Is there an express cause of action under the Takings Clause?

Can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction? (And a connection to the bumpstock litigation)


Today the Supreme Court decided Maine Community Health Options v. United States. This 8-1 decision held that the ACA's "Risk Corridors" provision created an obligation to pay insurers for their losses, even if Congress subsequently repealed the appropriation. I have only followed this ACA issue from a distance. It does not implicate any of the core constitutional issues I've written about in two–and soon, three–books.

The case turned on some of the nuances of the Tucker Act. Justice Sotomayor's majority opinion explains this important statute:

The United States is immune from suit unless it unequivocally consents. United States v. Navajo Nation, 556 U. S. 287, 289 (2009). The Government has waived immunity for certain damages suits in the Court of Federal Claims through the Tucker Act, 24 Stat. 505. See United States v. Mitchell, 463 U. S. 206, 212 (1983). That statute permits"claim[s] against the United States founded either upon theConstitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U. S. C. §1491(a)(1).

In this case, the Plaintiffs brought suit in the Court of Federal Claims, pursuant to the Tucker Act. But is it possible to sue the federal government for an unconstitutional taking, without relying on the Tucker Act? That is, does the Takings Clause itself create an express cause of action.

In Footnote 12, the majority said it does not:

By the dissent's contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not "expressly create . . . a right of action," post, at 3, when it mandated "just compensation" for Government takings of private property for public use, Amdt. 5; see also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315–316 (1987). Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law. E.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016– 1017 (1984) (citing United States v. Causby, 328 U. S. 256, 267 (1946)).

Two observations. First, Justice Alito's dissent (p. 3) did not say "the Constitution did not 'expressly create . . . a right of action.'" The majority mischaracterized the dissent. Justice Alito said nothing about the Constitution. He was talking about federal law. He wrote:

The Tucker Act, 28 U. S. C. §1491, under which petitioners brought suit, provides a waiver of sovereign immunity and a grant of federal-court jurisdiction, but it does not create any right of action. See, e.g., United States v. Navajo Nation, 556 U. S. 287, 290 (2009). Nor does any other federal statute expressly create such a right of action.

This error should be corrected before the opinion is formally published.

Second, the citation to Monsanto isn't directly on point. Here is the relevant passage from the 1984 decision:

Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking. Larson v. Domestic & Foreign Commerce Corp. (1949). The Fifth Amendment does not require that compensation precede the taking. Hurley v. Kincaid (1932). Generally, an individual claiming that the United States has taken his property can seek just compensation under the Tucker Act, 28 U. S. C. § 1491. United States v. Causby (1946) ("If there is a taking, the claim is `founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine"); Yearsley v. Ross Construction Co. (1940).

Monsanto did not hold that "there is no express cause of action under the Takings Clause." That issue was not decided. Did Justice Sotomayor's footnote reach an unresolved constitutional ruling? I am not enough of an expert on the Tucker Act to opine. But based on my reading, the Court extended the ruling from Monsanto. And it did so without any analysis. Moreover, this ruling was not necessary to the Court's holding: the plaintiffs did rely on the Tucker Act. And Justice Alito didn't say anything about the Constitution? I suspect the Justices may have buried a "time bomb" here.

Let's put aside the footnote for a moment. Is the Court correct as a matter of first principles? What would have happened if the Congress never enacted the Tucker Act in 1887? Could the federal government take property without paying "just compensation"? People could still petition Congress for "just compensation." Indeed, that history probably explains why the Court of Claims was created in 1855 as an Article I court.

Imagine if Congress repealed the Tucker Act. Would people be forced to go back to Congress? Or would the federal courts find that the Takings Clause, standing by itself, creates an express cause of action for damages? Let me state the question differently. Is it possible to sue the federal governments for "just compensation" without relying on the Tucker Act's jurisdiction?

This question has some bearing on my writings about the bump stock litigation. See Parts I, II, III, and IV. Today, the government filed its new motion to dismiss in that case. Here is a relevant excerpt:

This Court does not "need to assess whether the final rule is a correct interpretation of [18 U.S.C. § 922(o)] in deciding whether there was a compensable taking." Mem. Op. at 13. Plaintiff does not challenge the Rule itself, but instead, has pleaded a claim for compensation under the Little Tucker Act. See Compl. ¶ 48. This approach is consistent with precedent under the Tucker Act mandating that, "for the Court to possess jurisdiction over a takings claim, the 'claimant must concede the validity of the government action which is the basis of the taking claim.'" Jackson v. U.S., 143 Fed. Cl. 242, 247 (Fed. Cl. 2019) (quoting Tabb Lakes v. U.S., 10 F.3d 796, 802 (Fed. Cir. 1993)). Because "the grant of jurisdiction" in the Tucker Act "is practically identical to that" of the Little Tucker Act, Kipperman v. McCone, 422 F. Supp. 860, 868 (N.D. Cal. 1976), this Court should conclude that the validity of the Rule is not placed at issue in Plaintiff's takings claim

But what if the the claimant does not "concede the validity of the government action," and for that reason seeks compensation? That is, the Plaintiff alleges that he is due compensation precisely because the government lacked the enumerated power to seize and destroy his property. In other words, the executive branch did not have the requisite constitutional authority to seize the devices in the first place.

The long-awaited fifth installment is still in the works. It will address the following question: can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction–if not under the Takings Clause, perhaps under some theory of tort.

NEXT: Fifth Circuit Anti-BDS Lawsuit Dismissed as Moot

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  1. Does “validity” mean “legitimacy” or “accuracy”?

    I’d argue that it could mean both, so which does it mean here?

  2. If a claimant must concede that a governmental action was valid in order to come to court (because a claim without a judicial venue is of little worth), it seems this itself takes much, and leaves little but a meagre recovery of the value of what was taken, if that.

    1. I think, and I use that very specifically I have not researched so this is my inclination, the Tucker Act (or Little Tucker Act) only comes in when the claim is for damages. Sovereign Immunity is a doctrine that prevents suits for damages (money reparations). The (Little) Tucker Act is a waiver of sovereign immunity so by it’s terms would only apply in Takings cases where damages are sought. There is no need for damages (just compensation) if the Taking isn’t valid in the first instance.

      There are other statutes (and perhaps the constitution itself) that allows a person to sue the government for prospective or injunctive relief which is what you’d be asking for if you think the Taking itself isn’t Constitutional (read: valid)

  3. I’m not sure what your beef on the first issue is about, or what the majority needs to correct. The majority (at least in the part you quoted) did not say or suggest that Justice Alito mentioned the Constitution. *They* mentioned the Taking Clause to make a point that If Alito’s rule were the law, then takings claims also could not be brought under the Tucker Act.

  4. IANAL and maybe that’s my problem. Is this post, and/or the Supreme Court, seriously claiming that someone whose property has been illegally taken would have no recourse absent the Tucker Act, except to petition Congress, because sovereign immunity means you can’t sue for the value of your property except where the Tucker Act graciously allows it?

    That sounds incredibly self-serving, and I wonder how anyone espousing such a narrow opinion could possibly think as broadly of the Commerce Clause, the Necessary and Proper Clause, and a whole raft of others.

    1. IANAL either, but I think that if we roll back the lock it is exactly as you suggest / fear. Without the Tucker Act, and the Court of Claims, then just the fact that the constitution says the government can’t do it, does not create a pathway for action. The King can’t do that? What do you mean “can’t”? The King May not do that, but the King just did that. It’s just like the Supreme Court telling Andrew Jackson he couldn’t deport the Cherokee. He proved otherwise.
      A couple of decades back, here in Texas, there was a case where an original land grant, from the 1830’s or 40’s, perhaps from the period of the Republic, the survey had been mis-recorded in some way. And so there was a wedge-shaped piece of land which, on the books, belonged to no one except the state. The farmer had been farming it for many decades, there was no doubt he was in possession, so to speak. But his title was defective.
      Can you guess what it took to correct the title? No court had the power; there was no cause for action. Not even the legislature could correct, because the legislature cannot simply give away state land. No. It took a Constitutional Amendment, proposed by the Legislature and approved by Referendum! It passed by a pretty wide margin, it wasn’t controversial, but that was the only way it could be done.

    2. Look up the Bivens case and it’s progeny.

      The Court has recognized claims directly under the Constitution but not all agree with it and its contours aren’t easy to figure out. This area of the law is kind of in flux and The Court has said that finding a Bivens remedy is disfavored and some even that they won’t recognize any new Bivens cause of actions. Generally though the government can create a different track to sue for damages and that would foreclose damages directly under the constitution. By doing that they can better tailor the remedies. And in some instances have said there isn’t a remedy directly under the constitution for some acts and therefore you would need a statute granting jurisdiction.

  5. I would have assumed the appropriate remedy would be prohibition/injunction of the actual taking (since a precondition to the taking is just compensation) or a declaration that the taking was invalid and the title in the property remains with the plaintiff.

    Of course, that is useless where the property is destroyed.

  6. This post is horrible.
    First, they mentioned the Takings clause because by it’s terms it is the same as the statute. It creates and obligation. The question is whether creating the obligation created a right or action. Alito said it doesn’t. The Court correctly pointed out how that would be an issue to the Fifth Amendment.

    Second, they didn’t cite Monsanto for the proposition that there is no express right or action. That is clear from the text. Nor did the cite to show there is an implied right. They cited the Luthern Church case for that. They cited the Monsanto opinion for the proposition that Takings claims can be brought under the Tucker Act. Proving their point that case law has shown that creating an obligation to pay, by the constitution or statute, is enough to show an implied right of action. It also shows that an implied right of action is enough to satisfy the Tucker Act, it doesn’t have to be expressed as Alito claimed.

    1. I’ve had the same confusion re what Blackman was basing his statements on.

  7. Only lawyers find these cases difficult.

    The Constitution, or a statute, says the the government has an obligation to make a payment in some specified circumstance.

    But suddenly we have lengthy legal debates over this, complete with case citations, precedents, latin phrases, whatever.

    You know what? Fuck all that. It’s pointless. If the law says the US government has to pay then the presumed recipient of the payment can go to court and demand payment.

    The rest is bullshit.

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