Amicus Curiae Brief — Richard Devillier, et al., Petitioners v. Texas

No. 22-913

In The

Supreme Court of the United States

____________________

RICHARD DEVILLIER, ET AL.,

Petitioners,

v.

STATE OF TEXAS,

____________________

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

____________________

KATHRYN D. VALOIS

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

561.691.5000

KValois@pacificlegal.org

DEBORAH J. LA FETRA

ROBERT H. THOMAS

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

916.419.7111

DLaFetra@pacificlegal.org

RThomas@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

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 self-executing

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

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF

AMICUS CURIAE ................................................... 1

INTRODUCTION AND SUMMARY

OF ARGUMENT ...................................................... 2

ARGUMENT ............................................................... 4

I.

The Fifth Circuit Conflicts With This

Court’s Emphasis That the Fifth

Amendment Is “Self-Executing” ...................... 4

A. The Right to Secure Compensation for a

Taking Is a Fundamental Property Right ..... 4

B. The Fourteenth Amendment Was

Adopted to Protect Civil Rights,

Including Property Rights ............................ 10

II.

This Court Should Resolve the Lower

Court Conflict on the Self-Executing

Nature of the Just Compensation Clause ..... 13

III. The Just Compensation Remedy Presents

Issues of National Importance That Can

Be Resolved Only by This Court.................... 17

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

iii

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 6

Archbold-Garrett v. City of New Orleans,

893 F.3d 318 (5th Cir. 2018) ......................... 15–16

Ariyan Inc. v. Sewerage & Water Board

of New Orleans,

143 S.Ct. 353 (2022) .............................................. 2

Ariyan, Inc. v. Sewerage & Water Bd.

of New Orleans,

29 F.4th 226 (5th Cir. 2022) ................................ 15

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ............................................... 13

Arkansas Game & Fish Comm’n v.

United States,

568 U.S. 23 (2012) ................................................. 1

Armstrong v. United States,

364 U.S. 40 (1960) ................................................. 8

Arrigoni Ent., LLC v. Town of Durham,

136 S.Ct. 1409 (2016) .......................................... 10

Barron v. Mayor & City Council of Baltimore,

32 U.S. (7 Pet.) 243 (1833) .................................. 11

Bay Point Props., Inc. v.

Mississippi Transp. Comm’n,

137 S.Ct. 2002 (2017) .......................................... 18

Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ................................. 12, 14–15

iv

Blanchette v. Connecticut General Ins. Corps.,

419 U.S. 102 (1974) ............................................... 8

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) .................................. 1–4, 17

Chicago, B. & Q. R. Co. v. City of Chicago,

166 U.S. 226 (1897) ............................................... 5

City of Milwaukee Post No. 2874 V.F.W. of U.S. v.

Redev. Auth. of City of Milwaukee,

768 N.W.2d 749 (Wis. 2009), cert. denied,

561 U.S. 1006 (2010) ........................................... 18

Crozier v. Fried. Krupp Aktiengesellschaft,

224 U.S. 290 (1912) ............................................. 10

Davis v. Burke,

179 U.S. 399 (1900) ............................................... 7

Financial Oversight and Management

Board for Puerto Rico v. Cooperative

de Ahorro y Credito Abraham Rosa,

143 S.Ct. 774 (2023) .............................................. 2

First English Evangelical Lutheran Church

of Glendale v. Los Angeles Cnty.,

482 U.S. 304 (1987) ............................... 3, 9–10, 16

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ............................................. 11

Folsom v. City of New Orleans,

109 U.S. 285 (1883) ............................................. 15

Heck v. Humphrey,

512 U.S. 477 (1994) ............................................... 9

Hernandez v. Mesa,

140 S.Ct. 735 (2020) ...................................... 11–12

v

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ........................................... 1, 5

In re City of Stockton,

909 F.3d 1256 (9th Cir. 2018) ....................... 16–17

In re Financial Oversight and Mgmt. Bd.,

41 F.4th 29 (1st Cir. 2022), cert. denied,

143 S.Ct. 774 (2023) ...................................... 13–15

In re John Jay College of Crim. Justice

of City Univ. of N.Y.,

905 N.Y.S.2d 18 (App. Div. 2010),

cert. denied sub nom.,

River Ctr. LLC v. Dormitory Auth. of N.Y.,

566 U.S. 982 (2012) ............................................. 18

Jacobs v. United States,

290 U.S. 13 (1933) ................................................. 8

Kelo v. City of New London,

545 U.S. 469 (2005) ....................................... 16–17

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ...............1, 2, 7–9, 11, 13, 16

Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595 (2013) ............................................... 1

Lapides v. Board of Regents,

535 U.S. 613 (2002) ............................................. 10

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) ......................................... 5, 17

Louisville Joint Stock Land Bank v. Radford,

295 U.S. 555 (1935) ......................................... 8, 14

Medellin v. Texas,

552 U.S. 491 (2008) ............................................... 7

vi

Mitchum v. Foster,

407 U.S. 225 (1972) ............................................. 11

Monell v. Dep’t of Social Services of City of N.Y.,

436 U.S. 658 (1978) ............................................. 14

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) ............................................ 1

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ............................................... 1

Pakdel v. City and Cnty. of San Francisco,

141 S.Ct. 2226 (2021) ............................................ 1

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................... 1

Patsy v. Bd. of Regents of Fla.,

457 U.S. 496 (1982) ............................................... 9

PennEast Pipeline Co., LLC v. New Jersey,

141 S.Ct. 2244 (2021) ............................................ 4

People ex rel. Wanless v. City of Chicago,

378 Ill. 453 (1941) .................................................. 5

Phelps v. United States,

274 U.S. 341 (1927) ............................................... 2

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

San Francisco,

545 U.S. 323 (2005) ............................................. 13

Seaboard Air Line Ry. Co. v. United States,

261 U.S. 299 (1923) ............................................... 4

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ............................................... 1

United States v. 50 Acres of Land,

469 U.S. 24 (1984) ............................................... 18

vii

United States v. Clarke,

445 U.S. 253 (1980) ........................................... 2, 7

United States v. Commodities Trading Corp.,

339 U.S. 121 (1950) ............................................... 8

United States v. General Motors Corp.,

323 U.S. 373 (1945) ............................................. 17

United States v. Miller,

317 U.S. 369 (1943) ............................................... 5

United States v. Security Industrial Bank,

459 U.S. 70 (1982) ................................................. 8

Weinstein, Bronfin & Heller v. LeBlanc,

192 So.2d 130 (La. 1966) ....................................... 6

Other Authorities

Amar, Akhil Reed, The Bill of Rights:

Creation and Reconstruction (1998) ................... 11

Grant, Eric, A Revolutionary View

of the Seventh Amendment and

the Just Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) ................................ 9

Jones, Dan,

Magna Carta – The Birth of Liberty (2015) .......... 4

Magna Carta art. XXVIII (1215) ................................ 4

1 Tribe, Laurence H., American

Constitutional Law (3d ed. 2000) .......................... 3

1

IDENTITY AND INTEREST

OF AMICUS CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit, taxexempt corporation organized for the purpose of

litigating matters affecting the public interest in

private property rights, individual liberty, and

economic freedom. Founded 50 years ago, PLF is the

most experienced legal organization of its kind. PLF

attorneys have participated as lead counsel in

numerous landmark United States Supreme Court

cases generally in defense of the right to make

reasonable use of property and the corollary right to

obtain just compensation when that right is infringed.

See, e.g., Cedar Point Nursery v. Hassid, 141 S.Ct.

2063 (2021); Pakdel v. City and Cnty. of San

Francisco, 141 S.Ct. 2226 (2021); Knick v. Twp. of

Scott, 139 S.Ct. 2162 (2019); Murr v. Wisconsin, 137

S.Ct. 1933 (2017); Koontz v. St. Johns River Water

Mgmt. Dist., 570 U.S. 595 (2013); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Suitum v. Tahoe Reg’l

Plan. Agency, 520 U.S. 725 (1997); Nollan v.

California Coastal Comm’n, 483 U.S. 825 (1987). PLF

also routinely participates in important property

rights cases as amicus curiae. See, e.g., Horne v. Dep’t

of Agric., 576 U.S. 350 (2015); Arkansas Game & Fish

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

Additionally, PLF attorneys have extensive

experience with the question here, having advocated

1 Pursuant to Rule 37.2, PLF provided timely notice to all parties.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

for the Takings Clause’s self-executing nature several

times. See, e.g., Ariyan Inc. v. Sewerage & Water

Board of New Orleans, 143 S.Ct. 353 (2022); Financial

Oversight and Management Board for Puerto Rico v.

Cooperative de Ahorro y Credito Abraham Rosa, 143

S.Ct. 774 (2023).

INTRODUCTION AND

SUMMARY OF ARGUMENT

When government takes, it must compensate. This

is the plain meaning of the Fifth Amendment’s

fundamental limitation on sovereign power, as this

Court has repeatedly, and recently, emphasized. See

Cedar Point, 141 S.Ct. at 2077 (Government’s

obligation to compensate owners when it takes

property is not an “empty formality, subject to

modification at the government’s pleasure.”); Phelps v.

United States, 274 U.S. 341, 343 (1927) (“Under the

Fifth Amendment plaintiffs were entitled to just

compensation ... the claim is one founded on the

Constitution.”). This petition asks what it means

when this Court describes the Fifth Amendment’s

Just Compensation Clause as “self-executing.” See,

e.g., Knick, 139 S.Ct. at 2171 (“Because of the selfexecuting 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.”) (cleaned up, citation 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”) (cleaned up, citation omitted). At

the very least, it means that the Constitution itself

recognizes the right, and most importantly

3

establishes the remedy when the government fails to

live up to its constitutional obligations. See Cedar

Point, 141 S.Ct. at 2077 (Government’s obligation to

compensate owners when it takes property is not an

“empty formality, subject to modification at the

government’s pleasure.”).

Consequently, because neither Congress nor a

state legislature need agree to pay compensation, they

do not need to adopt an implementing statute—and no

waiver of sovereign immunity is necessary—for a

plaintiff to invoke the judiciary’s authority to enforce

the Constitution and impose a remedy. That is, if

Congress repealed Section 1983 tomorrow, the

constitutional mandate for just compensation

remains. Or as this Court has put it, the Just

Compensation Clause “of its own force” “furnish[es] a

basis for a court to award money damages against the

government[.]” First English Evangelical Lutheran

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

316 n.9 (1987) (quotation omitted). See 1 Laurence H.

Tribe, American Constitutional Law § 6-38, at 1272

(3d ed. 2000) (observing, based on First English, that

the Takings Clause “trumps state (as well as federal)

sovereign immunity”). The Constitution’s plain text,

which acknowledges the fundamental right to just

compensation when one’s property is pressed into

public service, would be deprived of its power and

meaning should the executive and the legislature

need first to agree to be bound by this essential

limitation on all free governments.

This Court should resolve the confusion among

lower courts by granting certiorari and holding that

the Just Compensation Clause is self-executing and

states may not immunize themselves from the

4

constitutional mandate to pay just compensation. See

Seaboard Air Line Ry. Co. v. United States, 261 U.S.

299, 304 (1923) (“Just compensation is provided for by

the Constitution and the right to it cannot be taken

away by statute.”); PennEast Pipeline Co., LLC v. New

Jersey, 141 S.Ct. 2244, 2258−59 (2021) (Eleventh

Amendment does not bar eminent domain suits by

private delegatees of the federal government against

nonconsenting states). The petition should be granted.

ARGUMENT

I. The Fifth Circuit Conflicts With This Court’s

Emphasis That the Fifth Amendment Is

“Self-Executing”

A.

The Right to Secure Compensation

for a Taking Is a Fundamental

Property Right

This Court has long recognized that property

rights are “necessary to preserve freedom[.]” Cedar

Point, 141 S.Ct. at 2071. The core nature of the right

to be actually compensated is reflected in its lineage—

as long as any in Anglo-American law. Over eight

centuries ago, suffering under the practice of

purveyance—where the Crown “took goods, crops,

horses, and carts for the king’s use without (or

intending to pay) for them” 2—the barons forced King

John to promise to provide compensation. See Magna

Carta art. XXVIII (1215), quoted in Jones, supra, at

209. This was not an unenforceable promise, but one

with a potent enforcement mechanism: if John failed

to live up to these promises, the barons could abandon

their feudal obligations and revolt. History tells us

that they did just that, after John almost immediately

2 Dan Jones, Magna Carta – The Birth of Liberty 138 (2015).

5

repudiated his promises. See Horne v. Dep’t of Agric.,

576 U.S. 350, 358–59 (2015) (the “categorical” duty to

pay just compensation “goes back at least 800 years to

Magna Carta” and the Takings Clause was included

in the Bill of Rights in part because of Revolutionary

War property seizures).

Just compensation lies at the heart of property

rights, and this Court has emphasized its central role.

See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S.

226, 241 (1897) (just compensation was the first right

in the Bill of Rights “incorporated” against states

under the Fourteenth Amendment); Lingle v. Chevron

U.S.A., Inc., 544 U.S. 528, 536–37 (2005) (“As its text

makes plain, the Takings Clause … ‘is designed not to

limit governmental interference with property rights

per se, but rather to secure compensation in the event

of otherwise proper interference amounting to a

taking.’”) (citation omitted). The sole measure of

justice for most takings is compensation. People ex rel.

Wanless v. City of Chicago, 378 Ill. 453, 459 (1941) (“It

must be remembered that a landowner whose

property is taken or damaged for public use through

the exercise of the power of eminent domain is an

involuntary creditor who has no right to prevent the

city from taking or damaging his property.”).

Compensation is meant to indemnify—the “full

and perfect equivalent” for property taken. United

States v. Miller, 317 U.S. 369, 373 (1943) (“The owner

is to be put in as good position pecuniarily as he would

have occupied if his property had not been taken.”)

(citation omitted). But the “justness” of compensation

is not only the value of the property taken, but

includes how and when it is paid. The right to obtain

compensation when the government fails to proffer it

6

reflects the normative (and intuitive) expectation that

if property must be appropriated and surrendered to

a public use, the owner has the right to pursue judicial

relief to be made whole.

The syntax of Magna Carta’s “takings clause” (“no

constable shall take [property] … without immediate

payment”) is familiar, because the Fifth Amendment

is phrased similarly (“nor shall private property be

taken … without just compensation”). These plain

terms obligate government to provide just

compensation when it takes property for public use,

and uncompensated takings are beyond the powers of

free governments. Unique among the Bill of Rights,

the Just Compensation Clause acknowledges in the

constitutional text the limitations on government

power—and most importantly sets forth the remedy if

government should fail to abide by these limitations.

Whether this provision is viewed as recognizing that

a taking without compensation is beyond the

legitimate power of government, or as a constitutional

waiver of sovereign immunity, 3 the result is the same:

when government takes property, it is obligated to

provide just compensation. If it does not, property

owners are entitled to seek compensation themselves

without additional government permission.

“Sovereign immunity,” government’s common-law immunity

from civil lawsuits, describes a “fundamental aspect of the

sovereignty which the States enjoyed before the ratification of

the Constitution.” Alden v. Maine, 527 U.S. 706, 713 (1999). For

this reason, government may not be sued without its consent.

Weinstein, Bronfin & Heller v. LeBlanc, 192 So.2d 130, 132 (La.

1966) (The “basic premise of this proposition that the State does

enjoy immunity from suit and may not be sued without its

consent .… derives from and is inherent in the most elementary

concepts of governmental sovereignty[.]”).

3

7

Thus, this Court has consistently described the

Just Compensation Clause as “self-executing,”

meaning that no additional acquiescence or

authorization is necessary to enforce the

compensation requirement. This means that no

further action by the government is a necessary

predicate to enforcing the right, nor is a waiver of

sovereign immunity, nor an enabling statute. Thus,

an owner whose property has been taken is entitled to

seek compensation without invoking any particular

statute or state court procedures. See, e.g., Knick, 139

S.Ct. at 2171; Clarke, 445 U.S. at 257.

The term “self-executing” implies an enforceable

right. Davis v. Burke, 179 U.S. 399, 403 (1900) (“‘A

constitutional provision may be said to be selfexecuting if it supplies a sufficient rule by means of

which the right given may be enjoyed and protected,

or the duty imposed may be enforced; and it is not selfexecuting when it merely indicates principles, without

laying down rules by means of which those principles

may be given the force of law.’”) (citation omitted); cf.

Medellin v. Texas, 552 U.S. 491, 505 (2008) (treaty

stipulations that are not self-executing are enforce–

able only pursuant to implementing legislation). Here,

the Fifth Amendment explicitly commands payment

of just compensation when government takes property

for public use. This is a “sufficient rule” as evidenced

by courts’ ability to apply it since the earliest days of

the United States.

Indeed, the compensation mandate cannot be

limited or diminished, even by other constitutional

powers. See, e.g., Louisville Joint Stock Land Bank v.

Radford, 295 U.S. 555, 589 (1935) (the bankruptcy

power cannot limit the obligation to provide just

8

compensation); see also United States v. Security

Industrial Bank, 459 U.S. 70, 75 (1982) (reaffirming

the holding in Radford and explaining, “[t]he

bankruptcy power is subject to the Fifth Amendment’s

prohibition against taking private property without

compensation”); Blanchette v. Connecticut General

Ins. Corps., 419 U.S. 102, 155 (1974) (ability of takings

claimants to pursue any compensation shortfall in the

Court of Claims ensured that their constitutional

rights were protected).

There is a “constitutional obligation to pay just

compensation.” Armstrong v. United States, 364 U.S.

40, 49 (1960) (emphasis added); see also Jacobs v.

United States, 290 U.S. 13, 16 (1933) (“[A] promise [to

pay] was implied because of the duty to pay imposed

by the [Fifth] Amendment.”). Critically, unlike other

civil actions, claims for just compensation do not

determine culpability—the owner possessed property

taken for a public use and a court’s main task is to

establish the amount representing the full and perfect

equivalent for the property taken. See United States v.

Commodities Trading Corp., 339 U.S. 121, 124 (1950)

(“The word ‘just’ in the Fifth Amendment evokes ideas

of ‘fairness’ and ‘equity’....”). Knick held that property

owners seeking just compensation for a taking need

not pursue state administrative remedies prior to

filing suit in federal court. 139 S.Ct. at 2170–75. The

challenged exhaustion requirement was wrongly

imposed because the property owner’s right to

compensation “arises at the time of the taking,” id. at

2170, and there is no reason why constitutionallyprotected property rights should be uniquely excepted

from the general rule that plaintiffs alleging

violations of their constitutional rights may proceed

directly to federal court without exhausting state

9

procedures. Id. at 2167 (citing Heck v. Humphrey, 512

U.S. 477, 480 (1994) (quoting Patsy v. Bd. of Regents

of Fla., 457 U.S. 496, 501 (1982))). Nothing in Knick

justifies immunizing state governments; the Court

simply emphasized the government’s obligation to pay

just compensation for property it has already taken.

See Knick, 139 S.Ct. at 2172 (citing First English as

holding that a “property owner acquires an

irrevocable right to just compensation immediately

upon a taking”).

In short, as one commentator explained,

It is a proposition too plain to be contested that

the Just Compensation Clause of the Fifth

Amendment is “repugnant” to sovereign

immunity and therefore abrogates the

doctrine …. A taking without payment of just

compensation is a constitutional oxymoron.

Faced with proof that the government has

effectuated such a condition, a court must do one

of two things if it is to enforce the supreme law

of the land. Either it must oust the government

and restore the property owner to possession of

his or her property, or it must confirm the taking

and exact just compensation from the

government. Between these alternatives, both of

which abrogate sovereign immunity, there is no

middle ground.

Eric Grant, A Revolutionary View of the Seventh

Amendment and the Just Compensation Clause, 91

Nw. U. L. Rev. 144, 199–200 (1996).

Any impulse to wait for the executive and

legislature to first agree to a judicial remedy must give

way to the self-executing Just Compensation Clause,

10

which necessarily implicates civil rights. First

English, 482 U.S. at 316 n.9. (“[I]t is the Constitution

that dictates the remedy for interference with

property rights amounting to a taking.”). Here, the

takings claimants filed suit in state court. The State

of Texas removed the case to federal court then

convinced the Circuit Court that by doing so, it

immunized itself from paying just compensation. This

Court should not countenance such self-dealing

governmental machinations at the expense of

property owners seeking vindication of constitutional

rights. See Arrigoni Ent., LLC v. Town of Durham, 136

S.Ct. 1409 (2016) (Thomas and Kennedy, JJ.,

dissenting from denial of certiorari) (procedural bar

from federal court “inspired gamesmanship”); Lapides

v. Board of Regents, 535 U.S. 613, 621 (2002) (decrying

state’s manipulation of legal doctrine “to achieve

unfair tactical advantages”).

The structure and plain language of the Fifth

Amendment as incorporated through the Fourteenth

Amendment cannot justify such immunity. The Just

Compensation Clause does not dictate how or when

compensation is provided. See Crozier v. Fried. Krupp

Aktiengesellschaft, 224 U.S. 290, 306 (1912). But it

requires some kind of enforceable remedy, even when

the government has not consented to be sued.

B.

The Fourteenth Amendment Was

Adopted to Protect Civil Rights,

Including Property Rights

When, as here, a state is involved, the Fourteenth

Amendment’s empowerment of federal courts to

ensure that states do not violate individual rights is

also implicated. Mitchum v. Foster, 407 U.S. 225, 238–

39 (1972) (recognizing the role of the Amendment in

11

elevating “the Federal Government as a guarantor of

basic federal rights against state power”); Akhil Reed

Amar, The Bill of Rights: Creation and Reconstruction

268 (1998) (the Amendment was adopted in part to

protect “citizens of the United States, whose property,

by State legislation, has been wrested from them”).

Before the foundational shift in constitutional

thinking in the aftermath of the Civil War, the Fifth

Amendment’s condition on government’s exercise of

eminent domain power limited only the federal

government. See Barron v. Mayor & City Council of

Baltimore, 32 U.S. (7 Pet.) 243, 250–51 (1833). 4

It was not until the Fourteenth Amendment (and

the civil rights statutes adopted to give it teeth),

however, that federal courts protected property and

other constitutional rights against predation from

state and local governments. When Congress enforces

a Fourteenth Amendment right without violating

state immunity, it is because the Amendment itself

overrides any state action that purports to render a

right immune from judicial enforcement. See

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (“[T]he

Eleventh Amendment, and the principle of state

sovereignty which it embodies, are necessarily limited

by the enforcement provisions of § 5 of the Fourteenth

Amendment.”) (citation omitted).

The Fifth Circuit’s decision relies on a partial

quote from 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[.]” The full quote in Hernandez,

State constitutions and state tort law contained analogous

protection against uncompensated takings. See Knick, 139 S.Ct.

at 2175–76.

4

12

which rejected an expansion of Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), to permit recovery of tort damages, 5

states, “[w]ith the demise of federal general common

law, a federal court’s authority to recognize a damages

remedy must rest at bottom on a statute enacted by

Congress, and no statute expressly creates a Bivens

remedy.” 140 S.Ct. at 742 (citation omitted). The heart

of Hernandez is the Court’s grappling with whether it

could or should create a new cause of action in the

absence of a federal statute. The Court declined to do

so. The issue presented here is different: whether the

Fifth Amendment’s Takings Clause itself establishes

an independent cause of action. Texas convinced the

Fifth Circuit that it does not—that property owners’

sole avenue to federal court is via the Civil Rights Act.

Section 1983 operates to provide a private cause of

action to enforce rights guaranteed by the Fourteenth

Amendment. It provides a remedy against “[e]very

person” who, under color of state law, deprives a

citizen of the United States of “any rights, privileges,

or immunities secured by the Constitution and laws.”

Section 1983 is not an independent source of

constitutional or statutory rights; it authorizes

plaintiffs to sue for violations of the Constitution and

5 In Bivens, the Court held that a person claiming to be the victim

of an unlawful arrest and search could bring a Fourth

Amendment claim for damages against the responsible agents

even though no federal statute authorized such a claim. 403 U.S.

at 397. The Hernandez case involved a cross-border shooting

where a U.S. Border Patrol agent shot and killed a Mexican teen

who had crossed back into Mexico when he was shot. After an

investigation absolved the agent, the teen’s parents sued in

federal district court, alleging that the agent violated the teen’s

Fourth and Fifth Amendment rights. 140 S.Ct. at 740–41.

13

other federal statutes. However, as the court below

noted, plaintiffs cannot sue states directly for

constitutional violations under Section 1983, and the

states themselves are not “persons” as that term is

used in the statute. Arizonans for Off. Eng. v. Arizona,

520 U.S. 43, 69 (1997). If takings claimants are

required to proceed solely under Section 1983 against

a state, the lawsuit “dies aborning.” See Knick, 139

S.Ct. at 2167–68 (rejecting the same “Catch-22”

caused by the San Remo preclusion trap). 6 This Court

should grant the petition to ensure that property

owners have a means for constitutional redress

against any government actor—local, state, or

federal—that takes private property for public use

without just compensation.

II. This Court Should Resolve the Lower Court

Conflict on the Self-Executing Nature of the

Just Compensation Clause

The lower courts do not agree on the import of this

Court’s “self-executing” description. The First Circuit

requires just compensation as mandated by the selfexecuting nature of the Takings Clause while the

Fifth and Ninth Circuits allow governments to avoid

such payments. The First Circuit correctly concludes

that it means that just compensation cannot be

limited or diminished, even by other constitutional

powers, or by statute. For example, in In re Financial

Oversight and Mgmt. Bd., 41 F.4th 29, 46 (1st Cir.

2022), cert. denied, 143 S.Ct. 774 (2023), the First

Circuit rejected the argument that Puerto Rico’s

obligation to provide just compensation for property it

had taken (both by eminent domain and by inverse

6 San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S.

323, 335 (2005).

14

condemnation) could be reduced or discharged in

bankruptcy. 7

The First Circuit correctly relied on the unique

qualities of just compensation—the only monetary

remedy specifically commanded in the text of the

Constitution. Id. at 44 (“just compensation is different

in kind from other monetary remedies”). The

command for just compensation is a “structural

limitation” on government’s authority to take private

property, and it is a limitation that should encourage

government officials to exercise the taking power with

caution. Id. Because the Constitution itself demands

payment of just compensation to remedy a taking, the

First Circuit recognized that a judicial award of just

compensation is different in kind than typical breach

of contract or common law or constitutional tort-based

damage awards. Id. at 43, 45 (Just compensation is

not a “mere monetary obligation that may be

dispensed with by statute.”). The court declined to

conflate constitutional tort recovery via 42 U.S.C.

§ 1983 8 with constitutionally mandated just

compensation for takings. It explained,

a claim under the Takings Clause is different in

kind from actions under Bivens and section

1983. Neither Bivens nor section 1983 rest on a

provision of the Constitution that mandates a

specific remedy in the same way the Takings

Clause mandates just compensation; nor do

7 The First Circuit rested its analysis squarely on this Court’s

“very clear” cases declaring that bankruptcy laws are

subordinate to the Takings Clause. Financial Oversight, 41 F.4th

at 42 (citing Sec. Indus. Bank and Radford).

8 See Monell v. Dep’t of Social Services of City of N.Y., 436 U.S.

658, 691 (1978).

15

Bivens or section 1983 prescribe the quantum

of compensation required in the event of a

violation.

Financial Oversight, 41 F.4th at 46 (footnote omitted).

By contrast, the Fifth Circuit bars property owners

from obtaining just compensation by immunizing

governments’ refusal to pay just compensation

judgments. In addition to this case, in Ariyan, Inc. v.

Sewerage & Water Bd. of New Orleans, 29 F.4th 226

(5th Cir. 2022), the Fifth Circuit considered whether

New Orleans’ residents whose homes and businesses

were damaged and destroyed by a public

infrastructure project could demand payment on the

state court judgments awarding them compensation.

Id. at 228. The Fifth Circuit denied them relief,

dismissing as dicta this Court’s description of the Just

Compensation Clause as “self-executing.” Id. at 231.

The court held the Sewerage Board must consent to

enforcement of just compensation judgments and

property owners are left to “rely exclusively upon the

generosity” of the government to satisfy the

judgments, because Louisiana law alone controls the

right to timely compensation, and does not create a

right to receive it at any particular time (even years

after the takings). Id. at 230 (quoting Folsom v. City

of New Orleans, 109 U.S. 285, 295 (1883) (Harlan, J.,

dissenting)).

The Constitution’s command to provide just

compensation is a hollow one if all it demands is that,

in return for surrendering property to the public, the

owner nonetheless must rely on the legislative or

executive branches to agree to provide compensation.

See Archbold-Garrett v. City of New Orleans, 893 F.3d

318, 322 n.1 (5th Cir. 2018) (city allocates funds to pay

16

just compensation only “as they see fit”). But

describing the Just Compensation Clause as selfexecuting is not “hortatory fluff.” 9 It means that states

cannot refuse to pay just compensation judgments,

and federal courts need not defer to state assertions of

sovereign immunity. Whether viewing the Just

Compensation Clause as an affirmative waiver of

common-law immunity, or simply a textual

affirmation that the sovereign power of eminent

domain does not include the power to avoid paying

just compensation, this Court has emphasized, “[t]he

government’s post-taking actions … cannot nullify the

property owner’s existing Fifth Amendment right[,]”

and where it has taken property, “no subsequent

action by the government can relieve it of the duty to

provide compensation.” Knick, 139 S.Ct. at 2171

(quoting First English, 482 U.S. at 321). The Ninth

Circuit has suggested the same. In In re City of

Stockton, 909 F.3d 1256 (9th Cir. 2018), a property

owner with a stale inverse condemnation claim sought

to recover his just compensation via Stockton’s

bankruptcy proceedings. Id. at 1262. The court, split

2-1, said that his claim, which would have required

the court to invalidate the city’s proposed plan of

adjustment, was subject to “equitable mootness,” id.

at 1266, and barred on the basis that he “offer[ed] too

little, too late.” Id. The majority of the panel concluded

that the city’s obligation to provide compensation for

See Kelo v. City of New London, 545 U.S. 469, 497 (2005)

(O’Connor, J., dissenting) (“[W]ere the political branches the sole

arbiters of the public-private distinction, the Public Use Clause

would amount to little more than hortatory fluff. An external,

judicial check on how the public use requirement is interpreted,

however limited, is necessary if this constraint on government

power is to retain any meaning.”).

9

17

an inverse condemnation claim was ordinary debt,

dischargeable in Stockton’s municipal bankruptcy).

Id. at 1268–69. Judge Friedland dissented, however,

concluding that based on “constitutional first

principles,” id. at 1271, and this Court’s decisions, the

Ninth Circuit should have concluded that “Congress’s

bankruptcy powers do not allow it to infringe upon

rights guaranteed by the Takings Clause. Where a

taking has occurred, just compensation is owed and

cannot be reduced—bankruptcy notwithstanding .…

[C]laims for just compensation should be excepted

from discharge, such that they survive any

bankruptcy intact.” Id. at 1273 (Friedland, J.,

dissenting).

Only resolution by this Court can harmonize the

divergent approaches of the lower courts on the

meaning and implementation of the Constitution’s

self-executing command for just compensation after a

taking.

III. The Just Compensation Remedy Presents

Issues of National Importance That Can Be

Resolved Only by This Court

The “critical terms [in the Takings Clause] are

‘property,’ ‘taken’ and ‘just compensation.’” United

States v. General Motors Corp., 323 U.S. 373, 377

(1945). Recently, this Court has addressed all but one.

The Court determined when a valuable interest

qualifies as “private property.” See, e.g., Cedar Point,

141 S.Ct. at 2075–76 (right to exclude a fundamental

attribute of property). It determined when a

regulation restricts use of property and effects a

“taking,” Lingle, 544 U.S. at 536 (clarifying regulatory

takings), and when a taking is “for a public use.” Kelo,

545 U.S. at 489–90.

18

But lower courts require guidance regarding the

subject of the overwhelming majority of takings

cases—just compensation. Since this Court’s last just

compensation case, nearly four decades ago, see

United States v. 50 Acres of Land, 469 U.S. 24, 26–29

(1984), lower courts have strayed from the Just

Compensation Clause’s foundational principles. See,

e.g., City of Milwaukee Post No. 2874 V.F.W. of U.S. v.

Redev. Auth. of City of Milwaukee, 768 N.W.2d 749

(Wis. 2009) (undivided fee rule avoids compensation

for long-term leasehold interest), cert. denied, 561

U.S. 1006 (2010); In re John Jay College of Crim.

Justice of City Univ. of N.Y., 905 N.Y.S.2d 18 (App.

Div. 2010) (excluding evidence of deliberate

government actions to depress the value of the taken

property), cert. denied sub nom., River Ctr. LLC v.

Dormitory Auth. of N.Y., 566 U.S. 982 (2012).

The Just Compensation Clause again cries out for

this Court’s attention, as two Justices recently

commented. See Bay Point Props., Inc. v. Mississippi

Transp. Comm’n, 137 S.Ct. 2002 (2017) (“But

[Mississippi’s] decision seems difficult to square with

the teachings of this Court’s cases holding that

legislatures generally cannot limit the compensation

due under the Takings Clause of the Constitution .…

Given all this, these are questions the Court ought

take up at its next opportunity.”) (statement of

Gorsuch and Thomas, JJ.). Only this Court can

confirm the essential nature of the compensation

remedy for takings.

19

CONCLUSION

The Court should grant the petition.

DATED: May 2023.

Respectfully submitted,

DEBORAH J. LA FETRA

ROBERT H. THOMAS

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

916.419.7111

DLaFetra@pacificlegal.org

RThomas@pacificlegal.org

KATHRYN D. VALOIS

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

561.691.5000

KValois@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation