The United States Supreme Court issued a unanimous decision in Devillier v. Texas, allowing Texas landowners’ takings claims to proceed against the State of Texas under an amended complaint.  [Read Opinion here.]

Image by Zach Dulli 

Background

A group of Texas farmers, ranchers, and rural landowners filed an inverse condemnation action against the State of Texas claiming that the Texas Department of Transportation’s (DOT) widening of I-10 intentionally caused widespread flooding on their property resulting in a taking for which they were due just compensation.

The Plaintiffs are more than 120 landowners who own property east of Houston on the north side of I-10 in Jefferson and Chambers Counties. They claimed that DOT’s widening project raised the I-10 roadway and built a three-foot-high impenetrable concrete dam across the middle of the roadway that separates the eastbound and westbound lanes.  Plaintiffs claimed the purpose of this dam was to keep the south side of the highway dry during heavy rains, but that resulted in flooding their land north of the highway.  That is what occurred in 2017 when Hurricane Harvey hit and their properties were flooded and subsequently thereafter in other storms.  On the eve of Tropical Storm Imelda in 2019, the landowners asked DOT to remove some portions of the dam, or to allow the landowners to do so.  This request was denied, and flooding occurred again.

Litigation

The Plaintiffs brought takings lawsuits under both the Texas and United States Constitutions in Texas state court.  Texas removed the cases to federal court where they were consolidated into one case. Texas then filed a motion to dismiss claiming that the Plaintiffs were not entitled to sue directly under the Fifth Amendment.  Instead, Texas argued, a takings claim could only be made based upon a statutory provision, 42 U.S.C. Section 1983, under which Texas cannot be sued.  Thus, Texas claimed that the landowners had no way to sue the state for a taking  under the US Constitution.

A federal magistrate judge recommended that Texas’ Motion to Dismiss be denied.  He said that Texas’ logic would allow states to take private property and leave property owners with no federal constitutional remedy.  This would, he said, “eviscerate hundreds of years of Constitutional law in one fell swoop.”  The District Court adopted the magistrate’s report and recommendation and denied the Motion to Dismiss.

Texas sought an immediate appeal of that order and the question of whether property owners may sue under the Fifth Amendment without invoking Section 1983.

The United States Court of Appeals for the Fifth Circuit reversed in a one paragraph opinion, holding that the Fifth Amendment does not provide a right of action for takings claims against a state. See 53 F.4th 904.  The Plaintiffs sought a rehearing, which was denied, and several opinions were issued. See 63 F.4th 416.  Judge Higginbotham wrote that federal courts lack jurisdiction to hear takings claims absent a claim under Section 1983.  Judge Higginson wrote that only the legislature, by statue, can create a cause of action against the State, and since that did not occur here, the case should be dismissed.  Judge Higginson said that “implying constitutional causes of action is a disfavored judicial activity” and that courts should not undertake this type of activity “if there is any reason to think that Congress might be better equipped to create a damages remedy.”  Judge Oldham dissented, writing that he believes that history shows the Fifth Amendment to be “self-executing” allowing claims for compensation without need for a statutory claim.

The Plaintiffs sought review by the United States Supreme Court.  The Petition for Certiorari was granted on the following 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?”  Oral argument was held on January 16, and may be listened to here.

US Supreme Court Opinion

Justice Clarence Thomas authored the unanimous opinion of the Court.  [Read Opinion here.]

The Court noted that this case raised only a question regarding the procedural vehicle by which a landowner may seek redress for a taking.  Typically, a lawsuit to invoke or assert a constitutional right is brought under the authority of another statute, such as 42 USC 1983.  The landowner argued that claims under the Fifth Amendment is an exception to this, meaning that the landowner believes the Fifth Amendment is “self executing” and a claim can be brought based solely upon the Fifth Amendment.  Texas, conversely, argues that a claim under the Fifth Amendment must be based on a statutory basis.

The Court noted that “our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.”  However, the Court continued that “this case does not require us to resolve that question.”  The Court held that the Texas state law inverse-condemnation cause of action provides the vehicle for a takings claim based on both the Texas Constitution and the Fifth Amendment of the US Constitution. Because the landowners do have a state cause of action under which to litigate their federal Fifth Amendment claims, the Court need not address whether the Fifth Amendment is self-executing if no such statutory claim exists.

In order for the landowners to rely upon the Texas inverse condemnation action, they will need to amend their Complaint, but Texas assured the Court it would not oppose such an amendment.

The judgement of the US Court of Appeals for the Fifth Circuit was vacated and the case remanded.

Why This Matters

Because the US Supreme Court did not address the larger question of whether the Fifth Amendment is self-executing, this decision likely does not have broader impacts on future claims or litigants.  Certainly for the Plaintiff landowners in this case, this decision is important to allow their Fifth Amendment claims against Texas to proceed.  Keep in mind that none of the litigation to this point addresses the merits of the case, whether a taking occurred, or the value that the landowners might be owed if a taking did occur.  All of this will be decided as litigation progresses.