Here’s the cert petition, filed today (by the same folks who brought you Knick v. Township of Scott, 139 S. Ct. 393 (1922)), which poses this straightforward question:
Whether the “self-executing” Just Compensation Clause abrogates a State’s Eleventh Amendment immunity, allowing a property owner to sue the State for a taking of property.
Now before you pooh-pooh the notion that you can sue a State for retrospective money damages in federal court despite the Eleventh Amendment, take a read. This is a topic which we’ve been furiously researching since Knick (more on that down the road a bit), and the issue is not as clearly on the side of “no you can’t” as you might think.
As we noted in this short post a couple of months ago, the Fifth Circuit’s opinion in Bay Point Properties, Inc. v. Mississippi Trans. Comm’n, 937 F.3d 454 (5th Cir. 2019) made short work of the argument, holding that a property owner who asserted that it was not fully compensated in state court inverse condemnation case, could not then sue the state DOT in federal court for the difference. (If this case sounds somewhat familiar to you, it does to us also. We were counsel for the property owner on the earlier denied cert petition which the opinion and cert petition mention.
A footnote in the Fifth Circuit’s opinion presaged this cert petition, effectively booting the case upstairs to SCOTUS. And here we are now.
So check it out and follow along. We will be.