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

No. 22-913

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

In The

Supreme Court of the United States

---------------------------------♦--------------------------------RICHARD DEVILLIER, et al.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On 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

---------------------------------♦--------------------------------ANASTASIA P. BODEN

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

CAROLINE C. LINDSAY

Counsel of Record

HILGERS GRABEN PLLC

332 S. Michigan Ave.,

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 ........................................................

3

I.

II.

III.

This Court’s Precedents, Including the

Recent Decision in Knick v. Township of

Scott, Require Reversal of the Decision

Below .........................................................

3

The Text and History of the Takings

Clause Make Clear That It Creates a Direct Cause of Action against the States ....

9

Affirming the Decision Below Would Effectively Nullify a Fundamental Constitutional

Protection for Millions of Americans ......... 11

CONCLUSION..................................................... 13

ii

TABLE OF AUTHORITIES

Page

CASES

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

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

Edelman v. Jordan, 415 U.S. 651 (1974) ......................9

First English Evangelical Lutheran Church of

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

304 (1987) .......................................................... 3, 4, 9

Jacobs v. United States, 290 U.S. 13 (1933) .................4

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) .....2–9

Lucas v. South Carolina Coastal Council, 505

U.S. 1003 (1992) ........................................................7

Maine Cmty. Health Options v. United States,

140 S. Ct. 1308 (2020) ........................................... 8, 9

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

(N.M. 2006) ................................................................7

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...........7

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).............................7

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

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

Williamson County Reg’l Plan. Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) ........................ 2, 4–7

iii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ..............................................9–12

U.S. Const. amend. XIV ........................................ 10, 11

STATUTES

28 U.S.C. § 1331 .................................................... 5, 8, 9

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

42 U.S.C. § 1983 ........................................................ 7, 9

OTHER AUTHORITIES

Akhil Reed Amar, The Bill of Rights: Creation

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

Ballotpedia, Judicial Election Methods by State,

https://ballotpedia.org/Judicial_election_methods_

by_state ...................................................................... 12

Ilya Somin, Federalism and Property Rights,

2011 U. CHI. LEGAL F. 53 ...........................................8

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 (2019) ................................................ 4, 8–12

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

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

Ilya Somin is a professor of law at the Antonin

Scalia Law School at George Mason University, B. Kenneth Simon Chair in Constitutional Studies at the

Cato Institute, 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.

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

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.

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 holding below demonstrates at best a massive

neglect of this Court’s precedents and at worst an egregious resistance to them. Those decisions, along with

the text and history of the Takings Clause, make clear

that no statutory cause of action is required to bring a

federal takings claim against a state government. In

holding otherwise, the Fifth Circuit has engaged in the

widescale judicial nullification of a fundamental constitutional protection for millions of Americans. The

Court should reverse.

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

ARGUMENT

I.

This Court’s Precedents, Including the Recent Decision in Knick v. Township of Scott,

Require Reversal of the Decision Below.

This Court has long recognized the “self-executing

character” of the Takings Clause. First English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304, 315 (1987); see Knick, 139

S. Ct. at 2171 (quoting First English, 482 U.S. at 315)

(the Takings Clause is “self-executing . . . with respect

to compensation”). Indeed, “it has been established at

4

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

that claims for just compensation are grounded in the

Constitution itself.” Id. (citation omitted). Under these

precedents, a plaintiff ’s invocation of the Fifth Amendment is sufficient to support a cause of action against

a state or local government for an uncompensated taking.

The Court recently reiterated this principle in

Knick. There, the Court eliminated Williamson County’s

arbitrary requirement that a property owner litigate

an inverse-condemnation claim in state court before he

can file 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.

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”

5

that Barred Takings Cases from Federal Court, 2018–

19 CATO SUPREME CT. REV. 153, 157–71 (2019) (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 defied this directive.

According to the cursory decision below, Fifth

Amendment 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. Yet despite this purported absence of a federal

cause of action, the Fifth Circuit 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.

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

6

claims against states are effectively isolated from

any judicial review—state or federal. At least takings

plaintiffs in the earlier 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 dissent from denial of rehearing en banc: 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 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 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, 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

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

of a poor relation’ among the provisions of the Bill of

Rights.” 139 S. Ct. at 2169 (citation omitted).

By effectively foreclosing federal takings claims

against states, the Fifth Circuit defied not only this

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

takings 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.

In his concurrence in the denial of rehearing en

banc below, Judge Higginbotham argued 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).

8

Judge Higginbotham also advanced 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

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.

In a separate concurrence in the denial of rehearing en banc, Judge Higginson asserted that this

Court’s precedent actually support the panel decision,

relying on a single footnote in Maine Community

Health Options v. United States, 140 S. Ct. 1308 (2020).

There, 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

9

itself absent a statutory cause of action. Id. at 1331

n.15. By 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 Community Health Options

could reasonably be construed as abrogating or overruling that earlier decision. And it certainly did not

overrule Knick.

II.

The Text and History of the Takings Clause

Make Clear That It Creates a Direct Cause

of Action against the States.

Even if these well-established precedents did not

dictate reversal of the decision below, the provision’s

text and history would. The Fifth Amendment’s Takings Clause provides a direct cause of action against

state governments no less than other provisions of the

Bill of Rights do. And nothing in the text or history of

the Constitution suggests otherwise. See Somin, 2018–

19 CATO SUPREME CT. REV. at 160–62.

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, retrospective compensation is the explicit

10

and exclusive remedy for violations of the Fifth

Amendment’s Taking Clause.

The constitutional text is clear on this point. It

reads, in relevant part: “nor shall private property be

taken for public use, without just compensation.” U.S.

Const. amend. V. Notably, it does not prohibit the government from taking private property for public use—

indeed, the provision is predicated on the assumption

that such takings will occur. Rather, the clause proscribes such takings “without just compensation,” thus

creating a guarantee not to be free from government

action but to be compensated for such action should it

occur. Id. (emphasis added).

Because the Fifth Amendment has been incorporated against the states, the right to just compensation

applies equally to property owners whose property is

taken by state governments. “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.” Somin, 2018–19

CATO SUPREME CT. REV. at 161 (collecting sources).

Specifically, the framers of the Fourteenth Amendment were concerned about the threat posed by exConfederate forces in southern state legislatures to the

property rights of former slaves and white unionists.

Thus, Rep. John Bingham, a leading framer of the

Fourteenth Amendment, emphasized that the Takings

Clause must be applied against the states to protect

“citizens of the United States, whose property, by

State legislation, has been wrested from them, under

11

confiscation.” Id. at 161–62 (citing Akhil Reed Amar,

The Bill of Rights: Creation and Reconstruction (1998)).

In his opinion below, Judge Higginson opined that,

although the Takings Clause, generally, was incorporated against state governments, any “damages remedy” for “just compensation” was not. Pet. Supp. App.

53a–55a. But there is no historical evidence that the

Fourteenth Amendment somehow incorporated only

part of the Takings Clause against the states while

excluding the express entitlement to just compensation. Such a bifurcated approach would essentially gut

this Fifth Amendment right, because without a justcompensation remedy there can be no remedy at all.

III. Affirming the Decision Below Would Effectively Nullify a Fundamental Constitutional

Protection for Millions of Americans.

If the ruling below is affirmed, state governments

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. Such a decision would render the Takings Clause a dead letter and

effectively nullify the property rights of millions of

Americans across the country.

Even in the extremely unlikely event that the

states would decide not to take full advantage an affirmance 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

12

vital tool to avoid potential bias in state courts. See

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

especially true considering that, in the vast majority of

states,3 judges are elected by popular vote 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).

A judgment from this Court affirming the decision

below would constitute a widescale judicial nullification of a fundamental constitutional right in contravention of decades of this Court’s precedents, not to

mention the text and history of the Takings Clause itself. This Court should reverse the judgment below and

restore the property rights of the millions of Americans

affected by the Fifth Circuit’s erroneous decision.

---------------------------------♦--------------------------------3

Only seven of the fifty states do not select any judges by

popular election. See Ballotpedia, Judicial Election Methods by

State, https://ballotpedia.org/Judicial_election_methods_by_state.

13

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

November 17, 2023

ANASTASIA P. BODEN

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

CAROLINE C. LINDSAY

Counsel of Record

HILGERS GRABEN PLLC

332 S. Michigan Ave.,

Suite 121 #5612

Chicago, IL 60604

(402) 313-3480

clindsay@hilgersgraben.com