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

Supreme Court briefNov 20, 2023

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No. 22-913

IN THE

Supreme Court of the United States

RICHARD DEVILLIER, ET AL.,

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR AMICI CURIAE

NATIONAL ASSOCIATION OF REALTORS®,

AMERICAN PROPERTY OWNERS

ALLIANCE, AND TEXAS REALTORS® IN

SUPPORT OF PETITIONERS

BRINTON LUCAS

Counsel of Record

BRETT A. SHUMATE

WILLIAM J. STRENCH

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

blucas@jonesday.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 2

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

Constitutional JustCompensation Actions Long

Predate The Bivens Regime .................. 4

The Bivens Regime Sharply

Contrasts With Constitutional

Just-Compensation Actions ................ 10

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

TABLE OF AUTHORITIES

Page(s)

CASES

Barron v. Mayor & City Council of

Baltimore,

32 U.S. (7 Pet.) 243 (1833) ..................................... 4

Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics,

409 F.2d 718 (5th Cir. 1969) ................................ 14

Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics,

403 U.S. 388 (1971) ........................... 2, 3, 4, 10—16

Blanchard v. City of Kansas,

16 F. 444 (C.C.W.D. Mo. 1883) .............................. 8

Callender v. Marsh,

18 Mass. 418 (1823)................................................ 6

Carlson v. Green,

446 U.S. 14 (1980) .................................... 11, 15, 16

Chicago, Burlington & Quincy R.R. Co.

v. Chicago,

166 U.S. 226 (1897) ................................................ 5

City of Denver v. Bayer,

2 P. 6 (Colo. 1883)................................................... 7

City of Elgin v. Eaton,

83 Ill. 535 (1876)..................................................... 8

Davis v. Passman,

442 U.S. 228 (1979) .............................................. 11

Egbert v. Boule,

596 U.S. 482 (2022) ........................................ 12, 13

iii

Ex Parte Young,

209 U.S. 123 (1908) .............................................. 15

First English Evangelical Lutheran

Church v. County of Los Angeles,

482 U.S. 304 (1987) .............................................. 16

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ................................ 10, 12, 13

J.I. Case Co. v. Borak,

377 U.S. 426 (1964) .............................................. 12

Jacobs v. United States,

63 F.2d 326 (5th Cir. 1933) .................................... 9

Jacobs v. United States,

290 U.S. 13 (1933) ......................... 2, 8—10, 14—16

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ....................................... 5—8

Kohl v. United States,

91 U.S. 367 (1875) .................................................. 5

Langford v. United States,

101 U.S. 341 (1879) ................................................ 5

Mims v. Arrow Fin. Servs., LLC,

565 U.S. 368 (2012) ................................................ 5

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893) .............................................. 14

Nat’l Mut. Ins. Co. v. Tidewater Transfer Co.,

337 U.S. 582 (1949) ................................................ 9

People ex rel. Utley v. Hayden,

6 Hill 359 (N.Y. Sup. Ct. 1844) .............................. 6

Proprietors of Charles River Bridge v.

Proprietors of Warren Bridge,

36 U.S. (11 Pet.) 420 (1837) ................................. 14

Stevens v. Proprietors of the Middlesex

Canal,

12 Mass. 466 (1815)................................................ 6

United States v. Elkhorn Mining Co.,

553 U.S. 1 (2008) .................................................. 15

United States v. Mitchell,

463 U.S. 206 (1983) ................................................ 4

United States v. Testan,

424 U.S. 392 (1976) ........................................ 10, 15

Ziglar v. Abbasi,

582 U.S. 120 (2017) .............................................. 11

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. IV ............................. 10, 11, 14, 15

U.S. Const. amend. V ....................2—5, 8—11, 13—16

U.S. Const. amend. VIII ............................................ 11

U.S. Const. amend. XIV .............................................. 5

42 U.S.C. § 1983 ........................................................ 11

OTHER AUTHORITIES

William Baude, Rethinking the Federal

Eminent Domain Power,

122 YALE L.J. 1738 (2013)...................................... 5

Maureen E. Brady, The Damagings

Clauses, 104 VA. L. REV. 341 (2018) ...................... 7

Robert Brauneis, The First

Constitutional Tort: The Remedial

Revolution in Nineteenth-Century

State Just Compensation Law,

52 VAND. L. REV. 57 (1999) .......................... 6—8, 14

James W. Ely, Jr., “That Due

Satisfaction May Be Made:” The Fifth

Amendment and the Origins of the

Compensation Principle,

36 AM. J. LEGAL. HIST. 1 (1992) ............................. 6

2 James Kent, COMMENTARIES ON

AMERICAN LAW (3d ed. 1836) ................................. 7

Remedies Against the United States and

Its Officials, 70 HARV. L. REV. 827

(1957) .................................................................... 10

William Michael Treanor, The Original

Understanding of the Takings Clause and

the Political Process,

95 COLUM. L. REV. 782 (1995) ............................ 4, 5

INTEREST OF AMICI CURIAE 1

The National Association of REALTORS® is a

national trade association, representing 1.53 million

members, including its institutes, societies, and

councils involved in all aspects of the residential and

commercial real estate industries. Members are

residential and commercial brokers, salespeople,

property managers, appraisers, counselors, and others

engaged in the real estate industry. Members belong

to one or more of the approximately 1,200 local and 54

state and territory associations of REALTORS®, and

support private property rights, including the right to

own, use, and transfer real property. REALTORS®

adhere to a strict Code of Ethics, setting them apart

from other real estate professionals for their

commitment to ethical real estate business practices.

The American Property Owners Alliance is a

nonprofit advocacy organization dedicated to

representing the rights and interests of property

owners throughout the country.

Texas REALTORS® is a statewide trade association

made up of approximately 70 local associations and

over

160,000

members,

including

153,000

REALTORS®, located across the state. Texas

REALTORS® represents REALTORS®’ interests and

advocates for private property rights throughout the

state.

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

and no person other than amici curiae and their counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

Amici submit this brief because the decision below

provides the government with a roadmap to take

private property without providing just compensation.

That practice threatens to eviscerate the real property

interests of homeowners as well as the industries that

drive homeownership nationwide. In light of Texas’s

misguided assertion that petitioners are seeking the

judicial creation of a cause of action for just

compensation, amici write to set the record straight.

SUMMARY OF ARGUMENT

The Takings Clause guarantees that “private

property” shall not “be taken for public use, without

just compensation.” U.S. Const. amend. V. By

promising “just compensation” in the event of a taking,

this constitutional provision ensures property owners

may seek this remedy in court without a legislature’s

blessing.

Both Texas and the decision below

nevertheless analogize this text-based cause of action

to the implied rights of action of Bivens v. Six

Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and its progeny. But

history shows that just-compensation suits have a

different pedigree from the implied constitutional

torts fashioned in the 1970s.

Although there was little need for federal courts to

address whether the Takings Clause provided a cause

of action for just compensation for much of the 19th

Century, state courts came to this conclusion as to

analogous provisions in their own state constitutions

beginning in the 1870s. By the 1930s, this Court had

joined their ranks, holding that actions “to recover just

compensation” are “founded upon the Constitution.”

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

By contrast, in creating implied constitutional torts

to enforce other constitutional provisions during the

1970s, this Court did not draw on any reference to a

remedy in the constitutional text. Rather, it simply

assumed that allowing damages for violations of

constitutional rights would advance the Constitution’s

substantive guarantees.

As this Court has since recognized, that is a

lawmaking enterprise off limits to federal courts, as

nothing about a general constitutional prohibition

indicates that it should be enforced by a particular

remedy. The Takings Clause, by contrast, already

specifies the appropriate relief for a taking of

property—“just compensation”—a fact that critics of

the Bivens regime at the time recognized. This Court

can therefore adhere to its longstanding precedents on

the Takings Clause without extending Bivens an inch.

ARGUMENT

The Takings Clause provides that “private

property” shall not “be taken for public use, without

just compensation.” U.S. Const., amend. V. By

commanding the payment of “just compensation” if a

taking occurs, the Clause authorizes a cause of action

to pursue that relief. The Fifth Circuit and Texas

nevertheless compare that straightforward reading to

the abandoned practice of creating new “causes of

action in a common-law manner” exemplified by

Bivens. Br. in Opp. 15; see Pet. App. 2a n.1 (“‘A federal

court’s authority to recognize a damages remedy must

rest … on a statute enacted by Congress.’”); Pet. Supp.

App. 51a (Higginson, J., concurring in denial of

rehearing en banc) (“This case is about whether there

is an implied cause of action”).

History says otherwise. The tradition of justcompensation suits intersects with the experiment of

implied constitutional torts only as a point of contrast,

and the bogeyman of Bivens should not obscure what

the Constitution requires.

A. Constitutional Just-Compensation Actions

Long Predate The Bivens Regime

Recognition that the Takings Clause provides a

cause of action for just compensation was not

something cooked up in the 1970s. Rather, that form

of relief dates from at least a century earlier, when

state courts in the 1870s held that the Clause’s state

analogs independently provided a mechanism to

pursue just compensation in court. And this Court

followed suit decades before Bivens created damages

actions to enforce other constitutional rights.

1. The question whether the Takings Clause itself

provides a cause of action was not adjudicated until

after the Civil War. That was not because this section

of the Bill of Rights was a dead letter upon ratification,

but because just-compensation claims against the

federal government were instead addressed by

Congress. See United States v. Mitchell, 463 U.S. 206,

212-14 (1983); William Michael Treanor, The Original

Understanding of the Takings Clause and the Political

Process, 95 COLUM. L. REV. 782, 794 n.69 (1995).

Federal courts, by contrast, had little occasion to

resolve cases involving the Takings Clause during

much of the 19th Century. For one thing, this Court

initially held that the Clause was “not applicable to

the legislation of the states” and thus “solely” relevant

to the federal government. Barron v. Mayor & City

Council of Baltimore, 32 U.S. (7 Pet.) 243, 250-51

(1833). It was not until the tail end of the 19th

Century that this Court recognized that the Takings

Clause had been incorporated against the states

through the Fourteenth Amendment.

Chicago,

Burlington & Quincy R.R. Co. v. Chicago, 166 U.S.

226, 238-41 (1897).

For its part, the federal government did not exercise

eminent domain within a state’s borders “until after

the Civil War.” Treanor, supra, at 794 n.69. Rather,

it “relied on the states to condemn the property that

would be used by the federal government.” Id.; see

William Baude, Rethinking the Federal Eminent

Domain Power, 122 YALE L.J. 1738, 1761-91 (2013)

(discussing this history). A federal eminent domain

power was not recognized until the 1870s. Kohl v.

United States, 91 U.S. 367 (1875).

Moreover, until the Tucker Act’s passage in 1887,

there was no federal statute waiving the United

States’ sovereign immunity and providing jurisdiction

over claims against the federal government for

uncompensated takings. Knick v. Township of Scott,

139 S. Ct. 2162, 2176 (2019); see Langford v. United

States, 101 U.S. 341, 343 (1879) (“It is to be regretted

that Congress has made no provision by any general

law for ascertaining and paying the just

compensation” required in the event of a taking.). Nor

did Congress provide for general federal-question

jurisdiction until 1875. Mims v. Arrow Fin. Servs.,

LLC, 565 U.S. 368, 377 (2012). Given all this, it would

have been surprising for federal courts to have

addressed the cause-of-action question here during the

first century of the Republic.

2. Rather, the first tribunals to recognize that a

constitutional guarantee of just compensation came

with a cause of action were state courts interpreting

state constitutions in the 1870s. See Knick, 139 S. Ct.

at 2176; Robert Brauneis, The First Constitutional

Tort: The Remedial Revolution in Nineteenth-Century

State Just Compensation Law, 52 VAND. L. REV. 57,

109-32 (1999). Before then, state courts had little

reason to address this question, as other forms of relief

were readily available.

For starters, state legislatures would frequently

include procedures to obtain just compensation in the

acts that authorized the takings. See Knick, 139 S. Ct.

at 2176; James W. Ely, Jr., “That Due Satisfaction

May Be Made:” The Fifth Amendment and the Origins

of the Compensation Principle, 36 AM. J. LEGAL. HIST.

1, 12-15 (1992); see, e.g., Stevens v. Proprietors of the

Middlesex Canal, 12 Mass. 466, 468 (1815). If a state

effectively took property but refused to comply with

the necessary condemnation procedures, a court could

issue a writ of mandamus compelling it to do so.

Brauneis, supra, at 69-70; see, e.g., People ex rel. Utley

v. Hayden, 6 Hill 359, 361-62 (N.Y. Sup. Ct. 1844).

When no statutory procedures were available,

aggrieved property owners could enforce state takings

clauses by bringing common law trespass suits against

those who had taken their property. If the defendant

responded that the taking had been authorized by a

statute or ordinance, the plaintiff would reply that the

law was unconstitutional. Knick, 139 S. Ct. at 217576; see, e.g., Callender v. Marsh, 18 Mass. 418, 437-38

(1823).

Either way, the state complied with its

constitutional duty “to provide some tribunal for the

assessment of the compensation or indemnity, before

which each party may meet and discuss their claims

on equal terms.” 2 James Kent, COMMENTARIES ON

AMERICAN LAW 339 n.b (3d ed. 1836). As Chancellor

Kent emphasized, “[a] provision for compensation is a

necessary attendant on the due and constitutional

exercise of the power of the law-giver to deprive an

individual of his property without his consent.” Id. at

339.

In the 1870s, however, states began to adopt

“damagings clauses”—amendments to their takings

clauses providing that property “‘shall not be taken or

damaged for public use without just compensation.’”

Maureen E. Brady, The Damagings Clauses, 104 VA.

L. REV. 341, 356 (2018). Various state statutory

compensation procedures, however, still limited relief

“to cases in which property had been taken.” Brauneis,

supra, at 120. Moreover, the only relief available to a

property owner in a common law trespass action—

namely, “retrospective damages” and “an injunction

ejecting the government from his property going

forward,” Knick, 139 S. Ct at 2176—was inadequate

when it came to government actions that had caused

permanent property damage, such as the construction

and operation of railroad on an abutting street. See

Brauneis, supra, at 97-100, 133; see, e.g., City of

Denver v. Bayer, 2 P. 6, 15 (Colo. 1883) (“Unlike actions

for trespass to realty, where the plaintiff can only

recover for the injury done up to the commencement of

the suit; in suits of this kind a single recovery may be

had for the whole damage to result from the act, the

injury being continuing and permanent.”).

These amendments to state takings clauses

therefore “forced many courts to consider the basis” of

“non-statutory actions” to enforce guarantees of just

compensation “for the first time.” Brauneis, supra, at

120. And in doing so, state courts began “to hold that

just compensation provisions were themselves the

source of property owners’ rights of action for

damages.” Id. at 109.

In City of Elgin v. Eaton, 83 Ill. 535 (1876), for

instance, the Supreme Court of Illinois ruled that the

state’s amended takings clause provided a cause of

action against a city to recover for property damage

caused by street grading. Id. at 536-37. As the court

explained, “the right to recover damages was given by

the constitution” and “can not be altered by

subsequent legislation.” Id.

Riding circuit, Justice Miller reached a similar

conclusion in construing Missouri’s takings clause. He

reasoned that “since the positive declaration of the

constitution is that private property shall not be taken

or damaged for public use without just compensation,”

“the law shall compel” an entity responsible for a

taking “to make that just compensation.” Blanchard

v. City of Kansas, 16 F. 444, 446 (C.C.W.D. Mo. 1883).

3. After “Congress enabled property owners to

obtain compensation for takings in federal court” by

passing “the Tucker Act in 1887,” this Court “joined

the state courts in holding that the compensation

remedy is required by the Takings Clause itself.”

Knick, 139 S. Ct. at 2176. Specifically, in 1933, it held

in Jacobs that lawsuits seeking “just compensation for

property taken” are “founded upon the Constitution of

the United States.” 290 U.S. at 16.

When a dam constructed by the federal government

flooded their farms, the petitioners in Jacobs sued the

United States under the Tucker Act “to recover

compensation for the property taken.” Id. at 15. The

Fifth Circuit ruled that because “no right of action

existed” under the statutes authorizing the dam’s

construction, the property owners could only recover

under a theory of “implied contract.” 63 F.2d 326, 327

(5th Cir. 1933). And because the United States had

not waived sovereign immunity for interest on

implied-contract claims, the Fifth Circuit concluded

that the petitioners could not recover interest on their

losses. Id.

This Court reversed. Writing for a unanimous

Court, Chief Justice Hughes explained that the

property owners could pursue their suits without

relying on either “[s]tatutory recognition” or a theory

of “implied contract.” 290 U.S. at 16. That was

because their “suits were based on the right to recover

just compensation for property taken by the United

States for public use in the exercise of its power of

eminent domain” and thus “rested upon the Fifth

Amendment.” Id. And as the suits were “brought to

enforce the constitutional right to just compensation,”

the petitioners could recover interest notwithstanding

the limits on that remedy for actions “which rested

upon an implied contract.” Id. at 18.

Texas is therefore mistaken in asserting Jacobs

involved “no question of the cause of action.” Br. in

Opp. 19. Because “the Tucker Act simply opens th[e]

courts to plaintiffs already possessed of a cause of

action,” the petitioners could only prevail if another

source of law served that role. Nat’l Mut. Ins. Co. v.

Tidewater Transfer Co., 337 U.S. 582, 594 n.22 (1949).

And because Jacobs ruled that the suits were not

based on a theory of implied contract, the only possible

source of a cause of action was the Constitution itself.

See Remedies Against the United States and Its

Officials, 70 HARV. L. REV. 827, 878 (1957) (noting that

“the language of the Jacobs case indicates that the

fifth amendment creates a right to just compensation,”

as “[t]he only other possible source of a right in these

cases is the Tucker Act itself,” but “its language deals

only with jurisdiction”). Confirming the point, this

Court would later distinguish Jacobs and other “cases

centering in the Just Compensation Clause” from

those analyzing statutory rights of action under the

Tucker Act on the ground that the former “are tied to

the language, purpose, and self-executing aspects of

that constitutional provision.”

United States v.

Testan, 424 U.S. 392, 401 (1976).

B. The Bivens Regime Sharply Contrasts With

Constitutional Just-Compensation Actions

The creation of implied constitutional torts in

Bivens is an entirely different story. Both the history

of Bivens and this Court’s later precedents make clear

that the judicial fashioning of new causes of action to

enforce other constitutional rights has nothing to do

with claims under the Takings Clause.

1. Bivens “broke new ground by holding that a

person claiming to be the victim of an unlawful arrest

and search could bring a Fourth Amendment claim for

damages against the responsible agents even though

no federal statute authorized such a claim.”

Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). Despite

admitting that “the Fourth Amendment does not in so

many words provide for its enforcement by an award

of money damages for the consequences of its

violation,” the Bivens Court held that the Judiciary

could redress a Fourth Amendment violation “through

a particular remedial mechanism normally available

in the federal courts”—“money damages.” 403 U.S. at

396-97. Rather than wait for Congress to create this

action, Bivens flipped the baseline: Provided there

was “no explicit congressional declaration that persons

injured by a federal officer’s violation of the Fourth

Amendment may not recover money damages,” federal

courts were free to “‘use any available remedy to make

good the wrong done.’” Id. It was enough, in Justice

Harlan’s words, to create a cause of action when

“damages are necessary to effectuate” the policy

“underpinning the substantive provisions.” Id. at 402

(Harlan, J., concurring in the judgment).

Over the next decade, the Court twice extended

Bivens to craft new causes of action in other areas of

constitutional law—namely, a sex-discrimination

claim under the Fifth Amendment, Davis v. Passman,

442 U.S. 228 (1979), and an inadequate-prison-care

claim under the Eighth Amendment, Carlson v. Green,

446 U.S. 14 (1980). In a nutshell, the Court held that

damages remedies were available so long as (i) there

was a constitutional violation, (ii) damages could in

theory compensate for it, and (iii) there was no

particular reason why this remedy would be

inappropriate. See Carlson, 446 U.S. at 18-19; Davis,

442 U.S. at 246-47. The default became that damages

were available for any violation of constitutional

rights, with the “possibility that ‘the Court would keep

expanding Bivens until it became the substantial

equivalent of 42 U.S.C. § 1983.’” Ziglar v. Abbasi, 582

U.S. 120, 132 (2017) (plurality op.).

This trio of opinions was the product of “‘the heady

days in which this Court assumed common-law powers

to create causes of action.’” Egbert v. Boule, 596 U.S.

482, 491 (2022). Under “this ancien regime” of the

1960s and 1970s, “the Court assumed it to be a proper

judicial function to provide such remedies as are

necessary to make effective a statute’s purpose” and

therefore would “imply causes of action not explicit in

the statutory text itself.” Hernandez, 140 S. Ct. at 741

(cleaned up); see, e.g., J.I. Case Co. v. Borak, 377 U.S.

426, 433 (1964) (“[I]t is the duty of the courts to be

alert to provide such remedies as are necessary to

make effective the congressional purpose”). “Bivens

extended this practice to claims based on the

Constitution itself.” Hernandez, 140 S. Ct. at 741; see

Bivens, 403 U.S. at 397 (citing Borak).

Since then, this Court has “come ‘to appreciate more

fully the tension between’ judicially created causes of

action and ‘the Constitution’s separation of legislative

and judicial power,’” which is why it “has not implied

additional causes of action under the Constitution” in

the wake of the Bivens trilogy. Egbert, 596 U.S. at 491.

Because “[n]o law pursues its purposes at all costs …

a lawmaking body that enacts a provision that creates

a right or prohibits specified conduct may not wish to

pursue the provision’s purpose to the extent of

authorizing private suits for damages.” Hernandez,

140 S. Ct. at 741-42 (cleaned up). For a court to hold

that “a damages remedy is implied by a provision that

makes no reference to that remedy” therefore “may

upset the careful balance of interests struck by the

lawmakers.” Id. at 742. Indeed, as Justice Harlan

candidly observed in Bivens, in determining “whether

compensatory relief is necessary or appropriate to the

vindication of the interest asserted, … the range of

policy considerations we may take into account is at

least as broad as the range of those a legislature would

consider with respect to an express statutory

authorization of a traditional remedy.” 403 U.S. at

407 (Harlan, J., concurring in the judgment).

2. The “judicially created causes of action” in Bivens

and its extensions, Egbert, 596 U.S. at 491, stand poles

apart from constitutional just-compensation actions.

Unlike implied constitutional torts, the latter suits

raise no separation-of-powers concerns. Because the

Constitution itself specifies that “just compensation”

is required for a taking, U.S. Const., amend. V,

recognizing that the Takings Clause provides a cause

of action to obtain just compensation poses no risk of

the judicial creation of “remedy” for “a provision that

makes no reference to that remedy,” Hernandez, 140

S. Ct. at 741-42.

Nor do courts have to “evaluate a range of policy

considerations at least as broad as the range a

legislature would consider” in concluding that the

Takings Clause provides a mechanism to obtain just

compensation in court. Egbert, 596 U.S. at 491

(cleaned up). Rather, the Constitution has already

settled what the appropriate remedy should be. As

Judge Higginson admitted below, “unlike other

provisions in the Bill of Rights, the Takings Clause

refers to ‘compensation,’” so “[it] may be that an

implied cause of action against the federal government

in the Takings Clause is not ‘implied’ as that term has

been used in the Supreme Court’s post-Bivens

decisions.” Pet. Supp. App. 54a n.1 (Higginson, J.,

concurring in denial of rehearing en banc).

Indeed, this Court has long understood that the

Judiciary, rather than Congress, plays a key role in

ensuring an appropriate remedy for a taking. While

“[t]he legislature may determine what private

property is needed for public purposes”—for “that is

question of a political and legislative character”—“the

question of compensation is judicial,” for “[t]he

constitution has declared that just compensation shall

be paid.” Monongahela Nav. Co. v. United States, 148

U.S. 312, 327 (1893); see Proprietors of Charles River

Bridge v. Proprietors of Warren Bridge, 36 U.S. (11

Pet.) 420, 571 (1837) (explaining that a “legislature”

cannot “constitutionally … assess the amount of

compensation to which the complainants are entitled”

in a “bind[ing]” fashion because they “are entitled to

an adequate compensation for the property taken”).

The history of Bivens confirms that actions under

the Takings Clause are a different animal from

implied constitutional torts. While “the courts and

litigants in Bivens … disagree[d] about whether

individual rights provisions generally (and the Fourth

Amendment in particular) could serve as swords

rather than shields,” they “all agreed on one thing: the

Just Compensation Clause was a sword.” Brauneis,

supra, at 59. For example, in refusing to create a

damages action for Webster Bivens, the Second Circuit

relied on Jacobs to distinguish the Takings Clause

from other constitutional provisions on the ground

that this portion of “the Fifth Amendment [is] selfexecuting, creating a duty to pay upon the government

even in the absence of specific statutory authorization

for suits to enforce the right to just compensation.”

409 F.2d 718, 723 (2d Cir. 1969), rev’d, 403 U.S. 388.

In defending that judgment, the federal government

agreed that the Takings Clause was a special case. As

the Solicitor General explained, Jacobs “held that

under the Fifth Amendment a private party had a

right of action against the government for just

compensation for the taking of his property” based on

“the very language of the Fifth Amendment.” Br. for

the Respondents at 15-16, Bivens, 403 U.S. 388 (No.

301), 1970 WL 122211 (Bivens Resp. Br.). But

“[u]nlike the Fifth Amendment,” he observed, “there is

nothing in the Fourth Amendment that contemplates

any payment of money.” Id. at 16. In fact, the Solicitor

General went so far as to analogize Jacobs to Ex Parte

Young, 209 U.S. 123 (1908), observing that the remedy

in both cases “was essential to protect against

infringement of secured rights.” Bivens Resp. Br. 18. 2

Then-Justice Rehnquist drew the same distinction

in his dissent from the last entry in the Bivens trilogy,

where he condemned “the lack of a textual

constitutional foundation or any precedential or other

historical support” for this line of cases. Carlson, 446

U.S. at 35 (Rehnquist, J., dissenting). Specifically, in

observing that “[n]o similar authority of federal courts

2 The federal government has continued to maintain that the

Takings Clause is distinct from other constitutional provisions.

More recently, it explained that while “this Court has never held

that a provision of the Constitution confers an express or implied

right of action against the United States based merely on a

conclusion that a constitutional provision is ‘money-mandating,’”

this Court has recognized “an express right of action under the

Takings Clause.” U.S. Reply Br. at 20, United States v. Elkhorn

Mining Co., 553 U.S. 1 (2008) (No. 07-308), 2008 WL 727812

(discussing Testan, 424 U.S. 392); see id. at 19 (“Only a very small

number of constitutional provisions can be construed to create

private causes of action of their own force.”).

to award damages for violations of constitutional

rights had ever been recognized prior to Bivens,” he

explained that “[t]he Just Compensation Clause … is

not an exception here because the express language of

that Clause requires that ‘compensation’ be paid for

any governmental taking.” Id. at 43 & n.9. And seven

years later, the same Justice Rehnquist—now serving

as Chief Justice—would author this Court’s decision

in First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), which

confirmed that “it has been established at least since

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

claims for just compensation are grounded in the

Constitution itself.” Id. at 315.

That one of Bivens’s sharpest critics could find it

“clear that it is the Constitution that dictates the

remedy for interference with property rights

amounting to a taking” only underscores that the two

frameworks are independent. Id. at 316 n.9 Because

the Takings Clause by its terms operates “to secure

compensation in the event of otherwise proper

interference amounting to a taking,” id. at 315, there

is no need for this Court to embrace the legislative

“task of evaluating the pros and cons of creating

judicial remedies for particular wrongs” to reverse the

decision below, Carlson, 446 U.S. at 36 (Rehnquist, J.,

dissenting). Rather, this Court can simply adhere to

text, history, and precedent by reaffirming 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.” First English, 482 U.S. at 315

(cleaned up).

CONCLUSION

The judgment below should be reversed.

November 20, 2023

Respectfully submitted,