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

No. 22-913

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------RICHARD DEVILLIER, ET AL.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF FOR AMICI CURIAE

ILYA SOMIN AND CATO INSTITUTE

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------CAROLINE C. LINDSAY

Counsel of Record

HILGERS GRABEN PLLC

332 S Michigan Avenue,

Suite 121 #5612

Chicago, IL 60604

(402) 313-3480

clindsay@hilgersgraben.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

The Fifth Circuit’s Badly Flawed Ruling

Reinstates the Same Sort of Catch-22 Prohibited by This Court’s Decision in Knick

v. Township of Scott ...................................

4

II.

The Question Presented Is Important Because It Will Determine the Fundamental

Property Rights of Millions ....................... 11

III.

This Court’s Plenary Review Is Warranted

to Resolve a Circuit Split Deepened by the

Fifth Circuit’s Decision Below ................... 12

IV.

In the Alternative, Summary Reversal Is

Warranted to Correct the Patently Erroneous Decision Below .................................... 16

CONCLUSION..................................................... 17

ii

TABLE OF AUTHORITIES

Page

CASES

Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans, 29 F.4th 226 (5th Cir. 2022) ..........................12

Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d

704 (9th Cir. 1992)....................................... 13, 14, 15

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780 (2019) ...........................16

CNH Industrial N.V. v. Reese, 138 S. Ct. 761

(2018) .......................................................................16

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 2, 17

Dunn v. Reeves, 141 S. Ct. 2405 (2021) ......................16

Edelman v. Jordan, 415 U.S. 651 (1974) ......................7

First English Evangelical Lutheran Church of

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

304 (1987) .............................................. 4, 7, 9, 13, 14

Henderson v. City of Columbus, 827 N.W.2d 486

(Neb. 2013) ..............................................................15

Hernandez v. Mesa, 140 S. Ct. 735 (2020) ..................15

In re Fin. Oversight & Mgmt. Bd., 41 F.4th 29

(1st Cir. 2022) ..........................................................14

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

(2019) ................................................... 2–9, 11, 12, 17

Law. v. Hilton Head Pub. Serv. Dist. No. 1, 220

F.3d 298 (4th Cir. 2000) ...........................................14

Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) ........................................................8

iii

TABLE OF AUTHORITIES—Continued

Page

Maine Cmty. Health Options v. United States,

140 S. Ct. 1308 (2020) ......................................... 9, 10

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ............ 13

Manning v. Mining & Minerals Div. of the Energy, Minerals & Nat. Res. Dep’t, 144 P.3d 87

(N.M. 2006) .......................................................... 8, 15

McKesson Corp. v. Islamic Republic of Iran, 539

F.3d 485 (D.C. Cir. 2008) .........................................14

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...........8

SDDS, Inc. v. State, 650 N.W.2d 1 (S.D. 2002) ...........15

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

Francisco, 545 U.S. 323 (2005) ..................................2

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Plan. Agency, 535 U.S. 302 (2002).............................8

Warner v. City of Marathon, 718 F. App’x 834

(11th Cir. 2017)..........................................................6

Williamson County Regional Plan. Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985) .............. 2, 4, 6, 8

Wisconsin Cent. Ltd. v. Pub. Serv. Comm’n of

Wisconsin, 95 F.3d 1359 (7th Cir. 1996) .................13

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V ..................................................10

iv

TABLE OF AUTHORITIES—Continued

Page

STATUTES AND RULES

28 U.S.C. § 1331 ............................................................5

28 U.S.C. § 1441 .............................................. 3, 5, 6, 16

42 U.S.C. § 1983 .................................................. 7, 8, 13

Rule 37 ..........................................................................1

OTHER AUTHORITIES

Ilya Somin, Federalism and Property Rights,

2011 U. CHI. LEGAL F. 53 ...........................................9

Ilya Somin, Knick v. Township of Scott: Ending

a “Catch 22” that Barred Takings Cases from

Federal Court, 2018–19 CATO SUPREME CT.

REV. 153 ........................................................... 5, 9–12

Ilya Somin, Stop the Beach Renourishment and

the Problem of Judicial Takings, 6 DUKE J.

CONST. L. & POL’Y 91 (2011) ...................................12

Ilya Somin, THE GRASPING HAND: KELO V. CITY

OF NEW LONDON AND THE LIMITS OF EMINENT

DOMAIN (rev. ed. 2016) ...............................................1

1

INTEREST OF AMICI CURIAE

Ilya Somin is a professor of law at the Antonin

Scalia Law School at George Mason University and the

author of numerous works on takings and constitutional property rights, including THE GRASPING HAND:

KELO V. CITY OF NEW LONDON AND THE LIMITS OF EMINENT DOMAIN (rev. ed. 2016). His amicus briefs and

writings on takings law have been cited in decisions by

the United States Supreme Court, lower federal courts,

state supreme courts, and the Supreme Court of Israel.

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy

Center for Constitutional Studies helps restore the

principles of constitutional government that are the

foundation of liberty. Toward those ends, Cato publishes books and studies, files amicus briefs, conducts

conferences, and produces the annual Cato Supreme

Court Review. This case interests Cato because the

right to just compensation when property is taken is

fundamental.1

---------------------------------♦---------------------------------

1

No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici or their counsel

made any monetary contribution intended to fund the preparation or submission of this brief. All parties received timely notice

of amici’s intent to file this brief as required by Rule 37.

2

SUMMARY OF ARGUMENT

In its important decision in Knick v. Township of

Scott, 139 S. Ct. 2162 (2019), this Court reversed Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)—a ruling that required takings plaintiffs with claims against state and

local governments to first exhaust state-court remedies before seeking relief in federal court. The Court

recognized that this state-litigation requirement created an impermissible “Catch-22” in which plaintiffs

could not “go to federal court without going to state

court first; but if [they went] to state court and los[t],

[their] claim[s were] barred in federal court.” Knick,

139 S. Ct. at 2167 (citing San Remo Hotel, L.P. v. City

and County of San Francisco, 545 U.S. 323 (2005)

(holding that such state court judgments had preclusive effect in subsequent federal litigation)). As a result, the rule “relegate[d] the Takings Clause ‘to the

status of a poor relation’ among the provisions of the

Bill of Rights,” which were otherwise “guaranteed a

federal forum.” Knick, 139 S. Ct. at 2169–70 (quoting

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

In reversing Williamson County’s atextual exhaustion requirement, Knick established the important principle that takings plaintiffs are entitled to

their day in federal court. Now, less than four years

later, the Fifth Circuit has nullified that entitlement in

a mere three-sentence per curiam decision that fails to

even acknowledge Knick or any of this Court’s Takings

Clause precedents. By holding that Fifth Amendment

takings claims against states are simultaneously

3

removable to federal court under 28 U.S.C. § 1441 and

nonjusticiable in federal court due to the purported

lack of a federal cause of action, the Fifth Circuit resurrected the precise sort of Catch-22 eliminated by this

Court in Knick and has effectively barred takings

claims against states from both state and federal

court.

The decision below demonstrates at best a massive oversight of this Court’s precedents and at worst

an egregious resistance of them. The result is that millions of Americans are now deprived of a fundamental

constitutional protection against tyranny by state governments. These significant ramifications of the Fifth

Circuit’s ruling render the question presented extremely important.

Moreover, the Fifth Circuit’s ruling deepened a

preexisting split on the question presented: the First,

Fourth, Seventh, and D.C. Circuits, along with the

courts of last resort in New Mexico, South Dakota, and

Nebraska, have recognized that the Takings Clause is

self-executing and thus provides a direct cause of action for just-compensation claims; the Ninth and now

Fifth Circuits have reached the opposite conclusion,

holding that a statutory cause of action is required to

vindicate the Fifth Amendment right to just compensation.

This Court should grant certiorari to resolve this

split of authority, curtail the Fifth Circuit’s defiance of

Knick, and restore a fundamental constitutional protection to millions of Americans. Even if the Court

4

declines plenary review, summary reversal is warranted to correct the patently erroneous decision below.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Fifth Circuit’s Badly Flawed Ruling

Reinstates the Same Sort of Catch-22 Prohibited by This Court’s Decision in Knick

v. Township of Scott.

In Knick, this Court eliminated Williamson

County’s atextual requirement that a takings plaintiff

litigate an inverse-condemnation claim in state court

before he files a takings claim against local and state

governments in federal court. In so doing, the Court

concluded that this exhaustion requirement could not

be reconciled with the “self-executing nature” of the

Takings Clause, which provides that “[a] property

owner has an actionable Fifth Amendment takings

claim when the government takes his property without

paying for it.” Knick, 139 S. Ct. at 2167, 2171 (citing

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)). To

ensure “[f ]idelity to the Takings Clause” and “restor[e]

takings claims to the full-fledged constitutional status

the Framers envisioned when they included the Clause

among other protections in the Bill of Rights,” the

Court overruled Williamson County. Knick, 139 S. Ct.

at 2170.

5

Knick stands for the important principle that justcompensation claims enjoy the same status as other

constitutional claims and that takings plaintiffs are

thus entitled to their day in federal court. See Ilya

Somin, Knick v. Township of Scott: Ending a “Catch 22”

that Barred Takings Cases from Federal Court, 2018–

19 CATO SUPREME CT. REV. 153, 157–71 (discussing

this crucial aspect of Knick in detail). Yet, in a oneparagraph per curiam decision that doesn’t so much as

cite Knick, the Fifth Circuit directly defied this directive.

According to the cursory decision below, federal

takings claims against states cannot be heard in federal court because Congress has not created a statutory cause of action for such claims. Pet. App. 2a. But

despite this purported absence of a federal cause of action, the panel below permitted the case—which was

originally filed in state court—to be removed to federal

court under 28 U.S.C. § 1441(a) on the basis that plaintiffs’ federal takings claims arose under federal law

pursuant to 28 U.S.C. § 1331. Pet. Supp. App. 73a. As

Judge Oldham explained in his dissent from denial of

rehearing en banc, this holding “reduces the Takings

Clause”—as applied to the states—“to nothing”: if such

a claim is filed in federal court, it must be dismissed

with prejudice for a lack of a federal cause of action,

and if the claim is brought in state court, it suffers the

same fate, because when the State inevitably removes

the case, “the federal court must assert jurisdiction

and dismiss the claim with prejudice.” Pet. Supp. App.

78a.

6

In other words, the Fifth Circuit has resurrected

precisely the sort of Catch-22 that this Court eliminated in Knick. In fact, this one is worse. Under Williamson County, federal takings claims against states

were effectively isolated from federal review. But under the Fifth Circuit’s decision below, federal takings

claims against states are effectively isolated from any

judicial review—state or federal. At least takings

plaintiffs in the former regime were generally provided

a forum for their claims in state court, and an opportunity for eventual federal review via a petition for certiorari to this Court.2 As Judge Oldham aptly noted in

his dissental: A “certiorari petition provides relatively

little protection for a federal takings claim, which is

one reason [this Court] overturned Williamson County.

But at least it was something.” Pet. Supp. App. 78a. The

Fifth Circuit’s decision does not even leave takings

plaintiffs with that.

The ruling below has thus likewise resurrected

the double standard eliminated by this Court in Knick:

takings claims against states are now deprived of judicial review in a way that is not true of any comparable

constitutional rights claim. While plaintiffs are guaranteed a federal forum for vindicating states’ violations of their rights to be free from unreasonable

searches and seizures or to worship freely, for example,

2

Some plaintiffs were not so fortunate. At least one circuit

permitted the same sort of removal shenanigans blessed by the

Fifth Circuit here. See Warner v. City of Marathon, 718 F. App’x

834, 838 (11th Cir. 2017) (dismissing takings claim removed under 28 U.S.C. § 1441 for failure to comply with Williamson

County’s exhaustion requirement).

7

they are left without recourse when it comes to their

constitutional right to just compensation for takings.

In holding that plaintiffs cannot enforce this right in

federal court absent a statutory cause of action, the

Fifth Circuit has once more relegated the Takings

Clause “ ‘to the status of a poor relation’ among the provisions of the Bill of Rights.” Knick, 139 S. Ct. at 2169

(citation omitted).

To be sure, plaintiffs bringing claims under other

provisions of the Bill of Rights are limited in their ability to recover damages against states. See Edelman v.

Jordan, 415 U.S. 651, 674–77 (1974) (holding that 42

U.S.C. § 1983 does not provide a cause of action for

damages against states). But that is because the provisions themselves do not provide for such a remedy. In

contrast, the Takings Clause, as this Court has repeatedly recognized, is “self-executing . . . with respect to

compensation.” Knick, 139 S. Ct. at 2171 (quoting First

English, 482 U.S. at 315). Put another way, the right

guaranteed by the Takings Clause is not the right to

be free from some government action—the right is to

be free from government action without just compensation. Thus, denying takings plaintiffs a forum for

seeking just compensation from states does not simply

deny them a particular remedy for a violation of a constitutional right—it denies them the right itself, as applied to states. No other constitutional provision has

been interpreted to grant states such an absolute exemption.

This state exemption defies not only this Court’s

decision in Knick, but decades of this Court’s takings

8

precedents. Indeed, this Court “has consistently applied the Takings Clause to the states, and in so doing

recognized, at least tacitly, the right of a citizen to sue

the state under the Takings Clause for just compensation.” Manning v. Mining & Minerals Div. of the Energy, Minerals & Nat. Res. Dep’t, 144 P.3d 87, 90 (N.M.

2006) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Plan. Agency, 535 U.S. 302, 306–09 (2002);

Palazzolo v. Rhode Island, 533 U.S. 606, 614–15 (2001);

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1027–30 (1992)). The single-paragraph decision

below grapples with none of these decisions.

Two of the judges on the panel below filed concurring opinions to the denial of rehearing en banc, in

which they defend the panel decision in more detail

than the ruling itself did. Judge Higginbotham argues

that the reasoning of Knick applies only to cases

brought under 42 U.S.C. § 1983. Pet. Supp. App. 46a–

47a. But Knick itself squarely forecloses such a limited

reading. There, this Court rejected the Township’s

characterization of the state-litigation requirement as

a § 1983 specific rule, noting that “the Williamson

County opinion, which did not even quote §1983[,] . . .

applied with equal force to takings by the Federal Government, not covered by §1983.” Knick, 139 S. Ct. at

2175 n.6 (citing Williamson County, 473 U.S. at 195).

Judge Higginbotham also advances various arguments to the effect that it is desirable to confine most

takings cases to state courts because of the latter’s special expertise in property law issues. Pet. Supp. App.

48a–50a. These types of arguments, which were offered

9

at length by the dissent in Knick, 139 S. Ct. at 2187–

89 (Kagan, J., dissenting), have already been rejected

by this Court once. And for good reason. “[M]any other

constitutional rights cases also routinely involve issues on which state judges might have superior expertise.” Somin, 2018–19 CATO SUPREME CT. REV. at 164–

66 (collecting examples); Ilya Somin, Federalism and

Property Rights, 2011 U. CHI. LEGAL F. 53, 80–84

(same). “Outside the context of the Takings Clause, few

argue that this possibility justifies relegating constitutional claims to state courts.” Somin, 2018–19 CATO SUPREME CT. REV. at 164.

Judge Higginson, for his part, seeks support for

the panel’s ruling in dictum from this Court’s decision

in Maine Community Health Options v. United States,

140 S. Ct. 1308 (2020), in which the Court stated 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.’ ”

Id. at 1328 n.12. But that case, unlike this one, involved a statutory right of action (namely, a Tucker Act

claim against the federal government). See id. at 1331.

For that very reason, the Court expressly declined to

decide whether plaintiffs could bring their claims under the Takings Clause itself absent a statutory cause

of action. Id. at 1331 n.15. In contrast, when this Court

was faced with a takings claim lacking a statutory

cause of action in First English, it determined that the

Takings Clause provided an independent cause of action. See 482 U.S. at 315–16. Nothing in the dictum of

footnote 12 of the Court’s decision in Maine

10

Community Health Options could reasonably be construed as abrogating or overruling that earlier decision.

Nevertheless, relying on the erroneous notion that

the only available cause of action for just compensation

claims must be “judicially created,” Judge Higginson

argues that, even if the Takings Clause, generally, was

incorporated against state governments, any implied

“damages remedy” for “just compensation” was not.

Pet. Supp. App. 53a–55a. But Judge Higginson cites no

historical support for this position. Indeed, there is no

evidence that the Fourteenth Amendment somehow

incorporated only part of the Takings Clause against

the states but excluded the express entitlement to just

compensation. Such a bifurcated approach would essentially gut this Fifth Amendment right, which is not

a right to be free from takings, but a right to free from

takings “without just compensation.” U.S. Const.

Amend. V. (emphasis added).

The Fifth Amendment does indeed create a direct

cause of action against state governments, no less than

other provisions of the Bill of Rights do. Nothing in the

text or history of the Constitution suggests otherwise.

See Somin, 2018–19 CATO SUPREME CT. REV. at 160–

62. “Indeed, historical evidence indicates that protecting constitutional property rights against abuses by

state governments was one of the main reasons the Bill

of Rights was ‘incorporated’ against the states in the

first place.” Id. at 161 (collecting sources).

11

The Fifth Circuit’s erroneous decision is not

merely atextual and ahistorical—it stands in direct defiance of this Court’s recent decision in Knick. Certiorari is thus warranted to prevent the important

principles of Knick—not to mention the Takings

Clause as applied to states—from becoming a dead letter in the Fifth Circuit.

II.

The Question Presented Is Important Because It Will Determine the Fundamental

Property Rights of Millions.

It is difficult to imagine an issue of greater importance than the widescale judicial nullification of a

fundamental constitutional right, which is precisely

what the Fifth Circuit has wrought here. As a result of

the unreasoned ruling below, the governments of three

states with approximately 36 million residents will be

free to seize private property and then refuse to pay

compensation, without fear of having their actions

challenged in either state or federal court.

Even in the extremely unlikely event that these

states decide not to take full advantage of the decision

below by removing all federal takings claims against

them to federal court, the foreclosure of a federal forum

alone has substantial practical ramifications. Indeed,

the right to bring takings claims in federal court is a

vital tool to avoid potential bias in state courts. See

Somin, 2018–19 CATO SUPREME CT. REV. at 155. This is

especially true in states like Louisiana, Mississippi,

and Texas, where judges are elected by popular vote

12

and are therefore likely to maintain close ties to the

political actors adopting the very regulations being

challenged by takings plaintiffs. See id. at 182; see also

Ilya Somin, Stop the Beach Renourishment and the

Problem of Judicial Takings, 6 DUKE J. CONST. L. &

POL’Y 91, 99–110 (2011).

Moreover, in Louisiana, the right to bring takings

claims in federal court is not just a vital tool—it is the

only tool for property owners to vindicate their fundamental constitutional rights. This is because Louisiana

does not provide a state-law remedy for uncompensated takings. See Ariyan, Inc. v. Sewerage & Water Bd.

of New Orleans, 29 F.4th 226 (5th Cir. 2022), cert. denied, 143 S. Ct. 353 (2022).

These devastating and significant ramifications of

the Fifth Circuit’s ruling render the question presented one of substantial import and deserving of this

Court’s review.

III. This Court’s Plenary Review Is Warranted

to Resolve a Circuit Split Deepened by the

Fifth Circuit’s Decision Below.

Beyond defying Knick and nullifying millions of

Americans’ fundamental property rights, the Fifth Circuit’s decision also deepens an existing split among the

federal Courts of Appeals and state courts of last resort. By granting plenary review of the petition here,

this Court can both resolve the split and provide muchneeded guidance to lower courts on these important

constitutional issues.

13

In holding that the Fifth Amendment “does not

provide a right of action for takings claims against a

state,” Pet. App. 2a, the Fifth Circuit joined the Ninth

in rejecting the self-executing nature of the Takings

Clause. Indeed, the cursory per curiam opinion below

cites Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d

704 (9th Cir. 1992), for support. In that case, the Ninth

Circuit held that takings plaintiffs “ha[ve] no cause of

action directly under the United States Constitution”

and that any litigant “complaining of a violation of a

constitutional right must utilize 42 U.S.C. § 1983.” Id.

at 705. The Ninth Circuit thus nullified the Takings

Clause as applied to the states and did so in a very

short opinion that offers almost no analysis supporting

its position. In the decision below, the Fifth Circuit now

repeats this error.

These two decisions stand in sharp conflict with

the four federal circuits that have held that the selfexecuting Takings Clause supplies its own cause of

action, independent of legislative intervention. The

Seventh Circuit, for example, has noted that the “just

compensation requirement of the Takings Clause

places takings in a class by themselves because, unlike

other constitutional deprivations, the Takings Clause

provides both the cause of action and the remedy.”

Wisconsin Cent. Ltd. v. Pub. Serv. Comm’n of Wisconsin,

95 F.3d 1359, 1368 (7th Cir. 1996) (citing First English,

482 U.S. at 316 & n.9). The Fourth Circuit and D.C. Circuit have recognized the same. See Mann v. Haigh,

120 F.3d 34, 37 (4th Cir. 1997) (describing how the

Takings Clause represents a situation “in which the

14

Constitution itself authorizes suit against the federal

government” (citing First English, 482 U.S. at 316 n.9));

McKesson Corp. v. Islamic Republic of Iran, 539 F.3d

485, 490 (D.C. Cir. 2008) (noting that the Supreme

Court has “infer[red] a cause of action” from the Takings Clause (citing, inter alia, First English, 482 U.S.

at 316 & n.9)). The Fourth Circuit has even gone so far

as to expressly recognize this circuit split. See Law. v.

Hilton Head Pub. Serv. Dist. No. 1, 220 F.3d 298, 302

n.4 (4th Cir. 2000) (“Other courts, however, have held,

in apparent conflict with First English, that a violation

of the Takings Clause can only be redressed through a

claim under § 1983.” (citing, inter alia, Azul-Pacifico,

Inc., 973 F.2d at 705)).

Most recently, the First Circuit has distinguished

just-compensation claims from claims for money damages for other constitutional violations, and its analysis bears directly on the question presented. Most

notably, the First Circuit rejected the Government’s attempt to analogize takings claims to both Bivens suits

and § 1983 actions, explaining that “a claim under the

Takings Clause is different in kind from [such] actions”

because “[n]either 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 Bivens or section 1983 prescribe the quantum of compensation required in the

event of a violation.” In re Fin. Oversight & Mgmt. Bd.,

41 F.4th 29, 46 (1st Cir. 2022), cert. denied, 143 S. Ct.

774 (2023). The First Circuit’s analysis stands in stark

contrast to the panel’s decision below. Although the

15

panel cited virtually no authority for its holding, it did

cite a Bivens case for the inapposite proposition that “a

federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress.” Pet. App. 2a (quoting Hernandez v. Mesa, 140

S. Ct. 735, 742 (2020)).

Finally, the decision below and the Ninth Circuit’s

decision in Azul-Pacifico conflict with several decisions

from state courts of last resort. For example, in Manning v. Mining & Minerals Division of the Energy, Minerals & Natural Resources Department, 144 P.3d 87

(N.M. 2006), the New Mexico Supreme Court agreed

with the First, Fourth, Seventh, and D.C. Circuits “that

the Takings Clause creates a cause of action against a

state,” because it is “self-executing.” Id. at 95, 97; see

also id. at 96 n.6. It thus held that “[r]equiring further

governmental action when it is the government that

has effected the taking is contrary to the very reason

for the Fifth Amendment: a check against abusive governmental power.” Id. at 97. Similarly, the South Dakota Supreme Court has also “[r]ecognize[d] the Just

Compensation Clause as a self-executing constitutional provision” under which “the remedy does not depend on statutory facilitation.” SDDS, Inc. v. State, 650

N.W.2d 1, 9 (2002); see also Henderson v. City of Columbus, 827 N.W.2d 486, 493 (Neb. 2013); Pet. 11–12 (discussing other state court decisions).

This split of authority is entrenched, enduring,

and ripe for this Court’s review. Indeed, this Court’s

intervention is necessary to provide guidance to the

lower courts on these important issues. The Court

16

should therefore grant certiorari and resolve the split

in favor of the majority position, which properly applies the constitutional text and this Court’s precedents in recognizing that the self-executing Takings

Clause provides a direct cause of action for just-compensation claims.

IV. In the Alternative, Summary Reversal Is

Warranted to Correct the Patently Erroneous Decision Below.

Even if the Court declines to take this case up on

plenary review, it should at least grant certiorari to

summarily reverse the badly flawed ruling below. See,

e.g., Dunn v. Reeves, 141 S. Ct. 2405, 2407 (2021) (summarily reversing an Eleventh Circuit decision that

“went astray” from this Court’s precedents); Box v.

Planned Parenthood of Indiana and Kentucky, Inc., 139

S. Ct. 1780, 1782 (2019) (summarily reversing a Seventh Circuit decision that “clearly erred” in failing to

acknowledge and apply a relevant precedent of this

Court); CNH Industrial N.V. v. Reese, 138 S. Ct. 761,

763 (2018) (summarily reversing a decision of the

Sixth Circuit because its “analysis [could ]not be

squared” with a recent precedent of this Court).

By allowing removal of plaintiffs’ federal takings

claims under § 1441 only to dismiss them on the merits

for the purported lack of a federal cause of action, the

Fifth Circuit has created yet another Catch-22 for takings plaintiffs and lowered the Takings Clause once

more “ ‘to the status of a poor relation’ among the

17

provisions of the Bill of Rights.” Knick, 139 S. Ct. at

2169–70 (quoting Dolan, 512 U.S. at 392). Such flagrant disregard for this Court’s decision in Knick cannot be permitted to stand. Nor should the 36 million

people residing within the Fifth Circuit’s jurisdiction

be stripped of their fundamental property rights because of an uncorrected—and unreasoned—erroneous

decision. This Court’s intervention is necessary and

should not be delayed.

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

May 10, 2023

CAROLINE C. LINDSAY

Counsel of Record

HILGERS GRABEN PLLC

332 S Michigan Avenue,

Suite 121 #5612

Chicago, IL 60604

(402) 313-3480

clindsay@hilgersgraben.com