Amicus Curiae Brief — Rose Mary Knick, Petitioner v. Township of Scott, Pennsylvania, et al.
Supreme Court briefJun 5, 2018
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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.