By the end of June, a group of about 75 Texas landowners who allege the state repeatedly flooded their properties as a result of a highway project should know whether they can proceed with their lawsuit seeking compensation for the “taking” of their property.
The U.S. Supreme Court this week heard oral arguments in Devillier v. Texas, and many of the court’s questions focused on both the history of the Fifth Amendment takings law — which states that the government cannot take private property for public use, like a highway project, without “just compensation” — and the unusual procedural history of this case specifically.
“The risk when you take an appeal is that you could make bad law,” said Daniel Charest of Burns & Charest, who is the lead trial attorney for the landowners. “There’s a real risk here that states will recede from their present support for property rights and then you end up in a place where states can take property without paying for anything.”
“It’s a bigger case than I thought it was.”
The landowners, who live along the Interstate 10 corridor in Chambers, Liberty and Jefferson counties, filed their lawsuit against Texas in state courts, alleging a solid concrete barrier that was installed as part of the project that also elevated the interstate effectively acted as a dam during heavy rain events, holding flood waters on their properties, some of which had been in their families for more than five generations with no history of flooding.
While Texas has a right to take private property for public use, it is required to pay for the taking of that property, even if the taking is temporary.
Texas exercised its right to remove the cases to federal court, had them consolidated and then moved to dismiss the takings claim, arguing that, while the Fifth Amendment entitles property owners to just compensation, it doesn’t create an “implied cause of action” for a claim against the state. Instead, Texas argued, the landowners are required to bring their takings claim under section 1983, which allows individuals to sue a “person” for depriving them of their rights.
U.S. Magistrate Judge Andrew M. Edison, in his July 2021 report and recommendation, said the suit should be allowed to move forward and took exception to Texas’ stance, writing that a state or a state agency can’t be sued for a constitutional violation under section 1983.
“As applied to this case, the net effect of requiring plaintiffs to bring their federal constitutional takings claim under § 1983 against the state would be to end the claim before it even began. This is exactly the approach the state champions,” he wrote. “It is a classic Catch-22: plaintiffs must bring their federal takings claim against the state under § 1983, but such claims are dead on arrival because plaintiffs cannot bring their federal constitutional claims against the state under § 1983. I find the state’s stance incredibly myopic.”
Under Texas’ argument, he wrote, the state can take property from a private citizen without paying just compensation and leave the citizen without a remedy.
“This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense,” he wrote. “It is pretzel logic.”
U.S. District Judge Jeffrey Brown seemingly agreed and adopted the recommendation that the landowners be allowed to proceed with their takings claims in an August 2021 order.
Texas then took its fight to the Fifth Circuit. Judges Patrick E. Higginbotham, Leslie H. Southwick and Stephen A. Higginson heard oral arguments on Nov. 8, 2022, and issued a three-sentence ruling vacating the district court’s ruling on Nov. 23, 2022.
Both sides requested the court rehear the case en banc.
That request was denied on March 23, with only Judges Jerry E. Smith, Jennifer Walker Elrod, Kurt D. Engelhardt, Andrew S. Oldham and Cory T. Wilson voting in favor of rehearing and 11 voting against.
Judges Higginbotham and Higginson, who sat on the original panel, both authored concurrences in the denial of rehearing en banc.
Judge Higginbotham wrote that there is no cause of action in federal court for takings claims against a state.
“The pathway for enforcement in takings by the state is rather through the state courts to the Supreme Court,” he wrote. “On that passage, the Supreme Court of Texas applies both federal and state law. Its decisions on state law control, and Texas state law provides the procedures for fulfilling the State’s obligations under the Takings Clause for takings by the state.”
The same congress that authored section 1983 could have provided the pathway urged by the landowners, Judge Higginbotham wrote, “but it is telling that it has not.”
“This move is above our paygrade,” he concluded.
Judge Oldham authored a dissent, joined by the four other judges who voted in favor of rehearing en banc, taking aim at Texas’ argument and at his colleagues.
“The panel decision renders federal takings claims non-cognizable in state or federal court,” he began. “This breaks with centuries of precedent. And the panel did it in a one-paragraph decision with one sentence of analysis. The panel’s sources for this remarkable holding? A Bivens case and a 1992 Ninth Circuit decision. No matter what one thinks about the merits of this question, it plainly requires more explanation than that.”
Usually the court issues one-paragraph holdings for cases on its summary calendar, Judge Oldham wrote, and not for “pathbreaking constitutional rulings” that upend centuries of case law.
“The case is now over, barring Supreme Court intervention. And not just for these plaintiffs,” he wrote. “The panel decision is an insuperable obstacle to any plaintiff asserting any federal takings claim against any State in federal or state court. If this case is not enbancworthy, then it’s unclear how any case ever will be.”
Supreme Court intervention came on Sept. 29, when the high court granted the landowners’ petition for writ of certiorari.
Justice Clarence Thomas began the court’s questioning Tuesday by asking Robert McNamara of the Institute for Justice, who argued for the landowners, how he could square the history of the law with the argument he’s making now.
“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,” Justice Thomas said. “Doesn’t that seem to be at odds — the fact that the courts there had to resort to extraconstitutional causes of action — isn’t that at odds with your argument now?”
McNamara said he didn’t believe so because the “primary problem” those courts were facing was jurisdiction, which he said is “conceptually distinct from the question of whether there’s a cause of action, whether there’s a right to a remedy.”
Justice Amy Coney Barrett followed up with another question about the history of the Fifth Amendment. The landowners have argued that those who ratified the Fifth Amendment in 1791 had to have seen the amendment as supplying a cause of action to “vitiate the takings right — the right to just compensation,” she said.
“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 generation, the ratifying generation, viewed it that way,” she said. “… [W]e have all of this time throughout the 19th century of Congress enacting private bills to provide just compensation, and I think you have to contend with that because … there’s kind of a mountain of historical evidence you’ve got to contend with.”
McNamara said he didn’t believe “that mountain does quite the work that Texas needs it to.” The problem here, he said, is mapping the modern conception of a 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,” he said. “But if you asked them can a property owner sue to enforce just compensation, the answer absolutely would have been yes.”
The question the justices are tasked with answering in this case is:
“May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?”
There is a circuit split on the issue, with the Fifth and Ninth Circuits both having held that claims for just compensation are only available if legislatively authorized. On the other side, many state supreme courts, citing the U.S. Supreme Court’s 1987 holding in First English Evangelical Lutheran Church v. County of Los Angeles, have held that they can hear takings clause cases without the need for legislative authorization.
McNamara said adopting Texas’ argument in this case would have far-reaching ramifications.
“My concern is that adopting Texas’ argument tells all of these state courts that have pointed to First English and said this is the source, the Fifth Amendment is the source of the cause of action, would look to a decision adopting Texas’ arguments and say ‘OK, 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.”
Texas made the “unusual decision” to remove this case to federal court, McNamara said.
“But if First English is right and the 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.”
Chief Justice John Roberts questioned Texas Solicitor General Aaron L. Nielson, who argued for the state, about some of the court’s recent decisions that could cut against his argument.
“In Cedar Point [Nursery v. Hassid] we said that the court in First English concluded categorically that the government must pay just compensation for physical invasion. In Knick [v. Township of Scott] it said First English rejects the view that the constitution does not, of its own force, furnish a basis for a court to award money damages against the government,” he said. “We’ve said those in many cases, those are just two recent ones where I wrote the opinion. So, do you have any dispute with those?”
Nielson said those cases are different and Texas does not dispute the holdings because they dealt with whether there’s a substantive right. The landowners here could have pursued that right under a Texas cause of action in a Texas court, he said.
Chief Justice Roberts asked Nielson why Texas had removed the case to federal court where the 1983 action couldn’t be brought. Nielson said there were two reasons: Texas courts lacked a mechanism to consolidate the four lawsuits filed in three counties at issue in this case.
“The second reason is Texas courts don’t have a lot of experience with implied right of action under federal law,” Nielson said. “That is the bread-and-butter of this court. We thought let’s get it in federal court and take out this putative cause of action.”
Chief Justice Roberts asked under what basis the landowners here could proceed with their claims against the state under section 1983. Nielson said they could not because Texas isn’t a city or municipality.
“Isn’t that a Catch-22?” Chief Justice Roberts asked. “You say they have to proceed 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?”
Nielson said the state’s argument here would be the same if the case were proceeding in state or federal court: There is no federal cause of action directly under the Fifth Amendment.
Chief Justice Roberts was unsatisfied with the answer.
“But that’s what was rejected in the two cases I read you, Cedar Point and Knick,” he said.
Pushing back, Nielson said those cases dealt with whether there was a substantive right to relief, not with whether there was a federal cause of action.
Nielson also fended off questions about whether Texas was orchestrating a “bait and switch” with its procedural moves in this case.
“There’s no bait and switch here,” he said. “I want to be clear on that: — no bait and switch.”
The case number is 22-913.