fourteenth Amendment intended

to apply the protections of the Bill of Rights to the states).

And the Court later heard several equitable cases against lo-

cal governments proceeding directly under the Takings Clause

(with no reference to § 1983 or any other statutory cause of action).

See Norwood v. Baker, 172 U.S. 269, 276 (1898); Cuyahoga River Power

Co. v. Akron, 240 U.S. 462, 463 (1916); Village of Euclid v. Ambler Realty

Co., 272 U.S. 365, 384 (1926); Del., L. & W. R. Co. v. Morristown, 276

U.S. 182, 188 (1928); Dohany v. Rogers, 281 U.S. 362, 364 (1930). 18 So

once the court incorporated the right to “just compensation”

Fourteenth Amendments to “respect . . . the distinct sovereignties” the two

Amendments govern).

18 The Supreme Court observed that “the mere fact that the Takings Clause

provided the substantive rule of decision for . . . equitable claims . . . does not

establish that it creates a cause of action for damages, a remedy that is legal,

not equitable, in nature.” DeVillier, 601 U.S. at 292. So these cases aren’t con-

clusive on the question before us. Still, they offer additional support that the

Takings Clause directly mandates a federal remedy against local governments

independent of a statutory cause of action.

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22-12041 Opinion of the Court 53

against the states, it was clear that the Takings Clause included a

direct federal remedy for its violation by state and local govern-

ments.

Altogether, this history establishes that from the Founding

through Reconstruction, Americans believed that the just-compen-

sation principle, when it applied, offered relief—even if at times,

the provided forum was actually in Congress or before state courts

in common-law actions. And that relief always included damages.

The Framers of the Fourteenth Amendment then ensured a federal

guarantee of the “just compensation” remedy against state and lo-

cal governments. This history supports the conclusion that a fed-

eral cause of action for damages exists directly under the Takings

Clause.

3. The direct cause of action under the Takings Clause

is available here against Fulton County.

As we’ve discussed, the text, structure, and history of the

Constitution all lead to the conclusion that the Takings Clause con-

tains a direct cause of action. Now, we consider whether that direct

cause of action is available to Fulton. We conclude that it is.

The Supreme Court’s habeas jurisprudence teaches us that

a substitute remedy for a constitutional remedy may suffice, if it’s

no narrower than the constitutional remedy. See Part III.D.1, supra.

But no other remedy available to Fulton at least duplicates the

scope of the just-compensation remedy under the Fifth and Four-

teenth Amendments.

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54 Opinion of the Court 22-12041

Congress hasn’t provided for an adequate remedial system

for uncompensated takings by local governments in situations like

this one—leaving Fulton remediless. Two forms of federal judicial

relief might be adequate to vindicate the just-compensation right:

damages actions under 42 U.S.C. § 1983 and equitable relief. But

neither completely captures the constitutional guarantee here.

We begin with § 1983. Fulton filed under § 1983, which al-

lows a litigant to seek damages against “[e]very person who, under

color of any statute, ordinance, regulation, custom, or usage, of

any State . . . subjects . . . any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . .” 42 U.S.C. § 1983. That allows suits against local

governments to recover “just compensation.” Knick, 588 U.S. at

194. But a limitation on § 1983 cases bars a class of Fifth Amend-

ment plaintiffs.

Under Monell v. Department of Social Services, a local govern-

ment may not be sued under § 1983 “for an injury inflicted solely

by its employees or agents.” 436 U.S. at 694. Rather, suits may

move forward only “when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the in-

jury . . . .” Id.

This limitation makes the § 1983 remedy narrower than the

Takings Clause’s direct cause of action in some cases, like Fulton’s.

That’s so because under the Takings Clause, the duty to provide

“just compensation” attaches to a government when its officer acts

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22-12041 Opinion of the Court 55

“within the general scope of their duties.” See Darby Dev. Co. v.

United States, 112 F.4th 1017, 1024 (Fed. Cir. 2024). And it doesn’t

matter whether that taking resulted directly from a “regulation (or

statute, or ordinance, or miscellaneous decree).” Cedar Point

Nursery v. Hassid, 594 U.S. 139, 149 (2021). So Fulton could satisfy

that showing here, even though he can’t establish that the County

took his horses under an official policy or custom. 19

To be sure, the lesser showing courts have required in tak-

ings cases doesn’t relieve a litigant of his obligation to show that

the taking is traceable to the governmental entity alleged to have

committed it. And it’s not enough to find simply that an officer

employed by the relevant government interfered with property.

See, e.g., In re Chi., Milwaukee, St. Paul & Pac. R.R. Co., 799 F.2d 317,

326 (7th Cir. 1986) (“Accidental, unintended injuries inflicted by

governmental actors are treated as torts, not takings.”).

But even so, the Supreme Court has repeatedly found the

government liable for takings that occur “without express statutory

authority or prohibition . . . . as a consequence of a[n] . . . officer’s

discharge of his normal responsibilities . . . .” See Ramirez de Arel-

lano v. Weinberger, 724 F.2d 143, 151–53 (D.C. Cir. 1983) (Scalia, J.)

(collecting cases), vacated & reheard, 745 F.2d 1500 (D.C. Cir. 1984)

19 For this reason, Fulton didn’t “waive” his right to “just compensation” when

he conceded he could not meet Monell’s policy-or-custom requirement as the

Dissent contends. See Diss. Op. at 3. The Takings Clause offers a broader

protection than § 1983. The key point is the statute sets a higher bar for relief

than the Constitution imposes on Fulton.

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56 Opinion of the Court 22-12041

(en banc), vacated sub nom., Weinberger v. Ramirez de Arellano, 471

U.S. 1113 (1985). 20 So when an officer takes property within his

typical responsibilities, the right to “just compensation” kicks in

against his government.

Great Falls Manufacturing Co. v. Garland shows how this

works. 124 U.S. 581 (1888). There, the Court weighed whether a

compensable taking occurred when the Secretary of War took

property to construct a dam outside a surveyed area Congress au-

thorized for takings. Id. at 595–96. Even though the Secretary’s

actions were not fully in accord with official policy, the Court de-

termined that “still the United States [was] under an obligation im-

posed by the constitution to make just compensation for all that

ha[d] been in fact taken and [was] retained for the proposed dam.”

Id. at 596. The Court emphasized that the Secretary “honestly and

reasonably exercise[d] the discretion with which he was invested,”

even if he ultimately went beyond official policy. Id. at 597.

Or consider Portsmouth Harbor Land & Hotel Co. v. United

States. 260 U.S. 327 (1922). There, the Supreme Court considered

whether a plaintiff properly alleged a taking when officers manning

a fort neighboring his resort property planned to repeatedly shoot

cannon projectiles over that property. Id. at 328–30. The Court

found the plaintiff met his burden for his case against the

20 Although the en banc court vacated the panel opinion in Ramirez de Arellano,

it “did not disagree with the panel’s analysis of the authorization issue.” Del-

Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358, 1363 (Fed. Cir. 1998).

On this point, then-Judge Scalia’s opinion remains persuasive.

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22-12041 Opinion of the Court 57

government to proceed, even though he did not allege a specific

policy authorizing the firing. See id. at 330. It was enough that

the “United States built the fort and put in the guns and the

men . . . .” Id. But if the plaintiff had to meet § 1983’s added re-

quirement to plead an official policy or custom, his claim would

have likely failed because all he could allege was that his harm

stemmed from the actions of the government’s agents.

United States v. Causby presents yet another example. 328 U.S.

256 (1946). In that case, the Supreme Court found the government

on the hook for a taking when the Civil Aeronautics Authority au-

thorized flights that passed 83 feet above the plaintiff’s property.

That was so even though Congress had authorized the taking of

only “navigable airspace”—defined by regulation as at least 300 feet

above the ground. Id. at 258–60, 263–64.

This requirement of “just compensation” applies just as

equally to local governments as it does to the federal government.

When, as in Georgia, local governments are political subdivisions

of a state, see GA. CODE ANN. § 25-3-4 (2025), they must furnish

compensation for their takings. See Knick, 588 U.S. at 189 (“If a local

government takes private property without paying for it, that gov-

ernment has violated the Fifth Amendment—just as the Takings

Clause says . . . . ”). After all, the Takings Clause is “applicable to

the States through the Fourteenth Amendment . . . .” Cedar Point

Nursery, 594 U.S. at 147. And the Framers of the Fourteenth

Amendment, as we’ve mentioned, specifically sought to reverse

Barron v. Baltimore, the decision where the Supreme Court held

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58 Opinion of the Court 22-12041

that, before the Fourteenth Amendment, the Takings Clause did

not apply to the actions of a city. See CONG. GLOBE, 42D CONG., 1st

Sess. App. 84 (1871) (statement of Rep. Bingham) (discussing how

Barron was top of mind when drafting Section One of the Four-

teenth Amendment).

So if like in Great Falls Manufacturing Co., a city official exer-

cised eminent domain outside a limited area that official policy au-

thorized, his local government would still be liable. Or if, as in

Portsmouth, a local police force engaged in repeated firing practice

over private property, its government would be responsible. Or, as

in Causby, if a fire department consistently flew helicopters 83 feet

over an individual’s property when the city council only authorized

flights at a minimum altitude of 300 feet, the local government

would pay the price. In all these examples, a plaintiff would be en-

titled to “just compensation” from his local government but would

not necessarily be able to plead a § 1983 action. 21

21 The Dissent acknowledges that the federal government is liable for takings

“perpetrated by its officers acting in ‘the normal scope of [their] duties.’” See

Diss. Op. at 30 (alteration in original). Yet it contends the Takings Clause of-

fers less protection for takings that officers of local governments commit. See

id. This position is inconsistent with its argument that the Fourteenth Amend-

ment’s protections apply identically between the federal and state govern-

ments. See id. at 26. And it’s also odd given the well-documented focus of the

Framers on overturning Barron, which, as we’ve noted, held that the Takings

Clause applied to only those takings by the federal government, not the local-

government defendant in that case. See Part III.D.2, supra. Bingham and How-

ard couldn’t have been clearer that they sought to extend the federal protec-

tions of the Takings Clause to local governments. See id. Indeed, we doubt

the action brought in Barron itself would have satisfied Monell’s policy-or-

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22-12041 Opinion of the Court 59

The gap between § 1983 liability for a county’s taking and a

county’s liability for the same taking under the Takings Clause

leaves a substantial class of plaintiffs who can’t recover “just com-

pensation” under § 1983. Compare Ramirez de Arellano, 724 F.2d at

151 (describing takings liability as “a concept akin to, though not

as liberal as, the ‘scope of employment’ test for application of the

doctrine of respondeat superior in private law”), with Monell, 436 U.S.

at 691 (“[A] municipality cannot be held liable under § 1983 on a

respondeat superior theory.”).22 As Fulton’s own case shows, any

time officers seize property as part of a lawful investigation but the

government later fails to return it for unknown reasons, § 1983 does

not afford a “just compensation” remedy. Cf. Jenkins v. United States,

71 F.4th 1367, 1373–74 (Fed. Cir. 2023) (recognizing “just

custom requirement. See Barron, 32 U.S. at 243–44 (syllabus) (summarizing

that the plaintiff’s injuries were caused by flooding from streams of water di-

verted by the city “partly by adopting new grades of streets, and partly by the

necessary results of paving, and partly by mounds, embankments and other

artificial means” that don’t appear to have resulted from an officially adopted

policy or custom as Monell and its progeny construe the term).

22 Amicus Institute for Justice contends that Monell’s policy-or-custom require-

ment does not apply to takings claims because “[a] just-compensation claim

necessarily sounds against governmental entities.” But Monell expressly con-

sidered that takings actions would proceed under § 1983, yet it carved out no

exception to its policy-or-custom requirement for takings violations. See Mo-

nell, 436 U.S. at 686–87, 694. Nor does anything in the text of § 1983 suggest a

special carveout for takings violations. See 42 U.S.C. § 1983. And almost all

constitutional rights are asserted against state action. See, e.g., U.S. CONST.

amends. I; II; III; IV; V; VI; VII; VIII; XIV, § 1; XV, § 1; IX; XXIV, § 1; XXVI, §

1.

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60 Opinion of the Court 22-12041

compensation” liability where officers do not return seized prop-

erty at the conclusion of an investigation); Frein v. Pa. State Police,

47 F.4th 247, 252–53 (3d Cir. 2022) (same).

Congress can’t prescribe an exclusive remedy for uncompen-

sated takings that is more restrictive than the Takings Clause’s

guarantee of “just compensation.”23 Its authority to enact § 1983

comes from Section 5 of the Fourteenth Amendment, which au-

thorizes Congress “to enforce, by appropriate legislation” the

Amendment. See Monell, 436 U.S. at 665. But that provision gives

“no power to restrict, abrogate, or dilute” the intrinsic protections

of the Bill of Rights. See Katzenbach v. Morgan, 384 U.S. 641, 651

n.10 (1966). And the Takings Clause mandates compensation for

litigants who have suffered takings by government employees act-

ing within the normal scope of their duties, whether under official

local policy or not. So some other federal mechanism must allow

litigants who have suffered takings by their local government to re-

cover “just compensation.”

23 We also emphasize another way § 1983 offers an incomplete remedy for

takings violations: The statute does not allow suits against state governments

for takings because it doesn’t abrogate their sovereign immunity. See Robinson

v. Ga. Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992); Part III.D.4, infra

(explaining the doctrine of sovereign immunity does not bar a direct takings

action). As a statutory cause of action, a § 1983 suit could move forward

against state governments only if Congress abrogated their immunity, which

Congress did not. See Quern v. Jordan, 440 U.S. 332, 341 (1979). So there is no

federal statutory damages remedy for takings by a state.

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22-12041 Opinion of the Court 61

The other federal remedy that might apply is equitable re-

lief. See Ex Parte Young, 209 U.S. 123 (1908). In the context of a

takings claim, equitable relief would be an order enjoining the gov-

ernment from taking or possessing the disputed property, requir-

ing the government to leave the property in the possession of its

owner. See First English, 482 U.S. at 319. But the Supreme Court

has already recognized that equitable relief is inadequate because

it does not allow for recovery of the rental value of property that

the government temporarily possesses. See id. Nor does it offer

any remedy in a case like the one here, where the government al-

ready took property and its location is unknown—or worse, its

value is destroyed. At bottom, “just compensation” is a form of

“legal relief,” see City of Monterey, 526 U.S. at 710–11, so a system for

the recovery of legal relief necessarily must exist to fulfill the prom-

ise of “just compensation.”

One final remedy could be sufficient under the Fifth Amend-

ment: relief that state-law causes of action authorize. As we’ve

mentioned, the Supreme Court has said that “constitutional con-

cerns do not arise when property owners have other ways to seek

just compensation,” including state-law vehicles. Id. at 292. But we

have no evidence, and some doubts, that all states permit actions

to recover “just compensation” for personal property loss, like

horses. Cf. Raylu Enters., Inc. v. City of Nobesville, 205 N.E.3d 260,

264 (Ind. Ct. App. 2023) (rejecting an argument that Indiana’s in-

verse-condemnation actions allow for the recovery of compensa-

tion for personal property taken); Holmes Protection of Pittsburgh,

Inc. v. Port Auth. of Allegheny Cnty., 495 A.2d 630, 633 (Pa. Commw.

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62 Opinion of the Court 22-12041

Ct. 1985) (holding that an inverse-condemnation action could not

be sustained where there was a taking of personal but no real prop-

erty); Vaughn v. City of Muskogee, 359 P.3d 192, 196 n.1 (Okla. Civ.

App. 2015) (refusing to opine on whether a plaintiff can bring an

inverse-condemnation action for a taking of personal property un-

related to real property); Allianz Global Risks U.S. Ins. Co. v. State, 161

N.H. 121, 126 (2010) (declining to address whether inverse-con-

demnation actions are cognizable for loss of personal property);

WIS. STAT. § 32.19(3)(a) (2025) (capping compensation for losses to

personal property from condemnation “at an amount equal to the

reasonable expenses that would have been required to relocate such

property”).

In Georgia, where Fulton is, to our knowledge, the state su-

preme court has not ruled on the issue. See Pribeagu v. Gwinnett

County, 785 S.E.2d 567, 571 (Ga. Ct. App. 2016). And it wasn’t until

2016 that a single panel of the intermediate appellate court in the

state, reversing a lower court on the issue, found personal property

damage recoverable in an inverse condemnation action.24 Id. That

doesn’t offer assurances that all inverse-condemnation actions al-

low recovery of personal property.

24 We do note, however, that other panels seemed to take it for granted that

compensation could be awarded for personal property takings. See, e.g., How-

ard v. Gourmet Concepts Intern, Inc., 529 S.E.2d 406, 410 (Ga. Ct. App. 2000)

(“Personal injury, however, for purposes of inverse condemnation does not

constitute personal property that can be taken.”); Rutherford v. DeKalb County,

651 S.E.2d 771, 774 (Ga. Ct. App. 2007) (same).

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Plus, we’ve noted that Georgia requires “[a]ll claims against

counties [to] be presented within 12 months after they accrue or

become payable or the same are barred . . . .” GA. CODE ANN. § 36-

11-1 (2025). And it’s too late now for Fulton to comply with that

requirement. But a direct action under the Takings Clause includes

no such limitation. So Georgia’s state remedy is narrower than the

direct cause of action under the Takings Clause. 25

25 The Dissent takes issue with our observation that Georgia’s notice require-

ment makes the state’s inverse-condemnation action narrower than the Tak-

ings Clause directly provides. See Diss. Op. at 33. It warns that our logic de-

mands that any procedural constraint on a constitutional action unconstitu-

tionally narrows it. Id. But the Dissent misconstrues our point. The problem

is that Georgia, a state, unilaterally imposed this requirement on a remedy that

the federal Constitution guarantees. See Knick, 588 U.S. at 194 (rejecting that

a Fifth Amendment claim could be contingent on plaintiffs pursuing state pro-

cedures). We agree with the Dissent that Congress may impose reasonable

procedural rules on the adjudication of takings claims to ensure the efficient

administration of justice. See Diss. Op. at 32–33. We see a problem only if

Congress attempts to add a substantive constraint on the scope of the Takings

Clause, wholesale barring a class of litigants entitled to relief. That’s the result

under § 1983 claims against local governments, as Monell construes the statute.

We similarly would take issue if Congress were to adopt a procedural rule so

unreasonably restrictive as to unfairly prevent takings claimants from having

their day in court. See U.S. CONST. amend. XIV, § 5 (authorizing Congress “to

enforce, by appropriate legislation” the protections of the Fourteenth Amend-

ment, which include the incorporated Takings Clause (emphasis added)). But

we think the Constitution permits Congress, for example, to set a reasonable

statute of limitations for takings claims with its authority “to enforce” the

Fourteenth Amendment. See id. And nobody is suggesting that the Federal

Rules of Civil Procedure don’t apply to takings claims. Similarly, state courts

have no obligation to dispense with their regular procedural rules when adju-

dicating takings claims. See DeVillier, 601 U.S. at 292. But they can’t be the

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64 Opinion of the Court 22-12041

At bottom, “[t]he availability of any particular compensa-

tion remedy, such as an inverse condemnation claim under state

law, cannot infringe or restrict the property owner’s federal consti-

tutional claim . . . .” Knick, 588 U.S. at 191. We reiterate “[t]he fact

that the State has provided a property owner with a procedure that

may subsequently result in just compensation cannot deprive the

owner of his Fifth Amendment right to compensation under the

Constitution, leaving only the state law right.” Id. A federal right

guarantees a federal remedy not dependent on the whims of states.

The Dissent suggests one other remedy that it claims Fulton

could have availed himself of: suits against the officers who con-

ducted the takings under § 1983 or state law. Diss. Op. at 3–6, 32.

But even the Dissent recognizes why that doesn’t offer Fulton re-

lief—officers receive qualified immunity under federal law and

exclusive forum for this constitutional remedy if they have procedures that nar-

row the availability of that remedy without any congressional blessing. Cf. id.

at 293 (remanding only because petitioner had a cause of action under state

law, and the state promised not to oppose amendment of his complaint to

pursue it); Knick, 588 U.S. at 194. That’s because the Takings Clause promises

a federal remedy independent of the whims of states. See Knick, 588 U.S. at

194; Part III.D.1 & 2, supra. And only Congress can impose ultimate proce-

dural bars because the Fourteenth Amendment charges Congress specifically

with its enforcement. See U.S. CONST. amend. XIV, § 5. But, here, because of

Monell, the only time Fulton could have conceivably sought relief in any court

would have been in state court within the one-year deadline Georgia alone

set. GA. CODE ANN. § 36-11-1 (2025). So Georgia, as the exclusive forum, has

unilaterally and unconstitutionally imposed a procedural bar on Fulton’s tak-

ings claim—assuming Fulton could have ever sought relief in Georgia courts,

which remains unclear. Cf. Pribeagu, 785 S.E.2d at 571.

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22-12041 Opinion of the Court 65

official immunity under Georgia law. See id. at 5–6 (citing Griffith v.

Robinson, 884 S.E.2d 532, 534–35 (Ga. Ct. App. 2023) and then citing

Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002)). The parties

have not presented, and we are not aware of, any clearly established

law in this circuit to overcome qualified immunity in a § 1983 action

against the relevant officers that took Fulton’s horses. Cf. Gilmore v.

Ga. Dep’t of Corr., No. 23–10343, 2025 WL 1911728, at *8 (11th Cir.

July 11, 2025) (en banc) (articulating the standard for overcoming

qualified immunity under our precedents.). But the Takings Clause

demands the provision of “just compensation” regardless of any

officer immunity. See U.S. CONST. amend. V. Plus, just as funda-

mentally, once an officer commits a taking, it’s his government, not

necessarily the officer himself, that the Constitution puts on the

hook for that compensation. See Knick, 588 U.S. at 189 (“If a local

government takes private property without paying for it, that gov-

ernment has violated the Fifth Amendment . . . .”).

At the end of the day, both we and the Dissent agree that

Fulton currently has access to neither federal nor state relief. Mo-

nell categorically bars him from ever suing his local government in

federal court for the compensation it owes him. And Georgia law

does not allow him to seek compensation in its courts today. But

unlike the Dissent, we don’t think the Constitution authorizes the

conclusion that he must go remediless. The Constitution doesn’t

promise “just compensation” only to allow a local government’s

whim not to provide it.

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66 Opinion of the Court 22-12041

Because no other constitutionally adequate remedy for tak-

ings of personal property by local governments exists here, we hold

that the Takings Clause directly provides for judicial relief.

4. Sovereign immunity does not bar a direct cause of ac-

tion under the Takings Clause.

The Dissent disagrees with our textual, structural, and his-

torical analysis. Besides concluding that the Takings Clause’s guar-

anteed damages remedy doesn’t give a litigant the right to sue for

damages, it argues that sovereign immunity bars a direct takings

cause of action. Diss. Op. at 15–19. We agree that it would be odd

for the Constitution to provide an outside check on Congress only

to require Congress to waive its sovereign immunity to enforce that

limitation. But we disagree that sovereign immunity has relevance

here. Unlike the Dissent, we think the Takings Clause has bite.

To start, sovereign immunity can’t undermine a cause of ac-

tion that the Constitution expressly makes a right. See PennEast

Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 508 (2021) (“[A] State

may be sued if it has agreed to suit in the ‘plan of the Convention,’

which is shorthand for ‘the structure of the original Constitution

itself.’” (citation omitted)). That’s why the Supreme Court has

been clear that when “there [is] no remedy by which [a] plaintiff

could have recovered compensation for [a] taking . . . ,” he may at

least sue to recover his taken property under a “constitutional ex-

ception to the doctrine of sovereign immunity . . . .” Malone v.

Bowdoin, 369 U.S. 643, 647–48 (1962) (quoting Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 696–97 (1949)) (internal

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22-12041 Opinion of the Court 67

quotation marks omitted); see also First English, 482 U.S. at 316 n.9

(rejecting arguments that “principles of sovereign immunity” pre-

vent recognition that the Fifth Amendment is a “remedial provi-

sion”); Lee, 106 U.S. at 221 (asserting if the government can defeat

a takings claim by invoking sovereign immunity “it sanctions a tyr-

anny which has no existence in the monarchies of Europe, nor in

any other government which has a just claim to well-regulated lib-

erty and the protection of personal rights”).

After all, sovereign immunity cannot defeat the other textu-

ally guaranteed remedy in the Constitution: the writ of habeas cor-

pus. See U.S. CONST. art. I, § 9, cl. 2; Lee, 106 U.S. at 218, 220 (com-

paring the power to issue a writ of habeas corpus to judicially en-

forcing the Takings Clause). Otherwise, the government could de-

tain an individual without ever being required to undergo judicial

review, and the writ of habeas corpus would be effectively sus-

pended in violation of the Constitution. See U.S. CONST. art. I, § 9,

cl. 2; Lee, 106 U.S. at 220.

It’s true, as the Dissent points out, see Diss. Op. at 18, that a

takings suit brought under §1983 is subject to a sovereign-immunity

defense. See Robinson v. Ga. Dep’t of Transp., 966 F.2d 637, 640 (11th

Cir. 1992). But that’s because § 1983 is a statutory cause of action.

And a statutory cause of action abrogates a state government’s im-

munity only if Congress intended it to, which Congress did not.

See Quern v. Jordan, 440 U.S. 332, 341 (1979). But the Dissent offers

no binding authority that a cause of action directly from the Consti-

tution can be restricted by sovereign immunity. If sovereign

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68 Opinion of the Court 22-12041

immunity applied to a constitutional cause of action, that constitu-

tional cause of action would offer no protection against a fickle leg-

islature.

And even if we were to agree with the Dissent that sovereign

immunity generally bars takings causes of action—as should be

clear by now, we don’t—immunity has no place here. Fulton seeks

to sue a local government. And “[u]nder the traditional Eleventh

Amendment paradigm . . . . counties and similar municipal corpo-

rations are not” entitled to sovereign immunity. United States ex rel.

Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 601 (11th Cir.

2014). So Fulton County has no sovereign immunity, and the doc-

trine poses no bar to relief in this suit.

At the end of the day, we read the words of the Takings

Clause to mean what they say. When a government takes private

property, it’s on the hook for “just compensation.” We find com-

mon ground with the Dissent by heeding the words of Chief Jus-

tice Marshall: “[W]e must never forget, that it is a constitution we

are expounding.” Diss. Op. at 19 (quoting McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316, 407 (1819)). As Marshall explained, we must

give “a fair construction of the whole instrument.” McCulloch, 17

U.S. at 406. And a “fair construction” recognizes that when the

Constitution grants an express right to damages, the American peo-

ple have a right to recover them.

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22-12041 Opinion of the Court 69

5. The Takings Clause’s cause of action stands inde-

pendent of “implied” Bivens actions.

One final note: some, including the Dissent, have suggested

that a direct cause of action under the Takings Clause would run

into the headwinds of the Supreme Court’s Bivens jurisprudence.

See, e.g., DeVillier, 63 F.4th at 420 (Higginson, J., concurring in denial

of rehearing en banc); Diss. Op. at 8–10. They note that the prac-

tice of “implying constitutional causes of action” against federal

officials, which began with Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), is “a disfavored judi-

cial activity.” DeVillier, 63 F.4th at 420 (Higginson, J., concurring in

denial of rehearing en banc) (quoting Egbert v. Boule, 596 U.S. 482,

491 (2022)). But most respectfully, we think closer scrutiny reveals

that the Court’s Bivens guidance is of no relevance to this case.

We are, of course, aware that the Supreme Court, in dicta,

has pointed out that “there is no express cause of action under the

Takings Clause . . . .” Me. Cmty. Health Options, 590 U.S. 296, 323

n.12 (2020). But the Supreme Court has been equally clear that its

“precedents do not cleanly answer the question whether a plaintiff

has a cause of action arising directly under the Takings Clause.”

DeVillier, 601 U.S. at 292.

And the Court has also recognized that plaintiffs may sue to

acquire “just compensation” from the federal government under

the Tucker Act. See Me. Cmty. Health Options, 590 U.S. at 323 n.12.

That’s so, even though the Tucker Act “does not create substantive

rights.” Id. at 322 (citation and internal quotation marks omitted).

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70 Opinion of the Court 22-12041

Instead, “[a] plaintiff relying on the Tucker Act must premise her

damages action on other sources of law . . . .” Id. (citation and in-

ternal quotation marks omitted). Those sources can be constitu-

tional obligations because the act permits the Court of Federal

Claims to hear “claim[s] against the United States founded . . . upon

the Constitution . . . .” 28 U.S.C. § 1491(a)(1). In essence, “[t]he

Tucker Act . . . is itself only a jurisdictional statute . . . .” United

States v. Testan, 424 U.S. 392, 398 (1976). So claims under the Tucker

Act proceed with the Takings Clause directly supplying the cause

of action against federal officials. The Tucker Act gives the Court

of Federal Claims the right to put on the show, but it doesn’t grant

litigants a ticket.

Yet at the very same time that the Supreme Court has

acknowledged the viability of takings claims under the Tucker Act,

it has found only three causes of actions under Bivens. See Egbert,

596 U.S. at 490–91 (describing how the Court has only recognized

Bivens actions under the Fourth Amendment for excessive force by

federal agents, under the Fifth Amendment for workplace discrim-

ination against federal employees, and under the Eighth Amend-

ment for inadequate care to federal prisoners). But it has not listed

the just-compensation cause of action as one of them.26 See id.

26 Even if we were to conceptualize a Tucker Act takings action as a Bivens

action, it’s not clear what relevance the Bivens framework has for recognizing

a constitutional cause of action against a local government. Every Bivens case

the Court has considered has been against the federal government. See Egbert,

596 U.S. at 486, 490–91 (collecting cases). The rights implicated are directly in

the Founding’s Bill of Rights, not incorporated through the Fourteenth

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22-12041 Opinion of the Court 71

We think that shows that the Takings Clause cause of action

stands independent of Bivens. So for example, it is irrelevant that

the Court has instructed that “a court may not fashion a Bivens rem-

edy if Congress already has provided, or has authorized the Exec-

utive to provide, an alternative remedial structure.” Id. at 493 (in-

ternal quotation marks and citation omitted).

The Takings Clause’s independence from Bivens makes

sense. “The cause of action for takings claims pre-dated Bivens by

over a hundred years . . . . It therefore cannot be dismissed as ‘judi-

cial genesis’ of the same sort that begat Bivens.” DeVillier, 63 F.4th

at 440 (Oldham, J., dissenting from denial of rehearing en banc); see

also O’Connor v. Eubanks, 83 F.4th 1018, 1029 (Thapar, J., concurring)

(“Perhaps our circuit should also allow suits against officials directly

under the Takings Clause. There’s some historical support for this

approach . . . . The right to just compensation shouldn’t depend on

any statute—the Constitution requires it.”). We “create” nothing

by recognizing it. See Egbert, 596 U.S. at 490 (describing Bivens as

“creat[ing] a cause of action” (internal quotation marks and cita-

tion omitted)). We instead have read text that mandates monetary

damages and reviewed a history supporting a guaranteed right to

sue. And because the Court has already recognized a direct cause

of action against federal officials inherent in the Takings Clause, its

Amendment birthed during a separate historical period. See id. These differ-

ences may alter the appropriate test to assess claims raised against local gov-

ernments. And in any case, as we’ve explained, Congress cannot narrow the

scope of the expressly guaranteed “just compensation” remedy through legis-

lation.

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72 Opinion of the Court 22-12041

own precedents suggest it must extend that protection against state

and local governments. Cf. Timbs v. Indiana, 586 U.S. 146, 154 (2019)

(“[W]hen a Bill of Rights protection is incorporated, the protection

applies identically to both the Federal Government and the States.”

(internal quotation marks and citation omitted)).

We further recognize the limited practical effect of our de-

cision today. Litigants are still likely to proceed under § 1983 where

it is available because it authorizes consequential damages and at-

torney’s fees. See City of Monterey, 526 U.S. at 749 n.10 (Souter, J.,

concurring in part & dissenting in part) (“Respondents in this [§

1983] case sought damages for the fair market value of the prop-

erty, interim damages for a temporary taking, holding costs, inter-

est, attorney’s fees, costs, and other consequential damages.”); 42

U.S.C. § 1988(b) (authorizing the award of attorney’s fees in § 1983

suits). Only plaintiffs who don’t already have a recognized cause of

action are likely to sue directly under the Takings Clause without

access to these additional damages.

Still, the Founders included the “just compensation” remedy

as one of only two remedies the Constitution expressly identifies.

And they meant for those remedies to be meaningful and accessi-

ble—regardless of legislative action or inaction. So today we pay

heed to the text, structure, and history of the Fifth and Fourteenth

Amendments and of the Constitution more broadly and recognize

a direct cause of action under the Takings Clause.

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22-12041 Opinion of the Court 73

IV. CONCLUSION

Fulton is not trying to receive relief from a past injury. He

alleges that Fulton County, to this day, is violating his constitutional

rights. That’s because, under his allegations, the County took his

property and ever since has had an active obligation under the Fifth

Amendment to pay him “just compensation.” We don’t think the

Constitution’s promise of “just compensation” is an empty prom-

ise. It doesn’t taunt the American public like the Greek gods did

Tantalus. So Fulton can bring an action directly under the Takings

Clause. And because he may do so, amendment of his complaint

is not futile. For these reasons, we vacate the district court’s order

and remand for further proceedings consistent with this opinion.

VACATED and REMANDED.

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22-12041 WILLIAM PRYOR, C.J., dissenting 1

WILLIAM PRYOR, Chief Judge, dissenting:

In the more than 230 years since the Bill of Rights was rati-

fied, neither the Supreme Court nor this Court nor our predecessor

circuit has ever held that the Takings Clause of the Fifth Amend-

ment creates an implied right of action for damages against a gov-

ernment—federal, state, or local—and for good reason. The text

and history of the Clause, the structure of the Constitution, and

Supreme Court precedent make clear that we should not imply a

right of action. But the majority ignores that history, usurps the

role of Congress, and invents a right of action directly under the

Constitution against a county even though property owners today

have more ways to vindicate their constitutional right to just com-

pensation than ever before. These ample alternatives undermine

any need to imply a constitutional right of action, yet the majority

“overhaul[s] constitutional doctrine” by ignoring them. Ann Wool-

handler, Julia D. Mahoney & Michael G. Collins, Takings and Implied

Causes of Action, 2023–2024 CATO SUP. CT. REV. 249, 250 (2024). I

would instead follow the Supreme Court’s lead in Knick v. Township

of Scott, 139 S. Ct. 2162 (2019), and DeVillier v. Texas, 144 S. Ct. 938

(2024), and hold that the statutory action for federal civil-rights vi-

olations, 42 U.S.C. § 1983, and state law provide adequate remedies

for takings by local governments. Because Fulton failed to pursue

his many federal and state remedies against proper parties in a

timely manner and because we have no business creating a consti-

tutional remedy for him, I respectfully dissent.

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2 WILLIAM PRYOR, C.J., dissenting 22-12041

I. BACKGROUND

Although the majority describes the basic facts of this appeal

well enough, it fails to explain the many paths Brandon Fulton did

not take to vindicate his takings claim. Instead, it assumes that be-

cause “Fulton seeks a plan B” to vindicate his constitutional right

to just compensation, we must create one for him. Majority Op. at

3. But, as the history of this litigation and the litany of remedies

available establish, the many alternative paths that Fulton could

have taken obviate any need to create a new remedy for him.

Fulton County Animal Services officers arrested Fulton for

felony cruelty to animals and seized seven of his horses on April 22,

2017. On April 5, 2018, Georgia dismissed the felony charges

against Fulton, but County officers did not return his horses or

their equivalent value. Fulton then waited over two years to bring

claims under section 1983 against the Fulton County Board of

Commissioners; Paul L. Howard, Jr., the former District Attorney

for Fulton County; and Rebecca Guinn, the CEO of Lifeline Ani-

mal Project, Inc., the “managing organization” of Fulton County

Animal Services. 42 U.S.C. § 1983. Fulton then voluntarily dis-

missed his claim against Guinn under Federal Rule of Civil Proce-

dure 41(a)(1)(A)(ii). That voluntary dismissal was Fulton’s first

waiver of a potential remedy. The district court also dismissed the

claim against Howard.

The Board also moved to dismiss Fulton’s complaint on the

grounds that it was untimely, that the Board was not an entity ca-

pable of being sued, and that Fulton had failed to allege municipal

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22-12041 WILLIAM PRYOR, C.J., dissenting 3

liability. Fulton responded by moving to amend his complaint by

swapping the Board for Fulton County. He also sought leave to add

an alternative claim against the County for an uncompensated tak-

ing based on the Fifth Amendment. The district court granted the

Board’s motion to dismiss and denied Fulton’s motion to amend as

futile. The district court reasoned that both a claim against the

County under section 1983 and a direct claim under the Takings

Clause would fail because Fulton pleaded no “official policy or

practice,” see Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S.

658, 690–91 (1978), so neither amendment would save Fulton’s

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