
Note: this is the second of our posts on the U.S. Supreme Court's recent decision in Devillier v. Texas. The first -- which tries to put the weird post-opinion controversy over which party "won" at the Supreme Court into its proper perspective -- is here.
In this post we'll cover the case's facts, the odd procedural path that Texas dragged everyone through (only ultimately abandon a key position once at the Supreme Court), and what the Court actually decided, if anything.
The State Flooding Private Property is a Taking Under Everyone's Constitutions
After the Texas DOT flooded his property as part of a freeway project by creating a dam that caused rainwater to collect on his land, Devillier and other landowners sued the State of Texas for a taking, aka inverse condemnation.
The state flooding someone's property is one of those "classic" cases which are considered takings, triggering the obligation to provide compensation to the owner, even where the government has not formally instituted eminent domain.
But Texas didn't acknowledge its obligation to provide compensation, so Devillier sued Texas for a de facto taking seeking just compensation under both the U.S. and Texas Constitutions.


Devillier Sued Texas For Federal Compensation in Texas's Own Courts
Devillier sued in a Texas court. Importantly, he did not seek redress for his federal compensation rights under a statute, but asserted his right to just compensation directly under the U.S. Constitution. He did not (because he could not) bring this federal constitutional claim pursuant to the commonly-employed procedural vehicle for raising such claims, a post-Civil War civil rights statute 42 U.S.C. § 1983. There, Congress created a cause of action subjecting "any person" who violates someone's federal rights "under color of state law" to liability for legal and equitable remedies.
We often see section 1983 employed in takings cases seeking Fifth Amendment just compensation, but only when the government alleged to be doing the taking is a local (municipal) government. Why? Because the Supreme Court has held that states themselves and their officials are not "persons" covered by the statute.
So if you want to sue a state for just compensation because it has taken your property, you can't use section 1983, and must look elsewhere for the authority to do so.
Devillier: I Don't Need Texas's Preclearance to Sue Texas for Federal Just Compensation (in a Texas Court)
In most cases, before you can sue the government for money it must consent to be subject to lawsuits. Sovereign immunity, grounded in notions that the Crown can do no wrong, seems like both a very un-American concept, and very anachronistic. But in American law, the doctrine is very robust. One question in takings law has plagued the lower courts: does a property owner need the government to waive sovereign immunity before an owner can sue for compensation for a taking?
Devillier thought he didn't need seek permission from either Congress or Texas to sue for just compensation. Government doesn't have the power to take property without providing compensation, and every right has a remedy doesn't it? Or as it is often phrased, a waiver of sovereign immunity isn't necessary to sue for just compensation.
Why so, if a waiver is needed in nearly every other area of law? Because the text of the Fifth Amendment (which is a limitation on the states via the Fourteenth Amendment) lays out the remedy: "nor shall private property be taken for public use, without just compensation." Thus, the U.S. Constitution itself provides him all the authority a property owner needs to bring a claim for compensation if the government has taken property.
He also asserted that the Supreme Court has long described the Just Compensation Clause as "self-executing," which in his view (and the view of many others, us included) means that the Fifth Amendment of its own force and authority allows owners whose property has been taken to sue for just compensation.
That, Devillier argued, means that if Texas had taken private property for public use but hadn't acknowledged its obligation to provide compensation, he could sue for compensation whether or not Texas had consented. Especially in one of Texas's own courts.
Texas's Two-Step: Removal to Federal Court
Before the state trial court got to that question, however, Texas (somewhat unusually) removed the case to federal court. Recall that in certain cases filed in state courts, the defendant has the final choice of forum (state or federal court). If a case could have been brought in federal court in the first instance -- in other words, there is federal jurisdiction over the claim the plaintiff asserts, but the plaintiff has chosen to bring the claim in state court -- the defendant may "remove" it to federal court. Texas did so, alleging federal question jurisdiction.
Check out the Master Complaint filed in federal court. Scroll down to page 25, and Count 2, paragraph 78, for how Devillier pleaded the federal takings claim:
In addition to, and in the alternative to, their claim under the Texas Constitution, Plaintiffs seek recovery for the State’s permanent and/or temporary taking of their real and personal property without paying just compensation in violation of the Takings Clause of the Fifth Amendment of the U.S. Constitution, a self-executing constitutional provision applicable to the State through the Fourteenth Amendment of the U.S. Constitution.
District Court: Just Compensation Clause is Self-Executing
After it removed the case to federal court, Texas asked to dismiss Devillier's case. Here's how the Magistrate Judge described Texas's request:
In its motion to dismiss, the State argues that Plaintiffs’ federal inverse condemnation claim should be dismissed for a number of independent reasons. First, the State contends that Plaintiffs’ federal takings claim cannot be brought directly under the Fifth Amendment, but rather must be brought under 42 U.S.C. § 1983. According to the State, this dooms Plaintiffs’ federal takings claim because § 1983 claims cannot be brought against a state actor. Second, the State argues that Plaintiffs’ federal claims are barred by the applicable statute of limitations. Third, the State insists that Plaintiffs have failed to properly plead a valid federal inverse condemnation claim.
Pet. App. 12a.
The Magistrate recommended denial of Texas's motion. The U.S. District Court agreed, concluding that the Just Compensation Clause is self-executing and thus Devillier had all the permission he needed.
Fifth Circuit: No Cause of Action, No Jurisdiction
But when Texas appealed to the Fifth Circuit, that court held that the federal courts lacked jurisdiction to hear Devillier's federal claim for compensation because property owners like Devillier who claim to have suffered a taking at the hands of a state government do not have a "right of action for takings claims against a state[.]"
Texas, the court concluded, "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."
The Fifth Circuit concluded that the case belonged in Texas state courts (where Devillier had originally brought it, remember) and sent the case back to the federal trial court with instructions to bounce it out of federal court, and "return this case to the state courts."
Texas To Supreme Court: Devillier Is Required To Vindicate His Federal Constitutional Rights in a Texas Court Under Texas Law
Devillier asked the U.S. Supreme Court to review this Question Presented:
May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?
Once at the Supreme Court, Texas continued to argue that you may possess a constitutional right -- and a self-executing remedy -- but that's not enough because you also need a cause of action. What that means is you need to have some ability to bring a lawsuit to enforce your rights and obtain a remedy, and for that you must have some sort of government authorization to use the courts.
But Texas seemed to subtly change its tack. It now claimed to be a champion of property rights! It opened its arguments with this astonishing claim (we say astonishing because it was Texas which had removed Devillier's lawsuit from a Texas court to the federal courts and then sought to dismiss it, a very cynical and wasteful tactic and hardly the kind of thing you'd think a property rights champion would do):
MR. NIELSON: Mr. Chief Justice, and may it please the Court.
The Court will be hard-pressed to find any government more committed to property than Texas. The Texas constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions.
This appeal thus isn't about substantive rights. All Petitioners had to do was use Texas's cause of action.
Tr. at 38-39 (emphasis added).
Rope-a-Dope
Hold on, "all Petitioners had to do was use Texas's cause of action?" Didn't we just say that Devillier filed his lawsuit in a Texas court? Yes, he brought a Texas claim for compensation under the authority of Texas law. And a federal claim for compensation under the authority of federal law (the U.S. Constitution) in a Texas court. Wasn't that enough?
No. Texas claimed that suing for a federal remedy in a Texas court was only a half-measure. Instead, it asserted that Texas law recognized a property owner's ability to sue Texas for federal compensation, so Devillier needed to make clear in his complaint that he was bringing his federal constitutional claim under the authority of Texas law (and Devillier merely bringing his federal claim in a Texas court was not enough to make that clear). If Devillier had only pleaded clearly that he was asserting his federal claim under state procedure, then Texas would have welcomed his federal claim!
Or so it said. It wasn't at all clear that this had been Texas's position all along, and from our perspective it reeked of a late-breaking strategic concession to keep the court from deciding the Question Presented. After all, if Texas had made the position it took in Supreme Court clear when the case was in the lower courts, then everyone could have avoided the sturm und drang for the past several years, and the parties' and the Court's time would not have been wasted.
There were some encouraging signs during the arguments that the Court was skeptical. Several of the Justices, for example, taking Texas to task for shifting the lawsuit from one where Texas argued it could be sued (state court), to one where it argued it couldn't (federal court) -- and then arguing that Devillier could have brought his claim in a Texas court. But like all SCOTUS oral arguments, the Devillier arguments concluded without a decision. All we could do was wait.
Did the Court Actually Decide Anything Other Than Which Party Won the Appeal? (Hint: No)
Last week, we were rewarded with a decision that didn't really decide much of anything. Make no mistake: Devillier definitively won the Supreme Court phase of the case. The Court vacated the dismissal of his case, and sent it back down for more, including explicit directions to allow Devillier to include in his complaint the magic words that Texas claimed were missing. But did the Court decide the Question Presented (does an owner who seeks just compensation for a taking need the legislature to recognize a cause of action)?
No, the unanimous Court said it accepted Texas's oral argument concession that Devillier has always possessed a cause of action to sue for federal compensation because Texas recognizes inverse condemnation under state law. As a consequence the Court concluded there was nothing for it to decide.
The opinion acknowledged that it continues to be a good question whether a property owner needs the government's permission in order to sue for just compensation for a taking. But because Texas (finally) admitted that Devillier does have a procedural vehicle by which he may seek to vindicate his right to compensation, that issue is a no-go here:
Texas state law provides a cause of action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. And although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured this Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one. This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation.
Slip op.at 6-7.
Instead, the Court said that it would wait for a case in which it can be satisfied "of the premise that there is no cause of action." Slip op. at 6. The Court vacated the Fifth Circuit's judgment and remanded the case "for further proceedings consistent with this opinion." Slip op. at 7.
The Supreme Court phase of the case thus ended disappointingly: it's satisfying that Devillier has his win and can continue the fight; but we have no answer from the Supreme Court on the still-open question. What if a state doesn't recognize a state cause of action to raise a federal compensation claim, can a property owner still sue for compensation?
SCOTUS: "[T]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action."
There are some hints in the decision (dicta), although it is too soon in our thinking to tell what those hints eventually might mean. There are a lot of questions remaining.
1. Future cases?
For example, the Court noted that the question of whether the Constitution itself provides a cause of action for compensation "do[es] not arise when property owners have other ways to seek just compensation." Slip op. at 6. And the "other ways" here is a state law cause of action in state court. Does that mean that if a state recognizes an inverse condemnation cause of action like Texas, then there isn't a claim directly under the Takings Clause for compensation?
No, the Fifth Amendment itself may recognize a cause of action, irrespective of state law and section 1983. The opinion recognized that "[t]he absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action." Slip op. at 6. It's just that, like here, the issue will never come up in a case where a state recognizes a process under its own law for a property owner to seek federal compensation. That question will only be answerable in a narrow band of cases where a state does not recognize an inverse condemnation cause of action at all, or if it does, limits the remedy to state constitutional law.
Are there states whose law like that? Yes, we can think of a few. (Stay tuned for more on that.)
2. Williamson County Revived?
Next, doesn't the Court's rule in Devillier -- that if state law recognizes a cause of action for federal compensation, then a property owner can use the state's procedures to vindicate her rights when a state is the defendant -- revive the "state procedures" requirement from Williamson County?
Sort of looks like the same requirement, but no. Before the Court overruled the state procedures requirement in Knick v. Township of Scott, it required property owners to chase state procedures for compensation before coming to federal court on a takings claim. That rule applied to all takings claims, against both state and municipal defendants. Devillier only applies when a state is the defendant, and says if a state recognizes a way to prosecute a claim for federal compensation, then property owners need to use that process to vindicate their federal rights. That way, the Court can avoid the broader questions these issue present -- such as whether a property owner can sue a State in federal court for compensation -- until the right vehicle is presented.
3. So What Does "Self-Executing" Mean?
The Court didn't really clarify what "self-executing" means. At the very least, it means that property owners must have a cause of action for federal just compensation in some court. If a local or municipal government takes your property, you already have a section 1983 cause of action which can be prosecuted in federal court (federal question jurisdiction) or in state court (concurrent jurisdiction). If a State takes your property and state law, like Texas, recognizes a cause of action that "provides a vehicle for takings claims based on both the [State] Constitution and the Takings Clause[,]" slip op. at 7, then go to state court. But if a State takes property without paying, but does not recognize a federal cause of action to vindicate that right, then the property owner may go to [court to be determined]...
4. No More Takings Games?
By declining to consider the Question Presented, and instead holding that Devillier's original claim and his choice of forum are to be respected, the Supreme Court seems to have concluded that the last few years of federal court litigation caused by Texas’s removal and failure to make its position clear were utterly needless, and that Texas should have just let Devillier proceed with his original choice to sue in a Texas court.
The "removal game" (where owners file for compensation in state courts, only to see the government remove the case to federal court and seek dismissal), a tactic the Court has viewed skeptically before, is now quite clearly not at all favored by the Justices. This opinion seems very much like a pushback on the tactics Texas deployed here.
Summing Up
We don’t think that Devillier moved the needle very much at all on the substantive question the Court declined to answer: does the Just Compensation Clause recognize the right of property owners to seek compensation of its own force? That question, and the even larger issue of sovereign immunity, are still very much in play.
As a U.S. Senate report noted once, "'Sovereign immunity or the infallibility of the Crown, so to speak, became embedded in the common law of England and so came into our American law,' but 'this principle is not appropriate where the courts are established … to serve the people.'"
Devillier v. Texas, No. 22-913 (U.S. Apr. 16, 2023)