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.

TEXAS,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF OF ATLANTIC LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

Lawrence S. Ebner

Nancie G. Marzulla

Counsel of Record

Marzulla Law, LLC

1150 Connecticut Avenue, NW Atlantic Legal Foundation

1701 Pennsylvania Avenue, NW

Washington, DC 20036

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

Counsel for Amicus Curiae

325008

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ii

INTEREST OF THE AMICUS CURIAE ................... 1

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 7

A. Takings claims against the United States arise

directly from the Fifth Amendment, not a

federal statute ...................................................... 10

B. A Fifth Amendment taking claim against a

State also arises directly from the

Constitution .......................................................... 13

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

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999). ......................................... 14, 16

Armstrong v. United States,

364 U.S. 40 (1960). ................................................. 10

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

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

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

of Forestry,

991 P.2d 563 (Or. Ct. App. 1999). .......................... 17

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

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

Colman v. Utah State Land Bd.,

795 P.2d 622 (Utah 1990) ...................................... 17

Devillier v. Texas,

63 F.4th 416 (5th Cir. 2023)..................................... 4

First Eng. Evangelical Lutheran Church of Glendale

v. Los Angeles Cnty., Cal.,

482 U.S. 304 (1987). ............... 5, 6, 7, 8, 9, 13, 14, 16

Fisher v. United States,

402 F.3d 1167 (Fed. Cir. 2005) .............................. 12

iii

Greenway Dev. Co. v. Borough of Paramus,

750 A.2d 764 (N.J. 2000) ........................................ 17

Henderson v. City of Columbus,

827 N.W.2d 486 (Neb. 2013). ................................. 16

Hernandez v. Mesa,

140 S. Ct. 735 (2020). ........................................... 3, 4

In re Fin. Oversight & Mgmt. Bd.,

41 F.4th 29 (1st Cir. 2022) ..................................... 14

Jacobs v. United States,

290 U.S. 13 (1933). ............................................... 6, 9

Jan’s Helicopter Serv., Inc. v. FAA,

525 F.3d 1299 (Fed. Cir. 2008) .............................. 12

Kincaid v. City of Seattle,

134 P. 504 (Wash. 1913)........................................ 17

Kitchen v. City of Newport News,

657 S.E.2d 132 (Va. 2008). ..................................... 16

Knick v. Twp. of Scott, Pa.,

139 S. Ct. 2162 (2019). ....................... 7, 8, 10, 11, 12

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

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

iv

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ................................................ 5

Manning v. Mining & Minerals Div. of Energy,

Minerals & Nat. Res. Dep’t,

144 P.3d 87 (N.M. 2006)..................................... 5, 15

McKesson Corp. v. Islamic Rep. of Iran,

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

Moden v. United States,

404 F.3d 1335 (Fed. Cir. 2005). ............................. 12

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) .................................................. 5

People ex rel. Decatur & S.L Ry. Co. v. McRoberts,

62 Ill. 38 (1871)....................................................... 17

Roth v. United States,

378 F.3d 1371 (Fed. Cir. 2004) .............................. 12

San Remo Hotel, L.P. v. City & Cnty. of San

Francisco, Cal.,

545 U.S. 323 (2005). ............................................... 10

SDDS, Inc. v. State,

650 N.W.2d 1 (S.D. 2002). ...................................... 16

v

State Hwy. Comm’n v. Peters,

416 P.2d 390 (Wyo. 1966) ....................................... 17

Swift & Co. v. City of Newport News,

52 S.E. 821 (Va. 1906). ........................................... 16

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

Agency,

535 U.S. 302 (2002) .................................................. 5

United States v. Causby,

328 U.S. 256 (1946) .................................. 7, 8, 12, 14

United States v. Clarke,

445 U.S. 253 (1980) ............................................. 8, 9

United States v. Dickinson,

331 U.S. 745 (1947). ........................................... 6, 13

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) .................................................... 8

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton

Bank of Johnson City,

473 U.S. 172 (1985). ............................................... 10

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

95 F.3d 1359 (7th Cir. 1996) .................................. 14

vi

Statutes

28 U.S.C. § 1491(a)(1) ............................................ 7, 12

42 U.S.C. § 1983. ......................................................... 8

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal Foundation

(ALF) is a national, nonprofit, nonpartisan, public

interest law firm. Its mission is to advance the rule of

law and civil justice by advocating for individual

liberty, free enterprise, property rights, limited and

responsible government, sound science in judicial and

regulatory proceedings, and effective education,

including parental rights and school choice. With the

benefit of guidance from distinguished legal scholars,

corporate legal officers, private practitioners, business

executives, and prominent scientists who serve on its

Board of Directors and Advisory Council, ALF pursues

its mission by participating as amicus curiae in

carefully selected appeals before the Supreme Court,

federal courts of appeals, and state supreme courts.

See atlanticlegal.org.

The Fifth Amendment’s Just Compensation Clause

(also known as the Takings Clause), applicable to each

State and its political subdivisions through the

Fourteenth Amendment, recognizes that private

property ownership secures our economic liberty and

is intrinsic to our heritage of freedom and individual

liberty. ALF’s mission includes the vigorous protection

of private property rights considered essential by the

framers of the Constitution and is woven into our

nation’s social fabric. ALF has participated as amicus

1 No counsel for a party authored this brief in whole or part, and

no party or counsel other than the amicus curiae and its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

curiae in many cases where, as here, overly aggressive

and confiscatory governmental actions raise serious

taking concerns.2

The physical taking at issue here results from

actions taken by the State of Texas, resulting in the

flooding of privately owned land. The question

presented here—may a person whose property is

taken without just compensation seek redress under

the self-executing Just Compensation Clause even if

the state legislature has not affirmatively provided

them with a cause of action—falls squarely within

ALF’s mission of vigorously protecting private

property rights from unjust and uncompensated

governmental takings.

INTRODUCTION

This case presents a classic Catch-22, as U.S.

Magistrate Judge Andrew Edison put it, because,

according to the Fifth Circuit, takings claims against

the State of Texas must be brought under 42 U.S.C.

§ 1983 (civil action for deprivation of rights), and

because

States

cannot

be

sued

under

§ 1983, those takings claims are “dead on arrival.”3

This nifty procedural trick was employed by the

State of Texas to defeat Petitioners’ taking claims.

After being sued in state court for a physical taking of

private property resulting from actions that flooded

2 See, e.g., Br. of Atl. Legal Found. as Amicus Curiae in Support

of Petitioner, Tyler v. Hennepin County, Minnesota, No. 22-166

(U.S. filed Mar. 3, 2023).

3 App. 13a.

3

Petitioners’ private property, the State of Texas

removed the case to federal court. Once there, the

State moved to dismiss the case because § 1983 does

not apply to States.

The State encountered one hiccup when the district

court denied the motion to dismiss, but its plan was

rescued on appeal by the Fifth Circuit, which vacated

the decision denying the dismissal and remanded it

back to the district court.

In a remarkably succinct decision, the three-judge

Fifth Circuit panel explained that because (1) § 1983

does not provide a cause of action against a State and

(2) the Fifth Amendment does not provide a direct

right of action against a State,4 Petitioners’ takings

claims could not proceed in federal court.5

The Fifth Circuit’s decision provides States with a

blueprint for avoiding Fifth Amendment takings

liability: Simply remove a Fifth Amendment taking

claim filed in state court under § 1983 to federal court,

and once there, move for dismissal, leaving the taking

plaintiff with no remedy for the taking of private

property.

SUMMARY OF ARGUMENT

Rarely do cases present such a palpable

constitutional wrong requiring reversal as this case

does. As the Magistrate Judge concluded, the State’s

argument, approved by the Fifth Circuit, “eviscerates”

4 See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020).

5 Because the State had removed the case to federal court, the

district court found that the Eleventh Amendment did not bar

the State from being sued in federal court. See App. 4a–32a.

4

hundreds of years of constitutional law in “one fell

swoop.”6

As five Fifth Circuit judges stated in their dissent

from the denial of rehearing en banc, the panel

decision is an “insuperable obstacle”7 to any plaintiff

asserting any federal takings claim against any State

in federal or state court. “If this case is not [en banc

worthy], then it’s unclear how any case ever will be.”8

Describing the panel decision as a “one-paragraph

decision with one sentence of analysis,”9 the

dissenting circuit judges noted that the panel decision

relied on two sources for its “remarkable holding[,] [a]

Bivens case and a 1992 Ninth Circuit decision.”10

Neither case supports a holding that there is no

direct cause of action under the Fifth Amendment.

The Bivens case, Hernandez v. Mesa,11 did not involve

a Fifth Amendment taking claim and says nothing

about whether there can be direct causes of action

under the Fifth Amendment. Instead, the case

involved a fatal shooting, a U.S. Border Patrol agent,

and the Court’s reluctance to extend Bivens’ actions.

6 App. 15a.

7 Devillier v. Texas, 63 F.4th 416, 426 (5th Cir. 2023) (Oldham, J.,

dissenting).

8 Id.

9 Id.

10 Id.

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

5

The Ninth Circuit case, Azul-Pacifico, Inc. v. City

of Los Angeles,12 is also not instructive here. That case

involved a taking claim challenging a mobile home

rent control ordinance’s vacancy control provision.

Although the Ninth Circuit ostensibly held that the

taking claim must be brought under § 1983, the court

did not decide whether the taking claim could have

been brought directly under the Fifth Amendment

because that claim was time-barred. And Ninth

Circuit Judge Kozinski disagreed in his separate

opinion that the taking claim under the Fifth

Amendment claim was actually time-barred.13

More to the point, however, this Court has flatly

rejected the argument, made here by the State of

Texas and adopted by the Fifth Circuit, that the Fifth

Amendment does not provide a direct cause of action

against the state government for unconstitutional

takings of private property.14

Noting that taking claims may arise in various

factual and jurisdictional settings, the First English

court15 stated that “it is the Constitution that dictates

12 Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir.

1992).

13 Id. at 705 (Kozinski, J., concurring and dissenting).

14 App. 15a (citing Manning v. Mining & Minerals Div. of Energy,

Minerals & Nat. Res. Dep’t, 144 P.3d 87, 90 (N.M. 2006); TahoeSierra 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. S.C. Coastal Council, 505 U.S. 1003, 1027–30

(1992)).

First Eng. Evangelical Lutheran Church of Glendale v. Los

Angeles Cnty., Cal., 482 U.S. 304 (1987).

15

6

the remedy for interference with property rights

amounting to a taking.”16

The Constitution entitles a property owner to bring

a taking claim “as a result of the self-executing

character of the constitutional provision with respect

to compensation.”17 “The claim traces back to the

prohibition of the Fifth Amendment. . . .”18 As the

Supreme Court has explained, suits for just

compensation arise from the Constitution:

[T]hat 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. The form of

the remedy did not qualify the right. It

rested upon the Fifth Amendment.

Statutory recognition was not necessary. A

promise to pay was not necessary. Such a

promise was implied because of the duty to

pay imposed by the amendment. The suits

were thus founded upon the Constitution of

the United States.19

As the Magistrate Judge also stated, because the

Fifth Amendment is self-executing, the substantive

16 Id. at 316 n.9 (emphasis added).

17 Id. at 315 (internal citations and quotations omitted).

18 United States v. Dickinson, 331 U.S. 745, 748 (1947).

19 Jacobs v. United States, 290 U.S. 13, 16 (1933).

7

right to just compensation “springs to life when the

[federal] government takes private property.”20

Further contrary to the Fifth Circuit’s holding,

taking claims against the United States are brought

under the Tucker Act21 in the U.S. Court of Federal

Claims directly under the Fifth Amendment.

As the Knick22 court stated,

the Tucker Act, which provides the

standard procedure for bringing such

claims, gives the Court of Federal Claims

jurisdiction to “render judgment upon any

claim against the United States founded

either upon the Constitution” or any

federal law or contract for damages “in

cases not sounding in tort.” 28 U.S.C.

§ 1491(a)(1). We have held that “[i]f there is

a taking, the claim is ‘founded upon the

Constitution’ and within the jurisdiction of

the Court of Claims to hear and

determine.”23

ARGUMENT

This Court has flatly rejected the Fifth Circuit’s

holding that the “Constitution does not, of its own

App. 15a (citing First English, 482 U.S. at 315) (emphasis

added).

20

21 28 U.S.C. § 1491(a)(1).

22 Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162 (2019).

23 Id. at 2170 (quoting 28 U.S.C. § 1491(a)(1); United States v.

Causby, 328 U.S. 256, 267 (1946)).

8

force, furnish a basis for a court to award money

damages against the government.”24

Although the federal Civil Rights Act25 creates a

federal cause of action for the denial of constitutional

rights (including Fifth Amendment takings), the Act

is limited to claims against local governments and

their officials, not States.26 No comparable statute

authorizes just compensation claims against the

federal government.

This Court has held that the Fifth Amendment

itself creates the cause of action: “‘If there is a taking,

the claim is founded upon the Constitution.’”27 Because

the Fifth Amendment applies to the States through

the Fourteenth Amendment,28 the Constitution itself

creates a just compensation claim against the States,

just as it does against the federal government, without

the necessity of any other statutory authorization.29

24 First English, 482 U.S. at 316 n.9.

25 42 U.S.C. § 1983.

26 Id.; see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989) (“We hold that neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.”).

27 Knick, 139 S. Ct. at 2170 (quoting Causby, 328 U.S. at 267)

(emphasis added).

28 Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 243

(1897).

29 United States v. Clarke, 445 U.S. 253, 257 (1980) (“A landowner

is entitled to bring [an inverse condemnation] action as a result

of ‘the self-executing character of the constitutional provision

with respect to compensation . . . .’”).

9

Here, as in Jacobs v. United States,30 the property

owner’s just compensation claim was not based on any

statute but on the money-mandating, self-executing

Fifth Amendment of the Constitution. These claims

rested upon the Fifth Amendment, and statutory

recognition was unnecessary. “The suits were thus

founded upon the Constitution of the United States.”31

And in First English, the Court noted that “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.32

In United States v. Clarke,33 the Court stated that

“[t]o accomplish a taking by seizure, on the other

hand, a condemning authority need only occupy the

land in question. Such a taking thus shifts to the

landowner the burden to discover the encroachment

and to take affirmative action to recover just

compensation.”34

If a statute were necessary to provide just

compensation claims against the United States (or the

individual States, as the Fifth Circuit held), there

would be no taking claims against the federal

government because Congress has never enacted a

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

31 Id. at 16.

32 First English, 482 U.S. at

33 Clarke, 445 U.S. 253.

34 Id. at 257.

316.

10

statute authorizing taking claims. Likewise, a State

could defeat a property owner’s constitutional right to

just compensation by simply failing to authorize the

claim. State and federal governments would then be

free to appropriate private property for public use

whenever they wished, yet pay for the property only

when a statute required payment—rendering the Just

Compensation Clause a dead letter.

A. Takings claims against the United States

arise directly from the Fifth Amendment,

not a federal statute

The Fifth Amendment is designed to require

compensation if the Government takes private

property for public use. Government action that works

a taking of property rights for confiscatory actions

triggers the “constitutional obligation to pay just

compensation.”35

In Knick,36 this Court recently overruled its prior

Williamson County37 decision that had effectively

barred property owners from bringing any just

compensation claim in federal court38 because a taking

without compensation “violates the self-executing

Fifth Amendment.”39 Rejecting the Third Circuit’s

35 Armstrong v. United States, 364 U.S. 40, 49 (1960).

36 Knick, 139 S. Ct. 2162.

Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985).

37

See, e.g., San Remo Hotel, L. P. v. City & County of San

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

38

39 Knick, 139 S. Ct. at 2172.

11

holding that a taking claimant must first exhaust his

or her compensation remedies in state court, the Court

held that the claim arises under the Fifth

Amendment, and the property owner may sue in

federal court as soon as they are denied just

compensation:

[A] property owner has a claim for a

violation of the Takings Clause as soon as

a government takes his property for public

use without paying for it. The Clause

provides: “[N]or shall private property be

taken for public use, without just

compensation.” It does not say: “Nor shall

private property be taken for public use,

without an available procedure that will

result in compensation.”40

Similarly, as the Court explained in Knick, if a

local government takes private property without

paying for it, that government has violated the Fifth

Amendment “without regard to subsequent state

court proceedings.”41 The Knick Court analyzed

taking claims against the federal government, noting

that the Tucker Act

gives the Court of Federal Claims

jurisdiction to “render judgment upon any

claim against the United States founded []

upon the Constitution” . . . “in cases not

sounding in tort.” 28 U.S.C. § 1491(a)(1).

40 Id. at 2170 (internal citations omitted).

41 Id.

12

We have held that “[i]f there is a taking, the

claim is ‘founded upon the Constitution’

and within the jurisdiction of the Court of

Claims to hear and determine.”42

The Tucker Act, which provides the United States

Court of Federal Claims jurisdiction over “actions

brought pursuant to money-mandating . . .

constitutional provisions,”43 is jurisdictional only; the

Act “does not create a substantive cause of action.”44

There is no money-mandating statute creating a

just compensation cause of action for federal takings.

The money-mandating provision is the Just

Compensation provision of the Fifth Amendment,45

requiring the Court of Federal Claims to determine

whether the acts constituted an unconstitutional

taking.

Numerous decisions have reflected the selfexecuting nature of a taking claim under the Tucker

Act. “A landowner is entitled to bring such an [inverse

condemnation] action as a result of the self-executing

character of the constitutional provision with respect

42 Id. (quoting Causby, 328 U.S. at 267).

43 Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004)

(citing 28 U.S.C. § 1491(a)(1)).

44 Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)

(en banc).

45 Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299 (Fed. Cir.

2008); Moden v. United States, 404 F.3d 1335 (Fed. Cir. 2005).

13

to compensation.”46 “The claim traces back to the

prohibition of the Fifth Amendment. . . .”47

In Dickinson,48 this Court provided some context

for these holdings:

The Constitution is “intended to preserve

practical and substantial rights, not to

maintain theories.” Davis v. Mills, 194

U.S. 451, 457 [1904]. One of the most

theory-ridden of legal concepts is a “cause

of action.” . . . The Fifth Amendment

expresses a principle of fairness and not a

technical rule of procedure enshrining old

or new niceties regarding “causes of

action[.]”49

B. A Fifth Amendment taking claim against a

State also arises directly from the

Constitution

Similar to federal taking claims brought against

the United States, a statutory right is not needed to

sue a State for a taking because a self-executing cause

of action exists in the Constitution—the Fifth

Amendment. In finding the opposite, the Fifth Circuit

nullified the constitutionally created right to seek just

compensation when the government—either state,

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

quotations omitted).

46

47 United States v. Dickinson, 331 U.S. 745, 748 (1947).

48 Dickinson, 331 U.S. 745.

49 Id. at 748.

14

local, or federal—takes private property. This Court

has held that takings claims are “founded upon the

Constitution”50 and that the Constitution “dictates the

remedy for interference with property rights

amounting to a taking.”51

This Court has often recognized that the

Constitution applies to States: “The constitutional

privilege of a State to assert its sovereign immunity in

its own courts does not confer upon the State a

concomitant right to disregard the Constitution or

valid federal law. The States and their officers are

bound by obligations imposed by the Constitution.”52

Four federal circuit courts—the First, Fourth,

Seventh, and D.C. Circuit—have also recognized that

the Just Compensation Clause of the Fifth

Amendment is self-executing.53 In addition to federal

50 United States v. Causby, 328 U.S. 256, 256, 267 (1946).

51 First English, 482 U.S. at 316 n.9.

52 Alden v. Maine, 527 U.S. 706, 754–755 (1999).

53 See, e.g., In re Fin. Oversight & Mgmt. Bd., 41 F.4th 29, 46 (1st

Cir. 2022) (“[A] claim under the Takings Clause is different in

kind from actions under [] section 1983. . . .”); McKesson Corp. v.

Islamic Rep. of Iran, 539 F.3d 485, 490 (D.C. Cir. 2008); Lawyer

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

2000); Wis. Cent. Ltd. v. Pub. Serv. Comm’n of Wis., 95 F.3d 1359,

1368 (7th Cir. 1996) (“When the state effects a taking of private

property for public use, the Takings Clause requires that the

person deprived of that property be paid just compensation. The

just compensation requirement of the Takings Clause places

takings in a class by themselves because, unlike other

constitutional deprivations, the Takings Clause provides both the

cause of action and the remedy.”).

15

courts, several state courts and federal courts

applying state law have held that the Fifth

Amendment is self-executing and that no statutory

right is necessary for a plaintiff to bring a taking claim

against the State:

• In Manning v. New Mexico Energy, Minerals

and Natural Resources Department,54 the Supreme

Court of New Mexico held that a statute cannot

insulate the state from providing just compensation:

“[L]egislation cannot insulate the state from providing

just compensation. . . . Holding otherwise would

expose more citizens to takings without adequate

compensation, contrary to the protections our

Constitution provides. When a taking occurs, just

compensation is required by the Constitution,

regardless of state statute.”55 Further, the Supreme

Court of New Mexico rejected the State’s argument

that the Fifth Amendment was not self-executing: “In

our view, the Fifth Amendment is self-executing.

Requiring further governmental action when the

Government has effected the taking is contrary to the

very reason for the Fifth Amendment: a check against

abusive governmental power.”56

• Nebraska’s highest court has also ruled that

“[a] landowner is entitled to bring an action in inverse

condemnation as a result of the self-executing

54 Manning, 144 P.3d 87 (N.M. 2006).

55 Id. at 91–92.

56 Id. at 97.

16

character of the takings clauses of the U.S. and

Nebraska Constitutions.”57

• The Supreme Court of South Dakota has

recognized that the Just Compensation Clause is selfexecuting.58

• Virginia’s Supreme Court has also held that

Virginia’s version of the Fifth Amendment, which

“provides that private property shall not be taken or

damaged for public use without just compensation,”59

is “self-executing and permits a property owner to

enforce his constitutional right to just compensation

in a common law action.”60

• The Court of Appeals of Oregon, adopting First

Lutheran61 and Alden,62 held that “because of the selfexecuting nature of the Fifth Amendment, as applied

to the states through the Fourteenth Amendment, a

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

493 (Neb.

2013).

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

Kitchen v. City of Newport News, 657 S.E.2d 132, 140 (Va.

2008).

59

60 Id.; see also Swift & Co. v. City of Newport News, 52 S.E. 821,

824 (Va. 1906).

61 First English, 482 U.S. 304.

62 Alden v. Maine, 527 U.S. 706 (1999).

17

state may be sued in state court for takings in

violation of the federal constitution.”63

• The Supreme Courts of Illinois,64 New Jersey,65

Utah,66 Wyoming,67 and Washington68 consider the

Just Compensation Clause self-executing.

CONCLUSION

The State of Texas thought it had found a loophole

to immunize itself from Fifth Amendment takings

liability: remove the taking claim filed in state court

under § 1983 to federal court and then move for

dismissal. The Fifth Circuit endorsed the tactic,

leaving Petitioners with no constitutional remedy.

63 Boise Cascade Corp v. State ex rel. Oregon State Bd. of Forestry,

991 P.2d 563, 569 (Or. Ct. App. 1999).

64 People ex rel. Decatur & S.L Ry. Co. v. McRoberts, 62 Ill. 38, 41

(1871) (“It would be the merest delusion to declare a subsisting

right as essential to the acquisition and protection of property

and make its enjoyment dependent upon legislative will or

judicial interpretation.”).

65 Greenway Dev. Co. v. Borough of Paramus, 750 A.2d 764, 770

(N.J. 2000) (“That constitutional prohibition

unconstitutional takings is self-executing. . . .”).

against

66 Colman v. Utah State Land Bd., 795 P.2d 622, 630 (Utah 1990)

(“We now reaffirm that article I, section 22 is self-executing.”).

67 State Hwy. Comm’n v. Peters, 416 P.2d 390, 395 (Wyo. 1966)

(“However, the legislature cannot infringe upon or take from

property owners the right to be compensated.”).

68 Kincaid v. City of Seattle, 134 P. 504, 506 (Wash. 1913) (“The

city is bound to make compensation . . . it cannot defeat this

constitutional right by a charter provision or an ordinance.”).

18

This Court should close this unconstitutional

loophole, thereby reaffirming that the Fifth

Amendment is explicit and self-executing, and reverse

the Fifth Circuit’s erroneous decision.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

NANCIE G. MARZULLA

MARZULLA LAW, LLC

1150 Connecticut Ave., NW

Washington, DC 20036

November 20, 2023