Opposition 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

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

JOHN SCOTT

Provisional Attorney

General of Texas

BRENT WEBSTER

First Assistant Attorney

General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

BENJAMIN D. WILSON

Deputy Solicitor General

NATALIE D. THOMPSON

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700

QUE STION P RE SENTED

Ordinarily, when a private litigant seeks to vindicate

a federal constitutional right by seeking damages in a

federal court, he must identify a cause of action created

by Congress. Most commonly, he may sue the “person”

who “subjects, or causes [him] to be subjected” to a

constitutional deprivation under 42 U.S.C. section 1983.

Such a claim is not available, however, against a State

because a sovereign State is not a “person” within the

meaning of section 1983. Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 71 (1989). Yet petitioners sought to

hold the State of Texas responsible when their property

flooded during two natural disasters. The question

presented is:

Whether the Fifth Amendment’s Takings Clause, as

incorporated against the States through the Fourteenth

Amendment’s Due Process Clause, impliedly creates a

cause of action by which private parties may sue a State

for monetary damages.

(I)

II

TABLE OF CONTENTS

Page

Question Presented ............................................................ I

Introduction ........................................................................ 1

Statement ............................................................................ 2

I. Petitioners’ Suit ...................................................... 2

II. The State’s Interlocutory Appeal ......................... 3

III. The Fifth Circuit’s Decision .................................. 5

Reasons to Deny the Petition ........................................... 8

I. The Question Presented Warrants Further

Percolation in the Lower Courts. ......................... 8

II. As There Are Alternative Grounds to Dismiss

Petitioners’ Claims, This Is A Poor Vehicle to

Resolve the Question Presented. ........................ 10

A. Although Texas has waived immunity from

suit, its immunity from liability precludes

relief on plaintiffs’ claims. .............................. 11

B. Petitioners’ claims based on Hurricane

Harvey are time-barred. ................................ 13

III. The Fifth Circuit Correctly Refused to Read A

Private Cause of Action Into the Fifth

Amendment. .......................................................... 15

A. The ruling below follows this Court’s

precedent regarding implied rights of

action ............................................................... 15

B. Neither petitioners nor the dissenters

identify authority to the contrary. ................ 17

C. The potential causes of action raised in the

dissent from denial of rehearing en banc were

not raised below, so they are not properly

before this Court. ............................................ 21

Conclusion ......................................................................... 24

III

TABLE OF AUTHORITIES

Page(s)

Cases:

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................ 9, 15, 16, 18

Allodial Ltd. P’ship v. N. Tex. Tollway

Auth.,

176 S.W.3d 680 (Tex. App.—Dallas

2005, pet. denied) ..................................................... 13, 14

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) .......................................................... 8

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

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

Bell v. Hood,

327 U.S. 678 (1946) .......................................................... 8

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S.

388 (1971) .............................................................. 5, 13, 18

Bond v. United States,

572 U.S. 844 (2014) .................................................. 17–18

Brown v. De La Cruz,

156 S.W.3d 560 (Tex. 2004)............................................. 3

Brown v. Nationsbank Corp.,

188 F.3d 579 (5th Cir. 1999) ......................................... 13

Carlson v. Green,

446 U.S. 14 (1980) .......................................................... 22

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

166 U.S. 226 (1897) .................................................... 8, 16

IV

Cases (cont’d)

City of Baytown v. Schrock,

645 S.W.3d 174 (Tex. 2022)............................................. 4

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) ...................................................... 4, 9

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ........................................................ 13

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ........................................................ 21

DelCostello v. Int’l Bhd. of Teamsters,

462 U.S. 151 (1983) .................................................... 5, 13

Edelman v. Jordan,

415 U.S. 651 (1974) ........................................................ 22

Egbert v. Boule,

142 S. Ct. 1793 (2022) ................................................ 6, 17

Erie R. Co. v. Tompkins,

304 U.S. 64, 78 (1938) ...................................................... 9

First English Evangelical Lutheran

Church of Glendale v. Los Angeles

County,

482 U.S. 304 (1987) ........................................................ 19

Fletcher v. Peck,

10 U.S. 87 (1810) ............................................................ 20

Gen. Servs. Comm’n v. Little-Tex

Insulation Co.,

39 S.W.3d 591 (Tex. 2001)............................................. 12

Greenlaw v. United States,

554 U.S. 237 (2008) .................................................. 21–22

Griffin v. Hawn,

341 S.W.2d 151 (Tex. 1960)........................................... 12

V

Cases (cont’d)

Hernandez v. Mesa,

140 S.C 735 (2020)................................................ 5, 15, 18

J.I. Case Co. v. Borak,

377 U.S. 426 (1964) ........................................................ 17

Jacobs v. United States,

290 U.S. 13 (1933) .......................................................... 19

King-White v. Humble Indep. Sch. Dist.,

803 F.3d 754 (5th Cir. 2015) ......................................... 13

Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162 (2019) ............................ 1, 6, 7, 10, 17, 18

Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson,

501 U.S. 350 (1991) .......................................................... 9

Lapides v. Bd. of Regents of Univ. Sys. of

Ga.,

535 U.S. 613 (2002) .................................................... 4, 11

Lombardo v. Pa., Dep’t of Pub. Welfare,

540 F.3d 190 (3d Cir. 2008) ........................................... 11

Maine Cmty. Health Options v. United

States,

140 S. Ct. 1308 (2020) .......................................... 6, 16, 19

Medellin v. Texas,

552 U.S. 491 (2008) ........................................................ 17

Meyers ex rel. Benzing v. Texas,

410 F.3d 236 (5th Cir. 2005) ............................... 4, 11–13

Monell v. Dep’t of Soc. Servs. of City of

New York,

436 U.S. 658 (1978) ........................................................ 20

Nat’l Tr. for Historic Pres. v. City of

Albuquerque,

874 P.2d 798 (N.M. 1994) ................................................ 9

VI

Cases (cont’d)

Northwestern Fertilizing Co. v. Hyde

Park,

18 F. Cas. 393 (CC ND Ill. 1873) ........................... 20–21

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ...................................................... 9

Reata Constr. Corp. v. City of Dallas,

197 S.W.3d 371 (Tex. 2006)........................................... 12

Roberts v. United States,

445 U.S. 552 (1980) ........................................................ 18

San Jacinto River Auth. v. Medina,

627 S.W.3d 618 (Tex. 2021)........................................... 12

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................................ 8

Stroud v. McIntosh,

722 F.3d 1294 (11th Cir. 2013) ..................................... 11

Tex. Nat. Res. Conservation Comm’n v.

IT-Davy,

74 S.W.3d 849 (Tex. 2002)............................................. 12

Trant v. Oklahoma,

754 F.3d 1158 (10th Cir. 2014) ..................................... 11

Tucker v. City of Corpus Christi,

622 S.W.3d 404 (Tex. App.—Corpus

Christi 2020, pet. denied).............................................. 14

United States v. Hudson & Goodwin,

11 U.S. (7 Cranch) 32 (1812)) ......................................... 9

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020) .............................................. 21, 23

Webster v. Fall,

266 U.S. 507 (1925) ........................................................ 21

Whole Woman’s Health v. Jackson,

142 S. Ct. 522 (2021) ...................................................... 22

VII

Cases (cont’d)

Will v. Michigan Dep’t of State Police,

491 U.S. 58 (1989) ............................................ I, 4, 16, 18

Yee v. City of Escondido, Cal., 503 U.S. 519

(1992) ............................................................................... 22

Ex parte Young,

209 U.S. 123 (1908) ........................................................ 22

Constitutional Provisions, Statutes, and Rules:

U. S. Const.

art. I, § 10 ........................................................................ 20

amend. IV ....................................................................... 18

amend. V ................................................. 1–3, 5–10, 16–21

amend. XIV ........................................ 2–6, 8, 9, 13–19, 21

28 U.S.C.:

§ 1292(b) ............................................................................ 3

§ 1331 ................................................................................. 7

§ 1367(a) ............................................................................ 3

§ 1441 ................................................................................ 7

§ 1441(a) ............................................................................ 3

42 U.S.C. § 1983 ........................... I, 4, 6, 7, 13, 15, 18, 19, 21

Tex. Const. art. I § 17............................................................ 2

Tex. Civ. Prac. & Rem. Code § 16.003(a) ..................... 5, 14

Other Authorities:

Aditya Bamzai & David M. Goldman, The

Takings Clause, the Tucker Act, and

Knick v. Township of Scott,

YALE J. OF REGULATION: NOTICE &

COMMENT (Oct. 9, 2018) ............................................... 23

VIII

Other Authorities (cont’d)

Andy Latto & Robbie Berg, Tropical

Storm Imelda, NATIONAL HURRICANE

CENTER (2020) ................................................................. 1

Jonathan R. Siegel, Waivers of State

Sovereign Immunity and the Ideology

of the Eleventh Amendment, 52 DUKE

L.J. 1167 (2003) .............................................................. 11

Self-executing, Black’s Law Dictionary

(11th ed. 2019) ................................................................ 17

William Michael Treanor, The Origins and

Original Significance of the Just

Compensation Clause of the Fifth

Amendment, 94 YALE L.J. 694 (1985) ........................ 23

I NT RO DUC TIO N

Petitioners blame the State of Texas for the fact that

their homes and property flooded during two of the

wettest storms ever to hit the State: Hurricane Harvey

in August 2017 and Tropical Storm Imelda in September

2019. Pet. App. 4a–5a.1 More than two years after

Hurricane Harvey flooded east Texas, petitioners sued

the State of Texas seeking compensation. The State

sought dismissal on the grounds that (1) Congress has

not provided a federal cause of action for Fifth

Amendment takings claims against States; (2) the claims

were barred by Texas’s sovereign immunity from

liability for damages, and (3) the claims were, as to

Hurricane Harvey, untimely. Because the Fifth Circuit

agreed with Texas on the first ground, it never reached

the other two grounds upon which the State sought

dismissal.

The petition does not warrant this Court’s attention.

It has been only four years since this Court overturned

decades of precedent to allow takings claims to be

pursued in federal court without first litigating in state

court. Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct.

2162, 2170 (2019). The state-court decisions on which

petitioners rely for a split of authority (at 10–14) largely

predate that decision. Even if that were not the case, this

would be a poor vehicle to resolve any split because there

are other dispositive grounds upon which petitioners’

claims should be dismissed. Finally, the Fifth Circuit got

it right: this Court has said that it is up to Congress to

Andy Latto & Robbie Berg, Tropical Storm Imelda at 3,

NATIONAL HURRICANE CENTER (2020) (naming Harvey the

“wettest cyclone on record in the U.S.” and Imelda the “7th

wettest”).

1

(1)

2

create causes of action, whether to vindicate

constitutional rights or otherwise. And Congress has not

provided a cause of action to enforce the Fourteenth

Amendment or the Fifth Amendment’s Takings Clause

by seeking monetary compensation from States.

S TA TEM ENT

I. Petitioners’ Suit

According to the operative complaint, petitioners

own property north of Interstate Highway 10 in east

Texas. Pet. App. 4a.2 Petitioners allege that during

Hurricane Harvey and, later, Tropical Storm Imelda, a

concrete barrier that was constructed to divide traffic on

the east- and west-bound lanes on IH-10 acted as a dam,

preventing flood waters from moving onto the southern

lanes of IH-10. ROA.1170–71. Thus, they allege, the flood

waters backed up north of the highway, resulting in

“impoundment of rainwater runoff on [petitioners’]

property for days.” ROA.1174. This impoundment,

petitioners allege, caused damage to their real and

personal property. ROA.1174–75. For example, they

allege “appliances, furniture, tools, machinery,” and

other personal property were damaged or destroyed by

the water. ROA.1175.

Petitioners sued the State of Texas for inverse

condemnation under the Fifth Amendment’s and the

Texas Constitution’s respective takings clauses. U.S.

Const. amend. V; Tex. Const. art. I § 17; see ROA.1165–

67. The first of their now-consolidated lawsuits was filed

on May 27, 2020, in state court. ROA.74–96. The State

removed the case to the Southern District of Texas based

Because the case comes before the Court in a motion-todismiss posture, the State assumes but does not concede the

allegations in the operative complaint to be true.

2

3

on federal question jurisdiction under 28 U.S.C. section

1441(a) and supplemental jurisdiction under 28 U.S.C.

section 1367(a). ROA.68–96. That case was subsequently

consolidated with three other lawsuits that brought the

same claims. ROA.1127–29; see also ROA.1940–74,

ROA.2286–2391, ROA.2733–2839.

Once the lawsuits were consolidated in the Southern

District of Texas, the State moved for judgment on the

pleadings as to petitioners’ Fifth Amendment takings

claims (among others not relevant to the petition).

ROA.1199–1219. The district court denied the State’s

motion but certified “that there is a controlling question

of law as to which there is substantial ground for

difference of opinion” and thus allowed an interlocutory

appeal under 28 U.S.C. section 1292(b). Pet. App. 35a;

contra Pet. 7–10 (suggesting the issue is squarely

resolved by this Court’s caselaw).

II. The State’s Interlocutory Appeal

The Fifth Circuit granted the State’s unopposed

petition for permission to appeal on three questions. Pet.

App. 36a–37a. Based solely on one of those issues—

petitioners’ lack of a cause of action to sue the State for

damages—the Fifth Circuit vacated and remanded the

decision of the district court. Pet. App. 2a–3a.

First, the State argued that petitioners lack a private

cause of action to sue a State for compensation under the

Fourteenth Amendment based on a Fifth Amendment

taking. No one disputes that the Texas Supreme Court,

which is a common-law court,3 has recognized a cause of

action for a taking under state law. Pet. App. 2a (citing,

Brown v. De La Cruz, 156 S.W.3d 560, 563 n.14 (Tex. 2004)

(recognizing “it is sometimes proper” for Texas’ “common-law

courts to create causes of action federal tribunals would not”).

3

4

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

178 (Tex. 2022)). But “[f]ederal courts, unlike state

courts, are not general common law courts,” City of

Milwaukee v. Illinois & Michigan, 451 U.S. 304, 312

(1981), and the Fourteenth Amendment itself does not

create a cause of action. Petitioners could not identify

any statutory cause of action allowing them to sue a State

to enforce the Fourteenth Amendment’s guarantee of

just compensation for a taking, as States are not

“persons” within the meaning of 42 U.S.C. section 1983.

Will, 491 U.S. at 71. Nor did petitioners argue there is an

equitable or common-law cause of action that might allow

them to sue for a taking. So the State argued that

petitioners did not have a cause of action allowing them

to bring suit for monetary compensation from the State

of Texas. See Pet. App. 1a–3a.

Second, the State’s permissive interlocutory appeal

raised its sovereign immunity from liability. The State

does not dispute that removal to federal court waives its

sovereign immunity from suit. See Lapides v. Bd. of

Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002).

But under Fifth Circuit precedent—which petitioners do

not challenge in this Court—the State’s removal did not

waive sovereign immunity from liability, which is

determined by reference to Texas law. See Meyers ex rel.

Benzing v. Texas, 410 F.3d 236, 253 (5th Cir. 2005). The

Fifth Circuit did not reach this second certified issue

because it ruled for the State on the cause-of-action

question.

Third, the State argued that petitioner’ claims based

on Hurricane Harvey were untimely. Because section

1983 has no express statute of limitations, the default

rule in suits alleging a violation of federal rights is to

“apply the most closely analogous statute of limitations

5

under state law.” DelCostello v. Int’l Bhd. of Teamsters,

462 U.S. 151, 158 (1983). In this instance, that was two

years. Tex. Civ. Prac. & Rem. Code § 16.003(a). And that

same two-year limitations period would apply in other

implied-cause-of-action cases under Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), or to takings claims under

the Texas Constitution. Because Hurricane Harvey

occurred in 2017, and the earliest of these consolidated

claims was not filed until 2020, those claims were barred.

Having reversed, the Fifth Circuit did not reach this

issue either.

III. The Fifth Circuit’s Decision

The Fifth Circuit panel agreed with the State on the

first issue, holding “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 state.” Pet. App. 2a. The Fifth Circuit

cited this Court’s decision in Hernandez v. Mesa, 140 S.C

735 (2020), which says that “a federal court’s authority to

recognize a damages remedy must rest at bottom on a

statute enacted by Congress,” id. at 742, along with

Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704

(9th Cir. 1992), which holds that “a takings plaintiff has

‘no cause of action directly under the United States

Constitution,’” Pet. App. 2a (quoting Azul-Pacifico, 973

F.2d at 705).

The Fifth Circuit denied rehearing en banc over the

dissent of five judges. Supp. Pet. App. 43a. Judge

Higginson, who was on the panel, explained its decision

on the basis that “implying constitutional causes of

action is ‘a disfavored judicial activity,’ and . . . implying

such a cause of action here would infringe separation-ofpowers principles.” Supp. Pet. App. 51a (citation

6

omitted) (quoting Egbert v. Boule, 142 S. Ct. 1793, 1803

(2022)). He further noted that just “[t]hree terms ago,”

every Justice of this Court “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.’” Supp. Pet. App. 51a

(quoting Maine Cmty. Health Options v. United States,

140 S. Ct. 1308, 1328 n.12 (2020) (cleaned up)). And

“[s]ince a cause of action against the federal government

is not express in the Fifth Amendment, if such a cause of

action exists, it must be judicially created.” Supp. Pet.

App. 53a (citations and internal quotation marks

omitted).

Judge Higginson further opined that a court would

improperly “arrogate legislative power by implying a

cause of action against the [S]tates in the Takings Clause

of the Fifth Amendment as incorporated by the Due

Process Clause of the Fourteenth Amendment.” Pet.

App. 56a (quotation marks omitted). This would be

particularly improper here for four reasons: (1) “[a]n

alternative remedial structure already exists in state

inverse-condemnation law,” (2) “Congress decided to

provide a damages remedy [in section 1983] for takings

claims against municipalities and certain local

government units, but not states,” (3) “[i]mplying a

judicial remedy against states implicates federalism,”

and (4) the court could not “predict the systemwide

consequences of recognizing a cause of action under the

Fifth and Fourteenth Amendments for takings claims

against states.” Pet. App. 56a–57a (citations and internal

quotation marks omitted).

Judge Higginbotham, who was also on the panel, also

explained his reason for siding with Texas: for purposes

of the Fifth Amendment, “[i]t is plain that ‘self-

7

executing’” in Knick—a term repeatedly intoned

throughout the petition (at i, 3, 5, 7. 8, 10, 11, 12, 13, 14,

15, 16)—“speaks only to the completeness of the claim

itself, the point at which a takings claim is ready for a

court.” Supp. Pet. App. 46a. “The completeness of the

claim is the sole usage of the term” and “[i]ts purpose” in

Knick “was to retreat from the earlier Williamson

County doctrine.” Supp. Pet. App. 46a. As Judge

Higginbotham recognized, because of the identity of the

defendant, the claim at issue in Knick could be brought

under section 1983, and thus, this Court “‘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.”

Supp. Pet. App. 47a (alterations in original) (quoting

Knick, 139 S. Ct. at 2174).

The dissenting judges concluded that this “appeal

should’ve begun and ended with the State’s decision to

remove to federal court under 28 U.S.C. § 1441.” Supp.

Pet. App. 72a. First, without wrestling with the

distinction between immunity from liability and

immunity from suit, they contended that “the State’s

decision to remove obviously constitutes a waiver of its

sovereign immunity.” Supp. Pet. App. 72a. Second, the

dissenters opined that because the State removed based

on arising-under jurisdiction, there must be a

corresponding federal cause of action—because “as a

general matter, suits are removable under § 1441 only

when federal law creates the cause of action.” Supp. Pet.

App. 73a. The dissenters reasoned this meant either that

the district court was correct in refusing to dismiss

petitioners’ Fifth Amendment claims, or that the case

should have been remanded to state court because there

8

is no arising-under jurisdiction. Supp. Pet. App. 75a.4

The dissenters also worried that “the panel decision

reduces the Takings Clause to nothing” because

plaintiffs would have either no or very limited avenues to

sue the State under the Fifth Amendment. Supp. Pet.

App. 78a–79a.

REA SO NS TO D ENY THE PE TITI O N

I. The Question Presented Warrants

Percolation in the Lower Courts.

Further

Review of the question presented should be denied as

premature. In seeking review, petitioners rely primarily

(at 10–14) on a putative split between state courts of last

resort and two federal circuits that are not typically

aligned in such a split: the Fifth and Ninth. Petitioners

concede (at 14–17) there is no federal circuit split

concerning whether plaintiffs may bring a takings claim

directly under the Fifth or Fourteenth Amendment

against a State, and most federal courts have yet to

weigh in on the question. The Court should allow further

percolation before addressing this putative split for at

least two reasons.

First, the present split is illusory as there is a

fundamental difference between the state and federal

courts on the question of whether to recognize an implied

private right of action. To be clear, the State does not

The dissent did not explain how to reconcile that theory with

the principle that a plaintiff ’s claim need not be meritorious in order

to establish jurisdiction, which exists so long as the plaintiff

presents a “colorable claim ‘arising under’ the Constitution or laws

of the United States.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513

(2006) (citing Bell v. Hood, 327 U.S. 678, 681–85 (1946)). “[T]he

absence of a cause of action is a merits problem, not a jurisdictional

one,” as the dissent observed. Supp. Pet. App. 69a (citing, inter alia,

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)).

4

9

dispute that the Fifth Amendment’s just-compensation

requirement applies to the States through the

Fourteenth Amendment. See Chi., B. & Q.R. Co. v. City

of Chicago, 166 U.S. 226, 238 (1897). But recognizing that

the substantive right is incorporated against the States

does not answer whether that includes a cause of action

for damages. See Ramos v. Louisiana, 140 S. Ct. 1390,

1405 n.63 (2020). And this Court has repeatedly

recognized that “[r]aising up causes of action where a

statute has not created them may be a proper function

for common-law courts, but not for federal tribunals.”

Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (citing

Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J.,

concurring)); see also, e.g., City of Milwaukee, 451 U.S.

at 312 (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78

(1938); United States v. Hudson & Goodwin, 11 U.S. (7

Cranch) 32 (1812)). State courts like those on the

opposite side of the putative split are just such commonlaw courts. See, e.g., Nat’l Tr. for Historic Pres. v. City

of Albuquerque, 874 P.2d 798, 801 (N.M. 1994). Because

courts on one side of the split have the ability to

recognize their own causes of action, and courts on the

other do not, there is no square split on whether the

Constitution itself provides a cause of action. And, and

discussed below (at 22–24), petitioners have never

argued that there is a state-law cause of action they can

use to sue the State under the Fourteenth Amendment

for a taking.

Second, there has been very little time for lower

courts to consider the relevant issue of whether the

Constitution creates a cause of action that may be

pursued in federal court. After all, this Court allowed

takings claims to be brought in federal court in the first

10

instance only four years ago. See Knick, 139 S. Ct. at

2170. Previously, takings plaintiffs pursued their takings

claims in state court before bringing suit in federal court

for a taking under the federal Constitution. Nearly all of

the state-court decisions upon which petitioners rely (at

10-14) predate Knick and thus could not have taken it

into account. And Judge Higginson’s opinion is the only

one of which the State is aware in which a federal judge

addresses the interaction between Knick and this

Court’s implied-private-right-of-action jurisprudence in

any detail. Additional time for these ideas to be explored

by other courts of appeals would aid in this Court’s

eventual review should the Court decide the question

presented merits its consideration in an appropriate

case.

II. As There Are Alternative Grounds to Dismiss

Petitioners’ Claims, This Is A Poor Vehicle to

Resolve the Question Presented.

This case is not an appropriate case in which to

review the question presented. Contra Pet. 18–19.

Although the Fifth Circuit determined that this case

should be dismissed because of the lack of a cause of

action, at least two other grounds exist to dismiss some

or all of plaintiffs’ claims: sovereign immunity from

liability (which bars all of plaintiffs’ claims) and the

statute of limitations (which bars the claims based on

damage caused by Hurricane Harvey). These additional

dispositive issues undermine petitioners’ claimed

urgency (at 17–18): regardless of this Court’s ruling on

their cause of action, their Fifth Amendment takings

claims will fail. That is not a worthwhile use of this

Court’s or the parties’ resources.

11

A. Although Texas has waived immunity from

suit, its immunity from liability precludes

relief on plaintiffs’ claims.

To start, under Fifth Circuit precedent that

petitioners do not challenge, Texas’s sovereign immunity

from liability provides an independent ground to dismiss

plaintiffs’ claims. To be clear, the State has never

disputed that removal of the case waived its sovereign

immunity from suit—an issue on which petitioners and

the dissent spill much ink. Pet. 2–3, 6; Supp. App. Pet.

App. 72a. Indeed, it is blackletter law that “removal is a

form of voluntary invocation of a federal court’s

jurisdiction sufficient to waive the State’s otherwise valid

objection to litigation of a matter . . . in a federal forum.”

Lapides, 535 U.S. at 624. That is not, however, the

question.

Although removal to federal court may waive

objections to proceeding in federal court, several

circuits, including the Fifth Circuit, hold removal does

not waive state sovereign immunity to liability. See, e.g.,

Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014);

Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir. 2013);

Lombardo v. Pa., Dep’t of Pub. Welfare, 540 F.3d 190,

198 (3d Cir. 2008); Meyers, 410 F.3d at 255. As explained

in an article cited favorably in Fifth Circuit precedent:

[R]emoval of a case by a state defendant should

be understood to waive the [State’s] special

privilege from being sued in federal court, and to

permit the federal court to hear any claim against

the [state] that might have been heard in the state

court from which the case was removed. It should

not, however, waive the defendant’s immunity

from any claims from which it would have been

immune in state court.

12

Jonathan R. Siegel, Waivers of State Sovereign

Immunity and the Ideology of the Eleventh

Amendment, 52 DUKE L.J. 1167, 1235 (2003); see

Meyers, 410 F.3d at 254–55.

Put another way, in Fifth Circuit precedent that

petitioners do not challenge, removal says a great deal

about where a case may be litigated—but nothing about

whether the State can be held liable for monetary

damages. Meyers, 410 F.3d at 255. The State’s immunity

from liability is a question of state law because “the

Constitution permits and protects a state’s right to

relinquish its immunity from suit while retaining its

immunity from liability, or vice versa.” Id.

Under

Texas

law,

“[s]overeign

immunity

encompasses two principles: immunity from suit and

immunity from liability.” Gen. Servs. Comm’n v. LittleTex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).

“Immunity from suit bars a suit against the State unless

the Legislature expressly gives consent,” and

“[i]mmunity from liability protects the State from

judgments even if the Legislature has expressly given

consent to sue.” Id.; see also San Jacinto River Auth. v.

Medina, 627 S.W.3d 618, 622 (Tex. 2021) (“Sovereign and

governmental immunity protect the state and its political

subdivisions, respectively, from suit and liability absent

the state’s express waiver.”).

Texas has immunity from liability in any suit seeking

“to control state action,” including through a claim for

money damages. Tex. Nat. Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002) (“Where the

purpose of a proceeding against state officials is to

control action of the State or subject it to liability, the

suit is against the State and cannot be maintained

without the consent of the Legislature.”) (citing, inter

13

alia, Griffin v. Hawn, 341 S.W.2d 151, 152 (Tex. 1960)).

Petitioners’ takings claims seek to control the State by

compelling it to pay them monetary damages. See Reata

Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006); cf. City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 715 (1999) (takings claims

are traditional actions at law seeking to recover

damages). Such a claim is barred by the State’s immunity

from liability under Fifth Circuit precedent. See Meyers,

410 F.3d at 255.

Because petitioner does not challenge the Fifth

Circuit’s rule respecting Texas’s immunity from

liability, this is a poor vehicle to address the question

presented: even if the Fifth Circuit was incorrect that

petitioners lack a cause of action directly under the

Fourteenth Amendment, review will not benefit

petitioners whose claims will ultimately fail.

B. Petitioners’ claims based

Harvey are time-barred.

on

Hurricane

This is also a poor vehicle to address the question

presented because the bulk of the monetarycompensation claims are time-barred. Where a federal

claim is not subject to an express statute of limitations,

the default rule is to “apply the most closely analogous

statute of limitations under state law.” DelCostello, 462

U.S. at 158; see also id. at 158 n.12 (applying a state

statute of limitations is the “rule of thumb”). In section

1983 and Bivens suits, federal courts apply the forum

State’s statute of limitations for general personal injury

claims. See Brown v. Nationsbank Corp., 188 F.3d 579,

590 (5th Cir. 1999). In Texas, the applicable limitations

period is two years. See id.; see King-White v. Humble

Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015).

14

The same result would obtain under the Texas

Constitution’s Takings Clause, where claims alleging

facts like petitioners’ would also be subject to a two-year

limitations period. See Allodial Ltd. P’ship v. N. Tex.

Tollway Auth., 176 S.W.3d 680, 684 (Tex. App.—Dallas

2005, pet. denied) (citing Tex. Civ. Prac. & Rem. Code

§ 16.003(a)). A two-year statute of limitations applies to

claims alleging damage to real property, which includes

diminution in its value, and to all claims based on

personal property. See Tucker v. City of Corpus Christi,

622 S.W.3d 404, 408 (Tex. App.—Corpus Christi 2020,

pet. denied); Allodial, 176 S.W.3d at 684. That is what

petitioners allege. ROA.1174–75. But petitioners asked

the district court to instead apply the ten-year

prescriptive period for adverse possession under Texas

law. ROA.1232. True, Texas courts apply that limitations

period to inverse condemnation claims based on “an

actual physical invasion or an appropriation of the land,”

but under Texas law, flooding is not “an actual physical

invasion or an appropriation of the land.” Allodial, 176

S.W.3d at 684. So even petitioners’ state-law takings

claims under the Texas Constitution—which remain live

in this case—will be subject to a two-year limitations

period.

Under a two-year statute of limitations, any claims

arising from damages caused by Hurricane Harvey are

time-barred. Hurricane Harvey occurred in August

2017. ROA.1172–73. Although this petition arises from

the consolidation of four different complaints brought by

77 plaintiffs, Pet. App. 5a–6a, the earliest was filed on

May 27, 2020—more than six months after the

limitations period lapsed, ROA.74–96. As a result, only

those plaintiffs who relied on damages from Tropical

Storm Imelda could recover—even if they could find a

15

way around the State’s immunity, and the Court could

find a cause of action in the Fourteenth Amendment.

Because some or all of petitioners’ federal takings

claims fail regardless of the answer to the question

presented, this case is a poor vehicle for considering

whether petitioners have a cause of action to sue a State

for a taking under the Fourteenth Amendment. A case

where the petitioners ultimately will not obtain relief is

a poor investment for this Court’s limited resources and

the resources of the parties.

III. The Fifth Circuit Correctly Refused to Read A

Private Cause of Action Into the Fifth

Amendment.

Finally, review should be denied because the Fifth

Circuit—and, before it, the Ninth—got it right: no

statute allows petitioners to seek damages from the

State, and there is “no cause of action directly under the

United States Constitution” to sue for a taking. AzulPacifico, 973 F.2d at 705. The petition cites no other

cause of action—it is undisputed Congress has not

enacted one that can be used to sue States—and

petitioners have never relied upon the causes of action

proposed by the judges who dissented from denial of

rehearing en banc. As a result, those alternative theories

are not before the Court and cannot be used to impeach

the reasoning of the Fifth Circuit panel.

A. The ruling below follows this Court’s

precedent regarding implied rights of action.

Although this Court used to be more open to

recognizing causes of action in a common-law manner,

today, “a federal court’s authority to recognize a

damages remedy [against a State] must rest at bottom

on a statute enacted by Congress.” Hernandez, 140 S. Ct.

16

at 742; accord Sandoval, 532 U.S. at 286. Petitioners do

not attempt shoehorn their claim into any statute. For

good reason. The closest provision is section 1983, but all

agree that section 1983 does not create a cause of action

against States, which are not “persons” within the

meaning of that provision. Will, 491 U.S. at 71.

This analysis does not change because petitioners

raise a constitutional claim. To the contrary, this Court

recently explained that the Fifth Amendment does not

contain any express cause of action to sue the federal

government for a taking. See Maine Cmty. Health

Options, 140 S. Ct. at 1328 n.12; id. at 1334 & n.3 (Alito,

J., dissenting). Given that the Fifth Amendment

originally applied only to the federal government, Chi.,

B. & Q.R. Co., 166 U.S. at 238, it would be strange for the

Fifth Amendment to create a claim against the States

that it did not create against the federal government.

And, as Judge Higginson explained, a judicially created

cause of action to sue the federal government under the

Fifth Amendment is not obviously part of the

constitutional requirement that was incorporated

against the States through the Fourteenth Amendment’s

Due Process Clause. Supp. Pet. App. 53a–54a. So any

cause of action to sue the States under the Fifth and

Fourteenth Amendments would have to be an

independent judicial creation. Supp. Pet. App. 5a–54a

(Higginson, J.).

This Court’s modern jurisprudence regarding the

federal separation of powers does not allow for the

judicial creation of a cause of action to sue a State on a

takings theory. Under what this Court has described as

an “ancien regime,” it was considered “‘the duty of the

courts to be alert to provide such remedies as are

necessary to make effective the congressional purpose’

17

expressed by a statute.” Sandoval, 532 U.S. at 287 (citing

J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)). Today,

by contrast, “in all but the most unusual circumstances,

prescribing a cause of action” to enforce the Fourteenth

Amendment “is a job for Congress, not the courts.”

Egbert, 142 S. Ct. at 1800. The Fifth Amendment

Takings Clause is not that unusual circumstance. To the

contrary, Knick unequivocally stated that takings claims

are governed by the same “general rule[s]” as “any other

claim grounded in the Bill of Rights.” Knick, 139 S. Ct.

at 2172–73. Because as Judge Higginbotham explained,

Congress has not chosen to create a cause of action

against States, Supp. Pet. App. 50a, the Fifth Circuit was

entirely correct to respect that choice.

B. Neither petitioners nor the dissenters identify

authority to the contrary.

Petitioners’ primary contention is that precedent has

described the Fifth Amendment’s Takings Clause as

“self-executing.” But there is nothing magical to that

term when it comes to recognizing a cause of action

where none has been authorized by Congress. And

neither the cases relied upon in the petition or identified

by the dissenting judges says otherwise.

1. To start, recognizing that a legal provision is selfexecuting does not mean that it creates a private cause

of action. To call a legal document “self-executing” is to

state that is “effective immediately without the need of

any type of implementing action.” See Self-executing,

Black’s Law Dictionary (11th ed. 2019). For example, a

self-executing treaty “operates of itself without the aid

of any legislative provision” by contrast to a treaty that

“can only be enforced pursuant to legislation to carry [it]

into effect.” Medellin v. Texas, 552 U.S. 491, 505 (2008)

(cleaned up); see also, e.g., Bond v. United States, 572

18

U.S. 844, 875 n.6 (2014) (Scalia, J., concurring). “The

Fifth Amendment privilege against compelled selfincrimination is not self-executing”; it must be properly

and timely invoked. Roberts v. United States, 445 U.S.

552, 559 (1980). As a result, a statement that the Fifth

Amendment Takings Clause is self-executing means that

it is positive law of its own force without further action.

But, as Judge Higginson discussed, “self-executing”

does not mean that there is automatically a private cause

of action for damages if the clause is violated. See Supp.

Pet. App. 59a–63a. After all, the Supremacy Clause is

self-executing on courts, but it does not create a cause of

action. Alexander, 532 U.S. at 286–87. And the Fourth

Amendment applies of its own force to federal officials,

but someone complaining his Fourth Amendment rights

have been violated still cannot sue a federal official for

damages unless his claim fits within the narrow

parameters of recognized Bivens actions. See, e.g.,

Hernandez, 140 S. Ct. at 739.

2. Petitioners’ authority is not to the contrary.

Petitioners understandably place great reliance (at 9) on

Knick, but no one disputed that Congress had created a

cause of action allowing the Knick plaintiffs to sue. 139

S. Ct. at 2168. After all, the Knick defendant was a local

government, not a State, and consequently the plaintiff

could invoke section 1983, id. at 2168—which petitioners

may not, Will, 491 U.S. at 71. Thus, when this Court

referred to the “self-executing Fifth Amendment,” 139

S. Ct. at 2171, it was not discussing the cause of action

but when the injury occurred. That is, the Court was

saying that the plaintiff did not need to wait until

compensation had been denied in state proceedings

before filing suit in federal court under section 1983. 139

S. Ct. at 2172–73. That does not mean the Fifth

19

Amendment or Fourteenth Amendment creates a cause

of action.

Petitioners’ other authorities are similarly

inapposite. First English Evangelical Lutheran Church

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

which was also a suit against a local government subject

to section 1983 liability—addressed the measure of

relief, not whether the plaintiff had identified a viable

cause of action. Id. at 310. When the Court noted that

“claims for just compensation are grounded in the

Constitution itself,” id. at 315, it did so to explain its

holding that the government owes compensation even for

temporary takings, see id. at 318–19. The Court said

nothing about what cause of action a property owner

could use to obtain that compensation.

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

addressed the amount of compensation required by the

Fifth Amendment in a suit against the United States. See

id. at 16. There was no question of the cause of action.

Thus, when this Court explained that the suits at issue

were “founded on the Constitution of the United States,”

it did so in holding only that “[t]he fact that

condemnation proceedings were not instituted and that

the right was asserted in suits by the owners did not

change the essential nature of the claim.” Id. at 16.

Contrary to petitioners’ reliance on Jacobs, the Court

did not address the availability of a cause of action

against the federal government directly under the Fifth

Amendment for nearly another century. As discussed

above (at 6), when the Court did so recently, it

recognized that there is no express cause of action to be

found in the Constitution. Maine Cmty. Health Options,

140 S. Ct. at 1328 n.12. And none of petitioners’ later

authority shows that the Fifth Circuit erred in applying

20

the same rule in interpreting the same constitutional

provision as applied against the States.

3. The historical authorities cited by the dissent

from denial of rehearing—authorities upon which

petitioners never before relied—do no better in

rebutting the Fifth Circuit’s conclusion. First, the

dissent cites pre-incorporation cases in which federal

courts adjudicated “takings-related claims” against

States or state officials. Supp. Pet. App. 83a–84a. The

dissent was careful to describe these as examples of

“takings-related claims,” as many are not takings cases.

In Fletcher v. Peck, 10 U.S. 87 (1810), for example, this

Court held that a Georgia law, which dealt with land

conveyances by the State, was invalid under the

Contracts Clause. Id. at 138–39 (discussing U.S. Const.

art. I, § 10); see Supp. Pet. App. 84a. It is hard to see how

a case about a different constitutional provision has

anything to say about whether there is a cause of action

to enforce the Fifth Amendment’s Takings Clause. And

to the extent the examples do involve takings claims,

they could at most have involved state just-compensation

guarantees, because the federal just-compensation right

did not then apply to the States. As a result, they say

nothing about whether there is a private cause of action

to enforce a right that did not apply.

Second, the dissent cited post-incorporation cases

brought against local governments. Supp. Pet. App. 84a.

These cases share the same problems as most of those

relied upon by petitioners: local governments then, as

now, could be sued under the statutory cause of action

found in section 1983, which has been in existence since

1871. E.g., Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658, 689–90 (1978) (citing Northwestern

Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No.

21

10,336) (CC ND Ill. 1873)). It is immaterial that the cited

decisions did not cite section 1983. “Questions which

merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute

precedents.” Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157, 170 (2004) (quoting Webster v. Fall, 266

U.S. 507, 511 (1925)). Decisions in which the parties did

not dispute the plaintiffs’ cause of action are not

precedent for the proposition that there is an implied

cause of action to be found in the Fifth or Fourteenth

Amendments. And even if they were, “at most, these

cases support an inference that a cause of action exists

against local governments.” Supp. Pet. App. 58a.

Because Congress has created a cause of action for such

suits, they are no infringement on Congress’s authority

to determine how to enforce the Fourteenth

Amendment. But this case is not brought against a local

government.

C. The potential causes of action raised in the

dissent from denial of rehearing en banc were

not raised below, so they are not properly

before this Court.

Finally, the Fifth Circuit dissent from denial of

rehearing en banc suggested two possible causes of

action under which plaintiffs might proceed. Supp. Pet.

App. 75a, 83a–84a. “In our adversarial system of

adjudication, [courts] follow the principle of party

presentation.” United States v. Sineneng-Smith, 140 S.

Ct. 1575, 1579 (2020). Under this principle, “in both civil

and criminal cases, in the first instance and on appeal,”

courts “rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter

of matters the parties present.” Id. (discussing Greenlaw

22

v. United States, 554 U.S. 237 (2008)). Because

petitioners failed to plead or argue those causes of action

below, it is no surprise that the Fifth Circuit panel did

not address them. Id. They are not properly before this

Court now. See Yee v. City of Escondido, Cal., 503 U.S.

519, 533 (1992); Carlson v. Green, 446 U.S. 14, 17, n. 2

(1980).

In any event, neither of the dissent’s suggestions

helps petitioners. First, the dissent suggested that

petitioners might be able to proceed under the equitable

cause of action recognized in Ex Parte Young. Supp. Pet

App. 75a (citing Ex Parte Young, 209 U.S. 123 (1908)).

But Petitioners have not sued a state official; they sued

“The State of Texas.” Pet. App. 5a–6a. It is blackletter

law that Ex Parte Young creates a “narrow exception

grounded in traditional equity practice—one that allows

certain private parties to seek judicial orders in federal

court preventing state executive officials from enforcing

state laws that are contrary to federal law.” Whole

Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021)

(emphasis added). Moreover, even if petitioners could

identify a proper defendant, their complaint seeks

money damages, ROA.1172–75, ROA.1197, which are

categorically unavailable under Ex parte Young.

Edelman v. Jordan, 415 U.S. 651, 677 (1974).

Second, the dissent raised the prospect of proceeding

based on what it described as one of the “whole host of

takings-related claims” that courts entertained at the

founding “under various causes of action,” which the

dissent understood to be “borrow[ed] common-law

causes of action from the States where [federal courts]

sat.” Supp. Pet. App. 83a–84a. Assuming the dissent’s

historical account is accurate, petitioners are not pro se

litigants, and “our system is designed around the

23

premise that parties represented by competent counsel

know what is best for them, and are responsible for

advancing the facts and arguments entitling them to

relief.” Sineneng-Smith, 140 S. Ct. at 1579 (cleaned up).

Petitioners evidently did not think this type of obscure

and ill-defined “takings-related claim[],” Supp. Pet. App.

83a, was in their best interest because they neither

pleaded such a cause of action before the district court,

nor pressed one in the court of appeals.

The decision not to pursue such a claim was entirely

rational: again, petitioners want recompense for their

flooding-related losses. See ROA.1197. English and

colonial law generally did not require compensation for

government takings of property, William Michael

Treanor, The Origins and Original Significance of the

Just Compensation Clause of the Fifth Amendment, 94

YALE L.J. 694, 695, 698 (1985); the federal Constitution’s

just-compensation requirement was a “novelty” that

occasioned considerable comment “[i]n the first years

after ratification,” id. at 715. It appears that James

Madison included a compensation requirement in his

draft for the Bill of Rights of his own accord, and the

provision was enacted by Congress with no debate and

little amendment. See id. at 708–10, 713–14. It was not

until decades later that the just-compensation

requirement “won general acceptance.” Id. at 714; see

Aditya Bamzai & David M. Goldman, The Takings

Clause, the Tucker Act, and Knick v. Township of Scott,

YALE J. OF REGULATION: NOTICE & COMMENT (Oct. 9,

2018). This history renders the existence of a commonlaw cause of action for takings at the Founding more

dubious than the dissent suggests. And in any event,

petitioners’ demand for certiorari, like their briefing

24

below, depends on the argument that they can bring suit

“directly under the Takings Clause.” E.g., Pet. at 10.

C O NCL USI O N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN SCOTT

Provisional Attorney

General of Texas

BRENT WEBSTER

First Assistant Attorney

General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

BENJAMIN D. WILSON

Deputy Solicitor General

NATALIE D. THOMPSON

Assistant Solicitor General

JUNE 2023

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700