Reply 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 A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

REPLY BRIEF FOR THE PETITIONERS

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

TRACE MITCHELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

tmitchell@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, TX 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

i

TABLE OF CONTENTS

Page

REPLY BRIEF FOR THE PETITIONERS ............... 1

A. The circuit split here requires no further

percolation. ................................................. 2

B. Respondent identifies no barrier to

answering the question presented. .......... 5

C. The holding below is wrong. ...................... 7

CONCLUSION ......................................................... 11

ii

TABLE OF AUTHORITIES

Page

CASES

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

704 (9th Cir. 1992) ............................................. 4

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

of Forestry, 991 P.2d 563 (Or. Ct. App. 1999) ... 3

Brownback v. King, 141 S. Ct. 740 (2021) .......... 5, 6

Burrows v. Keene, 432 A.2d 15 (N.H. 1981) ........... 9

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

2022) ............................................................... 3, 6

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304,

(1987) ....................................................................

...........................................................2, 4, 8–9, 11

Horne v. Dep’t of Agric., 576 U.S. 350 (2015) ......... 9

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

............................................................................ 4

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

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

Manning v. Mining & Minerals Div. of the

Energy, Mins & Nat. Res. Dep’t, 144 P.3d 87

(N.M. 2006) ......................................................... 2

McKesson Corp. v. Islamic Republic of Iran, 539

F.3d 485 (D.C. Cir. 2008) ................................... 8

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

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

401 (Neb. 1994) .............................................. 2, 3

iii

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

(4th Cir.) cert. denied, 142 S. Ct. 465 (2021) . 6, 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .............................................. 9

STATUTES

28 U.S.C. § 1441 ...................................................... 3

28 U.S.C. § 1441(c)(1)(a).......................................... 3

42 U.S.C. § 1983 ...................................................... 1

OTHER AUTHORITIES

Christine Desan, Making Money: Coin, Currency,

and the Coming of Capitalism (2014) ............. 10

Blackstone’s Commentaries: With Notes of

Reference, to the Constitution and Laws, of the

Federal Government of the United States; and

of the Commonwealth of Virginia (1803)........ 10

Magna Carta cl. 28 (1215) ....................................... 9

William Sharp McKechnie, Magna Carta: A

Commentary on the Great Charter of King

John (2d ed. 1914) ........................................ 9, 10

1

REPLY BRIEF FOR THE PETITIONERS

The Petition established that there is an active

split of authority over whether the Fifth

Amendment’s Just Compensation Clause is

enforceable in the absence of some authorizing

legislation like 42 U.S.C. 1983. It further established

that this split is important—at bottom, it asks

whether

that

amendment’s

guarantee

of

compensation

is

truly

“self-executing”

and

enforceable as a matter of right, or whether

compensation is instead a matter of legislative grace.

And at least five judges of the Fifth Circuit agree:

After the Petition was filed, Judge Oldham (joined by

four others) issued a dissent from denial of rehearing

en banc, emphasizing that the panel opinion below

has “staggering implications because it renders

federal takings claims non-cognizable in any court at

any time ever.” Pet. Supp. App. 77a.

In its brief in opposition, Texas disputes almost

none of this. It largely concedes the existence of the

split, primarily arguing that this Court should refrain

from review in order to allow further percolation in

the lower courts. It asks the Court to deny certiorari

because it has unrelated legal arguments (rejected by

the district court and unaddressed by the Fifth

Circuit below) on which it claims it will eventually

prevail. And it suggests that certiorari should be

denied because the decision below is correct. None of

these is a reason to deny the petition.

2

A. The circuit split here requires no

further percolation.

1. Texas largely concedes the existence of the

circuit split described in the Petition except for a brief

suggestion that the state high courts on the other side

of the split should not count because they are

“common-law courts” that are empowered to create

their own causes of action. BIO 9. This distinction

fails for two independent reasons.

First, even if these state courts could, in theory,

create a state-law cause of action to enforce federal

constitutional guarantees, that is not what any of the

state courts cited in the petition say they are doing.

Instead, they expressly state that they are following

this Court’s commands about federal law. For

example, the New Mexico Supreme Court recognizes

a property owner’s right to file suit directly under the

Fifth Amendment because this Court “has

consistently . . . 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); accord SDDS, Inc.

v. State, 650 N.W.2d 1, 9 (S.D. 2002) (recognizing

“Fifth Amendment takings claims that originate from

the [United States] Constitution itself”). Indeed, not

one of the state courts cited in the petition purports to

be exercising its common-law authority to create a

state-law cause of action. Instead, those courts

uniformly look to this Court’s precedents to guide

their interpretation of federal law. See, e.g., Manning,

144 P.3d at 91 (citing First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304, 316 & n.9 (1987)); SDDS, Inc., 650 N.W.2d at 9

(same); Whitehead Oil Co. v. City of Lincoln, 515

3

N.W.2d 401, 405 (Neb. 1994) (same); accord Boise

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

991 P.2d 563, 567–68 (Or. Ct. App. 1999) (same). The

outcome-determinative rule in each of those cases is

that property owners have a federal right to

compensation that they may enforce by exercising

their federal right to sue directly under the Takings

Clause—exactly the proposition of law rejected by the

panel below. Pet. App. 2a.

Second, Texas’s argument overlooks the fact

that this case began in a “common-law court”—

Texas’s own. Petitioners brought claims arising

directly under the Takings Clause in state court, as

Texas courts have squarely held they are allowed to

do. City of Baytown v. Schrock, 645 S.W.3d 174, 176

(Tex. 2022). Texas then removed those cases under 28

U.S.C. 1441. Pet. App. 5a. And fair enough: A claim

under the Takings Clause is surely “a claim arising

under the Constitution,” no matter where it

originates. 28 U.S.C. 1441(c)(1)(a); see BIO 8 n.4

(defending the existence of federal jurisdiction in this

case). But that claim, originating in a common law

court, does not exist according to the decision below.

Again, the plain holding below was not that removal

was inappropriate. It was that “the Fifth Amendment

Takings Clause as applied to the states through the

Fourteenth Amendment does not provide a right of

action for takings claim against a state” regardless of

where the claim is originally filed. Pet. App. 2a. That

holding puts the Fifth Circuit directly at odds with the

courts (including the Texas Supreme Court) that have

held the Takings Clause provides exactly that right of

action, which is a split warranting this Court’s

intervention.

4

2. Instead of seriously contesting the split,

Texas instead urges the Court to deny the petition

because the split warrants further percolation. BIO

9–10. This, too, is wrong.

To begin, there has been ample time for

percolation. The first federal appellate court to hold

that a property owner may not sue directly under the

Takings Clause did so over 30 years ago. AzulPacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705

(9th Cir. 1992); see also Pet. 14–15. Since then, other

courts have had the opportunity to observe that this

holding is likely wrong. E.g., Lawyer v. Hilton Head

Pub. Serv. Dist. No. 1, 220 F.3d 298, 302 n.4 (4th Cir.

2000) (noting that Azul-Pacifico’s holding was “in

apparent conflict with [this Court’s holding in] First

English”). And a variety of other courts, including

state courts of last resort, have used those intervening

decades to adopt rules that are irreconcilable with

Azul-Pacifico. See Pet. 10–14 (collecting cases). The

panel below disagrees and holds that Azul-Pacifico

got it right in the first place. Pet. App 2a & n.1. That

is a mature split that requires this Court’s

intervention.

Moreover, Texas’s stated reason to allow

further percolation makes no sense. Texas insists that

further lower-court development is required because

most of the cases cited in the Petition pre-date this

Court’s decision in Knick v. Township of Scott, 139 S.

Ct. 2162 (2019). BIO 10. But Knick was concerned

with whether property owners could file a takings

claim in federal court without first exhausting their

state-court remedies. Id. at 2167–68. That concern

has no bearing on this case. Knick addresses when a

property owner has a complete claim under the

Takings Clause. The split of authority over the

5

question presented in this case asks whether property

owners may bring complete Takings Clause claims at

all in the absence of a legislatively created remedy.

The panel below says property owners cannot—that

there is no federal right to bring a Takings Claim, in

state or federal court, except through Section 1983.

But many courts nationwide disagree. Nothing in

Knick is likely to eliminate or illuminate that split of

authority. The petition should therefore be granted.

B. Respondent identifies no barrier to

answering the question presented.

In the alternative, the brief in opposition

suggests that this Court should deny the petition

because Texas will (it says) inevitably prevail in this

case based on other legal arguments—all of which

were rejected by the district court and none of which

were addressed by the Fifth Circuit. BIO 10–15. This,

too, presents no barrier to this Court’s review.

Indeed, while Texas frames these arguments

as a “vehicle” problem, BIO 10, it does not actually

contend that any of them is a barrier to review. Texas

does not argue (nor could it) that arguments are

jurisdictional or that any of them is logically prior to

the question presented. At bottom, Texas’s argument

is that it has other legal arguments that it believes

are meritorious. Perhaps. But Texas is hardly the

first litigant in this Court to believe it will have good

alternative arguments on remand. That belief is no

barrier to reviewing the decision below because none

of Texas’s other arguments (each of which was

rejected by the district court) was addressed by the

appellate court below. Since this Court is “a court of

review, not of first view[,]” it can (as it regularly does)

“leave it to the [Fifth] Circuit to address [these]

6

alternative arguments on remand.” Brownback v.

King, 141 S. Ct. 740, 747 n.4 (2021) (quotation marks

omitted).

But Texas’s alternative arguments are also

wrong. For example, the brief in opposition argues

that, even though Texas waived its immunity from

suit by removing this case, its immunity from

damages means any recovery here would be barred by

sovereign immunity. BIO 11–13. But Texas’s

argument does not cite a single case from the takings

context. Ibid. That omission matters because it was

the basis on which Texas lost on this point in the

district court, which specifically held (among other

things) that Texas has waived its immunity for both

state and federal takings claims. Pet. App. 20a–22a.

The Texas Supreme Court bolstered the district

court’s reasoning in a subsequent opinion, reaffirming

that the takings provisions of both the Texas and

United

States

Constitutions

“waive[]

the

government’s immunity from lawsuits—immunity

that otherwise often insulates the public treasury

from claims for damages.” City of Baytown v. Schrock,

645 S.W.3d 174, 176 (Tex. 2022). This Court may, of

course, one day wish to address the apparent

“tension” between the Takings Clause’s guarantee of

compensation and a State’s assertion of sovereign

immunity. Cf. Zito v. N.C. Coastal Resources Comm’n,

8 F.4th 281, 285–86 (4th Cir.), cert. denied, 142 S. Ct.

465 (2021); see also Pet. App.22a–23a (suggesting

that the claims here should go forward even if Texas

had not waived its sovereign immunity). But that

question is not presented here for the simple reason

that no court has ever held (or is ever likely to hold)

7

that Texas’s sovereign immunity is a barrier to

Petitioners’ claims.

And Texas fares no better with its second

alternative argument, which is that the district court

used the wrong statute of limitations. BIO 13–15.

Even if Texas were right that this inversecondemnation action should be governed by personalinjury rather than inverse-condemnation principles,

ibid., that would only mean that some, not all, of

Petitioners’ damages are outside the statute. Since

even Texas does not contend this argument is

dispositive, it is hard to see how it would hinder this

Court’s review of the question presented.

Simply put, the Fifth Circuit below answered a

single legal question—the question presented. This

Court can and should answer that same question,

even though Texas may have other arguments it

wishes to raise on remand. The petition should

therefore be granted.

C. The holding below is wrong.

Finally, Texas devotes most of its brief to the

proposition that the decision below was correct. BIO

15–24. But this, too, is no reason to deny the petition.

If Texas is right—if the decision below is correct and

the “self-executing” remedy promised by the Takings

Clause does not give property owners the right to sue

in inverse condemnation—then courts nationwide are

wrongly granting property owners rights that should

be withheld. See Pet. 10–14 (collecting cases). If Texas

is wrong, though—if property owners are entitled to

vindicate their right to just compensation without

statutory authorization—then the opinion below

wrongly “reduces the Takings Clause to nothing”

8

throughout the Fifth Circuit. Pet. Supp. App. 78a.

Either way, the petition should be granted.

Moreover, Texas (like the opinion below) is

incorrect. The crux of Texas’s argument is that

something can be “self-executing” without necessarily

creating a private right of action to enforce it. BIO 17–

21 (exploring various contexts in which this Court has

used the phrase “self-executing”). Maybe so—perhaps

not every self-executing right comes with a selfexecuting remedy.

The problem with this argument, though, is

that the Takings Clause does come with a remedy. Cf.

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

485 (D.C. Cir. 2008) (distinguishing between the

Takings Clause, which comes with an inferred cause

of action, and the Treaty of Amity, which does not).

This “Court has frequently repeated the view that, in

the event of a taking, the compensation remedy is

required by the Constitution.” First English

Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 316 (1987) (collecting cases).

The Takings Clause in not just a self-executing

provision of the Constitution. It provides a selfexecuting constitutional remedy.

In resisting this conclusion, Texas simply

ignores the text of the relevant cases. In Texas’s view,

this Court’s plain statements of the rule in First

English are simply discussing “the measure of relief.”

BIO 19. That discussion, according to Texas, says

“nothing about what cause of action a property owner

could use to obtain that compensation.” Ibid.

But this is irreconcilable with the plain text of

First English, which answers that question quite

9

directly. The Court’s opinion explains that “a

landowner is entitled to bring an action in inverse

condemnation as a result of ‘the self-executing

character of the constitutional provision with respect

to compensation[.]’” First English, 482 U.S. at 315; see

also ibid. (“Statutory recognition was not necessary.”

(citation omitted)). The claim here—the claim that

the Fifth Circuit held was not cognizable without

statutory recognition—is an action in inverse

condemnation. Pet. App. 11a. First English squarely

asserts that landowners like Petitioners are “entitled

to bring an action in inverse condemnation” under the

Fifth Amendment, and the decision below was wrong

to hold otherwise.

And this Court’s repeated insistence that the

Fifth Amendment guarantees a remedy (and,

concomitantly, the right to enforce that remedy) is no

accident. It is a direct outgrowth of centuries of AngloAmerican law that place the right to receive payment

for property—not just to have a legal right to

compensation but to actually be paid—at the center of

our legal order. Indeed, the compensation

requirement is “a principle that lies at the very

foundation of civilized society as we know it.” Burrows

v. Keene, 432 A.2d 15, 18 (N.H. 1981). The power of

government to take property for public use is

undisputed, but at least since the signing of Magna

Carta in 1215, that power has been conditioned on the

immediate payment of compensation. See Horne v.

Dep’t of Agric., 576 U.S. 350, 358 (2015) (citing Magna

Carta, cl. 28 (1215), in William Sharp McKechnie,

10

Magna Carta: A Commentary on the Great Charter of

King John 329 (2d ed. 1914)).*

That concern with immediate, actual

compensation carried over into the text of the Fifth

Amendment itself. In one of the earliest

commentaries on that Amendment, St. George Tucker

wrote that the Just Compensation Clause “was

probably intended to restrain the arbitrary and

oppressive mode of obtaining supplies for the army

. . . as was too frequently [practiced] during the

revolutionary war, without any compensation

whatever.” 1 Blackstone’s Commentaries: With Notes

of Reference, to the Constitution and Laws, of the

Federal Government of the United States; and of the

Commonwealth of Virginia 305–06 (1803).

And this Court has long interpreted the

Takings Clause in light of these long-standing

principles. The Takings Clause, like Magna Carta

before it, “does not prohibit the taking of private

* Magna Carta’s innovation was not in requiring compensation—

there was no dispute at the time that the King’s exercise of what

was then called “purveyance” required compensation for private

property taken by the crown. McKechnie, Magna Carta 329–30.

The significant change wrought by Magna Carta was its demand

for immediate compensation. Controversy over purveyance arose

because payment was often delayed or made in “exchequer

tallies”—a sort of IOU used primarily to offset future tax debts.

Id. at 330; see also Christine Desan, Making Money: Coin,

Currency, and the Coming of Capitalism 175–85 (2014). Magna

Carta thus reflects the same concern as the one animating this

Court’s Takings Clause jurisprudence: a worry that an abstract

legal right to compensation is insufficient if the property owner

is not, in fact, compensated. That concern explains why the

Takings Clause guarantees a practical remedy rather than an

abstract right.

11

property, but instead places a condition on the

exercise of that power.” First English, 482 U.S. at 314.

That condition, this Court has consistently held, is

mandatory. See Pet. 9–10. The panel below holds that

it is instead discretionary, transforming it from a

fundamental promise of Anglo-American law to a

”dead letter” contingent entirely on legislative

largesse. Pet. Supp. App. 78a. Texas’s arguments in

defense of that decision are wrong, and the petition

should therefore be granted.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

TRACE MITCHELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

tmitchell@ij.org

12

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

JUNE 23, 2023