Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation

A horse is a horse, of course, of course…. unless the horse is the focus of a major takings case, in which a federal court will generate over 100 pages of opinions regarding whether the owner can sue under the Takings Clause to be compensated for its seizure.

The case of Fulton v. Fulton County, recently decided by the US Court of Appeals for the 11th Circuit, arose because Fulton County, Georgia authorities sought to charge Brandon Fulton (no relation to the person the county is named after) with animal cruelty. In the process, they seized his horses. Ultimately, the charges were dropped, but county authorities refused to return Fulton’s horses, or compensate him for them.

For various procedural reasons, he could not sue for compensation under either state law or federal statutes. Therefore, he sought to sue directly under the Takings Clause of the Fifth Amendment, which requires “just compensation” whenever the government takes “private property.” The issue of whether the Takings Clause is “self-executing” – whether people can sue under it in the absence of legislation authorizing a remedy – is one the Supreme Court avoided addressing last year in DeVillier v. Texas (where they held they did not have to reach it because the plaintiff had a remedy under Texas state law, which cold be pursued even in federal court).

The Eleventh Circuit has now addressed the issue in this case, in a divided 2-1 decision, which generated over 100 pages of opinions. To my mind, however, the issue is readily resolved by clear and simple points made early in Judge Robin Rosenbaum’s compelling majority opinion:

In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low hanging fruit. Though the remedy for Tantalus’s hunger and thirst was right at
hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.

Our Founders did not do to us what the Greek gods did to Tantalus. Our Constitution explicitly promises exactly two remedies: “just compensation” if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn’t taunt us by naming these remedies but then holding them out of reach, depending on the whims of the legislature.

So even if Congress doesn’t legislate a procedure by which a person can obtain one of these remedies, the Constitution’s promise is not illusory. A person can bring a case directly invoking either constitutional remedy….

The Dissent responds by saying we are “creat[ing] a new right of action” and leaving “constitutional wreckage in the wake….” But its answer that the Takings Clause includes no direct cause of action ignores the original public meaning of the Clause and transforms the Constitution’s promise of “just compensation” into nothing more than a Tantalus-type taunt. Most respectfully, we don’t think that’s “judicial humility…”; we think it’s judicial abdication. We have a duty to apply the Constitution as written. So we respectfully decline to read out of the Constitution the relief it expressly promises for taken property.

The Framers of the Fifth and Fourteenth Amendments provided a real remedy in “just compensation” for government takings. They guaranteed the ability to recover “just compensation” directly under the Constitution.

I completely agree!  The Takings Clause says the government must pay just compensation whenever it takes private property. No ifs, ands, or buts. And no exception for cases where Congress and state governments don’t legislate a remedy. The whole point of a constitutional right is to constrain the powers of government. Thus, it makes no sense to give that very same government the power to nullify the right in question by failing to provide a legislative remedy.

Moreover, as detailed in the amicus brief I filed in DeVillier (along with the Cato Institute), in Knick v. Township of Scott (2019), the Supreme Court made clear that victims of takings have a right to bring Takings Clause cases directly in federal court, and cannot be relegated to state court (see also my article about Knick and its significance). Still less can they be kept out of court entirely, as would have happened to Mr. Fulton if the Takings Clause were not self-executing.

In dissent, Judge William Pryor argues that Fulton failed to take advantage of various alternative ways to bring a claim. To the extent these alternative paths were in state court, they cannot vitiate his right to bring a claim in federal court. Knick rightly held that federal constitutional takings plaintiffs have a right to go to federal court, as is also true of victims of other constitutional rights violations (see my article on Knick for additional reasons why this is a vital principle). As Judge Rosenbaum notes, “the Takings Clause promises a federal remedy independent of the whims of states.”

As Judge Pryor recognizes, Fulton tried to sue under Section 1983 of the federal Civil Rights Act of 1871, but the suit was dismissed for procedural reasons. Thus, he had no available federal remedy, other than one directly under the Constitution. Even if a statutory path was also available, that should not preclude the constitutional path.

I am also not much impressed by Judge Pryor’s argument that there is a paucity of cases where takings cases were brought directly under the Constitution in the early republic. At that time, the Bill of Rights only applied against the federal government, and that government was not generally understood to have the power of eminent domain. Almost all takings were conducted by state and local governments. Even after the enactment of the Fourteenth Amendment made the Bill of Rights applicable to state governments in 1868, it took courts many decades to recognize that the Takings Clause applies to states and localities. This history is discussed in much greater detail in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. 

Judge Pryor relies extensively on the amicus brief filed by legal scholars James Ely and Julia Mahoney, and Prof. Mahoney’s other writings. He rightly calls them “renowned legal scholars.” But the Ely-Mahoney brief actually cuts against his position. It argues that a direct constitutional remedy is required by the Fifth and Fourteenth Amendments whenever “there are no existing procedures to provide just compensation or the existing procedures are inadequate.” This is just such a case.

In most controversial takings cases, conservative judges tend to side with the pro-property rights side, while more liberal ones tend to support the government. Here, the usual alignments are flipped. Judge Rosenbaum is a liberal Obama appointee, and Judge Nancy Abudu (the other judge in the majority) is a liberal appointed by Biden. Judge Pryor is a prominent conservative judge appointed by George W. Bush. Perhaps differences on property rights are outweighed here by differences over the scope of permissible remedies (conservative judges tend to be more wary of broad remedies for rights claimants than liberal ones).

Regardless, the liberal judges are right here, and Judge Pryor – whose work I otherwise greatly respect – is badly wrong. The Takings Clause means what it says, and neither Congress nor a state government can nullify it by failing to legislate a remedy.