Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.

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No. 17-647

In the Supreme Court of the United States

ROSE MARY KNICK, PETITIONER

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF VACATUR AND REMAND

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. WOOD

CHAD A. READLER

Acting Assistant Attorneys

General

JEFFREY B. WALL

Principal Deputy Solicitor

General

ERIC GRANT

HASHIM M. MOOPPAN

Deputy Assistant Attorneys

General

BRIAN H. FLETCHER

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

BRIAN C. TOTH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985),

properly bars a property owner from filing an action in

federal district court seeking just compensation for an

asserted taking by a local government in circumstances

where state law provides an adequate mechanism for

obtaining just compensation in state court.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Constitutional and statutory provisions involved...................... 1

Statement:

A. The Williamson County rule ................................... 2

B. The present controversy .......................................... 4

Summary of argument ................................................................. 5

Argument:

I. The failure to provide contemporaneous

compensation for a taking does not violate the

Fifth Amendment if the government has provided

an adequate mechanism for obtaining just

compensation .................................................................... 8

A. This Court has long held that the

Fifth Amendment does not require that

compensation be paid before or at the same

time as a taking ......................................................... 8

B. This Court’s longstanding interpretation is

consistent with the text of the Takings Clause

and with historical evidence ................................... 13

C. Congress and the Executive Branch have

relied on this Court’s longstanding

interpretation........................................................... 15

II. The existence of an adequate state-law mechanism

for obtaining just compensation for a taking by

a local government does not prevent the owner

from vindicating her Fifth Amendment rights in

federal court ................................................................... 17

A. Williamson County does not prevent local

takings claimants from seeking just

compensation in federal court under their

state-law causes of action ....................................... 19

1. Williamson County rested on an

understanding of the cause of action

in Section 1983 .................................................. 19

(III)

IV

Table of Contents—Continued:

Page

2. Owners asserting a Fifth Amendment

right to compensation may bring their

state inverse-condemnation actions in

federal court under Section 1331 .................... 22

B. This Court also could revisit and reject

Williamson County’s understanding of

Section 1983 ............................................................. 28

1. There are special justifications for

reconsidering Williamson County’s

understanding of Section 1983 ........................ 28

2. Williamson County’s understanding of

Section 1983 is incorrect .................................. 30

Conclusion ................................................................................... 34

Appendix — Constitutional and statutory provisions .......... 1a

TABLE OF AUTHORITIES

Cases:

Albert Hanson Lumber Co. v. United States,

261 U.S. 581 (1923).............................................................. 10

Alexander v. Sandoval, 532 U.S. 275 (2001) ....................... 27

Arkansas Game & Fish Comm’n v. United States,

568 U.S. 23 (2012) ............................................................... 16

Arrigoni Enters. v. Town of Durham, 136 S. Ct. 1409

(2016) ...............................................................4, 24, 27, 28, 29

Asociación De Subscripción Conjunta Del Seguro

De Responsibilidad Obligatorio v. Flores Galarza,

484 F.3d 1 (1st Cir. 2007) ................................................... 26

Backus v. Fort St. Union Depot Co., 169 U.S. 557

(1898) .................................................................................... 10

Blanchard v. City of Kansas, 16 F. 444

(C.C.W.D. Mo. 1883) ........................................................... 14

V

Cases—Continued:

Page

Bragg v. Weaver, 251 U.S. 57 (1919) .................................... 10

Boom Co. v. Patterson, 98 U.S. 403 (1878) .......................... 26

Carey v. Piphus, 435 U.S. 247 (1978) .................................. 33

Cherokee Nation v. Southern Kan. Ry. Co.,

135 U.S. 641 (1890)...........................................2, 9, 10, 13, 31

City of Chicago v. International College of Surgeons,

522 U.S. 156 (1997).............................................. 7, 24, 25, 26

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) ........................................ 21, 26, 31

Commonwealth v. Rogers, 634 A.2d 245

(Pa. Super. Ct. 1993) ........................................................... 23

Crozier v. Fried. Krupp A.G., 224 U.S. 290 (1912) ...... 10, 11

Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 12

Dohany v. Rogers, 281 U.S. 362 (1930) ............................... 10

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...................... 18

Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,

438 U.S. 59 (1978) ............................................................... 12

First English Evangelical Lutheran Church of

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

(1987) ........................................................................ 27, 28, 31

Grable & Sons Metal Prods., Inc. v. Darue Eng’g

& Mfg., 545 U.S. 308 (2005).................................... 23, 24, 25

Gunn v. Minton, 568 U.S. 251 (2013) ............................ 24, 25

Halliburton Co. v. Erica P. John Fund, Inc.,

134 S. Ct. 2398 (2014) ......................................................... 28

Hartman v. Moore, 547 U.S. 250 (2006).............................. 33

Hays v. Port of Seattle, 251 U.S. 233 (1920) ................. 10, 11

Heck v. Humphrey, 512 U.S. 477 (1994) ............................. 21

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) .................................................. 12

Hohn v. United States, 524 U.S. 236 (1998) ........................ 28

VI

Cases—Continued:

Page

Horne v. Department of Agric.:

569 U.S. 513 (2013) .................................................... 19, 20

135 S. Ct. 2419 (2015) ...................................................... 14

Howlett v. Rose, 496 U.S. 356 (1990) ............................... 4, 31

Hurley v. Kincaid, 285 U.S. 95 (1932)................................. 10

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

Joslin Mfg. Co. v. City of Providence, 262 U.S. 668

(1923) .................................................................................... 10

Kirby Forest Indus., Inc. v. United States,

467 U.S. 1 (1984) ................................................................. 22

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949).............................................................. 13

Lewis v. Clarke, 137 S. Ct. 1285 (2017)................................ 33

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ............ 9

MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340 (1986).............................................................. 26

Madisonville Traction Co. v. Saint Bernard Mining

Co., 196 U.S. 239 (1905) ...................................................... 10

Manuel v. City of Joliet, 137 S. Ct. 911 (2017) ................... 33

Mitchum v. Foster, 407 U.S. 225 (1972) .............................. 32

National Park Hospitality Ass’n v. Department of

the Interior, 538 U.S. 803 (2003) ....................................... 19

Patsy v. Board of Regents, 457 U.S. 496 (1982).................. 32

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) .................................................................................... 29

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978)................................................................ 8

Preseault v. ICC, 494 U.S. 1 (1990) ...................................... 12

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974).............................................................. 12

Rubottom v. M’Clure, 4 Blackf. 505 (1838) ......................... 15

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 12

VII

Cases—Continued:

Page

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981)........................................................ 22, 24

San Remo Hotel, L.P. v. City & County of San

Francisco, 545 U.S. 323 (2005) ............................ 3, 4, 18, 29

Smith v. Kansas City Title & Trust Co.,

255 U.S. 180 (1921).............................................................. 24

Stevens v. Proprietors of the Middlesex Canal,

12 Mass. 466 (1815) ............................................................. 15

Stop the Beach Renourishment, Inc. v. Florida Dep’t

of Envtl. Prot., 560 U.S. 702 (2010) ..................................... 4

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334

(2014) .................................................................................... 20

Suitum v. Tahoe Reg’l Planning Agency,

520 U.S. 725 (1997).............................................................. 26

Sweet v. Rechel, 159 U.S. 380 (1895) .............................. 10, 11

United States v. Clarke, 445 U.S. 253 (1980) ...................... 22

United States v. Dow, 357 U.S. 17 (1958) ............................ 22

United States v. Lynah, 188 U.S. 445 (1903) ...................... 22

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985)........................................................ 12, 16

Will v. Michigan Dep’t of State Police,

491 U.S. 58 (1989) ................................................................. 4

Williams v. Parker, 188 U.S. 491 (1903) ....................... 10, 11

Williamson County Reg’l Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985) ....................... passim

Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18

(1940) .............................................................................. 10, 11

Zinermon v. Burch, 494 U.S. 113 (1990) ............................. 20

Constitutions, statutes, and rule:

U.S. Const.:

Art. III .............................................................................. 20

Amend. V ............................................................passim, 1a

VIII

Constitutions, statutes, and rule—Continued:

Page

Takings Clause.................................................. passim

Amend. XIV ....................................................................... 8

Ind. Const. Art. 1, § 21 (1851) ............................................... 14

Ky. Const. Art. 12, § 12 (1792) .............................................. 14

La. Const. Tit. VI, Art. 109 (1845) ....................................... 14

Md. Const. Art. III, § 46 (1851) ............................................ 14

Regional Rail Reorganization Act of 1973,

45 U.S.C. 701 et seq. ............................................................ 12

Tucker Act, 28 U.S.C. 1491 ..................................................... 1

28 U.S.C. 1491(a) ............................................................. 12

18 U.S.C. 242 .................................................................... 34, 1a

28 U.S.C. 1331 ..........................................................passim, 2a

28 U.S.C. 1346(a)(2) ............................................................... 12

28 U.S.C. 1738 .......................................................................... 3

42 U.S.C. 1983 ..........................................................passim, 2a

42 U.S.C. 4602(a) ................................................................... 16

42 U.S.C. 4651(8) ................................................................... 16

Pennsylvania Eminent Domain Code,

26 Pa. Cons. Stat. Ann. §§ 101 et seq. (West 2009) .......... 22

§§ 502-515 ......................................................................... 26

§ 502(c) ........................................................................ 22, 3a

§ 502(c)(2) ................................................................... 23, 4a

§ 502(c)(3) ................................................................... 23, 4a

§ 502(c)(4) ................................................................... 23, 4a

Fed. R. Civ. P. 71.1(k) ........................................................... 26

Miscellaneous:

Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative

Power of the States of the American Union (1868)......... 15

1 Samuel Johnson, A Dictionary of the English

Language (2d ed. 1755) ...................................................... 13

IX

Miscellaneous—Continued:

Page

2 John Lewis, A Treatise on the Law of Eminent

Domain in the United States (3d ed. 1909) ..................... 15

James Madison, Property, Nat’l Gazette, Mar. 27,

1792, reprinted in 4 Letters and Other Writings of

James Madison (R. Worthington ed. 1884) ..................... 14

Henry E. Mills, A Treatise on the Law of Eminent

Domain (1879) .................................................................... 15

Philip Nichols, The Power of Eminent Domain

(1909) .................................................................................... 10

1 St. George Tucker, Blackstone’s Commentaries

(1803) .................................................................................... 14

1 Noah Webster, An American Dictionary of the

English Language (1841)................................................... 13

In the Supreme Court of the United States

No. 17-647

ROSE MARY KNICK, PETITIONER

v.

TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN SUPPORT OF VACATUR AND REMAND

INTEREST OF THE UNITED STATES

This case concerns the procedures available to property owners seeking to recover just compensation for

Fifth Amendment takings by local governments. Those

procedures do not apply to suits seeking to recover for

asserted takings by the United States, which may be

brought only under the Tucker Act, 28 U.S.C. 1491, or

another statute waiving sovereign immunity. But the

United States has a substantial interest in the sound development of the relevant Fifth Amendment principles.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions are

set forth in the appendix to this brief. App, infra, 1a-4a.

(1)

2

STATEMENT

A. The Williamson County Rule

1. The plaintiff in Williamson County Regional

Planning Commission v. Hamilton Bank, 473 U.S. 172

(1985) (Williamson County), owned land in Tennessee

that it wanted to develop into a residential subdivision.

Id. at 175. After the local planning commission refused

to approve the development, the plaintiff sued in federal

court, alleging that the applicable zoning laws amounted

to a Fifth Amendment taking. Id. at 176-182. It invoked

42 U.S.C. 1983, which provides a cause of action to a

party subjected to “the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws” of the United States by a person acting under

color of state law. Williamson County, 473 U.S. at 182.

This Court concluded that the Section 1983 action

was “not yet ripe” because the plaintiff had not pursued

state procedures for obtaining just compensation. Williamson County, 473 U.S. at 194. 1 The Court explained

that the Fifth Amendment does not “require that just

compensation be paid in advance of, or contemporaneously with, the taking.” Ibid. Instead, “all that is required is that a ‘reasonable, certain and adequate provision for obtaining compensation’ exist at the time of

the taking.” Ibid. (quoting Cherokee Nation v. Southern Kan. Ry. Co., 135 U.S. 641, 659 (1890)).

Applying that principle in Williamson County, the

Court observed that Tennessee law appeared to allow

the plaintiff to “bring an inverse condemnation action

The Court separately held that the claim was premature because

the plaintiff had “not yet obtained a final decision regarding how

it w[ould] be allowed to develop its property.” Williamson County,

473 U.S. at 190. That holding is not at issue here. Pet. App. A20-A21.

1

3

to obtain just compensation for [the] alleged taking.”

473 U.S. at 196. The Court noted that the plaintiff “ha[d]

not shown that the inverse condemnation procedure

[wa]s unavailable or inadequate.” Id. at 196-197. And

the Court held that “until [the plaintiff ] ha[d] utilized that

procedure, its taking claim [wa]s premature.” Id. at 197.

In a footnote, the Court explained its holding in

terms that reflected its understanding that the cause of

action in Section 1983 is available only to redress constitutional violations: “[B]ecause the Fifth Amendment

proscribes takings without just compensation, no constitutional violation occurs until just compensation has

been denied. The nature of the constitutional right

therefore requires that a property owner utilize procedures for obtaining compensation before bringing a

[Section] 1983 action.” Williamson County, 473 U.S. at

194 n.13 (emphasis omitted).

2. In describing the claim at issue as “premature”

and “not yet ripe,” Williamson County appeared to assume that an owner required to pursue a state compensation mechanism would be able to seek relief in federal

court if the state-court procedure was adequate but the

owner was dissatisfied with the result. That assumption

has proved incorrect. Under 28 U.S.C. 1738, state-court

judgments in inverse-condemnation actions have claimand issue-preclusive effect. San Remo Hotel, L.P. v.

City & County of San Francisco, 545 U.S. 323, 336

(2005) (San Remo). Accordingly, a property owner who

unsuccessfully seeks compensation in state court is generally barred from bringing a subsequent action in federal court. Id. at 346-348. Because of that result, critics

of the Williamson County rule, including several Members of this Court, have stated that it “all but guarantees that claimants will be unable to utilize the federal

4

courts to enforce the Fifth Amendment’s just compensation guarantee” against local governments. Id. at 351

(Rehnquist, C.J., concurring in judgment); see Arrigoni

Enters. v. Town of Durham, 136 S. Ct. 1409, 1411 (2016)

(Arrigoni) (Thomas, J., dissenting from denial of certiorari); Stop the Beach Renourishment, Inc. v. Florida

Dep’t of Envtl. Prot., 560 U.S. 702, 742 (2010) (Kennedy,

J., concurring in part and concurring in judgment). 2

B. The Present Controversy

In 2012, respondent the Township of Scott enacted

an ordinance regulating cemeteries, which the ordinance defines to include any area that has been used as

a burial place. Pet. App. A2. The ordinance provides

that an owner whose property contains a cemetery must

allow public access to the cemetery during daylight

hours. Ibid. It also provides that respondent’s agents

may enter any property in the Township to enforce the

ordinance. Id. at A4.

Petitioner owns land in the Township. Pet. App. B2.

Respondent has determined that her property contains

a cemetery, and petitioner no longer contests that determination. Id. at A4; see Pet. Br. 6 n.2. In 2013, respondent issued two notices advising petitioner that she was

violating the ordinance’s public-access requirement.

Pet. App. A4-A5.

The effect of the Williamson County rule is limited to claims

against local governments. “[T]he State and arms of the State * * *

have traditionally enjoyed Eleventh Amendment immunity,” and

Section 1983 does not abrogate that immunity because States as

such “are not subject to suit under [Section] 1983” at all. Howlett v.

Rose, 496 U.S. 356, 365 (1990). Suits for injunctive relief against

state officers may, however, be brought under Section 1983. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989).

2

5

In 2014, petitioner filed this Section 1983 suit in federal district court. Pet. App. B4. As relevant here, she

alleged that the ordinance results in a taking because it

creates easements allowing access to her property. Id.

at B4-B6. The court dismissed petitioner’s Fifth Amendment claim without prejudice, relying on Williamson

County. Id. at B1-B18.

The court of appeals affirmed. Pet. App. A1-A33. It

held that, under Williamson County, a property owner

bringing a federal suit to recover for an asserted taking

by a local government must first “seek and be denied just

compensation using the state’s procedures, provided

those procedures are adequate.” Id. at A20-A21. The

court explained that Pennsylvania law allows a property

owner to bring an inverse-condemnation action to obtain

compensation for a Fifth Amendment taking. Id. at A5.

The court noted that petitioner had neither availed herself of that procedure nor shown that it is inadequate. Id.

at A21. The court therefore affirmed the dismissal of her

Fifth Amendment claim “pending exhaustion of state-law

compensation remedies.” Id. at A32.

SUMMARY OF ARGUMENT

Owners whose property is taken by a local government have a Fifth Amendment right to receive just

compensation. Like other plaintiffs asserting constitutional claims against local governments, those owners

should be able to vindicate their federal rights by bringing actions in federal court. This Court should clarify or

overrule Williamson County to make clear that they

may do so.

I. Williamson County began by recognizing that

the Fifth Amendment does not require compensation to

be paid in advance of, or contemporaneously with, a tak-

6

ing. That recognition broke no new ground—to the contrary, this Court had already held for nearly a century

that the government may take property without paying

compensation in advance if it has provided the owner

with a reasonable, certain, and adequate mechanism for

obtaining just compensation. Congress and the Executive Branch have relied on that principle, and petitioner

does not challenge it here.

II. That settled Fifth Amendment principle does

not, however, bar an owner whose property is taken by

a local government from seeking just compensation in a

federal forum. The owner’s ability to do so depends not

on the meaning of the Takings Clause, but instead on a

statutory question: whether she has a cause of action to

enforce her Fifth Amendment rights that is within the

jurisdiction of the federal courts.

Williamson County answered that question by assuming without explanation that an owner whose property is taken by a local government lacks a cause of action under 42 U.S.C. 1983 unless the government violated the Fifth Amendment. Lower courts have extended Williamson County more broadly, treating it as

a ripeness rule that bars federal courts from entertaining any cause of action seeking compensation for a taking by a local government until after the owner has

sought compensation in state court.

That rule creates an unfortunate Catch-22: Until an

owner is denied compensation in state court, she cannot

bring a federal action because her claim is not “ripe.”

But as soon as a state court denies compensation, her

federal claim is barred because the state judgment precludes further litigation. Williamson County thus effectively closes the federal courts to local takings claimants.

That is a serious and unjustified anomaly, and this Court

7

should eliminate it by making clear that those claimants

may vindicate their Fifth Amendment rights in federal

court. The Court could accomplish that result in either

of two ways.

First, the Court could clarify that Williamson County

leaves takings claimants with a viable path to federal

court. It applies only to Section 1983 suits and poses no

obstacle if an owner invokes a different cause of action.

And if the Williamson County rule bars a Section 1983

action, it is because the owner has such a cause of action

available—usually, an inverse-condemnation action like

the one available to petitioner under Pennsylvania law.

That cause of action is, of course, a creature of state law.

But “even though state law creates a party’s cause of

action,” her claim may still be within the jurisdiction of

the federal district courts under 28 U.S.C. 1331 where,

as here, “a well-pleaded complaint establishe[s] that

[her] right to relief under state law requires resolution

of a substantial question of federal law.” City of Chicago v. International College of Surgeons, 522 U.S. 156,

164 (1997) (International College) (brackets and citation omitted).

Second, this Court could reconsider and reject Williamson County’s assumption about Section 1983. As

several Members of the Court have recognized, the

anomalies and confusion spawned by Williamson County

provide ample justification for reconsideration. So does

the fact that Williamson County relied on an unexplained assumption about the cause of action available

under Section 1983 rather than a full statutory analysis.

And a fresh examination of Section 1983’s text, history,

and practical operation—in combination with the unique

nature of the Takings Clause—indicate that Williamson

County was mistaken. Because the Fifth Amendment

8

gives an owner whose property is taken a right to just

compensation, she is properly regarded as having been

“depriv[ed] of a[] right[] * * * secured by the Constitution” within the meaning of Section 1983 if she has not

yet received that compensation. That remains true

even where the presence of an adequate state compensation mechanism means that the local government has

not violated the Fifth Amendment.

ARGUMENT

I. THE FAILURE TO PROVIDE CONTEMPORANEOUS

COMPENSATION FOR A TAKING DOES NOT VIOLATE

THE FIFTH AMENDMENT IF THE GOVERNMENT

HAS PROVIDED AN ADEQUATE MECHANISM FOR

OBTAINING JUST COMPENSATION

Williamson County recognized that the Fifth Amendment does not “require that just compensation be paid in

advance of, or contemporaneously with, [a] taking.” Williamson County Reg’l Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 194 (1985). Instead, “all that is required” for a lawful taking of property for public use “is

that a ‘reasonable, certain and adequate provision for

obtaining compensation’ exist at the time of the taking.”

Ibid. (citation omitted). Petitioner does not challenge

that fundamental Fifth Amendment principle, which is

reflected in nearly 130 years of this Court’s precedents.

A. This Court Has Long Held That The Fifth Amendment

Does Not Require That Compensation Be Paid Before

Or At The Same Time As A Taking

The Takings Clause, made applicable to the States and

their political subdivisions by the Fourteenth Amendment, provides that “private property [shall not] be

taken for public use, without just compensation.” U.S.

Const. Amend. V; see Penn Cent. Transp. Co. v. City of

9

New York, 438 U.S. 104, 122 (1978). “As its text makes

plain,” the Clause “ ‘does not prohibit the taking of private property, but instead places a condition on the exercise of that power.’ ” Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528, 536 (2005) (citation omitted). “In other

words, it ‘is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.’ ” Id. at 536-537 (citation omitted). The Fifth Amendment’s text is silent on

when the required compensation must be paid. This

Court, however, has long held that the government may

provide the owner with an adequate mechanism for obtaining compensation after a taking.

1. This Court first considered the issue in Cherokee

Nation v. Southern Kansas Railway Co., 135 U.S. 641

(1890). That case involved a federal statute authorizing

a railroad to condemn land belonging to the Cherokee

Nation. Id. at 642-648. The Nation argued that the statute violated the Fifth Amendment because it did not

“provide for compensation to be made to [the Nation]

before the [railroad] entered upon [its] lands.” Id. at

658. The Court disagreed, emphasizing that the Takings Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy

of the land to be taken.” Id. at 659. Instead, the Court

held that “the owner is entitled to reasonable, certain

and adequate provision for obtaining compensation before his occupancy is disturbed.” Ibid.

In the decades after Cherokee Nation, this Court repeatedly reaffirmed that the Takings Clause does not

require “that compensation should be made previous to

the taking” so long as “adequate means [are] provided

for a reasonably just and prompt ascertainment and

10

payment of the compensation.” Crozier v. Fried. Krupp

A.G., 224 U.S. 290, 306 (1912); see, e.g., Yearsley v. W.A.

Ross Constr. Co., 309 U.S. 18, 22 (1940); Hurley v.

Kincaid, 285 U.S. 95, 104 (1932); Dohany v. Rogers,

281 U.S. 362, 365 (1930); Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677 (1923); Albert Hanson Lumber

Co. v. United States, 261 U.S. 581, 587 (1923); Hays v.

Port of Seattle, 251 U.S. 233, 238 (1920); Bragg v.

Weaver, 251 U.S. 57, 62 (1919); Madisonville Traction

Co. v. Saint Bernard Mining Co., 196 U.S. 239, 251-252

(1905); Williams v. Parker, 188 U.S. 491, 502 (1903);

Backus v. Fort St. Union Depot Co., 169 U.S. 557, 568

(1898); Sweet v. Rechel, 159 U.S. 380, 400-402 (1895).

More than a century ago, the Court described that rule

as “[i]ndisputabl[e],” Crozier, 224 U.S. at 306, and “settled by repeated decisions,” Williams, 188 U.S. at 502.

2. This Court’s decisions also defined what qualifies

as a “reasonable, certain and adequate” provision for

compensation. In Cherokee Nation, the Court upheld a

procedure barring the railroad from entering the land

to be condemned until it had deposited with a court double the land’s value as determined by independent referees. 135 U.S. at 659. Such security may be necessary

when the eminent domain power is delegated to private

corporations, which may prove “insolven[t]” or otherwise unable to pay compensation ultimately awarded by

a court. Philip Nichols, The Power of Eminent Domain

§ 265, at 309 (1909) (Nichols). But similar measures are

not required when the “the public faith and credit are

pledged to a reasonably prompt ascertainment and payment” and “there is adequate provision for enforcing

the pledge.” Joslin Mfg., 262 U.S. at 677; see Nichols

§ 264, at 307-308. The Court thus repeatedly approved

11

statutes providing compensation by authorizing owners to

bring suits against governmental entities. For example:

•

The Court upheld two Massachusetts statutes

that provided compensation for the taking of land

“by giving the owners a right of action” against

the city of Boston. Williams, 188 U.S. at 502; see

Sweet, 159 U.S. at 406-407 (applying the Massachusetts Constitution).

•

The Court upheld, as making “full and adequate

provision for the exercise of the power of eminent

domain,” a statute specifying that the owner of a

patent taken by the government could “recover

reasonable compensation * * * by suit in the

Court of Claims.” Crozier, 224 U.S. at 302-303, 307.

•

The Court held that even if a Washington statute

constituted a taking, “there was adequate provision for compensation” in generally applicable

statutes that “entitle[d] any person having a claim

against the State to begin an action thereon” in

state court. Hays, 251 U.S. at 238.

•

The Court similarly held that even if the actions

of a federal contractor effected a taking, those

actions were “within the constitutional power”

because a suit under the Tucker Act “afford[ed]

a plain and adequate remedy” by which the

owner could seek just compensation. Yearsley,

309 U.S. at 20-21.

3. In the decades since Yearsley, this Court has repeatedly confirmed that a suit under the Tucker Act

provides a constitutionally sufficient mechanism for obtaining just compensation for takings by the federal

12

government. The Tucker Act waives sovereign immunity and grants the Court of Federal Claims jurisdiction

over claims seeking compensation for asserted takings

by the United States. 28 U.S.C. 1491(a); see 28 U.S.C.

1346(a)(2) (concurrent district-court jurisdiction over

claims seeking $10,000 or less). That generally applicable mechanism ensures that federal actions are not rendered invalid or subject to injunctions merely because

they may effect a taking.

Thus, for example, the Court rejected a Fifth

Amendment challenge to the Regional Rail Reorganization Act of 1973 because the Tucker Act would supply a

“reasonable, certain and adequate provision for obtaining compensation” if the statute effected a taking. Regional Rail Reorganization Act Cases, 419 U.S. 102,

124-125 (1974) (citation omitted); see id. at 125-136. The

Court has applied the same logic to many other federal

statutes. See, e.g., Preseault v. ICC, 494 U.S. 1, 11-17

(1990) (National Trails System Act Amendments of

1983); United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 129 n.6 (1985) (Clean Water Act); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1019 (1984)

(Federal Insecticide, Fungicide, and Rondenticide Act);

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264, 297 & n.40 (1981) (Surface Mining

Control and Reclamation Act); Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 94 n.39 (1978)

(Price-Anderson Act); see also Dames & Moore v. Regan, 453 U.S. 654, 688-689 (1981) (Executive Order).

Each of those decisions rested on the premise, reaffirmed in Williamson County, that “the availability of a

suit for compensation against the sovereign will defeat

13

a contention that the action is unconstitutional as a violation of the Fifth Amendment.” Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 697 n.18 (1949).

B. This Court’s Longstanding Interpretation Is Consistent

With The Text Of The Takings Clause And With Historical Evidence

This Court’s longstanding interpretation of the Takings Clause is consistent with the Clause’s text, with

available evidence of contemporaneous understanding,

and with early decisions interpreting parallel state constitutional provisions.

1. As this Court recognized in Cherokee Nation, the

text of the Fifth Amendment “does not provide or require that compensation shall be actually paid in advance.” 135 U.S. at 659. Nor could such a requirement

be implied from the use of the term “just compensation.” To the contrary, “compensation” naturally includes a payment made after the event being compensated. 3 A property owner who receives a post-taking

award—which must include an adjustment for the delay

in payment, see Jacobs v. United States, 290 U.S. 13, 17

(1933)—thus receives the “just compensation” the Fifth

Amendment requires for a lawful taking.

That understanding is reinforced by the marked contrast between the Fifth Amendment and later state provisions expressly specifying that property could not be

taken—or, in some cases, could not be taken by non-

See 1 Samuel Johnson, A Dictionary of the English Language

(2d ed. 1755) (“Recompen[s]e; [s]omething equivalent; amends.”);

1 Noah Webster, An American Dictionary of the English Language

344 (1841) (“That which supplies the place of something else, or

makes good a deficiency.”).

3

14

state entities—“without just compensation being previously made.” Ky. Const. Art. 12, § 12 (1792) (emphasis

added); see, e.g., Ind. Const. Art. 1, § 21 (1851) (“first

assessed and tendered”); La. Const. Tit. VI, Art. 109

(1845) (“previously made”); Md. Const. Art. III, § 46

(1851) (“first paid or tendered”); see also Blanchard v.

City of Kansas, 16 F. 444, 444-445 (C.C.W.D. Mo. 1883)

(describing these state provisions).

2. This Court’s interpretation is consistent with the

limited available evidence about the contemporaneous

understanding of the Takings Clause. In construing the

Clause, this Court has looked to St. George Tucker, “the

author of the first treatise on the Constitution.” Horne

v. Department of Agric., 135 S. Ct. 2419, 2426 (2015). In

his view, the Clause was “probably intended to restrain

the arbitrary and oppressive mode of obtaining supplies

for the army, and other public uses, by impressment, as

was too frequently practised during the revolutionary

war, without any compensation whatever.” 1 St. George

Tucker, Blackstone’s Commentaries App. 305-306 (1803)

(emphasis added). A requirement to provide an adequate means of obtaining post-taking compensation is

consistent with that goal.

Similarly, James Madison—the author of the Takings Clause—referred to the type of protection provided by the Clause as ensuring that private property

shall not “be taken directly, even for public use, without

indemnification to the owner.” James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 4 Letters

and Other Writings of James Madison 479 (R.

Worthington ed. 1884) (emphasis altered). “Indemnification” naturally connotes a post-taking payment.

3. Finally, early interpretations of similar language

in state constitutions indicate that the Takings Clause

15

does not require pre-taking compensation. Beginning

in the early 1800s, state courts generally held that provisions requiring compensation for takings, without

more, did not require “compensation before the actual

appropriation.” Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 560

(1868); see id. at 560 n.2 (collecting cases); see also, e.g.,

Henry E. Mills, A Treatise on the Law of Eminent Domain § 124, at 156-157 (1879). 4

In 1815, for example, the Massachusetts Supreme

Judicial Court upheld a statute authorizing the taking

of property for a canal and providing for “proceedings

to recover damages.” Stevens v. Proprietors of the Middlesex Canal, 12 Mass. 466, 468 (1815). And in 1838, the

Indiana Supreme Court upheld a similar statute authorizing the taking of land for a road “without previous

compensation.” Rubottom v. M’Clure, 4 Blackf. 505, 508

(1838). The court observed that “the laws of several

other states * * * abound with instances of similar legislation,” and that “the constitutionality of these laws

has never been questioned.” Ibid.

C. Congress And The Executive Branch Have Relied On

This Court’s Longstanding Interpretation

Congress and the Executive Branch have relied on

this Court’s repeated holdings “that so long as compensation is available for those whose property is in fact

taken, the governmental action is not unconstitutional.”

Another treatise disagreed with that view and cited “some” decisions reaching the opposite result. 2 John Lewis, A Treatise on the

Law of Eminent Domain in the United States § 678, at 1162 (3d ed.

1909). But the cited decisions were issued after 1845, and even then

the treatise acknowledged that “in most States it is held that the making of compensation need not precede” the taking. Id. at 1162-1163.

4

16

Riverside Bayview Homes, 474 U.S. at 128. Because a

suit under the Tucker Act is an adequate mechanism for

obtaining compensation, Congress can be assured that

“the possibility that the application of a regulatory program may in some instances result in [a] taking” will not

invalidate the program or result in an injunction. Ibid.

And for the same reason, Executive Branch officials

may faithfully implement Congress’s directives without

fear that they will later be held to have violated the

Fifth Amendment.

That assurance is vital because of “the nearly inf inite

variety of ways in which government actions or regulations can affect property interests.” Arkansas Game &

Fish Comm’n v. United States, 568 U.S. 23, 31 (2012).

The Court has recognized that, under its modern takings doctrine, “no magic formula enables a court to

judge, in every case, whether a given government interference with property is a taking.” Ibid. For the same

reason, it would be impossible to provide compensation

in advance for all federal actions that might ultimately

be found to be takings. The United States therefore has

a substantial interest in the reaffirmation of the nearly

130 years of precedent holding that the Fifth Amendment does not “require that just compensation be paid

in advance of, or contemporaneously with, [a] taking.”

Williamson County, 473 U.S. at 194. 5

As a matter of policy, Congress has directed that the federal

government should take real property through “formal condemnation proceedings” where possible. 42 U.S.C. 4651(8); see 42 U.S.C.

4602(a). But outside the context of direct appropriations and certain

physical invasions, the extent to which a given action will result in a

taking is often unclear or contested.

5

17

II. THE EXISTENCE OF AN ADEQUATE STATE-LAW

MECHANISM FOR OBTAINING JUST COMPENSATION

FOR A TAKING BY A LOCAL GOVERNMENT DOES NOT

PREVENT THE OWNER FROM VINDICATING HER

FIFTH AMENDMENT RIGHTS IN FEDERAL COURT

Although Williamson County correctly recognized

that a taking by a local government does not violate the

Fifth Amendment if state law provides an adequate

mechanism for obtaining just compensation, that constitutional principle does not bar a property owner from

enforcing her Fifth Amendment rights by bringing an

action in a federal forum. The owner’s ability to do so

turns not on the Takings Clause, but on a statutory

question: whether she has a cause of action to obtain

just compensation that is within the jurisdiction of the

federal district courts.

Williamson County answered that question by assuming that an owner whose property is taken by a local

government lacks a cause of action under Section 1983

unless the government violated the Fifth Amendment.

But the Court did not clearly identify or analyze that

statutory issue. And because the Court articulated its

holding in ripeness terms, lower courts have generally

treated Williamson County not as an interpretation of

Section 1983, but instead as a ripeness rule that bars

federal courts from entertaining any action seeking

compensation for a local-government taking unless the

owner first seeks compensation in state court.

That understanding has created a well-recognized

Catch-22. Until a property owner is denied compensation by a state court, she cannot bring a federal action

because her claim is not “ripe.” But once a state court

denies compensation, the owner still cannot bring a fed-

18

eral action because the state judgment precludes further litigation. San Remo Hotel, L.P. v. City & County

of San Francisco, 545 U.S. 323, 344-348 (2005). The

very event that ripens the claim simultaneously bars it.

And that means that for most local takings claimants,

Williamson County has closed the federal courthouse

doors altogether. Id. at 351 (Rehnquist, C.J., concurring in judgment).

That is a serious and unwarranted anomaly. “Plaintiffs alleging violations of other enumerated constitutional rights” by local governments “ordinarily may do

so in federal court.” Arrigoni Enters. v. Town of

Durham, 136 S. Ct. 1409, 1411 (2016) (Thomas, J., dissenting from denial of certiorari). “[T]here is ‘no reason

why the Takings Clause of the Fifth Amendment, as

much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to

the status of a poor relation.’ ” Ibid. (quoting Dolan v.

City of Tigard, 512 U.S. 374, 392 (1994)).

This Court should therefore make clear that local

takings claimants may vindicate their Fifth Amendment rights in a federal forum. The Court could do so

in either of two ways. First, it could clarify that, regardless of Williamson County’s understanding of Section

1983, an owner who asserts a right to compensation under the Fifth Amendment may bring a state inversecondemnation action in federal district court under the

grant of federal-question jurisdiction in 28 U.S.C. 1331.

Second, the Court could revisit Williamson County’s

unexplained interpretation of Section 1983 and hold

that the statute provides a means of enforcing an

owner’s Fifth Amendment right to just compensation

even in the absence of a constitutional violation.

19

A. Williamson County Does Not Prevent Local Takings

Claimants From Seeking Just Compensation In Federal

Court Under Their State-Law Causes Of Action

Properly understood, Williamson County rests on

the scope of the cause of action afforded by Section

1983. It thus does not apply when an owner invokes a

different cause of action to vindicate her Fifth Amendment rights. And if Williamson County prevents an

owner from bringing a Section 1983 suit, it is because

she has such an alternative cause of action available: an

inverse-condemnation action or another “adequate

[state-law] procedure for seeking just compensation.”

473 U.S. at 195. That cause of action is created by state

law. But a state inverse-condemnation action asserting

an owner’s Fifth Amendment rights “aris[es] under”

federal law within the meaning of 28 U.S.C. 1331.

1. Williamson County rested on an understanding of

the cause of action in Section 1983

This Court’s opinion in Williamson County stated

that the claim at issue there was “premature” and “not

yet ripe.” 473 U.S. at 194, 197. Understandably, therefore, the Williamson County rule is often described as

a matter of “ripeness.” E.g., Horne v. Department of

Agric., 569 U.S. 513, 526 (2013) (citation omitted). But

traditional ripeness principles do not support the rule.

Instead, Williamson County’s logic indicates—and the

Court has since confirmed—that it rests on an understanding of the cause of action in Section 1983.

a. Ripeness doctrine is “drawn both from Article III

limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” National

Park Hospitality Ass’n v. Department of the Interior,

20

538 U.S. 803, 808 (2003) (citation omitted). The Williamson County rule should not be understood as a matter of either constitutional or prudential ripeness.

As to the Constitution, this Court has correctly recognized that an Article III “ ‘Case’ or ‘Controversy’ exists once the government has taken private property

without paying for it.” Horne, 569 U.S. at 526 n.6. The

Williamson County rule thus “does not affect the jurisdiction of the federal court[s].” Ibid.

As to prudential concerns, this Court has stated that

prudential ripeness turns on “whether the factual record [i]s sufficiently developed” for review and “whether

hardship to the parties would result if judicial review is

denied.” Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334, 2347 (2014). But Williamson County did not analyze those traditional considerations, and they do not

support the Williamson County rule. The mere availability of a state-court remedy does not undermine either

the fitness of a constitutional claim for judicial review

or the hardship to the plaintiff if review is denied. Cf.

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“A plaintiff * * * may invoke [Section] 1983 regardless of any

state-tort remedy that might be available.”).

b. Rather than ripeness, Williamson County rested

on the Court’s assumption that a Section 1983 action is

not available unless the plaintiff has suffered a constitutional violation. That is why the Court began with the

premise that the government has not violated the Takings Clause if it has provided “reasonable, certain and

adequate provision for obtaining compensation.” Williamson County, 473 U.S. at 194 (citations omitted). It

is also why the Court stated that a property owner who

has access to such an adequate mechanism “cannot

claim a violation” of the Takings Clause. Id. at 195. And

21

it is why the Court stated that the fact that “no constitutional violation occurs until just compensation has

been denied” means that an owner must “utilize procedures for obtaining compensation before bringing a [Section] 1983 action.” Id. at 194 n.13 (emphasis added).

This Court confirmed that understanding in City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.

687 (1999). There, the Court recognized that a California landowner alleging a regulatory taking by a city

“was entitled to proceed in federal court under [Section]

1983” notwithstanding Williamson County because (at

the time) “California did not provide a compensatory

remedy for temporary regulatory takings.” Id. at 710.

The Court explained that “[h]ad the city paid for the

property or had an adequate postdeprivation remedy

been available, [the landowner] would have suffered no

constitutional injury from the taking alone.” Ibid. The

Court therefore stated that the landowner’s “statutory

action” under Section 1983 “did not accrue until it was

denied just compensation.” Ibid. And the Court then

explicitly formulated the Williamson County rule as

providing that “[a] federal court * * * cannot entertain

a takings claim under [Section] 1983 unless or until the

complaining landowner has been denied an adequate

postdeprivation remedy.” Id. at 721. City of Monterey

thus confirms that Williamson County is not about

ripeness, “but rather * * * whether the claim is cognizable under [Section] 1983 at all.” Heck v. Humphrey,

512 U.S. 477, 483 (1994).

22

2. Owners asserting a Fifth Amendment right to compensation may bring their state inverse-condemnation

actions in federal court under Section 1331

Even if an owner’s Section 1983 suit is barred by Williamson County, she may vindicate her Fifth Amendment rights by bringing her state inverse-condemnation

action in federal district court under Section 1331.

a. “The phrase ‘inverse condemnation’ generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a ‘taking’ of his property under the Fifth

Amendment, even though formal condemnation proceedings * * * have not been instituted.” San Diego

Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 638

n.2 (1981) (San Diego) (Brennan, J., dissenting) (citation omitted); see United States v. Clarke, 445 U.S. 253,

257 (1980). If the court finds that a taking has occurred,

the result is an award of just compensation and a transfer of the relevant property interest to the government,

which “becomes henceforth the full owner.” United

States v. Lynah, 188 U.S. 445, 471 (1903). Like a formal

condemnation proceeding, therefore, a successful inversecondemnation action results in a lawful exchange in

which the government acquires property for public use

and the landowner receives just compensation. See

Kirby Forest Indus., Inc. v. United States, 467 U.S. 1,

5-6 (1984); United States v. Dow, 357 U.S. 17, 21 (1958).

Like most other States, Pennsylvania has recognized

an inverse-condemnation cause of action. Under the

Pennsylvania Eminent Domain Code, 26 Pa. Cons. Stat.

Ann. §§ 101 et seq. (West 2009), a property owner who

believes that her property has been taken may file an

inverse-condemnation petition. Id. § 502(c). A property

owner may invoke the inverse-condemnation procedure

23

“to recover compensation if there has been a taking of

land [under] the Fifth Amendment of the United States

Constitution or Article 1, § 10 of the Pennsylvania Constitution.” Commonwealth v. Rogers, 634 A.2d 245, 254

n.5 (Pa. Super. Ct. 1993).

If a property owner brings an inverse-condemnation

action, the court must “determine whether a condemnation has occurred.” 26 Pa. Cons. Stat. Ann. § 502(c)(2)

(West. 2009). If the court finds a taking and awards

compensation, it must “enter an order specifying any

property interest which has been condemned and the

date of the condemnation.” Id. § 502(c)(3). The governmental defendant then files the order “in the office of

the recorder of deeds for the county in which the property is located.” Id. § 502(c)(4).

b. Under 28 U.S.C. 1331, the federal district courts

“have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

States.” That provision is most often invoked “by plaintiffs pleading a cause of action created by federal law.”

Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 312 (2005) (Grable). But this Court

has “recognized for nearly 100 years that in certain

cases federal-question jurisdiction will lie over state-law

claims that implicate significant federal issues.” Ibid.

That longstanding construction “captures the commonsense notion that a federal court ought to be able to hear

claims recognized under state law that nonetheless turn

on substantial questions of federal law, and thus justify

resort to the experience, solicitude, and hope of uniformity that a federal forum offers.” Ibid.

This Court has indicated that a state cause of action

may be brought under Section 1331 if “a federal issue

24

is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court

without disrupting the federal-state balance approved

by Congress.” Gunn v. Minton, 568 U.S. 251, 258

(2013) (citing Grable, 545 U.S. at 314). A state inversecondemnation action based on the Fifth Amendment

will ordinarily satisfy those requirements.

First, such a claim necessarily raises a federal question because it rests on the assertion that the property

owner has been subjected to “a ‘taking’ of his property

under the Fifth Amendment.” San Diego, 450 U.S. at

638 n.2 (Brennan, J., dissenting).

Second, in the typical inverse-condemnation case,

the governmental defendant denies the owner’s contentions about the existence or extent of the asserted Fifth

Amendment taking. “This is just the sort of ‘dispute respecting the effect of federal law’ that Grable envisioned.” Gunn, 568 U.S. at 259 (brackets, citations, and

ellipses omitted).

Third, disputed questions under the Takings Clause

qualify as “substantial in the relevant sense.” Gunn,

568 U.S. at 260. The Court has previously recognized

that similar questions of federal constitutional law, including takings claims, are of sufficient importance to

justify the exercise of federal jurisdiction. See, e.g.,

City of Chicago v. International College of Surgeons,

522 U.S. 156, 164 (1997); Smith v. Kansas City Title &

Trust Co., 255 U.S. 180, 201 (1921). And the proposition

that takings claims should not be disfavored among constitutional claims with respect to access to federal court,

see, e.g., Arrigoni, 136 S. Ct. at 1410-1411 (Thomas, J.,

dissenting from denial of certiorari), furnishes particular reason for regarding such claims as presenting “substantial” federal questions.

25

Finally, while allowing state inverse-condemnation

actions to be brought in federal court might “materially

affect * * * the normal currents of litigation,” Grable,

545 U.S. at 319, it would not upset “the appropriate ‘balance of federal and state judicial responsibilities,’ ”

Gunn, 568 U.S. at 264 (quoting Grable, 545 U.S. at 314).

Instead, it would restore that balance by ensuring that

takings claimants, like other plaintiffs with constitutional claims against local governments, can vindicate

their federal rights in a federal forum.

c. This Court’s decision in International College

confirms that state inverse-condemnation actions relying on the Fifth Amendment may be brought in federal

court under Section 1331. In that case, a property

owner filed state-court actions seeking review of decisions by the Chicago Landmarks Commission under the

Illinois Administrative Review Law. 522 U.S. at 159-160.

Among other things, the owner alleged that Chicago’s

landmark ordinances “effect[ed] a taking of property

without just compensation under the Fifth and Fourteenth Amendments.” Id. at 160. The Commission removed the case to federal district court. Id. at 161.

This Court held that the case was properly removed

because it “could have been filed in federal court” under

Section 1331. International College, 522 U.S. at 163.

Invoking the precedents later synthesized in Grable

and Gunn, the Court explained that “even though state

law creates a party’s cause of action, its case might still

‘arise under’ the laws of the United States if a wellpleaded complaint establishe[s] that its right to relief

under state law requires resolution of a substantial

question of federal law.” Id. at 164 (brackets omitted).

And the Court concluded that the owner’s “federal

constitutional claims”—including its takings claims—

26

“unquestionably fit within this rule.” Ibid. The same

analysis applies to a state inverse-condemnation action

in which the owner asserts a right to just compensation

under the Fifth Amendment. 6

d. If this Court holds that state inverse-condemnation

actions may be brought under Section 1331, it will make

clear that local takings claimants have a viable path to

federal court regardless of the content of state law. If

the state provides an adequate inverse-condemnation

cause of action for raising Fifth Amendment claims, the

owner may bring that action in federal court under Section 1331. If state law does not provide an adequate

mechanism, then Williamson County does not apply

even on its own terms and the owner is “entitled to proceed in federal court under [Section] 1983.” City of

Monterey, 526 U.S. at 710. 7 And if there is a question

State inverse-condemnation actions may involve specialized valuation procedures. See 26 Pa. Cons. Stat. Ann. §§ 502-515 (West

2009). But an established body of law governs the translation of such

procedures into federal court, because it has long been settled that

formal condemnation proceedings may be removed to federal court

(for example, when the parties are diverse). See, e.g., Boom Co. v.

Patterson, 98 U.S. 403, 406-407 (1878); see also Fed. R. Civ. P. 71.1(k).

7

That situation would exist if, for example, state law “did not provide a compensatory remedy” for the type of taking alleged, City of

Monterey, 526 U.S. at 710, or if the relevant governmental body

were “not subject to inverse condemnation proceedings,” Suitum v.

Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 n.8 (1997). It would

also exist if the state cause of action did not entitle the owner to

assert a Fifth Amendment claim, because owners are “not required

to resort to piecemeal litigation” to recover just compensation.

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 350

n.7 (1986); see, e.g., Asociación De Subscripción Conjunta Del Seguro De Responsibilidad Obligatorio v. Flores Galarza, 484 F.3d 1,

16-17 (1st Cir. 2007).

6

27

about the adequacy of the state-law mechanism, a property owner may proceed in the alternative, invoking

both the state cause of action and Section 1983 in her

federal complaint.

Clarifying that the Williamson County rule rests on

an interpretation of Section 1983 would also resolve the

confusion in the lower courts about the rule’s purported

“jurisdictional” status. See Arrigoni, 136 S. Ct. at 14111412 (Thomas, J., dissenting from denial of certiorari).

And it would eliminate the uncertainty about whether

the rule applies to actions originally filed in state court

and the associated opportunities for “gamesmanship” if

such actions are removed to federal court. Id. at 1411;

see Pet. Br. 30-33. Because Williamson County is an

interpretation of Section 1983, it applies to all Section

1983 suits asserting just-compensation claims, whether

they are brought in federal or state court. But for the

same reason, it does not apply to other suits.

e. Here, it appears to be undisputed that petitioner

has an inverse-condemnation cause of action under

Pennsylvania law that would allow her to assert her

Fifth Amendment claim. Pet. App. A5, A21. Thus far,

the case has been litigated on the assumption that she

could not bring that cause of action in federal district

court. If this Court rejects that assumption, it should

vacate the judgment below and remand to allow petitioner to amend her complaint to invoke her Pennsylvania inverse-condemnation cause of action. 8

The fact that the Takings Clause provides a right to compensation

does not resolve the question whether it also creates a cause of action

to recover that compensation that can be pressed in federal court. Cf.

Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001). In First English Evangelical Lutheran Church of Glendale v. County of Los An8

28

B. This Court Also Could Revisit And Reject Williamson

County’s Understanding Of Section 1983

This Court granted review to decide whether to “reconsider” the Williamson County rule. Pet. i. The

Court ordinarily requires a special justification before

revisiting one of its precedents. As several Members of

the Court have already recognized, however, the confusion and anomalies spawned by the Williamson County

rule furnish ample justification for reconsidering it.

And Williamson County’s unexplained assumption

about the scope of Section 1983 was incorrect.

1. There are special justifications for reconsidering

Williamson County’s understanding of Section 1983

This Court ordinarily requires some “special justification” before reconsidering one of its decisions. Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct.

2398, 2407 (2014) (citation omitted). The Court has also

recognized that “stare decisis has special force in respect to statutory interpretation.” Id. at 2411 (citations

and internal quotation marks omitted). But even in the

statutory context, stare decisis is not “an inexorable

command.” Hohn v. United States, 524 U.S. 236, 251

(1998) (citation omitted). And here, several factors provide the requisite special justification for reconsidering

Williamson County’s understanding of Section 1983.

geles, 482 U.S. 304 (1987), this Court held that California had erroneously denied compensation for a particular type of taking under its

inverse-condemnation cause of action. Id. at 314-318. Here, in contrast, Pennsylvania has provided a statutory cause of action that allows owners to recover the full measure of compensation required by

the Fifth Amendment, and owners who wish to do so may bring that

cause of action in federal court under Section 1331.

29

First, the Williamson County rule—at least as understood by the lower courts—has “downgraded the protection afforded by the Takings Clause to second-class

status” by effectively excluding an entire class of takings

claimants from federal court. Arrigoni, 136 S. Ct. at

1411 (Thomas, J., dissenting from denial of certiorari).

That is a “real anomal[y], justifying [the Court’s] revisiting the issue.” San Remo, 545 U.S. at 351 (Rehnquist,

C.J., concurring in judgment). And that is particularly

true because Williamson County itself did not appear

to recognize that it would have that effect. See pp. 2-3,

supra.

Second, the Williamson County rule has spawned

“confusion in the lower courts.” Arrigoni, 136 S. Ct. at

1411 (Thomas, J., dissenting from denial of certiorari).

Among other things, the courts of appeals have reached

different conclusions about whether the rule is jurisdictional and whether it should apply to claims removed

from state court. Id. at 1411-1412. The fact that a precedent has proved to be “a positive detriment to coherence and consistency in the law” is a “traditional justification for overruling [it].” Patterson v. McLean Credit

Union, 491 U.S. 164, 173 (1989).

Third, “the affirmative case” for Williamson County’s

understanding of Section 1983 “has yet to be made”—

and certainly was not made in Williamson County itself. San Remo, 545 U.S. at 351 (Rehnquist, C.J., concurring in judgment). As we have explained, Williamson County began with an understanding of the Fifth

Amendment that was correct and grounded in nearly a

century of precedent. See Part I.A, supra. But the

Court then simply assumed that a property owner lacks

a cause of action under Section 1983 unless the local

government has violated the Fifth Amendment. See

30

Part II.A.1, supra. The Court did not explain the basis

for that assumption, much less attempt to ground it in

Section 1983’s text or history. 9

2. Williamson County’s understanding of Section 1983

is incorrect

Because there is ample justification for revisiting the

issue, this Court could ensure a federal forum for local

takings claimants by considering afresh whether Section 1983 provides a cause of action to an owner who has

not yet received just compensation for a taking by a local government, but who has available an adequate statelaw mechanism for obtaining compensation. Section

1983’s text and history—in combination with the unique

nature of the Takings Clause—indicate that it does.

a. Section 1983 provides a cause of action to a party

who is “subjected * * * to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws” by a person acting under color of state law.

Most constitutional rights confer a right to be free from

a type of unlawful government conduct—for example,

unreasonable searches and seizures. In that typical context, an individual is “depriv[ed] of [a] right[]” secured

by the Constitution within the meaning of Section 1983

only if a state actor has acted illegally by violating the

relevant constitutional provision. This Court has thus

often stated that Section 1983 actions “sound in tort,”

9

Petitioner errs in contending (Br. 48) that stare decisis has less

force here because the Williamson County rule is “constitutional”

or “procedural.” As explained, the rule is not constitutional—it does

not, for example, preclude Congress from allowing just compensation claims to be brought in federal court. Nor does it govern the

procedure by which cases are adjudicated. Instead, it rests on an

understanding of Section 1983’s scope. See Part II.A.1, supra.

31

City of Monterey, 526 U.S. at 709, or provide a remedy

for constitutional “violations,” Howlett v. Rose, 496 U.S.

356, 358 (1990). When the government violates the Takings Clause—by, for example, taking property without

providing any mechanism for obtaining compensation—

Section 1983 functions just as it ordinarily does: as a

remedy for wrongful conduct that violated the Constitution. See City of Monterey, 526 U.S. at 710.

Unlike most constitutional provisions, however, the

Takings Clause does not merely guarantee a right to be

free from specified unlawful government action. It also

confers a right “to secure compensation” for lawful takings. First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 315

(1987). And although the government is not required to

pay the compensation at the time of the taking, the

owner’s Fifth Amendment right to compensation vests

immediately. Id. at 317-320. Indeed, the very definition

of a constitutionally sufficient post-taking mechanism is

that it provides the owner with a “reasonable, certain

and adequate provision” for vindicating that Fifth

Amendment right. Cherokee Nation, 135 U.S. at 659;

see Part I.A, supra.

Accordingly, an owner whose property is taken but

who has not yet received the constitutionally required

compensation can be understood to have been “depriv[ed]

of [a] right[] * * * secured by the Constitution.”

42 U.S.C. 1983. And that remains true even if the taking

did not violate the Fifth Amendment because the owner

has been provided with an adequate mechanism for obtaining compensation. In the unique context of the Takings Clause, Section 1983 is not limited to redressing or

32

preventing constitutional violations—instead, it also affords an owner an alternative means of enforcing her

constitutional right to just compensation.

b. That understanding is supported by Section

1983’s historical context and practical operation. Section 1983 was originally enacted in 1871, during Reconstruction. Patsy v. Board of Regents, 457 U.S. 496, 502503 (1982). Congress intended the statute to “assign[]

to the federal courts a paramount role in protecting constitutional rights.” Id. at 503. As this Court has repeatedly recognized, Congress took that step in substantial

part because it “believed that federal courts would be

less susceptible to local prejudice and to the existing defects in the factfinding processes of state courts.” Id. at

506. Section 1983 was, in other words, “an attempt to

remedy the state courts’ failure to secure federal rights.”

Mitchum v. Foster, 407 U.S. 225, 241 (1972).

Partly for this reason, Section 1983 does not generally require exhaustion of state remedies as a prerequisite to suit. Patsy, 457 U.S. at 507. Instead, Congress

understood that it would “provide dual or concurrent forums in the state and federal system, enabling the plaintiff to choose the forum in which to seek relief.” Id. at

506. Section 1983 should not be construed to require a

different result for owners seeking to enforce their

Fifth Amendment right to just compensation. They too

are entitled to the federal forum that Congress intended to provide for federal constitutional claims

against state actors.

c. If this Court agrees that Section 1983 allows an

owner to bring an action against a local government to

recover compensation for a taking even when an adequate state-law mechanism is available, it should make

clear that its holding does not mean that the individual

33

officials responsible for such a lawful taking are potentially subject to personal liability. The Court has often

recognized that Section 1983 requires it to craft “the elements of, and rules associated with, an action seeking

damages” for a deprivation of constitutional rights.

Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017). And

the Court has also observed that those rules “should be

tailored to the interests protected by the particular right

in question.” Carey v. Piphus, 435 U.S. 247, 259 (1978).

Where the “deprivation” giving rise to a Section 1983

action is the fact that the property owner has not yet

received compensation for a lawful taking by a local government, she is only entitled to recover compensation

from the government that owes it. She has no right to

recover from individual officials, because they do not

owe compensation for property lawfully taken by the

government. It would thus be inappropriate to interpret Section 1983 to impose personal financial liability

on those officials. Cf. Lewis v. Clarke, 137 S. Ct. 1285,

1292 (2017) (explaining that suits against governmental

officials in which “[t]he real party in interest is the government” are “only nominally against the official and in

fact against the official’s office and thus the [government] itself ”); Hartman v. Moore, 547 U.S. 250, 261-265

(2006) (limiting liability against certain officers where

injury ultimately resulted from actions of other officers). The officials responsible for a lawful taking therefore should not be regarded as “person[s]” who have

“subject[ed], or caused to be subjected,” the property

34

owner to the deprivation of her Fifth Amendment rights

within the meaning of Section 1983. 10

CONCLUSION

The judgment of the court of appeals should be

vacated and the case remanded for further proceedings.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY H. WOOD

CHAD A. READLER

Acting Assistant Attorneys

General

JEFFREY B. WALL

Principal Deputy Solicitor

General

ERIC GRANT

HASHIM M. MOOPPAN

Deputy Assistant Attorneys

General

BRIAN H. FLETCHER

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

BRIAN C. TOTH

Attorneys

JUNE 2018

For similar reasons, a lawful taking would not give rise to a violation of 18 U.S.C. 242, a criminal statute that uses language paralleling Section 1983 to make it a misdemeanor to “willfully” subject

a person to a deprivation of constitutional rights.

10

APPENDIX

1.

U.S. Const. Amend. V provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

2.

18 U.S.C. 242 provides:

Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in

any State, Territory, Commonwealth, Possession, or

District to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or

laws of the United States, or to different punishments,

pains, or penalties, on account of such person being an

alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or

both; and if bodily injury results from the acts committed

in violation of this section or if such acts include the use,

attempted use, or threatened use of a dangerous weapon,

explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death

(1a)

2a

results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to

kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall

be fined under this title, or imprisoned for any term of

years or for life, or both, or may be sentenced to death.

3.

28 U.S.C. 1331 provides:

Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

4.

42 U.S.C. 1983 provides:

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of

this section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be a

statute of the District of Columbia.

3a

5.

26 Pa. Cons. Stat. Ann. § 502 (West 2009) provides:

Petition for appointment of viewers

(a)

Contents of petition.—A condemnor, condemnee

or displaced person may file a petition requesting the

appointment of viewers, setting forth:

(1) A caption designating the condemnee or displaced person as the plaintiff and the condemnor as

the defendant.

(2) The date of the filing of the declaration of taking and whether any preliminary objections have been

filed and remain undisposed of.

(3) In the case of a petition of a condemnee or

displaced person, the name of the condemnor.

(4) The names and addresses of all condemnees,

displaced persons and mortgagees known to the petitioner to have an interest in the property acquired

and the nature of their interest.

(5)

A brief description of the property acquired.

(6) A request for the appointment of viewers to

ascertain just compensation.

(b)

Property included in condemnor’s petition.—The

condemnor may include in its petition any or all of the

property included in the declaration of taking.

(c) Condemnation where no declaration of taking has

been filed.—

(1) An owner of a property interest who asserts

that the owner’s property interest has been condemned without the filing of a declaration of taking

may file a petition for the appointment of viewers

4a

substantially in the form provided for in subsection

(a) setting forth the factual basis of the petition.

(2) The court shall determine whether a condemnation has occurred, and, if the court determines that

a condemnation has occurred, the court shall determine the condemnation date and the extent and nature of any property interest condemned.

(3) The court shall enter an order specifying any

property interest which has been condemned and the

date of the condemnation.

(4) A copy of the order and any modification shall

be filed by the condemnor in the office of the recorder

of deeds of the county in which the property is located and shall be indexed in the deed indices showing the condemnee as grantor and the condemnor as

grantee.

(d) Separate proceedings.—The court, in furtherance

of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order separate viewers’

proceedings or trial when more than one property has

been included in the petition.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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