A very short (3 pages) opinion from the U.S. Court of Appeals for the Fifth Circuit in a takings case. In Bay Point Properties, Inc. v. Mississippi Trans. Comm'n, No. 18-60674 (Aug. 27, 2019), the court somewhat cryptically concluded 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 cert petition which the opinion mentions. See slip op. at 2 ("So the property owner, after losing on appeal in state court and unsuccessfully seeking certiorari in the U.S. Supreme Court...").
Read the opinion. There's not a whole lot there, except the court concluding that yes, Eleventh Amendment immunity prevents a state from being sued in federal court for money (even by a state's own citizens, the plain text of the amendment notwithstanding). And that Knick, which was handed down while this case was pending, didn't contradict that, at least directly:
Nor does anything in Knick even suggest, let alone require, reconsideration of longstanding sovereign immunity principles protecting states from suit in federal court. Rather, Knick held only that “a property owner has a claim for a violation of the Takings Clause” cognizable in federal court “as soon as a government takes his property for public use without paying for it.” 139 S. Ct. at 2170. Accordingly, Knick did away with the previous rule requiring “a property owner [to] pursue state procedures for obtaining compensation before bringing a federal suit.” Id. at 2173.
Slip op. at 3.
The court pointed out a Tenth Circuit case decided not too long ago that concluded pretty much the same thing.
Maybe the most interesting part of this otherwise bleh opinion is footnote 1 on page 2:
In its original brief, the property owner asked us to “address the tension” between state sovereign immunity and the right to just compensation under the Fifth and Fourteenth Amendments. That determination, however, is one for the Supreme Court—not this panel. See, e.g., McMurtray v. Holladay, 11 F.3d 499, 504 (5th Cir. 1993) (holding that takings claims under the Fifth Amendment are “barred because under the Eleventh Amendment, a citizen may not sue his own state in federal court”) (citing U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984)).
Slip op. at 2 n.1. Is this argument getting at the self-executing nature of the Just Compensation requirement? Maybe not, since the opinion cites Justice Kagan's Knick dissent for the proposition that takings claims against states depend on a waiver of sovereign immunity, just like takings claims against the feds. Which, as we've suggested before, is a very strange proposition to us, especially in light of the self-executing compensation requirement.
Maybe an issue "for the Supreme Court," as the opinion noted. Maybe.
Bay Point Properties, Inc. v. Mississippi Trans. Comm'n, No. 18-60674 (5th Cir. Aug. 27, 2019)