Thanks to a recent court ruling, you may no longer be able to sue the state for stealing your property if you live in Louisiana. A federal appeals court with jurisdiction over Louisiana, Texas, and Mississippi effectively ruled that people can’t bring federal takings claims when the state takes their property. So they have to sue under state law instead. But state law is sometimes no remedy at all: Louisiana state law allows governments to avoid paying compensation for years and years when they take someone’s property.
Most provisions of the Bill of Rights tell the government not to violate a right, but say nothing about “compensation” if it does violate such a right. The Takings Clause of the Fifth Amendment is different. It specifically provides a right to “just compensation.”
But a federal appeals court has ruled that when a state — as opposed to a local government — seizes your property, you can’t sue it for compensation in federal court, because the federal statute creating a right to compensation for constitutional violations, 42 U.S.C. 1983, doesn’t authorize suits for compensation from states, as opposed to local governments or government officials. It overlooked the fact that the Takings Clause, unlike most constitutional provisions, itself creates a specific right to “just compensation,” which is why the Supreme Court has heard federal lawsuits challenging takings by state or local governments in the past, even before 42 U.S.C. 1983 was enacted. So people should be able to sue the state directly under the Takings Clause for compensation, even if they can’t sue under 42 U.S.C. 1983.
But a federal appeals court recently ruled to the contrary, in a brief, poorly explained ruling. That ruling by the Fifth Circuit Court of Appeals is alarming, and it is disturbing that every Democratic judge on the court, as well as some of the Republican judges, apparently supports this disturbing ruling, because they refused to rehear the case when people pointed out that it is legally erroneous and guts property rights in Louisiana.
In Devillier v. Texas, decided in November, a three-judge panel of the Fifth Circuit 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. Here is the entirety of the opinion (minus footnotes):
The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the [S]tates through the Fourteenth Amendment does not provide a right of action for takings claims against a [S]tate, we VACATE the district court’s decision and REMAND for further proceedings. The Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking; nothing in this description of Texas law is intended to replace its role as the sole determinant of Texas state law. As such, this Court lacks jurisdiction to review these claims.
As law professor Ilya Somin notes,
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. In the footnotes, the panel cites Azul–Pacifico, Inc. v. City of Los Angeles,a 1992 Ninth Circuit reaching a similar conclusion. But Azul-Pacifico, a very short opinion that offers almost no analysis supporting its position, was decided prior to [the Supreme Court’s decision in] Knick [v. Township of Scott (2019)], at a time when Williamson County was still in force and it was therefore permissible for courts to disfavor takings claims relative to other constitutional rights claims. Knick decisively rejected such theories, and the Fifth Circuit erred egregiously in failing even to cite Knick in its opinion.
Even worse, the Fifth Circuit ruling creates precisely the kind of Catch-22 that [the Supreme Court’s] Knick [decision] 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! As Judge Andrew Oldham puts it in his dissent from the Fifth Circuit’s March 23 denial of the plaintiffs’ petition for an en banc rehearing (which, if granted, would have had the entire Fifth Circuit reconsider the panel decision), “[t]he panel decision renders federal takings claims non-cognizable in state or federal court.”…The federal district court ruling that the Fifth Circuit reversed effectively highlighted this dangerous implication of ruling in favor of the state, and specifically cited Knick, as well:
In considering the State’s argument, it is important to think for a moment about the dramatic implications of such a rule. Under the State’s view, it can take property from a private citizen without paying just compensation and the private citizen would be left without a remedy. Take an example. Person A owns a 20-acre vacant parcel. While Person A is on a five-year trip around the world, the State commandeers the property, constructs a state office building on the property, and utilizes the building on the property—all without the permission of the property owner. When Person A returns home, the State tears down the building and returns the property to its original vacant state. This is a classic taking for which Person A is clearly entitled to be compensated. See Knick v. Township of Scott, 139 S.Ct. 2162, 2167 (2019) (“A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.”)…. But not so fast. Amazingly, the State maintains that Person A would have no federal constitutional remedy against the State because a Fifth Amendment takings claim can never be brought against a State under [42 USC] § 1983. This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic.
There is not, as the State suggests, some sort of “state exception” that excludes state governments from the reach of the Fifth Amendment’s Takings Clause. The complete opposite is true. “Historically, the United States Supreme Court has consistently applied the Takings Clause to the states, and in so doing recognized, at least tacitly, the right of a citizen to sue the state under the Takings Clause for just compensation.” Manning v. Mining & Minerals Div. of the Energy, Minerals & Nat. Res. Dep’t, 144 P.3d 87, 90 (N.M. 2006) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 306-09 (2002); Palazzolo v. Rhode Island, 533 U.S. 606, 614-15 (2001); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-30 (1992)).
The plaintiffs have petitioned the Supreme Court to take the case. The Court should do exactly that. The justices need not even do much work, if they don’t want to. They can just summarily reverse the Fifth Circuit, and endorse, by reference, the reasoning of the district court (technically, a magistrate judge’s recommendation, which the district judge then adopted). If the Supreme Court lets this egregious decision stand, three state governments ruling over a total of some 36 million people, will be free to seize private property and then refuse to pay compensation, without fear of having their actions challenged in either state or federal court.
The Fifth Circuit, which decided this case, has jurisdiction over the states of Louisiana, Texas, and Mississippi.
If the Supreme Court allowed people to sue states directly under the Takings Clause, that still would not make it as easy to sue as if they could sue the state as well under 42 U.S.C. 1983. That statute is more generous than the Takings Clause in some ways — if you win a lawsuit under 42 U.S.C. 1983, the government typically has to pay your attorneys’ fees under 42 U.S.C. 1988. But the Constitution itself doesn’t require violators to pay anyone’s attorneys fees.
