Devillier v. State of Texas, 63 F.4th 416

Background

72 property owners (and several entities) sued the State of Texas in state court, alleging IH-10 construction created a concrete barrier that flooded their land and constituted a taking without just compensation.
Plaintiffs pleaded state-law inverse-condemnation claims and federal constitutional claims under the Fifth Amendment (as incorporated by the Fourteenth) and related due-process theories; they sought damages and equitable relief.
Texas removed the cases to federal court under 28 U.S.C. § 1441; the district court denied the State’s motion to dismiss the federal takings claims and the case proceeded on a § 1292(b) certified interlocutory order.
A three-judge Fifth Circuit panel issued a one-paragraph opinion holding that the Fifth Amendment Takings Clause (as applied to states) does not provide a right of action against a State in federal court, vacated the district court’s order, and remanded for further proceedings.
The court denied rehearing en banc. Concurring opinions (Higginbotham, Higginson) defended leaving state-court pathways intact; Judge Oldham (joined by four judges) dissented, arguing the panel’s disposition improperly foreclosed any forum for federal takings claims and misapplied jurisdictional principles.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Fifth Amendment (as incorporated) supplies an implied federal cause of action against a State for takings	Devillier: Takings Clause is self-executing; plaintiffs may pursue just compensation directly in federal court without § 1983	Texas: No express or implied cause of action against States; § 1983 is the only federal vehicle and it does not reach States	Majority: No implied federal cause of action against a State; enforcement of state takings claims lies through state courts and Supreme Court review
Whether Knick’s “self-executing” language creates federal jurisdiction independent of statutory grants like § 1983	Devillier: Knick means property owners can bring federal takings claims at time of taking without state-court exhaustion	Texas: Knick relied on § 1983 and did not create a standalone jurisdictional route against States	Held: Knick’s “self-executing” point addresses claim completeness, not jurisdictional grant against States; it does not eliminate need for a federal jurisdictional vehicle
Whether removal to federal court waived the State’s sovereign immunity and whether federal courts had removal jurisdiction	Devillier: State’s removal waived sovereign immunity (Lapides); removal implies federal-law cause of action	Texas: Removal was proper because plaintiffs’ complaints raised federal questions; but sovereign immunity and § 1983 limits bar merits relief	Held: Court concluded no federal cause of action against State; concurrences emphasize state-court pathway remains; dissent argued removal should have produced remand if no federal cause of action
Whether the panel’s dismissal was jurisdictional (requiring remand) or a merits decision (barring refiling) and the consequence for plaintiffs’ forum	Devillier: Panel improperly converted lack of cause of action into a jurisdictional defect and thereby extinguished plaintiffs’ federal forum	Texas: Panel held plaintiffs lacked a federal right of action such that federal courts cannot award relief against the State	Held: The en banc denial leaves the panel outcome intact; concurrences explain that the correct enforcement route for state takings is state courts up to the U.S. Supreme Court; dissent contends the panel’s merits disposition wrongly forecloses all relief

Key Cases Cited

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (property owner suffers a Fifth Amendment violation at time of taking; emphasized § 1983 as mechanism to sue municipalities)
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) (held that the Takings Clause is remedial and that invalidation without compensation can be constitutionally insufficient)
Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (States are not ‘persons’ amenable to suit under § 1983)
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (absence of a valid cause of action is a merits issue, not a jurisdictional defect)
Bell v. Hood, 327 U.S. 678 (1946) (federal-question jurisdiction exists where a right or immunity created by federal law is an element of the plaintiff’s cause of action)
Merrell Dow Pharm. v. Thompson, 478 U.S. 804 (1986) (federal issue embedded in state cause of action may not supply federal-question jurisdiction when Congress chose not to create a federal cause of action)
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983) (a suit generally arises under the law that creates the cause of action)
Maine Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020) (discussion of implied constitutional causes of action and reliance on statutory remedies like the Tucker Act for federal takings claims)
Hernandez v. Mesa, 140 S. Ct. 735 (2020) (Bivens-era guidance: courts should be cautious about implying damages remedies against the federal government)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (origin of implied damages remedy against federal officers; cited by majority/dissent on implication framework)
Ziglar v. Abbasi, 582 U.S. 120 (2017) (admonishes judicial restraint in implying constitutional causes of action)
Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299 (1923) (constitutional entitlement to compensation cannot be taken away by statute)
Jacobs v. United States, 290 U.S. 13 (1933) (Fifth Amendment provides the basis for inverse-condemnation suits)
Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893) (compensation is a judicial question; the Constitution mandates just compensation)
Ex parte Young, 209 U.S. 123 (1908) (equitable doctrine permitting suits for prospective relief against state officials)