Devillier v. State of Texas

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

___________ FILED

March 23, 2023

No. 21-40750 Lyle W. Cayce

___________ Clerk

Richard Devillier; Wendy Devillier; Steven Devillier;

Rhonda Devillier; Barbara Devillier; Et al.,

Plaintiffs—Appellees,

versus

State of Texas,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-223

USDC No. 3:20-CV-379

USDC No. 3:21-CV-104

USDC No. 4:21-CV-1521

______________________________

ON A POLL ON THE COURT’S OWN MOTION

Before Higginbotham, Southwick, and Higginson, Circuit Judges.

Per Curiam:

At the request of one of its members, the court was polled, and a

majority did not vote in favor of rehearing (Fed. R. App. P. 35 and 5th

Cir. R. 35).

In the en banc poll, five judges voted in favor of rehearing (Smith,

No. 21-40750

Elrod, Engelhardt, Oldham, and Wilson), and eleven voted against rehearing

(Richman, Jones, Stewart, Southwick, Haynes, Graves, Higginson, Willett,

Ho, Duncan, and Douglas).

2

No. 21-40750

Patrick E. Higginbotham, Circuit Judge, concurring in denial of

rehearing en banc:

Property Owners filed suits in Texas state courts claiming that the

flooding of their land by the State of Texas constituted a taking under the

Takings Clause. The State removed the cases to federal court asserting

federal question jurisdiction. The State moved to dismiss the takings claims,

arguing that the Fifth Amendment does not create an implied cause of action,

the State is immune from monetary liability, and some claims were barred by

the limitations period. The district court denied the motion, finding that the

Plaintiffs-Property Owners could advance their claims directly under the

Takings Clause. The panel disagreed. The Fifth Amendment Takings Clause

does not provide a right of action in federal court for takings claims against a

state. 1 The pathway for enforcement in takings by the state is rather through

the state courts to the Supreme Court. On that passage, the Supreme Court

of Texas applies both federal and state law. 2 Its decisions on state law control,

1

See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“[A] federal court’s authority to

recognize a damages remedy must rest at bottom on a statute enacted by Congress.”); Azul–Pacifico,

Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding that a takings plaintiff has “no

cause of action directly under the United States Constitution”), cert. denied, 506 U.S. 1081 (1993).

2

The Supreme Court of Texas recognizes takings claims under the federal and state

constitutions, with differing remedies and constraints turning on the character and nature of the

taking. See Gutersloh v. Texas, No. 93-8729, 25 F.3d 1044, 994 WL 261047, *1 (5th Cir. 1994)

(unpublished) (per curiam) (“[T]he courts of the State of Texas are open to inverse condemnation

damage claims against state agencies on the basis of the Fifth Amendment, as applied to the states

through the Fourteenth Amendment, as well as on the basis of the Texas Constitution and laws.”);

City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022) (“Under our [federal and state]

constitutions, waiver occurs when the government refuses to acknowledge its intentional taking of

private property for public use. A suit based on this waiver is known as an ‘inverse condemnation’

claim.”); Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 176 S.W.3d 680, 683–84 (Tex. App.—Dallas

2005, pet. denied) (noting that Texas courts apply a two-year limitations period to takings claims for

“damaged” property and a ten-year limitations period to takings claims for “taken” property).

3

No. 21-40750

and Texas state law provides the procedures for fulfilling the State’s

obligations under the Takings Clause for takings by the state. 3

In short, the en banc court did not err in rejecting the contention that

“self-executing,” as used in Knick, creates federal jurisdiction and need not

find a jurisdictional grant such as 42 U.S.C. § 1983. Nor did the en banc court

err in leaving undisturbed the panel’s remand to the district judge for further

proceedings, which should be understood to include a return to the state

courts for their upward trek. 4

I.

Takings by the state have been addressed and overseen by state courts

throughout our history, with review by state supreme courts and then review

by the Supreme Court. It signifies that it is that genre of cases—and not

takings by municipalities—that is at issue. As I will explain, this flow of cases

is no accident.

The en banc court rejected the contention that the “self-executing”

character of the Takings Clause grants direct access to federal courts, and for

good reason. It is plain that “self-executing” speaks only to the completeness

of the claim itself, the point at which a takings claim is ready for a court. Chief

Justice Roberts explains:

Because of “the self-executing character” of the Takings

Clause “with respect to compensation,” a property owner has

3

See Knick v. Township of Scott, 139 S. Ct. 2162, 2170 (2019) (“The Fifth Amendment right

to full compensation arises at the time of the taking . . . .”).

4

The Property Owners may yet raise their Takings Clause argument to the Supreme Court,

and we granted their motion to stay the mandate to facilitate certiorari.

4

No. 21-40750

a constitutional claim for just compensation at the time of the

taking. 5

The completeness of the claim is the sole usage of the term. Its

purpose was to retreat from the earlier Williamson County doctrine. 6 The

Court then explains that the claim can be immediately pursued in the federal

courts by 42 U.S.C. § 1983, 7 which by its terms does not reach actions against

the state—as distinguished from local governments and municipalities. The

Supreme Court was explicit: because takings claims against municipalities

can be brought under this provision, it “ha[d] no occasion to consider [the

Solicitor General’s] “novel [] argument” that state takings claims can be

brought directly in federal court pursuant to 28 U.S.C. § 1331. 8 In other

words, lifting a term of art from its context—the retreat from Williamson

County—effectively denies its true meaning.

That § 1983 by its terms does not reach state conduct does not mean

that Knick left takings by the state without a pathway. To the contrary, Knick

did not abandon federal review of state takings; it left undisturbed the sole

pathway through the state courts with review by the state supreme court and

the United States Supreme Court, a process hundreds of years old. Leaving

the pathway of state takings to the state courts is a direct response to the

unique makeup of takings under the Fifth Amendment: an amalgam of state

and federal law. This effectively allows the United States Supreme Court to

address state takings when issues of property law are settled by the state

5

Id. at 2171 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 315 (1987)).

6

Id. at 2179.

7

Id. at 2177 (“We conclude that a government violates the Takings Clause when it takes

property without compensation, and that a property owner may bring a Fifth Amendment claim

under § 1983 at that time.”).

8

Id. at 2174 n.5.

5

No. 21-40750

supreme court, this because the state supreme court is final on matters of

state law.

In turn, this passageway for state takings informs the lower federal

courts with takings cases from municipalities and local government entities

of the controlling state law defining property rights. Again, this is neither

accident nor is it an exhaustion requirement. It is the familiar service of

federalism expressed in the choice of routes for review of state actions in their

upward path to the Supreme Court.

Casting aside both the utility and the service to federalism of the

pathway to the Supreme Court through state courts by granting immediate

access into the lower federal courts of state takings would reflect a distrust of

the state courts to apply federal law as they are obligated to do. 9 State judges

take the same oath to faithfully apply the law as do federal judges, and with

all deference to our federal brethren, leaving in place passages to state

supreme courts for state takings claims brings the well-equipped eyes of those

dealing with state property interests on a daily basis, as they have done all

these many years. In sum, the contentions we reject would work a profound

upset of state-federal relations. This strained effort to drain state courts of

state takings claims as reflected in the procedural gymnastics of this case

come with no rational justification. Whatever its fuel, it is without legal

foundation.

At present, and for the past 100 years, all but one of the states have

met their obligations under the Fifth Amendment to provide procedural

9

See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962) (“We start with the

premise that nothing in the concept of our federal system prevents state courts from enforcing rights

created by federal law.”); Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (“Under [our] system of dual

sovereignty, we have consistently held that state courts have inherent authority, and are thus

presumptively competent, to adjudicate claims arising under the laws of the United States.”);

Claflin v. Houseman, 93 U.S. 130, 136 (1876).

6

No. 21-40750

pathways for the termination of condemnation cases. 10 As Justice Black

reminded us in Testa v. Katt, federal law is state law. 11 It is not foreign law. 12

The state courts are thus obligated to follow federal law perforce

constitutional law. Here, the Takings Clause, by its own language, charges

the states to provide just compensation for takings. 13 Texas did that,

providing a pathway through state courts of takings claims both in its

constitution and legislation for more than a century.

From the beginning the Fifth Amendment charged the states to

provide compensation for its takings to protect the peoples’ property. State

courts were the enforcers of all claims against the state for all state takings in

all but one state. When § 1983 arrived, offered by an act of Congress under

the Fourteenth Amendment, it did not provide a right of actions against

states. This left in place the pathway to the Supreme Court of takings by the

states as distinguished from the pathways of cities and municipalities, a

familiar review regime and an extraordinarily large structure nationwide that

has operated for over a century. Yet despite any need, our dissenting

colleagues seek to gratuitously puncture it. The en banc court refused to do

so, and the peoples’ property remains fully protected from takings by the

government.

If the present effort of this suit is an expression of distrust of state

courts, it comes with a large price, both to this Court and to this structure. In

10

And even in Ohio, mandamus provides a remedy. See Knick, 139 S. Ct. at 2169.

11

See generally 330 U.S. 386 (1947); see also Claflin, 93 U.S. at 136 (“The laws of the United

States are laws in the several States, and just as much binding on the citizens and courts thereof as

the State laws are.”).

12

See Claflin, 93 U.S. at 136 (noting that “[t]he United States is not a foreign sovereignty

as regards the several States”).

13

U.S. CONST. amend. V (“Nor shall private property be taken for public use, without just

compensation.”).

7

No. 21-40750

short, no case has been made for rerouting state takings to the lower federal

courts, bypassing the superintendence of the state supreme courts who share

their responsibility for the last word on state law with the United States

Supreme Court’s final word on their federal component. So, our question is,

what is the need? There simply is no rational reason to disturb the procedural

paths of this genre of cases. It is in place and working effectively, as it has

throughout our history. To do so would upset the structures of all but one of

the states in the union, a pristine exemplar of federalism—not just a political

slogan, but the heart of our splitting of the atom of sovereignty.

We have a Congress. It wrote § 1983. It can accomplish what is

proposed, but it is telling that it has not. This move is above our paygrade.

8

No. 21-40750

Stephen A. Higginson, Circuit Judge, concurring in denial of rehearing

en banc:

This case is about whether there is an implied cause of action in the

Fifth and Fourteenth Amendments for claims that “due process of law . . .

requires compensation to be made . . . to the owner of private property taken

for public use under the authority of a state.” Chi., B. & Q.R. Co. v. City of

Chi., 166 U.S. 226, 235 (1897). Because implying constitutional causes of

action is “a disfavored judicial activity,” Egbert v. Boule, 142 S. Ct. 1793, 1803

(2022) (citation omitted), and because implying such a cause of action here

would infringe separation-of-powers principles, I concur in denial of

rehearing en banc.

Three terms ago, in Maine Community Health Options v. United States,

every Justice agreed that “the Constitution did not expressly create a right of

action when it mandated just compensation for Government takings of

private property for public use.” 140 S. Ct. 1308, 1328 n.12 (2020) (cleaned

up); see id. at 1334 & n.3 (Alito, J., dissenting). It follows that any cause of

action in the Takings Clause to sue the federal government for just

compensation, if it exists, is implied.

Eight of the Justices who decided Maine Community Health Options

appear to have assumed that the Takings Clause creates an implied cause of

action to sue the United States. Those Justices pointed out that property

owners can bring takings claims against the United States “through the

Tucker Act,” which “waive[s] immunity for certain damages suits in the

Court of Federal Claims” but “does not create substantive rights.” Me.

Cmty. Health Options, 140 S. Ct. at 1327, 1328 n.12 (cleaned up); see 28 U.S.C.

§ 1491. Thus, a plaintiff relying on the Tucker Act’s immunity waiver must

identify a claim “in some other source of law, such as the Constitution.”

United States v. Mitchell, 463 U.S. 206, 216 (1983) (cleaned up). To establish

9

No. 21-40750

such a claim, the plaintiff “must demonstrate that the source of substantive

law . . . can be fairly interpreted as mandating compensation by the Federal

Government for the damages sustained,” id. at 216-17 (cleaned up), either

“expressly or by implication,” id. at 217 n.16 (citation omitted). Applying

those principles, Maine Community Health Options suggested that the

Takings Clause impliedly creates a cognizable claim under the Tucker Act

because the Takings Clause imposes “a mandatory . . . obligation to pay” on

the United States. 140 S. Ct. at 1328 n.12; see United States v. Causby, 328

U.S. 267 (1946) (holding that “[i]f there is a taking, the claim is ‘founded

upon the Constitution’ and within the jurisdiction of the Court of Claims to

hear and determine”).

So, if the Fifth Amendment had applied directly to the states at the

Founding, this might be a straightforward case. But the Takings Clause is

incorporated against the states through the Due Process Clause of the

Fourteenth Amendment. See Chi., B. & Q.R. Co., 166 U.S. at 235. The

question before us, then, is whether the Due Process Clause of the

Fourteenth Amendment “made applicable to the States” an implied cause

of action against the federal government, along with the rest of the Takings

Clause. Dolan v. City of Tigard, 512 U.S. 374, 383 (1994).

One answer to the incorporation dilemma is the proposition that an

implied cause of action, if it exists, would be part of the property owner’s

“irrevocable right to just compensation . . . upon a taking.” Knick v. Township

of Scott, 139 S. Ct. 2162, 2172 (2019). Accordingly, when the substantive right

guaranteed by the Takings Clause was incorporated against the states, so was

a corresponding implied cause of action against the states, or so the argument

goes. This line of reasoning appears to follow the “well-established rule that

incorporated Bill of Rights protections apply identically to the States and the

Federal Government.” McDonald v. City of Chi., 561 U.S. 742, 766 n.14

(2010).

10

No. 21-40750

However, that theory assumes that an implied cause of action against

the federal government for takings claims is intrinsic to the property owner’s

right to just compensation as opposed to a distinct right that would require

separate incorporation against the states. See Ramos v. Louisiana, 140 S. Ct.

1390, 1405 n.63 (2020) (“The scope of an incorporated right and whether a

right is incorporated at all are two different questions.”). Since a cause of

action against the federal government is not express in the Fifth Amendment,

see Me. Cmty. Health Options, 140 S. Ct. at 1328 n.12, if such a cause of action

exists, it must be “judicially created,” Egbert, 142 S. Ct. at 1802. 1 And it is

not obvious why a cause of action fashioned by judges—not the

Constitution—would be coextensive with a substantive constitutional right

such that incorporation of one would incorporate the other. Nor is it obvious

that a judicially created cause of action is always or ever a constitutional right

that can be incorporated through the Fourteenth Amendment. 2

There is at least one other reason to think that a judicially created

cause of action to enforce the Takings Clause, separate and distinct from the

right to just compensation, was not automatically incorporated against the

states along with the substantive right. The Takings Clause is “enforced

against the States under the Fourteenth Amendment according to the same

1

It may be that an implied cause of action against the federal government in the Takings

Clause is not “implied” as that term has been used in the Supreme Court’s post-Bivens decisions.

See, e.g., Egbert, 142 S. Ct. at 1802. After all, unlike other provisions in the Bill of Rights, the Takings

Clause refers to “compensation,” and the Supreme Court has explained that under the Takings

Clause, “the compensation remedy is required by the Constitution,” First English Evangelical Luther

Church of Glendale v. L.A. Cnty., 482 U.S. 304, 316 (1987). But I take the Maine Community Health

Options dictum at its word—the reference to compensation in the Takings Clause does not create

an express constitutional cause of action—and so some kind of judicial genesis seems necessary to

bring the remedy into being.

2

Otherwise, why not say that the causes of action implied in Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and Carlson v. Green, 446 U.S. 14 (1980),

were incorporated along with the Fourth and Eighth Amendments?

11

No. 21-40750

standards that protect . . . against federal encroachment.” Malloy v. Hogan,

378 U.S. 1, 10 (1964) (emphasis added); see McDonald v. City of Chi., 561 U.S.

742, 765 (2010). Accordingly, while a property owner has the same

“irrevocable right to just compensation immediately upon a taking” by a

state as by the federal government, Knick, 139 S. Ct. at 2172, the enforcement

of that right against a state is contingent on the Due Process Clause. For a

takings claim against a state to be “under the Fourteenth Amendment” in

more than name only, Malloy, 378 U.S. at 10, the relevant cause of action

would presumably need to be implied in the Due Process Clause as well. 3

The upshot of this analysis is that an implied cause of action for

takings claims against states has not been incorporated by the Due Process

Clause of the Fourteenth Amendment and therefore would need to be

independently implied from the constitutional text. “When a party seeks to

assert an implied cause of action under the Constitution itself . . . [t]he

question is ‘who should decide’ whether to provide for a damages remedy,

Congress or the courts?” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citation

omitted). We will not recognize an implied constitutional cause of action if

3

In Mapp v. Ohio, the Court noted that the federal exclusionary rule was “judicially

implied” but applied it to the states because the Court understood it as “of constitutional origin,”

“an essential part of the right of privacy,” and “an essential part of . . . [the] Fourteenth

Amendment[].” 367 U.S. 643, 648, 657 (1961). Later, the Court recognized that the rule “is a

judicially created remedy designed to safeguard Fourth Amendment rights generally through its

deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v.

Calandra, 414 U.S. 338, 348 (1974); see Davis v. United States, 564 U.S. 229, 237-38 (2011). It is not

entirely clear whether, under modern incorporation doctrine and this modern understanding of the

exclusionary rule, Mapp would have been decided differently. Cf. McDonald, 561 U.S. at 785

(“Although the exclusionary rule is not an individual right but a judicially created rule, this Court

made the rule applicable to the States” (cleaned up)). In any event, Mapp did pass on whether the

implied “sanction of exclusion” was an essential part of the Due Process Clause of the Fourteenth

Amendment. Mapp, 367 U.S. at 655. To perform the same analysis with respect to an implied cause

of action against the states may trigger the separation-of-powers inquiry that the Court has said

controls the implication of constitutional causes of action. See Ziglar v. Abbasi, 582 U.S. 120, 135

(2017).

12

No. 21-40750

“there is any reason to think that Congress might be better equipped to create

a damages remedy.” Egbert, 142 S. Ct. at 1803.

There are four warning signs that this court would “arrogate

legislative power” by implying a cause of action against the states in the

Takings Clause of the Fifth Amendment as incorporated by the Due Process

Clause of the Fourteenth Amendment. Egbert, 142 S. Ct. at 1803 (cleaned

up). An alternative remedial structure already exists in state inverse-

condemnation law. See Ziglar, 137 S. Ct. at 1858 (citing Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 73-74 (2001) (state tort law)); Minneci v. Pollard, 565

U.S. 118, 129 (2012) (state tort law). In 42 U.S.C. § 1983, Congress decided

to provide a damages remedy for takings claims against municipalities and

certain local government units, see Monell v. Dep’t of Soc. Servs. of N.Y., 436

U.S. 658, 691 & n.54 (1978), but not states, Will v. Mich. Dep’t of State Police,

491 U.S. 58, 66 (1989). Implying a judicial remedy against states implicates

federalism, and the elected legislative branch is better equipped to balance

federal and state interests in this area than our court. And we “cannot

predict the systemwide consequences of recognizing a cause of action” under

the Fifth and Fourteenth Amendments for takings claims against states.

Egbert, 142 S. Ct. at 1803 (cleaned up).

The dissent does not grapple with the incorporation dilemma or

justify implying a cause of action in the Fifth and Fourteenth Amendments.

See Me. Cmty. Health Options, 140 S. Ct. at 1328 n.12 (2020) (“[T]he

Constitution did not expressly create a right of action when it mandated just

compensation for Government takings of private property for public use.”).

Instead of offering a theory of incorporation or implication, the dissent

contends that federal courts have long entertained takings claims against

states, invokes cases where “[t]he Court affirmed the self-executing nature

of the Fifth Amendment,” and identifies First English Evangelical Lutheran

Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), as a case where

13

No. 21-40750

the Supreme Court held that a statutory cause of action is not required to

recover just compensation under the Takings Clause. But the dissent’s

authorities fall short of supporting its argument.

First, the dissent invokes pre-incorporation cases where federal courts

considered takings claims against states. However, as the dissent notes,

Congress had provided a jurisdictional basis for federal courts to hear state-

law takings causes of action pre-incorporation. So those cases don’t

illuminate whether the Due Process Clause of the Fourteenth Amendment

incorporated an implied cause of action for takings claims against states or

whether the cause of action should be implied now.

Second, the dissent relies on post-incorporation cases adjudicating

takings claims against municipalities, not states. See Vill. of Norwood v. Baker,

172 U.S. 269 (1898); Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462

(1916); Del., L. & W.R. Co. v. Town of Morristown, 276 U.S. 182 (1928); Vill.

of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 4 These claims today could

be brought under § 1983, and at most, these cases support an inference that

a cause of action exists against local governments. Regardless, these cases

may have simply “assumed without . . . deciding” “[t]he question whether a

cause of action exists,” because absence of a cause of action is not a

jurisdictional issue. Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979).

Even if these older cases did assume without deciding that an implied

cause of action existed, that’s unsurprising because the Supreme Court’s

more recent decisions have cast aside the method of finding causes of action

4

One exception is Dohany v. Rogers, which was an early twentieth-century suit “to enjoin

the state highway commissioner and others from acquiring a right of way . . . and from prosecuting

a proceeding in the state courts for the acquisition of the right of way . . . on the ground that the state

statutes under which the proceeding was had infringed the State Constitution and the Fourteenth

Amendment.” 281 U.S. 362, 363 (1930). Dohany did not adjudicate a takings claim for

compensation against a state.

14

No. 21-40750

in the Constitution where Congress is silent and an alternative remedial

framework exists. See Egbert, 142 S. Ct. at 1803; Ziglar, 137 S. Ct. at 1854.

And a procedural vehicle exists in every state’s law to enforce takings claims. 5

See Knick, 139 S. Ct at 2168 & n.1.

Next, the dissent says that the Supreme Court has “affirmed the self-

executing nature of the Fifth Amendment again and again throughout the

twentieth century.” But the dissent does not and cannot maintain that these

cases implied a cause of action against the states in the Fifth and Fourteenth

Amendments. With two exceptions, the cases that the dissent cites did not

involve claims against states or present the question of whether an implied

federal constitutional cause of action exists against states. See Kirby Forest

Indus., Inc. v. United States, 467 U.S. 1 (1984); United States v. Clarke, 445

U.S. 253 (1980); United States v. Dickinson, 331 U.S. 745 (1947); United States

v. Causby, 328 U.S. 256 (1946); Jacobs v. United States, 290 U.S. 13 (1933).

And neither of the cases that did arguably raise the issue— First English

Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304

(1987), and Knick v. Township of Scott, 139 S. Ct. 2162 (2019)—resolved it.

5

Relying on a proposed amicus brief submitted in this case, the dissent argues that

Louisiana “does not afford its citizens a state-law takings remedy.” To support this assertion, the

amicus, in turn, seems to rely on our recent decision in Ariyan, Inc. v. Sewerage & Water Board of

New Orleans, 29 F.4th 226 (5th Cir. 2022), cert. denied, 143 S. Ct. 353 (2022). There, the plaintiffs

had won final judgments for violations of Louisiana law against the Board in state court, but the

Board failed to satisfy those judgments. See id. at 228-29, 231-32. So the plaintiffs filed a § 1983 suit

alleging that the Board’s failure to timely pay just compensation once the compensation had been

awarded violated the Takings Clause. See id. at 229. We held that plaintiffs had failed to state a

claim for a violation of the Takings Clause because “there is no property right to timely payment on

a judgment” awarded for a state-law claim. Id. at 228. But Ariyan isn’t the end of the story for

plaintiffs bringing takings claims against Louisiana state governmental entities. Ariyan did not

decide that a state’s refusal to pay just compensation for a federal takings claims would be

constitutional under the Fifth Amendment requirement of a just compensation remedy, see First

English, 482 U.S. at 316. Nor did Ariyan hold that it would be constitutional for a state to refuse to

pay a judgment for a state-law takings claim where the plaintiff had no procedural vehicle to bring a

federal takings claim. Those issues remain live after Ariyan.

15

No. 21-40750

In First English, the petitioner had sued in state court alleging that a

County ordinance denied it “all use of” its property. Id. at 308. The

complaint “invoked only the California Constitution,” id. at 313 n.8, and

sought damages for the lost use of the property, id. at 308. But under a

California Supreme Court decision, Agins v. Tiburon, 598 P.2d 25 (Cal. 1979),

“compensation [was] not required until the challenged regulation or

ordinance has been held excessive in an action for declaratory relief or a writ

of mandamus and the government has nevertheless decided to continue the

regulation in effect,” First English, 482 U.S. at 308-09. Relying on Agins, the

state trial court struck First English’s allegation that the ordinance denied it

all use of its property. Id. at 309. In affirming the trial court, the state

intermediate court of appeals followed Agins “because the United States

Supreme Court ha[d] not yet ruled on the question of whether a state may

constitutionally limit the remedy for a taking to nonmonetary relief.” Id.

(citation omitted). The California Supreme Court denied review. Id. The

Supreme Court reversed, “merely hold[ing] that where the government's

activities have already worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to provide compensation

for the period during which the taking was effective.” Id. at 321.

Before reaching the merits, the Court addressed several challenges to

the Court’s jurisdiction that the County raised, including that First English

“failed to preserve for review any claim under federal law.” Id. at 313 n.8.

After all, First English’s complaint didn’t raise any federal claims. Id. But

First English had argued in the state appellate court that the Agins rule was

unconstitutional, and the state appellate court applied Agins to dismiss the

action nonetheless. Id. Because the state appellate court “rejected on the

merits the claim that the [Agins] rule violated the United States

Constitution,” the state court “considered and decided the constitutional

claim” that the ordinance violated the federal Takings Clause by failing to

16

No. 21-40750

provide just compensation. Id. On this basis, the Court found that it had

appellate and certiorari jurisdiction. Id.

The United States filed an amicus brief in support of the County. The

United States acknowledged that “a temporary taking of property is clearly

within the constitutional proscription that private property shall not be taken

for public use without just compensation.” Brief for the United States as

Amicus Curiae Supporting Appellee, First English, 482 U.S. 304 (No. 85-

1199), 1986 WL 727420, at *11. But the United States argued that neither the

Fifth Amendment nor Fourteenth Amendment, “of its own force,

furnish[es] a basis for a court to award money damages against the

government.” Id. at *14. In defending this contention, the United States

claimed that “the Takings Clause is strictly prohibitory and does not, without

further legislative action, mandate a monetary award against the

government,” and made a similar argument with respect to the Fourteenth

Amendment. Id. at *14, *26-*30. The United States also noted that § 1983

provides a statutory remedy upon which First English had not relied in state

court or the Supreme Court. See id. at *30-*32. Collectively, these

arguments attacked the core of First English’s position—that the Fifth

Amendment requires compensation as a remedy for “temporary” regulatory

takings. First English, 482 U.S. at 310.

Even assuming that the United States “squarely presented” the

Supreme Court “with the question . . . whether [§ 1983] is an indispensable

prerequisite for recovering just compensation,” as the dissent asserts, the

Court treated the United States’ arguments as a challenge to First English’s

merits theory. See First English, 482 U.S. at 316 n.9 (merits section of

opinion). And all the Court said in response was that the United States was

wrong that “the Fifth Amendment, combined with principles of sovereign

immunity, establishes that the Amendment itself is only a limitation on the

power of the Government to act, not a remedial provision,” and that “the

17

No. 21-40750

Constitution does not, of its own force, furnish a basis for a court to award

money damages against the government.” Id. (citations omitted). Rather,

“the Constitution . . . dictates the remedy for interference with property

rights amounting to a taking.” Id. This is essentially what the Court

eventually held as to the ultimate issue in the case: “invalidation of the

ordinance without payment of fair value for the use of the property . . . would

be a constitutionally insufficient remedy.” Id. at 322. So the Court did not

silently hold that there is an implied cause of action against the states in the

Fifth and Fourteenth Amendments. It certainly did not do so by directing

future readers to seek out the United States’ amicus brief as a guide to

interpreting the holding of the case.

Knick doesn’t resolve the issue, either. There, the Court held that a

“property owner has suffered a violation of his Fifth Amendment rights

when the government takes his property without just compensation, and

therefore may bring his claim in federal court under § 1983 at that time.” 139

S. Ct. at 2168 (emphasis added). It is difficult to understand why the Court

would have emphasized that § 1983 provides the mechanism to bring takings

claims if § 1983 is not a necessary ingredient for the suit. Therefore, Knick

only shows that the dissent’s approach would undermine the scheme

Congress has set forth to enforce the Takings Clause.

In short, we have long outgrown the “ancien regime that freely implied

rights of action.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (cleaned

up); Cantú v. Moody, 933 F.3d 414, 421 (5th Cir. 2019) (similar). This case, I

ultimately conclude, is no exception. Accordingly, I concur in the denial of

rehearing en banc.

18

No. 21-40750

Andrew S. Oldham, Circuit Judge, joined by Smith, Elrod,

Engelhardt, and Wilson, Circuit Judges, dissenting from the denial of

rehearing en banc:

The panel decision renders federal takings claims non-cognizable in

state or federal court. This breaks with centuries of precedent. And the panel

did it in a one-paragraph decision with one sentence of analysis. The panel’s

sources for this remarkable holding? A Bivens case and a 1992 Ninth Circuit

decision. No matter what one thinks about the merits of this question, it

plainly requires more explanation than that.

In two concurring opinions respecting the denial of en banc rehearing,

two members of the panel purport to provide the reasoning that the published

panel opinion did not. And both of my esteemed colleagues say this appeal is

much ado about nothing because plaintiffs are free to litigate their federal

takings claims in state court.

Wrong. Plaintiffs already tried that, but the State removed the cases.

And rather than ordering the case remanded to state court, the panel held

that plaintiffs’ claims “arise under” federal law for removal purposes but

“arise under” state law for merits purposes. Based on that deeply wrong

misstep, the panel then adjudicated plaintiffs’ federal takings claims on the

merits. Finis. Res judicata. The case is now over, barring Supreme Court

intervention. And not just for these plaintiffs. The panel decision is an

insuperable obstacle to any plaintiff asserting any federal takings claim

against any State in federal or state court. If this case is not enbancworthy,

then it’s unclear how any case ever will be.

I.

The plaintiffs are 72 individuals, one corporation, and four limited

liability companies who own property on the north side of Interstate Highway

10 (“IH-10”) in Chambers County, Texas. Plaintiffs originally filed four

19

No. 21-40750

separate actions in Texas state court. They alleged that their properties were

“inundated, destroyed, and/or damaged as a result of the affirmative actions

of the State [of Texas] in designing, constructing, operating, and/or

maintaining IH-10.” ROA.1176. Specifically, plaintiffs alleged that the State

constructed an impenetrable concrete barrier along the interstate for

purposes of storing stormwater on plaintiffs’ private property without their

consent or compensation in violation of both the Texas and U.S.

Constitutions. The concrete barrier looks like this:

Plaintiffs alleged that the concrete barrier created a dam that barricaded

rainfall from flowing into the Gulf of Mexico and instead flooded plaintiffs’

properties:

20

No. 21-40750

Plaintiffs alleged the State thus took their property without just

compensation. See, e.g., Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13

Wall.) 166 (1871) (creation of a dam that flooded plaintiff’s property

constituted compensable taking); United States v. Dickinson, 331 U.S. 745

21

No. 21-40750

(1947) (same); Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (2012)

(even temporary floods caused by government can constitute compensable

takings).

The State of Texas removed all four actions to federal court under 28

U.S.C. § 1441. The United States District Court for the Southern District of

Texas consolidated the four cases. Plaintiffs then filed a “First Amended

Master Complaint,” which is the live pleading in this case. Plaintiffs raised

four claims: (1) an unconstitutional taking without just compensation under

Article I, § 17 of the Texas Constitution; (2) an unconstitutional taking

without just compensation under the Fifth Amendment’s Takings Clause, as

incorporated against the States by the Fourteenth Amendment;

(3) deprivation of a property without procedural due process under the

Fourteenth Amendment; and (4) deprivation of a property without

substantive due process under the Fourteenth Amendment. Plaintiffs sought

damages, as well as declaratory and injunctive relief.

The State then moved to dismiss (1) the state-law takings claim and

(2) the federal takings claim. Regarding the federal claim, the State argued

that “42 U.S.C. § 1983 is the only vehicle by which a constitutional violation

can be alleged.” ROA.1204–05. Because the State is not a “person”

amenable to suit under § 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989), the State argued that it can never be amenable to a federal taking

claim in federal court. ROA.1205–06. The State also argued that it enjoys

sovereign immunity against federal takings claims—even after the State

chose to remove the case to federal court.

The magistrate judge recommended denying the State’s motion in a

powerful and incisive opinion. The magistrate judge (correctly) noted: “This

thinking [by the State] eviscerates hundreds of years of Constitutional law in

one fell swoop, and flies in the face of commonsense. It is pretzel logic.”

22

No. 21-40750

ROA.1279. The district court agreed with the magistrate judge and adopted

the report and recommendation. Then the district court certified its order for

interlocutory review under 28 U.S.C. § 1292(b).

We accepted the certification and vacated the district court’s order.

The panel decision is one paragraph long. In one sentence, the panel

dispensed with plaintiffs’ federal claim: “Because we hold that the Fifth

Amendment Takings Clause as applied to the [S]tates through the

Fourteenth Amendment does not provide a right of action for takings claims

against a [S]tate, we VACATE the district court’s decision for want of

jurisdiction and REMAND with instructions to return this case to the state

courts.” Devillier v. Texas, No. 21-40750, 2022 U.S. App. LEXIS 32519, at

*1 (5th Cir. Nov. 23, 2022) (per curiam).

That sentence is plainly wrong for a host of reasons. First and

foremost, the absence of a cause of action is a merits problem, not a

jurisdictional one. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89

(1998) (“It is firmly established in our cases that the absence of a valid (as

opposed to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate

the case.”); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction . . . is not

defeated . . . by the possibility that the averments might fail to state a cause

of action on which petitioners could actually recover.”); 5B Charles

Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1350 (3d ed. Apr. 2022 update) [Wright & Miller]

(“Nor, as many courts have noted, should a motion under Rule 12(b)(1) be

confused with a motion under Rule 12(b)(6) to dismiss for failure to state a

claim for relief under federal or state law because the two are analytically

different; as many courts have observed, the former determines whether the

plaintiff has a right to be in the particular court and the latter is an

adjudication as to whether a cognizable legal claim has been stated.”).

23

No. 21-40750

Second, the panel apparently forgot that the case came to us on a

§ 1292(b) certification and that other federal claims remained pending in the

district court, so “this case” could not be “return[ed] . . . to the state

courts.” Devillier, 2022 U.S. App. LEXIS 32519, at *1.

Third, rather than discussing any of the Supreme Court’s decisions

under the Takings Clause, the panel’s only support for its assertion was a

footnote reference to two unrelated cases: The Supreme Court’s most recent

Bivens decision, Hernandez v. Mesa, 140 S. Ct. 735 (2020), and the Ninth

Circuit’s aged decision in Azul–Pacifico, Inc. v. City of Los Angeles, 973 F.2d

704 (9th Cir. 1992).

Fourth, one-paragraph opinions with one-sentence explanations are

usually reserved for our summary calendar, not pathbreaking constitutional

rulings depriving property owners of any forum, state or federal, for claims

under centuries-old constitutional provisions.

Both sides pointed out these and other errors in cross-petitions for

rehearing. And the Institute for Justice filed a motion for leave to file an

amicus brief supporting rehearing en banc because “the Panel failed to

discuss or even mention the line of Supreme Court cases establishing,

repeatedly and clearly, that the Fifth Amendment’s Takings Clause is self-

executing and needs no statutory recognition.” IJ Amicus at 2. The putative

amicus also argued:

[T]he Panel’s holding has immense practical ramifications for

this Circuit in particular. Regardless of whether Texas allows

its courts to hear and enforce takings claims against state

entities, Louisiana does not. The holding below, unless

corrected, leaves property owners in Louisiana without any

vehicle for vindicating fundamental constitutional rights. Such

a result, correct or otherwise, deserves more explanation than

the Panel provided.

24

No. 21-40750

Id. at 3.

Again without explanation, the panel denied IJ’s motion for leave to

file its amicus brief. And again without explanation, it then denied the

petitions for rehearing. Crucially, however, it revised its one-sentence

rejection of plaintiffs’ takings claims to make clear that it was rejecting them

on the merits—and hence with prejudice to refiling them anywhere. Specifically,

the panel deleted its previous reference to the district court’s jurisdiction and

replaced it with this: “Because we hold that the Fifth Amendment Takings

Clause as applied to the [S]tates through the Fourteenth Amendment does

not provide a right of action for takings claims against a [S]tate, we VACATE

the district court’s decision and REMAND for further proceedings.”

Devillier v. Texas, 53 F.4th 904 (5th Cir. 2023) (per curiam) (footnote

omitted). The panel left unchanged its footnoted reference to a Bivens case

and a Ninth Circuit decision from 1992. See id. at 904 n.1. And it again refused

even to discuss a single one of the myriad Takings Clause cases or arguments

proffered by the plaintiffs and the Institute for Justice.

II.

This appeal should’ve begun and ended with the State’s decision to

remove to federal court under 28 U.S.C. § 1441. That’s for two reasons.

First, the State’s decision to remove obviously constitutes a waiver of

its sovereign immunity. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535

U.S. 613 (2002). In 2019, the Supreme Court held that federal takings

plaintiffs are free to bring their claims in federal court in the first instance.

See Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (overruling Williamson

Cnty. Reg’l Plan. Comm’n v. Hamilton Bank, 473 U.S. 172 (1985)). That

decision created newfound attention on the question of whether States enjoy

sovereign immunity against post-Knick takings claims. See, e.g., Bay Point

Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454 (5th Cir. 2019). But cases

25

No. 21-40750

like Bay Point concern takings claims brought originally in federal court

against non-consenting States. Regardless of whether the State can assert

sovereign immunity when it’s haled into federal court against its will for

taking property, Lapides says the State cannot assert sovereign immunity

after the State chooses the federal forum by filing a notice of removal.

Second, the State removed under § 1441 on the theory that plaintiffs’

claims “arise under” federal law. But as Justice Holmes put it more than a

century ago, “[a] suit arises under the law that creates the cause of action.”

Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). That

means, as a general matter, suits are removable under § 1441 only when

federal law creates the cause of action:

[A] federal court does not have original jurisdiction over a case

in which the complaint presents a state-law cause of action. . . .

For better or worse, under the present statutory scheme as it

has existed since 1887, a defendant may not remove a case to

federal court unless the plaintiff ’s complaint establishes that

the case “arises under” federal law. A right or immunity

created by the Constitution or laws of the United States must

be an element, and an essential one, of the plaintiff’s cause of

action.

Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal.,

463 U.S. 1, 10–11 (1983) (quotations and footnote omitted).

Consider, for example, Merrell Dow Pharmaceuticals v. Thompson, 478

U.S. 804 (1986). In that case, the plaintiff brought a state tort action

predicated on the allegation that a drug company violated a federal

misbranding standard. The drug company tried to remove on the theory that

the federal misbranding standard was an essential element to plaintiff’s cause

of action and obviously appeared on the face of the complaint. See Louisville

& Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152–53 (1908). The Supreme

Court held the action was not removable because to hold otherwise would

26

No. 21-40750

“flout” Congress’s decision not to create a federal cause of action for such

misbranding claims. Merrell Dow, 478 U.S. at 812. Because the State—and

only the State—created the plaintiff’s cause of action, the Court held the suit

had to stay in state court. The fact that the entirety of the case was predicated

on a federal misbranding standard was irrelevant. 1

The State’s decision to invoke § 1441 means one of two things must

be true. First, federal law gives the plaintiffs a federal cause of action to

litigate their federal takings claims, and hence the suit arises under federal

law—as the State effectively conceded in its notice of removal. If that’s true,

the opinion written by the magistrate judge and adopted by the district court

was correct and should be affirmed.

Second, and alternatively, federal law does not give plaintiffs a cause

of action to litigate their federal takings claims—as the panel opinion

concluded in its one-paragraph opinion. It’s true, after all, that § 1983 does

not supply a cause of action to sue the State under Will, and in the absence of

another federal cause of action, 2 that might mean plaintiffs are left

exclusively with state-law claims. In that case, however, the correct outcome

1

There are exceptions to the rule that §§ 1331 / 1441 jurisdiction attaches only

where the plaintiff raises a cause of action created by federal law. See, e.g., Grable & Sons

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). But see id. at 320–21

(Thomas, J., concurring) (urging the Court to return to the simplicity of the American Well

Works rule). The State, as the party invoking federal jurisdiction, has never urged such

exceptions, however. See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 542 (5th Cir.

2019) (“Arguments in favor of standing, like all arguments in favor of jurisdiction, can be

forfeited or waived.”).

2

It’s unclear that plaintiffs do not have another federal cause of action. For

example, it’s unclear why plaintiffs’ demand for injunctive relief does not trigger our en

banc holding that plaintiffs can use Ex Parte Young as a cause of action even when they

cannot use § 1983. See Green Valley Special Util. Dist. v. City of Schertz, Tex., 969 F.3d 460,

475 (5th Cir. 2020) (en banc) (citing Ex parte Young, 209 U.S. 123, 149 (1908)). But see id.

at 494 (Oldham, J., concurring) (questioning this holding).

27

No. 21-40750

is to remand plaintiffs’ takings claims to state court because we have no

arising-under jurisdiction to hear the claims. See Franchise Tax Bd., 463 U.S.

at 8 (“If it appears before final judgment that a case was not properly

removed, because it was not within the original jurisdiction of the United

States district courts, the district court must remand it to the state court from

which it was removed.” (emphasis added)).

The panel tried to follow this second route in its first opinion. It said:

“[W]e VACATE the district court’s decision for want of jurisdiction and

REMAND with instructions to return this case to the state courts.” Devillier,

No. 21-40750, 2022 U.S. App. LEXIS 32519, at *1 (emphases added). But

then the State reminded the panel that the “[a] long line of precedent makes

clear that lack of a cause of action is not a jurisdictional defect.” Texas Pet.

for Reh’g at 5 (citing, inter alia, Steel Co. and Bell v. Hood). So the panel

amended its decision to say:

Devillier, 53 F.4th at 904. This second decision was thus a merits

determination and hence a with-prejudice dismissal. See Steel Co., 523 U.S.

at 88–89.

But § 1441 precludes this disposition of the case. We cannot affirm the

exercise of federal jurisdiction because plaintiffs’ claims arise under federal

law and then dismiss the claims with prejudice because plaintiffs’ claims arise

under state law. The panel’s contrary holding means plaintiffs’ claims are

gone forever. See, e.g., Wright & Miller, supra, § 4439 (“[D]ismissal

for failure to state a claim precludes a second action that presents the same

claim through a better complaint.”).

The panel’s decision is not just wrong, it also has staggering

implications because it renders federal takings claims non-cognizable in any

28

No. 21-40750

court at any time ever. Under the old Williamson County regime, before Knick

overruled it, plaintiffs were forced to litigate their federal takings claims in

state court. And the only federal review a property owner could get was from

the Supreme Court exercising its certiorari jurisdiction under 28 U.S.C.

§ 1257 to review the state court’s treatment of the Takings Clause. See San

Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005).

Numerous plaintiffs took that route, sued their States in state court, and then

obtained review in the Supreme Court under § 1257. See, e.g., Murr v.

Wisconsin, 137 S. Ct. 1933, 1941–42 (2017); Stop the Beach Renourishment, Inc.

v. Fla. Dept. of Env’t Prot., 560 U.S. 702, 711–12 (2010); Palazzolo v. Rhode

Island, 533 U.S. 606, 615–16 (2001); Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1009–10 (1992); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 829–31

(1987).

The plaintiffs in this case attempted to litigate their claims in state

court—just as the plaintiffs did in Murr, Stop the Beach, Palazzolo, Lucas, and

Nolan. And obviously the plaintiffs didn’t need a federal cause of action to do

that; the state courts are full of litigants who do not have federal causes of

action. And even without a federal cause of action, the plaintiffs could’ve

litigated their federal takings claims all the way through the state court system

and then gone to the Supreme Court of the United States under § 1257—just

as the plaintiffs did in Murr, Stop the Beach, Palazzolo, Lucas, and Nolan.

That’s because the Supreme Court can exercise its § 1257 jurisdiction to

review federal issues decided by state courts even if the petitioner lacks a

federal cause of action and hence could not satisfy the inferior federal courts’

arising-under jurisdiction. See Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d

317, 324 (1st Cir. 2001) (Boudin, C.J.) (“The Supreme Court is entitled to

review a state-court decision that decides a federal issue even if the action is

one that could not have been brought in a federal district court under

statutory ‘arising under’ jurisdiction.”). A Supreme Court certiorari petition

29

No. 21-40750

provides relatively little federal protection for a federal takings claim, which

is one reason the Supreme Court overturned Williamson County. But at least

it was something.

The panel decision reduces the Takings Clause to nothing. Think

about what now happens when landowners in our Circuit have their property

taken by the State. The landowner can try to bring a federal takings claim in

state court; the State removes; the federal court must assert jurisdiction and

dismiss the claim with prejudice under the panel’s published decision in this

case. Likewise if the landowner tries to bring suit originally in federal district

court. So the landowner now has only two choices—both of which render the

Takings Clause a dead letter. The landowner can abandon the federal claim

and sue solely under state law in state court—as if the People never bothered

to ratify the federal Takings Clause in the first place. Of course, as the

Institute for Justice pointed out in its inexplicably rejected amicus brief, that

does nothing for landowners in Louisiana because that State does not afford

its citizens a state-law takings remedy. See IJ Amicus Br. at 9–10 (citing

Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans, 29 F.4th 226, 228 (5th

Cir. 2022) (“[S]ince Louisiana courts lack the power to force another branch

of government to make an appropriation, the prevailing plaintiff has no

judicial mechanism to compel the defendant to pay. The plaintiff who

succeeds in an action against a governmental unit thus becomes a supplicant,

relying on the grace of the government to appropriate funds to satisfy her

judgment.” (quotation omitted))). A Louisiana landowner must instead

“rely exclusively upon the generosity of the judgment debtor.” Ariyan, 29

F.4th at 232 (quotation omitted). The landowner’s only other alternative is

to ask the Supreme Court to reverse us.

Finally, under the panel’s decision, the federal Due Process Clause

claims pending in federal district court fail too. After all, plaintiffs cannot use

§ 1983 to raise those claims either. So the panel has held that all of plaintiffs’

30

No. 21-40750

federal constitutional claims arise under federal law for purposes of allowing

the State to remove but arise under state law for purposes of the merits. That

is transparently wrong. And it requires dismissing all of plaintiffs’ claims with

prejudice to refiling anywhere even if the claims are correct on the merits.

III.

Now let’s talk about the merits. The State’s position, adopted by the

panel, is that claims under the Takings Clause can be raised only under

§ 1983. I am not sure how § 1983 and the Supreme Court’s implied-rights-

of-action cases apply in this area. But I am sure of three things: (A) the

panel’s decision reflects a deeply ahistorical understanding of takings

litigation in our Nation; (B) the Supreme Court in First English specifically

rejected the Solicitor General’s contention that Takings Claims are

actionable only under § 1983 or some other federal statutory cause of action;

and (C) these issues plainly warranted some discussion in the panel’s

opinion—which ignored all of them.

A.

At the Founding, it was clear that the Takings Clause afforded a

remedy for uncompensated takings separate and apart from any statute. For

example, in proposing the Takings Clause as part of the Bill of Rights, James

Madison emphasized that federal courts would enforce the clause directly:

“independent tribunals of justice will consider themselves in a peculiar

manner the guardians of those rights . . . .” James Madison, Amendments to

the Constitution (June 8, 1789), in 12 The Papers of James Madison

197, 207 (Charles F. Hobson et al. eds., 1979) [Madison Papers]; see also

William Michael Treanor, The Original Understanding of the Takings Clause

and the Political Process, 95 Colum. L. Rev. 782, 794–95 & n.69 (1995);

Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither

Weak Nor Obtuse, 88 Colum. L. Rev. 1630, 1660–61 & nn.158–61 (1988).

31

No. 21-40750

Thus in his famous essay, Property, Madison emphasized that the

Constitution itself protected property owners from uncompensated takings:

If there be a government then which prides itself in maintaining

the inviolability of property; which provides that none shall be

taken directly even for public use without indemnification to the

owner, and yet directly violates the property which individuals

have in their opinions, their religion, their persons, and their

faculties; nay more, which indirectly violates their property, in

their actual possessions, in the labor that acquires their daily

subsistence, and in the hallowed remnant of time which ought

to relieve their fatigues . . . such a government is not a pattern

for the United States.

James Madison, Property, Nat’l Gazette (Mar. 27, 1792), reprinted in 14

Madison Papers, supra, at 266, 267–68.

Still, the Marshall Court held that the Takings Clause applied only to

takings by the federal government and not to takings by the States. See Barron

v. Baltimore, 32 U.S. (7 Pet.) 243, 250–51 (1833) (Marshall, C.J.). And even

as to takings by the federal government, Congress chose to remedy them with

“private” acts before the Civil War. See Richard H. Fallon, Jr.,

John F. Manning, Daniel J. Meltzer, & David L. Shapiro,

Hart & Wechsler’s The Federal Courts and the Federal

System 897 (7th ed. 2015) [Hart & Wechsler]. “While Congress was

the forum for takings claims, it did not have discretion to deny takings claims

mandated by the Takings Clause.” Treanor, supra, at 794 n.69. Rather, early

Congresses’ approach to paying for taken property apparently derived from

their views about sovereign immunity rather than any doubt that the Fifth

Amendment, standing alone, required a just-compensation remedy for

takings. Hart & Wechsler, supra, at 896–97. As the Supreme Court put

it in citing cases going back to 1837:

32

No. 21-40750

By this legislation congress seems to have assumed the right to

determine what shall be the measure of compensation. But this

is a judicial, and not a legislative, question. The legislature may

determine what private property is needed for public purposes;

that is a question of a political and legislative character. But

when the taking has been ordered, then the question of

compensation is judicial. It does not rest with the public, taking

the property, through congress or the legislature, its

representative, to say what compensation shall be paid, or even

what shall be the rule of compensation. The constitution has

declared that just compensation shall be paid, and the

ascertainment of that is a judicial inquiry.

Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893) (citing,

inter alia, Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36

U.S. (11 Pet.) 420 (1837)).

And starting at the Founding, federal courts entertained suits arising

from uncompensated takings by States. The first Congress enacted two

statutes—the Process Acts of 1789 and 1792—that directed inferior federal

courts to borrow common-law causes of action from the States where they

sat. See Act of Sept. 29, 1789, ch. 21, 1 Stat. 93; Act of May 8, 1792, ch. 36, 1

Stat. 275; Anthony J. Bellia, Jr. & Bradford R. Clark, The Original Source of

the Cause of Action in Federal Courts: The Example of the Alien Tort Statute,

101 Va. L. Rev. 609, 627–28 (2015). As a result, federal courts adjudicated

a whole host of takings-related claims under various causes of action. See,

e.g., Van Horne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (C.C.D. Pa.

1795); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603

(1812); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810); Terrett v. Taylor,

13 U.S. (9 Cranch) 43, 52 (1815); Green v. Biddle, 21 U.S. 1 (1823); Bonaparte

v. Camden & A.R. Co., 3 F. Cas. 821, 831 (C.C.D. N.J. 1830) (No. 1617); Yates

v. Milwaukee, 77 U.S. (10 Wall.) 497, 507 (1870). Undoubtedly, federal courts

played a “robust role in protecting property rights against states and local

33

No. 21-40750

encroachments well before the advent of the Fourteenth Amendment.” Ann

Woolhandler & Julia D. Mahoney, Federal Courts and Takings Litigation,

97 Notre Dame L. Rev. 679, 686 (2022).

It’s unclear why Congress’s enactment of § 1983 in 1871 could

somehow strip federal courts of their powers to hear takings

claims. See Woolhandler & Mahoney, supra, at 686–91. Between 1871 and the

incorporation of the Takings Clause in 1897, federal courts continued to hear

state takings claims without mention of § 1983. See Pumpelly, 80 U.S.

166; Miss. & Rum River Boom Co. v. Patterson, 98 U.S. (8 Otto) 403 (1878); N.

Transp. Co. v. City of Chicago, 99 U.S. (9 Otto) 635 (1878); Hollingsworth v.

Parish of Tensas, 17 F. 109 (C.C.W.D. La. 1883); Pac. R.R. Removal Cases, 115

U.S. 1, 5–6 (1885); Chicago, Burlington & Quincy R.R. Co. v. City of Chicago,

166 U.S. 226, 238–41 (1897) (incorporating the Takings Clause).

Post-incorporation, federal courts adjudicated these claims under the

Constitution directly, and plaintiffs did not need to (nor did they) invoke

§ 1983. See, e.g., Village of Norwood v. Baker, 172 U.S. 269, 277 (1898) (“The

plaintiff’s suit proceeded upon the ground, distinctly stated, that the

assessment in question was in violation of the fourteenth amendment . . . . It

has been adjudged that the due process of law prescribed by that amendment

requires compensation to be made or secured to the owner when private

property is taken by a state, or under its authority, for public

use.”); Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462 (1916); Del.,

L. & W.R. Co. v. Town of Morristown, 276 U.S. 182 (1928); Village of Euclid v.

Ambler Realty Co., 272 U.S. 365 (1926); Dohany v. Rogers, 281 U.S. 362

(1930).

The Court has not only entertained claims outside of the § 1983 cause

of action, but it has also stated that Congress cannot render the Takings

Clause unenforceable by failing to create an independent cause of action. As

34

No. 21-40750

the Court said one-hundred years ago in 1923, “[j]ust compensation is

provided for by the Constitution and the right to it cannot be taken away by

statute.” Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923).

And as the Court specified in 1933:

The suits were based on the right to recover just compensation

for property taken by the United States for public use in the

exercise of its power of eminent domain. That right was

guaranteed by the Constitution. . . . The form of the remedy

did not qualify the right. It rested upon the Fifth Amendment.

Statutory recognition was not necessary. . . . The suits were

thus founded upon the Constitution of the United States.

Jacobs v. United States, 290 U.S. 13, 16 (1933).

The Court affirmed the self-executing nature of the Fifth Amendment

again and again throughout the twentieth century. See, e.g., First English

Evangelical Lutheran Church of Glendale v. Los Angeles County, Cal., 482 U.S.

304, 315 (1987) (holding that the Fifth Amendment doesn’t just create a right

but “necessarily implicates the constitutional obligation to pay just

compensation” in the event of a taking and that the “self-executing character

of the constitutional provision” bestows a landowner with a cause of action

(quotation omitted) (emphasis added)); Kirby Forest Indus., Inc. v. United

States, 467 U.S. 1, 5 (1984) (When ousted by the United States, “the owner

has a right to bring an inverse condemnation suit to recover the value of the

land on the date of the intrusion by the Government.” (quotation omitted));

United States v. Clarke, 445 U.S. 253, 257 (1980) (“A landowner is entitled

to bring such an [inverse condemnation] action as a result of the self-

executing character of the constitutional provision with respect to

compensation.” (quotation omitted)); Dickinson, 331 U.S. at 748 (“But

whether the theory of these suits be that there was a taking under the Fifth

Amendment, and that therefore the Tucker Act may be invoked because it is

35

No. 21-40750

a claim founded upon the Constitution, or that there was an implied promise

by the Government to pay for it, is immaterial. In either event, the claim

traces back to the prohibition of the Fifth Amendment . . . .”); United States

v. Causby, 328 U.S. 256, 267 (1946) (“If there is a taking, the claim is founded

upon the Constitution . . . .” (quotation omitted)).

And if that wasn’t enough, the Court gave us another reminder as

recently as 2019. See Knick, 139 S. Ct. at 2171 (“Because of ‘the self-

executing character’ of the Takings Clause ‘with respect to compensation,’

a property owner has a constitutional claim for just compensation at the time

of the taking.” (quoting First English, 482 U.S. at 315)). And Knick

reaffirmed: “Jacobs made clear that, no matter what sort of procedures the

government puts in place to remedy a taking, a property owner has a Fifth

Amendment entitlement to compensation as soon as the government takes

his property without paying for it.” Id. at 2170.

B.

The State of Texas is not the first party to try this § 1983-or-bust

approach to the Takings Clause. In First English, the United States filed an

amicus brief on behalf of Los Angeles. See Brief for the United States as

Amicus Curiae Supporting Appellee, First English, 482 U.S. 304 (No. 85-

1199), 1986 WL 727420. It repeatedly argued that “the Constitution does

not, of its own force, furnish a basis for a court to award money damages

against the government,” id. at *14, that “the Takings Clause is strictly

prohibitory and does not, without further legislative action, mandate a

monetary award against the government,” ibid., that the Takings Clause does

not provide a remedy where state law does, id. at *25, that “the Takings

Clause’s prohibition of uncompensated takings does not imply a

constitutionally-based compensation remedy,” id. at *26, that “this Court

has been reluctant to permit a cause of action in federal court directly under

36

No. 21-40750

the Fourteenth Amendment, unaided by congressional legislation,” id. at

*30, that “Congress’s enactment of 42 U.S.C. 1983 has eliminated any need

for this Court to explore implicit constitutional remedies to be applied against

governmental bodies acting in the area of local land-use regulation,” id. at

*31, and that “[t]here is no occasion to resort to a federal remedy under

Section 1983 where the state has made provision for the payment of

compensation in an action for inverse condemnation in state court,” id. at

*32.

The Solicitor General pointed out that First English “did not rely on

42 U.S.C. 1983 in the California courts; nor has it done so in this Court.” Id.

at *32 (emphasis added). The Solicitor General contended that this failure

was fatal to the Court’s ability to reach the merits of the takings issue

because, in the Government’s view, § 1983 was the sine qua non to both

jurisdiction and the merits. See id. at *7–8 (arguing First English failed to

plead a federal issue necessary for the Supreme Court’s appellate

jurisdiction); id. at *9 (emphasizing Court should “be reluctant” to reach the

merits “where appellant declined to rely on 42 U.S.C. 1983”). In all but

urging the Court to dismiss for lack of jurisdiction, the Solicitor General

further argued that First English’s failure to invoke § 1983 put the case in an

“uninviting posture” and made it “far from a model of pleading practice.”

Id. at *9–10.

The Supreme Court was thus squarely presented with the question—

in a case where the takings plaintiff did not rely on § 1983—whether that

statutory cause of action is an indispensable prerequisite for recovering just

compensation. And the Supreme Court emphatically held no. As most

relevant here, the Court said:

The Solicitor General urges that the prohibitory nature of the

Fifth Amendment, combined with principles of sovereign

immunity, establishes that the Amendment itself is only a

37

No. 21-40750

limitation on the power of the Government to act, not a

remedial provision. The cases cited in the text [including Kirby,

Causby, Seaboard Line, and Monongahela Navigation], we

think, refute the argument of the United States that ‘the

Constitution does not, of its own force, furnish a basis for a court to

award money damages against the government.’ Though arising in

various factual and jurisdictional settings, these cases make

clear that it is the Constitution that dictates the remedy for

interference with property rights amounting to a taking.

First English, 482 U.S. at 316 n.9 (emphases added) (quoting Brief for the

United States as Amicus Curiae Supporting Appellee, supra, at *14).

True, many plaintiffs invoke § 1983 to bring takings claims against

defendants (like cities and counties) that are amenable to suit under that

statute. After all, a § 1983 claim carries with it the promise of fees under 42

U.S.C. § 1988. And many of the defendants that take property are suable

under § 1983. But the popularity of § 1983 claims does not imply that § 1983

is plaintiffs’ only avenue for relief. Indeed, First English specifically rejected

the State’s (and the panel’s) assertion to the contrary. And it would be

surprising (to say the least) if Congress’s enactment of § 1983—which

expanded the remedies for constitutional violations—somehow eliminated

plaintiffs’ well-established rights, existing since the dawn of the Republic, to

vindicate their federal rights against non-§ 1983 defendants (like States).

C.

Takings litigation has a rich history in our Nation, separate and apart

from any statute. And the Supreme Court has said that the Takings Clause

provides a remedy to property owners, separate and apart from any statute.

So if we’re going to say that it’s § 1983 or the (ahem) highway, we have an

awful lot of explaining to do. Way more than the panel’s one sentence. And

all of the explanation in the world cannot justify holding that plaintiffs’

federal takings claims are not cognizable in any court at any time.

38

No. 21-40750

The panel’s disposition of this case is far worse than the bad-old days

of Williamson County. The Williamson County regime made it impossible to

bring suit in federal court against States (or any other defendant) for taking

property in violation of the Takings Clause. Rather, the Court held that all

federal takings claims must be brought in state court—subject to review, if at

all, only in the Supreme Court on certiorari. See Williamson County, 473 U.S.

at 194–97. The panel decision in our case appears to embrace that same

result: Yes, plaintiffs who lost land alongside IH-10, you have a federal right

under the Takings Clause, but no, it cannot be vindicated in the inferior

federal courts.

But two points about this Williamson-County-revivified holding bear

emphasis. First, the Supreme Court overturned Williamson County in Knick,

and it’s not our prerogative to say otherwise. See Knick, 139 S. Ct. at 2179.

And second, the panel’s decision is even worse than Williamson County

because under today’s decision, plaintiffs who sue in state court can have

their cases removed and dismissed before any court ever passes on the merits.

IV.

Given the terseness of the panel’s disposition, it’s hard to know for

sure what all went into its two decisions. It’s also hard to know why the panel

did not cite the Supreme Court’s takings precedents, much less explain them

away. Today, two members of the panel issue comparatively scopious

opinions to defend the rejection of plaintiffs’ claims. There are at least five

problems with this post hoc approach (in addition to the others referenced

above).

A.

First, the parties have a right to know why their claims are being

adjudicated on the merits and barred from refiling in any court at any time.

And they have a right to know that before their time for seeking rehearing

39

No. 21-40750

expires—to say nothing of the time for petitioning the Supreme Court for

certiorari. But in this case the parties cross-moved for rehearing, a putative

amicus sought to participate in rehearing, and all of the motions were denied

before they had any understanding of why. What’s worse, the plaintiffs even

had to file their petition for certiorari before they had an explanation for why

their claims were adjudicated on the merits and subjected to res judicata. See

Petition for Writ of Certiorari, Devillier v. Texas (No. 22-913). And it is little

comfort to say the plaintiffs had the panel opinion’s lonely paragraph of

explanation, which pales in comparison to what we offer (for example) in

single-judge opinions for pro se litigants who request a certificate of

appealability. See, e.g., Faye v. Vannoy, No. 17-30809, 2018 WL 11446637, at

*1 (5th Cir. Nov. 7, 2018).

B.

Second, the most telling thing about today’s concurring opinions is

what they do not say. Neither offers a single word of explanation, rebuttal, or

disagreement with Part II of this dissent. That is, our en banc court

apparently agrees that (1) plaintiffs’ claims arise under federal law for

purposes of making them removable under 28 U.S.C. § 1441; (2) plaintiffs’

claims nonetheless do not arise under federal law for purposes of the merits;

and (3) plaintiffs’ claims are forever barred from refiling anywhere.

C.

Third, Judge Higginson says the panel footnoted a Bivens case

because, in its view, this is a case about “implied cause[s] of action.” Ante,

at 9 (Higginson, J., concurring). But the fact that the Fourth Amendment

does not specify a remedy for the illegal search-and-seizure of Webster

Bivens doesn’t say anything about the Fifth Amendment’s very specific

remedy for the unconstitutional taking of plaintiffs’ land. And the Supreme

Court has repeatedly admonished that takings claims—and plaintiffs’

40

No. 21-40750

entitlements to “just compensation”—exist independent of any statute. See,

e.g., First English, 482 U.S. at 315–16 & n.9; Seaboard Air Line Ry., 261 U.S.

at 304. The Court has never said anything even close to that about the Fourth

Amendment. That’s not to say plaintiffs are necessarily right. It’s just to say

that Bivens doesn’t prove they’re wrong.

Moreover, the panel’s footnoted analogy to Bivens does nothing to

confront one of the most profound truths in all of constitutional law and

federal courts: “The constitutional text refers to only two remedies: (1) a

right to just compensation for takings and (2) the privilege of the writ of

habeas corpus.” Hart & Wechsler, supra, at 330. That sets these two

constitutional rights apart from others and at least suggests these two

rights—even if not all others in the Constitution—have special protections

against congressional abrogation or dereliction. Cf. Battaglia v. Gen. Motors

Corp., 169 F.2d 254 (2d Cir. 1948) (analyzing congressional effort to deny any

forum, state or federal, to raise a constitutional claim). Indeed, the Court has

held that the Constitution’s protection for habeas corpus rendered invalid a

congressional restriction on federal jurisdiction for habeas claims. See

Boumediene v. Bush, 553 U.S. 723 (2008); Hart & Wechsler, supra, at

338 (“Boumediene is the only Supreme Court decision clearly holding that a

congressional enactment restricting jurisdiction—in that case, of both federal

and state courts—is unconstitutional.”). Yet the panel’s decision in this case

denies any forum—state or federal—to the only other constitutionally

guaranteed remedy of just compensation. So the monumental questions of

constitutional law and federal courts posed by this case cannot be avoided by

analogizing to Bivens.

And even if the cause of action is “implied,” Bivens still is the wrong

framework. See ante, at 11 n.1 (Higginson, J., concurring). The cause of action

for takings claims pre-dated Bivens by over a hundred years and traces its

41

No. 21-40750

lineage all the way to the Founding. It therefore cannot be dismissed as

“judicial genesis” of the same sort that begat Bivens. Ibid.

D.

Fourth, Judge Higginson’s reliance on Maine Community Health

Options v. United States, 140 S. Ct. 1308 (2020), is misplaced. That case

involved a statutory right of action under the Tucker Act for takings claims

against the federal government. See id. at 1331. But it said nothing about

situations like this one where Congress does not enact a statutory cause of

action. In fact, the Court expressly declined to decide whether plaintiffs could

bring their claims under the Takings Clause because the Tucker Act provided

them with just compensation: “Having found that the Risk Corridors statute

is a money-mandating provision for which a Tucker Act suit lies, we need not

resolve petitioners’ alternative arguments for recovery based on an implied-

in-fact contract theory or under the Takings Clause.” Id. at 1331 n.15. And

faced with no statutory cause of action in First English, the Court did decide

that the Takings Clause provided an independent cause of action. See 482

U.S. at 315–16; see Part III.B, supra.

E.

Fifth and finally, Judge Higginbotham suggests the panel

referenced the Texas Supreme Court because it thinks federal takings claims

are cognizable in Texas’s courts but not ours. Ante, at 4 (Higginbotham, J.,

concurring). There are at least three problems with that.

First, as explained in Part II, supra, plaintiffs cannot relitigate their

claims in state court. They have been adjudicated on the merits here. So the

case is now over. And by exerting § 1441 jurisdiction, the panel has allowed

States to remove federal takings claims from state court—thus empowering

defendants to deprive plaintiffs of the state forum that Judge

Higginbotham says would otherwise exist.

42

No. 21-40750

Second, the Supreme Court has repeatedly said that the Takings

Clause guarantees plaintiffs just compensation regardless of whether States

provide 100% relief in state court or under state law. See, e.g., Knick, 139 S.

Ct. at 2170–71; First English, 482 U.S. at 315, 316 n.9; Jacobs, 290 U.S. at 16;

Seaboard, 261 U.S. at 304; Chicago, 166 U.S. at 233–41; see also Palazzolo, 533

U.S. at 615–17 (Supreme Court entertaining takings claim against a State

based on the federal Constitution, not state statute); Woolhandler

& Mahoney, supra, at 681 (indicating that between Reconstruction and the

New Deal, federal courts commonly exercised federal question jurisdiction

to hear takings claims). Moreover, even if the State of Texas would otherwise

provide a remedy to Texans who sue in state court and somehow manage to

avoid removal of their claims to federal court, the State of Louisiana does not.

See Ariyan, 29 F.4th at 228. Judge Higginbotham does not dispute

that. 3

And third, just because federal rights can be vindicated in state court,

it does not follow that these rights cannot be vindicated in federal court.

Under Judge Higginbotham’s contrary logic, we would be obligated to

dismiss every single § 1983 claim we see because, after all, state courts must

always be open to them. See Haywood v. Drown, 556 U.S. 729, 739–40 (2009)

(holding that once a State creates a court of general jurisdiction, as all three

of our States have, the State must hear and adjudicate § 1983 claims).

* * *

Much more could be said about the evolution of the federal cause-of-

action requirement from the Process Acts to Ex parte Young to § 1983 and the

Takings Clause. Much more could be said about sovereign immunity and

3

Judge Higginson does dispute it, albeit in a footnote. See ante, at 15 n.5. But

he does so only to dispute that Ariyan held what it held.

43

No. 21-40750

jurisdiction. And much more could be said about the principles of

federalism—including, the need to balance federal protection for federal

rights against the State’s eminent domain powers, the State’s power over

property law, and the State’s dignity as a sovereign in our federal system. It’s

a shame we’re unwilling to consider these important issues en banc. And it’s

a shame that property owners in our circuit can no longer litigate Takings

Clause claims in any forum, state or federal. I respectfully dissent.

44