Supreme Court Hears Takings Clause Case

In Devillier v. Texas, the Court considers whether a party can sue a state directly under the Takings Clause of the Fifth Amendment.

Richard Devillier and others own property along Interstate Highway 10 (I-10) in Texas. Due to an increase in flooding, the Texas Department of Transportation (TXDOT) elevated I-10 and installed a concrete median barrier which obstructed natural water flow and led to the flooding of Devillier’s property. TXDOT continued with the construction and extended the barrier, causing extensive damage to other properties.

Devillier and other landowners sued Texas, invoking the Takings Clause, which they argued applied to the states through the Fourteenth Amendment. They argued that the flooding from Hurricane Harvey and Tropical Storm Imelda resulted in a taking of their land. Upon removal to federal court based on federal question jurisdiction, Texas contended that the Fifth Amendment does not provide an avenue to bring a federal takings claim against a state. Instead, Texas asserted that the claim must be brought under federal statute, namely Section 1983. However, the Supreme Court has held that a state is not a “person” under Section 1983, so Texas contended that Devillier’s claim could not proceed. The district court denied Texas’s motion to dismiss and the Fifth Circuit, on appeal, vacated the judgment, finding that the Takings Clause does not, on its own account, provide a cause of action for takings claims against the state.

The central issue is whether a person whose property is taken by a state without compensation may seek redress under the self-executing Takings Clause of the Fifth Amendment even if Congress has not affirmatively provided them with a cause of action.

During oral argument, Justice Elena Kagan asked Texas Solicitor General Aaron Nielson whether there is an ongoing violation of the Constitution in a case where the state has taken private property and refused to compensate the owner. Nielson conceded the violation, but contested its presence as a basis for relief. Devillier’s counsel claimed that the state court system did not provide an available or adequate just compensation remedy for takings. Justice Barrett also noted that an injunction would not redress a past, temporary taking.

Chief Justice Roberts also suggested that the Fifth Circuit’s decision may create a “catch-22” whereby the state may remove a case from its own court to federal court where Section 1983 is pled and then promptly seek to dismiss it for a lack of a remedy there.

This case was argued on January 16, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.