Eminent Domain Report

Dodge, duck, dip, dive and… dodge. An interesting case from the United States Supreme Court yesterday. Interesting because of what it says, and interesting because of what it very explicitly declined to say.

The question presented in DeVillier v. Texas, 601 U.S. ___ (2024) was whether the Takings Clause of the Fifth Amendment was “self-executing”. That is, whether a landowner could sue a State for money directly under the Takings Clause, even if there is no statute specifically creating a cause of action (and where the closest statute very expressly does not provide a remedy against a State). But, spoiler alert, that’s not actually the question that was answered.

This case had a fascinating procedural posture. A number of landowners, about 120, including Richie DeVillier, a landowner in Chambers County, Texas, east of Houston and west of Beaumont, sued the State of Texas in Texas state court in 2020, seeking compensation for an alleged taking, allegedly caused by the State of Texas’ raising the grade level of Interstate 10 and installing a 3-foot-tall barrier along the median on Interstate 10. The purpose of the new barrier was to prevent stormwater from accumulating on the south side of the road—to keep Interstate 10 open and use it as a flood evacuation route. The barrier worked, and during Hurricane Harvey in 2017, the heavy rainfall produced stormwater which flooded the adjacent properties to the north of Interstate 10; this happened again with Tropical Storm Imelda in 2019. As with many of the decisions various governments made concerning Hurricane Harvey and flooding (such as the Barker and Addicks Dam flooding cases), litigation ensued. DeVillier argued that the issue was not the heavy rainfall, given there is often significant amounts of rain along the Texas coast, and that his property had no history of flooding. Other property owners filed similar suits and they all argued that the issue was the new barrier, designed to act as a dam, that caused the stormwater to back up, create a ponding issue, and flooded the land to the north of Interstate 10 instead of naturally flowing to the Gulf of Mexico. 

In response to the state court lawsuit, the State of Texas removed the case to United States District Court, based on the federal constitutional issue. The cases were consolidated into a single case with one operative complaint that included inverse condemnation claims under both the Texas Constitution and the Takings Clause of the Fifth Amendment. Once in federal court, the State of Texas moved to dismiss the federal inverse condemnation claim arguing that the Takings Clause by itself does not provide a built-in cause of action for a plaintiff to bring suit against the state.

The district court denied the motion to dismiss, concluding that the Fifth Amendment’s Takings Clause is “self-executing” and provides an automatic cause of action for a landowner to sue a State directly. The Fifth Circuit reversed, tersely noting 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.”

The outcome of the Fifth Circuit opinion led some commentators to note that the ruling created an apparent trap—one could sue a state in state court, then the state could remove the claim to federal court, and then kill the claim by arguing that the federal court has no jurisdiction. Thus, the concern went, there would be no forum to hear the federal claim. Consequently, the landowner urged, the Fifth Amendment must be self-executing to permit claims against states for violation of the Takings Clause. 

At the United States Supreme Court, the landowner maintained its position that the Fifth Amendment Takings Clause is self-executing and cited First English Evangelical Lutheran Church of Glendale v. County of Los Angeles to support that claim. But the United States Supreme Court, in a unanimous opinion by Justice Clarence Thomas, noted that First English was itself brought through a state-law inverse condemnation action. The landowner also pointed to a line of cases brought in equity seeking injunctive relief to prevent the government from interfering with property rights, including the seminal Village of Euclid v. Ambler Realty Co. case. The landowner contended that because none of those cases in equity relied on 42 U.S.C. § 1983, then it must be the case that the Fifth Amendment has always been self-executing and authorized a suit against a government entity. But the Court observed that the equitable claims were different than a cause of action for damages (a legal remedy as opposed to an equitable remedy). Thus, the Court concluded that those cases did not demonstrate that the Takings Clause authorized a suit seeking an award of just compensation. To be fair, the Court also did not say that any case barred such a suit. The Court noted that the precedents of the United States Supreme Court did not “cleanly answer the question” concerning the availability of a cause of action for damages in the form of just compensation directly under the Takings Clause.

However, the Supreme Court noted that there is an independent state-law remedy under Texas law, which provides for an inverse condemnation cause of action. So, rather than answer the question presented, the Supreme Court held that the landowners may vindicate both their substantive State and substantive Federal Constitutional rights through the vehicle of a Texas state-law inverse condemnation action. This ruling removed the pragmatic risk of a “trap” that a claimant may have no forum to litigate their claim. And it did so without definitively declaring whether the Fifth Amendment has a self-executing remedy to seek monetary damages.  

To the dismay of many practitioners and George Washington alike, the United States Supreme Court has a long tradition of not issuing so-called advisory opinions. If a question is not necessary to resolving a case in front of it, the Court generally declines to set forth its position on the law in a prospective fashion. Likewise, if a case can be resolved without ruling on constitutional grounds, that is typically the preferred outcome. Often called the constitutional avoidance doctrine (although that term was not explicitly used in this case), if a case can be resolved on other grounds—typically but not always statutory grounds—then the constitutional question is best left avoided. Here, the case could be resolved by holding that the state-law remedy was a proper vehicle to vindicate the federal constitutional rights. And with such a vehicle available, the question of whether the Fifth Amendment allows a direct suit for damages could be left for another day.

In short, where there is a state-law remedy providing the availability of just compensation as a remedy when private property is taken by the government, a landowner has an adequate vehicle to litigate against the state and vindicate their rights under both the state constitution and the Takings Clause of the United States Constitution—so it doesn’t matter whether the Fifth Amendment is or is not self-executing. 

In reaching this decision, the Court noted the State of Texas’ oral argument that the Texas state-law inverse condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Fifth Amendment. The State of Texas argued that the landowners would need to amend their complaint (to make the state-law cause of action work as a vehicle to encompass both substantive sources of Takings Law), and “assured” the Court that it would not oppose such an amendment. 

This creates an interesting thread; in both DeVillier and the recent United States Supreme Court decision of Sheetz v. County of El Dorado, the acknowledgements of the government entity at oral argument appears to have formed at least part of the basis of how the opinion played out. In Sheetz’ oral argument, the government essentially confessed error in the decision of the California Court of Appeal that had purported to recognize a categorical exemption carving out certain legislatively imposed fees or exactions from Nollan/Dolan scrutiny. Here, at oral argument, the State of Texas acknowledged that DeVillier could proceed through a state-law inverse condemnation action. Perhaps the outcome of each case would have been the same without those concessions at argument, but maybe the meat of the opinions would have differed slightly.

Relatedly, here, one wonders what will happen if in the future a State contends that its constitution does not provide a vehicle for litigating a federal takings claim. 

Thus, it appears that Takings Law is entering an era of increasing nationalization and federalization. Between Sheetz and Knick and now DeVillier, the United States Supreme Court appears to be opening more avenues for landowners to litigate claims stemming from the Takings Clause. For anyone planning on attending the IRWA National Conference in Long Beach California, Steve and our colleague Jillian Friess Leivas will be discussing these cases and the trends they may represent on June 25, 2024 at 9:30am.