Déjà Vu all over again

If you stay in the legal game long enough, things tend to come around again. I am having that déjà vu feeling now. In the first case I argued in the United States Supreme Court (36 years ago) the issue arose of whether a Fifth Amendment takings claim could be raised directly under the Constitution or whether some statutory enabling act was a necessary precursor to litigation.

The case was First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). It involved the potential liability of Los Angeles County for failed flood control works that caused massive damage. Although the issue was not raised as a defense by the County, the United States Solicitor General, as amicus curiae, asserted on his own that suits against local government entities could only be brought under 42 U.S.C. § 1983, which specifically authorized such litigation. The Solicitor General urged the Court to hold that "'the Constitution does not, of its own force, furnish a basis to award money damages against the government." (Amicus Curiae Brief for United States, p. 14.)

The Supreme Court slapped down the argument. In plain language, the Court admonished that "a landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation" and that this right does not depend on "[s]tatutory recognition" for its existence. First English, 482 U.S. at 315 (emphasis added). Indeed, the "right to compensation for property taken by the government was founded upon the Constitution of the United States." Ibid. The Supreme Court could hardly have been more clear. The express words of the Constitution not only established the right, but also declared the precise remedy for its violation: compensation. Cash may not heal all wounds, but it is a substitute that is both constitutionally mandated and acceptable. See Knick v. Township of Scott, 139 S.Ct. 2172 (2019).

The Fifth Amendment's just compensation guarantee is unlike the other parts of the Bill of Rights in that it does not prohibit government action, but rather establishes a right and then provides a remedy for a certain kind of action. "[I]t is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." Id. at 314-15. That is why no further legislative authorization was needed.

This conclusion, of course, was in line with earlier Supreme Court precedent. Although not cited in the briefs, I brought a copy of Jacobs v. United States (1933) 290 U.S. 13 to the oral argument (having an apparent premonition that it would be important). At the appropriate time, I pulled it out and quoted a passage to the Court. Immediately, the Chief Justice motioned to a page and whispered something to him. Disappearing behind the Court's curtained backdrop, the page reappeared with a volume of Supreme Court opinions. After glancing at the book, the Chief Justice looked at counsel for the county and said something akin to "so, what about that, counsel?" There was, of course, no answer.

For the most part, lower courts complied with this guidance. See, e.g., DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004); Manning v. Mining & Minerals Div. of the Energy, Mins. and Nat. Res. Dep't, 144 P.3d 87, 97 (N.M. 2006); Henderson v. City of Columbu,. 827 N.W.2d 486, 493 (Neb. 2013).

Fast forward 36 years. How soon they forget. Cf. Exodus 1:8. In Devillier v. State of Texas, 53 F.4th 904 (5th Cir. 2022), the Fifth Circuit Court of Appeals strayed from that well-worn path. To be fair, one court had left the fold during that time period: the Ninth Circuit Court of Appeals. Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992). But you probably already figured that the Ninth Circuit would be an outlier.

So, if you are going to reach a decision contrary to the United States Supreme Court that is directly on the issue presented, how do you do it? Easy. Here's what the Fifth Circuit did: it simply ignored the Supreme Court. The Fifth Circuit filed a one paragraph per curiam opinion that said blandly, "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 ...." 53 F.4th at 904.

To be fair, the Fifth Circuit cites a Supreme Court case in a footnote in supposed support: Hernandez v. Mesa, 140 S.Ct. 735 (2020). But Hernandez was a Bivens case, involving implied causes of action against federal agents, and the Court simply said that it was reluctant to expand the scope of the judicially created Bivens action. That has nothing to do with the self-executing Fifth Amendment.

The petition for certiorari is pending. Having initially declined to respond, Texas has been ordered to do so. This is an important issue. The Supreme Court should save everyone the time and effort and summarily reverse.