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 OF PROFESSOR ERNEST A. YOUNG

AS AMICUS CURIAE SUPPORTING PETITIONERS

Gregg J. Costa

Joshua R. Zuckerman

Counsel of Record

Hayley N. Lawrence

GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue N.W. 811 Main Street

Suite 3000

Washington, D.C. 20036

Houston, TX 77002-6117

346.718.6600

Arjun P. Ogale

GIBSON, DUNN & CRUTCHER LLP GCosta@gibsondunn.com

2001 Ross Avenue, Suite 2000

Dallas, TX 75201

(214) 698-31000

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 2

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

I.

II.

TAKINGS PLAINTIFFS REQUIRE NEITHER

A STATUTORY NOR AN IMPLIED RIGHT OF

ACTION TO SEEK JUST COMPENSATION

FROM A STATE GOVERNMENT ........................... 3

A.

The Takings Clause’s Text Has

Long Been Understood To

Compel A Remedy ................................. 4

B.

Treating This Case As Involving

An Implied Right Of Action Is

Mistaken................................................ 5

C.

State Inverse Condemnation

Claims Provide An Alternative

Mechanism For Enforcing The

Federal Right To Just

Compensation ..................................... 12

STATE COURT IS NOT THE PREFERRED

FORUM FOR FEDERAL TAKINGS CLAIMS .......... 18

A.

Fourteenth Amendment Claims

Are Not Committed To The State

Courts .................................................. 19

B.

The Fifth Circuit’s Decision

Undermines Knick’s Robust

Protection Of Property Rights ............ 22

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) .............................................. 11

American Well Works Co. v. Layne &

Bowler Co., 241 U.S. 257 (1916) .......................... 14

Armstrong v. Exceptional Child Center,

Inc., 575 U.S. 320 (2015) ...................................... 10

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023) .............................................. 10

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) .............................................. 10

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

166 U.S. 226 (1897) ........................................ 19, 22

Devillier v. State,

63 F.4th 416 (5th Cir. 2023) ...................... 5, 13, 19

First English Evangelical Lutheran

Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987) .................. 3, 4, 12, 13

Grable & Sons Metal Products, Inc. v.

Darue Engineering &

Manufacturing, 545 U.S. 308 (2005) ....... 15, 16, 18

Gunn v. Minton,

568 U.S. 251 (2013) .............................................. 16

Home Telephone & Telegraph Co. v. City

of Los Angeles, 227 U.S. 278 (1913) ..................... 21

iii

Jacobs v. United States,

290 U.S. 13 (1933) ........................................ 3, 5, 13

Knick v. Township of Scott,

139 S. Ct. 2162 (2019)

............................................ 2, 4, 7, 8, 12, 16, 23, 24

Maine Community Health Options v.

United States, 140 S. Ct. 1308 (2020) ........... 11, 12

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 5

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 20

McNeese v. Board of Education for

Community Unit School District 187,

373 U.S. 668 (1963) .............................................. 21

Monell v. Department of Social Services,

436 U.S. 658 (1978) ........................................ 17, 22

Montgomery v. Louisiana,

577 U.S. 190 (2016) .............................................. 18

New York State Rifle & Pistol

Association v. Bruen,

142 S. Ct. 2111 (2022) .......................................... 20

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .......................................... 20

Raymond v. Chicago Union Traction

Co., 207 U.S. 20 (1907)......................................... 22

Seaboard Air Line Railway Co. v.

United States, 261 U.S. 299 (1923) ....................... 5

Smith v. Kansas City Title & Trust Co.,

255 U.S. 180 (1921) ........................................ 15, 16

iv

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................................................ 9

Steffel v. Thompson,

415 U.S. 452 (1974) .............................................. 20

T.B. Harms Co. v. Eliscu,

339 F.2d 823 (2d Cir. 1964) ................................. 15

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................................ 20

United States v. Navajo Nation,

556 U.S. 287 (2009) ........................................ 11, 12

Village of Norwood v. Baker,

172 U.S. 269 (1898) .............................................. 22

Will v. Michigan Department of State

Police, 491 U.S. 58 (1989) .................................... 22

Ex parte Young,

209 U.S. 123 (1908) .............................................. 10

Constitutional Provisions

U.S. Const. amend. V .................................................. 2

Vt. Const. of 1777, ch. 1, cl. II ..................................... 4

Statutes

42 U.S.C. §§ 2000e–2000e17 ....................................... 8

Act of May 8, 1792, ch. 36, § 2,

1 Stat. 275, 276 (repealed 1872) ............................ 7

Act of Sept. 29, 1789, ch. 21, § 2,

1 Stat. 93 (repealed 1792) ...................................... 7

v

Other Authorities

Ann Woolhandler & Julia D. Mahoney,

Federal Courts and Takings

Litigation, 97 Notre Dame L. Rev.

679 (2022) ............................................. 9, 15, 17, 22

Anthony J. Bellia Jr. & Bradford R.

Clark, The Original Source of the

Cause of Action in Federal Courts:

The Example of the Alien Tort

Statute, 101 Va. L. Rev. 609 (2015)

............................................................ 6, 7, 8, 13, 14

Anthony J. Bellia, Jr., Article III and

the Cause of Action, 89 Iowa L. Rev.

777 (2004) ............................................................... 6

Anya Bernstein, Congressional Will and

the Role of the Executive in Bivens

Actions: What Is Special About

Special Factors?, 45 Ind. L. Rev. 719

(2012) ...................................................................... 7

Douglas W. Kmiec, The Original

Understanding of the Taking Clause

Is Neither Weak Nor Obtuse, 88

Colum. L. Rev. 1630 (1988).................................... 4

Ernest A. Young, Federal Suits and

General Laws: A Comment on Judge

Fletcher's Reading of Sosa v.

Alvarez-Machain, 93 Va. L. Rev. In

Brief 33 (2007) ...................................................... 13

Felix Frankfurter & James Landis, The

Business of the Supreme Court

(1928) .................................................................... 20

vi

James Madison, Property, National

Gazette (Mar. 27, 1792), reprinted in

14 The Papers of James Madison 266

(Robert A. Rutland & Thomas A.

Mason eds., 1983),

https://founders.archives.gov/docume

nts/Madison/01-14-02-0238 ................................... 4

Jerry L. Mashaw, Recovering American

Administrative Law: Federalist

Foundations, 1787-1801, 115 Yale

L.J. 1256 (2006) ...................................................... 7

Justin Crowe, Building the Judiciary: Law,

Courts, and the Politics of Institutional

Development (2012) ............................................. 20

Richard H. Fallon, Jr., John F. Manning,

Daniel J. Meltzer, & David L. Shapiro,

Hart & Wechsler’s The Federal Courts and

the Federal System (7th ed. 2015) ................ 15, 19

Nestor M. Davidson & Timothy M. Mulvaney,

Takings Localism, 121 Colum. L. Rev. 215

(2021) .................................................................... 17

INTEREST OF AMICUS CURIAE1

Amicus Curiae Ernest A. Young is the Alston &

Bird Distinguished Professor of Law at Duke Law

School.

He has taught Federal Courts and

Constitutional Law for 25 years at Duke, the

University of Texas School of Law, the University of

Chicago Law School, Harvard Law School, and

Villanova University School of Law.

Professor

Young’s scholarship focuses on federalism, federal

jurisdiction, and constitutional history. His most

relevant work to this appeal includes State Sovereign

Immunity After the Revolution, 102 Tex. L. Rev.

(forthcoming

June

2024)

(available

at

https://ssrn.com/abstract=4350164)

(discussing

takings claims against state governments), Standing,

Equity, and Injury in Fact, 97 Notre Dame L. Rev.

1885–1910 (2022), Unpacking Third-Party Standing,

131 Yale L.J. 1 (2021) (with Curtis A. Bradley) (both

discussing the role of the cause of action in federal

jurisdiction), and Federal Suits and General Laws: A

Comment on Judge Fletcher’s Reading of Sosa v.

Alvarez-Machain, 93 Va. L. Rev. In Brief 33 (2007)

(discussing the need to translate between modern and

Founding-era conceptions of rights to sue). He has

filed numerous amicus briefs before this Court,

including in Allen v. Cooper 140 S. Ct. 994 (2020);

Bank Markazi v. Peterson, 578 U.S. 212 (2016); United

States v. Windsor 570 U.S. 744, 773 (2013) (citing

Brief of Federalism Scholars); Medellin v. Texas, 552

1 No counsel for any party authored this amicus brief in whole

or in part, and no person or entity, other than amicus or his

counsel, made any monetary contribution to the preparation or

submission of this brief.

2

U.S. 491 (2008); and Gonzales v. Raich, 545 U.S. 1

(2005).

Professor Young files this brief because the

question presented falls within his area of teaching

and research interest, and because he believes that

legal scholarship should be concerned with and made

useful to the decision of issues presently before the

courts.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court recently reaffirmed that the Takings

Clause is “self-executing.” Knick v. Township of Scott,

139 S. Ct. 2162, 2172 (2019). Texas now argues that

this self-executing remedy is unenforceable because

there is no separate federal right of action for a

takings claim against the state. Text and history say

otherwise. Both recognize a vital role for federal

courts in ensuring that no “private property be taken

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

Const. amend. V.

The Fifth Circuit erred in viewing this case

through an ahistoric lens that searched for either an

express statutory grant or an “implied” right of action

to support a takings claim. That framing is improper.

First, the text of the Takings Clause compels a

remedy. And second, as early takings jurisprudence

shows, the Framers had a different conception of

rights to sue that allowed enforcement in federal court

without a separate enabling statute.

It is

anachronistic to superimpose modern expectations

about federal rights of action upon a constitutional

provision ratified in the days of the common law forms

of action.

3

Nor should a federal right to enforce the federal

Takings Clause in federal court be denied in favor of

a “pathway” relying on state courts. The Fourteenth

Amendment and the 1875 statute providing for

general federal question jurisdiction were meant to

ensure that basic federal rights could be enforced in a

federal forum if the rightholder so chose. The Fifth

Circuit’s action here would allow states to circumvent

the Takings Clause altogether by removing to federal

court and then moving to dismiss.

The more

fundamental problem, however, is that the denial of a

federal right to sue would arbitrarily exclude takings

claims from the ordinary process of federal rights

enforcement.

This Court should reverse the Fifth Circuit and

hold that the Takings Clause provides a self-executing

remedy that is enforceable against the states and

justiciable in federal court.

ARGUMENT

I.

TAKINGS PLAINTIFFS REQUIRE NEITHER A

STATUTORY NOR AN IMPLIED RIGHT OF

ACTION TO SEEK JUST COMPENSATION FROM A

STATE GOVERNMENT

Suits to enforce the Takings Clause require

neither an express statutory grant nor an implied

“cause of action.”

Unlike most constitutional

provisions, the Takings Clause prescribes a remedy—

just compensation—and in so doing, makes clear that

the remedy should be enforced in federal courts. As

federal courts have long recognized, “claims for just

compensation are grounded in the Constitution itself.”

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, 482 U.S. 304, 315

4

(1987) (citing Jacobs v. United States, 290 U.S. 13, 16

(1933)). There is no need to shoehorn constitutional

text into modern “cause of action” jurisprudence in

order to recognize that the Fifth Amendment in fact

guarantees “just compensation.”

A. The Takings Clause’s Text Has Long

Been Understood To Compel A Remedy.

The Takings Clause imposes an affirmative

obligation on the government. First English, 482 U.S.

at 314–15. Courts have long understood the Takings

Clause to require monetary compensation. Knick, 139

S. Ct. at 2175–76. James Madison modeled the

Takings Clause after contemporaneous state

constitutions that “provided for an affirmative right to

compensation once property was taken.” Douglas W.

Kmiec, The Original Understanding of the Taking

Clause Is Neither Weak Nor Obtuse, 88 Colum. L. Rev.

1630, 1661 n.161 (1988). Vermont’s constitution, for

example, provided that “whenever any particular

man’s property is taken for the use of the public, the

owner ought to receive an equivalent in money.” Vt.

Const. of 1777, ch. 1, cl. II (emphasis added).

Madison’s personal writings show that he designed

the Fifth Amendment’s Takings Clause to have the

same purpose and effect.

See James Madison,

Property, National Gazette (Mar. 27, 1792), reprinted

in 14 The Papers of James Madison 266, 266–68

(Robert A. Rutland & Thomas A. Mason eds., 1983),

https://founders.archives.gov/documents/Madison/0114-02-0238 (“If there be a government then which

prides itself in maintaining the inviolability of

property * * * which

indirectly

violates

[its

constituents’] property * * * such a government is not

a pattern for the United States.”).

5

This Court has repeatedly recognized that the

Takings Clause’s remedy is inherent in its text.

Jacobs holds that the just compensation remedy was

“guaranteed

by”

and

“founded

upon”

the

Constitution’s plain text. 290 U.S. at 16. The selfexecuting nature of the Takings Clause’s remedy

discourages legislative interference with private

property rights: indeed, the remedy compelled by the

Fifth Amendment “cannot be taken away by statute.”

Seaboard Air Line Railway Co. v. United States, 261

U.S. 299, 304 (1923). And the express prescription of

a remedy eliminates the need for an express or

implied right of action to vindicate such rights.

B. Treating This Case As Involving An

Implied Right Of Action Is Mistaken.

In the court of appeals, Judge Higginson saw this

case through the lens of this Court’s jurisprudence

concerning implied rights of action under statutes and

constitutional provisions. Devillier v. State, 63 F.4th

416, 420 (5th Cir. 2023) (Higginson, J., concurring in

denial of rehearing en banc).

The analogy is

misplaced for several reasons. First, the Takings

Clause mandates a compensatory remedy in its text.

This Court held as much in First English.

To be sure, the Fifth Amendment does not set out

the metes and bounds of a cause of action in the same

detail as many modern statutes creating federal

rights to sue. But this Court has never expected the

Constitution to include the same level of detail as

statutes. See, e.g., McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 407 (1819) (“[W]e must never forget that

it is a constitution we are expounding.”). Nor would

the Founding generation have thought of the “cause of

6

action” issue raised by this case in those terms. As

Professor A.J. Bellia has observed, “conceptions of the

cause of action are historically contingent.” Anthony

J. Bellia, Jr., Article III and the Cause of Action, 89

Iowa L. Rev. 777, 780 (2004). “When courts plug

modern conceptions of the cause of action into old

doctrinal formulations, they transform judicial power

from what courts originally conceived it to be into

something altogether different.” Id.

At the Founding, “the question whether a plaintiff

had a cause of action was generally inseparable from

the question whether the forms of proceeding at law

and in equity afforded the plaintiff a remedy for an

asserted grievance.” Id. at 783. Rights to sue

depended not on the particular substantive right at

issue, but rather on the type of harm incurred or

remedy sought. To determine whether a right of

action was available to remedy a certain harm, one

looked to local law for “a form of proceeding”—that is,

whether a writ “capable of redressing the [type of]

harm in question” existed under local law. Anthony

J. Bellia Jr. & Bradford R. Clark, The Original Source

of the Cause of Action in Federal Courts: The Example

of the Alien Tort Statute, 101 Va. L. Rev. 609, 631

(2015). “If a plaintiff could fit his injury into a

particular form of proceeding designated by a writ, the

plaintiff was said to have a ‘cause’ or a ‘cause of

action.’” Id. at 634.

Those writs could be used to assert federal claims

in federal court. The Judiciary Act of 1789 “provided

federal courts with general authority to adjudicate

traditional common law causes of action.” Id. at 641.

Shortly thereafter, Congress passed the Process Acts

of 1789 and 1792, which required that in actions at

7

law, federal courts were to apply state forms of

proceeding, which consisted in turn of writs that the

newly formed states had inherited and adopted from

the English common law.2

The Process Acts illustrate how the Founding

Generation conceived of a right of action: that is, state

forms of proceeding created “causes of action” that

allowed citizens to enforce substantive statutory

rights and associated remedies. See ibid. The writs

operated without regard to the identity of the

defendant; hence, they could provide relief against

government officials for unlawful actions.3

One of the common law writs that could be

brought in federal court under the Process Acts—the

writ of trespass—authorized damages for physical

interference with one’s property. The writ of trespass

is analogous to a modern takings claim. Indeed, the

writ of trespass allowed property owners to pursue

just compensation in the early years of the Republic.

Knick, 139 S. Ct. at 2176 (explaining that starting in

the 1870s “state courts began to recognize implied

2 See Bellia, supra, at 787 n.23 (citing the Act of Sept. 29, 1789,

ch. 21, § 2, 1 Stat. 93 (repealed 1792) and Act of May 8, 1792, ch.

36, § 2, 1 Stat. 275, 276 (repealed 1872)).

3 See Anya Bernstein, Congressional Will and the Role of the

Executive in Bivens Actions: What Is Special About Special

Factors?, 45 Ind. L. Rev. 719, 726 (2012) (“At the time the U.S.

Constitution was written, a common law cause of action was

simply presumed to exist, and for at least a century after the

Constitution was framed, individuals could sue public officials

who had violated their constitutional rights for damages.”); Jerry

L. Mashaw, Recovering American Administrative Law:

Federalist Foundations, 1787-1801, 115 Yale L.J. 1256, 1319–30

(2006) (discussing use of the writs to challenge official action).

8

rights of action under the state equivalents of the

Taking Clause”). As this Court has explained, “the

typical recourse of a property owner who had suffered

an uncompensated taking was to bring a common law

trespass action against the responsible * * *

government official[,]” who would “then raise the

defense that his trespass was lawful because it was

authorized by statute or ordinance.” Ibid. “[T]he

plaintiff would respond that the law was

unconstitutional because it provided for a taking

without just compensation.” Ibid.

Now, of course, the forms of action are abolished,

and the modern conception of a cause of action

incorporates a substantive right, prescribes the

available remedy, and defines the mode and

procedure to enforce that right. See Bellia & Clark,

supra, at 612–13. For instance, think of Title VII of

the Civil Rights Act of 1964, which creates the

substantive right (antidiscrimination), provides the

procedure for bringing suit (requiring administrative

exhaustion for example), and defines the remedy

(damages). See 42 U.S.C. §§ 2000e–2000e17 (as

amended). But one should not look to the Fifth

Amendment—ratified in 1791 in the heyday of the

writ system—to provide a full-service modern cause of

action in this way.

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004),

recognized that Founding-era substantive rights

arose from a source of law separate from the common

law forms enabling suit—and that it would be

anachronistic to expect the Alien Tort Statute, a

statute from that era, to create a “cause of action” to

enforce preexisting principles of the law of nations.

Nonetheless, the Court thought that “the First

9

Congress understood that the district courts would

recognize private causes of action for certain torts in

violation of the law of nations.” Id. at 724. In order

to translate that understanding into modern

jurisprudential categories, Sosa recognized an

implied right of action to enforce certain aspects of the

law of nations under federal common law. Id. at 731.

This is a considerably easier case than Sosa.

Unlike the Alien Tort Statute, the text of the Fifth

Amendment explicitly mandates a remedy of just

compensation. Although the Founders might have

expected that remedy to go through a common law

trespass action, subsequent abolition of the common

law forms simply allows that remedy to proceed more

directly. The important point is that neither the

states that ratified the Fifth Amendment nor the

enactors of the Judiciary Act would have understood

any further legislation to be necessary to vindicate

Takings Clause claims, at least in cases in which a

statute conferred jurisdiction over the dispute.4

Unlike in Sosa, one need not speak of implied rights

here. And the practice of bringing takings claims

against state and local governments under general

jurisdictional statutes, without reference to a specific

statutory cause of action like 42 U.S.C. § 1983, is far

more extensive and longstanding than the history of

Alien Tort litigation at issue in Sosa. See generally

Ann Woolhandler & Julia D. Mahoney, Federal Courts

and Takings Litigation, 97 Notre Dame L. Rev. 679,

4 Because the Fifth Amendment did not apply to the states until

its incorporation into the Fourteenth, it is not surprising that

federal law provided no broad jurisdictional statute covering

takings claims against states.

10

684–86, 691–94 (2022).

Sosa recognizes that Founding-era law must be

translated into modern form to evaluate whether a

plaintiff may sue to enforce a Founding-era right in

federal court today. Such a translation demonstrates

why Petitioners need not identify a statute that either

expressly or impliedly creates a cause of action for a

takings claim against the state. This Court has

recognized as much with respect to claims for

injunctive relief, holding that plaintiffs may seek an

injunction against unconstitutional conduct without

regard to § 1983 or any other statutory cause of

action.5 The question would then be, as Justice

Harlan asked in Bivens, why federal law should

permit injunctive but not damages relief. See Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 400, 404 (1971) (Harlan, J.,

concurring in the judgment). But this is also a much

easier case than Bivens because the text of the

Constitution

explicitly

mandates

monetary

compensation.

Finally, this Court’s cases construing statutory

mandates to pay monies as creating private rights to

sue confirms that the Takings Clause requires no

5 See, e.g., Axon Enterprise, Inc. v. FTC, 598 U.S. 175, 196 (2023)

(recognizing that a statutory review scheme did not foreclose a

regulated party’s baseline right to sue for an injunction on the

ground that the regulatory scheme is unconstitutional);

Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324–

25, 326 (2015) (stating that although the Supremacy Clause does

not create a cause of action, equitable principles permit suit for

an injunction against unlawful state action); Ex parte Young, 209

U.S. 123, 155–56 (1908) (holding that a plaintiff subject to

allegedly unconstitutional state action may sue to enjoin it).

11

implied right of action.

For example, Maine

Community Health Options v. United States, 140 S.

Ct. 1308, 1327 (2020), construed the Tucker Act as not

itself creating a federal cause of action against the

United States. A claimant may file a claim under the

Act, whenever a federal act “‘can fairly be interpreted

as mandating compensation by the Federal

Government for the damage sustained.’” Id. at 1327.6

The dissent in Maine Community Health invoked the

same implied-right-of-action jurisprudence that

Judge Higginson did here, see id. at 1331–32, 1333–

35 & n.5 (Alito, J., dissenting) (citing, inter alia,

Alexander v. Sandoval, 532 U.S. 275, 286 (2001)). The

key language in Sandoval insisted that, to create a

federal right to sue, the law must “display[] an intent

to create not just a private right but also a private

remedy.” 532 U.S. at 286. The Maine Community

Health majority explained that “[t]hat is precisely

what the money-mandating inquiry does: It provides

a framework for determining when Congress has

authorized a claim against the Government.” 140 S.

Ct. at 1328 n.12. The Court thus concluded that

insurers to whom the Affordable Care Act mandated

payments had a federal right to sue the Government

for those payments. See id. at 1331.

Again, this is an easier case. If the Takings

Clause does not meet the “mandating compensation”

standard, then nothing does. This Court has held over

and over that the Takings Clause mandates a

6 See also United States v. Navajo Nation, 556 U.S. 287, 289

(2009) (“The other source of law need not explicitly provide that

the right or duty it creates is enforceable through a suit for

damages.”) (emphasis in original).

12

compensatory remedy. See Knick, 139 S. Ct. at 2175–

76; First English, 482 U.S. at 314–15. And Maine

Community Health used the Takings Clause as its

best of example of how a mandate to provide

compensation is sufficient to create a federal right to

sue. “Although there is no express cause of action

under the Takings Clause” in the modern sense, the

Court said, “aggrieved owners can sue through the

Tucker Act under our case law.” Id. at 1328 n.12. But

the Court had already acknowledged that “[t]he

Tucker Act * * * does not create ‘substantive rights.’”

Id. at 1327 (quoting Navajo Nation, 556 U.S. at 290).

This discussion only makes sense if the Court viewed

the Takings Clause as self-executing and requiring no

further statutory right to sue.

C. State Inverse Condemnation Claims

Provide An Alternative Mechanism For

Enforcing The Federal Right To Just

Compensation.

Even if this Court is not prepared to recognize a

federal right of action under the Takings Clause, it

should make clear that takings plaintiffs may employ

state causes of action for inverse condemnation as a

vehicle for their federal claims—and that they may do

so in federal court. State courts routinely hear both

state and federal takings claims under inverse

condemnation causes of action. Often these causes of

action rest on the same principle that this Court

established in First English: that “[s]tatutory

recognition was not necessary” for such claims

because they “are grounded in the Constitution itself.”

482 U.S. at 315 (first quotation quoting Jacobs, 290

U.S. at 16). Texas, for example, has no inverse

condemnation statute, and such claims in state court

13

necessarily derive from the respective state and

federal constitutions themselves. This widespread

practice provides further evidence that Plaintiffs’

understanding of the Fifth and Fourteenth

Amendments is correct. But even if this Court is

unwilling to recognize a federal right of action under

the federal constitution, states remain free to provide

their own remedies.7 A state inverse condemnation

suit based on the federal Takings Clause arises under

federal law. That is, federal courts can hear federal

takings claims based on state forms of proceeding

without any independent federal right of action. A

state’s inverse condemnation claim could therefore

function as the source of a takings claim’s right of

action while the Fifth Amendment secures federal

jurisdiction by “provid[ing] the underlying right to be

enforced.” Bellia & Clark, supra, at 642 n.151.8

The argument against employing a state inverse

cause of action to bring a federal takings claim in

7 If a holding that the Fifth and Fourteenth Amendments do not

provide a remedy for federal takings plaintiffs were understood

also to foreclose state recognition of remedies for violations of

those provisions in the absence of statute, then many plaintiffs

would lack any means to bring federal takings claims in state

court. Judge Higginbotham’s “preferred route” for processing

such claims initially through the state courts followed by direct

appeal to this Court would thus be illusory for many plaintiffs—

including plaintiffs here.

Devillier, 63 F.4th at 417

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

8 See also Ernest A. Young, Federal Suits and General Laws: A

Comment on Judge Fletcher’s Reading of Sosa v. AlvarezMachain, 93 Va. L. Rev. In Brief 33, 34–35 (2007) (“It is crucial

to distinguish between the law that provides the substantive rule

of decision in a case and the law that confers a right upon the

plaintiff to bring the lawsuit.”).

14

federal court would begin with the Holmes Rule,

which holds that “[a] suit arises under the law that

creates the cause of action.” American Well Works Co.

v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)

(Holmes, J.). But the generation that drafted the

Fifth Amendment and the Judiciary Act of 1789 would

not have focused on the provenance of the plaintiffs’

right to sue in this way, because they had neither

developed our modern concept of the cause of action

nor enacted a general federal question statute. They

did have to consider the meaning of “arising under”

federal law for purposes of construing the Supreme

Court’s appellate jurisdiction, however. In that

context—the only one that mattered before 1875—the

Founding-era Congress understood “arising under”

jurisdiction to include claims using state forms to

vindicate federal rights. So common law trespass

cases invoking the Fifth Amendment would arise

under federal law because the Constitution “created

the underlying right to be enforced” through the state

form of proceeding. Bellia & Clark, supra, at 642

n.151. Conversely, a common law trespass claim that

did not invoke the Fifth Amendment would not “arise

under” federal law because no federal right or title

“form[ed] an ingredient of the cause of action.” Ibid.

Even after development of modern rights to sue

and the enactment of a general federal question

statute, federal courts generally did not view a federal

cause of action as a necessary condition for “arising

under” jurisdiction. See, e.g., Smith v. Kansas City

Title & Trust Co., 255 U.S. 180, 199 (1921) (upholding

federal jurisdiction over a state law cause of action

15

incorporating an element of federal law).9 Leading

scholars have noted a widespread and longstanding

practice of bringing takings claims in federal court

without invoking 42 U.S.C. § 1983. See Woolhandler

& Mahoney, supra, at 712 (observing that the

“historical home” of takings claims is “as diversity

actions or as constitutionally-based actions brought

under § 1331”). This practice can be explained in two

ways: either the Takings Clause creates its own

federal cause of action, or plaintiffs were allowed to

use state remedial vehicles to pursue federal takings

claims, and those cases were understood to arise

under federal law for purposes of both Article III and

§ 1331.

Either understanding satisfies this Court’s recent

“arising under” caselaw. This Court has reaffirmed

that a “federal cause of action” is a “sufficient

condition,” but not a “necessary one” for the exercise

of federal question jurisdiction under § 1331. Grable

& Sons Metal Products, Inc. v. Darue Engineering &

Manufacturing, 545 U.S. 308, 317 (2005). When state

law creates the right of action, federal question

jurisdiction exists if “a federal issue is: (1) necessarily

raised, (2) actually disputed, (3) substantial, and

(4) capable of resolution in federal court without

disrupting the federal-state balance approved by

9 See also T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir.

1964) (Friendly, J.) (“Justice Holmes’ formula is more useful for

inclusion than for the exclusion for which it was intended.”);

Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer, &

David L. Shapiro, Hart & Wechsler’s The Federal Courts and the

Federal System 817 (7th ed. 2015) (“The ‘cause of action’ test that

Justice Holmes announced should not be viewed as a canonical

statement of the reach of § 1331.”).

16

Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013).

This test works to preserve jurisdiction when the case

raises a “‘serious federal interest in claiming the

advantages thought to be inherent in a federal forum,’

which can be vindicated without disrupting

Congress’s intended division of labor between state

and federal courts.” Ibid. (quoting Grable, 545 U.S. at

313–14).

A federal Takings Clause claim brought by way of

a state inverse condemnation cause of action checks

all of Grable’s and Gunn’s boxes.

The claim

necessarily raises the scope and power of the Fifth

Amendment’s Takings Clause. The federal issue—

whether the state was obligated to or has provided

just compensation—is actually disputed. See Knick,

139 S. Ct. at 2176. Most important, such cases plainly

raise “a serious federal interest.” Grable, 545 U.S. at

313.

No case in this Court’s “arising under”

jurisprudence denies jurisdiction under § 1331 when

the plaintiff’s case includes a well-pleaded federal

issue. The one case involving such an issue—Smith—

upheld such jurisdiction.10 Moreover, if this Court

holds that no cause of action against a state exists for

a taking in violation of the Fifth and Fourteenth

Amendments, then state inverse condemnation suits

would be the only vehicle for enforcing those

fundamental constitutional principles against state

governments. As discussed in the next Part, bedrock

federal interests support hearing claims for a breach

of the Fourteenth Amendment in federal court.

10 See 255 U.S. at 201 (upholding federal jurisdiction because

“the controversy concerns the constitutional validity of an act of

Congress which is directly drawn in question”).

17

Finally, hearing takings claims against state

governments would not disrupt the federal-state

balance. After all, federal courts have long heard

takings claims asserted without a statutory federal

right of action. Prior to 1875, these claims came in

under the diversity statute and more limited grants of

federal question jurisdiction. Bellia & Clark, supra,

at 642 n.151; Woolhandler & Mahoney, supra, at 684

(citing federal cases hearing takings claims on

diversity grounds and under other jurisdictional bases

before enactment of the general federal question

jurisdiction statute). But once there was general

federal question jurisdiction, federal courts frequently

entertained takings suits against all levels of state

government without recourse to 42 U.S.C. § 1983. See

Woolhandler & Mahoney, supra, at 691–94. After all,

this Court did not hold that local governments were

suable under § 1983 until the Monell decision in 1978.

Monell v. Department of Social Services, 436 U.S. 658

(1978). In any event, takings claims against cities and

counties—as opposed to state governments—“provide

the central arena through which constitutional

property frictions are resolved.” Nestor M. Davidson

& Timothy M. Mulvaney, Takings Localism, 121

Colum. L. Rev. 215, 231–34 (2021). Hence, as in

Grable, recognizing federal jurisdiction over state

inverse condemnation claims alleging a federal taking

would not “herald[] a potentially enormous shift of

traditionally state cases into federal courts.” 545 U.S.

at 319.

State inverse condemnation claims are not a

panacea, and this brief does not maintain they are an

adequate substitute for a federal right of action in all

circumstances.

States that provide an inverse

18

condemnation vehicle may choose to repeal or limit

them—especially if this Court holds that doing so

would free the states from the threat of federal

takings claims. In that event, this Court would face

difficult questions concerning the obligation of state

courts to provide remedies for federal constitutional

violations. Cf. Montgomery v. Louisiana, 577 U.S. 190

(2016) (concerning the extent to which state courts

must provide remedies under state law when new

rules of federal constitutional law have retroactive

effect). Moreover, this Court’s capacity to police the

adequacy of state remedies—and the state courts’

interpretation of federal takings law—is limited by

other pressures on the Court’s docket. Such concerns

have long motivated this Court’s insistence that

plaintiffs alleging state violations of rights under the

Fourteenth Amendment ordinarily must have a

federal remedy and the option of pursuing it in federal

court. See cases cited supra. But if this Court is not

ready to recognize a federal right to sue under the

Takings Clause, it should at a minimum make clear

that federal takings plaintiffs may use state-law

vehicles to pursue their federal claims in federal

court.

II. STATE COURT IS NOT THE PREFERRED FORUM

FOR FEDERAL TAKINGS CLAIMS

The availability of a state court forum for federal

takings claims does not override the textual,

historical, and doctrinal basis for a federal forum.

Judge Higginbotham’s assertion that “[t]he pathway

for enforcement in takings by the state is rather

through the state courts to the Supreme Court,” would

make the Takings Clause an aberration in federal

rights enforcement.

Devillier, 63 F.4th at 417

19

(Higginbotham, J., concurring in denial of rehearing

en banc).

The procedural history of this case

illustrates one pitfall with exclusive reliance on a

state court “pathway”—it can be readily derailed by

removal to federal court, where the claim then fails for

want of a federal cause of action.

The answer, however, is not to construe the

jurisdictional rules to make it easier to stay in federal

court. The Fourteenth Amendment has long been

understood as not simply expanding the substance of

federal rights, but also as permitting federal rightsholders a right to litigate those rights in a federal

forum, in conjunction with 42 U.S.C. § 1983 and the

1875 Judiciary Act’s provision for general federal

question jurisdiction. See, e.g., Hart & Wechsler,

supra, at 28. That situation does not change simply

because the self-executing Takings Clause obviates

the need for § 1983 in takings litigation.

A. Fourteenth Amendment Claims Are Not

Committed To The State Courts.

The self-executing remedy mandated by the Fifth

Amendment’s Takings Clause applies with equal force

to the states because the Fourteenth Amendment

requires them to play by the same rules as the Federal

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

Chicago, 166 U.S. 226, 235 (1897). This Court has

repeatedly held that “[i]ncorporated Bill of Rights

guarantees are ‘enforced against the States under the

Fourteenth Amendment according to the same

standards that protect those personal rights against

federal encroachment.’” Timbs v. Indiana, 139 S. Ct.

682, 687 (2019) (quoting McDonald v. City of Chicago,

20

561 U.S. 742, 765 (2010)).11 But the Reconstruction

Congresses that drafted the Fourteenth Amendment

did not entrust its enforcement to the states. Rather,

by enacting the general federal question statute in

1875, they altered the original Judiciary Act’s

presumption that federal rights claims would be

brought in state court in the first instance.12 As this

Court explained a half-century ago, “this latter

enactment [made] the lower federal courts * * * ‘the

primary and powerful reliances for vindicating every

right given by the Constitution, the laws, and treaties

of the United States.’” Steffel v. Thompson, 415 U.S.

452, 464 (1974) (quoting Felix Frankfurter & James

Landis, The Business of the Supreme Court 65

(1928)). This means that the ability of federal courts

to provide a remedy for state violations of those rights

cannot turn on the availability of a state court remedy.

This Court has recognized for over a century that

federal remedies do not—and cannot—depend on

11 See also New York State Rifle & Pistol Association v. Bruen,

142 S. Ct. 2111, 2137 (2022) (“[I]ndividual rights enumerated in

the Bill of Rights and made applicable against the States through

the Fourteenth Amendment have the same scope as against the

Federal Government.”); Ramos v. Louisiana, 140 S. Ct. 1390,

1397 (2020) (“[I]ncorporated provisions of the Bill of Rights bear

the same content when asserted against States as they do when

asserted against the federal government.”).

12 See generally Justin Crowe, Building the Judiciary: Law,

Courts, and the Politics of Institutional Development 161–68

(2012) (recounting how the 1875 Act creating general federal

question jurisdiction made federal courts the primary guarantors

of federal rights, and that Congress intended not only to protect

the freed former slaves but also to use federal courts to protect

property and business interests from state action).

21

state law.

In Home Telephone & Telegraph Co. v. City of Los

Angeles, 227 U.S. 278, 282 (1913), plaintiffs brought a

federal due process challenge to the city’s telephone

rates. The City argued that because its rates might

have violated the state constitution, the federal court

could not consider the federal claim until a state court

first resolved whether there was valid “state action”

under state law. Id. at 284. This Court rejected that

argument, declaring that the federal courts’ power to

“afford protection to a claim of right under the

Constitution of the United States, as against the

action of a state or its officers, [cannot] depend on the

ultimate determination of the state courts

[or] * * * require a stay of all action to await such

determination.” Ibid. Such a rule would “remov[e]

from the control of that Amendment the great body of

rights which it was intended it should safeguard.” Id.

at 286. That would “wholly misconceiv[e] the scope

and operation of the [Fourteenth] Amendment.” Ibid.;

see also McNeese v. Board of Education for

Community Unit School District 187, 373 U.S. 668,

674 (1963) (holding that when plaintiffs assert the

“depriv[ation] of rights protected by the Fourteenth

Amendment * * * [s]uch claims are entitled to be

adjudicated in the federal courts”).

The availability of a federal remedy also does not

turn on whether a state, rather than a municipality,

violated the Fourteenth Amendment. Although this

Court’s initial post-Fourteenth Amendment Takings

Clause cases recognize a remedy against

municipalities rather than states, see, e.g., Village of

Norwood v. Baker, 172 U.S. 269 (1898); Chicago, B. &

Q.R. Co., 166 U.S. 226; see generally Woolhandler &

22

Mahoney, supra, at 691–92 (citing nineteenth century

takings cases in federal court), those cases were not

meant to differentiate municipalities from their

sovereign states. These cases did not generally rely

on 42 U.S.C. § 1983, see Woolhandler & Mahoney,

supra, at 691–94, and indeed this Court did not

suggest that the availability of that statute might be

different as to states and their political subdivisions

until the Monell and Will cases in the late twentieth

century.13 Instead, this Court recognized that the

Fourteenth Amendment “refer[s] to all the

instrumentalities of the state,—to its legislative,

executive, and judicial authorities,” Chicago, B. &

Q.R. Co., 166 U.S. at 233, and that state officials “by

virtue of public position under a state government”

can violate the Fourteenth Amendment, Raymond v.

Chicago Union Traction Co., 207 U.S. 20, 36 (1907)

(enjoining a state board of equalization from taking

property without due process of law).

B. The Fifth Circuit’s Decision Undermines Knick’s Robust Protection Of

Property Rights.

Rejecting any federal court vehicle for asserting

takings claims against a state would conflict with this

Court’s reasoning in Knick, 139 S. Ct. 2162. That

recent decision holds that a plaintiff need not pursue

state-law remedies before bringing a Takings Clause

claim under § 1983 in federal court. Id. at 2171. As

this Court explained, the availability of state-law

13 See Monell, 436 U.S. at 690 (holding that municipalities are

“persons” subject to § 1983 liability); Will v. Michigan

Department of State Police, 491 U.S. 58, 71 (1989) (holding that

the state is not a person under § 1983).

23

remedies for takings cannot limit a person’s right to

just compensation under the Fifth Amendment. Ibid.

That conclusion did not rest on the availability of a

right of action against local governments under

§ 1983. Instead, it centered on the “self-executing”

nature of the Fifth Amendment. Id. at 2172. That

remedy is equally available against a state.

Knick recognizes that a requirement to exhaust

state remedies would subject plaintiffs to a

“preclusion trap.” Id. at 2167. Because “a state court’s

resolution of a claim for just compensation under state

law generally has preclusive effect in any subsequent

federal suit,” plaintiffs who litigated their takings

claims on the merits in state court would be barred

from ever litigating those claims in federal court.

Ibid. An exhaustion requirement thus “imposes an

unjustifiable burden on takings plaintiffs.” Ibid.

Preclusion by a state court’s judgment is only a “trap,”

of course, if the plaintiff is entitled to a federal forum.

The Fifth Circuit’s refusal to recognize the selfexecuting remedy of the Takings Clause imposes a

much greater obstacle to vindicating property rights

than the “preclusion trap” that the Knick Court

cautioned against. Without a self-executing remedy,

no federal court could review plaintiffs’ takings claims

against a state absent the rare occasions when this

Court grants certiorari. Such a takings regime would

curtail federal review even more severely than the

scheme that this Court rejected in Knick because it

would not merely create a preclusion trap—it would

foreclose access to the federal courts altogether. If the

Court is to “restor[e] takings claims to the full-fledged

constitutional status the Framers envisioned when

they included the Clause among the other protections

24

in the Bill of Rights,” id. at 2170, it must reject the

Fifth Circuit’s takings-claims-only-in-state-court

regime.

Under the Fifth Circuit’s rule, states and

municipalities easily could sidestep Knick. Most

takings are carried out by cities, counties, and other

state political subdivisions that are subject to suit

under § 1983 and Knick. But states have considerable

flexibility in how to allocate government functions

among state and municipal agencies. If states can

avoid any accountability for takings—or even just

ensure that takings claims will be heard in state

court—simply

by

reassigning

regulatory

or

construction responsibilities to state agencies, many

states will surely do so. And so what might presently

be a relatively small subset of federal takings claims

may well become a very large one in short order. This

Court should not countenance a regime that would

allow state governments to game the system and gut

the protections established by this Court in Knick.

CONCLUSION

The judgment of the court of appeals should be

reversed.

25

Respectfully submitted,

Gregg J. Costa

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

811 Main Street, Suite 3000

Houston, TX 77002-6117

346.718.6600

GCosta@gibsondunn.com

Counsel for Amici Curiae

November 20, 2023