Our Amicus Brief in Devillier v. Texas—an Important Takings Case Before the Supreme Court

The amicus brief is on behalf of the Cato Institute and myself.

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Yesterday, the Cato Institute and I filed our amicus brief in Devillier v. Texas, an important takings case before the Supreme Court. The brief builds on arguments we previously made in our earlier brief urging the justices to take this case.

I previously wrote about the issues at stake in this case here:

In its important decision in Knick v. Township of Scott (2019), the the Supreme Court reversed Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that made it almost impossible to bring takings cases against state and local governments in federal courts….

In a forceful opinion for the Court, Chief Justice John Roberts denounced this "Catch-22" and emphasized that "[a] property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it…."

Access to federal court is crucial to protecting constitutional rights against violation by state and local governments….

Unfortunately, a recent decision by the US Court of Appeals for the Fifth Circuit (which covers the states of Texas, Louisiana, and Mississippi) goes against the principles outlined in Knick and threatens to create a new Catch-22 keeping takings claims out of federal court.

In Devillier v. Texas,…. a Fifth Circuit panel ruled that federal courts have no jurisdiction to hear takings claims against state governments because the Fifth Amendment doesn't create such jurisdiction, and there is no federal statute establishing it either….

What the court says is simply false. The Fifth Amendment does indeed create a "direct cause of action" against state governments, no less than other provisions of the Bill of Rights do. Nothing in the text or original meaning of the Constitution suggests otherwise….

Even worse, the Fifth Circuit ruling creates precisely the kind of Catch-22 that Knick forbids. Indeed, it may be even worse! This case ended up in federal court in the first place, because—after the plaintiffs initially filed in state court—the state of Texas removed the case to federal court under 28 U.S. Code Section 1441, which allows defendants to remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction."

Under the approach adopted here by the Fifth Circuit, takings claims against state governments cannot be brought in federal court. And if they are instead brought in state court, the defendant state can remove them to federal court and then force their dismissal!….

This is actually even worse than the Williamson County regime, under which takings claims could at least be litigated in state court…

I am guardedly optimistic that the Supreme Court will reverse the awful Fifth Circuit ruling and prevent it from gutting Takings Clause rights for millions of people. The flaws of the Fifth Circuit ruling are covered in greater detail in an earlier post about this case, and in our amicus brief itself.

Many thanks to our lawyer, former Supreme Court clerk Caroline Lindsey (Hilgers Graben PLLC), who represented us pro bono and did an excellent job of hammering my ideas into more coherent form, and adding some great additional points.