United States: The Fifth Amendment's Takings Clause – Does It Mean What It Says?

This term, the United States Supreme Court is poised to address whether the Fifth Amendment's Takings Clause provides an independent cause of action for plaintiffs seeking redress against states for takings.

The Fifth Amendment provides: "nor shall private property be taken for public use, without just compensation." As any law student will tell you, this simple clause means that when the government takes private property, the U.S. Constitution dictates that the government must provide the owner with just compensation. In DeVillier v. Texas, the Court will address this clause head-on, and decide whether the constitutional text — in and of itself — provides litigants with a federal cause of action against states who "take" their property. The Court's decision will have far-reaching implications for litigation against states, and property owners' ability to vindicate their rights in federal court.

Petitioner Richard DeVillier is a landowner outside of Houston whose property abuts Interstate Highway 10, a thoroughfare that runs through southern Texas, connecting El Paso to Houston and beyond. The Texas Department of Transportation endeavored to raise the highway and construct a concrete dam near DeVillier's property to prevent stormwater from flooding the highway. The complaint alleges that the dam served its purpose. As the rains fell, the wall proved impenetrable and vast quantities of water accumulated north of the highway, repeatedly flooding DeVillier's property. Photographs submitted as part of the briefing demonstrate the extent of the flooding, turning DeVillier's property into a veritable lake. Before the dam, stormwater had previously flowed south, eventually finding its way to the Gulf of Mexico, but after the Department's highway project, the water has nowhere to go. It remains trapped on DeVillier's farmland, causing recurrent damage and rendering the property virtually useless.

DeVillier filed suit against Texas in state court for claims under state law and the Taking Clause of the Fifth Amendment. DeVillier argued that Texas had "taken" his land, and accordingly owed him just compensation. Texas promptly removed the case to federal court, and consolidated DeVillier's case with countless other landowners who sought redress for the exact same reason. Texas argued that the plaintiffs did not have a federal claim against Texas under the Fifth Amendment since Congress had not passed any legislation providing private litigants with any claim against the states. Takings claims, Texas argued, could only be brought against states under 42 U.S.C. § 1983. And since Texas was immune from suit under the Eleventh Amendment, Texas argued that plaintiffs' only redress was via state law.

The district court rejected Texas' argument entirely, holding that the Takings Clause does not need any legislation to equip a plaintiff with a federal cause of action because the constitution itself expressly provides a remedy for aggrieved citizens — i.e. "just compensation." That remedy not only exists, the district court explained, it is a constitutional mandate. The district court also noted the odd posture of the case, since states so rarely choose to invoke federal-question jurisdiction to remove inverse condemnation cases to federal court. Texas' affirmative decision to remove the case, according to the district court, meant that Texas had waived its immunity from suit under the Eleventh Amendment. Texas' motion to dismiss was denied, and Texas appealed.

The Fifth Circuit reversed, disposing of the case in a per curiam opinion with a simple, yet dramatic holding: "Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we VACATE the district court's decision, and REMAND for further proceedings." The Fifth Circuit denied rehearing en banc, and DeVillier took his case to Washington D.C. The Supreme Court granted certiorari on September 29, 2023, and oral argument was held on January 16, 2024.

At the Supreme Court, DeVillier's primary arguments are straight-forward. First, DeVillier argues that the Takings Clause comes stock with its own remedy — no legislation is required to implement or effectuate the only constitutional provision with a "money-mandating legal obligation." Second, DeVillier contends that the Court's decisions, in First English v. County of Los Angeles, 482 U.S. 304 (1987) and others, establish that suits for just compensation do not need "[s]tatutory recognition" because they are "founded upon the Constitution of the United States itself." The Takings Clause, the Court explained in First English, is "self-executing."

Unsurprisingly, Texas disagrees. Texas grants the full force of the Fifth Amendment in providing a remedy to a right, but contends that no part of the text suggests that the clause provides for a federal claim against a state. Texas scours the historical record and observes that in the first century of the republic's existence, private bills were the primary method of redressing Takings Clause claims. Texas notes that private bills accounted for one sixth of the unpublished records for the first seventy nine Congressional session — more than 500,000 such claims between 1789 and 1909. This history, Texas argues in its brief, guts DeVillier's argument: "If the Fifth Amendment, ratified in 1791, created a cause of action, it would not have taken nearly a century for anyone to make use of it." Texas bolsters its interpretation of this history by pointing out that Congress must appropriate funds for all expenses, and a private right of action would be incompatible with the Congressional power of the purse. Reading an implied right of action under the Takings Clause would put Uncle Sam on the hook for financial expense that Congress had not appropriated, and thereby vitiate a core tenant of the constitutional system. In essence, Texas contends that the Fifth Amendment did not, and does not, provide an independent right of action against the federal government on its own. The passage of the Fourteenth Amendment, therefore, did not incorporate any such right of action against the states.

The Tucker Act from 1887, Texas argues, demonstrates this constitutional precept. With the Tucker Act, Congress expressly chose to waive its sovereign immunity for takings claims, which suggests that only through statute — and the Court of Federal Claims, which the Tucker Act created — does a private litigant have a right of action against the federal government for takings. The Fourteenth Amendment could not, therefore, incorporate a cause of action against the states via the Fifth Amendment which did not independently exist against the federal government. Vindicating one's Fifth Amendment rights against the federal government, Texas insists, has always taken an act of Congress. So too for states.

Ever present in the briefing and argument is the presence of state common law remedies, and the question of whether, and to what extent, such remedies vindicate the Fifth Amendment's protection. Justice Gorsuch made legal headlines sparring with Petitioner's counsel at oral argument on this exact point — whether Texas state law provides a perfectly sound remedy for DeVillier's grievance. Whether the Court ultimately agrees, only time will tell.

But the states themselves are divided. Sixteen states filed an amicus brief in support of Texas, arguing that "recognizing an implied right of action" under the Takings Clause would undermine state sovereignty. The issue, however, is certainly more complex, as some states have assumed that the Takings Clause provides for an independent cause of action in their own common law. Although Oregon signed onto an amicus brief with sixteen other states in support of Texas, counsel for DeVillier noted at oral argument that Oregon's own jurisprudence expressly invokes First English, and provides just compensation to property owners for takings on the basis that the Fifth Amendment mandates it. Thus, depending on how the Court decides DeVillier, takings law in Oregon may be in store for a doctrinal shake-up.

Generally speaking, if the Court reverses the Fifth Circuit, then takings litigation against the states, including Oregon, may harmonize as federal jurisprudence grapples with the more technical questions. Although state property law will continue to apply, federal courts will decide whether a taking has occurred, whether that taking and transfer serves a "public use" under Kelo v. New London, 545 U.S. 469 (2005), and the bounds of "just compensation." Jurisdictional questions will surely proliferate as well, as many states will not choose — as Texas did in DeVillier — to remove such claims to federal court. If, on the other hand, the Court affirms the Fifth Circuit, and holds that the Takings Clause does not contain an independent cause of action against the states, property owners will be left with state law remedies until such time as Congress chooses to act. Indeed, the Takings Clause of the Fifth Amendment could be deemed an inchoate constitutional provision which provides a right, but litigants will need to look elsewhere for a remedy.

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