Amicus Curiae Brief — Richard Devillier, et al., Petitioners v. Texas
Supreme Court briefDec 12, 2023
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No. 22-913
In the Supreme Court of the United States
RICHARD DEVILLIER, ET AL., PETITIONERS
v.
STATE OF TEXAS
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
TODD K IM
Assistant Attorney General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
WILLIAM B. LAZARUS
JOHN L. SMELTZER
ALISA B. KLEIN
KEVIN J. KENNEDY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Fifth Amendment, as incorporated
against the States through the Fourteenth Amendment,
provides a cause of action for compensation or damages
against a State based on the State’s alleged taking of
private property for public use without just compensation.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 4
Argument:
The Fifth Amendment does not confer a cause of action
for compensation or damages................................................. 7
A. This case involves only whether the Fifth
Amendment itself confers a cause of action for
monetary relief .................................................................. 8
B. The Fifth Amendment does not confer a cause of
action for monetary relief ............................................... 10
C. History confirms that the Fifth Amendment does
not itself confer a cause of action ................................... 15
D. Petitioners’ contrary arguments do not support a
cause of action directly under the Fifth Amendment
itself .................................................................................. 23
1. This Court has not held that the Fifth
Amendment provides a cause of action for
compensation or damages ........................................ 23
2. A substantive right to compensation does not
itself provide a judicial action for monetary
relief ........................................................................... 28
3. Petitioners identify no historical recognition of
a Fifth Amendment right of action for
compensation or damages ........................................ 30
4. Petitioners provide no substantial justification
for now reading a cause of action into the Fifth
Amendment ............................................................... 32
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Alden v. Maine, 527 U.S. 706 (1999)...................................... 9
(III)
IV
Cases—Continued:
Page
Alexander v. Sandoval, 532 U.S. 275 (2001) ....................... 21
Arizona v. Navajo Nation, 599 U.S. 555 (2023) ................. 22
Armstrong v. Exceptional Child Ctr., Inc.,
575 U.S. 320 (2015)................................................................ 8
Babbitt v. Youpee, 519 U.S. 234 (1997) ................................ 23
Barron v. Mayor of Baltimore,
32 U.S. (7 Pet.) 243 (1833) .................................................... 8
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) ........................ 10
Block v. North Dakota, 461 U.S. 273 (1983) ....................... 17
Bollman, Ex parte, 8 U.S. (4 Cranch) 75 (1807) ................. 30
Boom Co. v. Patterson, 98 U.S. 403 (1879) .......................... 31
California v. Arizona, 440 U.S. 59 (1979) ........................... 26
Chicago, Burlington & Quincy R.R. v. Chicago,
166 U.S. 226 (1897)................................................................ 8
City of Boerne v. Flores, 521 U.S. 507 (1997) ..................... 26
City of Elgin v. Eaton, 83 Ill. 535 (1876) ............................. 31
City of Monterey v. Del Monte Dunes of Monterey,
Ltd., 526 U.S. 687 (1999) .................................................... 27
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ............. 11
Connolly v. Pension Benefit Guar. Corp.,
475 U.S. 211 (1986).............................................................. 23
Cuyahoga River Power Co. v. City of Akron,
240 U.S. 462 (1916).............................................................. 30
DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) .................. 30
Davis v. Passman, 442 U.S. 228 (1979) ........................... 9, 14
Delaware, Lackawanna, & W. R.R. v. Town of
Morristown, 276 U.S. 182 (1928) ....................................... 30
Dohany v. Rogers, 281 U.S. 362 (1930) ............................... 30
Eastern Enters. v. Apfel, 524 U.S. 498 (1998) .................... 23
Eastport Steamship Corp. v. United States,
372 F.2d 1002 (Ct. Cl. 1967) ............................................... 20
V
Cases—Continued:
Page
Eaton v. Boston, Concord & Montreal R.R.,
51 N.H. 504 (1872)............................................................... 31
Egbert v. Boule, 142 S. Ct. 1793 (2022) .......................... 10, 32
FDIC v. Meyer, 510 U.S. 471 (1994) ................................ 9, 29
Felker v. Turpin, 518 U.S. 651 (1996) ................................. 30
First English Evangelical Lutheran Church
v. County of Los Angeles, 482 U.S. 304 (1987) ........ 6, 23-26
Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ....................... 11
Goodyear Tire & Rubber Co. v. United States,
276 U.S. 287 (1928).............................................................. 22
Harman v. City of Omaha, 23 N.W. 503
(Neb. 1885) .......................................................................... 31
Hernandez v. Mesa, 140 S. Ct. 735 (2020) .......................... 32
Hooe v. United States, 218 U.S. 322 (1910) ......................... 19
Horne v. Department of Agric., 569 U.S. 513 (2013) ......... 23
Jacobs v. United States, 290 U.S. 13 (1933) ........................ 24
Knick v. Township of Scott,
139 S. Ct. 2162 (2019) ...................... 4, 7, 8, 15-18, 28, 31, 32
Lane v. Pena, 518 U.S. 187 (1996) ................................. 12, 14
Langford v. United States, 101 U.S. 341 (1880) ........... 18, 19
Library of Congress v. Shaw, 478 U.S. 310 (1986) ............. 15
Lynch v. United States, 292 U.S. 571 (1934) ...................... 11
Maine Community Health Options v. United States,
140 S. Ct. 1308 (2020) .............................................. 11, 20-22
Malone v. Bowdoin, 369 U.S. 643 (1962) ............................. 16
Medellin v. Texas, 552 U.S. 491 (2008) ............................... 26
Meigs v. M’Clung’s Lessee,
13 U.S. (9 Cranch) 11 (1815) .............................................. 17
Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1852) .......... 17
Norwood v. Baker, 172 U.S. 269 (1898), aff ’g,
74 F. 997 (C.C.S.D. Ohio 1896) .......................................... 30
VI
Cases—Continued:
Page
OPM v. Richmond, 496 U.S. 414 (1990) ........................ 12, 14
Pacific R.R. Removal Cases, 115 U.S. 1 (1885) .................. 31
Pumpelly v. Green Bay Co.,
80 U.S. (13 Wall.) 166 (1872) .............................................. 31
Reardon v. City of S.F., 6 P. 317 (Cal. 1885) ....................... 31
Reeside v. Walker, 52 U.S. (11 How.) 272 (1851) ................ 12
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ............. 8
Schillinger v. United States, 155 U.S. 163 (1894) ........ 18, 19
Seaboard Air Line Ry. v. United States,
261 U.S. 299 (1923).............................................................. 27
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta,
Inc., 552 U.S. 148 (2008) ..................................................... 21
Transportation Co. v. Chicago, 99 U.S. 635 (1879) ............ 31
United States v. Bormes, 568 U.S. 6 (2012) ............ 18, 20, 21
United States v. Causby, 328 U.S. 256 (1946) ............... 19, 20
United States v. Clarke, 445 U.S. 253 (1980) ................ 24, 27
United States v. Great Falls Mfg. Co.,
112 U.S. 645 (1884).............................................................. 19
United States v. Idaho, 508 U.S. 1 (1993) ........................... 14
United States v. Lee, 106 U.S. 196 (1882) ........................... 16
United States v. Mitchell, 463 U.S. 206 (1983) ............. 15, 20
United States v. Navajo Nation,
556 U.S. 287 (2009)........................................................ 20, 22
United States v. Russell, 80 U.S. (13 Wall.) 623 (1871) ..... 18
United States v. Sherwood, 312 U.S. 584 (1941) ................. 12
United States v. Testan, 424 U.S. 392 (1976) ................ 20, 22
Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926).............................................................. 30
Virginia Office for Prot. & Advocacy v. Stewart,
563 U.S. 247 (2011)................................................................ 9
VII
Cases—Continued:
Page
Will v. Michigan Dep’t of State Police,
491 U.S. 58 (1989) ................................................................. 9
Williams v. United States, 289 U.S. 553 (1933) ...... 11-13, 20
Young, ex Parte, 209 U.S. 123 (1908)..................................... 8
Constitution and statutes:
U.S. Const.:
Art. I:
§ 8, Cl. 1 ...................................................................... 12
§ 9:
Cl. 2 (Suspension Clause) .................................... 29
Cl. 7 (Appropriations Clause) ................... 5, 12, 14
Amend. V ............................... 3-10, 13-17, 19, 21, 23-30, 32
Due Process Clause ................................................... 29
Takings Clause.............. 2, 5-8, 10, 14, 20-25, 27, 28-30
Amend. XIV .............................................................. 4, 7-10
§ 5 ............................................................................... 32
Act of Mar. 3, 1883, ch. 141, 22 Stat. 584 ............................. 17
Funding Act of 1790, ch. 34, 1 Stat. 138:
§§ 1-2, 1 Stat. 138-139 ..................................................... 13
§ 13, 1 Stat. 142-143 ......................................................... 13
Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81 ...................... 30
Tucker Act, Act of Mar. 3, 1887, ch. 359,
24 Stat. 505 (28 U.S.C. 1491).............................................. 18
§ 1, 24 Stat. 505 ................................................................ 19
28 U.S.C. 1491(a)(1)......................................................... 19
28 U.S.C. 1292(b) ..................................................................... 3
28 U.S.C. 1331 .................................................................... 9, 32
28 U.S.C. 1441(a) ..................................................................... 2
42 U.S.C. 1983 .................................................3, 4, 9, 25, 28, 32
VIII
Statutes—Continued:
Page
Cal. Civ. Proc. Code § 1245.260(a) (West 1981) .................. 25
Cal. Gov’t Code § 905.1 (West 1980) .................................... 24
Miscellaneous:
1 Annals of Cong. 439 (1789) ................................................ 14
Anthony J. Bellia Jr., Justice Scalia, Implied Rights
of Action, and Historical Practice,
92 Notre Dame L. Rev. 2077 (2017) .................................. 18
Black’s Law Dictionary (11th ed. 2019) ............................. 26
Robert Brauneis, The First Constitutional Tort:
The Remedial Revolution in Nineteenth-Century
State Just Compensation Law,
52 Vand. L. Rev. 57 (1999) ..................................... 16, 18, 31
Christian C. Day, Hamilton’s Law and Finance—
Borrowing from the Brits (and the Dutch),
47 Syracuse J. Int’l L. & Com. 1 (2019) ............................ 13
The Federalist No. 81 (Alexander Hamilton)
(Jacob E. Cook ed., 1961) ................................................... 11
Edmund W. Kitch & Julia D. Mahoney, Restructuring United States Government Debt: Private
Rights, Public Values, and the Constitution,
2019 Mich. St. L. Rev. 1283 (2019) .............................. 13, 14
S. Rep. No. 993, 47th Cong., 2d Sess. (1883) ....................... 17
Joseph L. Sax, Takings and the Police Power,
74 Yale L.J. 36 (1964) ......................................................... 14
In the Supreme Court of the United States
No. 22-913
RICHARD DEVILLIER, ET AL., PETITIONERS
v.
STATE OF TEXAS
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
The question presented is whether the Fifth Amendment’s Takings Clause provides a cause of action for
damages for an alleged taking of property without just
compensation. The United States has a substantial interest in that question because it implicates when the
federal government may be sued for alleged takings of
property.
STATEMENT
1. This case concerns the Texas Department of Transportation’s construction of a concrete traffic barrier in
the median strip on Interstate 10 near Houston. Pet.
App. 7a-8a. Petitioners allege that the barrier acts as a
dam that protects the eastbound lanes on the southern
half of the freeway from flood waters flowing from the
north to facilitate their use as an evacuation route dur(1)
2
ing flooding. Ibid. Petitioners further allege that during two rainfall events—the 60- and 40-inch deluges
from Hurricane Harvey and Tropical Storm Imelda in
2017 and 2019—the barrier caused petitioners’ properties to flood. Id. at 8a; see id. at 8a-9a (photographs).
Petitioners allege that such flooding will recur. J.A. 13.
2. Petitioners sued the State of Texas in state court,
filing four similar cases alleging that the barrier resulted in an uncompensated taking of property for public use, in violation of the Fifth Amendment’s Takings
Clause and the Texas Constitution’s takings provision.
Pet. App. 4a-5a. The State removed the cases to federal
district court under 28 U.S.C. 1441(a). See Pet. App. 5a,
68a. After the cases were consolidated, id. at 5a, petitioners filed an amended master complaint (J.A. 1-48)
making the same claims, J.A. 24-42. Texas moved to
dismiss that complaint. Pet. App. 7a.
The district court denied the State’s motion, Pet.
App. 33a-35a, adopting the memorandum and recommendation of a magistrate judge, id. at 34a-35a.
In the adopted opinion (Pet. App. 4a-32a), the district court determined that the State’s removal of the
underlying actions to federal court waived the State’s
sovereign immunity from suit. Id. at 20a-21a. The court
further determined that the State had waived its “immunity from liability” on takings claims, concluding
that the Texas takings provision—which “ ‘confers upon
property owners greater rights of recovery against the
[state] government than its federal fifth amendment
counterpart’ ”—had been interpreted by the Texas Supreme Court to waive “governmental immunity” from
takings claims under the state takings provision. Id. at
21a-22a (citation omitted). The court then concluded
3
that that waiver of immunity “applies with equal force
to [Fifth Amendment] takings claims.” Id. at 22a.
The district court further determined that the Fifth
Amendment supplies a private right of action for damages and, for that reason, petitioners did not need to
rely on a cause of action separately provided by another
source of law such as 42 U.S.C. 1983. Pet. App. 12a-18a.
The court reasoned that “[t]he Fifth Amendment’s Takings Clause is self-executing in that it creates a substantive right to just compensation that springs to life when
the government takes private property.” Id. at 15a-16a.
3. On interlocutory appeal under 28 U.S.C. 1292(b),
the court of appeals vacated and remanded for further
proceedings. Pet. App. 1a-3a (revised opinion).
The court of appeals “h[e]ld that the Fifth Amendment Takings Clause as applied to the states through
the Fourteenth Amendment does not provide a right of
action for takings claims against a state.” Pet. App. 2a.
The court cited a decision stating that a “federal court’s
authority to recognize a damages remedy [for a constitutional violation] must rest at bottom on a statute enacted by Congress.” Id. at 2a n.1 (citation omitted).
The court of appeals observed that “[t]he Supreme
Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and
constraints turning on the character and nature of the
taking.” Pet. App. 2a n.2. The court emphasized that
nothing in its opinion is “intended to displace the Supreme Court of Texas’s role as the sole determinant of
Texas state law.” Id. at 2a.
4. The court of appeals denied rehearing en banc.
Pet. App. 40a-41a; Supp. App. 42a-43a.
Judge Higginbotham concurred in the denial of rehearing. Supp. App. 44a-50a. He explained that this
4
Court’s reference to the “ ‘self-executing character’ ” of
the Takings Clause in Knick v. Township of Scott, 139
S. Ct. 2162, 2171 (2019) (citation omitted), simply referred to “the completeness of the claim itself,” not a
cause of action. Supp. App. 46a-47a & n.5.
Judge Higginson separately concurred in the denial
of rehearing. Supp. App. 51a-63a. He observed that
“implying constitutional causes of action is ‘a disfavored
judicial activity’ ” and concluded that doing so here
would impermissibly “infringe separation-of-powers
principles.” Id. at 51a (citation omitted); see id. at 54a55a. Judge Higginson identified “four warning signs”
that implying “a cause of action against the [S]tates”
here would impermissibly “ ‘arrogate legislative power’ ”:
(1) an “alternative remedial structure already exists in
state inverse-condemnation law”; (2) Congress enacted
42 U.S.C. 1983’s cause of action for constitutional claims
but elected not to extend that provision to States; (3) an
implied cause of action against States would implicate
federalism concerns best left to Congress; and (4) the
“ ‘systemwide consequences’ ” of recognizing an implied
right of action against States cannot be predicted.
Supp. App. 56a-57a (citations omitted).
Judge Oldham, joined by four other judges, dissented from the denial of rehearing en banc. Supp. App.
64a-97a.
SUMMARY OF ARGUMENT
The Fifth Amendment, as applied to the States
through the Fourteenth Amendment, does not itself
supply a cause of action for monetary relief against a
State. Such a cause of action must be created by Congress or state law. If compensation has not been made
available for a taking of property, a property owner may
obtain equitable relief to enjoin the taking.
5
A. The text of the Fifth Amendment’s Takings Clause
does not confer a cause of action for compensation or
damages. The Clause is phrased as a prohibition and
makes compensation a necessary condition for a lawful
taking, but it does not itself provide a cause of action for
monetary relief against the United States or a State.
The Constitution’s allocation of powers to Congress
confirms that the Fifth Amendment does not itself supply such a cause of action. The United States is immune
from suit unless Congress expressly waives that immunity; the Constitution’s Appropriations Clause similarly requires congressional authorization of a cause of
action for a money judgment against the United States;
and Congress’s constitutional power to pay the debts of
the United States includes authority to determine how
monetary claims may be considered. Under that allocation to Congress of power over the Nation’s fiscal
matters—an allocation that was particularly important
when the Fifth Amendment was adopted—no constitutional right exists to a have a court compel payments by
the United States. Any such cause of action must be
expressly provided in an Act of Congress.
B. History further confirms that conclusion. At the
Founding and for many years thereafter, there were no
general causes of action through which plaintiffs could
obtain compensation for property taken for public use.
The only means of obtaining compensation from the
United States itself was through a private Act of Congress. Thus, until the 1870s, the typical judicial recourse of a property owner was to bring a common-law
trespass action against a responsible government official, rather than the government, to obtain tort remedies, including ejectment.
6
Congress created the Court of Claims in 1855 to consider certain monetary claims against the United States
and, in 1887, Congress expanded that court’s authority
to hear claims founded upon the Constitution. But this
Court concluded that any action alleging a taking of
property had to rest on a theory of implied contract. In
1946, for the first time, the Court determined that a
Tucker Act claim may rest directly on the Fifth Amendment. But the Fifth Amendment alone does not give
rise to the cause of action. It is the combination of the
Tucker Act and the substantive source of law—like the
Fifth Amendment’s Takings Clause—on which the
plaintiff relies that gives rise to a cause of action for
money from the government where that substantive
provision is fairly interpreted as mandating compensation by the government.
C. Petitioners provide no sound basis for now construing the Fifth Amendment to confer a right of action
for money. Petitioners’ primary contention is that First
English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304 (1987), held that such a cause of
action exists. But neither First English nor any other
decision of this Court has so held.
Petitioners’ contention (Br. 10) that courts must enforce the Fifth Amendment by ordering the government to pay money is misplaced. The obligation to pay
compensation as a necessary condition to render a taking lawful is distinct from a cause of action for damages
if the government has not made compensation available.
Petitioners similarly err in asserting (Br. 8-9) that the
“unrefuted” “historical record” supports their position.
Finally, Congress and the States have provided
many inverse condemnation provisions to obtain compensation. There is no reason at this late date for an
7
additional cause of action for compensation directly under the Fifth Amendment itself.
ARGUMENT
THE FIFTH AMENDMENT DOES NOT CONFER A CAUSE
OF ACTION FOR COMPENSATION OR DAMAGES
The court of appeals correctly held that the Fifth
Amendment’s Takings Clause does not itself supply a
cause of action for damages against a State. Pet. App.
2a. On that basis, the court vacated the district court’s
decision and remanded for further proceedings, which
will allow the district court to decide whether state law
creates a cause of action for compensation from the
State. This Court should affirm.
The text of the Fifth Amendment, which as adopted
and still today applies only to the United States, does
not confer a cause of action for compensation or damages against the United States. The Constitution vests
Congress alone with power to waive the United States’
sovereign immunity from suit, to determine whether to
appropriate funds from the Treasury for any monetary
claim, and to pay the debts of the United States. And at
the Founding, “there were no general causes of action
through which plaintiffs could obtain compensation for
property taken for public use.” Knick v. Township of
Scott, 139 S. Ct. 2162, 2175, 2175-2176 (2019). It follows
that the Fifth Amendment as applied to the States
through the Fourteenth Amendment likewise does not
itself confer a cause of action for monetary relief against
a State and that any such cause of action must be created by Congress or state law.
8
A. This Case Involves Only Whether The Fifth Amendment
Itself Confers A Cause Of Action For Monetary Relief
The Fifth Amendment’s Takings Clause provides:
“nor shall private property be taken for public use,
without just compensation.” U.S. Const. Amend. V.
That prohibition, ratified in 1791 as part of the Bill of
Rights, operates “solely as a limitation on the exercise
of power by the government of the United States.” Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 250-251
(1833) (Marshall, C.J.). In 1897, more than a century
later, this Court determined that the Fourteenth
Amendment’s application of the requirement of “due
process of law” to the States also “requires compensation to be made or adequately secured to the owner of
private property taken for public use under the authority of a State.” Chicago, Burlington & Quincy R.R. v.
Chicago, 166 U.S. 226, 235-241 (1897).
If adequate legal relief is available in “a suit for compensation * * * brought * * * subsequent to [a] taking,”
this Court has observed that “[e]quitable relief ” will
“not [be] available to enjoin [the] alleged taking of private property.” Ruckelshaus v. Monsanto Co., 467 U.S.
986, 1016 (1984); see Knick, 139 S. Ct. at 2175, 2177. But
if Congress or the State has not established an adequate
mechanism to recover compensation, a person who believes his property has been taken may sue the responsible federal or state officer for an injunction prohibiting the action alleged to constitute a taking. As this
Court has explained, an individual’s “ability to sue to
enjoin unconstitutional actions by state and federal officers” is a “creation of courts of equity,” reflecting “a
long history of judicial review of illegal executive action.” Armstrong v. Exceptional Child Ctr., Inc., 575
U.S. 320, 326-327, 329 (2015); see, e.g., Ex parte Young,
9
209 U.S. 123 (1908); see also Virginia Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 254-255 (2011) (Ex
parte Young action is action against official in her official capacity). Here, however, petitioners seek monetary relief for the alleged taking.
A plaintiff who seeks monetary relief based on a violation of an asserted right or obligation must establish
jurisdiction and identify the substantive source of law
creating that right or obligation. If the plaintiff sues
the United States or a State, the plaintiff must also
identify a relevant waiver or abrogation of sovereign
immunity from suit. See FDIC v. Meyer, 510 U.S. 471,
475 (1994); Alden v. Maine, 527 U.S. 706, 715-730 (1999)
(state sovereign immunity). And the plaintiff must further identify a “ ‘cause of action’ ” that allows “the rights
and obligations” created by the substantive source of
law to “be judicially enforced” by the plaintiff in a suit
for monetary relief. Davis v. Passman, 442 U.S. 228,
238-239 (1979); cf. Meyer, 510 U.S. at 483-484 (stating
that existence of a “cause of action,” which “provides an
avenue for relief ” in court, is “ ‘analytically distinct’ ”
from the existence of a relevant “waiver of sovereign
immunity”) (citation omitted).
Here, the State invoked federal-question jurisdiction
under 28 U.S.C. 1331 when it removed the case to federal court based on petitioners’ assertion of a right to
compensation under the Fifth and Fourteenth Amendments. And the State does not contest the proposition
that its removal of the case to federal court waives its
sovereign immunity from suit in federal court.
As for a cause of action, a suit under 42 U.S.C. 1983
based on a violation of a constitutional right is not available against a State. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 62-71 (1989). And the court of ap-
10
peals did not address whether such a cause of action has
been created by state law, a matter it left open on remand. Pet. App. 2a. Finally, petitioners do not argue
that the Court should extend Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), to “imply” a new, judge-made cause of
action under the Fifth (or Fourteenth) Amendment, see
Br. 34, 37, a course that this Court has eschewed for
decades, see Egbert v. Boule, 142 S. Ct. 1793, 1802-1804,
1808-1809 (2022). And no such cause of action could be
implied for monetary relief directly against the United
States or a State in any event. Thus, as this case comes
to the Court on interlocutory review, the only question
is whether the Fifth Amendment itself confers a cause
of action for compensation or damages when property
has been taken without just compensation. It does not.
B. The Fifth Amendment Does Not Confer A Cause Of Action For Monetary Relief
The Fifth Amendment—here as incorporated against
the State by the Fourteenth Amendment—does not of
its own force confer a cause of action against the government for monetary compensation or damages in the
event property is taken without compensation. The text
of the Fifth Amendment does not confer such a right of
action and the broader context of the Constitution refutes that proposition.
1. The text of the Fifth Amendment’s Takings Clause
makes no mention of any judicial means of enforcement.
The Clause is phrased as a substantive prohibition,
making it unlawful for the government to take “private
property * * * for public use, without just compensation.” U.S. Const. Amend. V. Nothing in that text specifying that compensation is a necessary condition for a
lawful taking provides a cause of action for a plaintiff to
11
obtain compensation in court. Nor does anything in the
text suggest that it creates a cause of action for damages if Congress does not make compensation available.
This Court has therefore recognized that “the Constitution did not ‘expressly create . . . a right of action’ when
it mandated ‘just compensation’ for Government takings of private property for public use.” Maine Community Health Options v. United States, 140 S. Ct.
1308, 1328 n.12 (2020) (Maine Community) (citations
omitted).
2. The Constitution confirms in multiple other ways
that there can be no suit for money against the United
States in the absence of an Act of Congress.
First, the rule “that ‘the sovereign power is immune
from suit’ ” was “ ‘well settled and understood’ at the
time of the Constitutional Convention.” Glidden Co. v.
Zdanok, 370 U.S. 530, 562-564 (1962) (plurality opinion)
(quoting Williams v. United States, 289 U.S. 553, 573
(1933)). Indeed, Alexander Hamilton explained in The
Federalist that “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual
without its consent.” The Federalist No. 81, at 548 (Jacob E. Cooke ed., 1961). It was thus “universally” accepted that “no suit c[ould] be commenced or prosecuted against the United States” without that consent.
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-412
(1821) (Marshall, C.J.). That “immunity from suit exists
whatever the character of the proceeding or the source
of the right sought to be enforced,” and applies even if
the government is alleged to have violated “rights conferred upon the citizen by the Constitution.” Lynch v.
United States, 292 U.S. 571, 582 (1934). And the power
to waive that immunity resides exclusively in the Legis-
12
lative, not Judicial, Branch. See Lane v. Pena, 518 U.S.
187, 192, 196 (1996).
Second, beyond the requirement of an Act of Congress clearly waiving federal sovereign immunity, an
Act of Congress is also necessary to recognize a cause
of action for a money judgment against the United
States. The Appropriations Clause provides that “[n]o
Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const.
Art. I, § 9, Cl. 7. That provision “provides an explicit
rule of decision” requiring that any “claim for money
from the Federal Treasury” be “authorized by a statute.” OPM v. Richmond, 496 U.S. 414, 424 (1990). That
requirement applies to “a judicial proceeding seeking
payment of public funds.” Id. at 425. “Any exercise of
[judicial] power granted by the Constitution” therefore
is “limited by a valid reservation of congressional control over funds in the Treasury,” ensuring “that public
funds will be spent according to the letter of the difficult
judgments reached by Congress as to the common
good” rather than “the individual pleas of litigants.” Id.
at 425, 428; see Reeside v. Walker, 52 U.S. (11 How.)
272, 291 (1851).
Third, the resolution of “claims for money against
the United States” is “a function which belongs primarily to Congress as an incident of its power to pay the
debts of the United States.” Williams, 289 U.S. at 569
(citation omitted); see U.S. Const. Art. I, § 8, Cl. 1 (“The
Congress shall have power * * * to pay the Debts * * *
of the United States.”); United States v. Sherwood, 312
U.S. 584, 587 (1941). Congress, in its “discretion,” may
either “exercise [that authority] directly” or “delegate
[it] to other agencies.” Williams, 289 U.S. at 569 (citation omitted); see id. at 580. And because “controver-
13
sies respecting claims against the United States” are
“equally susceptible of legislative or executive determination,” this Court has made clear that “there is no constitutional right to a judicial remedy” for payment. Id.
at 579-580 (emphases added). That holds true even
when the debt may arise from a legal obligation to pay
“just compensation under the Fifth Amendment.” Id.
at 581. The decision whether to supply a right to obtain
payment from the United States in court therefore rests
exclusively with Congress.
3. The central importance of Congress’s authority
over the United States’ public fisc was particularly
acute when the Fifth Amendment was ratified in 1791.
Throughout the 1780s, the United States, which “remained in default on much of its interest-bearing debt,”
“was for all practical purposes bankrupt.” Edmund W.
Kitch & Julia D. Mahoney, Restructuring United States
Government Debt: Private Rights, Public Values, and
the Constitution, 2019 Mich. St. L. Rev. 1283, 1293
(2019) (Government Debt). In the Compromise of 1790,
Congress assumed the substantial Revolutionary War
debts of the States to promote “an orderly, economical
and effectual arrangement of the public finances” in a
statute that also confronted the young Nation’s massive
debt by authorizing new loans to “discharge” the “installments of the principal” and “arrears of interest”
owed to foreign nations. Funding Act of 1790, ch. 34,
§§ 1-2, 13, 1 Stat. 138-139, 142-143; see Christian C.
Day, Hamilton’s Law and Finance—Borrowing from
the Brits (and the Dutch), 47 Syracuse J. Int’l L. & Com.
1, 41-44 (2019); id. at 29-35 (explaining that “in 1789 the
most pressing national problem was the nation’s finance” and “massive” public debt).
14
“[T]he United States became zealous in its commitment to fiscal probity.” Government Debt 1295. Reflecting that zeal, “Congress’ early practice was to adjudicate each individual money claim against the United
States, on the ground that the Appropriations Clause
forbade even a delegation of individual adjudicatory
functions where payment of funds from the Treasury
was involved.” Richmond, 496 U.S. at 430. Particularly
considering that practice and the Nation’s troubled finances, the Framers, like courts now, would have been
“particularly alert to require” express statutory authorization “before the United States [could] be held liable”
by a court for “monetary exactions.” United States v.
Idaho, 508 U.S. 1, 8-9 (1993); see Lane, 518 U.S. at 196.
As explained above, there is no such language in the
Fifth Amendment.
“[C]ontemporaneous commentary” concerning the
Takings Clause “is in very short supply,” Joseph L. Sax,
Takings and the Police Power, 74 Yale L.J. 36, 58
(1964), and petitioners point to no discussion by the
Framers concerning suits against the United States to
compel the payment of money. When James Madison
presented a draft of the Bill of Rights to Congress in
1789, he stated that “tribunals of justice will consider
themselves in a peculiar manner the guardians of those
rights.” Davis, 442 U.S. at 241-242 (quoting 1 Annals of
Cong. 439 (1789)); see Supp. App. 80a. But Madison did
not address the Takings Clause specifically; suggest
that the Clause itself compelled judicial awards of
money against the United States; or address the authority vested exclusively in Congress to waive sovereign immunity from suit, control payments from the
Treasury, and pay federal debts. Neither did Madison’s
other statements quoted by petitioners. See Br. 24-25.
15
Given the central importance of the Constitution’s allocation of monetary authority to Congress at the Founding, the absence of any contemporaneous discussion of
those subjects, like the absence of language addressing
them in the Fifth Amendment, is powerful confirmation
that the Framers understood that the Fifth Amendment did not modify the just-established separation of
powers by requiring courts to award money judgments
against the United States without congressional authorization.
C. History Confirms That The Fifth Amendment Does Not
Itself Confer A Cause Of Action
The manner in which Congress and the courts historically addressed takings of property for public use
confirms that the Fifth Amendment does not itself confer a right of action in court for compensation or damages.
1. As this Court recently explained, “[a]t the time of
the founding,” “there were no general causes of action
through which plaintiffs could obtain compensation for
property taken for public use.” Knick, 139 S. Ct. at
2175-2176. Under the Fifth Amendment, a “citizen’s
only means of obtaining recompense from the Government” itself was through “private Acts of Congress.”
Library of Congress v. Shaw, 478 U.S. 310, 316 n.3
(1986); see United States v. Mitchell, 463 U.S. 206, 212213 (1983).
2. The difficulty of securing enactment of a private
Act of Congress meant that, “[u]ntil the 1870s, the typical recourse of a property owner who had suffered an
uncompensated taking was to bring a common law trespass action against the responsible corporation or government official,” rather than the government itself.
Knick, 139 S. Ct. at 2176. And in such cases, the plain-
16
tiff ’s cause of action was based on common-law tort law,
not the Fifth Amendment.
The courts in such common-law actions addressed
the Fifth Amendment only indirectly, if the defendant
official asserted “the defense that his trespass was lawful because authorized by statute or ordinance.” Knick,
139 S. Ct. at 2176. The “plaintiff would respond that the
law [invoked as a defense] was unconstitutional because
it provided for a taking without just compensation.”
Ibid. Those contentions allowed the court to determine
whether the Fifth Amendment was violated. Ibid.; see
Robert Brauneis, The First Constitutional Tort: The
Remedial Revolution in Nineteenth-Century State
Just Compensation Law, 52 Vand. L. Rev. 57, 67-72
(1999) (Remedial Revolution).
In United States v. Lee, 106 U.S. 196 (1882), for instance, this Court sustained a common-law suit for
ejectment filed by the son of General Robert E. Lee
against government officials to “recover possession” of
the Lee family estate on which the federal government,
after acquiring the property, had built a fort and Arlington National Cemetery. Id. at 197-199, 210; see id. at
224 (Gray, J., dissenting). The Court determined that
the government’s tax-sale purchase of the property did
not transfer valid title. Id. at 199-204. The officials nevertheless argued in defense that they were acting under
government authority regarding property “devoted to
public uses.” Id. at 217. This Court rejected that contention as “inconsistent with” the Fifth Amendment’s
prohibition against the taking of private property “ ‘for
public use without just compensation,’ ” id. at 218 (quoting U.S. Const. Amend. V). See Malone v. Bowdoin, 369
U.S. 643, 647-648 (1962) (describing Lee as allowing “a
suit for specific relief against the officer[s]” where their
17
actions were “ ‘constitutionally void’ ” because “there
was no remedy by which the plaintiff could have recovered compensation for the taking of his land” and the
possession of that land by officials constituted “ ‘an unconstitutional taking of property without just compensation’ ”) (citation omitted); cf. Block v. North Dakota,
461 U.S. 273, 281 (1983) (discussing officer suits in land
disputes). Rather than relinquish control of the cemetery, Congress appropriated funds to purchase the
property. Act of Mar. 3, 1883, ch. 141, 22 Stat. 584;
S. Rep. No. 993, 47th Cong., 2d Sess. 2 (1883). 1
Those common-law tort actions, however, were both
logically and legally distinct from a cause of action
against the United States itself based directly on a violation of the Fifth Amendment. This Court has made
clear that the indirect means for adjudicating such an
alleged violation (as a response to a defense) did not provide a means “to obtain money damages for a permanent taking—that is, just compensation for the total
value of his property”—from the government. Knick,
139 S. Ct. at 2176. A plaintiff could obtain from the defendant official only the remedies for the common-law
writ on which the plaintiff ’s cause of action was based,
which in a trespass action meant “only retrospective
damages [against the official], as well as an injunction
ejecting the government [official] from [the plaintiff ’s]
See also, e.g., Meigs v. M’Clung’s Lessee, 13 U.S. (9 Cranch) 11,
16, 18 (1815) (Marshall, C.J.) (concluding plaintiff “sustain[ed] his
action” for “ejectment” against officers at an Army garrison because the land on which it was built was “property of the Plaintiff ”
and the United States could not have “intended to deprive him of it
* * * without compensation”); Mitchell v. Harmony, 54 U.S. (13
How.) 115, 128, 132, 134 (1852) (“action of trespass” for seizure of
goods).
1
18
property going forward.” Ibid.; see Remedial Revolution 70, 97-99. 2
3. Subsequent experience under the Tucker Act, 28
U.S.C. 1491, demonstrates that an Act of Congress is
required to authorize suits to obtain money from the
United States based on a takings claim.
a. In 1855, Congress created the Court of Claims “to
relieve the pressure on Congress caused by the volume
of private bills.” United States v. Bormes, 568 U.S. 6,
11 (2012) (citation omitted). The court’s jurisdiction initially extended to monetary claims against the United
States founded upon an Act of Congress or an express
or implied contract, but not the Constitution. See id. at
11-12. A plaintiff could therefore seek compensation for
a taking of property indirectly by proving the existence
of a contract to pay for the government’s use of property or services. See United States v. Russell, 80 U.S.
(13 Wall.) 623, 628, 630-631 (1871) (affirming award
based on factual findings that officials “intend[ed] * * *
to pay a reasonable compensation” for using steamboats, the owner shared that “understanding,” and
“payments for the services were made” before the
owner sued for “a larger sum”); id. at 626 (findings); see
Schillinger v. United States, 155 U.S. 163, 170-171
(1894) (discussing Russell). That limited route to relief
led the Court in Langford v. United States, 101 U.S. 341
Federal courts adjudicated those common-law claims based on
Acts of Congress that “defined the causes of action that federal
courts could enforce in actions at law” by requiring use of the
“causes of action that the courts of the [relevant] state” would use,
such as a “writ of trespass” or other state common-law action. Anthony J. Bellia Jr., Justice Scalia, Implied Rights of Action, and
Historical Practice, 92 Notre Dame L. Rev. 2077, 2095 (2017); id. at
2094-2097.
2
19
(1880), to reject a takings claim but state that “[i]t is to
be regretted that Congress has made no provision by
any general law for ascertaining and paying this just
compensation.” Id. at 343.
b. In 1887, Congress enacted the Tucker Act, which
vested the Court of Claims with jurisdiction over, as relevant here, “[a]ll claims founded upon the Constitution
* * * or upon any contract, expressed or implied, with
the Government of the United States * * * in cases not
sounding in tort.” Act of Mar. 3, 1887, ch. 359, § 1, 24
Stat. 505 (codified as amended at 28 U.S.C. 1491(a)(1)).
The Tucker Act, however, did not recognize takings
claims directly under the Fifth Amendment.
This Court concluded that the Tucker Act did not extend to every claim under the Takings Clause, because
it applies only to claims that do not “sound[] in tort” and,
for that reason, “some element of contractual liability
must lie in the foundation of every action” brought under the Act. Schillinger, 155 U.S. at 167-169. The Court
reasoned that if a Fifth Amendment takings claim based
on “wrongful[]” action were cognizable in a damages action, then the violation of “every other provision of the
Constitution” would be too, because the “prohibition of
the taking of private property for public use without
compensation is no more sacred than” other constitutional provisions guaranteeing, for instance, that “no
person shall be deprived of * * * property without due
process of law.” Id. at 168. A “claimant’s cause of action” therefore had to “arise out of [an] implied contract.” United States v. Great Falls Mfg. Co., 112 U.S.
645, 656-657 (1884); see Hooe v. United States, 218 U.S.
322, 335 (1910).
In 1946, however, this Court in United States v.
Causby, 328 U.S. 256, found a taking on the basis of
20
repeated overflights over the plaintiffs’ land but declined to decide whether repeated trespasses might give
rise to an implied contract, because “[i]f there is a taking, the claim is ‘founded upon the Constitution’ and
within the jurisdiction of the Court of Claims” under the
Tucker Act. Id. at 267 (citing only Takings Clause decisions decided under implied-contract theories).
c. Today, the Tucker Act is understood to apply to
monetary claims based on the Constitution, a statute, or
regulation, but only if the provision “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Eastport Steamship Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl.
1967) (en banc). The Court of Claims adopted that interpretation to reflect the “historical boundaries” of its
authority to award monetary relief. Id. at 1008-1009;
see Williams, 289 U.S. at 569. In 1976, this Court
adopted that “established” interpretation as furnishing
the correct test for deciding whether a plaintiff may
maintain a Tucker Act suit. United States v. Testan,
424 U.S. 392, 400 (1976) (adopting Eastport Steamship’s
formulation); see Maine Community, 140 S. Ct. at 1328.
As explained below, takings claims against the United
States ordinarily qualify under that standard.
The Court has stated that the Tucker Act supplies
jurisdiction, Testan, 424 U.S. at 400, and “a waiver of
sovereign immunity,” Mitchell, 463 U.S. at 212, 216, for
monetary claims. See Bormes, 568 U.S. at 10. But the
Tucker Act does not itself “create[] substantive rights.”
United States v. Navajo Nation, 556 U.S. 287, 290
(2009).
The fair-interpretation formulation adopted in Testan, quoted above, then serves as the test for determining when a cause of action is available in a suit under
21
the Tucker Act based on a substantive provision of law
like the Takings Clause. That “test [is used] for determining whether” a substantive provision that “imposes
an obligation but does not provide the elements of a
cause of action qualifies for suit under the Tucker Act.”
Bormes, 568 U.S. at 15-16 (emphasis added). If the provision of substantive law invoked by the plaintiff supplies its own cause of action and thus provides its own
“judicial remedy,” that more specific cause of action, rather than the general “Tucker Act remedy,” applies. Id.
at 16. A cause of action is available under the Tucker
Act only if the substantive provision on which the plaintiff relies does not supply its own “cause of action.”
Maine Community, 140 S. Ct. at 1329-1330. And “under [this Court’s] case law,” property owners “can sue
through the Tucker Act” based on an alleged taking
under the Fifth Amendment, because the “moneymandating inquiry” supplies the “framework for determining when Congress has authorized a claim against
the Government” under the Tucker Act. Id. at 1328 n.12
(emphasis added).
The Tucker Act standard was not adopted as a test
for when the substantive provision on which the plaintiff
relies creates an implied private right of action for damages. Under the Court’s modern implied right-of-action
decisions, “private rights of action to enforce federal
[statutory] law,” for instance, can only “be created by
Congress.” Alexander v. Sandoval, 532 U.S. 275, 286
(2001). As a result, “a cause of action does not exist”
under that theory unless a statute, properly interpreted, reflects Congress’s “intent” to create such a
“private remedy” in court. Id. at 286-287; see Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc.,
552 U.S. 148, 164 (2008).
22
Thus, in its application, the Tucker Act does not
function only to supply jurisdiction and waiver of sovereign immunity. Within the congressional grant of authority under the Tucker Act framework, the combination of that Act and the substantive source of law on
which the plaintiff relies give rise to a cause of action
where the substantive provision “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,” Testan, 424 U.S. at
400 (citation omitted); cf. Goodyear Tire & Rubber Co.
v. United States, 276 U.S. 287, 293 (1928) (Tucker Act
supplies “right of action” based on “a contract express
or implied in fact”). 3
In this way the Tucker Act typically provides for
suits to obtain compensation for a taking. But that statutory recourse is not available in circumstances where
Congress would not have intended to pay compensation
if the particular statute or its application were found to
constitute a taking, but instead would have intended
courts to invalidate the statute or its application and
Although Justices Alito and Gorsuch have stated in dissenting
opinions that the Tucker Act does not itself create a “right of action,” Maine Community, 140 S. Ct. at 1332 (Alito, J., dissenting);
see Arizona v. Navajo Nation, 599 U.S. 555, 594-595 (2023) (Gorsuch, J., dissenting), those brief statements did not address whether
the Act does so in conjunction with a substantive source of law. Justice Alito noted the “obvious tension” between the Tucker Act’s
fairly-interpreted test and the Court’s decisions governing “recognition of private rights of action” and suggested additional briefing
to “understand how” the two relate. Maine Community, 140 S. Ct.
at 1333, 1135 & n.5. Justice Gorsuch did not address whether the
cause of action required in every Tucker Act case is supplied
through the combination of the Act (with its generally applicable
fairly-interpretated test), Navajo Nation, 556 U.S. at 291, and the
source of substantive law on which the plaintiff relies.
3
23
“grant[] equitable relief for Takings Clause violations”
resulting from the absence of compensation. Eastern
Enters. v. Apfel, 524 U.S. 498, 520-522 (1998) (plurality
opinion); see, e.g., Horne v. Department of Agric., 569
U.S. 513, 528 (2013) (following Eastern Enterprises and
allowing challenge to administrative fine rather than
after-the-fact damages action); Babbitt v. Youpee, 519
U.S. 234 (1997) (affirming grant of injunctive relief ).
That would be especially so, for example, under a program adjusting benefits and burdens between private
parties. See, e.g., Connolly v. Pension Benefit Guar.
Corp., 475 U.S. 211, 219, 228 (1986) (affirming denial of
equitable relief in takings challenge to employer’s withdrawal liability to multi-employer pension plan). That
inquiry is one of statutory interpretation akin to severability analysis.
D. Petitioners’ Contrary Arguments Do Not Support A
Cause Of Action Directly Under the Fifth Amendment
Itself
1. This Court has not held that the Fifth Amendment provides a cause of action for compensation or damages
a. Petitioners primarily argue (Br. 11-18) that First
English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304 (1987), held that the Takings
Clause itself supplies a cause of action to obtain compensation or damages. First English did not decide
that question.
The question in First English was whether a property owner “who claims that his property has been
‘taken’ by a land-use regulation may * * * recover damages for the time before it is finally determined that the
regulation constitutes a ‘taking’ of his property.” 482
U.S. at 306-307. The state appellate court concluded
24
that the owner could not because, under the rule established in an earlier California Supreme Court decision,
“compensation is not required until” a court has determined that the regulation effects a taking and the government elects “to continue the regulation in effect.”
Id. at 308-309. This Court rejected that rule, reasoning
that the judicial “[i]nvalidation of the ordinance * * * ,
though converting the taking into a ‘temporary’ one, is
not a sufficient remedy to meet the demands” of the
Fifth Amendment because, under the Takings Clause,
“compensation is measured from th[e] time” that an “interference * * * effects a taking.” Id. at 319, 320 n.10;
see id. at 313, 322. The Court observed that “the selfexecuting character of the constitutional provision with
respect to compensation” reflects that “[s]tatutory
recognition [i]s not necessary” and that a “promise to
pay [i]s not necessary” for the Fifth Amendment’s obligation to provide just compensation to take effect. Id.
at 315 (quoting United States v. Clarke, 445 U.S. 253,
257 (1980), and Jacobs v. United States, 290 U.S. 13, 16
(1933)).
First English thus determined only the scope of the
Fifth Amendment’s substantive obligation, not whether
that obligation may be judicially enforced through a
cause of action for monetary relief directly under the
Fifth Amendment itself. The Court had no occasion to
consider that federal cause-of-action question because
“the complaint in [First English] invoked only the California Constitution.” First English, 482 U.S. at 313 n.8.
The complaint alleged two “cause[s] of action” for “inverse condemnation” (see id. at 308-309 & nn.2-3) under
the state takings provision and specifically relied on a
state statute governing “[i]nverse condemnation” actions recognized under state law, Cal. Gov’t Code § 905.1
25
(West 1980). See J.A. at 44-53, First English, supra
(No. 85-1199) (complaint); see also, e.g., Cal. Civ. Proc.
Code § 1245.260(a) (West 1981). The complaint did not
assert any federal takings claim, much less a cause of
action for compensation directly under the Fifth Amendment.
The Fifth Amendment issue in First English arose
only indirectly. The state rule rejected by this Court
did not call into question the availability of a (state-law)
cause of action for damages in takings cases generally.
The rule was simply that “damages [could not be recovered] for the time before it is finally determined that the
regulation constitutes a ‘taking’ of [the plaintiff ’s] property.” First English, 482 U.S. at 306-307 (emphasis
added). The federal question arose because, in “applying th[at] state rule,” the state court “rejected on the
merits the claim that the rule violated the United States
Constitution.” Id. at 313 n.8. That federal constitutional ruling then enabled this Court to resolve that specific issue because it was “raised and passed upon below.” Id. at 314 n.8.
The Court itself acknowledged the focused nature of
its decision, emphasizing that “any deficiencies in the
complaint as to federal issues” was “irrelevant for [the
Court’s] purposes.” First English, 482 U.S. at 314 n.8.
The property owner’s counsel similarly argued that the
case was only about “the substantive right to just compensation” under the Takings Clause, not whether a
“remedial vehicle” like Section 1983 would supply the
requisite “cause of action.” Oral Arg. Tr. at 22, First
English, supra (No. 85-1199).
First English’s reference to the “self-executing character of the constitutional provision with respect to
compensation” merely reflects that the Fifth Amend-
26
ment’s obligation to pay compensation applies as soon
as a taking occurs and does not, as the state appellate
court had held, require additional action to trigger
it (i.e., a court ruling that the challenged regulation
effected a taking). First English, 482 U.S. at 315 (citation omitted); see Black’s Law Dictionary 1633 (11th
ed. 2019) (“self-executing” refers to a legal instrument
that is “effective immediately without the need of any
type of implementing action”). And because that selfexecuting legal obligation arises as soon as a taking
occurs, “a landowner is entitled to bring an action in
inverse condemnation” at that time. First English,
482 U.S. at 315. This Court routinely refers to “selfexecuting” provisions in this way. See, e.g., City of
Boerne v. Flores, 521 U.S. 507, 524 (1997) (describing
the “first eight Amendments to the Constitution”); California v. Arizona, 440 U.S. 59, 65 (1979) (describing
original jurisdiction). This Court has observed, for instance, that a treaty is “ ‘self-executing’ ” when it “has
automatic domestic effect as federal law upon ratification,” even though the Court stated that such a “selfexecuting” agreement is generally presumed not to
“ ‘provide for a private cause of action [for its enforcement] in domestic courts.’ ” Medellin v. Texas, 552 U.S.
491, 505 n.2, 506 n.3 (2008) (citation omitted).
b. The Court’s decisions in Jacobs and Clarke,
quoted in First English, 482 U.S. at 315, provide petitioners no greater support. Jacobs was a suit under the
Tucker Act in which the “only question” was whether
interest is a component of just compensation; it did not
address whether a suit could be brought directly under
the Fifth Amendment without regard to the Tucker Act.
Jacobs, 290 U.S. at 15-16. Clarke considered whether a
federal statute expressly authorizing a condemnation
27
proceeding to be brought under state law to acquire Indian trust lands also encompassed an “inverse condemnation suit” by a property owner that would be triggered by a state or local government’s physical occupation of the property. Clarke, 445 U.S. at 254-255. As a
result, no question of a cause of action directly under
the Fifth Amendment was implicated. Clarke simply
described the “common understanding” of the “phrase
‘inverse condemnation.’ ” Id. at 257. Like First English, Clarke’s observation that a “landowner is entitled
to bring” an inverse condemnation action “as a result of
‘the self-executing character of the [Takings Clause]
with respect to compensation,” ibid. (citation omitted),
reflected only that the obligation to pay compensation
forming the basis for such an action arises as soon as
property has been taken.
Petitioners’ reliance (Br. 13-15, 33-34) on other takings decisions by the Court is similarly misplaced, because each addressed the substantive obligation to provide just compensation as a condition for a lawful taking, not the existence of a cause of action for damages
directly under the Fifth Amendment. In Seaboard Air
Line Ry. v. United States, 261 U.S. 299 (1923), the Court
resolved a suit under the Lever Act’s express statutory
cause of action to recover the amount of unpaid just
compensation for land taken for the national defense.
Id. at 302-303 & n.2. And the plurality opinion in City
of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687 (1999), observed that when the government itself initiates a condemnation action, “it provides the
landowner a forum for seeking just compensation, as is
required by the Constitution.” Id. at 714.
The Court in Knick similarly determined that the
Fifth Amendment right to just compensation “arises at
28
the time of the taking, regardless of post-taking remedies that may be available to the property owner.” 139
S. Ct. at 2170. In other words, “a taking without compensation violates the self-executing Fifth Amendment
at the time of the taking.” Id. at 2172 (emphasis added).
Moreover, Knick, like First English, had no occasion to
consider the distinct question whether the Fifth Amendment itself confers a cause of action for compensation
or damages. The Knick plaintiff filed suit under 42
U.S.C. 1983’s express cause of action. See Knick, 139 S.
Ct. at 2168. The Court thus specifically focused on
“§ 1983 takings claims” and held that the plaintiff could
“bring his claim in federal court under § 1983.” Id. at
2168, 2173, 2177; see id. at 2170-2173, 2175 n.6, 21782179 (discussing Section 1983).
2. A substantive right to compensation does not itself
provide a judicial action for monetary relief
Petitioners contend (Br. 10, 34-38) that this case does
not concern “the judiciary’s power to create a cause of
action to enforce” the Takings Clause because “the Constitution itself substantively requires compensation” if
there is a taking and “courts must enforce that command.” But a substantive obligation to pay compensation as a necessary condition to render a taking lawful
is distinct from a cause of action for damages against
the government if it has not made compensation available and its action is therefore an unconstitutional taking. In an attempt (Br. 35-36) to support their assertion, petitioners identify only decisions, with which we
agree, showing that an equitable action for injunctive
relief—not a legal action for damages—will typically lie
against government officials to enjoin government action in those circumstances. Such decisions simply reflect that courts possess equitable authority to end unlaw-
29
ful action on a prospective basis if there is no adequate
remedy at law to obtain monetary relief, see pp. 8-9, supra; they do not authorize monetary relief against the
government.
That is the conclusion the Court reached with respect to the Fifth Amendment’s parallel instruction that
no person shall “be deprived of * * * property, without
due process of law,” U.S. Const. Amend. V. The Amendment prohibits the taking or deprivation of “property,”
“without” (respectively) just compensation or due process. Ibid. The Court has rejected the contention that
it should supplement traditional equitable relief for violations of the Due Process Clause, holding that no
“cause of action for damages” exists against the government for unconstitutional deprivations of “a property
right * * * without due process of law.” Meyer, 510 U.S.
at 474, 483-486.
Petitioners assert (Br. 9, 18) that “the Constitution
secures at least the remedies it expressly provides” and
identify habeas corpus as the only “other remedy” so
provided. But the Takings Clause does not speak of a
judicial action, unlike the Suspension Clause, which
provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,”
U.S. Const. Art. I, § 9, Cl. 2 (emphasis added). And the
relief in a habeas action runs not against the government, like the suit for a money judgment petitioners
urge here, but against the individual government officer, just like an equitable suit for an injunction.
Moreover, petitioners’ assumption that the Constitution itself affirmatively authorizes a court to issue a writ
of habeas corpus is misplaced. Chief Justice Marshall,
writing for the Court, concluded early in the Nation’s
30
history that “the power to award the writ by any of the
courts of the United States, must be given by written
[statutory] law,” as it was in the Judiciary Act of 1789,
ch. 20, § 14, 1 Stat. 81. Ex parte Bollman, 8 U.S.
(4 Cranch) 75, 94-95 (1807) (emphasis added); accord
Felker v. Turpin, 518 U.S. 651, 664 (1996); cf. DHS v.
Thuraissigiam, 140 S. Ct. 1959, 1969 n.12 (2020) (noting
later debate about “whether the Clause independently
guarantees the availability of the writ or simply restricts the temporary withholding of its operation” but
declining to “revisit that question”); id. at 1984 (Thomas, J., concurring).
3. Petitioners identify no historical recognition of a
Fifth Amendment right of action for compensation or
damages
Petitioners err in asserting (Br. 8-9, 27-34) that history shows that “the Takings Clause gives property
owners the right to sue for compensation” and that the
“historical record” on that point “is unrefuted.”
Petitioners, for instance, rely (Br. 29) on Takings
Clause decisions involving suits for injunctive relief
against either non-sovereign municipalities or state officials subject to suit under Ex parte Young, none of
which suggests a constitutional cause of action for compensation or damages against the government. See
Norwood v. Baker, 172 U.S. 269, 276, 290 (1898), aff ’g
74 F. 997, 997, 1000 (C.C.S.D. Ohio 1896) (suit to enjoin
enforcement of tax assessment); see also, e.g., Dohany
v. Rogers, 281 U.S. 362, 363-364 (1930); Delaware,
Lackawanna, & W. R.R. v. Town of Morristown, 276
U.S. 182, 188, 195 (1928); Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 384, 395-397 (1926); Cuyahoga
River Power Co. v. City of Akron, 240 U.S. 462, 463-464
(1916).
31
Petitioners also cite (Br. 32) federal precedents involving state takings provisions, but none addressed a
suit by a property owner directly under a state constitution. Each involved either (1) a traditional commonlaw tort action against a non-governmental entity,4 or
(2) a condemnation proceeding brought by the entity
taking the property.5
Petitioners identify (Br. 32) state decisions illustrating that, in the 1870s, “state courts began to recognize
implied rights of action for damages under the state
equivalents of the Takings Clause.” Knick, 139 S. Ct. at
2176. Yet each of those state-court decisions inferred
rights of action based on intervening constitutional
amendments that expanded the application of state takings provisions from property taken to property taken
“or damaged” for public use. See Reardon v. City of
S.F., 6 P. 317, 322, 325-326 (Cal. 1885) (amendment provided new “cause of action” beyond actions for “tort at
common law”); Harman v. City of Omaha, 23 N.W. 503,
503-504 (Neb. 1885) (same); City of Elgin v. Eaton, 83
Ill. 535, 536-537 (1876) (stating that “the city became liable to an action” “after the adoption of our present constitution”); see also Remedial Revolution 115, 118-121
& nn.265, 270-272, 127, 132 (describing such recognition
of “right[s] of action”). 6 Although state courts may exercise “ ‘common-law powers’ ” to “impl[y] * * * causes
Transportation Co. v. Chicago, 99 U.S. 635, 639-640 (1879) (trespass on the case to recover damages); Pumpelly v. Green Bay Co.,
80 U.S. (13 Wall.) 166, 176-181 (1872) (same).
5
Pacific R.R. Removal Cases, 115 U.S. 1, 5-6 (1885); Boom Co. v.
Patterson, 98 U.S. 403, 404-405 (1879).
6
Eaton v. Boston, Concord & Montreal R.R., 51 N.H. 504 (1872),
was a common-law tort action (“action on the case,” id. at 505, 520).
See id. at 510-511.
4
32
of action” under their state constitutions, federal courts
possess no similar common-law authority to imply a
cause of action for damages against the government under the Fifth Amendment. Egbert, 142 S. Ct. at 1802
(citation omitted); see Hernandez v. Mesa, 140 S. Ct.
735, 742 (2020).
4. Petitioners provide no substantial justification for
now reading a cause of action into the Fifth Amendment
Quite aside from the compelling textual and historical grounds for rejecting petitioners’ position, petitioners have not shown any substantial justification for
holding at this late date that the Fifth Amendment itself
confers a cause of action for compensation or damages
against the government. The Tucker Act generally supplies an avenue to seek compensation from the federal
government. Section 1983 supplies a monetary remedy
against municipalities, from which a significant proportion of takings cases arise. Although Congress did not
apply Section 1983 to the States, it would have the authority to do so under its enforcement authority in Section 5 of the Fourteenth Amendment. And this Court
has observed that every State, besides Ohio, “provides
a state inverse condemnation action” in some form.
Knick, 139 S. Ct. at 2168 & n.1; cf. id. at 2174 n.5 (reserving decision on whether Section 1331 provides federal jurisdiction over state inverse-condemnation actions seeking compensation based on the Fifth Amendment). And of course a suit in equity will lie to enjoin
government action constituting a taking if compensation is not available.
Whether petitioners may recover compensation
against the State under a cause of action created under
33
the Texas Constitution or state statutory or common
law is open for the district court to decide on remand.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
TODD K IM
Assistant Attorney General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
WILLIAM B. LAZARUS
JOHN L. SMELTZER
ALISA B. KLEIN
KEVIN J. KENNEDY
Attorneys
DECEMBER 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.