Devillier v. State of Texas ( 2022 )

Case: 21-40750 Document: 00516555481 Page: 1 Date Filed: 11/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2022
No. 21-40750 Lyle W. Cayce
Clerk
Richard Devillier; Wendy Devillier; Steven Devillier;
Rhonda Devillier; Barbara Devillier; et al,
Plaintiffs—Appellees,
versus
State of Texas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 3:20-CV-223
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Per Curiam:
The State of Texas appeals the district court’s decision that Plaintiffs’
federal Taking Clause claims against the State may proceed in federal court.
Because we hold that the Fifth Amendment Takings Clause as applied to the
states through the Fourteenth Amendment does not provide a right of action
Case: 21-40750 Document: 00516555481 Page: 2 Date Filed: 11/23/2022
No. 21-40750
for takings claims against a state, 1 we VACATE the district court’s decision
for want of jurisdiction and REMAND with instructions to return this case
to the state courts. The Supreme Court of Texas recognizes takings claims
under the federal and state constitutions, 2 with differing remedies and
constraints turning on the character and nature of the taking; 3 nothing in this
description of Texas law is intended to replace its role as the sole determinant
of Texas state law. 4 As such, this Court lacks jurisdiction to review these
claims. 5
1
See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“[A] federal court’s authority
to recognize a damages remedy must rest at bottom on a statute enacted by Congress.”);
Azul–Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding that a
takings plaintiff has “no cause of action directly under the United States Constitution”),
cert. denied, 506 U.S. 1081 (1993).
2
See City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022) (“Under our
[federal and state] constitutions, waiver occurs when the government refuses to
acknowledge its intentional taking of private property for public use. A suit based on this
waiver is known as an ‘inverse condemnation’ claim.”); see also Gutersloh v. Texas, No. 93-
8729, 25 F.3d 1044, 994 WL 261047, *1 (5th Cir. 1994) (unpublished per curiam) (“[The
State] . . . admits, the courts of the State of Texas are open to inverse condemnation damage
claims against state agencies on the basis of the Fifth Amendment, as applied to the states
through the Fourteenth Amendment, as well as on the basis of the Texas Constitution and
laws.”).
3
See Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 176 S.W.3d 680, 683–84 (Tex.
App.—Dallas 2005, pet. denied) (noting that Texas courts apply a two-year limitations
period to takings claims for “damaged” property and a ten-year limitations period to
takings claims for “taken” property).
4
See, e.g., San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 623 (Tex. 2021),
reh’g denied (Sept. 3, 2021) (“[T]he owner of private property may bring a common-law
action for inverse condemnation.”).
5
Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 588 (5th Cir. 2022) (noting that
federal-question jurisdiction will lie over state-law claims only if “resolving a federal issue
is necessary to resolution of the state-law claim” (quoting Lamar Co., L.L.C. v. Miss.
Transp. Comm’n, 976 F.3d 524, 529 (5th Cir. 2020))).
2