Reply Brief — Richard Devillier, et al., Petitioners v. Texas

No. 22-913

In the Supreme Court of the United States

RICHARD DEVILLIER, ET AL.

Petitioners,

v.

STATE OF TEXAS,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

REPLY BRIEF FOR PETITIONERS

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

(469) 904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

ANDREW H. WARD

CHRISTEN MASON HEBERT

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, TX 77004

(713) 533-1704

charles@irvineconner.com

Counsel for Petitioners

i

TABLE OF CONTENTS

Page

ARGUMENT IN REPLY ........................................... 1

A. First English controls ...................................... 1

B. Texas’s text-and-structure arguments are

wrong ............................................................... 9

C. History supports Petitioners ......................... 14

D. This is not a Bivens case ............................... 18

E. Federal remedies demand federal enforcement ............................................................... 21

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Page

CASES

Agins v. City of Tiburon, 24 Cal. 3d 266

(1979) .................................................... 2, 5, 9, 10

Agins v. City of Tiburon, 447 U.S. 255 (1980)... 2, 3

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) .................................... 13, 14

Armstrong v. United States, 364 U.S. 40

(1960) ................................................................ 14

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

973 F.2d 704 (9th Cir. 1992) .............................. 6

Baker v. City of McKinney, 601 F. Supp. 3d 124

(E.D. Tex. 2022).................................................. 6

Baker v. City of McKinney, 84 F.4th 378 (5th

Cir. 2023) ............................................................ 6

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) .................................... 18, 19

Boise Cascade Corp. v. State ex rel. Or. State

Bd. of Forestry, 991 P.2d 563 (Or. Ct. App.

1999) ....................................................... 6, 21–22

Burnham v. Super. Ct. of Cal., 495 U.S. 604

(1990) .............................................................. 3, 5

Carlson v. Green, 446 U.S. 14 (1980) .................. 19

Chicago, Burlington & Quincy R.R. Co. v. City

of Chicago, 166 U.S. 226 (1897) ....................... 20

City of Baytown v. Schrock, 645 S.W.3d 174

(Tex. 2022) ........................................................ 12

City of Boerne v. Flores, 521 U.S. 507 (1997) ...... 14

iii

Clayburgh v. City of Chicago, 25 Ill. 535

(1861) ................................................................ 17

Davis v. Passman, 442 U.S. 228 (1979)............... 19

DLX, Inc. v. Kentucky, 381 F.3d 511 (6th Cir.

2004) ................................................................... 6

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .......................................... 16

Donnelly v. United States, 28 Fed. Cl. 62

(1993) .................................................................. 6

Eaton v. Boston, Concord & Montreal R.R.,

51 N.H. 504 (1872) ........................................... 16

Egbert v. Boule, 596 U.S. 482 (2022) ................... 19

Ex parte Young, 209 U.S. 123 (1908)................... 13

First Eng. Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304

(1987) ................... 1–3, 5, 9, 12–14, 16, 17, 19, 21

Gardner v. Vill. of Newburgh, 2 Johns. Ch. 162,

(N.Y. Ch. 1816) ................................................. 16

Henry v. Dubuque & Pac. R.R. Co., 10 Iowa 540

(1860) ................................................................ 17

Hooper v. Burgess (Md. Provincial Ct. 1670) ...... 16

Hui v. Castaneda, 559 U.S. 799 (2010) ............... 12

Jacobs v. United States, 290 U.S. 13

(1933) .................................................3, 13, 16, 17

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

(2019) ................................. 7, 8, 13, 15, 16, 18–19

Kohl v. United States, 91 U.S. 367 (1875) ........... 11

Langford v. United States, 101 U.S. 341 (1879) . 11

Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682 (1949) .......................................... 12

iv

Me. Cmty. Health Options v. United States,

140 S. Ct. 1308 (2020) ........................ 7–9, 13–14

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ......... 6

Manning v. Mining & Mins. Div. of the Energy,

Mins. & Nat. Res. Dep’t, 144 P.3d 87 (N.M.

2006) ................................................................... 6

Meigs v. M‘Clung’s Lessee, 13 U.S. (9 Cranch)

11 (1815) ............................................... 11, 13, 15

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

(1851) ................................................................ 15

Mont.-Dakota Utils. Co. v. Nw. Pub. Serv. Co.,

341 U.S. 246 (1951) .................................... 12–13

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................. 14–15, 16

Nat’l Mut. Ins. Co. of D.C. v. Tidewater Transfer

Co., 337 U.S. 582 (1949)..................................... 8

O’Connor v. Eubanks, 83 F.4th 1018 (6th Cir.

2023) ................................................................. 23

Schacht v. United States, 398 U.S. 58 (1970) ....... 5

SDDS, Inc. v. State, 650 N.W.2d 1 (S.D. 2002) ..... 6

Seminole Tribe of Fla. v. Florida, 517 U.S. 44

(1996) .................................................................. 3

Speed v. Mills, 919 F. Supp. 2d 122 (D.D.C.

2013) ................................................................... 6

Timbs v. Indiana, 139 S. Ct. 682 (2019) ............. 16

United States v. 50 Acres of Land, 469 U.S. 24

(1984) ................................................................ 18

United States v. Causby, 328 U.S. 256

(1946) ............................................................ 7, 17

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) .......................................... 16

v

United States v. IBM, 517 U.S. 843 (1996) ........... 9

United States v. Lee, 106 U.S. 196 (1882) ........... 15

United States v. Navajo Nation, 556 U.S. 287

(2009) .................................................................. 9

United States v. Russell, 80 U.S. 623 (1871) ....... 16

Webster v. Doe, 486 U.S. 592 (1988) .................... 12

Whitehead Oil Co. v. City of Lincoln,

515 N.W.2d 401 (Neb. 1994) .............................. 6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................... 1–3, 6–20, 22, 23

U.S. Const. amend. XIV ................................... 8, 14

STATUTES

28 U.S.C. § 1331 ................................................... 21

31 U.S.C. § 1304(a)............................................... 10

42 U.S.C. § 1983 ........................................... 4, 5, 20

OTHER AUTHORITIES

1 Joseph Story, Commentaries on Equity

Jurisprudence, as Administered in England

and America (2d ed. 1839) ............................... 15

Brief of United States as Amicus Curiae, First

Eng. Evangelical Lutheran Church v. County

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

at 1986 WL 727420 ........... 1–2, 4–5, 9–10, 15, 20

Congressional Research Service, The Judgment

Fund: History, Administration, and Common

Usage (March 7, 2013) ............................... 10–11

vi

Eric Berger, The Collision of the Takings and

State Sovereign Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ................. 12

Robert Brauneis, The First Constitutional Tort:

The Remedial Revolution in NineteenthCentury State Just Compensation Law,

52 Vand. L. Rev. 57 (1999)......................... 16, 17

1

ARGUMENT IN REPLY

The text of the Fifth Amendment says that just

compensation is mandatory. As explained in Petitioners’ opening brief, this Court has therefore treated

that text as creating an enforceable right to receive

just compensation. Texas’s response provides no reason to abandon that longstanding approach.

This reply proceeds as follows. Part A refutes

Texas’s reading of First English Evangelical Lutheran

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

which is the controlling precedent. It also surveys

later decisions, which confirm that First English

meant what it said. The next parts respond to Texas’s

remaining arguments. Part B addresses constitutional text and structure, Part C addresses history,

and Part D addresses Bivens. Finally, Part E explains

why the federal right to just compensation must be

enforceable: States, including Texas, are not nearly so

eager to pay for takings as they claim.

A. First English controls.

1. Texas fails to counter what First English

said on its face: that the Fifth Amendment, of its own

force, furnishes a basis for a court to award just compensation. Texas claims instead that First English

was about other things. But a quick review of that

case confirms that it settled the question in this one.

So, again, First English. An ordinance allegedly deprived a church of all use of its land—a regulatory taking. Id. at 308. The church sued in California state court for just compensation. Ibid. The complaint “invoked only the California Constitution,” id.

at 313 n.8, and it was not “a model of pleading

2

practice,” Brief of United States as Amicus Curiae *9,

First English, 482 U.S. 304, available at 1986 WL

727420 (“USFE Br.”). It could be read as “assert[ing]

a claim for damages under the United States Constitution,” id., and thus the church “succeeded in bringing the federal issue into the case,” First English,

482 U.S. at 313 n.8. The California Court of Appeal

resolved that issue when it “upheld the validity of the

ordinance against the particular federal constitutional question [of] just compensation.” Ibid. (emphasis added). The lower court did so because “the United

States Supreme Court ha[d] not yet ruled on the question of whether a state may constitutionally limit the

remedy for a taking to nonmonetary relief.” USFE Br.

*5.

Without a conclusive ruling from this Court,

the court of appeal followed Agins v. City of Tiburon,

24 Cal. 3d 266, 273 (1979), which had held that “a

landowner alleging” regulatory deprivation of “substantially all use of his land” could only “invalidate

the ordinance as excessive regulation in violation of

the Fifth Amendment” “through declaratory relief or

mandamus.” Aff’d on other grounds, 447 U.S. 255

(1980). “He [could] not … elect to sue in inverse condemnation and thereby transmute an excessive use of

the police power into a lawful taking for which compensation in eminent domain must be paid.” Ibid.

This rule was based on “policy considerations [suggesting] that inverse condemnation is an inappropriate and undesirable remedy.” Id. at 275. The bottom

line, as it came to this Court, was thus the same rule

that Texas and the United States urge now:

3

Landowners could sue for injunctions to stop takings,

but not for just compensation. 1

First English rejected that rule. Aware that

Agins had “stated that only mandamus and declaratory judgment are remedies,” the Court spent seven

years trying to resolve “whether a State may limit the

remedies available to a person whose land has been

taken without just compensation.” Agins, 447 U.S. at

263 (1980); see also First English, 482 U.S. at 310

(noting four attempts).

The answer was no. Collecting a century of

Fifth Amendment cases, First English explained that

“the compensation remedy is required by the Constitution.” 482 U.S. at 316. So “a landowner is entitled

to bring an action in inverse condemnation.” Id. at

315–16. “Statutory recognition was not necessary.”

Id. at 315 (quoting Jacobs v. United States, 290 U.S.

13, 16 (1933)). This rule explained this Court’s decision that First English, the church, could sue for just

compensation for the specific regulatory taking imposed by Los Angeles. The rule of decision—landowners can sue for just compensation directly under the

Constitution—is the holding of First English. 2

This holding was not (as Texas would have it)

“lurk[ing]” somewhere in the background. Resp. Br.

1 Resp. Br. 13; U.S. Amicus Br. 4.

2 E.g., Burnham v. Super. Ct. of Cal., 495 U.S. 604, 613 n.2 (1990)

(plurality) (explaining that the “exclusive basis” for a judgment

is a holding); see also Seminole Tribe of Fla. v. Florida, 517 U.S.

44, 67 (1996) (“When an opinion issues for the Court, it is not

only the result but also those portions of the opinion necessary

to that result by which we are bound.”).

4

36. It was squarely presented. Indeed, the United

States specifically framed the question presented (in

part) as “[w]hether the Fifth and Fourteenth Amendments, of their own force and without reliance on”

42 U.S.C. 1983, “require a state court to enter a

money judgment against a governmental entity.”

USFE Br. *1. That question was not only presented,

said the United States, it was dispositive:

Appellants claim, as they must in order

to prevail in this Court given the present state of the pleadings, that the

Fourteenth Amendment requires of its

own force that a state or federal court

provide a monetary remedy against the

government when it takes property.

Id. at *12 (emphasis added).

The United States’ First English brief then

spent nearly 10,000 words on that question. It argued

that “the Takings Clause’s prohibition of uncompensated takings does not imply a constitutionally-based

compensation remedy.” Id. at *26. Contra Resp. Br.

36 (“the issue of causes of action … was ‘[not] brought

to the attention of the court’”). The United States repeatedly discussed the phrase “cause of action”—as

in, “this Court has been reluctant to permit a cause of

action in federal court directly under the Fourteenth

Amendment, unaided by congressional legislation.”

USFE Br. *30. Contra Resp. Br. 36 (“causes of action

… at most ‘lurk[ed] in the record’”).

This Court answered this heavily briefed, outcome-determinative question by rejecting “the argument of the United States that ‘the Constitution does

5

not, of its own force, furnish a basis for a court to

award money damages against the government.’”

First English, 482 U.S. at 316 n.9. Contra Resp. Br.

36 (“causes of action … ‘no[t] ruled upon’”). To say

nothing of the wider discussion, that footnote, alone,

resolves this case. See, e.g., Schacht v. United States,

398 U.S. 58, 64 (1970) (recognizing holdings contained

in footnotes).

Beyond ignoring the question resolved by this

Court in First English, Texas also protests (at 36–37)

that the defendant was a municipality, not a state.

But that distinction did not factor into this Court’s

analysis. Nothing in First English suggests it hinges

on a § 1983 cause of action that the church “declined

to rely on,” USFE Br. *9, and that the opinion never

mentioned. See Burnham, 495 U.S. at 613 n.2 (plurality) (“Nor is it relevant for present purposes these

holdings might instead have been rested on other

available grounds.”).

And the reasoning in First English was not specific to cities and counties. The crux of the opinion did

not even mention municipalities, and its citations included cases with non-municipal defendants. 482 U.S.

at 314–16. It overturned the rule from Agins, which

itself had origins at the state level. See Agins, 24 Cal.

3d at 272–73 (relying on a takings case against the

California Coastal Commission). And it rejected one

of the bases for the United States’ argument—“principles of sovereign immunity”—a rejection that would

make no sense if this Court were limiting its holding

to municipalities or § 1983. 482 U.S. at 316 n.9. Put

simply, First English involved a city, but its analysis

6

applies to governments in general. That ends this

case.

2. Texas also fails to address the consensus understanding of First English. Over the nearly four

decades since this Court decided First English, just

two courts, the Ninth Circuit and the Fifth Circuit below, have held that landowners cannot sue directly

under the Takings Clause. And they got there by ignoring First English. See Pet. App. 2a; Azul–Pacifico,

Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir.

1992). Indeed, Petitioners can find only one published

opinion—Judge Higginson’s concurrence below—

adopting anything like Texas’s reading of First English.

By contrast, every court to expressly consider

whether First English requires a cause of action for

just compensation has concluded that it does. Federal

courts say so. 3 State courts say so. 4

Most importantly, this Court says so. Texas (at

39–40) has no explanation for why this Court—twice

in the last five years—has reiterated this holding of

First English. In Knick, the Court confirmed that

3 See, e.g., DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir.

2004); Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997); Donnelly

v. United States, 28 Fed. Cl. 62, 65 n.2 (1993); Baker v. City of

McKinney, 601 F. Supp. 3d 124, 145 (E.D. Tex. 2022), rev’d on

other grounds, 84 F.4th 378 (5th Cir. 2023); Speed v. Mills,

919 F. Supp. 2d 122, 128 (D.D.C. 2013).

4 See, e.g., Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 401,

405 (Neb. 1994); Manning v. Mining & Minerals Div., 144 P.3d

87, 91 (N.M. 2006); SDDS, Inc. v. State, 650 N.W.2d 1, 9 (S.D.

2002); Boise Cascade Corp. v. State ex rel. Or. State Bd. of Forestry, 991 P.2d 563, 567 (Or. Ct. App. 1999).

7

First English “reject[ed] the view that ‘the Constitution does not, of its own force, furnish a basis for a

court to award money damages against the government.’” Knick v. Twp. of Scott, 139 S. Ct. 2162, 2172

(2019) (quoting First English, 482 U.S. at 316 n.9).

Examining the history of the Takings Clause, the

Court then explained exactly what that statement

meant: Just as state courts had “recognize[d] implied

rights of action for damages under the state equivalents of the Takings Clause,” First English “joined the

state courts in holding that the compensation remedy

is required by the Takings Clause itself.” Id. at 2176.

The discussion of the Takings Clause in Maine

Community Health Options v. United States, 140 S.

Ct. 1308, is similar. Texas (at 38) seizes on that opinion’s language that the Takings Clause does not “expressly create a right of action.” 140 S. Ct. at 1328

n.12 (citing First English). Which is true; the Fifth

Amendment does not end with, “which a Citizen may

seek in a Case.” But the point of the discussion in

Maine Community Health is that landowners can sue

under the Takings Clause anyway, even without

“magic words explicitly inviting suit.” Ibid. The

Clause creates a cause of action through its “obligation to pay” because otherwise that obligation would

be “meaningless.” Ibid.

If Texas’s reading of First English were correct,

one would expect Texas to be able to explain why this

Court has repeatedly gotten it so wrong. It cannot.

Nor can Texas explain why property owners

can sue under the Tucker Act. See United States v.

Causby, 328 U.S. 256 (1946). As Petitioners have explained, the Tucker Act itself does not provide any

8

cause of action. It “provides the standard procedure

for bringing [Takings] claims,” Knick, 139 S. Ct. at

2170, but it “simply opens those courts to plaintiffs

already possessed of a cause of action.” Nat’l Mut. Ins.

Co. of D.C. v. Tidewater Transfer Co., 337 U.S. 582,

594 n.22 (1949) (plurality). See also Pet. Br. 15–16,

41. The act does not “create substantive rights,” and

its existence does not mean “every claim invoking the

Constitution is cognizable under” it. Me. Cmty.

Health, 140 S. Ct. at 1327 (quotation omitted). So,

even with the Tucker Act, takings cases against the

federal government must stand on a separate cause of

action. Petitioners say (like this Court has said) this

cause of action comes from the Takings Clause. Cf.

Knick,139 S. Ct. at 2174 (“A claim for just compensation brought under the Tucker Act … is a Fifth

Amendment takings claim.”). Texas identifies no alternatives. Resp. Br. 43–44. It instead defers to the

United States itself, which, in turn, offers only the unconvincing theory that no cause of action under the

Tucker Act plus no cause of action under the Takings

Clause somehow adds up to a cause of action under

“the combination” of both. U.S. Amicus Br. 20–22.

This strange arithmetic provides no coherent basis for

continuing to allow takings claims under the Tucker

Act—let alone for allowing them while barring directly analogous claims under the Fourteenth

Amendment.

***

Texas’s argument was briefed in First English,

dispatched in First English, and buried by the cases

discussing First English. As Texas does not ask the

Court to overrule First English—let alone refute

9

Petitioners’ arguments for keeping it—the Court can

stop here. E.g., United States v. IBM, 517 U.S. 843,

856 (1996) (“The principles that animate our policy of

stare decisis caution against overruling a longstanding precedent on a theory not argued by the parties.”).

B. Texas’s text-and-structure arguments

are wrong.

Even if the slate were blank and First English

had not rejected much of Texas’s lead argument, it

would still fail. The Constitution’s text and structure

do not bar a cause of action.

1. Texas first observes that “[n]othing in the

Clause tells the federal government how it must go

about providing th[e] just compensation.” Resp. Br.

14. Set aside that the Court rejected this argument in

First English. 5 Under settled law, a cause of action

can exist even without an explicit provision “that the

right or duty … is enforceable through a suit.” Me.

Cmty. Health, 140 S. Ct. at 1328 (quoting United

States v. Navajo Nation, 556 U.S. 287, 290 (2009)). If

the government has an “obligation to pay money”—

which, under the Takings Clause, everyone agrees it

does—that obligation typically implies a “remedy for

the defaulted amount.” Id. at 1328 n.12. That is why

this Court, in Maine Community Health, specifically

5 Compare USFE Br. *15 (“the Clause … does not address the

question of the appropriate remedy”), with First English,

482 U.S. at 316 n.9 (holding United States’ argument “refute[d]”). Also compare Resp. Br. 15 (“Congress gets to decide.”),

with USFE Br. *30 (“[D]iscretion is largely entrusted to the Congress not the courts.” (quotation omitted)) and with Agins, 24

Cal. 3d at 276 (“[I]t seems a usurpation of legislative power for a

court to force compensation.”).

10

connected “the money-mandating inquiry” with landowners’ ability to sue under the Takings Clause. Ibid.

That ability (contra Texas) does not tell any

“government how it must go about providing … just

compensation.” Resp. Br. 14. The states (and Congress) remain largely free to “use private bills” “or

other appropriate means.” Id. at 15. 6 (Had Texas done

so before it flooded Petitioners’ land, there would of

course be no case today.) Petitioners claim only a

backstop: When a State refuses to pay just compensation, it may be made to answer in court.

2. Next is the Appropriations Clause. According to Texas, Congress’s exclusive control over the

Treasury means courts cannot award just compensation. Resp. Br. 17–20. First English rejected this argument, too. 7 But even if it hadn’t, the argument has

no connection to the real world. Congress has appropriated money for final judgments. 31 U.S.C.

§ 1304(a). And it did so explicitly “so that agencies

would pay less post-judgment interest on awards.”

Congressional Research Service, The Judgment

6 Similarly, Texas cites a handful of 19th-century cases holding

that the legislature may decree that the amount of just compensation be ascertained by commissioners rather than by a jury.

Rep. Br. 16–17. Perhaps. But whether the Seventh Amendment

requires a jury to resolve the quantum of just compensation is a

different question from whether the Fifth Amendment requires

just compensation when it has been withheld.

7 See USFE Br. *18 (“This provision independently bars a court

from ordering the payment of money out of the Federal Treasury

unless Congress has created a damage remedy.”); see also Agins,

24 Cal. 3d at 276 (“[T]he expenditure of public funds would be,

to some extent, within the power of the judiciary.”).

11

Fund: History, Administration, and Common Usage 4

(March 7, 2013). That a court might issue a judgment

that must be satisfied by a congressional appropriation is neither new nor controversial. 8

And Texas simply dances past the radical implications of its argument, which necessarily requires

courts (out of respect for the separation of powers) to

issue sweeping injunctions unwinding uncompensated takings or even ejecting the United States military from its garrisons. 9 Yet those orders, too, require

the expenditure of government funds: The military

cannot move its garrisons for free.

Ultimately, Texas’s separation-of-powers arguments are a distraction. The judiciary enters judgments, and the other branches of government choose

how to respond to them—by paying money or by incurring some other consequence like post-judgment

interest. Continuing to recognize a cause of action under the Takings Clause requires nothing different.

3. Next is sovereign immunity. (To be clear,

Texas does not invoke immunity, Resp. Br. 31 n.4, but

8 Again, Texas’s cases provide it no support. Langford v. United

States, 101 U.S. 341, 343 (1879), did not hold “that the judiciary

cannot provide compensation even for a taking where Congress

made ‘no provision by any general law for ascertaining and paying this just compensation.’” Resp. Br. 19. Langford specifically

held open the possibility the Court of Claims could award compensation anyway. 101 U.S. at 343–44. Then it held that the

Court of Claims did not have jurisdiction to hear claims founded

on the ultra vires torts of United States officers. Id. at 344. And

Kohl v. United States, 91 U.S. 367 (1875), simply holds that direct condemnation actions invoke federal jurisdiction.

9 Meigs v. M‘Clung’s Lessee, 13 U.S. (9 Cranch) 11, 16, 18 (1815).

12

says the idea of immunity should still weigh against

a cause of action.) This argument, too, runs headlong

into First English. 10 Regardless, the argument “confuses the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.”

Larson v. Domestic & Foreign Com. Corp., 337 U.S.

682, 692–93 (1949). Sovereign immunity is a “logically

distinct” concept. Hui v. Castaneda, 559 U.S. 799, 807

(2010). Thus, Justice Scalia’s belief that takings suits

against the federal government would fail without the

Tucker Act’s waiver of immunity is simply not relevant. Resp. Br. 2, 26 (quoting Webster v. Doe, 486 U.S.

592, 613 (1988) (Scalia, J., dissenting)). This Court,

one day, may address whether the Takings Clause abrogates State sovereign immunity. 11 But there is no

occasion to weigh in now. Texas chose the federal forum, Pet. Supp. App. 68a, and declined to assert immunity before this Court, Resp. Br. 31 n.4.

4. Fourth is jurisdiction. Texas (at 20) argues

that the Takings Clause does not imply a cause of action because Article III does not explicitly create a forum to hear it. But, as with immunity, this conflates

distinct issues. Cf. Mont.-Dakota Utils. Co. v. Nw.

10 482 U.S. at 316 n.9 (“The Solicitor General urges that … prin-

ciples of sovereign immunity [establish] that the Amendment itself is … not a remedial provision. The cases … refute the argument …”).

11 Petitioners certainly think that it does. See, e.g., Eric Berger,

The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493 (2006). But resolving that

question will require the Court to wait for a state party whose

courts, unlike Texas’s, actually hold that it is immune from takings claims. Cf. City of Baytown v. Schrock, 645 S.W.3d 174 (Tex.

2022).

13

Pub. Serv. Co., 341 U.S. 246, 249 (1951) (“[T]he question whether jurisdiction exists has been confused

with the question whether the complaint states a

cause of action.”). A lack of jurisdiction at most means

there might be nowhere to hear a claim. It does not

mean that there is no claim. After all, jurisdiction

does not automatically exist for plaintiffs to seek injunctions against unconstitutional acts, including unconstitutional takings if compensation is unavailable.

E.g., Ex parte Young, 209 U.S. 123, 155–56 (1908);

Knick, 139 S. Ct. at 2168; see also, e.g., Meigs, 13 U.S.

at *16 (ejectment). Without federal-question jurisdiction, those claims could not be brought in federal court

either—but they still exist, the same as just-compensation claims do.

5. Fifth, Texas turns to Armstrong v. Exceptional Child Center, Inc., which held that there is no

implied cause of action under the Supremacy Clause.

575 U.S. 320 (2015). But different clauses are different. Armstrong does not discuss the Takings Clause,

which mandates the payment of money while the Supremacy Clause does not. So Armstrong did not consider the “money-mandating” inquiry from cases like

Maine Community Health, 140 S. Ct. at 1329 (collecting cases predating Armstrong), let alone consider

takings cases like First English and Jacobs v. United

States, 290 U.S. 13 (1933). On top of that, actions under the Supremacy Clause fundamentally concern

federal statutes, which Congress controls. So it makes

sense that Congress, not private litigants, would control enforcement of those statutes. Armstrong,

575 U.S. at 325–26. The Takings Clause, which applies directly to takings by governments at every

level, is different.

14

6. Finally, Texas invokes § 5 of the Fourteenth

Amendment for the proposition that Congress may

create remedies to enforce that Amendment. Resp. Br.

26–27. Of course it can. But nothing in § 5 allows Congress to change the scope of § 1, which deliberately

creates judicially enforceable individual rights. Pet.

Br. 36–37; see also City of Boerne v. Flores, 521 U.S.

507, 524 (1997) (noting that § 1 “confers substantive

rights against the States, which, like the provisions of

the Bill of Rights, are self-executing”). Congressional

inaction cannot take away the Fifth Amendment’s

compensation mandate any more than it could take

away any other constitutional protection.

Texas’s structural arguments are wrong. Most

were rejected in First English. All are unconvincing.

If there is a foundational idea on which this case

turns, it comes not from Armstrong v. Exceptional

Child Center but from Armstrong v. United States:

The Takings Clause was “designed to bar Government from forcing some people alone to bear public

burdens which, in all fairness and justice, should be

borne by the public as a whole.” 364 U.S. 40, 49 (1960).

C. History supports Petitioners.

As with text and structure, Texas is also wrong

to argue that history weighs against Petitioners. Because the Takings Clause undisputedly “creates a

duty of just compensation,” Resp. Br. 17, and because,

under the “obligation to pay” standard, that duty creates a right of action, Me. Cmty. Health, 140 S. Ct. at

1328 n.12, the burden is on Texas to show that a remedy-free Takings Clause “is consistent with this Nation’s historical tradition,” N.Y. State Rifle & Pistol

15

Ass’n, Inc. v. Bruen, 597 U.S. 1, 33–34 (2022). This it

cannot do.

Texas’s top line is that “[t]he historical sources”

show that “takings violations were remedied through

non-judicial proceedings, common law trespass action[s] … or … equitable relief.” Resp. Br. 45 (quotation omitted). At this point, it may not surprise the

Court to hear that this argument appeared in First

English. USFE Br. *19–20. Nevertheless. These

sources do not mean what Texas thinks they do.

To be sure, Petitioners agree that “[a]t the time

of the founding” (although not the Reconstruction)

“there were no general causes of action through which

plaintiffs could obtain compensation for property

taken for public use.” Knick, 139 S. Ct. at 2175–76.

But there were no general causes of action at all—

only the various technical “forms of action.” 12 Add in

the lack of federal-question jurisdiction and the limited scope of the original Takings Clause, and the lack

of early takings cases is unsurprising. Yet, even with

those limitations, what the cases show is federal

courts holding federal officials liable in trespass, 13

ejecting government officials from land taken without

compensation, 14 and enforcing an implied promise to

12 1 Joseph Story, Commentaries on Equity Jurisprudence, as

Administered in England and America 26 (2d ed. 1839) (describing the forms).

13 E.g., Mitchell v. Harmony, 54 U.S. (13 How) 115, 135 (1851).

14 See Meigs, 13 U.S. at 16, 18; see also United States v. Lee,

106 U.S. 196, 219–22 (1882).

16

pay for what the government took. 15 In other words,

faced with a bedrock property right and no way to enforce it directly, courts bent over backwards to enforce

property rights anyway. State courts, of course, long

did the same. 16 Then “state courts began to recognize

implied rights of action” directly “under the state

equivalents of the Takings Clause,” Knick, 139 S. Ct.

at 2176, and, ultimately, this Court established that

federal “claims for just compensation are grounded in

the Constitution itself,” First English, 482 U.S. at 315

(referring to Jacobs, 290 U.S. at 16). It would be extraordinary to conclude from this history that landowners should lose a remedy under the Takings

Clause. 17

15 See United States v. Great Falls Mfg. Co., 112 U.S. 645, 657–

58 (1884); United States v. Russell, 80 U.S. 623, 630 (1871).

16 See Hooper v. Burgess (Md. Provincial Ct. 1670), reprinted in

57 Archives of Maryland, Proceedings of the Provincial Court

1666–1670, at 571, 574 (J. Hall Pleasants ed., 1940); see also

Eaton v. Boston, Concord & Montreal R.R., 51 N.H. 504, 517

(1872); Gardner v. Vill. of Newburgh, 2 Johns. Ch. 162, 166 (N.Y.

Ch. 1816); Robert Brauneis, The First Constitutional Tort: The

Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 72 (1999). State constitutional

interpretation hardly has “no bearing” on the federal clause.

Resp. Br. 44–45. This Court assesses historical state law, often

extensively, in determining the breadth of federal protections.

E.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 245–

55 (2022); Bruen, 597 U.S. at 46–70; Timbs v. Indiana, 139 S. Ct.

682, 687–89 (2019).

17 It would also mean that the lack of direct just-compensation

claims at the Founding trumps the widespread adoption of those

claims by Reconstruction. See Bruen, 597 U.S. at 37–38 (noting

debate on when meaning is assessed).

17

Indeed, the 19th-century history so strongly favors compensation that Texas almost entirely avoids

it. Texas complains that the cases awarding compensation “post-date ratification of the Fourteenth

Amendment.” Resp. Br. 45 (emphasis omitted). Some

do. But many pre-date it as well: Clayburgh v. City of

Chicago, 25 Ill. 535 (1861), recognized a suit seeking

to compel Chicago to pay just compensation for a taking. Henry v. Dubuque and Pacific Railroad Company, 10 Iowa 540 (1860), similarly upheld an award

of just compensation, rejecting the idea that a property owner was “confined” to injunctive relief. Id. at

545. And even the cases recognizing a compensation

remedy post-ratification did so without any suggestion “that their holding was novel.” Brauneis, supra,

at 110.

At bottom, Texas has not offered a historical

tradition that overrides the language in the Takings

Clause. Instead, the history favors Petitioners. Yes,

before the Founding, property owners had to look to

the legislature for just compensation. But the Founding era was marked by a “proliferation of just compensation clauses [that] may have been due to a more

general loss of faith in legislatures.” Brauneis, supra,

at 107 & n.220. And American history shows an unflagging dedication to the idea that just compensation

is an enforceable right—a right whose enforcement

was shaped by the vagaries of jurisdiction or pleading

requirements, but an enforceable right all the same.

Once those jurisdictional and pleading requirements

were relaxed, the history shows an unsurprising enforcement of that right, including by this Court in decisions like Jacobs through Causby and on to First

18

English itself. Texas provides no reason to move backwards.

D. This is not a Bivens case.

Texas’s last major argument is to equate this

case with Bivens. Resp. Br. 28–32. But that characterization is false. Bivens cases are about whether

courts should create a constitutional remedy. Bivens

itself contains all of one sentence on text and one sentence on history, and then turns to an analysis of “special factors” of policy. Bivens v. Six Unknown Named

Agents, 403 U.S. 388, 395–97 (1971). Perhaps a litigant could make a text-and-history argument that

some remedies are required by some provisions of the

Constitution, see Vazquez Amicus 15–24, but that is

not the argument addressed in Bivens. It is, however,

the argument here, beginning with the very text of the

Takings Clause. As shown above, the Fifth Amendment itself requires a remedy. This case does not,

therefore, rest on, extend, or even implicate Bivens.

The differences are confirmed by the acts and

remedies at issue in Bivens cases versus takings

cases. For one, Bivens cases seek consequential damages. Petitioners do not. They seek just compensation—the fair market value of the property interest

taken—not “consequential damages” flowing from a

wrongful act. United States v. 50 Acres of Land,

469 U.S. 24, 33 (1984). For two, unlike Bivens cases,

this case does not involve the question of how to fashion a remedy for a past instance of unlawful behavior

by state actors. It instead involves a deliberate taking—a permissible policy decision, but one that creates an obligation to provide compensation. Rather

than providing damages to offset a past wrongful act,

19

awarding just compensation fulfills a present constitutional obligation. See Knick, 139 S. Ct. at 2170 (“[A]

property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.”).

Later descriptions of Bivens cases also confirm

that this is not one of them. After all, this Court recently noted that it has expanded the Bivens remedy

only twice. See Egbert v. Boule, 596 U.S. 482, 490–91

(2022) (listing Davis v. Passman, 442 U.S. 228 (1979)

and Carlson v. Green, 446 U.S. 14 (1980)). First English was not mentioned because it is not a Bivens case.

That is why Justice Rehnquist could dissent in Davis

and Carlson less than a decade before Chief Justice

Rehnquist wrote First English. See Nat’l Ass’n Realtors Amicus 13–16.

Because this is not a Bivens case, Texas’s special-factors-type analysis (at 29–32) is simply not relevant. The Constitution controls. But Texas’s analysis

is also unconvincing on its own terms.

•

As to alternatives under state law: “The

availability of any particular compensation

remedy, such as an inverse condemnation

claim under state law, cannot infringe or restrict the property owner’s federal constitutional claim—just as the existence of a state

action for battery does not bar a Fourth

Amendment claim of excessive force.”

Knick, 139 S. Ct. at 2171. 18

18 Inasmuch as Texas is talking about the alternative of state

courts hearing federal claims, Petitioners can only observe that

they tried that here.

20

•

As to § 1983: It is inapplicable to some entities (as here), and, in any event, Congress

can’t ratchet down rights through statutes. 19

•

As to separate sovereigns: the Takings

Clause already applies to the States. Chicago, Burlington & Quincy R.R. Co. v. City

of Chicago, 166 U.S. 226 (1897).

•

Finally, Texas’s warning of “systemwide

consequences” of recognizing a Takings

Clause cause of action overlooks that courts

recognize one already. As Petitioners have

discussed, courts nationwide expressly recognize claims arising directly under the

Fifth Amendment. To the extent Texas’s parade of horribles about laches or sovereign

immunity had any basis in reality, one

would expect those horribles to already be

on the march. They are not. Instead, lower

courts (including the Court of Federal

Claims) adjudicate these claims every day,

which means continuing to recognize the

Takings Clause cause of action will not

19 Also, the argument is yet another do-over from First English.

See USFE Br. *30–34 (“Congress’s enactment of 42 U.S.C. 1983

has eliminated any need for this Court to explore implicit constitutional remedies to be applied against governmental bodies[.]”).

21

unleash anything new. 20 Texas wants to

disturb the status quo, not Petitioners.

The bottom line? This is not a Bivens case. Petitioners are not asking the Court to hold that for

every right there is a remedy. See Resp. Br. 42. Instead, the Court need only hold that where there is a

remedy, it can be enforced.

E. Federal remedies demand federal enforcement.

Finally, a word on Texas’s suggestion that none

of this matters because Petitioners cannot “identify

a[] State that refuses to provide just compensation for

a taking.” Id. at 29. Of course they can. States routinely try to evade their obligations under the Fifth

Amendment. California did so successfully for years

before this Court stopped it with First English. In the

years since, other states have tried the same, only to

be stopped by their own courts’ faithful application of

First English. Supra n.4. And Texas—now, today, in

this case—is doing its level best to avoid the Fifth

Amendment. Seventeen states want to join in, filing

an amicus brief insisting that when, where, and

whether they pay for property they take is entirely up

to them. States Amicus Br. 20 (asserting state power

“to decide the nature, scope, and proper forum” for

just compensation). One of them, Oregon, is here apparently because it wants to escape its own courts’

20 The question of nationwide takings claims against the federal

government would turn on whether the Tucker Act and the Little Tucker Act together impliedly limit jurisdiction under

28 U.S.C. § 1331. See Resp. Br. 31; States Amicus Br. 20–21.

Whatever the answer is, Congress is free to change it.

22

recognition of First English. See Boise Cascade Corp.,

991 P.2d at 567.

Texas’s repeated incantations of its respect for

property rights must be weighed against its conduct

here. Petitioners filed federal and state takings

claims in state court—a forum that Texas, now, seems

to concede would have adjudicated both on the merits.

See Resp. Br. 4. 21 Texas invoked the jurisdiction of the

federal courts and promptly sought to dismiss the federal claim—precisely because it believed itself entitled to a more favorable legal standard under state

law. See Pet. at 4 n.4. And, so far, its plan has worked:

If the Fifth Circuit’s decision remains in place, Petitioners can never litigate a federal takings claim to

judgment. If they lose under state law, they lose.

A victory for Texas would mean more of the

same. It is simply not true that everything would proceed apace in state court. There is, as Texas has

shown, removal. But set that aside. The whole reason

state courts entertain claims based on the Fifth

Amendment is that they believe the Takings Clause

provides a cause of action. If this Court holds that it

does not, state courts will believe that, too. And other

states, as Texas did here, will seek every opportunity

to extinguish their obligations under the Takings

21 To the extent Texas now concedes that plaintiffs properly

brought claims “on the basis of the Fifth Amendment” in state

court (Resp. Br. 4), it is unclear on what basis Texas moved to

dismiss Petitioners’ claims based on the Fifth Amendment. In

any event, Texas courts recognize claims based on the Fifth

Amendment for the same reason other lower courts do: This

Court (along with the Fifth Amendment’s text, history, and tradition) says they must.

23

Clause. At best, 50 separate jurisdictions will adopt

50 different approaches to enforcing (or ignoring) a

constitutional obligation that everyone agrees exists.

It will be, to borrow from Judge Oldham’s “thoughtful” 22 dissent, “as if the People never bothered to ratify the federal Takings Clause in the first place.” Pet.

Supp. App. at 78a.

But the People did ratify it—and this Court, up

to now, has enforced it. There is no reason to stop.

CONCLUSION

The Court should reverse.

Respectfully submitted.

ROBERT J. MCNAMARA

Counsel of Record

ANDREW H. WARD

CHRISTEN MASON HEBERT

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

22 O’Connor v. Eubanks, 83 F.4th 1018, 1029 (6th Cir. 2023)

(Thapar, J., concurring).

24

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, TX 75202

(469) 904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, TX 77004

(713) 533-1704

charles@irvineconner.com

Counsel for Petitioners

JANUARY 5, 2024