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

No. 22-913

IN THE

Supreme Court of the United States

RICHARD DEVILLIER, et al.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PROFESSOR CARLOS M. VÁZQUEZ

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

FELICIA H. ELLSWORTH

Counsel of Record

ERIC L. HAWKINS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

felicia.ellsworth@wilmerhale.com

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ....................................................................... 6

I.

THE TEXT OF THE TAKINGS CLAUSE AND

FIRST ENGLISH ANSWER THE QUESTION

PRESENTED ................................................................... 6

II. THE TAKINGS CLAUSE STRIKES ITS OWN

BALANCE ....................................................................... 9

III. THE HISTORICAL PEDIGREE OF DAMAGES

REMEDIES

FOR

CONSTITUTIONAL

VIOLATIONS ................................................................. 15

CONCLUSION ................................................................. 25

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Alexander v. Sandoval, 532 U.S. 275 (2001)............ 12, 14

Belknap v. Schild, 161 U.S. 10 (1896) ............................. 22

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388

(1971) .............................................................................. 3

Boyd v. United States, 116 U.S. 616 (1886).................... 19

Bowen v. Massachusetts, 487 U.S. 879 (1988) ................. 8

Bush v. Lucas, 462 U.S. 367, 380 (1983) ......................... 14

Cannon v. University of Chicago, 441 U.S. 677

(1979) ...........................................................11, 13, 15-17

Carlson v. Green, 446 U.S. 14 (1980) ........................ 10, 22

Cort v. Ash, 422 U.S. 66 (1975) ........................................ 13

Davis v. Passman, 442 U.S. 228 (1979) .......................... 10

Egbert v. Boule, 142 S. Ct. 1793 (2022) ... 3, 9-10, 12, 14, 23

Erie Railroad Co. v. Tompkins, 58 S. Ct. 817

(1938) .......................................................................21-22

Ex Parte Young, 209 U.S. 123 (1908) ............................. 18

First English Evangelical Lutheran Church of

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

304 (1987) ......................................................4, 6-7, 9, 25

Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818) ............. 20

Hernandez v. Mesa, 140 S. Ct. 735

(2020) ...............................................2, 5, 9, 11-12, 14, 17

Imlay v. Sands, 1 Cai. 566 (N.Y. Sup. Ct. 1804) ........... 20

iii

TABLE OF AUTHORITIES—Continued

Page

In re Finacial Oversight & Management Board,

41 F.4th 29 (1st Cir. 2022) ......................................... 10

Jacobs v. United States, 290 U.S. 13 (1933) ............... 6, 25

J.I. Case Co. v. Borak, 377 U.S. 426 (1964).................... 12

Key Tronic Corp. v. United States, 511 U.S. 809

(1994) .............................................................................. 8

Kidd v. Swartwout, 14 F. Cas. 457 (C.C.S.D.N.Y.

1843) (No. 7,756) ......................................................... 20

Knick v. Township of Scott, 139 S. Ct. 2162

(2019) ........................................................................ 6, 16

Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) ............ 21

Maine Community Health Options v. United

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

Merrill, Lynch, Pierce, Fenner & Smith v.

Curran, 456 U.S. 353 (1982) ...................................... 13

Merriam v. Mitchell, 13 Me. 439 (1836) ......................... 20

Mitchell v. Harmony, 54 U.S. (13 How.) 115

(1851) ............................................................................ 22

PennEast Pipeline Co. v. New Jersey, 141 S. Ct.

2244 (2021) ................................................................... 18

Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) .......... 22

Tanzin v. Tanvir, 141 S. Ct. 486 (2020) .....................17-18

Touche Ross & Co. v. Redington, 442 U.S. 560

(1979) ............................................................................ 13

Transamerica Mortgage Advisors, Inc. v.

Lewis, 444 U.S. 11 (1979) ........................................... 13

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Causby, 328 U.S. 256 (1946) ................. 6

United States v. Clarke, 445 U.S. 253 (1980) ................... 7

Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806) ............... 21

Ziglar v. Abbasi, 582 U.S. 120 (2017) ................. 11, 14, 17

FOREIGN CASES

Chambers v. Robinson, (1726) 93 Eng. Rep. 787

(KB) .............................................................................. 20

Entick v. Carrington, (1765) 95 Eng. Rep. 807

(KB) .............................................................................. 19

Huckle v. Money, (1763) 95 Eng. Rep. 768 (KB) .......... 20

Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (KB) ............. 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V ...................................................... 2, 6

28 U.S.C.

§ 2679 ............................................................................ 22

§ 2680 ............................................................................ 22

42 U.S.C. § 1983 ............................................................... 3, 7

Act for the Relief of George Little, Priv. L. No.

09-02, ch. 4, 6 Stat. 63 (1807) ..................................... 21

OTHER AUTHORITIES

Black’s Law Dictionary (5th ed. 1979) ............................. 8

v

TABLE OF AUTHORITIES—Continued

Page

Brauneis, Robert, The First Constitutional

Tort: The Remedial Revolution in

Nineteenth-Century Just Compensation

Law, 52 Vanderbilt L. Rev. 57 (1999) ........................ 7

Dicey, Albert Venn, Introduction to the Study

of the Law of the Constitution (10th ed.

1959) ............................................................................. 19

Easterbrook, Frank H., Forward: The Court

and the Economic System, 98 Harv. L. Rev.

4 (1984) ......................................................................... 15

Fallon, Richard H., Jr. & Daniel J. Meltzer, New

Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731

(1991) ............................................................................ 16

Fallon, Richard H., Jr., Constitutional

Remedies: In One Era and Out the Other,

136 Harv. L. Rev. 1300 (2023)................................... 24

Fallon, Richard H., Jr., et al., Hart & Wechsler’s

The Federal Courts and the Federal System

654 (7th ed. 2015) .................................................. 11, 15

Hagman, Donald G., Urban Planning and Land

Development Control Law (1971) .............................. 8

H.R. Rep. No. 100-700 (1988), reprinted in 1988

U.S.C.C.A.N. 5945 ...................................................... 22

Hill, Alfred, Constitutional Remedies, 69

Colum. L. Rev. 1109 (1969) ....................................... 22

Jaffe, Louis L., Suits Against Government and

Officers: Sovereign Immunity, 77 Harv. L.

Rev. 1 (1963) ................................................................ 19

vi

TABLE OF AUTHORITIES—Continued

Page

Kramer, Larry, The Lawmaking Power of the

Federal Courts, 12 Pace L. Rev. 263 (1992) ........... 22

Maier, Pauline, Ratification: The People Debate

the Constitution, 1787-1788 (2010) ........................... 16

6 Nichols, Philip, Eminent Domain (3d rev. ed.

1972)................................................................................ 8

Pfander, James E. & David Baltmanis,

Rethinking Bivens: Legitimacy and

Constitutional Adjudication, 98 Geo. L.J.

117 (2009) ..................................................................... 22

Pfander, James E. & Jonathan L. Hunt, Public

Wrongs and Private Bills: Indemnification

and Government Accountability in the

Early Republic, 85 N.Y.U. L. Rev. 1862

(2010) ...................................................................... 18, 21

Pfander, James E., Constitutional Torts and the

War on Terror (2017) ................................................. 20

Pfander, James E., Dicey’s Nightmare: An

Essay on the Rule of Law, 107 Cal. L. Rev.

737 (2019) ..................................................................... 19

Schwartz, Joanna C., et al., Going Rogue: The

Supreme Court’s Newfound Hostility to

Policy-Based Bivens Claims, 96 Notre

Dame L. Rev. 1835 (2021) .......................................... 23

Sisk, Gregory, Recovering the Tort Remedy for

Federal Official Wrongdoing, 96 Notre

Dame L. Rev. 1789 (2021) ......................................... 18

vii

TABLE OF AUTHORITIES—Continued

Page

Vázquez, Carlos M. & Stephen I. Vladeck, State

Law, the Westfall Act, and the Nature of the

Bivens Question, 161 U. Pa. L. Rev. 509

(2013) .................................................................19-20, 23

Vázquez, Carlos M., Bivens and the Ancien

Régime, 96 Notre Dame L. Rev. 1923

(2021) ................................................ 11-12, 15-17, 23-24

Vázquez, Carlos M., The Constitution as a

Source of Remedial Law, 132 Yale L.J.

Forum 1062 (2023) ........................................................ 6

Vázquez, Carlos M., What is the Eleventh

Amendment?, 106 Yale L.J. 1683 (1997) ................... 6

Vladeck, Stephen I., The Disingenuous Demise

and Death of Bivens, 2019-2020 Cato Sup.

Ct. Rev. 263 ................................................................. 18

Vladeck, Stephen I., The Inconsistent

Originalism of Judge-Made Remedies

Against Federal Officers, 96 Notre Dame L.

Rev. 1869 (2021) .......................................................... 18

Vladeck, Stephen I., Bivens Remedies and the

Myth of the “Heady Days,” 8 U. St. Thomas

L.J. 513 (2011) ............................................................. 12

Woolhandler, Ann, The Common Law Origins

of Constitutionally Compelled Remedies,

107 Yale L.J. 77 (1997) ............................................... 19

IN THE

Supreme Court of the United States

No. 22-913

RICHARD DEVILLIER, et al.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PROFESSOR CARLOS M. VÁZQUEZ AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF AMICUS CURIAE

Professor Carlos M. Vázquez is an Associate Dean

and the Scott K. Ginsburg Professor of Law at

Georgetown University Law Center.1 He has written

extensively on sovereign immunity and official liability

for constitutional violations. He is a member of the

American Law Institute and served as an advisor to the

Restatement (Fourth) of Foreign Relations Law. He

1

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

and no entity or person, other than amicus curiae and his counsel,

made a monetary contribution intended to fund the preparation or

submission of this brief.

2

has also served as chair of the Federal Courts section of

the Association of American Law Schools. He teaches

Federal Courts and the Federal System, Conflict of

Laws, and Transnational Litigation, among other

courses. Before joining the Georgetown Faculty, Professor Vázquez practiced with the law firm Covington &

Burling in Washington, D.C. He submits this brief as a

scholar of constitutional remedies and to supply historical context for causes of action against governments and

government actors for violations of constitutional rights.

INTRODUCTION AND SUMMARY OF ARGUMENT

The principle that governments cannot take property without paying just compensation is a bedrock feature of American constitutional law. Professor Vázquez

agrees with petitioners that the Takings Clause’s text

and history, and this Court’s precedents, authorize aggrieved property owners to vindicate this fundamental

right by seeking redress in the Courts—irrespective of

whether the legislature has provided them a cause of action. Everyone agrees that the Takings Clause requires

that public takings be accompanied by just compensation. To rule that the remedy provided by the Takings

Clause cannot take the form of a claim for “just compensation” would thus require the Clause be vindicated in

some other way, such as injunctive relief, that could

prove far more intrusive than the remedy contemplated

by the constitutional text. And for no reason: The

Framers themselves called for the remedy they intended when they composed the constitutional command

that “private property [cannot] be taken for public use,

without just compensation.” U.S. Const. amend. V.

In reaching the opposite conclusion, the Fifth Circuit principally relied not on this Court’s Takings Clause

jurisprudence, but rather on Hernandez v. Mesa, 140 S.

3

Ct. 735 (2020)—a case interpreting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). Pet. App. 2a. Similarly, two members of the Fifth Circuit panel, concurring in the denial

of rehearing en banc, grounded their reasoning in this

Court’s recent Bivens-related jurisprudence. Judge

Higginbotham, for example, first cited Mesa and then inferred that Congress implicitly rejected a cause of action

against the States for takings by omitting States from

the text of 42 U.S.C. § 1983. Pet. Supp. App. 50a. Judge

Higginson was more explicit. In his concurrence, he

drew an apparent distinction between remedies and

causes of action, and then analogized directly to this

Court’s proclamation that “implying constitutional

causes of action is ‘a disfavored judicial activity.’” Id. at

51a (quoting Egbert v. Boule, 142 S. Ct. 1793, 1803

(2022)). And he borrowed from the mode of statutory

interpretation recently espoused in Mesa and Egbert,

warning that “implying a cause of action against the

states in the Takings Clause” risks “arrogat[ing] legislative power[.]” Id. at 56a (quoting Egbert, 142 S. Ct. at

1803). Texas echoed both sentiments when opposing certiorari. Opp. 15-16.

This reliance on Bivens is misguided. As an initial

matter, and as petitioners (and Judge Oldham) explain,

this Court has already held in First English that the

Takings Clause creates a right of action by force of its

own text. Resorting to Bivens is therefore unnecessary:

there is no reason to grapple with difficult inquiries regarding the scope and nature of implied rights of action

generally—whether in the Constitution or in statutory

text—when the Takings Clause contains an explicit remedy of “compensation” in the context of a taking, and

when this Court has already explained that such

4

expressly commanded compensation is the equivalent to

an express right of action.

But even assuming arguendo (pace First English)

that a legal text creating the remedy of compensation is

not technically the same as the creation of a right of action to seek that remedy, Bivens and its progeny do not

support the Fifth Circuit’s holding below.

First, this Court’s Bivens jurisprudence is inapposite to the present inquiry. If the rationale in recent

Bivens jurisprudence was insufficient to overrule

Bivens itself (or the two other Supreme Court decisions

recognizing a Bivens remedy), even less should it be

grounds to overrule First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304 (1987). Further, neither Bivens nor this Court’s

other implied-right-of-action cases involved provisions

(like the Takings Clause) that explicitly established their

affirmative remedy. The rationale underlying the recent

Bivens jurisprudence—deference to legislative balances

and compromise, and reticence to endorse judicial creativity when laws are silent as to their remedies—has no

application to a constitutional provision where that compromise has expressly been struck, and the judge’s task

is not creative but textually prescribed: to award compensation that is just. This Court’s recent decisions on

Bivens and on the implication of rights of action under

statutes instruct courts to be cautious before recognizing a right of action for remedies not prescribed by the

lawmaker. They do not urge caution before recognizing

rights of action for remedies that are prescribed in the

relevant legal texts.

Second, even if Bivens were relevant to the question

presented, the historical context surrounding the Bill of

Rights (and the Takings Clause) cautions against an

5

overly restrictive view of damages actions against governments and government actors. The animating principle of statutory construction undergirding this Court’s

recent Bivens jurisprudence (and presumably the

panel’s decision below) is that statutes are products of

legislative compromise to which courts should defer.

But that mode of analysis has less purchase with respect

to constitutional provisions like the Bill of Rights, which

the Framers intended to be effectively policed. Recognizing that, when the Bill of Rights was written, rights

of action for constitutional violations were assumed to be

readily available by virtue of the common law therefore

honors the Framers’ intentions. This Court has already

acknowledged that the Takings Clause (along with the

rest of the Bill of Rights) was drafted and adopted

against a historic backdrop of common law remedies for

various torts (including property-related torts like trespass) recognized in English common law and in the early

Republic. The Framers were undoubtedly aware of that

“ancien régime.” Mesa, 140 S. Ct. at 741. A direct cause

of action for uncompensated takings accords with not

just the text of the Fifth Amendment but its historical

context as well.

In short, this Court should resist the anachronistic

argument suggested by the Fifth Circuit and Texas that

the Framers intended there be no direct cause of action

under the Takings Clause. The Takings Clause’s text,

and the historical backdrop against which it was written,

both support the opposite conclusion.

6

ARGUMENT

I.

THE TEXT OF THE TAKINGS CLAUSE AND FIRST ENGLISH ANSWER THE QUESTION PRESENTED

Answering the question presented can begin and

end with the constitutional text. The Fifth Amendment

commands that “just compensation” be paid when “private property” is “taken for public use.” U.S. Const.

amend. V. Petitioners correctly explain that this constitutional conferral of both right and remedy—described

by this Court as “self-executing”—does not depend for

its efficacy on federal or state legislative grace. Knick

v. Township of Scott, 139 S. Ct. 2162, 2172 (“‘[I]n the

event of a taking, the compensation remedy is required

by the Constitution.’” (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 (1987))); id. (“rejecting the view

that the Constitution does not, of its own force, furnish a

basis for a court to award money damages against the

government” (internal citation and quotation marks

omitted)); id. at 2170 (“[I]f there is a taking, the claim is

‘founded upon the Constitution’” (quoting United States

v. Causby, 328 U.S. 256, 267 (1946)); First English, 482

U.S. at 315 (“claims for just compensation are grounded

in the Constitution itself”); id. (“‘suits [for just compensation are] founded upon the Constitution of the United

States’’’) (quoting Jacobs v. United States, 290 U.S. 13,

16 (1933)). Rather, compensation for the government’s

taking of a person’s property is constitutionally mandated, full stop. Vázquez, What is the Eleventh Amendment?, 106 Yale L.J. 1683, 1709-1710 (1997) (explaining

that the Takings Clause is “one of the few constitutional

provisions that expressly addresses issues of liability”

and that this “Court has indicated that this remedy is

available in the state courts even if there is no statute

that authorizes it[.]”);Vázquez, The Constitution as a

7

Source of Remedial Law, 132 Yale L.J. Forum 1062,

1064-1065 (2023) (noting that the Takings Clause is one

of only two express references to remedies in the Constitution).

Here, petitioners plausibly contend that Texas took

their property without paying for it. They sued in state

court, but Texas removed the case to federal court. As

such, the Takings Clause (made applicable to Texas via

the Fourteenth Amendment) afforded petitioners the

opportunity, in state court and in the federal court that

Texas itself chose, to seek redress irrespective of the

fact they cannot sue Texas as a “person” under 42 U.S.C.

§ 1983. The fact that the Fifth Circuit, in affirming the

dismissal below, has now left petitioners with no remedy

for the State’s flooding of their property—neither a

venue, nor a cause of action—is itself a strong indication

that the court has seriously erred.

The Fifth Circuit’s view that petitioners lack a right

of action for monetary relief because states are not persons within the meaning of § 1983 overlooks the fact that

the Takings Clause itself establishes a right of action for

just compensation, as this Court has held. See First

English, 482 U.S. at 315 (“We have recognized that a

landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of

the constitutional provision with respect to compensation.” (internal citations and quotations omitted)); see

Brauneis, The First Constitutional Tort: The Remedial

Revolution in Nineteenth-Century Just Compensation

Law, 52 Vanderbilt L. Rev. 57, 58 (1999) (“[T]he idea that

the federal and state just compensation clause provide a

private right of action for damages is a familiar one.”);

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

landowner is entitled to bring [‘a cause of action against

a government defendant to recover the value of

8

property which has been taken in fact by the government defendant’] as a result of ‘the self-executing character of the constitutional provision with respect to compensation … .’” (quoting Hagman, Urban Planning and

Land Development Control Law 328 (1971) and 6 Nichols, Eminent Domain § 25.41 (3d rev. ed. 1972))).

This Court’s holding in First English that a law that

establishes a right to compensation for takings of property also establishes a right of action for compensation

is consistent with this Court’s frequently expressed

view that when a provision “command[s] the payment of

a specified amount … [it] impliedly authorizes (absent

other indication) a claim for damages[.]” Maine Cmty.

Health Options v. United States, 140 S. Ct. 1308, 1329

(2020) (quoting Bowen v. Massachusetts, 487 U.S. 879,

923 (1988) (Scalia J., dissenting)). Indeed, “to say that A

shall be liable to B is the express creation of a right of

action.’” Key Tronic Corp. v. United States, 511 U.S.

809, 818 n.11 (1994) (quoting id. at 823 (Scalia, J., dissenting)) (emphasis in original). To say that A is under a legal obligation to pay compensation to B is the same as

saying that A is liable to B. A person is “liable” to another when that person is under a duty to provide a remedy for the breach of a legal obligation. See Black’s Law

Dictionary at 823, 824 (5th ed. 1979) (definitions of “liability” and “liable.”).2

Perhaps for that reason, the Fifth Circuit did not

rely on this Court’s Takings Clause cases. Rather, both

2

In Maine Cmty. Health Options, the Court said in a footnote

that the Takings Clause does not create an express right of action.

Nevertheless, it concluded that, because the clause creates a “mandatory … obligation to pay,” it creates one by necessary implication.

140 S. Ct. at 1328 n.12. Otherwise, the “mandatory” “constitutional”

“obligation to pay” would be “meaningless.” Id.

9

Judge Higginbotham and Judge Higginson—members

of the original panel concurring in denial of rehearing en

banc—principally relied on two recent decisions from

this Court interpreting Bivens: Hernandez v. Mesa, 140

S. Ct. 735 (2020), and Egbert v. Boule, 142 S. Ct. 1793

(2022). Pet. Supp. App. 44a (first citation in Judge Higginbotham’s concurrence); id. at 51a (second citation in

Judge Higginson’s).

But this is a Takings Clause case, not a Bivens case,

and this Court’s recent Bivens jurisprudence does not

and should not require eviscerating a cause of action under the Takings Clause. Bivens was about when it is appropriate for a court to judicially recognize a right of action for the violation of a constitutional provision that—

unlike the Takings Clause—does not itself create a particular remedy. The Bivens line of cases is entirely inapposite.

II. THE TAKINGS CLAUSE STRIKES ITS OWN BALANCE

The Fifth Circuit’s holding appears to reflect the

view that for a law to establish a legal remedy such as

compensation is not the same thing as the law establishing a right of action to recover that remedy. Pet. Supp.

App. 54a n.1 (acknowledging this Court’s holding that

“‘the compensation remedy is required by the Constitution’” but maintaining that “the Takings Clause does not

create an express constitutional cause of action.” (quoting First English, 482 U.S. at 316)). This view is inconsistent with First English and the many authorities discussed in Part I. But, even accepting arguendo that a

law which provides for an affirmative remedy does not

necessarily create a cause of action to seek that remedy,

this Court’s recent Bivens decisions do not support overruling First English.

10

First, it is worth noting that, although this Court has

distanced itself from the reasoning of the Bivens decision, that skepticism has led it to hold only that expansion of Bivens is a “disfavored judicial activity.” Egbert,

142 S. Ct. at 1803. This Court has accordingly established a stringent test for extending Bivens to “new contexts.” By “new contexts,” this Court means contexts

not controlled by its own prior decisions recognizing a

Bivens action—i.e., Bivens itself, Davis v. Passman, 442

U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980).

Egbert, 142 S. Ct. at 1808 (enumerating these three

cases). If the Fifth Circuit were correct that this case

presents a Bivens issue, the Court would have included

First English on this list. That it did not is a strong indication that this Court understands the Takings Clause

issue to be distinct from a Bivens issue. And even if

First English was excluded from this list inadvertently,

the Court’s decision to preserve the three previouslyrecognized Bivens actions should lead it to preserve

First English as well. If the rationale in Egbert does not

warrant overruling Bivens itself (or its extension in

Carlson and Davis) then certainly that same rationale

cannot warrant overruling First English either.

Second, even assuming that a law creating a remedy

does not ipso facto create a right of action to seek that

remedy, this Court’s unreceptiveness to implying rights

of action for violations of the Constitution does not apply

to constitutional provisions which, like the Takings

Clause, expressly create a remedy. In re Fin. Oversight

& Mgmt. Bd., 41 F.4th 29, 46 (1st Cir. 2022) (“Neither

Bivens nor section 1983 rests on a provision of the Constitution that mandates a specific remedy in the same

way the Takings Clause mandates just compensation[.]”), cert. denied, 143 S. Ct. 774 (2023). None of this

Court’s decisions declining to imply a private right

11

action in the constitutional or statutory contexts has involved a provision that explicitly identifies a remedy.

But the Takings Clause does. That express remedy obviates resorting to a canon or jurisprudence pertaining

to implying a right of action under laws that do not expressly provide the lawmakers’ desired remedy.

More fundamentally, the rationale underlying this

Court’s recent Bivens jurisprudence—i.e., deference to

legislative balancing of interests—has no purchase

where the balance is already struck within the provision

itself.

This Court’s recent reticence to find implied causes

of action in statutes rests on “the insight that legislation

does not reflect a single legislative purpose but is instead

the product of a compromise among competing interests.” Vázquez, Bivens and the Ancien Régime, 96

Notre Dame L. Rev. 1923, 1294 (2021); Fallon, Jr., et al.,

Hart & Wechsler’s The Federal Courts and the Federal

System 654 (7th ed. 2015). As this Court explained in

Mesa:

[A] lawmaking body that enacts a provision that

creates a right or prohibits specific conduct may

not wish to pursue the provision’s purpose to the

extent of authorizing private suits for damages.

For this reason, finding that a damages remedy

is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers.

140 S. Ct. at 742; see also Ziglar v. Abbasi, 582 U.S. 120,

135 (2017); Cannon v. University of Chicago, 441 U.S.

677, 730, 743, 746 (1979) (Powell, J., dissenting) (dissenting from decision finding that Title IX contains an implied right of action, explaining that doing so “allow[ed]

the Judicial Branch [to] assume policymaking authority

12

vested by the Constitution in the Legislative

Branch[.]”); Vázquez, 96 Notre Dame L. Rev. at 1926.

As Mesa shows, the Court’s recent approach to

Bivens is an extension of its new approach to implying

rights of action under statutes. While this Court previously assumed a “duty … to be alert to provide such remedies as are necessary to make effective the congressional purpose,” J.I. Case Co. v. Borak, 377 U.S. 426, 433

(1964), it has more recently reframed its “judicial task”

as a duty “to interpret the statute Congress has passed

to determine whether it displays an intent to create not

just a private right of action but also a private remedy,”

Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001);

Vladeck, Bivens Remedies and the Myth of the “Heady

Days,” 8 U. St. Thomas L.J., 513, 521 (2011) (“[W]hatever the merits of Sandoval’s approach … the crux of

the dispute between the majority and the dissenters—

and between more recent and older case law—boils

down to methodological disagreements over statutory

interpretation.”). In keeping with this new approach

just two terms ago, the Court reduced the test for expanding Bivens—which originally “in no way required

indicia of legislative intent,” Vladeck, 8 U. St. Thomas

L.J. at 519—“to a single question: whether there is any

reason to think that Congress might be better equipped

to create a damages remedy.” Egbert, 596 U.S at 492.

But deference to tacit balances struck in legislation

has no application where the relevant law is not silent,

but contains the very remedy at issue. There is no risk

of “upset[ting] the careful balance of interests struck by

the lawmakers,” Mesa, 140 S. Ct. at 742, when the Framers have carefully struck a balance by including within

the Takings Clause itself the remedy they intended. As

the petitioners note, Pet. Br. 37-38, if the Takings Clause

were not read to establish a right of action for

13

compensation, then the default remedy for an uncompensated taking under established principles of equity

would be an injunction against the relevant state officials. Such a holding would judicially undermine the balance struck by the Framers (and relied on by property

owners), contrary to the spirt of judicial deference espoused in Mesa and Egbert.

Consistent with this conclusion, the Court has uniformly held in the context of implied statutory rights of

action that the courts should hesitate before implying a

right of action for remedies not specified in the statute.

As this Court has explained, the cases concerning implication of private rights of action address “whether a private remedy is implicit in a statute not expressly providing one.” Cort v. Ash, 422 U.S. 66, 78 (1975) (emphasis

added). Accord Merrill, Lynch, Pierce, Fenner & Smith

v. Curran, 456 U.S. 353, 373 n.51 (1982); id. at 396 (Powell, J., dissenting) (“In determining whether an ‘implied’

cause of action exists under a federal statute, ‘what must

be ultimately determined is whether Congress intended

to create the private remedy asserted.’” (quoting

Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S.

11, 15-16 (1979))) (emphasis added); Touche Ross & Co.

v. Redington, 442 U.S. 560, 562 (1979); Cannon, 441 U.S.

at 688 n.9. In answering that question, the Supreme

Court has instructed that the courts should place primary emphasis on whether “there [is] any indication of

legislative intent, explicit or implicit, either to create

such a remedy or to deny one.” Cort, 442 U.S. at 78.

These cases thus support the argument that the question whether a law creates a private right of action is the

same as the question whether it creates a private remedy. When a law provides that a party is entitled to

“compensation,” the legislature’s intent to create a private remedy is found in the law’s text, and there is no

14

need to consider whether “a private remedy is implicit”

in the law; the private remedy is explicit and the law

thus creates a private right of action. But even if the

Fifth Circuit were right in regarding the remedy and the

right of action as distinct (and this Court in First English was wrong in treating them the same), these cases

show that this Court’s hesitancy to find a private right

of action in a statute that does not specify one has no application to laws that themselves specify the legislature’s preferred remedy. Among the Supreme Court’s

“legion of implied-right-of-action cases,” see Sandoval,

532 U.S. at 287, we know of none declining to find a private right of action to seek a particular remedy where

the law in question mandated that remedy.

In the Bivens context as well, when this Court has

said that the courts should hesitate to recognize a private right of action for violation of particular constitutional provisions, it has done so because, in its view, the

creation of a remedy is generally the prerogative of Congress. See, e.g., Egbert, 142 S. Ct. at 1803 (“While our

cases describe two steps, those steps often resolve to a

single question: whether there is any reason to thing

that Congress might be better equipped to create a damages remedy.” (emphasis added)); Mesa, 140 S. Ct. at 737

(“The most important question is whether Congress or

the courts should create a damages remedy.” (emphasis

added)); Ziglar, 582 U.S. at 135 (“The question is ‘who

should decide’ whether to provide for a damages remedy,

Congress or the courts?” (emphasis added) (quoting

Bush v. Lucas, 462 U.S. 367, 380 (1983))). These and

many similar passages suggest that the Court regards

the issue of a remedy and the issue of a right of action to

enforce that remedy as the same, as argued in Part I.

But, again, even if the two concepts are different, as the

Fifth Circuit appears to insist, this Court’s recent

15

Bivens decisions establish that the reasons for hesitating

before recognizing a right of action for a given remedy

do not apply when the constitutional provision in question expressly creates the remedy being sought.

III. THE HISTORICAL PEDIGREE OF DAMAGES REMEDIES

FOR CONSTITUTIONAL VIOLATIONS

Finally, even if this Court were to consider recent

Bivens cases as relevant to this case despite the Taking

Clause’s express reference to the remedy of compensation, the Court should not extend the rationale of these

cases to reverse First English. As already noted, this

Court has defended its new approach to the Bivens issue

by analogy to its new approach to the implication of private rights of actions under statutes. Implying rights of

action under statutes is problematic, according to the

Court, because doing so upsets the legislative compromise. The legislature’s omission of private rights of action may well have reflected “a compromise that the

available remedies would be limited—that full compliance was neither desired nor desirable.” Fallon, Jr., et

al., Hart & Wechsler’s The Federal Courts and the Federal System at 742 (citing Easterbrook, Forward: The

Court and the Economic System, 98 Harv. L. Rev. 4, 4551 (1984)). But this rationale for declining to recognize

private rights of action under statutes supports a different approach to recognizing damages remedies for the

violation of constitutional rights.

The “inapplicability” of the Court’s new approach

“to the question of remedies for constitutional violations[] was … acknowledged from its inception.”

Vázquez, 96 Notre Dame L. Rev. at 1926. The intellectual seeds of the Court’s current approach to the implication of rights of action under statutes were sown in

Justice Powell’s dissent in Cannon, 441 U.S. 677. While

16

Justice Powell agreed with the Court’s current understanding that “federal courts should not assume the legislative role” when “Congress chooses not the provide a

private civil remedy,” at the same time he acknowledged

the question is “significantly different” for “private actions” that “could be implied directly from particular

provisions of the Constitution,” because this Court possesses a “traditional responsibility to safeguard constitutionally protected rights.” Cannon, 441 U.S. at 733

n.3.

As to those “constitutionally protected rights,” we

do not typically assume that the omission of express

remedies reflected the Framers’ view that full compliance was neither desired nor desirable. To the contrary,

“we usually assume that the Framers intended the

rights guaranteed by [the Bill of Rights] to be generally

effective.” Vázquez, 96 Notre Dame L. Rev. at 1927 (citing Fallon, Jr. & Meltzer, New Law, Non-Retroactivity,

and Constitutional Remedies, 104 Harv. L. Rev. 1731,

1787-1791 (1991)); Knick, 139 S. Ct. at 2169 (the prohibition against uncompensated takings cannot be “relegate[d] to the status of a poor relation among the provisions of the Bill of Rights.”). Thus, when Justice Powell

noted that in light of the need to “safeguard constitutionally protected rights” this Court has a “freer hand” to

exercise “greater judicial creativity with respect to implied constitutional causes of action,” Cannon, 441 U.S.

at 733 n.3, he was echoing Thomas Jefferson’s famous

pre-Marbury defense of the Bill of Rights as a “‘legal

check which it puts in the hands of the judiciary.’”

Vázquez, 96 Notre Dame Law Rev. at 1927-1928 (quoting Maier, Ratification: The People Debate the Constitution, 1787-1788, at 455 (2010)). Which is to say, recognizing that the courts can and should enforce the Takings

Clause through suits for monetary relief is consistent

17

with the Founder’s original intention, not a defunct “ancien regime.” Mesa, 140 S. Ct. at 741 (quoting Ziglar,

582 U.S. at 131).

Recognizing a cause of action under the Takings

Clause would not “interfere with the legislative process”

or “arrogate legislative power” in the manner Judge

Higginbotham lamented. Pet. Supp. App. 56a; Cannon,

441 U.S. at 733 n.3. Since at least Sandoval, Congress

has been aware that this Court prefers clear textual evidence before “finding” a private right of action. Against

that backdrop, Congress’s choice now to omit a private

right of action in the words of a given statute can fairly

be understood as reflecting its intent that such an action

not be judicially recognized or created. But the same

cannot be said of the Bill of Rights. “We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago,” let alone

on the Framers acting over 200 years ago. Tanzin v.

Tanvir, 141 S. Ct. 486, 493 (2020). Indeed, if the goal of

Sandoval’s “mode of analysis” is fidelity to the original

intent underlying a given provision like the Takings

Clause, then the Court should look to the “Framers’ expectations regarding the remedies that would be available to give efficacy to the constitutional rights they were

adopting.” Vázquez, 96 Notre Dame L. Rev. at 1928.

And the fact is, the prevailing expectation when the Takings Clause was ratified was that causes of action were

generally available to seek compensation for governmental violations of the Constitution.

Specifically, “[t]he Framers adopted the Constitution’s rights-conferring provisions”—including the Takings Clause—against the backdrop of an existing system

of remedies under the common law and equity.”

Vázquez, 96 Notre Dame L. Rev. at 1928. As this Court

has recognized, “[i]n the early Republic, ‘an array of

18

writs … allowed individuals to test the legality of government conduct by filing suit against government officials’ for money damages ‘payable by the officer.’ These

common-law causes of action remained available

through the 19th century and into the 20th.” Tanzin, 141

S. Ct. at 491 (quoting Pfander & Hunt, Public Wrongs

and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev.

1862, 1871-1875 (2010)).3

Scholars are in accord, noting that victims of myriad

constitutional injuries (including property-related injuries, e.g., trespass) could bring claims against both federal and state officials. E.g., Sisk, Recovering the Tort

Remedy for Federal Official Wrongdoing, 96 Notre

Dame L. Rev. 1789, 1792-1793 (2021); Vladeck, The Inconsistent Originalism of Judge-Made Remedies

Against Federal Officers, 96 Notre Dame L. Rev. 1869,

1880 (2021); Vladeck, The Disingenuous Demise and

Death of Bivens, 2019-2020 Cato Sup. Ct. Rev. 263, 267;

3

This observation (and Bivens, and the common law history

that follows) pertains to suits against officials, whereas here petitioners sued the state. As relevant here, the main difference between actions against government officials and their governments

is the latter’s sovereign immunity. See Ex Parte Young, 209 U.S.

123, 163 (1908). In light of the Taking Clause’s express mandate to

provide “just compensation,” it would appear that a waiver of state

sovereign immunity was implicit in the constitutional plan. Cf.

PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021)

(no “offen[se] to state sovereignty” when “the States consented at

the founding to the exercise of federal eminent domain power.”).

Regardless, as Judge Oldham explained, “the State’s decision to remove obviously constitutes a waiver of its sovereign immunity.”

Pet. Supp. App. 72a. Petitioners do not concede whether a state

may ever invoke sovereign immunity to defeat a Takings Clause

claim, and in light of Texas’ waiver there is no need to consider that

question here.

19

Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77, 99

(1997).

And an array of cases from before and during the

Founding Era confirm the basic assumption that injuries

implied a remedy in the form of compensation from government actors. For example, in the colonial era, English common law provided rights of action against military and government officials whose tortious conduct exceeded official authority. See Vázquez & Vladeck, State

Law, the Westfall Act, and the Nature of the Bivens

Question, 161 U. Pa. L. Rev. 509, 537-539 (2013); Jaffe,

Suits Against Government and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 1-2 (1963). As reflected in a

prominent treatise on the British constitution, a key element of the British rule of law was “the right of individuals to mount common-law claims against government

officials who were held personally accountable for their

actions unless able to justify them in accordance with the

law of the land.” Pfander, Dicey’s Nightmare: An Essay

on the Rule of Law, 107 Cal. L. Rev. 737, 744 (2019) (describing Dicey, Introduction to the Study of the Law of

the Constitution (10th ed. 1959)).

As one noteworthy example, Entick v. Carrington,

(1765) 95 Eng. Rep. 807 (KB)—a “monument of English

freedom” with which “every American statesman, during our revolutionary and formative period as a nation,

was undoubtedly familiar,” Boyd v. United States, 116

U.S. 616-626 (1886)—was a trespass action against officials who conducted an unlawful search and seizure. The

case is today celebrated for announcing limits on

searches and inspiring the Fourth Amendment, but it

also reveals that actions against the government to remedy constitutional wrongs—indeed, wrongs related to

property—was so firmly entrenched in the pre-

20

revolutionary period that it went unquestioned in the

1765 decision.4

This tradition carried on in the Early Republic.

“From the beginning of the nation’s history, federal (and

state) officials have been subject to common law suits as

if they were private individuals, just as English officials

were at the time of the Founding.” Vázquez & Vladeck,

161 U. Pa. L. Rev. at 531; see also Pfander, Constitutional Torts and the War on Terror 6 (2017). It was wellaccepted in the Nation’s earliest years that non-statutory remedies were available, in both state and federal

courts, when a federal or state official transgressed the

Constitution or federal statutes while carrying out his

official duties. These cases spanned a wide range, including: a postal official sued for malicious prosecution, Merriam v. Mitchell, 13 Me. 439 (1836); federal customs

agents sued for wrongful seizures of vessels and their

cargo, Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818); Imlay v. Sands, 1 Cai. 566 (N.Y. Sup. Ct. 1804); revenue

collectors sued for demanding unlawful custom duties,

Kidd v. Swartwout, 14 F. Cas. 457 (C.C.S.D.N.Y. 1843)

4

There were several such cases in the pre-revolutionary period, providing remedies against officers in their personal capacity

for a variety of unlawful official acts. See, e.g., Wilkes v. Wood,

(1763) 98 Eng. Rep. 489 (KB); Chambers v. Robinson, (1726) 93 Eng.

Rep. 787 (KB). Damages were generally recognized for injuries to

liberty caused by the unauthorized or excessive use of official

power. In Huckle v. Money, (1763) 95 Eng. Rep. 768 (KB), for example, a printer was awarded £300 in damages for trespass, assault,

and imprisonment after he was taken into custody for several hours

by a King’s messenger on suspicion of having printed an allegedly

seditious pamphlet. Id. at 768. Rejecting the argument that damages were excessive because the plaintiff was treated well and confined only for a few hours, the court held the damages were justified

because “it was a most daring public attack made upon the liberty

of the subject.” Id. at 769.

21

(No. 7,756); and a federal military officer sued for attempting to collect a fine assessed by a court martial that

did not possess jurisdiction over the plaintiff, Wise v.

Withers, 7 U.S. (3 Cranch) 331, 337 (1806).

In contrast to Mesa’s and Egbert’s assumption that

implying a cause of action in the absence of explicit legislative text necessarily usurps legislative power, Congress did not perceive these Founding-era remedies as

intruding upon its lawmaking sphere. Rather, Congress

would simply exercise its legislative prerogative in deciding whether to indemnify the officer after judgment

entered. Typically, Congress would grant indemnity if

it determined the officer acted in good faith, and denied

indemnity otherwise.5 Pfander & Hunt, 85 N.Y.U. L.

Rev. at 1866-1868. But what Congress did not do is admonish Courts for hearing cases awarding remedies in

violation of its supposed plenary legislative prerogative

and the separation of powers.

To be sure, these cases—and the long tradition of

damages actions to seek compensation from the government that they represent—arose prior this Court’s rejecting of the concept of general common law in Erie

5

For example, in the foundational case Little v. Barreme, 6

U.S. (2 Cranch) 170, 178 (1804) (Marshall, C.J.), Captain Little—a

U.S. Navy officer and commander of a frigate during the Quasi-War

with France—was ordered by the Secretary of the Navy to seize

American vessels traveling “to or from” French ports, pursuant to

the Non-Intercourse Act. Captain Little did as he was instructed

and seized the Flying Fish, a vessel caught sailing from a French

port. The problem was Captain Little’s orders exceeded the Act,

which only permitted seizure of vessels approaching a French port,

not leaving one. This Court upheld a claim of damages against Captain Little notwithstanding his good faith reliance on the Secretary’s orders. Congress, in turn, indemnified him. Act for the Relief

of George Little, Priv. L. No. 09-02, ch. 4, 6 Stat. 63 (1807).

22

Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Unsurprisingly, then, these pre-Erie cases often did not focus

on the particular source of liability, whether it be constitutional, federal, state, or something in between. Hill,

Constitutional Remedies, 69 Colum. L. Rev. 1109, 1124

& nn.59-63 (1969); Kramer, The Lawmaking Power of the

Federal Courts, 12 Pace L. Rev. 263, 281 (1992).6 PostErie, it was uncritically assumed these common law actions were grounded in state law. That assumption, in

turn, framed the question in Bivens as asking whether

to recognize a supplementary federal remedy (rather

than asking whether to elevate the pre-Erie common

law remedy to federal status).7 Framed as such, Bivens’

6

Perhaps because the question was not then deemed essential

in the pre-Erie era, this Court never specifically “held that rights

against the officer based on [unconstitutional or statute-violating]

behavior must be sought under state law.” Hill, 69 Colum. L. Rev.

at 1124. But in some cases, this Court described the right at issue

in terms that suggested the right originated in the federal Constitution. E.g., Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851) (allowing damages for unlawful seizure against U.S. Army officer for

the forcible taking of the plaintiff’s property and for compelling him

to travel with a campaign of the Mexican-American war). And more

generally, this Court did not limit the officer’s liability to that provided under state law. E.g., Philadelphia Co. v. Stimson, 223 U.S.

605, 619-620 (1912); Belknap v. Schild, 161 U.S. 10, 18 (1896).

7

Congress soon thereafter complemented Bivens by enacting

the Federal Tort Claims Act, see 28 U.S.C. § 2680(h); Carlson v.

Green, 446 U.S. 14, 19-20 & n.5 (1980)); Pfander & Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98

Geo. L.J. 117, 133 (2009) (noting that Congress rejected language

proposed by the Department of Justice that “would have eliminated

the Bivens action altogether in favor of suits against the government for constitutional violations”). When it subsequently enacted

the Westfall Act, it explicitly preserved suits against officers in

their individual capacities if plaintiffs allege “a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A); H.R. Rep.

No. 100-700, at 6 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5950

23

supplementary federal action was left vulnerable to the

charge of raw judicial lawmaking—rather than, more accurately, as keeping with a long tradition. Vázquez, 96

Notre Dame L. Rev. at 1932. Indeed, that is what happened: this Court has declined to extend the Bivens remedy beyond the contexts in which it has already found it

to be available. Egbert, 142 S. Ct. at 1809.

But the history remains. The Takings Clause’s express conferral of a specific remedy text obviates resorting to that history (or to implied-right-of-action jurisprudence generally). But, if the Court is to look to Bivens

and its progeny for guidance in interpreting whether

suits may be brought directly under the Takings Clause,

the Court should appreciate the significance of the fact

that the Framers who wrote that clause did so with full

knowledge and expectation that the courts would hear

claims—and recognize traditional remedies—when

plaintiffs seek compensation for governmental violations

of constitutional rights, including with respect to property-related claims.

This Court’s current Bivens jurisprudence reflects a

preference for enforcing constitutional rights through

suits for prospective relief. See Schwartz et al., Going

Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 Notre Dame L. Rev. 1835,

1839 (2021) (noting that Ziglar reflects the Court’s preference for injunctive relief over damages to address

(stating that the Act “would not affect the liability of victims of constitutional torts to seek personal redress from Federal employees

who allegedly violate their Constitutional rights”). In light of its

text and legislative history, the Westfall Act should be understood

to have endorsed a scope of Bivens that is at least as expansive as

its common law precursors. Vázquez & Vladeck, 161 U. Pa. L. Rev. at

514.

24

unconstitutional policies); Fallon, Jr., Constitutional

Remedies: In One Era and Out the Other, 136 Harv. L.

Rev. 1300, 1356-1357 (2023) (citing Bivens as an example

of how this Court is more willing to recognized implied

jurisdiction than to award equitable relief to uphold nonstatutory damages remedies). This preference is in

some tension with the long tradition summarized here of

awarding monetary relief for constitutional rights. But,

more importantly, a preference for prospective injunctive relief is wholly inappropriate for the Takings

Clause, as that clause contains an express preference for

monetary relief. To extend the preference for prospective relief to the Takings Clause would entirely re-write

the provision and subject states to a more intrusive remedy than the Framers devised. The Takings Clause diverges from other constitutional provisions by expressly

giving the state the option of taking property for public

use if it grants compensation. The historical argument

summarized in this Part thus reinforces the arguments

of Parts I and II that this Court’s recent approach to the

Bivens question is wholly inapplicable to a constitutional

provision like the Takings Clause that specifically establishes a compensatory remedy.

Deference to the “compromise” struck by the authors of the Takings Clause is thus consistent with inferring a direct federal cause of action for uncompensated

(and thus unconstitutional) takings—not as a novel judicial creation, but consistent with a tradition of enforcing

the Constitution through damages actions that is centuries old, Vázquez, 96 Notre Dame L. Rev. at 1927-1929,

and with respect to the Takings Clause, an express determination by the Framers that the compensatory remedy is the preferred remedy.

25

CONCLUSION

The Fifth Circuit deprived petitioners of their right

to seek compensation under the Takings Clause. It did

so in defiance of this Court’s holding in First English

that “suits” for just compensation are “‘founded upon

the Constitution of the United States.’” 482 U.S. at 315

(quoting Jacobs, 290 U.S. at 16). And it did so, at least

in part, because Mesa and Egbert command that courts

be cautious before inventing a new cause of action. But

the Court’s recent Bivens cases have no application here,

where the Takings Clause contains its own remedy,

strikes its own balance, and evinces a preference for a

compensatory remedy over any other remedy for unconstitutional takings. Moreover, as the history recounted

above demonstrates, there is nothing novel about suing

the government for compensation to remedy a wrong,

including property-related wrongs. It is a longstanding

tradition dating to the first days of our Republic—a tradition understood by the Framers when they wrote the

constitutional command that “private property” cannot

be “taken for public use, without just compensation.”

26

Respectfully submitted.

FELICIA H. ELLSWORTH

Counsel of Record

ERIC L. HAWKINS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

felicia.ellsworth@wilmerhale.com

NOVEMBER 2023