The US Supreme Court has agreed to hear Devillier v. State of Texas, Docket No. 22-913, a suit by the Devilliers and others to recover for damages to their land caused by the State.
The facts are described in the Devillier’s Petition for Writ of Certiorari:
This case arises out of a series of inverse-condemnation cases filed in Texas state courts, all alleging that a Texas highway project had caused widespread flooding. The flooding was no accident: In an effort to make sure that the eastbound lanes of Interstate Highway 10 (“IH-10”) would be available as an evacuation route in the event of a flood, the Texas Department of Transportation raised the highway’s elevation, added two additional lanes, and installed a nearly three-foot “impenetrable, solid concrete traffic barrier on the highway’s centerline.” The median barrier worked as intended, creating a weir that barricaded rainfall on the north side: water that would otherwise have flowed south into the Gulf of Mexico stopped deat at Highway 10. Texas’s plan worked, at least in that it ensured that part of the road remained navigable even in flood conditions. But it was not without cost. Keeping the south side of IH-10 dry meant keeping the north side of IH-10 wet and, in times of heavy rainfall, flooded entirely.
A group of landowners whose lands were flooded sued the State for compensation under the takings clauses of the Texas and US Constitutions. These types of suits are called “inverse condemnation” suits; in a standard condemnation suit, the government sues to take private land and the court determines what compensation the government must pay, but in an inverse condemnation suit the landowner claims the government has taken its land without first going through the condemnation process. The landowners’ suits were brought in state court, but the Texas Attorney General, representing the State, removed the cases to the US District Court, which it was entitled to do because the landowners made a claim under federal law: the Fifth Amendment to the US Constitution, which says private property may not “be taken for public use without just compensation.”
But, after removing the cases to federal court, the Attorney General moved to dismiss the cases. The AG argued that the Fifth Amendment did not independently grant a cause of action against the State without some enabling legislation. The District Court disagreed and denied the AG’s motion; the AG appealed to the Fifth Circuit Court of Appeals, which reversed and remanded in a one-sentence opinion. But at the request of one of the Fifth Circuit judges, the court was polled to determine whether it should grant the Devilliers’ motion for rehearing. Five judges voted to grant rehearing, eleven voted against. On rehearing, Judge Higginbotham wrote a concurring opinion and Judge Oldham, joined by Judges Smith, Elrod, Engelhardt, and Wilson, wrote a vigorous dissent.
The US Supreme Court has held that suits against states for inverse condemnation must first be brought in state courts, even when alleging violation of the Fifth Amendment; the US Supreme Court has jurisdiction to review the decision on appeal from a state court case, but a plaintiff cannot sue first in federal court. But a State may remove to federal court a case brought against it which alleges violation of the Fifth Amendment, which Texas did here. But if the Fifth Circuit’s decision stands, the practical effect is that Texas landowners have no remedy under the US Constitution for takings of land by the State without just compensation. As Judge Oldam’s dissent points out:
The panel decision reduces the Takings Clause to nothing. Think about what now happens when landowners in our Circuit have their property taken by the State. The landowner can try to bring a federal takings claim in state court; the State removes; the federal court must assert jurisdiction and dismiss the claim with prejudice under the panel’s published decision in this case.
In effect, a Catch-22.
The Texas Attorney General’s office goes to great lengths to erect procedural barriers against inverse takings claims against the State, never allowing the claimants to reach the merits of their claim. This is one such case. After many years in the courts, the Devilliers have so far been unable to have a hearing on the merits.