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 AMICUS CURIAE OF

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

____________________

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Avenue, S.W.

Suite 1000W

Washington, D.C. 20024

(202) 406-3600

PAUL BEARD II

*Counsel of Record

FisherBroyles LLP

453 S. Spring St., # 400-1458

Los Angeles, CA 90013

(818) 216-3988

paul.beard@fisherbroyles.com

SUSAN V. WARNER

*Admission Pending

FisherBroyles LLP

1221 Brickell Ave., Ste. 900

Miami, FL 33131

Counsel for Amicus Curiae

i

QUESTION PRESENTED

May a person whose property is taken without

compensation seek redress under the self-executing

Takings Clause even if the legislature has not

affirmatively provided them with a cause of action?

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. ii

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

INTERESTS OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 3

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

I.

Texas’s Sovereign Immunity Does Not

Preclude a Federal Takings Claim for

Just Compensation Against a State ............ 4

II.

Federal Courts Are Just As Equipped

As State Courts To Adjudicate Federal

Takings Claims for Compensation ............ 16

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

iii

TABLE OF AUTHORITIES

Cases

74 Pinehurst LLC v. New York,

59 F.4th 557 (2d Cir. 2023) ................................... 6

Alden v. Maine,

527 U.S. 706 (1999) .......................................... 9-11

Armstrong v. United States,

364 U.S. 40 (1960) ................................................. 7

Bay Point Props., Inc. v. Mississippi Transp.

Comm’n.,

937 F.3d 454 (5th Cir. 2019) ................................. 6

Cedar Point Nursery v. Hassid,

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

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

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

Citadel Corp. v. Puerto Rico Highway Auth.,

695 F.2d 31 (1st Cir. 1982) ................................. 6-7

City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999) ............................................... 1

Cook v. AVI Casino Enters.,

548 F.3d 718 (9th Cir. 2008) ............................... 14

Cuevas v. BAC Home Loans Servicing, LP,

648 F.3d 242 (5th Cir. 2011) ............................... 17

Devillier v. Texas,

63 F.4th 416 (5th Cir. 2023) ........................ 2, 4, 16

iv

Dolan v. City of Tigard,

512 U.S. 374 (1994) ......................................... 1, 15

Erie R. Co. v. Thompkins,

304 U.S. 64 (1938) ............................................... 17

Estate of Hage v. United States,

687 F.3d 1281 (Fed. Cir. 2012) ............................ 18

Ex parte Young,

209 U.S. 123 (1908) .................................... 6, 14-15

Fazzino v. Roe,

2021 U.S. Dist. LEXIS 258123

(W.D. Tex. Aug. 23, 2021) ................................... 18

First English Evangeical Lutheran Church of

Glendale v. Cnty. of Los Angeles,

482 U.S. 304 (1987) ............................. 5, 7-8, 10-13

Florida Rock Indus. v. United States,

18 F.3d 1560 (Fed. Cir. 1994) .............................. 18

Garrett v. Illinois,

612 F.2d 1038 (7th Cir. 1980) ............................... 7

Hans v. Louisiana,

134 U.S. 1 (1890) ................................................ 5-6

Harbert Int’l, Inc. v. James,

157 F.3d 1271 (11th Cir. 1998) ............................. 6

Hutto v. South Carolina Ret. Sys.,

773 F.3d 536 (4th Cir. 2014) ................................. 6

Jacobs v. United States,

290 U.S. 13 (1933) ............................................... 10

v

Kirby Forest Indus., Inc. v. United States,

467 U.S. 1 (1984) ................................................. 10

Kelo v. City of New London,

545 U.S. 469 (2005) ......................................... 1, 18

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ............................ 1, 8, 10-11

Ladd v. Marchbanks,

971 F.3d 574 (6th Cir. 2020) ................................. 6

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

535 U.S. 613 (2002) ............................................... 5

Loveladies Harbor v. United States,

28 F.3d 1171 (Fed. Cir. 1994) .............................. 18

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ....................................... 1, 13

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) ......................................... 16

Pakdel v. City & Cnty. of San Francisco,

636 F. Supp. 3d 1065 (N.D. Cal. 2022) ............... 18

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .................................... 1, 13-14

Penn Central Transp. Co. v. New York

City,

438 U.S. 104 (1978) ............................................. 14

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) ................................................. 6

vi

San Diego Gas & Electric Co. v. San Diego,

450 U.S. 621 (1981) ............................................... 8

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

261 U.S. 299 (1923) ............................................. 10

Seminole Tribe v. Florida,

523 F.3d 948 (9th Cir. 2008) ................................. 9

Seven Up Pete Venture v. Schweitzer,

517 U.S. 44 (1996) ................................................. 6

Sloan v. GM, LLC,

287 F. Supp. 3d 840 (N.D. Cal. 2018) ................. 17

Tahoe Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency,

535 U.S. 302 (2002) .......................................... 9-10

Turrett Steel Corp. v. Manuel Int’l, Inc.,

612 F. Supp. 387 (W.D. Pa. 1985) ....................... 17

United States v. Causby,

328 U.S. 256 (1946) ............................................. 10

Walker v. Armco Steel Corp.,

446 U.S. 740 (1980) ............................................. 17

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) ............................................. 17

Will v. Michigan Dep’t of State Police,

491 U.S. 58 (1989) ................................................. 6

Williams v. Utah Dep’t of Corr.,

928 F.3d 1209 (10th Cir. 2019) ............................. 6

vii

Constitutions

U.S. Const., Amend. V .......................................... 7, 10

U.S. Const., Amend. XI ........................................... 5, 7

U.S. Const., Amend. XIV ....................................... 9-10

Other Authorities

Amicus Brief of the Board of County

Commissioners of the County of La

Plata, in Support of the Respondents

State of Rhode Island, et al.,

Palazzolo v. Rhode Island, No. 992047, 2011 U.S. S. Ct. Briefs LEXIS

265 (U.S. Jan. 3, 2021) ........................................ 14

Brief for the United States As Amicus

Curiae Supporting Appellee, First

English

Evangelical

Lutheran

Church of Glendale v. Cnty. of Los

Angeles, NO. 85-1199, 1986 U.S. S.

Ct. Briefs LEXIS 107 (U.S. Nov. 4,

1986)................................................................ 12-13

Byron Ruby, Would the Eleventh

Amendment Survive on Mars?, 49

S.U. L. Rev. 1 (2021) ............................................ 15

Eric Berger, The Collision of the Takings

and State Sovereign Immunity

Doctrines, 63 Wash. & Lee L. Rev. 493

(2006) ........................................................ 11, 15-16

Respondent’s Brief of the Merits, Lucas

v. South Carolina Coastal Council,

No. 91-453, 1992 U.S. S. Ct. Briefs

LEXIS 83 (S.C. Jan. 31, 1992) ............................ 13

1

INTERESTS OF AMICUS CURIAE1

Amicus curiae American Farm Bureau

Federation (AFBF) was formed in 1919 and is the

largest non-profit general farm organization in the

United States. Representing about six-million

member families in all 50 States and Puerto Rico,

AFBF’s members grow and raise every type of

agricultural crop and commodity produced in the

United States. Its mission is to protect, promote, and

represent the business, economic, social, and

educational interests of American farmers and

ranchers. To that end, AFBF regularly participates in

litigation, including as an amicus in this Court on

important federal takings issues. See e.g., Cedar Point

Nursery v. Hassid, 141 S. Ct. 2063, 2075-76 (2021);

Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019); Kelo v.

City of New London, 545 U.S. 469 (2005); Palazzolo v.

Rhode Island, 533 U.S. 606 (2001); City of Monterey v.

Del Monte Dunes, 526 U.S. 687 (1999); Dolan v. City

of Tigard, 512 U.S. 374 (1994); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992).

AFBF’s members own or lease substantial

amounts of land, on which they depend for their

livelihoods and on which all Americans depend for the

supply of high quality, affordable food, fiber, and other

basic necessities. Because that land is subject to

1 All counsel of record for the parties in this case received

timely notice of, and provided written consent to, the filing of this

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

whole or in part, and no party or counsel for any party made a

monetary contribution towards the preparation or submission.

No person other than amici, their members or counsel made a

monetary contribution towards the preparation or submission of

this brief.

2

increasingly onerous regulation, particularly by

States and local governments, AFBF and its members

are vitally interested in ensuring their property

interests are not taken without just compensation, as

required by the Fifth Amendment to the United States

Constitution. American farmers and ranchers need

the protection of the Takings Clause if they are to find

economically feasible ways to remain in the

agriculture business—the business of feeding the

American people.

At stake in this case is the ability of farmers

and other landowners in the Fifth Circuit to have their

takings claims for just compensation against a State

heard in federal and even state courts. Devillier v.

Texas, 63 F.4th 416 (5th Cir. 2023) (Oldham, J.,

dissenting from denial of en banc rehearing)

(observing that the panel decision ensures that

“property owners in our circuit can no longer litigate

Takings Clause claims in any forum, state or federal”).

Unless reversed, the decision below will deprive

AFBF’s members of their fundamental right to

compensation where the State has taken their

property.

Given its considerable interest in this case,

AFBF seeks to supplement the petitioner’s brief by

emphasizing two key points: (1) the Eleventh

Amendment should not shield Texas—or any other

State—from takings claims for compensation, and (2)

federal courts are just as equipped as state courts to

adjudicate federal takings claims for compensation.

3

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

AFBF anticipates that Texas will argue, as it

did below, that the Eleventh Amendment gives it

blanket immunity against petitioners’ takings claims.

Further, Texas likely will argue that takings claims

for compensation against States belong in the statecourt system, because state courts are somehow better

positioned to decide takings claims, which purportedly

turn on state-law definitions of property rights. If

Texas makes these arguments, and the Court reaches

them, the Court should reject them out-of-hand.

First, Texas’s sovereign immunity does not bar

petitioner’s federal takings claim for just

compensation.

The

Fifth

and

Fourteenth

Amendments provide a property owner with a selfexecuting and automatic right to compensation for a

taking of his private property for a public use—

irrespective of the particular government entity

committing the taking. The Amendments bind the

Federal, State, and local governments. In ratifying

those Amendments, the people carved out an

exception to common-law and constitutionally-based

sovereign immunity principles, in order to allow

owners to vindicate the express right granted to them

(just compensation) by the Constitution. To shut the

lower-federal courthouse doors to such claims for

compensation, simply because they are brought

against a State, would be to arbitrarily put the

Takings Clause on an unequal footing with other

enumerated rights, such as the First, Second, and

Fourth Amendments. The Bill of Rights does not

4

countenance such different treatment among express

constitutional rights.

Second, there is no merit to the claim that state

courts are better equipped than federal courts to

adjudicate federal takings claims for compensation.

While it is true that state law generally determines

whether the object of an alleged taking is “property”

for purposes of the Takings Clause, the vast majority

of claims do not turn on that issue. Rather, takings

claims for compensation generally turn on federal-law

determinations of whether a taking has occurred and

whether the taking serves a public purpose. In any

event, federal courts can and regularly do decide

state-law questions. There is no discernible policy

reason for abandoning federal takings claims against

States to the state-court system. Indeed, federal

courts are equally able, if not better positioned, to

adjudicate such federal claims.

For these reasons, the Court should reverse the

Fifth Circuit’s decision.

ARGUMENT

I.

Texas’s Sovereign Immunity Does Not

Preclude a Federal Takings Claim for Just

Compensation Against a State

Texas argued below that its sovereign

immunity precluded the owners’ federal takings

claims—even after Texas chose to remove them to

federal court and affirmatively elected to submit itself

to federal-court jurisdiction. Devillier, 63 F.4th at 429

(denial of hearing en banc) (Oldham, J., dissenting).

Clearly, Texas waived any purported claim to

5

sovereign immunity when it voluntarily invoked—and

voluntarily submitted to—the federal district’s

jurisdiction upon removal. See, e.g., Lapides v. Bd. of

Regents of Univ. Sys. of Ga., 535 U.S. 613, 618, 624

(2002) (“A State remains free to waive its Eleventh

Amendment immunity from suit in a federal court.”).

Accordingly, given the procedural fact of Texas’s

removal, the Court should find no “sovereign

immunity” bar to the owners’ takings claim.

However, if the Court finds no waiver and

reaches the substantive issue of the intersection of the

Eleventh Amendment and the Fifth Amendment’s

Takings Clause, the Court should hold that the former

gives way to the latter. The Takings Clause provides

a self-executing damages remedy to owners whose

private property a State has taken for a public use.

First English Evangelical Lutheran Church of

Glendale v. Cnty. of Los Angeles, 482 U.S. 304, 315-16

(1987). As such, owners may sue a State for takings

damages—i.e., just compensation—in federal court.

The Eleventh Amendment states: “[t]he

Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const., amend.

XI. As construed by this Court, “[t]he Eleventh

Amendment grants a State immunity from suit in

federal court by citizens of other States, U.S. Const.,

Amdt. 11, and by its own citizens as well, Hans v.

Louisiana, 134 U.S. 1 (1890).” Lapides, 535 U.S. at

616. Generally, “the Eleventh Amendment bars

federal courts from adjudicating claims against a

6

State, as well as its agencies and agents.” 74 Pinehurst

LLC v. New York, 59 F.4th 557, 570 (2d Cir. 2023)

(citing Will v. Michigan Dep’t of State Police, 491 U.S.

58, 66, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)). As

the Second Circuit recently summarized it, “[t]he

Eleventh Amendment’s so-called ‘jurisdictional bar’

applies ‘regardless of the nature of the relief sought,’”

but with an “exception . . . for claims for prospective

relief against state officials in their official capacities.”

74 Pinehurst, 59 F.4th at 570 (quoting Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984) (citing Ex parte Young, 209 U.S. 123, 159-60

(1908)). Further, the Eleventh Amendment has been

construed—atextually—to bar a State’s own citizens

from suing the State in federal court. Hans, 134 U.S.

1.

While this Court never has squarely decided

the issue, lower courts have held that the Eleventh

Amendment bars even federal takings claims for

damages against nonconsenting States. 74 Pinehurst,

59 F.4th at 570; see also Hutto v. South Carolina Ret.

Sys., 773 F.3d 536, 552 (4th Cir. 2014) (holding “that

the Eleventh Amendment bars Fifth Amendment

taking claims against States in federal court when the

State’s courts remain open to adjudicate such

claims”); Bay Point Props., Inc. v. Mississippi Transp.

Comm’n, 937 F.3d 454, 456-57 (5th Cir. 2019) (same);

Ladd v. Marchbanks, 971 F.3d 574, 579-80 (6th Cir.

2020) (same); Seven Up Pete Venture v. Schweitzer,

523 F.3d 948, 956 (9th Cir. 2008) (same); Williams v.

Utah Dep’t of Corr., 928 F.3d 1209, 1213-14 (10th Cir.

2019) (same); Harbert Int’l, Inc. v. James, 157 F.3d

1271, 1277 (11th Cir. 1998) (same); see also Citadel

Corp. v. Puerto Rico Highway Auth., 695 F.2d 31, 34

7

(1st Cir. 1982) (holding that federal courts may not

award monetary relief for a State taking); Garrett v.

Illinois, 612 F.2d 1038, 1040 (7th Cir. 1980) (same).

Construing the Eleventh Amendment to

immunize any State, like Texas, from justcompensation claims under the Fifth Amendment is

in strong tension with the text and purpose of the

Takings Clause remedy, as well as this Court’s

takings precedents.

The Takings Clause prohibits “private

property” from being “taken for public use, without

just compensation.” U.S. Const., amends. X; XIV

(incorporated against the States). The purpose of the

compensation requirement is to ensure that that

government does not unconstitutionally require

property owners to foot a bill that the general public

should pay. As the Court has explained, “[t]he Fifth

Amendment’s guarantee that private property shall

not be taken for a public use without just

compensation was designed to bar Government from

forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by

the public as a whole.” Armstong v. United States, 364

U.S. 40, 49 (1960).

This Court has made clear that the right to just

compensation is self-executing and automatic. Thus,

the moment a taking for a public use occurs,

compensation is due from the government. As the

Court explained in First English:

We have recognized that a landowner is

entitled to bring an action in inverse

8

condemnation as a result of the ‘selfexecuting character of the constitutional

provision with respect to compensation

....’ As noted in JUSTICE BRENNAN's

dissent in San Diego Gas & Electric Co.

[v. San Diego], 450 U.S. [621,] 654-655

[1981], it has been established at least

since Jacobs v. United States, 290 U.S.

13 (1933), that claims for just

compensation are grounded in the

Constitution itself ....

First English, 482 U.S. at 315 (internal citations

omitted). More recently, the Court affirmed that same

principle articulated in First English, concluding that

“[b]ecause of ‘the self-executing character’ of the

Takings Clause ‘with respect to compensation,’ a

property owner has a constitutional claim for just

compensation at the time of the taking.” Knick v. Twp.

of Scott, 139 S. Ct. 2162, 2171 (2019) (emphasis added)

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

Of course, when the Fifth Amendment was

ratified, it applied only to the Federal Government.

But that changed with ratification of the Fourteenth

Amendment, which ensured that the Fifth

Amendment—and, with it, the Takings Clause’s “just

compensation” remedy—would be applied against the

States, as well. Chicago, B. & Q.R. Co. v. City of

Chicago, 166 U.S. 226, 239-41 (1897) (Fourteenth

Amendment’s Due Process Clause incorporates

Takings Clause against the States); see also TahoeSierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302, 306 n.1 (2002) (The

“‘Just Compensation Clause’ . . . applies to the States

9

as well as the Federal Government.”). With the

Takings Clause’s self-executing damages remedy

applying to the States, the question became: Can a

takings claimant sue a State in federal court, for just

compensation—despite the fact that the Eleventh

Amendment seems to suggest that the States have

sovereign immunity against such a suit? The answer

is an unequivocal “yes.”

In the context of congressional enforcement of

the rights that the Fourteenth Amendment protects,

the Court has been clear that the Amendment’s

ratification displaced part of the States’ sovereign

immunity. See U.S. Const. amend. XIV, § 5 (“The

Congress shall have the power to enforce, by

appropriate legislation, the provisions of this

article.”). In Alden v. Maine, 527 U.S. 706 (1999), the

Court held that, “in adopting the Fourteenth

Amendment, the people required the States to

surrender a portion of the sovereignty that had been

preserved to them by the original Constitution, so that

Congress may authorize private suits against

nonconsenting States pursuant to its § 5 enforcement

power.” Id. at 756 (emphasis added). “By imposing

explicit limits on the powers of the States and

granting Congress the power to enforce them, the

Amendment ‘fundamentally altered the balance of

state and federal power struck by the Constitution.’”

Id. (quoting Seminole Tribe v. Florida, 517 U.S. 44, 59

(1996)). As the Court in Alden explained, “[w]hen

Congress enacts appropriate legislation to enforce this

Amendment, federal interests are paramount, and

Congress may assert an authority over the States

which would be otherwise unauthorized by the

Constitution.” Alden, 527 U.S. at 756.

10

The Court’s reasoning applies with equal, if not

greater, force to the Takings Clause and its effect on

state sovereign immunity. As noted above, when the

State takes private property for a public use, the

Takings Clause automatically requires just

compensation. U.S. Const., amend. V; XIV; Knick, 139

S. Ct. at 2171 (“Because of ‘the self-executing

character’ of the Takings Clause ‘with respect to

compensation,’ a property owner has a constitutional

claim for just compensation at the time of the taking.”

(internal citation omitted)). No congressional or other

“authorization” is necessary to make that remedy

immediately available to property owners and to

thereby instantly ripen a cause of action for

compensation. “[T]he right to recover just

compensation for property taken” is “guaranteed by

the Constitution” and “rest[s] upon the Fifth

Amendment,” such that neither “[s]tatutory

recognition” nor any other outside mechanism is

“necessary” to create a cause of action therefor. Jacobs

v. United States, 290 U.S. 13, 16 (1933)2; see also

Knick, 139 S. Ct. at 2171 (“Although Jacobs concerned

a taking by the Federal Government, the same

reasoning applies to takings by the State.”).3 In other

Jacobs “does not stand alone, for the Court has

frequently repeated the view that, in the event of a taking, the

compensation remedy is required by the Constitution.” First

English, 482 U.S. at 316 (citing, inter alia, Kirby Forest Indus.,

Inc. v. United States, 467 U.S. 1, 5 (1984); United States v.

Causby, 328 U.S. 256, 267 (1946); and Seaboard Air Line R. Co.

v. United States, 261 U.S. 299, 304-306 (1923).

3 The Court in Knick was adamant that the compensation

remedy guaranteed by the United States Constitution was selfexecuting and independent of any other remedy the State may

2

11

words, the “just compensation” right is readily

enforceable against any government entity—

including the States—by the owner whose property

has been taken. Following Alden’s reasoning, in

adopting the Fifth Amendment’s Takings Clause, “the

people required the States to surrender a portion of

the sovereignty that had been preserved to them by

the original Constitution, so that . . . private suits

against nonconsenting States” may be instituted

Alden, 527 U.S. at 756; see also Eric Berger, The

Collision of the Takings and State Sovereign

Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 498

(2006) (arguing that the Takings Clause “trump[s]

state

sovereign

immunity

by

automatically

abrogating—or stripping—the immunity that states

usually enjoy in actions at law”).

That the Takings Clause’s self-executing

remedy displaces state sovereign immunity finds

support in this Court’s treatment of the issue in First

English. There, the United States, as amicus curiae in

support of the county appellee, argued that both

federal and state sovereign immunity from damages

claims (absent waiver) established that “there is no

self-effectuating damage remedy available under the

Fifth Amendment.” Brief for the United States As

provide: “The availability of any particular compensation

remedy, such as an inverse condemnation claim under state law,

cannot infringe or restrict the property owner’s federal

constitutional claim—just as the existence of a state action for

battery does not bar a Fourth Amendment claim of excessive

force. The fact that the State has provided a property owner with

a procedure that may subsequently result in just compensation

cannot deprive the owner of his Fifth Amendment right to

compensation under the Constitution, leaving only the state law

right.” Knick, 139 S. Ct. at 2171.

12

Amicus Curiae Supporting Appellee, (hereinafter,

“Brief for the United States”), First English

Evangelical Lutheran Church of Glendale v. Cnty. of

Los Angeles, No. 85-1199, 1986 U.S. S. Ct. Briefs

LEXIS 107, **30-31 (U.S. Nov. 4, 1986). The Solicitor

General quoted the Federalist Papers for the

proposition that sovereign immunity “‘is now enjoyed

by the government of every State in the Union,’” as

well as “the Government of the United States.” Id.,

**31-32. The Court rejected the United States’

“sovereign immunity” argument:

The Solicitor General urges that the

prohibitory nature of the Fifth

Amendment, . . . combined with

principles of sovereign immunity,

establishes that the Amendment itself is

only a limitation on the power of the

Government to act, not a remedial

provision. The cases cited in the text, we

think, refute the argument of the United

States that ‘the Constitution does not, of

its own force, furnish a basis for a court

to award money damages against the

government.’ Though arising in various

factual and jurisdictional settings, these

cases make clear that it is the

Constitution that dictates the remedy for

interference with property rights

amounting to a taking.

First English, 482 U.S. at 316 n.9 (emphasis added)

(quoting Brief of United States, supra).

13

Subsequent decisions of this Court indicate

that States do not enjoy sovereign immunity from

federal takings claims for just compensation. For

example, in Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), a property owner sued a South

Carolina agency for compensation, alleging a state

law effected a taking of his property. Id. at 1009. The

trial court sided with the owner, ordering the State to

“pay ‘just compensation’ in the amount of

$1,232,387.50.” Id. After the South Carolina Supreme

Court reversed, the owner sought review from this

Court. At no point in the litigation, including in this

Court, did South Carolina raise a “sovereign

immunity” defense. See, e.g., Respondent’s Brief on

the Merits, Lucas v. South Carolina Coastal Council,

No. 91-453, 1992 U.S. S. Ct. Briefs LEXIS 83 (S.C.

Jan. 31, 1992) (no mention of sovereign immunity).

Nevertheless, the Court had no trouble proceeding to

the merits of the owner’s claim. The Court ultimately

reversed the South Carolina Supreme Court with

instructions to reconsider the owner’s claim in light of

the Court’s “total taking” test. Lucas, 505 U.S. at

1030-31.

In Palazzolo v. Rhode Island, 533 U.S. 606

(2001), the property owner sued Rhode Island,

arguing “the State’s wetlands regulations,” as applied

by a state agency to his parcel “had taken the property

without compensation in violation of the Fifth and

Fourteenth Amendments” and seeking justcompensation “damages . . . in the amount of

$3,150,000.” Palazzolo, 533 U.S. at 615-16. Yet the

Court reviewed the claim without regard to Eleventh

Amendment, finding that the owner’s claim was ripe

and stated a takings claim under Penn Central

14

Transp. Co. v. New York City, 438 U.S. 104 (1978).

Palazzolo, 533 U.S. at 632. This, despite the fact that

the “sovereign immunity” issue was raised, albeit not

by the parties.4 An amicus brief filed by a Colorado

county in support of Rhode Island urged the Court to

hold that Rhode Island’s sovereign immunity barred

the petitioner’s claim for damages, arguing: “While

the Takings Clause, of its own force, creates a federal

right of action seeking ‘just compensation,’ it is well

established that the United States is immune from

liability under the Takings Clause absent a specific

waiver of its immunity.” Amicus Brief of the Board of

County Commissioners of the County of La Plata,

Colorado, in Support of the Respondents State of

Rhode Island, et al., Palazzolo v. Rhode Island, No. 992047, 2001 U.S. S. Ct. Briefs LEXIS 265 (U.S. Jan. 3,

2021), **31-32. But the Court declined to answer,

instead proceeding to substantively review the claim.

Acknowledging that takings claimants can sue

nonconsenting States in federal court ensures that the

“just compensation” right is treated no differently

than any other right enshrined in the Bill of Rights.

Consider that the Eleventh Amendment doesn’t

preclude claims against States, in federal court, for

violations of free speech, free exercise, due process, or

Second Amendment rights. Ex parte Young, 209 U.S.

123 (exempting from Eleventh Amendment federalcourt claims for equitable relief against state officers).

4 Despite Rhode Island’s not having raised a “sovereign

immunity” defense, this Court could have considered it and held

that it barred the takings claim there. “A sovereign can assert

immunity at any time during judicial proceedings,” and the

courts “have occasionally considered the issue sua sponte.” Cook

v. AVI Casino Enters., 548 F.3d 718, 724 (9th Cir. 2008).

15

But if it’s true that the Eleventh Amendment bars a

federal-court claim that seeks to vindicate the “just

compensation” right against a State, it will be the only

right among the Bill of Rights whose violation cannot

be remedied with an action originating in federal

court. With the rare exception of this Court’s review of

a state-court decision, the federal courthouse doors

will be closed to just-compensation claims against

States. That simply cannot be. And it is contrary to

this Court’s admonition that there is “no reason why

the Takings Clause of the Fifth Amendment, as much

a part of the Bill of Rights as the First Amendment or

Fourth Amendment, should be relegated to the status

of a poor relation in these comparable circumstances.”

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

The Court has not definitively resolved the

apparent conflict between the Eleventh Amendment

and property owners’ right to compensation under the

Takings Clause. One commentator recently wondered,

“[D]o the Eleventh Amendment and state sovereign

immunity doctrines override the Takings Clause?”

Byron Ruby, Would the Eleventh Amendment Survive

on Mars?, 49 S.U. L. Rev. 1, 14 (2021). Another

commentator explored the unanswered “paradoxes

arising from the collision of the Court’s recent takings

and statute sovereign immunity doctrines”—

specifically, whether the Takings Clause’s selfexecuting nature “can, by its own force, abrogate—or

strip—the state of the sovereign immunity it would

otherwise enjoy in actions for damages.” Berger,

supra, at 497-98. This case may present an

opportunity to resolve “fundamentally incompatible”

provisions of the Constitution as construed by the

Court. Id. at 494.

16

In summary, if the Court reaches the substance

of Texas’s “sovereign immunity” defense, it should

make explicit what its precedents have made

implicit—and what the logic of the self-executing “just

compensation” remedy of the Takings Clause

requires: Sovereign immunity does not excuse States

like Texas from having to account for federal takings

without compensation.

II.

Federal Courts Are Just As Equipped As

State Courts To Adjudicate Federal

Takings Claims for Compensation

Texas advocates for a rule that would shut the

lower federal courthouse doors to any takings claim

against a State for just compensation. To justify its

rule, Texas likely will claim that state courts are

better equipped than lower federal courts to

adjudicate such claims, because state law defines

property rights. See, e.g., Devillier, 63 F.4th at 419

(Higginbotham, J., concurring in denial of en banc

rehearing) (arguing for allowing only state courts to

adjudicate such claims because it “brings the wellequipped eyes of those dealing with state property

interests on a daily basis, as they have done all these

many years”); see also Murr v. Wisconsin, 137 S. Ct.

1933, 1950 (2017) (Roberts, C.J. dissenting) (“Our

decisions have, time and again, declared that the

Takings Clause protects private property rights as

state law creates and defines them.”). But there is no

evidence that lower federal courts are somehow less

capable than their state counterparts to handle

federal takings claims. Quite the contrary.

17

The lower federal courts can and do regularly

apply state law in adjudicating federal claims—

including when a federal district court has diversity

jurisdiction and must decide state-law questions.5

Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d

242, 250 (5th Cir. 2011) (“When the district court has

original subject matter jurisdiction over state law

claims, the exercise of that jurisdiction is

mandatory.”). The federal district courts are the first

to say so. “[F]ederal courts are frequently called upon

to interpret the laws of the several States.” Sloan v.

GM, LLC, 287 F. Supp. 3d 840, 862 (N.D. Cal. 2018)

(concerning state law on fraud, consumer protection,

and implied warranty). Indeed, “[d]istrict courts

regularly apply the law of states other than the forum

state.” Turrett Steel Corp. v. Manuel Int’l, Inc., 612 F.

Supp. 387, 390 (W.D. Pa. 1985) (emphasis added)

(concerning state contract law).

Further, “[a]s a general matter, it is true that

the property rights protected by the Takings Clause

are creatures of state law.” Cedar Point Nursery v.

Hassid, 141 S. Ct. 2063, 2075-76 (2021).6 But claims

for just compensation almost always turn, not on

whether the object of the alleged taking is “property,”

but on whether a taking of such property has occurred,

5 In a diversity case, the federal court will apply the same

substantive standards that state courts would apply; it will,

however, apply the Federal Rules to any procedural issues.

Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980) (discussing

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).

6 While state law may define the historic contours of

“property,” state law is not be-all and end-all. “[A] State, by ipse

dixit, may not transform private property into public property

without compensation.” Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U. S. 155 (1980).

18

or whether the taking serves a “public use.” Kelo v.

City of New London, 545 U.S. 469 (2005) (considering

whether a taking was for a “public use”); Pakdel v.

City & Cnty. of San Francisco, 636 F. Supp. 3d 1065

(N.D. Cal. 2022) (evaluating takings claims for

whether a taking occurred under various federal legal

tests); Fazzino v. Roe, 2021 U.S. Dist. LEXIS 258123

(W.D. Tex. Aug. 23, 2021) (same). Those are questions

of federal constitutional law that, of course, the lower

federal courts are fully equipped to answer—and have

answered, including with respect to claims against the

Federal Government. Estate of Hage v. United States,

687 F.3d 1281 (Fed. Cir. 2012) (reversing Court of

Federal Claims’ award of compensation on a takings

claim); Loveladies Harbor v. United States, 28 F.3d

1171, 1883 (Fed Cir. 1994) (affirming trial court’s

determination that Federal Government’s denial of

permit effected a compensable taking); Florida Rock

Indus. v. United States, 18 F.3d 1560, 1562 (Fed. Cir.

1994) (considering whether federal agency’s denial of

permit “effected a regulatory taking, thus requiring

the Government to pay just compensation”—a

question that “depends on the impact the regulatory

imposition had on the economic use, and hence value,

of the property”).

In short, the role of state law in a federal “just

compensation” action against a State is overstated.

And even if its role were significant, federal courts

have no trouble deciding them—and routinely do.

Certainly, any advantage the state courts may have

over federal courts would be woefully insufficient to

justify closing the lower-federal courthouse doors to

property owners when the State takes their property

without compensation.

19

CONCLUSION

For the reasons stated in the petition and in

this brief, the Court should reverse the Fifth Circuit’s

decision and hold that petitioner’s takings claims are

justiciable.

Dated: Nov. 17, 2023

Respectfully submitted,

PAUL BEARD II

*Counsel of Record

FisherBroyles LLP

453 S. Spring St., # 400-1458

Los Angeles, CA 90013

(818) 216-3988

paul.beard@fisherbroyles.com

SUSAN V. WARNER

*Admission Pending

FisherBroyles LLP

1221 Brickell Ave., Ste. 900

Miami, FL 33131

Counsel for Amicus Curiae