Supplemental Brief — Richard Devillier, et al., Petitioners v. Texas

SUPPLEMENTAL APPENDIX

TABLE OF CONTENTS

Page

Appendix F—Order Denying Rehearing En Banc

(March 23, 2023) .............................................. 42a

Opinion of Judge Higginbotham, concurring

in denial of rehearing en banc ......................... 44a

Opinion of Judge Higginson, concurring in

denial of rehearing en banc ............................. 51a

Opinion of Judge Oldham, dissenting from

denial of rehearing en banc ............................. 64a

42a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-40750

RICHARD DEVILLIER; WENDY DEVILLIER; STEVEN

DEVILLIER; RHONDA DEVILLIER; BARBARA DEVILLIER;

ET AL,

Plaintiffs—Appellees,

versus

STATE OF TEXAS,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-223

USDC No. 3:20-CV-379

USDC No. 3:21-CV-104

USDC No. 4:21-CV-1521

ON A POLL ON THE COURT’S OWN MOTION

43a

Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON,

Circuit Judges.

PER CURIAM:

At the request of one of its members, the court

was polled, and a majority did not vote in favor of rehearing (Fed. R. App. P. 35 and 5TH Cir. R. 35).

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

rehearing (Smith, Elrod, Engelhardt, Oldham, and

Wilson), and eleven voted against rehearing (Richman, Jones, Stewart, Southwick, Haynes, Graves,

Higginson, Willett, Ho, Duncan, and Douglas).

44a

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring

in denial of rehearing en banc:

Property Owners filed suits in Texas state

courts claiming that the flooding of their land by the

State of Texas constituted a taking under the Takings

Clause. The State removed the cases to federal court

asserting federal question jurisdiction. The State

moved to dismiss the takings claims, arguing that the

Fifth Amendment does not create an implied cause of

action, the State is immune from monetary liability,

and some claims were barred by the limitations period. The district court denied the motion, finding that

the Plaintiffs-Property Owners could advance their

claims directly under the Takings Clause. The panel

disagreed. The Fifth Amendment Takings Clause

does not provide a right of action in federal court for

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

the state courts to the Supreme Court. On that passage, the Supreme Court of Texas applies both federal

and state law. 2 Its decisions on state law control, and

1 See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“[A]

federal court’s authority to recognize a damages remedy must

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

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

(holding that a takings plaintiff has “no cause of action directly

under the United States Constitution”), cert. denied, 506 U.S.

1081 (1993).

2 The Supreme Court of Texas recognizes takings claims

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

taking. See Gutersloh v. Texas, No. 93-8729, 25 F.3d 1044, 994

WL 261047, *1 (5th Cir. 1994) (unpublished) (per curiam) (“[T]he

courts of the State of Texas are open to inverse condemnation

45a

Texas state law provides the procedures for fulfilling

the State’s obligations under the Takings Clause for

takings by the state. 3

In short, the en banc court did not err in rejecting the contention that “self-executing,” as used in

Knick, creates federal jurisdiction and need not find a

jurisdictional grant such as 42 U.S.C. § 1983. Nor did

the en banc court err in leaving undisturbed the

panel’s remand to the district judge for further proceedings, which should be understood to include a return to the state courts for their upward trek. 4

damage claims against state agencies on the basis of the Fifth

Amendment, as applied to the states through the Fourteenth

Amendment, as well as on the basis of the Texas Constitution

and laws.”); City of Baytown v. Schrock, 645 S.W.3d 174, 178

(Tex. 2022) (“Under our [federal and state] constitutions, waiver

occurs when the government refuses to acknowledge its intentional taking of private property for public use. A suit based on

this waiver is known as an ‘inverse condemnation’ claim.”); Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 176 S.W.3d 680, 683–

84 (Tex. App.—Dallas 2005, pet. denied) (noting that Texas

courts apply a two-year limitations period to takings claims for

“damaged” property and a ten-year limitations period to takings

claims for “taken” property).

3 See Knick v. Township of Scott, 139 S. Ct. 2162, 2170

(2019) (“The Fifth Amendment right to full compensation arises

at the time of the taking . . . .”).

4 The Property Owners may yet raise their Takings

Clause argument to the Supreme Court, and we granted their

motion to stay the mandate to facilitate certiorari.

46a

I.

Takings by the state have been addressed and

overseen by state courts throughout our history, with

review by state supreme courts and then review by

the Supreme Court. It signifies that it is that genre of

cases—and not takings by municipalities—that is at

issue. As I will explain, this flow of cases is no accident.

The en banc court rejected the contention that

the “self-executing” character of the Takings Clause

grants direct access to federal courts, and for good

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

the completeness of the claim itself, the point at which

a takings claim is ready for a court. Chief Justice Roberts explains:

Because of “the self-executing character”

of the Takings Clause “with respect to

compensation,” a property owner has a

constitutional claim for just compensation at the time of the taking. 5

The completeness of the claim is the sole usage

of the term. Its purpose was to retreat from the earlier

Williamson County doctrine. 6 The Court then explains that the claim can be immediately pursued in

5 Id. at 2171 (quoting First English Evangelical Lutheran

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

(1987)).

6 Id. at 2179.

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the federal courts by 42 U.S.C. § 1983, 7 which by its

terms does not reach actions against the state—as

distinguished from local governments and municipalities. The Supreme Court was explicit: because takings claims against municipalities can be brought under this provision, it “ha[d] no occasion to consider

[the Solicitor General’s] “novel [] argument” that state

takings claims can be brought directly in federal court

pursuant to 28 U.S.C. § 1331. 8 In other words, lifting

a term of art from its context—the retreat from Williamson County—effectively denies its true meaning.

That § 1983 by its terms does not reach state

conduct does not mean that Knick left takings by the

state without a pathway. To the contrary, Knick did

not abandon federal review of state takings; it left undisturbed the sole pathway through the state courts

with review by the state supreme court and the

United States Supreme Court, a process hundreds of

years old. Leaving the pathway of state takings to the

state courts is a direct response to the unique makeup

of takings under the Fifth Amendment: an amalgam

of state and federal law. This effectively allows the

United States Supreme Court to address state takings when issues of property law are settled by the

state supreme court, this because the state supreme

court is final on matters of state law.

7 Id. at 2177 (“We conclude that a government violates

the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment

claim under § 1983 at that time.”).

8 Id. at 2174 n.5.

48a

In turn, this passageway for state takings informs the lower federal courts with takings cases from

municipalities and local government entities of the

controlling state law defining property rights. Again,

this is neither accident nor is it an exhaustion requirement. It is the familiar service of federalism expressed in the choice of routes for review of state actions in their upward path to the Supreme Court.

Casting aside both the utility and the service to

federalism of the pathway to the Supreme Court

through state courts by granting immediate access

into the lower federal courts of state takings would

reflect a distrust of the state courts to apply federal

law as they are obligated to do. 9 State judges take the

same oath to faithfully apply the law as do federal

judges, and with all deference to our federal brethren,

leaving in place passages to state supreme courts for

state takings claims brings the well-equipped eyes of

those dealing with state property interests on a daily

basis, as they have done all these many years. In sum,

the contentions we reject would work a profound upset of state-federal relations. This strained effort to

drain state courts of state takings claims as reflected

in the procedural gymnastics of this case come with

9 See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507

(1962) (“We start with the premise that nothing in the concept of our

federal system prevents state courts from enforcing rights created by

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

system of dual sovereignty, we have consistently held that state courts

have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.”); Claflin v.

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

49a

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

At present, and for the past 100 years, all but

one of the states have met their obligations under the

Fifth Amendment to provide procedural pathways for

the termination of condemnation cases. 10 As Justice

Black reminded us in Testa v. Katt, federal law is

state law. 11 It is not foreign law. 12 The state courts

are thus obligated to follow federal law perforce constitutional law. Here, the Takings Clause, by its own

language, charges the states to provide just compensation for takings. 13 Texas did that, providing a pathway through state courts of takings claims both in its

constitution and legislation for more than a century.

From the beginning the Fifth Amendment

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

were the enforcers of all claims against the state for

all state takings in all but one state. When § 1983 arrived, offered by an act of Congress under the Fourteenth Amendment, it did not provide a right of

And even in Ohio, mandamus provides a remedy. See Knick,

139 S. Ct. at 2169.

10

11 See generally 330 U.S. 386 (1947); see also Claflin, 93 U.S. at

136 (“The laws of the United States are laws in the several States, and

just as much binding on the citizens and courts thereof as the State

laws are.”).

12 See Claflin, 93 U.S. at 136 (noting that “[t]he United States

is not a foreign sovereignty as regards the several States”).

13 U.S. CONST. amend. V (“Nor shall private property be taken

for public use, without just compensation.”).

50a

actions against states. This left in place the pathway

to the Supreme Court of takings by the states as distinguished from the pathways of cities and municipalities, a familiar review regime and an extraordinarily

large structure nationwide that has operated for over

a century. Yet despite any need, our dissenting colleagues seek to gratuitously puncture it. The en banc

court refused to do so, and the peoples’ property remains fully protected from takings by the government.

If the present effort of this suit is an expression

of distrust of state courts, it comes with a large price,

both to this Court and to this structure. In short, no

case has been made for rerouting state takings to the

lower federal courts, bypassing the superintendence

of the state supreme courts who share their responsibility for the last word on state law with the United

States Supreme Court’s final word on their federal

component. So, our question is, what is the need?

There simply is no rational reason to disturb the procedural paths of this genre of cases. It is in place and

working effectively, as it has throughout our history.

To do so would upset the structures of all but one of

the states in the union, a pristine exemplar of federalism—not just a political slogan, but the heart of our

splitting of the atom of sovereignty.

We have a Congress. It wrote § 1983. It can accomplish what is proposed, but it is telling that it has

not. This move is above our paygrade.

51a

STEPHEN A. HIGGINSON, Circuit Judge, concurring in

denial of rehearing en banc:

This case is about whether there is an implied

cause of action in the Fifth and Fourteenth Amendments for claims that “due process of law . . . requires

compensation to be made . . . to the owner of private

property taken for public use under the authority of a

state.” Chi., B. & Q.R. Co. v. City of Chi., 166 U.S. 226,

235 (1897). Because implying constitutional causes of

action is “a disfavored judicial activity,” Egbert v.

Boule, 142 S. Ct. 1793, 1803 (2022) (citation omitted),

and because implying such a cause of action here

would infringe separation-of-powers principles, I concur in denial of rehearing en banc.

Three terms ago, in Maine Community Health

Options v. United States, every Justice agreed that

“the Constitution did not expressly create a right of

action when it mandated just compensation for Government takings of private property for public use.”

140 S. Ct. 1308, 1328 n.12 (2020) (cleaned up); see id.

at 1334 & n.3 (Alito, J., dissenting). It follows that any

cause of action in the Takings Clause to sue the federal government for just compensation, if it exists, is

implied.

Eight of the Justices who decided Maine Community Health Options appear to have assumed that

the Takings Clause creates an implied cause of action

to sue the United States. Those Justices pointed out

that property owners can bring takings claims

against the United States “through the Tucker Act,”

52a

which “waive[s] immunity for certain damages suits

in the Court of Federal Claims” but “does not create

substantive rights.” Me. Cmty. Health Options, 140 S.

Ct. at 1327, 1328 n.12 (cleaned up); see 28 U.S.C. §

1491. Thus, a plaintiff relying on the Tucker Act’s immunity waiver must identify a claim “in some other

source of law, such as the Constitution.” United States

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

establish such a claim, the plaintiff “must demonstrate that the source of substantive law . . . can be

fairly interpreted as mandating compensation by the

Federal Government for the damages sustained,” id.

at 216-17 (cleaned up), either “expressly or by implication,” id. at 217 n.16 (citation omitted). Applying

those principles, Maine Community Health Options

suggested that the Takings Clause impliedly creates

a cognizable claim under the Tucker Act because the

Takings Clause imposes “a mandatory . . . obligation

to pay” on the United States. 140 S. Ct. at 1328 n.12;

see United States v. Causby, 328 U.S. 267 (1946) (holding that “[i]f there is a taking, the claim is ‘founded

upon the Constitution’ and within the jurisdiction of

the Court of Claims to hear and determine”).

So, if the Fifth Amendment had applied directly to the states at the Founding, this might be a

straightforward case. But the Takings Clause is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. See Chi.,

B. & Q.R. Co., 166 U.S. at 235. The question before

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

Fourteenth Amendment “made applicable to the

States” an implied cause of action against the federal

government, along with the rest of the Takings

53a

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

(1994).

One answer to the incorporation dilemma is

the proposition that an implied cause of action, if it

exists, would be part of the property owner’s “irrevocable right to just compensation . . . upon a taking.”

Knick v. Township of Scott, 139 S. Ct. 2162, 2172

(2019). Accordingly, when the substantive right guaranteed by the Takings Clause was incorporated

against the states, so was a corresponding implied

cause of action against the states, or so the argument

goes. This line of reasoning appears to follow the

“well-established rule that incorporated Bill of Rights

protections apply identically to the States and the

Federal Government.” McDonald v. City of Chi., 561

U.S. 742, 766 n.14 (2010).

However, that theory assumes that an implied

cause of action against the federal government for

takings claims is intrinsic to the property owner’s

right to just compensation as opposed to a distinct

right that would require separate incorporation

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

1390, 1405 n.63 (2020) (“The scope of an incorporated

right and whether a right is incorporated at all are

two different questions.”). Since a cause of action

against the federal government is not express in the

Fifth Amendment, see Me. Cmty. Health Options, 140

S. Ct. at 1328 n.12, if such a cause of action exists, it

must be “judicially created,” Egbert, 142 S. Ct. at

54a

1802. 1 And it is not obvious why a cause of action fashioned by judges—not the Constitution—would be coextensive with a substantive constitutional right such

that incorporation of one would incorporate the other.

Nor is it obvious that a judicially created cause of action is always or ever a constitutional right that can

be incorporated through the Fourteenth Amendment. 2

There is at least one other reason to think that

a judicially created cause of action to enforce the Takings Clause, separate and distinct from the right to

just compensation, was not automatically incorporated against the states along with the substantive

right. The Takings Clause is “enforced against the

States under the Fourteenth Amendment according to

the same standards that protect . . . against federal

1 It may be that an implied cause of action against the

federal government in the Takings Clause is not “implied” as

that term has been used in the Supreme Court’s post-Bivens decisions. See, e.g., Egbert, 142 S. Ct. at 1802. After all, unlike

other provisions in the Bill of Rights, the Takings Clause refers

to “compensation,” and the Supreme Court has explained that

under the Takings Clause, “the compensation remedy is required

by the Constitution,” First English Evangelical Luther Church

of Glendale v. L.A. Cnty., 482 U.S. 304, 316 (1987). But I take

the Maine Community Health Options dictum at its word—the

reference to compensation in the Takings Clause does not create

an express constitutional cause of action—and so some kind of

judicial genesis seems necessary to bring the remedy into being.

2 Otherwise, why not say that the causes of action im-

plied in Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971) and Carlson v. Green, 446 U.S.

14 (1980), were incorporated along with the Fourth and Eighth

Amendments?

55a

encroachment.” Malloy v. Hogan, 378 U.S. 1, 10

(1964) (emphasis added); see McDonald v. City of Chi.,

561 U.S. 742, 765 (2010). Accordingly, while a property owner has the same “irrevocable right to just

compensation immediately upon a taking” by a state

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

2172, the enforcement of that right against a state is

contingent on the Due Process Clause. For a takings

claim against a state to be “under the Fourteenth

Amendment” in more than name only, Malloy, 378

U.S. at 10, the relevant cause of action would presumably need to be implied in the Due Process Clause as

well. 3

3 In Mapp v. Ohio, the Court noted that the federal ex-

clusionary rule was “judicially implied” but applied it to the

states because the Court understood it as “of constitutional

origin,” “an essential part of the right of privacy,” and “an essential part of . . . [the] Fourteenth Amendment[].” 367 U.S. 643,

648, 657 (1961). Later, the Court recognized that the rule “is a

judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a

personal constitutional right of the party aggrieved.” United

States v. Calandra, 414 U.S. 338, 348 (1974); see Davis v. United

States, 564 U.S. 229, 237-38 (2011). It is not entirely clear

whether, under modern incorporation doctrine and this modern

understanding of the exclusionary rule, Mapp would have been

decided differently. Cf. McDonald, 561 U.S. at 785 (“Although

the exclusionary rule is not an individual right but a judicially

created rule, this Court made the rule applicable to the States”

(cleaned up)). In any event, Mapp did pass on whether the implied “sanction of exclusion” was an essential part of the Due

Process Clause of the Fourteenth Amendment. Mapp, 367 U.S.

at 655. To perform the same analysis with respect to an implied

cause of action against the states may trigger the separation-ofpowers inquiry that the Court has said controls the implication

of constitutional causes of action. See Ziglar v. Abbasi, 582 U.S.

120, 135 (2017).

56a

The upshot of this analysis is that an implied

cause of action for takings claims against states has

not been incorporated by the Due Process Clause of

the Fourteenth Amendment and therefore would need

to be independently implied from the constitutional

text. “When a party seeks to assert an implied cause

of action under the Constitution itself . . . [t]he question is ‘who should decide’ whether to provide for a

damages remedy, Congress or the courts?” Ziglar v.

Abbasi, 582 U.S. 120, 135 (2017) (citation omitted).

We will not recognize an implied constitutional cause

of action if “there is any reason to think that Congress

might be better equipped to create a damages remedy.” Egbert, 142 S. Ct. at 1803.

There are four warning signs that this court

would “arrogate legislative power” by implying a

cause of action against the states in the Takings

Clause of the Fifth Amendment as incorporated by

the Due Process Clause of the Fourteenth Amendment. Egbert, 142 S. Ct. at 1803 (cleaned up). An alternative remedial structure already exists in state

inverse-condemnation law. See Ziglar, 137 S. Ct. at

1858 (citing Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 73-74 (2001) (state tort law)); Minneci v. Pollard,

565 U.S. 118, 129 (2012) (state tort law). In 42 U.S.C.

§ 1983, Congress decided to provide a damages remedy for takings claims against municipalities and certain local government units, see Monell v. Dep’t of Soc.

Servs. of N.Y., 436 U.S. 658, 691 & n.54 (1978), but

not states, Will v. Mich. Dep’t of State Police, 491 U.S.

58, 66 (1989). Implying a judicial remedy against

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

57a

state interests in this area than our court. And we

“cannot predict the systemwide consequences of recognizing a cause of action” under the Fifth and Fourteenth Amendments for takings claims against states.

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

The dissent does not grapple with the incorporation dilemma or justify implying a cause of action

in the Fifth and Fourteenth Amendments. See Me.

Cmty. Health Options, 140 S. Ct. at 1328 n.12 (2020)

(“[T]he Constitution did not expressly create a right

of action when it mandated just compensation for

Government takings of private property for public

use.”). Instead of offering a theory of incorporation or

implication, the dissent contends that federal courts

have long entertained takings claims against states,

invokes cases where “[t]he Court affirmed the self-executing nature of the Fifth Amendment,” and identifies First English Evangelical Lutheran Church of

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

as a case where the Supreme Court held that a statutory cause of action is not required to recover just compensation under the Takings Clause. But the dissent’s authorities fall short of supporting its argument.

First, the dissent invokes pre-incorporation

cases where federal courts considered takings claims

against states. However, as the dissent notes, Congress had provided a jurisdictional basis for federal

courts to hear state-law takings causes of action preincorporation. So those cases don’t illuminate

whether the Due Process Clause of the Fourteenth

Amendment incorporated an implied cause of action

58a

for takings claims against states or whether the cause

of action should be implied now.

Second, the dissent relies on post-incorporation

cases adjudicating takings claims against municipalities, not states. See Vill. of Norwood v. Baker, 172

U.S. 269 (1898); Cuyahoga River Power Co. v. City of

Akron, 240 U.S. 462 (1916); Del., L. & W.R. Co. v.

Town of Morristown, 276 U.S. 182 (1928); Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 4 These

claims today could be brought under § 1983, and at

most, these cases support an inference that a cause of

action exists against local governments. Regardless,

these cases may have simply “assumed without . . .

deciding” “[t]he question whether a cause of action exists,” because absence of a cause of action is not a jurisdictional issue. Burks v. Lasker, 441 U.S. 471, 476

n.5 (1979).

Even if these older cases did assume without

deciding that an implied cause of action existed, that’s

unsurprising because the Supreme Court’s more recent decisions have cast aside the method of finding

causes of action in the Constitution where Congress

is silent and an alternative remedial framework

4 One exception is Dohany v. Rogers, which was an early

twentieth-century suit “to enjoin the state highway commissioner and others from acquiring a right of way . . . and from

prosecuting a proceeding in the state courts for the acquisition

of the right of way . . . on the ground that the state statutes under

which the proceeding was had infringed the State Constitution

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

against a state.

59a

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

Ct. at 1854. And a procedural vehicle exists in every

state’s law to enforce takings claims. 5 See Knick, 139

S. Ct at 2168 & n.1.

Next, the dissent says that the Supreme Court

has “affirmed the self-executing nature of the Fifth

Amendment again and again throughout the twentieth century.” But the dissent does not and cannot

maintain that these cases implied a cause of action

against the states in the Fifth and Fourteenth

Amendments. With two exceptions, the cases that the

dissent cites did not involve claims against states or

5 Relying on a proposed amicus brief submitted in this

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

amicus, in turn, seems to rely on our recent decision in Ariyan,

Inc. v. Sewerage & Water Board of New Orleans, 29 F.4th 226

(5th Cir. 2022), cert. denied, 143 S. Ct. 353 (2022). There, the

plaintiffs had won final judgments for violations of Louisiana

law against the Board in state court, but the Board failed to satisfy those judgments. See id. at 228-29, 231-32. So the plaintiffs

filed a § 1983 suit alleging that the Board’s failure to timely pay

just compensation once the compensation had been awarded violated the Takings Clause. See id. at 229. We held that plaintiffs

had failed to state a claim for a violation of the Takings Clause

because “there is no property right to timely payment on a judgment” awarded for a state-law claim. Id. at 228. But Ariyan isn’t

the end of the story for plaintiffs bringing takings claims against

Louisiana state governmental entities. Ariyan did not decide

that a state’s refusal to pay just compensation for a federal takings claims would be constitutional under the Fifth Amendment

requirement of a just compensation remedy, see First English,

482 U.S. at 316. Nor did Ariyan hold that it would be constitutional for a state to refuse to pay a judgment for a state-law takings claim where the plaintiff had no procedural vehicle to bring

a federal takings claim. Those issues remain live after Ariyan.

60a

present the question of whether an implied federal

constitutional cause of action exists against states.

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

1 (1984); United States v. Clarke, 445 U.S. 253 (1980);

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

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

v. United States, 290 U.S. 13 (1933). And neither of

the cases that did arguably raise the issue— First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304 (1987), and Knick v.

Township of Scott, 139 S. Ct. 2162 (2019)—resolved

it.

In First English, the petitioner had sued in

state court alleging that a County ordinance denied it

“all use of” its property. Id. at 308. The complaint “invoked only the California Constitution,” id. at 313 n.8,

and sought damages for the lost use of the property,

id. at 308. But under a California Supreme Court decision, Agins v. Tiburon, 598 P.2d 25 (Cal. 1979),

“compensation [was] not required until the challenged regulation or ordinance has been held excessive in an action for declaratory relief or a writ of

mandamus and the government has nevertheless decided to continue the regulation in effect,” First English, 482 U.S. at 308-09. Relying on Agins, the state

trial court struck First English’s allegation that the

ordinance denied it all use of its property. Id. at 309.

In affirming the trial court, the state intermediate

court of appeals followed Agins “because the United

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

remedy for a taking to nonmonetary relief.” Id. (citation omitted). The California Supreme Court denied

61a

review. Id. The Supreme Court reversed, “merely

hold[ing] that where the government's activities have

already worked a taking of all use of property, no subsequent action by the government can relieve it of the

duty to provide compensation for the period during

which the taking was effective.” Id. at 321.

Before reaching the merits, the Court addressed several challenges to the Court’s jurisdiction

that the County raised, including that First English

“failed to preserve for review any claim under federal

law.” Id. at 313 n.8. After all, First English’s complaint didn’t raise any federal claims. Id. But First

English had argued in the state appellate court that

the Agins rule was unconstitutional, and the state appellate court applied Agins to dismiss the action nonetheless. Id. Because the state appellate court “rejected

on the merits the claim that the [Agins] rule violated

the United States Constitution,” the state court “considered and decided the constitutional claim” that the

ordinance violated the federal Takings Clause by failing to provide just compensation. Id. On this basis,

the Court found that it had appellate and certiorari

jurisdiction. Id.

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

that “a temporary taking of property is clearly within

the constitutional proscription that private property

shall not be taken for public use without just compensation.” Brief for the United States as Amicus Curiae

Supporting Appellee, First English, 482 U.S. 304 (No.

85- 1199), 1986 WL 727420, at *11. But the United

States argued that neither the Fifth Amendment nor

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Fourteenth Amendment, “of its own force, furnish[es]

a basis for a court to award money damages against

the government.” Id. at *14. In defending this contention, the United States claimed that “the Takings

Clause is strictly prohibitory and does not, without

further legislative action, mandate a monetary award

against the government,” and made a similar argument with respect to the Fourteenth Amendment. Id.

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

1983 provides a statutory remedy upon which First

English had not relied in state court or the Supreme

Court. See id. at *30-*32. Collectively, these arguments attacked the core of First English’s position—

that the Fifth Amendment requires compensation as

a remedy for “temporary” regulatory takings. First

English, 482 U.S. at 310.

Even assuming that the United States

“squarely presented” the Supreme Court “with the

question . . . whether [§ 1983] is an indispensable prerequisite for recovering just compensation,” as the

dissent asserts, the Court treated the United States’

arguments as a challenge to First English’s merits

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

section of opinion). And all the Court said in response

was that the United States was wrong that “the Fifth

Amendment, combined with principles of sovereign

immunity, establishes that the Amendment itself is

only a limitation on the power of the Government to

act, not a remedial provision,” and that “the Constitution does not, of its own force, furnish a basis for a

court to award money damages against the government.” Id. (citations omitted). Rather, “the Constitution . . . dictates the remedy for interference with

63a

property rights amounting to a taking.” Id. This is essentially what the Court eventually held as to the ultimate issue in the case: “invalidation of the ordinance

without payment of fair value for the use of the property . . . would be a constitutionally insufficient remedy.” Id. at 322. So the Court did not silently hold that

there is an implied cause of action against the states

in the Fifth and Fourteenth Amendments. It certainly

did not do so by directing future readers to seek out

the United States’ amicus brief as a guide to interpreting the holding of the case.

Knick doesn’t resolve the issue, either. There,

the Court held that a “property owner has suffered a

violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal

court under § 1983 at that time.” 139 S. Ct. at 2168

(emphasis added). It is difficult to understand why

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

is not a necessary ingredient for the suit. Therefore,

Knick only shows that the dissent’s approach would

undermine the scheme Congress has set forth to enforce the Takings Clause.

In short, we have long outgrown the “ancien regime that freely implied rights of action.” Oliva v.

Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (cleaned up);

Cantú v. Moody, 933 F.3d 414, 421 (5th Cir. 2019)

(similar). This case, I ultimately conclude, is no exception. Accordingly, I concur in the denial of rehearing

en banc.

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ANDREW S. OLDHAM, Circuit Judge, joined by SMITH,

ELROD, ENGELHARDT, and WILSON, Circuit Judges,

dissenting from the denial of rehearing en banc:

The panel decision renders federal takings

claims non-cognizable in state or federal court. This

breaks with centuries of precedent. And the panel did

it in a one-paragraph decision with one sentence of

analysis. The panel’s sources for this remarkable

holding? A Bivens case and a 1992 Ninth Circuit decision. No matter what one thinks about the merits

of this question, it plainly requires more explanation

than that.

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

purport to provide the reasoning that the published

panel opinion did not. And both of my esteemed colleagues say this appeal is much ado about nothing

because plaintiffs are free to litigate their federal

takings claims in state court.

Wrong. Plaintiffs already tried that, but the

State removed the cases. And rather than ordering

the case remanded to state court, the panel held that

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

purposes. Based on that deeply wrong misstep, the

panel then adjudicated plaintiffs’ federal takings

claims on the merits. Finis. Res judicata. The case is

now over, barring Supreme Court intervention. And

not just for these plaintiffs. The panel decision is an

insuperable obstacle to any plaintiff asserting any

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federal takings claim against any State in federal or

state court. If this case is not enbancworthy, then it’s

unclear how any case ever will be.

I.

The plaintiffs are 72 individuals, one corporation, and four limited liability companies who own

property on the north side of Interstate Highway 10

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

They alleged that their properties were “inundated,

destroyed, and/or damaged as a result of the affirmative actions of the State [of Texas] in designing, constructing, operating, and/or maintaining IH-10.”

ROA.1176. Specifically, plaintiffs alleged that the

State constructed an impenetrable concrete barrier

along the interstate for purposes of storing stormwater on plaintiffs’ private property without their

consent or compensation in violation of both the

Texas and U.S. Constitutions. The concrete barrier

looks like this:

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Plaintiffs alleged that the concrete barrier created a

dam that barricaded rainfall from flowing into the

Gulf of Mexico and instead flooded plaintiffs’ properties:

67a

Plaintiffs alleged the State thus took their property

without just compensation. See, e.g., Pumpelly v.

Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166

(1871) (creation of a dam that flooded plaintiff’s property constituted compensable taking); United States

v. Dickinson, 331 U.S. 745 (1947) (same); Ark. Game

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

(even temporary floods caused by government can

constitute compensable takings).

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The State of Texas removed all four actions to

federal court under 28 U.S.C. § 1441. The United

States District Court for the Southern District of

Texas consolidated the four cases. Plaintiffs then

filed a “First Amended Master Complaint,” which is

the live pleading in this case. Plaintiffs raised four

claims: (1) an unconstitutional taking without just

compensation under Article I, § 17 of the Texas Constitution; (2) an unconstitutional taking without just

compensation under the Fifth Amendment’s Takings

Clause, as incorporated against the States by the

Fourteenth Amendment; (3) deprivation of a property without procedural due process under the Fourteenth Amendment; and (4) deprivation of a property

without substantive due process under the Fourteenth Amendment. Plaintiffs sought damages, as

well as declaratory and injunctive relief.

The State then moved to dismiss (1) the statelaw takings claim and (2) the federal takings claim.

Regarding the federal claim, the State argued that

“42 U.S.C. § 1983 is the only vehicle by which a constitutional violation can be alleged.” ROA.1204–05.

Because the State is not a “person” amenable to suit

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

U.S. 58, 71 (1989), the State argued that it can never

be amenable to a federal taking claim in federal

court. ROA.1205–06. The State also argued that it

enjoys sovereign immunity against federal takings

claims—even after the State chose to remove the case

to federal court.

The magistrate judge recommended denying

the State’s motion in a powerful and incisive opinion.

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The magistrate judge (correctly) noted: “This thinking [by the State] eviscerates hundreds of years of

Constitutional law in one fell swoop, and flies in the

face of commonsense. It is pretzel logic.” ROA.1279.

The district court agreed with the magistrate judge

and adopted the report and recommendation. Then

the district court certified its order for interlocutory

review under 28 U.S.C. § 1292(b).

We accepted the certification and vacated the

district court’s order. The panel decision is one paragraph long. In one sentence, the panel dispensed with

plaintiffs’ federal claim: “Because we hold that the

Fifth Amendment Takings Clause as applied to the

[S]tates through the Fourteenth Amendment does

not provide a right of action for takings claims

against a [S]tate, we VACATE the district court’s decision for want of jurisdiction and REMAND with instructions to return this case to the state courts.”

Devillier v. Texas, No. 21-40750, 2022 U.S. App.

LEXIS 32519, at *1 (5th Cir. Nov. 23, 2022) (per curiam).

That sentence is plainly wrong for a host of

reasons. First and foremost, the absence of a cause of

action is a merits problem, not a jurisdictional one.

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

83, 89 (1998) (“It is firmly established in our cases

that the absence of a valid (as opposed to arguable)

cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional

power to adjudicate the case.”); Bell v. Hood, 327 U.S.

678, 682 (1946) (“Jurisdiction . . . is not defeated . . .

by the possibility that the averments might fail to

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state a cause of action on which petitioners could actually recover.”); 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 1350 (3d ed. Apr. 2022 update) [WRIGHT & MILLER]

(“Nor, as many courts have noted, should a motion

under Rule 12(b)(1) be confused with a motion under

Rule 12(b)(6) to dismiss for failure to state a claim for

relief under federal or state law because the two are

analytically different; as many courts have observed,

the former determines whether the plaintiff has a

right to be in the particular court and the latter is an

adjudication as to whether a cognizable legal claim

has been stated.”).

Second, the panel apparently forgot that the

case came to us on a § 1292(b) certification and that

other federal claims remained pending in the district

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

state courts.” Devillier, 2022 U.S. App. LEXIS 32519,

at *1.

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

the panel’s only support for its assertion was a footnote reference to two unrelated cases: The Supreme

Court’s most recent Bivens decision, Hernandez v.

Mesa, 140 S. Ct. 735 (2020), and the Ninth Circuit’s

aged decision in Azul–Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992).

Fourth, one-paragraph opinions with onesentence explanations are usually reserved for our

summary calendar, not pathbreaking constitutional

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rulings depriving property owners of any forum,

state or federal, for claims under centuries-old

constitutional provisions.

Both sides pointed out these and other errors

in cross-petitions for rehearing. And the Institute for

Justice filed a motion for leave to file an amicus brief

supporting rehearing en banc because “the Panel

failed to discuss or even mention the line of Supreme

Court cases establishing, repeatedly and clearly, that

the Fifth Amendment’s Takings Clause is selfexecuting and needs no statutory recognition.” IJ

Amicus at 2. The putative amicus also argued:

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

particular. Regardless of whether Texas

allows its courts to hear and enforce takings claims against state entities, Louisiana does not. The holding below, unless corrected, leaves property owners in

Louisiana without any vehicle for vindicating

fundamental

constitutional

rights. Such a result, correct or otherwise, deserves more explanation than

the Panel provided.

Id. at 3.

Again without explanation, the panel denied

IJ’s motion for leave to file its amicus brief. And

again without explanation, it then denied the petitions for rehearing. Crucially, however, it revised its

72a

one-sentence rejection of plaintiffs’ takings claims to

make clear that it was rejecting them on the merits—

and hence with prejudice to refiling them anywhere.

Specifically, the panel deleted its previous reference

to the district court’s jurisdiction and replaced it with

this: “Because we hold that the Fifth Amendment

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

Fourteenth Amendment does not provide a right of

action for takings claims against a [S]tate, we VACATE the district court’s decision and REMAND for

further proceedings.” Devillier v. Texas, 53 F.4th 904

(5th Cir. 2023) (per curiam) (footnote omitted). The

panel left unchanged its footnoted reference to a

Bivens case and a Ninth Circuit decision from 1992.

See id. at 904 n.1. And it again refused even to discuss a single one of the myriad Takings Clause cases

or arguments proffered by the plaintiffs and the Institute for Justice.

II.

This appeal should’ve begun and ended with

the State’s decision to remove to federal court under

28 U.S.C. § 1441. That’s for two reasons.

First, the State’s decision to remove obviously

constitutes a waiver of its sovereign immunity. See

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535

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

that federal takings plaintiffs are free to bring their

claims in federal court in the first instance. See Knick

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

(overruling Williamson Cnty. Reg’l Plan. Comm’n v.

73a

Hamilton Bank, 473 U.S. 172 (1985)). That decision

created newfound attention on the question of

whether States enjoy sovereign immunity against

post-Knick takings claims. See, e.g., Bay Point Props.,

Inc. v. Miss. Transp. Comm’n, 937 F.3d 454 (5th Cir.

2019). But cases like Bay Point concern takings

claims brought originally in federal court against

non-consenting States. Regardless of whether the

State can assert sovereign immunity when it’s haled

into federal court against its will for taking property,

Lapides says the State cannot assert sovereign

immunity after the State chooses the federal forum

by filing a notice of removal.

Second, the State removed under § 1441 on the

theory that plaintiffs’ claims “arise under” federal

law. But as Justice Holmes put it more than a century ago, “[a] suit arises under the law that creates

the cause of action.” Am. Well Works Co. v. Layne &

Bowler Co., 241 U.S. 257, 260 (1916). That means, as

a general matter, suits are removable under § 1441

only when federal law creates the cause of action:

[A] federal court does not have original

jurisdiction over a case in which the

complaint presents a state-law cause of

action. . . . For better or worse, under the

present statutory scheme as it has existed since 1887, a defendant may not

remove a case to federal court unless the

plaintiff’s complaint establishes that the

case “arises under” federal law. A right

or immunity created by the Constitution

or laws of the United States must be an

74a

element, and an essential one, of the

plaintiff’s cause of action.

Franchise Tax Bd. of State of Cal. v. Constr. Laborers

Vacation Tr. for S. Cal., 463 U.S. 1, 10–11 (1983)

(quotations and footnote omitted).

Consider, for example, Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986). In that

case, the plaintiff brought a state tort action predicated on the allegation that a drug company violated

a federal misbranding standard. The drug company

tried to remove on the theory that the federal misbranding standard was an essential element to plaintiff’s cause of action and obviously appeared on the

face of the complaint. See Louisville & Nashville R.R.

Co. v. Mottley, 211 U.S. 149, 152–53 (1908). The Supreme Court held the action was not removable because to hold otherwise would “flout” Congress’s decision not to create a federal cause of action for such

misbranding claims. Merrell Dow, 478 U.S. at 812.

Because the State—and only the State—created the

plaintiff’s cause of action, the Court held the suit had

to stay in state court. The fact that the entirety of the

case was predicated on a federal misbranding standard was irrelevant. 1

1 There are exceptions to the rule that §§ 1331 / 1441

jurisdiction attaches only where the plaintiff raises a cause of

action created by federal law. See, e.g., Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). But see

id. at 320–21 (Thomas, J., concurring) (urging the Court to return to the simplicity of the American Well Works rule). The

State, as the party invoking federal jurisdiction, has never

urged such exceptions, however. See Ctr. for Biological Diversity

75a

The State’s decision to invoke § 1441 means

one of two things must be true. First, federal law

gives the plaintiffs a federal cause of action to litigate

their federal takings claims, and hence the suit arises

under federal law—as the State effectively conceded

in its notice of removal. If that’s true, the opinion

written by the magistrate judge and adopted by the

district court was correct and should be affirmed.

Second, and alternatively, federal law does not

give plaintiffs a cause of action to litigate their federal takings claims—as the panel opinion concluded

in its one-paragraph opinion. It’s true, after all, that

§ 1983 does not supply a cause of action to sue the

State under Will, and in the absence of another federal cause of action, 2 that might mean plaintiffs are

left exclusively with state-law claims. In that case,

however, the correct outcome is to remand plaintiffs’

takings claims to state court because we have no arising-under jurisdiction to hear the claims. See Franchise Tax Bd., 463 U.S. at 8 (“If it appears before final

judgment that a case was not properly removed, because it was not within the original jurisdiction of the

United States district courts, the district court must

v. EPA, 937 F.3d 533, 542 (5th Cir. 2019) (“Arguments in favor

of standing, like all arguments in favor of jurisdiction, can be

forfeited or waived.”).

2 It’s unclear that plaintiffs do not have another federal

cause of action. For example, it’s unclear why plaintiffs’ demand

for injunctive relief does not trigger our en banc holding that

plaintiffs can use Ex Parte Young as a cause of action even when

they cannot use § 1983. See Green Valley Special Util. Dist. v.

City of Schertz, Tex., 969 F.3d 460, 475 (5th Cir. 2020) (en banc)

(citing Ex parte Young, 209 U.S. 123, 149 (1908)). But see id. at

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

76a

remand it to the state court from which it was removed.” (emphasis added)).

The panel tried to follow this second route in

its first opinion. It said: “[W]e VACATE the district

court’s decision for want of jurisdiction and REMAND with instructions to return this case to the

state courts.” Devillier, No. 21-40750, 2022 U.S. App.

LEXIS 32519, at *1 (emphases added). But then the

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

precedent makes clear that lack of a cause of action

is not a jurisdictional defect.” Texas Pet. for Reh’g at

5 (citing, inter alia, Steel Co. and Bell v. Hood). So the

panel amended its decision to say:

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

thus a merits determination and hence a withprejudice dismissal. See Steel Co., 523 U.S. at 88–89.

But § 1441 precludes this disposition of the

case. We cannot affirm the exercise of federal jurisdiction because plaintiffs’ claims arise under federal

law and then dismiss the claims with prejudice because plaintiffs’ claims arise under state law. The

panel’s contrary holding means plaintiffs’ claims are

gone forever. See, e.g., WRIGHT & MILLER, supra, §

4439 (“[D]ismissal for failure to state a claim precludes a second action that presents the same claim

through a better complaint.”).

77a

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

has staggering implications because it renders federal takings claims non-cognizable in any court at

any time ever. Under the old Williamson County regime, before Knick overruled it, plaintiffs were forced

to litigate their federal takings claims in state court.

And the only federal review a property owner could

get was from the Supreme Court exercising its certiorari jurisdiction under 28 U.S.C. § 1257 to review

the state court’s treatment of the Takings Clause. See

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

that route, sued their States in state court, and then

obtained review in the Supreme Court under § 1257.

See, e.g., Murr v. Wisconsin, 137 S. Ct. 1933, 1941–42

(2017); Stop the Beach Renourishment, Inc. v. Fla.

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

Palazzolo v. Rhode Island, 533 U.S. 606, 615–16

(2001); Lucas v. S.C. Coastal Council, 505 U.S. 1003,

1009–10 (1992); Nollan v. Cal. Coastal Comm’n, 483

U.S. 825, 829–31 (1987).

The plaintiffs in this case attempted to litigate

their claims in state court—just as the plaintiffs did

in Murr, Stop the Beach, Palazzolo, Lucas, and Nolan. And obviously the plaintiffs didn’t need a federal

cause of action to do that; the state courts are full of

litigants who do not have federal causes of action.

And even without a federal cause of action, the plaintiffs could’ve litigated their federal takings claims all

the way through the state court system and then

gone to the Supreme Court of the United States under § 1257—just as the plaintiffs did in Murr, Stop

the Beach, Palazzolo, Lucas, and Nolan. That’s

78a

because the Supreme Court can exercise its § 1257

jurisdiction to review federal issues decided by state

courts even if the petitioner lacks a federal cause of

action and hence could not satisfy the inferior federal

courts’ arising-under jurisdiction. See Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d 317, 324 (1st Cir.

2001) (Boudin, C.J.) (“The Supreme Court is entitled

to review a state-court decision that decides a federal

issue even if the action is one that could not have

been brought in a federal district court under statutory ‘arising under’ jurisdiction.”). A Supreme Court

certiorari petition provides relatively little federal

protection for a federal takings claim, which is one

reason the Supreme Court overturned Williamson

County. But at least it was something.

The panel decision reduces the Takings Clause

to nothing. Think about what now happens when

landowners in our Circuit have their property taken

by the State. The landowner can try to bring a federal

takings claim in state court; the State removes; the

federal court must assert jurisdiction and dismiss the

claim with prejudice under the panel’s published decision in this case. Likewise if the landowner tries to

bring suit originally in federal district court. So the

landowner now has only two choices—both of which

render the Takings Clause a dead letter. The landowner can abandon the federal claim and sue solely

under state law in state court—as if the People never

bothered to ratify the federal Takings Clause in the

first place. Of course, as the Institute for Justice

pointed out in its inexplicably rejected amicus brief,

that does nothing for landowners in Louisiana because that State does not afford its citizens a state-

79a

law takings remedy. See IJ Amicus Br. at 9–10 (citing

Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans,

29 F.4th 226, 228 (5th Cir. 2022) (“[S]ince Louisiana

courts lack the power to force another branch of government to make an appropriation, the prevailing

plaintiff has no judicial mechanism to compel the defendant to pay. The plaintiff who succeeds in an action against a governmental unit thus becomes a supplicant, relying on the grace of the government to appropriate funds to satisfy her judgment.” (quotation

omitted))). A Louisiana landowner must instead “rely

exclusively upon the generosity of the judgment

debtor.” Ariyan, 29 F.4th at 232 (quotation omitted).

The landowner’s only other alternative is to ask the

Supreme Court to reverse us.

Finally, under the panel’s decision, the federal

Due Process Clause claims pending in federal district

court fail too. After all, plaintiffs cannot use § 1983 to

raise those claims either. So the panel has held that

all of plaintiffs’ federal constitutional claims arise

under federal law for purposes of allowing the State

to remove but arise under state law for purposes of

the merits. That is transparently wrong. And it requires dismissing all of plaintiffs’ claims with prejudice to refiling anywhere even if the claims are correct on the merits.

III.

Now let’s talk about the merits. The State’s position, adopted by the panel, is that claims under the

Takings Clause can be raised only under § 1983. I am

80a

not sure how § 1983 and the Supreme Court’s implied-rights-of-action cases apply in this area. But I

am sure of three things: (A) the panel’s decision reflects a deeply ahistorical understanding of takings

litigation in our Nation; (B) the Supreme Court in

First English specifically rejected the Solicitor General’s contention that Takings Claims are actionable

only under § 1983 or some other federal statutory

cause of action; and (C) these issues plainly warranted some discussion in the panel’s opinion—which

ignored all of them.

A.

At the Founding, it was clear that the Takings

Clause afforded a remedy for uncompensated takings

separate and apart from any statute. For example, in

proposing the Takings Clause as part of the Bill of

Rights, James Madison emphasized that federal

courts would enforce the clause directly: “independent tribunals of justice will consider themselves in a

peculiar manner the guardians of those rights . . . .”

James Madison, Amendments to the Constitution

(June 8, 1789), in 12 THE PAPERS OF JAMES MADISON

197, 207 (Charles F. Hobson et al. eds., 1979) [MADISON PAPERS]; see also William Michael Treanor, The

Original Understanding of the Takings Clause and

the Political Process, 95 Colum. L. Rev. 782, 794–95

& n.69 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak

Nor Obtuse, 88 COLUM. L. REV. 1630, 1660–61 &

nn.158–61 (1988). Thus in his famous essay, Property, Madison emphasized that the Constitution itself

81a

protected property owners from uncompensated takings:

If there be a government then which

prides itself in maintaining the inviolability of property; which provides that

none shall be taken directly even for

public use without indemnification to

the owner, and yet directly violates the

property which individuals have in their

opinions, their religion, their persons,

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

actual possessions, in the labor that acquires their daily subsistence, and in

the hallowed remnant of time which

ought to relieve their fatigues . . . such a

government is not a pattern for the

United States.

James Madison, Property, NAT’L GAZETTE (Mar. 27,

1792), reprinted in 14 MADISON PAPERS, supra, at

266, 267–68.

Still, the Marshall Court held that the Takings

Clause applied only to takings by the federal government and not to takings by the States. See Barron v.

Baltimore, 32 U.S. (7 Pet.) 243, 250–51 (1833) (Marshall, C.J.). And even as to takings by the federal government, Congress chose to remedy them with “private” acts before the Civil War. See RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER, &

DAVID L. SHAPIRO, HART & WECHSLER’S THE FEDERAL

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COURTS AND THE FEDERAL SYSTEM 897 (7th ed. 2015)

[HART & WECHSLER]. “While Congress was the forum

for takings claims, it did not have discretion to deny

takings claims mandated by the Takings Clause.”

Treanor, supra, at 794 n.69. Rather, early Congresses’ approach to paying for taken property apparently derived from their views about sovereign immunity rather than any doubt that the Fifth Amendment, standing alone, required a just-compensation

remedy for takings. HART & WECHSLER, supra, at

896–97. As the Supreme Court put it in citing cases

going back to 1837:

By this legislation congress seems to

have assumed the right to determine

what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may

determine what private property is

needed for public purposes; that is a

question of a political and legislative

character. But when the taking has been

ordered, then the question of compensation is judicial. It does not rest with the

public, taking the property, through

congress or the legislature, its representative, to say what compensation

shall be paid, or even what shall be the

rule of compensation. The constitution

has declared that just compensation

shall be paid, and the ascertainment of

that is a judicial inquiry.

83a

Monongahela Navigation Co. v. United States, 148

U.S. 312, 327 (1893) (citing, inter alia, Proprietors of

Charles River Bridge v. Proprietors of Warren Bridge,

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

And starting at the Founding, federal courts

entertained suits arising from uncompensated takings by States. The first Congress enacted two statutes—the Process Acts of 1789 and 1792—that directed inferior federal courts to borrow common-law

causes of action from the States where they sat. See

Act of Sept. 29, 1789, ch. 21, 1 Stat. 93; Act of May 8,

1792, ch. 36, 1 Stat. 275; Anthony J. Bellia, Jr. &

Bradford R. Clark, The Original Source of the Cause

of Action in Federal Courts: The Example of the Alien

Tort Statute, 101 Va. L. Rev. 609, 627–28 (2015). As

a result, federal courts adjudicated a whole host of

takings-related claims under various causes of action. See, e.g., Van Horne’s Lessee v. Dorrance, 2 U.S.

(2 Dall.) 304, 310 (C.C.D. Pa. 1795); Fairfax’s Devisee

v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1812);

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

Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 52 (1815);

Green v. Biddle, 21 U.S. 1 (1823); Bonaparte v. Camden & A.R. Co., 3 F. Cas. 821, 831 (C.C.D. N.J. 1830)

(No. 1617); Yates v. Milwaukee, 77 U.S. (10 Wall.)

497, 507 (1870). Undoubtedly, federal courts played

a “robust role in protecting property rights against

states and local encroachments well before the advent of the Fourteenth Amendment.” Ann Woolhandler & Julia D. Mahoney, Federal Courts and

Takings Litigation, 97 NOTRE DAME L. REV. 679, 686

(2022).

84a

It’s unclear why Congress’s enactment of §

1983 in 1871 could somehow strip federal courts of

their powers to hear takings claims. See Woolhandler

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

incorporation of the Takings Clause in 1897, federal

courts continued to hear state takings claims without

mention of § 1983. See Pumpelly, 80 U.S. 166; Miss.

& Rum River Boom Co. v. Patterson, 98 U.S. (8 Otto)

403 (1878); N. Transp. Co. v. City of Chicago, 99 U.S.

(9 Otto) 635 (1878); Hollingsworth v. Parish of

Tensas, 17 F. 109 (C.C.W.D. La. 1883); Pac. R.R. Removal Cases, 115 U.S. 1, 5–6 (1885); Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S.

226, 238–41 (1897) (incorporating the Takings

Clause).

Post-incorporation, federal courts adjudicated

these claims under the Constitution directly, and

plaintiffs did not need to (nor did they) invoke § 1983.

See, e.g., Village of Norwood v. Baker, 172 U.S. 269,

277 (1898) (“The plaintiff’s suit proceeded upon the

ground, distinctly stated, that the assessment in

question was in violation of the fourteenth amendment . . . . It has been adjudged that the due process

of law prescribed by that amendment requires compensation to be made or secured to the owner when

private property is taken by a state, or under its authority, for public use.”); Cuyahoga River Power Co.

v. City of Akron, 240 U.S. 462 (1916); Del., L. & W.R.

Co. v. Town of Morristown, 276 U.S. 182 (1928); Village of Euclid v. Ambler Realty Co., 272 U.S. 365

(1926); Dohany v. Rogers, 281 U.S. 362 (1930).

85a

The Court has not only entertained claims

outside of the § 1983 cause of action, but it has also

stated that Congress cannot render the Takings

Clause unenforceable by failing to create an

independent cause of action. As the Court said onehundred years ago in 1923, “[j]ust compensation is

provided for by the Constitution and the right to it

cannot be taken away by statute.” Seaboard Air Line

Ry. Co. v. United States, 261 U.S. 299, 304 (1923).

And as the Court specified in 1933:

The suits were based on the right to recover just compensation for property

taken by the United States for public use

in the exercise of its power of eminent domain. That right was guaranteed by the

Constitution. . . . The form of the remedy

did not qualify the right. It rested upon

the Fifth Amendment. Statutory recognition was not necessary. . . . The suits

were thus founded upon the Constitution

of the United States.

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

The Court affirmed the self-executing nature

of the Fifth Amendment again and again throughout

the twentieth century. See, e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles

County, Cal., 482 U.S. 304, 315 (1987) (holding that

the Fifth Amendment doesn’t just create a right but

“necessarily implicates the constitutional obligation

to pay just compensation” in the event of a taking and

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that the “self-executing character of the constitutional provision” bestows a landowner with a cause

of action (quotation omitted) (emphasis added));

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

5 (1984) (When ousted by the United States, “the

owner has a right to bring an inverse condemnation

suit to recover the value of the land on the date of the

intrusion by the Government.” (quotation omitted));

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

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

character of the constitutional provision with respect

to compensation.” (quotation omitted)); Dickinson,

331 U.S. at 748 (“But whether the theory of these

suits be that there was a taking under the Fifth

Amendment, and that therefore the Tucker Act may

be invoked because it is a claim founded upon the

Constitution, or that there was an implied promise

by the Government to pay for it, is immaterial. In either event, the claim traces back to the prohibition of

the Fifth Amendment . . . .”); United States v. Causby,

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

claim is founded upon the Constitution . . . .” (quotation omitted)).

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

another reminder as recently as 2019. See Knick, 139

S. Ct. at 2171 (“Because of ‘the self-executing character’ of the Takings Clause ‘with respect to compensation,’ a property owner has a constitutional claim for

just compensation at the time of the taking.” (quoting

First English, 482 U.S. at 315)). And Knick reaffirmed: “Jacobs made clear that, no matter what sort

of procedures the government puts in place to remedy

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a taking, a property owner has a Fifth Amendment

entitlement to compensation as soon as the government takes his property without paying for it.” Id. at

2170.

B.

The State of Texas is not the first party to try

this § 1983-or-bust approach to the Takings Clause.

In First English, the United States filed an amicus

brief on behalf of Los Angeles. See Brief for the

United States as Amicus Curiae Supporting Appellee, First English, 482 U.S. 304 (No. 85-1199), 1986

WL 727420. It repeatedly argued that “the Constitution does not, of its own force, furnish a basis for a

court to award money damages against the government,” id. at *14, that “the Takings Clause is strictly

prohibitory and does not, without further legislative

action, mandate a monetary award against the government,” ibid., that the Takings Clause does not

provide a remedy where state law does, id. at *25,

that “the Takings Clause’s prohibition of uncompensated takings does not imply a constitutionally-based

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

has been reluctant to permit a cause of action in federal court directly under the Fourteenth Amendment, unaided by congressional legislation,” id. at

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

has eliminated any need for this Court to explore implicit constitutional remedies to be applied against

governmental bodies acting in the area of local landuse regulation,” id. at *31, and that “[t]here is no occasion to resort to a federal remedy under Section

1983 where the state has made provision for the

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payment of compensation in an action for inverse

condemnation in state court,” id. at *32.

The Solicitor General pointed out that First

English “did not rely on 42 U.S.C. 1983 in the California courts; nor has it done so in this Court.” Id. at

*32 (emphasis added). The Solicitor General contended that this failure was fatal to the Court’s ability to reach the merits of the takings issue because,

in the Government’s view, § 1983 was the sine qua

non to both jurisdiction and the merits. See id. at *7–

8 (arguing First English failed to plead a federal issue necessary for the Supreme Court’s appellate jurisdiction); id. at *9 (emphasizing Court should “be

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

the Court to dismiss for lack of jurisdiction, the Solicitor General further argued that First English’s failure to invoke § 1983 put the case in an “uninviting

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

practice.” Id. at *9–10.

The Supreme Court was thus squarely presented with the question—in a case where the takings

plaintiff did not rely on § 1983—whether that statutory cause of action is an indispensable prerequisite

for recovering just compensation. And the Supreme

Court emphatically held no. As most relevant here,

the Court said:

The Solicitor General urges that the prohibitory nature of the Fifth Amendment,

combined with principles of sovereign

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

power of the Government to act, not a remedial provision. The cases cited in the

text [including Kirby, Causby, Seaboard

Line, and Monongahela Navigation], we

think, refute the argument of the United

States that ‘the Constitution does not, of

its own force, furnish a basis for a court

to award money damages against the

government.’ Though arising in various

factual and jurisdictional settings, these

cases make clear that it is the Constitution that dictates the remedy for interference with property rights amounting to a

taking.

First English, 482 U.S. at 316 n.9 (emphases added)

(quoting Brief for the United States as Amicus Curiae Supporting Appellee, supra, at *14).

True, many plaintiffs invoke § 1983 to bring

takings claims against defendants (like cities and

counties) that are amenable to suit under that statute. After all, a § 1983 claim carries with it the promise of fees under 42 U.S.C. § 1988. And many of the

defendants that take property are suable under §

1983. But the popularity of § 1983 claims does not

imply that § 1983 is plaintiffs’ only avenue for relief.

Indeed, First English specifically rejected the State’s

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

would be surprising (to say the least) if Congress’s

enactment of § 1983—which expanded the remedies

for constitutional violations—somehow eliminated

90a

plaintiffs’ well-established rights, existing since the

dawn of the Republic, to vindicate their federal rights

against non-§ 1983 defendants (like States).

C.

Takings litigation has a rich history in our Nation, separate and apart from any statute. And the

Supreme Court has said that the Takings Clause provides a remedy to property owners, separate and

apart from any statute. So if we’re going to say that

it’s § 1983 or the (ahem) highway, we have an awful

lot of explaining to do. Way more than the panel’s one

sentence. And all of the explanation in the world cannot justify holding that plaintiffs’ federal takings

claims are not cognizable in any court at any time.

The panel’s disposition of this case is far worse

than the bad-old days of Williamson County. The Williamson County regime made it impossible to bring

suit in federal court against States (or any other defendant) for taking property in violation of the Takings Clause. Rather, the Court held that all federal

takings claims must be brought in state court—subject to review, if at all, only in the Supreme Court on

certiorari. See Williamson County, 473 U.S. at 194–

97. The panel decision in our case appears to embrace

that same result: Yes, plaintiffs who lost land alongside IH-10, you have a federal right under the Takings Clause, but no, it cannot be vindicated in the inferior federal courts.

91a

But two points about this Williamson-Countyrevivified holding bear emphasis. First, the Supreme

Court overturned Williamson County in Knick, and

it’s not our prerogative to say otherwise. See Knick,

139 S. Ct. at 2179. And second, the panel’s decision

is even worse than Williamson County because under

today’s decision, plaintiffs who sue in state court can

have their cases removed and dismissed before any

court ever passes on the merits.

IV.

Given the terseness of the panel’s disposition,

it’s hard to know for sure what all went into its two

decisions. It’s also hard to know why the panel did

not cite the Supreme Court’s takings precedents,

much less explain them away. Today, two members

of the panel issue comparatively scopious opinions to

defend the rejection of plaintiffs’ claims. There are at

least five problems with this post hoc approach (in

addition to the others referenced above).

A.

First, the parties have a right to know why

their claims are being adjudicated on the merits and

barred from refiling in any court at any time. And

they have a right to know that before their time for

seeking rehearing expires—to say nothing of the time

for petitioning the Supreme Court for certiorari. But

in this case the parties cross-moved for rehearing, a

putative amicus sought to participate in rehearing,

and all of the motions were denied before they had

92a

any understanding of why. What’s worse, the plaintiffs even had to file their petition for certiorari before

they had an explanation for why their claims were

adjudicated on the merits and subjected to res judicata. See Petition for Writ of Certiorari, Devillier v.

Texas (No. 22-913). And it is little comfort to say the

plaintiffs had the panel opinion’s lonely paragraph of

explanation, which pales in comparison to what we

offer (for example) in single-judge opinions for pro se

litigants who request a certificate of appealability.

See, e.g., Faye v. Vannoy, No. 17-30809, 2018 WL

11446637, at *1 (5th Cir. Nov. 7, 2018).

B.

Second, the most telling thing about today’s

concurring opinions is what they do not say. Neither

offers a single word of explanation, rebuttal, or disagreement with Part II of this dissent. That is, our en

banc court apparently agrees that (1) plaintiffs’

claims arise under federal law for purposes of making

them removable under 28 U.S.C. § 1441; (2) plaintiffs’ claims nonetheless do not arise under federal

law for purposes of the merits; and (3) plaintiffs’

claims are forever barred from refiling anywhere.

C.

Third, JUDGE HIGGINSON says the panel footnoted a Bivens case because, in its view, this is a case

about “implied cause[s] of action.” Ante, at 9 (Higginson, J., concurring). But the fact that the Fourth

Amendment does not specify a remedy for the illegal

93a

search-and-seizure of Webster Bivens doesn’t say anything about the Fifth Amendment’s very specific

remedy for the unconstitutional taking of plaintiffs’

land. And the Supreme Court has repeatedly admonished that takings claims—and plaintiffs’ entitlements to “just compensation”—exist independent of

any statute. See, e.g., First English, 482 U.S. at 315–

16 & n.9; Seaboard Air Line Ry., 261 U.S. at 304. The

Court has never said anything even close to that

about the Fourth Amendment. That’s not to say

plaintiffs are necessarily right. It’s just to say that

Bivens doesn’t prove they’re wrong.

Moreover, the panel’s footnoted analogy to

Bivens does nothing to confront one of the most profound truths in all of constitutional law and federal

courts: “The constitutional text refers to only two

remedies: (1) a right to just compensation for takings

and (2) the privilege of the writ of habeas corpus.”

HART & WECHSLER, supra, at 330. That sets these

two constitutional rights apart from others and at

least suggests these two rights—even if not all others

in the Constitution—have special protections against

congressional abrogation or dereliction. Cf. Battaglia

v. Gen. Motors Corp., 169 F.2d 254 (2d Cir. 1948) (analyzing congressional effort to deny any forum, state

or federal, to raise a constitutional claim). Indeed,

the Court has held that the Constitution’s protection

for habeas corpus rendered invalid a congressional

restriction on federal jurisdiction for habeas claims.

See Boumediene v. Bush, 553 U.S. 723 (2008); HART

& WECHSLER, supra, at 338 (“Boumediene is the only

Supreme Court decision clearly holding that a congressional enactment restricting jurisdiction—in

94a

that case, of both federal and state courts—is unconstitutional.”). Yet the panel’s decision in this case denies any forum—state or federal—to the only other

constitutionally guaranteed remedy of just compensation. So the monumental questions of constitutional law and federal courts posed by this case cannot be avoided by analogizing to Bivens.

And even if the cause of action is “implied,”

Bivens still is the wrong framework. See ante, at 11

n.1 (Higginson, J., concurring). The cause of action

for takings claims pre-dated Bivens by over a hundred years and traces its lineage all the way to the

Founding. It therefore cannot be dismissed as “judicial genesis” of the same sort that begat Bivens. Ibid.

D.

Fourth, JUDGE HIGGINSON’S reliance on Maine

Community Health Options v. United States, 140 S.

Ct. 1308 (2020), is misplaced. That case involved a

statutory right of action under the Tucker Act for takings claims against the federal government. See id.

at 1331. But it said nothing about situations like this

one where Congress does not enact a statutory cause

of action. In fact, the Court expressly declined to decide whether plaintiffs could bring their claims under

the Takings Clause because the Tucker Act provided

them with just compensation: “Having found that the

Risk Corridors statute is a money-mandating provision for which a Tucker Act suit lies, we need not resolve petitioners’ alternative arguments for recovery

based on an implied-in-fact contract theory or under

95a

the Takings Clause.” Id. at 1331 n.15. And faced with

no statutory cause of action in First English, the

Court did decide that the Takings Clause provided

an independent cause of action. See 482 U.S. at 315–

16; see Part III.B, supra.

E.

Fifth and finally, JUDGE HIGGINBOTHAM suggests the panel referenced the Texas Supreme Court

because it thinks federal takings claims are cognizable in Texas’s courts but not ours. Ante, at 4 (Higginbotham, J., concurring). There are at least three

problems with that.

First, as explained in Part II, supra, plaintiffs

cannot relitigate their claims in state court. They

have been adjudicated on the merits here. So the case

is now over. And by exerting § 1441 jurisdiction, the

panel has allowed States to remove federal takings

claims from state court—thus empowering defendants to deprive plaintiffs of the state forum that

JUDGE HIGGINBOTHAM says would otherwise exist.

Second, the Supreme Court has repeatedly

said that the Takings Clause guarantees plaintiffs

just compensation regardless of whether States provide 100% relief in state court or under state law. See,

e.g., Knick, 139 S. Ct. at 2170–71; First English, 482

U.S. at 315, 316 n.9; Jacobs, 290 U.S. at 16; Seaboard, 261 U.S. at 304; Chicago, 166 U.S. at 233–41;

see also Palazzolo, 533 U.S. at 615–17 (Supreme

Court entertaining takings claim against a State

96a

based on the federal Constitution, not state statute);

Woolhandler & Mahoney, supra, at 681 (indicating

that between Reconstruction and the New Deal, federal courts commonly exercised federal question jurisdiction to hear takings claims). Moreover, even if

the State of Texas would otherwise provide a remedy

to Texans who sue in state court and somehow manage to avoid removal of their claims to federal court,

the State of Louisiana does not. See Ariyan, 29 F.4th

at 228. JUDGE HIGGINBOTHAM does not dispute that. 3

And third, just because federal rights can be

vindicated in state court, it does not follow that these

rights cannot be vindicated in federal court. Under

JUDGE HIGGINBOTHAM’S contrary logic, we would be

obligated to dismiss every single § 1983 claim we see

because, after all, state courts must always be open

to them. See Haywood v. Drown, 556 U.S. 729, 739–

40 (2009) (holding that once a State creates a court of

general jurisdiction, as all three of our States have,

the State must hear and adjudicate § 1983 claims).

***

Much more could be said about the evolution of the

federal cause-of-action requirement from the Process

Acts to Ex parte Young to § 1983 and the Takings

Clause. Much more could be said about sovereign immunity and jurisdiction. And much more could be

said about the principles of federalism—including,

3 JUDGE HIGGINSON does dispute it, albeit in a footnote.

See ante, at 15 n.5. But he does so only to dispute that Ariyan

held what it held.

97a

the need to balance federal protection for federal

rights against the State’s eminent domain powers,

the State’s power over property law, and the State’s

dignity as a sovereign in our federal system. It’s a

shame we’re unwilling to consider these important issues en banc. And it’s a shame that property owners

in our circuit can no longer litigate Takings Clause

claims in any forum, state or federal. I respectfully

dissent.