Here’s the latest (a development we predicted) in a case we’ve been following. In this Order, the U.S. Court of Appeals for the Eleventh Circuit confirmed that it will be rehearing the Fulton case en banc.

As you recall, last year a 2-1 panel of the court held that an owner whose property has been taken does not need Congress to have created a cause of action, and may directly sue for just compensation under the constitution.

That’s right, the “self-executing just compensation” issue that the Supreme Court dodged in DeVillier.

Here’s our post on the panel decision, which made our list of best cases of 2025 and was worthy of a student-authored Note in the Harvard Law Review.

The short story to refresh your recollection: Fulton brought a takings case against the county (confusingly also named Fulton). Municipal governments, as you know, are generally amenable to being sued as a “person” under section 1983 for constitutional and other civil rights violations. But because the county had qualified immunity (the complaint did not — and apparently could not — allege the county was acting under a custom or policy), the section 1983 cause of action and remedy were not available.

So the owner amended the complaint to sue the county directly under the Fifth Amendment’s Just Compensation Clause, which limits States and their instrumentalities under the Fourteenth Amendment’s Due Process Clause. The 2-judge panel majority concluded you don’t need Congress’s permission to sue for just compensation:

Our Constitution explicitly promises exactly two remedies: “just compensation” if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn’t taunt us by naming these remedies but then holding them out of reach, de-pending on the whims of the legislature.

So even if Congress doesn’t legislate a procedure by which a person can obtain one of these remedies, the Constitution’s promise is not illusory. A person can bring a case directly invoking either constitutional remedy.

Slip op. at 1.

That opinion is now vacated as we await further.

Now to wait and see. Stay tuned.

Order, Fulton v. Fulton County Bd. of Commissioners, No. 22-12041 (11th Cir. May 8, 2026)