No.

22-913

In The
Supreme Court of the United States
____________________

RICHARD DEVILLIER, ET AL.,

Petitioners,

v.

STATE OF TEXAS,
Respondent.
____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Fifth Circuit
____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS
____________________

KATHRYN D. VALOIS DEBORAH J. LA FETRA

Pacific Legal Foundation ROBERT H. THOMAS
4440 PGA Blvd., Suite 307 Counsel of Record
Palm Beach Gardens, FL Pacific Legal Foundation
33410 555 Capitol Mall, Suite 1290
561.691.5000 Sacramento, CA 95814
[email protected] 916.419.7111
[email protected]
[email protected]

Counsel for Amicus Curiae Pacific Legal Foundation

 i

QUESTION PRESENTED
In First English Evangelical Lutheran Church v.
County of Los Angeles, this Court recognized that the
Fifth Amendment’s Takings Clause was “self-
executing” and that “[s]tatutory recognition was not
necessary” for claims for just compensation because
they “are grounded in the Constitution itself[.]” 482
U.S. 304, 315 (1987). Since First English, several state
courts of last resort have held that the self-executing
nature of the Takings Clause requires them to
entertain claims directly under the Clause without
the need for statutory authorization. Two federal
Circuits, the Fifth and the Ninth, disagree and have
held that claims for just compensation are only
available if they are legislatively authorized. The
question presented is:
May a person whose property is taken without
compensation seek redress under the self-executing
Takings Clause even if the legislature has not
affirmatively provided them with a cause of action?
 ii

TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iii
IDENTITY AND INTEREST OF
AMICUS CURIAE ................................................... 1
INTRODUCTION AND SUMMARY
OF ARGUMENT ...................................................... 2
ARGUMENT ............................................................... 4
I. The Fifth Circuit Conflicts With This
Court’s Emphasis That the Fifth
Amendment Is “Self-Executing” ...................... 4
A. The Right to Secure Compensation for a
Taking Is a Fundamental Property Right ..... 4
B. The Fourteenth Amendment Was
Adopted to Protect Civil Rights,
Including Property Rights ............................ 10
II. This Court Should Resolve the Lower
Court Conflict on the Self-Executing
Nature of the Just Compensation Clause ..... 13
III. The Just Compensation Remedy Presents
Issues of National Importance That Can
Be Resolved Only by This Court.................... 17
CONCLUSION.......................................................... 19
 iii

TABLE OF AUTHORITIES
Cases
Alden v. Maine,
527 U.S. 706 (1999) ............................................... 6
Archbold-Garrett v. City of New Orleans,
893 F.3d 318 (5th Cir. 2018) ......................... 15–16
Ariyan Inc. v. Sewerage & Water Board
of New Orleans,
143 S.Ct. 353 (2022) .............................................. 2
Ariyan, Inc. v. Sewerage & Water Bd.
of New Orleans,
29 F.4th 226 (5th Cir. 2022) ................................ 15
Arizonans for Off. Eng. v. Arizona,
520 U.S. 43 (1997) ............................................... 13
Arkansas Game & Fish Comm’n v.
United States,
568 U.S. 23 (2012) ................................................. 1
Armstrong v. United States,
364 U.S. 40 (1960) ................................................. 8
Arrigoni Ent., LLC v. Town of Durham,
136 S.Ct. 1409 (2016) .......................................... 10
Barron v. Mayor & City Council of Baltimore,
32 U.S. (7 Pet.) 243 (1833) .................................. 11
Bay Point Props., Inc. v.
Mississippi Transp. Comm’n,
137 S.Ct. 2002 (2017) .......................................... 18
Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) ................................. 12, 14–15
 iv

Blanchette v. Connecticut General Ins. Corps.,

419 U.S. 102 (1974) ............................................... 8
Cedar Point Nursery v. Hassid,
141 S.Ct. 2063 (2021) .................................. 1–4, 17
Chicago, B. & Q. R. Co. v. City of Chicago,
166 U.S. 226 (1897) ............................................... 5
City of Milwaukee Post No. 2874 V.F.W. of U.S. v.
Redev. Auth. of City of Milwaukee,
768 N.W.2d 749 (Wis. 2009), cert. denied,
561 U.S. 1006 (2010) ........................................... 18
Crozier v. Fried. Krupp Aktiengesellschaft,
224 U.S. 290 (1912) ............................................. 10
Davis v. Burke,
179 U.S. 399 (1900) ............................................... 7
Financial Oversight and Management
Board for Puerto Rico v. Cooperative
de Ahorro y Credito Abraham Rosa,
143 S.Ct. 774 (2023) .............................................. 2
First English Evangelical Lutheran Church
of Glendale v. Los Angeles Cnty.,
482 U.S. 304 (1987) ............................... 3, 9–10, 16
Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) ............................................. 11
Folsom v. City of New Orleans,
109 U.S. 285 (1883) ............................................. 15
Heck v. Humphrey,
512 U.S. 477 (1994) ............................................... 9
Hernandez v. Mesa,
140 S.Ct. 735 (2020) ...................................... 11–12
 v

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ........................................... 1, 5
In re City of Stockton,
909 F.3d 1256 (9th Cir. 2018) ....................... 16–17
In re Financial Oversight and Mgmt. Bd.,
41 F.4th 29 (1st Cir. 2022), cert. denied,
143 S.Ct. 774 (2023) ...................................... 13–15
In re John Jay College of Crim. Justice
of City Univ. of N.Y.,
905 N.Y.S.2d 18 (App. Div. 2010),
cert. denied sub nom.,
River Ctr. LLC v. Dormitory Auth. of N.Y.,
566 U.S. 982 (2012) ............................................. 18
Jacobs v. United States,
290 U.S. 13 (1933) ................................................. 8
Kelo v. City of New London,
545 U.S. 469 (2005) ....................................... 16–17
Knick v. Twp. of Scott,
139 S.Ct. 2162 (2019) ...............1, 2, 7–9, 11, 13, 16
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) ............................................... 1
Lapides v. Board of Regents,
535 U.S. 613 (2002) ............................................. 10
Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528 (2005) ......................................... 5, 17
Louisville Joint Stock Land Bank v. Radford,
295 U.S. 555 (1935) ......................................... 8, 14
Medellin v. Texas,
552 U.S. 491 (2008) ............................................... 7
 vi

Mitchum v. Foster,
407 U.S. 225 (1972) ............................................. 11
Monell v. Dep’t of Social Services of City of N.Y.,
436 U.S. 658 (1978) ............................................. 14
Murr v. Wisconsin,
137 S.Ct. 1933 (2017) ............................................ 1
Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987) ............................................... 1
Pakdel v. City and Cnty. of San Francisco,
141 S.Ct. 2226 (2021) ............................................ 1
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ............................................... 1
Patsy v. Bd. of Regents of Fla.,
457 U.S. 496 (1982) ............................................... 9
PennEast Pipeline Co., LLC v. New Jersey,
141 S.Ct. 2244 (2021) ............................................ 4
People ex rel. Wanless v. City of Chicago,
378 Ill. 453 (1941) .................................................. 5
Phelps v. United States,
274 U.S. 341 (1927) ............................................... 2
San Remo Hotel, L.P. v. City & Cnty. of
San Francisco,
545 U.S. 323 (2005) ............................................. 13
Seaboard Air Line Ry. Co. v. United States,
261 U.S. 299 (1923) ............................................... 4
Suitum v. Tahoe Reg’l Plan. Agency,
520 U.S. 725 (1997) ............................................... 1
United States v. 50 Acres of Land,
469 U.S. 24 (1984) ............................................... 18
 vii

United States v. Clarke,

445 U.S. 253 (1980) ........................................... 2, 7
United States v. Commodities Trading Corp.,
339 U.S. 121 (1950) ............................................... 8
United States v. General Motors Corp.,
323 U.S. 373 (1945) ............................................. 17
United States v. Miller,
317 U.S. 369 (1943) ............................................... 5
United States v. Security Industrial Bank,
459 U.S. 70 (1982) ................................................. 8
Weinstein, Bronfin & Heller v. LeBlanc,
192 So.2d 130 (La. 1966) ....................................... 6
Other Authorities
Amar, Akhil Reed, The Bill of Rights:
Creation and Reconstruction (1998) ................... 11
Grant, Eric, A Revolutionary View
of the Seventh Amendment and
the Just Compensation Clause,
91 Nw. U. L. Rev. 144 (1996) ................................ 9
Jones, Dan,
Magna Carta – The Birth of Liberty (2015) .......... 4
Magna Carta art. XXVIII (1215) ................................ 4
1 Tribe, Laurence H., American
Constitutional Law (3d ed. 2000) .......................... 3
 1

IDENTITY AND INTEREST

OF AMICUS CURIAE 1
Pacific Legal Foundation (PLF) is a nonprofit, tax-
exempt corporation organized for the purpose of
litigating matters affecting the public interest in
private property rights, individual liberty, and
economic freedom. Founded 50 years ago, PLF is the
most experienced legal organization of its kind. PLF
attorneys have participated as lead counsel in
numerous landmark United States Supreme Court
cases generally in defense of the right to make
reasonable use of property and the corollary right to
obtain just compensation when that right is infringed.
See, e.g., Cedar Point Nursery v. Hassid, 141 S.Ct.
2063 (2021); Pakdel v. City and Cnty. of San
Francisco, 141 S.Ct. 2226 (2021); Knick v. Twp. of
Scott, 139 S.Ct. 2162 (2019); Murr v. Wisconsin, 137
S.Ct. 1933 (2017); Koontz v. St. Johns River Water
Mgmt. Dist., 570 U.S. 595 (2013); Palazzolo v. Rhode
Island, 533 U.S. 606 (2001); Suitum v. Tahoe Reg’l
Plan. Agency, 520 U.S. 725 (1997); Nollan v.
California Coastal Comm’n, 483 U.S. 825 (1987). PLF
also routinely participates in important property
rights cases as amicus curiae. See, e.g., Horne v. Dep’t
of Agric., 576 U.S. 350 (2015); Arkansas Game & Fish
Comm’n v. United States, 568 U.S. 23 (2012).
Additionally, PLF attorneys have extensive
experience with the question here, having advocated

1Pursuant to Rule 37.2, PLF provided timely notice to all parties.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for
any party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
Amicus Curiae, its members, or its counsel made a monetary
contribution to its preparation or submission.
 2

for the Takings Clause’s self-executing nature several

times. See, e.g., Ariyan Inc. v. Sewerage & Water
Board of New Orleans, 143 S.Ct. 353 (2022); Financial
Oversight and Management Board for Puerto Rico v.
Cooperative de Ahorro y Credito Abraham Rosa, 143
S.Ct. 774 (2023).
INTRODUCTION AND
SUMMARY OF ARGUMENT
When government takes, it must compensate. This
is the plain meaning of the Fifth Amendment’s
fundamental limitation on sovereign power, as this
Court has repeatedly, and recently, emphasized. See
Cedar Point, 141 S.Ct. at 2077 (Government’s
obligation to compensate owners when it takes
property is not an “empty formality, subject to
modification at the government’s pleasure.”); Phelps v.
United States, 274 U.S. 341, 343 (1927) (“Under the
Fifth Amendment plaintiffs were entitled to just
compensation ... the claim is one founded on the
Constitution.”). This petition asks what it means
when this Court describes the Fifth Amendment’s
Just Compensation Clause as “self-executing.” See,
e.g., Knick, 139 S.Ct. at 2171 (“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.”) (cleaned up, citation omitted); United
States v. Clarke, 445 U.S. 253, 257 (1980) (“A
landowner is entitled to bring such an [inverse
condemnation] action as a result of the self-executing
character of the constitutional provision with respect
to compensation”) (cleaned up, citation omitted). At
the very least, it means that the Constitution itself
recognizes the right, and most importantly
 3

establishes the remedy when the government fails to

live up to its constitutional obligations. See Cedar
Point, 141 S.Ct. at 2077 (Government’s obligation to
compensate owners when it takes property is not an
“empty formality, subject to modification at the
government’s pleasure.”).
Consequently, because neither Congress nor a
state legislature need agree to pay compensation, they
do not need to adopt an implementing statute—and no
waiver of sovereign immunity is necessary—for a
plaintiff to invoke the judiciary’s authority to enforce
the Constitution and impose a remedy. That is, if
Congress repealed Section 1983 tomorrow, the
constitutional mandate for just compensation
remains. Or as this Court has put it, the Just
Compensation Clause “of its own force” “furnish[es] a
basis for a court to award money damages against the
government[.]” First English Evangelical Lutheran
Church of Glendale v. Los Angeles Cnty., 482 U.S. 304,
316 n.9 (1987) (quotation omitted). See 1 Laurence H.
Tribe, American Constitutional Law § 6-38, at 1272
(3d ed. 2000) (observing, based on First English, that
the Takings Clause “trumps state (as well as federal)
sovereign immunity”). The Constitution’s plain text,
which acknowledges the fundamental right to just
compensation when one’s property is pressed into
public service, would be deprived of its power and
meaning should the executive and the legislature
need first to agree to be bound by this essential
limitation on all free governments.
This Court should resolve the confusion among
lower courts by granting certiorari and holding that
the Just Compensation Clause is self-executing and
states may not immunize themselves from the
 4

constitutional mandate to pay just compensation. See

Seaboard Air Line Ry. Co. v. United States, 261 U.S.
299, 304 (1923) (“Just compensation is provided for by
the Constitution and the right to it cannot be taken
away by statute.”); PennEast Pipeline Co., LLC v. New
Jersey, 141 S.Ct. 2244, 2258−59 (2021) (Eleventh
Amendment does not bar eminent domain suits by
private delegatees of the federal government against
nonconsenting states). The petition should be granted.
ARGUMENT
I. The Fifth Circuit Conflicts With This Court’s
Emphasis That the Fifth Amendment Is
“Self-Executing”
A. The Right to Secure Compensation
for a Taking Is a Fundamental
Property Right
This Court has long recognized that property
rights are “necessary to preserve freedom[.]” Cedar
Point, 141 S.Ct. at 2071. The core nature of the right
to be actually compensated is reflected in its lineage—
as long as any in Anglo-American law. Over eight
centuries ago, suffering under the practice of
purveyance—where the Crown “took goods, crops,
horses, and carts for the king’s use without (or
intending to pay) for them” 2—the barons forced King
John to promise to provide compensation. See Magna
Carta art. XXVIII (1215), quoted in Jones, supra, at
209. This was not an unenforceable promise, but one
with a potent enforcement mechanism: if John failed
to live up to these promises, the barons could abandon
their feudal obligations and revolt. History tells us
that they did just that, after John almost immediately

2 Dan Jones, Magna Carta – The Birth of Liberty 138 (2015).

 5

repudiated his promises. See Horne v. Dep’t of Agric.,

576 U.S. 350, 358–59 (2015) (the “categorical” duty to
pay just compensation “goes back at least 800 years to
Magna Carta” and the Takings Clause was included
in the Bill of Rights in part because of Revolutionary
War property seizures).
Just compensation lies at the heart of property
rights, and this Court has emphasized its central role.
See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S.
226, 241 (1897) (just compensation was the first right
in the Bill of Rights “incorporated” against states
under the Fourteenth Amendment); Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528, 536–37 (2005) (“As its text
makes plain, the Takings Clause … ‘is designed not to
limit governmental interference with property rights
per se, but rather to secure compensation in the event
of otherwise proper interference amounting to a
taking.’”) (citation omitted). The sole measure of
justice for most takings is compensation. People ex rel.
Wanless v. City of Chicago, 378 Ill. 453, 459 (1941) (“It
must be remembered that a landowner whose
property is taken or damaged for public use through
the exercise of the power of eminent domain is an
involuntary creditor who has no right to prevent the
city from taking or damaging his property.”).
Compensation is meant to indemnify—the “full
and perfect equivalent” for property taken. United
States v. Miller, 317 U.S. 369, 373 (1943) (“The owner
is to be put in as good position pecuniarily as he would
have occupied if his property had not been taken.”)
(citation omitted). But the “justness” of compensation
is not only the value of the property taken, but
includes how and when it is paid. The right to obtain
compensation when the government fails to proffer it
 6

reflects the normative (and intuitive) expectation that

if property must be appropriated and surrendered to
a public use, the owner has the right to pursue judicial
relief to be made whole.
The syntax of Magna Carta’s “takings clause” (“no
constable shall take [property] … without immediate
payment”) is familiar, because the Fifth Amendment
is phrased similarly (“nor shall private property be
taken … without just compensation”). These plain
terms obligate government to provide just
compensation when it takes property for public use,
and uncompensated takings are beyond the powers of
free governments. Unique among the Bill of Rights,
the Just Compensation Clause acknowledges in the
constitutional text the limitations on government
power—and most importantly sets forth the remedy if
government should fail to abide by these limitations.
Whether this provision is viewed as recognizing that
a taking without compensation is beyond the
legitimate power of government, or as a constitutional
waiver of sovereign immunity, 3 the result is the same:
when government takes property, it is obligated to
provide just compensation. If it does not, property
owners are entitled to seek compensation themselves
without additional government permission.

3 “Sovereign immunity,” government’s common-law immunity

from civil lawsuits, describes a “fundamental aspect of the
sovereignty which the States enjoyed before the ratification of
the Constitution.” Alden v. Maine, 527 U.S. 706, 713 (1999). For
this reason, government may not be sued without its consent.
Weinstein, Bronfin & Heller v. LeBlanc, 192 So.2d 130, 132 (La.
1966) (The “basic premise of this proposition that the State does
enjoy immunity from suit and may not be sued without its
consent .… derives from and is inherent in the most elementary
concepts of governmental sovereignty[.]”).
 7

Thus, this Court has consistently described the

Just Compensation Clause as “self-executing,”
meaning that no additional acquiescence or
authorization is necessary to enforce the
compensation requirement. This means that no
further action by the government is a necessary
predicate to enforcing the right, nor is a waiver of
sovereign immunity, nor an enabling statute. Thus,
an owner whose property has been taken is entitled to
seek compensation without invoking any particular
statute or state court procedures. See, e.g., Knick, 139
S.Ct. at 2171; Clarke, 445 U.S. at 257.
The term “self-executing” implies an enforceable
right. Davis v. Burke, 179 U.S. 399, 403 (1900) (“‘A
constitutional provision may be said to be self-
executing if it supplies a sufficient rule by means of
which the right given may be enjoyed and protected,
or the duty imposed may be enforced; and it is not self-
executing when it merely indicates principles, without
laying down rules by means of which those principles
may be given the force of law.’”) (citation omitted); cf.
Medellin v. Texas, 552 U.S. 491, 505 (2008) (treaty
stipulations that are not self-executing are enforce–
able only pursuant to implementing legislation). Here,
the Fifth Amendment explicitly commands payment
of just compensation when government takes property
for public use. This is a “sufficient rule” as evidenced
by courts’ ability to apply it since the earliest days of
the United States.
Indeed, the compensation mandate cannot be
limited or diminished, even by other constitutional
powers. See, e.g., Louisville Joint Stock Land Bank v.
Radford, 295 U.S. 555, 589 (1935) (the bankruptcy
power cannot limit the obligation to provide just
 8

compensation); see also United States v. Security

Industrial Bank, 459 U.S. 70, 75 (1982) (reaffirming
the holding in Radford and explaining, “[t]he
bankruptcy power is subject to the Fifth Amendment’s
prohibition against taking private property without
compensation”); Blanchette v. Connecticut General
Ins. Corps., 419 U.S. 102, 155 (1974) (ability of takings
claimants to pursue any compensation shortfall in the
Court of Claims ensured that their constitutional
rights were protected).
There is a “constitutional obligation to pay just
compensation.” Armstrong v. United States, 364 U.S.
40, 49 (1960) (emphasis added); see also Jacobs v.
United States, 290 U.S. 13, 16 (1933) (“[A] promise [to
pay] was implied because of the duty to pay imposed
by the [Fifth] Amendment.”). Critically, unlike other
civil actions, claims for just compensation do not
determine culpability—the owner possessed property
taken for a public use and a court’s main task is to
establish the amount representing the full and perfect
equivalent for the property taken. See United States v.
Commodities Trading Corp., 339 U.S. 121, 124 (1950)
(“The word ‘just’ in the Fifth Amendment evokes ideas
of ‘fairness’ and ‘equity’....”). Knick held that property
owners seeking just compensation for a taking need
not pursue state administrative remedies prior to
filing suit in federal court. 139 S.Ct. at 2170–75. The
challenged exhaustion requirement was wrongly
imposed because the property owner’s right to
compensation “arises at the time of the taking,” id. at
2170, and there is no reason why constitutionally-
protected property rights should be uniquely excepted
from the general rule that plaintiffs alleging
violations of their constitutional rights may proceed
directly to federal court without exhausting state
 9

procedures. Id. at 2167 (citing Heck v. Humphrey, 512

U.S. 477, 480 (1994) (quoting Patsy v. Bd. of Regents
of Fla., 457 U.S. 496, 501 (1982))). Nothing in Knick
justifies immunizing state governments; the Court
simply emphasized the government’s obligation to pay
just compensation for property it has already taken.
See Knick, 139 S.Ct. at 2172 (citing First English as
holding that a “property owner acquires an
irrevocable right to just compensation immediately
upon a taking”).
In short, as one commentator explained,
It is a proposition too plain to be contested that
the Just Compensation Clause of the Fifth
Amendment is “repugnant” to sovereign
immunity and therefore abrogates the
doctrine …. A taking without payment of just
compensation is a constitutional oxymoron.
Faced with proof that the government has
effectuated such a condition, a court must do one
of two things if it is to enforce the supreme law
of the land. Either it must oust the government
and restore the property owner to possession of
his or her property, or it must confirm the taking
and exact just compensation from the
government. Between these alternatives, both of
which abrogate sovereign immunity, there is no
middle ground.
Eric Grant, A Revolutionary View of the Seventh
Amendment and the Just Compensation Clause, 91
Nw. U. L. Rev. 144, 199–200 (1996).
Any impulse to wait for the executive and
legislature to first agree to a judicial remedy must give
way to the self-executing Just Compensation Clause,
 10

which necessarily implicates civil rights. First

English, 482 U.S. at 316 n.9. (“[I]t is the Constitution
that dictates the remedy for interference with
property rights amounting to a taking.”). Here, the
takings claimants filed suit in state court. The State
of Texas removed the case to federal court then
convinced the Circuit Court that by doing so, it
immunized itself from paying just compensation. This
Court should not countenance such self-dealing
governmental machinations at the expense of
property owners seeking vindication of constitutional
rights. See Arrigoni Ent., LLC v. Town of Durham, 136
S.Ct. 1409 (2016) (Thomas and Kennedy, JJ.,
dissenting from denial of certiorari) (procedural bar
from federal court “inspired gamesmanship”); Lapides
v. Board of Regents, 535 U.S. 613, 621 (2002) (decrying
state’s manipulation of legal doctrine “to achieve
unfair tactical advantages”).
The structure and plain language of the Fifth
Amendment as incorporated through the Fourteenth
Amendment cannot justify such immunity. The Just
Compensation Clause does not dictate how or when
compensation is provided. See Crozier v. Fried. Krupp
Aktiengesellschaft, 224 U.S. 290, 306 (1912). But it
requires some kind of enforceable remedy, even when
the government has not consented to be sued.
B. The Fourteenth Amendment Was
Adopted to Protect Civil Rights,
Including Property Rights
When, as here, a state is involved, the Fourteenth
Amendment’s empowerment of federal courts to
ensure that states do not violate individual rights is
also implicated. Mitchum v. Foster, 407 U.S. 225, 238–
39 (1972) (recognizing the role of the Amendment in
 11

elevating “the Federal Government as a guarantor of

basic federal rights against state power”); Akhil Reed
Amar, The Bill of Rights: Creation and Reconstruction
268 (1998) (the Amendment was adopted in part to
protect “citizens of the United States, whose property,
by State legislation, has been wrested from them”).
Before the foundational shift in constitutional
thinking in the aftermath of the Civil War, the Fifth
Amendment’s condition on government’s exercise of
eminent domain power limited only the federal
government. See Barron v. Mayor & City Council of
Baltimore, 32 U.S. (7 Pet.) 243, 250–51 (1833). 4
It was not until the Fourteenth Amendment (and
the civil rights statutes adopted to give it teeth),
however, that federal courts protected property and
other constitutional rights against predation from
state and local governments. When Congress enforces
a Fourteenth Amendment right without violating
state immunity, it is because the Amendment itself
overrides any state action that purports to render a
right immune from judicial enforcement. See
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (“[T]he
Eleventh Amendment, and the principle of state
sovereignty which it embodies, are necessarily limited
by the enforcement provisions of § 5 of the Fourteenth
Amendment.”) (citation omitted).
The Fifth Circuit’s decision relies on a partial
quote from Hernandez v. Mesa, 140 S.Ct. 735, 742
(2020): “[A] federal court’s authority to recognize a
damages remedy must rest at bottom on a statute
enacted by Congress[.]” The full quote in Hernandez,

4 State constitutions and state tort law contained analogous

protection against uncompensated takings. See Knick, 139 S.Ct.
at 2175–76.
 12

which rejected an expansion of Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971), to permit recovery of tort damages, 5
states, “[w]ith the demise of federal general common
law, a federal court’s authority to recognize a damages
remedy must rest at bottom on a statute enacted by
Congress, and no statute expressly creates a Bivens
remedy.” 140 S.Ct. at 742 (citation omitted). The heart
of Hernandez is the Court’s grappling with whether it
could or should create a new cause of action in the
absence of a federal statute. The Court declined to do
so. The issue presented here is different: whether the
Fifth Amendment’s Takings Clause itself establishes
an independent cause of action. Texas convinced the
Fifth Circuit that it does not—that property owners’
sole avenue to federal court is via the Civil Rights Act.
Section 1983 operates to provide a private cause of
action to enforce rights guaranteed by the Fourteenth
Amendment. It provides a remedy against “[e]very
person” who, under color of state law, deprives a
citizen of the United States of “any rights, privileges,
or immunities secured by the Constitution and laws.”
Section 1983 is not an independent source of
constitutional or statutory rights; it authorizes
plaintiffs to sue for violations of the Constitution and

5In Bivens, the Court held that a person claiming to be the victim
of an unlawful arrest and search could bring a Fourth
Amendment claim for damages against the responsible agents
even though no federal statute authorized such a claim. 403 U.S.
at 397. The Hernandez case involved a cross-border shooting
where a U.S. Border Patrol agent shot and killed a Mexican teen
who had crossed back into Mexico when he was shot. After an
investigation absolved the agent, the teen’s parents sued in
federal district court, alleging that the agent violated the teen’s
Fourth and Fifth Amendment rights. 140 S.Ct. at 740–41.
 13

other federal statutes. However, as the court below

noted, plaintiffs cannot sue states directly for
constitutional violations under Section 1983, and the
states themselves are not “persons” as that term is
used in the statute. Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 69 (1997). If takings claimants are
required to proceed solely under Section 1983 against
a state, the lawsuit “dies aborning.” See Knick, 139
S.Ct. at 2167–68 (rejecting the same “Catch-22”
caused by the San Remo preclusion trap). 6 This Court
should grant the petition to ensure that property
owners have a means for constitutional redress
against any government actor—local, state, or
federal—that takes private property for public use
without just compensation.
II. This Court Should Resolve the Lower Court
Conflict on the Self-Executing Nature of the
Just Compensation Clause
The lower courts do not agree on the import of this
Court’s “self-executing” description. The First Circuit
requires just compensation as mandated by the self-
executing nature of the Takings Clause while the
Fifth and Ninth Circuits allow governments to avoid
such payments. The First Circuit correctly concludes
that it means that just compensation cannot be
limited or diminished, even by other constitutional
powers, or by statute. For example, in In re Financial
Oversight and Mgmt. Bd., 41 F.4th 29, 46 (1st Cir.
2022), cert. denied, 143 S.Ct. 774 (2023), the First
Circuit rejected the argument that Puerto Rico’s
obligation to provide just compensation for property it
had taken (both by eminent domain and by inverse

6San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S.
323, 335 (2005).
 14

condemnation) could be reduced or discharged in

bankruptcy. 7
The First Circuit correctly relied on the unique
qualities of just compensation—the only monetary
remedy specifically commanded in the text of the
Constitution. Id. at 44 (“just compensation is different
in kind from other monetary remedies”). The
command for just compensation is a “structural
limitation” on government’s authority to take private
property, and it is a limitation that should encourage
government officials to exercise the taking power with
caution. Id. Because the Constitution itself demands
payment of just compensation to remedy a taking, the
First Circuit recognized that a judicial award of just
compensation is different in kind than typical breach
of contract or common law or constitutional tort-based
damage awards. Id. at 43, 45 (Just compensation is
not a “mere monetary obligation that may be
dispensed with by statute.”). The court declined to
conflate constitutional tort recovery via 42 U.S.C.
§ 1983 8 with constitutionally mandated just
compensation for takings. It explained,
a claim under the Takings Clause is different in
kind from actions under Bivens and section
1983. Neither Bivens nor section 1983 rest on a
provision of the Constitution that mandates a
specific remedy in the same way the Takings
Clause mandates just compensation; nor do

7 The First Circuit rested its analysis squarely on this Court’s

“very clear” cases declaring that bankruptcy laws are
subordinate to the Takings Clause. Financial Oversight, 41 F.4th
at 42 (citing Sec. Indus. Bank and Radford).
8 See Monell v. Dep’t of Social Services of City of N.Y., 436 U.S.

658, 691 (1978).

 15

Bivens or section 1983 prescribe the quantum

of compensation required in the event of a
violation.
Financial Oversight, 41 F.4th at 46 (footnote omitted).
By contrast, the Fifth Circuit bars property owners
from obtaining just compensation by immunizing
governments’ refusal to pay just compensation
judgments. In addition to this case, in Ariyan, Inc. v.
Sewerage & Water Bd. of New Orleans, 29 F.4th 226
(5th Cir. 2022), the Fifth Circuit considered whether
New Orleans’ residents whose homes and businesses
were damaged and destroyed by a public
infrastructure project could demand payment on the
state court judgments awarding them compensation.
Id. at 228. The Fifth Circuit denied them relief,
dismissing as dicta this Court’s description of the Just
Compensation Clause as “self-executing.” Id. at 231.
The court held the Sewerage Board must consent to
enforcement of just compensation judgments and
property owners are left to “rely exclusively upon the
generosity” of the government to satisfy the
judgments, because Louisiana law alone controls the
right to timely compensation, and does not create a
right to receive it at any particular time (even years
after the takings). Id. at 230 (quoting Folsom v. City
of New Orleans, 109 U.S. 285, 295 (1883) (Harlan, J.,
dissenting)).
The Constitution’s command to provide just
compensation is a hollow one if all it demands is that,
in return for surrendering property to the public, the
owner nonetheless must rely on the legislative or
executive branches to agree to provide compensation.
See Archbold-Garrett v. City of New Orleans, 893 F.3d
318, 322 n.1 (5th Cir. 2018) (city allocates funds to pay
 16

just compensation only “as they see fit”). But

describing the Just Compensation Clause as self-
executing is not “hortatory fluff.” 9 It means that states
cannot refuse to pay just compensation judgments,
and federal courts need not defer to state assertions of
sovereign immunity. Whether viewing the Just
Compensation Clause as an affirmative waiver of
common-law immunity, or simply a textual
affirmation that the sovereign power of eminent
domain does not include the power to avoid paying
just compensation, this Court has emphasized, “[t]he
government’s post-taking actions … cannot nullify the
property owner’s existing Fifth Amendment right[,]”
and where it has taken property, “no subsequent
action by the government can relieve it of the duty to
provide compensation.” Knick, 139 S.Ct. at 2171
(quoting First English, 482 U.S. at 321). The Ninth
Circuit has suggested the same. In In re City of
Stockton, 909 F.3d 1256 (9th Cir. 2018), a property
owner with a stale inverse condemnation claim sought
to recover his just compensation via Stockton’s
bankruptcy proceedings. Id. at 1262. The court, split
2-1, said that his claim, which would have required
the court to invalidate the city’s proposed plan of
adjustment, was subject to “equitable mootness,” id.
at 1266, and barred on the basis that he “offer[ed] too
little, too late.” Id. The majority of the panel concluded
that the city’s obligation to provide compensation for

9 See Kelo v. City of New London, 545 U.S. 469, 497 (2005)
(O’Connor, J., dissenting) (“[W]ere the political branches the sole
arbiters of the public-private distinction, the Public Use Clause
would amount to little more than hortatory fluff. An external,
judicial check on how the public use requirement is interpreted,
however limited, is necessary if this constraint on government
power is to retain any meaning.”).
 17

an inverse condemnation claim was ordinary debt,

dischargeable in Stockton’s municipal bankruptcy).
Id. at 1268–69. Judge Friedland dissented, however,
concluding that based on “constitutional first
principles,” id. at 1271, and this Court’s decisions, the
Ninth Circuit should have concluded that “Congress’s
bankruptcy powers do not allow it to infringe upon
rights guaranteed by the Takings Clause. Where a
taking has occurred, just compensation is owed and
cannot be reduced—bankruptcy notwithstanding .…
[C]laims for just compensation should be excepted
from discharge, such that they survive any
bankruptcy intact.” Id. at 1273 (Friedland, J.,
dissenting).
Only resolution by this Court can harmonize the
divergent approaches of the lower courts on the
meaning and implementation of the Constitution’s
self-executing command for just compensation after a
taking.
III. The Just Compensation Remedy Presents
Issues of National Importance That Can Be
Resolved Only by This Court
The “critical terms [in the Takings Clause] are
‘property,’ ‘taken’ and ‘just compensation.’” United
States v. General Motors Corp., 323 U.S. 373, 377
(1945). Recently, this Court has addressed all but one.
The Court determined when a valuable interest
qualifies as “private property.” See, e.g., Cedar Point,
141 S.Ct. at 2075–76 (right to exclude a fundamental
attribute of property). It determined when a
regulation restricts use of property and effects a
“taking,” Lingle, 544 U.S. at 536 (clarifying regulatory
takings), and when a taking is “for a public use.” Kelo,
545 U.S. at 489–90.
 18

But lower courts require guidance regarding the

subject of the overwhelming majority of takings
cases—just compensation. Since this Court’s last just
compensation case, nearly four decades ago, see
United States v. 50 Acres of Land, 469 U.S. 24, 26–29
(1984), lower courts have strayed from the Just
Compensation Clause’s foundational principles. See,
e.g., City of Milwaukee Post No. 2874 V.F.W. of U.S. v.
Redev. Auth. of City of Milwaukee, 768 N.W.2d 749
(Wis. 2009) (undivided fee rule avoids compensation
for long-term leasehold interest), cert. denied, 561
U.S. 1006 (2010); In re John Jay College of Crim.
Justice of City Univ. of N.Y., 905 N.Y.S.2d 18 (App.
Div. 2010) (excluding evidence of deliberate
government actions to depress the value of the taken
property), cert. denied sub nom., River Ctr. LLC v.
Dormitory Auth. of N.Y., 566 U.S. 982 (2012).
The Just Compensation Clause again cries out for
this Court’s attention, as two Justices recently
commented. See Bay Point Props., Inc. v. Mississippi
Transp. Comm’n, 137 S.Ct. 2002 (2017) (“But
[Mississippi’s] decision seems difficult to square with
the teachings of this Court’s cases holding that
legislatures generally cannot limit the compensation
due under the Takings Clause of the Constitution .…
Given all this, these are questions the Court ought
take up at its next opportunity.”) (statement of
Gorsuch and Thomas, JJ.). Only this Court can
confirm the essential nature of the compensation
remedy for takings.
 19

CONCLUSION
The Court should grant the petition.
DATED: May 2023.
Respectfully submitted,

DEBORAH J. LA FETRA
ROBERT H. THOMAS
Counsel of Record
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, CA 95814
916.419.7111
[email protected]
[email protected]

KATHRYN D. VALOIS
Pacific Legal Foundation
4440 PGA Blvd., Suite 307
Palm Beach Gardens, FL
33410
561.691.5000
[email protected]

Counsel for Amicus Curiae Pacific Legal Foundation

 No. 22-913

In the
Supreme Court of the United States

RICHARD DEVILLIER, ET AL.,

Petitioners,
v.
STATE OF TEXAS,
Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals
for the Fifth Circuit

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify that the BRIEF AMICUS
CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITIONERS
contains 4,786 words, excluding the parts of the document that are exempted by
Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 10, 2023.

__________________________________
ROBERT H. THOMAS
Counsel of Record
Pacific Legal Foundation
555 Capitol Mall, Suite 1290
Sacramento, California 95814
Telephone: (916) 419-7111
[email protected]
Counsel for Amicus Curiae
Pacific Legal Foundation
 2311 Douglas Street E-Mail Address:
Omaha, Nebraska 68102-1214 [email protected]

1-800-225-6964 Web Site

(402) 342-2831 www.cocklelegalbriefs.com
Fax: (402) 342-4850
No. 22-913

RICHARD DEVILLIER, ET AL.,

Petitioners,
v.
STATE OF TEXAS,
Respondent.

AFFIDAVIT OF SERVICE

I, Andrew Cockle, of lawful age, being duly sworn, upon my oath state that I did, on the 10th day of May, 2023, send out
from Omaha, NE 2 package(s) containing 3 copies of the BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION
IN SUPPORT OF PETITIONERS in the above entitled case. All parties required to be served have been served by Priority
Mail. Packages were plainly addressed to the following:

SEE ATTACHED

To be filed for:
KATHRYN D. VALOIS DEBORAH J. LA FETRA
Pacific Legal Foundation ROBERT H. THOMAS
4440 PGA Blvd., Suite 307 Counsel of Record
Palm Beach Gardens, FL 33410 Pacific Legal Foundation
561.691.5000 555 Capitol Mall, Suite 1290
[email protected] Sacramento, CA 95814
916.419.7111
[email protected]
[email protected]

Counsel for Amicus Curiae

Pacific Legal Foundation

Subscribed and sworn to before me this 10th day of May, 2023.

I am duly authorized under the laws of the State of Nebraska to administer oaths.

Notary Public Affiant

43605
 Service List
Richard Devillier, et al. v. State of Texas
U.S. Supreme Court Case No. 22-913

Robert J. McNamara
Institute for Justice
901 N Glebe Road
Suite 900
Arlington, VA 22203
703-682-9320
[email protected]
Counsel for Richard Devillier, et al.

Judd E. Stone II
Texas Attorney General's Office
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
512-936-1700
[email protected]
Counsel for State of Texas
From: Katherine Turnbill
To: [email protected]; [email protected]
Cc: Robert Thomas; Deborah J. La Fetra; Kady Valois; Incoming Lit
Subject: Devillier v. State of Texas; USSC No. 22-913
Date: Wednesday, May 10, 2023 1:42:13 PM
Attachments: Affidavit of Service.pdf
image001.png
Cert of Compliance.pdf
Devillier AC Brief FINAL.pdf

Good Afternoon Counsel,

Attached please find the Brief Amicus Curiae of Pacific Legal Foundation in Support of
Petitioners which was filed this afternoon.
Regards,

Katherine Turnbill | Legal Secretary

Pacific Legal Foundation
916.419.7111 | Office
In office: 8 am to 4:30 pm (EST)
From: [email protected]
To: Incoming Lit
Subject: Supreme Court Electronic Filing System
Date: Wednesday, May 10, 2023 1:52:49 PM

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