Devillier v. State of TexasDevillier v. State of Texas
ON A POLL ON THE COURT‘S OWN MOTION
Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
At the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing (
In the en banc poll, five judges voted in favor of rehearing (Smith, Elrod, Engelhardt, Oldham, and Wilson), and eleven voted against rehearing (Richman, Jones, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, and Douglas).
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in denial of rehearing en banc:
Property Owners filed suits in Texas state courts claiming that the flooding of their land by the State of Texas constituted a taking under the Takings Clause. The State removed the cases to federal court asserting federal question jurisdiction. The State moved to dismiss the takings claims, arguing that the Fifth Amendment does not create an implied cause of action, the State is immune from monetary liability, and some claims were barred by the limitations period. The district court denied the motion, finding that the Plaintiffs-Property Owners could advance their claims directly under the Takings Clause. The panel disagreed. The Fifth Amendment Takings Clause does not provide a right of action in federal court for takings claims against a state.1 The pathway for enforcement in takings by the state is rather through the state courts to the Supreme Court. On that passage, the Supreme Court of Texas applies both federal and state law.2 Its decisions on state law control, and Texas state law provides the
In short, the en banc court did not err in rejecting the contention that “self-executing,” as used in Knick, creates federal jurisdiction and need not find a jurisdictional grant such as
I.
Takings by the state have been addressed and overseen by state courts throughout our history, with review by state supreme courts and then review by the Supreme Court. It signifies that it is that genre of cases—and not takings by municipalities—that is at issue. As I will explain, this flow of cases is no accident.
The en banc court rejected the contention that the “self-executing” character of the Takings Clause grants direct access to federal courts, and for good reason. It is plain that “self-executing” speaks only to the completeness of the claim itself, the point at which a takings claim is ready for a court. Chief Justice Roberts explains:
Because of “the self-executing character” of the Takings Clause “with respect to compensation,” a property owner has a constitutional claim for just compensation at the time of the taking.5
The completeness of the claim is the sole usage of the term. Its purpose was to retreat from the earlier Williamson County doctrine.6 The Court then explains that the claim can be immediately pursued in the federal courts by
That
In turn, this passageway for state takings informs the lower federal courts with takings cases from municipalities and local government entities of the controlling state law defining property rights. Again, this is neither accident nor is it an exhaustion requirement. It is the familiar service of federalism expressed in the choice of routes for review of state actions in their upward path to the Supreme Court.
Casting aside both the utility and the service to federalism of the pathway to the Supreme Court through state courts by granting immediate access into the lower federal courts of state takings would reflect a distrust of the state courts to apply federal law as they are obligated to do.9 State judges take the same oath to faithfully apply the law as do federal judges, and with all deference to our federal brethren, leaving in place passages to state supreme courts for state takings claims brings the well-equipped eyes of those dealing with state property interests on a daily basis, as they have done all these many years. In sum, the contentions we reject would work a profound upset of state-federal relations. This strained effort to drain state courts of state takings claims as reflected in the procedural gymnastics of this case come with no rational justification. Whatever its fuel, it is without legal foundation.
At present, and for the past 100 years, all but one of the states have met their obligations under the Fifth Amendment to provide procedural pathways for the termination of condemnation cases.10 As Justice Black reminded us in Testa v. Katt, federal law is state law.11 It is not foreign law.12 The state courts are thus obligated to follow federal law perforce constitutional law. Here, the Takings Clause, by its own language, charges the states to provide just compensation for takings.13 Texas did that, providing a pathway through state courts of takings claims both in its constitution and legislation for more than a century.
From the beginning the Fifth Amendment charged the states to provide compensation for its takings to protect the peoples’ property. State courts were the enforcers of all claims against the state for all state takings in all but one state. When
If the present effort of this suit is an expression of distrust of state courts, it comes with a large price, both to this Court and to this structure. In short, no case has been made for rerouting state takings to the lower federal courts, bypassing the superintendence of the state supreme courts who share their responsibility for the last word on state law with the United States Supreme Court‘s final word on their federal component. So, our question is, what is the need? There simply is no rational reason to disturb the procedural paths of this genre of cases. It is in place and working effectively, as it has throughout our history. To do so would upset the structures of all but one of the states in the union, a pristine exemplar of federalism—not just a political slogan, but the heart of our splitting of the atom of sovereignty.
We have a Congress. It wrote STEPHEN A. HIGGINSON, Circuit Judge, concurring in denial of rehearing en banc: This case is about whether there is an implied cause of action in the Fifth and Fourteenth Amendments for claims that “due process of law . . . requires compensation to be made to the owner of private property taken for public use under the authority of a state.” Chi., B. & Q.R. Co. v. City of Chi., 166 U.S. 226, 235 (1897). Because implying constitutional causes of action is “a disfavored judicial activity,” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (citation omitted), and because implying such a cause of action here would infringe separation-of-powers principles, I concur in denial of rehearing en banc. Three terms ago, in Maine Community Health Options v. United States, every Justice agreed that “the Constitution did not expressly create a right of action when it mandated just compensation for Government takings of private property for public use.” 140 S. Ct. 1308, 1328 n.12 (2020) (cleaned up); see id. at 1334 & n.3 (Alito, J., dissenting). It follows that any cause of action in the Takings Clause to sue the federal government for just compensation, if it exists, is implied. Eight of the Justices who decided Maine Community Health Options appear to have assumed that the Takings Clause creates an implied cause of action to sue the United States. Those Justices pointed out that property owners can bring takings claims against the United States “through the Tucker Act,” which “waive[s] immunity for certain damages suits in the Court of Federal Claims” but “does not create substantive rights.” Me. Cmty. Health Options, 140 S. Ct. at 1327, 1328 n.12 (cleaned up); see So, if the Fifth Amendment had applied directly to the states at the Founding, this might be a straightforward case. But the Takings Clause is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. See Chi., B. & Q.R. Co., 166 U.S. at 235. The question before us, then, is whether the Due Process Clause of the Fourteenth Amendment “made applicable to the States” an implied cause of action against the federal government, along with the rest of the Takings Clause. Dolan v. City of Tigard, 512 U.S. 374, 383 (1994). One answer to the incorporation dilemma is the proposition that an implied cause of action, if it exists, would be part of the property owner‘s “irrevocable right to just compensation . . . upon a taking.” Knick v. Township of Scott, 139 S. Ct. 2162, 2172 (2019). Accordingly, when the substantive right guaranteed by the Takings Clause was incorporated against the states, so was a corresponding implied cause of action against the states, or so the argument goes. This line of reasoning appears to follow the “well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” McDonald v. City of Chi., 561 U.S. 742, 766 n.14 (2010). However, that theory assumes that an implied cause of action against the federal government for takings claims is intrinsic to the property owner‘s right to just compensation as opposed to a distinct right that would require separate incorporation against the states. See Ramos v. Louisiana, 140 S. Ct. 1390, 1405 n.63 (2020) (“The scope of an incorporated right and whether a right is incorporated at all are two different questions.“). Since a cause of action against the federal government is not express in the Fifth Amendment, see Me. Cmty. Health Options, 140 S. Ct. at 1328 n.12, if such a cause of action exists, it must be “judicially created,” Egbert, 142 S. Ct. at 1802.1 And it is not obvious why a cause of action fashioned by judges—not the Constitution—would be coextensive with a substantive constitutional right such that incorporation of one would incorporate There is at least one other reason to think that a judicially created cause of action to enforce the Takings Clause, separate and distinct from the right to just compensation, was not automatically incorporated against the states along with the substantive right. The Takings Clause is “enforced against the States under the Fourteenth Amendment according to the same standards that protect . . . against federal encroachment.” Malloy v. Hogan, 378 U.S. 1, 10 (1964) (emphasis added); see McDonald v. City of Chi., 561 U.S. 742, 765 (2010). Accordingly, while a property owner has the same “irrevocable right to just compensation immediately upon a taking” by a state as by the federal government, Knick, 139 S. Ct. at 2172, the enforcement of that right against a state is contingent on the Due Process Clause. For a takings claim against a state to be “under the Fourteenth Amendment” in more than name only, Malloy, 378 U.S. at 10, the relevant cause of action would presumably need to be implied in the Due Process Clause as well.3 The upshot of this analysis is that an implied cause of action for takings claims against states has not been incorporated by the Due Process Clause of the Fourteenth Amendment and therefore would need to be independently implied from the constitutional text. “When a party seeks to assert an implied cause of action under the Constitution itself . . . [t]he question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citation omitted). We will not recognize an implied constitutional cause of action if “there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S. Ct. at 1803. There are four warning signs that this court would “arrogate legislative power” The dissent does not grapple with the incorporation dilemma or justify implying a cause of action in the Fifth and Fourteenth Amendments. See Me. Cmty. Health Options, 140 S. Ct. at 1328 n.12 (2020) (“[T]he Constitution did not expressly create a right of action when it mandated just compensation for Government takings of private property for public use.“). Instead of offering a theory of incorporation or implication, the dissent contends that federal courts have long entertained takings claims against states, invokes cases where “[t]he Court affirmed the self-executing nature of the Fifth Amendment,” and identifies First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), as a case where the Supreme Court held that a statutory cause of action is not required to recover just compensation under the Takings Clause. But the dissent‘s authorities fall short of supporting its argument. First, the dissent invokes pre-incorporation cases where federal courts considered takings claims against states. However, as the dissent notes, Congress had provided a jurisdictional basis for federal courts to hear state-law takings causes of action pre-incorporation. So those cases don‘t illuminate whether the Due Process Clause of the Fourteenth Amendment incorporated an implied cause of action for takings claims against states or whether the cause of action should be implied now. Second, the dissent relies on post-incorporation cases adjudicating takings claims against municipalities, not states. See Vill. of Norwood v. Baker, 172 U.S. 269 (1898); Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462 (1916); Del., L. & W.R. Co. v. Town of Morristown, 276 U.S. 182 (1928); Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).4 These claims today could be brought under Even if these older cases did assume without deciding that an implied cause of action existed, that‘s unsurprising because the Supreme Court‘s more recent decisions have cast aside the method of finding causes of action in the Constitution where Congress is silent and an alternative remedial framework exists. See Egbert, 142 S. Ct. at 1803; Ziglar, 137 S. Ct. at 1854. And a procedural vehicle exists in every state‘s law to enforce takings claims.5 See Knick, 139 S. Ct at 2168 & n.1. Next, the dissent says that the Supreme Court has “affirmed the self-executing nature of the Fifth Amendment again and again throughout the twentieth century.” But the dissent does not and cannot maintain that these cases implied a cause of action against the states in the Fifth and Fourteenth Amendments. With two exceptions, the cases that the dissent cites did not involve claims against states or present the question of whether an implied federal constitutional cause of action exists against states. See Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 (1984); United States v. Clarke, 445 U.S. 253 (1980); United States v. Dickinson, 331 U.S. 745 (1947); United States v. Causby, 328 U.S. 256 (1946); Jacobs v. United States, 290 U.S. 13 (1933). And neither of the cases that did arguably raise the issue—First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), and Knick v. Township of Scott, 139 S. Ct. 2162 (2019)—resolved it. In First English, the petitioner had sued in state court alleging that a County ordinance denied it “all use of” its property. Id. at 308. The complaint “invoked only the California Constitution,” id. at 313 n.8, and sought damages for the lost use of the property, id. at 308. But under a California Supreme Court decision, Agins v. Tiburon, 598 P.2d 25 (Cal. 1979), “compensation [was] not required until the challenged Before reaching the merits, the Court addressed several challenges to the Court‘s jurisdiction that the County raised, including that First English “failed to preserve for review any claim under federal law.” Id. at 313 n.8. After all, First English‘s complaint didn‘t raise any federal claims. Id. But First English had argued in the state appellate court that the Agins rule was unconstitutional, and the state appellate court applied Agins to dismiss the action nonetheless. Id. Because the state appellate court “rejected on the merits the claim that the [Agins] rule violated the United States Constitution,” the state court “considered and decided the constitutional claim” that the ordinance violated the federal Takings Clause by failing to provide just compensation. Id. On this basis, the Court found that it had appellate and certiorari jurisdiction. Id. The United States filed an amicus brief in support of the County. The United States acknowledged that “a temporary taking of property is clearly within the constitutional proscription that private property shall not be taken for public use without just compensation.” Brief for the United States as Amicus Curiae Supporting Appellee, First English, 482 U.S. 304 (No. 85-1199), 1986 WL 727420, at *11. But the United States argued that neither the Fifth Amendment nor Fourteenth Amendment, “of its own force, furnish[es] a basis for a court to award money damages against the government.” Id. at *14. In defending this contention, the United States claimed that “the Takings Clause is strictly prohibitory and does not, without further legislative action, mandate a monetary award against the government,” and made a similar argument with respect to the Fourteenth Amendment. Id. at *14, *26-*30. The United States also noted that Even assuming that the United States “squarely presented” the Supreme Court “with the question whether [ Knick doesn‘t resolve the issue, either. There, the Court held that a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under In short, we have long outgrown the ”ancien regime that freely implied rights of action.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (cleaned up); Cantú v. Moody, 933 F.3d 414, 421 (5th Cir. 2019) (similar). This case, I ultimately conclude, is no exception. Accordingly, I concur in the denial of rehearing en banc. ANDREW S. OLDHAM, Circuit Judge, joined by SMITH, ELROD, ENGELHARDT, and WILSON, Circuit Judges, dissenting from the denial of rehearing en banc: The panel decision renders federal takings claims non-cognizable in state or federal court. 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. In two concurring opinions respecting the denial of en banc rehearing, two members of the panel purport to provide the reasoning that the published panel opinion did not. And both of my esteemed colleagues say this appeal is much ado about nothing because plaintiffs are free to litigate their federal takings claims in state court. Wrong. Plaintiffs already tried that, but the State removed the cases. And rather than ordering the case remanded to state court, the panel held that plaintiffs’ claims “arise under” federal law for removal purposes but “arise under” state law for merits purposes. Based on that deeply wrong misstep, the panel then adjudicated plaintiffs’ federal takings claims on the merits. Finis. Res judicata. The case is now over, barring Supreme Court intervention. And not just for these plaintiffs. 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. The plaintiffs are 72 individuals, one corporation, and four limited liability companies Plaintiffs alleged that the concrete barrier created a dam that barricaded rainfall from flowing into the Gulf of Mexico and instead flooded plaintiffs’ properties: The State of Texas removed all four actions to federal court under The State then moved to dismiss (1) the state-law takings claim and (2) the federal takings claim. Regarding the federal claim, the State argued that ” The magistrate judge recommended denying the State‘s motion in a powerful and incisive opinion. The magistrate judge (correctly) noted: “This thinking [by the State] eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic.” ROA.1279. The district court agreed with the magistrate judge and adopted the report and recommendation. Then the district court certified its order for interlocutory review under We accepted the certification and vacated the district court‘s order. The panel decision is one paragraph long. In one sentence, the panel dispensed with plaintiffs’ federal claim: “Because we hold that the Fifth Amendment Takings Clause as applied to the [S]tates through the Fourteenth Amendment does not provide a right of action for takings claims against a [S]tate, we VACATE the district court‘s decision for want of jurisdiction and REMAND with instructions to return this case to the state courts.” Devillier v. Texas, No. 21-40750, 2022 U.S. App. LEXIS 32519, at *1 (5th Cir. Nov. 23, 2022) (per curiam). That sentence is plainly wrong for a host of reasons. First and foremost, the absence of a cause of action is a merits problem, not a jurisdictional one. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.“); Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.“); 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (3d ed. Apr. 2022 update) [WRIGHT & MILLER] (“Nor, as many courts have noted, should a motion under Rule 12(b)(1) be confused with a motion under Rule 12(b)(6) to dismiss for failure to state a claim for relief under federal or state law because the two are analytically different; as many courts have observed, the former determines whether the plaintiff has a right to be in the particular court and the latter is an adjudication as to whether a cognizable legal claim has been stated.“). Second, the panel apparently forgot that the case came to us on a Third, rather than discussing any of the Supreme Court‘s decisions under the Takings Clause, the panel‘s only support for its assertion was a footnote reference to two unrelated cases: The Supreme Court‘s most recent Bivens decision, Hernandez v. Mesa, 140 S. Ct. 735 (2020), and the Ninth Circuit‘s aged decision in Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992). Fourth, one-paragraph opinions with one-sentence explanations are usually reserved for our summary calendar, not pathbreaking constitutional rulings depriving property owners of any forum, state or federal, for claims under centuries-old constitutional provisions. Both sides pointed out these and other errors in cross-petitions for rehearing. And the Institute for Justice filed a motion for leave to file an amicus brief supporting rehearing en banc because “the Panel failed to discuss or even mention the line of Supreme Court cases establishing, repeatedly and clearly, that the Fifth Amendment‘s Takings Clause is self-executing and needs no statutory recognition.” IJ Amicus at 2. The putative amicus also argued: [T]he Panel‘s holding has immense practical ramifications for this Circuit in particular. Regardless of whether Texas allows its courts to hear and enforce takings claims against state entities, Louisiana does not. The holding below, unless corrected, leaves property owners in Louisiana without any vehicle for vindicating fundamental constitutional rights. Such a result, correct or otherwise, deserves more explanation than the Panel provided. Again without explanation, the panel denied IJ‘s motion for leave to file its amicus brief. And again without explanation, it then denied the petitions for rehearing. Crucially, however, it revised its one-sentence rejection of plaintiffs’ takings claims to make clear that it was rejecting them on the merits—and hence with prejudice to refiling them anywhere. Specifically, the panel deleted its previous reference to the district court‘s jurisdiction and replaced it with this: “Because we hold that the Fifth Amendment Takings Clause as applied to the [S]tates through the Fourteenth Amendment does not provide a right of action for takings claims against a [S]tate, we VACATE the district court‘s decision and REMAND for further proceedings.” Devillier v. Texas, 53 F.4th 904 (5th Cir. 2023) (per curiam) (footnote omitted). The panel left unchanged its footnoted reference to a Bivens case and a Ninth Circuit decision from 1992. See id. at 904 n.1. And it again refused even to discuss a single one of the myriad Takings Clause cases or arguments proffered by the plaintiffs and the Institute for Justice. This appeal should‘ve begun and ended with the State‘s decision to remove to federal court under First, the State‘s decision to remove obviously constitutes a waiver of its sovereign immunity. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002). In 2019, the Supreme Court held that federal takings plaintiffs are free to bring their claims in federal court in the first instance. See Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (overruling Williamson Cnty. Reg‘l Plan. Comm‘n v. Hamilton Bank, 473 U.S. 172 (1985)). That Second, the State removed under [A] federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action. . . . For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff‘s complaint establishes that the case “arises under” federal law. A right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff‘s cause of action. Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10-11 (1983) (quotations and footnote omitted). Consider, for example, Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986). In that case, the plaintiff brought a state tort action predicated on the allegation that a drug company violated a federal misbranding standard. The drug company tried to remove on the theory that the federal misbranding standard was an essential element to plaintiff‘s cause of action and obviously appeared on the face of the complaint. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152–53 (1908). The Supreme Court held the action was not removable because to hold otherwise would “flout” Congress‘s decision not to create a federal cause of action for such misbranding claims. Merrell Dow, 478 U.S. at 812. Because the State—and only the State—created the plaintiff‘s cause of action, the Court held the suit had to stay in state court. The fact that the entirety of the case was predicated on a federal misbranding standard was irrelevant.1 The State‘s decision to invoke Second, and alternatively, federal law does not give plaintiffs a cause of action to litigate their federal takings claims—as the panel opinion concluded in its one-paragraph opinion. It‘s true, after all, that The panel tried to follow this second route in its first opinion. It said: “[W]e VACATE the district court‘s decision for want of jurisdiction and REMAND with instructions to return this case to the state courts.” Devillier, No. 21-40750, 2022 U.S. App. LEXIS 32519, at *1 (emphases added). But then the State reminded the panel that the “[a] long line of precedent makes clear that lack of a cause of action is not a jurisdictional defect.” Texas Pet. for Reh‘g at 5 (citing, inter alia, Steel Co. and Bell v. Hood). So the panel amended its decision to say: [W]e VACATE the district court‘s decision Devillier, 53 F.4th at 904. This second decision was thus a merits determination and hence a with-prejudice dismissal. See Steel Co., 523 U.S. at 88-89. But The panel‘s decision is not just wrong, it also has staggering implications because it renders federal takings claims non-cognizable in any court at any time ever. Under the old Williamson County regime, before Knick overruled it, plaintiffs were forced to litigate their federal takings claims in state court. And the only federal review a property owner could get was from the Supreme Court exercising its certiorari jurisdiction under The plaintiffs in this case attempted to litigate their claims in state court—just as the plaintiffs did in Murr, Stop the Beach, Palazzolo, Lucas, and Nolan. And obviously the plaintiffs didn‘t need a federal cause of action to do that; the state courts are full of litigants who do not have federal causes of action. And even without a federal cause of action, the plaintiffs could‘ve litigated their federal takings claims all the way through the state court system and then gone to the Supreme Court of the United States under The panel decision reduces the Takings Clause to nothing. Think about what now happens when landowners in our Circuit have their property taken by the State. The landowner can try to bring a federal takings claim in state court; the State removes; the federal court must assert jurisdiction and dismiss the claim with prejudice under the panel‘s published decision in this case. Likewise if the landowner tries to bring suit originally in federal district court. So the landowner now has only two choices—both of which render the Takings Clause a dead letter. The landowner can abandon the federal claim and sue solely under state law in state court—as if the People never bothered to ratify the federal Takings Clause in the first place. Of course, as the Institute for Justice pointed out in its inexplicably rejected amicus brief, that does nothing for landowners in Louisiana because that State does not afford its citizens a state-law takings remedy. See IJ Amicus Br. at 9-10 (citing Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans, 29 F.4th 226, 228 (5th Cir. 2022) (“[S]ince Louisiana courts lack the power to force another branch of government to make an appropriation, the prevailing plaintiff has no judicial mechanism to compel the defendant to pay. The plaintiff who succeeds in an action against a governmental unit thus becomes a supplicant, relying on the grace of the government to appropriate funds to satisfy her judgment.” (quotation omitted))). A Louisiana landowner must instead “rely exclusively upon the generosity of the judgment debtor.” Ariyan, 29 F.4th at 232 (quotation omitted). The landowner‘s only other alternative is to ask the Supreme Court to reverse us. Finally, under the panel‘s decision, the federal Due Process Clause claims pending in federal district court fail too. After all, plaintiffs cannot use Now let‘s talk about the merits. The State‘s position, adopted by the panel, is that claims under the Takings Clause can be raised only under At the Founding, it was clear that the Takings Clause afforded a remedy for uncompensated takings separate and apart from any statute. For example, in proposing the Takings Clause as part of the Bill of Rights, James Madison emphasized that federal courts would enforce the clause directly: “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights. . . .” James Madison, Amendments to the Constitution (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 197, 207 (Charles F. Hobson et al. eds., 1979) [MADISON PAPERS]; see also William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 794–95 & n.69 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1660–61 & nn.158–61 (1988). Thus in his famous essay, Property, Madison emphasized that the Constitution itself protected property owners from uncompensated takings: If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues . . . such a government is not a pattern for the United States. James Madison, Property, NAT‘L GAZETTE (Mar. 27, 1792), reprinted in 14 MADISON PAPERS, supra, at 266, 267–68. Still, the Marshall Court held that the Takings Clause applied only to takings by the federal government and not to takings by the States. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250–51 (1833) (Marshall, C.J.). And even as to takings by the federal government, Congress chose to remedy them with “private” acts before the Civil War. See RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART & WECHSLER‘S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 897 (7th ed. 2015) [HART & WECHSLER]. “While Congress was the forum for takings claims, it did not have discretion to deny takings claims mandated by the Takings Clause.” Treanor, supra, at 794 n.69. Rather, early Congresses’ approach to By this legislation congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893) (citing, inter alia, Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420 (1837)). And starting at the Founding, federal courts entertained suits arising from uncompensated takings by States. The first Congress enacted two statutes—the Process Acts of 1789 and 1792—that directed inferior federal courts to borrow common-law causes of action from the States where they sat. See It‘s unclear why Congress‘s enactment of Post-incorporation, federal courts adjudicated these claims under the Constitution The Court has not only entertained claims outside of the The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. . . . The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. . . . The suits were thus founded upon the Constitution of the United States. Jacobs v. United States, 290 U.S. 13, 16 (1933). The Court affirmed the self-executing nature of the The State of Texas is not the first party to try this The Solicitor General pointed out that First English “did not rely on 42 U.S.C. 1983 in the California courts; nor has it done so in this Court.” Id. at *32 (emphasis added). The Solicitor General contended that this failure was fatal to the Court‘s ability to reach the merits of the takings issue because, in the Government‘s view, The Supreme Court was thus squarely presented with the question—in a case where the takings plaintiff did not rely on The Solicitor General urges that the prohibitory nature of the Fifth Amendment, combined with principles of sovereign immunity, establishes that the Amendment itself is only a limitation on the power of the Government to act, not a remedial provision. The cases cited in the text [including Kirby, Causby, First English, 482 U.S. at 316 n.9 (emphases added) (quoting Brief for the United States as Amicus Curiae Supporting Appellee, supra, at *14). True, many plaintiffs invoke Takings litigation has a rich history in our Nation, separate and apart from any statute. And the Supreme Court has said that the Takings Clause provides a remedy to property owners, separate and apart from any statute. So if we‘re going to say that it‘s The panel‘s disposition of this case is far worse than the bad-old days of Williamson County. The Williamson County regime made it impossible to bring suit in federal court against States (or any other defendant) for taking property in violation of the Takings Clause. Rather, the Court held that all federal takings claims must be brought in state court—subject to review, if at all, only in the Supreme Court on certiorari. See Williamson County, 473 U.S. at 194-97. The panel decision in our case appears to embrace that same result: Yes, plaintiffs who lost land alongside IH-10, you have a federal right under the Takings Clause, but no, it cannot be vindicated in the inferior federal courts. But two points about this Williamson-County-revivified holding bear emphasis. First, the Supreme Court overturned Williamson County in Knick, and it‘s not our prerogative to say otherwise. See Knick, 139 S. Ct. at 2179. And second, the panel‘s decision is even worse than Williamson County because under today‘s decision, plaintiffs who sue in state court can have their cases removed and dismissed before any court ever passes on the merits. Given the terseness of the panel‘s disposition, it‘s hard to know for sure what all went into its two decisions. It‘s also hard to know why the panel did not cite the Supreme Court‘s takings precedents, much less explain them away. Today, two members of the panel issue comparatively scopious opinions to defend the rejection of plaintiffs’ claims. There are at least five First, the parties have a right to know why their claims are being adjudicated on the merits and barred from refiling in any court at any time. And they have a right to know that before their time for seeking rehearing expires—to say nothing of the time for petitioning the Supreme Court for certiorari. But in this case the parties cross-moved for rehearing, a putative amicus sought to participate in rehearing, and all of the motions were denied before they had any understanding of why. What‘s worse, the plaintiffs even had to file their petition for certiorari before they had an explanation for why their claims were adjudicated on the merits and subjected to res judicata. See Petition for Writ of Certiorari, Devillier v. Texas (No. 22-913). And it is little comfort to say the plaintiffs had the panel opinion‘s lonely paragraph of explanation, which pales in comparison to what we offer (for example) in single-judge opinions for pro se litigants who request a certificate of appealability. See, e.g., Faye v. Vannoy, No. 17-30809, 2018 WL 11446637, at *1 (5th Cir. Nov. 7, 2018). Second, the most telling thing about today‘s concurring opinions is what they do not say. Neither offers a single word of explanation, rebuttal, or disagreement with Part II of this dissent. That is, our en banc court apparently agrees that (1) plaintiffs’ claims arise under federal law for purposes of making them removable under Third, JUDGE HIGGINSON says the panel footnoted a Bivens case because, in its view, this is a case about “implied cause[s] of action.” Ante, at 9 (Higginson, J., concurring). But the fact that the Moreover, the panel‘s footnoted analogy to Bivens does nothing to confront one of the most profound truths in all of constitutional law and federal courts: “The constitutional text refers to only two remedies: (1) a right to just compensation for takings and (2) the privilege of the writ of habeas corpus.” HART & WECHSLER, supra, at 330. That sets these two constitutional rights apart from others and at least suggests these two rights—even if not all others in the Constitution—have special protections against congressional abrogation or dereliction. Cf. Battaglia v. Gen. Motors Corp., 169 F.2d 254 (2d Cir. 1948) (analyzing congressional effort to deny any forum, state or federal, to raise a constitutional claim). Indeed, the Court has held that the Constitution‘s protection for habeas corpus rendered invalid a congressional restriction on federal jurisdiction for habeas claims. See Boumediene v. Bush, 553 U.S. 723 (2008); HART & And even if the cause of action is “implied,” Bivens still is the wrong framework. See ante, at 11 n.1 (Higginson, J., concurring). The cause of action for takings claims pre-dated Bivens by over a hundred years and traces its lineage all the way to the Founding. It therefore cannot be dismissed as “judicial genesis” of the same sort that begat Bivens. Ibid. Fourth, JUDGE HIGGINSON‘s reliance on Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), is misplaced. That case involved a statutory right of action under the Tucker Act for takings claims against the federal government. See id. at 1331. But it said nothing about situations like this one where Congress does not enact a statutory cause of action. In fact, the Court expressly declined to decide whether plaintiffs could bring their claims under the Takings Clause because the Tucker Act provided them with just compensation: “Having found that the Risk Corridors statute is a money-mandating provision for which a Tucker Act suit lies, we need not resolve petitioners’ alternative arguments for recovery based on an implied-in-fact contract theory or under the Takings Clause.” Id. at 1331 n.15. And faced with no statutory cause of action in First English, the Court did decide that the Takings Clause provided an independent cause of action. See 482 U.S. at 315-16; see Part III.B, supra. Fifth and finally, JUDGE HIGGINBOTHAM suggests the panel referenced the Texas Supreme Court because it thinks federal takings claims are cognizable in Texas‘s courts but not ours. Ante, at 4 (Higginbotham, J., concurring). There are at least three problems with that. First, as explained in Part II, supra, plaintiffs cannot relitigate their claims in state court. They have been adjudicated on the merits here. So the case is now over. And by exerting Second, the Supreme Court has repeatedly said that the Takings Clause guarantees plaintiffs just compensation regardless of whether States provide 100% relief in state court or under state law. See, e.g., Knick, 139 S. Ct. at 2170–71; First English, 482 U.S. at 315, 316 n.9; Jacobs, 290 U.S. at 16; Seaboard, 261 U.S. at 304; Chicago, 166 U.S. at 233–41; see also Palazzolo, 533 U.S. at 615-17 (Supreme Court entertaining takings claim against a State based on the federal Constitution, not state statute); Woolhandler & Mahoney, supra, at 681 (indicating that between Reconstruction and the New Deal, federal courts commonly exercised federal question jurisdiction to hear takings claims). Moreover, even if the State of Texas would otherwise provide a remedy to Texans who sue in state court and somehow manage to avoid removal of their claims to federal court, the State of And third, just because federal rights can be vindicated in state court, it does not follow that these rights cannot be vindicated in federal court. Under JUDGE HIGGINBOTHAM‘s contrary logic, we would be obligated to dismiss every single * * * Much more could be said about the evolution of the federal cause-of-action requirement from the Process Acts to Ex parte Young to I.
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for want of jurisdiction and REMAND with instructions to return this case to the state courts for further proceedings.III.
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