It appears that the U.S. Court of Appeals for the Eleventh Circuit has addressed the issue the U.S. Supreme Court sidestepped recently in DeVillier v. Texas, 601 U.S. 285 (2024): do you need Congress’s ok to sue for just compensation for a taking?  

In Fulton v. Fulton County Bd of Commissioners, No. 22012041 (July 31, 2025), a 2-1 panel of the court held that the Just Compensation Clause is indeed “self-executing,” meaning that even in the absence of a legislative recognition of a cause of action, an owner whose private property has (allegedly) been taken by government action may sue for compensation. 

The opinion starts off dramatically, with this:

In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low-hanging fruit. Though the remedy for Tantalus’s hunger and thirst was right at hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.

Our Founders did not do to us what the Greek gods did to Tantalus. 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.

The question here was whether Mr. Fulton could sue the County for just compensation, even though he could not rely on section 1983 as the vehicle. “Fulton initially tried to bring an action under 42 U.S.C. § 1983. That statute allows suits against municipalities who, through official policies or customs, violate the Constitution.” Slip op. at 3. Problem was, he could not allege that the County was acting under an official policy or custom. So he sought to amend the complaint to allege a claim for just compensation directly under the Fifth Amendment. 

The Eleventh Circuit noted that SCOTUS avoided the issue in DeVillier, and left it open. “Now, after careful review of the text, structure, and history of the Constitution, we concluded that the Takings clause does directly authorize suit.” Slip op. at 4. The court’s analysis is lengthy, but well worth your time to review. Items included: original public meaning, history and tradition, the difference between a cause of action and subject matter jurisdiction, and a rejection of any attempt to resurrect Williamson County‘s overruled “state procedures” requirement. 

Slide down to page 16 of the majority opinion for the really good stuff, the “main event” as the court put it. Here’s the summary:

The Takings Clause provides that no “private property [shall] be taken for public use, without just compensation.” U.S. CONST. amend. V. Three major points about this text and how it fits into the Constitution’s overall structure stand out: (1) the Takings Clause guarantees “just compensation”—a monetary remedy—when the government takes private property; (2) the Takings Clause is “self-executing,” Knick v. Township of Scott, 588 U.S. 180, 194 (2019); and (3) the Takings Clause is one of only two constitutional guarantees that provides its own remedy. Together, these three points lead to the conclusion that the Constitution automatically provides Americans with the federal right to sue for “just compensation.” In this subsection, we explain each point and why it supports that conclusion.

Slip op. at 16. In sum, “[b]ecause property owners have an automatic right to a form of legal relief, it follows they have an automatic cause of action to get that relief. They are instantly entitled to receive “just compensation” in the courts.” Slip op. at 19.

Without the direct remedy, property owners would remain at the whim of the legislature. As the court put it, “the intrinsic cause of action within the Takings Clause ensures meaning behind the constitutional guarantee.” Slip op. at 20. And the Just Compensation Clause is sui generis in that it specifies its own remedy, so there’s not (ooh, scary!) a danger that this will turn into Bivens. Slip op. at 21-22. 

One of the more interesting parts of the majority’s analysis is where it draws an analogy to how the Supreme Court treats the one other constitutional right that specifies its own remedy, the writ of habeas corpus. See slip op. at 21-25. The bottom line is that when the legislature provides a cause of action that allows a plaintiff to sue for the full scope of remedies available under the constitution, there’s no problem with making a plaintiff adhere to that remedy. But if the legislature narrows the scope of the constitutional remedy, either expressly or through inaction, “the underlying constitutional remedy remains directly available.” Slip op. at 25. 

There’s more in the opinion that is worth your time, especially the history and tradition sections. Check them out for sure. 

One judge (Chief Judge Pryor) dissented. He didn’t disagree with the method of analysis (text, history, and tradition), but viewed each of these as not suggesting the Just Compensation Clause claim may proceed without Congressional approval. See Dissent at 1 (“The text and history of the Clause, the structure of the Constitution, and Supreme Court precedent make clear that we should not imply a right of action. But the majority ignores that history, usurps the role of Congress, and invents a right of action directly under the Constitution against a county even though property owners today have more ways to vindicate their constitutional right to just compensation than ever before.”

With a 2-1 panel, what’s next? En banc petition very likely and more after that we predict.  

Fulton v. Fulton County Bd of Commissioners, No. 2022-12041 (11th Cir. July 31, 2025) 

Continue Reading CA11: Congress Doesn’t Need To Legislate A Cause Of Action For Just Compensation