Petition for Writ of Certiorari — Richard Devillier, et al., Petitioners v. Texas

No. __________

In the Supreme Court of the United States

RICHARD DEVILLIER, ET AL.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

TRACE MITCHELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

tmitchell@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, TX 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

i

QUESTION PRESENTED

In First English Evangelical Lutheran Church

v. County of Los Angeles, this Court recognized that

the Fifth Amendment’s Takings Clause was “selfexecuting” and that “[s]tatutory recognition was not

necessary” for claims for just compensation because

they “are grounded in the Constitution itself[.]” 482

U.S. 304, 315 (1987). Since First English, several

state courts of last resort have held that the selfexecuting nature of the Takings Clause requires them

to entertain claims directly under the Clause without

the need for statutory authorization. Two federal

Circuits, the Fifth and the Ninth, disagree and have

held that claims for just compensation are only

available if they are legislatively authorized. The

question presented is:

May a person whose property is taken without

compensation seek redress under the self-executing

Takings Clause even if the legislature has not

affirmatively provided them with a cause of action?

ii

PARTIES TO THE PROCEEDINGS BELOW

This case arises out of four separate state-court

actions that were removed to the Southern District of

Texas and consolidated. The plaintiffs in the

consolidated case were: Richard Devillier; Wendy

Devillier; Steven Devillier; Rhonda Devillier; David

McBride; Angela McBride; Bert Hargraves; Barney

Threadgill; Crystal Threadgill; Barbara Devillier;

David Ray; Gary Herman; Rhonda Glanzer; Chris

Barrow; Darla Barrow; Dennis Dugat; Laurence

Barron; Deanette Lemon; Jill White; Beverly Kiker;

Yale Devillier (individually and as personal

representative of the Estate of Kyle H. Devillier);

Charles Monroe; Jacob Fregia; Angela Fregia; Jerry

Devillier; Mary Devillier; Zalphia Hankamer; Larry

Bollich; Susan Bollich; Sheila Marino; William

Meissner; Taylor McBride; Brian Abshier; Kathleen

Abshier; Jina Daigle; Coulon Devillier; Halley Ray,

Sr.; Halley Ray, Jr.; Sheila Moor; John Rhame; Alex

Hargraves; Tammy Hargraves; William Devillier;

Kyle Wagstaff; Allison Wagstaff; Kevin Sonnier;

Eugenia Molthen; Bradley Moon; John Roberts;

Marilyn Roberts; Savanna Sanders; Robert Brown;

Tracey Brown; Josh Baker; Lee Blue; Russell Brown;

Margaret Carroll; Kevin Cormier; James Davis;

Melissa Davis; Maria Gallegos; Christopher

Ferguson; Angela Hughes; Robert Laird; Harold

Ledoux; Kacey Sandefur; Tifani Staner; Stephen

Stelly; Randall Stout; Patti Stout; Chris Day; Calvin

Hill; Michael Weisse; Julie Weisse; Eleanor Leonard;

Ivy Hamm; Claude Roberts; Bryan Olson; Caren

Nueman; Floyd Cline, Jr.; Kenneth Coleman; Haylea

Barrow; Carol Roberts; Jenica Vidrine; Charles

Collier; Sharon Crissey; James Brad Crone; Heather

Coggin; James Coggin; Clovis Melancon; Leroy

iii

Speights; Crossroads Asphalt Preservation, Inc.; Fesi

Energy, LLC; Brian Fischer; Curtis Laird; Devon

Boudreaux; Richard Belsey; Sharon Clubb; Janet

Dancer; Porter May; Cindy Perez; Cecile Jimenez;

Scott Hamric; Bruce Hinds; Tina Hinds; William

Olivier; Esteban Lopez; Billy Stanley; Candace

Abshier; Sean Fillyaw; Autumn Minton; Brandon

Sanders; Rodney Badon; Charlie Carter; Myra

Wellons; Jerry Stepan; Bryan Mills; Cat 5 Resources

LLC; Joan Jeffrey; 1 Randy Brazil; Monica Brazil;

Herbert Dillard; Kerry Dillard; Southeast Texas

Olive, LLC; and Gulf Coast Olive Investments, LLC.

These plaintiffs were the appellees in the Fifth

Circuit below, and all of them join in this Petition. The

sole defendant in the district court was the State of

Texas, which was the appellant in the Fifth Circuit

below.

1 In an apparent scrivener’s error, the operative complaint below

identifies one of the property owners solely as “Jeffrey.” App. 6a.

Ms. Jeffrey is the real party in interest.

iv

STATEMENT OF RELATED CASES

Devillier v. State of Texas (Texas D. Ct.

Chambers County), No. 20DCV0300 (removed to

federal court June 29, 2020).

Sonnier v. State of Texas (Texas D. Ct.

Chambers County), No. 20DCV0792 (removed to

federal court December 16, 2020).

Se. Texas Olive, LLC v. State of Texas (Texas D.

Ct. Liberty County), No. 21DC-CV-00071 (removed to

federal court April 7, 2021).

Boudreaux v. State of Texas (Texas D. Ct.

Jefferson County), No. E-207211 (removed to federal

court April 7, 2021).

Devillier v. State of Texas (S.D. Tex.), No. 3:20cv-00223 (still pending).

Sonnier v. State of Texas (S.D. Tex.), No. 3:20cv-00379 (consolidated with case No. 20-cv-00223

May 17, 2021).

Se. Texas Olive, LLC v. State of Texas (S.D.

Tex.), No. 3:21-cv-00104 (consolidated with case No.

20-cv-00223 May 17, 2021).

Boudreaux v. State of Texas (S.D. Tex.), No.

4:21-cv-01521 (consolidated with case No. 20-cv00223 May 17, 2021).

Devillier v. State of Texas (5th Cir.), No. 2140750 (judgment entered November 23, 2022).

v

TABLE OF CONTENTS

Page

PETITION FOR CERTIORARI ................................. 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED ........................................ 1

STATEMENT ............................................................. 1

REASONS FOR GRANTING THE PETITION ........ 5

I. Lower Courts Disagree About Whether The

Takings Clause Provides A Mandatory Remedy

.......................................................................... 7

A. This Court has repeatedly identified the

Takings

Clause’s

just-compensation

requirement as “self-executing”................. 7

B. Lower courts take this Court at its word and

hold that courts are required to entertain

claims

arising

directly

under

the Takings Clause .................................. 10

C. The Fifth and the Ninth Circuits

disagree .................................................... 14

II. The Question Presented Is Important .......... 17

III.This Case Is A Good Vehicle ......................... 18

CONCLUSION ......................................................... 19

vi

TABLE OF APPENDICES

Page

Appendix A—Court of Appeals Opinion (Revised

January 10, 2023) (November 23, 2022) ............ 1a

Appendix B—Memorandum and Recommendation

(July 30, 2021)..................................................... 4a

Appendix C—Order Adopting Magistrate Judge’s

Memorandum and Recommendation (August

31, 2021) ............................................................ 33a

Appendix D—Order Granting Motion for Leave to

Appeal from an Interlocutory Appeal (October

8, 2021) .............................................................. 36a

Appendix E—Order Denying Motion to file an

Amicus Brief and Petitions for Rehearing En

Banc (January 11, 2023)................................... 38a

vii

TABLE OF AUTHORITIES

Page

CASES

Amen v. Dearborn,718 F.2d 789, (6th Cir. 1983) . 13

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

568 U.S. 23 (2012) ............................................... 4

Arrigoni Enterprises, LLC v. Town of Durham,

136 S. Ct. 1409 (2016) ....................................... 18

Azul-Pacifico, Inc. v. City of Los Angeles,

948 F.2d 575, (1991) vacated by Azul-Pacifico,

Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir.

1992) ............................................................ 14, 15

Azul-Pacifico, Inc. v. City of Los Angeles,

973 F.2d 704 (9th Cir. 1992) ..............5, 14, 15, 16

Baker v. City of McKinney, 601 F. Supp. 3d 124 (E.D.

Tex. 2022) .......................................................... 12

Benson v. State, 710 N.W.2d 131 (S.D. 2006)....... 11

Boise Cascade Corp. v. State ex rel. Or. State

Bd. of Forestry, 991 P.2d 563 (Or. Ct. App.

1999) .................................................................. 12

Cedar Point Nursery v. Hassid, 141 S. Ct.

2063 (2021) .................................................... 9, 17

Chi., Burlington & Quincy R.R. v. City of

Chicago, 166 U.S. 226 (1897) .................. 9, 10, 17

City of Baytown v. Schrock, 645 S.W.3d 174

(Tex. 2022) ................................................... 12, 17

City

of

Robinson

v.

Rodriguez,

No. 10-21-00075-CV, 2021 WL 4595743 (Tex.

App. Oct. 6, 2021) ................................................ 4

viii

DLX, Inc. v. Kentucky, 381 F.3d 511

(6th Cir. 2004) ................................................... 13

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)

............................................. i, 3, 7, 8, 9, 14, 16, 18

First Union Nat’l Bank v. Hi Ho Mall Shopping

Ventures, Inc., 869 A.2d 1193 (Conn. 2005) ..... 12

Greenway Dev. Co. v. Borough of Paramus,

750 A.2d 764 (N.J. 2000) ................................... 12

Henderson v. City of Columbus, 827 N.W.2d

486 (Neb. 2013).................................................. 11

Hernandez v. Mesa, 140 S. Ct. 735 (2020) ........ 5, 16

Jacobs v. United States, 290 U.S. 13 (1933) ....... 8, 9

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

.............................................................................. 9

Lapides v. Board of Regents, 535 U.S. 613 (2002)

............................................................................ 18

Manning v. Mining & Minerals Div. of the

Energy,

Mins.

and

Nat.

Res.

Dep’t,

144 P.3d 87 (2006) ....................................... 10, 11

Molina

v.

Richardson,

578

F.2d

846

(9th Cir. 1978) ................................................... 16

Pumpelly v. Green Bay Company, 80 U.S. 166 (1871)

........................................................................ 9, 10

Scott v. Toledo, 36 F. 385 (C.C.N.D. 1888) ....... 9, 10

SDDS, Inc. v. State, 650 N.W.2d 1 (S.D. 2002) .... 11

Seven

Up

Pete

Venture

v.

Schweitzer,

523 F.3d 948 (9th Cir. 2008) ............................. 16

ix

Sinnickson

v.

Johnson,

17

N.J.L.

129

(1839) ................................................................... 9

Speed v. Mills, 919 F. Supp. 2d 122

(D.D.C. 2013) ..................................................... 12

United States v. Clarke, 445 U.S. 253 (1980) ......... 8

United States v. Lee, 106 U.S. 196 (1882) ............ 17

Whitehead Oil Co. v. City of Lincoln,

515 N.W.2d 401 (Neb. 1994) ............................. 11

Will

v.

Mich.

Dep’t

of

State

Police,

41 U.S. 58 (1989) ................................................. 3

Wisconsin Dep’t of Corrections v. Schacht,

524 U.S. 381 (1998) ........................................... 18

Yee v. Escondido, 503 U.S. 519 (1992) .................. 15

Zito

v.

N.C.

Coastal

Res.

Comm’n,

8 F.4th 281 (4th Cir. 2021)................................ 13

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 9, cl. 2 ...................................... 5

U.S. Const. amend. V ............. 1, 2, 4, 5, 7, 11-15, 17

U.S. Const. amend. XI ..................................... 13, 18

U.S. Const. amend. XIV .....................5, 9, 11, 13, 16

STATUTES

28 U.S.C. § 1254(1) .................................................. 1

28 U.S.C. § 1292(b) .................................................. 4

42 U.S.C. § 1983 ..................... 2-3, 5-6, 11, 13-14, 16

OTHER AUTHORITIES

2 Story Const. § 1790 ............................................ 17

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fifth Circuit.

OPINIONS BELOW

The opinion of the court of appeals, App. 1a, is

reported at 53 F.4th 904. The report and

recommendation of the magistrate judge, App. 4a, is

unreported. The district court’s order adopting the

magistrate’s report and recommendation, App. 33a, is

also unreported.

JURISDICTION

The judgment of the court of appeals was

entered on November 23, 2022. Timely filed motions

for rehearing were denied on January 11, 2023. This

petition is timely filed on March 17, 2023. Petitioners

invoke this Court’s jurisdiction under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution

provides, in relevant part, “nor shall private property

be taken for public use without just compensation.”

STATEMENT

This case arises out of a series of inversecondemnation cases filed in Texas state courts, all

alleging that a Texas highway project had caused

widespread flooding. App. 4a–5a. The flooding was no

accident: In an effort to make sure that the eastbound

lanes of Interstate Highway 10 (“IH-10”) would be

available as an evacuation route in the event of a

flood, the Texas Department of Transportation raised

2

the highway’s elevation, added two additional lanes,

and installed a nearly three-foot “impenetrable, solid

concrete traffic barrier on the highway’s centerline.”

App. 8a. The median barrier worked as intended,

creating a weir that barricaded rainfall on the north

side: Water that would otherwise have flowed south

into the Gulf of Mexico stopped dead at Highway 10.

Ibid. Texas’s plan worked, at least in that it ensured

that part of the road remained navigable even in flood

conditions. App. 8a–9a. But it was not without cost.

Keeping the south side of IH-10 dry meant keeping

the north side of IH-10 wet and, in times of heavy

rainfall, flooded entirely. App. 9a.

Alleging that this flooding of their land worked

a taking under the constitutions of both the United

States and Texas, a group of local landowners filed an

inverse-condemnation suit against the State of Texas

in state district court, directly invoking both the

Texas and United States Constitutions. App. 4a–5a.

Texas promptly removed the case to federal court.

App. 5a. Other state-court lawsuits followed based on

the same basic claim that the weir in the middle of

IH-10 had also flooded other land. Ibid. Texas

removed those, too. Ibid. The cases were then

consolidated into a single action comprising some 77

distinct property-owner plaintiffs. App. 5a–6a.

Having removed the cases to its preferred

forum, Texas moved to dismiss, arguing (in relevant

part) that the property owners could not bring their

inverse-condemnation claims directly under the Fifth

Amendment. App. 12a. Takings claims, said Texas,

could be brought only under 42 U.S.C. 1983, and since

3

Texas, which is not a “person,” cannot be sued under

that statute, they could not be brought at all. Ibid. 2

The

magistrate

judge’s

report

and

recommendation advised that the motion, in relevant

part, should be denied for three reasons. App. 12a–

18a. First, the magistrate observed that Texas’s

position would allow states to take private property

and leave aggrieved property owners without any

federal constitutional remedy at all. App. 14a–15a.

This “eviscerates hundreds of years of Constitutional

law in one fell swoop.” App. 15a.

Second, the magistrate observed that the

Takings Clause, which (unlike other constitutional

provisions) expressly dictates a remedy, has long been

treated differently by this Court, pointing to this

Court’s repeated reaffirmations that the Takings

Clause “creates a substantive right to just

compensation that springs to life when the

government takes private property.” App. 15a (citing

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 315 (1987)). The

magistrate relied heavily on this Court’s admonition

in First English that “a landowner is entitled to bring

an action in inverse condemnation as a result of the

self-executing character of the constitutional

provision with respect to compensation” and that this

right does not depend on “[s]tatutory recognition” for

its existence. App. 16a (quoting First English, 482

U.S. at 315) (quotation marks omitted).

2 Neither States nor State agencies are “persons” subject to suit

under Section 1983. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 70–71 (1989).

4

And, finally, the magistrate noted that state

courts nationwide have followed this Court’s

admonitions and held that inverse-condemnation

claims can be brought directly under the Fifth

Amendment. App. 17a (collecting cases). For these

reasons, the magistrate concluded that the Fifth

Amendment provides a mandatory remedy and that,

at least in cases like this one where the State

affirmatively chooses to avail itself of the jurisdiction

of the federal courts, federal courts are empowered to

entertain claims seeking that remedy. App. 17a–18a. 3

The district court adopted the magistrate’s

recommendation in its entirety. App. 34a. Texas then

successfully sought leave to appeal that order under

28 U.S.C. 1292(b), which allows for interlocutory

appeals of controlling questions of law. App. 37a. 4

On appeal, the Fifth Circuit reversed,

addressing only whether inverse condemnation

claims can proceed directly under the Fifth

Amendment to the United States Constitution in the

3 The magistrate judge also rejected the State’s other affirmative

defenses, which are not at issue here. App. 18a; 20a–23a.

4 The interlocutory appeal addresses only the federal Takings

Clause claim, not the analogous claim under the Texas

Constitution. The federal claim matters because, in Texas’s

view, the Texas Constitution will find a taking only where the

government specifically intends to flood a particular piece of

property. Cf. City of Robinson v. Rodriguez, No. 10-21-00075-CV,

2021 WL 4595743, at *3 (Tex. App. Oct. 6, 2021) (“However, the

Rodriguezes provide no evidence of an intentional act on the part

of the City designed to confer a public benefit that the City knew

would cause damage to the Rodriguezes’[ ] property.”). Federal

takings jurisprudence, by contrast, asks both whether “the

invasion [was] intended” and whether it was “the foreseeable

result of authorized government action.” Ark. Game & Fish

Comm’n v. United States, 568 U.S. 23, 39 (2012).

5

absence of a Section 1983 cause of action. In a

published opinion, it held that they cannot. App. 2a.

While the opinion is published, it is brief. The

Fifth Circuit disposed of the issue in a single

substantive sentence: “Because we hold that the Fifth

Amendment Takings Clause as applied to the states

through the Fourteenth Amendment does not provide

a right of action for takings claims against a state, we

VACATE the district court’s decision and REMAND

for further proceedings.” Ibid. (footnote omitted). In

reaching this conclusion, the panel did not grapple

with any of the authorities holding otherwise (from

this Court or others) that the magistrate judge had

relied on below. Instead, it cited two cases: Hernandez

v. Mesa, 140 S. Ct. 735 (2020), in which this Court

declined to allow a Bivens cause of action for Fourth

or Fifth Amendment violations arising from a crossborder shooting, and Azul-Pacifico, Inc. v. City of Los

Angeles, 973 F.2d 704 (9th Cir. 1992), which asserts

that a Takings Clause plaintiff has “no cause of action

directly under the United States Constitution.”

App. 2a n.1. On January 10, the panel made minor

amendments to the opinion and, the next day, denied

the parties’ motions for rehearing. App. 41a.

This petition timely followed.

REASONS FOR GRANTING THE PETITION

The Constitution of the United States

specifically mentions only two remedies. One is

habeas corpus. See Art. I, § 9, cl. 2. The other is the

Fifth Amendment’s guarantee of just compensation

when private property is taken for public use. Some

courts—including this Court—have read that

guarantee of a remedy as a guarantee of a remedy,

holding that the Fifth Amendment is “self-executing”

6

and that property owners may therefore sue for

compensation without first obtaining legislative

permission. Two courts, the Ninth Circuit and (now)

the Fifth Circuit have disagreed, holding that the

just-compensation right is protected only as a matter

of legislative discretion and that federal takings

claims can therefore be brought only pursuant to 42

U.S.C. 1983—which, as to State defendants, means

they cannot be brought at all.

This split of authority—essentially one

between courts that follow this Court’s takings

jurisprudence and courts that ignore it—warrants

this Court’s intervention. Among other things, the

division of authority matters because it invites the

sort of gamesmanship illustrated by this case. Had

this case been litigated in Texas state court (where it

was filed), Texas courts would have recognized a

federal takings claim without requiring the plaintiffs

to invoke Section 1983. But by removing the federal

claim to federal court, Texas has changed the

substantive law governing the case and extinguished

the claim. That is a split of authority with real,

outcome-determinative effects on individual rights,

which makes the question presented important.

And this case is a remarkably straightforward

vehicle for resolving that question. The decision below

was an interlocutory appeal of the question

presented, which was sought by Texas itself in a case

that Texas itself removed to federal court. The Fifth

Circuit resolved that question on interlocutory appeal

because it is a controlling question of law, and this

Court can—and should—do the same. The petition for

certiorari should therefore be granted.

7

I.

Lower Courts Disagree About Whether

The

Takings

Clause

Provides

A

Mandatory Remedy.

This Court has repeatedly, for decades, held

that the Fifth Amendment’s just-compensation

remedy is self-executing—that is, that the remedy

stems directly from the Constitution and cannot be

limited by the exercise of legislative discretion. Many

lower courts have followed this Court’s directives and

held that they must entertain claims arising directly

under the Takings Clause. But two federal courts of

appeals—the Ninth and the Fifth Circuits—hold

otherwise. The petition should be granted to resolve

this split of authority.

A. This Court has repeatedly identified

the

Takings

Clause’s

justcompensation requirement as “selfexecuting.”

1. The simplest basis on which to conclude that

a landowner may bring an inverse-condemnation

claim arising directly under the Takings Clause is

that this Court has long recognized that “a landowner

is entitled to bring an action in inverse condemnation

as a result of ‘the self-executing character of the

constitutional

provision

with

respect

to

compensation[.]’” First English Evangelical Lutheran

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

(1987). First English is particularly instructive here.

In that case, a property owner filed suit alleging that

a Los Angeles ordinance worked a taking, and the

California courts held that no damages remedy was

available for regulatory takings. Id. at 308–09.

This Court reversed, holding that a damages

remedy for takings of private property is mandatory.

8

The Court’s analysis began with the text of the

Takings Clause, which (unlike other provisions in the

Bill of Rights) is not prohibitory—“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 314–15. The consequence of this

constitutional design is that “a property owner is

entitled to bring an action in inverse condemnation as

a result of ‘the self-executing character of the

constitutional provision with respect to compensation

. . . .” Id. 315 (quoting United States v. Clarke, 445

U.S. 253, 257 (1980)). Put simply, these claims for just

compensation “are grounded in the Constitution

itself[.]” Ibid. And these claims could proceed of their

own force: “‘Statutory recognition was not necessary’”

for a claim to proceed because suits for just

compensation “were [ ] founded upon the Constitution

of the United States.” Ibid. (quoting Jacobs v. United

States, 290 U.S. 13, 16 (1933).

The United States had urged this Court to take

a contrary view—to instead hold that “‘the

Constitution does not, of its own force, furnish a basis

to award money damages against the government.’”

Id. at 316 n.9 (quoting Brief for United States as

Amicus Curiae 14). But the Court directly rejected

that argument, pronouncing it “refute[d]” by a line of

cases stretching back to 1893. Ibid.; see also id. at 316

(collecting cases). Contrary to the arguments of the

United States, the only lesson that could be drawn

from this Court’s precedents was that “it is the

Constitution that dictates the remedy for interference

with property rights amounting to a taking.” Id.

at 316 n.9.

9

2. This Court’s opinion in First English is not

an outlier. Over a century of unbroken precedent

demonstrates that this Court has “never tolerated” a

rule under which “the government [can] appropriate

private property without just compensation so long as

it avoids formal condemnation.” Cedar Point Nursery

v. Hassid, 141 S. Ct. 2063, 2076 (2021); accord Knick

v. Township of Scott, 139 S. Ct. 2162, 2172 (2019) (“In

the event of a taking, the compensation remedy is

required by the Constitution.”).

As this Court emphasized in Knick, these

modern cases rest on a solid foundation. In Knick, the

Court pointed to Jacobs v. United States, 290 U.S. 13

(1933), which “made clear that, no matter what sort

of procedures the government puts in place to remedy

a taking, a property owner has a Fifth Amendment

right to compensation as soon as the government

takes his property without paying for it.” 139 S. Ct. at

2170 (citing Jacobs, 290 U.S. at 16). And “the same

reasoning applies to takings by the States.” Ibid. That

reasoning—that government takings give rise to a

right to compensation—has been repeatedly

acknowledged throughout this Court’s history. Even

in pre-incorporation cases like Pumpelly v. Green Bay

Company, this Court favorably cited the idea that it

was a “settled principle of universal law that the right

to compensation is an incident to the exercise of [the]

power” to take private property. 80 U.S. 166, 178

(1871) (quoting Sinnickson v. Johnson, 17 N.J.L. 129,

145 (1839)). And in Chicago, Burlington and Quincy

Railroad v. Chicago, this Court approvingly quoted

Justice Jackson’s opinion (riding circuit) in Scott v.

Toledo, which held that the Fourteenth Amendment

necessarily forbade states from “appropriate[ing]

private property for the public benefit or to public

10

uses without compensation to the owner[.]” 166 U.S.

226, 239 (1897) (quoting Scott v. Toledo, 36 F. 385,

395–96 (C.C.N.D. 1888)). In short, whether the

government is building a street (as in Scott) or

causing a flood (as in Pumpelly), property owners

have long been unquestionably entitled to

compensation for the taking of their property.

B. Lower courts take this Court at its

word and hold that courts are required

to entertain claims arising directly

under the Takings Clause.

1. Unsurprisingly, this Court’s repeated

admonitions that the just-compensation requirement

is “self-executing” has led many lower courts to treat

the requirement as self-executing. The highest courts

of New Mexico, Nebraska, and South Dakota all

squarely hold that the language of the Takings Clause

means that the federal just-compensation remedy is

mandatory and that inverse-condemnation claims

therefore can be brought without statutory

authorization. A host of other state courts of last

resort, along with other lower courts, have adopted

this same principle in various contexts.

Begin with New Mexico. See Manning v.

Mining & Minerals Div. of the Energy, Mins. and Nat.

Res. Dep’t, 144 P.3d 87 (2006). In Manning, the

plaintiffs sued directly under the federal Constitution

because they lacked a cause of action—the defendant

agency did not have the power of condemnation and

so, it said, could not be sued in inverse condemnation.

Manning, 144 P.3d at 91–92. The New Mexico

Supreme Court disagreed, holding that this Court’s

precedents required it to recognize a takings claim

brought directly under the “self-executing” Takings

11

Clause. Id. at 95–98. To be sure, the court said, most

of the rights secured under the Fourteenth

Amendment require Congress to create a remedy to

vindicate them. Id. at 97. But the just-compensation

requirement of the Fifth Amendment is a remedy

specifically required by the Constitution, which

means that “[t]he Takings Clause creates an

individual right to the remedy of just compensation.”

Ibid.

The same is true in Nebraska, which holds that

“[a] landowner is entitled to bring an action in inverse

condemnation as a result of the self-executing

character of the takings clauses of the U.S. and

Nebraska Constitutions.” Henderson v. City of

Columbus, 827 N.W.2d 486, 493 (Neb. 2013). Indeed,

Nebraska’s highest court has recognized and

distinguished between inverse-condemnation claims

brought directly under the Takings Clause and civilrights claims brought pursuant to 42 U.S.C. 1983,

even when those claims are brought in the same case.

Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 401,

405, 409 (Neb. 1994).

So too in South Dakota, where the state’s

highest court has held that the just-compensation

remedy is “self-executing [and therefore] does not

depend on statutory facilitation.” SDDS, Inc. v. State,

650 N.W.2d 1, 9 (S.D. 2002). South Dakota

landowners have an absolute right to bring federal

takings claims in state court, even where no statutory

authorization exists. Cf. Benson v. State, 710 N.W.2d

131, 140 (S.D. 2006).

Other high courts, at least in dicta, say the

same thing. In Texas, where this case was originally

filed, the state’s highest court has squarely

12

acknowledged that both the federal and state takings

clauses operate to “waive[ ] the government’s

immunity from lawsuits” and “require the

government to compensate property owners when it

takes their property for public use,” a waiver of the

immunity “that otherwise often insulates the public

treasury from claims for damages.” City of Baytown v.

Schrock, 645 S.W.3d 174, 176 (Tex. 2022).

Connecticut follows the same rule, recognizing that a

plaintiff whose claims are otherwise barred by

sovereign immunity nonetheless retains the right to

“seek just compensation for the state’s taking of its

property.” First Union Nat’l Bank v. Hi Ho Mall

Shopping Ventures, Inc., 869 A.2d 1193, 1197–98 &

n.3 (Conn. 2005). And New Jersey’s Supreme Court

has held that its state tort-claims act cannot bar

inverse-condemnation claims under the Fifth

Amendment because the federal “constitutional

prohibition against unconstitutional takings is selfexecuting.” Greenway Dev. Co. v. Borough of

Paramus, 750 A.2d 764, 770 (N.J. 2000). Other lower

courts agree as well. E.g., Baker v. City of McKinney,

601 F. Supp. 3d 124, 145 (E.D. Tex. 2022)

(“Accordingly, the Court holds that, because the Fifth

Amendment is self-executing, [plaintiff’s] claim under

the Fifth Amendment Takings Clause is not

dependent upon the § 1983 vessel.”); Speed v. Mills,

919 F. Supp. 2d 122, 128 (D.D.C. 2013) (“[T]he

Supreme Court has held that takings claims can be

stated directly under the Fifth Amendment, without

recourse to a statutory remedy, because of ‘the self executing character of the constitutional provision

with respect to compensation . . . .’”); Boise Cascade

Corp. v. State ex rel. Or. State Bd. of Forestry, 991

P.2d 563, 568 (Or. Ct. App. 1999).

13

2. These courts are not alone in their

understanding of this Court’s precedents. At least two

federal circuits, in the context of explaining the

interplay between the Takings Clause and the

Eleventh Amendment, have directly stated that the

Takings Clause allows for inverse-condemnation

claims outside the context of Section 1983. In DLX,

Inc. v. Kentucky, the Sixth Circuit held that the

Eleventh Amendment protected Kentucky from being

sued in federal court against its will but “that the

Fifth Amendment Takings Clause is a self-executing

remedy, notwithstanding sovereign immunity.” 381

F.3d 511, 527 (6th Cir. 2004). In other words, the

Eleventh Amendment might act as a barrier to filing

suit in federal court, but property owners nonetheless

had a right to bring a claim against the State arising

directly under the Fifth Amendment, and Kentucky

courts “would have [ ] to hear that federal claim.” Ibid.

Accord Amen v. Dearborn, 718 F.2d 789, 792 & n.4

(6th Cir. 1983) (authorizing suit against municipality

directly

under

the

Fifth

and

Fourteenth

Amendments).

The Fourth Circuit, too, holds that the

Eleventh Amendment bars Takings Clause suits

directly against states in federal court “when the

State’s courts remain open to adjudicate such claims.”

Zito v. N.C. Coastal Res. Comm’n, 8 F.4th 281, 286

(4th Cir. 2021) (quotation marks omitted). The

Fourth, though, unlike the Sixth, has not squarely

addressed whether the inverse-condemnation remedy

is mandatory—that is, “whether a State can close its

doors to a takings claim [or] whether the Eleventh

Amendment would ban a takings claim in federal

court if the State courts were to refuse to hear such a

claim.” Id. at 286 n.4. But it nonetheless recognizes

14

that those claims—wherever they must be brought in

the first instance—exist.

In sum, a Takings Clause claim brought under

the Fifth Amendment rather than Section 1983 would

certainly be viable in state courts across the country.

It would almost certainly be viable if it were removed

to the Fourth or Sixth Circuits. But, as discussed

below, two federal jurisdictions disagree and hold that

the claim brought here fails because Section 1983 is

the sole vehicle by which a property owner may

vindicate his rights under the Takings Clause.

C. The Fifth and the Ninth Circuits

disagree.

Two courts of appeals split from the consensus

described above and hold that property owners may

not vindicate their right to just compensation unless

Congress has expressly authorized them to sue under

Section 1983. Neither court, however, has ever

explained how its rule squares with this Court’s

instructions in First English or any of this Court’s

other Takings Clause jurisprudence.

The first decision on this side of the split came

from the Ninth Circuit. See Azul-Pacifico, Inc. v. City

of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992)

(“Azul-Pacifico II”). But Azul-Pacifico II was itself a

departure from the Ninth Circuit’s original rule, as

articulated in its first opinion in the very same case.

When the Ninth Circuit first considered the

Azul-Pacifico matter, it held (1) that the challenged

rent-control ordinance worked a physical taking and

(2) that the Takings Clause’s just-compensation

remedy was self-executing. Azul-Pacifico, Inc. v. City

of Los Angeles, 948 F.2d 575 (1991) (“Azul-Pacifico I”),

15

vacated by Azul-Pacifico II, 973 F.2d 704. Relying on

this Court’s Takings Clause cases, the Azul-Pacifico I

panel held that “[t]he Constitution itself provides

both the cause of action and the remedy” for an

uncompensated taking of private property, and “[t]his

is equally true of an action against a state

subdivision.” Azul-Pacifico I, 948 F.2d at 586. “If there

was any doubt on this score it was removed by the

Supreme Court in First English.” Ibid.

The panel’s first holding, about the rent-control

ordinance, was not long for this world. Shortly

thereafter, this Court decided Yee v. Escondido, in

which it analyzed a similar rent-control ordinance as

a regulatory, rather than physical, taking. 503 U.S.

519, 532 (1992). The Ninth Circuit panel promptly

granted rehearing and changed course in light of Yee.

Azul-Pacifico II, 973 F.2d at 705. But it did not simply

follow Yee and analyze the ordinance through the

rubric of regulatory takings. Instead, it now held

(without citing this Court’s Takings Clause cases)

that “a litigant complaining of a violation of a

constitutional right must utilize 42 U.S.C. § 1983[,]”

even for a Takings Clause claim. Ibid.

This change went unexplained. Nothing in Yee

abrogates First English or suggests that the Fifth

Amendment is not self-executing. And nothing in the

authorities cited by Azul-Pacifico II addresses First

English either. To the contrary, at least one of AzulPacifico II’s citations points in just the opposite

direction, noting that “the propriety of allowing

actions directly against municipalities directly under

the Constitution may depend on the specific right

being protected” and that the Ninth Circuit had

already “recognized the possibility of an action

against a local government for the uncompensated

16

taking of property[.]” Molina v. Richardson, 578 F.2d

846, 853 n.14 (9th Cir. 1978). 5

None of these flaws prevented the Fifth Circuit

from expressly adopted Azul-Pacifico II’s rule in its

published opinion below. App. 2a. But it, too, did so

without real explanation. The opinion provides a

single sentence of analysis: “[W]e hold that the Fifth

Amendment’s Takings Clause as applied to the states

through the Fourteenth Amendment does not provide

a right of action for takings claims against a state.”

Ibid. It cites none of the cases holding to the contrary.

It does not cite or try to harmonize its decision with

this Court’s Takings Clause cases. It does not explain

why it adopts a position that First English declared

“refuted.” 482 U.S. at 316 n.9. Instead, it cites only

two cases: Azul-Pacifico II and Hernandez v. Mesa,

140 S. Ct. 735 (2020), in which this Court declined to

extend a Bivens remedy to the context of a crossborder shooting. But the premise of the cases that find

the just-compensation remedy to be self-executing is

that the Takings Clause (by specifying a remedy) is

materially different from other constitutional rights.

Nothing in the Fifth Circuit’s opinion or any of the

cases it cites explains why that court disagrees.

Whatever the reasons for it, though, the split

exists. Binding precedent in two courts of appeals

holds that property owners are entitled to a federal

just-compensation remedy only via Section 1983 or

5 Later Ninth Circuit cases similarly assume, without holding,

that a takings remedy must exist outside the context of Section

1983. Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 954

(9th Cir. 2008) (“[T]he self-executing character of the Takings

Clause” creates an “obligation by the states to provide a specific

remedy for [federal] takings in their own courts[.]”).

17

via the discretionary largesse of a state government.

Other decisions (most importantly those of this Court)

hold otherwise and say that the federal justcompensation remedy is mandatory. The petition for

certiorari should be granted to resolve this question.

II.

The Question Presented Is Important.

The question presented is important because

property rights are important. “The Founders

recognized that the protection of private property is

indispensable to the promotion of individual

freedom.” Cedar Point Nursery v. Hassid, 141 S. Ct.

2063, 2071 (2021). This Court cases repeatedly

emphasize the point: “‘[I]n a free government almost

all other rights would become worthless if the

government possessed an uncontrollable power over

the private fortune of every citizen.’” Chi., Burlington

& Quincy R.R. v. City of Chicago, 166 U.S. 226, 236

(1897) (quoting 2 Story Const. § 1790). A rule that

allows the taking of private property without

compensation “sanctions a tyranny which has no

existence in the monarchies of Europe, nor in any

other government which has a just claim to wellregulated liberty and the protection of personal

rights.” United States v. Lee, 106 U.S. 196, 221 (1882).

The question presented, quite simply, is whether the

Constitution gives states

the discretion to

“sanction[ ]” that “tyranny.”

But the question presented is also important

because this division of authority invites

gamesmanship. This case is a perfect illustration. In

Texas state courts, aggrieved property owners may

bring inverse-condemnation claims directly under the

Fifth Amendment. City of Baytown v. Schrock, 645

S.W.3d 174, 178 (Tex. 2022). Indeed, under this

18

Court’s decision in First English, it is almost certainly

mandatory for Texas courts to recognize these claims.

But if Texas defendants elect to remove that federal

claim to federal court, it is instantly extinguished.

App. 2a. In other words, the existence of a judicial

forum to vindicate that Texas property owner’s

federal right to just compensation is entirely in the

discretion of the government’s attorneys. 6

But federal rights exist, or they do not. Federal

remedies are mandatory, or they are not. And this

Court is meant to be the final arbiter of what rights

are enforceable and what remedies are mandatory.

Allowing the current circuit split to persist vests those

decisions in the hands of litigants rather than courts.

The petition for certiorari should therefore be

granted.

III.

This Case Is A Good Vehicle.

This case is a good vehicle to resolve the

question presented. Respondent has already, by

seeking an interlocutory appeal, conceded that the

question presented is a controlling question of law

here. And it is the only question addressed in the

The point of removal jurisdiction, of course, is to provide a

federal forum for federal claims, not to allow government

defendants to tactically avoid the adjudication of those federal

rights. See, e.g., Lapides v. Board of Regents, 535 U.S. 613, 621

(2002) (rejecting Georgia’s Eleventh Amendment position

because it “would permit States to achieve ‘unfair tactical

advantage[ ]’” through removal (quoting Wisconsin Dep’t of

Corrections v. Schacht, 524 U.S. 381, 393-94 (1998) (Kennedy, J.,

concurring)); see also Arrigoni Enterprises, LLC v. Town of

Durham, 136 S. Ct. 1409 (2016) (Thomas, J., dissenting from

denial of cert.) (criticizing strategic removal of Takings Clause

cases as “gamesmanship [that] leaves plaintiffs with no court in

which to pursue their claims”).

6

19

published opinion below. Moreover, the question

presented is narrow. The Court need not address

whether states may generally be sued in federal court

under the Takings Clause because Texas, having

removed this case, is in federal court of its own

volition (which, Texas has conceded, waives its

immunity from suit). It need not decide even whether

Texas must ultimately pay damages because, at the

motion-to-dismiss stage, the only question is whether

Petitioners can state a claim directly under the

Takings Clause at all. There is no barrier to this

Court’s granting the petition, determining whether

property owners must rely on legislative grace to

enforce their rights under the Takings Clause, and

remanding for further proceedings. The petition

should therefore be granted.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

TRACE MITCHELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

tmitchell@ij.org

20

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

MARCH 17, 2023