Petition for Writ of Certiorari — In Re Richard Devillier, et al., Petitioners

Supreme Court briefApr 24, 2026

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No. ___________

In The

Supreme Court of the United

States

IN RE RICHARD DEVILLIER, ET AL.,

Petitioners.

On Petition For A Writ Of Mandamus

To The United States District Court for the

Southern District of Texas

PETITION FOR A WRIT OF MANDAMUS

DANIEL H. CHAREST

Counsel of Record

ADRIENNE R. ALLEN

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, Texas 75202

469-904-4550

dcharest@burnscharest.com

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

Counsel for Petitioners

QUESTION PRESENTED

In DeVillier v. Texas, 601 U.S. 285 (2024), this

Court vacated the Fifth Circuit’s judgment and

remanded with instructions that, “[o]n remand,

DeVillier and the other property owners should be

permitted to pursue their claims under the Takings

Clause through the cause of action available under

Texas law.” Id. at 293. This Court’s judgment directed

the lower courts to conduct “further proceedings

consistent with the opinion of this Court.” Following

remand, consistent with this Court’s mandate,

plaintiffs amended their complaint in the trial court

to include an additional claim under Texas common

law giving effect to the Takings Claus. But the district

court—rather than permitting Petitioners to pursue

their Takings Clause claims in federal court as this

Court directed—remanded the action to the four state

courts from which the State had first removed them.

The question presented is:

Whether a district court defies this Court’s

mandate when, instead of permitting plaintiffs to

pursue their federal Takings Clause claims in federal

court as this Court directed, it remands the entire

action to state court, stripping plaintiffs of the federal

forum this Court’s judgment contemplated.

PARTIES TO THE PROCEEDINGS BELOW

This case arises out of four separate state-court

actions that the State of Texas removed to the

Southern District of Texas, which then consolidated

the cases into one action. The plaintiffs in the

consolidated case, were: Richard DeVillier; Wendy

DeVillier; Steven DeVillier; Rhonda DeVillier; David

McBride; Angela McBride; Bert Hargraves; Barney

Threadgill; Crystal Threadgill; Barbara DeVillier;

David Ray; Gary Herman; Rhonda Glanzer; Chris

Barrow; Darla Barrow; Dennis Dugat; Laurence

Barron; Deanette Lemon; Jill White; Beverly Kiker;

Yale DeVillier (individually and as personal

representative of the Estate of Kyle H. DeVillier);

Charles Monroe; Jacob Fregia; Angela Fregia; Jerry

DeVillier; Mary DeVillier; Zalphia Hankamer; Larry

Bollich; Susan Bollich; Sheila Marino; William

Meissner; Taylor McBride; Brian Abshier; Kathleen

Abshier; Jina Daigle; Coulon DeVillier; Halley Ray

Moor Sr.; Halley Ray Moor Jr.; Sheila Moor; John

Rhame; Alex Hargraves; Tammy Hargraves; William

DeVillier; Kyle Wagstaff; Allison Wagstaff; Kevin

Sonnier; Eugenia Molthen; Bradley Moon; John

Roberts; Marilyn Roberts; Savanna Sanders; Robert

Brown; Tracey Brown; Josh Baker; Lee Blue; Russell

Brown; Margaret Carroll; Kevin Cormier; James

Davis; Melissa Davis; Maria Gallegos; Christopher

Ferguson; Angela Hughes; Robert Laird; Harold

Ledoux; Kacey Sandefur; Tifani Staner; Stephen

Stelly; Randall Stout; Patti Stout; Chris Day; Calvin

Hill; Michael Weisse; Julie Weisse; Eleanor Leonard;

Ivy Hamm; Claude Roberts; Bryan Olson; Caren

Nueman; Floyd Cline, Jr.; Kenneth Coleman; Haylea

Barrow; Carol Roberts; Jenica Vidrine; Charles

iii

Collier; Sharon Crissey; James Brad Crone; Heather

Coggin; James Coggin; Clovis Melancon; Leroy

Speights; Crossroads Asphalt Preservation, Inc.; Fesi

Energy, LLC; Brian Fischer; Curtis Laird; Devon

Boudreaux; Richard Belsey; Sharon Clubb; Janet

Dancer; Porter May; Cindy Perez; Cecile Jimenez;

Scott Hamric; Bruce Hinds; Tina Hinds; William

Olivier; Esteban Lopez; Billy Stanley; Candace

Abshier; Sean Fillyaw; Autumn Minton; Brandon

Sanders; Rodney Badon; Charlie Carter; Myra

Wellons; Jerry Stepan; Bryan Mills; Cat 5 Resources

LLC; Joan Jeffrey; Randy Brazil; Monica Brazil;

Herbert Dillard; Kerry Dillard; Southeast Texas

Olive, LLC; and Gulf Coast Olive Investments, LLC.

These plaintiffs were the appellees in the Fifth

Circuit below, and all of them join in this Petition. The

sole defendant in the district court was the State of

Texas, which was the appellant in the Fifth Circuit

below.

None of the petitioners has any parent corporation

and no publicly held corporation holds more than 10%

of the stock in any petitioner.

The following respondents are the judges of the

United States District Court for the Southern District

of Texas who participated in the decision below:

Judge Jeffrey V. Brown and Magistrate Judge

Andrew Edison.

STATEMENT OF RELATED CASES

Devillier v. State of Texas (Texas D. Ct. Chambers

County), No. 20DCV0300 (removed to federal court

June 29, 2020).

Sonnier v. State of Texas (Texas D. Ct. Chambers

County), No. 20DCV0792 (removed to federal court

December 16, 2020).

Se. Texas Olive, LLC v. State of Texas (Texas D.

Ct. Liberty County), No. 21DC-CV-00071 (removed to

federal court April 7, 2021).

Boudreaux v. State of Texas (Texas D. Ct.

Jefferson County), No. E-207211 (removed to federal

court April 7, 2021).

Devillier v. State of Texas (S.D. Tex.), No. 3:20-cv00223 (still pending).

Sonnier v. State of Texas (S.D. Tex.), No. 3:20-cv00379 (consolidated with case No. 20-cv-00223 May

17, 2021).

Se. Texas Olive, LLC v. State of Texas (S.D. Tex.),

No. 3:21-cv-00104 (consolidated with case No. 20-cv00223 May 17, 2021).

Boudreaux v. State of Texas (S.D. Tex.), No. 4:21cv-01521 (consolidated with case No. 20-cv-00223

May 17, 2021).

Devillier v. State of Texas (5th Cir.), No. 21-40750

(judgment entered November 23, 2022).

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF MANDAMUS ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED ........................................ 2

STATEMENT ............................................................. 2

REASONS FOR GRANTING THE PETITION ........ 7

I. Issuance of a Writ of Mandamus is

Necessary to Compel the District Court’s

Compliance with this Court’s Mandate .......... 8

II. The District Court’s Deviation from this

Court’s Mandate Presents an Exceptional

Circumstance Warranting Review ............... 11

A. The

Court’s

DeVillier

Opinion

necessarily resolved the issue of federal

jurisdiction ............................................... 11

B. The district court violated this Court’s

mandate by reopening issues this Court

disposed of in its Opinion ........................ 16

III. Adequate Relief Cannot be Obtained in Any

Other Form or From Any Other Court ......... 19

CONCLUSION ......................................................... 20

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS,

GALVESTON DIVISION, ENTERED

APRIL 9, 2026 ........................................................1a

APPENDIX B — MEMORANDUM AND

RECOMMENDATION OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS,

GALVESTON

DIVISION,

FILED

JANUARY 5, 2026 .................................................4a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED NOVEMBER 13,

2024 ......................................................................22a

APPENDIX D — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED SEPTEMBER 30,

2024 ......................................................................27a

APPENDIX E — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED SEPTEMBER 26,

2024 ......................................................................29a

APPENDIX F — OPINION OF THE

SUPREME COURT OF THE UNITED

STATES, FILED APRIL 16, 2024 .......................31a

vii

APPENDIX G — ORAL ARGUMENT

TRANSCRIPT (FINAL), DATED JANUARY

16, 2024 ................................................................39a

APPENDIX H — SECOND AMENDED

MASTER COMPLAINT IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS,

GALVESTON

DIVISION,

FILED

SEPTEMBER 9, 2024 ........................................115a

APPENDIX I — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED NOVEMBER 23,

2022 ....................................................................169a

APPENDIX J — REVISED OPINION OF

THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED JANUARY 10, 2023 ...............................172a

APPENDIX K — EN BANC POLL OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT, FILED

MARCH 23, 2023 ...............................................174a

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Baytown v. Schrock,

645 S.W.3d 174 (Tex. 2022) ...................................13

Delaware, L. & W.R. Co. v. Rellstab,

276 U.S. 1 (1928) ................................................1, 19

Dep’t of Homeland Sec. v. D.V.D.,

145 S. Ct. 2627 (2025) ............................................19

DeVillier v. Texas,

53 F.4th 904 (5th Cir. 2023) ................................3, 4

DeVillier v. Texas,

63 F.4th 416 (5th Cir. 2023) ....................................4

DeVillier v. Texas,

132 F.4th 739 (5th Cir. 2023) ..................................5

Devillier v. Texas,

132 F.4th 746 (5th Cir. 2024) ........................1, 6, 17

DeVillier v. Texas,

601 U.S. 285 (2024) ............. 1-5, 7, 11-13, 17, 18, 20

Fisher v. Hurst,

333 U.S. 147 (1948) ................................................19

Gaines v. Caldwell,

148 U.S. 228 (1893) ................................................18

General Atomic Co. v. Felter,

436 U.S. 493 (1978) ...................................... 8, 18, 19

In re Potts,

166 U.S. 263 (1897) ..................................................9

In re Sanford Fork & Tool Co.,

160 U.S. 247 (1895) ........................................7, 9, 20

Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

535 U.S. 613 (2002) ................................................11

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149 (1908) ................................................14

NAACP v. Alabama ex rel. Patterson,

360 U.S. 240 (1959) ................................................10

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574 (1999) ................................................15

Sibbald v. U.S.,

37 U.S. 488 (1838) ..................................................18

Sprague v. Ticonic Nat. Bank,

307 U.S. 161 (1939) ................................................14

U.S. v. Terminal R.R. Ass’n of St. Louis,

236 U.S. 194 (1915) ..................................................9

U.S. v. U.S. Dist. Ct. for S. Dist. of N.Y.,

334 U.S. 258 (1948) .................................... 1, 8, 9, 19

United States v. Fossatt,

62 U.S. 445 (1858) ....................................................7

United States v. Haley,

371 U.S. 18 (1962) ................................ 10, 14, 16, 17

Utah Pub. Serv. Comm’n v. El Paso Nat. Gas Co.,

395 U.S. 464 (1969) ..................................................9

Vendo Co. v. Lektro-Vend Corp.,

434 U.S. 425 (1978) ..................................................9

Constitutional Provisions

U.S. Const. amend. V .....................2, 3, 5, 6, 13-15, 17

U.S. Const. amend. XIV ..............................................3

Statutes and Rules

28 U.S.C. § 1331 ........................................................17

28 U.S.C. § 1447(d)................................................7, 19

28 U.S.C. § 1651(a)........................................ 1, 2, 8, 19

28 U.S.C. § 1992(b)......................................................3

42 U.S.C. § 1983 ....................................................4, 14

Sup. Ct. R. 20.1 .....................................................8, 20

PETITION FOR A WRIT OF MANDAMUS

Petitioners seek an extraordinary writ of

mandamus issue to compel the United States District

Court for the Southern District of Texas’ compliance

with this Court’s mandate in DeVillier v. Texas, 601

U.S. 285 (2024). Specifically, this Court should order

the Southern District to Recall and Vacate its order

remanding to the state courts of Texas.

OPINIONS BELOW

The district court’s order adopting the

magistrate’s report and recommendation, App. 1a–3a,

is unreported. The recommendation of the magistrate

judge, App. 4a–21a, is also unreported. The opinion of

the court of appeals on remand from this Court, App.

22a–26a, is reported at 132 F.4th 746.

JURISDICTION

Two terms ago, this Court issued its decision in

DeVillier v. Texas, 601 U.S. 285 (2024), vacating the

judgment of the court of appeals and remanding for

further proceedings “in accordance with [its] opinion.”

On remand, the United States District Court for the

Southern District of Texas failed to enforce the

mandate of this Court. This Court possesses

jurisdiction to enforce the integrity of its decisions

and mandates pursuant to the All Writs Act, 28

U.S.C. § 1651(a); Delaware, L. & W.R. Co. v. Rellstab,

276 U.S. 1, 4 (1928); U.S. v. U.S. Dist. Ct. for S. Dist.

of N.Y., 334 U.S. 258, 263–64 (1948).

This petition is timely filed soon after the date of

the district court’s order adopting the magistrate’s

report and recommendation. App. 1a–3a.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution

provides, in relevant part, “nor shall private property

be taken for public use without just compensation.”

The All Writs Act, 28 U.S.C. § 1651(a), provides:

“The Supreme Court and all courts established by Act

of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.”

STATEMENT

This case returns to this Court because the district

court failed to enforce this Court’s mandate in

DeVillier v. Texas, 601 U.S. 285 (2024). In the

associated Opinion, this Court summarized the

factual allegations:

Richard DeVillier and more than 120

other petitioners own property north of

U.S. Interstate Highway 10 between

Houston and Beaumont, Texas. The

State of Texas undertook several

projects to facilitate the use of that

portion of the highway as a floodevacuation route. It installed a roughly

3-foot-tall barrier along the highway

median to act as a dam, preventing

stormwater from covering the south side

of the road.

In August 2017, Hurricane Harvey

brought heavy rainfall to southeast

Texas. The new median barrier

performed as intended, keeping the

south side of the highway open. But, it

also flooded petitioners’ land to the

north, displacing them from their

homes, damaging businesses, ruining

crops, killing livestock, and destroying

family heirlooms. The same thing

happened during Tropical Storm Imelda

in 2019.

Devillier, 601 U.S. at 288. After being flooded twice,

Petitioners filed four separate lawsuits across three

counties in Texas state courts asserting inverse

condemnation claims against the State under both

the Texas Constitution and the Takings Clause of the

Fifth Amendment.

The State removed the four cases to federal court,

where they were consolidated before Judge Jeffrey V.

Brown of the Southern District of Texas. After

consolidation, petitioners filed a First Amended

Master Complaint, and the State moved to dismiss.

Magistrate Judge Andrew Edison issued a

Memorandum and Recommendation that the State’s

motion be denied, and Judge Brown adopted that

recommendation in its entirety. The district court

certified its order for interlocutory appeal pursuant to

28 U.S.C. § 1992(b), which the Fifth Circuit granted.

On January 10, 2023, the Fifth Circuit vacated the

district court’s order and held 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.”

DeVillier v. Texas, 53 F.4th 904, 904 (5th Cir. 2023)

(per curiam).1 Rehearing en banc was denied. Two

judges on the original panel (Judges Higginbotham

and Higginson) filed opinions concurring with the

Fifth Circuit’s denial of the rehearing en banc, and

Judge Oldham dissented, joined by Judges Smith,

Elrod, Englehardt, and Wilson.

Judge Higginbotham’s concurrence framed the

decision as jurisdictional: in the absence of a

“jurisdictional grant such as 42 U.S.C. § 1983,”

federal courts have no power to hear Takings Clause

claims against States. DeVillier v. Texas, 63 F.4th

416, 417-20 (5th Cir. 2023) (Higginbotham, J.,

concurring in denial of reh’g en banc). Under his view,

the “pathway for enforcement” in state takings cases

runs exclusively through the state courts to this

Court. Id. at 418-19.

This Court granted certiorari “to decide whether a

property owner may sue for just compensation

directly under the Takings Clause.” DeVillier, 601

U.S. at 290. Writing for a unanimous court, Justice

Thomas declined to answer the question presented on

the grounds of constitutional avoidance. The Court

explained that the question presented “assumes the

property owner has no separate cause of action under

In its original opinion filed November 23, 2022, the Fifth

Circuit went further than its revised opinion: after holding that

the Takings Clause provides no right of action against a state,

the court vacated the district court’s decision “for want of

jurisdiction” and remanded “with instructions to return this case

to the state courts.” App. 170a. Both Petitioners and the State of

Texas moved for rehearing. The panel then issued its revised

opinion, simply remanding to the district court “for further

proceedings.” Devillier v. State, 53 F.4th 904, 904 (5th Cir. 2023).

which to bring a claim based on the Takings Clause,”

and that premise was unsupported on the record

before the Court because the State had represented

that the rights afforded under the Takings Clause

were protected by Texas common law. Id. at 288. At

oral argument, the State had represented that its

“state-law inverse-condemnation cause of action

provides a vehicle for takings claims based on both the

Texas constitution and the Takings Clause,” and that

it would not oppose amendment of the complaint to

add such a claim. Id. at 293 (citing Tr. of Oral Arg. 4041, 59-61, 64). On that basis, the Court vacated the

Fifth Circuit’s judgment and remanded “for further

proceedings consistent with this opinion,” so that

“DeVillier and the other property owners . . . be

permitted to pursue their claims under the Takings

Clause through the cause of action available under

Texas law.” Ibid.

After the Court’s mandate issued, Petitioners

amended their complaint consistent with this Court’s

directive. App. 160a–167a. Count 6 of the operative

complaint asserts a Texas common-law cause of

action seeking compensation for violation of the Fifth

Amendment Takings Clause “in addition to, and in

the alternative to,” Petitioners’ existing direct federal

claim.

On September 25, 2024 (after having the case sit

idle for months), the Fifth Circuit—without briefing

or argument—ordered the district court to remand

the action to state court. DeVillier v. Texas, 132 F. 4th

739, 739 (5th Cir. 2023) (per curiam). Petitioners

promptly filed an emergency motion to recall the

mandate. The Fifth Circuit granted the motion and

directed the parties to submit letter briefs “explaining

what this Court should now do in light of the Supreme

Court’s decision.” App. 27a–28a.

After briefing and a status conference, the Fifth

Circuit issued a new order remanding to the district

court “for further proceedings consistent with the

decision of the Supreme Court” but added a comment

on subject matter jurisdiction: “[t]he withdrawal of

our previous order should not be interpreted as a

rejection of the validity of returning the litigation to

state court. Instead, it leaves that decision to the

district court.” Devillier v. Texas, 132 F.4th 746, 747

(5th Cir. 2024) (per curiam).

Judge Higginbotham concurred to the per curiam

order, stating that, in his view, “[i]t is now settled that

in providing rights of action for takings by the state,

Texas is discharging its obligations under the Fifth

Amendment and the state removal is now without

jurisdictional legs to stand on.” Ibid. (Higginbotham,

J., concurring).

Within a week of the Fifth Circuit’s order, the

State moved to remand the case to state court. On

January 5, 2026, after briefing and argument,

Magistrate Judge Edison issued a Memorandum and

Recommendation that the consolidated cases be

remanded to the state courts of Chambers, Jefferson,

and Liberty Counties. App. 20a–21a. Petitioners

timely filed objections. App. 3a. On April 9, 2026,

Judge Brown adopted Magistrate Judge Edison’s

Memorandum and Recommendation “in its entirety

as the holding of the court” and ordered the cases

remanded. Ibid.

This petition timely followed.

REASONS FOR GRANTING THE PETITION

This Court protected Petitioners’ substantive

federal rights without deciding whether the Takings

Clause itself provides a procedural vehicle for

bringing those claims by identifying an alternative

path—the Texas state-law inverse-condemnation

cause of action. The Court ordered that Petitioners

“be permitted to pursue their claims under the

Takings Clause” in the existing federal proceeding.

DeVillier, 601 U.S. at 293. The district court has now

remanded the case to state court, disregarding that

instruction entirely. Because the remand order on a

substantive basis is insulated from appellate review

under 28 U.S.C. § 1447(d), a writ of mandamus to

execute the mandate of this Court is the only remedy.2

The Court has long recognized that mandamus

relief is appropriate where a lower court “does not

proceed to execute the mandate, or disobeys or

mistakes its meaning.” United States v. Fossatt, 62

U.S. 445, 446 (1858). Where a lower court “mistakes

or misconstrues the decree of this Court, and does not

give full effect to the mandate, its action may be

controlled. . . by a writ of mandamus to execute the

2 Although concluding that a claim under the U.S. Constitution

does not give rise to federal subject matter jurisdiction is plainly

wrong, Petitioners do not seek substantive review of the district

court’s jurisdictional analysis except to the extent that analysis

contravenes this Court’s Opinion in Devillier v. Texas, 601 U.S.

285 (2024), and the mandate that followed. Petitioners seek only

to correct the district court’s order insofar as it “mistakes or

misconstrues the decree of this [Court], and does not give full

effect to the mandate.” In re Sanford Fork & Tool Co., 160 U.S.

247, 255–56 (1895). Limited to this extent, § 1447(d) does not bar

mandamus in this instance. See Section III, supra.

mandate of this Court.” General Atomic Co. v. Felter,

436 U.S. 493, 497 (1978) (per curiam) (internal

quotation marks omitted). Where, as here, the lower

court “has again done precisely what [this Court] held

that it lacked the power to do,” id. at 496, this Court’s

precedents dictate that the lower court should be

instructed to “conform” to this Court’s “previous

judgment.” Id. at 497. Mandamus is necessary to

ensure this Court’s mandate is followed.

Issuance of a Writ of Mandamus is

Necessary to Compel the District Court’s

Compliance with this Court’s Mandate.

The All Writs Act authorizes this Court to issue

writs “necessary or appropriate in aid of [its]

respective jurisdiction[] and agreeable to the usages

and principles of law.” 28 U.S.C. § 1651(a). Under this

Court’s rules, a petition for such a writ must show (1)

that it will be in aid of this Court’s appellate

jurisdiction, (2) that exceptional circumstances

warrant the exercise of this Court’s discretionary

powers, and (3) that adequate relief cannot be

obtained in any other form or from any other court.

Sup. Ct. R. 20.1.

This Court has recognized that mandamus

provides appropriate relief when a lower court

misconstrues or misapplies its mandate. U.S. v. U.S.

Dist. Ct. for S. Dist. of N.Y., 334 U.S. 258, 264 (1948)

(“It is, indeed, a high function of mandamus to keep a

lower tribunal from interposing unauthorized

obstructions to enforcement of a judgment of a higher

court.”).

Once this Court has decided and remanded a case,

whatever was before the Court and disposed of by its

decree is finally settled. Vendo Co. v. Lektro-Vend

Corp., 434 U.S. 425, 427–28 (1978) (per curiam). A

lower court is “bound” by this Court’s mandate and

“must carry it into execution.” In re Sanford Fork &

Tool Co., 160 U.S. 247, 255 (1895). It cannot vary the

mandate, grant further relief beyond what was

remanded, or revisit any matter the appellate court

resolved. Ibid. Where a lower court misconstrues the

mandate or fails to give it full effect, this Court may

issue a writ of mandamus to compel compliance. Id.

at 255–56; see also, e.g., In re Potts, 166 U.S. 263, 268

(1897); United States v. United States District Court,

334 U.S. 258, 263-264 (1948).

That obligation extends beyond the mandate’s

literal terms and reaches its underlying purpose. In

U.S. v. Terminal R.R. Ass’n of St. Louis, 236 U.S. 194

(1915), this Court held that a district court’s decree

failed to give “proper effect” to its mandate even

though the decree was formally responsive to it. Id. at

205. The decree was susceptible to a reading that

stripped the defendant of lawful operations the prior

decision had never intended to curtail. Id. at 205-07.

Because the lower court misread the mandate in a

way that undermined the very purpose the prior

decision was designed to serve, modification was

required. Ibid.; see also Utah Pub. Serv. Comm’n v. El

Paso Nat. Gas Co., 395 U.S. 464, 476–77 (1969)

(vacating a divestiture decree that was formally

connected to the mandate’s terms but preserved

arrangements inconsistent with its purpose of

restoring competition). Just as the Terminal Road

district court turned a mandate aimed at remedying

unlawful conduct into a basis for prohibiting lawful

operations the prior decision assumed would

continue, the district court here has turned a mandate

designed to preserve Petitioners’ federal forum into a

basis for eliminating it entirely.

Where this Court’s prior disposition necessarily

resolved a question—even one not explicitly

discussed—the lower court has no authority to reopen

it. For example, in NAACP v. Alabama ex rel.

Patterson, 360 U.S. 240 (1959), this Court overruled a

contempt judgment a state court had issued against

the NAACP on the basis that the NAACP had failed

to comply with a production order and remanded for

“proceedings not inconsistent with this opinion.” Id.

at 242. On remand, the Alabama Supreme Court

“again affirmed” the contempt judgment by asserting

for the first time that the NAACP had actually failed

to comply with other aspects of the production order

as well, and that this independent noncompliance

justified the original judgment. Id. at 242-43. This

Court reversed, holding the State was bound by its

“previously taken position,” and the court below was

“foreclosed from re-examining the grounds of [this

Court’s] disposition.” Id. at 244. Similarly, in United

States v. Haley, 371 U.S. 18 (1962), this Court issued

mandamus after a district court attempted to reopen

the question of this Court’s jurisdiction over a prior

appeal. Id. at 19–20. The Court held that its earlier

per curiam decision had “necessarily decided” the

jurisdictional question, and the district court was

therefore foreclosed from revisiting it. Ibid.

As explained below, the district court reopened the

jurisdictional determination, even though it was

necessarily resolved by the Court’s Opinion. A writ of

mandamus is necessary to ensure the district court’s

compliance with this Court’s mandate in DeVillier v.

Texas, 601 U.S. 285 (2024).

II. The District Court’s Deviation from this

Court’s Mandate Presents an Exceptional

Circumstance Warranting Review.

The district court clearly and substantially

departed from the mandate of this Court by ordering

remand of the case to Texas state courts after finding

there is no subject matter jurisdiction over

Petitioners’ federal constitutional claims. The effect of

the district court’s error is to deny Petitioners the

right to proceed in the federal forum to which the

State itself removed them and to which this Court

recognized they are entitled—and to deliver to the

State the “unfair tactical advantage” this Court has

warned against. See Lapides v. Bd. of Regents of Univ.

Sys. of Ga., 535 U.S. 613, 621 (2002).

A. The Court’s DeVillier Opinion necessarily

resolved the issue of federal jurisdiction.

This Court’s opinion leaves no room for the

conclusion that its avoidance of the direct-cause-ofaction question divested the district court of subjectmatter jurisdiction. The text of the opinion confirms

that its reasoning contemplated that Petitioners’

federal constitutional rights would be addressed:

“Texas law provides a cause of action that allows

property owners to vindicate their rights under the

Takings Clause.” DeVillier, 601 U.S. at 293 (emphasis

added). And, as the state-law cause of action allows

the vindication of the Takings Clause, the Court

vacated the Fifth Circuit’s judgment “so that

Devillier’s claims may proceed under Texas’ state-law

cause of action.” Ibid. (emphasis added). The Opinion

did not need to reach the question presented (whether

the Takings Clause provides a cause of action in its

own force), because that question “assumes the

property owner has no separate cause of action under

which to bring a claim based on the Takings Clause.”

Ibid. (emphasis added). The Court, in its Opinion,

found that assumption unsupported based on the

State’s assertion, at oral argument, that Texas

common law provides a cause of action through which

property owners may seek just compensation “based

on both the Texas Constitution and the Takings

Clause.” Ibid. The State’s motion—and the District

Court’s order—on remand ignores this central point

in direct contradiction to the Opinion.

At each step, the Opinion distinguished between

the federal substantive right from the procedural

vehicle used to vindicate it—and not once did the

Court suggest that the existence of a state-law

procedural vehicle divests the substantive claim of its

federal character.3 The procedural vehicle needed not

be further defined given the available state-law

vehicle. But the federal character of the claim

remained constant: the federal rights, provided by the

Takings Clause, were to be vindicated. If anything,

3 Indeed, the Court rejected the question presented because it

“assumes the property owner has no separate cause of action

under which to bring a claim based on the Takings Clause.”

DeVillier, 601 U.S. at 292; see ibid. (noting “constitutional

concerns do not arise when property owners have other ways to

seek just compensation”).

the Opinion demands the opposite interpretation that

the district court reached because the Court expressly

rejected “[t]he premise that Texas left DeVillier with

no cause of action to obtain the just compensation

guaranteed by the Takings Clause.” DeVillier, 601

U.S. at 293 (emphasis added).

More to the point of deviation from the Court’s

Opinion, the State represented to the Court (and the

Court relied on that representation in its Opinion)

that the case could continue in the district court

repeatedly at oral argument. Devillier, 601 U.S. at

293. For example, Justice Sotomayor asked, “if

[Petitioners] go back down and say to the district

court, this has been remanded to the district court, all

we want is just compensation under the Texas

Constitution and the Fifth Amendment under

[Baytown v. Schrock, 645 S.W.3d 174 (Tex. 2022)],

that’s okay and you’re not going to resist that?” App.

92a. The State affirmed, “we would not resist that,

Your Honor.” Ibid. The State also told the Court that

the federal Takings Clause claim could be pursued

“under the Texas cause of action in a Texas court or

here. . . in federal court.” App. 71a. And the Chief

Justice asked the State to clarify that the substantive

right at issue is “a federal right, right?” Ibid. Again,

the State agreed. App. 72a. When Justice Gorsuch

asked whether the State would oppose leave to

amend, the State answered: “On behalf of the State of

Texas, we would not oppose that in the district court.”

App. 88a. On remand, Petitioners did exactly what

the Opinion contemplated. But the State moved—and

the district court ordered—the exact opposite.

The jurisdictional question was not lurking in the

case unnoticed in the background. Before reaching

this Court, it was the central issue on which the Fifth

Circuit decided the case and on which the en banc

court divided.4 As such, the Court was squarely

presented with the argument that federal courts lack

jurisdiction over Petitioners’ Takings claims, and its

disposition—vacating the Fifth Circuit’s judgment

and remanding for further proceedings on the

merits—is irreconcilable with the district court’s

current position (and the Higginbotham concurrence

on the order remanding to the district court). See

Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 168

(1939) (holding an issue was not disposed of by prior

mandate because “[i]t was neither before the Circuit

Court of Appeals nor before this Court.”); Haley, 371

U.S. at 19 (determining scope of prior mandate “[i]n

light of the issues tendered in the papers filed on that

appeal”). More to the point, had federal subject matter

jurisdiction been absent, the Court could not have

remanded for merits proceedings; it would have been

required to dismiss.5

4 See, e.g., App. 169a–171a (vacating district court order denying

motion to dismiss and instructing district court to dismiss for

want of jurisdiction); App. 177a (Higginbotham, J., concurring in

denial of reh’g en banc) (arguing absence of a “jurisdictional

grant such as 42 U.S.C. § 1983” requires remand to state court).

5 Had there been no subject matter jurisdiction over Petitioner’s

federal takings claims brought under the Fifth Amendment (a

question that answers itself), the Court should have dismissed

for want of jurisdiction, as the court of appeals (wrongly) did in

the first instance on appeal. See App. 170a; Louisville &

Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (declining

to reach merits where jurisdiction is lacking, even if the parties

The Court’s disposition did not require it to reach

the question of whether the Takings Clause—

standing alone—provides a cause of action. But it

could have affirmed the result below (dismissal of the

Fifth Amendment claim as pled) without adopting the

Fifth Circuit’s reasoning and noting Petitioners’

ability to amend.6 It did not do that either. Instead,

the Court vacated the judgment entirely. The Court’s

choice to vacate rather than affirm on narrow grounds

confirms that the Fifth Circuit’s disposition—which

would have ended Petitioner’s federal claims—was

not consistent with the Court’s analysis.

Finally, the Court’s resolution of the issue also

eliminated the Catch-22 that the Fifth Circuit’s panel

opinion had created. The effect of the panel opinion

was that any plaintiff bringing a Takings Clause

claim in Texas state court was susceptible to losing

their claim, because “the State removes [and] the

have not questioned it, and ordering the case be “remitted to the

circuit court with instructions to dismiss the suit for want of

jurisdiction”); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999) (“[S]ubject-matter delineations must be policed

by the courts on their own initiative even at the highest level.”).

And while Petitioners do not contend that this Court’s silence on

a jurisdictional defect categorically forecloses a lower court from

raising one, that general proposition has no application here.

The jurisdictional argument stood as a central issue below and

the Court vacated rather than affirmed.

6 Because this case reached the Court on interlocutory appeal,

the disposition of the certified question would not, by itself, have

required final resolution of the entire case. Petitioners’ due

process claims and state constitutional claims remained pending

in the district court and were never at issue in the appeal.

federal court must assert jurisdiction and dismiss the

claim with prejudice[.]” App. 210a. (Oldham, J.,

dissenting). “Likewise if the landowner tries to bring

suit originally in federal district court.” App. 210a–

211a. This Court resolved that problem by

recognizing federal subject-matter jurisdiction over

Takings Clause claims even when brought through

the Texas state-law vehicle—ensuring that the State

could not use removal to extinguish the very claim it

brought into federal court. The district court’s remand

order not only undoes that resolution but also entirely

reverses the effect of this Court’s Opinion and

mandate.

B. The district court violated this Court’s

mandate by reopening issues this Court

disposed of in its Opinion.

When this Court vacates a judgment and remands

for further proceedings consistent with its opinion, its

disposition necessarily resolves every issue on which

the vacated judgment rested—including jurisdiction.

Haley, 371 U.S. at 19–20. The lower courts had no

authority to reopen the issue of federal jurisdiction

over Petitioners’ Takings Clause claims on remand,

let alone to re-urge and adopt the same reasoning the

State pressed before this Court and that this Court’s

vacatur had foreclosed.

As demonstrated above, this Court’s Opinion

necessarily contemplates federal jurisdiction over

both of Plaintiffs’ Takings Clause claims. By vacating

the court of appeals’ prior decision, this Court left

intact only the district court’s order which both denied

the State’s motion to dismiss Petitioners’ federal

Takings Clause claim and concluded that Petitioners

could proceed directly under the U.S. Constitution.

That claim—a federal constitutional claim—

conferred federal question jurisdiction. It existed, it

remained, and it provided subject matter jurisdiction

in the district court after vacatur of the court of

appeals’ judgment. All this Court (purposefully) held

in the DeVillier Opinion was that, with the addition

of a Texas common law claim based on the Takings

Clause, the question of “whether a plaintiff has a

cause of action arising directly under the Takings

Clause” is not necessary for decision. DeVillier, 601

U.S. at 292. The district court mistook this Court’s

constitutional avoidance for a substantive ruling

against the federal constitutional claim.

Yet, when the Fifth Circuit issued its revised

remand order, Judge Higginbotham wrote separately

to declare that it was now “settled” that “the state

removal is now without jurisdictional legs to stand

on.” Devillier, 132 F.4th at 747 (citing DeVillier, 601

U.S. at 292-93). The articulated basis for remand to

the state courts, as set out in Magistrate Edison’s

Memorandum and Recommendation, rested heavily

on the Higginbotham concurrence. App. 12a, 18a.

The district court’s remand order does not survive

scrutiny under the mandate rule, which applies with

full force to jurisdictional findings implicit in the

Court’s disposition. Haley, 371 U.S. at 20. The

analysis that the Higginbotham concurrence offers in

support of a contrary conclusion—that a state’s

fulfillment of its Fifth Amendment obligations

through a state-law vehicle, eliminates federalquestion jurisdiction under § 1331—is the same

analysis underlying the earlier judgment this Court

vacated. The district court, by adopting it, has done

exactly what this Court’s mandate was designed to

prevent: it has reinstated the result this Court

vacated, through reasoning this Court had every

occasion to adopt and expressly vacated. See Sibbald

v. U.S., 37 U.S. 488, 492 (1838) (“Whatever was before

the Court, and is disposed of, is considered as finally

settled.”). With all due respect to the district court, a

lower court cannot smuggle in a result this Court has

previously rejected simply by routing the rejected

analysis through a different procedural vehicle. See

Feltner, 436 U.S. at 496–97 (issuing mandamus

where the lower court had “again done precisely what

we held that it lacked the power to do”).

The Court vacated the Fifth Circuit’s judgment

and remanded Petitioners’ case “for further

proceedings consistent with the opinion of this Court.”

DeVillier, 601 U.S. at 293. The premise on which this

Court avoided the cause-of-action question entirely is

that Petitioners have a viable path forward to exercise

a federal substantive right in federal court. A remand

to state court is not “consistent with” this Court’s

opinion. It is the opposite: it reinstates the very

disposition this Court vacated and strips the

Petitioners of the forum the State chose and in which

the State assured this Court the claims could proceed.

In this circumstance, mandamus relief is both

appropriate and imperative. See Gaines v. Caldwell,

148 U.S. 228, 244 (1893) (“[T]his court cannot, on

well-established rules and principles, permit the

circuit court, of its own motion, to go back of, or

subvert, what was settled by the opinion and mandate

in the present cases.”).

III. Adequate Relief Cannot be Obtained in

Any Other Form or From Any Other Court.

Petitioners cannot appeal the district court’s

remand order. 28 U.S.C. § 1447(d). But § 1447(d)’s bar

on appellate review does not limit this Court's

authority to enforce its own mandate under 28 U.S.C.

§ 1651(a).

Petitioners do not seek substantive review of the

district court’s jurisdictional analysis. They seek only

to correct the district court’s failure to give effect to

this Court’s mandate. Section 1447(d) does not reach

this narrower inquiry. See Fisher v. Hurst, 333 U.S.

147, 150 (1948) (“The only question before us on this

petition for a writ of mandamus is whether or not our

mandate has been followed.”); U.S. v. U.S. Dist. Ct. for

S. Dist. of N.Y., 334 U.S. at 265 (“The power to compel

obedience with the mandate turns on whether the

lower court has obstructed enforcement of it, not on

the collateral repercussions which enforcement may

entail.”).

Additionally, this Court’s authority under the All

Writs Act extends to the enforcement of past exercises

of jurisdiction, not merely the protection of future

ones. Delaware, L. & W.R. Co. v. Rellstab, 276 U.S. 1,

4 (1928); U.S. v. U.S. Dist. Ct. for S. Dist. of N.Y., 334

U.S. at 263–64. As this Court confirmed last Term, “a

claim that a lower court has failed to give effect to an

order of this Court is properly addressed here,” and a

party who has obtained judgment in this Court

“should not be required to go through that entire

process again to obtain execution of the judgment of

this Court.” Dep’t of Homeland Sec. v. D.V.D., 145 S.

Ct. 2627, 2630 (2025) (quoting Felter, 436 U.S. at 497).

Nor could Petitioners seek a writ of mandamus

similar to this one from the Fifth Circuit. Because this

Court’s work—the DeVillier Opinion—necessarily

resolved the question of federal jurisdiction over

Petitioners’ Takings Clause claims, it is for this

Court—and only this Court—to construe its own

mandate and to require compliance with it. Sanford

Fork, 160 U.S. at 255–56 (“[O]n the application for a

writ of mandamus . . . it is for this court to construe

its own mandate, and to act accordingly.”).

All three requirements of Supreme Court Rule

20.1 are therefore satisfied. Petitioners have (1) no

avenue of appellate review, (2) exceptional

circumstances warrant this court’s discretionary

powers, and (3) no other court has authority to enforce

this Court's mandate. The writ is the only remedy.

CONCLUSION

The petition for writ of mandamus should be

granted.

Respectfully submitted.

DANIEL H. CHAREST

Counsel of Record

ADRIENNE R. ALLEN

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, Texas 75202

469-904-4550

dcharest@burnscharest.com

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

S O U T H E R N D I S T R I C T O F T E XA S ,

G A LV E S T O N D I V I S I O N , E N T E R E D

APRIL 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — MEMOR A NDUM A ND

RECOMMENDATION OF THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

T E X A S , G A LV E S T O N D I V I S I O N ,

FILED JANUARY 5, 2026 . . . . . . . . . . . . . . . . . . . . 4a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

NOVEMBER 13, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 22a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . 27a

A PPEN DI X E — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 26, 2024 . . . . . . . . . . . . . . . . . . . . . . . 29a

APPENDIX F — OPINION OF THE SUPREME

COURT OF THE UNITED STATES, FILED

APRIL 16, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

Table of Appendices

Page

A P P EN DI X G — OR A L A R GU M EN T

T R A NS CR I P T ( F I NA L), DAT ED

JANUARY 16, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 39a

APPENDIX H — SECOND AMENDED MASTER

COMPLAINT IN THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DIST RICT OF T EX A S , GA LV EST ON

DIVISION, FILED SEPTEMBER 9, 2024 . . . . . 115a

A P P E N DI X I — O P I N I O N O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

NOVEMBER 23, 2022 . . . . . . . . . . . . . . . . . . . . . . 169a

APPENDIX J — REVISED OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

JANUARY 10, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 172a

APPENDIX K — EN BANC POLL OF THE

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

MARCH 23, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 174a

Appendix

A UNITED STATES

APPENDIX A — ORDER

OF THE

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, GALVESTON DIVISION,

ENTERED APRIL 9, 2026

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

3:20-cv-223

(253rd Judicial District Court of Chambers County,

20-DCV-0300)

RICHARD ALLEN DEVILLIER, et al.,

Plaintiffs,

STATE OF TEXAS,

Defendant.

3:20-cv-379

(344th Judicial District Court of Chambers County,

20-DCV-0792)

KEVIN SONNIER, et al.,

Plaintiffs,

STATE OF TEXAS,

Defendant.

Appendix A

4:21-cv-1521

(172d Judicial District Court of Jefferson County,

E-207211)

DEVON BOUDREAUX, et al.,

Plaintiffs,

STATE OF TEXAS,

Defendant.

3:21-cv-104

(253rd Judicial District Court of Liberty County,

21DC-CV-00071)

SOUTHEAST TEXAS OLIVE, LLC, et al.,

Plaintiffs,

STATE OF TEXAS,

Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S

MEMORANDUM AND RECOMMENDATION

On September 2, 2020, all non-dispositive and

dispositive pretrial matters in this consolidated case were

referred to United States Magistrate Judge Andrew M.

Edison under 28 U.S.C. § 636(b)(1)(A)–(B). Dkt. 14. Judge

Edison filed a memorandum and recommendation on

January 5, 2026, recommending that The State of Texas’s

motion to remand to state court, Dkt. 174, be granted.

Dkt. 186.

Appendix A

On January 20, 2026, the plaintiffs filed objections

to the memorandum and recommendation. Dkt. 187.

In accordance with 28 U.S.C. § 636(b)(1)(C), this court

is required to “make a de novo determination of those

portions of the [magistrate judge’s] report or specified

proposed findings or recommendations to which objection

[has been] made.” After conducting this de novo review,

the court may “accept, reject, or modify, in whole or

in part, the findings or recommendations made by the

magistrate judge.” Id.; see also Fed. R. Civ. P. 72(b)(3).

The cour t has considered the objections, the

memorandum and recommendation, and the record.

The court accepts Judge Edison’s memorandum and

recommendation dated January 5, 2026, Dkt. 186, and

adopts it as the opinion of the court. It is therefore ordered

that:

(1) Judge Edison’s memorandum and recommendation,

Dkt. 186, is approved and adopted in its entirety

as the holding of the court; and

(2) These four consolidated cases are remanded to

the state courts of Chambers, Jefferson, and

Liberty Counties from which they were removed,

as reflected on the first page of this order.

Signed on Galveston Island this 9th day of April, 2026.

/s/ Jeffrey Vincent Brown

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE

APPENDIX B Appendix

— MEMORANDUM

AND

RECOMMENDATION OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF TEXAS, GALVESTON DIVISION,

FILED JANUARY 5, 2026

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

CIVIL ACTION NO. 3:20-CV-00223

RICHARD ALLEN DEVILLIER, et al.,

Plaintiffs,

STATE OF TEXAS,

Defendant.

MEMORANDUM AND RECOMMENDATION

I would not be surprised if one day there is a law school

class devoted entirely to this case. That is because the

instant matter presents a myriad of fascinating procedural

and substantive legal issues. It is not every day that a

case pending in Galveston, Texas ends up before the

United States Supreme Court. But that is exactly what

has happened here.

I have spent an enormous amount of time and effort

over the past several years working on this case. The

Appendix B

lawyering on both sides has been superb. I would love

nothing more than to continue working on this case

through its conclusion. Alas, I do not think this case can

remain in federal court. After reviewing the Supreme

Court’s recent opinion in this case, as well as the parties’

briefing on the jurisdictional issues, I am convinced that

federal question jurisdiction is lacking. I must, therefore,

recommend that the State of Texas’s motion to remand

be granted, and these consolidated cases be returned to

the state courts from which they originated.

BACKGROUND

United States Interstate Highway 10 is a major

transportation corridor, providing the main connection

between Houston and the Southeast portion of the United

States. During heavy rainfall events, stormwater draining

from north to south (toward the Gulf of Mexico) would

inundate I-10 between Houston and Beaumont, making

it impassable. To facilitate the use of I-10’s eastbound

lanes as an evacuation route during periods of flooding,

the Texas Department of Transportation installed a

32-inch impenetrable, solid concrete traffic barrier on

the highway’s centerline. The barrier was intended to

act as a dam, protecting the southside of the freeway

from flooding by keeping all rainfall on the northside.

According to Plaintiffs, the barrier did its job. During

Hurricane Harvey and Tropical Storm Imelda, two storms

that hit the Gulf Coast over the last decade, rainfall that

would otherwise run overtop the roadway and continue

downstream towards the Gulf of Mexico instead was

stopped by the barrier. This allowed the south side of the

Appendix B

highway to remain open. But the barrier caused Plaintiffs’

properties on the northside of I-10 to flood, ultimately

displacing Plaintiffs from their homes, ruining crops,

killing livestock, and destroying personal property.

Plaintiffs originally filed four putative class actions

against the State in Texas state court—two in Chambers

County, one in Jefferson County, and one in Liberty

County. In each lawsuit, Plaintiffs argue that the

State’s construction of the solid concrete barrier along a

stretch of I-10 caused their properties to be inundated,

taken, destroyed, and damaged without their consent or

compensation in violation of both the Texas and United

States Constitutions.

The State removed the four cases to federal court,

and they were eventually transferred to the Galveston

Division of the Southern District of Texas. In the interests

of judicial economy and efficiency, I consolidated all the

actions into this case. After Plaintiffs filed an amended

pleading, the State moved to dismiss Plaintiffs’ Fifth

Amendment Takings Clause claim for several independent

reasons, including that Plaintiffs had no cause of action

arising directly under the Takings Clause. The district

court denied the motion to dismiss, but allowed for a

permissive interlocutory appeal.

In a three-sentence opinion, the Fifth Circuit held

“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.” Devillier v. State, 53 F.4th 904 (5th Cir. 2023).

Appendix B

After the Fifth Circuit refused to hear the case en banc,

the Supreme Court “granted certiorari to decide whether

a property owner may sue for just compensation directly

under the Takings Clause.” DeVillier v. Texas, 601 U.S.

285, 290, 144 S. Ct. 938, 218 L. Ed. 2d 268 (2024). Writing

for a unanimous court, Justice Clarence Thomas declined

to reach the question presented because it “would be

imprudent to decide [what would happen if a property

owner had no cause of action to vindicate his rights under

the Takings Clause] without satisfying ourselves of the

premise that there is no cause of action.” Id. at 292. Noting

“that constitutional concerns do not arise when property

owners have other ways to seek just compensation,” id. at

292, the Supreme Court explained that Texas’s “statelaw

inverse-condemnation cause of action provides a vehicle

for takings claims based on both the Texas Constitution

and the Takings Clause.” Id. at 293. The Supreme Court

concluded that, on remand, Plaintiffs “should be permitted

to pursue their claims under the Takings Clause through

the cause of action available under Texas law.” Id.

After mandate issued, Plaintiffs filed a Second

Amended Master Complaint (“Complaint”). See Dkt. 162.

The Complaint advances six counts: (1) a state inverse

condemnation claim under article 1, § 17 of the Texas

Constitution; (2) a federal inverse condemnation claim

under the United States Constitution’s Fifth Amendment

Takings Clause; (3) a Fourteenth Amendment procedural

due process claim; (4) a Fourteenth A mendment

substantive due process claim; (5) a request for declaratory

and injunctive relief; and (6) a state common law cause

of action seeking just compensation for violation of the

Appendix B

United States Constitution’s Fifth Amendment Takings

Clause.

The State has moved to remand the case to state court.

See Dkt. 174. Plaintiffs oppose. I held an oral argument to

fully explore the relevant legal issues. I now explain why

this case must be remanded to state court.

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction.

They possess only that power authorized by Constitution

and statute.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391

(1994). Accordingly, “doubts regarding whether removal

jurisdiction is proper should be resolved against federal

jurisdiction” and in favor of remand. Acuna v. Brown

& Root Inc., 200 F.3d 335, 339 (5th Cir. 2000). Where

Plaintiffs amend their “complaint following [the] suit’s

removal, a federal court’s jurisdiction depends on what

the new complaint says.” Royal Canin U.S.A., Inc. v.

Wullschleger, 604 U.S. 22, 30 (2025), 145 S. Ct. 41, 220 L.

Ed. 2d 289.

The two primary sources of federal district courts’

original jurisdiction are diversity jurisdiction and federal

question jurisdiction. See U.S. Const., art. III, § 2, cl. 1;

28 U.S.C. §§ 1331-32. Diversity jurisdiction allows

district courts to decide cases that are between citizens

of different states when the amount in controversy

involves more than $75,000. See 28 U.S.C. § 1332(a).

Federal question jurisdiction exists where a claim arises

Appendix B

“under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. Because the parties agree that

diversity jurisdiction is lacking, this court’s ability to hear

this matter turns on whether there is federal question

jurisdiction.

“ The presence or absence of federal-question

jurisdiction is governed by the well-pleaded complaint

rule, which provides that federal jurisdiction exists only

when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint.” Caterpillar Inc.

v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L.

Ed. 2d 318 (1987) (quotation omitted). An action arises

under federal law “only in those cases in which a wellpleaded complaint establishes either that federal law

creates the cause of action or that the plaintiff’s right to

relief necessarily depends on resolution of a substantial

question of federal law.” Singh v. Duane Morris LLP,

538 F.3d 334, 337-38 (5th Cir. 2008) (cleaned up). The

“test for jurisdiction over federal issues embedded in

state-law claims between nondiverse parties” is this:

“does a state-law claim necessarily raise a stated

federal issue, actually disputed and substantial, which

a federal forum may entertain without disturbing any

congressionally approved balance of federal and state

judicial responsibilities.” Grable & Sons Metal Prods., Inc.

v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S. Ct. 2363,

162 L. Ed. 2d 257 (2005). Federal courts must presume

“that a cause lies outside this limited jurisdiction” unless

the party asserting federal jurisdiction carries its burden

to establish otherwise. Kokkonen, 511 U.S. at 377.

10a

Appendix B

ANALYSIS

In a nutshell, the State’s position is that the Supreme

Court’s DeVillier decision establishes “that where a Texas

cause of action exists to vindicate federal takings rights,

Plaintiffs must use it and cannot rely alternatively on an

implied federal cause of action.” Dkt. 174 at 13. Because

“constitutional concerns do not arise” where, as here,

Texas law provides a way “to seek just compensation,”

the State insists that federal question jurisdiction does

not exist and this case must be remanded to state court.

DeVillier, 601 U.S. at 292.

Plaintiffs strongly disagree. They argue that “[f]ederal

subject matter jurisdiction over this case is provided by

the general federal question jurisdiction statute for Counts

2 (federal Takings Clause), 3 (procedural due process),

4 (substantive due process), and 6” (a state-law cause

of action grounded in the federal Takings Clause). Dkt.

175 at 9. In Plaintiffs’ view, the jurisdictional issues are

simple and straightforward: “This Court would be hard

pressed to find a claim more squarely within its federal

question jurisdiction than one based directly on the U.S.

Constitution.” Id. at 12.

Because it is settled law that a case properly belongs in

federal court if there is a single federal question present in

the Complaint, I must conduct a claim-by-claim inquiry. At

the same time, I am mindful that any doubts or ambiguities

I have concerning federal question jurisdiction must be

resolved in favor of remand. See Manguno v. Prudential

Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

11a

Appendix B

Count 2: Count 2 purports to assert a claim directly

under the Fifth Amendment’s Takings Clause, which

mandates the payment of just compensation when a

government takes private property for public use. See

U.S. Const. amend. V. Plaintiffs argue that Count 2 falls

squarely within federal question jurisdiction because it

requires construction of federal law as applied under the

Fifth Amendment. At first blush, Plaintiffs have a point.

They plainly allege a Fifth Amendment Takings Claim

on the face of the Complaint. But that is not the end of

the story. Even though “a federal claim appears on the

face of the complaint,” federal question jurisdiction does

not exist when there is “a frivolous or insubstantial claim,

i.e., a claim which has no plausible foundation or which is

clearly foreclosed by a prior Supreme Court decision.”

Young v. Hosemann, 598 F.3d 184, 188 (5th Cir. 2010)

(quotation omitted).

It is worth repeating that the Supreme Court in

DeVillier held “that constitutional concerns do not arise

when property owners have other ways to seek just

compensation.” DeVillier, 601 U.S. at 292. Given that

“Texas state law provides a[n inverse-condemnation]

cause of action by which property owners may seek just

compensation against the State,” the Supreme Court

instructed Plaintiffs “to pursue their claims under the

Takings Clause through the cause of action available under

Texas law.” Id. at 293.

Justice Thomas recognized in DeVillier that the

state court system is capable of handling those cases

in which property owners advance a state-law inverse

12a

Appendix B

condemnation cause of action to vindicate their rights

under the Fifth Amendment’s Takings Clause:

Our constitutional system assigns to state

officers a coordinate responsibility to enforce

the Constitution according to their regular

modes of procedure. It therefore looks to the

good faith of the States to provide an important

assurance that “this Constitution, and the Laws

of the United States which shall be made in

Pursuance thereof shall be the supreme Law

of the Land.” We should not assume the States

will refuse to honor the Constitution, including

the Takings Clause, because States and their

officers are also bound by obligations imposed

by the Constitution.

DeVillier, 601 U.S. at 292-93 (quoting U.S. Const., art.

VI) (cleaned up). In remanding this case to the district

court for further proceedings consistent with the

Supreme Court’s decision, Fifth Circuit Judge Patrick E.

Higginbotham offered his opinion: “It is now settled that

in providing rights of action for takings by the state, Texas

is discharging its obligations under the Fifth Amendment

and the state removal is now without jurisdictional legs to

stand on.” DeVillier v. Texas, 132 F.4th 746, 747 (5th Cir.

2024) (Higginbotham J., concurring).

Federal question jurisdiction typically exists when “a

well-pleaded complaint establishes either that federal law

creates the cause of action or that the plaintiff’s right to

relief necessarily depends on resolution of a substantial

13a

Appendix B

question of federal law.” Franchise Tax Bd. v. Constr.

Laborers Vacation Tr., 463 U.S. 1, 27-28, 103 S. Ct. 2841,

77 L. Ed. 2d 420 (1983). Plaintiffs’ right to relief under a

state-law inverse condemnation cause of action does not

implicate a substantial question of federal law.

As Justice Benjamin Cardozo explained almost 90

years ago:

The most one can say is that a question of

federal law is lurking in the background, just

as farther in the background there lurks a

question of constitutional law, the question of

state power in our federal form of government.

A dispute so doubtful and conjectural, to far

removed from plain necessity, is unavailing to

extinguish the jurisdiction of the states.

...

If we follow the ascent far enough, countless

claims of right can be discovered to have their

source or their operative limits in the provisions

of a federal statute or in the Constitution

itself with its circumambient restrictions upon

legislative power. To set bounds to the pursuit,

the courts have formulated the distinction

between controversies that are basic and those

that are collateral, between disputes that are

necessary and those that are merely possible.

Gully v. First Nat. Bank, 299 U.S. 109, 117-18, 57 S. Ct.

96, 81 L. Ed. 70 (1936). The same holds true here.

14a

Appendix B

Counts 3 and 4: In Count 3, Plaintiffs allege a

procedural due process claim in violation of the Fourteenth

Amendment “[i]n the alternative to Count 1.” Dkt. 162 at

29. Plaintiffs contend that if their claims under article 1,

§ 17 of the Texas Constitution (Count 1) are “denied based

on a determination that it must be shown that the State

possessed actual knowledge that its actions were certain

to inundate specific parcels of property,” then Plaintiffs

have been deprived of a property interest without

procedural due process of law. Id. In Count 4, Plaintiffs

allege—again “[i]n the alternative” to their takings

claims—a substantive due process claim in violation of

the Fourteenth Amendment. This claim is premised on

the idea that if “Plaintiffs have no right to directly assert

an inverse condemnation claim against the State of Texas

for just compensation under the Fifth Amendment to the

U.S. Constitution,” then “their substantive rights to due

process protection secured by the Fourteenth Amendment

to the U.S. Constitution have been violated by the State’s

taking.” Id. at 31.

Because I am obligated to strictly construe the removal

statute in favor of remand, I conclude that neither Count 3

nor Count 4 provide subject matter jurisdiction. It is blackletter law that “a claim must be ripe for a federal court to

have jurisdiction.” Lower Colo. River Auth. v. Papalote

Creek II, L.L.C., 858 F.3d 916, 924 (5th Cir. 2017). The

“[r]ipeness doctrine enforces the Constitution’s limit of

federal court jurisdiction to ‘cases or controversies’ by

preventing premature litigation.” Archbold-Garrett v.

New Orleans City, 893 F.3d 318, 321 (5th Cir. 2018). “A

claim is not ripe for adjudication if it rests upon contingent

future events that may not occur as anticipated, or indeed

15a

Appendix B

may not occur at all.” Texas v. United States, 523 U.S. 296,

300, 118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998) (quotation

omitted). “A court should dismiss a case for lack of

‘ripeness’ when the case is abstract or hypothetical.” Orix

Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000)

(quotation omitted). In determining whether a case is ripe,

there are two key considerations: “the fitness of the issues

for judicial decision and the hardship to the parties of

withholding court consideration.” Id. (quotation omitted).

Plaintiffs’ procedural and substantive due process

claims outlined in Counts 3 and 4 are abstract, hypothetical,

and contingent. As Plaintiffs recognize, their procedural

and substantive due process claims only arise if they do

not prevail on their underlying takings claim. But “where

the injury that resulted from an alleged procedural

due process violation is merely a taking without just

compensation, [the court] cannot know whether the

plaintiff suffered any injury until the takings claim has

been adjudicated.” Rosedale Missionary Baptist Church

v. New Orleans City, 641 F.3d 86, 91 (5th Cir. 2011). For

that reason, Plaintiffs must allow their state-law inversecondemnation claim to run its course before they can

raise—and a court can adjudicate—their procedural and

substantive due process claims. See id. at 89 (“Because

the church does not allege a substantive due process

claim that is independent of its procedural due process

claim, and we cannot address the procedural due process

claim without knowing the outcome of the takings claim,

which is not before us, we dismiss the case as unripe.”);

John Corp. v. City of Houston, 214 F.3d 573, 585-86 (5th

Cir. 2000) (holding that a district court cannot address

16a

Appendix B

a procedural due process claim until it has determined

whether a taking has occurred).1

As the State points out, Plaintiffs offer their

procedural and substantive due process claims “as a

hedge bet in the event their” Counts 1 and 2 fail. Dkt. 176

at 19. Because Plaintiffs’ procedural and substantive due

process claims are entirely dependent on the outcome of

their takings claims, the due process issues are not ripe.

Thus, no federal question jurisdiction exists with respect

to Counts 3 and 4. 2

1. Plaintiffs argue that Rosedale and John Corp. are inapposite

because they are based on Williamson County’s now-defunct statecourt exhaustion requirement. See Williamson Cnty. Reg’l Plan.

Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108, 87 L.

Ed. 2d 126 (1985), overruled in part by Knick v. Twp. of Scott, 588

U.S. 180, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019). This argument

does not move me because the Fifth Circuit stated in Rosedale and

John Corp. that it was relying on general ripeness principles, not

Williamson County, to find procedural and substantive due process

claims unripe in the taking context. See Rosedale, 641 F.3d at 89

(“[T]he church’s due process claim is unripe based not on Williamson

County but on general ripeness principles.”); John Corp., 214 F.3d at

586 (“In determining that Appellants’ procedural due process claim

is unripe, we do not apply Williamson County per se, but rather the

general rule that a claim is not ripe if additional factual development

is necessary.”).

2. I acknowledge that the State has previously taken the

position that Counts 3 and 4 independently provide federal subject

matter jurisdiction. See Dkt. 175 at 20. Although Plaintiffs are quick

to highlight those prior statements, “no action of the parties can

confer subject-matter jurisdiction.” Ins. Corp. of Ir. v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 72 L. Ed.

2d 492 (1982). “Courts have an independent obligation to determine

17a

Appendix B

Count 6: In Count 6, Plaintiffs bring a state common

law cause of action seeking just compensation for violation

of the Fifth Amendment. This is the state-law inversecondemnation claim that the Supreme Court noted in

DeVillier provides a vehicle for takings claims based

on both the Texas Constitution and the federal Takings

Clause. This state-law claim does not give rise to federal

question jurisdiction.

There is a “long-settled understanding that the mere

presence of a federal issue in a state cause of action does

not automatically confer federal-question jurisdiction.”

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804,

813, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986). “A suit arises

under the law that creates the cause of action.” American

Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260,

36 S. Ct. 585, 60 L. Ed. 987 (1916). “Federal jurisdiction is

not shown by this test, for [Plaintiffs] allege[] an asserted

cause of action created by Texas law.” Willy v. Coastal

Corp., 855 F.2d 1160, 1167 (5th Cir. 1988).

“[F]ederal jurisdiction over a state law claim will lie

if a federal issue is: (1) necessarily raised, (2) actually

disputed, (3) substantial, and (4) capable of resolution in

federal court without disrupting the federal-state balance

approved by Congress.” Gunn v. Minton, 568 U.S. 251,

258, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013). “Where

all four of these requirements are met, . . . jurisdiction

is proper because there is a serious federal interest in

whether subject-matter jurisdiction exists.” Hertz Corp. v. Friend,

559 U.S. 77, 94, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010).

18a

Appendix B

claiming the advantages thought to be inherent in a

federal forum, which can be vindicated without disrupting

Congress’s intended division of labor between state and

federal courts.” Id. (quotation omitted).

None of these elements are satisfied here. To begin,

there is no federal issue necessarily raised in this case.

That is because the State has “honor[ed] its obligations

under the Fifth Amendment” by providing a cause of

action for inverse condemnation. DeVillier, 132 F.4th at

748 (Higginbotham J., concurring). “[F]ederal jurisdiction

demands not only a contested federal issue, but a

substantial one, indicating a serious federal interest in

claiming the advantages thought to be inherent in a federal

forum.” Grable, 545 U.S. at 313. Even if there is a federal

issue at stake, Plaintiffs’ right to relief on the state-law

inverse condemnation cause of action does not depend

on the resolution of a substantial and disputed question

of federal law. Finally, there is no reason to think that a

federal court is uniquely positioned to address a state-law

inverse condemnation claim simply because such a claim

allows Plaintiffs to vindicate their rights under the federal

Takings Clause. Indeed, the Supreme Court has already

opined in this case that it has no constitutional concerns

with state courts handling such claims “according to their

regular modes of procedure.” DeVillier, 601 U.S. at 292

(quotation omitted).

A mere invocation of the federal Takings Clause in the

Complaint does not, by itself, give rise to federal question

jurisdiction, especially when the underlying cause of

action—in this case, an inverse condemnation claim—is

19a

Appendix B

brought under state law. As pointed out by the State, the

logical extension of Plaintiffs’ argument is that

every single taking case that exists across

the entire U.S., in every state, which all, to

some degree, can trace their way back to the

Constitution, can be filed in federal court.

The allowance of this position would strip the

states’ judiciar[ies] of their powers to govern

the actions and the laws of their state[s].

See Alden v. Maine, 527 U.S. 706, 713, 119

S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (“[T]he

States entered the federal system with their

sovereignty intact. Various textual provisions

of the Constitution assume the States’ continued

existence and active participation in the

fundamental processes of governance.”).

Dkt. 176 at 22.

I am sympathetic to Plaintiffs’ argument that

“[r]eturning to state courts would erase years of effort

and return a near-trial-ready case to a disorganized

infancy.” Dkt. 175 at 10. I have no doubt that Plaintiffs are

correct in their assessment. But my task is not to select

the most convenient forum for the parties to litigate their

dispute. I am “duty-bound” to examine whether subjectmatter jurisdiction exists and I may not proceed where

it is apparent that jurisdiction does not exist. Union

Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th

Cir. 2004); see also Wullschleger, 604 U.S. at 26 (“If the

complaint presents no federal question, a federal court

20a

Appendix B

may not hear the suit.”). It is apparent that jurisdiction

does not exist here.

***

In sum, Plaintiffs’ only ripe claims are their claims

under article 1, § 17 of the Texas Constitution (Count

1) and their state common law cause of action seeking

just compensation for violation of the Fifth Amendment

(Count 6). Although Count 6 implicates the federal

Takings Clause, the cause of action is created by state

law. Plaintiffs’ claim for procedural and substantive due

process would be a source of federal question jurisdiction

if they were ripe, but they are not. Accordingly, there is no

ripe claim that gives rise to federal question jurisdiction.

CONCLUSION

Construing all doubts and ambiguities in favor of

remand, as I am required to do, I conclude that this

court does not possess subject matter jurisdiction. I thus

recommend that the State of Texas’s Motion to Remand to

State Court (Dkt. 174) be granted. These four consolidated

cases—No. 3:20-cv-223; No. 3:20-cv-379; No. 3:21-cv-104;

and No. 4:21-cv-1521—should be remanded to the state

courts of Chambers, Jefferson, and Liberty Counties from

which they were removed.

The parties have 14 days from ser vice of this

memorandum and recommendation to file written

objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.

72(b)(2). Failure to file timely objections will preclude

21a

Appendix B

appellate review of factual findings and legal conclusions,

except for plain error.

SIGNED this 5th day of January 2026.

/s/ Andrew M. Edison

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE

22a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED NOVEMBER 13, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-40750

RICHARD DEVILLIER; WENDY DEVILLIER;

STEVEN DEVILLIER; RHONDA DEVILLIER;

BARBARA DEVILLIER; et al.,

Plaintiffs-Appellees,

versus

STATE OF TEXAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC Nos. 3:20-CV-223, 3:20-CV-379,

3:21-CV-104, 4:21-CV-1521

Before Higginbotham, Southwick, and Higginson, Circuit

Judges.

PUBLISHED ORDER

Per Curiam:

The United States Supreme Court vacated the

judgment of this court and remanded for further

23a

Appendix C

proceedings. See DeVillier v. Texas, 601 U.S. 285, 144 S.

Ct. 938, 218 L. Ed. 2d 268 (2024). On September 26, 2024,

we remanded to the district court with instructions to

remand to state court. On reconsideration, we withdraw

that order. We now REMAND to the district court for

further proceedings consistent with the decision of the

Supreme Court. The withdrawal of our previous order

should not be interpreted as a rejection of the validity of

returning the litigation to state court. Instead, it leaves

that decision to the district court.

24a

Appendix C

Patrick E. Higginbotham, Circuit Judge, concurring:

These currently consolidated individual cases should

be returned to the individual state courts from which

they came and proceed under state processes—while still

respecting the earlier consolidations made under state

law. Any other path shadows the High Court.1

At the outset, it is important to recount the procedural

history of these cases. In response to the flooding caused

by the Texas Department of Transportation, affected

landowners sought compensation in four separate class

actions across Chambers, Liberty, and Jefferson counties.2

Pursuing a distinct agenda, the State of Texas removed

the cases to federal court. In short, the presence of these

Plaintiffs in federal court came not by their own hands,

but by the State’s pursuit of a distinct goal.

Following removal to the district court, the four

groups of Plaintiffs and the State of Texas moved under

the federal rules to consolidate the four cases into one

suit. This motion was granted by the Magistrate Judge.

But then the Supreme Court in a unanimous opinion

recognized that it need not decide the issue on which the

state’s removal was based because Texas law provided

the landowners the protection of the Fifth Amendment.

1. See DeVillier v. Texas, 601 U.S. 285, 144 S. Ct. 938, 218 L.

Ed. 2d 268 (2024).

2. The Plaintiffs filed four separate class actions under Tex. R.

Civ. P. 42. The classes were never certified.

25a

Appendix C

Yet, although not here by their own choice, the

Plaintiffs now prefer to remain in federal court with their

state law claims. But that preference is not dispositive. It

is now settled that in providing rights of action for takings

by the state, Texas is discharging its obligations under the

Fifth Amendment and the state removal is now without

jurisdictional legs to stand on. 3

So, the parties argue that the district court should

exercise supplemental jurisdiction. This important tool

of judicial efficiency has four exceptions: when a claim

raises a novel or complex issue of state law, when a

claim substantially predominates over other claims,

when the district court has dismissed all claims over

which it has original jurisdiction, and when “exceptional

circumstances” are present and provide compelling

reasons for declining jurisdiction.4

To these eyes, the § 1367(c) exceptions stand in the

way of supplemental jurisdiction. The issues of Texas law

remain both controlling and complex, as its law of inverse

condemnation here is uncertain in its application and

retaining the cases places the district court in the position

of either making an Erie guess or certifying questions

of law to the state court. This is the first trip on the new

path—one Texas has provided through a right of action

that honors its obligations under the Fifth Amendment.

3. See DeVillier, 601 U.S. at 292-93.

4. 28 U.S.C. §§ 1367(c)(1)-(4). See also Ameritox, Ltd. v.

Millenium Lab’ys, Inc., 803 F.3d 518, 530-33 (11th Cir. 2015)

(chronicling the evolution of the doctrine of supplemental jurisdiction).

26a

Appendix C

It cannot be gainsaid that its courts are equipped to

vindicate the litigant’s rights. 5

A unanimous Supreme Court has relied upon the

state pathway, enabling it to not reach the difficult issue

of implied federal jurisdiction. As its decision makes plain,

this pathway—available to all states—is in classic service

of federalism. It would be perverse to not return these

cases to the state courts from which they were removed

so that they may travel on the Supreme Court’s predicate

pathway, the first to do so.

As Justice Thomas observed, it is undisputed that

state court judges are “bound by obligations imposed by

the Constitution.”6 I am confident that our able district

court will heed his observation—made for a unanimous

court—and send these travelers on the Supreme Court’s

predicate pathway, mindful that federal law is state law.7

5. See, e.g., Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12 (Tex.

2024) (explaining and expounding on Texas inverse condemnation

caselaw).

6. DeVillier, 601 U.S. at 293 (quoting Alden v. Maine, 527 U.S.

706, 755, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999)).

7. See generally Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810, 91

L. Ed. 967 (1947).

27a

Appendix

D UNITED STATES

APPENDIX D — ORDER

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 30, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-40750

RICHARD DEVILLIER; WENDY DEVILLIER;

STEVEN DEVILLIER; RHONDA DEVILLIER;

BARBARA DEVILLIER; Et al.,

Plaintiffs-Appellees,

versus

STATE OF TEXAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-223

USDC No. 3:20-CV-379

USDC No. 3:21-CV-104

USDC No. 4:21-CV-1521

UNPUBLISHED ORDER

Before Higginbotham, Southwick, and Higginson, Circuit

Judges.

28a

Appendix D

Per Curiam:

IT IS ORDERED that Appellees’ opposed motion

to recall the mandate is GRANTED. The parties are

DIRECTED to file simultaneous letter briefs within 10

days from the date this order explaining what this Court

should now do in light of the Supreme Court’s decision.

29a

Appendix

E UNITED STATES

APPENDIX E — ORDER

OF THE

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 26, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-40750

RICHARD DEVILLIER; WENDY DEVILLIER;

STEVEN DEVILLIER; RHONDA DEVILLIER;

BARBARA DEVILLIER; et al,

Plaintiffs-Appellees,

versus

STATE OF TEXAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 3:20-CV-223

PUBLISHED ORDER

Before Higginbotham, Southwick, and Higginson, Circuit

Judges.

Per Curiam:

The United States Supreme Court vacated the

judgment of this court and remanded for further

proceedings. See Devillier v. Texas, 601 U.S. 285 (2024).

30a

Appendix E

In light of the Supreme Court’s decision, we REMAND

to the District Court with instructions to REMAND to

the state court from which this case was removed.

31a

APPENDIX Appendix

F — OPINION

OF THE

SUPREME COURT OF THE UNITED STATES,

FILED APRIL 16, 2024

SUPREME COURT OF THE UNITED STATES

No. 22–913

RICHARD DEVILLIER, et al.,

Petitioners ,

TEXAS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[April 16, 2024]

Justice Thomas delivered the opinion of the Court.

Richard DeVillier alleges that the State of Texas

took his property for stormwater storage. He sought

just compensation under the Takings Clause of the

Fifth Amendment, arguing that the Constitution itself

authorized him to bring suit. We granted certiorari

to decide whether “a person whose property is taken

without compensation [may] seek redress under the selfexecuting Takings Clause even if the legislature has not

affirmatively provided them with a cause of action.” Pet.

for Cert. i. That question assumes the property owner has

32a

Appendix F

no separate cause of action under which to bring a claim

based on the Takings Clause. But, that is not the case here.

Texas law provides a cause of action that allows property

owners to vindicate their rights under the Takings Clause.

We therefore vacate and remand so that DeVillier’s claims

may proceed under Texas’ state-law cause of action.

Richard DeVillier and more than 120 other petitioners

own property north of U. S. Interstate Highway 10

between Houston and Beaumont, Texas.1 The State of

Texas undertook several projects to facilitate the use of

that portion of the highway as a flood-evacuation route. It

installed a roughly 3-foot-tall barrier along the highway

median to act as a dam, preventing stormwater from

covering the south side of the road.

In August 2017, Hurricane Harvey brought heavy

rainfall to southeast Texas. The new median barrier

performed as intended, keeping the south side of the

highway open. But, it also flooded petitioners’ land to

the north, displacing them from their homes, damaging

businesses, ruining crops, killing livestock, and destroying

family heirlooms. The same thing happened during

Tropical Storm Imelda in 2019. As depicted, the median

barrier kept the south side of the highway open (on the left

side of both pictures) by holding back stormwater, which

1. Because this case comes to us at the pleading stage, we

assume the truth of the facts alleged in the operative complaint.

See, e.g., Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508, n. 1

(2002).

33a

Appendix F

then submerged property north of the highway (on the

right side of both pictures):

Figure 1

Figure 2

Because heavy rainfall is not uncommon in southeast

Texas, the median barrier will continue to cause flooding

on DeVillier’s land during future storms.

34a

Appendix F

DeVillier filed suit in Texas state court. He alleged

that, by building the median barrier and using his

property to store stormwater, Texas had effected a taking

of his property. DeVillier argued that he was therefore

entitled to just compensation under both the United States

and Texas Constitutions. Other property owners filed

similar suits. Texas removed the cases to federal court,

where they were consolidated into a single proceeding

with one operative complaint. The operative complaint

includes inverse-condemnation claims under both the

Texas Constitution and the Takings Clause of the Fifth

Amendment. See Knick v. Township of Scott, 588 U. S.

180, 186 (2019) (“Inverse condemnation is a cause of action

against a governmental defendant to recover the value of

property which has been taken in fact by the governmental

defendant” (internal quotation marks omitted)).

As relevant, Texas moved to dismiss the federal

inverse-condemnation claim, arguing that a plaintiff has

no cause of action arising directly under the Takings

Clause. It contended that only Rev. Stat. §1979, 42 U.

S. C. §1983, provides a vehicle to assert constitutional

violations, and §1983 does not authorize claims against a

State. DeVillier did not dispute that he intended to bring

his federal claim directly under the Fifth Amendment.

Instead, he responded that the Takings Clause is “selfexecuting,” which, he argued, means that the Clause itself

provides a cause of action for just compensation.

The District Court denied Texas’ motion, concluding

that a property owner may sue a State directly under the

Takings Clause. The Court of Appeals disagreed. In a one-

35a

Appendix F

paragraph opinion, it “h[eld] 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.” 53 F. 4th 904 (CA5

2023) (per curiam).

We granted certiorari to decide whether a property

owner may sue for just compensation directly under the

Takings Clause. 600 U. S. ___ (2023). We now vacate and

remand for further proceedings.

The Takings Clause of the Fifth Amendment states:

“nor shall private property be taken for public use, without

just compensation.” We have explained that “a property

owner acquires an irrevocable right to just compensation

immediately upon a taking” “[b]ecause of ‘the selfexecuting character’ of the Takings Clause ‘with respect

to compensation.’” Knick, 588 U. S., at 192 (quoting First

English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U. S. 304, 315 (1987)). Texas

does not dispute the nature of the substantive right to

just compensation. This case presents only a question

regarding the procedural vehicle by which a property

owner may seek to vindicate that right.

Constitutional rights do not typically come with a

built-in cause of action to allow for private enforcement

in courts. See Egbert v. Boule, 596 U. S. 482, 490–491

(2022). Instead, constitutional rights are generally invoked

defensively in cases arising under other sources of law,

36a

Appendix F

or asserted offensively pursuant to an independent cause

of action designed for that purpose, see, e.g., 42 U. S.

C. §1983. DeVillier argues that the Takings Clause is

an exception. He relies on First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles

to assert that the just-compensation requirement of the

Takings Clause is “self-executing” and that “[s]tatutory

recognition [is] not necessary” for takings claims because

they “are grounded in the Constitution itself.” 482 U. S.,

at 315 (internal quotation marks omitted). In other words,

the Takings Clause creates by its own force a cause of

action authorizing suits for just compensation.

The cases that DeVillier cites do not directly confront

whether the Takings Clause provides a cause of action for

just compensation. First English itself proceeded under

a state-law cause of action. Id., at 313–314, n. 8. DeVillier

also points to several takings cases where property

owners sought injunctions to prevent the Government

from interfering with their property rights, such as by

obtaining easements or imposing zoning regulations. See

Dohany v. Rogers, 281 U. S. 362, 364 (1930); Delaware,

L. & W. R. Co. v. Morristown, 276 U. S. 182, 188 (1928);

Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 384

(1926); Cuyahoga River Power Co. v. Akron, 240 U. S. 462,

463 (1916); Nor-wood v. Baker, 172 U. S. 269, 276 (1898).

Because none of those cases relied on §1983 for a cause of

action, he reasons that those cases must have proceeded

directly under the Constitution. But, the mere fact that the

Takings Clause provided the substantive rule of decision

for the equitable claims in those cases does not establish

that it creates a cause of action for damages, a remedy that

37a

Appendix F

is legal, not equitable, in nature. 2 That said, the absence

of a case relying on the Takings Clause for a cause of

action does not by itself prove there is no cause of action.

It demonstrates only that constitutional concerns do not

arise when property owners have other ways to seek just

compensation. Our precedents do not cleanly answer the

question whether a plaintiff has a cause of action arising

directly under the Takings Clause.

But, this case does not require us to resolve that

question. The question presented asks what would

happen if a property owner had no cause of action to

vindicate his rights under the Takings Clause. It would

be imprudent to decide that question without satisfying

ourselves of the premise that there is no cause of action.

Our constitutional system assigns to state officers “a

coordinate responsibility to enforce [the Constitution]

according to their regular modes of procedure.” Howlett

v. Rose, 496 U. S. 356, 367 (1990). It therefore looks to

“[t]he good faith of the States [to] provid[e] an important

assurance that ‘this Constitution, and the Laws of the

United States which shall be made in Pursuance thereof

shall be the supreme Law of the Land.’” Alden v. Maine,

527 U. S. 706, 755 (1999) (quoting U. S. Const., Art. VI;

original alterations omitted). We should not “assume the

States will refuse to honor the Constitution,” including

the Takings Clause, because “States and their officers are

2. The significance of DeVillier’s equitable cases is further

obscured by fundamental changes to the law of equity that

postdate those decisions. Compare Fed. Rule Civ. Proc. 2 with A.

Bellia & B. Clark, The Original Source of the Cause of Action in

Federal Courts, 101 Va. L. Rev. 609, 653 (2015).

38a

Appendix F

[also] bound by obligations imposed by the Constitution.”

527 U. S., at 755.

The premise that Texas left DeVillier with no cause of

action to obtain the just compensation guaranteed by the

Takings Clause does not hold. Texas state law provides a

cause of action by which property owners may seek just

compensation against the State. As Texas explained at

oral argument, its state-law inverse-condemnation cause

of action provides a vehicle for takings claims based on

both the Texas Constitution and the Takings Clause. Tr.

of Oral Arg. 38; id., at 40 (citing Baytown v. Schrock,

645 S. W. 3d 174 (Tex. 2022)); Tr. of Oral Arg. 59–60.

And, although Texas asserted that proceeding under the

state-law cause of action would require an amendment to

the complaint, it also assured the Court that it would not

oppose any attempt by DeVillier and the other petitioners

to seek one. Id., at 41, 61, 64. This case therefore does

not present the circumstance in which a property owner

has no cause of action to seek just compensation. On

remand, DeVillier and the other property owners should

be permitted to pursue their claims under the Takings

Clause through the cause of action available under Texas

law.

III

The judgment of the Court of Appeals is vacated, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

39a

APPENDIX GAppendix

— ORALGARGUMENT

TRANSCRIPT (FINAL), DATED JANUARY 16, 2024

IN THE SUPREME COURT OF THE

UNITED STATES

No. 22-913

RICHARD DEVILLIER, et al.,

Petitioners,

TEXAS,

Respondent.

Washington, D.C.

Tuesday, January 16, 2024

The above-entitled matter came on for oral argument

before the Supreme Court of the United States at 11:10

a.m.

[TABLES INTENTIONALLY OMITTED]

[3]PROCEEDINGS

(11:10 a.m.)

CHIEF JUSTICE ROBERTS: We’ll hear argument

next in Case 22-913, Devillier versus Texas.

40a

Appendix G

Mr. McNamara.

ORAL ARGUMENT OF ROBERT J. McNAMARA

ON BEHALF OF THE PETITIONERS

MR. McNAMARA:

please the Court:

Mr. Chief Justice, and may it

The Question Presented in this case is resolved by

the text of the Fifth Amendment, which, unlike any other

provision of the Constitution, imposes on the government

a -- an explicit duty to pay money.

It’s also answered by this Court’s decision in First

English, which holds that the just compensation remedy is

mandatory and that the Fifth Amendment itself furnishes

a basis on which a court can award just compensation in

an inverse condemnation case.

And this right of property owners to sue in inverse

condemnation to obtain just compensation for an alleged

taking is at the heart of modern American takings law.

It’s at [4]the heart of inverse condemnation claims filed

against state and local governments nationwide. And it’s

also at the heart of every takings claim filed against the

federal government under the Tucker Act.

The Tucker Act provides no cause of action, no

substantive entitlement to a remedy. The cause of action,

the substantive entitlement to a remedy, in every Tucker

Act takings case is the self-executing Fifth Amendment,

41a

Appendix G

the same cause of action recognized in First English, the

same cause of action pled here.

To reject that cause of action now is to upend the

way lower courts, both state and federal, understand the

Takings Clause to work and also to abandon this Court’s

consistent explanations of that clause not just in First

English but in more recent cases like Knick v. Township

of Scott.

And there’s no reason to make that kind of drastic

change. This Court has already recognized that moneymandating legal obligations logically come along with the

right to file a lawsuit to enforce those obligations. That’s

true as to statutes, which is [5]what this Court held in

Maine Community Health Options. It should be at least

as true as to the Constitution, and this Court’s precedents

consistently teach that it is.

I welcome the Court’s questions.

JUSTICE THOMAS: In your reply brief, you say

that the 19th century federal courts were faced with a

bedrock property right and no way to enforce it directly.

Doesn’t that seem to be at odds -- the fact that the

courts there had to resort to extra-constitutional causes

of action, isn’t that at odds with your argument now?

MR. McNAMARA: I don’t think so, Your Honor,

because the primary problem facing federal courts in the

early part of the 19th century was a lack of jurisdiction.

42a

Appendix G

And I think the question of jurisdiction is just conceptually

distinct from the question of whether there’s a cause of

action, whether there’s a right to a remedy.

Congress could tomorrow amend Section 1331 to

reimpose an amount-in-controversy limit, and if it did

that, that would prevent a number of people from [6]

bringing Ex parte Young actions in federal court. Those

claims wouldn’t cease to exist. Congress would just have

eliminated the jurisdiction over them.

A nd so I think there’s a di fference bet ween

jurisdictional limits which limited takings claims and

even pleading requirements like the limits to the forms

of action, which also limited plaintiffs’ abilities to bring

certain kinds of claims, and the core Question Presented

here, which is just whether there is an entitlement to relief.

There -- there’s only one modern form of action, which

just takes the shape of saying, I’m entitled to this remedy

for that reason. The remedy is just compensation. The

reason is the Fifth Amendment as applied through the

Fourteenth. And once the jurisdictional problems and

the pleading problems are removed, as they have been

in this case, the only question remains whether the Fifth

Amendment mandates compensation, whether it mandates

that remedy, which this Court has already answered.

First English says that the just compensation remedy is

mandatory.

43a

Appendix G

[7]And I think contrasting the -- the arguments of

the other side with the rule adopted by the California

Supreme Court in Agins is actually a useful illustration

here. The California Supreme Court’s decision in Agins

said, we as a common law court don’t want to recognize a

claim for just compensation in a regulatory takings case.

We think that intrudes on the legislature’s prerogative.

We don’t recognize that cause of action.

And First English says that doesn’t matter. The cause

of action, the entitlement to relief, flows directly from the

Fifth Amendment. So too here. The complaint here pleads

a cause of action directly under the Fifth Amendment -JUSTICE BARRETT:

Counsel --

MR. McNAMARA: -- that says our property was

taken and the Fifth Amendment -- yes, Your Honor?

JUSTICE BARRETT: Counsel, I agree that

jurisdiction and a cause of action are distinct, but it’s a

little bit hard to see how in 1791 -- I mean, I think your

argument is, when the Fifth Amendment was ratified,

those who ratified it had to see the Fifth Amendment as

[8]itself supplying the cause of action because this was

the crucial way to vitiate the takings right, the right to

just compensation.

But Congress didn’t provide for federal question

jurisdiction until 1875, so that kind of languished on the

vine for a pretty long time if you’re right that the founding

44a

Appendix G

generation or the -- you know, the ratifying generation in

1791 viewed it that way.

Moreover, you know, the historical evidence of private

bills runs contrary to your argument because, yes, there

was a right to just compensation, but we have all of this

time, throughout the 19th century, of Congress enacting

private bills to give just compensation.

And I think you have to contend with that because, I

mean, I get that this is against Texas, against the state,

but if the Fourteenth Amendment incorporated the

Fifth Amendment as it was, there’s kind of a mountain of

historical evidence, you know, that you’ve got to contend

with.

MR. McNAMARA: So I -- I don’t think that

mountain does quite the work that Texas [9]needs it to,

Your Honor. And I think one problem here is the difficulty

in mapping the modern conception of cause of action onto

1791 visions of the court. I think, if you asked a lawyer in

1791 whether the Fifth Amendment contained a cause of

action, they probably wouldn’t understand the question.

But, if you asked them can a property owner sue to

enforce just compensation, the answer absolutely would

have been yes. It would have been a suit in trespass. It

would perhaps have been a suit in ejectment. But there

was an understanding at the framing that this was an

enforceable right, and if you --

45a

Appendix G

JUSTICE GORSUCH: Well, that -- that establishes

at most, it seems to me, that the Fifth Amendment

envisioned some remedial mechanism would be available.

And the common law trespass, as you point out, might have

been it, or conversion might have been it. It -- it doesn’t

necessarily mean that there is itself an independent cause

of action under the Fifth Amendment.

MR. McNAMARA:

once the forms --

I -- I think it does, Your Honor,

[10]JUSTICE GORSUCH: W hy? You’ve just

conceded that the cause of action that -- that the Framers

would have understood would have been in trespass.

MR. McNAMARA: Well, Your Honor, I think, in

-- in modern terms, what the Court means when it says

“cause of action” -JUSTICE GORSUCH: Well, no. But what we’re

talking about the original meaning, and you’re asking

us to appeal to the original meaning and say they would

have understood there would have been a cause of action.

Perhaps, but what would that cause of action look like?

MR. McNAMARA: I -- I think they would have

understood that there was an entitlement to a remedy.

JUSTICE GORSUCH:

M R . McNA M A R A :

compensation as a remedy.

Some remedy?

A n ent it lement t o just

46a

Appendix G

JUSTICE GORSUCH:

that?

MR. McNAMARA:

Some -- some way to get

Yes, and I think --

JUSTICE GORSUCH: Fair enough. That doesn’t

necessarily mean there’s a federal cause of action. It could

mean it happens under state [11]common law, right?

MR. McNAMARA:

Well, Your Honor, two -- two --

JUSTICE GORSUCH: I mean, you -- you would

admit that a state common law cause of action did and

could fully vindicate the Fifth Amendment?

MR. McNAMARA: Yes, Your Honor, I think there

could be a state common law action that vindicated the

First Amendment, but I also think -JUSTICE GORSUCH:

MR. McNAMARA:

First.

Fifth. Fair enough.

Yes, Your Honor, or -- or the

JUSTICE GORSUCH: And that that would -- that

would be enough. No -- nothing more would be required.

MR. McNAMARA:

Well --

JUSTICE GORSUCH:

operated for a long time.

And, in fact, that’s how it

47a

Appendix G

MR. McNAMARA: Well, certainly, Your Honor, if

compensation is provided through any mechanism, there’s

no longer a Fifth Amendment injury to be remedied.

JUSTICE GORSUCH: Ah. Okay. I [12]understand

that argument. That’s not the argument you’re -- you’re

pressing, though.

M R . Mc NA M A R A : T h a t ’s b e c a u s e , he r e ,

compensation hasn’t been paid. The plaintiffs in this case

continue to suffer the ongoing Fifth Amendment injury.

JUSTICE GORSUCH: Well, maybe that’s because

you -- you -- you -- you allowed this case to be removed,

which I -- and -- and -- and, you know, I’m -- I’m surprised

you didn’t oppose removal on that ground and said there’s

no federal question that we need to resolve here because

it’s really a state common law cause of action we’re

pursuing. That would have been one option.

Or maybe in federal court you might have said we

want a declaratory judgment, which everyone concedes

you can get under the Fifth Amendment, and take pendent

jurisdiction over our state common law cause of action,

which would adequately vindicate our Fifth Amendment

rights.

You didn’t pursue either of those courses here.

MR. McNAMARA: So two responses, Your [13]

Honor. One, I don’t think there was a good-faith grounds

to oppose Texas’s removal because what the complaint

48a

Appendix G

says on its face is we are entitled to just compensation

under the Fifth Amendment.

JUSTICE GORSUCH: Well, but it -- it then pleads

state causes of action to do so.

MR. McNAMARA: No, Your Honor. It -- it pleads

a claim directly under the Fifth Amendment.

JUSTICE GORSUCH: Well, maybe that’s another

problem you face is it -- you -- if you had an adequate

common law -- do you dispute that Texas has an adequate

common law remedy to -- for -- for your problem?

MR. McNAMARA: I do, Your Honor. And this is

actually an important point. That -JUSTICE GORSUCH: Is that argument in your

brief, that -- that the -- that the -- the common law of

Texas or state law has no mechanism to enforce the Fifth

Amendment?

MR. McNAMARA: Well, Your Honor, Texas asserts -JUSTICE GORSUCH: If -- if it did, I’d -- that one

would I -- I’d take seriously, [14]but I didn’t see it.

MR. McNAMARA: So Texas asserts, Your Honor,

that there is a Texas common law mechanism to vindicate

the Fifth Amendment, but there is no Texas decision

saying we sitting as a common law court invoke our

common law powers to create a cause of action.

49a

Appendix G

JUSTICE GORSUCH:

No trespass, no conversion?

M R . M c NA M A R A : T e x a s h e a r s i n v e r s e

condemnation claims arising under the Fifth Amendment.

That’s what the Texas Supreme Court said most recently

in City of Baytown v. Schrock, and it cites the Fifth

Amendment. It doesn’t invoke its common law powers.

JUSTICE GORSUCH: Fair enough. I get all of that

now. All right. Now that’s clarifying. But you -- you -- the

-- the nature of the argument before us isn’t that Texas

lacks a common law cause of action. It’s whether or not

Texas has such a thing, we’re entitled to another remedy

under federal law.

MR . McNA M A R A : I - - I don’t think that’s

right, Your Honor. What the Fifth Circuit said is that

the complaint that alleges [15]an entitlement to just

compensation flowing from the Fifth Amendment doesn’t

state a claim, that that claim is dead. If -JUSTICE GORSUCH: Let -- let -- let -- let’s suppose

you -- we -- it did create a cause of action. Would -- would

it also waive sovereign immunity? And what would the

statute of limitations be?

MR. McNAMARA: I -- it -- it wouldn’t necessarily

waive sovereign immunity, Your Honor. I think that’s a

distinct question. And the statute of limitations would be

the statute of limitations that is applied by lower courts

when people actually bring these claims.

50a

Appendix G

There’s a -- a robust Court of Federal Claims

jurisprudence, federal district courts hear claims arising

under the Fifth Amendment, sometimes looking to state

law to set the statute of limitations.

JUSTICE GORSUCH:

don’t they, yeah?

Ah, they look to state law,

MR. McNAMARA: But the claim itself, Your Honor,

comes from the Fifth Amendment not just in Texas but in

states nationwide. And I think this is an important point.

[16]Take Oregon, for example. Oregon signed on to the

state’s amicus brief in support of Texas, but the reason

that Oregon pays just compensation for takings under

the Fifth Amendment is the Oregon courts, citing First

English, have said it must pay just compensation. And so

answering the Question Presented -JUSTICE BARRETT: If we don’t read First

English the way you do -- I mean, I think that footnote’s

pretty difficult to decipher -- do you lose?

MR. McNAMARA: No, Your Honor. I would -- I

don’t think it’s just the footnote in First English. I think

it’s the broader holding that the remedy is required.

But I think there’s no dispute here that there is an

entitlement to relief. And, certainly, by the time of the

ratification of the Fourteenth Amendment, courts across

the country had converged on how that kind of entitlement

would be enforced.

51a

Appendix G

And it’s enforced by a lawsuit directly against the

entity that took the property that takes the form of saying,

you have [17]this duty to provide just compensation, you

have not fulfilled it, and I’d like the court to order you to

fulfill it.

JUSTICE SOTOMAYOR: Can I have a -- just a

small point of information? Your case was dismissed in

federal court. Did you ask for a remand on your claims

under the Texas Constitution?

MR. McNAMARA: No, Your Honor. The district

court is keeping pendent jurisdiction over the claims under

the Texas cause.

JUSTICE SOTOMAYOR: So you -- you have a

pending suit on the state law claim?

MR. McNAMARA: Yes, Your Honor, but there is a

dispute about the scope of the takings law that governs that

question. Texas has taken the position in the lower courts

that the Texas Constitution has a narrower definition of

what counts as a taking than the federal courts.

JUSTICE SOTOMAYOR: Well, then First English

comes in too because First English was about a state court

claim and when it started, whether a temporary claim was

a taking or not, and we said yes, it’s a taking, and so the

state [18]court had to pay for that taking.

How is it different than First English in that respect?

52a

Appendix G

MR. McNAMARA: I -- I don’t think it’s different

from First English, Your Honor, except that, here, it was

removed into federal court and then the Fifth Amendment

aspect of the case was dismissed on the merits.

JUSTICE SOTOMAYOR: Oh, I -- I -- I -- I don’t

disagree with you, but First English is about what the

substantive law of Texas is and what Texas has to pay.

And so that issue should be resolved even in the

district court, correct?

MR. McNAMARA: I -- I don’t think so, Your

Honor, because the backstop in First English is the Fifth

Amendment that -- that says that the met -- the just

compensation -JUSTICE SOTOMAYOR: No, the backstop in the

Fifth -- yes, it’s the Fifth Amendment that provides the

substantive law, but not necessarily -- we didn’t address

whether it provides a cause of action.

MR. McNAMARA: I -- I think the Court did, Your

Honor. The United States’ amicus [19]brief -JUSTICE SOTOMAYOR: All right. We’re -- we’re

going to -- we’re going to go into -JUSTICE JACKSON: Can I just ask -- I -- I mean,

this is similar to what -- what Justice Sotomayor was just

getting into. Are -- are you saying that we don’t have three

separate concepts, right, remedy, and cause of action? I

53a

Appendix G

thought those were three different things, and perhaps

First English only covered two of them?

MR. McNA M ARA: I -- I’m not sure they’re

distinct concepts, Your Honor. I think the simplest way to

understand cause of action is an entitlement to a particular

remedy, which is why it’s coherent to say someone might

have a cause of action for an injunction.

JUSTICE JACKSON: I thought it had to do with the

forum, that you have a cause of action that is recognized

in the judicial forum as opposed to, say, going to the

legislature through -- through private bills.

MR. McNAMARA: Well, Your Honor, I -- I think,

to the extent that’s the definition of “cause of action,” we

would have a cause of action under the clear import of the

history [20]that the -JUSTICE JACKSON: Not -- not the history. I guess

I’m just trying to understand, is there -- does it make

sense to think about the Fifth Amendment as providing

the right and the remedy but not speaking to where you’re

going to get that remedy from or what is the enforcement

mechanism?

That’s how I sort of am conceptualizing this, and -and I think we differ about that, so I’d like to hear your

opinion on it.

MR. McNAMARA: I -- I’m not sure that’s a correct

reading of the Fifth Amendment, Your Honor, in part

54a

Appendix G

because I think that reading -- everyone agrees there are

some judicial remedies for the Fifth Amendment.

As I understand my friend’s argument, we’d be

entitled to sue for injunctive relief or for ejectment in the

absence of a -- a path to a Fifth Amendment compensation

remedy.

So everyone agrees there’s some judicial remedy, and

I think the form of that judicial remedy depends on the

scope of the government’s obligation.

[21]There are two visions of the Fifth Amendment. One

is that the Fifth Amendment just provides a precondition.

The government is required to pay and it can be enjoined

from taking the property if it doesn’t pay.

The other vision that’s adopted in First English that’s

reiterated in Knick is that the Fifth Amendment creates

an obligation to pay just compensation. And if that’s the

ongoing obligation, the government has taken property, it

owes just compensation today, will owe just compensation

tomorrow, courts are empowered to cure that ongoing

obligation.

It’s not a question of damages for a past violation. It’s

a question of the government’s obligation as it stands in

court today.

JUSTICE BARRETT: Mr. McNamara, can I go

back to Justice Sotomayor’s question and just ask for a

point of clarification? I understood Texas law to provide a

55a

Appendix G

cause of action for vitiating the federal Fifth Amendment

right.

I took your answer to Justice Sotomayor to be saying

that Texas courts say -- you were talking about how Texas

courts define a [22]taking for purposes of the Texas

Constitution.

So am I wrong in thinking that Texas allows you

to bring a state cause of action for the federal Fifth

Amendment claim?

MR. McNAMARA: I -- I’m not sure whether that’s

right to be honest, Your Honor. And I think two things flow

from this. One, if it’s true that there is a Texas common

law cause of action under which we could have -- we can

vindicate our Fifth Amendment rights, then the Fifth

Circuit still has to be reversed because it held that that

substantive claim should be dismissed on the merits.

JUSTICE BARRETT: Okay. Well, let me just -- just

-- just -- it’s important for me to be able to understand

this procedural point. Does Texas have -- provide a state

cause of action to vitiate the state takings right from the

Texas Constitution?

MR. McNAMARA:

Yes, Your Honor.

JUSTICE BARRETT: Okay. It seems to me then

it can’t discriminate against the federal claim anyway.

56a

Appendix G

MR. McNAMARA: I -- I think that’s true, Your

Honor, but Texas doesn’t -- Texas [23]isn’t trying to

discriminate against the -- this federal claim. What Texas

says, like other state courts, is it’s not doing -- it doesn’t

say we’re doing common law analysis and creating a cause

of action.

What Texas seems to be doing is constitutional

analysis, just like the other state courts that specifically

cite First English and say, ah, there is a cause of cause of

action here. I’m not familiar with any state case saying

we are using our powers as a common law court to create

a cause of action to vindicate the Fifth Amendment.

What they say is we’re looking at the Fifth Amendment.

We see it creates the obligation. Frequently they cite First

English directly and they say that’s what gives rise to the

cause of action.

And that, I think, is what’s dangerous about the

Question Presented here. As -- as I understand Texas’s

argument, the complaint we filed in state court was

perfectly valid and could be adjudicated, and the Fifth

Amendment could have been adjudicated in state court.

Once it was removed, Texas moved to dismiss and [24]

sought an interlocutory appeal and has successfully

extinguished that.

But my concern is that adopting Texas’s arguments

here tells all of these state courts that have pointed to

First English and said this is the source of -- the Fifth

Amendment is the source of the cause of action would look

57a

Appendix G

to a decision in this case adopting Texas’s arguments and

say: Okay. We were wrong. The Constitution does not, in

fact, require a remedy. There is no federal constitutional

cause of action. And that would eliminate the federal

takings remedy in state courts across the nation.

JUSTICE ALITO: Mr. McDowell, the language of

the Takings Clause is quite similar to the language of

the Due Process Clause in the Fifth Amendment, which

immediately precedes it. “No person shall be [. . .] deprived

of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without

just compensation.”

So why should they be read differently with respect

to the creation of a cause of action?

[25]MR. McNAMARA: I -- I don’t think they have

to be read differently, Your Honor. I think, if there’s an

ongoing due process violation, a plaintiff could bring an

Ex parte Young action. Ex parte Young was not a 1983

action. It was -JUSTICE ALITO:

a claim for damages?

No, not an Ex parte Young, but

MR. McNAMARA: Well, and I think that’s the

difference here, that we’re not seeking damages; we’re

seeking just compensation. We’re not saying there was a

past completed violation of the Constitution and we want

something to offset that. We’re saying the government

has taken property, which gives rise to a present duty to

58a

Appendix G

pay just compensation, and we want the present obligation

enforced, not a backwards-looking damages remedy

concocted or created. And I think that entitlement to just

compensation is how the Framers would have understood

the Fifth Amendment.

The alternative view, the idea that all you get are

injunctions, I don’t think squares with either the text or

how contemporary commentators talked about the clause.

[26]St. George Tucker and John Jay wrote about the

Takings Clause in the context of the Army seizing horses

and military supplies. But, if the Army is seizing horses,

the Army’s going to get the horses. The understanding

would not have been that you could stop the Army in the

moment from seizing your horses.

What St. George Tucker is writing about is the

ongoing duty to provide compensation for the horses,

which is also how contemporary courts wrote about the

just compensation requirement, even constrained as they

were by the forms of action.

I -- I think a great example of this is the Massachusetts

Supreme Court’s decision in - - excuse me - - the

Massachusetts Supreme Court’s decision in evaluating

an -- an action brought as a -- a writ of debt in Gedney v.

Inhabitants of Tewksbury, where the justices -- the judges

of the Massachusetts Supreme Court there said: This

isn’t the right forum. This isn’t an action in debt. You can’t

state it using that forum. You have to go to a different

forum to get your just compensation. But, if that other

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forum denies you compensation, you [27]can return here,

in the statement of one of the judges, and ask for that

remedy again, which will not probably be refused if -JUSTICE ALITO: If the Fifth Amendment confers

a right to sue for just compensation in and of itself, is

that right unqualified? And if it is not unqualified, what

qualifications do you recognize?

MR. McNAMARA: Oh, I -- I certainly don’t think

it’s unqualified, Your Honor. It -JUSTICE ALITO:

recognize?

What qualifications do you

MR. McNAMARA: It -- it requires a court of

competent jurisdiction, and so, certainly, Congress is free

to channel jurisdiction however it likes. Texas is similarly

free to create courts of jurisdiction as it pleases.

But the underlying -- all we’re saying is that there is an

underlying entitlement to receive just compensation and

that when that entitlement is denied, a court of competent

jurisdiction can order that that just compensation be paid.

JUSTICE ALITO: Well, does it make [28]sense to

view the Fifth Amendment as providing a right to sue for

compensation, but your ability to vindicate that right is

totally dependent on Congress’s discretionary choice to

create lower federal courts and to give them jurisdiction

to entertain such claims? That sounds like a very weak

right if that’s -- if it’s subject to limitation in that way.

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MR. McNAMARA: I think the same could be said

of the entire Bill of Rights, though, Your Honor. The -- the

entire stratum of federal constitutional rights depends

on Congress to create lower federal courts, courts where

these rights can be vindicated.

Once Congress does create those courts, and when

a state defendant deliberately chooses to avail itself of

those courts, the only question is whether that court can

enforce the ongoing obligation to require the payment of

just compensation.

And I think that’s ultimately what distinguishes this

case from the Court’s Bivens cases, where Bivens cases

are about the policy question of whether to create a

remedy. They don’t engage in constitutional text, history,

[29]and tradition analysis, which is why Justice Rehnquist

could dissent in cases like Carlson v. Green and Davis v.

Passman and then, less than a decade later, Chief Justice

Rehnquist could write First English, because we’re not

talking about a damages remedy; we’re talking about the

power of the federal courts to, when their jurisdiction is

competently invoked and when the state has waived its

sovereign immunity, require the state to comply with its

ongoing constitutional duty.

I think that matches both with the history, it matches

with the tradition, and it matches particularly with

the Fourteenth Amendment context itself. It’s worth

remembering that when this Court incorporated the Fifth

Amendment against the states in Chicago, Burlington

& Quincy Railroad, it specifically incorporated the right

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to compensation, not the right not to have the property

taken but the right to receive money, that the due process

of law necessarily included as a matter of first principles

-- Chicago, Burlington actually doesn’t cite the Fifth

Amendment -- but, as a matter of first [30]principles, it

includes the right to receive compensation for the property

taken.

These state -- these cases rarely appear in federal

court, in part because, before Knick, no takings case

could be filed ab initio, but also because, as the magistrate

judge’s opinion in this case points out, it’s relatively rare

for a state to choose to remove this federal claim -- this

federal right into a federal forum. But, once it does so, once

Texas has decided it wants the scope of our rights under

the Fifth Amendment to be litigated in federal court, that

can’t change the scope of the claim we make.

What the Fifth Circuit opinion below says is that we

cannot state a claim invoking our rights under the Fifth

Amendment, full stop. If Texas is right that, in fact, we

have that right as a matter of Texas common law, then the

Fifth Circuit was wrong to say that we only have that right

under Section 1983. That counsels in favor of reversal.

But this Court has also squarely held and again

repeated in Knick that the Fifth Amendment does furnish

a basis on which a court [31]can award just compensation.

In the mine run of cases, that’s going to be a state court

awarding just compensation. But, when the state wishes to

be in federal court, I don’t think there’s a good-faith basis

for the plaintiff to say, I’m invoking my rights under the

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Fifth Amendment, I want the full scope of compensation

-- that I’m entitled to under the Fifth Amendment, but

I refuse to allow this claim that arises under my rights

under the Fifth Amendment to be in federal court.

It is the defendant’s choice to have this federal claim

that turns on federal law heard in federal court. That’s

the choice that Texas made, and that choice can’t, on the

merits, extinguish our Fifth Amendment remedy.

What Texas has effectively accomplished here

by making the unusual decision to remove is that it’s

eliminated the Fifth Amendment question from this case

and given itself what it believes -- I’m not conceding that

they’re right about Texas law -- but what it believes is a

more favorable rule of Texas law.

But, if First English is right and the [32] just

compensation remedy is mandatory, then the just

compensation remedy is mandatory, and Texas can’t

extinguish it through procedural maneuvers like

removing this case to federal court. The claim -- a claim

for just compensation simply takes the form of saying the

government has taken a property interest and I as the

former owner am entitled to the fair market value of that

property interest.

JUSTICE JACKSON: Can I just be clear, are you

arguing that through Texas’s maneuvering that claim is

no longer available to you?

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MR. McNAMARA: Yes, Your Honor. I think that’s

what Judge Oldham points out in his dissent below.

JUSTICE JACKSON: I -- I understand not in

federal court, but are you claiming that Texas has

prevented you from making this claim in state court?

MR. McNAMARA: Yes, Your Honor. There -- there

will be no remand in this case. This case is staying in

federal district court. And as Judge Oldham correctly

pointed out, the upshot of the panel opinion below is that

this case will proceed without any federal takings [33]

claim in it because -JUSTICE JACKSON: If you had sought remand

and it went back to Texas court, are you saying that there

wouldn’t be the opportunity to make this claim in state

court? I’m just trying to understand if the claim is totally

gone as -- as a general matter here.

MR. McNAMARA:

my light is on.

I -- so I -- I think -- I -- I see

CHIEF JUSTICE ROBERTS:

No, go ahead.

MR. McNAMARA: Thank you, Your Honor. I -- so I

think, Your Honor, first, I don’t know that we would have

had grounds to fight remand because the claim does invoke

our entitlement under federal law. But, if the case were

remanded, I think the question in Texas state court would

be exactly the Question Presented here: Are we entitled,

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without the 1983 vehicle, to invoke our rights under the

Fifth Amendment?

Texas courts have said yes, we are entitled to invoke

our rights under the Fifth Amendment. But, again, they

just cite the Fifth Amendment. They’re not invoking some

special cause of action that they have created. They, [34]

like other courts, look to the Constitution, to this Court’s

analysis of the Constitution, and say the Constitution

provides the entitlement to just compensation, not, as far

as I’m aware, an independent common law cause of action.

CHIEF JUSTICE ROBERTS:

Thank you, counsel.

Let’s suppose you bring a -- a -- the state takes some

action, you claim that is a taking, you bring that claim for

just compensation. In the state court, they decide yes, it

was a taking, and so the government owes you $3 million.

And the government says: Wow, we didn’t think it was

worth that much. Here, take it back.

And can they do that?

MR. McNAMARA: To -- to a point, Your Honor. I

think saying here take it back runs afoul of what Justice

Brennan identified in his San Diego Gas & Electric dissent

that ending the taking just creates an uncompensated

temporary taking. And that is why, as this Court noted

in Knick, Justice Brennan’s dissent became the law in

First English, that just stopping the taking creates an

uncompensated temporary taking.

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[35]Certainly, the -- the state is within its rights to

cease a taking if it wants to cease a taking, and it may

be that evidence at trial shows Texas has chosen to cease

the taking here, but the question is and always based on

the full factual record what property interest has Texas

actually taken or has the defendant actually taken -CHIEF JUSTICE ROBERTS: So they can claim

what we’ve taken is a temporary, you know, right, so we

owe you rent, that -- and that’s just compensation?

MR. McNAMARA: Exactly, Your Honor. The -the defendant is always free to say this is -- this is just a

temporary easement or maybe this is a temporary partial

easement.

CHIEF JUSTICE ROBERTS:

that after the fact?

MR. McNAMARA:

And they can say

I -- I think --

CHIEF JUSTICE ROBERTS: We took the whole

thing, we found out we were taking more than we could

-- we’re biting off more than we could chew, and so we’re

going to give it back to you?

MR. McNAMARA: I -- I think that would [36]be a

valid ground for going back to the district court and saying

that the facts have changed. The way -CHIEF JUSTICE ROBERTS:

Okay. Thank you.

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MR. McNAMARA:

Thank you, Your Honor.

CHIEF JUSTICE ROBERTS:

Justice Thomas?

Justice Alito?

JUSTICE ALITO: Well, suppose that going forward

they find a way to divert the water so that it doesn’t cause

flooding in the future. Then what claim would you have?

MR. McNAMARA: I -- I think that would just be a -a claim for a temporary easement, Your Honor. Ultimately,

the property interest in this case would be some kind of

flooding easement. The trial court would have to decide

whether it’s a permanent easement, a partial easement, a

temporary easement, and this is the kind of determination

courts make in takings cases every day.

JUSTICE ALITO: Yeah, and if it’s -- so, if it’s

completely eliminated going forward, your -- your

property is not going to be flooded [37]going forward,

what would the remedy be?

MR. McNAMARA: The -- the remedy -- so, to the

extent the Court found on the facts that Texas had taken

a temporary easement, it would be the fair market value

of that temporary easement.

JUSTICE ALITO:

damages?

MR. McNAMARA:

Would that be different from

Yes, Your Honor, and --

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JUSTICE ALITO: In what way would it be different

from damages?

MR. McNAMARA: So damages are an attempt to

rectify a wrongful act. And so a plaintiff seeking damages

can seek consequential damages. I would have had -- if

you had paid me on time, I would have had this business

opportunity that I had to forego.

JUSTICE ALITO: Yeah, I understand that. So how

would you put a value on the temporary taking?

MR. McNA M A RA: It would be - - generally

speaking, there is testimony from dueling appraisers who

talk about at fair market value what rent someone would

pay for -- for that kind of easement, what a -- a willing

[38]seller would have sold that kind of easement for, but

it’s limited to the fair market value. It’s limited to what

the government took as distinct from what the property

owner may have lost.

JUSTICE ALITO:

Okay. Thank you.

CHIEF JUSTICE ROBERTS:

Justice Kagan?

Justice Barrett?

Justice Jackson?

Okay. Thank you, counsel.

Justice Sotomayor?

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MR. McNAMARA:

Thank you, Your Honor.

CHIEF JUSTICE ROBERTS:

Mr. Nielson.

ORAL ARGUMENT OF AARON L. NIELSON

ON BEHALF OF THE RESPONDENT

MR. NIELSON: Mr. Chief Justice, and may it please

the Court:

The Cou r t w i ll be ha rd-pressed to f ind any

government more committed to property than Texas.

The Texas Constitution is more protective than the federal

Constitution, and Texas courts under a Texas cause of

action adjudicate takings claims under both constitutions.

[39]This appeal thus isn’t about substantive rights.

All Petitioners had to do was use Texas’s cause of action.

Instead, Petitioners insist they can bring a cause of action

directly under the federal Takings Clause itself. This

argument is wrong for many reasons.

For one, it ignores what the Constitution says.

Governments must provide just compensation, but the

Takings Clause says nothing about how they must do it,

whether through commissions, private bills, or litigation.

For another, this Court held in Williams that Congress

may constitutionally -- and I’m going to quote here -- “retain

for itself, the power to hear and determine controversies

respecting claims against the United States.” It follows

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that, again, a quote, “there is no constitutional right to a

judicial remedy.”

As Petitioners concede, Congress did just that for

nearly a century. We don’t see how this Court could hold

for Petitioners without overruling Williams.

[40]And as this Court explained in Knick, states didn’t

start recognizing state causes of action until after the

Fourteenth Amendment’s ratification.

Petitioners argue none of this matters because of First

English, but the Court went out of its way in First English

to emphasize that its decision was about substance, not

procedure.

And if first Williams somehow did include a procedural

holding, Texas satisfies it. We have a cause of action for

federal takings claims. Petitioners simply refuse to use it.

We welcome the Court’s questions.

JUSTICE THOMAS: How would that cause of

action look -- what would it look like?

MR. NIELSON: So I would point the Court to the

Texas Supreme Court’s decision in City of Baytown -JUSTICE THOMAS:

Yeah.

MR. NIELSON: -- and they say, we hear claims

under both the Texas Constitution and under the federal

70a

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Constitution, and then they resolve the claim under Penn

Central, which, of course, is a decision of this Court.

[41]JUSTICE THOMAS: Let’s say we affirm here.

Can Petitioners’ constitutional right be vindicated now in

-- in Texas courts?

MR. NIELSON: Well, in federal court. The problem

is they haven’t pleaded the claim. So, at this point, you’d

have to have leave from the district court to amend their

complaint if they wanted to bring a claim under the Texas

cause of action.

There’s still live claims here. There’s still a claim

under the Texas Constitution itself and they have federal

due process claims. This is an interlocutory appeal.

So they would have to get leave from the district court

to amend their complaint to bring a claim under Texas

common law. They’ve just never done it because they say

they don’t have to.

JUSTICE SOTOMAYOR:

I’m --

CHIEF JUSTICE ROBERTS: Counsel, in -- just a

couple of quotes from cases. In Cedar Point, we said that

the Court in First English “concluded categorically that

the government must pay just compensation for physical

[42]invasion.”

In Knick, it said First English rejects “the view

that the Constitution does not of its own force furnish a

71a

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basis for a court to award money damages against the

government.”

Now we’ve -- we’ve said those in many cases. Those

are just two recent ones -MR. NIELSON:

Correct, Your Honor.

CHIEF JUSTICE ROBERTS:

opinions. So --

-- where I wrote the

(Laughter.)

MR. NIELSON:

Correctly wrote the opinions.

CHIEF JUSTICE ROBERTS: -- so do you have any

dispute with those -- those holdings?

MR. NIELSON: We do not, Your Honor. That’s a

question of the substantive right, which Texas does not

dispute, and you could pursue that claim under the Texas

cause of action in a Texas court or here -CHIEF JUSTICE ROBERTS:

-- the -- it -- it’s -MR. NIELSON:

Honor.

The -- the -- the

-- in federal court -- yes, Your

CHIEF JUSTICE ROBERTS: -- it’s -- [43]it’s the

statement of the -- the right, and that’s a federal right,

right?

72a

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MR. NIELSON:

Yes, Your Honor.

CHIEF JUSTICE ROBERTS: So you can require

that a federal assertion of rights like that be brought in

state court and not in federal court?

MR. NIELSON: Well, it’s brought under a -- a state

cause of action. So, I mean, you can remove -- there’s

diversity jurisdiction or something like that, like any

other sort of cause of action, but the cause of action itself

is created by -- by Texas.

And that’s how it’s been -- as this Court explained in

Knick, that’s how state courts have always done it. Since

1870s, this Court said and onwards -CHIEF JUSTICE ROBERTS:

we said in -MR. NIELSON:

Well, it said -- what

-- that’s how we’ve done it.

CHIEF JUSTICE ROBERTS: -- what we said in

Knick is that the Constitution of its own force furnishes

the basis for a court to award money damages. And you

think what we had [44]in mind is a -- a basis to -- to -- in

state court but not federal court?

MR. NIELSON: When the claim is against a state,

in Knick, the Court said 19 times by our count 1983. Every

time the Court states the holding in Knick, they tie it to

Section 1983 because there’s a difference between the

substantive right and the cause of action.

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In Knick, the cause of action was Section 1983 because

Congress said, if you’re going to sue municipalities or

cities, there you go, there’s the cause of action.

CHIEF JUSTICE ROBERTS: Well, you removed

to federal court, where you couldn’t bring an action under

1983, right?

MR. NIELSON: Correct, Your Honor. We did

remove to federal -- federal court. Two reasons for that.

One, this is not just one case. These are four separate

cases, all putative class actions. They say there’s more

than a hundred plaintiffs here.

Texas -- these are filed in different counties. Texas

has no way to put all of them in a single Texas court. So,

if the cases were [45]going to be in a single court, it had

to be through removal and put them in -- in that court.

The second reason for that was Texas courts don’t

have a lot of experience with implied rights of action,

alleged -- implied rights of action under federal law. This

is the bread and butter of this Court’s -- you guys’ Court

resolves factual -- those types of issues all of the time. So

we thought let’s just get it there, we’ll get everybody in one

case, and we can take out this, you know, putative federal

cause of action, which we think is flatly irreconcilable to

begin with.

CHIEF JUSTICE ROBERTS: So what -- under

what basis would they proceed against the state under

-- under 1983?

74a

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MR. NIELSON: They -- they couldn’t, Your Honor.

There is no such claim. Congress has said that you can

bring claims against cities and municipalities. You cannot

sue the states under Section 1983.

They say they can. So, under Bell v. Hood, they’ve

claimed that there is a federal cause of action. When

someone asserts that a [46]federal cause of action exists,

the federal courts have jurisdiction to decide whether that

is true, and then they can decide on the merits whether

the cause of action exists.

CHIEF JUSTICE ROBERTS: Well, isn’t that a -- a

Catch-22 or -- I mean, you say you -- they have to proceed

in -- in state court. They can’t proceed in federal court.

And as soon as they do, you remove it to federal court

under 1983, where you say they can’t proceed?

MR. NIELSON: Well, we would make the same

argument in state or federal court that there is no federal

cause of action directly under the Fifth Amendment. That

is not -CHIEF JUSTICE ROBERTS: Well, but that’s what

was rejected in the -- in the two cases that I read to you,

Cedar Point and Knick.

MR. NIELSON: With your respect, Your Honor, I

don’t read either of those cases as saying there is a federal

cause of action. There’s certainly a federal substantive

right to relief, but as this Court said in all of the Bivens line

of cases or all the implied right of action cases, the right

75a

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to, you know, a -- a substantive right does not therefore

mean that [47]there is a cause of action.

JUSTICE KAGAN: But, General, do you agree with

Mr. McNamara that if a state takes a person’s property

and doesn’t give compensation, that state is violating the

Constitution every day? It’s an ongoing violation. Do you

agree with that?

MR. NIELSON: That’s not how the Court has -- I

-- I -- I believe -- I certainly agree that’s a violation of the

Constitution. I don’t think this Court’s cases have ever -JUSTICE KAGAN:

It’s an -MR. NIELSON:

But that’s what I want to know.

Sure.

JUSTICE KAGAN: -- ongoing violation of the

Constitution, right? I’ve taken Mr. McNamara’s property. I

haven’t paid him. Every day, I’m violating the Constitution,

correct?

MR. NIELSON:

Yes, Your Honor.

JUSTICE KAGAN: Okay. So aren’t courts supposed

to do something about that?

MR. NIELSON: Yes, Your Honor. And what this

Court said in Knick is, when there’s not a cause of action,

which remember there wasn’t a cause of action, there were

-- you have [48]-- there’s no remedies.

76a

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JUSTICE KAGAN:

MR. NIELSON:

What -- what is injunctive relief --

JUSTICE KAGAN:

different.

MR. NIELSON:

Yeah.

But this is -- this is very

Sure.

JUSTICE KAGAN: You know, in the usual case, we

have a constitutional -- let’s take a Fourth Amendment

case. You know, it’s you’ve searched somebody’s home

illegally.

MR. NIELSON:

Mm-hmm.

JUSTICE KAGAN: It’s happened, and then it’s over,

and then the question is what remedy are you going to be

giving for that violation.

But this is a different kind of violation. It’s not a -- it’s

not even clear that the word “remedy” is appropriate here.

It’s a right to compensation. And the state, by taking the

land and not compensating, is violating that right every

day. It’s not that the state -MR. NIELSON:

Mm-hmm.

JUSTICE KAGAN: -- is failing to [49]provide a

remedy. The state is violating the right to be paid.

77a

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MR. NIELSON: Sure, Your Honor. And I -- I just

-- and the answer would be, if there’s not a cause of action,

that’s why I went back to Knick.

JUSTICE KAGAN:

I mean, in the -MR. NIELSON:

Well, if it’s not a cause of action,

Sure.

JUSTICE KAGAN: -- usual case, suppose that a

state violates Mr. McNamara’s First Amendment rights.

MR. NIELSON:

Yep.

JUSTICE KAGAN:

that?

MR. NIELSON:

relief.

Could he bring a suit about

Yes, Your Honor, for injunctive

JUSTICE KAGAN: Yes. And what Mr. McNamara,

I believe, is saying is that -- that the usual distinction that

we draw, you can bring a right for injunctive relief, but you

can’t -- you can bring a suit for injunctive relief, but you

can’t bring a suit for damages, that’s the usual distinction.

But it sort of falls apart in this [50]case because the

right is a right to be paid.

MR. NIELSON: Yes, Your Honor. And so I -- I -- I

come at this from maybe the other direction. Let’s imagine

that some government said, you know what, we’re not

78a

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going to pay. We’re telling everybody now. Now you are

on notice we are not paying.

Well, then what happens? Before they could do

anything, you would rush to court and you would

say: Injunction. They can’t do it. They’ve promised

they’re not going to pay. They’re not going to provide that.

And the Constitution says, if they don’t, they’re out of

-- they’re -- they’re violating their rights. That’s Eastern

Enterprises v. Apfel, where if there’s -- clear that there’s

not going to be a right to judicial -- to payment, there are

no -- no monies coming, not -- not judicial, but no payments

coming, you can get that injunction right away.

JUSTICE KAGAN:

the point another way.

MR. NIELSON:

I mean, General, let me make

Sure.

JUSTICE KAGAN: I mean, it’s sort of backwards

to say that Mr. McNamara’s client can [51]sue for an

injunction, meaning like, you know, give me back my

property. Actually, the state has a right to take his

property or a prerogative to take -MR. NIELSON:

Yeah.

JUSTICE KAGAN: -- his property. If the state

wants to use his property for a railroad, it doesn’t really

matter that the -- a person doesn’t want to sell. The state

has the ability to take -- the only thing that the state

79a

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does not have the prerogative to do and the thing that the

landowner has a right to have is payment.

MR. NIELSON:

Yes, Your Honor.

JUSTICE KAGAN: So to say, well, look, you can

sue for an injunction but you can’t sue for payment just

doesn’t understand the nature of this right.

MR. NIELSON: Well, so our first-line argument is,

you know, the way the United States did it for a hundred

years is -- is correct. But, if the Court disagrees with that,

if the Court says, you know what, actually -JUSTICE KAGAN: So, General, I kind of agree

with that. Your best argument is like [52]what happened

between the time of the Constitution and, you know,

someplace in the late 19th Century.

But suppose that I’m not such an originalist and I

don’t really care about that.

(Laughter.)

MR. NIELSON: Sure. All right. So the -- that

-- that’s the answer I’m going to say. So, if we -- if the

Court says, we read First English and it requires not

just a substantive relief, it requires some sort of judicial

proceeding, which we don’t think is consistent with the

history, but let’s assume, Texas does it. Texas provides

the cause of action for which they can bring a federal

takings claim.

80a

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So even if that is true, which we don’t believe as our

first-line argument is correct, Texas still wins. They -JUSTICE BARRETT:

though?

MR. NIELSON:

interesting.

What if Texas didn’t do it,

So -- so that’s where we get

JUSTICE BARRETT: But I’m not -- but -- I -- I

-- and I just want to be clear I’m not [53]talking about

the hypothetical you gave where Texas announces in

advance -MR. NIELSON:

Yeah.

JUSTICE BARRETT: -- we’re going to take and

we’re not going to pay. Let’s say that Texas takes and just

this one property owner can’t get the money, the -- Texas

is being intransigent about it.

MR. NIELSON:

Mm-hmm.

JUSTICE BARRETT: And Texas says: And, by the

way, our state cause of action -- we have no state cause

of action for you to use in our courts to get the money, no

private bills. We don’t do that. There’s no state -MR. NIELSON:

Sure.

JUSTICE BARRETT:

-- law remedy. What then?

81a

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MR. NIELSON: All right. So, you know, if a state

goes rogue, that’s how we’re thinking about it, because

we know from Knick all the states don’t do that, but let’s

assume some state says, we’re just not going to do that.

Well, you have injunctive relief. I realize that might not

be a perfect relief -JUSTICE BARRETT:

hypothetical.

Doesn’t work in this [54]

MR. NIELSON: It doesn’t work because of that.

Then the answer is exactly what the Constitution says.

Congress -- Section 5 of the Fourteenth Amendment says,

if a state is violating the Constitution, which would be

happening in this scenario, that’s precisely what Section

5 is for.

Congress has never done that -JUSTICE BARRETT: So they have to wait for

Congress to enforce it through legislation? Would there

be some sort of due process violation or an argument that

the state has to provide some sort of forum?

MR. NIELSON: Well, that’s what I’m trying to

say. If you read First English that way to say that not

only is it there’s a substantive obligation, but there has

to be a -- some sort of judicial forum for -- for, you know,

vindication of that -JUSTICE BARRETT:

forum. It could be --

I -- not, I mean, a judicial

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MR. NIELSON:

Sure.

JUSTICE BARRETT:

I mean, I -- I’m taking -[55]MR. NIELSON:

-- an administrative forum.

Okay. Sure. Sure.

JUSTICE BARRETT: -- your argument about that.

MR. NIELSON:

Okay.

JUSTICE BARRETT: You’re -- you’re really saying

that the state could shut down and give no administrative

forum, no legislative forum, no judicial forum, and because

the Fifth Amendment doesn’t create an implied cause

of action, then the property owner would have to say,

Congress, can you please use your Section 5 power?

MR. NIELSON: The answer would be first try

to get an injunction. That doesn’t always work for the

reasons that you say. In that scenario, yeah, that’s what

the Constitution says.

CHIEF JUSTICE ROBERTS: Well, but we’re talk -JUSTICE GORSUCH:

-- I’m sorry, Chief.

Why -- why -- why -- I’m

CHIEF JUSTICE ROBERTS: I’m sorry. We’re talk

-- those are two governments. I mean, we’re talking about

the ability of the government to take property without

paying for [56]it. The -- the states and Congress may have

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common cause on that. And the idea that, well, you look

to a different government -MR. NIELSON:

Mm-hmm.

CHIEF JUSTICE ROBERTS: - - to tell this

government that that’s not something governments can

do, that’s not much of a remedy.

MR. NIELSON: Well, this Court has cases that

says we trust that Congress takes itself seriously. We

trust that the states take their oath seriously. That’s one

of the premises of Alden v. Maine, that they’re going to

do that. But -JUSTICE GORSUCH: Well, we also -- we also

assume people act in their self-interest.

MR. NIELSON:

Sure.

JUSTICE GORSUCH: And the -- our whole system

of separated powers is premised on that idea. And selfinterest here that would be created isn’t a rogue state but

an incentive for governments not -- not -- to -- to withdraw

their -- their existing causes of action. I think that’s the

thrust -MR. NIELSON:

Yeah.

JUSTICE GORSUCH:

the Chief’s questions.

-- of Justice [57]Barrett and

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MR. NIELSON:

What we --

JUSTICE GORSUCH: And I guess I’m wondering -MR. NIELSON:

Sorry.

JUSTICE GORSUCH: -- why wouldn’t the injunction

order the state to pay?

MR. NIELSON: So that’s a question that has not

been litigated, whether you could have injunctive relief

to pay.

JUSTICE GORSUCH:

MR. NIELSON:

Correct.

JUSTICE GORSUCH:

not telling you how.

MR. NIELSON:

-- just compensation. We’re

Yep.

JUSTICE GORSUCH:

forum.

MR. NIELSON:

Say you have to provide --

We’re not telling you in what

And -- and -- and --

JUSTICE GORSUCH:

commands it.

But -- but the Constitution

MR. NIELSON: Sure. As I said, that’s -- if you

want to read First English that way, Texas has no quarrel

with that because we provide it. And we don’t just provide

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through a [58]commission, though I think we have the

constitutional right to do so. We do it in court. We -JUSTICE BARRETT: But you have to answer -- I’m

sorry. You have to answer the hypothetical.

MR. NIELSON:

Yeah.

JUSTICE BARRETT: I think Justice Gorsuch’s

premise is that Texas isn’t doing this.

MR. NIELSON: Okay. So, if we say that a Texas

doesn’t or -- or some state doesn’t have a -- a court

proceeding and you don’t have any sort -- other sort of

commission, you still can get an injunction, and if you

know the state doesn’t have any of those things, you can

get that injunction very, very, very early.

JUSTICE GORSUCH: And wouldn’t the injunction

say, Texas, you have an obligation -MR. NIELSON:

Mm-hmm.

JUSTICE GORSUCH:

-- to pay?

MR. NIELSON: And this is where I -- I’m not

quarreling because Texas -JUSTICE GORSUCH:

MR. NIELSON:

Okay.

-- as a matter of --

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[59]JUSTICE KAVANAUGH:

concede that?

You don’t want to

MR. NIELSON: -- first principles -- as a matter of

first principles, I don’t know how you get there. But I’m

saying that Texas has no quarrel with it -JUSTICE GORSUCH:

MR. NIELSON:

you’re saying --

Okay. And -- and --

-- because Texas does -- what

JUSTICE KAVANAUGH:

What do you mean --

JUSTICE GORSUCH: I’ve got -- I -- I’ve got it. I’ve

got it. I just want to -- I just want to clear -- clear up two

other things.

MR. NIELSON:

Sure.

JUSTICE GORSUCH: What is the common law

cause of action and what is the state constitutional cause

of action that does exist that you say could have but wasn’t

brought?

MR. NIELSON: That’s right. So the -- the easiest

place to see it because it’s the most recent and I think

the most clear is the Texas Supreme Court’s City of

Baytown -JUSTICE GORSUCH: Right. That just says,

though, as I understand it from your [60]colleague --

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MR. NIELSON:

Yeah.

JUSTICE GORSUCH: -- go look at the federal

Constitution. So how does that help you?

MR. NIELSON: Well, they look at both. They say,

we resolve takings claims under our constitutions, plural,

and then they cite both. And then they -JUSTICE GORSUCH: So Texas has represented

to this Court that there is a state constitutional cause of

action?

MR. NIELSON:

Yes, Your Honor.

JUSTICE GORSUCH: Okay. And is there a common

law cause of action -MR. NIELSON:

Well, that --

JUSTICE GORSUCH:

same thing?

-- that would achieve the

MR. NIELSON: -- that’s what I’m -- that’s what I’m

-- I must have -- I must have misunderstood -JUSTICE GORSUCH:

Beyond --

MR. NIELSON: -- what you were saying. That is

the -- the cause of action.

JUSTICE GORSUCH:

action?

That is the cause of [61]

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MR. NIELSON:

Yeah.

JUSTICE GORSUCH:

here, is what you’re -MR. NIELSON:

No, Your Honor. They --

JUSTICE GORSUCH:

MR. NIELSON:

What does --

-- vigorously resisted --

JUSTICE GORSUCH:

MR. NIELSON:

Okay. And it wasn’t pled

Fine. Fine.

-- the idea that they have to --

JUSTICE GORSUCH: Oh, okay. I got it. And what

-- what cause of action remains pendent as you understand

it?

MR. NIELSON: So they still have claims for federal

due process, and they still have claims for the Texas

Constitution.

JUSTICE GORSUCH: Would you oppose leave to

amend to add a Texas constitutional claim on -- on an

email?

MR. NIELSON: On behalf of the State of Texas, we

would not oppose that in the district court.

JUSTICE GORSUCH:

Okay. Thank you.

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JUSTICE KAVANAUGH:

Justice Gorsuch --

[62]JUSTICE SOTOMAYOR:

-- I’m sorry.

Sorry. But I -- I -- I

JUSTICE KAVANAUGH:

Go ahead.

JUSTICE SOTOMAYOR:

Point of clarification.

MR. NIELSON:

Sure.

JUSTICE SOTOMAYOR: Tell me how they plead

this. Let’s assume we affirm the court below. There’s no

freestanding right to come into federal court and sue

Texas under the Fifth Amendment.

How would they go to the Texas court and make their

Fifth Amendment claim?

MR. NIELSON:

So --

JUSTICE SOTOMAYOR:

the Texas court?

What would they say in

MR. NIELSON: So -- yes. So what they would say

here, and, candidly, the pleadings have never been as

pellucid as I think anyone would have liked, but what I

think that they -- they would say is, we are bringing our

claim under state law, see City -- see, e.g., City of Baytown.

I think that would be sufficient to get us there.

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JUSTICE SOTOMAYOR: That -- that’s -- [63]my

gosh. I’ve never heard of pleadings in any state where

you had to mention the law at issue.

MR. NIELSON:

Well, that’s the --

JUSTICE SOTOMAYOR:

facts -MR. NIELSON:

Well --

JUSTICE SOTOMAYOR:

and then you -MR. NIELSON:

Usually you mention the

-- or you state the facts

Well --

JUSTICE SOTOMAYOR: But putting that aside,

here, they say violation of Article I, Section 17 of the Texas

Constitution for the taking, damaging, or the destruction

of their property. That’s Count 1.

MR. NIELSON:

Yes, Your Honor.

JUSTICE SOTOM AYOR: A nd Count 2 says

violation of the Fifth Amendment of the U.S. Constitution.

MR. NIELSON:

Yes, Your Honor.

JUSTICE SOTOMAYOR: Summarizing basically. I

don’t know what else they would have had to do in Texas

court if I cite that case.

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MR. NIELSON:

It --

JUSTICE SOTOMAYOR: They said, I’m [64]suing

you in Texas court. You’re the one who removed to federal

court.

MR. NIELSON:

Yes, Your Honor.

JUSTICE SOTOMAYOR: This seems to me like a

totally made-up case because they did exactly what they

had to do under Texas law. It’s you who are telling me -- it’s

almost a bait and switch -- that you wanted to get to federal

court to basically have a class action and you couldn’t do it

in state court, so -- but you had to fight something, which

-- I don’t know what you’re fighting because you’re telling

me that Texas lets them have a cause of action under the

Fifth Amendment.

MR. NIELSON: Yes, Your Honor. There’s no bait

and switch here, I want to be clear on that, no bait and

switch.

JUSTICE SOTOMAYOR:

removed.

Well, you’re the one who

MR. NIELSON: We removed, and they didn’t come

back and say, oh, no, you misunderstand what we’re saying.

Instead, every step along the way, they have doubled down

all the way going to cert, you know, seek certiorari review

from this Court.

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[65]So, if we misunderstood what they were saying -JUSTICE SOTOMAYOR: So, if -- if they go back

down and say to the district court, this has been remanded

to the district court, all we want is just compensation

under the Texas Constitution and the Fifth Amendment

under that case that you’re mentioning, that’s okay and

you’re not going to resist that?

MR. NIELSON:

that, Your Honor.

We -- we -- we would not resist

JUSTICE SOTOMAYOR:

Okay.

JUSTICE KAVANAUGH: On Justice Gorsuch’s

injunction-to-pay hypothetical, I just want to make sure

I’m clear on that.

MR. NIELSON:

Yeah.

JUSTICE K AVANAUGH: I thought you were

saying we don’t need to answer that question in this case

because Texas provides forums for compensation.

MR. NIELSON: Yes, Your Honor. Conceptually, I

don’t know how you get an injunction to pay money.

JUSTICE KAVANAUGH:

But -- but --

MR. NIELSON: I’m not familiar with [66]that, but

that’s blowing apart --

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JUSTICE KAVANAUGH:

but even in the -MR. NIELSON:

I -- I understand that,

Yeah.

J USTICE K AVA NAUGH: - - the theoretical

possibility of it is just not present here, right?

MR. NIELSON:

Correct, Your Honor.

And, as I said, it’s hard for me to quarrel with it

because Texas does pay money. But, conceptually, I don’t

know how you get there.

JUSTICE KAVANAUGH:

MR. NIELSON:

Yeah.

If I may --

JUSTICE JACKSON: What about a declaration?

What about a declaration? Is that something different?

MR. NIELSON:

A declaration? I --

JUSTICE JACKSON:

MR. NIELSON:

Could you sue for -- for --

Sure.

JUSTICE JACKSON: -- declaratory judgment that

Texas or whatever state is not paying you?

MR . NIELSON: So my understanding of a

declaratory judgment action is it sounds in [67]equity,

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not in damages. So I think it would fall within the -- the

universe of Ex parte Young type remedies. So we wouldn’t

have any objection to that either, though, again, I -- I -- I’m

a little bit shooting from the hip, so I apologize it wasn’t

briefed on that one, so I’m -- I’m a bit nervous on that.

JUSTICE JACKSON:

Yes.

MR. NIELSON: Though, I mean, I -- if I -- if I may,

I would like just to make a couple of affirmative points.

CHIEF JUSTICE ROBERTS:

that later.

MR. NIELSON:

Well, no, you can do

Oh, I apologize, Your Honor.

CHIEF JUSTICE ROBERTS:

Yeah.

Justice Thomas?

Justice Alito?

JUSTICE ALITO: Well, why don’t you quickly make

an affirmative point.

(Laughter.)

MR. NIELSON: Well, I would just like to say that

as far as I am aware, Texas is the only party here that

has offered evidence on the original public meaning of the

actual language [68]of the text, not the ideas, the actual

language of the Constitution. And when courts looked at

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that language, they read it precisely the same way that

Texas does now.

CHIEF JUSTICE ROBERTS:

JUSTICE ALITO:

Anything further?

Thank you.

CHIEF JUSTICE ROBERTS:

Justice Sotomayor?

Justice Gorsuch?

Justice Jackson?

Thank you, counsel.

MR. NIELSON:

Thank you, Your Honor.

CHIEF JUSTICE ROBERTS:

Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER

FOR THE UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE RESPONDENT

MR. KNEEDLER:

please the Court:

Mr. Chief Justice, and may it

The Fifth Amendment to the United States Constitution

does not of its own force create a cause of action against

the government under the Fifth Amendment against the

United States Government for damages.

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Numerous provisions of the [69]Constitution make

that clear, including the text of the just compensation

clause itself. It says property shall not be taken, no person

-- property shall not be taken for public use without just

compensation.

The right is not to have the property taken without

compensation. It’s not a right to compensation. And this

-- it’s prohibitory. It has a condition for the -- governmental

action to be lawful. That condition is the payment of

compensation. If there’s not compensation, then the action

is unlawful, and what lies is an injunction to cease the

taking of the property.

This Court in -- in a number of recent -- relatively

recent cases has made that point. In Ruckelshaus

versus Monsanto, in Dames & Moore, in the railroad

reorganization cases, the question really was, should there

be an injunction preventing this statute from going into

effect, or is there compensation available under the Tucker

Act such that an injunction would not be appropriate?

In all of those cases, that’s what the Court held, that

there was compensation available. But that -- the the very

question [70]presupposed that there might be situations in

which compensation was not available. That’s the violation.

And the -- the same thing, if you look at the overall

context of the Fifth Amendment, that is also true. It -the preceding clause, as Justice Alito pointed out, says

that no person shall be deprived of property without due

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process. The prohibition is the -- deprivation, the condition

-- without -- without the condition of due process.

If a court finds a violation, it doesn’t order due process.

It orders -- it enjoins the conduct that was undertaken

without due process. The government can always go back

and do it over again with due process.

And -- and, finally, there’s another clause in the

Fifth Amendment that is written in exactly the same

way, the indictment clause. It says a person shall not be

held for a capital or otherwise infamous crime unless

on a presentment of an indictment. An indictment is the

condition precedent to having a lawful holding of somebody

for a crime, and one -CHIEF JUSTICE ROBERTS:

in the -MR. KNEEDLER:

Mr. Kneedler, [71]

Yeah.

CHIEF J

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